16394 Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Notices 

1Estimated number of hours and employee works 

each year. 

2Estimated average annual cost per employee. 

www.ferc.gov/help/submissionguide.asp. eFiling instructions are 

available at: http://www.ferc.gov/docsfiling/efiling.asp. First time users must 

follow eRegister instructions at: http:// 

www.ferc.gov/docs-filing/ 

eregistration.asp, to establish a 

username and password before eFiling. 

The Commission will send an automatic 

acknowledgement to the sender’s e-mail 

address upon receipt of eFiled 

comments. Commenters making an 

eFiling should not make a paper filing. 

Commenters that are not able to file 

electronically must send an original of 

their comments to: Federal Energy 

Regulatory Commission, Secretary of the 

Commission, 888 First Street, NE., 

Washington, DC 20426. 

Users interested in receiving 

automatic notification of activity in this 

docket may do so through eSubscription 

at http://www.ferc.gov/docs-filing/ 

esubscription.asp. In addition, all 

comments and FERC issuances may be 

viewed, printed or downloaded 

remotely through FERC’s eLibrary at 

http://www.ferc.gov/docs-filing/ 

elibrary.asp, by searching on Docket No. 

IC11–521. For user assistance, contact 

FERC Online Support by e-mail at 

ferconlinesupport@ferc.gov, or by phone 

at: (866) 208–3676 (toll-free), or (202) 

502–8659 for TTY. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Brown may be reached by e-mail 

at DataClearance@FERC.gov, telephone 

at (202) 502–8663, and fax at (202) 273– 

0873. 

SUPPLEMENTARY INFORMATION: The 

information collected under the 

requirements of FERC–521 ‘‘Payments 

for Benefits from Headwater Benefits’’ 

(OMB No. 1902–0087) is used by the 

Commission to implement the statutory 

provisions of section 10(f) of the Federal 

Power Act (FPA) (16 USC 803). The FPA 

authorizes the Commission to determine 

headwater benefits received by 

downstream hydropower project 

owners. Headwater benefits is the 

additional energy production possible at 

a downstream hydropower project 

resulting from the regulation of river 

flows by an upstream storage reservoir. 

When the Commission completes a 

study of a river basin, it determines 

headwater benefits charges that will be 

apportioned among the various 

downstream beneficiaries. A headwater 

benefits charge and the cost incurred by 

the Commission to complete an 

evaluation are paid by downstream 

hydropower project owners. In essence, 

the owners of non-Federal hydropower 

projects that directly benefit from a 

headwater improvement must pay an 

equitable portion of the annual charges 

for interest, maintenance, and 

depreciation of the headwater project to 

the U.S. Treasury. The regulations 

provide for apportionment of these costs 

between the headwater project and 

downstream projects based on 

downstream energy gains and propose 

equitable apportionment methodology 

that can be applied to all rivers basins 

in which headwater improvements are 

built. The Commission requires owners 

of non-Federal hydropower projects to 

file data for determining annual charges 

as outlined in 18 Code of Federal 

Regulations (CFR) part 11. 

ACTION: The Commission is requesting a 

three-year extension of the current 

expiration date with no changes to the 

existing collection of data. 

Burden Statement: Public reporting 

burden for this collection is estimated 

as: 

Data collection 

Number of 

respondents 

annually 

Number of 

responses per 

respondent 

Average 

burden hours 

per response 

Total annual 

burden hours 

(1) (2) (3) (1) × (2) × (3) 

FERC–521 ....................................................................................................... 3 1 40 120 

Estimated cost burden to respondents 

is $8,213.77 (120 hours/2,080 hours 1

per year, times $142,372 2 = $8,213.77). 

The cost per respondent is $2,738. 

The reporting burden includes the 

total time, effort, or financial resources 

expended to generate, maintain, retain, 

disclose, or provide the information 

including: (1) Reviewing instructions; 

(2) developing, acquiring, installing, and 

utilizing technology and systems for the 

purposes of collecting, validating, 

verifying, processing, maintaining, 

disclosing and providing information; 

(3) adjusting the existing ways to 

comply with any previously applicable 

instructions and requirements; (4) 

training personnel to respond to a 

collection of information; (5) searching 

data sources; (6) completing and 

reviewing the collection of information; 

and (7) transmitting, or otherwise 

disclosing the information. 

