Credit-Related Information Sharing in Organized Wholesale Electric Markets, 48118-48125 [2022-16609]
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48118
Federal Register / Vol. 87, No. 151 / Monday, August 8, 2022 / Proposed Rules
margin for uncleared swaps entered into by
the nonbank swap dealer. The CFTC requires
an aggregate of common equity tier 1 capital,
additional tier 1 capital and tier 2 capital
equal to or greater than 8 percent of the
nonbank swap dealer’s uncleared swap
margin amount. I look forward to
commenters’ response on the question as to
whether Japan’s capital requirement in an
amount equal to 25% of operating expenses
is comparable in purpose and effect to the
CFTC’s capital requirement equal to 8% of
the uncleared swap margin amount.
It is a priority for me to ensure that the
CFTC guards against complacency with postcrisis reforms, particularly after market
stresses from the pandemic and geopolitical
events. We should remember that our capital
rules serve as critical pillars of Dodd-Frank
reforms to help ensure the safety and
soundness of financial institutions, and to
protect the market from serious risks and
contagion. The CFTC has a duty to ensure
that our comparability assessment is sound,
and that the foreign regulator is like-minded
in not only rules but in their approach,
supervision and enforcement. Substituted
compliance must leave U.S. markets and our
economy at no greater risk than full
compliance with our rules.
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Appendix 5—Concurring Statement of
Commissioner Caroline D. Pham
I respectfully concur with the notice of
proposed order and request for comment on
an application for a capital comparability
determination submitted by the Financial
Services Agency (FSA) of Japan.
First, I want to recognize the staff’s work
as each of my fellow Commissioners has
done because this is not easy—not only for
this rulemaking, but also, generally speaking,
swap dealer oversight is an incredibly
complex regulatory regime. I also appreciate
your commitment to providing substituted
compliance.
In addition, in my past work in Japan and
with their financial sector, I have enjoyed
working with the FSA for many years, and
I appreciate their thoughtful and robust
oversight of their regulated firms. I also want
to say that my thoughts and heart are with
the people of Japan regarding the tragic loss
of Prime Minister Shinzo Abe.
As I mentioned in my opening statement,
the CFTC should take an outcomes-based
approach to substituted compliance that
appropriately balances and recognizes the
nature of cross-border regulation of global
markets and firms, and that preserves access
for U.S. persons to other markets.1 I
appreciate the Chairman’s remarks and I
welcome comments, particularly on
operational issues with additional reporting
requirements given the time difference,
language translation, conversion to USD,
local governance and regulatory
requirements, and differences in financial
reporting.
I urge a pragmatic approach with sufficient
time to implement conditions before any
1 See Statement of Dissent by Commissioner Scott
D. O’Malia on Comparability Determinations for
Australia, Canada, the European Union, Hong Kong,
Japan, and Switzerland: Certain Entity and
Transaction-Level Requirements (Dec. 20, 2013).
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compliance date, and I appreciate the
thought that the staff have been putting into
that. I speak from my past experience as a
global head of swap dealer compliance who
had to implement global regulatory reforms.
I’ll also note that in a crisis, such as during
the early days of the COVID–19 pandemic,
there was timely and effective engagement
between and amongst CFTC registrants and
U.S. regulators. I have been on many calls
and spoken to many regulators all over the
world, not only during COVID–19, but also
during times of market disruption or
potentially material events.
There is a difference between a phone call
and a formal written notice, and that’s just
one example of the conditions in this
proposal. So, I appreciate receiving
comments on this and any other operational
issues and the careful consideration by the
staff and the Commission of how to take a
practical approach to achieving appropriate
oversight and mitigation of risk to the United
States and to our markets.
[FR Doc. 2022–16684 Filed 8–5–22; 8:45 am]
BILLING CODE 6351–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 35
[Docket No. RM22–13–000]
Credit-Related Information Sharing in
Organized Wholesale Electric Markets
Federal Energy Regulatory
Commission, Department of Energy.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Federal Energy
Regulatory Commission (Commission) is
proposing, pursuant to section 206 of
the Federal Power Act, to amend its
regulations to permit credit-related
information sharing in organized
wholesale electric markets to ensure
that credit practices in those markets
result in jurisdictional rates that are just
and reasonable. The Commission seeks
public comment on the proposed
regulations.
DATES: Comments are due October 7,
2022. Reply comments are due
November 7, 2022.
ADDRESSES: Comments, identified by
docket number, may be filed in the
following ways. Electronic filing
through https://www.ferc.gov, is
preferred.
• Electronic Filing: Documents must
be filed in acceptable native
applications and print-to-PDF, but not
in scanned or picture format.
• For those unable to file
electronically, comments may be filed
by USPS mail or by hand (including
courier) delivery.
SUMMARY:
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Æ Mail via U.S. Postal Service Only:
Addressed to: Federal Energy
Regulatory Commission, Secretary of the
Commission, 888 First Street NE,
Washington, DC 20426.
Æ Hand (including courier) Delivery:
Deliver to: Federal Energy Regulatory
Commission, 12225 Wilkins Avenue,
Rockville, MD 20852.
The Comment Procedures Section of
this document contains more detailed
filing procedures.
FOR FURTHER INFORMATION CONTACT:
David Bowers (Technical Information),
Office of Energy Policy and
Innovation, 888 First Street NE,
Washington, DC 20426, 202–502–
8594, David.Bowers@ferc.gov
Patrick Metz (Legal Information), Office
of the General Counsel, 888 First
Street NE, Washington, DC 20426,
202–502–8197, Patrick.Metz@ferc.gov
SUPPLEMENTARY INFORMATION:
I. Introduction
1. Pursuant to section 206 of the
Federal Power Act (FPA),1 the
Commission is proposing to revise
§ 35.47 of title 18 of the Code of Federal
Regulations to permit regional
transmission organizations (RTO) and
independent system operators (ISOs) to
share among themselves credit-related
information regarding market
participants in organized wholesale
electric markets.2 The ability of RTOs/
ISOs to share credit-related information
among themselves could improve their
ability to accurately assess market
participants’ credit exposure and risks
related to their activities across
organized wholesale electric markets.
The ability to share such information
could also enable RTOs/ISOs to respond
to credit events more quickly and
effectively, minimizing the overall
credit-related risks of unexpected
defaults by market participants in
organized wholesale electric markets.
2. To ensure that RTOs’/ISOs’ credit
policies remain just and reasonable, the
Commission proposes to revise its
regulations to require each RTO/ISO to
adopt tariff provisions that permit the
sharing of its market participants’
credit-related information with other
RTOs/ISOs to enhance credit risk
1 16
U.S.C. 824e.
Credit Reforms in Organized Wholesale
Elec. Mkts., Order No. 741, 75 FR 65942 (Oct. 21,
2010), 133 FERC ¶ 61,060, at P 1 n.1 (2010)
(‘‘[O]rganized wholesale electric markets include
energy, transmission and ancillary service markets
operated by independent system operators . . . and
regional transmission organizations’’ which are
‘‘responsible for administering electric energy and
financial transmission rights markets.’’), order on
reh’g, Order No. 741–A, 134 FERC ¶ 61,126, reh’g
denied, Order No. 741–B, 135 FERC ¶ 61,242
(2011).
2 See
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assessment efforts. The Commission
seeks public comment on this proposed
reform.
B. Current Practices
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5. RTOs/ISOs assess a market
participant’s financial condition using
II. Background
credit-related information provided by
market participants and prospective
A. Previous Commission Action
market participants. RTOs/ISOs
3. Credit policies of regulated utilities generally receive this credit-related
information at specified intervals or
have long been a component of the
upon specific milestone events,
Commission’s regulatory agenda. For
including from: (1) interconnection
example, when the Commission issued
its pro forma Open Access Transmission customers during the generator
interconnection process; 7 (2)
Tariff (OATT) in Order No. 888, the
prospective
market participants during
Commission required each transmission
the
assessment
of applications for
provider’s tariff to include reasonable
market participant status; 8 (3) market
creditworthiness standards.3 The
participants during annual or periodic
Commission did not prescribe specific
credit reviews; 9 and (4) market
credit standards and processes,
participants in response to periodic
however, and thus left substantial
requests by RTO/ISO credit
discretion to transmission providers in
departments.10
assessing and managing credit risks.
6. Market participants and
4. In light of major distress in
prospective market participants
financial markets during the 2008
generally do not make the credit-related
financial crisis, the Commission
information they provide to RTOs/ISOs
explored the role of credit in the
publicly available, and RTOs/ISOs treat
organized wholesale electric markets
market participants’ credit-related
and the potential for policy reforms to
information as confidential information
strengthen credit practices and mitigate
subject to tariff provisions that limit the
4
credit-related risks. Subsequently, the
use of this information to specific
Commission issued Order No. 741,
purposes and limit the ability of RTOs/
which promulgated regulations
ISOs to share this information with
establishing minimum standards for
other parties.11
several aspects of credit policy in
7. Generally, in each Commissionorganized wholesale electric markets,
jurisdictional organized wholesale
collectively aimed at reducing
electric market, if a market participant
mutualized default risk, i.e., the risk that defaults and its collateral is insufficient
a default by one market participant is
to cover the amount of its outstanding
unsupported by collateral and therefore obligations, the remaining cost of those
must be socialized among all market
obligations is spread across the
participants.5 As the Commission
organized wholesale electric market’s
explained, risk management and
market participants (i.e., the default is
creditworthiness practices are important ‘‘mutualized’’).12 An RTO’s/ISO’s ability
to the organized wholesale electric
to reduce mutualized default risk can
markets because of this mutualized
default risk.6
7 See, e.g., PJM, Intra-PJM Tariffs, OATT, section
3 Promoting Wholesale Competition Through
Open Access Non-Discriminatory Transmission
Servs. by Pub. Utils.; Recovery of Stranded Costs by
Pub. Utils. & Transmitting Utils., Order No. 888, 61
FR 21540 (May 10, 1996), FERC Stats. & Regs.
¶ 31,036, at 31,937 (1996) (cross-referenced at 75
FERC ¶ 61,080) (setting forth section 11
(Creditworthiness) of the pro forma OATT), order
on reh’g, Order No. 888–A, 62 FR 12274 (Mar. 14,
1997), FERC Stats. & Regs. ¶ 31,048 (crossreferenced at 78 FERC ¶ 61,220), order on reh’g,
Order No. 888–B, 81 FERC ¶ 61,248 (1997), order
on reh’g, Order No. 888–C, 82 FERC ¶ 61,046
(1998), aff’d in relevant part sub nom. Transmission
Access Pol’y Study Grp. v. FERC, 225 F.3d 667 (D.C.
