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Federal Energy Regulatory Commission

2012 Biennial Staff Memo Concerning Retrospective Analysis of Existing 

Rules

Docket No. AD12-6-000

October 18, 2012

On November 8, 2011, staff of the Federal Energy Regulatory Commission 

(FERC or Commission) issued in Docket No. AD12-6-000 a Plan for Retrospective 

Analysis of Existing Rules (the Plan).

1

 The Plan outlined additional steps for the future 

to identify regulations that warrant repeal or modification, or strengthening, 

complementing, or modernizing where necessary or appropriate. This Plan is in addition 

to the Commission’s current voluntary review of its regulations.

Consistent with the 10-year review cycle set forth in the Plan, staff identified the 

following Commission regulations as ripe for evaluation in 2012:

Subject Matter 18 CFR 

Part(s) or 

Order No.

Last Revision

Natural Gas 

Pipelines

153, 156, 157, 

284

Order No. 

636-C

1992

Electric Quarterly 

Report (FERC516)

35.10b

Order No. 

2001

2002

As described in this memo, Commission staff identifies certain minor revisions to 

the Commission’s Natural Gas Pipeline regulations that may be appropriate to remove 

reporting requirements that may no longer serve their intended purpose. Consistent with 

the Plan, this memo will be made available for public comment, providing an opportunity 

for public input as to which of the regulations that are ripe for evaluation warrant a 

formal public review. Such public input will be due 30 days after the memo is made 

available for public comment. This input, in addition to staff’s recommendation, will 

inform the Commission’s decision as to which regulations, if any, will be the subject of a 

formal public review as part of the 2012 retrospective analysis conducted pursuant to the 

Plan.

The Plan also emphasized that in addition to this retrospective analysis initiative, 

the Commission would continue its practice of voluntarily and routinely reviewing its 

 

1 See Retrospective Review under Executive Order 13579 - Plan for Retrospective 

Analysis of Existing Rules, 76 Fed. Reg. 70,913 (Nov. 16, 2011), FERC Stats. & Regs. ¶ 

29,663 (2011), available at http://www.ferc.gov/legal/maj-ord-reg/retrospectiveanalysis.asp.
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regulations to ensure that they achieve their intended purpose and do not impose undue 

burdens on regulated entities or unnecessary costs on those entities or their customers.

To that end, in addition to those regulations ripe for review pursuant to the 10-year 

review cycle set forth in the Plan, the Commission is considering other areas in which the 

regulatory burden should be reduced. For example, the Commission has considered areas 

in which the regulatory burden on natural gas pipelines under the Natural Gas Act 

(NGA), section 311 pipelines under the Natural Gas Policy Act (NGPA) and oil pipelines 

could be reduced. Upon review, the Commission has issued three proposals to reduce 

regulatory burden. One proposal would eliminate approximately 145 annual filings made 

by NGA pipelines as a result of a change in the annual charge assessment unit 

surcharge.2 Another would streamline the processing of tariff filings by intrastate 

pipelines performing interstate service under section 311 of the NGPA and Hinshaw 

pipelines, with no adverse impacts to natural gas pipeline shippers or the public.3 The 

third would reduce burdens on oil pipelines by eliminating unnecessary filings, updating 

requirements for service, and updating requirements for posting tariff information.4 The 

Commission is soliciting comments on those proposals.

Background

On July 11, 2011, the President issued Executive Order 13579, requesting 

independent regulatory agencies follow the key principles of Executive Order 13563. 

These principles were designed to promote public participation, improve integration and 

innovation, promote flexibility and freedom of choice, and ensure scientific integrity 

during the rulemaking process in order to create a regulatory system that protects public 

health, welfare, safety, and the environment while promoting economic growth, 

innovation, competitiveness, and job creation. 

As part of this effort, Executive Order 13579 requests that independent agencies 

issue public plans for periodic retrospective analysis of their existing “significant 

regulations.” Retrospective analysis should identify “significant regulations” that may be 

outmoded, ineffective, insufficient, or excessively burdensome, and to modify, 

streamline, expand, or repeal them in order to achieve the agency’s regulatory objective. 

