# Federal Register / Vol. 71, No. 144 / Thursday, July 27, 2006 / Rules and Regulations

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Federal Register / Vol. 71, No. 144 / Thursday, July 27, 2006 / Rules and Regulations

Commission Procedures During
Periods of Emergency Requiring
Activation of Continuity of Operations
Plan

requirements.1 The COOP Plan is
designed to ensure that the Commission
is able to quickly restore its ability to
perform essential functions should such
conditions occur.2 The rule temporarily
suspends filing requirements and
ensures that deadlines for Commission
actions that fall during the period the
plan is in operation are met, thereby
providing continuity in the conduct of
the Commission’s business and
certainty to parties with business before
the Commission.3

Issued July 20, 2006.

II. Discussion

AGENCY: Federal Energy Regulatory

A. Acceptance and Suspension of
Pending Filings Requiring Commission
Action by a Date Certain

DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 376
[Docket No. RM06–19–000, Order No. 680]

Commission, DOE.
ACTION: Final rule.

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SUMMARY: In this rule the Commission
establishes procedures with regard to
filing and other requirements if the
Commission is required to implement
its Continuity of Operations Plan in
response to an emergency situation that
disrupts communications to or from the
Commission’s headquarters or which
otherwise impairs headquarters
operations. The rule temporarily
suspends filing requirements and
ensures that deadlines for Commission
actions that fall during the period the
plan is in operation are met, thereby
providing continuity in the conduct of
the Commission’s business and
certainty to parties with business before
the Commission.
EFFECTIVE DATE: The rule will become
effective July 20, 2006.
FOR FURTHER INFORMATION CONTACT: John
Clements, Office of the General Counsel,
Federal Energy Regulatory Commission,
Room 101–57, 888 First St., NE.,
Washington, DC 20426, 202–502–8070.
SUPPLEMENTARY INFORMATION: Before
Commissioners: Joseph T. Kelliher,
Chairman; Nora Mead Brownell, and
Suedeen G. Kelly.

2. The rule provides for the
acceptance and suspension, during
emergencies that disrupt normal
operations and communications and
require activation of the COOP Plan,4 of
pending filings upon which the
Commission would be required to act by
a date certain during the period of
emergency. The effective date(s) of such
filings shall be the date(s) requested, to
be effective subject to refund and further
order of the Commission. These include
filings made pursuant to:
• Section 4 of the Natural Gas Act;
• Section 205 of the Federal Power
Act; and
• Section 6(3) of the Interstate
Commerce Act.
B. Electric Reliability Organization
Penalties

I. Introduction

3. If the date on which a penalty
imposed by an Electric Reliability
Organization pursuant to FPA § 215
would take effect falls during a period
when the COOP Plan is activated,
review of such penalty by the
Commission will be deemed to be
initiated and the penalty shall be stayed
pending further action by the
Commission.

1. The Federal Energy Regulatory
Commission (Commission) is amending
its regulations to modify certain filing
requirements and establish procedures
to be effective during emergencies
affecting the Commission that require it
to implement its Continuity of
Operations Plan (COOP Plan). The
COOP Plan was developed to address
emergency conditions lasting up to 30
days during which Commission
headquarters operations may be
temporarily disrupted or
communications may be temporarily
unavailable, either of which may
prevent the public or the Commission
from meeting regulatory or statutory

1 The emergency conditions which might trigger
activation of the COOP Plan are not identical to
‘‘emergency conditions’’ as heretofore defined in 18
CFR 376.201. One of the revisions discussed below
modifies that section to cover the emergency
conditions that would trigger activation of the
COOP Plan.
2 More information concerning the COOP Plan
can be found on the Commission’s Web site at
www.ferc.gov/coop.asp.
3 Activation of the COOP Plan affects
communications with headquarters only, and does
not affect communications required to be made
directly to the Commission’s Regional Offices.
4 Not all disruptions of communications with the
Commission’s headquarters will require activation
of the COOP Plan and the triggering of these
regulations. For instance, a brief outage of eLibrary
that prevents entities from making electronic filings
would not trigger activation of the COOP Plan.