Cir. 2000), aff’d sub nom. N. Y. v. FERC, 535 U.S.
1 (2002).
4 Credit Reforms in Organized Wholesale Electric
Mkts., Notice of Proposed Rulemaking, 75 FR 4310
(Jan. 27, 2010), FERC Stats. & Regs. ¶ 32,651 (2010).
5 Order No. 741, 133 FERC ¶ 61,060 at PP 4, 12;
see also 18 CFR 35.47 (setting forth tariff provisions
related to credit practices in organized wholesale
electric markets).
6 Order No. 741, 133 FERC ¶ 61,060 at P 7.
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222 (0.0.0) (requiring PJM to keep confidential any
information provided by interconnection
customers).
8 See, e.g., SPP Open Access Transmission Tariff,
Sixth Revised Volume No. 1, attach. AE, section 3.7
(0.0.0) (requiring SPP to validate that prospective
market participants meet SPP’s credit
requirements).
9 See, e.g., NYISO MST, 26.1 MST attach. K
(Minimum Participation Criteria) (4.0.0), section
26.1.2 (requiring customers to demonstrate ongoing
compliance with the minimum participation
requirements in section 26.1.1).
10 PJM, Intra-PJM Tariffs, OATT, attach. Q
(45.0.0), section II.E (requiring market participants
to provide information on an ongoing basis).
11 See, e.g., ISO–NE, Transmission, Markets, and
Services Tariff, attach. D (ISO–NE Information
Policy) (22.0.0), section 2.0 (requiring ISO–NE
entities to use Confidential Information ‘‘solely to
perform their obligations under the NEPOOL
Agreement and the Participants Agreement’’).
12 See, e.g., PJM, Intra-PJM Tariffs, OA, section
15.2.2 (7.0.0); SPP, Open Access Transmission
Tariff, Sixth Revised Volume No. 1, attach. L,
section V (1.0.0).
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help to prevent defaults and minimize
the costs resulting from such defaults.
C. Technical Conference
8. In 2019, Energy Trading Institute
(ETI) submitted a petition requesting
that the Commission convene a
technical conference and consider a
potential rulemaking to improve RTO/
ISO credit practices.13 In response to
ETI’s petition, the Commission received
comments suggesting that the industry
would benefit from a discussion about
best practices and the differences among
RTO/ISO credit policies.14
9. On February 25 and 26, 2021,
Commission staff convened a technical
conference to discuss principles and
best practices for credit risk
management in organized wholesale
electric markets. Panelists at the
technical conference included credit
risk experts, market participants with
experience in RTO/ISO credit policy
compliance, and RTO/ISO risk officers.
Among other topics, the technical
conference addressed whether RTOs/
ISOs could share market participants’
credit-related information with one
another, whether market participants
had expressed concern about RTOs/
ISOs sharing such information, whether
there were rules or other barriers that
prevented RTOs/ISOs from sharing such
information, and how the Commission
could address concerns regarding the
confidential treatment of such
information.15
10. Panelists at the technical
conference stated that there could be
risk management benefits from sharing
market participants’ credit-related
information among RTO/ISO credit
departments.16 For example, one
panelist explained that it would be
helpful for an RTO/ISO credit
13 Energy Trading Institute Request for Technical
Conference and Petition for Rulemaking to Update
Credit and Risk Management Rules and Procedures
in the Organized Markets, Credit Reforms in
Organized Wholesale Electric Markets, Docket No.
AD20–6–000 (Dec. 16, 2019).
14 Comments of the Indicated PJM Transmission
Owners at 1–2, 4; Comments of Edison Electric
Institute at 3–4; Comments of International Energy
Credit Association at 9–10; Notice of Request for
Technical Conference and Petition for Rulemaking,
Docket No. AD20–6–000 (Feb. 11, 2020).
15 See Supplemental Notice of Technical
Conference, RTO/ISO Credit Principles and
Practices, Docket No. AD21–6–000, et al. (Feb. 10,
2021).
16 See RTO/ISO Credit Principles and Practices,
Technical Conference, Docket No. AD21–6–000, et
al., Tr. 100:24–102:20, 106:1–24 (Bloczynski) (Feb.
25, 2021); id. at Tr. 102:25–104:5 (Brown); id. at Tr.
104:7–105:9 (Prevratil); id. at Tr. 105:12–24
(Seghesio). Further, one panelist stated that creditrelated information sharing would bring additional
transparency to organized wholesale electric
markets, which would build confidence in those
markets to the benefit of market participants and
consumers. See id. at Tr. 30:15–23, 58:1–9 (Heinle).
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department to know that a market
participant is experiencing financial
distress in another organized wholesale
electric market in which it transacts
because the RTO/ISO credit department
could then focus its attention on
whether the market participant’s
financial distress in another market
could impact its own markets.17
11. In its post-technical conference
comments, the ISO/RTO Council
(IRC) 18 stated that credit-related
information sharing among RTOs/ISOs
would improve the RTOs’/ISOs’ ability
to anticipate and respond to credit risks
or prevent the occurrence of negative
credit events.19 The IRC explained that
the primary obstacles to RTOs/ISOs
sharing credit-related information are:
(1) the confidentiality provisions
included in RTO/ISO OATTs; and (2)
the lack of specific Commission
authorization or policy favoring creditrelated information sharing among
RTOs/ISOs.20
12. The IRC therefore recommended
that the Commission require RTOs/ISOs
to adopt tariff revisions permitting
RTOs/ISOs to share credit-related
information with other RTOs/ISOs. The
IRC recommended that the Commission
afford RTOs/ISOs the flexibility to
manage and mitigate credit risks, and to
allow each RTO/ISO to take any action
permitted under its OATT that the RTO/
ISO deems necessary in response to the
receipt of credit-related information.21
The IRC further explained that each
RTO/ISO that receives credit-related
information from another RTO/ISO
should be required to protect that
information in accordance with the
receiving RTO’s/ISO’s existing
confidentiality provisions.22 The IRC
also recommended that the Commission
state explicitly that RTOs/ISOs need not
obtain consent of market participants
before sharing credit-related
information, and argued that market
participants would be on notice that
17 Id.
at Tr. 104:21–105:6 (Prevratil).
IRC is composed of Commissionjurisdictional RTOs/ISOs, including PJM
Interconnection, L.L.C. (PJM), ISO New England
Inc. (ISO–NE), California Independent System
Operator Corporation (CAISO), New York
Independent System Operator, Inc. (NYISO),
Midcontinent Independent System Operator, Inc.
(MISO), and Southwest Power Pool, Inc. (SPP), as
well as three transmission system operators that are
not Commission-jurisdictional, including Electric
Reliability Council of Texas, Inc. (ERCOT), the
Alberta Electric System Operator (AESO), and the
Independent Electricity System Operator (IESO).
19 Comments of the ISO/RTO Council, RTO/ISO
Credit Principles and Practices, Docket No. AD21–
6–000, et al., at 2, 5–6 (filed June 7, 2021) (IRC
Comments).
20 Id. at 5.
21 Id. at 7–8.
22 Id. at 3.
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18 The
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RTOs/ISOs may share their creditrelated information by virtue of
language included in the RTOs’/ISOs’
OATTs.23
13. The IRC argued that sharing
market participants’ credit-related
information would be most effective
with uniform rules across all of the
RTOs/ISOs.24 The IRC provided the
following tariff language that each RTO/
ISO could include in its OATT in order
to implement IRC’s credit-related
information sharing approach:
[Transmission Provider] is permitted to
share [Market Participant and Applicant]
credit information with and receive [Market
Participant and Applicant] credit information
from other Commission-authorized Regional
Transmission Organizations and Independent
System Operators, for the purpose of credit
risk management and mitigation, provided
those entities agree to treat [Market
Participant and Applicant] information as
confidential under the terms for confidential
treatment of [Market Participant and
Applicant] information under their own
tariffs or other governing documents.
[Transmission Provider] is permitted to use
[Market Participant and Applicant]
information received from the entities listed
above to the same extent it may use similar
information from other [Market Participants
and Applicants] under the terms of this
Tariff.25
III. Need for Reform
14. We preliminarily find that it is
unjust and unreasonable for RTOs/ISOs
to be unable to share with each other
credit-related information about their
market participants. Further, we
preliminarily find that tariff provisions
that prohibit or otherwise limit an RTO/
ISO from sharing credit-related
information are unjust and
unreasonable. Tariff provisions that
prohibit or limit sharing of creditrelated information can hinder an
RTO’s/ISO’s ability to evaluate a market
participant’s creditworthiness and
respond to credit events, and, thus, in
turn, can hinder its ability to prevent or
mitigate default by market participants.
Because the costs of such defaults are
typically borne by non-defaulting
market participants, an RTO’s/ISO’s
lack of access to credit-related
information may lead to unjust and
unreasonable rates for its market
participants.
15. As the entities responsible for
administering the organized wholesale
electric markets, RTOs/ISOs are
responsible for credit risk management.
23 Id.
at 7.
24 Id.
25 Id. at 6. IRC also proposed language related to
sharing market participants’ credit-related
information with ERCOT, AESO, and IESO that is
omitted here.
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RTOs/ISOs perform this responsibility
in the organized wholesale electric
markets by instituting, maintaining, and
enforcing policies that balance the need
for robust market participation and
liquidity while seeking to minimize
mutualized default risk.
16. We believe that, in order to
manage credit risk in the organized
wholesale electric markets, RTOs/ISOs
must have adequate information on
their market participants’ financial
standing and on their business and
operational activities, including creditrelated information on their activities in
other organized wholesale electric
markets. This information allows for a
more effective assessment of those
market participants’ default risk.
Currently, however, each RTO/ISO only
has access to publicly available
information and to the credit-related
information provided by its own market
participants. Each RTO/ISO thus may
have limited visibility, if any, into their
market participants’ activities in other
organized wholesale electric markets.
17. Market participants increasingly
operate in multiple organized wholesale
electric markets, whether directly or
through affiliated entities, and their
trading activities have become more
complex and sophisticated.26 These
developments have complicated the
ability of an individual RTO/ISO credit
department to develop a complete,
accurate, and up-to-date picture of a
market participant’s current financial
condition due to real or perceived
barriers to information sharing among
RTOs/ISOs.27
18. Negative credit events affecting a
market participant’s credit standing in
one market may impact its credit
standing in other markets.28 An RTO/
ISO that cannot obtain market
participants’ credit-related information
arising from their activities in other
organized wholesale electric markets
may not be able to fully protect its
organized wholesale electric market
from mutualized default risk. Therefore,
in order to ensure just and reasonable
rates in the organized wholesale electric
markets by minimizing mutualized
default risk, we propose to permit each
RTO/ISO to share with other RTOs/ISOs
market participants’ credit-related
information.