The Plan was made available to the public on November 8, 2011, in accordance with 

Executive Order 13579.

 

2 Annual Charge Filing Procedures for Natural Gas Pipelines, Docket No. 

RM12-14-000.

3 Revisions to Procedural Regulations Governing Transportation by Intrastate 

Pipelines, Docket No. RM12-17-000.

4 Filing, Indexing and Service Requirements for Oil Pipelines, Docket No. RM12-

15-000.
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The Plan summarized the Commission’s continuing efforts to identify regulations 

that warrant repeal or modification, or strengthening, complementing, or modernizing 

where necessary or appropriate. The Commission voluntarily and routinely, albeit 

informally, reviews its regulations to ensure that they achieve their intended purpose and 

do not impose undue burdens on regulated entities or unnecessary costs on those entities 

or their customers. In addition, the Commission considers the spirit of the above-noted

Executive Orders when evaluating possible new regulations.

The Plan also outlined additional steps for the future to identify regulations that 

warrant repeal or modification, or strengthening, complementing, or modernizing where 

necessary or appropriate. The Plan stated that it is in addition to the Commission’s 

current voluntary review of its regulations.

Executive Order 13579 asks independent agencies to review “significant 

regulations.” Executive Order 13579 does not define what should be considered 

“significant regulations.” In developing the Plan, staff considered the definition of a 

“significant regulatory action” provided in Executive Order 12866.5

 Staff also 

considered the Office of Management and Budget’s (OMB) definition of “major rules” in 

section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996.6 In 

particular, section 3(a) of the Regulatory Flexibility Act provides for a 10-year review of 

rules that have a “significant economic impact upon a substantial number of small 

entities.”7 However, the Commission, in consultation with OMB, has determined that a 

very limited number of the Commission’s rules are “major rules” because they do not 

 

5 Section 3(f) of Executive Order 12866 defines “significant regulatory action” to 

be one that is likely to result in a rule that may:

(1) have an annual effect on the economy of $100 million or more or adversely 

affect in a material way the economy, a sector of the economy, productivity, competition, 

jobs, the environment, public health or safety, or State, local, or tribal governments or 

communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or 

planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan 

programs or the rights and obligations of recipients thereof; or 

(4) raise novel, legal or policy issues arising out of legal mandates, the President’s 

priorities, or the principles set forth in this Executive Order.

6 5 U.S.C. § 804(2) (2006).

7 Id. § 610.
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have a “significant economic impact upon a substantial number of small entities.”8

FERC’s rules, likewise, are typically not considered a “significant regulatory action.”

Because the Commission has relatively few “major rules” or “significant

regulatory actions”, the Plan established a process for reviewing both those Commission 

actions and other Commission rules that nonetheless would be considered of particular 

importance to the industry regulated by the Commission and the public. The Plan

requires staff to prepare a biennial memo identifying such regulations that are ripe for 

evaluation based on a 10-year review cycle. As described in the Plan, before staff 

identifies candidate regulations to review, it will consider a number of factors, including 

measures to effectively carry out the Commission’s statutory responsibilities; staff 

resources; market dynamics; the effect of regulations on small businesses; comments 

from other agencies, stakeholders, and regulated entities; stakeholder actions; 

government actions; technological developments; and the public interest.

The Plan also stated that staff will make its memo available for public comment,

providing an opportunity for public input as to which of the regulations that are ripe for 

evaluation warrant a formal public review. This input, in addition to staff’s 

recommendation, will inform the Commission’s decision as to which regulations, if any,

will be the subject of a formal public review. The Plan stated that this public review 

could be initiated by a Notice of Inquiry seeking public comment on whether the

regulations continue to meet their original objectives or by a proposal of specific changes 

to the regulations.

