Electricity Market Transparency Provisions of Section 220 of the Federal Power Act, 24188-24211 [2011-10113]

Agencies

• DEPARTMENT OF ENERGY
• Federal Energy Regulatory Commission

[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Proposed Rules]
[Pages 24188-24211]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10113]



[[Page 24187]]

Vol. 76

Friday,

No. 83

April 29, 2011

Part III





Department of Energy





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Federal Energy Regulatory Commission



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18 CFR Part 35



Electricity Market Transparency Provisions of Section 220 of the 
Federal Power Act; Proposed Rule

Federal Register / Vol. 76 , No. 83 / Friday, April 29, 2011 / 
Proposed Rules

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[Docket No. RM10-12-000]


Electricity Market Transparency Provisions of Section 220 of the 
Federal Power Act

AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission proposes to amend its regulations pursuant to 
section 220 of the Federal Power Act (FPA), as enacted by section 1281 
of the Energy Policy Act of 2005 (EPAct 2005), to facilitate price 
transparency in markets for the sale and transmission of electric 
energy in interstate commerce. In doing so, the Commission proposes 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 Electric Quarterly Reports (EQR) with the 
Commission.
    In addition, the Commission proposes to refine the existing EQR 
filing requirements by directing all filers to: report the transaction 
date and time, as well as the type of rate by which the price in the 
transaction or contract was set (i.e., fixed price, formula, index, 
regional transmission organization/independent system operator (RTO/
ISO) price, or index); indicate whether the transaction was reported to 
an index publisher; identify the broker or exchange used for a 
transaction, if applicable; and report electronic tag (e-Tag) ID data 
in EQRs. The Commission also proposes to: Standardize the unit for 
reporting energy and capacity transactions; omit the time zone from the 
contract section; and eliminate the Data Universal Numbering System 
(DUNS) data requirement. These refinements to the existing EQR filing 
requirements reflect the evolving nature of electricity markets and 
promote greater price transparency and confidence in electricity 
markets.

DATES: Comments are due June 28, 2011.

ADDRESSES: You may submit comments, identified by docket number by any 
of the following methods:
     Agency Web Site: https://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:
Maria Vouras, Office of Enforcement, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
8062, Maria.Vouras@ferc.gov.
Christina Switzer, Office of General Counsel, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
6379, Christina.Switzer@ferc.gov.
William Sauer, Office of Enforcement, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426, (202) 502-
6639, William. Sauer@ferc.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

 
                                                               Paragraph
                                                                numbers
 
I. Background...............................................           3
    A. Order No. 2001.......................................           3
    B. EPAct 2005...........................................           5
    C. Notice of Inquiry....................................           8
II. Discussion..............................................           9
    A. Extending the EQR Filing Requirements to Non-Public             9
     Utilities..............................................
        1. Background.......................................           9
        2. Commission Authority.............................          14
        3. Proposed Filing Requirements for Non-Public                32
         Utilities..........................................
    B. Refinements to the Existing EQR Requirements.........          78
        1. Background.......................................          78
        2. General Refinements..............................          81
        3. Additional EQR Enhancements......................         107
III. Information Collection Statement.......................         123
IV. Environmental Analysis..................................         131
V. Regulatory Flexibility Act Certification.................         132
VI. Comment Procedures......................................         136
VII. Document Availability..................................         140
Appendix A: List of Commenters
Appendix B: Proposed Refinements to the Existing EQR
 

Notice of Proposed Rulemaking--April 21, 2011

    1. To facilitate price transparency in markets for the sale and 
transmission of electric energy in interstate commerce, the Federal 
Energy Regulatory Commission (Commission) proposes to revise its 
regulations to require market participants that are excluded from the 
Commission's jurisdiction under section 205 of the Federal Power Act 
(FPA) \1\ and have more than a de minimis market presence to file 
Electric Quarterly Reports (EQR) with the Commission.\2\ In doing so, 
the Commission proposes to exercise its

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authority under section 220 of the FPA,\3\ as adopted in the Energy 
Policy Act of 2005 (EPAct 2005).\4\ This proposal would allow the 
Commission and the public to gain a more complete picture of wholesale 
power and transmission markets in interstate commerce by providing 
additional information concerning price formation and market 
concentration in these markets. Public access to additional sales and 
transmission-related information in the EQR would improve market 
participants' ability to assess supply and demand fundamentals and to 
price interstate wholesale market transactions. It also would 
strengthen the Commission's ability to identify potential exercises of 
market power or manipulation and to better evaluate the competitiveness 
of the interstate wholesale markets.
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    \1\ 16 U.S.C. 824d. For ease of reference, this Notice of 
Proposed Rulemaking (NOPR) refers to market participants that are 
not public utilities under section 201(f) of the FPA as ``non-public 
utilities.'' FPA section 201(f) provides: No provision in this Part 
shall apply to, or be deemed to include, the United States, a State 
or any political subdivision of a State, an electric cooperative 
that receives financing under the Rural Electrification Act of 1936 
(7 U.S.C. 901 et seq.) or that sells less than 4,000,000 megawatt 
hours of electricity per year, or any agency, authority, or 
instrumentality of any one or more of the foregoing, or any 
corporation which is wholly owned, directly or indirectly, by any 
one or more of the foregoing, or any officer, agent, employee of any 
of the foregoing acting as such in the course of his official duty, 
unless such provision makes specific reference thereto. 16 U.S.C. 
824(f).
    \2\ These proposed requirements would not apply to a transaction 
for the purchase or sale of wholesale electric energy or 
transmission services within the Electric Reliability Council of 
Texas (ERCOT), consistent with the exclusion set forth in FPA 
section 220(f). 16 U.S.C. 824t(f).
    \3\ 16 U.S.C. 824t.
    \4\ EPAct 2005, Pub. L. 109-58, 119 Stat. 594 (2005).
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    2. In addition, the Commission proposes to make certain revisions 
to the existing EQR filing requirements and apply those revisions to 
all market participants filing EQRs. The Commission proposes to revise 
the EQRs currently filed by public utilities under FPA section 205(c) 
and that will be filed by non-public utilities under FPA section 220. 
These revisions include the addition of new fields for: (1) Reporting 
the transaction date and time, as well as the type of rate; (2) 
indicating whether the sales transaction was reported to an index 
publisher; (3) identifying the broker or exchange used for a sales 
transaction, if applicable; and (4) reporting electronic tag (e-Tag) ID 
data. The Commission also proposes to eliminate the time zone from the 
contract section and the Data Universal Numbering System (DUNS) data 
requirement. Further, the Commission proposes to standardize the unit 
for reporting energy and capacity transactions. These refinements to 
the existing EQR filing requirements reflect the evolving nature of 
electricity markets, would increase market transparency for the 
Commission and the public, and would allow market participants to file 
the information in the most efficient manner possible.\5\
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    \5\ The Commission also is reviewing the software currently used 
to file EQRs.
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I. Background

