International electric transmission facilities; open access requirement and authority delegation to FERC,
[Federal Register: July 27, 1999 (Volume 64, Number 143)]
[Notices]
[Page 40586-40590]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy99-62]
DEPARTMENT OF ENERGY
[FE Docket No. 99-1]
Proposed Open Access Requirement for International Electric Transmission Facilities and Delegation to the Federal Energy Regulatory Commission
AGENCY: Department of Energy.
ACTION: Notice of Proposed Amendment to Presidential Permits and Export Authorizations and Delegation and Assignment to the Federal Energy Regulatory Commission.
SUMMARY: Notice is given of the Department of Energy's (DOE or Department) intention to amend existing Presidential permits issued for the construction, operation, maintenance, or connection of facilities at the international border for the transmission of electric energy between the United States and foreign countries to require permit holders to provide non-discriminatory open access transmission services. The open access requirement would also be attached to the permit holder's authorization(s) to export electricity. Notice is also given of the delegation and assignment by the Secretary of Energy (Secretary) to the Federal Energy Regulatory Commission (Commission) of the authority to carry out functions of the Secretary related to the implementation and enforcement of this open access requirement. This delegation and assignment rescinds and supersedes a prior delegation of the Secretary to the Commission, which transferred the authority to effectuate open access over the United States portion of the international transmission lines of the El Paso Electric Company.
DATES: Comments, protests, or requests to intervene must be submitted on or before September 27, 1999.
ADDRESSES: Comments, protests or requests to intervene should be addressed as follows: Office of Coal & Power Im/Ex (FE-27), Office of Fossil Energy, U.S. Department of Energy, 1000 Independence Avenue, SW, Washington, DC 20585-0350 (FAX 202-287-5736).
FOR FURTHER INFORMATION CONTACT: Ellen Russell (Program Office) 202- 586-9624 or Michael Skinker (Program Attorney) 202-586-6667.
SUPPLEMENTARY INFORMATION:
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Background
The Secretary has the authority under the Department of Energy Organization Act (DOE Act) (Pub. L. 95-91) to approve or disapprove applications to transmit electricity to a foreign country pursuant to section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)). Moreover, the Secretary has the authority to approve or disapprove applications to construct, operate, maintain, or connect electric transmission facilities at the border between the United States and a foreign country through the issuance of a Presidential permit pursuant to Executive Order (EO) 10485, dated September 3, 1953, as amended by EO 12038, dated February 3, 1978. Under section 202(e) of the FPA, the Secretary may issue necessary or appropriate supplemental orders to modify the terms or conditions of authorizations to export electricity. The export authorizations themselves allow for modification or termination. Under the authority of the EO, the Secretary may attach to the Presidential permit, and the rights granted thereunder, such conditions as the public interest may require.
These functions were originally vested in the Federal Power Commission (FPC). Subsection 301(b) of the DOE Act transferred to, and vested in, the Secretary all the functions of the FPC not specifically vested by the DOE Act in the Commission. The FPC's functions with respect to transmission of electricity to a foreign country and electric transmission facilities at the border were not specifically vested in the Commission by the DOE Act. Furthermore, subsection 402(f) of the DOE Act provides that no function which regulates the export or import of electricity shall be within the jurisdiction of the Commission unless the Secretary assigns such a function to the Commission.
In its Order No. 888 (Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities, FERC Stats. & Regs. para.31,036 (1996)), the Commission required public utilities to provide comparable open access and non-discriminatory transmission service in interstate commerce in order to promote competition. In a later order in response to a request from Enron Power Marketing, Inc. (EPMI) for transmission access across the international transmission facilities of the El Paso Electric Company (EPE), the Commission expressed the opinion that cross-border electric trade ought to be subject to the same principles of comparable open access and non- discrimination that apply to transmission in interstate commerce (See Enron Power Marketing, Inc., 77 FERC para.61,013 (1996)). However, the Commission determined that a gap existed in its authority to require open access from EPE's last substation within the United States up to the border. It further concluded that the Secretary, not the Commission, had the authority to regulate transmission access over the U.S. portion of international transmission lines under section 202(e) of the FPA and under the Executive
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Orders authorizing issuance of Presidential permits.
