Proposed Order and Request for Comment on a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act, 52137-52173 [2012-20965]

Download as PDF Vol. 77 Tuesday, No. 167 August 28, 2012 Part II Commodity Futures Trading Commission srobinson on DSK4SPTVN1PROD with NOTICES2 Proposed Order and Request for Comment on a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act; Notice VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28AUN2.SGM 28AUN2 52138 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices COMMODITY FUTURES TRADING COMMISSION Proposed Order and Request for Comment on a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Commodity Futures Trading Commission. ACTION: Notice of Proposed Order and Request for Comment. AGENCY: The Commodity Futures Trading Commission (‘‘CFTC’’ or ‘‘Commission’’) is requesting comment on a proposed exemption (the ‘‘Proposed Exemption’’) issued in response to a consolidated petition (‘‘Petition’’) 1 from certain regional transmission organizations (‘‘RTOs’’) and independent system operators (‘‘ISOs’’) (collectively, ‘‘Petitioners’’) to exempt specified transactions from the provisions of the Commodity Exchange Act (‘‘CEA’’ or ‘‘Act’’) 2 and Commission regulations. The Proposed Exemption would exempt the contracts, agreements and transactions for the purchase or sale of the limited electricity-related products that are specifically described within the proposed order from the provisions of the CEA and Commission regulations, with the exception of sections 2(a)(1)(B), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9 and 13 of the Act and any implementing regulations promulgated thereunder including, but not limited to Commission regulations 23.410(a) and (b), 32.4 and part 180. To be eligible for the Proposed Exemption, the contract, agreement or transaction would be required to be offered or entered into in srobinson on DSK4SPTVN1PROD with NOTICES2 SUMMARY: 1 In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by California Independent Service Operator Corporation; In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by the Electric Reliability Council of Texas, Inc.; In the matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by ISO New England Inc.; In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by Midwest Independent Transmission System Operator, Inc.; In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by New York Independent System Operator, Inc.; and In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by PJM Interconnection, L.L.C. (Feb. 7, 2012, as amended June 11, 2012). 2 7 U.S.C. 1 et seq. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 a market administered by a Petitioner pursuant to that Petitioner’s tariff or protocol for the purposes of allocating such Petitioner’s physical resources; the relevant tariff or protocol would be required to have been approved or permitted to have taken effect by either the Federal Energy Commission (‘‘FERC’’) or the Public Utility Commission of Texas (‘‘PUCT’’), as applicable; and the contract, agreement or transaction would be required to be entered into by persons who are ‘‘appropriate persons,’’ as defined in section 4(c)(3)(A) through (J) of the Act 3 or ‘‘eligible contract participants,’’ as defined in section 1a(18) of the Act and Commission regulations.4 The exemption as proposed also would extend to any person or class of persons offering, entering into, rendering advice or rendering other services with respect to such transactions. Finally, the exemption would be subject to other conditions set forth therein. Authority for issuing the exemption is found in section 4(c)(6) of the Act.5 The Commission seeks comment on the Petition, the Proposed Exemption and related questions. A copy of the Petition requesting the exemption is available on the Commission’s Web site at http://www.cftc.gov/stellent/groups/ public/@requestsandactions/ documents/ifdocs/isorto4capplication. pdf, with Petition Attachments posted at http://www.cftc.gov/stellent/groups/ public/@requestsandactions/ documents/ifdocs/isorto4cappattach. pdf and an Order 741 Implementation Chart posted at http://www.cftc.gov/ stellent/groups/public/@ requestsandactions/documents/ifdocs/ isorto4cappfercchart.pdf. DATES: Comments must be received on or before September 27, 2012. ADDRESSES: You may submit comments by any of the following methods: • The agency’s Web site, at http:// comments.cftc.gov. Follow the instructions for submitting comments through the Web site. • Mail: David A. Stawick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. • Hand Delivery/Courier: Same as mail above. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. 37 U.S.C. 6(c)(3)(A)–(J). U.S.C. 1a(18). ‘‘Further Definition of ‘Swap Dealer,’ ‘Security-Based Swap Dealer,’ ‘Major Swap Participant,’ ‘Major Security-Based Swap Participant’ and ‘Eligible Contract Participant,’ ’’ 77 FR 30596, May 23, 2012. 5 7 U.S.C. 6(c)(6). 47 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments may be posted as received to http://www.cftc. gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that may be exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the established procedures in CFTC Regulation 145.9 (17 CFR 145.9). The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act. FOR FURTHER INFORMATION CONTACT: Robert B. Wasserman, Chief Counsel, 202–418–5092, rwasserman@cftc.gov, or Laura Astrada, Associate Chief Counsel, 202–418–7622, lastrada@cftc.gov, or Jocelyn Partridge, Special Counsel, 202– 418–5926, jpartridge@cftc.gov, Division of Clearing and Intermediary Oversight; Eve Gutman, Attorney-Advisor, 202– 418–5141, egutman@cftc.gov, Division of Market Oversight; Gloria P. Clement, Assistant General Counsel, 202–418– 5122, gclement@cftc.gov or Thuy Dinh, Counsel, 202–418–5128, tdinh@cftc.gov, Office of the General Counsel; or Robert Pease, 202–418–5863, rpease@cftc.gov, Division of Enforcement; Commodity Futures Trading Commission, Three Lafayette Centre, 1151 21st Street NW., Washington, DC 20581. SUPPLEMENTARY INFORMATION: Table of Contents I. The Petition II. Statutory Background III. Background—FERC and PUCT A. Introduction B. FERC C. PUCT D. FERC & PUCT Oversight IV. Scope of the Exemption A. Transactions Subject to the Exemption B. Conditions C. Additional Limitations V. Section 4(c) Analysis A. Overview of CEA Section 4(c) B. Proposed CEA Section 4(c) Determinations E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices C. FERC Credit Reform Policy D. DCO Core Principle Analysis E. SEF Core Principle Analysis VIII. Proposed Exemption A. Discussion of Proposed Exemption B. Proposed Exemption IX. Related Matters A. Regulatory Flexibility Act B. Paperwork Reduction Act C. Cost-Benefit Considerations X. Request for Comment I. The Petition On February 7, 2012, Petitioners collectively filed a Petition with the Commission requesting that the Commission exercise its authority under section 4(c)(6) of the CEA 6 and section 712(f) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (‘‘Dodd-Frank Act’’) 7 to exempt contracts, agreements and transactions for the purchase or sale of specified electricity products, that are offered pursuant to a FERC- or PUCT-approved tariff, from most provisions of the Act.8 Petitioners include three RTOs (Midwest Independent Transmission System Operator Inc. (‘‘MISO’’); ISO New England, Inc. (‘‘ISO NE’’); and PJM Interconnection, L.L.C. (‘‘PJM’’)), and two ISOs (California Independent System Operator (‘‘CAISO’’) and New York Independent System Operator (‘‘NYISO’’)), whose central role as transmission utilities is subject to regulation by FERC; and the Electric Reliability Council of Texas, Inc. (‘‘ERCOT’’), an entity that performs the role of an ISO but whose central role as a transmission utility in the electric energy market is subject to regulation by PUCT, the authority with jurisdiction to regulate rates and charges for the sale of electric energy within the state of Texas.9 Petitioners represent that the roles, responsibilities and services of ISOs and RTOs are substantially similar.10 As described in greater detail below, FERC encouraged the formation of ISOs to consolidate and manage the operation of electricity transmission facilities in order to provide open, nondiscriminatory transmission service for generators and transmission customers.11 FERC also encouraged the 67 U.S.C. 6(c)(6). Dodd-Frank Act, Public Law 111–203, 124 Stat. 1376 (2010). The text of the Dodd-Frank Act may be accessed at http://www.cftc.gov./ LawRegulation/OTCDERIVATIVES/index.htm. 8 See Petition at 2–3, 6. 9 See Petition at 2–4. See 16 Tex. Admin. Code 25.1 (1998). 10 See Petition at 2 n. 2. 11 See FERC Order 888 Promoting Wholesale Competition Through Open Access NonDiscriminatory Transmission Facilities (‘‘FERC Order 888’’), 61 FR 21540, April 24, 1996; See Petition at 2 n.2, 3. srobinson on DSK4SPTVN1PROD with NOTICES2 7 See VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 formation of RTOs to administer the transmission grid on a regional basis.12 Petitioners specifically request that the Commission exempt from most provisions of the CEA certain ‘‘financial transmission rights,’’ ‘‘energy transactions,’’ ‘‘forward capacity transactions,’’ and ‘‘reserve or regulation transactions,’’ as those terms are defined in the Petition, if such transactions are offered or entered into pursuant to a tariff under which a Petitioner operates that has been approved by FERC or PUCT, as applicable, as well as any persons (including Petitioners, their members and their market participants) offering, entering into, rendering advice, or rendering other services with respect to such transactions.13 Petitioners assert that each of the transactions for which an exemption is requested is (a) subject to a long-standing, comprehensive regulatory framework for the offer and sale of such transactions established by FERC, or in the case of ERCOT, the PUCT, and (b) part of, and inextricably linked to, the organized wholesale electricity markets that are subject to regulation and oversight of FERC or PUCT, as applicable.14 Petitioners expressly exclude from the Petition a request for relief from sections 4b, 4o, 6(c) and 9(a)(2) of the Act 15 and such provisions explicitly have been carved out of the exemption that would be provided by the Proposed Exemption. Petitioners assert that they are seeking the requested exemption in order to provide greater legal certainty with respect to the regulatory requirements that apply to the transactions that are the subject of the Petition.16 Petitioners request that, due to the commonalities in the Petitioners’ markets, the exemption apply to all Petitioners and their respective market participants with respect to each category of electricity-related products described in the Petition, regardless of whether such products are offered or entered into at the current time pursuant to an individual Petitioner’s tariff.17 Petitioners’ assert that this uniformity would avoid an individual Petitioner being required to seek future amendments to the exemption in order to offer or enter into the same type of transactions currently offered by another Petitioner.18 12 See Petition at 3. id. at 2–3. 14 See id. at 11. 15 See id. at 3. 16 See id. at 3, 5–6. 17 See id. at 6. 18 See id. 13 See PO 00000 Frm 00003 Fmt 4701 II. Statutory background On July 21, 2010, President Obama signed the Dodd-Frank Act. Title VII of the Dodd-Frank Act amended the CEA 19 and altered the scope of the Commission’s exclusive jurisdiction.20 In particular, it expanded the Commission’s exclusive jurisdiction, which had included futures traded, executed and cleared on CFTC-regulated exchanges and clearinghouses, to also cover swaps traded, executed, or cleared on CFTC-regulated exchanges or clearinghouses.21 As a result, the Commission’s exclusive jurisdiction now includes swaps as well as futures, and is clearly expressed in CEA section 2(a)(1)(A), which reads: The Commission shall have exclusive jurisdiction, except to the extent otherwise provided in the Wall Street Transparency and Accountability Act of 2010 (including an amendment made by that Act) and subparagraphs (C), (D), and (I) of this paragraph and subsections (c) and (f), with respect to accounts, agreements (including any transaction which is of the character of * * * an ‘‘option’’), and transactions involving swaps or contracts of sale of a commodity for future delivery (including significant price discovery contracts) traded or executed on a contract market * * * or a swap execution facility * * * or any other board of trade, exchange, or market * * *.22 The Dodd-Frank Act also added a savings clause that addresses the roles of the Commission, FERC, and state agencies as they relate to certain agreements, contracts, or transactions traded pursuant to the tariff of an RTO and ISO.23 Toward that end, paragraph (I) of CEA section 2(a)(1) repeats the Commission’s exclusive jurisdiction and clarifies that the Commission retains its authorities over agreements, contracts or transactions traded pursuant to FERCor state-approved tariff or rate schedules.24 The same paragraph (I) also explains that the FERC and state agencies preserve their existing authorities over agreements, contracts, or transactions ‘‘entered into pursuant to a tariff or rate schedule approved by [FERC] or a State regulatory agency,’’ that are: ‘‘(I) not ‘‘executed, traded, or cleared on’’ an entity or trading facility subject to registration or ‘‘(II) executed, traded, or cleared on a registered entity 19 7 U.S.C. 1 et seq. 722(e) of the Dodd-Frank Act. 21 See 7 U.S.C. 2(a)(1)(A). The Dodd-Frank Act also added section 2(h)(1)(A), which requires swaps to be cleared if required to be cleared and not subject to a clearing exception or exemption. See 7 U.S.C. 2(h)(1)(A). 20 Section 22 7 U.S.C. 2(a)(1)(A). 7 U.S.C. 2(a)(1)(I). 24 See 7 U.S.C. 2(a)(1)(I)(i) and (ii). 23 See Sfmt 4703 52139 E:\FR\FM\28AUN2.SGM 28AUN2 52140 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 or trading facility owned or operated by a [RTO] or [ISO].’’ 25 While the Dodd-Frank Act sets forth a clear statement of the Commission’s exclusive jurisdiction and authorities as related to FERC and state regulatory authorities, the Dodd-Frank Act also granted the Commission specific powers to exempt certain contracts, agreements or transactions from duties otherwise required by statute or Commission regulation by adding a new section to the CEA, section 4(c)(6), that permits the Commission to exempt from its regulatory oversight, among other things, agreements, contracts, or transactions traded pursuant to an RTO or ISO tariff that has been approved or permitted to take effect by FERC or a State regulatory authority, as applicable.26 The Commission’s charge, however, is not rote; the Commission must initially determine whether the exemption would be consistent with the public interest and the purposes of the CEA.27 The Commission must act ‘‘in accordance with’’ section 4(c)(1) and (2) 25 7 U.S.C. 2(a)(1)(I)(i)(II). The savings clause in CEA section 2(a)(1)(I) provides that: (I)(i) Nothing in this Act shall limit or affect any statutory authority of the Federal Energy Regulatory Commission or a State regulatory authority (as defined in section 3(21) of the Federal Power Act (16 U.S.C. 796(21)) with respect to an agreement, contract, or transaction that is entered into pursuant to a tariff or rate schedule approved by the Federal Energy Regulatory Commission or a State regulatory authority and is— (I) Not executed, traded, or cleared on a registered entity or trading facility; or (II) Executed, traded, or cleared on a registered entity or trading facility owned or operated by a regional transmission organization or independent system operator. (ii) In addition to the authority of the Federal Energy Regulatory Commission or a State regulatory authority described in clause (i), nothing in this subparagraph shall limit or affect— (I) Any statutory authority of the Commission with respect to an agreement, contract, or transaction described in clause (i); or (II) The jurisdiction of the Commission under subparagraph (A) with respect to an agreement, contract, or transaction that is executed, traded, or cleared on a registered entity or trading facility that is not owned or operated by a regional transmission organization or independent system operator (as defined by sections 3(27) and (28) of the Federal Power Act (16 U.S.C. 796(27), 796(28)). In addition, Dodd-Frank Act section 722(g) (not codified in the United States Code) expressly states that FERC’s pre-existing statutory enforcement authority is not limited or affected by amendments to the CEA. Section 722(g) states: (g) AUTHORITY OF FERC.—Nothing in the Wall Street Transparency and Accountability Act of 2010 or the amendments to the Commodity Exchange Act made by such Act shall limit or affect any statutory enforcement authority of the Federal Energy Regulatory Commission pursuant to section 222 of the Federal Power Act and section 4A of the Natural Gas Act that existed prior to the date of enactment of the Wall Street Transparency and Accountability Act of 2010. 26 See 7 U.S.C. 6(c)(6). 27 See 7 U.S.C. 6(c)(6)(A) and (B). VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 of the CEA, when issuing an electricity exemption under section 4(c)(6).28 Section 4(c)(1) authorizes the Commission, by rule, regulation, or order, to exempt any agreement, contract or transaction, or class thereof, from the exchange-trading requirements of section 4(a) or any other requirements of the Act other than section 2(a)(1)(C)(ii) and (D). The Commission may attach terms and conditions to any exemption it provides. Section 4(c)(2) of the CEA 29 provides that the Commission may not approve an exemption from the execution requirements of the Act, as noted in section 4(a),30 unless the agreement, contract or transaction will be entered into solely between ‘‘appropriate persons,’’ as that term is defined in section 4(c)(3), which does not include retail customers (such as small businesses or individuals). In addition, 28 Section 4(c) was added to the CEA by the Futures Trading Practices Act of 1992, Public Law 102–564. The Commission’s authority under section 4(c) was explained by the Conferees: In granting exemptive authority to the Commission under new section 4(c), the Conferees recognize the need to create legal certainty for a number of existing categories of instruments which trade today outside of the forum of a designated contract market. The provision included in the Conference substitute is designed to give the Commission broad flexibility in addressing these products * * * * * In this respect, the Conferees expect and strongly encourage the Commission to use its new exemptive power promptly upon enactment of this legislation in four areas where significant concerns of legal uncertainty have arisen: (1) Hybrids, (2) swaps, (3) forwards, and (4) bank deposits and accounts. The Commission is not required to ascertain whether a particular transaction would fall within its jurisdiction prior to exercising its exemptive authority under section 4(c). The Conferees stated that they did: not intend that the exercise of exemptive authority by the Commission would require any determination before hand that the agreement, instrument, or transaction for which an exemption is sought is subject to the Act. Rather, this provision provides flexibility for the Commission to provide legal certainty to novel instruments where the determination as to jurisdiction is not straightforward * * * H.R. Rep. No. 978, 102d Cong. 2d Sess., (1992) at 82–83. 29 Section 4(c)(2), 7 U.S.C. 6(c)(2), states: The Commission shall not grant any exemption * * * from any of the requirements of subsection (a) unless the Commission determines that (A) the requirement should not be applied to the agreement, contract, or transaction for which the exemption is sought and that the exemption would be consistent with the public interest and the purposes of this Act; and (B) the agreement, contract, or transaction— (i) Will be entered into solely between appropriate persons; and (ii) Will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under this Act. 30 7 U.S.C. 6(a). PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 the Commission must determine that the agreement, contract or transaction in question will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or selfregulatory duties.31 III. Background—FERC and PUCT A. Introduction Each Petitioner is subject to regulation by FERC, with the exception of ERCOT, which is regulated by PUCT.32 Petitioners assert that the regulatory frameworks administered by FERC or PUCT, as applicable to each particular RTO or ISO market, would apply to the transactions for which an exemption has been requested.33 B. FERC In 1920, Congress established the Federal Power Commission (‘‘FPC’’).34 The FPC was reorganized into FERC in 1977.35 FERC is an independent agency that regulates the interstate transmission of electricity, natural gas and oil.36 FERC’s mission is to ‘‘assist consumers in obtaining reliable, efficient and sustainable energy services at a reasonable cost through appropriate regulatory and market means.’’ 37 This mission is accomplished by pursuing two primary goals. First, FERC seeks to ensure that rates, terms and conditions for wholesale transactions and transmission of electricity and natural gas are just, reasonable and not unduly discriminatory or preferential.38 Second, FERC seeks to promote the development of safe, reliable and efficient energy infrastructure that serves the public interest.39 Both Congress and FERC, through a series of legislative acts and Commission orders, have sought to establish a system whereby wholesale electricity generation and transmission in the United States is governed by two guiding principles; regulation with respect to wholesale electricity 31 See 7 U.S.C. 6(c)(2). Petition at 4. 33 See id. at 11. 34 Federal Power Act, 16 U.S.C. 791a et seq. 35 The Department of Energy Organization Act, Public Law 95–91, section 401, 91 Stat. 565, 582 (1977) (codified as amended at 42 U.S.C. 7171 (1988)). 36 See 42 U.S.C. 7172. 37 See FERC Strategic Plan for Fiscal Years 2009– 2014, 3 (Feb. 2012), http://www.ferc.gov/about/ strat-docs/FY-09-14-strat-plan-print.pdf. 38 Id. 39 Id. 32 See E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 transmission,40 and competition when dealing with wholesale generation.41 In 1996, FERC issued FERC Order 888, which promoted competition in the generation market by ensuring fair access and market treatment by transmission customers.42 Specifically, FERC Order 888 sought to ‘‘remedy both existing and future undue discrimination in the industry and realize the significant customer benefits that will come with open access.’’ 43 FERC Order 888 encouraged the formation of ISOs as a potentially effective means for accomplishing nondiscriminatory open access to the transmission of electrical power.44 In addition, FERC has issued orders that address areas such as increased RTO and ISO participation by transmission utilities, increased use of long-term firm transmission rights, increased investment in transmission infrastructure, reduced transmission congestion and the use of demandresponse.45 The end result of this series of FERC orders is that a regulatory system has been established that requires ISOs and RTOs to comply with numerous FERC rules designed to improve both the reliability of the physical operations of electric transmission systems as well as the 40 The term ‘‘‘wholesale transmission services’ means the transmission of electric energy sold, or to be sold, at wholesale in interstate commerce.’’ See 16 U.S.C. 796 (24)). 41 See generally FERC Order 888. See also FERC’s discussion of electric competition, available at http://www.ferc.gov/industries/electric/indus-act/ competition.asp (stating that ‘‘[FERC]’s core responsibility is to ‘guard the consumer from exploitation by non-competitive electric power companies.’ ’’). 42 See FERC Order 888. 43 FERC Order 888 at 21541. 44 FERC Order 888 at 21594. Under the old system, one party could own both generation and transmission resources, giving preferential treatment to its own and affiliated entities. See generally FERC Order 888. 45 See, e.g., FERC Order 2000, 65 FR 809 (2000)(encouraging transmission utilities to join RTOs); FERC Order No. 681, 71 FR 43294 (2006), FERC Stats. & Regs. ¶ 31,222 (2006), order on reh’g, Order No. 679–A, 72 FR 1152, Jan. 10, 2007, FERC Stats. & Regs. ¶ 31,236, order on reh’g, 119 FERC ¶ 61,062 (2007) (finalizing guidelines for ISOs to follow in developing proposals to provide long-term firm transmission rights in organized electricity markets); FERC Order No. 679, 71 FR 43294 (2006) (finalizing rules to increase investment in the nation’s aging transmission infrastructure, and to promote electric power reliability and lower costs for consumers, by reducing transmission congestion); FERC Order No. 890, 72 FR 12266 (2007)(modifying existing rules to promote the nondiscriminatory and just operation of transmission systems); and FERC Order No. 719–A, 74 FR 37776 (2009) (implementing the use of demand-response (the process of requiring electricity consumers to reduce their electricity use during times of heightened demand), encouraging the use of long-term power contracts and strengthening the role of market monitors). VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 competitiveness of electricity markets. The requirements imposed by the various FERC Orders seek to ensure that FERC is able to accomplish its two main goals; ensuring that rates, terms and conditions are just, reasonable and not unduly discriminatory or preferential, while promoting the development of safe, reliable and efficient energy infrastructure that serves the public interest. C. PUCT In 1975, the Texas Legislature enacted the Public Utility Regulatory Act (‘‘PURA’’) and created PUCT to provide statewide regulation of the rates and services of electric and telecommunications utilities.46 PUCT’s stated mission is to assure the availability of safe, reliable, high quality services that meet the needs of all Texans at just and reasonable rates.47 To this end, PUCT regulates electric and telecommunications utilities while facilitating competition, operation of the free market, and customer choice.48 Subchapter S of TAC § 25 (‘‘Wholesale Markets’’) sets out the rules applicable to ERCOT, which operates a wholesale electricity market in Texas similar to the electricity markets run by the other Petitioners. As with the RTOs and ISOs regulated by FERC, ERCOT is required to have rules that address the regulatory requirements imposed by PUCT.49 These rules address issues similar to those rules imposed by FERC on RTOs and ISOs,50 including matters such as market design, pricing safeguards, market monitoring, monitoring for wholesale market power, resource adequacy and ERCOT emergency response services,51 and are aimed at developing electricity markets that are able to provide reliable, safe and efficient electric service to the people of Texas, while also maintaining rates at an affordable level through the operation of fair competition.52 D. FERC & PUCT Oversight As discussed above, both FERC and PUCT assert that their primary goal in regulating their respective electricity markets is to ensure that consumers are able to purchase electricity on a safe, reliable and affordable basis.53 46 Public Utility Regulatory Act, TEX. UTIL. CODE ANN. 11.001 et seq. (Vernon 1998 & Supp. 2005). 47 16 Texas Admin. Code (‘‘TAC’’) 25.1 (1998). 48 Id. 49 See generally 16 TAC 25.501–25.507. 50 See generally id. 51 See generally id. 52 See generally 16 TAC 25.503. 53 See generally 16 TAC 25.1. See also FERC Strategic Plan for Fiscal Years 2009–2014, 3 (Feb. PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 52141 IV. Scope of the Exemption A. Transactions Subject to the Exemption After due consideration, the Commission proposes to exempt certain Financial Transmission Rights (‘‘FTRs’’), Energy Transactions, Forward Capacity Transactions, and Reserve or Regulation Transactions (collectively, the ‘‘Transactions’’), each as defined below, pursuant to section 4(c)(6) of the Act. An FTR is a transaction, however named, that entitles one party to receive, and obligates another party to pay, an amount based solely on the difference between the price for electricity, established on an electricity market administered by a Petitioner, at a specified source (i.e., where electricity is deemed injected into the grid of a Petitioner) and a specified sink (i.e., where electricity is deemed withdrawn from the grid of a Petitioner).54 The term ‘‘FTR’’ includes Financial Transmission Rights, and Financial Transmission Rights in the form of options (i.e., where one party has only the obligation to pay, and the other party only the right to receive, an amount as described above). As more fully described below, the Proposed Exemption applies only to FTRs where each FTR is linked to, and the aggregate volume of FTRs for any period of time is limited by, the physical capability (after accounting for counterflow) of the electricity transmission system operated by the Petitioner offering the contract for such period: a Petitioner serves as the market administrator for the market on which the FTR is transacted; each party to the Transaction is a member of the particular Petitioner (or is the Petitioner itself) and the Transaction is executed on a market administered by that Petitioner; and the Transaction does not require any party to make or take physical delivery of electricity.55 ‘‘Energy Transactions’’ are transactions in a ‘‘Day-Ahead Market’’ 2012), http://www.ferc.gov/about/strat-docs/FY–09– 14-strat-plan-print.pdf. 54 Petition at 6. 55 Each FTR specifies a direction along a path from a specified source to a specified sink. Counterflow FTRs specify a path where congestion in the physical market is in the opposite direction from the prevailing flow. Holders of counterflow FTRs generally pay congestion revenues to the RTO or ISO. Because counterflow FTRs are expected to result in payment liability to the FTR holder, the price of counterflow FTRS are typically negative. That is, the RTO or ISO pays market participants to acquire them. However, counterflow FTRs may be profitable (and prevailing flow FTRs may result in a payment liability) where congestion in the physical market occurs in direction opposite to that expected. See generally PJM Interconnection, L.L.C., 122 FERC ¶ 61,279 (2008); see also PJM Interconnection, L.L.C, 121 FERC ¶ 61,089 (2007). E:\FR\FM\28AUN2.SGM 28AUN2 52142 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices or ‘‘Real-Time Market,’’ as those terms are defined in the Proposed Exemption, for the purchase or sale of a specified quantity of electricity at a specified location where the price of electricity is established at the time the transaction is executed.56 Performance occurs in the Real-Time Market by either the physical delivery or receipt of the specified electricity or a cash payment or receipt at the price established in the Real-Time Market; and the aggregate cleared volume of both physical and cashsettled energy transactions for any period of time is limited by the physical capability of the electricity transmission system operated by a Petitioner for that period of time.57 Energy Transactions are also referred to as Virtual Bids or Convergence Bids.58 ‘‘Forward Capacity Transactions’’ fall into three distinct categories, Generation Capacity (‘‘GC’’), Demand Response (‘‘DR’’), and Energy Efficiency.59 GC refers to the right of a Petitioner to require certain sellers to maintain the interconnection of electric generation facilities to specific physical locations in the electric power transmission system during a future time period as specified in the Petitioner’s Tariff.60 Furthermore, a GC contract requires a seller to offer specified amounts of electric energy into the Day-Ahead or Real-Time Markets for electricity transactions. A GC contract also requires a seller, subject to the terms and conditions of a Petitioner’s Tariff, to inject electric energy into the electric power transmission system operated by the Petitioner.61 A DR Right gives Petitioners the right to require that certain sellers of such rights curtail their consumption of electricity from Petitioner’s electricity transmission system during a future period of time as specified in the Petitioners’ Tariffs.62 Energy Efficiency Rights (‘‘EER’’) provides Petitioners with the right to require specific performance of an action or actions on the part of the other party that will reduce the need for GC or DR capacity over the duration of a future period of time as specified in the Petitioner’s Tariffs.63 Moreover, for a Forward Capacity Transaction to be 56 See Petition at 7. See also section VIII. below. id. at 7. See also section VIII. below. 58 See id. at 6. 59 See id. at 7–8. 60 See id. at 7. 61 See id. 62 See id. at 7. 63 See id. at 8. Another example of an EER would be requiring an RTO or ISO member to change equipment in order to improve the efficiency of the system, and in turn, reduce the amount of electricity drawn from the system. See also section VIII. below. srobinson on DSK4SPTVN1PROD with NOTICES2 57 See VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 eligible for exemption hereunder, the aggregate cleared volume of all such transactions for any period of time must be limited to the physical capability of the electric transmission system operated by the applicable Petitioner for that period of time. ‘‘Reserve Regulation Transactions’’ allow a Petitioner to purchase through auction, for the benefit of load serving entities (‘‘LSEs’’) and resources, the right, during a period of time specified in the Petitioner’s Tariff, to require the seller to operate electric facilities in a physical state such that the facilities can increase or decrease the rate of injection or withdrawal of electricity to the electric power transmission system operated by the Petitioner with physical performance by the seller’s facilities within a response interval specified in the Petitioner’s tariff (Reserve Transaction), or prompt physical performance by the seller’s facilities (Area Control Error Regulation Transaction).64 In consideration for such delivery, or withholding of delivery, the seller receives compensation of the type specified in section VIII below.65 In all cases, the quantity and specifications for such Transactions for a Petitioner for any period of time are limited by the physical capability of the electric transmission system operated by Petitioners.66 These Transactions are typically used to address unforeseen fluctuations in the level of electricity demand experienced on the electric transmission system. B. Conditions The Proposed Exemption would be subject to certain conditions. First, all parties to the agreements, contracts or transactions that are covered by the Proposed Exemption must be either ‘‘appropriate persons,’’ as such term is defined in sections 4(c)(3)(A) through (J) of the Act, or ‘‘eligible contract participants,’’ as such term is defined in section 1a(18)(A) of the Act and in Commission regulation 1.3(m).67 Second, the agreements, contracts or transactions that are covered by the Proposed Exemption must be offered or sold pursuant to a Petitioner’s tariff, which has been approved or permitted to take effect by: (1) In the case of ERCOT, the PUCT or 64 See id. at 8–9. See also section VIII. below. id. at 8. 66 See id. at 8–9. 67 That is, the Commission is proposing to use its authority pursuant to CEA 4(c)(3)(K) to include eligible contract participants as appropriate persons for the purposes of this Order. See infra n. 80 and accompanying text. 65 See PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 (2) In the case of all other Petitioners, FERC. Third, none of a Petitioner’s tariffs or other governing documents may include any requirement that the Petitioner notify a member prior to providing information to the Commission in response to a subpoena or other request for information or documentation. Finally, information sharing arrangements that are satisfactory to the Commission between the Commission and FERC and between the Commission and PUCT must be in full force and effect.68 C. Additional Limitations As discussed above, the Commission proposes to exempt the Transactions pursuant to section 4(c)(6) of the Act based, in part, on certain representations made by Petitioners as well as the additional limitations that are noted below. As represented in the Petition, the exemption requested by Petitioners relate to Transactions that are primarily entered into by commercial participants that are in the business of generating, transmitting and distributing electricity.69 In addition, the Commission notes that it appears that Petitioners were established for the purpose of providing affordable, reliable electricity to consumers within their geographic region.70 Critically, these Transactions are an essential means, designed by FERC and PUCT as an integral part of their statutory responsibilities, to enable the reliable delivery of affordable electricity.71 The Commission also notes that each of the Transactions taking place on Petitioners’ markets is monitored by Market Monitoring Units (‘‘MMU’’) responsible to either FERC or, in the case of ERCOT, PUCT.72 Finally, as discussed above, each Transaction is directly tied to the physical capabilities of Petitioners’ electricity grids.73 As more fully described below,74 and on the basis of the aforementioned representations, the Commission finds that the Proposed Exemption would be in the public interest for the specified Transactions. 68 As discussed in section VIII.A. below, the Commission and FERC have already entered into a Memorandum of Understanding, a copy of which is available at http://www.ferc.gov/legal/maj-ord-reg/ mou/mou-33.pdf. In addition, the Commission intends on working with the PUCT on an MOU that is mutually satisfactory. 69 See generally Petition at 20. 70 See id. at 3–4. 71 See generally FERC Order 888; FERC Order 2000; 18 CFR 35.34(k)(2); and TAC 25.1. See also Petition at 11, 13–14. 72 Petition at 15–18. 73 See id. at 6–9. 74 See the discussions in sections V.B., V.D., and V.E. below. E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices To be clear, however, financial transactions that are not tied to the allocation of the physical capabilities of an electric transmission grid would not be suitable for exemption because such activity would not be inextricably linked to the physical delivery of electricity. V. Section 4(c)Analysis A. Overview of CEA Section 4(c) 1. Sections 4(c)(6)(A) and (B) The Dodd-Frank Act amended CEA section 4(c) to add sections 4(c)(6)(A) and (B), which provide for exemptions for certain transactions entered into (a) pursuant to a tariff or rate schedule approved or permitted to take effect by FERC, or (b) pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality, as eligible for exemption pursuant to the Commission’s 4(c) exemptive authority.75 Indeed, 4(c)(6) provides that ‘‘[i]f the Commission determines that the exemption would be consistent with the public interest and the purposes of this chapter, the Commission shall’’ issue such an exemption. However, any exemption considered under 4(c)(6)(A) and/or (B) must be done ‘‘in accordance with [CEA section 4(c)(1) and (2)].’’ 76 srobinson on DSK4SPTVN1PROD with NOTICES2 2. Section 4(c)(1) CEA section 4(c)(1) requires that the Commission act ‘‘by rule, regulation or order, after notice and opportunity for hearing.’’ It also provides that the Commission may act ‘‘either unconditionally or on stated terms or 75 The exemption language in section 4(c)(6) reads: (6) If the Commission determines that the exemption would be consistent with the public interest and the purposes of this Act, the Commission shall, in accordance with paragraphs (1) and (2), exempt from the requirements of this Act an agreement, contract, or transaction that is entered into— (A) Pursuant to a tariff or rate schedule approved or permitted to take effect by the Federal Energy Regulatory Commission; (B) Pursuant to a tariff or rate schedule establishing rates or charges for, or protocols governing, the sale of electric energy approved or permitted to take effect by the regulatory authority of the State or municipality having jurisdiction to regulate rates and charges for the sale of electric energy within the State or municipality; or (C) Between entities described in section 201(f) of the Federal Power Act (16 U.S.C. 824(f)). 76 CEA section 4(c)(6) explicitly directs the Commission to consider any exemption proposed under 4(c)(6) ‘‘in accordance with [CEA section 4(c)(1) and (2)].’’ VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 conditions or for stated periods and either retroactively or prospectively or both’’ and that the Commission may provide exemption from any provisions of the CEA except subparagraphs (C)(ii) and (D) of section 2(a)(1).77 3. Section 4(c)(2) CEA section 4(c)(2) requires the Commission to determine that: To the extent an exemption provides relief from any of the requirements of CEA section 4(a), the requirement should not be applied to the agreement, contract or transaction; the exempted agreement, contract, or transactions will be entered into solely between appropriate persons; 78 and the exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the CEA.79 4. Section 4(c)(3) CEA section 4(c)(3) outlines who may constitute an appropriate person for the 77 Section 4(c)(1), 7 U.S.C. 6(c)(1), states: (c)(1) In order to promote responsible economic or financial innovation and fair competition, the Commission by rule, regulation, or order, after notice and opportunity for hearing, may (on its own initiative or on application of any person, including any board of trade designated or registered as a contract market or derivatives transaction execution facility for transactions for future delivery in any commodity under section 5 of this Act) exempt any agreement, contract, or transaction (or class thereof) that is otherwise subject to subsection (a) (including any person or class of persons offering, entering into, rendering advice or rendering other services with respect to, the agreement, contract, or transaction), either unconditionally or on stated terms or conditions or for stated periods and either retroactively or prospectively, or both, from any of the requirements of subsection (a), or from any other provision of this Act (except subparagraphs (C)(ii) and (D) of section 2(a)(1), except that— (A) Unless the Commission is expressly authorized by any provision described in this subparagraph to grant exemptions, with respect to amendments made by subtitle A of the Wall Street Transparency and Accountability Act of 2010— (i) With respect to— (I) Paragraphs (2), (3), (4), (5), and (7), paragraph (18)(A)(vii)(III), paragraphs (23), (24), (31), (32), (38), (39), (41), (42), (46), (47), (48), and (49) of section 1a, and sections 2(a)(13), 2(c)(1)(D), 4a(a), 4a(b), 4d(c), 4d(d), 4r, 4s, 5b(a), 5b(b), 5(d), 5(g), 5(h), 5b(c), 5b(i), 8e, and 21; and (II) Section 206(e) of the Gramm-Leach-Bliley Act (Pub. L. 106–102; 15 U.S.C. 78c note); and (ii) in sections 721(c) and 742 of the Dodd-Frank Wall Street Reform and Consumer Protection Act; and (B) The Commission and the Securities and Exchange Commission may by rule, regulation, or order jointly exclude any agreement, contract, or transaction from section 2(a)(1)(D)) if the Commissions determine that the exemption would be consistent with the public interest. 78 See CEA 4(c)(2)(B)(i) and the discussion of CEA section 4(c)(3) below. 79 CEA section 4(c)(2)(A) also requires that the exemption would be consistent with the public interest and the purposes of the CEA, but that requirement duplicates the requirement of section 4(c)(6). PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 52143 purpose of a 4(c) exemption, including as relevant to this Notice: (a) Any person that fits in one of ten defined categories of appropriate persons; or (b) such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.80 B. Proposed CEA Section 4(c) Determinations In connection with the Proposed Exemption, the Commission has considered and proposes to determine that: (i) The Proposed Exemption is consistent with the public interest and the purposes of the CEA; (ii) CEA section 4(a) should not apply to the transactions or entities eligible for the Proposed Exemption, (iii) the persons eligible to rely on the Proposed Exemption are appropriate persons pursuant to CEA section 4(c)(3); and (iv) the Proposed Exemption will not have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the CEA. 80 Section 4(c)(3), 7 U.S.C. 6(c)(3), provides that: the term ‘‘appropriate person’’ shall be limited to the following persons or classes thereof: (A) A bank or trust company (acting in an individual or fiduciary capacity). (B) A savings association. (C) An insurance company. (D) An investment company subject to regulation under the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.). (E) A commodity pool formed or operated by a person subject to regulation under this Act. (F) A corporation, partnership, proprietorship, organization, trust, or other business entity with a net worth exceeding $1,000,000 or total assets exceeding $5,000,000, or the obligations of which under the agreement, contract or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by any such entity or by an entity referred to in subparagraph (A), (B), (C), (H), (I), or (K) of this paragraph. (G) An employee benefit plan with assets exceeding $1,000,000, or whose investment decisions are made by a bank, trust company, insurance company, investment adviser registered under the Investment Advisers Act of 1940 (15 U.S.C. 80a–1 et seq.), or a commodity trading advisor subject to regulation under this Act. (H) Any governmental entity (including the United States, any state, 4–1 or any foreign government) or political subdivision thereof, or any multinational or supranational entity or any instrumentality, agency, or department of any of the foregoing. (I) A broker-dealer subject to regulation under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) acting on its own behalf or on behalf of another appropriate person. (J) A futures commission merchant, floor broker, or floor trader subject to regulation under this Act acting on its own behalf or on behalf of another appropriate person. (K) Such other persons that the Commission determines to be appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections. E:\FR\FM\28AUN2.SGM 28AUN2 52144 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices 1. Consistent with the Public Interest and the Purposes of the CEA As required by CEA section 4(c)(2)(A), as well as section 4(c)(6), the Commission proposes to determine that the Proposed Exemption is consistent with the public interest and the purposes of the CEA. Section 3(a) of the CEA provides that transactions subject to the CEA affect the national public interest by providing a means for managing and assuming price risk, discovering prices, or disseminating pricing information through trading in liquid, fair and financially secure trading facilities. Section 3(b) of the CEA identifies the purposes of the CEA: srobinson on DSK4SPTVN1PROD with NOTICES2 It is the purpose of this Act to serve the public interests described in subsection (a) through a system of effective self-regulation of trading facilities, clearing systems, market participants and market professionals under the oversight of the Commission. To foster these public interests, it is further the purpose of this Act to deter and prevent price manipulation or any other disruptions to market integrity; to ensure the financial integrity of all transactions subject to this Act and the avoidance of systemic risk; to protect all market participants from fraudulent or other abusive sales practices and misuses of customer assets; and to promote responsible innovation and fair competition among boards of trade, other markets and market participants. The Petitioners assert that the Proposed Exemption would be consistent with the public interest and purposes of the CEA,81 stating generally that: (a) The Transactions have been, and are, subject to a long-standing, comprehensive regulatory framework for the offer and sale of the Transactions established by FERC or PUCT; and (b) the Transactions administered by the RTOs/ISOs or ERCOT are part of, and inextricably linked to, the organized wholesale electricity markets that are subject to FERC and PUCT regulation and oversight.82 For example, Petitioners explain that FERC Order No. 2000 (which, along with FERC Order No. 888, encouraged the formation of RTOs/ISOs to operate the electronic transmission grid and to create organized wholesale electric markets) requires an RTO/ISO to demonstrate that it has four minimum characteristics: (1) Independence from any market participant; (2) a scope and regional configuration which enables the ISO/RTO to maintain reliability and effectively perform its required functions; (3) operational authority for its activities, including being the security coordinator for the facilities 81 See 82 See Petition at 11. id. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 that it controls; and (4) short-term reliability.83 Petitioners highlight that an RTO/ISO must demonstrate to FERC that it performs certain self-regulatory and/or market monitoring functions,84 and the Petition describes the analogous requirements applicable to ERCOT under PUCT and the PURA.85 Of single importance, Petitioners are responsible for ‘‘ensur[ing] the development and operation of market mechanisms to manage transmission congestion. * * * The market mechanisms must accommodate broad participation by all market participants, and must provide all transmission customers with efficient price signals that show the consequences of their transmission usage decisions.’’ 86 Petitioners also explain that the Transactions are primarily entered into by commercial participants that are in the business of generating, transmitting, and distributing electricity,87 and that Petitioners were established for the purpose of providing affordable, reliable electricity to consumers within their geographic region.88 Furthermore, the Transactions that take place on Petitioners’ markets are overseen by a market monitoring function, required by FERC for each Petitioner, and by PUCT in the case of ERCOT, to identify 83 See id. at 13. id. at 13–14 (explaining that each RTO/ISO must employ a transmission pricing system that promotes efficient use and expansion of transmission and generation facilities; develop and implement procedures to address parallel path flow issues within its region and with other regions; serve as a provider of last resort of all ancillary services required by FERC Order No. 888 including ensuring that its transmission customers have access to a real-time balancing market; be the single OASIS (Open-Access Same-Time Information System) site administrator for all transmission facilities under its control and independently calculate Total Transmission Capacity and Available Transmission Capability; provide reliable, efficient and not unduly discriminatory transmission service, it must provide for objective monitoring of markets it operates or administers to identify market design flaws, market power abuses and opportunities for efficiency improvements; be responsible for planning, and for directing or arranging, necessary transmission expansions, additions, and upgrades; and ensure the integration of reliability practices within an interconnection and market interface practices among regions). 85 See id. at 14–15. Pursuant to PURA 39.151(a), ERCOT’s roles and duties are to provide access to the transmission and distribution systems for all buyers and sellers of electricity on nondiscriminatory terms; ensure the reliability and adequacy of the regional electrical network; ensure that information relating to a customer’s choice of retail electric provider is conveyed in a timely manner to the persons who need that information; and ensure that electricity production and delivery are accurately accounted for among the generators and wholesale buyers and sellers in the region. 86 See Petition at 14. See also 18 CFR 35.34(k)(2). 87 See generally Petition at 20. 88 See id. at 3–4. 84 See PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 manipulation of electricity on Petitioners’ markets.89 Fundamental to the Commission’s ‘‘public interest’’ and ‘‘purposes of the [Act]’’ analysis is the fact that the Transactions are inextricably tied to the Petitioners’ physical delivery of electricity, as represented in the Petition.90 An equally important factor is that the Proposed Exemption is explicitly limited to Transactions taking place on markets that are monitored by either an independent market monitor, a market administrator (the RTO/ISO, or ERCOT), or both, and a government regulator (FERC or PUCT). In contrast, an exemption for financial transactions that are not so monitored, or not related to the physical capacity of an electric transmission grid, or not directly linked to the physical generation and transmission of electricity, or not limited to appropriate persons,91 is unlikely to be in the public interest or consistent with the purposes of the CEA and would not be subject to this exemption. Finally, and as discussed in detail below, the extent to which the Proposed Exemption is consistent with the public interest and the purposes of the Act can, in major part, be measured by the extent to which the tariffs and activities of the Petitioners, and supervision by FERC and PUCT, are congruent with, and sufficiently accomplish, the regulatory objectives of the relevant core principles set forth in the CEA for derivatives clearing organizations (‘‘DCOs’’) and swap execution facilities (‘‘SEFs’’). Specifically, providing a means for managing or assuming price risk and discovering prices, as well as prevention of price manipulation and other disruptions to market integrity, are addressed by the core principles for SEFs. Ensuring the financial integrity of the transactions and the avoidance of systemic risk, as well as protection from the misuse of participant assets, are addressed by the core principles for DCOs. Deterrence of price manipulation (or other disruptions to market integrity) and protection of market participants from fraudulent sales practices is achieved by the Commission retaining and exercising its jurisdiction over these matters. Therefore, the Commission has incorporated its DCO/SEF core principle analysis, set forth below, into its consideration of the Proposed 89 See id. at 15–18. id. at 6–9 (describing the Transactions and noting that each of them ‘‘is part of, and inextricably linked to, the organized wholesale electricity markets that are subject to FERC and PUCT regulation and oversight’’). 91 See appropriate persons discussion, below, section V.B.3. 90 See E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices Exemption’s consistency with the public interest and the purposes of the Act. In the same way, the Commission has considered how the public interest and the purposes of the CEA are also addressed by the manner in which Petitioners comply with FERC’s Credit Reform Policy.92 Based on this review, the Commission proposes to determine that the Proposed Exemption is consistent with the public interest and the purposes of the CEA, and the Commission is specifically requesting comment on whether the Proposed Exemption is consistent with the public interest and the purposes of the Act. srobinson on DSK4SPTVN1PROD with NOTICES2 2. CEA Section 4(a) Should Not Apply to the Transactions or Entities Eligible for the Proposed Exemption CEA section 4(c)(2)(A) requires, in part, that the Commission determine that the Transactions covered under the Proposed Exemption should not be subject to CEA section 4(a)—generally, the Commission’s exchange trading requirement for a contract for the purchase or sale of a commodity for future delivery. Based in major part on the Petitioners’ representations, the Commission has examined the Transactions, the Petitioners, and their markets in the context of the CEA core principle requirements applicable to a DCO and to a SEF.93 As further support for this determination, the Commission is also relying on the public interest and the purposes of the Act analysis in subsection 3 below. In so doing, the Commission can determine that, due to the FERC or PUCT regulatory scheme and the RTO/ISO or ERCOT market structure already applicable to the Transactions, the linkage between the Transactions and those regulatory schemes, and the unique nature of the market participants that would be eligible to rely on the Proposed Exemption,94 CEA section 4(a) should not apply to the Transactions under the Proposed Exemption. The Commission is requesting comment on whether its Proposed Exemption of the Transactions from CEA section 4(a) is appropriate. 3. Appropriate Persons CEA section 4a(c)(2)(B)(i) requires that the Commission determine that the Proposed Exemption is properly limited to transactions entered into between 92 See FERC Credit Reform Policy discussion, below, at section V.C. 93 See DCO core principle analysis below, at section V.D.; see also SEF core principle analysis below, at section V.E. 94 See appropriate persons analysis, below, at section V.B.3. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 appropriate persons as described in CEA section 4(c)(3). The Petitioners assert that each Petitioner’s market participants fit within the ‘‘appropriate person’’ requirement under CEA section 4(c)(3), relying primarily on two categories of appropriate persons. The first category includes those entities that have a net worth exceeding $1,000,000 or total assets exceeding $5,000,000, as identified in CEA section 4(c)(3)(F).95 The second group of appropriate persons would fall within a grouping under CEA section 4(c)(3)(K), which includes persons deemed appropriate by the Commission ‘‘in light of their financial or other qualifications, or the applicability of appropriate regulatory protection.’’ 96 The Petitioners explain that FERC has instructed all RTOs and ISOs subject to FERC supervision 97 to create minimum standards for market participants. The Petitioners state that: In Order No. 741, FERC directed each of the ISOs/RTOs to establish minimum criteria for market participants. FERC did not specify the criteria the ISOs/RTOs should apply, but rather directed them to establish criteria through their stakeholder processes. Accordingly, each of the FERC jurisdictional ISOs/RTOs submitted to FERC proposals to establish minimum criteria for participation in their markets. Although ERCOT is not subject to the requirements FERC’s Credit Reform Orders, ERCOT is reviewing its participant eligibility standards to ensure that they are consistent with the requirements of Section 4(c). These proposals were accepted by FERC subject to a supplemental compliance filing to provide for verification of risk management policies and procedures. Although there is some variation among the minimum participation criteria adopted by each ISO/RTO, included in each is a baseline capitalization requirement that participants have net worth of at least $1 million or total assets of at least $10 million.98 95 CEA section 4(c)(3)(F) provides that the following entities are ‘‘appropriate persons’’ that the Commission may exempt under CEA section 4(a). The relevant text of 4(c)(3)(F) provides: ‘‘A corporation, partnership, proprietorship, organization, trust, or other business entity with a net worth exceeding $1,000,000 or total assets exceeding $5,000,000, or the obligations of which under the agreement, contract or transaction are guaranteed or otherwise supported by a letter of credit or keepwell, support, or other agreement by any such entity or by an entity referred to in subparagraph (A), (B), (C), (H), (I), or (K) of this paragraph.’’ 96 CEA 4(c)(3)(K). 97 According to the Petition, ERCOT is reviewing its ‘‘participants eligibility standards to ensure that they are consistent with the requirements of [CEA] Section 4(c).’’ Petition at 27. See also Attachment C to Petition, beginning at Attachments at 27 (‘‘Through its stakeholder process, ERCOT is in the process of developing new eligibility requirements that are comparable to those required by FERC Order No. 741.’’). 98 Petition at 26–27 (citations omitted). PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 52145 However, the Petitioners acknowledge that there are exceptions to this ‘‘baseline capitalization requirement,’’ that is, market participants who do not meet the minimum net worth or total assets criteria under the CEA who pursuant to Petitioners’ Tariffs must post financial security because they are under-capitalized. Nonetheless, as the Petitioners explain, there is an exception to the posting requirement for market participants with small positions. The Petitioners provide the following explanation for the exception: The criteria of some ISOs/RTOs also reduce the financial security posting requirement for certain entities that maintain only small positions on the markets of the ISO/RTO and therefore expose the ISOs/ RTOs to minimal risk. These entities are instead required to post additional financial security with the ISO/RTO in an amount that would depend on the size of their positions. In this regard, a notable number of participants in the markets of some ISOs/ RTOs include cooperatives, municipalities or other forms of public corporate entities which are authorized to own, lease and operate electric generation, transmission or distribution facilities. [99] Such entities’ participation in the ISO/RTO may be necessary to make electricity available within the entire grid for a region. Nevertheless, they are ‘‘appropriate persons’’ because of their active participation in the generation, transmission or distribution of electricity and the knowledge of the wholesale energy market that they have as a consequence of their participation in the physical markets. Moreover, the municipal entities are entitled to recover their costs for native load service through governmentally established retail rates and, accordingly, are able to provide a form of financial security (i.e., the ability to request a retail rate increase to cover increased costs) that is unavailable to other participants in the energy markets. As such, the risk of default by such entities is materially lower than it is for other Market Participants.100 The Commission is proposing to limit the Proposed Exemption to entities that meet one of the appropriate persons categories in CEA section 4(c)(3)(A) through (J), or, pursuant to CEA section 4(c)(3)(K), that otherwise qualify as an eligible contract participant (‘‘ECP’’), as that term has been defined.101 In this 99 The Commission notes here that CEA 4(c)(3)(H) includes as eligible appropriate persons ‘‘Any governmental entity (including the United States, any state, or any foreign government) or political subdivision thereof, or any multinational or supranational entity or any instrumentality, agency, or department of any of the foregoing.’’ This appropriate persons category would cover the municipalities and other government owned market participants. 100 Petition at 27 (citations omitted). 101 See CEA 1(a)(12). See also ‘‘Further Definition of ‘Swap Dealer,’ ‘Security-Based Swap Dealer,’ ‘Major Swap Participant,’ ‘Major Security-Based E:\FR\FM\28AUN2.SGM Continued 28AUN2 srobinson on DSK4SPTVN1PROD with NOTICES2 52146 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices connection, the Commission notes that the municipal entities discussed above appear to qualify as ‘‘appropriate persons’’ pursuant to CEA section 4(c)(3)(H).102 Based on representations contained in the Petition, the Commission can determine the Proposed Exemption is limited to appropriate persons for those market participants meeting the categories described defined in CEA section 4(c)(3)(A) through (J). The CFTC is requesting comment as to whether the entities defined in CEA section 4(c)(3)(A) through (J) are appropriate persons for the purpose of the Proposed Exemption. For those ECPs engaging in Transactions in markets administered by the Petitioner that do not fit within 4(c)(3)(A) through (J), the Commission is proposing to determine that they are appropriate persons pursuant to section 4c(3)(K), ‘‘in light of their financial or other qualifications, or the applicability of appropriate regulatory protections’’ to the extent that such persons are otherwise ECPs. The Commission can base this determination on the financial security posting schemes, described by the Petitioners, applicable to the entities engaging in the Transactions, as well as the market based protections applicable to the Transactions regardless of participant, as described in the Commission’s public interest and purposes of the Act analysis, above. In addition, CEA section 2(e) permits all ECPs to engage in swaps transactions other than on a designated contract market (‘‘DCM’’), and so such entities should similarly be appropriate persons for the purpose of the Proposed Exemption. The Commission is requesting comment on whether the market participants entering into the Transactions in markets administered by the Petitioners, particularly those that do not fit within 4(c)(3)(A) through (J), but that are ECPs, may nonetheless be appropriate persons pursuant to CEA section 4(c)(3)(K), in light of the financial posting scheme that applies to such participants, and in light of the regulatory and market oversight programs that apply to the Transactions in the Petitioners’ markets. The Commission also requests comment as to whether there are currently entities engaging in the Transactions that are neither entities that fall within CEA section 4(c)(3)(A) Swap Participant’ and ‘Eligible Contract Participant,’ ’’ 77 FR 30596, May 23, 2012. 102 See 7 U.S.C. 6(c)(3)(H) (‘‘Any governmental entity * * * including * * * any state * * * or political subdivision thereof * * * or any instrumentality, agency or department of any of the foregoing.’’) VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 through (J) entities nor ECPs. If there are such entities, on what basis may the Commission similarly conclude that such entities are, pursuant to CEA section 4(c)(3)(K), appropriate persons for the purpose of the Proposed Exemption? In particular, the Commission seeks comment as to whether there any other of the Petitioners’ market participants that ‘‘active[ly] participat[e] in the generation, transmission or distribution of electricity’’ that are not ECPs and do not fall within CEA section 4(c)(3)(A) through (J), who should nonetheless be included as appropriate persons pursuant to CEA section 4(c)(3)(K). 4. Will Not Have a Material Adverse Effect on the Ability of the Commission or Any Contract Market To Discharge Its Regulatory or Self-Regulatory Duties Under the CEA CEA section 4(c)(2)(B)(ii) requires the Commission to determine that the Transactions subject to the Proposed Exemption will not have a material adverse effect on the ability of the Commission or any contract markets to perform regulatory or self-regulatory duties.103 In making this determination, Congress indicated that the Commission is to consider such regulatory concerns as ‘‘market surveillance, financial integrity of participants, protection of customers and trade practice enforcement.’’ 104 These considerations are similar to the purposes of the Act as defined in CEA section 3, initially addressed in the public interest discussion, above. Petitioners contend that the Proposed Exemption will not have a material adverse effect on the Commission’s or any contract market’s ability to discharge its regulatory function,105 asserting that: Under Section 4(d) of the Act, the Commission will retain authority to conduct investigations to determine whether [Petitioners] are in compliance with any exemption granted in response to this request. * * * [T]he requested exemptions would also preserve the Commission’s existing enforcement jurisdiction over fraud and manipulation. This is consistent with section 722 of the Dodd-Frank Act, the existing MOU between the FERC and the Commission and other protocols for interagency cooperation. The [Petitioners] will continue to retain records related to the Transactions, consistent with existing obligations under FERC and PUCT regulations. The regulation of exchange-traded futures contracts and significant price discovery These factors appear to support the Proposed Exemption. In addition, the limitation of the exemption to Transactions between certain ‘‘appropriate persons’’ as discussed above, avoids potential issues regarding financial integrity and customer protection. That is, this approach would appear to ensure that Transactions subject to this Proposed Exemption would be limited to sophisticated entities that are able to, from a financial standpoint, understand and manage risks associated with such Transactions. Moreover, the Proposed Exemption does not exempt Petitioners from CEA sections 2(a)(1)(B), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9, and 13, to the extent that those sections prohibit fraud or manipulation of the price of any swap, contract for the sale of a commodity in interstate commerce, or for future delivery on or subject to the rules of any contract market. Therefore, the Commission retains authority to pursue fraudulent or manipulative conduct.107 In addition, it appears that granting the exemption for the Transactions will not have a material adverse effect on the ability of any contract market to discharge its self-regulatory duties under the Act. With respect to FTRs, Forward Capacity Transactions, and Reserve or Regulation Transactions, these transactions do not appear to be used for price discovery or as settlement prices for other transactions in Commission regulated markets. Therefore, the Proposed Exemption should not have a material adverse effect on any contract market carrying out its self-regulatory function. With respect to Energy Transactions, these transactions do have a relationship to Commission regulated markets because they can serve as a source of settlement prices for other transactions within Commission jurisdiction. Granting the Proposed Exemption, however, should not pose regulatory burdens on a contract market because, as discussed in more detail below, Petitioners have market monitoring systems in place to detect 103 CEA 104 See 4(c)(2)(B). H.R. No. 978, 102d Cong. 2d Sess. 79 contracts (‘‘SPDCs’’) will be unaffected by the requested exemptions. Futures contracts based on electricity prices set in the Petitioners’ markets that are traded on a designated contract market and SPDCs will continue to be regulated by and subject to the requirements of the Commission. No current requirement or practice of the ISOs/RTOs or of a contract market will be affected by the Commission’s granting the requested exemptions.106 (1992). 105 See Petition at 28. PO 00000 Frm 00010 Fmt 4701 106 See id. at 28. did the Petitioners seek an exemption from these provisions. See id. at 2–3. 107 Nor Sfmt 4703 E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices and deter manipulation that takes place on their markets. Also, as a condition of the Proposed Exemption, the Commission would be able to obtain data from FERC and PUCT with respect to activity on Petitioners’ markets that may impact trading on Commission regulated markets. Finally, the Commission notes that if the Transactions ever could be used in combination with trading activity or a position in a DCM contract to work some market abuse, both the Commission and DCMs have sufficient independent authority over DCM market participants to monitor for such activity.108 Typically, cross-market abuse schemes will involve a reportable position in the DCM contract involved. In which case, Commission Regulation 18.05 requires the reportable trader to keep books and records evidencing all details concerning cash and over-thecounter positions and transactions in the underlying commodity and to provide such data to the Commission upon demand. Likewise, recentlyadopted Commission regulation 38.254(a) requires that DCMs have rules that require traders to keep records of their trading, including records of their activity in the underlying commodity and related derivatives markets, and make such records available, upon request, to the DCM.109 The CFTC is requesting comment as to whether the Proposed Exemption will have a material adverse effect on the ability of the Commission or any contract market to discharge its regulatory or self-regulatory duties under the Act, and, if so, what conditions can or should be imposed on the Order to mitigate such effects. C. FERC Credit Reform Policy srobinson on DSK4SPTVN1PROD with NOTICES2 On October 21, 2010, FERC amended its regulations to encourage clear and consistent risk and credit practices in the organized wholesale electric markets to, inter alia, ‘‘ensure that all rates charged for the transmission or sale of electric energy in interstate commerce are just, reasonable, and not unduly discriminatory or preferential.’’ 110 108 The Commission notes that its authority to prosecute market abuses involving Transactions would not be limited to instances where Transactions were part of some cross-market scheme involving DCM trading activity. 109 Final Rulemaking—Core Principles and Other Requirements for Designated Contract Markets, 72 FR 36612 (June 19, 2012). 110 75 FR 65942, 65942, Oct. 21, 2010 (the ‘‘FERC Original Order 741’’). These requirements were later slightly amended and clarified in an order on rehearing. See 76 FR 10492, Feb. 25, 2011 (‘‘FERC Revised Order 741’’, and together with Original Order 741, ‘‘FERC Order 741’’). VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 In effect, Order 741 requires those RTOs and ISOs that are subject to FERC supervision to implement the following reforms: ‘‘shortened settlement timeframes, restrictions on the use of unsecured credit, elimination of unsecured credit in all [FTRs] or equivalent markets, adoption of steps to address the risk that RTOs and ISOs may not be allowed to use netting and set-offs, establishment of minimum criteria for market participation, clarification regarding the organized markets’ administrators’ ability to invoke ‘material adverse change’ clauses to demand additional collateral from participants, and adoption of a two-day grace period for ‘curing’ collateral calls.’’ 111 Unlike the other Petitioners, ERCOT is regulated by the PUCT, not FERC. As a result, ERCOT is not subject to the particular stringent credit and risk management standards set forth in Order 741. As discussed below regarding conditions precedent starting on page 103 infra, the Commission is proposing to require compliance with the standards of Order 741 by all Petitioners, including ERCOT, as a condition to issuing the Proposed Exemption. As discussed in more detail below, particularly in section V.C., the requirements set forth in Order 741 appear to achieve goals similar to the regulatory objectives of the Commission’s DCO Core Principles. FERC regulation 35.47(c) calls for the elimination of unsecured credit in the financial transmission rights markets and equivalent markets.112 This requirement appears to be congruent with Core Principle D’s requirement that each DCO limit its exposure to potential losses from defaults by clearing members. Because, according to FERC, risks arising out of the FTR markets are ‘‘difficult to quantify,’’ 113 eliminating the use of unsecured credit in these markets may help avoid the unforeseen and substantial costs for an RTO or ISO in the event of a default.114 Thus, the requirement set forth in regulation 111 FERC Revised Order 741 at 10492–10493. CFR 35.47(c). 113 Specifically, FERC stated that ‘‘the risk associated with the potentially rapidly changing value of FTRs warrants adoption of risk management measures, including the elimination of unsecured credit. Because financial transmission rights have a longer-dated obligation to perform which can run from a month to a year or more, they have unique risks that distinguish them from other wholesale electric markets, and the value of a financial transmission right depends on unforeseeable events, including unplanned outages and unanticipated weather conditions. Moreover, financial transmission rights are relatively illiquid, adding to the inherent risk in their valuation.’’ FERC Original Order 741 at 65950. 114 Id. at 65949. 112 18 PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 52147 35.47(c) appears to advance the objectives of Core Principle D by reducing risk and minimizing the effect of defaults through the elimination of unsecured credit in the FTR and equivalent markets. In addition, FERC regulation 35.47(a) requires RTOs and ISOs to have tariff provisions that ‘‘[l]imit the amount of unsecured credit extended by [an RTO or ISO] to no more than $50 million for each market participant.’’ 115 This requirement appears to be congruent with one of the regulatory objectives of Core Principle D, as implemented by Commission Regulation 39.13, specifically the requirement that each DCO limit its exposure to potential losses from defaults by clearing members. In capping the use of unsecured credit at $50 million, FERC stated its belief that RTOs and ISOs ‘‘could withstand a default of this magnitude by a single market participant,’’ 116 thereby limiting an RTO’s or ISO’s exposure to potential losses from defaults by its market participants. Thus, it seems both Core Principle D and FERC regulation 35.47(a) help protect the markets and their participants from unacceptable disruptions, albeit in different ways and to a different extent. FERC regulation 35.47(b) mandates that RTOs and ISOs have billing periods and settlement periods of no more than seven days.117 While this mandate does not meet the standards applicable to registered DCOs,118 it supports Core Principle D’s requirement that each DCO have appropriate tools and procedures to manage the risks associated with discharging its responsibilities. In promulgating FERC regulation 35.47(b), FERC found a shorter cycle necessary to promote market liquidity and a necessary change ‘‘to reduce default risk, the costs of which would be socialized across market participants and, in certain events, of market disruptions that could undermine overall market function.’’ 119 Recognizing the correlation between a reduction in the length of the ‘‘settlement cycle’’ and a reduction in costs attributed to a default, FERC stated that shorter cycles reduce the amount of unpaid debt left outstanding, which, in 115 In addition, FERC regulation 35.47(a) states that ‘‘where a corporate family includes more than one market participant participating in the same [RTO or ISO], the limit on the amount of unsecured credit extended by that [RTO or ISO] shall be no more than $50 million for the corporate family.’’ 18 CFR 35.47(a). 116 FERC Original Order 741 at 65948. 117 18 CFR 35.47(b). 118 See 17 CFR 39.14(b) (requiring daily settlements). 119 FERC Original Order 741 at 65946. E:\FR\FM\28AUN2.SGM 28AUN2 srobinson on DSK4SPTVN1PROD with NOTICES2 52148 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices turn, reduces ‘‘the size of any default and therefore reduces the likelihood of the default leading to a disruption in the market such as cascading defaults and dramatically reduced market liquidity.’’ 120 Thus, FERC regulation 35.47(b) appears to aid RTOs and ISOs in managing the risks associated with their responsibilities, which also appears to support Core Principle D’s goals. FERC regulation 35.47(d) requires RTOs and ISOs to ensure the enforceability of their netting arrangements in the event of the insolvency of a member by doing one of the following: (1) Establish a single counterparty to all market participant transactions, (2) require each market participant to grant a security interest in the receivables of its transactions to the relevant RTO or ISO, or (3) provide another method of supporting netting that provides a similar level of protection to the market that is approved by FERC.121 In the alternative, the RTOs and ISOs would be prohibited from netting market participants’ transactions, and required to establish credit based on each market participant’s gross obligations. Congruent to the regulatory objectives of Core Principles D and G, FERC regulation 35.47(d) attempts to ensure that, in the event of a bankruptcy of a participant, ISOs/RTOs are not prohibited from offsetting accounts receivable against accounts payable. In effect, this requirement attempts to clarify an ISO’s or RTO’s legal status to take title to transactions in an effort to establish mutuality in the transactions as legal support for set-off in bankruptcy.122 This clarification, in turn, would appear to limit an RTO’s or ISO’s exposure to potential losses from defaults by market participants. FERC regulation 35.47(e) limits the time period within which a market participant must cure a collateral call to no more than two days.123 This requirement appears to be congruent with Core Principle D’s requirement that each DCO limit its exposure to potential losses from defaults by clearing members. In Original Order 741, FERC stated that a two day time period for curing collateral calls balances (1) the need for granting market participants sufficient time to make funding arrangements for collateral calls with (2) the need to minimize uncertainty as to a participant’s ability to participate in the market, as well as the risk and costs of a default by a participant. By requiring each ISO and RTO to include this two day cure period in the credit provisions of its tariff language, FERC regulation 35.47(e) appears to both promote the active management of risks associated with the discharge of an RTO’s or ISO’s responsibilities, while at the same time limiting the potential losses from defaults by market participants. FERC regulation 35.47(f) imposes minimum market participant eligibility requirements that apply consistently to all market participants and, as set forth in the preamble to Original Order 741, requires RTOs and ISOs to engage in periodic verification of market participant risk management policies and procedures.124 The Commission believes that the requirements set forth in FERC regulation 35.47(f) appear congruent with some of the regulatory objectives of DCO Core Principle C, as implemented by Commission regulation 39.12. In general, DCO Core Principle C requires each DCO to establish appropriate admission and continuing eligibility standards for members of, and participants in, a DCO that are objective, publicly disclosed, and permit fair and open access.125 In addition, Core Principle C also requires that each DCO establish and implement procedures to verify compliance with each participation and membership requirement, on an ongoing basis.126 Similarly, while FERC regulation 35.47(f) does not prescribe the particular participation standards that must be implemented, as suggested in the preamble to Original Order 741, these standards should address ‘‘adequate capitalization, the ability to respond to ISO/RTO direction and expertise in risk management’’ 127 and ensure that proposed tariff language ‘‘is just and reasonable and not unduly discriminatory.’’ 128 Moreover, FERC specifically stated that these participation standards ‘‘could include the capability to engage in risk management or hedging or to out-source this capability with periodic compliance verification, to make sure that each market participant has adequate risk management capabilities and adequate capital to engage in trading with minimal risk, and related costs, to the market as a whole.’’ 129 Thus, both DCO 120 Id. 124 18 121 18 125 7 CFR 35.47(d). 11 U.S.C. 553; see generally In re SemCrude, L.P., 399 B.R. 388 (Bankr. D. Del. 2009), aff’d, 428 B.R. 590 (D. Del. 2010). 123 18 CFR 35.47(e). 122 See VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 CFR 35.47(f). U.S.C. 7a–1(c)(2)(C). 126 Id. 127 FERC Original Order 741 at 65956. 128 Id. 129 Id. PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 Core Principle C and Order 741 appear to promote fair and open access for market participants as well as impose compliance verification requirements. FERC regulation 35.47(g) requires ISOs and RTOs to specify in their tariffs the conditions under which they will request additional collateral due to a material adverse change.130 FERC, however, noted that the examples set forth in each ISO’s or RTO’s tariffs are not exhaustive and that ISOs and RTOs are permitted to use ‘‘their discretion to request additional collateral in response to unusual or unforeseen circumstances.’’ 131 The Commission believes that the requirements set forth in FERC regulation 35.47(g) appear congruent with the following DCO Core Principle D requirements: (1) That DCOs have appropriate tools and procedures to manage the risks associated with discharging its responsibilities, and (2) that DCOs limit their exposure to potential losses from defaults by clearing members.132 By requiring ISOs and RTOs to actively consider the circumstances that could give rise to a material adverse change, FERC appears to be encouraging RTOs and ISO to actively manage their risks to ‘‘avoid any confusion, particularly during times of market duress, as to when such a clause may be invoked.’’ 133 Moreover, such clarification could prevent a market participant’s ability to ‘‘exploit ambiguity as to when a market administrator may invoke a ‘material adverse change,’ or a market administrator may be uncertain as to when it may invoke a ‘material adverse change,’ ’’ 134 thereby avoiding potentially harmful delays or disruptions that could subject the RTOs and ISOs to unnecessary damage. As such, on the basis of the representations contained in the Petition, including the fact that, as discussed in further detail below, 135 the Commission is considering whether to require each Petitioner, including ERCOT, to comply with, and fully implement, the requirements set forth in Order 741 as a prerequisite to the granting of a limited 4(c)(6) exemption for the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 130 18 CFR 35.47(g). Original Order 741 at 65957. 132 7 U.S.C. 7a 1(c)(2)(D). 133 FERC Original Order 741 at 65958. 134 Id. 135 See infra text at n. 398. 131 FERC E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices D. DCO Core Principle Analysis 1. DCO Core Principle A: Compliance With Core Principles Core Principle A requires a DCO to comply with each core principle set forth in section 5b(c)(2) of the CEA, as well as any requirement that the Commission may impose by rule or regulation pursuant to section 8a(5) of the Act for a DCO to be registered and maintain its registration.136 In addition, Core Principle A states that a DCO shall have reasonable discretion in establishing the manner by which it complies with each core principle subject to any rule or regulation prescribed by the Commission.137 Petitioners represent that, although they are principally regulated by FERC and PUCT and that there are differences between Petitioners and registered DCOs, Petitioners’ practices are consistent with the core principles for DCOs.138 Petitioners represent that, though their methods are different than those employed by a registered DCO, their practices achieve the goals of, and are consistent with, the policies of the Act.139 Based upon Petitioners’ representations and the core principle discussions below, and in the context of the Petitioners’ activities with respect to the Transactions within the scope of this Proposed Exemption, Petitioners’ practices appear congruent with, and to accomplish sufficiently, the regulatory objectives of each DCO core principle. The Commission seeks comment with respect to this preliminary conclusion. srobinson on DSK4SPTVN1PROD with NOTICES2 2. DCO Core Principle B: Financial and Operational Resources Core Principle B requires a DCO to have adequate financial, operational, and managerial resources to discharge each of its responsibilities.140 In addition, a DCO must have financial resources that, at a minimum, exceed the total amount that would: (i) Enable the DCO to meet its financial obligations to its clearing members notwithstanding a default by the clearing member creating the largest financial exposure for the DCO in extreme but plausible market conditions; and (ii) enable the DCO to cover its operating costs for a period of 1 year, as calculated on a rolling basis.141 a. Financial Resources Petitioners represent that they maintain sufficient financial resources 136 7 U.S.C. 7a–1(c)(2)(A)(i). U.S.C. 7a–1(c)(2)(A)(ii). 138 Petition Attachments at 1. 139 Id. 140 7 U.S.C. 7a–1(c)(2)(B)(i). 141 7 U.S.C. 7a–1(c)(2)(B)(ii). 137 7 VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 to meet their financial obligations to their members notwithstanding a default by the member creating the largest financial exposure for that organization in extreme but plausible market conditions.142 As an initial matter, Petitioners apply the defaulting market participant’s collateral to the outstanding obligation.143 Further, if the collateral is inadequate to cover the obligation, Petitioners’ tariffs permit them to charge the loss to nondefaulting market participants.144 For some Petitioners, other resources are available. For example, one Petitioner represents that it has the ability to draw upon its working capital fund and/or its revolving credit facility to ensure that market participants are paid in full.145 Another Petitioner states that defaults are socialized after realizing any collateral specific to the defaulting participant, claims paid by third-party default insurance, funds from accrued collected penalties for Late Payment Accounts, and, for liquidity purposes, third-party financing.146 In the event that a default occurs and there is inadequate collateral for a particular participant, the Petitioners’ represent that the deficiencies would be addressed by mutualization among the non-defaulting participants to whom the Petitioner would otherwise be obligated, allocated pursuant to a pre-determined formula that is included in each Petitioner’s tariff.147 This process is often referred to as ‘‘short-paying.’’ 148 Once the amount of the default is deemed to be uncollectible [by the Petitioner], the short-pay would, in some cases, be ‘‘uplifted’’ or ‘‘socialized’’ across the market, with the losses reallocated among all nondefaulting participants.149 On the basis of these representations, the Commission believes that each Petitioner’s financial resource 142 See Petition Attachments at 3–20. e.g., id. at. 4, 8–9, 10, 15, 20. 