[Federal Register Volume 77, Number 142 (Tuesday, July 24, 2012)]
[Proposed Rules]
[Pages 43184-43189]
[FR Doc No: 2012-18012]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 2 and 35

[Docket Nos. AD12-9-000 and AD11-11-000]

Allocation of Capacity on New Merchant Transmission Projects and
New Cost-Based, Participant-Funded Transmission Projects; Priority
Rights to New Participant-Funded Transmission

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Proposed Policy Statement.

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SUMMARY: The Commission seeks comment on this proposed policy
statement, which clarifies and refines current policies governing the
allocation of capacity for new merchant transmission projects and new
nonincumbent, cost-based, participant-funded transmission projects. The
Commission proposes to allow developers of such projects to select a
subset of customers, based on not unduly discriminatory or preferential
criteria, and negotiate directly with those customers to reach
agreement on the key terms and conditions for procuring capacity, when
the developers (1) broadly solicit interest in the project from
potential customers, and (2) file a report with the Commission
describing the solicitation, selection and negotiation process. The
Commission proposes these policy reforms to ensure transparency in the
capacity allocation process while providing developers the ability to
bilaterally negotiate rates, terms, and conditions for the full amount
of transmission capacity with potential customers.

DATES: Comments on the proposed policy statement are due on or before
September 24, 2012.

FOR FURTHER INFORMATION CONTACT:

Becky Robinson, Office of Energy Policy and Innovation, 888 First
Street NE., Washington, DC 20426,<PHONE_NUMBER>,
<EMAIL_ADDRESS>Andrew Weinstein, Office of General Counsel, 888 First Street NE.,
Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>Brian Bak, Office of Energy Policy and Innovation, 888 First Street
NE., Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

140 FERC ] 61,061

    Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller,
John R. Norris, Cheryl A. LaFleur, and Tony T. Clark.

Proposed Policy Statement

Issued July 19, 2012.

I. Introduction

    1. The Commission seeks comment on this proposed policy statement,
which clarifies and refines current policies governing the allocation
of capacity for new merchant transmission projects and new
nonincumbent, cost-based, participant-funded transmission projects. In
recent years, a number of merchant and nontraditional transmission
developers have sought guidance from the Commission regarding
application of open access principles to new transmission facilities
through petitions for declaratory orders. As the Commission addressed
these requests, its policies have evolved over time to provide
potential customers adequate opportunities to obtain service while also
providing transmission developers adequate certainty to assist with
financing transmission projects. As a result of these evolving
policies, different rules have been adopted regarding capacity
allocation for merchant transmission projects and nonincumbent, cost-
based, participant-funded transmission projects.
    2. With the benefit of experience regarding the unique
characteristics of merchant and other nontraditional transmission
project proposals, and in consideration of industry input on Commission
policies regarding the allocation of capacity on such projects, the
Commission proposes to streamline its capacity allocation policies by
establishing consistent policies regarding capacity allocation for both
merchant transmission projects and nonincumbent, cost-based,
participant-funded transmission projects. Specifically, the Commission
proposes to allow developers of such projects to select a subset of
customers, based on not unduly discriminatory or preferential criteria,
and negotiate directly with those customers to reach agreement on the
key terms and conditions for procuring capacity, when they (1) broadly
solicit interest in the project from potential customers, and (2)
submit a report to the Commission describing the solicitation,
selection and negotiation process. The Commission proposes these policy
reforms to ensure transparency in the capacity allocation process while
providing developers the ability to negotiate bilaterally with
potential customers the rates, terms, and conditions for the full
amount of transmission capacity. These policy reforms would be
implemented within the existing four factor analysis used to evaluate
requests for negotiated rate authority.\1\ The Commission seeks comment
regarding this proposed change in policy, as discussed below.
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    \1\ See infra note 29.
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II. Background

    3. The Commission first granted negotiated rate authority to a
merchant transmission project developer over a decade ago, finding that
merchant transmission can play a useful role in expanding competitive
generation alternatives for customers.\2\ Unlike

traditional utilities recovering their costs-of-service from captive
and wholesale customers, investors in merchant transmission projects
assume the full market risk of development.\3\ Over the course of a
number of early proceedings, the Commission developed ten criteria to
guide its analysis in making a determination as to whether negotiated
rate authority would be just and reasonable for a given merchant
transmission project.\4\ Two of these criteria were that (1) an open
season process should be employed to initially allocate all
transmission capacity and (2) the results of the open season should be
posted on an Open Access Same-Time Information System (OASIS) and filed
in a report with the Commission.\5\
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    \2\ TransEnergie U.S., Ltd. 91 FERC ] 61,230, at 61,838 (2000)
(TransEnergie).
    \3\ Id. at 61,836.
    \4\ Id.; Neptune Regional Transmission System, LLC, 96 FERC ]
61,147, at 61,633 (2001) (Neptune); Northeast Utilities Service Co.,
97 FERC ] 61,026, at 61,075 (2001) (Northeast Utilities I);
Northeast Utilities Service Co., 98 FERC ] 61,310, at 62,327 (2002)
(Northeast Utilities II).
    \5\ The ten criteria are: (1) The merchant transmission facility
must assume full market risk; (2) the service should be provided
under the open access transmission tariff (OATT) of the Independent
System Operator (ISO) or Regional Transmission Organization (RTO)
that operates the merchant transmission facility and that
operational control be given to that ISO or RTO; (3) the merchant
transmission facility should create tradable firm secondary
transmission rights; (4) an open season process should be employed
to initially allocate transmission rights; (5) the results of the
open season should be posted on the OASIS and filed in a report to
the Commission; (6) affiliate concerns should be adequately
addressed; (7) the merchant transmission facility not preclude
access to essential facilities by competitors; (8) the merchant
transmission facilities should be subject to market monitoring for
market power abuse; (9) physical energy flows on merchant
transmission facilities should be coordinated with, and subject to,
reliability requirements of the relevant ISO or RTO; and (10)
merchant transmission facilities should not impair pre-existing
property rights to use the transmission grids of inter-connected
RTOs or utilities. E.g., Northeast Utilities I, 97 FERC at 61,075.
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    4. In Chinook, the Commission refined its approach to evaluating
merchant transmission by adopting a four-factor analysis.\6\ Under this
analysis, the Commission continues to rely upon an open season and a
post-open season report as a means to provide transparency in the
allocation of initial transmission capacity and ensure against undue
discrimination among potential customers in the award of transmission
capacity. Specifically, the Commission evaluates the terms and
conditions of the open season as part of ensuring no undue
discrimination (second factor),\7\ and uses the open season as an added
protection in overseeing any affiliate participation, to ensure no
undue preference or affiliate concerns (third factor).
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    \6\ The four factors are: (1) the justness and reasonableness of
rates; (2) the potential for undue discrimination; (3) the potential
for undue preference, including affiliate preference; and (4)
regional reliability and operational efficiency requirements. E.g.,
Chinook Power Transmission, LLC, 126 FERC ] 61,134, at P 37 (2009)
(Chinook).
    \7\ Also, the Commission looks to a developer's own OATT
commitments or its commitment to turn operational control over to an
RTO or ISO. See id. P 40. Guidance given in this policy statement
with regards to satisfying the second factor is directed at the open
season requirement; the Commission will continue to require merchant
and other transmission developers either to file an OATT or to turn
over control to an RTO or ISO.
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    5. The Chinook order also marked a change in Commission policy on
capacity allocation, as in that order the Commission for the first time
authorized developers to allocate some portion of capacity through
anchor customer presubscriptions, while requiring that the remaining
portion be allocated in a subsequent open season. The Commission
implemented this policy to achieve the dual goals of requiring an open
season process that ensures capacity on a merchant transmission project
is allocated transparently in an open, fair, and not unduly
discriminatory manner, while permitting an anchor customer model that
enables developers of merchant transmission projects to meet the
financial challenges unique to merchant transmission development.\8\
Since the Chinook order, the Commission has issued orders on several
new merchant and other nontraditional transmission development
proposals, including granting requests to allocate up to 75 percent of
a transmission project's capacity to anchor customers.\9\
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    \8\ See id. P 46.
    \9\ See, e.g., Champlain Hudson Power Express, Inc., 132 FERC ]
61,006 (2010); Rock Island Clean Line LLC, 139 FERC ] 61,142 (2012);
Southern Cross Transmission LLC, 137 FERC ] 61,207 (2011).
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    6. The Commission also has received proposals from transmission
developers regarding the allocation of capacity on cost-based,
participant-funded transmission projects. These proceedings involved
incumbent transmission developers,\10\ while one involved a
nonincumbent transmission developer.\11\ In NU/NSTAR, the Commission
approved the structure of a transaction whereby a customer was granted
usage rights to transmission capacity in exchange for funding the
transmission expansion, under the reasoning that any potential
transmission customer has the right to request transmission service
expansion from a transmission owning utility, and that utility is
obligated to make any necessary system expansions and offer service at
the higher of an incremental cost or an embedded cost rate to the
transmission customer. More recently, in National Grid, the Commission
found again that participant funding of transmission projects by
incumbent transmission providers is not inconsistent with the
Commission's open access requirements.\12\ Cost-based participant-
funded projects are similar to merchant projects in that both involve
willing customers assuming part of the risk of a transmission project
in return for defined capacity rights; i.e., there is no direct
assignment of costs to captive customers. Cost-based participant-funded
projects differ between incumbents and nonincumbents, in that incumbent
transmission providers have a clearly defined set of existing
obligations under their tariffs for the expansion of their existing
transmission facilities, whereas nonincumbents have no existing
obligation to build any transmission facilities.
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    \10\ See, e.g., Northeast Utilities Service Company, NSTAR
Electric Company, 127 FERC ] 61,179 (2009) (NU/NStar), order denying
reh'g. and clarification, 129 FERC ] 61,279 (2009); National Grid
Transmission Services Corporation and Bangor Hydro Electric Company,
139 FERC ] 61,129 (2012) (National Grid).
    \11\ See Grasslands Renewable Energy, LLC, 133 FERC ] 61,225
(2010).
    \12\ National Grid, 139 FERC ] 61,129 at P 29.
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    7. To gain feedback regarding the Commission's capacity allocation
policies, the Commission held a technical conference in March 2011 to
discuss the extent to which nonincumbent developers of transmission
should be provided flexibility in the allocation of rights to use
transmission facilities developed on a cost-of-service or negotiated
rate basis.\13\ Participants at that conference and subsequent
commenters acknowledged the value in widely soliciting new customers,
but they also expressed the desire to be able to allocate 100 percent
of their projects' capacity through bilateral negotiations with
identified customers.\14\ Based on these comments, the Commission held
a follow up workshop in February 2012 to obtain input on potential
reforms to the Commission's capacity allocation policies.\15\ Many
participants at the