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C. Consistency of State Action With
Reliability Standard
4. If the date by which a Commission
determination under FPA § 215 as to
whether a State action is inconsistent
with a reliability standard is required to
be made falls during a period when the
COOP Plan is activated, the
effectiveness of the State action will be
deemed to be stayed pending further
action by the Commission.
D. Tolling of Time Periods for
Commission Action
5. The rule also tolls for purposes of
further consideration the time periods
for certain Commission actions that will
be required during the emergency.
These include the:
• 60-day period for acting on requests
for Exempt Wholesale Generator or
Foreign Utility Company status;
• 60-day period for acting on
interlocking directorate applications;
• 90-day period for acting on requests
for certification of qualifying facility
status;
• 60-day period for acting on holding
company and transaction exemptions
and waivers;
• 180-day period for acting on public
utility and holding company
applications for dispositions,
considerations, or acquisitions;
• 150-day period for acting on
intrastate pipeline applications for
approval of proposed rates;
• Period ending 60 days prior to the
Electric Reliability Organization’s (ERO)
fiscal year for acting on the ERO’s
budget;
• 60-day period for acting on
notifications that a Reliability Standard
may conflict with a function, rule,
order, tariff, rate schedule or agreement;
• 60-day period for acting on
applications for review of a penalty
imposed by the ERO for violation of a
reliability standard;
• 45-day Protest period for protesting
Prior Notice Filings, and the 30-day
period for resolving and filing to
withdraw such Protests; 5
• 30-day period for acting on requests
for rehearing;
• Time periods prescribed in 18 CFR
385.714–715 for acting on interlocutory
appeals and certified questions.
E. Suspension of Certain Requirements
6. Disruptions to normal operations
and communications during an
5 The result of these suspensions is that no
facilities subject to the prior notice provisions of the
Commission’s blanket certificate regulations not
finally authorized prior to the activation of the
COOP Plan shall be constructed during its
activation in the absence of specific authorization
by the Commission.

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Federal Register / Vol. 71, No. 144 / Thursday, July 27, 2006 / Rules and Regulations

emergency that require activation of the
COOP Plan could make compliance
with some Commission statutes,
regulations, or orders difficult or
impossible. This rule suspends those
requirements during the emergency. The
affected regulatory requirements include
mandatory filings, submissions, and
notifications, as well as voluntary
notices, contacts, or reports to the
Commission. They include:
• Filings to comply with Commission
orders, including orders issued by
administrative law judges;
• Filings required to be made by a
date certain under the Commission’s
regulations or orders;
• Motions to intervene and protests,
and notices of intervention;
• Comments responding to proposed
rulemakings or technical conferences;
• Responses to data requests;
• Self-reports of violations;
• Responses to staff audit reports;
• Contacts with the Commission’s
Enforcement Hotline;
• Accounting filings required by the
Commission’s Uniform Systems of
Accounts; and
• Forms, reports, and submissions
required to be filed by a date certain.
7. The rule also grants certain relief
with respect to the Commission’s
Standards of Conduct for Transmission
Providers that are also affected by the
emergency affecting the Commission.
Specifically, such Transmission
Providers may, for 30 days, delay
compliance with the requirement of
§ 358.4(a)(2) of the regulations 6 to
report to the Commission each
emergency that resulted in any
deviation from the Standards of
Conduct within 24 hours of such
deviation. Unless the emergency
prevents the Transmission Provider
from posting information on the OASIS
or Internet Web site, the Transmission
Provider must comply with those
posting requirements. The 30-day
period may be extended as necessary.

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F. Intention Not To Act
8. The rule provides that, during the
emergency conditions that require
activation of the COOP Plan, the
Commission will not initiate an
enforcement action under § 210(h)(2) of
the Public Utility Regulatory Policies
Act of 1978.7 Applicants may, as a
consequence, bring their own
enforcement actions in the appropriate
courts.
6 18 CFR 358.4(a)(2).
7 16 U.S.C. 824a–3(h)(2).

