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Code · REGISTER · 2007-07-25 · Unknown

Unknown. Final rule

41,622 words·~189 min read·/register/2007/07/25/07-3631

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2007-07-25.xml --- 72 142 Wednesday, July 25, 2007 Contents Agricultural Agricultural Marketing Service NOTICES Grade standards: Cantaloups, 40825 E7-14337 Mangos, 40825-40826 E7-14339 Agriculture Agriculture Department See Agricultural Marketing Service See Food and Nutrition Service See Forest Service See Rural Business-Cooperative Service Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 40884-40885 E7-14389 Civil Civil Rights Commission NOTICES Meetings;
Sunshine Act, 40833 07-3663 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration Copyright Copyright Office, Library of Congress RULES Copyright office and procedures: Copyright claims; online registration Correction, 40745-40746 E7-14372 Drug Drug Enforcement Administration RULES Records and reports of listed chemicals and certain machines: Chemical mixtures containing List 1 ephedrine and/or pseudoephedrine; exemptions eliminated, 40738-40745 E7-14295 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 40843-40844 E7-14391 E7-14392 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
Pennsylvania, 40746-40752 07-3631 07-3632 Pesticide programs: Plant-incorporated protectants; procedures and requirements— Bacillus thuringiensis Vip3Aa19 protein in cotton; tolerance requirement exemption, 40752-40754 E7-14373 Pesticides; emergency exemptions, etc.: Diflubenzuron, 40754-40759 E7-14161 Pesticides; tolerances in food, animal feeds, and raw agricultural commodities: Glufosinate-ammonium, 40763-40766 E7-14170 Penoxsulam, 40759-40763 E7-14335 PROPOSED RULES Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
Pennsylvania, 40776-40788 E7-14360 NOTICES Agency information collection activities; proposals, submissions, and approvals, 40851-40853 E7-14363 E7-14376 Committees; establishment, renewal, termination, etc.: Pesticide Program Dialogue Committee, 40853-40854 E7-14332 Meetings: National Advisory Council for Environmental Policy and Technology, 40854-40855 07-3634 Pesticide, food, and feed additive petitions: BASF Corp. et al., 40877-40879 E7-14058 Pesticide programs: Risk assessments— 4-Aminopyridine, 40858-40859 E7-14367 Acrolein, 40857-40858 E7-14329 Copper naphthenate and zinc naphthenate (naphthenate salts), 40855-40857 E7-14173 Pesticide registration, cancellation, etc.:
Benzyl benzoate, 40859-40861 E7-14290 Cyclone Concentrate/gramoxone Max, etc., 40861-40874 E7-14182 Diazinon, 40874-40876 E7-14331 Monsanto Co., 40876-40877 E7-14269 Reports and guidance documents; availability, etc.: Pesticides— Antimicrobial products; emerging pathogens and disinfection hierarchy; implementation, 40879-40880 E7-14292 Executive Executive Office of the President See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Area navigation routes, 40716-40717 E7-14326 FCC Federal Communications Commission RULES Radio services, special:
Private land mobile radio services— 3650-3700 MHz Band, 40767-40772 E7-14211 Radio stations; table of assignments: Idaho, 40767 E7-14368 PROPOSED RULES Common carrier services: Federal-State Joint Board on Universal Service— Lifeline and Link-Up Program, 40816-40818 E7-14105 Price cap local exchange carriers; interstate special access services; regulatory framework, 40814-40816 E7-14272 Digital television stations; table of assignments: Washington, 40818 E7-14378 Television broadcasting:
Multichannel video and cable television service— Bidirectional navigation devices (two-way-plug-and play); commercial availability, 40818-40824 07-3651 NOTICES Agency information collection activities; proposals, submissions, and approvals, 40880-40883 E7-14380 E7-14381 E7-14382 Federal Emergency Federal Emergency Management Agency RULES Flood insurance; communities eligible for sale: Kentucky, 40766-40767 E7-14344 PROPOSED RULES Flood elevation determinations: North Carolina, 40788-40806 07-3615 Various States, 40806-40813 07-3614 NOTICES Disaster and emergency areas:
Kansas, E7-14342 40888-40889 E7-14347 New York, 40889 E7-14345 Oklahoma, 40889 E7-14348 Texas, 40889-40890 E7-14343 Federal Energy Federal Energy Regulatory Commission RULES Electric utilities (Federal Power Act): Bulk-power system; mandatory reliability standards Rehearing denied, etc., 40717-40737 E7-14340 PROPOSED RULES Meetings: Natural Gas Act and Energy Policy Act; transparency provisions; workshop, 40776 E7-14341 NOTICES Electric rate and corporate regulation combined filings, 40848-40849 E7-14309 Hydroelectric applications, 40850-40851 E7-14304 *Applications, hearings, determinations, etc.:* Dominion Transmission, Inc., 40844-40845 E7-14300 EnergyCo Marketing & Trading, LLC, 40845-40846 E7-14305 Energy West Development, Inc., 40845 E7-14299 E7-14301 Hardy Storage Co., LLC, 40846 E7-14302 Missouri Interstate Gas, LLC, 40846-40847 E7-14308 Saltville Gas Storage Co.
L.L.C., 40847 E7-14298 Southeast Supply Header, LLC, 40847 E7-14307 Sumas Cogeneration Co., L.P., 40847-40848 E7-14306 Texas Gas Transmission, LLC, 40848 E7-14303 Federal Highway Federal Highway Administration NOTICES Environmental statements; notice of intent: Buncombe County, NC, 40921-40922 E7-14353 Graham County, NC, 40922-40923 E7-14352 FMC Federal Maritime Commission PROPOSED RULES Organization, functions, and authority delegations: Filing proof of financial responsibility, 40813-40814 E7-14396 NOTICES Agreements filed, etc., 40883 E7-14395 Ocean transportation intermediary licenses:
EZ Logistics Group, Inc., et al., 40883 E7-14399 Fish Fish and Wildlife Service PROPOSED RULES Endangered and threatened species: Critical habitat designations— Sierra Nevada bighorn sheep, 40956-41008 07-3591 NOTICES Environmental statements; availability, etc.: Incidental take permits— Maricopa and Yavapai Counties, AZ; Southwestern willow flycatcher, etc., 40892-40893 E7-14354 Food Food and Drug Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 40885-40886 E7-14403 Food Food and Nutrition Service NOTICES Food distribution programs:
Donated foods national average minimum value (July 1, 2007 to June 30, 2008), 40826-40827 E7-14377 MISSING FOR: Foreign-Trade Zones Board Foreign-Trade Zones Board NOTICES *Applications, hearings, determinations, etc.:* Georgia Perkins Shibaura Engines LLC; compact diesel engine manufacturing facilities, 40833 E7-14369 Forest Forest Service NOTICES Environmental statements; notice of intent: Coconino National Forest, AZ, 40827-40829 07-3618 Custer National Forest, Sweet Grass Park, Stillwater, and Carbon Counties, MT, 40829-40831 07-3616 Hell Canyon Ranger District, Black Hills National Forest, Custer, SD, 40831-40832 07-3621 Meetings:
Resource Advisory Committees— Sierra County, 40832-40833 07-3619 Southwest Idaho, 40832 07-3617 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration See National Institutes of Health NOTICES Federal claims; interest rates on overdue debts, 40884 07-3628 Homeland Homeland Security Department See Federal Emergency Management Agency See U.S. Customs and Border Protection Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 40890 E7-14402 Privacy Act; systems of records, 40890-40892 E7-14405 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau International International Trade Administration NOTICES Antidumping:
Laminated woven sacks from— China, 40833-40838 E7-14370 Silicon metal from— China, 40838-40839 E7-14371 Countervailing duties: Laminated woven sacks from— China, 40839-40841 E7-14375 Reports and guidance documents; availability, etc.: Antidumping methodologies in proceedings involving non-market economy countries; surrogage country selection and separate rates, 40842-40843 E7-14448 International International Trade Commission NOTICES Import investigations: Orange juice from— Brazil, 40896-40897 E7-14346 Justice Justice Department See Drug Enforcement Administration NOTICES Pollution control; consent judgments:
Dixie-Narco Inc., et al., 40897 07-3642 Equistar Chemicals; public comment period, 40897 07-3612 J.H. Berra Construction Company, Inc., et al., 40898 07-3643 Labor Labor Department See Mine Safety and Health Administration Land Land Management Bureau NOTICES Meetings: Resource Advisory Councils— Idaho Falls District, 40893-40894 E7-14384 Realty actions; sales, leases, etc.: Alaska, 40894 E7-14336 Nevada, 40894-40896 E7-14338 Library Library of Congress See Copyright Office, Library of Congress Millennium Millennium Challenge Corporation NOTICES Millenium Challenge Act:
Mozambique compact, 40926-40953 E7-14130 Mine Mine Safety and Health Administration NOTICES Grants and cooperative agreements; availability, etc.: Brookwood-Sago Mine Safety Training program, 40898-40905 E7-14365 NIH National Institutes of Health NOTICES Agency information collection activities; proposals, submissions, and approvals, 40886-40888 E7-14364 E7-14366 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management: Alaska; fisheries of Exclusive Economic Zone Northern rockfish, 40773 07-3636 Pacific Ocean perch, 40772-40773 07-3638 Pelagic shelf rockfish, 40773-40774 07-3637 PROPOSED RULES Environmental statements; notice of intent:
Channel Islands National Marine Sanctuary, 40775-40776 07-3608 Office of U.S. Trade Office of United States Trade Representative See Trade Representative, Office of United States Rural Rural Business-Cooperative Service NOTICES Grants and cooperative agreements; availability, etc.: Biomass research and development; correction, 40833 E7-14383 SEC Securities and Exchange Commission NOTICES Securities: Suspension of trading— Vision Airships, Inc., 40906 07-3655 Self-regulatory organizations; proposed rule changes:
American Stock Exchange LLC, 40907-40910 E7-14312 E7-14358 Chicago Board Options Exchange, Inc., 40910-40911 E7-14311 International Securities Exchange LLC, 40911-40915 E7-14313 E7-14314 E7-14355 NASDAQ Stock Market LLC, 40915-40918 E7-14315 E7-14356 National Association of Securities Dealers, Inc., 40918-40920 E7-14359 Philadelphia Stock Exchange, Inc., 40920-40921 E7-14357 Special Special Counsel Office RULES Freedom of Information Act; implementation, 40711-40716 E7-14234 Trade Trade Representative, Office of United States NOTICES World Trade Organization:
China's compliance with WTO committments; notice of public hearing and request for comments, 40905-40906 07-3639 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration MISSING FOR: U.S. Customs and Border Protection U.S. Customs and Border Protection RULES Administrative review: Voluntary reliquidation of deemed liquidation entries; technical correction, 40737-40738 E7-14406 Separate Parts In This Issue Part II Millennium Challenge Corporation, 40926-40953 E7-14130 Part III Interior Department, Fish and Wildlife Service, 40956-41008 07-3591 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 142 Wednesday, July 25, 2007 Rules and Regulations OFFICE OF SPECIAL COUNSEL 5 CFR Part 1820 Freedom of Information Act; Implementation AGENCY: U.S. Office of Special Counsel. ACTION: Final rule. SUMMARY: The U.S. Office of Special Counsel
(OSC)is publishing notice of the final rule revising its regulations dealing primarily with the agency's implementation of the Freedom of Information Act (FOIA). The regulation, as revised, will implement provisions of the FOIA, at 5 U.S.C. 552, as amended, update information in the current regulation, and contain new and expanded information about the agency's processing of FOIA requests and appeals. DATES: This rule is effective on August 24, 2007. FOR FURTHER INFORMATION CONTACT: Christopher Kurt, FOIA Officer, in writing at: U.S. Office of Special Counsel, Legal Counsel and Policy Division, 1730 M Street, NW., (Suite 218), Washington, DC 20036-4505; by telephone, at
(202)254-3690; or by facsimile, at
(202)653-5151. SUPPLEMENTARY INFORMATION: OSC published notice of proposed revisions to its regulations dealing primarily with the agency's implementation of the Freedom of Information Act (FOIA), with a request for comments and a description of the proposed revisions, in the Federal Register on April 12, 2007 (72 FR 18406). The regulation, as revised, will implement provisions of the FOIA as amended, update information in the current regulation, and contain new and expanded information about the agency's processing of FOIA requests and appeals. Included in the revised regulation are provisions containing updated, revised, or new information about: publicly available records and information; requirements for making FOIA requests, including updated contact information; consultations with and referrals to other agencies; responses to requests, including information about multitrack and expedited processing; requirements for appealing initial decisions on requests, including updated contact information; fees, including new and revised cost information; and business information. Finally, the regulation will address responses to demands by courts or other authorities to an OSC employee for production of official records or testimony in legal proceedings. Comments OSC received comments in response to the notice from one respondent, a non-governmental organization. After considering those comments, OSC is publishing this final rule, modified as described below, pursuant to 5 U.S.C. 1212(e). The respondent's comments addressed two aspects of OSC's proposed FOIA regulation. First, the respondent stated that the section 1820.4 (“Timing of responses to requests”) does not set a time limit within which OSC will respond to a FOIA request, and recommended that OSC revise its proposed regulation to include the statutory timeframe for deciding standard FOIA requests. OSC conceived of the proposed regulation primarily as a means by which to implement provisions of the FOIA rather than repeat them. For that reason, section 1820.1 (“General Provisions”) states that the regulation should be read together with the FOIA, and provides the address for the FOIA page on OSC's web site, for additional information about access to agency records, including the statutory timeframe for deciding requests. Nevertheless, OSC is adding the statutory timeframe to the regulation for additional clarity, although in a different section. Section 1820.4 of the regulation describes the order in which OSC processes requests. Section 1820.5 (“Responses to requests”) appears to be the more appropriate section in which to add a description of the statutory timeframe for deciding standard FOIA requests not involving unusual circumstances, and OSC has done so. Second, the respondent noted that the proposed regulation specified that FOIA requests would be accepted by mail or by fax, but recommended that OSC consider establishing a mechanism to receive FOIA requests electronically. The respondent acknowledged that the FOIA does not require that agencies receive requests by any particular means, but stated that other agencies accept FOIA requests electronically, and cited considerations favoring receipt of FOIA requests by such means. This is not a comment on the proposed regulation, but a recommended change in OSC procedures. In any case, OSC has accepted FOIA requests by fax, a form of electronic receipt, for several years, a practice formally recognized by the proposed regulation. Other mechanisms for electronic receipt may be implemented at some point in the future. If so, notice will be provided to the public on OSC's web site and by further revision of the agency's FOIA regulation. OSC is submitting a report on this final rule to Congress and the Government Accountability Office pursuant to the Congressional Review Act. Procedural Determinations Procedural determinations were published in the notice of proposed rulemaking for the Congressional Review Act, Regulatory Flexibility Act, Unfunded Mandates Reform Act, Paperwork Reduction Act, Executive Order 12866 (Regulatory Planning and Review), Executive Order 13132 (Federalism), and Executive Order 12988 (Civil Justice Reform). There have been no changes in these procedural determinations. List of Subjects in 5 CFR Part 1820 Administrative practice and procedure, Freedom of Information, Government employees. For the reasons stated in the preamble, OSC is revising 5 CFR part 1820 as follows: PART 1820—FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF RECORDS OR TESTIMONY Sec. 1820.1 General provisions. 1820.2 Requirements for making FOIA requests. 1820.3 Consultations and referrals. 1820.4 Timing of responses to requests. 1820.5 Responses to requests. 1820.6 Appeals. 1820.7 Fees. 1820.8 Business information. 1820.9 Other rights and services. 1820.10 Production of official records or testimony in legal proceedings. **Authority:** 5 U.S.C. 552 and 1212(e); Executive Order No. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235. § 1820.1 General provisions. This part contains rules and procedures followed by the Office of Special Counsel
(OSC)in processing requests for records under the Freedom of Information Act (FOIA), as amended, at 5 U.S.C. 552. These rules and procedures should be read together with the FOIA, which provides additional information about access to agency records. Further information about the FOIA and access to OSC records is available on the FOIA page of OSC's Web site ( *http://www.osc.gov/foia.htm* ). Information routinely provided to the public as part of a regular OSC activity—for example, forms, press releases issued by the public affairs officer, records published on the agency's Web site ( *http://www.osc.gov* ), or public lists maintained at OSC headquarters offices pursuant to 5 U.S.C. 1219—may be requested and provided to the public without following this part. This part also addresses responses to demands by a court or other authority to an employee for production of official records or testimony in legal proceedings. § 1820.2 Requirements for making FOIA requests.
(a)*How made and addressed.* A request for OSC records under the FOIA should be made by writing to the agency. The request should be sent by regular mail addressed to: FOIA Officer, U.S. Office of Special Counsel, 1730 M Street, N.W. (Suite 218), Washington, DC 20036-4505. Such requests may also be faxed to the FOIA Officer at the number provided on the FOIA page of OSC's web site (see § 1820.1). For the quickest handling, both the request letter and envelope or any fax cover sheet should be clearly marked “FOIA Request.” Whether sent by mail or by fax, a FOIA request will not be considered to have been received by OSC until it reaches the FOIA Officer.
(b)*Description of records sought.* Requesters must describe the records sought in enough detail for them to be located with a reasonable amount of effort. When requesting records about an OSC case file, the case file number, name, and type (for example, prohibited personnel practice, Hatch Act, USERRA or other complaint; Hatch Act advisory opinion; or whistleblower disclosure) should be provided, if known. Whenever possible, requests should describe any particular record sought, such as the date, title or name, author, recipient, and subject matter.
(c)*Agreement to pay fees.* Making a FOIA request shall be considered an agreement by the requester to pay all applicable fees chargeable under § 1820.7, up to and including the amount of $25.00, unless the requester asks for a waiver of fees. When making a request, a requester may specify a willingness to pay a greater or lesser amount. § 1820.3 Consultations and referrals. When OSC receives a FOIA request for a record in the agency's possession, it may determine that another Federal agency is better able to decide whether or not the record is exempt from disclosure under the FOIA. If so, OSC will either:
(a)Respond to the request for the record after consulting with the other agency and with any other agency that has a substantial interest in the record; or
(b)Refer the responsibility for responding to the request to the other agency deemed better able to determine whether to disclose it. Consultations and referrals will be handled according to the date that the FOIA request was initially received by the first agency. § 1820.4 Timing of responses to requests.
(a)*In general.* OSC ordinarily will respond to FOIA requests according to their order of receipt. In determining which records are responsive to a request, OSC ordinarily will include only records in its possession as of the date on which it begins its search for them. If any other date is used, OSC will inform the requester of that date.
(b)*Multitrack processing.*
(1)OSC may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request.
(2)When using multitrack processing, OSC may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the faster track(s).
(c)*Expedited processing.*
(1)Requests and appeals will be taken out of order and given expedited treatment whenever OSC has established to its satisfaction that:
(i)Failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii)With respect to a request made by a person primarily engaged in disseminating information, an urgency exists to inform the public about an actual or alleged federal government activity; or
(iii)Records requested relate to an appeal that is pending before, or that the requester faces an imminent deadline for filing with, the Merit Systems Protection Board or other administrative tribunal or a court of law, seeking personal relief pursuant to a complaint filed by the requester with OSC, or referred to OSC pursuant to title 38 of the U.S. Code.
(2)A request for expedited processing must be made in writing and sent to OSC's FOIA Officer. Such a request will not be considered to have been received until it reaches the FOIA Officer.
(3)A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category described in paragraph (c)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. The formality of certification may be waived as a matter of OSC's administrative discretion.
(4)OSC shall decide whether to grant a request for expedited processing and notify the requester of its decision within 10 calendar days of the FOIA Officer's receipt of the request. If the request for expedited processing is granted, the request for records shall be processed as soon as practicable. If a request for expedited processing is denied, any administrative appeal of that decision shall be acted on expeditiously.
(d)*Aggregated requests.* OSC may aggregate multiple requests by the same requester, or by a group of requesters acting in concert, if it reasonably believes that such requests actually constitute a single request involving unusual circumstances, as defined by the FOIA, supporting an extension of time to respond, and the requests involve clearly related matters. § 1820.5 Responses to requests.
(a)*General.* Ordinarily, OSC shall have 20 business days from when a request is received to determine whether to grant or deny the request. Once OSC makes a determination to grant a FOIA request for records, or makes an adverse determination denying a request in any respect, it will notify the requester in writing. Adverse determinations, or denials of requests, consist of: A determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that a record is not readily reproducible in the form or format sought by the requester; a determination that what has been requested is not a record subject to the FOIA; a determination on any disputed fee matter, including a denial of a request for a fee waiver; and a denial of a request for expedited treatment.
(b)*Adverse determinations.* A notification to a requester of an adverse determination on a request shall include:
(1)A brief statement of the reason(s) for the denial of the request, including any FOIA exemption applied by OSC in denying the request; and
(2)A statement that the denial may be appealed under section 1820.6(a), with a description of the requirements of that subsection. § 1820.6 Appeals.
(a)*Appeals of adverse determinations.* A requester may appeal an adverse determination denying a FOIA request in any respect to the Legal Counsel and Policy Division, U.S. Office of Special Counsel, 1730 M Street, NW., (Suite 218), Washington, DC 20036-4505. The appeal must be in writing, and sent by regular mail or by fax. The appeal must be received by the Legal Counsel and Policy Division within 45 days of the date of the letter denying the request. For the quickest possible handling, the appeal letter and envelope or any fax cover sheet should be clearly marked “FOIA Appeal.” The appeal letter may include as much or as little related information as the requester wishes, as long as it clearly identifies the OSC determination (including the assigned FOIA request number, if known) being appealed. An appeal ordinarily will not be acted on if the request becomes a matter of FOIA litigation.
(b)*Responses to appeals.* The agency decision on an appeal will be made in writing. A decision affirming an adverse determination in whole or in part shall inform the requester of the provisions for judicial review of that decision. If the adverse determination is reversed or modified on appeal, in whole or in part, the requester will be notified in a written decision and the request will be reprocessed in accordance with that appeal decision. § 1820.7 Fees.
(a)*In general.* OSC shall charge for processing requests under the FOIA in accordance with paragraph
(c)of this section, except where fees are limited under paragraph
(d)of this section or where a waiver or reduction of fees is granted under paragraph
(k)of this section. OSC may collect all applicable fees before sending copies of requested records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States.
(b)*Definitions.* For purposes of this section:
(1)“‘Commercial use’ request” means a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests, which can include furthering those interests through litigation. OSC shall determine, whenever reasonably possible, the use to which a requester will put the requested records. When it appears that the requester will put the records to a commercial use, either because of the nature of the request itself or because OSC has reasonable cause to doubt a requester's stated use, OSC shall provide the requester with a reasonable opportunity to submit further clarification.
(2)“Direct costs” means those expenses that OSC incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating equipment. Direct costs do not include overhead expenses such as the costs of space, and heating or lighting the facility in which the records are kept.
(3)“Duplication” means the process of making of a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, microform, audiovisual materials, or electronic records (for example, on digital data storage discs), among others.
(4)“Educational institution” means a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, that operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.
(5)“Non-commercial scientific institution” means an institution that is not operated on a “commercial” basis, as that term is referenced in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.
(6)“Representative of the news media” or “news media requester” means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract would be the clearest proof, but OSC may also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for a commercial use. However, a request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.
(7)“Review” means the process of examining a record located in response to a request in order to determine whether any portion of the record is exempt from disclosure. It includes processing any record for disclosure—for example, doing all that is necessary to redact it and otherwise prepare it for disclosure. Review time also includes time spent obtaining and considering any formal objection to disclosure made by a business submitter under § 1820.8(f). It does not include time spent resolving general legal or policy issues about the application of exemptions. Review costs are properly charged in connection with commercial use requests even if a record ultimately is not disclosed.
(8)“Search” means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records when undertaken, and reasonable efforts to locate and retrieve information from records maintained in electronic form or format, to the extent that such efforts would not significantly interfere with the operation of an automatic information system.
(c)*Fees.* In responding to FOIA requests, OSC shall charge the following fees unless a waiver or reduction of fees has been granted under paragraph
(k)of this section:
(1)Search.
(i)Search fees will be charged for all requests—other than requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media—subject to the limitations of paragraph
(d)of this section. OSC may charge for time spent searching even if it fails to locate responsive records, or records located after a search are determined to be exempt from disclosure.
(ii)For each quarter hour spent by clerical personnel in searching for and retrieving a requested record, the fee will be $5.50. Where a search and retrieval cannot be performed entirely by clerical personnel - for example, where the identification of records within the scope of a request requires the use of professional personnel - the fee will be $9.00 for each quarter hour of search time spent by professional personnel. Where the time of managerial personnel is required, the fee will be $17.50 for each quarter hour of time spent by those personnel.
(iii)For electronic searches of records, requesters will be charged the direct costs of conducting the search, including the costs of operator/programmer staff time apportionable to the search.
(iv)For requests requiring the retrieval of records from any Federal Records Center, additional costs may be charged in accordance with the applicable billing schedule established by the National Archives and Records Administration.
