[Federal Register Volume 77, Number 88 (Monday, May 7, 2012)]
[Rules and Regulations]
[Pages 26674-26686]
[FR Doc No: 2012-9847]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

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

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

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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

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

FOR FURTHER INFORMATION CONTACT:

William Sauer (Technical Information), Office of Enforcement, Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426,<PHONE_NUMBER><EMAIL_ADDRESS>Christopher Daignault (Legal Information), Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

                                                               Paragraph
                                                                 Nos.

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

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

Final Rule

Issued April 19, 2012

I. Introduction

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

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

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

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

A. Commission Authority and the Need for Market Data

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

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

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

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

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

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

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

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

C. Confidentiality of Data

1. NOPR
    30. In the NOPR, the Commission stated that much of the information
it will receive is, by its nature, commercially sensitive.\53\
Disclosure of such information could result in competitive harm to
market participants and the market as a whole.\54\ Accordingly, the
Commission proposed that the data sought would not be made publicly
available, except as may be directed by the Commission or a court with
appropriate jurisdiction.\55\
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    \53\ In the past, the Commission has granted requests for
privileged or confidential treatment of similar non-public data.
See, e.g., N.Y. Indep. Sys. Operator, Inc., 131 FERC ] 61,169, at P
15 (2010) (granting such treatment for data relating to specific
generator or other equipment details, transmission system
information, bidding strategies, generator reference levels,
generator costs, guarantee payments, and the associated relevant
time periods); see also S. Cal. Edison Co., 135 FERC ] 61,201, at P
20 (2011); Hydrogen Energy Cal. LLC, 135 FERC ] 61,068, at P 25
(2011); N.Y. Indep. Sys. Operator, Inc., 130 FERC ] 61,029, at P 3
(2010).
    \54\ The Freedom of Information Act (FOIA) allows persons to
file requests to obtain data from the Commission. FOIA exemption 4
protects ``trade secrets and commercial or financial information
obtained from a person [that is] privileged or confidential.'' 5
U.S.C. 552(b)(4) (2006), amended by OPEN Government Act of 2007,
Pub. L. 110-175, 121 Stat. 2524 (2007); accord 18 CFR 388.107(d). We
would expect that commercially-sensitive data, like that described
in the NOPR, which satisfy the requirements of exemption 4 would be
protected from disclosure.
    \55\ Section 301(b) of the FPA, 16 U.S.C. 825(b), provides that
no member, officer, or employee of the Commission may divulge any
fact or information that may come to his knowledge during the course
of examination of books or other accounts, except as may be directed
by the Commission or by a court.
---------------------------------------------------------------------------

    31. The Commission stated in the NOPR that it will make publicly
available the analysis derived from data that the Commission uses, for
example, to support a proposed market rule change, except that the
Commission will ensure that confidential information will remain non-
public. The Commission also noted that it may direct its staff to issue
a public report outside of a rulemaking proceeding with similar
protections for confidential or otherwise protected information.
2. Comments
    32. Several commenters note that some of the data the Commission is
proposing to receive is commercially sensitive and should be protected
from release.\56\ Commenters also argue that it would be beneficial to
publicly release some of the information the Commission is proposing to
receive.\57\ APPA notes, for instance, that the Commission could take a
strong first step in improving market transparency by requiring RTOs
and ISOs to publish bid information, including identification of
bidders, within a reasonable timeframe.\58\ Powerex notes that while
some of the data, if released, would result in competitive harm, much
of the information the Commission is seeking from the RTOs and ISOs is
already publicly available. As such, Powerex argues that public release
of certain data would support better investment decisions and better
responses to price signals, and would create more confidence in the
functioning of markets, which in turn would benefit the whole market
and end-use consumers because better decisions result in lower risk
premiums and lower costs for consumers.\59\
---------------------------------------------------------------------------