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G. Suspension of Proceedings Before
Administrative Law Judges
9. The rule also suspends all hearings,
prehearing conferences, settlement
conferences, and meetings before
administrative law judges while the
COOP Plan is activated.
H. Delegations of Authority
10. This rulemaking also revises the
Commission’s rules regarding
emergency operations to ensure that
delegations of authority will remain
effective in the event the COOP Plan is
activated. The revisions clarify
§ 376.206 of the Commission’s
regulations to specify with more
particularity what persons will be
authorized to exercise delegated
authority in the event the officials to
whom delegations are made under Part
375 are unavailable. Section
376.204(b)(2) also is being revised to
update the list of officials designated to
act on behalf of the Commission in the
event of an emergency. Finally, the
definition of ‘‘emergency condition’’
contained in § 376.201 is being revised
to include specifically any condition
that necessitates activation of the COOP
Plan.
I. Related Matters
11. The COOP Plan includes
procedures to inform the public when
the COOP Plan is activated, when
alternate channels of communication
are established, when normal operations
and communications are resumed, and
the length of any grace period to comply
with requirements that were suspended
during the emergency. A press release
will be sent to major wire services,
industry press, and appropriate
metropolitan area radio stations
announcing that the Commission has
activated the COOP Plan. The
Commission’s alternative Web site
(http://www.fercalt.gov) will be
activated and a notice that the COOP
Plan has been activated will be
prominently displayed thereon. The
alternative Web site will act as a
resource for the press, industry, and
general public. An additional press
release will be sent to appropriate media
outlets when the COOP Plan is
deactivated and the Commission’s
headquarters constituted, and
appropriate modifications made to the
alternative Web site.
12. Finally, during periods when the
COOP is activated, the Commission will
continue to act on requests to ensure
continued construction of essential
natural gas facilities with sensitive
construction timelines, on
Commencement of Service requests, and

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on completion of dam safety work, in a
manner consistent with the
maintenance of environmental
protections. The Commission will
further ensure that its personnel are
available to respond to and address:
Plant accidents or reportable incidents
at LNG facilities; dam safety, public
safety, and security incidents at
jurisdictional hydropower projects; and
regional and interregional bulk power
systems incidents and emergencies,
including blackouts. Alternate channels
of communication will include
measures to ensure that these activities
can go forward unhindered.
Regulatory Flexibility Act Certification
13. The Regulatory Flexibility Act of
1980 (RFA) 8 generally requires a
description and analysis of final rules
that will have significant economic
impact on a substantial number of small
entities.9 The Commission is not
required to make such an analysis if a
rule would not have such an effect. This
Final Rule merely temporarily suspends
or waives certain filings and other
requirements. Therefore, this Final Rule
will not have a significant economic
impact on a substantial number of small
entities and no regulatory flexibility
analysis is required.
Information Collection Statement
14. Office of Management and Budget
(OMB) regulations require OMB to
approve certain information collection
requirements imposed by agency rule.10
This Final Rule contains no new
information collections. Therefore, OMB
review of this Final Rule is not required.
Environmental Analysis
15. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant adverse effect on the human
environment. Included in the exclusion
are rules that are clarifying, corrective,
or procedural or that do not
substantially change the effect of the
8 5 U.S.C. 601–12.
9 The RFA definition of ‘‘small entity’’ refers to
the definition provided in the Small Business Act,
which defines a ‘‘small business concern’’ as a
business which is independently owned and
operated and which is not dominant in its field of
operation. 15 U.S.C. 632. The Small Business Size
Standards component of the North American
Industry Classification System defines a small
electric utility as one that, including its affiliates,
is primarily engaged in the generation,
transmission, and/or distribution of electric energy
for sale and whose total electric output for the
preceding fiscal years did not exceed 4 million
MWh. 13 CFR 121.201.
10 5 CFR 1320.12.

