Final Order Regarding Southwest Power Pool, Inc. Application To Exempt Specified Transactions; Amendment to the Final Order Exempting Specified Transactions of Certain Independent System Operators and Regional Transmission Organizations, 73062-73087 [2016-25571]

Download as PDF 73062 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices 1. Participants will use review genetic studies, growth patterns, existing stock definitions, prior SEDAR stock ID recommendations, and any other relevant information on Gray Snapper stock structure. 2. Participants will make recommendations on biological stock structure and define the unit stock or stocks to be addressed through this assessment. 3. Participants will provide recommendations to address Council management jurisdictions, to support management of the stock or stocks, and specification of management benchmarks and fishing levels by Council jurisdiction in a manner consistent with the productivity measures of the stock. 4. Participants will document work group discussion and recommendations through a Data Workshop working paper for SEDAR 51. Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency. Special Accommodations The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see ADDRESSES) at least 5 business days prior to each workshop. Note: The times and sequence specified in this agenda are subject to change. Authority: 16 U.S.C. 1801 et seq. Dated: October 19, 2016. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2016–25651 Filed 10–21–16; 8:45 am] sradovich on DSK3GMQ082PROD with NOTICES BILLING CODE 3510–22–P COMMODITY FUTURES TRADING COMMISSION Final Order Regarding Southwest Power Pool, Inc. Application To Exempt Specified Transactions; Amendment to the Final Order Exempting Specified Transactions of Certain Independent System Operators and Regional Transmission Organizations Commodity Futures Trading Commission. ACTION: Final order. AGENCY: The Commodity Futures Trading Commission (‘‘CFTC’’ or ‘‘Commission’’) is issuing a final order in response to an application from Southwest Power Pool, Inc. (‘‘SPP’’) to exempt specified transactions from certain provisions of the Commodity Exchange Act (‘‘CEA’’ or ‘‘Act’’) and Commission regulations. In this release, the Commission is also amending an order issued on March 28, 2013 exempting other specified transactions from certain provisions of the CEA and Commission regulations. DATES: The effective date for the SPP Final Order and the Amended RTO–ISO Order is October 24, 2016. FOR FURTHER INFORMATION CONTACT: Robert B. Wasserman, Chief Counsel, 202–418–5092, rwasserman@cftc.gov, Alicia L. Lewis, Special Counsel, 202– ´ 418–5862, alewis@cftc.gov, or Andree Goldsmith, Special Counsel, 202–418– 6624, agoldsmith@cftc.gov, Division of Clearing and Risk; David P. Van Wagner, Chief Counsel, 202–418–5481, dvanwagner@cftc.gov, or Riva Spear Adriance, Senior Special Counsel, 202– 418–5494, radriance@cftc.gov, Division of Market Oversight, in each case at the Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581. SUPPLEMENTARY INFORMATION: SUMMARY: Overview The Commission is issuing a final order (‘‘SPP Final Order’’) in response to an application (‘‘Exemption Application’’) 1 from SPP to exempt certain Transmission Congestion Rights, Energy Transactions, and Operating Reserve Transactions (collectively, the ‘‘SPP Covered Transactions’’) from certain provisions of the CEA 2 and Commission regulations. The SPP Final Order exempts contracts, agreements, 1 In the Matter of the Application for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by Southwest Power Pool, Inc., Oct. 17, 2013, as amended Aug. 1, 2014. 2 7 U.S.C. 1 et seq. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 and transactions for the purchase or sale of the limited electric energy-related products that are specifically described within the SPP Final Order from certain provisions of the CEA and Commission regulations, with the exception of the Commission’s general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations § 23.410(a) and (b), § 32.4, and part 180.3 The exemption in the SPP Final Order also will exempt such transactions from private actions pursuant to CEA section 22.4 To be eligible for the exemption contained in the SPP Final Order, the contract, agreement, or transaction must be offered or entered into in a market administered by SPP pursuant to SPP’s tariff, rate schedule, or protocol (collectively, ‘‘Tariff’’), and the Tariff must have been approved by the Federal Energy Regulatory Commission (‘‘FERC’’). In addition, the contract, agreement, or transaction must be entered into by persons who are ‘‘appropriate persons,’’ as defined in sections 4(c)(3)(A) through (J) of the Act,5 ‘‘eligible contract participants,’’ as defined in section 1a(18)(A) of the Act and Commission regulations,6 or persons who are in the business of: (i) Generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system. The SPP Final Order also extends to any person or class of persons offering, entering into, rendering advice, or rendering other services with respect to the SPP Covered Transactions. Finally, the SPP Final Order is subject to other conditions set forth therein. Authority for issuing the exemption is found in section 4(c)(6) of the Act.7 The Commission issued a proposed order and request for comment with respect to SPP’s Exemption Application (‘‘SPP Proposed Order’’) on May 18, 2015.8 3 The foregoing provisions are referred to as the ‘‘Excepted Provisions.’’ 4 7 U.S.C. 25. 5 7 U.S.C. 6(c)(3)(A) through (J). 6 7 U.S.C. 1a(18)(A). 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. 7 7 U.S.C. 6(c)(6). 8 Notice of Proposed Order and Request for Comment on an Application for an Exemptive Order From Southwest Power Pool, Inc. From Certain Provisions of the Commodity Exchange Act E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices sradovich on DSK3GMQ082PROD with NOTICES A copy of the Exemption Application is available on the Commission’s Web site at http://www.cftc.gov/stellent/ groups/public/@requestsandactions/ documents/ifdocs/ spp4camdappl080114.pdf; the attachments to the Application are posted at http://www.cftc.gov/stellent/ groups/public/@requestsandactions/ documents/ifdocs/spp4cattach-agg080114.pdf. A chart submitted by SPP that sets forth the status of its implementation of the standards set forth in FERC Order No. 741 is posted at http://www.cftc.gov/stellent/groups/ public/@requestsandactions/ documents/ifdocs/spp4caddendum_ b.pdf. A copy of the SPP Proposed Order is available at 80 FR 29490, and on the Commission’s Web site at http:// www.cftc.gov/ucm/groups/public/@ lrfederalregister/documents/file/201512346a.pdf. A copy of the comment file with respect to the SPP Proposed Order is available on the Commission’s Web site at http://comments.cftc.gov/ PublicComments/ CommentList.aspx?id=1586. The Commission is also amending an order issued on March 28, 2013 pursuant to the authority in section 4(c)(6) of the Act exempting specified electric energy transactions from certain provisions of the CEA and Commission regulations (‘‘RTO–ISO Order’’).9 The RTO–ISO Order was issued in response to a consolidated petition from certain regional transmission organizations (‘‘RTOs’’) and independent system operators (‘‘ISOs’’). The RTO–ISO Order exempted contracts, agreements, and transactions for the purchase or sale of the limited electric energy-related products that are specifically described within the RTO–ISO Order from certain provisions of the CEA and Commission regulations, with the exception of the Commission’s general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not Pursuant to the Authority Provided in Section 4(c)(6) of the Act, 80 FR 29490, May 21, 2015. The SPP Proposed Order was published in the Federal Register on May 21, 2015. 9 Final Order in Response to 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 Regulatory Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in the Act, 78 FR 19880, Apr. 2, 2013. The RTO–ISO Order was published in the Federal Register on April 2, 2013. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180. The RTO–ISO Order did not specifically mention CEA section 22. The Commission issued a proposal to amend the RTO–ISO Order and request for comment on May 9, 2016 (‘‘RTO–ISO Order Proposed Amendment’’).10 The Commission is amending the text of the RTO–ISO Order to also exempt the transactions covered under that order from private actions pursuant to CEA section 22 (‘‘Amended RTO–ISO Order’’). A copy of the RTO–ISO Order is available at 78 FR 19880 (April 2, 2013), and on the Commission’s Web site at http://www.cftc.gov/idc/groups/public/ @lrfederalregister/documents/file/201307634a.pdf. A copy of the RTO–ISO Order Proposed Amendment is available at 81 FR 30245 (May 16, 2016), and on the Commission’s Web site at http:// www.cftc.gov/idc/groups/public/@ lrfederalregister/documents/file/201611385a.pdf. A copy of the comment file with respect to the RTO–ISO Order Proposed Amendment is available on the Commission’s Web site at http:// comments.cftc.gov/PublicComments/ CommentList.aspx?id=1697. Table of Contents I. Relevant Dodd-Frank Provisions II. Background A. RTO–ISO Order B. SPP Exemption Application C. SPP Proposed Order 1. Transactions Proposed To Be Exempted 2. Conditions to the SPP Proposed Order 3. Additional Limitations D. Aspire v. GDF Suez E. RTO–ISO Order Proposed Amendment III. Summary of Comments A. Overview of Comments B. Private Right of Action Under CEA Section 22 1. Summary of Comments 2. Commission Determination C. Use of the Term ‘‘Member’’ in the SPP Proposed Order IV. Section 4(c) Determinations A. Section 4(c) Analysis 1. Overview of CEA Section 4(c) a. Sections 4(c)(6)(A) and (B) b. Section 4(c)(1) c. Discussion of Comments on Sections 4(c)(6) and 4(c)(1) d. Section 4(c)(2) e. Section 4(c)(3) 10 Notice of Proposed Amendment to and Request for Comment on the Final Order in Response to 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 Regulatory Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in the Act, 81 FR 30245, May 16, 2016. The RTO–ISO Order Proposed Amendment was published in the Federal Register on May 16, 2016. PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 73063 2. CEA Section 4(c) Determinations—SPP Final Order a. Commission Jurisdiction b. Consistent With the Public Interest and Purposes of the CEA c. CEA Section 4(a) Should Not Apply to the Transactions or Entities Eligible for the Exemption d. Appropriate Persons e. Effect on the Commission’s or Any Contract Market’s Ability To Discharge Its Regulatory or Self-Regulatory Duties Under the CEA 3. CEA Section 4(c) Determinations— Amended RTO–ISO Order a. Consistent With the Public Interest and Purposes of the CEA b. Other Section 4(c) Determinations B. Additional Limitations and Provisions— SPP Final Order V. Related Matters A. Regulatory Flexibility Act 1. Introduction 2. SPP Final Order 3. Amended RTO–ISO Order B. Paperwork Reduction Act 1. Introduction 2. SPP Final Order 3. Amended RTO–ISO Order C. Cost-Benefit Considerations 1. Introduction 2. SPP Final Order a. Background b. SPP Proposed Order and Request for Comment on the Commission’s Proposed Consideration of Costs and Benefits c. Summary of the SPP Final Order d. Baseline e. Benefits f. Costs g. Consideration of Alternatives h. Consideration of CEA Section 15(a) Factors 3. Amended RTO–ISO Order a. Background b. RTO–ISO Order Proposed Amendment and Request for Comment on the Commission’s Proposed Consideration of Costs and Benefits c. Summary of the Amended RTO–ISO Order d. Baseline e. Benefits f. Costs g. Consideration of Alternatives h. Consideration of CEA Section 15(a) Factors VI. SPP Final Order VII. Amended RTO–ISO Order I. Relevant Dodd-Frank Provisions 11 On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (‘‘Dodd-Frank Act’’).12 Title VII of the Dodd-Frank Act amended the CEA and altered the scope of the Commission’s 11 For a fuller discussion, see RTO–ISO Order at 19881–82. 12 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/ucm/ groups/public/@swaps/documents/file/hr4173_ enrolledbill.pdf. E:\FR\FM\24OCN1.SGM 24OCN1 73064 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices exclusive jurisdiction.13 In particular, it expanded the Commission’s exclusive jurisdiction, which had included futures traded, executed, and cleared on CFTCregulated exchanges and clearinghouses, to also cover swaps traded, executed, or cleared on CFTC-regulated exchanges or clearinghouses.14 As a result, the Commission’s exclusive jurisdiction now includes swaps as well as futures. The Dodd-Frank Act also added a savings clause that addresses the roles of the Commission, FERC, and state regulatory authorities as they relate to certain agreements, contracts, or transactions traded pursuant to the tariff or rate schedule of an RTO or ISO that has been approved by FERC or the state regulatory authority.15 That savings clause, paragraph (I)(i) of CEA section 2(a)(1), preserves the statutory authority of FERC and state regulatory authorities over agreements, contracts, or transactions entered into pursuant to a tariff or rate schedule approved by FERC or a State regulatory authority, 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 or trading facility owned or operated by an RTO or ISO.16 However, paragraph (I)(ii) of CEA section 2(a)(1) also preserves the Commission’s statutory authority over such agreements, contracts, or transactions.17 The Dodd-Frank Act granted the Commission specific powers to exempt certain contracts, agreements, or transactions from duties otherwise required by statute or Commission regulation by adding, as relevant here, new section 4(c)(6) to the CEA. Section 4(c)(6) provides that the Commission shall, if certain conditions are met, issue exemptions from the ‘‘requirements’’ of the CEA for certain transactions entered into pursuant to a tariff or rate schedule approved or permitted to take effect by FERC or a state regulatory authority.18 The Commission must act ‘‘in accordance with’’ sections 4(c)(1) and (2) of the CEA when issuing an 13 Section 722(e) of the Dodd-Frank Act. 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). 15 See 7 U.S.C. 2(a)(1)(I). 16 7 U.S.C. 2(a)(1)(I)(i). 17 See 7 U.S.C. 2(a)(1)(I)(ii). 18 See 7 U.S.C. 6(c)(6). CEA section 4(c)(6) provides that the Commission shall issue an exemption only if the Commission determines that the exemption would be consistent with the public interest and the purposes of this Act. Moreover, the Commission must act in accordance with 4(c)(1) and 4(c)(2) when issuing an exemption under section 4(c)(6). sradovich on DSK3GMQ082PROD with NOTICES 14 See VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 exemption under section 4(c)(6).19 Section 4(c)(1) grants the Commission the authority to exempt any agreement, contract, or transaction or class of transactions, including swaps, from certain provisions of the CEA, in order to promote responsible economic or financial innovation and fair competition.20 Section 4(c)(2) 21 of the Act further provides that the Commission may not grant exemptive relief unless it determines that: (1) The exemption would be consistent with the public interest and the purposes of the CEA; (2) the transaction will be entered into solely between ‘‘appropriate persons’’ as that term is defined in section 4(c); 22 and (3) 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 responsibilities under the CEA.23 In enacting section 4(c), Congress noted that the purpose of the provision is to give the Commission a means of providing certainty and stability to existing and emerging markets so that financial innovation and market development can proceed in an effective and competitive manner.24 II. Background A. RTO–ISO Order On March 28, 2013, the Commission issued the RTO–ISO Order, which exempts specified transactions of particular RTOs and ISOs 25 from certain provisions of the CEA and Commission regulations. The scope of the RTO–ISO Order includes transactions that fall within the definitions of ‘‘Financial Transmission 19 7 U.S.C. 6(c)(6). U.S.C. 6(c)(1). 21 7 U.S.C. 6(c)(2). 22 Section 4(c)(3) of the CEA further outlines who may constitute an appropriate person for the purpose of a particular 4(c) exemption and includes, as relevant to the SPP Final Order: (a) Any person that qualifies for 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. 23 7 U.S.C. 6(c)(2). 24 H.R. Rep. No. 102–978, 102d Cong. 2d Sess., 1992 U.S.C.C.A.N. 3179, 3213 (1992). 25 Six entities (the ‘‘Requesting Parties’’) jointly filed a petition requesting the exemption provided in the RTO–ISO Order: Midwest Independent Transmission System Operator, Inc. (‘‘MISO’’), ISO New England, Inc. (‘‘ISO NE’’), and PJM Interconnection, L.L.C. (‘‘PJM’’) are RTOs subject to regulation by FERC; California Independent System Operator Corporation (‘‘CAISO’’) and New York Independent System Operator, Inc. (‘‘NYISO’’) are ISOs subject to regulation by FERC; and the Electric Reliability Council of Texas, Inc. (‘‘ERCOT’’) performs the role of an ISO and is subject to regulation by the Public Utility Commission of Texas (‘‘PUCT’’). See RTO–ISO Order at 19882. 20 7 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 Rights,’’ ‘‘Energy Transactions,’’ ‘‘Forward Capacity Transactions,’’ or ‘‘Reserve or Regulation Transactions’’ 26 (collectively, the ‘‘RTO–ISO Covered Transactions’’) and that are offered or sold in a market administered by one of the petitioning RTOs or ISOs pursuant to a tariff, rate schedule, or protocol that has been approved or permitted to take effect by FERC or PUCT.27 In addition, to be eligible for the exemption in the RTO–ISO Order, all parties to the agreements, contracts, or transactions that are covered by the RTO–ISO Order must be: (1) ‘‘appropriate persons,’’ as defined in section 4(c)(3)(A) through (J) of the CEA; (2) ‘‘eligible contract participants,’’ as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m); or (3) in the business of (i) generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system.28 To be eligible for the exemption in the RTO–ISO Order, the transactions must comply with all other enumerated terms and conditions in the RTO–ISO Order.29 The relief granted in, and the conditions imposed by, the SPP Proposed Order are consistent with the analogous provisions of the RTO–ISO Order. In the RTO–ISO Order, the Commission excepted from the exemption the Commission’s general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.30 The RTO–ISO Order did not discuss CEA section 22. B. SPP Exemption Application On October 17, 2013, SPP filed an Exemption Application 31 with the Commission requesting that the 26 See id. at 19912–13. id. at 19913. The exemption in the RTO– ISO Order also applies to ‘‘any person or class of persons offering, entering into, rendering advice, or rendering other services with respect’’ to any of the RTO–ISO Covered Transactions. See id. at 19912. These entities, including the six Requesting Parties (see supra note 25) are hereinafter referred to collectively as the ‘‘RTO–ISO Covered Entities.’’ 28 See id. at 19913–14. 29 See id. at 19912–15. 30 See id. at 19912. 31 SPP filed an amended Exemption Application on August 1, 2014. Citations herein to ‘‘Exemption Application’’ are to the amended Exemption Application. 27 See E:\FR\FM\24OCN1.SGM 24OCN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices Commission exercise its authority under section 4(c)(6) of the CEA 32 and section 712(f) of the Dodd-Frank Act 33 to exempt certain contracts, agreements, and transactions for the purchase or sale of specified electric energy products, that are offered pursuant to a FERCapproved Tariff, from most provisions of the Act.34 SPP is an RTO subject to regulation by FERC. As described in greater detail below, FERC encouraged the formation of RTOs to administer the electric energy transmission grid on a regional basis.35 SPP specifically requested that the Commission exempt from most provisions of the CEA certain ‘‘transmission congestion rights,’’ ‘‘energy transactions,’’ and ‘‘operating reserve transactions,’’ as those terms are defined in the Exemption Application, if such transactions are offered or entered into pursuant to a Tariff under which SPP operates that has been approved by FERC, as well as any persons (including SPP, its members and its market participants) offering, entering into, rendering advice, or rendering other services with respect to such transactions.36 SPP asserted 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, and (b) part of, and inextricably linked to, SPP’s delivery of electric energy and the organized wholesale electric energy markets that are subject to regulation and oversight by FERC.37 SPP expressly excluded from the Exemption Application any request for relief from the Commission’s general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4 and part 180,38 and such provisions explicitly have been carved out of the SPP Proposed Order. SPP asserted that it is seeking the requested exemption in order to provide greater legal certainty with respect to the regulatory requirements that apply 32 7 U.S.C. 6(c)(6). section 712(f) of the Dodd-Frank Act. 34 See Exemption Application at 1. 35 See id. at 2 n.7. 36 See id. at 11–15. 37 See id. at 17. 38 See id. at 1. 33 See VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 to the transactions that are the subject of the Exemption Application.39 As discussed above,40 the relief that SPP requested is substantially similar to the relief the Commission granted in the RTO–ISO Order. C. SPP Proposed Order On May 18, 2015, the Commission issued the SPP Proposed Order.41 The exemptive relief proposed in the SPP Proposed Order was substantially similar to the exemptive relief granted by the Commission in the RTO–ISO Order. 1. Transactions Proposed To Be Exempted In the SPP Proposed Order, the Commission proposed to exempt the purchase and sale of three types of SPP Covered Transactions: (1) Transmission Congestion Rights (‘‘TCRs’’), (2) Energy Transactions, and (3) Operating Reserve Transactions, each as defined below, pursuant to section 4(c)(6) of the CEA.42 A TCR 43 was proposed to be defined as ‘‘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 electric energy, established on an electric energy market administered by SPP, at a specified source (i.e., where electric energy is deemed injected into SPP’s grid) and a specified sink (i.e., where electric energy is deemed withdrawn from SPP’s grid).’’ 44 As set forth in the SPP 39 See id. at 11. supra section II.A. 41 80 FR 29490 (May 21, 2015). 42 Id. at 29493–94, 29516–17. As set forth in the SPP Proposed Order, SPP represents that the terms ‘‘Transmission Congestion Rights,’’ ‘‘Energy Transactions,’’ and ‘‘Operating Reserve Transactions’’ are SPP’s equivalent of the following terms set forth in the RTO–ISO Order: ‘‘Financial Transmission Right,’’ ‘‘Energy Transactions,’’ and ‘‘Reserve or Regulation Transactions,’’ respectively. SPP also avers that its transactions are defined in a manner consistent with the terms set forth in the RTO–ISO Order. Id. at 29493 n.51. 43 As set forth in the SPP Proposed Order, SPP’s markets will also include Auction Revenue Rights (‘‘ARRs’’). ARRs are allocated to transmission customers based on historical network load or transmission service reservations (or equivalent service taken under a grandfathered agreement between an SPP transmission owner and a customer). ARRs are granted exclusively to transmission service customers (i.e., not to other market participants or speculators) based on their transmission service (or grandfathered service) and are subject to SPP’s simultaneous feasibility analysis of the capability of the SPP Transmission System. ARRs are not traded in SPP’s market; instead, ARRs entitle the holder to a share of revenues from SPP-administered transmission congestion right auctions or may be ‘‘selfconverted’’ at the customer’s election into a transmission congestion right. Id. at 29493 n.52. 44 Id. at 29493; see also id. at 29517. The proposed definition of TCR is similar to the 40 See PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 73065 Proposed Order, TCRs would be exempt only where each TCR is linked to, and the aggregate volume of TCRs for any period of time is limited by, the physical capability (after accounting for counterflow) of SPP’s electric energy transmission system for such period; SPP serves as the market administrator for the market on which the TCRs are transacted; each party to the transaction is a market participant of SPP (or is SPP itself) and the transaction is executed on a market administered by SPP; and the transaction does not require any party to make or take physical delivery of electric energy.45 ‘‘Energy Transactions’’ were proposed to be defined as transactions in the SPP ‘‘Day-Ahead Market’’ 46 or ‘‘Real-Time Balancing Market,’’ 47 as those terms are defined in the SPP Proposed Order, for the purchase or sale of a specified quantity of electric energy at a specified location (including virtual bids and offers) where the price of electric energy is established at the time the transaction is executed.48 Performance occurs in the Real-Time Balancing Market by either the physical delivery or receipt of the specified electric energy or a cash payment or receipt at the price established in the Day-Ahead Market or Real-Time Balancing 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 electric energy transmission system operated by SPP for that period of time.49 ‘‘Operating Reserve Transactions’’ were proposed to be defined as transactions: (1) In which SPP, for the benefit of loadserving entities and resources, purchases, through auction, the right, during a period of definition of financial transmission right (‘‘FTR’’) in the RTO–ISO Order. However, the proposed definition of TCR does not include TCR options, whereas the RTO–ISO Order’s definition of FTR includes such rights in the form of options. Id. at 29493 n.53; cf. RTO–ISO Order at 19913 (defining the term FTR to include FTRs and FTRs in the form of options). 45 80 FR at 29493. 46 ‘‘Day-Ahead Market’’ was defined in the SPP Proposed Order as ‘‘an electric energy market administered by SPP on which the price of electric energy at a specified location is determined, in accordance with SPP’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.’’ Id. at 29517. 47 ‘‘Real-Time Balancing Market’’ was defined in the SPP Proposed Order as ‘‘an electric energy market administered by SPP on which the price of electric energy at a specified location is determined, in accordance with SPP’s Tariff, for specified time periods within the same 24-hour period.’’ Id. 48 Id. at 29493; see also id. at 29517. The definition of Energy Transactions is similar to the definition used by the Commission in the RTO–ISO Order. See RTO–ISO Order at 19913. 49 80 FR at 29493; see also id. at 29517. E:\FR\FM\24OCN1.SGM 24OCN1 73066 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices time as specified in SPP’s Tariff, to require the seller of such right to operate electric energy facilities in a physical state such that the facilities can increase or decrease the rate of injection or withdrawal of a specified quantity of electric energy into or from the electric energy transmission system operated by SPP with: (a) Physical performance by the seller’s facilities within a response time interval specified in SPP’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 SPP’s Day-Ahead or Real-Time Balancing Market, as those terms are defined in the SPP Proposed Order, price for electric energy applicable whenever SPP exercises its right that electric energy be delivered (including ‘‘Demand Response,’’ as defined in the SPP Proposed Order); (b) Compensation for the opportunity cost of not supplying or consuming electric energy or other services during any period during which SPP requires that the seller not supply energy or other services; (c) An upfront payment determined through the auction administered by SPP for this service; (d) An additional amount indexed to the frequency, duration, or other attributes of physical performance as specified in SPP’s Tariff; and (3) In which the value, quantity, and specifications of such transactions for SPP for any period of time shall be limited to the physical capability of the electric energy transmission system operated by SPP for that period of time.50 Finally, in the SPP Proposed Order, the Commission clarified that financial transactions that are not tied to the allocation of the physical capabilities of an electric energy transmission grid would not be suitable for exemption, and were therefore not covered by the SPP Proposed Order, because such activity would not be inextricably linked to the physical delivery of electric energy.51 sradovich on DSK3GMQ082PROD with NOTICES 2. Conditions to the SPP Proposed Order In the SPP Proposed Order, the Commission proposed four conditions, each of which is consistent with the RTO–ISO Order. First, the Commission proposed that all parties to the agreements, contracts, or transactions that are covered by the SPP Proposed Order must be ‘‘appropriate persons,’’ as such term is defined in sections 4(c)(3)(A) through (J) of the Act, ‘‘eligible contract participants,’’ as such term is defined in section 1a(18)(A) of the Act and in Commission regulation 50 Id. at 29517; see also id. at 29493–94. id. at 29494. 51 See VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 1.3(m),52 or persons who are in the business of: (i) Generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system.53 Second, the Commission proposed that the agreements, contracts, or transactions that are covered by the SPP Proposed Order must be offered or sold pursuant to SPP’s Tariff, which has been approved or permitted to take effect by FERC.54 Third, the Commission proposed that neither SPP’s Tariff nor other governing documents may include any requirement that SPP notify a member prior to providing information to the Commission in response to a subpoena or other request for information or documentation.55 Finally, the Commission proposed that information-sharing arrangements that are satisfactory to the Commission between the Commission and FERC must remain in full force and effect.56 The Commission proposed that this condition also requires that SPP comply with the Commission’s requests on an as-needed basis for related transactional and positional market data.57 3. Additional Limitations In the SPP Proposed Order, the Commission expressly noted that the proposed exemption was based upon the representations made in the Exemption Application and in the supporting materials provided by SPP and its counsel, and that any material 52 Id. Consistent with the RTO–ISO Order, the Commission proposed to use its authority pursuant to CEA section 4(c)(3)(K) to include eligible contract participants as appropriate persons for the purposes of this SPP Final Order. See RTO–ISO Order at 19896, 19913; see also 7 U.S.C. 1a(18)(A) and 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. 53 80 FR at 29494. Consistent with the RTO–ISO Order, the Commission also proposed to use its authority pursuant to CEA section 4(c)(3)(K) to include persons who are in the business of: (i) Generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system. See RTO–ISO Order at 19899, 19913, 19914. 54 80 FR at 29494. 55 Id. 56 Id. The CFTC and FERC signed a Memorandum of Understanding (‘‘MOU’’) Regarding Information Sharing and Treatment of Proprietary Trading and Other Information on January 2, 2014 (‘‘CFTC– FERC Information Sharing MOU’’), which addresses the sharing of information in connection with market surveillance and investigations into potential market manipulation, fraud, or abuse. The MOU is available at http://www.cftc.gov/ucm/ groups/public/@newsroom/documents/file/ cftcfercismou2014.pdf. 57 80 FR at 29494. PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 change or omission in the facts and circumstances that alter the grounds for the SPP Proposed Order might require the Commission to reconsider its finding that the exemption contained therein is appropriate and/or in the public interest and consistent with the purposes of the CEA.58 The Commission highlighted several of SPP’s representations as being of particular importance, including: (1) The exemption sought by SPP relates to the transactions described in the SPP Proposed Order, which are primarily entered into by commercial participants that are in the business of generating, transmitting, and distributing electric energy; 59 (2) SPP was established for the purpose of providing affordable, reliable electric energy to consumers within its geographic region; 60 (3) the transactions described in the SPP Proposed Order are an essential means, designed by FERC as an integral part of its statutory responsibilities, to enable the reliable delivery of affordable electric energy; 61 (4) each of the transactions defined in the SPP Proposed Order taking place on SPP’s markets is monitored by both a market administrator (SPP) and an independent market monitor (‘‘SPP Market Monitor’’) responsible to FERC; 62 and (5) each transaction defined in the SPP Proposed Order is directly tied to the physical capabilities of SPP’s electric energy grid.63 In the SPP Proposed Order, the Commission explicitly reserved the authority to, in its discretion, revisit any of the terms of the relief provided by the SPP Proposed Order, including, but not limited to, making a determination that certain entities and transactions should be subject to the Commission’s jurisdiction.64 The Commission also explicitly reserved the authority to, in its discretion, suspend, terminate, or otherwise modify or restrict the exemption granted in the SPP Proposed Order.65 Finally, the Commission announced its intention to exclude from the exemptive relief its general antifraud and anti-manipulation authority, 58 See id.; see also id. at 29518. These limitations are consistent with the RTO–ISO Order. See RTO– ISO Order at 19914–15. 59 See 80 FR at 29494; see also Exemption Application at 17. 60 See 80 FR at 29494; see also Exemption Application at 2, 17. 61 See 80 FR at 29494; see also generally FERC Order No. 888; FERC Order No. 2000; 18 CFR 35.34(k)(2); Exemption Application at 17. 62 See 80 FR at 29494; see also Exemption Application at 17. 63 See 80 FR at 29494; see also Exemption Application at 12–15. 64 See 80 FR at 29518. 65 See id. E:\FR\FM\24OCN1.SGM 24OCN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices and scienter-based prohibitions, under the CEA over SPP and the transactions defined in the SPP Proposed Order, including sections 2(a)(1)(B), 4(d), 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 CEA and any implementing regulations promulgated thereunder including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.66 The Commission explained in the SPP Proposed Order that neither the proposed nor the final RTO–ISO Order discussed, referred to, or mentioned CEA section 22, which provides for private rights of action for damages against persons who violate the CEA, or persons who willfully aid, abet, counsel, induce, or procure the commission of a violation of the Act.67 The Commission explained that by enacting CEA section 22, Congress provided private rights of action as a means for addressing violations of the Act as an alternative or supplement to Commission enforcement action.68 The Commission observed that it would be highly unusual for the Commission to reserve to itself the power to pursue claims for fraud and manipulation—a power that includes the option of seeking restitution for persons who have sustained losses from such violations or a disgorgement of gains received in connection with such violations—while at the same time, without explanation, denying private rights of action and damages remedies for the same violations.69 The Commission stated that if it intended to take such a differentiated approach (i.e., to limit the rights of private persons to bring such claims while reserving to itself the right to bring the same claims), the RTO–ISO Order would have included a discussion or analysis of the reasons therefore.70 The Commission therefore stated that, in the Commission’s view, the RTO–ISO Order does not prevent private claims for fraud or manipulation under the CEA.71 The Commission further stated that this view would apply equally to the SPP Proposed Order.72 D. Aspire v. GDF Suez In February 2015, the United States District Court for the Southern District of Texas dismissed a private lawsuit on the ground that the CEA section 22 private right of action was not available to the plaintiffs under the RTO–ISO 66 See 67 Id. id. at 29515, 29516. at 29493. 68 Id. 69 Id. 70 Id. 71 Id. 72 Id. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 Order.73 The lawsuit alleged that certain electricity generators in ERCOT’s market manipulated the market price of electricity by, among other things, intentionally withholding electricity generation during times of tight supply.74 The suit further alleged that this conduct created artificial and unpredictable prices in the secondary futures markets.75 The claim thus alleged that defendants were manipulating contract prices in the derivatives commodities market in violation of the Act.76 The District Court dismissed the claim, finding that under the RTO–ISO Order, the private right of action in CEA section 22 was ‘‘unavailable to [p]laintiffs.’’ 77 In February 2016, the United States Court of Appeals for the Fifth Circuit affirmed the District Court’s ruling.78 E. RTO–ISO Order Proposed Amendment On May 9, 2016, the Commission issued a notice of proposed order and request for comment which proposed to amend the text of the RTO–ISO Order to explicitly provide that the RTO–ISO Order does not exempt the entities covered under the RTO–ISO Order from the private right of action found in section 22 of the CEA79 with respect to the Excepted Provisions.80 In the RTO–ISO Order Proposed Amendment, the Commission noted that, currently, Paragraph 1 of the RTO– ISO Order states that the Commission: Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-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 and antimanipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.81 73 Aspire Commodities, L.P. v. GDF Suez Energy N. Am., Inc., No. H–14–1111, 2015 WL 500482 (S.D. Tex. Feb. 3, 2015). 74 Id. at *1–*2. 75 Id. at *2. 76 See id. 77 Id. at *5. 78 See Aspire Commodities, L.P. v. GDF Suez Energy N. Am., Inc., No. 15–20125, 640 F. App’x 358 (5th Cir. Feb. 25, 2016). 79 7 U.S.C. 25. 80 81FR 30245. 81 81 FR at 30247; see also RTO–ISO Order at 19912. PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 73067 The RTO–ISO Order Proposed Amendment stated that, under the RTO–ISO Order, for those CEA requirements from which the RTOs and ISOs are exempt, there can be no claim under CEA section 22 with respect to those requirements.82 The Commission further stated RTO–ISO Order did not specifically note that the exemption contained therein did not apply to actions pursuant to CEA section 22 with respect to the Excepted Provisions.83 In light of the Aspire court ruling discussed above,84 in the RTO–ISO Order Proposed Amendment, the Commission proposed to amend the text of the RTO–ISO Order to clarify that the RTO–ISO Covered Entities are not exempt from the private right of action in CEA section 22 with respect to the Excepted Provisions. Specifically, the Commission proposed to amend Paragraph 1 of the RTO–ISO Order to read as follows (the additional language is italicized): Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-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 and antimanipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180. This exemption also does not apply to actions pursuant to CEA section 22 with respect to the foregoing enumerated provisions.85 The Commission proposed the foregoing amendment to the RTO–ISO Order in order to ensure clarity.86 In addition, the RTO–ISO Order Proposed Amendment gave the following additional reasons for proposing the amendment: (1) Amending the RTO–ISO Order to explicitly preserve the private right of action with respect to fraud and manipulation would not cause regulatory uncertainty or duplicative or inconsistent regulation; (2) conflicting judicial interpretations regarding the nature of the RTO–ISO Covered Transactions would not affect the jurisdiction of FERC or any relevant state regulatory authority; (3) the private 82 81 FR 30247. 83 Id. 84 See supra section II.D. FR 30248. The RTO–ISO Order Proposed Amendment did not alter any of the other terms or conditions of the RTO–ISO Order. 86 Id. 85 81 E:\FR\FM\24OCN1.SGM 24OCN1 73068 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices right of action in the CEA is instrumental in protecting the American public, deterring bad actors, and maintaining the credibility of the markets subject to the Commission’s jurisdiction; (4) the private right of action under CEA section 22 was established by Congress as an integral part of the CEA’s enforcement and remedial scheme; and (5) the Commission’s preservation of section 22 liability with respect to the Excepted Provisions is consistent with the Commission’s actions in prior 4(c) orders.87 III. Summary of Comments A. Overview of Comments The Commission requested public comments on both the SPP Proposed Order and the RTO–ISO Order Proposed Amendment. The public comment period on the SPP Proposed Order ended on June 22, 2015. The Commission received thirteen (13) comment letters on the SPP Proposed Order from twelve (12) commenters,88 the majority of which provided general support for the proposed exemption.89 The comment letters on the SPP Proposed Order addressed the following issues: preservation of the private right of action found in section 22 of the CEA; the Commission’s jurisdiction; and the use of the term ‘‘member’’ in the SPP 87 See id. at 30248–49. comment letters are available through the Commission’s Web site at: http:// comments.cftc.gov/PublicComments/ CommentList.aspx?id=1586. Comments addressing the SPP Proposed Order were received from: Aspire Commodities, LP (‘‘Aspire (1)’’); Association of Electric Companies of Texas, Inc. (‘‘AECT’’); Coalition of Physical Energy Companies (‘‘COPE’’); Staff of the Federal Energy Regulatory Commission (‘‘FERC Staff (1)’’); First Principles Economics, LLC (‘‘First Principles’’); GDF Suez Energy North America, Inc. (‘‘GSENA (1)’’); International Energy Credit Association (‘‘IECA (1)’’); Joint Trade Associations (collectively referring to the American Public Power Association, Edison Electric Institute, Electric Power Supply Association, and the National Rural Electric Cooperative Association); Public Utility Commission of Texas (‘‘PUCT (1)’’); RTO–ISO Commenters (collectively referring to PJM Interconnection, L.L.C., Electric Reliability Council of Texas, Inc., and the California Independent System Operator Corporation); SPP; and Texas Competitive Power Advocates (‘‘TCPA’’). COPE submitted an original comment letter on June 22, 2015 and submitted a second comment letter on June 23, 2015. The second comment letter, which was dated June 22, 2015, contained a correction to the version of COPE’s comment letter that was originally submitted, and therefore superseded COPE’s original comment letter. The corrected version of COPE’s comment letter is herein referred to as ‘‘COPE (1).’’ COPE submitted a third comment letter after the expiration of the comment period, on June 25, 2015. 89 See, e.g., Aspire at 1; AECT at 1; COPE (1) at 2; First Principles at 1; GSENA (1) at 2; IECA at 3; Joint Trade Associations at 2; PUCT (1) at 2; SPP at 1; and TCPA at 2. sradovich on DSK3GMQ082PROD with NOTICES 88 All VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 Proposed Order. In determining the scope and content of the SPP Final Order, the Commission has taken into account the issues raised by commenters. The public comment period on the RTO–ISO Order Proposed Amendment ended on June 15, 2016. The Commission received forty-eight (48) comment letters on the RTO–ISO Order Proposed Amendment from forty-six (46) commenters,90 all of which addressed the proposed preservation of the private right of action found in section 22 of the CEA. In determining the scope and content of the Amended RTO–ISO Order, and the scope and content of the portions of the SPP Final Order related to the private right of action, the Commission has taken into account the issues raised by commenters. 90 All comment letters are available through the Commission’s Web site at: http:// comments.cftc.gov/PublicComments/ CommentList.aspx?id=1697. Comments addressing the RTO–ISO Order Proposed Amendment were received from: AKCSC; American Electric Power Company, Inc. (‘‘AEP’’); American Gas Association (‘‘AGA’’); Arizona Electric Power Cooperative, Inc.; Aspire Commodities, LP (‘‘Aspire (2)’’) Basin Electric Power Cooperative (‘‘Basin’’); Better Markets; Catherine Corn; bilmem ne; Coalition of Physical Energy Companies (‘‘COPE (2)’’); Commercial Energy Working Group (‘‘CEWG’’); Delaware Division of the Public Advocate, Indiana Office of Utility Consumer Counselor, Maryland Office of People’s Counsel, Office of People’s Counsel for the District of Columbia, New Jersey Division of Rates Council, Pennsylvania Office of Consumer Advocate, Consumer Advocate Division of the Public Service Commission of West Virginia (‘‘PJM JCA’’); East Kentucky Power Cooperative, Inc.; East Texas Electric Cooperative, Inc.; Edison Electric Institute (‘‘EEI’’); Electric Power Supply Association (‘‘EPSA’’); Exelon Generation Company (‘‘Exelon’’); Staff of the Federal Energy Regulatory Commission Staff (‘‘FERC Staff (2)’’); GDF Suez Energy North America, Inc. (‘‘GSENA (2)’’); Golden Spread Electric Cooperative (‘‘Golden Spread’’); Hoosier Energy Rural Electric Cooperative, Inc.; International Energy Credit Association (‘‘IECA (2)’’); ISO/RTO Council (‘‘IRC’’); ITC Great Plains, LLC (‘‘ITC’’); Kansas City Power & Light Company (‘‘KCP&L’’); Large Public Power Council (‘‘LPPC’’); Minnkota Power Cooperative, Inc.; MISO Transmission Owners; Missouri Joint Municipal Electric Utility Commission (‘‘MJMEUC’’); National Association of Regulatory Utility Commissioners (‘‘NARUC’’); National Rural Electric Cooperative Association and American Public Power Association (collectively, the ‘‘NFP Electric Associations’’); North Carolina Electric Membership Corporation; Oklahoma Municipal Power Authority (‘‘OMPA’’); Old Dominion Electric Cooperative; Omaha Public Power District (‘‘OPPD’’); Prairie Power, Inc.; PSEG Companies (‘‘PSEG’’); Public Utility Commission of Texas (‘‘PUCT (2)’’); Raiden Commodities (‘‘Raiden’’); Southern Illinois Power Cooperative; Sunflower Electric Power Corporation; Tenaska Energy, Inc. (‘‘Tenaska’’); Texas Industrial Energy Consumers (‘‘TIEC’’); Westar Energy, Inc. (‘‘Westar’’); Western Farmers Electric Cooperative; and Xcel Energy Services Inc. (‘‘Xcel’’). Both Exelon and Golden Spread submitted two duplicate comments; any reference to either commenter below refers to the letter attachment on the Commission’s Web site at the above link. In addition, twelve electric cooperatives submitted substantively identical comment letters: Arizona Electric Power Cooperative, Inc., East Kentucky Power Cooperative, Inc., East Texas Electric Cooperative, Inc., Golden Spread Electric Cooperative, Inc., Hoosier Energy Rural Electric Cooperative, Inc., Minnkota Power Cooperative, Inc., North Carolina Electric Membership Corporation, Old Dominion Electric Cooperative, Prairie Power, Inc., Southern Illinois Power Cooperative, Sunflower Electric Power Corporation, and Western Farmers Electric Cooperative. These twelve commenters are collectively referred to in 1. Summary of Comments PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 B. Private Right of Action Under CEA Section 22 In response to the SPP Proposed Order, a number of commenters objected to the inclusion in the SPP Proposed Order of language proposing to preserve, in the RTO–ISO Order, private rights of action under CEA section 22 with respect to the Excepted Provisions, and these commenters asked that such language not be included in the SPP Final Order.91 Some commenters asserted that the Commission’s proposed clarification of the RTO–ISO Order would deprive the RTOs and ISOs of due process and the right to comment on this aspect of the RTO–ISO Order. The Joint Trade Associations, for example, argued that the Commission’s preservation of a private right of action under section 22 of the CEA in the proposed exemption would retroactively impose requirements that were not contemplated or discussed in prior proceedings.92 GSENA likewise stated that the Commission cannot retroactively alter the RTO–ISO Order ‘‘by simply reciting its belief or intent.’’ 93 COPE echoed this objection.94 A number of commenters asserted that the language regarding the preservation of private rights of action under CEA section 22 would amount to a retroactive alteration of the RTO–ISO Order, so the Commission should have provided notice to market participants and an opportunity to comment on the alteration.95 Also, commenters argued that the inclusion in the SPP Proposed Order of language stating that the intent of the RTO–ISO Order was to preserve such private rights of action would be the discussion that follows as the ‘‘Electric Cooperative Commenters,’’ and any citations to such commenters are to the letter of the Arizona Electric Power Cooperative. 91 See, e.g., Joint Trade Associations at 5; COPE (1) at 3, 5; GSENA (1) at 3; PUCT (1) at 3. 92 Joint Trade Associations at 5. 93 GSENA (1) at 3. 94 COPE (1) at 5 (‘‘[A] retroactive statement of agency intent’’ is not sufficient to change the plain meaning of the RTO–ISO Order). 95 Joint Trade Associations at 5–6; COPE (1) at 5; IECA (1) at 2; RTO–ISO Commenters at 3; PUCT (1) at 4. E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices sradovich on DSK3GMQ082PROD with NOTICES contrary to the plain meaning of the RTO–ISO Order.96 In addition, in response to the SPP Proposed Order, commenters asserted that allowing private rights of action could (1) create a regulatory conflict that would be inconsistent with Congress’ directive that the CFTC and FERC coordinate their actions to avoid conflicting or duplicative regulation; 97 (2) give rise to inconsistent rulings among the Commission, FERC, state regulatory agencies and federal district courts regarding the regulatory scheme for transactions in the RTO–ISO markets; 98 (3) adversely affect the ability of the Commission and FERC to determine under the CFTC–FERC jurisdictional MOU 99 how to exercise their respective authorities; 100 (4) result in inconsistent court decisions; 101 (5) be costly; 102 and (6) be inconsistent with other orders issued by the Commission pursuant to the authority in CEA section 4(c).103 Separately, in response to the SPP Proposed Order, FERC Staff raised concerns about the effect of allowing private rights of action under CEA section 22 on FERC’s regulatory authority, and requested that the Commission clarify that its action on SPP’s application does not limit or otherwise affect FERC’s authority.104 In light of the comments received with respect to the SPP Proposed Order, the Commission proposed an amendment to the RTO–ISO Order to address the private right of action issue directly and to solicit further comment from the public on that issue. As noted above, the Commission received comments in response to the RTO–ISO Order Proposed Amendment. Specifically, a number of commenters asserted that the private right of action is not necessary in the context of the RTO–ISO markets given the comprehensive regulatory scheme to which those markets are subject. For example, IRC asserted that the RTO–ISO markets are ‘‘comprehensively regulated’’ by FERC and PUCT, with substantial enforcement tools, resources, and experience.105 According to several commenters, FERC’s broad enforcement authority over the RTO–ISO markets, including the authority to conduct investigations, re-settle markets, grant refunds, order disgorgement, impose civil penalties, and refer cases to the Department of Justice for criminal prosecution, renders the private right of action unnecessary in such markets.106 In addition, FERC Staff noted that section 206 of the Federal Power Act (‘‘FPA’’) authorizes FERC to determine, either on its own motion or as a result of a complaint, that an existing rate or market feature is unjust and unreasonable, and to establish prospectively a just and reasonable rate.107 Similarly, PUCT argued that it has an established complaint process to accommodate claims of fraud and manipulation.108 More broadly, commenters asserted that both FERC and PUCT have sufficient processes in place for private parties to air their concerns.109 Commenters also noted that the RTO–ISO markets are subject to an additional layer of oversight by independent market monitors, which are tasked with tracking the behavior of RTO–ISO market participants and reporting suspicious behavior to FERC or PUCT.110 On the other hand, Aspire, Better Markets, and Raiden asserted that the private right of action protects market participants by deterring fraudulent or manipulative conduct in the RTO–ISO markets, and that private rights of action serve as a vital tool to augment the Commission’s limited resources.111 Aspire and Raiden further argued that market participants are in the best position to observe and take action with respect to market manipulation, and that they are properly incentivized to bring private claims to seek compensation for any damages suffered.112 In addition, several commenters argued that preserving the CEA section 22 private right of action in this context would result in regulatory and/or legal uncertainty. A number of commenters asserted that private rights of action 96 See, e.g., Joint Trade Associations at 5; COPE (1) at 3; PUCT (1) at 3–4. 97 Joint Trade Associations at 7; IECA at 3. 98 RTO–ISO Commenters at 5. 99 Memorandum of Understanding Between the Federal Energy Regulatory Commission and the Commodity Futures Trading Commission (‘‘CFTC– FERC Jurisdictional MOU’’), Jan. 2, 2014, available at http://www.cftc.gov/idc/groups/public/@ newsroom/documents/file/cftcfercjmou2014.pdf. 100 RTO–ISO Commenters at 5–6; 9–10. 101 Joint Trade Associations at 6; RTO–ISO Commenters at 8–9. 102 COPE (1) at 4; PUCT (1) at 6. 103 RTO–ISO Commenters at 6–7. 104 FERC Staff (1) at 2. 105 IRC at 5–6. The IRC also argued that a Commission order should not be amended, expanded, or withdrawn absent a change in the law or the facts underlying the order. Id. at 12. 106 See, e.g., EPSA at 4; GSENA (2) at 3; MISO Transmission Owners at 5; PSEG at 2. 107 FERC Staff (2) at 3. 108 PUCT (2) at 11. 109 See, e.g., AGA at 3; EPSA at 5; GSENA (2) at 3; PUCT (2) at 11. 110 See, e.g., EEI at 10; PJM JCA at 4; MISO Transmission Owners at 5–6; PUCT (2) at 11–12; Xcel at 2. 111 Aspire (2) at 2; Better Markets at 2–3; Raiden at 4. 112 Aspire (2) at 6; Raiden at 6. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 73069 could disrupt the regulatory framework in place over the RTO–ISO markets,113 undermine the efficiency and effectiveness of the RTO–ISO markets,114 interfere with FERC’s and PUCT’s ability to maintain the integrity and efficiency of the RTO–ISO markets,115 and interfere with FERC’s and PUCT’s ability to determine how the transactions in the RTO–ISO markets should be regulated so as to produce just and reasonable rates.116 Several commenters asserted that a judicial determination regarding the nature of the transactions in the RTO– ISO markets (i.e., whether a particular transaction is a swap) could affect FERC’s or PUCT’s jurisdiction over such transactions.117 In response to the Commission’s question regarding the effect of the CEA’s savings clause on such concerns, several commenters expressed the view that such clause is subject to differing interpretations, and as such, it is not clear how a court would interpret the interaction between the savings clause in CEA section 2(a)(1)(I) and the ‘‘exclusive jurisdiction’’ language in section 2(a)(1)(A).118 Better Markets and Aspire, on the other hand, argued that allowing private rights of action in the RTO–ISO markets would not blur the boundaries of the Commission’s and FERC’s jurisdiction over such markets, and that the savings clause in CEA section 2(a)(1)(I) would prevent any judicial interpretations regarding the nature of the transactions in the RTO–ISO markets from affecting FERC’s or PUCT’s jurisdiction over such transactions.119 Separately, FERC Staff requested that, if the Commission were to amend the RTO–ISO Order to provide a private right of action under the CEA in the RTO–ISO markets, the Commission reiterate in its final order that the Commission does not have exclusive jurisdiction over transactions covered by the RTO–ISO Order.120 Separately, a number of commenters argued that permitting private actions under CEA section 22 against RTO–ISO market participants could result in conflicting or inconsistent court decisions.121 In addition, commenters 113 See, e.g., Basin at 1; EEI at 8; ITC at 2; OMPA at 1; TIEC at 1–2. 114 Westar at 2. 115 EPSA at 8. 116 IRC at 8. 117 See, e.g., EEI at 7; IRC at 9; MISO Transmission Owners at 12. 118 See, e.g., MISO Transmission Owners at 12; PUCT at 11. 119 Better Markets at 3–4; Aspire at 7. 120 FERC Staff (2) at 4. 121 See, e.g., AGA at 3–4; PUCT (2) at 5. E:\FR\FM\24OCN1.SGM 24OCN1 73070 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices sradovich on DSK3GMQ082PROD with NOTICES claimed that allowing private rights of action in the RTO–ISO markets could provide an opportunity for private plaintiffs to collaterally attack market rules, tariffs, or filed rates that have been approved or permitted to take effect by the relevant regulator.122 Such a result, commenters argued, could make it difficult for market participants to rely on the established market rules, resulting in a chilling effect on otherwise appropriate market behavior, and could inject uncertainty and instability into the RTO–ISO markets.123 Several commenters also suggested that private rights of action could create an opportunity for courts to second-guess policy decisions made by FERC and PUCT,124 or for private litigants to force judicial revision of RTO–ISO market rules with which they disagree.125 Aspire and Better Markets argued, on the other hand, that the private right of action does not present any increased risk of inconsistent judicial decisions, as the Commission already has the authority to bring actions under the fraud and manipulation provisions that are reserved in the RTO–ISO Order.126 Furthermore, a number of commenters argued that allowing private rights of action in the RTO–ISO markets would be contrary to congressional intent. Several commenters pointed out that the FPA expressly prohibits private rights of action; thus, commenters argued that allowing CEA section 22 private actions in the RTO–ISO markets would be contrary to the express intent of Congress.127 Commenters also urged that allowing private rights of action would create a regulatory conflict that is inconsistent with Congress’ directive that the CFTC and FERC coordinate their actions to avoid conflicting or 122 See, e.g., AEP at 2; AGA at 3; COPE (2) at 6, 7; EPSA at 7; Exelon at 2; GSENA at 2; IRC at 10; MISO Transmission Owners at 7; OPPD at 5; PUCT (2) at 5; Tenaska at 2; Westar at 3. In response to the Commission’s request for comments regarding the filed rate doctrine, the IRC and PUCT noted that courts have identified several exceptions to the filed rate doctrine, so there is no guarantee that a federal judge would grant a motion to dismiss based on such doctrine. IRC at 11; PUCT (2) at 10–11; see also MISO Transmission Owners at 11–12. The IRC further argued that, to the extent the filed rate doctrine would bar the types of private claims brought under CEA section 22, such a fact would undercut the rationale for allowing such private claims. IRC at 11. 