[Federal Register Volume 75, Number 87 (Thursday, May 6, 2010)]
[Proposed Rules]
[Pages 24828-24835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-10500]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 37

[Docket No. RM10-22-000]


Promoting a Competitive Market for Capacity Reassignments

April 29, 2010.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of Proposed Rulemaking.

-----------------------------------------------------------------------

SUMMARY: Based on the Commission's experience to date and a two-year 
study, released April 15, 2010, the Federal Energy Regulatory 
Commission proposes in this Notice of Proposed Rulemaking to lift the 
price cap for all transmission customers reassigning transmission 
capacity beyond October 1, 2010. The reforms proposed in this order are 
intended to facilitate the development of a market for capacity 
reassignments as a competitive alternative to primary capacity.

DATES: Comments are due July 6, 2010.

ADDRESSES: You may submit comments, identified by docket number by any 
of the following methods:
    <bullet> Agency Web site: Documents created electronically using 
word processing software should be filed in native applications or 
print-to-PDF format and not in a scanned format.
    <bullet> Mail/Hand Delivery: Commenters unable to file comments 
electronically must mail or hand deliver an original and 14 copies of 
their comments to: Federal Energy Regulatory Commission, Office of the 
Secretary, 888 First Street, NE., Washington, DC 20426.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Comment 
Procedures Section of this document.

FOR FURTHER INFORMATION CONTACT: 

Laurel Hyde (Technical Information), Office of Energy Market 
Regulation, Federal Energy Regulatory Commission, 888 First Street, 
NE., Washington, DC 20426, (202) 502-8146,
A. Cory Lankford (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 502-6711.

SUPPLEMENTARY INFORMATION:

    1. Based on the Commission's experience to date and a two-year 
study, released April 15, 2010,\1\ the Federal Energy Regulatory 
Commission (Commission) proposes in this Notice of Proposed Rulemaking 
(NOPR) to lift the price cap for all transmission customers reassigning 
transmission capacity beyond October 1, 2010. The reforms proposed in 
this order are intended to facilitate the development of a market for 
capacity reassignments as a competitive alternative to primary 
capacity.
---------------------------------------------------------------------------

    \1\ FERC Staff, Staff Findings on Capacity Reassignment (2010), 
available at: http://www.ferc.gov (Staff Report).
---------------------------------------------------------------------------

I. Background

    2. In Order No. 888, the Commission concluded that a transmission 
provider's pro forma Open Access Transmission Tariff (OATT) must 
explicitly permit the voluntary reassignment of all or part of a 
holder's firm point-to-point capacity rights to any eligible 
customer.\2\ The Commission also found that allowing holders of firm 
transmission capacity rights to reassign capacity would help parties 
manage the financial risks associated with their long-term commitment, 
reduce the market power of transmission providers by enabling customers 
to compete, and foster efficient capacity allocation.
---------------------------------------------------------------------------

    \2\ Promoting Wholesale Competition Through Open Access Non-
Discriminatory Transmission Services by Public Utilities; Recovery 
of Stranded Costs by Public Utilities and Transmitting Utilities, 
Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ] 
31,036, at 31,696 (1996), order on reh'g, Order No. 888-A, 62 FR 
12274 (Mar. 14, 1997), FERC Stats. & Regs. ] 31,048 (1997), 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 
(DC Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).
---------------------------------------------------------------------------

    3. With respect to the appropriate rate for capacity reassignment, 
the Commission concluded it could not permit reassignments at market-
based rates because it was unable to determine that the market for 
reassigned capacity was sufficiently competitive so that assignors 
would not be able to exert market power. Instead, the Commission capped 
the rate at the highest of (1) the original transmission rate charged 
to the purchaser (assignor), (2) the transmission provider's maximum 
stated firm transmission rate in effect at the time of the 
reassignment, or (3) the assignor's own opportunity costs capped at the 
cost of expansion (price cap). The Commission further explained that 
opportunity cost pricing had been permitted at ``the higher of embedded 
costs or legitimate and verifiable opportunity costs, but not the sum 
of the two (i.e., `or' pricing is permitted;

[[Page 24829]]

`and' pricing is not).'' \3\ In Order No. 888-A, the Commission 
explained that opportunity costs for capacity reassigned by a customer 
should be measured in a manner analogous to that used to measure the 
transmission provider's opportunity cost.\4\
---------------------------------------------------------------------------

