153 FERC ¶ 61,177

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Norman C. Bay, Chairman;

 Cheryl A. LaFleur, Tony Clark,

and Colette D. Honorable.

Availability of E-Tag Information to 

 Commission Staff

Docket No. RM11-12-001

ORDER NO. 771-B

ORDER ON REHEARING AND CLARIFICATION

(Issued November 19, 2015)

TABLE OF CONTENTS

Paragraph Numbers

I. Background ............................................................................................................................2.

A. Order No. 771 and E-Tags...............................................................................................4.

II. Discussion.............................................................................................................................11.

A. Legal Authority to Require E-Tag Access.......................................................................11.

1. Requests for Rehearing and Clarification.....................................................................11.

2. Commission Determination..........................................................................................20.

B. Opportunity to Comment on Proposals Adopted in Final Rule .......................................38.

1. Requests for Rehearing and Clarification.....................................................................38.

2. Commission Determination..........................................................................................39.

C. Responsibilities of Balancing Authorities........................................................................43.

1. Requests for Rehearing and Clarification.....................................................................43.

2. Commission Determination..........................................................................................44.

D. Providing Access to RTOs, ISOs and MMUs..................................................................46.

1. Requests for Rehearing and Clarification.....................................................................46.

2. Commission Determination..........................................................................................51.

E. Clarification of E-Tag Access ..........................................................................................59.

1. Request for Rehearing or Clarification.........................................................................59.

2. Commission Determination..........................................................................................60.
Docket No. RM11-12-001 - 2 -

1. In this order, the Federal Energy Regulatory Commission (Commission) denies 

rehearing of Order No. 7711 with respect to access to e-Tag data for the Commission, and 

for Regional Transmission Organizations (RTOs), Independent System Operators (ISOs),

and Market Monitoring Units (MMUs). This order also clarifies certain issues.

I. Background

2. 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. Order 

No. 771 required 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 

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 Companies) similarly filed a request for rehearing and 

 1 Availability of E-Tag Information to Commission Staff, 77 FR 76367 (Dec. 28, 

2012), FERC Stats. & Regs. ¶ 31,339 (2012) (Order No. 771).
Docket No. RM11-12-001 - 3 -

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).2

3. In Order No. 771-A, issued on March 8, 2013, the Commission addressed the 

issues raised in the requests for rehearing of Order No. 771 that required resolution in 

order for the industry to comply with the prescribed compliance schedule in Order 

No. 771.3

 In this order, the Commission addresses the issues raised on rehearing and 

clarification in this proceeding that were not addressed in Order No. 771-A.

A. Order No. 771 and E-Tags

4. 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 

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. E-Tags contain 

 2 The Commission rejected PJM/SPP’s answer in Order No. 771-A. See 

Availability of E-Tag Information to Commission Staff, 142 FERC ¶ 61,181 at P 7 (2013) 

(Order No. 771-A).

3 We note that, in a notice issued on February 1, 2013, the Commission granted a 

limited time extension to Balancing Authorities related to their validation responsibilities 

under Order No. 771 until Order No. 771-A was issued.
Docket No. RM11-12-001 - 4 -

information about the different types of entities involved in moving power across 

interchanges, including generators, transmission system operators, energy traders, and 

Load Serving Entities. The entities listed on e-Tags may include public utilities as well

as entities covered by section 201(f) of the Federal Power Act (FPA).

4 In Order No. 771, 

the Commission found that access to complete e-Tag data5 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.6

 

Order No. 771 relied on the Commission’s anti-manipulation authority under FPA 

 4 16 U.S.C. § 824(f) (2012). FPA section 201(f) provides:

No provision in this Part shall apply to, or be deemed to include, the 

United States, a State or any political subdivision of a State, an electric 

cooperative that receives financing under the Rural Electrification Act 

of 1936 (7 U.S.C. § 901, et seq.) or that sells less than 4,000,000 megawatt 

hours of electricity per year, or any agency, authority, or instrumentality of 

any one or more of the foregoing, or any corporation which is wholly 

owned, directly or indirectly, by any one or more of the foregoing, or any 

officer, agent, employee of any of the foregoing acting as such in the course 

of his official duty, unless such provision makes specific reference thereto.

5 The Commission 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.

6 Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 27.
Docket No. RM11-12-001 - 5 -

section 222, in conjunction with its investigative authority under FPA section 307(a), to 

gain Commission access to e-Tag information related to wholesale electricity market 

transactions.

5. Order No. 771 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 Western 

Interconnection.7

 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.8

6. Order No. 771 also required that RTOs, ISOs and their MMUs be afforded access 

to complete e-Tags, upon request to e-Tag Authors and Authority Services, subject to 

 7 Id. P 1; see also 18 C.F.R. § 366.2(d).

8 Id. P 41. The validation function was clarified in Order No. 771-A.
Docket No. RM11-12-001 - 6 -

appropriate confidentiality restrictions. On August 26, 2013, the Commission accepted 

PJM’s tariff revisions to codify the authority and obligations of PJM and its MMU with 

respect to obtaining and providing access to complete e-Tags under Order No. 771, 

subject to the Commission’s order addressing the remaining requests for rehearing of 

Order No. 771.9

 Similarly, the RTO now known as the Midcontinent Independent 

System Operator, Inc. (MISO) filed revisions to its tariff to codify the authority and 

obligations of MISO and its MMU under Order No. 771.

10

7. 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.11 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).12 As 

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

 9 See PJM Interconnection, L.L.C., 144 FERC ¶ 61,152 (2013). This order 

addresses the remaining requests for rehearing of Order No. 771.

10 MISO’s tariff filing was approved by delegated letter order in Docket No. 

ER13-2327-000 on October 29, 2013.

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

12 Id. P 28.
Docket No. RM11-12-001 - 7 -

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.13 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.14 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.15

8. Since issuance of Order No. 771, the Commission’s experience with obtaining and 

reviewing e-Tags has shown that this information is helpful in determining whether 

entities are engaged in certain manipulative schemes, such as the circular scheduling of 

imports and exports into a market to benefit other positions held by these entities or the

false designation of transactions to ensure awards of bids at multiple interties. In 

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

also Constellation Energy Commodities Group, Inc., 145 FERC ¶ 61,062 (2013) (where 

the Commission approved a settlement agreement resolving an admitted violation of the 

Commission’s regulation at 18 CFR 35.41(b) and related California Independent System 

Operator Corporation (CAISO) tariff provisions for falsely designating transactions as 

“Wheeling Through” transactions to improperly ensure awards of bids at multiple 

interties).

14 Id. P 29.

15 Id.
Docket No. RM11-12-001 - 8 -

addition, the Commission has used e-Tag data to better understand certain aspects of 

market design and to inform the Commission about various proceedings.

16

9. Requests for rehearing and/or clarification of Order No. 771 were filed by 

four entities.17 On March 8, 2013, the Commission issued an order on rehearing and 

clarification, Order No. 771-A, addressing requests for extensions of time and certain 

other issues raised in the rehearing and clarification requests, and clarified: (1) the 

specifics of the e-Tag validation requirements of Order No. 771; (2) the prospective 

effect of the requirement that the Commission be included in the CC field on e-Tags 

created on or after March 15, 2013; (3) the privileged and confidential treatment to be 

afforded to e-Tag information made available to the Commission under Order No. 771;

(4) that the Commission is to be afforded access to the Intra-Balancing Authority e-Tags 

in the same manner as for interchange e-Tags; and (5) that the requirement that Balancing 

Authorities ensure the Commission access to e-Tags pertains to the Sink Balancing 

Authority and not to other Balancing Authorities that may be listed on the e-Tag.

10. As these issues were already addressed in Order No. 771-A, we will not address 

them again in this order. This order addresses the remaining issues raised on rehearing, 

 16 See, e.g., San Francisco Bay Area Rapid Transit v. Pacific Gas and Electric 

Co., 151 FERC ¶ 61,030 (2015) (complaint proceeding involving e-Tags associated with 

importing power into the CAISO Balancing Authority Area); Public Service Co. of New 

Mexico, 153 FERC ¶ 61,060, at P 65 (2015) (where the Commission used e-Tag data to 

analyze certain aspects of Public Service Company of New Mexico’s application for 

market-based rate authority.)

17 Identified in supra P 2.
Docket No. RM11-12-001 - 9 -

including the Commission’s legal authority to access e-Tag data, the notice and comment 

procedures used in this proceeding, and what confidentiality restrictions should apply to

requests for e-Tag data by RTOs, ISOs and MMUs.

II. Discussion

A. Legal Authority to Require E-Tag Access

1. Requests for Rehearing and Clarification

11. NRECA argues that Order No. 771 reads sections 222 and 307 of the FPA too 

expansively.

18 NRECA argues that, even if FPA sections 222 and 307(a) give the 

Commission the authority to obtain e-Tag data in connection with a Commission 

investigation of a violation of its regulations implementing section 222, Order No. 771 

requires market participants to turn over information to the Commission on an ongoing 

basis without initiating an investigation of a statutory violation.

