Availability of E-Tag Information to Commission Staff, 16133-16138 [2013-05856]
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16133
Rules and Regulations
Federal Register
Vol. 78, No. 50
Thursday, March 14, 2013
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 366
[Docket No. RM11–12–001; Order No. 771–
A]
Availability of E-Tag Information to
Commission Staff
Federal Energy Regulatory
Commission, DOE.
ACTION: Order on rehearing and
clarification.
AGENCY:
In this order on rehearing and
clarification, the Federal Energy
Regulatory Commission (the
Commission) clarifies that: Balancing
Authorities and their Authority Services
will have until 60 days after publication
of this order to implement the
validation requirements of Order No.
771; validation of e-Tags means that the
Sink Balancing Authority, through its
Authority Service, must reject any eTags that do not correctly include the
Commission in the CC field; the
requirement for the Commission to be
included in the CC field on the e-Tags
applies only to e-Tags created on or after
March 15, 2013; the Commission will
deem all e-Tag information made
available to the Commission pursuant to
Order No. 771 as being submitted
pursuant to a request for privileged and
confidential treatment under 18 CFR
388.112; the Commission is to be
afforded access to the Intra-Balancing
Authority e-Tags in the same manner as
interchange e-Tags; and the requirement
on Balancing Authorities to ensure
Commission access to e-Tags pertains to
SUMMARY:
the Sink Balancing Authority and no
other Balancing Authorities that may be
listed on an e-Tag.
FOR FURTHER INFORMATION CONTACT:
Maria Vouras (Technical Information),
Office of Enforcement, Federal Energy
Regulatory Commission, 888 First
Street NE., Washington, DC 20426,
Telephone: (202) 502–8062, Email:
maria.vouras@ferc.gov.
William Sauer (Technical Information),
Office of Energy Policy and
Innovation, Federal Energy Regulatory
Commission, 888 First Street NE.,
Washington, DC 20426, Telephone:
(202) 502–6639, Email:
william.sauer@ferc.gov.
Gary D. Cohen (Legal Information),
Office of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE., Washington, DC
20426, Telephone: (202) 502–8321,
Email: gary.cohen@ferc.gov.
SUPPLEMENTARY INFORMATION:
Order on Rehearing and Clarification
Table of Contents
I. Overview ..........................................................................................................................................................................................................
II. Introduction ....................................................................................................................................................................................................
III. Discussion .....................................................................................................................................................................................................
A. Requests for Extensions of Time ...........................................................................................................................................................
B. Requests for Rehearing and Clarification ..............................................................................................................................................
1. Validation of the Commission on E-Tags .......................................................................................................................................
2. Prospective Effect of Order No. 771 ...............................................................................................................................................
3. Confidentiality of E-Tag Data Provided to Commission ................................................................................................................
4. Internal E-Tags .................................................................................................................................................................................
5. Balancing Authorities ......................................................................................................................................................................
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Before Commissioners: Jon Wellinghoff,
Chairman; Philip D. Moeller, John R.
Norris, Cheryl A. LaFleur, and Tony Clark.
Issued March 8, 2013.
1. On December 20, 2012, the
Commission issued Order No. 771, a
Final Rule that amended the
Commission’s regulations to grant the
Commission access, on a non-public
and ongoing basis, to the complete
electronic tags (e-Tags) used to schedule
the transmission of electric power
interchange transactions in wholesale
markets.1 Order No. 771 requires e-Tag
Authors (through their Agent Service)
and Balancing Authorities (through
their Authority Service), beginning on
March 15, 2013, to take appropriate
steps to ensure Commission access to
1 Availability of E-Tag Information to Commission
Staff, Order No. 771, 77 FR 76367 (Dec. 28, 2012),
FERC Stats & Regs ¶ 31,339 (2012).
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the e-Tags covered by this Final Rule by
designating the Commission as an
addressee on the e-Tags. In response to
this rule, requests for rehearing and/or
clarification were filed by four entities.
The National Rural Electric Cooperative
Association (NRECA) individually filed
a request for rehearing and also filed,
together with Edison Electric Institute
(EEI), a joint request for rehearing and
clarification that included a motion for
an expedited response to its motion for
an extension of the compliance
deadlines prescribed in the rule.
Southern Company Services, Inc.
(Southern) similarly filed a request for
rehearing and clarification that included
a request for expedited consideration of
a request for a time extension. In
addition, Open Access Technology
International, Inc. (OATI) filed a request
for clarification. A motion for leave to
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3
9
9
14
14
22
24
31
34
answer and answer was filed by PJM
Interconnection, L.L.C. (PJM) and
Southwest Power Pool, Inc. (SPP)
(collectively, PJM/SPP). In this order,
the Commission addresses only those
issues that need to be answered on an
expedited basis to allow entities affected
by this rule to understand their
obligations and comply with the
requirement to ensure Commission
access to the e-Tags covered by the Final
Rule in a timely manner. In due course,
the Commission will issue an additional
rehearing order, addressing the
remaining issues raised on rehearing
and clarification. As discussed further
below, the Commission also issued a
notice on February 1, 2013, granting
limited time extensions but requiring
compliance by March 15, 2013 for the
bulk of the requirements under the rule.
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I. Overview
2. In this order, the Commission
clarifies that: (1) Balancing Authorities
and their Authority Services 2 will have
until 60 days after publication of this
order to implement the validation
requirements of Order No. 771; (2)
validation of e-Tags means that the Sink
Balancing Authority, through its
Authority Service, must reject any eTags that do not correctly include the
Commission in the CC field; 3 (3) the
requirement for the Commission to be
included in the CC field on the e-Tags
applies only to e-Tags created on or after
March 15, 2013; (4) the Commission
will deem all e-Tag information made
available to the Commission pursuant to
Order No. 771 as being submitted
pursuant to a request for privileged and
confidential treatment under 18 CFR
388.112; (5) the Commission is to be
afforded access to the Intra-Balancing
Authority e-Tags in the same manner as
interchange e-Tags; and (6) the
requirement on Balancing Authorities to
ensure Commission access to e-Tags
pertains to the Sink Balancing Authority
and not other Balancing Authorities that
may be listed on an e-Tag.
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II. Introduction
3. E-Tags, also known as Requests for
Interchange (RFI), are used to schedule
interchange transactions in wholesale
markets. Generally, e-Tags document
the movement of energy across an
interchange over prescribed physical
paths, for a given duration, and for a
given energy profile(s), and include
information about those entities with
financial responsibilities for the receipt
and delivery of the energy. As stated in
Order No. 771, the Commission
determined that access to complete eTag data 4 will help the Commission in
2 An Authority Service is the ‘‘focal point for all
interactions with an e-Tag and maintains the single
authoritative ‘copy of record’ for each e-Tag
received.’’ See NAESB Electronic Tagging
Functional Specifications, Version 1.8.1.1, section
1.4.1.2, at p. 24. Every Sink Balancing Authority is
responsible for registering an URL of an Authority
Service. The Authority Service forwards all valid
received e-Tag requests to each entity identified in
the transaction as having ‘‘approval’’ or ‘‘viewing’’
rights over the request and collects approvals/
denials. The Authority Service then sends final
disposition of the request to each entity in the
distribution list. See id. Authority Services are
currently provided by a small number of
commercial software vendors.
3 In previous times, the term ‘‘CC’’ referred to
those who would be given a carbon copy; the term
has been carried over into the electronic age. E-Tag
Authors may include a CC list (Carbon Copy List)
on their e-Tags specifying the entities that will be
provided with a copy of the e-Tag without being
given approval rights. See NAESB Electronic
Tagging Functional Specifications, Version 1.8.1.1,
section 1.4.11, at p. 37.
4 Order No. 771 defined ‘‘complete e-Tags’’ for
purposes of this rulemaking proceeding as: (1) e-
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its efforts to detect market manipulation
and anti-competitive behavior, monitor
the efficiency of the markets, and better
inform Commission policies and
decision-making.5
4. As the Commission explained in
Order No. 771, the Commission needs eTag data covering all transactions
involving interconnected entities listed
on the e-Tag because the information is
necessary to understand the use of the
interconnected electricity grid, and
particularly those transactions occurring
at interchanges.6 The Commission also
found in Order No. 771 that regular
access to e-Tags for power flows across
interchanges will make it possible for
the Commission to identify or analyze
various behaviors by market
participants to determine if they are part
of a potentially manipulative
scheme(s).7 As demonstrated by recent
investigations by the Commission’s
Office of Enforcement, for example, eTag information can enable the
Commission to investigate whether
entities may be engaging in
manipulative schemes involving the
circular scheduling of imports and
exports into a market to benefit other
positions held by these entities.8 The
Commission also noted that e-Tag
access will help the Commission to
understand, identify, and address
instances where interchange pricing
methodologies or scheduling rules
result in inefficiencies and increased
costs to market participants
collectively.9 The Commission also
noted that access to e-Tag information
will allow the Commission to determine
whether the requirements of the
mandatory business practice standards
related to e-Tags have been met.10
5. In Order No. 771, the Commission
required e-Tag Authors, through their
Agent Service, and Balancing
Authorities, through their Authority
Service, to take appropriate steps to
Tags for interchange transactions scheduled to flow
into, out of, or within the United States’ portion of
the Eastern or Western Interconnection, or into the
Electric Reliability Council of Texas and from the
United States’ portion of the Eastern or Western
Interconnection, or from the Electric Reliability
Council of Texas into the United States’ portion of
the Eastern or Western Interconnection; and (2)
information on every aspect of each such e-Tag,
including all applicable e-Tag IDs, transaction
types, market segments, physical segments, profile
sets, transmission reservations, and energy
schedules. See Order No. 771, FERC Stats & Regs
¶ 31,339 at n.2.