123 See, e.g., PUCT (2) at 5; MISO Transmission Owners at 7; COPE (2) at 7; EPSA at 7; GSENA (2) at 2–3; OMPA at 3; OPPD at 5; PSEG at 3; Tenaska at 2–3; TIEC at 3–4; Xcel at 3. 124 AGA at 4; TIEC at 3. 125 EEI at 10. 126 Aspire at 7; Better Markets at 3. 127 See, e.g., CEWG at 2; EEI at 8; Exelon at 2; IRC at 6; KCP&L at 7; MISO Transmission Owners at 9; IECA at 4; FERC Staff (2) at 2–3. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 duplicative regulation,128 and would adversely affect the ability of the Commission and FERC to determine under the CFTC–FERC Jurisdictional MOU 129 how to exercise their respective authorities.130 On the other hand, Better Markets argued that preserving the private right of action would not be contrary to congressional intent, since Congress specifically included a private right of action in the CEA.131 Several commenters also claimed that preserving the CEA section 22 private right of action would be inconsistent with prior Commission action. According to EEI, the RTO–ISO Order was consistent with previous orders issued by the Commission in that it did not contain any reference to or discussion of CEA section 22.132 EEI further pointed to a grant of temporary exemptive relief from provisions of the CEA added or amended by Title VII of the Dodd-Frank Act that referenced certain terms that the Commission had not yet defined.133 That order expressly stated that ‘‘[t]o the extent that the Final Order provides [4(c)] exemptive relief [from certain provisions of the CEA], such exemptive relief would, in effect, preclude a person from succeeding in a private right of action under CEA section 22(a) for violation of such provisions.’’ 134 Both the IRC and EEI noted that the Commission has only expressly preserved the CEA section 22 private right of action in two prior 4(c) orders, both of which were superseded by Congress.135 The IRC claimed that it is not unusual for the Commission to reserve its own authority to address fraud and manipulation without also reserving private litigants’ right to do so.136 COPE argued that there is no valid policy argument to require all orders issued under CEA section 4(c) to be the same.137 EPSA echoed this argument, noting that the Commission’s actions in prior 4(c) orders should not control its decision on the private right of action here.138 A number of commenters addressed the cost implications of allowing private rights of action in the RTO–ISO markets. For instance, several commenters argued that allowing private actions in 128 AGA at 3; CEWG at 5; FERC Staff (2) at 3. supra note 99. 130 OPPD at 2–3; FERC Staff (2) at 2. 131 Better Markets at 3. 132 EEI at 6. 133 Effective Date for Swap Regulation, 76 FR 42508, July 19, 2011. 134 EEI at 6–7. 135 EEI at 7 n.19; IRC at 12 n.32. 136 IRC at 12. 137 COPE (2) at 8. 138 EPSA at 11. 129 See PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 the RTO–ISO markets would be costly, and that costs will be passed onto electricity consumers.139 The Electric Cooperative Commenters noted that costs will arise due to private litigation whether or not a private plaintiff can prove that market manipulation occurred.140 In addition, COPE asserted that private litigants could be motivated in part by monetary gain, whereas FERC, PUCT, and the Commission are motivated by the public interest.141 A number of commenters further asserted that consumers will bear the indirect costs of increased private litigation in the RTO–ISO markets, claiming that such costs would include indirect costs due to (1) increased regulatory uncertainty; 142 (2) increased risk; 143 (3) decreased liquidity in RTO–ISO products that are used to hedge and manage risk as market participants limit or forego activity in the RTO–ISO markets; 144 and (4) court decisions forcing RTOs and ISOs to change their infrastructure.145 PUCT also argued that allowing private litigants to bring actions against participants in the RTO– ISO markets would increase the costs associated with operating those markets.146 On the other hand, Better Markets argued that if the private right of action were available, market participants would not incur any increased costs of compliance because they would already be on notice of, and complying with, the fraud and manipulation provisions in the CEA.147 Lastly, Xcel and GSENA argued that allowing private rights of action in the RTO–ISO markets would ultimately result in reduced investment in renewable and efficient energy.148 2. Commission Determination The Commission has determined, in the limited context of the RTO–ISO markets which are the subject of the Amended RTO–ISO Order and the SPP 139 See, e.g., AGA at 4; CEWG at 4; EPSA at 5– 6; Exelon at 3–4; IRC at 10; KCP&L at 4; MISO Transmission Owners at 9; MJMEUC at 3; NFP Electric Associations at 6; PUCT (2) at 5; and TIEC at 4. 140 Electric Cooperative Commenters at 3. The Electric Cooperative Commenters also requested that, if the Commission were to allow private rights of action under CEA section 22 in the RTO–ISO markets, such actions not be allowed (1) against commercial end-user-only entities, or (2) to challenge commercial-end-user-only hedging transactions. Id. 141 COPE (2) at 6; see also AEP at 2–3; EEI at 11; NFP Electric Associations at 5–6; Xcel at 3. 142 AEP at 2. 143 Exelon at 3–4. 144 Id. 145 EPSA at 6. 146 PUCT (2) at 5. 147 Better Markets at 3. 148 Xcel at 3–4; GSENA (2) at 4. E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices Final Order, to issue a complete exemption from the private right of action in CEA section 22, including with respect to claims based on fraud or manipulation. The Commission is persuaded by several factors raised by the commenters. Considering all of these factors together, rather than any of these factors alone, or any subset of these factors, the Commission concludes that in the limited context of activities within the RTO–ISO markets, there should be a complete exemption from private claims under CEA section 22. Initially, the Commission agrees that the unique nature of the RTO–ISO markets differentiates this issue from other contexts in which a private right of action is essential. The RTO–ISO markets are heavily regulated by FERC and PUCT, with whom the Commission shares jurisdiction. This regulation is ‘‘pervasive’’ and it includes rate monitoring, tariff approval, authorization of market rules and pricing mechanisms, and real-time oversight of markets.149 As part of an articulated regulatory structure, these markets are also subject to close surveillance not only by the regulators but also by independent market monitors.150 In addition, FERC and PUCT support their regulation of the electric power markets with an enforcement program that includes the authority to order civil penalties, disgorgement, and to resettle the market.151 Furthermore, the Commission will continue to police these markets for fraud, manipulation and other unfair trading activities and, as contemplated by Congress, it can and will cooperate with these fellow regulators to deter and prevent unlawful trading activities in the RTO–ISO markets. In the same vein, the Commission and FERC both have the authority to take enforcement action, and to seek restitution on behalf of injured market participants that fall in their jurisdiction.152 Moreover, the Commission is further persuaded to issue an express exemption from the private right of action in the context of the RTO–ISO markets because private rights of action 149 FERC Staff (2) at 1–3. FERC Staff (2) at 2; PJM JCA at 4; PUCT (2) at 11–12. 151 FERC Staff (2) at 2; EPSA at 3–4. 152 7 U.S.C. 13a–1(d)(3) (Commission authority to seek restitution); 16 U.S.C. 825h (describing FERC’s remedial authority under the FPA); Pub. Util. Comm’n of Cal. v. FERC, 462 F.3d 1027, 1047–48 (9th Cir. 2006) (holding that section 309 of the FPA authorizes FERC to order restitution for profits gained as a result of a statutory or tariff violation); see also Consol. Edison Co. of N.Y., Inc. v. FERC, 347 F.3d 964, 967 (D.C. Cir. 2003) (same). appear in tension with the intent of Congress in this context. In 2005, Congress amended the FPA to give FERC the authority to pursue manipulation of the electricity markets.153 At that time, Congress focused on whether there should be a private right of action for manipulation of these specific markets. Congress explicitly declined to grant such a right of action.154 This was a more particularized determination regarding the merits of private enforcement in these unique markets than the legislative judgment reflected in CEA section 22 that there should be a generally applicable private right of action for fraud and manipulation in the Commission’s jurisdictional markets. Finally, the Commission is persuaded that there is a potential for private rights of action regarding the entities and transactions in the RTO–ISO markets to interfere with FERC and PUCT oversight of these markets. Based on the totality of these factors, the Commission concludes that in the limited context of activities within these unique markets, there should be a complete exemption from private claims under CEA section 22. The Commission’s determination regarding the CEA section 22 private right of action does not in any way affect the Commission’s own authority to address fraudulent or manipulative conduct in these markets within the Commission’s jurisdiction And, in cooperation with electricity regulators, the Commission will remain vigilant in policing these markets for fraud, manipulation and other illegal activity. In addition, in light of the above, the Commission encourages market participants who observe potential fraud or manipulation in the markets subject to the Commission’s jurisdiction to bring their concerns to the Commission. The whistleblower provisions of the Commodity Exchange Act and Commission regulations continue to apply in this context and are available pursuant to their terms.155 C. Use of the Term ‘‘Member’’ in the SPP Proposed Order With respect to the Commission’s use of the term ‘‘member’’ in the SPP Proposed Order, the Joint Trade sradovich on DSK3GMQ082PROD with NOTICES 150 E.g., VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 153 E.g., FERC Staff (2) at 2–3 & n.2. 154 Id. 155 The Commission recognizes the arguments of Aspire, Raiden, and Better Markets regarding the fact that the existence of a private right of action would protect market participants by deterring fraudulent or manipulative conduct in the RTO– ISO markets. Aspire (2) at 2; Raiden at 4; Better Markets at 2–3. However, the Commission is of the view that, for all of the reasons stated in this section, such concerns are mitigated. PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 73071 Associations noted that the Commission used the term ‘‘member’’ throughout the SPP Proposed Order, and that while such term may have a defined meaning within the context of other Commissionregulated markets, such term is not defined for purposes of the SPP Proposed Order in the context of RTO and ISO markets.156 The Joint Trade Associations urged the Commission to clarify that the term ‘‘member,’’ as used in the context of RTO and ISO markets, refers to a market participant that is bound by the relevant tariff and that also meets the conditions to be considered an ‘‘appropriate person’’ that are set forth in the SPP Proposed Order.157 The Commission notes that this is consistent with its understanding of the term ‘‘member’’ in this context.158 IV. Section 4(c) Determinations A. Section 4(c) Analysis 1. Overview of CEA Section 4(c) a. Sections 4(c)(6)(A) and (B) As discussed above in section I., the Dodd-Frank Act amended CEA section 4(c) to add sections 4(c)(6)(A) and (B), which provide authority to exempt 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.159 Indeed, section 4(c)(6) provides that if the Commission determines that the exemption would be consistent with the public interest and the purposes of this Act, the 156 Joint Trade Associations at 8. 157 Id. 158 This is also intended to address the concerns raised in SPP’s comment letter with respect to the use of the terms ‘‘member’’ and ‘‘market participant.’’ SPP at 3–4. 159 The exemption language in section 4(c)(6) states that 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) of section 4(c), 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)). E:\FR\FM\24OCN1.SGM 24OCN1 73072 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices Commission shall issue such an exemption.160 However, any exemption considered under section 4(c)(6)(A) and/ or (B) must be done ‘‘in accordance with [CEA sections 4(c)(1) and (2)].’’ 161 b. Section 4(c)(1) As described above in section I., 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 an exemption from any provisions of the CEA except subparagraphs (C)(ii) and (D) of section 2(a)(1). sradovich on DSK3GMQ082PROD with NOTICES c. Discussion of Comments on Sections 4(c)(6) and 4(c)(1) The Commission noted in the RTO– ISO Order Proposed Amendment that, based on the difference in language between CEA sections 4(c)(6) and 4(c)(1), it is not clear that section 4(c)(6) provides the Commission with the authority to exempt from the section 22 private right of action. The Commission further noted that, while section 4(c)(1) authorizes the Commission to grant exemptions from the Act’s ‘‘requirements’’ or ‘‘from any other provision of this Act,’’ section 4(c)(6) authorizes the Commission to exempt from the Act’s ‘‘requirements’’ only.162 In response to this discussion, Aspire argued that section 4(c)(6), in authorizing exemptions from the CEA’s ‘‘requirements’’ only, does not authorize the Commission to grant an exemption from the section 22 private right of action, since the private right of action is not a ‘‘requirement’’ of the CEA.163 IRC argued, on the other hand, that the narrower language in section 4(c)(6) does not limit the scope of the exemptions that the Commission may grant under sections 4(c)(1) and 4(c)(2).164 As noted above in section IV.A.1.a., in granting an exemption under section 4(c)(6) of the CEA, the Commission must act ‘‘in accordance with’’ section 4(c)(1), which grants the Commission the discretionary authority to exempt from the Act’s ‘‘requirements’’ or ‘‘from any other provision of this Act’’ if it 160 7 U.S.C. 6(c)(6). section 4(c)(6) explicitly directs the Commission to consider any exemption proposed under 4(c)(6) in accordance with CEA sections 4(c)(1) and (2). 162 See 81 FR 30249. 163 See Aspire (2) at 4. 164 See IRC at 13. 161 CEA VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 makes certain findings.165 The policy basis for the Commission’s decision to grant an exemption from the CEA section 22 private right of action under section 4(c)(6) applies equally, in the context of the present issue, to a decision to take the same action pursuant to section 4(c)(1), and the Commission has made the findings required under that provision in sections III.B.2., IV.A.2., and IV.A.3. Accordingly, even if the Commission were limited under section 4(c)(6) from granting an exemption from the CEA section 22 private right of action in the present context, the Commission would and does, for the reasons discussed above in section III.B.2., in the alternative exercise its discretion to grant such an exemption pursuant to its authority in section 4(c)(1) of the Act. d. Section 4(c)(2) As set forth above in section I., 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 transaction will be entered into solely between appropriate persons; 166 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.167 e. Section 4(c)(3) As explained in section I. above, 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 SPP Final Order: (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.168 165 7 U.S.C. 6(c)(1). The Commission has also considered that CEA section 22 may in fact be interpreted to impose a ‘‘requirement.’’ Section 22 states that certain persons who violate the Act or Commission regulations ‘‘shall be liable for actual damages.’’ 7 U.S.C. 25(a). This could be construed as a ‘‘requirement’’ to compensate the victim. 166 See CEA section 4(c)(2)(B)(i) and the discussion of CEA section 4(c)(3) below. 167 See CEA section 4(c)(2)(B)(ii). 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). 168 CEA 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 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 2. CEA Section 4(c) Determinations— SPP Final Order a. Commission Jurisdiction Subject to the limitations set forth in the CEA, sections 4(c)(6)(A) and (B) of the Act grant the Commission the authority to exempt certain electric energy transactions provided that the Commission determines, among other things, that such exemption is consistent with the public interest and purposes of the CEA.169 The Commission received a comment from FERC in response to the SPP Proposed Order relating to the Commission’s interpretation of its jurisdiction pursuant to section 4(c)(6).170 FERC argued that the Commission should ‘‘interpret the [Dodd-Frank Act] as not applying to any contract or instrument traded in an RTO or ISO market pursuant to a FERC-accepted 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, 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. 169 See discussion regarding CEA section 4(c)(6) in section IV.A.1.a. supra. As noted above in section IV.A.1.c., to the extent that the Commission’s action on the private right of action issue, with respect to both the SPP Final Order and the Amended RTO–ISO Order, requires further authority under section 4(c)(1), the Commission can and does exercise its discretion to take such action pursuant to such authority. 170 FERC Staff (1) at 2. The Commission received the same comment from FERC Staff in response to the RTO–ISO Order Proposed Amendment. See FERC Staff (2) at 2. The Commission’s determination with respect to this comment applies to both the SPP Final Order and the Amended RTO–ISO Order. E:\FR\FM\24OCN1.SGM 24OCN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices approved tariff or rate schedule.’’ 171 Specifically, in its comment letter in response to the SPP Proposed Order, FERC maintained that RTO and ISO markets and transmission services are ‘‘tightly integrated’’ and ‘‘regulated to a greater extent than other commodity markets.’’ 172 FERC thus asserted that interpreting the Dodd-Frank Act to not apply to contracts or instruments traded in an RTO or ISO market pursuant to a FERC-accepted or approved tariff or rate schedule is ‘‘the most appropriate application of [the Dodd-Frank Act] to these circumstances.’’ 173 FERC further asserted that, while it does not take issue with the Commission’s retention of anti-manipulation authority in the SPP Proposed Order, FERC also ‘‘retains its anti-manipulation authority, as well as its regulatory and oversight responsibilities, with respect to RTO and ISO markets.’’ 174 FERC accordingly requested that the Commission ‘‘clarify that its action on SPP’s application, including any statements in this proceeding with respect to private claims for fraud or manipulation under the Commodity Exchange Act, do not limit or otherwise affect FERC’s authority.’’ 175 In response to FERC’s comment, the Commission notes that the interpretation of the Dodd-Frank Act proffered by FERC is contrary to the express language of that statute. The Dodd-Frank Act added a savings clause to the CEA that addresses the roles of the Commission, FERC, and state agencies as they relate to transactions traded pursuant to FERC- or stateapproved tariffs or rate schedules. As noted above in section I., section 2(a)(1)(I) of the Act states that nothing in the Act limits or affects the statutory authority of FERC and state regulatory authorities over agreements, contracts, or transactions entered into pursuant to a tariff or rate schedule approved by FERC or a state regulatory authority, and also preserves the Commission’s statutory authority over such agreements, contracts, or transactions. Moreover, while section 4(c)(6) of the CEA, added by the Dodd-Frank Act, empowers the Commission to exempt contracts, agreements, or transactions traded pursuant to a Tariff or rate schedule that has been approved or permitted to take effect by FERC or a state regulatory authority, it does not permit the Commission to automatically 171 FERC Staff (1) at 2; see also FERC Staff (2) at 172 FERC or mechanically apply the exemption. Instead, section 4(c)(6) mandates that the Commission initially determine that the exemption would be in the public interest and consistent with the purposes of the CEA, that the exemption would be applied only to agreements, contracts, or transactions that are entered into solely between appropriate persons, and that 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. The Commission further notes, for purposes of clarification and as requested by FERC, that nothing in the SPP Final Order (or in the Amended RTO–ISO Order) limits or otherwise affects FERC’s authority. b. 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 determines that the SPP Final Order 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 risks, discovering prices, or disseminating pricing information through trading in liquid, fair and financially secure trading facilities.176 Section 3(b) of the CEA identifies the purposes of the CEA as follows: (1) 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; and (2) 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.177 Consistent with the proposed determinations set forth in the SPP Proposed Order,178 the Commission finds that: (a) The SPP Covered Transactions have been, and are, subject to a long-standing regulatory framework for the offer and sale of the Transactions Staff (1) at 2. 2. 173 Id. 176 7 174 Id. 177 7 U.S.C. 5(a). U.S.C. 5(b). 178 See 80 FR at 29495–96. 175 Id. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 73073 established by FERC; and (b) the SPP Covered Transactions administered by SPP are part of, and inextricably linked to, the organized wholesale electric energy markets that are subject to FERC regulation and oversight. For example, FERC Order No. 2000 (which, along with FERC Order No. 888, encouraged the formation of RTOs and ISOs to operate the electronic transmission grid and to create organized wholesale electric energy markets) requires an RTO to demonstrate that it has four minimum characteristics: (1) Independence from any market participant; (2) a scope and regional configuration which enables the 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.179 In addition, SPP stated that an RTO must demonstrate to FERC that it performs certain self-regulatory and/or market monitoring functions.180 SPP also represented that it is ‘‘responsible for ensur[ing] the development and operation of market mechanisms to manage transmission congestion’’ 181 and for establishing ‘‘market mechanisms [that] 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.’’ 182 Furthermore, as explained by SPP and discussed in the SPP Proposed Order, the Commission notes that the SPP 179 See id. at 29495. id.; see also id. at 29495 n.81 (explaining that, according to SPP, SPP 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 (OpenAccess 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). See Exemption Application at 18. 181 See 80 FR at 29495–96; see also Exemption Application at 18. 182 See 80 FR at 29496; see also Exemption Application at 18–19; 18 CFR 35.34(k)(2). 180 See E:\FR\FM\24OCN1.SGM 24OCN1 73074 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices sradovich on DSK3GMQ082PROD with NOTICES Covered Transactions are entered into by commercial participants that are in the business of generating, transmitting, and distributing electric energy,183 and that SPP was established for the purpose of providing affordable, reliable electric energy to consumers within its geographic region.184 Additionally, the SPP Covered Transactions that take place on SPP’s markets are overseen by the SPP Market Monitor, required by FERC to identify manipulation of electric energy on SPP’s markets.185 Moreover, fundamental to the Commission’s ‘‘public interest’’ and ‘‘purposes of the [Act]’’ analysis is the fact that the SPP Covered Transactions are inextricably tied to SPP’s physical delivery of electric energy.186 Another important factor is that the SPP Final Order is explicitly limited to SPP Covered Transactions taking place on markets that are monitored by the SPP Market Monitor, SPP, or both, and FERC. In contrast, an exemption for 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 electric energy, or not limited to appropriate persons,187 is unlikely to be in the public interest or consistent with the purposes of the CEA, taking such transactions outside the scope of the SPP Final Order. Finally, the extent to which the SPP Final Order is consistent with the public interest and the purposes of the Act can, in major part, be assessed by the extent to which the Tariff and activities of SPP, and supervision by FERC, 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, ensuring the financial integrity of the SPP Covered 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. 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 183 See 80 FR at 29496; see also Exemption Application at 17. 184 See id. 185 See id. 186 See 80 FR at 29496; see also Exemption Application at 12–15, 17 (describing the SPP Covered Transactions and noting that each of them ‘‘is part of, and inextricably linked to, the organized wholesale electric energy markets that are subject to FERC’s regulation and oversight’’). 187 See appropriate persons discussion infra IV.A.2.d. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 Core Principles for SEFs. 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 and SEF Core Principle analyses, set forth in the SPP Proposed Order,188 into its consideration of the SPP Final Order’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 SPP complies with FERC’s credit reform policy.189 The Commission specifically requested comment on (a) whether it used the appropriate standard in making its section 4(c) determination, and (b) whether the SPP Proposed Order is consistent with the public interest and the purposes of the CEA. The Commission received no comments in response to these requests. The Commission therefore determines that it used the appropriate standard in making its public interest and purposes of the CEA determination. The Commission believes that the standards set forth in FERC regulation 35.47 appear to achieve goals similar to the regulatory objectives of the Commission’s DCO Core Principles.190 Moreover, as set forth in the Commission’s DCO Core Principle analysis in the SPP Proposed Order, the Commission determines that SPP’s policies and procedures appear to be consistent with, and to accomplish sufficiently for purposes of this SPP Final Order, the regulatory objectives of the DCO Core Principles in the context of the SPP Covered Transactions.191 Also, as set forth in the Commission’s SEF Core Principles analysis in the SPP Proposed Order, the Commission has determined that SPP’s policies and procedures appear to be consistent with, and to accomplish sufficiently for purposes of this SPP Final Order, the regulatory objectives of the SEF Core Principles in the context of the SPP Covered Transactions.192 The Commission further determines that, for the reasons set forth in this SPP Final Order, the requested exemptive relief is consistent with the public interest and the purposes of the CEA. 188 See 80 FR at 29499–515. section IV.B. infra; 80 FR at 29498–99. 190 Cf. RTO–ISO Order at 19900–01. 191 Cf. id. at 19901. 192 Cf. id. at 19902. 189 See PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 c. CEA Section 4(a) Should Not Apply to the Transactions or Entities Eligible for the Exemption CEA section 4(c)(2)(A) requires, in part, that the Commission determine that the SPP Covered Transactions described in the SPP Final Order 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. As set forth in the SPP Proposed Order, the Commission has examined the SPP Covered Transactions, SPP, and its markets using the CEA Core Principle requirements applicable to a DCO and to a SEF as a framework for its public interest and purposes of the CEA determination.193 As further support for this determination, the Commission also is relying on the public interest and the purposes of the Act analysis in subsection IV.A.2.b. above. In so doing, the Commission has determined that, due to the FERC regulatory scheme and the RTO market structure applicable to the SPP Covered Transactions, the linkage between the SPP Covered Transactions and that regulatory scheme, and the unique nature of the market participants that would be eligible to rely on the exemption,194 CEA section 4(a) should not apply to the SPP Covered Transactions under the SPP Final Order.195 d. Appropriate Persons Section 4(c)(2)(B)(i) of the CEA 196 requires that the Commission determine that the exemption is restricted to SPP Covered Transactions entered into solely between ‘‘appropriate persons,’’ as that term is defined in section 4(c)(3) of the Act.197 Section 4(c)(3) defines the term ‘‘appropriate person’’ to include: (1) any person that falls within one of the ten categories of persons delineated in sections 4(c)(3)(A) through (J) of the Act; or (2) such other persons that the Commission determines to be appropriate pursuant to the limited authority provided by section 4(c)(3)(K).198 The Commission may determine that persons that do not meet the requirements of sections 4(c)(3)(A) through (J) are ‘‘appropriate persons’’ for purposes of section 4(c) only if it determines that such persons are 193 See 80 FR at 29499–515. appropriate persons analysis, section IV.A.2.d. infra; see also 80 FR at 29496–97. 195 The Commission notes that such a determination would be consistent with a similar determination made in the RTO–ISO Order. See RTO–ISO Order at 19895. 196 7 U.S.C. 6(c)(2)(B)(i). 197 7 U.S.C. 6(c)(3). 198 Id.; see also supra note 168. 194 See E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices sradovich on DSK3GMQ082PROD with NOTICES ‘‘appropriate in light of their financial or other qualifications, or the applicability of appropriate regulatory protections.’’ 199 Consistent with the RTO–ISO Order, the Commission proposed to limit the exemption to transactions where all parties thereto are ‘‘appropriate persons,’’ as defined in sections 4(c)(3)(A) through (J) of the Act,200 ‘‘eligible contract participants,’’ as defined in section 1a(18)(A) of the Act 201 and in Commission regulation 1.3(m),202 or persons who are in the business of: (i) Generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system.203 The Commission did not receive any comments objecting to this proposed limitation. Therefore, pursuant to the authority set forth in section 4(c)(3)(K) of the CEA and consistent with the RTO–ISO Order, the Commission has determined that ‘‘eligible contract participants,’’ as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m), and ‘‘persons who are in the business of: (i) Generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system,’’ are appropriate persons for purposes of the SPP Final Order, in light of their financial or other qualifications. Accordingly, this limitation has been incorporated into the SPP Final Order unchanged. The Commission believes that this expansion, when combined with the ‘‘appropriate persons’’ definition delineated in sections 4(c)(3)(A) through (J) of the CEA, would appear to strike the appropriate balance because the exemption would apply only to those market participants that can demonstrate the financial wherewithal or the requisite business activities and congruent expertise to qualify as appropriate persons under section 4(c)(3)(K) of the CEA.204 The Commission has determined that ‘‘eligible contract participants,’’ as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m), are appropriate persons for purposes of the SPP Final Order in light of their financial or other qualifications, or the applicability of regulatory protections. 199 7 U.S.C. 6(c)(3)(K). U.S.C. 6(c)(3)(A)–(J). 201 7 U.S.C. 1a(18)(A). 202 17 CFR 1.3(m). 203 80 FR 29496–97. The Commission notes that the proposed limitation is consistent with the RTO– ISO Order. See RTO–ISO Order at 19913. 204 Cf. RTO–ISO Order at 19899. 200 7 VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 Moreover, the Commission is using the authority provided by section 4(c)(3)(K) of the CEA to determine that a ‘‘person who actively participates in the generation, transmission, or distribution of electric energy,’’ as defined within the SPP Final Order, is an appropriate person for purposes of the exemption provided therein.205 The SPP Final Order defines a ‘‘person who actively participates in the generation, transmission, or distribution of electric energy’’ as ‘‘a person that is in the business of: (1) Generating, transmitting, or distributing electric energy; or (2) providing electric energy services that are necessary to support the reliable operation of the transmission system.’’ The Commission has determined that the inclusion of transactions entered into by such persons is proper because such persons’ active participation in the physical markets provides them with the requisite ‘‘qualifications’’ necessary to be deemed an ‘‘appropriate person’’ under CEA section 4(c)(3)(K) for purposes of the SPP Final Order. e. Effect on the Commission’s or Any Contract Market’s Ability To Discharge Its Regulatory or Self-Regulatory Duties Under the CEA CEA section 4(c)(2)(B)(ii) requires the Commission to make a determination regarding whether exempting the SPP Covered Transactions will have a material adverse effect on the ability of the Commission or any contract markets to perform regulatory or self-regulatory duties.206 In making this determination, the Commission should consider such regulatory concerns as ‘‘market surveillance, financial integrity of participants, protection of customers, and trade practice enforcement.’’ 207 These considerations are similar to the purposes of the CEA as defined in section 3, initially addressed in the public interest and purposes of the CEA discussion. The Commission proposed to determine that the exemption would not have a material adverse effect on the Commission’s or any contract market’s ability to discharge its regulatory function.208 In the SPP Proposed Order, the Commission noted the following assertion by SPP as support for its determination: Under Section 4(d) of the Act, the Commission will retain authority to conduct investigations to determine whether SPP is in compliance with any exemption granted in 205 Cf. id. at 19897. U.S.C. 6(c)(2)(B)(ii). 207 See H.R. Rep. No. 102–978, 102d Cong. 2d Sess., 1992 U.S.C.C.A.N. 3179, 3211 (1992). 208 80 FR 29497–98. 206 7 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 73075 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. SPP will continue to retain records related to the Transactions, consistent with existing obligations under FERC 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 SPP’s 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 SPP or of a contract market will be affected by the Commission’s granting the requested exemptions.209 In addition, the Commission stated that the limitation in the SPP Proposed Order to SPP Covered Transactions between certain appropriate persons avoids potential issues regarding financial integrity and customer protection.210 Moreover, the Commission did not propose to exempt SPP from certain CEA provisions, including sections 2(a)(1)(B), 4(d), 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, 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.211 As such, the Commission proposed to expressly retain authority to pursue fraudulent or manipulative conduct.212 In addition, the Commission proposed that granting the SPP Proposed Order for the SPP Covered Transactions would not have a material adverse effect on the ability of any contract market to discharge its self-regulatory duties under the Act.213 Specifically, with respect to TCRs and Operating Reserve Transactions, the Commission found that the exemption would not have a material adverse effect on any contract market carrying out its self-regulatory function because these transactions did 209 Id. at 29497 (quoting Exemption Application at 22). 210 Id. 211 Id. 212 Id. Nor did SPP seek an exemption from these provisions. See id. at 29497 n.107; Exemption Application at 1. 213 80 FR at 29497. E:\FR\FM\24OCN1.SGM 24OCN1 sradovich on DSK3GMQ082PROD with NOTICES 73076 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices not appear to be used for price discovery or as settlement prices for other transactions in Commissionregulated markets.214 With respect to Energy Transactions, the Commission proposed that, while these transactions did have a relationship to Commissionregulated markets because they can serve as a source of settlement prices for other transactions within Commission jurisdiction, they should not pose regulatory burdens on a contract market because SPP has market monitoring systems in place to detect and deter manipulation that takes place on its markets.215 In addition, the Commission noted that, as a condition to the SPP Proposed Order, the Commission would be able to obtain data from FERC with respect to activity on SPP’s markets that may impact trading on Commissionregulated markets.216 Finally, the Commission noted that if the SPP Covered Transactions ever could be used in combination with trading activity or in a position in a designated contract market (‘‘DCM’’) contract to conduct market abuse, both the Commission and DCMs have sufficient independent authority over DCM market participants to monitor for such activity.217 While the Commission did not receive any comments on its proposed determination that the exemption would not have a material adverse effect on the Commission’s ability to discharge its regulatory duties, an important caveat should be made. With regard to the SEF Core Principle 3 analysis and general statements regarding the SPP Market Monitor’s ability to detect and deter manipulation, the Commission notes that such statements were not meant to be construed as a final and irrevocable approval of the integrity of reference prices derived from SPP’s markets. The Commission retains the authority to question and obtain additional information in a timely manner regarding the underlying prices to which TCRs and other electric energy contracts, which are subject to the Commission’s jurisdiction, settle. As previously discussed, the Commission maintains the responsibility of ensuring that exchange-traded and cleared financial electric energy contracts are constructed such that the settlement mechanism produces prices that accurately reflect the underlying supply and demand fundamentals of SPP’s markets and are not readily susceptible to manipulation. For this reason, as 214 Id. 215 Id.; see also id. at 29494, 29496. at 29497. 217 Id. at 29497–98. 216 Id. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 originally proposed, the Commission has conditioned the SPP Final Order upon access to related transactional and positional data from SPP’s markets.218 For the reasons set forth herein and in the SPP Proposed Order, the Commission determines that the exemption for the SPP Covered Transactions in this SPP Final Order would not have a material adverse effect on the Commission’s or any contract market’s ability to discharge its regulatory function. 3. CEA Section 4(c) Determinations— Amended RTO–ISO Order a. Consistent With the Public Interest and Purposes of the CEA As required by CEA section 4(c)(2)(A), as well as section 4(c)(6), the Commission previously determined that the exemption set forth in the RTO–ISO Order is consistent with the public interest and the purposes of the CEA.219 The amendment to the RTO–ISO Order 218 See section IV.B. infra. RTO–ISO Order at 19894–95, 19900–02. The Commission’s prior determination was based on a number of findings, including that (a) the RTO–ISO Covered Transactions have been, and are, subject to a long-standing, regulatory framework for the offer and sale of the Transactions established by FERC or PUCT; (b) the RTO–ISO Covered Transactions administered by the RTOs, ISOs, or ERCOT are part of, and inextricably linked to, the organized wholesale electric energy markets that are subject to FERC and PUCT regulation and oversight; (c) the RTO–ISO Covered Transactions are entered into primarily by commercial participants that are in the business of generating, transmitting, and distributing electric energy; (d) the Requesting Parties were established for the purpose of providing affordable, reliable electric energy to consumers within their geographic region; (e) the RTO–ISO Covered Transactions that take place on the Requesting Parties’ markets are overseen by Market Monitoring Units, required by FERC and PUCT to identify manipulation of electric energy on the RTO–ISO Covered Entities’ markets; (f) the RTO–ISO Covered Transactions are inextricably tied to the Requesting Parties’ physical delivery of electric energy; (g) the RTO–ISO Order is explicitly limited to RTO–ISO Covered Transactions taking place on markets that are monitored by either an independent Market Monitoring Unit, a market administrator (the RTO, ISO, or ERCOT), or both, and a government regulator (FERC or PUCT); (h) the standards set forth in FERC regulation 35.47 appear to achieve goals similar to the regulatory objectives of the Commission’s DCO Core Principles, and substantial compliance with such requirements was key to the Commission’s determination that the tariffs and activities of the Requesting Parties and supervision by FERC or PUCT are congruent with, and—in the context of the RTO–ISO Covered Transactions—sufficiently accomplish, the regulatory objectives of each DCO Core Principle; (i) the Requesting Parties’ policies and procedures appear to be consistent with, and to accomplish sufficiently for purposes of the RTO–ISO Order, the regulatory objectives of the DCO Core Principles in the context of the RTO–ISO Covered Transactions; and (j) the Requesting Parties’ policies and procedures appear to be consistent with, and to accomplish sufficiently for purposes of the RTO– ISO Order, the regulatory objectives of the SEF Core Principles in the context of the RTO–ISO Covered Transactions. Id. 219 See PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 does not alter the Commission’s prior determinations with respect to the public interest and purposes of the CEA, and the Commission incorporates such prior determinations into the Amended RTO–ISO Order. In addition, the Commission determines that the current amendment to the RTO–ISO Order, which explicitly provides that the exemption set forth therein extends to private actions under CEA section 22, is in the public interest for all of the reasons stated in section III.B.2.220 b. Other Section 4(c) Determinations In the RTO–ISO Order, the Commission made a number of other determinations under CEA section 4(c), including: • The Dodd-Frank Act applies to contracts and instruments traded in RTO or ISO markets pursuant to a FERC- or state-approved tariff or rate schedule, subject to the Commission’s authority under CEA section 4(c)(6) to exempt contracts, agreements, or transactions traded pursuant to such a tariff or rate schedule upon determining that the exemption would be in the public interest and consistent with the purposes of the CEA; that the exemption would be applied only to agreements, contracts, or transactions that are entered into solely between appropriate persons; and that 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.221 • Due to the FERC or PUCT regulatory scheme and the RTO or ISO market structure already applicable to the SPP Covered Transactions, the linkage between the SPP Covered Transactions and those regulatory schemes, and the unique nature of the market participants that are eligible to rely on the exemption in the RTO–ISO Order, CEA section 4(a) should not 220 The Commission received one comment regarding the public interest findings in the RTO– ISO Order Proposed Amendment. EPSA argued that in the RTO–ISO Order Proposed Amendment, the Commission proposed to ‘‘automatically or mechanically bypass the required analysis’’ under CEA sections 4(c)(1) and 4(c)(2), and that the Commission’s proposed public interest findings with respect the proposed amendment to explicitly preserve the CEA section 22 private right of action were insufficient. EPSA at 7–8. The Commission is of the view that the public interest analysis in the RTO–ISO Order Proposed Amendment, and that set forth herein, is neither automatic nor mechanical, and that such analyses meet the requirements of sections 4(c)(1) and 4(c)(2). Moreover, given the Commission’s determination with respect to the private right of action issue, the Commission is of the view that EPSA’s concern is now moot. 221 See RTO–ISO Order at 19893–94; see also CEA section 4(c)(6). E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices apply to the SPP Covered Transactions under the RTO–ISO Order.222 • Eligible contract participants, as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m), are appropriate persons for purposes of the RTO–ISO Order in light of their financial or other qualifications, or the applicability of regulatory protections.223 In addition, a ‘‘person who actively participates in the generation, transmission, or distribution of electric energy,’’ as defined within the RTO–ISO Order, is an appropriate person for purposes of the exemption provided therein.224 • The exemption in the RTO–ISO Order for the SPP Covered Transactions would not have a material adverse effect on the Commission’s or any contract market’s ability to discharge its regulatory function.225 The amendment to the RTO–ISO Order does not alter the Commission’s determination with respect to any of the above 4(c) determinations. Therefore, the Commission hereby incorporates such prior 4(c) determinations, and the findings on which such determinations are based, into the Amended RTO–ISO Order. All transactions that were permitted pursuant to the exemption set forth in the RTO–ISO Order are still permitted under the Amended RTO–ISO Order. The only change made by the amendment to the RTO–ISO Order is that the Amended RTO–ISO Order provides explicitly that the exemption set forth therein also extends to actions pursuant to CEA section 22. sradovich on DSK3GMQ082PROD with NOTICES B. Additional Limitations and Provisions—SPP Final Order As described in detail above,226 the Commission expressly noted in the SPP Proposed Order 227 that the proposed exemption was based upon the representations made in the Exemption Application and in the supporting materials provided by SPP and its counsel,228 and that any material change 222 See RTO–ISO Order at 19895; see also CEA section 4(c)(2)(A). 223 See RTO–ISO Order at 19896; see also CEA section 4(c)(2)(B)(i). 224 See RTO–ISO Order at 19897; see also CEA section 4(c)(2)(B)(i). 225 See RTO–ISO Order at 19903–04; see also CEA section 4(c)(2)(B)(ii). 226 See section II.C.3. supra. 227 See 80 FR at 29494, 29518. 228 As part of its Exemption Application, SPP provided the Commission with a legal opinion that provided the Commission with assurance that the netting arrangements contained in the approach selected by SPP to satisfy the obligations contained in FERC regulation 35.47(d) will, in fact, provide SPP 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. See Memorandum regarding VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 or omission in the facts and circumstances that alter the grounds for the SPP Proposed Order might require the Commission to reconsider its finding that the exemption contained therein is appropriate and/or in the public interest and consistent with the purposes of the CEA. The Commission did not receive any comments on this proposal. As such, the SPP Final Order is based on the representations made by SPP and its counsel in the Exemption Application, the supplemental information, and supporting materials filed with the Commission. In particular, the Commission notes that the following representations are of particular importance and integral to the Commission’s decision to grant the exemption set forth in this SPP Final Order: (1) The exemption requested by SPP relates to SPP Covered Transactions that are primarily entered into by commercial participants that are in the business of generating, transmitting and distributing electric energy; 229 (2) SPP was established for the purpose of providing affordable, reliable electric energy to consumers within its geographic region; 230 (3) the SPP Covered Transactions are an essential means, designed by FERC as an integral part of its statutory responsibilities, to enable the reliable delivery of affordable electric energy; 231 (4) each of the SPP Covered Transactions taking place on SPP’s markets is monitored by both a market administrator (SPP) and the SPP Market Monitor; 232 and (5) each SPP Covered Transaction is directly tied to the physical capabilities of SPP’s electric energy grid.233 Therefore, the Commission affirms that any material change or omission in the facts and circumstances that alter the grounds for the SPP Final Order might require the Commission to reconsider its finding that the exemption contained therein is appropriate and consistent with the public interest and purposes of the CEA. The Commission reiterates that the SPP Covered Transactions must be tied to the allocation of the physical capabilities of an electric energy transmission grid in order to be suitable for exemption because such activity Enforceability of Netting Practices from Hunton & Williams LLP to SPP, dated December 2, 2013. 229 See 80 FR at 29494; see also Exemption Application at 17. 230 See 80 FR at 29494; see also Exemption Application at 2, 17. 231 See 80 FR at 29494; see also generally FERC Order No. 888; FERC Order No. 2000; 18 CFR 35.34(k)(2); see also Exemption Application at 17. 232 See 80 FR at 29494; see also Exemption Application at 17. 233 See 80 FR at 29494; see also Exemption Application at 12–15. PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 73077 would be inextricably linked to the physical delivery of electric energy. In addition, the Commission proposed to exclude from the exemptive relief its general anti-fraud and antimanipulation, and scienter-based prohibitions over SPP and the SPP Covered Transactions under the CEA, including sections 2(a)(1)(B), 4(d), 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 CEA and any implementing regulations promulgated thereunder including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.234 The Commission received no comments regarding this reservation of authority. The Commission believes it prudent to reserve in the SPP Final Order its anti-fraud and anti-manipulation authority, as well as those scienterbased prohibitions in the specified provisions of the Act and Commission regulations (without finding it necessary in this particular context to preserve other enforcement authority). The Commission notes that reservation of enforcement authority is standard practice with exemptive orders issued pursuant to CEA section 4(c). The Commission also believes it is important to highlight that, as with all exemptions issued pursuant to CEA section 4(c), the exemption shall not affect the authority of the Commission under any other provision of the CEA to conduct investigations in order to determine compliance with the requirements or conditions of such exemption or to take enforcement action for any violation of any provision of the CEA or any rule, regulation or order thereunder caused by the failure to comply with or satisfy such conditions or requirements.235 In the SPP Proposed Order, the Commission also proposed to make a number of additional determinations, including but not limited to the following: • The Commission proposed to determine that the requirements set forth in FERC regulation 35.47 appear to achieve goals similar to the regulatory objectives of the Commission’s DCO Core Principles, and substantial compliance with such requirements is key to the Commission’s determination that the Tariff and activities of SPP and supervision by FERC are congruent with, and—in the context of the SPP Covered Transactions—sufficiently accomplish, the regulatory objectives of each DCO Core Principle.236 • The Commission proposed to determine that, on the basis of SPP’s 234 See 80 FR at 29515, 29516. 7 U.S.C. 6(d). 236 80 FR 29498–99. 235 See E:\FR\FM\24OCN1.SGM 24OCN1 sradovich on DSK3GMQ082PROD with NOTICES 73078 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices representations and consistent with the RTO–ISO Order, it is not necessary, when considering the requisite public interest and purposes of the CEA determinations, to impose position limits on SPP’s Integrated Marketplace.237 • The Commission proposed to determine that SPP’s practices or Tariff and supervision by FERC are congruent with, and, in the context of the SPP Covered Transactions, sufficiently accomplish, the regulatory objectives of the Core Principles set forth in the CEA for DCOs.238 • The Commission proposed to determine that SPP’s practices or Tariff and supervision by FERC are congruent with, and, in the context of the SPP Covered Transactions, sufficiently accomplish, the regulatory objectives of the Core Principles set forth in the CEA for SEFs.239 In the SPP Proposed Order, the Commission proposed to limit the scope of the exemption to certain specified transactions: • The SPP Proposed Order would exempt Transmission Congestion Rights, Energy Transactions, and Operating Reserve Transactions from most requirements of the CEA, and the SPP Proposed Order would not extend the exemption beyond these three specifically-defined transactions.240 The SPP Proposed Order would include any modifications to existing transactions that do not alter the SPP Covered Transactions’ characteristics in a way that would cause them to fall outside the definitions of the SPP Covered Transactions, and that are offered by SPP pursuant to a FERC-approved Tariff. • The SPP Proposed Order would exempt products that qualify as one of the three defined SPP Covered Transactions, regardless of whether or not SPP offers the particular product at the present time.241 In the SPP Proposed Order, the Commission proposed to condition the exemption on the following: • The SPP Proposed Order would be conditioned upon requiring (1) that an information sharing arrangement acceptable to the Commission be executed between the Commission and FERC and continue to be in effect, and (2) ‘‘SPP’s compliance with the Commission’s requests through FERC to share, on an as-needed basis and in connection with an inquiry consistent 237 Id. at 29511. at 29499–508. 239 Id. at 29508–15. 240 Id. at 29515. 241 Id. at 29516. with the CEA and Commission regulations, positional and transactional data within SPP’s possession for products in SPP’s markets that are related to markets that are subject to the Commission’s jurisdiction, including any pertinent information concerning such data.’’242 • The SPP Proposed Order would be conditioned upon requiring that ‘‘[n]either the Tariff nor any other governing documents of SPP shall include any requirement that SPP notify its members prior to providing information to the Commission in response to a subpoena or other request for information or documentation.’’243 The Commission received no comments on the above proposed determinations, limitations, and conditions, and hereby incorporates such determinations, limitations, and conditions into the SPP Final Order. As noted in the SPP Proposed Order and earlier in this SPP Final Order, the SPP Covered Transactions are inextricably tied to SPP’s physical delivery of electric energy, and they take place on markets that are monitored by the SPP Market Monitor, SPP, or both, and FERC. Specifically, with respect to TCRs and Operating Reserve Transactions, the Commission found that the exemption would not have a material adverse effect on any contract market carrying out its self-regulatory function because these transactions did not appear to be used for price discovery or as settlement prices for other transactions in Commission-regulated markets. With respect to Energy Transactions, while Energy Transactions did have a relationship to Commission-regulated markets because they can serve as a source of settlement prices for other transactions within Commission jurisdiction, they should not pose regulatory burdens on a contract market because SPP has market monitoring systems in place to detect and deter manipulation that takes place on its markets. Furthermore, conditioning the exemption provided in the SPP Final Order upon the Commission’s ability to obtain related transactional and positional data from SPP, and SPP’s compliance with such requests by sharing the requested information, is meant to enable the Commission to continue discharging its regulatory duties under the Act as set forth in CEA section 3.244 238 Id. VerDate Sep<11>2014 17:42 Oct 21, 2016 242 Id. at 29517. 243 Id. 244 7 Jkt 241001 PO 00000 U.S.C. 5. Frm 00023 Fmt 4703 Sfmt 4703 V. Related Matters A. Regulatory Flexibility Act 1. Introduction The Regulatory Flexibility Act (‘‘RFA’’) requires that the Commission consider whether the exemptions set forth in the SPP Final Order and in the Amended RTO–ISO Order will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis respecting the impact.245 2. SPP Final Order In the SPP Proposed Order, the Commission found that SPP should not be considered a small entity based on the central role it plays in the operation of the electronic transmission grid and the creation of organized wholesale electric markets that are subject to FERC regulatory oversight,246 analogous to functions performed by DCMs and DCOs, which the Commission has previously determined not to be ‘‘small entities.’’247 The SPP Proposed Order included entities that qualify as (1) ‘‘appropriate persons’’ pursuant to CEA sections 4(c)(3)(A) through (J), (2) ‘‘eligible contract participants’’ (‘‘ECPs’’), as defined in CEA section 1a(18)(A) and Commission regulation 1.3 (m), or (3) persons who are in the business of: (i) Generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system.248 The Commission previously determined that ECPs are not ‘‘small entities’’ for purposes of the RFA.249 As a result, the 245 5 U.S.C. 601 et seq. FR at 29518. See Enhancement of Electricity Market Surveillance and Analysis Through Ongoing Electronic Delivery of Data From Regional Transmission Organizations and Independent System Operators, 77 FR 26674, 26685–86, May 7, 2012 (RFA analysis as conducted by FERC regarding six RTOs and ISOs, including SPP). Commission staff also performed an independent RFA analysis based on Subsector 221 of sector 22 (utilities companies) of the Small Business Administration (‘‘SBA’’), which defines any small utility corporation as one that does not have more than 250 employees. See 13 CFR 121.201 (1–1–15 Edition). Staff concludes that SPP is not a small entity, since SPP represents that it employs more than 500 employees. See Exemption Application Attachments at 8. 247 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, 18618–19, Apr. 30, 1982 (DCMs). 248 See 80 FR at 29517. Under CEA section 2(e), only ECPs are permitted to participate in a swap, subject to the end-user clearing exception. 249 See Opting Out of Segregation, 66 FR 20740, 20743, Apr. 25, 2001. 