26 See RTO/ISO Credit Principles and Practices,
Technical Conference, Docket No. AD21–6–000, et
al., Tr. 30:12–14 (Heinle) (Feb. 25, 2021).
27 IRC Comments at 2.
28 Order No. 741, 133 FERC ¶ 61,060 at P 3; see
also RTO/ISO Credit Principles and Practices,
Technical Conference, Docket No. AD21–6–000, et
al., Tr. 44:15–23 (Wasserman) (Feb. 25, 2021); id. at
Tr. 105:1–6 (Prevratil).
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19. Currently, RTO/ISO OATTs
generally contain provisions that treat a
market participant’s credit-related
information as confidential information
and, in most instances, prohibit an
RTO/ISO from sharing that creditrelated information with other RTOs/
ISOs without the consent of the market
participant.29 Effectively, such tariff
provisions allow a market participant to
limit the amount and quality of
information that an RTO/ISO may
access and use to assess that market
participant’s financial standing, and
these provisions therefore may pose an
unreasonable barrier to credit risk
management and mitigation by the
RTOs/ISOs.30
20. To minimize the costs of
mutualized defaults and ensure just and
reasonable rates, we preliminarily find
that tariff provisions that limit sharing
credit-related information among other
RTOs/ISOs limits the ability of an RTO/
ISO to perform accurate credit
assessments to limit the likelihood of
defaults in its marketplace and to
mitigate such defaults. Limits on
sharing this information may cause
unnecessary costs to be incurred by
non-defaulting market participants
resulting in rates that are unjust and
unreasonable. Given the role RTOs/ISOs
play in protecting organized wholesale
electric markets from the risks of
mutualized default, we preliminarily
find that these tariff provisions are
unjust or unreasonable.
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IV. Proposal
21. To address RTOs’/ISOs’ access to
credit-related information, we propose
to amend the Commission’s regulations
to require RTOs/ISOs to include in their
OATTs provisions that permit them to
share market participants’ credit-related
information with other RTOs/ISOs for
the purpose of credit risk management
and mitigation. We also propose to
permit the receiving RTO/ISO to use
market participant credit-related
information received from another RTO/
ISO to the same extent and for the same
purposes that the receiving RTO/ISO
may use credit-related information
29 See, e.g., ISO–NE, Transmission, Markets, and
Services Tariff, attach. D (ISO–NE Information
Policy) (22.0.0), section 2.1(e) (designating
information disclosed by a market participant to
satisfy ISO–NE minimum criteria for market
participation as Confidential Information in certain
circumstances); PJM, Intra-PJM Tariffs, OATT,
attach. Q (45.0.0), section III.C (same).
30 At the technical conference, MISO’s Chief
Financial Officer stated that the MISO OATT
prohibits the disclosure of a MISO market
participant’s financial distress even if that market
participant is on the verge of default. See RTO/ISO
Credit Principles and Practices, Technical
Conference, Docket No. AD21–6–000, et al., Tr.
116:6–10 (Brown) (Feb. 25, 2021).
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collected from its own market
participants.
22. These tariff provisions would
allow RTOs/ISOs to share a range of
credit-related information, such as the
following: (1) lists of market
participants with positions in that
market; (2) reports and metrics around
risk and credit exposures; (3) disclosure
that a market participant or affiliate has
defaulted on any of its financial or
contractual obligations, failed to pay
invoices on a timely basis, or failed to
meet a collateral call; (4) information
regarding a market participant’s or its
affiliate’s unresolved credit/collateral
issues; (5) information indicating that a
market participant or its affiliate has an
increased risk of default, such as
instances where a market participant or
its affiliate has experienced a material
adverse condition or material adverse
change under an RTO/ISO OATT or
related agreement; and (6) any other
information on a market participant or
its affiliate that indicates a possible
material adverse change in
creditworthiness or financial status or
an unreasonable credit risk. We seek
comment on what restrictions, if any,
there should be on the types of creditrelated information that may be shared
between RTOs/ISOs.
23. We also preliminarily find that an
RTO’s/ISO’s sharing of a market
participant’s credit-related information
with another RTO/ISO must not be
conditioned on the consent of the
market participant. As discussed above,
current tariff provisions implicitly
impose this barrier to credit-related
information sharing, and we believe that
this barrier is unjust and unreasonable.
As IRC argues, a market participant
facing financial difficulty would have
little incentive to consent to creditrelated information sharing.31 Under
our proposal, RTOs/ISOs would not be
required to notify market participants
before sharing credit-related information
with another RTO/ISO. Instead, under
our proposal, the RTOs’/ISOs’ OATTs as
revised would provide notice that
credit-related information could be
shared on a confidential basis with
other RTOs/ISOs for the purpose of
credit risk management and mitigation.
We agree with IRC that permitting
RTOs/ISOs to share credit-related
information without their having to
obtain a market participant’s consent or
to provide notice would facilitate
expeditious information sharing and
would thus allow for improved risk
mitigation.32
31 IRC
Comments at 7.
32 Id.
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48121
24. To properly manage credit risk,
reduce the likelihood of credit defaults,
protect non-defaulting market
participants, and minimize mutualized
default risk, RTOs/ISOs currently (1)
monitor and analyze credit-related
information on an ongoing basis, and (2)
use available credit-related information
to respond effectively to negative credit
events. We believe that the reform
proposed herein would allow RTOs/
ISOs to gain additional visibility into
their market participants’ financial
condition and to administer organized
wholesale electric markets more
effectively both as part of ongoing
‘‘business-as-usual’’ credit risk
management practices and during
market or credit events.
25. The RTO/ISO credit departments
regularly meet with each other to
discuss policies that could reduce credit
risks, but they currently do not disclose
or discuss issues related to the activities
of specific market participants that
operate in multiple organized wholesale
electric markets.33 Technical conference
panelists stated that an RTO/ISO may
benefit simply from the ability to
request that another RTO/ISO verify that
a market participant has participated
appropriately in another organized
wholesale electric market.34 We
preliminarily find that RTOs/ISOs
would benefit from the ability to discuss
the creditworthiness of specific market
participants, and permitting RTOs/ISOs
to share credit-related information with
other RTOs/ISOs will allow these
discussions to take place and better
inform RTOs/ISOs in the management
of credit risk in the organized wholesale
electric markets on an ongoing basis.
26. Further, we believe that creditrelated information sharing would prove
especially useful before, during, and
after a credit event.35 The sharing of
market participant-specific creditrelated information could help RTOs/
ISOs prevent or mitigate losses in the
event that a market participant
experiences financial distress, and
potentially prevent default in one
organized wholesale electric market
from triggering default in another.36
Credit-related information sharing
would give RTOs/ISOs better visibility
into a market participant’s credit
standing in other organized wholesale
electric markets. This visibility could
33 RTO/ISO Credit Principles and Practices,
Technical Conference, Docket No. AD21–6–000, et
al., Tr. 106:3–24 (Bloczynski) (Feb. 25, 2021).
34 Id. at Tr. 110:12–22 (Prevratil); id. at Tr.
111:19–23 (Bloczynski).
35 See id. at Tr. 117:5–13 (Brown) (emphasizing
the potential value in sharing credit-related
information during credit events).
36 Id. at Tr. 106:21–24 (Bloczynski).
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allow RTOs/ISOs to take action to
protect non-defaulting market
participants in their own markets from
costs associated with potential and
actual defaults, such as restricting
market activity in response to negative
credit events in other markets.
27. Because credit events can develop
rapidly 37 and we cannot anticipate
every potential credit event 38 or factor
that may call for the sharing of creditrelated information, we propose to
provide each RTO/ISO with the
discretion to share credit-related
information as it sees fit. An RTO/ISO
would have discretion as to what creditrelated information it chooses to
provide to other RTOs/ISOs and under
what circumstances and on what
timeline it chooses to do so. However,
we expect that RTOs/ISOs would use
reasonable efforts to respond
expeditiously to reasonable requests for
credit-related information from other
RTOs/ISOs. We seek comment on
whether RTOs’/ISOs’ discretion in
sharing market participant credit-related
information with each other should be
limited in any specific ways or to any
specific circumstances.
28. The proposal would not change
the existing discretion an RTO/ISO has
to act on credit-related information,
regardless of the source of that
information. This approach is consistent
with the Commission’s past precedent
to provide RTOs/ISOs discretion in
matters of creditworthiness.39 The
discretion provided to RTOs/ISOs in
managing negative credit events is not
unfettered, and the regulation we
propose would clarify that the receiving
RTO/ISO can use market participant
credit-related information received from
another RTO/ISO to the same extent and
for the same purposes that the receiving
RTO/ISO may use credit-related
information collected from its own
market participants. We seek comment
on whether RTOs’/ISOs’ discretion in
acting on market participant creditrelated information it receives from
another RTO/ISO be limited in any
specific ways or under any specific
circumstances.
29. Further our proposed regulation
would require that an RTO/ISO that
37 Id.
at Tr. 105:14–16 (Seghesio).
purposes of this notice of proposed
rulemaking (NOPR), ‘‘credit event’’ means any type
of event that could affect a market participants’
credit standing.
39 See, e.g., N.Y. Indep. Sys. Operator, Inc., 170
FERC ¶ 61,054, at P 30 (2020) (‘‘We agree with
NYISO that the proposed tariff language will allow
NYISO the reasonable discretion to evaluate
individual facts and circumstances, as necessary, to
protect the NYISO-administered markets without
limiting NYISO to act only in specific scenarios of
increased credit risk enumerated in the tariff’’).
receives credit-related information from
another RTO/ISO keep confidential that
credit-related information as it would
any other credit-related information
received directly from one of its own
market participants. We preliminarily
find that this would ensure that all
market participants’ credit-related
information would continue to be
safeguarded by an RTO/ISO in
accordance with the confidentiality
protections of the receiving RTO’s/ISO’s
OATT.
30. At the technical conference,
panelists expressed concerns about the
confidentiality protections of shared
credit-related information.40
Additionally, a commenter expressed
concern about using market-related
events as the triggering factor for
information sharing as it could
exacerbate the event by burdening the
market participants and RTO/ISO
staff.41 To address such concerns, we
seek comment on any additional
restrictions that should be placed on
RTOs/ISOs in their management and
use of credit-related information
obtained through sharing or the types of
credit-related information that could be
shared.