The estimate of cost for respondents 

is based upon salaries for professional 

and clerical support, as well as direct 

and indirect overhead costs. Direct costs 

include all costs directly attributable to 

providing this information, such as 

administrative costs and the cost for 

information technology. Indirect or 

overhead costs are costs incurred by an 

organization in support of its mission. 

These costs apply to activities which 

benefit the whole organization rather 

than any one particular function or 

activity. 

Comments are invited on: (1) Whether 

the proposed collection of information 

is necessary for the proper performance 

of the functions of the Commission, 

including whether the information will 

have practical utility; (2) the accuracy of 

the agency’s estimate of the burden of 

the proposed collection of information, 

including the validity of the 

methodology and assumptions used; (3) 

ways to enhance the quality, utility and 

clarity of the information to be 

collected; and (4) ways to minimize the 

burden of the collection of information 

on those who are to respond, including 

the use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology 

e.g., permitting electronic submission of 

responses. 

Dated: March 16, 2011. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. 2011–6741 Filed 3–22–11; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Docket No. RM11–14–000] 

Analysis of Horizontal Market Power 

Under the Federal Power Act 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Notice of inquiry. 

SUMMARY: In this Notice of Inquiry, the 

Federal Energy Regulatory Commission 

seeks comment on whether, and if so, 

how, the Commission should revise its 

approach for examining horizontal 


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Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Notices 16395 

1 16 U.S.C. 824b. 

2 16 U.S.C. 824d. 

3 Inquiry Concerning the Commission’s Merger 

Policy Under the Federal Power Act: Policy 

Statement, Order No. 592, FERC Stats. & Regs. ¶ 

31,044, at 30,111 (1996), reconsideration denied, 

Order No. 592–A, 79 FERC ¶ 61,321 (1997) (Merger 

Policy Statement). The Energy Policy Act of 2005 

added the requirement that the Commission find 

that the transaction will not result in inappropriate 

cross-subsidization, unless the Commission 

determines that such cross-subsidization will be 

consistent with the public interest. Energy Policy 

Act of 2005, Public Law 109–58, 1289, 119 Stat. 

594, 982–83 (2005), codified, 16 U.S.C. 824b(a)(4). 

4U.S. Dept. of Justice & Federal Trade 

Commission, ‘‘Horizontal Merger Guidelines’’ 

(1992), as revised (1997) (1992 Guidelines). 

5Merger Policy Statement, FERC Stats. & Regs. at 

30,118. The five steps are: (1) Defining the markets; 

(2) evaluating whether the extent of concentration 

of the market raise concerns about potential adverse 

competitive effects; (3) assessing whether entry 

could counteract such concerns; (4) assessing any 

efficiency gains that cannot otherwise be gauged; 

and (5) assessing whether either party to the merger 

would fail without the merger, causing its assets to 

exit the market. 

6The HHI is a widely accepted measure of market 

concentration, calculated by squaring the market 

share of each firm competing in the market and 

summing the results. The HHI increases both as the 

number of firms in the market decreases and as the 

disparity in size between those firms increases. 

Both the Antitrust Agencies and the Commission 

use HHI to assess market concentration. See infra 

P 10, 12. 

7Merger Policy Statement, FERC Stats. & Regs. at 

30,119–20, 30,128–37. 

market power concerns in transactions 

under § 203 of the Federal Power Act to 

reflect the Horizontal Merger Guidelines 

issued by the Department of Justice and 

Federal Trade Commission on August 

19, 2010 (2010 Guidelines), and what 

impact the 2010 Guidelines should 

have, if any, on the Commission’s 

analysis of horizontal market power in 

its electric market-based rate program. 

DATES: Comments are due May 23, 2011. 

ADDRESSES: You may submit comments, 

identified by docket number by any of 

the following methods: 

• Agency Web site: http://ferc.gov. 