A. Order No. 2001

    3. The Commission set forth the EQR filing requirements in Order 
No. 2001.\6\ Order No. 2001 requires public utilities to electronically 
file EQRs summarizing transaction information for short-term and long-
term cost-based sales and market-based rate sales and the contractual 
terms and conditions in their agreements for all jurisdictional 
services.\7\ The Commission established the EQR reporting requirements 
to help ensure the collection of information needed to perform its 
regulatory functions over transmission and sales,\8\ while making data 
more useful to the public and allowing public utilities to better 
fulfill their responsibility under FPA section 205(c) \9\ to have rates 
on file in a convenient form and place.\10\ As noted in Order No. 2001, 
the EQR data is designed to ``provide greater price transparency, 
promote competition, enhance confidence in the fairness of the markets, 
and provide a better means to detect and discourage discriminatory 
practices.'' \11\
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    \6\ Revised Public Utility Filing Requirements, Order No. 2001, 
67 FR 31043 (May 8, 2002), 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, 72 FR 56735 (Oct. 4, 2007), 120 FERC 
] 61,270, order on reh'g and clarification, Order No. 2001-H, 73 FR 
1876 (Jan. 10, 2008), 121 FERC ] 61,289 (2007), order revising 
filing requirements, Order No. 2001-I, 73 FR 65526 (Nov. 4, 2008), 
125 FERC ] 61,103 (2008).
    \7\ Order No. 2001, FERC Stats. & Regs. ] 31,127.
    \8\ Id. P 13-14.
    \9\ 16 U.S.C. 824d(c).
    \10\ Order No. 2001, FERC Stats. & Regs.] 31,127 at P 31.
    \11\ Id. P 31.
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    4. Since issuing Order No. 2001, the Commission has provided 
guidance and refined the reporting requirements, as necessary, to 
simplify the filing requirements and to reflect changes in the 
Commission's rules and regulations.\12\ For instance, in 2007 the 
Commission adopted an Electric Quarterly Report Data Dictionary, which 
provides in one document the definitions of certain terms and values 
used in filing EQR data.\13\ Moreover, in 2007, the Commission required 
transmission capacity reassignment to be reported in the EQR.\14\ The 
refinements to the existing EQR requirements that we are proposing in 
this NOPR build upon the Commission's prior improvements to the 
reporting requirements and further enhance the goals of providing 
greater price transparency, promoting competition, instilling 
confidence in the fairness of the markets, and providing a better means 
to detect and discourage discriminatory and manipulative practices.
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    \12\ See, e.g., Revised Public Utility Filing Requirements for 
Electric Quarterly Reports, 124 FERC ] 61,244 (2008) (providing 
guidance on the filing of information on transmission capacity 
reassignments in EQRs); Notice of Electric Quarterly Reports 
Technical Conference, 73 FR 2477 (Jan. 15, 2008) (announcing a 
technical conference to discuss changes associated with the EQR Data 
Dictionary).
    \13\ Order No. 2001-G, 120 FERC ] 61,270.
    \14\ Preventing Undue Discrimination and Preference in 
Transmission Service, Order No. 890, 72 FR 12266 (Mar. 15, 2007), 
FERC Stats. & Regs. ] 31,241, at P 817, order on reh'g, Order No. 
890-A, 73 FR 2984 (Jan. 16, 2008), FERC Stats. & Regs. ] 31,261 
(2007), order on reh'g and clarification, Order No. 890-B, 73 FR 
39092 (July 8, 2008), 123 FERC ] 61,299 (2008), order on reh'g, 
Order No. 890-C, 74 FR 12540 (March 25, 2009), 126 FERC ] 61,228 
(2009), order on clarification, Order No. 890-D, 74 FR 61511 (Nov. 
25, 2009), 129 FERC ] 61,126.
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B. EPAct 2005

    5. In EPAct 2005, Congress added section 220 to the FPA,\15\ 
directing the Commission to ``facilitate price transparency in markets 
for the sale and transmission of electric energy in interstate 
commerce'' with ``due regard for the public interest, the integrity of 
those markets, fair competition, and the protection of consumers.'' 
\16\ FPA section 220 grants the Commission authority to obtain and 
disseminate ``information about the availability and prices of 
wholesale electric energy and transmission service to the Commission, 
State commissions, buyers and sellers of wholesale electric energy, 
users of transmission services, and the public.'' \17\ The statute 
specifies that the Commission may obtain this information from ``any 
market participant,'' \18\ except for entities with a de minimis market 
presence.\19\ EPAct 2005 added a similar transparency provisions in the 
Natural Gas Act.\20\
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    \15\ 16 U.S.C. 824t.
    \16\ In addition, FPA section 220(b)(1-2) directs the Commission 
to exempt from disclosure information that is ``detrimental to the 
operation of an effective market or [that would] jeopardize system 
security,'' and ``to ensure that consumers and competitive markets 
are protected from the adverse effects of potential collusion or 
other anticompetitive behaviors that can be facilitated by untimely 
public disclosure of proprietary trading information.'' 16 U.S.C. 
824t(b)(1-2).
    \17\ 16 U.S.C. 824t(a)(2).
    \18\ Id. 824t(a)(3)(A).
    \19\ Id. 824t(d).
    \20\ 15 U.S.C. 717t-2.
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    6. In 2006, Commission staff conducted an extensive outreach effort 
to formulate options for implementing EPAct 2005's transparency 
provisions for wholesale natural gas and electricity markets. As a 
result, the Commission used its new transparency authority to adopt 
additional filing and posting requirements for the sale or 
transportation of physical natural gas in interstate commerce in Orders 
No. 704 and 720. Order No. 704 requires buyers and sellers of more than 
a de minimis volume of natural gas to report aggregate volumes of 
relevant transactions in an

