80 FR 58382 - Collection of Connected Entity Data From Regional Transmission Organizations and Independent System Operators
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission Federal Register Volume 80, Issue 188 (September 29, 2015)
Federal Energy Regulatory Commission
Federal Register Volume 80, Issue 188 (September 29, 2015)
| Page Range | 58382-58393 | |
| FR Document | 2015-24281 |
[Federal Register Volume 80, Number 188 (Tuesday, September 29, 2015)] [Proposed Rules] [Pages 58382-58393] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-24281] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM15-23-000] Collection of Connected Entity Data From Regional Transmission Organizations and Independent System Operators AGENCY: Federal Energy Regulatory Commission. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes to amend its regulations to require each regional transmission organization (RTO) and independent system operator (ISO) to electronically deliver to the Commission, on an ongoing basis, data required from its market participants that would; first identify the market participants by means of a common alpha-numeric identifier; and secondly list their ``Connected Entities,'' which includes entities that have certain ownership, employment, debt, or contractual relationships to the market participants, as specified in this NOPR; and finally describe in brief the nature of the relationship of each Connected Entity. Such information will assist screening and investigative efforts to detect market manipulation, an enforcement priority of the Commission. The initiative would also assist market monitors for the RTOs and ISOs in their individual and joint investigations of potential cross-market manipulation. Unless the RTOs and ISOs request continuation of existing affiliate disclosure requirements based on a particularized need, the Commission expects that this new disclosure obligation will supplant all existing affiliate disclosures requirements contained in the RTOs and ISOs tariffs. The proposed definitional uniformity of the term ``Connected Entity'' across all of the RTOs and ISOs may help ease compliance burdens on market participants that are active in more than one RTO or ISO, and that are now required to submit affiliate information that may be unique to each of the organized markets in which they participate. DATES: Comments on the proposed rule are due November 30, 2015. ADDRESSES: Comments, identified by docket number, may be filed in the following ways:Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426. Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures Section of this document. FOR FURTHER INFORMATION CONTACT: David Pierce (Technical Information), Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6454, david.pierce@ferc.gov. Kathryn Kuhlen (Legal Information), Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6855, kathryn.kuhlen@ferc.gov SUPPLEMENTARY INFORMATION: 1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy Regulatory Commission (Commission) proposes, pursuant to sections 222, 301(b), 307(a) and 309 of the Federal Power Act (FPA),\1\ to amend its regulations to require each regional transmission organization (RTO) and independent system operator (ISO) to electronically deliver to the Commission, on an ongoing basis, data required from its market participants that would: (i) Identify the market participants by means of a common alpha-numeric identifier; (ii) list their ``Connected Entities,'' which includes entities that have certain ownership, employment, debt, or contractual relationships to the market participants, as specified in this NOPR; and (iii) describe in brief the nature of the relationship of each Connected Entity. The uniform identification of market participants, together with the listing of entities that comprise a network of common interests, would enhance the Commission's efforts to detect and deter market manipulation, a central objective of the Commission as identified in its FY 2014-2018 Strategic Plan.\2\ Unless the RTOs and ISOs request continuation of existing affiliate disclosure requirements based on a particularized need, the Commission expects that this new disclosure obligation will supplant all existing affiliate disclosures requirements contained in the RTOs and ISOs tariffs. --------------------------------------------------------------------------- \1\ 16 U.S.C. 824v, 825(b), 825f(a), 825(h). \2\ Federal Energy Regulatory Commission Strategic Plan FY 2014- 2018, Objective 1.2 (Mar. 2014), available at http://www.ferc.gov/about/strat-docs/FY-2014-FY-2018-strat-plan.pdf. --------------------------------------------------------------------------- 2. In the Strategic Plan, the Commission cited monitoring and surveillance activities as a key function in meeting the objective of detecting and deterring market manipulation.\3\ In recent years the Commission has greatly enhanced its capabilities in this regard, having developed automated screens of market activities and set up analytical procedures to detect potential market manipulation. Understanding the ownership, employment, debt, and contractual relationships of market participants would provide context for such data, and help determine whether there appears to be a legitimate business rationale for seemingly anomalous trading patterns, or whether there may be market manipulation, fraud, or abuse. This in turn will further the Commission's goal of detecting and deterring possible market manipulation. As we explain below, the existing affiliate disclosure requirements do not appropriately enable the Commission to identify and monitor these business relationships. --------------------------------------------------------------------------- \3\ Id. --------------------------------------------------------------------------- I. Background 3. Beginning in the late 1960s, the electric industry gradually transformed itself from one populated by mostly self-sufficient vertically integrated utilities compensated by cost-based rates, to [[Page 58383]] competitive markets characterized by open transmission access, partial disaggregation of generation and transmission, and market-based rates.\4\ Competitive markets brought with them the potential for market manipulation, and Congress, acting in response to the abuses characterizing the Western Energy Crisis of 2000-2001, passed the Energy Policy Act of 2005 (EPAct 2005).\5\ This legislation, among other things, gave the Commission authority to address market manipulation, including the ability to assess substantial civil fines and seek criminal penalties.\6\ --------------------------------------------------------------------------- \4\ Enhancement of Electricity Market Surveillance and Analysis through Ongoing Electronic Delivery of Data from Regional Transmission Organizations and Independent System Operators, Order No. 760, 77 FR 26674 (May 7, 2012), FERC Stats. & Regs. ] 31,330, at P 2 (2012). \5\ Pub. L. 109-58, 119 Stat. 594. \6\ See 16 U.S.C. 825o (criminal penalties); 16 U.S.C. 825o-1 (civil fines). --------------------------------------------------------------------------- 4. In 2012, utilizing the authority granted by Congress under the FPA, the Commission expanded the tools available to staff to investigate market activity for potential manipulation. In Order No. 771,\7\ the Commission required e-Tag Authors and Balancing Authorities to ensure Commission access to their e-Tags. And in Order No. 760,\8\ the Commission required the RTOs and ISOs to electronically deliver to the Commission, on a regular basis, their existing data relating to physical and virtual offers and bids, market awards, resource outputs, marginal cost estimates, shift factors, financial transmission rights, internal bilateral contracts, uplift, and interchange pricing. These orders have provided needed tools for staff to monitor market activities. --------------------------------------------------------------------------- \7\ Availability of E-Tag Information to Commission Staff, Order No. 771, 77 FR 76367 (Dec. 28, 2012), FERC Stats. & Regs. ] 31,339 (2012), order on rehearing and clarification, 142 FERC ] 61,181 (2013). \8\ Order No. 760, FERC Stats. & Regs. ] 31,330 at PP 8-19. --------------------------------------------------------------------------- 5. The Commission has also been granted access by the Commodity Futures Trading Commission (CFTC) to its Large Trader Report, and the information contained therein has significantly added to the Commission's ability to carry out its enforcement responsibilities. In addition, on January 2, 2014, the Commission and the CFTC signed a new Memorandum of Understanding (MOU) to share information in connection with market surveillance and investigations into potential market manipulation, fraud, or abuse.\9\ This MOU establishes procedures for sharing information of mutual interest related to market surveillance and investigative matters, while maintaining confidentiality and data protection.\10\ --------------------------------------------------------------------------- \9\ Memorandum of Understanding Between the Commodity Futures Trading Commission and the Federal Energy Regulatory Commission Regarding Information Sharing and Treatment of Proprietary Trading and Other Information (Jan. 2, 2014), available at http://www.ferc.gov/legal/mou/mou-ferc-cftc-info-sharing.pdf. \10\ Id. --------------------------------------------------------------------------- 6. Nonetheless, despite increased access to trading data, the Commission cannot fully utilize this information in order to detect and deter market manipulation because of uncertainty regarding the identity of a given market participant, which may trade under different identifiers in different markets and venues. The Commission also lacks a clear window into the relationships between market participants and other entities, which can be complex. Without an understanding of which companies share ownership or debt interests, or who may function in key employment or other contractual roles (such as asset management), it can be difficult to ascertain which individuals or companies may benefit from a given transaction or, indeed, who may be jointly participating in a common course of conduct. 7. Currently, each RTO and ISO requires market participants to provide it with a list of the participant's affiliates.\11\ However, requirements vary as to the nature of a reportable affiliate relationship and the frequency for updating the information. In addition, for purposes of ferreting out potential market manipulation, it is important to explore relationships that extend beyond corporate affiliation. Such additional relationships may involve contractual relationships such as tolling and asset management agreements, or debt structures that are convertible to ownership interests. --------------------------------------------------------------------------- \11\ See, e.g., the following sections from the tariffs of the RTOs/ISOs: California Independent System Operator Corporation (CAISO): Section 39.9 and 4.10.1.5.1 (for congestion revenue rights); ISO New England Inc. (ISO-NE): Section I.3.5; Midcontinent Independent System Operator, Inc. (MISO): Attachment L.1.A.5 (credit application evaluation disclosure requirement), Attachment L.1.B.5 (ongoing credit evaluation disclosure requirement); New York Independent System Operator, Inc. (NYISO): Section 2.15; PJM: Section 216.2.1 (Interconnection customer affiliate disclosure requirement), Attachment Q 1.A.5 (credit application evaluation disclosure requirement), Attachment Q 1.B.5 (ongoing credit evaluation disclosure requirement). --------------------------------------------------------------------------- 8. The existing affiliate disclosure rules do not provide the tools necessary for the Commission to sufficiently monitor these increasingly complex business relationships that impact our jurisdictional markets. Thus, the Commission believes it is desirable to use a new term, one that is free of any associations that have developed around the term ``affiliate,'' and one that is uniform across all of the RTOs and ISOs, to describe a relationship of interest in probing for potential market manipulation. We propose the term ``Connected Entity,'' and further propose to make the definition of that term uniform across the organized electric markets. II. Discussion Need for Connected Entity Information 9. The Commission employs a variety of screens to identify anomalous trading. When it detects such anomalies, it attempts to determine whether the behavior is legitimate market activity. It does this in large part by analyzing the circumstances surrounding the activity, including trading patterns and trader explanations. Some patterns that have emerged to date are: limited risk or riskless combinations of trades to enhance the value of a position or portfolio, such as wash trades; repetitive, uneconomic physical trading or flows to benefit a position; trading to affect the formation of an index price; withholding physical generation to benefit a financial and/or physical position; and using virtual bids to benefit a financial and/or physical position. 10. Rather than performing a trade or other action that results in a direct benefit to itself, a market participant might instead take actions that benefit another entity that bears a financial or legal relationship to it. Entities under common control, whether by ownership, beneficial interest, or contractual relationships, might also collude to set prices by taking positions that together result in a market manipulation. An understanding of these relationships is crucial in exploring the design and possible purposes behind a trading pattern, from which inferences of intent can be drawn and investigated. The existing affiliate disclosure requirements imposed through the RTOs and ISOs tariffs do not capture all of these business relationships. 