144 See id. at 4, 8, 10, 13, 15, 20. 145 See id. at 15. The Commission notes Regulation 39.11(b) includes the following as financial resources eligible to satisfy a DCO’s requirement to have sufficient financial resources to cover a default by the member creating the largest financial exposure: (a) Margin, (b) the DCO’s own capital, (c) guaranty fund deposits, (d) default insurance, (e) potential assessments for additional guaranty fund contributions, if permitted by the DCO’s rules, and (f) any other financial resource deemed acceptable by the Commission. See 17 CFR 39.11(b)(1). The Commission notes that the revolving credit facility cited by NYISO would not satisfy the financial resource requirement, but would be considered in determining liquidity. See 17 CFR 39.11(e)(1)(iii). 146 See Petition Attachments at 10–11. 147 See, e.g., id. at 9, 13. 148 See, e.g., id. at 15. 149 See, e.g., id. at 9, 13. 143 See, PO 00000 Frm 00013 Fmt 4701 Sfmt 4703 52149 requirements appear to be congruent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle B in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. b. Operational Resources Each Petitioner represents that it has sufficient operational resources to cover its operating costs through a charge allocated to its participants and set forth in its Tariffs, which are approved by FERC and PUCT, as applicable.150 Petitioners represent that the charge is based on expected costs for the following year.151 Under the regulatory structure in the wholesale electric industry, market participants are obligated to pay the fees required by the Petitioners,152 and are thus, in a sense, a ‘‘captive audience.’’ Moreover, since market participant defaults are mutualized amongst the non-defaulting participants,153 Petitioners represent that such defaults would not impair their ability to cover their operating costs, because the Petitioners would continue to collect sufficient funds from all other market participants to pay such operating expenses.154 Therefore, these policies and procedures appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle B in the context of the Transactions. The Commission seeks comment with respect to this preliminary conclusion. c. Managerial Resources Each of the Petitioners represents that it has adequate managerial resources to discharge its responsibilities as an organized wholesale electricity market.155 The Commission notes that FERC Order No. 888 sets forth the principles used by FERC to assess ISO proposals and requires that ISOs have appropriate incentives for efficient management and administration.156 This requirement provides that ISOs should procure the services needed for such management and administration in an open competitive market, similar to how Core Principle B requires a DCO to possess managerial resources necessary 150 See id. at 3–20. Some Petitioners state that the charge is allocated to their market participants based on the level of their usage of the Petitioner’s services or on the volume of their market transactions. See, e.g., id. at 4, 13, and 20. 151 See, e.g., id. at 4, 10, 16. 152 See, e.g., id. at 16, 20. 153 See id. at 4–20. 154 See id. at 16. 155 See id. at 3–20. 156 See generally FERC Order 888 at 21540. E:\FR\FM\28AUN2.SGM 28AUN2 52150 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices to discharge each responsibility of the DCO. Similarly, with respect to ERCOT, PUCT’s Substantive Rules require that ERCOT’s Enterprise Risk Management Group has adequate resources to perform its functions, which includes assessing market participant creditworthiness.157 In addition, FERC Order No. 2000 requires that RTOs have an open architecture so that the RTO and its members have the flexibility to improve their organizations in the future in terms of structure, geographic scope, market support and operations in order to adapt to an environment that is rapidly changing and meet market needs.158 Petitioners represent that they maintain the staff and labor necessary to fulfill their obligations and responsibilities, and only employ persons who are appropriately qualified, skilled and experienced in their respective trades or occupations 159 Based on these representations, the Petitioners managerial resources appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle B in the context of the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 3. DCO Core Principle C: Participant and Product Eligibility DCO Core Principle C requires each DCO to establish appropriate admission and continuing eligibility standards for member and participants (including sufficient financial resources and operational capacity), as well as to establish procedures to verify, on an ongoing basis, member and participant compliance with such requirements.160 The DCO’s participant and membership requirements must also be objective, be publicly disclosed, and permit fair and open access.161 In addition, Core Principle C obligates each DCO to establish appropriate standards for determining the eligibility of agreements, contracts, or transactions submitted to the DCO for clearing.162 srobinson on DSK4SPTVN1PROD with NOTICES2 a. FERC Credit Policy Requirements As discussed above, the FERC Credit Policy appears to impose participant 157 P.U.C. SUBST. R. 25.361(b). See also Petition Attachments at 7–8. 158 Id. at 502. 159 See Petition Attachments at 3–20. 160 7 U.S.C. 7a–1(c)(2)(C). 161 Id. 162 Id. As set forth above, the exemption that would be provided by the Proposed Exemption would be available only with respect to the transactions specifically delineated therein. Accordingly, the DCO Core Principle C analysis is limited to a discussion of the Petitioners’ participant eligibility requirements. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 eligibility requirements that are consistent with regulatory objectives of DCO Core Principle C.163 In the FERC Credit Policy, FERC notes that ‘‘[h]aving minimum criteria in place can help minimize the dangers of mutualized defaults posed by inadequately prepared or under-capitalized participants.’’ 164 Specifically, FERC regulation 35.47(f) requires organized wholesale electric markets to adopt tariff provisions that require minimum market participant eligibility criteria.165 Though the regulation does not prescribe the particular participation standards that must be implemented; in the rule’s preamble, FERC suggests that such standards should address ‘‘adequate capitalization, the ability to respond to ISO/RTO direction and expertise in risk management.’’ 166 Regarding risk management, FERC further suggests that minimum participant eligibility criteria should ‘‘include the capability to engage in risk management or hedging or to out-source this capability with periodic compliance verification.’’ 167 Although market participant criteria may vary among different types of market participants, all market participants must be subject to some minimum criteria.168 An RTO or ISO subject to FERC’s supervision is obligated to establish market participant criteria, even if the RTO or ISO applies vigorous standards in determining the creditworthiness of its market participants.169 Because the minimum participation criteria that will be adopted by Petitioners will be included in their respective tariffs, which are publicly available on each Petitioner’s Web site, such criteria will be publicly disclosed. 163 See, supra n. 127 and accompanying text. Original Order 741 at 665955. 165 18 CFR 35.47(f). 166 FERC Original Order 741 at 665956. 167 Id. 168 Although the FERC Credit Policy states that FERC ‘‘directs that [the market participation criteria] apply to all market participants rather than only certain participants,’’ FERC clarified this comment in its Order of Rehearing by stating that its intent ‘‘was that there be minimum criteria for all market participants and not that all market participants necessarily be held to the same criteria’’ based upon, for example, the size of the participant’s positions. See FERC Revised Order 741 at n. 43. This approach appears to be consistent with Commission regulation 39.12, which implements Core Principle C and requires that participation requirements for DCO members be risk-based. 169 See FERC Original Order 741 at 665956 (noting that ‘‘An ISO or RTO’s ‘‘ability to accurately assess a market participant’s creditworthiness is not infallible’’ and ‘‘[w]hile an analysis of creditworthiness may capture whether the market participant has adequate capital, it may not capture other risks, such as whether the market participant has adequate expertise to transact in an RTO/ISO market.’’). 164 FERC PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 In addition, FERC notes that it reviews proposed tariff language ‘‘to ensure that it is just and reasonable and not unduly discriminatory,’’ 170 which practice would appear to be consistent with DCO Core Principle C’s directive that market participation standards permit fair and open access. b. The Petitioners’ Representations Each Petitioner represents that it either has adopted minimum participant eligibility criteria or is in the process of establishing minimum participant eligibility criteria 171 that include capitalization requirements (which may provide for the posting of additional collateral by less-well-capitalized members). The capitalization requirements appear to be risk-based in that the requirements may vary by type of market and/or type or size of participant.172 In addition, some Petitioners require that participants in certain markets satisfy specified credit requirements,173 as well as standards related to risk management,174 training and testing,175 and the disclosure of material litigation or regulatory sanctions, bankruptcies, mergers, acquisitions, and activities in the wholesale electricity market.176 Petitioners also represent that they impose operational capability requirements,177 and either maintain tariffs, or have filed proposed amendments to their existing tariffs, that incorporate requirements that would enable Petitioners to periodically verify the risk management standards and procedures of market participants.178 This verification may be required on either a random basis or based upon identified risks. Furthermore, some Petitioners require attestations of continued compliance with other elements of their participation eligibility criteria.179 170 Id. 171 See Petition Attachments at 22–54. id. at 22–54. 173 See, e.g., id. at 22 (CAISO requires CRR holders to have a minimum amount of available credit in order to participate in a CRR auction). 174 See id. at 23, 35, 44–45. 175 See id. at 22, 35, 44. 176 See id. at 33. 177 See id. at 23, 37–38, 39, 48. 178 See id. at 23, 35–36, 38, 44–45, 49. 179 For example, CAISO requires market participants to attest annually that they satisfy CAISO’s minimum participation requirements related to capitalization, training and the operational capability to comply with CAISO’s direction. See id. at 23. Similarly, ISO NE requires that each market participant annually submit a certificate that attests that the participant has procedures to effectively communicate with ISO NE and that it has trained personnel related to its participation in the relevant markets. See id. at 35. 172 See E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices ERCOT asserts that it is in the process of developing new eligibility requirements through its stakeholder process, that, as proposed, would require relevant market participants to (i) satisfy minimum capitalization requirements or post additional security, (ii) have appropriate expertise in the market, (iii) maintain a risk management framework appropriate to the ERCOT markets in which it transacts, (iv) have appropriate operational capability to respond to ERCOT direction, and (v) have the market participant’s officer certify, on an annual basis, that the participant eligibility requirements are met.180 It appears from the foregoing that Petitioners’ arrangements with respect to participant eligibility requirements are (or will be) congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle C in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 4. DCO Core Principle D: Risk Management DCO Core Principle D requires each DCO to demonstrate the ability to manage the risks associated with discharging the responsibilities of a DCO through the use of appropriate tools and procedures.181 As amended by the Dodd-Frank Act, Core Principle D also requires a DCO to: (1) Measure and monitor its credit exposures to each clearing member daily; (2) through margin requirements and other risk control mechanisms, limit its exposure to potential losses from a clearing member default; (3) require sufficient margin from its clearing members to cover potential exposures in normal market conditions; and (4) use riskbased models and parameters in setting margin requirements that are reviewed on a regular basis.182 a. Risk Management Framework Each Petitioner represents that it has established policies and procedures designed to minimize risk.183 As part of the tools and procedures that RTOs and ISOs use to manage the risks associated with their activities, FERC regulation 35.47(b) mandates that RTOs and ISOs have billing periods and settlement periods of no more than seven days.184 As discussed above, FERC found a shorter cycle necessary to promote market liquidity and a necessary change ‘‘to reduce default risk, the costs of which would be socialized across market participants and, in certain events, of market disruptions that could undermine overall market function.’’ 185 Recognizing the correlation between a reduction in the ‘‘settlement cycle’’ and a reduction in costs attributed to a default, FERC stated that shorter cycles reduce the amount of unpaid debt left outstanding, which, in turn, reduces ‘‘the size of any default and therefore reduces the likelihood of the default leading to a disruption in the market such as cascading defaults and dramatically reduced market liquidity.’’ 186 Most of the Petitioners represent that they have, or expect to have, final tariffs in place that limit billing periods and settlement periods to no more than seven days.187 In addition, an ISO’s or RTO’s participation standards can include the supervision of a market participant’s risk management program.188 As discussed in section V.C., FERC Order 741 states that an ISO or RTO could include periodic verification of market participant’s capability to engage in risk management or hedging or to out-source that capability ‘‘to make sure each market participant has adequate risk management capabilities and adequate capital to engage in trading with minimal risk, and related costs, to the market as a whole.’’ 189 Each Petitioner regulated by FERC represents that it either has a verification program in place or has submitted necessary Tariffs for approval to establish a verification program.190 ERCOT also has proposed participant eligibility requirements that would subject participants’ risk management framework to verification by ERCOT, unless that framework has been deemed sufficient for transacting in another U.S. RTO or ISO market in accordance with a FERC-approved tariff or in accordance with the Federal Reserve Bank Holding Company Supervision Manual. The proposed requirements currently are under review 184 18 CFR 35.47(b). Original Order 741 at 65946. 185 FERC srobinson on DSK4SPTVN1PROD with NOTICES2 186 Id. 180 See Petition Attachments at 27. See also FERC Order 741 Implementation Chart filed by petitioners as a supplement to the Petition (herein after, ‘‘FERC Order 741 Implementation Chart’’), available at http://www.cftc.gov/stellent/groups/public/ @requestsandactions/documents/ifdocs/isorto4cappfercchart.pdf. 181 7 U.S.C. 7a–1(c)(2)(D). 182 7 U.S.C. 7a–1(c)(2)(D). 183 See Petition Attachments at 56–92. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 187 See FERC Order 741 Implementation Chart. As stated above, ERCOT is not required, by law, to comply with Order 741. Nonetheless, Petitioners represent that ERCOT will shorten its payment and settlement cycle to no more than 15 days. See infra nn. 212–213 and accompanying text. 188 See n. 126 and accompanying text. 189 See FERC Original Order 741 at 65946. 190 See FERC Order 741 Implementation Chart at 11–12. PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 52151 in the ERCOT stakeholder process.191 On the basis of the representations contained in the Petition, it appears that these policies and procedures, are (or will be, assuming they are implemented) congruent with, and will sufficiently accomplish, the regulatory objectives of DCO Core Principle D. The Commission seeks comment with respect to this conclusion. b. Measurement and Monitoring of Credit Exposure Petitioners represent that their risk management procedures measure, monitor, and mitigate their credit exposure to market participants.192 In addition, most Petitioners state that they calculate credit exposure daily.193 It appears that, for the most part, given the unique characteristics of the wholesale electric markets, and particularly those of the FTR and equivalent markets, the practices specified in the Petition appear congruent with, and to accomplish sufficiently, DCO Core Principle D’s objective that a DCO measure its credit exposure to each of its clearing members. The Commission seeks comment with respect to this preliminary conclusion, including comment on whether any different or additional practices should be implemented as a condition of issuance of the Proposed Exemption. c. Unsecured Credit Petitioners represent that a market participant is required to obtain unsecured credit lines from an RTO or ISO (limited as discussed below) and/or post financial security that is sufficient to meet the participant’s estimated aggregate liability 194 or financial obligations.195 FERC regulation 35.47(a) 191 Id. 192 See Petition Attachments at 56–92. id. Petitioners further represent that the value of exposure to FTRs is determined by the price of physical electricity during the days and hours for which the FTR is effective. See id. In addition, petitioners represent that CAISO- updates credit exposures for CRR’s that are expected to generate a charge to the CRR holder on at least a monthly basis. See id. at 59–60. But see id. at 84– 85 (representing that PJM calculates credit exposure for FTRs on a monthly basis because daily measurement and intraday monitoring of credit exposure is not practical for FTRs due to the low liquidity and other unique attributes of the FTR markets). 194 A participant’s estimated credit exposure to an RTO or ISO is called such participant’s estimated aggregate liability or ‘‘EAL.’’ The EAL calculation is based on a number of variables, which vary among Petitioners. See id. at 56–92. 195 The Commission notes that NYISO establishes separate credit requirements for each of its product and service categories and requires each Market Participant to maintain financial security (e.g., cash, letter of credit, or surety bond) that is sufficient at 193 See E:\FR\FM\28AUN2.SGM Continued 28AUN2 52152 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 requires RTOs and ISOs to have tariff provisions that ‘‘[l]imit the amount of unsecured credit extended by [an RTO or ISO] to no more than $50 million for each market participant.’’ As mentioned above,196 in capping the use of unsecured credit at $50 million, FERC stated its belief that RTOs and ISOs ‘‘could withstand a default of this magnitude by a single market participant,’’ therein limiting an RTO’s or ISO’s exposure to potential losses from defaults by its market participants. Petitioners represent that they have tariff provisions that comply with FERC regulation 35.47(a).197 Moreover, FERC regulation 35.47(c) prohibits the use of unsecured credit in the FTR markets and equivalent markets because, according to FERC, risks arising out of the FTR markets are ‘‘difficult to quantify,’’ and eliminating the use of unsecured credit in these markets avoids the unforeseen and substantial costs for an RTO or ISO in the event of a default. Petitioners state that they have in place or have proposed tariff revisions to comply with FERC regulation 35.47(c).198 Since FERC regulations 35.47(a) and 35.47(c) appear to manage risk and limit an RTO’s or ISO’s exposure to potential losses from a market participant, these requirements would appear to be congruent with, and, assuming Petitioners’ proposed tariff revisions are implemented, to accomplish sufficiently, the regulatory objectives of Core Principle D in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. d. Limiting Exposure to Potential Losses Through Use of Risk Control Mechanisms and Grace Period To Cure Each Petitioner represents that it requires a market participant to post additional financial security (collateral) whenever the participant’s estimated aggregate liability or credit exposure equals or exceeds that participant’s unsecured credit and posted financial security.199 Moreover, FERC regulation 35.47(e) limits the time period by which a market participant must cure a collateral call to no more than two days. In Original Order 741, FERC stated that a two day time period for curing collateral calls balances the need for granting market participants sufficient all times to meet each separate credit requirement. See id. at 84. 196 See supra at n. 115. 197 See FERC Order 741 Implementation Chart at 2–3. 198 See id. at 4–5. 199 See Petition Attachments at 56–92. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 time to make funding arrangements for collateral calls with the need to minimize uncertainty as to a participant’s ability to participate in the market as well as the risk and costs of a default by a participant. By requiring each RTO and ISO to include this two day cure period in its tariff provisions, FERC regulation 35.47(e) appears to both promote the active management of risks associated with the discharge of an RTO’s or ISO’s responsibilities, while at the same time limiting the potential losses from defaults by market participants. Petitioners represent that each of them has implemented this requirement.200 In the event that a market participant fails to post additional financial security in response to a request from an RTO or ISO, or fails to do so within the requisite two day period, Petitioners represent that they have a wide array of remedies available, including bringing an enforcement action and assessing a variety of sanctions against the market participant.201 On the basis of these representations, it appears that the requirements to post additional financial security and cure collateral calls in no more than two days help Petitioners manage risk and limit their exposure against potential losses from a market participant. These requirements appear to be congruent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle D in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. e. Calls for Additional Collateral due to a Material Adverse Change FERC regulation 35.47(g) requires ISOs and RTOs to specify in their tariffs the conditions under which they will request additional collateral due to a material adverse change. However, as stated by FERC, this list of conditions is not meant to be exhaustive, and ISOs and RTOs are permitted to use ‘‘their discretion to request additional collateral in response to unusual or unforeseen circumstances.’’ 202 Petitioners represent that they have tariffs that comply with these requirements.203 Since Petitioners do not appear to be limited in their ability to call for additional collateral in unusual or unforeseen circumstances, FERC regulation 35.47(g) appears to 200 See FERC Order 741 Implementation Chart at 7. 201 See, e.g., Petition Attachments at 56–57, 69– 70, 76–77. 202 FERC Original Order 741 at 65957. 203 See FERC Order 741 Implementation Chart. PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 support some of DCO Core Principle D’s objectives, namely that a DCO have appropriate tools and procedures to manage the risks associated with discharging its responsibilities, and that a DCO limit its exposure to potential losses from defaults by clearing members. FERC has noted that information regarding when an ISO or RTO will request additional collateral due to a material adverse change may help to ‘‘avoid any confusion, particularly during times of market duress, as to when such a clause may be invoked,’’ 204 while at the same time preventing a market participant from ‘‘exploit[ing] ambiguity as to when a market administrator may invoke a ‘material adverse change.’’’ 205 As such, this policy appears to help avoid potentially harmful delays or disruptions that could subject the RTOs and ISOs to unnecessary damage, and thus is congruent with, and to accomplish sufficiently, the regulatory objectives of Core Principle D in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. f. Margin Requirement and Use of RiskBased Models and Parameters in Setting Margin As discussed previously, Petitioners represent that each Petitioner requires that market participants maintain unsecured credit and/or post financial security (collectively, ‘‘margin’’) that is sufficient to meet their estimated aggregate liability or financial obligations at all times,206 although estimated aggregate liability calculations appear to vary among Petitioners and among products within a particular Petitioner’s markets.207 As represented by Petitioners, these practices seem to be congruent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle D in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks 204 FERC Original Order 741 at 65958. at 65958. 206 See Petition Attachments at 56–92. 207 For example, one Petitioner states that its margin requirements are calculated using historical data and estimates of potential future exposure for the purposes of minimizing default exposure, but notes that the mechanics of the potential future exposure estimates ‘‘vary depending on the market.’’ See id. at 77. It maintains customized approaches to margining particular market activity, including separate and distinct margining models for the FTR Market and the Forward Capacity Market (both the buy side and the sell side). Id. at 77–78 Similarly, another Petitioner states that its credit requirements are derived from historical data from the past three years for FTRs, but from the past one year for other transactions. Id. at 91–92. 205 Id. E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 comment with respect to this preliminary conclusion. g. Ability To Offset Market Obligations FERC regulation 35.47(d) requires RTOs and ISOs to either (1) establish a single counterparty to all market participant transactions, (2) require each market participant to grant a security interest in the receivables of its transactions to the relevant RTO or ISO, or (3) provide another method of supporting netting that provides a similar level of protection to the market that is approved by FERC. Otherwise, RTOs and ISOs are prohibited from netting market participants’ transactions and required to establish credit based on market participants’ gross obligations. FERC regulation 35.47(d), which attempts to ensure that, in the event of a bankruptcy, ISOs and RTOs are not prohibited from offsetting accounts receivable against accounts payable, is congruent with the regulatory objectives of Core Principle D. In effect, this requirement appears to attempt to clarify an ISO’s or RTO’s legal status to take title to transactions in an effort to establish mutuality in the transactions as legal support for set-off in bankruptcy.208 This clarification, in turn, would seem to limit an RTO’s or ISO’s exposure to potential losses from defaults by market participants. Petitioners have represented that they either are, or plan on becoming, central counterparties.209 Though there appears to be strong support for the proposition that the central counterparty structure 210 would give rise to enforceable rights of setoff of the central counterparty, the Commission believes it would be in the public interest to have further clarity regarding whether a Petitioner’s chosen approach to comply with FERC regulation 35.47(d) grants sufficient certainty regarding the ability to enforce setoff rights. As such, the Commission proposes that, as a prerequisite to the granting of the 4(c)(6) request, each Petitioner must submit a well-reasoned legal memorandum from, or a legal opinion of, outside counsel that, in the Commission’s sole discretion, provides the Commission with adequate assurance that the approach selected by the Petitioner will in fact provide the Petitioner with setoff rights in a bankruptcy proceeding. Subject to this condition, compliance with FERC regulation 35.47(d) appears 208 See supra n. 122. 209 See FERC Order 741 Implementation Chart at 5–6. 210 A central counterparty is, within a particular market, the buyer to every seller and the seller to every buyer. See Principles for Financial Market Infrastructures ¶ 1.13 (CPSS–IOSCO 2012). VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 to be congruent with, and to accomplish sufficiently, Core Principle D’s regulatory objectives in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. The Commission also seeks comment with respect to the proposed prerequisite of assurance that the Petitioners can in fact exercise setoff rights in the event of the bankruptcy of a participant. 5. DCO Core Principle E: Settlement Procedures Among the requirements set forth by Core Principle E are the requirements that a DCO (a) have the ability to complete settlements on a timely basis under varying circumstances, and (b) maintain an adequate record of the flow of funds associated with each transaction that the DCO clears.211 Petitioners represent that they have policies and procedures that contain detailed procedures regarding data and record-keeping, and that, with the exception of ERCOT, they have, or will soon have, billing periods and settlement periods of no more than seven days each (for a total of 14 days).212 ERCOT is in the process of implementing changes by which the weighted average billing and settlement cycle will be less than 15 days.213 While this approach does not meet the standards applicable to registered DCOs,214 it appears to be congruent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle E in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment on this preliminary conclusion. 6. DCO Core Principle F: Treatment of Funds Core Principle F requires a DCO to have standards and procedures designed to protect and ensure the safety of member and participant funds, to hold such funds in a manner that would minimize the risk of loss or delay in access by the DCO to the funds, and to invest such funds in instruments with minimal credit, market, and liquidity risks.215 Petitioners represent that they have tariff provisions and related governing 211 7 U.S.C. 7a–1(d)(92)(i)–(ii). Petition Attachments at 94–103. 213 Under these arrangements, the time between Operating Day and payment will be 13 days or less for all transactions in the Day-Ahead Market, and will be 15 days or less for 90% of transactions in the Real Time Market. See id. at 96. 214 See 17 CFR 39.14(b) (requiring daily settlements). 215 7 U.S.C. 7a–1(c)(2)(F). 212 See PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 52153 documents that accomplish the regulatory goals of DCO Core Principle F.216 For example, CAISO represents that its tariffs require it to maintain specified types of separate accounts for funds it receives or holds, including segregated and aggregated market clearing accounts.217 Similarly, MISO represents that its tariffs require MISO to hold all monies deposited by its participants (whom MISO refers to as ‘‘Tariff Customers’’) as financial assurance in a separate, interest-bearing money market account with onehundred percent of the interest earned accruing to the benefit of the Tariff Customer.218 The other Petitioners represent that they have appropriate investment policies or practices, such as segregation requirements and/or limitations on investment options.219 As represented by Petitioners, these practices appear congruent with, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle F in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 7. DCO Core Principle G: Default Rules and Procedures Core Principle G requires a DCO to have rules and procedures designed to allow for the efficient, fair, and safe management of events when members or participants become insolvent or otherwise default on their obligations to the DCO.220 Core Principle G also requires a DCO to clearly state its default procedures, make publicly available its default rules, and ensure that it may take timely action to contain losses and liquidity pressures and to continue meeting each of its obligations.221 a. General Default Procedures Each Petitioner represents that it has procedures in its tariffs or other governing documents that address events surrounding the insolvency or default of a market participant.222 For example, Petitioners represent that such documents identify events of default (e.g. failure to make payments when due, failure to support an estimated liability with adequate security, events of insolvency, and failure to perform other obligations under the tariff), describe the cure period associated with 216 See Petition Attachments at 105–110. id. at 105. 218 See id. at 108. 219 See id. at 105–110. 220 7 U.S.C. 7a–1(c)(2)(G)(i). 221 7 U.S.C. 7a–1(c)(2)(G)(ii). 222 See generally Petition Attachments at 112– 126. 217 See E:\FR\FM\28AUN2.SGM 28AUN2 52154 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 an event of default, and describe the actions to be taken in the event of default and/or detail each Petitioners’ remedies—which may include, among other things, termination of services and/or agreements, initiation of debt collection procedures and levying financial penalties.223 As detailed above, in the event that the remedies outlined in each Petitioner’s governing documents are insufficient to timely cure a default, Petitioners have the right to socialize losses from the default among other market participants by, for example, ‘‘short-paying’’ such other participants.224 b. Setoff Generally speaking, it is a wellestablished tenet of clearing that a DCO acts as the buyer to every seller and as the seller to every buyer, thereby substituting the DCO’s credit for bilateral counter-party risk. As such, when a DCO is involved, there is little question as to the identity of a counterparty to a given transaction. However, because ISOs and RTOs can act as agents for their participants, there could be ambiguity as to the identity of a counterparty to a given transaction. As a result, in the event of a bankruptcy of a market participant and in the event of a lack of the mutuality of obligation required by the Bankruptcy Code,225 an ISO or RTO may be liable to pay a bankrupt market participant for transactions in which that participant is owed funds, without the ability to offset amounts owed by that participant with respect to other transactions. Stated differently, although the defaulting market participant may owe money to the ISO or RTO, if the ISO or RTO also owes money to such participant, the ISO or RTO may be required to pay the defaulting participant the full amount owed without being able to offset the amounts owed by that participant to the ISO or RTO, which latter amounts may be relegated to claims in the bankruptcy proceedings. As more fully described in section V.D.4.g., the requirement that Petitioners provide memoranda or opinions of counsel as discussed therein is intended to address this issue. The foregoing arrangements appear congruent to, and to accomplish sufficiently, the regulatory objectives of DCO Core Principle G in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 8. Core Principle H: Rule Enforcement Core Principle H requires a DCO to (1) maintain adequate arrangements and resources for the effective monitoring and enforcement of compliance with its rules and for resolution of disputes, (2) have the authority and ability to discipline, limit, suspend, or terminate a clearing member’s activities for violations of those rules, and (3) report to the Commission regarding rule enforcement activities and sanctions imposed against members and participants.226 Each Petitioner represents that it maintains tariffs or procedures or is subject to a regulatory framework that accomplishes the regulatory goals of DCO Core Principle H. Petitioners have, e.g., the power to take a range of actions against participants that fail to pay, pay late, or fail to post financial security. 227 Based on Petitioners’ representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle H in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 9. DCO Core Principle I: System Safeguards Core Principle I requires a DCO to demonstrate that: (1) It has established and will maintain a program of oversight and risk analysis to ensure that its automated systems function properly and have adequate capacity and security, and (2) it has established and will maintain emergency procedures and a plan for disaster recovery and will periodically test backup facilities to ensure daily processing, clearing and settlement of transactions.228 Core Principle I also requires that a DCO establish and maintain emergency procedures, backup facilities, and a plan for disaster recovery that allows for the timely recovery and resumption of the DCO’s operations and the fulfillment of each of its obligations and responsibilities.229 Petitioners represent that they have policies and procedures that accomplish the regulatory goals of DCO Core Principle I,230 albeit in a manner that is somewhat different than the way in which a DCO complies with DCO Core Principle I. This is because Petitioners 226 7 U.S.C. 7a–1(c)(2)(H). generally, Petition Attachments at 128– 227 See 150. 223 Id. 228 7 224 See supra at n. 149 and accompanying text. See also, e.g., Petition at 71. 225 See 11 U.S.C. 553. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 U.S.C. 7a–1(c)(2)(I)(i)–(ii). U.S.C. 7a–1(c)(2)(I)(iii). 230 See generally Petition Attachments at 152– 158. 229 7 PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 are also responsible for managing power reliably and, thus, require additional operational safeguards to specifically address that function. For example, NYISO is subject to reliability rules established by the New York State Reliability Council, Northeast Power Coordinating Council, and the North American Electric Reliability Corporation.231 In order to comply with these rules, NYISO has procedures in place to address emergency situations and maintains an alternate control center and back-up computer systems and data centers at a separate location.232 NYISO also performs internal and external audits to ensure its internal controls, procedures, and business processes comply with accepted standards.233 The other Petitioners represent that they have similar procedures and practices such as, computer back-up systems, operate multiple control and data centers, dedicate resources to internal audit and security teams, and maintain disaster recovery plans designed to address operational, physical, and cyber security events.234 Based on Petitioners’ representations, it appears that these system safeguard practices are congruent with, and accomplish sufficiently, the regulatory objectives of DCO Core Principle I in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 10. DCO Core Principle J: Reporting Core Principle J requires a DCO to provide to the Commission all information that the Commission determines to be necessary to conduct oversight of the DCO.235 With the exception of ERCOT, Petitioners represent that, pursuant to their Tariffs and other FERC orders, FERC has access to the information that it would need to oversee the Petitioners.236 With respect to ERCOT, ERCOT represents that the PURA and PUCT Substantive Rules require it to provide information to the PUCT on request.237 ERCOT also represents that its Bylaws require ERCOT corporate members to provide information to ERCOT.238 In addition, according to ERCOT, the ERCOT Protocols require ERCOT to manage 231 See id. at 157. id. 233 See id. 234 See id. at 152, 156, 158. 235 7 U.S.C. 7a–1(c)(2)(J). 236 See generally Petition Attachments at 160– 166. 237 See id. at 161–162. PURA 39.151(d), P.U.C. SUBST. R. 25.362(e)(1)(B) and 25.503(f)(8). 238 See Petition Attachments at 161–162. 232 See E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 confidential information, but enable ERCOT to release confidential information to government officials if required by law, regulation or order.239 As noted above, the Commission is proposing to condition this exemptive order on the completion of an appropriate information sharing agreement between the Commission and PUCT. Based on the foregoing, including Petitioners’ representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle J in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 11. Core Principle K: Recordkeeping Core Principle K requires a DCO to maintain records of all activities related to its business as a DCO in a form and manner acceptable to the Commission for a period of not less than five years.240 Petitioners represent that their practices satisfy the regulatory goals of DCO Core Principle K because they have adequate recordkeeping requirements or systems.241 In addition, Petitioners represent that FERC has comprehensive recordkeeping regulations that cover, among other things, protection and storage of records, record storage media, destruction of records, and premature destruction or loss of records.242 The record retention requirements for accounting records are, in the main, at or in excess of five years.243 In addition, ERCOT, which is not subject to FERC jurisdiction, represents that it has also adopted specific books and records requirements that accomplish the regulatory goals of DCO Core Principle K. Specifically, ERCOT represents that it has specific record retention rules established in the EROCT Protocols and is required to retain market accounting information for a period of seven years.244 Based on these regulations and Petitioners’ representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle K in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 239 See id. U.S.C. 7a–1(c)(2)(K). 241 See generally Petition Attachments at 168– 173. 242 See 18 CFR 125.2–.3. 243 See 18 CFR 125.3 at (6)–(9). 244 See Petition Attachments at 169. 12. DCO Core Principle L: Public Information Core Principle L requires a DCO to make information concerning the rules and operating procedures governing its clearing and settlement systems (including default procedures) available to market participants.245 Core Principle L also requires a DCO to provide market participants with sufficient information to enable them to identify and evaluate accurately the risks and costs associated with using the DCO’s services, and to disclose publicly and to the Commission information concerning: (1) The terms and conditions of each contract, agreement, and transaction cleared and settled by the DCO; (2) the fees that the DCO charges its members and participants; (3) the DCO’s marginsetting methodology, and the size and composition of its financial resources package; (4) daily settlement prices, volume, and open interest for each contract the DCO settles or clears; and (5) any other matter relevant to participation in the DCO’s settlement and clearing activities.246 Each Petitioner represents that it makes its tariff or related governing documents publicly available on its Web site, which, in turn, allows market participants (and the public) to access its rules and procedures regarding, among other things, participant and product eligibility requirements, risk management methodologies, settlement procedures, and other information that may impact prices, such as transmission system models, reserved transmission capacity, and similar information.247 Based on Petitioners’ representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle L in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 13. DCO Core Principle M: Information Sharing Core Principle M requires a DCO to enter into and abide by the terms of all appropriate and applicable domestic and international information-sharing agreements, and use relevant information obtained from the agreements in carrying out the DCO’s risk management program.248 Petitioners represent that they have policies and procedures that allow them 240 7 VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 245 7 U.S.C. 7a–1(c)(2)(L)(i)–(ii). U.S.C. 7a–1(c)(2)(L)(iii). 247 See generally Petition Attachments at 175– 182. 248 7 U.S.C. 7a–1(c)(2)(M). 246 7 PO 00000 Frm 00019 Fmt 4701 Sfmt 4703 52155 to share information with and receive information from other entities as necessary to carry out their risk management functions.249 For example, ISO NE represents that its Information Policy sets out rules for sharing information with participants, FERC, and other Petitioners.250 Similarly, the NYISO represents that its tariff provides for information sharing with other ISOs and RTOs.251 ERCOT represents that it is likewise subject to a comprehensive set of rules under the PURA, PUCT Rules, and the ERCOT Protocols that address information exchange obligations between ERCOT, the ERCOT Independent Market Monitor, ERCOT market participants, and the PUCT.252 MISO, PJM, and CAISO all claim to have similar information sharing policies and procedures—although, the entities with which each ISO/RTO shares information do vary.253 Based on the foregoing and Petitioners’ representations, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle M in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 14. DCO Core Principle N: Antitrust Core Principle N requires a DCO to avoid, unless necessary or appropriate to achieve the purposes of the CEA, adopting any rule or taking any action that results in any unreasonable restraint of trade, or imposing any material anticompetitive burden.254 As discussed above, the formation of the Petitioners (except for ERCOT) was encouraged by FERC (pursuant to FERC Order Nos. 888 and 2000) in order to foster greater competition in the power generation sectors by allowing open access to transmission lines.255 In 249 See generally Petition Attachments at 184– 190. 250 See id. at 186. id. at 188–189. 252 See id. at 185. 253 See id. at 184, 187, 190. 254 7 U.S.C. 7a–1(c)(2)(N). 255 See FERC Order No. 888; FERC Order No. 2000. Moreover, Petitioners represent that their rules are typically subject to advance review by stakeholders and must be approved by FERC (except for ERCOT whose rules are approved by PUCT). These rules are, in turn, subject to review by the MMU, who attempt to detect, among other things, detect market power abuses. See generally Petition Attachments at 192–198. With respect to ERCOT, TAC 25.361(i) expressly states that ‘‘The existence of ERCOT is not intended to affect the application of any state or federal anti-trust laws.’’ In addition, ERCOT represents that it conducts antitrust training for its employees annually, holds open meetings to promote the transparent development of market rules, established a 251 See E:\FR\FM\28AUN2.SGM Continued 28AUN2 52156 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices addition, Petitioners represent that they are subject to continued oversight by FERC, PUCT or their market monitors, as appropriate, which oversight could detect activities such as undue concentrations or market power, discriminatory treatment of market participants or other anticompetitive behavior.256 Based on Petitioners’ representations, it appears that Petitioners’ existence and practices are congruent with, and sufficiently accomplish, the regulatory objectives of Core Principle N. The Commission seeks comment with respect to this preliminary conclusion. 15. DCO Core Principle O: Governance and Fitness Standards srobinson on DSK4SPTVN1PROD with NOTICES2 Core Principle O requires a DCO to establish governance arrangements that are transparent to fulfill public interest requirements and to permit the consideration of the views of owners and participants.257 A DCO must also establish and enforce appropriate fitness standards for directors, members of any disciplinary committee, members of the DCO, any other individual or entity with direct access to the settlement or clearing activities of the DCO, and any party affiliated with any of the foregoing individuals or entities.258 Petitioners represent that their tariffs, organizational documents, and applicable state law set forth specific governance standards that are consistent with the regulatory goals which address, for example, director independence and fitness requirements.259 In addition, Petitioners assert that FERC Order Nos. 888 and 2000 set out certain minimum governance structures for ISOs and RTOs. Petitioners state that Order No. 888 requires the following: an ISO’s governance should be structured in a fair and non-discriminatory manner; an ISO and its employees should have no financial interest in the economic performance of any power market participant; and an ISO should adopt and enforce strict conflict of interest standards.260 Petitioners assert that Order No. 2000 likewise identified minimum characteristics that RTOs must exhibit, including, independence Corporate Standard to addresses antitrust issues, and that ‘‘PURA, PUCT Substantive Rules and ERCOT Protocols also require that ERCOT allow access to the transmission system for all buyers and sellers of electricity on a nondiscriminatory basis, which facilitates actions consistent with the antitrust considerations of [DCO Core Principle N].’’ See Petition Attachments at 193–194. 256 See Petition Attachments at 192–198. 257 7 U.S.C. 7a–1(c)(2)(O)(i). 258 7 U.S.C. 7a–1(c)(2)(O)(ii). 259 See Petition Attachments at 200–208. 260 See id. at 200 (citing to FERC Order No. 888). VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 from all market participants.261 Similarly, Petitioners represent that PURA mandates ERCOT to include unaffiliated directors and market segment representation in its governance structure.262 Based on Petitioners’ representations, it appears that Petitioner’s governance structures are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle O in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 16. DCO Core Principle P: Conflicts of Interest Pursuant to DCO Core Principle P, each DCO must establish and enforce rules to minimize conflicts of interest in the decision-making process of the DCO.263 In addition, each DCO must establish a process for resolving conflicts of interest.264 Each Petitioner represents that it has established a conflict of interest policy in a Code of Conduct or other corporate document that requires board members and employees to, among other things, avoid activities that are contrary to the interests of the Petitioner.265 In addition, CAISO represents that Order No. 888 requires ISOs to implement strict conflict of interest policies.266 Similarly, ERCOT asserts that the PUCT Substantive Rules require it to adopt policies to mitigate conflicts of interest.267 Based upon Petitioners’ representations, it appears that the conflict of interest policies Petitioners have adopted and that the requirements Petitioners are subject to are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle P in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 17. DCO Core Principle Q: Composition of Governing Boards DCO Core Principle Q provides that each DCO shall ensure that the composition of the governing board or committee of the derivatives clearing organization includes market participants.268 261 See Petition Attachments at 208 (citing to FERC Order No. 2000). 262 See id. at 202. 263 7 U.S.C. 7a–1(c)(2)(P)(i). 264 7 U.S.C. 7a–1(c)(2)(P)(ii). 265 See Petition Attachments at 210–216. 266 See id. at 210. 267 See id. at 211. 268 7 U.S.C. 7a–1(c)(2)(O). PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 ERCOT represents that its governing board includes representatives from the market,269 CAISO, on the other hand, asserts that its board composition is mandated by California statute, wherein members are appointed by the Governor of California and confirmed by the California senate.270 ISO NE and MISO assert that they have active market participants who are involved in the nomination and selection of Board members, while NYISO asserts that its market participants provide input and feedback through market participant committees, and other subcommittees and working groups, and PJM has a Members Committee that elects the members of the PJM Board.271 FERC regulations require that an RTO ‘‘must have a decision making process that is independent of control by any market participant or class of participants.’’ 272 However, FERC also requires that each ISO and RTO ‘‘adopt business practices and procedures that achieve Commission-approved independent system operator and regional transmission organization board of directors’ responsiveness to customers and other stakeholders and satisfy [specified] criteria.’’ 273 Based on Petitioner’s representations, and the regulations and supervision of FERC, it appears that these practices are congruent with, and sufficiently accomplish, the regulatory objectives of DCO Core Principle Q in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 18. DCO Core Principle R: Legal Risk Core Principle R requires a DCO to have a well-founded, transparent, and enforceable legal framework for each aspect of its activities.274 Petitioners assert that they operate under a transparent and comprehensive legal framework that is grounded in the Federal Power Act or the Texas Public Utility Regulatory Act, as applicable, and administered by FERC or the PUCT, as applicable.275 Indeed, Petitioners assert that they are subject to FERC or PUCT orders rules and regulations and that each Petitioner operates pursuant to a tariff that has been reviewed and approved by FERC or the PUCT, as applicable.276 Moreover, with respect to 269 See Petition Attachments at 219. id. at 218. 271 See id. at 221–223. 272 See 18 CFR 35.34(j)(1)(ii). 273 See 18 CFR 35.28(g)(6). 274 7 U.S.C. 7a–1(c)(2)(R). 275 See generally Petition Attachments at 225– 235. 276 See id. 270 See E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices an area of particular concern (eligibility for setoff in bankruptcy), the CFTC is requiring independent confirmation.277 Based on Petitioners’ representations, it appears that this framework is congruent with, and sufficiently accomplishes, the regulatory objectives of Core Principle R in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. E. SEF Core Principles 1. SEF Core Principle 1: Compliance With Core Principles SEF Core Principle 1 requires a SEF to comply with the Core Principles described in part 37 of the Commission’s Regulations.278 As demonstrated by the following analysis, the Commission has made a preliminary determination that in the context of the Petitioners’ activities with respect to the Transactions within the scope of this Proposed Exemption, Petitioners’ practices appear congruent with, and to accomplish sufficiently, the regulatory objectives of each SEF core principle. The Commission requests comment with respect to this preliminary determination. 2. SEF Core Principle 2: Compliance With Rules SEF Core Principle 2 requires a SEF to establish and enforce compliance with any rule of the SEF.279 A SEF is also required to (1) establish and enforce rules with respect to trading, trade processing, and participation that will deter market abuses and (2) have the capacity to detect, investigate and enforce those rules, including a means to (i) provide market participants with impartial access to the market, and (ii) capture information that may be used in establishing whether rule violations have occurred.280 Petitioners represent that they have transparent rules for their market, including rules that govern market abuses and compliance enforcement.281 For instance, the independent market monitor established by statute for the ERCOT region oversees market behavior and reports any market compliance 277 See the discussion in section V.D.4.g. U.S.C. 7b–3(f)(1) 279 7 U.S.C. 7b–3(f)(2). 280 SEF Core Principle 2 also requires a SEF to establish rules governing the operation of the facility, including trading procedures, and provide rules that, when a swap is subject to the mandatory clearing requirement, hold swap dealers and major swap participants responsible for compliance with the mandatory trading requirement under section 2(h)(8) of the Act. 281 Petition Attachments at 238–245. srobinson on DSK4SPTVN1PROD with NOTICES2 278 7 VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 issues to the state regulator.282 If a market participant violates ERCOT rules, depending on the nature of the offense, ERCOT and/or the state regulator may take appropriate action against the party, including, but not limited to, terminating, expelling, suspending, or sanctioning a member.283 The other Petitioners also represent that they have enforcement mechanisms that allow the Petitioners to, among other things, monitor their markets, investigate suspected tariff violations, take action against violators (including assessing fines or suspending or terminating a market participant’s participation in market activities), and refer potential violations to FERC.284 Based on the foregoing, it appears that the Petitioners’ practices are consistent with, and sufficiently accomplish, the regulatory goals of SEF Core Principle 2 in the context of Petitioners’ activities with respect to the Transactions. The Commission requests comment with respect to this preliminary determination. 3. SEF Core Principle 3: Swaps Not Readily Susceptible to Manipulation SEF Core Principle 3 requires a SEF submitting a contract to the Commission for certification or approval to demonstrate that the swap is not readily susceptible to manipulation.285 a. Energy Transactions Petitioners define Energy Transactions to include both physicallydelivered as well as cash-settled contracts.286 For purposes of this Proposed Exemption, the Commission limits the analysis to Energy Transactions that are cash-settled. Petitioners have represented to the Commission that market participants use the cash-settled Energy Transactions to arbitrage between the Day-Ahead and Real-Time markets.287 The result is that prices between the Day-Ahead and RealTime markets converge and reduce the price volatility normally found in electricity markets.288 Indeed, the contracts were created with this very purpose in mind.289 The Commission understands that MMUs operated by each of the Petitioners have been organized in such 282 See id. at 130. See also id. at 239–240. id. at 129. See also id. at 239–240. 284 See id. at 128, 131–150. See also id. at 238, 241–245. 285 7 U.S.C. 7b–3(f)(3). 286 See Petition at 7. 287 See Petition Attachments at 252–253. 288 See id. at 142. See also id. at 253. 289 FERC Order on Compliance Filing to PJM, 139 FERC ¶ 61,057 issued April 19, 2012 in Docket No. ER09–1063–004. 283 See PO 00000 Frm 00021 Fmt 4701 Sfmt 4703 52157 a way that both the Real-Time and DayAhead markets are monitored to identify suspicious trading activity.290 In the event the MMUs identify suspicious trading activity, FERC, or PUCT in the case of ERCOT, is notified so that further investigation may be done. An example of such suspicious trading activity would involve a market participant engaging in Energy Transactions that repeatedly incur a loss.291 Repeated losses in Energy Transactions would indicate that a market participant is sustaining losses to improve another position. For example, in the event a market participant tried to manipulate the price of electricity in the Day-Ahead or RealTime markets to improve a different position, such as an FTR, they would have to submit bids that drove up the price of electricity for that specific node. In order to do this, however, the participant would have to submit a large dollar amount of offers at an inflated price. The Commission believes that this type of trading activity should be detectable by the MMUs. In addition to being difficult to effectuate simply because of the financial resources required, the Commission believes that any such activity should be apparent to not only MMUs using their ordinary oversight tools, but to market participants, who should have a selfinterest in reporting such activity to the MMUs. Notably, such manipulative schemes have been identified and prosecuted by FERC in the past.292 Petitioners represent that they have adequate staff and IT resources to conduct market surveillance.293 Each Petitioner follows a similar market design which allows for price discovery at thousands of nodes and paths in short time intervals (every five to fifteen minutes) in both the Real-Time and Day-Ahead markets.294 The MMUs look 290 See generally Petition Attachments at 124– 147. 291 See generally id. March 9, 2012 Constellation Energy and FERC’s Office of Enforcement entered into a Stipulation and Consent Agreement in which Constellation neither admitted nor denied wrongdoing. FERC initially alleged that Constellation manipulated the price of electricity using virtual and physically-settled transactions on the markets of ISO NE and NYISO to benefit nonISO swap positions. After receiving two anonymous hotline tips, FERC was alerted to potentially problematic trading after detecting successive losses by Constellation in their virtual and physical bids on the NYISO. Constellation agreed to pay a fine of $135,000,000 and disgorge $110,000,000 in unjust profits. See Order approving stipulation and agreement, Docket No. IN12–7–000, 138 FERC ¶ 61,168. 293 See Petition at 126–150. 294 See generally Petition Attachments at 247– 258. 292 On E:\FR\FM\28AUN2.SGM 28AUN2 52158 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices for manipulative behavior and market power, as well as market flaws (such as persistent non-convergence of DayAhead and Real-Time prices), which are fed back into a stakeholder process for changing the market structure and rules.295 Based on the Petitioners’ representations regarding the surveillance carried out by the MMUs for each Petitioner and the method by which the Day-Ahead and Real-Time auctions are conducted, it appears that Petitioners’ policies and procedures to mitigate the susceptibility of Energy Transactions to manipulation are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 3 in the context of Petitioners’ activities with respect to the Energy Transactions. The Commission seeks comment with respect to this preliminary conclusion. srobinson on DSK4SPTVN1PROD with NOTICES2 b. Financial Transmission Rights (‘‘FTRs’’) Based upon the Petitioners’ representations, the Commission understands FTRs to be cash-settled contracts that entitle the holder to a payment equal to the difference in the price of electricity between two specific nodes.296 The difference in price between the two nodes represents the settlement price. The price at each node is established through auctions conducted on the Day-Ahead market of each Petitioner.297 As discussed above, the Commission has made a preliminary determination that the Real-Time and Day-Ahead markets on Petitioners’ platforms appear to be consistent with SEF Core Principle 3. As previously discussed, both the Petitioners and their respective MMUs conduct market surveillance of both the Real-Time and Day-Ahead markets to identify manipulation of the price of electricity. In the event unusual trading activity is detected by the Petitioners’ MMUs, the MMUs will immediately contact FERC, or PUCT in the case of ERCOT, so that an investigation into the unusual activity may begin.298 Although the price of FTRs may be altered by the manipulation of the Real-Time or DayAhead markets, FERC requires that the Petitioners have systems to monitor for such activity. The Commission believes that the Petitioners’ policies and procedures should mitigate the susceptibility of FTRs to manipulation and that they are 295 See generally id. at 126–150. Petition at 6. 297 See, e.g., Petition Attachments at 252. 298 See generally Petition Attachments at 128– 150. 296 See VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 3 in the context of Petitioners’ activities with respect to FTRs. The Commission seeks comment with respect to this preliminary conclusion. In addition to the Petitioners’ policies and procedures for the detection of manipulative behavior in connection with FTRs, the Commission notes that since an FTR holder is entitled to a payment based on the price difference between two nodes, and not the physical delivery of electricity, it may be the case that FTRs are difficult to use to manipulate the price of electricity. For instance, the size of a participant’s FTR position should not affect the price of electricity established on the Petitioners’ Real-Time and Day-Ahead markets and holding an FTR does not provide a means to limit the deliverable supply of electricity. The Commission seeks comment on this evaluation and whether it should be considered in analyzing FTRs under SEF Core Principle 3. c. Capacity and Reserve Transactions Both Capacity and Reserve Transactions are entered into pursuant to auctions carried out by each of the Petitioners.299 However, unlike the auctions for the Real-Time and DayAhead markets, the auctions for capacity and reserve transactions simply allow each Petitioner to accept bids submitted by market participants that have the ability to inject electricity into the Petitioner’s electricity transmission system.300 The Commission notes that the Petitioners would apply the same oversight policies and procedures to Capacity and Reserve Transactions that they apply to Energy Transactions and FTRs. The Commission believes that these measures appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 3 in the context of Petitioners’ activities with respect to Capacity and Reserve Transactions. The Commission seeks comment with respect to this preliminary conclusion. The Commission also seeks comment on whether the auction procedures used in connection with Capacity and Reserve Transactions could reduce the likelihood for manipulation of such agreements due to the fact that the Petitioners themselves are the only possible counterparty during each auction. For example, when CAISO conducts an auction for Generation Capacity, it is the only party that would enter into the agreement with a CAISO market participant capable of providing the contracted for electricity. CAISO would then call upon the Capacity and Reserve Transaction counterparties to inject electricity into the system when the technical requirements of operating the transmission system deem injection necessary. Accordingly, Capacity and Reserve Transactions seem to be distinguishable from FTRs or Energy Transactions in that they are used exclusively for operational maintenance of the electric transmission system, and not as a means of reducing exposure to price volatility, arbitrage or price discovery. The Commission seeks comment on this analysis of Capacity and Reserve Transactions and whether it should be considered in the Commission’s review of these instruments under SEF Core Principle 3. 4. SEF Core Principle 4: Monitoring of Trading and Trade Processing SEF Core Principle 4 requires a SEF to establish and enforce rules or terms and conditions defining trading procedures to be used in entering and executing orders traded on or through the SEF and procedures for the processing of swaps on or through the SEF.301 SEFs are also required to establish a system to monitor trading in swaps to prevent manipulation, price distortion and disruptions of the delivery or cash settlement process through surveillance, compliance and disciplinary practices and procedures. The main goal of this Core Principle is to monitor trading activity to detect or deter market participants from manipulating the price or deliverable supply of a commodity. a. Energy Transactions Generally, the Petitioners have tariffs in place that list how Energy Transactions are to be entered into the trading platform.302 Using these procedures, MMUs are able to track the Energy Transactions submitted by market participants and identify trading activity that could be manipulative. As a result, Petitioners’ policies and procedures regarding monitoring of trading and trade processing appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 4 in the context of Petitioners’ activities with respect to Energy Transactions. The Commission 301 7 299 See Petition at 7–9. 300 See Petition at 7–9. PO 00000 Frm 00022 Fmt 4701 U.S.C. 7b–3(f)(4). generally Petition Attachments at 260– 302 See 269. Sfmt 4703 E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices c. Capacity and Reserve Transactions srobinson on DSK4SPTVN1PROD with NOTICES2 seeks comment with respect to this preliminary conclusion. b. FTRs The process by which the FTR allocation and auction takes place provides the Petitioners with a basic system that allows the Petitioners to determine which market participants hold FTRs. According to the Petitioners’ tariffs, LSEs applying for FTRs during the allocation phase must first establish that they are in fact exposed to load levels for the transmission lines on which they will transmit electricity.303 Once an LSE has demonstrated such exposure, they will be allowed to participate in the FTR allocation. The FTRs are allocated to each LSE in direct relation to the level of exposure to which the LSEs are subject.304 This process of determining congestion exposure and allocating FTRs in relation to that exposure ensures that Petitioners will have a record of the number of FTRs held by each member. During the auction and secondary market phases, the Petitioners also have systems in place to track which participants hold FTRs. During the auction phase, any credit-worthy member of the RTO or ISO may bid on FTRs. Since the auctions are conducted on the Petitioners’ platforms, they will have records of which market participants hold FTRs after the auctions. Once an auction is complete, credit-worthy members may then engage in bilateral transactions to trade FTRs. Again, Petitioners have implemented systems to track these bilateral transactions between FTR holders. Once a bilateral transaction is reported, the Petitioner then performs a credit check to ensure that the new owner of the FTR has the financial capability to assume the risk posed by ownership of the FTR.305 The Petitioners do not perform an analysis to determine whether a member is obtaining a large position in the secondary FTR market. The Petitioners only identify which members hold FTRs in the secondary market. Based on the foregoing representations, it appears that the Petitioners’ policies and procedures regarding the monitoring of trading and trade processing are consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 4 in the context of Petitioners’ activities with respect to FTRs. The Commission seeks comment with respect to this preliminary conclusion. As discussed above, the auction process used for Capacity and Reserve Transactions differs from the process used in the Real-Time and Day-Ahead markets. Furthermore, Capacity and Reserve Transactions are not used to limit exposure to price volatility, discover prices or engage in arbitrage. The transactions are predominantly bilateral agreements between each Petitioner and certain of that Petitioner’s market participants for the provision of electricity in order to meet the technical requirements necessary to operate the electric transmission system. The contracts are not readily susceptible to manipulation and there is no market trading that must be monitored to prevent manipulation or congestion of the physical delivery market. As a result, the Petitioners’ policies and procedures regarding the monitoring of trading and trade processing appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 4 in the context of Petitioners’ activities with respect to Capacity and Reserve Transactions. The Commission seeks comment with respect to this preliminary conclusion. 5. SEF Core Principle 5: Ability To Obtain Information SEF Core Principle 5 requires a SEF to establish and enforce rules that will allow it to obtain any necessary information to perform the functions described in section 733 of the DoddFrank Act, provide information to the Commission upon request, and have the capacity to carry-out such international information-sharing agreements as the Commission may require.306 As discussed above,307 each Petitioner represents that it has rules in place that require market participants to submit information to Petitioners upon request so that Petitioners may conduct investigations and provide or give access to such information to their market monitors and FERC or PUCT, as applicable.308 On the basis of these representations, it appears that Petitioners’ practices are consistent with, and sufficiently accomplish, the regulatory goals of SEF Core Principle 5. The Commission seeks comment with respect to this preliminary determination. 306 7 U.S.C. 7b–3(f)(5). generally the discussions in sections V.D.10. and V.D.13. supra. 308 See generally Petition Attachments at 271– 276. 307 See 303 See generally id. id. 305 See id. at 2–20. 304 See VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4703 52159 6. SEF Core Principle 6: Position Limits or Accountability SEF Core Principle 6 requires SEFs that are trading facilities, as that term is defined in CEA section 1a(51), to establish position limits or position accountability for speculators, as is necessary and appropriate, for each swap traded on the SEF in order to prevent or reduce the potential threat of market manipulation or congestion, especially during trading in the delivery month.309 While the markets administered by Petitioners are subject to MMUs (as discussed above in section IV.C.), Petitioners do not have position limits or position accountability thresholds for speculators in order to reduce the potential threat of market manipulation or congestion. The Commission specifically requests comment as to whether the lack of position limits or position accountability thresholds for speculators in Petitioners’ markets, given the nature of their markets and market participants, and the other regulatory protections applicable to these markets as described herein, would prevent the Commission from determining that the Proposed Exemption is consistent with the public interest and the purposes of the CEA. 7. SEF Core Principle 7: Financial Integrity of Transactions SEF Core Principle 7 requires a SEF to establish and enforce rules and procedures for ensuring the financial integrity of swaps entered on or through the facilities of the SEF, including the clearance and settlement of swaps pursuant to section 2(h)(1) of the CEA. a. Risk Management Requirements and Credit Policies Petitioners represent that they ensure the financial integrity of transactions that are entered on or through their markets through the risk management requirements and credit policies that apply to their market participants.310 In addition to minimum capitalization requirements, Petitioners represent that they all have in place, or are in the process of implementing, risk management policies and procedures and internal controls appropriate to their trading activities in the RTO and ISO markets in which they 309 Further Definition of ‘Swap Dealer,’ ‘SecurityBased Swap Dealer,’ ‘Major Swap Participant,’ ‘Major Security-Based Swap Participant’ and ‘Eligible Contract Participant,’ 77 FR 30596, May 23, 2012. 310 See Petition at 18–21; see Petition Attachments at 285–291. E:\FR\FM\28AUN2.SGM 28AUN2 52160 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices participate.311 Petitioners further represent that they require a responsible officer of the market participant to certify, on an annual basis, that the market participant has in place risk management policies, procedures and internal controls appropriate to its trading activities.312 Moreover, several Petitioners represent that they have proposed verification programs that confirm that participants who pose significant risks to the markets in which they participate have in place adequate risk management policies and internal controls.313 In terms of credit policies, Petitioners represent that they have established ‘‘comprehensive and integrated’’ credit policies to manage credit risk and protect the financial integrity of transactions with market participants.314 In addition, Petitioners represent that FERC Order 741 placed additional risk management and credit requirements on RTOs and ISOs.315 srobinson on DSK4SPTVN1PROD with NOTICES2 b. Minimum Financial Standards and Ongoing Monitoring for Compliance In addition, based on Petitioners’ representations, it appears that Petitioners’ policies and procedures include minimum financial standards 316 and creditworthiness 311 See Petition at 20; see, e.g., Petition Attachments at 22–24, 27, 33, 37. 312 See Petition at 20; see Petition Attachments at 22, 28, 35, 37, 44, 47–48. 313 See Petition at 20; see, e.g., Petition Attachments at 23, 27, 44, 50. 314 See Petition at 18; see, e.g., Petition Attachments at 22, 25, 30–31, 39–43, 283. 315 See Petition at 19. Such additional requirements include (a) limiting the amount of unsecured credit extended to any market participant to no more than $50 million; (b) adopting a billing period of no more than seven days and allowing a settlement period of no more than seven days; (c) eliminating unsecured credit in the financial transmission rights market; (d) establishing a single counterparty to all market participant transactions, or requiring each market participant to grant a security interest to the RTO or ISO in the receivables of its transactions, or providing another method of supporting netting; (e) limiting the time period by which a market participant must cure a collateral call to no more than two days; (f) requiring minimum participant criteria for market participants to be eligible to participate in the markets; and (g) requiring additional collateral due to a material adverse change. See 18 CFR 35.47. 316 See, e.g., Petition Attachments at 30. Some Petitioners required market participants to demonstrate and maintain certain minimum financial requirements including an investmentgrade credit rating documented by reports of a credit reporting agency, tangible net-worth threshold, total asset threshold, a certain current ratio, or a certain debt to total capitalization ratio. See, e.g., Petition Attachments at 26, 33–34, 37, 43. In certain instances, the minimum financial standards for market participants are scalable to the RTO and ISO markets in which they participate. See, e.g., Petition Attachments at 26, 31. The proposed rule regarding minimum financial standards also requires at a minimum, that VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 standards 317 for their market participants.318 Moreover, Petitioners represent that their policies and procedures, require Petitioners to monitor, on an ongoing basis, their market participants for compliance with such standards.319 c. Establishment of a Central Counterparty As discussed in section V.C. above, FERC regulation 35.47(d) requires RTOs and ISOs to (1) establish a single counterparty to all market participant transactions, (2) require each market participant to grant a security interest in the receivables of its transactions to the relevant RTO or ISO, or (3) provide another method of supporting netting that provides a similar level of protection to the market that is approved by FERC.320 Petitioners have represented that they either are, or plan on becoming, central counterparties.321 As described in section V.D.4.g. above, the Commission is proposing to require that each Petitioner submit a well-reasoned legal memorandum from, or a legal opinion of, outside counsel that, in the Commission’s sole discretion, provides the Commission with adequate assurance that the approach selected by the Petitioner will in fact provide the Petitioner with setoff rights in a bankruptcy proceeding. In addition, the Commission is requesting comment on whether ERCOT should be obligated to comply with the requirements of FERC regulation 35.47(d). d. Conclusion Issues regarding risk management requirements, financial standards, and the use of a central counterparty are also addressed within the context of DCO Core Principle D. The Commission’s preliminary conclusion that Petitioners policies and procedures are congruent members qualify as an eligible contract participant as defined by the CEA. The Commission notes that ISO NE has represented that it has market participants that may not meet the definition of eligible contract participant, but are ‘‘appropriate persons’’ for purposes of the 4(c) exemption. See Petition Attachments at 30. The Commission proposes to condition the granting of the 4(c) request on all parties to the agreement, contract or transaction being ‘‘appropriate persons,’’ as defined sections 4(c)(3)(A) through (J) of the Act or ‘‘eligible contract participants’’ as defined in section 1a(18)(A) of the Act and in Commission regulation 1.3(m). See provision 2.B. of the Proposed Exemption. 317 See Petition at 18; see, e.g., Petition Attachments at 22, 31, 39. 318 See, e.g., Petition Attachments at 27, 30, 35, 84. 319 See Petition Attachments at 56–92. 320 18 CFR 35.47(d). 321 See FERC Order 741 Implementation Chart at 5–6; See generally Petition at 19. PO 00000 Frm 00024 Fmt 4701 Sfmt 4703 with, and sufficiently accomplish, the regulatory objectives of Core Principle D in the context of the Petitioners’ activities with respect to the Transactions is relevant in considering SEF Core Principle 7. Based on the foregoing analysis, including the representations of the Petitioners, Petitioners’ policies and procedures appear to be consistent with, and to accomplish sufficiently, the regulatory objectives of SEF Core Principle 7 in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 8. SEF Core Principle 8: Emergency Authority SEF Core Principle 8 requires that SEFs adopt rules to provide for the exercise of emergency authority.322 A SEF should have procedures and guidelines for decision-making and implementation of emergency intervention in the market. A SEF should have the authority to perform various actions, including without limitation: liquidating or transferring open positions in the market, suspending or curtailing trading in any swap, and taking such market actions as the Commission may direct. In addition, SEFs must provide prompt notification and explanation to the Commission of the exercise of emergency authority.323 Petitioners represent that their Tariffs generally provide a wide range of authorities to address emergency situations.324 Certain Petitioners have the ability to close out and liquidate all of a market participant’s current and forward FTR positions if the market participant no longer meets creditworthiness requirements, or fails to make timely payment when due, in each case following any opportunity given to cure the deficiency.325 Other Petitioners have the authority to suspend trading in their markets.326 Just as the SEFs have rules in place that require them to take emergency actions to protect the markets by ‘‘including imposing or modifying position limits, imposing or modifying price limits, imposing or modifying intraday market restrictions, imposing special margin requirements, ordering the liquidation or transfer of open positions in any contract, ordering the fixing of a settlement price,’’ one 322 7 U.S.C. 7b–3(f)(8). Principles and Other Requirements for Swap Execution Facilities, 76 FR 1229, proposed Jan. 7, 2011. 324 See Petition Attachments at 293–298. 325 See, e.g., id. at 293–295, 298. 326 See, e.g., id. at 296–297. 323 Core E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices Petitioner represents that it may take actions to protect its markets by postponing the closure of affected markets, removing bids that have previously resulted in market disruptions, setting an administrative price to settle metered supply, or demanding, suspending or limiting the ability of scheduling coordinators to submit Energy Transactions.327 Based on the foregoing representations, it appears that Petitioners’ policies and procedures regarding the exercise of emergency authority are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 8 in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. srobinson on DSK4SPTVN1PROD with NOTICES2 9. SEF Core Principle 9: Timely Publication of Trading Information SEF Core Principle 9 requires a SEF to make public timely information on price, trading volume, and other data on swaps to the extent prescribed by the Commission.328 In addition, SEFs are required to have the capacity to electronically capture and transmit trade information with respect to transactions executed on the SEF.329 Petitioners represent that their Tariffs generally require the timely publication of trading information.330 Petitioners regulated by FERC also assert that they are able to publicly release market operations and grid management information using their Open Access Same-Time Information System (OASIS) program.331 This system transmits information which includes market results, the market clearing price and volume.332 Similarly, ERCOT’s protocols require them to disseminate information which relates to market operations, prices, availability of services and the terms and conditions of the FTRs.333 Based on the foregoing representations, it appears that Petitioners’ policies and procedures regarding the publication of trading information are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 9 in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 327 Petition Attachments at 293 (CAISO). U.S.C. 7b–3f(9)(A). 329 7 U.S.C. 7b–3f(9)(B). 330 See Petition Attachments at 300–305. 331 See id. at 300, 302–305. 332 See id. 333 See Petition Attachments at 177–178. 328 7 VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 10. SEF Core Principle 10: Recordkeeping and Reporting SEF Core Principle 10 requires a SEF to maintain records of all activity relating to the business of the SEF, report such information to the Commission and to keep swaps information open to inspection by the Commission.334 Petitioners represent that their Tariffs require their market participants to provide Petitioners with information on a regular and ad hoc basis.335 Petitioners further represent that they are required to comply with FERC or PUCT regulations, as applicable, regarding the maintenance of information by public utilities.336 Based on the Petitioners representations and the discussion regarding DCO Core Principles J and K above,337 it appears that these practices are congruent with, and sufficiently accomplish the regulatory objectives of SEF Core Principle 10 in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 11. SEF Core Principle 11: Antitrust Considerations SEF Core Principle 11 prevents a SEF from adopting any rule or taking any action that results in any unreasonable restraint of trade, or imposes any material anticompetitive burden, unless necessary or appropriate to achieve the purposes of the Act.338 As discussed above, FERC established the RTO/ISO system to promote competition in the electricity market.339 Petitioners represent that their rates, terms and conditions of service are subject to the oversight, review and acceptance of FERC or PUCT, as applicable.340 Petitioners further represent that FERC or PUCT and their MMUs review trading activity to identify anticompetitive behavior.341 Based on Petitioners’ representations and the discussion of DCO Core Principle N above,342 it appears that Petitioners’ existence and practices are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 11 in the context of 334 7 U.S.C. 7b–3(f)(10). generally Petition at 307–312. 336 See, e.g., id. at 309. 337 See the discussions in sections V.D.10. and V.D.11. supra. 338 7 U.S.C. 7b–3(f)(11). 339 See FERC Order Nos. 888 and 2000. See also the discussion in section V.D.14. supra. 340 See generally Petition Attachments at 192– 198. 341 See generally id. 342 See also the discussion in section V.D.14. supra. 335 See PO 00000 Frm 00025 Fmt 4701 Sfmt 4703 52161 Petitioners’ activities with respect to the Transactions. The Commission seeks comment on this preliminary conclusion. 12. SEF Core Principle 12: Conflicts of Interest SEF Core Principle 12 requires a SEF to establish and enforce rules to minimize conflicts of interest and establish a process for resolving conflicts of interest.343 As discussed above, FERC Order No. 888 requires ISOs to adopt or enforce strict conflict of interest policies.344 Similarly, FERC Order No. 2000 requires RTOs to be independent of any market participant, and to include in their demonstration of independence that the RTO, its employees, and any non-stakeholder directors do not have financial interests in any market participant.345 Each Petitioner represents that it has either established codes of conduct, which include conflict of interest rules, for employees and members of the Board of Directors 346 or implemented specific policies and procedures to mitigate conflicts of interest.347 Based on Petitioners’ representations and the discussion of DCO Core Principle P above,348 it appears that Petitioners’ conflict of interest policies and the requirements to which the Petitioners are subject are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 12 in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 13. SEF Core Principle 13: Financial Resources SEF Core Principle 13 requires a SEF to have adequate financial, operational and managerial resources to discharge each responsibility of the SEF.349 In addition, the financial resources of a SEF are considered to be adequate if the value of the financial resources exceeds the total amount that would enable the SEF to cover the operating costs of the SEF for a 1-year period, as calculated on a rolling basis.350 Petitioners represent that they have rules in place that allow them to collect revenue from market participants 343 7 U.S.C. 7b–3(f)(12). FERC Order No. 888 at 281. 345 See FERC Order No. 2000 at 709; 18 CFR 35.34(j)(1). 346 See Petition Attachments at 210, 213–216, 321, 324–326. 347 See id. at 211, 322. 348 See the discussion in section V.D.16. supra. 349 7 U.S.C. 7b–3(f)(13)(A). 350 7 U.S.C. 7b–3(f)(13)(B). 