Market-Based Rate Affiliate Restrictions, 20796-20799 [2010-9083]

Download as PDF 20796 Federal Register / Vol. 75, No. 76 / Wednesday, April 21, 2010 / Proposed Rules DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM10–20–000] Market-Based Rate Affiliate Restrictions April 15, 2010. erowe on DSK5CLS3C1PROD with PROPOSALS-1 AGENCY: Federal Energy Regulatory Commission. ACTION: Notice of proposed rulemaking. SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes to amend its regulations to revise its regulations governing marketbased rates for public utilities pursuant to section 205 of the Federal Power Act (FPA). The Commission proposes to clarify that employees that determine the timing of scheduled outages, or that engage in economic dispatch, fuel procurement, or resource planning may not be shared under the market-based rate affiliate restrictions codified in Order No. 697. DATES: Comments are due June 21, 2010. ADDRESSES: You may submit comments, identified by docket number by any of the following methods: • Agency Web site: https:// www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. • Mail/Hand Delivery: Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. FOR FURTHER INFORMATION CONTACT: Michelle Barnaby (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502– 8407. Paige Bullard (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502–6462. SUPPLEMENTARY INFORMATION: Notice of Proposed Rulemaking April 15, 2010. I. Introduction 1. In this order, the Federal Energy Regulatory Commission (Commission) is proposing to revise § 35.39 of its VerDate Nov<24>2008 14:15 Apr 20, 2010 Jkt 220001 regulations promulgated in Order No. 697 1 in order to reflect the clarification provided in an order to be issued concurrently with this order in response to the Compliance Working Group’s 2 concerns regarding compliance with the market-based rate affiliate restrictions codified in Order No. 697.3 Specifically, the Commission is proposing to revise the separation of functions and information sharing provisions of those affiliate restrictions to explicitly state that employees that determine the timing of scheduled outages or that engage in economic dispatch, fuel procurement, or resource planning may not be shared under the Commission’s market-based rate affiliate restrictions adopted in Order No. 697. II. Background 2. In Order No. 697, the Commission adopted affiliate restrictions that govern the relationship between franchised public utilities with captive customers and their ‘‘market-regulated’’ affiliates, i.e., affiliates whose power sales are regulated in whole or in part on a market-based rate basis. These marketbased rate affiliate restrictions govern the separation of functions, the sharing of market information, sales of nonpower goods or services, and power brokering. The Commission requires that, as a condition of receiving and retaining market-based rate authority, sellers comply with these affiliate 1 Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, Order No. 697, FERC Stats. & Regs. ¶ 31,252 (Order No. 697), clarified, 121 FERC ¶ 61,260 (2007), order on reh’g, Order No. 697–A, FERC Stats. & Regs. ¶ 31,268, clarified, 124 FERC ¶ 61,055, order on reh’g, Order No. 697–B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh’g, Order No. 697–C, FERC Stats. & Regs. ¶ 31,291 (2009), order on reh’g, Order No. 697–D, FERC Stats. & Regs. ¶ 31,305 (2010). 2 The Compliance Working Group states that it consists of 27 energy companies, which include integrated electric businesses, merchant generators, marketing and trading businesses, and natural gas distributors, and explains that the group was formed in mid-2008 ‘‘to develop a model [Commission] compliance program guide.’’ Compliance Working Group Request for Clarification, Docket No. RM04–7–007, at 2 (filed Mar. 9, 2009); Compliance Working Group Amended Request for Clarification, Docket No. RM04–7–007, at 3 (filed Oct. 28, 2009). The members of the Compliance Working Group taking part in its request for clarification are: Allegheny Energy, Inc., American Electric Power Company, Inc., Cleco Corporation, Consumers Energy Company, Dominion Resources, Inc., Duke Energy Corporation, Edison International, El Paso Electric Company, Energy East Corp., Entergy Corporation, Exelon Corporation, FirstEnergy Corp., FPL Group, Inc., Pacific Gas and Electric Co., Progress Energy, Inc., Public Service Enterprise Group Incorporated, and Westar Energy, Inc. 3 Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services By Public Utilities, 131 FERC ¶ 61,021 (2010) (April 15 Clarification Order). PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 restrictions unless explicitly permitted by Commission rule or order. Failure to satisfy the conditions set forth in these affiliate restrictions constitutes a violation of the market-based rate tariff.4 3. On March 9, 2009, the Compliance Working Group submitted a request for clarification in the Commission’s market-based rate rulemaking proceeding regarding which employees can be shared for purposes of compliance with the Commission’s market-based rate affiliate restrictions. On October 28, 2009, the Compliance Working Group submitted an amended request for clarification. In response to the Compliance Working Group’s request, the Commission is providing clarification regarding which employees may not be shared under these affiliate restrictions.5 In this Notice of Proposed Rulemaking (NOPR), we propose to revise the text of the separation of functions and information sharing provisions of the affiliate restrictions contained in § 35.39 of the Commission’s regulations in order to reflect the clarification provided in response to the Compliance Working Group’s request. III. Discussion 4. Under the separation of functions requirement in the market-based rate affiliate restrictions, employees of market-regulated power sales affiliates must operate separately, to the maximum extent practical, from employees of affiliated franchised utilities with captive customers.6 Order No. 697 exempts certain categories of employees from this separation of functions requirement. Employees in these categories are permitted to be shared, and Order No. 697 gives examples of permissibly ‘‘shared employees’’ that are drawn from Order No. 2004, which established the Standards of Conduct rules that were in effect at the time that Order No. 697 was issued.7 In particular, the market-based rate affiliate restrictions provide that 4 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 549–550. 