11. As evidence of intent is critical in establishing whether there has been market manipulation,\12\ the Commission can better monitor and protect the markets from wrongdoing if these relationships are fully known. [[Page 58384]] Moreover, more complete information about these relationships will reduce the number of informal inquiries in response to false positive surveillance screen trips that may result from an incomplete picture of market participants' incentive structures. --------------------------------------------------------------------------- \12\ In Order No. 670, the Commission promulgated regulations 18 CFR 1c.1 and 1c.2, which prohibit manipulation in the natural gas and electric energy markets. In that order, the Commission stated that ``any violation of the Final Rule requires a showing of scienter.'' Prohibition of Energy Market Manipulation, Order No. 670, FERC Stats. & Regs. ] 31,202, at P 52 (2006). --------------------------------------------------------------------------- Sources and Completeness of Connected Entity Information 12. Although there are a few third-party sources of public information that contain data about the affiliate relationships of entities trading in the electric energy markets, their information and manner of collection is insufficient for the Commission's market monitoring responsibilities. These sources include vendors such as Dun & Bradstreet, SNL Financial, and Ventyx. The primary service provided by these companies is tracking trading information, not compiling affiliate data, and their affiliate information is generally derived from public sources that do not cover all market participants. Further, whether such information is current or complete cannot be ascertained from the listings. Nor do such listings include entities that are connected by contractual relationships, rather than ownership. For all these reasons, an up-to-date, reliable, and complete listing of Connected Entities cannot be obtained from these third-party sources. 13. Obtaining Connected Entity data from RTOs and ISOs leaves unaddressed similar data from entities operating outside the organized electric markets. However, the Commission has estimated, using Electric Quarterly Report (EQR) data and existing affiliation information gleaned from market-based rate filings and other available sources, that approximately 90 percent of the reported wholesale sales of electricity subject to the Commission's jurisdiction are made either by market participants in one or more of the six RTOs and ISOs, or by companies related by ownership to such a market participant.\13\ Therefore, access to Connected Entity data for all the market participants in each of the RTOs and ISOs would provide most of such data for all the transactions of interest in the Commission's electric manipulation screening. We invite comment on the desirability and feasibility of expanding our proposal to require the submission of Connected Entity information from non-RTO/ISO market participants, and on any difficulties commentators might perceive to exist in doing so. --------------------------------------------------------------------------- \13\ These RTOs and ISOs are: ISO-NE., NYISO, PJM, MISO, Southwest Power Pool, Inc., and CAISO. The Electric Reliability Council of Texas is non-jurisdictional and not included in the calculation. Staff determined this percentage by examining the Electric Quarterly Reports, which must be filed by all public utilities and by non-public utilities that trade above a de minimus amount. See 18 CFR 35.10(b) (2015). --------------------------------------------------------------------------- 14. The Commission recognizes that this proposal would place additional burden on market participants to implement the new reporting requirement and to submit the Connected Entity information to the RTOs and ISOs as proposed. However, we believe that the benefits of this proposal will outweigh the additional burden imposed on market participants. Moreover, as noted above, each of the six RTOs and ISOs already requires its market participants to submit data identifying certain affiliate relationships. It is possible that some, if not all, market participants will be able to use its existing processes for reporting affiliate information to the RTOs and ISOs to lessen the burden of this proposed reporting. For market participants that are active in more than one market, it is also possible that the burden of making a uniform Connected Entity filing in all those markets, once the initial implementation period is over, would be no greater than the current burden of making multiple affiliate filings, each of which is unique to its particular RTO or ISO. For participants in only one market, we recognize that there will likely be an increase in the administrative time needed for compliance. As for the RTOs and ISOs themselves, we believe they would incur the initial implementation costs required to make compliance filings to amend their tariffs to conform the filed information to the new Commission standards, and revising their collection processes to be consistent with those standards. Authority To Acquire Connected Entity Information 15. The Commission has the authority to require the type of record keeping and submittals contemplated in this NOPR. As discussed below, the Commission's anti-manipulation authority under section 222 of the FPA, taken together with its investigative authority under section 307(a) of the FPA, its administrative powers under section 309 of the FPA, and its inspection and examination authority under section 301(b) of the FPA, provides ample basis for accessing Connected Entity data. 16. Section 222 of the FPA grants the Commission authority over the prohibition of market manipulation in connection with the purchase or sale of electric energy and transmission subject to the Commission's jurisdiction.\14\ It also prohibits manipulation by ``any entity,'' including entities exempted from the Commission's rate-related jurisdiction. Section 301(b) of the FPA provides that the Commission shall at all times have access to, and the right to inspect and examine all accounts and records of public utilities,\15\ which includes RTOs and ISOs. Section 309 of the FPA grants the Commission the authority to ``perform any and all acts, and to prescribe, issue, make, amend, and rescind such orders, rules and regulations as it may find necessary and appropriate to carry out the provisions of [the FPA].'' \16\ And section 307(a) of the FPA provides that the Commission has authority to investigate any facts, conditions, practices, or matters it may deem necessary or proper to determine whether any person, electric utility, transmitting utility, or other entity may have violated or might violate the FPA or the Commission's regulations.\17\ It also has investigatory authority to aid in the enforcement of the FPA or the Commission's regulations, or to obtain information about wholesale electric energy sales or the transmission of electric energy in interstate commerce.\18\ This investigatory authority is not limited to a particular case or controversy, but allows an agency to ``investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.'' \19\ --------------------------------------------------------------------------- \14\ 16 U.S.C. 824v. \15\ 16 U.S.C. 825(b). \16\ 16 U.S.C. 825(h). \17\ 16 U.S.C. 825f(a). \18\ Id. \19\ United States v. Morton Salt, 338 U.S. 632, 642 (1950). --------------------------------------------------------------------------- 17. The Commission has already required the RTOs and ISOs to provide this type of information to the Commission. Most notably, in Order No. 760, the Commission required the RTOs and ISOs to electronically deliver to it, on an ongoing basis, data relating to physical and virtual offers and bids, market awards, resource outputs, marginal cost estimates, shift factors, financial transmission rights, internal bilateral contracts, uplift, and interchange pricing.\20\ The information sought under this NOPR would typically be provided with less frequency than that which the RTOs and ISOs submit under Order No. 760. And the submittal of Connected Entity data would be transmitted through the same channels as the RTOs and ISOs already employ for Order No. 760 data. --------------------------------------------------------------------------- \20\ See Order No. 760, FERC Stats. & Regs. ] 31,330 at Summary. --------------------------------------------------------------------------- [[Page 58385]] Additional Benefits and Confidentiality of Connected Entity Data 18. Establishing common identifiers and a uniform definition of Connected Entity, as is proposed in this NOPR, would have the additional benefit of assisting the RTO/ISO market monitors in their responsibilities to oversee the markets. Market monitors could assess cross-market transactions and compare their data with that produced by their neighboring market monitors, assured that the data was accurate and consistent.\21\ --------------------------------------------------------------------------- \21\ See Southwest Power Pool, Inc., 137 FERC ] 61,046 at P 19 (2011) (``[T]he Commission clarifies that Market Monitoring Units, RTOs, and ISOs may communicate referral information with each other across regions . . . The Commission strongly encourages this type of communication, as long as reasonable precautions are taken to ensure that all referral information remains non-public.''); see also New York Independent System Operator, 136 FERC ] 61,116 (2011). --------------------------------------------------------------------------- 19. Understanding the relationship between connected entities can be an important aspect of the Commission's ex post analysis, which is a critical element of the market-based rate program. In Lockyer, the Ninth Circuit cited with approval the Commission's dual requirement of an ex ante finding of the absence of market power and sufficient post- approval reporting requirements, finding that the Commission does not rely on ex ante market forces alone in approving market-based rate tariffs. In particular, the court found that the ongoing oversight and timely reconsideration of market-based rate authorization under section 205 of the FPA enables the Commission to meet its statutory duty to ensure that all rates are just and reasonable.\22\ --------------------------------------------------------------------------- \22\ Cal. ex rel. Lockyer v. FERC, 383 F.3d 1006 (9th Cir. 2004). See also Cal. v. FERC, 784 F.3d 1267 (9th Cir. 2015). --------------------------------------------------------------------------- 20. The Commission anticipates that submitting Connected Entity data would not place market participants under increased risk in relation to the disclosure of confidential or proprietary information. Some of the information to be gathered by the RTOs and ISOs from participants is already publicly available. This would include, in the case of publicly-traded companies, data found in their Securities and Exchange Commission (SEC) filings; in the case of contractual control over a jurisdictional asset, the data would generally be available through EQR reporting requirements. To the extent, however, that Connected Entity information is not already public, we intend that the collection of Connected Entity information be treated as non-public, to the same extent as is Order No. 760 data and any other investigatory material submitted under Part 1b of the Commission's regulations.\23\ --------------------------------------------------------------------------- \23\ 18 CFR part. 1b (2015). --------------------------------------------------------------------------- 21. Connected Entity information that is commercially sensitive, such as all or part of the contractual arrangements among entities, may satisfy the requirements of exemption 4 of the Freedom of Information Act (FOIA), which protects ``trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.'' \24\ The non-public information to be gathered under the proposed rule may also fall within the ambit of FOIA exemption 7, which protects certain ``records and information compiled for law enforcement purposes.'' \25\ --------------------------------------------------------------------------- \24\ 5 U.S.C. 552(b)(4); accord 18 CFR 388.107(d) (2015). \25\ 5 U.S.C. 552(b)(7); accord 18 CFR 388.107(g) (2015). --------------------------------------------------------------------------- Proposed Definition of a Connected Entity 22. Over the years, the term ``affiliate'' has been used frequently in tariffs and regulations, but not always with exactly the same definition. The term has also usually centered on relationships involving control by virtue of an ownership interest.