19 Furthermore, NRECA

argues that, even if FPA sections 222 and 307(a) give the Commission the authority to 

impose this blanket reporting requirement on market participants that are public utilities, 

these provisions do not give the Commission the authority to extend that reporting 

requirement to the entities listed in FPA section 201(f).20

12. NRECA also argues that Order No. 771 erroneously concludes that the 

Commission’s surveillance efforts are encompassed within the Commission’s 

 18 NRECA at 2.

19 Id. at 2.

20 16 U.S.C. § 824(f). NRECA at 2-3.
Docket No. RM11-12-001 - 10 -

investigative authority under FPA section 307 because section 307(a) does not use the 

term “surveillance” or imply a power to conduct permanent surveillance outside of an 

actual investigation.21 NRECA contends that the Commission’s reading of section 307(a) 

reads the word “investigate” out of the statute, contrary to principles of statutory 

construction.22

13. NRECA states that, by ordering access to e-Tag data on an ongoing basis, 

the Commission did not “investigate” a matter as Congress used that term in FPA 

section 307.23 NRECA adds that the dictionary meaning of “investigate” is “[t]o observe 

or inquire into in detail” or “examine systematically”24 or “to observe or study closely” or 

“inquire into systematically,” and “to subject to an official probe.”25 NRECA also states 

that Black’s Law Dictionary defines “investigate” as “To inquire into (a matter) 

systematically” or “make an official inquiry.”26 NRECA argues that Order No. 771 does 

not use the word in this traditional sense because it orders the “blanket release of a broad 

class of information on an ongoing basis for purposes of permanent surveillance of an 

 21 Id. at 9.

22 Id. (citing Duncan v. Walker, 533 U.S. 167 (2001); United States v. Menasche, 

348 U.S. 528 (1955)).

23 Id. at 10.

24 Id. at 9 (citing American Heritage Dictionary of the English Language 920 

(4th ed. 2000)).

25 Id. (citing Webster’s Third New International Dictionary 1189 (1961)).

26 Id. (citing Black’s Law Dictionary 902 (9th ed. 2009)).
Docket No. RM11-12-001 - 11 -

entire industry” rather than conducting a systematic, or detailed inquiry, observation, 

study or examination of a matter, or official probe or inquiry.27

14. NRECA states that Order No. 771’s reading of section 307(a) ignores another 

canon of statutory construction that a particular provision must be read in its context in 

the overall statute.28 NRECA argues that the FPA’s procedural and administrative 

provisions in Part III of the FPA distinguish between investigations by the Commission, 

which are the subject of FPA section 307, and periodic and special reporting, the subject 

of FPA section 304. NRECA states that the structure suggests Congress did not intend 

the grant of investigative authority in section 307 to carry an implied authority to require 

the ongoing reporting of information to the Commission without conducting an 

investigation under section 307 and without complying with the reporting requirements 

of section 304.29

15. NRECA states that FPA section 307(a) only gives the Commission authority to 

investigate a section 201(f) entity if the Commission independently has jurisdiction to act 

– i.e., if the investigation relates to a FPA provision or Commission regulation that 

applies to a section 201(f) entity. NRECA contends that, because the Commission’s antimanipulation rules under FPA section 222 apply to section 201(f) entities, section 307(a) 

 27 Id.at 10.

28 Id. (citing Crandon v. United States, 494 U.S. 152 (1990); Kmart Corp. v. 

Cartier, Inc., 486 U.S. 281 (1988)).

29Id.
Docket No. RM11-12-001 - 12 -

authorizes an investigation “in order to determine whether” a section 201(f) entity 

“has violated or is about to violate” those Commission rules. NRECA states that Order 

No. 771, however, does not initiate or authorize an investigation “in order to determine 

whether” any entity “has violated or is about to violate” those rules; it imposes an 

ongoing reporting requirement and does not provide for determinations of such 

violations. Therefore, concludes NRECA, FPA section 307(a) does not authorize the 

Commission to impose reporting requirements on section 201(f) entities. NRECA states 

that, even if section 307(a) authorizes investigations “in order . . . to aid . . . in obtaining 

information about the sale of electric energy at wholesale in interstate commerce and the 

transmission of electric energy in interstate commerce,” which may justify obtaining 

e-Tag data from public utilities about their sales at wholesale and transmission service, it 

does not give the Commission the authority to gather e-Tag data from section 201(f) 

entities because Part II of the FPA does not give the Commission such general regulatory 

or information-gathering authority as to section 201(f) entities.

16. NRECA adds that Order No. 771’s focus on section 307(a) ignores 

sections 307(b), 307(c) and 307(d), which grant the Commission the power to 

administer oaths, subpoena witnesses, and require the production of records under FPA 

section 307(b), the power to seek the aid of courts to compel testimony or production of 
Docket No. RM11-12-001 - 13 -

documents under section 307(c), and the power to order the taking of testimony by 

deposition under 307(d) in connection with Commission investigations.

30

17. In addition, NRECA argues that the Final Rule’s reading of section 307(a) is 

inconsistent with the Commission’s rules relating to investigations contained in Part 1b of 

its regulations.31 NRECA states that these rules apply to all “investigations conducted by 

the Commission,” including those instituted under FPA section 307(a). NRECA 

contends that these rules provide for “formal” and “preliminary” investigations and that 

the Final Rule does not order an investigation. NRECA takes issue with the Final Rule’s 

statement that the Commission need not follow the procedures set forth in Part 1b of the 

Commission’s regulations because section 307(a) does not prescribe the manner in which 

the Commission must obtain such information.32 NRECA states that this suggests the 

Commission is not bound by its own regulations, but only by statute and that it ignores 

that Part 1b of the Commission’s regulations applies to all investigations conducted by 

the Commission.33

18. NRECA also argues that the precedent cited in Order No. 771 does not support the 

Commission’s reading of its authority under FPA section 307 because those cases did not 

 30 Id. at 10-11.

31 Id. at 11.

32 Id. at 13 (citing Order No. 771, FERC Stats & Regs ¶ 31,339 at P 19).

33Id.
Docket No. RM11-12-001 - 14 -

rely on section 307 as the sole or primary legal authority for imposing an ongoing 

reporting obligation on industry participants and the Commission’s authority in those 

cases was not challenged. Furthermore, NRECA contends that United States v. Morton 

Salt Company34 is not precedent for Order No. 771 because it involved a specific 

investigation by the Federal Trade Commission (FTC), not an agency order requiring 

ongoing reporting by market participants unconnected to any particular investigation.35

19. NRECA also argues that FPA sections 222 and 307(a) do not give the 

Commission authority to require section 201(f) entities to provide information to the 

Commission except in connection with a Commission investigation or enforcement 

proceeding under section 222.36 NRECA states that, under FPA section 201(f), no 

provision in Part II of the FPA applies to FPA section 201(f) without a specific reference 

to a provision and that FPA section 201(b)(2) confirms that section 222 applies to 

section 201(f) entities. NRECA states that FPA section 307, contained in the procedural 

and administrative provisions of Part III, does not specifically refer to section 201(f) 

entities. NRECA states that, while section 307(a) authorizes an investigation by the 

Commission to determine whether a section 201(f) entity has violated or is about to 

 34 338 U.S. 632 (1950).

35 NRECA at 15.

36 Id. at 19.
Docket No. RM11-12-001 - 15 -

violate the Commission’s rules under FPA section 222, section 307(a) does not authorize 

the Commission to gather information from section 201(f) entities on an ongoing basis.

2. Commission Determination

20. We deny rehearing. After reviewing the arguments advanced on rehearing, as well 

as the statutory language of FPA sections 222 and 307(a), we find without merit the 

arguments that the Commission lacked authority to promulgate the regulations that it 

adopted in Order No. 771. We believe that Order No. 771 is based on a reasonable 

interpretation of the statutes.37 The arguments on rehearing on this topic raise two main 

issues. First, they point to one type of investigation (i.e., an investigation initiated under 

18 C.F.R. § 1b) and argue that all Commission investigations must fit this model. 

Second, they assert that the Commission may only collect information concerning public 

utilities and not information about other entities participating in wholesale electric 

markets subject to the Commission’s jurisdiction. For the reasons discussed below, we 

find neither of these arguments persuasive. As to the argument that the Commission may 

not conduct ongoing investigations, this argument ignores the purposes for which 

Congress enacted the Energy Policy Act of 2005 (EPAct 2005) and the tasks that 

Congress set forth for the Commission to accomplish, including the prevention of market 

manipulation in energy markets. To accomplish these tasks, Congress granted the 

Commission greater authority to investigate and prevent market manipulation and to 

 37 Chevron, U.S.A. v. Natural Resources Defense Council Inc., 467 U.S. 837, 

842-45 (1984) (Chevron).
Docket No. RM11-12-001 - 16 -

assess substantial civil fines and criminal penalties, when necessary, to address market 

manipulation.