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annual filing.\21\ In Order No. 720, the Commission required major non-
interstate pipelines to post daily scheduled volume and other data for 
certain receipt and delivery points.\22\ Order No. 720 also requires 
interstate pipelines to post information regarding no-notice 
service.\23\
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    \21\ Transparency Provisions of Section 23 of the Natural Gas 
Act, Order No. 704, 73 FR 1014 (Jan. 4, 2008), FERC Stats. & Regs. ] 
31,260, at P 32 (2007), order on reh'g, Order No. 704-A, 73 FR 55726 
(Sept. 26, 2008), FERC Stats. & Regs. ] 31,275, order dismissing 
reh'g and clarification, Order No. 704-B, 125 FERC ] 61,302 (2008), 
order granting clarification, Order No. 704-C, 75 FR 35632 (June 23, 
2010), 131 FERC ] 61,246 (2010); see also, Pipeline Posting 
Requirements under Section 23 of the Natural Gas Act, Order No. 720, 
73 FR 73494 (Dec. 2, 2008), FERC Stats. & Regs. ] 31,283, at P 3 
(2008), order on reh'g, Order No. 720-A, 73 FR 73494 (Dec. 2, 2008), 
FERC Stats. & Regs. ] 31,302, order on reh'g and clarification, 
Order No. 720-B, 75 FR 44893 (July 30, 2010), FERC Stats. & Regs. ] 
31,314 (2010).
    \22\ Order No. 720, FERC Stats. & Regs. ] 31,283 at P 1.
    \23\ Id.
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    7. The Commission declined to extend such requirements to wholesale 
electricity markets because, at the time of the Natural Gas 
Transparency Notice of Proposed Rulemaking, the Commission was 
considering other reforms to its regulation of electricity markets.\24\ 
In particular, the Commission was undertaking open access transmission 
service reforms and the more general review of competition in wholesale 
electricity markets.\25\ As a result of these efforts, the Commission 
issued two final rules. In Order No. 890, the Commission exercised its 
remedial authority ``to limit further opportunities for undue 
discrimination, by minimizing areas of discretion, addressing 
ambiguities and clarifying various aspects of the pro forma [Open 
Access Transmission Tariff].'' \26\ Moreover, in Order No. 719, the 
Commission made reforms ``to improve the operation [and 
competitiveness] of organized wholesale electric power markets'' in 
connection with ``fulfilling its statutory mandate to ensure supplies 
of electric energy at just, reasonable and not unduly discriminatory or 
preferential rates.'' \27\ Although these final rules improved 
transparency in wholesale markets in a number of ways, the Commission 
believes the revisions proposed in this order are necessary to 
facilitate price transparency in wholesale electricity markets.
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    \24\ See Transparency Provisions of Section 23 of the Natural 
Gas Act; Transparency Provisions of the Energy Policy Act, Notice of 
Proposed Rulemaking, 72 FR 20791 (April 26, 2007), FERC Stats. & 
Regs. ] 32,614, at P 9-11 (2007) (Natural Gas Transparency NOPR) 
(``The Commission does not propose action with respect to electric 
markets at this time. The Commission has recently addressed and is 
currently addressing electric market transparency in other 
proceedings.'').
    \25\  Id.
    \26\ Order No. 890, FERC Stats. & Regs. ] 31,241 at P 40.
    \27\ Wholesale Competition in Regions with Organized Electric 
Markets, Order No. 719, 73 FR 64100 (Oct. 28, 2008), FERC Stats. & 
Regs. ] 31,281 (2008), order on reh'g, Order No. 719-A, 74 FR 37776 
(July 29, 2009), FERC Stats. & Regs. ] 31,292, order on reh'g and 
clarification, Order No. 719-B, 129 FERC ] 61,252 (2009).
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C. Notice of Inquiry

    8. On January 21, 2010, the Commission issued a Notice of Inquiry 
\28\ seeking comments on whether the Commission should apply the EQR 
filing requirements to non-public utilities and whether the Commission 
should consider other refinements to the existing EQR filing 
requirements. In response to the Transparency NOI, the Commission 
received 40 comments. Of those comments, twenty-eight discuss extending 
the EQR filings to non-public utilities; five discuss EQR refinements; 
and six discuss both. We have considered these comments in drafting the 
proposals in this NOPR, and we invite further comments on these 
proposals.
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    \28\ Electricity Market Transparency Provisions of Section 220 
of the Federal Power Act, Notice of Inquiry, 75 FR 4805 (Jan. 29, 
2010), FERC Stats. & Regs. ] 35,565 (2010) (Transparency NOI).
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II. Discussion

A. Extending the EQR Filing Requirements to Non-Public Utilities

1. Background
a. Need for Information from Non-Public Utilities
    9. Currently, market participants that fall within the Commission's 
jurisdiction under FPA section 205(c) \29\ must file EQRs summarizing 
contractual terms and conditions in their agreements for jurisdictional 
services, including market-based rate sales, cost-based sales, 
transmission service, and transmission capacity reassignments. In 
addition, EQR filers must provide detailed transactional information 
for power sales and transmission capacity reassignments made during the 
most recent calendar quarter.
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    \29\ FPA section 205(c) requires public utilities to file all 
rates and charges for any transmission or sale subject to the 
Commission's jurisdiction in a convenient form and place for public 
inspection. 16 U.S.C. 824d(c).
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    10. Transactions made by both public utility and non-public utility 
market participants provide critical pricing information that market 
participants can use to make better-informed decisions about, among 
other things, sales, purchases, and infrastructure investments. Access 
to reliable data reduces differences in available information among 
various market participants, results in greater market confidence, 
lowers transaction costs, and ultimately supports competitive markets, 
which helps lower electricity costs for consumers. Applying the EQR 
filing requirements to the non-public utilities that fall above the de 
minimis threshold will increase price transparency to the public and 
the Commission and aid the Commission in its oversight of wholesale 
power and transmission markets. As the Commission explained in 
implementing the transparency provisions under section 23 of the 
Natural Gas Act:

    The Commission's market-oriented policies for the wholesale 
natural gas industry require that interested persons have broad 
confidence that reported market prices accurately reflect the 
interplay of legitimate market forces. Without confidence in the 
fairness of price formation, the true value of transactions is very 
difficult to determine. Further, price transparency makes it easier 
for us to ensure that jurisdictional prices are ``just and 
reasonable.'' \30\
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    \30\ Order No. 704-A, 124 FERC ] 61,269 at P 3; see also Order 
No. 704, FERC Stats. & Regs. ] 31,260 at P 7.