31. We clarify that we are not
proposing that RTOs/ISOs be required
to adopt IRC’s proposed tariff language.
Instead, we propose that each RTO/ISO
would submit a compliance filing that
would be consistent with a final rule in
this proceeding. In that filing, the RTO/
ISO would propose revisions to their
OATTs or other governing documents
that would permit credit-related
information sharing as provided in the
final rule. We also seek comment on
whether 60 days after the effective date
of any final rule is sufficient time to
develop new tariff language in response
to a potential final rule on credit-related
information sharing.
32. We clarify that our proposal here
would permit but not require RTOs/
ISOs to share credit-related information
with other RTOs/ISOs. As discussed
above, an RTO/ISO would retain the
discretion on whether to share creditrelated information. This approach
addresses the problem identified at the
technical conference and in postconference comments: that RTOs/ISOs
may be constrained by the
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38 For
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40 See RTO/ISO Credit Principles and Practices,
Technical Conference, Docket No. AD21–6–000, et
al., Tr. 103:7–12 (Brown) (Feb. 25, 2021).
41 ETI Comments at 13 (‘‘If extreme events are the
only trigger, the Commission risks burdening
market participants and RTO/ISO staff as they
manage through those events as well as making the
extreme events worse by taking actions that
exacerbate the event, such as demanding additional
collateral that would halt beneficial market
activity.’’).
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confidentiality provisions of each
RTO’s/ISO’s OATT from sharing creditrelated information with each other. By
relying on the discretion of RTOs/ISOs,
this proposal would allow RTO/ISO
credit departments to share creditrelated information without the
potential burden of reporting
requirements.
33. While we believe the structure
proposed herein is a just and reasonable
approach, we acknowledge the potential
benefits of adopting requirements that
RTOs/ISOs share credit-related
information with other RTOs/ISOs.
Adopting requirements that RTOs/ISOs
share credit-related information with
other RTOs/ISOs could potentially
ensure a baseline sharing of creditrelated information, which may reduce
the financial losses to non-defaulting
market participants during credit
events. In particular, RTOs/ISOs may be
able to mitigate or even prevent credit
events if they obtain more complete
credit-related information about market
participants prior to any credit event,
and mandatory credit-related
information sharing could increase the
likelihood that RTOs/ISOs have that
more complete information available.
Accordingly, we seek comment on
whether the Commission should adopt
requirements that RTOs/ISOs share
credit-related information with other
RTOs/ISOs on a routine basis (e.g.,
monthly sharing of a list of market
participants), in certain circumstances
(e.g., when a market participant misses
a collateral call), or upon the request of
another RTO/ISO, as well as any
proposals on the frequency or timeliness
of such sharing. We seek comment on
the types or categories of credit-related
information that might be included in
any sharing requirement. In particular,
we seek comment on whether and, if so,
how to require sharing of the categories
of information discussed above.42
34. While we recognize the potential
benefits of requiring RTOs/ISOs to share
credit-related information, we also
acknowledge the potential burdens that
may accompany such an approach. For
example, some rules could diminish the
flexibility an RTO/ISO has to respond to
a dynamic credit-related event. Other
rules may require RTOs/ISOs to expend
additional resources on credit risk
management, which could raise costs or
impose additional burdens on both
RTOs/ISOs and market participants.43
Accordingly, we also seek comment on
the benefits and burdens (if any) of any
42 See
supra P 22.
RTO/ISO Credit Principles and Practices,
Technical Conference, Docket No. AD21–6–000, et
al., Tr. 103:13–17 (Brown) (Feb. 25, 2021).
43 See
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potential requirements to share creditrelated information on RTOs/ISOs and
market participants.
35. Finally, we note that the IRC
requested that the Commission allow
RTOs/ISOs to share credit-related
information not only with other RTOs/
ISOs, but also with other market
operators, such as ERCOT, AESO, and
IESO. We recognize that market
participants in Commissionjurisdictional organized wholesale
electric markets also transact in markets
that are not Commissionjurisdictional,44 and also commodities
and derivative markets that are subject
to the jurisdiction of other regulators,
including the Commodity Futures
Trading Commission.
36. We do not propose herein to
require tariff provisions that would
allow for credit-related information
sharing with markets that are not
Commission-jurisdictional, however,
because we believe that there are
unresolved issues with such a proposal,
including how the Commission could
ensure the protection of market
participants’ confidential information in
the absence of authority to take remedial
action. We seek comment on possible
frameworks that would account for
jurisdictional limitations while still
enabling Commission-jurisdictional
RTOs/ISOs to share and receive creditrelated information with and from other
non-jurisdictional market operators.
V. Information Collection Statement
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37. The Office of Management and
Budget’s (OMB) regulations require
approval of certain information
collection requirements imposed by
agency rules. Upon approval of a
collection(s) of information, OMB will
assign an OMB control number and an
expiration date. Respondents subject to
the filing requirements of a rule will not
be penalized for failing to respond to
these collections of information unless
the collections of information display a
valid OMB control number.
38. This notice of proposed
rulemaking proposes to amend the
Commission’s regulations pursuant to
44 For example, the default and bankruptcy of the
Brazos Electric Power Cooperative in ERCOT after
Winter Storm Uri resulted in claimed losses of
$9,757,536 by MISO in February 2021. Brazos Elec.
Power Coop. Inc., No. 4:21–BK–30725 (Bankr. S.D.
Tex.).
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section 206 of the Federal Power Act, to
permit RTOs/ISOs to share among
themselves credit-related information
about market participants in organized
wholesale electric markets. To
accomplish this, the Commission
proposes to require RTOs/ISOs to adopt
tariff revisions reflecting this reform.
Such filings would be made under Part
35 of the Commission’s regulations.
39. The Commission is submitting
these reporting requirements to OMB for
its review and approval under section
3507(d) of the Paperwork Reduction
Act. Comments are solicited on whether
the information will have practical
utility, the accuracy of provided burden
estimates, ways to enhance the quality,
utility, and clarity of the information to
be collected, and any suggested methods
for minimizing the respondent’s burden,
including the use of automated
information techniques.
40. Please send comments concerning
the collection of information and the
associated burden estimates to: Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street NW, Washington, DC 20503,
Attention: Desk Officer for the Federal
Energy Regulatory Commission. Due to
security concerns, comments should be
sent electronically to the following
email address: oira_submission@
omb.eop.gov. Comments submitted to
OMB should refer to OMB Control No.
1902–[TBD].
41. Please submit a copy of your
comments on the information collection
to the Commission via the eFiling link
on the Commission’s website at https://
www.ferc.gov. If you are not able to file
comments electronically, please send a
copy of your comments to: Federal
Energy Regulatory Commission,
Secretary of the Commission, 888 First
Street NE, Washington, DC 20426.
Comments on the information collection
that are sent to FERC should refer to
Docket No. RM22–13–000.
42. Title: Credit-Related Information
Sharing in Organized Wholesale Electric
Markets.
43. Action: Proposed collection of
information in accordance with RM22–
13–000.
44. OMB Control No.: 1902–[TBD].
45. Respondents for this Rulemaking:
RTOs/ISOs.
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48123
46. Frequency of Information
Collection: One-time compliance filing
and ongoing information sharing (the
latter information would not be
submitted to the Commission).
47. Necessity of Information: The
proposed rule will require that RTOs/
ISOs submit to the Commission a onetime compliance filing proposing tariff
revisions. Additionally, RTOs/ISOs will
be permitted to share credit related
information among themselves to
improve their ability to accurately
assess market participants’ credit
exposure and risks related to their
activities across organized wholesale
electric markets.
48. Internal Review: The Commission
has reviewed the changes and has
determined that such changes are
necessary. These requirements conform
to the Commission’s need for efficient
information collection, communication,
and management within the energy
industry in support of the Commission’s
ensuring just and reasonable rates. The
Commission has specific, objective
support for the burden estimates
associated with the information
collection requirements.
49. The Commission’s estimate
contains two sub-estimates regarding
burden and cost. One estimate is for the
one-time compliance filing that will be
submitted to the Commission by RTOs/
ISOs for the purpose of revising or
amending their tariffs to allow creditrelated information sharing, as outlined
in this proposal. The second estimate is
of the ongoing costs associated with
RTOs/ISOs sharing credit-related
information with each other.45
50. The Commission estimates
burden 46 and cost 47 as follows:
45 Note: The information sharing between RTOs/
ISOs will not be submitted to the Commission; the
estimate reflects the time and resources required for
individual RTOs/ISOs to share information with
one another.
46 ‘‘Burden’’ is the total time, effort, or financial
resources expended by persons to generate,
maintain, retain, or disclose or provide information
to or for a Federal agency. For further explanation
of what is included in the estimated burden, refer
to 5 CFR 1320.3.
47 Commission staff estimates that the
respondents’ skill set (and wages and benefits) for
Docket No. RM22–13–000 are comparable to those
of Commission employees. Based on the
Commission’s Fiscal Year 2021 average cost of
$180,703/year (for wages plus benefits, for one fulltime employee), $87.00/hour is used.
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B. Number of
respondents
A. Collection
C. Annual
number of
responses per
respondent
E. Average
burden hrs.
& cost per
response
D. Total
number of
responses
F. Total annual
hr. burdens &
total annual cost
G. Cost per
respondent
(Column D ×
Column E)
(Column F ÷
Column B)
(Column B ×
Column C)
RTO/ISOs (one-time compliance filing) 48.
RTO/ISOs (ongoing information sharing) 49.
6
1
6
6
2
12
4 hrs.; $348 ......
Totals ..........................................
........................
—
........................
— ......................
VI. Environmental Analysis
51. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant adverse effect on the human
environment.50 We conclude that
neither an Environmental Assessment
nor an Environmental Impact Statement
is required for this NOPR under section
380.4(a)(15) of the Commission’s
regulations, which provides a
categorical exemption for approval of
actions under sections 205 and 206 of
the FPA relating to the filing of
schedules containing all rates and
charges for the transmission or sale of
electric energy subject to the
Commission’s jurisdiction, plus the
classification, practices, contracts and
regulations that affect rates, charges,
classifications, and services.51
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VII. Regulatory Flexibility Act Analysis
52. The Regulatory Flexibility Act of
1980 (RFA) 52 generally requires a
description and analysis of proposed
and final rules that will have significant
economic impact on a substantial
number of small entities. The Small
Business Administration (SBA) sets the
threshold for what constitutes a small
business. Under SBA’s size standards,53
RTOs/ISOs fall under the category of
Electric Bulk Power Transmission and
Control (North American Industry
Classification System (NAICS) code
48 The Commission’s hourly and cost estimates
for the one-time compliance filing assumes that
each RTO/ISO would need to develop and file tariff
revisions with the Commission.
