[Federal Register Volume 74, Number 75 (Tuesday, April 21, 2009)]
[Rules and Regulations]
[Pages 18127-18132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9111]



[[Page 18127]]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 284

[Docket No. RM08-1-003, et al.; Order No. 712-B]


Promotion of a More Efficient Capacity Release Market

Issued April 16, 2009.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule; order on rehearing and clarification and 
terminating dockets.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
issuing an order addressing the requests for rehearing and 
clarification of Order No. 712-A [73 FR 72692, December 1, 2008]. Order 
No. 712 [73 FR 37058, June 30, 2008], as modified by Order No. 712-A, 
revised the Commission's regulations governing interstate natural gas 
pipelines to reflect changes in the market for short-term 
transportation services on pipelines and to improve the efficiency of 
the Commission's capacity release program. The orders lifted the 
maximum rate ceiling on secondary capacity releases of one year or less 
provided that such releases take effect within a year of the date that 
a pipeline is notified of the release. The revised regulations 
facilitated asset management arrangements (AMA) by relaxing the 
Commission's prohibition on tying and on its bidding requirements for 
certain capacity releases. The Commission further clarified in Order 
No. 712 that its prohibition on tying does not apply to conditions 
associated with gas inventory held in storage for releases of firm 
storage capacity. Finally, the Commission waived its prohibition on 
tying and bidding requirements for capacity releases made as part of 
state-approved retail access programs.
    This Order denies rehearing and grants clarification in part and 
denies clarification in part of Order No. 712-A. This order also 
terminates Docket Nos. RM06-21-000 and RM07-4-000.

DATES: Effective Date: This order denying rehearing of the final rule 
will become effective May 21, 2009.

FOR FURTHER INFORMATION CONTACT: 

William Murrell, Office of Energy Market Regulation, Federal Energy 
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 
<a href="/cdn-cgi/l/email-protection#99cef0f5f5f0f8f4b7d4ecebebfcf5f5d9fffcebfab7fef6ef"><span class="__cf_email__" data-cfemail="de89b7b2b2b7bfb3f093abacacbbb2b29eb8bbacbdf0b9b1a8">[email protected]</span></a>, (202) 502-8703.
Robert McLean, Office of General Counsel, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426, 
<a href="/cdn-cgi/l/email-protection#d88ab7babdaaacf695bb94bdb9b698bebdaabbf6bfb7ae"><span class="__cf_email__" data-cfemail="c694a9a4a3b4b2e88ba58aa3a7a886a0a3b4a5e8a1a9b0">[email protected]</span></a>, (202) 502-8156.
David Maranville, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 
<a href="/cdn-cgi/l/email-protection#f6b297809f92d8bb97849798809f9a9a93b690938495d8919980"><span class="__cf_email__" data-cfemail="86c2e7f0efe2a8cbe7f4e7e8f0efeaeae3c6e0e3f4e5a8e1e9f0">[email protected]</span></a>, (202) 502-6351.

SUPPLEMENTARY INFORMATION: 

