153 FERC ¶ 61,309

UNITED STATES OF AMERICA

Federal Energy Regulatory Commission

18 CFR Part 35

Docket No. RM16-3-000

Ownership Information in Market-Based Rate Filings

(December 17, 2105)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes to 

amend its regulations to clarify the scope of ownership information that sellers seeking to 

obtain or retain market-based rate authority must provide. The Commission proposes to 

find that the current policy that requires sellers to provide comprehensive ownership 

information is not necessary for the Commission’s assessment of horizontal or vertical 

market power. The Commission further proposes to amend its regulations to clarify the 

types of ownership changes that must be reported to the Commission via a notice of 

change in status. 

DATES: Comments are due [INSERT DATE 60 days after publication in the 

FEDERAL REGISTER].
Docket No. RM16-3-000 - 2 -

ADDRESSES: Comments, identified by docket number, may be filed in the following 

ways:

• Electronic Filing through http://www.ferc.gov. Documents created electronically 

using word processing software should be filed in native applications or print-toPDF format and not in a scanned format.

• Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver 

comments to: Federal Energy Regulatory Commission, Secretary of the 

Commission, 888 First Street, NE, Washington, DC 20426.

Instructions: For detailed instructions on submitting comments and additional 

information on the rulemaking process, see the Comment Procedures Section of this 

document.

FOR FURTHER INFORMATION CONTACT:

Ashley Dougherty (Technical Information)

Office of Energy Market Regulation

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

(202) 502-8851 ashley.dougherty@ferc.gov

Laura Chipkin (Legal Information)

Office of General Counsel

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

(202) 502-8615 laura.chipkin@ferc.gov 

SUPPLEMENTARY INFORMATION:
UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Ownership Information in Market-Based Rate Filings Docket No. RM16-3-000

NOTICE OF PROPOSED RULEMAKING

TABLE OF CONTENTS

Paragraph Numbers

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

II. Proposed Reform ..................................................................................................................6.

A. Ownership Information Required in Initial Applications and Triennial Updated 

Market Power Analyses..............................................................................................................6.

B. Ownership Information Required in Change in Status Filings.............................................15.

III. Information Collection Statement .......................................................................................18.

IV. Environmental Analysis......................................................................................................22.

V. Regulatory Flexibility Act ...................................................................................................24.

VI. Comment Procedures ..........................................................................................................25.

VII. Document Availability.......................................................................................................29.
153 FERC ¶ 61,309

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Ownership Information in Market-Based Rate Filings Docket No. RM16-3-000

NOTICE OF PROPOSED RULEMAKING

(December 17, 2015)

1. In this Notice of Proposed Rulemaking (NOPR), the Commission proposes to

amend its regulations to clarify the scope of ownership information that sellers seeking to 

obtain or retain market-based rate authority must provide.1 The Commission proposes to 

find that the current policy that requires sellers to provide comprehensive ownership 

information is not necessary for the Commission’s assessment of horizontal or vertical 

market power. The Commission further proposes to amend its regulations to clarify the 

types of ownership changes that must be reported to the Commission via a notice of 

change in status.

I. Background

2. The Commission allows power sales at market-based rates if the seller and its 

affiliates do not have, or have adequately mitigated, horizontal and vertical market 

power. In Order No. 697, the Commission stated that “[t]he first step for a seller seeking 

 1

All references in this NOPR to “seller” (or “sellers”) refer to both applicants 

seeking to obtain market-based rate authority and to sellers seeking to retain marketbased rate authority. 
Docket No. RM16-3-000 - 2 -

market-based rate authority is to file an application to show that it and its affiliates do not 

have, or have adequately mitigated, market power.”2

 In Order No. 697, the Commission 

adopted two indicative screens for assessing horizontal market power: the pivotal 

supplier screen and the wholesale market share screen, each of which serves as a cross 

check on the other to determine whether sellers may have market power and should be 

further examined.3 With respect to the vertical market power analysis, in cases where a 

public utility or any of its affiliates owns, operates, or controls transmission facilities, the 