(2)Duplication. Duplication fees will be charged to all requesters, subject to the limitations of paragraph
(d)of this section. For a standard paper photocopy of a record (no more than one copy of which need be supplied), the fee will be 25 cents per page. For copies produced by computer, such as discs or printouts, OSC will charge the direct costs, including staff time, of producing the copy. For other forms of duplication, OSC will charge the direct costs of that duplication.
(3)Review. Review fees will be charged to requesters who make a commercial use request. Review fees will be charged for only initial record review - in other words, the review done when OSC analyzes whether an exemption applies to a particular record or record portion at the initial request level. No charge will be made for review at the administrative appeal level for an exemption already applied. However, records or record portions withheld under an exemption that is subsequently determined not to apply may be reviewed again to determine whether any other exemption not previously considered applies; the costs of that review are chargeable where it is made necessary by such a change of circumstances. Review fees will be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.
(d)*Limitations on charging fees.*
(1)No search fee will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media.
(2)No search fee or review fee will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(3)Except for requesters seeking records for a commercial use, OSC will provide without charge:
(i)The first 100 pages of duplication (or the cost equivalent); and
(ii)The first two hours of search (or the cost equivalent).
(4)Whenever a total fee calculated under paragraph
(c)of this section is $20.00 or less for any request, no fee will be charged.
(5)The provisions of paragraphs (d)(3) and (d)(4) of this section work together. This means that for requesters other than those seeking records for a commercial use, no fee will be charged unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $20.00.
(e)*Notice of anticipated fees in excess of $25.00.* When OSC determines or estimates that the fees to be charged under this section will amount to more than $25.00, OSC shall notify the requester of the actual or estimated amount of the fees, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, OSC will advise the requester that the estimated fee may be only a portion of the total fee. In cases in which a requester has been notified that actual or estimated fees amount to more than $25.00, the request shall not be considered received and further work will not be done on it until the requester agrees to pay the anticipated total fee. A notice under this paragraph will offer the requester an opportunity to discuss the matter with OSC in order to reformulate the request to meet the requester's needs at a lower cost.
(f)*Charges for other services.* Apart from the other provisions of this section, when OSC chooses as a matter of administrative discretion to provide a special service-such as sending records by other than ordinary mail-the direct costs of providing the service ordinarily will be charged.
(g)*Charging interest.* OSC may charge interest on any unpaid fee starting on the 31st day after the date of on which the billing was sent to the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the date of billing until payment is received by OSC. OSC will follow the provisions of the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended by the Debt Collection Act of 1996 (Public Law 104-134, 110 Stat. 1321-358), and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
(h)*Aggregating requests.* Where OSC reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests that otherwise could have been submitted as a single request, for the purpose of avoiding fees, OSC may aggregate those requests and charge accordingly. OSC may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, OSC will aggregate them only where a reasonable basis exists for determining that aggregation is warranted under all of the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.
(i)*Advance payments.*
(1)For requests other than those described in paragraphs (i)(2) and (i)(3) of this section, OSC will not require the requester to make an advance payment before work is begun or continued on a request. Payment owed for work already completed (that is, pre-payment after processing a request but before copies are sent to the requester) is not an advance payment.
(2)Where OSC determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require the requester to make an advance payment of an amount up to the amount of the entire anticipated fee before beginning to process the request, except where it receives a satisfactory assurance of full payment from a requester who has a history of prompt payment.
(3)Where a requester has previously failed to pay a properly charged FOIA fee to any agency within 30 days of the date of billing, OSC may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before OSC begins to process a new request or continues to process a pending request from that requester.
(4)In cases in which OSC requires advance payment or payment due under paragraph (i)(2) or
(3)of this section, the request shall not be considered received and further work will not be done on the request until the required payment is received.
(j)*Other statutes specifically providing for fees.* The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. Where records responsive to requests are maintained for distribution by agencies operating such statutorily based fee schedule programs, OSC will provide contact information for use by requesters in obtaining records from those sources.
(k)*Requirements for waiver or reduction of fees.*
(1)Records responsive to a request shall be furnished without charge or at a charge reduced below that established under paragraph
(c)of this section where OSC determines, based on all available information, that the requester has demonstrated that:
(i)Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and
(ii)Disclosure of the information is not primarily in the commercial interest of the requester.
(2)To determine whether the first fee waiver requirement is met, OSC will consider the following factors:
(i)The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii)The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute”' to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute”to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.
(iii)The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media satisfies this consideration.
(iv)The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. OSC shall not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public.
(3)To determine whether the second fee waiver requirement is met, OSC will consider the following factors:
(i)The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. OSC shall consider any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information about this consideration.
(ii)The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. OSC ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4)Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(5)Requests for the waiver or reduction of fees should address the factors listed in paragraphs (k)(2) and
(3)of this section, insofar as they apply to each request. OSC will exercise its discretion to consider the cost-effectiveness of its investment of administrative resources in this decision making process, however, in deciding to grant waivers or reductions of fees. § 1820.8 Business information.
(a)*In general.* Business information obtained by OSC from a submitter will be disclosed under the FOIA only under this section.
(b)*Definitions.* For purposes of this section:
(1)“Business information” means commercial or financial information obtained by OSC from a submitter that may be protected from disclosure under exemption 4 of the FOIA.
(2)“Submitter” means any person or entity from whom the OSC obtains business information, directly or indirectly. The term includes corporations, and state, local, tribal and foreign governments.
(c)*Designation of business information.* A submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under exemption 4. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.
(d)*Notice to submitters.* OSC shall provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph
(e)of this section, except as provided in paragraph
(h)of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph
(f)of this section. The notice shall either describe the business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish it.
(e)*When notice is required.* Notice shall be given to a submitter wherever:
(1)The information has been designated in good faith by the submitter as information considered protected from disclosure under exemption 4; or
(2)OSC has reason to believe that the information may be protected from disclosure under exemption 4.
(f)*Opportunity to object to disclosure.* OSC will allow a submitter a reasonable time to respond to the notice described in paragraph
(d)of this section and will specify that time period within the notice. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must specify all grounds for withholding any portion of the information under any exemption of the FOIA and, in the case of exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by the submitter that is not received by OSC until after its disclosure decision has been made shall not be considered by OSC. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.
(g)*Notice of intent to disclose.* OSC shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever OSC decides to disclose business information over the objection of a submitter, OSC shall give the submitter written notice, which shall include:
(1)A statement of the reason(s) why each of the submitter's disclosure objections was not sustained;
(2)A description of the business information to be disclosed; and
(3)A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h)*Exceptions to notice requirements.* The notice requirements of paragraphs
(d)and
(g)of this section shall not apply if:
(1)OSC determines that the information should not be disclosed;
(2)The information lawfully has been published or has been officially made available to the public;
(3)Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or
(4)The designation made by the submitter under paragraph
(c)of this section appears obviously frivolous - except that, in such a case, OSC shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(i)*Notice of FOIA lawsuit.* Whenever a requester files a lawsuit seeking to compel the disclosure of business information, OSC shall promptly notify the submitter.
(j)*Corresponding notice to requesters.* Whenever OSC provides a submitter with notice and an opportunity to object to disclosure under paragraph
(d)of this section, OSC shall also notify the requester(s). Whenever OSC notifies a submitter of its intent to disclose requested information under paragraph
(g)of this section, OSC shall also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, OSC shall notify the requester(s). § 1820.9 Other rights and services. Nothing in this part shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA. § 1820.10 Production of official records or testimony in legal proceedings. No employee or former employee of the Office of Special Counsel shall, in response to a demand of a court or other authority, produce or disclose any information or records acquired as part of the performance of his official duties or because of his official status without the prior approval of the Special Counsel or the Special Counsel's duly authorized designee. Dated: July 17, 2007. Scott J. Bloch, Special Counsel. [FR Doc. E7-14234 Filed 7-24-07; 8:45 am] BILLING CODE 7405-01-S DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2007-27270; Airspace Docket No. 07-ANM-1] RIN 2120-AA66 Establishment of Area Navigation Routes (RNAV), Western United States AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This action establishes a high altitude RNAV route in the Seattle, WA area to facilitate air traffic operations by providing a direct route to the Phoenix, AZ, area. The FAA is implementing this route to enhance safety and to provide a more efficient use of navigable airspace. DATES: *Effective Date:* 0901 UTC, October 25, 2007. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments. FOR FURTHER INFORMATION CONTACT: Ken McElroy, Airspace and Rules Group, Office of System Operations Airspace and AIM, Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591; telephone:
(202)267-8783. SUPPLEMENTARY INFORMATION: History On May 7, 2007, the FAA published in the **Federal Register** a notice of proposed rulemaking to establish a direct route from the Seattle Area to the Phoenix, AZ, area (72 FR 25712). Interested parties were invited to participate in this rulemaking effort by submitting written comments on this proposal to the FAA. No comments were received. High altitude area navigation routes are published in paragraph 2006 of FAA Order 7400.9P dated September 1, 2006 and effective September 15, 2006, which is incorporated by reference in 14 CFR 71.1. The area navigation routes listed in this document will be published subsequently in the Order. The Rule This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 to establish an RNAV route within the airspace assigned to the Seattle, Los Angeles, Albuquerque, Salt Lake City and Denver Air Route Traffic Control Center (ARTCC). This route provides a direct route from the Seattle, WA area to Phoenix, AZ, and facilitates a more flexible and efficient use of navigable airspace for en route instrument flight rules operations. The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under Department of Transportation
(DOT)Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and
(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Environmental Review The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures”, paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9P, Airspace Designations and Reporting Points, dated September 1, 2006, and effective September 15, 2006, is amended as follows: Paragraph 2006 Area Navigation Routes. **Q-35 IMB to DRK [new]** IMB VORTAC (Lat. 44°38′54″ N., long. 119°42′42″ W.) NEERO WP (Lat. 41°49′03″ N., long. 118°01′29″ W.) WINEN WP (Lat. 37°56′00″ N., long. 113°30′00″ W.) CORKR Fix (Lat. 36°05′02″ N., long. 112°24′01″ W.) DRK VORTAC (Lat. 34°42′09″ N., long. 112°28′49″ W.) Issued in Washington, DC, on July 18, 2007. Edith V. Parish, Manager, Airspace and Rules Group. [FR Doc. E7-14326 Filed 7-24-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM06-16-001; Order No. 693-A] Mandatory Reliability Standards for the Bulk-Power System Issued July 19, 2007. AGENCY: Federal Energy Regulatory Commission, DOE. ACTION: Final rule; order on rehearing. SUMMARY: The Commission denies rehearing and otherwise reaffirms its determinations in Order No. 693. 72 FR 16,416 (April 4, 2007). We further clarify certain portions of the Preamble to that order. Order No. 693 approved 83 of 107 proposed Reliability Standards, six of the eight proposed regional differences, and the Glossary of Terms Used in Reliability Standards developed by the North American Electric Reliability Corporation, which the Commission has certified as the Electric Reliability Organization
(ERO)responsible for developing and enforcing mandatory Reliability Standards. Order No. 693 also required the ERO to submit significant improvements to 56 of the 83 Reliability Standards that are being approved as mandatory and enforceable. Finally, Order No. 693 provided that the remaining 24 Reliability Standards will remain pending at the Commission until further information is provided. Order No. 693 adds a new part to the Commission's regulations, which states that this part applies to all users, owners and operators of the Bulk-Power System within the United States (other than Alaska or Hawaii) and requires that each Reliability Standard identify the subset of users, owners and operators to which that particular Reliability Standard applies. The new regulations also require that each Reliability Standard that is approved by the Commission will be maintained on the ERO's Internet website for public inspection. DATES: *Effective Date:* The final rule became effective on June 18, 2007. FOR FURTHER INFORMATION CONTACT: Jonathan First (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-8529. Christy Walsh (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6523. Robert Snow (Technical Information), Office of Energy Markets and Reliability, Division of Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202)502-6716. SUPPLEMENTARY INFORMATION: Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff. Order on Rehearing Paragraph I. Introduction 1 A. Summary of Order No. 693 3 B. Procedural Matters 4 II. Discussion 7 A. Applicability Issues 7 1. Bulk-Power System v. Bulk Electric System 7 2. NERC Registry 20 3. Use of the NERC Functional Model 48 B. Mandatory Reliability Standards 57 1. Prioritizing Modifications to Reliability Standards 57 2. Trial Period 61 C. Common Issues Pertaining to Reliability Standards 65 1. Blackout Report Recommendation on Liability Limitations 65 2. Fill-in-the-Blank Standards 70 D. Discussion of Individual Reliability Standards 82 1. EOP-001-0 82 2. EOP-002-2 86 3. EOP-008-0 90 4. FAC-003-1 95 5. IRO-001-1 100 6. IRO-005-1 and IRO-005-2 120 7. MOD-013-1 123 8. PRC-007-0, PRC-008-0, and PRC-009-0 132 9. TOP-008-1 153 III. Information Collection Statement 156 IV. Document Availability 157 I. Introduction 1. On March 16, 2007, the Commission issued a Final Rule (Order No. 693) 1 approving, pursuant to section 215 of the Federal Power Act (FPA), 2 83 of 107 proposed Reliability Standards, six of the eight proposed regional differences, and the Glossary of Terms Used in Reliability Standards (glossary) developed by the North American Electric Reliability Corporation (NERC), which the Commission has certified as the Electric Reliability Organization
(ERO)responsible for developing and enforcing mandatory Reliability Standards. However, the Commission stated that, although it believed it is in the public interest to make these Reliability Standards mandatory and enforceable, it also found that much work remains to be done. Specifically, it stated that many of these Reliability Standards require significant improvement to address, among other things, the recommendations of the Blackout Report. 3 Therefore, pursuant to section 215(d)(5), we required the ERO to submit significant improvements to 56 of the 83 Reliability Standards that are being approved as mandatory and enforceable. The Commission stated that the remaining 24 Reliability Standards will remain pending at the Commission until further information is provided. 1 *Mandatory Reliability Standards for the Bulk-Power System* , Order No. 693, 72 FR 16,416 (Apr. 4, 2007), FERC Stats. & Regs. ¶ 31,242 (2007). 2 16 U.S.C. 824o (2000). 3 U.S.-Canada Power System Outage Task Force, Final Report on the August 14 Blackout in the United States and Canada: Causes and Recommendations (April 2004) (Blackout Report). The Blackout Report is available on the Internet at *http://www.ferc.gov/cust-protect/moi/blackout.asp.* 2. Order No. 693 added a new part to the Commission's regulations, which states that this part applies to all users, owners and operators of the Bulk-Power System within the United States (other than Alaska or Hawaii) and requires that each Reliability Standard identify the subset of users, owners and operators to which that particular Reliability Standard applies. The new regulations also require that each Reliability Standard that is approved by the Commission will be maintained on the ERO's Internet Web site for public inspection. A. Summary of Order No. 693 3. In Order No. 693, the Commission stated that there were four possible courses of action that it would take with regard to each proposed Reliability Standard:
(1)Approve;
(2)approve as mandatory and enforceable; and direct modification pursuant to section 215(d)(5);
(3)request additional information; or
(4)remand. As mentioned above, the Commission approved 83 Reliability Standards and directed NERC to develop modifications to 56 of the approved Reliability Standards. In approving the Reliability Standards, Order No. 693 stated that, for an initial period, the Commission would rely on the NERC definition of bulk electric system, rather than the statutory Bulk-Power System, and NERC's registration process to provide as much certainty as possible regarding the applicability to and the responsibility of specific entities to comply with the Reliability Standards in the start-up phase of a mandatory Reliability Standard regime. 4 Further, while the Commission did not institute a formal “trial period,” it directed the ERO and Regional Entities to “focus their resources” on the “most serious violations” during an initial period through December 31, 2007. 5 4 Order No. 693 at P 75. 5 *Id.* at P 221-22. B. Procedural Matters 4. The following entities have filed timely requests for rehearing or for clarification of Order No. 693: American Public Power Association (APPA); Avista Corporation, Portland General Electric Company, and Puget Sound Energy, Inc. (collectively, Avista); City of Santa Clara, California (Santa Clara); Cogeneration Association of California and the Energy Producers and Users Coalition (California Cogeneration); ISO-New England, Inc. (ISO-New England); Midwest Independent Transmission System Operator, Inc. (Midwest ISO); National Association of Regulatory Utility Commissioners (NARUC); National Rural Electric Cooperative Association (NRECA); Pacific Northwest Security Coordinator (PNSC); Transmission Agency of Northern California (TANC); and Xcel Energy Services, Inc. (Xcel). 5. PNSC's rehearing request is deficient because it fails to include a Statement of Issues section separate from its arguments, as required by Rule 713 of the Commission's Rules of Practice and Procedure. 6 Rule 713(c)(2) requires that a rehearing request must include a separate section entitled “Statement of Issues” listing each issue presented to the Commission in a separately enumerated paragraph that includes representative Commission and court precedent on which the participant is relying. 7 Under Rule 713, any issue not so listed will be deemed waived. Accordingly, we will dismiss PNSC's rehearing request. 8 6 18 CFR 385.713(c)(2) (2006). *See Revision of Rules of Practice and Procedure Regarding Issue Identification* , Order No. 663, 70 FR 55,723 (September 23, 2005), *FERC Stats. and Regs* . ¶ 31,193 (2005). *See also* , Order 663-A, effective March 23, 2006, which amends Order No. 663 to limit its applicability to rehearing requests. *Revision of Rules of Practice and Procedure Regarding Issue Identification* , Order No. 663-A, 71 FR 14,640 (March 23, 2006), *FERC Stats. and Regs.* ¶ 31,211
(2006)(codified at 18 CFR 385.713(c)(2) (2006)). 7 As explained in Order No. 663, *supra* , the purpose of this requirement is to benefit all participants in a proceeding by ensuring that the filer, the Commission, and all other participants understand the issues raised by the filer, and to enable the Commission to respond to these issues. Having a clearly articulated Statement of Issues ensures that issues are properly raised before the Commission and avoids the waste of time and resources involved in litigating appeals regarding whether the courts of appeals lack jurisdiction because the issues on appeal were not clearly identified before the Commission. *See* Order No. 663 at P 3-4. 8 *See, e.g., Duke Power Co., LLC* , 116 FERC ¶ 61,171 (2006); and *South Carolina Electric & Gas Co.* , 116 FERC ¶ 61,218 (2006). 6. In any event, PNSC's arguments on rehearing are beyond the scope of this proceeding. PNSC asks the Commission to clarify that PNSC is in compliance with IRO-001 because it has written agreements delineating the responsibilities and authority of the operating personnel who staff its reliability center. Whether any one entity is in compliance with a Reliability Standard is not an issue in the rulemaking. II. Discussion A. Applicability Issues 1. Bulk-Power System v. Bulk Electric System 7. Section 215 of the FPA defines the term “Bulk-Power System” as follows:
(A)facilities and control systems necessary for operating an interconnected electric energy transmission network (or any portion thereof) and
(B)electric energy from generating facilities needed to maintain transmission system reliability. The term does not include facilities used in the local distribution of electric energy. 8. The NERC glossary, in contrast, states that Reliability Standards apply to the “bulk electric system,” which is defined by its regions in terms of a voltage threshold and configuration, as follows: As defined by the Regional Reliability Organization, the electrical generation resources, transmission lines, interconnections with neighboring systems, and associated equipment, generally operated at voltages of 100 kV or higher. Radial transmission facilities serving only load with one transmission source are generally not included in this definition. 9. In Order No. 693, the Commission stated that, for an initial period, it would rely on the NERC definition of bulk electric system and NERC's registration process to provide as much certainty as possible regarding the applicability to and the responsibility of specific entities to comply with the Reliability Standards in the start-up phase of a mandatory Reliability Standard regime. 9 However, the Commission stated that it was concerned about the need to address the potential for gaps in coverage of facilities. The Commission intends to address this matter in future proceedings. As a first step in enabling the Commission to understand the reach of the Reliability Standards, we directed the ERO to provide the Commission with an informational filing that includes a complete set of regional definitions of bulk electric system and any regional documents that identify critical facilities to which the Reliability Standards apply ( *i.e.* , facilities below a 100 kV threshold that have been identified by the regions as critical to system reliability). 9 Order No. 693 at P 75. 10. However, the Commission disagreed with commenters who suggested that there is no intentional distinction between Bulk-Power System and bulk electric system. This distinction was evidenced by the fact that “Congress did not borrow the term of art—bulk electric system—but instead chose to create a new term, Bulk-Power System, with a definition that is distinct from the term of art used by industry.” 10 Thus, the Commission “confirmed” that the Bulk-Power System reaches farther than those facilities that are included in NERC's definition of the bulk electric system, although choosing to rely on the NERC definition for determining the immediate applicability of the approved Reliability Standards. The Commission indicated that it remained concerned about potential gaps in coverage of facilities and that any change in applicability would be addressed in future Commission proceedings. 10 *Id* . at P 76. a. Requests for Rehearing 11. NRECA asks that the Commission clarify that it has not definitively decided that the term Bulk-Power System as defined in section 215 of the FPA encompasses more than NERC's definition of bulk electric system. Rather, NRECA understands that the Commission deferred on determining whether its jurisdiction expands beyond the bounds of the bulk electric system. NRECA is concerned that Order No. 693 may suggest that the Bulk-Power System is broader than the bulk electric system out of a misapprehension that NERC's definition imposes a rigorous 100 kV “cutoff” when, according to NRECA, it actually provides for more flexibility. Alternatively, if the Commission has definitively interpreted the term Bulk-Power System to encompass more than the bulk electric system, NRECA seeks rehearing. 12. In support of its request for rehearing, NRECA raises three arguments that the Commission erred in determining that the statutory definition of Bulk-Power System is broader than NERC's definition of bulk electric system. First, it contends that such a determination violates a rule of law that the parts of a statute should be construed in accordance with the statute's overall legislative purpose. 11 NRECA explains that section 215 was intended to replace the prior voluntary reliability standards with a mandatory scheme but, to the best of NRECA's knowledge, no participant in the drafting of the legislation expressed the view that Congress intended to expand NERC's scope. 12 NRECA states that, if the issue had been presented, it would have prompted a legislative record. The absence of such record confirms that an intent to expand NERC's scope was never expressed. 11 NRECA at 7-11, *citing United States* v. *Public Utilities Commission of California* , 345 U.S. 295, 315 (1953). 12 NRECA at 7-8. 13. Second, NRECA contends that an expansive definition of Bulk-Power System is contrary to the text of section 215, which narrows the Commission's reach. Specifically, NRECA contends that the statutory definition of Bulk-Power System makes clear that the term does not encompass all transmission facilities but, rather, only those facilities and control systems “necessary for operating an interconnected electric energy transmission network.” It also points to the statutory definitions of Reliability Standard and Reliable Operation that refer to protecting the system from instability, uncontrolled separation or cascading failures. NRECA infers from this that there is no reason to conclude that Congress included in the definition of Bulk-Power System any facilities other than those that could materially contribute to instability, uncontrolled separation or cascading outages. 14. Third, NRECA posits that, if Congress borrows a term of art that has an established meaning, the established meaning is to apply. 13 NRECA claims that the terms Bulk-Power System and bulk electric system have been used interchangeably for decades and cites examples from both industry documents and Commission orders. According to NRECA, Congress did not adopt NERC's exact definition of bulk electric system because it was insufficiently specific for legislation. NRECA asserts that “Congress used more and different words than NERC in order to provide clarity, but the definition of Bulk-Power System incorporated the exact same facilities as NERC and the regions had always included in their working definition of bulk electric system * * *” 14 13 *Id.* at 11-16, *citing Morissette* v. *United States* , 342 U.S. 246, 263 (1952). 14 NRECA at 16. 15. NARUC seeks clarification that the Commission will “continue relying on NERC's definition of Bulk-Power System” and NERC's registration process beyond the initial period during which mandatory Reliability Standards are in effect. 15 It states that section 215 of the FPA was enacted based on an industry consensus that it would apply to facilities and entities covered by the historical definition of Bulk-Power System. According to NARUC, the term applies to higher-voltage, network facilities that integrate regional transmission networks to ensure the reliability of interconnected system operations. NARUC states that NERC's definition of Bulk-Power System is consistent with section 215 and that a broader interpretation is inconsistent with Congressional intent because such a definition could sweep in facilities such as load centers and local transmission facilities that do not have a material impact on system reliability. 