142 FERC ¶ 61,181

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Part 366

[Docket No. RM11-12-001; Order No. 771-A]

Availability of E-Tag Information to Commission Staff

(Issued March 8, 2013)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Order on Rehearing and Clarification.

SUMMARY: In this order on rehearing and clarification, the Federal Energy Regulatory 

Commission (the Commission) clarifies that: (1) Balancing Authorities and their 

Authority Services will have until 60 days after publication of this order to implement the 

validation requirements of Order No. 771; (2) validation of e-Tags means that the Sink 

Balancing Authority, through its Authority Service, must reject any e-Tags that do not 

correctly include the Commission in the CC field; (3) the requirement for the 

Commission to be included in the CC field on the e-Tags applies only to e-Tags created 

on or after March 15, 2013; (4) the Commission will deem all e-Tag information made 

available to the Commission pursuant to Order No. 771 as being submitted pursuant to a 

request for privileged and confidential treatment under 18 CFR 388.112; (5) the 

Commission is to be afforded access to the Intra-Balancing Authority e-Tags in the same 

manner as interchange e-Tags; and (6) the requirement on Balancing Authorities to 

ensure Commission access to e-Tags pertains to the Sink Balancing Authority and no 

other Balancing Authorities that may be listed on an e-Tag.

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FOR FURTHER INFORMATION CONTACT:

Maria Vouras (Technical Information)

Office of Enforcement

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

Telephone: (202) 502-8062, E-mail: maria.vouras@ferc.gov

William Sauer (Technical Information) 

Office of Energy Policy and Innovation

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

Telephone: (202) 502-6639, E-mail: william.sauer@ferc.gov

Gary D. Cohen (Legal Information)

Office of the General Counsel

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

Telephone: (202) 502-8321, E-mail: gary.cohen@ferc.gov

SUPPLEMENTARY INFORMATION:

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Docket No. RM11-12-001 iii

142 FERC ¶ 61,181

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Availability of E-Tag Data to Commission Staff Docket No. RM11-12-001

ORDER NO. 771-A

ORDER ON REHEARING AND CLARIFICATION

TABLE OF CONTENTS

I. Overview ................................................................................................................................2.

II. Introduction...........................................................................................................................3.

III. Discussion............................................................................................................................9.

A. Requests for Extensions of Time .....................................................................................9.

B. Requests for Rehearing and Clarification ........................................................................14.

1. Validation of the Commission on E-Tags ....................................................................14.

2. Prospective Effect of Order No. 771 ............................................................................22.

3. Confidentiality of E-Tag Data Provided to Commission .............................................24.

4. Internal E-Tags .............................................................................................................31.

5. Balancing Authorities ...................................................................................................34.

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142 FERC ¶ 61,181

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Jon Wellinghoff, Chairman;

 Philip D. Moeller, John R. Norris,

 Cheryl A. LaFleur, and Tony Clark.

Availability of E-Tag Data to Commission Staff Docket No. RM11-12-001

ORDER NO. 771-A

ORDER ON REHEARING AND CLARIFICATION

(Issued March 8, 2013)

1. On December 20, 2012, the Commission issued Order No. 771, a Final Rule that 

amended the Commission’s regulations to grant the Commission access, on a non-public 

and ongoing basis, to the complete electronic tags (e-Tags) used to schedule the 

transmission of electric power interchange transactions in wholesale markets.1

 Order 

No. 771 requires e-Tag Authors (through their Agent Service) and Balancing Authorities 

(through their Authority Service), beginning on March 15, 2013, to take appropriate steps 

to ensure Commission access to the e-Tags covered by this Final Rule by designating the 

Commission as an addressee on the e-Tags. In response to this rule, requests for 

rehearing and/or clarification were filed by four entities. The National Rural Electric 

Cooperative Association (NRECA) individually filed a request for rehearing and also 

filed, together with Edison Electric Institute (EEI), a joint request for rehearing and 

 1 Availability of E-Tag Information to Commission Staff, Order No. 771, 

77 FR 76367 (Dec. 28, 2012), FERC Stats & Regs ¶ 31,339 (2012).

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clarification that included a motion for an expedited response to its motion for an 

extension of the compliance deadlines prescribed in the rule. Southern Company 

Services, Inc. (Southern) similarly filed a request for rehearing and clarification that 

included a request for expedited consideration of a request for a time extension. In 

addition, Open Access Technology International, Inc. (OATI) filed a request for 

clarification. A motion for leave to answer and answer was filed by PJM 

Interconnection, L.L.C. (PJM) and Southwest Power Pool, Inc. (SPP) (collectively, 