5 April 15 Clarification Order, 131 FERC ¶ 61,021. 6 18 CFR 35.39(c)(2)(i). 7 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 561–566 (citing Standards of Conduct for Transmission Providers, Order No. 2004, FERC Stats. & Regs. ¶ 31,155, at P 96, 99–101, 145–146 (2003), order on reh’g, Order No. 2004–A, FERC Stats. & Regs. ¶ 31,161, at P 134, order on reh’g, Order No. 2004–B, FERC Stats. & Regs. ¶ 31,166, order on reh’g, Order No. 2004–C, FERC Stats. & Regs. ¶ 31,172 (2004), order on reh’g, Order No. 2004–D, 110 FERC ¶ 61,320 (2005), vacated and remanded as it applies to natural gas pipelines sub nom. National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 2006); see id. P 562 (citing 18 CFR 358.4(a)(5) (Order 2004-era Standards of Conduct)). E:\FR\FM\21APP1.SGM 21APP1 Federal Register / Vol. 75, No. 76 / Wednesday, April 21, 2010 / Proposed Rules erowe on DSK5CLS3C1PROD with PROPOSALS-1 ‘‘Franchised public utilities with captive customers are permitted to share support employees, and field and maintenance employees with their market-regulated power sales affiliates. Franchised public utilities with captive customers are also permitted to share senior officers and boards of directors with their market-regulated power sales affiliates; provided, however, that the shared officers and boards of directors must not participate in directing, organizing or executing generation or market functions.’’ 8 Moreover, under the information sharing restriction, ‘‘[a] franchised public utility with captive customers may not share market information with a market-regulated power sales affiliate if the sharing could be used to the detriment of captive customers, unless simultaneously disclosed to the public.’’ However, ‘‘[p]ermissibly shared support employees, field and maintenance employees and senior officers and board of directors under § 35.39(c)(2)(ii) may have access to information covered by the prohibition of § 35.39(d)(1), subject to the no-conduit provision in § 35.39(g).’’ 9 5. In its request for clarification, the Compliance Working Group asked the Commission to clarify which employees are permissibly ‘‘shared employees’’ for purposes of the Commission’s marketbased rate affiliate restrictions. Specifically, it suggests that the Commission should interpret these affiliate restrictions to permit sharing of employees who are neither ‘‘transmission function employees’’ nor ‘‘marketing function employees’’ under the Standards of Conduct.10 The Compliance Working Group stated that the issue arose because shared employees under the market-based rate affiliate restrictions are defined by reference to shared employees under the Order No. 2004-era Standards of Conduct, but as of the effective date of the Standards of Conduct Final Rule, November 26, 2008, the Standards of Conduct no longer use the concept of shared employees. The Compliance Working Group therefore claimed that this inconsistency poses a compliance conundrum that needs to be addressed 8 18 CFR 35.39(c)(2)(ii); see also Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 562. 9 18 CFR 35.39(d). 10 Standards of Conduct for Transmission Providers, Order No. 717, FERC Stats. & Regs. ¶ 31,280 (2008) (Standards of Conduct Final Rule), order on reh’g, Order No. 717–A, FERC Stats. & Regs. ¶ 31,297, order on reh’g, Order No. 717–B, 129 FERC ¶ 61,123 (2009). As discussed below, ‘‘transmission function employees’’ and ‘‘marketing function employees’’ are defined terms under the Standards of Conduct. See 18 CFR 358.3(d); 358.3(i). VerDate Nov<24>2008 14:15 Apr 20, 2010 Jkt 220001 in order to enable companies and their employees to understand, and comply with, the market-based rate affiliate restrictions. 6. As explained in the April 15 Clarification Order, we are denying the Compliance Working Group’s request that the Commission interpret the market-based rate affiliate restrictions to permit the sharing of employees who are neither transmission function employees nor marketing function employees under the Standards of Conduct. However, in order to address the Compliance Working Group’s concerns regarding compliance with the market-based rate affiliate restrictions, the April 15 Clarification Order provides guidance regarding which employees may not be shared under the affiliate restrictions.11 7. Specifically, in the April 15 Clarification Order the Commission denies the Compliance Working Group’s request that it interpret the marketbased rate affiliate restrictions to permit the sharing of employees who are neither transmission function employees nor marketing function employees under the Standards of Conduct because the Standards of Conduct definition of ‘‘marketing function employee’’ does not include certain employees who may not be shared under the market-based rate affiliate restrictions (for instance, employees that make economic dispatch decisions or that determine the timing of scheduled outages). Thus, the Commission explains that granting the Compliance Working Group’s requested interpretation would permit marketbased rate sellers to share employees that may not currently be shared under the affiliate restrictions. 8. The April 15 Clarification Order explains that ‘‘marketing function employee’’ is not a defined term in the market-based rate regulations adopted in Order No. 697, and explains that the restrictions on which employees may be shared under the market-based rate affiliate restrictions are not limited to those employees who are engaged in sales. It states that as clarified in Order No. 697–A, under the market-based rate affiliate restrictions, ‘‘shared employees may not be involved in decisions regarding the marketing or sale of electricity from the facilities, may not make economic dispatch decisions, and may not determine the timing of scheduled outages for facilities.’’ 12 In 11 April 15 Clarification Order, 131 FERC ¶ 61,021 at P 39–42. 