[Federal Register Volume 74, Number 64 (Monday, April 6, 2009)]
[Rules and Regulations]
[Pages 15374-15376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7577]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 38

Docket No. RM05-5-000; OA08-50-002]


Standards for Business Practices and Communication Protocols for 
Public Utilities; Duke Energy Carolinas, LLC

Issued March 30, 2009.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Order on Requests for Waiver.

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SUMMARY: The Federal Energy Regulatory Commission grants in part, and 
denies in part, requests for waiver of certain North American Electric 
Standards Board (NAESB) business practice standards incorporated into 
Part 38 of the Commission's regulations.

DATES: Effective Date: This rule will become effective April 6, 2009.

FOR FURTHER INFORMATION CONTACT: W. Mason Emnett, Office of the General 
Counsel--Energy Markets, Federal Energy Regulatory Commission, 888 
First Street, NE., Washington, DC 20426, (202) 502-6540.

SUPPLEMENTARY INFORMATION:
    Before Commissioners: Jon Wellinghoff, Chairman; Suedeen G. Kelly, 
Marc Spitzer, and Philip D. Moeller.
    1. On January 6, 2009, the Edison Electric Institute (EEI) 
submitted in Docket No. RM05-5-000 a request on behalf of electric 
transmission providers that the Commission issue a blanket waiver of 
certain North American Electric Standards Board (NAESB) business 
practice standards incorporated into the Commission's regulations. EEI 
states that the NAESB business practices require the posting of 
information that is inconsistent with the Commission's posting 
requirements under Part 358 of its regulations, as amended in Order No. 
717.\1\ The Commission grants in part, and denies in part, the 
requested waiver, as discussed below.
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    \1\ Standards of Conduct for Transmission Providers, Order No. 
717, 73 FR 63796 (Oct. 27, 2008), FERC Stats. & Regs. ] 31, 280 
(2008), reh'g pending.
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    2. On January 16, 2009, Duke Energy Carolinas, LLC (Duke) renewed 
EEI's request for waiver in Docket No. OA08-50-002 as part of a 
compliance filing proposing to incorporate the latest version of 
NAESB's business practice standards into Duke's Open Access 
Transmission Tariff (OATT).\2\ Duke proposed incorporating a reference 
to the pending request for waiver into certain provisions of its OATT. 
The Commission directs Duke to submit a further compliance filing, 
described below, to reflect the Commission's decision to grant in part, 
and deny in part, the requested waiver.
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    \2\ The Commission recently accepted Duke's compliance filing, 
but deferred action on its request for waiver of NAESB's business 
practice standards. See Duke Energy Carolinas, LLC, 126 FERC ] 61, 
226 (2009).
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I. Background

    3. NAESB is a non-profit standards development organization 
established in January 2002 that serves as an industry forum for the 
development of standards that promote a seamless marketplace for 
wholesale and retail natural gas and electricity. In a series of 
orders, the Commission has incorporated certain of

[[Page 15375]]