344 See E:\FR\FM\28AUN2.SGM 28AUN2 52162 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices sufficient for each of their operations.351 Petitioners further represent to have adequate managerial resources to operate their systems.352 As discussed above, FERC Order No. 888 requires RTOs to have appropriate incentives for efficient management and administration.353 Each Petitioner represents that it has sufficient staff necessary for its operations.354 Based on Petitioners’ representations and the discussion regarding DCO Core Principle B above,355 it appears that Petitioners’ practices are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 13 in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 14. SEF Core Principle 14: System Safeguards srobinson on DSK4SPTVN1PROD with NOTICES2 SEF Core Principle 14 requires a SEF to establish and maintain a program of risk analysis and oversight to identify and minimize sources of operational risk, through the development of appropriate controls and procedures, and automated systems, that are reliable and secure, and have adequate scalable capacity.356 Moreover, a SEF must establish and maintain emergency procedures, backup facilities, and a plan for disaster recovery that allows for the timely recovery and resumption of operations, and the fulfillment of the responsibilities and obligations of the SEF.357 The SEF must also conduct tests to verify that the backup resources of the SEF are sufficient to ensure continued order processing and trade matching, price reporting, market surveillance, and maintenance of a comprehensive and accurate audit trail.358 Petitioners represent that they have a program of risk analysis and oversight to identify and minimize sources of operational risk through the development of appropriate controls and procedures; reliable automated systems; and emergency procedures.359 Indeed, Petitioners are responsible for managing power reliably and, thus, 351 See Petition Attachments at 3–4, 6, 8–10, 13, 16, 20, 328–333. 352 See id. at 3, 7–8, 10, 13, 16, 18–19. 353 See supra n. 86 and accompanying text. 354 See Petition Attachments at 3, 7, 12, 13, 16– 17, 18–19, 335–340. See also analysis under DCO Core Principle B. 355 See the discussion in section V.D.2. supra. 356 7 U.S.C. 7b–3(f)(14)(A). 357 7 U.S.C. 7b–3(f)(14)(B). 358 7 U.S.C. 7b–3(f)(14)(C). 359 See generally Petition Attachments at 152– 158, 333–340. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 require additional operational safeguards to specifically address that function.360 Petitioners represent that they have computer systems that incorporate adequate business continuity and disaster recovery functionality.361 Some Petitioners state that they maintain offsite backup computer systems fully able to operate in the event the primary system fails 362 whereas other Petitioners state that they operate two control centers and/or two data centers in which each center is functionally capable of operating as the primary center.363 Some Petitioners further state that they conduct testing of emergency procedures and system components on a regular basis to ensure that mission critical processes and vital records are recoverable, as well as the readiness of backup facilities and personnel.364 Based on Petitioners’ representations and the discussion regarding DCO Core Principle I above,365 it appears that Petitioners’ practices are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 14 in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. 15. SEF Core Principle 15: Designation of Chief Compliance Officer SEF Core Principle 15 requires that a SEF designate an individual as Chief Compliance Officer, with specific delineated duties.366 The Chief 360 See 361 See supra n. 230 and accompanying text. Petition Attachments at 152–158, 333– 339. 362 See id. at 152, 155–157. id. at 153, 158. Certain Petitioners maintain alternate operational control centers in addition to offsite backup computer systems and data centers. See id. at 155–157. 364 See id. at 152, 154, 156, 158. 365 See also the discussion in section V.D.8. supra. 366 See 7 U.S.C. 7b–3(f)(15). designation of chief compliance officer.— (A) IN GENERAL.—Each swap execution facility shall designate an individual to serve as a chief compliance officer. (B) DUTIES.—The chief compliance officer shall— (i) report directly to the board or to the senior officer of the facility; (ii) review compliance with the core principles in this subsection; (iii) in consultation with the board of the facility, a body performing a function similar to that of a board, or the senior officer of the facility, resolve any conflicts of interest that may arise; (iv) be responsible for establishing and administering the policies and procedures required to be established pursuant to this section; (v) ensure compliance with this Act and the rules and regulations issued under this Act, including rules prescribed by the Commission pursuant to this section; and 363 See PO 00000 Frm 00026 Fmt 4701 Sfmt 4703 Compliance Officer for a SEF would be responsible for reporting to the board and ensuring that the SEF is in compliance with the SEF rules. Each Petitioner represents that it has a Chief Compliance Officer 367 or the functional equivalent of such a position.368 Based on the Petitioners’ representations, it appears that Petitioners’ practices are congruent with, and sufficiently accomplish, the regulatory objectives of SEF Core Principle 15 in the context of Petitioners’ activities with respect to the Transactions. The Commission seeks comment with respect to this preliminary conclusion. VIII. Proposed Exemption A. Discussion of Proposed Exemption Pursuant to the authority provided by section 4(c)(6) of the CEA,369 in accordance with CEA sections 4(c)(1) and (2), and consistent with the Commission’s determination that the statutory requirements for granting an exemption pursuant to section 4(c)(6) of the Act have been satisfied, the Commission is proposing to issue the exemption described in the Proposed Exemption set forth below. The Proposed Exemption would exempt, subject to the limitations and conditions contained therein, the purchase and sale of certain electricity-related products, including specifically-defined ‘‘financial transmission rights,’’ ‘‘energy transactions,’’ ‘‘forward capacity transactions,’’ and ‘‘reserve or regulation transactions,’’ from most provisions of (vi) establish procedures for the remediation of noncompliance issues found during compliance office reviews, look backs, internal or external audit findings, self-reported errors, or through validated complaints. 367 See Petition Attachments at 342–346. 368 PJM has two compliance heads who coordinate closely but are separately responsible for compliance in the following two distinct areas: (1) compliance with regulatory and legal obligations; and (2) compliance with reliability standards as promulgated by the regional reliability counsels, NERC and FERC. Regulatory and legal compliance addresses legal obligations, including compliance with the PJM Tariff, FERC regulations and laws, and regulations governing other corporate matters, such as antitrust, human resources and procurement. Regulatory and legal compliance is handled in the Office of General Counsel, by an Assistant General Counsel and Director of Regulatory Oversight and Compliance. Reliability compliance addresses the security of the grid, both operationally and from any cyber threat. This function is handled in the area of operations and the Executive Director of Reliability and Compliance reports directly to the senior vice president for operations. All compliance functions (both reliability and regulatory) are coordinated through PJM’s Regulatory Oversight & Compliance Committee (‘‘ROCC’’). The ROCC is chaired by the Assistant General Counsel who has reporting obligations to the CEO and a direct line to the Board’s Governance Committee and Audit Committee. See Petition Attachments at 347. 369 7 U.S.C. 6(c). E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices the CEA. The Commission is proposing to explicitly exclude from the exemption relief the Commission’s general anti-fraud, anti-manipulation and enforcement authority under the CEA including, but not limited to, CEA sections 2(a)(1)(B), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9 and 13 and any implementing regulations promulgated thereunder including, but not limited to Commission regulations 23.410(a) and (b), 32.4 370 and part 180.371 The preservation of the Commission’s antifraud and anti-manipulation authority provided by these provisions generally is consistent with both the scope of the exemption requested in the Petition 372 and recent Commission practice.373 The particular categories of contracts, agreements and transactions to which the Proposed Exemption would apply correspond to the types of transactions for which relief was explicitly requested in the Petition.374 Petitioners requested relief for four specific types of transactions and the Proposed Exemption would exempt those transactions. With respect to those transactions, the Petition also included the parenthetical ‘‘(including generation, demand response or convergence or virtual bids/ transactions).’’ 375 The Commission notes that such transactions would be included within the scope of the exemption if they would qualify as the financial transmission rights, energy transactions, forward capacity transactions or reserve or regulation transactions for which relief is explicitly 370 17 CFR 23.410(a)–(b), 32.4 and part 180. CFR part 180. 372 See Petition at 33–34. Petitioners requested relief from ‘‘all provisions of the Act and Commission regulations, except in each case sections 4b, 4o, 6(c) and 9(a)(3) of the Act to the extent that these sections prohibit fraud in connection with transactions subject to the Act, or manipulation of the price of any swap or contract for the sale of a commodity in interstate commerce or for future delivery on or subject to the rules of a registered entity, and from the requirement to provide information to the Commission as expressly permitted by their respective protocols or as provided under section 720 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.’’ The Proposed Exemption simply would preserve the Commission’s authority under the delineated provisions and their implementing regulations without caveat, in order to avoid ambiguity as to what conduct remains prohibited. 373 See, e.g., Order (1) Pursuant to Section 4(c) of the Commodity Exchange Act, Permitting the Kansas City Board of Trade Clearing Corporation To Clear Over-the-Counter Wheat Calendar Swaps and (2) Pursuant to Section 4d of the Commodity Exchange Act, Permitting Customer Positions in Such Cleared-Only Swaps and Associated Funds To Be Commingled With Other Positions and Funds Held in Customer Segregated Accounts, 75 FR 34983, 34985 (2010). 374 Petition at 5–9. 375 Id. at 6. srobinson on DSK4SPTVN1PROD with NOTICES2 371 17 VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 provided within the exemption. Petitioners also have requested relief for ‘‘the purchase and sale of a product or service that is directly related to, and a logical outgrowth of, any [of Petitioner’s] core functions as an ISO/ RTO * * * and all services related thereto.’’ 376 The Commission has determined that it would be inappropriate, and, accordingly, has declined to propose that the exemption be extended beyond the scope of the transactions that are specifically defined in the Proposed Exemption. As noted above, the authority to issue an exemption from the CEA provided by section 4(c) of the Act may not be automatically or mechanically exercised. Rather, the Commission is required to affirmatively determine, inter alia, that the exemption would be consistent with the public interest and the purposes of the Act.377 With respect to the four groups of transactions explicitly detailed in the Proposed Exemption, the Commission’s proposed finding that the Proposed Exemption would be in the public interest and would be consistent with the purposes of the CEA was grounded, in part, on certain transaction characteristics and market circumstances described in the Petition that may or may not be shared by other, as yet undefined, transactions engaged in by the Petitioners or other RTO or ISO market participants.378 Similarly, unidentified transactions might include novel features or have market implications or risks that are not present in the specified transactions. Such elements may impact the Commission’s required section CEA 4(c) public interest analysis or may warrant the attachment of additional or differing terms and conditions to any relief provided. Due to the potential for adverse consequences resulting from an exemption that includes transactions whose qualities and effect on the broader market cannot be fully appreciated absent further specification, it does not appear that the Commission can justify a conclusion that it would be in the public interest to provide an exemption of the full breadth requested. The Commission notes, however, that it has requested comment on whether the proposed scope of the exemption is sufficient to allow for innovation and, if not, how the scope could be expanded, without exempting products that may be substantially different from those 376 Id. at 9. U.S.C. 6(c). 378 For example, the transactions that included with the scope of the Proposed Exemption appear to be limited to those tied to the physical capacity of the Petitioners’ electricity grids. Petition at 6–8, 11. 377 7 PO 00000 Frm 00027 Fmt 4701 Sfmt 4703 52163 reviewed by the Commission. The Commission also notes that it stands ready to review promptly any additional applications for an exemption pursuant to section 4(c)(6), in accordance with CEA sections 4(c)(1) and (2), of the CEA for other precisely defined products.379 The scope of the Proposed Exemption is limited by two additional factors. First, it is restricted to agreements, contracts or transactions where all parties thereto are either: (1) Entities described in section 4(c)(3)(A) through (J) of the CEA 380 or (2) ‘‘eligible contract participants,’’ as defined in section 1a(18) of the Act 381 or in Commission regulation 1.3(m).382 Although Petitioners have requested an exemption pursuant to section 4(c)(6) of the CEA, any exemption pursuant to this subsection must be issued in ‘‘in accordance with’’ sections 4(c)(1) and 4(c)(2).383 Section 4(c)(2) prohibits the Commission from issuing an exemption pursuant to section 4(c) unless the Commission determines that the agreement, contract or transaction ‘‘will be entered into solely between ‘appropriate persons.’ ’’ Appropriate persons include those entities explicitly delineated in sections 4(c)(3)(A) through (J) of the Act as well as others that the Commission, under the discretionary authority provided by section 4(c)(3)(K), deems to be appropriate persons ‘‘in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.’’ 384 As noted above, the Commission has proposed to determine that eligible contract participants, as defined in section 1a(18) of the Act or in Commission regulation 1.3(m), should be considered appropriate persons for purposes of the Proposed Exemption.385 The Commission recognizes that the market participant eligibility standards 379 The Commission is currently reviewing two supplemental petitions. Specifically, ISO NE has filed a supplemental request for an exemption pursuant to section 4(c)(6) for ‘‘IBT’’ Transactions. See In the Matter of the Application for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by ISO New England Inc. (Apr. 30, 2012), available at http://www.cftc.gov/ stellent/groups/public/@requestsandactions/ documents/ifdocs/iso-ne4crequest.pdf. CAISO has filed a similar request for ‘‘inter-scheduling coordinator trades’’ or ‘‘inter-SC trades.’’ See In the Matter of the Application for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by California Independent System Operator Corporation (May 30, 2012), available at http:// www.cftc.gov/stellent/groups/public/ @requestsandactions/documents/ifdocs/ caiso4crequest.pdf. 380 7 U.S.C. 6(c)(3)(A)–(J). 381 7 U.S.C. 1a(18). 382 17 CFR 1.3(m). 383 7 U.S.C. 6(c). 384 7 U.S.C. 6(c)(3). 385 See discussion in section V.B.3. supra. E:\FR\FM\28AUN2.SGM 28AUN2 srobinson on DSK4SPTVN1PROD with NOTICES2 52164 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices of an individual RTO or ISO may not be coextensive with the criteria required by sections 4(c)(3)(A) through (J) or section 1a(18) of the Act and, therefore, there may be certain RTO or ISO participants engaging in transactions of the type described in the Proposed Exemption that would not qualify for the Proposed Exemption. In particular, the Commission is interested in considering market participants that ‘‘active[ly] participat[e] in the generation, transmission or distribution of electricity’’ that are not ECPs and do not fall within CEA section 4(c)(3)(A) through (J), who should nonetheless be included as appropriate persons pursuant to CEA section 4(c)(3)(K). Accordingly, the Commission has requested comment on whether the Commission should enlarge the list of appropriate persons for purposes of the exemption to include other types of entities identified in the Petition that satisfy alternative criteria. Any request to include additional entities should be accompanied by a description of the financial or other qualifications of such entities or the available regulatory protections that would render them comparable to the appropriate persons and eligible contract participants delineated in the Act. The Commission also is interested in receiving comments addressing whether and how market participants who satisfy substitute qualifications would be capable of bearing the risks associated with the relevant markets. In order to be eligible for the exemption that would be provided by the Proposed Exemption, the agreement, contract or transaction also must be offered or sold pursuant to the ‘‘tariff’’ of a ‘‘requesting party’’ and the tariff must have been approved or permitted to take effect by the PUCT (in the case of ERCOT) or by FERC (in the case of all other Petitioners). This requirement reflects the range of the Commission’s authority as set forth in section 4(c)(6) 386 of the CEA and is consistent with the scope of the relief requested.387 ‘‘Requesting Party’’ is defined to include the six Petitioners (i.e., CAISO, ERCOT, ISO NE., MISO, NYSO and PJM) and any of their respective successors in interest. To account for differences in terminology used by such entities and their respective regulators, the term ‘‘tariff’’ is defined to include a ‘‘tariff, rate schedule or protocol.’’ Consistent with the range of the statutory authority explicitly provided by CEA section 4(c), the Proposed Exemption would extend the exemption 386 See the discussion in section V.A. supra. at 2–3. 387 Petition VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 to the agreements, contracts or transactions set forth therein and ‘‘any person or class of persons offering, entering into, rendering advice or rendering other services with respect to’’ such transactions. In addition, for as long as the Proposed Exemption would remain in effect, each of the six named Petitioners 388 would be able to avail themselves of the Proposed Exemption with respect to all four expresslyidentified groups of products, regardless of whether or not the particular Petitioner offers the particular product at the present time. That is, a Petitioner would not be required to request future supplemental relief for a product that it does not currently offer, but that qualifies as one of the four types of transactions in the Proposed Exemption. All six Petitioners that filed the consolidated Petition requested an exemption of the scope provided and the Petition was analyzed accordingly.389 The exemption would not extend, however, to any RTO or ISO that was not a party to the Petition under consideration because the Commission has not reviewed the tariffs or business practices of any other RTO or ISO and, therefore, cannot discern whether extending the Proposed Exemption to it would be equally congruent with the public interest and the purposes of the Act. The Commission has determined to issue one Proposed Exemption in lieu of the six separate orders requested by Petitioners.390 In light of the fact that there are ‘‘[congruents] in [the Petitioners’] markets and operations,’’ and the fact that the exemption for each will be coextensive, as requested by the Petitioners,391 it would appear that 388 CAISO, ERCOT, ISO NE., MISO, NYSO and PJM. 389 The Requestors note that it is ‘‘reasonable to expect that each ISO/RTO will, over time, consider offering under its own individual tariff one or more classes of contract, agreement and transaction that is currently offered under any other ISO/RTO tariff,’’ and accordingly request that exemption be granted to all requestors for transactions that are currently offered by any of them. Petition at 6. 390 See Petition at 2. 391 See Petition at 6: ‘‘While the ISOs/RTOs operate pursuant to individual tariffs, they share many commonalities in their markets and operations. Although the current market structures of the individual ISOs/ RTOs may vary, it is reasonable to expect that each ISO/RTO will, over time, consider offering under its own individual tariff one or more classes of contract, agreement or transaction that is currently offered under any other ISO/RTO tariff. We thus request that each individual exemptive Order apply collectively to each class of contract, agreement or transaction provided by the ISOs/RTOs. This will provide the appropriate breadth to the exemptive Order so that an individual Requestor will not be required to seek future amendments to offer or enter into contracts, agreements or transactions that are currently offered by any other Requestor.’’ PO 00000 Frm 00028 Fmt 4701 Sfmt 4703 issuing six separate but identical Proposed Exemptions that raise the same issues and questions is unnecessary, could result in needlessly duplicative comments and would be an inefficient use of Commission resources. Any concerns that the public may have with respect to providing relief to any particular Petitioner can be adequately explained in a sole comment on the consolidated Proposed Exemption. The Commission disagrees with the Petitioners’ assertion that distinct orders are necessary because a solitary order would require each Petitioner to submit an individual application to obtain supplemental relief or to amend the relief provided thereby. To the contrary, the Commission confirms that individual Petitioners (or other entities) may file individual requests for supplemental exemptions and the Commission may, consistent with the criteria under CEA section 4(c)(6), issue further exemptions either individually or in the collective, as necessary or appropriate and in accordance with the facts and circumstances presented.392 In fact, ISO NE and CAISO have filed individual requests for supplemental relief that currently are under review by Commission staff.393 The Proposed Exemption indicates that, when a final order is issued, it would be made effective immediately. The Commission proposes, however, three conditions precedent to the issuance of a final exemption that may be applicable to one or more specific Petitioners. First, the Commission proposes to refrain from issuing a final order to a specific RTO or ISO unless the RTO or ISO has adopted all of requirements set forth in FERC regulation 35.47; 394 such tariff provisions have been approved or have been permitted to take effect by FERC or PUCT, as applicable; and such tariff provisions, have become effective and have been fully implemented by the particular RTO or ISO. That is, the Commission is considering requiring 392 Section 4(c) permits the Commission to issue an exemption ‘‘on its own initiative or on application of any person.’’ 7 U.S.C. 4(c)(1). 393 See In the Matter of the Application for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by ISO New England Inc. (Apr. 30, 2012), available at http://www.cftc.gov/ stellent/groups/public/@requestsandactions/ documents/ifdocs/iso-ne4crequest.pdf. CAISO has filed a similar request for ‘‘inter-scheduling coordinator trades’’ or ‘‘inter-SC trades.’’ See In the Matter of the Application for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by California Independent System Operator Corporation (May 30, 2012), available at http:// www.cftc.gov/stellent/groups/public/ @requestsandactions/documents/ifdocs/ caiso4crequest.pdf. 394 18 CFR 35.47. E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 that any policies and procedures that the RTO or ISO has adopted in order to comply with the obligations contained in FERC regulation 35.47 be in actual practice. Petitioners note that their structure and operations are different from the DCOs registered with the Commission.395 However, FERC Regulation 35.47 is a set of credit policies purpose-built for RTOs and ISOs. The Commission’s statutorily required determination that the Proposed Exemption is consistent with the public interest and the purposes of the Act was supported, in considerable part, on the grounds that the credit reform policies mandated by FERC regulation 35.47 396 were consistent with the regulatory objectives of several of the core principles applicable to DCOs and the expectation that the Petitioners regulated by FERC would put those mandates into practice prior to the issuance of the exemption. Moreover, while ERCOT is not subject to regulation by FERC, the fact that these mandates were developed specifically for RTOs and ISOs suggests that holding ERCOT to these standards may well be appropriate. While all Petitioners have represented that they have fulfilled certain requirements of FERC regulation 35.47, it appears that material gaps in complete execution remain.397 For example, due to requested extensions of time for compliance, certain Petitioners have only recently submitted tariffs to comply with FERC regulation 35.47(d) (accordingly, the tariffs remain subject to FERC approval) and, in some cases, full implementation is not expected until 2013.398 Because the implementation of the FERC credit reform policies is central to the Commission’s determination that this exemption is in the public interest, it may well be that requiring Petitioners to have fully implemented such reforms prior to the issuance of a final order is necessary and appropriate. Second, the Commission proposes as an additional prerequisite to the issuance of an exemption to an RTO or ISO that the RTO or ISO provide a wellreasoned legal opinion or memorandum from outside counsel that, in the Commission’s sole discretion, provides Petition Attachments at 1. CFR 35.47. 397 See generally FERC Order 741 Implementation Chart. 398 See, e.g., FERC Order 741 Implementation Chart at 6 (stating that ISO NE submitted a package of tariff changes with FERC to establish itself as the central counterparty for market participant transactions. The filing was made with a requested effective date of January 1, 2013). the Commission with assurance that the netting arrangements contained in the approach selected by the particular Petitioner to satisfy the obligations contained in FERC regulation 35.47(d) will, in fact, provide the Petitioner with enforceable rights of setoff against any of its market participants under title 11 of the United States Code 399 in the event of the bankruptcy of the market participant.400 There appears to be strong support for the proposition that a central counterparty structure would achieve the mutuality of obligation necessary for enforceable rights of setoff for the central counterparty, and Petitioners have represented that they either are, or plan on becoming, central counterparties.401 The Commission is concerned, however, that there is some ambiguity as to how individual Petitioners are interpreting the single counterparty requirement contained in FERC regulation 35.47(d) and whether the single counterparty structure chosen by individual Petitioners would provide enforceable setoff rights. For example, the Petition states that ERCOT ‘‘expects to adopt the central counterparty structure; however, this structure will not involve clearing, as that term applies to a designated clearing organization or swaps execution facility (i.e., the central counterparty does not act as a financial intermediary, nor is there any novation of transactions to a central counterparty).’’ 402 The Commission shares FERC’s goal of ensuring that, in the event of bankruptcy of a participant, Petitioners are not prohibited from offsetting accounts receivable against accounts payable. Consistent with that goal and to mitigate any ambiguity regarding the bankruptcy protections provided by the central counterparty arrangements adopted by particular Petitioners, the Commission is proposing to require, as a prerequisite to the granting of the 4(c) request to a particular Petitioner, that the Commission be provided with a legal opinion or memoranda of counsel, applicable to the tariffs and operations of that Petitioner, that provides the Commission with assurance that the approach selected by the Petitioner to satisfy the obligations contained in FERC regulation 35.47(d) will provide the Petitioner with rights of setoff, 395 See 396 18 VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 399 See 11 U.S.C. 553. text at n. 122 and text at n. 208 supra. 401 The Commission also notes that not all of the central counterparty arrangements proposed by Petitioners have been approved by their respective regulators and/or become effective and, accordingly, are potentially subject to change. See, e.g., FERC Order 741 Implementation Chart at 5–6. 402 Petition Attachments at 28. 400 See PO 00000 Frm 00029 Fmt 4701 Sfmt 4703 52165 enforceable against any of its market participants under title 11 of the United States Code in the event of the bankruptcy of the market participant. The Commission would retain sole discretion to accept or reject the adequacy of the legal opinion or memoranda for purposes of issuing the exemption. As noted above, the Commission is seeking comment on the preconditions set forth above and the costs and benefits thereof. Third, the Proposed Exemption would be conditioned, as applicable to ERCOT, on the completion of an information sharing agreement, acceptable to the Commission, between the PUCT and the Commission. As with the 2005 Memorandum of Understanding (‘‘MOU’’) between the Commission and FERC, as discussed below, the Commission would expect the terms of a CFTC–PUCT MOU to provide that PUCT will furnish information in its possession to the CFTC upon its request and will notify the CFTC if any information requested by it is not in PUCT’s possession. As noted above, the Commission is seeking comment on the preconditions set forth above and the costs and benefits thereof. The Proposed Exemption also contains certain information-sharing conditions. First, the Proposed Exemption is expressly conditioned upon the existing information sharing arrangement between the Commission and FERC, and, as noted above, the completion of an information sharing agreement between the Commission and PUCT. The Commission notes that the CFTC and FERC executed a MOU in 2005 pursuant to which the agencies have shared information successfully.403 The terms of the CFTC–FERC MOU provide that FERC will furnish information in its possession to the CFTC upon its request and will notify the CFTC if any information requested by it is not in FERC’s possession. The Petitioners recognize the need to be responsive to Commission requests for information and ‘‘to assist the Commission as necessary in fulfilling its mission under the Act’’ 404 and Petitioners have indicated their intent to be responsive to requests for information by the Commission that will further enable the Commission to perform its regulatory and enforcement duties.405 Petitioners caveat this assistance, however, by stating that ‘‘certain of the tariffs may require that 403 FERC MOU (Oct. 12, 2005) available at http://www.ferc.gov/legal/maj-ord-reg/mou/mou33.pdf. 404 Petition at 25. 405 Id. at 25–26. E:\FR\FM\28AUN2.SGM 28AUN2 52166 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 an ISO/RTO notify its members prior to providing information in response to a subpoena.’’ 406 This notice requirement could significantly compromise the Commission’s enforcement efforts as there are likely to be situations where it would be neither prudent nor advisable for an entity under investigation by the Commission to learn of the investigation prior to Commission notification to the entity. Accordingly, the Proposed Exemption includes a second information-sharing condition that requires that neither the tariffs nor any other governing documents of the particular RTO or ISO pursuant to whose tariff the agreement, contract or transaction is to be offered or sold, shall include any requirement that the RTO or ISO notify its members prior to providing information to the Commission in response to a subpoena or other request for information or documentation. The Commission specifically requests comment on this condition and as to whether there may be an alternative condition that the Commission might use to achieve the same result. Finally, the Proposed Exemption expressly notes that it is based upon the representations made in the Petition and in the supporting materials provided to the Commission by the Petitioners and their counsel and that any material change or omission in the facts and circumstances pursuant to which the Proposed Exemption is granted might require the Commission to reconsider its finding that the exemption contained therein is appropriate and/or in the public interest. The Commission has also explicitly reserved the discretionary authority, to suspend, terminate or otherwise modify or restrict the exemption provided. The reservation of these rights is consistent with prior Commission practice and is necessary to provide the Commission with the flexibility to address relevant facts or circumstances as they arise. B. Proposed Exemption Consistent with the determinations set forth above, the Commission hereby proposes to issue the following Order: Pursuant to its authority under section 4(c)(6), in accordance with CEA sections 4(c)(1) and (2), of the Commodity Exchange Act (‘‘CEA’’ or Act’’), the Commodity Futures Trading Commission (‘‘CFTC’’ or ‘‘Commission’’). 1. Exempts, subject to the conditions and limitations specified herein, the purchase or sale of the electricityrelated agreements, contracts, and 406 Id. at 26. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 transactions that are specified in paragraph 2 of this Order and any person or class of persons offering, entering into, rendering advice, or rendering other services with respect thereto, from all provisions of the CEA, except, in each case, the Commission’s general anti-fraud, anti-manipulation and enforcement authority under the CEA, including, but not limited to, CEA sections 2(a)(1)(B), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9 and 13 and any implementing regulations promulgated thereunder including, but not limited to, Commission regulations 23.410(a) and (b), 32.4 and part 180. 2. Scope. This exemption applies only to agreements, contracts and transactions that satisfy all of the following requirements: a. The agreement, contract or transaction is for the purchase and sale of one of the following electricityrelated products: (1) The ‘‘Financial Transmission Rights’’ defined in paragraph 5(a) of this Order, except that the exemption shall only apply to such Financial Transmission Rights where: (a) Each Financial Transmission Right is linked to, and the aggregate volume of Financial Transmission Rights for any period of time is limited by, the physical capability (after accounting for counterflow) of the electricity transmission system operated by a Requesting Party offering the contract, for such period; (b) The Requesting Party serves as the market administrator for the market on which the Financial Transmission Rights are transacted; (c) Each party to the transaction is a member of the Requesting Party (or is the Requesting Party itself) and the transaction is executed on a market administered by that Requesting Party; and (d) The transaction does not require any party to make or take physical delivery of electricity. (2) ‘‘Energy Transactions’’ as defined in paragraph 5b of this Order. (3) ‘‘Forward Capacity Transactions,’’ as defined in paragraph 5c of this Order. (4) ‘‘Reserve or Regulation Transactions’’ as defined in paragraph 5d of this Order. b. All parties to the agreement, contract or transaction are ‘‘appropriate persons,’’ as defined sections 4(c)(3)(A) through (J) of the CEA or ‘‘eligible contract participants’’ as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m). c. The agreement, contract or transaction is offered or sold pursuant to a Requesting Party’s tariff and that tariff PO 00000 Frm 00030 Fmt 4701 Sfmt 4703 has been approved or permitted to take effect by: (1) In the case of the Electricity Reliability Council of Texas (‘‘ERCOT’’), the Public Utility Commission of Texas (‘‘PUCT’’) or (2) In the case of all other Requesting Parties, the Federal Energy Regulatory Commission (‘‘FERC’’). 3. Applicability to particular regional transmission organizations (‘‘RTOs’’) and independent system operators (‘‘ISOs’’). Subject to the conditions contained in the Order, the Order applies to all Requesting Parties with respect to the transactions described in paragraph 2 of this Order. 4. Conditions. The exemption provided by this Order is expressly conditioned upon the following: a. Information sharing: With respect to ERCOT, information sharing arrangements between the Commission and PUCT that are acceptable to the Commission are executed and continue to be in effect. With respect to all other Requesting Parties, information sharing arrangements between the Commission and FERC that are acceptable to the Commission continue to be in effect. b. Notification of requests for information: With respect to each Requesting Party, neither the tariffs nor any other governing documents of the particular RTO or ISO pursuant to whose tariff the agreement, contract or transaction is to be offered or sold, shall include any requirement that the RTO or ISO notify its members prior to providing information to the Commission in response to a subpoena or other request for information or documentation. 5. Definitions. The following definitions shall apply for purposes of this Order: a. A ‘‘Financial Transmission Right’’ is a transaction, however named, that entitles one party to receive, and obligates another party to pay, an amount based solely on the difference between the price for electricity, established on an electricity market administered by a Requesting Party, at a specified source (i.e., where electricity is deemed injected into the grid of a Requesting Party) and a specified sink (i.e., where electricity is deemed withdrawn from the grid of a Requesting Party). The term ‘‘Financial Transmission Rights’’ includes Financial Transmission Rights and Financial Transmission Rights in the form of options (i.e., where one party has only the obligation to pay, and the other party only the right to receive, an amount as described above). b. ‘‘Energy Transactions’’ are transactions in a ‘‘Day-Ahead Market’’ E:\FR\FM\28AUN2.SGM 28AUN2 srobinson on DSK4SPTVN1PROD with NOTICES2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices or ‘‘Real-Time Market,’’ as those terms are defined in paragraphs 5e and 5f of this Order, for the purchase or sale of a specified quantity of electricity at a specified location (including ‘‘Demand Response,’’ as defined in paragraph 5c(2) of this Order, where: (1) The price of the electricity is established at the time the transaction is executed; (2) Performance occurs in the RealTime Market by either (a) Delivery or receipt of the specified electricity, or (b) A cash payment or receipt at the price established in the Real-Time Market; and (3) The aggregate cleared volume of both physical and cash-settled energy transactions for any period of time is limited by the physical capability of the electricity transmission system operated by a Requesting Party for that period of time. c. ‘‘Forward Capacity Transactions’’ are transactions in which a Requesting Party, for the benefit of load-serving entities, purchases any of the rights described in subparagraphs (1), (2) and (3) below. In each case, to be eligible for the exemption, the aggregate cleared volume of all such transactions for any period of time shall be limited to the physical capability of the electricity transmission system operated by a Requesting Party for that period of time. (1) ‘‘Generation Capacity,’’ meaning the right of a Requesting Party to: (a) Require certain sellers to maintain the interconnection of electric generation facilities to specific physical locations in the electric-power transmission system during a future period of time as specified in the Requesting Party’s Tariff; (b) Require such sellers to offer specified amounts of electric energy into the Day-Ahead or Real-Time Markets for electricity transactions; and (c) Require, subject to the terms and conditions of a Requesting Party’s Tariff, such sellers to inject electric energy into the electric power transmission system operated by the Requesting Party; (2) ‘‘Demand Response,’’ meaning the right of a Requesting Party to require that certain sellers of such rights curtail consumption of electric energy from the electric power transmission system operated by a Requesting Party during a future period of time as specified in the Requesting Party’s Tariff; or (3) ‘‘Energy Efficiency,’’ meaning the right of a Requesting Party to require specific performance of an action or actions that will reduce the need for Generation Capacity or Demand Response Capacity over the duration of VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 a future period of time as specified in the Requesting Party’s Tariff. d. ‘‘Reserve or Regulation Transactions’’ are transactions: (1) In which a Requesting Party, for the benefit of load-serving entities and resources, purchases, through auction, the right, during a period of time as specified in the Requesting Party’s Tariff, to require the seller of such right to operate electric facilities in a physical state such that the facilities can increase or decrease the rate of injection or withdrawal of a specified quantity of electricity into or from the electric power transmission system operated by the Requesting Party with: (a) Physical performance by the seller’s facilities within a response time interval specified in a Requesting Party’s Tariff (Reserve Transaction); or (b) Prompt physical performance by the seller’s facilities (Area Control Error Regulation Transaction); (2) For which the seller receives, in consideration, one or more of the following: (a) Payment at the price established in the Requesting Party’s Day-Ahead or Real-Time Market, as those terms are defined in paragraphs 5f and 5g of this Order, price for electricity applicable whenever the Requesting Party exercises its right that electric energy be delivered (including Demand Response, ’’ as defined in paragraph 5c(2) of this Order); (b) Compensation for the opportunity cost of not supplying or consuming electricity or other services during any period during which the Requesting Party requires that the seller not supply energy or other services; (c) An upfront payment determined through the auction administered by the Requesting Party for this service; (d) An additional amount indexed to the frequency, duration, or other attributes of physical performance as specified in the Requesting Party’s Tariff; and (3) In which the value, quantity, and specifications of such transactions for a Requesting Party for any period of time shall be limited to the physical capability of the electricity transmission system operated by the Requesting Party for that period of time. e. ‘‘Day-Ahead Market’’ means an electricity market administered by a Requesting Party on which the price of electricity at a specified location is determined, in accordance with the Requesting Party’s Tariff, for specified time periods, none of which is later than the second operating day following the day on which the Day-Ahead Market clears. PO 00000 Frm 00031 Fmt 4701 Sfmt 4703 52167 f. ‘‘Real-Time Market’’ means an electricity market administered by a Requesting Party on which the price of electricity at a specified location is determined, in accordance with the Requesting Party’s tariff, for specified time periods within the same 24-hour period. g. ‘‘Requesting Party’’ means California Independent Service Operator Corporation (‘‘CAISO’’); ERCOT; ISO New England Inc. (‘‘ISO NE’’); Midwest Independent Transmission System Operator, Inc. (‘‘MISO’’); New York Independent System Operator, Inc. (‘‘NYISO’’) or PJM Interconnection, L.L.C. (‘‘PJM’’), or any successor in interest to any of the foregoing. h. ‘‘Tariff.’’ Reference to a Requesting Party’s ‘‘tariff’’ includes a tariff, rate schedule or protocol. i. ‘‘Petition’’ means the consolidated petition for an exemptive order under 4(c)(6) of the CEA filed by CAISO, ERCOT, ISO NE., MISO, NY ISO and PJM on February 7, 2012, as later amended. 6. Effective Date. This Order is effective immediately. This order is based upon the representations made in the consolidated petition for an exemptive order under 4(c) of the CEA filed by the Requesting Parties 407 and supporting materials provided to the Commission by the Requesting Parties and their counsel. Any material change or omission in the facts and circumstances pursuant to which this order is granted might require the Commission to reconsider its finding that the exemption contained therein is appropriate and/or in the public interest. Further, the Commission reserves the right, in its discretion, to revisit any of the terms and conditions of the relief provided herein, including but not limited to, making a determination that certain entities and transactions described herein should be subject to the Commission’s full 407 In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by California Independent Service Operator Corporation (‘‘CAISO’’); In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by the Electric Reliability Council of Texas, Inc. (‘‘ERCOT’’); In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by ISO New England Inc. (‘‘ISO NE’’); In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by Midwest Independent Transmission System Operator, Inc. (‘‘MISO’’); In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by New York Independent System Operator, Inc. (‘‘NYISO’’); and In the Matter of the Petition for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by PJM Interconnection, L.L.C. (‘‘PJM’’) (Feb. 7, 2012, as amended June 11, 2012). E:\FR\FM\28AUN2.SGM 28AUN2 52168 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices jurisdiction, and to condition, suspend, terminate or otherwise modify or restrict the exemption granted in this order, as appropriate, upon its own motion. IX. Related Matters A. Regulatory Flexibility Act The Regulatory Flexibility Act 408 (‘‘RFA’’) requires that agencies consider whether the Proposed Exemption will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact. The Commission believes that the Proposed Exemption will not have a significant economic impact on a substantial number of small entities. The Proposed Exemption detailed in this release would affect organizations including Petitioners and eligible contract participants (‘‘ECPs’’).409 The Commission has previously determined that ECPs are not ‘‘small entities’’ for purposes of the RFA.410 In addition, the Commission believes that Petitioners should not be considered small entities based on the central role they play in the operation of the electronic transmission grid and the creation of organized wholesale electric markets that are subject to FERC and PUCT regulatory oversight,411 analogous to 408 5 U.S.C. 601 et seq. CEA section 2(e), only ECPs are permitted to participate in a swap subject to the end-user clearing exception. 410 See Opting Out of Segregation, 66 FR 20740 at 20743, Apr. 25, 2001. 411 See RFA analysis as conducted by FERC regarding the 5 Petitioners, CAISO, NYISO, PJM, MISO and ISO NE., https://www.federalregister.gov/ articles/2011/10/26/2011-27626/enhancement-ofelectricity-market-surveillance-and-analysisthrough-ongoing-electronic-delivery-of#h-17. Commission staff also performed an independent RFA analysis based on Subsector 221 of Sector 22 (utilities companies) which defines any small utility corporation as one that does not generate more than 4 million of megawatts of electricity per year, and Subsector 523 of Sector 52 (Securities, Commodity Contracts, and Other Financial Investments and Related Activities) of the SBA, 13 CFR 121.201 (1–1–11 Edition), which identifies a small business size standard of $7 million or less in annual receipts. Staff concludes that none of the Petitioners is a small entity, based on the following information: MISO reports 594 million megawatt hours per year, https://www.midwestiso.org/Library/ Repository/Communication%20Material/Corporate/ Corporate%20Fact%20Sheet.pdf; ERCOT reports 335 million megawatt hours per year, http://www.ercot.com/content/news/ presentations/2012/ ERCOT_Quick_Facts_June_%202012.pdf; CAISO reports 200 million megawatts per year, http://www.caiso.com/Documents/ CompanyInformation_Facts.pdf; NYISO reports 17 million megawatts per month, which calculates to 204 megawatts per year, http:// www.nyiso.com/public/about_nyiso/ nyisoataglance/index.jsp; PJM reports $35.9 billion billed in 2011, http:// pjm.com/markets-and-operations.aspx; and srobinson on DSK4SPTVN1PROD with NOTICES2 409 Under VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 functions performed by DCMs and DCOs, which the Commission has determined not to be small entities.412 Accordingly, the Commission does not expect the Proposed Exemption to have a significant impact on a substantial number of entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the Proposed Exemption would not have a significant economic impact on a substantial number of small entities. The Commission invites the public to comment on whether the entities covered by this Proposed Exemption should be considered small entities for purposes of the RFA, and, if so, whether there is a significant impact on a substantial number of entities. B. Paperwork Reduction Act The purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. (‘‘PRA’’) are, among other things, to minimize the paperwork burden to the private sector, ensure that any collection of information by a government agency is put to the greatest possible uses, and minimize duplicative information collections across the government. The PRA applies to all information, ‘‘regardless of form or format,’’ whenever the government is ‘‘obtaining, causing to be obtained [or] soliciting’’ information, and includes requires ‘‘disclosure to third parties or the public, of facts or opinions,’’ when the information collection calls for ‘‘answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons.’’ The PRA would not apply in this case given that the exemption would not impose any new recordkeeping or information collection requirements, or other collections of information on ten or more persons that require approval of the Office of Management and Budget (‘‘OMB’’). ISO NE reports 32,798 gigawatt hours in the first quarter of 2011, which translates into almost 33 million megawatts for the first quarter of 2011, http://www.iso-ne.com/markets/mkt_anlys_rpts/ qtrly_mktops_rpts/2012/ imm_q1_2012_qmr_final.pdf. 412 See A New Regulatory Framework for Clearing Organizations, 66 FR 45604, 45609, Aug. 29, 2001(DCOs); Policy Statement and Establishment of Definitions of ‘‘Small Entities’’ for Purposes of the Regulatory Flexibility Act, 47 FR 18618, 18618– 18619, Apr. 30, 1982 (DCMs). PO 00000 Frm 00032 Fmt 4701 Sfmt 4703 C. Cost-Benefit Considerations 1. Consideration of Costs and Benefits a. Introduction Section 15(a) of the CEA 413 requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders. In proposing this exemption, the Commission is required by section 4(c)(6) to ensure the same is consistent with the public interest. In much the same way, section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors. As discussed above, in response to a Petition from certain regional transmission organizations and independent system operators, the Commission is proposing to exempt specified transactions from the provisions of the CEA and Commission regulations with the exception of those prohibiting fraud and manipulation (i.e., sections 2(a)(1)(B), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9 and 13 and any implementing regulations promulgated thereunder including, but not limited to, Commission regulations 23.410(a) and (b), 32.4 and part 180). The Proposed Exemption is transaction-specific—that is, it would exempt contracts, agreements and transactions for the purchase or sale of the limited set of electricity-related products that are offered or entered into in a market administered by a Petitioner pursuant to that Petitioner’s tariff or protocol for the purposes of allocating such Petitioner’s physical resources. More specifically, the Commission is proposing to exempt from most provisions of the CEA certain ‘‘financial transmission rights,’’ ‘‘energy transactions,’’ ‘‘forward capacity transactions,’’ and ‘‘reserve or regulation transactions,’’ as those terms are defined in the proposed Order, if such transactions are offered or entered into pursuant to a tariff under which a Petitioner operates that has been approved by FERC or the Public Utility 413 7 E:\FR\FM\28AUN2.SGM U.S.C. 19(a). 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES2 Commission of Texas, as applicable. The Proposed Exemption extends to any persons (including Petitioners, their members and their market participants) offering, entering into, rendering advice, or rendering other services with respect to such transactions. Important to the Commission’s Proposed Exemption is the Petitioners’ representations that the aforementioned transactions are: (i) Tied to the physical capacity of the Petitioner’s electricity grids; (ii) used to promote the reliable delivery of electricity; and (iii) are intended for use by commercial participants that are in the business of generating, transmitting and distributing electricity. In other words, these are not purely financial transactions; rather, they are inextricably linked to, and limited by, the capacity of the grid to physically deliver electricity. In the discussion that follows, the Commission considers the costs and benefits of the proposed Order to the public and market participants generally, including the costs and benefits of the conditions precedent that must be satisfied before a Petitioner may claim the exemption. b. Proposed Baseline The Commission’s proposed baseline for consideration of the costs and benefits of this Proposed Exemption are the costs and benefits that the public and market participants (including Petitioners) would experience in the absence of this proposed regulatory action. In other words, the proposed baseline is an alternative situation in which the Commission takes no action, meaning that the transactions that are the subject of this Petition would be required to comply with all of the CEA and Commission regulations, as may be applicable. In such a scenario, the public and market participants would experience the full benefits and costs related to the CEA and Commission regulations, but as discussed in detail above, the transactions would still be subject to the congruent regulatory regimes of the FERC and PUCT. In areas where the Commission believed additional requirements were necessary to ensure the public interest, the Commission proposed additional requirements (e.g., the requirement that Petitioners submit a memorandum or opinion of counsel to the Commission confirming the enforceability of the Petitioners’ netting arrangements in the event of a bankruptcy of a participant). The Commission also considers the regulatory landscape as it exists outside the context of the Dodd-Frank Act’s enactment. Here too, it is important to highlight Petitioners’ representations VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 that each of the transactions for which an exemption is requested is already subject to a long-standing, comprehensive regulatory framework for the offer and sale of such transactions established by FERC, or in the case of ERCOT, the PUCT. For example, the costs and benefits attendant to the Commission’s condition that transactions be entered into between ‘‘appropriate persons’’ as described in CEA section 4(c)(3) has an analog outside the context of the DoddFrank Act in FERC’s minimum criteria for RTO market participants as set forth in FERC Order 741. In the discussion that follows, where reasonably feasible, the Commission endeavors to estimate quantifiable dollar costs of the Proposed Exemption. The benefits of the Proposed Exemption, as well as certain costs, however, are not presently susceptible to meaningful quantification. Most of the costs arise from limitations on the scope of the proposed Order, and many of the benefits arise from avoiding defaults and their implications that are clearly large in magnitude, but impracticable to estimate. Where it is unable to quantify, the Commission discusses proposed costs and benefits in qualitative terms. c. Costs The Proposed Order is exemptive and would provide potentially eligible transactions with relief from the requirements of the CEA and attendant Commission regulations. As with any exemptive rule or order, the proposal is permissive, meaning that Petitioners were not required to request it and are not required to rely on it. Accordingly, the Commission assumes that Petitioners required and would rely on the Proposed Exemption only if the anticipated benefits warrant the costs of the same. Here, the Proposed Exemption identifies certain conditions precedent to the grant of the Proposed Exemption. The Commission is of the view that, as a result of the conditions, Petitioners, market participants and the public would experience minimal, if any, ongoing, incremental costs as a result of these conditions. This is so because, as Petitioners certify pursuant to CFTC Rule 140.99(c)(3)(ii), the attendant conditions are substantially similar to requirements that Petitioners and their market participants already incur in complying with FERC or PUCT regulation. The first condition—that all parties to the agreements, contracts or transactions that are covered by the Proposed Exemption must be either ‘‘appropriate persons,’’ as such term is defined in sections 4(c)(3)(A) through (J) of the Act, PO 00000 Frm 00033 Fmt 4701 Sfmt 4703 52169 or ‘‘eligible contract participants,’’ as such term is defined in section 1a(18)(A) of the Act and in Commission regulation 1.3(m)—should not impose any significant, incremental costs because Petitioners must already incur costs in complying with their existing legal and regulatory obligations under the FPA and FERC or PUCT regulations, which mandate that only eligible market participants may engage in the transactions that are the subject of this proposal, as explained in section V.B.3. above. The second is that the agreements, contracts or transactions that are covered by the Proposed Exemption must be offered or sold pursuant to a Petitioner’s tariff, which has been approved or permitted to take effect by: (1) In the case of ERCOT, the PUCT or; (2) in the case of all other Petitioners, FERC. This is a statutory requirement for the exemption. See CEA 4(c)(6)(A), (B). Moreover, requiring that Petitioners’ not operate outside their tariff requirements derives from existing legal requirements and is not a cost attributable to this proposal. Third, as described in section V.B.1. above, FERC and PUCT impose on their respective Petitioners, and their market monitors, various information management requirements. These existing requirements are not materially different from the condition that none of a Petitioner’s tariffs or other governing documents may include any requirement that the Petitioner notify a member prior to providing information to the Commission in response to a subpoena or other request for information or documentation. However, certain existing tariffs (see footnote 406 and accompanying text) may not currently meet the condition; therefore the Commission requests comment as to whether this condition imposes a significant burden or increase in cost on Petitioners with such tariffs, and whether there are alternative conditions that may be used to achieve a similar result. Further, Petitioners have agreed to provide any information to the Commission upon request that will further enable the Commission to perform its regulatory and enforcement duties. While the Commission is mindful that the process of responding to subpoenas or requests for information involves costs, such subpoenas and requests for information, and thus the associated costs, are independent of the current proposed Order. Fourth, information sharing arrangements that are satisfactory to the Commission between the Commission and FERC, and the Commission and PUCT, must be in full force and effect E:\FR\FM\28AUN2.SGM 28AUN2 srobinson on DSK4SPTVN1PROD with NOTICES2 52170 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices is not a cost to Petitioners or to other members of the public but, in the case of FERC, has been an inter-agency norm since 2005. Moreover, and with respect to the proposed condition that would require the Commission and PUCT to enter into an information sharing arrangement, the sharing of information between government agencies is an efficient means of reducing governmental costs. Finally, the Commission is proposing to require, as a prerequisite to the granting of the 4(c)(6) request to a particular Petitioner, that the Petitioner provide the Commission with a legal opinion or memoranda of counsel that provides the Commission with assurance that the approach selected by the Petitioner to satisfy the obligations contained in FERC regulation 35.47(d) will provide the Petitioner with enforceable rights of setoff against any of its market participants under title 11 of the United States Code in the event of the bankruptcy of the market participant. For instance, for transactions in a DCO context, the DCO is clearly the central counterparty. In the case of most ISOs and RTOs, there has been some ambiguity in this regard. As a result of this ambiguity, in the event of the bankruptcy of a participant, there is a concern that ISOs and RTOs may be liable to pay a bankrupt participant for transactions in which that participant is owed funds, without the ability to net amounts owed by the market participant in a bankruptcy, despite the fact that the tariffs submitted by the Petitioners to FERC include explicit language permitting set-off and netting.414 As FERC expressed in the FERC Credit Rulemaking and the FERC Order on Rehearing, there is a risk that the explicit tariff language may be insufficient to protect the Petitioners in bankruptcy, and even if this risk were to be at a low probability of manifestation, there would be a high cost to market participants and the stability of the markets if it did so.415 The Commission would require that the opinions or memoranda would be addressed to the Commission and would be signed on behalf of the law firm that is issuing the opinion, rather than by specific partners and/or associates. The Commission also would require the text of the opinion or memoranda to satisfy certain enumerated criteria. Based on the Laffey Matrix for 2012, assuming the opinion 414 See, e.g., In re Semcrude, 399 B.R. 388, 393 (Bank. D. Del. 2009) (stating that ‘‘debts are considered ‘mutual’ only when ‘they are due to and from the same persons in the same capacity.’ ’’). 415 See 75 FR at 65955. VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 is prepared by a seasoned attorney (with 20 plus years of legal practice), his/her hourly rate ($734 per hour) multiplied by the amount of hours taken to prepare the opinion, will be the basic cost of such an opinion.416 The Commission estimates that the cost of such memoranda will range between $15,000 and $30,000, part of which depends on the complexity of the analysis necessary to support the conclusion that the Petitioner’s setoff rights are enforceable, and assuming that the opinion will take 20–40 hours to prepare.417 d. Benefits In proposing this exemption, the Commission is required by section 4(c)(6) to ensure the same is consistent with the public interest. In much the same way, CEA section 15(a) requires that the Commission consider the benefits to the public of its action. In meeting its public interest obligations under both 4(c)(6) and 15(a), the Commission in sections V.B.1. and V.D. proposes a detailed consideration of the nature of the transactions and FERC and PUCT regulatory regimes, including whether the protections provided by those regimes are, at a minimum, congruent with the Commission’s oversight of DCOs and SEFs. This exercise is not rote; rather, in proposing that this exemption is in the public interest, the Commission’s comprehensive action benefits the public and market participants in several substantive ways, as discussed below. In addition, by considering a single application from all Petitioners at the same time, and proposing to allow all provisions of the exemption to apply to all Petitioners and their respective market participants with respect to each category of electricity-related products described in the Petition, regardless of whether such products are offered or entered into at the current time pursuant to an individual Petitioner’s tariff, this proposal provides a costmitigating, procedural efficiency. The Commission’s proposal also reduces the potential need for future amendments to the final exemption in order for one Petitioner to offer or enter into the same type of transactions currently offered by another. 416 The Court in Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354, 371 (D.D.C. 1983) ruled that hourly rates for attorneys practicing civil law in the Washington, DC metropolitan area could be categorized by years in practice and adjusted yearly for inflation. For 2012 Laffey Matrix rates, see http://www.justice.gov/usao/dc/divisions/ civil_Laffey_Matrix_2003-2012.pdf. 417 There are possibilities of economies of scale if multiple Petitioners share the same counsel in preparing these memoranda or opinions. PO 00000 Frm 00034 Fmt 4701 Sfmt 4703 In more substantive terms, by requiring that the transactions at issue are, in fact, limited to those that are administered by the petitioning RTOs/ ISOs, and are inextricably linked to the organized wholesale electricity markets that are subject to FERC and PUCT regulation and oversight, the Commission limits the scope of the proposed relief. In so doing, the proposal minimizes the potential that purely financial risk can accumulate outside the comprehensive regime for swaps regulation established by Congress in the Dodd-Frank Act and implemented by the Commission. The mitigation of such risk inures to the benefit of Petitioners, market participants and the public, especially Petitioners’ members and electricity ratepayers. The condition that only ‘‘appropriate persons’’ may enter the transactions that are the subject of this proposal benefits the public and market participants by ensuring that (1) only persons with resources sufficient to understand and manage the risks of the transactions are permitted to engage in the same, and (2) persons without such resources do not impose credit costs on other participants (and the ratepayers for such other participants). Further, the condition requiring that the transactions only be offered or sold pursuant to a FERC or PUCT tariff benefits the public by, for example, ensuring that the transactions are subject to a regulatory regime that is focused on the physical provision of reliable electric power, and also has credit requirements that are designed to achieve risk management goals congruent with the regulatory objectives of the Commission’s DCO Core Principles. Absent these and other similar limitations on participant- and financial-eligibility, the integrity of the markets at issue could be compromised and members and ratepayers left unprotected from potentially significant losses. Moreover, the Commission’s requirement that Petitioner’s file an opinion of counsel regarding the right of set-off in bankruptcy provides a benefit in that the analytical process necessary to formulate such an opinion would highlights risks faced by the Petitioners, and permit them to adapt their structure and procedures in a manner best calculated to mitigate such risks, and thus helps ensure the orderly handling of financial affairs in the event a participant fails as a result of these transactions. Finally, the Commission’s retention of its authority to redress any fraud or manipulation in connection with the transactions at issue protects market participants and the public generally, as E:\FR\FM\28AUN2.SGM 28AUN2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices well as the financial markets for electricity products. For example, a condition precedent to the Proposed Exemption is effective information sharing arrangements between the FERC and the Commission, and PUCT and the Commission. Through such an arrangement, the Commission expects that it will be able to request information necessary to examine whether activity on Petitioners’ markets is adversely affecting the Commission regulated markets. Further, the condition precedent that Petitioners not notify a member prior to providing the Commission with information will help maximize the effectiveness of the Commission’s enforcement program. e. Costs and Benefits as Compared to Alternatives The Commission considered alternatives to the proposed rulemaking. For instance, the Commission could have chosen: (i) Not to propose an exemption or (ii), as Petitioners’ requested, to provide relief for srobinson on DSK4SPTVN1PROD with NOTICES2 ‘‘the purchase and sale of a product or service that is directly related to, and a logical outgrowth of, any [of Petitioners’] core functions as an ISO/ RTO * * * and all services related thereto.’’ Regarding this latter request, the Commission understands the Petition as requesting relief for transactions not yet in existence. In this Order, the Commission proposes what it considers a measured approach—in terms of the implicated costs and benefits of the exemption—given its current understanding of transactions at issue. Regarding the first alternative, the Commission considered that Congress, in the Dodd-Frank Act, required the Commission to exempt certain contracts, agreements or transactions from duties otherwise required by statute or Commission regulation by adding a new section that permits the Commission to exempt from its regulatory oversight agreements, contracts, or transactions traded pursuant to an RTO or ISO tariff that has been approved or permitted to take effect by FERC or a State regulatory authority, as applicable, where such exemption was in the public interest and consistent with the purposes of the CEA. Having concluded that the instant exemption meets those tests, the Commission proposes that a no exemption alternative would be inconsistent with Congressional intent and contrary to the public interest. At the same time, however, the Commission believes it would also be VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 inappropriate to adopt the second alternative. The second alternative would extend the Proposed Exemption to all ‘‘logical outgrowths’’ of the transactions at issue. The Commission proposes that such an exemption would be contrary to the Commission’s obligation under section 4(c) of the Act. As noted above, the authority to issue an exemption from the CEA provided by section 4(c) of the Act may not be automatically or mechanically exercised. Rather, the Commission is required to affirmatively determine, inter alia, that the exemption would be consistent with the public interest and the purposes of the Act. With respect to the four groups of transactions detailed in the Proposed Exemption, the Commission’s finding that the Proposed Exemption would be in the public interest and would be consistent with the purposes of the CEA is grounded, in part, on known transaction characteristics and market circumstances described in the Petition that may or may not be shared by other, as yet undefined, transactions engaged in by the Petitioners or other RTO or ISO market participants. Similarly, unidentified transactions might include novel features or have market implications or risks that are beyond evaluation at the present time, and are not present in the specified transactions. 2. Consideration of CEA Section 15(a) Factors with respect to the Proposed Order a. Protection of Market Participants and the Public In proposing the exemption as it did, the Commission endeavored to provide relief that was in the public interest. A key component of that consideration is the assessment of how the Proposed Exemption protects market participants and the public. As discussed above, market participants and the public are protected by the existing regulatory structure that includes congruent regulatory goals, and by the four conditions placed upon the proposed relief by requiring, inter alia, that: (i) Only those with the financial wherewithal are permitted to engage in the transactions; (ii) the transactions at issue must be within the scope of a Petitioner’s FERC or PUCT tariff; (iii) no advance notice to members of information requests to Petitioners from the Commission; and (iv) the Commission and FERC, and PUCT and the Commission, must have an information sharing arrangement in full force and effect. Additionally, the requirement that Petitioners file and opinion of counsel regarding PO 00000 Frm 00035 Fmt 4701 Sfmt 4703 52171 bankruptcy matters provides additional information from which the Commission may be assured that the netting that Petitioners rely upon as an integral part of their risk management is in fact enforceable. b. Efficiency, Competitiveness, and Financial Integrity of Futures Markets To the extent that the transactions at issue could have an indirect effect on the efficiency, competitiveness, and financial integrity of the markets subject to the Commission’s jurisdiction, the relief is tailored in such a way as to mitigate any such effects. More specifically, the Proposed Exemption is limited to the transactions identified and defined herein. In this way, the Commission eliminates the potential that as-yet-unknown transactions not linked to the physicality of the electric system may be offered or sold under this Proposed Exemption. Further, the Commission’s retention of its full enforcement authority will help ensure that any misconduct in connection with the exempted transactions does not jeopardize the financial integrity of the markets under the Commission’s jurisdiction. c. Price Discovery As discussed above in section V.B.4, with respect to FTRs, Forward Capacity Transactions, and Reserve or Regulation Transactions, these transactions do not directly impact on transactions taking place on Commission regulated markets—they are not used for price discovery and are not used as settlement prices for other transactions in Commission regulated markets With respect to Energy Transactions, these transactions do have a relationship to Commission regulated markets because they can serve as a source of settlement prices for other transactions within Commission jurisdiction. Granting the Proposed Exemption, however, does not mean that these transactions will be unregulated. To the contrary, as explained in more detail above, Petitioners have market monitoring systems in place to detect and deter manipulation that takes place on their markets. Further, as noted above, the Commission retains all of its anti-fraud and anti-manipulation authority as a condition of the Proposed Exemption. d. Sound Risk Management Practices As with the other areas of cost-benefit consideration, the Commission’s evaluation of sound risk management practices occurs throughout this release, notably in sections V.D.4.a. and V.E.7.a. which consider the Petitioners’ risk E:\FR\FM\28AUN2.SGM 28AUN2 52172 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices management policies and procedures, and the related requirements of FERC and PUCT (in particular, FERC Order 741 on Credit Policies), in light of the Commission’s risk management requirements for DCOs and SEFs. e. Other Public Interest Considerations The Commission proposes that because these transactions are part of, and inextricably linked to, the organized wholesale, physical electricity markets that are subject to regulation and oversight of FERC or PUCT, as applicable, the Commission’s Proposed Exemption, with its attendant conditions, requirements, and limitations, is in the public interest. In so considering, the Commission proposes that the public interest is best served if the Commission dedicates its resources to the day-to-day oversight of its registrants and the financial markets subject to the CEA. srobinson on DSK4SPTVN1PROD with NOTICES2 3. Request for Public Comment on Costs and Benefits The Commission invites public comment on its cost-benefit considerations and dollar cost estimates, including the consideration of reasonable alternatives. Commenters are invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters. X. Request for Comment The Commission requests comment on all aspects of its Proposed Exemption. In addition, the Commission specifically requests comment on the specific provisions and issues highlighted in the discussion above and on the issues presented in this section. For each comment submitted, please provide a detailed rationale supporting the response. 1. Has the Commission used the appropriate standard in analyzing whether the Proposed Exemption is in the public interest? 2. The Commission recognizes that there may be differences among the Petitioners with respect to size, scope of business, and underlying regulatory framework. Should any provisions of the Proposed Exemption be modified or adjusted, or should any conditions be added, to reflect such differences? 3. Is the scope set forth for the Proposed Exemption sufficient to allow for innovation? Why or why not? If not, how should the scope be modified to allow for innovation without exempting products that may be materially different from those reviewed by the Commission? Should the Commission VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 exempt such products without considering whether such exemption is in the public interest? Consider this question also with the understanding that any Petitioner (or any entity that is not a current petitioner) may separately petition the Commission for an amendment of any final order granted in this matter. 4. Should the Commission exercise its authority pursuant to section 4(c)(3)(K) of the CEA to extend the Proposed Exemption to agreements contracts or transactions that are entered into by parties other than ‘‘appropriate persons’’ as defined in sections 4(c)(3)(A) through (J) of the CEA, or ‘‘eligible contract participants,’’ as defined in section 1a(18)(A) or (B) of the Act and Commission regulation 1.3(m)? If so, please provide a description of the additional parties that should be included. a. The Commission specifically seeks comment regarding whether (and, if so, why) it is in the public interest to expand the list of such parties to include market participants who ‘‘active[ly] participat[e] in the generation, transmission or distribution of electricity’’ but who are neither ‘‘appropriate persons,’’ as defined in section 4(c)(3)(A) through (J) of the CEA, nor ‘‘eligible contract participants,’’ as defined in section 1a(18)(A) of the Act and Commission regulation 1.3(m)? b. If any additional parties should be added, please provide: (1) An explanation of the financial or other qualifications of such persons or the available regulatory protections that would render such persons ‘‘appropriate persons.’’ (2) The basis for the conclusion that such parties could bear the financial risks of the agreements, contracts, and transactions to be exempted by the Proposed Exemption. (3) The basis for the conclusion that including such parties would not have any adverse effect on the relevant RTO or ISO. (4) The basis for the conclusion that failing to include such parties would have an adverse effect on any relevant RTO or ISO. 5. Should the Commission require each Petitioner that is regulated by FERC to have fully implemented the requirements set forth in FERC Order 741 as a condition precedent to the issuance of a final order granting the Proposed Exemption to the particular Petitioner? Why or why not? 6. Should ERCOT be required to comply with the requirements set forth in FERC Order 741 as a prerequisite to the issuance to ERCOT of a final order PO 00000 Frm 00036 Fmt 4701 Sfmt 4703 granting the Proposed Exemption as to ERCOT? Why or why not? a. The Commission specifically seeks comment upon whether and why ERCOT would or would not be able to comply with each of the requirements set forth in FERC Order 741. Are any of these requirements inapplicable for an RTO/ISO? b. Should ERCOT be permitted to adopt alternatives to any of the specific requirements set forth in FERC Order 741 (such as the seven day settlement period in FERC regulation 35.47(b))? What is the basis for the conclusion that the alternative measures would be the equivalents of the FERC requirements in terms of protecting the financial integrity of the transactions that are within the scope of the exemption? 7. Should the Commission require, as a prerequisite to issuing a final order granting the Proposed Exemption to a particular Petitioner, that the Commission be provided with a legal opinion or memoranda of counsel, applicable to the tariffs and operations of that Petitioner, that provides the Commission with assurance that the approach selected by the Petitioner to satisfy the obligations contained in FERC regulation 35.47(d) will provide the Petitioner with rights of setoff, enforceable against any of its market participants under title 11 of the United States Code in the event of the bankruptcy of the market participant? Why or why not? Are there alternative ways to provide the requisite assurance regarding the bankruptcy protections provided by the approach to 35.47(d) compliance selected by Petitioners and the requisite assurance that the central counterparty structure selected by Petitioners will be consistent or contain elements commonly associated with central counterparties? 8. Should the Commission require the execution of an acceptable information sharing arrangement between the Commission and PUCT as a condition precedent to the issuance to ERCOT of a final order granting the request for an exemption? 9. Should the Proposed Exemption be conditioned upon the requirement that the Petitioners cooperate with the Commission in its conduct of special calls/further requests for information with respect to contracts, agreements or transactions that are, or are related to, the contracts, agreements, or transactions that are the subject of the Proposed Exemption? 10. Should Petitioners be required to have the ability to obtain market data and other related information from their participants with respect to contracts, agreements or transactions in markets E:\FR\FM\28AUN2.SGM 28AUN2 srobinson on DSK4SPTVN1PROD with NOTICES2 Federal Register / Vol. 77, No. 167 / Tuesday, August 28, 2012 / Notices for, or related to, the contracts, agreements or transactions that are the subject of the Proposed Exemption? The Commission specifically seeks comment on whether the Petitioners should capable of re-creating the Day-Ahead Market and Real-Time prices. 11. What is the basis for the conclusion that Petitioners do, or do not, provide to the public sufficient timely information on price, trading volume, and other data with respect to the markets for the contracts, agreements and transactions that are the subject of the Proposed Exemption? What RTO or ISO tariff provisions, if any, require them to do so or preclude them from doing so? 12. What is the basis for the conclusion that the Proposed Exemption will, or will not, have any material adverse effect on the Commission’s ability to discharge its regulatory duties under the CEA, or on any contract market’s ability to discharge its selfregulatory duties under the CEA? 13. What are the bases for the conclusions that the Petitioners’ tariffs, practices, and procedures do, or do not, appropriately address the regulatory goals of each of the DCO Core Principles? 14. What factors support, or detract from, the Commission’s preliminary conclusion that FTRs, Energy Transactions, Capacity and Reserve Transactions are not readily susceptible to manipulation for the reasons stated above? Could a market participant use an FTR to manipulate the price of electricity established on the Day-Ahead and Real-Time markets operated by Petitioners? If so, what is the basis for that conclusion? What is the basis for the conclusion that market participants can, or cannot, use Energy Transactions, Capacity or Reserve Transactions to manipulate electricity prices without detection by Independent Market Monitors? 15. What is the basis for the conclusion that Petitioners have, or have not, satisfied applicable market monitoring requirements with respect to FTRs, Energy Transactions, Capacity and Reserve Transactions? What is the basis for the conclusion that the recordkeeping functions performed by Petitioners are, or are not, appropriate to address any concerns raised by the market monitoring process? What is the basis for the conclusion that the market monitoring functions performed by Petitioners and their MMUs do, or do not, provide adequate safeguards to prevent the manipulation of Petitioners’ markets? 16. What is the basis for the conclusion that Petitioners, or their VerDate Mar<15>2010 17:24 Aug 27, 2012 Jkt 226001 participants, should, or should not, be required to satisfy position limit requirements with respect to any of the contracts, agreements or transactions that are the subject of the Proposed Exemption? Specifically, what is the basis for the conclusion that it is, or is not, possible for Petitioners, or their participants, to violate position limits with FTRs or Virtual Bids? What is the basis for the conclusion that the nature of FTRs or Virtual Bids do, or do not, inherently limit the ability of market participants to engage in manipulative conduct? 17. What are the bases for the conclusions that Petitioners do, or do not, adequately satisfy the SEF requirements for (a) recordkeeping and reporting, (b) preventing restraints on trade or imposing any material anticompetitive burden, (c) minimizing conflicts of interest, (d) providing adequate financial resources, (e) establishing system safeguards and (f) designating a CCO? Specifically, do the procedures and principles in place allow the Petitioners to meet the requirements of SEF core principles 10– 15? 18. What is the basis for the conclusion that the Petitioners’ eligibility requirements for participants are, or are not, appropriate to ensure that market participants can adequately bear the risks associated with the Participants markets? 19. What is the basis for the conclusion that Petitioners do, or do not, have adequate rules in place to allow them to deal with emergency situations as they arise? What deficiencies, if any, Are there with respect to their emergency procedures that would prevent any Petitioner from taking necessary action to address sudden market problems? 20. The Commission invites comment on its consideration of the costs and benefits of the Proposed Exemption, including the costs of any information requirements imposed therein. The Commission also seeks comment on the costs and benefits of this Proposed Exemption, including, but not limited to, those costs and benefits specified within this proposal. Commenters are also are invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters. PO 00000 52173 Issued in Washington, DC on August 21, 2012, by the Commission. Sauntia S. Warfield, Assistant Secretary of the Commission. Notice of Proposed Order and Request for Comment on a Petition From Certain Independent System Operators and Regional Transmission Organizations To Exempt Specified Transactions Authorized by a Tariff or Protocol Approved by the Federal Energy Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in Section 4(c)(6) of the Act— Commission Voting Summary and Statements of Commissioners Note: The following appendices will not appear in the Code of Federal Regulations. Appendix 1—Commission Voting Summary On this matter, Chairman Gensler and Commissioners Sommers, Chilton, O’Malia and Wetjen voted in the affirmative; no Commissioner voted in the negative. Appendix 2—Statement of Chairman Gary Gensler I support the proposed relief from the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) swaps provisions for certain electricityrelated transactions entered into on markets administered by regional transmission organizations (RTOs) or independent system operators (ISOs). The relief responds to a petition filed by a group of RTOs and ISOs. Congress directed the CFTC, when it is in the public interest, to provide relief from the Dodd-Frank Act’s swaps market reform provisions for certain transactions on markets administered by RTOs and ISOs. These entities were established for the purpose of providing affordable, reliable electricity to consumers within their geographic region. They are subject to extensive regulatory oversight by the Federal Energy Regulatory Commission (FERC), or in one instance, by the Public Utility Commission of Texas (PUCT). In addition, these markets administered by RTOs and ISOs are central to FERC and PUCT’s regulatory missions to oversee wholesale sales and transmission of electricity. The scope of the proposed relief extends to the petitioners for four categories of transactions—financial transmission rights, energy transactions, forward capacity transactions, and reserve or regulation transactions. Each of these transactions are inextricably linked to the physical delivery of electricity. I look forward to receiving public comment on the proposed relief. [FR Doc. 2012–20965 Filed 8–27–12; 8:45 am] BILLING CODE P Frm 00037 Fmt 4701 Sfmt 9990 E:\FR\FM\28AUN2.SGM 28AUN2