Commission requires that there be a Commission-approved Open Access Transmission 

Tariff (OATT) on file or that the seller or its applicable affiliate has received waiver of 

the OATT requirement or qualifies for the blanket OATT waiver provided by Order 

No. 807,

4 before granting a seller market-based rate authorization.5

 The Commission 

 2 Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and 

Ancillary Services by Public Utilities, Order No. 697, FERC Stats. & Regs. ¶ 31,252, 

at P 290, clarified, 121 FERC ¶ 61,260 (2007) (Clarifying Order), order on reh’g, Order 

No. 697-A, FERC Stats. & Regs. ¶ 31,268, clarified, 124 FERC ¶ 61,055, order on reh’g, 

Order No. 697-B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh’g, Order 

No. 697-C, FERC Stats. & Regs. ¶ 31,291 (2009), order on reh’g, Order No. 697-D, 

FERC Stats. & Regs. ¶ 31,305 (2010), aff’d sub nom. Mont. Consumer Counsel v. FERC, 

659 F.3d 910 (9th Cir. 2011), cert. denied, 133 S. Ct. 26 (2012).

3 Id., FERC Stats. & Regs. ¶ 31,252 at PP 62-63.

4 Open Access and Priority Rights on Interconnection Customer’s Interconnection 

Facilities, Order No. 807, 80 Fed. Reg. 17,654 (Apr. 1, 2015), FERC Stats. & Regs. 

¶ 31,367 (2015). 

5 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 408. See also Kingfisher 

Wind, LLC, 151 FERC ¶ 61,276, at PP 26-27 (2015) (providing guidance on how 

(continued ...)
Docket No. RM16-3-000 - 3 -

also considers a seller’s ability to erect other barriers to entry as part of the vertical 

market power analysis.6

 As such, the Commission requires a seller to provide a 

description of its ownership or control of, or affiliation with an entity that owns or 

controls, intrastate natural gas transportation, storage or distribution facilities; and 

physical coal supply sources and ownership of or control over who may access 

transportation of coal supplies.

7

 In addition, a seller is required to make an affirmative 

statement that it and its affiliates have not erected barriers to entry into the relevant 

market and will not erect barriers to entry into the relevant market.8

3. On rehearing, in Order No. 697-A, the Commission set forth a requirement that 

a seller seeking to obtain or retain market-based rate authority must identify all of its 

upstream owners as well as describe the business activity of its owners and whether they 

are involved in the energy industry. Specifically, footnote 258 of Order No. 697-A

states:

 

qualified sellers can claim blanket OATT waiver under Order No. 807 and demonstrate 

lack of vertical market power).

6 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at PP 440-451.

7 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at 447; 18 CFR 35.37(e) (2015). 

The Commission previously had also required sellers to describe sites for generation 

capacity, but eliminated this requirement in Order No. 816. See Refinements to Policies 

and Procedures for Market-Based Rates for Wholesale Sales of Electric Energy, 

Capacity and Ancillary Services by Public Utilities, Order No. 816, 80 Fed. Reg. 67,056 

(Oct. 30, 2015), 153 FERC ¶ 61,065, at PP 212, 368 (2015) (Order No. 816).

8 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at PP 447-448.
Docket No. RM16-3-000 - 4 -

A seller seeking market-based rate authority must provide information 

regarding its affiliates and its corporate structure or upstream ownership. 

To the extent that a seller’s owners are themselves owned by others, the 

seller seeking to obtain or retain market-based rate authority must identify 

those upstream owners. Sellers must trace upstream ownership until all 

upstream owners are identified. Sellers must also identify all affiliates. 

Finally, an entity seeking market-based rate authority must describe the 

business activities of its owners, stating whether they are in any way 

involved in the energy industry.9

4. However, as discussed below, after seven years of experience in implementing the 

requirements of footnote 258, we believe that the associated burdens on the industry of

providing this information may outweigh the benefits of this information for purposes of 

assessing whether a seller should be granted market-based rate authorization.10 As part of 

that assessment, the Commission requires the submission of an asset appendix containing 

the generation and transmission assets of the seller and its affiliates.11 Further, in Order 

No. 816, the Commission instituted a requirement for the submission of a corporate 

organizational chart depicting all affiliates, as defined in section 35.36(a)(9) of the 

Commission’s regulations.

