E9-29907. Market-Based Rates For Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities; Notice of Request for Clarification

October 30, 2009.

Take notice that on March 9, 2009, as amended on October 28, 2009, the Compliance Working Group^[1] filed a request for clarification regarding which employees can be “shared” for purposes of compliance with the Commission's Affiliate Restrictions adopted under Order No. 697.^[2]

The Compliance Working Group states that the question presented arises because of an unintended inconsistency in the treatment of shared employees under the two major rulemakings—Order Nos. 697 and 717—that impose restrictions on employee interactions and communications. The Compliance Working Group states that Order No. 697 sought to ensure consistency between the two rules by holding that shared employees, for purposes of its Affiliate Restrictions, would be the same as later defined by the Standards of Conduct. It states that an inconsistency later arose because Order No. 717 ultimately revised the Standards of Conduct by eliminating the concept of shared employees altogether.^[3] The Compliance Working Group states that this disconnect has created a compliance conundrum that should be remedied.

The Compliance Working Group asks the Commission to interpret the Affiliate Restrictions to permit sharing of employees who are not “transmission function employees” or “marketing function employees”—the same sharing that is now permitted under the Standards of Conduct. The Compliance Working Group states that this interpretation is consistent with the purpose of Order Nos. 697 and 717, will facilitate compliance by regulated companies, and enhance enforcement by the Commission. It also states that, as was the case with Order No. 717, this interpretation would not eliminate the residual protection afforded by the rule against undue discrimination.

Any person desiring to comment in the above-referenced proceeding may file comments with the Commission on or before 5 p.m. Eastern time on November 30, 2009.

The Commission encourages electronic submission of comments in lieu of paper using the “eFiling” link at http://www.ferc.gov. Persons unable to file electronically should submit an original and 14 copies of comments to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.

This filing is accessible on-line at http://www.ferc.gov, using the “eLibrary” link and is available for review in the Commission's Public Reference Room in Washington, DC. There is an “eSubscription” link on the Web site that enables subscribers to receive e-mail notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please e-mail [e-mail], or call [phone] (toll free). For TTY, call [phone].

Kimberly D. Bose,

Secretary.

Footnotes

1.  The members of the Compliance Working Group taking part in the filing are: Allegheny Energy, Inc., American Electric Power Company, Inc., Cleco Corporation, Consumers Energy Company, Dominion Resources, Inc., Duke Energy Corporation, Edison International, El Paso Electric Company, Energy East Corp., Entergy Corporation, Exelon Corporation, FirstEnergy Corp., FPL Group, Inc., Pacific Gas and Electric Co., Progress Energy, Inc., Public Service Enterprise Group Inc., and Westar Energy, Inc.

2.  Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, Order No. 697, FERC Stats. & Regs. ¶ 31,252 (Order No. 697), clarified, 121 FERC ¶ 61,260 (2007), order on reh'g, Order No. 697-A, FERC Stats. & Regs. ¶ 31,268 (2008); clarified, 124 FERC ¶ 61,055 (2008), order on reh'g, Order No. 697-B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh'g, Order No. 697-C, FERC Stats. & Regs. ¶ 31,291 (2009).

3.  Standards of Conduct for Transmission Providers, Order No. 717, FERC Stats. Regs. ¶ 31,280 (2008), order on reh'g, Order No. 717-A, 129 FERC ¶ 61,043 (2009).