12 April 15 Clarification Order 131 FERC ¶ 61,021 at P 37 (citing Order No. 697–A, FERC Stats. & Regs. ¶ 31,268 at P 253). PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 20797 this regard, the April 15 Clarification Order explains that responsibility for economic dispatch or the timing of scheduled outages, for example, is not a ‘‘marketing function’’ under the Standards of Conduct and, therefore, engaging in these activities would not cause an employee to be a marketing function employee subject to the Independent Functioning Rule under the Standards of Conduct (and therefore, those employees could be shared). Thus, consistent with the Commission’s determinations in Order No. 697–A, the April 15 Clarification Order clarifies that, for purposes of compliance with the market-based rate affiliate restrictions, a franchised public utility with captive customers and its marketregulated power sales affiliates may not share employees that make economic dispatch decisions or that determine the timing of scheduled outages.13 9. In addition, as explained in the April 15 Clarification Order, franchised public utilities with captive customers should be prohibited from sharing employees that engage in resource planning or fuel procurement with their market-regulated power sales affiliates. If the franchised public utility and its market-regulated power sales affiliate are permitted to share employees that make strategic decisions about future generation supply, such as deciding when and/or where to build or acquire generating capacity, such strategic decision making by a shared employee could result in generation being built or acquired for the benefit of the marketregulated power sales affiliate, and at the expense of the captive customers of the franchised public utility. In this regard, the Commission notes that the corporate entity has an inherent incentive to decrease its marketregulated power sales affiliate’s costs in order to maximize profits for shareholders. 10. Similarly, a shared employee that procures fuel for both the franchised public utility and the market-regulated power sales affiliate may have the incentive to allocate purchases of lower priced fuel supplies to the market regulated power sales affiliate while allocating purchases of higher priced fuel supplies to the franchised public utility. By contrast, if the two entities are required to independently procure fuel, they would compete for the market’s best priced fuel. 11. Therefore, given that the definition of marketing function employee under the Standards of Conduct does not specifically address 13 Order No. 697–A, FERC Stats. & Regs. ¶ 31,268 at P 253. E:\FR\FM\21APP1.SGM 21APP1 20798 Federal Register / Vol. 75, No. 76 / Wednesday, April 21, 2010 / Proposed Rules employees that determine the timing of scheduled outages or that engage in economic dispatch, fuel procurement, or resource planning, the April 15 Clarification Order clarifies that employees engaging in these activities 14 are prohibited from being shared under the market-based rate affiliate restrictions, absent an explicit waiver from the Commission. 12. In order to reflect this clarification, we propose to revise § 35.39 of our regulations in order to clarify that employees that determine the timing of scheduled outages or that engage in economic dispatch, fuel procurement, or resource planning may not be shared under the market-based rate affiliate restrictions. Accordingly, we propose to revise the separation of functions provision contained in § 35.39(c)(2)(ii) of the regulations to include the provision that franchised public utilities with captive customers are prohibited from sharing employees that determine the timing of scheduled outages or that engage in economic dispatch, fuel procurement, or resource planning with their market-regulated power sales affiliates. 13. We also propose to revise the information sharing provision contained in § 35.39(d)(2) of the regulations to include the provision that employees that determine the timing of scheduled outages or that engage in economic dispatch, fuel procurement, or resource planning may not have access to information covered by the prohibition of § 35.39(d)(1). erowe on DSK5CLS3C1PROD with PROPOSALS-1 IV. Information Collection Statement 14. The Office of Management and Budget’s (OMB) regulations require that OMB approve certain information collection and data retention requirements imposed by an agency.15 Order No. 697’s revisions to the information collection requirements for market-based rate sellers were approved under FERC–919 ‘‘Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities’’ OMB Control Nos. 1902–0234. While this order proposes to revise the regulations for the marketbased rate program in order to provide clarification, it does not add to the existing information collection requirements. Accordingly, a copy of 14 The prohibition on sharing employees that engage in resource planning applies only to the sharing of employees between a franchised public utility and its market-regulated power sales affiliate, and is not intended to alter resource planning activities by transmission providers that are permitted under the Standards of Conduct Final Rule. 15 5 CFR 1320.11. VerDate Nov<24>2008 14:15 Apr 20, 2010 Jkt 220001 this order will be sent to OMB for informational purposes only. V. Environmental Analysis 15. 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.16 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment.17 The actions proposed here fall within the categorical exclusions in the Commission’s regulations for rules that are clarifying, corrective, or procedural, or do not substantially change the effect of legislation or regulations being amended.18 In addition, the proposed rule is categorically excluded as an electric rate filing submitted by a public utility under sections 205 and 206 of the FPA.19 As explained above, this proposed rule revises the regulations for the market-based rate program in order to provide clarification. Accordingly, no environmental assessment is necessary and none has been prepared in this NOPR. VI. Regulatory Flexibility Act Analysis 16. The Regulatory Flexibility Act of 1980 (RFA) 20 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 proposed rule and that minimize any significant economic impact on a substantial number of small entities. Most filing companies regulated by the Commission do not fall within the RFA’s definition of small entity.21 Moreover, as noted above, this proposed rule revises the regulations for the market-based rate program in order to provide clarification of an existing requirement that affected entities, including small entities, are currently required to comply with. Because the proposed revisions clarify an existing requirement, and do not add to the 16 Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, FERC Stats. & Regs., Regulations Preambles July 1996–December 2000 ¶ 30,783 (1987). 17 18 CFR 380.4. 18 See 18 CFR 380.4(a)(2)(ii). 19 18 CFR 380.4(a)(15). 20 5 U.S.C. 601–12. 