    \3\ Order No. 888, FERC Stats. & Regs. ] 31,036 at 31,740.
    \4\ Order No. 888-A, FERC Stats. & Regs. ] 31,048 at 30,224.
---------------------------------------------------------------------------

    4. To foster the development of a more robust secondary market for 
transmission capacity, the Commission, in Order No. 890, concluded that 
it was appropriate to lift the price cap for all transmission customers 
reassigning transmission capacity.\5\ The Commission stated that this 
would allow capacity to be allocated to those entities that value it 
most, thereby sending more accurate price signals to identify the 
appropriate location for construction of new transmission facilities to 
reduce congestion.\6\ The Commission also found that market forces, 
combined with the requirements of the pro forma OATT as modified in 
Order No. 890, would limit the ability of assignors to exert market 
power, including affiliates of the transmission provider.
---------------------------------------------------------------------------

    \5\ Preventing Undue Discrimination and Preference in 
Transmission Service, Order No. 890, 72 FR 12266 (Mar. 15, 2007), 
FERC Stats. & Regs. ] 31,241, at P 808 (2007), order on reh'g, Order 
No. 890-A, 73 FR 2984 (Jan. 16, 2008), 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 
reh'g, Order No. 890-D, 129 FERC ] 61,126 (2009).
    \6\ Order No. 890, FERC Stats. & Regs. ] 31,241 at P 808.
---------------------------------------------------------------------------

    5. To enhance oversight and monitoring activities, the Commission 
adopted reforms to the underlying rules governing capacity 
reassignments.\7\ First, the Commission required that all sales or 
assignments of capacity be conducted through or otherwise posted on the 
transmission provider's OASIS on or before the date the reassigned 
service commences.\8\ Second, the Commission required that assignees of 
transmission capacity execute a service agreement prior to the date on 
which the reassigned service commences.\9\ Third, in addition to 
existing OASIS posting requirements, the Commission required 
transmission providers to aggregate and summarize in an electric 
quarterly report the data contained in these service agreements.\10\
---------------------------------------------------------------------------

    \7\ Id. P 815.
    \8\ Id.
    \9\ Id. P 816.
    \10\ Id. P 817.
---------------------------------------------------------------------------

    6. The Commission also directed staff to closely monitor the 
reassignment-related data submitted by transmission providers in their 
quarterly reports to identify any problems in the development of the 
secondary market for transmission capacity and, in particular, the 
potential exercise of market power.\11\ Thus, the Commission directed 
staff to prepare, within six months of receipt of two years of 
quarterly reports, a report summarizing its findings.\12\ In addition, 
the Commission encouraged market participants to provide feedback 
regarding the development of the secondary capacity market and, in 
particular, to contact the Commission's Enforcement Hotline if concerns 
arise.
---------------------------------------------------------------------------

    \11\ Id. P 820.
    \12\ Id.
---------------------------------------------------------------------------

    7. In Order No. 890-A, the Commission affirmed its decision to 
remove the price cap on reassignments of transmission capacity but 
granted rehearing to limit the period during which reassignments may 
occur above the cap.\13\ The Commission concluded that it would be most 
appropriate to lift the price cap on reassignments of capacity only to 
accommodate the Commission staff study period. Accordingly, the 
Commission amended section 23.1 of the pro forma OATT to reinstate the 
price cap as of October 1, 2010.\14\ The Commission stated that, upon 
review of the staff report and any feedback from the industry, the 
Commission would determine whether it would be appropriate to continue 
to allow reassignments of capacity above the price cap beyond that 
date.
---------------------------------------------------------------------------

    \13\ Order No. 890-A, FERC Stats. & Regs. ] 31,261 at P 388, 
390.
    \14\ Id. P 390.
---------------------------------------------------------------------------

    8. The Commission also clarified that, as of the effective date of 
the reforms adopted in Order No. 890, all reassignments of capacity 
must take place under the terms and conditions of the transmission 
provider's OATT. As a result, there was no longer a need for the 
assigning party to have on file with the Commission a rate schedule 
governing reassigned capacity. To the extent that a reseller has a 
market-based rate tariff on file, the provisions of that tariff, 
including a price cap or reporting obligations, will not apply to the 
reassignment since such transactions no longer take place pursuant to 
the authorization of that tariff.
    9. In Order No. 890-B, the Commission clarified that the pro forma 
OATT does not, and will not, permit the withholding of transmission 
capacity by the transmission provider and that it effectively 
establishes a price ceiling for long-term reassignments at the 
transmission provider's cost of expanding its system.\15\ The 
Commission further found that the fact that a transmission provider's 
affiliate may profit from congestion on the system does not relieve the 
transmission provider of its obligation to offer all available 
transmission capacity and expand its system as necessary to accommodate 
requests for service.\16\ The Commission pointed out that customers 
that do not wish to participate in the secondary market may continue to 
take service from the transmission provider directly, just as if the 
price cap had not been lifted.\17\
---------------------------------------------------------------------------