5 Order No. 771, FERC Stats & Regs ¶ 31,339 at
P 27.
6 Id.
7 Id. P 28.
8 Id. P 28, n.72 (citing Gila River Power, LLC, 141
FERC ¶ 61,136 (2012)).
9 Id. P 29.
10 Id.
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ensure that the Commission is included
as an addressee on all e-Tags for
interchange transactions scheduled to
flow into, out of, or within the United
States’ portion of the Eastern or Western
Interconnection, or into Electric
Reliability Council of Texas (ERCOT)
and from the United States’ portion of
the Eastern or Western Interconnection;
or from ERCOT into the United States’
portion of the Eastern or Western
Interconnection.11 The Commission
required that the e-Tag Authors include
the Commission on the CC list of
entities with view-only rights to the eTags described above. Further, the
Commission required that the Balancing
Authorities (located within the United
States) validate the inclusion of the
Commission on the CC list of the e-Tags
before those e-Tags are electronically
delivered to an address specified by the
Commission.12
6. Order No. 771 also required that
Regional Transmission Organizations
(RTO), Independent System Operators
(ISO) and their Market Monitoring Units
(MMU) shall be afforded access to
complete e-Tags, upon request to e-Tag
Authors and Authority Services, subject
to their entering into appropriate
confidentiality agreements.
7. As noted above, requests for
rehearing and/or clarification of Order
No. 771 were filed by four entities.13 In
addition, PJM/SPP filed a motion for
leave to answer and answer in response
to the requests for rehearing and
clarification. Rule 713(d) of the
Commission’s Rules of Practice and
Procedure prohibits an answer to a
request for rehearing.14 Accordingly, we
will reject the answer.
8. The main concern raised by EEI/
NRECA in its joint request for rehearing
and clarification pertains to the
requirement that Sink Balancing
Authorities and their Authority Services
must validate that the Commission is a
CC recipient of the e-Tags.15 NRECA’s
individually filed rehearing request
questions the Commission’s legal
authority to require access to e-Tag data.
Southern filed a request for rehearing
and clarification raising a number of
issues, including: the responsibilities of
Balancing Authorities with respect to eTag data; maintaining the
confidentiality of e-Tag data; the
applicability of the Final Rule to new eTags; and what e-Tag data can be
11 Id.
P 1; see also 18 CFR 366.2(d).
P 41.
13 See supra P 1.
14 18 CFR 713(d) (2012).
15 EEI/NRECA at 2.
12 Id.
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requested by RTO/ISO MMUs. OATI 16
filed a request for clarification asking
three questions: (1) Whether the
requirements in the Final Rule pertain
only to Sink Balancing Authorities; (2)
what e-Tag data can be requested by
RTOs, ISOs, and MMUs; and (3) what
confidentiality restrictions should apply
to such requests. As stated above, in this
order, the Commission will address only
those issues that require an expedited
response from the Commission to allow
entities affected by this rule to
understand their obligation to ensure
Commission access to e-Tag data and
comply with the rule in a timely
manner. The Commission will issue an
additional rehearing order in due course
to address remaining issues, including
its legal authority to access e-Tags.
III. Discussion
A. Requests for Extensions of Time
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1. Comments
9. NRECA requests that the
Commission issue an interim order on
rehearing extending Order No. 771’s
compliance deadline of March 15, 2013
until 60 days after the Commission acts
on the merits of NRECA’s request for
rehearing. EEI/NRECA also filed a
motion for expedited extension of the
March 15, 2013 compliance deadline,
asking that the Commission grant the
motion by February 15, 2013.17
Specifically, EEI/NRECA ask the
Commission to extend the deadline for
including the Commission in the CC
field of the requisite e-Tags to 60 days
after the Commission responds to the
EEI/NRECA request for rehearing and
clarification and, if the Commission
retains the validation requirement, the
Commission should extend the deadline
until 60 days after the North American
Energy Standards Board’s (NAESB) eTag protocols are modified to
implement the requirement.18 Southern
also filed a motion for extension of time,
asking that the Commission extend the
effective date to 60 days after NAESB
implements the revisions to its
protocols to automate the system
required to implement the Final Rule.
2. Commission Determination
10. The Commission considers it
important to begin obtaining the data on
e-Tags as soon as possible so that we
can begin to analyze the data and
16 OATI
states that it provides software solutions
in the North American energy industry, including
e-Tag services (through OATI webTag). OATI states
it also provides Agent Services and Authority
Services to e-Tag Authors and Balancing
Authorities, respectively. See OATI at 1.
17 EEI/NRECA at 3.
18 Id. at 5.
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enhance our ability to carry out our
regulatory missions of detecting market
manipulation and inefficient market
rules and taking appropriate action,
where needed, to address any such
problems. Accordingly, the Commission
is averse to allowing any unnecessary
delays before the requirements of Order
No. 771 become effective.
11. Nevertheless, when the
Commission reviewed the requests for
rehearing and for clarification, we
determined that some of the rehearing
requests asked important questions that
needed explanation before action could
be taken to comply with the rule. For
this reason, the Commission issued a
notice, on February 1, 2013, extending
the time until Balancing Authorities are
to be required to validate the inclusion
of the Commission on e-Tags until 30
days after the issuance of an order, this
order, which clarifies exactly what is
entailed by such validation. To ensure
that Balancing Authorities have
sufficient time to implement this
requirement, this order extends the time
for Balancing Authorities to comply
with the validation requirement until 60
days from the date of publication of this
order in the Federal Register.
12. Given the importance of the
objectives served by issuance of Order
No. 771, our notice of a limited time
extension denied all other requested
time extensions and affirmed the time
deadlines prescribed in the Final Rule
in all other respects. Therefore, given
our clarification in this order of the
obligations of Sink Balancing
Authorities regarding the validation of
Commission access to e-Tags, Balancing
Authorities will have until 60 days after
publication of this order to implement
the validation requirement, as clarified
below.
13. We also note that requests for
rehearing and/or clarification do not act
as a stay of the compliance obligations
prescribed in final orders.19 As stated in
the February 1, 2013 notice, full
compliance with all other obligations
under Order No. 771 is required by
March 15, 2013.
B. Requests for Rehearing and
Clarification
1. Validation of the Commission on ETags
a. Comments
14. EEI/NRECA and Southern
encourage the Commission to eliminate
the validation requirement if validation
means that the Sink Balancing
Authority or its Authority Service
should reject an e-Tag that does not
19 See
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16135
include the Commission in the CC
field.20 EEI/NRECA and Southern states
that if validation means rejecting e-Tags
that do not include the Commission,
then the Commission should direct the
industry to adjust the NAESB protocols
to enable an automated process for
validation and careful implementation
of the requirement.21
15. According to Southern, rejecting
e-Tags that do not CC the Commission
could result in significant commercial
and reliability disruptions.22 EEI/
NRECA also assert that rejecting e-Tags
could disrupt necessary power
deliveries and implementing the change
via changes to the NAESB e-Tag
protocols would avoid or minimize
negative consequences.23 EEI/NRECA
add that if a Balancing Authority or
Authority Service reject an e-Tag and,
thus, the power delivery it covers, the
e-Tag Author’s only option may be to
recreate the e-Tag if time and
circumstances permit.24
16. EEI/NRECA add that Sink
Balancing Authorities and their
Authority Services may mistakenly
reject an e-Tag and associated delivery
in error, when in fact the particular eTag is not required to be CC’d to the
Commission, such as for an internal or
international transaction.25 EEI/NRECA
state that developing and implementing
such a change to NAESB protocols
would take more time than the March
15, 2013 implementation deadline
allows, possibly a year or more,
especially if NAESB addresses e-Tag
issues other than validation.26 Southern
states that, at most, the Commission
should require the Authority Services to
add the Commission to the CC field,
when appropriate, but states that even
this effort will require a reasonable
amount of time to provide for software
changes and implementation.27
b. Commission Determination
17. The Commission has been asked
to clarify whether the Commission’s
directive in Order No. 771 (that
Balancing Authorities, through their
Authority Services, validate that the
Commission be given access to e-Tags)
requires rejection of e-Tags that fail to
include the Commission on the CC list
as required, or merely requires
Balancing Authorities to notify the
Commission that the e-Tag Author has
failed to include the Commission on an
20 EEI/NRECA
at 4; Southern at 5–6.
at 2; Southern at 6.