Order on Rehearing and Clarification and Terminating Dockets

    1. On November 21, 2008, the Commission issued Order No. 712-A in 
which it denied rehearing and granted clarification in part of Order 
No. 712.\1\ Order No. 712, as modified by Order No. 712-A, revised the 
Commission's regulations governing interstate natural gas pipelines to 
reflect changes in the market for short-term transportation services on 
pipelines and to improve the efficiency of the Commission's capacity 
release program. The orders lifted the maximum rate ceiling on 
secondary capacity releases of one year or less provided that such 
releases take effect within a year of the date that the pipeline is 
notified of the release. The revised regulations facilitated asset 
management arrangements (AMA) by relaxing the Commission's prohibition 
on tying and on its bidding requirements for certain capacity releases. 
The Commission further clarified in Order No. 712 that its prohibition 
on tying does not apply to conditions associated with gas inventory 
held in storage for releases of firm storage capacity. Finally, the 
Commission waived its prohibition on tying and bidding requirements for 
capacity releases made as part of state-approved retail access 
programs. This Order denies rehearing and grants clarification in part 
and denies clarification in part of Order No. 712-A, and terminates 
Docket Nos. RM06-21-000 and RM07-4-000.
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    \1\ Promotion of a More Efficient Capacity Release Market, 73 FR 
37058 (June 30, 2008), FERC Statutes and Regulations ] 31,271 
(2008), (Order No. 712), order on reh'g, Order No. 712-A, 73 FR 
72692 (December 1, 2008), FERC Stats. & Regs. ] 31,284 (2008) (Order 
No. 712).
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    2. Several parties seek clarification and/or rehearing of Order No. 
712-A. The Marketer Petitioners seek clarification concerning an asset 
manager's delivery obligation when an AMA includes released capacity on 
upstream and downstream pipelines.\2\ The National Grid Gas Delivery 
Companies \3\ request clarification, and National Fuel Gas Distribution 
Corporation (National Fuel) requests clarification, rehearing, or a 
limited waiver, concerning what releases qualify as releases to a 
marketer participating in a state-regulated retail access program. 
Consolidated Edison of New York Inc., (Con Ed) and Orange and Rockland 
Utilities, Inc., (O&R) (filing collectively), Energy America, New York 
State Electric and Gas Corporation (NYSEG) and Rochester Gas and 
Electric Corporation (RG&E) (filing collectively) seek clarification of 
Order No. 712-A or alternatively request waivers on the same issue 
raised by National Grid and National Fuel. The New York State Energy 
Marketers Coalition (NYSEMC) moved to intervene out of time and filed 
comments opposing the requests for clarification and waivers sought by 
National Fuel others on the retail access issue. The Commission denies 
rehearing of Order No. 712-A and grants in part, and denies in part, 
clarification of Order No. 712-A. The clarification granted in this 
order moots the requests for waivers.
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    \2\ For purposes of this request for clarification, the Marketer 
Petitioners include Shell Energy NorthAmerica (US), L.P., 
ConocoPhillips Company, Chevron U.S.A. Inc., Constellation Energy 
Commodities Group, Inc., Tenaska Marketing Ventures, Merrill Lynch 
Commodities, Inc., Nexen Marketing U.S.A. Inc., UBS Energy LLC, and 
Citigroup Energy Inc.
    \3\ The National Grid Gas Delivery Companies comprise The 
Brooklyn Union Gas Company d/b/a KeySpan Energy Delivery NY; KeySpan 
Gas East Corporation d/b/a KeySpan Energy Delivery LI; Boston Gas 
Company, Colonial Gas Company, EnergyNorth Natural Gas, Inc., and 
Essex Gas Company, collectively d/b/a KeySpan Energy Delivery NE; 
Niagara Mohawk Power Corporation d/b/a National Grid; and The 
Narragansett Electric Company d/b/a National Grid, all subsidiaries 
of National Grid USA, (collectively National Grid).
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Upstream Pipeline Delivery Obligations

Request for Clarification

    3. In Order No. 712, the Commission exempted capacity releases that 
were meant to implement AMAs from the Commission's prohibition against 
tying and its bidding requirements. As part of the definition of AMAs 
that would qualify for these exemptions, the Commission determined that 
there must be a significant delivery or purchase obligation on the 
replacement shipper to deliver gas to, or purchase gas from, the 
releasing shipper in order to distinguish AMAs from standard capacity 
releases.\4\ Accordingly, the Commission required that the release 
contain a condition that the ``releasing shipper may call upon the 
replacement shipper to deliver to, or purchase, from, the releasing 
shipper a volume of gas up to 100 percent of the daily contract demand 
of the released transportation or storage capacity.

[[Page 18128]]