NAESB's standards into its regulations.\3\ The NAESB standards include 
standards for business practices as well as standards and protocols for 
electronic communication on the Open Access Same-time Information 
System (OASIS).
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    \3\ Standards for Business Practices and Communication Protocols 
for Public Utilities, Order No. 676, 71 FR 26199 (May 4, 2006), FERC 
Stats. & Regs. ] 31,216 (2006), reh'g denied, Order No. 676-A, 116 
FERC ] 61,255 (2006), Order No. 676-B, 72 FR 21095 (Apr. 30, 2007), 
FERC Stats. & Regs. ] 31,246 (2007), Order No. 676-C, 73FR 43848 
(July 29, 2008, FERC Stats. & Regs. ] 31,274 (2008), Order No. 676-
D, 124 FERC ] 61,317 (2008); Standards for Business Practices for 
Interstate Natural Gas Pipelines, Order No. 698, 72 FR 38757 (July 
16, 2007), FERC Stats. & Regs. ] 31,251 (2007), order on 
clarification and reh'g, Order No. 698-A, 121 FERC ] 61,264 (2007).
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    4. Of particular relevance here, requirement WEQ-002-4.5.2 of 
NAESB's Business Practices for OASIS Standards and Communications 
Protocol (OASIS S&C Protocol), version 1.4, directs transmission 
providers to establish a Standards of Conduct link on their OASIS home 
pages that contains information that the Commission in Order No. 2004 
required transmission providers to post on their OASIS sites.\4\ 
Requirement WEQ-001-1.6(g)(4) of the Business Practices for Open Access 
Same-Time Information System (OASIS Business Practices), version 1.4, 
provides for the posting of logs, also required in Order No. 2004, 
detailing the circumstances and manner in which a transmission provider 
exercises discretion under its OATT. Requirement WEQ-002-4.3.10.5 of 
the OASIS S&C Protocol, version 1.4, establishes the template to be 
used when posting such acts of discretion.
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    \4\ Standards of Conduct for Transmission Providers, Order No. 
2004, 68 FR 69134 (Nov. 25, 2003), FERC Stats. & Regs. ] 31,155 
(2003), order on reh'g, Order No. 2004-A, 69 FR 23562 (Apr. 20, 
2004), FERC Stats. & Regs. ] 31,161 (2004), order on reh'g, Order 
No. 2004-B, 69 FR 48371 (Aug. 10, 2004), FERC Stats. & Regs. ] 
31,166 (2004), order on reh'g, Order No. 2004-C, 70 FR 284 (Jan. 4, 
2005), FERC Stats. & Regs. ] 31,172 (2004), order on reh'g, Order 
No. 2004-D, 110 FERC ] 61,320 (2005), vacated and remanded as it 
applies to natural gas pipelines sub nom. Nat'l Fuel Gas Supply 
Corporation v. FERC, 468 F.3d 831 (D.C. Cir. 2006).
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    5. In Order No. 676-C, the Commission incorporated by reference 
into Part 38 of its regulations version 1.4 of the OASIS S&C Protocol, 
including WEQ-002.4.5.2 and WEQ-002-4.3.10.5.\5\ However, the 
Commission declined to incorporate into its regulations the entirety of 
version 1.4 of the OASIS Business Practices.\6\ Among other things, the 
Commission declined to incorporate WEQ-001-1.6, having explained in the 
Notice of Proposed Rulemaking initiating the proceeding that this 
business practice merely duplicates language already set forth in the 
Commission's regulations and, therefore, is not appropriate for 
incorporation.\7\
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    \5\ Order No. 676-C, FERC Stats. & Regs. ] 31,274 at P 9; see 18 
CFR 38.2 (2008).
    \6\ Id. P 7, n.10; see 18 CFR38.2(a)(1).
    \7\ Standards for Business Practices and Communication Protocols 
for Public Utilities, Notice of Proposed Rulemaking, 70 FR 28222 
(May 17, 2005), FERC Stats. & Regs. ] 32,582, at P 33-34 (2005).
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    6. On September 2, 2008, NAESB reported to the Commission that its 
Wholesale Electric Quadrant (WEQ) Executive Committee had approved new 
versions of its standards, including the OASIS Business Practices and 
the OASIS S&C Protocol. In the new versions of these standards, the 
directive to establish a Standards of Conduct link on the OASIS is 
moved from requirement WEQ-002-4.5.2 to requirement WEQ-001-1-13.1.2. 
The language of the new requirement WEQ-001-1-13.1.2 is substantially 
identical to the prior version of WEQ-002-4.5.2, which has been amended 
to cross-reference the replacement language of WEQ-001-1-13.1.2. The 
requirements of WEQ-001-1.6(g)(4) and WEQ-002-4.3.10.5 are unchanged. 
The revised versions of the OASIS Business Practices and OASIS S&C 
Protocol are the subject of a Notice of Proposed Rulemaking issued 
recently in Docket No. RM05-5-013.\8\ Until such time as the Commission 
acts in that proceeding, version 1.4 of those standards remains in 
effect.
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    \8\ Standards for Business Practices and Communications 
Protocols for Public Utilities, Notice of Proposed Rulemaking, FERC 
Stats. & Regs. ] 32,640 (2009).
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    7. On October 16, 2008, the Commission issued Order No. 717, 
reforming the Standards of Conduct applicable to transmission providers 
and adopting corresponding revisions to Part 358 of the Commission's 
regulations. Among other things, the Commission eliminated various 
posting requirements previously imposed under Order No. 2004, including 
the requirement to post certain information identified in version 1.4 
of requirements WEQ-001-1.6(g)(4), WEQ-002.4.3.10.5, and WEQ-002-4.5.2.

