12132 Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Proposed Rules 

1This requirement is set forth in three 

regulations, 18 CFR 35.41(c), 284.288(a), and 

284.403(a). Each sets forth the requirement in 

identical language. 

2Policy Statement on Natural Gas and Electric 

Price Indices, 104 FERC ¶ 61,121, at P 37 (Initial 

Policy Statement), clarified, 105 FERC ¶ 61,282 

(2003) (2003 Clarification Order), further clarified, 

112 FERC ¶ 61,040 (2005) (2005 Clarification Order) 

(collectively, Policy Statement). 

3See Actions Regarding the Commission’s Policy 

on Price Index Formation and Transparency, and 

Indices Referenced in Natural Gas and Electric 

Tariffs, 173 FERC ¶ 61,237 (2020). 

4The term fixed-price refers to a negotiated 

natural gas contract for next-day or next-month 

delivery, and physical basis transactions for nextmonth delivery. These transaction types are defined 

in the FERC Form No. 552: Annual Report of 

Natural Gas Transactions (FERC Form No. 552). The 

FERC Form No. 552 requires market participants 

that annually buy or sell more than 2.2 trillion 

British Thermal Units (Btu) of physical natural gas 

to provide aggregated data related to their fixedprice, physical basis, Nymex plus and index-based 

transactions made in the next-day and next-month 

(bidweek) markets. 

5S&P Global Platts (Platts), Natural Gas 

Intelligence (NGI), Argus, and Natural Gas Week are 

examples of price index developers. 

6 Initial Report on Company-Specific Separate 

Proceedings and Generic Reevaluations; Published 

Natural Gas Price Data; and Enron Trading 

Strategies, Docket No. PA02–2–000, at 38 (Aug. 13, 

2002). 

Issued in Washington, DC, on February 22, 

2021. 

George Gonzalez, 

Acting Manager, Rules and Regulations 

Group. 

[FR Doc. 2021–03931 Filed 3–1–21; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Parts 35 and 284 

[Docket No. RM20–7–000] 

Safe Harbor Policy for Data Providers 

to Price Index Developers 

AGENCY: Federal Energy Regulatory 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Commission proposes to 

amend its regulations to codify the Safe 

Harbor Policy established in the 

Commission’s Policy Statement on 

Natural Gas and Electric Price Indices. 

Under the Safe Harbor Policy, data 

providers that report transactions to 

natural gas and electric price index 

developers consistent with the 

procedures set forth in the Policy 

Statement are afforded a rebuttable 

presumption that their transaction data 

is accurate, timely, and submitted in 

good faith. The proposed change does 

not modify the existing policy and is 

intended to promote voluntary reporting 

of wholesale natural gas and electricity 

transactions to price index developers 

by alleviating market participant 

concerns that the Safe Harbor Policy is 

not binding on the Commission. 

DATES: Comments are due June 1, 2021. 

ADDRESSES: Comments, identified by 

Docket No. RM20–7–000, may be filed 

electronically at http://www.ferc.gov in 

acceptable native applications and 

print-to-PDF, but not in scanned or 

picture format. For those unable to file 

electronically, comments may be filed 

by mail to: Federal Energy Regulatory 

Commission, Secretary of the 

Commission, 888 First Street NE, 

Washington, DC 20426. Hand-delivered 

comments must be delivered to: Federal 

Energy Regulatory Commission, 12225 

Wilkins Avenue, Rockville, Maryland 

20852. The Comment Procedures 

Section of this document contains more 

detailed filing procedures. 

FOR FURTHER INFORMATION CONTACT: 

Maxwell K. Multer (technical issues), 

Office of Enforcement, Federal Energy 

Regulatory Commission, 888 First 

Street NE, Washington, DC 20426 

(202) 502–6756 

Evan B. Oxhorn (legal issues), Office of 

the General Counsel, Federal Energy 

Regulatory Commission, 888 First 

Street NE, Washington, DC 20426 

(202) 502–8183 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

Paragraph Numbers 

I. Background—3. 

II. Discussion—9. 

III. Environmental Analysis—13. 

IV. Regulatory Flexibility Act Certification— 

14. 

V. Comment Procedures—18. 

VI. Document Availability—22. 

1. Under the Commission’s 

regulations, a data provider (a market 

participant that reports transaction data 

to price index developers) must submit 

accurate and factual information to 

price index developers, and not 

knowingly submit false or misleading 

information or omit material 

information.1 Pursuant to the 

Commission’s Safe Harbor Policy, 

which is currently set forth in the 

Commission’s Policy Statement on 

Natural Gas and Electric Price Indices,2

if the data provider can demonstrate 

that it has adopted and followed the 

standards for reporting set forth in the 

Commission’s Policy Statement, it will 

benefit from a rebuttable presumption 

that it has submitted its transactions 

accurately, timely, and in good faith. 