49 The Commission does not know the extent of
information sharing that would occur in this
proposed rule but estimates that information
sharing may occur roughly twice per year on
average, per RTO/ISO. The Commission invites
comment by affected entities if they believe the
estimate is unreasonable.
50 Reguls. Implementing the Nat’l Envt’l Pol’y Act,
Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC
Stats. & Regs. Preambles 1986–1990 ¶ 30,783 (1987)
(cross-referenced at 41 FERC ¶ 61,284).
51 18 CFR 380.4(a)(15).
52 5 U.S.C. 601–612.
53 13 CFR 121.201.
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25 hrs.; $2,175
221121), with a size threshold of 500
employees (including the entity and its
associates).54
53. The six RTOs/ISOs (SPP, MISO,
PJM, ISO–NE, NYISO, and CAISO) each
employ more than 500 employees and
are not considered small.
54. According to SBA guidance, the
determination of significance of impact
‘‘should be seen as relative to the size
of the business, the size of the
competitor’s business, and the impact
the regulation has on larger
competitors.’’ 55 We do not consider the
estimated costs of the proposals in this
NOPR to be a significant economic
impact. As a result, we certify that the
proposals in this NOPR will not have a
significant economic impact on a
substantial number of small entities.
VIII. Comment Procedures
55. The Commission invites interested
persons to submit comments on the
matters and issues addressed and the
regulation proposed in this notice to be
adopted, including any related matters
or alternative proposals that
commenters may wish to discuss.
Comments are due October 7, 2022;
reply comments are due November 7,
2022. Comments must refer to Docket
No. RM22–13–000, and must include
the commenter’s name, the organization
they represent, if applicable, and their
address in their comments. All
comments will be placed in the
Commission’s public files and may be
viewed, printed, or downloaded
54 The RFA definition of ‘‘small entity’’ refers to
the definition provided in the Small Business Act,
which defines a ‘‘small business concern’’ as a
business that is independently owned and operated
and that is not dominant in its field of operation.
The Small Business Administrations’ regulations at
13 CFR 121.201 define the threshold for a small
Electric Bulk Power Transmission and Control
entity (NAICS code 221121) to be 500 employees.
See 5 U.S.C. 601(3) (citing section 3 of the Small
Business Act, 15 U.S.C. 632).
55 U.S. Small Business Administration, ‘‘A Guide
for Government Agencies How to Comply with the
Regulatory Flexibility Act,’’ at 18 (May 2012),
https://www.sba.gov/sites/default/files/advocacy/
rfaguide_0512_0.pdf.
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150 hrs.;
$13,050.
48 hrs.; $4,176
198 hrs.;
$17,226.
$2,175
$696
—
remotely as described in the Document
Availability section below. Commenters
on this proposal are not required to
serve copies of their comments on other
commenters.
56. The Commission encourages
comments to be filed electronically via
the eFiling link on the Commission’s
website at https://www.ferc.gov. The
Commission accepts most standard
word processing formats. Documents
created electronically using word
processing software must be filed in
native applications or print-to-PDF
format and not in a scanned format.
Commenters filing electronically do not
need to make a paper filing.
57. Commenters that are not able to
file comments electronically may file an
original of their comment by USPS mail
or by courier-or other delivery services.
For submission sent via USPS only,
filings should be mailed to: Federal
Energy Regulatory Commission, Office
of the Secretary, 888 First Street NE,
Washington, DC 20426. Submission of
filings other than by USPS should be
delivered to: Federal Energy Regulatory
Commission, 12225 Wilkins Avenue,
Rockville, MD 20852.
IX. Document Availability
58. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the internet through the
Commission’s Home Page (https://
www.ferc.gov). At this time, the
Commission has suspended access to
the Commission’s Public Reference
Room due to the President’s March 13,
2020 proclamation declaring a National
Emergency concerning the Novel
Coronavirus Disease (COVID–19).
59. From the Commission’s Home
Page on the internet, this information is
available on eLibrary. The full text of
this document is available on eLibrary
in PDF and Microsoft Word format for
viewing, printing, and/or downloading.
To access this document in eLibrary,
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type the docket number excluding the
last three digits of this document in the
docket number field.
60. User assistance is available for
eLibrary and the Commission’s website
during normal business hours from the
Commission’s Online Support at 202–
502–6652 (toll free at 1–866–208–3676)
or email at ferconlinesupport@ferc.gov,
or the Public Reference Room at (202)
502–8371, TTY (202) 502–8659. Email
the Public Reference Room at
public.referenceroom@ferc.gov.
List of Subjects in 18 CFR Part 35
By direction of the Commission.
Issued: July 28, 2022.
Debbie-Anne A. Reese,
Deputy Secretary.
In consideration of the foregoing, the
Commission proposes to amend part 35,
subpart J, title 18, Code of Federal
Regulations, as follows:
PART 35—FILING OF RATE
SCHEDULES AND TARIFFS
Authority: 16 U.S.C. 791a–825r, 2601–
2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352.
2. Amend § 35.47 by adding paragraph
(h) to read as follows:
■
§ 35.47 Tariff provisions regarding credit
practices in organized wholesale electric
markets.
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*
*
*
*
(h) Permit the sharing of market
participant credit-related information
with, and receipt of market participant
credit-related information from, other
organized wholesale electric markets for
the purpose of credit risk management
and mitigation, provided such market
participant credit-related information is
treated upon receipt as confidential
under the terms for the confidential
treatment of market participant
information set forth in the tariff or
other governing document of the
receiving organized wholesale electric
market; and permit the receiving
organized wholesale electric market to
use market participant credit-related
information received from another
organized wholesale electric market to
the same extent and for the same
purposes that the receiving organized
wholesale electric market may use
credit-related information collected
from its own market participants.
BILLING CODE 6717–01–P
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33 CFR Part 165
[Docket Number USCG–2022–0652]
RIN 1625–AA00
Safety Zone; Ohio River, Louisville, KY
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard is proposing
to establish a temporary safety zone for
all navigable waters of the Ohio River
from mile marker (MM) 602.5 to MM
603.5 from 7 p.m. to 1 a.m. on October
24 and 25, 2022. This action is
necessary to provide for the safety of life
on these navigable waters near
Louisville, KY during a film stunt. This
proposed rulemaking would prohibit
persons and vessels from being in the
safety zone unless authorized by the
Captain of the Port Ohio Valley or a
designated representative. We invite
your comments on this proposed
rulemaking.
Comments and related material
must be received by the Coast Guard on
or before September 7, 2022.
ADDRESSES: You may submit comments
identified by docket number USCG–
2022–0652 using the Federal Decision
Making Portal at https://
www.regulations.gov. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
DATES:
1. The authority citation for part 35
continues to read as follows:
■
[FR Doc. 2022–16609 Filed 8–5–22; 8:45 am]
Coast Guard
SUMMARY:
Electric power rates, Electric utilities,
Reporting and recordkeeping
requirements.
*
DEPARTMENT OF HOMELAND
SECURITY
If
you have questions about this proposed
rulemaking, call or email MST2
Christopher Roble, U.S. Coast Guard;
telephone 502–779–5336, email
Christopher.J.Roble@uscg.mil.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Table of Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
FR Federal Register
MM Mile marker
NPRM Notice of proposed rulemaking
§ Section
U.S.C. United States Code
II. Background, Purpose, and Legal
Basis
On July 22, 2022, Messiah’s Star LLC
notified the Coast Guard that it will be
conducting a film stunt from 7 p.m. on
October 24, 2022 to 1 a.m. on October
25, 2022, as part of filming for a film
titled ‘‘Just One Life.’’ The stunt is a
PO 00000
Frm 00035
Fmt 4702
Sfmt 4702
48125
controlled fall and is to take place from
the Big Four Pedestrian Bridge to the
Ohio River below at MM 603. The event
will include 3 swimmers, a deck boat,
and a houseboat.
The purpose of this rulemaking is to
ensure the safety of vessels, stunt crew
personnel, and the navigable waters
before, during, and after the scheduled
event. The Coast Guard is proposing this
rulemaking under authority in 46 U.S.C.
70034 (previously 33 U.S.C. 1231).
III. Discussion of Proposed Rule
The COTP is proposing to establish a
safety zone from 7 p.m. on October 24,
2022 to 1 a.m. on October 25, 2022. The
safety zone would cover all navigable
waters of the Ohio River between MM
602.5 and MM 603.5. The duration of
the zone is intended to ensure the safety
of vessels and these navigable waters
before, during, and after the scheduled
7 p.m. to 1 a.m. film stunt. No vessel or
person would be permitted to enter the
safety zone without obtaining
permission from the COTP or a
designated representative. The
regulatory text we are proposing appears
at the end of this document.
IV. Regulatory Analyses
We developed this proposed rule after
considering numerous statutes and
Executive orders related to rulemaking.
Below we summarize our analyses
based on a number of these statutes and
Executive orders, and we discuss First
Amendment rights of protestors.
A. Regulatory Planning and Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits.
This NPRM has not been designated a
‘‘significant regulatory action,’’ under
Executive Order 12866. Accordingly,
the NPRM has not been reviewed by the
Office of Management and Budget
(OMB).
This regulatory action determination
is based on the size, location, duration,
and time-of-day of the safety zone. This
safety zone would restrict transit on a
one-mile stretch of the Ohio River for 6
hours on one night. Moreover, the Coast
Guard would issue a Broadcast Notice to
Mariners via VHF–FM marine channel
16 about the zone.
B. Impact on Small Entities
The Regulatory Flexibility Act of
1980, 5 U.S.C. 601–612, as amended,
requires Federal agencies to consider
the potential impact of regulations on
small entities during rulemaking. The
E:\FR\FM\08AUP1.SGM
08AUP1
]]>Agencies
[Federal Register Volume 87, Number 151 (Monday, August 8, 2022)]
[Proposed Rules]
[Pages 48118-48125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16609]
=======================================================================
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 35
[Docket No. RM22-13-000]
Credit-Related Information Sharing in Organized Wholesale
Electric Markets
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
proposing, pursuant to section 206 of the Federal Power Act, to amend
its regulations to permit credit-related information sharing in
organized wholesale electric markets to ensure that credit practices in
those markets result in jurisdictional rates that are just and
reasonable. The Commission seeks public comment on the proposed
regulations.
DATES: Comments are due October 7, 2022. Reply comments are due
November 7, 2022.
ADDRESSES: Comments, identified by docket number, may be filed in the
following ways. Electronic filing through https://www.ferc.gov, is
preferred.