\26\ However, in carrying out the Commission's responsibility to oversee the markets for possible market manipulation, other relations may be equally worthy of examination. We thus propose an entirely new term, to be used in connection with investigatory data gathered for the purposes identified in this NOPR, that of ``Connected Entity.'' We propose to revise 18 CFR 35.28(g)(4) to define Connected Entity as follows: --------------------------------------------------------------------------- \26\ See, e.g., 18 CFR 35.36(a)(9) (2015). --------------------------------------------------------------------------- 23. A Connected Entity, which includes natural persons, is one which stands in one or more of the following relationships to a market participant: a. An entity that directly or indirectly owns, controls, or holds with power to vote, 10 percent or more of the ownership instruments of the market participant, including but not limited to voting and non- voting stock and general and limited partnership shares; or an entity 10 percent or more of whose ownership instruments are owned, controlled, or held with power to vote, directly or indirectly, by a market participant; or an entity engaged in Commission-jurisdictional markets that is under common control with the market participant; b. The chief executive officer, chief financial officer, chief compliance officer, and the traders of a market participant (or employees who function in those roles, regardless of their titles); c. An entity that is the holder or issuer of a debt interest or structured transaction that gives it the right to share in the market participant's profitability, above a de minimis amount, or that is convertible to an ownership interest that, in connection with other ownership interests, gives the entity, directly or indirectly, 10 percent or more of the ownership instruments of the market participant; or an entity 10 percent of more of whose ownership instruments could, with the conversion of debt or structured products and in combination with other ownership interests, be owned or controlled, directly or indirectly, by a market participant; or d. Entities that have entered into an agreement with the market participant that relates to the management of resources that participate in Commission-jurisdictional markets, or otherwise relates to operational or financial control of such resources, such as a tolling agreement,\27\ an energy management agreement, an asset management agreement,\28\ a fuel management agreement, an operating management agreement, an energy marketing agreement, or the like.\29\ --------------------------------------------------------------------------- \27\ Tolling agreements are common in the energy industry, and in essence function as leasing contracts or options on a generating plant wherein the ``toller'' has the right to the plant output at his or her discretion. \28\ Asset management agreements, in general, are contractual relationships where a party agrees to manage fuel supply and delivery arrangements, including transportation, for another party, and to consume the electricity produced or share in some fashion in the revenues from the sale of that electricity. \29\ As the Commission observed in Order No. 697, energy/asset managers provide a variety of services, including, but not limited to, operating generation plants (sometimes under tolling agreements), acting as billing agents, bundling transmission and power for customers, and scheduling transactions. Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, Order No. 697, FERC Stats. & Regs. ] 31,252, clarified, 121 FERC ] 61,260 (2007), order on reh'g, Order No. 697-A, FERC Stats. & Regs. ] 31,268, clarified, 124 FERC ] 61,055, order on reh'g, Order No. 697-B, FERC Stats. & Regs. ] 31,285 (2008), order on reh'g, Order No. 697-C, FERC Stats. & Regs. ] 31,291 (2009), order on reh'g, Order No. 697-D, FERC Stats. & Regs. ] 31,305 (2010), aff'd sub nom. Mont. Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011), cert. denied, 133 S. Ct. 26 (2012). Regardless of the label attached to a particular contract, all such services would fall within the ambit of the reporting requirement proposed in this NOPR. --------------------------------------------------------------------------- We invite comment on the appropriate threshold for a de minimis share of a company's profits. Legal Entity Identifiers 24. In the past, the Commission has considered methods to ensure that there is no confusion as to the identification of entities subject to its jurisdiction. For [[Page 58386]] example, it formerly required usage of the DUNS identification system in EQR filing requirements. However, the Commission found that system to be an imprecise tool for the purpose, and removed the requirement in 2012.\30\ At that same time, it considered various alternatives to the use of DUNS numbers, but found none that would be adequate.\31\ --------------------------------------------------------------------------- \30\ Electricity Market Transparency Provisions of Section 220 of the Federal Power Act, Order No. 768, FERC Stats. & Regs. ] 31,336, at P 171 (2012); orders on reh'g and clarification, Order No. 768-A, 143 FERC ] 61,054 (2013) and order on reh'g, Order No. 768-B, 150 FERC ] 61,075 (2015). \31\ Order No. 768, FERC Stats. & Regs. ] 31,336 at P 171. --------------------------------------------------------------------------- 25. However, a relatively new system is rapidly becoming the globally accepted method to ensure accurate identification of legal entities. That system involves the establishment of Legal Entity Identifiers (LEIs), which are unique IDs assigned to single entities. In this country, adoption of the LEI system has been accelerated in response to the Dodd-Frank Act, which mandated initiatives to improve the quality of financial data available to regulators and others.\32\ The Office of Financial Research (OFR), which was created under the Dodd-Frank Act, is leading the effort to establish uniform LEIs and several federal agencies involved in the regulation of financial transactions have, or are in the process of, mandating the use of LEIs for certain purposes. Among these are the CFTC and the SEC, which now require their use for certain swaps-related activities.\33\ --------------------------------------------------------------------------- \32\ Dodd-Frank Wall Street Reform and Consumer Protection Act, 12 U.S.C. 5301, at 5343 (a). \33\ See, e.g., 17 CFR 45.4, 45.6 (2015) (CFTC); Regulation SBSR--Reporting and Dissemination of Security-Based Swap Information, 80 FR 14564, 17 CFR part 242 (2015) (SEC) (published in the Federal Register as a final rule on March 19, 2015, with an effective date of May 18, 2015). --------------------------------------------------------------------------- 26. LEIs are issued by Local Operating Units (LOUs) of the Global LEI System, and as of December 31, 2014, over 330,000 entities from 189 countries had obtained LEIs from 20 operational issuers endorsed by the LEI Regulatory Oversight Committee (ROC). The Global LEI Foundation was established in June of 2014 as a not-for-profit organization overseen by the ROC to act as its operational arm, and which maintains a centralized database of LEIs and corresponding reference data. 27. Obtaining an LEI is relatively inexpensive (approximately $250, with annual upkeep fees of approximately $150). Application is made by a legal entity, such as a corporation or partnership, and the LOU verifies authenticity of the entity by checking official governmental records. It then assigns to it an LEI, a 20-digit alpha-numeric code unique to that entity. A given alpha-numeric string is thus a permanent identifier, and is also exclusive; that is, no other entity is assigned that LEI, and the entity itself may not obtain another LEI.\34\ --------------------------------------------------------------------------- \34\ See the LEI ROC Web site for further information on the LEI identifier system. The Legal Entity Identifier Regulatory Oversight Committee--LEI ROC, http://www.leiroc.org. --------------------------------------------------------------------------- 28. We believe that the establishment of a reliable, standard identification system will greatly benefit staff's ability to conduct investigations of trading patterns in the energy markets. It appears to us that the use of LEIs is the best method to achieve this goal. We therefore propose that the RTOs and ISOs require their market participants to obtain LEIs, and to report in their Connected Entity Data filing their own LEI and the LEI of each of their Connected Entities, if the Connected Entity has obtained one. However, the LEI system is still relatively new, and we invite comments on the feasibility of its use, on whether any other system besides LEIs would be a preferable method of achieving uniform identification, and on whether waivers might be appropriate in given situations. III. Requirements for Collection of Connected Entity Data 29. As part of this rulemaking, we propose to require the submission from the RTOs and ISOs of Connected Entity information pertaining to each of its market participants.\35\ To meet this obligation, we propose that each RTO and ISO make a compliance filing setting forth in its tariff the requirement that its market participants submit to it a list of their Connected Entities, in the format approved by the Commission. This list would include all of a market participant's Connected Entities, as defined above. The Connected Entities need not be engaged in activities in the same markets as the market participant for their inclusion to be required. The RTOs and ISOs would in turn transmit this information to the Commission in its native format. --------------------------------------------------------------------------- \35\ For this purpose, the term ``market participant'' includes all entities that participate in any of the various markets of the RTO and ISO in question, whether as a seller or a buyer. --------------------------------------------------------------------------- 30. As a condition of participating in any of the RTO/ISO markets, the market participants would have to have on file with that RTO or ISO their Connected Entity data, which must be updated within 15 days of a change in status of the data. In addition, it would be a condition of participation for each market participant to certify, on a yearly basis, that its Connected Entities filed data is comprehensive and accurate. 31. We propose that the RTOs and ISOs include in their tariffs the authority (although not the obligation) to audit market participants to determine if their submitted Connected Entity data is accurate, complete, and up to date. Commission staff may also from time to time conduct audits for this purpose. 32. As discussed above, we also propose that each market participant be required to acquire an LEI, and include its own LEI and the LEIs of each of its Connected Entities (if known) on its submitted Connected Entity list. 33. We further propose that the information requested be delivered to the RTOs and ISOs in a form and manner acceptable to the Commission. By way of illustration, we envision that the following formats for submission of Connected Entity data would be mandated: A table that contains rows with columns identifying the market participant by LEI, legal name, RTO or ISO, and RTO/ISO assigned identifier, if any. If there is more than one RTO/ISO identifier, there would be a separate row for each, with the preceding columns remaining the same. If the market participant participates in more than one RTO or ISO, there would be additional rows setting forth all the categories mentioned for each RTO/ISO. Thus, a row would appear as follows (columns separated by a star): LEI of market participant (MP)* Legal Name of MP * RTO/ISO * RTO/ISO Identifier of MP A table or tables that disclose the market participant's relationships with each of its Connected Entities. Each row would address a single Connected Entity and the type of relationship with the market participant (ownership, employee, debt, contract). The LEI and the legal name of the market participant would be placed in the first two columns, respectively, and the LEI and the legal name of the Connected Entity in the third and fourth columns, respectively, and the type of relationship in the fifth column. For ownership, the date the direct, indirect or beneficial ownership reached 10 percent would be stated, as well as the total ownership as of the date of the report. For employees, which might be set forth in a separate table, the full legal name of the employee would be stated and the person's title and date of hire. For debt, the date the debt was incurred would be stated, and the debt holder and indebted party identified. For contracts, the start and end date of the [[Page 58387]] contract would be stated as well as a brief descriptor of the contract type (tolling, asset management, etc.). If there are multiple relationships with the same Connected Entity, separate rows would be used for each. Thus, a row would appear as follows: LEI of MP * Legal Name of MP * LEI of Connected Entity * Legal Name of Connected Entity * relationship type (ownership, employee, debt, contract). This table would also provide, whether by footnote or other reference means, a more detailed description of the particular relationship given. For a contract, for instance, the major provisions of the contract would be listed, such as effective date, term, renewal provisions, and matters pertinent to the type of contract, such as heat rate curve for a tolling agreement, the MW or MWh curves for a power purchase agreement, together with identification of the generator or plant involved, the nature of any output sharing, and the like. 34. The repetition of cells necessitated by the foregoing format, while it will make the document physically longer than might otherwise be the case, is needed so that the appropriate pairing of entities can be presented in a machine-readable manner. An appendix is included with this NOPR to provide some examples of how these submittals might be structured. We invite comments on formatting suggestions, as well as on the substantive matters set forth in this Notice of Proposed Rulemaking. 