* * *'' \5\ That obligation must apply for the greater of five months 
or five/twelfths of the term of the release.\6\ In Order No. 712-A, the 
Commission also clarified the delivery/purchase obligation portion of 
the AMA definition in several respects not at issue here.\7\
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    \4\ Order No. 712 at P 144-153.
    \5\ 18 CFR 284.8(h)(3), as adopted by Order No. 712-A.
    \6\ Id.
    \7\ See Order No. 712-A at P 79-82.
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    4. In addition, the Commission denied a request by the Public 
Service Company of North Carolina, South Carolina Electric and Gas 
Company and Scana Energy Marketing, Inc., (collectively Scana) to 
clarify that in a situation where parties include released capacity on 
both an upstream and downstream pipeline in an AMA, the asset manager's 
delivery obligation only applies to the released capacity on the 
downstream pipeline that directly connects to the releasing shipper's 
delivery point.\8\ The Commission explained that if the delivery 
obligation did not apply to the full amount of the upstream released 
capacity, the releasing shipper could include capacity in the upstream 
release that it does not need for its own legitimate business purposes 
during the term of the release. The Commission concluded that while 
Scana was correct that the delivery/purchase obligation is not 
cumulative of the capacity in a released chain of contracts that 
constitute a single capacity path, the asset manager must have a 
delivery/purchase obligation up to the contract demand of each specific 
contract released to it.\9\
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    \8\ Id. P 86-87.
    \9\ Id. P 87.
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    5. The Commission also denied Scana's and BP Energy Company's (BP) 
request for clarification that where released storage and 
transportation capacity are combined in an AMA, the delivery/purchase 
obligations associated with the release only apply to the 
transportation contract. The Commission ruled again that while the 
delivery/purchase obligation is not cumulative of the released 
transportation and storage capacity, to qualify for the exemptions 
provided for AMAs an asset manager must have the necessary purchase/
delivery obligation for each separate contract for released 
capacity.\10\
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    \10\ Id. P 88.
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    6. The Marketer Petitioners seek clarification of both these 
rulings. Marketer Petitioners argue that while the rulings reflect the 
Commission's intent to confirm that the releases at issue are 
associated with bona fide AMAs, they will lead to uncertainty about the 
ultimate contractual delivery/purchase obligation at any specific 
delivery or receipt points under an AMA contract. For example, they 
state that a releasing shipper may have sequential transportation 
contracts on interconnected pipelines to bring gas to a delivery point 
on the downstream pipeline at the releasing shipper's city gate. For 
various reasons, however, the contract demands of the contracts on the 
upstream pipeline(s) may exceed the contract demand on the downstream 
pipeline that directly connects to the releasing shipper's city gate. 
Marketer Petitioners assert that this could occur as a result of the 
need for a shipper to provide fuel and lost and unaccounted for gas 
(LAUF) to each transporting pipeline in the chain.\11\ While the 
Marketer Petitioners recognize that Order No. 712-A stated that the 
asset manager's delivery obligation to the releasing shipper's city 
gate is not cumulative of the contract demands under each contract, 
they argue that Order No. 712-A could be read to suggest that the asset 
manager has the obligation to deliver to the releasing shipper's city 
gate a volume equal to the full amount of the contract demand on the 
upstream pipeline, even though that volume exceeds the contract demand 
on the downstream pipeline. They contend that such a result appears 
inconsistent with Order No. 712's intent to promote efficient AMAs.\12\
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    \11\ Marketer Petitioners' clarification request at 3.
    \12\ Id. at 4.
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    7. The Marketer Petitioners claim the same may be true where a 
releasing shipper has options for both (1) long haul transportation 
from the production area and (2) short haul transportation from market 
area storage that form a ``network'' whereby the releasing shipper can 
serve its needs at its city gate delivery point. According to the 
Marketer Petitioners, this may result in optional capacity paths for an 
asset manager to transport gas, or withdraw gas from storage, to meet 
the releasing shipper's city gate delivery point obligations. Marketer 
Petitioners assert that requiring the asset manager's delivery/purchase 
obligation to apply to the full contract demand under each capacity 
release in the transportation chain creates significant uncertainty as 
to the delivery obligation at the delivery points on the upstream 
pipelines and on the downstream pipeline at the releasing shipper's 
city gate.
    8. The Marketer Petitioners posit an example in their pleading 
where the releasing shipper has capacity on upstream Pipelines A and B, 
and on downstream Pipeline C. Pipeline C connects with the releasing 
shipper's city gate. Both Pipelines A and B interconnect with Pipeline 
C at Point Y, which is the releasing shipper's receipt point on 
Pipeline C. (See Figure 1 below).\13\ The releasing shipper has 1,000 
Dth per day of short haul capacity on Pipeline A from market area 
storage to Point Y. The releasing shipper has 5,000 Dth per day of long 
haul capacity on Pipeline B from the production area to Point Y. The 
releasing shipper also has 5,000 Dth per day of capacity on Pipeline C 
from Point Y to its city gate. Thus the releasing shipper has the 
ability to transport 5,000 Dth from the production area over Pipelines 
B and C to its city gate. The releasing shipper also has the option to 
move 1,000 Dth per day from market area storage over Pipelines A and C 
to its city gate, if it is unable to obtain the full 5,000 Dth/day to 
fill pipeline B or because storage gas may be more economical on some 
days.
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    \13\ Id. The example in Figure 1 substantially replicates the 
example filed by the Marketer Petitioners except that they included 
storage withdrawal right figures that we omit here.