II. Requests for Waiver

A. Docket No. RM05-5-000

    8. On behalf of all electric transmission providers, EEI requests 
in Docket No. RM05-5-000 that the Commission waive the requirements of 
WEQ-001-1.6(g)(4), version 1.4, and WEQ-002-4.5.2 and WEQ-002.4.3.10.5, 
version 1.4. EEI contends that these business practice standards are no 
longer consistent with the posting requirements under the Standards of 
Conduct as reformed in Order No. 717. Specifically, EEI states that 
WEQ-002-4.5.2, version 1.4, provides that transmission providers should 
post information on their OASIS sites regarding emergency circumstances 
deviations, marketing and energy affiliates, shared facilities, 
organizational charts and job descriptions, common employees, potential 
merger partners, transfers, information disclosures, voluntary consent 
to share non-affiliated customer information, discretionary actions 
under the OATT, discounts, chief compliance officers, and written 
implementation procedures. Although EEI acknowledges that the use of 
``should'' in the business practice standard is arguably not mandatory, 
EEI states that WEQ-001-1.6(g)(4), version 1.4, requires the posting of 
discretionary actions under the OATT and that WEQ-002-4.3.10.5, version 
1.4, dictates the exact template the transmission provider must use 
when posting a log of acts of discretion.
    9. EEI states that, in Order No. 717, the Commission made 
significant changes to the Standards of Conduct. EEI notes that the 
Commission, among other things, eliminated the requirement to post an 
organizational chart, eliminated the requirement to post emergency 
circumstances deviations, altered the requirement to post information 
regarding affiliates, eliminated the requirement to post common 
employees, and eliminated the discount posting requirement. As a 
result, EEI states that the NAESB business practices standards impose 
or suggest requirements that are no longer reflected in the 
Commission's Standards of Conduct. EEI states that one or more of its 
members will be seeking to change the relevant NAESB standards to 
reflect Order No. 717, but in the interim EEI requests that the 
Commission issue a blanket waiver to confirm that transmission 
providers are not obligated to abide by NAESB standards that impose or 
suggest posting requirements under the Standards of Conduct that have 
been eliminated by Order No. 717.

B. OA08-50-002

    10. Duke renews EEI's request for waiver as part of a compliance 
filing in Docket No. OA08-50-002 proposing to incorporate the latest 
version of NAESB's business practice standards. Duke states that it 
supports EEI's request for waiver and, to that end, Duke proposes to 
exclude WEQ 001-1.6(g)(4), WEQ-002-4.5.2, and WEQ-002-4.3.10.5 from the 
incorporation of the NAESB OASIS Business Practices and OASIS S&C 
Protocol into its OATT. The

[[Page 15376]]

Commission recently accepted Duke's filing as it related to other 
compliance obligations, but deferred action on the request for waiver 
of the NAESB business practice standards.