21 5 U.S.C. 601(3), citing to section 3 of the Small Business Act, 15 U.S.C. 632. Section 3 of the Small Business Act defines a ‘‘small-business concern’’ as a business which is independently owned and operated and which is not dominant in its field of operation. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 existing information collection or filing requirements, the Commission concludes that the proposed rule will not have a significant economic impact on a substantial number of small entities. As a result, no regulatory flexibility analysis is required. VII. Comment Procedures 17. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due June 21, 2010. Comments must refer to Docket No. RM10–20–000, and must include the commenters’ name, the organization they represent, if applicable, and their address in their comments. 18. The Commission encourages comments to be filed electronically via the eFiling link on the Commission’s Web site at https://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing. 19. Commenters that are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission; 888 First Street, NE., Washington, DC 20426. 20. All comments will be placed in the Commission’s public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. VIII. Document Availability 21. 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 (https:// www.ferc.gov) and in the Commission’s Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426. 22. 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, E:\FR\FM\21APP1.SGM 21APP1 Federal Register / Vol. 75, No. 76 / Wednesday, April 21, 2010 / Proposed Rules type the docket number excluding the last three digits of this document in the docket number field. 23. User assistance is available for eLibrary and the Commission’s Web site during normal business hours from FERC Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502– 8371, TTY (202) 502–8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov. the prohibition of § 35.39(d)(1), subject to the no-conduit provision in § 35.39(g). Employees that determine the timing of scheduled outages or that engage in economic dispatch, fuel procurement, or resource planning may not have access to information covered by the prohibition of § 35.39(d)(1). * * * * * [FR Doc. 2010–9083 Filed 4–20–10; 8:45 am] BILLING CODE 6717–01–P List of subjects in 18 CFR Part 35 Electric power rates, Electric utilities, Reporting and recordkeeping requirements. DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 By direction of the Commission. Nathaniel J. Davis, Sr., Deputy Secretary. RIN 1625–AA00 Safety Zone; AVI July Fireworks Display, Laughlin, NV Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: PART 35—FILING OF RATE SCHEDULES AND TARIFFS ACTION: 1. The authority citation for part 35 continues to read as follows: Authority: 16 U.S.C. 791a–825r, 2601– 2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352. 2. In § 35.39, paragraphs (c)(2)(ii) and (d)(2) are revised to read as follows: § 35.39 Affiliate restrictions. erowe on DSK5CLS3C1PROD with PROPOSALS-1 * * * * * (c) * * * (2) * * * (ii) Franchised public utilities with captive customers are permitted to share support employees, and field and maintenance employees with their market-regulated power sales affiliates. Franchised public utilities with captive customers are also permitted to share senior officers and boards of directors with their market-regulated power sales affiliates; provided, however, that the shared officers and boards of directors must not participate in directing, organizing or executing generation or market functions. Franchised public utilities with captive customers are prohibited from sharing employees that determine the timing of scheduled outages or that engage in economic dispatch, fuel procurement, or resource planning with their market-regulated power sales affiliates. * * * * * (d) * * * (2) Permissibly shared support employees, field and maintenance employees and senior officers and board of directors under § 35.39(c)(2)(ii) may have access to information covered by VerDate Nov<24>2008 14:15 Apr 20, 2010 Jkt 220001 SUMMARY: The Coast Guard proposes to establish a safety zone, on the navigable waters of the lower Colorado River, Laughlin, NV, in support of a fireworks display near the AVI Resort and Casino. This safety zone is necessary to provide for the safety of the participants, crew, spectators, participating vessels, and other vessels and users of the waterway. Persons and vessels would be prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative. DATES: Comments and related material must be received by the Coast Guard on or before May 21, 2010. Requests for public meetings must be received by the Coast Guard on or before May 12, 2010. ADDRESSES: You may submit comments identified by docket number USCG– 2010–0019 using any one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. • Fax: 202–493–2251. • Mail: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590– 0001. • Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329. To avoid duplication, please use only one of these four methods. See the PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call or e-mail Petty Officer Corey McDonald, Waterways Management, U.S. Coast Guard Sector San Diego, Coast Guard; telephone 619–278–7262, e-mail Corey.R.McDonald@uscg.mil. If you have questions on viewing or submitting material to the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202–366– 9826. SUPPLEMENTARY INFORMATION: Public Participation and Request for Comments [Docket No. USCG–2010–0019] In consideration of the foregoing, the Commission proposes to amend part 35, Chapter I, Title 18, Code of Federal Regulations, as follows: 20799 We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to https:// www.regulations.gov and will include any personal information you have provided. Submitting Comments If you submit a comment, please include the docket number for this rulemaking (USCG–2010–0019), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via https:// www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via https:// www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission. To submit your comment online, go to https://www.regulations.gov, click on the ‘‘submit a comment’’ box, which will then become highlighted in blue. In the ‘‘Document Type’’ drop down menu select ‘‘Proposed Rule’’ and insert ‘‘USCG–2010–0019’’ in the ‘‘Keyword’’ box. Click ‘‘Search’’ then click on the balloon shape in the ‘‘Actions’’ column. If you submit your comments by mail or E:\FR\FM\21APP1.SGM 21APP1