21. Following the restructuring of the wholesale natural gas and electric power 

industries in the 1990s and 2000s, the Commission’s enforcement mission became much 

more complicated. In particular, the Commission needed to address a new set of 

enforcement challenges, including the emergence of new market participants, such as 

sophisticated energy traders, electronic trading tools and platforms, and new markets 

involving both physical and financial products related to the power and natural gas 

industries. Enron and other companies developed manipulation schemes that took 

advantage of the more limited investigative and penalty authorities that the Commission 

possessed at that time. Partly as a result of these manipulation schemes and the Western 

Energy Crisis of 2000-2001, Congress directed the Commission to take its enforcement 

responsibilities in a “far bolder” direction.38 At a Congressional hearing on the 

Commission’s oversight of Enron, the Chairman of the Senate Governmental Affairs 

Committee stated that: “Members of both parties on the Committee [share the interest] 

 38 Examining Enron: Developments Regarding Electricity Price Manipulation in 

California: Hearing Before the Subcomm. on Consumer Affairs, Foreign Commerce and

Tourism of the S. Comm. on Commerce, Science, and Transportation, 107th Cong. 140 

(2002) (statement of Sen. Wyden to Patrick Wood III, Chairman, Federal Energy 

Regulatory Commission); see also id. at 144 (statement of Sen. Byron Dorgan to Patrick 

Wood III, Chairman, Federal Energy Regulatory Commission, “[B]e a tiger . . .”).
Docket No. RM11-12-001 - 17 -

that FERC learn . . . from the Enron scandal and . . . [be] as aggressive and sophisticated 

as the players out in the deregulated energy market . . . .”39

22. In response to these developments, Congress enacted EPAct 2005, which gave the 

Commission significant new authority to police energy markets and energy market 

manipulation. Congress also enhanced the Commission’s penalty authorities to ensure 

that adequate sanctions could be levied for unlawful conduct. It was in response to 

this Congressional direction that the Commission undertook its new enforcement 

responsibilities and interpreted its anti-manipulation authority under FPA section 222 and 

its investigative authority under FPA section 307(a), as revised by EPAct 2005.

40 

23. We believe that Congress intended to give the Commission more powerful tools to 

proactively investigate and prevent market manipulation by enacting EPAct 2005. At the 

same time that Congress granted the Commission significant anti-manipulation authority, 

it also amended section 307(a) of the FPA to expand the Commission’s investigative 

authority.

41 In particular, Congress authorized the Commission to investigate in order to 

 39 Asleep at the Switch: FERC’s Oversight of the Enron Corporation: Hearing 

Before the S. Comm. On Gov’t Affairs, 107th Cong. 59 (2003) (statement of Joseph 

Lieberman, Chairman, Senate Committee on Governmental Affairs).

40 We also note that the Commission’s authority to issue a rule requiring that it be 

afforded access to e-Tags is also supported by its authority under FPA section 309, which 

gives the Commission authority to perform necessary acts and prescribe such orders, 

rules and regulations as it may find necessary or appropriate to carry out the provisions of 

the Federal Power Act.

41 Section 1284 of EPAct 2005.
Docket No. RM11-12-001 - 18 -

“obtain[] information about the sale of electric energy in interstate commerce and the 

transmission of electric energy in interstate commerce” and to determine whether any 

person, “electric utility, transmitting utility, or other entity” has violated or is about to 

violate any provisions of the FPA, Commission rules, regulations or orders.

42 Thus, 

under FPA section 307(a), the Commission “may investigate any facts, conditions, 

practices, or matters which it may find necessary or proper” in furtherance of the 

following goals: (1) to determine whether any person, electric utility, transmitting utility, 

or other entity has violated or is about to violate any provisions of the FPA or 

Commission rules, regulations or orders; (2) to aid in the enforcement of provisions of 

the FPA or in prescribing rules or regulations; (3) to obtain information to serve as a basis 

for recommending legislation; or (4) to obtain information about the sale and 

transmission of electric energy in interstate commerce. Congress provided these tools so 

that the Commission could more effectively investigate and prevent market manipulation. 

 42 Section 307(a), 16 U.S.C. § 825f (a), as revised by EPAct 2005, provides in 

relevant part:

The Commission may investigate any facts, conditions, practices, or matters which 

it may find necessary or proper in order to determine whether any person, electric 

utility, transmitting utility, or other entity has violated or is about to violate any 

provisions of this chapter or any rule, regulation, or order thereunder, or to aid in 

the enforcement of the provisions of this chapter or in prescribing rules or 

regulations thereunder, or in obtaining information to serve as a basis for 

recommending further legislation concerning the matters to which this chapter

relates, or in obtaining information about the sale of electric energy in interstate 

commerce and the transmission of electric energy in interstate commerce.
Docket No. RM11-12-001 - 19 -

The broad language in the statute clearly reflects a Congressional directive to be 

proactive in understanding the markets and deterring manipulation.

24. As explained in Order No. 771, e-Tag data, which is used to schedule the 

transmission of electric power interchange transactions in wholesale markets, provides

information about the sale and transmission of electric energy in interstate commerce 

covered by FPA section 307(a).43 E-Tag data falls squarely within the scope of 

information about electric sales and transmission described in section 307(a) that the 

Commission is authorized to obtain. In addition, as explained in Order No. 771, e-Tag 

data will help the Commission ascertain whether “any person, electric utility, transmitting 

utility, or other entity has violated or is about to violate” the FPA or any Commission 

rule, regulation or order.44 In so doing, the Commission will also further the goal in 

section 307(a) of conducting investigations to assess whether the Commission needs to 

take further actions to enforce provisions of the FPA, particularly the anti-manipulation 

rule in FPA section 222.

25. Regular access to e-Tags for power flows across interchanges has made it possible 

for the Commission to identify and analyze various behaviors by market participants to 

determine if they are part of a potentially manipulative scheme.45 For example, e-Tag 

 43 Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 16.

44 Id. P 16.

45 Id. P 28.
Docket No. RM11-12-001 - 20 -

information has enabled 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 or whether entities are falsely 

designating transactions to ensure awards of bids at multiple interties, as demonstrated by 

investigations by the Commission’s Office of Enforcement.46 Without access to e-Tags, 

the Commission’s ability to identify such manipulative schemes would be hampered. In 

short, without the ability to obtain e-Tag data, the Commission would lack the 

information necessary to carry out its statutory responsibility under FPA section 222 to 

prevent energy market manipulation.

26. The Commission concluded in Order No. 771 that its “surveillance efforts 

are encompassed within its broad investigative authority as they are precisely what 

section 307 is designed to permit- i.e., ‘to determine whether any person [or entity] . . . 

has violated or is about to violate any provisions of the [FPA] . . . or in obtaining 

information about the sale of electric energy at wholesale in interstate commerce and 

the transmission of electric energy in interstate commerce.’” 47 NRECA argues that 

section 307(a) does not specifically use the word “surveillance” and that section 307(a) 

does not imply a power to conduct ongoing market surveillance “in lieu of an actual 

 46 See id. P 28 (citing Gila River Power, LLC, 141 FERC ¶ 61,136 (2012); see also

Constellation Energy Commodities Group, Inc., 145 FERC ¶ 61,062 (2013)).

47 Id. P 16.
Docket No. RM11-12-001 - 21 -

investigation.”48 In addition, NRECA argues that the use of the term “surveillance” reads 

the word “investigate” out of the statute, thereby violating a cardinal principle of 

statutory construction that a “statute ought, upon the whole, to be so construed that, if it 

can be prevented, no clause, sentence, or word shall be superfluous, void or 

insignificant.”49 We disagree. The Commission’s reading of the word “investigate” as 

encompassing its “surveillance” activities in Order No. 771 was meant to include the 

Commission’s initial close observation or inquiry into behavior by market participants to 

determine whether further investigation is needed. The definition of “investigation” is 

“the act of examining something carefully, especially to discover the truth about it.”50 

Nothing in this definition limits the examination to a specific incident that the agency 

already has learned about from another source. Just as the Commission’s responsibilities 

cover the entire wholesale electric industry on an ongoing basis, so must its examination 

and investigation of market conditions to assure that the energy markets are operating 

properly, and without market manipulation. There is no inconsistency in conducting 

surveillance as part of the fact gathering of an investigation. “Surveillance” consists of

“the act of carefully watching someone or something especially in order to prevent or 

 48 NRECA at 11.

49 Id. at 9 (citing Duncan v. Walker, 533 U.S. 167 (2001); United States v. 

Menasche, 348 U.S. 528 (1955)).

50 Id.
Docket No. RM11-12-001 - 22 -

detect a crime” or a “close watch kept over someone or something (as by a detective).”51 

Surveillance is part and parcel of many investigations. Without access to complete e-Tag

data to help conduct surveillance and properly investigate interchange transactions, the 

Commission will be hampered in carrying out its statutory responsibilities to determine 

whether any person, electric utility, transmitting utility, or other entity has violated or is 

about to violate the anti-manipulation rule in FPA section 222.