12 

 9 Order No. 697-A, FERC Stats. & Regs. ¶ 31,268 at n.258.

10 Market-based rate filings include initial market-based rate applications, notices 

of change in status and triennial updated market power analyses.

11 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 895; 18 CFR 35.37(a)(2) 

(2015).

12 Order No. 816, 153 FERC ¶ 61,065 at P 333 (to be codified at 18 CFR 

35.37(a)(2) (2015)).
Docket No. RM16-3-000 - 5 -

5. In conjunction with the new organizational chart requirement in Order No. 816,

we propose in this NOPR to provide a new complementary framework under which 

sellers can describe their ownership structure, as described more fully below. Consistent 

with this new framework, we also propose to clarify when a change in ownership would 

trigger the requirement in section 35.42 to file a notice of change in status.

II. Proposed Reform

A. Ownership Information Required in Initial Applications and Triennial 

Updated Market Power Analyses

6. Following the issuance of Order No. 697-A in 2008, corporate families, structures, 

and ownership in the energy industry have become increasingly complex. Through the 

Commission’s implementation of the requirements of footnote 258, it has become clear 

that the upstream ownership structure of sellers is often layered with numerous levels and 

types of ownership interests (e.g., full and partial, passive and controlling, etc.). In many 

instances, sellers initially do not fully comply with the requirements of footnote 258 in 

their market-based rate filings. Many sellers have difficulty obtaining the names of all 

owners, particularly those that own a small percentage of the seller or are a partial owner 

of a partial indirect owner. As a result, in response to requests by Commission staff for 

the information required by footnote 258, some sellers submit multiple amendments to 

their filings, resulting in extra expenditures for the seller and significant processing 

delays for information that does not directly affect the analysis of the seller’s market 

power. 
Docket No. RM16-3-000 - 6 -

7. Sellers have frequently alleged that it is very difficult to identify and describe 

individual shareholders, particularly those with less than ten percent voting interests,

because they do not know and cannot obtain this information themselves.13 In such 

circumstances, strict adherence to the requirements of footnote 258 could require 

rejection of filings on procedural grounds irrespective of any market power concerns.14 

8. As noted above, a seller seeking market-based rate authority must show that it and 

its affiliates do not have, or have adequately mitigated, horizontal market power. Further, 

the Commission’s review of a seller’s ability to exercise vertical market power, whether 

through ownership of transmission facilities or other barriers to entry, involves examining

the seller and its affiliates.15 However, because information about owners that are not 

considered affiliates under section 35.36(a)(9) is not necessary to evaluate horizontal 

and/or vertical market power (and is not required to be identified in the asset appendix or 

the corporate organizational chart), continuing to require information on unaffiliated 

 13 See, e.g., 2014 ESA Project Company, LLC, Amended Filing at 2, Docket 

No. ER15-1496-001 (filed June 4, 2015) (“Shareholders are not required to notify, or 

obtain consent from, [Applicant’s managing organization] when shareholders transfer 

their shares or the associate beneficial interests or voting rights”).

14See 18 CFR 35.5 (2015) (providing for rejection of rate filing for failure to 

comply with the applicable requirements).

15 See 18 CFR 35.37 (2015).
Docket No. RM16-3-000 - 7 -

owners may create a burden that is unrelated to the Commission’s approach to 

determining whether a seller should have market-based-rate authority.

