
[Federal Register: November 5, 2009 (Volume 74, Number 213)]
[Rules and Regulations]               
[Page 57246-57248]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05no09-4]                         

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 375

[Docket No. RM10-2-000; Order No. 728]

 
Delegations for Notices of Penalty

October 30, 2009.
AGENCY: Federal Energy Regulatory Commission, Energy.

ACTION: Final rule.

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SUMMARY: The Commission is revising its regulations to delegate 
authority to

[[Page 57247]]

the Secretary of the Commission and to the Director of the Office of 
Enforcement to take specified actions in order to process certain 
Notices of Penalty issued by the North American Electric Reliability 
Corporation. These revisions are necessary to enable the Commission to 
process routine, non-controversial Notices of Penalty in a timely and 
efficient manner.

DATES: Effective Date: This rule will become effective November 5, 
2009.

FOR FURTHER INFORMATION CONTACT: Wilbur Miller, Federal Energy 
Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 
(202) 502-8953. Wilbur.Miller@FERC.gov.

SUPPLEMENTARY INFORMATION:
    Before Commissioners: Jon Wellinghoff, Chairman, Suedeen G. Kelly, 
Marc Spitzer, and Philip D. Moeller.
    1. The Commission is issuing this Final Rule to revise its 
delegations of authority to allow for the efficient and timely 
processing of Notices of Penalty (Notices) issued by the North American 
Electric Reliability Corporation (NERC). These revisions will permit 
the Director of the Office of Enforcement and the Secretary of the 
Commission to process routine, non-controversial Notices that propose 
zero dollar penalties and do not require further consideration by the 
Commission and to issue public notices stating as much. The Director of 
the Office of Enforcement will also be able to direct the submission of 
further information from NERC or other entities where necessary as to 
Notices without the need for action by the Commission.

I. Background

    2. Under section 215(e) of the Federal Power Act (FPA), NERC as the 
Electric Reliability Organization (ERO) must file each Notice with the 
Commission.\1\ The penalty is subject to Commission review upon its own 
motion or upon application by the entity subject to the proposed 
penalty within 30 days. If no review is sought or initiated, the 
penalty takes effect by operation of law.
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    \1\ 16 U.S.C. 824o(e) (2006).
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    3. Currently, when the Commission receives a Notice, it is analyzed 
within the thirty day period by staff from the Office of Enforcement, 
the Office of Electric Reliability, and the Office of General Counsel. 
Those offices recommend to the Commission whether it should allow the 
Notice to become effective by operation of law. The Commission conducts 
a vote and, if it decides that no further action is warranted, 
instructs the Secretary to issue a public notice to that effect. Based 
upon the Commission's experience thus far, it appears likely that, in 
most cases, Notices in which a registered entity is assessed a zero 
monetary penalty will become effective in this manner.
    4. On occasion, staff will conclude that further information is 
needed for the proper consideration of a Notice. In such cases, 
Commission staff will recommend that the Commission direct NERC to 
provide further information and extend the thirty-day period to allow 
the Commission to analyze the information received.\2\
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    \2\ See North American Electric Reliability Corp., 127 FERC ] 
61,198 (2009).
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II. Discussion

    5. The Commission concludes that, in many cases involving the 
assessment of zero dollar penalties, Notices can be processed without 
the need for a formal Commission vote. In proceedings involving non-
controversial zero dollar penalties, a Notice can be processed more 
efficiently by allowing the Secretary to issue a notice indicating that 
the Commission will take no further action. Further, the Commission 
believes that the Director of the Office of Enforcement should be able 
to direct the submission of further information from NERC or other 
entities regarding Notices and extend the time for consideration of a 
Notice to consider this information. Consequently, this Final Rule 
delegates the necessary authority to the Director of the Office of 
Enforcement and to the Secretary to undertake such actions in 
connection with Notices that assess a zero dollar penalty and do not 
raise other significant concerns or issues.
    6. The Commission notes that our current regulations permit the 
Director of the Office of Electric Reliability to collect information 
from NERC or from Regional Entities, but the Director of the Office of 
Enforcement lacks similar authority. The Commission believes that the 
Director of the Office of Enforcement should have the similar authority 
to direct NERC or the applicable Regional Entity to submit further 
information on a Notice where the Commission does not have sufficient 
information to reach a decision on the Notice. To facilitate the 
gathering of this information, the Director of the Office of 
Enforcement should also have the authority to extend the time for 
consideration of a Notice to consider the new information. This Final 
Rule adds both authorities to the Office of Enforcement's delegations.
    7. Under FPA section 215, a Notice takes effect by operation of law 
if no review is sought or initiated. This does not require affirmative 
Commission action, and the Commission's regulations do not provide for 
any formal procedure by which the Commission must decide to take no 
action. The Commission has generally issued a notice indicating that it 
will not further review on its own motion the Notice. However, unlike 
other administrative notices, the Secretary lacks the authority to 
issue a public notice that no further review will take place, absent 
action by the Commission. This Final Rule therefore adds such authority 
to the Secretary's delegations.
    8. Although the delegations do not specify in what circumstances a 
Notice should be allowed to become effective without an affirmative 
vote by the Commission, it will be Commission policy that Notices will 
not need a formal Commission vote only in zero dollar penalty cases 
that do not raise significant concerns or other issues. The following 
circumstances will necessitate a formal Commission vote to issue a 
notice that the Commission will not further review the Notice:
    [cir] A penalty assessment or settlement involving a dollar amount 
greater than zero;
    [cir] A penalty that appears low based on the facts presented;
    [cir] Conduct or an event that may pose a high risk to the Bulk-
Power System;
    [cir] An event that resulted in loss of load to customers;
    [cir] A special or unique legal question, such as Commission 
jurisdiction;
    [cir] A Notice that results from a live hearing process at the 
Regional Entity or ERO level, i.e., a contest by the registered entity;
    [cir] A Notice resulting from NERC's enforcement efforts (as 
opposed to violations addressed in the first instance by one of the 
eight Regional Entities);
    [cir] A Notice that involves intent to violate a Reliability 
Standard or falsification of records;
    [cir] A Notice with a record that fails to justify the finding of a 
violation or the proposed penalty amount; and
    [cir] Any other matter worthy of Commission attention.