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[[Page 18129]]

[GRAPHIC] [TIFF OMITTED] TR21AP09.001

    9. The Marketer Petitioners state it is unclear in this situation 
if the asset manager's delivery obligation at the releasing shipper's 
city gate is equal to (1) the releasing shipper's 5,000 Dth contract 
demand on Pipeline C, or (2) the releasing shipper's 6,000 Dth total of 
the releasing shipper's 1,000 Dth contract demand on Pipeline A and 
5,000 Dth contract demand on Pipeline B. Marketer Petitioners also 
question whether, if the delivery obligation is only 5,000 Dth at the 
city gate, the asset manager nevertheless has a 6,000 Dth delivery 
obligation at Point Y. Marketer Petitioners state that, without 
certainty as to the Commission's view of the location and amount of the 
required delivery obligation, it is unclear if all of the 
transportation and storage capacity is eligible for inclusion in an 
AMA.
    10. Marketer Petitioners thus request clarification that the ruling 
that an asset manager's delivery/purchase obligation must apply to the 
full contract demand under each capacity release in a transportation 
chain is not intended to alter that asset manager's obligation at a 
particular point, or in other words, that it does not add additional 
delivery points to an AMA. Specifically, in the example described 
above, they request clarification that, while the asset manager may 
have a delivery obligation associated with the releases on Pipelines A, 
B, and C, of 1,000 Dth/day, 5,000 Dth/day, and 5,000 Dth per day, 
respectively, that would not alter the asset manager's contractual 
5,000 Dth/day delivery obligation to the releasing shipper at its city 
gate. They claim that such a clarification would affirm the 
Commission's holding that it does not intend the delivery/purchase 
obligation under an AMA to be cumulative of the total contract demands 
associated with the capacity in a released chain and make clear that 
the Commission did not intend to allow AMA customers to use the 
Commission's rulings to enlarge their delivery/purchase entitlements at 
a particular receipt or delivery point under an AMA.
    11. The Marketer Petitioners note that any concern that the 
Commission may have about ``unneeded'' capacity being included in an 
AMA could be addressed by the Commission clarifying that when an AMA 
encompasses capacity released on more than one pipeline, the posting 
should indicate that the AMA also involves capacity on other 
pipeline(s) and should be posted by all the pipelines involved. They 
assert that such a posting requirement would illuminate the totality of 
the release capacity to be included in the AMA.

Commission Determination

    12. The Commission grants clarification in part and denies 
clarification in part. As we stated in Order No. 712-A, the asset 
manager's delivery/purchase obligation must apply to the full contract 
demand under each capacity release in the transportation chain.\14\ In 
other words, each release to an asset manager is a separate capacity 
release that must have its own delivery/purchase obligation in order to 
qualify as an AMA. As we also noted in Order No. 712-A, in the 
situation where there is a capacity chain on several pipelines, the 
delivery purchase obligation need not be cumulative to the extent that 
gas delivered from the upstream pipeline to the downstream pipeline can 
be transported using the released capacity on the downstream pipeline.
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    \14\ Order No. 712-A at P 87.
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    13. The Commission grants clarification that the asset manager's 
delivery obligation at the releasing shipper's city gate need only be 
up to the contract demand of the released capacity on the downstream 
pipeline that interconnects directly with the releasing shipper's city 
gate. The fact the releasing shipper may have also released to the 
asset manager capacity on an upstream pipeline or pipelines with total 
contract demand exceeding the released capacity on the downstream 
pipeline does not increase the asset manager's required delivery 
obligation at the releasing shipper's city gate on the downstream 
pipeline. Thus, in the example set forth in Figure 1, the asset 
manager's delivery obligation at the releasing shipper's city gate 
would be equal to the 5,000 Dth/day released capacity on Pipeline C, 
despite the fact the released capacity on Pipelines A and B totals 
6,000 Dth/day.
    14. While a releasing shipper may release capacity to an asset 
manager on an upstream pipeline(s) that exceeds the released downstream 
capacity, the asset manager must have a delivery obligation

