are not properly performing assigned responsibilities.

[Order 580-A, 62 FR 33348, June 19, 1997]

§ 35.33 Specific provisions.

(a) In addition to the general provisions of §35.32, the Trustee must observe the provisions of this section.

(b) The Trustee may use Fund assets only to:

(1) Satisfy the liability of a utility for decommissioning costs of the nuclear power plant to which the Fund relates as provided by § 35.32; and

(2) Pay administrative costs and other incidental expenses, including taxes, of the Fund as provided by § 35.32.

(c) To the extent that the Trustee does not currently require the assets of the Fund for the purposes described in paragraphs (b)(1) and (b)(2) of this section, the Investment Manager, when investing Fund assets, must exercise the same standard of care that a reasonable person would exercise in the same circumstances. In this context, a "reasonable person" means a prudent investor as described in Restatement of the Law (Third), Trusts §227, including general comments and reporter's notes, pages 8-101. St. Paul, MN: American Law Institute Publishers, 1992. ISBN 0314-84246-2. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the American Law Institute, 4025 Chestnut Street, Philadelphia, PA 19104, and are also available in local law libraries. Copies may be inspected at the Federal Energy Regulatory Commission's Library, Room 95-01, 888 First Street, NE. Washington, DC or at the Office of the Federal Register, 800 North Capitol St., NW., Room 700, Washington, DC.

(d) The utility must submit to the Commission by March 31 of each year, one original and three conformed coples of the financial report furnished to the utility by the Fund's Trustee that shows for the previous calendar year:

(1) Fund assets and liabilities at the beginning of the period;

(2) Activity of the Fund during the period, including amounts received from the utility, purchases and sales of investments, gains and losses from in

vestment activity, disbursements from the Fund for decommissioning activity and payment of Fund expenses, including taxes; and

(3) Fund assets and liabilities at the end of the period. The report should not include the liability for decommissioning.

(e) The utility must also mail a copy of the financial report provided to the Commission pursuant to paragraph (d) of this section to anyone who requests it.

(f) If an independent public accountant has expressed an opinion on the report or on any portion of the report, then that opinion must accompany the report.

[Order 580-A, 62 FR 33348, June 19, 1997]

PART 36-RULES CONCERNING APPLICATIONS FOR TRANSMISSION SERVICES UNDER SECTION 211 OF THE FEDERAL POWER ACT

AUTHORITY: 5 U.S.C. 551-557; 16 U.S.C. 791a825r; 31 U.S.C. 9701; 42 U.S.C. 7107-7352.

§ 36.1 Notice provisions applicable to applications for transmission services under section 211 of the Federal Power Act.

(a) Definitions. (1) Affected party means each affected electric utility, each affected State regulatory authority, and each affected Federal power marketing agency.

(2) Affected electric utility means each electric utility that has made arrangements for the sale or purchase of electric energy to be transmitted pursuant to the particular application for transmission services, and each transmitting utility, as defined in section 3(23) of the Federal Power Act, 16 U.S.C. 796(23), being requested to transmit such electric energy.

(3) Affected State regulatory authority means a State regulatory authority, as defined in section 3(21) of the Federal Power Act, 16 U.S.C. 796(21), regulating the rates and charges of each affected electric utility.

(4) Affected Federal power marketing agency means a Federal power marketing agency that operates in the service area of each affected electric utility.

(b) Additional filing requirements. Any person filing an application for transmission services pursuant to section 211 of the Federal Power Act, 16 U.S.C. 824j, shall include the following:

(1) A form of notice suitable for publication in the FEDERAL REGISTER, as well as a copy of the same statement in electronic format (in either ASCII text, WordPerfect 5.1 for DOS or WordPerfect 5.2 for Windows format) on a 31⁄2 diskette marked with the name of the applicant and the words "Notice of Filing." The notice shall state the applicant's name, the date of the application, the names of the affected parties, and a brief description of the transmission services sought. The notice shall be in the following form:

UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY
COMMISSION

[Name of Applicant]

Docket No. TX [ ]-[1-000

NOTICE OF APPLICATION FOR ORDER REQUESTING TRANSMISSION SERVICES

On [date application was filed], [name and address of applicant] filed with the Federal Energy Regulatory Commission an application requesting that the Commission order [name of transmitting utility subject to the request for transmission services] to provide transmission services pursuant to section 211 of the Federal Power Act.

[Brief description of the transmission services sought, including the proposed dates for initiating and terminating the requested transmission services; the total amount of transmission capacity requested; a brief description of the character and nature of the transmission services being requested, and whether the transmission services requested are firm or non-firm.]

Any person desiring to be heard or objecting to the granting of the requested transmission services should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 825 North Capitol Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). All such motions or protests must be filed on or before

and must be served on the applicant. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. Copies of this fil

ing are on file with the Commission and are available for public inspection.

(2) A sworn statement that actual notice, including the applicant's name, the date of the application, the names of the affected parties, and a brief description of the transmission services sought (including the proposed dates for initiating and terminating the requested transmission services, the total amount of transmission capacity requested, a brief description of the character and nature of the transmission services being requested, and whether the transmission services requested are firm or non-firm) has been served, pursuant to Rule 2010 of the Commission's Rules of Practice and Procedure, §385.2010 of this chapter, on each affected party. Such statement shall enumerate each person so served.