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Discussion
The Department agrees with these conclusions. As a matter of policy, the Department strongly supports the emergence of a more competitive wholesale electricity market and considers comparable open access and non-discriminatory transmission service for both domestic and international transactions a critical factor in creating and sustaining a competitive market. Thus, the Department supports the application of the Commission's domestic open access policy to the U.S. international transmission facilities. Because the Commission regulates transmission access and the rates, terms, and conditions of transmission service for most of the transmission facilities owned by EPE, the Department concluded that the Commission was the appropriate agency to address the transmission access and related regulatory issues with respect to those cross-border transmission facilities. Therefore, on November 1, 1996, the Secretary delegated and assigned to the Commission the necessary authority to carry out the open access policy and, thus, authorized the Commission to take any further actions that might be necessary to effectuate open access over the United States portion of EPE's cross-border electric transmission lines. (Delegation Order No. 0204-163 (61 FR 56525, November 1, 1996)). In response to that delegation, the Commission ordered EPE to provide non- discriminatory open access transmission services over its international facilities. Consequently, it amended EPE's export authorization (EA-48- I) and EPE's Presidential permits for the lines connecting the Diablo and Ascarate substations in the United States with the Insurgentes and Riverena substations in Mexico (PP-48 and PP-92). (Enron Power Marketing, Inc., 83 FERC para.61,213 (1998)).
Since the time of that delegation, DOE has consistently expressed its policy that cross-border trade in electric energy should be subject to the same principles of comparable open access and non-discrimination that apply to transmission in interstate commerce. DOE has stated this policy in export authorizations granted to entities requesting authority to export over international transmission facilities. In those authorizations, DOE indicated it expected transmitting utilities owning cross-border facilities constructed pursuant to Presidential permits to provide access across the border in accordance with the principles of comparable open access and non-discrimination contained in the FPA and articulated in Commission Order No. 888, as amended.
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Proposed Amendment to Presidential Permits and Export Authorizations
In furtherance of this policy, DOE now intends to condition existing and future Presidential permits issued for international electric transmission facilities appropriate for third party transmission on compliance with a requirement to provide non- discriminatory open access transmission services. This open access requirement would also be attached to the permit holder's authorization(s) to export electricity.
Notice is hereby being given that DOE proposes to amend the following Presidential permits (PP No.), and export authorizations (EA No.) to add the above open access requirement:
Permittee
PP No.\1\
Voltage
Location
EA No.\1\
CANADA:
Avista Corporation (formerly PP-86
230 kV............. Northport, WA (not EA-98 Washington Water Power).
built).
EA-101
Bangor Hydro-Electric
PP-89
345 kV............. Baileyville, ME Company.
(not built)
Basin Electric Power
PP-64
230 kV............. Tioga, ND......... IE-78-5 Cooperative.
Boise Cascade Corporation... PP-96
115 kV............. International Falls, MN
Bonneville Power
PP-10
2-500 kV........... Blaine, WA Administration.
PP-36
230 kV............. Nelway, BC........ PP-46
230 kV............. Nelway, BC........
Bradfield Electric
PP-87
69 kV.............. South Fork Craig Corporation.
River, AK.........
Burke-Divide Electric
PP-177
12.47 kV........... Burke County, ND.. EA-177 Cooperative.
Central Maine Power Company. PP-62
120/240 V.......... Coburn Gore, ME
Citizens Utilities Company.. PP-66
120 kV............. Derby Line, VT.... EA-66 PP-80
25 kV.............. Cannan, VT........ EA-80 25 kV.............. Norton, VT
Detroit Edison Company...... PP-38
345 kV............. St Clair, MI...... EA-58 PP-21
230 kV............. Marysville, MI 230 kV............. Detroit, MI PP-58
345 kV............. St. Clair, MI
Eastern Maine Electric
PP-20
6.9 kV............. Forest City, ME... E-6853 Cooperative.
PP-32
69 kV.............. Calasis, ME
Glacier Electric
PP-18
120/240 V.......... Carway, Alberta... E-6446 Cooperative, Inc.
120/240 V.......... Del Bonita, Alberta.
Hill County Electric
PP-118
69 kV.............. Wild Horse,
EA-118 Cooperative.
Alberta.
Joint Owners of the Highgate PP-82
120 kV (Built for Franklin, VT...... EA-82 Project.
345 kV).