III. Information Collection Statement

    9. The Office of Management and Budget's (OMB) regulations require 
that OMB approve certain information collection requirements imposed by 
agency rule.\3\ This Final Rule does not contain information reporting 
requirements and is not subject to OMB approval.
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    \3\ 5 CFR Part 1320.

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[[Page 57248]]

IV. Environmental Analysis

    10. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the quality of the human 
environment.\4\ Issuance of this Final Rule does not represent a major 
Federal action having a significant adverse effect on the quality of 
the human environment under the Commission's regulations implementing 
the National Environmental Policy Act. Part 380 of the Commission's 
regulations lists exemptions to the requirement to draft an 
Environmental Analysis or Environmental Impact Statement. Included is 
an exemption for procedural, ministerial or internal administrative 
actions.\5\ This rulemaking is exempt under that provision.
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    \4\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. 
& Regs. ] 30,783 (1987).
    \5\ 18 CFR 380.4(1) and (5).
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V. Regulatory Flexibility Act

    11. The Regulatory Flexibility Act of 1980 (RFA) \6\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
This Final Rule concerns matters of internal agency procedure. The 
Commission therefore certifies that it will not have such an impact. An 
analysis under the RFA is not required.
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    \6\ 5 U.S.C. 601-612.
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VI. Document Availability

    12. 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 (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
    13. 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.
    14. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours from FERC Online Support at 202-502-
6652 (toll free at 1-866-208-3676) or e-mail 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.

VII. Effective Date and Congressional Notification

    15. These regulations are effective immediately upon publication in 
the Federal Register. In accordance with 5 U.S.C. 553(d)(3), the 
Commission finds that good cause exists to make this Final Rule 
effective immediately. It makes minor revisions to matters of internal 
operations and is unlikely to affect the rights of persons appearing 
before the Commission. There is therefore no reason to make this rule 
effective at a later time.
    16. The provisions of 5 U.S.C. 801 regarding Congressional review 
of Final Rules do not apply to this Final Rule, because this Final Rule 
concerns agency procedure and practice and will not substantially 
affect the rights of non-agency parties.
    17. The Commission is issuing this as a Final Rule without a period 
for public comment. Under 5 U.S.C. 553(b), notice and comment 
procedures are unnecessary where a rulemaking concerns only agency 
procedure and practice, or where the agency finds that notice and 
comment is unnecessary. This rule concerns only matters of internal 
agency procedure and will not significantly affect regulated entities 
or the general public.

List of Subjects in 18 CFR Part 375

    Authority delegations (Government agencies), Seals and insignia, 
Sunshine Act.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

0
In consideration of the foregoing, the Commission amends Part 375, 
Chapter I, Title 18, Code of Federal Regulations, as follows.

PART 375--THE COMMISSION

0
1. The authority citation for Part 375 continues to read as follows:

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352, 16451-16463.


0
2. Section 375.302 is amended by adding paragraph (aa) as follows:


Sec.  375.302  Delegations to the Secretary.

* * * * *
    (aa) Issue a notice that the Commission will not further review on 
its own motion a Notice of Penalty filed under Section 215(e) of the 
Federal Power Act.


0
3. Section 375.311 is amended by adding paragraphs (u) and (v) as 
follows:


Sec.  375.311  Delegations to the Director of the Office of 
Enforcement.

* * * * *
    (u) Direct the Electric Reliability Organization or the applicable 
Regional Entity to provide such information as is necessary to 
implement Section 215(e)(2) of the Federal Power Act (16 U.S.C. 
824o(e)(2)) pursuant to Sec.  39.2 and Part 40 of this chapter.
    (v) Issue an order extending the period of time for consideration 
of a Notice of Penalty filed under Section 215(e) of the Federal Power 
Act for the purpose of directing the Electric Reliability Organization 
or the applicable Regional Entity to provide such information as is 
necessary to implement Section 215(e)(2) of the Federal Power Act (16 
U.S.C. 824o(e)(2)) pursuant to Sec.  39.2 and Part 40 of this chapter.

[FR Doc. E9-26635 Filed 11-4-09; 8:45 am]

BILLING CODE 6717-01-P