2012 workshop suggested that the need for flexibility required
something less structured than the traditional open season process.
Specifically, some commenters, including transmission developers,
emphasized the inherent incentive transmission developers have to
solicit interest widely and attract potential customers to their
project, so that they can identify customers that are most likely to be
successful in their own generation projects and therefore provide the
greatest certainty that they will be successful in becoming
transmission customers.\16\ In this respect, these commenters argued
that their incentives harmonize with the Commission's goals of open
access. Further, they argue that their class of transmission developers
does not raise the same concerns that motivated the Commission in Order
No. 888,\17\ where vertically-integrated utilities had an economic
incentive to favor their own generation and discriminate against
competitors when providing transmission service.\18\
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    \13\ ``Priority Rights to New Participant-Funded Transmission,''
AD11-11-000, March 15, 2011. This technical conference also
addressed generator lead lines, but those facilities are not the
subject of this proposed policy statement.
    \14\ See, e.g., Clean Line Energy Partners May 5, 2011 Comments
at 7 (Clean Line); LS Power Transmission, LLC May 5, 2011 Comments
at 3-4 (LSPT); Transmission Developers, Inc., May 5, 2011 Comments
at 4-5 (TDI); Western Independent Transmission Group May 5, 2011
Comments at 6 (WITG); and Tonbridge Power Inc. April 19, 2011
Comments at 2 (Tonbridge).
    \15\ ``Allocation of Capacity on New Merchant Transmission
Projects and New Cost-Based, Participant-Funded Transmission
Projects,'' Docket No. AD12-9-000 (February 28, 2012).
    \16\ See, e.g., MATL LLP and Montana Alberta Tie, Ltd. March 29,
2012 Comments at 3 (MATL).
    \17\ Promoting Wholesale Competition Through Open Access Non-
Discriminatory Transmission Services by Public Utilities; Recovery
of Stranded Costs by Public Utilities and Transmitting Utilities,
Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ]
31,036 (1996), order on reh'g, Order No. 888-A, 62 FR 12274 (Mar.
14, 1997), FERC Stats. & Regs. ] 31,048, order on reh'g, Order No.
888-B, 81 FERC ] 61,248 (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 (DC Cir. 2000),
aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).
    \18\ SunZia Transmission, LLC March 29, 2012 Comments at 7
(SunZia).
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    8. However, commenters also focused on the need for negotiation
flexibility during the capacity allocation process,\19\ pointing out
that the transmission developer and customer need to address a variety
of issues, including points of delivery and receipt, project timing and
what happens if schedules change, termination rights of parties at
various development stages, development cost-sharing, length and
payments of the initial term of service, extensions of the term and
associated payments.\20\ These commenters argued that a rigid open
season process that requires developers to offer all customers the same
terms and conditions does not allow for the bilateral exchange of
information to address the unique needs of developers and their
potential customers. Moreover, these commenters pointed out that there
have been no claims of undue discrimination resulting from any of the
anchor customer proposals the Commission has approved, to date,\21\ and
that parties who feel they were unduly discriminated against have had,
as an added protection, the right to file a section 206 complaint.\22\
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    \19\ See, e.g., WITG March 28, 2012 Comments at 5; Clean Line
March 28, 2012 Comments at 5-7; SunZia March 29, 2012 Comments at 3-
6, 9; LSPT March 29, 2012 Comments at 2-4; and Pattern Transmission
March 28, 2012 Comments at 6-7 (Pattern).
    \20\ LSPT March 29, 2012 Comments at 2-3.
    \21\ TransWest Express LLC March 28, 2012 Comments at 7.
    \22\ Duke Energy Corporation March 29, 2012 Comments at 7-8; 16
U.S.C. 824e (2006).
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    9. However, other commenters at the 2012 workshop voiced concerns
with the merchant transmission model in general, and the opportunity
for potentially unduly discriminatory deals.\23\ They argued that
allowing more flexibility for merchant transmission developers is
tantamount to reverting to the pre-open access Order No. 888 days of
transmission regulation, and discouraged the Commission from pursuing
policies that enable anchor customers to exclude or burden generation
competitors or engage in other abusive practices the Commission sought
to eradicate in Order No. 888. Such commenters favor requiring merchant
transmission developer participation in the regional planning
process.\24\ The staff of the Federal Trade Commission similarly
questions how the Commission will restrain merchant transmission
developers from exercising market power.\25\
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    \23\ See, e.g., Transmission Access Policy Study Group March 29,
2012 Comments at 6-9 (TAPS); Transmission Dependent Utility Systems
March 29, 2012 Comments at 2-4; New Jersey Division of Rate Counsel
March 29, 2012 Comments at 2-4; and the Federal Trade Commission
staff June 14, 2012 Comments at 6-9 (FTC staff).
    \24\ This latter argument is outside the scope of this
proceeding and was addressed in Order No. 1000-A. Transmission
Planning and Cost Allocation by Transmission Owning and Operating
Public Utilities, Order No. 1000, FERC Stats. & Regs. ] 31,323
(2011), order on reh'g, Order No. 1000-A, 139 FERC ] 61,132, at P
297 (2012).
    \25\ FTC staff June 14, 2012 Comments at 9.
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    10. The Commission believes that there is a role within its
transmission development policies for both bilateral negotiations for
transmission service and uniform rules and processes through the pro
forma OATT for all customers at all times. The policy of open access
and comparable treatment is the underpinning of the Commission's
approach to ensuring against undue discrimination and permeates many,
if not all, of the Commission's programs. However, this does not mean
that the Commission cannot be flexible in how it accomplishes open
access and comparable treatment. As Order No. 1000 \26\ is implemented
around the country, the Commission expects that more transmission needs
will be identified and addressed through the open and transparent
regional transmission planning process. Nonetheless, bilateral
negotiation between transmission developers and potential customers may
be another appropriate vehicle for new merchant transmission projects
and new nonincumbent, cost-based, participant-funded transmission
projects to move forward. In fact, Order No. 1000 allowed for such a
vehicle, noting that some projects may not seek to pursue regional or
interregional cost allocation.\27\ In addition, there may be projects
that are considered in the regional planning process that, although not
ultimately selected in a regional plan for purposes of cost allocation,
have sufficient value for individual potential customers such that they
wish to pursue them through bilateral negotiations with a potential
developer. This proposed policy statement is intended to provide a
``roadmap'' for entities to pursue those projects, while also serving
to ensure transparency in the allocations of capacity resulting from
such bilateral negotiation and, in turn, to ensure that transmission
service is provided at rates, terms and conditions that are just and
reasonable and not unduly discriminatory.
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    \26\ Transmission Planning and Cost Allocation by Transmission
Owning and Operating Public Utilities, Order No. 1000, FERC Stats. &
Regs. ] 31,323 (2011), order on reh'g, Order No. 1000-A, 139 FERC ]
61,132 (2012).
    \27\ See Order No. 1000, FERC Stats. & Regs. ] 31,323 at P 725;
Order No. 1000-A, 139 FERC ] 61,132 at PP 728-729 (``[N]othing in
Order No. 1000 forecloses the opportunity for a transmission
developer, a group of transmission developers, or one or more
individual transmission customers to voluntarily assume the costs of
a new transmission facility * * *. Transmission developers who see
particular advantages in participant funding remain free to use it
on their own or jointly with others. This simply means they would
not be pursuing regional or interregional cost allocation.'').
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    11. Accordingly, the Commission proposes to clarify and refine its
policies governing the allocation capacity for new merchant
transmission projects and new nonincumbent, cost-based, participant-
funded transmission projects to ensure that it is done in an open and
transparent manner, giving all interested parties a chance to
participate. The Commission believes that the proposed capacity
allocation process outlined here satisfies our statutory
responsibilities, provides sufficient transparency and protections to
market participants, and is responsive to the industry concerns.