15 NARUC at 3. NARUC refers repeatedly to “NERC's definition of Bulk-Power System.” It is not clear from NARUC's pleading whether this is simply a typographical error or it seeks to make a point that NERC's definition of bulk electric system is equivalent to the statutory term Bulk-Power System. 16. NARUC also seeks clarification that, if the Commission determines that NERC's current definition requires revision, NERC should revise the definition using its American National Standards Institute (ANSI)-accredited process. Further, NARUC expresses concern that the Commission has directed the ERO to submit a complete set of regional definitions of bulk electric system and, thus, asks the Commission to clarify that it will continue to defer to the ERO's and Regional Entities' determinations concerning which facilities and entities materially affect the reliability of the interconnected transmission network and should be included in the compliance registry. b. Commission Determination 17. The Commission will grant NRECA's request for clarification, and thus dismisses its request for rehearing. We agree with NRECA that NERC's definition of bulk electric system does not impose a 100 kV cutoff and provides some flexibility in its application. 16 Although Order No. 693 stated that the Commission believes that the Bulk-Power System reaches farther than those facilities that are included in NERC's definition of the bulk electric system, the Commission has not definitively defined the extent of the facilities covered by the Bulk-Power System. As we stated in Order No. 693, the Commission intends to address concerns regarding the scope of the term Bulk-Power System in future proceedings. NRECA and others will not be legally precluded from presenting arguments in such a proceeding that the terms Bulk-Power System and bulk electric system encompass the same facilities. 16 *See Mandatory Reliability Standards for the Bulk Power System* , Notice of Proposed Rulemaking, 71 FR 64,770 (Nov. 3, 2006), FERC Stats. & Regs., ¶ 32,608 at P 63 (2006). 18. The Commission notes NRECA's assertion that the Commission's determination that the Bulk-Power System reaches farther than the bulk electric system is contrary to the text of section 215 of the FPA. Because the Commission has not definitively defined the extent of the facilities covered by the Bulk-Power System, the Commission believes that this determination is best made in the context of a Commission proceeding determining the extent of the Bulk-Power System. We make no finding on the matter at this time. The Commission defers judgment on this matter to a later proceeding so that the Commission can develop a record on which to base its final determination. 19. In response to NARUC, the Commission will continue to rely on NERC's definition of bulk electric system, with the appropriate regional differences, and NERC's registration process until the Commission determines in future proceedings the extent of the Bulk-Power System. The requirement that the ERO file a complete set of regional differences was to enable the Commission to understand the current reach of the Reliability Standards. However, we do not agree with NARUC that NERC should be allowed to define Bulk-Power System using its American National Standards Institute (ANSI)-accredited process. The statutory term Bulk-Power System defines the jurisdiction of the Commission. Although the Commission has chosen to defer, for the time being, to the ERO as to which entities must comply with Reliability Standards, the fundamental matter of determining the extent of Commission's jurisdiction cannot and will not be delegated to the ERO. 2. NERC Registry 20. Order No. 693 accepted the ERO's compliance registry process as an appropriate approach to identify the set of entities that are responsible for compliance with a particular Reliability Standard. 17 Further, Order No. 693 explained that NERC has developed a Statement of Compliance Registry Criteria that describes how NERC will identify organizations that may be candidates for registration and assign them to the compliance registry. NERC's compliance registry process identifies and registers entities based on categories of functions within the Bulk-Power System and related Commission-approved Reliability Standards. For example, NERC plans to register individual generator units of 20 MVA or greater that are directly connected to the bulk electric system, generating plants with an aggregate rating of 75 MVA or greater, any blackstart unit material to a restoration plan, or any generator “regardless of size, that is material to the reliability of the Bulk-Power System.” The Commission accepted the Statement of Compliance Registry Criteria, stating that “[w]e believe that NERC has set reasonable criteria for registration* * *”. 18 17 Order No. 693 at P 92-101. 18 *Id.* at P 95. 21. Further, Order No. 693 noted that the Commission's regulations then exempted most qualifying facilities
(QFs)from specific provisions of the FPA including section 215. 19 The Commission, however, expressed concerned whether it is appropriate to grant QFs a complete exemption from compliance with Reliability Standards that apply to other generator owners and operators, and noted that the Commission was concurrently issuing a notice of proposed rulemaking proposing to amend the Commission's regulation that exempts most QFs from section 215 of the FPA. The Commission has since issued a final rule eliminating the exemption of QFs from the requirements of section 215 of the FPA. 20 19 18 CFR 292.601(c) (2006). 20 *Applicability of Federal Power Act Section 215 to Qualifying Small Power Production and Cogeneration Facilities* , Order No. 696, FERC Statutes and Regulations ¶ 31,248 (2007). c. Requests for Rehearing 22. California Cogeneration argues that the Commission improperly relied on the ERO's compliance registry process. It contends that the Commission, rather than determining who the “users” of the Bulk-Power System are, has improperly delegated this task to the ERO and Regional Entities. California Cogeneration notes that the NERC registry criteria were submitted for information purposes only. Further, it contends that these criteria are being applied inconsistently among the Regional Entities, noting in particular that Western Electricity Coordinating Council
(WECC)has developed supplemental criteria that may result in the registration of entities not captured by the ERO criteria. 21 It also points to discrepancies in ERCOT's registration process. 21 California Cogeneration at 5, Referencing WECC Supplemental Registration Criteria and Dispute Resolution Process, available at *http://www.wecc.biz* . 23. California Cogeneration also argues that Reliability Standards that are not clear in how they are applied or are applied inconsistently are not just and reasonable. It contends that the examples of regional variation in the registration process demonstrate a lack of required clarity and consistency. 24. NRECA asks the Commission to clarify that, in expanding the applicability of certain Reliability Standards, 22 it has not departed from the compliance registry concept or sought to dictate actions by the ERO. Alternatively, the Commission should grant rehearing. According to NRECA, it appears possible, even likely, that the Commission was not specifying that additional entities register, but was merely specifying that the ERO should consider whether entities otherwise required to register (because they meet or exceed specified thresholds, or because they had been to shown to have a material impact on grid reliability) should also be subject to these particular Reliability Standards. 23 If that is the Commission's intended meaning, NRECA requests that the Commission specify the requested clarification and resolve the matter (subject to subsequent consideration by the ERO). However, if the Commission intends to impose a broader obligation, *i.e.* , to encompass additional entities in the Reliability Standards, then NRECA seeks rehearing. 22 NRECA at 20-23. Specifically, NRECA cites the Commission's requirement that
(1)COM-001-1, or some replacement Reliability Standard addressing black start capability, and COM-002-2 apply to all distribution providers,
(2)TOP-003-0 apply to all load-serving entities, even those below specified thresholds, based on the opinion of the transmission operator, balancing authority, or reliability coordinator, and
(3)VAR-001-1 apply to all load-serving entities. *See* Order No. 693 at P 487, 492, 512, 540, 1624, 1626, 1848, 1858 and 1990. 23 NRECA at 20, *citing see* , *e.g.* , Order No. 693 at P 512 (“APPA's concern that 2,000 public power systems would have to be added to the compliance registry is misplaced, since, as we explain in our Applicability discussed above, we are approving NERC's registry process, including the registry criteria”). 25. Further, NRECA argues that the Commission should not, as it recognized in Order No. 672-A, prescribe either the text or the substance of a Reliability Standard, including which entities are subject to the Reliability Standards, because that responsibility is reserved to the ERO, subject to the Commission's review. NRECA maintains that the Commission lacks the authority to dictate what a Reliability Standard requires or who it encompasses, as the Commission has recognized previously in Order No. 672-A. NRECA notes that Order No. 693 states that the Commission “agrees that a direction for modification should not be so overly prescriptive as to preclude the consideration of viable alternatives in the ERO's Reliability Standards development process * * *. Thus, in some instances, while we provide specific details regarding the Commission's expectations, we intend by doing so to provide useful guidance to assist in the Reliability Standards development process, not to impede it.” 24 24 Order No. 693 at P 185-86. 26. Beyond that, NRECA asserts that the Reliability Standards should not apply at all to entities whose scope of activities is too limited to have a material impact on grid reliability. In other words, the specific Reliability Standards should not apply to a distribution provider or a load-serving entity just because it is a distribution provider or a load-serving entity; instead, the Reliability Standards at issue, as well as the Reliability Standards generally, should not apply unless an entity has a material impact on grid reliability. According to NRECA, this concept is central to NERC's compliance registry, and the Commission has not articulated a sound basis for departing from it, notwithstanding the Commission's lack of authority to do so. 27. With respect to COM-001-1 or some replacement standard addressing black start capability, and COM-002-2, for example, NRECA asserts that some entities are functionally irrelevant for black start activities. It argues that having to coordinate black start operations with a large number of small entities, most, if not all, of which are served through interconnections with larger and bigger entities in the hierarchy of the Functional Model, would hinder, rather than facilitate, black start operations. NRECA maintains that the Commission should defer to the ERO's technical expertise. 28. NRECA raises similar concerns with respect to TOP-003-1. According to NRECA, read literally, the Commission appears to recommend delegating the determination of whether entities that fall below the threshold of NERC's definition of bulk electric system should be subject to the standard to “the opinion of the transmission operator, balancing authority, or reliability coordinator.” If so, NRECA asserts that this approach would appear to override both the compliance registry and the ERO, and the Commission would effectively delegate authority that it does not have to entities that could well face incentives to favor their own interests over those of load-serving entities that could be made subject to the Reliability Standards. The Commission cannot delegate authority it does not have in the first place, and the determination should be that of the ERO and the Regional Entity. While NRECA agrees that the ERO and the Regional Entities may and should take the views of the transmission operators, balancing authorities, and reliability coordinators into account, it argues that this is considerably different than simply abdicating the matter to them. 29. NRECA has similar concerns with the treatment of VAR-001-1 with respect to the Commission's “direct[ing] the ERO to address the reactive power requirements of load-serving entities on a comparable basis with purchasing-selling entities.” While NRECA agrees that this may be an appropriate matter for the ERO to consider, it argues that the Commission should not be dictating a particular action, nor should the Commission be overriding the compliance registry approach that it elsewhere endorses in its Final Rule. 30. Accordingly, NRECA requests the Commission to clarify that it has not overridden the compliance registry with respect to COM-001-1, COM-002-2, and TOP-003-0, nor dictated specific changes to those Reliability Standards. Alternatively, NRECA seeks rehearing. Absent the requested clarification, NRECA asserts that the Commission has sought to prescribe the substance of a Reliability Standard in excess of its statutory authority under section 215, contrary to its own recognition of the limitations on its authority in Order No. 672-A, and contrary to Order No. 693 itself. NRECA maintains that the proposed changes could undermine rather than enhance reliability for the reasons stated, and thus involve matters where the Commission should and is required to defer to the ERO's technical expertise. 31. Xcel notes that, pursuant to NERC's registry criteria, NERC will generally register individual generator units of 20 MVA or greater that are directly connected to the bulk electric system. According to Xcel, under NERC's criteria, generators that are connected to distribution facilities are generally exempt from registration as they are not connected to the Bulk-Power System. Xcel seeks rehearing of the Commission's decision to accept this aspect of the ERO's registration process, contending that generating facilities that are connected at a distribution voltage but deliver energy to the transmission system can affect transmission system reliability and, thus, should be subject to mandatory Reliability Standards. Further, Xcel contends that the exclusion of facilities connected at a distribution level creates inappropriate incentives for entities to interconnect generating facilities at the distribution level rather than the transmission level. 32. TANC requests clarification of the Commission's statement that: we believe our concerns can be addressed by having the ERO, through its compliance registry process, ensure that each user, owner and operator of the Bulk-Power System is registered for each Requirement in the Reliability Standards that relate to transmission owners to assure there are no gaps in coverage of the type discussed here.[ 25 ] 25 *Id.* at P 145. 33. According to TANC, this statement seems to require all entities subject to the Reliability Standards to register for each requirement applicable to transmission owners, which it states is inconsistent with the Commission's goal of preventing overlap and negates the transmission owner classification in the NERC Functional Model. Therefore, TANC asks the Commission to clarify that only those entities that meet the description of transmission owner provided in NERC's compliance registry and the NERC Functional Model descriptions are required to register as responsible entities for the Requirements applicable to transmission owners. 34. TANC asks that the Commission specify that, where an existing contract between two parties provides that one is the transmission owner, but the other has agreed to perform the TOP functions, the latter entity be listed in the compliance registry as the responsible entity for the TOP Reliability Standards. Further, TANC maintains that the transmission owner should not be the default entity ultimately responsible for compliance with the TOP Reliability Standards. According to TANC, only the entity accepting responsibility to perform the tasks delegated to it in the agreement should be accountable for the responsibilities assigned to it in the agreement. TANC asserts that, where entities have assigned responsibilities by contract, there is no reason to register those responsibilities to another entity. 35. California Cogeneration claims that Order No. 693 failed to adequately address the unique characteristics of QFs. It states that reliance on the registry process, which is based on the 14 functions identified in the NERC functional model, does not adequately distinguish among different types of generators, including size and location, and their impact on reliability. California Cogeneration states that the Commission, as a remedy to these infirmities, should direct NERC to immediately initiate a stakeholder process to revise the Reliability Standards to identify in greater detail the entities that are responsible for compliance and revise requirements to recognize the operational constraints of different generators. It states that this process should be completed before Reliability Standards become enforceable. Further, California Cogeneration states that the stakeholder process should also develop criteria for determining whether an entity has a “material impact” on reliability. 36. Finally, California Cogeneration states that the Commission was not responsive to issues raised by California Cogeneration in its rulemaking comments regarding individual Reliability Standards that apply to generator owners and operators and needed revisions if they are to be applied to cogenerators. It states that some of these Reliability Standards seem to require information regarding gross generation or load behind the customer's point of interconnection, contrary to an earlier Commission order. 26 While the Commission directed the ERO to consider these concerns during its three-year Work Plan to review each Reliability Standard, California Cogeneration contends this approach does not suffice because cogenerators must comply with the Reliability Standards in the interim. 26 California Cogeneration at 12, *citing California Independent System Operator, Corp.* , 96 FERC ¶ 63,015
(2001)(Initial Decision); Opinion No. 464, 104 FERC ¶ 61,196
(2003)(affirming Initial Decision). d. Commission Determination 37. The Commission denies California Cogeneration's request for rehearing concerning the definition of users of the Bulk-Power System. The Commission has not improperly delegated this definition to the ERO and Regional Entities. While NERC proposed the registry criteria, the Commission reviewed the criteria and approved them as appropriate under section 215 of the FPA. Further, the Commission has provided a method by which any entity that disagrees with NERC's determination to place it in the compliance registry may submit a challenge in writing to NERC and, if still not satisfied, may lodge an appeal with the Commission. 27 Therefore, the Commission has the ultimate ability to determine whether an entity should be on the NERC registry. 27 *See* Order No. 693 at P 101; *ERO Certification Order* at P 679. 38. With regard to the fact that certain Regional Entities have created supplemental criteria to determine which entities should be on the registry, we agree with California Cogeneration that this is not appropriate. 28 Order No. 693 accepted NERC's compliance registration process “to provide as much certainty as possible regarding the applicability and responsibility of specific entities under the approved standards.” 29 NERC's Statement of Compliance Registry does not reference supplemental compliance registries created by Regional Entities. While both the Commission and the ERO have made it clear that an entity that falls below the minimum registry criteria may be included on the compliance registry on a facility-by-facility basis, nonetheless NERC's compliance registry places the burden on the Regional Entity to reasonably demonstrate that the organization is a user, owner or operator of the Bulk-Power System. 30 This language contemplates a case-by-case registration of entities outside the NERC criteria, provided that a reasonable demonstration of the need to register the entity 31 is made by the Regional Entity. 32 28 We note that the example cited by California Cogeneration appears to assert that the NERC registry criteria incorporates a bright line test as to which entities should be registered: The application of the different sets of criteria to a 30 MW generator interconnected at 69 kv illustrates the inconsistency in treatment. Under NERC's criteria, the generator is interconnected at less than 100 kv, and it is not therefore a user of the bulk electric system. The generator would be eliminated from registration by the first step of NERC's process. WECC's Supplemental Criteria, however, state that a generator greater than 20 MW must be registered regardless of the voltage at which it is interconnected. California Cogeneration at 5. We disagree with this interpretation. NERC's compliance registry would also allow the ERO and Regional Entities to register “[a]ny generator, regardless of size, that is a blackstart unit material to and designated as part of a transmission operator entity's restoration plan, or; * * * [a]ny generator, regardless of size, that is material to the reliability of the bulk power system.” NERC Statement of Compliance Registry at 7. 29 Order No. 693 at P 33. 30 NERC Statement of Compliance Registry at 10, n.1. 31 The entity registered would also have to be a user, owner or operator of NERC's definition of bulk electric system. 32 The Commission notes that no Regional Entity has filed a supplemental registry with the Commission. The Commission makes its determination to reject regional registry criteria without prejudice to a Regional Entity creating supplemental registry criteria, provided that the Regional Entity affords due process to those entities that would be subject to them, and requests ERO and Commission approval of such criteria. 39. In response to NRECA, in directing the ERO to expand the applicability of certain Reliability Standards, the Commission did not intend to expand the applicability beyond those entities that are on the compliance registry. Rather, we indicated where the Commission believed there was a reliability concern in not applying certain Reliability Standards to a category of registered entities. For example, in COM-001-0, where the Commission directed the ERO to add distribution providers that are essential to the implementation of a black start plan to the Applicability section, this would include only those distribution providers that are on the compliance registry. 40. The Commission agrees with NRECA to the extent that we do not wish that a direction for modification be so overly prescriptive as to preclude the consideration of viable alternatives in the ERO's Reliability Standards development process. However, as stated in Order No. 693, in identifying a specific matter to be addressed in a modification to a Reliability Standard, it is important that the Commission provide sufficient guidance so that the ERO has an understanding of the Commission's concerns and an appropriate, but not necessarily exclusive, outcome to address those concerns. Without such direction and guidance, the ERO might not know how to respond adequately to a Commission proposal to modify a Reliability Standard. 33 Thus, in some instances, while we provided specific details regarding the Commission's expectations, we intended by doing so to provide useful guidance to assist in the Reliability Standards development process, not to impede it. 33 Order No. 693 at P 185. 41. With respect to the specific Reliability Standards cited by NRECA, the Commission first notes that NRECA does not appear to request rehearing on the substance of the directed modifications, but argues that the Commission was too prescriptive procedurally. In many instances, the Commission provided guidance to the ERO and stated that it could develop an alternative to our direction, so long as the alternative is as effective and efficient as the Commission's proposal. However, with respect to the Reliability Standards cited by NRECA, the Commission has identified specific concerns about the gap in applicability in the Reliability Standard. For example, as to COM-001-1 and COM-002-2, the Commission was concerned about having a reliability gap during normal and emergency operations. Section 215(d)(5) of the FPA states: The Commission, upon its own motion or upon complaint, may order the Electric Reliability Organization to submit to the Commission a proposed reliability standard or a modification to a reliability standard that *addresses a specific matter* if the Commission considers such a new or modified reliability standard appropriate to carry out this section. In the instances cited by NRECA, the Commission has identified a deficiency in the applicability of the Reliability Standard. To correct this deficiency, the ERO must add the specific entity to the Applicability section of the Reliability Standard. 42. TOP-003-0 contains Requirements that can have a significant impact on both the reliability of the Bulk-Power System and on competition with regard to available transfer capability (ATC). The Commission's approval of TOP-003-0 does not override either the compliance registry or the ERO. The planning authority or transmission planner should inform its Regional Entity if it is not receiving cooperation in getting the information it requires. We note that section 39.2(d) of our regulations requires each user, owner or operator of the Bulk-Power System to provide the Commission, the ERO and the applicable Regional Entity such information as is necessary to implement section 215 of the FPA. If a problem arises in obtaining information necessary to calculate ATC, the Commission may revisit this matter in the future. For example, if entities are unable to obtain the required information under TOP-003-0, the Commission might require the ERO, through the Reliability Standards development process, to develop a provision to ensure that all jurisdictional entities that must provide information pursuant to TOP-003-0 because of a particular reliability need are added to the registry, even if only to meet the requirements of TOP-003-0. 43. The Commission denies Xcel's request for rehearing. As noted by Xcel, NERC's registry criteria state that the ERO and Regional Entities will “generally” register generators greater than 20 MVA and will “generally” exempt generators that are connected to distribution facilities. The use of the term “generally” allows the ERO and Regional Entities flexibility to register a generator meeting those descriptions if the ERO or a Regional Entity determines that the facility is needed for Bulk-Power System reliability. Further, Order No. 693 specifically provided for such an outcome. 34 Therefore, those generating facilities that Xcel is concerned about, which are connected at a distribution voltage but deliver energy to the transmission system, may be required to comply with Reliability Standards depending on a possible case-by-case determination by the ERO or a Regional Entity. Xcel does not provide any support for its claim that this general exclusion of facilities connected at a distribution level creates inappropriate incentives for entities to interconnect generating facilities at the distribution level rather than the transmission level. 34 *Id.* at P 101. “Finally, the Commission agrees that, despite the existence of a voltage or demand threshold for a particular Reliability Standard, the ERO or Regional Entity should be permitted to include an otherwise exempt facility on a facility-by-facility basis if it determines that the facility is needed for Bulk-Power System reliability.” 44. In response to TANC's concern that Order No. 693 appears to require all entities subject to the Reliability Standards to register for each requirement applicable to transmission owners, we disagree. This statement was made only to ensure that there are no gaps or unnecessary redundancies with regard to the entity or entities responsible for compliance. The Commission did not intend to imply that each user, owner and operator of the Bulk-Power System must comply with those Reliability Standards which apply to transmission owners. Rather, the Commission intended for the ERO to ensure that there is clarity in the registering of entities and that the registration process results in no gaps or unnecessary redundancies. 45. Further, the Commission clarifies that it did not intend to change existing contracts, agreements or other understandings as to who is responsible for a particular function under a Reliability Standard. 35 The Commission believes that allowing an organization to accept compliance responsibility on behalf of its members should cover TAPS' concerns regarding a situation in which two entities have a contract regarding which will perform functions under the Reliability Standards. 36 NERC has filed procedures for allowing such agreements in Docket No. RM06-16-003. The Commission will rule on the particulars of those procedures in that proceeding. 35 *See id.* at P 107. 36 *See id.* at P 107-09. 46. The Commission denies California Cogeneration's request for rehearing with respect to exemption of QFs from compliance with mandatory Reliability Standards. As stated in Order No. 696, for reliability purposes, there is no meaningful distinction between QF and non-QF generators that would warrant generic exemption of QFs from mandatory Reliability Standards. 37 Therefore, we disagree with California Cogeneration that Order No. 693 failed to adequately address the unique characteristics of QFs. 37 Order No. 696 at P 28. 47. Whether a generation facility should be subject to Reliability Standards should depend on whether electric energy from the generation facility is needed to maintain the reliability of the Bulk-Power System. The registration criteria adopted by NERC and approved by the Commission, as well as the compliance registry process adopted by NERC and approved by the Commission, are designed to ensure that only those facilities needed to maintain the reliability of the Bulk-Power System are subject to the Reliability Standards. The ultimate decision with respect to individual generation units or plants is, and must be, made on a case-by-case basis. Thus, whether a particular QF or type of QF should be exempt from Reliability Standards is an issue that is more appropriately raised in the context of NERC's establishment of registry criteria for owners and operators of generators, and in the context of NERC's compliance registry process. The reliability of the Bulk-Power System will be better protected by addressing this issue in the NERC compliance registry process, which will ensure that no generator that is needed to maintain the reliability of the Bulk-Power System will be exempt from Reliability Standards, while excusing those generators that are not needed to maintain reliability. Therefore, the Commission rejects California Cogeneration's request that it direct NERC to immediately initiate a stakeholder process to revise the Reliability Standards to identify in greater detail the entities that are responsible for compliance and revise requirements to recognize the operational constraints of QF generators. 3. Use of the NERC Functional Model 48. Order No. 693 explained that NERC has developed a “Functional Model” that defines the set of functions that must be performed to ensure the reliability of the Bulk-Power System. The Functional Model identifies 14 functions and the name of a corresponding entity responsible for fulfilling each function. While the Commission had proposed to require that NERC file future revisions to the Functional Model, Order No. 693 determined that such filing was not necessary. 