[Federal Register Volume 77, Number 88 (Monday, May 7, 2012)]
[Rules and Regulations]
[Pages 26674-26686]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-9847]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[Docket No. RM11-17-000; Order No. 760]


Enhancement of Electricity Market Surveillance and Analysis 
Through Ongoing Electronic Delivery of Data From Regional Transmission 
Organizations and Independent System Operators

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: In this final rule, the Federal Energy Regulatory Commission 
(Commission) is amending its regulations to require each regional 
transmission organization (RTO) and independent system operator (ISO) 
to electronically deliver to the Commission, on an ongoing basis, data 
related to the markets that it administers. Specifically, the 
Commission is amending its regulations to establish ongoing electronic 
delivery of data relating to physical and virtual offers and bids, 
market awards, resource outputs, marginal cost estimates, shift 
factors, financial transmission rights, internal bilateral contracts, 
uplift, and interchange pricing. Such data will facilitate the 
Commission's development and evaluation of its policies and regulations 
and will enhance Commission efforts to detect anti-competitive or 
manipulative behavior, or ineffective market rules, thereby helping to 
ensure just and reasonable rates.

DATES: Effective Date: This rule will become effective July 6, 2012.

FOR FURTHER INFORMATION CONTACT:

William Sauer (Technical Information), Office of Enforcement, Federal 
Energy Regulatory Commission, 888 First Street NE., Washington, DC 
20426, (202) 502-6639, <a href="/cdn-cgi/l/email-protection#8ff8e6e3e3e6eee2a1fceefaeafdcfe9eafdeca1e8e0f9"><span class="__cf_email__" data-cfemail="2a5d434646434b4704594b5f4f586a4c4f5849044d455c">[email protected]</span></a>.
Christopher Daignault (Legal Information), Office of the General 
Counsel, Federal Energy Regulatory Commission, 888 First Street NE., 
Washington, DC 20426, (202) 502-8286, <a href="/cdn-cgi/l/email-protection#94f7fce6fde7e0fbe4fcf1e6baf0f5fdf3faf5e1f8e0d4f2f1e6f7baf3fbe2"><span class="__cf_email__" data-cfemail="2f4c475d465c5b405f474a5d014b4e4648414e5a435b6f494a5d4c01484059">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Table of Contents

 
                                                               Paragraph
                                                                 Nos.
 
I. Introduction.............................................           1
II. Background..............................................           2
III. Discussion.............................................           8
    A. Commission Authority and the Need for Market Data....           8
    B. Duplicative Requirements.............................          20
    C. Confidentiality of Data..............................          30
    D. Data Formatting......................................          37
    E. Web-Based Delivery...................................          45
    F. Data Requested.......................................          49
    G. Implementation Timeline and Phasing..................          64
    H. Ongoing Electronic Delivery..........................          74
    I. Future Specifications and Modifications of the Data            80
     and the Process for Delivery...........................
    J. Technical Conference.................................          84
IV. Information Collection Statement........................          86
V. Environmental Analysis...................................          96
VI. Regulatory Flexibility Act..............................          97
VII. Document Availability..................................         105
VIII. Effective Date and Congressional Notification.........         108
 

139 FERC ] 61,053
Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, 
John R. Norris, and Cheryl A. LaFleur.

Final Rule

Issued April 19, 2012

I. Introduction

    1. In this final rule, the Federal Energy Regulatory Commission 
(Commission) is revising its regulations to require each regional 
transmission organization (RTO) and independent system operator (ISO) 
to electronically deliver to the Commission, on an ongoing basis, data 
related to the markets that it administers. The Commission, acting 
pursuant to sections 301(b) and 307(a) of the Federal Power Act 
(FPA),\1\ will amend its regulations to establish ongoing electronic 
delivery of data relating to physical and virtual offers and bids, 
market awards, resource outputs, marginal cost estimates, shift 
factors, financial transmission rights (FTR), internal bilateral 
contracts, uplift, and interchange pricing. Such data will facilitate 
the Commission's

[[Page 26675]]

development and evaluation of its policies and regulations and will 
enhance Commission efforts to detect anti-competitive or manipulative 
behavior, or ineffective market rules, thereby helping to ensure just 
and reasonable rates.
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    \1\ 16 U.S.C. 825(b), 825f(a).
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II. Background

    2. Wholesale electricity markets have changed dramatically in 
recent years: \2\ From an industry characterized by self-sufficient, 
vertically integrated utilities, where most utilities operated their 
own generation, transmission, and distribution facilities, to an 
industry that utilizes market-based rates and ``open access'' to 
transmission systems. The 1980s and early 1990s experienced an 
increased adoption of market-based ratemaking and wholesale power sales 
competition to promote efficiency and to lower wholesale power 
prices.\3\ Further, the Commission found that the availability of 
transmission service can enhance competition in power markets, by 
increasing power supply options of buyers and power sales options of 
sellers, and can lead to lower rates for consumers.\4\
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    \2\ A more in-depth discussion of developments in wholesale 
electricity markets--which no commenter disputed--is provided in the 
Notice of Proposed Rulemaking (NOPR), which can be found at 
Enhancement of Electricity Market Surveillance and Analysis through 
Ongoing Electronic Delivery of Data from Regional Transmission 
Organizations and Independent System Operators, Notice of Proposed 
Rulemaking, 76 FR 66211 (Oct. 26, 2011), FERC Stats. & Regs. ] 
32,681 (2011).
    \3\  See, e.g., Louisville Gas & Elec. Co., 62 FERC ] 61,016, at 
61,143 & n.16, 61,149 (1993) (accepting non-traditional, market-
based rates as consistent with primary regulatory goal of ensuring 
lowest reasonable cost energy to consumers, provided service is 
reliable and the seller demonstrates a lack of market power); Pac. 
Gas & Elec. Co., 38 FERC ] 61,242, at 61,790 (1987) (accepting 
proposed competitive rates because ``competition * * * encourages 
utilities to make efficient decisions with a minimum of regulatory 
intervention [and, u]ltimately, consumers should benefit from lower 
prices as competition improves efficiency.''), modified on other 
grounds, 47 FERC ] 61,121 (1989), modified, 50 FERC ] 61,339 (1990), 
modified sub nom. W. Sys. Power Pool, 55 FERC ] 61,099, at 61,319 
(addressing applicant's failure to eliminate anticompetitive effects 
by mitigating market power), granting stay, 55 FERC ] 61,154, reh'g 
granted in part, 55 FERC ] 61,495 (1991), modified, 59 FERC ] 61,249 
(1992); Pub. Serv. Co. of N.M., 25 FERC ] 61,469, at 62,038 (1983) 
(averring that ``competition penalizes a seller that is inefficient 
or has an unreasonable pricing strategy[; consequently,] consumers * 
* * benefit because the improvements in efficiency lead to lower 
prices.''); see also Heartland Energy Servs., Inc., 68 FERC ] 61,223 
(1994) (reviewing early Commission decisions granting market-based 
rate authority).
    \4\ Fla. Mun. Power Agency v. Fla. Power & Light Co., 65 FERC ] 
61,125, at ] 61,615, reh'g dismissed, 65 FERC ] 61,372 (1993), final 
order, 67 FERC ] 61,167 (1994), order on reh'g, 74 FERC ] 61,006 
(1996).
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    3. By the mid-1990s, the Commission concluded that, beyond the 
industry's voluntary efforts, additional measures were needed to 
address undue discrimination in transmission access. Accordingly, the 
Commission issued Order Nos. 888 \5\ and 889,\6\ requiring ``open 
access'' transmission service. The Commission explained that such open 
access would ``remove impediments to competition in the wholesale power 
marketplace and * * * bring more efficient, lower cost power to the 
Nation's electricity customers.'' \7\ Subsequently, the Commission 
issued Order No. 890 \8\ to further remedy undue discrimination and 
thereby remove barriers to competition.
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    \5\ Promoting Wholesale Competition Through Open Access Non-
Discriminatory Transmission Services by Public Utilities; Recovery 
of Stranded Costs by Public Utilities and Transmitting Utilities, 
Order No. 888, FERC Stats. & Regs. ] 31,036 (1996), order on reh'g, 
Order No. 888-A, FERC Stats. & Regs. ] 31,048, order on reh'g, Order 
No. 888-B, 81 FERC ] 61,248 (1997), order on reh'g, Order No. 888-C, 
82 FERC ] 61,046 (1998), aff'd in relevant part sub nom. 
Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. 
Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).
    \6\ Open Access Same-Time Information System and Standards of 
Conduct, Order No. 889, FERC Stats. & Regs. ] 31,035 (1996), order 
on reh'g, Order No. 889-A, FERC Stats & Regs. ] 31,049, reh'g 
denied, Order No. 889-B, 81 FERC ] 61,253 (1997).
    \7\ Order No. 888, FERC Stats. & Regs. ] 31,036 at 31,634.
    \8\ Preventing Undue Discrimination and Preference in 
Transmission Service, Order No. 890, FERC Stats. & Regs. ] 31,241, 
order on reh'g, Order No. 890-A, FERC Stats. & Regs. ] 31,261 
(2007), order on reh'g, Order No. 890-B, 123 FERC ] 61,299 (2008), 
order on reh'g, Order No. 890-C, 126 FERC ] 61,228 (2009), order on 
clarification, Order No. 890-D, 129 FERC ] 61,126 (2009).
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    4. In addition to addressing undue discrimination in transmission 
access, Order No. 888 encouraged the formation of ISOs, reasoning that 
``ISOs have great potential to assist us and the industry to help 
provide regional efficiencies, to facilitate economically efficient 
pricing, and, especially in the context of power pools, to remedy undue 
discrimination and mitigate market power.'' \9\ To date, the Commission 
has approved six RTOs and ISOs: PJM Interconnection, L.L.C. (PJM); New 
York Independent System Operator, Inc. (NYISO); Midwest Independent 
Transmission System Operator, Inc. (MISO); ISO New England Inc. (ISO-
NE); California Independent System Operator Corporation (CAISO); and 
Southwest Power Pool, Inc. (SPP).
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    \9\ Order No. 888, FERC Stats. & Regs. ] 31,036 at 31,652; see 
also id. at 31,730-32.
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    5. Recognizing the importance of information relating to market 
trading and market oversight, the Commission issued Order No. 2001 \10\ 
and Order No. 697,\11\ establishing reporting requirements for entities 
selling under market-based rates. The information solicited by these 
orders has helped foster appropriate oversight of developing 
electricity markets, for ``[i]nformation is the key to a viable 
electricity market and to preventing market manipulation.'' \12\ In 
addition, the Energy Policy Act of 2005 (EPAct 2005) \13\ gave the 
Commission expanded authority to address market manipulation,\14\ 
including the ability to assess increased civil penalties.\15\ EPAct 
2005 also provided increased criminal penalties.\16\
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    \10\ Revised Public Utility Filing Requirements, Order No. 2001, 
FERC Stats. & Regs. ] 31,127, reh'g denied, Order No. 2001-A, 100 
FERC ] 61,074, reh'g denied, Order No. 2001-B, 100 FERC ] 61,342, 
order directing filing, Order No. 2001-C, 101 FERC ] 61,314 (2002), 
order directing filing, Order No. 2001-D, 102 FERC ] 61,334, order 
refining filing requirements, Order No. 2001-E, 105 FERC ] 61,352 
(2003), order on clarification, Order No. 2001-F, 106 FERC ] 61,060 
(2004), order revising filing requirements, Order No. 2001-G, 120 
FERC ] 61,270, order on reh'g and clarification, Order No. 2001-H, 
121 FERC ] 61,289 (2007), order revising filing requirements, Order 
No. 2001-I, 125 FERC ] 61,103 (2008).
    \11\ Market-Based Rates for Wholesale Sales of Electric Energy, 
Capacity and Ancillary Services by Public Utilities, Order No. 697, 
FERC Stats. & Regs. ] 31,252, clarified, 121 FERC ] 61,260 (2007), 
order on reh'g, Order No. 697-A, FERC Stats. & Regs. ] 31,268, Order 
No. 697-B, FERC Stats. & Regs. ] 31,285 (2008), order on reh'g, 
Order No. 697-C, FERC Stats. & Regs. ] 31,291 (2009), aff'd sub nom. 
Montana Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. Oct. 13, 
2011). In its decision upholding Order No. 697, the Ninth Circuit 
Court of Appeals noted that monitoring must be accompanied by 
enforcement because ``[w]ithout enforcement, there is little reason 
to believe that sellers will police themselves.'' Montana Consumer 
Counsel, 659 F.3d at 920 n.5.
    \12\ Charles H. Koch, Jr., Collaborative Governance: Lessons for 
Europe from U.S. Electricity Restructuring, 61 Admin. L. Rev. 71, 97 
(2009).
    \13\ Public Law 109-58, 119 Stat. 594 (2005).
    \14\ See, e.g., 16 U.S.C. 824v.
    \15\ See 16 U.S.C. 825o-1 (civil penalties).
    \16\ See 16 U.S.C. 825o (criminal penalties).
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    6. Independent market monitoring by RTO and ISO market monitoring 
units (MMU) is another important means to evaluate market developments 
and to identify and deter market abuses and manipulation. In Order No. 
2000, the Commission identified market monitoring as a basic function 
of an RTO.\17\ The Commission refined its approach to MMUs in a 2005 
policy statement and in Order No. 719.\18\ In the