27. The Commission’s reading of the term “investigate” in this proceeding to include 

access to the information necessary to conduct an investigation into a particular matter is 

also consistent with the use of the term “investigation” found in other provisions in 

Part III of the FPA. For example, FPA section 311, titled “Investigations Relating to 

Electric Energy,” provides that “[i]n order to secure information necessary or appropriate 

as a basis for recommending legislation, the Commission is authorized and directed to 

conduct investigations” into the generation, transmission, distribution and sale of electric 

energy, regardless of whether it is jurisdictional.52

28. We also believe that the Commission has the authority under FPA sections 222 

and 307(a) to require the market participants listed in FPA section 201(f) to turn over 

information on an ongoing basis. FPA section 222 prohibits energy market manipulation 

by “any entity (including an entity described in section 201(f))” in connection with the 

 51 Merriam-Webster Dictionary available at: http://www.merriam-webster.com.

52 16 U.S.C. § 825j (2012) (emphasis added).
Docket No. RM11-12-001 - 23 -

purchase or sale of electric energy or the purchase or sale of transmission services subject 

to the Commission’s jurisdiction. The application of this provision to “any entity” is 

further evidenced by FPA section 201(b)(2), which explicitly states that certain 

provisions, including section 222, shall apply to entities that fall within the scope of FPA 

section 201(f).53 As explained in Order No. 771, regular access to e-Tags for power 

flows across interchanges makes it possible for the Commission to identify or analyze 

various behaviors by entities to determine if they are part of a potentially manipulative 

scheme(s) in violation of FPA section 222.54 This information is used as part of 

investigations of possible violations of section 222.55 EPAct 2005 also revised the 

first sentence of section 307(a) to authorize the Commission to obtain information about 

wholesale electricity sales and transmission and does not restrict the Commission to 

obtaining such information only in the context of a particular investigation of a statutory 

violation.

29. The Commission also interprets FPA section 307(a) to authorize the Commission 

to obtain information about the sale and transmission of electric energy in interstate 

commerce from both public utilities and entities listed in section 201(f) that will help the 

Commission determine whether there is a possible violation by any person or entity, 

 53 Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 15.

54 Id. P 28.

55 See infra n.45.
Docket No. RM11-12-001 - 24 -

including entities listed in section 201(f). In doing so, the Commission’s interpretation of 

section 307(a) conforms to the “cardinal principle of statutory construction that a statute 

ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, 

or word shall be superfluous, void or insignificant.”56 By contrast, NRECA’s 

interpretation of section 307(a) as limiting the Commission to obtaining information only 

from jurisdictional public utilities ignores or, at best, renders the information collection

clause superfluous because, as NRECA notes, the Commission can already require

jurisdictional public utilities to report e-Tag information under FPA section 304. 

NRECA’s interpretation would require us to conclude that when the statute referred to 

“any person, electric utility, transmitting utility, or other entity,” it really only meant to 

refer to public utilities. We find this interpretation implausible and reject it. Congress 

could have written the statute to only allow the collection of information from public 

utilities, if Congress had so desired. It did not do so.

30. NRECA also argues that FPA section 307, contained in the procedural and 

administrative provisions of Part III, does not specifically refer to section 201(f) entities 

and, therefore, does not apply to them. We disagree. EPAct 2005 expanded the entities 

that the Commission could investigate under section 307(a) from “any person” to include 

any “electric utility,” any “transmitting utility,” or any “other entity.” The FPA defines 

an “electric utility” as “a person or Federal or State agency (including an entity described 

 56 See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001); see also Corley v. U.S., 

556 U.S. 303, 314 (2009).
Docket No. RM11-12-001 - 25 -

in section 201(f)) that sells electric energy.)”57 The FPA defines a “transmitting utility” 

as “an entity (including an entity described in section 201(f)) that owns, operates, or 

controls facilities used for the transmission of electric energy” in interstate commerce or 

for the sale of electric energy at wholesale.58 Although the FPA does not specifically 

define “other entity,” the term clearly reaches beyond electric utilities and transmitting 

utilities. By expanding the scope of entities that may be investigated under FPA section 

307(a) to include section 201(f) entities, EPAct 2005 empowered the Commission to 

investigate section 201(f) entities that are not defined as “person[s]” for purposes of the 

FPA. Consistent with this expansion in the types of entities that the Commission may 

investigate, Congress added the clause at the end of the first sentence in section 307(a) 

enabling the Commission to obtain information about wholesale sales and transmission of 

electric energy that is needed to conduct those investigations. Moreover, as noted above, 

other provisions in Part III of the FPA, particularly section 311, enable the Commission 

to investigate and “secure information” for the purpose of recommending legislation, 

whether or not the entities are otherwise subject to the Commission’s jurisdiction. This 

provision indicates that Congress contemplated that the Commission could obtain 

information from section 201(f) entities in Part III of the FPA.

 57 See FPA section 3(22)(A).

58 See FPA section 3(23).
Docket No. RM11-12-001 - 26 -

31. NRECA also contends that Order No. 771’s reading of section 307(a) ignores the 

canon of statutory construction that a particular provision must be read in its context in 

the overall statute59 because the FPA’s procedural and administrative provisions in Part 

III of the statute distinguish between investigations by the Commission under section 307 

and periodic and special reporting under section 304.60 NRECA contends this structure 

indicates that Congress did not intend the grant of investigative authority to carry with it 

an implied authority to require the ongoing reporting of information to the Commission 

without conducting an investigation under section 307 and without complying with the 

reporting requirements of section 304. As discussed above, the Commission’s 

interpretation of section 307(a) requires e-Tag data from public utilities as well as entities 

listed in section 201(f) within the context of the Commission’s broad investigative 

authority under that provision to enable it to investigate to determine if there are possible 

violations of section 222 by public utilities or section 201(f) entities. The Commission’s 

ability to require special or periodic reporting of e-Tag data from public utilities under 

section 304 is separate and distinct from the Commission’s authority under section 307. 

Furthermore, if the Commission were to obtain necessary e-Tag data in a piecemeal 

 59 NRECA at 10 (citing Crandon v. United States, 494 U.S. 152, 158 (1990), 

Kmart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)).

60 FPA section 304(a) requires every licensee or public utility to file with the 

Commission annual or other periodic or special reports as the Commission may prescribe 

as necessary or appropriate to assist the Commission in the proper administration of the 

FPA. 16 U.S.C. § 304.
Docket No. RM11-12-001 - 27 -

manner through periodic, ad hoc reports, the Commission would not be able to carry out 

its statutory obligations under FPA section 222 effectively. E-Tag data cannot be easily 

used, if at all, to investigate instances of market manipulation when the data can only be 

accessed in a truncated or incomplete form from a subset of market participants. 

Moreover, the ongoing, automated data delivery process currently required under Order 

No. 771 reduces administrative burdens on market participants when compared with the 

possible use of periodic, ad hoc reports or data requests for e-Tag data.

32. We also reject NRECA’s claim that Order No. 771’s focus on section 307(a) 

to allow the Commission to obtain information ignores or is inconsistent with

other provisions in that section, specifically sections 307(b), 307(c) and 307(d). 

Sections 307(b) through 307(d) set forth processes that the Commission may employ 

when it uses its investigative authority under section 307(a). These processes enable the 

Commission to, among other things, administer oaths, subpoena witnesses, seek the 

aid of courts to require the attendance and testimony of witnesses, and order the taking 

of witness testimony by deposition. As noted in Order No. 771, although FPA 

sections 307(b) through 307(d) enable the Commission to use subpoenas or other 

processes when necessary in connection with an investigation, it does not follow that all 

Commission investigations initiated under section 307(a) are limited to particular matters 

and cannot be used to collect information more broadly.61 This broader interpretation of 

 61 Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 17.
Docket No. RM11-12-001 - 28 -

the Commission’s investigative authority under section 307 is evidenced by the 

wording in FPA sections 307(b), 307(c) and 307(d) themselves. These provisions 

do not limit the availability of processes to particularized investigations initiated under 

section 307(a), as suggested by NRECA. Rather, these provisions refer more generally 

to the Commission’s ability to employ these processes in connection with either an 

“investigation” or a “proceeding” under the FPA.62

33. NRECA also argues that Part 1b of the Commission’s regulations63 applies to all 

investigations conducted by the Commission, including those instituted under FPA 

section 307(a), and that the Commission did not order an investigation in Order No. 771.

Section 307(a) grants the Commission a general investigative authority, including the 

authority to obtain information about the wholesale sale and transmission of electric 

energy. Section 307(a) does not prescribe the manner in which the Commission must 

obtain such information and the Commission has previously used its investigative 

authority under section 307(a) to collect information64 or initiate inquiries65 without 

 62 See 16 U.S.C. §§ 825f(b), 825f(c) and 825f(d).

63 In particular, section 1b.2 of the Commission’s regulations, 18 C.F.R. 1b.2,

provides that Part 1b “applies to investigations conducted by the Commission but does 

not apply to adjudicative proceedings.”

64 See, e.g., Reporting on North American Energy Standards Board Public Key 

Infrastructure Standards, 140 FERC ¶ 61,066 (2012) (where the Commission instituted a 

section 307(a) proceeding to investigate the facts and practices surrounding the 

implementation of certain NAESB standards by requiring entities, including those not 

otherwise subject to the Commission’s jurisdiction as a public utility, to submit a report).
Docket No. RM11-12-001 - 29 -

initiating enforcement investigations pursuant to Part 1b of the Commission’s 

regulations.