38 The Commission made this determination based on the characterization offered by numerous commenters that the Functional Model is an evolving guidance document that is not intended to convey firm rights and responsibilities. Further, the Commission agreed with commenters that the applicability section of a particular Reliability Standard should be the ultimate determinant of applicability of each Reliability Standard. While some commenters asked that all revisions to the Functional Model be developed through NERC's ANSI-accredited process, the Commission left to the discretion of the ERO the appropriate means of allowing stakeholder input when revising the Functional Model. 38 Order No. 693 at P 127-29. e. Requests for Rehearing 49. TANC requests rehearing of the Commission's determination that future modifications of the Functional Model do not need to be submitted to the Commission for approval. TANC contends that the Functional Model is more than just a guidance document and, rather, is fundamental to determining the applicability of each Reliability Standard. It asserts that the ERO's compliance registry process that is used to identify users, owners and operators of the Bulk-Power System that must comply with Reliability Standards relies on the Functional Model. Thus, according to TANC, a change in the Functional Model affects the applicability and enforcement of each Reliability Standard. 50. Further, TANC contends that the Reliability Standards are not “complete,” a quality objective identified by NERC in the development of Reliability Standards, because the Reliability Standards are dependent on an external document. TANC is concerned that revising the Functional Model could result in additional entities having to comply with Reliability Standards without affording these entities adequate notice of what is expected of them. It notes that terms used in the Functional Model are also defined in the NERC glossary, which was approved by the Commission. Thus, TANC requests that the Commission require the ERO to submit revisions to the Functional Model for Commission approval, either as revisions to the Functional Model or revised terms in the NERC glossary, after development through the ERO's full Reliability Standards development process. 51. Midwest ISO contends that the Commission erred in failing to require NERC to define the distinct roles of the “planning coordinator” and “planning authority.” According to Midwest ISO, while NERC used the term planning authority when it developed the “Version 0” Reliability Standards, it was recognized that there was “[no] common understanding of who or what the Planning Authority was.” 39 Further, Midwest ISO explains that many Reliability Standards describe roles for both the planning authority and transmission planner. Midwest ISO states that, while the latest revision to the Functional Model substitutes the term “planning coordinator” for “planning authority,” this has not resolved the problem because the responsibilities of the planning coordinator “are both more limited and wide-area in nature” and may not be simply substituted for those of planning authority. Midwest ISO notes that certain Regional Entities are registering entities based on the planning authority function as previously defined, and Midwest ISO asks rhetorically whether the ERO can hold a company accountable to a set of Reliability Standards applicable to an entity that it no longer recognizes as valid. 39 Midwest ISO at 4. 52. Midwest ISO maintains that the Commission did not adequately address Midwest ISO's concerns when it stated in Order No. 693 that the ERO can address such concerns as it updates and revises the Functional Model. According to Midwest ISO, the Reliability Standards state that regions should work closely with the planning coordinators on a common understanding of roles and responsibilities, but such a process will be lengthy and perhaps futile without Commission guidance. Further, Midwest ISO states that, while NERC will address this issue in the long term, the Commission's failure to provide interim clarification or direct NERC to specify the role of the planning coordinator is an error. f. Commission Determination 53. The Commission denies TANC's request for rehearing. The Commission disagrees with TANC that the Commission-approved Reliability Standards are incomplete. As stated in Order No. 693, the applicability section of a particular Reliability Standard should be the ultimate determinant of applicability of each Reliability Standard. 40 Further, the Commission notes that we required the ERO to update the Glossary of Terms Used in Reliability Standards through the Reliability Standards development process whenever a new or revised Reliability Standard includes a new defined term. 41 40 Order No. 693 at P 127. 41 *Id.* at P 1893. 54. The Commission disagrees with TANC that the Functional Model is used to identify users, owners and operators of the Bulk-Power System that must comply with Reliability Standards. The compliance registry criteria are used to determine which entities must be listed on the compliance registry, and therefore must comply with Reliability Standards. Changes in the Functional Model cannot require additional entities to comply with Reliability Standards. Consistent with our explanation in Order No. 693, if an entity is registered as a result of a change that emanated from a revision of the Functional Model, the entity would have an opportunity to seek review by the ERO and the Commission. Accordingly, we deny the request for rehearing and will not require NERC to file revisions to the Functional Model. 55. Further, we reject Midwest ISO's contention that the Commission erred in failing to provide guidance in directing NERC to define the distinct roles of the planning authority and planning coordinator. First, as recognized by Midwest ISO, NERC will address this issue as part of its long range plan. This is consistent with the Commission's statement in Order No. 693 that “given that the Functional Model is an evolving guidance document, the ERO can address such concerns as it updates and revises the Functional Model.” 42 Midwest ISO has provided insufficient support for its contention that addressing this matter may be lengthy and futile without Commission intervention. Moreover, consistent with Order No. 693, any ambiguity regarding roles and the responsibility of a particular entity for compliance with a particular Reliability Standard is a matter that should be addressed in the registration of a particular entity. 42 *Id.* at P 129. 56. Finally, we disagree with Midwest ISO's suggestion that it is inappropriate to register entities as planning authorities given that the applicability provisions of the Commission-approved Reliability Standards refer to the planning authority and not the planning coordinator. Consistent with our discussion above, revisions to the Functional Model do not convey rights and responsibilities but, rather, the modification to the applicability provision of a Reliability Standard or NERC glossary ultimately determines an entity's obligations. B. Mandatory Reliability Standards 1. Prioritizing Modifications to Reliability Standards 57. In Order No. 693, the Commission directed the ERO to submit a revised Work Plan to:
(1)Reflect modification directives contained in Order No. 693;
(2)include the timeline for completion of ATC-related Reliability Standards as ordered in Order No. 890; and
(3)account for the views of its stakeholders, including those raised in this proceeding. The Commission required that the ERO set specific delivery dates, explaining that “[a] Work Plan with specific target dates will provide a valuable tool and incentive to timely address the modifications directed in this Final Rule.” 43 Further, Order No. 693 stated that: 43 *Id.* at P 207. the ERO should make every effort to meet such delivery dates. However, we understand that there may be certain cases in which the ERO is not able to meet [the] Commission's deadline. In those instances, the ERO must inform the Commission of its inability to meet the specified delivery date and explain why it will not meet the deadline and when it expects to complete its work.[ 44 ] 44 *Id.* g. Requests for Rehearing 58. NRECA asks for clarification, or alternatively rehearing, that Order No. 693 does not allow the imposition and enforcement of deadlines that preclude the ERO from satisfying the due process requirements set forth in section 215 of the FPA or applying its own expertise. NRECA states that a deadline “may be reasonable or unreasonable, and its reasonableness needs to be determined within context” taking into account the complexity of the matter and other considerations. 45 NRECA contends that the imposition and enforcement of an unreasonable deadline conflicts with section 215 as well as Order No. 672. Thus, NRECA seeks clarification that the Commission's assertion of authority to establish deadlines for ERO action represents no more than the authority to “exhort” the ERO to move expeditiously, consistent with its statutory due process obligations. “However, if the Commission is purporting in the Final Rule to reserve the power to specify an unreasonable deadline, that undermines due process and ignores the ERO's technical expertise in contravention of the requirements of section 215, then NRECA seeks rehearing of the Commission's determination.” 46 45 NRECA at 17. 46 *Id.* at 18. h. Commission Determination 59. The Commission agrees that it should not impose deadlines that preclude the ERO from satisfying the due process requirements set forth in section 215 of the FPA, and has provided in several previous orders that, in complying with a deadline, NERC must also meet the requirements of the FPA and the Commission's regulations. In our *January 2007 Compliance Order* , we made it clear that a revision to NERC's expedited Reliability Standards development process must “make it clear that the Commission can order expedited standard development in a specific time frame and that NERC must adhere to that time frame *and still allow for due process.* ” 47 On rehearing, we further clarified that “any ERO process that provides ‘reasonable notice and opportunity for comment, due process, openness, and balance of interests’ as required by section 215(c)(2)(D) of the FPA, and that also can meet a Commission-imposed deadline pursuant to section 39.5(g) of the Commission's regulations, will comply with this directive.” 48 47 *North American Electric Reliability Corp.* , 118 FERC ¶ 61,030 at P 27
(2007)( *January 2007 Compliance Order* ) (emphasis added). 48 *North American Electric Reliability Corp.* , 119 FERC ¶ 61,046 at P 13 (2007). 60. Finally, in Order No. 693, the Commission stated that the ERO should make every effort to meet Commission-ordered delivery dates. However, we acknowledged that “there may be certain cases in which the ERO is not able to meet [the] Commission's deadline. In those instances, the ERO must inform the Commission of its inability to meet the specified delivery date and explain why it will not meet the deadline and when it expects to complete its work.” 49 49 Order No. 693 at P 207. 2. Trial Period 61. In Order No. 693, while the Commission did not institute a formal “trial period,” it directed the ERO and Regional Entities to “focus their resources” on the “most serious violations” during an initial period through December 31, 2007. 50 Order No. 693 stated that this use of enforcement discretion should apply to all users, owners and operators of the Bulk-Power System. The Commission explained that the goal should be to ensure that, at the outset, the ERO and Regional Entities can assess a monetary penalty in a situation where, for example, an entity's non-compliance places Bulk-Power System reliability at risk. This approach would allow the ERO, Regional Entities and other entities time to ensure that the compliance monitoring and enforcement processes work as intended and that all entities have time to implement new processes. 50 *Id.* at P 221-22. i. Requests for Rehearing 62. Xcel states that, while it supports the Commission's decision that the ERO and Regional Entities should have the enforcement discretion to calculate but not collect penalties during an initial period, it asks that the Commission provide greater clarity and guidance regarding the circumstances when penalties should be collected and when they should not. It asks that the Commission be as specific as possible in defining the circumstances under which the ERO and Regional Entities should exercise their enforcement discretion. It suggests that the Commission clarify that to assess a penalty a violation must be, at a minimum,
(i)an intentional violation of a well-understood Reliability Standard and
(ii)a violation that causes substantial harm. j. Commission Determination 63. The Commission denies Xcel's request for clarification. First, the Commission believes that Xcel's requested clarification would not always capture the most serious violations. Moreover, the Commission in Order No. 693 intentionally declined to develop a threshold that would place limits on the ERO's and Regional Entities' exercise of enforcement discretion; and we decline to do so here as well. Although we clearly allowed for “the ERO or a Regional Entity to take an enforcement action against an entity whose violation causes a significant disturbance,” we also provided that the ERO and Regional Entities can assess a monetary penalty in a situation where, for example, an entity's non-compliance places Bulk-Power System reliability at risk. 51 We did not require that there be actual harm to the Bulk-Power System for the ERO to assess a penalty during the transition period. 51 *Id.* 64. The Commission believes that it is better to allow the ERO and Regional Entities to use their expertise in determining which violations constitute the most serious. Likewise, the ERO and Regional Entities are in the best position to know how to best use their finite enforcement resources. This will require case-by-case analysis of the circumstances surrounding a situation. Therefore, we will not stipulate a single set of circumstances under which the ERO and Regional Entities should use their enforcement discretion for the initial transition period. C. Common Issues Pertaining to Reliability Standards 1. Blackout Report Recommendation on Liability Limitations 65. In Order No. 693, consistent with Order No. 890, the Commission did not adopt new liability protections. 52 The Commission stated that it did not believe any further action is needed to implement Blackout Report Recommendation No. 8 because the Task Force found that no further action is needed. 53 Further, the Blackout Report indicated that some states already have appropriate protection against liability suits. 54 Finally, the Commission stated that, in Order No. 888, as affirmed by Order No. 890, the Commission declined to adopt a uniform federal liability standard and decided that, while it was appropriate to protect the transmission provider through force majeure and indemnification provisions from damages or liability when service is provided by the transmission provider without negligence, it would leave the determination of liability in other instances to other proceedings. 55 52 *Id.* at P 237; *Preventing Undue Discrimination and Preference in Transmission Service* , Order No. 890, 72 FR 12,266 (March 15, 2007), FERC Stats. & Regs. ¶ 31,241
(2007)at P 1671-77. 53 U.S.-Canada Power System Outage Task Force, Final Report on Implementation of Task Force Recommendations at 22 (Oct. 3, 2006), available at *http://www.oe.energy.gov/news/blackout.htm* (“Action Required to Fully Implement Recommendation 8: No further action under this recommendation is needed.”). 54 *Id.* (“In the United States, some state regulators have informally expressed the view that there is appropriate protection against liability suits for parties who shed load according to approved guidelines”). 55 Order No. 888-B, 81 FERC ¶ 61,248 at 62,081 (1997), *order on reh'g* , Order No. 888-C, 82 FERC ¶ 61,046 (1998), *aff'd in relevant part sub nom.* *Transmission Access Policy Study Group* v. *FERC* , 225 F.3d 667 (D.C. Cir. 2000), *aff'd sub nom.* *New York* v. *FERC* , 535 U.S. 1 (2002). k. Requests for Rehearing 66. Avista seeks rehearing on the Commission's determination not to provide further liability limitations and questions whether it is fair, just and reasonable to deny transmission operators that are not regional transmission organizations
(RTOs)or independent system operators
(ISOs)the protections afforded to RTOs and ISOs and at the same time impose mandatory Reliability Standards with significant fines and penalties as an enforcement mechanism. 56 Avista argues that the Commission has limited the scope of liability in the *pro forma* open access transmission tariff
(OATT)to instances of gross negligence or intentional misconduct and also limited damages by excluding consequential, indirect or punitive damages for RTOs and ISOs. According to Avista, not providing these same limitations to other transmission operators is, on its face, arbitrary, and may have unintended adverse consequences to the ratepayers of any transmission operator whose operating employee's decisions initiate a large cascading outage, if available insurance is not adequate to cover the risk. Avista argues that enforcement of mandatory Reliability Standards should not depend both on risk of massive liability exposure and upon multi-million dollar civil fines and penalties. 56 Avista and PSE also requested rehearing of this issue in Docket Nos. RM05-25-001 and RM05-17-001. l. Commission Determination 67. The Commission denies rehearing. The Commission has already ruled that the liability standard the Commission has approved for RTOs and ISOs is not appropriate for other transmission providers. 57 Further, we also found without merit assertions that increased liability protections in the *pro forma* OATT should be viewed as a necessary element of the implementation of the Commission's reliability authority. 58 In the *Reliability Policy Statement* , 59 the Commission stated that it would consider, on a case-by-case basis, proposals by public utilities to amend their OATTs to include limitations on liability. The Commission further noted that, while this issue has not been resolved on a standardized basis, the Commission has entertained RTO transmission providers' specific proposals to amend their OATTs to include provisions addressing limitations on liability. 60 57 Order No. 890 at P 1675. We note that this discussion concerns civil liability only, not liability for penalties imposed by the ERO, Regional Entities or the Commission. 58 *Id.* at P 1677. 59 *Policy Statement on Matters Related to Bulk Power System Reliability* , 107 FERC ¶ 61,052
(2004)( *Reliability Policy Statement* ). 60 *Reliability Policy Statement* at P 40 (citations omitted). 68. In subsequent orders, the Commission found that the gross negligence and intentional wrongdoing indemnification and liability standard is appropriate for RTOs and ISOs. However, the Commission has declined to extend this protection to all transmission providers. In *Southwest Power Pool, Inc.* , the Commission explicitly stated “that our acceptance here of the gross negligence and intentional wrongdoing indemnity standard is limited to SPP, in its role as an RTO, and its TOs; we do not intend to extend such protection to all transmission providers.” 61 In *Southern Company Services, Inc.* , the Commission stated that: 61 112 FERC ¶ 61,100 at P 39 (2005). Having considered Southern Companies' proposed limitation on liability and indemnification provisions pursuant to our Reliability Policy Statement cited above, we find that Southern Companies have not shown that they are similarly situated to the RTOs/ISOs they cite in support. While Southern Companies claim that they ‘may not be protected by any State-regulated limitations on liability,' Southern Companies offer no evidence to support this concern. The Commission has provided such liability protection to RTOs/ISOs because they were created by and solely regulated by the Commission, and otherwise would be without limitations on liability. Southern Companies have proffered no evidence of any change in circumstances vis-à-vis their liability exposure post-Order No. 888. 62 62 113 FERC ¶ 61,239 at P 7 (2005). 69. Further, we disagree with Avista that there is a risk of massive liability exposure. It offers no new arguments that demonstrate that non-RTO and non-ISO transmission providers are unable to rely on state laws, *i.e.* , the state laws provide inadequate protection. Avista has not persuaded us to change our policy regarding liability protections applicable to non-RTO and non-ISO transmission providers. Therefore, we deny rehearing. 2. Fill-in-the-Blank Standards 70. In Order No. 693, the Commission required supplemental information for any Reliability Standard that currently requires a regional reliability organization to fill in missing criteria or procedures. 63 The Commission explained that, where important information has not yet been provided, it would not approve or remand such Reliability Standards until the ERO submits further information. Until such information is provided, compliance with the so-called fill-in-the-blank standards should continue on a voluntary basis, and the Commission considers compliance with such Reliability Standards to be a matter of good utility practice. Further, the Commission stated: 63 Order No. 693 at P 297-302. In our *Reliability Policy Statement* , we explained that compliance with NERC Reliability Standards (or more stringent regional standards) is expected as a matter of good utility practice as that term is used in the *pro forma* OATT. The Commission continues to expect compliance with such Reliability Standards as a matter of good utility practice. That being said, the Commission agrees that retaining a dual mechanism to enforce Reliability Standards both as good utility practice and under section 215 of the FPA is inappropriate; the OATT only applies to entities subject to our jurisdiction as public utilities under the FPA, while section 215 defines more broadly our jurisdiction with respect to mandatory Reliability Standards. We therefore do not intend to enforce, as an OATT violation, compliance with any Reliability Standard that has not been approved by the Commission under section 215. 64 64 *Id.* at P 302 (footnote omitted). m. Requests for Rehearing 71. While APPA believes that Order No. 693 correctly deferred consideration of the “fill-in-the-blank” standards, it requests rehearing of the Commission's approval of other Reliability Standards that incorporate the “fill-in-the-blank” standards. APPA argues that the Commission cannot, lawfully, approve Reliability Standards for immediate enforcement that incorporate those same unreviewed and unapproved regional Reliability Standards. 72. According to APPA, approving a Reliability Standard that references an unapproved fill-in-the-blank standard requires compliance with regional Reliability Standards that the Commission has not reviewed or approved. APPA asserts that the Commission cannot determine if a Reliability Standard that references a pending Reliability Standard is “just, reasonable, not unduly discriminatory or preferential, and in the public interest” for the same reasons that the Commission articulated in determining that it lacked important information needed to evaluate “fill-in-the-blank” standards. 73. APPA also argues that the approved Reliability Standards that reference a fill-in-the-blank standard do not promote uniformity and consistency as required by Order No. 672. APPA asserts that the Commission cannot determine if such Reliability Standards are justified, because the regional standard is more stringent than continent-wide Reliability Standards or is necessitated by a physical difference in the Bulk-Power System, without reviewing the regional standard in question to determine whether one of those two findings is appropriate. APPA also maintains that the Commission cannot conclude that the processes by which the regional practices involved in the referenced fill-in-the-blank standards were developed meet statutory requirements. APPA raises concerns about due process and fundamental fairness, asserting that small entities have often not been included in past regional processes, and may not have received prior notice of the standards with which they must now comply. 74. APPA also argues the Commission is incorrect that “many of these Reliability Standards either refer to the process of collecting data or reference Requirements that entities are generally aware of because they have already been following these Reliability Standards on a voluntary basis.” According to APPA, Reliability Standards may sweep in many small entities that have not been members of regional reliability organizations and have not necessarily complied with standards on a voluntary basis. 75. APPA argues that the Commission's approval of Reliability Standards that make enforceable unreviewed “fill-in-the-blank” standards could trigger registration of a large number of small entities. According to APPA, unless it can be assumed that no change in the scope or content of the fill-in-the-blank standards will result from the ongoing process NERC and the Regional Entities are undertaking to fill in the blanks, mandatory enforcement of the “before” version is likely to sweep in different entities and subject them to different standards than will the “after” version. Further, APPA asserts that, by posing the potential to sweep a large number of small entities onto the compliance registry before the applicable regional standard is approved, the Commission's decision calls into question its adherence in Order No. 693 to the Regulatory Flexibility Act requirements because, absent review of the undisclosed incorporated “fill-in-the-blank” standards, the Commission cannot estimate the number of small systems these Reliability Standards will affect. Further, APPA maintains that the Commission cannot make the requisite determination that a small entity's compliance with an unapproved “fill-in-the-blank” standard has a material impact on reliability, and the Commission cannot find such compliance necessary for Bulk-Power System reliability. 76. Finally, APPA maintains that, even though the Commission stated that the fact that a Reliability Standard references a fill-in-the-blank standard “may be considered in an enforcement action,” 65 the Commission should not have approved such Reliability Standards. According to APPA, the ability of an entity to raise this issue in an enforcement action occurs too late to avoid the harm to many small entities in being required to register and comply with what it calls unapproved regional underfrequency load shedding
(UFLS)programs that have not been developed through Commission-approved processes meeting the statutory standard, and which may well differ from the final standard that the Commission approves to fill in the blanks. Nor, according to APPA, does the ability to raise issues relating to fill-in-the-blank standards in an enforcement action avoid the potential for significant distraction of NERC and Regional Entities from more crucial reliability-related duties to instead deal with compliance by numerous small entities that have no material impact on the grid with regional standards that are in a state of flux. APPA also asserts that this statement cannot overcome the fundamental legal deficiency with approving a Reliability Standard that references a fill-in-the-blank standard—that the Commission lacks authority to approve regional reliability standards that require compliance with regional UFLS standards it has neither reviewed nor approved. 65 *Id.* at P 300. 77. Xcel contends that the statement that the Commission does not intend to enforce, as an OATT violation, compliance with any Reliability Standard that has not been approved by the Commission under section 215 is confusing. By stating that the Commission does not intend to enforce as an OATT violation compliance with a Reliability Standard that has not been approved by the Commission under section 215, Xcel is concerned that the Commission may intend to enforce as an OATT violation non-compliance with a Reliability Standard that has been approved by the Commission under section 215. Xcel seeks clarification or rehearing on this issue. n. Commission Determination 78. The Commission denies APPA's request for rehearing and provides further clarification. The Commission continues to believe that the fact that a Reliability Standard simply references a Reliability Standard that was not approved or remanded in Order No. 693 does not alone justify not approving the former Reliability Standard. Rather, such a reference may be considered in an enforcement action, if relevant, but is not a reason to delay approval of the Reliability Standard. Further, we clarify that, in an enforcement proceeding, such a reference can be considered regarding whether a particular Requirement or part of a Requirement in an otherwise approved Reliability Standard is enforceable. 66 The Commission did not err in approving Reliability Standards that reference a pending Reliability Standard because they contain the appropriate level of specificity necessary to provide notice to users, owners and operators of the Bulk-Power System as to what is required. We will discuss the issue raised by APPA in regard to the Protection and Control Systems
