Common use of Commission Determination Clause in Contracts

Commission Determination. 28. We accept NERC’s proposed amendments to CMEP section 3.4, with conditions. With respect to ▇▇▇▇’s proposed changes to section 3.4, we repeat our commitment in the March 21 Order to work together with Canadian and Mexican reliability authorities to develop procedures under which the Commission receives notice that an Applicable Governmental Authority outside the United States wishes to obtain information from or about a U.S.-based Registered Entity for purposes of conducting an investigation and, conversely, that appropriate Canadian or Mexican authorities receive notice that the Docket No. RR06-1-016, et al. -12- Commission seeks information about an entity registered in Canada or Mexico for the same purpose. 29. NERC’s revisions to CMEP section 3.4 include appropriate notification procedures with respect to the proposed disclosure by NERC of compliance-related information it receives. As we directed in the March 21 Order, these notice procedures require NERC to address how it would protect from public disclosure non-public, compliance-related information for entities subject to Reliability Standards, whether registered in Canada, Mexico or the United States. 30. NERC properly includes in the description of its proposed notices the nature of the U.S.–related compliance information NERC would disclose to a Canadian or Mexican reliability authority and the procedures NERC would use to ensure that its disclosure complies with section 39.7(b)(4) of our regulations. In this regard, we require that NERC identify in these notices each particular Applicable Governmental Authority to which it proposes to disclose this information and the specific procedures for protecting from public disclosure any non-public compliance information that would be transferred. Moreover, our acceptance of NERC’s amendments to section 3.4 does not constitute our prior permission for NERC to transfer information obtained in investigations about U.S. entities to Canadian or Mexican reliability authorities. We note, in this regard, that NERC has not yet explained how it would protect from public disclosure non-public U.S. compliance information subject to section 39.7(b)(4). We require NERC to submit this explanation in its compliance filing. 31. We also agree that the reciprocal procedure NERC proposes to notify a Canadian or Mexican Applicable Governmental Authority that the Commission or its staff requests NERC to provide compliance-related information for an entity within that authority’s jurisdiction appropriately addresses how NERC’s disclosure of this information to the Commission would comply with the governmental authority’s regulations or other applicable law concerning disclosure of non-public compliance information. 32. We note that the FPA and Part 1b of the Commission’s regulations, not the CMEP, govern the procedures for an investigation that the Commission or its staff may commence into a possible violation of a Reliability Standard. Such an investigation would not necessarily fit within the CMEP’s definition of a Compliance Violation Investigation. Therefore, we direct NERC to substitute “investigation” for “Compliance Violation Investigation” when NERC refers to a Commission investigation in section 3.4. 33. We stress that the new notice procedures in section 3.4 cover only the international transfer of compliance-related information that NERC or a Regional Entity, through NERC, would disclose to an Applicable Governmental Authority. Nothing in the CMEP Docket No. RR06-1-016, et al. -13- prevents the Commission and Canadian and Mexican reliability authorities from entering into intergovernmental agreements to exchange compliance-related information on a reciprocal basis that recognizes the international nature of NERC and affected Regional Entities and their roles in enforcing mandatory Reliability Standards.18 34. We accept NERC’s amendments to CMEP section 2.0, subject to conditions and the following observations. First, we note that revised section 2.0 will apply to NERC’s disclosure to a Canadian or Mexican reliability authority of U.S. compliance-related information developed by any of the compliance monitoring or enforcement activities set forth in the CMEP that “pertains to a Registered Entity or a portion of the Bulk-Power System over which the Applicable Governmental Authority has jurisdiction.” Likewise, revised section 2.0 will establish reciprocal provisions for the disclosure of such Canadian or Mexican compliance-related information to the Commission and its staff. 35. We observe that, unlike section 3.4 (which relates to investigations), revised section 2.0 does not require notice to the Commission or Canadian and Mexican authorities of specific CMEP compliance or enforcement activities that could trigger disclosure of non-public compliance information. Rather, revised section 2.0 would allow NERC to make, on an ongoing basis, international transfers of compliance-related information it obtains pursuant to the CMEP, if the conditions set forth in section 2.0 for these transfers are met. Our acceptance of revised section 2.0 does not constitute our prior permission for NERC to transfer non-public compliance information about U.S. entities to foreign reliability authorities, because NERC has not yet explained how it would protect from public disclosure non-public U.S. compliance information subject to section 39.7(b)(4). We require NERC to submit this explanation in its compliance filing. We observe that revised section 2.0 does not prohibit NERC’s cross-border transfer of information that is not directly related to a specific Registered Entity’s compliance with a requirement of a Reliability Standard. 