III. Discussion

 A. Merchant Transmission Projects

    12. The Commission proposes to revise its merchant transmission
policy to streamline the process by which capacity may be allocated on
new merchant transmission projects and to expect more detail and
transparency in the report describing the developer's capacity
allocation approach. While the Commission's fundamental concerns
continue to be that new transmission capacity be allocated in a not
unduly discriminatory or preferential manner, the Commission's
experience with new merchant transmission projects and comments
received during the technical conference and workshop suggest that we
can provide more flexibility while addressing these concerns. The
Commission proposes to allow merchant transmission developers to
allocate up to 100 percent of their projects' capacity through
bilateral negotiations.\28\ With the transparency protections discussed
below, the Commission also proposes to allow capacity allocation to
affiliates, when done in a transparent manner, so that other interested
parties can voice concern if they believe the affiliate was treated
preferentially at the expense of another party.\29\
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    \28\ Commenters in the technical conference and in the workshop
specifically requested that the Commission clarify circumstances
under which merchant transmission developers would be allowed to
allocate up to 100 percent of their project's capacity through
bilateral negotiations.
    \29\ By proposing to adopt the policies herein, the Commission
seeks to encourage merchant transmission developers intending to
seek negotiated rate authority to utilize the guidelines discussed
below. To the extent that a merchant transmission developer
substantially complies with any such policies ultimately adopted by
the Commission, the developer would be deemed to have satisfied the
second (undue discrimination) and third (undue preference) factors
of the four-factor analysis.
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    13. The flexibility we propose to afford under the policy outlined
below is complemented by the emphasis on additional detail in reports
describing the developer's capacity allocation approach. The Commission
agrees with commenters that each merchant transmission project has
unique characteristics that require the ability to negotiate risk-
sharing and other details. The Commission also acknowledges that
merchant transmission developers have inherent incentives to solicit
interest widely in a potential project. However, other commenters point
out that counter-incentives may exist that motivate a developer to
unduly prefer one or more customers. To protect against undue
discrimination, the Commission proposes to allow merchant transmission
developers to engage in an open solicitation to identify potential
transmission customers, but with the expectation that they will submit
to the Commission reports regarding the processes that led to the
identification of customers and execution of relevant capacity
arrangements. The Commission believes that this approach, when coupled
with the existing opportunity to file complaints under FPA section 206,
serves the interest of customers and developers alike.\30\
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    \30\ See Chinook, 126 FERC ] 61,134 at P 41.
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1. Open Solicitation Process
    14. In the past, the Commission has required an open season for the
allocation of capacity on new merchant transmission projects. The open
season requirement was to ensure open access to transmission capacity
and prevent the withholding of transmission capacity from interested
transmission customers, and also to enable the developer to assess the
size of the market. However, beginning with the Chinook order, the
Commission also began to allow the allocation of a portion of
transmission capacity through bilateral negotiations prior to an open
season. Thus, current Commission policy allows a merchant transmission
developer to solicit interest through bilateral negotiations for a
portion of its capacity so long as it makes the remainder available
through an open season.
    15. Based on the Commission's experience with prior cases and
information received from the technical conference and workshop, the
Commission believes that bilateral negotiations, if conducted in a
transparent manner, may serve the same purpose as an open season
process by ensuring against undue discrimination or preference in the
provision of transmission service. Hence, the Commission proposes that,
in seeking negotiated rate authority, merchant transmission developers
should also engage in an open solicitation of interest in their
projects from potential transmission customers (without the previous
requirement of an open season). Such open solicitation should include a
broad notice issued in a manner that ensures that all potential and
interested customers are informed of the proposed project. For example,
such notice may be placed in trade magazines, regional energy
publications, communications with regional transmission planning
groups, and email distribution lists addressing transmission-related
matters. Such notice should include transmission developer points of
contact and pertinent project dates, as well as sufficient technical
specifications and contract information to inform interested customers
of the nature of the project, including:

Technical specifications
    [ssquf] Project size/Capacity: MW and/or kV rating (specific
value or range of values)
    [ssquf] End points of line (as specific as possible such as
points of interconnection to existing lines and substations,
although it may be potentially broad, such as Montana to Nevada, if
the project is very early in development)
    [ssquf] Projected construction and/or in-service dates
    [ssquf] Type of line--for example, AC, DC, bi-directional
Contract information
    [ssquf] Precedent agreement (if developed)
    [ssquf] Other capacity allocation arrangements (including how it
will address potential oversubscription of capacity)

    16. The developer should also specify in the notice the criteria it
plans to use to select transmission customers, such as credit rating;
``first mover'' status, i.e., customers who respond early and take on
greater project risk; and customers' willingness to incorporate project
risk-sharing into their contracts. This will contribute to the
transparency of the process, and help interested entities know at the
outset the features of the project and how the bids to the merchant
transmission developer will be considered.
    17. Finally, the merchant transmission developer would be expected
to update its posting if there are any material changes to the nature
of the project or the status of capacity allocation.
    18. Under this proposed process, once a subset of customers has
been identified by the developer through the open solicitation process,
the Commission would allow developers to engage in bilateral
negotiations with each potential customer on the specific terms and
conditions for procuring transmission capacity, as the Commission
recognizes that developers and potential customers may need to
negotiate individualized terms that meet their unique needs.\31\ In
these