246 80 E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices sradovich on DSK3GMQ082PROD with NOTICES Commission certified that the SPP Proposed Order would not have a significant economic impact on a substantial number of small entities for purposes of the RFA, and requested written comments regarding this certification.250 The Commission did not receive any comments with respect to its RFA analysis in the SPP Proposed Order. The relief provided in the SPP Final Order to a person who actively participates in the generation, transmission, or distribution of electric energy may impact some small entities to the extent they may fall within standards established by the SBA regulations defining any small utility corporation as one that does not have more than 250 employees.251 However, based on the Commission’s existing information about SPP’s markets, its market participants consist mostly of entities exceeding the thresholds defining ‘‘small entities’’ set out above. The Commission is of the view that the SPP Final Order alleviates the economic impact that the exempt entities, including any small entities that may opt to take advantage of the exemption set forth in the SPP Final Order, otherwise would be subjected to by exempting certain of their transactions from the application of substantive regulatory compliance requirements of the CEA and Commission regulations thereunder. Accordingly, the Commission is of the view that the SPP Final Order does not have a significant economic impact on a substantial number of small entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the exemption set forth in the SPP Final Order would not have a significant economic impact on a substantial number of small entities. 3. Amended RTO–ISO Order With respect to the Amended RTO– ISO Order, the Commission previously determined that the RTO–ISO Order would not have a significant economic impact on a substantial number of small entities.252 The Amended RTO–ISO Order does not substantively change the scope of the exemption set forth in the RTO–ISO Order. Furthermore, the RFA analysis in the RTO–ISO Order is still valid. Specifically, the RTOs and ISOs covered by the Amended RTO–ISO Order should not be considered small entities based on the central role they play in the operation of the electronic 250 80 FR at 29518. note 246 supra (citing 13 CFR 121.201). 252 See RTO–ISO Order at 19906–07. 251 See VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 transmission grid and the creation of organized wholesale electric markets that are subject to FERC and PUCT regulatory oversight,253 analogous to functions performed by DCMs and DCOs, which, as noted above, the Commission has previously determined not to be ‘‘small entities.’’ 254 In addition, the Amended RTO–ISO Order includes entities that qualify as (1) ‘‘appropriate persons’’ pursuant to CEA sections 4(c)(3)(A) through (J), (2) ECPs, as defined in CEA section 1a(18)(A) and Commission regulation 1.3 (m), or (3) persons who are in the business of: (i) Generating, transmitting, or distributing electric energy, or (ii) providing electric energy services that are necessary to support the reliable operation of the transmission system. As noted above, the Commission has previously determined that ECPs are not ‘‘small entities’’ for purposes of the RFA.255 The Commission is of the view that, based on the Commission’s existing information about the RTOs’ and ISOs’ markets, their market participants consist mostly of entities exceeding the thresholds defining ‘‘small entities.’’ 256 Also, the Amended RTO–ISO Order would continue to alleviate the economic impact that the exempt entities, including any small entities that may opt to take advantage of the exemption set forth in the RTO–ISO Order, otherwise would be subjected to by continuing to exempt certain of their transactions from the application of substantive regulatory compliance requirements of the CEA and Commission regulations thereunder. Accordingly, the Commission does not expect the Amended RTO–ISO Order to have a significant economic impact on a substantial number of small entities. Therefore, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the exemption set forth in the Amended RTO–ISO Order would not have a significant economic impact on a substantial number of small entities.257 253 See note 246 supra; see also RTO–ISO Order at 19906. 254 See note 247 supra; see also RTO–ISO Order at 19906. 255 See note 249 supra; see also RTO–ISO Order at 19906. 256 See note 246 supra (citing 13 CFR 121.201). The threshold established by the SBA regulations define any small utility corporation as one that does not have more than 250 employees; see also RTO– ISO Order at 19907. 257 The Commission received one comment with respect to the RFA analysis in the RTO–ISO Order Proposed Amendment. The NFP Electric Associations argued that the RFA analysis in the RTO–ISO Order Proposed Amendment was ‘‘abbreviated and conclusory,’’ that the members of the NFP Electric Associations are ‘‘small entities’’ for purposes of the RFA, and that the amendment PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 73079 B. Paperwork Reduction Act 1. Introduction The purposes of the Paperwork Reduction Act of 1995 (‘‘PRA’’) 258 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 and 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.’’ 259 2. SPP Final Order The SPP Proposed Order provided that the exemption would be expressly conditioned upon information sharing arrangements between the Commission and FERC that are acceptable to the Commission continuing to be in effect.260 The Commission determined that the PRA would not apply because the SPP Proposed Order did 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’’). The Commission did not receive any comments regarding this determination. The SPP Final Order thus incorporates the information sharing condition unchanged from the SPP Proposed Order, and this condition is consistent with the RTO–ISO Order. 3. Amended RTO–ISO Order With respect to the Amended RTO– ISO Order, the Commission previously determined that the RTO–ISO Order did not impose any new recordkeeping or information collection requirements, or other collections of information on ten or more persons that require OMB proposed in the RTO–ISO Order Proposed Amendment would have a negative impact on such entities. See NFP Electric Associations at 8. The Commission is of the view that the RFA analysis in the RTO–ISO Order Proposed Amendment, and that set forth herein, is sufficiently detailed and not conclusory. Moreover, given the Commission’s determination with respect to the private right of action issue, the Commission is of the view that the NFP Electric Associations’ concern is now moot. 258 44 U.S.C. 3501 et seq. 259 44 U.S.C. 3502(3). 260 80 FR at 29517. E:\FR\FM\24OCN1.SGM 24OCN1 73080 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices approval.261 The Amended RTO–ISO Order does not impose any recordkeeping or information collection requirements, or other collections of information on ten or more persons that require OMB approval. C. Cost-Benefit Considerations 1. Introduction Section 15(a) of the CEA262 requires the Commission to ‘‘consider the costs and benefits’’ of its actions before promulgating a regulation under the CEA or issuing certain orders. In issuing the SPP Final Order and the Amended RTO–ISO Order, the Commission is required by CEA sections 4(c)(6) and 4(c)(1) to ensure that they are 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. 1. SPP Final Order sradovich on DSK3GMQ082PROD with NOTICES a. Background On October 17, 2013, SPP filed an Exemption Application 263 with the Commission requesting that the Commission exercise its authority under section 4(c)(6) of the CEA and section 712(f) of the Dodd-Frank Act to exempt certain contracts, agreements, and transactions for the purchase or sale of specified electric energy products, that are offered pursuant to a FERCapproved Tariff, from most provisions of the Act.264 SPP asserted that each of the transactions for which an exemption is requested is (a) subject to a longstanding, comprehensive regulatory framework for the offer and sale of such transactions established by FERC, and (b) part of, and inextricably linked to, the organized wholesale electric energy markets that are subject to regulation and oversight by FERC. SPP expressly excluded from the Exemption 261 See RTO–ISO Order at 19907–08. U.S.C. 19(a). 263 As noted above, SPP filed an amended Exemption Application on August 1, 2014, and citations to ‘‘Exemption Application’’ herein are to the amended Exemption Application. See note 31 supra. 264 See 80 FR at 29491; see also Exemption Application at 1–2, 11–15. 262 7 VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 Application any request for relief from the Commission’s general anti-fraud and anti-manipulation authority, and scienter-based prohibitions, under sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4 and part 180,265 and such provisions explicitly have been carved out of the SPP Final Order.266 b. SPP Proposed Order and Request for Comment on the Commission’s Proposed Consideration of Costs and Benefits Upon consideration of the Exemption Application, the Commission issued the SPP Proposed Order, which proposed to exempt Transmission Congestion Rights, Energy Transactions, and Operating Reserve Transactions pursuant to section 4(c)(6) of the CEA.267 The Commission proposed to limit the exemption set forth in the SPP Proposed Order to persons who are (1) ‘‘appropriate persons,’’ as defined in CEA sections 4(c)(3)(A) through (J); (2) ‘‘eligible contract participants,’’ as defined in CEA section 1a(18)(A) and Commission regulation 1.3(m); or (3) persons who actively participate in the generation, transmission, or distribution of electric energy.268 Furthermore, under the SPP Proposed Order, the agreement, contract, or transaction must be offered or sold pursuant to SPP’s Tariff, which has been approved by FERC.269 The exemption in the SPP Proposed Order would extend to any person or class of persons offering, entering into, rendering advice, or rendering other services with respect to the SPP Covered Transactions.270 In the SPP Proposed Order, the Commission clarified that financial transactions that are not tied to the allocation of the physical capabilities of an electric energy transmission grid would not be suitable for exemption, and were therefore not covered by the SPP Proposed Order because such activity would not be inextricably linked to the physical delivery of electric energy.271 The SPP Proposed Order expressly requested public comment on the 265 See 80 FR at 29491; see also Exemption Application at 1. 266 See paragraph 1 of the SPP Final Order. 267 See 80 FR at 29516–18; see also section II.C.1. supra. 268 See 80 FR at 29517. 269 See id. 270 See id. at 29516. 271 See id. at 29494. PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 Commission’s proposed cost-benefit considerations, including with respect to reasonable alternatives; the magnitude of specific costs and benefits, and data or other information to estimate a dollar valuation; and any impact on the public interest factors specified in CEA section 15(a).272 The Commission did not receive any comments on its proposed cost-benefit considerations as set forth in the SPP Proposed Order. c. Summary of the SPP Final Order As discussed above, the SPP Final Order makes certain determinations with respect to the scope of relief, including the scope of the SPP Covered Transactions.273 The Commission determined that any products that are offered by SPP, presently or in the future, pursuant to a Tariff that has been approved by FERC and that fall within the provided definitions of the SPP Covered Transactions, as well as any modifications to existing products that are offered by SPP pursuant to a Tariff that has been approved by FERC and that do not alter the characteristics of the SPP Covered Transactions in a way that would cause such products to fall outside these definitions, are intended to be included within the SPP Final Order.274 In this way, the Commission’s SPP Final Order provides beneficial flexibility and efficiency in that, if the product qualifies as one of the three SPP Covered Transactions in the SPP Final Order, SPP would not be required to request or to obtain future supplemental relief for a modified product. At the same time, however, the Commission declined to include the phrase ‘‘directly related to, and a logical outgrowth of’’ in the definitions of the SPP Covered Transactions because such phrase is too vague and too potentially far reaching to permit meaningful analysis under the Commission’s statutory standard of review. The SPP Final Order also sets forth certain conditions to the effectiveness of the exemption set forth therein. First, the Commission must be able to obtain through FERC positional and transactional data within SPP’s possession for products in SPP’s markets that are related to markets 272 See id. at 29522. As a general matter, in considering the costs and benefits of its actions, the Commission endeavors to quantify estimated costs and benefits where reasonably feasible. Here, however, the Commission considers the costs and benefits of this SPP Final Order mostly in qualitative terms because the commenters provided no such data or information to assist the Commission in doing so despite the SPP Proposed Order’s request. 273 See section IV.B. supra. 274 See id. E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices subject to the Commission’s jurisdiction, including any pertinent information concerning such data.275 Second, the exemption is expressly conditioned upon the requirement that neither the Tariff nor any other governing documents of SPP shall include any requirement that SPP notify its members prior to providing information to the Commission in response to a subpoena or other request for information or documentation.276 In the discussion that follows, the Commission considers the costs and benefits of the SPP Final Order to the public and market participants generally, and to SPP specifically. It also considers the costs and benefits of the exemption described in the SPP Final Order, in light of the public interest factors enumerated in CEA section 15(a). sradovich on DSK3GMQ082PROD with NOTICES d. Baseline The Commission’s baseline for consideration of the costs and benefits of the SPP Final Order is the costs and benefits that the public and market participants (including SPP) would experience in the absence of this proposed regulatory action. In other words, the baseline is a situation in which the Commission takes no action and exercises jurisdiction, meaning that the transactions that are the subject of SPP’s Exemption Application would be required to comply with all of the CEA and Commission regulations, as applicable.277 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 regime of FERC.278 The Commission also considers the regulatory landscape as it exists outside the context of the Dodd-Frank Act’s enactment. In this instance, it also is important to highlight the fact 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.279 For example, the costs and benefits attendant to the Commission’s condition 275 Paragraph 4(a) of the SPP Final Order. 4(b) of the SPP Final Order. 277 Under this situation, the statutory private right of action in CEA section 22 would remain intact and would apply, in accordance with its terms, to all applicable provisions of the CEA. 278 Some benefits of CFTC regulation overlap with benefits of FERC regulation and, therefore, are attributable to both regimes. 279 See supra section IV.A.2.b. 276 Paragraph VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 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 No. 741. Moreover, the Commission has granted similar relief to other RTOs and ISOs regulated by either FERC or PUCT.280 In the discussion that follows, the Commission endeavored to, where reasonably feasible, estimate quantifiable dollar costs of the SPP Final Order. The benefits and costs of the SPP Final Order, however, are not presently susceptible to meaningful quantification. Most of the costs arise from limitations on the scope of the SPP Final Order, and many of the benefits tied to those limitations arise from avoiding defaults and their implications that are clearly large in magnitude, but impracticable to estimate. Being unable to quantify, the Commission discusses proposed costs and benefits in qualitative terms. e. Benefits The Commission’s comprehensive action in this SPP Final Order benefits the public and market participants in several substantial if unquantifiable ways, as discussed below. First, by cabining the SPP Covered Transactions to the definitions provided in this SPP Final Order, the Commission limits the financial risk that may impact the markets. The mitigation of such risk inures to the benefit of SPP, market participants, and the public, especially SPP’s members and electric energy ratepayers. The condition that only ‘‘appropriate persons’’ may enter into the SPP Covered Transactions benefits the public and the entities that fall under the ‘‘appropriate persons’’ definition themselves, by ensuring that only persons with resources sufficient to understand and manage the risks of the transactions are permitted to engage in the same. Further, the condition requiring that the SPP Covered Transactions only be offered or sold pursuant to a FERC-approved Tariff benefits the public by, for example, ensuring that the SPP Covered Transactions are subject to a regulatory regime that is focused on the physical provision of reliable electric energy, and also has credit requirements that are designed to achieve risk management goals congruent with the regulatory objectives of the Commission’s DCO and SEF Core Principles. Absent these and 280 See RTO–ISO Order; see also supra section II.A. PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 73081 other similar limitations on participantand financial-eligibility, the integrity of the markets at issue could be compromised, and members and ratepayers left unprotected from potentially significant losses resulting from purely financial, speculative activity. The Commission’s retention of power to redress any fraud or manipulation in connection with the SPP Covered Transactions protects market participants and the public generally, as well as the financial markets for electric energy products. For example, the SPP Final Order is conditioned upon the Commission’s ability to obtain certain positional and transactional data within SPP’s possession from SPP. Through this condition, the Commission expects that it will be able to continue discharging its regulatory duties under the CEA. Further, the condition that SPP may not, in the future, maintain any Tariff provisions that would require SPP to notify members prior to providing the Commission with information will help maximize the effectiveness of the Commission’s enforcement program. In addition, explicitly providing an exemption from private claims under CEA section 22 will benefit market participants by allowing them to avoid legal and compliance costs due to an increased risk of private litigation under section 22. Moreover, granting an explicit exemption from the CEA section 22 private right of action reflects Congress’ intent regarding how manipulation and fraud in the context of the RTO–ISO markets should be addressed. Lastly, providing an exemption from private actions pursuant to CEA section 22 will prevent any potential tension between the enforcement programs of FERC and PUCT, on the one hand, and private enforcement under the CEA, on the other. f. Costs The SPP Final Order is exemptive and provides ‘‘appropriate persons’’ engaging in SPP Covered Transactions relief from certain requirements of the CEA and attendant Commission regulations. As with any exemptive rule or order, the exemption in the SPP Final Order is permissive, meaning that SPP was not required to request it and is not required to rely on it. Accordingly, the Commission assumes that SPP would rely on the exemption only if the anticipated benefits warrant the costs of the exemption. The Commission is of the view that SPP, market participants, and the public will experience minimal, if any, ongoing costs as a result of the determinations E:\FR\FM\24OCN1.SGM 24OCN1 sradovich on DSK3GMQ082PROD with NOTICES 73082 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices and conditions set forth in the SPP Final Order because, as SPP certifies pursuant to Commission regulation 140.99(c)(3)(ii), the attendant conditions are substantially similar to requirements that SPP and its market participants already incur in complying with FERC regulations. The requirement that all parties to the agreements, contracts, or transactions that are covered by the exemption in the SPP Final Order must be (1) an ‘‘appropriate person,’’ as defined sections 4(c)(3)(A) through (J) of the CEA; (2) an ‘‘eligible contract participant,’’ as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m); or (3) a ‘‘person who actively participates in the generation, transmission, or distribution of electric energy,’’ as defined in paragraph 5(f) of the SPP Final Order— is not likely to impose any significant, incremental costs on SPP because its existing legal and regulatory obligations under the FPA and FERC regulations mandate that only eligible market participants may engage in the SPP Covered Transactions. The requirement that the SPP Covered Transactions must be offered or sold pursuant to SPP’s Tariff, which has been approved by FERC, is a statutory requirement for the exemption set forth in CEA section 4(c)(6) and therefore is not a cost attributable to an act of discretion by the Commission.281 Moreover, requiring that SPP not operate outside its approved Tariff derives from existing legal requirements and is not a cost attributable to this SPP Final Order. As described above, FERC imposes on SPP and the SPP Market Monitor various information management requirements.282 These existing requirements are not materially different from the condition that neither SPP’s Tariff nor other governing documents may include any requirement that SPP notify a member prior to providing information to the Commission in response to a subpoena, special call, or other request for information or documentation. This requirement is not likely to impose any significant, incremental costs on SPP because SPP’s existing Tariff governing the sharing of information meets this condition. Requiring that an information sharing arrangement between the Commission and FERC be in full force and effect is not a cost to SPP or to other members of the public because it has been an 281 See 282 See 7 U.S.C. 6(c)(6)(A), (B). section IV.A.2.b. supra. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 inter-agency norm since 2005.283 The requirement that SPP comply with the Commission’s requests on an as-needed basis for related transactional and positional market data will impose only minimal costs on SPP to respond because the Commission contemplates that any information requested will already be in SPP’s possession.284 In addition, in granting an explicit exemption from the CEA section 22 private right of action, the Commission notes that there may be minimal costs associated with the fact that private litigants will not be permitted to vindicate their own interests or directly contribute to those interests through litigation with respect to fraud and manipulation in the RTO–ISO markets. However, as stated above in section III.B.2., such costs are mitigated by the fact that FERC and PUCT will continue to pervasively regulate such markets. In addition, nothing in the SPP Final Order affects the Commission’s own authority to address fraudulent or manipulative conduct in the RTO–ISO markets, including the Commission’s authority to seek restitution for the benefit of victims. Also, as noted above in section III.B.2., the Commission encourages market participants who observe potential fraud or manipulation in the markets subject to the Commission’s jurisdiction to bring their concerns to the Commission. g. Consideration of Alternatives The Commission considered the costs and benefits of not issuing the exemption found in the SPP Final Order. The Commission declined this approach as inconsistent with Congressional intent and contrary to the public interest, since 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 requires the Commission to exempt from its regulatory oversight agreements, contracts, or transactions traded pursuant to a FERC-approved tariff, where such exemption is in the public 283 The CFTC and FERC first signed an information sharing MOU on October 12, 2005. On January 2, 2014, as directed by Congress under the Dodd-Frank Act, the Commission and FERC entered into the CFTC–FERC Information Sharing MOU, which superseded the 2005 MOU and provided for the sharing of information for use in analyzing market activities and protecting market integrity. See supra note 56. 284 SPP represents that its Tariff requires the sharing of information with the Commission without prior notice to market participants. See Exemption Application Attachments at 52, 54; see also section IV.B. supra. PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 interest and consistent with the purposes of the CEA. In addition, not issuing the exemption found in the SPP Final Order would result in SPP being treated differently from the RTOs and ISOs covered by the Commission’s previous RTO–ISO Order. The Commission also considered the costs and benefits of expanding the definition of SPP Covered Transactions to include future products that are ‘‘directly related to, and a logical outgrowth of’’ existing products, as requested by SPP. The Commission declined this approach in part because of the concern that such an open-ended definition could present risks beyond those contemplated. At the same time, the Commission made clear that any new transactions that fall within the SPP Covered Transactions, which are explicitly defined in the SPP Final Order, and any modifications to existing transactions that do not alter the SPP Covered Transactions’ characteristics in a way that would cause them to fall outside those definitions, that are offered by SPP pursuant to a FERCapproved Tariff, are intended to be included within the exemption in the SPP Final Order.285 This provides a benefit in that no supplemental relief for such products would be required, which is a cost-mitigating efficiency gain for SPP. The Commission also considered expressly preserving the statutory private right of action found in CEA section 22 with respect to fraud and manipulation. The Commission has considered the costs and benefits of such action in light of the comments received, and, for the reasons stated in section III.B.2., has been persuaded that issuing an explicit exemption from CEA section 22 is the appropriate course of action. h. Consideration of CEA Section 15(a) Factors i. Protection of Market Participants and the Public As explained above, the Commission does not foresee that the SPP Final Order will have any negative effect on the protection of market participants and the public. More specifically, the SPP Covered Transactions, in light of the representations of SPP and in the context of SPP’s regulation by FERC, do not appear to generate significant risks of the nature of those addressed by the CEA. The Commission has attempted to delineate the definitional boundaries for the SPP Covered Transactions in a manner that appropriately ring-fences 285 See E:\FR\FM\24OCN1.SGM section IV.B. supra. 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices against the possibility that they could generate such risks, either now or as they may evolve in the future. In addition, the Commission has limited the exemption set forth in the SPP Final Order to persons with resources sufficient to understand and manage the risks of the SPP Covered Transactions. This requirement serves to protect excluded market participants and it minimizes the risk of potential misuse of the exempt transactions. ii. Efficiency, Competitiveness, and Financial Integrity of Futures Markets The Commission foresees little, if any, negative impact from the SPP Final Order on the efficiency, competitiveness, and financial integrity of markets regulated under the CEA. As discussed above, the Commission believes that the SPP Final Order will promote efficiency by allowing entities who partake of the exemption delineated therein transactional flexibility that the Commission understands to be valuable to their ability to efficiently deploy their limited resources. Further, the Commission believes that the SPP Final Order will increase competition by granting an exemption to SPP and appropriate persons, as defined in the SPP Final Order, that is similar in scope to the exemption granted to other RTOs and ISOs in the RTO–ISO Order. In addition, as discussed above, 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. sradovich on DSK3GMQ082PROD with NOTICES iii. Price Discovery The Commission does not believe that the SPP Final Order will materially impair price discovery in non-exempt markets subject to the Commission’s jurisdiction. As discussed above, the SPP Covered Transactions are used to manage unique electric industry operational risks. As such, Transmission Congestion Rights and Operating Reserve Transactions appear to be illsuited for exchange trading and/or to serve a useful price discovery function. In addition, as discussed above, while Energy Transactions can serve as a source of settlement prices for other transactions in Commission-regulated markets, SPP has a market monitoring system in place to detect and deter manipulation that takes place on its markets. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 iv. Sound Risk Management Practices The Commission believes that the SPP Final Order will promote the ability of SPP and its market participants to manage the operational risks posed by unique electric energy market characteristics, including the nonstorable nature of electric energy and demand that can and frequently does fluctuate dramatically within a short time-span. As discussed above, the Commission understands that the SPP Covered Transactions are an important tool facilitating SPP’s ability to efficiently manage operational risk in fulfillment of its public service mission to provide affordable, reliable electric energy. v. Other Public Interest Considerations In exercising its sections 4(c)(1) and 4(c)(6) exemptive authority in the SPP Final Order, the Commission is acting to promote the broader public interest by facilitating the supply of affordable, reliable electric energy, as contemplated by Congress.286 3. Amended RTO–ISO Order a. Background As discussed above, the RTO–ISO Order currently exempts contracts, agreements, and transactions for the purchase or sale of the limited electric energy-related products that are specifically described within the RTO– ISO Order from certain provisions of the CEA and Commission regulations, with the exception of the Commission’s general anti-fraud and antimanipulation authority, and scienterbased prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180.287 The RTO–ISO Order did not discuss CEA section 22. b. RTO–ISO Order Proposed Amendment and Request for Comment on the Commission’s Proposed Consideration of Costs and Benefits As discussed above, the Commission issued the RTO–ISO Order Proposed Amendment on May 9, 2016. The RTO– ISO Order Proposed Amendment proposed to amend the RTO–ISO Order to clarify that the RTO–ISO Order would not exempt the RTO–ISO Covered Entities from the private right of action found in section 22 of the CEA 286 See 287 See PO 00000 related discussion in section I. supra. RTO–ISO Order at 19912. Frm 00028 Fmt 4703 Sfmt 4703 73083 with respect to the Excepted Provisions.288 The RTO–ISO Order Proposed Amendment expressly requested public comment on the Commission’s proposed cost-benefit considerations, including with respect to reasonable alternatives; the magnitude of specific costs and benefits, and data or other information to estimate a dollar valuation; and any impact on the public interest factors specified in CEA section 15(a).289 The Commission received four comments regarding the cost-benefit analysis in the RTO–ISO Order Proposed Amendment. The four commenters argued that the Commission’s cost-benefit analysis of the amendment proposed in the RTO– ISO Order Proposed Amendment was inadequate or insufficient, and/or that the Commission underestimated the legal and regulatory costs of allowing private claims against market participants in the RTO–ISO markets.290 c. Summary of the Amended RTO–ISO Order The Amended RTO–ISO Order exempts the RTO–ISO market participants and RTO–ISO Covered Transactions from private actions pursuant to CEA section 22. In the discussion that follows, the Commission considers the costs and benefits of the Amended RTO–ISO Order to the public and market participants generally, and to the RTO– ISO Covered Entities specifically. It also considers the costs and benefits of the Amended RTO–ISO Order in light of the public interest factors enumerated in CEA section 15(a). d. Baseline In the RTO–ISO Order Proposed Amendment, the Commission proposed to exclude from the exemption set forth in the RTO–ISO Order the private right of action under CEA section 22. Thus, the Commission’s proposed baseline for consideration of the costs and benefits was the opposite of that action, i.e. the costs and benefits that the public and market participants would experience if the existing RTO–ISO Order were to be interpreted to exempt market participants from liability under the CEA section 22 private right of action.291 As discussed above,292 the Commission received a number of comments in response to the RTO–ISO 288 See supra section II.E. FR at 30253. 290 EEI at 11; EPSA at 10; IRC at 13; NFP Electric Associations at 7. 291 See 81 FR at 30252. 292 See supra sections III.B.1. and III.B.2. 289 81 E:\FR\FM\24OCN1.SGM 24OCN1 73084 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices Order Proposed Amendment, and was persuaded by specific points made by such commenters to amend the RTO– ISO Order to grant an explicit exemption from the CEA section 22 private right of action. Given this change, the Commission believes it is more informative, for purposes of this analysis, to use as the baseline the costs and benefits that the public and market participants would have experienced if the RTO–ISO Order were amended as the Commission originally proposed to do in the RTO–ISO Order Proposed Amendment (in other words, if the RTO–ISO Order were amended to explicitly preserve the CEA section 22 private right of action).293 In the discussion that follows, the Commission endeavored to, where reasonably feasible, estimate quantifiable dollar costs of the amendment to the RTO–ISO Order. The costs and benefits of the amendment, however, are not presently susceptible to meaningful quantification. Being unable to quantify, the Commission discusses proposed costs and benefits in qualitative terms. sradovich on DSK3GMQ082PROD with NOTICES e. Benefits Using the baseline described above,294 amending the RTO–ISO Order to address the issue of exemption from the CEA section 22 private right of action one way or another will prevent future uncertainty with respect to the scope of the RTO–ISO Order. Amending the RTO–ISO Order to provide an express exemption from CEA section 22 will benefit RTO–ISO market participants by allowing them to avoid legal and compliance costs due to an increased risk of private litigation under section 22. Moreover, granting an explicit exemption from the CEA section 22 private right of action reflects Congress’ intent regarding how manipulation and fraud in the context of the RTO–ISO markets should be addressed. Lastly, providing an exemption from private actions pursuant to CEA section 22 will prevent any potential tension between the enforcement programs of FERC and PUCT, on the one hand, and private enforcement under the CEA, on the other. f. Costs Using the baseline described above,295 the Commission notes that there may be minimal costs associated with the fact that private litigants will not be permitted to vindicate their own interests or directly contribute to those 81 FR 30247–48. supra section V.C.3.d. 295 See id. interests through litigation with respect to fraud and manipulation in the RTO– ISO markets. However, as stated above in section III.B.2., such costs are mitigated by the fact that FERC and PUCT will continue to pervasively regulate such markets. In addition, nothing in the Amended RTO–ISO Order affects the Commission’s own authority to address fraudulent or manipulative conduct in the RTO–ISO markets, including the Commission’s authority to seek restitution for the benefit of victims. Also, as noted above in section III.B.2., the Commission encourages market participants who observe potential fraud or manipulation in the markets subject to the Commission’s jurisdiction to bring their concerns to the Commission. ii. Efficiency, Competitiveness, and Financial Integrity of Futures Markets g. Consideration of Alternatives The Commission believes that the amendment to the RTO–ISO Order will foster the public interest for the reasons discussed above in section III.B.2. The Commission considered not issuing the Amended RTO–ISO Order. The Commission considered the uncertainty that has arisen with respect to the scope of the RTO–ISO Order and the availability of a private right of action under the RTO–ISO Order, particularly following the court rulings in the Aspire v. GDF Suez action,296 and has determined that a no-amendment alternative would prolong such uncertainty and thus be contrary to the public interest. The Commission also proposed to amend the RTO–ISO Order to explicitly preserve the CEA section 22 private right of action with respect to fraud and manipulation.297 The Commission has considered the costs and benefits of its proposed amendment in light of the comments received, and, for the reasons stated in section III.B.2., has been persuaded that issuing an explicit exemption from CEA section 22 is the appropriate course of action. h. Consideration of CEA Section 15(a) Factors i. Protection of Market Participants and the Public The Commission notes that, while under the Amended RTO–ISO Order, private litigants will not be permitted to pursue fraud or manipulation claims under CEA section 22 with respect to the RTO–ISO markets, market participants will still be protected through the pervasive regulation of those markets by FERC and PUCT, and by the Commission’s own authority to address fraud and manipulation in such markets. 293 See 294 See VerDate Sep<11>2014 17:42 Oct 21, 2016 296 See 297 See Jkt 241001 PO 00000 supra section II.D. 81 FR 30245. Frm 00029 Fmt 4703 Sfmt 4703 The Commission does not believe that the amendment to the RTO–ISO Order will have an effect on the efficiency, competitiveness, and financial integrity of the futures markets. iii. Price Discovery The Commission does not believe that the amendment to the RTO–ISO Order will have an effect on price discovery. iv. Sound Risk Management Practices The Commission does not believe that the amendment to the RTO–ISO Order will have a material effect on sound risk management practices. v. Other Public Interest Considerations VI. SPP Final Order Upon due consideration and consistent with the determinations set forth above, the Commission hereby issues the following order (‘‘Order’’): Pursuant to its authority under sections 4(c)(1) and 4(c)(6) of the Commodity Exchange Act (‘‘CEA’’ or Act’’) and in accordance with sections 4(c)(1) and (2) of the Act, the Commodity Futures Trading Commission (‘‘CFTC’’ or ‘‘Commission’’) 1. Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-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 antifraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180. For the avoidance of doubt, this exemption applies to private actions pursuant to CEA section 22 with respect to all provisions of the Act, including the foregoing enumerated provisions, but does not restrict the Commission’s enforcement authority pursuant to those provisions. 2. Scope. This exemption applies only to agreements, contracts and E:\FR\FM\24OCN1.SGM 24OCN1 sradovich on DSK3GMQ082PROD with NOTICES Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices transactions that satisfy each of the following requirements: a. The agreement, contract or transaction is for the purchase and sale of one of the following electric energyrelated products: (1) ‘‘Transmission Congestion Rights’’ defined in paragraph 5(a) of this Order, except that the exemption shall only apply to such Transmission Congestion Rights where: (a) Each Transmission Congestion Right is linked to, and the aggregate volume of Transmission Congestion Rights for any period of time is limited by, the physical capability (after accounting for counterflow) of the electric energy transmission system operated by SPP for such period; (b) SPP serves as the market administrator for the market on which the Transmission Congestion Rights are transacted; (c) Each party to the transaction is a member of SPP (or is SPP itself) and the transaction is executed on a market administered by SPP; and (d) The transaction does not require any party to make or take physical delivery of electric energy. (2) ‘‘Energy Transactions’’ as defined in paragraph 5(b) of this Order. (3) ‘‘Operating Reserve Transactions’’ as defined in paragraph 5(c) of this Order. b. Each party to the agreement, contract or transaction is: (1) An ‘‘appropriate person,’’ as defined in sections 4(c)(3)(A) through (J) of the CEA; (2) an ‘‘eligible contract participant,’’ as defined in section 1a(18)(A) of the CEA and in Commission regulation 1.3(m); or (3) a ‘‘person who actively participates in the generation, transmission, or distribution of electric energy,’’ as defined in paragraph 5(f) of this Order. c. The agreement, contract or transaction is offered or sold pursuant to SPP’s Tariff and that Tariff has been approved by the Federal Energy Regulatory Commission (‘‘FERC’’). 3. Applicability to SPP. Subject to the conditions contained in the Order, the Order applies to SPP 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: Information sharing arrangements between the Commission and FERC that are acceptable to the Commission continue to be in effect, and SPP’s compliance with the Commission’s requests through FERC to share, on an as-needed basis VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 and in connection with an inquiry consistent with the CEA and Commission regulations, positional and transactional data within SPP’s possession for products in SPP’s markets that are related to markets that are subject to the Commission’s jurisdiction, including any pertinent information concerning such data. b. Notification of requests for information: Neither the Tariff nor any other governing documents of SPP shall include any requirement that SPP 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 ‘‘Transmission Congestion 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 electric energy, established on an electric energy market administered by SPP, at a specified source (i.e., where electric energy is deemed injected into the grid of SPP) and a specified sink (i.e., where electric energy is deemed withdrawn from the grid of SPP). b. ‘‘Energy Transactions’’ are transactions in a ‘‘Day-Ahead Market’’ or ‘‘Real-Time Balancing Market,’’ as those terms are defined in paragraphs 5(d) and 5(e) of this Order, for the purchase or sale of a specified quantity of electric energy at a specified location (including virtual bids and offers), where: (1) The price of the electric energy is established at the time the transaction is executed; (2) Performance occurs in the RealTime Balancing Market by either: (a) Delivery or receipt of the specified electric energy, or (b) A cash payment or receipt at the price established in the Day-Ahead Market or Real-Time Balancing Market (as permitted by SPP in its Tariff); 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 electric energy transmission system operated by SPP for that period of time. c. ‘‘Operating Reserve Transactions’’ are transactions: (1) In which SPP, for the benefit of load-serving entities and resources, purchases, through auction, the right, during a period of time as specified in SPP’s Tariff, to require the seller of such right to operate electric energy facilities in a physical state such that the facilities can increase or decrease the PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 73085 rate of injection or withdrawal of a specified quantity of electric energy into or from the electric energy transmission system operated by SPP with: (a) Physical performance by the seller’s facilities within a response time interval specified in SPP’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 SPP’s Day-Ahead or Real-Time Balancing Market, as those terms are defined in paragraphs 5(d) and 5(e) of this Order, price for electric energy applicable whenever SPP exercises its right that electric energy be delivered (including ‘‘Demand Response,’’ as defined in paragraph 5(g) of this Order); (b) Compensation for the opportunity cost of not supplying or consuming electric energy or other services during any period during which SPP requires that the seller not supply energy or other services; (c) An upfront payment determined through the auction administered by SPP for this service; (d) An additional amount indexed to the frequency, duration, or other attributes of physical performance as specified in SPP’s Tariff; and (3) In which the value, quantity, and specifications of such transactions for SPP for any period of time shall be limited to the physical capability of the electric energy transmission system operated by SPP for that period of time. d. ‘‘Day-Ahead Market’’ means an electric energy market administered by SPP on which the price of electric energy at a specified location is determined, in accordance with SPP’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. e. ‘‘Real-Time Balancing Market’’ means an electric energy market administered by SPP on which the price of electric energy at a specified location is determined, in accordance with SPP’s Tariff, for specified time periods within the same 24-hour period. f. ‘‘Person who actively participates in the generation, transmission, or distribution of electric energy’’ means a person that is in the business of: (1) Generating, transmitting, or distributing electric energy; or (2) providing electric energy services that are necessary to support the reliable operation of the transmission system. g. ‘‘Demand Response’’ means the right of SPP to require that certain E:\FR\FM\24OCN1.SGM 24OCN1 sradovich on DSK3GMQ082PROD with NOTICES 73086 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices sellers of such rights curtail consumption of electric energy from the electric energy transmission system operated by SPP during a future period of time as specified in SPP’s Tariff. h. ‘‘SPP’’ means Southwest Power Pool, Inc. or any successor in interest to Southwest Power Pool. i. ‘‘Tariff.’’ Reference to a SPP ‘‘Tariff’’ includes a tariff, rate schedule or protocol. j. ‘‘Exemption Application’’ means the application for an exemptive order under 4(c)(6) of the CEA filed by SPP on October 17, 2013, as amended August 1, 2014. 6. Effective Date. This Order is effective upon publication in the Federal Register. 7. Delegation of Authority. The Commission hereby delegates, until such time as the Commission orders otherwise, to the Director of the Division of Market Oversight (‘‘Division’’) and to such members of the Division’s staff acting under his or her direction as he or she may designate, in consultation with the General Counsel or such members of the General Counsel’s staff acting under his or her direction as he or she may designate, the authority to request information from SPP pursuant to section 4(a) of this Order. This Order is based upon the representations made in the Exemption Application for an exemptive order under section 4(c) of the CEA filed by SPP,298 including those representations with respect to compliance with FERC regulation 35.47. It is also based on supporting materials provided to the Commission by SPP and its counsel, including a legal memorandum that, in the Commission’s sole discretion, provides the Commission with assurance that the netting arrangements contained in the approach selected by SPP to satisfy the obligations contained in FERC regulation 35.47(d) will, in fact, provide SPP 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. 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 consistent with the public interest and purposes of the CEA. 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 jurisdiction, and to condition, suspend, terminate or otherwise modify or restrict the exemption granted in this Order, as appropriate, upon its own motion. VII. Amended RTO–ISO Order The Preamble to and Paragraph 1 of the RTO–ISO Order are revised to read as follows: Pursuant to its authority under sections 4(c)(1) and 4(c)(6) of the Commodity Exchange Act (‘‘CEA’’) or (‘‘Act’’) and in accordance with sections 4(c)(1) and (2) of the Act, the Commodity Futures Trading Commission (‘‘Commission’’) 1. Exempts, subject to the conditions and limitations specified herein, the execution of the electric energy-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 antifraud and anti-manipulation authority, and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited to, Commission regulations 23.410(a) and (b), 32.4, and part 180. For the avoidance of doubt, this exemption applies to private actions pursuant to CEA section 22 with respect to all provisions of the Act, including the foregoing enumerated provisions, but does not restrict the Commission’s enforcement authority pursuant to those provisions. Issued in Washington, DC, on October 18, 2016 by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. 298 In the Matter of the Application for an Exemptive Order Under Section 4(c) of the Commodity Exchange Act by Southwest Power Pool, Inc., amended Aug. 1, 2014. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 Appendices to Final Order in Response to an Application From Southwest Power Pool, Inc. To Exempt Specified Transactions; Amendment to the Final Order Exempting Specified Transactions of Certain Independent System Operators and Regional Transmission Organizations— Commission Voting Summary, Chairman’s Statement, and Commissioner’s Statement Appendix 1—Commission Voting Summary On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative. Appendix 2—Statement of Chairman Timothy G. Massad I support this order, which comes after careful review of the issue, including comments from many market participants. Our electric markets are subject to regulation by the Federal Energy Regulatory Commission (FERC) and state regulators. Those regulators work to ensure that energy rates remain reasonable, transmission systems function reliably, and the interests of market participants are balanced with the protection of electricity consumers. In light of this, the CFTC exempted certain transactions in the regional transmission organization (RTO) and independent system operator (ISO) markets from most provisions of the Commodity Exchange Act (CEA), other than our own authority to pursue fraud and manipulation in those markets. One issue was left uncertain, which was whether private rights of action under the CEA could be brought against RTOs, ISOs, and other market participants. As a general matter, private rights of action are important to our regulatory structure. They can deter bad actors and protect market participants. But many market participants expressed concern that private actions could create costs within the markets in ways regulators did not anticipate. For example, several state consumer advocate offices noted that private rights of action could inadvertently introduce regulatory uncertainty and increase costs for consumers. So while private rights of action will remain critical overall in our markets, I am persuaded that, in this limited instance, they could cause instability and adversely affect consumers without necessarily enhancing supervision of markets or consumer protection. In making this determination, it is important that the CFTC continues to retain the authority to pursue fraud and manipulation within those markets. Aggrieved market participants and consumers also still have the ability to file complaints with the CFTC and our Whistleblower program. I thank the CFTC staff and my fellow Commissioners for their work on this matter, as well as those who took the time to provide us with feedback. E:\FR\FM\24OCN1.SGM 24OCN1 Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / Notices Appendix 3—Statement of Commissioner J. Christopher Giancarlo I support this commonsense decision that it is not in the public interest to allow private lawsuits against electric utilities trading in wholesale energy markets. Two months ago, I visited a construction site for a state-of-the-art electric power plant in my home state of New Jersey. The facility was being built to withstand future weather events like Superstorm Sandy. The power it will produce will serve millions of local residents. Without today’s practical decision, power utilities across the country may have hesitated or delayed building such new power plants because of the regulatory uncertainty and costs associated with private litigation—costs that surely would be passed on to millions of ratepayers throughout the country. As I have observed, preserving the Section 22 private right of action is not necessary in these heavily regulated markets.1 Both the CFTC and the FERC have the authority to seek redress for the claims of private persons who raise meritorious allegations of fraud or manipulation. I am heartened that the Commission now agrees and has concluded, with today’s action, that allowing private lawsuits is not in the public interest. It is just commonsense. [FR Doc. 2016–25571 Filed 10–21–16; 8:45 am] BILLING CODE 6351–01–P DEPARTMENT OF DEFENSE Department of the Army Army Education Advisory Subcommittee Meeting Notice Department of the Army, DoD. ACTION: Notice of open Subcommittee meeting. AGENCY: The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Defense Language Institute Foreign Language Center Board of Visitors, a subcommittee of the Army Education Advisory Committee. This meeting is open to the public. sradovich on DSK3GMQ082PROD with NOTICES SUMMARY: 1 See Notice of Proposed Amendment to and Request for Comment on the Final Order in Response to 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 Regulatory Commission or the Public Utility Commission of Texas From Certain Provisions of the Commodity Exchange Act Pursuant to the Authority Provided in the Act, 81 FR 30245, 30254–55 (May 16, 2016) (Statement of Dissent by Commissioner J. Christopher Giancarlo); J. Christopher Giancarlo, Op-Ed, Unneeded mandate would hurt N.J. consumers, The Record, Aug. 18, 2016, available at http:// www.northjersey.com/opinion/opinion-guestwriters/unneeded-mandate-would-hurt-n-jconsumers-1.1647129. VerDate Sep<11>2014 17:42 Oct 21, 2016 Jkt 241001 The Defense Language Institute Foreign Language Center (DLIFLC) Board of Visitors Subcommittee will meet from 8:00 a.m. to 5:00 p.m. on December 7 and from 09:30 a.m. to 5:00 p.m. on December 8, 2016. ADDRESSES: Defense Language Institute Foreign Language Center, 891 Elkridge Road, Linthicum Heights, MD 21090. FOR FURTHER INFORMATION CONTACT: Mr. Detlev Kesten, the Alternate Designated Federal Officer for the subcommittee, in writing at Defense Language Institute Foreign Language Center, ATFL–APAS, Bldg. 634, Presidio of Monterey, CA 93944, by email at detlev.kesten@ dliflc.edu, or by telephone at (831) 242– 6670. SUPPLEMENTARY INFORMATION: The subcommittee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.150. Purpose of the Meeting: The purpose of the meeting is to provide the subcommittee with briefings and information focusing on the Institute’s plan to implement a comprehensive leadership development plan for its faculty and staff and to present updates to the curriculum. The subcommittee will also receive an update on the Institute’s accreditation and will address administrative matters. Proposed Agenda: December 7—The subcommittee will receive briefings associated with DLIFLC’s leadership development goals and curriculum updates and the Institute’s actions in supporting said goal. The subcommittee will be updated on the Institute’s on going self-study to reaffirm its academic accreditation. The subcommittee will complete administrative procedures and appointment requirements. December 8—The subcommittee will have time to discuss and compile observations pertaining to agenda items. General deliberations leading to provisional findings will be referred to the Army Education Advisory Committee for deliberation by the Committee under the open-meeting rules. Public Accessibility to the Meeting: Pursuant to 5 U.S.C. 552b, as amended, and 41 CFR 102–3.140 through 102– 3.165, and subject to the availability of space, this meeting is open to the public. Seating is on a first to arrive basis. Attendees are requested to submit their name, affiliation, and daytime phone number fourteen business days prior to the meeting to Mr. Kesten, via electronic mail, the preferred mode of submission, at the address listed in the DATES: PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 73087 FOR FURTHER INFORMATION CONTACT section. Members of the public attending the subcommittee meetings will not be permitted to present questions from the floor or speak to any issue under consideration by the subcommittee. Because the meeting of the subcommittee will be held in a Federal Government facility, security screening is required. A photo ID is required to enter the facility. Please note that security and gate guards have the right to inspect vehicles and persons seeking to enter and exit the installation. The facility is fully handicap accessible. Wheelchair access is available at the main entrance of the building. For additional information about public access procedures, contact Mr. Kesten, the subcommittee’s Alternate Designated Federal Officer, at the email address or telephone number listed in the FOR FURTHER INFORMATION CONTACT section. Written Comments or Statements: Pursuant to 41 CFR 102–3.105(j) and 102–3.140 and section 10(a)(3) of the Federal Advisory Committee Act, the public or interested organizations may submit written comments or statements to the subcommittee, in response to the stated agenda of the open meeting or in regard to the subcommittee’s mission in general. Written comments or statements should be submitted to Mr. Kesten, the subcommittee Alternate Designated Federal Officer, via electronic mail, the preferred mode of submission, at the address listed in the FOR FURTHER INFORMATION CONTACT section. Each page of the comment or statement must include the author’s name, title or affiliation, address, and daytime phone number. The Alternate Designated Federal Official will review all submitted written comments or statements and provide them to members of the subcommittee for their consideration. Written comments or statements being submitted in response to the agenda set forth in this notice must be received by the Alternate Designated Federal Official at least seven business days prior to the meeting to be considered by the subcommittee. Written comments or statements received after this date may not be provided to the subcommittee until its next meeting. Pursuant to 41 CFR 102–3.140d, the Subcommittee is not obligated to allow a member of the public to speak or otherwise address the Subcommittee during the meeting. Members of the public will be permitted to make verbal comments during the Committee meeting only at the time and in the manner described below. If a member of E:\FR\FM\24OCN1.SGM 24OCN1