Electronic Filing: Documents must be filed in acceptable
native applications and print-to-PDF, but not in scanned or picture
format.
For those unable to file electronically, comments may be
filed by USPS mail or by hand (including courier) delivery.
[cir] Mail via U.S. Postal Service Only: Addressed to: Federal
Energy Regulatory Commission, Secretary of the Commission, 888 First
Street NE, Washington, DC 20426.
[cir] Hand (including courier) Delivery: Deliver to: Federal Energy
Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.
The Comment Procedures Section of this document contains more
detailed filing procedures.
FOR FURTHER INFORMATION CONTACT:
David Bowers (Technical Information), Office of Energy Policy and
Innovation, 888 First Street NE, Washington, DC 20426, 202-502-8594,
[email protected]
Patrick Metz (Legal Information), Office of the General Counsel, 888
First Street NE, Washington, DC 20426, 202-502-8197,
[email protected]
SUPPLEMENTARY INFORMATION:
I. Introduction
1. Pursuant to section 206 of the Federal Power Act (FPA),\1\ the
Commission is proposing to revise Sec. 35.47 of title 18 of the Code
of Federal Regulations to permit regional transmission organizations
(RTO) and independent system operators (ISOs) to share among themselves
credit-related information regarding market participants in organized
wholesale electric markets.\2\ The ability of RTOs/ISOs to share
credit-related information among themselves could improve their ability
to accurately assess market participants' credit exposure and risks
related to their activities across organized wholesale electric
markets. The ability to share such information could also enable RTOs/
ISOs to respond to credit events more quickly and effectively,
minimizing the overall credit-related risks of unexpected defaults by
market participants in organized wholesale electric markets.
---------------------------------------------------------------------------
\1\ 16 U.S.C. 824e.
\2\ See Credit Reforms in Organized Wholesale Elec. Mkts., Order
No. 741, 75 FR 65942 (Oct. 21, 2010), 133 FERC ] 61,060, at P 1 n.1
(2010) (``[O]rganized wholesale electric markets include energy,
transmission and ancillary service markets operated by independent
system operators . . . and regional transmission organizations''
which are ``responsible for administering electric energy and
financial transmission rights markets.''), order on reh'g, Order No.
741-A, 134 FERC ] 61,126, reh'g denied, Order No. 741-B, 135 FERC ]
61,242 (2011).
---------------------------------------------------------------------------
2. To ensure that RTOs'/ISOs' credit policies remain just and
reasonable, the Commission proposes to revise its regulations to
require each RTO/ISO to adopt tariff provisions that permit the sharing
of its market participants' credit-related information with other RTOs/
ISOs to enhance credit risk
[[Page 48119]]
assessment efforts. The Commission seeks public comment on this
proposed reform.
II. Background
A. Previous Commission Action
3. Credit policies of regulated utilities have long been a
component of the Commission's regulatory agenda. For example, when the
Commission issued its pro forma Open Access Transmission Tariff (OATT)
in Order No. 888, the Commission required each transmission provider's
tariff to include reasonable creditworthiness standards.\3\ The
Commission did not prescribe specific credit standards and processes,
however, and thus left substantial discretion to transmission providers
in assessing and managing credit risks.
---------------------------------------------------------------------------
\3\ Promoting Wholesale Competition Through Open Access Non-
Discriminatory Transmission Servs. by Pub. Utils.; Recovery of
Stranded Costs by Pub. Utils. & Transmitting Utils., Order No. 888,
61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ] 31,036, at 31,937
(1996) (cross-referenced at 75 FERC ] 61,080) (setting forth section
11 (Creditworthiness) of the pro forma OATT), order on reh'g, Order
No. 888-A, 62 FR 12274 (Mar. 14, 1997), FERC Stats. & Regs. ] 31,048
(cross-referenced at 78 FERC ] 61,220), order on reh'g, Order No.
888-B, 81 FERC ] 61,248 (1997), order on reh'g, Order No. 888-C, 82
FERC ] 61,046 (1998), aff'd in relevant part sub nom. Transmission
Access Pol'y Study Grp. v. FERC, 225 F.3d 667 (D.C. Cir. 2000),
aff'd sub nom. N. Y. v. FERC, 535 U.S. 1 (2002).
---------------------------------------------------------------------------
4. In light of major distress in financial markets during the 2008
financial crisis, the Commission explored the role of credit in the
organized wholesale electric markets and the potential for policy
reforms to strengthen credit practices and mitigate credit-related
risks.\4\ Subsequently, the Commission issued Order No. 741, which
promulgated regulations establishing minimum standards for several
aspects of credit policy in organized wholesale electric markets,
collectively aimed at reducing mutualized default risk, i.e., the risk
that a default by one market participant is unsupported by collateral
and therefore must be socialized among all market participants.\5\ As
the Commission explained, risk management and creditworthiness
practices are important to the organized wholesale electric markets
because of this mutualized default risk.\6\
---------------------------------------------------------------------------
\4\ Credit Reforms in Organized Wholesale Electric Mkts., Notice
of Proposed Rulemaking, 75 FR 4310 (Jan. 27, 2010), FERC Stats. &
Regs. ] 32,651 (2010).
\5\ Order No. 741, 133 FERC ] 61,060 at PP 4, 12; see also 18
CFR 35.47 (setting forth tariff provisions related to credit
practices in organized wholesale electric markets).
\6\ Order No. 741, 133 FERC ] 61,060 at P 7.
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B. Current Practices
5. RTOs/ISOs assess a market participant's financial condition
using credit-related information provided by market participants and
prospective market participants. RTOs/ISOs generally receive this
credit-related information at specified intervals or upon specific
milestone events, including from: (1) interconnection customers during
the generator interconnection process; \7\ (2) prospective market
participants during the assessment of applications for market
participant status; \8\ (3) market participants during annual or
periodic credit reviews; \9\ and (4) market participants in response to
periodic requests by RTO/ISO credit departments.\10\
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\7\ See, e.g., PJM, Intra-PJM Tariffs, OATT, section 222 (0.0.0)
(requiring PJM to keep confidential any information provided by
interconnection customers).
\8\ See, e.g., SPP Open Access Transmission Tariff, Sixth
Revised Volume No. 1, attach. AE, section 3.7 (0.0.0) (requiring SPP
to validate that prospective market participants meet SPP's credit
requirements).
\9\ See, e.g., NYISO MST, 26.1 MST attach. K (Minimum
Participation Criteria) (4.0.0), section 26.1.2 (requiring customers
to demonstrate ongoing compliance with the minimum participation
requirements in section 26.1.1).
\10\ PJM, Intra-PJM Tariffs, OATT, attach. Q (45.0.0), section
II.E (requiring market participants to provide information on an
ongoing basis).
---------------------------------------------------------------------------
6. Market participants and prospective market participants
generally do not make the credit-related information they provide to
RTOs/ISOs publicly available, and RTOs/ISOs treat market participants'
credit-related information as confidential information subject to
tariff provisions that limit the use of this information to specific
purposes and limit the ability of RTOs/ISOs to share this information
with other parties.\11\
---------------------------------------------------------------------------
\11\ See, e.g., ISO-NE, Transmission, Markets, and Services
Tariff, attach. D (ISO-NE Information Policy) (22.0.0), section 2.0
(requiring ISO-NE entities to use Confidential Information ``solely
to perform their obligations under the NEPOOL Agreement and the
Participants Agreement'').
---------------------------------------------------------------------------
7. Generally, in each Commission-jurisdictional organized wholesale
electric market, if a market participant defaults and its collateral is
insufficient to cover the amount of its outstanding obligations, the
remaining cost of those obligations is spread across the organized
wholesale electric market's market participants (i.e., the default is
``mutualized'').\12\ An RTO's/ISO's ability to reduce mutualized
default risk can help to prevent defaults and minimize the costs
resulting from such defaults.
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\12\ See, e.g., PJM, Intra-PJM Tariffs, OA, section 15.2.2
(7.0.0); SPP, Open Access Transmission Tariff, Sixth Revised Volume
No. 1, attach. L, section V (1.0.0).
---------------------------------------------------------------------------
C. Technical Conference
8. In 2019, Energy Trading Institute (ETI) submitted a petition
requesting that the Commission convene a technical conference and
consider a potential rulemaking to improve RTO/ISO credit
practices.\13\ In response to ETI's petition, the Commission received
comments suggesting that the industry would benefit from a discussion
about best practices and the differences among RTO/ISO credit
policies.\14\
---------------------------------------------------------------------------
\13\ Energy Trading Institute Request for Technical Conference
and Petition for Rulemaking to Update Credit and Risk Management
Rules and Procedures in the Organized Markets, Credit Reforms in
Organized Wholesale Electric Markets, Docket No. AD20-6-000 (Dec.
16, 2019).
\14\ Comments of the Indicated PJM Transmission Owners at 1-2,
4; Comments of Edison Electric Institute at 3-4; Comments of
International Energy Credit Association at 9-10; Notice of Request
for Technical Conference and Petition for Rulemaking, Docket No.
AD20-6-000 (Feb. 11, 2020).
---------------------------------------------------------------------------
9. On February 25 and 26, 2021, Commission staff convened a
technical conference to discuss principles and best practices for
credit risk management in organized wholesale electric markets.
Panelists at the technical conference included credit risk experts,
market participants with experience in RTO/ISO credit policy
compliance, and RTO/ISO risk officers. Among other topics, the
technical conference addressed whether RTOs/ISOs could share market
participants' credit-related information with one another, whether
market participants had expressed concern about RTOs/ISOs sharing such
information, whether there were rules or other barriers that prevented
RTOs/ISOs from sharing such information, and how the Commission could
address concerns regarding the confidential treatment of such
information.\15\
---------------------------------------------------------------------------
\15\ See Supplemental Notice of Technical Conference, RTO/ISO
Credit Principles and Practices, Docket No. AD21-6-000, et al. (Feb.
10, 2021).
---------------------------------------------------------------------------
10. Panelists at the technical conference stated that there could
be risk management benefits from sharing market participants' credit-
related information among RTO/ISO credit departments.\16\ For example,
one panelist explained that it would be helpful for an RTO/ISO credit
[[Page 48120]]
department to know that a market participant is experiencing financial
distress in another organized wholesale electric market in which it
transacts because the RTO/ISO credit department could then focus its
attention on whether the market participant's financial distress in
another market could impact its own markets.\17\
---------------------------------------------------------------------------
\16\ See RTO/ISO Credit Principles and Practices, Technical
Conference, Docket No. AD21-6-000, et al., Tr. 100:24-102:20, 106:1-
24 (Bloczynski) (Feb. 25, 2021); id. at Tr. 102:25-104:5 (Brown);
id. at Tr. 104:7-105:9 (Prevratil); id. at Tr. 105:12-24 (Seghesio).