22 Southern at 6.
23 EEI/NRECA at 2, 4.
24 Id. at 7.
25 Id.
26 Id.
27 Southern at 6.
21 EEI/NRECA
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e-Tag. We also have been asked to
abandon or delay this requirement, if
validation means that tags that fail to
include the Commission on the CC list
are to be rejected.
18. Our requirement in Order No. 771
for validation of e-Tags by Balancing
Authorities, through their Authority
Services, means that Balancing
Authorities are to reject e-Tags that fail
to include the Commission on the CC
list and not merely notify the
Commission that this requirement has
not been met; the Commission’s
objective is to gain access to the e-Tags
covered by the Final Rule. Furthermore,
we reject the suggestion that we
abandon this requirement as the
Commission is interested in actually
obtaining access to the information and
is not merely interested in compiling a
list of those that fail to provide the
required access to the information.
Without a validation process in place,
the Commission would need to employ
additional, less efficient checks to
ensure that the Commission is obtaining
consistent access to all relevant eTags.28
19. We also reject the suggestions by
EEI/NRECA and Southern that we
should delay implementation of the
validation requirement until such time
as the industry, through NAESB, can
develop a formalized automated
process. While we have no objection to
the industry formalizing the manner in
which validation will be performed by
asking NAESB to develop a standard
covering this, we are unwilling to allow
such a process to delay Commission
access to this important information
and, accordingly, decline to defer
compliance until the development of a
formal NAESB business practice
standard on this topic.29
20. Additionally, as discussed above,
the Commission has already provided
Balancing Authorities (and their
Authority Services) with an extension to
accommodate their devising a system to
comply with the requirement that they
must validate Commission access to eTags until 60 days after the publication
of this order. By extending the
validation requirement for Balancing
Authorities until 60 days after the
publication of this order, rather than
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28 Neither
the Final Rule nor this order preclude
Sink Balancing Authorities and their Authority
Services from conferring and agreeing on the best
way to implement the validation requirement
within the time limits provided by this order.
29 We note, however, that in its comments filed
on March 26, 2012, in response to the Notice of
Proposed Rulemaking in this proceeding, NAESB
stated that there may be ‘‘fairly simple technical
approaches’’ to meet the Commission’s request to
receive all e-Tags used to schedule the transmission
of power.
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March 15, 2013 (the implementation
date for aspects of Order No. 771), we
are providing e-Tag Authors and
Balancing Authorities a testing period
before all requirements of Order No. 771
take effect. During this testing period, eTag Authors will be able to comply with
the Final Rule without concern over
whether their e-Tags will be rejected.
Also during this period, the Balancing
Authorities (through their Authority
Service) can assess e-Tags submitted by
e-Tag Authors after-the-fact and alert eTag Authors to practices that would
result in rejection once the validation
mechanisms are in place. Accordingly,
we believe this staggered approach will
allow for the development of an
automated process and limit any
operational or reliability issues
associated with validation requirements
by giving e-Tag Authors and Balancing
Authorities time to familiarize
themselves with the process of
providing the Commission with access
to e-Tags, prior to all of the
requirements of Order No. 771 taking
effect.
21. In its comments, OATI states that
it plans to offer additional automated
functionality to Balancing Authorities to
further enable them to satisfy their
obligations under the Final Rule.30
OATI further notes that scoping,
development, testing, training and
deployment of automated functionality
typically requires at least four weeks,
and sometimes longer, depending on the
particular service.31 Staff’s research
indicates that the vast majority of
Balancing Authorities (i.e., 135 out of
148 total Balancing Authorities
registered in the OATI webRegistry) rely
on OATI to provide their Authority
Service; nine Balancing Authorities rely
on another e-Tag service provider; three
do not have a registered Authority
Service; and one appears to provide its
own Authority Service.32 Given the
extension of time granted with regard to
the validation requirement, we
anticipate that Balancing Authorities
and their Authority Services will be able
to validate the Commission’s inclusion
on e-Tags once this requirement takes
effect.
2. Prospective Effect of Order No. 771
a. Comments
22. EEI/NRECA and Southern seek
clarification that the requirement to CC
the Commission on e-Tags applies only
to e-Tags created starting on or after the
Order No. 771 compliance date, not
ones created prior to the compliance
date even if covering deliveries
occurring after that date.33 EEI/NRECA
and Southern note that, under the
current NAESB protocols, an e-Tag
cannot be modified after it has been
created. Therefore, EEI/NRECA argue
that modification of e-Tags created prior
to the compliance date for delivery after
the compliance date would entail
terminating or recreating the e-Tags.34
Southern argues that, if all e-Tags
already generated before the effective
date of the Final Rule must be stopped
and regenerated when the new
requirements become effective, the
result will be massive disruption of
physical power transfers.35
b. Commission Determination
23. We clarify that the requirement for
the Commission to be included in the
CC field on the e-Tags applies only to
e-Tags created on or after the
compliance date of Order No. 771 (i.e.,
March 15, 2013). Accordingly, preexisting e-Tags do not need to be
stopped, regenerated, or otherwise
modified.
3. Confidentiality of E-Tag Data
Provided to Commission
a. Comments
24. EEI/NRECA encourage the
Commission to ensure that its recently
revised regulations for privileged and
confidential information at 18 CFR Part
388 will not inadvertently create any
problems for protecting the
confidentiality of e-Tag data.36 EEI/
NRECA argue that, as amended, 18 CFR
388.112(b)(1) generally requires parties
filing confidential information to
identify the filing as containing
confidential information with certain
markings on each page and justification
for non-release and other requirements
that are not workable in the e-Tag
context.37
25. Similarly, Southern asks the
Commission to clarify that Balancing
Authorities are not obligated to put a
‘‘confidentiality stamp’’ on e-Tags, as
required for documents to prevent them
from disclosure.38 EEI/NRECA and
Southern ask the Commission to specify
that it will handle all e-Tag information
as confidential without the need to
comply with the requirements of section
388.112 of the Commission’s regulations
and that the Commission will not
33 EEI/NRECA
30 OATI
at 2.
31 Id. at 2.
32 These figures are based on staff analysis of the
OATI webRegistry, or NAESB Electric Industry
Registry, published on February 22, 2013.
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at 9; Southern Companies at 3, 7.
at 9.
35 Southern at 7.
36 EEI/NRECA at 5.
37 Id. at 10.
38 Id. at 3, 8.
34 EEI/NRECA
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release the information to third parties
in response to a FOIA request without
first notifying the e-Tag Author and
giving the e-Tag Author adequate time
to respond to the request by justifying
non-disclosure.39 EEI/NRECA add that
any information the author identifies as
confidential is protected by a
confidentiality agreement if it is
released in response to a FOIA request.
26. Southern asks the Commission to
clarify that, once e-Tag information is
provided to the Commission, it meets
the requirements of exemption 4 under
FOIA, as it is information that would be
otherwise privileged or confidential.40
In addition, Southern states that
Balancing Authorities should not be
liable for any disclosure of confidential
e-Tag information, including
inadvertent publication of e-Tag
information by a recipient of e-Tag data
under Order No. 771 and publication of
e-Tag data subject to FOIA.41
b. Commission Determination
27. In light of the concerns raised by
EEI/NRECA with respect to claims of
privileged or confidential information,
the Commission will handle e-Tag
information as privileged or confidential
under section 388.112 of the
Commission’s regulations without the
need for e-Tag Authors and Balancing
Authorities to include certain markings
required under section 388.112(b)(1) of
the Commission’s regulations.42 In other
words, the Commission will deem eTags made available to the Commission
under Order No. 771 as universally
being provided subject to a request for
confidential treatment and e-Tag
Authors do not need to separately make
a request for confidential treatment in
each instance for this to apply. This
does not, however, foreclose the rights
of persons to make a request for
disclosure of this information under the
Freedom of Information Act and the
provisions of 18 CFR 388.108.
39 EEI/NRECA
40 Southern
41 Id.
at 10; Southern at 3, 9.
at 3, 8.
at 9.
wreier-aviles on DSK5TPTVN1PROD with RULES
42 Section
388.112(b)(1) of the Commission’s
regulations, 18 CFR 388.112(b)(1), requires, among
other matters, certain markings to be placed on
‘‘documents’’ that are filed with the Commission.
Specifically, section 388.112(b)(1) provides: ‘‘A
person requesting that a document filed with the
Commission be treated as privileged or CEII must
designate the document as privileged or CEII in
making an electronic filing or clearly indicate a
request for such treatment on a paper filing. The
header of the first page of the cover sheet or
transmittal letter and of the pages or portions of the
document containing material for which privileged
treatment is claimed should be clearly marked in
bold, capital lettering, indicating that it contains
privileged, confidential and/or Critical Energy
Infrastructure Information, as appropriate, and
market b DO NOT RELEASE. b’’
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14:57 Mar 13, 2013
Jkt 229001
28. We decline to specify, as
requested by Southern, that e-Tag
information provided to the
Commission meets the requirements of
exemption 4 of FOIA because it is
information that would be otherwise
privileged or confidential. Order No.