Agencies

[Federal Register Volume 81, Number 205 (Monday, October 24, 2016)]
[Notices]
[Pages 73062-73087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25571]


=======================================================================
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COMMODITY FUTURES TRADING COMMISSION


Final Order Regarding Southwest Power Pool, Inc. Application To 
Exempt Specified Transactions; Amendment to the Final Order Exempting 
Specified Transactions of Certain Independent System Operators and 
Regional Transmission Organizations

AGENCY: Commodity Futures Trading Commission.

ACTION: Final order.

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SUMMARY: The Commodity Futures Trading Commission (``CFTC'' or 
``Commission'') is issuing a final order in response to an application 
from Southwest Power Pool, Inc. (``SPP'') to exempt specified 
transactions from certain provisions of the Commodity Exchange Act 
(``CEA'' or ``Act'') and Commission regulations. In this release, the 
Commission is also amending an order issued on March 28, 2013 exempting 
other specified transactions from certain provisions of the CEA and 
Commission regulations.

DATES: The effective date for the SPP Final Order and the Amended RTO-
ISO Order is October 24, 2016.

FOR FURTHER INFORMATION CONTACT: Robert B. Wasserman, Chief Counsel, 
202-418-5092, rwasserman@cftc.gov, Alicia L. Lewis, Special Counsel, 
202-418-5862, alewis@cftc.gov, or Andr[eacute]e Goldsmith, Special 
Counsel, 202-418-6624, agoldsmith@cftc.gov, Division of Clearing and 
Risk; David P. Van Wagner, Chief Counsel, 202-418-5481, 
dvanwagner@cftc.gov, or Riva Spear Adriance, Senior Special Counsel, 
202-418-5494, radriance@cftc.gov, Division of Market Oversight, in each 
case at the Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION: 

Overview

    The Commission is issuing a final order (``SPP Final Order'') in 
response to an application (``Exemption Application'') \1\ from SPP to 
exempt certain Transmission Congestion Rights, Energy Transactions, and 
Operating Reserve Transactions (collectively, the ``SPP Covered 
Transactions'') from certain provisions of the CEA \2\ and Commission 
regulations. The SPP Final Order exempts contracts, agreements, and 
transactions for the purchase or sale of the limited electric energy-
related products that are specifically described within the SPP Final 
Order from certain provisions of the CEA and Commission regulations, 
with the exception of the Commission's general anti-fraud and anti-
manipulation authority, and scienter-based prohibitions, under CEA 
sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited 
to, Commission regulations Sec.  23.410(a) and (b), Sec.  32.4, and 
part 180.\3\ The exemption in the SPP Final Order also will exempt such 
transactions from private actions pursuant to CEA section 22.\4\ To be 
eligible for the exemption contained in the SPP Final Order, the 
contract, agreement, or transaction must be offered or entered into in 
a market administered by SPP pursuant to SPP's tariff, rate schedule, 
or protocol (collectively, ``Tariff''), and the Tariff must have been 
approved by the Federal Energy Regulatory Commission (``FERC''). In 
addition, the contract, agreement, or transaction must be entered into 
by persons who are ``appropriate persons,'' as defined in sections 
4(c)(3)(A) through (J) of the Act,\5\ ``eligible contract 
participants,'' as defined in section 1a(18)(A) of the Act and 
Commission regulations,\6\ or persons who are in the business of: (i) 
Generating, transmitting, or distributing electric energy, or (ii) 
providing electric energy services that are necessary to support the 
reliable operation of the transmission system. The SPP Final Order also 
extends to any person or class of persons offering, entering into, 
rendering advice, or rendering other services with respect to the SPP 
Covered Transactions. Finally, the SPP Final Order is subject to other 
conditions set forth therein. Authority for issuing the exemption is 
found in section 4(c)(6) of the Act.\7\ The Commission issued a 
proposed order and request for comment with respect to SPP's Exemption 
Application (``SPP Proposed Order'') on May 18, 2015.\8\
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    \1\ In the Matter of the Application for an Exemptive Order 
Under Section 4(c) of the Commodity Exchange Act by Southwest Power 
Pool, Inc., Oct. 17, 2013, as amended Aug. 1, 2014.
    \2\ 7 U.S.C. 1 et seq.
    \3\ The foregoing provisions are referred to as the ``Excepted 
Provisions.''
    \4\ 7 U.S.C. 25.
    \5\ 7 U.S.C. 6(c)(3)(A) through (J).
    \6\ 7 U.S.C. 1a(18)(A). 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.
    \7\ 7 U.S.C. 6(c)(6).
    \8\ Notice of Proposed Order and Request for Comment on an 
Application for an Exemptive Order From Southwest Power Pool, Inc. 
From Certain Provisions of the Commodity Exchange Act Pursuant to 
the Authority Provided in Section 4(c)(6) of the Act, 80 FR 29490, 
May 21, 2015. The SPP Proposed Order was published in the Federal 
Register on May 21, 2015.