In addition, the Plan states that members of the public and industry participants 

always may suggest the need for revisions in existing regulations, even outside of 

existing proceedings. The Commission seriously considers such input. Input from the 

public and industry participants is often part of the Commission’s determination to 

reevaluate existing policy and rules.

Potential Regulations for Formal Review

Staff has identified the following regulations for potential inclusion in the 2012

retrospective analysis based on the last revision date and the process set forth in the Plan 

to review all regulations within a 10-year cycle:

Subject Matter 18 CFR 

Part(s) or 

Order No.

Last Revision

 

8 The following rules have been considered “major rules”: Order Nos. 888 and 

889 (considered together) adopting a pro forma open access transmission tariff (OATT) 

and a related open access same-time information system (OASIS), Order No. 693 

approving the first batch of Reliability Standards, and Order No. 706 approving the first 

batch of cyber security standards. In addition, the Smart Grid Policy Statement was 

considered a major rule by OMB.
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Natural Gas 

Pipelines

153, 156, 157, 

284

Order No. 

636-C

1992

Electric Quarterly 

Report (FERC516)

35.10b

Order No. 

2001

2002

Natural Gas Pipelines, 18 C.F.R. Parts 153, 156, 157, and 284

Part 153, which covers the siting, construction, and operation of facilities used to 

import or export natural gas, was revised9 in response to the Energy Policy Act of 200510

amendment of NGA section 3. Staff finds no cause to recommend revisions.

Part 156 describes the procedure to apply for an order under section 7(a) of the 

NGA to direct a natural gas company to extend or improve its transportation facilities. 

Staff finds no cause to recommend revisions.

Part 157 covers the procedure to apply for certificate authorization under NGA 

section 7. Staff identifies the following provisions in Part 157 that may be ineffective, 

outmoded, or overly burdensome and, therefore, may warrant review:

Section 157.14 specifies the exhibits to be included with a section 7 application. 

Staff proposes that sections 157.14(a)(10) and (11), Exhibits H and I, describing gas 

supply and market data, be modified or removed. While the Commission previously 

relied on such data to assess the viability of a proposed project, it no longer does. Instead 

it has established a threshold requirement of no subsidization of a project by existing 

customers, followed by a balancing of benefits against impacts on identified interest. 

Thus, the requirement that applicants submit much of the data specified in the regulations 

may be outmoded.

Section 157.216(a)(1)(i) concludes with “or” – this is a typographical error: “or” 

should be removed and replaced with “and.”

Section 284.12 establishes standards for interstate natural gas pipeline business 

practices and electronic communications. As part of an ongoing effort in Docket No. 

RM96-1, the Commission amends this section periodically to incorporate by reference 

the most recent version of the standards adopted by the Wholesale Gas Quadrant of the 

North American Energy Standards Board (NAESB). Section 284.12 was amended in 

 

9 Regulations Implementing Energy Policy Act of 2005; Pre-Filing Procedures for 

Review of LNG Terminals and Other Natural Gas Facilities, Order No. 665, 70 Fed. Reg.

60,426, 60,440 (Oct. 18, 2005).

10 Pub. L. No. 109-58, 119 Stat. 594 (2005).
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March 201011 to incorporate by reference Version 1.9 of NAESB’s business practice 

standards for gas pipelines, which upgraded practices to increase the efficiency of the 

pipeline grid and make pipelines’ electronic communications more secure. In a Final 

Rule issued on July 19, 2012,

12 the Commission incorporated by reference Version 2.0 of 

NAESB’s standards.

Earlier this year, the Commission modified sections 284.13(e) and 284.126(c) to 

eliminate the semi-annual reporting requirements for interstate and intrastate pipeline 

storage providers. Similar information can be obtained from other sources, such as the 

daily website postings required by section 284.14(a) and reports required by section 

284.126(b). 