negotiations, the Commission proposes to allow for distinctions among
prospective customers based on transparent and not unduly
discriminatory or preferential criteria--so long as the differences in
negotiated terms recognize material differences and do not result in
undue discrimination or preference --with the potential result that a
single customer may be awarded up to 100 percent of capacity. For
instance, developers might offer ``first mover'' customers more
favorable terms and conditions than later customers.
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    \31\ While negotiations for the allocation of initial
transmission rights may address terms and conditions of the
transmission service to be ultimately taken once the facilities are
in service, the Commission will adhere to its policy, regardless of
any negotiated agreement, that any deviations from the Commission's
pro forma OATT must be justified as consistent with or superior to
the pro forma OATT when the transmission developer files its OATT
with the Commission and any deviations will be evaluated on that
basis by the Commission when they are submitted. See Chinook, 126
FERC ] 61,134 at PP 47, 63.
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2. Reporting
    19. In the past, the Commission required that developers file a
report, shortly after the close of the open season, on the results of
the open season and any anchor customer presubscription, including
information on the notice of the open season, the method used for
evaluating bids, the identity of the parties that purchased capacity,
and the amount, term, and price of that capacity.\32\ The Commission
required this report to provide transparency to the allocation of
initial transmission rights, and to enable unsuccessful bidders to
determine if they were treated in an unduly discriminatory manner so
that they may file a complaint if they believe they were.\33\
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    \32\ Chinook, 126 FERC ] 61,134 at PP 41, 43.
    \33\ See Chinook, 126 FERC ] 61,134 at P 41; Montana Alberta
Tie, Ltd., 116 FERC ] 61,071, at P 37 (2006).
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    20. The Commission now proposes to place more emphasis on
reporting, as the success of the capacity allocation approach proposed
here and its ability to prevent undue discrimination relies, to a
noticeable degree, on the transparency this report provides. Open
access requires not only that everyone is given an opportunity to seek
access, but also that entities know how their bids were evaluated and,
if they were not selected in the initial allocation of transmission
rights, on what basis that decision was made. If a party feels it was
treated in an unduly discriminatory way, it may file a complaint under
section 206 of the FPA; however, parties must have access to the
relevant information on the outcomes of the capacity allocation process
to evaluate whether or not they were treated fairly.
    21. To prevent against undue discrimination by merchant
transmission developers, a report should be submitted shortly after the
completion of the open solicitation process and the resulting
negotiations describing the processes that led to the identification of
transmission customers and the execution of the relevant contractual
arrangements. The merchant transmission developer should describe the
criteria used to select customers, any price terms, and any risk-
sharing terms and conditions that served as the basis for identifying
transmission customers selected versus those that were not. The
Commission proposes that the developer should include, at a minimum,
the following information in the report to provide sufficient
transparency to the Commission and interested parties:

    (1) Steps the developer took to provide broad notice;
    (2) Identity of the parties that purchased capacity, and the
amount, term, and price of that capacity;
    (3) Basis for the developer's decision to prorate, or not to
prorate, capacity, if a proposed project is oversubscribed;
    (4) Basis for the developer's decision not to increase capacity
for a proposed project if it is oversubscribed (including the
details of any relevant technical or financial bases for declining
to increase capacity);
    (5) Justification for offering more favorable terms to certain
customers, such as ``first movers'' or those willing to take on
greater project risk-sharing;

    (6) Criteria used for distinguishing customers and the method used
for evaluating bids. This should include specific details on how each
potential transmission customer (including both those who were and
those who were not allocated capacity) was evaluated and compared to
other potential transmission customers, both at the early stage when
the developer chooses with whom to enter into bilateral negotiations
and subsequently when the developer chooses in the negotiation phase to
whom to award transmission capacity;
    (7) Explanation of decisions used to select and reject specific
customers. In particular, the report should identify the facts,
including any terms and conditions of agreements unique to individual
customers that led to their selection, and relevant information about
others that led to their rejection. If a selected customer is an
affiliate, the Commission will look more carefully at the basis for
reaching that determination.

    22. The Commission anticipates that, under this proposed policy,
those developers requesting negotiated rate authority will file this
report either in conjunction with their request for negotiated rate
authority or as a compliance filing to a Commission order approving a
request for negotiated rate authority.\34\ This will allow interested
entities to submit comments on the report, or otherwise protest the
contents or insufficiency of the report, to ensure that there is
sufficient transparency, as well as to provide Commission oversight in
the capacity allocation process.\35\
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    \34\ This flexibility in timing acknowledges that parties have
filed and may continue to file requests for negotiated rate
authority at various stages of their project development process.
    \35\ Commenters opposing the Commission's merchant transmission
policy generally express concern regarding the use and allocation of
scarce rights-of-way. The Commission appreciates the significance of
this issue, but has limited authority to address it directly.
Through Order Nos. 890 and 1000, the Commission has increased
transparency in local and regional transmission planning processes,
and through this proposed policy statement seeks to increase
transparency in the negotiation of capacity allocation with merchant
transmission and nonincumbent, cost-based, participant-funded
developers. For example, as noted above, the pre-open solicitation
notice requirement and post-open solicitation reporting requirement
proposed here require developers to provide information on any
oversubscription of a proposed project. The Commission anticipates
that this kind of information may be useful for relevant entities
(such as siting authorities) as they evaluate whether a proposed
transmission facility satisfies applicable requirements for use and
allocation of rights-of-way.
---------------------------------------------------------------------------

    23. Beyond the reporting process described above, the Commission
does not propose to change its existing requirement that developers
seek Commission approval, either when the developer requests negotiated
rate authority or files its report describing its capacity allocation
approach, if an affiliate is expected to participate as a customer on
the proposed merchant transmission project. Further, consistent with
Commission precedent, in order to allow affiliate participation, the
Commission will expect an affirmative showing that the affiliate is not
afforded an undue preference.\36\
---------------------------------------------------------------------------

    \36\ See Chinook, 126 FERC ] 61,134 at PP 49-50.
---------------------------------------------------------------------------

B. Nonincumbent, Cost-Based, Participant-Funded Projects

    24. The Commission proposes to apply the policy reforms above to
nonincumbent, cost-based, participant-funded transmission developers.
The Commission has similar concerns regarding the capacity allocation
process regardless of whether the project is a nonincumbent, cost-
based, participant-funded transmission project or a merchant
transmission project. That is, the Commission is concerned that access
is not unduly discriminatory or preferential. We believe that the
process outlined herein will address our concerns regardless of the
manner by which transmission rates are determined. Commenters and
workshop participants support the Commission's

application of these policy reforms to both merchant transmission
developers and nonincumbent, cost-based, participant-funded
transmission developers.\37\
---------------------------------------------------------------------------

    \37\ TAPS March 29, 2012 Comments at 24; Pathfinder Renewable
Wind Energy, LLC March 28, 2012 Comments at 3-4.
---------------------------------------------------------------------------

    25. However, use of this common process does not eliminate the
distinction between these types of projects. In particular, although
the negotiations between developers and potential customers could
address a transmission rate, among other issues, the Commission's
approach to reviewing such a rate would be different for a new merchant
transmission project than for a new nonincumbent, cost-based,
participant-funded transmission project. For a merchant transmission
project, the Commission relies on the processes it sets forth to ensure
against undue discrimination in the award of capacity and the
willingness of the transmission developer and customers to negotiate a
transmission rate and terms and conditions, understanding that the
customers are not captive customers.\38\ For a nonincumbent, cost-
based, participant-funded transmission project, the Commission would
review the transmission rate, including any agreed upon return on
equity, in greater detail to ensure that it satisfies Commission
precedent regarding cost-based transmission service.
---------------------------------------------------------------------------

    \38\ TransEnergie, 91 FERC ] 61,230 at 61,836.
---------------------------------------------------------------------------

    26. While we are proposing that this capacity allocation process
apply equally to nonincumbent, cost-based, participant-funded projects,
we are not proposing to evaluate such projects based on the other
aspects of the four factor analysis set forth in Chinook.\39\ To the
extent nonincumbent, cost-based, participant-funded transmission
projects wish to use an anchor customer-type model, the effect of the
proposed policy would be that the Commission will deem any capacity
allocation process that follows the guidelines of this proposed policy
statement to satisfy its concerns regarding undue discrimination and
undue preference.
---------------------------------------------------------------------------

    \39\ We note, however, that petitions regarding capacity
allocation on nonincumbent, cost-based, participant-funded
transmission projects must continue to be evaluated by the
Commission in accordance with the Commissions' responsibilities
under the FPA.
---------------------------------------------------------------------------