Agencies

[Federal Register Volume 75, Number 76 (Wednesday, April 21, 2010)]
[Proposed Rules]
[Pages 20796-20799]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-9083]



[[Page 20796]]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[Docket No. RM10-20-000]


Market-Based Rate Affiliate Restrictions

April 15, 2010.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes 
to amend its regulations to revise its regulations governing market-
based rates for public utilities pursuant to section 205 of the Federal 
Power Act (FPA). The Commission proposes to clarify that employees that 
determine the timing of scheduled outages, or that engage in economic 
dispatch, fuel procurement, or resource planning may not be shared 
under the market-based rate affiliate restrictions codified in Order 
No. 697.

DATES: Comments are due June 21, 2010.

ADDRESSES: You may submit comments, identified by docket number by any 
of the following methods:
     Agency Web site: https://www.ferc.gov. Documents created 
electronically using word processing software should be filed in native 
applications or print-to-PDF format and not in a scanned format.
     Mail/Hand Delivery: Commenters unable to file comments 
electronically must mail or hand deliver an original and 14 copies of 
their comments to: Federal Energy Regulatory Commission, Secretary of 
the Commission, 888 First Street, NE., Washington, DC 20426.

FOR FURTHER INFORMATION CONTACT: 

Michelle Barnaby (Technical Information), Office of Energy Market 
Regulation, Federal Energy Regulatory Commission, 888 First Street, 
NE., Washington, DC 20426, (202) 502-8407.
Paige Bullard (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 502-6462.

SUPPLEMENTARY INFORMATION: 

Notice of Proposed Rulemaking

April 15, 2010.

I. Introduction

    1. In this order, the Federal Energy Regulatory Commission 
(Commission) is proposing to revise Sec.  35.39 of its regulations 
promulgated in Order No. 697 \1\ in order to reflect the clarification 
provided in an order to be issued concurrently with this order in 
response to the Compliance Working Group's \2\ concerns regarding 
compliance with the market-based rate affiliate restrictions codified 
in Order No. 697.\3\ Specifically, the Commission is proposing to 
revise the separation of functions and information sharing provisions 
of those affiliate restrictions to explicitly state that employees that 
determine the timing of scheduled outages or that engage in economic 
dispatch, fuel procurement, or resource planning may not be shared 
under the Commission's market-based rate affiliate restrictions adopted 
in Order No. 697.
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    \1\ Market-Based Rates for Wholesale Sales of Electric Energy, 
Capacity and Ancillary Services by Public Utilities, Order No. 697, 
FERC Stats. & Regs. ] 31,252 (Order No. 697), clarified, 121 FERC ] 
61,260 (2007), order on reh'g, Order No. 697-A, FERC Stats. & Regs. 
] 31,268, clarified, 124 FERC ] 61,055, order on reh'g, Order No. 
697-B, FERC Stats. & Regs. ] 31,285 (2008), order on reh'g, Order 
No. 697-C, FERC Stats. & Regs. ] 31,291 (2009), order on reh'g, 
Order No. 697-D, FERC Stats. & Regs. ] 31,305 (2010).
    \2\ The Compliance Working Group states that it consists of 27 
energy companies, which include integrated electric businesses, 
merchant generators, marketing and trading businesses, and natural 
gas distributors, and explains that the group was formed in mid-2008 
``to develop a model [Commission] compliance program guide.'' 
Compliance Working Group Request for Clarification, Docket No. RM04-
7-007, at 2 (filed Mar. 9, 2009); Compliance Working Group Amended 
Request for Clarification, Docket No. RM04-7-007, at 3 (filed Oct. 
28, 2009). The members of the Compliance Working Group taking part 
in its request for clarification are: Allegheny Energy, Inc., 
American Electric Power Company, Inc., Cleco Corporation, Consumers 
Energy Company, Dominion Resources, Inc., Duke Energy Corporation, 
Edison International, El Paso Electric Company, Energy East Corp., 
Entergy Corporation, Exelon Corporation, FirstEnergy Corp., FPL 
Group, Inc., Pacific Gas and Electric Co., Progress Energy, Inc., 
Public Service Enterprise Group Incorporated, and Westar Energy, 
Inc.
    \3\ Market-Based Rates for Wholesale Sales of Electric Energy, 
Capacity and Ancillary Services By Public Utilities, 131 FERC ] 
61,021 (2010) (April 15 Clarification Order).
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II. Background

    2. In Order No. 697, the Commission adopted affiliate restrictions 
that govern the relationship between franchised public utilities with 
captive customers and their ``market-regulated'' affiliates, i.e., 
affiliates whose power sales are regulated in whole or in part on a 
market-based rate basis. These market-based rate affiliate restrictions 
govern the separation of functions, the sharing of market information, 
sales of non-power goods or services, and power brokering. The 
Commission requires that, as a condition of receiving and retaining 
market-based rate authority, sellers comply with these affiliate 
restrictions unless explicitly permitted by Commission rule or order. 
Failure to satisfy the conditions set forth in these affiliate 
restrictions constitutes a violation of the market-based rate 
tariff.\4\
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    \4\ Order No. 697, FERC Stats. & Regs. ] 31,252 at P 549-550.
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    3. On March 9, 2009, the Compliance Working Group submitted a 
request for clarification in the Commission's market-based rate 
rulemaking proceeding regarding which employees can be shared for 
purposes of compliance with the Commission's market-based rate 
affiliate restrictions. On October 28, 2009, the Compliance Working 
Group submitted an amended request for clarification. In response to 
the Compliance Working Group's request, the Commission is providing 
clarification regarding which employees may not be shared under these 
affiliate restrictions.\5\ In this Notice of Proposed Rulemaking 
(NOPR), we propose to revise the text of the separation of functions 
and information sharing provisions of the affiliate restrictions 
contained in Sec.  35.39 of the Commission's regulations in order to 
reflect the clarification provided in response to the Compliance 
Working Group's request.
---------------------------------------------------------------------------