(PRC)group of Reliability Standards in our discussion of individual Reliability Standards below. 66 *See* discussion of PRC-007, PRC-008, and PRC-009, *infra* . 79. In approving a Reliability Standard that references a fill-in-the-blank standard, the Commission is not requiring compliance with the unapproved Reliability Standard. Therefore, it is immaterial how the regional differences discussed in the unapproved Reliability Standard were created. Rather, as addressed more fully in our discussion on the PRC group of Reliability Standards below, the Commission, ERO and Regional Entities will only enforce the data requirements and any requirement that can be independently enforced in those Reliability Standards, and will not enforce compliance with regional criteria created by a regional reliability organization pursuant to an unapproved fill-in-the-blank standard. 67 67 This is similar to our action in Order No. 693, where we approved certain Reliability Standards, but acknowledged that a particular requirement may be unenforceable. *See* Order No. 693 at P 147, 157-58. 80. APPA's contention that approving a Reliability Standard that references a fill-in-the-blank standard could trigger additional small entity registration is speculative. At this time, registration is governed by NERC's definition of bulk electric system and its compliance registry criteria. Nothing in a Reliability Standard can cause an entity to be registered if it would otherwise not be required to do so. 81. In response to Xcel, the Commission clarifies that it does not intend to enforce as a violation of good utility practice non-compliance with a Reliability Standard that has been approved by the Commission under section 215. However, where the OATT contains a specific requirement that may be related to a Reliability Standard, for example, an independent obligation under the OATT to calculate transmission capacity, the Commission does not limit its ability to take enforcement action separately against a violation of a Reliability Standard and a violation of a specific OATT provision. Such determinations will be based on the facts of a specific circumstance. D. Discussion of Individual Reliability Standards 1. EOP-001-0 82. Reliability Standard EOP-001-0 requires each transmission operator and balancing authority to develop, maintain and implement a set of plans to mitigate operating emergencies. These plans must be coordinated with other transmission operators and balancing authorities and the reliability coordinator. 83. Order No. 693 approved Reliability Standard EOP-001-0. In addition, the Commission directed the ERO to develop a modification to EOP-001-0 that, among other things, includes the reliability coordinator as an applicable entity. In pertinent part, the Commission found the reliability coordinator to be a necessary entity under EOP-001-0 and directed the ERO to modify the Reliability Standard to include the reliability coordinator as an applicable entity. 68 Recognizing the importance NERC attributes to the reliability coordinator in connection with matters covered by EOP-001-0, the Commission was persuaded that specific responsibilities for the reliability coordinator in the development and coordination of emergency plans must be included as part of this Reliability Standard. The Commission reasoned that, while balancing authorities and transmission operators are capable of developing, maintaining and implementing plans to mitigate operating emergencies for their specific areas of responsibility, unlike reliability coordinators, they do not have a wide-area view. 68 *Id.* at P 566. o. Requests for Rehearing 84. Midwest ISO disagrees with the Commission's mandate to the ERO to make EOP-001-0 applicable to the reliability coordinator. It notes that the Commission correctly did not provide guidance on the reliability coordinators' role in the emergency planning process and appears to have left this issue up to the industry experts. Midwest ISO argues that the industry had already addressed any potential role of the reliability coordinator in emergency planning by declining to make the reliability coordinator an applicable entity in EOP-001-0. p. Commission Determination 85. The Commission affirms its determination to mandate that the ERO make EOP-001-0 applicable to the reliability coordinator function because it is the highest level of authority responsible for reliable operation of the Bulk-Power System and has a wide-area view. Midwest ISO has not substantively disputed that Requirements for mitigation of emergencies will benefit from including a role for the entity with a wide-area view. The ERO may consider other equivalent alternatives and consider industry concerns in its modification of EOP-001-0. 2. EOP-002-2 86. EOP-002-2 applies to balancing authorities and reliability coordinators and is intended to ensure that they are prepared for capacity and energy emergencies. This Reliability Standard requires that balancing authorities have the authority to bring all necessary generation on line, communicate about energy and capacity emergencies with the reliability coordinator and coordinate with other balancing authorities. EOP-002-2 includes an attachment that describes an emergency procedure to be initiated by a reliability coordinator that declares one of four energy emergency alert levels to provide assistance to the load-serving entity. 87. Order No. 693 approved Reliability Standard EOP-002-2. In addition, the Commission directed the ERO to develop a modification to EOP-002-2 that, among other things, would modify the Reliability Standard to ensure that the Transmission Loading Relief
(TLR)procedure is not used to mitigate actual Interconnection Reliability Operating Limit
(IROL)violations. The Commission found that the TLR procedure may be appropriate and effective for use in managing potential IROL violations, but that the TLR procedure is an inappropriate and ineffective tool for mitigating actual IROL violations or for use in emergency situations as called for in EOP-002-2. Accordingly, the Commission directed the ERO to modify the Reliability Standard to ensure that the TLR procedure is not used to mitigate actual IROL violations. 69 69 Order No. 693 at P 583. q. Requests for Rehearing 88. Midwest ISO requests that the Commission clarify which of the following conditions constitutes a “potential IROL” violation for purposes of EOP-002-2:
(1)The operating limit has been exceeded, but 30 minutes has not elapsed and the operator may yet return the system to normal; or
(2)the operating limit has not been exceeded, but appears that it may be if action is not taken quickly. Midwest ISO believes that the second circumstance is the one the Commission identified as being appropriate for TLR mitigation, but reasons that the terminology can be interpreted differently by different operators applying historically different operating practices. r. Commission Determination 89. The Commission clarifies that a potential IROL violation refers to the second circumstance provided by Midwest ISO, in which “the operating limit has not been exceeded, but appears that it may be if action is not taken quickly.” In such a situation, use of TLR procedures may be appropriate depending on the circumstances. Moreover, actions undertaken under the TLR procedure are not fast and predictable enough for use in situations in which an operating security limit is being violated. 3. EOP-008-0 90. EOP-008-0 addresses plans for loss of control center functionality. It requires each reliability coordinator, transmission operator and balancing authority to have a plan to continue reliable operations and to maintain situational awareness in the event its control center is no longer operable. 91. Order No. 693 approved Reliability Standard EOP-008-0. In addition, the Commission directed the ERO to develop a modification to EOP-008-0 that, among other things, includes a Requirement that provides for backup capabilities that, at a minimum, requires transmission operators and balancing authorities that have operational control over significant portions of generation and load to have minimum backup capabilities, but may do so through contracting for these services instead of through dedicated backup control centers. 70 70 *Id.* at P 672. s. Requests for Rehearing 92. Midwest ISO supports the outcome of Order No. 693 with regard to Commission mandates in EOP-008-0. However, it notes that ambiguities and potential misunderstandings could result from imprecise adjectives in the Reliability Standards. Specifically, for purposes of EOP-008-0, Midwest ISO advocates that the Commission should define an amount of load or generation that constitutes a “significant” portion of generation and load that would require entities to have minimum backup capabilities through backup control centers. Alternatively, Midwest ISO proposes that NERC could be directed to create a “safe-harbor” limit below which a system would not be considered significant unless found to be so by the Regional Entity or the ERO. t. Commission Determination 93. The Commission reiterates its direction in Order No. 693 that the goal of this Reliability Standard is to provide the continuation of Reliable Operation and the maintenance of situational awareness in the event that the primary control center is no longer operational. 71 To that end, every registered reliability coordinator, balancing authority, transmission operator, and centrally dispatched generator operator should have a plan and means of achieving the outcome of the plan upon the loss of their respective control centers. The Commission has identified three requirements as a minimum for the plans—independence from the primary control center, capability to operate for a prolonged period corresponding to the time it would take to replace the primary control center, and the provision of a minimum set of tools and facilities to replicate the critical reliability functions of the primary control center. The Reliability Standard should provide specific Requirements, based on the size or impact to Reliable Operation, to achieve the Commission's requirements. 71 *See* Order No. 693 at P 659. 94. The Commission declines to define a “safe harbor” limit requested by Midwest ISO. We directed the ERO, through the Reliability Standards development process, to identify what Requirements are necessary on which size entities to achieve the Commission's directives and the goal of this Reliability Standard. Since there are many equally efficient ways of achieving the Commission's direction, we will not identify any specific method or safe harbor. 4. FAC-003-1 95. FAC-003-1 addresses vegetation management on transmission rights-of-way. As proposed, FAC-003-1 would apply to transmission lines operated at 200 kV or higher voltage (and lower-voltage transmission lines which have been deemed critical to reliability by a regional reliability organization). It would require each transmission owner to have a documented vegetation management program in place, including records of its implementation. Each program must be developed for the geographical area and specific design configurations of the transmission owner's system. 96. Order No. 693 approved Reliability Standard FAC-003-1. In addition, while we did not direct the ERO to submit a modification to the general limitation on applicability to facilities above 200 kV, we required the ERO to address Commission concerns regarding the applicability threshold through the ERO's Reliability Standards development process. 72 The Commission was concerned that the bright-line applicability threshold of 200 kV in this Reliability Standard would exclude a significant number of transmission lines that could impact Bulk-Power System reliability. We stated that, in proposing to require the ERO to modify the Reliability Standard to apply to Bulk-Power System transmission lines that have an impact on reliability as determined by the ERO, we did not intend to make this Reliability Standard applicable to fewer facilities than it is currently, but to extend the applicability to lower-voltage facilities that have an impact on reliability. 72 *Id.* at P 735. u. Requests for Rehearing 97. NRECA asks that the Commission clarify that Order No. 693 did not mandate that FAC-003-1 apply to lines below 200 kV. NRECA believes that a fair reading of Order No. 693 is that the Commission only directed the ERO to give additional consideration to having FAC-003-1 apply to lines below 200 kV and did not purport to require such a modification. 73 However, NRECA claims that other portions of Order No. 693 appear to go further, such as where the Commission states that it is requiring the Reliability Standard “to include a greater number of entities* * *”. 74 In view of the potential ambiguity, NRECA requests that the Commission clarify that it is not dictating a particular outcome to the ERO's deliberations, as such a directive would be contrary to section 215 of the FPA, Order Nos. 672 and 672-A, and other portions of Order No. 693. Alternatively, NRECA requests rehearing. 73 NRECA at 23, citing Order No. 693 at P 706 (“We will not direct NERC to submit a modification to the general limitation on applicability as proposed in the NOPR. However, we will require the ERO to address the proposed modification through its Reliability Standards development process”). 74 NRECA at 23, citing Order No. 693 at P 711. v. Commission Determination 98. We will grant NRECA's request for clarification. First, in Order No. 693, we specifically stated that “[w]e will not direct NERC to submit a modification to the general limitation on applicability [in FAC-003-1] as proposed in the NOPR.” 75 Further, as a general matter, we stated that a direction for modification should not preclude the consideration of viable alternatives in the ERO's Reliability Standards development process. 76 75 Order No. 693 at P 706. 76 *Id.* at P 185-86. 99. In Order No. 693, the Commission stated that it was concerned that the bright-line applicability threshold of 200 kV would exclude a significant number of transmission lines that could impact Bulk-Power System reliability. We noted that, at that time no regional reliability organization had used its discretion to designate lower voltage lines under the proposed Reliability Standard, even though there are lower voltage lines involving IROL. 77 The Commission was concerned that this approach would not require all transmission lines that could impact Bulk-Power System reliability to be included under this Reliability Standard. While the Commission did not mandate that FAC-003-1 apply to lines below 200 kV, the Commission did require the ERO to address the Commission's concerns through its Reliability Standards development process. 77 The Commission notes that the Regional Entities have since filed their definitions of bulk electric system and that at least one Regional Entity, WECC, has designated lower voltage facilities that must comply with the Reliability Standards. 5. IRO-001-1 100. IRO-001-1 requires that a reliability coordinator have reliability plans, coordination agreements and the authority to act and direct reliability entities to maintain reliable system operations under normal, contingency and emergency conditions. Requirement R3 provides that a reliability coordinator “shall have clear decision-making authority to act and direct actions to be taken” by applicable entities to “preserve the integrity and reliability of the bulk electric system and these actions shall be taken without delay but no longer than 30 minutes.” 101. Order No. 693 approved Reliability Standard IRO-001-1. In Order No. 693, the Commission declined to adopt a change suggested by Santa Clara that would only require the commencement of corrective control action within a 30-minute limit. We found that the requirement to take action without delay and within the 30-minute limit is important to minimize the amount of time the system operates in an insecure mode and is vulnerable to cascading outages. 78 78 *Id.* at P 898. w. Requests for Rehearing 102. Santa Clara seeks rehearing of the Commission's determination not to order the ERO to modify Reliability Standard IRO-001-1. Santa Clara is concerned that the 30-minute time period during which entities must take remedial action under this Reliability Standard could be too short with respect to physical actions that must be taken where the facilities which are subject to these actions cannot be readily accessed within the 30-minute time period. 79 79 In its comments to the NOPR, Santa Clara requested that this requirement of IRO-001-1 be revised to read: “Actions shall be commenced without delay, but in any event, shall commence within 30 minutes.” Santa Clara Comments, December 28, 2006 at 30. 103. First, Santa Clara maintains that the reliability coordinator could direct that load be dropped within Silicon Valley Power's
(SVP)service territory. 80 According to Santa Clara, those directives could only be implemented through a physical activity, such as opening breakers within certain substations, and cannot be accomplished at all times using an electronic signal from SVP's control center. Therefore, Santa Clara claims that, while SVP personnel would respond to the reliability coordinator's directive immediately, the required action might not be able to be accomplished within 30 minutes. 80 SVP is the utility division of Santa Clara. 104. As another example, Santa Clara states that SVP has a program through which certain SVP retail customers can commit to reduce base load by 10 percent where an emergency exists in its control area. However, Santa Clara maintains that reducing load by shutting down power to specific buildings can take longer than 30 minutes. Santa Clara states that it is not seeking to have the language in IRO-001-1 modified as it requested in comments to the NOPR. Rather, it seeks to have the Commission grant rehearing to direct NERC to modify IRO-001-1 and allow Santa Clara to work with NERC to develop clarifications and refinements to IRO-001-1 to remedy its concerns. 105. Avista seeks clarification of the intent of Order No. 693 as to whether the authority of a reliability coordinator to issue directives to reliability entities arises out of
(i)reliability coordinator contracts or
(ii)Commission-approved Reliability Standards without reliance on reliability coordinator contracts. According to Avista, if the authority of a reliability coordinator is non-contractual and arises out of Commission-approved Reliability Standards, the Commission must make sure that such authority is accompanied by equitable treatment of reliability entities. For example, Avista states that the Commission should require equitable compensation for re-dispatch of generation required by the reliability coordinator and emphasizes the need for fair and impartial procedures and methodologies are adopted to ensure that such equitable treatment is provided. 106. Avista states the Commission's statement in Order No. 693 that it “clarifies that it did not intend to change existing contracts, impose new organizational structures or otherwise affect existing agreements that set forth the responsibilities of various entities” 81 applies to existing agreements that affect reliability coordinator functions. According to Avista, provisions of IRO-001-1 seem to imply that, as to the source and scope of authority for a reliability coordinator to issue directives, existing contracts may have been superseded, or rendered moot or unnecessary, by Order No. 693. In particular, Avista contends that Requirement R8 of IRO-001-1 seems to suggest that contracts are unnecessary to authorize reliability coordinators to issue directives. 82 81 Order No. 693 at P 141. 82 Requirement R8 states: “R8. Transmission Operators, Balancing Authorities, Generator Operators, Transmission Service Providers, Load-Serving Entities, and Purchasing-Selling Entities shall comply with Reliability Coordinator directives unless such actions would violate safety, equipment, or regulatory or statutory requirements. Under these circumstances, the Transmission Operator, Balancing Authority, Generator Operator, Transmission Service Provider, Load-Serving Entity, or Purchasing-Selling Entity shall immediately inform the Reliability Coordinator of the inability to perform the directive so that the Reliability Coordinator may implement alternate remedial actions.” 107. Avista asserts that, if transmission operators or balancing authorities or other reliability entities are subject to a non-contractual duty imposed by the Commission under Order No. 693 to comply with the directives of a reliability coordinator, the Commission should clearly indicate such a requirement. It notes that, in another proceeding, Western Electricity Coordinating Council
(WECC)seems to suggest that it believes that when the reliability coordination Reliability Standards become mandatory, the existing contracts regarding reliability or security coordination no longer will be relevant and will not be necessary to authorize reliability coordinators to issue mandatory directives to reliability entities. 83 83 Supplemental Comments of the Western Electricity Coordinating Council
(WECC)filed March 12, 2007, in Docket No. RR06-3-001 at 13 (“Currently the BAs [balancing authorities] and TOPs [transmission operators] have a contractual obligation to comply with such directives, except in narrow, enumerated circumstances. Once the reliability standards are mandatory, BAs and TOPs must obey such directives or be subject to major penalties or other sanctions.”) (footnote omitted). 108. On the other hand, Avista maintains that additional provisions of IRO-001-1 suggest that reliability coordinators must have contracts or other written evidence in place that delineate and evidence their authority over reliability entities. For example, Avista cites measure M2 of IRO-001-1, which states that each reliability coordinator shall have and provide upon request evidence that could include, but is not limited to, job descriptions, signed agreements, an authority letter signed by an officer of the company, or other equivalent evidence that will be used to confirm that the reliability coordinator has the authority to act as described in Requirement 3. According to Avista, this provision suggests that the source of authority to issue directives lies in a contractual relationship between the reliability coordinator and each reliability entity covered by the requirements of Requirement R3. 84 In Avista's view, the language in the Purpose section indicates that the purpose of IRO-001-1 is to establish authority of reliability coordinators over reliability entities through contracts, in addition to establishing internal authority through delegations of authority and plans presumably through Requirement R2. 84 Requirement R3 states, “The Reliability Coordinator shall have clear decision-making authority to act and to direct actions to be taken by Transmission Operators, Balancing Authorities, Generation Operators, Transmission Service Providers, Load Serving Entities and Purchasing-Selling Entities within its Reliability Coordinator Area to preserve the integrity and reliability of the Bulk Electric System.” 109. Avista asserts that the security coordinator in the Pacific Northwest, PNSC, does not have contractual relationships with reliability entities other than control area operators. Avista contends that, if the authority of a reliability coordinator to issue directives to reliability entities arises out of reliability coordinator contracts, the reliability coordinator will need to enter into contractual relationships with each of the reliability entities within its area—which would expand the scope of and parties to the current PNSC contracts. Further, Avista states that existing contracts may not contain provisions regarding the authority of reliability coordinators to issue directives to reliability entities that fully track the Reliability Standards. 85 85 For example, Avista contends that Requirements R8 and R3 of IRO-001-1, when read together, contain very broad language. 110. Therefore, Avista requests rehearing and asks that the Commission require that
(1)reliability coordinators develop and file contracts or tariffs that govern their reliability coordination authority and activities, and
(2)such contracts or tariffs ensure equitable treatment of reliability entities by reliability coordinators and provide adequate procedures and methodologies to help ensure such equitable treatment. Avista also seeks rehearing for the purpose of expanding the time to transition from the current, voluntary contractual arrangements to the arrangements contemplated by Order No. 693. 111. Specifically, Avista asserts that the Commission should require reliability coordinators to file such contracts or tariffs under section 205 of the FPA. In this regard, Avista states that the Commission should, as a first step, require reliability coordinators to submit for filing their existing contracts, such as the contracts between PNSC and the control area operators. According to Avista, filing of these contracts or tariffs under section 205 should ensure the equitable treatment of reliability entities, provide a mechanism for redress in the event of inequitable treatment, and provide a basis for the Commission's determination that the Reliability Standards approved by Order No. 693 are just and reasonable. x. Commission Determination 112. In response to Avista, the Commission clarifies that a reliability coordinator's authority to issue directives arises out of the Commission's approval of Reliability Standards that mandate compliance with such directives. Avista is correct that contracts are unnecessary to authorize reliability coordinators to issue directives. Under the voluntary reliability scheme in place prior to section 215 of the FPA, a contractual basis was needed to assure that entities would comply with a reliability coordinator's directive. Pursuant to the current, mandatory reliability scheme established by statute, contracts are no longer needed. We view the concerns raised by Avista as part of the transition from a voluntary to mandatory scheme. Although, as noted by Avisa, IRO-001-1 retains references to contracts, we view these as vestiges of an earlier program that no longer control given the current, mandatory mechanism. 113. Avista's assertion that, if transmission operators, balancing authorities or other reliability entities are subject to a non-contractual duty imposed by the Commission under Order No. 693 to comply with the directives of a reliability coordinator, the Commission should have clearly indicated such a requirement, is not justified. First, the Commission believes that this duty was clearly laid out in the Reliability Standards themselves. However, the duty to comply with Reliability Standards is imposed by section 215 of the FPA, not by contract. The Reliability Standards approved by the Commission include requirements that certain users, owners and operators of the Bulk-Power System follow directions given by the reliability coordinators. 86 The duty to follow such directions lies in the duty to comply with Reliability Standards as laid out in section 215 of the FPA and the Commission's regulations. 86 For example, Requirement R9 of IRO-001-1 states that transmission operators, balancing authorities, generator operators, transmission service providers, load-serving entities, and purchasing-selling entities shall comply with Reliability Coordinator directives unless such actions would violate safety, equipment, or regulatory or statutory requirements. 114. The Commission notes that Avista uses the Commission's statement that it “clarifies that it did not intend to change existing contracts, impose new organizational structures or otherwise affect existing agreements that set forth the responsibilities of various entities” 87 for the proposition that the Commission did not intend to change or otherwise affect existing agreements about reliability coordinator functions. We disagree with Avista on this point. The Commission made this statement regarding the responsibility for functions in the Functional Model, especially regarding ISOs, RTOs or any organizations that pool resources. In that statement, we clarified that we were not changing any contract to which an ISO, RTO or pooled resource organization is a party as to who must comply with specific requirements of the Reliability Standards. 87 Order No. 693 at P 141. 115. In response to Avista's arguments regarding Measure M2 of IRO-001-1, the Commission does not believe that this measure imposes a requirement that reliability coordinators must have contracts in place. Measure M-2 of IRO-001-1 requires each reliability coordinator to have and provide upon request evidence that it has the authority to have clear decision-making authority to act and to direct actions to be taken by certain users, owners and operators within its area to preserve the integrity and reliability of the bulk electric system. Neither the Reliability Standard nor the Commission prescribed the form of such evidence. 116. Avista's concerns regarding whether existing contracts, including those regarding the contracts with PNSC, and whether contracts, generally, have been superseded or rendered moot or unnecessary by Order No. 693 are beyond the scope of this proceeding. This proceeding established mandatory Reliability Standards, including those pertaining to directions by reliability coordinators. Reliability coordinator contracts are not before the Commission in this proceeding. Therefore, the Commission cannot rule here on any issue regarding such contracts. 117. The Commission denies Avista's request that the Commission require reliability coordinators to develop and file contracts or tariffs that govern their reliability coordination authority and activities. The Commission understands that reliability must be a primary goal. Each user, owner and operator of the Bulk-Power System must be in compliance with the Reliability Standards so that everyone can have the benefits of using the system. As stated above, the Reliability Standards do not prescribe the form through which each reliability coordinator must provide evidence of its clear decision-making authority to act and to direct actions to be taken by certain entities. To that end, it is unnecessary to require each reliability coordinator to file a contract or tariff. 118. We deny Santa Clara's request for rehearing. In Order No. 693, the Commission noted that various commenters provided specific suggestions to improve or otherwise modify a Reliability Standard that address issues not raised in the NOPR. In such circumstances, the Commission directed the ERO to consider such comments as it modifies the Reliability Standards during the three-year review cycle contemplated by NERC's Work Plan through the ERO Reliability Standards development process. The Commission, however, did not direct any outcome other than that the comments receive consideration. 88 88 *See id.* at P 188. 119. However, the Commission denied Santa Clara's specific request to modify Requirement R3 of IRO-001-1, explaining that, when system integrity or reliability is jeopardized, *e.g.* , when IROLs or SOLs are exceeded, the relevant reliability entities must take corrective control actions to return the system to a secure and reliable state as soon as possible but not longer than 30 minutes. 89 The Commission believes that this reaction time has been vetted through the industry and that the 30-minute time limit for action is important to minimize the amount of time the system operates in an insecure mode and is vulnerable to cascading outages. 89 *Id.* at P 898. 6. IRO-005-1 and IRO-005-2 120. IRO-005-1 ensures energy balance and transmission reliability for the current day by identifying tasks that reliability coordinators must perform throughout the day. Order No. 693 approved Reliability Standard IRO-005-1. y. Requests for Rehearing 121. TANC requests clarification as to whether the Commission intended to approve IRO-005-1 or IRO-005-2 in Order No. 693. Although the Commission states that it approves IRO-005-1, 90 TANC notes that NERC submitted a later version, IRO-005-2, in its November filing. Therefore, TANC seeks clarification that the Commission intended to approve IRO-005-1, rather than the more recently filed IRO-005-2. 90 *See Id.* at P 945, 951. z. Commission Determination 122. The Commission grants TANC's request for clarification. As stated in Order No. 693, the Commission approved version one of IRO-005. 91 91 The Commission notes that many provisions of IRO-005-2 only become effective when BAL-002 is retired. If and when NERC proposes to retire BAL-002, we will make a determination on IRO-005-2. 7. MOD-013-1 123. MOD-013-1 requires the regional reliability organizations within an Interconnection to develop comprehensive dynamics data requirements and reporting procedures needed to model and analyze the dynamic behavior and response of each Interconnection. More specifically, the regional reliability organization, in coordination with its transmission owners, transmission planners, generator owners and resource planners within an Interconnection, is required to:
(1)Participate in development of documentation for their Interconnection data requirements and reporting procedures;
(2)participate in the review of those data requirements and reporting procedures at least every five years; and
(3)make the data requirements and reporting procedures available to NERC and other specified entities upon request. 124. Because MOD-013-1 is a fill-in-the-blank standard, the Commission stated that it will not approve or remand MOD-013-1 until the ERO submits additional information. However, the Commission directed the ERO to develop a modification to MOD-013-1 to
(1)permit entities to estimate dynamics data if they are unable to obtain unit specific data for any reason;
(2)require verification of the dynamic models with actual disturbance data and