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Federal Register / Vol. 71, No. 144 / Thursday, July 27, 2006 / Rules and Regulations
regulations being amended.11 This rule
is procedural in nature and therefore
falls under this exception; consequently,
no environmental consideration is
necessary.
Document Availability
16. 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 the
Commission’s Home Page (http://
www.ferc.gov) and in the Commission’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.
17. From the Commission’s Home
Page on the Internet, this information is
available in the 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 FERRIS, type the docket number
excluding the last three digits of this
document in the docket number field.
18. User assistance is available for
eLibrary and the Commission’s Web site
during normal business hours. For
assistance, please contact Online
Support at 1–866–208–3676 (e-mail at
FERCOnlineSupport@FERC.gov), or the
Public Reference Room at (202) 502–
8371, TTY 202–502–8659 (e-mail at
public.referenceroom@ferc.gov).
Effective Date and Congressional
Notification
19. These regulations are effective on
July 20, 2006. The provisions of 5 U.S.C.
801 regarding Congressional review of
Final Rules do not apply to this Final
Rule, because the rule concerns agency
procedure and practice and will not
substantially affect the rights of nonagency parties. The Commission finds
that notice and public procedure are
unnecessary because no new burden or
regulatory requirement is imposed on
regulated entities or the general public.
For the same reason, the Commission
finds good cause to waive the customary
30-day notice period before the effective
date of this Final Rule.

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List of Subjects in 18 CFR Part 376
Civil defense, Organization and
functions (Government agencies).
11 Regulations Implementing the National
Environmental Policy Act, Order No. 486, 52 FR
47897 (Dec. 17, 1987), FERC Stats. & Regs.
Regulations Preambles 1986–1990 ¶ 30,783 (1987).

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By the Commission.
Magalie R. Salas,
Secretary.
■ In consideration of the foregoing, the

Commission amends part 376, Chapter I,
Title 18, Code of Federal Regulations, as
follows:
PART 376—ORGANIZATION, MISSION,
AND FUNCTIONS; OPERATIONS
DURING EMERGENCY CONDITIONS
■ 1. The authority citation for part 376

continues to read as follows:
Authority: 5 U.S.C. 553; 42 U.S.C. 7101–
7352; E.O. 12009, 3 CFR 1978 Comp., p. 142.
■ 2. In § 376.201, paragraph (a)(3) is

revised and paragraph (a)(4) is added to
read as follows:
§ 376.201

Emergency condition defined.

*

*
*
*
*
(a) * * *
(3) At a time specified by the
authority of the President; or
(4) At such time that the
Commission’s Continuity of Operations
Plan is activated; and
*
*
*
*
*
■ 3. In § 376.204, paragraphs (b)(2)(ii),
(b)(2)(v), (b)(2)(vi), (b)(2)(viii), (b)(2)(ix)
and (b)(2)(x) are revised to read as
follows:
§ 376.204 Delegation of Commission’s
authority during emergency conditions.

*

*
*
*
*
(b) * * *
(2) * * *
(ii) Director of the Office of Energy
Markets and Reliability;
*
*
*
*
*
(v) Director of the Office of
Enforcement;
(vi) Deputy Directors, Office of Energy
Markets and Reliability, in order of
seniority;
*
*
*
*
*
(viii) Deputy General Counsels, in
order of seniority;
(ix) Associate General Counsels and
Solicitor, in order of seniority;
(x) Assistant Directors and Division
heads, Office of Energy Markets and
Reliability; Assistant Directors and
Division heads, Office of Energy
Projects; Assistant General Counsels;
and Assistant Directors and Division
heads, Office of Enforcement; in order of
seniority.
*
*
*
*
*
■ 4. Section 376.206 is revised to read
as follows:
§ 376.206 Delegation of functions of
certain Commission staff members.