(c) Other filing requirements. All other filing requirements of the Commission's Rules of Practice and Procedure remain in effect for applications under this section.

[Order 560, 58 FR 57737, Oct. 27, 1993, as amended by Order 593, 62 FR 1283, Jan. 9, 1997]

EFFECTIVE DATE NOTE: By Order 560, 58 FR 57737, Oct. 27, 1993, §36.1 was added. The section contains information collection and recordkeeping requirements and will not become effective until approval has been given by the Office of Management and Budget.

PART 37-OPEN ACCESS SAMETIME INFORMATION SYSTEMS AND STANDARDS OF CONDUCT FOR PUBLIC UTILITIES

Sec.

37.1 Applicability. 37.2 Purpose.

37.3 Definitions.

37.4 Standards of conduct.

37.5 Obligations of Transmission Providers and Responsible Parties.

37.6 Information to be posted on an OASIS. 37.7 Auditing Transmission Service Information.

AUTHORITY: 16 U.S.C. 791-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.

SOURCE: Order 889, 61 FR 21764, May 10, 1996, unless otherwise noted.

(a) The purpose of this part is to ensure that potential customers of open access transmission service receive access to information that will enable them to obtain transmission service on a non-discriminatory basis from any Transmission Provider. These rules provide standards of conduct and require the Transmission Provider (or its agent) to create and operate an Open Access Same-time Information System (OASIS) that gives all users of the open access transmission system access to the same information.

(b) The OASIS will provide information by electronic means about available transmission capability for pointto-point service and will provide a process for requesting transmission service. OASIS OASIS will enable Transmission Providers and Transmission Customers to communicate promptly requests and responses to buy and sell available transmission capacity offered under the Transmission Provider's tariff.

§ 37.3 Definitions.

(a) Transmission Provider means any public utility that owns, operates, or controls facilities used for the transmission of electric energy in interstate commerce.

(b) Transmission Customer means any eligible customer (or its designated agent) that can or does execute a transmission service agreement or can or does receive transmission service.

(c) Responsible party means the Transmission Provider or an agent to whom the Transmission Provider has delegated the responsibility of meeting any of the requirements of this part.

(d) Reseller means any Transmission Customer who offers to sell transmission capacity it has purchased.

(e) Wholesale merchant function means the sale for resale of electric energy in interstate commerce.

(f) Affiliate means:

(1) For any exempt wholesale generator, as defined under section 32(a) of the Public Utility Holding Company Act of 1935, as amended, the same as provided in section 214 of the Federal Power Act; and

(2) For any other entity, the term affiliate has the same meaning as given in § 161.2(a) of this chapter.

[Order 889, 61 FR 21764, May 10, 1996, as amended by Order 889-A, 62 FR 12503, Mar. 14, 1997]

§ 37.4 Standards of conduct.

A Transmission Provider must conduct its business to conform with the following standards:

(a) General rules. (1) Except as provided in paragraph (a)(2) of this section, the employees of the Transmission Provider engaged in transmission system operations must function independently of its employees, or the employees of any of its affiliates, who engage in Wholesale Merchant Functions.

(2) Notwithstanding any other provisions in this section, in emergency circumstances affecting system reliability, Transmission Providers may take whatever steps are necessary to keep the system in operation. Transmission Providers must report to the Commission and on the OASIS each emergency that resulted in any deviation from the standards of conduct, within 24 hours of such deviation.

(b) Rules governing employee conduct. (1) Prohibitions. Any employee of the Transmission Provider, or any employee of an affiliate, engaged in wholesale merchant functions is prohibited from:

(i) Conducting transmission system operations or reliability functions; and

(ii) Having access to the system control center or similar facilities used for transmission operations or reliability functions that differs in any way from the access available to other open access Transmission Customers.

(2) Transfers. Employees engaged in either wholesale merchant functions or transmission system operations or reliability functions are not precluded from transferring between such functions as long as such transfer is not used as a means to circumvent the

standards of conduct of this section. Notices of any employee transfer to or from transmission system operations or reliability functions must be posted on the OASIS as provided in §37.6(g)(3). The information to be posted must include: the name of the transferring employee, the respective titles held while performing each function (i.e., on behalf of the Transmission Provider and wholesale merchant or affiliate), and the effective date of the transfer. The information posted under this section must remain on the OASIS for 90 days. (3) Information access. Any employee of the Transmission Provider, or of any of its affiliates, engaged in wholesale merchant functions:

(i) Shall have access to only that information available to the Transmission Provider's open access transmission customers (i.e., the information posted on an OASIS), and must not have preferential access to any information about the Transmission Provider's transmission system that is not available to all users of an OASIS; and

(ii) Is prohibited from obtaining information about the Transmission Provider's transmission system (including information about available transmission capability, price, curtailments, ancillary

services, and the like) through access to information not posted on the OASIS that is not otherwise also available to the general public without restriction, or through information through the OASIS that is not also publicly available to all OASIS users.