PJM/SPP). In this order, the Commission addresses only those issues that need to be 

answered on an expedited basis to allow entities affected by this rule to understand their 

obligations and comply with the requirement to ensure Commission access to the e-Tags 

covered by the Final Rule in a timely manner. In due course, the Commission will issue 

an additional rehearing order, addressing the remaining issues raised on rehearing and 

clarification. As discussed further below, the Commission also issued a notice on 

February 1, 2013, granting limited time extensions but requiring compliance by 

March 15, 2013 for the bulk of the requirements under the rule.

I. Overview

2. In this order, the Commission clarifies that: (1) Balancing Authorities and their 

Authority Services2

 will have until 60 days after publication of this order to implement 

 2

 An Authority Service is the “focal point for all interactions with an e-Tag and 

maintains the single authoritative ‘copy of record’ for each e-Tag received.” See NAESB 

Electronic Tagging Functional Specifications, Version 1.8.1.1, section 1.4.1.2, at p. 24. 

Every Sink Balancing Authority is responsible for registering an URL of an Authority 

Service. The Authority Service forwards all valid received e-Tag requests to each entity 

(continued...)

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the validation requirements of Order No. 771; (2) validation of e-Tags means that the 

Sink Balancing Authority, through its Authority Service, must reject any e-Tags that do 

not correctly include the Commission in the CC field;3

 (3) the requirement for the 

Commission to be included in the CC field on the e-Tags applies only to e-Tags created 

on or after March 15, 2013; (4) the Commission will deem all e-Tag information made 

available to the Commission pursuant to Order No. 771 as being submitted pursuant to a 

request for privileged and confidential treatment under 18 CFR 388.112; (5) the 

Commission is to be afforded access to the Intra-Balancing Authority e-Tags in the same 

manner as interchange e-Tags; and (6) the requirement on Balancing Authorities to 

ensure Commission access to e-Tags pertains to the Sink Balancing Authority and not 

other Balancing Authorities that may be listed on an e-Tag.

II. Introduction

3. E-Tags, also known as Requests for Interchange (RFI), are used to schedule 

interchange transactions in wholesale markets. Generally, e-Tags document the 

movement of energy across an interchange over prescribed physical paths, for a given 

 

identified in the transaction as having “approval” or “viewing” rights over the request and 

collects approvals/denials. The Authority Service then sends final disposition of the 

request to each entity in the distribution list. See id. Authority Services are currently 

provided by a small number of commercial software vendors.

3

 In previous times, the term “CC” referred to those who would be given a carbon 

copy; the term has been carried over into the electronic age. E-Tag Authors may include 

a CC list (Carbon Copy List) on their e-Tags specifying the entities that will be provided 

with a copy of the e-Tag without being given approval rights. See NAESB Electronic 

Tagging Functional Specifications, Version 1.8.1.1, section 1.4.11, at p. 37.

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duration, and for a given energy profile(s), and include information about those entities 

with financial responsibilities for the receipt and delivery of the energy. As stated in 

Order No. 771, the Commission determined that access to complete e-Tag data4

 will help 

the Commission in its efforts to detect market manipulation and anti-competitive 

behavior, monitor the efficiency of the markets, and better inform Commission policies 

and decision-making.5

4. As the Commission explained in Order No. 771, the Commission needs e-Tag data 

covering all transactions involving interconnected entities listed on the e-Tag because the 

information is necessary to understand the use of the interconnected electricity grid, and 

particularly those transactions occurring at interchanges.6

 The Commission also found in 

Order No. 771 that regular access to e-Tags for power flows across interchanges will 

make it possible for the Commission to identify or analyze various behaviors by market 

participants to determine if they are part of a potentially manipulative scheme(s).7

 As 

 4

 Order No. 771 defined “complete e-Tags” for purposes of this rulemaking 

proceeding as: (1) e-Tags for interchange transactions scheduled to flow into, out of, or 

within the United States’ portion of the Eastern or Western Interconnection, or into the 

Electric Reliability Council of Texas and from the United States’ portion of the Eastern 

or Western Interconnection, or from the Electric Reliability Council of Texas into the 

United States’ portion of the Eastern or Western Interconnection; and (2) information on 

every aspect of each such e-Tag, including all applicable e-Tag IDs, transaction types, 

market segments, physical segments, profile sets, transmission reservations, and energy 

schedules. See Order No. 771, FERC Stats & Regs ¶ 31,339 at n.2.