66 NRECA argues that the Commission orders cited in Order No. 77167 as 

cases where the Commission relied on section 307(a) to collect data are not precedent 

because section 307(a) was not the sole or primary legal authority used in those cases and 

the Commission’s authority in those cases was not challenged. However, even though 

section 307(a) was not the only authority relied upon in the cited cases and those cases 

were not challenged in court, they nonetheless serve as precedent where the Commission 

previously relied on its authority under section 307(a) to collect data that was not linked 

to an investigation of a specific entity.

34. The Commission’s authority under FPA section 307(a) to investigate any facts, 

conditions, practices, or matters it may find necessary or proper to determine if any 

 65 See, e.g., Policy Statement on the Commission’s Role Regarding the 

Environmental Protection Agency’s Mercury and Air Toxics Standards, 139 FERC 

¶ 61,131 (2012) (where the Commission stated that it will use its general investigative 

authority under FPA section 307(a) to examine whether there might be a violation 

of a Commission-approved Reliability Standard in connection with advising the 

Environmental Protection Agency on requests by certain generating units to operate in 

noncompliance with EPA’s Mercury and Air Toxics Standards).

66 See Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 19 & n.47 (citing, e.g.,

Enhancement of Electricity Market Surveillance and Analysis through Ongoing 

Electronic Delivery of Data from Regional Transmission Organizations and Independent 

System Operators, Order No. 760, FERC Stats. & Regs. ¶ 31,330 (2012)).

67 See id. P 17, n.47. The Commission also relied on its investigative authority 

under FPA section 307(a) in a recent proposal to collect certain information about 

entities connected to market participants. See Collection of Connected Entity Data from 

Regional Transmission Organizations and Independent System Operators, Notice of 

Proposed Rulemaking, 152 FERC ¶ 61,219 (2015).
Docket No. RM11-12-001 - 30 -

person, electric utility, transmitting utility, or other entity has violated or is about to 

violate provisions of the FPA, taken together with the prohibitions against energy market 

manipulation in FPA section 222, enable the Commission to gather information on 

e-Tags on an ongoing basis. The Commission uses this e-Tag information to investigate 

whether any of the entities identified in FPA section 307(a) are engaged in unlawful 

market manipulation. Therefore, we affirm our finding in Order No. 771 that these 

provisions together authorize the Commission to gather information on e-Tags on an 

ongoing basis to investigate whether any of the entities identified in FPA section 307(a) 

are engaged in unlawful market manipulation and deny NRECA’s request for rehearing 

of this finding. The fact that FPA sections 307(b)-(f) provide authority to use certain 

processes in conducting investigations in no way dictates that section 307(a) only 

authorizes investigations that use those processes.

35. NRECA also takes the position that the Morton Salt case68 is not precedent for the 

Commission’s actions in Order No. 771 because Morton Salt involved a specific 

investigation by the FTC. In Morton Salt, the Supreme Court addressed the FTC’s power 

to require the respondents to file reports showing how they had complied with a cease 

and desist order issued by the FTC and a court decree enforcing that order. In addressing

respondents’ argument that the FTC was “engaged in a mere ‘fishing expedition’ to see if 

 68 See Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 18.
Docket No. RM11-12-001 - 31 -

it can turn up evidence of guilt,”69 since the FTC had not charged them with a violation, 

the Court stated that, even assuming the FTC was engaged in a “fishing expedition”:

The only power that is involved here is the power to get information from 

those who best can give it and who are most interested in not doing so. 

Because judicial power is reluctant if not unable to summon evidence until 

it is shown to be relevant to issues in litigation, it does not follow that an 

administrative agency charged with seeing that the laws are enforced may 

not have and exercise powers of original inquiry. It has a power of 

inquisition, if one chooses to call it that, which is not derived from the 

judicial function. It is more analogous to the Grand Jury, which does not 

depend on a case or controversy for power to get evidence but can 

investigate merely on suspicion that the law is being violated or even 

because it wants assurance that it is not. When investigative and accusatory 

duties are delegated by statute to an administrative body, it, too, may take 

steps to inform itself as to whether there is a probable violation of the law.70

36. Thus, the Court recognized that, when an administrative agency is given 

investigative duties by Congress, the agency has the power to obtain information and 

investigate entities not only within the context of a particular “case or controversy” but 

also to investigate “merely on suspicion that the law is being violated or even because it 

wants assurance that it is not.”71 Moreover, the Court rejected respondents’ arguments in 

Morton Salt that the FTC could better have used its power under section 9 of the Federal 

Trade Commission Act to “send investigators to examine their books, copy documents 

 69 338 U.S. at 641.

70 Id. at 642-43.

71 See Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 18 (citing Morton Salt, 

338 U.S. at 642).
Docket No. RM11-12-001 - 32 -

and issue subpoenas . . .”72 Similar to the FTC, the Commission holds such powers under

section 307 of the FPA.

37. For all these reasons, we deny rehearing. We reject NRECA’s proposed 

interpretation of FPA sections 307 and 222 as inconsistent with both the language and 

purposes of EPAct 2005. If we were to adopt NRECA’s proposed interpretation of our 

statutory authority, we would effectively be nullifying or disregarding the additional 

authorities and responsibilities given to the Commission under EPAct 2005 and returning

the Commission to its pre-EPAct 2005 statutory authority.

B. Opportunity to Comment on Proposals Adopted in Final Rule

1. Requests for Rehearing and Clarification

38. Southern Companies73 state that the Commission’s procedures were flawed in 

issuing Order No. 771 because the Commission “dramatically changed” its original 

proposal from the NOPR74 and adopted an alternate proposal without providing a 

meaningful opportunity to comment on the rule, especially the burden estimates, before 

 72 338 U.S. at 648.

73 Southern Companies consist of Southern Company Services, Inc. acting as 

agent for Alabama Power Company, Georgia Power Company, Gulf Power Company, 

Mississippi Power Company, and Southern Power Company.

74 Availability of E-Tag Information to Commission Staff, Notice of Proposed 

Rulemaking, FERC Stats. & Regs. ¶ 32,675 (2011) (E-Tag NOPR).
Docket No. RM11-12-001 - 33 -

its issuance.75 Southern Companies argue that, while the “final rule did not amount to a 

complete turnaround from the [proposed rule],” the D.C. Circuit Court has held that “the 

[Administrative Procedure Act (APA)] simply requires more.”76 Southern Companies 

state that, by not providing a burden analysis of the new proposal in the NOPR, interested 

parties were not afforded the level of opportunity to comment required by the APA.77

Southern Companies argue that parties did not have an opportunity to comment on the 

burden estimates adopted in Order No. 771 and, therefore, the Final Rule cannot be 

considered a “logical outgrowth” of the NOPR.78 Southern Companies state that the 

burden analysis in the NOPR assumed that only the North American Electric Reliability 

Corporation (NERC) would be required to perform any tasks and such tasks were 

thought to only require seven hours a year of effort by NERC staff (at an estimated 

cost of $820 per year).79 Southern Companies contend that the burden analysis in 

 75 Southern Companies at 1-2 (citing Int’l Union, United Mine Workers of Am. v. 

Mine Safety and Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005); Northeast Md. 

Waste Disposal Auth. v. EPA, 358 F.3d 936, 951-52 (D.C. Cir. 2004)).

76 Id. at 4 (citing Ass’n of Private Sector Colleges and Univs. v. Duncan, 681 F.3d 

427, 462 (D.C. Cir. 2012) (quoting CSX Transp., Inc. v. Surface Transp. Bd., 584 F.3d 

1076 at 1081-82 (D.C. Cir. 2009)).

77Id.

78 Id. (citing Northeast Md. Waste Disposal Auth. v. EPA, 358 F.3d 936, 951-52 

(D.C. Cir. 2004)).

79 Id. at 5 (citing E-Tag NOPR, FERC Stats. & Regs. ¶ 32,675 at P 20).
Docket No. RM11-12-001 - 34 -

Order No. 771 assumes 1,703 respondents at an estimated cost of $498,000 per year.80 

Southern Companies also claim that Order No. 771’s burden estimates are based on the 

premise that e-Tag Authors and Balancing Authorities will use “existing, largely 

automated procedures,” which Southern Companies contend is not the case.81 Southern 

Companies state that, if an updated burden analysis had been presented for comment, the 

industry could have presented information regarding the burdens presented by the 

requirements ultimately adopted and potential ways to reduce such burdens.82

2. Commission Determination

39. We deny rehearing and affirm that this proceeding was conducted in the manner 

prescribed in both the APA and the Paperwork Reduction Act of 1995 (Paperwork

Reduction Act). The Commission’s determination in Order No. 771 that the Final Rule’s 

approach for implementing the E-Tag NOPR’s objective of allowing Commission access 

to e-Tags satisfies the notice requirement under the APA that a meaningful opportunity to 

comment be provided because the Final Rule’s approach is a “logical outgrowth” of the 

proposed approach in the E-Tag NOPR.