36. We decline CEA’s suggestion to delete the phrase “including FERC” from the third sentence of NERC’s proposed revision to section 2.0. First, deletion of this phrase would not change the meaning of the sentence, which permits NERC, under appropriate conditions, to transfer compliance information relating to non-U.S. entities to the Commission, as the applicable governmental entity for the United States. Moreover, even if deletion of this phrase would preclude the Commission from receiving compliance information relating to non-U.S. entities, the first sentence of NERC’s proposed insert would still enable NERC to provide U.S. compliance information to 18 See March 21 Order, 122 FERC ¶ 61,245 at P 46. Docket No. RR06-1-016, et al. -14- Canadian and Mexican authorities. Section 2.0 would thereby lose its reciprocity as between the Commission and Canadian and Mexican entities. 37. For the reasons discussed above, regarding NERC’s revisions to CMEP section 2.0, we accept NERC’s proposed revisions to CMEP sections 3.1.6, 3.4.1, 5.1, 5.4, 5.6 and 8.0. These revisions are similar to NERC’s section 2.0 revisions but apply to specific notices and reports that the CMEP requires NERC to provide to the Commission with respect to U.S. compliance matters. We disagree with CEA that NERC’s proposed changes to section 3.4.1, step 12, 5.1, 5.4, 5.6 and 8.0 require NERC automatically to provide the Commission with non-U.S. information about compliance matters that do not fall within the Commission’s jurisdiction. Revised section 5.1, for example, would provide that NERC may provide to the Commission a Notice of Alleged Violation issued to a Canadian entity only if the Applicable Governmental Authority with jurisdiction over the Canadian entity or the portion of the Bulk-Power System to which the notice pertains approved in advance the Commission’s receipt of the notice, subject to any limitations placed on the transfer by the applicable Canadian authority or other law of the Canadian jurisdiction. 38. The wording changes CEA suggests to section 5.1 and other provisions are not necessary to ensure that the Commission’s receipt of Canadian compliance information is subject to prior approval by the relevant Canadian reliability authority under conditions set by that authority and by applicable Canadian law. In addition, as in revised section 2.0, each international disclosure by NERC of compliance information pursuant to these revised provisions is on the condition that the information pertains to a Registered Entity or a portion of the Bulk-Power System over which the Applicable Governmental Authority that would receive the information has jurisdiction. All non-U.S. compliance information the Commission would receive under these provisions must pertain to a Registered Entity or a portion of the Bulk-Power System over which the Commission has jurisdiction. Accordingly, we reject as unnecessary CEA’s proposed amendments to these provisions.

Commission Determination. 28. We accept NERC’s proposed amendments to CMEP section 3.4, with conditions. With respect to ▇▇▇▇NERC’s proposed changes to section 3.4, we repeat our commitment in the March 21 Order to work together with Canadian and Mexican reliability authorities to develop procedures under which the Commission receives notice that an Applicable Governmental Authority outside the United States wishes to obtain information from or about a U.S.-based Registered Entity for purposes of conducting an investigation and, conversely, that appropriate Canadian or Mexican authorities receive notice that the Docket No. RR06-1-016, et al. -12- Commission seeks information about an entity registered in Canada or Mexico for the same purpose. 29. NERC’s revisions to CMEP section 3.4 include appropriate notification procedures with respect to the proposed disclosure by NERC of compliance-related information it receives. As we directed in the March 21 Order, these notice procedures require NERC to address how it would protect from public disclosure non-public, compliance-related information for entities subject to Reliability Standards, whether registered in Canada, Mexico or the United States. 30. NERC properly includes in the description of its proposed notices the nature of the U.S.