5

 Order No. 771, FERC Stats & Regs ¶ 31,339 at P 27.

6 Id.

7 Id. P 28.

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demonstrated by recent investigations by the Commission’s Office of Enforcement, for 

example, e-Tag information can enable the Commission to investigate whether entities 

may be engaging in manipulative schemes involving the circular scheduling of imports 

and exports into a market to benefit other positions held by these entities.8

 The 

Commission also noted that e-Tag access will help the Commission to understand, 

identify, and address instances where interchange pricing methodologies or scheduling 

rules result in inefficiencies and increased costs to market participants collectively.9

 The 

Commission also noted that access to e-Tag information will allow the Commission to 

determine whether the requirements of the mandatory business practice standards related 

to e-Tags have been met.10

5. In Order No. 771, the Commission required e-Tag Authors, through their Agent 

Service, and Balancing Authorities, through their Authority Service, to take appropriate 

steps to ensure that the Commission is included as an addressee on all e-Tags for 

interchange transactions scheduled to flow into, out of, or within the United States’ 

portion of the Eastern or Western Interconnection, or into Electric Reliability Council of 

Texas (ERCOT) and from the United States’ portion of the Eastern or Western 

Interconnection; or from ERCOT into the United States’ portion of the Eastern or 

 8 Id. P 28, n.72 (citing Gila River Power, LLC, 141 FERC ¶ 61,136 (2012)).

9 Id. P 29.

10 Id.

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Western Interconnection.11 The Commission required that the e-Tag Authors include the 

Commission on the CC list of entities with view-only rights to the e-Tags described 

above. Further, the Commission required that the Balancing Authorities (located within 

the United States) validate the inclusion of the Commission on the CC list of the e-Tags 

before those e-Tags are electronically delivered to an address specified by the 

Commission.12

6. Order No. 771 also required that Regional Transmission Organizations (RTO), 

Independent System Operators (ISO) and their Market Monitoring Units (MMU) shall be 

afforded access to complete e-Tags, upon request to e-Tag Authors and Authority 

Services, subject to their entering into appropriate confidentiality agreements.

7. As noted above, requests for rehearing and/or clarification of Order No. 771 were 

filed by four entities.13 In addition, PJM/SPP filed a motion for leave to answer and 

answer in response to the requests for rehearing and clarification. Rule 713(d) of the 

Commission’s Rules of Practice and Procedure prohibits an answer to a request for 

rehearing.14 Accordingly, we will reject the answer.

 11 Id. P 1; see also 18 CFR 366.2(d).

12 Id. P 41.

13 See supra P 1.

14 18 CFR 713(d) (2012).

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8. The main concern raised by EEI/NRECA in its joint request for rehearing and 

clarification pertains to the requirement that Sink Balancing Authorities and their 

Authority Services must validate that the Commission is a CC recipient of the e-Tags.15 

NRECA’s individually filed rehearing request questions the Commission’s legal 

authority to require access to e-Tag data. Southern filed a request for rehearing and 

clarification raising a number of issues, including: the responsibilities of Balancing 

Authorities with respect to e-Tag data; maintaining the confidentiality of e-Tag data; the 

applicability of the Final Rule to new e-Tags; and what e-Tag data can be requested by 

RTO/ISO MMUs. OATI16 filed a request for clarification asking three questions: 

(1) whether the requirements in the Final Rule pertain only to Sink Balancing 

Authorities; (2) what e-Tag data can be requested by RTOs, ISOs, and MMUs; and 

(3) what confidentiality restrictions should apply to such requests. As stated above, in 

this order, the Commission will address only those issues that require an expedited 

response from the Commission to allow entities affected by this rule to understand their 

obligation to ensure Commission access to e-Tag data and comply with the rule in a 

timely manner. The Commission will issue an additional rehearing order in due course to 

address remaining issues, including its legal authority to access e-Tags.