83 The APA requires an agency to publish “either 

the terms or substance of the proposed rule or a description of the subjects and issues 

 80 Id. (citing Order No. 771, FERC Stats & Regs ¶ 31,339 at P 65).

81 Id.

82 Id.

83 Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 32.
Docket No. RM11-12-001 - 35 -

involved”84 but does not specify the level of detail that must be included in a Notice of 

Proposed Rulemaking or supplement thereto.85 The D.C. Circuit has applied a “logical 

outgrowth” standard, which allows “incremental changes [from an original proposal] . . . 

so long as the final rule is a ‘logical outgrowth’ of the proposals highlighted and 

discussed during the notice and comment period.”86 The D.C. Circuit has explained that 

the standard for a “logical outgrowth” is whether the interested party, “ex ante, should 

have anticipated that such a requirement might be imposed.”87 An agency can make even 

substantial changes from the original proposal,88 but it should provide enough detail that 

affected parties can anticipate the range of possible proposed methods, and ultimately 

 84 5 U.S.C. 553(b)(3); see also Small Refiner Lead Phase-Down Task Force v. 

EPA, 705 F.2d 506, 519 (D.C. Cir. 1983) (Small Refiner).

85 Small Refiner, 705 F.2d at 519, 549; Nat’l Mining Ass’n v. Mine Safety and 

Health Admin., 116 F.3d 520, 531 (D.C. Cir. 1997) (noting that “[o]ur cases offer no 

precise definition of what counts as a ‘logical outgrowth’”).

86 Sierra Club v. Costle, 657 F.2d 298, 352 (D.C. Cir. 1981).

87 Small Refiner, 705 F.2d at 549; see also Council Tree Communications, Inc. 

v. FCC, 619 F.3d 235, 249 (3d Cir. 2010) (the “logical growth” doctrine asks if the 

“substance of an agency’s rule strays too far from the description contained in the initial 

notice....”).

88 Natural Resources Defense Council, Inc. v. Thomas, 838 F.2d 1224 (D.C. 

Cir. 1988).
Docket No. RM11-12-001 - 36 -

final rules, so that one is “aware of the information the agency decides to rely on in 

taking agency action.”89

40. In the E-Tag NOPR, the Commission proposed to require the NERC to make 

complete e-Tag data available to Commission staff. Comments filed in response to the 

E-Tag NOPR suggested an alternative means for the Commission to obtain the exact 

same e-Tag information proposed to be collected in the E-Tag NOPR, rather than 

obtaining access through NERC.90 On February 23, 2012, the Commission issued a 

notice in this proceeding providing interested parties the opportunity to file reply 

comments on the E-Tag NOPR, particularly with respect to a proposal that would require 

entities that create e-Tags or distribute them for approval to provide the Commission with 

viewing rights to the e-Tags.91 In response to comments received in response to the 

E-Tag NOPR and the February 23, 2012 notice seeking reply comments, Order No. 771 

modified the original NOPR proposal to require the e-Tag Authors that create e-Tags and

the Balancing Authorities that distribute the e-Tags for approval to provide the 

Commission with access to e-Tags, rather than NERC. The E-Tag NOPR and 

supplemental notice seeking reply comments issued in this proceeding following the 

 89 Nat’l Asphalt Pavement Ass’n v. Train, 539 F.2d 775, 779 n.2 (D.C. Cir. 1976), 

quoted in Appalachian Power Co. v. EPA, 579 F.2d 846, 852 n.12 (4th Cir. 1978).

90 See Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 32 (citing Market 

Monitors’ comments at 10).

91 See id.
Docket No. RM11-12-001 - 37 -

issuance of the E-Tag NOPR provided interested parties with sufficient detail about the 

alternative proposals under consideration before issuance of the Final Rule and allowed 

interested parties sufficient notice and opportunity to comment on these proposals in 

accordance with the APA. The supplemental notice and the opportunity to file reply 

comments allowed commenters a full opportunity to respond to NERC’s comments that 

they were not the proper entity to provide the Commission with access to e-Tag 

information. Any commenter that wished to dispute the burden estimate could have 

brought the matter to the Commission’s attention in reply comments.

41. Southern Companies also contend that the burden estimates provided in Order 

No. 771 do not comply with the notice and comment requirements of the APA because 

they differ significantly from the burden estimates included in the E-Tag NOPR. At the 

outset, we note that the burden estimates in the E-Tag NOPR and Order No. 771 must be 

provided as part of the information collection statements required by the Paperwork

Reduction Act. The Paperwork Reduction Act provides that an agency may not conduct 

or sponsor the collection of information unless the agency has published an estimate of 

the burden that shall result from the information collection in advance of adopting or 

revising such collection.

92 Agency rules that propose to require information collection 

are subject to review and approval by the Office of Management and Budget (OMB).

93 

 92 44 U.S.C. § 3507(a)(D)(v).

93 5 CFR 1320.11(h); 5 C.F.R. § 1320.6.
Docket No. RM11-12-001 - 38 -

In accordance with the requirements of the Paperwork Reduction Act, the E-Tag NOPR 

and Order No. 771 set forth the proposed information collection requirements and 

associated burden estimates being submitted to OMB for its review and approval.94

42. The E-Tag NOPR and Order No. 771 also notified interested parties that they 

could submit comments concerning the collection of information and associated burden 

estimates to OMB and provided the relevant OMB contact information. The Commission 

acknowledged that the burden estimates in the Final Rule were modified from the burden 

estimates in the E-Tag NOPR, to reflect that e-Tag Authors and Balancing Authorities, 

rather than NERC, will provide Commission access to e-Tags.95 No comment was filed 

with OMB or the Commission in response to the modified burden estimate in Order 

No. 771.96 We conclude that the burden estimates for information collection required by 

the Paperwork Reduction Act satisfy the Paperwork Reduction Act’s notice and comment 

requirements. Finally, we disagree with Southern Companies’ assertion that the 

Commission erred by basing its burden estimate calculations on an automated process. 

Order No. 771 noted that it expected e-Tag Authors and Balancing Authorities to use 

 94 See E-Tag NOPR, FERC Stats. & Regs. ¶ 32,675 at P 19; Order No. 771, FERC 

Stats. & Regs. ¶ 31,339 at P 61.

95 See Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 62.

96 We also note that, just as the Commission is giving consideration in this order to 

the arguments presented in the requests for rehearing, we would have given consideration 

to any contrary estimates of the burden of complying with the Final Rule promulgated in 

Order No. 771 if Southern Companies advanced any such alternative estimate in either 

reply comments or in its rehearing request.
Docket No. RM11-12-001 - 39 -

existing, largely automated procedures to provide the Commission with access to 

e-Tags.

97 However, the Commission made clear that its burden estimate calculations

were based on a manual, not automated, process.98 Thus, the estimate used in the Final 

Rule was deliberately very conservative, because wherever an automated process is used, 

the burden estimate was overstated.

C. Responsibilities of Balancing Authorities

1. Requests for Rehearing and Clarification

43. Southern Companies seek clarification regarding the activities a Balancing 

Authority should undertake in terms of conforming to the requirements of Order No. 771

and the penalties it will face if e-Tags do not conform to the requirements of Order 

No. 771. Southern Companies argue that requiring Balancing Authorities to reject e-Tags 

that do not list the Commission as an addressee could result in significant commercial 

and reliability disruptions.99 Southern Companies also state that the Commission should 

allow adequate time for the NAESB process to revise the applicable protocols and for 

Balancing Authorities to apply those protocols once they have been finalized before 

requiring compliance with Order No. 771. In addition, Southern Companies state that 

Balancing Authorities should not be held liable for any disclosure of confidential e-Tag 

 97 See Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 63.

98 See id. PP 64-65.

99 Southern Companies at 6.
Docket No. RM11-12-001 - 40 -

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.100

2. Commission Determination

44. Order No. 771-A clarified the role of Balancing Authorities with respect to 

providing the Commission access to e-Tags and found that Balancing Authorities should 

reject e-Tags that fail to include the Commission on the CC list rather than merely notify 

the Commission that this requirement has not been met. Order No. 771-A also rejected 

suggestions that we should delay the implementation of the rule until such time as the 

industry, through NAESB, can develop a formalized automated process.101 Therefore, 

we will not address those issues again here. We note, however, that the prediction of 

significant commercial and reliability disruptions resulting from the inclusion of the 

Commission on the CC list of e-Tags has not materialized.