16 

9. Accordingly, we propose to amend section 35.37(a)(2) of the Commission’s 

regulations to provide a new framework under which sellers would be required to

describe their ownership structure that is both less burdensome for the industry and more 

useful to the Commission for purposes of whether a seller should have market-based-rate 

authority. Under this new framework, we propose to revise section 35.37(a)(2) of the 

Commission’s regulations to define an affiliate owner as an owner that meets the 

definition of affiliate provided in 18 CFR 35.36(a)(9).17 We propose to require that a 

 16 We note that the Commission recently issued a NOPR seeking comment on 

a proposal to require each regional transmission organization and independent system 

operator to electronically deliver to the Commission data from market participants 

that lists market participants’ “connected entities,” including entities that have certain 

ownership, employment, debt or contractual relationships to the market participant, and 

describes the nature of such relationships. See Collection of Connected Entity Data from 

Regional Transmission Organizations and Independent System Operators, Docket 

No. RM15-23-000, 80 FR 58,382 (Sept. 29, 2015), FERC Stats. & Regs. ¶ 32,711 (2015) 

(cross-referenced at 152 FERC ¶ 61,219 (2015)). We recognize that some of the 

ownership information that is proposed herein to be no longer necessary for determining 

whether to grant market-based rate authority would be required under the connected 

entities NOPR for the purposes described in that proceeding. 

17 As specified in the Commission’s current regulations, “affiliate“ of a specified 

company means: (i) Any person that directly or indirectly owns, controls, or holds with 

power to vote, 10 percent or more of the outstanding voting securities of the specified 

company; (ii) Any company 10 percent or more of whose outstanding voting securities 

are owned, controlled, or held with power to vote, directly or indirectly, by the specified 

company; (iii) Any person or class of persons that the Commission determines, after 

appropriate notice and opportunity for hearing, to stand in such relation to the specified 

company that there is liable to be an absence of arm's-length bargaining in transactions 

between them as to make it necessary or appropriate in the public interest or for the 

(continued ...)
Docket No. RM16-3-000 - 8 -

seller seeking to obtain or retain market-based rate authority identify and describe 

two categories of upstream owners. First, a seller must identify and describe the furthest 

upstream affiliate owner(s) in its ownership chain, which we propose to define as the 

seller’s “ultimate affiliate owner(s).”18 Second, a seller must identify and describe all 

affiliate owners that have a franchised service area or market-based rate authority, or that

directly own or control: generation; transmission; intrastate natural gas transportation,

storage or distribution facilities; physical coal supply sources or ownership of or control 

over who may access transportation of coal supplies.

19 To the extent that an affiliate 

owner does not fall into either of the two categories described above, the seller will not 

need to identify it when describing its ownership structure.

10. Identifying the ultimate affiliate owner is necessary for the Commission to form a 

meaningful picture of a seller’s ownership structure and to understand what affiliates 

 

protection of investors or consumers that the person be treated as an affiliate; and

(iv) Any person that is under common control with the specified company. For purposes 

of paragraph (a)(9)of the Commission’s regulations, owning, controlling or holding with 

power to vote, less than 10 percent of the outstanding voting securities of a specified 

company creates a rebuttable presumption of lack of control. 18 CFR 35.36(a)(9) (2015).

18 A seller may have more than one ultimate affiliate owner. For example, if a 

seller is owned 50 percent by affiliate A and 50 percent by affiliate B, there are two 

ownership “chains” or “branches.” The seller must identify and describe the ultimate 

affiliate owner at the top of each chain/branch, i.e., the last affiliate owner in that 

chain/branch. 

19 To the extent sellers will be describing such affiliate owners in the horizontal 

and vertical market power sections of the filing, that description will fulfill this 

requirement.
Docket No. RM16-3-000 - 9 -

ultimately have the power to influence a seller’s operations. The seller should also 

describe each ultimate affiliate owner’s connection to the seller, and this description 

should be sufficient to allow the Commission to understand the relation between the 

seller and the ultimate affiliate owner(s), and could include references to the required 

corporate organizational chart. Identifying affiliate owners that have a franchised 

service area or market-based rate authority, or that directly own or control: generation;

transmission; intrastate natural gas transportation, storage or distribution facilities; 

physical coal supply sources or ownership of or control over who may access 

transportation of coal supplies assists the Commission in its analysis of a seller’s 

horizontal and vertical market power. 

11. In addition, where sellers are directly or indirectly owned or controlled by a 

foreign government or any political subdivision of a foreign government or any 

corporation which is owned in whole or in part by such entity, we propose to require 

that the seller identify such foreign government, political subdivision, or corporation.