    11. Based on the most recent data available in the 2009 U.S. Energy 
Information Administration's (EIA) Form 861, non-public utilities 
account for significant volumes of the 3.2 billion MWh of total annual 
wholesale electricity sales made within the 48 contiguous states 
(excluding ERCOT).\31\ In particular, about 29 percent of those 
wholesale sales are made by non-public utilities. Non-public utilities 
make a significant portion of sales in certain regional wholesale 
markets within the United States. The 2009 EIA Form 861 data indicates 
that non-public utilities account for 60 and 70 percent of wholesale 
sales within the Western Electric Coordinating Council (WECC) and SERC 
Reliability Corporation (SERC) regions, respectively. Similarly, non-
public utilities make up about 80 percent of all wholesale sales that 
occur within the Florida Reliability Coordinating Council (FRCC). Given 
non-public utilities' significant presence in national and regional 
wholesale electricity markets, obtaining information about their sales 
transactions is important to unmasking how prices are formed in 
electricity markets. The lack of information from non-public utilities 
results in an incomplete picture of these markets, and hampers the 
ability of the public

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and the Commission to detect and address the potential exercise of 
market power and manipulation.
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    \31\ See U.S. Energy Information Administration, Form EIA-861, 
Annual Electric Power Industry Report (April 2010), available at 
https://www.eia.doe.gov/cneaf/electricity/page/eia861.html.
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    12. Among the refinements this NOPR proposes to the EQR filing 
requirements is a requirement that all market participants provide 
information about the index publishers, if any, to which they report 
their transactions and any broker or exchange they use. This 
information would provide greater transparency regarding electricity 
index prices and how well those index prices reflect market forces, 
thus creating greater confidence in the electricity market. In 
addition, this NOPR proposes several refinements to the EQR filing 
requirements, including requiring all filers to report: (1) The 
transaction date and time; (2) the type of rate by which the price in 
the transaction or contract was set (i.e., fixed price, formula, index, 
or RTO/ISO price); and (3) e-Tag ID data. The Commission also proposes 
to: (1) Standardize the unit for reporting energy and capacity 
transactions; (2) omit the time zone from the contract section; and (3) 
eliminate the DUNS number requirement.
    13. Section 220(a)(4) of the FPA requires the Commission to 
``consider the degree of price transparency provided by existing price 
publishers and providers of trade processing services, and * * * rely 
on such publishers and services to the maximum extent possible.'' As 
discussed below, we have reviewed existing publications and we believe 
that the additional data that would be required under this NOPR is not 
available through existing sources and is necessary to provide a 
complete picture of price formation in wholesale power markets.
b. Notice of Inquiry Regarding Extending the EQR Filing Requirements
    14. In the Transparency NOI, the Commission sought comments 
regarding whether the Commission should extend the EQR filing 
requirements to non-public utilities. The Commission also sought 
comments on what information the Commission should collect, whether the 
Commission should establish a threshold for reporting, and the burden 
on market participants that would have to adapt their existing systems 
to be able to provide the information. The Commission also asked 
whether extending the filing requirements would impact market 
liquidity.
2. Commission Authority
a. Comments
    15. Several commenters question whether the Commission has the 
authority to extend the EQR filing requirements to non-public 
utilities.\32\ Many of these commenters emphasize that the Commission's 
jurisdiction under section 220 is limited to collecting information 
regarding wholesale electricity and transmission markets. They point to 
section 220(b), which states that ``[t]he Commission may prescribe 
rules * * * [that] provide for the dissemination, on a timely basis, of 
information about the availability and prices of wholesale electric 
energy and transmission service.'' \33\ They argue that non-public 
utilities constitute a small percentage of the wholesale market, and 
therefore information from these market participants will not enhance 
transparency significantly.\34\ In addition, Alaska Power argues that 
utilities in Alaska do not engage in energy and transmission 
transactions in interstate commerce and, therefore, should not be 
required to file EQRs. Many commenters also argue that there is a lack 
of evidence to support imposing the EQR filing requirements on non-
public utilities.\35\ For instance, NRECA and TANC argue that, in the 
Transparency NOI, the Commission overstated the volume of sales that 
would be reported if the Commission extended the filing requirements to 
non-public utilities.\36\ APPA asserts that EIA statistics on non-
public utility sales cited by the Commission in the Transparency NOI 
reflect bundled retail sales to consumers rather than information on 
wholesale sales, which is relevant to the Commission's oversight of 
jurisdictional wholesale markets.\37\ NRECA and TANC claim that the 
Commission should have excluded retail sales from EIA's estimate of 
electric utility sales that are made by entities other than public 
utilities.\38\ TANC also asserts that the Commission should have 
excluded sales from utilities in ERCOT because those utilities are 
outside the Commission's section 220 jurisdiction. APPA asserts that 
the Commission's efforts would be better spent focusing on Regional 
Transmission Organization (RTO) and Independent System Operators (ISO) 
market transparency.
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    \32\ APPA; NRECA; Southwest Transmission; EMCOS; Public Systems; 
East Texas Electric Cooperatives; Cities/M-S-R; TANC; MID; New York 
Public Power; Delaware Municipal; California DWR; Public Power 
Council; Allegheny; Utah Associated Municipal; NCPA; NYMPA/MEUA.
    \33\ 16 U.S.C. 824t(b).
    \34\ APPA; NRECA; EMCOS; Public Systems; East Texas Electric 
Cooperatives; TANC; Delaware Municipal; Utah Associated Municipal; 
NYMPA/MEUA.
    \35\ Southwest Transmission; East Texas Electric Cooperatives; 
TANC; Utah Associated Municipal.
    \36\ NRECA at 11; TANC at 16.
    \37\ APPA at 5-6.
    \38\ NRECA at 11.
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    16. NRECA and TANC further contend that the absence of EQR 
information from non-public utilities has not hampered the Commission's 
ability to approve market-based rates. For example, TANC argues that 
the Commission has been conducting ex ante and ex post analyses of 
public utilities' market power and has been approving and evaluating 
mergers for decades without information from non-jurisdictional 
entities.
    17. Cities/M-S-R state that entities under consideration in this 
proceeding have no statutory obligation to file their energy sales 
agreements with the Commission, nor are their rates subject to 
reasonableness determinations before the Commission. Accordingly, 
Cities/M-S-R argue that there is no need to use the EQR mechanism to 
replace other filing obligations, such as an annual filing with the 
EIA, for entities exempt from section 205 of the FPA.
    18. Other commenters argue that the Commission has the authority 
under the FPA to extend the EQR filing requirements to non-public 
utilities. EEI asserts that section 220 provides the Commission with 
clear authority and responsibility to extend the EQR filing 
requirements. DC Energy notes that section 205 also provides the 
Commission with broad authority to require otherwise exempt entities to 
provide information related to the rates for jurisdictional services.
    19. Several commenters also support the Commission's effort to 
increase transparency in wholesale electricity markets and assert that 
the additional reporting requirements will assist the Commission in 
carrying out its statutory obligations.\39\ The City of Dover states 
that reporting is needed to enable the Commission to understand the 
impact of certain transactions. DC Energy strongly supports the 
Commission's efforts and argues that such reporting will help 
facilitate the detection of market power. In addition, California PUC 
states that the additional filing requirements can help state 
regulatory agencies: (1) Oversee utility procurement; (2) establish 
statewide renewable portfolio standards, energy efficiency initiatives, 
demand response programs, and capacity market activities; and (3) 
further greenhouse gas policies.
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    \39\ See, e.g., City of Dover at 1; DC Energy at 5-6; California 
PUC at 2-3; PG&E at 3; Wisconsin Electric at 2; EEI at 3.