 C. Incumbent, Cost-Based, Participant-Funded Projects

    27. The Commission does not propose to change its case-by-case
evaluation of requests for cost-based participant-funded transmission
projects by incumbent transmission providers.\40\ As noted above,
incumbents differ from nonincumbents in that the former have a clearly
defined set of existing obligations under their OATTs with regard to
new transmission development, including participation in regional
planning processes and the processing of transmission service request
queues. Nonincumbent transmission developers do not yet own or operate
transmission facilities in the region that they propose to develop
transmission and, therefore, are not yet subject to an OATT in that
region. The proposed policy laid out above identifies the Commission's
policies regarding the allocation of capacity for merchant transmission
developers and nonincumbent, cost-based, participant-funded projects
during the development of a new transmission facility. In most
instances, we would expect that an incumbent transmission provider will
be able to use existing processes set forth in its OATT to allocate
capacity on a new transmission facility. These existing OATT processes
do not prohibit incumbent transmission owners from identifying projects
that could be constructed on a participant-funded basis in conjunction
with processing of transmission service requests or in addition to
meeting transmission needs through participation in a regional
transmission planning process.\41\ Furthermore, the Commission will
continue to entertain on a case-by-case basis requests for waiver of
any OATT requirements that may be needed for the incumbent transmission
owner to pursue innovative transmission development that is just,
reasonable, and not unduly discriminatory. For example, an incumbent
may seek waiver of serial queue processing requirements so that they
may cluster transmission service requests,\42\ or they may seek to
``ring fence'' a transmission project in order to ensure that new
transmission facilities developed for a particular customer or set of
customers do not adversely impact existing customers, including native
load.\43\ Incumbent developers should address the capacity allocation
issues in a manner that does not constitute undue discrimination or
preference and is consistent with the applicable Commission-accepted
tariffs.\44\
---------------------------------------------------------------------------

    \40\ See, e.g., NU/NSTAR; National Grid.
    \41\ See, e.g., Subscription Process for Proposed PacifiCorp
Transmission Expansion Projects, available at http://www.oasis.pacificorp.com/oasis/ppw/SUBSCRIPTION_PROCESS.PDF (noting
incumbent's solicitation of interest from third parties in the
development of a cost-based transmission project in advance of
receipt of transmission service requests from third parties under
the incumbent's OATT).
    \42\ See, e.g., Portland General Electric Co., 139 FERC ] 61,133
(2012) (granting waiver of serial queue processing requirements,
allowing a general facilities study for a cluster of transmission
and interconnection service requests).
    \43\ See, e.g., Mountain States Transmission Intertie, LLC and
NorthWestern Corp., 127 FERC ] 61,270, at PP 2, 5 (2009) (incumbent
developing an export-only transmission project through a separate
stand-alone company so that their existing transmission customers
will not be required to subsidize the cost of a new transmission
facility to serve off-system markets; the Commission presented the
option of this project proceeding on a cost-of-service basis).
    \44\ See National Grid, 139 FERC ] 61,129 at P 33.
---------------------------------------------------------------------------

IV. Comment Procedures

    28. The Commission invites comments on this proposed policy
statement September 24, 2012.

V. Document Availability

    29. 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 5:00
p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC
20426.
    30. 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.
    31. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from FERC Online Support at 202-502-
6652 (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>
    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2012-18012 Filed 7-23-12; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 81, Number 145 (Thursday, July 28, 2016)]
[Notices]
[Pages 49650-49652]
[FR Doc No: 2016-17782]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9949-78-OLEM]

The Hazardous Waste Electronic Manifest System Advisory Board:
Request for Nominations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Request for nominations.

-----------------------------------------------------------------------

SUMMARY: The U.S. Environmental Protection Agency (EPA) invites
nominations of qualified candidates to be considered for a three-year
appointment to fill one IT expert position on the Hazardous Waste
Electronic Manifest System Advisory Board (the ``Board''). Pursuant to
the Hazardous Waste Electronic Manifest Establishment Act (the ``e-
Manifest Act''

or the ``Act''), EPA has established the Board to provide practical and
independent advice, consultation, and recommendations to the EPA
Administrator on the activities, functions, policies and regulations
associated with the Hazardous Waste Electronic Manifest (e-Manifest)
System.

DATES: Nominations should be received on or before August 29, 2016.

ADDRESSES: Nominations should be submitted via email to
<EMAIL_ADDRESS>and identified with ``BOARD NOMINATION'' in the
subject line of the email.

FOR FURTHER INFORMATION CONTACT: Fred Jenkins, Designated Federal
Officer (DFO), U.S. Environmental Protection Agency, Office of Resource
Conservation and Recovery, (MC: 5303P), 1200 Pennsylvania Avenue NW.,
Washington, DC, 20460, Phone:<PHONE_NUMBER>; or by email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The e-Manifest Act was signed into law on
October 5, 2012 (http://www.gpo.gov/fdsys/pkg/BILLS-112s710enr/pdf/BILLS-112s710enr.pdf). Under the terms of the e-Manifest Act, 42 U.S.C.
6939(g), EPA is required to establish a national electronic Information
Technology (IT) manifest system. This system is to enable users of the
uniform hazardous waste manifest forms (EPA Form 8700-22 and
Continuation Sheet 8700-22A) to have the option to more efficiently
track their hazardous waste shipments electronically, in lieu of the
paper manifest, from the point of generation, during transportation,
and to the point of receipt by an off-site facility that is permitted
to treat, store, recycle, or dispose of the hazardous waste. Electronic
manifests obtained from the national system will augment or replace the
paper forms that are currently used for this purpose, and that result
in substantial paperwork costs and other inefficiencies. Congress
intended that EPA develop a system that, among other things, meets the
needs of the user community and decreases the administrative burden
associated with the current paper-based manifest system on the user
community. The Agency anticipates that utilizing electronic manifests
will the reduce burden by reporting facilities by 300,000 to 700,000
hours annually, and will produce annualized and discounted cost savings
over the initial six years of about $34 million. Undiscounted cost
savings should reach $75 million or more each year, once the system is
fully established and deployment costs have been paid off. To ensure
that these goals are met, the Act directs EPA to establish the Board to
assess the effectiveness of the electronic manifest system and make
recommendations to the Administrator for improving the system.
    In addition, the e-Manifest Act directs EPA to develop a system
that attracts sufficient user participation and service revenues to
ensure the viability of the system. As a result, the Act provides EPA
broad discretion to establish reasonable user fees, as the
Administrator determines are necessary, to pay costs incurred in
developing, operating, maintaining, and upgrading the system, including
any costs incurred in collecting and processing data from any paper
manifest submitted to the system after the system enters operation. The
Board will meet to assess the adequacy and reasonableness of the
service fees and, if necessary, make recommendations to the
Administrator to adjust the fees accordingly.
    Prior to system deployment, the Board will be asked to provide
recommendations on important system development matters and on
potential increases or decreases to the amount of a service fee
determined under the fee structure. Substantial system development
planning work is underway. The Agency is utilizing lean start-up
product development strategies with agile, user-centered design and
development methodologies, and is currently conducting additional
system development procurement activities. The Agency anticipates the
initial system deployment to occur in 2018.
    The system will provide the functionality of the current paper
manifest process, in a more efficient electronic workflow, and will
meet all requirements specified in the e-Manifest Act and e-Manifest
Final Rule, which was published on February 7, 2014 (https://www3.epa.gov/epawaste/laws-regs/state/revision/frs/fr231.pdf). The
initial system is envisioned to be a national, electronic system
(internet-based) that will enable current users of the manifest form to
sign, transmit, archive, and retrieve manifests electronically. The e-
Manifest system is further envisioned to allow a fully electronic
mobile workflow. The mobile workflow will provide both on-line and off-
line capabilities which could enable users to complete an electronic
manifest even when internet access is unavailable. EPA envisions that
the system will provide all data processing (paper and electronic
formats), data storage, and data reporting back out to industry and
state users, as well as appropriate public accessibility of data.
Finally, e-Manifest aligns with the Agency's E-Enterprise business
strategy. E-Enterprise for the Environment is a transformative 21st
century strategy--jointly governed by states and EPA--for modernizing
government agencies' delivery of environmental protection. Under this
strategy, the Agency will streamline its business processes and systems
to reduce reporting burden on states and regulated facilities, and
improve the effectiveness and efficiency of regulatory programs for
EPA, states and tribes.
    Although the system has not been completed, the Board is
established in accordance with the provisions of the, e-Manifest Act
and the Federal Advisory Committee Act (FACA), 5 U.S.C. App.2. The
Board is in the public interest and supports EPA in performing its
duties and responsibilities. Pursuant to the e-Manifest Act, the Board
will be comprised of nine members, of which one member is the
Administrator (or a designee), who will serve as Chairperson of the
Board, and eight members will be individuals appointed by the EPA
administrator:

--At least two of whom have expertise in information technology (IT);
--At least three of whom have experience in using, or represent users
of, the manifest system to track the transportation of hazardous waste
under federal and state manifest programs; and
--At least three state representatives responsible for processing those
manifests.