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[[Page 73063]]

    A copy of the Exemption Application is available on the 
Commission's Web site at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/spp4camdappl080114.pdf; the 
attachments to the Application are posted at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/spp4cattach-a-gg080114.pdf. A chart submitted by SPP that sets forth 
the status of its implementation of the standards set forth in FERC 
Order No. 741 is posted at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/spp4caddendum_b.pdf. A copy of the 
SPP Proposed Order is available at 80 FR 29490, and on the Commission's 
Web site at http://www.cftc.gov/ucm/groups/public/@lrfederalregister/documents/file/2015-12346a.pdf. A copy of the comment file with respect 
to the SPP Proposed Order is available on the Commission's Web site at 
http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1586.
    The Commission is also amending an order issued on March 28, 2013 
pursuant to the authority in section 4(c)(6) of the Act exempting 
specified electric energy transactions from certain provisions of the 
CEA and Commission regulations (``RTO-ISO Order'').\9\ The RTO-ISO 
Order was issued in response to a consolidated petition from certain 
regional transmission organizations (``RTOs'') and independent system 
operators (``ISOs''). The RTO-ISO Order exempted contracts, agreements, 
and transactions for the purchase or sale of the limited electric 
energy-related products that are specifically described within the RTO-
ISO Order from certain provisions of the CEA and Commission 
regulations, with the exception of the Commission's general anti-fraud 
and anti-manipulation authority, and scienter-based prohibitions, under 
CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited 
to, Commission regulations 23.410(a) and (b), 32.4, and part 180. The 
RTO-ISO Order did not specifically mention CEA section 22. The 
Commission issued a proposal to amend the RTO-ISO Order and request for 
comment on May 9, 2016 (``RTO-ISO Order Proposed Amendment'').\10\ The 
Commission is amending the text of the RTO-ISO Order to also exempt the 
transactions covered under that order from private actions pursuant to 
CEA section 22 (``Amended RTO-ISO Order'').
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    \9\ Final Order in Response to 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 Regulatory Commission or the Public 
Utility Commission of Texas From Certain Provisions of the Commodity 
Exchange Act Pursuant to the Authority Provided in the Act, 78 FR 
19880, Apr. 2, 2013. The RTO-ISO Order was published in the Federal 
Register on April 2, 2013.
    \10\ Notice of Proposed Amendment to and Request for Comment on 
the Final Order in Response to 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 Regulatory Commission or the Public Utility 
Commission of Texas From Certain Provisions of the Commodity 
Exchange Act Pursuant to the Authority Provided in the Act, 81 FR 
30245, May 16, 2016. The RTO-ISO Order Proposed Amendment was 
published in the Federal Register on May 16, 2016.
---------------------------------------------------------------------------

    A copy of the RTO-ISO Order is available at 78 FR 19880 (April 2, 
2013), and on the Commission's Web site at http://www.cftc.gov/idc/groups/public/@lrfederalregister/documents/file/2013-07634a.pdf. A copy 
of the RTO-ISO Order Proposed Amendment is available at 81 FR 30245 
(May 16, 2016), and on the Commission's Web site at http://www.cftc.gov/idc/groups/public/@lrfederalregister/documents/file/2016-11385a.pdf. A copy of the comment file with respect to the RTO-ISO 
Order Proposed Amendment is available on the Commission's Web site at 
http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1697.

Table of Contents

I. Relevant Dodd-Frank Provisions
II. Background
    A. RTO-ISO Order
    B. SPP Exemption Application
    C. SPP Proposed Order
    1. Transactions Proposed To Be Exempted
    2. Conditions to the SPP Proposed Order
    3. Additional Limitations
    D. Aspire v. GDF Suez
    E. RTO-ISO Order Proposed Amendment
III. Summary of Comments
    A. Overview of Comments
    B. Private Right of Action Under CEA Section 22
    1. Summary of Comments
    2. Commission Determination
    C. Use of the Term ``Member'' in the SPP Proposed Order
IV. Section 4(c) Determinations
    A. Section 4(c) Analysis
    1. Overview of CEA Section 4(c)
    a. Sections 4(c)(6)(A) and (B)
    b. Section 4(c)(1)
    c. Discussion of Comments on Sections 4(c)(6) and 4(c)(1)
    d. Section 4(c)(2)
    e. Section 4(c)(3)
    2. CEA Section 4(c) Determinations--SPP Final Order
    a. Commission Jurisdiction
    b. Consistent With the Public Interest and Purposes of the CEA
    c. CEA Section 4(a) Should Not Apply to the Transactions or 
Entities Eligible for the Exemption
    d. Appropriate Persons
    e. Effect on the Commission's or Any Contract Market's Ability 
To Discharge Its Regulatory or Self-Regulatory Duties Under the CEA
    3. CEA Section 4(c) Determinations--Amended RTO-ISO Order
    a. Consistent With the Public Interest and Purposes of the CEA
    b. Other Section 4(c) Determinations
    B. Additional Limitations and Provisions--SPP Final Order
V. Related Matters
    A. Regulatory Flexibility Act
    1. Introduction
    2. SPP Final Order
    3. Amended RTO-ISO Order
    B. Paperwork Reduction Act
    1. Introduction
    2. SPP Final Order
    3. Amended RTO-ISO Order
    C. Cost-Benefit Considerations
    1. Introduction
    2. SPP Final Order
    a. Background
    b. SPP Proposed Order and Request for Comment on the 
Commission's Proposed Consideration of Costs and Benefits
    c. Summary of the SPP Final Order
    d. Baseline
    e. Benefits
    f. Costs
    g. Consideration of Alternatives
    h. Consideration of CEA Section 15(a) Factors
    3. Amended RTO-ISO Order
    a. Background
    b. RTO-ISO Order Proposed Amendment and Request for Comment on 
the Commission's Proposed Consideration of Costs and Benefits
    c. Summary of the Amended RTO-ISO Order
    d. Baseline
    e. Benefits
    f. Costs
    g. Consideration of Alternatives
    h. Consideration of CEA Section 15(a) Factors
VI. SPP Final Order
VII. Amended RTO-ISO Order

I. Relevant Dodd-Frank Provisions \11\
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    \11\ For a fuller discussion, see RTO-ISO Order at 19881-82.
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    On July 21, 2010, President Obama signed the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (``Dodd-Frank Act'').\12\ Title VII 
of the Dodd-Frank Act amended the CEA and altered the scope of the 
Commission's

[[Page 73064]]

exclusive jurisdiction.\13\ 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.\14\ As a result, the Commission's exclusive 
jurisdiction now includes swaps as well as futures.
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    \12\ 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/ucm/groups/public/@swaps/documents/file/hr4173_enrolledbill.pdf.
    \13\ Section 722(e) of the Dodd-Frank Act.
    \14\ 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).
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    The Dodd-Frank Act also added a savings clause that addresses the 
roles of the Commission, FERC, and state regulatory authorities as they 
relate to certain agreements, contracts, or transactions traded 
pursuant to the tariff or rate schedule of an RTO or ISO that has been 
approved by FERC or the state regulatory authority.\15\ That savings 
clause, paragraph (I)(i) of CEA section 2(a)(1), preserves the 
statutory authority of FERC and state regulatory authorities over 
agreements, contracts, or transactions entered into pursuant to a 
tariff or rate schedule approved by FERC or a State regulatory 
authority, 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 or trading facility owned or operated 
by an RTO or ISO.\16\ However, paragraph (I)(ii) of CEA section 2(a)(1) 
also preserves the Commission's statutory authority over such 
agreements, contracts, or transactions.\17\
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    \15\ See 7 U.S.C. 2(a)(1)(I).
    \16\ 7 U.S.C. 2(a)(1)(I)(i).
    \17\ See 7 U.S.C. 2(a)(1)(I)(ii).
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    The Dodd-Frank Act granted the Commission specific powers to exempt 
certain contracts, agreements, or transactions from duties otherwise 
required by statute or Commission regulation by adding, as relevant 
here, new section 4(c)(6) to the CEA. Section 4(c)(6) provides that the 
Commission shall, if certain conditions are met, issue exemptions from 
the ``requirements'' of the CEA for certain transactions entered into 
pursuant to a tariff or rate schedule approved or permitted to take 
effect by FERC or a state regulatory authority.\18\
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    \18\ See 7 U.S.C. 6(c)(6). CEA section 4(c)(6) provides that the 
Commission shall issue an exemption only if the Commission 
determines that the exemption would be consistent with the public 
interest and the purposes of this Act. Moreover, the Commission must 
act in accordance with 4(c)(1) and 4(c)(2) when issuing an exemption 
under section 4(c)(6).
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    The Commission must act ``in accordance with'' sections 4(c)(1) and 
(2) of the CEA when issuing an exemption under section 4(c)(6).\19\ 
Section 4(c)(1) grants the Commission the authority to exempt any 
agreement, contract, or transaction or class of transactions, including 
swaps, from certain provisions of the CEA, in order to promote 
responsible economic or financial innovation and fair competition.\20\ 
Section 4(c)(2) \21\ of the Act further provides that the Commission 
may not grant exemptive relief unless it determines that: (1) The 
exemption would be consistent with the public interest and the purposes 
of the CEA; (2) the transaction will be entered into solely between 
``appropriate persons'' as that term is defined in section 4(c); \22\ 
and (3) 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 responsibilities under the CEA.\23\ In 
enacting section 4(c), Congress noted that the purpose of the provision 
is to give the Commission a means of providing certainty and stability 
to existing and emerging markets so that financial innovation and 
market development can proceed in an effective and competitive 
manner.\24\
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    \19\ 7 U.S.C. 6(c)(6).
    \20\ 7 U.S.C. 6(c)(1).
    \21\ 7 U.S.C. 6(c)(2).
    \22\ Section 4(c)(3) of the CEA further outlines who may 
constitute an appropriate person for the purpose of a particular 
4(c) exemption and includes, as relevant to the SPP Final Order: (a) 
Any person that qualifies for 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.
    \23\ 7 U.S.C. 6(c)(2).
    \24\ H.R. Rep. No. 102-978, 102d Cong. 2d Sess., 1992 
U.S.C.C.A.N. 3179, 3213 (1992).
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II. Background

A. RTO-ISO Order

    On March 28, 2013, the Commission issued the RTO-ISO Order, which 
exempts specified transactions of particular RTOs and ISOs \25\ from 
certain provisions of the CEA and Commission regulations. The scope of 
the RTO-ISO Order includes transactions that fall within the 
definitions of ``Financial Transmission Rights,'' ``Energy 
Transactions,'' ``Forward Capacity Transactions,'' or ``Reserve or 
Regulation Transactions'' \26\ (collectively, the ``RTO-ISO Covered 
Transactions'') and that are offered or sold in a market administered 
by one of the petitioning RTOs or ISOs pursuant to a tariff, rate 
schedule, or protocol that has been approved or permitted to take 
effect by FERC or PUCT.\27\ In addition, to be eligible for the 
exemption in the RTO-ISO Order, all parties to the agreements, 
contracts, or transactions that are covered by the RTO-ISO Order must 
be: (1) ``appropriate persons,'' as defined in section 4(c)(3)(A) 
through (J) of the CEA; (2) ``eligible contract participants,'' as 
defined in section 1a(18)(A) of the CEA and in Commission regulation 
1.3(m); or (3) in the business of (i) generating, transmitting, or 
distributing electric energy, or (ii) providing electric energy 
services that are necessary to support the reliable operation of the 
transmission system.\28\ To be eligible for the exemption in the RTO-
ISO Order, the transactions must comply with all other enumerated terms 
and conditions in the RTO-ISO Order.\29\ The relief granted in, and the 
conditions imposed by, the SPP Proposed Order are consistent with the 
analogous provisions of the RTO-ISO Order.
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    \25\ Six entities (the ``Requesting Parties'') jointly filed a 
petition requesting the exemption provided in the RTO-ISO Order: 
Midwest Independent Transmission System Operator, Inc. (``MISO''), 
ISO New England, Inc. (``ISO NE''), and PJM Interconnection, L.L.C. 
(``PJM'') are RTOs subject to regulation by FERC; California 
Independent System Operator Corporation (``CAISO'') and New York 
Independent System Operator, Inc. (``NYISO'') are ISOs subject to 
regulation by FERC; and the Electric Reliability Council of Texas, 
Inc. (``ERCOT'') performs the role of an ISO and is subject to 
regulation by the Public Utility Commission of Texas (``PUCT''). See 
RTO-ISO Order at 19882.
    \26\ See id. at 19912-13.
    \27\ See id. at 19913. The exemption in the RTO-ISO Order also 
applies to ``any person or class of persons offering, entering into, 
rendering advice, or rendering other services with respect'' to any 
of the RTO-ISO Covered Transactions. See id. at 19912. These 
entities, including the six Requesting Parties (see supra note 25) 
are hereinafter referred to collectively as the ``RTO-ISO Covered 
Entities.''
    \28\ See id. at 19913-14.
    \29\ See id. at 19912-15.
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    In the RTO-ISO Order, the Commission excepted from the exemption 
the Commission's general anti-fraud and anti-manipulation authority, 
and scienter-based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 
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 
under these sections including, but not limited to, Commission 
regulations 23.410(a) and (b), 32.4, and part 180.\30\ The RTO-ISO 
Order did not discuss CEA section 22.
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    \30\ See id. at 19912.
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B. SPP Exemption Application

    On October 17, 2013, SPP filed an Exemption Application \31\ with 
the Commission requesting that the

[[Page 73065]]

Commission exercise its authority under section 4(c)(6) of the CEA \32\ 
and section 712(f) of the Dodd-Frank Act \33\ to exempt certain 
contracts, agreements, and transactions for the purchase or sale of 
specified electric energy products, that are offered pursuant to a 
FERC-approved Tariff, from most provisions of the Act.\34\ SPP is an 
RTO subject to regulation by FERC. As described in greater detail 
below, FERC encouraged the formation of RTOs to administer the electric 
energy transmission grid on a regional basis.\35\
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    \31\ SPP filed an amended Exemption Application on August 1, 
2014. Citations herein to ``Exemption Application'' are to the 
amended Exemption Application.
    \32\ 7 U.S.C. 6(c)(6).
    \33\ See section 712(f) of the Dodd-Frank Act.
    \34\ See Exemption Application at 1.
    \35\ See id. at 2 n.7.
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    SPP specifically requested that the Commission exempt from most 
provisions of the CEA certain ``transmission congestion rights,'' 
``energy transactions,'' and ``operating reserve transactions,'' as 
those terms are defined in the Exemption Application, if such 
transactions are offered or entered into pursuant to a Tariff under 
which SPP operates that has been approved by FERC, as well as any 
persons (including SPP, its members and its market participants) 
offering, entering into, rendering advice, or rendering other services 
with respect to such transactions.\36\ SPP asserted 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, and (b) part of, and 
inextricably linked to, SPP's delivery of electric energy and the 
organized wholesale electric energy markets that are subject to 
regulation and oversight by FERC.\37\ SPP expressly excluded from the 
Exemption Application any request for relief from the Commission's 
general anti-fraud and anti-manipulation authority, and scienter-based 
prohibitions, under sections 2(a)(1)(B), 4(d), 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 under these sections 
including, but not limited to, Commission regulations 23.410(a) and 
(b), 32.4 and part 180,\38\ and such provisions explicitly have been 
carved out of the SPP Proposed Order. SPP asserted that it is 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 Exemption Application.\39\
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    \36\ See id. at 11-15.
    \37\ See id. at 17.
    \38\ See id. at 1.
    \39\ See id. at 11.
---------------------------------------------------------------------------

    As discussed above,\40\ the relief that SPP requested is 
substantially similar to the relief the Commission granted in the RTO-
ISO Order.
---------------------------------------------------------------------------

    \40\ See supra section II.A.
---------------------------------------------------------------------------

C. SPP Proposed Order

    On May 18, 2015, the Commission issued the SPP Proposed Order.\41\ 
The exemptive relief proposed in the SPP Proposed Order was 
substantially similar to the exemptive relief granted by the Commission 
in the RTO-ISO Order.
---------------------------------------------------------------------------

    \41\ 80 FR 29490 (May 21, 2015).
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1. Transactions Proposed To Be Exempted
    In the SPP Proposed Order, the Commission proposed to exempt the 
purchase and sale of three types of SPP Covered Transactions: (1) 
Transmission Congestion Rights (``TCRs''), (2) Energy Transactions, and 
(3) Operating Reserve Transactions, each as defined below, pursuant to 
section 4(c)(6) of the CEA.\42\
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    \42\ Id. at 29493-94, 29516-17. As set forth in the SPP Proposed 
Order, SPP represents that the terms ``Transmission Congestion 
Rights,'' ``Energy Transactions,'' and ``Operating Reserve 
Transactions'' are SPP's equivalent of the following terms set forth 
in the RTO-ISO Order: ``Financial Transmission Right,'' ``Energy 
Transactions,'' and ``Reserve or Regulation Transactions,'' 
respectively. SPP also avers that its transactions are defined in a 
manner consistent with the terms set forth in the RTO-ISO Order. Id. 
at 29493 n.51.
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    A TCR \43\ was proposed to be defined as ``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 
electric energy, established on an electric energy market administered 
by SPP, at a specified source (i.e., where electric energy is deemed 
injected into SPP's grid) and a specified sink (i.e., where electric 
energy is deemed withdrawn from SPP's grid).'' \44\ As set forth in the 
SPP Proposed Order, TCRs would be exempt only where each TCR is linked 
to, and the aggregate volume of TCRs for any period of time is limited 
by, the physical capability (after accounting for counterflow) of SPP's 
electric energy transmission system for such period; SPP serves as the 
market administrator for the market on which the TCRs are transacted; 
each party to the transaction is a market participant of SPP (or is SPP 
itself) and the transaction is executed on a market administered by 
SPP; and the transaction does not require any party to make or take 
physical delivery of electric energy.\45\
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    \43\ As set forth in the SPP Proposed Order, SPP's markets will 
also include Auction Revenue Rights (``ARRs''). ARRs are allocated 
to transmission customers based on historical network load or 
transmission service reservations (or equivalent service taken under 
a grandfathered agreement between an SPP transmission owner and a 
customer). ARRs are granted exclusively to transmission service 
customers (i.e., not to other market participants or speculators) 
based on their transmission service (or grandfathered service) and 
are subject to SPP's simultaneous feasibility analysis of the 
capability of the SPP Transmission System. ARRs are not traded in 
SPP's market; instead, ARRs entitle the holder to a share of 
revenues from SPP-administered transmission congestion right 
auctions or may be ``self-converted'' at the customer's election 
into a transmission congestion right. Id. at 29493 n.52.
    \44\ Id. at 29493; see also id. at 29517. The proposed 
definition of TCR is similar to the definition of financial 
transmission right (``FTR'') in the RTO-ISO Order. However, the 
proposed definition of TCR does not include TCR options, whereas the 
RTO-ISO Order's definition of FTR includes such rights in the form 
of options. Id. at 29493 n.53; cf. RTO-ISO Order at 19913 (defining 
the term FTR to include FTRs and FTRs in the form of options).
    \45\ 80 FR at 29493.
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    ``Energy Transactions'' were proposed to be defined as transactions 
in the SPP ``Day-Ahead Market'' \46\ or ``Real-Time Balancing Market,'' 
\47\ as those terms are defined in the SPP Proposed Order, for the 
purchase or sale of a specified quantity of electric energy at a 
specified location (including virtual bids and offers) where the price 
of electric energy is established at the time the transaction is 
executed.\48\ Performance occurs in the Real-Time Balancing Market by 
either the physical delivery or receipt of the specified electric 
energy or a cash payment or receipt at the price established in the 
Day-Ahead Market or Real-Time Balancing 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 
electric energy transmission system operated by SPP for that period of 
time.\49\

    \46\ ``Day-Ahead Market'' was defined in the SPP Proposed Order 
as ``an electric energy market administered by SPP on which the 
price of electric energy at a specified location is determined, in 
accordance with SPP'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.'' Id. at 29517.
    \47\ ``Real-Time Balancing Market'' was defined in the SPP 
Proposed Order as ``an electric energy market administered by SPP on 
which the price of electric energy at a specified location is 
determined, in accordance with SPP's Tariff, for specified time 
periods within the same 24-hour period.'' Id.
    \48\ Id. at 29493; see also id. at 29517. The definition of 
Energy Transactions is similar to the definition used by the 
Commission in the RTO-ISO Order. See RTO-ISO Order at 19913.
    \49\ 80 FR at 29493; see also id. at 29517.
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    ``Operating Reserve Transactions'' were proposed to be defined 
as transactions:
    (1) In which SPP, for the benefit of load-serving entities and 
resources, purchases, through auction, the right, during a period of

[[Page 73066]]

time as specified in SPP's Tariff, to require the seller of such 
right to operate electric energy facilities in a physical state such 
that the facilities can increase or decrease the rate of injection 
or withdrawal of a specified quantity of electric energy into or 
from the electric energy transmission system operated by SPP with:
    (a) Physical performance by the seller's facilities within a 
response time interval specified in SPP'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 SPP's Day-Ahead or Real-
Time Balancing Market, as those terms are defined in the SPP 
Proposed Order, price for electric energy applicable whenever SPP 
exercises its right that electric energy be delivered (including 
``Demand Response,'' as defined in the SPP Proposed Order);
    (b) Compensation for the opportunity cost of not supplying or 
consuming electric energy or other services during any period during 
which SPP requires that the seller not supply energy or other 
services;
    (c) An upfront payment determined through the auction 
administered by SPP for this service;
    (d) An additional amount indexed to the frequency, duration, or 
other attributes of physical performance as specified in SPP's 
Tariff; and
    (3) In which the value, quantity, and specifications of such 
transactions for SPP for any period of time shall be limited to the 
physical capability of the electric energy transmission system 
operated by SPP for that period of time.\50\
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    \50\ Id. at 29517; see also id. at 29493-94.

    Finally, in the SPP Proposed Order, the Commission clarified that 
financial transactions that are not tied to the allocation of the 
physical capabilities of an electric energy transmission grid would not 
be suitable for exemption, and were therefore not covered by the SPP 
Proposed Order, because such activity would not be inextricably linked 
to the physical delivery of electric energy.\51\
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    \51\ See id. at 29494.
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2. Conditions to the SPP Proposed Order
    In the SPP Proposed Order, the Commission proposed four conditions, 
each of which is consistent with the RTO-ISO Order. First, the 
Commission proposed that all parties to the agreements, contracts, or 
transactions that are covered by the SPP Proposed Order must be 
``appropriate persons,'' as such term is defined in sections 4(c)(3)(A) 
through (J) of the Act, ``eligible contract participants,'' as such 
term is defined in section 1a(18)(A) of the Act and in Commission 
regulation 1.3(m),\52\ or persons who are in the business of: (i) 
Generating, transmitting, or distributing electric energy, or (ii) 
providing electric energy services that are necessary to support the 
reliable operation of the transmission system.\53\
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    \52\ Id. Consistent with the RTO-ISO Order, the Commission 
proposed to use its authority pursuant to CEA section 4(c)(3)(K) to 
include eligible contract participants as appropriate persons for 
the purposes of this SPP Final Order. See RTO-ISO Order at 19896, 
19913; see also 7 U.S.C. 1a(18)(A) and 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.
    \53\ 80 FR at 29494. Consistent with the RTO-ISO Order, the 
Commission also proposed to use its authority pursuant to CEA 
section 4(c)(3)(K) to include persons who are in the business of: 
(i) Generating, transmitting, or distributing electric energy, or 
(ii) providing electric energy services that are necessary to 
support the reliable operation of the transmission system. See RTO-
ISO Order at 19899, 19913, 19914.
---------------------------------------------------------------------------

    Second, the Commission proposed that the agreements, contracts, or 
transactions that are covered by the SPP Proposed Order must be offered 
or sold pursuant to SPP's Tariff, which has been approved or permitted 
to take effect by FERC.\54\
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    \54\ 80 FR at 29494.
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    Third, the Commission proposed that neither SPP's Tariff nor other 
governing documents may include any requirement that SPP notify a 
member prior to providing information to the Commission in response to 
a subpoena or other request for information or documentation.\55\
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    \55\ Id.
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    Finally, the Commission proposed that information-sharing 
arrangements that are satisfactory to the Commission between the 
Commission and FERC must remain in full force and effect.\56\ The 
Commission proposed that this condition also requires that SPP comply 
with the Commission's requests on an as-needed basis for related 
transactional and positional market data.\57\
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    \56\ Id. The CFTC and FERC signed a Memorandum of Understanding 
(``MOU'') Regarding Information Sharing and Treatment of Proprietary 
Trading and Other Information on January 2, 2014 (``CFTC-FERC 
Information Sharing MOU''), which addresses the sharing of 
information in connection with market surveillance and 
investigations into potential market manipulation, fraud, or abuse. 
The MOU is available at http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/cftcfercismou2014.pdf.
    \57\ 80 FR at 29494.
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3. Additional Limitations
    In the SPP Proposed Order, the Commission expressly noted that the 
proposed exemption was based upon the representations made in the 
Exemption Application and in the supporting materials provided by SPP 
and its counsel, and that any material change or omission in the facts 
and circumstances that alter the grounds for the SPP Proposed Order 
might require the Commission to reconsider its finding that the 
exemption contained therein is appropriate and/or in the public 
interest and consistent with the purposes of the CEA.\58\ The 
Commission highlighted several of SPP's representations as being of 
particular importance, including: (1) The exemption sought by SPP 
relates to the transactions described in the SPP Proposed Order, which 
are primarily entered into by commercial participants that are in the 
business of generating, transmitting, and distributing electric energy; 
\59\ (2) SPP was established for the purpose of providing affordable, 
reliable electric energy to consumers within its geographic region; 
\60\ (3) the transactions described in the SPP Proposed Order are an 
essential means, designed by FERC as an integral part of its statutory 
responsibilities, to enable the reliable delivery of affordable 
electric energy; \61\ (4) each of the transactions defined in the SPP 
Proposed Order taking place on SPP's markets is monitored by both a 
market administrator (SPP) and an independent market monitor (``SPP 
Market Monitor'') responsible to FERC; \62\ and (5) each transaction 
defined in the SPP Proposed Order is directly tied to the physical 
capabilities of SPP's electric energy grid.\63\
---------------------------------------------------------------------------

    \58\ See id.; see also id. at 29518. These limitations are 
consistent with the RTO-ISO Order. See RTO-ISO Order at 19914-15.
    \59\ See 80 FR at 29494; see also Exemption Application at 17.
    \60\ See 80 FR at 29494; see also Exemption Application at 2, 
17.
    \61\ See 80 FR at 29494; see also generally FERC Order No. 888; 
FERC Order No. 2000; 18 CFR 35.34(k)(2); Exemption Application at 
17.
    \62\ See 80 FR at 29494; see also Exemption Application at 17.
    \63\ See 80 FR at 29494; see also Exemption Application at 12-
15.
---------------------------------------------------------------------------

    In the SPP Proposed Order, the Commission explicitly reserved the 
authority to, in its discretion, revisit any of the terms of the relief 
provided by the SPP Proposed Order, including, but not limited to, 
making a determination that certain entities and transactions should be 
subject to the Commission's jurisdiction.\64\ The Commission also 
explicitly reserved the authority to, in its discretion, suspend, 
terminate, or otherwise modify or restrict the exemption granted in the 
SPP Proposed Order.\65\ Finally, the Commission announced its intention 
to exclude from the exemptive relief its general anti-fraud and anti-
manipulation authority,

[[Page 73067]]

and scienter-based prohibitions, under the CEA over SPP and the 
transactions defined in the SPP Proposed Order, including sections 
2(a)(1)(B), 4(d), 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 CEA and any implementing regulations 
promulgated thereunder including, but not limited to, Commission 
regulations 23.410(a) and (b), 32.4, and part 180.\66\
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    \64\ See 80 FR at 29518.
    \65\ See id.
    \66\ See id. at 29515, 29516.
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    The Commission explained in the SPP Proposed Order that neither the 
proposed nor the final RTO-ISO Order discussed, referred to, or 
mentioned CEA section 22, which provides for private rights of action 
for damages against persons who violate the CEA, or persons who 
willfully aid, abet, counsel, induce, or procure the commission of a 
violation of the Act.\67\ The Commission explained that by enacting CEA 
section 22, Congress provided private rights of action as a means for 
addressing violations of the Act as an alternative or supplement to 
Commission enforcement action.\68\ The Commission observed that it 
would be highly unusual for the Commission to reserve to itself the 
power to pursue claims for fraud and manipulation--a power that 
includes the option of seeking restitution for persons who have 
sustained losses from such violations or a disgorgement of gains 
received in connection with such violations--while at the same time, 
without explanation, denying private rights of action and damages 
remedies for the same violations.\69\ The Commission stated that if it 
intended to take such a differentiated approach (i.e., to limit the 
rights of private persons to bring such claims while reserving to 
itself the right to bring the same claims), the RTO-ISO Order would 
have included a discussion or analysis of the reasons therefore.\70\ 
The Commission therefore stated that, in the Commission's view, the 
RTO-ISO Order does not prevent private claims for fraud or manipulation 
under the CEA.\71\ The Commission further stated that this view would 
apply equally to the SPP Proposed Order.\72\
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    \67\ Id. at 29493.
    \68\ Id.
    \69\ Id.
    \70\ Id.
    \71\ Id.
    \72\ Id.
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    D. Aspire v. GDF Suez
    In February 2015, the United States District Court for the Southern 
District of Texas dismissed a private lawsuit on the ground that the 
CEA section 22 private right of action was not available to the 
plaintiffs under the RTO-ISO Order.\73\ The lawsuit alleged that 
certain electricity generators in ERCOT's market manipulated the market 
price of electricity by, among other things, intentionally withholding 
electricity generation during times of tight supply.\74\ The suit 
further alleged that this conduct created artificial and unpredictable 
prices in the secondary futures markets.\75\ The claim thus alleged 
that defendants were manipulating contract prices in the derivatives 
commodities market in violation of the Act.\76\ The District Court 
dismissed the claim, finding that under the RTO-ISO Order, the private 
right of action in CEA section 22 was ``unavailable to [p]laintiffs.'' 
\77\ In February 2016, the United States Court of Appeals for the Fifth 
Circuit affirmed the District Court's ruling.\78\
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    \73\ Aspire Commodities, L.P. v. GDF Suez Energy N. Am., Inc., 
No. H-14-1111, 2015 WL 500482 (S.D. Tex. Feb. 3, 2015).
    \74\ Id. at *1-*2.
    \75\ Id. at *2.
    \76\ See id.
    \77\ Id. at *5.
    \78\ See Aspire Commodities, L.P. v. GDF Suez Energy N. Am., 
Inc., No. 15-20125, 640 F. App'x 358 (5th Cir. Feb. 25, 2016).
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E. RTO-ISO Order Proposed Amendment

    On May 9, 2016, the Commission issued a notice of proposed order 
and request for comment which proposed to amend the text of the RTO-ISO 
Order to explicitly provide that the RTO-ISO Order does not exempt the 
entities covered under the RTO-ISO Order from the private right of 
action found in section 22 of the CEA\79\ with respect to the Excepted 
Provisions.\80\
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    \79\ 7 U.S.C. 25.
    \80\ 81FR 30245.
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    In the RTO-ISO Order Proposed Amendment, the Commission noted that, 
currently, Paragraph 1 of the RTO-ISO Order states that the Commission:

Exempts, subject to the conditions and limitations specified herein, 
the execution of the electric energy-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 and anti-manipulation authority, and scienter-
based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these 
sections including, but not limited to, Commission regulations 
23.410(a) and (b), 32.4, and part 180.\81\
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    \81\ 81 FR at 30247; see also RTO-ISO Order at 19912.

    The RTO-ISO Order Proposed Amendment stated that, under the RTO-ISO 
Order, for those CEA requirements from which the RTOs and ISOs are 
exempt, there can be no claim under CEA section 22 with respect to 
those requirements.\82\ The Commission further stated RTO-ISO Order did 
not specifically note that the exemption contained therein did not 
apply to actions pursuant to CEA section 22 with respect to the 
Excepted Provisions.\83\
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    \82\ 81 FR 30247.
    \83\ Id.
---------------------------------------------------------------------------

    In light of the Aspire court ruling discussed above,\84\ in the 
RTO-ISO Order Proposed Amendment, the Commission proposed to amend the 
text of the RTO-ISO Order to clarify that the RTO-ISO Covered Entities 
are not exempt from the private right of action in CEA section 22 with 
respect to the Excepted Provisions. Specifically, the Commission 
proposed to amend Paragraph 1 of the RTO-ISO Order to read as follows 
(the additional language is italicized):
---------------------------------------------------------------------------

    \84\ See supra section II.D.

Exempts, subject to the conditions and limitations specified herein, 
the execution of the electric energy-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 and anti-manipulation authority, and scienter-
based prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these 
sections including, but not limited to, Commission regulations 
23.410(a) and (b), 32.4, and part 180. This exemption also does not 
apply to actions pursuant to CEA section 22 with respect to the 
foregoing enumerated provisions.\85\
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    \85\ 81 FR 30248. The RTO-ISO Order Proposed Amendment did not 
alter any of the other terms or conditions of the RTO-ISO Order.

The Commission proposed the foregoing amendment to the RTO-ISO Order in 
order to ensure clarity.\86\ In addition, the RTO-ISO Order Proposed 
Amendment gave the following additional reasons for proposing the 
amendment: (1) Amending the RTO-ISO Order to explicitly preserve the 
private right of action with respect to fraud and manipulation would 
not cause regulatory uncertainty or duplicative or inconsistent 
regulation; (2) conflicting judicial interpretations regarding the 
nature of the RTO-ISO Covered Transactions would not affect the 
jurisdiction of FERC or any relevant state regulatory authority; (3) 
the private

[[Page 73068]]

right of action in the CEA is instrumental in protecting the American 
public, deterring bad actors, and maintaining the credibility of the 
markets subject to the Commission's jurisdiction; (4) the private right 
of action under CEA section 22 was established by Congress as an 
integral part of the CEA's enforcement and remedial scheme; and (5) the 
Commission's preservation of section 22 liability with respect to the 
Excepted Provisions is consistent with the Commission's actions in 
prior 4(c) orders.\87\
---------------------------------------------------------------------------

    \86\ Id.
    \87\ See id. at 30248-49.
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III. Summary of Comments

A. Overview of Comments

    The Commission requested public comments on both the SPP Proposed 
Order and the RTO-ISO Order Proposed Amendment.
    The public comment period on the SPP Proposed Order ended on June 
22, 2015. The Commission received thirteen (13) comment letters on the 
SPP Proposed Order from twelve (12) commenters,\88\ the majority of 
which provided general support for the proposed exemption.\89\ The 
comment letters on the SPP Proposed Order addressed the following 
issues: preservation of the private right of action found in section 22 
of the CEA; the Commission's jurisdiction; and the use of the term 
``member'' in the SPP Proposed Order. In determining the scope and 
content of the SPP Final Order, the Commission has taken into account 
the issues raised by commenters.
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    \88\ All comment letters are available through the Commission's 
Web site at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1586. Comments addressing the SPP Proposed Order 
were received from: Aspire Commodities, LP (``Aspire (1)''); 
Association of Electric Companies of Texas, Inc. (``AECT''); 
Coalition of Physical Energy Companies (``COPE''); Staff of the 
Federal Energy Regulatory Commission (``FERC Staff (1)''); First 
Principles Economics, LLC (``First Principles''); GDF Suez Energy 
North America, Inc. (``GSENA (1)''); International Energy Credit 
Association (``IECA (1)''); Joint Trade Associations (collectively 
referring to the American Public Power Association, Edison Electric 
Institute, Electric Power Supply Association, and the National Rural 
Electric Cooperative Association); Public Utility Commission of 
Texas (``PUCT (1)''); RTO-ISO Commenters (collectively referring to 
PJM Interconnection, L.L.C., Electric Reliability Council of Texas, 
Inc., and the California Independent System Operator Corporation); 
SPP; and Texas Competitive Power Advocates (``TCPA''). COPE 
submitted an original comment letter on June 22, 2015 and submitted 
a second comment letter on June 23, 2015. The second comment letter, 
which was dated June 22, 2015, contained a correction to the version 
of COPE's comment letter that was originally submitted, and 
therefore superseded COPE's original comment letter. The corrected 
version of COPE's comment letter is herein referred to as ``COPE 
(1).'' COPE submitted a third comment letter after the expiration of 
the comment period, on June 25, 2015.
    \89\ See, e.g., Aspire at 1; AECT at 1; COPE (1) at 2; First 
Principles at 1; GSENA (1) at 2; IECA at 3; Joint Trade Associations 
at 2; PUCT (1) at 2; SPP at 1; and TCPA at 2.
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    The public comment period on the RTO-ISO Order Proposed Amendment 
ended on June 15, 2016. The Commission received forty-eight (48) 
comment letters on the RTO-ISO Order Proposed Amendment from forty-six 
(46) commenters,\90\ all of which addressed the proposed preservation 
of the private right of action found in section 22 of the CEA. In 
determining the scope and content of the Amended RTO-ISO Order, and the 
scope and content of the portions of the SPP Final Order related to the 
private right of action, the Commission has taken into account the 
issues raised by commenters.
---------------------------------------------------------------------------

    \90\ All comment letters are available through the Commission's 
Web site at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1697. Comments addressing the RTO-ISO Order 
Proposed Amendment were received from: AKCSC; American Electric 
Power Company, Inc. (``AEP''); American Gas Association (``AGA''); 
Arizona Electric Power Cooperative, Inc.; Aspire Commodities, LP 
(``Aspire (2)'') Basin Electric Power Cooperative (``Basin''); 
Better Markets; Catherine Corn; bilmem ne; Coalition of Physical 
Energy Companies (``COPE (2)''); Commercial Energy Working Group 
(``CEWG''); Delaware Division of the Public Advocate, Indiana Office 
of Utility Consumer Counselor, Maryland Office of People's Counsel, 
Office of People's Counsel for the District of Columbia, New Jersey 
Division of Rates Council, Pennsylvania Office of Consumer Advocate, 
Consumer Advocate Division of the Public Service Commission of West 
Virginia (``PJM JCA''); East Kentucky Power Cooperative, Inc.; East 
Texas Electric Cooperative, Inc.; Edison Electric Institute 
(``EEI''); Electric Power Supply Association (``EPSA''); Exelon 
Generation Company (``Exelon''); Staff of the Federal Energy 
Regulatory Commission Staff (``FERC Staff (2)''); GDF Suez Energy 
North America, Inc. (``GSENA (2)''); Golden Spread Electric 
Cooperative (``Golden Spread''); Hoosier Energy Rural Electric 
Cooperative, Inc.; International Energy Credit Association (``IECA 
(2)''); ISO/RTO Council (``IRC''); ITC Great Plains, LLC (``ITC''); 
Kansas City Power & Light Company (``KCP&L''); Large Public Power 
Council (``LPPC''); Minnkota Power Cooperative, Inc.; MISO 
Transmission Owners; Missouri Joint Municipal Electric Utility 
Commission (``MJMEUC''); National Association of Regulatory Utility 
Commissioners (``NARUC''); National Rural Electric Cooperative 
Association and American Public Power Association (collectively, the 
``NFP Electric Associations''); North Carolina Electric Membership 
Corporation; Oklahoma Municipal Power Authority (``OMPA''); Old 
Dominion Electric Cooperative; Omaha Public Power District 
(``OPPD''); Prairie Power, Inc.; PSEG Companies (``PSEG''); Public 
Utility Commission of Texas (``PUCT (2)''); Raiden Commodities 
(``Raiden''); Southern Illinois Power Cooperative; Sunflower 
Electric Power Corporation; Tenaska Energy, Inc. (``Tenaska''); 
Texas Industrial Energy Consumers (``TIEC''); Westar Energy, Inc. 
(``Westar''); Western Farmers Electric Cooperative; and Xcel Energy 
Services Inc. (``Xcel''). Both Exelon and Golden Spread submitted 
two duplicate comments; any reference to either commenter below 
refers to the letter attachment on the Commission's Web site at the 
above link. In addition, twelve electric cooperatives submitted 
substantively identical comment letters: Arizona Electric Power 
Cooperative, Inc., East Kentucky Power Cooperative, Inc., East Texas 
Electric Cooperative, Inc., Golden Spread Electric Cooperative, 
Inc., Hoosier Energy Rural Electric Cooperative, Inc., Minnkota 
Power Cooperative, Inc., North Carolina Electric Membership 
Corporation, Old Dominion Electric Cooperative, Prairie Power, Inc., 
Southern Illinois Power Cooperative, Sunflower Electric Power 
Corporation, and Western Farmers Electric Cooperative. These twelve 
commenters are collectively referred to in the discussion that 
follows as the ``Electric Cooperative Commenters,'' and any 
citations to such commenters are to the letter of the Arizona 
Electric Power Cooperative.
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B. Private Right of Action Under CEA Section 22