    \5\ April 15 Clarification Order, 131 FERC ] 61,021.
---------------------------------------------------------------------------

III. Discussion

    4. Under the separation of functions requirement in the market-
based rate affiliate restrictions, employees of market-regulated power 
sales affiliates must operate separately, to the maximum extent 
practical, from employees of affiliated franchised utilities with 
captive customers.\6\ Order No. 697 exempts certain categories of 
employees from this separation of functions requirement. Employees in 
these categories are permitted to be shared, and Order No. 697 gives 
examples of permissibly ``shared employees'' that are drawn from Order 
No. 2004, which established the Standards of Conduct rules that were in 
effect at the time that Order No. 697 was issued.\7\ In particular, the 
market-based rate affiliate restrictions provide that

[[Page 20797]]

``Franchised public utilities with captive customers are permitted to 
share support employees, and field and maintenance employees with their 
market-regulated power sales affiliates. Franchised public utilities 
with captive customers are also permitted to share senior officers and 
boards of directors with their market-regulated power sales affiliates; 
provided, however, that the shared officers and boards of directors 
must not participate in directing, organizing or executing generation 
or market functions.'' \8\ Moreover, under the information sharing 
restriction, ``[a] franchised public utility with captive customers may 
not share market information with a market-regulated power sales 
affiliate if the sharing could be used to the detriment of captive 
customers, unless simultaneously disclosed to the public.'' However, 
``[p]ermissibly shared support employees, field and maintenance 
employees and senior officers and board of directors under Sec.  
35.39(c)(2)(ii) may have access to information covered by the 
prohibition of Sec.  35.39(d)(1), subject to the no-conduit provision 
in Sec.  35.39(g).'' \9\
---------------------------------------------------------------------------

    \6\ 18 CFR 35.39(c)(2)(i).
    \7\ Order No. 697, FERC Stats. & Regs. ] 31,252 at P 561-566 
(citing Standards of Conduct for Transmission Providers, Order No. 
2004, FERC Stats. & Regs. ] 31,155, at P 96, 99-101, 145-146 (2003), 
order on reh'g, Order No. 2004-A, FERC Stats. & Regs. ] 31,161, at P 
134, order on reh'g, Order No. 2004-B, FERC Stats. & Regs. ] 31,166, 
order on reh'g, Order No. 2004-C, FERC Stats. & Regs. ] 31,172 
(2004), order on reh'g, Order No. 2004-D, 110 FERC ] 61,320 (2005), 
vacated and remanded as it applies to natural gas pipelines sub nom. 
National Fuel Gas Supply Corp. v. FERC, 468 F.3d 831 (D.C. Cir. 
2006); see id. P 562 (citing 18 CFR 358.4(a)(5) (Order 2004-era 
Standards of Conduct)).
    \8\ 18 CFR 35.39(c)(2)(ii); see also Order No. 697, FERC Stats. 
& Regs. ] 31,252 at P 562.
    \9\ 18 CFR 35.39(d).
---------------------------------------------------------------------------

    5. In its request for clarification, the Compliance Working Group 
asked the Commission to clarify which employees are permissibly 
``shared employees'' for purposes of the Commission's market-based rate 
affiliate restrictions. Specifically, it suggests that the Commission 
should interpret these affiliate restrictions to permit sharing of 
employees who are neither ``transmission function employees'' nor 
``marketing function employees'' under the Standards of Conduct.\10\ 
The Compliance Working Group stated that the issue arose because shared 
employees under the market-based rate affiliate restrictions are 
defined by reference to shared employees under the Order No. 2004-era 
Standards of Conduct, but as of the effective date of the Standards of 
Conduct Final Rule, November 26, 2008, the Standards of Conduct no 
longer use the concept of shared employees. The Compliance Working 
Group therefore claimed that this inconsistency poses a compliance 
conundrum that needs to be addressed in order to enable companies and 
their employees to understand, and comply with, the market-based rate 
affiliate restrictions.
---------------------------------------------------------------------------

    \10\ Standards of Conduct for Transmission Providers, Order No. 
717, FERC Stats. & Regs. ] 31,280 (2008) (Standards of Conduct Final 
Rule), order on reh'g, Order No. 717-A, FERC Stats. & Regs. ] 
31,297, order on reh'g, Order No. 717-B, 129 FERC ] 61,123 (2009). 
As discussed below, ``transmission function employees'' and 
``marketing function employees'' are defined terms under the 
Standards of Conduct. See 18 CFR 358.3(d); 358.3(i).
---------------------------------------------------------------------------

    6. As explained in the April 15 Clarification Order, we are denying 
the Compliance Working Group's request that the Commission interpret 
the market-based rate affiliate restrictions to permit the sharing of 
employees who are neither transmission function employees nor marketing 
function employees under the Standards of Conduct. However, in order to 
address the Compliance Working Group's concerns regarding compliance 
with the market-based rate affiliate restrictions, the April 15 
Clarification Order provides guidance regarding which employees may not 
be shared under the affiliate restrictions.\11\
---------------------------------------------------------------------------