 15 EEI/NRECA at 2.

16 OATI states that it provides software solutions in the North American energy 

industry, including e-Tag services (through OATI webTag). OATI states it also provides 

Agent Services and Authority Services to e-Tag Authors and Balancing Authorities, 

respectively. See OATI at 1.

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III. Discussion

A. Requests for Extensions of Time

1. Comments

9. NRECA requests that the Commission issue an interim order on rehearing 

extending Order No. 771’s compliance deadline of March 15, 2013 until 60 days after the 

Commission acts on the merits of NRECA’s request for rehearing. EEI/NRECA also 

filed a motion for expedited extension of the March 15, 2013 compliance deadline, 

asking that the Commission grant the motion by February 15, 2013.17 Specifically, 

EEI/NRECA ask the Commission to extend the deadline for including the Commission in 

the CC field of the requisite e-Tags to 60 days after the Commission responds to the 

EEI/NRECA request for rehearing and clarification and, if the Commission retains the 

validation requirement, the Commission should extend the deadline until 60 days after 

the North American Energy Standards Board’s (NAESB) e-Tag protocols are modified to 

implement the requirement.18 Southern also filed a motion for extension of time, asking 

that the Commission extend the effective date to 60 days after NAESB implements the 

revisions to its protocols to automate the system required to implement the Final Rule.

2. Commission Determination

10. The Commission considers it important to begin obtaining the data on e-Tags as 

soon as possible so that we can begin to analyze the data and enhance our ability to carry 

 17 EEI/NRECA at 3.

18 Id. at 5.

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out our regulatory missions of detecting market manipulation and inefficient market rules 

and taking appropriate action, where needed, to address any such problems. Accordingly, 

the Commission is averse to allowing any unnecessary delays before the requirements of 

Order No. 771 become effective.

11. Nevertheless, when the Commission reviewed the requests for rehearing and for 

clarification, we determined that some of the rehearing requests asked important 

questions that needed explanation before action could be taken to comply with the rule. 

For this reason, the Commission issued a notice, on February 1, 2013, extending the time 

until Balancing Authorities are to be required to validate the inclusion of the Commission 

on e-Tags until 30 days after the issuance of an order, this order, which clarifies exactly 

what is entailed by such validation. To ensure that Balancing Authorities have sufficient 

time to implement this requirement, this order extends the time for Balancing Authorities 

to comply with the validation requirement until 60 days from the date of publication of 

this order in the Federal Register.

12. Given the importance of the objectives served by issuance of Order No. 771, our 

notice of a limited time extension denied all other requested time extensions and affirmed 

the time deadlines prescribed in the Final Rule in all other respects. Therefore, given our 

clarification in this order of the obligations of Sink Balancing Authorities regarding the 

validation of Commission access to e-Tags, Balancing Authorities will have until 60 days 

after publication of this order to implement the validation requirement, as clarified below.

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13. We also note that requests for rehearing and/or clarification do not act as a stay of 

the compliance obligations prescribed in final orders.19 As stated in the February 1, 2013 

notice, full compliance with all other obligations under Order No. 771 is required by 

March 15, 2013.

B. Requests for Rehearing and Clarification

1. Validation of the Commission on E-Tags

a. Comments

14. EEI/NRECA and Southern encourage the Commission to eliminate the validation 

requirement if validation means that the Sink Balancing Authority or its Authority 

Service should reject an e-Tag that does not include the Commission in the CC field.20 

EEI/NRECA and Southern states that if validation means rejecting e-Tags that do not 

include the Commission, then the Commission should direct the industry to adjust the 

NAESB protocols to enable an automated process for validation and careful 

implementation of the requirement.21

15. According to Southern, rejecting e-Tags that do not CC the Commission could 

result in significant commercial and reliability disruptions.22 EEI/NRECA also assert that 

rejecting e-Tags could disrupt necessary power deliveries and implementing the change 