771 acknowledged that some of the
information contained in the e-Tags is
likely to be commercially sensitive and
that disclosure of such data may result
in competitive harm to market
participants and the market as a whole
without reasonable confidentiality
restrictions.43 To the extent a person
files a request to obtain e-Tag data from
the Commission under the Freedom of
Information Act (FOIA), we expect that
any commercially-sensitive e-Tag data
would be protected from disclosure if it
satisfies the requirements of FOIA’s
exemption 4, which protects trade
secrets and commercial or financial
information that is privileged or
confidential.44 Nonetheless, such
requests must be evaluated on a case-bycase basis and we cannot peremptorily
foreclose such requests, as requested by
Southern.
29. In addition, we find that,
consistent with the procedures set forth
in section 388.112(d) of the
Commission’s regulations, the
Commission will not release e-Tag
information to third parties in response
to a FOIA request without first notifying
the e-Tag Author and any relevant Sink
Balancing Authority and giving the eTag Author and any Sink Balancing
Authority an opportunity (at least five
calendar days) in which to comment in
writing on the request. If the e-Tag
Author objects to the release of e-Tag
information, and if the Commission or
an appropriate Commission official
determines that such information
should be released, notice will be given
to the e-Tag Author no less than five
calendar days before disclosure,
pursuant to section 388.112(e) of the
Commission’s regulations.
30. As to Southern’s request that we
determine that Balancing Authorities
will not be held liable for inadvertent
disclosure of confidential e-Tag
information, we will address this
request in our further rehearing order.
a. Comments
31. EEI/NRECA ask the Commission
to clarify that it is not seeking e-Tags
that are used within a Balancing
Authority for internal purposes, such as
where there is only one ‘‘party’’ to an e43 Order No. 771, FERC Stats & Regs ¶ 31,339 at
P 58.
44 Id.
PO 00000
Frm 00005
Fmt 4700
Tag.45 EEI/NRECA state that such e-Tags
are often used by companies and
cooperatives to manage their internal
systems within their service
territories.46
b. Commission Determination
32. As noted above, e-Tags are used to
schedule interchange transactions in
wholesale markets, which are defined as
‘‘[a]n agreement to transfer energy from
a seller to a buyer that crosses one or
more Balancing Authority Area
boundaries.’’ 47 However, in practice, as
noted by EEI/NRECA, e-Tags can also be
used to schedule internal, or IntraBalancing Authority, transactions.
Business practice standards related to
Intra-Balancing Authority e-Tags are the
same as the standards that apply to eTags that cross Balancing Authority
Area boundaries.48 As such, we find
that treating Intra-Balancing Authority
e-Tags in the same manner as
interchange e-Tags would be consistent
with, and least disruptive of, established
industry practice and fall within the
categories of e-Tags that we required to
be made available to the Commission in
Order No. 771. Therefore, we clarify that
e-Tag Authors, through their Agent
Service, must include the Commission
on the CC list of entities with view-only
rights for all e-Tags covered by the Final
Rule, which include intra-Balancing
Authority e-Tags of the type described
by EEI/NRECA.
33. Additionally, requiring that all eTags, including Intra-Balancing
Authority e-Tags, include the
Commission on the CC list simplifies
compliance with the requirements of
Order No. 771 for e-Tag Authors and
Sink Balancing Authorities.
Specifically, if the Commission created
an exception whereby a limited number
of Intra-Balancing Authority e-Tags do
not include the Commission on the CC
list, then Balancing Authorities would
need to take additional steps to ensure
that their validation procedures did not
incorrectly reject these e-Tags. Simply
put, by not allowing this exception for
Intra-Balancing Authority e-Tags,
Balancing Authorities with validation
responsibilities would simply check
45 EEI/NRECA
4. Internal E-Tags
Sfmt 4700
16137
at 8.
at 8.
47 See Order No. 771, FERC Stats & Regs ¶ 31,339
at P 3 n.8 (citing NERC’s Glossary of Terms Used
in Reliability Standards (updated November 15,
2012), available at https://www.nerc.com/files/
Glossary_of_Terms.pdf).
48 In particular, the NAESB Wholesale Electric
Quadrant (WEQ) Business Practice Standards
(Coordinate Interchange) requirement 004–1.1
provides that ‘‘[t]o the extent that intra BA
transactions are submitted as a RFI, those
transactions will be subject to all provisions of this
Business Practice Standard WEQ–004.’’
46 Id.
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Federal Register / Vol. 78, No. 50 / Thursday, March 14, 2013 / Rules and Regulations
only the CC list of an e-Tag to see if the
Commission is included. If an IntraBalancing Authority exception were
created, Balancing Authorities with
validation responsibilities would first
need to check the market and physical
segments of an e-Tag to see if they met
additional criteria, and then check to
see if the Commission is included on
the CC list. Likewise, e-Tag Authors
would have to develop additional
procedures to ensure an Intra-Balancing
Authority exception was appropriately
implemented.
5. Balancing Authorities
a. Comments
34. OATI states that Order No. 771
creates certain obligations on
‘‘Balancing Authorities’’ and notes that
multiple Balancing Authorities can be
listed on a single e-Tag. OATI seeks
clarification that the Final Rule refers to
the Balancing Authority serving as the
Sink Balancing Authority and providing
e-Tag Authority Services for the
particular e-Tag transaction, rather than
to other Balancing Authorities that may
be listed on the e-Tag.49
b. Commission Determination
35. Order No. 771 imposes certain
requirements on Balancing Authorities
located within the United States with
respect to ensuring Commission access
to e-Tags.50 In response to OATI’s
question, we clarify that the
requirements on Balancing Authorities
to ensure Commission access to e-Tags
relate only to the Sink Balancing
Authority on an e-Tag and not to other
Balancing Authorities that may be
included on an e-Tag.51
The Commission orders:
The Commission hereby grants
rehearing in part, and denies rehearing
in part, as discussed in the body of the
order.
49 OATI
at 6.
Order No. 771, FERC Stats & Regs ¶ 31,339
at P 39; 18 CFR 366.2(d).
51 See, e.g., NAESB Wholesale Electric Quadrant
(WEQ) Business Practice Standards (Coordinate
Interchange) requirement 004–1 (‘‘All requests to
implement bilateral Interchange * * * between a
Source BA and Sink BA, where one or both BAs are
located in either the Eastern or Western
Interconnection, shall be accomplished by the
submission of a completed and accurate RFI) to the
Sink BA’s registered e-Tag Authority Service’’) and
requirement 004–2 (‘‘Until other means are adopted
by NAESB, the primary method of submitting the
RFI shall be an e-Tag communicated to and
managed by the Sink BA’s registered e-Tag
authority service using protocols compliant with
the Version 1.8.1 Electronic Tagging Functional
Specification.’’ (Emphasis added.)). See NAESB
Wholesale Electric Quadrant (WEQ) Business
Practice Standards (Version 003), published July 31,
2012.
wreier-aviles on DSK5TPTVN1PROD with RULES
50 See
VerDate Mar<15>2010
14:57 Mar 13, 2013
Jkt 229001
By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2013–05856 Filed 3–13–13; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF JUSTICE
28 CFR Part 58
[Docket No EOUST 102]
RIN 1105–AB17
Application Procedures and Criteria for
Approval of Nonprofit Budget and
Credit Counseling Agencies by United
States Trustees
Executive Office for United
States Trustees (‘‘EOUST’’), Justice.
ACTION: Final rule.
AGENCY:
This final rule (‘‘rule’’) sets
forth procedures and criteria United
States Trustees shall use when
determining whether applicants seeking
to become and remain approved
nonprofit budget and credit counseling
agencies (‘‘credit counseling agencies’’
or ‘‘agencies’’) satisfy all prerequisites of
the United States Code, as implemented
under this rule. Under the current law,
an individual may not be a debtor under
title 11 of the United States Code, unless
during the 180-day period preceding the
date of filing a bankruptcy petition, the
individual receives adequate counseling
from a credit counseling agency that is
approved by the United States Trustee.
The current law enumerates mandatory
prerequisites and minimum standards
applicants seeking to become approved
credit counseling agencies must meet.
Under this rule, United States Trustees
will approve applicants for inclusion on
publicly available agency lists in one or
more federal judicial districts if an
applicant establishes it meets all the
requirements of the United States Code,
as implemented under this rule. After
obtaining such approval, a credit
counseling agency shall be authorized to
provide credit counseling in a federal
judicial district during the time the
agency remains approved.
EOUST intends to add to its
regulations governing credit counseling
agencies, two new provisions not
previously included in the proposed
rule on this subject. A new section
58.17(c)(11) will require agencies to
notify the United States Trustee of
certain actions pursuant to 11 U.S.C.
111(g)(2) or other consumer protection
statutes, such as an entry of judgment or
mediation award, or the agency’s entry
into a settlement order, consent decree,
or assurance of voluntary compliance.
SUMMARY:
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
The second provision will amend
section 58.20(j) to require an agency to
assist an individual with limited
English proficiency by expeditiously
directing the individual to an agency
that can provide counseling in the
language of the individual’s choice.