Agencies

[Federal Register Volume 77, Number 167 (Tuesday, August 28, 2012)]
[Notices]
[Pages 52137-52173]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20965]



[[Page 52137]]

Vol. 77

Tuesday,

No. 167

August 28, 2012

Part II





Commodity Futures Trading Commission





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Proposed Order and Request for Comment on a Petition From Certain 
Independent System Operators and Regional Transmission Organizations To 
Exempt Specified Transactions Authorized by a Tariff or Protocol 
Approved by the Federal Energy Commission or the Public Utility 
Commission of Texas From Certain Provisions of the Commodity Exchange 
Act; Notice

Federal Register / Vol. 77 , No. 167 / Tuesday, August 28, 2012 / 
Notices

[[Page 52138]]


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COMMODITY FUTURES TRADING COMMISSION


Proposed Order and Request for Comment on a Petition From Certain 
Independent System Operators and Regional Transmission Organizations To 
Exempt Specified Transactions Authorized by a Tariff or Protocol 
Approved by the Federal Energy Commission or the Public Utility 
Commission of Texas From Certain Provisions of the Commodity Exchange 
Act

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of Proposed Order and Request for Comment.

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SUMMARY: The Commodity Futures Trading Commission (``CFTC'' or 
``Commission'') is requesting comment on a proposed exemption (the 
``Proposed Exemption'') issued in response to a consolidated petition 
(``Petition'') \1\ from certain regional transmission organizations 
(``RTOs'') and independent system operators (``ISOs'') (collectively, 
``Petitioners'') to exempt specified transactions from the provisions 
of the Commodity Exchange Act (``CEA'' or ``Act'') \2\ and Commission 
regulations. The Proposed Exemption would exempt the contracts, 
agreements and transactions for the purchase or sale of the limited 
electricity-related products that are specifically described within the 
proposed order from the provisions of the CEA and Commission 
regulations, with the exception of sections 2(a)(1)(B), 4b, 4c(b), 4o, 
4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9 and 13 of the 
Act and any implementing regulations promulgated thereunder including, 
but not limited to Commission regulations 23.410(a) and (b), 32.4 and 
part 180. To be eligible for the Proposed Exemption, the contract, 
agreement or transaction would be required to be offered or entered 
into in a market administered by a Petitioner pursuant to that 
Petitioner's tariff or protocol for the purposes of allocating such 
Petitioner's physical resources; the relevant tariff or protocol would 
be required to have been approved or permitted to have taken effect by 
either the Federal Energy Commission (``FERC'') or the Public Utility 
Commission of Texas (``PUCT''), as applicable; and the contract, 
agreement or transaction would be required to be entered into by 
persons who are ``appropriate persons,'' as defined in section 
4(c)(3)(A) through (J) of the Act \3\ or ``eligible contract 
participants,'' as defined in section 1a(18) of the Act and Commission 
regulations.\4\ The exemption as proposed also would extend to any 
person or class of persons offering, entering into, rendering advice or 
rendering other services with respect to such transactions. Finally, 
the exemption would be subject to other conditions set forth therein. 
Authority for issuing the exemption is found in section 4(c)(6) of the 
Act.\5\
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    \1\ In the Matter of the Petition for an Exemptive Order Under 
Section 4(c) of the Commodity Exchange Act by California Independent 
Service Operator Corporation; In the Matter of the Petition for an 
Exemptive Order Under Section 4(c) of the Commodity Exchange Act by 
the Electric Reliability Council of Texas, Inc.; In the matter of 
the Petition for an Exemptive Order Under Section 4(c) of the 
Commodity Exchange Act by ISO New England Inc.; In the Matter of the 
Petition for an Exemptive Order Under Section 4(c) of the Commodity 
Exchange Act by Midwest Independent Transmission System Operator, 
Inc.; In the Matter of the Petition for an Exemptive Order Under 
Section 4(c) of the Commodity Exchange Act by New York Independent 
System Operator, Inc.; and In the Matter of the Petition for an 
Exemptive Order Under Section 4(c) of the Commodity Exchange Act by 
PJM Interconnection, L.L.C. (Feb. 7, 2012, as amended June 11, 
2012).
    \2\ 7 U.S.C. 1 et seq.
    \3\ 7 U.S.C. 6(c)(3)(A)-(J).
    \4\ 7 U.S.C. 1a(18). ``Further Definition of `Swap Dealer,' 
`Security-Based Swap Dealer,' `Major Swap Participant,' `Major 
Security-Based Swap Participant' and `Eligible Contract 
Participant,' '' 77 FR 30596, May 23, 2012.
    \5\ 7 U.S.C. 6(c)(6).
---------------------------------------------------------------------------

    The Commission seeks comment on the Petition, the Proposed 
Exemption and related questions. A copy of the Petition requesting the 
exemption is available on the Commission's Web site at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/isorto4capplication.pdf, with Petition Attachments posted at 
http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/isorto4cappattach.pdf and an Order 741 Implementation 
Chart posted at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/isorto4cappfercchart.pdf.

DATES: Comments must be received on or before September 27, 2012.

ADDRESSES: You may submit comments by any of the following methods:
     The agency's Web site, at http://comments.cftc.gov. Follow 
the instructions for submitting comments through the Web site.
     Mail: David A. Stawick, Secretary of the Commission, 
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st 
Street NW., Washington, DC 20581.
     Hand Delivery/Courier: Same as mail above.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Please submit your comments using only one method.
    All comments must be submitted in English, or if not, accompanied 
by an English translation. Comments may be posted as received to http://www.cftc.gov. You should submit only information that you wish to make 
available publicly. If you wish the Commission to consider information 
that may be exempt from disclosure under the Freedom of Information 
Act, a petition for confidential treatment of the exempt information 
may be submitted according to the established procedures in CFTC 
Regulation 145.9 (17 CFR 145.9).
    The Commission reserves the right, but shall have no obligation, to 
review, pre-screen, filter, redact, refuse or remove any or all of your 
submission from www.cftc.gov that it may deem to be inappropriate for 
publication, such as obscene language. All submissions that have been 
redacted or removed that contain comments on the merits of the 
rulemaking will be retained in the public comment file and will be 
considered as required under the Administrative Procedure Act and other 
applicable laws, and may be accessible under the Freedom of Information 
Act.

FOR FURTHER INFORMATION CONTACT: Robert B. Wasserman, Chief Counsel, 
202-418-5092, rwasserman@cftc.gov, or Laura Astrada, Associate Chief 
Counsel, 202-418-7622, lastrada@cftc.gov, or Jocelyn Partridge, Special 
Counsel, 202-418-5926, jpartridge@cftc.gov, Division of Clearing and 
Intermediary Oversight; Eve Gutman, Attorney-Advisor, 202-418-5141, 
egutman@cftc.gov, Division of Market Oversight; Gloria P. Clement, 
Assistant General Counsel, 202-418-5122, gclement@cftc.gov or Thuy 
Dinh, Counsel, 202-418-5128, tdinh@cftc.gov, Office of the General 
Counsel; or Robert Pease, 202-418-5863, rpease@cftc.gov, Division of 
Enforcement; Commodity Futures Trading Commission, Three Lafayette 
Centre, 1151 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. The Petition
II. Statutory Background
III. Background--FERC and PUCT
    A. Introduction
    B. FERC
    C. PUCT
    D. FERC & PUCT Oversight
IV. Scope of the Exemption
    A. Transactions Subject to the Exemption
    B. Conditions
    C. Additional Limitations
V. Section 4(c) Analysis
    A. Overview of CEA Section 4(c)
    B. Proposed CEA Section 4(c) Determinations

[[Page 52139]]

    C. FERC Credit Reform Policy
    D. DCO Core Principle Analysis
    E. SEF Core Principle Analysis
VIII. Proposed Exemption
    A. Discussion of Proposed Exemption
    B. Proposed Exemption
IX. Related Matters
    A. Regulatory Flexibility Act
    B. Paperwork Reduction Act
    C. Cost-Benefit Considerations
X. Request for Comment

I. The Petition

    On February 7, 2012, Petitioners collectively filed a Petition with 
the Commission requesting that the Commission exercise its authority 
under section 4(c)(6) of the CEA \6\ and section 712(f) of the Dodd-
Frank Wall Street Reform and Consumer Protection Act (``Dodd-Frank 
Act'') \7\ to exempt contracts, agreements and transactions for the 
purchase or sale of specified electricity products, that are offered 
pursuant to a FERC- or PUCT-approved tariff, from most provisions of 
the Act.\8\ Petitioners include three RTOs (Midwest Independent 
Transmission System Operator Inc. (``MISO''); ISO New England, Inc. 
(``ISO NE''); and PJM Interconnection, L.L.C. (``PJM'')), and two ISOs 
(California Independent System Operator (``CAISO'') and New York 
Independent System Operator (``NYISO'')), whose central role as 
transmission utilities is subject to regulation by FERC; and the 
Electric Reliability Council of Texas, Inc. (``ERCOT''), an entity that 
performs the role of an ISO but whose central role as a transmission 
utility in the electric energy market is subject to regulation by PUCT, 
the authority with jurisdiction to regulate rates and charges for the 
sale of electric energy within the state of Texas.\9\ Petitioners 
represent that the roles, responsibilities and services of ISOs and 
RTOs are substantially similar.\10\ As described in greater detail 
below, FERC encouraged the formation of ISOs to consolidate and manage 
the operation of electricity transmission facilities in order to 
provide open, non-discriminatory transmission service for generators 
and transmission customers.\11\ FERC also encouraged the formation of 
RTOs to administer the transmission grid on a regional basis.\12\
---------------------------------------------------------------------------

    \6\ 7 U.S.C. 6(c)(6).
    \7\ See Dodd-Frank Act, Public Law 111-203, 124 Stat. 1376 
(2010). The text of the Dodd-Frank Act may be accessed at http://www.cftc.gov./LawRegulation/OTCDERIVATIVES/index.htm.
    \8\ See Petition at 2-3, 6.
    \9\ See Petition at 2-4. See 16 Tex. Admin. Code 25.1 (1998).
    \10\ See Petition at 2 n. 2.
    \11\ See FERC Order 888 Promoting Wholesale Competition Through 
Open Access Non-Discriminatory Transmission Facilities (``FERC Order 
888''), 61 FR 21540, April 24, 1996; See Petition at 2 n.2, 3.
    \12\ See Petition at 3.
---------------------------------------------------------------------------

    Petitioners specifically request that the Commission exempt from 
most provisions of the CEA certain ``financial transmission rights,'' 
``energy transactions,'' ``forward capacity transactions,'' and 
``reserve or regulation transactions,'' as those terms are defined in 
the Petition, if such transactions are offered or entered into pursuant 
to a tariff under which a Petitioner operates that has been approved by 
FERC or PUCT, as applicable, as well as any persons (including 
Petitioners, their members and their market participants) offering, 
entering into, rendering advice, or rendering other services with 
respect to such transactions.\13\ Petitioners assert that each of the 
transactions for which an exemption is requested is (a) subject to a 
long-standing, comprehensive regulatory framework for the offer and 
sale of such transactions established by FERC, or in the case of ERCOT, 
the PUCT, and (b) part of, and inextricably linked to, the organized 
wholesale electricity markets that are subject to regulation and 
oversight of FERC or PUCT, as applicable.\14\ Petitioners expressly 
exclude from the Petition a request for relief from sections 4b, 4o, 
6(c) and 9(a)(2) of the Act \15\ and such provisions explicitly have 
been carved out of the exemption that would be provided by the Proposed 
Exemption. Petitioners assert that they are seeking the requested 
exemption in order to provide greater legal certainty with respect to 
the regulatory requirements that apply to the transactions that are the 
subject of the Petition.\16\ Petitioners request that, due to the 
commonalities in the Petitioners' markets, the exemption apply to all 
Petitioners and their respective market participants with respect to 
each category of electricity-related products described in the 
Petition, regardless of whether such products are offered or entered 
into at the current time pursuant to an individual Petitioner's 
tariff.\17\ Petitioners' assert that this uniformity would avoid an 
individual Petitioner being required to seek future amendments to the 
exemption in order to offer or enter into the same type of transactions 
currently offered by another Petitioner.\18\
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    \13\ See id. at 2-3.
    \14\ See id. at 11.
    \15\ See id. at 3.
    \16\ See id. at 3, 5-6.
    \17\ See id. at 6.
    \18\ See id.
---------------------------------------------------------------------------

II. Statutory background

    On July 21, 2010, President Obama signed the Dodd-Frank Act. Title 
VII of the Dodd-Frank Act amended the CEA \19\ and altered the scope of 
the Commission's exclusive jurisdiction.\20\ In particular, it expanded 
the Commission's exclusive jurisdiction, which had included futures 
traded, executed and cleared on CFTC-regulated exchanges and 
clearinghouses, to also cover swaps traded, executed, or cleared on 
CFTC-regulated exchanges or clearinghouses.\21\ As a result, the 
Commission's exclusive jurisdiction now includes swaps as well as 
futures, and is clearly expressed in CEA section 2(a)(1)(A), which 
reads:
---------------------------------------------------------------------------

    \19\ 7 U.S.C. 1 et seq.
    \20\ Section 722(e) of the Dodd-Frank Act.
    \21\ See 7 U.S.C. 2(a)(1)(A). The Dodd-Frank Act also added 
section 2(h)(1)(A), which requires swaps to be cleared if required 
to be cleared and not subject to a clearing exception or exemption. 
See 7 U.S.C. 2(h)(1)(A).