The Commission proposes to codify its 

Safe Harbor Policy in its regulations. 

The proposed change does not modify 

the existing policy and, together with 

the proposed Revised Policy Statement 

that the Commission is issuing 

concurrently, is intended to promote 

voluntary reporting of wholesale natural 

gas and electricity transactions to price 

index developers.3

2. To codify the Safe Harbor Policy, 

we specifically propose to amend 18 

CFR 35.41(c), 284.288(a), and 284.403(a) 

of the Commission’s regulations by 

adding language to indicate: (1) That 

there will be a rebuttable presumption 

of accuracy, timeliness, and good faith 

for data providers who submit 

transactions to price index developers 

in a manner consistent with the Policy 

Statement; and (2) that inadvertent 

reporting errors by such data providers 

will not constitute violations of those 

regulations. 

I. Background 

3. Natural gas indices play a vital role 

in the energy industry, as they are used 

to price billions of dollars of natural gas 

and electricity transactions annually in 

both the physical and financial markets. 

A natural gas index is a weighted 

average price derived from a set of 

fixed-price 4 natural gas transactions 

within distinct geographical boundaries 

that market participants voluntarily 

report to a price index developer.5

4. Natural gas indices serve as a proxy 

for the locational cost of natural gas in 

the daily and monthly markets, as many 

market participants reference index 

prices in their physical and financial 

transactions. Interstate natural gas 

pipelines, Independent System 

Operators (ISOs), and Regional 

Transmission Organizations (RTOs) 

reference natural gas indices in their 

FERC-jurisdictional tariffs for various 

terms and conditions of service. State 

commissions also use natural gas 

indices as benchmarks when reviewing 

the prudence of natural gas or electricity 

purchases. Finally, many natural gas 

financial derivative contracts used in 

hedging and speculation settle against 

the natural gas price indices. 

5. Given that natural gas price index 

developers use physical fixed-price 

natural gas transactions to calculate the 

price of published natural gas indices, it 

is important that the market for these 

transactions be robust, liquid, and 

transparent. The Commission’s 

investigation into the 2000–2001 

Western Energy Crisis revealed 

problems in how published natural gas 

price indices were generated that 

‘‘facilitate[ed], rather than 

discourage[d], manipulation and 

collusion.’’ 6 Recognizing the need to 

restore confidence in natural gas price 


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7 Initial Policy Statement, 104 FERC 61,121 at P 

5. 8 Id. 

9 Id. 

10Two index developers now include fixed-price 

transactions from the InterContinental Exchange 

(ICE) to increase the liquidity of their indices. Staff 

analysis of the estimated volumes reported to index 

developers does not include that supplemental 

information from ICE. 

11The Commission must estimate the volumes 

reported to price index developers on the FERC 

Form No. 552 because FERC Form No. 552 filers 

can provide aggregated data for themselves and 

their affiliates, some of whom may or may not 

report to index developers. Staff estimates this 

volume by calculating the average of the minimum 

volume reported (i.e., the total volume from filers 

with affiliates that all indicate that they report to 

price index developers) and the maximum possible 

volume reported (i.e., the total volume from filers 

with at least one affiliate that indicates that it 

reports to price index developers). 

12 Docket No. AD17–12–000. A staff-led technical 

conference addressing similar issues was held in 

2003 in Docket No. AD03–7–000. 

13AGA, Comments, Docket No. AD17–12–000, at 

7 (filed July 31, 2017); Tenaska Comments, Docket 

No. AD17–12–000, at 5 (filed July 31, 2017). 

indices, the Commission began an 

exhaustive analysis of these and related 

issues in the form of multiple staff white 

papers, two technical conferences, and 

a follow up staff workshop. 

6. At the conclusion of these efforts, 

the Commission issued its Policy 

Statement to explain what the 

Commission expects of natural gas and 

electric price indices and under what 

conditions the Commission will give 

industry participants safe harbor 

protection for good faith reporting of 

transaction data to entities that develop 

price indices.7 In particular, the 

Commission [created] a rebuttable 

presumption that companies and 

individuals that report trade data to 

price index developers in accordance 

with the standards adopted here are 

doing so in good faith, and will not be 

investigated or subjected to 

administrative penalties for inadvertent 

mistakes made in the course of reporting 

energy transaction information.8 Thus, 

the Commission adopted the Safe 

Harbor Policy for the explicit purpose of 

encourag[ing] more industry 

participants to contribute to the 

formation of price indices.9 Consistent 

with the Policy Statement, the 

Commission has not investigated or 

imposed penalties on any companies for 

inadvertent reporting errors. 