12. We caution sellers to examine all ownership information to ensure that the 

required affiliate owners are identified. Sellers should not assume that owners are not 

affiliates of the seller without looking to the top of the ownership chain. For example, 

suppose seller (Company A) has four owners (Companies B, C, D, and E) each of which 

directly owns eight percent of the voting securities of A. If Company F owns 100 percent

of the voting securities of Companies B, C, D, and E, under the Commission’s affiliate 

definition, Company F indirectly owns 32 percent of the voting securities of Company A

and is an affiliate of Company A. Under our proposed new framework, sellers must 
Docket No. RM16-3-000 - 10 -

identify Company F only if Company F is an ultimate affiliate owner or if it is an affiliate 

owner that has a franchised service area or market-based rate authority, or that directly

owns or controls: generation; transmission; intrastate natural gas transportation, storage 

or distribution facilities; physical coal supply sources or ownership of or control over 

who may access transportation of coal supplies.

20

13. With respect to owners that a seller represents to be passive, we propose to require 

that the seller affirm that its passive owners own a separate class of securities, have 

limited consent rights, do not exercise day-to-day control over the company, and cannot 

remove the manager without cause.21

14. We seek comments on these proposals.

B. Ownership Information Required in Change in Status Filings

15. The Commission requires market-based rate sellers to timely report any change in 

status that would “reflect a departure from the characteristics that the Commission relied 

upon in granting market-based rate authority.” Section 35.42 of the Commission’s 

 20 We further caution sellers to be mindful that the Commission does not allow 

for a derivative share method to calculate ownership interests in downstream, partiallyowned entities for purposes of identifying affiliates. See Tonopah Solar Energy, LLC, 

151 FERC ¶ 61,203, at PP 11-12 (2015).

21 See, e.g., AES Creative Resources, L.P., 129 FERC ¶ 61,239 (2009) (AES 

Creative) (distinguishing between controlling interests and passive investment interests). 

See also EquiPower Resources Management, LLC, Docket No. ER10-1089-000 (June 16, 

2010) (deficiency letter asking seller to demonstrate that certain interests were passive by 

providing answers to clarifying questions).
Docket No. RM16-3-000 - 11 -

regulations, 18 CFR § 35.42, which provides a non-exhaustive list of events that could 

trigger the change in status reporting requirement, is silent as to generic ownership

changes, but requires that a seller must report certain new affiliations with any entity not 

disclosed in the application for market-based rate authority that has a franchised service 

area, or that directly owns or controls: generation facilities; transmission facilities;

intrastate natural gas transportation, storage or distribution facilities; physical coal supply 

sources or ownership of or control over who may access transportation of coal supplies.

However, a literal reading of footnote 258 requires sellers to report changes in upstream 

ownership via notices of change in status filings.22 

16. We believe that uncertainty as to the interpretation of footnote 258 has led to 

inconsistent reporting of changes in ownership. In our experience, some sellers report 

any change in ownership, other sellers only report changes in ownership when the new 

owner would be considered an affiliate pursuant to section 35.36(a)(9), and yet other 

sellers only report changes in ownership when the change in ownership causes a change 

in one of the triggering events explicitly listed in section 35.42. Accordingly, we propose 

to resolve the uncertainty and create a consistent reporting standard by amending 

 22 Footnote 258 provides: “To the extent that a seller’s owners are themselves 

owned by others, the seller seeking to obtain or retain market-based rate authority must 

identify those upstream owners.” See Order No. 697-A, FERC Stats. & Regs. ¶ 31,268 

at n.258 (emphasis added).
Docket No. RM16-3-000 - 12 -

section 35.42 of the Commission’s regulations23 to specify the types of ownership 

changes that would require a change in status filing. 