    \11\ April 15 Clarification Order, 131 FERC ] 61,021 at P 39-42.
---------------------------------------------------------------------------

    7. Specifically, in the April 15 Clarification Order the Commission 
denies the Compliance Working Group's request that it interpret the 
market-based rate affiliate restrictions to permit the sharing of 
employees who are neither transmission function employees nor marketing 
function employees under the Standards of Conduct because the Standards 
of Conduct definition of ``marketing function employee'' does not 
include certain employees who may not be shared under the market-based 
rate affiliate restrictions (for instance, employees that make economic 
dispatch decisions or that determine the timing of scheduled outages). 
Thus, the Commission explains that granting the Compliance Working 
Group's requested interpretation would permit market-based rate sellers 
to share employees that may not currently be shared under the affiliate 
restrictions.
    8. The April 15 Clarification Order explains that ``marketing 
function employee'' is not a defined term in the market-based rate 
regulations adopted in Order No. 697, and explains that the 
restrictions on which employees may be shared under the market-based 
rate affiliate restrictions are not limited to those employees who are 
engaged in sales. It states that as clarified in Order No. 697-A, under 
the market-based rate affiliate restrictions, ``shared employees may 
not be involved in decisions regarding the marketing or sale of 
electricity from the facilities, may not make economic dispatch 
decisions, and may not determine the timing of scheduled outages for 
facilities.'' \12\ In this regard, the April 15 Clarification Order 
explains that responsibility for economic dispatch or the timing of 
scheduled outages, for example, is not a ``marketing function'' under 
the Standards of Conduct and, therefore, engaging in these activities 
would not cause an employee to be a marketing function employee subject 
to the Independent Functioning Rule under the Standards of Conduct (and 
therefore, those employees could be shared). Thus, consistent with the 
Commission's determinations in Order No. 697-A, the April 15 
Clarification Order clarifies that, for purposes of compliance with the 
market-based rate affiliate restrictions, a franchised public utility 
with captive customers and its market-regulated power sales affiliates 
may not share employees that make economic dispatch decisions or that 
determine the timing of scheduled outages.\13\
---------------------------------------------------------------------------

    \12\ April 15 Clarification Order 131 FERC ] 61,021 at P 37 
(citing Order No. 697-A, FERC Stats. & Regs. ] 31,268 at P 253).
    \13\ Order No. 697-A, FERC Stats. & Regs. ] 31,268 at P 253.
---------------------------------------------------------------------------

    9. In addition, as explained in the April 15 Clarification Order, 
franchised public utilities with captive customers should be prohibited 
from sharing employees that engage in resource planning or fuel 
procurement with their market-regulated power sales affiliates. If the 
franchised public utility and its market-regulated power sales 
affiliate are permitted to share employees that make strategic 
decisions about future generation supply, such as deciding when and/or 
where to build or acquire generating capacity, such strategic decision 
making by a shared employee could result in generation being built or 
acquired for the benefit of the market-regulated power sales affiliate, 
and at the expense of the captive customers of the franchised public 
utility. In this regard, the Commission notes that the corporate entity 
has an inherent incentive to decrease its market-regulated power sales 
affiliate's costs in order to maximize profits for shareholders.
    10. Similarly, a shared employee that procures fuel for both the 
franchised public utility and the market-regulated power sales 
affiliate may have the incentive to allocate purchases of lower priced 
fuel supplies to the market regulated power sales affiliate while 
allocating purchases of higher priced fuel supplies to the franchised 
public utility. By contrast, if the two entities are required to 
independently procure fuel, they would compete for the market's best 
priced fuel.
    11. Therefore, given that the definition of marketing function 
employee under the Standards of Conduct does not specifically address

[[Page 20798]]

employees that determine the timing of scheduled outages or that engage 
in economic dispatch, fuel procurement, or resource planning, the April 
15 Clarification Order clarifies that employees engaging in these 
activities \14\ are prohibited from being shared under the market-based 
rate affiliate restrictions, absent an explicit waiver from the 
Commission.
---------------------------------------------------------------------------

    \14\ The prohibition on sharing employees that engage in 
resource planning applies only to the sharing of employees between a 
franchised public utility and its market-regulated power sales 
affiliate, and is not intended to alter resource planning activities 
by transmission providers that are permitted under the Standards of 
Conduct Final Rule.
---------------------------------------------------------------------------

    12. In order to reflect this clarification, we propose to revise 
Sec.  35.39 of our regulations in order to clarify that employees that 
determine the timing of scheduled outages or that engage in economic 
dispatch, fuel procurement, or resource planning may not be shared 
under the market-based rate affiliate restrictions. Accordingly, we 
propose to revise the separation of functions provision contained in 
Sec.  35.39(c)(2)(ii) of the regulations to include the provision that 
franchised public utilities with captive customers are prohibited from 
sharing employees that determine the timing of scheduled outages or 
that engage in economic dispatch, fuel procurement, or resource 
planning with their market-regulated power sales affiliates.
    13. We also propose to revise the information sharing provision 
contained in Sec.  35.39(d)(2) of the regulations to include the 
provision that employees that determine the timing of scheduled outages 
or that engage in economic dispatch, fuel procurement, or resource 
planning may not have access to information covered by the prohibition 
of Sec.  35.39(d)(1).