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b. Discussion
    20. The market transparency provisions in section 220 of the FPA 
direct the Commission to ``facilitate price transparency'' in markets 
for the sale and transmission of electric energy in interstate 
commerce.\40\ The transparency provisions authorize the Commission to 
``prescribe such rules as the Commission determines necessary and 
appropriate'' for the dissemination of ``information about the 
availability and prices of wholesale electric energy and transmission 
service.'' \41\ These provisions expand the Commission's authority to 
collect such information, not only from public utilities, but ``from 
any market participant'' \42\ with more than a de minimis market 
presence.\43\ The Commission proposes, in this NOPR, to fulfill its 
responsibility under section 220 of the FPA by requiring non-public 
utilities with more than a de minimis market presence in wholesale 
markets to comply with the EQR filing requirements outlined in the next 
section.
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    \40\ 16 U.S.C. 824t(a)(1).
    \41\ Id. at 824t(a)(2).
    \42\ Id. at 824t(a)(3). This section states, in relevant part, 
that ``[t]he Commission may obtain the information described in 
paragraph (2) from any market participant.'' Id. (emphasis added).
    \43\ Id. at 824t(d).
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    21. Currently, market participants that fall within the 
Commission's jurisdiction under FPA section 205 must file EQRs. Section 
201(f) of the FPA exempts certain entities (i.e., Federal entities, 
municipalities, and certain cooperatives with Rural Electrification Act 
financing and that sell less than 4,000,000 MWh of electricity per 
year) from the Commission's section 205 jurisdiction.\44\ However, the 
transparency provisions in FPA section 220 specifically permit the 
Commission to obtain price and availability information from ``any 
market participant.'' The phrase ``any market participant'' is not 
defined in section 220 and is not limited to public utilities subject 
to the Commission's jurisdiction under section 205 of the FPA.
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    \44\ Id. at 824(f).
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    22. We interpret ``any market participant'' to include non-public 
utilities that fall under FPA section 201(f).\45\ Such an 
interpretation of ``any market participant'' is consistent with the 
broad mandate in section 220 to ``facilitate price transparency in the 
markets for the sale and transmission of electric energy in interstate 
commerce, having due regard for the public interest, the integrity of 
those markets, fair competition, and the protection of consumers.'' 
Furthermore, in EPAct 2005, Congress amended section 201(b)(2) of the 
FPA \46\ to provide that, ``[n]otwithstanding section 201(f),'' the 
entities described in section 201(f) shall be subject to the 
Commission's jurisdiction for purposes of carrying out certain 
provisions, including FPA section 220. Thus, reading FPA section 
201(b)(2) in conjunction with section 220, EPAct 2005 granted the 
Commission authority to collect information concerning the availability 
and prices of wholesale electric energy and transmission service from 
entities that are not public utilities.
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    \45\ See id. at 824t(a)(3)(A).
    \46\ FPA section 201(b)(2) states that: Notwithstanding section 
201(f), the provisions of sections * * * 220 * * * shall apply to 
the entities described in such provisions, and such entities shall 
be subject to the jurisdiction of the Commission for purposes of 
carrying out such provisions and for purposes of applying the 
enforcement authorities of this Act with respect to such provisions. 
Id. at 824(b)(2).
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    23. We disagree with certain commenters' assertions that 
information about wholesale sales made by non-public utilities will not 
significantly enhance price transparency because non-public utilities 
are a small percentage of the wholesale market. As noted above, based 
on 2009 EIA Form 861 data, non-public utility sales account for 
approximately 29 percent of wholesale sales in the 48 contiguous states 
(excluding ERCOT),\47\ while non-public utilities account for 60 and 70 
percent of wholesale sales within the WECC and SERC regions, 
respectively. Similarly, non-public utilities make up about 80 percent 
of all wholesale sales that occur within FRCC. Given non-public 
utilities' significant presence in national and regional wholesale 
electricity markets, obtaining information about their sales 
transactions is essential to understanding how prices are formed in 
electricity markets.
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    \47\ The Commission has excluded ERCOT from its calculations 
consistent with FPA section 220(f), which states that section 220 
does not apply to wholesale sales of electric energy or transmission 
services within ERCOT. Id. at 824t(f). However, ERCOT members would 
need to report wholesale power sale contract and transaction 
information in EQR to the extent they make interstate sales outside 
of ERCOT.
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    24. Certain commenters dispute the accuracy of the 29 percent 
figure cited in the Transparency NOI \48\ as the percentage of 
wholesale sales made by non-public utilities, arguing that the 
Commission incorrectly relied on EIA statistics pertaining to non-
public utility bundled sales instead of wholesale sales. In particular, 
NRECA, APPA, and TANC argue that the Transparency NOI calculated the 29 
percent figure based on EIA's figures for retail electric utility 
sales, labeled ``Sales to Ultimate Consumers.'' In fact, however, the 
Commission arrived at the 29 percent figure in the Transparency NOI by 
using the 2007 EIA Form 861 wholesale sales data classified by EIA as 
``Sales for Resale,'' and not ``Sales to Ultimate Consumers.'' \49\ 
This 29 percent figure remains the same using the most recently 
available date (i.e. 2009) from EIA Form 861.\50\ Thus, the percentages 
of wholesale sales made by non-public utilities cited in the 
Transparency NOI and this NOPR are accurate.
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    \48\ Specifically, the Transparency NOI stated that EIA's 
Electric Power Industry Overview 2007 estimated that 29 percent of 
electric utility sales are made by publicly-owned electric utilities 
(municipals, public utility districts or public power districts, 
state authorities, irrigation districts, and joint municipal action 
agencies, consumer-owned rural electric cooperatives, and Federal 
electric utilities). See Transparency NOI, FERC Stats. & Regs. ] 
35,565 at P 9 & n. 21 (citing Energy Information Administration, 
Electric Power Industry Overview 2007 (March 2009) available at 
https://www.eia.doe.gov/cneaf/electricity/page/prim2/toc2.html).
    \49\ See Annual Electric Power Industry Report Instructions, 
available at https://www.eia.doe.gov/cneaf/electricity/forms/eia861.pdf.
    \50\ At the time that the Commission issued the Transparency 
NOI, EIA had not yet released the data for 2009.
---------------------------------------------------------------------------