[[Page 18130]]

under each such upstream capacity release up to the contract demand of 
that release. In the Figure 1 example, the asset manager's delivery 
obligations on Pipelines A and B must be 1,000 Dth/day and 5,000 Dth/
day, respectively. Thus, to the extent the Marketer Petitioners seek 
clarification that an asset manager's delivery obligation at delivery 
points on upstream pipeline(s) cannot exceed its delivery obligation at 
the city gate delivery point on the downstream pipeline, the Commission 
denies that request. As the Commission held in Order No. 712-A, if the 
asset manager's delivery obligation on the upstream pipeline did not 
apply to the full amount of upstream released capacity, the releasing 
shipper could include capacity in the upstream release that it does not 
need for its own legitimate business purposes during the term of the 
release.
    15. In such a situation, however, if the releasing shipper requires 
the asset manager to deliver volumes on the upstream pipelines that 
exceed the contract demand on the downstream pipeline, the releasing 
shipper would be required to take delivery of the excess volumes at 
points on the upstream pipeline or pipelines, and would also be 
responsible for transporting that excess gas away from those points. In 
the example in Figure 1, for instance, the releasing shipper could 
require the asset manager to deliver 6,000 Dth to Point Y. That 
releasing shipper, however, would have to take delivery of 1,000 Dth of 
that gas at Point Y and make its own additional arrangements to have 
the gas transported away from Point Y, since this quantity exceeds the 
asset manager's released capacity rights on the downstream pipeline. 
The releasing shipper could not require the asset manager to transport 
more than 5,000 Dth/day on Pipeline C from Point Y to the city gate. 
The asset manager could only be held responsible for transporting to 
the releasing shipper's city gate a volume up to the contract demand on 
the downstream pipeline.\15\
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    \15\ The same analysis applies if the releasing shipper reserves 
storage withdrawal rights in excess of its contract demand on the 
interconnecting pipeline. See Marketer Petitioners' request for 
clarification at 5.
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    16. The Commission finds that this rule is straightforward, non-
discriminatory and the most reasonable to administer for both parties 
and the Commission. It is also consistent with the Commission's 
clarification in Order No. 712-A that the delivery obligations for AMAs 
associated with a chain of upstream and downstream pipelines and 
contracts are not cumulative. Further, it minimizes the potential for 
parties to include unneeded upstream capacity in an AMA.\16\
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    \16\ The Commission's additional explanation of its rule should 
remove any uncertainty the Marketer Petitioners have concerning the 
need to reflect fuel and LAUF in the contracts on each pipeline in 
the chain. An asset manager may include the extra volumes necessary 
to cover fuel retention and LAUF charges at each interconnecting 
point in the pipeline chain. The customer may not, however, require 
that the asset manager deliver the cumulative volume to the most 
downstream delivery point. (See example on page 3 of the Marketer 
Petitioners' clarification request).
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Retail Access Programs