 19 See 18 CFR 713(e) (2012).

20 EEI/NRECA at 4; Southern at 5-6.

21 EEI/NRECA at 2; Southern at 6.

22 Southern at 6.

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via changes to the NAESB e-Tag protocols would avoid or minimize negative 

consequences.23 EEI/NRECA add that if a Balancing Authority or Authority Service 

reject an e-Tag and, thus, the power delivery it covers, the e-Tag Author’s only option 

may be to recreate the e-Tag if time and circumstances permit.24

16. EEI/NRECA add that Sink Balancing Authorities and their Authority Services 

may mistakenly reject an e-Tag and associated delivery in error, when in fact the 

particular e-Tag is not required to be CC’d to the Commission, such as for an internal or 

international transaction.25 EEI/NRECA state that developing and implementing such a 

change to NAESB protocols would take more time than the March 15, 2013 

implementation deadline allows, possibly a year or more, especially if NAESB addresses 

e-Tag issues other than validation.26 Southern states that, at most, the Commission 

should require the Authority Services to add the Commission to the CC field, when 

appropriate, but states that even this effort will require a reasonable amount of time to 

provide for software changes and implementation.27

 23 EEI/NRECA at 2, 4.

24 Id. at 7.

25 Id.

26 Id.

27 Southern at 6.

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b. Commission Determination

17. The Commission has been asked to clarify whether the Commission’s directive in 

Order No. 771 (that Balancing Authorities, through their Authority Services, validate that 

the Commission be given access to e-Tags) requires rejection of e-Tags that fail to 

include the Commission on the CC list as required, or merely requires Balancing 

Authorities to notify the Commission that the e-Tag Author has failed to include the 

Commission on an e-Tag. We also have been asked to abandon or delay this 

requirement, if validation means that tags that fail to include the Commission on the CC 

list are to be rejected.

18. Our requirement in Order No. 771 for validation of e-Tags by Balancing 

Authorities, through their Authority Services, means that Balancing Authorities are to 

reject e-Tags that fail to include the Commission on the CC list and not merely notify the 

Commission that this requirement has not been met; the Commission’s objective is to 

gain access to the e-Tags covered by the Final Rule. Furthermore, we reject the 

suggestion that we abandon this requirement as the Commission is interested in actually 

obtaining access to the information and is not merely interested in compiling a list of 

those that fail to provide the required access to the information. Without a validation 

process in place, the Commission would need to employ additional, less efficient checks 

to ensure that the Commission is obtaining consistent access to all relevant e-Tags.28

 28 Neither the Final Rule nor this order preclude Sink Balancing Authorities and 

their Authority Services from conferring and agreeing on the best way to implement the 

validation requirement within the time limits provided by this order.

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19. We also reject the suggestions by EEI/NRECA and Southern that we should delay 

implementation of the validation requirement until such time as the industry, through 

NAESB, can develop a formalized automated process. While we have no objection to the 

industry formalizing the manner in which validation will be performed by asking NAESB 

to develop a standard covering this, we are unwilling to allow such a process to delay 

Commission access to this important information and, accordingly, decline to defer 

compliance until the development of a formal NAESB business practice standard on this 

topic.29

20. Additionally, as discussed above, the Commission has already provided Balancing 

Authorities (and their Authority Services) with an extension to accommodate their 

devising a system to comply with the requirement that they must validate Commission 

access to e-Tags until 60 days after the publication of this order. By extending the 

validation requirement for Balancing Authorities until 60 days after the publication of 

this order, rather than March 15, 2013 (the implementation date for aspects of Order 

No. 771), we are providing e-Tag Authors and Balancing Authorities a testing period 

before all requirements of Order No. 771 take effect. During this testing period, e-Tag 

Authors will be able to comply with the Final Rule without concern over whether their 

e-Tags will be rejected. Also during this period, the Balancing Authorities (through their 

 29 We note, however, that in its comments filed on March 26, 2012, in response to 

the Notice of Proposed Rulemaking in this proceeding, NAESB stated that there may 

be “fairly simple technical approaches” to meet the Commission’s request to receive all 

e-Tags used to schedule the transmission of power.

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Authority Service) can assess e-Tags submitted by e-Tag Authors after-the-fact and alert 

e-Tag Authors to practices that would result in rejection once the validation mechanisms 

are in place. Accordingly, we believe this staggered approach will allow for the 

development of an automated process and limit any operational or reliability issues 

associated with validation requirements by giving e-Tag Authors and Balancing 

Authorities time to familiarize themselves with the process of providing the Commission 

with access to e-Tags, prior to all of the requirements of Order No. 771 taking effect.

