(Congressional
Record, March 14, 2002, page S1872)
The
ACTING PRESIDENT pro tempore. Under the previous order, the Senator from
Wyoming, Mr. Thomas, is recognized to offer an amendment.
AMENDMENT NO. 3012 TO AMENDMENT NO. 2917
Mr. THOMAS. Madam President, I send to the
desk an amendment.
The ACTING PRESIDENT pro tempore. The clerk
will report.
The legislative clerk read as follows:
The Senator from Wyoming [Mr. THOMAS], for
himself and Mr. Murkowski, proposes an amendment numbered 3012.
Mr. THOMAS. I ask unanimous consent the
reading of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without
objection, it is so ordered.
The amendment is as follows:
On page 21, strike line 16 and all that
follows through page 23, line 24 and insert the following:
``Part II of the Federal Power Act (16
U.S.C. 824 et seq.) is amended by inserting the following after section 215 as
added by this Act:
``SEC. 216. ELECTRIC RELIABILITY.
``(a) DEFINITIONS.--For purposes of this
section--
``(1) `bulk-power system' means the network
of interconnected transmission facilities and generating facilities;
``(2) `electric reliability organization'
means a self-regulating organization certified by the Commission under
subsection (c) whose purpose is to promote the reliability of the bulk power
system; and
``(3) `reliability standard' means a
requirement to provide for reliable operation of the bulk power system approved
by the Commission under this section.
``(b) JURISDICTION AND APPLICABILITY.--The
Commission shall have jurisdiction, within the United States, over an electric
reliability organization, any regional entities, and all users, owners and
operators of the bulk power system, including but not limited to the entities
described in section 201(f), for purposes of approving reliability standards
and enforcing compliance with this section. All users, owners and operators of
the bulk-power system shall comply with reliability standards that take effect
under this
section.
``(c) CERTIFICATION.--
``(1) The Commission shall issue a final
rule to implement the requirements of this section not later than 180 days
after the date of enactment of this section.
``(2) Following the issuance of a
Commission rule under paragraph (1), any person may submit an application to
the Commission for certification as an electric reliability organization. The
Commission may certify an applicant if the Commission determines that the
applicant--
``(A) has the ability to develop, and
enforce reliability standards that provide for an adequate level of reliability
of the bulk-power system;
``(B) has established rules that--
``(i) assure its independence of the users
and owners and operators of the bulk power system; while assuring fair
stakeholder representation in the selection of its directors and balanced
decision-making in any committee or subordinate organizational structure;
``(ii) allocate equitably dues, fees, and
other charges among end users for all activities under this section;
``(iii) provide fair and impartial
procedures for enforcement of reliability standards through imposition of
penalties (including limitations on activities, functions, or operations, or
other appropriate sanctions); and
``(iv) provide for reasonable notice and
opportunity for public comment, due process, openness, and balance of interests
in developing reliability standards and otherwise exercising its duties.
``(3) If the Commission receives two or
more timely applications that satisfy the requirements of this subsection, the
Commission shall approve only the application it concludes will best implement
the provisions of this section.
``(d) RELIABILITY STANDARDS.--
``(1) An electric reliability organization
shall file a proposed reliability standard or modification to a reliability
standard with the Commission.
``(2) The Commission may approve a proposed
reliability standard or modification to a reliability standard if it determines
that the standard is just, reasonable, not unduly discriminatory or
preferential, and in the public interest. The Commission shall give due weight
to the technical expertise of the electric reliability organization with
respect to the content of a proposed standard or modification to a reliability
standard, but shall not defer with respect to its effect on competition.
``(3) The electric reliability organization
and the Commission shall rebuttably presume that a proposal from a regional
entity organized on an interconnection-wide basis for a reliability standard or
modification to a reliability standard to be applicable on an
Interconnection-wide basis is just, reasonable, and not unduly discriminatory
or preferential, and in the public interest.
``(4) The Commission shall remand to the
electric reliability organization for further consideration a proposed
reliability standard or a modification to a reliability standard that the
Commission disapproves in whole or in part.
``(5) The Commission, upon its own motion
or upon complaint, may order an electric reliability organization to submit to
the Commission a proposed reliability standard or a modification to a
reliability standard that addresses a specific matter if the Commission
considers such a new or modified reliability standard appropriate to carry out
this section.
``(e) ENFORCEMENT.--
``(1) An electric reliability organization
may impose a penalty on a user or operator of the bulk power system if the
electric reliability organization, after notice and an opportunity for a
hearing--
``(A) finds that the user or owner or
operator of the bulk power system has violated a reliability standard approved
by the Commission under subsection (d); and
``(B) files notice with the Commission,
which shall affirm, set aside or modify the action.
``(2) On its own motion or upon complaint,
the Commission may order compliance with a reliability standard and may impose
a penalty against a user or owner or operator of the bulk power system, if the
Commission finds, after notice and opportunity for a hearing, that the user or
owner or operator of the bulk power system has violated or threatens to violate
a reliability standard.