17. In light of our proposal to require sellers to identify and describe in their initial 

applications and triennial updated market power analyses their ultimate affiliate owners, 

and all affiliate owners that have franchised service areas or market-based rate authority 

or that directly own or control: generation; transmission; intrastate natural gas 

transportation, storage or distribution facilities; physical coal supply sources or

ownership of or control over who may access transportation of coal supplies it follows 

that the identity of such affiliate owners are characteristics that the Commission relies

upon in granting the seller market-based rate authority. However, we are also mindful of 

Order No. 816, in which the Commission amended section 35.42 to provide a 100 MW 

threshold for reporting new affiliations, and thus we propose that these two concepts be 

combined, as described below. In addition, we propose in the instant rulemaking to 

specify the following scenario as an additional departure from the characteristics the 

Commission relied upon in granting market-based rate authority and which should be 

reported to the Commission: when the seller acquires a new ultimate affiliate owner(s). 

Accordingly, we propose to require sellers to submit a notice of change in status in this

scenario as well. In summary, combining all three of the above concepts, we propose that 

 23 In Order No. 816, the Commission amended, among other things, sections 35.37 

and 35.42 of its regulations. The further proposed regulatory text changes in this NOPR 

are keyed off of the new regulatory text as promulgated in Order No. 816.
Docket No. RM16-3-000 - 13 -

a change in status reporting requirement will be triggered by: (a) any change in the 

seller’s ultimate affiliate owner(s); or (b) the introduction of any new affiliate owner of 

the seller that has a franchised service area or that: directly owns or controls generation

(if it represents a 100 MW or more net increase in seller and affiliate generation); owns, 

operates or controls transmission; or that directly owns or controls: generation; 

transmission; intrastate natural gas transportation, storage or distribution facilities;

physical coal supply sources or ownership of or control over who may access 

transportation of coal supplies.

24 We remind sellers that the provisions in 

section 35.42(a)(1) apply to the seller and its affiliates because the Commission considers 

affiliates’ assets when assessing a seller’s horizontal and vertical market power.

25 

III. Information Collection Statement

18. The Paperwork Reduction Act (PRA)26 requires each federal agency to seek and 

obtain Office of Management and Budget (OMB) approval before undertaking a 

 24 We note that some of these requirements exist in the current regulation or the 

regulation as revised by Order No. 816.

25 See Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 1017 (“the 

Commission’s change in status requirements are intended to track the requirements 

embedded in the horizontal and vertical analysis as well as the affiliate abuse 

representations.”). See also id. P 3 n.2 (major aspects of the Commission’s market-based 

rate regulatory regime include “whether a market-based rate seller or any of its affiliates 

has market power in generation or transmission and, if so, whether such market power 

has been mitigated” and “whether the seller or its affiliates can erect other barriers to 

entry.”)

26 44 U.S.C. 3501-3520.
Docket No. RM16-3-000 - 14 -

collection of information directed to ten or more persons or contained in a rule of general 

applicability. OMB’s regulations,27 in turn, require approval of certain information 

collection requirements imposed by agency rules. Upon approval of a collection(s) of 

information, OMB will assign an OMB control number and an expiration date. 

Respondents subject to the filing requirements of a rule will not be penalized for failing 

to respond to these collection(s) of information unless the collection(s) of information 

display a valid OMB control number. 

19. The Commission is submitting the proposed modifications to its information 

collection to OMB for review and approval in accordance with section 3507(d) of the 

Paperwork Reduction Act of 1995.

20. The following table provides the estimated burden reduction proposed in 

RM16-3:

28

 27 5 CFR 1320 (2015).

28 In Order No. 697-A, the Commission required that sellers seeking to obtain 

or retain market-based rate authority identify all upstream owners and affiliates. Order 

No. 697-A, FERC Stats. & Regs. ¶ 31,268 at P 181 n.258. The Commission most 

recently updated the burden estimates associated with the market-based rate program in 

Order No. 816, which will become effective on January 28, 2016. The PRA package and 

burden estimates for the Order No. 816 are pending OMB review.
Docket No. RM16-3-000 - 15 -

FERC-919, Estimated Changes, due to Proposed Rule in RM16-3

Type of 

Requirement

Number of 

Respondents

(1)

Annual 

Number of 

Responses per 

Respondent

(2)

Total Number 

of Responses 

(1)*(2)=(3)