When, by reason of emergency
conditions, the Secretary, Director of

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any Office or Division, or officer in
charge of a regional office, is not
available and capable of carrying out his
or her functions, such functions are
delegated to staff members designated
by the Chairman to perform such
functions. If no staff member so
designated is available and capable of
carrying out their functions, such
functions are delegated to the next
subordinate employee in the Office or
Division of the highest grade and
longest period of service in that grade.
If no subordinate employee of the Office
or Division is available and capable of
carrying out their functions, such
functions are delegated to the
Commission employee of the highest
grade and longest period of service in
that grade who is available and capable
of carrying out their functions.
■ 5. Section 376.209 is added to read as
follows:
§ 376.209 Procedures during periods of
emergency requiring activation of the
Continuity of Operations Plan.

(a)(1) The Commission’s Continuity of
Operations Plan is activated during
emergency conditions lasting up to 30
days during which Commission
headquarters operations may be
temporarily disrupted or
communications with the Commission’s
headquarters may be temporarily
unavailable, either of which may
prevent the public or the Commission
from meeting regulatory or statutory
requirements. The provisions of this
paragraph are effective upon activation
of the Plan. The Commission will notify
the public that the Plan has been
activated by sending a press release
announcing that fact to major wire
services, industry press, and appropriate
metropolitan area radio stations
announcing that the Commission has
activated the Plan. The Commission’s
alternative Web site (http://
www.fercalt.gov) will be activated and a
notice that the Plan has been activated
will be prominently displayed thereon.
The alternative Web site will act as a
resource for the press, industry, and
general public. An additional press
release will be sent to appropriate media
outlets when the Plan is deactivated and
the Commission’s headquarters
constituted, and appropriate
modifications made to the alternative
Web site.
(2) During periods when the
Continuity of Operations Plan is
activated, the Commission will continue
to act on requests to ensure continued
construction of essential natural gas
facilities with sensitive construction
timelines, on Commencement of Service
requests, and on completion of dam

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Federal Register / Vol. 71, No. 144 / Thursday, July 27, 2006 / Rules and Regulations

safety work, in a manner consistent with
the maintenance of environmental
protections. The Commission will
further ensure that its personnel are
available to respond to plant accidents
or reportable incidents at LNG facilities,
and address dam safety, public safety,
and security incidents at jurisdictional
hydropower projects. Alternate
channels of communication will include
measures to ensure that these activities
can go forward unhindered.
(b) Standards of conduct for
transmission service providers. During
periods when the Commission’s
Continuity of Operations Plan is
activated, a Transmission Provider
affected by the same emergency
affecting the Commission may, for 30
days, delay compliance with the
requirement to report to the
Commission each emergency that
resulted in any deviation from the
standards of conduct within 24 hours of
such deviation. If the emergency
prevents a Transmission Provider from
posting information on the OASIS or
Internet Web site, the Transmission
Provide may, for 30 days, also delay
compliance with the requirements of
§ 358.4(a)(2) of this chapter to post this
information on the OASIS or Internet
Web site, as applicable. Upon
application by any such Transmission
Provider, the Commission may extend
these periods.
(c) Tolling of time periods for
Commission action. The Commission
tolls, for purposes of further
consideration, the time period in which
the Commission must act on the
following matters if the time period
during which the Commission would
ordinarily be required to act closes
during the period when the Continuity
of Operations Plan is activated:
(1) 60-day period to act on requests
for Exempt Wholesale Generator or
Foreign Utility Company status;
(2) 90-day period for acting on
requests for certification of qualifying
facility status;
(3) 60-day period for acting on
interlocking directorate applications;
(4) 60-day period for acting on Public
Utility Holding Company Act
exemptions and waivers;
(5) 180-period for acting on
applications under § 203 of the FPA;
(6) 150-day period for acting on
intrastate pipeline applications for
approval of proposed rates;
(7) Period ending 60 days prior to the
Electric Reliability Organization’s (ERO)
fiscal year for acting on the ERO’s
budget;
(8) 60-day period for acting on
notifications that a Reliability Standard