Electric Quarterly Reports, 18 C.F.R. § 35.10b

Staff recommends no additional changes to the Commission’s regulations under 

18 C.F.R. § 35.10b, regarding the Electric Quarterly Report (EQR). In evaluating 

whether these regulations warrant a formal public review as part of the 2012 retrospective 

analysis, staff looked at: (1) evaluations of EQR regulations since Order No. 2001;

13 and 

(2) whether those evaluations may have addressed the Plan’s requirements to identify 

regulations that may be “ineffective, outmoded, or overly burdensome”.14

Staff’s view is that, with respect to the Commission’s EQR regulations, the 

actions described below have met the requirement of the Plan to modify, streamline, 

expand, or repeal regulations that may be “ineffective, outmoded, or overly 

burdensome.”15 Staff also notes that in the proceedings described below, the 

Commission has encouraged abundant public comment on its EQR activities. 

The Commission’s regulations at 18 C.F.R. § 35.10b state that the EQR “must be 

prepared in conformance with the Commission’s software and guidance posted and 

 

11 130 FERC ¶ 61,212 (2010).

12 140 FERC ¶ 61,036 (2012).

13 Revised Public Utility Filing Requirements, Order No. 2001, FERC Stats. & 

Regs. ¶ 31,127, reh’g denied, Order No. 2001-A, 100 FERC ¶ 61,074, reh’g denied, 

Order No. 2001-B, 100 FERC ¶ 61,342, order directing filing, Order No. 2001-C, 101 

FERC ¶ 61,314 (2002), order directing filing, Order No. 2001-D, 102 FERC ¶ 61,334, 

order refining filing requirements, Order No. 2001-E, 105 FERC ¶ 61,352 (2003), order 

on clarification, Order No. 2001-F, 106 FERC ¶ 61,060 (2004), order revising filing 

requirements, Order No. 2001-G, 120 FERC ¶ 61,270, order on reh’g and clarification, 

Order No. 2001-H, 121 FERC ¶ 61,289 (2007), order revising filing requirements, Order 

No. 2001-I, FERC Stats. & Regs. ¶ 31,282 (2008).

14 Plan at 13.

15 Id.
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available for downloading from the FERC Web site.” This language was included in the 

regulations to allow the Commission to adapt filing methodologies to meet the changing 

character of the filing community. In Order No. 2001-G, the Commission stated:

In Order No. 2001, the Commission also adopted a new section in its regulations, 

18 CFR § 35.10b, which requires that the EQRs are to be prepared in 

conformance with the Commission’s software and guidance posted and available 

from the Commission website. This obviates the need to revise section 35.10b to 

implement revisions to the software and guidance. Since the issuance of Order No. 

2001, as need has arisen, the Commission has issued orders to resolve questions 

raised by EQR users and has also directed Staff to issue guidance on how to report 

certain transactions.16

Between the issuance of Order No. 2001 in April 2002 and the issuance of the 

revised EQR Data Dictionary in Order No. 2001-I in October 2008, the EQR filing 

program has been a model for stakeholder consultation. Over the course of 15 EQR User 

Group Meetings, workshops, and technical conferences during that period, staff listened 

to the concerns of hundreds of data filers, vendors and users to make the filing process 

easier while still ensuring that the collection met the requirements for which it was 

designed. Between 2002 and 2008, the Commission issued seven orders and notices17 for 

several guidance documents refining the Commission's requirements for EQRs

addressing format specifications and instructions for filing EQR data, the use of software 

provided by the Commission, the establishment of an EQR Users Group, guidance on 

refiling, filing of physical versus financial transactions, and standardization of formats 

and names. In March 2004, the Commission directed staff to e-mail to all EQR filers any 

future changes to the list of allowable entries for restricted fields in the EQR, and to post 

these changes on the EQR page of the Commission’s web site.18 In 2007, the 

Commission adopted an EQR Data Dictionary, which provides in one document the 

definitions of certain terms and values used in filing EQR data. Also in 2007, the 

 

16 Revised Public Utility Filing Requirements for Electric Quarterly Reports, 

Order No. 2001-G, 120 FERC ¶ 61,270 (2007), 72 Fed. Reg 56,735 (Oct. 4, 2007), Order 

on reh’g and clarification, Order No. 2001-H, 121 FERC ¶ 61,289 (2007), Order 

revising filing requirements, Order No. 2001-I, FERC Stats. & Regs. ¶ 31,282 (2008), 

and Notice Providing Guidance on the Filing of Information on Transmission Capacity 

Reassignments in Electric Quarterly Reports,124 FERC ¶ 61,244 (2008).