    The Board will meet at least annually as required by the e-Manifest
Act. However, additional meetings may occur approximately once every
six months or as needed and approved by the DFO.
    Member Nominations: Pursuant to the e-Manifest Act, the Board will
assist the Agency in evaluating the effectiveness of the e-Manifest IT
system and associated user fees; identifying key issues associated with
the system, including the need (and timing) for user fee adjustments;
system enhancements; and providing independent advice on matters and
policies related to the e-Manifest program. The Board will provide
recommendations on matters related to the operational activities,
functions, policies, and regulations of EPA under the e-Manifest Act,
including proposing actions to encourage the use of the electronic
(paperless) system, and actions related to the E-Enterprise strategy
that intersect with e-Manifest. These intersections may include issues
such as business to business communications, performance standards for
mobile devices, and Cross Media Electronic Reporting Rule (CROMERR)
compliant e-signatures.

    Any interested person and/or organization may nominate qualified
individuals for membership. EPA values and welcomes diversity. In an
effort to obtain nominations of diverse candidates, the Agency
encourages nominations of women and men of all racial and ethnic
groups. All candidates will be considered and screened against the
criteria listed below as well as EPA's Conflict of Interest (COI) and
appearance of bias guidance (http://www.epa.gov/peerreview/pdfs/spc_peer_rvw_handbook_addendum.pdf and http://www.epa.gov/osa/pdfs/epa-process-for-contractor.pdf). Currently there is one IT expert position
available to be filled on the Board. The other positions have already
been filled pursuant to EPA's request for nominations that was
previously published in the Federal Register (80 FR 8643, February 18,
2015).
    IT nominees should have core competencies and experience in large
scale systems and application development and integration, deployment
and maintenance, user help desk and support, and expertise relevant to
support the complexity of an e-Manifest system. Examples of this
expertise may include but are not limited to: Expertise with web-based
and mobile technologies, particularly that support large scale
operations for geographically diverse users; expertise in IT security,
including perspective on federal IT security requirements; expertise in
electronic signature and user management approaches; expertise with
scalable hosting solutions such as cloud-based hosting; and expertise
in user experience. Existing knowledge of, or willingness to gain an
understanding of EPA shared services and enterprise architecture is a
plus as is experience in setting and managing fee-based systems in
general. Additional criteria used to evaluate nominees include:
     Excellent interpersonal, oral, and written communication
skills;
     Demonstrated experience developing group recommendations;
     Willingness to commit time to the Board and demonstrated
ability to work constructively on committees;
     Absence of financial conflicts of interest;
     Impartiality (including the appearance of impartiality);
and
     Background and experiences that would help members
contribute to the diversity of perspectives on the Board, e.g.,
geographic, economic, social, cultural, educational backgrounds,
professional affiliations, and other considerations.
    Nominations must include a resume, which provides the nominee's
background, experience and educational qualifications, as well as a
brief statement (one page or less) describing the nominee's interest in
serving on the Board and addressing the other criteria previously
described. Nominees are encouraged to provide any additional
information that they believe would be useful for consideration, such
as: Availability to participate as a member of the Board; how the
nominee's background, skills and experience would contribute to the
diversity of the Board; and any concerns the nominee has regarding
membership. Nominees should be identified by name, occupation,
position, current business address, email, and telephone number.
Interested candidates may self-nominate. The Agency will acknowledge
receipt of nominations.
    The person selected for membership will receive compensation for
travel and a nominal daily compensation (if appropriate) while
attending meetings. Additionally, the selected candidate will be
designated as a Special Government Employee (SGE) or consultant.
Candidates designated as SGEs are required to fill out the
``Confidential Financial Disclosure Form for Environmental Protection
Agency Special Government Employees'' (EPA Form 3310-48). This
confidential form provides information to EPA ethics officials to
determine whether there is a conflict between the SGE's public duties
and their private interests, including an appearance of a loss of
impartiality as defined by federal laws and regulations. One example of
a potential conflict of interest may be for IT professional(s) serving
in an organization that is awarded any related e-Manifest system
development contract(s).

    Dated: July 15, 2016.
Barnes Johnson,
Director, Office of Resource Conservation and Recovery, Office of Land
and Emergency Management.
[FR Doc. 2016-17782 Filed 7-27-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 121 (Tuesday, June 23, 2020)]
[Notices]
[Page 37727]
[FR Doc No: 2020-13418]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket Number FRA-2020-0046]

Petition for Waiver of Compliance

    Under part 211 of title 49 Code of Federal Regulations (CFR), this
document provides the public notice that on June 5, 2020, the Everett
Railroad Company (ERRC) petitioned the Federal Railroad Administration
(FRA) for a waiver of compliance from certain provisions of the Federal
railroad safety regulations contained at 49 CFR parts 215 and 224. FRA
assigned the petition Docket Number FRA-2020-0046.
    Specifically, ERRC petitioned FRA for relief from certain
requirements of 49 CFR 215.203, Restricted cars; Sec.  215.303,
Stenciling of maintenance-of-way equipment; and part 224,
Reflectorization of Rail Freight Rolling Stock, concerning one X-29
type railroad boxcar, PRR 77815, which has a 110,000-pound capacity and
was built in 1936. The car last received a single car air brake test on
May 1, 2020.
    ERRC operates over 25 miles of track in Blair County, Pennsylvania,
under restricted speed not exceeding 20 miles per hour, and the car
will not be utilized in interchange service. ERRC seeks to maintain the
car in its historic appearance and identity for photography, film, and
historic preservation purposes.
    A copy of the petition, as well as any written communications
concerning the petition, is available for review online at
www.regulations.gov and in person at the U.S. Department of
Transportation's (DOT) Docket Operations Facility, 1200 New Jersey
Avenue SE, W12-140, Washington, DC 20590. The Docket Operations
Facility is open from 9 a.m. to 5 p.m., Monday through Friday, except
Federal Holidays.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested parties
desire an opportunity for oral comment and a public hearing, they
should notify FRA, in writing, before the end of the comment period and
specify the basis for their request.
    All communications concerning these proceedings should identify the
appropriate docket number and may be submitted by any of the following
methods:
     Website: http://www.regulations.gov. Follow the online
instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Operations Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, W12-140, Washington, DC
20590.
     Hand Delivery: 1200 New Jersey Avenue SE, Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
    Communications received by August 7, 2020 will be considered by FRA
before final action is taken. Comments received after that date will be
considered if practicable.
    Anyone can search the electronic form of any written communications
and comments received into any of our dockets by the name of the
individual submitting the comment (or signing the document, if
submitted on behalf of an association, business, labor union, etc.).
Under 5 U.S.C. 553(c), DOT solicits comments from the public to better
inform its processes. DOT posts these comments, without edit, including
any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at https://www.transportation.gov/privacy. See also https://www.regulations.gov/privacyNotice for the
privacy notice of regulations.gov.

    Issued in Washington, DC.
John Karl Alexy,
Associate Administrator for Railroad Safety, Chief Safety Officer.
[FR Doc. 2020-13418 Filed 6-22-20; 8:45 am]
BILLING CODE 4910-06-P


[Federal Register Volume 84, Number 225 (Thursday, November 21, 2019)]
[Notices]
[Pages 64384-64386]
[FR Doc No: 2019-25209]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-87548; File No. SR-NYSEAMER-2019-50]

Self-Regulatory Organizations; NYSE American LLC; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
Exchange Rule 7.37E Regarding the Exchange's Use of Data Feeds From
NYSE Chicago, Inc. and Amend Exchange Rule 7.45E To Reflect That
Archipelago Securities LLC Would Function as a Routing Broker for NYSE
Chicago, Inc.

