131 FERC ¶ 61,045

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Part 358

[Docket No. RM07-1-002; Order No. 717-C] 

Standards of Conduct for Transmission Providers

(Issued April 16, 2010)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Order on Rehearing and Clarification.

SUMMARY: The Federal Energy Regulatory Commission (Commission) issued Order

No. 717-A to address requests for rehearing and make clearer the Standards of Conduct

as implemented by Order No. 717. The Commission issued Order No. 717-B to address

expedited requests for rehearing and clarification concerning paragraph 80 of Order

No. 717-A and whether an employee who is not making business decisions about contract

non-price terms and conditions is considered a “marketing function employee.” This

order addresses additional requests for rehearing and clarification concerning Order

No. 717-A.

EFFECTIVE DATE: This rule will become effective [Insert_Date 30 days after

publication in the FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT:

Leonard Tao

Office of the General Counsel – Energy Markets

Federal Energy Regulatory Commission

888 First Street, NE

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 2

Washington, DC 20426

(202) 502-8214

SUPPLEMENTARY INFORMATION:

20100416-3053 FERC PDF (Unofficial) 04/16/2010
131 FERC ¶ 61,045

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Jon Wellinghoff, Chairman;

Marc Spitzer, Philip D. Moeller,

and John R. Norris.

Standards of Conduct for Transmission Providers Docket No. RM07-1-002

ORDER NO. 717-C 

ORDER ON REHEARING AND CLARIFICATION

(Issued April 16, 2010)

I. Introduction

1. On October 16, 2008, the Commission issued Order No. 717 amending the

Standards of Conduct for Transmission Providers (the Standards of Conduct or the

Standards) to make them clearer and to refocus the rules on the areas where there is the

greatest potential for abuse.

1 On October 15, 2009, the Commission issued Order

No. 717-A to address requests for rehearing and clarification of Order No. 717, largely

affirming the reforms adopted in Order No. 717.

2 On November 16, 2009, the

Commission issued Order No. 717-B to address expedited requests for rehearing and

1 Standards of Conduct for Transmission Providers, Order No. 717, 73 FR 63796

(Oct. 27, 2008), FERC Stats. & Regs. ¶ 31,280 (2008) (Order No. 717).

2 Standards of Conduct for Transmission Providers, Order No. 717-A, 74 FR

54463 (Oct. 22, 2009), FERC Stats. & Regs. ¶ 31,297 (2009) (Order No. 717-A).

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 2

clarification concerning paragraph 80 of Order No. 717-A and whether an employee who

is not making business decisions about contract non-price terms and conditions is

considered a “marketing function employee.”

3 In this order, the Commission grants

additional clarification concerning matters petitioners raised regarding the Commission’s

determinations in Order No. 717-A.

II. Requests for Clarification and/or Rehearing

2. Edison Electric Institute (EEI), Transmission Dependent Utility Systems (TDUS),

Transmission Access Policy Study Group (TAPS), National Rural Electric Cooperative

Association (NRECA), Associated Electric Cooperative (AEC), Basin Electric Power

Cooperative (Basin Electric), Xcel Energy Services (Xcel), E.ON U.S., Avista

Corporation (Avista), the American Public Gas Association (APGA) and Western

Utilities

4 filed requests for clarification, or in the alternative, requests for rehearing. The

3 Standards of Conduct for Transmission Providers, Order No. 717-B, 74 FR

60153 (Nov. 20, 2009), 129 FERC ¶ 61,123 (Nov. 16, 2009) (Order No. 717-B). On

October 30, 2009, EEI filed a request for expedited clarification of a single issue

addressed in Order No. 717-A. The Commission determined that it should address this

issue expeditiously even though the time allowed under the regulations for filing

rehearing requests had not yet expired. For this reason, the Commission issued Order

No. 717-B on November 16, 2009, in which it addressed a single clarification request of

EEI, Western Utilities, Otter Tail and Central Vermont. All other timely requests for

rehearing, i.e. those filed by November 16, 2009, are addressed in this order.

4 Western Utilities is comprised of Arizona Public Service Company, Avista

Corporation, El Paso Electric Company, Idaho Power Company, Pacific Gas and Electric

Company, PacifiCorp, Portland General Electric Company, Puget Sound Energy,

Southern California Edison Company, and Tucson Electric Power Company.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 3

Tri-State Generation and Transmission Association (Tri-State) filed in support of the

NRECA’s request. The Electric Power Supply Association (EPSA) filed a motion for

leave to answer and an answer to Western Utilities’ request for clarification and

rehearing.