Long Sault Inc.............. PP-24
2-115 kV........... Massena, NY....... E-7022
Maine Electric Power Company PP-43
345 kV............. Houlton, ME....... E-7534
Maine Public Service Company PP-12
69 kV.............. Limestone, ME..... E-6751 69 kV.............. Fort Fairfield, MI IE-78-10 PP-29
138 kV............. Aroostock County, 2-69 kV............ ME PP-81
7.2 kV............. Madawaska, ME River-de-Chute, ME
Marias River Electric
PP-41
6.9 kV............. Sweet Grass, MT... IT-6097 Cooperative.
Minnesota Power, Inc........ PP-78
115 kV............. International EA-78 Falls, MN.
EA-196 E-9534
[[Page 40588]]
Minnkota Power Cooperative, PP-61
230 kV............. Roseau County, MN. E-9535 Inc.
PP-70
12 kV.............. Lake of the Woods E-7482 County, MN.
Netley Corporation.......... PP-23
4.8 kV............. Grindstone Island, E-6616 NY.
New York Power Authority.... PP-25
2-230 kV........... Massena, NY....... PP-30
230 kV............. Devil's Hole, NY.. PP-56
765 kV............. Fort Covington, NY PP-74
2-345 kV........... Niagara Falls, NY.
Niagara Mohawk Power
PP-13
4.8 kV............. Hogansburg, NY.... E-6796 Corporation.
PP-190
230 kV............. Devil's Hole, NY.. PP-24-B 115 kV............. Buffalo, NY 115 kV............. Lewiston, NY 69 kV (25 Hz)...... Devil's Hole, NY 69 kV (25 Hz)...... Lewiston, NY 38 kV (25 Hz)...... Buffalo, NY 13-12 kV (25 Hz)... Rainbow Bridge, NY
North Central Electric
PP-67
12.5 kV............ Dunseith, ND...... Cooperative.
Northern Electric
PP-28
3-7.2 kV........... Valley County, MT. E-6670 Cooperative, Inc.
PP-44
12.4 kV............ St. Louis County, PP-60
2-14.4 kV.......... MN. St. Louis County, MN.
Northern States Power
PP-45
230 kV............. Red River, ND..... E-7482 Company.
PP-63
500 kV............. Roseau County, MN. IE-78-6
Public Utility District No. PP-34
7.2 kV............. Point Roberts, WA. 1 of Pend Oreille County, WA.
Puget Sound Energy.......... PP-6
25 kV.............. Point Roberts, WA. EA-98
Roseau Electric Cooperative, PP-42
7.2 kV............. Roseau County, MN. E-8361 Inc.
PP-55
25 kV.............. Roseau County, MN.
St. Clair Tunnel Company.... PP-994.8 kV............. St Clair, MI...... EA-99
Vermont Electric
PP-69
25 kV.............. Derby Line, VT ................. Cooperative, Inc.
.................. 2-14.4 kV
Vermont Electric
PP-76
‹plus-minus›450 kV Norton, VT........ EA-76 Transmission Company, Inc. .................. DC.
Millbury, MA 345 kV............. West Medway, MA 345 kV............. MEXICO:
Arizona Public Service
PP-106
34.5 kV............ San Louis, AZ..... EA-98 Company.
PP-107
34.5 kV............ Douglas, AZ....... EA-104 PP-108
34.5 kV............ San Louis, AZ..... EA-106 EA-107 EA-108 EA-134
Central Power & Light
PP-94
69 kV.............. Brownsville, TX... EA-94 \2\ Company.
138 kV
Citizens Utilities Company.. PP-16
13 kV.............. Nogales, AZ....... E-6431 PP-40
2.3 kV
.................. E-7370 13.8 kV............ Lochiel, AZ
Comision Federal de
PP-03
12.5 kV............ Presidio, TX...... Electricidad.\2\
PP-50
138 kV............. Eagle Pass, TX PP-51
7.2 kV............. Redford, TX PP-57
138 kV............. Laredo, TX PP-59
12 kV.............. Del Rio, TX PP-75
7.2 kV............. Comstock, TX
El Paso Electric Company\3\. PP-48
115 kV............. El Paso, TX....... EA-48 PP-92
115 kV............. Sunland Park, NM.. EA-98
Imperial Irrigation
PP-90
34.5 kV............ Calexico, CA Districit.
PP-174
2-34.5 kV.......... Calexico, CA
NRG Energy, Inc.\4\......... PP-192
500 kV............. Calexico, CA
Public Service Company of PP-197
345 kV AC, or + 400 Nogales or Sasabe, EA-98 New Mexico.\4\
kV DC.
AZ.