November 15, 2019.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby given
that on November 8, 2019, NYSE American LLC (``NYSE American'' or
``Exchange'') filed with

the Securities and Exchange Commission (``Commission'') the proposed
rule change as described in Items I and II below, which Items have been
prepared by the self-regulatory organization. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C.78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to: (1) Amend Rule 7.37E to amend in Exchange
rules the Exchange's use of data feeds from NYSE Chicago, Inc. (``NYSE
Chicago'') for order handling and execution, order routing, and
regulatory compliance; and (2) amend Rule 7.45E to reflect that
Archipelago Securities LLC (``Arca Securities'') would function as a
routing broker for the Exchange's affiliate, NYSE Chicago. The proposed
rule change is available on the Exchange's website at www.nyse.com, at
the principal office of the Exchange, and at the Commission's Public
Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to update and amend the table in Rule 7.37E
that sets forth on a market-by-market basis the specific network
processor and proprietary data feeds that the Exchange utilizes for the
handling, execution and routing of orders, and for performing the
regulatory compliance checks related to each of those functions.
Specifically, the table would be amended to include NYSE Chicago, which
intends to migrate to the Pillar trading platform.\4\ Rule 7.37E
currently provides that the Chicago Stock Exchange, Inc., the
predecessor name of NYSE Chicago, utilizes the securities information
processor (``SIP'') data feed as its primary source for the handling,
execution and routing of orders, as well as for regulatory compliance,
and does not use a secondary source. Once NYSE Chicago transitions
trading to Pillar, it would use a direct data feed as its primary
source and the SIP data feed as a secondary source. To reflect these
changes, the Exchange proposes to amend Rule 7.37E to specify which
data feeds the Exchange would use for NYSE Chicago. Specifically, the
Exchange proposes to amend the rule to provide that NYSE Chicago would
use the direct data feed as the primary source and would use the SIP
data feed as a secondary source.
---------------------------------------------------------------------------

    \4\ NYSE Chicago has announced that, subject to rule approvals,
it will transition to trading on Pillar on November 4, 2019. See
Trader Update, available at https://www.nyse.com/publicdocs/nyse/notifications/trader-update/NYSEChicago_Migration_update_9.4.pdf.
The Exchange originally filed the proposed rule change on October
31, 2019 (SR-NYSEAMER-2019-47) and withdrew such filing on November
8, 2019, and is now submitting this proposed rule change to make a
technical change.
---------------------------------------------------------------------------

    Additionally, the Exchange proposes to amend Rule 7.45E to reflect
that Arca Securities would function as a routing broker for the
Exchange's affiliate, NYSE Chicago. Specifically, the Exchange proposes
to amend Rule 7.45E(c)(1) and (2) to reference NYSE Chicago as an
affiliate of the Exchange for the purposes of the inbound routing
function performed by Arca Securities. The proposed rule change would
provide more clarity and transparency to all the functions that Arca
Securities performs on behalf of the Exchange and its affiliates, which
now includes NYSE Chicago. The Exchange is not proposing any
substantive change to the rule.
2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the
Securities Exchange Act of 1934 (the ``Act''),\5\ in general, and
furthers the objectives of Section 6(b)(5),\6\ in particular, because
it is designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in facilitating
transactions in securities, to remove impediments to, and perfect the
mechanism of, a free and open market and a national market system and,
in general, to protect investors and the public interest. The Exchange
believes its proposal to update the table in Rule 7.37E to include NYSE
Chicago will ensure that Rule 7.37 correctly identifies and publicly
states on a market-by-market basis all of the specific network
processor and proprietary data feeds that the Exchange utilizes for the
handling, execution and routing of orders, and for performing the
regulatory compliance checks to each of those functions. The proposed
rule change also removes impediments to and perfects the mechanism of a
free and open market and protects investors and the public interest
because it provides additional specificity, clarity and transparency.
The Exchange believes its proposed rule change to amend Rule 7.45E also
removes impediments to and perfects the mechanism of a free and open
market and protects investors and the public interest because the
proposed rule change would enhance the clarity and transparency in
Exchange Rules surrounding the inbound routing function performed by
Arca Securities for the Exchange's affiliate, NYSE Chicago.
---------------------------------------------------------------------------

    \5\ 15 U.S.C. 78f(b).
    \6\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The proposed change is not
designed to address any competitive issue but rather would provide the
public and investors with information about which data feeds the
Exchange uses for execution and routing decisions, and provide clarity
in Exchange rules that Arca Securities would perform the inbound
routing function on behalf on the Exchange's affiliate, NYSE Chicago.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    The Exchange has filed the proposed rule change pursuant to Section
19(b)(3)(A) of the Act \7\ and Rule 19b-4(f)(6) thereunder.\8\ Because
the proposed rule change does not: (i) Significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which

it was filed, or such shorter time as the Commission may designate, if
consistent with the protection of investors and the public interest,
the proposed rule change has become effective pursuant to Section
19(b)(3)(A) of the Act and Rule 19b-4(f)(6)(iii) thereunder.\9\
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 78s(b)(3)(A).
    \8\ 17 CFR 240.19b-4(f)(6).
    \9\ In addition, Rule 19b-4(f)(6)(iii) requires the Exchange to
give the Commission written notice of the Exchange's intent to file
the proposed rule change, along with a brief description and text of
the proposed rule change, at least five business days prior to the
date of filing of the proposed rule change, or such shorter time as
designated by the Commission. The Exchange has satisfied this
requirement.
---------------------------------------------------------------------------

    A proposed rule change filed under Rule 19b-4(f)(6) \10\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\11\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. The Exchange represents
that the proposal would correctly identify and publicly state on a
market-by-market basis all of the specific network processor and
proprietary data feeds that the Exchange utilizes for the handling,
execution and routing of orders, and for performing the regulatory
compliance checks to each of those functions. Further, the Exchange
represents that the proposal would enhance the clarity and transparency
in Exchange Rules surrounding the inbound routing function performed by
Arca Securities for NYSE Chicago. Based on the Exchange's
representations, the Commission believes that waiving the 30-day
operative delay is consistent with the protection of investors and the
public interest, and designates the proposed rule change to be
operative upon filing with the Commission.\12\
---------------------------------------------------------------------------

    \10\ 17 CFR 240.19b-4(f)(6).
    \11\ 17 CFR 240.19b-4(f)(6)(iii).
    \12\ For purposes only of waiving the operative delay for this
proposal, the Commission has considered the proposed rule's impact
on efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \13\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
---------------------------------------------------------------------------

    \13\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-NYSEAMER-2019-50 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSEAMER-2019-50. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10:00 a.m. and
3:00 p.m. Copies of the filing also will be available for inspection
and copying at the principal office of the Exchange. All comments
received will be posted without change. Persons submitting comments are
cautioned that we do not redact or edit personal identifying
information from comment submissions. You should submit only
information that you wish to make available publicly. All submissions
should refer to File Number SR-NYSEAMER-2019-50 and should be submitted
on or before December 12, 2019.
---------------------------------------------------------------------------

    \14\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\14\
Jill M. Peterson,
Assistant Secretary.
[FR Doc. 2019-25209 Filed 11-20-19; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register: November 2, 2010 (Volume 75, Number 211)]
[Notices]
[Page 67451-67453]
[DOCID:fr02no10-122]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Petition for Waiver of Compliance

    In accordance with Part 211 of Title 49 Code of Federal Regulations
(CFR), notice is hereby given that the Federal Railroad Administration
(FRA) has received a request for a waiver of compliance from certain
requirements of its safety standards. The individual petition is
described below, including the party seeking relief, the regulatory
provisions involved, the nature of the relief being requested, and the
petitioner's arguments in favor of relief.