Documents created electronically using 

word processing software should be 

filed in native applications or print-toPDF format and not in a scanned format. 

• Mail/Hand Delivery: Commenters 

unable to file comments electronically 

must mail or hand deliver an original 

copy of their comments to: Federal 

Energy Regulatory Commission, 

Secretary of the Commission, 888 First 

Street, NE., Washington, DC 20426. 

FOR FURTHER INFORMATION CONTACT: 

Stephen J. Hug (Legal Information), 

Office of General Counsel—Energy 

Markets, Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426. (202) 502– 

8009. 

Eugene Lee (Technical Information), 

Office of Energy Market Regulation, 

Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426. (202) 502– 

6195. 

SUPPLEMENTARY INFORMATION: 

Notice of Inquiry 

March 17, 2011 

1. In this Notice of Inquiry, the 

Federal Energy Regulatory Commission 

(Commission) seeks comment on 

whether, and if so, how, the 

Commission should revise its approach 

for examining horizontal market power 

concerns in transactions under § 203 of 

the Federal Power Act (FPA) 1 to reflect 

the Horizontal Merger Guidelines issued 

by the Department of Justice (DOJ) and 

Federal Trade Commission (FTC) 

(together, the Antitrust Agencies) on 

August 19, 2010 (2010 Guidelines), and 

what impact the 2010 Guidelines should 

have, if any, on the Commission’s 

analysis of horizontal market power in 

its electric market-based rate program 

under § 205 of the FPA.2

I. Background 

A. Section 203 

2. Section 203(a)(4) of the FPA 

requires the Commission to approve a 

proposed disposition, consolidation, 

acquisition, or change in control if it 

finds that the proposed transaction will 

be consistent with the public interest. In 

the 1996 Merger Policy Statement, the 

Commission set out the three factors it 

generally considers when analyzing 

whether a proposed § 203 transaction is 

consistent with the public interest: 

effect on competition, effect on rates, 

and effect on regulation.3 In analyzing 

whether a proposed transaction will 

have an adverse effect on competition, 

the Merger Policy Statement adopted 

the Antitrust Agencies’ 1992 Horizontal 

Merger Guidelines (1992 Guidelines) 4

and its five-step framework,5 as well as 

the Appendix A analytic screen, based 

on the 1992 Guidelines, to identify 

transactions that would not harm 

competition. The components to a 

screen analysis are as follows: (1) 

Identify the relevant products; (2) for 

the purpose of determining the size of 

the geographic market, identify 

customers who may be affected by the 

merger; (3) for the purpose of 

determining the size of the geographic 

market, identify potential suppliers to 

each identified customer (includes a 

delivered price test (DPT) analysis, 

consideration of transmission 

capability, and a check against actual 

trade data); and (4) analyze market 

concentration using the HerfindahlHirschman Index (HHI) 6 thresholds 

from the 1992 Guidelines.7

3. The Commission adopted the HHI 

thresholds set forth in the 1992 

Guidelines to classify a market as 

unconcentrated, moderately 

concentrated, and highly concentrated, 

and to assess the competitive 

significance of the change in HHI 

resulting from a proposed transaction. 

The Commission, based on the 1992 

Guidelines, classifies a market as 

unconcentrated if the post-merger HHI 

in the market is below 1,000 points and 

considers mergers that result in an 

unconcentrated market as unlikely to 

have adverse competitive effects, 

regardless of the change in HHI 

resulting from the merger. 

4. The Commission classifies a market 

as moderately concentrated if the postmerger HHI ranges from 1,000 to 1,800. 

Under the Commission’s standards, a 

merger in a moderately concentrated 

market that involves an increase in HHI 

of more than 100 points is considered to 

potentially raise significant competitive 

concerns. The Commission currently 

classifies a market as highly 

concentrated if the post-merger market’s 

HHI exceeds 1,800 and considers 

mergers that result in a change in HHI 

that is greater than 50 points as 

potentially raising significant 

competitive concerns. If the change in 

HHI exceeds 100 points, the merger is 

presumed to create or enhance market 

power. 