    \15\ Order No. 890-B, 123 FERC ] 61,299 at P 78.
    \16\ Id.
    \17\ Id. P 79.
---------------------------------------------------------------------------

    10. With regard to the report to be prepared by Commission staff, 
the Commission clarified that staff should focus on the competitive 
effects of removing the price cap for reassigned capacity.\18\ The 
Commission stated that staff should consider the number of 
reassignments occurring over the study period, the magnitude and 
variability of resale prices, the term of the reassignments, and any 
relationship between resale prices and price differentials in related 
energy markets. In addition, the Commission directed staff to examine 
the nature and scope of reassignments undertaken by the transmission 
provider's affiliates and include in its report any evidence of abuse 
in the secondary market for transmission capacity, whether by those 
affiliates or other customers.
---------------------------------------------------------------------------

    \18\ Id. P 83.
---------------------------------------------------------------------------

    11. The Commission also granted rehearing and directed transmission 
providers to include in their electric quarterly reports the identity 
of the reseller and indicate whether the reseller is affiliated with 
the transmission provider.\19\ The Commission also directed each 
transmission provider to include in their electric quarterly reports 
the rate that would have been charged under its OATT had the secondary 
customer purchased primary service from the transmission provider for 
the term of the reassignment.\20\ The Commission directed transmission 
providers to submit this additional data for all resales during the 
study period and to update, as necessary, any previously-filed electric 
quarterly reports on or before the date they submitted their next 
electric quarterly reports.
---------------------------------------------------------------------------

    \19\ Id. P 84.
    \20\ Id.
---------------------------------------------------------------------------

II. Discussion

    12. Based on the Commission's experience and the two-year study, 
the

[[Page 24830]]

Commission proposes to permanently remove the price cap on the 
reassignments of capacity and revise section 23 of the pro forma OATT 
accordingly, as indicated in Appendix A. In addition, the Commission 
proposes to direct transmission providers to submit corresponding 
revisions to their OATT's within 30 days of publication of the Final 
Rule in the Federal Register.
    13. The secondary market for capacity reassignments experienced 
strong growth during the study period. Both the number of transactions 
and capacity volume reassigned rose throughout the two and one half 
year time span. The number of reassignments increased dramatically from 
just over 200 in 2007 to almost 32,000 in 2009. Almost 36 TWh flowed on 
reassigned paths in 2009, up from 3 TWh in 2007. Moreover, the majority 
of resale prices, 99 percent, were at or below the price cap. While few 
of the reassignments were at prices above the cap, it appears from the 
data that reassignment prices comported with pricing differentials 
between markets. For instance, there were numerous reassignments 
between points in New England and Quebec with prices comparable to the 
average spread in energy prices between the regions. These data suggest 
that resale prices reflect market fundamentals rather than the exercise 
of market power.
    14. During the study period, there were 32 transactions of 
reassigned capacity by an affiliate of a transmission provider 
reassigned for more than the tariff rate. However, the percentage of 
such over-cap reassignments (0.5 percent) was in line with that of 
over-cap reassignments by non-affiliates (0.4 percent), leading us to 
believe that affiliate abuse is not an issue. For these reasons, the 
Commission proposes to find that the Staff Report supports the 
Commission's decision to lift the price cap beyond October 1, 2010 on 
all capacity reassignments.
    15. The Commission seeks comment on this proposal. Additionally, 
given that the levels of reassignment and growth of reassignment varies 
substantially across transmission providers, we believe that there is 
significant potential for further growth in the reassignment of 
capacity. Accordingly, the Commission also seeks comments as to whether 
there are any other reforms that it should undertake to create a more 
efficient and vibrant secondary market for transmission capacity. Are 
there non-price limitations or regional factors that may be continuing 
to limit the utility of reassignment? To the extent any limitations 
exist, the Commission seeks comment on how they should be addressed. 
For example, are there reforms to the redirect process that would 
enable all firm customers to use their firm capacity more flexibly and 
thereby facilitate capacity reassignment by making point changes by the 
buyer of reassigned capacity more efficient? In the natural gas 
industry, the Commission has established a system of secondary firm 
point priorities to provide greater flexibility in the use of firm 
capacity.\21\ We request comment on whether such an approach could be 
used effectively in the electric industry and what impact, if any such 
an approach would have on system operations.
---------------------------------------------------------------------------