    25. With respect to APPA's comments that the Commission should 
focus on increasing market transparency in RTOs/ISOs instead of 
increasing market transparency by requiring non-public utilities to 
file EQRs, we agree that transparency in the organized markets is 
important. In fact, the RTOs/ISOs already make available a significant 
amount of information about the availability and prices for wholesale 
sales and transmission service within their markets. For example, in 
Order No. 719, the Commission further promoted transparency in RTO/ISO 
markets by directing RTOs/ISOs to reduce the lag time for the release 
of offer and bid data and requiring RTOs/ISOs to justify in compliance 
filings their policy regarding the aggregation of offer data and cost 
data, discussing how the policy avoids participant harm and the 
possibility of collusion, while fostering market transparency.\51\ 
However, notwithstanding the high value the Commission places on market 
transparency in RTO/ISO markets, we continue to believe that increasing 
transparency broadly across all markets subject to the Commission's 
jurisdiction by requiring all market participants,

[[Page 24193]]

including non-public utilities with more than a de minimis presence in 
those markets, to provide information through EQRs is equally 
important.
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    \51\ See Wholesale Competition in Regions with Organized 
Electric Markets, Order No. 719, 73 FR 64100 (Oct. 28, 2008), FERC 
Stats. & Regs. ] 31,281 (2008), order on reh'g, Order No. 719-A, 74 
FR 37776 (Jul. 29, 2009), FERC Stats. & Regs. ] 31,292, order on 
reh'g, Order No. 719-B, 129 FERC ] 61,252 (2009).
---------------------------------------------------------------------------

    26. NRECA's and TANC's arguments that the Commission should not 
require non-public utilities to report information in the EQR because 
the Commission has been approving market-based rates and evaluating 
mergers for decades without such information miss the mark. 
Disseminating information through the EQR about wholesale sales made by 
non-public utilities would benefit the Commission, market participants 
and the public in several different ways in addition to improving the 
Commission's ability to evaluate jurisdictional sellers' market-based 
rate authorizations and proposed mergers and acquisitions. Information 
about non-public utility sales would provide a more complete view of 
the prices and volumes that underlie price formation in the wholesale 
power markets. Information on all sales, rather than sales made only by 
public utilities, would allow market participants to value their 
transactions more accurately and increase confidence that market prices 
reflect all relevant supply and demand forces. Such information, in 
combination with other information tools, would also allow the 
Commission to better monitor for indications of market power and 
manipulation at major trading hubs and on electricity indices. For 
example, without the inclusion of non-public utility transactions in 
the EQR, the Commission may incorrectly conclude that substantial 
market price deviations, or other indicators, at major trading hubs or 
on electricity indices are attributable to the exercise of market power 
or manipulation by a public utility, when in fact, those price 
deviations reflect legitimate market forces caused by significant 
volumes being transacted by non-public utilities.
    27. In addition, as the Commission explained in the Transparency 
NOI, obtaining EQR information from non-public utilities would 
strengthen the Commission's oversight of its market-based rate program 
under FPA section 205 and provide a better basis for considering 
whether to approve merger and acquisition proposals under FPA section 
203.\52\ The Commission's market-based rate program is grounded in an 
ex ante analysis of whether to grant a seller market-based rate 
authority and an ex post analysis of whether a seller with market-based 
rate authority has obtained excessive market share since it was granted 
authorization to transact at market-based rates or since the last 
review of such rates.\53\ One tool used in some cases to conduct an ex 
ante analysis of whether to grant market-based rate authority to a 
seller is the delivered price test (DPT). The DPT defines the relevant 
market by identifying potential suppliers based on market prices, input 
costs, and transmission availability, and then calculates each 
supplier's economic capacity and available economic capacity for each 
season/load condition.\54\ Rather than relying on a DPT analysis for 
analyzing a market-based rate seller's authority that is based on proxy 
prices and published price indices for sales by non-public utilities, 
obtaining more complete price and volume information for sales of 
electricity by non-public utilities would more accurately reflect 
market prices, improve the quality of the DPT results and assist the 
Commission in identifying whether sellers can exercise market power. 
The DPT also is used by the Commission to evaluate the effect on 
competition with respect to proposed mergers and acquisitions under FPA 
section 203. Therefore, obtaining more complete price and volume 
information would provide a better basis for considering whether to 
approve merger and acquisition proposals.
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    \52\  See Transparency NOI, 130 FERC ] 61,039 at P 10-12.
    \53\ The Ninth Circuit Court of Appeals upheld the Commission's 
market-based rate regulatory scheme because it relies on a ``system 
[that] consists of a finding that the applicant lacks market power 
(or has taken sufficient steps to mitigate market power), coupled 
with strict reporting requirements to ensure that the rate is `just 
and reasonable' and that markets are not subject to manipulation.'' 
State of California, ex rel. Bill Lockyer v. FERC, 383 F.3d 1006, 
1013 (9th Cir. 2004), cert. denied (S. Ct. Nos. 06-888 and 06-1100, 
June 18, 2007) (Lockyer).
    \54\  See Market-Based Rates for Wholesale Sales of Electric 
Energy, Capacity and Ancillary Services by Public Utilities, Order 
No. 697, 72 FR 39904 (July 20, 2007), FERC Stats. & Regs. ] 31,252, 
clarified, 121 FERC ] 61,260 (2007), order on reh'g, Order No. 697-
A, 73 FR 25832 (May 7, 2008), FERC Stats. & Regs. ] 31,268, 
clarified, 124 FERC ] 61,055, order on reh'g, Order No. 697-B, 73 FR 
79610 (Dec. 30, 2008), FERC Stats. & Regs. ] 31,285 (2008), order on 
reh'g, Order No. 697-C, 74 FR 30924 (June 29, 2009), FERC Stats. & 
Regs. ] 31,291 (2009), order on reh'g, Order No. 697-D, 75 FR 14342 
(March 25, 2010), FERC Stats. & Regs. ] 31,305 (2010). The 
Commission requires the DPT if a seller fails one of the indicative 
screens. The indicative screens analyze the number of megawatts of 
capacity an applicant owns or controls, rather than analyzing actual 
price data. However, ``sellers that do not pass the indicative 
screens are allowed to provide additional analysis for Commission 
consideration,'' including price data. Order No. 697, FERC Stats. & 
Regs ] 31,252 at P 62.
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    28. Such information from non-public utilities would also provide 
the Commission with important actual sales information for performing 
ex post analysis of whether a jurisdictional seller with market-based 
rate authority has gained an excessive market share since the original 
authorization to transact at market-based rates or since the 
Commission's last review of such rates. Information about sales by non-
public utility market participants will allow the Commission to compare 
prices for power sold by jurisdictional sellers with those of non-
public utility sellers in the same market.
    29. Cities/M-S-R argues that the EQR mechanism should not replace 
other filings made by non-public utilities, such as an annual filing 
with the EIA, because non-public utilities have no statutory obligation 
to file sales agreements with the Commission and their rates are not 
subject to the Commission's reasonableness determinations. Although 
non-public utilities are not subject to the same filing requirements 
and rate determinations under FPA sections 205 and 206 as public 
utilities are, we propose that reporting in the EQR is the proper 
mechanism for non-public utilities to make information about their 
wholesale sales and transmission available to the public. As we note 
below, existing sources of information about non-public utility 
wholesale sales are insufficient to facilitate price transparency. The 
EQR is an established public reporting process that already provides 
substantial transparency into public utility sales. Furthermore, by 
requiring non-public utilities to file information in the EQR in the 
format used by public utilities, we can help ensure the consistency and 
comparability of the information. Consistency and comparability between 
filers is important because wholesale markets do not distinguish 
between sellers that are subject to the Commission's FPA section 205 
jurisdiction or the Commission's regulations and sellers that are 
typically exempt from such Commission's jurisdiction. Expanding the 
applicability of the Commission's EQR filing requirements allows the 
Commission and the public to equally evaluate all transactions in the 
market.
    30. With respect to Cities/M-S-R's arguments that they do not file 
sales agreements or need reasonableness determinations from the 
Commission on their rates, so they should not be required to file EQRs, 
we note that our jurisdiction under FPA section 220's transparency 
provisions is limited to the dissemination of information that will aid 
in market transparency for the public and the Commission. Section 220 
gives the Commission no jurisdiction related to, nor do our proposed 
regulations govern, the rates, terms, and conditions of service of 
market