Further, one panelist stated that credit-related information sharing
would bring additional transparency to organized wholesale electric
markets, which would build confidence in those markets to the
benefit of market participants and consumers. See id. at Tr. 30:15-
23, 58:1-9 (Heinle).
\17\ Id. at Tr. 104:21-105:6 (Prevratil).
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11. In its post-technical conference comments, the ISO/RTO Council
(IRC) \18\ stated that credit-related information sharing among RTOs/
ISOs would improve the RTOs'/ISOs' ability to anticipate and respond to
credit risks or prevent the occurrence of negative credit events.\19\
The IRC explained that the primary obstacles to RTOs/ISOs sharing
credit-related information are: (1) the confidentiality provisions
included in RTO/ISO OATTs; and (2) the lack of specific Commission
authorization or policy favoring credit-related information sharing
among RTOs/ISOs.\20\
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\18\ The IRC is composed of Commission-jurisdictional RTOs/ISOs,
including PJM Interconnection, L.L.C. (PJM), ISO New England Inc.
(ISO-NE), California Independent System Operator Corporation
(CAISO), New York Independent System Operator, Inc. (NYISO),
Midcontinent Independent System Operator, Inc. (MISO), and Southwest
Power Pool, Inc. (SPP), as well as three transmission system
operators that are not Commission-jurisdictional, including Electric
Reliability Council of Texas, Inc. (ERCOT), the Alberta Electric
System Operator (AESO), and the Independent Electricity System
Operator (IESO).
\19\ Comments of the ISO/RTO Council, RTO/ISO Credit Principles
and Practices, Docket No. AD21-6-000, et al., at 2, 5-6 (filed June
7, 2021) (IRC Comments).
\20\ Id. at 5.
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12. The IRC therefore recommended that the Commission require RTOs/
ISOs to adopt tariff revisions permitting RTOs/ISOs to share credit-
related information with other RTOs/ISOs. The IRC recommended that the
Commission afford RTOs/ISOs the flexibility to manage and mitigate
credit risks, and to allow each RTO/ISO to take any action permitted
under its OATT that the RTO/ISO deems necessary in response to the
receipt of credit-related information.\21\ The IRC further explained
that each RTO/ISO that receives credit-related information from another
RTO/ISO should be required to protect that information in accordance
with the receiving RTO's/ISO's existing confidentiality provisions.\22\
The IRC also recommended that the Commission state explicitly that
RTOs/ISOs need not obtain consent of market participants before sharing
credit-related information, and argued that market participants would
be on notice that RTOs/ISOs may share their credit-related information
by virtue of language included in the RTOs'/ISOs' OATTs.\23\
---------------------------------------------------------------------------
\21\ Id. at 7-8.
\22\ Id. at 3.
\23\ Id. at 7.
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13. The IRC argued that sharing market participants' credit-related
information would be most effective with uniform rules across all of
the RTOs/ISOs.\24\ The IRC provided the following tariff language that
each RTO/ISO could include in its OATT in order to implement IRC's
credit-related information sharing approach:
---------------------------------------------------------------------------
\24\ Id.
[Transmission Provider] is permitted to share [Market
Participant and Applicant] credit information with and receive
[Market Participant and Applicant] credit information from other
Commission-authorized Regional Transmission Organizations and
Independent System Operators, for the purpose of credit risk
management and mitigation, provided those entities agree to treat
[Market Participant and Applicant] information as confidential under
the terms for confidential treatment of [Market Participant and
Applicant] information under their own tariffs or other governing
documents. [Transmission Provider] is permitted to use [Market
Participant and Applicant] information received from the entities
listed above to the same extent it may use similar information from
other [Market Participants and Applicants] under the terms of this
Tariff.\25\
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\25\ Id. at 6. IRC also proposed language related to sharing
market participants' credit-related information with ERCOT, AESO,
and IESO that is omitted here.
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III. Need for Reform
14. We preliminarily find that it is unjust and unreasonable for
RTOs/ISOs to be unable to share with each other credit-related
information about their market participants. Further, we preliminarily
find that tariff provisions that prohibit or otherwise limit an RTO/ISO
from sharing credit-related information are unjust and unreasonable.
Tariff provisions that prohibit or limit sharing of credit-related
information can hinder an RTO's/ISO's ability to evaluate a market
participant's creditworthiness and respond to credit events, and, thus,
in turn, can hinder its ability to prevent or mitigate default by
market participants. Because the costs of such defaults are typically
borne by non-defaulting market participants, an RTO's/ISO's lack of
access to credit-related information may lead to unjust and
unreasonable rates for its market participants.
15. As the entities responsible for administering the organized
wholesale electric markets, RTOs/ISOs are responsible for credit risk
management. RTOs/ISOs perform this responsibility in the organized
wholesale electric markets by instituting, maintaining, and enforcing
policies that balance the need for robust market participation and
liquidity while seeking to minimize mutualized default risk.
16. We believe that, in order to manage credit risk in the
organized wholesale electric markets, RTOs/ISOs must have adequate
information on their market participants' financial standing and on
their business and operational activities, including credit-related
information on their activities in other organized wholesale electric
markets. This information allows for a more effective assessment of
those market participants' default risk. Currently, however, each RTO/
ISO only has access to publicly available information and to the
credit-related information provided by its own market participants.
Each RTO/ISO thus may have limited visibility, if any, into their
market participants' activities in other organized wholesale electric
markets.
17. Market participants increasingly operate in multiple organized
wholesale electric markets, whether directly or through affiliated
entities, and their trading activities have become more complex and
sophisticated.\26\ These developments have complicated the ability of
an individual RTO/ISO credit department to develop a complete,
accurate, and up-to-date picture of a market participant's current
financial condition due to real or perceived barriers to information
sharing among RTOs/ISOs.\27\
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\26\ See RTO/ISO Credit Principles and Practices, Technical
Conference, Docket No. AD21-6-000, et al., Tr. 30:12-14 (Heinle)
(Feb. 25, 2021).
\27\ IRC Comments at 2.
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18. Negative credit events affecting a market participant's credit
standing in one market may impact its credit standing in other
markets.\28\ An RTO/ISO that cannot obtain market participants' credit-
related information arising from their activities in other organized
wholesale electric markets may not be able to fully protect its
organized wholesale electric market from mutualized default risk.
Therefore, in order to ensure just and reasonable rates in the
organized wholesale electric markets by minimizing mutualized default
risk, we propose to permit each RTO/ISO to share with other RTOs/ISOs
market participants' credit-related information.
---------------------------------------------------------------------------
\28\ Order No. 741, 133 FERC ] 61,060 at P 3; see also RTO/ISO
Credit Principles and Practices, Technical Conference, Docket No.
AD21-6-000, et al., Tr. 44:15-23 (Wasserman) (Feb. 25, 2021); id. at
Tr. 105:1-6 (Prevratil).
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[[Page 48121]]
19. Currently, RTO/ISO OATTs generally contain provisions that
treat a market participant's credit-related information as confidential
information and, in most instances, prohibit an RTO/ISO from sharing
that credit-related information with other RTOs/ISOs without the
consent of the market participant.\29\ Effectively, such tariff
provisions allow a market participant to limit the amount and quality
of information that an RTO/ISO may access and use to assess that market
participant's financial standing, and these provisions therefore may
pose an unreasonable barrier to credit risk management and mitigation
by the RTOs/ISOs.\30\
---------------------------------------------------------------------------
\29\ See, e.g., ISO-NE, Transmission, Markets, and Services
Tariff, attach. D (ISO-NE Information Policy) (22.0.0), section
2.1(e) (designating information disclosed by a market participant to
satisfy ISO-NE minimum criteria for market participation as
Confidential Information in certain circumstances); PJM, Intra-PJM
Tariffs, OATT, attach. Q (45.0.0), section III.C (same).
\30\ At the technical conference, MISO's Chief Financial Officer
stated that the MISO OATT prohibits the disclosure of a MISO market
participant's financial distress even if that market participant is
on the verge of default. See RTO/ISO Credit Principles and
Practices, Technical Conference, Docket No. AD21-6-000, et al., Tr.
116:6-10 (Brown) (Feb. 25, 2021).
---------------------------------------------------------------------------
20. To minimize the costs of mutualized defaults and ensure just
and reasonable rates, we preliminarily find that tariff provisions that
limit sharing credit-related information among other RTOs/ISOs limits
the ability of an RTO/ISO to perform accurate credit assessments to
limit the likelihood of defaults in its marketplace and to mitigate
such defaults. Limits on sharing this information may cause unnecessary
costs to be incurred by non-defaulting market participants resulting in
rates that are unjust and unreasonable. Given the role RTOs/ISOs play
in protecting organized wholesale electric markets from the risks of
mutualized default, we preliminarily find that these tariff provisions
are unjust or unreasonable.
IV. Proposal
21. To address RTOs'/ISOs' access to credit-related information, we
propose to amend the Commission's regulations to require RTOs/ISOs to
include in their OATTs provisions that permit them to share market
participants' credit-related information with other RTOs/ISOs for the
purpose of credit risk management and mitigation. We also propose to
permit the receiving RTO/ISO to use market participant credit-related
information received from another RTO/ISO to the same extent and for
the same purposes that the receiving RTO/ISO may use credit-related
information collected from its own market participants.
22. These tariff provisions would allow RTOs/ISOs to share a range
of credit-related information, such as the following: (1) lists of
market participants with positions in that market; (2) reports and
metrics around risk and credit exposures; (3) disclosure that a market
participant or affiliate has defaulted on any of its financial or
contractual obligations, failed to pay invoices on a timely basis, or
failed to meet a collateral call; (4) information regarding a market
participant's or its affiliate's unresolved credit/collateral issues;
(5) information indicating that a market participant or its affiliate
has an increased risk of default, such as instances where a market
participant or its affiliate has experienced a material adverse
condition or material adverse change under an RTO/ISO OATT or related
agreement; and (6) any other information on a market participant or its
affiliate that indicates a possible material adverse change in
creditworthiness or financial status or an unreasonable credit risk. We
seek comment on what restrictions, if any, there should be on the types
of credit-related information that may be shared between RTOs/ISOs.