    \21\ Secondary firm priority means that the shipper has 
scheduling rights to a new point that are superior to interruptible 
service but inferior to primary firm service for shippers using 
points specified in their contract. The use of secondary firm 
service enables shippers obtaining reassigned capacity to establish 
alternate firm capacity points. See Pipeline Service Obligations and 
Revisions to Regulations Governing Self-Implementing Transportation; 
and Regulation of Natural Gas Pipelines After Partial Wellhead 
Decontrol, Order No. 636, 57 FR 13,267 (Apr. 16, 1992), FERC Stats. 
& Regs. ] 30,939, at 30,428 (1992), order on reh'g, Order No. 636-A, 
57 FR 36,128 (Aug. 12, 1992), FERC Stats. & Regs. ] 30,950 (1992), 
order on reh'g, Order No. 636-B, 57 FR 57,911 (Dec. 8, 1992), 61 
FERC ] 61,272 (1992), order on reh'g, 62 FERC ] 61,007 (1993), aff'd 
in part and remanded in part sub nom. United Distribution Cos. v. 
FERC, 88 F.3d 1105 (DC Cir. 1996), order on remand, Order No. 636-C, 
62 FR 10,204 (Mar. 6, 1997), 78 FERC ] 61,186 (1997); see also 
Regulation of Short-Term Natural Gas Transportation Services and 
Regulation of Interstate Natural Gas Transportation Services, Order 
No. 637, 65 FR 10,156 (Feb. 25, 2000), FERC Stats. & Regs. ] 31,091, 
at 31,304-31,306, clarified, Order No. 637-A, 65 FR 35,706 (June 5, 
2000), FERC Stats. & Regs. ] 31,099, reh'g denied, Order No. 637-B, 
65 FR 47,284 (Aug. 2, 2000), 92 FERC ] 61,062 (2000), aff'd in part 
and remanded in part sub nom. Interstate Natural Gas Ass'n of 
America v. FERC, 285 F.3d 18, 350 U.S. App. DC 366 (DC Cir. 2002), 
order on remand, 101 FERC ] 61,127 (2002), order on reh'g, 106 FERC 
] 61,088 (2004), aff'd sub nom. American Gas Ass'n v. FERC, 428 F.3d 
255, 368 U.S. App. DC 176 (DC Cir. 2005).
---------------------------------------------------------------------------

    16. As discussed above, we propose to find that the Commission 
Staff Report supports the Commission's belief that there are no 
significant market power concerns to justify retaining price caps for 
any transmission customer.\22\ With regard to affiliate abuse, the 
Staff Report finds that less than one percent of transactions performed 
by affiliates during the study period were transacted above the tariff 
rate during the study period. While staff did not detect affiliate 
abuse associated with reassignment by affiliates of the transmission 
provider during the study period, the Commission seeks comment on 
whether market participants have experienced any such affiliate abuse 
that would argue for maintaining the price cap on affiliates of the 
transmission provider, or if other safeguards are needed for such 
reassignments. How should reassignment by a transmission provider's 
retail service function (that is not a separate affiliate) be treated?
---------------------------------------------------------------------------

    \22\ See Order No. 890, FERC Stats. & Regs. ] 31,241 at P 809 
(stating that based on ten years of experience regulating capacity 
reassignments, the Commission believes there are no significant 
market power concerns to justify retaining the price caps for any 
transmission customer).
---------------------------------------------------------------------------

    17. Based on the Commission's experience and the two-year study, 
the Commission believes that the absence of a price cap for 
transmission capacity reassignment does not present any major market 
concerns. Nevertheless, the Commission is committed to ensuring just 
and reasonable transmission service that is not unduly discriminatory 
or preferential and, therefore, will continue to monitor the secondary 
market of capacity reassignments for evidence of abuse of market power. 
The Commission receives sufficient information to monitor the secondary 
market for capacity reassignment because pursuant to section 23 of the 
pro forma OATT: (1) All sales of capacity must be conducted through or 
otherwise posted on the transmission provider's OASIS on or before the 
date of service; and, (2) assignees of transmission capacity must 
execute a service agreement prior to the date on which the reassigned 
service commences. In addition, transmission providers must aggregate 
and summarize in an electric quarterly report the data contained in 
these service agreements.\23\
---------------------------------------------------------------------------