5

III. Discussion

A. Procedural Matters

3. Rule 213(a)(2) of the Commission’s Rules of Practice and Procedure

6 prohibits an

answer to a request for rehearing unless otherwise ordered by the decisional authority.

We will accept the EPSA’s answer to Western Utilities’ motion for clarification and/or

request for rehearing because it provided information that assisted us in our decisionmaking process.

B. Independent Functioning Rule

(1) Transmission Function Employees

4. In paragraph 27 of Order No. 717-A, the Commission clarified that personnel

engaged in granting or denying transmission service requests are transmission function

employees because the act of granting or denying transmission service requests is an

integral part of “planning, directing, organizing or carrying out of day-to-day

5 EPSA objects to Western Utilities’ characterization of its filing as a request for

clarification.

6 18 CFR 385.213(a)(2) (2009).

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 4

transmission operations.”

7 The Commission then elaborated in this paragraph that the

term “transmission function employee” includes “an employee responsible for

performing system impact studies or determining whether the transmission system can

support the requested services as this type of employee is planning, directing, organizing

or carrying out the day-to-day transmission operations.”

8

Requests for Rehearing and Clarification

5. EEI, Western Utilities, Xcel, Avista and Basin Electric argue that paragraph 27 of

Order No. 717-A overruled paragraph 147 of Order No. 717 in which the Commission

stated that so long as the preparation of system impact studies “do[es] not implicate the

day-to-day operation of the transmission system, they are not transmission functions.”

9

The parties request that the Commission reconsider its statement in Order No. 717-A.

6. Western Utilities argues that in many instances, system impact studies have

nothing to do with day-to-day operations of the transmission system. Western Utilities

states that some studies are used to assess whether any additional costs may be incurred

in order to provide the requested transmission service. Western Utilities further states

that where such studies are required, they trigger the process for determining the

modifications needed to provide the service at some future date and, thus, are not day-to7 Order No. 717-A at P 27.

8 Id.

9 Order No. 717 at P 147.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 5

day transmission operations. Western Utilities requests that the Commission clarify that

studies related to determining the upgrades necessary to the transmission system to

provide service, including system impact studies, do not qualify as Transmission

Function activities, because they fall under the category of “long-range planning.”

7. EPSA responds to Western Utilities’ argument by stating that transmission system

impact studies do have an impact on day-to-day transmission operations as these studies

provide significant insight into non-public development plans of market participants and

opportunities for additional investments and that these studies are a core function of

transmission providers.

8. Avista states that studies related to interconnection requests, which identify

interconnection facilities needed to interconnect a new generator as an energy resource or

network resource, do not convey any rights to deliver electricity to any specific customer

or point of delivery and do not implicate the day-to-day operation of the transmission

system.

9. In the event that the Commission does not grant the requested clarification, Basin

Electric asks the Commission to extend the date for compliance with paragraph 27 to 90

days after the date of this order.

Commission Determination

10. We deny the requests to reconsider paragraph 27 in Order No. 717-A. The

Commission finds that paragraph 27 of Order No. 717-A is not inconsistent with the

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 6

Commission’s findings in paragraph 147 of Order No. 717. In essence, certain protestors

argue that the Commission’s finding in Order No. 717-A that a “transmission function

employee” includes an employee responsible for performing system impact studies is

inconsistent with the Commission’s finding in Order No. 717 that so long as the

preparation of system impact studies “do[es[ not implicate the day-to-day operation of the

transmission system, they are not transmission functions.”

10 In order to reconcile these

seemingly inconsistent statements, these Commission findings must be viewed in the

context of the protestors’ requests for clarification. Specifically, in Order No. 717 and

Order No. 717-A, the Commission determined whether system impact studies performed

pursuant to narrowly described fact scenarios would lead to a grant or denial of

transmission service.

11. In paragraph 147 of Order No. 717, we granted a request for clarification from

Idaho Power Company that asked whether long-range planning functions such as

integrated resource planning and preparation of system impact studies are transmission

functions. The Commission stated that “so long as these activities do not implicate the

day-to-day operation of the transmission system, they are not transmission functions.”

11

Thus, Order No. 717 responded to a narrow request for clarification concerning

integrated resource planning and the conduct of system impact studies for long-range

10 Id. See also Order No. 717-A at P 27.

11 Order No. 717 at P 147.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 7

planning.