National Railroad Passenger Corporation

[Waiver Petition Docket Number FRA-2010-0152]

    The National Railroad Passenger Corporation (Amtrak) seeks a waiver
for relief of sanctions from 49 CFR 240.117(e)(1) through (4), 240.305,
and 240.307. These sections of the regulation relate to punitive
actions that are required to be taken against locomotive engineers for
the violation of certain railroad operating rules. Refer to 49 CFR part
240 for a detailed listing of these sections.
    Amtrak and selected employees of Amtrak's rail system, represented
by the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the
United Transportation Union (UTU), desire to participate in a
Confidential Close Call Reporting System (C3RS) Demonstration Pilot
Project sponsored by FRA's Office of Railroad Policy and Development
and the Office of Railroad Safety. The C3RS Demonstration Pilot Project
is one of the action items included in FRA's Rail Safety Action Plan
announced on January 25, 2006.
    In other industries such as aviation, implementation of ``close
call'' reporting systems that shield the reporting employee from
discipline (and the employer from punitive sanctions levied by the
regulation) have contributed to major reductions in accidents. In March
2005, FRA completed an overarching memorandum of understanding (MOU)
with railroad labor organizations and management to develop pilot
programs to document close calls, i.e., unsafe events that do not
result in a reportable accident but very well could have. Participating
railroads will be expected to develop corrective actions to address the
problems that may be revealed. The aggregate data may prove useful in
FRA's decisionmaking concerning regulatory and other options to address
human factor-caused accidents. Experiences on the Norwegian Railway
(Sernbaneverket) showed a 40-percent reduction in accidents after 3
years of implementation of a similar program. In a manufacturing
environment, Syncrude, a mining company, experienced a 33-percent
reduction in lost time frequency after 1 year of implementing a close
call system.
    Amtrak, BLET, and UTU have developed and signed an implementing
memorandum of understanding (IMOU) (based on FRA's overarching MOU) as
a first step in commencing the demonstration pilot project. The project
would involve approximately 1,400 yard; road service, and yardmaster
employees operating within the boundaries of the C3RS pilot
demonstration project as defined below:
    1. South Hampton Street, Boston, MA, from the eastern fouling point
of the diamond at the east end of the yard to the western limits of the
yard including the ``Chute'' track, including loop tracks.
    2. New Haven Parcel G, New Haven, CT, from the westbound home
signal on the lead track east into all yard tracks.
    3. Sunnyside Yard, Long Island City, NY, all tracks in Sunnyside
Yard east of ``F'' Interlocking, including loop tracks.
    4. Penn Coach Yard and Race Street Engine House, Philadelphia, PA,
between South Street and Spring Garden Street, to also include 1 and 2
lead tracks, excluding main tracks.
    5. Washington, DC, all nonsignal tracks that may be accessed
between New York Avenue and Virginia Avenue, exclusive of Station
Tracks 7-30.
    6. Miami, FL, the Miami Amtrak Station Tracks 1-4; all Hialeah Yard
Tracks 1-6, Rip 1-3, the North and South Coach Yard leads. The Amtrak
lead and loop track from a point south of the Amtrak hold-out signal,
located at Milepost SXI033.1, which is the southern end of TCS
territory, on the CSX Transportation Jacksonville Division, Miami
Subdivision.
    7. Los Angeles, CA, roundhouse lead from Control Point (CP) San
Diego Jet south including all tracks in the North Yard, 8th Street S&I
and adjacent tracks, the 90's Yard, Redondo Locomotive Shop, and the PM
Line/Wheel Pit tracks. It would not include the Back Way track within
the limits of CP Olympic.
    8. Chicago, IL, Central Division Limits of Brighton Park Mechanical
Facility; Chicago Terminal from and including 21st Street Interlocking,
to and including CP Canal. The Chicago Terminal also includes all
station tracks in Chicago Union Station and all tracks in the Amtrak
Chicago Yard and mechanical facilities.
    9. Seattle, WA, Seattle King Street Station to Lander Street for
all tracks other than BNSF Railway mainline.
    This IMOU was sent to FRA for consideration and accepted on May 11,
2010. As referenced in the IMOU, certain ``close calls'' may be
properly reported by the employees involved and later discovered by
Amtrak, for example, through subsequent retrospective analysis of
locomotive event recorder data, etc. In order to encourage employee
reporting of close calls, the IMOU contains provisions to shield the
reporting employee from Amtrak discipline. Amtrak, BLET, and UTU also
desire to shield the reporting employees and Amtrak from punitive
sanctions that would otherwise arise as provided in selected sections
of 49 CFR part 240 for properly reported close call events as defined
in the C3RS IMOU. The waiver petition is requested for the duration of
the C3RS Demonstration Project (5 years from implementation or until
the demonstration project is completed, or until parties to the IMOU
withdraw as described in the IMOU, whichever is first).

    Note-- Article 7.2 (of the IMOU) CONDITIONS UNDER WHICH A
REPORTING EMPLOYEE IS NOT PROTECTED FROM AMTRAK DISCIPLINE AND/OR
DECERTIFICATION AND FROM FRA ENFORCEMENT--Amtrak employees included
in this C3RS/IMOU receive no protection from discipline and/or
decertification or from FRA enforcement action when one or more of
the following conditions occur:
    1. The employee's action or lack of action was intended to
damage Amtrak or another entity's operations or equipment or to
injure other individuals, or the employee's action or lack of action
purposely places others in danger (e.g., sabotage).
    2. The employee's action or lack of action involved a criminal
offense.
    3. The employee's behavior involved substance abuse or the
inappropriate use of controlled substances.
    4. The report is rejected in accordance with Article 6.1.
    5. The event resulted in any type of train accident without
regard to monetary damages.
    6. The event caused or is alleged to have caused any injury,
illness, or medical treatment of any kind to any person involved in
the event.
    7. The event resulted in an identifiable release of a hazardous
material.
    8. The event was a real-time observation made by an FRA-
certified inspector or railroad employee, and was reported to and
verified by Amtrak management, except as provided in Article 6.4.

    Amtrak and other parties signatory to the IMOU dated May 11, 2010,
believe the data from these properly reported close call incidents (as
defined in the IMOU) will be invaluable in analysis and development of
effective corrective actions. Without the requested waiver of sanctions
and exemption from mandatory revocation of the engineer's certificate,
the employees involved in the incidents described above will not file a
report of the incidents. The incidents will likely go undetected and
there will be no opportunity for analysis, data trending, or
appropriate corrective actions.
    All parties signatory to the IMOU and participating in the
demonstration pilot project believe that the C3RS Demonstration Project
and granting this waiver petition is in the public interest and
consistent with improving railroad safety. Results of improved safety
performance have also been observed in

other modes of transportation and other industries following the
implementation of C3RS. The Federal Aviation Administration (FAA)
reports numerous safety benefits from their C3RS compared to non-U.S.
flight operations (See FAA Aviation Safety Reporting System Web site).
Examples of C3RS benefits from the U.S. Coast Guard (USCG) have
included: ``Response cost decline 30-40 percent resulting in potential
USCG savings of $12-$16 million and potential shipping industry savings
of $39-$52 million: Potential reduction in seamen injuries and claims
category savings range between 15-45 percent; potential savings
industry-wide scale = $100's of millions.'' All parties believe that
the improvements cited will have a significant impact on safety in
Amtrak operations.
    Interested parties are invited to participate in these proceedings
by submitting written views, data, or comments. FRA does not anticipate
scheduling a public hearing in connection with these proceedings since
the facts do not appear to warrant a hearing. If any interested party
desires an opportunity for oral comment, they should notify FRA, in
writing, before the end of the comment period and specify the basis for
their request.
    All communications concerning these proceedings should identify the
appropriate docket number (e.g., Waiver Petition Docket Number FRA-
2010-0152) and may be submitted by any of the following methods:
     Web site: http://www.regulations.gov. Follow the online
instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: Docket Operations Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC
20590.
     Hand Delivery: 1200 New Jersey Avenue, SE., Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays. Communications received within 45 days of the
date of this notice will be considered by FRA before final action is
taken. Comments received after that date will be considered as far as
practicable. All written communications concerning these proceedings
are available for examination during regular business hours (9 a.m.-5
p.m.) at the above facility. All documents in the public docket are
also available for inspection and copying on the Internet at the docket
facility's Web site at http://www.regulations.gov.
    Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Page 19477-78) or at http://
www.dot.gov/privacy.html.

    Issued in Washington, DC on October 27, 2010.
Robert C. Lauby,
Deputy Associate Administrator for Regulatory and Legislative
Operations.
[FR Doc. 2010-27678 Filed 11-1-10; 8:45 am]
BILLING CODE 4910-06-P