Requests for Clarification and/or Waivers

    17. In Order No. 712, as affirmed in Order No. 712-A, the 
Commission determined that capacity releases by local distribution 
companies (LDC) to implement state-approved retail access programs 
should be granted the same blanket exemptions from the prohibition 
against tying and the bidding requirements as capacity releases made in 
the AMA context.\17\ In order to qualify for the exemptions, the 
Commission determined that the released capacity must be used by the 
replacement shipper to provide the gas supply requirements of retail 
consumers pursuant to a retail access program approved by the state 
agency with jurisdiction over the LDC that provides delivery service to 
such retail consumers.\18\ In Order No. 712-A, the Commission clarified 
that a marketer participating in a state-approved retail choice program 
can re-release its capacity to an asset manager that will fulfill the 
marketer's obligation under the state-approved program.\19\ The 
Commission declined to grant a request for clarification, however, that 
a wholesale supplier who obtains capacity directly from an LDC as part 
of an unbundling program but who is not a marketer under the program 
nonetheless qualifies for the tying and bidding exemptions.\20\ The 
Commission determined that such a clarification was not appropriate for 
this generic rulemaking proceeding because BP was requesting the 
Commission to approve a specific deal structure that does not meet the 
criteria under which the rule generally grants exemptions. The 
Commission noted that BP or any other parties are free to file 
separately on a case-by-case basis for approval of individual 
arrangements that it believes may merit a waiver of the Commission's 
bidding and tying strictures.\21\
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    \17\ Order No. 712 at P 199; Order No. 712-A at P 115.
    \18\ Order No. 712 at P. 200; Order No. 712-A at P 115.
    \19\ Order No. 712-A at P 118.
    \20\ Id. P 121-122.
    \21\ Id. P 122.
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    18. Several parties seek clarification of that ruling. National 
Grid seeks clarification that an LDC releasing capacity as part of a 
state-approved retail access program may release directly to a 
marketer's asset manager as long as the asset manager has an identical 
obligation to supply gas to the marketer as the marketer's obligation 
to supply gas to the releasing LDC. National Grid asserts that certain 
marketers that participate in its state-approved retail access program 
are requesting that they be allowed to release directly to their asset 
manager so that the asset manager, not the marketer, will be the one 
who has to meet the creditworthiness standards of the pipeline. 
National Grid asserts that cutting out the middle man will enable 
marketers to avoid having to post scarce credit assurances.
    19. National Grid also requests clarification that an LDC that 
releases to an asset manager can require the asset manager to release 
capacity to marketers serving under the retail choice program and that 
such a release will qualify for the exemptions. National Grid asserts 
that the need for this clarification arises from the fact that the 
number of customers participating in an LDC's retail choice program may 
change from time to time and thus the LDC may release to an asset 
manager only to find out that some sales customers have changed to 
transportation only service. National Grid claims this change 
necessitates a release by the LDC to the converting customers' 
marketers. National Grid stated that the requested clarification will 
allow for more efficient releases because the LDC could direct the 
asset manager to effectuate those new releases.
    20. National Fuel seeks clarification that the prohibition against 
tying and the bidding requirements do not apply to releases by an LDC 
to a marketer when the marketer is acting as an agent of a retail 
access marketer pursuant to a state-mandated retail access program. It 
asserts the situation described by BP in BP's request for clarification 
of Order No. 712--where a wholesale entity receives releases as part of 
a state-approved program, for the purpose of selling gas to another 
retail marketer that makes sales directly to retail customers--is not a 
unique situation and should be the subject of the general rulemaking 
proceeding. National Fuel asserts that not all marketers participating 
in state-approved retail unbundling programs sell directly to

[[Page 18131]]