1. Summary of Comments
    In response to the SPP Proposed Order, a number of commenters 
objected to the inclusion in the SPP Proposed Order of language 
proposing to preserve, in the RTO-ISO Order, private rights of action 
under CEA section 22 with respect to the Excepted Provisions, and these 
commenters asked that such language not be included in the SPP Final 
Order.\91\ Some commenters asserted that the Commission's proposed 
clarification of the RTO-ISO Order would deprive the RTOs and ISOs of 
due process and the right to comment on this aspect of the RTO-ISO 
Order. The Joint Trade Associations, for example, argued that the 
Commission's preservation of a private right of action under section 22 
of the CEA in the proposed exemption would retroactively impose 
requirements that were not contemplated or discussed in prior 
proceedings.\92\ GSENA likewise stated that the Commission cannot 
retroactively alter the RTO-ISO Order ``by simply reciting its belief 
or intent.'' \93\ COPE echoed this objection.\94\ A number of 
commenters asserted that the language regarding the preservation of 
private rights of action under CEA section 22 would amount to a 
retroactive alteration of the RTO-ISO Order, so the Commission should 
have provided notice to market participants and an opportunity to 
comment on the alteration.\95\ Also, commenters argued that the 
inclusion in the SPP Proposed Order of language stating that the intent 
of the RTO-ISO Order was to preserve such private rights of action 
would be

[[Page 73069]]

contrary to the plain meaning of the RTO-ISO Order.\96\ In addition, in 
response to the SPP Proposed Order, commenters asserted that allowing 
private rights of action could (1) create a regulatory conflict that 
would be inconsistent with Congress' directive that the CFTC and FERC 
coordinate their actions to avoid conflicting or duplicative 
regulation; \97\ (2) give rise to inconsistent rulings among the 
Commission, FERC, state regulatory agencies and federal district courts 
regarding the regulatory scheme for transactions in the RTO-ISO 
markets; \98\ (3) adversely affect the ability of the Commission and 
FERC to determine under the CFTC-FERC jurisdictional MOU \99\ how to 
exercise their respective authorities; \100\ (4) result in inconsistent 
court decisions; \101\ (5) be costly; \102\ and (6) be inconsistent 
with other orders issued by the Commission pursuant to the authority in 
CEA section 4(c).\103\ Separately, in response to the SPP Proposed 
Order, FERC Staff raised concerns about the effect of allowing private 
rights of action under CEA section 22 on FERC's regulatory authority, 
and requested that the Commission clarify that its action on SPP's 
application does not limit or otherwise affect FERC's authority.\104\
---------------------------------------------------------------------------

    \91\ See, e.g., Joint Trade Associations at 5; COPE (1) at 3, 5; 
GSENA (1) at 3; PUCT (1) at 3.
    \92\ Joint Trade Associations at 5.
    \93\ GSENA (1) at 3.
    \94\ COPE (1) at 5 (``[A] retroactive statement of agency 
intent'' is not sufficient to change the plain meaning of the RTO-
ISO Order).
    \95\ Joint Trade Associations at 5-6; COPE (1) at 5; IECA (1) at 
2; RTO-ISO Commenters at 3; PUCT (1) at 4.
    \96\ See, e.g., Joint Trade Associations at 5; COPE (1) at 3; 
PUCT (1) at 3-4.
    \97\ Joint Trade Associations at 7; IECA at 3.
    \98\ RTO-ISO Commenters at 5.
    \99\ Memorandum of Understanding Between the Federal Energy 
Regulatory Commission and the Commodity Futures Trading Commission 
(``CFTC-FERC Jurisdictional MOU''), Jan. 2, 2014, available at 
http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/cftcfercjmou2014.pdf.
    \100\ RTO-ISO Commenters at 5-6; 9-10.
    \101\ Joint Trade Associations at 6; RTO-ISO Commenters at 8-9.
    \102\ COPE (1) at 4; PUCT (1) at 6.
    \103\ RTO-ISO Commenters at 6-7.
    \104\ FERC Staff (1) at 2.
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    In light of the comments received with respect to the SPP Proposed 
Order, the Commission proposed an amendment to the RTO-ISO Order to 
address the private right of action issue directly and to solicit 
further comment from the public on that issue.
    As noted above, the Commission received comments in response to the 
RTO-ISO Order Proposed Amendment. Specifically, a number of commenters 
asserted that the private right of action is not necessary in the 
context of the RTO-ISO markets given the comprehensive regulatory 
scheme to which those markets are subject. For example, IRC asserted 
that the RTO-ISO markets are ``comprehensively regulated'' by FERC and 
PUCT, with substantial enforcement tools, resources, and 
experience.\105\ According to several commenters, FERC's broad 
enforcement authority over the RTO-ISO markets, including the authority 
to conduct investigations, re-settle markets, grant refunds, order 
disgorgement, impose civil penalties, and refer cases to the Department 
of Justice for criminal prosecution, renders the private right of 
action unnecessary in such markets.\106\ In addition, FERC Staff noted 
that section 206 of the Federal Power Act (``FPA'') authorizes FERC to 
determine, either on its own motion or as a result of a complaint, that 
an existing rate or market feature is unjust and unreasonable, and to 
establish prospectively a just and reasonable rate.\107\ Similarly, 
PUCT argued that it has an established complaint process to accommodate 
claims of fraud and manipulation.\108\ More broadly, commenters 
asserted that both FERC and PUCT have sufficient processes in place for 
private parties to air their concerns.\109\ Commenters also noted that 
the RTO-ISO markets are subject to an additional layer of oversight by 
independent market monitors, which are tasked with tracking the 
behavior of RTO-ISO market participants and reporting suspicious 
behavior to FERC or PUCT.\110\ On the other hand, Aspire, Better 
Markets, and Raiden asserted that the private right of action protects 
market participants by deterring fraudulent or manipulative conduct in 
the RTO-ISO markets, and that private rights of action serve as a vital 
tool to augment the Commission's limited resources.\111\ Aspire and 
Raiden further argued that market participants are in the best position 
to observe and take action with respect to market manipulation, and 
that they are properly incentivized to bring private claims to seek 
compensation for any damages suffered.\112\
---------------------------------------------------------------------------

    \105\ IRC at 5-6. The IRC also argued that a Commission order 
should not be amended, expanded, or withdrawn absent a change in the 
law or the facts underlying the order. Id. at 12.
    \106\ See, e.g., EPSA at 4; GSENA (2) at 3; MISO Transmission 
Owners at 5; PSEG at 2.
    \107\ FERC Staff (2) at 3.
    \108\ PUCT (2) at 11.
    \109\ See, e.g., AGA at 3; EPSA at 5; GSENA (2) at 3; PUCT (2) 
at 11.
    \110\ See, e.g., EEI at 10; PJM JCA at 4; MISO Transmission 
Owners at 5-6; PUCT (2) at 11-12; Xcel at 2.
    \111\ Aspire (2) at 2; Better Markets at 2-3; Raiden at 4.
    \112\ Aspire (2) at 6; Raiden at 6.
---------------------------------------------------------------------------

    In addition, several commenters argued that preserving the CEA 
section 22 private right of action in this context would result in 
regulatory and/or legal uncertainty. A number of commenters asserted 
that private rights of action could disrupt the regulatory framework in 
place over the RTO-ISO markets,\113\ undermine the efficiency and 
effectiveness of the RTO-ISO markets,\114\ interfere with FERC's and 
PUCT's ability to maintain the integrity and efficiency of the RTO-ISO 
markets,\115\ and interfere with FERC's and PUCT's ability to determine 
how the transactions in the RTO-ISO markets should be regulated so as 
to produce just and reasonable rates.\116\ Several commenters asserted 
that a judicial determination regarding the nature of the transactions 
in the RTO-ISO markets (i.e., whether a particular transaction is a 
swap) could affect FERC's or PUCT's jurisdiction over such 
transactions.\117\ In response to the Commission's question regarding 
the effect of the CEA's savings clause on such concerns, several 
commenters expressed the view that such clause is subject to differing 
interpretations, and as such, it is not clear how a court would 
interpret the interaction between the savings clause in CEA section 
2(a)(1)(I) and the ``exclusive jurisdiction'' language in section 
2(a)(1)(A).\118\ Better Markets and Aspire, on the other hand, argued 
that allowing private rights of action in the RTO-ISO markets would not 
blur the boundaries of the Commission's and FERC's jurisdiction over 
such markets, and that the savings clause in CEA section 2(a)(1)(I) 
would prevent any judicial interpretations regarding the nature of the 
transactions in the RTO-ISO markets from affecting FERC's or PUCT's 
jurisdiction over such transactions.\119\ Separately, FERC Staff 
requested that, if the Commission were to amend the RTO-ISO Order to 
provide a private right of action under the CEA in the RTO-ISO markets, 
the Commission reiterate in its final order that the Commission does 
not have exclusive jurisdiction over transactions covered by the RTO-
ISO Order.\120\
---------------------------------------------------------------------------

    \113\ See, e.g., Basin at 1; EEI at 8; ITC at 2; OMPA at 1; TIEC 
at 1-2.
    \114\ Westar at 2.
    \115\ EPSA at 8.
    \116\ IRC at 8.
    \117\ See, e.g., EEI at 7; IRC at 9; MISO Transmission Owners at 
12.
    \118\ See, e.g., MISO Transmission Owners at 12; PUCT at 11.
    \119\ Better Markets at 3-4; Aspire at 7.
    \120\ FERC Staff (2) at 4.
---------------------------------------------------------------------------

    Separately, a number of commenters argued that permitting private 
actions under CEA section 22 against RTO-ISO market participants could 
result in conflicting or inconsistent court decisions.\121\ In 
addition, commenters

[[Page 73070]]

claimed that allowing private rights of action in the RTO-ISO markets 
could provide an opportunity for private plaintiffs to collaterally 
attack market rules, tariffs, or filed rates that have been approved or 
permitted to take effect by the relevant regulator.\122\ Such a result, 
commenters argued, could make it difficult for market participants to 
rely on the established market rules, resulting in a chilling effect on 
otherwise appropriate market behavior, and could inject uncertainty and 
instability into the RTO-ISO markets.\123\ Several commenters also 
suggested that private rights of action could create an opportunity for 
courts to second-guess policy decisions made by FERC and PUCT,\124\ or 
for private litigants to force judicial revision of RTO-ISO market 
rules with which they disagree.\125\ Aspire and Better Markets argued, 
on the other hand, that the private right of action does not present 
any increased risk of inconsistent judicial decisions, as the 
Commission already has the authority to bring actions under the fraud 
and manipulation provisions that are reserved in the RTO-ISO 
Order.\126\
---------------------------------------------------------------------------

    \121\ See, e.g., AGA at 3-4; PUCT (2) at 5.
    \122\ See, e.g., AEP at 2; AGA at 3; COPE (2) at 6, 7; EPSA at 
7; Exelon at 2; GSENA at 2; IRC at 10; MISO Transmission Owners at 
7; OPPD at 5; PUCT (2) at 5; Tenaska at 2; Westar at 3. In response 
to the Commission's request for comments regarding the filed rate 
doctrine, the IRC and PUCT noted that courts have identified several 
exceptions to the filed rate doctrine, so there is no guarantee that 
a federal judge would grant a motion to dismiss based on such 
doctrine. IRC at 11; PUCT (2) at 10-11; see also MISO Transmission 
Owners at 11-12. The IRC further argued that, to the extent the 
filed rate doctrine would bar the types of private claims brought 
under CEA section 22, such a fact would undercut the rationale for 
allowing such private claims. IRC at 11.
    \123\ See, e.g., PUCT (2) at 5; MISO Transmission Owners at 7; 
COPE (2) at 7; EPSA at 7; GSENA (2) at 2-3; OMPA at 3; OPPD at 5; 
PSEG at 3; Tenaska at 2-3; TIEC at 3-4; Xcel at 3.
    \124\ AGA at 4; TIEC at 3.
    \125\ EEI at 10.
    \126\ Aspire at 7; Better Markets at 3.
---------------------------------------------------------------------------

    Furthermore, a number of commenters argued that allowing private 
rights of action in the RTO-ISO markets would be contrary to 
congressional intent. Several commenters pointed out that the FPA 
expressly prohibits private rights of action; thus, commenters argued 
that allowing CEA section 22 private actions in the RTO-ISO markets 
would be contrary to the express intent of Congress.\127\ Commenters 
also urged that allowing private rights of action would create a 
regulatory conflict that is inconsistent with Congress' directive that 
the CFTC and FERC coordinate their actions to avoid conflicting or 
duplicative regulation,\128\ and would adversely affect the ability of 
the Commission and FERC to determine under the CFTC-FERC Jurisdictional 
MOU \129\ how to exercise their respective authorities.\130\ On the 
other hand, Better Markets argued that preserving the private right of 
action would not be contrary to congressional intent, since Congress 
specifically included a private right of action in the CEA.\131\
---------------------------------------------------------------------------

    \127\ See, e.g., CEWG at 2; EEI at 8; Exelon at 2; IRC at 6; 
KCP&L at 7; MISO Transmission Owners at 9; IECA at 4; FERC Staff (2) 
at 2-3.
    \128\ AGA at 3; CEWG at 5; FERC Staff (2) at 3.
    \129\ See supra note 99.
    \130\ OPPD at 2-3; FERC Staff (2) at 2.
    \131\ Better Markets at 3.
---------------------------------------------------------------------------

    Several commenters also claimed that preserving the CEA section 22 
private right of action would be inconsistent with prior Commission 
action. According to EEI, the RTO-ISO Order was consistent with 
previous orders issued by the Commission in that it did not contain any 
reference to or discussion of CEA section 22.\132\ EEI further pointed 
to a grant of temporary exemptive relief from provisions of the CEA 
added or amended by Title VII of the Dodd-Frank Act that referenced 
certain terms that the Commission had not yet defined.\133\ That order 
expressly stated that ``[t]o the extent that the Final Order provides 
[4(c)] exemptive relief [from certain provisions of the CEA], such 
exemptive relief would, in effect, preclude a person from succeeding in 
a private right of action under CEA section 22(a) for violation of such 
provisions.'' \134\ Both the IRC and EEI noted that the Commission has 
only expressly preserved the CEA section 22 private right of action in 
two prior 4(c) orders, both of which were superseded by Congress.\135\ 
The IRC claimed that it is not unusual for the Commission to reserve 
its own authority to address fraud and manipulation without also 
reserving private litigants' right to do so.\136\ COPE argued that 
there is no valid policy argument to require all orders issued under 
CEA section 4(c) to be the same.\137\ EPSA echoed this argument, noting 
that the Commission's actions in prior 4(c) orders should not control 
its decision on the private right of action here.\138\
---------------------------------------------------------------------------

    \132\ EEI at 6.
    \133\ Effective Date for Swap Regulation, 76 FR 42508, July 19, 
2011.
    \134\ EEI at 6-7.
    \135\ EEI at 7 n.19; IRC at 12 n.32.
    \136\ IRC at 12.
    \137\ COPE (2) at 8.
    \138\ EPSA at 11.
---------------------------------------------------------------------------

    A number of commenters addressed the cost implications of allowing 
private rights of action in the RTO-ISO markets. For instance, several 
commenters argued that allowing private actions in the RTO-ISO markets 
would be costly, and that costs will be passed onto electricity 
consumers.\139\ The Electric Cooperative Commenters noted that costs 
will arise due to private litigation whether or not a private plaintiff 
can prove that market manipulation occurred.\140\ In addition, COPE 
asserted that private litigants could be motivated in part by monetary 
gain, whereas FERC, PUCT, and the Commission are motivated by the 
public interest.\141\ A number of commenters further asserted that 
consumers will bear the indirect costs of increased private litigation 
in the RTO-ISO markets, claiming that such costs would include indirect 
costs due to (1) increased regulatory uncertainty; \142\ (2) increased 
risk; \143\ (3) decreased liquidity in RTO-ISO products that are used 
to hedge and manage risk as market participants limit or forego 
activity in the RTO-ISO markets; \144\ and (4) court decisions forcing 
RTOs and ISOs to change their infrastructure.\145\ PUCT also argued 
that allowing private litigants to bring actions against participants 
in the RTO-ISO markets would increase the costs associated with 
operating those markets.\146\ On the other hand, Better Markets argued 
that if the private right of action were available, market participants 
would not incur any increased costs of compliance because they would 
already be on notice of, and complying with, the fraud and manipulation 
provisions in the CEA.\147\
---------------------------------------------------------------------------

    \139\ See, e.g., AGA at 4; CEWG at 4; EPSA at 5-6; Exelon at 3-
4; IRC at 10; KCP&L at 4; MISO Transmission Owners at 9; MJMEUC at 
3; NFP Electric Associations at 6; PUCT (2) at 5; and TIEC at 4.
    \140\ Electric Cooperative Commenters at 3. The Electric 
Cooperative Commenters also requested that, if the Commission were 
to allow private rights of action under CEA section 22 in the RTO-
ISO markets, such actions not be allowed (1) against commercial end-
user-only entities, or (2) to challenge commercial-end-user-only 
hedging transactions. Id.
    \141\ COPE (2) at 6; see also AEP at 2-3; EEI at 11; NFP 
Electric Associations at 5-6; Xcel at 3.
    \142\ AEP at 2.
    \143\ Exelon at 3-4.
    \144\ Id.
    \145\ EPSA at 6.
    \146\ PUCT (2) at 5.
    \147\ Better Markets at 3.
---------------------------------------------------------------------------

    Lastly, Xcel and GSENA argued that allowing private rights of 
action in the RTO-ISO markets would ultimately result in reduced 
investment in renewable and efficient energy.\148\
---------------------------------------------------------------------------

    \148\ Xcel at 3-4; GSENA (2) at 4.
---------------------------------------------------------------------------

2. Commission Determination
    The Commission has determined, in the limited context of the RTO-
ISO markets which are the subject of the Amended RTO-ISO Order and the 
SPP

[[Page 73071]]

Final Order, to issue a complete exemption from the private right of 
action in CEA section 22, including with respect to claims based on 
fraud or manipulation. The Commission is persuaded by several factors 
raised by the commenters. Considering all of these factors together, 
rather than any of these factors alone, or any subset of these factors, 
the Commission concludes that in the limited context of activities 
within the RTO-ISO markets, there should be a complete exemption from 
private claims under CEA section 22.
    Initially, the Commission agrees that the unique nature of the RTO-
ISO markets differentiates this issue from other contexts in which a 
private right of action is essential.
    The RTO-ISO markets are heavily regulated by FERC and PUCT, with 
whom the Commission shares jurisdiction. This regulation is 
``pervasive'' and it includes rate monitoring, tariff approval, 
authorization of market rules and pricing mechanisms, and real-time 
oversight of markets.\149\ As part of an articulated regulatory 
structure, these markets are also subject to close surveillance not 
only by the regulators but also by independent market monitors.\150\ In 
addition, FERC and PUCT support their regulation of the electric power 
markets with an enforcement program that includes the authority to 
order civil penalties, disgorgement, and to resettle the market.\151\
---------------------------------------------------------------------------

    \149\ FERC Staff (2) at 1-3.
    \150\ E.g., FERC Staff (2) at 2; PJM JCA at 4; PUCT (2) at 11-
12.
    \151\ FERC Staff (2) at 2; EPSA at 3-4.
---------------------------------------------------------------------------

    Furthermore, the Commission will continue to police these markets 
for fraud, manipulation and other unfair trading activities and, as 
contemplated by Congress, it can and will cooperate with these fellow 
regulators to deter and prevent unlawful trading activities in the RTO-
ISO markets. In the same vein, the Commission and FERC both have the 
authority to take enforcement action, and to seek restitution on behalf 
of injured market participants that fall in their jurisdiction.\152\
---------------------------------------------------------------------------

    \152\ 7 U.S.C. 13a-1(d)(3) (Commission authority to seek 
restitution); 16 U.S.C. 825h (describing FERC's remedial authority 
under the FPA); Pub. Util. Comm'n of Cal. v. FERC, 462 F.3d 1027, 
1047-48 (9th Cir. 2006) (holding that section 309 of the FPA 
authorizes FERC to order restitution for profits gained as a result 
of a statutory or tariff violation); see also Consol. Edison Co. of 
N.Y., Inc. v. FERC, 347 F.3d 964, 967 (D.C. Cir. 2003) (same).
---------------------------------------------------------------------------

    Moreover, the Commission is further persuaded to issue an express 
exemption from the private right of action in the context of the RTO-
ISO markets because private rights of action appear in tension with the 
intent of Congress in this context. In 2005, Congress amended the FPA 
to give FERC the authority to pursue manipulation of the electricity 
markets.\153\ At that time, Congress focused on whether there should be 
a private right of action for manipulation of these specific markets. 
Congress explicitly declined to grant such a right of action.\154\ This 
was a more particularized determination regarding the merits of private 
enforcement in these unique markets than the legislative judgment 
reflected in CEA section 22 that there should be a generally applicable 
private right of action for fraud and manipulation in the Commission's 
jurisdictional markets.
---------------------------------------------------------------------------

    \153\ E.g., FERC Staff (2) at 2-3 & n.2.
    \154\ Id.
---------------------------------------------------------------------------

    Finally, the Commission is persuaded that there is a potential for 
private rights of action regarding the entities and transactions in the 
RTO-ISO markets to interfere with FERC and PUCT oversight of these 
markets. Based on the totality of these factors, the Commission 
concludes that in the limited context of activities within these unique 
markets, there should be a complete exemption from private claims under 
CEA section 22.
    The Commission's determination regarding the CEA section 22 private 
right of action does not in any way affect the Commission's own 
authority to address fraudulent or manipulative conduct in these 
markets within the Commission's jurisdiction And, in cooperation with 
electricity regulators, the Commission will remain vigilant in policing 
these markets for fraud, manipulation and other illegal activity.
    In addition, in light of the above, the Commission encourages 
market participants who observe potential fraud or manipulation in the 
markets subject to the Commission's jurisdiction to bring their 
concerns to the Commission. The whistleblower provisions of the 
Commodity Exchange Act and Commission regulations continue to apply in 
this context and are available pursuant to their terms.\155\
---------------------------------------------------------------------------

    \155\ The Commission recognizes the arguments of Aspire, Raiden, 
and Better Markets regarding the fact that the existence of a 
private right of action would protect market participants by 
deterring fraudulent or manipulative conduct in the RTO-ISO markets. 
Aspire (2) at 2; Raiden at 4; Better Markets at 2-3. However, the 
Commission is of the view that, for all of the reasons stated in 
this section, such concerns are mitigated.
---------------------------------------------------------------------------

C. Use of the Term ``Member'' in the SPP Proposed Order

    With respect to the Commission's use of the term ``member'' in the 
SPP Proposed Order, the Joint Trade Associations noted that the 
Commission used the term ``member'' throughout the SPP Proposed Order, 
and that while such term may have a defined meaning within the context 
of other Commission-regulated markets, such term is not defined for 
purposes of the SPP Proposed Order in the context of RTO and ISO 
markets.\156\ The Joint Trade Associations urged the Commission to 
clarify that the term ``member,'' as used in the context of RTO and ISO 
markets, refers to a market participant that is bound by the relevant 
tariff and that also meets the conditions to be considered an 
``appropriate person'' that are set forth in the SPP Proposed 
Order.\157\ The Commission notes that this is consistent with its 
understanding of the term ``member'' in this context.\158\
---------------------------------------------------------------------------

    \156\ Joint Trade Associations at 8.
    \157\ Id.
    \158\ This is also intended to address the concerns raised in 
SPP's comment letter with respect to the use of the terms ``member'' 
and ``market participant.'' SPP at 3-4.
---------------------------------------------------------------------------

IV. Section 4(c) Determinations

A. Section 4(c) Analysis

1. Overview of CEA Section 4(c)
a. Sections 4(c)(6)(A) and (B)
    As discussed above in section I., the Dodd-Frank Act amended CEA 
section 4(c) to add sections 4(c)(6)(A) and (B), which provide 
authority to exempt 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.\159\ 
Indeed, section 4(c)(6) provides that if the Commission determines that 
the exemption would be consistent with the public interest and the 
purposes of this Act, the

[[Page 73072]]

Commission shall issue such an exemption.\160\ However, any exemption 
considered under section 4(c)(6)(A) and/or (B) must be done ``in 
accordance with [CEA sections 4(c)(1) and (2)].'' \161\
---------------------------------------------------------------------------

    \159\ The exemption language in section 4(c)(6) states that 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) of 
section 4(c), 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)).
    \160\ 7 U.S.C. 6(c)(6).
    \161\ CEA section 4(c)(6) explicitly directs the Commission to 
consider any exemption proposed under 4(c)(6) in accordance with CEA 
sections 4(c)(1) and (2).
---------------------------------------------------------------------------

b. Section 4(c)(1)
    As described above in section I., 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 an exemption from any provisions of the CEA 
except subparagraphs (C)(ii) and (D) of section 2(a)(1).
c. Discussion of Comments on Sections 4(c)(6) and 4(c)(1)
    The Commission noted in the RTO-ISO Order Proposed Amendment that, 
based on the difference in language between CEA sections 4(c)(6) and 
4(c)(1), it is not clear that section 4(c)(6) provides the Commission 
with the authority to exempt from the section 22 private right of 
action. The Commission further noted that, while section 4(c)(1) 
authorizes the Commission to grant exemptions from the Act's 
``requirements'' or ``from any other provision of this Act,'' section 
4(c)(6) authorizes the Commission to exempt from the Act's 
``requirements'' only.\162\
---------------------------------------------------------------------------

    \162\ See 81 FR 30249.
---------------------------------------------------------------------------

    In response to this discussion, Aspire argued that section 4(c)(6), 
in authorizing exemptions from the CEA's ``requirements'' only, does 
not authorize the Commission to grant an exemption from the section 22 
private right of action, since the private right of action is not a 
``requirement'' of the CEA.\163\ IRC argued, on the other hand, that 
the narrower language in section 4(c)(6) does not limit the scope of 
the exemptions that the Commission may grant under sections 4(c)(1) and 
4(c)(2).\164\
---------------------------------------------------------------------------

    \163\ See Aspire (2) at 4.
    \164\ See IRC at 13.
---------------------------------------------------------------------------

    As noted above in section IV.A.1.a., in granting an exemption under 
section 4(c)(6) of the CEA, the Commission must act ``in accordance 
with'' section 4(c)(1), which grants the Commission the discretionary 
authority to exempt from the Act's ``requirements'' or ``from any other 
provision of this Act'' if it makes certain findings.\165\ The policy 
basis for the Commission's decision to grant an exemption from the CEA 
section 22 private right of action under section 4(c)(6) applies 
equally, in the context of the present issue, to a decision to take the 
same action pursuant to section 4(c)(1), and the Commission has made 
the findings required under that provision in sections III.B.2., 
IV.A.2., and IV.A.3. Accordingly, even if the Commission were limited 
under section 4(c)(6) from granting an exemption from the CEA section 
22 private right of action in the present context, the Commission would 
and does, for the reasons discussed above in section III.B.2., in the 
alternative exercise its discretion to grant such an exemption pursuant 
to its authority in section 4(c)(1) of the Act.
---------------------------------------------------------------------------

    \165\ 7 U.S.C. 6(c)(1). The Commission has also considered that 
CEA section 22 may in fact be interpreted to impose a 
``requirement.'' Section 22 states that certain persons who violate 
the Act or Commission regulations ``shall be liable for actual 
damages.'' 7 U.S.C. 25(a). This could be construed as a 
``requirement'' to compensate the victim.
---------------------------------------------------------------------------

d. Section 4(c)(2)
    As set forth above in section I., 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 transaction will be 
entered into solely between appropriate persons; \166\ 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.\167\
---------------------------------------------------------------------------

    \166\ See CEA section 4(c)(2)(B)(i) and the discussion of CEA 
section 4(c)(3) below.
    \167\ See CEA section 4(c)(2)(B)(ii). 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).
---------------------------------------------------------------------------

e. Section 4(c)(3)
    As explained in section I. above, 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 SPP Final Order: (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.\168\
---------------------------------------------------------------------------

    \168\ CEA 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, 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.
---------------------------------------------------------------------------

2. CEA Section 4(c) Determinations--SPP Final Order
a. Commission Jurisdiction
    Subject to the limitations set forth in the CEA, sections 
4(c)(6)(A) and (B) of the Act grant the Commission the authority to 
exempt certain electric energy transactions provided that the 
Commission determines, among other things, that such exemption is 
consistent with the public interest and purposes of the CEA.\169\ The 
Commission received a comment from FERC in response to the SPP Proposed 
Order relating to the Commission's interpretation of its jurisdiction 
pursuant to section 4(c)(6).\170\
---------------------------------------------------------------------------

    \169\ See discussion regarding CEA section 4(c)(6) in section 
IV.A.1.a. supra. As noted above in section IV.A.1.c., to the extent 
that the Commission's action on the private right of action issue, 
with respect to both the SPP Final Order and the Amended RTO-ISO 
Order, requires further authority under section 4(c)(1), the 
Commission can and does exercise its discretion to take such action 
pursuant to such authority.
    \170\ FERC Staff (1) at 2. The Commission received the same 
comment from FERC Staff in response to the RTO-ISO Order Proposed 
Amendment. See FERC Staff (2) at 2. The Commission's determination 
with respect to this comment applies to both the SPP Final Order and 
the Amended RTO-ISO Order.
---------------------------------------------------------------------------

    FERC argued that the Commission should ``interpret the [Dodd-Frank 
Act] as not applying to any contract or instrument traded in an RTO or 
ISO market pursuant to a FERC-accepted or

[[Page 73073]]

approved tariff or rate schedule.'' \171\ Specifically, in its comment 
letter in response to the SPP Proposed Order, FERC maintained that RTO 
and ISO markets and transmission services are ``tightly integrated'' 
and ``regulated to a greater extent than other commodity markets.'' 
\172\ FERC thus asserted that interpreting the Dodd-Frank Act to not 
apply to contracts or instruments traded in an RTO or ISO market 
pursuant to a FERC-accepted or approved tariff or rate schedule is 
``the most appropriate application of [the Dodd-Frank Act] to these 
circumstances.'' \173\ FERC further asserted that, while it does not 
take issue with the Commission's retention of anti-manipulation 
authority in the SPP Proposed Order, FERC also ``retains its anti-
manipulation authority, as well as its regulatory and oversight 
responsibilities, with respect to RTO and ISO markets.'' \174\ FERC 
accordingly requested that the Commission ``clarify that its action on 
SPP's application, including any statements in this proceeding with 
respect to private claims for fraud or manipulation under the Commodity 
Exchange Act, do not limit or otherwise affect FERC's authority.'' 
\175\
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    \171\ FERC Staff (1) at 2; see also FERC Staff (2) at 2.
    \172\ FERC Staff (1) at 2.
    \173\ Id.
    \174\ Id.
    \175\ Id.
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    In response to FERC's comment, the Commission notes that the 
interpretation of the Dodd-Frank Act proffered by FERC is contrary to 
the express language of that statute. The Dodd-Frank Act added a 
savings clause to the CEA that addresses the roles of the Commission, 
FERC, and state agencies as they relate to transactions traded pursuant 
to FERC- or state-approved tariffs or rate schedules. As noted above in 
section I., section 2(a)(1)(I) of the Act states that nothing in the 
Act limits or affects the statutory authority of FERC and state 
regulatory authorities over agreements, contracts, or transactions 
entered into pursuant to a tariff or rate schedule approved by FERC or 
a state regulatory authority, and also preserves the Commission's 
statutory authority over such agreements, contracts, or transactions. 
Moreover, while section 4(c)(6) of the CEA, added by the Dodd-Frank 
Act, empowers the Commission to exempt contracts, agreements, or 
transactions traded pursuant to a Tariff or rate schedule that has been 
approved or permitted to take effect by FERC or a state regulatory 
authority, it does not permit the Commission to automatically or 
mechanically apply the exemption. Instead, section 4(c)(6) mandates 
that the Commission initially determine that the exemption would be in 
the public interest and consistent with the purposes of the CEA, that 
the exemption would be applied only to agreements, contracts, or 
transactions that are entered into solely between appropriate persons, 
and that 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.
    The Commission further notes, for purposes of clarification and as 
requested by FERC, that nothing in the SPP Final Order (or in the 
Amended RTO-ISO Order) limits or otherwise affects FERC's authority.
b. 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 determines that the SPP Final Order 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 
risks, discovering prices, or disseminating pricing information through 
trading in liquid, fair and financially secure trading facilities.\176\ 
Section 3(b) of the CEA identifies the purposes of the CEA as follows: 
(1) 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; and (2) 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.\177\
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    \176\ 7 U.S.C. 5(a).
    \177\ 7 U.S.C. 5(b).
---------------------------------------------------------------------------

    Consistent with the proposed determinations set forth in the SPP 
Proposed Order,\178\ the Commission finds that: (a) The SPP Covered 
Transactions have been, and are, subject to a long-standing regulatory 
framework for the offer and sale of the Transactions established by 
FERC; and (b) the SPP Covered Transactions administered by SPP are part 
of, and inextricably linked to, the organized wholesale electric energy 
markets that are subject to FERC regulation and oversight. For example, 
FERC Order No. 2000 (which, along with FERC Order No. 888, encouraged 
the formation of RTOs and ISOs to operate the electronic transmission 
grid and to create organized wholesale electric energy markets) 
requires an RTO to demonstrate that it has four minimum 
characteristics: (1) Independence from any market participant; (2) a 
scope and regional configuration which enables the 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.\179\ In addition, SPP stated that an RTO must demonstrate 
to FERC that it performs certain self-regulatory and/or market 
monitoring functions.\180\ SPP also represented that it is 
``responsible for ensur[ing] the development and operation of market 
mechanisms to manage transmission congestion'' \181\ and for 
establishing ``market mechanisms [that] 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.'' \182\
---------------------------------------------------------------------------

    \178\ See 80 FR at 29495-96.
    \179\ See id. at 29495.
    \180\ See id.; see also id. at 29495 n.81 (explaining that, 
according to SPP, SPP 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). 
See Exemption Application at 18.
    \181\ See 80 FR at 29495-96; see also Exemption Application at 
18.
    \182\ See 80 FR at 29496; see also Exemption Application at 18-
19; 18 CFR 35.34(k)(2).
---------------------------------------------------------------------------

    Furthermore, as explained by SPP and discussed in the SPP Proposed 
Order, the Commission notes that the SPP

[[Page 73074]]

Covered Transactions are entered into by commercial participants that 
are in the business of generating, transmitting, and distributing 
electric energy,\183\ and that SPP was established for the purpose of 
providing affordable, reliable electric energy to consumers within its 
geographic region.\184\ Additionally, the SPP Covered Transactions that 
take place on SPP's markets are overseen by the SPP Market Monitor, 
required by FERC to identify manipulation of electric energy on SPP's 
markets.\185\
---------------------------------------------------------------------------

    \183\ See 80 FR at 29496; see also Exemption Application at 17.
    \184\ See id.
    \185\ See id.
---------------------------------------------------------------------------

    Moreover, fundamental to the Commission's ``public interest'' and 
``purposes of the [Act]'' analysis is the fact that the SPP Covered 
Transactions are inextricably tied to SPP's physical delivery of 
electric energy.\186\ Another important factor is that the SPP Final 
Order is explicitly limited to SPP Covered Transactions taking place on 
markets that are monitored by the SPP Market Monitor, SPP, or both, and 
FERC. In contrast, an exemption for 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 electric energy, or not limited to appropriate 
persons,\187\ is unlikely to be in the public interest or consistent 
with the purposes of the CEA, taking such transactions outside the 
scope of the SPP Final Order.
---------------------------------------------------------------------------

    \186\ See 80 FR at 29496; see also Exemption Application at 12-
15, 17 (describing the SPP Covered Transactions and noting that each 
of them ``is part of, and inextricably linked to, the organized 
wholesale electric energy markets that are subject to FERC's 
regulation and oversight'').
    \187\ See appropriate persons discussion infra IV.A.2.d.
---------------------------------------------------------------------------

    Finally, the extent to which the SPP Final Order is consistent with 
the public interest and the purposes of the Act can, in major part, be 
assessed by the extent to which the Tariff and activities of SPP, and 
supervision by FERC, 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, ensuring the financial 
integrity of the SPP Covered 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. 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. 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 
and SEF Core Principle analyses, set forth in the SPP Proposed 
Order,\188\ into its consideration of the SPP Final Order'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 SPP complies with 
FERC's credit reform policy.\189\
---------------------------------------------------------------------------

    \188\ See 80 FR at 29499-515.
    \189\ See section IV.B. infra; 80 FR at 29498-99.
---------------------------------------------------------------------------

    The Commission specifically requested comment on (a) whether it 
used the appropriate standard in making its section 4(c) determination, 
and (b) whether the SPP Proposed Order is consistent with the public 
interest and the purposes of the CEA. The Commission received no 
comments in response to these requests. The Commission therefore 
determines that it used the appropriate standard in making its public 
interest and purposes of the CEA determination. The Commission believes 
that the standards set forth in FERC regulation 35.47 appear to achieve 
goals similar to the regulatory objectives of the Commission's DCO Core 
Principles.\190\ Moreover, as set forth in the Commission's DCO Core 
Principle analysis in the SPP Proposed Order, the Commission determines 
that SPP's policies and procedures appear to be consistent with, and to 
accomplish sufficiently for purposes of this SPP Final Order, the 
regulatory objectives of the DCO Core Principles in the context of the 
SPP Covered Transactions.\191\ Also, as set forth in the Commission's 
SEF Core Principles analysis in the SPP Proposed Order, the Commission 
has determined that SPP's policies and procedures appear to be 
consistent with, and to accomplish sufficiently for purposes of this 
SPP Final Order, the regulatory objectives of the SEF Core Principles 
in the context of the SPP Covered Transactions.\192\ The Commission 
further determines that, for the reasons set forth in this SPP Final 
Order, the requested exemptive relief is consistent with the public 
interest and the purposes of the CEA.
---------------------------------------------------------------------------

    \190\ Cf. RTO-ISO Order at 19900-01.
    \191\ Cf. id. at 19901.
    \192\ Cf. id. at 19902.
---------------------------------------------------------------------------

c. CEA Section 4(a) Should Not Apply to the Transactions or Entities 
Eligible for the Exemption
    CEA section 4(c)(2)(A) requires, in part, that the Commission 
determine that the SPP Covered Transactions described in the SPP Final 
Order 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. As set forth in 
the SPP Proposed Order, the Commission has examined the SPP Covered 
Transactions, SPP, and its markets using the CEA Core Principle 
requirements applicable to a DCO and to a SEF as a framework for its 
public interest and purposes of the CEA determination.\193\ As further 
support for this determination, the Commission also is relying on the 
public interest and the purposes of the Act analysis in subsection 
IV.A.2.b. above. In so doing, the Commission has determined that, due 
to the FERC regulatory scheme and the RTO market structure applicable 
to the SPP Covered Transactions, the linkage between the SPP Covered 
Transactions and that regulatory scheme, and the unique nature of the 
market participants that would be eligible to rely on the 
exemption,\194\ CEA section 4(a) should not apply to the SPP Covered 
Transactions under the SPP Final Order.\195\
---------------------------------------------------------------------------

