26674 Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 

1 16 U.S.C. 825(b), 825f(a). 

2011 Fee 

lesser of actual or calculated fee 

CBOE Futures .......................... $173 

Chicago Board of Trade ........... 86,901 

Chicago Climate Exchange ...... 4,444 

Chicago Mercantile Exchange .. 412,413 

ICE Futures U.S. ...................... 102,659 

Kansas City Board of Trade ..... 52,294 

Minneapolis Grain Exchange ... 52,172 

New York Mercantile Exchange 274,838 

North American Derivatives Exchange .................................. 4,196 

OneChicago .............................. 1,157 

Subtotal ............................. 991,247 

National Futures Association .... 790,141 

Total ................................... 1,781,388 

III. Payment Method 

The Debt Collection Improvement Act 

(DCIA) requires deposits of fees owed to 

the government by electronic transfer of 

funds (See 31 U.S.C. 3720). For 

information about electronic payments, 

please contact Jennifer Fleming at (202) 

418–5034 or jfleming@cftc.gov, or see 

the CFTC Web site at www.cftc.gov, 

specifically, www.cftc.gov/cftc/ 

cftcelectronicpayments.htm. 

Issued in Washington, DC, on this 1st day 

of May, 2012, by the Commission. 

David Stawick, 

Secretary of the Commission. 

[FR Doc. 2012–10898 Filed 5–4–12; 8:45 am] 

BILLING CODE P 

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. 

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, 

william.sauer@ferc.gov. 

Christopher Daignault (Legal 

Information), Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street NE., 

Washington, DC 20426, (202) 502– 

8286, christopher.daignault@ferc.gov. 

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 and the Process for Delivery .......................................................... 80 

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 

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Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 26675 

2A 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). 

5Promoting 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). 

6Open 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). 

7Order No. 888, FERC Stats. & Regs. ¶ 31,036 at 

31,634. 

8Preventing 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). 

9Order No. 888, FERC Stats. & Regs. ¶ 31,036 at 

31,652; see also id. at 31,730–32. 

10Revised 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. 

12Charles H. Koch, Jr., Collaborative Governance: 

Lessons for Europe from U.S. Electricity 

Restructuring, 61 Admin. L. Rev. 71, 97 (2009). 

13Public Law 109–58, 119 Stat. 594 (2005). 

14See, e.g., 16 U.S.C. 824v. 

15See 16 U.S.C. 825o–1 (civil penalties). 

16See 16 U.S.C. 825o (criminal penalties). 

17Prior 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 JerseyMaryland 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 

Continued 

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. 

II. Background 

2. Wholesale electricity markets have 

changed dramatically in recent years: 2

From an industry characterized by selfsufficient, 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

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. 

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). 

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

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 

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26676 Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 

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. 

20Specifically, 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. 

21See, e.g., Order No. 719, FERC Stats. & Regs. 

¶ 31,281 at P 314. 

22Order No. 2000, FERC Stats. & Regs. ¶ 31,089 

at 31,156–57. 

23 Id. 

24 16 U.S.C. 825(b); 16 U.S.C. 825f(a). 

25Appendix A lists commenters and their 

abbreviated names as used here. 

26See NOPR, FERC Stats. & Regs. ¶ 32,681 at 

P 36; see infra § III.F (Data Requested) for the data 

in this final rule to be provided. 

27See 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. 

31PA PUC at 2. 

32SWP at 1–2; NYPSC at 3; PA PUC at 2–10; IRC 

at 1–2; Powerex § 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). 

33Powerex § IV.A. (footnote omitted). 

34 Id. § IV.A.; ISO–NE at 3. 

35PA PUC at 4. 

36EEI/EPSA at 6. 

37 Id. 

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

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

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. 

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, nonpublic 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. 

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

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

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: 

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] 

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

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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Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 26677 

38See 16 U.S.C 824d, 824e. 

39See NOPR, FERC Stats. & Regs. ¶ 32,681 at PP 

30–31. 

40 Id. P 29. 

41 Id. P 13. 

42SWP 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). 

43See 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/ferceo-13579.pdf. 

44SWP at 2. 

45 Id. 

46EEI/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. 

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. 

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 crossmarket 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

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

2. Comments 

21. Several commenters urge the 

Commission to avoid duplicative 

reporting, given other recent data 

collection requirements.42

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

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

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 

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49Order 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). 

50Order No. 2001, FERC Stats. & Regs. 31,127 at 

P 31. 

51See infra § III.D (Data Formatting). 

52See Order No. 2001, FERC Stats. & Regs. 

¶ 31,127 at P 336; Order No. 2001–E, 105 FERC 

¶ 61,352 at P 12. 

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). 

54The 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. 

55Section 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. 

56See CAC/EPUC at 1–2; EEI/EPSA at 10; 

Powerex § IV.C. 

57See Powerex § IV.C; APPA at 4. 

58APPA at 4. 

59Powerex § 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) makewhole and bid cost recovery payments. Powerex 

§ IV.C. 

60See EEI/EPSA at 9–11. 

61EEI/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 

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. 

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. 

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

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

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

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Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 26679 

concerns, and ensure the appropriate rules and 

regulations are enacted prior to requiring the 

reporting of confidential information.’’ 

Id. 

62EEI/EPSA at 4. 

63See NOPR, FERC Stats. & Regs. ¶ 32,681 at P 

45. 

64See 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). 

66See NOPR, FERC Stats. & Regs. ¶ 32,681 at 

P 42. 