35. Finally, we propose that in their compliance filings, RTOs and ISOs list all affiliate information disclosure requirements. As we anticipate that the Connected Entity submissions will provide the RTOs and ISOs with as much and more information as they currently receive from the existing affiliate disclosures, we propose eliminating all existing affiliate disclosure requirements. However, if there is some particularized need that would not be met by the Connected Entity submissions, the RTOs and ISOs may request in their compliance filings to retain any such disclosure requirements, in which case they would need to include justifications for such retention. Insofar as possible, duplicative information submission should be avoided. We also solicit comments as to whether it would be feasible and more efficient for the RTOs and ISOs to utilize the Connected Entities information that would be submitted through this proposal for the same purposes that they currently use the information provided through their existing affiliate disclosure requirements. In particular, we solicit comments regarding whether replacing existing affiliate disclosure requirements in the RTO and ISO tariffs with the Connected Entity submission obligations will adversely affect implementation of other provisions of the RTO and ISO tariffs. If so, then how? Such comments may also address whether any changes should be made to the data table formats to allow RTOs and ISOs to utilize Connected Entities information for other purposes. IV. Information Collection Statement 36. The collections of information contained in this proposed rule are being submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d). We solicit comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. Respondents subject to the filing requirements of this proposed rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number. 37. The proposed rule does not require entities other than RTOs/ ISOs to report information to the Commission. The RTOs/ISOs will gather the required data from the market participants directly. However, we include burden estimates not only for RTOs/ISOs but also for market participants and Connected Entities.\36\ --------------------------------------------------------------------------- \36\ The estimated hourly cost (salary plus benefits) provided in this section are based on the figures for May 2014 posted by the Bureau of Labor Statistics for the Utilities sector (available at http://www.bls.gov/oes/current/naics2_22.htm#13-0000). The hourly estimates for salary plus benefits are: Legal (code 23-0000), $129.87, computer and mathematical (code 15-0000), $58.25, information systems manager (code 11-3021), $94.55, IT security analyst (code 15-1122), $63.55, auditing and accounting (code 13- 2011), $51.11, information and record clerk (Referred to as administrative work in the body) (code 43-4199), $37.50. --------------------------------------------------------------------------- 38. We recognize that there will be an initial implementation burden associated with providing the Commission the requested data. This includes submitting a compliance filing to the Commission. We estimate 30 hours for each RTO/ISO to prepare the filing at a cost of $3,896 per filer. 39. Each RTO and ISO already submits electronic market data to the Commission in accordance with Order No. 760. We propose that these same channels be used to handle the relatively small increase in data submission proposed under this rulemaking. RTO/ISO staff will need to add additional tables to their databases and make provisions for those tables to be included in regular transmissions. We estimate eight hours for each RTO/ISO to make these additions at an average cost of $624 per filer.\37\ --------------------------------------------------------------------------- \37\ The following weightings were applied to estimate the average hourly cost (salary plus benefits) of $78.00; legal staff, 1/6, information systems manager, 1/6, computer and mathematical, 1/ 3, information security analyst, 1/3. --------------------------------------------------------------------------- 40. Each RTO/ISO will also need to modify its current process for accepting information from market participants. We estimate 320 person- hours (costs weighted as previously described) for each RTO/ISO to make these changes at an average cost of $24,960 each. 41. Incremental, ongoing maintenance costs for RTOs/ISOs are assumed to be minimal. We estimate maintenance to require 40 person- hours per year at an average annual cost per RTO/ISO of $3,120. 42. This NOPR also proposes that RTOs/ISOs have the option to audit market participants to verify the accuracy and completeness of their submissions. If each of the six RTOs/ISOs chooses to audit an average of 10 market participants per year, we estimate this to require 40 hours per audit for a total annual auditing burden per RTO/ISO of 400 hours and annual cost of $20,444. 43. Market participants, through their affiliate disclosures, already submit information about some of their Connected Entities to the RTOs/ISOs. This proposed rule enlarges the information to be collected and standardizes its format. It is estimated that for multi- market participants, the additional cost of initial compliance and the ongoing costs of maintaining that information will be somewhat offset by the savings of standardization across the several RTOs/ISOs. This NOPR proposes that market participants obtain and maintain an LEI, which we understand currently costs about $250 to obtain and $150 per year thereafter to maintain. While there will be an initial implementation burden associated with providing the RTOs/ISOs the requested data, these costs may vary widely from participant to participant largely in proportion to the size of the entity. Since the data related to the Connected Entity is information readily available to the market participant, the costs of [[Page 58388]] gathering the data is expected to be largely administrative in nature with some minimal review by legal staff.\38\ We estimate that the average market participant will initially require four hours to register for an LEI and to collect, standardize, and provide the requested data to the RTO/ISO. We estimate the four hours of burden to cost $168 annually per market participant. (The cost of obtaining and maintaining the LEI is separate.) --------------------------------------------------------------------------- \38\ Using the average hourly cost of salary plus benefits provided above, the following weightings were applied to estimate the average hourly cost of $42.12: 95 percent information and record clerk, 5 percent legal. --------------------------------------------------------------------------- 44. The proposed rule requires market participants to update and submit Connected Entity data after material changes and annually. We estimate that this ongoing burden will require less time than the initial collection but may occur more than once per year. We estimate three hours for each market participant to maintain their LEI registration and to collect, update, standardize, and transmit the requested data to the RTO/ISO. This burden would be largely administrative (95 percent) with some minimal review by legal staff (5 percent). We estimate the total burden to be $126 per participant. 45. Market participants or Connected Entities may, from time to time, seek to confirm the accuracy of information concerning them that has been submitted to an RTO/ISO by other market participants. We conservatively estimate that one-fourth of market participants and Connected Entities will seek to confirm such information. Such confirmations would be largely administrative (95 percent) with some minimal review by legal staff (5 percent). We estimate that these confirmations will take approximately one hour for an average burden of $42 per market participant or Connected Entity seeking confirmation. Connected entities may also respond to requests for information from market participants. We estimate that each Connected Entity will spend one hour responding to these requests. Such responses would be largely administrative (95 percent) with some minimal review by legal staff (5 percent). We estimate that this activity will take approximately one hour for an average burden of $42 per Connected Entity. 46. The following table summarizes the estimated burden and cost increases rounded to the nearest dollar in FERC-921, due to the proposed rule: [GRAPHIC] [TIFF OMITTED] TP29SE15.000 47. The table above contains estimates of the number of market participants and the number of Connected Entities per market participant. We estimate that there are 6,000 market participants in the RTO/ISO markets, based on an [[Page 58389]] analysis of data submitted by the RTOs/ISOs in accordance with Order No. 760. We estimate the number of Connected Entities to be an additional 9,000 companies, based on an analysis of data from Ventyx, a third party vendor which supplies ownership information about market participants. Information Collection Costs: We estimate the initial and ongoing cost of compliance with the NOPR's proposed requirements for each type of respondent as follows: RTO/ISO [cir] Initial Burden: 358 hours, $29,480. [cir] Ongoing Burden (starting year one): 560 hours, $32,924. Market Participant [cir] Initial Burden: 4 hours, $168 plus $250 to acquire LEI. [cir] Ongoing Burden (starting year two): 5 hours, $201, plus $150 to maintain LEI. Connected Entity [cir] Ongoing Burden (starting year one): 1.25 hours, $53. Title: FERC-921,\39\ Ongoing Electronic Delivery of RTO/ISO Data. --------------------------------------------------------------------------- \39\ OATT compliance filings (like the one-time compliance filing here) are normally included under FERC-516 (OMB Control No. 1902-0096). However, the reporting requirements (including the compliance filing) contained in this proposed rule in Docket No. RM15-23-000 will be included in FERC-921. --------------------------------------------------------------------------- Action: Proposed revisions to existing information collection. OMB Control No.: 1902-0257. Respondents for this Rulemaking: RTOs and ISOs; market participants; Connected Entities. Frequency of Information: Initial implementation, compliance filing, and periodic updates (at least annually). 48. Necessity of Information: As wholesale electricity markets continue to develop and evolve, new opportunities arise for anti- competitive or manipulative behavior. The Commission's market monitoring and surveillance capabilities and associated data requirements must keep pace with market developments and evolve along with the markets. The data discussed in this NOPR will allow the Commission to more effectively identify and address such behavior; to identify ineffective market rules; to better inform Commission policies and regulations; and thus to help ensure just and reasonable rates. 49. Internal Review: The Commission has made a preliminary determination that the proposed revisions are necessary to keep pace with ever-changing possibilities for anti-competitive or manipulative behavior and to better inform Commission policies and regulations, and thus to ensure that rates are just and reasonable. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimate associated with the information requirements. 50. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email: DataClearance@ferc.gov, phone: (202) 502-8663, fax: (202) 273-0873]. 51. Comments concerning the information collections proposed in this NOPR, and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 (Attention: Desk Officer for the Federal Energy Regulatory Commission). For security reasons, comments should be sent by email to OMB at the following email address: oira_submission@omb.eop.gov. Please reference FERC-921 and OMB Control No. 1902-0257 in your submission. V. Environmental Analysis 52. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.\40\ The Commission has categorically excluded certain actions from these requirements as not having a significant effect on the human environment.\41\ The actions proposed here fall within a categorical exclusion in the Commission's regulations, i.e., they involve information gathering, analysis, and dissemination.\42\ Therefore, environmental analysis is unnecessary and has not been performed. --------------------------------------------------------------------------- \40\ Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897, FERC Stats. & Regs. ] 30,783 (1987). \41\ 18 CFR 380.4 (2015). \42\ See 18 CFR 380.4(a)(5). --------------------------------------------------------------------------- VI. Regulatory Flexibility Act 53. The Regulatory Flexibility Act of 1980 (RFA) \43\ generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The RFA mandates consideration of regulatory alternatives that accomplish the stated objectives of a rule and that minimize any significant economic impact on a substantial number of small entities. The Small Business Administration's (SBA) Office of Size Standards is responsible for the definition of a small business.\44\ These standards are provided on the SBA Web site.\45\ We reviewed the SBA's current size standards with respect to the three classes of entities covered in the proposed rule: RTOs/ISOs, market participants, and their Connected Entities. --------------------------------------------------------------------------- \43\ 5 U.S.C. 601-12. \44\ 13 CFR 121.101 (2015). \45\ U. S. Small Business Administration, Table of Small Business Size Standards Matched to North American Industry Classification System Codes (effective July 14, 2014), available at https://www.sba.gov/sites/default/files/Size_Standards_Table.pdf. --------------------------------------------------------------------------- 54. The SBA classifies an entity as an electric utility if it is primarily engaged in the transmission, generation and/or distribution of electric energy for sale. Under this definition, RTOs/ISOs are considered electric utilities. The size criterion for a small electric utility is having 500 or fewer employees.\46\ Since every RTO and ISO has more than 500 employees, none are small entities.\47\ --------------------------------------------------------------------------- \46\ 13 CFR 121.101 (Sector 22, Utilities). Of note, the SBA recently revised its size standard for electric utilities (effective January 22, 2014) from a standard based on megawatt hours to one based on the number of employees, including affiliates. \47\ For five of the RTOs/ISOs, full-time employee estimates are based on human resources reports published on the Web site of each RTO/ISO. For the sixth RTO/ISO, the full-time employee estimate was obtained from the Chief Financial Officer. --------------------------------------------------------------------------- 55. Market participants and their Connected Entities are likely to be in several market sectors and therefore subject to a variety of SBA size standards. We have identified a broad cross-section of the most likely SBA market sectors for participants and their Connected Entities. Industries in these subsectors include utilities, oil and gas production, mining, finance, and leasing. Among these sectors, there are various criteria and thresholds for determining whether a business is small, but the numbers of employees do not exceed 1,000, and the revenues do not exceed $38.5 million.