    \193\ See 80 FR at 29499-515.
    \194\ See appropriate persons analysis, section IV.A.2.d. infra; 
see also 80 FR at 29496-97.
    \195\ The Commission notes that such a determination would be 
consistent with a similar determination made in the RTO-ISO Order. 
See RTO-ISO Order at 19895.
---------------------------------------------------------------------------

d. Appropriate Persons
    Section 4(c)(2)(B)(i) of the CEA \196\ requires that the Commission 
determine that the exemption is restricted to SPP Covered Transactions 
entered into solely between ``appropriate persons,'' as that term is 
defined in section 4(c)(3) of the Act.\197\ Section 4(c)(3) defines the 
term ``appropriate person'' to include: (1) any person that falls 
within one of the ten categories of persons delineated in sections 
4(c)(3)(A) through (J) of the Act; or (2) such other persons that the 
Commission determines to be appropriate pursuant to the limited 
authority provided by section 4(c)(3)(K).\198\ The Commission may 
determine that persons that do not meet the requirements of sections 
4(c)(3)(A) through (J) are ``appropriate persons'' for purposes of 
section 4(c) only if it determines that such persons are

[[Page 73075]]

``appropriate in light of their financial or other qualifications, or 
the applicability of appropriate regulatory protections.'' \199\
---------------------------------------------------------------------------

    \196\ 7 U.S.C. 6(c)(2)(B)(i).
    \197\ 7 U.S.C. 6(c)(3).
    \198\ Id.; see also supra note 168.
    \199\ 7 U.S.C. 6(c)(3)(K).
---------------------------------------------------------------------------

    Consistent with the RTO-ISO Order, the Commission proposed to limit 
the exemption to transactions where all parties thereto are 
``appropriate persons,'' as defined in sections 4(c)(3)(A) through (J) 
of the Act,\200\ ``eligible contract participants,'' as defined in 
section 1a(18)(A) of the Act \201\ and in Commission regulation 
1.3(m),\202\ or persons who are in the business of: (i) Generating, 
transmitting, or distributing electric energy, or (ii) providing 
electric energy services that are necessary to support the reliable 
operation of the transmission system.\203\ The Commission did not 
receive any comments objecting to this proposed limitation. Therefore, 
pursuant to the authority set forth in section 4(c)(3)(K) of the CEA 
and consistent with the RTO-ISO Order, the Commission has determined 
that ``eligible contract participants,'' as defined in section 
1a(18)(A) of the CEA and in Commission regulation 1.3(m), and ``persons 
who are in the business of: (i) Generating, transmitting, or 
distributing electric energy, or (ii) providing electric energy 
services that are necessary to support the reliable operation of the 
transmission system,'' are appropriate persons for purposes of the SPP 
Final Order, in light of their financial or other qualifications. 
Accordingly, this limitation has been incorporated into the SPP Final 
Order unchanged.
---------------------------------------------------------------------------

    \200\ 7 U.S.C. 6(c)(3)(A)-(J).
    \201\ 7 U.S.C. 1a(18)(A).
    \202\ 17 CFR 1.3(m).
    \203\ 80 FR 29496-97. The Commission notes that the proposed 
limitation is consistent with the RTO-ISO Order. See RTO-ISO Order 
at 19913.
---------------------------------------------------------------------------

    The Commission believes that this expansion, when combined with the 
``appropriate persons'' definition delineated in sections 4(c)(3)(A) 
through (J) of the CEA, would appear to strike the appropriate balance 
because the exemption would apply only to those market participants 
that can demonstrate the financial wherewithal or the requisite 
business activities and congruent expertise to qualify as appropriate 
persons under section 4(c)(3)(K) of the CEA.\204\ The Commission has 
determined that ``eligible contract participants,'' as defined in 
section 1a(18)(A) of the CEA and in Commission regulation 1.3(m), are 
appropriate persons for purposes of the SPP Final Order in light of 
their financial or other qualifications, or the applicability of 
regulatory protections. Moreover, the Commission is using the authority 
provided by section 4(c)(3)(K) of the CEA to determine that a ``person 
who actively participates in the generation, transmission, or 
distribution of electric energy,'' as defined within the SPP Final 
Order, is an appropriate person for purposes of the exemption provided 
therein.\205\ The SPP Final Order defines a ``person who actively 
participates in the generation, transmission, or distribution of 
electric energy'' as ``a person that is in the business of: (1) 
Generating, transmitting, or distributing electric energy; or (2) 
providing electric energy services that are necessary to support the 
reliable operation of the transmission system.'' The Commission has 
determined that the inclusion of transactions entered into by such 
persons is proper because such persons' active participation in the 
physical markets provides them with the requisite ``qualifications'' 
necessary to be deemed an ``appropriate person'' under CEA section 
4(c)(3)(K) for purposes of the SPP Final Order.
---------------------------------------------------------------------------

    \204\ Cf. RTO-ISO Order at 19899.
    \205\ Cf. id. at 19897.
---------------------------------------------------------------------------

e. Effect on the Commission's or Any Contract Market's Ability To 
Discharge Its Regulatory or Self-Regulatory Duties Under the CEA
    CEA section 4(c)(2)(B)(ii) requires the Commission to make a 
determination regarding whether exempting the SPP Covered Transactions 
will have a material adverse effect on the ability of the Commission or 
any contract markets to perform regulatory or self-regulatory 
duties.\206\ In making this determination, the Commission should 
consider such regulatory concerns as ``market surveillance, financial 
integrity of participants, protection of customers, and trade practice 
enforcement.'' \207\ These considerations are similar to the purposes 
of the CEA as defined in section 3, initially addressed in the public 
interest and purposes of the CEA discussion.
---------------------------------------------------------------------------

    \206\ 7 U.S.C. 6(c)(2)(B)(ii).
    \207\ See H.R. Rep. No. 102-978, 102d Cong. 2d Sess., 1992 
U.S.C.C.A.N. 3179, 3211 (1992).
---------------------------------------------------------------------------

    The Commission proposed to determine that the exemption would not 
have a material adverse effect on the Commission's or any contract 
market's ability to discharge its regulatory function.\208\ In the SPP 
Proposed Order, the Commission noted the following assertion by SPP as 
support for its determination:
---------------------------------------------------------------------------

    \208\ 80 FR 29497-98.

    Under Section 4(d) of the Act, the Commission will retain 
authority to conduct investigations to determine whether SPP is 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. SPP will continue to retain records 
related to the Transactions, consistent with existing obligations 
under FERC 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 SPP's 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 SPP or of a contract market will be affected by the Commission's 
granting the requested exemptions.\209\
---------------------------------------------------------------------------

    \209\ Id. at 29497 (quoting Exemption Application at 22).

    In addition, the Commission stated that the limitation in the SPP 
Proposed Order to SPP Covered Transactions between certain appropriate 
persons avoids potential issues regarding financial integrity and 
customer protection.\210\
---------------------------------------------------------------------------

    \210\ Id.
---------------------------------------------------------------------------

    Moreover, the Commission did not propose to exempt SPP from certain 
CEA provisions, including sections 2(a)(1)(B), 4(d), 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, 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.\211\ As such, the Commission proposed to 
expressly retain authority to pursue fraudulent or manipulative 
conduct.\212\
---------------------------------------------------------------------------

    \211\ Id.
    \212\ Id. Nor did SPP seek an exemption from these provisions. 
See id. at 29497 n.107; Exemption Application at 1.
---------------------------------------------------------------------------

    In addition, the Commission proposed that granting the SPP Proposed 
Order for the SPP Covered Transactions would not have a material 
adverse effect on the ability of any contract market to discharge its 
self-regulatory duties under the Act.\213\ Specifically, with respect 
to TCRs and Operating Reserve Transactions, the Commission found that 
the exemption would not have a material adverse effect on any contract 
market carrying out its self-regulatory function because these 
transactions did

[[Page 73076]]

not appear to be used for price discovery or as settlement prices for 
other transactions in Commission-regulated markets.\214\ With respect 
to Energy Transactions, the Commission proposed that, while these 
transactions did have a relationship to Commission-regulated markets 
because they can serve as a source of settlement prices for other 
transactions within Commission jurisdiction, they should not pose 
regulatory burdens on a contract market because SPP has market 
monitoring systems in place to detect and deter manipulation that takes 
place on its markets.\215\ In addition, the Commission noted that, as a 
condition to the SPP Proposed Order, the Commission would be able to 
obtain data from FERC with respect to activity on SPP's markets that 
may impact trading on Commission-regulated markets.\216\
---------------------------------------------------------------------------

    \213\ 80 FR at 29497.
    \214\ Id.
    \215\ Id.; see also id. at 29494, 29496.
    \216\ Id. at 29497.
---------------------------------------------------------------------------

    Finally, the Commission noted that if the SPP Covered Transactions 
ever could be used in combination with trading activity or in a 
position in a designated contract market (``DCM'') contract to conduct 
market abuse, both the Commission and DCMs have sufficient independent 
authority over DCM market participants to monitor for such 
activity.\217\
---------------------------------------------------------------------------

    \217\ Id. at 29497-98.
---------------------------------------------------------------------------

    While the Commission did not receive any comments on its proposed 
determination that the exemption would not have a material adverse 
effect on the Commission's ability to discharge its regulatory duties, 
an important caveat should be made. With regard to the SEF Core 
Principle 3 analysis and general statements regarding the SPP Market 
Monitor's ability to detect and deter manipulation, the Commission 
notes that such statements were not meant to be construed as a final 
and irrevocable approval of the integrity of reference prices derived 
from SPP's markets. The Commission retains the authority to question 
and obtain additional information in a timely manner regarding the 
underlying prices to which TCRs and other electric energy contracts, 
which are subject to the Commission's jurisdiction, settle. As 
previously discussed, the Commission maintains the responsibility of 
ensuring that exchange-traded and cleared financial electric energy 
contracts are constructed such that the settlement mechanism produces 
prices that accurately reflect the underlying supply and demand 
fundamentals of SPP's markets and are not readily susceptible to 
manipulation. For this reason, as originally proposed, the Commission 
has conditioned the SPP Final Order upon access to related 
transactional and positional data from SPP's markets.\218\
---------------------------------------------------------------------------

    \218\ See section IV.B. infra.
---------------------------------------------------------------------------

    For the reasons set forth herein and in the SPP Proposed Order, the 
Commission determines that the exemption for the SPP Covered 
Transactions in this SPP Final Order would not have a material adverse 
effect on the Commission's or any contract market's ability to 
discharge its regulatory function.
3. CEA Section 4(c) Determinations--Amended RTO-ISO Order
a. Consistent With the Public Interest and Purposes of the CEA
    As required by CEA section 4(c)(2)(A), as well as section 4(c)(6), 
the Commission previously determined that the exemption set forth in 
the RTO-ISO Order is consistent with the public interest and the 
purposes of the CEA.\219\ The amendment to the RTO-ISO Order does not 
alter the Commission's prior determinations with respect to the public 
interest and purposes of the CEA, and the Commission incorporates such 
prior determinations into the Amended RTO-ISO Order.
---------------------------------------------------------------------------

    \219\ See RTO-ISO Order at 19894-95, 19900-02. The Commission's 
prior determination was based on a number of findings, including 
that (a) the RTO-ISO Covered Transactions have been, and are, 
subject to a long-standing, regulatory framework for the offer and 
sale of the Transactions established by FERC or PUCT; (b) the RTO-
ISO Covered Transactions administered by the RTOs, ISOs, or ERCOT 
are part of, and inextricably linked to, the organized wholesale 
electric energy markets that are subject to FERC and PUCT regulation 
and oversight; (c) the RTO-ISO Covered Transactions are entered into 
primarily by commercial participants that are in the business of 
generating, transmitting, and distributing electric energy; (d) the 
Requesting Parties were established for the purpose of providing 
affordable, reliable electric energy to consumers within their 
geographic region; (e) the RTO-ISO Covered Transactions that take 
place on the Requesting Parties' markets are overseen by Market 
Monitoring Units, required by FERC and PUCT to identify manipulation 
of electric energy on the RTO-ISO Covered Entities' markets; (f) the 
RTO-ISO Covered Transactions are inextricably tied to the Requesting 
Parties' physical delivery of electric energy; (g) the RTO-ISO Order 
is explicitly limited to RTO-ISO Covered Transactions taking place 
on markets that are monitored by either an independent Market 
Monitoring Unit, a market administrator (the RTO, ISO, or ERCOT), or 
both, and a government regulator (FERC or PUCT); (h) the standards 
set forth in FERC regulation 35.47 appear to achieve goals similar 
to the regulatory objectives of the Commission's DCO Core 
Principles, and substantial compliance with such requirements was 
key to the Commission's determination that the tariffs and 
activities of the Requesting Parties and supervision by FERC or PUCT 
are congruent with, and--in the context of the RTO-ISO Covered 
Transactions--sufficiently accomplish, the regulatory objectives of 
each DCO Core Principle; (i) the Requesting Parties' policies and 
procedures appear to be consistent with, and to accomplish 
sufficiently for purposes of the RTO-ISO Order, the regulatory 
objectives of the DCO Core Principles in the context of the RTO-ISO 
Covered Transactions; and (j) the Requesting Parties' policies and 
procedures appear to be consistent with, and to accomplish 
sufficiently for purposes of the RTO-ISO Order, the regulatory 
objectives of the SEF Core Principles in the context of the RTO-ISO 
Covered Transactions. Id.
---------------------------------------------------------------------------

    In addition, the Commission determines that the current amendment 
to the RTO-ISO Order, which explicitly provides that the exemption set 
forth therein extends to private actions under CEA section 22, is in 
the public interest for all of the reasons stated in section 
III.B.2.\220\
---------------------------------------------------------------------------

    \220\ The Commission received one comment regarding the public 
interest findings in the RTO-ISO Order Proposed Amendment. EPSA 
argued that in the RTO-ISO Order Proposed Amendment, the Commission 
proposed to ``automatically or mechanically bypass the required 
analysis'' under CEA sections 4(c)(1) and 4(c)(2), and that the 
Commission's proposed public interest findings with respect the 
proposed amendment to explicitly preserve the CEA section 22 private 
right of action were insufficient. EPSA at 7-8. The Commission is of 
the view that the public interest analysis in the RTO-ISO Order 
Proposed Amendment, and that set forth herein, is neither automatic 
nor mechanical, and that such analyses meet the requirements of 
sections 4(c)(1) and 4(c)(2). Moreover, given the Commission's 
determination with respect to the private right of action issue, the 
Commission is of the view that EPSA's concern is now moot.
---------------------------------------------------------------------------

b. Other Section 4(c) Determinations
    In the RTO-ISO Order, the Commission made a number of other 
determinations under CEA section 4(c), including:
     The Dodd-Frank Act applies to contracts and instruments 
traded in RTO or ISO markets pursuant to a FERC- or state-approved 
tariff or rate schedule, subject to the Commission's authority under 
CEA section 4(c)(6) to exempt contracts, agreements, or transactions 
traded pursuant to such a tariff or rate schedule upon determining that 
the exemption would be in the public interest and consistent with the 
purposes of the CEA; that the exemption would be applied only to 
agreements, contracts, or transactions that are entered into solely 
between appropriate persons; and that 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.\221\
---------------------------------------------------------------------------

    \221\ See RTO-ISO Order at 19893-94; see also CEA section 
4(c)(6).
---------------------------------------------------------------------------

     Due to the FERC or PUCT regulatory scheme and the RTO or 
ISO market structure already applicable to the SPP Covered 
Transactions, the linkage between the SPP Covered Transactions and 
those regulatory schemes, and the unique nature of the market 
participants that are eligible to rely on the exemption in the RTO-ISO 
Order, CEA section 4(a) should not

[[Page 73077]]

apply to the SPP Covered Transactions under the RTO-ISO Order.\222\
---------------------------------------------------------------------------

    \222\ See RTO-ISO Order at 19895; see also CEA section 
4(c)(2)(A).
---------------------------------------------------------------------------

     Eligible contract participants, as defined in section 
1a(18)(A) of the CEA and in Commission regulation 1.3(m), are 
appropriate persons for purposes of the RTO-ISO Order in light of their 
financial or other qualifications, or the applicability of regulatory 
protections.\223\ In addition, a ``person who actively participates in 
the generation, transmission, or distribution of electric energy,'' as 
defined within the RTO-ISO Order, is an appropriate person for purposes 
of the exemption provided therein.\224\
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    \223\ See RTO-ISO Order at 19896; see also CEA section 
4(c)(2)(B)(i).
    \224\ See RTO-ISO Order at 19897; see also CEA section 
4(c)(2)(B)(i).
---------------------------------------------------------------------------

     The exemption in the RTO-ISO Order for the SPP Covered 
Transactions would not have a material adverse effect on the 
Commission's or any contract market's ability to discharge its 
regulatory function.\225\
---------------------------------------------------------------------------

    \225\ See RTO-ISO Order at 19903-04; see also CEA section 
4(c)(2)(B)(ii).
---------------------------------------------------------------------------

    The amendment to the RTO-ISO Order does not alter the Commission's 
determination with respect to any of the above 4(c) determinations. 
Therefore, the Commission hereby incorporates such prior 4(c) 
determinations, and the findings on which such determinations are 
based, into the Amended RTO-ISO Order. All transactions that were 
permitted pursuant to the exemption set forth in the RTO-ISO Order are 
still permitted under the Amended RTO-ISO Order. The only change made 
by the amendment to the RTO-ISO Order is that the Amended RTO-ISO Order 
provides explicitly that the exemption set forth therein also extends 
to actions pursuant to CEA section 22.

B. Additional Limitations and Provisions--SPP Final Order

    As described in detail above,\226\ the Commission expressly noted 
in the SPP Proposed Order \227\ that the proposed exemption was based 
upon the representations made in the Exemption Application and in the 
supporting materials provided by SPP and its counsel,\228\ and that any 
material change or omission in the facts and circumstances that alter 
the grounds for the SPP Proposed Order might require the Commission to 
reconsider its finding that the exemption contained therein is 
appropriate and/or in the public interest and consistent with the 
purposes of the CEA. The Commission did not receive any comments on 
this proposal. As such, the SPP Final Order is based on the 
representations made by SPP and its counsel in the Exemption 
Application, the supplemental information, and supporting materials 
filed with the Commission. In particular, the Commission notes that the 
following representations are of particular importance and integral to 
the Commission's decision to grant the exemption set forth in this SPP 
Final Order: (1) The exemption requested by SPP relates to SPP Covered 
Transactions that are primarily entered into by commercial participants 
that are in the business of generating, transmitting and distributing 
electric energy; \229\ (2) SPP was established for the purpose of 
providing affordable, reliable electric energy to consumers within its 
geographic region; \230\ (3) the SPP Covered Transactions are an 
essential means, designed by FERC as an integral part of its statutory 
responsibilities, to enable the reliable delivery of affordable 
electric energy; \231\ (4) each of the SPP Covered Transactions taking 
place on SPP's markets is monitored by both a market administrator 
(SPP) and the SPP Market Monitor; \232\ and (5) each SPP Covered 
Transaction is directly tied to the physical capabilities of SPP's 
electric energy grid.\233\ Therefore, the Commission affirms that any 
material change or omission in the facts and circumstances that alter 
the grounds for the SPP Final Order might require the Commission to 
reconsider its finding that the exemption contained therein is 
appropriate and consistent with the public interest and purposes of the 
CEA. The Commission reiterates that the SPP Covered Transactions must 
be tied to the allocation of the physical capabilities of an electric 
energy transmission grid in order to be suitable for exemption because 
such activity would be inextricably linked to the physical delivery of 
electric energy.
---------------------------------------------------------------------------

    \226\ See section II.C.3. supra.
    \227\ See 80 FR at 29494, 29518.
    \228\ As part of its Exemption Application, SPP provided the 
Commission with a legal opinion that provided the Commission with 
assurance that the netting arrangements contained in the approach 
selected by SPP to satisfy the obligations contained in FERC 
regulation 35.47(d) will, in fact, provide SPP 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. See Memorandum regarding Enforceability of 
Netting Practices from Hunton & Williams LLP to SPP, dated December 
2, 2013.
    \229\ See 80 FR at 29494; see also Exemption Application at 17.
    \230\ See 80 FR at 29494; see also Exemption Application at 2, 
17.
    \231\ See 80 FR at 29494; see also generally FERC Order No. 888; 
FERC Order No. 2000; 18 CFR 35.34(k)(2); see also Exemption 
Application at 17.
    \232\ See 80 FR at 29494; see also Exemption Application at 17.
    \233\ See 80 FR at 29494; see also Exemption Application at 12-
15.
---------------------------------------------------------------------------

    In addition, the Commission proposed to exclude from the exemptive 
relief its general anti-fraud and anti-manipulation, and scienter-based 
prohibitions over SPP and the SPP Covered Transactions under the CEA, 
including sections 2(a)(1)(B), 4(d), 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 CEA and any 
implementing regulations promulgated thereunder including, but not 
limited to, Commission regulations 23.410(a) and (b), 32.4, and part 
180.\234\ The Commission received no comments regarding this 
reservation of authority.
---------------------------------------------------------------------------

    \234\ See 80 FR at 29515, 29516.
---------------------------------------------------------------------------

    The Commission believes it prudent to reserve in the SPP Final 
Order its anti-fraud and anti-manipulation authority, as well as those 
scienter-based prohibitions in the specified provisions of the Act and 
Commission regulations (without finding it necessary in this particular 
context to preserve other enforcement authority). The Commission notes 
that reservation of enforcement authority is standard practice with 
exemptive orders issued pursuant to CEA section 4(c). The Commission 
also believes it is important to highlight that, as with all exemptions 
issued pursuant to CEA section 4(c), the exemption shall not affect the 
authority of the Commission under any other provision of the CEA to 
conduct investigations in order to determine compliance with the 
requirements or conditions of such exemption or to take enforcement 
action for any violation of any provision of the CEA or any rule, 
regulation or order thereunder caused by the failure to comply with or 
satisfy such conditions or requirements.\235\
---------------------------------------------------------------------------

    \235\ See 7 U.S.C. 6(d).
---------------------------------------------------------------------------

    In the SPP Proposed Order, the Commission also proposed to make a 
number of additional determinations, including but not limited to the 
following:
     The Commission proposed to determine that the requirements 
set forth in FERC regulation 35.47 appear to achieve goals similar to 
the regulatory objectives of the Commission's DCO Core Principles, and 
substantial compliance with such requirements is key to the 
Commission's determination that the Tariff and activities of SPP and 
supervision by FERC are congruent with, and--in the context of the SPP 
Covered Transactions--sufficiently accomplish, the regulatory 
objectives of each DCO Core Principle.\236\
---------------------------------------------------------------------------

    \236\ 80 FR 29498-99.
---------------------------------------------------------------------------

     The Commission proposed to determine that, on the basis of 
SPP's

[[Page 73078]]

representations and consistent with the RTO-ISO Order, it is not 
necessary, when considering the requisite public interest and purposes 
of the CEA determinations, to impose position limits on SPP's 
Integrated Marketplace.\237\
---------------------------------------------------------------------------

    \237\ Id. at 29511.
---------------------------------------------------------------------------

     The Commission proposed to determine that SPP's practices 
or Tariff and supervision by FERC are congruent with, and, in the 
context of the SPP Covered Transactions, sufficiently accomplish, the 
regulatory objectives of the Core Principles set forth in the CEA for 
DCOs.\238\
---------------------------------------------------------------------------

    \238\ Id. at 29499-508.
---------------------------------------------------------------------------

     The Commission proposed to determine that SPP's practices 
or Tariff and supervision by FERC are congruent with, and, in the 
context of the SPP Covered Transactions, sufficiently accomplish, the 
regulatory objectives of the Core Principles set forth in the CEA for 
SEFs.\239\
---------------------------------------------------------------------------

    \239\ Id. at 29508-15.
---------------------------------------------------------------------------

    In the SPP Proposed Order, the Commission proposed to limit the 
scope of the exemption to certain specified transactions:
     The SPP Proposed Order would exempt Transmission 
Congestion Rights, Energy Transactions, and Operating Reserve 
Transactions from most requirements of the CEA, and the SPP Proposed 
Order would not extend the exemption beyond these three specifically-
defined transactions.\240\ The SPP Proposed Order would include any 
modifications to existing transactions that do not alter the SPP 
Covered Transactions' characteristics in a way that would cause them to 
fall outside the definitions of the SPP Covered Transactions, and that 
are offered by SPP pursuant to a FERC-approved Tariff.
---------------------------------------------------------------------------

    \240\ Id. at 29515.
---------------------------------------------------------------------------

     The SPP Proposed Order would exempt products that qualify 
as one of the three defined SPP Covered Transactions, regardless of 
whether or not SPP offers the particular product at the present 
time.\241\
---------------------------------------------------------------------------

    \241\ Id. at 29516.
---------------------------------------------------------------------------

    In the SPP Proposed Order, the Commission proposed to condition the 
exemption on the following:
     The SPP Proposed Order would be conditioned upon requiring 
(1) that an information sharing arrangement acceptable to the 
Commission be executed between the Commission and FERC and continue to 
be in effect, and (2) ``SPP's compliance with the Commission's requests 
through FERC to share, on an as-needed basis and in connection with an 
inquiry consistent with the CEA and Commission regulations, positional 
and transactional data within SPP's possession for products in SPP's 
markets that are related to markets that are subject to the 
Commission's jurisdiction, including any pertinent information 
concerning such data.''\242\
---------------------------------------------------------------------------

    \242\ Id. at 29517.
---------------------------------------------------------------------------

     The SPP Proposed Order would be conditioned upon requiring 
that ``[n]either the Tariff nor any other governing documents of SPP 
shall include any requirement that SPP notify its members prior to 
providing information to the Commission in response to a subpoena or 
other request for information or documentation.''\243\
---------------------------------------------------------------------------

    \243\ Id.
---------------------------------------------------------------------------

    The Commission received no comments on the above proposed 
determinations, limitations, and conditions, and hereby incorporates 
such determinations, limitations, and conditions into the SPP Final 
Order. As noted in the SPP Proposed Order and earlier in this SPP Final 
Order, the SPP Covered Transactions are inextricably tied to SPP's 
physical delivery of electric energy, and they take place on markets 
that are monitored by the SPP Market Monitor, SPP, or both, and FERC. 
Specifically, with respect to TCRs and Operating Reserve Transactions, 
the Commission found that the exemption would not have a material 
adverse effect on any contract market carrying out its self-regulatory 
function because these transactions did not appear to be used for price 
discovery or as settlement prices for other transactions in Commission-
regulated markets. With respect to Energy Transactions, while Energy 
Transactions did have a relationship to Commission-regulated markets 
because they can serve as a source of settlement prices for other 
transactions within Commission jurisdiction, they should not pose 
regulatory burdens on a contract market because SPP has market 
monitoring systems in place to detect and deter manipulation that takes 
place on its markets. Furthermore, conditioning the exemption provided 
in the SPP Final Order upon the Commission's ability to obtain related 
transactional and positional data from SPP, and SPP's compliance with 
such requests by sharing the requested information, is meant to enable 
the Commission to continue discharging its regulatory duties under the 
Act as set forth in CEA section 3.\244\
---------------------------------------------------------------------------

    \244\ 7 U.S.C. 5.
---------------------------------------------------------------------------

V. Related Matters

A. Regulatory Flexibility Act

1. Introduction
    The Regulatory Flexibility Act (``RFA'') requires that the 
Commission consider whether the exemptions set forth in the SPP Final 
Order and in the Amended RTO-ISO Order will have a significant economic 
impact on a substantial number of small entities and, if so, provide a 
regulatory flexibility analysis respecting the impact.\245\
---------------------------------------------------------------------------

    \245\ 5 U.S.C. 601 et seq.
---------------------------------------------------------------------------

2. SPP Final Order
    In the SPP Proposed Order, the Commission found that SPP should not 
be considered a small entity based on the central role it plays in the 
operation of the electronic transmission grid and the creation of 
organized wholesale electric markets that are subject to FERC 
regulatory oversight,\246\ analogous to functions performed by DCMs and 
DCOs, which the Commission has previously determined not to be ``small 
entities.''\247\ The SPP Proposed Order included entities that qualify 
as (1) ``appropriate persons'' pursuant to CEA sections 4(c)(3)(A) 
through (J), (2) ``eligible contract participants'' (``ECPs''), as 
defined in CEA section 1a(18)(A) and Commission regulation 1.3 (m), or 
(3) persons who are in the business of: (i) Generating, transmitting, 
or distributing electric energy, or (ii) providing electric energy 
services that are necessary to support the reliable operation of the 
transmission system.\248\ The Commission previously determined that 
ECPs are not ``small entities'' for purposes of the RFA.\249\ As a 
result, the

[[Page 73079]]

Commission certified that the SPP Proposed Order would not have a 
significant economic impact on a substantial number of small entities 
for purposes of the RFA, and requested written comments regarding this 
certification.\250\ The Commission did not receive any comments with 
respect to its RFA analysis in the SPP Proposed Order.
---------------------------------------------------------------------------

    \246\ 80 FR at 29518. See Enhancement of Electricity Market 
Surveillance and Analysis Through Ongoing Electronic Delivery of 
Data From Regional Transmission Organizations and Independent System 
Operators, 77 FR 26674, 26685-86, May 7, 2012 (RFA analysis as 
conducted by FERC regarding six RTOs and ISOs, including SPP).
    Commission staff also performed an independent RFA analysis 
based on Subsector 221 of sector 22 (utilities companies) of the 
Small Business Administration (``SBA''), which defines any small 
utility corporation as one that does not have more than 250 
employees. See 13 CFR 121.201 (1-1-15 Edition). Staff concludes that 
SPP is not a small entity, since SPP represents that it employs more 
than 500 employees. See Exemption Application Attachments at 8.
    \247\ 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, 18618-19, Apr. 30, 1982 
(DCMs).
    \248\ See 80 FR at 29517. Under CEA section 2(e), only ECPs are 
permitted to participate in a swap, subject to the end-user clearing 
exception.
    \249\ See Opting Out of Segregation, 66 FR 20740, 20743, Apr. 
25, 2001.
    \250\ 80 FR at 29518.
---------------------------------------------------------------------------

    The relief provided in the SPP Final Order to a person who actively 
participates in the generation, transmission, or distribution of 
electric energy may impact some small entities to the extent they may 
fall within standards established by the SBA regulations defining any 
small utility corporation as one that does not have more than 250 
employees.\251\ However, based on the Commission's existing information 
about SPP's markets, its market participants consist mostly of entities 
exceeding the thresholds defining ``small entities'' set out above.
---------------------------------------------------------------------------

    \251\ See note 246 supra (citing 13 CFR 121.201).
---------------------------------------------------------------------------

    The Commission is of the view that the SPP Final Order alleviates 
the economic impact that the exempt entities, including any small 
entities that may opt to take advantage of the exemption set forth in 
the SPP Final Order, otherwise would be subjected to by exempting 
certain of their transactions from the application of substantive 
regulatory compliance requirements of the CEA and Commission 
regulations thereunder. Accordingly, the Commission is of the view that 
the SPP Final Order does not have a significant economic impact on a 
substantial number of small entities. Therefore, the Chairman, on 
behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 
605(b), that the exemption set forth in the SPP Final Order would not 
have a significant economic impact on a substantial number of small 
entities.
3. Amended RTO-ISO Order
    With respect to the Amended RTO-ISO Order, the Commission 
previously determined that the RTO-ISO Order would not have a 
significant economic impact on a substantial number of small 
entities.\252\ The Amended RTO-ISO Order does not substantively change 
the scope of the exemption set forth in the RTO-ISO Order. Furthermore, 
the RFA analysis in the RTO-ISO Order is still valid. Specifically, the 
RTOs and ISOs covered by the Amended RTO-ISO Order 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,\253\ analogous to functions performed by DCMs and 
DCOs, which, as noted above, the Commission has previously determined 
not to be ``small entities.'' \254\ In addition, the Amended RTO-ISO 
Order includes entities that qualify as (1) ``appropriate persons'' 
pursuant to CEA sections 4(c)(3)(A) through (J), (2) ECPs, as defined 
in CEA section 1a(18)(A) and Commission regulation 1.3 (m), or (3) 
persons who are in the business of: (i) Generating, transmitting, or 
distributing electric energy, or (ii) providing electric energy 
services that are necessary to support the reliable operation of the 
transmission system. As noted above, the Commission has previously 
determined that ECPs are not ``small entities'' for purposes of the 
RFA.\255\ The Commission is of the view that, based on the Commission's 
existing information about the RTOs' and ISOs' markets, their market 
participants consist mostly of entities exceeding the thresholds 
defining ``small entities.'' \256\
---------------------------------------------------------------------------

    \252\ See RTO-ISO Order at 19906-07.
    \253\ See note 246 supra; see also RTO-ISO Order at 19906.
    \254\ See note 247 supra; see also RTO-ISO Order at 19906.
    \255\ See note 249 supra; see also RTO-ISO Order at 19906.
    \256\ See note 246 supra (citing 13 CFR 121.201). The threshold 
established by the SBA regulations define any small utility 
corporation as one that does not have more than 250 employees; see 
also RTO-ISO Order at 19907.
---------------------------------------------------------------------------

    Also, the Amended RTO-ISO Order would continue to alleviate the 
economic impact that the exempt entities, including any small entities 
that may opt to take advantage of the exemption set forth in the RTO-
ISO Order, otherwise would be subjected to by continuing to exempt 
certain of their transactions from the application of substantive 
regulatory compliance requirements of the CEA and Commission 
regulations thereunder. Accordingly, the Commission does not expect the 
Amended RTO-ISO Order to have a significant economic impact on a 
substantial number of small entities. Therefore, the Chairman, on 
behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 
605(b), that the exemption set forth in the Amended RTO-ISO Order would 
not have a significant economic impact on a substantial number of small 
entities.\257\
---------------------------------------------------------------------------

    \257\ The Commission received one comment with respect to the 
RFA analysis in the RTO-ISO Order Proposed Amendment. The NFP 
Electric Associations argued that the RFA analysis in the RTO-ISO 
Order Proposed Amendment was ``abbreviated and conclusory,'' that 
the members of the NFP Electric Associations are ``small entities'' 
for purposes of the RFA, and that the amendment proposed in the RTO-
ISO Order Proposed Amendment would have a negative impact on such 
entities. See NFP Electric Associations at 8. The Commission is of 
the view that the RFA analysis in the RTO-ISO Order Proposed 
Amendment, and that set forth herein, is sufficiently detailed and 
not conclusory. Moreover, given the Commission's determination with 
respect to the private right of action issue, the Commission is of 
the view that the NFP Electric Associations' concern is now moot.
---------------------------------------------------------------------------

B. Paperwork Reduction Act

1. Introduction
    The purposes of the Paperwork Reduction Act of 1995 (``PRA'') \258\ 
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 and 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.'' \259\
---------------------------------------------------------------------------

    \258\ 44 U.S.C. 3501 et seq.
    \259\ 44 U.S.C. 3502(3).
---------------------------------------------------------------------------

2. SPP Final Order
    The SPP Proposed Order provided that the exemption would be 
expressly conditioned upon information sharing arrangements between the 
Commission and FERC that are acceptable to the Commission continuing to 
be in effect.\260\ The Commission determined that the PRA would not 
apply because the SPP Proposed Order did 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''). The Commission did 
not receive any comments regarding this determination. The SPP Final 
Order thus incorporates the information sharing condition unchanged 
from the SPP Proposed Order, and this condition is consistent with the 
RTO-ISO Order.
---------------------------------------------------------------------------

    \260\ 80 FR at 29517.
---------------------------------------------------------------------------

3. Amended RTO-ISO Order
    With respect to the Amended RTO-ISO Order, the Commission 
previously determined that the RTO-ISO Order did not impose any new 
recordkeeping or information collection requirements, or other 
collections of information on ten or more persons that require OMB

[[Page 73080]]

approval.\261\ The Amended RTO-ISO Order does not impose any 
recordkeeping or information collection requirements, or other 
collections of information on ten or more persons that require OMB 
approval.
---------------------------------------------------------------------------

    \261\ See RTO-ISO Order at 19907-08.
---------------------------------------------------------------------------

C. Cost-Benefit Considerations

1. Introduction
    Section 15(a) of the CEA\262\ requires the Commission to ``consider 
the costs and benefits'' of its actions before promulgating a 
regulation under the CEA or issuing certain orders. In issuing the SPP 
Final Order and the Amended RTO-ISO Order, the Commission is required 
by CEA sections 4(c)(6) and 4(c)(1) to ensure that they are 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.
---------------------------------------------------------------------------

    \262\ 7 U.S.C. 19(a).
---------------------------------------------------------------------------

1. SPP Final Order
a. Background
    On October 17, 2013, SPP filed an Exemption Application \263\ with 
the Commission requesting that the Commission exercise its authority 
under section 4(c)(6) of the CEA and section 712(f) of the Dodd-Frank 
Act to exempt certain contracts, agreements, and transactions for the 
purchase or sale of specified electric energy products, that are 
offered pursuant to a FERC-approved Tariff, from most provisions of the 
Act.\264\ SPP asserted 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, and (b) part of, and inextricably linked to, the 
organized wholesale electric energy markets that are subject to 
regulation and oversight by FERC. SPP expressly excluded from the 
Exemption Application any request for relief from the Commission's 
general anti-fraud and anti-manipulation authority, and scienter-based 
prohibitions, under sections 2(a)(1)(B), 4(d), 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 under these sections 
including, but not limited to, Commission regulations 23.410(a) and 
(b), 32.4 and part 180,\265\ and such provisions explicitly have been 
carved out of the SPP Final Order.\266\
---------------------------------------------------------------------------

    \263\ As noted above, SPP filed an amended Exemption Application 
on August 1, 2014, and citations to ``Exemption Application'' herein 
are to the amended Exemption Application. See note 31 supra.
    \264\ See 80 FR at 29491; see also Exemption Application at 1-2, 
11-15.
    \265\ See 80 FR at 29491; see also Exemption Application at 1.
    \266\ See paragraph 1 of the SPP Final Order.
---------------------------------------------------------------------------

b. SPP Proposed Order and Request for Comment on the Commission's 
Proposed Consideration of Costs and Benefits
    Upon consideration of the Exemption Application, the Commission 
issued the SPP Proposed Order, which proposed to exempt Transmission 
Congestion Rights, Energy Transactions, and Operating Reserve 
Transactions pursuant to section 4(c)(6) of the CEA.\267\ The 
Commission proposed to limit the exemption set forth in the SPP 
Proposed Order to persons who are (1) ``appropriate persons,'' as 
defined in CEA sections 4(c)(3)(A) through (J); (2) ``eligible contract 
participants,'' as defined in CEA section 1a(18)(A) and Commission 
regulation 1.3(m); or (3) persons who actively participate in the 
generation, transmission, or distribution of electric energy.\268\ 
Furthermore, under the SPP Proposed Order, the agreement, contract, or 
transaction must be offered or sold pursuant to SPP's Tariff, which has 
been approved by FERC.\269\ The exemption in the SPP Proposed Order 
would extend to any person or class of persons offering, entering into, 
rendering advice, or rendering other services with respect to the SPP 
Covered Transactions.\270\
---------------------------------------------------------------------------