7. After the Policy Statement was 

issued, the natural gas volumes market 

participants reported to price index 

developers increased, which resulted in 

greater confidence in those indices. 

However, after 2010, the estimated 

traded volume of fixed-price natural gas 

transactions reported to price index 

developers began to decline 

significantly.10 FERC Form No. 552 data 

show that the estimated volume of 

fixed-price transactions voluntarily 

reported to price index developers 

declined by approximately 54% from 

2010 until 2019.11 At the same time that 

fixed-price reporting to price index 

developers decreased, the traded 

volume of natural gas transactions that 

referenced natural gas indices, known as 

index gas, increased. For example, FERC 

Form No. 552 data showed that index 

gas increased from 69% of the traded 

volumes in the U.S. physical natural gas 

market in 2010 to 82% in 2019. Figure 

1 shows the estimated physical natural 

gas volumes reported to index 

developers based on FERC Form No. 

552 data. 

8. Commission staff held a technical 

conference on June 29, 2017, which 

addressed index liquidity and 

transparency issues and potential 

actions the Commission could consider 

taking in order to increase both the 

volume of transactions reported to 

natural gas price index developers and 

the transparency of the physical natural 

gas price formation process.12 In post 

technical conference comments, a 

number of commenters suggested that 

placing the Safe Harbor Policy into the 

Commission’s regulations would help to 

provide regulatory certainty which in 

turn would lead to an increase in the 

number of data providers that would 

report their transactions to price index 

developers.13

II. Discussion 

9. The Commission proposes to revise 

three sections of its regulations, 18 CFR 

35.41(c), 284.288(a), and 284.403(a). 

Although each of the three sections 

applies to different jurisdictional 

entities, they set forth almost identical 

requirements. Section 35.41(c) applies 

to persons with or seeking authorization 

to engage in sales for resale of electric 

energy, capacity or ancillary services at 

market-based rates under section 205 of 

the Federal Power Act. Section 

284.288(a) applies to interstate pipelines 

that offer transportation service under 

subparts B or G of part 284. Section 


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12134 Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Proposed Rules 

14 18 CFR 35.41(c), (Market behavior rules); see 

also 18 CFR 284.288(a) (Code of conduct for 

unbundled sales service) (identical language); 18 

CFR 284.403(a) (Code of conduct for persons 

holding blanket marketing certificates) (identical 

language). 

15See, e.g., Panhandle Eastern Pipe Line Co. v. 

FERC, 198 F.3d 266, 269 (D.C. Cir. 1999). 

16See Supra P 8. 

17See, e.g., American Gas Association, PostTechnical Conference Comments, Docket No. 

AD17–12–000, at 7 (filed July 31, 2017) (‘‘. . .there 

is a perception that a ‘‘fat finger’’ error could result 

in a party being the subject of an investigation.’’); 

Edison Electric Institute, Post-Technical Conference 

Comments, Docket No. AD17–12–000, at 5 (filed 

July 31, 2017) (‘‘Despite [the Policy Statement], as 

indicated during the technical conference, there is 

a perceived regulatory risk associated with 

transaction reporting and a concern that it will 

invite costly audits and enforcement actions even 

for inadvertent errors.’’). 

18Regulations Implementing the National 

Environmental Policy Act of 1969, Order No. 486, 

FERC Stats. & Regs. 30,783 (1987) (cross-referenced 

at 41 FERC ¶ 61,284). 

19 18 CFR 380.4. 

20See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5). 

21 5 U.S.C. 601–612. 

22 13 CFR 121.201 (2020), sector 22 (Utilities), 

NAICS codes 221210 (Natural Gas Distribution) and 

221122 (Electric Power Distribution). 

284.403(a) applies to sales for resale by 

persons that are not interstate pipelines. 

Each section currently requires that data 

providers reporting transactions to price 

index developers provide accurate, 

factual information, and not knowingly 

submit false or misleading information 

or omit material information. 

Reporting must be performed 

consistent with the procedures set forth 

in the Policy Statement.14 The 

regulations do not incorporate the Safe 

Harbor Policy. 