Rio Grande Electric
PP-33
14.4/24.9 kV....... Health Crossing, E-6868 Cooperative, Inc.
PP-53
14.4 kV............ TX.
E-7688 14.4 kV............ Lajitas, TX....... 14.4 kV............ Castolon, TX...... Candelaria, TX....
San Diego Gas & Electric Co. PP-49
12 kV.............. Tijuana, MX....... PP-49-A .................. 12 kV.............. Tecate, MX........ PP-68EA PP-68
230 kV............. Tijuana, MX....... PP-79EA PP-79
230 kV (twinned)... La Rosita, MX..... EA-100
Trico Electric Coop., Inc... PP-35
4.8 kV............. Sasabe, AZ........ E-7073
\1\ These Presidential permit and export authorization numbers refer to the generic DOE number and are intended to include any subsequent amendments. \2\ CFE has a 138 kV line at Falcon Dam, Texas, that was authorized by a treaty. EA-94 authorized Central Power & Light to export over this line. \3\ As discussed herein, El Paso's Presidential permits and its export authorization have already been amended by the FERC to include an open access requirement.
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\4\ These Presidential permits have not been issued yet. Notices of the applications requesting the permits have appeared in the Federal Register. (PP-192--63 FR 46426, 9/1/98; PP-197--64 FR 2476, 1/14/99)
DOE has determined that the open access requirement will not be added to the following Presidential permits, because the lines authorized by those permits are not currently connected to the U.S. domestic electric power system and, thus, are not appropriate for third party transmission.
Permittee
PP No.\1\
Voltage
Location
Boise Cascade Corp............... PP-39
6.6 kV
International Falls, MN British Columbia Hydro & Power PP-22
2-132 kV
Galiano Island, BC Authority.
1-260 kV Dynegy Power Corporation \2\..... PP-188
230 kV
Santa Teresa, NM Fraser Paper Limited............. PP-11
6.6 kV
Madawaska, ME 69 kV Presley, E.T..................... PP-54
4.8 kV
Wellesley Island, NY Sumas Energy 2, Inc.\2\.......... PP-204
2-230 kV
Sumas, WA Westmin Mines, Inc............... PP-85
35 kV
Hyder, AK Frontera Generation LP........... PP-206
2-230 kV
Hidalgo County, TX Wilson-7 Energy Systems \2\...... PP-195
‹plus-minus›600 kV Fort Hancock, TX DC
\1\ These Presidential permit numbers refer to the generic DOE number and are intended to include any subsequent amendments. \2\ These Presidential permits have not been issued yet. Notices of the applications requesting the permits have appeared in the Federal Register. (PP-188--63 FR 37097, 7/9/98; PP-195--63 FR 68260, 12/10/98; PP-204--64 FR 9324, 2/25/99)
DOE is interested in public comments on the proposed action. Any permit holder that believes the open access requirement should not be applied to its facilities should specify in its comments why application of the requirement would not be appropriate or in the public interest. Any holders of Presidential permits that disagree with any of the above information regarding their permits, export authorizations, or international facilities should specify those areas of disagreement and provide any necessary documentation.
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Delegation Order
Section 642 of the DOE Act permits the Secretary to delegate any of the Secretary's functions to any officer or employee of the Department the Secretary may designate, including the Commission. Also, the Secretary's authority to regulate exports of electricity may be assigned in whole or in part to the Commission under subsections 402(e) and (f) of the DOE Act, after public notice of the assignment.
Pursuant to these provisions of the DOE Act, public notice is given that the Secretary delegates and assigns to the Commission the authority to carry out certain functions vested in the Secretary. The assignment is in the form of a delegation, which is effective upon publication of this notice. (see Attachment)
In order to permit uniform implementation and enforcement of the domestic and international open access policy, the Department believes the Commission is the appropriate agency to address the transmission access and related regulatory issues with respect to international transmission of electricity over cross-border facilities. Accordingly, the Secretary is delegating to the Commission the authority under the FPA and EO 10485, as amended by EO 12038, to implement and enforce the requirement imposed by the Department on those international electric transmission lines appropriate for third party transmission to provide non-discriminatory open access transmission services. Specifically, this delegation gives the Commission the authority to regulate access to, and the rates, terms, and conditions for, transmission services over those permitted international electric transmission facilities subject to that requirement to the extent the Commission finds it necessary and appropriate to the public interest. The delegation does not give the Commission authority to revoke, amend, or otherwise modify Presidential permits or electricity export authorizations issued by the Secretary. It also does not give the Commission authority to order expansion of international electric transmission facilities. However, DOE expects the Commission to advise DOE if it concludes that further action by DOE in a particular case is necessary.