(3)expand the applicability section to include the planning authority, transmission operator and transmission planner. aa. Requests for Rehearing 125. TANC requests that the Commission clarify that it erred in directing the ERO to apply MOD-013-1 to transmission operators and transmission planners. Although the Commission left Reliability Standard MOD-013-1 pending, TANC asserts that the Commission stated that it would adopt the NOPR proposal to expand the applicability section to include planning authorities, but in a later summary paragraph directed the ERO to apply the standard to transmission operators and transmission planners, in addition to planning authorities. 92 TANC states that the inclusion of transmission operators and transmission planners was neither mentioned in the NOPR nor discussed in Order No. 693. In the alternative, TANC requests rehearing. 92 *Compare* Order No. 693 at P 1199; 1200. 126. ISO-New England requests rehearing of the Commission's determination to
(1)permit entities to estimate dynamics data if they are unable to obtain unit specific data for any reason;
(2)require verification of the dynamic models with actual disturbance data; and
(3)expand the applicability section to include the planning authority, transmission operator and transmission planner. ISO-New England states that the Commission's direction to the ERO to modify MOD-013-1 appears internally inconsistent with other positions the Commission took in Order No. 693. First, ISO-New England notes that the Commission required the ERO to modify MOD-013-1 because it would allow the use of estimated data but, at the same time, required “verification of the dynamic models with actual disturbance data.” 127. Second, ISO-New England observes that the Commission stated in Order No. 693 that “[f]ailure to provide the data needed for dynamics system modeling and simulation would halt regional reliability assessment processes and impede planners from accurately predicting future system conditions, which would be detrimental to system reliability.” 93 Further, ISO-New England points to the Commission's statement in Order No. 693 that it believes “to achieve the goal of this Reliability Standard of having the ability to accurately model and analyze the dynamic behavior and response of each Interconnection, it is necessary to have accurate data.” 94 In sum, ISO-New England argues that just as the Commission has recognized the importance of accurate data with respect to the administration of other NERC Reliability Standards, the Commission should equally recognize the importance with regard to MOD-013-1. 93 *Id.* at P 1177. 94 *Id.* at P 1188. 128. Further, ISO-New England argues that the Blackout Report suggests that actual data should be required. 95 Specifically, ISO-New England points to the Blackout Report's recommendation to improve the quality of system modeling data and data exchange practices. ISO-New England notes that the Blackout Report indicates that “after-the-fact models developed to simulate August 14 conditions and events found that the dynamic modeling assumptions for generator and load power factors in regional planning and operating models were frequently inaccurate.” 96 Further, ISO-New England states that the Task Force commented that, during the investigation process, it too found that data was frequently not available. 97 Consequently, ISO-New England maintains that the Task Force recommended the collection of *validated* data. 98 95 ISO-New England at 4, citing Blackout Report at 160-61. 96 Blackout Report at 160. 97 *Id* . at 161. 98 ISO-New England at 4, citing Blackout Report at 160-61. 129. Finally, ISO-New England states that Order No. 693 leaves too much unclear in terms of its direction that entities should be permitted to estimate dynamics data if unit specific data is unavailable “for any reason.” According to ISO-New England, this exemption appears “overbroad” and could serve as the basis for an asset owner's rejection of any reasonable request for the unit specific data. ISO-New England requests that, if the Commission retains its direction to permit entities to estimate dynamics data, that it narrow the scope of the exemption that asset owners may employ in providing unit specific data. bb. Commission Determination 130. The Commission denies TANC's request for rehearing. TANC correctly identifies that the Commission did not approve or remand MOD-013-1, but provided direction to the ERO concerning the addition of entities not already identified in the Reliability Standard. Although we acknowledge that Order No. 693 did not include a discussion of the addition of transmission operators and transmission planners in the applicability section of this Reliability Standard, in directing the ERO to apply MOD-013-1 to transmission operators and transmission planners, we recognized that transmission operators and transmission planners would be required to perform coordination functions under Requirement R1 of MOD-013-1. Therefore, the Commission directed the ERO to specifically include transmission operators and transmission planners in the applicability section of MOD-013-1 so as to be clear what the Commission considers to be the minimum applicability of this Reliability Standard and to make the Reliability Standard internally consistent. 131. In response to ISO-New England's concerns, the Commission notes that the data referenced in Requirement R1.1 include “items such as inertia constant, damping coefficient, saturation parameters, and direct and quadrature axis reactances and time constants, excitation systems, voltage regulators, turbine-governor systems, power system stabilizers, and other associated generation equipment.” Much of these data will be estimated from similar classes of facilities prior to the facilities going into service. The Commission clarifies that its determination to permit entities to estimate dynamics data if they are unable to obtain unit specific data for any reason is limited to the initial analysis of dynamics data. While we continue to believe that “[a]chieving the most accurate possible picture of the dynamic behavior of the Interconnection requires the use of actual data,” 99 we acknowledge that, in certain circumstances, actual data may not be initially available and only obtained through “verification of the dynamic models with actual disturbance data.” In addition, in Order No. 693, we determined that “the Reliability Standard should include Requirements that such estimates be based on sound engineering principles and be subject to technical review and approval of any estimates at the regional level.” 100 This procedure would allow peer review and approval at a regional level such that an entity could not avoid using sound engineering principles in obtaining the initial data for the model. 99 Order No. 693 at P 1197. 100 *Id* . 8. PRC-007-0, PRC-008-0, and PRC-009-0 132. PRC-007-0 requires transmission owners, transmission operators, load-serving entities and distribution providers to provide, and annually update, their underfrequency data to facilitate the regional reliability organization's maintenance of the UFLS program database. 101 PRC-008-0 requires transmission owners and distribution providers to implement UFLS equipment maintenance and testing programs and provide program results to the regional reliability organization. PRC-009-0 ensures that the performance of a UFLS system is analyzed and documented following an underfrequency event by requiring the transmission owner, transmission operator, load-serving entity and distribution provider to document the deployment of their UFLS systems in accordance with the regional reliability organization's program. Order No. 693 approved Reliability Standards PRC-007-0, PRC-008-0, 102 and PRC-009-0. 103 101 A UFLS program is a “safety net” that will automatically drop load at specific locations in the power system in an effort to re-establish the balance between generation and load to avoid cascading. 102 The Commission also directed the ERO to develop a modification to PRC-008-0 that includes a requirement that maintenance and testing of a protection system must be carried out within a maximum allowable interval that is appropriate to the type of the protection system and its impact on the reliability of the Bulk-Power System. The Commission's direction to modify PRC-008-0 is not at issue in this proceeding. 103 Order No. 693 at P 1484, 1491, and 1498. 133. These Reliability Standards reference PRC-006-0, which the Commission did not approve or remand because the regional procedures required by the Reliability Standard had not been submitted and because it applies to regional reliability organizations. 104 The Commission reasoned that since PRC-007-0, PRC-008-0, and PRC-009-0 are existing Reliability Standards that have been followed on a voluntary basis, transmission owners, transmission operators, distribution providers and load-serving entities are generally aware of their requirements. In addition, the Commission stated that a reference in an approved Reliability Standard to an unapproved Reliability Standard may be considered in an enforcement action, but is not a reason to delay approving and enforcing this Reliability Standard. 104 *Id* . at P 1479. cc. Request for Rehearing 134. APPA requests rehearing of Commission approval of PRC-007-0, PRC-008-0, and PRC-009-0. As discussed more fully in the section concerning “Fill-in-the-Blank Standards above, 105 APPA believes that each of these three Reliability Standards cannot be approved because it references a fill-in-the-blank standard that was not approved or remanded by the Commission. 105 *See* section II.C.2., 2. Fill-in-the-Blank Standards, *supra* . 135. According to APPA, PRC-006-0 is the Reliability Standard that requires the development of regional UFLS programs and contains detailed and exacting requirements that the regions develop and apply to applicable entities. According to APPA, PRC-006-0 is the source of the design and documentation of regional UFLS programs and is not merely administrative or a simple codification of established industry practice. Rather, APPA asserts that PRC-006-0 sets forth very specific requirements that each regional UFLS program must meet. 136. APPA asserts that PRC-007-0, PRC-008-0 and PRC-009-0 go much further than imposing data requirements. APPA states that PRC-007-0 requires, among other things, that any transmission owner and distribution provider with a UFLS program must ensure that its UFLS program is consistent with its regional reliability organization's UFLS program requirements. PRC-008-0 requires transmission owners and distribution providers to implement UFLS equipment maintenance and testing programs and provide program results to the regional reliability organization. Finally, APPA maintains that PRC-009-0 requires a transmission owner, transmission operator, load-serving entity, and distribution provider that owns or operates a UFLS program to analyze performance under that unapproved program. According to APPA, because the required UFLS program has not been approved or reviewed by the Commission under PRC-006-0, users, owners and operators of the Bulk-Power System cannot be required to have a program consistent with it. 137. APPA maintains that the fact that these three Reliability Standards apply to specific users, owners and operators of the Bulk-Power System, rather than a regional reliability organization, does not justify approval of a reliability standard that requires users, owners and operators of the Bulk-Power System to comply with regional UFLS programs that have not been approved by NERC, and have not been shown to meet the procedural and substantive requirements of section 215 of the FPA and Order No. 672 for Reliability Standards that qualify for approval and enforcement by the ERO and this Commission. Further, APPA contends that, although the Commission appears to have approved these Reliability Standards in part because they have “been followed on a voluntary basis,” many small entities have often not been part of regional reliability organizations and have not necessarily been aware of, much less followed, regional programs on a voluntary basis. dd. Commission Determination 138. We deny APPA's request for rehearing and affirm our approval of Reliability Standards PRC-007-0, PRC-008-0 and PRC-009-0. However, as explained below, we clarify that the limited provisions that relate to the regional UFLS program developed under PRC-006-0 are not enforceable until the Commission approves PRC-006-0. 106 Specifically, any entity that is responsible for compliance with PRC-007-0, PRC-008-0 or PRC-009-0 that currently does not have a UFLS program is not required to develop such a program until PRC-006-0 is approved. Likewise, a responsible entity with an existing UFLS program is not required to comply with a regional UFLS program until the Commission approves PRC-006-0. An explanation for this determination follows. 106 Such provisions would similarly be enforceable if NERC develops and the Commission approves a substitute for PRC-006-0. 139. Each of the requirements in PRC-007-0, PRC-008-0 and PRC-009-0, with the exception of Requirement R1 in PRC-007-0, apply only to those entities that have a UFLS program. Therefore, contrary to APPA's assertion, PRC-007-0, PRC-008-0 and PRC-009-0 do not require any entity that does not have a UFLS program to develop one. That requirement would fall under PRC-006-0. To be clear, the Commission will not impose a penalty for the failure to have a UFLS program until such time as PRC-006-0 or a suitable substitute, and the attendant regional UFLS programs, are approved. 140. However, we disagree with APPA that the fact that Requirement R1 references the regional UFLS program precludes us from approving PRC-007-0, PRC-008-0 and PRC-009-0, which provide for updating an entity's UFLS program (PRC-007-0), maintaining the entity's UFLS facilities (PRC-008-0), and reporting on events that involve the entity's UFLS (PRC-009-0). Rather, we uphold our earlier decision to approve these three Reliability Standards with the clarification that Requirement R1 of PRC-007-0 is not enforceable until the Commission approves PRC-006-0. We further clarify, consistent with our discussion above, that, until PRC-006-0 is approved, an entity that does not currently have a UFLS program is not required to develop one or to comply with PRC-007-0, PRC-008-0 and PRC-009-0. However, an applicable entity that currently has a UFLS program must continue to maintain that program as required by these three Reliability Standards. As discussed below, the Requirements of PRC-007-0, PRC-008-0 and PRC-009-0 are necessary for Bulk-Power System reliability and are not dependent on PRC-006-0. 141. PRC-007-0, Requirement R2 states that the applicable entities “shall provide, and annually update, its underfrequency data as necessary for its Regional Reliability Organization to maintain and update a UFLS program database.” 107 It is vital to maintain this safety net that each registered transmission owner, transmission operator, distribution provider and load-serving entity with a UFLS system has a program to annually review the location of their UFLS devices and the magnitude of load that can be collectively activated as necessary. 108 The reason for the annual review is that it is not unusual for loads to be switched among distribution feeders and, with load growth, additional distribution feeders may need to be included to meet the requirements of the entities' UFLS program. In addition, it is necessary to verify that sensitive and critical loads such as hospitals and high impact facilities continue to be excluded from the load shedding program. While it may be necessary to shed load to preserve the Bulk-Power System, it is also good public policy to limit the nature of the facilities that could be interrupted. 107 While Requirement R2 identifies the regional reliability organization, we note that this information should go to the Regional Entity or the ERO as the entities with statutory authority under section 215 of the FPA. 108 Blackout Report at 62. 142. PRC-008-0, Requirement R1 states that the applicable entities “shall have a UFLS equipment maintenance and testing program in place.” These programs are in place to assure that this last resort system, which has been proven to be necessary to limit the geographic scope of blackouts, operates as expected when required to in accordance with the reliability assessments. 143. PRC-009-0, Requirement R1 identifies what analysis must be completed by the applicable entities after an underfrequency event. It states that “[t]he analysis shall address the performance of UFLS equipment and program effectiveness following system events resulting in system frequency excursions below the initializing set points of the UFLS program.” This requirement assures that actual data on the operation of the UFLS system can be correlated with simulations to provide a check on how well the UFLS system is performing its last resort function. 144. Requirement R1 of PRC-007-0 requires the transmission owner and distribution provider to “ensure that its UFLS program is consistent with its Regional Reliability Organization's UFLS program requirements.” Because the regional UFLS program would be developed pursuant to PRC-006-0, and the Commission has not approved or remanded that Reliability Standard, we agree with APPA that Requirement R1 cannot be enforced as written until the Commission approves PRC-006-0, because Requirement R1 would essentially require compliance with an unapproved Reliability Standard. Because Requirement R1 of PRC-007-0 is not enforceable until the Commission approves PRC-006-0, a transmission owner's or distribution provider's UFLS program cannot be judged for compliance with the unapproved regional UFLS program. 145. While the Commission will not enforce compliance with PRC-006-0, the possible reduction in the amount of load available for underfrequency load shedding can negatively impact the Reliable Operation of the Bulk-Power System. Because of the importance of the UFLS programs and the fact that there currently are no Commission-approved Reliability Standards by which to judge individual UFLS programs, the Commission believes it is important to monitor the current UFLS programs so that we can consider if they provide an adequate safety net for the Bulk-Power System. Therefore, the Commission directs the ERO to collect the frequency and magnitude of load in UFLS systems from applicable entities for this summer, from date of order through September 30, 2007, and perform an analysis as to the ability of the existing system to provide the required last resort function within 90 days of this order. This analysis should consider if the existing UFLS plans together provide an adequate safety net for the Bulk-Power System. 146. In discussing potential ambiguities in the proposed Reliability Standards in Order No. 693, the Commission stated that, even if some clarification of a particular Reliability Standard would be desirable at the outset, making it mandatory allows the ERO and the Regional Entities to provide that clarification on a going-forward basis while still requiring compliance with Reliability Standards that have an important reliability goal. 109 We believe that this principle applies equally to a Reliability Standard where one Requirement may not be enforceable, but the Reliability Standard must be approved to enable enforcement of other Requirements. 109 Order No. 693 at P 277. *See also* Order No. 693 at P 147, 157-58, explaining that the Commission was approving and requiring modification to five Reliability Standards that apply partially to a regional reliability organization. 147. The reliability goal of PRC-007-0, PRC-008-0 and PRC-009-0 is to provide last resort system preservation measures by implementing an UFLS program. The Commission believes that this is an important reliability goal. The Commission understands that, until PRC-006-0 is approved, the UFLS program implemented will not be the one envisioned in PRC-006-0. We believe that, where a user, owner or operator does have a UFLS program, the data retention and reporting requirements incorporated in these Reliability Standards serve an extremely important goal of providing last resort system preservation measures. NERC can analyze the information to monitor whether the last resort system preservation measures are sufficient in the aggregate for the entire Bulk-Power System. Although the ERO and Regional Entities cannot penalize a user, owner or operator for an insufficient UFLS program until the Commission approves PRC-006-0, collection, analysis and submission of the UFLS information described above will provide NERC and the Commission with invaluable information regarding the reliability of the Bulk-Power System. 148. We further believe that, other than R1 in Reliability Standard PRC-007-0, the Requirements in the PRC Reliability Standards are independently enforceable. For example, R2 of Reliability Standard PRC-007-0 requires a transmission owner or distribution provider with a UFLS program to provide, and annually update, its underfrequency data. Although R2 contains the phrase “(as required by its Regional Reliability Organization),” the Commission believes that it is of vital importance for the transmission owner and distribution provider to update its UFLS data annually and provide it to the ERO. Because we have not approved any regional programs, this parenthetical currently has no meaning in the context of the approved Reliability Standard. Therefore, the Commission believes that these three Reliability Standards only apply to those entities that have a UFLS program, irrespective of whether a region requires it. 149. The Commission also denies rehearing of our approval of PRC-008-0. This Reliability Standard requires each transmission owner and distribution provider with a UFLS program to have a UFLS program in place that includes UFLS equipment identification and the schedule for UFLS equipment testing and maintenance. PRC-008-0 further requires each transmission owner and distribution provider with a UFLS program to implement its UFLS equipment maintenance and testing program and provide UFLS maintenance and testing program results to its regional reliability organization and NERC on request. In this Reliability Standard, any transmission owner or distribution provider that already has a UFLS program must develop its own equipment maintenance and testing program that complies with PRC-008-0. The Commission believes it is of great importance to Bulk-Power System reliability for such entities to perform such maintenance and testing. Because the maintenance and testing programs do not rely on regional reliability organization requirements, but are, rather, developed by the applicable entity itself, the Commission continues to believe that this Reliability Standard is enforceable regardless of whether the Commission has approved PRC-006-0. 150. Finally, the Commission does not believe that the fact that PRC-006-0 has not been approved or remanded necessitates granting rehearing of our approval of PRC-009-0. This Reliability Standard requires a transmission owner, transmission operator, load-serving entity and distribution provider that owns or operates a UFLS program to analyze and document its UFLS program performance in accordance with its regional reliability organization's UFLS program. The Commission acknowledges, as stated above, that currently there is no Commission-approved UFLS program. However, R1 of PRC-009-0 also includes independent criteria by which a user, owner or operator of the Bulk-Power System must analyze its UFLS program. R1 states that: The analysis shall address the performance of UFLS equipment and program effectiveness following system events resulting in system frequency excursions below the initializing set points of the UFLS program. The analysis shall include, but not be limited to: R1.1. A description of the event including initiating conditions. R1.2. A review of the UFLS set points and tripping times. R1.3. A simulation of the event. R1.4. A summary of the findings. 151. R2 of PRC-009-0 further requires the transmission owner, transmission operator, load-serving entity and distribution provider to provide documentation of the analysis of the UFLS program to its regional reliability organization and NERC on request after a system event. This analysis will better enable NERC to analyze system events and determine what actions need to be taken to ensure the Reliability of the Bulk-Power System. 152. Therefore, the Commission denies rehearing of our approval of PRC-007-0, PRC-008-0 and PRC-009-0. To be clear, we recognize that R1 of PRC-007-0 is not enforceable until the Commission approves PRC-006-0. Because, prior to that approval of PRC-006-0, PRC-007-0, PRC-008-0 and PRC-009-0 only apply to those entities that already have a UFLS program, these Reliability Standards do not require any entity that does not have a UFLS program to develop one, and the Commission will not impose a penalty for an entity's failure to have a UFLS program until the Commission approves PRC-006-0. Further, until PRC-006-0 has been approved, a UFLS program cannot be judged for compliance with an unapproved regional UFLS program. Therefore, the Commission clarifies that, until PRC-006-has been approved, only the data retention and reporting requirements, as well as the requirements for maintenance, testing requirements and analysis of UFLS performance following a triggering event in PRC-007-0, PRC-008-0 and PRC-009-0, are mandatory and enforceable. 9. TOP-008-1 153. TOP-008-1 requires a transmission operator to take immediate steps to mitigate System Operating Limit
(SOL)and Interconnection Reliability Operating Limit
(IROL)violations. Order No. 693 approved Reliability Standard TOP-008-1. 110 Order No. 693 summarized TOP-008-1 as requiring a transmission owner to take immediate steps to mitigate SOL and IROL violations. 111 110 *Id* . at P 1679. 111 *See id.* at P 1675. ee. Requests for Rehearing 154. TANC requests clarification that the Commission intended to use the term transmission operator, rather than transmission owner, as the correct applicable entity in Reliability Standard TOP-008-1. 112 TANC states that the text of the ERO-proposed Reliability Standard lists the transmission operator as the only entity to which TOP-008-1 applies. Alternatively, TANC requests rehearing. 112 *See id.* ff. Commission Determination 155. The Commission will grant TANC's request for clarification. TANC is correct that the Commission's use of the term transmission owner, rather than transmission operator, was in error. The transmission operator is the correct applicable entity in Reliability Standard TOP-008-1. III. Information Collection Statement 156. Order No. 693 contains information collection requirements for which the Commission obtained approval from the Office of Management and Budget (OMB). Given that this Order on Rehearing does not revise the regulation text of Order No. 693 and makes only minor clarifications to Order No. 693, OMB approval for this order is not necessary. However, the Commission will send a copy of this order to OMB for informational purposes. IV. Document Availability 157. 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. 158. 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. 159. User assistance is available for eLibrary and the FERC's Web site during normal business hours from our Help line at
(202)502-8222 or the Public Reference Room at
(202)502-8371 Press 0, TTY
(202)502-8659. E-Mail the Public Reference Room at *public.referenceroom@ferc.gov.* By the Commission. Kimberly D. Bose, Secretary. [FR Doc. E7-14340 Filed 7-24-07; 8:45 am] BILLING CODE 6717-01-P DEPARTMENT OF HOMELAND SECURITY Bureau of Customs and Border Protection 19 CFR Part 173 [CBP Dec. 07-62] Technical Correction: Voluntary Reliquidation of Deemed Liquidated Entries AGENCY: Customs and Border Protection, Homeland Security. ACTION: Final rule. SUMMARY: This document amends title 19 of the Code of Federal Regulations by making technical corrections to § 173.3, which provides for voluntary reliquidations. These technical corrections conform § 173.3 to 19 U.S.C. 1501, as amended by section 2107 of the Miscellaneous Trade and Technical Corrections Act of 2004, which permits Customs and Border Protection to voluntarily reliquidate entries that are deemed liquidated by operation of law. DATES: *Effective Date:* July 25, 2007. FOR FURTHER INFORMATION CONTACT: Richard B. Wallio, Office of International Trade, Customs and Border Protection, Tel.
(202)344-2556. SUPPLEMENTARY INFORMATION: Background This document makes technical corrections to § 173.3 of title 19 of the Code of Federal Regulations (19 CFR 173.3) to conform to changes to that section's underlying statutory authority. Section 173.3 concerns the voluntarily reliquidation of entries and provides that within 90 days from the date notice of the original liquidation is given to the importer, consignee, or agent, the port director may reliquidate on his own initiative a liquidation or reliquidation to correct errors in appraisement, classification, or any other element entering into the liquidation or reliquidation. Section 501 of the Tariff Act of 1930, as amended (19 U.S.C. 1501), provides the statutory authority for voluntary reliquidations and states that Customs and Border Protection
(CBP)may reliquidate an entry within 90 days from the date on which notice of the original liquidation is given or transmitted to the importer, his consignee or agent. Section 1501 was amended by section 2107 of the Miscellaneous Trade and Technical Corrections Act of 2004 (Pub. L. 108-429, 118 Stat. 2598) to include “deemed liquidations” of 19 U.S.C. 1504 as among the types of liquidations CBP is authorized to voluntarily reliquidate. The date of original liquidation of an entry that liquidated by operation of law is the date of deemed liquidation. This document makes technical corrections to § 173.3 to conform to the broadened scope of 19 U.S.C. 1501, as amended, which authorizes CBP to voluntarily reliquidate entries that have been deemed liquidated by operation of law pursuant to 19 U.S.C. 1504. Examples of types of entries which may be deemed liquidated by operation of law are countervailing duty (CVD), antidumping (AD), or drawback entries. Inapplicability of Public Notice and Comment Requirement and Delayed Effective Date Requirement Because the technical corrections to 19 CFR 173.3 set forth in this document merely conform to the statutory amendments to 19 U.S.C. 1501 effected by section 2107 of the Miscellaneous Trade and Technical Corrections Act of 2004, pursuant to 5 U.S.C. 553(b)(B), CBP finds that good cause exists for dispensing with notice and public procedure as unnecessary. For this same reason, pursuant to 5 U.S.C. 553(d)(3), CBP finds that good cause exists for dispensing with the requirement for a delayed effective date. The Regulatory Flexibility Act Because this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Executive Order 12866 These amendments do not meet the criteria for a “significant regulatory action” as specified in E.O. 12866. Signing Authority This document is being issued in accordance with 19 CFR 0.1(a)(1). List of Subjects in 19 CFR Part 173 Administrative practice and procedure, Customs duties and inspection. Amendment to the Regulations For the reasons stated above, part 173 of title 19 of the Code of Federal Regulations is amended as set forth below. PART 173—ADMINISTRATIVE REVIEW IN GENERAL 1. The authority citation for part 173 continues to read as follows: Authority: 19 U.S.C. 66, 1501, 1520, 1624. 2. In § 173.3, paragraph
(a)is amended by revising the first sentence to read as follows: § 173.3 Voluntary reliquidation.