10. Currently, the Safe Harbor Policy 

is set forth in the Policy Statement, 

which advises the public about how the 

Commission intends to exercise its 

discretionary authority. The Policy 

Statement, however, is non-binding.15

Although the Commission has never 

pursued enforcement action against a 

market participant for inadvertent errors 

in reporting transactions to price index 

developers, concerns nonetheless 

remain among market participants that 

this potential exists.16

11. To alleviate these concerns and 

encourage voluntary reporting in order 

to promote more robust, liquid, and 

transparent indices, we propose to add 

identical language to 18 CFR 35.41(c), 

284.288(a), and 284.403(a) to 

incorporate the Safe Harbor Policy into 

the regulatory text. This proposed 

language states that ‘‘[f]or a Seller who 

reports in a manner consistent with 

procedures set forth in the Policy 

Statement, there will be a rebuttable 

presumption that information submitted 

to publishers of electricity or natural gas 

indices is accurate, timely, and 

submitted in good faith.’’ The proposed 

revisions also state that ‘‘[i]nadvertent 

reporting errors by a Seller who reports 

in a manner consistent with the 

procedures set forth in the Policy 

Statement shall not constitute violations 

of this provision.’’ This action will 

eliminate any concerns that the 

Commission might choose to depart 

from the Safe Harbor Policy as set forth 

in the Policy Statement. 

12. By incorporating the Safe Harbor 

Policy into the Commission’s 

regulations, the Commission will 

provide certainty to the regulated 

industry that, provided that the data 

provider reports in a manner consistent 

with the Policy Statement, inadvertent 

errors in reporting will not constitute 

violations of the Commission’s 

regulations requiring accurate reporting 

and will not give rise to civil penalties. 

Under the proposed language, for data 

providers that report consistent with the 

Policy Statement, only intentional or 

reckless behavior may give rise to 

liability. Based on industry comments 

during and after the technical 

conference,17 we believe that 

incorporation of the Safe Harbor Policy 

into the Commission’s regulations will 

provide greater certainty to market 

participants and will lead to increased 

voluntary reporting to price index 

developers. 

III. Environmental Analysis 

13. 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.18 The Commission has 

categorically excluded certain actions 

from these requirements as not having a 

significant effect on the human 

environment.19 The actions proposed 

here fall within the categorical 

exclusions in the Commission’s 

regulations for rules that are clarifying, 

corrective, or procedural, and for 

information gathering, analysis, and 

dissemination.20 Therefore, an 

environmental assessment is 

unnecessary and has not been prepared 

in this Notice of Proposed Rulemaking. 

IV. Regulatory Flexibility Act 

Certification 

14. The Regulatory Flexibility Act of 

1980 (RFA) 21 generally requires a 

description and analysis of proposed 

rules that will have significant 

economic impact on a substantial 

number of small entities. The RFA does 

not mandate any particular outcome in 

a rulemaking. It only requires 

consideration of alternatives that are 

less burdensome to small entities and an 

agency explanation of why alternatives 

were rejected. 

15. The Small Business 

Administration (SBA) size standards for 

natural gas and electric utilities are 

based on the number of employees, 

including affiliates. Under the SBA’s 

standards, some data providers will fall 

under the following categories and 

associated size thresholds: Natural Gas 

Distribution and Electric Power 

Distribution, both at 1000 employees.22

16. Because data providers who 

choose to report their transactions are 

already required to submit data 

consistent with the Policy Statement in 

order to receive the protections of the 

Safe Harbor Policy, the Commission 

estimates that there will be no 

additional compliance burden as a 

result of this proposed rule. 

17. Based on the above, the 

Commission certifies that 

implementation of the proposed rule 

will not have a significant impact on a 

substantial number of small entities. 

Accordingly, no initial regulatory 

flexibility analysis is required. 

V. Comment Procedures 

18. 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 June 1, 2021. 

Comments must refer to Docket No. 

RM20–7–000, and must include the 

commenter’s name, the organization 

they represent, if applicable, and their 

address. 

19. The Commission encourages 

comments to be filed electronically via 

the eFiling link on the Commission’s 

website 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. 

20. 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. 

21. 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 


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Federal Register / Vol. 86, No. 39 / Tuesday, March 2, 2021 / Proposed Rules 12135 

on this proposal are not required to 

serve copies of their comments on other 

commenters. 

VI. Document Availability 

22. 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). At this time, the 

Commission has suspended access to 

the Commission’s Public Reference 

Room, due to the proclamation 

declaring a National Emergency 

concerning the Novel Coronavirus 

Disease (COVID–19), issued by the 

President on March 13, 2020. 

23. 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. 

24. User assistance is available for 

eLibrary and the Commission’s website 

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 

18 CFR Part 35 

Electric power rates, Electric utilities, 

Reporting and recordkeeping 

requirements. 

18 CFR Part 284 

Continental shelf, Natural gas, 

Reporting and recordkeeping 

requirements. 

By direction of the Commission. 

Commissioner Clements is not participating. 

Dated: December 17, 2020. 