    The Commission shall have exclusive jurisdiction, except to the 
extent otherwise provided in the Wall Street Transparency and 
Accountability Act of 2010 (including an amendment made by that Act) 
and subparagraphs (C), (D), and (I) of this paragraph and 
subsections (c) and (f), with respect to accounts, agreements 
(including any transaction which is of the character of * * * an 
``option''), and transactions involving swaps or contracts of sale 
of a commodity for future delivery (including significant price 
discovery contracts) traded or executed on a contract market * * * 
or a swap execution facility * * * or any other board of trade, 
---------------------------------------------------------------------------
exchange, or market * * *.\22\

    \22\ 7 U.S.C. 2(a)(1)(A).
---------------------------------------------------------------------------

    The Dodd-Frank Act also added a savings clause that addresses the 
roles of the Commission, FERC, and state agencies as they relate to 
certain agreements, contracts, or transactions traded pursuant to the 
tariff of an RTO and ISO.\23\ Toward that end, paragraph (I) of CEA 
section 2(a)(1) repeats the Commission's exclusive jurisdiction and 
clarifies that the Commission retains its authorities over agreements, 
contracts or transactions traded pursuant to FERC- or state-approved 
tariff or rate schedules.\24\ The same paragraph (I) also explains that 
the FERC and state agencies preserve their existing authorities over 
agreements, contracts, or transactions ``entered into pursuant to a 
tariff or rate schedule approved by [FERC] or a State regulatory 
agency,'' that are: ``(I) not ``executed, traded, or cleared on'' an 
entity or trading facility subject to registration or ``(II) executed, 
traded, or cleared on a registered entity

[[Page 52140]]

or trading facility owned or operated by a [RTO] or [ISO].'' \25\
---------------------------------------------------------------------------

    \23\ See 7 U.S.C. 2(a)(1)(I).
    \24\ See 7 U.S.C. 2(a)(1)(I)(i) and (ii).
    \25\ 7 U.S.C. 2(a)(1)(I)(i)(II). The savings clause in CEA 
section 2(a)(1)(I) provides that:
    (I)(i) Nothing in this Act shall limit or affect any statutory 
authority of the Federal Energy Regulatory Commission or a State 
regulatory authority (as defined in section 3(21) of the Federal 
Power Act (16 U.S.C. 796(21)) with respect to an agreement, 
contract, or transaction that is entered into pursuant to a tariff 
or rate schedule approved by the Federal Energy Regulatory 
Commission or a State regulatory authority and is--
    (I) Not executed, traded, or cleared on a registered entity or 
trading facility; or
    (II) Executed, traded, or cleared on a registered entity or 
trading facility owned or operated by a regional transmission 
organization or independent system operator.
    (ii) In addition to the authority of the Federal Energy 
Regulatory Commission or a State regulatory authority described in 
clause (i), nothing in this subparagraph shall limit or affect--
    (I) Any statutory authority of the Commission with respect to an 
agreement, contract, or transaction described in clause (i); or
    (II) The jurisdiction of the Commission under subparagraph (A) 
with respect to an agreement, contract, or transaction that is 
executed, traded, or cleared on a registered entity or trading 
facility that is not owned or operated by a regional transmission 
organization or independent system operator (as defined by sections 
3(27) and (28) of the Federal Power Act (16 U.S.C. 796(27), 
796(28)).
    In addition, Dodd-Frank Act section 722(g) (not codified in the 
United States Code) expressly states that FERC's pre-existing 
statutory enforcement authority is not limited or affected by 
amendments to the CEA. Section 722(g) states:
    (g) AUTHORITY OF FERC.--Nothing in the Wall Street Transparency 
and Accountability Act of 2010 or the amendments to the Commodity 
Exchange Act made by such Act shall limit or affect any statutory 
enforcement authority of the Federal Energy Regulatory Commission 
pursuant to section 222 of the Federal Power Act and section 4A of 
the Natural Gas Act that existed prior to the date of enactment of 
the Wall Street Transparency and Accountability Act of 2010.
---------------------------------------------------------------------------

    While the Dodd-Frank Act sets forth a clear statement of the 
Commission's exclusive jurisdiction and authorities as related to FERC 
and state regulatory authorities, the Dodd-Frank Act also granted the 
Commission specific powers to exempt certain contracts, agreements or 
transactions from duties otherwise required by statute or Commission 
regulation by adding a new section to the CEA, section 4(c)(6), that 
permits the Commission to exempt from its regulatory oversight, among 
other things, agreements, contracts, or transactions traded pursuant to 
an RTO or ISO tariff that has been approved or permitted to take effect 
by FERC or a State regulatory authority, as applicable.\26\ The 
Commission's charge, however, is not rote; the Commission must 
initially determine whether the exemption would be consistent with the 
public interest and the purposes of the CEA.\27\
---------------------------------------------------------------------------

    \26\ See 7 U.S.C. 6(c)(6).
    \27\ See 7 U.S.C. 6(c)(6)(A) and (B).
---------------------------------------------------------------------------

    The Commission must act ``in accordance with'' section 4(c)(1) and 
(2) of the CEA, when issuing an electricity exemption under section 
4(c)(6).\28\ Section 4(c)(1) authorizes the Commission, by rule, 
regulation, or order, to exempt any agreement, contract or transaction, 
or class thereof, from the exchange-trading requirements of section 
4(a) or any other requirements of the Act other than section 
2(a)(1)(C)(ii) and (D). The Commission may attach terms and conditions 
to any exemption it provides.
---------------------------------------------------------------------------

    \28\ Section 4(c) was added to the CEA by the Futures Trading 
Practices Act of 1992, Public Law 102-564. The Commission's 
authority under section 4(c) was explained by the Conferees:
    In granting exemptive authority to the Commission under new 
section 4(c), the Conferees recognize the need to create legal 
certainty for a number of existing categories of instruments which 
trade today outside of the forum of a designated contract market.
    The provision included in the Conference substitute is designed 
to give the Commission broad flexibility in addressing these 
products
    * * * * *
    In this respect, the Conferees expect and strongly encourage the 
Commission to use its new exemptive power promptly upon enactment of 
this legislation in four areas where significant concerns of legal 
uncertainty have arisen: (1) Hybrids, (2) swaps, (3) forwards, and 
(4) bank deposits and accounts.
    The Commission is not required to ascertain whether a particular 
transaction would fall within its jurisdiction prior to exercising 
its exemptive authority under section 4(c). The Conferees stated 
that they did:
    not intend that the exercise of exemptive authority by the 
Commission would require any determination before hand that the 
agreement, instrument, or transaction for which an exemption is 
sought is subject to the Act. Rather, this provision provides 
flexibility for the Commission to provide legal certainty to novel 
instruments where the determination as to jurisdiction is not 
straightforward * * *
    H.R. Rep. No. 978, 102d Cong. 2d Sess., (1992) at 82-83.
---------------------------------------------------------------------------

    Section 4(c)(2) of the CEA \29\ provides that the Commission may 
not approve an exemption from the execution requirements of the Act, as 
noted in section 4(a),\30\ unless the agreement, contract or 
transaction will be entered into solely between ``appropriate 
persons,'' as that term is defined in section 4(c)(3), which does not 
include retail customers (such as small businesses or individuals). In 
addition, the Commission must determine that the agreement, contract or 
transaction in question will not have a material adverse effect on the 
ability of the Commission or any contract market to discharge its 
regulatory or self-regulatory duties.\31\
---------------------------------------------------------------------------

    \29\ Section 4(c)(2), 7 U.S.C. 6(c)(2), states:
    The Commission shall not grant any exemption * * * from any of 
the requirements of subsection (a) unless the Commission determines 
that (A) the requirement should not be applied to the agreement, 
contract, or transaction for which the exemption is sought and that 
the exemption would be consistent with the public interest and the 
purposes of this Act; and (B) the agreement, contract, or 
transaction--
    (i) Will be entered into solely between appropriate persons; and
    (ii) Will not have a material adverse effect on the ability of 
the Commission or any contract market to discharge its regulatory or 
self-regulatory duties under this Act.
    \30\ 7 U.S.C. 6(a).
    \31\ See 7 U.S.C. 6(c)(2).
---------------------------------------------------------------------------

III. Background--FERC and PUCT

A. Introduction

    Each Petitioner is subject to regulation by FERC, with the 
exception of ERCOT, which is regulated by PUCT.\32\ Petitioners assert 
that the regulatory frameworks administered by FERC or PUCT, as 
applicable to each particular RTO or ISO market, would apply to the 
transactions for which an exemption has been requested.\33\
---------------------------------------------------------------------------

    \32\ See Petition at 4.
    \33\ See id. at 11.
---------------------------------------------------------------------------

B. FERC

    In 1920, Congress established the Federal Power Commission 
(``FPC'').\34\ The FPC was reorganized into FERC in 1977.\35\ FERC is 
an independent agency that regulates the interstate transmission of 
electricity, natural gas and oil.\36\ FERC's mission is to ``assist 
consumers in obtaining reliable, efficient and sustainable energy 
services at a reasonable cost through appropriate regulatory and market 
means.'' \37\ This mission is accomplished by pursuing two primary 
goals. First, FERC seeks to ensure that rates, terms and conditions for 
wholesale transactions and transmission of electricity and natural gas 
are just, reasonable and not unduly discriminatory or preferential.\38\ 
Second, FERC seeks to promote the development of safe, reliable and 
efficient energy infrastructure that serves the public interest.\39\ 
Both Congress and FERC, through a series of legislative acts and 
Commission orders, have sought to establish a system whereby wholesale 
electricity generation and transmission in the United States is 
governed by two guiding principles; regulation with respect to 
wholesale electricity

[[Page 52141]]

transmission,\40\ and competition when dealing with wholesale 
generation.\41\
---------------------------------------------------------------------------

    \34\ Federal Power Act, 16 U.S.C. 791a et seq.
    \35\ The Department of Energy Organization Act, Public Law 95-
91, section 401, 91 Stat. 565, 582 (1977) (codified as amended at 42 
U.S.C. 7171 (1988)).
    \36\ See 42 U.S.C. 7172.
    \37\ See FERC Strategic Plan for Fiscal Years 2009-2014, 3 (Feb. 
2012), http://www.ferc.gov/about/strat-docs/FY-09-14-strat-plan-print.pdf.
    \38\ Id.
    \39\ Id.
    \40\ The term ```wholesale transmission services' means the 
transmission of electric energy sold, or to be sold, at wholesale in 
interstate commerce.'' See 16 U.S.C. 796 (24)).
    \41\ See generally FERC Order 888. See also FERC's discussion of 
electric competition, available at http://www.ferc.gov/industries/electric/indus-act/competition.asp (stating that ``[FERC]'s core 
responsibility is to `guard the consumer from exploitation by non-
competitive electric power companies.' '').
---------------------------------------------------------------------------

    In 1996, FERC issued FERC Order 888, which promoted competition in 
the generation market by ensuring fair access and market treatment by 
transmission customers.\42\ Specifically, FERC Order 888 sought to 
``remedy both existing and future undue discrimination in the industry 
and realize the significant customer benefits that will come with open 
access.'' \43\ FERC Order 888 encouraged the formation of ISOs as a 
potentially effective means for accomplishing non-discriminatory open 
access to the transmission of electrical power.\44\
---------------------------------------------------------------------------

    \42\ See FERC Order 888.
    \43\ FERC Order 888 at 21541.
    \44\ FERC Order 888 at 21594. Under the old system, one party 
could own both generation and transmission resources, giving 
preferential treatment to its own and affiliated entities. See 
generally FERC Order 888.
---------------------------------------------------------------------------

    In addition, FERC has issued orders that address areas such as 
increased RTO and ISO participation by transmission utilities, 
increased use of long-term firm transmission rights, increased 
investment in transmission infrastructure, reduced transmission 
congestion and the use of demand-response.\45\ The end result of this 
series of FERC orders is that a regulatory system has been established 
that requires ISOs and RTOs to comply with numerous FERC rules designed 
to improve both the reliability of the physical operations of electric 
transmission systems as well as the competitiveness of electricity 
markets. The requirements imposed by the various FERC Orders seek to 
ensure that FERC is able to accomplish its two main goals; ensuring 
that rates, terms and conditions are just, reasonable and not unduly 
discriminatory or preferential, while promoting the development of 
safe, reliable and efficient energy infrastructure that serves the 
public interest.
---------------------------------------------------------------------------

    \45\ See, e.g., FERC Order 2000, 65 FR 809 (2000)(encouraging 
transmission utilities to join RTOs); FERC Order No. 681, 71 FR 
43294 (2006), FERC Stats. & Regs. ] 31,222 (2006), order on reh'g, 
Order No. 679-A, 72 FR 1152, Jan. 10, 2007, FERC Stats. & Regs. ] 
31,236, order on reh'g, 119 FERC ] 61,062 (2007) (finalizing 
guidelines for ISOs to follow in developing proposals to provide 
long-term firm transmission rights in organized electricity 
markets); FERC Order No. 679, 71 FR 43294 (2006) (finalizing rules 
to increase investment in the nation's aging transmission 
infrastructure, and to promote electric power reliability and lower 
costs for consumers, by reducing transmission congestion); FERC 
Order No. 890, 72 FR 12266 (2007)(modifying existing rules to 
promote the nondiscriminatory and just operation of transmission 
systems); and FERC Order No. 719-A, 74 FR 37776 (2009) (implementing 
the use of demand-response (the process of requiring electricity 
consumers to reduce their electricity use during times of heightened 
demand), encouraging the use of long-term power contracts and 
strengthening the role of market monitors).
---------------------------------------------------------------------------

C. PUCT

    In 1975, the Texas Legislature enacted the Public Utility 
Regulatory Act (``PURA'') and created PUCT to provide statewide 
regulation of the rates and services of electric and telecommunications 
utilities.\46\ PUCT's stated mission is to assure the availability of 
safe, reliable, high quality services that meet the needs of all Texans 
at just and reasonable rates.\47\ To this end, PUCT regulates electric 
and telecommunications utilities while facilitating competition, 
operation of the free market, and customer choice.\48\ Subchapter S of 
TAC Sec.  25 (``Wholesale Markets'') sets out the rules applicable to 
ERCOT, which operates a wholesale electricity market in Texas similar 
to the electricity markets run by the other Petitioners. As with the 
RTOs and ISOs regulated by FERC, ERCOT is required to have rules that 
address the regulatory requirements imposed by PUCT.\49\ These rules 
address issues similar to those rules imposed by FERC on RTOs and 
ISOs,\50\ including matters such as market design, pricing safeguards, 
market monitoring, monitoring for wholesale market power, resource 
adequacy and ERCOT emergency response services,\51\ and are aimed at 
developing electricity markets that are able to provide reliable, safe 
and efficient electric service to the people of Texas, while also 
maintaining rates at an affordable level through the operation of fair 
competition.\52\
---------------------------------------------------------------------------

    \46\ Public Utility Regulatory Act, TEX. UTIL. CODE ANN. 11.001 
et seq. (Vernon 1998 & Supp. 2005).
    \47\ 16 Texas Admin. Code (``TAC'') 25.1 (1998).
    \48\ Id.
    \49\ See generally 16 TAC 25.501-25.507.
    \50\ See generally id.
    \51\ See generally id.
    \52\ See generally 16 TAC 25.503.
---------------------------------------------------------------------------

D. FERC & PUCT Oversight

    As discussed above, both FERC and PUCT assert that their primary 
goal in regulating their respective electricity markets is to ensure 
that consumers are able to purchase electricity on a safe, reliable and 
affordable basis.\53\
---------------------------------------------------------------------------

    \53\ See generally 16 TAC 25.1. See also FERC Strategic Plan for 
Fiscal Years 2009-2014, 3 (Feb. 2012), http://www.ferc.gov/about/strat-docs/FY-09-14-strat-plan-print.pdf.
---------------------------------------------------------------------------

IV. Scope of the Exemption

A. Transactions Subject to the Exemption

    After due consideration, the Commission proposes to exempt certain 
Financial Transmission Rights (``FTRs''), Energy Transactions, Forward 
Capacity Transactions, and Reserve or Regulation Transactions 
(collectively, the ``Transactions''), each as defined below, pursuant 
to section 4(c)(6) of the Act.
    An FTR is a transaction, however named, that entitles one party to 
receive, and obligates another party to pay, an amount based solely on 
the difference between the price for electricity, established on an 
electricity market administered by a Petitioner, at a specified source 
(i.e., where electricity is deemed injected into the grid of a 
Petitioner) and a specified sink (i.e., where electricity is deemed 
withdrawn from the grid of a Petitioner).\54\ The term ``FTR'' includes 
Financial Transmission Rights, and Financial Transmission Rights in the 
form of options (i.e., where one party has only the obligation to pay, 
and the other party only the right to receive, an amount as described 
above). As more fully described below, the Proposed Exemption applies 
only to FTRs where each FTR is linked to, and the aggregate volume of 
FTRs for any period of time is limited by, the physical capability 
(after accounting for counterflow) of the electricity transmission 
system operated by the Petitioner offering the contract for such 
period: a Petitioner serves as the market administrator for the market 
on which the FTR is transacted; each party to the Transaction is a 
member of the particular Petitioner (or is the Petitioner itself) and 
the Transaction is executed on a market administered by that 
Petitioner; and the Transaction does not require any party to make or 
take physical delivery of electricity.\55\
---------------------------------------------------------------------------

    \54\ Petition at 6.
    \55\ Each FTR specifies a direction along a path from a 
specified source to a specified sink. Counterflow FTRs specify a 
path where congestion in the physical market is in the opposite 
direction from the prevailing flow. Holders of counterflow FTRs 
generally pay congestion revenues to the RTO or ISO. Because 
counterflow FTRs are expected to result in payment liability to the 
FTR holder, the price of counterflow FTRS are typically negative. 
That is, the RTO or ISO pays market participants to acquire them. 
However, counterflow FTRs may be profitable (and prevailing flow 
FTRs may result in a payment liability) where congestion in the 
physical market occurs in direction opposite to that expected. See 
generally PJM Interconnection, L.L.C., 122 FERC ] 61,279 (2008); see 
also PJM Interconnection, L.L.C, 121 FERC ] 61,089 (2007).
---------------------------------------------------------------------------

    ``Energy Transactions'' are transactions in a ``Day-Ahead Market''

[[Page 52142]]

or ``Real-Time Market,'' as those terms are defined in the Proposed 
Exemption, for the purchase or sale of a specified quantity of 
electricity at a specified location where the price of electricity is 
established at the time the transaction is executed.\56\ Performance 
occurs in the Real-Time Market by either the physical delivery or 
receipt of the specified electricity or a cash payment or receipt at 
the price established in the Real-Time Market; and the aggregate 
cleared volume of both physical and cash-settled energy transactions 
for any period of time is limited by the physical capability of the 
electricity transmission system operated by a Petitioner for that 
period of time.\57\ Energy Transactions are also referred to as Virtual 
Bids or Convergence Bids.\58\
---------------------------------------------------------------------------

    \56\ See Petition at 7. See also section VIII. below.
    \57\ See id. at 7. See also section VIII. below.
    \58\ See id. at 6.
---------------------------------------------------------------------------

    ``Forward Capacity Transactions'' fall into three distinct 
categories, Generation Capacity (``GC''), Demand Response (``DR''), and 
Energy Efficiency.\59\ GC refers to the right of a Petitioner to 
require certain sellers to maintain the interconnection of electric 
generation facilities to specific physical locations in the electric 
power transmission system during a future time period as specified in 
the Petitioner's Tariff.\60\ Furthermore, a GC contract requires a 
seller to offer specified amounts of electric energy into the Day-Ahead 
or Real-Time Markets for electricity transactions. A GC contract also 
requires a seller, subject to the terms and conditions of a 
Petitioner's Tariff, to inject electric energy into the electric power 
transmission system operated by the Petitioner.\61\ A DR Right gives 
Petitioners the right to require that certain sellers of such rights 
curtail their consumption of electricity from Petitioner's electricity 
transmission system during a future period of time as specified in the 
Petitioners' Tariffs.\62\ Energy Efficiency Rights (``EER'') provides 
Petitioners with the right to require specific performance of an action 
or actions on the part of the other party that will reduce the need for 
GC or DR capacity over the duration of a future period of time as 
specified in the Petitioner's Tariffs.\63\ Moreover, for a Forward 
Capacity Transaction to be eligible for exemption hereunder, the 
aggregate cleared volume of all such transactions for any period of 
time must be limited to the physical capability of the electric 
transmission system operated by the applicable Petitioner for that 
period of time.
---------------------------------------------------------------------------

    \59\ See id. at 7-8.
    \60\ See id. at 7.
    \61\ See id.
    \62\ See id. at 7.
    \63\ See id. at 8. Another example of an EER would be requiring 
an RTO or ISO member to change equipment in order to improve the 
efficiency of the system, and in turn, reduce the amount of 
electricity drawn from the system. See also section VIII. below.
---------------------------------------------------------------------------

    ``Reserve Regulation Transactions'' allow a Petitioner to purchase 
through auction, for the benefit of load serving entities (``LSEs'') 
and resources, the right, during a period of time specified in the 
Petitioner's Tariff, to require the seller to operate electric 
facilities in a physical state such that the facilities can increase or 
decrease the rate of injection or withdrawal of electricity to the 
electric power transmission system operated by the Petitioner with 
physical performance by the seller's facilities within a response 
interval specified in the Petitioner's tariff (Reserve Transaction), or 
prompt physical performance by the seller's facilities (Area Control 
Error Regulation Transaction).\64\ In consideration for such delivery, 
or withholding of delivery, the seller receives compensation of the 
type specified in section VIII below.\65\ In all cases, the quantity 
and specifications for such Transactions for a Petitioner for any 
period of time are limited by the physical capability of the electric 
transmission system operated by Petitioners.\66\ These Transactions are 
typically used to address unforeseen fluctuations in the level of 
electricity demand experienced on the electric transmission system.
---------------------------------------------------------------------------

    \64\ See id. at 8-9. See also section VIII. below.
    \65\ See id. at 8.
    \66\ See id. at 8-9.
---------------------------------------------------------------------------

B. Conditions

    The Proposed Exemption would be subject to certain conditions. 
First, all parties to the agreements, contracts or transactions that 
are covered by the Proposed Exemption must be either ``appropriate 
persons,'' as such term is defined in sections 4(c)(3)(A) through (J) 
of the Act, or ``eligible contract participants,'' as such term is 
defined in section 1a(18)(A) of the Act and in Commission regulation 
1.3(m).\67\
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    \67\ That is, the Commission is proposing to use its authority 
pursuant to CEA 4(c)(3)(K) to include eligible contract participants 
as appropriate persons for the purposes of this Order. See infra n. 
80 and accompanying text.
---------------------------------------------------------------------------

    Second, the agreements, contracts or transactions that are covered 
by the Proposed Exemption must be offered or sold pursuant to a 
Petitioner's tariff, which has been approved or permitted to take 
effect by:
    (1) In the case of ERCOT, the PUCT or
    (2) In the case of all other Petitioners, FERC.
    Third, none of a Petitioner's tariffs or other governing documents 
may include any requirement that the Petitioner notify a member prior 
to providing information to the Commission in response to a subpoena or 
other request for information or documentation.
    Finally, information sharing arrangements that are satisfactory to 
the Commission between the Commission and FERC and between the 
Commission and PUCT must be in full force and effect.\68\
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    \68\ As discussed in section VIII.A. below, the Commission and 
FERC have already entered into a Memorandum of Understanding, a copy 
of which is available at http://www.ferc.gov/legal/maj-ord-reg/mou/mou-33.pdf. In addition, the Commission intends on working with the 
PUCT on an MOU that is mutually satisfactory.
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C. Additional Limitations

    As discussed above, the Commission proposes to exempt the 
Transactions pursuant to section 4(c)(6) of the Act based, in part, on 
certain representations made by Petitioners as well as the additional 
limitations that are noted below. As represented in the Petition, the 
exemption requested by Petitioners relate to Transactions that are 
primarily entered into by commercial participants that are in the 
business of generating, transmitting and distributing electricity.\69\ 
In addition, the Commission notes that it appears that Petitioners were 
established for the purpose of providing affordable, reliable 
electricity to consumers within their geographic region.\70\ 
Critically, these Transactions are an essential means, designed by FERC 
and PUCT as an integral part of their statutory responsibilities, to 
enable the reliable delivery of affordable electricity.\71\ The 
Commission also notes that each of the Transactions taking place on 
Petitioners' markets is monitored by Market Monitoring Units (``MMU'') 
responsible to either FERC or, in the case of ERCOT, PUCT.\72\ Finally, 
as discussed above, each Transaction is directly tied to the physical 
capabilities of Petitioners' electricity grids.\73\ As more fully 
described below,\74\ and on the basis of the aforementioned 
representations, the Commission finds that the Proposed Exemption would 
be in the public interest for the specified Transactions.

[[Page 52143]]

To be clear, however, financial transactions that are not tied to the 
allocation of the physical capabilities of an electric transmission 
grid would not be suitable for exemption because such activity would 
not be inextricably linked to the physical delivery of electricity.
---------------------------------------------------------------------------

    \69\ See generally Petition at 20.
    \70\ See id. at 3-4.
    \71\ See generally FERC Order 888; FERC Order 2000; 18 CFR 
35.34(k)(2); and TAC 25.1. See also Petition at 11, 13-14.
    \72\ Petition at 15-18.
    \73\ See id. at 6-9.
    \74\ See the discussions in sections V.B., V.D., and V.E. below.
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V. Section 4(c)Analysis

A. Overview of CEA Section 4(c)

1. Sections 4(c)(6)(A) and (B)
    The Dodd-Frank Act amended CEA section 4(c) to add sections 
4(c)(6)(A) and (B), which provide for exemptions for certain 
transactions entered into (a) pursuant to a tariff or rate schedule 
approved or permitted to take effect by FERC, or (b) pursuant to a 
tariff or rate schedule establishing rates or charges for, or protocols 
governing, the sale of electric energy approved or permitted to take 
effect by the regulatory authority of the State or municipality having 
jurisdiction to regulate rates and charges for the sale of electric 
energy within the State or municipality, as eligible for exemption 
pursuant to the Commission's 4(c) exemptive authority.\75\ Indeed, 
4(c)(6) provides that ``[i]f the Commission determines that the 
exemption would be consistent with the public interest and the purposes 
of this chapter, the Commission shall'' issue such an exemption. 
However, any exemption considered under 4(c)(6)(A) and/or (B) must be 
done ``in accordance with [CEA section 4(c)(1) and (2)].'' \76\
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    \75\ The exemption language in section 4(c)(6) reads:
    (6) If the Commission determines that the exemption would be 
consistent with the public interest and the purposes of this Act, 
the Commission shall, in accordance with paragraphs (1) and (2), 
exempt from the requirements of this Act an agreement, contract, or 
transaction that is entered into--
    (A) Pursuant to a tariff or rate schedule approved or permitted 
to take effect by the Federal Energy Regulatory Commission;
    (B) Pursuant to a tariff or rate schedule establishing rates or 
charges for, or protocols governing, the sale of electric energy 
approved or permitted to take effect by the regulatory authority of 
the State or municipality having jurisdiction to regulate rates and 
charges for the sale of electric energy within the State or 
municipality; or
    (C) Between entities described in section 201(f) of the Federal 
Power Act (16 U.S.C. 824(f)).
    \76\ CEA section 4(c)(6) explicitly directs the Commission to 
consider any exemption proposed under 4(c)(6) ``in accordance with 
[CEA section 4(c)(1) and (2)].''
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2. Section 4(c)(1)
    CEA section 4(c)(1) requires that the Commission act ``by rule, 
regulation or order, after notice and opportunity for hearing.'' It 
also provides that the Commission may act ``either unconditionally or 
on stated terms or conditions or for stated periods and either 
retroactively or prospectively or both'' and that the Commission may 
provide exemption from any provisions of the CEA except subparagraphs 
(C)(ii) and (D) of section 2(a)(1).\77\
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    \77\ Section 4(c)(1), 7 U.S.C. 6(c)(1), states:
    (c)(1) In order to promote responsible economic or financial 
innovation and fair competition, the Commission by rule, regulation, 
or order, after notice and opportunity for hearing, may (on its own 
initiative or on application of any person, including any board of 
trade designated or registered as a contract market or derivatives 
transaction execution facility for transactions for future delivery 
in any commodity under section 5 of this Act) exempt any agreement, 
contract, or transaction (or class thereof) that is otherwise 
subject to subsection (a) (including any person or class of persons 
offering, entering into, rendering advice or rendering other 
services with respect to, the agreement, contract, or transaction), 
either unconditionally or on stated terms or conditions or for 
stated periods and either retroactively or prospectively, or both, 
from any of the requirements of subsection (a), or from any other 
provision of this Act (except subparagraphs (C)(ii) and (D) of 
section 2(a)(1), except that--
    (A) Unless the Commission is expressly authorized by any 
provision described in this subparagraph to grant exemptions, with 
respect to amendments made by subtitle A of the Wall Street 
Transparency and Accountability Act of 2010--
    (i) With respect to--
    (I) Paragraphs (2), (3), (4), (5), and (7), paragraph 
(18)(A)(vii)(III), paragraphs (23), (24), (31), (32), (38), (39), 
(41), (42), (46), (47), (48), and (49) of section 1a, and sections 
2(a)(13), 2(c)(1)(D), 4a(a), 4a(b), 4d(c), 4d(d), 4r, 4s, 5b(a), 
5b(b), 5(d), 5(g), 5(h), 5b(c), 5b(i), 8e, and 21; and
    (II) Section 206(e) of the Gramm-Leach-Bliley Act (Pub. L. 106-
102; 15 U.S.C. 78c note); and
    (ii) in sections 721(c) and 742 of the Dodd-Frank Wall Street 
Reform and Consumer Protection Act; and
    (B) The Commission and the Securities and Exchange Commission 
may by rule, regulation, or order jointly exclude any agreement, 
contract, or transaction from section 2(a)(1)(D)) if the Commissions 
determine that the exemption would be consistent with the public 
interest.
---------------------------------------------------------------------------

3. Section 4(c)(2)
    CEA section 4(c)(2) requires the Commission to determine that: To 
the extent an exemption provides relief from any of the requirements of 
CEA section 4(a), the requirement should not be applied to the 
agreement, contract or transaction; the exempted agreement, contract, 
or transactions will be entered into solely between appropriate 
persons; \78\ and the exemption will not have a material adverse effect 
on the ability of the Commission or any contract market to discharge 
its regulatory or self-regulatory duties under the CEA.\79\
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    \78\ See CEA 4(c)(2)(B)(i) and the discussion of CEA section 
4(c)(3) below.
    \79\ CEA section 4(c)(2)(A) also requires that the exemption 
would be consistent with the public interest and the purposes of the 
CEA, but that requirement duplicates the requirement of section 
4(c)(6).
---------------------------------------------------------------------------

4. Section 4(c)(3)
    CEA section 4(c)(3) outlines who may constitute an appropriate 
person for the purpose of a 4(c) exemption, including as relevant to 
this Notice: (a) Any person that fits in one of ten defined categories 
of appropriate persons; or (b) such other persons that the Commission 
determines to be appropriate in light of their financial or other 
qualifications, or the applicability of appropriate regulatory 
protections.\80\
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    \80\ Section 4(c)(3), 7 U.S.C. 6(c)(3), provides that: the term 
``appropriate person'' shall be limited to the following persons or 
classes thereof:
    (A) A bank or trust company (acting in an individual or 
fiduciary capacity).
    (B) A savings association.
    (C) An insurance company.
    (D) An investment company subject to regulation under the 
Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.).
    (E) A commodity pool formed or operated by a person subject to 
regulation under this Act.
    (F) A corporation, partnership, proprietorship, organization, 
trust, or other business entity with a net worth exceeding 
$1,000,000 or total assets exceeding $5,000,000, or the obligations 
of which under the agreement, contract or transaction are guaranteed 
or otherwise supported by a letter of credit or keepwell, support, 
or other agreement by any such entity or by an entity referred to in 
subparagraph (A), (B), (C), (H), (I), or (K) of this paragraph.
    (G) An employee benefit plan with assets exceeding $1,000,000, 
or whose investment decisions are made by a bank, trust company, 
insurance company, investment adviser registered under the 
Investment Advisers Act of 1940 (15 U.S.C. 80a-1 et seq.), or a 
commodity trading advisor subject to regulation under this Act.
    (H) Any governmental entity (including the United States, any 
state, 4-1 or any foreign government) or political subdivision 
thereof, or any multinational or supranational entity or any 
instrumentality, agency, or department of any of the foregoing.
    (I) A broker-dealer subject to regulation under the Securities 
Exchange Act of 1934 (15 U.S.C. 78a et seq.) acting on its own 
behalf or on behalf of another appropriate person.
    (J) A futures commission merchant, floor broker, or floor trader 
subject to regulation under this Act acting on its own behalf or on 
behalf of another appropriate person.
    (K) Such other persons that the Commission determines to be 
appropriate in light of their financial or other qualifications, or 
the applicability of appropriate regulatory protections.
---------------------------------------------------------------------------

B. Proposed CEA Section 4(c) Determinations

    In connection with the Proposed Exemption, the Commission has 
considered and proposes to determine that: (i) The Proposed Exemption 
is consistent with the public interest and the purposes of the CEA; 
(ii) CEA section 4(a) should not apply to the transactions or entities 
eligible for the Proposed Exemption, (iii) the persons eligible to rely 
on the Proposed Exemption are appropriate persons pursuant to CEA 
section 4(c)(3); and (iv) the Proposed Exemption will not have a 
material adverse effect on the ability of the Commission or any 
contract market to discharge its regulatory or self-regulatory duties 
under the CEA.

[[Page 52144]]

1. Consistent with the Public Interest and the Purposes of the CEA
    As required by CEA section 4(c)(2)(A), as well as section 4(c)(6), 
the Commission proposes to determine that the Proposed Exemption is 
consistent with the public interest and the purposes of the CEA. 
Section 3(a) of the CEA provides that transactions subject to the CEA 
affect the national public interest by providing a means for managing 
and assuming price risk, discovering prices, or disseminating pricing 
information through trading in liquid, fair and financially secure 
trading facilities. Section 3(b) of the CEA identifies the purposes of 
the CEA:

    It is the purpose of this Act to serve the public interests 
described in subsection (a) through a system of effective self-
regulation of trading facilities, clearing systems, market 
participants and market professionals under the oversight of the 
Commission. To foster these public interests, it is further the 
purpose of this Act to deter and prevent price manipulation or any 
other disruptions to market integrity; to ensure the financial 
integrity of all transactions subject to this Act and the avoidance 
of systemic risk; to protect all market participants from fraudulent 
or other abusive sales practices and misuses of customer assets; and 
to promote responsible innovation and fair competition among boards 
of trade, other markets and market participants.

    The Petitioners assert that the Proposed Exemption would be 
consistent with the public interest and purposes of the CEA,\81\ 
stating generally that: (a) The Transactions have been, and are, 
subject to a long-standing, comprehensive regulatory framework for the 
offer and sale of the Transactions established by FERC or PUCT; and (b) 
the Transactions administered by the RTOs/ISOs or ERCOT are part of, 
and inextricably linked to, the organized wholesale electricity markets 
that are subject to FERC and PUCT regulation and oversight.\82\ For 
example, Petitioners explain that FERC Order No. 2000 (which, along 
with FERC Order No. 888, encouraged the formation of RTOs/ISOs to 
operate the electronic transmission grid and to create organized 
wholesale electric markets) requires an RTO/ISO to demonstrate that it 
has four minimum characteristics: (1) Independence from any market 
participant; (2) a scope and regional configuration which enables the 
ISO/RTO to maintain reliability and effectively perform its required 
functions; (3) operational authority for its activities, including 
being the security coordinator for the facilities that it controls; and 
(4) short-term reliability.\83\ Petitioners highlight that an RTO/ISO 
must demonstrate to FERC that it performs certain self-regulatory and/
or market monitoring functions,\84\ and the Petition describes the 
analogous requirements applicable to ERCOT under PUCT and the PURA.\85\
---------------------------------------------------------------------------

    \81\ See Petition at 11.
    \82\ See id.
    \83\ See id. at 13.
    \84\ See id. at 13-14 (explaining that each RTO/ISO must employ 
a transmission pricing system that promotes efficient use and 
expansion of transmission and generation facilities; develop and 
implement procedures to address parallel path flow issues within its 
region and with other regions; serve as a provider of last resort of 
all ancillary services required by FERC Order No. 888 including 
ensuring that its transmission customers have access to a real-time 
balancing market; be the single OASIS (Open-Access Same-Time 
Information System) site administrator for all transmission 
facilities under its control and independently calculate Total 
Transmission Capacity and Available Transmission Capability; provide 
reliable, efficient and not unduly discriminatory transmission 
service, it must provide for objective monitoring of markets it 
operates or administers to identify market design flaws, market 
power abuses and opportunities for efficiency improvements; be 
responsible for planning, and for directing or arranging, necessary 
transmission expansions, additions, and upgrades; and ensure the 
integration of reliability practices within an interconnection and 
market interface practices among regions).
    \85\ See id. at 14-15. Pursuant to PURA 39.151(a), ERCOT's roles 
and duties are to provide access to the transmission and 
distribution systems for all buyers and sellers of electricity on 
nondiscriminatory terms; ensure the reliability and adequacy of the 
regional electrical network; ensure that information relating to a 
customer's choice of retail electric provider is conveyed in a 
timely manner to the persons who need that information; and ensure 
that electricity production and delivery are accurately accounted 
for among the generators and wholesale buyers and sellers in the 
region.
---------------------------------------------------------------------------

    Of single importance, Petitioners are responsible for ``ensur[ing] 
the development and operation of market mechanisms to manage 
transmission congestion. * * * The market mechanisms must accommodate 
broad participation by all market participants, and must provide all 
transmission customers with efficient price signals that show the 
consequences of their transmission usage decisions.'' \86\
---------------------------------------------------------------------------

    \86\ See Petition at 14. See also 18 CFR 35.34(k)(2).
---------------------------------------------------------------------------

    Petitioners also explain that the Transactions are primarily 
entered into by commercial participants that are in the business of 
generating, transmitting, and distributing electricity,\87\ and that 
Petitioners were established for the purpose of providing affordable, 
reliable electricity to consumers within their geographic region.\88\ 
Furthermore, the Transactions that take place on Petitioners' markets 
are overseen by a market monitoring function, required by FERC for each 
Petitioner, and by PUCT in the case of ERCOT, to identify manipulation 
of electricity on Petitioners' markets.\89\
---------------------------------------------------------------------------

    \87\ See generally Petition at 20.
    \88\ See id. at 3-4.
    \89\ See id. at 15-18.
---------------------------------------------------------------------------

    Fundamental to the Commission's ``public interest'' and ``purposes 
of the [Act]'' analysis is the fact that the Transactions are 
inextricably tied to the Petitioners' physical delivery of electricity, 
as represented in the Petition.\90\ An equally important factor is that 
the Proposed Exemption is explicitly limited to Transactions taking 
place on markets that are monitored by either an independent market 
monitor, a market administrator (the RTO/ISO, or ERCOT), or both, and a 
government regulator (FERC or PUCT). In contrast, an exemption for 
financial transactions that are not so monitored, or not related to the 
physical capacity of an electric transmission grid, or not directly 
linked to the physical generation and transmission of electricity, or 
not limited to appropriate persons,\91\ is unlikely to be in the public 
interest or consistent with the purposes of the CEA and would not be 
subject to this exemption.
---------------------------------------------------------------------------

    \90\ See id. at 6-9 (describing the Transactions and noting that 
each of them ``is part of, and inextricably linked to, the organized 
wholesale electricity markets that are subject to FERC and PUCT 
regulation and oversight'').
    \91\ See appropriate persons discussion, below, section V.B.3.
---------------------------------------------------------------------------

    Finally, and as discussed in detail below, the extent to which the 
Proposed Exemption is consistent with the public interest and the 
purposes of the Act can, in major part, be measured by the extent to 
which the tariffs and activities of the Petitioners, and supervision by 
FERC and PUCT, are congruent with, and sufficiently accomplish, the 
regulatory objectives of the relevant core principles set forth in the 
CEA for derivatives clearing organizations (``DCOs'') and swap 
execution facilities (``SEFs''). Specifically, providing a means for 
managing or assuming price risk and discovering prices, as well as 
prevention of price manipulation and other disruptions to market 
integrity, are addressed by the core principles for SEFs. Ensuring the 
financial integrity of the transactions and the avoidance of systemic 
risk, as well as protection from the misuse of participant assets, are 
addressed by the core principles for DCOs. Deterrence of price 
manipulation (or other disruptions to market integrity) and protection 
of market participants from fraudulent sales practices is achieved by 
the Commission retaining and exercising its jurisdiction over these 
matters. Therefore, the Commission has incorporated its DCO/SEF core 
principle analysis, set forth below, into its consideration of the 
Proposed

[[Page 52145]]

Exemption's consistency with the public interest and the purposes of 
the Act. In the same way, the Commission has considered how the public 
interest and the purposes of the CEA are also addressed by the manner 
in which Petitioners comply with FERC's Credit Reform Policy.\92\
---------------------------------------------------------------------------

    \92\ See FERC Credit Reform Policy discussion, below, at section 
V.C.
---------------------------------------------------------------------------

    Based on this review, the Commission proposes to determine that the 
Proposed Exemption is consistent with the public interest and the 
purposes of the CEA, and the Commission is specifically requesting 
comment on whether the Proposed Exemption is consistent with the public 
interest and the purposes of the Act.
2. CEA Section 4(a) Should Not Apply to the Transactions or Entities 
Eligible for the Proposed Exemption
    CEA section 4(c)(2)(A) requires, in part, that the Commission 
determine that the Transactions covered under the Proposed Exemption 
should not be subject to CEA section 4(a)--generally, the Commission's 
exchange trading requirement for a contract for the purchase or sale of 
a commodity for future delivery. Based in major part on the 
Petitioners' representations, the Commission has examined the 
Transactions, the Petitioners, and their markets in the context of the 
CEA core principle requirements applicable to a DCO and to a SEF.\93\ 
As further support for this determination, the Commission is also 
relying on the public interest and the purposes of the Act analysis in 
subsection 3 below. In so doing, the Commission can determine that, due 
to the FERC or PUCT regulatory scheme and the RTO/ISO or ERCOT market 
structure already applicable to the Transactions, the linkage between 
the Transactions and those regulatory schemes, and the unique nature of 
the market participants that would be eligible to rely on the Proposed 
Exemption,\94\ CEA section 4(a) should not apply to the Transactions 
under the Proposed Exemption.
---------------------------------------------------------------------------

    \93\ See DCO core principle analysis below, at section V.D.; see 
also SEF core principle analysis below, at section V.E.
    \94\ See appropriate persons analysis, below, at section V.B.3.
---------------------------------------------------------------------------

    The Commission is requesting comment on whether its Proposed 
Exemption of the Transactions from CEA section 4(a) is appropriate.
3. Appropriate Persons
    CEA section 4a(c)(2)(B)(i) requires that the Commission determine 
that the Proposed Exemption is properly limited to transactions entered 
into between appropriate persons as described in CEA section 4(c)(3). 
The Petitioners assert that each Petitioner's market participants fit 
within the ``appropriate person'' requirement under CEA section 
4(c)(3), relying primarily on two categories of appropriate persons. 
The first category includes those entities that have a net worth 
exceeding $1,000,000 or total assets exceeding $5,000,000, as 
identified in CEA section 4(c)(3)(F).\95\ The second group of 
appropriate persons would fall within a grouping under CEA section 
4(c)(3)(K), which includes persons deemed appropriate by the Commission 
``in light of their financial or other qualifications, or the 
applicability of appropriate regulatory protection.'' \96\
---------------------------------------------------------------------------

    \95\ CEA section 4(c)(3)(F) provides that the following entities 
are ``appropriate persons'' that the Commission may exempt under CEA 
section 4(a). The relevant text of 4(c)(3)(F) provides: ``A 
corporation, partnership, proprietorship, organization, trust, or 
other business entity with a net worth exceeding $1,000,000 or total 
assets exceeding $5,000,000, or the obligations of which under the 
agreement, contract or transaction are guaranteed or otherwise 
supported by a letter of credit or keepwell, support, or other 
agreement by any such entity or by an entity referred to in 
subparagraph (A), (B), (C), (H), (I), or (K) of this paragraph.''
    \96\ CEA 4(c)(3)(K).
---------------------------------------------------------------------------

    The Petitioners explain that FERC has instructed all RTOs and ISOs 
subject to FERC supervision \97\ to create minimum standards for market 
participants. The Petitioners state that:
---------------------------------------------------------------------------

    \97\ According to the Petition, ERCOT is reviewing its 
``participants eligibility standards to ensure that they are 
consistent with the requirements of [CEA] Section 4(c).'' Petition 
at 27. See also Attachment C to Petition, beginning at Attachments 
at 27 (``Through its stakeholder process, ERCOT is in the process of 
developing new eligibility requirements that are comparable to those 
required by FERC Order No. 741.'').

    In Order No. 741, FERC directed each of the ISOs/RTOs to 
establish minimum criteria for market participants. FERC did not 
specify the criteria the ISOs/RTOs should apply, but rather directed 
them to establish criteria through their stakeholder processes. 
Accordingly, each of the FERC jurisdictional ISOs/RTOs submitted to 
FERC proposals to establish minimum criteria for participation in 
their markets. Although ERCOT is not subject to the requirements 
FERC's Credit Reform Orders, ERCOT is reviewing its participant 
eligibility standards to ensure that they are consistent with the 
requirements of Section 4(c). These proposals were accepted by FERC 
subject to a supplemental compliance filing to provide for 
verification of risk management policies and procedures.
    Although there is some variation among the minimum participation 
criteria adopted by each ISO/RTO, included in each is a baseline 
capitalization requirement that participants have net worth of at 
least $1 million or total assets of at least $10 million.\98\
---------------------------------------------------------------------------

    \98\ Petition at 26-27 (citations omitted).
---------------------------------------------------------------------------

However, the Petitioners acknowledge that there are exceptions to this 
``baseline capitalization requirement,'' that is, market participants 
who do not meet the minimum net worth or total assets criteria under 
the CEA who pursuant to Petitioners' Tariffs must post financial 
security because they are under-capitalized. Nonetheless, as the 
Petitioners explain, there is an exception to the posting requirement 
for market participants with small positions. The Petitioners provide 
the following explanation for the exception:

    The criteria of some ISOs/RTOs also reduce the financial 
security posting requirement for certain entities that maintain only 
small positions on the markets of the ISO/RTO and therefore expose 
the ISOs/RTOs to minimal risk. These entities are instead required 
to post additional financial security with the ISO/RTO in an amount 
that would depend on the size of their positions. In this regard, a 
notable number of participants in the markets of some ISOs/RTOs 
include cooperatives, municipalities or other forms of public 
corporate entities which are authorized to own, lease and operate 
electric generation, transmission or distribution facilities. [\99\] 
Such entities' participation in the ISO/RTO may be necessary to make 
electricity available within the entire grid for a region. 
Nevertheless, they are ``appropriate persons'' because of their 
active participation in the generation, transmission or distribution 
of electricity and the knowledge of the wholesale energy market that 
they have as a consequence of their participation in the physical 
markets. Moreover, the municipal entities are entitled to recover 
their costs for native load service through governmentally 
established retail rates and, accordingly, are able to provide a 
form of financial security (i.e., the ability to request a retail 
rate increase to cover increased costs) that is unavailable to other 
participants in the energy markets. As such, the risk of default by 
such entities is materially lower than it is for other Market 
Participants.\100\
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    \99\ The Commission notes here that CEA 4(c)(3)(H) includes as 
eligible appropriate persons ``Any governmental entity (including 
the United States, any state, or any foreign government) or 
political subdivision thereof, or any multinational or supranational 
entity or any instrumentality, agency, or department of any of the 
foregoing.'' This appropriate persons category would cover the 
municipalities and other government owned market participants.
    \100\ Petition at 27 (citations omitted).

    The Commission is proposing to limit the Proposed Exemption to 
entities that meet one of the appropriate persons categories in CEA 
section 4(c)(3)(A) through (J), or, pursuant to CEA section 4(c)(3)(K), 
that otherwise qualify as an eligible contract participant (``ECP''), 
as that term has been defined.\101\ In this

[[Page 52146]]

connection, the Commission notes that the municipal entities discussed 
above appear to qualify as ``appropriate persons'' pursuant to CEA 
section 4(c)(3)(H).\102\
---------------------------------------------------------------------------

    \101\ See CEA 1(a)(12). See also ``Further Definition of `Swap 
Dealer,' `Security-Based Swap Dealer,' `Major Swap Participant,' 
`Major Security-Based Swap Participant' and `Eligible Contract 
Participant,' '' 77 FR 30596, May 23, 2012.
    \102\ See 7 U.S.C. 6(c)(3)(H) (``Any governmental entity * * * 
including * * * any state * * * or political subdivision thereof * * 
* or any instrumentality, agency or department of any of the 
foregoing.'')
---------------------------------------------------------------------------

    Based on representations contained in the Petition, the Commission 
can determine the Proposed Exemption is limited to appropriate persons 
for those market participants meeting the categories described defined 
in CEA section 4(c)(3)(A) through (J). The CFTC is requesting comment 
as to whether the entities defined in CEA section 4(c)(3)(A) through 
(J) are appropriate persons for the purpose of the Proposed Exemption.
    For those ECPs engaging in Transactions in markets administered by 
the Petitioner that do not fit within 4(c)(3)(A) through (J), the 
Commission is proposing to determine that they are appropriate persons 
pursuant to section 4c(3)(K), ``in light of their financial or other 
qualifications, or the applicability of appropriate regulatory 
protections'' to the extent that such persons are otherwise ECPs. The 
Commission can base this determination on the financial security 
posting schemes, described by the Petitioners, applicable to the 
entities engaging in the Transactions, as well as the market based 
protections applicable to the Transactions regardless of participant, 
as described in the Commission's public interest and purposes of the 
Act analysis, above. In addition, CEA section 2(e) permits all ECPs to 
engage in swaps transactions other than on a designated contract market 
(``DCM''), and so such entities should similarly be appropriate persons 
for the purpose of the Proposed Exemption. The Commission is requesting 
comment on whether the market participants entering into the 
Transactions in markets administered by the Petitioners, particularly 
those that do not fit within 4(c)(3)(A) through (J), but that are ECPs, 
may nonetheless be appropriate persons pursuant to CEA section 
4(c)(3)(K), in light of the financial posting scheme that applies to 
such participants, and in light of the regulatory and market oversight 
programs that apply to the Transactions in the Petitioners' markets.
    The Commission also requests comment as to whether there are 
currently entities engaging in the Transactions that are neither 
entities that fall within CEA section 4(c)(3)(A) through (J) entities 
nor ECPs. If there are such entities, on what basis may the Commission 
similarly conclude that such entities are, pursuant to CEA section 
4(c)(3)(K), appropriate persons for the purpose of the Proposed 
Exemption? In particular, the Commission seeks comment as to whether 
there any other of the Petitioners' market participants that 
``active[ly] participat[e] in the generation, transmission or 
distribution of electricity'' that are not ECPs and do not fall within 
CEA section 4(c)(3)(A) through (J), who should nonetheless be included 
as appropriate persons pursuant to CEA section 4(c)(3)(K).
4. Will Not Have a Material Adverse Effect on the Ability of the 
Commission or Any Contract Market To Discharge Its Regulatory or Self-
Regulatory Duties Under the CEA
    CEA section 4(c)(2)(B)(ii) requires the Commission to determine 
that the Transactions subject to the Proposed Exemption will not have a 
material adverse effect on the ability of the Commission or any 
contract markets to perform regulatory or self-regulatory duties.\103\ 
In making this determination, Congress indicated that the Commission is 
to consider such regulatory concerns as ``market surveillance, 
financial integrity of participants, protection of customers and trade 
practice enforcement.'' \104\ These considerations are similar to the 
purposes of the Act as defined in CEA section 3, initially addressed in 
the public interest discussion, above.
---------------------------------------------------------------------------

    \103\ CEA 4(c)(2)(B).
    \104\ See H.R. No. 978, 102d Cong. 2d Sess. 79 (1992).
---------------------------------------------------------------------------

    Petitioners contend that the Proposed Exemption will not have a 
material adverse effect on the Commission's or any contract market's 
ability to discharge its regulatory function,\105\ asserting that:
---------------------------------------------------------------------------

    \105\ See Petition at 28.

    Under Section 4(d) of the Act, the Commission will retain 
authority to conduct investigations to determine whether 
[Petitioners] are in compliance with any exemption granted in 
response to this request. * * * [T]he requested exemptions would 
also preserve the Commission's existing enforcement jurisdiction 
over fraud and manipulation. This is consistent with section 722 of 
the Dodd-Frank Act, the existing MOU between the FERC and the 
Commission and other protocols for inter-agency cooperation. The 
[Petitioners] will continue to retain records related to the 
Transactions, consistent with existing obligations under FERC and 
PUCT regulations.
    The regulation of exchange-traded futures contracts and 
significant price discovery contracts (``SPDCs'') will be unaffected 
by the requested exemptions. Futures contracts based on electricity 
prices set in the Petitioners' markets that are traded on a 
designated contract market and SPDCs will continue to be regulated 
by and subject to the requirements of the Commission. No current 
requirement or practice of the ISOs/RTOs or of a contract market 
will be affected by the Commission's granting the requested 
exemptions.\106\
---------------------------------------------------------------------------

    \106\ See id. at 28.

    These factors appear to support the Proposed Exemption. In 
addition, the limitation of the exemption to Transactions between 
certain ``appropriate persons'' as discussed above, avoids potential 
issues regarding financial integrity and customer protection. That is, 
this approach would appear to ensure that Transactions subject to this 
Proposed Exemption would be limited to sophisticated entities that are 
able to, from a financial standpoint, understand and manage risks 
associated with such Transactions.
    Moreover, the Proposed Exemption does not exempt Petitioners from 
CEA sections 2(a)(1)(B), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 
6(d), 6(e), 6c, 6d, 8, 9, and 13, to the extent that those sections 
prohibit fraud or manipulation of the price of any swap, contract for 
the sale of a commodity in interstate commerce, or for future delivery 
on or subject to the rules of any contract market. Therefore, the 
Commission retains authority to pursue fraudulent or manipulative 
conduct.\107\
---------------------------------------------------------------------------

    \107\ Nor did the Petitioners seek an exemption from these 
provisions. See id. at 2-3.
---------------------------------------------------------------------------

    In addition, it appears that granting the exemption for the 
Transactions will not have a material adverse effect on the ability of 
any contract market to discharge its self-regulatory duties under the 
Act. With respect to FTRs, Forward Capacity Transactions, and Reserve 
or Regulation Transactions, these transactions do not appear to be used 
for price discovery or as settlement prices for other transactions in 
Commission regulated markets. Therefore, the Proposed Exemption should 
not have a material adverse effect on any contract market carrying out 
its self-regulatory function.
    With respect to Energy Transactions, these transactions do have a 
relationship to Commission regulated markets because they can serve as 
a source of settlement prices for other transactions within Commission 
jurisdiction. Granting the Proposed Exemption, however, should not pose 
regulatory burdens on a contract market because, as discussed in more 
detail below, Petitioners have market monitoring systems in place to 
detect

[[Page 52147]]

and deter manipulation that takes place on their markets. Also, as a 
condition of the Proposed Exemption, the Commission would be able to 
obtain data from FERC and PUCT with respect to activity on Petitioners' 
markets that may impact trading on Commission regulated markets.
    Finally, the Commission notes that if the Transactions ever could 
be used in combination with trading activity or a position in a DCM 
contract to work some market abuse, both the Commission and DCMs have 
sufficient independent authority over DCM market participants to 
monitor for such activity.\108\ Typically, cross-market abuse schemes 
will involve a reportable position in the DCM contract involved. In 
which case, Commission Regulation 18.05 requires the reportable trader 
to keep books and records evidencing all details concerning cash and 
over-the-counter positions and transactions in the underlying commodity 
and to provide such data to the Commission upon demand. Likewise, 
recently-adopted Commission regulation 38.254(a) requires that DCMs 
have rules that require traders to keep records of their trading, 
including records of their activity in the underlying commodity and 
related derivatives markets, and make such records available, upon 
request, to the DCM.\109\
---------------------------------------------------------------------------

    \108\ The Commission notes that its authority to prosecute 
market abuses involving Transactions would not be limited to 
instances where Transactions were part of some cross-market scheme 
involving DCM trading activity.
    \109\ Final Rulemaking--Core Principles and Other Requirements 
for Designated Contract Markets, 72 FR 36612 (June 19, 2012).
---------------------------------------------------------------------------

    The CFTC is requesting comment as to whether the Proposed Exemption 
will have a material adverse effect on the ability of the Commission or 
any contract market to discharge its regulatory or self-regulatory 
duties under the Act, and, if so, what conditions can or should be 
imposed on the Order to mitigate such effects.