45. We cannot make a blanket determination, as requested by Southern Companies,

concerning possible liability for the inadvertent disclosure of confidential e-Tag 

information by a Balancing Authority or a recipient of e-Tag data under Order No. 771 or 

publication of e-Tag data subject to FOIA. As noted in Order No. 771, some of the 

information contained in e-Tags is likely commercially sensitive and could result in 

 100 Id. at 9.

101 See, e.g., Order No. 771, FERC Stats. & Regs. ¶ 31,339 at PP 17-21. NAESB 

has since developed a process to implement the requirements under Order Nos. 771 and 

771-A. See NAESB Electronic Tagging Functional Specifications, Version 1.8.2, at 

Appendix A (Special Interconnection Implementation Requirements).
Docket No. RM11-12-001 - 41 -

competitive harm to market participants and the market as a whole if disclosed without 

reasonable confidentiality restrictions.102 Furthermore, Order No. 771-A stated that 

FOIA requests cannot be peremptorily foreclosed, but that, to the extent a person files a 

request to obtain e-Tag data from the Commission under FOIA, we expect that any 

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

requirements of FOIA’s exemption 4.103 We note that, if there is a disclosure of e-Tag 

data by a Balancing Authority or other recipient of confidential e-Tag data, any possible

liability will be addressed on a case-by-case basis. Factors such as whether the disclosure 

was inadvertent or whether any harm resulted from the disclosure will be taken into 

account by the Commission to determine whether any remedy or sanction is 

appropriate.104

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

103 See Order No. 771-A at P 28 (citing Order No. 771, FERC Stats. & Regs. 

¶ 31,339 at P 58). In particular, FOIA exemption 4 protects trade secrets and commercial 

or financial information that is privileged or confidential from disclosure.

104 See, e.g., Standards of Conduct for Transmission Providers, Order No. 717, 

FERC Stats. & Regs. ¶ 31,280, at P 293 (2008), order on reh’g, Order No. 717-A, FERC 

Stats. & Regs, ¶ 31,297, order on reh’g, Order No. 717-B, 129 FERC ¶ 61,123 (2009), 

order on reh’g, Order No. 717-C, 131 FERC ¶ 61,045 (2010), order on reh’g, Order 

No. 717-D, 135 FERC ¶ 61,017 (2011).
Docket No. RM11-12-001 - 42 -

D. Providing Access to RTOs, ISOs and MMUs

1. Requests for Rehearing and Clarification

46. NRECA contends that even if sections 307(a) and 222 of the FPA give the 

Commission the authority to require that the Commission be given access to e-Tag data, 

they do not authorize the Commission to require market participants to provide e-Tag 

data, on request, to RTOs, ISOs, or their MMUs on an ongoing, confidential basis.105 

NRECA states that Order No. 771 does not show that the Commission has the legal 

authority to require all market participants to provide e-Tag information on an ongoing 

basis to the Commission, much less to RTOs, ISOs and their MMUs.106 NRECA argues 

that section 307(a) authorizes investigations by the Commission and it does not permit 

the Commission to deputize third parties for this purpose. NRECA notes that, although

the Commission’s enforcement staff sometimes elects to share confidential investigative 

information with RTOs, ISOs or their MMUs, this practice does not authorize the 

Commission to require that selected private parties be provided access to e-Tag data 

upon request, on an ongoing basis. NRECA also argues that the Commission’s finding 

that e-Tag data may be helpful to RTOs, ISOs and MMUs in identifying conduct that 

may violate section 222 does not authorize the Commission’s action.

 105 NRECA at 3.

106 Id. at 2.
Docket No. RM11-12-001 - 43 -

47. NRECA argues that, in Electric Power Supply Association v. FERC (EPSA v. 

FERC),

107 the D.C. Circuit Court of Appeals rejected the Commission’s attempt to amend 

Rule 2201 to exempt communications between market monitors and Commission 

decisional employees from the Sunshine Act’s ban on ex parte communications. 

NRECA states that the court held that the Commission’s “claim that it has an interest in 

receiving ex parte communications” from market monitors “does not empower it to alter 

Congress’ explicit proscription against such communications.”108 NRECA states that the 

Commission’s interest in getting e-Tag data into the hands of RTOs, ISOs and their 

MMUs does not authorize the Commission to deputize these entities and use its 

investigative authority to provide them with data where nothing in the statute confers that 

power on the Commission.109

48. Southern Companies request that the Commission clarify that the requirement to 

provide e-Tag information to RTOs, ISOs, and MMUs, upon request, is limited to 

interchange transactions that flow into, out of, or across the RTO/ISO footprint. 

Furthermore, Southern Companies seek clarification that the requirement to provide 

e-Tag information to RTOs, ISOs and their MMUs, is limited to interchange transactions 

that may be useful in assessing loop flows or other activities (including market 

 107 391 F.3d 1255 (D.C. Cir. 2004).

108 NRECA at 21, citing 391 F.3d at 1258.

109Id.
Docket No. RM11-12-001 - 44 -

manipulation) within their markets.110 As an example, Southern Companies state that an 

MMU for CAISO should not be able to request information for an e-Tag representing a 

transfer from Southern Companies’ Balancing Authority Area to Tennessee Valley 

Authority, as it would provide the MMU no useful information in assessing the state of 

the market it monitors or the activities of participants in such market.111 Southern 

Companies argue that, if RTOs, ISOs and MMUs can utilize e-Tag information to assess 

loop flows or market manipulation within their markets, then the waiver of ordinary 

confidentiality protections should be carefully tailored to information that can assist them 

in monitoring such activities within the markets they are charged to monitor.112 Southern 

Companies add that the Commission should also require e-Tag Authors and Balancing 

Authorities to forward e-Tag information to the Balancing Authorities, upon request, for 

data related to transactions that flow into, out of, or across their areas and those that 

would be helpful in assessing loop flows in the same manner that RTOs and ISOs are 

provided such information.113

49. OATI seeks clarification as to what constitutes “appropriate confidentiality 

restrictions” with respect to RTOs, ISOs and MMUs that are entitled under 

 110 Southern Companies at 2-3, 10.

111 Id. at 10.

112 Id.

113 Id. at 2-3, 10.
Docket No. RM11-12-001 - 45 -

Order No. 771 to complete e-Tags.114 OATI states that there are many separate parties 

involved in an e-Tag and the logistics involved in all parties obtaining confidentiality 

restrictions from other parties will have a chilling effect on Order No. 771.115 OATI 

requests that the Commission consider setting forth an example of what would constitute 

“appropriate confidentiality restrictions,” attaching an industry-wide confidentiality 

agreement (the Operating Reliability Data Confidentiality Agreement or ORD 

Agreement) joined by multiple entities.116 OATI suggests that a multi-entity framework 

such as this one could be used to implement Order No. 771 and signatories to the 

document can be tracked in electronic format for validation and verification.117 OATI 

also seeks clarification of what evidence a requesting RTO, ISO or MMU must provide 

to show that appropriate confidentiality restrictions exist between the requestor and all 

interested entities and again points to the ORD Agreement.118

50. OATI also seeks to clarify whether the requesting RTO, ISO or MMU must direct 

the request for e-Tag data to both the applicable e-Tag Author and the sink Balancing 

 114 OATI at 2.

115 Id.

116 Id. at 4 (citing to http://www.nerc.com/files/ORD-Signatory-Status-Version3%20(updated%2011-16-2011).pdf).

117 Id.

118 Id. at 5.
Docket No. RM11-12-001 - 46 -

Authority, or if such request can be made to either the applicable e-Tag Author or the 

sink Balancing Authority.119

2. Commission Determination

51. Order No. 771 required that RTOs, ISOs, and MMUs are to be provided with 

access to complete e-Tag data, upon request to e-Tag Authors and Authority Services, 

subject to appropriate confidentiality restrictions. We affirm the determination made in 

Order No. 771 to provide RTOs, ISOs and MMUs with greater access to e-Tag 

information to assist them in identifying and referring to the Commission behavior that 

may constitute market manipulation under FPA section 222, to assist the Commission in 

its market surveillance activities, and to more efficiently operate their systems and 

markets. Prior to issuance of the Final Rule, e-Tag information was available to RTOs 

and ISOs only for those interchange transactions that flow into, out of, or across their 

operating footprints, but not for transactions scheduled outside of these entities’ 

footprints.120 Order No. 771 stated that, when market participants engage in conduct that 

constitutes market violations that cannot be detected without e-Tag information, access to 

the data shown on e-Tags can assist MMUs in identifying behavior that may constitute 

market manipulation under FPA section 222 and allow them to refer instances of such 

 119 Id.

120 See Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 52.
Docket No. RM11-12-001 - 47 -

conduct to the Commission.121 Following the issuance of Order No. 771, the 

Commission has received a referral of potential market manipulation by multiple market 

participants, which required analysis of the e-Tag data outside of the RTO/ISO footprint 

by the MMU. Sharing information with MMUs that monitor the markets within the 

United States can also help the Commission with its own market surveillance activities 

because the MMUs may provide additional insights to the Commission about potential 

market violations and market issues. Order No. 771 also stated, similarly, that providing 

complete e-Tag data to RTOs and ISOs may also assist them in identifying and referring 

to the Commission behavior that may constitute market manipulation under section 222 

and aid the Commission in its own market surveillance activities.