–related compliance information NERC would disclose to a Canadian or Mexican reliability authority and the procedures NERC would use to ensure that its disclosure complies with section 39.7(b)(4) of our regulations. In this regard, we require that NERC identify in these notices each particular Applicable Governmental Authority to which it proposes to disclose this information and the specific procedures for protecting from public disclosure any non-public compliance information that would be transferred. Moreover, our acceptance of NERC’s amendments to section 3.4 does not constitute our prior permission for NERC to transfer information obtained in investigations about U.S. entities to Canadian or Mexican reliability authorities. We note, in this regard, that NERC has not yet explained how it would protect from public disclosure non-public U.S. compliance information subject to section 39.7(b)(4). We require NERC to submit this explanation in its compliance filing. 31. We also agree that the reciprocal procedure NERC proposes to notify a Canadian or Mexican Applicable Governmental Authority that the Commission or its staff requests NERC to provide compliance-related information for an entity within that authority’s jurisdiction appropriately addresses how NERC’s disclosure of this information to the Commission would comply with the governmental authority’s regulations or other applicable law concerning disclosure of non-public compliance information. 32. We note that the FPA and Part 1b of the Commission’s regulations, not the CMEP, govern the procedures for an investigation that the Commission or its staff may commence into a possible violation of a Reliability Standard. Such an investigation would not necessarily fit within the CMEP’s definition of a Compliance Violation Investigation. Therefore, we direct NERC to substitute “investigation” for “Compliance Violation Investigation” when NERC refers to a Commission investigation in section 3.4. 33. We stress that the new notice procedures in section 3.4 cover only the international transfer of compliance-related information that NERC or a Regional Entity, through NERC, would disclose to an Applicable Governmental Authority. Nothing in the CMEP Docket No. RR06-1-016, et al. -13- prevents the Commission and Canadian and Mexican reliability authorities from entering into intergovernmental agreements to exchange compliance-related information on a reciprocal basis that recognizes the international nature of NERC and affected Regional Entities and their roles in enforcing mandatory Reliability Standards.18 34. We accept NERC’s amendments to CMEP section 2.0, subject to conditions and the following observations. First, we note that revised section 2.0 will apply to NERC’s disclosure to a Canadian or Mexican reliability authority of U.S. compliance-related information developed by any of the compliance monitoring or enforcement activities set forth in the CMEP that “pertains to a Registered Entity or a portion of the Bulk-Power System over which the Applicable Governmental Authority has jurisdiction.” Likewise, revised section 2.0 will establish reciprocal provisions for the disclosure of such Canadian or Mexican compliance-related information to the Commission and its staff. 35. We observe that, unlike section 3.4 (which relates to investigations), revised section 2.0 does not require notice to the Commission or Canadian and Mexican authorities of specific CMEP compliance or enforcement activities that could trigger disclosure of non-public compliance information. Rather, revised section 2.0 would allow NERC to make, on an ongoing basis, international transfers of compliance-related information it obtains pursuant to the CMEP, if the conditions set forth in section 2.0 for these transfers are met. Our acceptance of revised section 2.0 does not constitute our prior permission for NERC to transfer non-public compliance information about U.S. entities to foreign reliability authorities, because NERC has not yet explained how it would protect from public disclosure non-public U.S. compliance information subject to section 39.7(b)(4). We require NERC to submit this explanation in its compliance filing. We observe that revised section 2.0 does not prohibit NERC’s cross-border transfer of information that is not directly related to a specific Registered Entity’s compliance with a requirement of a Reliability Standard. 36. We decline CEA’s suggestion to delete the phrase “including FERC” from the third sentence of NERC’s proposed revision to section 2.0. First, deletion of this phrase would not change the meaning of the sentence, which permits NERC, under appropriate conditions, to transfer compliance information relating to non-U.S. entities to the Commission, as the applicable governmental entity for the United States. Moreover, even if deletion of this phrase would preclude the Commission from receiving compliance information relating to non-U.S. entities, the first sentence of NERC’s proposed insert would still enable NERC to provide U.S. compliance information to 18 See March 21 Order, 122 FERC ¶ 61,245 at P 46. Docket No. RR06-1-016, et al. -14- Canadian and Mexican authorities. Section 2.0 would thereby lose its reciprocity as between the Commission and Canadian and Mexican entities. 