Because these provisions were not
discussed in the proposed rule
published on February 1, 2008, EOUST
will publish another Notice of Proposed
Rulemaking requesting public comment
with respect to these two provisions.
DATES: Effective Date: This rule is
effective April 15, 2013.
ADDRESSES: EOUST, 441 G Street NW.,
Suite 6150, Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT:
Doreen Solomon, Assistant Director for
Oversight on (202) 307–2829 (not a tollfree number), Wendy Tien, Deputy
Assistant Director for Oversight on (202)
307–3698 (not a toll-free number), or
Larry Wahlquist, Office of the General
Counsel on (202) 307–1399 (not a tollfree number).
SUPPLEMENTARY INFORMATION: On July 5,
2006, EOUST published an interim final
rule entitled Application Procedures
and Criteria for Approval of Nonprofit
Budget and Credit Counseling Agencies
and Approval of Providers of a Personal
Financial Management Instructional
Course by United States Trustees
(‘‘Interim Final Rule’’). 71 FR 38,076
(July 5, 2006). Due to the necessity of
quickly establishing a regulation to
govern the credit counseling application
process, EOUST promulgated the
Interim Final Rule rather than a notice
of proposed rulemaking (‘‘proposed
rule’’). On February 1, 2008, at 73 FR
6,062, EOUST published a proposed
rule on this topic in an effort to
maximize public input, rather than
publishing a final rule after publication
of the Interim Final Rule. Before the
comment period closed on April 1,
2008, EOUST received forty seven
comments. The comments received and
EOUST’s responses are discussed
below. This rule finalizes the proposed
rule with changes that, in some cases,
reduce the burden on credit counseling
agencies while maintaining adequate
protections for consumers.
This rule implements the credit
counseling sections of the Bankruptcy
Abuse Prevention and Consumer
Protection Act of 2005 (‘‘BAPCPA’’),
Public Law 109–8, 119 Stat. 23, 37, 38
(April 20, 2005), which are codified at
11 U.S.C. 109(h) and 111. Effective
October 17, 2005, an individual may not
be a debtor under title 11 of the United
States Code unless during the 180-day
period preceding the date of filing a
bankruptcy petition, the individual
E:\FR\FM\14MRR1.SGM
14MRR1
Agencies
[Federal Register Volume 78, Number 50 (Thursday, March 14, 2013)]
[Rules and Regulations]
[Pages 16133-16138]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-05856]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 78, No. 50 / Thursday, March 14, 2013 / Rules
and Regulations
[[Page 16133]]
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 366
[Docket No. RM11-12-001; Order No. 771-A]
Availability of E-Tag Information to Commission Staff
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Order on rehearing and clarification.
-----------------------------------------------------------------------
SUMMARY: In this order on rehearing and clarification, the Federal
Energy Regulatory Commission (the Commission) clarifies that: Balancing
Authorities and their Authority Services will have until 60 days after
publication of this order to implement the validation requirements of
Order No. 771; validation of e-Tags means that the Sink Balancing
Authority, through its Authority Service, must reject any e-Tags that
do not correctly include the Commission in the CC field; the
requirement for the Commission to be included in the CC field on the e-
Tags applies only to e-Tags created on or after March 15, 2013; the
Commission will deem all e-Tag information made available to the
Commission pursuant to Order No. 771 as being submitted pursuant to a
request for privileged and confidential treatment under 18 CFR 388.112;
the Commission is to be afforded access to the Intra-Balancing
Authority e-Tags in the same manner as interchange e-Tags; and the
requirement on Balancing Authorities to ensure Commission access to e-
Tags pertains to the Sink Balancing Authority and no other Balancing
Authorities that may be listed on an e-Tag.
FOR FURTHER INFORMATION CONTACT:
Maria Vouras (Technical Information), Office of Enforcement, Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426, Telephone: (202) 502-8062, Email: maria.vouras@ferc.gov.
William Sauer (Technical Information), Office of Energy Policy and
Innovation, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426, Telephone: (202) 502-6639, Email:
william.sauer@ferc.gov.
Gary D. Cohen (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426, Telephone: (202) 502-8321, Email: gary.cohen@ferc.gov.
SUPPLEMENTARY INFORMATION:
Order on Rehearing and Clarification
Table of Contents
I. Overview...................................................... 2
II. Introduction................................................. 3
III. Discussion.................................................. 9
A. Requests for Extensions of Time........................... 9
B. Requests for Rehearing and Clarification.................. 14
1. Validation of the Commission on E-Tags................ 14
2. Prospective Effect of Order No. 771................... 22
3. Confidentiality of E-Tag Data Provided to Commission.. 24
4. Internal E-Tags....................................... 31
5. Balancing Authorities................................. 34
Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller,
John R. Norris, Cheryl A. LaFleur, and Tony Clark.
Issued March 8, 2013.
1. On December 20, 2012, the Commission issued Order No. 771, a
Final Rule that amended the Commission's regulations to grant the
Commission access, on a non-public and ongoing basis, to the complete
electronic tags (e-Tags) used to schedule the transmission of electric
power interchange transactions in wholesale markets.\1\ Order No. 771
requires e-Tag Authors (through their Agent Service) and Balancing
Authorities (through their Authority Service), beginning on March 15,
2013, to take appropriate steps to ensure Commission access to the e-
Tags covered by this Final Rule by designating the Commission as an
addressee on the e-Tags. In response to this rule, requests for
rehearing and/or clarification were filed by four entities. The
National Rural Electric Cooperative Association (NRECA) individually
filed a request for rehearing and also filed, together with Edison
Electric Institute (EEI), a joint request for rehearing and
clarification that included a motion for an expedited response to its
motion for an extension of the compliance deadlines prescribed in the
rule. Southern Company Services, Inc. (Southern) similarly filed a
request for rehearing and clarification that included a request for
expedited consideration of a request for a time extension. In addition,
Open Access Technology International, Inc. (OATI) filed a request for
clarification. A motion for leave to answer and answer was filed by PJM
Interconnection, L.L.C. (PJM) and Southwest Power Pool, Inc. (SPP)
(collectively, PJM/SPP). In this order, the Commission addresses only
those issues that need to be answered on an expedited basis to allow
entities affected by this rule to understand their obligations and
comply with the requirement to ensure Commission access to the e-Tags
covered by the Final Rule in a timely manner. In due course, the
Commission will issue an additional rehearing order, addressing the
remaining issues raised on rehearing and clarification. As discussed
further below, the Commission also issued a notice on February 1, 2013,
granting limited time extensions but requiring compliance by March 15,
2013 for the bulk of the requirements under the rule.
---------------------------------------------------------------------------
\1\ Availability of E-Tag Information to Commission Staff, Order
No. 771, 77 FR 76367 (Dec. 28, 2012), FERC Stats & Regs ] 31,339
(2012).
---------------------------------------------------------------------------
[[Page 16134]]
I. Overview
2. In this order, the Commission clarifies that: (1) Balancing
Authorities and their Authority Services \2\ will have until 60 days
after publication of this order to implement the validation
requirements of Order No. 771; (2) validation of e-Tags means that the
Sink Balancing Authority, through its Authority Service, must reject
any e-Tags that do not correctly include the Commission in the CC
field; \3\ (3) the requirement for the Commission to be included in the
CC field on the e-Tags applies only to e-Tags created on or after March
15, 2013; (4) the Commission will deem all e-Tag information made
available to the Commission pursuant to Order No. 771 as being
submitted pursuant to a request for privileged and confidential
treatment under 18 CFR 388.112; (5) the Commission is to be afforded
access to the Intra-Balancing Authority e-Tags in the same manner as
interchange e-Tags; and (6) the requirement on Balancing Authorities to
ensure Commission access to e-Tags pertains to the Sink Balancing
Authority and not other Balancing Authorities that may be listed on an
e-Tag.
---------------------------------------------------------------------------
\2\ An Authority Service is the ``focal point for all
interactions with an e-Tag and maintains the single authoritative
`copy of record' for each e-Tag received.'' See NAESB Electronic
Tagging Functional Specifications, Version 1.8.1.1, section 1.4.1.2,
at p. 24. Every Sink Balancing Authority is responsible for
registering an URL of an Authority Service. The Authority Service
forwards all valid received e-Tag requests to each entity identified
in the transaction as having ``approval'' or ``viewing'' rights over
the request and collects approvals/denials. The Authority Service
then sends final disposition of the request to each entity in the
distribution list. See id. Authority Services are currently provided
by a small number of commercial software vendors.
\3\ In previous times, the term ``CC'' referred to those who
would be given a carbon copy; the term has been carried over into
the electronic age. E-Tag Authors may include a CC list (Carbon Copy
List) on their e-Tags specifying the entities that will be provided
with a copy of the e-Tag without being given approval rights. See
NAESB Electronic Tagging Functional Specifications, Version 1.8.1.1,
section 1.4.11, at p. 37.