[[Page 26676]]

2005 Policy Statement, the Commission outlined tasks for MMUs to 
perform in order to enhance the competitive structure of RTO and ISO 
markets.\19\ Subsequently, in Order No. 719, the Commission further 
clarified requirements for MMU functions, independence, and information 
sharing.\20\
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    \17\ Prior to this first generic consideration of MMUs in Order 
No. 2000, the Commission addressed market monitoring in connection 
with individual RTO and ISO proposals. See Pac. Gas & Elec. Co., 77 
FERC ] 61,265 (1996), order on reh'g, 81 FERC ] 61,122 (1997), order 
on clarification, 83 FERC ] 61,033 (1998) (requiring the ISO to file 
a detailed monitoring plan and listing minimum elements for such a 
plan); Pennsylvania-New Jersey-Maryland Interconnection, 81 FERC ] 
61,257 (1997) (requiring PJM Interconnection, L.L.C. to develop a 
market monitoring program to evaluate market power and market design 
flaws).
    \18\ Market Monitoring Units in Regional Transmission 
Organizations and Independent System Operators, 111 FERC ] 61,267 
(2005) (2005 Policy Statement); Wholesale Competition in Regions 
with Organized Electric Markets, Order No. 719, FERC Stats. & Regs. 
] 31,281 (2008), order on reh'g, Order No. 719-A, FERC Stats. & 
Regs. ] 31,292 (2009), order on reh'g, Order No. 719-B, 129 FERC ] 
61,252 (2009).
    \19\ 2005 Policy Statement, 111 FERC ] 61,267 at P 2.
    \20\ Specifically, MMU functions consist of evaluating existing 
and proposed market rules, tariff provisions, and market design 
elements and recommending changes, if applicable; reviewing and 
reporting on the performance of wholesale markets; and identifying 
and notifying the Commission of behavior that may require 
investigation. See Order No. 719, FERC Stats. & Regs. ] 31,281 at P 
354.
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    7. While MMUs perform a vital and necessary function in market 
oversight,\21\ they do not supplant the Commission's authority.\22\ 
Rather, MMUs are designed to provide the Commission with an additional 
means of detecting market power abuses, market design flaws, and 
opportunities for improvements in market efficiency.\23\
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    \21\ See, e.g., Order No. 719, FERC Stats. & Regs. ] 31,281 at P 
314.
    \22\ Order No. 2000, FERC Stats. & Regs. ] 31,089 at 31,156-57.
    \23\ Id.
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III. Discussion

A. Commission Authority and the Need for Market Data

1. NOPR
    8. The NOPR proposed to obtain ongoing delivery of RTO and ISO data 
pursuant to the Commission's authority under sections 301(b) and 307(a) 
of the FPA.\24\ Section 301(b) provides that the Commission shall at 
all times have access to, and the right to inspect and examine, all 
accounts and records of public utilities; section 307(a) provides that 
the Commission has authority to investigate any facts, conditions, 
practices, or matters it may deem necessary or proper to determine 
whether any person, electric utility, transmitting utility, or other 
entity may have violated or might violate the FPA or the Commission's 
regulations, or to aid in the enforcement of the FPA or the 
Commission's regulations, or to obtain information about wholesale 
electric energy sales or the transmission of electric energy in 
interstate commerce.
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    \24\ 16 U.S.C. 825(b); 16 U.S.C. 825f(a).
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    9. In the NOPR, the Commission sought comment on its proposal to 
revise its regulations to require each RTO and ISO to electronically 
deliver to the Commission, on an ongoing, non-public basis, data 
related to the markets that it administers; \25\ namely, data relating 
to physical and virtual offers and bids, market awards, resource 
outputs, marginal cost estimates, shift factors, FTRs, internal 
bilateral contracts, and interchange pricing.\26\ The Commission 
explained that ongoing electronic delivery of data from each RTO and 
ISO would facilitate the Commission's development and evaluation of its 
policies and regulations and would enhance Commission efforts to detect 
anti-competitive or manipulative behavior, or ineffective market rules, 
thereby helping to ensure just and reasonable rates.
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    \25\ Appendix A lists commenters and their abbreviated names as 
used here.
    \26\ See NOPR, FERC Stats. & Regs. ] 32,681 at P 36; see infra 
Sec.  III.F (Data Requested) for the data in this final rule to be 
provided.
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    10. The NOPR also emphasized efforts by the Commission to 
streamline the collection of data it already has the authority to 
request from public utilities. The Commission noted that it currently 
requests data from individual RTOs and ISOs on an ad hoc basis. The 
Commission averred that such ad hoc requests may require more 
Commission and RTO and ISO resources than the proposed ongoing 
electronic delivery of this data using an automated process. 
Accordingly, the Commission proposed to require an automated ongoing 
data delivery process, in part, to minimize any burden on RTOs and 
ISOs.
    11. In the NOPR, the Commission also addressed the relationship 
between the Commission and the MMUs. The Commission explained that the 
NOPR did not seek to displace or modify any of the existing market 
monitoring functions or any evaluations of market rules and designs 
performed by the MMUs; rather, the intent of the data collection is to 
help the Commission detect anti-competitive or manipulative behavior, 
inefficient market rules, and ensure just and reasonable rates.\27\ The 
Commission acknowledged that MMUs perform a vital and necessary 
function in market oversight.\28\ The Commission explained that, rather 
than supplant the Commission's authority,\29\ MMUs are designed to 
provide the Commission with an additional means of detecting market 
power abuses, market design flaws, and opportunities for improvements 
in market efficiency.\30\
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    \27\ See NOPR, FERC Stats. & Regs. ] 32,681 at PP 29 & 35.
    \28\ Id. PP 8-9 (citing Order No. 719, FERC Stats. & Regs. ] 
31,281 at P 314).
    \29\ Id. P 9 (citing Order No. 2000, FERC Stats. & Regs. ] 
31,089 at 31,156-57).
    \30\ Id.
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2. Comments
    12. Commenters do not dispute the Commission's authority under 
sections 301(b) and 307(a) of the FPA to require ongoing delivery of 
data from each RTO and ISO. As PA PUC stated, the proposal to expand 
the categories of information that RTOs and ISOs have to make available 
to the Commission is a logical and necessary extension of the 
Commission's existing authority under sections 301 and 307 of the 
FPA.\31\
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    \31\ PA PUC at 2.
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    13. Most commenters agree that ongoing delivery of data from each 
RTO and ISO would assist the Commission in carrying out its monitoring 
functions.\32\ For instance, Powerex states that:
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    \32\ SWP at 1-2; NYPSC at 3; PA PUC at 2-10; IRC at 1-2; Powerex 
Sec.  IV.A; APPA at 6; ISO-NE at 3; EEI/EPSA at 6; see also CAC/EPUC 
at 1 (expressing no protest against such delivery of data).

    The Commission correctly recognizes that as markets continue to 
evolve with increased levels of sophistication, the Commission must 
continue to evaluate the type of data necessary to ensure just and 
reasonable rates. Having ongoing, routine access to [RTO and ISO] 
data will provide greater transparency to the Commission on market 
activities and allow the Commission to perform systematic, 
comprehensive analysis to aid in monitoring market behavior and 
creating effective market rules and efficient market design.[\33\]
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    \33\ Powerex Sec.  IV.A. (footnote omitted).

    14. Several commenters agree that an ongoing, automated data 
delivery process may reduce administrative burdens on the RTOs and ISOs 
and the Commission when compared with ad hoc data requests.\34\ The PA 
PUC states that it does not believe the rules expanding RTO and ISO 
reporting requirements will unnecessarily burden these 
organizations.\35\
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    \34\ Id. Sec.  IV.A.; ISO-NE at 3.
    \35\ PA PUC at 4.
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    15. In their joint comments, EEI/EPSA state that they understand 
the Commission's desire to collect information to enhance its market 
monitoring and surveillance capabilities but question the need for 
ongoing data transfers to the Commission.\36\ Specifically, EEI/EPSA 
question why the Commission needs the additional information; whether 
the Commission is proposing to duplicate the function of RTO and ISO 
MMUs; the justification for imposing a burden on RTOs and ISOs and 
market participants; and why the Commission is collecting more 
information than what is contained in the Electric Quarterly Reports 
(EQR).\37\
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    \36\ EEI/EPSA at 6.
    \37\ Id.