37. For the reasons discussed above, regarding NERC’s revisions to CMEP section 2.0, we accept NERC’s proposed revisions to CMEP sections 3.1.6, 3.4.1, 5.1, 5.4, 5.6 and 8.0. These revisions are similar to NERC’s section 2.0 revisions but apply to specific notices and reports that the CMEP requires NERC to provide to the Commission with respect to U.S. compliance matters. We disagree with CEA that NERC’s proposed changes to section 3.4.1, step 12, 5.1, 5.4, 5.6 and 8.0 require NERC automatically to provide the Commission with non-U.S. information about compliance matters that do not fall within the Commission’s jurisdiction. Revised section 5.1, for example, would provide that NERC may provide to the Commission a Notice of Alleged Violation issued to a Canadian entity only if the Applicable Governmental Authority with jurisdiction over the Canadian entity or the portion of the Bulk-Power System to which the notice pertains approved in advance the Commission’s receipt of the notice, subject to any limitations placed on the transfer by the applicable Canadian authority or other law of the Canadian jurisdiction. 38. The wording changes CEA suggests to section 5.1 and other provisions are not necessary to ensure that the Commission’s receipt of Canadian compliance information is subject to prior approval by the relevant Canadian reliability authority under conditions set by that authority and by applicable Canadian law. In addition, as in revised section 2.0, each international disclosure by NERC of compliance information pursuant to these revised provisions is on the condition that the information pertains to a Registered Entity or a portion of the Bulk-Power System over which the Applicable Governmental Authority that would receive the information has jurisdiction. All non-U.S. compliance information the Commission would receive under these provisions must pertain to a Registered Entity or a portion of the Bulk-Power System over which the Commission has jurisdiction. Accordingly, we reject as unnecessary CEA’s proposed amendments to these provisions.

Commission Determination. 28. We accept NERC’s proposed amendments to CMEP section 3.4, with conditions. With respect to ▇▇▇▇’s proposed changes to section 3.4, we repeat our commitment in the March 21 Order to work together with Canadian and Mexican reliability authorities to develop procedures under which the Commission receives notice that an Applicable Governmental Authority outside the United States wishes to obtain information from or about a U.S.-based Registered Entity for purposes of conducting an investigation and, conversely, that appropriate Canadian or Mexican authorities receive notice that the Docket No. RR06-1-016, et al. -12- Commission seeks information about an entity registered in Canada or Mexico for the same purpose. 29. NERC’s revisions to CMEP section 3.4 include appropriate notification procedures with respect to the proposed disclosure by NERC of compliance-related information it receives. As we directed in the March 21 Order, these notice procedures require NERC to address how it would protect from public disclosure non-public, compliance-related information for entities subject to Reliability Standards, whether registered in Canada, Mexico or the United States. 30. NERC properly includes in the description of its proposed notices the nature of the U.S.–related compliance information NERC would disclose to a Canadian or Mexican reliability authority and the procedures NERC would use to ensure that its disclosure complies with section 39.7(b)(4) of our regulations. In this regard, we require that NERC identify in these notices each particular Applicable Governmental Authority to which it proposes to disclose this information and the specific procedures for protecting from public disclosure any non-public compliance information that would be transferred. Moreover, our acceptance of NERC’s amendments to section 3.4 does not constitute our prior permission for NERC to transfer information obtained in investigations about U.S. entities to Canadian or Mexican reliability authorities. We note, in this regard, that NERC has not yet explained how it would protect from public disclosure non-public U.S. compliance information subject to section 39.7(b)(4). We require NERC to submit this explanation in its compliance filing. 31. We also agree that the reciprocal procedure NERC proposes to notify a Canadian or Mexican Applicable Governmental Authority that the Commission or its staff requests NERC to provide compliance-related information for an entity within that authority’s jurisdiction appropriately addresses how NERC’s disclosure of this information to the Commission would comply with the governmental authority’s regulations or other applicable law concerning disclosure of non-public compliance information. 32. We note that the FPA and Part 1b of the Commission’s regulations, not the CMEP, govern the procedures for an investigation that the Commission or its staff may commence into a possible violation of a Reliability Standard. Such an investigation would not necessarily fit within the CMEP’s definition of a Compliance Violation Investigation. Therefore, we direct NERC to substitute “investigation” for “Compliance Violation Investigation” when NERC refers to a Commission investigation in section 3.4. 