[[Page 24194]]

participants that are excluded from the Commission's FPA section 205 
jurisdiction. The Commission is requiring only the posting of 
information important to ensuring market transparency and is not 
engaging in traditional regulation of rates, terms and conditions of 
service for non-public utilities.
    31. In response to Alaska Power, we propose to exempt utilities 
located entirely in Alaska from the EQR filing requirements because 
they are electrically isolated from the contiguous United States. In 
addition, we propose to apply this exemption to utilities located 
entirely in Hawaii.
3. Proposed Filing Requirements for Non-Public Utilities
a. Existing Sources of Information
i. Comments
    32. California DWR, NRECA, New York Public Power, City of 
Fayetteville, and SWP argue that section 220 of the FPA requires the 
Commission to determine that existing price publications are 
insufficient before establishing any new reporting requirements. 
Commenters also urge the Commission to consider whether new reporting 
requirements would be duplicative of existing sources, such as EIA 
reports, ISO/RTO data, and private index publishers.\55\ Public Systems 
claim that the Commission may not impose EQR filing requirements on 
market participants in New England because RTOs in New England already 
provide the public with extensive data regarding price and the 
availability of wholesale electric energy. SWP also suggests that the 
Commission could combine data from multiple sources, such as the 
California Independent System Operator (CAISO), existing EQRs, and 
pricing publications, to conduct ex ante or ex post market analyses.
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    \55\ See, e.g., East Texas Electric Cooperatives at 2-3; New 
York Public Power at 3-4; NRECA at 6-8; Cities/M-S-R at 10-11; DEMEC 
at 3-4; Public Systems at 11-15; TANC at 10-11, 14-15; SWP at 8.
---------------------------------------------------------------------------

    33. According to APPA, before expanding EQR requirements to non-
public utilities, the Commission should look closely at the amount and 
type of wholesale sales these utilities actually make and consider 
other sources of available information on such sales, such as EIA 
publications and forms, to determine whether the additional information 
supplied through their EQR filings would help in achieving the 
Transparency NOI's stated goals. NRECA and Cities/M-S-R state that 
cooperatives and other electric utilities annually file form EIA-861, 
``Annual Electric Power Industry Report,'' with the EIA. They explain 
that this form includes information such as peak load, generation, 
electric purchases, sales and revenues. Moreover, NRECA states that EIA 
provides access to the daily volumes, high and low prices, and weighted 
average prices from hubs around the country. In addition, NRECA states 
that cooperatives that receive Rural Utilities Service (RUS) financing 
are required to file RUS Form 12, which includes such information as 
electric purchases, sales, and revenues and is publicly available 
through a database purchased from Ventyx.\56\ NRECA also states that 
the Energy Management Institute provides results of a daily survey of 
wholesale transactions that they conduct in all the major trading 
regions of the country. Furthermore, TANC and NRECA note that forward 
market prices are available through the New York Mercantile Exchange 
and the IntercontinentalExchange. Finally, Sam Rayburn Municipal 
believes that any additional reporting requirement would be duplicative 
because its power supply structure is simple and reported in detail in 
its formal financing, accounting and engineering documents.\57\
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    \56\ Ventyx is a commercial provider that offers Velocity Suite, 
an application that includes data from generation and transmission 
cooperatives, distribution cooperatives, municipal utilities, and 
other market participants exempt from the Commission's FPA section 
205 jurisdiction.
    \57\ Sam Rayburn Municipal at 2.
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ii. Discussion
    34. In carrying out Congress' directive to facilitate price 
transparency in wholesale sales and transmission markets, FPA section 
220 requires that the Commission consider the degree of price 
transparency provided by existing price publishers and trade processing 
services, and rely on such publishers and services to the maximum 
extent possible.\58\ As pointed out by commenters, there are already a 
number of sources of publicly available information about wholesale 
markets, including EIA and RUS forms, RTOs/ISOs, electric index 
publishers, and commercial data providers that provide varying degrees 
of price transparency. However, the Commission believes the degree of 
price transparency provided by existing sources is insufficient for 
facilitating price transparency.
---------------------------------------------------------------------------

    \58\ See 16 U.S.C. 824t(a)(4).
---------------------------------------------------------------------------