consumers. They claim that in New York, for example, the state choice 
program allows both the release of capacity to retail marketers selling 
directly to consumers and for the release of capacity to marketers that 
are contractually entitled to act as agents for the retail marketers 
selling to consumers.\22\ National Fuel explains that the latter 
arrangements may occur because retail marketers may have difficulty 
acquiring all the releases necessary to meet their obligations under 
the program, often due to credit issues. National Fuel states that in 
the agency situation the retail marketer will enter into an agency 
agreement through which a second marketer becomes the first marketer's 
agent for purposes of acquiring the released capacity from the LDC. The 
agent marketer agrees to acquire the necessary capacity from the LDC 
and to sell gas to the retail marketer at the city gate for the 
purposes of fulfilling the retail marker's obligations under the 
program. According to National Fuel, this sort of arrangement does not 
raise the same concerns as that described by BP because of the 
``agency'' relationship. National Fuel asserts that if the Commission 
does not grant clarification of the regulation, then it should amend 
the regulations to include both retail marketers in state-approved 
programs and their agents.
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    \22\ National Fuel request for clarification at 7.
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    21. Alternatively, National Fuel seeks a limited waiver for the 
situation described above. It states the waiver would only apply under 
the following circumstances: (1) Releases to these marketers would 
occur only when there is a valid, written agency agreement between the 
retail marketer and the marketer receiving releases of capacity, 
requiring the marketer to act as agent for the retail marketer and 
obligating the agent to meet the retail marketer's gas supply needs; 
and (2) the marketer acting as agent must do so as part of a state-
approved customer choice program and under published state-approved 
tariffs and/or procedures. National Fuel argues that the result would 
be fully consistent with both the goal of the exemptions for state 
choice programs and the non-discriminatory and efficiency goals of 
Order No. 712.
    22. The New York State Public Service Commission (NYPSC) filed in 
support of both National Grid's and National Fuel's clarification 
requests. The NYPSC asserts that Order No. 712-A should be clarified to 
avoid ``hindering'' state retail access programs. It claims that the 
releases at issue are made to effect service to the very same customers 
for whose benefit the pipeline capacity was purchased by the releasing 
LDC and that without the exemptions provided by Order No. 712 it would 
be more difficult for marketers to provide service to their end use 
customers. The NYPSC further argues that requiring the issue to be 
resolved on a case by case basis does not foster the Commission's goals 
and harms state retail access programs.
    23. Other LDCs located in New York also filed in support of 
National Grid's and National Fuel's requests. Con Ed and O&R assert 
that a release to a ``wholesale marketer acting as agent for a retail 
marketer participating in a state-approved retail choice program is 
equivalent to a capacity release directly to a retail marketer.'' \23\ 
They assert that based on the principles of agency law the principal 
and agent are equally bound by the contract made by an agent acting 
within the scope of an agency relationship, and thus a wholesale 
marketer that obtains capacity as a replacement shipper, when acting as 
agent for the retail marketer, is obtaining capacity for the direct 
benefit of the retail marketer and state retail access program. They 
also support the arguments regarding the potential creditworthiness 
difficulties of the retail choice marketers. Con Ed and O&R seek 
company specific waivers in the event the Commission denies the 
clarification requests.
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    \23\ Con Ed/O&R support for clarification at 4.
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    24. NYSEG and RG&E lend similar support to the clarification 
requests claiming that state retail access releases involve storage as 
well as transportation and that without the ability to use an agent to 
obtain the capacity and serve the retail load many retail marketers may 
not be able to participate in the program. They also seek a waiver in 
the event the Commission denies clarification.
    25. Energy America filed support for the clarification requests 
stating that it has acted as agent for Direct Energy Services and other 
retail marketers with respect to sourcing needs and managing 
transportation and storage capacity. Energy America states that as 
agent, it signs an agency agreement with the LDC making clear that it 
is acting as an agent to provide service to the retail marketer under 
the retail access program. The LDC then releases capacity to the agent 
who transports and sells gas to the retail marketer at the city gate. 
Energy America asserts that without a clarification or waiver, retail 
marketers may be unable to participate in retail access programs.
    26. The NYSEMC filed comments requesting that the Commission reject 
National Grid's clarification. It asserts that National Grid seeks a 
blanket exemption for all marketers acting as agents in retail choice 
programs, not a company specific waiver as suggested in Order No. 712-
A. Further, NYSEMC takes issue with the claim that the Commission 
should grant the clarification because some marketers may not be able 
to meet the financial or technical requirements of interstate 
pipelines. It asserts that lack of financial capability is not a reason 
to expand the scope of exemptions granted by Order No. 712.
    27. NYSEMC argues that granting a broad exemption as requested by 
the New York utilities that also operate in Pennsylvania and elsewhere 
would effectively result in a blanket waiver of the type denied in 
Order No. 712-A. It also argues that granting the requested relief 
would increase the risk of defaults by permitting less creditworthy 
suppliers access to systems they would not otherwise be able to obtain. 
It claims that it would not be in the public interest to allow 
circumvention of creditworthiness standards in the current credit 
climate and that relaxed credit requirements were actually one of the 
causes of the current economic situation. It further argues that the 
Commission would hinder the continued development of a viable and 
robust competitive market by affording certain marketers preferential 
credit treatment.
    28. National Grid answers NYSEMC's comments, claiming that NYSEMC 
mischaracterizes National Grid's clarification request by framing it as 
a request for an open-ended exemption. National Grid asserts that it is 
requesting an exemption only where the wholesale marketer supplier 
advises the LDC that the marketer has an obligation to supply gas to 
the retail marketer that is equivalent to the retail marketer's 
obligation to supply gas to the releasing LDC's customers. National 
Grid claims such obligation could be created by an agency relationship 
or some other contractual framework. National Grid also states that 
NYSEMC's concerns about creditworthiness of small customers are 
misplaced because the wholesale supplier would still be required to 
meet the pipeline's creditworthiness standards. National Grid also 
notes that granting its clarification would provide retail customers 
with a greater choice of providers.