17 Revised Public Utility Filing Requirements for Electric Quarterly Reports, 

Order No. 2001-D, 102 FERC ¶ 61,334, order refining filing requirements, Order No. 

2001-E, 105 FERC ¶ 61,352 (2003), order on clarification, Order No. 2001-F, 106 FERC 

¶ 61,060 (2004), order revising filing requirements, Order No. 2001-G, 120 FERC ¶ 

61,270, order on reh’g and clarification, Order No. 2001-H, 121 FERC ¶ 61,289 (2007), 

order revising filing requirements, Order No. 2001-I, FERC Stats. & Regs. ¶ 31,282 

(2008)), and Notice Providing Guidance on the Filing of Information on Transmission 

Capacity Reassignments in Electric Quarterly Reports, 124 FERC ¶ 61,244 (2008).

18 http://www.ferc.gov/docs-filing/eqr/com-order/RM01-8-005.pdf
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Commission in Order No. 89019 required transmission capacity reassignment to be 

reported in the EQR. In 2008, the Commission issued guidance on the filing of such 

information in the EQR.20

Moreover, the Plan cited staff’s recent identification of an inefficient requirement 

for companies to correct previously-filed EQRs.

21 If there was an inaccuracy in one or 

more of a company’s previously-filed EQRs, staff had required the company to go back 

and correct all of its previously-filed EQRs affected by the error. Staff determined that 

correcting errors on all affected prior reports is not particularly useful and imposes a 

growing burden on filers that serves little purpose. Staff now directs filers to correct the 

most recent 12 reports (three years of data) with a note placed in the EQR stating that 

other reports may also contain the error. This approach provides as much useful 

information to staff and the public as the previous policy of correcting all affected 

previously-filed EQRs, while being less burdensome to filers. This change did not 

necessitate a change in the Commission’s regulations. 

In addition, the Commission currently has three pending or recently finalized 

generic proceedings that address EQR issues:

1. Electricity Market Transparency Provisions of Section 220 of the Federal 

Power Act Final Rule (Electric Market Transparency Final Rule) (Docket No. RM10-12-

000, September 21, 2012)

In September 2012, the Commission issued a Final Rule, pursuant to section 220 

of the Federal Power Act (FPA), to facilitate price transparency in markets for the sale 

and transmission of electric energy in interstate commerce.22 The Final Rule revises the 

Commission’s regulations by requiring entities that are excluded from the Commission’s 

 

19 Preventing Undue Discrimination and Preference in Transmission Service,

Order No. 890, 72 Fed. Reg. 12266 (Mar. 15, 2007), FERC Stats. & Regs. ¶ 31,241, at P 

817, order on reh'g, Order No. 890-A, 73 Fed. Reg. 2,984 (Jan. 16, 2008), FERC Stats. & 

Regs. ¶ 31,261 (2007), order on reh'g and clarification, Order No. 890-B, 73 Fed. Reg.

39,092 (July 8, 2008), 123 FERC ¶ 61,299 (2008), order on reh’g, Order No. 890-C, 74 

FR 12540 (March 25, 2009), 126 FERC ¶ 61,228 (2009), order on clarification, Order 

No. 890-D, 74 Fed. Reg. 61,511 (Nov. 25, 2009), 129 FERC ¶ 61,126.

20 See, e.g., Revised Public Utility Filing Requirements for Electric Quarterly 

Reports, 124 FERC ¶ 61,244 (2008) (providing guidance on the filing of information on 

transmission capacity reassignments in EQRs); Notice of Electric Quarterly Reports 

Technical Conference, 73 Fed. Reg. 2,477 (Jan. 15, 2008) (announcing a technical 

conference to discuss changes associated with the EQR Data Dictionary).