12 The Commission did not state in Order No. 717 that the conduct of system

impact studies is at all times a long-range planning function, but only recognized that, in

some cases, the preparation of system impact studies might not implicate the day-to-day

operation of the transmission system. The protestors are simply incorrect in their

assertion that the Commission found in Order No. 717 that preparation of a system

impact study can never be considered a transmission function.

12. Similarly, in paragraph 27 of Order No. 717-A, the Commission granted another

narrow request for clarification, which asked whether transmission function employees

include just the employees who post on the OASIS that a particular request has been

granted or denied or also those employees who are responsible for performing the

underlying system impact studies or otherwise determining whether the transmission

system can support the requested services.

13 In response, the Commission first clarified

that personnel engaged in granting or denying transmission service requests are

transmission function employees because the act of granting or denying transmission

service requests is an integral part of “planning, directing, organizing or carrying out of

day-to-day transmission operations”

14

and then elaborated, in response to the second part

of the clarification request that the term “transmission function employee” includes an

12 Id.

13 Order No. 717-A at P 26.

14 Id. P 27.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 8

employee responsible for performing system impact studies or determining whether the

transmission system can support the requested services because the act of granting or

denying transmission service requests is an integral part of “carrying out of day-to-day

transmission operations.”

15

13. While the language in paragraph 27 of Order No. 717-A could have been more

artfully worded, the Commission in this paragraph intended to clarify that, in the context

of an employee conducting a system impact study to determine whether a transmission

system can support a transmission service request, such an employee’s act of performing

a system impact study would necessarily classify that employee as a “transmission

function employee.” The Commission intended the clarification in this paragraph to

apply only to the situation in which an employee conducts a system impact study to

determine whether a transmission system can support a transmission service request, and

not to every situation in which an employee conducts a system impact study.

14. In making the clarification in paragraph 27 of Order No. 717-A, the Commission

focused on the § 358.3(h) definition of “transmission function” as the “. . . carrying out of

day-to day transmission operations, including the granting and denying of transmission

service requests.”

16

15 Id.

16 18 CFR 358.3(h).

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 9

15. EEI argues that “it is the tests that determine whether transmission is available, not

the testers.”17 As such, EEI contends that performing a system impact study is not dayto-day control over the operation of the transmission system.

18 While a “tester” may not

make the determination to grant or deny transmission service, EEI’s argument ignores the

fact that it is the knowledge that an employee obtains while conducting a system impact

study in response to a transmission service request that could be used to favor an affiliate

over its competition. For this reason, we find that a “tester” who grants and denies

transmission service requests by disclosing the results of a test is engaging in

“transmission functions” as defined in § 358.3(h).

19

16. However, we clarify that a system impact study performed pursuant to a request

for energy resource interconnection service or network resource interconnection service

is similar to long-range planning and therefore not a transmission function, because the

focus of such a study is to determine the impact of the proposed interconnection on the

safety and reliability of the transmission provider’s transmission system, but without

conveying a right to transmission service.

20 Accordingly, we find that the performance of

17 EEI Nov. 16, 2009 Request for Clarification at 4.

18 Id.

19 18 CFR 358.3(h).

20 See Standardization of Small Generator Interconnection Agreements and

Procedures, Order No. 2003, FERC Stats. & Regs. ¶ 31,146 (2003) (Order No. 2003),

order on reh’g, Order No. 2003-A, FERC Stats. & Regs. ¶ 31,160, order on reh’g, Order

(continued)

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 10

a system impact study in the context of evaluating an energy resource interconnection

service and network resource interconnection service is not a transmission function.

17. Similarly, we find that the performance of a system impact study that is not a part

of day-to-day transmission operations and performed solely to determine the transmission

system upgrades necessary to provide service is a part of long-range planning.

Accordingly, we clarify that a system impact study performed solely to assess what, if

any, additional costs may be incurred in order to provide transmission service is not a

transmission function so long as the performance of this system impact study is not

carried out as part of day-to-day transmission operations, including the granting or

denying of transmission service.

18. In light of the Commission’s denial of the requests to reconsider paragraph 27 of

Order No. 717-A, the Commission grants Basin Electric’s request to extend the date of

No. 2003-B, FERC Stats. & Regs. ¶ 31,171 (2004), order on reh’g, Order No. 2003-C,

FERC Stats. & Regs. ¶ 31,190 (2005), aff’d sub nom. Nat’l Ass’n of Regulatory Util.