5. The Commission revised its 

regulations to reflect the adoption of the 

1992 Guidelines in the analysis of 

horizontal market power in § 203 

transactions. Section 2.26 of the 

Commission’s regulations states: 

(a) The Commission has adopted a Policy 

Statement on its policies for reviewing 

transactions subject to section 203. That 

Policy Statement can be found at 77 FERC 

61,263 (1996). The Policy Statement is a 

complete description of the relevant 

guidelines. Paragraphs (b)-(e) of this section 

are only a brief summary of the Policy 

Statement. 

* * * * * 

(c) Effect on competition. Applicants 

should provide data adequate to allow 

analysis under the Department of Justice/ 

Federal Trade Commission Merger 

Guidelines, as described in the Policy 


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8 18 CFR 2.26. 

9Merger Policy Statement, FERC Stats. & Regs. at 

30,118. 

10 Id. 

11FPA Section 203 Supplemental Policy 

Statement, FERC Stats. & Regs. ¶ 31,253, at P 69– 

70 (2007), order on clarification, 122 FERC ¶ 

61,157, at P 15 (2008). 

12Northeast Utilities Service Co., 993 F.2d 937, 

947 (1st Cir. 1993). 

13Revised Filing Requirements Under Part 33 of 

the Commission’s Regulations, Order No. 642, FERC 

Stats. & Regs. ¶ 31,111, at 31,898 (2000) (1992 

Guidelines sec. 0.2 Overview). These factors are 

codified at 18 CFR 33.3(f). The 2010 Guidelines 

retain these steps, but place less emphasis on them. 

14 Market-Based Rates for Wholesale Sales of 

Electric Energy, Capacity and Ancillary Services by 

Public Utilities, Order No. 697, FERC Stats. & Regs. 

¶ 31,252, at P 62, 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). 

15AEP Power Marketing, Inc., 97 FERC ¶ 61,219, 

at 61,969 (2001); AEP Power Marketing, Inc., 107 

FERC ¶ 61,018, at P 8, 102 (April 14 Order), order 

on reh’g, 108 FERC ¶ 61,026 (2004). 16Order No. 697, FERC Stats. & Regs. ¶ 31,252 at 

P 62. 17As explained further below, the Antitrust 

Agencies use HHI as a method of classifying a 

market based on its level of concentration. See infra 

P 12. Under the 1992 Guidelines, a market with an 

HHI above 1,800 is considered to be highly 

concentrated. 1992 Guidelines sec. 1.5. 

18Order No. 697, FERC Stats. & Regs. ¶ 31,252 at 

P 80, 89–93. 

19 Id. P 110–111; April 14 Order, 107 FERC ¶ 

61,018 at P 110–11. 

20Order No. 697, FERC Stats. & Regs. ¶ 31,252 at 

P 110 (citing Comments of the U.S. Department of 

Justice in response to Notice of Inquiry Regarding 

Market-Based Ratemaking for Oil Pipelines, Docket 

No. RM94–1–000 (Jan. 18 1994)). 

21 2010 Guidelines sec. 1. 