    35. The two most significant publicly available forms that capture 
information about non-public utility power sales are the EIA Form 861 
and the RUS Form 12. EIA Form 861 reports total volume (MWh) and 
revenue associated with a filer's wholesale power sales for an entire 
year.\59\ However, Form EIA Form 861 does not detail individual 
wholesale transactions, including the counterparty, location, price, 
and delivery timeframe as well as other transaction details contained 
in EQR. Rather, EIA Form 861 filers report their aggregated annual 
volume of sales for resale and corresponding revenues. RUS Form 12 
provides accounting details for power transaction by entities that fall 
under 7 U.S.C. 901 authority.\60\ RUS Form 12 provides considerably 
more detail than EIA Form 861 through the inclusion of the energy 
purchaser and other contract details for individual energy sales.\61\ 
However, RUS Form 12 provides only limited price transparency because 
the form does not contain information on delivery location and time. 
Delivery location and time are critical for gaining insight into price 
formation.\62\ Without transaction-specific delivery location and time 
information, Form EIA 861 and RUS Form 12 do not provide sufficient 
price transparency into wholesale electricity markets. Therefore, 
expanding EQR filing requirements to non-public utilities would provide 
price transparency that is not available through EIA Form 861 or RUS 
Form 12.
---------------------------------------------------------------------------

    \59\ On line 12 of Schedule 2, Part B, EIA Form 861 collects 
information on electricity ``Sales for Resale.'' https://www.eia.doe.gov/cneaf/electricity/forms/eia861.pdf.
    \60\ RUS Form 12b SE itemizes sales of electricity while RUS 
Form 12b PP itemizes purchases of electricity. https://www.usda.gov/rus/dcs/electric-forms/form12-2006.pdf, https://www.usda.gov/rus/dcs/downloads/form12/1717b-3.pdf.
    \61\ RUS Form 12b SE data field ``Statistical Classification 
(b)'' provides detail on whether the sale is for requirements 
service, long-term firm service or intermediate-term firm service, 
among other classifications. https://www.usda.gov/rus/dcs/downloads/form12/1717b-3.pdf.
    \62\ For example, one would expect power sold in a load-
constrained area during on-peak hours to be priced very differently 
from power sold in a generation-rich area during off-peak hours.
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    36. RTOs/ISOs post extensive information about RTO/ISO wholesale 
market prices and market participant bid/offer data that provide 
valuable transparency for spot wholesale power markets run by RTOs/
ISOs. These postings contain detailed location, market and product 
information. However, these postings are limited to the wholesale 
electricity markets that are administered by RTOs and ISOs. In 
addition, publicly posted RTO/ISO data does not provide price 
transparency into the bilateral transactions entered into by market 
participants within the RTO/ISO balancing authority area that can 
impact RTO/ISO market price formation. These bilateral transactions are 
frequently

[[Page 24195]]

scheduled into the RTO/ISO market.\63\ The terms of bilateral 
transactions are often not reported to RTO/ISO markets and not included 
in publicly posted price and bid/offer data. While some bilateral 
transactions are already reported in the EQR, expanding the EQR filing 
requirements to include non-public utilities would give the Commission 
and the public a better view into bilateral transactions. This data 
would also enhance the RTO/ISO market monitoring units' ability to 
monitor RTO/ISO markets. Thus, expanding EQR filing requirements to 
non-public utilities would provide valuable price transparency into 
bilateral wholesale electricity markets that is not currently captured 
in publicly posted data from RTOs/ISOs.
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    \63\ For example, NYISO estimates that approximately 50 percent 
of the energy scheduled in their markets was transacted bilaterally. 
See https://www.nyiso.com/public/about_nyiso/understanding_the_markets/energy_market/index.jsp.
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    37. Existing daily index publications provide a degree of price 
transparency into spot wholesale electricity markets by capturing 
certain transactions. However, this price transparency is limited 
because these index publications do not capture longer-term 
transactions. Expanding EQR filing requirements to non-public utilities 
would provide price transparency for longer-term transactions not 
included in daily index publications.
    38. Organized exchanges, such as the Intercontinental Exchange, 
also provide valuable price information, but that information is 
limited only to prices for particular power products at standardized 
locations. Finally, commercial data providers, like Ventyx, provide a 
valuable service by collecting and packaging existing publicly 
available data. However, their products are limited by the availability 
of existing information, and therefore do not, in themselves, increase 
price transparency.
    39. In addition, information about non-public utility transmission 
service and reassigned transmission capacity sales may be available in 
the Open Access Same-Time Information System (OASIS). However, 
information on OASIS is not readily accessible to the public. Thus, 
requiring information about non-public utility transmission service and 
reassigned transmission capacity sales to be made publicly available 
through the EQR will facilitate price transparency in the transmission 
markets and aid the public and the Commission in detecting and 
addressing possible market power and manipulation in these markets.
b. Scope of Proposed EQR Filing Requirements for Non-Public Utilities
i. Comments
    40. BPA and Cities/M-S-R question whether the Commission needs all 
of the information included in the EQR and whether quarterly filings 
are necessary. In particular, BPA believes that the critical 
information that the Commission needs to measure the size of the 
relevant market is contained in the transaction section, Field Numbers 
46-67, and that the information in the contract section would not be 
necessary or helpful to the Commission. In addition, APPA and Salt 
River note that the Commission may need to customize the EQR filing 
forms to reflect the types of information applicable to public power 
entities.\64\ However, EEI states that if particular reporting 
requirements do not apply to a given filer, it can simply indicate 
``not applicable.''
---------------------------------------------------------------------------

    \64\ Salt River at 4-5.
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    41. In addition, BPA asserts that the burden would be greatly 
reduced if the Commission were to limit the filing requirements for BPA 
to wholesale power sales at market-based rates. Thus, BPA supports 
excluding the cost-based sales to consumer-owned utilities, direct 
services industries, and inter-business line transmission services 
transactions.
    42. APPA asserts that sales by joint action agencies, state 
agencies, and power or water districts to their own members should not 
be reported.\65\ APPA argues that if the Commission expands EQR filing 
requirements to public power utilities, these agencies and districts 
should only be required to file EQR information on their excess power 
sales (i.e., sales to entities other than their member utilities or 
long-term distribution customers). TAPS and Public Power argue that 
joint-action agencies should not be required to report transactional 
information on long-term, wholesale sales of power to their member 
utilities. In addition, TAPS argues that generation and transmission 
(G&T) cooperatives' sales to their members should not be included. TAPS 
explains that although technically at wholesale, such sales are 
analogous to a vertically integrated utility's internal supply of its 
retail sales unit and subsequent retail sale, neither of which is 
reported through public utilities' EQRs.\66\
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    \65\ A