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[[Page 26677]]

3. Commission Determination
    16. The Commission concludes that requiring each RTO and ISO to 
electronically deliver to the Commission on an ongoing, non-public 
basis, data related to the markets that each administers will help the 
Commission to carry out its statutory responsibilities, as explained 
below. The Commission finds that the revisions are consistent with the 
Commission's authority under sections 301(b) and 307(a) of the FPA. In 
addition, these reforms are expected to reduce administrative burdens 
on the RTOs and ISOs.
    17. EEI/EPSA's joint comments touch on a range of issues regarding 
the ongoing delivery of data from the RTOs and ISOs. Specifically, they 
ask why the Commission needs the specified data and question whether 
such reporting will result in duplicative market monitoring. These 
datasets are necessary to the Commission's better ensuring that 
Commission jurisdictional rates are just and reasonable.\38\ Ongoing 
electronic delivery of these particular datasets will help the 
Commission more effectively and accurately, and thus more efficiently, 
monitor and evaluate the activity in RTO and ISO markets. Such data 
will permit the Commission to improve its screening of participants' 
market activity for inappropriate conduct, making such conduct more 
difficult to mask.\39\ In addition, the ongoing delivery of this data 
will provide a better picture of market activity and lessen the 
possibility that market monitoring and surveillance screens will result 
in error. Thus, electronic delivery of this data will permit the 
Commission to meet its statutory obligations in a more efficient 
manner.
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    \38\ See 16 U.S.C 824d, 824e.
    \39\ See NOPR, FERC Stats. & Regs. ] 32,681 at PP 30-31.
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    18. The Commission's oversight capabilities, and associated data 
delivery requirements, must keep pace with market developments and 
evolve along with the markets. A part of the Commission's oversight of 
the wholesale electricity markets is the evaluation of existing market 
designs and the effectiveness of current market rules. The ongoing, 
electronic delivery of specific datasets will enable the Commission to 
more effectively carry out this function. This data will provide the 
Commission with empirical information that will augment its ability to 
assess the effectiveness of Commission-approved market rules and 
provide better tools to monitor the efficiency of existing market 
designs in producing just and reasonable rates. Thus, the ongoing 
delivery of the data sought in this final rule will inform the 
Commission's continuing evaluation of market rules, regulations, and 
the development of its policies.
    19. Requiring this data does not displace the MMUs' existing 
efforts to evaluate market rules and market designs or modify any of 
their market monitoring functions. Nor does the Commission's analysis 
and monitoring efforts using the data specified in this final rule 
duplicate the MMUs' existing efforts. For example, because of the 
Commission's ability to look across all RTO and ISO markets, the 
Commission is in a unique position to perform cross-market analysis. 
This cross-market analysis will enhance the Commission's ongoing 
efforts to improve surveillance and monitoring of the markets and 
assess the performance of different market designs and rules.\40\
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    \40\ Id. P 29.
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B. Duplicative Requirements

1. NOPR
    20. The NOPR stated that the electronic delivery of the types of 
data proposed herein will help to maintain the Commission's access to 
RTO and ISO data on par with the types and levels of activity in those 
markets and will help to ensure that rates are just and reasonable.\41\
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    \41\ Id. P 13.
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2. Comments
    21. Several commenters urge the Commission to avoid duplicative 
reporting, given other recent data collection requirements.\42\
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    \42\ SWP at 2 (referring to EQR requirements); EEI/EPSA at 8-9 
(same); see also Electricity market Transparency Provisions of 
Section 220 of the Federal Power Act, FERC Stats & Regs., Proposed 
Rules ] 32,676 (Apr. 21, 2011).
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    22. Consistent with the mandate to avoid duplicative or 
unnecessarily burdensome regulation,\43\ SWP urges the Commission to 
consider the impact of this additional data requirement. SWP posits 
that the EQR reporting requirements in Docket No. RM10-12 are 
duplicative and, in fact, the EQR data come from transactions that are 
already captured by other government reports, RTO and ISO reports, and 
reports by non-jurisdictional entities' public utility 
counterparties.\44\ SWP states that the instant proposal makes the EQR 
reporting requirements redundant and unwarranted, given the 
Commission's statutory and executive mandates for streamlining 
regulation, reducing regulatory burdens, and eliminating duplicative 
reporting requirements.\45\
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    \43\ See Plan for Retrospective Analysis of Existing Rules, 
Docket No. AD12-6 (Nov. 8, 2011) (``The Commission voluntarily and 
routinely, albeit informally, reviews its regulations to ensure that 
they achieve their intended purpose and do not impose undue burdens 
on regulated entities or unnecessary costs on those entities or 
their customers. In addition, the Commission considers the spirit of 
these Executive Orders [mandating regulatory streamlining and 
avoidance of unnecessary regulatory burdens] when evaluating 
possible new regulations.''), available at http://www.ferc.gov/legal/maj-ord-reg/retro-analysis/ferc-eo-13579.pdf.
    \44\ SWP at 2.
    \45\ Id.
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    23. In their joint comments, EEI/EPSA encourage the Commission to 
require RTOs and ISOs to report EQR information for sales conducted 
within their markets, whether or not the RTOs and ISOs are actual 
counterparties to the transactions.\46\ They also suggest that the 
Commission hold RTOs and ISOs responsible for the accuracy of the 
information they provide, to avoid duplicative burden on market 
participants.\47\ Consequently, EEI/EPSA suggest that the Commission 
explicitly clarify that market participants are no longer required to 
report in their own EQRs the information that RTOs and ISOs are 
required to report under the final rule, nor to report in other 
Commission forms information that will be provided by RTOs and ISOs 
under the final rule.\48\
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    \46\ EEI/EPSA at 6.
    \47\ Id.
    \48\ Id. at 8. Additionally, EEI/EPSA suggest that there would 
be significant benefits associated with their proposal: if properly 
implemented, these changes would considerably reduce the burden for 
EQR filers and other RTOs and ISOs; would significantly reduce the 
size of most EQR Filings, largely resolving size-related upload 
problems that have occurred; a Commission EQR database consisting of 
only bilateral data would be much smaller and more manageable (the 
Commission could maintain a separate database of RTO and ISO market 
transactions or rely on information posted on RTO and ISO Web sites 
or servers); and, RTO and ISO sales data would be consistently, 
completely, and correctly reported. EEI/EPSA 8-9.
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3. Commission Determination
    24. Despite some similarities in data provided by market 
participants in their EQRs, we find that the reporting requirements 
placed on RTOs and ISOs in this final rule facilitate, rather than 
compromise, the goals of streamlining regulation, reducing regulatory 
burdens, or eliminating duplicative reporting requirements.
    25. First, the nature of the data, the frequency of its collection, 
and the data format differ between the data submitted in EQRs and the 
data sought here. Currently, market participants provide contractual 
and transactional data in their EQRs related to their jurisdictional 
sales and transmission service in a specified format that is

[[Page 26678]]

made available to the public. The Commission established the EQR 
reporting requirements in Order No. 2001 \49\ to help ensure the 
collection of information needed to perform the Commission's regulatory 
responsibilities over sales and transmission service, while making 
available data useful to the public and allowing public utilities to 
better fulfill their responsibility under FPA section 205(c) to have 
rates on file in a convenient form and place.\50\ By contrast, this 
final rule initiates a process for collecting non-public data from the 
RTOs and ISOs relating to market participants' jurisdictional service 
in the RTO and ISO markets, which is more granular and diverse. RTOs 
and ISOs will deliver this data, pursuant to the Commission's authority 
under sections 301(b) and 307(a) of the FPA, in a format consistent 
with how the data is currently collected in each RTO and ISO 
system,\51\ on an ongoing (rather than quarterly) basis to help the 
Commission stay informed of market developments and to help ensure just 
and reasonable rates through better market surveillance and evaluation 
of policies and regulations.
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    \49\ Order No. 2001, FERC Stats. & Regs. ] 31,127. In a recent 
Notice of Proposed Rulemaking, the Commission proposed to amend its 
EQR regulations to require market participants that are excluded 
from the Commission's jurisdiction under FPA section 205 and have 
more than a de minimis market presence to file EQRs with the 
Commission. See Electricity Market Transparency Provisions of 
Section 220 of the Federal Power Act, Notice of Proposed Rulemaking, 
FERC Stats. & Regs. ] 32,676 (2011).
    \50\ Order No. 2001, FERC Stats. & Regs. 31,127 at P 31.
    \51\ See infra Sec.  III.D (Data Formatting).
---------------------------------------------------------------------------

    26. Second, this final rule streamlines the process through which 
RTOs and ISOs provide data to the Commission by requiring ongoing 
delivery of such data, instead of relying on periodic, ad hoc requests.
    27. Third, no additional regulatory burden is placed on market 
participants through these requirements, as the data sought is already 
collected by the RTOs and ISOs and will not be separately collected by 
the Commission from individual market participants.
    28. Accordingly, we find that RTOs' and ISOs' reporting 
requirements under this final rule do not duplicate market 
participants' EQR reporting requirements. Based on this finding, we 
will continue to require individual market participants to submit their 
EQRs.
    29. With respect to certain commenters' concern about the burden on 
market participants of filing information in EQRs about sales in RTO 
and ISO markets, we note that RTOs and ISOs may file EQRs on behalf of 
their members or participants if authorized to do so as their 
agent.\52\ We also note that the Commission has worked with numerous 
RTOs and ISOs to produce settlement reports in a format that allows 
easy importation into the EQR software.
---------------------------------------------------------------------------

    \52\ See Order No. 2001, FERC Stats. & Regs. ] 31,127 at P 336; 
Order No. 2001-E, 105 FERC ] 61,352 at P 12.
---------------------------------------------------------------------------