21. In its comments, OATI states that it plans to offer additional automated 

functionality to Balancing Authorities to further enable them to satisfy their obligations 

under the Final Rule.30 OATI further notes that scoping, development, testing, training 

and deployment of automated functionality typically requires at least four weeks, and 

sometimes longer, depending on the particular service.31 Staff’s research indicates that 

the vast majority of Balancing Authorities (i.e., 135 out of 148 total Balancing 

Authorities registered in the OATI webRegistry) rely on OATI to provide their Authority 

Service; nine Balancing Authorities rely on another e-Tag service provider; three do not 

have a registered Authority Service; and one appears to provide its own Authority 

Service.32 Given the extension of time granted with regard to the validation requirement, 

 30 OATI at 2.

31 Id. at 2.

32 These figures are based on staff analysis of the OATI webRegistry, or NAESB 

Electric Industry Registry, published on February 22, 2013.

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we anticipate that Balancing Authorities and their Authority Services will be able to 

validate the Commission’s inclusion on e-Tags once this requirement takes effect.

2. Prospective Effect of Order No. 771

a. Comments

22. EEI/NRECA and Southern seek clarification that the requirement to CC the 

Commission on e-Tags applies only to e-Tags created starting on or after the Order 

No. 771 compliance date, not ones created prior to the compliance date even if covering 

deliveries occurring after that date.33 EEI/NRECA and Southern note that, under the 

current NAESB protocols, an e-Tag cannot be modified after it has been created. 

Therefore, EEI/NRECA argue that modification of e-Tags created prior to the compliance 

date for delivery after the compliance date would entail terminating or recreating the 

e-Tags.34 Southern argues that, if all e-Tags already generated before the effective date 

of the Final Rule must be stopped and regenerated when the new requirements become 

effective, the result will be massive disruption of physical power transfers.35

b. Commission Determination

23. We clarify that the requirement for the Commission to be included in the CC field 

on the e-Tags applies only to e-Tags created on or after the compliance date of Order 

 33 EEI/NRECA at 9; Southern Companies at 3, 7.

34 EEI/NRECA at 9.

35 Southern at 7.

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No. 771 (i.e., March 15, 2013). Accordingly, pre-existing e-Tags do not need to be 

stopped, regenerated, or otherwise modified.

3. Confidentiality of E-Tag Data Provided to Commission

a. Comments

24. EEI/NRECA encourage the Commission to ensure that its recently revised 

regulations for privileged and confidential information at 18 CFR Part 388 will not 

inadvertently create any problems for protecting the confidentiality of e-Tag data.36 

EEI/NRECA argue that, as amended, 18 CFR 388.112(b)(1) generally requires parties 

filing confidential information to identify the filing as containing confidential information 

with certain markings on each page and justification for non-release and other 

requirements that are not workable in the e-Tag context.37

25. Similarly, Southern asks the Commission to clarify that Balancing Authorities are 

not obligated to put a “confidentiality stamp” on e-Tags, as required for documents to 

prevent them from disclosure.38 EEI/NRECA and Southern ask the Commission to 

specify that it will handle all e-Tag information as confidential without the need to 

comply with the requirements of section 388.112 of the Commission’s regulations and 

that the Commission will not release the information to third parties in response to a 

FOIA request without first notifying the e-Tag Author and giving the e-Tag Author 

 36 EEI/NRECA at 5.

37 Id. at 10.

38 Id. at 3, 8.

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adequate time to respond to the request by justifying non-disclosure.39 EEI/NRECA add 

that any information the author identifies as confidential is protected by a confidentiality 

agreement if it is released in response to a FOIA request.