Average 

Burden Hours 

& Cost per 

Response29

(4)

Annual Burden 

Hours & Total 

Annual Cost 

(3)*(4)=(5)

Reduction of 

requirement 

for sellers to

describe entire 

ownership 

structure in 

Initial 

Applications 

and Triennial 

Updated 

Market Power 

Analyses, & 

Change of 

Status --

[Decrease in 

burden and 

cost] 509 1 509

-40 hrs.; 

-$3,858

-20,360 hrs.; 

-$1,963,722

Title: FERC-919, Market Based Rates for Wholesale Sales of Electric Energy, Capacity 

and Ancillary Services by Public Utilities.

Action: Proposed revision to existing collection.

OMB Control No: 1902-0234.

Respondents: Business or other for profit, and not for profit institutions.

 29 The Commission estimates this figure based on the Bureau of Labor Statistics 

data (for the Utilities sector, at http://www.bls.gov/oes/current/naics2_22.htm, plus 

benefits information at http://www.bls.gov/news.release/ecec.nr0.htm). The average 

hourly cost (salary plus benefits) of $96.45 is based on the following occupational 

categories: 

• Lawyer (Code 23-0000), $129.87/hour

• Management Analyst (Code 13-1111), $63.03/hour
Docket No. RM16-3-000 - 16 -

Frequency of Responses: As needed.

Necessity of the Information: This NOPR reduces the amount and scope of ownership 

information that sellers must provide in their market-based rate filings. 

Interested persons may obtain information on the reporting requirements by contacting 

the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First 

Street, NE, Washington, DC 20426 [Attention: Ellen Brown, e-mail: 

DataClearance@ferc.gov, phone: (202) 502-8663, fax: (202) 273-0873]. 

21. Comments concerning the information collection proposed in this NOPR and the 

associated burden estimates, should be sent to the Commission in this docket and may 

also be sent to the Office of Management and Budget, Office of Information and 

Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory 

Commission]. For security reasons, comments should be sent by e-mail to OMB at the 

following e-mail address: oira_submission@omb.eop.gov. Please refer to OMB Control 

Number 1902-0234 in your submission to OMB. 

IV. Environmental Analysis

22. The Commission is required to prepare an Environmental Assessment or an 

Environmental Impact Statement for any action that may have a significant adverse effect 

on the human environment.30

 30 Regulations Implementing the National Environmental Policy Act of 1969, 

Order No. 486, FERC Stats. & Regs. ¶ 30,783 (1987).
Docket No. RM16-3-000 - 17 -

23. The Commission has categorically excluded certain actions from this requirement 

as not having a significant effect on the human environment. Included in the exclusion 

are rules that are clarifying, corrective, or procedural, or that do not substantially change 

the effect of the regulations being amended.31 The actions here fall within this 

categorical exclusion in the Commission’s regulations.

V. Regulatory Flexibility Act 

24. The Regulatory Flexibility Act of 1980 (RFA)32 generally requires a description 

and analysis of proposed rules that will have significant economic impact on a substantial 

number of small entities. The Small Business Administration (SBA) revised its size 

standard (effective January 22, 2014) for electric utilities from a standard based on 

megawatt hours to a standard based on the number of employees including affiliates.33 

This NOPR, if adopted, reduces (for small and large entities) the burden and expense 

associated with filing market-based rate applications and triennial market power updates 

by clarifying the current regulations and by requiring identification of only the ultimate 

affiliate owner(s) and affiliate owners that directly own or control generation, 

transmission, or inputs to electric power production, have a franchised service area, or 

have market-based rate authority, rather than the comprehensive ownership information 

 31 18 CFR 380.4(a)(2)(ii) (2015).

32 5 U.S.C. 601-612 (2012).

33 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77,343 

(Dec. 23, 2013).
Docket No. RM16-3-000 - 18 -

currently required. In addition, the Commission clarifies and limits the types of 

ownership changes that must be reported to the Commission via a notice of change in 

status. Accordingly, the Commission certifies that this NOPR, if adopted, will not have a 

significant economic impact on a substantial number of small entities. An analysis under 

the RFA is not required.