Commission Determination

    29. The Commission clarifies that the exemptions from bidding and 
the prohibition against tying for releases to

[[Page 18132]]

marketers participating in state-regulated retail access programs apply 
to any release where the marketer replacement shipper is obligated to 
use the capacity to provide the gas supply requirement of retail 
consumers in the program. Even if the marketer does not itself make 
sales directly to the subject retail consumers, this condition can be 
satisfied so long as the marketer has a contractual obligation to use 
the full amount of the released capacity to supply gas to the retail 
access marketer and the retail access marketer is, in turn, obligated 
to supply that gas to the retail consumers pursuant to a state-
regulated retail access program.
    30. As stated above, in Order Nos. 712 and 712-A the Commission 
exempted from bidding releases ``to a marketer participating in a 
state-regulated retail access program as defined in paragraph (h)(4) of 
this section * * *.'' \24\ In section 284.8(h)(4) of the revised 
regulations, the Commission defined releases to a ``marketer 
participating in a state-regulated retail access program'' as ``any 
prearranged capacity release that will be utilized by the replacement 
shipper to provide the gas supply requirement of retail consumers 
pursuant to a retail access program * * *.'' \25\ This definition 
applies to any replacement shipper which is obligated to use the 
released capacity to transport gas which will be used to provide the 
gas supply requirement of the retail consumers, whether that shipper 
makes the retail sales itself or sells the gas to the retail marketer 
who then resells the gas to the retail consumers.\26\ The Commission's 
rationale in Order No. 712 for granting the exemptions from the tying 
prohibition and bidding requirements for capacity releases by LDCs to 
implement state-approved retail access programs applies equally to the 
situation where an LDC releases capacity directly to the retail 
marketer or to another entity which is obligated to transport the gas 
on behalf of the retail marketer. The essential requirement is that the 
replacement shipper either (1) is itself the retail marketer or (2) has 
a contractual relationship with the retail marketer and/or the LDC 
requiring it to use up to the full amount of the released capacity to 
satisfy the retail marketer's obligations under the state-approved 
retail access program to provide the gas supply requirement of retail 
consumers.
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    \24\ See 18 CFR 284.8(h)(1).
    \25\ 18 CFR 284.8(h)(4).
    \26\ Some of the parties requesting clarification describe an 
``agency'' relationship whereby the agent would obtain the released 
capacity and then sell gas to its principal, the retail marketer. 
See National Fuel's request at 7. This arrangement, as well as what 
we understand as a traditional agency arrangement, where the 
principal would continue to hold title to the capacity and the gas, 
and thus there would be no need for a ``resale'' to the retail 
marketer (principal), are both acceptable to the Commission as 
releases eligible for the exemptions from tying and bidding provided 
the ``agent'' is obligated to serve the retail marketer's needs as 
described above under the retail access program.
---------------------------------------------------------------------------

    31. The Commission rejects the argument that granting this 
clarification will allow circumvention of interstate pipeline 
creditworthiness standards. If a retail marketer is unable to satisfy 
these standards, the replacement shipper supplier will be required to 
satisfy the pipeline's creditworthiness criteria. If no party can meet 
these standards then the pipeline does not have to allow the release.
    32. The Commission also grants National Grid's requested 
clarification that an LDC that releases to an asset manager can require 
the asset manager to release capacity to marketers serving under the 
retail choice program and that such a release will qualify for the 
exemptions from the tying prohibition and bidding requirements. This 
condition is one that can be addressed in the agreement between the 
releasing shipper and asset manager, and will allow LDCs and asset 
managers to operate efficiently to effectuate the goals of retail 
access programs.
    33. The clarifications granted above render the various requests 
for waiver moot.

Termination of Dockets

    34. The Commission initiated Docket Nos. RM06-21 and RM07-4 to 
address a petition filed by Pacific Gas and Electric Co. and Southwest 
Gas Corporation concerning the potential removal of the maximum rate 
ceiling on capacity release transactions and a petition filed by the 
Marketer Petitioners seeking clarification of the operation of the 
Commission's capacity release rules in the context of asset management 
services. The issues raised in the petitions have been fully addressed 
in the instant docket. Accordingly, the Commission hereby terminates 
Docket Nos. RM06-21 and RM07-4.

The Commission orders:

    (A) The requests for rehearing of Order No. 712-A are denied and 
the requests for clarification of Order No. 712-A are granted in part 
and denied in part as discussed above.
    (B) Docket Nos. RM06-21 and RM07-4 are hereby terminated.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. E9-9111 Filed 4-20-09; 8:45 am]
BILLING CODE 6717-01-P


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