Comm’rs v. FERC, 475 F.3d 1277 (D.C. Cir. 2007); see also Notice Clarifying

Compliance Procedures, 106 FERC ¶ 61,009 (2004). In Order No. 2003 at P 767, the

Commission stated the following: “Both Energy Resource Interconnection Service and

Network Resource Interconnection Service provide for the construction of Network

Upgrades that would allow the Interconnection Customer to flow the output of its

Generating Facility onto the Transmission Provider's Transmission System in a safe and

reliable manner. However, . . . neither Energy Resource Interconnection Service nor

Network Resource Interconnection Service in and of itself conveys the right to do so.

Moreover, neither type of Interconnection Service constitutes a reservation of

transmission capacity. The Interconnection Customer, load or other market participant

would have to request either point-to-point or Network Integration Transmission Service

under the Transmission Provider's OATT in order to receive the delivery service that is a

prerequisite to flowing power onto the system.”

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 11

compliance with paragraph 27 of Order No. 717-A to ninety (90) days after the date of

this order.

(2) Marketing Functions

19. In Order No. 717-A, we clarified in paragraph 40 that “if an employee of a

generation and transmission cooperative simply serves retail load and does not engage in

activities included in the ‘marketing functions’ definition in § 358.3, then this employee

is not a ‘marketing function employee’.”

Requests for Rehearing and Clarification

20. TAPS requests clarification that a generation and transmission cooperative’s sales

to its distribution cooperative members and a municipal joint action agency’s sales to its

municipal distribution utility members are analogous to a vertically integrated utility’s

retail sales function and, therefore, the employees of a generation and transmission

cooperative, as well as the employees of a municipal joint action agency are not

“marketing function” employees for the purposes of the Standards of Conduct. Similarly,

TDUS, NRECA, Tri-State, AEC and Basin Electric request clarification that wholesale

sales of electric energy and capacity by generation and transmission electric cooperatives

to their distribution cooperative members do not fall within the scope of marketing

functions. TAPS argues that paragraph 40 of Order No. 717-A creates ambiguity. TAPS

states that generation and transmission cooperatives are not technically “serv[ing] retail

load.” TAPS further argues that because generation and transmission cooperatives are

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 12

engaged in functions almost identical to serving retail load, there is an ambiguity between

what it thinks the Commission intended to state and the language in Order No. 717-A.

Commission Determination

21. We will grant the requested clarification regarding generation and transmission

cooperatives. In Order No. 888-A, the Commission clarified that if a distribution

cooperative sought open access transmission service from a Transmission Provider, only

that specific distribution cooperative, not its member distribution cooperatives, would be

required to offer transmission service. The Commission determined that generation and

transmission cooperatives were not affiliates of their distribution cooperatives for

purposes of application of the “reciprocal transmission requirement” of Order No. 888.

21

Subsequently, in Order No. 2004-A, we stated that generation and transmission

cooperatives are not subject to the Standards of Conduct consistent with the policies

established under Order No. 888.

22 We find that the adoption of the employee functional

approach in the Standards of Conduct does not warrant a change in our treatment of G&T

cooperatives. Therefore, we clarify that sales of power by generation and transmission

cooperatives to their member generation and transmission cooperatives or to their

member distribution cooperatives do not constitute marketing functions under the

21 Order No. 888-A, FERC Stats. & Regs., Regulations Preambles July 1996-

December 2000 ¶ 31,048 at 30,366.

22 Order No. 2004-A at P 27.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 13

Standards of Conduct. Similarly, a municipal joint action agency, which is a public

agency that provides power to its municipal member-owners, does not perform a

marketing function when selling power to those members.

(3) Marketing Function Employees

22. In paragraph 80 of Order No. 717-A, the Commission stated the following:

The Commission clarifies that an employee in the legal, finance or

regulatory division of a jurisdictional entity, whose intermittent day-to-day

duties include the drafting and redrafting of non-price terms and

conditions of, or exemptions to, umbrella agreements is a “marketing

function employee.” “Marketing functions” are not limited to only price

terms and conditions of a contract, because non-price terms and conditions

of a contract could contain information that an affiliate could use to its

advantage. For example, delivery or hub locations in a contract are nonprice terms that could be used to favor an affiliate. In addition, negotiated

terms and conditions could affect the substantive rights of the parties. For

this reason, we decline to make a generic finding to limit “marketing

functions” to only price terms and conditions, but will consider waiver

requests concerning an employee whose intermittent duties involve

drafting non-price terms and conditions.

23

23. In Order No. 717-B, the Commission granted limited rehearing and clarification to

address expedited clarification requests regarding paragraph 80 of Order No. 717-A.