Statement and Appendix A to the Policy 

Statement.8

6. The Commission described the 

1992 Guidelines as a well-accepted 

standard approach for evaluating the 

competitive effects of mergers but noted 

that the 1992 Guidelines ‘‘are just that— 

guidelines. They provide analytical 

guidance but do not provide a specific 

recipe to follow.’’ 9 In addition, the 

Commission noted analytic challenges 

in applying the 1992 Guidelines to the 

electric power industry, ‘‘because the 

industry is evolving very rapidly and 

because the industry has some unique 

features.’’ The Commission explained 

that an analysis that follows the 1992 

Guidelines still requires many 

assumptions and judgments to fit 

specific fact situations.10 In the 

Supplemental Policy Statement, the 

Commission noted that the Antitrust 

Agencies use ‘‘informal and non-public 

processes for reviewing transactions,’’ in 

contrast to the public process used by 

the Commission.11 The courts have also 

acknowledged that the Commission’s 

standard of review is whether a 

transaction is ‘‘consistent with the 

public interest,’’ and that the 

Commission was not intended to 

enforce antitrust policy in conjunction 

with the Antitrust Agencies.12

7. The Commission subsequently 

issued Order No. 642, which stated that, 

consistent with the 1992 Guidelines, 

applicants that failed the competitive 

screen could submit evidence to assist 

the Commission in evaluating the 

following factors to show that the 

proposed transaction would not have an 

adverse effect on competition: (1) The 

potential adverse competitive effects of 

the merger; (2) whether entry by 

competitors can deter anticompetitive 

behavior or counteract adverse 

competitive effects; (3) the effects of 

efficiencies that could not be realized 

absent the merger; and (4) whether one 

or both of the merging firms is failing 

and, absent the merger, the failing firm’s 

assets would exit the market.13

B. Market-Based Rates 

8. With respect to the Commission’s 

analysis of horizontal market power in 

its market-based rate program, the 

Commission employs two preliminary 

screens—the wholesale market share 

indicative screen and the pivotal 

supplier indicative screen—and failure 

of either screen results in a rebuttable 

presumption of horizontal market 

power. The intent of the indicative 

screens is to identify those sellers that 

raise no horizontal market power 

concerns and can otherwise be 

considered for market-based rate 

authority.14

9. The Commission has traditionally 

employed a 20 percent threshold for the 

wholesale market share screen (a seller 

with a market share of less than 20 

percent passes the screen).15 The 

Commission stated that the use of such 

conservative thresholds at the indicative 

screen stage of a proceeding is 

warranted because the indicative 

screens are meant to identify those 

sellers that raise no horizontal market 

power concerns, as well as those that 

require further examination.16 The 

Commission reasoned that a 20 percent 

threshold for the wholesale market 

share screen struck the proper balance 

between identifying sellers that may 

present market power concerns, while 

avoiding the risk of ‘‘false negatives’’ and 

imposing undue regulatory burdens on 

sellers. Several protesters argued that 

the 20 percent threshold was too low in 

light of the 1992 Guidelines’ statement 

that firms with 35 percent or more 

market share have market power. The 

Commission rejected these arguments, 

stating that a market with five equalsized firms with 20 percent market 

shares will have an HHI of 2,000, which 

is above the HHI threshold used in the 

1992 Guidelines for a highlyconcentrated market,17 and that market 

power is more likely to be present at 

lower market shares in markets for 

commodities with low demand priceresponsiveness, like electricity, than in 

markets with high demand elasticity.18

10. Sellers that fail either indicative 

screen may rebut the presumption of 

market power in one of several ways, 

including by submitting a DPT analysis. 

The DPT defines the relevant market by 

identifying potential suppliers based on 

market prices, input costs, and 

transmission availability, and calculates 

each supplier’s economic capacity and 

available economic capacity for each 

season and load condition. The results 

of the DPT can be used for pivotal 

supplier, market share, and market 

concentration analyses. In analyzing 

market concentration in this context, the 

Commission uses an HHI threshold of 

2,500.19 In rejecting arguments that it 

should, consistent with the 1992 

Guidelines, adopt an HHI threshold of 

1,800, the Commission noted that the 

Department of Justice had previously 

advocated an HHI threshold of 2,500 for 

analyzing whether to grant market-based 

pricing for oil pipelines and that the 

Department of Justice had further stated 

that the Commission could reasonably 

conclude that an entity participating in 

a market with an HHI threshold of less 

than 2,500 had a rebuttable presumption 

that it did not have market power.20

II. The 2010 Guidelines 

11. The 2010 Guidelines set forth how 

the Antitrust Agencies will evaluate the 

competitive impact of mergers, focusing 

on whether a merger results in 

anticompetitive effects such as 

‘‘encouraging one or more firms to raise 

price, reduce output, diminish 

innovation, or otherwise harm 

customers as a result of diminished 

competitive constraints or 

incentives.’’ 21 The 2010 Guidelines 

replace the 1992 Guidelines and explain 

several changes to the analysis set forth 

in the 1992 Guidelines. 