C. Confidentiality of Data

1. NOPR
    30. In the NOPR, the Commission stated that much of the information 
it will receive is, by its nature, commercially sensitive.\53\ 
Disclosure of such information could result in competitive harm to 
market participants and the market as a whole.\54\ Accordingly, the 
Commission proposed that the data sought would not be made publicly 
available, except as may be directed by the Commission or a court with 
appropriate jurisdiction.\55\
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    \53\ In the past, the Commission has granted requests for 
privileged or confidential treatment of similar non-public data. 
See, e.g., N.Y. Indep. Sys. Operator, Inc., 131 FERC ] 61,169, at P 
15 (2010) (granting such treatment for data relating to specific 
generator or other equipment details, transmission system 
information, bidding strategies, generator reference levels, 
generator costs, guarantee payments, and the associated relevant 
time periods); see also S. Cal. Edison Co., 135 FERC ] 61,201, at P 
20 (2011); Hydrogen Energy Cal. LLC, 135 FERC ] 61,068, at P 25 
(2011); N.Y. Indep. Sys. Operator, Inc., 130 FERC ] 61,029, at P 3 
(2010).
    \54\ The Freedom of Information Act (FOIA) allows persons to 
file requests to obtain data from the Commission. FOIA exemption 4 
protects ``trade secrets and commercial or financial information 
obtained from a person [that is] privileged or confidential.'' 5 
U.S.C. 552(b)(4) (2006), amended by OPEN Government Act of 2007, 
Pub. L. 110-175, 121 Stat. 2524 (2007); accord 18 CFR 388.107(d). We 
would expect that commercially-sensitive data, like that described 
in the NOPR, which satisfy the requirements of exemption 4 would be 
protected from disclosure.
    \55\ Section 301(b) of the FPA, 16 U.S.C. 825(b), provides that 
no member, officer, or employee of the Commission may divulge any 
fact or information that may come to his knowledge during the course 
of examination of books or other accounts, except as may be directed 
by the Commission or by a court.
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    31. The Commission stated in the NOPR that it will make publicly 
available the analysis derived from data that the Commission uses, for 
example, to support a proposed market rule change, except that the 
Commission will ensure that confidential information will remain non-
public. The Commission also noted that it may direct its staff to issue 
a public report outside of a rulemaking proceeding with similar 
protections for confidential or otherwise protected information.
2. Comments
    32. Several commenters note that some of the data the Commission is 
proposing to receive is commercially sensitive and should be protected 
from release.\56\ Commenters also argue that it would be beneficial to 
publicly release some of the information the Commission is proposing to 
receive.\57\ APPA notes, for instance, that the Commission could take a 
strong first step in improving market transparency by requiring RTOs 
and ISOs to publish bid information, including identification of 
bidders, within a reasonable timeframe.\58\ Powerex notes that while 
some of the data, if released, would result in competitive harm, much 
of the information the Commission is seeking from the RTOs and ISOs is 
already publicly available. As such, Powerex argues that public release 
of certain data would support better investment decisions and better 
responses to price signals, and would create more confidence in the 
functioning of markets, which in turn would benefit the whole market 
and end-use consumers because better decisions result in lower risk 
premiums and lower costs for consumers.\59\
---------------------------------------------------------------------------

    \56\ See CAC/EPUC at 1-2; EEI/EPSA at 10; Powerex Sec.  IV.C.
    \57\ See Powerex Sec.  IV.C; APPA at 4.
    \58\ APPA at 4.
    \59\ Powerex Sec.  IV.C. Powerex notes that the following data 
should be made publicly available: (1) Market awards (both volumes 
and prices including all Exceptional and Out-of-market dispatches); 
(2) resource outputs (including actual delivery to/from interties; 
(3) Financial Transmission Rights, including Congestion Revenue 
Rights; (4) uplift costs per megawatt; and (5) make-whole and bid 
cost recovery payments. Powerex Sec.  IV.C.
---------------------------------------------------------------------------

    33. In their joint comments, EEI/EPSA raise concerns about the 
security of the data transferred to the Commission and the potential 
for information retained by the Commission to be discoverable under 
FOIA.\60\ Specifically, EEI/EPSA state they are concerned about the 
Commission's ability to honor its commitment to keep the information 
non-public under the Commission's current rules and regulations. EEI/
EPSA state that, prior to requiring RTOs and ISOs to report this 
information, the Commission should adopt rules that would ensure that 
this information is kept confidential and not disclosed.\61\

[[Page 26679]]

EEI/EPSA also suggest that the Commission could allow RTOs and ISOs to 
post any non-confidential information on their Web sites or servers 
rather than having to deliver it to the Commission.\62\
---------------------------------------------------------------------------

    \60\ See EEI/EPSA at 9-11.
    \61\ EEI/EPSA at 11. EEI/EPSA's concern is that ``the Commission 
may not be able to maintain the confidentiality of the information 
under FOIA. As a practical matter it can be difficult for any agency 
to ensure such confidentiality under FOIA with absolute certainty. 
As such, EEI and EPSA request that the Commission avoid collecting 
sensitive information, require any such information that is reported 
to be aggregated to minimize disclosure concerns, and ensure the 
appropriate rules and regulations are enacted prior to requiring the 
reporting of confidential information.''
    Id.
    \62\ EEI/EPSA at 4.
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3. Commission Determination
    34. As the Commission stated in the NOPR, much of the information 
that the Commission expects to receive in this proposal is, by its 
nature, commercially sensitive.\63\ While one may file a request to 
obtain data from the Commission,\64\ FOIA exemption 4 protects ``trade 
secrets and commercial or financial information obtained from a person 
[that is] privileged or confidential.'' \65\ Accordingly, although the 
Commission cannot foreclose requests of information relating to ongoing 
electronic submissions of non-public data, we expect that all such data 
found to satisfy the requirements of exemption 4 would be protected 
from disclosure.
---------------------------------------------------------------------------

    \63\ See NOPR, FERC Stats. & Regs. ] 32,681 at P 45.
    \64\ See id. P 45 & n.48. We note that RTOs and ISOs also can 
specifically request privileged and confidential treatment by 
marking their documentation that accompanies the data delivery (see 
infra P 43 & n.75) pursuant to 5 U.S.C. 552, 18 CFR 1b.9, 1b.20, and 
388.112.
    \65\ 5 U.S.C. 552(b)(4) (2006), amended by OPEN Government Act 
of 2007, Pub. L. 110-175, 121 Stat. 2524 (2007); accord 18 CFR 
388.107(d).
---------------------------------------------------------------------------

    35. The Commission may, of course, make publicly available analyses 
derived from data that the Commission uses, but insofar as the law 
allows, the Commission will ensure that confidential information will 
remain non-public. The Commission's doing these kinds of analyses and 
making them public is appropriate. Such analyses may be, among other 
things, in the form of a staff white paper or the initiation of a 
rulemaking proceeding, both of which are equally appropriate uses of 
the information collected.
    36. The Commission recognizes that public release of certain data 
may support better investment decisions and better responses to price 
signals, as Powerex maintains, and also that portions of the 
information the Commission is seeking from the RTOs and ISOs already 
may be publicly available. However, the datasets the Commission will 
receive pursuant to this final rule are expected to contain in large 
measure the type of information covered under FOIA exemption 4, and 
would remain non-public.

D. Data Formatting

1. NOPR
    37. The Commission proposed to require that any data electronically 
delivered to the Commission be in an XML format that is consistent for 
all RTOs and ISOs. The Commission stated that it was not proposing that 
each RTO and ISO materially modify the data prior to electronic 
delivery. The Commission sought comment on data formatting, noting that 
XML may not be the preferred format to use when electronically 
delivering RTO and ISO data.\66\
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    \66\ See NOPR, FERC Stats. & Regs. ] 32,681 at P 42.
---------------------------------------------------------------------------

2. Comments
    38. Commenters generally support allowing each RTO and ISO to 
provide data in its current format with minimal modification, rather 
than in a format consistent for all RTOs and ISOs.\67\ ISO-NE contends 
that a common format would require a significantly longer 
implementation timeframe.\68\ NYPSC posits that unnecessary expenses 
due to converting the format (to one not currently used by the RTOs and 
ISOs) could be costly, leading to a negative impact on ratepayers.\69\
---------------------------------------------------------------------------

    \67\ NYPSC at 4; IRC at 2-4; ISO-NE at 3; EEI/EPSA at 4.
    \68\ ISO-NE at 3
    \69\ NYPSC at 4.
---------------------------------------------------------------------------

    39. The IRC states that regional differences and the individual 
market designs of each RTO and ISO may lead to discrepancies when 
attempting to reconcile these different market rules and products into 
XML or another common format.\70\ The IRC proposes that each RTO and 
ISO electronically deliver the requested data in a format that mirrors 
the format in each one's system, with minimal transformation. The IRC 
further proposes that the data would be delivered to the Commission in 
a format acceptable to the Commission and that a guide explaining the 
data format and presentation would be provided.\71\ Specifically, the 
IRC proposes to add the italicized language below to the text proposed 
in the NOPR:
---------------------------------------------------------------------------

    \70\ IRC at 3.
    \71\ Id. at 4.

Each Commission-approved regional transmission organization and 
independent system operator must electronically deliver to the 
Commission, on an ongoing basis and in a form and manner consistent 
with its own collection of data and in a form and manner acceptable 
to the Commission, data related to the markets that the regional 
transmission organizations or independent system operators 
---------------------------------------------------------------------------
administers.

3. Commission Determination
    40. Given the various data collection and storage methods used by 
RTOs and ISOs, we will allow data to be electronically delivered to the 
Commission in a format consistent with how the data is collected in 
each RTO and ISO system.\72\ We agree with commenters that requiring 
data delivery in a consistent format for all RTOs and ISOs likely would 
be more costly and may result in data that fails to accurately capture 
the nuances of each market. Accordingly, the Commission will include 
the IRC's proposed additions, reflected in the italicized language 
above, in the regulation adopted by this final rule.
---------------------------------------------------------------------------

    \72\ We consider format to include the structure of the data 
(i.e., the data tables, columns, rows, and fields), as well as 
details relating to the data specifications for each field (i.e., 
string, numeric, etc.).
---------------------------------------------------------------------------

    41. We recognize that the current data format and storage 
procedures used by each RTO and ISO may require that they make certain 
adjustments before the datasets are electronically delivered to the 
Commission, which are expected to be minimal. These adjustments, if 
necessary, will secure dependable, ongoing delivery of the data while 
preserving the individual character of each RTO's or ISO's datasets. 
For example, data the Commission is requesting may be stored by an RTO 
or ISO in a manner such that a particular dataset contains additional 
details that are unnecessary for Commission analysis. Similarly, an 
RTO's or ISO's reported times may be stored in various time zones, both 
within each RTO or ISO and across the RTOs and ISOs. Adjusting such 
data to either reduce the volume of information delivered to the 
Commission or to reflect a uniform time zone, inter alia, will improve 
the Commission's ability to understand and manage the data. Therefore, 
the Commission would expect that RTOs and ISOs will make certain 
minimal adjustments to the datasets from time to time, working with 
Commission staff.
    42. As part of the determination not to require a consistent format 
for all RTOs and ISOs, we will direct that such data be delivered in 
one of two file types; namely, Comma Separated Value (i.e., CSV) or Tab 
Delimited.\73\ These file types have been listed in order of Commission 
preference; they are commonly used file types and provide sufficient 
flexibility to allow for divergent formatting schemes among the RTOs 
and ISOs. Each RTO and ISO