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

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

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

    \60\ See EEI/EPSA at 9-11.
    \61\ EEI/EPSA at 11. EEI/EPSA's concern is that ``the Commission
may not be able to maintain the confidentiality of the information
under FOIA. As a practical matter it can be difficult for any agency
to ensure such confidentiality under FOIA with absolute certainty.
As such, EEI and EPSA request that the Commission avoid collecting
sensitive information, require any such information that is reported
to be aggregated to minimize disclosure concerns, and ensure the
appropriate rules and regulations are enacted prior to requiring the
reporting of confidential information.''
    Id.
    \62\ EEI/EPSA at 4.
---------------------------------------------------------------------------

3. Commission Determination
    34. As the Commission stated in the NOPR, much of the information
that the Commission expects to receive in this proposal is, by its
nature, commercially sensitive.\63\ While one may file a request to
obtain data from the Commission,\64\ FOIA exemption 4 protects ``trade
secrets and commercial or financial information obtained from a person
[that is] privileged or confidential.'' \65\ Accordingly, although the
Commission cannot foreclose requests of information relating to ongoing
electronic submissions of non-public data, we expect that all such data
found to satisfy the requirements of exemption 4 would be protected
from disclosure.
---------------------------------------------------------------------------

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

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

D. Data Formatting

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

    \66\ See NOPR, FERC Stats. & Regs. ] 32,681 at P 42.
---------------------------------------------------------------------------

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

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

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

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

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

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

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

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

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\
---------------------------------------------------------------------------

    \73\ RTOs and ISOs, working with Commission staff, may switch to
one of the other two file types. Moreover, in the future another
file type may be determined to be more practicable or desirable.
    \74\ As the IRC noted, XML may be appropriate when presenting
data that is based on a common format (IRC at 3). The use of XML is
unsuitable for this data collection when common formatting does not
exist.
---------------------------------------------------------------------------

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

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

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

E. Web-Based Delivery

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

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

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

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

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

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

F. Data Requested

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G. Implementation Timeline and Phasing

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

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

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

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

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

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

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

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

H. Ongoing Electronic Delivery

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

J. Technical Conference

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

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

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

IV. Information Collection Statement

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

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

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

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

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

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

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

    Action: New Collection.
    OMB Control No.: 1902-0257.
    Respondents for this Rulemaking: RTOs and ISOs.
    Frequency of Information: Initial implementation, compliance
filing, and automated daily updates.
    Necessity of Information: As wholesale electricity markets continue
to develop and evolve, new opportunities arise for anti-competitive or
manipulative behavior. The Commission's market monitoring and
surveillance capabilities and associated data requirements must keep
pace with market developments and evolve along with the markets. The
data requirement set forth in this final rule will allow the Commission
to more effectively identify and address such behavior; to identify
ineffective market rules; to better inform Commission policies and
regulations; and thus to help ensure just and reasonable rates.
    Internal Review: The Commission has made a preliminary
determination that the revisions are necessary to keep pace with ever-
changing possibilities for anti-competitive or manipulative behavior
and to better inform Commission policies and regulations, and thus to
ensure that rates are just and reasonable. The Commission has assured
itself, by means of its internal review, that there is specific,
objective support for the burden estimate associated with the
information requirements.
    94. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
Office of the Executive Director, 888 First Street NE., Washington, DC
20426 [Attention: Ellen Brown, email<EMAIL_ADDRESS>phone:
(202) 502-8663, fax:<PHONE_NUMBER>].
    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:
<EMAIL_ADDRESS>Please reference FERC-921 and the docket
number of this rulemaking (Docket No. RM11-17-000) in your submission.

V. Environmental Analysis

    96. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\121\ The
Commission has categorically excluded certain actions from these
requirements as not having a significant effect on the human
environment.\122\ The actions proposed here fall within a categorical
exclusion in the Commission's regulations, i.e., they involve
information gathering, analysis, and dissemination.\123\ Therefore,
environmental analysis is unnecessary and has not been performed.
---------------------------------------------------------------------------

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

VI. Regulatory Flexibility Act

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

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

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

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<PHONE_NUMBER> (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>
VIII. Effective Date and Congressional Notification

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

List of Subjects in 18 CFR Part 35

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

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

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

PART 35--FILING OF RATE SCHEDULES AND TARIFFS

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

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

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

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

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

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

Appendix A

Commenters on the NOPR

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

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