12. Specifically, the 2010 Guidelines 

raise the HHI thresholds used by the 

Antitrust Agencies to classify a market 

as unconcentrated, moderately 

concentrated, or highly concentrated. 

The 2010 Guidelines modify the 

thresholds adopted in the 1992 

Guidelines for the purpose of classifying 

a particular market and assessing the 


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Federal Register / Vol. 76, No. 56 / Wednesday, March 23, 2011 / Notices 16397 

22 Id. 

23 Id. sec. 6.3. 

24 Id. sec. 13. 

25The 2010 Guidelines state that a voting interest 

in the target firm or specific governance rights, such 

as the right to appoint members to the board of 

directors, can permit such influence. Id. 

26The 2010 Guidelines state that acquiring a 

minority position in a rival might significantly 

blunt the incentive of the acquiring firm to compete 

aggressively because it shares in the losses inflicted 

on the rival. Id. 

27 Issues relating to partial acquisitions are among 

the issues before the Commission in Docket No. 

RM09–16–000. Control and Affiliation for Purposes 

of Market-Based Rate Requirements under Section 

205 of the Federal Power Act and the Requirements 

of Section 203 of the Federal Power Act, Notice of 

Proposed Rulemaking, FERC Stats. & Regs. ¶ 32,650 

(2010). 

significance of a post-merger change in 

HHI, as summarized in the table below. 

HHI (MARKET CONCENTRATION) THRESHOLDS

Market 1992 Guidelines 2010 Guidelines 

Unconcentrated ............................................................................................................................................ <1000 <1500 

Moderately Concentrated ............................................................................................................................ 1000–1800 1500–2500 

Highly Concentrated .................................................................................................................................... >1800 >2500 

HHI Changes Potentially Raising Significant Competitive Concerns 

Moderately Concentrated Markets .............................................................................................................. >100 >100 

Concentrated Markets ................................................................................................................................. >50 >100, <200 

HHI Changes Presumed Likely to Enhance Market Power 

Concentrated Markets ................................................................................................................................. >100 >200 

13. In addition, the 2010 Guidelines 

place less emphasis on market 

definition and the use of a prescribed 

formula for considering the effects of a 

merger than the 1992 Guidelines. 

Instead, the 2010 Guidelines state that 

the Antitrust Agencies will engage in a 

fact-specific inquiry using a variety of 

analytical tools, including direct 

evidence of competition between the 

parties and economic models that are 

designed to quantify the extent to which 

the merged firm can raise prices as a 

result of the merger.22 Section 6.3 of the 

2010 Guidelines provides additional 

guidance as to how the methods in the 

2010 Guidelines can be tailored to 

analyze markets involving relatively 

undifferentiated products. In particular, 

§ 6.3 of the 2010 Guidelines identifies 

factors that may indicate that a merged 

firm may find it profitable to 

unilaterally suppress output in a market 

involving relatively undifferentiated 

products.23

14. The 2010 Guidelines also address 

the potential competitive effects arising 

from partial acquisitions and minority 

ownership.24 The proposed analysis of 

a partial acquisition focuses on three 

principal effects: (1) Whether the 

acquiring company will be able to 

influence the competitive conduct of the 

target firm; 25 (2) whether the partial 

acquisition will reduce the financial 

incentive to compete because losses 

from one owned firm are offset by gains 

at the other; 26 and (3) whether the 

partial acquisition enables companies to 

access non-public competitive 

information that can lead to coordinated 

activity by the firms.27

III. Request for Comments 

15. The Commission seeks comment 

on whether, and if so, how, the 

Commission should revise its approach 

for examining horizontal market power 

concerns in transactions under § 203 of 

the FPA to reflect the 2010 Guidelines. 