This delegation rescinds and supersedes the Secretary's specific delegation to the Commission (Delegation Order No. 0204-163 mentioned above), which was limited to authority over the international transmission lines of EPE; however, it does not rescind, amend or supersede any orders issued by the Commission under that earlier delegation. This delegation amends to the limited extent, but does not otherwise rescind or supersede, the Secretary's prior delegation of authority to regulate exports of electricity to the Assistant Secretary for Fossil Energy (Delegation Order No. 0204-127, February 7, 1989), subdelegated to the Manager, Electric Power Regulation (Delegation Order dated February 7, 1997).
Procedural Matters
Any person desiring to become a party to this proceeding should file a petition to intervene at the address provided above in accordance with section 385.214 of the Commission's Rules of Practice and Procedure (18 CFR 385.214). Any person desiring to be heard regarding this proposed action to amend the Presidential permits or export authorizations may file written comments or protests at the address provided above in accordance with section 385.211 of the Commission's Rules of Practice and Procedure (18 CFR 385.211). Fifteen copies of such petitions and comments or protests should be filedwith the DOE on or before the date listed above. Filings should be clearly marked with this docket number and reference the specific Presidential permit or export authorization to which the intervention, comment, or protest should be applied.
DOE has determined the proposed action is in the public interest and will not adversely impact on the reliability of the U.S. electric power supply system. However, a final decision on the proposed action will not be made until
[[Page 40590]]
the environmental impacts have been evaluated pursuant to the National Environmental Policy Act of 1969. DOE also must obtain the concurrence of the Secretary of State and the Secretary of Defense before taking final action on amending the Presidential permits.
Issued in Washington, D.C., on July 21, 1999. Anthony J. Como, Deputy Director, Electric Power Regulation, Office of Coal & Power Im/ Ex, Office of Coal & Power Systems, Office of Fossil Energy.
Attachment--Department of Energy Delegation Order No. 0204-170 to the Federal Energy Regulatory Commission
Pursuant to the authority vested in me as the Secretary of Energy (Secretary) by sections 642 and 402(e) of the Department of Energy Organization Act (DOE Act) (42 U.S.C. 7252, 7172(e)), there is hereby delegated and assigned to the Federal Energy Regulatory Commission (Commission) the authority to carry out such functions as are necessary to implement and enforce the Secretary's policy requiring holders of Presidential permits authorizing the construction, operation, maintenance, or connection of facilities for the transmission of electric energy between the United States and foreign countries to provide non-discriminatory open access transmission services.
In exercising the authority delegated by this Order the Commission is specifically authorized to utilize the authority of the Secretary under Executive Order (EO) 10485, dated September 3, 1953, as amended by EO 12038, dated February 3, 1978, and section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)) and such other sections of the FPA vested in the Secretary as may be relevant, to regulate access to, and the rates, terms, and conditions for, transmission services over permitted international electric transmission facilities to the extent the Commission finds it necessary and appropriate to the public interest. This authority is delegated to the Commission for the sole purpose of authorizing the Commission to take actions necessary to implement and enforce non-discriminatory open access transmission service over the United States portion of those international electric transmission lines required by the Secretary to provide such service. Nothing in this delegation shall allow the Commission to revoke, amend, or otherwise modify Presidential permits or electricity export authorizations issued by the Secretary. The authority delegated to the Commission may be further delegated within the Commission, in whole or in part, as may be appropriate.
All actions taken pursuant to authority delegated prior to this Order or pursuant to any authority delegated by this Order taken prior to and in effect on the date of this Order are hereby confirmed and ratified, and shall remain in full force and effect as if taken under this Order, unless and until rescinded, amended, or superseded.
Nothing in this Order shall preclude the Secretary from exercising or further delegating any of the authority hereby delegated, whenever, in the Secretary's judgment, the exercise or further delegation of such authority is necessary or appropriate to administer the functions vested in the Secretary.
This Order hereby rescinds and supersedes the previous Secretarial delegation and assignment to the Commission in Delegation Order No. 0204-163, dated November 1, 1996.
This Order is effective on July 27, 1999. Bill Richardson, Secretary of Energy.
[FR Doc. 99-19168Filed7-26-99; 8:45 am]
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