C. FERC Credit Reform Policy

    On October 21, 2010, FERC amended its regulations to encourage 
clear and consistent risk and credit practices in the organized 
wholesale electric markets to, inter alia, ``ensure that all rates 
charged for the transmission or sale of electric energy in interstate 
commerce are just, reasonable, and not unduly discriminatory or 
preferential.'' \110\
---------------------------------------------------------------------------

    \110\ 75 FR 65942, 65942, Oct. 21, 2010 (the ``FERC Original 
Order 741''). These requirements were later slightly amended and 
clarified in an order on rehearing. See 76 FR 10492, Feb. 25, 2011 
(``FERC Revised Order 741'', and together with Original Order 741, 
``FERC Order 741'').
---------------------------------------------------------------------------

    In effect, Order 741 requires those RTOs and ISOs that are subject 
to FERC supervision to implement the following reforms: ``shortened 
settlement timeframes, restrictions on the use of unsecured credit, 
elimination of unsecured credit in all [FTRs] or equivalent markets, 
adoption of steps to address the risk that RTOs and ISOs may not be 
allowed to use netting and set-offs, establishment of minimum criteria 
for market participation, clarification regarding the organized 
markets' administrators' ability to invoke `material adverse change' 
clauses to demand additional collateral from participants, and adoption 
of a two-day grace period for `curing' collateral calls.'' \111\ Unlike 
the other Petitioners, ERCOT is regulated by the PUCT, not FERC. As a 
result, ERCOT is not subject to the particular stringent credit and 
risk management standards set forth in Order 741. As discussed below 
regarding conditions precedent starting on page 103 infra, the 
Commission is proposing to require compliance with the standards of 
Order 741 by all Petitioners, including ERCOT, as a condition to 
issuing the Proposed Exemption.
---------------------------------------------------------------------------

    \111\ FERC Revised Order 741 at 10492-10493.
---------------------------------------------------------------------------

    As discussed in more detail below, particularly in section V.C., 
the requirements set forth in Order 741 appear to achieve goals similar 
to the regulatory objectives of the Commission's DCO Core Principles.
    FERC regulation 35.47(c) calls for the elimination of unsecured 
credit in the financial transmission rights markets and equivalent 
markets.\112\ This requirement appears to be congruent with Core 
Principle D's requirement that each DCO limit its exposure to potential 
losses from defaults by clearing members. Because, according to FERC, 
risks arising out of the FTR markets are ``difficult to quantify,'' 
\113\ eliminating the use of unsecured credit in these markets may help 
avoid the unforeseen and substantial costs for an RTO or ISO in the 
event of a default.\114\ Thus, the requirement set forth in regulation 
35.47(c) appears to advance the objectives of Core Principle D by 
reducing risk and minimizing the effect of defaults through the 
elimination of unsecured credit in the FTR and equivalent markets.
---------------------------------------------------------------------------

    \112\ 18 CFR 35.47(c).
    \113\ Specifically, FERC stated that ``the risk associated with 
the potentially rapidly changing value of FTRs warrants adoption of 
risk management measures, including the elimination of unsecured 
credit. Because financial transmission rights have a longer-dated 
obligation to perform which can run from a month to a year or more, 
they have unique risks that distinguish them from other wholesale 
electric markets, and the value of a financial transmission right 
depends on unforeseeable events, including unplanned outages and 
unanticipated weather conditions. Moreover, financial transmission 
rights are relatively illiquid, adding to the inherent risk in their 
valuation.'' FERC Original Order 741 at 65950.
    \114\ Id. at 65949.
---------------------------------------------------------------------------

    In addition, FERC regulation 35.47(a) requires RTOs and ISOs to 
have tariff provisions that ``[l]imit the amount of unsecured credit 
extended by [an RTO or ISO] to no more than $50 million for each market 
participant.'' \115\ This requirement appears to be congruent with one 
of the regulatory objectives of Core Principle D, as implemented by 
Commission Regulation 39.13, specifically the requirement that each DCO 
limit its exposure to potential losses from defaults by clearing 
members. In capping the use of unsecured credit at $50 million, FERC 
stated its belief that RTOs and ISOs ``could withstand a default of 
this magnitude by a single market participant,'' \116\ thereby limiting 
an RTO's or ISO's exposure to potential losses from defaults by its 
market participants. Thus, it seems both Core Principle D and FERC 
regulation 35.47(a) help protect the markets and their participants 
from unacceptable disruptions, albeit in different ways and to a 
different extent.
---------------------------------------------------------------------------

    \115\ In addition, FERC regulation 35.47(a) states that ``where 
a corporate family includes more than one market participant 
participating in the same [RTO or ISO], the limit on the amount of 
unsecured credit extended by that [RTO or ISO] shall be no more than 
$50 million for the corporate family.'' 18 CFR 35.47(a).
    \116\ FERC Original Order 741 at 65948.
---------------------------------------------------------------------------

    FERC regulation 35.47(b) mandates that RTOs and ISOs have billing 
periods and settlement periods of no more than seven days.\117\ While 
this mandate does not meet the standards applicable to registered 
DCOs,\118\ it supports Core Principle D's requirement that each DCO 
have appropriate tools and procedures to manage the risks associated 
with discharging its responsibilities. In promulgating FERC regulation 
35.47(b), FERC found a shorter cycle necessary to promote market 
liquidity and a necessary change ``to reduce default risk, the costs of 
which would be socialized across market participants and, in certain 
events, of market disruptions that could undermine overall market 
function.'' \119\ Recognizing the correlation between a reduction in 
the length of the ``settlement cycle'' and a reduction in costs 
attributed to a default, FERC stated that shorter cycles reduce the 
amount of unpaid debt left outstanding, which, in

[[Page 52148]]

turn, reduces ``the size of any default and therefore reduces the 
likelihood of the default leading to a disruption in the market such as 
cascading defaults and dramatically reduced market liquidity.'' \120\ 
Thus, FERC regulation 35.47(b) appears to aid RTOs and ISOs in managing 
the risks associated with their responsibilities, which also appears to 
support Core Principle D's goals.
---------------------------------------------------------------------------

    \117\ 18 CFR 35.47(b).
    \118\ See 17 CFR 39.14(b) (requiring daily settlements).
    \119\ FERC Original Order 741 at 65946.
    \120\ Id.
---------------------------------------------------------------------------

    FERC regulation 35.47(d) requires RTOs and ISOs to ensure the 
enforceability of their netting arrangements in the event of the 
insolvency of a member by doing one of the following: (1) Establish a 
single counterparty to all market participant transactions, (2) require 
each market participant to grant a security interest in the receivables 
of its transactions to the relevant RTO or ISO, or (3) provide another 
method of supporting netting that provides a similar level of 
protection to the market that is approved by FERC.\121\ In the 
alternative, the RTOs and ISOs would be prohibited from netting market 
participants' transactions, and required to establish credit based on 
each market participant's gross obligations. Congruent to the 
regulatory objectives of Core Principles D and G, FERC regulation 
35.47(d) attempts to ensure that, in the event of a bankruptcy of a 
participant, ISOs/RTOs are not prohibited from offsetting accounts 
receivable against accounts payable. In effect, this requirement 
attempts to clarify an ISO's or RTO's legal status to take title to 
transactions in an effort to establish mutuality in the transactions as 
legal support for set-off in bankruptcy.\122\ This clarification, in 
turn, would appear to limit an RTO's or ISO's exposure to potential 
losses from defaults by market participants.
---------------------------------------------------------------------------

    \121\ 18 CFR 35.47(d).
    \122\ See 11 U.S.C. 553; see generally In re SemCrude, L.P., 399 
B.R. 388 (Bankr. D. Del. 2009), aff'd, 428 B.R. 590 (D. Del. 2010).
---------------------------------------------------------------------------

    FERC regulation 35.47(e) limits the time period within which a 
market participant must cure a collateral call to no more than two 
days.\123\ This requirement appears to be congruent with Core Principle 
D's requirement that each DCO limit its exposure to potential losses 
from defaults by clearing members. In Original Order 741, FERC stated 
that a two day time period for curing collateral calls balances (1) the 
need for granting market participants sufficient time to make funding 
arrangements for collateral calls with (2) the need to minimize 
uncertainty as to a participant's ability to participate in the market, 
as well as the risk and costs of a default by a participant. By 
requiring each ISO and RTO to include this two day cure period in the 
credit provisions of its tariff language, FERC regulation 35.47(e) 
appears to both promote the active management of risks associated with 
the discharge of an RTO's or ISO's responsibilities, while at the same 
time limiting the potential losses from defaults by market 
participants.
---------------------------------------------------------------------------

    \123\ 18 CFR 35.47(e).
---------------------------------------------------------------------------

    FERC regulation 35.47(f) imposes minimum market participant 
eligibility requirements that apply consistently to all market 
participants and, as set forth in the preamble to Original Order 741, 
requires RTOs and ISOs to engage in periodic verification of market 
participant risk management policies and procedures.\124\ The 
Commission believes that the requirements set forth in FERC regulation 
35.47(f) appear congruent with some of the regulatory objectives of DCO 
Core Principle C, as implemented by Commission regulation 39.12. In 
general, DCO Core Principle C requires each DCO to establish 
appropriate admission and continuing eligibility standards for members 
of, and participants in, a DCO that are objective, publicly disclosed, 
and permit fair and open access.\125\ In addition, Core Principle C 
also requires that each DCO establish and implement procedures to 
verify compliance with each participation and membership requirement, 
on an ongoing basis.\126\ Similarly, while FERC regulation 35.47(f) 
does not prescribe the particular participation standards that must be 
implemented, as suggested in the preamble to Original Order 741, these 
standards should address ``adequate capitalization, the ability to 
respond to ISO/RTO direction and expertise in risk management'' \127\ 
and ensure that proposed tariff language ``is just and reasonable and 
not unduly discriminatory.'' \128\ Moreover, FERC specifically stated 
that these participation standards ``could include the capability to 
engage in risk management or hedging or to out-source this capability 
with periodic compliance verification, to make sure that each market 
participant has adequate risk management capabilities and adequate 
capital to engage in trading with minimal risk, and related costs, to 
the market as a whole.'' \129\ Thus, both DCO Core Principle C and 
Order 741 appear to promote fair and open access for market 
participants as well as impose compliance verification requirements.
---------------------------------------------------------------------------

    \124\ 18 CFR 35.47(f).
    \125\ 7 U.S.C. 7a-1(c)(2)(C).
    \126\ Id.
    \127\ FERC Original Order 741 at 65956.
    \128\ Id.
    \129\ Id.
---------------------------------------------------------------------------

    FERC regulation 35.47(g) requires ISOs and RTOs to specify in their 
tariffs the conditions under which they will request additional 
collateral due to a material adverse change.\130\ FERC, however, noted 
that the examples set forth in each ISO's or RTO's tariffs are not 
exhaustive and that ISOs and RTOs are permitted to use ``their 
discretion to request additional collateral in response to unusual or 
unforeseen circumstances.'' \131\ The Commission believes that the 
requirements set forth in FERC regulation 35.47(g) appear congruent 
with the following DCO Core Principle D requirements: (1) That DCOs 
have appropriate tools and procedures to manage the risks associated 
with discharging its responsibilities, and (2) that DCOs limit their 
exposure to potential losses from defaults by clearing members.\132\ By 
requiring ISOs and RTOs to actively consider the circumstances that 
could give rise to a material adverse change, FERC appears to be 
encouraging RTOs and ISO to actively manage their risks to ``avoid any 
confusion, particularly during times of market duress, as to when such 
a clause may be invoked.'' \133\ Moreover, such clarification could 
prevent a market participant's ability to ``exploit ambiguity as to 
when a market administrator may invoke a `material adverse change,' or 
a market administrator may be uncertain as to when it may invoke a 
`material adverse change,' '' \134\ thereby avoiding potentially 
harmful delays or disruptions that could subject the RTOs and ISOs to 
unnecessary damage.
---------------------------------------------------------------------------

    \130\ 18 CFR 35.47(g).
    \131\ FERC Original Order 741 at 65957.
    \132\ 7 U.S.C. 7a 1(c)(2)(D).
    \133\ FERC Original Order 741 at 65958.
    \134\ Id.
---------------------------------------------------------------------------

    As such, on the basis of the representations contained in the 
Petition, including the fact that, as discussed in further detail 
below, \135\ the Commission is considering whether to require each 
Petitioner, including ERCOT, to comply with, and fully implement, the 
requirements set forth in Order 741 as a prerequisite to the granting 
of a limited 4(c)(6) exemption for the Transactions. The Commission 
seeks comment with respect to this preliminary conclusion.
---------------------------------------------------------------------------

    \135\ See infra text at n. 398.

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[[Page 52149]]

D. DCO Core Principle Analysis

1. DCO Core Principle A: Compliance With Core Principles
    Core Principle A requires a DCO to comply with each core principle 
set forth in section 5b(c)(2) of the CEA, as well as any requirement 
that the Commission may impose by rule or regulation pursuant to 
section 8a(5) of the Act for a DCO to be registered and maintain its 
registration.\136\ In addition, Core Principle A states that a DCO 
shall have reasonable discretion in establishing the manner by which it 
complies with each core principle subject to any rule or regulation 
prescribed by the Commission.\137\
---------------------------------------------------------------------------

    \136\ 7 U.S.C. 7a-1(c)(2)(A)(i).
    \137\ 7 U.S.C. 7a-1(c)(2)(A)(ii).
---------------------------------------------------------------------------

    Petitioners represent that, although they are principally regulated 
by FERC and PUCT and that there are differences between Petitioners and 
registered DCOs, Petitioners' practices are consistent with the core 
principles for DCOs.\138\ Petitioners represent that, though their 
methods are different than those employed by a registered DCO, their 
practices achieve the goals of, and are consistent with, the policies 
of the Act.\139\ Based upon Petitioners' representations and the core 
principle discussions below, and in the context of the Petitioners' 
activities with respect to the Transactions within the scope of this 
Proposed Exemption, Petitioners' practices appear congruent with, and 
to accomplish sufficiently, the regulatory objectives of each DCO core 
principle. The Commission seeks comment with respect to this 
preliminary conclusion.
---------------------------------------------------------------------------

    \138\ Petition Attachments at 1.
    \139\ Id.
---------------------------------------------------------------------------

2. DCO Core Principle B: Financial and Operational Resources
    Core Principle B requires a DCO to have adequate financial, 
operational, and managerial resources to discharge each of its 
responsibilities.\140\ In addition, a DCO must have financial resources 
that, at a minimum, exceed the total amount that would: (i) Enable the 
DCO to meet its financial obligations to its clearing members 
notwithstanding a default by the clearing member creating the largest 
financial exposure for the DCO in extreme but plausible market 
conditions; and (ii) enable the DCO to cover its operating costs for a 
period of 1 year, as calculated on a rolling basis.\141\
---------------------------------------------------------------------------

    \140\ 7 U.S.C. 7a-1(c)(2)(B)(i).
    \141\ 7 U.S.C. 7a-1(c)(2)(B)(ii).
---------------------------------------------------------------------------

a. Financial Resources
    Petitioners represent that they maintain sufficient financial 
resources to meet their financial obligations to their members 
notwithstanding a default by the member creating the largest financial 
exposure for that organization in extreme but plausible market 
conditions.\142\ As an initial matter, Petitioners apply the defaulting 
market participant's collateral to the outstanding obligation.\143\ 
Further, if the collateral is inadequate to cover the obligation, 
Petitioners' tariffs permit them to charge the loss to non-defaulting 
market participants.\144\ For some Petitioners, other resources are 
available. For example, one Petitioner represents that it has the 
ability to draw upon its working capital fund and/or its revolving 
credit facility to ensure that market participants are paid in 
full.\145\ Another Petitioner states that defaults are socialized after 
realizing any collateral specific to the defaulting participant, claims 
paid by third-party default insurance, funds from accrued collected 
penalties for Late Payment Accounts, and, for liquidity purposes, 
third-party financing.\146\
---------------------------------------------------------------------------

    \142\ See Petition Attachments at 3-20.
    \143\ See, e.g., id. at. 4, 8-9, 10, 15, 20.
    \144\ See id. at 4, 8, 10, 13, 15, 20.
    \145\ See id. at 15. The Commission notes Regulation 39.11(b) 
includes the following as financial resources eligible to satisfy a 
DCO's requirement to have sufficient financial resources to cover a 
default by the member creating the largest financial exposure: (a) 
Margin, (b) the DCO's own capital, (c) guaranty fund deposits, (d) 
default insurance, (e) potential assessments for additional guaranty 
fund contributions, if permitted by the DCO's rules, and (f) any 
other financial resource deemed acceptable by the Commission. See 17 
CFR 39.11(b)(1). The Commission notes that the revolving credit 
facility cited by NYISO would not satisfy the financial resource 
requirement, but would be considered in determining liquidity. See 
17 CFR 39.11(e)(1)(iii).
    \146\ See Petition Attachments at 10-11.
---------------------------------------------------------------------------

    In the event that a default occurs and there is inadequate 
collateral for a particular participant, the Petitioners' represent 
that the deficiencies would be addressed by mutualization among the 
non-defaulting participants to whom the Petitioner would otherwise be 
obligated, allocated pursuant to a pre-determined formula that is 
included in each Petitioner's tariff.\147\ This process is often 
referred to as ``short-paying.'' \148\ Once the amount of the default 
is deemed to be uncollectible [by the Petitioner], the short-pay would, 
in some cases, be ``uplifted'' or ``socialized'' across the market, 
with the losses reallocated among all non-defaulting participants.\149\
---------------------------------------------------------------------------

    \147\ See, e.g., id. at 9, 13.
    \148\ See, e.g., id. at 15.
    \149\ See, e.g., id. at 9, 13.
---------------------------------------------------------------------------

    On the basis of these representations, the Commission believes that 
each Petitioner's financial resource requirements appear to be 
congruent with, and to accomplish sufficiently, the regulatory 
objectives of DCO Core Principle B in the context of Petitioners' 
activities with respect to the Transactions. The Commission seeks 
comment with respect to this preliminary conclusion.
b. Operational Resources
    Each Petitioner represents that it has sufficient operational 
resources to cover its operating costs through a charge allocated to 
its participants and set forth in its Tariffs, which are approved by 
FERC and PUCT, as applicable.\150\ Petitioners represent that the 
charge is based on expected costs for the following year.\151\ Under 
the regulatory structure in the wholesale electric industry, market 
participants are obligated to pay the fees required by the 
Petitioners,\152\ and are thus, in a sense, a ``captive audience.'' 
Moreover, since market participant defaults are mutualized amongst the 
non-defaulting participants,\153\ Petitioners represent that such 
defaults would not impair their ability to cover their operating costs, 
because the Petitioners would continue to collect sufficient funds from 
all other market participants to pay such operating expenses.\154\ 
Therefore, these policies and procedures appear to be consistent with, 
and to accomplish sufficiently, the regulatory objectives of DCO Core 
Principle B in the context of the Transactions. The Commission seeks 
comment with respect to this preliminary conclusion.
---------------------------------------------------------------------------

    \150\ See id. at 3-20. Some Petitioners state that the charge is 
allocated to their market participants based on the level of their 
usage of the Petitioner's services or on the volume of their market 
transactions. See, e.g., id. at 4, 13, and 20.
    \151\ See, e.g., id. at 4, 10, 16.
    \152\ See, e.g., id. at 16, 20.
    \153\ See id. at 4-20.
    \154\ See id. at 16.
---------------------------------------------------------------------------

c. Managerial Resources
    Each of the Petitioners represents that it has adequate managerial 
resources to discharge its responsibilities as an organized wholesale 
electricity market.\155\ The Commission notes that FERC Order No. 888 
sets forth the principles used by FERC to assess ISO proposals and 
requires that ISOs have appropriate incentives for efficient management 
and administration.\156\ This requirement provides that ISOs should 
procure the services needed for such management and administration in 
an open competitive market, similar to how Core Principle B requires a 
DCO to possess managerial resources necessary

[[Page 52150]]

to discharge each responsibility of the DCO. Similarly, with respect to 
ERCOT, PUCT's Substantive Rules require that ERCOT's Enterprise Risk 
Management Group has adequate resources to perform its functions, which 
includes assessing market participant creditworthiness.\157\
---------------------------------------------------------------------------

    \155\ See id. at 3-20.
    \156\ See generally FERC Order 888 at 21540.
    \157\ P.U.C. SUBST. R. 25.361(b). See also Petition Attachments 
at 7-8.
---------------------------------------------------------------------------

    In addition, FERC Order No. 2000 requires that RTOs have an open 
architecture so that the RTO and its members have the flexibility to 
improve their organizations in the future in terms of structure, 
geographic scope, market support and operations in order to adapt to an 
environment that is rapidly changing and meet market needs.\158\
---------------------------------------------------------------------------

    \158\ Id. at 502.
---------------------------------------------------------------------------

    Petitioners represent that they maintain the staff and labor 
necessary to fulfill their obligations and responsibilities, and only 
employ persons who are appropriately qualified, skilled and experienced 
in their respective trades or occupations \159\ Based on these 
representations, the Petitioners managerial resources appear to be 
consistent with, and to accomplish sufficiently, the regulatory 
objectives of DCO Core Principle B in the context of the Transactions. 
The Commission seeks comment with respect to this preliminary 
conclusion.
---------------------------------------------------------------------------

    \159\ See Petition Attachments at 3-20.
---------------------------------------------------------------------------

3. DCO Core Principle C: Participant and Product Eligibility
    DCO Core Principle C requires each DCO to establish appropriate 
admission and continuing eligibility standards for member and 
participants (including sufficient financial resources and operational 
capacity), as well as to establish procedures to verify, on an ongoing 
basis, member and participant compliance with such requirements.\160\ 
The DCO's participant and membership requirements must also be 
objective, be publicly disclosed, and permit fair and open access.\161\ 
In addition, Core Principle C obligates each DCO to establish 
appropriate standards for determining the eligibility of agreements, 
contracts, or transactions submitted to the DCO for clearing.\162\
---------------------------------------------------------------------------

    \160\ 7 U.S.C. 7a-1(c)(2)(C).
    \161\ Id.
    \162\ Id. As set forth above, the exemption that would be 
provided by the Proposed Exemption would be available only with 
respect to the transactions specifically delineated therein. 
Accordingly, the DCO Core Principle C analysis is limited to a 
discussion of the Petitioners' participant eligibility requirements.
---------------------------------------------------------------------------

a. FERC Credit Policy Requirements
    As discussed above, the FERC Credit Policy appears to impose 
participant eligibility requirements that are consistent with 
regulatory objectives of DCO Core Principle C.\163\ In the FERC Credit 
Policy, FERC notes that ``[h]aving minimum criteria in place can help 
minimize the dangers of mutualized defaults posed by inadequately 
prepared or under-capitalized participants.'' \164\ Specifically, FERC 
regulation 35.47(f) requires organized wholesale electric markets to 
adopt tariff provisions that require minimum market participant 
eligibility criteria.\165\ Though the regulation does not prescribe the 
particular participation standards that must be implemented; in the 
rule's preamble, FERC suggests that such standards should address 
``adequate capitalization, the ability to respond to ISO/RTO direction 
and expertise in risk management.'' \166\ Regarding risk management, 
FERC further suggests that minimum participant eligibility criteria 
should ``include the capability to engage in risk management or hedging 
or to out-source this capability with periodic compliance 
verification.'' \167\ Although market participant criteria may vary 
among different types of market participants, all market participants 
must be subject to some minimum criteria.\168\ An RTO or ISO subject to 
FERC's supervision is obligated to establish market participant 
criteria, even if the RTO or ISO applies vigorous standards in 
determining the creditworthiness of its market participants.\169\
---------------------------------------------------------------------------

    \163\ See, supra n. 127 and accompanying text.
    \164\ FERC Original Order 741 at 665955.
    \165\ 18 CFR 35.47(f).
    \166\ FERC Original Order 741 at 665956.
    \167\ Id.
    \168\ Although the FERC Credit Policy states that FERC ``directs 
that [the market participation criteria] apply to all market 
participants rather than only certain participants,'' FERC clarified 
this comment in its Order of Rehearing by stating that its intent 
``was that there be minimum criteria for all market participants and 
not that all market participants necessarily be held to the same 
criteria'' based upon, for example, the size of the participant's 
positions. See FERC Revised Order 741 at n. 43. This approach 
appears to be consistent with Commission regulation 39.12, which 
implements Core Principle C and requires that participation 
requirements for DCO members be risk-based.
    \169\ See FERC Original Order 741 at 665956 (noting that ``An 
ISO or RTO's ``ability to accurately assess a market participant's 
creditworthiness is not infallible'' and ``[w]hile an analysis of 
creditworthiness may capture whether the market participant has 
adequate capital, it may not capture other risks, such as whether 
the market participant has adequate expertise to transact in an RTO/
ISO market.'').
---------------------------------------------------------------------------

    Because the minimum participation criteria that will be adopted by 
Petitioners will be included in their respective tariffs, which are 
publicly available on each Petitioner's Web site, such criteria will be 
publicly disclosed. In addition, FERC notes that it reviews proposed 
tariff language ``to ensure that it is just and reasonable and not 
unduly discriminatory,'' \170\ which practice would appear to be 
consistent with DCO Core Principle C's directive that market 
participation standards permit fair and open access.
---------------------------------------------------------------------------

    \170\ Id.
---------------------------------------------------------------------------

b. The Petitioners' Representations
    Each Petitioner represents that it either has adopted minimum 
participant eligibility criteria or is in the process of establishing 
minimum participant eligibility criteria \171\ that include 
capitalization requirements (which may provide for the posting of 
additional collateral by less-well-capitalized members). The 
capitalization requirements appear to be risk-based in that the 
requirements may vary by type of market and/or type or size of 
participant.\172\ In addition, some Petitioners require that 
participants in certain markets satisfy specified credit 
requirements,\173\ as well as standards related to risk 
management,\174\ training and testing,\175\ and the disclosure of 
material litigation or regulatory sanctions, bankruptcies, mergers, 
acquisitions, and activities in the wholesale electricity market.\176\ 
Petitioners also represent that they impose operational capability 
requirements,\177\ and either maintain tariffs, or have filed proposed 
amendments to their existing tariffs, that incorporate requirements 
that would enable Petitioners to periodically verify the risk 
management standards and procedures of market participants.\178\ This 
verification may be required on either a random basis or based upon 
identified risks. Furthermore, some Petitioners require attestations of 
continued compliance with other elements of their participation 
eligibility criteria.\179\
---------------------------------------------------------------------------

    \171\ See Petition Attachments at 22-54.
    \172\ See id. at 22-54.
    \173\ See, e.g., id. at 22 (CAISO requires CRR holders to have a 
minimum amount of available credit in order to participate in a CRR 
auction).
    \174\ See id. at 23, 35, 44-45.
    \175\ See id. at 22, 35, 44.
    \176\ See id. at 33.
    \177\ See id. at 23, 37-38, 39, 48.
    \178\ See id. at 23, 35-36, 38, 44-45, 49.
    \179\ For example, CAISO requires market participants to attest 
annually that they satisfy CAISO's minimum participation 
requirements related to capitalization, training and the operational 
capability to comply with CAISO's direction. See id. at 23. 
Similarly, ISO NE requires that each market participant annually 
submit a certificate that attests that the participant has 
procedures to effectively communicate with ISO NE and that it has 
trained personnel related to its participation in the relevant 
markets. See id. at 35.

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[[Page 52151]]

    ERCOT asserts that it is in the process of developing new 
eligibility requirements through its stakeholder process, that, as 
proposed, would require relevant market participants to (i) satisfy 
minimum capitalization requirements or post additional security, (ii) 
have appropriate expertise in the market, (iii) maintain a risk 
management framework appropriate to the ERCOT markets in which it 
transacts, (iv) have appropriate operational capability to respond to 
ERCOT direction, and (v) have the market participant's officer certify, 
on an annual basis, that the participant eligibility requirements are 
met.\180\
---------------------------------------------------------------------------

    \180\ See Petition Attachments at 27. See also FERC Order 741 
Implementation Chart filed by petitioners as a supplement to the 
Petition (herein after, ``FERC Order 741 Implementation Chart''), 
available at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/iso-rto4cappfercchart.pdf.
---------------------------------------------------------------------------

    It appears from the foregoing that Petitioners' arrangements with 
respect to participant eligibility requirements are (or will be) 
congruent with, and sufficiently accomplish, the regulatory objectives 
of Core Principle C in the context of Petitioners' activities with 
respect to the Transactions. The Commission seeks comment with respect 
to this preliminary conclusion.
4. DCO Core Principle D: Risk Management
    DCO Core Principle D requires each DCO to demonstrate the ability 
to manage the risks associated with discharging the responsibilities of 
a DCO through the use of appropriate tools and procedures.\181\ As 
amended by the Dodd-Frank Act, Core Principle D also requires a DCO to: 
(1) Measure and monitor its credit exposures to each clearing member 
daily; (2) through margin requirements and other risk control 
mechanisms, limit its exposure to potential losses from a clearing 
member default; (3) require sufficient margin from its clearing members 
to cover potential exposures in normal market conditions; and (4) use 
risk-based models and parameters in setting margin requirements that 
are reviewed on a regular basis.\182\
---------------------------------------------------------------------------

    \181\ 7 U.S.C. 7a-1(c)(2)(D).
    \182\ 7 U.S.C. 7a-1(c)(2)(D).
---------------------------------------------------------------------------

a. Risk Management Framework
    Each Petitioner represents that it has established policies and 
procedures designed to minimize risk.\183\ As part of the tools and 
procedures that RTOs and ISOs use to manage the risks associated with 
their activities, FERC regulation 35.47(b) mandates that RTOs and ISOs 
have billing periods and settlement periods of no more than seven 
days.\184\ As discussed above, FERC found a shorter cycle necessary to 
promote market liquidity and a necessary change ``to reduce default 
risk, the costs of which would be socialized across market participants 
and, in certain events, of market disruptions that could undermine 
overall market function.'' \185\ Recognizing the correlation between a 
reduction in the ``settlement cycle'' and a reduction in costs 
attributed to a default, FERC stated that shorter cycles reduce the 
amount of unpaid debt left outstanding, which, in turn, reduces ``the 
size of any default and therefore reduces the likelihood of the default 
leading to a disruption in the market such as cascading defaults and 
dramatically reduced market liquidity.'' \186\ Most of the Petitioners 
represent that they have, or expect to have, final tariffs in place 
that limit billing periods and settlement periods to no more than seven 
days.\187\
---------------------------------------------------------------------------

    \183\ See Petition Attachments at 56-92.
    \184\ 18 CFR 35.47(b).
    \185\ FERC Original Order 741 at 65946.
    \186\ Id.
    \187\ See FERC Order 741 Implementation Chart. As stated above, 
ERCOT is not required, by law, to comply with Order 741. 
Nonetheless, Petitioners represent that ERCOT will shorten its 
payment and settlement cycle to no more than 15 days. See infra nn. 
212-213 and accompanying text.
---------------------------------------------------------------------------

    In addition, an ISO's or RTO's participation standards can include 
the supervision of a market participant's risk management program.\188\ 
As discussed in section V.C., FERC Order 741 states that an ISO or RTO 
could include periodic verification of market participant's capability 
to engage in risk management or hedging or to out-source that 
capability ``to make sure each market participant has adequate risk 
management capabilities and adequate capital to engage in trading with 
minimal risk, and related costs, to the market as a whole.'' \189\ Each 
Petitioner regulated by FERC represents that it either has a 
verification program in place or has submitted necessary Tariffs for 
approval to establish a verification program.\190\ ERCOT also has 
proposed participant eligibility requirements that would subject 
participants' risk management framework to verification by ERCOT, 
unless that framework has been deemed sufficient for transacting in 
another U.S. RTO or ISO market in accordance with a FERC-approved 
tariff or in accordance with the Federal Reserve Bank Holding Company 
Supervision Manual. The proposed requirements currently are under 
review in the ERCOT stakeholder process.\191\ On the basis of the 
representations contained in the Petition, it appears that these 
policies and procedures, are (or will be, assuming they are 
implemented) congruent with, and will sufficiently accomplish, the 
regulatory objectives of DCO Core Principle D. The Commission seeks 
comment with respect to this conclusion.
---------------------------------------------------------------------------

    \188\ See n. 126 and accompanying text.
    \189\ See FERC Original Order 741 at 65946.
    \190\ See FERC Order 741 Implementation Chart at 11-12.
    \191\ Id.
---------------------------------------------------------------------------

b. Measurement and Monitoring of Credit Exposure
    Petitioners represent that their risk management procedures 
measure, monitor, and mitigate their credit exposure to market 
participants.\192\ In addition, most Petitioners state that they 
calculate credit exposure daily.\193\ It appears that, for the most 
part, given the unique characteristics of the wholesale electric 
markets, and particularly those of the FTR and equivalent markets, the 
practices specified in the Petition appear congruent with, and to 
accomplish sufficiently, DCO Core Principle D's objective that a DCO 
measure its credit exposure to each of its clearing members. The 
Commission seeks comment with respect to this preliminary conclusion, 
including comment on whether any different or additional practices 
should be implemented as a condition of issuance of the Proposed 
Exemption.
---------------------------------------------------------------------------

    \192\ See Petition Attachments at 56-92.
    \193\ See id. Petitioners further represent that the value of 
exposure to FTRs is determined by the price of physical electricity 
during the days and hours for which the FTR is effective. See id. In 
addition, petitioners represent that CAISO- updates credit exposures 
for CRR's that are expected to generate a charge to the CRR holder 
on at least a monthly basis. See id. at 59-60. But see id. at 84-85 
(representing that PJM calculates credit exposure for FTRs on a 
monthly basis because daily measurement and intraday monitoring of 
credit exposure is not practical for FTRs due to the low liquidity 
and other unique attributes of the FTR markets).
---------------------------------------------------------------------------

c. Unsecured Credit
    Petitioners represent that a market participant is required to 
obtain unsecured credit lines from an RTO or ISO (limited as discussed 
below) and/or post financial security that is sufficient to meet the 
participant's estimated aggregate liability \194\ or financial 
obligations.\195\ FERC regulation 35.47(a)

[[Page 52152]]

requires RTOs and ISOs to have tariff provisions that ``[l]imit the 
amount of unsecured credit extended by [an RTO or ISO] to no more than 
$50 million for each market participant.'' As mentioned above,\196\ in 
capping the use of unsecured credit at $50 million, FERC stated its 
belief that RTOs and ISOs ``could withstand a default of this magnitude 
by a single market participant,'' therein limiting an RTO's or ISO's 
exposure to potential losses from defaults by its market participants. 
Petitioners represent that they have tariff provisions that comply with 
FERC regulation 35.47(a).\197\ Moreover, FERC regulation 35.47(c) 
prohibits the use of unsecured credit in the FTR markets and equivalent 
markets because, according to FERC, risks arising out of the FTR 
markets are ``difficult to quantify,'' and eliminating the use of 
unsecured credit in these markets avoids the unforeseen and substantial 
costs for an RTO or ISO in the event of a default. Petitioners state 
that they have in place or have proposed tariff revisions to comply 
with FERC regulation 35.47(c).\198\
---------------------------------------------------------------------------

    \194\ A participant's estimated credit exposure to an RTO or ISO 
is called such participant's estimated aggregate liability or 
``EAL.'' The EAL calculation is based on a number of variables, 
which vary among Petitioners. See id. at 56-92.
    \195\ The Commission notes that NYISO establishes separate 
credit requirements for each of its product and service categories 
and requires each Market Participant to maintain financial security 
(e.g., cash, letter of credit, or surety bond) that is sufficient at 
all times to meet each separate credit requirement. See id. at 84.
    \196\ See supra at n. 115.
    \197\ See FERC Order 741 Implementation Chart at 2-3.
    \198\ See id. at 4-5.
---------------------------------------------------------------------------

    Since FERC regulations 35.47(a) and 35.47(c) appear to manage risk 
and limit an RTO's or ISO's exposure to potential losses from a market 
participant, these requirements would appear to be congruent with, and, 
assuming Petitioners' proposed tariff revisions are implemented, to 
accomplish sufficiently, the regulatory objectives of Core Principle D 
in the context of Petitioners' activities with respect to the 
Transactions. The Commission seeks comment with respect to this 
preliminary conclusion.
d. Limiting Exposure to Potential Losses Through Use of Risk Control 
Mechanisms and Grace Period To Cure
    Each Petitioner represents that it requires a market participant to 
post additional financial security (collateral) whenever the 
participant's estimated aggregate liability or credit exposure equals 
or exceeds that participant's unsecured credit and posted financial 
security.\199\ Moreover, FERC regulation 35.47(e) limits the time 
period by which a market participant must cure a collateral call to no 
more than two days. In Original Order 741, FERC stated that a two day 
time period for curing collateral calls balances the need for granting 
market participants sufficient time to make funding arrangements for 
collateral calls with the need to minimize uncertainty as to a 
participant's ability to participate in the market as well as the risk 
and costs of a default by a participant. By requiring each RTO and ISO 
to include this two day cure period in its tariff provisions, FERC 
regulation 35.47(e) appears to both promote the active management of 
risks associated with the discharge of an RTO's or ISO's 
responsibilities, while at the same time limiting the potential losses 
from defaults by market participants. Petitioners represent that each 
of them has implemented this requirement.\200\ In the event that a 
market participant fails to post additional financial security in 
response to a request from an RTO or ISO, or fails to do so within the 
requisite two day period, Petitioners represent that they have a wide 
array of remedies available, including bringing an enforcement action 
and assessing a variety of sanctions against the market 
participant.\201\ On the basis of these representations, it appears 
that the requirements to post additional financial security and cure 
collateral calls in no more than two days help Petitioners manage risk 
and limit their exposure against potential losses from a market 
participant. These requirements appear to be congruent with, and to 
accomplish sufficiently, the regulatory objectives of DCO Core 
Principle D in the context of Petitioners' activities with respect to 
the Transactions. The Commission seeks comment with respect to this 
preliminary conclusion.
---------------------------------------------------------------------------

    \199\ See Petition Attachments at 56-92.
    \200\ See FERC Order 741 Implementation Chart at 7.
    \201\ See, e.g., Petition Attachments at 56-57, 69-70, 76-77.
---------------------------------------------------------------------------

e. Calls for Additional Collateral due to a Material Adverse Change
    FERC regulation 35.47(g) requires ISOs and RTOs to specify in their 
tariffs the conditions under which they will request additional 
collateral due to a material adverse change. However, as stated by 
FERC, this list of conditions is not meant to be exhaustive, and ISOs 
and RTOs are permitted to use ``their discretion to request additional 
collateral in response to unusual or unforeseen circumstances.'' \202\ 
Petitioners represent that they have tariffs that comply with these 
requirements.\203\ Since Petitioners do not appear to be limited in 
their ability to call for additional collateral in unusual or 
unforeseen circumstances, FERC regulation 35.47(g) appears to support 
some of DCO Core Principle D's objectives, namely that a DCO have 
appropriate tools and procedures to manage the risks associated with 
discharging its responsibilities, and that a DCO limit its exposure to 
potential losses from defaults by clearing members. FERC has noted that 
information regarding when an ISO or RTO will request additional 
collateral due to a material adverse change may help to ``avoid any 
confusion, particularly during times of market duress, as to when such 
a clause may be invoked,'' \204\ while at the same time preventing a 
market participant from ``exploit[ing] ambiguity as to when a market 
administrator may invoke a `material adverse change.''' \205\ As such, 
this policy appears to help avoid potentially harmful delays or 
disruptions that could subject the RTOs and ISOs to unnecessary damage, 
and thus is congruent with, and to accomplish sufficiently, the 
regulatory objectives of Core Principle D in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
---------------------------------------------------------------------------

    \202\ FERC Original Order 741 at 65957.
    \203\ See FERC Order 741 Implementation Chart.
    \204\ FERC Original Order 741 at 65958.
    \205\ Id. at 65958.
---------------------------------------------------------------------------

f. Margin Requirement and Use of Risk-Based Models and Parameters in 
Setting Margin
    As discussed previously, Petitioners represent that each Petitioner 
requires that market participants maintain unsecured credit and/or post 
financial security (collectively, ``margin'') that is sufficient to 
meet their estimated aggregate liability or financial obligations at 
all times,\206\ although estimated aggregate liability calculations 
appear to vary among Petitioners and among products within a particular 
Petitioner's markets.\207\ As represented by Petitioners, these 
practices seem to be congruent with, and to accomplish sufficiently, 
the regulatory objectives of DCO Core Principle D in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks

[[Page 52153]]

comment with respect to this preliminary conclusion.
---------------------------------------------------------------------------

    \206\ See Petition Attachments at 56-92.
    \207\ For example, one Petitioner states that its margin 
requirements are calculated using historical data and estimates of 
potential future exposure for the purposes of minimizing default 
exposure, but notes that the mechanics of the potential future 
exposure estimates ``vary depending on the market.'' See id. at 77. 
It maintains customized approaches to margining particular market 
activity, including separate and distinct margining models for the 
FTR Market and the Forward Capacity Market (both the buy side and 
the sell side). Id. at 77-78 Similarly, another Petitioner states 
that its credit requirements are derived from historical data from 
the past three years for FTRs, but from the past one year for other 
transactions. Id. at 91-92.
---------------------------------------------------------------------------

g. Ability To Offset Market Obligations
    FERC regulation 35.47(d) requires RTOs and ISOs to either (1) 
establish a single counterparty to all market participant transactions, 
(2) require each market participant to grant a security interest in the 
receivables of its transactions to the relevant RTO or ISO, or (3) 
provide another method of supporting netting that provides a similar 
level of protection to the market that is approved by FERC. Otherwise, 
RTOs and ISOs are prohibited from netting market participants' 
transactions and required to establish credit based on market 
participants' gross obligations. FERC regulation 35.47(d), which 
attempts to ensure that, in the event of a bankruptcy, ISOs and RTOs 
are not prohibited from offsetting accounts receivable against accounts 
payable, is congruent with the regulatory objectives of Core Principle 
D. In effect, this requirement appears to attempt to clarify an ISO's 
or RTO's legal status to take title to transactions in an effort to 
establish mutuality in the transactions as legal support for set-off in 
bankruptcy.\208\ This clarification, in turn, would seem to limit an 
RTO's or ISO's exposure to potential losses from defaults by market 
participants.
---------------------------------------------------------------------------

    \208\ See supra n. 122.
---------------------------------------------------------------------------

    Petitioners have represented that they either are, or plan on 
becoming, central counterparties.\209\ Though there appears to be 
strong support for the proposition that the central counterparty 
structure \210\ would give rise to enforceable rights of setoff of the 
central counterparty, the Commission believes it would be in the public 
interest to have further clarity regarding whether a Petitioner's 
chosen approach to comply with FERC regulation 35.47(d) grants 
sufficient certainty regarding the ability to enforce setoff rights. As 
such, the Commission proposes that, as a prerequisite to the granting 
of the 4(c)(6) request, each Petitioner must submit a well-reasoned 
legal memorandum from, or a legal opinion of, outside counsel that, in 
the Commission's sole discretion, provides the Commission with adequate 
assurance that the approach selected by the Petitioner will in fact 
provide the Petitioner with set-off rights in a bankruptcy proceeding.
---------------------------------------------------------------------------

    \209\ See FERC Order 741 Implementation Chart at 5-6.
    \210\ A central counterparty is, within a particular market, the 
buyer to every seller and the seller to every buyer. See Principles 
for Financial Market Infrastructures ] 1.13 (CPSS-IOSCO 2012).
---------------------------------------------------------------------------

    Subject to this condition, compliance with FERC regulation 35.47(d) 
appears to be congruent with, and to accomplish sufficiently, Core 
Principle D's regulatory objectives in the context of Petitioners' 
activities with respect to the Transactions. The Commission seeks 
comment with respect to this preliminary conclusion. The Commission 
also seeks comment with respect to the proposed prerequisite of 
assurance that the Petitioners can in fact exercise setoff rights in 
the event of the bankruptcy of a participant.
5. DCO Core Principle E: Settlement Procedures
    Among the requirements set forth by Core Principle E are the 
requirements that a DCO (a) have the ability to complete settlements on 
a timely basis under varying circumstances, and (b) maintain an 
adequate record of the flow of funds associated with each transaction 
that the DCO clears.\211\
---------------------------------------------------------------------------

    \211\ 7 U.S.C. 7a-1(d)(92)(i)-(ii).
---------------------------------------------------------------------------

    Petitioners represent that they have policies and procedures that 
contain detailed procedures regarding data and record-keeping, and 
that, with the exception of ERCOT, they have, or will soon have, 
billing periods and settlement periods of no more than seven days each 
(for a total of 14 days).\212\ ERCOT is in the process of implementing 
changes by which the weighted average billing and settlement cycle will 
be less than 15 days.\213\ While this approach does not meet the 
standards applicable to registered DCOs,\214\ it appears to be 
congruent with, and to accomplish sufficiently, the regulatory 
objectives of DCO Core Principle E in the context of Petitioners' 
activities with respect to the Transactions. The Commission seeks 
comment on this preliminary conclusion.
---------------------------------------------------------------------------

    \212\ See Petition Attachments at 94-103.
    \213\ Under these arrangements, the time between Operating Day 
and payment will be 13 days or less for all transactions in the Day-
Ahead Market, and will be 15 days or less for 90% of transactions in 
the Real Time Market. See id. at 96.
    \214\ See 17 CFR 39.14(b) (requiring daily settlements).
---------------------------------------------------------------------------

6. DCO Core Principle F: Treatment of Funds
    Core Principle F requires a DCO to have standards and procedures 
designed to protect and ensure the safety of member and participant 
funds, to hold such funds in a manner that would minimize the risk of 
loss or delay in access by the DCO to the funds, and to invest such 
funds in instruments with minimal credit, market, and liquidity 
risks.\215\
---------------------------------------------------------------------------

    \215\ 7 U.S.C. 7a-1(c)(2)(F).
---------------------------------------------------------------------------

    Petitioners represent that they have tariff provisions and related 
governing documents that accomplish the regulatory goals of DCO Core 
Principle F.\216\ For example, CAISO represents that its tariffs 
require it to maintain specified types of separate accounts for funds 
it receives or holds, including segregated and aggregated market 
clearing accounts.\217\ Similarly, MISO represents that its tariffs 
require MISO to hold all monies deposited by its participants (whom 
MISO refers to as ``Tariff Customers'') as financial assurance in a 
separate, interest-bearing money market account with one-hundred 
percent of the interest earned accruing to the benefit of the Tariff 
Customer.\218\ The other Petitioners represent that they have 
appropriate investment policies or practices, such as segregation 
requirements and/or limitations on investment options.\219\ As 
represented by Petitioners, these practices appear congruent with, and 
to accomplish sufficiently, the regulatory objectives of DCO Core 
Principle F in the context of Petitioners' activities with respect to 
the Transactions. The Commission seeks comment with respect to this 
preliminary conclusion.
---------------------------------------------------------------------------

    \216\ See Petition Attachments at 105-110.
    \217\ See id. at 105.
    \218\ See id. at 108.
    \219\ See id. at 105-110.
---------------------------------------------------------------------------

7. DCO Core Principle G: Default Rules and Procedures
    Core Principle G requires a DCO to have rules and procedures 
designed to allow for the efficient, fair, and safe management of 
events when members or participants become insolvent or otherwise 
default on their obligations to the DCO.\220\ Core Principle G also 
requires a DCO to clearly state its default procedures, make publicly 
available its default rules, and ensure that it may take timely action 
to contain losses and liquidity pressures and to continue meeting each 
of its obligations.\221\
---------------------------------------------------------------------------

    \220\ 7 U.S.C. 7a-1(c)(2)(G)(i).
    \221\ 7 U.S.C. 7a-1(c)(2)(G)(ii).
---------------------------------------------------------------------------

a. General Default Procedures
    Each Petitioner represents that it has procedures in its tariffs or 
other governing documents that address events surrounding the 
insolvency or default of a market participant.\222\ For example, 
Petitioners represent that such documents identify events of default 
(e.g. failure to make payments when due, failure to support an 
estimated liability with adequate security, events of insolvency, and 
failure to perform other obligations under the tariff), describe the 
cure period associated with

[[Page 52154]]

an event of default, and describe the actions to be taken in the event 
of default and/or detail each Petitioners' remedies--which may include, 
among other things, termination of services and/or agreements, 
initiation of debt collection procedures and levying financial 
penalties.\223\ As detailed above, in the event that the remedies 
outlined in each Petitioner's governing documents are insufficient to 
timely cure a default, Petitioners have the right to socialize losses 
from the default among other market participants by, for example, 
``short-paying'' such other participants.\224\
---------------------------------------------------------------------------

    \222\ See generally Petition Attachments at 112-126.
    \223\ Id.
    \224\ See supra at n. 149 and accompanying text. See also, e.g., 
Petition at 71.
---------------------------------------------------------------------------

b. Setoff
    Generally speaking, it is a well-established tenet of clearing that 
a DCO acts as the buyer to every seller and as the seller to every 
buyer, thereby substituting the DCO's credit for bilateral counter-
party risk. As such, when a DCO is involved, there is little question 
as to the identity of a counterparty to a given transaction. However, 
because ISOs and RTOs can act as agents for their participants, there 
could be ambiguity as to the identity of a counterparty to a given 
transaction. As a result, in the event of a bankruptcy of a market 
participant and in the event of a lack of the mutuality of obligation 
required by the Bankruptcy Code,\225\ an ISO or RTO may be liable to 
pay a bankrupt market participant for transactions in which that 
participant is owed funds, without the ability to offset amounts owed 
by that participant with respect to other transactions. Stated 
differently, although the defaulting market participant may owe money 
to the ISO or RTO, if the ISO or RTO also owes money to such 
participant, the ISO or RTO may be required to pay the defaulting 
participant the full amount owed without being able to offset the 
amounts owed by that participant to the ISO or RTO, which latter 
amounts may be relegated to claims in the bankruptcy proceedings. As 
more fully described in section V.D.4.g., the requirement that 
Petitioners provide memoranda or opinions of counsel as discussed 
therein is intended to address this issue.
---------------------------------------------------------------------------

    \225\ See 11 U.S.C. 553.
---------------------------------------------------------------------------

    The foregoing arrangements appear congruent to, and to accomplish 
sufficiently, the regulatory objectives of DCO Core Principle G in the 
context of Petitioners' activities with respect to the Transactions. 
The Commission seeks comment with respect to this preliminary 
conclusion.
8. Core Principle H: Rule Enforcement
    Core Principle H requires a DCO to (1) maintain adequate 
arrangements and resources for the effective monitoring and enforcement 
of compliance with its rules and for resolution of disputes, (2) have 
the authority and ability to discipline, limit, suspend, or terminate a 
clearing member's activities for violations of those rules, and (3) 
report to the Commission regarding rule enforcement activities and 
sanctions imposed against members and participants.\226\
---------------------------------------------------------------------------

    \226\ 7 U.S.C. 7a-1(c)(2)(H).
---------------------------------------------------------------------------

    Each Petitioner represents that it maintains tariffs or procedures 
or is subject to a regulatory framework that accomplishes the 
regulatory goals of DCO Core Principle H. Petitioners have, e.g., the 
power to take a range of actions against participants that fail to pay, 
pay late, or fail to post financial security. \227\
---------------------------------------------------------------------------

    \227\ See generally, Petition Attachments at 128-150.
---------------------------------------------------------------------------

    Based on Petitioners' representations, it appears that these 
practices are congruent with, and sufficiently accomplish, the 
regulatory objectives of DCO Core Principle H in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
9. DCO Core Principle I: System Safeguards
    Core Principle I requires a DCO to demonstrate that: (1) It has 
established and will maintain a program of oversight and risk analysis 
to ensure that its automated systems function properly and have 
adequate capacity and security, and (2) it has established and will 
maintain emergency procedures and a plan for disaster recovery and will 
periodically test backup facilities to ensure daily processing, 
clearing and settlement of transactions.\228\ Core Principle I also 
requires that a DCO establish and maintain emergency procedures, backup 
facilities, and a plan for disaster recovery that allows for the timely 
recovery and resumption of the DCO's operations and the fulfillment of 
each of its obligations and responsibilities.\229\
---------------------------------------------------------------------------

    \228\ 7 U.S.C. 7a-1(c)(2)(I)(i)-(ii).
    \229\ 7 U.S.C. 7a-1(c)(2)(I)(iii).
---------------------------------------------------------------------------

    Petitioners represent that they have policies and procedures that 
accomplish the regulatory goals of DCO Core Principle I,\230\ albeit in 
a manner that is somewhat different than the way in which a DCO 
complies with DCO Core Principle I. This is because Petitioners are 
also responsible for managing power reliably and, thus, require 
additional operational safeguards to specifically address that 
function. For example, NYISO is subject to reliability rules 
established by the New York State Reliability Council, Northeast Power 
Coordinating Council, and the North American Electric Reliability 
Corporation.\231\ In order to comply with these rules, NYISO has 
procedures in place to address emergency situations and maintains an 
alternate control center and back-up computer systems and data centers 
at a separate location.\232\ NYISO also performs internal and external 
audits to ensure its internal controls, procedures, and business 
processes comply with accepted standards.\233\ The other Petitioners 
represent that they have similar procedures and practices such as, 
computer back-up systems, operate multiple control and data centers, 
dedicate resources to internal audit and security teams, and maintain 
disaster recovery plans designed to address operational, physical, and 
cyber security events.\234\
---------------------------------------------------------------------------

    \230\ See generally Petition Attachments at 152-158.
    \231\ See id. at 157.
    \232\ See id.
    \233\ See id.
    \234\ See id. at 152, 156, 158.
---------------------------------------------------------------------------

    Based on Petitioners' representations, it appears that these system 
safeguard practices are congruent with, and accomplish sufficiently, 
the regulatory objectives of DCO Core Principle I in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
10. DCO Core Principle J: Reporting
    Core Principle J requires a DCO to provide to the Commission all 
information that the Commission determines to be necessary to conduct 
oversight of the DCO.\235\ With the exception of ERCOT, Petitioners 
represent that, pursuant to their Tariffs and other FERC orders, FERC 
has access to the information that it would need to oversee the 
Petitioners.\236\ With respect to ERCOT, ERCOT represents that the PURA 
and PUCT Substantive Rules require it to provide information to the 
PUCT on request.\237\ ERCOT also represents that its Bylaws require 
ERCOT corporate members to provide information to ERCOT.\238\ In 
addition, according to ERCOT, the ERCOT Protocols require ERCOT to 
manage

[[Page 52155]]

confidential information, but enable ERCOT to release confidential 
information to government officials if required by law, regulation or 
order.\239\ As noted above, the Commission is proposing to condition 
this exemptive order on the completion of an appropriate information 
sharing agreement between the Commission and PUCT.
---------------------------------------------------------------------------

    \235\ 7 U.S.C. 7a-1(c)(2)(J).
    \236\ See generally Petition Attachments at 160-166.
    \237\ See id. at 161-162. PURA 39.151(d), P.U.C. SUBST. R. 
25.362(e)(1)(B) and 25.503(f)(8).
    \238\ See Petition Attachments at 161-162.
    \239\ See id.
---------------------------------------------------------------------------

    Based on the foregoing, including Petitioners' representations, it 
appears that these practices are congruent with, and sufficiently 
accomplish, the regulatory objectives of Core Principle J in the 
context of Petitioners' activities with respect to the Transactions. 
The Commission seeks comment with respect to this preliminary 
conclusion.
11. Core Principle K: Recordkeeping
    Core Principle K requires a DCO to maintain records of all 
activities related to its business as a DCO in a form and manner 
acceptable to the Commission for a period of not less than five 
years.\240\
---------------------------------------------------------------------------

    \240\ 7 U.S.C. 7a-1(c)(2)(K).
---------------------------------------------------------------------------

    Petitioners represent that their practices satisfy the regulatory 
goals of DCO Core Principle K because they have adequate recordkeeping 
requirements or systems.\241\ In addition, Petitioners represent that 
FERC has comprehensive recordkeeping regulations that cover, among 
other things, protection and storage of records, record storage media, 
destruction of records, and premature destruction or loss of 
records.\242\ The record retention requirements for accounting records 
are, in the main, at or in excess of five years.\243\ In addition, 
ERCOT, which is not subject to FERC jurisdiction, represents that it 
has also adopted specific books and records requirements that 
accomplish the regulatory goals of DCO Core Principle K. Specifically, 
ERCOT represents that it has specific record retention rules 
established in the EROCT Protocols and is required to retain market 
accounting information for a period of seven years.\244\
---------------------------------------------------------------------------

    \241\ See generally Petition Attachments at 168-173.
    \242\ See 18 CFR 125.2-.3.
    \243\ See 18 CFR 125.3 at (6)-(9).
    \244\ See Petition Attachments at 169.
---------------------------------------------------------------------------

    Based on these regulations and Petitioners' representations, it 
appears that these practices are congruent with, and sufficiently 
accomplish, the regulatory objectives of DCO Core Principle K in the 
context of Petitioners' activities with respect to the Transactions. 
The Commission seeks comment with respect to this preliminary 
conclusion.
12. DCO Core Principle L: Public Information
    Core Principle L requires a DCO to make information concerning the 
rules and operating procedures governing its clearing and settlement 
systems (including default procedures) available to market 
participants.\245\ Core Principle L also requires a DCO to provide 
market participants with sufficient information to enable them to 
identify and evaluate accurately the risks and costs associated with 
using the DCO's services, and to disclose publicly and to the 
Commission information concerning: (1) The terms and conditions of each 
contract, agreement, and transaction cleared and settled by the DCO; 
(2) the fees that the DCO charges its members and participants; (3) the 
DCO's margin-setting methodology, and the size and composition of its 
financial resources package; (4) daily settlement prices, volume, and 
open interest for each contract the DCO settles or clears; and (5) any 
other matter relevant to participation in the DCO's settlement and 
clearing activities.\246\
---------------------------------------------------------------------------

    \245\ 7 U.S.C. 7a-1(c)(2)(L)(i)-(ii).
    \246\ 7 U.S.C. 7a-1(c)(2)(L)(iii).
---------------------------------------------------------------------------

    Each Petitioner represents that it makes its tariff or related 
governing documents publicly available on its Web site, which, in turn, 
allows market participants (and the public) to access its rules and 
procedures regarding, among other things, participant and product 
eligibility requirements, risk management methodologies, settlement 
procedures, and other information that may impact prices, such as 
transmission system models, reserved transmission capacity, and similar 
information.\247\
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    \247\ See generally Petition Attachments at 175-182.
---------------------------------------------------------------------------

    Based on Petitioners' representations, it appears that these 
practices are congruent with, and sufficiently accomplish, the 
regulatory objectives of DCO Core Principle L in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
13. DCO Core Principle M: Information Sharing
    Core Principle M requires a DCO to enter into and abide by the 
terms of all appropriate and applicable domestic and international 
information-sharing agreements, and use relevant information obtained 
from the agreements in carrying out the DCO's risk management 
program.\248\
---------------------------------------------------------------------------

    \248\ 7 U.S.C. 7a-1(c)(2)(M).
---------------------------------------------------------------------------

    Petitioners represent that they have policies and procedures that 
allow them to share information with and receive information from other 
entities as necessary to carry out their risk management 
functions.\249\ For example, ISO NE represents that its Information 
Policy sets out rules for sharing information with participants, FERC, 
and other Petitioners.\250\ Similarly, the NYISO represents that its 
tariff provides for information sharing with other ISOs and RTOs.\251\ 
ERCOT represents that it is likewise subject to a comprehensive set of 
rules under the PURA, PUCT Rules, and the ERCOT Protocols that address 
information exchange obligations between ERCOT, the ERCOT Independent 
Market Monitor, ERCOT market participants, and the PUCT.\252\ MISO, 
PJM, and CAISO all claim to have similar information sharing policies 
and procedures--although, the entities with which each ISO/RTO shares 
information do vary.\253\
---------------------------------------------------------------------------

    \249\ See generally Petition Attachments at 184-190.
    \250\ See id. at 186.
    \251\ See id. at 188-189.
    \252\ See id. at 185.
    \253\ See id. at 184, 187, 190.
---------------------------------------------------------------------------

    Based on the foregoing and Petitioners' representations, it appears 
that these practices are congruent with, and sufficiently accomplish, 
the regulatory objectives of Core Principle M in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
14. DCO Core Principle N: Antitrust
    Core Principle N requires a DCO to avoid, unless necessary or 
appropriate to achieve the purposes of the CEA, adopting any rule or 
taking any action that results in any unreasonable restraint of trade, 
or imposing any material anticompetitive burden.\254\
---------------------------------------------------------------------------

    \254\ 7 U.S.C. 7a-1(c)(2)(N).
---------------------------------------------------------------------------

    As discussed above, the formation of the Petitioners (except for 
ERCOT) was encouraged by FERC (pursuant to FERC Order Nos. 888 and 
2000) in order to foster greater competition in the power generation 
sectors by allowing open access to transmission lines.\255\ In

[[Page 52156]]

addition, Petitioners represent that they are subject to continued 
oversight by FERC, PUCT or their market monitors, as appropriate, which 
oversight could detect activities such as undue concentrations or 
market power, discriminatory treatment of market participants or other 
anticompetitive behavior.\256\
---------------------------------------------------------------------------

    \255\ See FERC Order No. 888; FERC Order No. 2000. Moreover, 
Petitioners represent that their rules are typically subject to 
advance review by stakeholders and must be approved by FERC (except 
for ERCOT whose rules are approved by PUCT). These rules are, in 
turn, subject to review by the MMU, who attempt to detect, among 
other things, detect market power abuses. See generally Petition 
Attachments at 192-198. With respect to ERCOT, TAC 25.361(i) 
expressly states that ``The existence of ERCOT is not intended to 
affect the application of any state or federal anti-trust laws.'' In 
addition, ERCOT represents that it conducts antitrust training for 
its employees annually, holds open meetings to promote the 
transparent development of market rules, established a Corporate 
Standard to addresses antitrust issues, and that ``PURA, PUCT 
Substantive Rules and ERCOT Protocols also require that ERCOT allow 
access to the transmission system for all buyers and sellers of 
electricity on a nondiscriminatory basis, which facilitates actions 
consistent with the antitrust considerations of [DCO Core Principle 
N].'' See Petition Attachments at 193-194.
    \256\ See Petition Attachments at 192-198.
---------------------------------------------------------------------------

    Based on Petitioners' representations, it appears that Petitioners' 
existence and practices are congruent with, and sufficiently 
accomplish, the regulatory objectives of Core Principle N. The 
Commission seeks comment with respect to this preliminary conclusion.
15. DCO Core Principle O: Governance and Fitness Standards
    Core Principle O requires a DCO to establish governance 
arrangements that are transparent to fulfill public interest 
requirements and to permit the consideration of the views of owners and 
participants.\257\ A DCO must also establish and enforce appropriate 
fitness standards for directors, members of any disciplinary committee, 
members of the DCO, any other individual or entity with direct access 
to the settlement or clearing activities of the DCO, and any party 
affiliated with any of the foregoing individuals or entities.\258\
---------------------------------------------------------------------------

    \257\ 7 U.S.C. 7a-1(c)(2)(O)(i).
    \258\ 7 U.S.C. 7a-1(c)(2)(O)(ii).
---------------------------------------------------------------------------

    Petitioners represent that their tariffs, organizational documents, 
and applicable state law set forth specific governance standards that 
are consistent with the regulatory goals which address, for example, 
director independence and fitness requirements.\259\ In addition, 
Petitioners assert that FERC Order Nos. 888 and 2000 set out certain 
minimum governance structures for ISOs and RTOs. Petitioners state that 
Order No. 888 requires the following: an ISO's governance should be 
structured in a fair and non-discriminatory manner; an ISO and its 
employees should have no financial interest in the economic performance 
of any power market participant; and an ISO should adopt and enforce 
strict conflict of interest standards.\260\ Petitioners assert that 
Order No. 2000 likewise identified minimum characteristics that RTOs 
must exhibit, including, independence from all market 
participants.\261\ Similarly, Petitioners represent that PURA mandates 
ERCOT to include unaffiliated directors and market segment 
representation in its governance structure.\262\
---------------------------------------------------------------------------

    \259\ See Petition Attachments at 200-208.
    \260\ See id. at 200 (citing to FERC Order No. 888).
    \261\ See Petition Attachments at 208 (citing to FERC Order No. 
2000).
    \262\ See id. at 202.
---------------------------------------------------------------------------

    Based on Petitioners' representations, it appears that Petitioner's 
governance structures are congruent with, and sufficiently accomplish, 
the regulatory objectives of DCO Core Principle O in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
16. DCO Core Principle P: Conflicts of Interest
    Pursuant to DCO Core Principle P, each DCO must establish and 
enforce rules to minimize conflicts of interest in the decision-making 
process of the DCO.\263\ In addition, each DCO must establish a process 
for resolving conflicts of interest.\264\
---------------------------------------------------------------------------

    \263\ 7 U.S.C. 7a-1(c)(2)(P)(i).
    \264\ 7 U.S.C. 7a-1(c)(2)(P)(ii).
---------------------------------------------------------------------------

    Each Petitioner represents that it has established a conflict of 
interest policy in a Code of Conduct or other corporate document that 
requires board members and employees to, among other things, avoid 
activities that are contrary to the interests of the Petitioner.\265\ 
In addition, CAISO represents that Order No. 888 requires ISOs to 
implement strict conflict of interest policies.\266\ Similarly, ERCOT 
asserts that the PUCT Substantive Rules require it to adopt policies to 
mitigate conflicts of interest.\267\
---------------------------------------------------------------------------

    \265\ See Petition Attachments at 210-216.
    \266\ See id. at 210.
    \267\ See id. at 211.
---------------------------------------------------------------------------

    Based upon Petitioners' representations, it appears that the 
conflict of interest policies Petitioners have adopted and that the 
requirements Petitioners are subject to are congruent with, and 
sufficiently accomplish, the regulatory objectives of DCO Core 
Principle P in the context of Petitioners' activities with respect to 
the Transactions. The Commission seeks comment with respect to this 
preliminary conclusion.
17. DCO Core Principle Q: Composition of Governing Boards
    DCO Core Principle Q provides that each DCO shall ensure that the 
composition of the governing board or committee of the derivatives 
clearing organization includes market participants.\268\
---------------------------------------------------------------------------

    \268\ 7 U.S.C. 7a-1(c)(2)(O).
---------------------------------------------------------------------------

    ERCOT represents that its governing board includes representatives 
from the market,\269\ CAISO, on the other hand, asserts that its board 
composition is mandated by California statute, wherein members are 
appointed by the Governor of California and confirmed by the California 
senate.\270\ ISO NE and MISO assert that they have active market 
participants who are involved in the nomination and selection of Board 
members, while NYISO asserts that its market participants provide input 
and feedback through market participant committees, and other 
subcommittees and working groups, and PJM has a Members Committee that 
elects the members of the PJM Board.\271\ FERC regulations require that 
an RTO ``must have a decision making process that is independent of 
control by any market participant or class of participants.'' \272\ 
However, FERC also requires that each ISO and RTO ``adopt business 
practices and procedures that achieve Commission-approved independent 
system operator and regional transmission organization board of 
directors' responsiveness to customers and other stakeholders and 
satisfy [specified] criteria.'' \273\
---------------------------------------------------------------------------

    \269\ See Petition Attachments at 219.
    \270\ See id. at 218.
    \271\ See id. at 221-223.
    \272\ See 18 CFR 35.34(j)(1)(ii).
    \273\ See 18 CFR 35.28(g)(6).
---------------------------------------------------------------------------

    Based on Petitioner's representations, and the regulations and 
supervision of FERC, it appears that these practices are congruent 
with, and sufficiently accomplish, the regulatory objectives of DCO 
Core Principle Q in the context of Petitioners' activities with respect 
to the Transactions. The Commission seeks comment with respect to this 
preliminary conclusion.
18. DCO Core Principle R: Legal Risk
    Core Principle R requires a DCO to have a well-founded, 
transparent, and enforceable legal framework for each aspect of its 
activities.\274\
---------------------------------------------------------------------------

    \274\ 7 U.S.C. 7a-1(c)(2)(R).
---------------------------------------------------------------------------

    Petitioners assert that they operate under a transparent and 
comprehensive legal framework that is grounded in the Federal Power Act 
or the Texas Public Utility Regulatory Act, as applicable, and 
administered by FERC or the PUCT, as applicable.\275\ Indeed, 
Petitioners assert that they are subject to FERC or PUCT orders rules 
and regulations and that each Petitioner operates pursuant to a tariff 
that has been reviewed and approved by FERC or the PUCT, as 
applicable.\276\ Moreover, with respect to

[[Page 52157]]

an area of particular concern (eligibility for setoff in bankruptcy), 
the CFTC is requiring independent confirmation.\277\
---------------------------------------------------------------------------

    \275\ See generally Petition Attachments at 225-235.
    \276\ See id.
    \277\ See the discussion in section V.D.4.g.
---------------------------------------------------------------------------

    Based on Petitioners' representations, it appears that this 
framework is congruent with, and sufficiently accomplishes, the 
regulatory objectives of Core Principle R in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.