\48\ --------------------------------------------------------------------------- \48\ 13 CFR 121.101. --------------------------------------------------------------------------- 56. While many market participants and Connected Entities are some of the largest businesses in the United States (for example, large electric utilities and commercial banks), other market participants, such as individual power plants or small trading firms, would qualify as small under the SBA standards. It is difficult to estimate the size of all the entities affected by this proposed rule since many of smaller entities may be privately held with little public information available. However, [[Page 58390]] if every market participant and Connected Entity identified above were assumed to be small under SBA standards, a substantial number of small businesses, as many as 15,000, would be impacted by this proposed rule. 57. The economic impact of this proposed rule is directly related to the complexity of the organization, that is, the more entities to which a company is related, the more information that must be reported. The data from Ventyx indicates that complexity of this type correlates with the organization's size: larger entities will have more reportable relationships than smaller ones. Therefore, it is reasonable to believe that the cost of complying for small entities will be significantly less than the cost for large ones. The analysis of connectedness based on Ventyx data suggests that, on average, each market participant has 1.5 Connected Entities. However, this average likely overstates the number of connections for small entities since the analysis also found the median number of connections to be zero. This is also intuitively correct since concentrations of connections are typical only for large organizations.\49\ This analysis indicates that if an entity is truly small and its connections are related to its size, the number of Connected Entities that it would need to report is likely to be zero or one. --------------------------------------------------------------------------- \49\ In our analysis, the top 100 most connected market participants, almost all of which are not considered small, account for 20 percent of all relationships. --------------------------------------------------------------------------- 58. Using these assumptions, we estimate that small businesses will be required to report few, if any, Connected Entity relationships. We estimate the initial burden for small companies to be $418 \50\ with an annual maintenance burden of $213.\51\ According to SBA guidance, the determination of significance of impact ``should be seen as relative to the size of the business, the size of the competitor's business, and the impact the regulation has on larger competitors.'' \52\ Based on the above analysis, the reporting requirements proposed in this NOPR should not have a significant economic impact on a substantial number of small entities. --------------------------------------------------------------------------- \50\ This includes the initial LEI registration ($250) plus four hours of largely administrative work (95 percent) with some minimal review by legal staff (5 percent). ($168, at $42.12 per hour (salary plus benefits)). \51\ This includes annual LEI maintenance fee ($150) plus 1.5 hours of largely administrative work (95 percent) with some minimal review by legal staff (5 percent) ($63 at $42.12 per hour (salary plus benefits)). \52\ U.S. Small Business Administration, A Guide for Government Agencies How to Comply with the Regulatory Flexibility Act, at 18 (May 2012), available at https://www.sba.gov/sites/default/files/advocacy/rfaguide_0512_0.pdf. --------------------------------------------------------------------------- VII. Comment Procedures 59. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due November 30, 2015. Comments must refer to Docket No. RM15-23-000, include the commenter's name, the organization they represent, if applicable, and their address in their comments. 60. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing. 61. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426. 62. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. VIII. Document Availability 63. 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 the Commission's Home Page (http://www.ferc.gov) and in the Commission'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. 64. From the Commission'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. 65. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502- 8371, TTY (202)502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov. List of Subjects in 18 CFR Part 35 Electric power rates, Electric utilities, Reporting and recordkeeping requirements. By direction of the Commission. Commissioner LaFleur is concurring with a separate statement attached. Dated: September 17, 2015. Nathaniel J. Davis, Sr., Deputy Secretary. In consideration of the foregoing, the Commission proposes to amend 18 CFR part 35 to read as follows: PART 35--FILING OF RATE SCHEDULES AND TARIFFS 0 1. The authority citation for part 35 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. 0 2. Amend Sec. 35.28 by revising paragraph (g)(4) to read as follows: Sec. 35.28 Non-discriminatory open access transmission tariff. * * * * * (g) * * * (4) Electronic delivery of data. Each Commission-approved regional transmission organization and independent system operator must electronically deliver to the Commission, on an ongoing basis and in a form and manner acceptable to the Commission, data related to the markets that the regional transmission organization or independent system operator administers. The submittal shall include information concerning each market participant's Connected Entities, together with the Legal Entity Identifiers of the market participants and their Connected Entities (if known), as submitted to the regional transmission organization or independent system operator by the market participants. Connected Entity is defined as follows: (i) An entity that directly or indirectly owns, controls, or holds with power to vote, 10 percent or more of the ownership instruments of the market participant, including but not limited to voting and non- voting stock and general and limited partnership shares; or an entity 10 percent or more of whose ownership instruments are owned, controlled, or held with power to vote, [[Page 58391]] directly or indirectly, by a market participant; or an entity engaged in Commission-jurisdictional markets that is under common control with the market participant; (ii) The chief executive officer, chief financial officer, chief compliance officer, and the traders of a market participant (or employees who function in those roles, regardless of their titles); (iii) An entity that is the holder or issuer of a debt interest or structured transaction that gives it the right to share in the market participant's profitability, above a de minimus amount, or that is convertible to an ownership interest that, in connection with other ownership interests, gives the entity, directly or indirectly, 10 percent or more of the ownership instruments of the market participant; or an entity 10 percent of more of whose ownership instruments could, with the conversion of debt or structured products and in combination with other ownership interests, be owned or controlled, directly or indirectly, by a market participant; or (iv) Entities that have entered into an agreement with the market participant that relates to the management of resources that participate in Commission-jurisdictional markets, or otherwise relates to operational or financial control of such resources, such as a tolling agreement, an energy management agreement, an asset management agreement, a fuel management agreement, an operating management agreement, an energy marketing agreement, or the like. * * * * * Appendix: Table Structures for Connected Entity Reporting The proposed rule requires RTOs and ISOs to submit tables identifying market participants by their Legal Entity Identifier (LEI), any RTO/ISO specific identifiers, and designated relationships between those market participants and their connected entities. The body of the proposed rule describes the relationships to be reported; this appendix suggests the structure of the tables that would be suitable for compliance. Companies Table The first table will indicate in which markets each entity and Connected Entity (or entities) participates as well as any and all market identifiers used by those entities in each market. The columns of the table will contain at least the standard company name, LEIs, and market identifiers for all Connected Entities in a given submission. Each row will associate an LEI with a company name, market, and market identifier. In some cases, entities will trade using different market identifiers in the same market, in which case the entity will add a row for every market and for each unique market identifier used by that company. In the case where multiple entities are using the same market identifier, this can be indicated in a similar manner. If a Connected Entity does not participate in jurisdictional markets, then no market identifier is available and is not required. Here is a sample table indicating the cases described above ------------------------------------------------------------------------ Market Standard company name LEI Market identifier ------------------------------------------------------------------------ ACME Energy................. 001 MISO 328502 ACME Energy................. 001 PJM 00034253 ACME Energy................. 001 PJM 00098345 ACME Renewables............. 002 PJM 00034253 Smith Company............... 123 NYISO 3362000012 Johnson Inc................. 999 None None ------------------------------------------------------------------------ [ssquf] Standard Company Name: The full name of the company which conforms in spelling and punctuation to all previous filings done by or on behalf of the same company. [ssquf] Legal Entity Identifier (LEI): The unique alpha-numeric identifier conforming to ISO 17442:2012 assigned to the legal entity. [ssquf] Market: Standard code for jurisdictional markets: PJM, NYISO, MISO, SPP, CAISO, ISONE, NON-RTO, None (i.e., does not participate in any electric markets). [ssquf] Market Identifier: Market identifiers are the alpha- numeric codes used by markets to associate a market participant with their bids, offers, and settlements. Connected Entities Connected Entities are those entities which are related to the reporting entity by (a) ownership or control, (b) key employees, (c) debt holders or issuers, or (d) contractual relationships. Since employee identification is significantly different from that of non- person entities, a subtable for employee information is suggested and described below. Employees The key employee positions to be included will be set forth in the RTOs/ISOs tariff, in conformity with the final adopted Commission regulation. The employee table will indicate the designated employees who are employed by each organization, their reportable roles, and the period of time they have held those positions. Persons employed by multiple entities will be indicated with multiple rows for different companies. Reportable roles that are jointly filled (e.g. Co-CEO) should be indicated as such (same company, same job but different employees). Employees who are no longer in reportable roles shall have at least one filing where the end date is not null. Employees changing reportable roles for a given company will appear twice in at least one filing (made in a timely manner): one row will indicate an end date for the employee/role and another row will contain a start date for a different reportable role. Individual employees filling multiple reportable roles will be indicated with multiple rows, one for each role. -------------------------------------------------------------------------------------------------------------------------------------------------------- Standard company name LEI First name Middle Last Role Start date End date -------------------------------------------------------------------------------------------------------------------------------------------------------- ACME Energy................... 001 Jane............. Doe.............. Smith........... Trader.......... 2010/01/01 ACME Energy................... 001 Jim.............. William.......... Jones........... CEO............. 2009/01/03 2015/01/01 ACME Energy................... 001 Jim.............. William.......... Jones........... Chairman........ 2015/01/01 ACME Renewables............... 002 Aaron............ Jerome........... Case............ CEO............. 2012/05/01 Smith Company................. 