As discussed above, the 2010 

Guidelines place less emphasis on 

market definition and the use of a 

prescribed formula for considering the 

effects of a merger than the 1992 

Guidelines. Should the Commission 

adopt this approach? If so, what 

elements of this approach should the 

Commission adopt? And how should 

the Commission incorporate these 

elements into its analysis? The 2010 

Guidelines’ reduced emphasis on 

market definition and prescribed 

formulas aside, should the Commission 

adopt the revised HHI levels in the 2010 

Guidelines in its analysis of whether a 

proposed transaction will adversely 

affect competition under § 203 of the 

FPA? 

16. For example, the 2010 Guidelines 

raise the HHI threshold for an 

unconcentrated market and classify a 

market where the post-merger HHI is 

below 1,500 as unconcentrated. Should 

the Commission adopt the 2010 

Guidelines’ classification? Or should the 

Commission continue to classify a 

market as unconcentrated if the postmerger HHI in the market is below 1,000 

points? 

17. While the 2010 Guidelines 

continue to retain a threshold of 100 

points for the purpose of assessing the 

significance of a post-merger change in 

HHI in a moderately concentrated 

market, the 2010 Guidelines classify a 

market with a post-merger HHI of 

between 1,500 and 2,500 as moderately 

concentrated. Should the Commission 

adopt the 2010 Guidelines’ 

classification of a moderately 

concentrated market, or should the 

Commission continue to classify a 

market as moderately concentrated if 

the post-merger HHI ranges from 1,000 

to 1,800? 

18. Under the 2010 Guidelines, a 

market is classified as highly 

concentrated if the post-merger HHI 

exceeds 2,500, and mergers that involve 

an increase in HHI of between 100 and 

200 points are considered to potentially 

raise significant competitive concerns, 

with mergers resulting in a change of 

greater than 200 points presumed to be 

likely to enhance market power. Should 

the Commission adopt the 2010 

Guidelines’ thresholds for the purpose 

of identifying a market as highly 

concentrated and assessing the 

competitive significance of a change in 

HHI resulting from a merger? Or should 

the Commission continue to classify a 

market as highly concentrated if the 

post-merger market’s HHI exceeds 

1,800? Also, should the Commission 

continue to consider mergers that result 

in a change in HHI that is greater than 

50 points as potentially raising 

significant competitive concerns, and 

that mergers resulting in a change in 

HHI exceeding 100 points are presumed 

to create or enhance market power? 

19. Should the Commission adopt any 

of the other aspects of the 2010 

Guidelines? If so, which ones, and how 

would the Commission incorporate 

these aspects into its market power 

analysis? 


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20. In this regard, we note that there 

are fundamental differences between the 

Commission’s process and that of the 

Antitrust Agencies. The Commission’s 

review process is public and parties can 

intervene and submit comments, while 

the review process at the Antitrust 

Agencies is nonpublic and closed. The 

Commission’s merger decision is based 

on a factual record shaped not only by 

the applicant, but by intervenors and 

subject to analysis by Commission staff. 

The merger decisions by the Antitrust 

Agencies are based on information 

submitted by the applicant, non-public 

information gathered by the agency 

staff, as well as the economic analysis 

performed by agency staff. The 

Commission seeks comment on whether 

the differences between the 

Commission’s process for considering 

applications under §§ 203 and 205 of 

the FPA and the process used by the 

Antitrust Agencies for considering 

mergers affect the extent to which the 

Commission should adopt the 2010 

Guidelines. 

21. Finally, the Commission also 

seeks comment on what impact the 2010 

Guidelines should have, if any, on the 

Commission’s analysis of horizontal 

market power in its electric marketbased rate program. 

IV. Comment Procedures 

22. The Commission invites interested 

persons to submit comments, and other 

information on the matters and issues 

identified in this notice. Comments are 

due May 23, 2011. Comments must refer 

to Docket No. RM11–14–000, and must 

include the commenter’s name, the 

organization they represent, if 

applicable, and their address in their 

comments. 

23. 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. 

24. Commenters that are not able to 

file comments electronically must send 

an original copy of their comments to: 

Federal Energy Regulatory Commission, 

Secretary of the Commission, 888 First 

Street, NE., Washington, DC 20426. 

25. 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. 