E. SEF Core Principles

1. SEF Core Principle 1: Compliance With Core Principles
    SEF Core Principle 1 requires a SEF to comply with the Core 
Principles described in part 37 of the Commission's Regulations.\278\ 
As demonstrated by the following analysis, the Commission has made a 
preliminary determination that in the context of the Petitioners' 
activities with respect to the Transactions within the scope of this 
Proposed Exemption, Petitioners' practices appear congruent with, and 
to accomplish sufficiently, the regulatory objectives of each SEF core 
principle. The Commission requests comment with respect to this 
preliminary determination.
---------------------------------------------------------------------------

    \278\ 7 U.S.C. 7b-3(f)(1)
---------------------------------------------------------------------------

2. SEF Core Principle 2: Compliance With Rules
    SEF Core Principle 2 requires a SEF to establish and enforce 
compliance with any rule of the SEF.\279\ A SEF is also required to (1) 
establish and enforce rules with respect to trading, trade processing, 
and participation that will deter market abuses and (2) have the 
capacity to detect, investigate and enforce those rules, including a 
means to (i) provide market participants with impartial access to the 
market, and (ii) capture information that may be used in establishing 
whether rule violations have occurred.\280\
---------------------------------------------------------------------------

    \279\ 7 U.S.C. 7b-3(f)(2).
    \280\ SEF Core Principle 2 also requires a SEF to establish 
rules governing the operation of the facility, including trading 
procedures, and provide rules that, when a swap is subject to the 
mandatory clearing requirement, hold swap dealers and major swap 
participants responsible for compliance with the mandatory trading 
requirement under section 2(h)(8) of the Act.
---------------------------------------------------------------------------

    Petitioners represent that they have transparent rules for their 
market, including rules that govern market abuses and compliance 
enforcement.\281\ For instance, the independent market monitor 
established by statute for the ERCOT region oversees market behavior 
and reports any market compliance issues to the state regulator.\282\ 
If a market participant violates ERCOT rules, depending on the nature 
of the offense, ERCOT and/or the state regulator may take appropriate 
action against the party, including, but not limited to, terminating, 
expelling, suspending, or sanctioning a member.\283\ The other 
Petitioners also represent that they have enforcement mechanisms that 
allow the Petitioners to, among other things, monitor their markets, 
investigate suspected tariff violations, take action against violators 
(including assessing fines or suspending or terminating a market 
participant's participation in market activities), and refer potential 
violations to FERC.\284\
---------------------------------------------------------------------------

    \281\ Petition Attachments at 238-245.
    \282\ See id. at 130. See also id. at 239-240.
    \283\ See id. at 129. See also id. at 239-240.
    \284\ See id. at 128, 131-150. See also id. at 238, 241-245.
---------------------------------------------------------------------------

    Based on the foregoing, it appears that the Petitioners' practices 
are consistent with, and sufficiently accomplish, the regulatory goals 
of SEF Core Principle 2 in the context of Petitioners' activities with 
respect to the Transactions. The Commission requests comment with 
respect to this preliminary determination.
3. SEF Core Principle 3: Swaps Not Readily Susceptible to Manipulation
    SEF Core Principle 3 requires a SEF submitting a contract to the 
Commission for certification or approval to demonstrate that the swap 
is not readily susceptible to manipulation.\285\
---------------------------------------------------------------------------

    \285\ 7 U.S.C. 7b-3(f)(3).
---------------------------------------------------------------------------

a. Energy Transactions
    Petitioners define Energy Transactions to include both physically-
delivered as well as cash-settled contracts.\286\ For purposes of this 
Proposed Exemption, the Commission limits the analysis to Energy 
Transactions that are cash-settled.
---------------------------------------------------------------------------

    \286\ See Petition at 7.
---------------------------------------------------------------------------

    Petitioners have represented to the Commission that market 
participants use the cash-settled Energy Transactions to arbitrage 
between the Day-Ahead and Real-Time markets.\287\ The result is that 
prices between the Day-Ahead and Real-Time markets converge and reduce 
the price volatility normally found in electricity markets.\288\ 
Indeed, the contracts were created with this very purpose in mind.\289\
---------------------------------------------------------------------------

    \287\ See Petition Attachments at 252-253.
    \288\ See id. at 142. See also id. at 253.
    \289\ FERC Order on Compliance Filing to PJM, 139 FERC ] 61,057 
issued April 19, 2012 in Docket No. ER09-1063-004.
---------------------------------------------------------------------------

    The Commission understands that MMUs operated by each of the 
Petitioners have been organized in such a way that both the Real-Time 
and Day-Ahead markets are monitored to identify suspicious trading 
activity.\290\ In the event the MMUs identify suspicious trading 
activity, FERC, or PUCT in the case of ERCOT, is notified so that 
further investigation may be done. An example of such suspicious 
trading activity would involve a market participant engaging in Energy 
Transactions that repeatedly incur a loss.\291\ Repeated losses in 
Energy Transactions would indicate that a market participant is 
sustaining losses to improve another position. For example, in the 
event a market participant tried to manipulate the price of electricity 
in the Day-Ahead or Real-Time markets to improve a different position, 
such as an FTR, they would have to submit bids that drove up the price 
of electricity for that specific node. In order to do this, however, 
the participant would have to submit a large dollar amount of offers at 
an inflated price. The Commission believes that this type of trading 
activity should be detectable by the MMUs. In addition to being 
difficult to effectuate simply because of the financial resources 
required, the Commission believes that any such activity should be 
apparent to not only MMUs using their ordinary oversight tools, but to 
market participants, who should have a self-interest in reporting such 
activity to the MMUs. Notably, such manipulative schemes have been 
identified and prosecuted by FERC in the past.\292\
---------------------------------------------------------------------------

    \290\ See generally Petition Attachments at 124-147.
    \291\ See generally id.
    \292\ On March 9, 2012 Constellation Energy and FERC's Office of 
Enforcement entered into a Stipulation and Consent Agreement in 
which Constellation neither admitted nor denied wrongdoing. FERC 
initially alleged that Constellation manipulated the price of 
electricity using virtual and physically-settled transactions on the 
markets of ISO NE and NYISO to benefit non-ISO swap positions. After 
receiving two anonymous hotline tips, FERC was alerted to 
potentially problematic trading after detecting successive losses by 
Constellation in their virtual and physical bids on the NYISO. 
Constellation agreed to pay a fine of $135,000,000 and disgorge 
$110,000,000 in unjust profits. See Order approving stipulation and 
agreement, Docket No. IN12-7-000, 138 FERC ] 61,168.
---------------------------------------------------------------------------

    Petitioners represent that they have adequate staff and IT 
resources to conduct market surveillance.\293\ Each Petitioner follows 
a similar market design which allows for price discovery at thousands 
of nodes and paths in short time intervals (every five to fifteen 
minutes) in both the Real-Time and Day-Ahead markets.\294\ The MMUs 
look

[[Page 52158]]

for manipulative behavior and market power, as well as market flaws 
(such as persistent non-convergence of Day-Ahead and Real-Time prices), 
which are fed back into a stakeholder process for changing the market 
structure and rules.\295\
---------------------------------------------------------------------------

    \293\ See Petition at 126-150.
    \294\ See generally Petition Attachments at 247-258.
    \295\ See generally id. at 126-150.
---------------------------------------------------------------------------

    Based on the Petitioners' representations regarding the 
surveillance carried out by the MMUs for each Petitioner and the method 
by which the Day-Ahead and Real-Time auctions are conducted, it appears 
that Petitioners' policies and procedures to mitigate the 
susceptibility of Energy Transactions to manipulation are congruent 
with, and sufficiently accomplish, the regulatory objectives of SEF 
Core Principle 3 in the context of Petitioners' activities with respect 
to the Energy Transactions. The Commission seeks comment with respect 
to this preliminary conclusion.
b. Financial Transmission Rights (``FTRs'')
    Based upon the Petitioners' representations, the Commission 
understands FTRs to be cash-settled contracts that entitle the holder 
to a payment equal to the difference in the price of electricity 
between two specific nodes.\296\ The difference in price between the 
two nodes represents the settlement price. The price at each node is 
established through auctions conducted on the Day-Ahead market of each 
Petitioner.\297\ As discussed above, the Commission has made a 
preliminary determination that the Real-Time and Day-Ahead markets on 
Petitioners' platforms appear to be consistent with SEF Core Principle 
3.
---------------------------------------------------------------------------

    \296\ See Petition at 6.
    \297\ See, e.g., Petition Attachments at 252.
---------------------------------------------------------------------------

    As previously discussed, both the Petitioners and their respective 
MMUs conduct market surveillance of both the Real-Time and Day-Ahead 
markets to identify manipulation of the price of electricity. In the 
event unusual trading activity is detected by the Petitioners' MMUs, 
the MMUs will immediately contact FERC, or PUCT in the case of ERCOT, 
so that an investigation into the unusual activity may begin.\298\ 
Although the price of FTRs may be altered by the manipulation of the 
Real-Time or Day-Ahead markets, FERC requires that the Petitioners have 
systems to monitor for such activity.
---------------------------------------------------------------------------

    \298\ See generally Petition Attachments at 128-150.
---------------------------------------------------------------------------

    The Commission believes that the Petitioners' policies and 
procedures should mitigate the susceptibility of FTRs to manipulation 
and that they are congruent with, and sufficiently accomplish, the 
regulatory objectives of SEF Core Principle 3 in the context of 
Petitioners' activities with respect to FTRs. The Commission seeks 
comment with respect to this preliminary conclusion.
    In addition to the Petitioners' policies and procedures for the 
detection of manipulative behavior in connection with FTRs, the 
Commission notes that since an FTR holder is entitled to a payment 
based on the price difference between two nodes, and not the physical 
delivery of electricity, it may be the case that FTRs are difficult to 
use to manipulate the price of electricity. For instance, the size of a 
participant's FTR position should not affect the price of electricity 
established on the Petitioners' Real-Time and Day-Ahead markets and 
holding an FTR does not provide a means to limit the deliverable supply 
of electricity. The Commission seeks comment on this evaluation and 
whether it should be considered in analyzing FTRs under SEF Core 
Principle 3.
c. Capacity and Reserve Transactions
    Both Capacity and Reserve Transactions are entered into pursuant to 
auctions carried out by each of the Petitioners.\299\ However, unlike 
the auctions for the Real-Time and Day-Ahead markets, the auctions for 
capacity and reserve transactions simply allow each Petitioner to 
accept bids submitted by market participants that have the ability to 
inject electricity into the Petitioner's electricity transmission 
system.\300\
---------------------------------------------------------------------------

    \299\ See Petition at 7-9.
    \300\ See Petition at 7-9.
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    The Commission notes that the Petitioners would apply the same 
oversight policies and procedures to Capacity and Reserve Transactions 
that they apply to Energy Transactions and FTRs. The Commission 
believes that these measures appear to be consistent with, and to 
accomplish sufficiently, the regulatory objectives of SEF Core 
Principle 3 in the context of Petitioners' activities with respect to 
Capacity and Reserve Transactions. The Commission seeks comment with 
respect to this preliminary conclusion.
    The Commission also seeks comment on whether the auction procedures 
used in connection with Capacity and Reserve Transactions could reduce 
the likelihood for manipulation of such agreements due to the fact that 
the Petitioners themselves are the only possible counterparty during 
each auction. For example, when CAISO conducts an auction for 
Generation Capacity, it is the only party that would enter into the 
agreement with a CAISO market participant capable of providing the 
contracted for electricity. CAISO would then call upon the Capacity and 
Reserve Transaction counterparties to inject electricity into the 
system when the technical requirements of operating the transmission 
system deem injection necessary. Accordingly, Capacity and Reserve 
Transactions seem to be distinguishable from FTRs or Energy 
Transactions in that they are used exclusively for operational 
maintenance of the electric transmission system, and not as a means of 
reducing exposure to price volatility, arbitrage or price discovery. 
The Commission seeks comment on this analysis of Capacity and Reserve 
Transactions and whether it should be considered in the Commission's 
review of these instruments under SEF Core Principle 3.
4. SEF Core Principle 4: Monitoring of Trading and Trade Processing
    SEF Core Principle 4 requires a SEF to establish and enforce rules 
or terms and conditions defining trading procedures to be used in 
entering and executing orders traded on or through the SEF and 
procedures for the processing of swaps on or through the SEF.\301\ SEFs 
are also required to establish a system to monitor trading in swaps to 
prevent manipulation, price distortion and disruptions of the delivery 
or cash settlement process through surveillance, compliance and 
disciplinary practices and procedures. The main goal of this Core 
Principle is to monitor trading activity to detect or deter market 
participants from manipulating the price or deliverable supply of a 
commodity.
---------------------------------------------------------------------------

    \301\ 7 U.S.C. 7b-3(f)(4).
---------------------------------------------------------------------------

a. Energy Transactions
    Generally, the Petitioners have tariffs in place that list how 
Energy Transactions are to be entered into the trading platform.\302\ 
Using these procedures, MMUs are able to track the Energy Transactions 
submitted by market participants and identify trading activity that 
could be manipulative. As a result, Petitioners' policies and 
procedures regarding monitoring of trading and trade processing appear 
to be consistent with, and to accomplish sufficiently, the regulatory 
objectives of SEF Core Principle 4 in the context of Petitioners' 
activities with respect to Energy Transactions. The Commission

[[Page 52159]]

seeks comment with respect to this preliminary conclusion.
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    \302\ See generally Petition Attachments at 260-269.
---------------------------------------------------------------------------

b. FTRs
    The process by which the FTR allocation and auction takes place 
provides the Petitioners with a basic system that allows the 
Petitioners to determine which market participants hold FTRs. According 
to the Petitioners' tariffs, LSEs applying for FTRs during the 
allocation phase must first establish that they are in fact exposed to 
load levels for the transmission lines on which they will transmit 
electricity.\303\ Once an LSE has demonstrated such exposure, they will 
be allowed to participate in the FTR allocation. The FTRs are allocated 
to each LSE in direct relation to the level of exposure to which the 
LSEs are subject.\304\ This process of determining congestion exposure 
and allocating FTRs in relation to that exposure ensures that 
Petitioners will have a record of the number of FTRs held by each 
member.
---------------------------------------------------------------------------

    \303\ See generally id.
    \304\ See id.
---------------------------------------------------------------------------

    During the auction and secondary market phases, the Petitioners 
also have systems in place to track which participants hold FTRs. 
During the auction phase, any credit-worthy member of the RTO or ISO 
may bid on FTRs. Since the auctions are conducted on the Petitioners' 
platforms, they will have records of which market participants hold 
FTRs after the auctions. Once an auction is complete, credit-worthy 
members may then engage in bilateral transactions to trade FTRs. Again, 
Petitioners have implemented systems to track these bilateral 
transactions between FTR holders. Once a bilateral transaction is 
reported, the Petitioner then performs a credit check to ensure that 
the new owner of the FTR has the financial capability to assume the 
risk posed by ownership of the FTR.\305\ The Petitioners do not perform 
an analysis to determine whether a member is obtaining a large position 
in the secondary FTR market. The Petitioners only identify which 
members hold FTRs in the secondary market.
---------------------------------------------------------------------------

    \305\ See id. at 2-20.
---------------------------------------------------------------------------

    Based on the foregoing representations, it appears that the 
Petitioners' policies and procedures regarding the monitoring of 
trading and trade processing are consistent with, and to accomplish 
sufficiently, the regulatory objectives of SEF Core Principle 4 in the 
context of Petitioners' activities with respect to FTRs. The Commission 
seeks comment with respect to this preliminary conclusion.
c. Capacity and Reserve Transactions
    As discussed above, the auction process used for Capacity and 
Reserve Transactions differs from the process used in the Real-Time and 
Day-Ahead markets. Furthermore, Capacity and Reserve Transactions are 
not used to limit exposure to price volatility, discover prices or 
engage in arbitrage. The transactions are predominantly bilateral 
agreements between each Petitioner and certain of that Petitioner's 
market participants for the provision of electricity in order to meet 
the technical requirements necessary to operate the electric 
transmission system. The contracts are not readily susceptible to 
manipulation and there is no market trading that must be monitored to 
prevent manipulation or congestion of the physical delivery market. As 
a result, the Petitioners' policies and procedures regarding the 
monitoring of trading and trade processing appear to be consistent 
with, and to accomplish sufficiently, the regulatory objectives of SEF 
Core Principle 4 in the context of Petitioners' activities with respect 
to Capacity and Reserve Transactions. The Commission seeks comment with 
respect to this preliminary conclusion.
5. SEF Core Principle 5: Ability To Obtain Information
    SEF Core Principle 5 requires a SEF to establish and enforce rules 
that will allow it to obtain any necessary information to perform the 
functions described in section 733 of the Dodd-Frank Act, provide 
information to the Commission upon request, and have the capacity to 
carry-out such international information-sharing agreements as the 
Commission may require.\306\ As discussed above,\307\ each Petitioner 
represents that it has rules in place that require market participants 
to submit information to Petitioners upon request so that Petitioners 
may conduct investigations and provide or give access to such 
information to their market monitors and FERC or PUCT, as 
applicable.\308\ On the basis of these representations, it appears that 
Petitioners' practices are consistent with, and sufficiently 
accomplish, the regulatory goals of SEF Core Principle 5. The 
Commission seeks comment with respect to this preliminary 
determination.
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    \306\ 7 U.S.C. 7b-3(f)(5).
    \307\ See generally the discussions in sections V.D.10. and 
V.D.13. supra.
    \308\ See generally Petition Attachments at 271-276.
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6. SEF Core Principle 6: Position Limits or Accountability
    SEF Core Principle 6 requires SEFs that are trading facilities, as 
that term is defined in CEA section 1a(51), to establish position 
limits or position accountability for speculators, as is necessary and 
appropriate, for each swap traded on the SEF in order to prevent or 
reduce the potential threat of market manipulation or congestion, 
especially during trading in the delivery month.\309\ While the markets 
administered by Petitioners are subject to MMUs (as discussed above in 
section IV.C.), Petitioners do not have position limits or position 
accountability thresholds for speculators in order to reduce the 
potential threat of market manipulation or congestion. The Commission 
specifically requests comment as to whether the lack of position limits 
or position accountability thresholds for speculators in Petitioners' 
markets, given the nature of their markets and market participants, and 
the other regulatory protections applicable to these markets as 
described herein, would prevent the Commission from determining that 
the Proposed Exemption is consistent with the public interest and the 
purposes of the CEA.
---------------------------------------------------------------------------

    \309\ Further Definition of `Swap Dealer,' `Security-Based Swap 
Dealer,' `Major Swap Participant,' `Major Security-Based Swap 
Participant' and `Eligible Contract Participant,' 77 FR 30596, May 
23, 2012.
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7. SEF Core Principle 7: Financial Integrity of Transactions
    SEF Core Principle 7 requires a SEF to establish and enforce rules 
and procedures for ensuring the financial integrity of swaps entered on 
or through the facilities of the SEF, including the clearance and 
settlement of swaps pursuant to section 2(h)(1) of the CEA.
a. Risk Management Requirements and Credit Policies
    Petitioners represent that they ensure the financial integrity of 
transactions that are entered on or through their markets through the 
risk management requirements and credit policies that apply to their 
market participants.\310\ In addition to minimum capitalization 
requirements, Petitioners represent that they all have in place, or are 
in the process of implementing, risk management policies and procedures 
and internal controls appropriate to their trading activities in the 
RTO and ISO markets in which they

[[Page 52160]]

participate.\311\ Petitioners further represent that they require a 
responsible officer of the market participant to certify, on an annual 
basis, that the market participant has in place risk management 
policies, procedures and internal controls appropriate to its trading 
activities.\312\ Moreover, several Petitioners represent that they have 
proposed verification programs that confirm that participants who pose 
significant risks to the markets in which they participate have in 
place adequate risk management policies and internal controls.\313\
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    \310\ See Petition at 18-21; see Petition Attachments at 285-
291.
    \311\ See Petition at 20; see, e.g., Petition Attachments at 22-
24, 27, 33, 37.
    \312\ See Petition at 20; see Petition Attachments at 22, 28, 
35, 37, 44, 47-48.
    \313\ See Petition at 20; see, e.g., Petition Attachments at 23, 
27, 44, 50.
---------------------------------------------------------------------------

    In terms of credit policies, Petitioners represent that they have 
established ``comprehensive and integrated'' credit policies to manage 
credit risk and protect the financial integrity of transactions with 
market participants.\314\ In addition, Petitioners represent that FERC 
Order 741 placed additional risk management and credit requirements on 
RTOs and ISOs.\315\
---------------------------------------------------------------------------

    \314\ See Petition at 18; see, e.g., Petition Attachments at 22, 
25, 30-31, 39-43, 283.
    \315\ See Petition at 19. Such additional requirements include 
(a) limiting the amount of unsecured credit extended to any market 
participant to no more than $50 million; (b) adopting a billing 
period of no more than seven days and allowing a settlement period 
of no more than seven days; (c) eliminating unsecured credit in the 
financial transmission rights market; (d) establishing a single 
counterparty to all market participant transactions, or requiring 
each market participant to grant a security interest to the RTO or 
ISO in the receivables of its transactions, or providing another 
method of supporting netting; (e) limiting the time period by which 
a market participant must cure a collateral call to no more than two 
days; (f) requiring minimum participant criteria for market 
participants to be eligible to participate in the markets; and (g) 
requiring additional collateral due to a material adverse change. 
See 18 CFR 35.47.
---------------------------------------------------------------------------

b. Minimum Financial Standards and Ongoing Monitoring for Compliance
    In addition, based on Petitioners' representations, it appears that 
Petitioners' policies and procedures include minimum financial 
standards \316\ and creditworthiness standards \317\ for their market 
participants.\318\ Moreover, Petitioners represent that their policies 
and procedures, require Petitioners to monitor, on an ongoing basis, 
their market participants for compliance with such standards.\319\
---------------------------------------------------------------------------

    \316\ See, e.g., Petition Attachments at 30. Some Petitioners 
required market participants to demonstrate and maintain certain 
minimum financial requirements including an investment-grade credit 
rating documented by reports of a credit reporting agency, tangible 
net-worth threshold, total asset threshold, a certain current ratio, 
or a certain debt to total capitalization ratio. See, e.g., Petition 
Attachments at 26, 33-34, 37, 43. In certain instances, the minimum 
financial standards for market participants are scalable to the RTO 
and ISO markets in which they participate. See, e.g., Petition 
Attachments at 26, 31. The proposed rule regarding minimum financial 
standards also requires at a minimum, that members qualify as an 
eligible contract participant as defined by the CEA. The Commission 
notes that ISO NE has represented that it has market participants 
that may not meet the definition of eligible contract participant, 
but are ``appropriate persons'' for purposes of the 4(c) exemption. 
See Petition Attachments at 30. The Commission proposes to condition 
the granting of the 4(c) request on all parties to the agreement, 
contract or transaction being ``appropriate persons,'' as defined 
sections 4(c)(3)(A) through (J) of the Act or ``eligible contract 
participants'' as defined in section 1a(18)(A) of the Act and in 
Commission regulation 1.3(m). See provision 2.B. of the Proposed 
Exemption.
    \317\ See Petition at 18; see, e.g., Petition Attachments at 22, 
31, 39.
    \318\ See, e.g., Petition Attachments at 27, 30, 35, 84.
    \319\ See Petition Attachments at 56-92.
---------------------------------------------------------------------------

c. Establishment of a Central Counterparty
    As discussed in section V.C. above, FERC regulation 35.47(d) 
requires RTOs and ISOs to (1) establish a single counterparty to all 
market participant transactions, (2) require each market participant to 
grant a security interest in the receivables of its transactions to the 
relevant RTO or ISO, or (3) provide another method of supporting 
netting that provides a similar level of protection to the market that 
is approved by FERC.\320\ Petitioners have represented that they either 
are, or plan on becoming, central counterparties.\321\
---------------------------------------------------------------------------

    \320\ 18 CFR 35.47(d).
    \321\ See FERC Order 741 Implementation Chart at 5-6; See 
generally Petition at 19.
---------------------------------------------------------------------------

    As described in section V.D.4.g. above, the Commission is proposing 
to require that each Petitioner submit a well-reasoned legal memorandum 
from, or a legal opinion of, outside counsel that, in the Commission's 
sole discretion, provides the Commission with adequate assurance that 
the approach selected by the Petitioner will in fact provide the 
Petitioner with set-off rights in a bankruptcy proceeding. In addition, 
the Commission is requesting comment on whether ERCOT should be 
obligated to comply with the requirements of FERC regulation 35.47(d).
d. Conclusion
    Issues regarding risk management requirements, financial standards, 
and the use of a central counterparty are also addressed within the 
context of DCO Core Principle D. The Commission's preliminary 
conclusion that Petitioners policies and procedures are congruent with, 
and sufficiently accomplish, the regulatory objectives of Core 
Principle D in the context of the Petitioners' activities with respect 
to the Transactions is relevant in considering SEF Core Principle 7.
    Based on the foregoing analysis, including the representations of 
the Petitioners, Petitioners' policies and procedures appear to be 
consistent with, and to accomplish sufficiently, the regulatory 
objectives of SEF Core Principle 7 in the context of Petitioners' 
activities with respect to the Transactions. The Commission seeks 
comment with respect to this preliminary conclusion.
8. SEF Core Principle 8: Emergency Authority
    SEF Core Principle 8 requires that SEFs adopt rules to provide for 
the exercise of emergency authority.\322\ A SEF should have procedures 
and guidelines for decision-making and implementation of emergency 
intervention in the market. A SEF should have the authority to perform 
various actions, including without limitation: liquidating or 
transferring open positions in the market, suspending or curtailing 
trading in any swap, and taking such market actions as the Commission 
may direct. In addition, SEFs must provide prompt notification and 
explanation to the Commission of the exercise of emergency 
authority.\323\
---------------------------------------------------------------------------

    \322\ 7 U.S.C. 7b-3(f)(8).
    \323\ Core Principles and Other Requirements for Swap Execution 
Facilities, 76 FR 1229, proposed Jan. 7, 2011.
---------------------------------------------------------------------------

    Petitioners represent that their Tariffs generally provide a wide 
range of authorities to address emergency situations.\324\ Certain 
Petitioners have the ability to close out and liquidate all of a market 
participant's current and forward FTR positions if the market 
participant no longer meets creditworthiness requirements, or fails to 
make timely payment when due, in each case following any opportunity 
given to cure the deficiency.\325\ Other Petitioners have the authority 
to suspend trading in their markets.\326\
---------------------------------------------------------------------------

    \324\ See Petition Attachments at 293-298.
    \325\ See, e.g., id. at 293-295, 298.
    \326\ See, e.g., id. at 296-297.
---------------------------------------------------------------------------

    Just as the SEFs have rules in place that require them to take 
emergency actions to protect the markets by ``including imposing or 
modifying position limits, imposing or modifying price limits, imposing 
or modifying intraday market restrictions, imposing special margin 
requirements, ordering the liquidation or transfer of open positions in 
any contract, ordering the fixing of a settlement price,'' one

[[Page 52161]]

Petitioner represents that it may take actions to protect its markets 
by postponing the closure of affected markets, removing bids that have 
previously resulted in market disruptions, setting an administrative 
price to settle metered supply, or demanding, suspending or limiting 
the ability of scheduling coordinators to submit Energy 
Transactions.\327\
---------------------------------------------------------------------------

    \327\ Petition Attachments at 293 (CAISO).
---------------------------------------------------------------------------

    Based on the foregoing representations, it appears that 
Petitioners' policies and procedures regarding the exercise of 
emergency authority are congruent with, and sufficiently accomplish, 
the regulatory objectives of SEF Core Principle 8 in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
9. SEF Core Principle 9: Timely Publication of Trading Information
    SEF Core Principle 9 requires a SEF to make public timely 
information on price, trading volume, and other data on swaps to the 
extent prescribed by the Commission.\328\ In addition, SEFs are 
required to have the capacity to electronically capture and transmit 
trade information with respect to transactions executed on the 
SEF.\329\
---------------------------------------------------------------------------

    \328\ 7 U.S.C. 7b-3f(9)(A).
    \329\ 7 U.S.C. 7b-3f(9)(B).
---------------------------------------------------------------------------

    Petitioners represent that their Tariffs generally require the 
timely publication of trading information.\330\ Petitioners regulated 
by FERC also assert that they are able to publicly release market 
operations and grid management information using their Open Access 
Same-Time Information System (OASIS) program.\331\ This system 
transmits information which includes market results, the market 
clearing price and volume.\332\ Similarly, ERCOT's protocols require 
them to disseminate information which relates to market operations, 
prices, availability of services and the terms and conditions of the 
FTRs.\333\
---------------------------------------------------------------------------

    \330\ See Petition Attachments at 300-305.
    \331\ See id. at 300, 302-305.
    \332\ See id.
    \333\ See Petition Attachments at 177-178.
---------------------------------------------------------------------------

    Based on the foregoing representations, it appears that 
Petitioners' policies and procedures regarding the publication of 
trading information are congruent with, and sufficiently accomplish, 
the regulatory objectives of SEF Core Principle 9 in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
10. SEF Core Principle 10: Recordkeeping and Reporting
    SEF Core Principle 10 requires a SEF to maintain records of all 
activity relating to the business of the SEF, report such information 
to the Commission and to keep swaps information open to inspection by 
the Commission.\334\ Petitioners represent that their Tariffs require 
their market participants to provide Petitioners with information on a 
regular and ad hoc basis.\335\ Petitioners further represent that they 
are required to comply with FERC or PUCT regulations, as applicable, 
regarding the maintenance of information by public utilities.\336\
---------------------------------------------------------------------------

    \334\ 7 U.S.C. 7b-3(f)(10).
    \335\ See generally Petition at 307-312.
    \336\ See, e.g., id. at 309.
---------------------------------------------------------------------------

    Based on the Petitioners representations and the discussion 
regarding DCO Core Principles J and K above,\337\ it appears that these 
practices are congruent with, and sufficiently accomplish the 
regulatory objectives of SEF Core Principle 10 in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.
---------------------------------------------------------------------------

    \337\ See the discussions in sections V.D.10. and V.D.11. supra.
---------------------------------------------------------------------------

11. SEF Core Principle 11: Antitrust Considerations
    SEF Core Principle 11 prevents a SEF from adopting any rule or 
taking any action that results in any unreasonable restraint of trade, 
or imposes any material anticompetitive burden, unless necessary or 
appropriate to achieve the purposes of the Act.\338\ As discussed 
above, FERC established the RTO/ISO system to promote competition in 
the electricity market.\339\ Petitioners represent that their rates, 
terms and conditions of service are subject to the oversight, review 
and acceptance of FERC or PUCT, as applicable.\340\ Petitioners further 
represent that FERC or PUCT and their MMUs review trading activity to 
identify anticompetitive behavior.\341\
---------------------------------------------------------------------------

    \338\ 7 U.S.C. 7b-3(f)(11).
    \339\ See FERC Order Nos. 888 and 2000. See also the discussion 
in section V.D.14. supra.
    \340\ See generally Petition Attachments at 192-198.
    \341\ See generally id.
---------------------------------------------------------------------------

    Based on Petitioners' representations and the discussion of DCO 
Core Principle N above,\342\ it appears that Petitioners' existence and 
practices are congruent with, and sufficiently accomplish, the 
regulatory objectives of SEF Core Principle 11 in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment on this preliminary conclusion.
---------------------------------------------------------------------------

    \342\ See also the discussion in section V.D.14. supra.
---------------------------------------------------------------------------

12. SEF Core Principle 12: Conflicts of Interest
    SEF Core Principle 12 requires a SEF to establish and enforce rules 
to minimize conflicts of interest and establish a process for resolving 
conflicts of interest.\343\ As discussed above, FERC Order No. 888 
requires ISOs to adopt or enforce strict conflict of interest 
policies.\344\ Similarly, FERC Order No. 2000 requires RTOs to be 
independent of any market participant, and to include in their 
demonstration of independence that the RTO, its employees, and any non-
stakeholder directors do not have financial interests in any market 
participant.\345\ Each Petitioner represents that it has either 
established codes of conduct, which include conflict of interest rules, 
for employees and members of the Board of Directors \346\ or 
implemented specific policies and procedures to mitigate conflicts of 
interest.\347\ Based on Petitioners' representations and the discussion 
of DCO Core Principle P above,\348\ it appears that Petitioners' 
conflict of interest policies and the requirements to which the 
Petitioners are subject are congruent with, and sufficiently 
accomplish, the regulatory objectives of SEF Core Principle 12 in the 
context of Petitioners' activities with respect to the Transactions. 
The Commission seeks comment with respect to this preliminary 
conclusion.
---------------------------------------------------------------------------

    \343\ 7 U.S.C. 7b-3(f)(12).
    \344\ See FERC Order No. 888 at 281.
    \345\ See FERC Order No. 2000 at 709; 18 CFR 35.34(j)(1).
    \346\ See Petition Attachments at 210, 213-216, 321, 324-326.
    \347\ See id. at 211, 322.
    \348\ See the discussion in section V.D.16. supra.
---------------------------------------------------------------------------

13. SEF Core Principle 13: Financial Resources
    SEF Core Principle 13 requires a SEF to have adequate financial, 
operational and managerial resources to discharge each responsibility 
of the SEF.\349\ In addition, the financial resources of a SEF are 
considered to be adequate if the value of the financial resources 
exceeds the total amount that would enable the SEF to cover the 
operating costs of the SEF for a 1-year period, as calculated on a 
rolling basis.\350\
---------------------------------------------------------------------------

    \349\ 7 U.S.C. 7b-3(f)(13)(A).
    \350\ 7 U.S.C. 7b-3(f)(13)(B).
---------------------------------------------------------------------------

    Petitioners represent that they have rules in place that allow them 
to collect revenue from market participants

[[Page 52162]]

sufficient for each of their operations.\351\ Petitioners further 
represent to have adequate managerial resources to operate their 
systems.\352\ As discussed above, FERC Order No. 888 requires RTOs to 
have appropriate incentives for efficient management and 
administration.\353\ Each Petitioner represents that it has sufficient 
staff necessary for its operations.\354\
---------------------------------------------------------------------------

    \351\ See Petition Attachments at 3-4, 6, 8-10, 13, 16, 20, 328-
333.
    \352\ See id. at 3, 7-8, 10, 13, 16, 18-19.
    \353\ See supra n. 86 and accompanying text.
    \354\ See Petition Attachments at 3, 7, 12, 13, 16-17, 18-19, 
335-340. See also analysis under DCO Core Principle B.
---------------------------------------------------------------------------

    Based on Petitioners' representations and the discussion regarding 
DCO Core Principle B above,\355\ it appears that Petitioners' practices 
are congruent with, and sufficiently accomplish, the regulatory 
objectives of SEF Core Principle 13 in the context of Petitioners' 
activities with respect to the Transactions. The Commission seeks 
comment with respect to this preliminary conclusion.
---------------------------------------------------------------------------

    \355\ See the discussion in section V.D.2. supra.
---------------------------------------------------------------------------

14. SEF Core Principle 14: System Safeguards
    SEF Core Principle 14 requires a SEF to establish and maintain a 
program of risk analysis and oversight to identify and minimize sources 
of operational risk, through the development of appropriate controls 
and procedures, and automated systems, that are reliable and secure, 
and have adequate scalable capacity.\356\ Moreover, a SEF must 
establish and maintain emergency procedures, backup facilities, and a 
plan for disaster recovery that allows for the timely recovery and 
resumption of operations, and the fulfillment of the responsibilities 
and obligations of the SEF.\357\ The SEF must also conduct tests to 
verify that the backup resources of the SEF are sufficient to ensure 
continued order processing and trade matching, price reporting, market 
surveillance, and maintenance of a comprehensive and accurate audit 
trail.\358\
---------------------------------------------------------------------------

    \356\ 7 U.S.C. 7b-3(f)(14)(A).
    \357\ 7 U.S.C. 7b-3(f)(14)(B).
    \358\ 7 U.S.C. 7b-3(f)(14)(C).
---------------------------------------------------------------------------

    Petitioners represent that they have a program of risk analysis and 
oversight to identify and minimize sources of operational risk through 
the development of appropriate controls and procedures; reliable 
automated systems; and emergency procedures.\359\ Indeed, Petitioners 
are responsible for managing power reliably and, thus, require 
additional operational safeguards to specifically address that 
function.\360\
---------------------------------------------------------------------------

    \359\ See generally Petition Attachments at 152-158, 333-340.
    \360\ See supra n. 230 and accompanying text.
---------------------------------------------------------------------------

    Petitioners represent that they have computer systems that 
incorporate adequate business continuity and disaster recovery 
functionality.\361\ Some Petitioners state that they maintain offsite 
backup computer systems fully able to operate in the event the primary 
system fails \362\ whereas other Petitioners state that they operate 
two control centers and/or two data centers in which each center is 
functionally capable of operating as the primary center.\363\ Some 
Petitioners further state that they conduct testing of emergency 
procedures and system components on a regular basis to ensure that 
mission critical processes and vital records are recoverable, as well 
as the readiness of backup facilities and personnel.\364\
---------------------------------------------------------------------------

    \361\ See Petition Attachments at 152-158, 333-339.
    \362\ See id. at 152, 155-157.
    \363\ See id. at 153, 158. Certain Petitioners maintain 
alternate operational control centers in addition to offsite backup 
computer systems and data centers. See id. at 155-157.
    \364\ See id. at 152, 154, 156, 158.
---------------------------------------------------------------------------

    Based on Petitioners' representations and the discussion regarding 
DCO Core Principle I above,\365\ it appears that Petitioners' practices 
are congruent with, and sufficiently accomplish, the regulatory 
objectives of SEF Core Principle 14 in the context of Petitioners' 
activities with respect to the Transactions. The Commission seeks 
comment with respect to this preliminary conclusion.
---------------------------------------------------------------------------

    \365\ See also the discussion in section V.D.8. supra.
---------------------------------------------------------------------------

15. SEF Core Principle 15: Designation of Chief Compliance Officer
    SEF Core Principle 15 requires that a SEF designate an individual 
as Chief Compliance Officer, with specific delineated duties.\366\ The 
Chief Compliance Officer for a SEF would be responsible for reporting 
to the board and ensuring that the SEF is in compliance with the SEF 
rules. Each Petitioner represents that it has a Chief Compliance 
Officer \367\ or the functional equivalent of such a position.\368\
---------------------------------------------------------------------------

    \366\ See 7 U.S.C. 7b-3(f)(15). designation of chief compliance 
officer.--
    (A) IN GENERAL.--Each swap execution facility shall designate an 
individual to serve as a chief compliance officer.
    (B) DUTIES.--The chief compliance officer shall--
    (i) report directly to the board or to the senior officer of the 
facility;
    (ii) review compliance with the core principles in this 
subsection;
    (iii) in consultation with the board of the facility, a body 
performing a function similar to that of a board, or the senior 
officer of the facility, resolve any conflicts of interest that may 
arise;
    (iv) be responsible for establishing and administering the 
policies and procedures required to be established pursuant to this 
section;
    (v) ensure compliance with this Act and the rules and 
regulations issued under this Act, including rules prescribed by the 
Commission pursuant to this section; and
    (vi) establish procedures for the remediation of noncompliance 
issues found during compliance office reviews, look backs, internal 
or external audit findings, self-reported errors, or through 
validated complaints.
    \367\ See Petition Attachments at 342-346.
    \368\ PJM has two compliance heads who coordinate closely but 
are separately responsible for compliance in the following two 
distinct areas: (1) compliance with regulatory and legal 
obligations; and (2) compliance with reliability standards as 
promulgated by the regional reliability counsels, NERC and FERC. 
Regulatory and legal compliance addresses legal obligations, 
including compliance with the PJM Tariff, FERC regulations and laws, 
and regulations governing other corporate matters, such as 
antitrust, human resources and procurement. Regulatory and legal 
compliance is handled in the Office of General Counsel, by an 
Assistant General Counsel and Director of Regulatory Oversight and 
Compliance. Reliability compliance addresses the security of the 
grid, both operationally and from any cyber threat. This function is 
handled in the area of operations and the Executive Director of 
Reliability and Compliance reports directly to the senior vice 
president for operations. All compliance functions (both reliability 
and regulatory) are coordinated through PJM's Regulatory Oversight & 
Compliance Committee (``ROCC''). The ROCC is chaired by the 
Assistant General Counsel who has reporting obligations to the CEO 
and a direct line to the Board's Governance Committee and Audit 
Committee. See Petition Attachments at 347.
---------------------------------------------------------------------------

    Based on the Petitioners' representations, it appears that 
Petitioners' practices are congruent with, and sufficiently accomplish, 
the regulatory objectives of SEF Core Principle 15 in the context of 
Petitioners' activities with respect to the Transactions. The 
Commission seeks comment with respect to this preliminary conclusion.

VIII. Proposed Exemption

A. Discussion of Proposed Exemption

    Pursuant to the authority provided by section 4(c)(6) of the 
CEA,\369\ in accordance with CEA sections 4(c)(1) and (2), and 
consistent with the Commission's determination that the statutory 
requirements for granting an exemption pursuant to section 4(c)(6) of 
the Act have been satisfied, the Commission is proposing to issue the 
exemption described in the Proposed Exemption set forth below. The 
Proposed Exemption would exempt, subject to the limitations and 
conditions contained therein, the purchase and sale of certain 
electricity-related products, including specifically-defined 
``financial transmission rights,'' ``energy transactions,'' ``forward 
capacity transactions,'' and ``reserve or regulation transactions,'' 
from most provisions of

[[Page 52163]]

the CEA. The Commission is proposing to explicitly exclude from the 
exemption relief the Commission's general anti-fraud, anti-manipulation 
and enforcement authority under the CEA including, but not limited to, 
CEA sections 2(a)(1)(B), 4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 
6(d), 6(e), 6c, 6d, 8, 9 and 13 and any implementing regulations 
promulgated thereunder including, but not limited to Commission 
regulations 23.410(a) and (b), 32.4 \370\ and part 180.\371\ The 
preservation of the Commission's anti-fraud and anti-manipulation 
authority provided by these provisions generally is consistent with 
both the scope of the exemption requested in the Petition \372\ and 
recent Commission practice.\373\
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    \369\ 7 U.S.C. 6(c).
    \370\ 17 CFR 23.410(a)-(b), 32.4 and part 180.
    \371\ 17 CFR part 180.
    \372\ See Petition at 33-34. Petitioners requested relief from 
``all provisions of the Act and Commission regulations, except in 
each case sections 4b, 4o, 6(c) and 9(a)(3) of the Act to the extent 
that these sections prohibit fraud in connection with transactions 
subject to the Act, or manipulation of the price of any swap or 
contract for the sale of a commodity in interstate commerce or for 
future delivery on or subject to the rules of a registered entity, 
and from the requirement to provide information to the Commission as 
expressly permitted by their respective protocols or as provided 
under section 720 of the Dodd-Frank Wall Street Reform and Consumer 
Protection Act.'' The Proposed Exemption simply would preserve the 
Commission's authority under the delineated provisions and their 
implementing regulations without caveat, in order to avoid ambiguity 
as to what conduct remains prohibited.
    \373\ See, e.g., Order (1) Pursuant to Section 4(c) of the 
Commodity Exchange Act, Permitting the Kansas City Board of Trade 
Clearing Corporation To Clear Over-the-Counter Wheat Calendar Swaps 
and (2) Pursuant to Section 4d of the Commodity Exchange Act, 
Permitting Customer Positions in Such Cleared-Only Swaps and 
Associated Funds To Be Commingled With Other Positions and Funds 
Held in Customer Segregated Accounts, 75 FR 34983, 34985 (2010).
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    The particular categories of contracts, agreements and transactions 
to which the Proposed Exemption would apply correspond to the types of 
transactions for which relief was explicitly requested in the 
Petition.\374\ Petitioners requested relief for four specific types of 
transactions and the Proposed Exemption would exempt those 
transactions. With respect to those transactions, the Petition also 
included the parenthetical ``(including generation, demand response or 
convergence or virtual bids/transactions).'' \375\ The Commission notes 
that such transactions would be included within the scope of the 
exemption if they would qualify as the financial transmission rights, 
energy transactions, forward capacity transactions or reserve or 
regulation transactions for which relief is explicitly provided within 
the exemption. Petitioners also have requested relief for ``the 
purchase and sale of a product or service that is directly related to, 
and a logical outgrowth of, any [of Petitioner's] core functions as an 
ISO/RTO * * * and all services related thereto.'' \376\ The Commission 
has determined that it would be inappropriate, and, accordingly, has 
declined to propose that the exemption be extended beyond the scope of 
the transactions that are specifically defined in the Proposed 
Exemption. As noted above, the authority to issue an exemption from the 
CEA provided by section 4(c) of the Act may not be automatically or 
mechanically exercised. Rather, the Commission is required to 
affirmatively determine, inter alia, that the exemption would be 
consistent with the public interest and the purposes of the Act.\377\ 
With respect to the four groups of transactions explicitly detailed in 
the Proposed Exemption, the Commission's proposed finding that the 
Proposed Exemption would be in the public interest and would be 
consistent with the purposes of the CEA was grounded, in part, on 
certain transaction characteristics and market circumstances described 
in the Petition that may or may not be shared by other, as yet 
undefined, transactions engaged in by the Petitioners or other RTO or 
ISO market participants.\378\ Similarly, unidentified transactions 
might include novel features or have market implications or risks that 
are not present in the specified transactions. Such elements may impact 
the Commission's required section CEA 4(c) public interest analysis or 
may warrant the attachment of additional or differing terms and 
conditions to any relief provided. Due to the potential for adverse 
consequences resulting from an exemption that includes transactions 
whose qualities and effect on the broader market cannot be fully 
appreciated absent further specification, it does not appear that the 
Commission can justify a conclusion that it would be in the public 
interest to provide an exemption of the full breadth requested. The 
Commission notes, however, that it has requested comment on whether the 
proposed scope of the exemption is sufficient to allow for innovation 
and, if not, how the scope could be expanded, without exempting 
products that may be substantially different from those reviewed by the 
Commission. The Commission also notes that it stands ready to review 
promptly any additional applications for an exemption pursuant to 
section 4(c)(6), in accordance with CEA sections 4(c)(1) and (2), of 
the CEA for other precisely defined products.\379\
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    \374\ Petition at 5-9.
    \375\ Id. at 6.
    \376\ Id. at 9.
    \377\ 7 U.S.C. 6(c).
    \378\ For example, the transactions that included with the scope 
of the Proposed Exemption appear to be limited to those tied to the 
physical capacity of the Petitioners' electricity grids. Petition at 
6-8, 11.
    \379\ The Commission is currently reviewing two supplemental 
petitions. Specifically, ISO NE has filed a supplemental request for 
an exemption pursuant to section 4(c)(6) for ``IBT'' Transactions. 
See In the Matter of the Application for an Exemptive Order Under 
Section 4(c) of the Commodity Exchange Act by ISO New England Inc. 
(Apr. 30, 2012), available at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/iso-ne4crequest.pdf. 
CAISO has filed a similar request for ``inter-scheduling coordinator 
trades'' or ``inter-SC trades.'' See In the Matter of the 
Application for an Exemptive Order Under Section 4(c) of the 
Commodity Exchange Act by California Independent System Operator 
Corporation (May 30, 2012), available at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/caiso4crequest.pdf.
---------------------------------------------------------------------------

    The scope of the Proposed Exemption is limited by two additional 
factors. First, it is restricted to agreements, contracts or 
transactions where all parties thereto are either: (1) Entities 
described in section 4(c)(3)(A) through (J) of the CEA \380\ or (2) 
``eligible contract participants,'' as defined in section 1a(18) of the 
Act \381\ or in Commission regulation 1.3(m).\382\ Although Petitioners 
have requested an exemption pursuant to section 4(c)(6) of the CEA, any 
exemption pursuant to this subsection must be issued in ``in accordance 
with'' sections 4(c)(1) and 4(c)(2).\383\ Section 4(c)(2) prohibits the 
Commission from issuing an exemption pursuant to section 4(c) unless 
the Commission determines that the agreement, contract or transaction 
``will be entered into solely between `appropriate persons.' '' 
Appropriate persons include those entities explicitly delineated in 
sections 4(c)(3)(A) through (J) of the Act as well as others that the 
Commission, under the discretionary authority provided by section 
4(c)(3)(K), deems to be appropriate persons ``in light of their 
financial or other qualifications, or the applicability of appropriate 
regulatory protections.'' \384\ As noted above, the Commission has 
proposed to determine that eligible contract participants, as defined 
in section 1a(18) of the Act or in Commission regulation 1.3(m), should 
be considered appropriate persons for purposes of the Proposed 
Exemption.\385\ The Commission recognizes that the market participant 
eligibility standards

[[Page 52164]]

of an individual RTO or ISO may not be coextensive with the criteria 
required by sections 4(c)(3)(A) through (J) or section 1a(18) of the 
Act and, therefore, there may be certain RTO or ISO participants 
engaging in transactions of the type described in the Proposed 
Exemption that would not qualify for the Proposed Exemption. In 
particular, the Commission is interested in considering market 
participants that ``active[ly] participat[e] in the generation, 
transmission or distribution of electricity'' that are not ECPs and do 
not fall within CEA section 4(c)(3)(A) through (J), who should 
nonetheless be included as appropriate persons pursuant to CEA section 
4(c)(3)(K). Accordingly, the Commission has requested comment on 
whether the Commission should enlarge the list of appropriate persons 
for purposes of the exemption to include other types of entities 
identified in the Petition that satisfy alternative criteria. Any 
request to include additional entities should be accompanied by a 
description of the financial or other qualifications of such entities 
or the available regulatory protections that would render them 
comparable to the appropriate persons and eligible contract 
participants delineated in the Act. The Commission also is interested 
in receiving comments addressing whether and how market participants 
who satisfy substitute qualifications would be capable of bearing the 
risks associated with the relevant markets.
---------------------------------------------------------------------------

    \380\ 7 U.S.C. 6(c)(3)(A)-(J).
    \381\ 7 U.S.C. 1a(18).
    \382\ 17 CFR 1.3(m).
    \383\ 7 U.S.C. 6(c).
    \384\ 7 U.S.C. 6(c)(3).
    \385\ See discussion in section V.B.3. supra.
---------------------------------------------------------------------------

    In order to be eligible for the exemption that would be provided by 
the Proposed Exemption, the agreement, contract or transaction also 
must be offered or sold pursuant to the ``tariff'' of a ``requesting 
party'' and the tariff must have been approved or permitted to take 
effect by the PUCT (in the case of ERCOT) or by FERC (in the case of 
all other Petitioners). This requirement reflects the range of the 
Commission's authority as set forth in section 4(c)(6) \386\ of the CEA 
and is consistent with the scope of the relief requested.\387\ 
``Requesting Party'' is defined to include the six Petitioners (i.e., 
CAISO, ERCOT, ISO NE., MISO, NYSO and PJM) and any of their respective 
successors in interest. To account for differences in terminology used 
by such entities and their respective regulators, the term ``tariff'' 
is defined to include a ``tariff, rate schedule or protocol.''
---------------------------------------------------------------------------

    \386\ See the discussion in section V.A. supra.
    \387\ Petition at 2-3.
---------------------------------------------------------------------------

    Consistent with the range of the statutory authority explicitly 
provided by CEA section 4(c), the Proposed Exemption would extend the 
exemption to the agreements, contracts or transactions set forth 
therein and ``any person or class of persons offering, entering into, 
rendering advice or rendering other services with respect to'' such 
transactions. In addition, for as long as the Proposed Exemption would 
remain in effect, each of the six named Petitioners \388\ would be able 
to avail themselves of the Proposed Exemption with respect to all four 
expressly-identified groups of products, regardless of whether or not 
the particular Petitioner offers the particular product at the present 
time. That is, a Petitioner would not be required to request future 
supplemental relief for a product that it does not currently offer, but 
that qualifies as one of the four types of transactions in the Proposed 
Exemption. All six Petitioners that filed the consolidated Petition 
requested an exemption of the scope provided and the Petition was 
analyzed accordingly.\389\ The exemption would not extend, however, to 
any RTO or ISO that was not a party to the Petition under consideration 
because the Commission has not reviewed the tariffs or business 
practices of any other RTO or ISO and, therefore, cannot discern 
whether extending the Proposed Exemption to it would be equally 
congruent with the public interest and the purposes of the Act. The 
Commission has determined to issue one Proposed Exemption in lieu of 
the six separate orders requested by Petitioners.\390\ In light of the 
fact that there are ``[congruents] in [the Petitioners'] markets and 
operations,'' and the fact that the exemption for each will be 
coextensive, as requested by the Petitioners,\391\ it would appear that 
issuing six separate but identical Proposed Exemptions that raise the 
same issues and questions is unnecessary, could result in needlessly 
duplicative comments and would be an inefficient use of Commission 
resources. Any concerns that the public may have with respect to 
providing relief to any particular Petitioner can be adequately 
explained in a sole comment on the consolidated Proposed Exemption. The 
Commission disagrees with the Petitioners' assertion that distinct 
orders are necessary because a solitary order would require each 
Petitioner to submit an individual application to obtain supplemental 
relief or to amend the relief provided thereby. To the contrary, the 
Commission confirms that individual Petitioners (or other entities) may 
file individual requests for supplemental exemptions and the Commission 
may, consistent with the criteria under CEA section 4(c)(6), issue 
further exemptions either individually or in the collective, as 
necessary or appropriate and in accordance with the facts and 
circumstances presented.\392\ In fact, ISO NE and CAISO have filed 
individual requests for supplemental relief that currently are under 
review by Commission staff.\393\
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    \388\ CAISO, ERCOT, ISO NE., MISO, NYSO and PJM.
    \389\ The Requestors note that it is ``reasonable to expect that 
each ISO/RTO will, over time, consider offering under its own 
individual tariff one or more classes of contract, agreement and 
transaction that is currently offered under any other ISO/RTO 
tariff,'' and accordingly request that exemption be granted to all 
requestors for transactions that are currently offered by any of 
them. Petition at 6.
    \390\ See Petition at 2.
    \391\ See Petition at 6:
    ``While the ISOs/RTOs operate pursuant to individual tariffs, 
they share many commonalities in their markets and operations. 
Although the current market structures of the individual ISOs/RTOs 
may vary, it is reasonable to expect that each ISO/RTO will, over 
time, consider offering under its own individual tariff one or more 
classes of contract, agreement or transaction that is currently 
offered under any other ISO/RTO tariff. We thus request that each 
individual exemptive Order apply collectively to each class of 
contract, agreement or transaction provided by the ISOs/RTOs. This 
will provide the appropriate breadth to the exemptive Order so that 
an individual Requestor will not be required to seek future 
amendments to offer or enter into contracts, agreements or 
transactions that are currently offered by any other Requestor.''
    \392\ Section 4(c) permits the Commission to issue an exemption 
``on its own initiative or on application of any person.'' 7 U.S.C. 
4(c)(1).
    \393\ See In the Matter of the Application for an Exemptive 
Order Under Section 4(c) of the Commodity Exchange Act by ISO New 
England Inc. (Apr. 30, 2012), available at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/iso-ne4crequest.pdf. CAISO has filed a similar request for ``inter-
scheduling coordinator trades'' or ``inter-SC trades.'' See In the 
Matter of the Application for an Exemptive Order Under Section 4(c) 
of the Commodity Exchange Act by California Independent System 
Operator Corporation (May 30, 2012), available at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/caiso4crequest.pdf.
---------------------------------------------------------------------------