26. Southern asks the Commission to clarify that, once e-Tag information is provided 

to the Commission, it meets the requirements of exemption 4 under FOIA, as it is 

information that would be otherwise privileged or confidential.40 In addition, Southern 

states that Balancing Authorities should not be liable for any disclosure of confidential 

e-Tag information, including inadvertent publication of e-Tag information by a recipient 

of e-Tag data under Order No. 771 and publication of e-Tag data subject to FOIA.41

b. Commission Determination

27. In light of the concerns raised by EEI/NRECA with respect to claims of privileged 

or confidential information, the Commission will handle e-Tag information as privileged 

or confidential under section 388.112 of the Commission’s regulations without the need 

for e-Tag Authors and Balancing Authorities to include certain markings required under 

section 388.112(b)(1) of the Commission’s regulations42 In other words, the Commission 

 39 EEI/NRECA at 10; Southern at 3, 9.

40 Southern at 3, 8.

41 Id. at 9.

42 Section 388.112(b)(1) of the Commission’s regulations, 18 CFR 388.112(b)(1), 

requires, among other matters, certain markings to be placed on “documents” that are 

filed with the Commission. Specifically, section 388.112(b)(1) provides: “A person 

requesting that a document filed with the Commission be treated as privileged or CEII 

must designate the document as privileged or CEII in making an electronic filing or 

(continued...)

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will deem e-Tags made available to the Commission under Order No. 771 as universally 

being provided subject to a request for confidential treatment and e-Tag Authors do not 

need to separately make a request for confidential treatment in each instance for this to 

apply. This does not, however, foreclose the rights of persons to make a request for 

disclosure of this information under the Freedom of Information Act and the provisions 

of 18 CFR 388.108.

28. We decline to specify, as requested by Southern, that e-Tag information provided 

to the Commission meets the requirements of exemption 4 of FOIA because it is 

information that would be otherwise privileged or confidential. Order No. 771 

acknowledged that some of the information contained in the e-Tags is likely to be 

commercially sensitive and that disclosure of such data may result in competitive harm to 

market participants and the market as a whole without reasonable confidentiality 

restrictions.43 To the extent a person files a request to obtain e-Tag data from the 

Commission under the Freedom of Information Act (FOIA), we expect that any 

commercially-sensitive e-Tag data would be protected from disclosure if it satisfies the 

requirements of FOIA’s exemption 4, which protects trade secrets and commercial or 

 

clearly indicate a request for such treatment on a paper filing. The header of the first 

page of the cover sheet or transmittal letter and of the pages or portions of the document 

containing material for which privileged treatment is claimed should be clearly marked in 

bold, capital lettering, indicating that it contains privileged, confidential and/or Critical 

Energy Infrastructure Information, as appropriate, and market DO NOT RELEASE.”

43 Order No. 771, FERC Stats & Regs ¶ 31,339 at P 58.

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financial information that is privileged or confidential.44 Nonetheless, such requests must 

be evaluated on a case-by-case basis and we cannot peremptorily foreclose such requests, 

as requested by Southern.

29. In addition, we find that, consistent with the procedures set forth in 

section 388.112(d) of the Commission’s regulations, the Commission will not release 

e-Tag information to third parties in response to a FOIA request without first notifying 

the e-Tag Author and any relevant Sink Balancing Authority and giving the e-Tag Author 

and any Sink Balancing Authority an opportunity (at least five calendar days) in which to 

comment in writing on the request. If the e-Tag Author objects to the release of e-Tag 

information, and if the Commission or an appropriate Commission official determines 

that such information should be released, notice will be given to the e-Tag Author no less 

than five calendar days before disclosure, pursuant to section 388.112(e) of the 

Commission’s regulations.

30. As to Southern’s request that we determine that Balancing Authorities will not be 

held liable for inadvertent disclosure of confidential e-Tag information, we will address 

this request in our further rehearing order.

4. Internal E-Tags

a. Comments

31. EEI/NRECA ask the Commission to clarify that it is not seeking e-Tags that are 

used within a Balancing Authority for internal purposes, such as where there is only one 

 44 Id.

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“party” to an e-Tag.45 EEI/NRECA state that such e-Tags are often used by companies 

and cooperatives to manage their internal systems within their service territories.46 

b. Commission Determination

32. As noted above, e-Tags are used to schedule interchange transactions in wholesale 

markets, which are defined as “[a]n agreement to transfer energy from a seller to a buyer 

that crosses one or more Balancing Authority Area boundaries.”47 However, in practice, 

as noted by EEI/NRECA, e-Tags can also be used to schedule internal, or Intra-Balancing 

Authority, transactions. Business practice standards related to Intra-Balancing Authority 

e-Tags are the same as the standards that apply to e-Tags that cross Balancing Authority 