33. We stress that the new notice procedures in section 3.4 cover only the international transfer of compliance-related information that NERC or a Regional Entity, through NERC, would disclose to an Applicable Governmental Authority. Nothing in the CMEP Docket No. RR06-1-016, et al. -13- prevents the Commission and Canadian and Mexican reliability authorities from entering into intergovernmental agreements to exchange compliance-related information on a reciprocal basis that recognizes the international nature of NERC and affected Regional Entities and their roles in enforcing mandatory Reliability Standards.18 34. We accept NERC’s amendments to CMEP section 2.0, subject to conditions and the following observations. First, we note that revised section 2.0 will apply to NERC’s disclosure to a Canadian or Mexican reliability authority of U.S. compliance-related information developed by any of the compliance monitoring or enforcement activities set forth in the CMEP that “pertains to a Registered Entity or a portion of the Bulk-Power System over which the Applicable Governmental Authority has jurisdiction.” Likewise, revised section 2.0 will establish reciprocal provisions for the disclosure of such Canadian or Mexican compliance-related information to the Commission and its staff. 35. We observe that, unlike section 3.4 (which relates to investigations), revised section 2.0 does not require notice to the Commission or Canadian and Mexican authorities of specific CMEP compliance or enforcement activities that could trigger disclosure of non-public compliance information. Rather, revised section 2.0 would allow NERC to make, on an ongoing basis, international transfers of compliance-related information it obtains pursuant to the CMEP, if the conditions set forth in section 2.0 for these transfers are met. Our acceptance of revised section 2.0 does not constitute our prior permission for NERC to transfer non-public compliance information about U.S. entities to foreign reliability authorities, because NERC has not yet explained how it would protect from public disclosure non-public U.S. compliance information subject to section 39.7(b)(4). We require NERC to submit this explanation in its compliance filing. We observe that revised section 2.0 does not prohibit NERC’s cross-border transfer of information that is not directly related to a specific Registered Entity’s compliance with a requirement of a Reliability Standard. 36. We decline CEA’s suggestion to delete the phrase “including FERC” from the third sentence of NERC’s proposed revision to section 2.0. First, deletion of this phrase would not change the meaning of the sentence, which permits NERC, under appropriate conditions, to transfer compliance information relating to non-U.S. entities to the Commission, as the applicable governmental entity for the United States. Moreover, even if deletion of this phrase would preclude the Commission from receiving compliance information relating to non-U.S. entities, the first sentence of NERC’s proposed insert would still enable NERC to provide U.S. compliance information to 18 See March 21 Order, 122 FERC ¶ 61,245 at P 46. Docket No. RR06-1-016, et al. -14- Canadian and Mexican authorities. Section 2.0 would thereby lose its reciprocity as between the Commission and Canadian and Mexican entities. 37. For the reasons discussed above, regarding NERC’s revisions to CMEP section 2.0, we accept NERC’s proposed revisions to CMEP sections 3.1.6, 3.4.1, 5.1, 5.4, 5.6 and 8.0. These revisions are similar to NERC’s section 2.0 revisions but apply to specific notices and reports that the CMEP requires NERC to provide to the Commission with respect to U.S. compliance matters. We disagree with CEA that NERC’s proposed changes to section 3.4.1, step 12, 5.1, 5.4, 5.6 and 8.0 require NERC automatically to provide the Commission with non-U.S. information about compliance matters that do not fall within the Commission’s jurisdiction. Revised section 5.1, for example, would provide that NERC may provide to the Commission a Notice of Alleged Violation issued to a Canadian entity only if the Applicable Governmental Authority with jurisdiction over the Canadian entity or the portion of the Bulk-Power System to which the notice pertains approved in advance the Commission’s receipt of the notice, subject to any limitations placed on the transfer by the applicable Canadian authority or other law of the Canadian jurisdiction. 38. The wording changes CEA suggests to section 5.1 and other provisions are not necessary to ensure that the Commission’s receipt of Canadian compliance information is subject to prior approval by the relevant Canadian reliability authority under conditions set by that authority and by applicable Canadian law. In addition, as in revised section 2.0, each international disclosure by NERC of compliance information pursuant to these revised provisions is on the condition that the information pertains to a Registered Entity or a portion of the Bulk-Power System over which the Applicable Governmental Authority that would receive the information has jurisdiction. All non-U.S. compliance information the Commission would receive under these provisions must pertain to a Registered Entity or a portion of the Bulk-Power System over which the Commission has jurisdiction. Accordingly, we reject as unnecessary CEA’s proposed amendments to these provisions.