[[Page 26680]]

must use the file type it selects on a consistent basis, that is, 
without altering the file type with each data transfer. Accordingly, we 
will not accept data delivered in XML, because its use may be more 
appropriate in situations where the formatting is consistent.\74\
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    \73\ RTOs and ISOs, working with Commission staff, may switch to 
one of the other two file types. Moreover, in the future another 
file type may be determined to be more practicable or desirable.
    \74\ As the IRC noted, XML may be appropriate when presenting 
data that is based on a common format (IRC at 3). The use of XML is 
unsuitable for this data collection when common formatting does not 
exist.
---------------------------------------------------------------------------

    43. Further, we agree with the IRC that documentation defining each 
field in the datasets provided by the RTOs and ISOs would assist the 
Commission in its analysis of the electronic data.\75\ Accordingly, we 
will require each RTO and ISO to provide such documentation, given that 
correctly interpreting and understanding the data is a prerequisite to 
any analytic effort. Moreover, the Commission directs that such 
documentation be provided initially no later than 30 days prior to the 
first day of the ongoing delivery for each dataset.
---------------------------------------------------------------------------

    \75\ We consider documentation defining each field to consist of 
a data dictionary, entity relationship model, and file transfer 
record layout. This documentation would provide details about data 
such as meaning, relationships to other data, origin, usage, and 
format, as well as details defining the method for identifying new 
record submissions and record corrections (i.e., an addition to, 
change in, or deletion of previously delivered data).
---------------------------------------------------------------------------

    44. Finally, to allow the Commission to stay abreast of any change 
in how data described in this final rule is collected, we direct each 
RTO and ISO to notify Commission staff in writing of any such change, 
90 days prior to such a change or as soon as practicable once such a 
change is known. Such a change may necessitate the submission of 
updated documentation. Notifications of forthcoming changes, and 
updated documentation when appropriate, will allow the Commission to 
anticipate and make necessary adjustments to its own management and 
storage of RTO and ISO data, especially given that the data will not be 
received in a single consistent format across the RTOs and ISOs.

E. Web-Based Delivery

1. NOPR
    45. Due to the commercially-sensitive nature of the requested 
market data, the Commission proposed that each RTO and ISO use a secure 
data delivery method to provide data to the Commission. Specifically, 
the Commission proposed that RTO and ISO market data be electronically 
delivered using the Secure File Transfer Protocol (SFTP) and that 
access to the server where the data is electronically delivered only be 
granted to each applicable RTO and ISO and to the Commission.
2. Comments
    46. ISO-NE and the IRC do not anticipate problems associated with 
using SFTP to transfer encrypted market data to the Commission; they 
expect this method to be straightforward.\76\ Both commenters state 
that the Commission should allow flexibility with respect to whether 
each RTO or ISO or the Commission hosts the exchange server.\77\ For 
this purpose, the IRC urges the Commission to define ``deliver'' in 
this context as either ``transmission to the Commission'' or as 
``making available to the Commission for retrieval.'' \78\ The IRC 
suggests that other delivery mechanisms may be more technically 
attractive and, if the Commission finds this to be the case, requests 
that the Commission accommodate the other delivery mechanisms that are 
acceptable.\79\ Finally, as noted above, in lieu of delivery to the 
Commission, EEI/EPSA suggest that the Commission could allow RTOs and 
ISOs to post any non-confidential information on their Web sites or 
servers.\80\ In the event the Commission requires data to be delivered, 
EEI/EPSA suggest that the data be aggregated such that any disclosure 
will not cause commercial impacts.\81\
---------------------------------------------------------------------------

    \76\ ISO-NE at 5-6; IRC at 4-5.
    \77\ ISO-NE at 5-6; IRC at 4-5.
    \78\ IRC at 5.
    \79\ Id. at 4.
    \80\ EEI/EPSA at 4.
    \81\ Id. at 10.
---------------------------------------------------------------------------

3. Commission Determination
    47. We adopt the proposal outlined in the NOPR which requires RTO 
and ISO market data to be electronically delivered using SFTP.\82\ 
Access to the server where the data is electronically delivered will 
only be granted to each applicable RTO and ISO and to the 
Commission.\83\ We define ``deliver'' in this final rule to mean 
``transmission to the Commission.''
---------------------------------------------------------------------------

    \82\ In the future, another delivery method may be determined to 
be more practicable or desirable.
    \83\ If the RTO or ISO elects to have the MMU deliver data to 
the Commission, the MMU also should be granted access to the server 
where data is delivered. See infra P 61.
---------------------------------------------------------------------------

    48. The Commission rejects EEI/EPSA's suggestions that the 
Commission allow RTOs and ISOs to post only non-confidential 
information on their Web sites or to require the delivery of aggregated 
data to satisfy the requirement for ongoing delivery to the Commission. 
Commission use of such postings of non-confidential information or 
delivery of aggregated information would do little to further the 
Commission's market surveillance and its evaluation of policies and 
regulations. And as discussed in greater detail above, data that is 
electronically delivered pursuant to this final rule likely would be 
considered non-public.\84\
---------------------------------------------------------------------------

    \84\ See supra Sec.  III.C. (Confidentiality of Data).
---------------------------------------------------------------------------

F. Data Requested

1. NOPR
    49. In the NOPR, the Commission proposed to require ongoing 
electronic delivery of the data (e.g., the information to be included 
in the datasets) described below:
    1. Supply offers and demand bids for energy and ancillary 
services--Data on supply offers and demand bids submitted to RTO and 
ISO markets. This dataset would include all offers and bids for energy 
and ancillary services. This dataset would also include offers and bids 
submitted for interchange transactions, as well as those submitted 
without economic consideration, i.e., self-schedules.
    2. Virtual offers and bids--Data on virtual supply offers and 
virtual demand bids submitted to RTO and ISO markets.
    3. Energy/ancillary service awards--Data on market awards for 
energy and ancillary services. This dataset would include the quantity 
and price of all market awards for energy and ancillary services. The 
dataset would also identify resources that are self-scheduled.
    4. Capacity market offers, designations, and prices--For RTOs and 
ISOs with centralized capacity markets, data on capacity offers as well 
as capacity market outcomes or designations. This data would include 
the identity of capacity resources, the amount of procured capacity, 
and the applicable capacity market price.
    5. Resource output--Data on resource output data used in market 
settlements. This dataset would include details used in market 
settlements, including RTO and ISO dispatch instructions (i.e., the 
output that a dispatched resource is expected to produce in real-time) 
for energy or ancillary services, or whether resources are operating at 
self-scheduled output levels, and measured output levels.
    6. Marginal cost estimates--Data on marginal cost estimates; such 
estimates are typically generated for the potential replacement of 
supply offers in market power mitigation procedures. This dataset would 
include all marginal cost estimates that have been developed, and

[[Page 26681]]

not just those estimates that were used to generate mitigated supply 
offers. The Commission is seeking only the resulting marginal cost 
estimates themselves, however, and not the inputs that allow for 
calculation of those estimates. Further, the Commission is not seeking 
other operating information regarding individual generators' actual 
costs, revenues, or profits.
    7. Day-ahead shift factors--Data on shift factors calculated for 
use in the day-ahead market. This would include generation shift 
factors, which are factors to be applied to a generator's expected 
change in output to determine the amount of flow contribution that that 
change in output will impose on an identified transmission facility or 
flowgate, and load shift factors, which are factors to be applied to a 
load's expected change in demand to determine the amount of flow 
contribution that that change in demand will impose on an identified 
transmission facility or flowgate. This dataset would not be limited to 
binding constraints, but should also include all shift factors 
calculated to address non-binding constraints.
    8. FTR data--Data on FTR transactions that may not be publicly 
posted in all RTO and ISO markets. Specifically, RTOs and ISOs must 
provide data detailing how all FTRs and allocated rights were acquired, 
either through RTO and ISO allocation or auction procedures; data 
detailing whether the acquired allocation positions were converted from 
positions that collect auction revenue into positions that collect 
congestion revenue; and data detailing secondary market transactions to 
the extent that they are available to the RTO and ISO.
    9. Internal Bilateral Contracts--Data on the settlement of internal 
bilateral contracts for energy.
    10. Pricing data for interchange transactions--Data on pricing 
information for scheduled interchanges including eTag IDs, when 
applicable, in addition to other interchange pricing details and 
transaction identification. Scheduled interchanges include any 
transaction between two or more Balancing Authority Areas.
    50. The Commission also proposed that descriptive information, such 
as market participant names, unique identifiers, pricing points, and 
other information that the Commission considers necessary and 
appropriate to understand and analyze the data described in the NOPR 
would be included in the delivery of these datasets. The Commission 
noted that much of the data discussed in the NOPR are already collected 
and stored by the RTOs and ISOs in order to administer their 
markets.\85\ And to the extent that an RTO or ISO does not already 
collect specific data, the Commission proposed not to require either 
the collection of such data from market participants or its electronic 
delivery to the Commission.
---------------------------------------------------------------------------

    \85\ NOPR, FERC Stats. & Regs. ] 32,681 at P 14.
---------------------------------------------------------------------------

    51. Finally, the Commission proposed to direct each RTO and ISO to 
submit a compliance filing within 45 days after the effective date of 
any final rule in this proceeding, amending its open access 
transmission tariff to reflect the requirement for the ongoing 
electronic delivery of data.
2. Comments
    52. Most commenters support the Commission's proposal to require 
each RTO and ISO to electronically deliver data described in the NOPR 
as a means to more effectively carry out Commission functions.\86\
---------------------------------------------------------------------------

    \86\ SWP at 1-2; NYPSC at 3; PA PUC at 2-10; IRC at 1-2; Powerex 
Sec.  IV.A.; APPA at 6; ISO-NE at 2-3.
---------------------------------------------------------------------------

    53. Several commenters encouraged the Commission to consider 
requesting additional data.\87\ For example, Powerex believes that the 
following data would aid the Commission in enhancing its market 
surveillance: \88\ (1) Market awards, both in terms of volumes and 
prices, including all exceptional and out-of-market dispatches; (2) 
uplift costs per megawatt; and (3) make-whole payments/bid costs 
recovery payments.
---------------------------------------------------------------------------

    \87\ Powerex Sec.  IV.B.; APPA at 4.
    \88\ Powerex contends that this data should be made publicly 
available in order to increase market transparency. Powerex Sec.  
IV.B., .C.; see also supra Sec.  III.C. (Confidentiality of Data).
---------------------------------------------------------------------------

    54. APPA considers it a substantial shortcoming in the Commission 
proposal to seek only estimated marginal cost data and not information 
regarding individual generators' actual costs, revenues, and 
profits.\89\ APPA argues that, without looking at the underlying 
generator-seller cost data, the Commission cannot ``determine whether 
the average prices charged by a seller are comparable to the average 
prices that would be charged in a competitive market where no sellers 
were able to exercise market power.'' \90\
---------------------------------------------------------------------------