    \23\ 18 CFR 35.10b; see also, Order No. 890, FERC Stats. & Regs. 
] 31,241 at P 817; Notice Providing Guidance on the Filing of 
Information on Transmission Capacity Reassignments in Electric 
Quarterly Reports, 124 FERC ] 61,244 (2008).
---------------------------------------------------------------------------

III. Information Collection Statement

    18. The following collection of information contained in this 
proposed rule is subject to review by the Office of Management and 
Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 
1995.\24\ OMB's regulations require OMB to approve certain information 
collection requirements imposed by agency rule.\25\
---------------------------------------------------------------------------

    \24\ 44 U.S.C. Sec.  3507(d) (2000).
    \25\ 5 CFR 1320.11 (2009).

---------------------------------------------------------------------------

[[Page 24831]]

    Burden Estimate: The public reporting and records retention burdens 
for the proposed reporting requirements and the records retention 
requirement are as follows.\26\
---------------------------------------------------------------------------

    \26\ These burden estimates apply only to this NOPR and do not 
reflect upon all of FERC-516 or FERC-717.

----------------------------------------------------------------------------------------------------------------
                                                 Number of        Number of        Hours per       Total annual
               Data collection                  respondents       responses         response          hours
----------------------------------------------------------------------------------------------------------------
Conforming tariff changes...................             176                1               10            1,760
----------------------------------------------------------------------------------------------------------------

    Cost to Comply: $200,640. 1,760 hours @ $114 an hour (average cost 
of attorney ($200 per hour), consultant ($150), technical ($80), and 
administrative support ($25)).
    OMB's regulations require it to approve certain information 
collection requirements imposed by an agency rule. The Commission is 
submitting notification of this proposed rule to OMB. If the proposed 
requirements are adopted they will be mandatory requirements.
    Title: FERC-516, Electric Rate Schedules and Tariff Filings; FERC-
717, Standards for Business Practices and Communication Protocols for 
Public Utilities.
    Action: Proposed Collections.
    OMB Control Nos. 1902-0096 and 1902-0173.
    Respondents: Transmission Providers.
    Frequency of responses: One time.
    Necessity of the Information:
    19. The Federal Energy Regulatory Commission is proposing 
amendments to the pro forma OATT to ensure that transmission services 
are provided on a basis that is just, reasonable and not unduly 
discriminatory or preferential. The purpose of this proposed rulemaking 
is to strengthen the pro forma OATT by encouraging more robust 
competition. We propose to achieve this goal by removing the price cap 
previously imposed on reassignments of transmission capacity.
    20. Interested persons may obtain information on the reporting 
requirements by contacting the following: Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426 [Attention: 
Michael Miller, Office of the Executive Director, Phone: (202) 502-
8415, fax: (202) 273-0873, e-mail: <a href="/cdn-cgi/l/email-protection#e08d89838881858cce8d898c8c8592a086859283ce878f96"><span class="__cf_email__" data-cfemail="026f6b616a63676e2c6f6b6e6e677042646770612c656d74">[email protected]</span></a>]
    21. For submitting comments concerning the collections of 
information and the associated burden estimate(s), please send your 
comments to the contact listed above and to the Office of Information 
and Regulatory Affairs, Office of Management and Budget, 725 17th 
Street, NW., Washington, DC 20503 [Attention: Desk Officer for the 
Federal Energy Regulatory Commission, phone: (202) 395-4650, fax: (202) 
395-7285. Due to security concerns, comments should be sent 
electronically to the following e-mail address: <a href="/cdn-cgi/l/email-protection#dbb4b2a9ba84a8aeb9b6b2a8a8b2b4b59bb4b6b9f5beb4abf5bcb4ad"><span class="__cf_email__" data-cfemail="533c3a21320c2026313e3a20203a3c3d133c3e317d363c237d343c25">[email protected]</span></a>. Please reference the docket number of this 
proposed rulemaking in your submission.