---------------------------------------------------------------------------
II. Introduction
3. E-Tags, also known as Requests for Interchange (RFI), are used
to schedule interchange transactions in wholesale markets. Generally,
e-Tags document the movement of energy across an interchange over
prescribed physical paths, for a given duration, and for a given energy
profile(s), and include information about those entities with financial
responsibilities for the receipt and delivery of the energy. As stated
in Order No. 771, the Commission determined that access to complete e-
Tag data \4\ will help the Commission in its efforts to detect market
manipulation and anti-competitive behavior, monitor the efficiency of
the markets, and better inform Commission policies and decision-
making.\5\
---------------------------------------------------------------------------
\4\ Order No. 771 defined ``complete e-Tags'' for purposes of
this rulemaking proceeding as: (1) e-Tags for interchange
transactions scheduled to flow into, out of, or within the United
States' portion of the Eastern or Western Interconnection, or into
the Electric Reliability Council of Texas and from the United
States' portion of the Eastern or Western Interconnection, or from
the Electric Reliability Council of Texas into the United States'
portion of the Eastern or Western Interconnection; and (2)
information on every aspect of each such e-Tag, including all
applicable e-Tag IDs, transaction types, market segments, physical
segments, profile sets, transmission reservations, and energy
schedules. See Order No. 771, FERC Stats & Regs ] 31,339 at n.2.
\5\ Order No. 771, FERC Stats & Regs ] 31,339 at P 27.
---------------------------------------------------------------------------
4. As the Commission explained in Order No. 771, the Commission
needs e-Tag data covering all transactions involving interconnected
entities listed on the e-Tag because the information is necessary to
understand the use of the interconnected electricity grid, and
particularly those transactions occurring at interchanges.\6\ The
Commission also found in Order No. 771 that regular access to e-Tags
for power flows across interchanges will make it possible for the
Commission to identify or analyze various behaviors by market
participants to determine if they are part of a potentially
manipulative scheme(s).\7\ As demonstrated by recent investigations by
the Commission's Office of Enforcement, for example, e-Tag information
can enable the Commission to investigate whether entities may be
engaging in manipulative schemes involving the circular scheduling of
imports and exports into a market to benefit other positions held by
these entities.\8\ The Commission also noted that e-Tag access will
help the Commission to understand, identify, and address instances
where interchange pricing methodologies or scheduling rules result in
inefficiencies and increased costs to market participants
collectively.\9\ The Commission also noted that access to e-Tag
information will allow the Commission to determine whether the
requirements of the mandatory business practice standards related to e-
Tags have been met.\10\
---------------------------------------------------------------------------
\6\ Id.
\7\ Id. P 28.
\8\ Id. P 28, n.72 (citing Gila River Power, LLC, 141 FERC ]
61,136 (2012)).
\9\ Id. P 29.
\10\ Id.
---------------------------------------------------------------------------
5. In Order No. 771, the Commission required e-Tag Authors, through
their Agent Service, and Balancing Authorities, through their Authority
Service, to take appropriate steps to ensure that the Commission is
included as an addressee on all e-Tags for interchange transactions
scheduled to flow into, out of, or within the United States' portion of
the Eastern or Western Interconnection, or into Electric Reliability
Council of Texas (ERCOT) and from the United States' portion of the
Eastern or Western Interconnection; or from ERCOT into the United
States' portion of the Eastern or Western Interconnection.\11\ The
Commission required that the e-Tag Authors include the Commission on
the CC list of entities with view-only rights to the e-Tags described
above. Further, the Commission required that the Balancing Authorities
(located within the United States) validate the inclusion of the
Commission on the CC list of the e-Tags before those e-Tags are
electronically delivered to an address specified by the Commission.\12\
---------------------------------------------------------------------------
\11\ Id. P 1; see also 18 CFR 366.2(d).
\12\ Id. P 41.
---------------------------------------------------------------------------
6. Order No. 771 also required that Regional Transmission
Organizations (RTO), Independent System Operators (ISO) and their
Market Monitoring Units (MMU) shall be afforded access to complete e-
Tags, upon request to e-Tag Authors and Authority Services, subject to
their entering into appropriate confidentiality agreements.
7. As noted above, requests for rehearing and/or clarification of
Order No. 771 were filed by four entities.\13\ In addition, PJM/SPP
filed a motion for leave to answer and answer in response to the
requests for rehearing and clarification. Rule 713(d) of the
Commission's Rules of Practice and Procedure prohibits an answer to a
request for rehearing.\14\ Accordingly, we will reject the answer.
---------------------------------------------------------------------------
\13\ See supra P 1.
\14\ 18 CFR 713(d) (2012).
---------------------------------------------------------------------------
8. The main concern raised by EEI/NRECA in its joint request for
rehearing and clarification pertains to the requirement that Sink
Balancing Authorities and their Authority Services must validate that
the Commission is a CC recipient of the e-Tags.\15\ NRECA's
individually filed rehearing request questions the Commission's legal
authority to require access to e-Tag data. Southern filed a request for
rehearing and clarification raising a number of issues, including: the
responsibilities of Balancing Authorities with respect to e-Tag data;
maintaining the confidentiality of e-Tag data; the applicability of the
Final Rule to new e-Tags; and what e-Tag data can be
[[Page 16135]]
requested by RTO/ISO MMUs. OATI \16\ filed a request for clarification
asking three questions: (1) Whether the requirements in the Final Rule
pertain only to Sink Balancing Authorities; (2) what e-Tag data can be
requested by RTOs, ISOs, and MMUs; and (3) what confidentiality
restrictions should apply to such requests. As stated above, in this
order, the Commission will address only those issues that require an
expedited response from the Commission to allow entities affected by
this rule to understand their obligation to ensure Commission access to
e-Tag data and comply with the rule in a timely manner. The Commission
will issue an additional rehearing order in due course to address
remaining issues, including its legal authority to access e-Tags.
---------------------------------------------------------------------------
\15\ EEI/NRECA at 2.
\16\ OATI states that it provides software solutions in the
North American energy industry, including e-Tag services (through
OATI webTag). OATI states it also provides Agent Services and
Authority Services to e-Tag Authors and Balancing Authorities,
respectively. See OATI at 1.
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III. Discussion
A. Requests for Extensions of Time
1. Comments
9. NRECA requests that the Commission issue an interim order on
rehearing extending Order No. 771's compliance deadline of March 15,
2013 until 60 days after the Commission acts on the merits of NRECA's
request for rehearing. EEI/NRECA also filed a motion for expedited
extension of the March 15, 2013 compliance deadline, asking that the
Commission grant the motion by February 15, 2013.\17\ Specifically,
EEI/NRECA ask the Commission to extend the deadline for including the
Commission in the CC field of the requisite e-Tags to 60 days after the
Commission responds to the EEI/NRECA request for rehearing and
clarification and, if the Commission retains the validation
requirement, the Commission should extend the deadline until 60 days
after the North American Energy Standards Board's (NAESB) e-Tag
protocols are modified to implement the requirement.\18\ Southern also
filed a motion for extension of time, asking that the Commission extend
the effective date to 60 days after NAESB implements the revisions to
its protocols to automate the system required to implement the Final
Rule.
---------------------------------------------------------------------------
\17\ EEI/NRECA at 3.
\18\ Id. at 5.
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2. Commission Determination
10. The Commission considers it important to begin obtaining the
data on e-Tags as soon as possible so that we can begin to analyze the
data and enhance our ability to carry out our regulatory missions of
detecting market manipulation and inefficient market rules and taking
appropriate action, where needed, to address any such problems.
Accordingly, the Commission is averse to allowing any unnecessary
delays before the requirements of Order No. 771 become effective.
11. Nevertheless, when the Commission reviewed the requests for
rehearing and for clarification, we determined that some of the
rehearing requests asked important questions that needed explanation
before action could be taken to comply with the rule. For this reason,
the Commission issued a notice, on February 1, 2013, extending the time
until Balancing Authorities are to be required to validate the
inclusion of the Commission on e-Tags until 30 days after the issuance
of an order, this order, which clarifies exactly what is entailed by
such validation. To ensure that Balancing Authorities have sufficient
time to implement this requirement, this order extends the time for
Balancing Authorities to comply with the validation requirement until
60 days from the date of publication of this order in the Federal
Register.
12. Given the importance of the objectives served by issuance of
Order No. 771, our notice of a limited time extension denied all other
requested time extensions and affirmed the time deadlines prescribed in
the Final Rule in all other respects. Therefore, given our
clarification in this order of the obligations of Sink Balancing
Authorities regarding the validation of Commission access to e-Tags,
Balancing Authorities will have until 60 days after publication of this
order to implement the validation requirement, as clarified below.
13. We also note that requests for rehearing and/or clarification
do not act as a stay of the compliance obligations prescribed in final
orders.\19\ As stated in the February 1, 2013 notice, full compliance
with all other obligations under Order No. 771 is required by March 15,
2013.
---------------------------------------------------------------------------
\19\ See 18 CFR 713(e) (2012).