    \89\ APPA at 4.
    \90\ Id. at 5-6 (quoting Lockyer ex rel State of California v. 
FERC, 383 F.3d 1006, 1012-13 (9th Cir. 2004), and Mont Consumer 
Counsel v. FERC, 659 F.3d 910, 919 (9th Cir. 2011)).
---------------------------------------------------------------------------

    55. Several commenters support the Commission's intent to require 
only data that is collected or stored by each RTO or ISO to be 
delivered to the Commission.\91\ In that vein, ISO-NE and the IRC state 
that, in certain cases, data requested in the NOPR is either not 
produced or retained by the RTO or ISO.\92\ The IRC notes that for some 
RTOs and ISOs, such as the MISO, the data may be developed by the 
MMU.\93\ In particular, the IRC notes that certain requested data 
serving as the basis for market power mitigation may be calculated by 
the MMU but not transmitted to the RTO or ISO and therefore cannot be 
supplied by the RTO or ISO. The IRC points out that, in other cases, 
certain inputs that are not critical to the clearing of the market 
routinely are not retained.\94\ Likewise, ISO-NE states that it does 
not retain either shift factors calculated to address non-binding 
constraints or data ``flags'' that identify which of the alternative 
market mitigation methods would be used to calculate a reference level 
at the segment level (as opposed to the block level).\95\ ISO-NE also 
states that it no longer administers a secondary FTR market, so it 
would not be in a position to deliver this data to the Commission.\96\
---------------------------------------------------------------------------

    \91\ PA PUC at 3; EEI/EPSA at 4.
    \92\ ISO-NE at 4; IRC at 5-6.
    \93\ IRC at 5.
    \94\ One example is preliminary entries of bids that are 
subsequently modified by market participants prior to the submission 
of a final bid and prior to the market close. IRC at 5.
    \95\ ISO-NE at 4.
    \96\ Id. at 4-5.
---------------------------------------------------------------------------

    56. In order to reflect situations where the Commission is 
requesting data that is either not produced or retained by the RTO or 
ISO, the IRC requests that the Commission clarify in the final rule 
that no RTO or ISO will be required to deliver such data.\97\ 
Specifically, the IRC requests that the Commission clarify that the 
data to be supplied is that which is used to settle or clear the 
relevant market and that the Commission need not be provided data--such 
as non-binding shift factors--that do not influence market outcomes. 
The IRC further requests that the Commission clarify that it is not 
directing the RTOs and ISOs to begin tracking incremental changes to 
the data that they do not currently track.\98\
---------------------------------------------------------------------------

    \97\ IRC at 6.
    \98\ Id.
---------------------------------------------------------------------------

3. Commission Determination
    57. The Commission will adopt the proposal in the NOPR to require 
ongoing electronic delivery of data related to physical and virtual 
offers and bids, market awards, resource outputs, marginal cost 
estimates, shift factors, FTRs, internal bilateral contracts, and 
interchange pricing. In addition, the Commission will require each RTO 
and ISO to provide data on uplift charges and credits. The Commission 
concludes that the data specified in this final rule will facilitate 
the Commission's

[[Page 26682]]

development and evaluation of its policies and regulations and will 
enhance Commission efforts to detect anti-competitive or manipulative 
behavior, or ineffective market rules, thereby helping to ensure just 
and reasonable rates. Accordingly, we require each RTO and ISO to 
electronically deliver to the Commission, on an ongoing basis, the data 
described in this final rule to the extent that each RTO or ISO already 
collects such data.\99\ We also direct each RTO and ISO to submit a 
compliance filing within 45 days of the effective date of this final 
rule, amending its open access transmission tariff to reflect the 
requirement for the ongoing electronic delivery of data. In response to 
the comments received on the NOPR, we provide the following 
clarifications.
---------------------------------------------------------------------------

    \99\ In the event an RTO or ISO begins to collect certain 
datasets described in this final rule not currently collected, that 
RTO or ISO thereafter would be expected to deliver such data to the 
Commission on an ongoing basis.
---------------------------------------------------------------------------

    58. First, we agree with Powerex that uplift charges and credits 
should be included in this final rule.\100\ Upon further consideration, 
we find this data is important to furthering Commission goals of 
facilitating market surveillance and the evaluation of policies and 
regulations. As an example, uplift data may be used to identify 
instances where bidding strategies might merit examination or 
investigation. Uplift data may also be used to identify market designs 
that result in excess uplift charges. Accordingly, we will require RTOs 
and ISOs to report, consistent with the reporting structures outlined 
in this final rule, uplift charges and credits to market participants. 
This dataset would include details used in market settlements 
concerning uplift charges and credits as well as identification of each 
relevant market participant and resource.
---------------------------------------------------------------------------

    \100\ We note that make-whole payments, bid cost recovery 
payments and details on some exceptional or out of market dispatches 
would be captured in the datasets electronically delivered to the 
Commission per the requirements of this final rule.
---------------------------------------------------------------------------

    59. However, we reject Powerex's request to make certain uplift 
data, along with other data covered by this rule, publicly available. 
This data may reveal individual market participant bidding strategies 
and other commercially-sensitive information. Consistent with our 
discussion earlier in this final rule, we expect that all data that 
satisfy the requirements of FOIA exemption 4 would be protected from 
public disclosure.
    60. Second, we agree with the IRC and ISO-NE that there are some 
data elements not critical to the formation of market outcomes that 
will not need to be delivered under this final rule. Specifically, the 
Commission is not requesting the delivery of preliminary entries of 
bids that are subsequently modified by market participants prior to 
their submission of a final bid and prior to market closure. In 
addition, the Commission is seeking shift factor data related to active 
or binding constraints, not shift factor data associated with non-
binding constraints or non-active constraints that is not retained by 
the RTO or ISO. Also, in response to ISO-NE's comment that it should 
not be required to deliver information about secondary FTR markets that 
it no longer administers, we clarify that the Commission does not 
require delivery of data on secondary markets that are not administered 
by the RTOs and ISOs or when secondary market transaction data are not 
provided to the RTO or ISO by market participants.
    61. Third, to the extent the RTO or ISO relies on its MMU to 
produce or retain some of the requested data, we direct the RTO or ISO 
either to: (1) Request such data from its MMU, so that the RTO or ISO 
can deliver it to the Commission; or (2) request its MMU to deliver 
such data directly to the Commission. For instance, IRC indicates that 
MISO relies on its MMU to calculate certain requested data that form 
the basis for market power mitigation that is not delivered to the 
MISO. Market power mitigation data are critical to the proper 
functioning of RTO and ISO markets and important for facilitating 
market surveillance and evaluation of Commission policies and 
regulations. Therefore, in this example, the Commission expects MISO 
either to direct its MMU to provide MISO with such data so that MISO 
can then deliver it to the Commission, or MISO can direct its MMU to 
provide such data to the Commission.
    62. With respect to tracking and documenting what the IRC terms as 
``incremental changes'' to the data, we clarify that we may require 
documentation concerning any change in how the data described in this 
final rule are collected by each RTO and ISO.\101\ Such documentation 
will help the Commission understand and appropriately utilize the data 
that the RTOs and ISOs are delivering to the Commission. Therefore, we 
will direct each RTO and ISO to notify Commission staff in writing of 
any such change as it pertains to data described in this final rule. 
Commission staff will determine whether the identified change requires 
the submission of updated documentation.
---------------------------------------------------------------------------

    \101\ See supra PP 43-44.
---------------------------------------------------------------------------

    63. Finally, we disagree with APPA that the Commission should seek 
not only estimated marginal cost data but also individual generators' 
actual costs, revenues, and profits. In this final rule, the Commission 
is undertaking a data collection from the RTOs and ISOs that will 
enable it to better fulfill its statutory responsibilities. In 
contrast, information on individual generators' actual costs, revenues, 
and profits is not currently collected by RTOs and ISOs and to obtain 
such information would require its collection from market participants. 
At this time, the Commission will not undertake a separate data 
collection effort from market participants, as proposed by APPA; that 
is beyond the scope of this proceeding. Furthermore, to the extent the 
Commission is concerned that a particular seller may be exercising 
market power, it may seek additional data from that seller, including 
some or all of the data specified by APPA.

G. Implementation Timeline and Phasing

1. NOPR
    64. The Commission invited comments with respect to the timeframe 
for electronic delivery of the data to the Commission. The Commission 
also invited comments on whether the requirements of the final rule 
should be implemented in phases and, if so, what a potential phased 
approach should entail.
2. Comments
    65. Both ISO-NE and the IRC support phased implementation.\102\ 
ISO-NE maintains that full implementation of ongoing electronic 
delivery of data could be accomplished in about six months following 
the issuance of the final rule.\103\ ISO-NE proposes that phased 
implementation could involve the following steps: (1) Establish the 
initial systems needed and transfer methodology; (2) begin with an 
individual dataset and deliver it to the Commission after three months; 
and (3) expand functionality incrementally to deliver all requested 
data sets within six months.\104\
---------------------------------------------------------------------------

    \102\ ISO-NE at 6; IRC at 9.
    \103\ ISO-NE at 6.
    \104\ Id.
---------------------------------------------------------------------------

    66. The IRC and EEI/EPSA proffer that a twelve-month timeframe 
would be appropriate.\105\
---------------------------------------------------------------------------

    \105\ IRC at 9; EEI/EPSA at 12.
---------------------------------------------------------------------------

    67. The IRC supports an initial, three-month delivery timeframe for 
a first, individual dataset but proposes all

[[Page 26683]]

requested data would be available to the Commission after twelve months 
of the final rule's effective date.\106\ Further, recognizing that 
there will be a defined deadline, the IRC proposes that ``individual 
[RTOs and ISOs] could work with Commission staff to define a set of 
deliverable dates for tiers (which need not be defined in the final 
rule).'' \107\
---------------------------------------------------------------------------

    \106\ IRC at 9.
    \107\ Id.
---------------------------------------------------------------------------

3. Commission Determination
    68. In response to the requests for additional time to implement 
the ongoing electronic delivery, the Commission will direct that 
electronic delivery of all the datasets be fully implemented 210 days 
after the effective date of this final rule, which is 60 days after 
publication in the Federal Register. Moreover, we adopt the proposal to 
implement delivery on a ``phased'' approach, a suggestion supported by 
the IRC and ISO-NE. Phased initial delivery will allow the Commission 
and each RTO and ISO to address data transfer issues more effectively.
    69. Accordingly, we will direct that all RTOs and ISOs implement 
the ongoing electronic delivery of at least one dataset no later than 
45 days after the effective date of this final rule. Unless otherwise 
determined on a case-by-case basis, this initial delivery would include 
at least all data relating to supply offers for energy, as discussed 
and defined in the NOPR.
    70. We will direct that ongoing, electronic delivery of the 
remaining datasets be phased in gradually, with delivery of all 
datasets occurring no later than 210 days after the effective date of 
this final rule. Descriptive information necessary to understand each 
dataset, such as market participant names, unique identifiers, pricing 
points, and other information the Commission considers necessary and 
appropriate to analyze each dataset, should be provided at the same 
time initial delivery of each applicable dataset begins.
    71. Unless otherwise determined on a case-by-case basis, following 
the initial delivery of (at least) the data relating to supply offers 
for energy, in the second phase we will direct that the following 
datasets be delivered electronically no later than 90 days after the 
effective date of this final rule: Virtual offers and bids; and demand 
bids for energy.
    72. Unless otherwise determined on a case-by-case basis, in the 
third phase we will direct that the following datasets be delivered no 
later than 150 days after the effective date of this final rule: 
Marginal cost estimates; energy and ancillary service awards; resource 
output; internal bilateral contracts; and uplift data.
    73. Finally, unless otherwise determined on a case-by-case basis, 
in the fourth and final phase that ends 210 days after the effective 
date of this final rule, we will direct that all remaining datasets be 
delivered, namely: Day-ahead shift factors; supply offer and demand 
bids for ancillary services; capacity market offers, designations and 
prices; pricing data for interchange transactions; and FTR data.