(a)*Authority to reliquidate.* Within 90 days from the date notice of deemed liquidation or notice of the original liquidation is given to the importer, consignee, or agent, the port director may reliquidate on his own initiative a liquidation or a reliquidation to correct errors in appraisement, classification, or any other element entering into the liquidation or reliquidation, including errors based on misconstruction of applicable law. * * * Dated: July 20, 2007. Deborah J. Spero, Acting Commissioner, Customs and Border Protection. [FR Doc. E7-14406 Filed 7-24-07; 8:45 am] BILLING CODE 9111-14-P DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1310 [Docket No. DEA-284I] RIN 1117-AB11 Elimination of Exemptions for Chemical Mixtures Containing the List I Chemicals Ephedrine and/or Pseudoephedrine AGENCY: Drug Enforcement Administration (DEA), Department of Justice. ACTION: Interim rule with request for comments. SUMMARY: This Interim Rule removes the Controlled Substances Act
(CSA)exemptions for chemical mixtures containing ephedrine and/or pseudoephedrine with concentration limits at or below five percent. The Combat Methamphetamine Epidemic Act of 2005
(CMEA)added additional controls on ephedrine and pseudoephedrine and mandated that DEA limit the domestic production and importation of materials containing ephedrine and pseudoephedrine to quantities necessary for medical, scientific and other legitimate purposes (21 U.S.C. 952(a)(1) as amended). DEA is eliminating exemptions for these chemical mixtures. As such, all ephedrine and pseudoephedrine chemical mixtures, regardless of concentration and form, shall be subject to the regulatory provisions of the CSA. DEA is not prohibiting the importation, exportation, manufacture, or distribution of chemical mixtures containing ephedrine or pseudoephedrine in concentrations less than or equal to five percent. Rather, DEA is regulating the importation, exportation, manufacture, and distribution of these chemical mixtures by requiring persons who handle these chemical mixtures to register with DEA, maintain certain records common to business practice, and file certain reports, regarding these chemical mixtures. Chemical mixtures containing the List I chemicals ephedrine and pseudoephedrine will still be available for use. DATES: Effective August 24, 2007. Persons seeking registration must apply on or before August 24, 2007 in order to continue their business pending final action by DEA on their application. Written comments must be postmarked, and electronic comments must be sent, on or before September 24, 2007. ADDRESSES: To ensure proper handling of comments, please reference “Docket No. DEA-284I” on all written and electronic correspondence. Written comments being sent via regular mail should be sent to the Deputy Administrator, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative/ODL. Written comments sent via express mail should be sent to DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, VA 22301. Comments may be sent directly to DEA electronically by sending an electronic message to *dea.diversion.policy@usdoj.gov* . Comments may also be sent electronically through *http://www.regulations.gov* using the electronic comment form provided on that site. An electronic copy of this document is also available at the *http://www.regulations.gov* Web site. DEA will accept attachments to electronic comments in Microsoft Word, WordPerfect, Adobe PDF, or Excel file formats only. DEA will not accept any file format other than those specifically listed here. *Posting of Public Comments:* Please note that all comments received are considered part of the public record and made available for public inspection online at *http://www.regulations.gov* . Such information includes personal identifying information (for example, name, address, etc.) voluntarily submitted by the commenter. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also place all the personal identifying information you do not want posted online in the first paragraph of your comment and identify the information you want redacted. If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on *http://www.regulations.gov* . Personal identifying information and confidential business information identified and located as set forth above will be redacted and placed in the agency's public docket file, and, where possible, posted online. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION paragraph. FOR FURTHER INFORMATION CONTACT: Christine A. Sannerud, PhD, Chief, Drug & Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, telephone
(202)307-7183, fax
(202)353-1263, or e-mail *ode@dea.usdoj.gov.* SUPPLEMENTARY INFORMATION: I. Background Status of Dietary Supplements Containing Ephedrine and/or Pseudoephedrine Dietary supplements containing the List I chemicals ephedrine or pseudoephedrine are regulated as chemical mixtures under the Controlled Substances Act (CSA). DEA originally exempted these products from CSA regulatory control if the total concentration of the ephedrine and/or pseudoephedrine was at or below five percent, in an effort to reduce the regulatory burden on the dietary and nutritional supplement industry (68 FR 23195, May 1, 2003). However, on February 11, 2004, the Food and Drug Administration
(FDA)issued a Final Rule (69 FR 6787) declaring dietary supplements containing ephedrine alkaloids adulterated under the Federal Food, Drug, and Cosmetic Act (the FFD&C Act) because these dietary supplements present an unreasonable risk of illness or injury. Effective April 12, 2004, the rule prohibits the sale of dietary supplements containing ephedrine alkaloids such as ephedra (also known as Ma Huang, sida cordifolia and pinellia). The effect of the FDA rule was to ban the lawful marketing of these products. DEA notes that the FDA ban addresses only the marketing of dietary supplements containing ephedrine alkaloids. The raw materials used to manufacture these dietary supplements are not restricted by the FDA ban. Accordingly, to control those materials, DEA must address the importation, exportation, manufacture, or distribution of chemical mixtures with concentration limits of ephedrine and/or pseudoephedrine at or below five percent. The importation, exportation, manufacture, and distribution of chemical mixtures with concentration limits at or below five percent ephedrine and/or pseudoephedrine are addressed by the CSA and its implementing regulations. As there yet may be legitimate uses for chemical mixtures with concentration limits at or below five percent, the importation, exportation, manufacture, and distribution of these chemical mixtures (for purposes other than use in dietary supplements containing ephedrine alkaloids) are not prohibited by either FDA's ban regarding the marketing of such dietary supplements or by DEA law and regulations. Accordingly, as discussed further below, for DEA to regulate the importation, exportation, manufacture, and distribution of chemical mixtures containing ephedrine and/or pseudoephedrine with concentration limits at or below five percent, DEA must remove these chemical mixtures from their exempt status under CSA regulations. DEA recognizes that ephedra materials containing ephedrine and/or pseudoephedrine are used legitimately by practitioners of Traditional Chinese Medicine. This rulemaking does not restrict the utilization of such material for such legitimate purposes. This rulemaking will simply require importers and suppliers of such material to comply with DEA recordkeeping, registration, quota and import/export requirements. Plant Material Included in This Regulatory Action The ephedrine alkaloids, including, among others, ephedrine, pseudoephedrine, norephedrine, N-methylephedrine, norpseudoephedrine, N-methylpseudoephedrine, are chemical stimulants that occur naturally in some botanicals, but can be synthetically derived. The ingredient sources of the ephedrine alkaloids include raw botanicals ( *i.e.* , plants) and extracts from botanicals. Ma Huang, ephedra, Chinese Ephedra, and epitonin are several names used for botanical ingredients, primarily from Ephedra sinica Stapf, ephedra equisetina Bunge, Ephedra intermedia var. tibetica Stapf and Ephedra distachya Linne. (the Ephedras), that are sources of ephedrine alkaloids (including ephedrine and pseudoephedrine). Other plant sources that contain such ephedrine alkaloids include Sida cordifolia L. and Pinellia ternata (Thunb.) Makino. Common names that have been used for the various plants that contain ephedrine alkaloids include sea grape, yellow horse, joint fir, popotillo, and country mallow. Although the proportions of the various ephedrine alkaloids in botanical species vary from one species to another, in most species used commercially, ephedrine is typically the predominant alkaloid in the raw material. In addition to chemical mixtures from synthetic sources, this rulemaking includes those plant sources that contain the ephedrine alkaloids, ephedrine and/or pseudoephedrine. The names desert herb, squaw tea, Brigham tea, and Mormon tea refer to North American species of ephedra that do not contain ephedrine alkaloids but have been misused to identify ephedrine alkaloid containing ingredients. This rulemaking does not pertain to species of ephedra that do not contain ephedrine and/or pseudoephedrine. Combat Methamphetamine Epidemic Act of 2005
(CMEA)On March 9, 2006, the President signed the Combat Methamphetamine Epidemic Act of 2005 (CMEA), which is Title VII of the USA PATRIOT Improvement and Reauthorization Act of 2005. The CMEA mandates that DEA limit the domestic production and importation of materials containing ephedrine and pseudoephedrine (including ephedra) to quantities necessary for medical, scientific and other legitimate purposes (21 U.S.C. 826 and 952(a)(1) as amended). DEA is concerned about the illicit use of ephedra type material in the clandestine production of methamphetamine. While the legitimate market for dietary supplements containing such material has been cut by FDA's recent action, DEA has seen an increasing number of requests for importation of below-five percent ephedrine and/or pseudoephedrine material. DEA notes that there may be legitimate uses for these chemical mixtures. However, in light of FDA's action, DEA is concerned about the intended purpose of such material, especially given that such material has been seized in clandestine drug laboratories. Chemical Mixture Regulatory Control History The Chemical Diversion and Trafficking Act of 1988 (Pub. L. 100-690)
(CDTA)was passed by Congress to curtail the diversion of specific chemicals used in the illicit manufacture of controlled substances. The CDTA established recordkeeping and reporting requirements necessary for DEA to identify and track chemical diversion. While the CDTA achieved initial success in curtailing the diversion of chemicals, traffickers soon found and took advantage of certain shortcomings in the law. In the United States (U.S.), traffickers were able to obtain needed supplies by purchasing products that were exempted from regulation under the CDTA. Such products include chemical mixtures. Chemical Mixture Definition The CDTA created a definition of “chemical mixture” (21 U.S.C. 802(40)), and exempted chemical mixtures from the definition of “regulated transaction.” (21 U.S.C. 802(39)(A)(vi) as amended by CMEA) Chemical mixtures are defined as “a combination of two or more chemical substances, at least one of which is not a list I chemical or a List II chemical, except that such term does not include any combination of a List I chemical or a List II chemical with another chemical that is present solely as an impurity.” (21 U.S.C. 802(40)) Chemical Mixtures Containing Ephedrine and Pseudoephedrine Ephedrine and pseudoephedrine are List I chemicals. Listed chemicals that are classified as List I chemicals are important to the manufacture of controlled substances. Chemical mixtures containing both these List I chemicals include dietary and nutritional supplements. Prior to FDA's 2004 Final Rule, dietary and nutritional supplements containing both of these chemicals were readily available in the U.S., commonly sold to the public in drug and grocery stores, health and nutrition stores, and through direct marketing campaigns. These dietary and nutritional supplements contained ephedra plant material, or extracts from the ephedra plant. If these dietary and nutritional supplements met certain criteria under the FFD&CA, they were not recognized as drugs under the FFD&CA, but nonetheless were considered to be chemical mixtures governed by DEA law and regulations. In contrast, over-the-counter
(OTC)and prescription drug products containing these listed chemicals are not considered chemical mixtures (as long as they are in final FDA approved labeled package form) and instead are specifically addressed in 21 U.S.C. 802(39)(A)(iv) and
(v)as amended by CMEA. Also see 21 CFR 1300.02(b)(28)(i). Initial Chemical Mixture Controls Prior to the Domestic Chemical Diversion Control Act of 1993 (DCDCA), enacted in April of 1994, transactions involving all chemical mixtures (including dietary supplements) were exempt from recordkeeping, registration and other chemical regulatory control requirements of the CSA. The DCDCA amended the CSA (21 U.S.C. 802(39)(A)(v)) to limit the application of the above stated exemption and provided the Attorney General with the authority to exempt a chemical mixture containing a listed chemical if it is “formulated in such a way that it cannot be easily used in the illicit production of a controlled substance” and “the listed chemical or chemicals contained in the mixture cannot be readily recovered.” As such, only those chemical mixtures meeting these criteria would be exempted from control. Until regulations which delineated criteria and procedures for exempting specific chemical mixtures were finalized, as a practical interpretation of the law, DEA treated all chemical mixtures, including dietary and nutritional supplements, as being exempt from the chemical regulatory requirements of the CSA. (Note that OTC and prescription drug products are not considered chemical mixtures and are addressed separately under 21 U.S.C. 802(39)(A)(iv)). Unless exempted pursuant to law and regulations, the requirements for chemical mixtures included registration for certain handlers of List I chemicals, recordkeeping, reporting and security. Concern Regarding Chemical Mixtures Some chemical mixtures can be and have been used by traffickers in the illicit manufacture of controlled substances. This exemption provided traffickers with an unregulated source for obtaining these chemicals. To address these problems, the DCDCA amended the exemption to provide that only those chemical mixtures specified by regulation would be exempt from the definition of “regulated transaction.” Regulations regarding the exemption of chemical mixtures were initially proposed by DEA on October 13, 1994 (59 FR 51888). In response to industry concerns, the proposed regulations were withdrawn on December 9, 1994 (59 FR 63738). After consulting with the private sector and carefully considering industry and other concerns, new regulations regarding chemical mixtures were proposed on September 16, 1998 (63 FR 49506). The comment period, which was twice extended, closed on April 16, 1999. There are thousands of chemical mixtures in legitimate commerce, the majority of which are not useful to the illicit laboratory operator. The NPRM proposed criteria for the determination of whether a chemical mixture would be automatically exempt from CSA regulatory controls. Additionally, the NPRM defined an application process by which manufacturers may apply for an exemption for chemical mixtures that do not qualify for automatic exemption. The DEA proposed that each chemical be assigned a concentration limit that, if found at or below the limit, will cause the mixture to be treated as exempt from specific provisions of the CSA. This quantitative approach to identifying regulated mixtures was considered necessary due to the complexity of chemical-based commodities and the huge variety of products. These criteria were expected to exempt the vast majority of chemical mixtures containing listed chemicals from regulatory control. The NPRM included the proposed creation of a “Table of Concentration Limits,” in 21 CFR 1310.12. This table lists the concentration limits for each listed chemical. In recognition that not all mixtures that qualify for exemption can be identified by concentration or category, the DEA also proposed an application process to exempt additional mixtures which are not likely to be diverted for use in the illicit production of controlled substances. DEA originally proposed a concentration limit of two percent for chemical mixtures containing ephedrine and/or pseudoephedrine. However, based on the comments received from the NPRM (63 FR 49506, Sept. 16, 1998), DEA determined that a five percent concentration limit would be more appropriate. On May 1, 2003, DEA published a Final Rule (68 FR 23195) which established a concentration limit of five percent for chemical mixtures which contain ephedrine and/or pseudoephedrine. If the concentration of the total ephedrine and/or pseudoephedrine was at or below the five percent limit in a chemical mixture, the mixture was automatically exempted from the registration, reporting, recordkeeping and security requirements of the CSA. That Final Rule primarily addressed those chemicals encountered in dietary and nutritional supplements. The May 1, 2003, Final Rule also established an exemption for the category of products consisting of unaltered harvested plant material in 21 CFR 1310.12(d)(1). Finally, that rule provided for a process whereby a manufacturer of a product which would otherwise be subject to regulation may request an exemption for that specific product. This process allows chemical mixtures not automatically exempt by the concentration limit to be considered for exempt status under the CSA. Recent FDA Action Pertaining to Dietary Supplements Containing Ephedrine Alkaloids In 2004, FDA issued a Final Rule declaring dietary supplements containing ephedrine alkaloids “adulterated” under the FFD&C Act (69 FR 6787, February 11, 2004). FDA issued this rule after concluding that these products present an unreasonable risk of illness or injury. FDA's Final Rule prohibits the sale of these products and FDA has been seizing dietary supplements containing ephedrine alkaloids since the Final Rule became effective in April 2004. The FDA Final Rule addressed the marketing of dietary supplements containing ephedrine alkaloids; it did not address the importation, exportation, manufacture or distribution of ephedrine and/or pseudoephedrine chemical mixtures with concentration limits at or below five percent, if the chemical mixture is not being marketed as a dietary supplement containing ephedrine alkaloids. DEA notes that there yet may be legitimate uses for such mixtures. As there yet may be legitimate uses for chemical mixtures with concentration limits at or below 5 percent, the importation, exportation, manufacture, and distribution of these chemical mixtures (for purposes other than use in dietary supplements containing ephedrine alkaloids) are not prohibited by either FDA's ban regarding the marketing of such dietary supplements or by DEA law and regulations. In spite of FDA's ban, and corresponding reduction in legitimate need for these chemical mixtures, DEA has seen a significant increase in the number of import requests for ephedra, sparking a concern that these chemical mixtures are being diverted for use in the illicit manufacture of methamphetamine. Combat Methamphetamine Epidemic Act of 2005
(CMEA)On March 9, 2006, the President signed the USA PATRIOT Improvement and Reauthorization Act of 2005 which included the Combat Methamphetamine Epidemic Act of 2005
(CMEA)(Title VII of Pub. L. 109-177). The CMEA placed additional controls on ephedrine and pseudoephedrine and tasked DEA with limiting the domestic production and importation of ephedrine and pseudoephedrine materials to quantities necessary for medical, scientific and other legitimate purposes (21 U.S.C. 826 and 952(a)(1) as amended). The CMEA imposed new requirements regarding the retail sale of scheduled listed chemical products (products containing ephedrine, pseudoephedrine, or phenylpropanolamine, that may be marketed or distributed lawfully in the United States under the FFD&CA as nonprescription products). In a separate rulemaking, “Retail Sales of Scheduled Listed Chemical Products; Self-Certification of Regulated Sellers of Scheduled Listed Chemical Products” [Docket No. DEA-291, RIN 1117-AB05] (71 FR 56008, September 26, 2006; corrected at 71 FR 60609, October 13, 2006), DEA promulgated regulations implementing these provisions. The CMEA also subjects material containing ephedrine, pseudoephedrine and phenylpropanolamine to manufacturing and import restrictions. Specifically, the CMEA requires that importers of all listed chemicals provide DEA with information regarding the transferee, ( *i.e.* , the downstream customer) of the chemical, as well as information regarding the quantity of the chemical to be transferred. Importers are further required to provide DEA with a return declaration regarding each import after the transaction is completed (CMEA section 716, 21 U.S.C. 971(d) and (g), as amended). In a separate rulemaking, “Implementation of the Combat Methamphetamine Epidemic Act of 2005; Notice of Transfers Following Importation or Exportation” [Docket No. DEA-292, RIN 1117-AB06] (72 FR 17401, April 9, 2007; Temporary Stay of Certain Provisions 72 FR 28601, May 22, 2007), DEA promulgated regulations implementing these provisions. Further, the CMEA requires that the notice of importation (DEA Form 486) for ephedrine, pseudoephedrine, and phenylpropanolamine “shall include all information known to the importer on the chain of distribution of such chemical from the manufacturer to the importer.” (CMEA section 721, 21 U.S.C. 971(h) as amended). In a separate rulemaking, “Information of Foreign Chain of Distribution for Certain List I Chemicals” [Docket No. DEA-295, RIN 1117-AB07], DEA is promulgating regulations to implement this provision. Finally, the CMEA requires DEA to establish import and production quotas for ephedrine, pseudoephedrine, and phenylpropanolamine (CMEA sections 713 and 715, 21 U.S.C. 826 and 952 as amended). In a separate rulemaking, “Import and Production Quotas for Certain List I Chemicals” [Docket No. DEA-293, RIN 1117-AB08] (72 FR 37439, July 10, 2007) DEA promulgated regulations to implement these provisions. DEA is removing the exemption for five percent ephedrine and/or pseudoephedrine, in part, to fulfill the Congressional mandate of restricting such material to quantities necessary for medical, scientific, and other legitimate purposes (21 U.S.C. 826 and 952(a)(1) as amended). Without removing the exemption for these products, DEA would be unable to effectively limit the importation of ephedrine and pseudoephedrine, as required by the CMEA. Present Concerns: Use at Illicit Laboratories DEA is also authorized to remove an exemption for particular exempt chemical mixtures if it finds evidence of diversion pursuant to 21 CFR 1310.12(e). This regulation provides that should DEA find such evidence, it can “issue, and publish in the **Federal Register** , notification of the removal of an exemption.” Interested parties are invited to file written comments or objections to the order within 60 days of the date of publication. If any comment or objection raises “significant issues regarding any finding of fact or conclusion of law upon which the order is based, [DEA] shall immediately suspend the effectiveness of the order” and reconsider the application for exemption in light of the comments received. At most methamphetamine laboratories seized in the U.S., the precursor material was obtained via the diversion of OTC ephedrine or pseudoephedrine products marketed in tablet and capsule form. While the vast majority of products seized at illicit methamphetamine laboratories were OTC drug products, ephedra and ma huang extracts containing ephedrine, N-methylephedrine, N-methylpseudoephedrine, norpseudoephedrine, phenylpropanolamine, and pseudoephedrine, and dietary supplement products (containing ephedra and ma huang extracts) have been seized. At this time, the frequency with which these dietary supplement products and extracts are encountered is small. From 1998 through 2005, DEA has documented 20 methamphetamine laboratories where ephedra materials have been seized. The source of precursor chemicals in a seized clandestine laboratory is often not evident, so it is likely that the number of seized laboratories that used such mixtures is actually greater. Ephedra, therefore, can and is being diverted for use as a precursor material for the illicit production of methamphetamine. Were DEA not to regulate chemical mixtures containing ephedrine and/or pseudoephedrine at or below the current five percent concentration limit, DEA is concerned that these products would be more widely diverted for illicit production of methamphetamine, particularly as traffickers look for easily-obtainable product due to the new retail sales, quota and import restrictions imposed by CMEA. DEA Concerns Regarding Recent Importations Recently DEA has seen an increasing number of requests for importation of large shipments of ephedra material in concentrations below the five percent ephedrine and pseudoephedrine exemption limit. Traditionally, such ephedra extract material has always been between 6-8 percent ephedrine and/or pseudoephedrine. As noted above, DEA has seen chemical mixtures with concentration limits of ephedrine and/or pseudoephedrine at or below five percent in clandestine methamphetamine laboratories. Subsequent to implementing regulations which allowed an exemption for below five percent material, DEA has witnessed increased ability of clandestine laboratory operators to extract ephedrine and pseudoephedrine from various bulk materials (including low concentration mixtures). These extraction procedures are shared via the Internet. While these mixtures may contain low concentrations of ephedrine and/or pseudoephedrine, they can be a ready source of supply for methamphetamine traffickers. Therefore, due to the existing clandestine methamphetamine laboratory problem and the illicit use of extracts and dietary supplements (containing ephedrine and related List I chemicals) as precursor material for the clandestine production of methamphetamine, and the new limitations imposed by the CMEA, DEA is removing the exemption for chemical mixtures having a total concentration of less than (or equal to) five percent ephedrine or pseudoephedrine and is removing the exemption for unaltered ephedra plant material. Action Taken in This Interim Rule This Interim Rule announces the removal of the exemption for chemical mixtures having a total concentration of ephedrine and/or pseudoephedrine of five percent (or less). By removing these exemptions, all chemical mixtures containing ephedrine and/or pseudoephedrine will be regulated chemical mixtures subject to control under the Controlled Substances Act, including registration, recordkeeping, reporting, and security controls. This action will be effective August 24, 2007. This rulemaking also removes the exemption for the category of products consisting of harvested plant material which is specified in 21 CFR 1310.12(d)(1). Harvested plant material ( *i.e.* , ephedra) that contains ephedrine, N-methylephedrine, N-methylpseudoephedrine, norpseudoephedrine, phenylpropanolamine, and/or pseudoephedrine, meeting the definition of chemical mixture, shall no longer be exempt from CSA provisions, even when the plant material is unaltered from its natural state. II. Provisions Specifically Applying to Regulated Chemical Mixtures Containing These List I Chemicals Effective August 24, 2007, any chemical mixture that contains ephedrine or pseudoephedrine will be treated as a List I chemical. Transactions that meet or exceed the cumulative monthly threshold for the listed chemical, set forth at 21 CFR 1310.04, shall be regulated transactions. Persons interested in handling a regulated mixture must comply with the following: *Registration.* Any person who manufactures, distributes, imports or exports a regulated mixture, or proposes to engage in such activities, with respect to a regulated mixture containing a List I chemical, shall obtain a registration pursuant to the CSA (21 U.S.C. 822). Regulations describing registration for List I chemical handlers are set forth in 21 CFR part 1309. Separate registration is required for manufacture, distribution, importing, and exporting. A separate registration is required for each principal place of business at one general physical location where List I chemicals are manufactured, distributed, imported, or exported by a person (21 CFR 1309.23). Effective August 24, 2007, any person manufacturing, distributing, importing, or exporting any amount of a regulated mixture will become subject to the registration requirement under the CSA. DEA recognizes, however, that it is not possible for persons who are subject to the registration requirement to immediately complete and submit an application for registration and for DEA to immediately issue registrations for those activities. Therefore, in order to allow continued legitimate commerce in regulated mixtures, DEA is establishing in 21 CFR 1310.09 a temporary exemption from the registration requirement for persons desiring to engage in activities with regulated mixtures, provided that DEA receives a properly completed application for registration on or before August 24, 2007. The temporary exemption for such persons will remain in effect until DEA takes final action on their application for registration. The temporary exemption applies solely to the registration requirement; all other chemical control requirements, including recordkeeping and reporting, are effective on August 24, 2007. Therefore, all transactions of chemical mixtures containing ephedrine or pseudoephedrine will be regulated, if at or above threshold, while an application for registration or exemption is pending. This is necessary because not regulating these transactions could result in increased diversion of chemicals desirable to drug traffickers. Additionally, the temporary exemption does not suspend applicable federal criminal laws relating to the regulated mixture, nor does it supersede state or local laws or regulations. All handlers of a regulated mixture must comply with applicable state and local requirements in addition to the CSA regulatory controls. *Records and Reports.* The CSA (21 U.S.C. 830) requires certain records to be kept and reports to be made involving listed chemicals. Regulations describing recordkeeping and reporting requirements are set forth in 21 CFR Part 1310. A record must be made and maintained for two years after the date of a regulated transaction involving a List I chemical. Only a distribution, receipt, sale, importation, exportation, brokerage or trade of a regulated mixture above the established threshold is a regulated transaction (21 CFR 1300.02(b)(28)). Each regulated bulk manufacturer of a regulated mixture shall submit manufacturing, inventory, and use data on an annual basis (21 CFR 1310.05(d)). Bulk manufacturers producing the mixture solely for internal consumption, e.g. formulating a nonregulated mixture, are not required to submit this information. Existing standard industry reports containing the required information are acceptable, provided the information is readily retrievable from the report. 21 CFR 1310.05 requires that each regulated person shall report to DEA any regulated transaction involving an extraordinary quantity, an uncommon method of payment or delivery, or any other circumstance that causes the regulated person to believe that the listed chemical will be used in violation of the CSA. Section 1310.03(c) requires that regulated persons who engage in a transaction with a nonregulated person or who engage in an export transaction that involves ephedrine or pseudoephedrine, including drug products containing these chemicals, and uses or attempts to use the Postal Service or any private or commercial carrier must file monthly reports of each such transaction. *Imports/Exports.* All imports/exports and brokered transactions of regulated mixtures containing ephedrine and/or pseudoephedrine shall comply with the CSA (21 U.S.C. 952, 957 and 971). Regulations for importation and exportation of List I chemicals are described in 21 CFR part 1313. Separate registration is necessary for each activity (21 CFR 1309.22). *Security.* Regulated persons must provide effective controls and procedures to guard against theft and diversion of regulated mixtures. Regulated persons must store the regulated mixtures in containers sealed so that tampering will be evident; if the mixture cannot be stored in a sealed container, access to the chemicals must be controlled (21 CFR 1309.71). *Administrative Inspection.* Places, including factories, warehouses, or other establishments and conveyances, where regulated persons may lawfully hold, manufacture, or distribute, dispense, administer, or otherwise dispose of a regulated mixture or where records relating to those activities are maintained, are controlled premises as defined in 21 CFR 1316.02(c). The CSA (21 U.S.C. 880) allows for administrative inspections of these controlled premises as provided in 21 CFR Part 1316 Subpart A. Regulatory Certifications Administrative Procedure Act The Administrative Procedure Act