21 Plan at 4.

22 Electricity Market Transparency Provisions of Section 220 of the Federal 

Power Act, Order No. 768, 140 FERC ¶ 61,232 (2012) (to be published in the Federal 

Register on October 11, 2012).
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jurisdiction under FPA section 20523 and have more than a de minimis market presence to 

file EQRs with the Commission. These entities include such as publicly-owned utilities, 

municipal utilities, public utility districts, rural cooperatives, and federal entities (i.e., 

non-public utilities). The Final Rule also revises the existing EQR filing requirements 

applicable to market participants in the interstate wholesale markets by requiring 

additional information, such as the trade date and type of rate, whether an exchange or 

broker was used for a sales transactions, electronic tag ID data, standardized prices and 

quantities for energy, capacity, and booked out power transactions, and whether sales 

transactions were reported to an index publisher. The Final Rule also eliminates the 

requirements to provide certain data related to time zones and the Data Universal 

Numbering System. This Final Rule builds upon a Notice of Proposed Rulemaking 

issued in April 2011.

24 

2. Revised Public Utility Filing Requirements for Electric Quarterly Reports 

(Docket No. RM01-8-012 March 15, 2012)

The Commission issued a Notice of Proposed Rulemaking that proposing to 

revise the Data Dictionary to add “Simultaneous Exchange” to the list of available 

Product Names in the EQR and to require all EQR filers to use this term, when 

appropriate, in the Contract Data section and the Transaction Data section.25 The 

refinements to the existing EQR requirements proposed in this Notice of Proposed 

Rulemaking build upon prior improvements to EQR reporting requirements and enhance 

the goals of providing greater price transparency, promoting competition, instilling 

confidence in the fairness of the markets, and providing a better means to detect and 

discourage discriminatory and manipulative practices. The Commission is considering 

comments filed in response to the Notice of Proposed Rulemaking.

3. Revisions to Electric Quarterly Report Filing Process (Docket No. RM12-3-

000 June 21, 2012)

In this Notice of Proposed Rulemaking, the Commission proposes to amend 

section 35.10b of its regulations, 18 CFR Part 35, to change the process for filing EQRs. 

Currently, EQRs are filed by downloading EQR software from the Commission’s 

website, installing it on the filer’s Microsoft Windows-based computer, entering the EQR 

data into the software, and then submitting the EQR data to the Commission. The EQR 

software is designed in Microsoft Visual FoxPro. Technological changes and limitations 

 

23 16 U.S.C. § 824d (2006).

24 Electricity Market Transparency Provisions of Section 220 of The Federal 

Power Act, Notice of Proposed Rulemaking, 76 Fed. Reg. 24,188 (Apr. 29, 2011), FERC 

Stats. & Regs. ¶ 32,676 (2011), 136 FERC ¶ 61,053 (2011).

25 Revised Public Utility Filing Requirements for Electric Quarterly Reports, 

Notice of Proposed Rulemaking, 77 Feg Reg 16,494 (Mar. 21, 2012), 138 FERC ¶ 

61,191.
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will render the current filing process outmoded, ineffective, and unsustainable. Microsoft 

has discontinued Visual FoxPro and will not support the software after 2015. Visual 

FoxPro also is constrained by data size limitations that will soon restrict the 

Commission’s ability to add data fields in the EQR. Therefore, the Commission proposes 

to allow an EQR filer to file EQR data directly through the Commission’s website, either 

through a web interface or by submitting an Extensible Mark-Up Language (XML)-

formatted file.26 By proposing a process with two options for filing EQRs, the 

Commission seeks to provide the flexibility needed to accommodate EQR filers’ 

technical preferences. The Commission also convened a staff-led public conference on 

Wednesday, July 11, 2012 to demonstrate the two new options for filing EQRs to 

industry participants and to assist participants in preparing their comments to this Notice

of Proposed Rulemaking. 

 

26 XML is a set of standards for describing and communicating data.