123 Xavier........... Horatio.......... Martin.......... CEO............. 2007/01/01 Johnson Inc................... 999 Jane............. Doe.............. Smith........... CEO............. 2010/06/01 -------------------------------------------------------------------------------------------------------------------------------------------------------- The column definitions are self-explanatory. Relationships The relationships table is intended to provide a map (or graph) to the remaining three types of Connected Entities of the market participant, which include both its corporate family as well as outside entities [[Page 58392]] connected by debt or contractual relationships. The relationships to be included are described in the body of the Notice of Proposed Rulemaking. Relationship Relationships should be classified based on the broad categories defined above. Relationships may fall into the following general categories (omitting employees, category (b), who are reported in a separate subtable): owns (a) controls (a) has voting power (a) is under common control with (a) other ownership or control relationship with (a) owns debt of (c) owns convertible debt of (c) has a structured transaction with (c) other debt relationship with (c) has a management agreement with (d) has an operating agreement with (d) has a marketing agreement with (d) has a tolling agreement with (d) has a fuel management agreement with (d) other kind of agreement with (d). Contractual agreements between two parties regarding a third party should be entered as a multilateral relationship as described below. Relationship Description Each table will include a field for the filing entity to summarize any pertinent relationship details which may not be captured in the standardized fields. Simple Relationship Structures A relatively straightforward corporate family of three companies that all participate in MISO and PJM might be as follows: [GRAPHIC] [TIFF OMITTED] TP29SE15.001 If C owns A and C controls B, the entity and relationships tables would be reported as follows: ---------------------------------------------------------------------------------------------------------------- Market Standard company name LEI Market identifier ---------------------------------------------------------------------------------------------------------------- A............................................................... 001 MISO 0001 B............................................................... 002 MISO 0002 C............................................................... 003 MISO 0003 A............................................................... 001 PJM ABC B............................................................... 002 PJM BCD C............................................................... 003 PJM DCE ---------------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------------- Relationship LEI 1 LEI 2 Relationship Start date End date description ---------------------------------------------------------------------------------------------------------------- 003.......................... 001 OWNS (a)........ 2015/12/04 .............. Wholly owned subsidiary. 003.......................... 002 CONTROLS (a).... 2015/02/01 .............. Exercises discretion over key market functions. ---------------------------------------------------------------------------------------------------------------- In the event several Connected Entities are market participants in the same RTO or ISO, a combined filing of the structural relationships, but not the debt and contracts, could be made, disclosing on one form all of the connected entities. In such case, each Connected Entity must consent to the combined filing and verify the accuracy of the information. More Complex Structures Relationships within the electric industry can be very complex. The illustrated method of reporting pairwise relationships based on LEIs extends to relationships of arbitrary complexity. [GRAPHIC] [TIFF OMITTED] TP29SE15.002 ------------------------------------------------------------------------ Standard company name LEI ------------------------------------------------------------------------ A....................................................... 001 B....................................................... 002 C....................................................... 003 D....................................................... 004 E....................................................... 005 F....................................................... 006 G....................................................... 007 H....................................................... 008 ------------------------------------------------------------------------ ---------------------------------------------------------------------------------------------------------------- Relationship LEI 1 LEI 2 Relationship Start date End date description ---------------------------------------------------------------------------------------------------------------- 003.......................... 001 OWNS (a)........ 2015/12/04 .............. Wholly owned subsidiary. 003.......................... 002 CONTROLS (a).... 2015/02/01 .............. Exercises discretion over key market functions. 001.......................... 002 HAS A TOLLING 2010/01/01 2020/01/01 1 will provide AGREEMENT WITH raw materials (c). to 2 under an agreement that 2 will return electricity at a specified heat rate. 001.......................... 004 OWNS (a)........ 2011/05/02 .............. Wholly-owned subsidiary. 001.......................... 005 OWNS (a)........ 2000/01/05 .............. Wholly-owned subsidiary. [[Page 58393]] 005.......................... 006 HAS A FUEL 2005/01/01 .............. Procures gas MANAGEMENT and transport AGREEMENT WITH on behalf of (d). 2. 006.......................... 007 OWNS (a)........ 2005/01/01 .............. Wholly-owned subsidiary 006.......................... 008 HAS AN ASSET 2001/10/01 .............. Manages fleet MANAGEMENT operations. AGREEMENT WITH (d). 004.......................... 007 HAS AN ENERGY 2010/01/01 2015/01/01 Fee-based MARKETING marketing AGREEMENT WITH agreement of (d). the energy produced by 2's assets. ---------------------------------------------------------------------------------------------------------------- The entity in the LEI 1 column is understood to be the entity on the left hand side of the relationship and the entity in the LEI 2 column is understood to be the entity on the right hand side. Multiple Relationships In some cases there may be multiple relationships between two market participants. Multiple relationships can be filed as follows: [GRAPHIC] [TIFF OMITTED] TP29SE15.003 ---------------------------------------------------------------------------------------------------------------- LEI 1 LEI 2 Relationship Other fields ---------------------------------------------------------------------------------------------------------------- 001........................................... 002 OWNS............................ .............. 001........................................... 002 CONTROLS........................ .............. ---------------------------------------------------------------------------------------------------------------- Multilateral Relationships Multilateral relationships have three or more parties. Such relationships are reportable using a relationship identification field, as long as all pairwise relationships that are party to the relationship are reported and each multilateral relationship is assigned a unique relationship identifier. The relationship identifier will be assigned by the reporting entity, each reportable relationship will have a unique relationship identifier, the identifier will be a numeric sequence (i.e. no names, no punctuation, etc.), and when possible, relationship identifiers should be consistent between filings. [GRAPHIC] [TIFF OMITTED] TP29SE15.004 ---------------------------------------------------------------------------------------------------------------- LEI 1 LEI 2 Relationship Contract ID Other fields ---------------------------------------------------------------------------------------------------------------- 003................................... 002 CONTRACT................ 1 .............. 003................................... 001 CONTRACT................ 1 .............. 002................................... 001 CONTRACT................ 1 .............. ---------------------------------------------------------------------------------------------------------------- These fields can be used to report any number of participants, contracts, or relationships, regardless of complexity. UNITED STATES OF AMERICA FEDERAL ENERGY REGULATORY COMMISSION Collection of Connected Entity Data from Regional Transmission Organizations and Independent System Operators (Issued September 17, 2015) LaFLEUR, Commissioner, concurring: Today's order proposes to amend the Commission's regulations by establishing a newly defined term, ``Connected Entity,'' and to require the collection of information regarding Connected Entities, to allow the Commission to better monitor complex business relationships that could be utilized to engage in manipulative conduct in our jurisdictional markets. I support this proposal because it is important that the Commission, in accordance with our statutory mandate, have the tools to protect customers from manipulative behavior, and the collection of this information would assist the Commission with that effort. However, the Commission should always consider carefully whether the benefits offered by new compliance obligations outweigh the burdens that will be faced by market participants. I believe that the requirements in the Noticed of Proposed Rulemaking would create a significant new reporting regime for all market participants, as well as the RTOs and ISOs. I therefore encourage market participants to submit comments on today's proposed rulemaking that address the benefits of this proposed regulation, as well as the incremental costs or burdens that would be created by this new reporting requirement. I will carefully consider these issues as I decide whether to support the final rule. Accordingly, I respectfully concur. Cheryl A. LaFleur, Commissioner. [FR Doc. 2015-24281 Filed 9-28-15; 8:45 am] BILLING CODE 6717-01-P
![58382 Federal Register / Vol. 80, No. 188 / Tuesday, September 29, 2015 / Proposed Rules
eligibility for disaggregation. If the of the Commission. The initiative would independent system operator (ISO) to
Commission remains concerned that this also assist market monitors for the RTOs electronically deliver to the
accommodation will facilitate coordinated and ISOs in their individual and joint Commission, on an ongoing basis, data
trading, it might require affiliates sharing investigations of potential cross-market required from its market participants
trading data to restrict dissemination of the
information to those responsible for
manipulation. Unless the RTOs and that would: (i) Identify the market
compliance and risk-management efforts, ISOs request continuation of existing participants by means of a common
maintaining internal firewalls to conceal the affiliate disclosure requirements based alpha-numeric identifier; (ii) list their
information from employees who develop or on a particularized need, the ‘‘Connected Entities,’’ which includes
execute trading strategies. Commission expects that this new entities that have certain ownership,
I also welcome public comment on disclosure obligation will supplant all employment, debt, or contractual
whether the Commission should consider existing affiliate disclosures relationships to the market participants,
modifying the proposed rule to clarify that an requirements contained in the RTOs and as specified in this NOPR; and (iii)
owner filing a notice of trading independence ISOs tariffs. The proposed definitional describe in brief the nature of the
in order to claim an exemption from relationship of each Connected Entity.
aggregation under this rule need only make
uniformity of the term ‘‘Connected
subsequent filings in the event of a material Entity’’ across all of the RTOs and ISOs The uniform identification of market
change in the owner’s degree of control over may help ease compliance burdens on participants, together with the listing of
its subsidiary’s positions. The text of the market participants that are active in entities that comprise a network of
proposed rule does not appear to require more than one RTO or ISO, and that are common interests, would enhance the
periodic filings following the initial notice of now required to submit affiliate Commission’s efforts to detect and deter
trading independence, but the Commission’s information that may be unique to each market manipulation, a central objective
calculation of the proposal’s costs seems to of the organized markets in which they of the Commission as identified in its
assume that such filings will be made on an participate. FY 2014–2018 Strategic Plan.2 Unless
annual basis. the RTOs and ISOs request continuation
I encourage the public to comment on my DATES: Comments on the proposed rule
are due November 30, 2015. of existing affiliate disclosure
above concerns and propose potential
requirements based on a particularized
solutions if appropriate. ADDRESSES: Comments, identified by
need, the Commission expects that this
[FR Doc. 2015–24596 Filed 9–28–15; 8:45 am] docket number, may be filed in the
new disclosure obligation will supplant
following ways:
BILLING CODE 6351–01–P
• Electronic Filing through http:// all existing affiliate disclosures
www.ferc.gov. Documents created requirements contained in the RTOs and
electronically using word processing ISOs tariffs.
DEPARTMENT OF ENERGY 2. In the Strategic Plan, the
software should be filed in native
Commission cited monitoring and
Federal Energy Regulatory applications or print-to-PDF format and
surveillance activities as a key function
Commission not in a scanned format. in meeting the objective of detecting and
• Mail/Hand Delivery: Those unable
deterring market manipulation.3 In
18 CFR Part 35 to file electronically may mail or hand-
recent years the Commission has greatly
deliver comments to: Federal Energy
[Docket No. RM15–23–000] enhanced its capabilities in this regard,
Regulatory Commission, Secretary of the
having developed automated screens of
Commission, 888 First Street NE.,
Collection of Connected Entity Data market activities and set up analytical
Washington, DC 20426.