``(3) The Commission shall establish
regulations authorizing the electric reliability organization to enter into an
agreement to delegate authority to a regional entity for the purpose of
proposing and enforcing reliability standards (including related activities) if
the regional entity satisfies the provisions of subsection (c)(2)(A) and (B)
and the agreement promotes effective and efficient administration of bulk power
system reliability, and may modify such delegation. The electric reliability
organization and the Commission shall rebuttably presume that a proposal for
delegation to a regional entity organized on an interconnection-wide basis
promotes effective and efficient administration of bulk power system
reliability and should be approved. Such regulation may provide that the
Commission may assign the electric reliability organization's authority to
enforce reliability standards directly to a regional entity consistent with the
requirements of this paragraph.
``(4) The Commission may take such action
as is necessary or appropriate against the electric reliability organization or
a regional entity to ensure compliance with a reliability standard or any
Commission order affecting the electric reliability organization or a regional
entity.
``(f) CHANGES IN ELECTRICITY RELIABILITY
ORGANIZATION RULES.--An electric reliability organization shall file with the
Commission for approval any proposed rule or proposed rule change, accompanied
by an explanation of its basis and purpose. The Commission, upon its own motion
or complaint, may propose a change to the rules of the electric reliability
organization. A proposed rule or proposed rule change shall take effect upon a
finding by the Commission, after notice and opportunity for comment, that the
change is just, reasonable, not unduly discriminatory or preferential, is in
the public interest, and satisfies the requirements of subsection (c)(2).
``(g) COORDINATION WITH CANADA AND
MEXICO.--
``(1) The electric reliability organization
shall take all appropriate steps to gain recognition in Canada and Mexico.
``(2) The President shall use his best
efforts to enter into international agreements with the governments of Canada
and Mexico to provide for effective compliance with reliability standards and
the effectiveness of the electric reliability organization in the United States
and Canada or Mexico.
``(h) RELIABILITY REPORTS.--The electric
reliability organization shall conduct periodic assessments of the reliability
and adequacy of the interconnected bulk-power system in North America.
``(i) SAVINGS PROVISIONS.--
``(1) The electric reliability organization
shall have authority to develop and enforce compliance with standards for the
reliable operation of only the bulk-power system.
``(2) This section does not provide the electric
reliability organization or the Commission with the authority to order the
construction of additional generation or transmission capacity or to set and
enforce compliance with standards for adequacy or safety of electric facilities
or services.
``(3) Nothing in this section shall be
construed to preempt any authority of any State to take action to ensure the
safety, adequacy, and reliability of electric service within that State, as
long as such action is not inconsistent with any reliability standard.
``(4) Within 90 days of the application of
the electric reliability organization or other affected party, and after notice
and opportunity for comment, the Commission shall issue a final order
determining whether a state action is inconsistent with a reliability standard,
taking into consideration any recommendations of the electric reliability
organization.
``(5) The Commission, after consultation
with the electric reliability organization, may stay the effectiveness of any
state action, pending the Commission's issuance of a final order.
``(j) APPLICATION OF ANTITRUST LAWS.--
[Page:
S1873]
``(1) IN GENERAL.--To the extent undertaken
to develop, implement, or enforce a reliability standard, each of the following
activities shall not, in any action under the antitrust laws, be deemed illegal
per se:
``(A) activities undertaken by an electric
reliability organization under this section, and
``(B) activities of a user or owner or
operator of the bulk power system undertaken in good faith under the rules of
an electric reliability organization.
``(2) RULE OF REASON.--In any action under
the antitrust laws, an activity described in paragraph (1) shall be judged on
the basis of its reasonableness, taking into account all relevant factors
affecting competition and reliability.
``(3) DEFINITION.--For purposes of this subsection, `antitrust laws' has the meaning given the term in subsection (a) of the first section of the Clayton Act (15 U.S.C. 12(a)), except that it includes section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to the extent that section 5 applies to unfair methods of competition.
``(k) REGIONAL ADVISORY BODIES.--The
Commission shall establish a regional advisory body on the petition of at least
two-thirds of the States within a region that have more than one-half of their
electric load served within the region. A regional advisory body shall be
composed of one member from each participating State in the region, appointed
by the Governor of each state, and may include representatives of agencies,
States, and provinces outside the United States. A regional advisory body may
provide advice to the electric reliability organization, a regional reliability
entity, or the Commission regarding the
governance of an existing or proposed regional reliability entity within
the same region, whether a standard proposed to apply within the region is
just, reasonable, not unduly discriminatory or preferential, and in the public
interest, whether fees proposed to be assessed within the regional are just,
reasonable, not unduly discriminatory or preferential, and in the public
interest and any other responsibilities requested by the Commission. The
Commission may give deference to the advice of any such regional advisory body
if that body is organized on an interconnection-wide basis.
``(l) APPLICATION TO ALASKA AND
HAWAII.--The provisions of this section do not apply to Alaska or Hawaii.''.