67NYPSC at 4; IRC at 2–4; ISO–NE at 3; EEI/EPSA 

at 4. 

68 ISO–NE at 3 

69NYPSC at 4. 

70 IRC at 3. 

71 Id. at 4. 

72We 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.). 

73RTOs 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. 

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

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. 

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

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

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: 

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. 

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 

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26680 Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 

74As 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. 

75We 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). 

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. 

80EEI/EPSA at 4. 

81 Id. at 10. 

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. 84See supra § III.C. (Confidentiality of Data). 

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

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. 

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 nonconfidential 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

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.’’ 

48. The Commission rejects EEI/ 

EPSA’s suggestions that the Commission 

allow RTOs and ISOs to post only nonconfidential 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 nonpublic.84

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 selfscheduled. 

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 

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85NOPR, FERC Stats. & Regs. ¶ 32,681 at P 14. 

86SWP at 1–2; NYPSC at 3; PA PUC at 2–10; IRC 

at 1–2; Powerex § IV.A.; APPA at 6; ISO–NE at 2– 

3. 

87Powerex § IV.B.; APPA at 4. 

88Powerex contends that this data should be 

made publicly available in order to increase market 

transparency. Powerex § IV.B., .C.; see also supra 

§ III.C. (Confidentiality of Data). 

89APPA 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)). 

91PA PUC at 3; EEI/EPSA at 4. 

92 ISO–NE at 4; IRC at 5–6. 

93 IRC at 5. 

94One 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. 

97 IRC at 6. 

98 Id. 

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 nonbinding 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. 

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

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. 

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

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 nonbinding 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

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

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 

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26682 Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 

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. 

100We 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. 101See supra PP 43–44. 

102 ISO–NE at 6; IRC at 9. 

103 ISO–NE at 6. 

104 Id. 

105 IRC at 9; EEI/EPSA at 12. 

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. 

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. 

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. 

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

66. The IRC and EEI/EPSA proffer that 

a twelve-month timeframe would be 

appropriate.105

67. The IRC supports an initial, threemonth delivery timeframe for a first, 

individual dataset but proposes all 

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Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 26683 

106 IRC at 9. 

107 Id. 108 Id. at 6. 

109 Id. at 7. 

110 Id. at 10. 

111 Id. 

112See supra § III.D (Data Formatting). 

113NOPR, FERC Stats. & Regs. ¶ 32,681 at P 38. 

114See supra note 75. 

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

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 caseby-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: Dayahead 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 sevenday 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

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

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

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

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 

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26684 Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 

115Enforcement of Statutes, Regulations, and 

Orders, 123 FERC ¶ 61,156, at P 9 (2008). 

116 IRC at 11. 117 Id. 118EEI/EPSA at 12. 

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

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 decisionmaking 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

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

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. 

Data collection, FERC–921 Number of 

respondents 

Implementing burden Annual recurring operating 

burden 

Average annual burden 

(implementation cost averaged over 3 yrs.) 

Burden 

hrs. per 

respondent 

Cost per 

respondent 

Burden 

hrs. per 

respondent 

Cost per 

respondent 

Burden 

hrs. for all 

respondents 

Cost 

for all 

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 

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Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 26685 

119Hourly 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). 

120OATT 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. 

121Regulations 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. 

123See 18 CFR 380.4(a)(5). 

124 5 U.S.C. 601–612. 

125 13 CFR 121.101. 

126 13 CFR 121.201 (Sector 22, Utilities). 

127As 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. 

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

Title: FERC–921,120 Enhancement of 

Electricity Market Surveillance and 

Analysis. 

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 anticompetitive 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: 

DataClearance@ferc.gov, 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: oira_submission@omb.eop.gov. 

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. 

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

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 

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26686 Federal Register / Vol. 77, No. 88 / Monday, May 7, 2012 / Rules and Regulations 

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 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202)502–8659. Email the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

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 

■ 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. 

■ 2. In § 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: 

§ 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 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 40 

[Docket No. RM11–18–000; Order No. 762] 

Transmission Planning Reliability 

Standards 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Final rule. 

SUMMARY: Under section 215 of the 

Federal Power Act, the Federal Energy 

Regulatory Commission remands 

proposed Transmission Planning (TPL) 

Reliability Standard TPL–002–0b, 

submitted by the North American 

Electric Reliability Corporation (NERC), 

the Commission-certified Electric 

Reliability Organization. The proposed 

Reliability Standard includes a 

provision that allows for planned load 

shed in a single contingency provided 

that the plan is documented and 

alternatives are considered and vetted in 

an open and transparent process. The 

Commission finds that this provision is 

vague, unenforceable and not 

responsive to the previous Commission 

directives on this matter. Accordingly, 

the Final Rule remands NERC’s 

proposal as unjust, unreasonable, 

unduly discriminatory or preferential, 

and not in the public interest. 

DATES: This rule will become effective 

July 6, 2012. 

ADDRESSES: You may submit comments, 

identified by docket number by any of 

the following methods: 

• Agency Web Site: http:// 

www.ferc.gov. Documents created 

electronically using word processing 

software should be filed in native 

applications or print-to-PDF format and 

not in a scanned format. 

• Mail/Hand Delivery: Commenters 

unable to file comments electronically 

must mail or hand deliver comments to: 

Federal Energy Regulatory Commission, 

Secretary of the Commission, 888 First 

Street NE., Washington, DC 20426. 

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