IV. Information Collection Statement

    14. The Office of Management and Budget's (OMB) regulations require 
that OMB approve certain information collection and data retention 
requirements imposed by an agency.\15\ Order No. 697's revisions to the 
information collection requirements for market-based rate sellers were 
approved under FERC-919 ``Market-Based Rates for Wholesale Sales of 
Electric Energy, Capacity and Ancillary Services by Public Utilities'' 
OMB Control Nos. 1902-0234. While this order proposes to revise the 
regulations for the market-based rate program in order to provide 
clarification, it does not add to the existing information collection 
requirements. Accordingly, a copy of this order will be sent to OMB for 
informational purposes only.
---------------------------------------------------------------------------

    \15\ 5 CFR 1320.11.
---------------------------------------------------------------------------

V. Environmental Analysis

    15. 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.\16\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment.\17\ The actions proposed here fall within the categorical 
exclusions in the Commission's regulations for rules that are 
clarifying, corrective, or procedural, or do not substantially change 
the effect of legislation or regulations being amended.\18\ In 
addition, the proposed rule is categorically excluded as an electric 
rate filing submitted by a public utility under sections 205 and 206 of 
the FPA.\19\ As explained above, this proposed rule revises the 
regulations for the market-based rate program in order to provide 
clarification. Accordingly, no environmental assessment is necessary 
and none has been prepared in this NOPR.
---------------------------------------------------------------------------

    \16\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, FERC Stats. & Regs., Regulations 
Preambles July 1996-December 2000 ] 30,783 (1987).
    \17\ 18 CFR 380.4.
    \18\ See 18 CFR 380.4(a)(2)(ii).
    \19\ 18 CFR 380.4(a)(15).
---------------------------------------------------------------------------

VI. Regulatory Flexibility Act Analysis

    16. The Regulatory Flexibility Act of 1980 (RFA) \20\ 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 proposed rule and that minimize 
any significant economic impact on a substantial number of small 
entities. Most filing companies regulated by the Commission do not fall 
within the RFA's definition of small entity.\21\ Moreover, as noted 
above, this proposed rule revises the regulations for the market-based 
rate program in order to provide clarification of an existing 
requirement that affected entities, including small entities, are 
currently required to comply with. Because the proposed revisions 
clarify an existing requirement, and do not add to the existing 
information collection or filing requirements, the Commission concludes 
that the proposed rule will not have a significant economic impact on a 
substantial number of small entities. As a result, no regulatory 
flexibility analysis is required.
---------------------------------------------------------------------------

    \20\ 5 U.S.C. 601-12.
    \21\ 5 U.S.C. 601(3), citing to section 3 of the Small Business 
Act, 15 U.S.C. 632. Section 3 of the Small Business Act defines a 
``small-business concern'' as a business which is independently 
owned and operated and which is not dominant in its field of 
operation.
---------------------------------------------------------------------------

VII. Comment Procedures

    17. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due June 21, 2010. Comments must refer to 
Docket No. RM10-20-000, and must include the commenters' name, the 
organization they represent, if applicable, and their address in their 
comments.
    18. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's Web site at https://www.ferc.gov. The Commission accepts most standard word processing 
formats. Documents created electronically using word processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    19. Commenters that are not able to file comments electronically 
must send an original and 14 copies of their comments to: Federal 
Energy Regulatory Commission, Secretary of the Commission; 888 First 
Street, NE., Washington, DC 20426.
    20. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VIII. Document Availability

    21. 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 (https://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, 
Washington, DC 20426.
    22. 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,

[[Page 20799]]

type the docket number excluding the last three digits of this document 
in the docket number field.
    23. User assistance is available for eLibrary and the Commission's 
Web site during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or e-mail at 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. E-mail the Public Reference Room at 
public.referenceroom@ferc.gov.

List of subjects in 18 CFR Part 35

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

    By direction of the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
    In consideration of the foregoing, the Commission proposes to amend 
part 35, Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 35--FILING OF RATE SCHEDULES AND TARIFFS

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

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

    2. In Sec.  35.39, paragraphs (c)(2)(ii) and (d)(2) are revised to 
read as follows:


Sec.  35.39  Affiliate restrictions.

* * * * *
    (c) * * *
    (2) * * *
    (ii) Franchised public utilities with captive customers are 
permitted to share support employees, and field and maintenance 
employees with their market-regulated power sales affiliates. 
Franchised public utilities with captive customers are also permitted 
to share senior officers and boards of directors with their market-
regulated power sales affiliates; provided, however, that the shared 
officers and boards of directors must not participate in directing, 
organizing or executing generation or market functions. Franchised 
public utilities with captive customers are prohibited from sharing 
employees that determine the timing of scheduled outages or that engage 
in economic dispatch, fuel procurement, or resource planning with their 
market-regulated power sales affiliates.
* * * * *
    (d) * * *
    (2) Permissibly shared support employees, field and maintenance 
employees and senior officers and board of directors under Sec.  
35.39(c)(2)(ii) may have access to information covered by the 
prohibition of Sec.  35.39(d)(1), subject to the no-conduit provision 
in Sec.  35.39(g). Employees that determine the timing of scheduled 
outages or that engage in economic dispatch, fuel procurement, or 
resource planning may not have access to information covered by the 
prohibition of Sec.  35.39(d)(1).
* * * * *
[FR Doc. 2010-9083 Filed 4-20-10; 8:45 am]
BILLING CODE 6717-01-P

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