122 Furthermore, as 

noted in Order No. 771, effective market monitoring is enhanced by close collaboration 

between the MMUs, RTOs/ISOs, and the Commission’s Office of Enforcement during 

the referral process and during investigations.123

52. In addition, Order No. 771 stated that the transactions scheduled outside of these 

entities’ footprints can physically flow into their footprints and result in loop flows that 

 121 Id. P 53.

122 Id.

123 Id. (citing Southwest Power Pool, Inc., 129 FERC ¶ 61,163 (2009), order on 

reh’g, 137 FERC ¶ 61,046, at P 20 (2011)). See also New York Independent System 

Operator, 136 FERC ¶ 61,116 (2011).
Docket No. RM11-12-001 - 48 -

impact both the reliability of their systems and the markets that they administer.124 Due 

to congestion and other market impacts caused by loop flows, such transactions can have 

significant financial consequences. Thus, providing e-Tag information to RTOs and 

ISOs can assist them in more efficiently operating their systems and their markets.

125

53. We also disagree with NRECA’s argument that the Commission’s actions in Order 

No. 771 to allow RTOs, ISOs and MMUs to gain access to e-Tag data are tantamount to 

“deputizing” these entities. RTOs, ISOs and MMUs are obligated to ensure the proper 

functioning of the markets they administer and oversee. One means of accomplishing 

this goal is by detecting and preventing market manipulation. The Commission has a 

statutory obligation to ensure that wholesale electricity markets function properly and 

without market manipulation and thereby result in just and reasonable rates. Although

the Commission’s obligation to ensure that wholesale markets are functioning properly 

may be aligned with the obligations of RTOs, ISOs and MMUs to ensure that their 

markets are functioning properly, it does not follow that the Commission’s actions to 

enable greater access to e-Tags to RTOs, ISOs and MMUs results in “deputizing” these 

entities. Nor do the Commission’s actions in Order No. 771 run counter to the court’s 

holding in EPSA v. FERC. NRECA’s analogy to EPSA v. FERC is flawed because, 

unlike that case, Order No. 771 does not involve potential ex parte communications. 

 124 Id. P 52.

125 Id.
Docket No. RM11-12-001 - 49 -

54. Order No. 771 required that RTOs, ISOs and their MMUs be afforded access to 

complete e-Tags, upon request to e-Tag Authors and Authority Services, “subject to 

appropriate confidentiality restrictions.” OATI seeks clarification as to what would 

constitute “appropriate confidentiality restrictions” and suggests that the Commission 

consider using a multi-entity framework such as the ORD Agreement to implement Order 

No. 771. At the outset, we note that the Commission did not intend the reference to 

“appropriate confidentiality restrictions” to foreclose RTOs and ISOs from proposing 

confidentiality provisions in their tariffs to protect e-Tag data specifically, similar to the 

types of provisions contained in RTO and ISO tariffs that protect other types of 

confidential market data. PJM and MISO took such an approach to effectuate access to 

e-Tag information under Order No. 771. In particular, PJM revised the PJM Tariff and 

Operating Agreement to: (1) make clear that PJM and the PJM MMU must maintain the 

confidentiality of e-Tags or to ensure there are appropriate confidentiality restrictions in 

place before e-Tags can be received from or disclosed to other RTOs, ISOs and MMUs; 

(2) require PJM to make e-Tags available to the Commission, and to make e-Tags 

available to other RTOs and ISOs upon request; (3) give the PJM MMU authority to 

share e-Tag data with other MMUs upon request; and (4) allow PJM and the MMU to 

use an agent such as OATI to provide the requested e-Tags to the Commission, RTOs,
Docket No. RM11-12-001 - 50 -

ISOs and MMUs.126 MISO made similar revisions to its Tariff to effectuate access to 

e-Tag data under Order No. 771.127 We find that the approach taken by PJM and MISO 

to effectuate access to e-Tag data under Order No. 771 is acceptable.

55. We deny Southern Companies’ request for clarification that e-Tag data be limited 

to interchange transactions that flow into, out of, or across the RTO and ISO footprint or 

markets. As noted in Order No. 771, RTOs and ISOs already had access to e-Tag 

information for those interchange transactions that are scheduled to flow into, out of, or 

across their operating footprints, but they could not access e-Tags for transactions 

scheduled outside of their footprints.128 For the reasons set forth in this order and Order 

No. 771, we affirm the determination to allow RTOs and ISOs access to e-Tags for 

transactions scheduled outside of their footprints.

56. In response to Southern Companies’ concern that the MMU for CAISO would be 

able to request information for an e-Tag representing a transfer from Southern 

Companies’ Balancing Authority Area to the Tennessee Valley Authority, we note that 

we would expect RTOs, ISOs or MMUs that request access to e-Tag data to request this 

data for transactions within the Interconnection where the RTO or ISO is located. In this 

 126 See revisions to Article I of Attachment M-Appendix of the PJM OATT and 

Section 18.17 of the Amended and Restated Operating Agreement accepted in PJM 

Interconnection, L.L.C., 144 FERC ¶ 61,152 (2013).

127 See revisions to Section 38.9.1(A) and Section 54.4 of the MISO OATT 

accepted by delegated letter order in Docket No. ER13-2327-000 on October 29, 2013.

128 Order No. 771, FERC Stats. & Regs. ¶ 31,339 at P 52.
Docket No. RM11-12-001 - 51 -

regard, for example, we would not expect the CAISO MMU to request e-Tag data for 

transactions taking place in the Eastern Interconnection because that information would 

likely not be useful for purposes of monitoring the behavior of CAISO market 

participants or the functioning of the CAISO market.

57. We also disagree that Balancing Authorities, such as Southern Companies, should 

be able to acquire greater access to e-Tag data in the same manner that Order No. 771 

prescribes such information may be provided to RTOs and ISOs.129 As explained above,

enabling RTOs, ISOs and MMUs to gain greater access to e-Tags for transactions that are 

scheduled outside of their footprints will assist them in identifying and referring 

potentially manipulative behavior, assist the Commission in its market surveillance 

activities, and allow them to more efficiently operate their systems and markets. Unlike 

RTOs and ISOs, Balancing Authorities are not responsible for detecting and preventing 

potentially manipulative behavior so as to ensure the proper functioning of their markets. 

Therefore, we do not see a need to allow greater access to e-Tag data for Balancing 

Authorities apart from the access they already have.

58. In regard to OATI’s request for clarification as to whether the requesting RTO, 

ISO or MMU must direct the request for e-Tag data to both the applicable e-Tag Author 

and the sink Balancing Authority, or if such a request can be made to either the 

applicable e-Tag Author or the sink Balancing Authority, we clarify that the RTO, ISO or 

 129 Southern Companies at 2-3, 10.
Docket No. RM11-12-001 - 52 -

MMU may request the relevant information directly from the e-Tag Author or the sink 

Balancing Authority or through a company, such as OATI, that provides agent services to 

the E-Tag Authors or authority services to the Balancing Authorities.

130

E. Clarification of E-Tag Access

1. Request for Rehearing or Clarification

59. OATI seeks clarification that the Final Rule’s reference to “complete e-Tags” 

at P 52 has the same meaning as the definition of “complete e-Tags” in footnote 2 of the 

Final Rule.131 OATI also asks for clarification that this includes only those e-Tags which 

include the Commission as a CC’d entity.

2. Commission Determination

60. Order No. 771 at footnote 2 defined “complete e-Tags” 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; 

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 

 130 The Agent Service works as an agent for E-Tag Authors by allowing for the 

creation of an e-Tag and the electronic transfer of that information to the appropriate 

Authority Service. The Authority Service works as an agent on behalf of the sink 

Balancing Authority by validating and distributing e-Tags for approval. See Order 

No. 771, FERC Stats & Regs ¶ 31,339, at n.4 and n.6.

131 OATI at 2.
Docket No. RM11-12-001 - 53 -

reservations, and energy schedules. Order No. 771 at paragraph 52 required e-Tag 

Authors and Balancing Authorities to make available to an RTO, ISO or MMU access to 

“complete e-Tags,” upon request to the e-Tag Author and Balancing Authority. In 

response to OATI’s request that we clarify whether the “complete e-Tags” referenced in 

Paragraph 52 of Order No. 771 refer to the definition provided in footnote 2, we clarify 

that the reference to “complete e-Tags” at Paragraph 52 has the same meaning as the 

definition of “complete e-Tags” in footnote 2. As noted above, however, we would 

expect RTOs, ISOs and MMUs that request access to e-Tags under Order No. 771 to 

request them for transactions for the interconnection within which they are located. For 

example, we would expect an RTO, ISO or MMU located in the Western Interconnection 

to request access to e-Tags only for transactions scheduled in the Western 

Interconnection rather than requesting access to e-Tags for transactions scheduled in both 

the Western and Eastern Interconnections.

61. With regard to OATI’s request for clarification that the e-Tags referenced in Order 

No. 771 only include those e-Tags which include the Commission as a CC’d entity, we 

note that Order No. 771-A determined that 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 for any e-Tags created on or after 

March 15, 2013.

132

 132 Order No. 771-A, 142 FERC ¶ 61,181 at P 18.
Docket No. RM11-12-001 - 54 -

The Commission orders:

The Commission hereby denies rehearing and clarifies certain issues, as discussed 

in the body of the order.

By the Commission.

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.