Area boundaries.48 As such, we find that treating Intra-Balancing Authority e-Tags in the 

same manner as interchange e-Tags would be consistent with, and least disruptive of, 

established industry practice and fall within the categories of e-Tags that we required to 

be made available to the Commission in Order No. 771. Therefore, we clarify that e-Tag 

Authors, through their Agent Service, must include the Commission on the CC list of 

 45 EEI/NRECA at 8.

46 Id. at 8.

47 See Order No. 771, FERC Stats & Regs ¶ 31,339 at P 3 n.8 (citing NERC’s 

Glossary of Terms Used in Reliability Standards (updated November 15, 2012), available 

at http://www.nerc.com/files/Glossary_of_Terms.pdf).

48 In particular, the NAESB Wholesale Electric Quadrant (WEQ) Business 

Practice Standards (Coordinate Interchange) requirement 004-1.1 provides that “[t]o the 

extent that intra BA transactions are submitted as a RFI, those transactions will be subject 

to all provisions of this Business Practice Standard WEQ-004.”

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entities with view-only rights for all e-Tags covered by the Final Rule, which include 

intra-Balancing Authority e-Tags of the type described by EEI/NRECA.

33. Additionally, requiring that all e-Tags, including Intra-Balancing Authority 

e-Tags, include the Commission on the CC list simplifies compliance with the 

requirements of Order No. 771 for e-Tag Authors and Sink Balancing Authorities. 

Specifically, if the Commission created an exception whereby a limited number of 

Intra-Balancing Authority e-Tags do not include the Commission on the CC list, then 

Balancing Authorities would need to take additional steps to ensure that their validation 

procedures did not incorrectly reject these e-Tags. Simply put, by not allowing this 

exception for Intra-Balancing Authority e-Tags, Balancing Authorities with validation 

responsibilities would simply check only the CC list of an e-Tag to see if the Commission 

is included. If an Intra-Balancing Authority exception were created, Balancing 

Authorities with validation responsibilities would first need to check the market and 

physical segments of an e-Tag to see if they met additional criteria, and then check to see 

if the Commission is included on the CC list. Likewise, e-Tag Authors would have to 

develop additional procedures to ensure an Intra-Balancing Authority exception was 

appropriately implemented.

5. Balancing Authorities

a. Comments

34. OATI states that Order No. 771 creates certain obligations on “Balancing 

Authorities” and notes that multiple Balancing Authorities can be listed on a single 

e-Tag. OATI seeks clarification that the Final Rule refers to the Balancing Authority 

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serving as the Sink Balancing Authority and providing e-Tag Authority Services for the 

particular e-Tag transaction, rather than to other Balancing Authorities that may be listed 

on the e-Tag.49

b. Commission Determination

35. Order No. 771 imposes certain requirements on Balancing Authorities located 

within the United States with respect to ensuring Commission access to e-Tags.50 In 

response to OATI’s question, we clarify that the requirements on Balancing Authorities 

to ensure Commission access to e-Tags relate only to the Sink Balancing Authority on an 

e-Tag and not to other Balancing Authorities that may be included on an e-Tag.51

 49 OATI at 6.

50 See Order No. 771, FERC Stats & Regs ¶ 31,339 at P 39; 18 CFR 366.2(d).

51 See, e.g., NAESB Wholesale Electric Quadrant (WEQ) Business Practice 

Standards (Coordinate Interchange) requirement 004-1 (“All requests to implement 

bilateral Interchange . . . between a Source BA and Sink BA, where one or both BAs are 

located in either the Eastern or Western Interconnection, shall be accomplished by the 

submission of a completed and accurate RFI) to the Sink BA’s registered e-Tag 

Authority Service”) and requirement 004-2 (“Until other means are adopted by NAESB, 

the primary method of submitting the RFI shall be an e-Tag communicated to and 

managed by the Sink BA’s registered e-Tag authority service using protocols compliant 

with the Version 1.8.1 Electronic Tagging Functional Specification.” (Emphasis added.)). 

See NAESB Wholesale Electric Quadrant (WEQ) Business Practice Standards (Version 

003), published July 31, 2012.

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The Commission orders:

The Commission hereby grants rehearing in part, and denies rehearing in part, as 

discussed in the body of the order.

By the Commission.

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.

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Document Content(s)

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