Kimberly D. Bose, 

Secretary. 

In consideration of the foregoing, the 

Commission is proposing to amend 

parts 35 and 284, chapter I, title 18, 

Code of Federal Regulations, as follows. 

PART 35—FILING OF RATE 

SCHEDULES AND TARIFFS 

■ 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. 

■ 2. Revise § 35.41(c) to read as follows: 

§ 35.41 Market behavior rules. 

* * * * * 

(c) To the extent Seller engages in 

reporting of transactions to publishers of 

electricity or natural gas indices, Seller 

must provide accurate and factual 

information, and not knowingly submit 

false or misleading information or omit 

material information to any such 

publisher, by reporting its transactions 

in a manner consistent with the 

procedures set forth in the Policy 

Statement, issued by the Commission in 

Docket No. PL03–3–000 and any 

clarifications thereto. For a Seller who 

reports in a manner consistent with 

procedures set forth in the Policy 

Statement, there will be a rebuttable 

presumption that information submitted 

to publishers of electricity or natural gas 

indices is accurate, timely, and 

submitted in good faith. Inadvertent 

reporting errors by a Seller who reports 

in a manner consistent with the 

procedures set forth in the Policy 

Statement shall not constitute violations 

of this provision. Seller must identify as 

part of its Electric Quarterly Report 

filing requirement in § 35.10b of this 

chapter the publishers of electricity and 

natural gas indices to which it reports 

its transactions. In addition, Seller must 

adhere to any other standards and 

requirements for price reporting as the 

Commission may order. 

* * * * * 

PART 284—CERTAIN SALES AND 

TRANSPORTATION OF NATURAL GAS 

UNDER THE NATURAL GAS POLICY 

ACT OF 1978 AND RELATED 

AUTHORITIES 

■ 3. The authority citation for part 284 

continues to read as follows: 

Authority: 15 U.S.C. 717–717z, 3301–3432; 

42 U.S.C. 7101–7352; 43 U.S.C. 1331–1356. 

■ 4. Revise § 284.288(a) to read as 

follows: 

§ 284.288 Code of conduct for unbundled 

sales service. 

(a) To the extent Seller engages in 

reporting of transactions to publishers of 

electricity or natural gas indices, Seller 

must provide accurate and factual 

information, and not knowingly submit 

false or misleading information or omit 

material information to any such 

publisher, by reporting its transactions 

in a manner consistent with the 

procedures set forth in the Policy 

Statement, issued by the Commission in 

Docket No. PL03–3–000 and any 

clarifications thereto. For a Seller who 

reports in a manner consistent with 

procedures set forth in the Policy 

Statement, there will be a rebuttable 

presumption that information submitted 

to publishers of electricity or natural gas 

indices is accurate, timely, and 

submitted in good faith. Inadvertent 

reporting errors by a Seller who reports 

in a manner consistent with the 

procedures set forth in the Policy 

Statement shall not constitute violations 

of this provision. Seller must notify the 

Commission as part of its FERC Form 

No. 552 annual reporting requirement in 

§ 260.401 of this chapter whether it 

reports its transactions to publishers of 

electricity and natural gas indices. In 

addition, Seller must adhere to any 

other standards and requirements for 

price reporting as the Commission may 

order. 

* * * * * 

■ 5. Revise § 284.403(a) to read as 

follows: 

§ 284.403 Code of conduct for persons 

holding blanket marketing certificates. 

(a) To the extent Seller engages in 

reporting of transactions to publishers of 

electricity or natural gas indices, Seller 

must provide accurate and factual 

information, and not knowingly submit 

false or misleading information or omit 

material information to any such 

publisher, by reporting its transactions 

in a manner consistent with the 

procedures set forth in the Policy 

Statement, issued by the Commission in 

Docket No. PL03–3–000 and any 

clarifications thereto. For a Seller who 

reports in a manner consistent with 

procedures set forth in the Policy 

Statement, there will be a rebuttable 

presumption that information submitted 

to publishers of electricity or natural gas 

indices is accurate, timely, and 

submitted in good faith. Inadvertent 

reporting errors by a Seller who reports 

in a manner consistent with the 

procedures set forth in the Policy 

Statement shall not constitute violations 

of this provision. Seller must notify the 

Commission as part of its FERC Form 

No. 552 annual reporting requirement in 

§ 260.401 of this chapter whether it 

reports its transactions to publishers of 

electricity and natural gas indices. In 

addition, Seller must adhere to any 

other standards and requirements for 

price reporting as the Commission may 

order. 

* * * * * 

[FR Doc. 2020–28386 Filed 3–1–21; 8:45 am] 

BILLING CODE 6717–01–P 


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