H. Ongoing Electronic Delivery

1. NOPR
    74. The Commission proposed that RTOs and ISOs be required to 
electronically deliver the requested data to the Commission within 
seven days after each RTO or ISO creates the datasets in a daily market 
run or otherwise. For data that are updated less frequently than every 
day, including capacity market results, estimated marginal costs, and 
FTR data, each RTO or ISO would be expected to electronically deliver 
such data within seven days after it is created or updated by the RTO 
or ISO. The Commission also proposed that, in the event an RTO or ISO 
makes later corrections to the data (i.e., after the original data has 
been delivered to the Commission), the RTO or ISO would be expected to 
electronically deliver the corrected data to the Commission within 
seven days after the correction has been made. The Commission invited 
comments with respect to the timeframe in which the data described in 
this NOPR should be electronically delivered to the Commission.
2. Comments
    75. The IRC believes that the seven-day requirement would be 
workable, provided that the RTO or ISO with corrected data can deliver 
the data to the Commission in a format consistent with the manner in 
which each RTO or ISO stores the data, with minimal modifications.\108\
---------------------------------------------------------------------------

    \108\ Id. at 6.
---------------------------------------------------------------------------

    76. The IRC interprets the Commission's intent as focused on 
obtaining data quickly and efficiently, rather than erecting a new 
compliance program. Towards this end, the IRC requests that the 
Commission clarify in the final rule that an RTO or ISO will not face 
compliance penalties in the event that data is not delivered in the 
specified timeframe, provided that the RTO or ISO is making its best 
efforts to comply with the rule and provided that the RTO or ISO gives 
timely notice to the Commission when the RTO or ISO becomes aware that 
there may be a delay in the delivery of data or some impact on the 
accuracy or completeness of the data.\109\
---------------------------------------------------------------------------

    \109\ Id. at 7.
---------------------------------------------------------------------------

    77. Further, the IRC states that the possibility exists that RTOs 
and ISOs will, on occasion, inadvertently produce or deliver 
inaccurate, incomplete, or imperfectly formatted data.\110\ The IRC 
requests that the Commission expressly state in the final rule that, 
unless an error or omission was made to mislead the Commission, the 
submittal of inaccurate, incomplete, or imperfectly formatted data 
should not result in a violation of the Commission's regulations or a 
violation of the RTO's or ISO's tariff.\111\
---------------------------------------------------------------------------

    \110\ Id. at 10.
    \111\ Id.
---------------------------------------------------------------------------

3. Commission Determination
    78. The Commission will require each RTO and ISO to electronically 
deliver the specified data to the Commission in a format consistent 
with the manner in which each RTO and ISO collects this data.\112\ The 
Commission will adopt the proposal in the NOPR that RTOs and ISOs 
electronically deliver data to the Commission within seven days after 
each RTO and ISO creates the datasets in a market run or other 
procedure.\113\ For data that are updated less frequently than every 
day, including capacity market results, estimated marginal costs, and 
FTR data, each RTO and ISO must electronically deliver that data within 
seven days after it is created or updated by the RTO or ISO. Each RTO 
and ISO is required to deliver all data consistent with timelines 
described elsewhere in this final rule. With respect to any corrections 
made to the data (i.e., after they have been delivered to the 
Commission), the RTO or ISO will be expected to electronically deliver 
the corrected data to the Commission within seven days after the 
correction has been made and identify whether that correction is adding 
to, changing, or deleting data previously delivered.\114\
---------------------------------------------------------------------------

    \112\ See supra Sec.  III.D (Data Formatting).
    \113\ NOPR, FERC Stats. & Regs. ] 32,681 at P 38.
    \114\ See supra note 75.
---------------------------------------------------------------------------

    79. We cannot make a blanket statement, as requested by the IRC, 
that the submission of inaccurate, incomplete, or imperfectly formatted 
data will not result in a violation of the Commission's regulations or 
the RTO and ISO tariff. However, as a general matter, the Commission 
does not intend

[[Page 26684]]

to penalize RTOs and ISOs for infrequent, minor errors in data 
reporting. Moreover, as stated in the Revised Policy Statement on 
Enforcement, the Commission's Enforcement staff ``frequently exercises 
prosecutorial discretion to resolve minor infractions with voluntary 
compliance measures rather than with penalties.'' \115\
---------------------------------------------------------------------------

    \115\ Enforcement of Statutes, Regulations, and Orders, 123 FERC 
] 61,156, at P 9 (2008).
---------------------------------------------------------------------------

I. Future Specifications and Modifications of the Data and the Process 
for Delivery

1. NOPR
    80. The Commission stated that the data it is proposing to receive 
would be limited to physical and virtual offers and bids, market 
awards, resource outputs, marginal cost estimates, shift factors, FTRs, 
internal bilateral contracts, and interchange pricing. The Commission 
also stated that these datasets would include descriptive information 
such as market participant names, unique identifiers, pricing points, 
and other information the Commission considers necessary and 
appropriate to understand and analyze the data described in this NOPR. 
However, the Commission recognized that markets are not static and, as 
markets continue to evolve, the Commission may initiate a new 
rulemaking proceeding in the future to reassess the data necessary for 
its market monitoring and surveillance efforts and for its policy and 
decision-making needs.
2. Comments
    81. The IRC states that the proposed regulation itself does not 
specify the data that the RTOs and ISOs will be required to deliver, 
nor does the regulation specify any process by which the Commission may 
alter the obligations to provide data.\116\ The IRC further states 
that, because the RTOs and ISOs need time to make modifications to the 
processes they employ in response to a change in the data delivery 
obligations, the Commission should specify the process it will use to 
modify the required data, data format, and/or the delivery 
mechanism.\117\
---------------------------------------------------------------------------

    \116\ IRC at 11.
    \117\ Id.
---------------------------------------------------------------------------

3. Commission Determination
    82. The regulatory text adopted by this final rule sets forth the 
obligation for RTOs and ISOs to provide data to the Commission. The 
narrative preamble to that regulatory text, i.e., the final rule, 
provides additional, specific information about the datasets and 
details about the electronic delivery formatting, procedures, and 
security measures.
    83. As to future changes in reporting, the Commission anticipates 
that changes in the datasets to be provided will be made through a 
rulemaking proceeding.

J. Technical Conference

1. Comments
    84. In their joint comments, EEI/EPSA encourage the Commission to 
convene one or more technical conferences to address concerns related 
to this rulemaking and other Commission data collection efforts.\118\
---------------------------------------------------------------------------

    \118\ EEI/EPSA at 12.
---------------------------------------------------------------------------

2. Commission Determination
    85. We deny EEI/EPSA's request to hold a technical conference. EEI/
EPSA have not raised any issues that have not been adequately addressed 
in the rulemakings and that would otherwise require a technical 
conference.

IV. Information Collection Statement

    86. The collections of information contained in this final rule are 
being submitted to the Office of Management and Budget (OMB) for review 
under section 3507(d) of the Paperwork Reduction Act of 1995, 44 U.S.C. 
3507(d). Upon approval of a collection 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 collections of information if the collections of 
information do not display a valid OMB control number.
    87. The final rule does not require market participants other than 
the RTOs and ISOs to report information to the Commission.
    88. The Commission did not receive any comments regarding the 
burden estimates in the proposed rule and uses the same estimates here.
    89. In this final rule, the Commission did deviate from the 
proposed rule in several instances. Specifically, the Commission 
included an additional dataset, uplift, in this final rule. Any 
increase in burden associated with the inclusion of uplift data, 
however, should be offset by the decision in this final rule not to 
require consistent formatting by the RTOs and ISOs.
    90. In addition, in this final rule, the Commission also clarifies 
that, in very limited instances, individual datasets that the 
Commission is requesting may be produced or retained by the MMUs. The 
Commission directed each RTO and ISO either to: (1) Request such data 
from its MMU, so that the RTO or ISO can deliver such data to the 
Commission; or (2) request its MMU to deliver such data directly to the 
Commission. Any burden associated with the delivery of such data is 
counted as burden on the RTO or ISO, as each RTO or ISO is responsible 
for such delivery to the Commission, and not the MMU.
    91. The burden imposed by this rule on the RTOs and ISOs is 
captured through the estimates below.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Implementing burden     Annual recurring operating     Average annual burden
                                                                     ----------------------------           burden               (implementation cost
                                                                                                 ----------------------------    averaged over 3 yrs.)
               Data collection, FERC-921                  Number of   Burden  hrs.                                           ---------------------------
                                                         respondents       per        Cost per    Burden  hrs.    Cost per    Burden  hrs.    Cost  for
                                                                       respondent    respondent        per       respondent      for all         all
                                                                                                   respondent                  respondents   respondents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compliance filing.....................................             6             7        $1,750  ............  ............            14        $3,500
Web-Based Delivery....................................             6         1,040      $100,864            40        $3,879         2,320       225,003
----------------------------------------------------------------------
    Grand Total, Average Annual Estimates.............             6  ............  ............  ............  ............         2,334       228,503
--------------------------------------------------------------------------------------------------------------------------------------------------------

    92. The Commission recognizes that there will be an initial 
implementation burden associated with providing the Commission with RTO 
and ISO data. This includes submitting a compliance filing to the 
Commission, which the

[[Page 26685]]