(4) Disclosure. A Transmission Provider is responsible for ensuring compliance with the following provisions:

(1) Any employee of the Transmission Provider, or any employee of an affiliate, engaged in transmission system operations or reliability functions may not disclose to employees of the Transmission Provider, or any of its affiliates, engaged in wholesale merchant functions any information concerning the transmission system of the Transmission Provider or the transmission system of another (including information received from non-affiliates or information about available transmission capability, price, curtailments, ancillary services, etc.) through nonpublic communications conducted off

the OASIS, through access to information not posted on the OASIS that is not at the same time available to the general public without restriction, or through information on the OASIS that is not at the same time publicly available to all OASIS users (such as Email).

(ii) If an employee of the Transmission Provider engaged in transmission system operations or reliability functions discloses information not posted on the OASIS in a manner contrary to the requirements of the standards of conduct, the Transmission Provider must immediately post such information on the OASIS.

(iii) A Transmission Provider may not share any market information, acquired from nonaffiliated Transmission Customers or potential nonaffiliated Transmission Customers, or developed in the course of responding to requests for transmission or ancillary service on the OASIS, with its own employees (or those of an affiliate) engaged in merchant functions, except to the limited extent information is required to be posted on the OASIS in response to a request for transmission service or ancillary services.

(5) Implementing tariffs. (1) Employees of the Transmission Provider engaged in transmission system operations or reliability functions must strictly enforce all tariff provisions relating to the sale or purchase of open access transmission service, if these provisions do not provide for the use of discretion.

(ii) Employees of the Transmission Provider engaged in transmission system operations must apply all tariff provisions relating to the sale or purchase of open access transmission service in a fair and impartial manner that treats all customers (including the public utility and any affiliate) in a non-discriminatory manner, if these provisions involve discretion.

(iii) The Transmission Provider must keep a log, available for Commission audit, detailing the circumstances and manner in which it exercised its discretion under any terms of the tariff. The information contained in this log is to be posted on the OASIS as provided in §37.6(g)(4).

(iv) The Transmission Provider may not, through its tariffs or otherwise, give preference to sales for resale by the wholesale merchant function or by any affiliate, over the interests of any other wholesale customer in matters relating to the sale or purchase of transmission service (including issues of price, curtailments, scheduling, priority, ancillary services, etc.).

(6) Books and records. A Transmission Provider must maintain its books of account and records (as prescribed under parts 101 and 125 of this chapter) separately from those of its affiliates and these must be available for Commission inspection.

(c) Maintenance of written procedures. The Transmission Provider must maintain in a public place, and file with the Commission, current written procedures implementing the standards of conduct in such detail as will enable customers and the Commission to determine that the Transmission Provider is in compliance with the requirements of this section.

[Order 889, 61 FR 21764, May 10, 1996, as amended by Order 889-A, 62 FR 12503, Mar. 14, 1997]

§ 37.5 Obligations of Transmission Providers and Responsible Parties.

(a) Each Transmission Provider is required to provide for the operation of an OASIS, either individually or jointly with other Transmission Providers, in accordance with the requirements of this Part. The Transmission Provider may delegate this responsibility to a Responsible Party such as another Transmission Provider, an Independent System Operator, a Regional Transmission Group, or a Regional Reliability Council.

(b) A Responsible Party must:

(1) Provide access to an OASIS providing standardized information relevant to the availability of transmission capacity, prices, and other information (as described in this part) pertaining to the transmission system for which it is responsible; and

(2) Shall operate the OASIS in compliance with the standardized procedures and protocols found in OASIS Standards and Communication Protocols, which can be obtained from the Public Reference and Files Mainte

nance Branch, Room 2A, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

(c) Transmission Providers must provide "read only" access to the OASIS to Commission staff and the staffs of State regulatory authorities, at no cost, after such staff members have complied with the requisite registration procedures.

§ 37.6 Information to be posted on an OASIS.

(a) The information posted on the OASIS must be in such detail as to allow Transmission Customers to:

(1) Make requests for transmission services offered by Transmission Providers, Resellers and other providers of ancillary services;

(2) View and download in standard formats, using standard protocols, information regarding the transmission system necessary to enable prudent business decision making;

(3) Post, view, upload and download information regarding available products and desired services;

(4) Clearly identify the degree to which their transmission service requests or schedules were denied or interrupted; and

(5) Obtain access, in electronic format, to information to support available transmission capability calculations and historical transmission service requests and schedules for various audit purposes.

(b) Posting transmission capability. The transmission capability that is expected to be available on the Transmission Provider's system (ATC) and the total transmission capability (TTC) of that system shall be calculated and posted for each Posted Path as set out in this section.

(1) Definitions. For purposes of this section the terms listed below have the following meanings:

(i) Posted path means any control area to control area interconnection; any path for which service is denied, curtailed or interrupted for more than 24 hours in the past 12 months; and any path for which a customer requests to have ATC or TTC posted. For this last category, the posting must continue for 180 days and thereafter until 180 days have elapsed from the most recent