From Regional Transmission procedures to detect potential market
Instructions: For detailed instructions
Organizations and Independent manipulation. Understanding the
on submitting comments and additional
System Operators ownership, employment, debt, and
information on the rulemaking process,
contractual relationships of market
AGENCY: Federal Energy Regulatory see the Comment Procedures Section of
participants would provide context for
Commission. this document.
such data, and help determine whether
ACTION: Notice of proposed rulemaking. FOR FURTHER INFORMATION CONTACT: there appears to be a legitimate business
David Pierce (Technical Information), rationale for seemingly anomalous
SUMMARY: The Federal Energy Office of Enforcement, Federal Energy trading patterns, or whether there may
Regulatory Commission (Commission) Regulatory Commission, 888 First be market manipulation, fraud, or abuse.
proposes to amend its regulations to Street NE, Washington, DC 20426, This in turn will further the
require each regional transmission (202) 502–6454, david.pierce@ Commission’s goal of detecting and
organization (RTO) and independent ferc.gov. deterring possible market manipulation.
system operator (ISO) to electronically Kathryn Kuhlen (Legal Information), As we explain below, the existing
deliver to the Commission, on an Office of Enforcement, Federal Energy affiliate disclosure requirements do not
ongoing basis, data required from its Regulatory Commission, 888 First appropriately enable the Commission to
market participants that would; first Street NE, Washington, DC 20426, identify and monitor these business
identify the market participants by (202) 502–6855, kathryn.kuhlen@ relationships.
means of a common alpha-numeric ferc.gov
identifier; and secondly list their I. Background
SUPPLEMENTARY INFORMATION:
‘‘Connected Entities,’’ which includes 1. In this Notice of Proposed 3. Beginning in the late 1960s, the
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
entities that have certain ownership, Rulemaking (NOPR), the Federal Energy electric industry gradually transformed
employment, debt, or contractual Regulatory Commission (Commission) itself from one populated by mostly self-
relationships to the market participants, proposes, pursuant to sections 222, sufficient vertically integrated utilities
as specified in this NOPR; and finally 301(b), 307(a) and 309 of the Federal compensated by cost-based rates, to
describe in brief the nature of the Power Act (FPA),1 to amend its
2 Federal Energy Regulatory Commission Strategic
relationship of each Connected Entity. regulations to require each regional
Plan FY 2014–2018, Objective 1.2 (Mar. 2014),
Such information will assist screening transmission organization (RTO) and available at http://www.ferc.gov/about/strat-docs/
and investigative efforts to detect market FY-2014-FY-2018-strat-plan.pdf.
manipulation, an enforcement priority 1 16 U.S.C. 824v, 825(b), 825f(a), 825(h). 3 Id.
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![58384 Federal Register / Vol. 80, No. 188 / Tuesday, September 29, 2015 / Proposed Rules
Moreover, more complete information feasibility of expanding our proposal to to the Commission’s jurisdiction.14 It
about these relationships will reduce require the submission of Connected also prohibits manipulation by ‘‘any
the number of informal inquiries in Entity information from non-RTO/ISO entity,’’ including entities exempted
response to false positive surveillance market participants, and on any from the Commission’s rate-related
screen trips that may result from an difficulties commentators might jurisdiction. Section 301(b) of the FPA
incomplete picture of market perceive to exist in doing so. provides that the Commission shall at
participants’ incentive structures. 14. The Commission recognizes that all times have access to, and the right to
this proposal would place additional inspect and examine all accounts and
Sources and Completeness of Connected burden on market participants to records of public utilities,15 which
Entity Information implement the new reporting includes RTOs and ISOs. Section 309 of
12. Although there are a few third- requirement and to submit the the FPA grants the Commission the
party sources of public information that Connected Entity information to the authority to ‘‘perform any and all acts,
contain data about the affiliate RTOs and ISOs as proposed. However, and to prescribe, issue, make, amend,
relationships of entities trading in the we believe that the benefits of this and rescind such orders, rules and
electric energy markets, their proposal will outweigh the additional regulations as it may find necessary and
information and manner of collection is burden imposed on market participants. appropriate to carry out the provisions
insufficient for the Commission’s Moreover, as noted above, each of the of [the FPA].’’ 16 And section 307(a) of
market monitoring responsibilities. six RTOs and ISOs already requires its the FPA provides that the Commission
These sources include vendors such as market participants to submit data has authority to investigate any facts,
Dun & Bradstreet, SNL Financial, and identifying certain affiliate conditions, practices, or matters it may
Ventyx. The primary service provided relationships. It is possible that some, if deem necessary or proper to determine
by these companies is tracking trading not all, market participants will be able whether any person, electric utility,
information, not compiling affiliate to use its existing processes for transmitting utility, or other entity may
data, and their affiliate information is reporting affiliate information to the have violated or might violate the FPA
generally derived from public sources RTOs and ISOs to lessen the burden of or the Commission’s regulations.17 It
that do not cover all market this proposed reporting. For market also has investigatory authority to aid in
participants. Further, whether such participants that are active in more than the enforcement of the FPA or the
information is current or complete one market, it is also possible that the Commission’s regulations, or to obtain
cannot be ascertained from the listings. burden of making a uniform Connected information about wholesale electric
Nor do such listings include entities Entity filing in all those markets, once energy sales or the transmission of
that are connected by contractual the initial implementation period is electric energy in interstate commerce.18
relationships, rather than ownership. over, would be no greater than the This investigatory authority is not
For all these reasons, an up-to-date, current burden of making multiple limited to a particular case or
reliable, and complete listing of affiliate filings, each of which is unique controversy, but allows an agency to
Connected Entities cannot be obtained to its particular RTO or ISO. For ‘‘investigate merely on suspicion that
from these third-party sources. participants in only one market, we the law is being violated, or even just
13. Obtaining Connected Entity data recognize that there will likely be an because it wants assurance that it is
from RTOs and ISOs leaves unaddressed increase in the administrative time not.’’ 19
similar data from entities operating needed for compliance. As for the RTOs
and ISOs themselves, we believe they 17. The Commission has already
outside the organized electric markets. required the RTOs and ISOs to provide
However, the Commission has would incur the initial implementation
costs required to make compliance this type of information to the
estimated, using Electric Quarterly Commission. Most notably, in Order No.
Report (EQR) data and existing filings to amend their tariffs to conform
the filed information to the new 760, the Commission required the RTOs
affiliation information gleaned from and ISOs to electronically deliver to it,
market-based rate filings and other Commission standards, and revising
their collection processes to be on an ongoing basis, data relating to
available sources, that approximately 90 physical and virtual offers and bids,
percent of the reported wholesale sales consistent with those standards.
market awards, resource outputs,
of electricity subject to the Authority To Acquire Connected Entity marginal cost estimates, shift factors,
Commission’s jurisdiction are made Information financial transmission rights, internal
either by market participants in one or 15. The Commission has the authority bilateral contracts, uplift, and
more of the six RTOs and ISOs, or by to require the type of record keeping interchange pricing.20 The information
companies related by ownership to such and submittals contemplated in this sought under this NOPR would
a market participant.13 Therefore, access NOPR. As discussed below, the typically be provided with less
to Connected Entity data for all the Commission’s anti-manipulation frequency than that which the RTOs and
market participants in each of the RTOs authority under section 222 of the FPA, ISOs submit under Order No. 760. And
and ISOs would provide most of such taken together with its investigative the submittal of Connected Entity data
data for all the transactions of interest authority under section 307(a) of the would be transmitted through the same
in the Commission’s electric FPA, its administrative powers under channels as the RTOs and ISOs already
manipulation screening. We invite section 309 of the FPA, and its employ for Order No. 760 data.
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
comment on the desirability and inspection and examination authority
13 These
under section 301(b) of the FPA, 14 16 U.S.C. 824v.
RTOs and ISOs are: ISO–NE., NYISO, 15 16 U.S.C. 825(b).
PJM, MISO, Southwest Power Pool, Inc., and provides ample basis for accessing
16 16 U.S.C. 825(h).
CAISO. The Electric Reliability Council of Texas is Connected Entity data. 17 16 U.S.C. 825f(a).
non-jurisdictional and not included in the 16. Section 222 of the FPA grants the 18 Id.
calculation. Staff determined this percentage by Commission authority over the 19 United States v. Morton Salt, 338 U.S. 632, 642
examining the Electric Quarterly Reports, which
must be filed by all public utilities and by non-
prohibition of market manipulation in (1950).
public utilities that trade above a de minimus connection with the purchase or sale of 20 See Order No. 760, FERC Stats. & Regs. ¶
amount. See 18 CFR 35.10(b) (2015). electric energy and transmission subject 31,330 at Summary.
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![Federal Register / Vol. 80, No. 188 / Tuesday, September 29, 2015 / Proposed Rules 58385
Additional Benefits and Confidentiality submitted under Part 1b of the c. An entity that is the holder or
of Connected Entity Data Commission’s regulations.23 issuer of a debt interest or structured
21. Connected Entity information that transaction that gives it the right to
18. Establishing common identifiers
is commercially sensitive, such as all or share in the market participant’s
and a uniform definition of Connected
part of the contractual arrangements profitability, above a de minimis
Entity, as is proposed in this NOPR,
among entities, may satisfy the amount, or that is convertible to an
would have the additional benefit of
requirements of exemption 4 of the ownership interest that, in connection
assisting the RTO/ISO market monitors
Freedom of Information Act (FOIA), with other ownership interests, gives
in their responsibilities to oversee the which protects ‘‘trade secrets and
markets. Market monitors could assess the entity, directly or indirectly, 10
commercial or financial information percent or more of the ownership
cross-market transactions and compare obtained from a person [that is]
their data with that produced by their instruments of the market participant; or
privileged or confidential.’’ 24 The non- an entity 10 percent of more of whose
neighboring market monitors, assured public information to be gathered under
that the data was accurate and ownership instruments could, with the
the proposed rule may also fall within conversion of debt or structured
consistent.21 the ambit of FOIA exemption 7, which
19. Understanding the relationship products and in combination with other
protects certain ‘‘records and ownership interests, be owned or
between connected entities can be an information compiled for law
important aspect of the Commission’s ex controlled, directly or indirectly, by a
enforcement purposes.’’ 25 market participant; or
post analysis, which is a critical element
Proposed Definition of a Connected d. Entities that have entered into an
of the market-based rate program. In
Entity agreement with the market participant
Lockyer, the Ninth Circuit cited with
that relates to the management of
approval the Commission’s dual 22. Over the years, the term ‘‘affiliate’’ resources that participate in
requirement of an ex ante finding of the has been used frequently in tariffs and Commission-jurisdictional markets, or
absence of market power and sufficient regulations, but not always with exactly otherwise relates to operational or
post-approval reporting requirements, the same definition. The term has also financial control of such resources, such
finding that the Commission does not usually centered on relationships as a tolling agreement,27 an energy
rely on ex ante market forces alone in involving control by virtue of an management agreement, an asset
approving market-based rate tariffs. In ownership interest.26 However, in management agreement,28 a fuel
particular, the court found that the carrying out the Commission’s management agreement, an operating
ongoing oversight and timely responsibility to oversee the markets for management agreement, an energy
reconsideration of market-based rate possible market manipulation, other
marketing agreement, or the like.29
authorization under section 205 of the relations may be equally worthy of We invite comment on the
FPA enables the Commission to meet its examination. We thus propose an appropriate threshold for a de minimis
statutory duty to ensure that all rates are entirely new term, to be used in share of a company’s profits.