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B. Requests for Rehearing and Clarification
1. Validation of the Commission on E-Tags
a. Comments
14. EEI/NRECA and Southern encourage the Commission to eliminate
the validation requirement if validation means that the Sink Balancing
Authority or its Authority Service should reject an e-Tag that does not
include the Commission in the CC field.\20\ EEI/NRECA and Southern
states that if validation means rejecting e-Tags that do not include
the Commission, then the Commission should direct the industry to
adjust the NAESB protocols to enable an automated process for
validation and careful implementation of the requirement.\21\
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\20\ EEI/NRECA at 4; Southern at 5-6.
\21\ EEI/NRECA at 2; Southern at 6.
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15. According to Southern, rejecting e-Tags that do not CC the
Commission could result in significant commercial and reliability
disruptions.\22\ EEI/NRECA also assert that rejecting e-Tags could
disrupt necessary power deliveries and implementing the change via
changes to the NAESB e-Tag protocols would avoid or minimize negative
consequences.\23\ EEI/NRECA add that if a Balancing Authority or
Authority Service reject an e-Tag and, thus, the power delivery it
covers, the e-Tag Author's only option may be to recreate the e-Tag if
time and circumstances permit.\24\
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\22\ Southern at 6.
\23\ EEI/NRECA at 2, 4.
\24\ Id. at 7.
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16. EEI/NRECA add that Sink Balancing Authorities and their
Authority Services may mistakenly reject an e-Tag and associated
delivery in error, when in fact the particular e-Tag is not required to
be CC'd to the Commission, such as for an internal or international
transaction.\25\ EEI/NRECA state that developing and implementing such
a change to NAESB protocols would take more time than the March 15,
2013 implementation deadline allows, possibly a year or more,
especially if NAESB addresses e-Tag issues other than validation.\26\
Southern states that, at most, the Commission should require the
Authority Services to add the Commission to the CC field, when
appropriate, but states that even this effort will require a reasonable
amount of time to provide for software changes and implementation.\27\
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\25\ Id.
\26\ Id.
\27\ Southern at 6.
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b. Commission Determination
17. The Commission has been asked to clarify whether the
Commission's directive in Order No. 771 (that Balancing Authorities,
through their Authority Services, validate that the Commission be given
access to e-Tags) requires rejection of e-Tags that fail to include the
Commission on the CC list as required, or merely requires Balancing
Authorities to notify the Commission that the e-Tag Author has failed
to include the Commission on an
[[Page 16136]]
e-Tag. We also have been asked to abandon or delay this requirement, if
validation means that tags that fail to include the Commission on the
CC list are to be rejected.
18. Our requirement in Order No. 771 for validation of e-Tags by
Balancing Authorities, through their Authority Services, means that
Balancing Authorities are to reject e-Tags that fail to include the
Commission on the CC list and not merely notify the Commission that
this requirement has not been met; the Commission's objective is to
gain access to the e-Tags covered by the Final Rule. Furthermore, we
reject the suggestion that we abandon this requirement as the
Commission is interested in actually obtaining access to the
information and is not merely interested in compiling a list of those
that fail to provide the required access to the information. Without a
validation process in place, the Commission would need to employ
additional, less efficient checks to ensure that the Commission is
obtaining consistent access to all relevant e-Tags.\28\
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\28\ Neither the Final Rule nor this order preclude Sink
Balancing Authorities and their Authority Services from conferring
and agreeing on the best way to implement the validation requirement
within the time limits provided by this order.
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19. We also reject the suggestions by EEI/NRECA and Southern that
we should delay implementation of the validation requirement until such
time as the industry, through NAESB, can develop a formalized automated
process. While we have no objection to the industry formalizing the
manner in which validation will be performed by asking NAESB to develop
a standard covering this, we are unwilling to allow such a process to
delay Commission access to this important information and, accordingly,
decline to defer compliance until the development of a formal NAESB
business practice standard on this topic.\29\
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\29\ We note, however, that in its comments filed on March 26,
2012, in response to the Notice of Proposed Rulemaking in this
proceeding, NAESB stated that there may be ``fairly simple technical
approaches'' to meet the Commission's request to receive all e-Tags
used to schedule the transmission of power.
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20. Additionally, as discussed above, the Commission has already
provided Balancing Authorities (and their Authority Services) with an
extension to accommodate their devising a system to comply with the
requirement that they must validate Commission access to e-Tags until
60 days after the publication of this order. By extending the
validation requirement for Balancing Authorities until 60 days after
the publication of this order, rather than March 15, 2013 (the
implementation date for aspects of Order No. 771), we are providing e-
Tag Authors and Balancing Authorities a testing period before all
requirements of Order No. 771 take effect. During this testing period,
e-Tag Authors will be able to comply with the Final Rule without
concern over whether their e-Tags will be rejected. Also during this
period, the Balancing Authorities (through their Authority Service) can
assess e-Tags submitted by e-Tag Authors after-the-fact and alert e-Tag
Authors to practices that would result in rejection once the validation
mechanisms are in place. Accordingly, we believe this staggered
approach will allow for the development of an automated process and
limit any operational or reliability issues associated with validation
requirements by giving e-Tag Authors and Balancing Authorities time to
familiarize themselves with the process of providing the Commission
with access to e-Tags, prior to all of the requirements of Order No.
771 taking effect.
21. In its comments, OATI states that it plans to offer additional
automated functionality to Balancing Authorities to further enable them
to satisfy their obligations under the Final Rule.\30\ OATI further
notes that scoping, development, testing, training and deployment of
automated functionality typically requires at least four weeks, and
sometimes longer, depending on the particular service.\31\ Staff's
research indicates that the vast majority of Balancing Authorities
(i.e., 135 out of 148 total Balancing Authorities registered in the
OATI webRegistry) rely on OATI to provide their Authority Service; nine
Balancing Authorities rely on another e-Tag service provider; three do
not have a registered Authority Service; and one appears to provide its
own Authority Service.\32\ Given the extension of time granted with
regard to the validation requirement, we anticipate that Balancing
Authorities and their Authority Services will be able to validate the
Commission's inclusion on e-Tags once this requirement takes effect.
---------------------------------------------------------------------------
\30\ OATI at 2.
\31\ Id. at 2.
\32\ These figures are based on staff analysis of the OATI
webRegistry, or NAESB Electric Industry Registry, published on
February 22, 2013.
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2. Prospective Effect of Order No. 771
a. Comments
22. EEI/NRECA and Southern seek clarification that the requirement
to CC the Commission on e-Tags applies only to e-Tags created starting
on or after the Order No. 771 compliance date, not ones created prior
to the compliance date even if covering deliveries occurring after that
date.\33\ EEI/NRECA and Southern note that, under the current NAESB
protocols, an e-Tag cannot be modified after it has been created.
Therefore, EEI/NRECA argue that modification of e-Tags created prior to
the compliance date for delivery after the compliance date would entail
terminating or recreating the e-Tags.\34\ Southern argues that, if all
e-Tags already generated before the effective date of the Final Rule
must be stopped and regenerated when the new requirements become
effective, the result will be massive disruption of physical power
transfers.\35\
---------------------------------------------------------------------------
\33\ EEI/NRECA at 9; Southern Companies at 3, 7.
\34\ EEI/NRECA at 9.
\35\ Southern at 7.
---------------------------------------------------------------------------
b. Commission Determination
23. We clarify that the requirement for the Commission to be
included in the CC field on the e-Tags applies only to e-Tags created
on or after the compliance date of Order No. 771 (i.e., March 15,
2013). Accordingly, pre-existing e-Tags do not need to be stopped,
regenerated, or otherwise modified.
3. Confidentiality of E-Tag Data Provided to Commission
a. Comments
24. EEI/NRECA encourage the Commission to ensure that its recently
revised regulations for privileged and confidential information at 18
CFR Part 388 will not inadvertently create any problems for protecting
the confidentiality of e-Tag data.\36\ EEI/NRECA argue that, as
amended, 18 CFR 388.112(b)(1) generally requires parties filing
confidential information to identify the filing as containing
confidential information with certain markings on each page and
justification for non-release and other requirements that are not
workable in the e-Tag context.\37\
---------------------------------------------------------------------------
\36\ EEI/NRECA at 5.
\37\ Id. at 10.
---------------------------------------------------------------------------
25. Similarly, Southern asks the Commission to clarify that
Balancing Authorities are not obligated to put a ``confidentiality
stamp'' on e-Tags, as required for documents to prevent them from
disclosure.\38\ EEI/NRECA and Southern ask the Commission to specify
that it will handle all e-Tag information as confidential without the
need to comply with the requirements of section 388.112 of the
Commission's regulations and that the Commission will not
[[Page 16137]]
release the information to third parties in response to a FOIA request
without first notifying the e-Tag Author and giving the e-Tag Author
adequate time to respond to the request by justifying non-
disclosure.\39\ EEI/NRECA add that any information the author
identifies as confidential is protected by a confidentiality agreement
if it is released in response to a FOIA request.
---------------------------------------------------------------------------
\38\ Id. at 3, 8.
\39\ EEI/NRECA at 10; Southern at 3, 9.