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may conflict with a function, rule,
order, tariff, rate schedule or agreement;
(9) 60-day period for acting on
applications for review of a penalty
imposed by the ERO for violation of a
reliability standard;
(10) 45-day Protest period for
protesting Prior Notice Filings, and the
30-day period for resolving and filing to
withdraw such Protests;
(11) 30-day period for acting on
requests for rehearing; and
(12) Time periods for acting on
interlocutory appeals and certified
questions.
(d) Suspension of certain
requirements. During periods when the
Commission’s Continuity of Operations
Plan is activated, requirements for the
following filings, submissions, and
notifications are suspended.
(1) Filings to comply with
Commission orders, including orders
issued by administrative law judges;
(2) Filings required to be made by a
date certain under the Commission’s
regulations or orders;
(3) Motions to intervene and protests,
and notices of intervention;
(4) Comments responding to proposed
rulemakings or technical conferences;
(5) Responses to data requests;
(6) Self-reports of violations;
(7) Responses to staff audit reports;
(8) Contacts with the Commission’s
Enforcement Hotline;
(9) Accounting filings required by the
Commission’s Uniform Systems of
Accounts; and
(10) Forms required to be filed by a
date certain.
(e) Acceptance and Suspension of
Rate Filings. When the date by which
the Commission is required to act on
filings made pursuant to section 4 of the
Natural Gas Act, sections 205 of the
Federal Power Act, and section 6(e) of
the Interstate Commerce Act falls during
periods when the Continuity of
Operations Plan is activated, such
filings shall be deemed to be accepted
and suspended and made effective on
the requested effective date, subject to
refund and further order of the
Commission.
(f) Electric Reliability Organization
Penalties. If the date on which an
Electric Reliability Organization
imposes a penalty under Federal Power
Act § 215 would take effect falls during
a period when the COOP Plan is
activated, review of such penalty by the
Commission shall be deemed to be
initiated and the penalty shall be stayed
pending further action of the
Commission.
(g) Consistency of State action with
reliability standard. If the date by which
a Commission determination under FPA

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§ 215 as to whether a State action is
inconsistent with a reliability standard
is required to be made falls during a
period when the COOP Plan is
activated, the effectiveness of the State
action will be deemed to be stayed
pending further action by the
Commission.
(h) Suspension of Evidentiary
Hearings. During periods when the
Continuity of Operations Plan is
activated, all hearings, prehearing
conferences, settlement conferences,
and meetings before administrative law
judges are suspended.
(i) Enforcement Actions. During
periods when the Continuity of
Operations Plan is activated, the
Commission will not initiate an
enforcement action under section
210(h)(2) of the Public Utility
Regulatory Policies Act of 1978.
[FR Doc. E6–11990 Filed 7–26–06; 8:45 am]
BILLING CODE 6717–01–P

DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 866
[Docket No. 2006N–0276]

Medical Devices; Immunology and
Microbiology Devices; Classification of
Fecal Calprotectin Immunological Test
Systems
AGENCY: Food and Drug Administration,

HHS.
ACTION: Final rule.
SUMMARY: The Food and Drug
Administration (FDA) is classifying
fecal calprotectin immunological test
systems into class II (special controls).
The special control that will apply to
these devices is the guidance document
entitled, ‘‘Class II Special Controls
Guidance Document: Fecal Calprotectin
Immunological Test Systems.’’ The
agency is classifying these devices into
class II (special controls) in order to
provide a reasonable assurance of safety
and effectiveness of these devices.
Elsewhere in this issue of the Federal
Register, FDA is announcing the
availability of a guidance document that
will serve as the special control for
these devices.
DATES: This rule is effective August 28,
2006. The classification was effective
April 26, 2006.
FOR FURTHER INFORMATION CONTACT:
Deborah Moore, Center for Devices and
Radiological Health (HFZ–440), Food
and Drug Administration, 2098 Gaither

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aferc%3A3c9525d1f680c442. Public record. Not legal advice.