Specifically, the Commission stated the following:

The Commission clarifies that the language in paragraph 80 of Order No. 717-A

was overly broad. The Commission further clarifies that we intended to state in

paragraph 80 of Order No. 717-A that an employee making business decisions

about non-price terms and conditions can be considered a “marketing function

employee” because that employee is actively and personally engaged in marketing

functions. However, an employee who simply drafts or redrafts a contract,

23 Order No. 717-A at P 80.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 14

including non-price terms and conditions, without making business decisions is

not a “marketing function employee.”

24

Requests for Rehearing and Clarification

24. Several additional parties have requested clarification regarding paragraph 80 of

Order No. 717-A since the issuance of Order No. 717-B, but have raised the same issues

as those addressed in Order No. 717-B. Xcel also requests clarification that enterprise

risk management employees may provide risk management services to both the

wholesale sales function and the transmission function of a vertically integrated and/or

combination utility, subject to the No Conduit Rule, and consistent with Order No. 717.

Commission Determination

25. Since the Commission has already addressed the arguments concerning paragraph

80 of Order No. 717-A in Order No. 717-B, we find that the requests for clarification

regarding paragraph 80 of Order No. 717-A have been rendered moot. Similarly, we also

find that the Commission’s determinations in Order No. 717-B render Xcel’s request for

clarification moot. Xcel’s concern regarding the application of the Standards of Conduct

to its risk management employees stems from its interpretation of paragraph 80 of Order

No. 717-A. However, in Order No. 717-B, the Commission clarified that it did not

intend to depart from the conclusions in paragraph 131 of Order No. 717. In paragraph

131, which the Commission reiterated in Order No. 717-B, we expressly stated that “a

24 Order No. 717-B at P 6.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 15

risk management employee may develop risk guidelines for both transmission function

employees and marketing function employees.”

25 Accordingly, the Commission finds

that these requests for rehearing concerning paragraph 80 of Order No. 717-A have been

rendered moot.

26

(4) Long-Range Planning, Procurement and Other Interactions

26. In Order No. 717-A, the Commission stated that “meetings including both

transmission function and marketing function employees are not barred under the

Standards of Conduct as long as the meetings do not relate to transmission or marketing

functions.”

27 The Commission also noted that the No Conduit Rule28 still applies to these

meetings.

Requests for Rehearing and Clarification

27. E.ON U.S. is concerned that paragraph 89 and paragraph 90 of Order No. 717-A

could act as a blanket prohibition on any meeting or communication between marketing

and transmission function employees in which non-public transmission function

information is discussed. E.ON U.S. requests clarification that the Commission did not

25 Order No. 717 at P 131.

26 We note that risk management employees remain subject to the No Conduit

Rule, and are prohibited from providing transmission function information to marketing

function employees.

27 Order No. 717-A at P 89.

28 18 CFR 358.6.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 16

eliminate certain exemptions in § 358.7 or the meetings in which information shared

under these exemptions occurs. Specifically, E.ON U.S. notes the “specific transaction

information” exemption in § 358.7(b);

29 the exemption allowing discussion of

compliance information relating to Reliability Standards approved by the Commission in

§ 358.7(h)(2)(i);

30 and the exemption allowing discussion of information necessary to

restore operation of the transmission system or that may affect dispatch of generating

units in § 358.7(h)(2)(ii).

31

Commission Determination

28. We grant E.ON U.S.’s request for clarification and confirm that the Commission

did not intend to limit or eliminate the exemptions in § 358.7. We note that employees

remain subject to the No Conduit Rule, and are prohibited from providing transmission

function information to marketing function employees.

(5) Seller’s Own Production or Gathering or Processing Facilities

29. In Order No. 717-A, the Commission denied the request of APGA to eliminate the

exclusion for sales of natural gas solely from a seller’s own production and from a

seller’s own gathering or processing facilities from the definition of “marketing

29 18 CFR 358.7(b).

30 18 CFR 358.7(h)(2)(i).

31 18 CFR 358.7(h)(2)(ii).

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 17

function.”

32 The Commission also noted that section 4 of the Natural Gas Act prohibits a

pipeline from granting any undue preference or advantage to any person or subjecting

any person to any undue prejudice or disadvantage.