IV. Environmental Analysis

    22. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\27\ The 
Commission concludes that neither an Environmental Assessment nor an 
Environmental Impact Statement is required for this NOPR under section 
380.4(a)(15) of the Commission's regulations, which provides a 
categorical exemption for approval of actions under sections 205 and 
206 of the FPA relating to the filing of schedules containing all rates 
and charges for the transmission or sale subject to the Commission's 
jurisdiction, plus the classification, practices, contracts and 
regulations that affect rates, charges, classifications and 
services.\28\
---------------------------------------------------------------------------

    \27\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
    \28\ 18 CFR 380.4(a)(15) (2009).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act Analysis

    23. The Regulatory Flexibility Act of 1980 (RFA) \29\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
This proposed rule would apply to public utilities that own, control or 
operate interstate transmission facilities, not to electric utilities 
per se. The total number of public utilities that, absent waiver, would 
have to modify their current OATTs by filing the revised pro forma OATT 
is 176.\30\ Of these only six public utilities, or less than two 
percent, dispose of four million MWh or less per year.\31\ The 
Commission does not consider this a substantial number, and in any 
event, these small entities may seek waiver of these requirements.\32\ 
Moreover, the criteria for waiver that would be applied under this 
rulemaking for small entities is unchanged from that used to evaluate 
requests for waiver under Order Nos. 888 and 889. Thus, small entities 
who have received waiver of the requirements to have on file an open 
access tariff or to operate an OASIS would be unaffected by the 
requirements of this proposed rulemaking.
---------------------------------------------------------------------------

    \29\ 5 U.S.C. 601-612.
    \30\ The sources for this figure are FERC Form No. 1 and FERC 
Form No. 1-F data.
    \31\ Id.
    \32\ The Regulatory Flexibility Act defines a ``small entity'' 
as ``one which is independently owned and operated and which is not 
dominant in its field of operation.'' See 5 U.S.C. 601(3) and 
601(6)(2000); 15 U.S.C. 632(a)(1) (2000). In Mid-Tex Elec. Coop. v. 
FERC, 773 F.2d 327, 340-343 (DC Cir. 1985), the court accepted the 
Commission's conclusion that, since virtually all of the public 
utilities that it regulates do not fall within the meaning of the 
term ``small entities'' as defined in the Regulatory Flexibility 
Act, the Commission did not need to prepare a regulatory flexibility 
analysis in connection with its proposed rule governing the 
allocation of costs for construction work in progress (CWIP). The 
CWIP rules applied to all public utilities. The revised pro forma 
OATT will apply only to those public utilities that own, control or 
operate interstate transmission facilities. These entities are a 
subset of the group of public utilities found not to require 
preparation of a regulatory flexibility analysis for the CWIP rule.
---------------------------------------------------------------------------

VI. Comment Procedures

    24. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due July 6, 2010. Comments must refer to 
Docket No. RM10-22-000, and must include the commenter's name, the 
organization they represent, if applicable, and their address in their 
comments.
    25. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing 
formats. Documents created electronically using word processing 
software should be filed in native applications or print-to-PDF

[[Page 24832]]

format and not in a scanned format. Commenters filing electronically do 
not need to make a paper filing.
    26. Commenters that are not able to file comments electronically 
must send an original and 14 copies of their comments to: Federal 
Energy Regulatory Commission, Office of the Secretary, 888 First 
Street, NE., Washington, DC 20426.
    27. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VII. Document Availability

    28. 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 FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
    29. From FERC'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.
    30. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or e-mail at 
<a href="/cdn-cgi/l/email-protection#61070413020e0f0d080f04121411110e131521070413024f060e17"><span class="__cf_email__" data-cfemail="ea8c8f988985848683848f999f9a9a85989eaa8c8f9889c48d859c">[email protected]</span></a>, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. E-mail the Public Reference Room at 
<a href="/cdn-cgi/l/email-protection#55252037393c367b2730333027303b3630273a3a3815333027367b323a23"><span class="__cf_email__" data-cfemail="027277606e6b612c7067646770676c6167706d6d6f42646770612c656d74">[email protected]</span></a>.

List of Subjects in 18 CFR Part 37

    By direction of the Commission.

Nathaniel J. Davis, Sr.,
Deputy Secretary.

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

BILLING CODE 6717-01-P

[[Page 24833]]

[GRAPHIC] [TIFF OMITTED] TP06MY10.001


[[Page 24834]]


[GRAPHIC] [TIFF OMITTED] TP06MY10.002


[[Page 24835]]


[GRAPHIC] [TIFF OMITTED] TP06MY10.003

[FR Doc. 2010-10500 Filed 5-5-10; 8:45 am]
BILLING CODE 6717-01-C


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>