Commission estimates as a burden of 7 hours per RTO and ISO, and 
implementing a process to automatically upload data to an SFTP site for 
Commission use (including development, testing and production). The 
Commission estimates a burden of 1,040 hours per RTO and ISO for the 
development, testing and production of an automated process to provide 
the Commission with the data required in this final rule. In this 
regard, though, RTO and ISO markets have already developed capabilities 
necessary to handle RTO and ISO data in an automated manner. For 
instance, through their Open Access Same-time Information Systems 
(OASIS), RTOs and ISOs already make certain market data publically 
available using automated procedures. Likewise, some RTOs and ISOs have 
developed procedures similar to those contained in this final rule to 
deliver data to their MMUs.
    93. For the recurring effort involved in electronically delivering 
RTO and ISO data to the Commission, the Commission anticipates that the 
additional burden associated with this rule will be minimal. Any 
recurring burden would be associated with addressing updates to RTO and 
ISO data as the data that they process changes and due to occasional 
errors in the data handling or data upload process.
    Information Collection Costs: The Commission has estimated the cost 
of compliance per RTO and ISO to be $102,614 in the initial year of 
implementation and $3,879 in subsequent years. The Commission expects 
that the compliance filing will be completed by RTO and ISO legal staff 
and has estimated an hourly rate at $250/hour. The Commission estimates 
that a variety of staff, including legal, database administrators and 
IT and information security specialists, will be required to 
electronically deliver to the Commission the RTO and ISO data 
identified in this final rule. The Commission has estimated the average 
hourly cost for this task to be $96.98/hour (including legal staff at 
$250/hour, information systems manager at $105.35/hour, database 
administrator at $55.61/hour, and information security analyst at 
$57.67/hour).\119\
---------------------------------------------------------------------------

    \119\ Hourly average wage is an average and was calculated using 
Bureau of Labor Statistics (BLS), Occupational Employment Statistics 
data for May 2010 (at http://www.bls.gov/oes/) for the database 
administrator and information security analysts. The average hourly 
figure for legal staff and information systems manager is a 
composite from BLS and other resources. The following weightings 
were applied to estimate the average hourly cost: legal staff (\1/
6\), information systems manager (\1/6\), database administrator 
(\1/3\), and information security analyst (\1/3\).
---------------------------------------------------------------------------

    Title: FERC-921,\120\ Enhancement of Electricity Market 
Surveillance and Analysis.
---------------------------------------------------------------------------

    \120\ OATT compliance filings (like the one-time compliance 
filing here) are normally included under FERC-516 (OMB Control No. 
1902-0096). However, the reporting requirements (including the 
compliance filing) contained in this final rule in Docket No. RM11-
17 will be covered by the FERC-921.
---------------------------------------------------------------------------

    Action: New Collection.
    OMB Control No.: 1902-0257.
    Respondents for this Rulemaking: RTOs and ISOs.
    Frequency of Information: Initial implementation, compliance 
filing, and automated daily updates.
    Necessity of Information: As wholesale electricity markets continue 
to develop and evolve, new opportunities arise for anti-competitive or 
manipulative behavior. The Commission's market monitoring and 
surveillance capabilities and associated data requirements must keep 
pace with market developments and evolve along with the markets. The 
data requirement set forth in this final rule will allow the Commission 
to more effectively identify and address such behavior; to identify 
ineffective market rules; to better inform Commission policies and 
regulations; and thus to help ensure just and reasonable rates.
    Internal Review: The Commission has made a preliminary 
determination that the revisions are necessary to keep pace with ever-
changing possibilities for anti-competitive or manipulative behavior 
and to better inform Commission policies and regulations, and thus to 
ensure that rates are just and reasonable. The Commission has assured 
itself, by means of its internal review, that there is specific, 
objective support for the burden estimate associated with the 
information requirements.
    94. 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, email: <a href="/cdn-cgi/l/email-protection#8ecaeffaefcde2ebeffcefe0edebcee8ebfceda0e9e1f8"><span class="__cf_email__" data-cfemail="3276534653715e575340535c515772545740511c555d44">[email protected]</span></a>, phone: 
(202) 502-8663, fax: (202) 273-0873].
    95. Comments concerning the information collections required in 
this Final Rule and the associated burden estimates should be sent to 
the Office of Management and Budget, Office of Information and 
Regulatory Affairs, Washington, DC 20503 [Attention: Desk Officer for 
the Federal Energy Regulatory Commission]. For security reasons, 
comments should be sent by email to OMB at the following email address: 
<a href="/cdn-cgi/l/email-protection#3a5553485b65494f58575349495355547a555758145f554a145d554c"><span class="__cf_email__" data-cfemail="7817110a19270b0d1a15110b0b1117163817151a561d1708561f170e">[email protected]</span></a>. Please reference FERC-921 and the docket 
number of this rulemaking (Docket No. RM11-17-000) in your submission.

V. Environmental Analysis

    96. 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.\121\ The 
Commission has categorically excluded certain actions from these 
requirements as not having a significant effect on the human 
environment.\122\ The actions proposed here fall within a categorical 
exclusion in the Commission's regulations, i.e., they involve 
information gathering, analysis, and dissemination.\123\ Therefore, 
environmental analysis is unnecessary and has not been performed.
---------------------------------------------------------------------------

    \121\ Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47,897 (Dec. 17, 1987), FERC Stats. & 
Regs. ] 30,783 (1987).
    \122\ 18 CFR 380.4.
    \123\ See 18 CFR 380.4(a)(5).
---------------------------------------------------------------------------

VI. Regulatory Flexibility Act

    97. The Regulatory Flexibility Act of 1980 (RFA) \124\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The RFA mandates consideration of regulatory alternatives that 
accomplish the stated objectives of a rule and that minimize any 
significant economic impact on a substantial number of small entities. 
The Small Business Administration's (SBA) Office of Size Standards is 
responsible for the definition of a small business.\125\ The SBA has 
established a size standard for utilities, stating that a firm is small 
if, including its affiliates, it is primarily engaged in the 
transmission, generation and/or distribution of electric energy for 
sale and its total electric output for the preceding twelve months did 
not exceed four million megawatt hours.\126\ RTOs and ISOs are not 
small entities, and they are the only entities impacted directly by 
this final rule.\127\
---------------------------------------------------------------------------

    \124\ 5 U.S.C. 601-612.
    \125\ 13 CFR 121.101.
    \126\ 13 CFR 121.201 (Sector 22, Utilities).
    \127\ As noted in the final rule, an MMU may be directed by the 
RTO or ISO to provide data to the RTO or ISO, or directly to the 
Commission. Any impact on the MMU is considered part of the impact 
on RTOs and ISOs and does not affect the analysis performed in this 
section.
---------------------------------------------------------------------------

    98. CAISO is a nonprofit organization with over 54,000 megawatts of 
capacity and over 25,000 circuit miles of transmission lines.
    99. NYISO is a nonprofit organization that oversees wholesale 
electricity

[[Page 26686]]

markets serving 19.2 million customers. NYISO manages a nearly 11,000-
mile network of high-voltage transmission lines.
    100. PJM is comprised of more than 700 members including power 
generators, transmission owners, electricity distributers, power 
marketers, and large industrial customers and serves 13 states and the 
District of Columbia.
    101. SPP is comprised of 63 members serving 6.2 million households 
in nine states and has 48,930 miles of transmission lines.
    102. MISO is a nonprofit organization with over 145,000 megawatts 
of installed generation. MISO has over 57,600 miles of transmission 
lines and serves 13 states and one Canadian province.
    103. ISO-NE is a regional transmission organization serving six 
states in New England. The system is comprised of more than 8,000 miles 
of high-voltage transmission lines and over 300 generators.
    104. The Commission certifies that this rule will not have a 
significant economic impact on a substantial number of small entities, 
and therefore no regulatory flexibility analysis is required.

VII. Document Availability

    105. 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.
    106. 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.
    107. User assistance is available for eLibrary and the the 
Commission's Web site during normal business hours from FERC Online 
Support at 202-502-6652 (toll free at 1-866-208-3676) or email at 
<a href="/cdn-cgi/l/email-protection#f3959681909c9d9f9a9d96808683839c8187b395968190dd949c85"><span class="__cf_email__" data-cfemail="197f7c6b7a76777570777c6a6c6969766b6d597f7c6b7a377e766f">[email protected]</span></a>, or the Public Reference Room at (202) 502-
8371, TTY (202)502-8659. Email the Public Reference Room at 
<a href="/cdn-cgi/l/email-protection#bacacfd8d6d3d994c8dfdcdfc8dfd4d9dfc8d5d5d7fadcdfc8d994ddd5cc"><span class="__cf_email__" data-cfemail="dfafaabdb3b6bcf1adbab9baadbab1bcbaadb0b0b29fb9baadbcf1b8b0a9">[email protected]</span></a>.

VIII. Effective Date and Congressional Notification

    108. These regulations are effective July 6, 2012. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs of OMB, that this rule is not a 
``major rule'' as defined in section 351 of the Small Business 
Regulatory Enforcement Fairness Act of 1996.

List of Subjects in 18 CFR Part 35

    Electric power rates, Electric utilities, Reporting and 
recordkeeping requirements.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission amends Part 35, 
Chapter I, Title 18, Code of Federal Regulations, as follows.

PART 35--FILING OF RATE SCHEDULES AND TARIFFS

0
1. The authority citation for Part 35 continues to read as follows:

    Authority: 16 U.S.C 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 
U.S.C. 7101-7352.


0
2. In Sec.  35.28, paragraphs (g)(4) through (g)(7) are redesignated as 
paragraphs (g)(5) through (g)(8) and a new paragraph (g)(4) is added to 
read as follows:


Sec.  35.28.  Non-discriminatory open access transmission tariff.

* * * * *
    (g) * * *
    (4) Electronic delivery of data. Each Commission-approved regional 
transmission organization and independent system operator must 
electronically deliver to the Commission, on an ongoing basis and in a 
form and manner consistent with its own collection of data and in a 
form and manner acceptable to the Commission, data related to the 
markets that the regional transmission organization or independent 
system operator administers.
* * * * *

    Note: The following appendix will not be published in the Code 
of Federal Regulations.

Appendix A

Commenters on the NOPR

American Public Power Association (APPA)
California Department of Water Resources State Water Project (SWP)
Cogeneration Association of California and the Energy Producers and 
Users Coalition (CAC/EPUC)
Edison Electric Institute and the Electric Power Supply Association 
(EEI/EPSA)
ISO New England Inc. (ISO-NE)
ISO/RTO Council (IRC)
New York Public Service Commission (NYPSC)
Pennsylvania Public Utility Commission (PA PUC)
Powerex Corp. (Powerex)

[FR Doc. 2012-9847 Filed 5-4-12; 8:45 am]
BILLING CODE 6717-01-P


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