VI. Comment Procedures

25. The Commission invites interested persons to submit comments on the matters and 

issues proposed in this notice to be adopted, including any related matters or alternative 

proposals that commenters may wish to discuss. Comments are due [INSERT DATE 

60 days after publication in the FEDERAL REGISTER]. Comments must refer to 

Docket No. RM16-3-000, and must include the commenter's name, the organization they 

represent, if applicable, and their address in their comments.

26. The Commission encourages comments to be filed electronically via the eFiling 

link on the Commission's web site at http://www.ferc.gov. The Commission accepts 

most standard word processing formats. Documents created electronically using word 

processing software should be filed in native applications or print-to-PDF format and not 

in a scanned format. Commenters filing electronically do not need to make a paper 

filing.

27. Commenters that are not able to file comments electronically must send an 

original of their comments to: Federal Energy Regulatory Commission, Secretary of the 

Commission, 888 First Street NE, Washington, DC 20426.
Docket No. RM16-3-000 - 19 -

28. All comments will be placed in the Commission's public files and may be viewed, 

printed, or downloaded remotely as described in the Document Availability section 

below. Commenters on this proposal are not required to serve copies of their comments 

on other commenters.

VII. Document Availability

29. In addition to publishing the full text of this document in the Federal Register, the 

Commission provides all interested persons an opportunity to view and/or print the 

contents of this document via the Internet through the Commission's Home Page 

(http://www.ferc.gov) and in the Commission's Public Reference Room during normal 

business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, 

Washington DC 20426.

30. From the Commission’s Home Page on the Internet, this information is available 

on eLibrary. The full text of this document is available on eLibrary in PDF and 

Microsoft Word format for viewing, printing, and/or downloading. To access this 

document in eLibrary, type the docket number excluding the last three digits of this 

document in the docket number field.

31. User assistance is available for eLibrary and the Commission’s website during 

normal business hours from the Commission’s Online Support at 202-502-6652 (toll free 

at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference 

Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room 

at public.referenceroom@ferc.gov.
Docket No. RM16-3-000 - 20 -

List of subjects in 18 CFR Part 35 

Electric power rates; Electric utilities; Reporting and record-keeping requirements.

By direction of the Commission.

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.
Docket No. RM16-3-000 - 21 -

In consideration of the foregoing, the Commission proposes to amend Chapter I, Title 18, 

Code of Federal Regulations, to read as follows:

Part 35 – FILING OF RATE SCHEDULES AND TARIFFS

1. The authority citation for Part 35 continues to read as follows:

Authority: 16 U.S.C. 791a-825r; 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 

7101-7152.

2. Amend § 35.37 to revise paragraph (a)(2) to read as follows:

§ 35.37 Market power analysis required.

(a)(1) * * *

(2) When submitting a market power analysis, whether as part of an initial 

application or an update, a Seller must include a description of its ownership structure 

that identifies all ultimate affiliate owner(s), i.e., the furthest upstream affiliate(s) in the

ownership chain. A Seller must also identify all affiliate owners that have a franchised 

service area or market-based rate authority, and all affiliate owners that directly own or 

control: generation; transmission; intrastate natural gas transportation, storage or 

distribution facilities; physical coal supply sources or ownership of or control over who 

may access transportation of coal supplies. The term “affiliate owner” means any owner 

of the Seller that is an affiliate of the Seller as defined in § 35.36(a)(9). The Seller must 

also provide an appendix of assets in the form provided in Appendix B of this subpart and 

an organizational chart. The organizational chart must depict the Seller’s current 

corporate structure indicating all affiliates.

* * * * *
Docket No. RM16-3-000 - 22 -

3. Amend § 35.42 to revise paragraph (a)(2)(iv) and to add paragraph (a)(2)(v) 

to read as follows:

§ 35.42 Change in status reporting requirement.

(a) * * *

(2) * * *

(iv) Has a franchised service area; or

(v) Is an ultimate affiliate owner, defined as the furthest upstream affiliate(s) in

the ownership chain.

* * * * *