    The Proposed Exemption indicates that, when a final order is 
issued, it would be made effective immediately. The Commission 
proposes, however, three conditions precedent to the issuance of a 
final exemption that may be applicable to one or more specific 
Petitioners. First, the Commission proposes to refrain from issuing a 
final order to a specific RTO or ISO unless the RTO or ISO has adopted 
all of requirements set forth in FERC regulation 35.47; \394\ such 
tariff provisions have been approved or have been permitted to take 
effect by FERC or PUCT, as applicable; and such tariff provisions, have 
become effective and have been fully implemented by the particular RTO 
or ISO. That is, the Commission is considering requiring

[[Page 52165]]

that any policies and procedures that the RTO or ISO has adopted in 
order to comply with the obligations contained in FERC regulation 35.47 
be in actual practice. Petitioners note that their structure and 
operations are different from the DCOs registered with the 
Commission.\395\ However, FERC Regulation 35.47 is a set of credit 
policies purpose-built for RTOs and ISOs.
---------------------------------------------------------------------------

    \394\ 18 CFR 35.47.
    \395\ See Petition Attachments at 1.
---------------------------------------------------------------------------

    The Commission's statutorily required determination that the 
Proposed Exemption is consistent with the public interest and the 
purposes of the Act was supported, in considerable part, on the grounds 
that the credit reform policies mandated by FERC regulation 35.47 \396\ 
were consistent with the regulatory objectives of several of the core 
principles applicable to DCOs and the expectation that the Petitioners 
regulated by FERC would put those mandates into practice prior to the 
issuance of the exemption. Moreover, while ERCOT is not subject to 
regulation by FERC, the fact that these mandates were developed 
specifically for RTOs and ISOs suggests that holding ERCOT to these 
standards may well be appropriate.
---------------------------------------------------------------------------

    \396\ 18 CFR 35.47.
---------------------------------------------------------------------------

    While all Petitioners have represented that they have fulfilled 
certain requirements of FERC regulation 35.47, it appears that material 
gaps in complete execution remain.\397\ For example, due to requested 
extensions of time for compliance, certain Petitioners have only 
recently submitted tariffs to comply with FERC regulation 35.47(d) 
(accordingly, the tariffs remain subject to FERC approval) and, in some 
cases, full implementation is not expected until 2013.\398\ Because the 
implementation of the FERC credit reform policies is central to the 
Commission's determination that this exemption is in the public 
interest, it may well be that requiring Petitioners to have fully 
implemented such reforms prior to the issuance of a final order is 
necessary and appropriate.
---------------------------------------------------------------------------

    \397\ See generally FERC Order 741 Implementation Chart.
    \398\ See, e.g., FERC Order 741 Implementation Chart at 6 
(stating that ISO NE submitted a package of tariff changes with FERC 
to establish itself as the central counterparty for market 
participant transactions. The filing was made with a requested 
effective date of January 1, 2013).
---------------------------------------------------------------------------

    Second, the Commission proposes as an additional prerequisite to 
the issuance of an exemption to an RTO or ISO that the RTO or ISO 
provide a well-reasoned legal opinion or memorandum from outside 
counsel that, in the Commission's sole discretion, provides the 
Commission with assurance that the netting arrangements contained in 
the approach selected by the particular Petitioner to satisfy the 
obligations contained in FERC regulation 35.47(d) will, in fact, 
provide the Petitioner with enforceable rights of setoff against any of 
its market participants under title 11 of the United States Code \399\ 
in the event of the bankruptcy of the market participant.\400\
---------------------------------------------------------------------------

    \399\ See 11 U.S.C. 553.
    \400\ See text at n. 122 and text at n. 208 supra.
---------------------------------------------------------------------------

    There appears to be strong support for the proposition that a 
central counterparty structure would achieve the mutuality of 
obligation necessary for enforceable rights of setoff for the central 
counterparty, and Petitioners have represented that they either are, or 
plan on becoming, central counterparties.\401\ The Commission is 
concerned, however, that there is some ambiguity as to how individual 
Petitioners are interpreting the single counterparty requirement 
contained in FERC regulation 35.47(d) and whether the single 
counterparty structure chosen by individual Petitioners would provide 
enforceable setoff rights. For example, the Petition states that ERCOT 
``expects to adopt the central counterparty structure; however, this 
structure will not involve clearing, as that term applies to a 
designated clearing organization or swaps execution facility (i.e., the 
central counterparty does not act as a financial intermediary, nor is 
there any novation of transactions to a central counterparty).'' \402\ 
The Commission shares FERC's goal of ensuring that, in the event of 
bankruptcy of a participant, Petitioners are not prohibited from 
offsetting accounts receivable against accounts payable. Consistent 
with that goal and to mitigate any ambiguity regarding the bankruptcy 
protections provided by the central counterparty arrangements adopted 
by particular Petitioners, the Commission is proposing to require, as a 
prerequisite to the granting of the 4(c) request to a particular 
Petitioner, that the Commission be provided with a legal opinion or 
memoranda of counsel, applicable to the tariffs and operations of that 
Petitioner, that provides the Commission with assurance that the 
approach selected by the Petitioner to satisfy the obligations 
contained in FERC regulation 35.47(d) will provide the Petitioner with 
rights of setoff, enforceable against any of its market participants 
under title 11 of the United States Code in the event of the bankruptcy 
of the market participant. The Commission would retain sole discretion 
to accept or reject the adequacy of the legal opinion or memoranda for 
purposes of issuing the exemption. As noted above, the Commission is 
seeking comment on the preconditions set forth above and the costs and 
benefits thereof.
---------------------------------------------------------------------------

    \401\ The Commission also notes that not all of the central 
counterparty arrangements proposed by Petitioners have been approved 
by their respective regulators and/or become effective and, 
accordingly, are potentially subject to change. See, e.g., FERC 
Order 741 Implementation Chart at 5-6.
    \402\ Petition Attachments at 28.
---------------------------------------------------------------------------

    Third, the Proposed Exemption would be conditioned, as applicable 
to ERCOT, on the completion of an information sharing agreement, 
acceptable to the Commission, between the PUCT and the Commission. As 
with the 2005 Memorandum of Understanding (``MOU'') between the 
Commission and FERC, as discussed below, the Commission would expect 
the terms of a CFTC-PUCT MOU to provide that PUCT will furnish 
information in its possession to the CFTC upon its request and will 
notify the CFTC if any information requested by it is not in PUCT's 
possession. As noted above, the Commission is seeking comment on the 
preconditions set forth above and the costs and benefits thereof.
    The Proposed Exemption also contains certain information-sharing 
conditions. First, the Proposed Exemption is expressly conditioned upon 
the existing information sharing arrangement between the Commission and 
FERC, and, as noted above, the completion of an information sharing 
agreement between the Commission and PUCT. The Commission notes that 
the CFTC and FERC executed a MOU in 2005 pursuant to which the agencies 
have shared information successfully.\403\ The terms of the CFTC-FERC 
MOU provide that FERC will furnish information in its possession to the 
CFTC upon its request and will notify the CFTC if any information 
requested by it is not in FERC's possession.
---------------------------------------------------------------------------

    \403\ FERC MOU (Oct. 12, 2005) available at http://www.ferc.gov/legal/maj-ord-reg/mou/mou-33.pdf.
---------------------------------------------------------------------------

    The Petitioners recognize the need to be responsive to Commission 
requests for information and ``to assist the Commission as necessary in 
fulfilling its mission under the Act'' \404\ and Petitioners have 
indicated their intent to be responsive to requests for information by 
the Commission that will further enable the Commission to perform its 
regulatory and enforcement duties.\405\ Petitioners caveat this 
assistance, however, by stating that ``certain of the tariffs may 
require that

[[Page 52166]]

an ISO/RTO notify its members prior to providing information in 
response to a subpoena.'' \406\ This notice requirement could 
significantly compromise the Commission's enforcement efforts as there 
are likely to be situations where it would be neither prudent nor 
advisable for an entity under investigation by the Commission to learn 
of the investigation prior to Commission notification to the entity. 
Accordingly, the Proposed Exemption includes a second information-
sharing condition that requires that neither the tariffs nor any other 
governing documents of the particular RTO or ISO pursuant to whose 
tariff the agreement, contract or transaction is to be offered or sold, 
shall include any requirement that the RTO or ISO notify its members 
prior to providing information to the Commission in response to a 
subpoena or other request for information or documentation. The 
Commission specifically requests comment on this condition and as to 
whether there may be an alternative condition that the Commission might 
use to achieve the same result.
---------------------------------------------------------------------------

    \404\ Petition at 25.
    \405\ Id. at 25-26.
    \406\ Id. at 26.
---------------------------------------------------------------------------

    Finally, the Proposed Exemption expressly notes that it is based 
upon the representations made in the Petition and in the supporting 
materials provided to the Commission by the Petitioners and their 
counsel and that any material change or omission in the facts and 
circumstances pursuant to which the Proposed Exemption is granted might 
require the Commission to reconsider its finding that the exemption 
contained therein is appropriate and/or in the public interest. The 
Commission has also explicitly reserved the discretionary authority, to 
suspend, terminate or otherwise modify or restrict the exemption 
provided. The reservation of these rights is consistent with prior 
Commission practice and is necessary to provide the Commission with the 
flexibility to address relevant facts or circumstances as they arise.

B. Proposed Exemption

    Consistent with the determinations set forth above, the Commission 
hereby proposes to issue the following Order:
    Pursuant to its authority under section 4(c)(6), in accordance with 
CEA sections 4(c)(1) and (2), of the Commodity Exchange Act (``CEA'' or 
Act''), the Commodity Futures Trading Commission (``CFTC'' or 
``Commission'').
    1. Exempts, subject to the conditions and limitations specified 
herein, the purchase or sale of the electricity-related agreements, 
contracts, and transactions that are specified in paragraph 2 of this 
Order and any person or class of persons offering, entering into, 
rendering advice, or rendering other services with respect thereto, 
from all provisions of the CEA, except, in each case, the Commission's 
general anti-fraud, anti-manipulation and enforcement authority under 
the CEA, including, but not limited to, CEA sections 2(a)(1)(B), 4b, 
4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9 and 
13 and any implementing regulations promulgated thereunder including, 
but not limited to, Commission regulations 23.410(a) and (b), 32.4 and 
part 180.
    2. Scope. This exemption applies only to agreements, contracts and 
transactions that satisfy all of the following requirements:
    a. The agreement, contract or transaction is for the purchase and 
sale of one of the following electricity-related products:
    (1) The ``Financial Transmission Rights'' defined in paragraph 5(a) 
of this Order, except that the exemption shall only apply to such 
Financial Transmission Rights where:
    (a) Each Financial Transmission Right is linked to, and the 
aggregate volume of Financial Transmission Rights for any period of 
time is limited by, the physical capability (after accounting for 
counterflow) of the electricity transmission system operated by a 
Requesting Party offering the contract, for such period;
    (b) The Requesting Party serves as the market administrator for the 
market on which the Financial Transmission Rights are transacted;
    (c) Each party to the transaction is a member of the Requesting 
Party (or is the Requesting Party itself) and the transaction is 
executed on a market administered by that Requesting Party; and
    (d) The transaction does not require any party to make or take 
physical delivery of electricity.
    (2) ``Energy Transactions'' as defined in paragraph 5b of this 
Order.
    (3) ``Forward Capacity Transactions,'' as defined in paragraph 5c 
of this Order.
    (4) ``Reserve or Regulation Transactions'' as defined in paragraph 
5d of this Order.
    b. All parties to the agreement, contract or transaction are 
``appropriate persons,'' as defined sections 4(c)(3)(A) through (J) of 
the CEA or ``eligible contract participants'' as defined in section 
1a(18)(A) of the CEA and in Commission regulation 1.3(m).
    c. The agreement, contract or transaction is offered or sold 
pursuant to a Requesting Party's tariff and that tariff has been 
approved or permitted to take effect by:
    (1) In the case of the Electricity Reliability Council of Texas 
(``ERCOT''), the Public Utility Commission of Texas (``PUCT'') or
    (2) In the case of all other Requesting Parties, the Federal Energy 
Regulatory Commission (``FERC'').
    3. Applicability to particular regional transmission organizations 
(``RTOs'') and independent system operators (``ISOs''). Subject to the 
conditions contained in the Order, the Order applies to all Requesting 
Parties with respect to the transactions described in paragraph 2 of 
this Order.
    4. Conditions. The exemption provided by this Order is expressly 
conditioned upon the following:
    a. Information sharing: With respect to ERCOT, information sharing 
arrangements between the Commission and PUCT that are acceptable to the 
Commission are executed and continue to be in effect. With respect to 
all other Requesting Parties, information sharing arrangements between 
the Commission and FERC that are acceptable to the Commission continue 
to be in effect.
    b. Notification of requests for information: With respect to each 
Requesting Party, neither the tariffs nor any other governing documents 
of the particular RTO or ISO pursuant to whose tariff the agreement, 
contract or transaction is to be offered or sold, shall include any 
requirement that the RTO or ISO notify its members prior to providing 
information to the Commission in response to a subpoena or other 
request for information or documentation.
    5. Definitions. The following definitions shall apply for purposes 
of this Order:
    a. A ``Financial Transmission Right'' is a transaction, however 
named, that entitles one party to receive, and obligates another party 
to pay, an amount based solely on the difference between the price for 
electricity, established on an electricity market administered by a 
Requesting Party, at a specified source (i.e., where electricity is 
deemed injected into the grid of a Requesting Party) and a specified 
sink (i.e., where electricity is deemed withdrawn from the grid of a 
Requesting Party). The term ``Financial Transmission Rights'' includes 
Financial Transmission Rights and Financial Transmission Rights in the 
form of options (i.e., where one party has only the obligation to pay, 
and the other party only the right to receive, an amount as described 
above).
    b. ``Energy Transactions'' are transactions in a ``Day-Ahead 
Market''

[[Page 52167]]

or ``Real-Time Market,'' as those terms are defined in paragraphs 5e 
and 5f of this Order, for the purchase or sale of a specified quantity 
of electricity at a specified location (including ``Demand Response,'' 
as defined in paragraph 5c(2) of this Order, where:
    (1) The price of the electricity is established at the time the 
transaction is executed;
    (2) Performance occurs in the Real-Time Market by either
    (a) Delivery or receipt of the specified electricity, or
    (b) A cash payment or receipt at the price established in the Real-
Time Market; and
    (3) The aggregate cleared volume of both physical and cash-settled 
energy transactions for any period of time is limited by the physical 
capability of the electricity transmission system operated by a 
Requesting Party for that period of time.
    c. ``Forward Capacity Transactions'' are transactions in which a 
Requesting Party, for the benefit of load-serving entities, purchases 
any of the rights described in subparagraphs (1), (2) and (3) below. In 
each case, to be eligible for the exemption, the aggregate cleared 
volume of all such transactions for any period of time shall be limited 
to the physical capability of the electricity transmission system 
operated by a Requesting Party for that period of time.
    (1) ``Generation Capacity,'' meaning the right of a Requesting 
Party to:
    (a) Require certain sellers to maintain the interconnection of 
electric generation facilities to specific physical locations in the 
electric-power transmission system during a future period of time as 
specified in the Requesting Party's Tariff;
    (b) Require such sellers to offer specified amounts of electric 
energy into the Day-Ahead or Real-Time Markets for electricity 
transactions; and
    (c) Require, subject to the terms and conditions of a Requesting 
Party's Tariff, such sellers to inject electric energy into the 
electric power transmission system operated by the Requesting Party;
    (2) ``Demand Response,'' meaning the right of a Requesting Party to 
require that certain sellers of such rights curtail consumption of 
electric energy from the electric power transmission system operated by 
a Requesting Party during a future period of time as specified in the 
Requesting Party's Tariff; or
    (3) ``Energy Efficiency,'' meaning the right of a Requesting Party 
to require specific performance of an action or actions that will 
reduce the need for Generation Capacity or Demand Response Capacity 
over the duration of a future period of time as specified in the 
Requesting Party's Tariff.
    d. ``Reserve or Regulation Transactions'' are transactions:
    (1) In which a Requesting Party, for the benefit of load-serving 
entities and resources, purchases, through auction, the right, during a 
period of time as specified in the Requesting Party's Tariff, to 
require the seller of such right to operate electric facilities in a 
physical state such that the facilities can increase or decrease the 
rate of injection or withdrawal of a specified quantity of electricity 
into or from the electric power transmission system operated by the 
Requesting Party with:
    (a) Physical performance by the seller's facilities within a 
response time interval specified in a Requesting Party's Tariff 
(Reserve Transaction); or
    (b) Prompt physical performance by the seller's facilities (Area 
Control Error Regulation Transaction);
    (2) For which the seller receives, in consideration, one or more of 
the following:
    (a) Payment at the price established in the Requesting Party's Day-
Ahead or Real-Time Market, as those terms are defined in paragraphs 5f 
and 5g of this Order, price for electricity applicable whenever the 
Requesting Party exercises its right that electric energy be delivered 
(including Demand Response, '' as defined in paragraph 5c(2) of this 
Order);
    (b) Compensation for the opportunity cost of not supplying or 
consuming electricity or other services during any period during which 
the Requesting Party requires that the seller not supply energy or 
other services;
    (c) An upfront payment determined through the auction administered 
by the Requesting Party for this service;
    (d) An additional amount indexed to the frequency, duration, or 
other attributes of physical performance as specified in the Requesting 
Party's Tariff; and
    (3) In which the value, quantity, and specifications of such 
transactions for a Requesting Party for any period of time shall be 
limited to the physical capability of the electricity transmission 
system operated by the Requesting Party for that period of time.
    e. ``Day-Ahead Market'' means an electricity market administered by 
a Requesting Party on which the price of electricity at a specified 
location is determined, in accordance with the Requesting Party's 
Tariff, for specified time periods, none of which is later than the 
second operating day following the day on which the Day-Ahead Market 
clears.
    f. ``Real-Time Market'' means an electricity market administered by 
a Requesting Party on which the price of electricity at a specified 
location is determined, in accordance with the Requesting Party's 
tariff, for specified time periods within the same 24-hour period.
    g. ``Requesting Party'' means California Independent Service 
Operator Corporation (``CAISO''); ERCOT; ISO New England Inc. (``ISO 
NE''); Midwest Independent Transmission System Operator, Inc. 
(``MISO''); New York Independent System Operator, Inc. (``NYISO'') or 
PJM Interconnection, L.L.C. (``PJM''), or any successor in interest to 
any of the foregoing.
    h. ``Tariff.'' Reference to a Requesting Party's ``tariff'' 
includes a tariff, rate schedule or protocol.
    i. ``Petition'' means the consolidated petition for an exemptive 
order under 4(c)(6) of the CEA filed by CAISO, ERCOT, ISO NE., MISO, NY 
ISO and PJM on February 7, 2012, as later amended.
    6. Effective Date. This Order is effective immediately.
    This order is based upon the representations made in the 
consolidated petition for an exemptive order under 4(c) of the CEA 
filed by the Requesting Parties \407\ and supporting materials provided 
to the Commission by the Requesting Parties and their counsel. Any 
material change or omission in the facts and circumstances pursuant to 
which this order is granted might require the Commission to reconsider 
its finding that the exemption contained therein is appropriate and/or 
in the public interest. Further, the Commission reserves the right, in 
its discretion, to revisit any of the terms and conditions of the 
relief provided herein, including but not limited to, making a 
determination that certain entities and transactions described herein 
should be subject to the Commission's full

[[Page 52168]]

jurisdiction, and to condition, suspend, terminate or otherwise modify 
or restrict the exemption granted in this order, as appropriate, upon 
its own motion.
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    \407\ In the Matter of the Petition for an Exemptive Order Under 
Section 4(c) of the Commodity Exchange Act by California Independent 
Service Operator Corporation (``CAISO''); In the Matter of the 
Petition for an Exemptive Order Under Section 4(c) of the Commodity 
Exchange Act by the Electric Reliability Council of Texas, Inc. 
(``ERCOT''); In the Matter of the Petition for an Exemptive Order 
Under Section 4(c) of the Commodity Exchange Act by ISO New England 
Inc. (``ISO NE''); In the Matter of the Petition for an Exemptive 
Order Under Section 4(c) of the Commodity Exchange Act by Midwest 
Independent Transmission System Operator, Inc. (``MISO''); In the 
Matter of the Petition for an Exemptive Order Under Section 4(c) of 
the Commodity Exchange Act by New York Independent System Operator, 
Inc. (``NYISO''); and In the Matter of the Petition for an Exemptive 
Order Under Section 4(c) of the Commodity Exchange Act by PJM 
Interconnection, L.L.C. (``PJM'') (Feb. 7, 2012, as amended June 11, 
2012).
---------------------------------------------------------------------------

IX. Related Matters

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act \408\ (``RFA'') requires that 
agencies consider whether the Proposed Exemption will have a 
significant economic impact on a substantial number of small entities 
and, if so, provide a regulatory flexibility analysis respecting the 
impact. The Commission believes that the Proposed Exemption will not 
have a significant economic impact on a substantial number of small 
entities. The Proposed Exemption detailed in this release would affect 
organizations including Petitioners and eligible contract participants 
(``ECPs'').\409\ The Commission has previously determined that ECPs are 
not ``small entities'' for purposes of the RFA.\410\ In addition, the 
Commission believes that Petitioners should not be considered small 
entities based on the central role they play in the operation of the 
electronic transmission grid and the creation of organized wholesale 
electric markets that are subject to FERC and PUCT regulatory 
oversight,\411\ analogous to functions performed by DCMs and DCOs, 
which the Commission has determined not to be small entities.\412\
    Accordingly, the Commission does not expect the Proposed Exemption 
to have a significant impact on a substantial number of entities. 
Therefore, the Chairman, on behalf of the Commission, hereby certifies, 
pursuant to 5 U.S.C. 605(b), that the Proposed Exemption would not have 
a significant economic impact on a substantial number of small 
entities. The Commission invites the public to comment on whether the 
entities covered by this Proposed Exemption should be considered small 
entities for purposes of the RFA, and, if so, whether there is a 
significant impact on a substantial number of entities.
---------------------------------------------------------------------------

    \408\ 5 U.S.C. 601 et seq.
    \409\ Under CEA section 2(e), only ECPs are permitted to 
participate in a swap subject to the end-user clearing exception.
    \410\ See Opting Out of Segregation, 66 FR 20740 at 20743, Apr. 
25, 2001.
    \411\ See RFA analysis as conducted by FERC regarding the 5 
Petitioners, CAISO, NYISO, PJM, MISO and ISO NE., https://www.federalregister.gov/articles/2011/10/26/2011-27626/enhancement-of-electricity-market-surveillance-and-analysis-through-ongoing-electronic-delivery-of#h-17.
    Commission staff also performed an independent RFA analysis 
based on Subsector 221 of Sector 22 (utilities companies) which 
defines any small utility corporation as one that does not generate 
more than 4 million of megawatts of electricity per year, and 
Subsector 523 of Sector 52 (Securities, Commodity Contracts, and 
Other Financial Investments and Related Activities) of the SBA, 13 
CFR 121.201 (1-1-11 Edition), which identifies a small business size 
standard of $7 million or less in annual receipts. Staff concludes 
that none of the Petitioners is a small entity, based on the 
following information:
    MISO reports 594 million megawatt hours per year, https://www.midwestiso.org/Library/Repository/Communication%20Material/Corporate/Corporate%20Fact%20Sheet.pdf;
    ERCOT reports 335 million megawatt hours per year, http://www.ercot.com/content/news/presentations/2012/ERCOT_Quick_Facts_June_%202012.pdf;
    CAISO reports 200 million megawatts per year, http://www.caiso.com/Documents/CompanyInformation_Facts.pdf;
    NYISO reports 17 million megawatts per month, which calculates 
to 204 megawatts per year, http://www.nyiso.com/public/about_nyiso/nyisoataglance/index.jsp;
    PJM reports $35.9 billion billed in 2011, http://pjm.com/markets-and-operations.aspx; and
    ISO NE reports 32,798 gigawatt hours in the first quarter of 
2011, which translates into almost 33 million megawatts for the 
first quarter of 2011, http://www.iso-ne.com/markets/mkt_anlys_rpts/qtrly_mktops_rpts/2012/imm_q1_2012_qmr_final.pdf.
    \412\ See A New Regulatory Framework for Clearing Organizations, 
66 FR 45604, 45609, Aug. 29, 2001(DCOs); Policy Statement and 
Establishment of Definitions of ``Small Entities'' for Purposes of 
the Regulatory Flexibility Act, 47 FR 18618, 18618-18619, Apr. 30, 
1982 (DCMs).
---------------------------------------------------------------------------

B. Paperwork Reduction Act

    The purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 
et seq. (``PRA'') are, among other things, to minimize the paperwork 
burden to the private sector, ensure that any collection of information 
by a government agency is put to the greatest possible uses, and 
minimize duplicative information collections across the government. The 
PRA applies to all information, ``regardless of form or format,'' 
whenever the government is ``obtaining, causing to be obtained [or] 
soliciting'' information, and includes requires ``disclosure to third 
parties or the public, of facts or opinions,'' when the information 
collection calls for ``answers to identical questions posed to, or 
identical reporting or recordkeeping requirements imposed on, ten or 
more persons.'' The PRA would not apply in this case given that the 
exemption would not impose any new recordkeeping or information 
collection requirements, or other collections of information on ten or 
more persons that require approval of the Office of Management and 
Budget (``OMB'').

C. Cost-Benefit Considerations

1. Consideration of Costs and Benefits
a. Introduction
    Section 15(a) of the CEA \413\ requires the Commission to consider 
the costs and benefits of its actions before promulgating a regulation 
under the CEA or issuing certain orders. In proposing this exemption, 
the Commission is required by section 4(c)(6) to ensure the same is 
consistent with the public interest. In much the same way, section 
15(a) further specifies that the costs and benefits shall be evaluated 
in light of five broad areas of market and public concern: (1) 
Protection of market participants and the public; (2) efficiency, 
competitiveness and financial integrity of futures markets; (3) price 
discovery; (4) sound risk management practices; and (5) other public 
interest considerations. The Commission considers the costs and 
benefits resulting from its discretionary determinations with respect 
to the section 15(a) factors.
---------------------------------------------------------------------------

    \413\ 7 U.S.C. 19(a).
---------------------------------------------------------------------------

    As discussed above, in response to a Petition from certain regional 
transmission organizations and independent system operators, the 
Commission is proposing to exempt specified transactions from the 
provisions of the CEA and Commission regulations with the exception of 
those prohibiting fraud and manipulation (i.e., sections 2(a)(1)(B), 
4b, 4c(b), 4o, 4s(h)(1)(A), 4s(h)(4)(A), 6(c), 6(d), 6(e), 6c, 6d, 8, 9 
and 13 and any implementing regulations promulgated thereunder 
including, but not limited to, Commission regulations 23.410(a) and 
(b), 32.4 and part 180). The Proposed Exemption is transaction-
specific--that is, it would exempt contracts, agreements and 
transactions for the purchase or sale of the limited set of 
electricity-related products that are offered or entered into in a 
market administered by a Petitioner pursuant to that Petitioner's 
tariff or protocol for the purposes of allocating such Petitioner's 
physical resources.
    More specifically, the Commission is proposing to exempt from most 
provisions of the CEA certain ``financial transmission rights,'' 
``energy transactions,'' ``forward capacity transactions,'' and 
``reserve or regulation transactions,'' as those terms are defined in 
the proposed Order, if such transactions are offered or entered into 
pursuant to a tariff under which a Petitioner operates that has been 
approved by FERC or the Public Utility

[[Page 52169]]

Commission of Texas, as applicable. The Proposed Exemption extends to 
any persons (including Petitioners, their members and their market 
participants) offering, entering into, rendering advice, or rendering 
other services with respect to such transactions. Important to the 
Commission's Proposed Exemption is the Petitioners' representations 
that the aforementioned transactions are: (i) Tied to the physical 
capacity of the Petitioner's electricity grids; (ii) used to promote 
the reliable delivery of electricity; and (iii) are intended for use by 
commercial participants that are in the business of generating, 
transmitting and distributing electricity. In other words, these are 
not purely financial transactions; rather, they are inextricably linked 
to, and limited by, the capacity of the grid to physically deliver 
electricity.
    In the discussion that follows, the Commission considers the costs 
and benefits of the proposed Order to the public and market 
participants generally, including the costs and benefits of the 
conditions precedent that must be satisfied before a Petitioner may 
claim the exemption.
b. Proposed Baseline
    The Commission's proposed baseline for consideration of the costs 
and benefits of this Proposed Exemption are the costs and benefits that 
the public and market participants (including Petitioners) would 
experience in the absence of this proposed regulatory action. In other 
words, the proposed baseline is an alternative situation in which the 
Commission takes no action, meaning that the transactions that are the 
subject of this Petition would be required to comply with all of the 
CEA and Commission regulations, as may be applicable. In such a 
scenario, the public and market participants would experience the full 
benefits and costs related to the CEA and Commission regulations, but 
as discussed in detail above, the transactions would still be subject 
to the congruent regulatory regimes of the FERC and PUCT. In areas 
where the Commission believed additional requirements were necessary to 
ensure the public interest, the Commission proposed additional 
requirements (e.g., the requirement that Petitioners submit a 
memorandum or opinion of counsel to the Commission confirming the 
enforceability of the Petitioners' netting arrangements in the event of 
a bankruptcy of a participant).
    The Commission also considers the regulatory landscape as it exists 
outside the context of the Dodd-Frank Act's enactment. Here too, it is 
important to highlight Petitioners' representations that each of the 
transactions for which an exemption is requested is already subject to 
a long-standing, comprehensive regulatory framework for the offer and 
sale of such transactions established by FERC, or in the case of ERCOT, 
the PUCT. For example, the costs and benefits attendant to the 
Commission's condition that transactions be entered into between 
``appropriate persons'' as described in CEA section 4(c)(3) has an 
analog outside the context of the Dodd-Frank Act in FERC's minimum 
criteria for RTO market participants as set forth in FERC Order 741.
    In the discussion that follows, where reasonably feasible, the 
Commission endeavors to estimate quantifiable dollar costs of the 
Proposed Exemption. The benefits of the Proposed Exemption, as well as 
certain costs, however, are not presently susceptible to meaningful 
quantification. Most of the costs arise from limitations on the scope 
of the proposed Order, and many of the benefits arise from avoiding 
defaults and their implications that are clearly large in magnitude, 
but impracticable to estimate. Where it is unable to quantify, the 
Commission discusses proposed costs and benefits in qualitative terms.
c. Costs
    The Proposed Order is exemptive and would provide potentially 
eligible transactions with relief from the requirements of the CEA and 
attendant Commission regulations. As with any exemptive rule or order, 
the proposal is permissive, meaning that Petitioners were not required 
to request it and are not required to rely on it. Accordingly, the 
Commission assumes that Petitioners required and would rely on the 
Proposed Exemption only if the anticipated benefits warrant the costs 
of the same. Here, the Proposed Exemption identifies certain conditions 
precedent to the grant of the Proposed Exemption. The Commission is of 
the view that, as a result of the conditions, Petitioners, market 
participants and the public would experience minimal, if any, ongoing, 
incremental costs as a result of these conditions. This is so because, 
as Petitioners certify pursuant to CFTC Rule 140.99(c)(3)(ii), the 
attendant conditions are substantially similar to requirements that 
Petitioners and their market participants already incur in complying 
with FERC or PUCT regulation.
    The first condition--that all parties to the agreements, contracts 
or transactions that are covered by the Proposed Exemption must be 
either ``appropriate persons,'' as such term is defined in sections 
4(c)(3)(A) through (J) of the Act, or ``eligible contract 
participants,'' as such term is defined in section 1a(18)(A) of the Act 
and in Commission regulation 1.3(m)--should not impose any significant, 
incremental costs because Petitioners must already incur costs in 
complying with their existing legal and regulatory obligations under 
the FPA and FERC or PUCT regulations, which mandate that only eligible 
market participants may engage in the transactions that are the subject 
of this proposal, as explained in section V.B.3. above.
    The second is that the agreements, contracts or transactions that 
are covered by the Proposed Exemption must be offered or sold pursuant 
to a Petitioner's tariff, which has been approved or permitted to take 
effect by: (1) In the case of ERCOT, the PUCT or; (2) in the case of 
all other Petitioners, FERC. This is a statutory requirement for the 
exemption. See CEA 4(c)(6)(A), (B). Moreover, requiring that 
Petitioners' not operate outside their tariff requirements derives from 
existing legal requirements and is not a cost attributable to this 
proposal.
    Third, as described in section V.B.1. above, FERC and PUCT impose 
on their respective Petitioners, and their market monitors, various 
information management requirements. These existing requirements are 
not materially different from the condition that none of a Petitioner's 
tariffs or other governing documents may include any requirement that 
the Petitioner notify a member prior to providing information to the 
Commission in response to a subpoena or other request for information 
or documentation. However, certain existing tariffs (see footnote 406 
and accompanying text) may not currently meet the condition; therefore 
the Commission requests comment as to whether this condition imposes a 
significant burden or increase in cost on Petitioners with such 
tariffs, and whether there are alternative conditions that may be used 
to achieve a similar result. Further, Petitioners have agreed to 
provide any information to the Commission upon request that will 
further enable the Commission to perform its regulatory and enforcement 
duties. While the Commission is mindful that the process of responding 
to subpoenas or requests for information involves costs, such subpoenas 
and requests for information, and thus the associated costs, are 
independent of the current proposed Order.
    Fourth, information sharing arrangements that are satisfactory to 
the Commission between the Commission and FERC, and the Commission and 
PUCT, must be in full force and effect

[[Page 52170]]

is not a cost to Petitioners or to other members of the public but, in 
the case of FERC, has been an inter-agency norm since 2005. Moreover, 
and with respect to the proposed condition that would require the 
Commission and PUCT to enter into an information sharing arrangement, 
the sharing of information between government agencies is an efficient 
means of reducing governmental costs.
    Finally, the Commission is proposing to require, as a prerequisite 
to the granting of the 4(c)(6) request to a particular Petitioner, that 
the Petitioner provide the Commission with a legal opinion or memoranda 
of counsel that provides the Commission with assurance that the 
approach selected by the Petitioner to satisfy the obligations 
contained in FERC regulation 35.47(d) will provide the Petitioner with 
enforceable rights of setoff against any of its market participants 
under title 11 of the United States Code in the event of the bankruptcy 
of the market participant. For instance, for transactions in a DCO 
context, the DCO is clearly the central counterparty. In the case of 
most ISOs and RTOs, there has been some ambiguity in this regard. As a 
result of this ambiguity, in the event of the bankruptcy of a 
participant, there is a concern that ISOs and RTOs may be liable to pay 
a bankrupt participant for transactions in which that participant is 
owed funds, without the ability to net amounts owed by the market 
participant in a bankruptcy, despite the fact that the tariffs 
submitted by the Petitioners to FERC include explicit language 
permitting set-off and netting.\414\ As FERC expressed in the FERC 
Credit Rulemaking and the FERC Order on Rehearing, there is a risk that 
the explicit tariff language may be insufficient to protect the 
Petitioners in bankruptcy, and even if this risk were to be at a low 
probability of manifestation, there would be a high cost to market 
participants and the stability of the markets if it did so.\415\ The 
Commission would require that the opinions or memoranda would be 
addressed to the Commission and would be signed on behalf of the law 
firm that is issuing the opinion, rather than by specific partners and/
or associates. The Commission also would require the text of the 
opinion or memoranda to satisfy certain enumerated criteria. Based on 
the Laffey Matrix for 2012, assuming the opinion is prepared by a 
seasoned attorney (with 20 plus years of legal practice), his/her 
hourly rate ($734 per hour) multiplied by the amount of hours taken to 
prepare the opinion, will be the basic cost of such an opinion.\416\ 
The Commission estimates that the cost of such memoranda will range 
between $15,000 and $30,000, part of which depends on the complexity of 
the analysis necessary to support the conclusion that the Petitioner's 
setoff rights are enforceable, and assuming that the opinion will take 
20-40 hours to prepare.\417\
d. Benefits
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    \414\ See, e.g., In re Semcrude, 399 B.R. 388, 393 (Bank. D. 
Del. 2009) (stating that ``debts are considered `mutual' only when 
`they are due to and from the same persons in the same capacity.' 
'').
    \415\ See 75 FR at 65955.
    \416\ The Court in Laffey v. Northwest Airlines, Inc., 572 
F.Supp. 354, 371 (D.D.C. 1983) ruled that hourly rates for attorneys 
practicing civil law in the Washington, DC metropolitan area could 
be categorized by years in practice and adjusted yearly for 
inflation. For 2012 Laffey Matrix rates, see http://www.justice.gov/usao/dc/divisions/civil_Laffey_Matrix_2003-2012.pdf.
    \417\ There are possibilities of economies of scale if multiple 
Petitioners share the same counsel in preparing these memoranda or 
opinions.
---------------------------------------------------------------------------

    In proposing this exemption, the Commission is required by section 
4(c)(6) to ensure the same is consistent with the public interest. In 
much the same way, CEA section 15(a) requires that the Commission 
consider the benefits to the public of its action. In meeting its 
public interest obligations under both 4(c)(6) and 15(a), the 
Commission in sections V.B.1. and V.D. proposes a detailed 
consideration of the nature of the transactions and FERC and PUCT 
regulatory regimes, including whether the protections provided by those 
regimes are, at a minimum, congruent with the Commission's oversight of 
DCOs and SEFs.
    This exercise is not rote; rather, in proposing that this exemption 
is in the public interest, the Commission's comprehensive action 
benefits the public and market participants in several substantive 
ways, as discussed below. In addition, by considering a single 
application from all Petitioners at the same time, and proposing to 
allow all provisions of the exemption to apply to all Petitioners and 
their respective market participants with respect to each category of 
electricity-related products described in the Petition, regardless of 
whether such products are offered or entered into at the current time 
pursuant to an individual Petitioner's tariff, this proposal provides a 
cost-mitigating, procedural efficiency. The Commission's proposal also 
reduces the potential need for future amendments to the final exemption 
in order for one Petitioner to offer or enter into the same type of 
transactions currently offered by another.
    In more substantive terms, by requiring that the transactions at 
issue are, in fact, limited to those that are administered by the 
petitioning RTOs/ISOs, and are inextricably linked to the organized 
wholesale electricity markets that are subject to FERC and PUCT 
regulation and oversight, the Commission limits the scope of the 
proposed relief. In so doing, the proposal minimizes the potential that 
purely financial risk can accumulate outside the comprehensive regime 
for swaps regulation established by Congress in the Dodd-Frank Act and 
implemented by the Commission. The mitigation of such risk inures to 
the benefit of Petitioners, market participants and the public, 
especially Petitioners' members and electricity ratepayers.
    The condition that only ``appropriate persons'' may enter the 
transactions that are the subject of this proposal benefits the public 
and market participants by ensuring that (1) only persons with 
resources sufficient to understand and manage the risks of the 
transactions are permitted to engage in the same, and (2) persons 
without such resources do not impose credit costs on other participants 
(and the ratepayers for such other participants). Further, the 
condition requiring that the transactions only be offered or sold 
pursuant to a FERC or PUCT tariff benefits the public by, for example, 
ensuring that the transactions are subject to a regulatory regime that 
is focused on the physical provision of reliable electric power, and 
also has credit requirements that are designed to achieve risk 
management goals congruent with the regulatory objectives of the 
Commission's DCO Core Principles. Absent these and other similar 
limitations on participant- and financial-eligibility, the integrity of 
the markets at issue could be compromised and members and ratepayers 
left unprotected from potentially significant losses. Moreover, the 
Commission's requirement that Petitioner's file an opinion of counsel 
regarding the right of set-off in bankruptcy provides a benefit in that 
the analytical process necessary to formulate such an opinion would 
highlights risks faced by the Petitioners, and permit them to adapt 
their structure and procedures in a manner best calculated to mitigate 
such risks, and thus helps ensure the orderly handling of financial 
affairs in the event a participant fails as a result of these 
transactions.
    Finally, the Commission's retention of its authority to redress any 
fraud or manipulation in connection with the transactions at issue 
protects market participants and the public generally, as

[[Page 52171]]

well as the financial markets for electricity products. For example, a 
condition precedent to the Proposed Exemption is effective information 
sharing arrangements between the FERC and the Commission, and PUCT and 
the Commission. Through such an arrangement, the Commission expects 
that it will be able to request information necessary to examine 
whether activity on Petitioners' markets is adversely affecting the 
Commission regulated markets. Further, the condition precedent that 
Petitioners not notify a member prior to providing the Commission with 
information will help maximize the effectiveness of the Commission's 
enforcement program.
e. Costs and Benefits as Compared to Alternatives
    The Commission considered alternatives to the proposed rulemaking. 
For instance, the Commission could have chosen: (i) Not to propose an 
exemption or (ii), as Petitioners' requested, to provide relief for

``the purchase and sale of a product or service that is directly 
related to, and a logical outgrowth of, any [of Petitioners'] core 
functions as an ISO/RTO * * * and all services related thereto.'' 
Regarding this latter request, the Commission understands the Petition 
as requesting relief for transactions not yet in existence. In this 
Order, the Commission proposes what it considers a measured approach--
in terms of the implicated costs and benefits of the exemption--given 
its current understanding of transactions at issue.

    Regarding the first alternative, the Commission considered that 
Congress, in the Dodd-Frank Act, required the Commission to exempt 
certain contracts, agreements or transactions from duties otherwise 
required by statute or Commission regulation by adding a new section 
that permits the Commission to exempt from its regulatory oversight 
agreements, contracts, or transactions traded pursuant to an RTO or ISO 
tariff that has been approved or permitted to take effect by FERC or a 
State regulatory authority, as applicable, where such exemption was in 
the public interest and consistent with the purposes of the CEA. Having 
concluded that the instant exemption meets those tests, the Commission 
proposes that a no exemption alternative would be inconsistent with 
Congressional intent and contrary to the public interest. At the same 
time, however, the Commission believes it would also be inappropriate 
to adopt the second alternative.
    The second alternative would extend the Proposed Exemption to all 
``logical outgrowths'' of the transactions at issue. The Commission 
proposes that such an exemption would be contrary to the Commission's 
obligation under section 4(c) of the Act. As noted above, the authority 
to issue an exemption from the CEA provided by section 4(c) of the Act 
may not be automatically or mechanically exercised. Rather, the 
Commission is required to affirmatively determine, inter alia, that the 
exemption would be consistent with the public interest and the purposes 
of the Act.
    With respect to the four groups of transactions detailed in the 
Proposed Exemption, the Commission's finding that the Proposed 
Exemption would be in the public interest and would be consistent with 
the purposes of the CEA is grounded, in part, on known transaction 
characteristics and market circumstances described in the Petition that 
may or may not be shared by other, as yet undefined, transactions 
engaged in by the Petitioners or other RTO or ISO market participants. 
Similarly, unidentified transactions might include novel features or 
have market implications or risks that are beyond evaluation at the 
present time, and are not present in the specified transactions.
2. Consideration of CEA Section 15(a) Factors with respect to the 
Proposed Order
a. Protection of Market Participants and the Public
    In proposing the exemption as it did, the Commission endeavored to 
provide relief that was in the public interest. A key component of that 
consideration is the assessment of how the Proposed Exemption protects 
market participants and the public. As discussed above, market 
participants and the public are protected by the existing regulatory 
structure that includes congruent regulatory goals, and by the four 
conditions placed upon the proposed relief by requiring, inter alia, 
that: (i) Only those with the financial wherewithal are permitted to 
engage in the transactions; (ii) the transactions at issue must be 
within the scope of a Petitioner's FERC or PUCT tariff; (iii) no 
advance notice to members of information requests to Petitioners from 
the Commission; and (iv) the Commission and FERC, and PUCT and the 
Commission, must have an information sharing arrangement in full force 
and effect. Additionally, the requirement that Petitioners file and 
opinion of counsel regarding bankruptcy matters provides additional 
information from which the Commission may be assured that the netting 
that Petitioners rely upon as an integral part of their risk management 
is in fact enforceable.
b. Efficiency, Competitiveness, and Financial Integrity of Futures 
Markets
    To the extent that the transactions at issue could have an indirect 
effect on the efficiency, competitiveness, and financial integrity of 
the markets subject to the Commission's jurisdiction, the relief is 
tailored in such a way as to mitigate any such effects. More 
specifically, the Proposed Exemption is limited to the transactions 
identified and defined herein. In this way, the Commission eliminates 
the potential that as-yet-unknown transactions not linked to the 
physicality of the electric system may be offered or sold under this 
Proposed Exemption. Further, the Commission's retention of its full 
enforcement authority will help ensure that any misconduct in 
connection with the exempted transactions does not jeopardize the 
financial integrity of the markets under the Commission's jurisdiction.
c. Price Discovery
    As discussed above in section V.B.4, with respect to FTRs, Forward 
Capacity Transactions, and Reserve or Regulation Transactions, these 
transactions do not directly impact on transactions taking place on 
Commission regulated markets--they are not used for price discovery and 
are not used as settlement prices for other transactions in Commission 
regulated markets
    With respect to Energy Transactions, these transactions do have a 
relationship to Commission regulated markets because they can serve as 
a source of settlement prices for other transactions within Commission 
jurisdiction. Granting the Proposed Exemption, however, does not mean 
that these transactions will be unregulated. To the contrary, as 
explained in more detail above, Petitioners have market monitoring 
systems in place to detect and deter manipulation that takes place on 
their markets. Further, as noted above, the Commission retains all of 
its anti-fraud and anti-manipulation authority as a condition of the 
Proposed Exemption.
d. Sound Risk Management Practices
    As with the other areas of cost-benefit consideration, the 
Commission's evaluation of sound risk management practices occurs 
throughout this release, notably in sections V.D.4.a. and V.E.7.a. 
which consider the Petitioners' risk

[[Page 52172]]

management policies and procedures, and the related requirements of 
FERC and PUCT (in particular, FERC Order 741 on Credit Policies), in 
light of the Commission's risk management requirements for DCOs and 
SEFs.
e. Other Public Interest Considerations
    The Commission proposes that because these transactions are part 
of, and inextricably linked to, the organized wholesale, physical 
electricity markets that are subject to regulation and oversight of 
FERC or PUCT, as applicable, the Commission's Proposed Exemption, with 
its attendant conditions, requirements, and limitations, is in the 
public interest. In so considering, the Commission proposes that the 
public interest is best served if the Commission dedicates its 
resources to the day-to-day oversight of its registrants and the 
financial markets subject to the CEA.
3. Request for Public Comment on Costs and Benefits
    The Commission invites public comment on its cost-benefit 
considerations and dollar cost estimates, including the consideration 
of reasonable alternatives. Commenters are invited to submit any data 
or other information that they may have quantifying or qualifying the 
costs and benefits of the proposal with their comment letters.

X. Request for Comment

    The Commission requests comment on all aspects of its Proposed 
Exemption. In addition, the Commission specifically requests comment on 
the specific provisions and issues highlighted in the discussion above 
and on the issues presented in this section. For each comment 
submitted, please provide a detailed rationale supporting the response.
    1. Has the Commission used the appropriate standard in analyzing 
whether the Proposed Exemption is in the public interest?
    2. The Commission recognizes that there may be differences among 
the Petitioners with respect to size, scope of business, and underlying 
regulatory framework. Should any provisions of the Proposed Exemption 
be modified or adjusted, or should any conditions be added, to reflect 
such differences?
    3. Is the scope set forth for the Proposed Exemption sufficient to 
allow for innovation? Why or why not? If not, how should the scope be 
modified to allow for innovation without exempting products that may be 
materially different from those reviewed by the Commission? Should the 
Commission exempt such products without considering whether such 
exemption is in the public interest? Consider this question also with 
the understanding that any Petitioner (or any entity that is not a 
current petitioner) may separately petition the Commission for an 
amendment of any final order granted in this matter.
    4. Should the Commission exercise its authority pursuant to section 
4(c)(3)(K) of the CEA to extend the Proposed Exemption to agreements 
contracts or transactions that are entered into by parties other than 
``appropriate persons'' as defined in sections 4(c)(3)(A) through (J) 
of the CEA, or ``eligible contract participants,'' as defined in 
section 1a(18)(A) or (B) of the Act and Commission regulation 1.3(m)? 
If so, please provide a description of the additional parties that 
should be included.
    a. The Commission specifically seeks comment regarding whether 
(and, if so, why) it is in the public interest to expand the list of 
such parties to include market participants who ``active[ly] 
participat[e] in the generation, transmission or distribution of 
electricity'' but who are neither ``appropriate persons,'' as defined 
in section 4(c)(3)(A) through (J) of the CEA, nor ``eligible contract 
participants,'' as defined in section 1a(18)(A) of the Act and 
Commission regulation 1.3(m)?
    b. If any additional parties should be added, please provide:
    (1) An explanation of the financial or other qualifications of such 
persons or the available regulatory protections that would render such 
persons ``appropriate persons.''
    (2) The basis for the conclusion that such parties could bear the 
financial risks of the agreements, contracts, and transactions to be 
exempted by the Proposed Exemption.
    (3) The basis for the conclusion that including such parties would 
not have any adverse effect on the relevant RTO or ISO.
    (4) The basis for the conclusion that failing to include such 
parties would have an adverse effect on any relevant RTO or ISO.
    5. Should the Commission require each Petitioner that is regulated 
by FERC to have fully implemented the requirements set forth in FERC 
Order 741 as a condition precedent to the issuance of a final order 
granting the Proposed Exemption to the particular Petitioner? Why or 
why not?
    6. Should ERCOT be required to comply with the requirements set 
forth in FERC Order 741 as a prerequisite to the issuance to ERCOT of a 
final order granting the Proposed Exemption as to ERCOT? Why or why 
not?
    a. The Commission specifically seeks comment upon whether and why 
ERCOT would or would not be able to comply with each of the 
requirements set forth in FERC Order 741. Are any of these requirements 
inapplicable for an RTO/ISO?
    b. Should ERCOT be permitted to adopt alternatives to any of the 
specific requirements set forth in FERC Order 741 (such as the seven 
day settlement period in FERC regulation 35.47(b))? What is the basis 
for the conclusion that the alternative measures would be the 
equivalents of the FERC requirements in terms of protecting the 
financial integrity of the transactions that are within the scope of 
the exemption?
    7. Should the Commission require, as a prerequisite to issuing a 
final order granting the Proposed Exemption to a particular Petitioner, 
that the Commission be provided with a legal opinion or memoranda of 
counsel, applicable to the tariffs and operations of that Petitioner, 
that provides the Commission with assurance that the approach selected 
by the Petitioner to satisfy the obligations contained in FERC 
regulation 35.47(d) will provide the Petitioner with rights of setoff, 
enforceable against any of its market participants under title 11 of 
the United States Code in the event of the bankruptcy of the market 
participant? Why or why not? Are there alternative ways to provide the 
requisite assurance regarding the bankruptcy protections provided by 
the approach to 35.47(d) compliance selected by Petitioners and the 
requisite assurance that the central counterparty structure selected by 
Petitioners will be consistent or contain elements commonly associated 
with central counterparties?
    8. Should the Commission require the execution of an acceptable 
information sharing arrangement between the Commission and PUCT as a 
condition precedent to the issuance to ERCOT of a final order granting 
the request for an exemption?
    9. Should the Proposed Exemption be conditioned upon the 
requirement that the Petitioners cooperate with the Commission in its 
conduct of special calls/further requests for information with respect 
to contracts, agreements or transactions that are, or are related to, 
the contracts, agreements, or transactions that are the subject of the 
Proposed Exemption?
    10. Should Petitioners be required to have the ability to obtain 
market data and other related information from their participants with 
respect to contracts, agreements or transactions in markets

[[Page 52173]]

for, or related to, the contracts, agreements or transactions that are 
the subject of the Proposed Exemption? The Commission specifically 
seeks comment on whether the Petitioners should capable of re-creating 
the Day-Ahead Market and Real-Time prices.
    11. What is the basis for the conclusion that Petitioners do, or do 
not, provide to the public sufficient timely information on price, 
trading volume, and other data with respect to the markets for the 
contracts, agreements and transactions that are the subject of the 
Proposed Exemption? What RTO or ISO tariff provisions, if any, require 
them to do so or preclude them from doing so?
    12. What is the basis for the conclusion that the Proposed 
Exemption will, or will not, have any material adverse effect on the 
Commission's ability to discharge its regulatory duties under the CEA, 
or on any contract market's ability to discharge its self-regulatory 
duties under the CEA?
    13. What are the bases for the conclusions that the Petitioners' 
tariffs, practices, and procedures do, or do not, appropriately address 
the regulatory goals of each of the DCO Core Principles?
    14. What factors support, or detract from, the Commission's 
preliminary conclusion that FTRs, Energy Transactions, Capacity and 
Reserve Transactions are not readily susceptible to manipulation for 
the reasons stated above? Could a market participant use an FTR to 
manipulate the price of electricity established on the Day-Ahead and 
Real-Time markets operated by Petitioners? If so, what is the basis for 
that conclusion? What is the basis for the conclusion that market 
participants can, or cannot, use Energy Transactions, Capacity or 
Reserve Transactions to manipulate electricity prices without detection 
by Independent Market Monitors?
    15. What is the basis for the conclusion that Petitioners have, or 
have not, satisfied applicable market monitoring requirements with 
respect to FTRs, Energy Transactions, Capacity and Reserve 
Transactions? What is the basis for the conclusion that the record-
keeping functions performed by Petitioners are, or are not, appropriate 
to address any concerns raised by the market monitoring process? What 
is the basis for the conclusion that the market monitoring functions 
performed by Petitioners and their MMUs do, or do not, provide adequate 
safeguards to prevent the manipulation of Petitioners' markets?
    16. What is the basis for the conclusion that Petitioners, or their 
participants, should, or should not, be required to satisfy position 
limit requirements with respect to any of the contracts, agreements or 
transactions that are the subject of the Proposed Exemption? 
Specifically, what is the basis for the conclusion that it is, or is 
not, possible for Petitioners, or their participants, to violate 
position limits with FTRs or Virtual Bids? What is the basis for the 
conclusion that the nature of FTRs or Virtual Bids do, or do not, 
inherently limit the ability of market participants to engage in 
manipulative conduct?
    17. What are the bases for the conclusions that Petitioners do, or 
do not, adequately satisfy the SEF requirements for (a) recordkeeping 
and reporting, (b) preventing restraints on trade or imposing any 
material anticompetitive burden, (c) minimizing conflicts of interest, 
(d) providing adequate financial resources, (e) establishing system 
safeguards and (f) designating a CCO? Specifically, do the procedures 
and principles in place allow the Petitioners to meet the requirements 
of SEF core principles 10-15?
    18. What is the basis for the conclusion that the Petitioners' 
eligibility requirements for participants are, or are not, appropriate 
to ensure that market participants can adequately bear the risks 
associated with the Participants markets?
    19. What is the basis for the conclusion that Petitioners do, or do 
not, have adequate rules in place to allow them to deal with emergency 
situations as they arise? What deficiencies, if any, Are there with 
respect to their emergency procedures that would prevent any Petitioner 
from taking necessary action to address sudden market problems?
    20. The Commission invites comment on its consideration of the 
costs and benefits of the Proposed Exemption, including the costs of 
any information requirements imposed therein. The Commission also seeks 
comment on the costs and benefits of this Proposed Exemption, 
including, but not limited to, those costs and benefits specified 
within this proposal. Commenters are also are invited to submit any 
data or other information that they may have quantifying or qualifying 
the costs and benefits of the proposal with their comment letters.

    Issued in Washington, DC on August 21, 2012, by the Commission.
Sauntia S. Warfield,
Assistant Secretary of the Commission.

Notice of Proposed Order and Request for Comment on a Petition From 
Certain Independent System Operators and Regional Transmission 
Organizations To Exempt Specified Transactions Authorized by a Tariff 
or Protocol Approved by the Federal Energy Commission or the Public 
Utility Commission of Texas From Certain Provisions of the Commodity 
Exchange Act Pursuant to the Authority Provided in Section 4(c)(6) of 
the Act--Commission Voting Summary and Statements of Commissioners

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

Appendix 1--Commission Voting Summary

    On this matter, Chairman Gensler and Commissioners Sommers, 
Chilton, O'Malia and Wetjen voted in the affirmative; no 
Commissioner voted in the negative.

Appendix 2--Statement of Chairman Gary Gensler

    I support the proposed relief from the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (Dodd-Frank Act) swaps provisions 
for certain electricity-related transactions entered into on markets 
administered by regional transmission organizations (RTOs) or 
independent system operators (ISOs). The relief responds to a 
petition filed by a group of RTOs and ISOs.
    Congress directed the CFTC, when it is in the public interest, 
to provide relief from the Dodd-Frank Act's swaps market reform 
provisions for certain transactions on markets administered by RTOs 
and ISOs.
    These entities were established for the purpose of providing 
affordable, reliable electricity to consumers within their 
geographic region. They are subject to extensive regulatory 
oversight by the Federal Energy Regulatory Commission (FERC), or in 
one instance, by the Public Utility Commission of Texas (PUCT). In 
addition, these markets administered by RTOs and ISOs are central to 
FERC and PUCT's regulatory missions to oversee wholesale sales and 
transmission of electricity.
    The scope of the proposed relief extends to the petitioners for 
four categories of transactions--financial transmission rights, 
energy transactions, forward capacity transactions, and reserve or 
regulation transactions. Each of these transactions are inextricably 
linked to the physical delivery of electricity.
    I look forward to receiving public comment on the proposed 
relief.

[FR Doc. 2012-20965 Filed 8-27-12; 8:45 am]
BILLING CODE P