(APA)generally requires that agencies, prior to issuing a new rule, publish a notice of proposed rulemaking in the **Federal Register** . The APA also provides, however, that agencies may be excepted from this requirement when “the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B). With publication of this interim rule, DEA is invoking this “good cause” exception to the APA's notice requirement based on the combination of several extraordinary factors. Section 713 of the CMEA (21 U.S.C. 826 as amended) requires the establishment of production quotas for the List I chemicals ephedrine, pseudoephedrine, and phenylpropanolamine. DEA implemented these requirements in a separate rulemaking, “Import and Production Quotas for Certain List I Chemicals” [Docket No. DEA-293, RIN 1117-AB08] (72 FR 37439, July 10, 2007). DEA cannot establish such quotas if certain products containing these List I chemicals are not regulated. To not regulate these products while at the same time establishing production quotas would create a loophole which traffickers could exploit domestically. CMEA also mandates that imports of ephedrine, pseudoephedrine, and phenylpropanolamine are prohibited except for such quantities as the Attorney General (DEA by delegation) finds necessary to provide for medical, scientific, or other legitimate purposes (CMEA section 715, 21 U.S.C. 952 as amended). DEA is further required to establish import quotas for these three List I chemicals. In order for DEA to establish quotas and meet its obligation to prohibit imports except those necessary to provide for a medical, scientific, or other legitimate purpose, as required by the CMEA, DEA must exercise regulatory control over chemical mixtures containing pseudoephedrine and ephedrine. To exercise this control, DEA must eliminate the exemption for chemical mixtures containing these List I chemicals. DEA is concerned about the increasing number of requests for importation of below-five percent ephedrine or pseudoephedrine material. After the recent FDA action which bans dietary supplements containing such material, DEA has not been able to determine the legitimate need for importation of such material. Therefore, in an effort to eliminate the undocumented importation and domestic distribution of such material, and to comply with all of the new requirements imposed by the CMEA discussed above, DEA is removing these exemptions. As has been discussed previously in this rulemaking, DEA has seized chemical mixtures containing ephedrine and/or pseudoephedrine with concentrations of less than five percent at 20 domestic clandestine laboratories over the past several years. The source of precursor chemicals in a seized clandestine laboratory is often not evident, so it is likely that the number of seized laboratories that used such mixtures is actually greater. Further, the CMEA specifically prohibits all importation of ephedrine, pseudoephedrine, and phenylpropanolamine except those quantities which the Attorney General finds to be necessary for medical, scientific, and other legitimate purposes. These seizures, coupled with the new requirements limiting importation of ephedrine, pseudoephedrine, and phenylpropanolamine, as well as the establishment of production and import quotas for these three List I chemicals, necessitate that DEA remove the concentration limit for these previously exempt chemical mixtures. Engaging in traditional notice and comment rulemaking would prevent DEA from complying with the mandates of CMEA to limit the importation and domestic production of these materials. Were DEA not to regulate chemical mixtures containing ephedrine and/or pseudoephedrine at or below the current five percent concentration limit, DEA is concerned that these products would be more widely diverted for illicit production of methamphetamine, particularly with the new quota and import restrictions imposed by CMEA. Accordingly, DEA finds that it is impracticable to conduct notice and comment rulemaking regarding the removal of the exemption for chemical mixtures with concentration limits at or below the current five percent limit. If DEA did not act in this manner, traffickers would have ready access to chemical mixtures which DEA has demonstrated are being used currently to illicitly manufacture methamphetamine. Allowing such illicit manufacture to continue during the pendancy of rulemaking would be contrary to the public interest and the intent of the Combat Methamphetamine Epidemic Act of 2005. The broad scope of the new law, as well as the expedited effective dates, is a clear reflection of Congress' concern about the nation's growing methamphetamine epidemic and its desire to act quickly to prevent further illicit use of these chemicals. In light of these factors, DEA finds that “good cause” exists to issue this interim rule without engaging in traditional notice and comment rulemaking. In so doing, DEA recognizes that exceptions to the APA's notice and comment procedures are to be “narrowly construed and only reluctantly countenanced.” *Am. Fed'n of Gov't Employees* v. *Block,* 655 F2d 1153, 1156 (D.C. Cir. 1981) (quoting New Jersey Dep't of Envt. Prot. v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980)). Based on the totality of the circumstances associated with the CMEA, DEA finds that invocation of the “good cause” exception is justified. Further, the APA also provides that, while agencies are generally required to publish final rules at least 30 days before they become effective, they may be exempt from this requirement as well “for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). As discussed previously, DEA has recently seen a significant increase in the number of requests for importation of large quantities of these chemical mixtures. After the recent FDA action which bans dietary supplements containing such material, DEA has not been able to determine the legitimate need for importation of such material. DEA is concerned about the potential illicit use of such material for clandestine methamphetamine manufacture, particularly as traffickers look for easily-obtainable product due to the retail sales limits recently imposed by the CMEA. Delaying the effective date of this rule could provide a significant loophole for domestic illicit methamphetamine manufacturers to take advantage of for their illegal activities. Therefore, DEA finds good cause not to delay the effective date of this rule. Regulatory Flexibility Act The Deputy Administrator hereby certifies that this rulemaking has been drafted in accordance with the provisions of the Regulatory Flexibility Act
(RFA)(5 U.S.C. 605(b)). The
(RFA)applies to rules that are subject to notice and comment. As explained above, DEA has determined that public notice and comment are not necessary. Consequently, the RFA does not apply. DEA notes, however, that as explained in the discussion under Executive Order 12866, the costs of this rule are low, requiring only registration, maintenance of records, reports on unusual transactions, thefts or losses, and mail order transactions, and security. Other than the registration fee and the reports, these requirements can generally be met by standard business practices. DEA has determined that dietary supplements containing ephedrine alkaloids, including bulk material used to formulate these supplements, are the principal chemical mixtures that contain ephedrine and/or pseudoephedrine. Dietary supplements containing such ephedrine alkaloids have been banned by FDA. Due to
(1)The CMEA mandate that DEA limit the domestic production and importation of materials containing ephedrine and pseudoephedrine to quantities necessary for medical, scientific and other legitimate purposes;
(2)the elimination of the previous lawful status of such products as dietary supplements; and
(3)the potential illicit use of such products as precursor material for illicit production of methamphetamine, DEA is removing the exemption for low concentration material, including harvested plant material. This industry is comprised mainly of small businesses, as defined by U.S. Small Business Administration
(SBA)regulations (13 CFR part 121). However, the lawful marketing of dietary supplements containing ephedrine alkaloids has been banned by FDA. As such, this regulatory action is not expected to impact any manufacturers whose product can still lawfully be marketed under the FFD&CA. Persons who import or distribute chemical mixtures containing ephedrine and/or pseudoephedrine at or below the previously-exempt five percent concentration limit will be affected by this rule. This rule will not have a significant economic impact on those persons. However, DEA is seeking comment specifically regarding the potential impacts of this regulation. DEA is not prohibiting the importation, exportation, manufacture, or distribution of chemical mixtures containing ephedrine or pseudoephedrine in concentrations less than or equal to five percent. Rather, DEA is regulating the importation, exportation, manufacture, and distribution of these chemical mixtures by requiring persons who handle these chemical mixtures to register with DEA, maintain certain records common to business practice, and file certain reports, regarding these chemical mixtures. Chemical mixtures containing the List I chemicals ephedrine and pseudoephedrine will still be available for use. Executive Order 12866 This regulation has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. DEA has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has been reviewed by the Office of Management and Budget (OMB). The rule will impose relatively low costs on regulated persons. Other than the annual registration fee of $1,247, there are few costs associated with the rule. The records required on regulated transactions can be met with standard business records. Reports on unusual sales, thefts, and losses will be filed infrequently by any one person. Those who sell covered mixtures and deliver them to the end user through the mail or other delivery services will have to file a monthly report. The monthly report requires only the registrant's name and registration number, the purchaser's name and address, the shipping address (if different), the name and quantity of the chemical, and the date of shipment; all of this information is available from standard business and shipping records. These reports may be filed electronically. The security requirements do not exceed standard business practices for the protection of both the security and quality of these products. DEA has not determined the number of firms potentially affected by the rule, but does not expect it to be high. Executive Order 12988 This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988. Executive Order 13132 This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $120,000,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Paperwork Reduction Act The Drug Enforcement Administration is eliminating the current exemption for chemical mixtures with concentration limits of the List I chemicals ephedrine and/or pseudoephedrine of less than or equal to five percent. This means that all chemical mixtures containing the List I chemicals ephedrine and/or pseudoephedrine are regulated chemical mixtures, regardless of concentration limits. Due to this change in the regulations, all persons who import, export, manufacture, or distribute chemical mixtures containing these two List I chemicals will be required to register with DEA. They will also be required to file reports regarding certain transactions, should certain criteria be met. DEA does, however, provide a mechanism whereby a person may seek an exemption from these regulatory requirements for a specific chemical mixture, if DEA determines that such a chemical mixture cannot be used by traffickers to manufacture controlled substances illicitly. DEA notes that the lawful marketing of dietary supplements containing this material has been banned by FDA. As such, this regulatory action is expected to impact no manufacturers, whose product can still lawfully be marketed under the FFD&CA. Therefore, as the impact of this regulation is minimal, DEA is making minor adjustments to the OMB information collections entitled “Application for Registration Under Domestic Chemical Diversion Control Act of 1993 and Renewal Application for Registration under Domestic Chemical Diversion Control Act of 1993” (OMB control number 1117-0031, DEA Form 510), “Report of Mail Order Transactions” (OMB control number 1117-0033), and “Import/Export Declaration for List I and List II Chemicals” (OMB control number 1117-0023). DEA is specifically seeking comment regarding the number of persons who may be affected by this regulation. Congressional Review Act This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 21 CFR Part 1310 Drug traffic control, Exports, Imports, List I and List II chemicals, Reporting and Recordkeeping requirements. For the reasons set out above, 21 CFR part 1310 is amended as follows: PART 1310—RECORDS AND REPORTS OF LISTED CHEMICALS AND CERTAIN MACHINES [AMENDED] 1. The authority citation for part 1310 continues to read as follows: Authority: 21 U.S.C. 802, 827(h), 830, 871(b), 890. 2. Section 1310.09 is amended by adding a new paragraph
(j)to read as follows: § 1310.09 Temporary exemption from registration.
(j)Each person required by section 302 of the Act (21 U.S.C. 822) to obtain a registration to manufacture, distribute, import, or export regulated chemical mixtures which contain ephedrine, and/or pseudoephedrine, pursuant to Sections 1310.12 and 1310.13, is temporarily exempted from the registration requirement, provided that DEA receives a properly completed application for registration or application for exemption on or before August 24, 2007. The exemption will remain in effect for each person who has made such application until the Administration has approved or denied that application. This exemption applies only to registration; all other chemical control requirements set forth in parts 1309, 1310, 1313, and 1315 of this chapter remain in full force and effect. Any person who manufactures, distributes, imports, or exports a chemical mixture whose application for exemption is subsequently denied by DEA must obtain a registration with DEA. A temporary exemption from the registration requirement will also be provided for these persons, provided that DEA receives a properly completed application for registration on or before 30 days following the date of official DEA notification that the application for exemption has not been approved. The temporary exemption for such persons will remain in effect until DEA takes final action on their registration application. 3. Section 1310.12 is amended as follows: A. By revising the Table of Concentration Limits in paragraph
(c)by revising the entries for “Ephedrine, its salts, optical isomers, and salts of optical isomers” and “Pseudoephedrine, its salts, optical isomers, and salts of optical isomers”; and B. By removing paragraph (d)(1) and redesignating paragraphs (d)(2) through (d)(5) as paragraphs (d)(1) through (d)(4) as follows: § 1310.12 Exempt chemical mixtures.
(c)* * * Table of Concentration Limits DEA chemical code number Concentration (percent) Special conditions List I Chemicals * * * * * * * Ephedrine, its salts, optical isomers, and salts of optical isomers 8113 Not exempt at any concentration Chemical mixtures containing any amount of ephedrine and/or pseudoephedrine, and their salts, optical isomers and salts of optical isomers are not exempt due to concentration, unless otherwise exempted. * * * * * * * Pseudoephedrine, its salts, optical isomers, and salts of optical isomers 8112 Not exempt at any concentration Chemical mixtures containing any amount of ephedrine and/or pseudoephedrine, and their salts, optical isomers and salts of optical isomers are not exempt due to concentration, unless otherwise exempted. * * * * * * * List II Chemicals * * * * * * * Dated: July 2, 2007. Michele M. Leonhart, Deputy Administrator. [FR Doc. E7-14295 Filed 7-24-07; 8:45 am] BILLING CODE 4410-09-P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 202 [Docket No. RM 2007-7] Technical Amendments to online registration of claims to copyright; corrections AGENCY: Copyright Office, Library of Congress ACTION: Interim Regulations for online registration; correction. SUMMARY: The Copyright Office published in the **Federal Register** on July 6, 2007, an interim regulation implementing an online copyright registration system. This document makes technical corrections to that interim regulation. DATES: Effective on July 25, 2007. FOR FURTHER INFORMATION CONTACT: Tanya Sandros, Acting General Counsel, or Nanette Petruzzelli, Special Legal Advisor to the Register for Reengineering, Copyright Office, Library of Congress, Washington, DC 20540. Telephone:
(202)707-8380. Telefax:
(202)707-8366. SUPPLEMENTARY INFORMATION: The Copyright Office published an interim regulation in the Federal Register on July 6, 2007, which, for the purpose of implementing an online registration system, amended its regulations governing the procedures by which the public submits, and the Office processes, copyright registrations and recordations. This document makes non-substantial corrections to errors contained in the interim regulations. List of Subjects in 37 CFR Part 202 Claims, Copyright, Registration requirements. In consideration of the foregoing, the Copyright Office corrects part 202 of 37 CFR by making the following correcting amendments: PART 202 -- REGISTRATION OF CLAIMS TO COPYRIGHT 1. The authority citation for part 202 continues to read as follows: Authority: 17 U.S.C. 702. 2. Amend § 202.3 as follows: a. By removing “(b)(3)” and adding “(b)(4)” in paragraph (b)(1)(iv); b. By removing “(b)(3) through (b)(8)” and adding “(b)(4) through (b)(10)” in paragraph (b)(4)(ii); c. By removing “(b)(7)” and adding “(b)(8)” in paragraph (b)(8)(ii); d. By removing “(b)(7)(i)(E)” and adding “(b)(8)(i)(E)” in paragraph (b)(8)(ii)(C); and e. By removing “(b)(9)(iv)” and adding “(b)(10)(iv)” in paragraph (b)(10)(vi); and f. By adding the footnote designation “6” after “and § 202.20.” in paragraph (c)(2); and by adding footnote 6 to read as follows: § 202.3 Registration of copyright. 6 In the case of applications for group registration of newspapers, contributions to periodicals, and newsletters, under paragraphs (b)(7), (b)(8), and (b)(9) of this section, the deposits shall comply with the deposits specified in the respective paragraphs, and the fees with those specified in § 201.3. § 202.20 [Amended] 3. Amend § 202.20 as follows: a. By removing “(b)(2)(vi)” and adding “(b)(2)(vii)” in paragraph (b)(2)(i); and b. By removing “(b)(2)(iii) through (vi)” and adding “(b)(2)(iv) through (vii)” in paragraph (b)(2)(ii). Dated: July 20, 2007 Maria Pallante, Deputy General Counsel [FR Doc. E7-14372 Filed 7-24-07; 8:45 am] BILLING CODE 1410-33-S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0174; FRL-8445-6] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Attainment Determination, Redesignation of the Franklin County Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base-Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: EPA is approving a redesignation request and State Implementation Plan
(SIP)revisions submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the Franklin County nonattainment area (“Franklin County Area” or “Area”) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). In conjunction with its redesignation request, the PADEP submitted SIP revisions consisting of a maintenance plan for the Franklin County Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is approving the 8-hour maintenance plan. PADEP also submitted a 2002 base-year inventory for the Franklin County Area which EPA is approving. In addition, EPA is approving the adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the Franklin County Area maintenance plan for purposes of transportation conformity, and is approving those MVEBs. EPA is approving the redesignation request, and the maintenance plan, and the 2002 base-year emissions inventory as revisions to the Pennsylvania SIP in accordance with the requirements of the Clean Air Act (CAA). DATES: *Effective Date:* This final rule is effective on July 25, 2007 pursuant to the authority of 5 U.S.C. 553(d)(1). ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2007-0174. All documents in the docket are listed in the *http://www.regulations.gov* Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information
(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Christopher Cripps,
(215)814-2179, or by e-mail at *cripps.christopher@epa.gov.* SUPPLEMENTARY INFORMATION: I. Background On May 30, 2007 (72 FR 29914), EPA published a notice of proposed rulemaking
(NPR)for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's redesignation request, a SIP revision that establishes a maintenance plan for the Franklin County Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation, and a 2002 base-year emissions inventory. The formal SIP revisions were submitted by PADEP on December 14, 2006. Other specific requirements of Pennsylvania's redesignation request and SIP revision for the maintenance plan, and the rationale for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR. On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA,* 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in *South Coast Air Quality Management Dist.* v. *EPA,* Docket No. 04-1201, in response to several petitions for rehearing, the DC Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the Act as 8-hour nonattainment areas, the 8-hour attainment dates, and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:
(1)Nonattainment area nonattainment New Source Review
(NSR)requirements based on an area's 1-hour nonattainment classification;
(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; and
(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS. In addition the June 8 decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. For the reasons set forth in the May 30, 2007 (72 FR 29914) proposed rulemaking, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with the redesignation of the Franklin County Area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests. In the May 30, 2007 (72 FR 29914) proposed rulemaking, EPA proposed to find that the Franklin County Area had satisfied the requirements under the 1-hour standard whether the 1-hour standard was deemed to be reinstated or whether the Court's decision on the petition for rehearing was modified to require something less than compliance with all applicable 1-hour requirements. Because EPA proposed to find that the Franklin County Area satisfied the requirements under either scenario, EPA is proceeding to finalize the redesignation and to conclude that the Franklin County Area met the requirements under the 1-hour standard applicable for purposes of redesignation under the 8-hour standard. These include the provisions of EPA's anti-backsliding rules, as well as the additional anti-backsliding provisions identified by the court in its rulings. In its June 8, 2007 decision the Court limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore, EPA finds that the Franklin County Area has met the anti-backsliding requirements, see 40 CFR 51.900 *et seq.;* 70 FR 30592, 30604 (May 26, 2005), which apply by virtue of the Franklin County Area's classification for the 1-hour ozone NAAQS, as well as the four additional anti-backsliding provisions identified by the Court, or alternatively, that such requirements are not applicable for purposes of redesignation. In addition, with respect to the requirement for transportation conformity under the 1-hour standard, the Court in its June 8 decision clarified that for those areas with 1-hour motor vehicle emissions budgets, anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR Part 93. The court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. II. Final Actions EPA is approving the Commonwealth of Pennsylvania's redesignation request, maintenance plan, and the 2002 base-year emissions inventory because the requirements for approval have been satisfied. EPA has evaluated Pennsylvania's redesignation request that was submitted on December 14, 2006, and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the Franklin County Area has attained the 8-hour ozone standard. The final approval of this redesignation request will change the designation of the Franklin County Area from nonattainment to attainment for the 8-hour ozone standard. EPA is approving the maintenance plan for the Franklin County Area submitted on December 14, 2006 as a revision to the Pennsylvania SIP. EPA is also approving the MVEBs submitted by PADEP in conjunction with its redesignation request. In addition, EPA is approving the 2002 base-year emissions inventory submitted by PADEP on December 14, 2006 as a revision to the Pennsylvania SIP. In this final rulemaking, EPA is notifying the public that we have found that the MVEBs for nitrogen oxides (NO <sup>X</sup> ) and volatile organic compounds
(VOCs)in the Franklin County Area for the 8-hour ozone maintenance plan are adequate and approved for conformity purposes. As a result of our finding, the Franklin County Area must use the MVEBs from the submitted 8-hour ozone maintenance plan for future conformity determinations. The adequate and approved MVEBs are provided in the following table: Adequate and Approved Motor Vehicle Emissions Budgets in Tons per Day (TPD)—Rounded Upward to One Decimal Place Budget year NO <sup>X</sup> VOC 2009 12.7 7.3 2018 6.7 5.1 With respect to the 1-hour ozone NAAQS, EPA has determined pursuant to section 181(b)(2) of the CAA that the Franklin County Area has attained the 1-hour NAAQS for ozone. On the basis of this determination, EPA is also determining that the following nonattainment area requirements of part D to Title 1 of the CAA are not applicable to the Franklin County Area for so long as it continues to attain the 1-hour NAAQS for ozone: The requirements of section 172(c)(1) concerning the submission of the ozone attainment demonstration and reasonably available control measure requirements, the requirements of section 172(c)(2) concerning reasonable further progress (RFP), and the requirements of section 172(c)(9) concerning contingency measures for RFP or attainment. If a violation of the 1-hour ozone NAAQS is monitored in the Franklin County 1-hour ozone nonattainment area, these determinations shall no longer apply. III. Statutory and Executive Order Reviews A. General Requirements Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(e) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Because this action affects the status of a geographical area, does not impose any new requirements on sources, or allows the state to avoid adopting or implementing other requirements, this action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . This rule is not a “major rule” as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 24, 2007. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, approving the redesignation of the Franklin County Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base-year emissions inventory, and the MVEBs identified in the maintenance plan, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: July 18, 2007. James W. Newsom, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart NN—Pennsylvania 2. In § 52.2020, the table in paragraph (e)(1) is amended by adding an entry for the 8-hour Ozone Maintenance Plan and the 2002 Base Year Emissions Inventory for the Franklin County, Pennsylvania Area at the end of the table to read as follows: § 52.2020 Identification of plan.
(e)* * *
(1)* * * Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation * * * * * * * 8-Hour Ozone Maintenance Plan and 2002 Base Year Emissions Inventory Franklin County Area (Franklin County) 9/20/06, 11/08/06 7/25/07 [Insert page number where the document begins] 3. Section 52.2037 is amended by adding paragraph
(m)to read: § 52.2037 Control strategy plans for attainment and rate-of-progress: Ozone.
(m)Determination—EPA has determined that, as of July 25, 2007, the Franklin County ozone nonattainment area has attained the 1-hour ozone standard and that the following requirements of section 172(c)(2) of the Clean Air Act do not apply to this area for so long as the area does not monitor any violations of the 1-hour ozone standard of 40 CFR 50.9: the attainment demonstration and reasonably available control measure requirements of section 172(b)(1), the reasonable further progress requirement of section 172(b)(2), and the related contingency requirements of section 172(c)(9). If a violation of the 1-hour ozone NAAQS is monitored in the Franklin County 1-hour ozone nonattainment area, these determinations shall no longer apply. PART 81—[AMENDED] 4. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* 5. In § 81.339, the table entitled “Pennsylvania-Ozone (8-Hour Standard)” is amended by revising the entry for the Franklin County, PA Area to read as follows: § 81.339 Pennsylvania Pennsylvania—Ozone (8-Hour Standard) Designated area Designation a Date 1 Type Category/classification Date 1 Type * * * * * * * Franklin Co., PA: Franklin County July 25, 2007 Attainment * * * * * * * a Includes Indian County located in each county or area, except otherwise noted. 1 This date is June 15, 2004, unless otherwise noted. [FR Doc. 07-3631 Filed 7-24-07; 8:45 am]
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U.S. Code
28 references not yet in our index
  • 5 CFR 1820
  • Pub. L. 97-365
  • 96 Stat. 1749
  • Pub. L. 104-134
  • 14 CFR 71
  • 1 CFR 51
  • 18 CFR 40
  • 345 U.S. 295
  • 342 U.S. 246
  • 225 F.3d 667
  • 535 U.S. 1
  • 19 CFR 173
  • Pub. L. 108-429
  • 118 Stat. 2598
  • 21 CFR 1310
  • Pub. L. 100-690
  • Pub. L. 109-177
  • 21 CFR 1309
  • 21 CFR 1313
  • 21 CFR 1316
  • 626 F.2d 1038
  • 13 CFR 121
  • 37 CFR 202
  • 472 F.3d 882
  • 40 CFR 93
  • Pub. L. 104-4
  • 40 CFR 52
  • 40 CFR 81
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U.S.C.§ 3717
Stat.Public Law 104–133
SCOTUS345 U.S. 295
SCOTUS342 U.S. 246
F. App'x225 F.3d 667
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