---------------------------------------------------------------------------
26. Southern asks the Commission to clarify that, once e-Tag
information is provided to the Commission, it meets the requirements of
exemption 4 under FOIA, as it is information that would be otherwise
privileged or confidential.\40\ In addition, Southern states that
Balancing Authorities should not be liable for any disclosure of
confidential e-Tag information, including inadvertent publication of e-
Tag information by a recipient of e-Tag data under Order No. 771 and
publication of e-Tag data subject to FOIA.\41\
---------------------------------------------------------------------------
\40\ Southern at 3, 8.
\41\ Id. at 9.
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b. Commission Determination
27. In light of the concerns raised by EEI/NRECA with respect to
claims of privileged or confidential information, the Commission will
handle e-Tag information as privileged or confidential under section
388.112 of the Commission's regulations without the need for e-Tag
Authors and Balancing Authorities to include certain markings required
under section 388.112(b)(1) of the Commission's regulations.\42\ In
other words, the Commission will deem e-Tags made available to the
Commission under Order No. 771 as universally being provided subject to
a request for confidential treatment and e-Tag Authors do not need to
separately make a request for confidential treatment in each instance
for this to apply. This does not, however, foreclose the rights of
persons to make a request for disclosure of this information under the
Freedom of Information Act and the provisions of 18 CFR 388.108.
---------------------------------------------------------------------------
\42\ Section 388.112(b)(1) of the Commission's regulations, 18
CFR 388.112(b)(1), requires, among other matters, certain markings
to be placed on ``documents'' that are filed with the Commission.
Specifically, section 388.112(b)(1) provides: ``A person requesting
that a document filed with the Commission be treated as privileged
or CEII must designate the document as privileged or CEII in making
an electronic filing or clearly indicate a request for such
treatment on a paper filing. The header of the first page of the
cover sheet or transmittal letter and of the pages or portions of
the document containing material for which privileged treatment is
claimed should be clearly marked in bold, capital lettering,
indicating that it contains privileged, confidential and/or Critical
Energy Infrastructure Information, as appropriate, and market [squ]
DO NOT RELEASE. [squ]''
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28. We decline to specify, as requested by Southern, that e-Tag
information provided to the Commission meets the requirements of
exemption 4 of FOIA because it is information that would be otherwise
privileged or confidential. Order No. 771 acknowledged that some of the
information contained in the e-Tags is likely to be commercially
sensitive and that disclosure of such data may result in competitive
harm to market participants and the market as a whole without
reasonable confidentiality restrictions.\43\ To the extent a person
files a request to obtain e-Tag data from the Commission under the
Freedom of Information Act (FOIA), we expect that any commercially-
sensitive e-Tag data would be protected from disclosure if it satisfies
the requirements of FOIA's exemption 4, which protects trade secrets
and commercial or financial information that is privileged or
confidential.\44\ Nonetheless, such requests must be evaluated on a
case-by-case basis and we cannot peremptorily foreclose such requests,
as requested by Southern.
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\43\ Order No. 771, FERC Stats & Regs ] 31,339 at P 58.
\44\ Id.
---------------------------------------------------------------------------
29. In addition, we find that, consistent with the procedures set
forth in section 388.112(d) of the Commission's regulations, the
Commission will not release e-Tag information to third parties in
response to a FOIA request without first notifying the e-Tag Author and
any relevant Sink Balancing Authority and giving the e-Tag Author and
any Sink Balancing Authority an opportunity (at least five calendar
days) in which to comment in writing on the request. If the e-Tag
Author objects to the release of e-Tag information, and if the
Commission or an appropriate Commission official determines that such
information should be released, notice will be given to the e-Tag
Author no less than five calendar days before disclosure, pursuant to
section 388.112(e) of the Commission's regulations.
30. As to Southern's request that we determine that Balancing
Authorities will not be held liable for inadvertent disclosure of
confidential e-Tag information, we will address this request in our
further rehearing order.
4. Internal E-Tags
a. Comments
31. EEI/NRECA ask the Commission to clarify that it is not seeking
e-Tags that are used within a Balancing Authority for internal
purposes, such as where there is only one ``party'' to an e-Tag.\45\
EEI/NRECA state that such e-Tags are often used by companies and
cooperatives to manage their internal systems within their service
territories.\46\
---------------------------------------------------------------------------
\45\ EEI/NRECA at 8.
\46\ Id. at 8.
---------------------------------------------------------------------------
b. Commission Determination
32. As noted above, e-Tags are used to schedule interchange
transactions in wholesale markets, which are defined as ``[a]n
agreement to transfer energy from a seller to a buyer that crosses one
or more Balancing Authority Area boundaries.'' \47\ However, in
practice, as noted by EEI/NRECA, e-Tags can also be used to schedule
internal, or Intra-Balancing Authority, transactions. Business practice
standards related to Intra-Balancing Authority e-Tags are the same as
the standards that apply to e-Tags that cross Balancing Authority Area
boundaries.\48\ As such, we find that treating Intra-Balancing
Authority e-Tags in the same manner as interchange e-Tags would be
consistent with, and least disruptive of, established industry practice
and fall within the categories of e-Tags that we required to be made
available to the Commission in Order No. 771. Therefore, we clarify
that e-Tag Authors, through their Agent Service, must include the
Commission on the CC list of entities with view-only rights for all e-
Tags covered by the Final Rule, which include intra-Balancing Authority
e-Tags of the type described by EEI/NRECA.
---------------------------------------------------------------------------
\47\ See Order No. 771, FERC Stats & Regs ] 31,339 at P 3 n.8
(citing NERC's Glossary of Terms Used in Reliability Standards
(updated November 15, 2012), available at https://www.nerc.com/files/Glossary_of_Terms.pdf).
\48\ In particular, the NAESB Wholesale Electric Quadrant (WEQ)
Business Practice Standards (Coordinate Interchange) requirement
004-1.1 provides that ``[t]o the extent that intra BA transactions
are submitted as a RFI, those transactions will be subject to all
provisions of this Business Practice Standard WEQ-004.''
---------------------------------------------------------------------------
33. Additionally, requiring that all e-Tags, including Intra-
Balancing Authority e-Tags, include the Commission on the CC list
simplifies compliance with the requirements of Order No. 771 for e-Tag
Authors and Sink Balancing Authorities. Specifically, if the Commission
created an exception whereby a limited number of Intra-Balancing
Authority e-Tags do not include the Commission on the CC list, then
Balancing Authorities would need to take additional steps to ensure
that their validation procedures did not incorrectly reject these e-
Tags. Simply put, by not allowing this exception for Intra-Balancing
Authority e-Tags, Balancing Authorities with validation
responsibilities would simply check
[[Page 16138]]
only the CC list of an e-Tag to see if the Commission is included. If
an Intra-Balancing Authority exception were created, Balancing
Authorities with validation responsibilities would first need to check
the market and physical segments of an e-Tag to see if they met
additional criteria, and then check to see if the Commission is
included on the CC list. Likewise, e-Tag Authors would have to develop
additional procedures to ensure an Intra-Balancing Authority exception
was appropriately implemented.
5. Balancing Authorities
a. Comments
34. OATI states that Order No. 771 creates certain obligations on
``Balancing Authorities'' and notes that multiple Balancing Authorities
can be listed on a single e-Tag. OATI seeks clarification that the
Final Rule refers to the Balancing Authority serving as the Sink
Balancing Authority and providing e-Tag Authority Services for the
particular e-Tag transaction, rather than to other Balancing
Authorities that may be listed on the e-Tag.\49\
---------------------------------------------------------------------------
\49\ OATI at 6.
---------------------------------------------------------------------------
b. Commission Determination
35. Order No. 771 imposes certain requirements on Balancing
Authorities located within the United States with respect to ensuring
Commission access to e-Tags.\50\ In response to OATI's question, we
clarify that the requirements on Balancing Authorities to ensure
Commission access to e-Tags relate only to the Sink Balancing Authority
on an e-Tag and not to other Balancing Authorities that may be included
on an e-Tag.\51\
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\50\ See Order No. 771, FERC Stats & Regs ] 31,339 at P 39; 18
CFR 366.2(d).
\51\ See, e.g., NAESB Wholesale Electric Quadrant (WEQ) Business
Practice Standards (Coordinate Interchange) requirement 004-1 (``All
requests to implement bilateral Interchange * * * between a Source
BA and Sink BA, where one or both BAs are located in either the
Eastern or Western Interconnection, shall be accomplished by the
submission of a completed and accurate RFI) to the Sink BA's
registered e-Tag Authority Service'') and requirement 004-2 (``Until
other means are adopted by NAESB, the primary method of submitting
the RFI shall be an e-Tag communicated to and managed by the Sink
BA's registered e-Tag authority service using protocols compliant
with the Version 1.8.1 Electronic Tagging Functional
Specification.'' (Emphasis added.)). See NAESB Wholesale Electric
Quadrant (WEQ) Business Practice Standards (Version 003), published
July 31, 2012.
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The Commission orders:
The Commission hereby grants rehearing in part, and denies
rehearing in part, as discussed in the body of the order.
By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2013-05856 Filed 3-13-13; 8:45 am]
BILLING CODE 6717-01-P