V. Document Availability 

26. 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 

FERC’s Home Page (http://www.ferc.gov) 

and in FERC’s Public Reference Room 

during normal business hours (8:30 a.m. 

to 5 p.m. Eastern time) at 888 First 

Street, NE., Room 2A, Washington DC 

20426. 

27. From FERC’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. 

28. User assistance is available for 

eLibrary and the FERC’s Web site during 

normal business hours from FERC 

Online Support at (202) 502–6652 (toll 

free at 1–866–208–3676) or e-mail at 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202) 502–8659. E-mail the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

By direction of the Commission. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. 2011–6738 Filed 3–22–11; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

Combined Notice of Filings #3 

Take notice that the Commission 

received the following electric rate 

filings: 

Docket Numbers: ER10–2288–004. 

Applicants: Optim Energy Marketing 

LLC. 

Description: Optim Energy Marketing 

LLC submits tariff filing per 35: Optim 

Market Based Rates Tariff to be effective 

8/20/2010. 

Filed Date: 03/14/2011. 

Accession Number: 20110314–5216. 

Comment Date: 5 p.m. Eastern Time 

on Monday, April 4, 2011. 

Docket Numbers: ER10–2763–001. 

Applicants: Bangor Hydro Electric 

Company. 

Description: Bangor Hydro Electric 

Company submits tariff filing per 35: 

Amendment to MBR Tariff to be 

effective 5/13/2011. 

Filed Date: 03/14/2011. 

Accession Number: 20110314–5213. 

Comment Date: 5 p.m. Eastern Time 

on Monday, April 4, 2011. 

Docket Numbers: ER11–1835–002. 

Applicants: Kingsport Power 

Company. 

Description: Kingsport Power 

Company submits tariff filing per 35: 

20110314 Kingsport AEP Op Co MBR 

Concurrence to be effective 10/8/2010. 

Filed Date: 03/14/2011. 

Accession Number: 20110314–5039. 

Comment Date: 5 p.m. Eastern Time 

on Monday, April 4, 2011. 

Docket Numbers: ER11–1838–002. 

Applicants: Wheeling Power 

Company. 

Description: Wheeling Power 

Company submits tariff filing per 35: 

20110314 Wheeling AEP Op Co MBR 

Concurrence to be effective 10/8/2010. 

Filed Date: 03/14/2011. 

Accession Number: 20110314–5041. 

Comment Date: 5 p.m. Eastern Time 

on Monday, April 4, 2011. 

Docket Numbers: ER11–2334–009. 

Applicants: Midwest Independent 

Transmission System Operator, Inc. 

Description: Midwest Independent 

Transmission System Operator, Inc. 

submits tariff filing per 35.17(b): ATC 

Notice of Succession Amendment II to 

be effective 2/9/2011. 

Filed Date: 03/14/2011. 

Accession Number: 20110314–5050. 

Comment Date: 5 p.m. Eastern Time 

on Monday, April 4, 2011. 

Docket Numbers: ER11–2530–001. 

Applicants: Pacific Gas and Electric 

Company. 

Description: Pacific Gas and Electric 

Company submits tariff filing per 35: 

Compliance Filing: SVP IA 

Modifications to be effective 2/28/2011. 

Filed Date: 03/14/2011. 

Accession Number: 20110314–5000. 

Comment Date: 5 p.m. Eastern Time 

on Monday, April 4, 2011. 

Docket Numbers: ER11–3068–000. 

Applicants: PJM Interconnection, 

L.L.C. 

Description: Cancellation of WMPAs 

of PJM Interconnection, L.L.C. 

Filed Date: 03/11/2011. 

Accession Number: 20110311–5162. 

Comment Date: 5 p.m. Eastern Time 

on Friday, April 1, 2011. 

Docket Numbers: ER11–3069–000. 

Applicants: Viridian Energy, Inc. 

Description: Viridian Energy, Inc. 

submits tariff filing per 35.12: Viridian 

Energy, Inc. Market Based Rate Tariff to 

be effective 3/14/2011. 

Filed Date: 03/14/2011. 


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