III. Commission Determination

    11. The Commission grants in part, and denies in part, the 
requested waiver. EEI and Duke request waiver of three NAESB business 
practice standards: WEQ-001-1.6(g)(4) of the OASIS Business Practices, 
version 1.4; and, WEQ-002-4.5.2 and WEQ-002.4.3.10.5 of the OASIS S&C 
Protocol, version 1.4. The Commission grants waiver of the posting 
requirements of WEQ-002-4.5.2, version 1.4, to the extent they extend 
beyond the requirements of Part 358 of the Commission's regulations, as 
amended by Order No. 717. The Commission denies as unnecessary the 
request for waiver of WEQ-001-1.6(g)(4) and WEQ-002.4.3.10.5, version 
1.4.
    12. As noted by EEI, certain of the posting requirements of WEQ-
002-4.5.2 are no longer consistent with the posting requirements of 
part 358 of the Commission's regulations, as amended by Order No. 717. 
For example, WEQ-002-4.5.2 requires transmission providers to post 
information regarding emergencies that result in a deviation from the 
Standards of Conduct, referring to corresponding requirements in the 
Commission's regulations adopted in Order No. 2004. In Order No. 717, 
the Commission eliminated the requirement to post information regarding 
emergency deviations, revising its regulations accordingly.\9\ The 
version of WEQ-002-4.5.2 currently incorporated into Part 38 of the 
Commission's regulations therefore does not reflect changes adopted in 
Part 358 of the Commission's regulations. To conform the requirements 
incorporated into Part 38 with the requirements of Part 358, the 
Commission grants waiver for all electric transmission providers of 
those requirements of section 38.2(b)(2) of the Commission's 
regulations relating to the posting of information under WEQ-002-4.5.2, 
version 1.4, that extend beyond the posting requirements of Part 358 of 
the Commission's regulations, as amended by Order No. 717.\10\
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    \9\ See 18 CFR 358.7(h) (as revised by Order No. 717 at P 214).
    \10\ The Commission's determination here is consistent with its 
proposal in the Notice of Proposed Rulemaking addressing recent 
revisions to the NAESB business practice standards to not require 
public utilities to comply with the requirements of WEQ-001-13.1.2, 
version 1.5, that are inconsistent with Order No. 717. See Standards 
for Business Practices and Communications Protocols for Public 
Utilities, FERC Stats. & Regs. ] 32,640, at P 16 (2009).
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    13. EEI and Duke also seek waiver of versions 1.4 of WEQ-001-
1.6(g)(4) and WEQ-002.4.3.10.5. As noted above, the Commission has not 
incorporated WEQ-001-1.6 into Part 38 of its regulations and, 
therefore, there is no conflict in the Commission's regulations with 
respect to that posting requirement.\11\ With regard to WEQ-002-
4.3.10.5, although that standard has been incorporated into the 
Commission's regulations,\12\ it merely establishes the template to be 
used when posting information under WEQ-001-1.6(g)(4). That template 
can continue to be used by transmission providers wishing to make such 
postings, even if not otherwise required under the Commission's 
regulations. Waiver of WEQ-001-1.6(g)(4) and WEQ-002.4.3.10.5 is 
unnecessary and, accordingly, the Commission denies the requests for 
waiver of those business practice standards.
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    \11\ See 18 CFR 38.2(b)(1). As noted above, the Commission 
declined to incorporate into its regulations the requirements of 
WEQ-001-1.6, version 1.4, because those requirements merely 
duplicate language already set forth in the Commission's 
regulations.
    \12\ See 18 CFR 38.2(b)(2).
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    14. Consistent with the Commission's determination on the requests 
for waiver, the Commission directs Duke to submit within 30 days a 
further compliance filing in Docket No. OA08-50-002 to eliminate from 
its OATT language stating that waiver of the requirements of WEQ-001-
1.6(g)(4) and WEQ-002-4.3.10.5 has been requested.
    The Commission orders:
    (A) The Commission hereby waives for all electric transmission 
providers those requirements of 18 CFR 38.2(b)(2) relating to the 
posting of information under WEQ-002-4.5.2, version 1.4, that extend 
beyond the posting requirements of Part 358 of the Commission's 
regulations, as amended by Order No. 717.
    (B) The Commission directs Duke to submit within 30 days a further 
compliance filing in Docket No. OA08-50-002 to eliminate from its OATT 
language stating that a waiver of the requirements of WEQ-001-1.6(g)(4) 
and WEQ-002-4.3.10.5 has been requested.

    By the Commission.
Kimberly D. Bose,
Secretary.
 [FR Doc. E9-7577 Filed 4-3-09; 8:45 am]
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