    \267\ See 80 FR at 29516-18; see also section II.C.1. supra.
    \268\ See 80 FR at 29517.
    \269\ See id.
    \270\ See id. at 29516.
---------------------------------------------------------------------------

    In the SPP Proposed Order, the Commission clarified that financial 
transactions that are not tied to the allocation of the physical 
capabilities of an electric energy transmission grid would not be 
suitable for exemption, and were therefore not covered by the SPP 
Proposed Order because such activity would not be inextricably linked 
to the physical delivery of electric energy.\271\
---------------------------------------------------------------------------

    \271\ See id. at 29494.
---------------------------------------------------------------------------

    The SPP Proposed Order expressly requested public comment on the 
Commission's proposed cost-benefit considerations, including with 
respect to reasonable alternatives; the magnitude of specific costs and 
benefits, and data or other information to estimate a dollar valuation; 
and any impact on the public interest factors specified in CEA section 
15(a).\272\ The Commission did not receive any comments on its proposed 
cost-benefit considerations as set forth in the SPP Proposed Order.
---------------------------------------------------------------------------

    \272\ See id. at 29522. As a general matter, in considering the 
costs and benefits of its actions, the Commission endeavors to 
quantify estimated costs and benefits where reasonably feasible. 
Here, however, the Commission considers the costs and benefits of 
this SPP Final Order mostly in qualitative terms because the 
commenters provided no such data or information to assist the 
Commission in doing so despite the SPP Proposed Order's request.
---------------------------------------------------------------------------

c. Summary of the SPP Final Order
    As discussed above, the SPP Final Order makes certain 
determinations with respect to the scope of relief, including the scope 
of the SPP Covered Transactions.\273\ The Commission determined that 
any products that are offered by SPP, presently or in the future, 
pursuant to a Tariff that has been approved by FERC and that fall 
within the provided definitions of the SPP Covered Transactions, as 
well as any modifications to existing products that are offered by SPP 
pursuant to a Tariff that has been approved by FERC and that do not 
alter the characteristics of the SPP Covered Transactions in a way that 
would cause such products to fall outside these definitions, are 
intended to be included within the SPP Final Order.\274\ In this way, 
the Commission's SPP Final Order provides beneficial flexibility and 
efficiency in that, if the product qualifies as one of the three SPP 
Covered Transactions in the SPP Final Order, SPP would not be required 
to request or to obtain future supplemental relief for a modified 
product. At the same time, however, the Commission declined to include 
the phrase ``directly related to, and a logical outgrowth of'' in the 
definitions of the SPP Covered Transactions because such phrase is too 
vague and too potentially far reaching to permit meaningful analysis 
under the Commission's statutory standard of review.
---------------------------------------------------------------------------

    \273\ See section IV.B. supra.
    \274\ See id.
---------------------------------------------------------------------------

    The SPP Final Order also sets forth certain conditions to the 
effectiveness of the exemption set forth therein. First, the Commission 
must be able to obtain through FERC positional and transactional data 
within SPP's possession for products in SPP's markets that are related 
to markets

[[Page 73081]]

subject to the Commission's jurisdiction, including any pertinent 
information concerning such data.\275\ Second, the exemption is 
expressly conditioned upon the requirement that neither the Tariff nor 
any other governing documents of SPP shall include any requirement that 
SPP notify its members prior to providing information to the Commission 
in response to a subpoena or other request for information or 
documentation.\276\
---------------------------------------------------------------------------

    \275\ Paragraph 4(a) of the SPP Final Order.
    \276\ Paragraph 4(b) of the SPP Final Order.
---------------------------------------------------------------------------

    In the discussion that follows, the Commission considers the costs 
and benefits of the SPP Final Order to the public and market 
participants generally, and to SPP specifically. It also considers the 
costs and benefits of the exemption described in the SPP Final Order, 
in light of the public interest factors enumerated in CEA section 
15(a).
d. Baseline
    The Commission's baseline for consideration of the costs and 
benefits of the SPP Final Order is the costs and benefits that the 
public and market participants (including SPP) would experience in the 
absence of this proposed regulatory action. In other words, the 
baseline is a situation in which the Commission takes no action and 
exercises jurisdiction, meaning that the transactions that are the 
subject of SPP's Exemption Application would be required to comply with 
all of the CEA and Commission regulations, as applicable.\277\ 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 regime of FERC.\278\
---------------------------------------------------------------------------

    \277\ Under this situation, the statutory private right of 
action in CEA section 22 would remain intact and would apply, in 
accordance with its terms, to all applicable provisions of the CEA.
    \278\ Some benefits of CFTC regulation overlap with benefits of 
FERC regulation and, therefore, are attributable to both regimes.
---------------------------------------------------------------------------

    The Commission also considers the regulatory landscape as it exists 
outside the context of the Dodd-Frank Act's enactment. In this 
instance, it also is important to highlight the fact 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.\279\ 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 No. 741. Moreover, the 
Commission has granted similar relief to other RTOs and ISOs regulated 
by either FERC or PUCT.\280\
---------------------------------------------------------------------------

    \279\ See supra section IV.A.2.b.
    \280\ See RTO-ISO Order; see also supra section II.A.
---------------------------------------------------------------------------

    In the discussion that follows, the Commission endeavored to, where 
reasonably feasible, estimate quantifiable dollar costs of the SPP 
Final Order. The benefits and costs of the SPP Final Order, however, 
are not presently susceptible to meaningful quantification. Most of the 
costs arise from limitations on the scope of the SPP Final Order, and 
many of the benefits tied to those limitations arise from avoiding 
defaults and their implications that are clearly large in magnitude, 
but impracticable to estimate. Being unable to quantify, the Commission 
discusses proposed costs and benefits in qualitative terms.
e. Benefits
    The Commission's comprehensive action in this SPP Final Order 
benefits the public and market participants in several substantial if 
unquantifiable ways, as discussed below. First, by cabining the SPP 
Covered Transactions to the definitions provided in this SPP Final 
Order, the Commission limits the financial risk that may impact the 
markets. The mitigation of such risk inures to the benefit of SPP, 
market participants, and the public, especially SPP's members and 
electric energy ratepayers.
    The condition that only ``appropriate persons'' may enter into the 
SPP Covered Transactions benefits the public and the entities that fall 
under the ``appropriate persons'' definition themselves, by ensuring 
that only persons with resources sufficient to understand and manage 
the risks of the transactions are permitted to engage in the same. 
Further, the condition requiring that the SPP Covered Transactions only 
be offered or sold pursuant to a FERC-approved Tariff benefits the 
public by, for example, ensuring that the SPP Covered Transactions are 
subject to a regulatory regime that is focused on the physical 
provision of reliable electric energy, and also has credit requirements 
that are designed to achieve risk management goals congruent with the 
regulatory objectives of the Commission's DCO and SEF 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 resulting from purely financial, 
speculative activity.
    The Commission's retention of power to redress any fraud or 
manipulation in connection with the SPP Covered Transactions protects 
market participants and the public generally, as well as the financial 
markets for electric energy products. For example, the SPP Final Order 
is conditioned upon the Commission's ability to obtain certain 
positional and transactional data within SPP's possession from SPP. 
Through this condition, the Commission expects that it will be able to 
continue discharging its regulatory duties under the CEA. Further, the 
condition that SPP may not, in the future, maintain any Tariff 
provisions that would require SPP to notify members prior to providing 
the Commission with information will help maximize the effectiveness of 
the Commission's enforcement program.
    In addition, explicitly providing an exemption from private claims 
under CEA section 22 will benefit market participants by allowing them 
to avoid legal and compliance costs due to an increased risk of private 
litigation under section 22. Moreover, granting an explicit exemption 
from the CEA section 22 private right of action reflects Congress' 
intent regarding how manipulation and fraud in the context of the RTO-
ISO markets should be addressed. Lastly, providing an exemption from 
private actions pursuant to CEA section 22 will prevent any potential 
tension between the enforcement programs of FERC and PUCT, on the one 
hand, and private enforcement under the CEA, on the other.
f. Costs
    The SPP Final Order is exemptive and provides ``appropriate 
persons'' engaging in SPP Covered Transactions relief from certain 
requirements of the CEA and attendant Commission regulations. As with 
any exemptive rule or order, the exemption in the SPP Final Order is 
permissive, meaning that SPP was not required to request it and is not 
required to rely on it. Accordingly, the Commission assumes that SPP 
would rely on the exemption only if the anticipated benefits warrant 
the costs of the exemption.
    The Commission is of the view that SPP, market participants, and 
the public will experience minimal, if any, ongoing costs as a result 
of the determinations

[[Page 73082]]

and conditions set forth in the SPP Final Order because, as SPP 
certifies pursuant to Commission regulation 140.99(c)(3)(ii), the 
attendant conditions are substantially similar to requirements that SPP 
and its market participants already incur in complying with FERC 
regulations.
    The requirement that all parties to the agreements, contracts, or 
transactions that are covered by the exemption in the SPP Final Order 
must be (1) an ``appropriate person,'' as defined sections 4(c)(3)(A) 
through (J) of the CEA; (2) an ``eligible contract participant,'' as 
defined in section 1a(18)(A) of the CEA and in Commission regulation 
1.3(m); or (3) a ``person who actively participates in the generation, 
transmission, or distribution of electric energy,'' as defined in 
paragraph 5(f) of the SPP Final Order--is not likely to impose any 
significant, incremental costs on SPP because its existing legal and 
regulatory obligations under the FPA and FERC regulations mandate that 
only eligible market participants may engage in the SPP Covered 
Transactions.
    The requirement that the SPP Covered Transactions must be offered 
or sold pursuant to SPP's Tariff, which has been approved by FERC, is a 
statutory requirement for the exemption set forth in CEA section 
4(c)(6) and therefore is not a cost attributable to an act of 
discretion by the Commission.\281\ Moreover, requiring that SPP not 
operate outside its approved Tariff derives from existing legal 
requirements and is not a cost attributable to this SPP Final Order.
---------------------------------------------------------------------------

    \281\ See 7 U.S.C. 6(c)(6)(A), (B).
---------------------------------------------------------------------------

    As described above, FERC imposes on SPP and the SPP Market Monitor 
various information management requirements.\282\ These existing 
requirements are not materially different from the condition that 
neither SPP's Tariff nor other governing documents may include any 
requirement that SPP notify a member prior to providing information to 
the Commission in response to a subpoena, special call, or other 
request for information or documentation. This requirement is not 
likely to impose any significant, incremental costs on SPP because 
SPP's existing Tariff governing the sharing of information meets this 
condition.
---------------------------------------------------------------------------

    \282\ See section IV.A.2.b. supra.
---------------------------------------------------------------------------

    Requiring that an information sharing arrangement between the 
Commission and FERC be in full force and effect is not a cost to SPP or 
to other members of the public because it has been an inter-agency norm 
since 2005.\283\ The requirement that SPP comply with the Commission's 
requests on an as-needed basis for related transactional and positional 
market data will impose only minimal costs on SPP to respond because 
the Commission contemplates that any information requested will already 
be in SPP's possession.\284\
---------------------------------------------------------------------------

    \283\ The CFTC and FERC first signed an information sharing MOU 
on October 12, 2005. On January 2, 2014, as directed by Congress 
under the Dodd-Frank Act, the Commission and FERC entered into the 
CFTC-FERC Information Sharing MOU, which superseded the 2005 MOU and 
provided for the sharing of information for use in analyzing market 
activities and protecting market integrity. See supra note 56.
    \284\ SPP represents that its Tariff requires the sharing of 
information with the Commission without prior notice to market 
participants. See Exemption Application Attachments at 52, 54; see 
also section IV.B. supra.
---------------------------------------------------------------------------

    In addition, in granting an explicit exemption from the CEA section 
22 private right of action, the Commission notes that there may be 
minimal costs associated with the fact that private litigants will not 
be permitted to vindicate their own interests or directly contribute to 
those interests through litigation with respect to fraud and 
manipulation in the RTO-ISO markets. However, as stated above in 
section III.B.2., such costs are mitigated by the fact that FERC and 
PUCT will continue to pervasively regulate such markets. In addition, 
nothing in the SPP Final Order affects the Commission's own authority 
to address fraudulent or manipulative conduct in the RTO-ISO markets, 
including the Commission's authority to seek restitution for the 
benefit of victims. Also, as noted above in section III.B.2., the 
Commission encourages market participants who observe potential fraud 
or manipulation in the markets subject to the Commission's jurisdiction 
to bring their concerns to the Commission.
g. Consideration of Alternatives
    The Commission considered the costs and benefits of not issuing the 
exemption found in the SPP Final Order. The Commission declined this 
approach as inconsistent with Congressional intent and contrary to the 
public interest, since 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 requires the Commission to exempt from its 
regulatory oversight agreements, contracts, or transactions traded 
pursuant to a FERC-approved tariff, where such exemption is in the 
public interest and consistent with the purposes of the CEA. In 
addition, not issuing the exemption found in the SPP Final Order would 
result in SPP being treated differently from the RTOs and ISOs covered 
by the Commission's previous RTO-ISO Order.
    The Commission also considered the costs and benefits of expanding 
the definition of SPP Covered Transactions to include future products 
that are ``directly related to, and a logical outgrowth of'' existing 
products, as requested by SPP. The Commission declined this approach in 
part because of the concern that such an open-ended definition could 
present risks beyond those contemplated. At the same time, the 
Commission made clear that any new transactions that fall within the 
SPP Covered Transactions, which are explicitly defined in the SPP Final 
Order, and any modifications to existing transactions that do not alter 
the SPP Covered Transactions' characteristics in a way that would cause 
them to fall outside those definitions, that are offered by SPP 
pursuant to a FERC-approved Tariff, are intended to be included within 
the exemption in the SPP Final Order.\285\ This provides a benefit in 
that no supplemental relief for such products would be required, which 
is a cost-mitigating efficiency gain for SPP.
---------------------------------------------------------------------------

    \285\ See section IV.B. supra.
---------------------------------------------------------------------------

    The Commission also considered expressly preserving the statutory 
private right of action found in CEA section 22 with respect to fraud 
and manipulation. The Commission has considered the costs and benefits 
of such action in light of the comments received, and, for the reasons 
stated in section III.B.2., has been persuaded that issuing an explicit 
exemption from CEA section 22 is the appropriate course of action.
h. Consideration of CEA Section 15(a) Factors
i. Protection of Market Participants and the Public
    As explained above, the Commission does not foresee that the SPP 
Final Order will have any negative effect on the protection of market 
participants and the public. More specifically, the SPP Covered 
Transactions, in light of the representations of SPP and in the context 
of SPP's regulation by FERC, do not appear to generate significant 
risks of the nature of those addressed by the CEA. The Commission has 
attempted to delineate the definitional boundaries for the SPP Covered 
Transactions in a manner that appropriately ring-fences

[[Page 73083]]

against the possibility that they could generate such risks, either now 
or as they may evolve in the future. In addition, the Commission has 
limited the exemption set forth in the SPP Final Order to persons with 
resources sufficient to understand and manage the risks of the SPP 
Covered Transactions. This requirement serves to protect excluded 
market participants and it minimizes the risk of potential misuse of 
the exempt transactions.
ii. Efficiency, Competitiveness, and Financial Integrity of Futures 
Markets
    The Commission foresees little, if any, negative impact from the 
SPP Final Order on the efficiency, competitiveness, and financial 
integrity of markets regulated under the CEA. As discussed above, the 
Commission believes that the SPP Final Order will promote efficiency by 
allowing entities who partake of the exemption delineated therein 
transactional flexibility that the Commission understands to be 
valuable to their ability to efficiently deploy their limited 
resources. Further, the Commission believes that the SPP Final Order 
will increase competition by granting an exemption to SPP and 
appropriate persons, as defined in the SPP Final Order, that is similar 
in scope to the exemption granted to other RTOs and ISOs in the RTO-ISO 
Order. In addition, as discussed above, 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.
iii. Price Discovery
    The Commission does not believe that the SPP Final Order will 
materially impair price discovery in non-exempt markets subject to the 
Commission's jurisdiction. As discussed above, the SPP Covered 
Transactions are used to manage unique electric industry operational 
risks. As such, Transmission Congestion Rights and Operating Reserve 
Transactions appear to be ill-suited for exchange trading and/or to 
serve a useful price discovery function. In addition, as discussed 
above, while Energy Transactions can serve as a source of settlement 
prices for other transactions in Commission-regulated markets, SPP has 
a market monitoring system in place to detect and deter manipulation 
that takes place on its markets.
iv. Sound Risk Management Practices
    The Commission believes that the SPP Final Order will promote the 
ability of SPP and its market participants to manage the operational 
risks posed by unique electric energy market characteristics, including 
the non-storable nature of electric energy and demand that can and 
frequently does fluctuate dramatically within a short time-span. As 
discussed above, the Commission understands that the SPP Covered 
Transactions are an important tool facilitating SPP's ability to 
efficiently manage operational risk in fulfillment of its public 
service mission to provide affordable, reliable electric energy.
v. Other Public Interest Considerations
    In exercising its sections 4(c)(1) and 4(c)(6) exemptive authority 
in the SPP Final Order, the Commission is acting to promote the broader 
public interest by facilitating the supply of affordable, reliable 
electric energy, as contemplated by Congress.\286\
---------------------------------------------------------------------------

    \286\ See related discussion in section I. supra.
---------------------------------------------------------------------------

3. Amended RTO-ISO Order
a. Background
    As discussed above, the RTO-ISO Order currently exempts contracts, 
agreements, and transactions for the purchase or sale of the limited 
electric energy-related products that are specifically described within 
the RTO-ISO Order from certain provisions of the CEA and Commission 
regulations, with the exception of the Commission's general anti-fraud 
and anti-manipulation authority, and scienter-based prohibitions, under 
CEA sections 2(a)(1)(B), 4(d), 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 under these sections including, but not limited 
to, Commission regulations 23.410(a) and (b), 32.4, and part 180.\287\ 
The RTO-ISO Order did not discuss CEA section 22.
---------------------------------------------------------------------------

    \287\ See RTO-ISO Order at 19912.
---------------------------------------------------------------------------

b. RTO-ISO Order Proposed Amendment and Request for Comment on the 
Commission's Proposed Consideration of Costs and Benefits
    As discussed above, the Commission issued the RTO-ISO Order 
Proposed Amendment on May 9, 2016. The RTO-ISO Order Proposed Amendment 
proposed to amend the RTO-ISO Order to clarify that the RTO-ISO Order 
would not exempt the RTO-ISO Covered Entities from the private right of 
action found in section 22 of the CEA with respect to the Excepted 
Provisions.\288\
---------------------------------------------------------------------------

    \288\ See supra section II.E.
---------------------------------------------------------------------------

    The RTO-ISO Order Proposed Amendment expressly requested public 
comment on the Commission's proposed cost-benefit considerations, 
including with respect to reasonable alternatives; the magnitude of 
specific costs and benefits, and data or other information to estimate 
a dollar valuation; and any impact on the public interest factors 
specified in CEA section 15(a).\289\
---------------------------------------------------------------------------

    \289\ 81 FR at 30253.
---------------------------------------------------------------------------

    The Commission received four comments regarding the cost-benefit 
analysis in the RTO-ISO Order Proposed Amendment. The four commenters 
argued that the Commission's cost-benefit analysis of the amendment 
proposed in the RTO-ISO Order Proposed Amendment was inadequate or 
insufficient, and/or that the Commission underestimated the legal and 
regulatory costs of allowing private claims against market participants 
in the RTO-ISO markets.\290\
---------------------------------------------------------------------------

    \290\ EEI at 11; EPSA at 10; IRC at 13; NFP Electric 
Associations at 7.
---------------------------------------------------------------------------

c. Summary of the Amended RTO-ISO Order
    The Amended RTO-ISO Order exempts the RTO-ISO market participants 
and RTO-ISO Covered Transactions from private actions pursuant to CEA 
section 22.
    In the discussion that follows, the Commission considers the costs 
and benefits of the Amended RTO-ISO Order to the public and market 
participants generally, and to the RTO-ISO Covered Entities 
specifically. It also considers the costs and benefits of the Amended 
RTO-ISO Order in light of the public interest factors enumerated in CEA 
section 15(a).
d. Baseline
    In the RTO-ISO Order Proposed Amendment, the Commission proposed to 
exclude from the exemption set forth in the RTO-ISO Order the private 
right of action under CEA section 22. Thus, the Commission's proposed 
baseline for consideration of the costs and benefits was the opposite 
of that action, i.e. the costs and benefits that the public and market 
participants would experience if the existing RTO-ISO Order were to be 
interpreted to exempt market participants from liability under the CEA 
section 22 private right of action.\291\ As discussed above,\292\ the 
Commission received a number of comments in response to the RTO-ISO

[[Page 73084]]

Order Proposed Amendment, and was persuaded by specific points made by 
such commenters to amend the RTO-ISO Order to grant an explicit 
exemption from the CEA section 22 private right of action. Given this 
change, the Commission believes it is more informative, for purposes of 
this analysis, to use as the baseline the costs and benefits that the 
public and market participants would have experienced if the RTO-ISO 
Order were amended as the Commission originally proposed to do in the 
RTO-ISO Order Proposed Amendment (in other words, if the RTO-ISO Order 
were amended to explicitly preserve the CEA section 22 private right of 
action).\293\
---------------------------------------------------------------------------

    \291\ See 81 FR at 30252.
    \292\ See supra sections III.B.1. and III.B.2.
    \293\ See 81 FR 30247-48.
---------------------------------------------------------------------------

    In the discussion that follows, the Commission endeavored to, where 
reasonably feasible, estimate quantifiable dollar costs of the 
amendment to the RTO-ISO Order. The costs and benefits of the 
amendment, however, are not presently susceptible to meaningful 
quantification. Being unable to quantify, the Commission discusses 
proposed costs and benefits in qualitative terms.
e. Benefits
    Using the baseline described above,\294\ amending the RTO-ISO Order 
to address the issue of exemption from the CEA section 22 private right 
of action one way or another will prevent future uncertainty with 
respect to the scope of the RTO-ISO Order. Amending the RTO-ISO Order 
to provide an express exemption from CEA section 22 will benefit RTO-
ISO market participants by allowing them to avoid legal and compliance 
costs due to an increased risk of private litigation under section 22. 
Moreover, granting an explicit exemption from the CEA section 22 
private right of action reflects Congress' intent regarding how 
manipulation and fraud in the context of the RTO-ISO markets should be 
addressed. Lastly, providing an exemption from private actions pursuant 
to CEA section 22 will prevent any potential tension between the 
enforcement programs of FERC and PUCT, on the one hand, and private 
enforcement under the CEA, on the other.
---------------------------------------------------------------------------

    \294\ See supra section V.C.3.d.
---------------------------------------------------------------------------

f. Costs
    Using the baseline described above,\295\ the Commission notes that 
there may be minimal costs associated with the fact that private 
litigants will not be permitted to vindicate their own interests or 
directly contribute to those interests through litigation with respect 
to fraud and manipulation in the RTO-ISO markets. However, as stated 
above in section III.B.2., such costs are mitigated by the fact that 
FERC and PUCT will continue to pervasively regulate such markets. In 
addition, nothing in the Amended RTO-ISO Order affects the Commission's 
own authority to address fraudulent or manipulative conduct in the RTO-
ISO markets, including the Commission's authority to seek restitution 
for the benefit of victims. Also, as noted above in section III.B.2., 
the Commission encourages market participants who observe potential 
fraud or manipulation in the markets subject to the Commission's 
jurisdiction to bring their concerns to the Commission.
---------------------------------------------------------------------------

    \295\ See id.
---------------------------------------------------------------------------

g. Consideration of Alternatives
    The Commission considered not issuing the Amended RTO-ISO Order. 
The Commission considered the uncertainty that has arisen with respect 
to the scope of the RTO-ISO Order and the availability of a private 
right of action under the RTO-ISO Order, particularly following the 
court rulings in the Aspire v. GDF Suez action,\296\ and has determined 
that a no-amendment alternative would prolong such uncertainty and thus 
be contrary to the public interest.
---------------------------------------------------------------------------

    \296\ See supra section II.D.
---------------------------------------------------------------------------

    The Commission also proposed to amend the RTO-ISO Order to 
explicitly preserve the CEA section 22 private right of action with 
respect to fraud and manipulation.\297\ The Commission has considered 
the costs and benefits of its proposed amendment in light of the 
comments received, and, for the reasons stated in section III.B.2., has 
been persuaded that issuing an explicit exemption from CEA section 22 
is the appropriate course of action.
---------------------------------------------------------------------------

    \297\ See 81 FR 30245.
---------------------------------------------------------------------------

h. Consideration of CEA Section 15(a) Factors
i. Protection of Market Participants and the Public
    The Commission notes that, while under the Amended RTO-ISO Order, 
private litigants will not be permitted to pursue fraud or manipulation 
claims under CEA section 22 with respect to the RTO-ISO markets, market 
participants will still be protected through the pervasive regulation 
of those markets by FERC and PUCT, and by the Commission's own 
authority to address fraud and manipulation in such markets.
ii. Efficiency, Competitiveness, and Financial Integrity of Futures 
Markets
    The Commission does not believe that the amendment to the RTO-ISO 
Order will have an effect on the efficiency, competitiveness, and 
financial integrity of the futures markets.
iii. Price Discovery
    The Commission does not believe that the amendment to the RTO-ISO 
Order will have an effect on price discovery.
iv. Sound Risk Management Practices
    The Commission does not believe that the amendment to the RTO-ISO 
Order will have a material effect on sound risk management practices.
v. Other Public Interest Considerations
    The Commission believes that the amendment to the RTO-ISO Order 
will foster the public interest for the reasons discussed above in 
section III.B.2.

VI. SPP Final Order

    Upon due consideration and consistent with the determinations set 
forth above, the Commission hereby issues the following order 
(``Order''):
    Pursuant to its authority under sections 4(c)(1) and 4(c)(6) of the 
Commodity Exchange Act (``CEA'' or Act'') and in accordance with 
sections 4(c)(1) and (2) of the Act, the Commodity Futures Trading 
Commission (``CFTC'' or ``Commission'')
    1. Exempts, subject to the conditions and limitations specified 
herein, the execution of the electric energy-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 and anti-manipulation authority, and scienter-based 
prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections 
including, but not limited to, Commission regulations 23.410(a) and 
(b), 32.4, and part 180. For the avoidance of doubt, this exemption 
applies to private actions pursuant to CEA section 22 with respect to 
all provisions of the Act, including the foregoing enumerated 
provisions, but does not restrict the Commission's enforcement 
authority pursuant to those provisions.
    2. Scope. This exemption applies only to agreements, contracts and

[[Page 73085]]

transactions that satisfy each of the following requirements:
    a. The agreement, contract or transaction is for the purchase and 
sale of one of the following electric energy-related products:
    (1) ``Transmission Congestion Rights'' defined in paragraph 5(a) of 
this Order, except that the exemption shall only apply to such 
Transmission Congestion Rights where:
    (a) Each Transmission Congestion Right is linked to, and the 
aggregate volume of Transmission Congestion Rights for any period of 
time is limited by, the physical capability (after accounting for 
counterflow) of the electric energy transmission system operated by SPP 
for such period;
    (b) SPP serves as the market administrator for the market on which 
the Transmission Congestion Rights are transacted;
    (c) Each party to the transaction is a member of SPP (or is SPP 
itself) and the transaction is executed on a market administered by 
SPP; and
    (d) The transaction does not require any party to make or take 
physical delivery of electric energy.
    (2) ``Energy Transactions'' as defined in paragraph 5(b) of this 
Order.
    (3) ``Operating Reserve Transactions'' as defined in paragraph 5(c) 
of this Order.
    b. Each party to the agreement, contract or transaction is:
    (1) An ``appropriate person,'' as defined in sections 4(c)(3)(A) 
through (J) of the CEA;
    (2) an ``eligible contract participant,'' as defined in section 
1a(18)(A) of the CEA and in Commission regulation 1.3(m); or
    (3) a ``person who actively participates in the generation, 
transmission, or distribution of electric energy,'' as defined in 
paragraph 5(f) of this Order.
    c. The agreement, contract or transaction is offered or sold 
pursuant to SPP's Tariff and that Tariff has been approved by the 
Federal Energy Regulatory Commission (``FERC'').
    3. Applicability to SPP. Subject to the conditions contained in the 
Order, the Order applies to SPP 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: Information sharing arrangements between 
the Commission and FERC that are acceptable to the Commission continue 
to be in effect, and SPP's compliance with the Commission's requests 
through FERC to share, on an as-needed basis and in connection with an 
inquiry consistent with the CEA and Commission regulations, positional 
and transactional data within SPP's possession for products in SPP's 
markets that are related to markets that are subject to the 
Commission's jurisdiction, including any pertinent information 
concerning such data.
    b. Notification of requests for information: Neither the Tariff nor 
any other governing documents of SPP shall include any requirement that 
SPP 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 ``Transmission Congestion 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 
electric energy, established on an electric energy market administered 
by SPP, at a specified source (i.e., where electric energy is deemed 
injected into the grid of SPP) and a specified sink (i.e., where 
electric energy is deemed withdrawn from the grid of SPP).
    b. ``Energy Transactions'' are transactions in a ``Day-Ahead 
Market'' or ``Real-Time Balancing Market,'' as those terms are defined 
in paragraphs 5(d) and 5(e) of this Order, for the purchase or sale of 
a specified quantity of electric energy at a specified location 
(including virtual bids and offers), where:
    (1) The price of the electric energy is established at the time the 
transaction is executed;
    (2) Performance occurs in the Real-Time Balancing Market by either:
    (a) Delivery or receipt of the specified electric energy, or
    (b) A cash payment or receipt at the price established in the Day-
Ahead Market or Real-Time Balancing Market (as permitted by SPP in its 
Tariff); 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 electric energy transmission system operated by SPP 
for that period of time.
    c. ``Operating Reserve Transactions'' are transactions:
    (1) In which SPP, for the benefit of load-serving entities and 
resources, purchases, through auction, the right, during a period of 
time as specified in SPP's Tariff, to require the seller of such right 
to operate electric energy facilities in a physical state such that the 
facilities can increase or decrease the rate of injection or withdrawal 
of a specified quantity of electric energy into or from the electric 
energy transmission system operated by SPP with:
    (a) Physical performance by the seller's facilities within a 
response time interval specified in SPP'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 SPP's Day-Ahead or Real-
Time Balancing Market, as those terms are defined in paragraphs 5(d) 
and 5(e) of this Order, price for electric energy applicable whenever 
SPP exercises its right that electric energy be delivered (including 
``Demand Response,'' as defined in paragraph 5(g) of this Order);
    (b) Compensation for the opportunity cost of not supplying or 
consuming electric energy or other services during any period during 
which SPP requires that the seller not supply energy or other services;
    (c) An upfront payment determined through the auction administered 
by SPP for this service;
    (d) An additional amount indexed to the frequency, duration, or 
other attributes of physical performance as specified in SPP's Tariff; 
and
    (3) In which the value, quantity, and specifications of such 
transactions for SPP for any period of time shall be limited to the 
physical capability of the electric energy transmission system operated 
by SPP for that period of time.
    d. ``Day-Ahead Market'' means an electric energy market 
administered by SPP on which the price of electric energy at a 
specified location is determined, in accordance with SPP'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.
    e. ``Real-Time Balancing Market'' means an electric energy market 
administered by SPP on which the price of electric energy at a 
specified location is determined, in accordance with SPP's Tariff, for 
specified time periods within the same 24-hour period.
    f. ``Person who actively participates in the generation, 
transmission, or distribution of electric energy'' means a person that 
is in the business of: (1) Generating, transmitting, or distributing 
electric energy; or (2) providing electric energy services that are 
necessary to support the reliable operation of the transmission system.
    g. ``Demand Response'' means the right of SPP to require that 
certain

[[Page 73086]]

sellers of such rights curtail consumption of electric energy from the 
electric energy transmission system operated by SPP during a future 
period of time as specified in SPP's Tariff.
    h. ``SPP'' means Southwest Power Pool, Inc. or any successor in 
interest to Southwest Power Pool.
    i. ``Tariff.'' Reference to a SPP ``Tariff'' includes a tariff, 
rate schedule or protocol.
    j. ``Exemption Application'' means the application for an exemptive 
order under 4(c)(6) of the CEA filed by SPP on October 17, 2013, as 
amended August 1, 2014.
    6. Effective Date. This Order is effective upon publication in the 
Federal Register.
    7. Delegation of Authority. The Commission hereby delegates, until 
such time as the Commission orders otherwise, to the Director of the 
Division of Market Oversight (``Division'') and to such members of the 
Division's staff acting under his or her direction as he or she may 
designate, in consultation with the General Counsel or such members of 
the General Counsel's staff acting under his or her direction as he or 
she may designate, the authority to request information from SPP 
pursuant to section 4(a) of this Order.
    This Order is based upon the representations made in the Exemption 
Application for an exemptive order under section 4(c) of the CEA filed 
by SPP,\298\ including those representations with respect to compliance 
with FERC regulation 35.47. It is also based on supporting materials 
provided to the Commission by SPP and its counsel, including a legal 
memorandum that, in the Commission's sole discretion, provides the 
Commission with assurance that the netting arrangements contained in 
the approach selected by SPP to satisfy the obligations contained in 
FERC regulation 35.47(d) will, in fact, provide SPP 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. 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 consistent with the public interest and 
purposes of the CEA. 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 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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    \298\ In the Matter of the Application for an Exemptive Order 
Under Section 4(c) of the Commodity Exchange Act by Southwest Power 
Pool, Inc., amended Aug. 1, 2014.
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VII. Amended RTO-ISO Order

    The Preamble to and Paragraph 1 of the RTO-ISO Order are revised to 
read as follows:
    Pursuant to its authority under sections 4(c)(1) and 4(c)(6) of the 
Commodity Exchange Act (``CEA'') or (``Act'') and in accordance with 
sections 4(c)(1) and (2) of the Act, the Commodity Futures Trading 
Commission (``Commission'')
    1. Exempts, subject to the conditions and limitations specified 
herein, the execution of the electric energy-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 and anti-manipulation authority, and scienter-based 
prohibitions, under CEA sections 2(a)(1)(B), 4(d), 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 under these sections 
including, but not limited to, Commission regulations 23.410(a) and 
(b), 32.4, and part 180. For the avoidance of doubt, this exemption 
applies to private actions pursuant to CEA section 22 with respect to 
all provisions of the Act, including the foregoing enumerated 
provisions, but does not restrict the Commission's enforcement 
authority pursuant to those provisions.

    Issued in Washington, DC, on October 18, 2016 by the Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.

Appendices to Final Order in Response to an Application From Southwest 
Power Pool, Inc. To Exempt Specified Transactions; Amendment to the 
Final Order Exempting Specified Transactions of Certain Independent 
System Operators and Regional Transmission Organizations--Commission 
Voting Summary, Chairman's Statement, and Commissioner's Statement

Appendix 1--Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Bowen and 
Giancarlo voted in the affirmative. No Commissioner voted in the 
negative.

Appendix 2--Statement of Chairman Timothy G. Massad

    I support this order, which comes after careful review of the 
issue, including comments from many market participants.
    Our electric markets are subject to regulation by the Federal 
Energy Regulatory Commission (FERC) and state regulators. Those 
regulators work to ensure that energy rates remain reasonable, 
transmission systems function reliably, and the interests of market 
participants are balanced with the protection of electricity 
consumers. In light of this, the CFTC exempted certain transactions 
in the regional transmission organization (RTO) and independent 
system operator (ISO) markets from most provisions of the Commodity 
Exchange Act (CEA), other than our own authority to pursue fraud and 
manipulation in those markets.
    One issue was left uncertain, which was whether private rights 
of action under the CEA could be brought against RTOs, ISOs, and 
other market participants. As a general matter, private rights of 
action are important to our regulatory structure. They can deter bad 
actors and protect market participants. But many market participants 
expressed concern that private actions could create costs within the 
markets in ways regulators did not anticipate. For example, several 
state consumer advocate offices noted that private rights of action 
could inadvertently introduce regulatory uncertainty and increase 
costs for consumers. So while private rights of action will remain 
critical overall in our markets, I am persuaded that, in this 
limited instance, they could cause instability and adversely affect 
consumers without necessarily enhancing supervision of markets or 
consumer protection.
    In making this determination, it is important that the CFTC 
continues to retain the authority to pursue fraud and manipulation 
within those markets. Aggrieved market participants and consumers 
also still have the ability to file complaints with the CFTC and our 
Whistleblower program.
    I thank the CFTC staff and my fellow Commissioners for their 
work on this matter, as well as those who took the time to provide 
us with feedback.

[[Page 73087]]

Appendix 3--Statement of Commissioner J. Christopher Giancarlo

    I support this commonsense decision that it is not in the public 
interest to allow private lawsuits against electric utilities 
trading in wholesale energy markets.
    Two months ago, I visited a construction site for a state-of-
the-art electric power plant in my home state of New Jersey. The 
facility was being built to withstand future weather events like 
Superstorm Sandy. The power it will produce will serve millions of 
local residents.
    Without today's practical decision, power utilities across the 
country may have hesitated or delayed building such new power plants 
because of the regulatory uncertainty and costs associated with 
private litigation--costs that surely would be passed on to millions 
of ratepayers throughout the country.
    As I have observed, preserving the Section 22 private right of 
action is not necessary in these heavily regulated markets.\1\ Both 
the CFTC and the FERC have the authority to seek redress for the 
claims of private persons who raise meritorious allegations of fraud 
or manipulation.
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    \1\ See Notice of Proposed Amendment to and Request for Comment 
on the Final Order in Response to 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 Regulatory Commission or the Public 
Utility Commission of Texas From Certain Provisions of the Commodity 
Exchange Act Pursuant to the Authority Provided in the Act, 81 FR 
30245, 30254-55 (May 16, 2016) (Statement of Dissent by Commissioner 
J. Christopher Giancarlo); J. Christopher Giancarlo, Op-Ed, Unneeded 
mandate would hurt N.J. consumers, The Record, Aug. 18, 2016, 
available at http://www.northjersey.com/opinion/opinion-guest-writers/unneeded-mandate-would-hurt-n-j-consumers-1.1647129.
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    I am heartened that the Commission now agrees and has concluded, 
with today's action, that allowing private lawsuits is not in the 
public interest.
    It is just commonsense.

[FR Doc. 2016-25571 Filed 10-21-16; 8:45 am]
 BILLING CODE 6351-01-P