33

Request for Clarification or Rehearing

30. APGA requests that the Commission clarify that, notwithstanding any exemption

from the Standards of Conduct, a natural gas transmission provider’s disclosure of nonpublic transmission function information to its gas sales employees or those affiliated

producers, gatherers and processors constitutes the granting of an “undue preference or

advantage” under section 4 of the Natural Gas Act. APGA argues that “the Commission

is obligated under the Act ‘to prevent discrimination against shippers who must depend

on monopolistic pipelines for transportation,’ and the disclosure of non-public

transmission function information by pipelines to their sales employees and those of its

affiliates clearly constitutes improper favoritism.” Accordingly, APGA asks that if the

Commission declines to grant the requested clarification, then it should grant rehearing

on this issue and on rehearing amend Order No. 717-A to state that such disclosure is

unlawful.

32 Order No. 717-A at PP 55-58.

33 Id. P 58.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 18

Commission Determination

31. We deny APGA’s request for clarification or rehearing of Order No. 717-A. The

Commission previously denied APGA’s request for rehearing in Order No. 717-A and

affirmed the adoption of the exclusion in Order No. 717. Now, for the first time, APGA

asks that the Commission adopt a per se rule that, notwithstanding any exclusion, a

natural gas transmission provider’s disclosure of non-public transmission function

information to its gas sales employees or its affiliated producers, gatherers and processors

constitutes the granting of an “undue preference or advantage” under section 4 of the

Natural Gas Act. As an initial matter, we note that APGA raises this request for

rehearing for the first time in this proceeding. We have held repeatedly that it is

inappropriate for a protestor to raise new issues in a request for rehearing because this

practice is disruptive to the administrative process and denies parties the opportunity to

respond.

34

32. We also find that APGA’s request for clarification or rehearing is beyond the

scope of this proceeding. Although APGA describes its filing as a request for

clarification or rehearing of Order No. 717-A, in fact, APGA requests that the

34 Baltimore Gas and Electric Company, 91 FERC ¶ 61,270, at 61,922 (2000);

Baltimore Gas and Electric Company, 92 FERC ¶ 61,043, at 61,114 (2000); New York

Independent System Operator, Inc., 97 FERC ¶ 61,006, at 61,015 (2001); Carolina Power

& Light Company, 106 FERC ¶ 61,141, at P 15 (2004); CARE v. Calpine Energy

Services, LP, 107 FERC ¶ 61,238, at P 7 (2004); PJM Interconnection, LLC, 126 FERC

¶ 61,030, at P 15 (2009).

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 19

Commission clarify section 4 of the Natural Gas Act.

35 The appropriate forum to raise

this request for an interpretation of section 4 of the Natural Gas Act would be in either a

complaint proceeding or a petition for declaratory order. Accordingly, we deny APGA’s

request for clarification or rehearing in this proceeding concerning section 4 of the

Natural Gas Act.

33. Although we deny APGA’s request for rehearing and clarification, we note that

the exclusion must be read in the context of the whole of the Standards of Conduct. For

example, section 358.2(a) of the Commission’s regulations specifies that “A transmission

provider must treat all transmission customers, affiliated and non-affiliated, on a nondiscriminatory basis and must not make or grant any undue preference or advantage to

any person or subject any person to any undue prejudice or disadvantage with respect to

any transportation of natural gas....” , while section 358.2(d) further provides that “A

transmission provider must provide equal access to non-public transmission function

information to all its transmission customers, affiliated and non-affiliated, except in the

case of confidential customer information or Critical Energy Infrastructure Information.”

IV. Document Availability

34. In addition to publishing the full text of this document in the Federal Register, the

Commission provides all interested persons an opportunity to view and/or print the

contents of this document via the Internet through FERC's Home Page

35 15 U.S.C. § 717c (2009).

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Docket No. RM07-1-002 20

(http://www.ferc.gov) and in FERC's Public Reference Room during normal business

hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A,

Washington DC 20426.

35. From FERC's Home Page on the Internet, this information is available on

eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft

Word format for viewing, printing, and/or downloading. To access this document in

eLibrary, type the docket number excluding the last three digits of this document in the

docket number field.

36. User assistance is available for eLibrary and the FERC’s website during normal

business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676)

or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-

8371, TTY (202)502-8659. E-mail the Public Reference Room at

public.referenceroom@ferc.gov.

V. Effective Date

37. Changes to Order No. 717-A adopted in this order on rehearing and clarification

are effective [insert date 90 days from publication in FEDERAL REGISTER].

By the Commission.

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.

20100416-3053 FERC PDF (Unofficial) 04/16/2010
Document Content(s)

RM07-1-002a.DOC.......................................................1-22

20100416-3053 FERC PDF (Unofficial) 04/16/2010