just and reasonable.22 connection with investigatory data
20. The Commission anticipates that gathered for the purposes identified in Legal Entity Identifiers
submitting Connected Entity data would this NOPR, that of ‘‘Connected Entity.’’ 24. In the past, the Commission has
not place market participants under We propose to revise 18 CFR 35.28(g)(4) considered methods to ensure that there
increased risk in relation to the to define Connected Entity as follows: is no confusion as to the identification
disclosure of confidential or proprietary 23. A Connected Entity, which of entities subject to its jurisdiction. For
information. Some of the information to includes natural persons, is one which
be gathered by the RTOs and ISOs from stands in one or more of the following 27 Tolling agreements are common in the energy
participants is already publicly relationships to a market participant: industry, and in essence function as leasing
available. This would include, in the a. An entity that directly or indirectly contracts or options on a generating plant wherein
owns, controls, or holds with power to the ‘‘toller’’ has the right to the plant output at his
case of publicly-traded companies, data or her discretion.
found in their Securities and Exchange vote, 10 percent or more of the 28 Asset management agreements, in general, are
Commission (SEC) filings; in the case of ownership instruments of the market contractual relationships where a party agrees to
contractual control over a jurisdictional participant, including but not limited to manage fuel supply and delivery arrangements,
asset, the data would generally be voting and non-voting stock and general including transportation, for another party, and to
and limited partnership shares; or an consume the electricity produced or share in some
available through EQR reporting fashion in the revenues from the sale of that
requirements. To the extent, however, entity 10 percent or more of whose electricity.
that Connected Entity information is not ownership instruments are owned, 29 As the Commission observed in Order No. 697,
already public, we intend that the controlled, or held with power to vote, energy/asset managers provide a variety of services,
collection of Connected Entity directly or indirectly, by a market including, but not limited to, operating generation
participant; or an entity engaged in plants (sometimes under tolling agreements), acting
information be treated as non-public, to as billing agents, bundling transmission and power
the same extent as is Order No. 760 data Commission-jurisdictional markets that for customers, and scheduling transactions. Market-
and any other investigatory material is under common control with the Based Rates for Wholesale Sales of Electric Energy,
market participant; Capacity and Ancillary Services by Public Utilities,
b. The chief executive officer, chief Order No. 697, FERC Stats. & Regs. ¶ 31,252,
21 See Southwest Power Pool, Inc., 137 FERC ¶
clarified, 121 FERC ¶ 61,260 (2007), order on reh’g,
financial officer, chief compliance
asabaliauskas on DSK5VPTVN1PROD with PROPOSALS
61,046 at P 19 (2011) (‘‘[T]he Commission clarifies Order No. 697–A, FERC Stats. & Regs. ¶ 31,268,
that Market Monitoring Units, RTOs, and ISOs may officer, and the traders of a market clarified, 124 FERC ¶ 61,055, order on reh’g, Order
communicate referral information with each other participant (or employees who function No. 697–B, FERC Stats. & Regs. ¶ 31,285 (2008),
across regions . . . The Commission strongly in those roles, regardless of their titles); order on reh’g, Order No. 697–C, FERC Stats. &
encourages this type of communication, as long as Regs. ¶ 31,291 (2009), order on reh’g, Order No.
reasonable precautions are taken to ensure that all 697–D, FERC Stats. & Regs. ¶ 31,305 (2010), aff’d
23 18 CFR part. 1b (2015).
referral information remains non-public.’’); see also sub nom. Mont. Consumer Counsel v. FERC, 659
24 5 U.S.C. 552(b)(4); accord 18 CFR 388.107(d)
New York Independent System Operator, 136 FERC F.3d 910 (9th Cir. 2011), cert. denied, 133 S. Ct. 26
¶ 61,116 (2011). (2015). (2012). Regardless of the label attached to a
22 Cal. ex rel. Lockyer v. FERC, 383 F.3d 1006 (9th 25 5 U.S.C. 552(b)(7); accord 18 CFR 388.107(g)
particular contract, all such services would fall
Cir. 2004). See also Cal. v. FERC, 784 F.3d 1267 (9th (2015). within the ambit of the reporting requirement
Cir. 2015). 26 See, e.g., 18 CFR 35.36(a)(9) (2015). proposed in this NOPR.
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![Federal Register / Vol. 80, No. 188 / Tuesday, September 29, 2015 / Proposed Rules 58389
analysis of data submitted by the RTOs/ competitive or manipulative behavior objectives of a rule and that minimize
ISOs in accordance with Order No. 760. and to better inform Commission any significant economic impact on a
We estimate the number of Connected policies and regulations, and thus to substantial number of small entities.
Entities to be an additional 9,000 ensure that rates are just and reasonable. The Small Business Administration’s
companies, based on an analysis of data The Commission has assured itself, by (SBA) Office of Size Standards is
from Ventyx, a third party vendor which means of its internal review, that there responsible for the definition of a small
supplies ownership information about is specific, objective support for the business.44 These standards are
market participants. burden estimate associated with the provided on the SBA Web site.45 We
Information Collection Costs: We information requirements. reviewed the SBA’s current size
estimate the initial and ongoing cost of 50. Interested persons may obtain standards with respect to the three
compliance with the NOPR’s proposed information on the reporting classes of entities covered in the
requirements for each type of requirements by contacting the Federal proposed rule: RTOs/ISOs, market
respondent as follows: Energy Regulatory Commission, Office participants, and their Connected
of the Executive Director, 888 First Entities.
RTO/ISO Street NE., Washington, DC 20426 54. The SBA classifies an entity as an
Æ Initial Burden: 358 hours, $29,480. [Attention: Ellen Brown, email: electric utility if it is primarily engaged
Æ Ongoing Burden (starting year one): DataClearance@ferc.gov, phone: (202) in the transmission, generation and/or
560 hours, $32,924. 502–8663, fax: (202) 273–0873]. distribution of electric energy for sale.
51. Comments concerning the Under this definition, RTOs/ISOs are
Market Participant information collections proposed in this considered electric utilities. The size
Æ Initial Burden: 4 hours, $168 plus NOPR, and the associated burden criterion for a small electric utility is
$250 to acquire LEI. estimates, should be sent to the having 500 or fewer employees.46 Since
Æ Ongoing Burden (starting year two): Commission in this docket and may also every RTO and ISO has more than 500
5 hours, $201, plus $150 to maintain be sent to the Office of Management and employees, none are small entities.47
LEI. Budget, Office of Information and 55. Market participants and their
Regulatory Affairs, Washington, DC Connected Entities are likely to be in
Connected Entity
20503 [Attention: Desk Officer for the several market sectors and therefore
Æ Ongoing Burden (starting year one): Federal Energy Regulatory subject to a variety of SBA size
1.25 hours, $53. Commission]. For security reasons, standards. We have identified a broad
Title: FERC–921,39 Ongoing comments should be sent by email to cross-section of the most likely SBA
Electronic Delivery of RTO/ISO Data. OMB at the following email address: market sectors for participants and their
Action: Proposed revisions to existing oira_submission@omb.eop.gov. Please Connected Entities. Industries in these
information collection. reference FERC–921 and OMB Control subsectors include utilities, oil and gas
OMB Control No.: 1902–0257. No. 1902–0257 in your submission. production, mining, finance, and
Respondents for this Rulemaking: leasing. Among these sectors, there are
V. Environmental Analysis
RTOs and ISOs; market participants; various criteria and thresholds for
Connected Entities. 52. The Commission is required to determining whether a business is
Frequency of Information: Initial prepare an Environmental Assessment small, but the numbers of employees do
implementation, compliance filing, and or an Environmental Impact Statement not exceed 1,000, and the revenues do
periodic updates (at least annually). for any action that may have a not exceed $38.5 million.48
48. Necessity of Information: As significant adverse effect on the human 56. While many market participants
wholesale electricity markets continue environment.40 The Commission has and Connected Entities are some of the
to develop and evolve, new categorically excluded certain actions largest businesses in the United States
opportunities arise for anti-competitive from these requirements as not having a (for example, large electric utilities and
or manipulative behavior. The significant effect on the human commercial banks), other market
Commission’s market monitoring and environment.41 The actions proposed participants, such as individual power
surveillance capabilities and associated here fall within a categorical exclusion plants or small trading firms, would
data requirements must keep pace with in the Commission’s regulations, i.e., qualify as small under the SBA
market developments and evolve along they involve information gathering, standards. It is difficult to estimate the
with the markets. The data discussed in analysis, and dissemination.42 size of all the entities affected by this
this NOPR will allow the Commission to Therefore, environmental analysis is proposed rule since many of smaller
more effectively identify and address unnecessary and has not been entities may be privately held with little
such behavior; to identify ineffective performed. public information available. However,
market rules; to better inform VI. Regulatory Flexibility Act 44 13 CFR 121.101 (2015).
Commission policies and regulations;
53. The Regulatory Flexibility Act of 45 U. S. Small Business Administration, Table of
and thus to help ensure just and
1980 (RFA) 43 generally requires a Small Business Size Standards Matched to North
reasonable rates. American Industry Classification System Codes
description and analysis of proposed
49. Internal Review: The Commission (effective July 14, 2014), available at https://
rules that will have significant www.sba.gov/sites/default/files/Size_Standards_
has made a preliminary determination
economic impact on a substantial Table.pdf.
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that the proposed revisions are
number of small entities. The RFA 46 13 CFR 121.101 (Sector 22, Utilities). Of note,
necessary to keep pace with ever- the SBA recently revised its size standard for
mandates consideration of regulatory
changing possibilities for anti- electric utilities (effective January 22, 2014) from a
alternatives that accomplish the stated standard based on megawatt hours to one based on
39 OATT compliance filings (like the one-time the number of employees, including affiliates.
40 Regulations Implementing the National 47 For five of the RTOs/ISOs, full-time employee
compliance filing here) are normally included
under FERC–516 (OMB Control No. 1902–0096). Environmental Policy Act of 1969, Order No. 486, estimates are based on human resources reports
However, the reporting requirements (including the 52 FR 47897, FERC Stats. & Regs. ¶ 30,783 (1987). published on the Web site of each RTO/ISO. For the
41 18 CFR 380.4 (2015).
compliance filing) contained in this proposed rule sixth RTO/ISO, the full-time employee estimate was
42 See 18 CFR 380.4(a)(5). obtained from the Chief Financial Officer.
in Docket No. RM15–23–000 will be included in
FERC–921. 43 5 U.S.C. 601–12. 48 13 CFR 121.101.
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Document Created: 2015-12-15 09:46:20
Document Modified: 2015-12-15 09:46:20
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Comments on the proposed rule are due November 30, 2015. | |
| Contact | David Pierce (Technical Information), Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6454, [email protected] Kathryn Kuhlen (Legal Information), Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6855, [email protected] | |
| FR Citation | 80 FR 58382 | |
| CFR Associated | Electric Power Rates; Electric Utilities and Reporting and Recordkeeping Requirements |
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