23. We also preliminarily find that an RTO's/ISO's sharing of a
market participant's credit-related information with another RTO/ISO
must not be conditioned on the consent of the market participant. As
discussed above, current tariff provisions implicitly impose this
barrier to credit-related information sharing, and we believe that this
barrier is unjust and unreasonable. As IRC argues, a market participant
facing financial difficulty would have little incentive to consent to
credit-related information sharing.\31\ Under our proposal, RTOs/ISOs
would not be required to notify market participants before sharing
credit-related information with another RTO/ISO. Instead, under our
proposal, the RTOs'/ISOs' OATTs as revised would provide notice that
credit-related information could be shared on a confidential basis with
other RTOs/ISOs for the purpose of credit risk management and
mitigation. We agree with IRC that permitting RTOs/ISOs to share
credit-related information without their having to obtain a market
participant's consent or to provide notice would facilitate expeditious
information sharing and would thus allow for improved risk
mitigation.\32\
---------------------------------------------------------------------------
\31\ IRC Comments at 7.
\32\ Id.
---------------------------------------------------------------------------
24. To properly manage credit risk, reduce the likelihood of credit
defaults, protect non-defaulting market participants, and minimize
mutualized default risk, RTOs/ISOs currently (1) monitor and analyze
credit-related information on an ongoing basis, and (2) use available
credit-related information to respond effectively to negative credit
events. We believe that the reform proposed herein would allow RTOs/
ISOs to gain additional visibility into their market participants'
financial condition and to administer organized wholesale electric
markets more effectively both as part of ongoing ``business-as-usual''
credit risk management practices and during market or credit events.
25. The RTO/ISO credit departments regularly meet with each other
to discuss policies that could reduce credit risks, but they currently
do not disclose or discuss issues related to the activities of specific
market participants that operate in multiple organized wholesale
electric markets.\33\ Technical conference panelists stated that an
RTO/ISO may benefit simply from the ability to request that another
RTO/ISO verify that a market participant has participated appropriately
in another organized wholesale electric market.\34\ We preliminarily
find that RTOs/ISOs would benefit from the ability to discuss the
creditworthiness of specific market participants, and permitting RTOs/
ISOs to share credit-related information with other RTOs/ISOs will
allow these discussions to take place and better inform RTOs/ISOs in
the management of credit risk in the organized wholesale electric
markets on an ongoing basis.
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\33\ RTO/ISO Credit Principles and Practices, Technical
Conference, Docket No. AD21-6-000, et al., Tr. 106:3-24 (Bloczynski)
(Feb. 25, 2021).
\34\ Id. at Tr. 110:12-22 (Prevratil); id. at Tr. 111:19-23
(Bloczynski).
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26. Further, we believe that credit-related information sharing
would prove especially useful before, during, and after a credit
event.\35\ The sharing of market participant-specific credit-related
information could help RTOs/ISOs prevent or mitigate losses in the
event that a market participant experiences financial distress, and
potentially prevent default in one organized wholesale electric market
from triggering default in another.\36\ Credit-related information
sharing would give RTOs/ISOs better visibility into a market
participant's credit standing in other organized wholesale electric
markets. This visibility could
[[Page 48122]]
allow RTOs/ISOs to take action to protect non-defaulting market
participants in their own markets from costs associated with potential
and actual defaults, such as restricting market activity in response to
negative credit events in other markets.
---------------------------------------------------------------------------
\35\ See id. at Tr. 117:5-13 (Brown) (emphasizing the potential
value in sharing credit-related information during credit events).
\36\ Id. at Tr. 106:21-24 (Bloczynski).
---------------------------------------------------------------------------
27. Because credit events can develop rapidly \37\ and we cannot
anticipate every potential credit event \38\ or factor that may call
for the sharing of credit-related information, we propose to provide
each RTO/ISO with the discretion to share credit-related information as
it sees fit. An RTO/ISO would have discretion as to what credit-related
information it chooses to provide to other RTOs/ISOs and under what
circumstances and on what timeline it chooses to do so. However, we
expect that RTOs/ISOs would use reasonable efforts to respond
expeditiously to reasonable requests for credit-related information
from other RTOs/ISOs. We seek comment on whether RTOs'/ISOs' discretion
in sharing market participant credit-related information with each
other should be limited in any specific ways or to any specific
circumstances.
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\37\ Id. at Tr. 105:14-16 (Seghesio).
\38\ For purposes of this notice of proposed rulemaking (NOPR),
``credit event'' means any type of event that could affect a market
participants' credit standing.
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28. The proposal would not change the existing discretion an RTO/
ISO has to act on credit-related information, regardless of the source
of that information. This approach is consistent with the Commission's
past precedent to provide RTOs/ISOs discretion in matters of
creditworthiness.\39\ The discretion provided to RTOs/ISOs in managing
negative credit events is not unfettered, and the regulation we propose
would clarify that the receiving RTO/ISO can use market participant
credit-related information received from another RTO/ISO to the same
extent and for the same purposes that the receiving RTO/ISO may use
credit-related information collected from its own market participants.
We seek comment on whether RTOs'/ISOs' discretion in acting on market
participant credit-related information it receives from another RTO/ISO
be limited in any specific ways or under any specific circumstances.
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\39\ See, e.g., N.Y. Indep. Sys. Operator, Inc., 170 FERC ]
61,054, at P 30 (2020) (``We agree with NYISO that the proposed
tariff language will allow NYISO the reasonable discretion to
evaluate individual facts and circumstances, as necessary, to
protect the NYISO-administered markets without limiting NYISO to act
only in specific scenarios of increased credit risk enumerated in
the tariff'').
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29. Further our proposed regulation would require that an RTO/ISO
that receives credit-related information from another RTO/ISO keep
confidential that credit-related information as it would any other
credit-related information received directly from one of its own market
participants. We preliminarily find that this would ensure that all
market participants' credit-related information would continue to be
safeguarded by an RTO/ISO in accordance with the confidentiality
protections of the receiving RTO's/ISO's OATT.
30. At the technical conference, panelists expressed concerns about
the confidentiality protections of shared credit-related
information.\40\ Additionally, a commenter expressed concern about
using market-related events as the triggering factor for information
sharing as it could exacerbate the event by burdening the market
participants and RTO/ISO staff.\41\ To address such concerns, we seek
comment on any additional restrictions that should be placed on RTOs/
ISOs in their management and use of credit-related information obtained
through sharing or the types of credit-related information that could
be shared.
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\40\ See RTO/ISO Credit Principles and Practices, Technical
Conference, Docket No. AD21-6-000, et al., Tr. 103:7-12 (Brown)
(Feb. 25, 2021).
\41\ ETI Comments at 13 (``If extreme events are the only
trigger, the Commission risks burdening market participants and RTO/
ISO staff as they manage through those events as well as making the
extreme events worse by taking actions that exacerbate the event,
such as demanding additional collateral that would halt beneficial
market activity.'').
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31. We clarify that we are not proposing that RTOs/ISOs be required
to adopt IRC's proposed tariff language. Instead, we propose that each
RTO/ISO would submit a compliance filing that would be consistent with
a final rule in this proceeding. In that filing, the RTO/ISO would
propose revisions to their OATTs or other governing documents that
would permit credit-related information sharing as provided in the
final rule. We also seek comment on whether 60 days after the effective
date of any final rule is sufficient time to develop new tariff
language in response to a potential final rule on credit-related
information sharing.
32. We clarify that our proposal here would permit but not require
RTOs/ISOs to share credit-related information with other RTOs/ISOs. As
discussed above, an RTO/ISO would retain the discretion on whether to
share credit-related information. This approach addresses the problem
identified at the technical conference and in post-conference comments:
that RTOs/ISOs may be constrained by the confidentiality provisions of
each RTO's/ISO's OATT from sharing credit-related information with each
other. By relying on the discretion of RTOs/ISOs, this proposal would
allow RTO/ISO credit departments to share credit-related information
without the potential burden of reporting requirements.
33. While we believe the structure proposed herein is a just and
reasonable approach, we acknowledge the potential benefits of adopting
requirements that RTOs/ISOs share credit-related information with other
RTOs/ISOs. Adopting requirements that RTOs/ISOs share credit-related
information with other RTOs/ISOs could potentially ensure a baseline
sharing of credit-related information, which may reduce the financial
losses to non-defaulting market participants during credit events. In
particular, RTOs/ISOs may be able to mitigate or even prevent credit
events if they obtain more complete credit-related information about
market participants prior to any credit event, and mandatory credit-
related information sharing could increase the likelihood that RTOs/
ISOs have that more complete information available. Accordingly, we
seek comment on whether the Commission should adopt requirements that
RTOs/ISOs share credit-related information with other RTOs/ISOs on a
routine basis (e.g., monthly sharing of a list of market participants),
in certain circumstances (e.g., when a market participant misses a
collateral call), or upon the request of another RTO/ISO, as well as
any proposals on the frequency or timeliness of such sharing. We seek
comment on the types or categories of credit-related information that
might be included in any sharing requirement. In particular, we seek
comment on whether and, if so, how to require sharing of the categories
of information discussed above.\42\
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\42\ See supra P 22.
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34. While we recognize the potential benefits of requiring RTOs/
ISOs to share credit-related information, we also acknowledge the
potential burdens that may accompany such an approach. For example,
some rules could diminish the flexibility an RTO/ISO has to respond to
a dynamic credit-related event. Other rules may require RTOs/ISOs to
expend additional resources on credit risk management, which could
raise costs or impose additional burdens on both RTOs/ISOs and market
participants.\43\ Accordingly, we also seek comment on the benefits and
burdens (if any) of any
[[Page 48123]]
potential requirements to share credit-related information on RTOs/ISOs
and market participants.
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\43\ See RTO/ISO Credit Principles and Practices, Technical
Conference, Docket No. AD21-6-000, et al., Tr. 103:13-17 (Brown)
(Feb. 25, 2021).
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35. Finally, we note that the IRC requested that the Commission
allow RTOs/ISOs to share credit-related information not only with other
RTOs/ISOs, but also with other market operators, such as ERCOT, AESO,
and IESO. We recognize that market participants in Commission-
jurisdictional organized wholesale electric markets also transact in
markets that are not Commission-jurisdictional,\44\ and also
commodities and derivative markets that are subject to the jurisdiction
of other regulators, including the Commodity Futures Trading
Commission.
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\44\ For example, the default and bankruptcy of the Brazos
Electric Power Cooperative in ERCOT after Winter Storm Uri resulted
in claimed losses of $9,757,536 by MISO in February 2021. Brazos
Elec. Power Coop. Inc., No. 4:21-BK-30725 (Bankr. S.D. Tex.).
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36. We do not propose herein to require tariff provisions that
would allow for credit-related information sharing with markets that
are not Commission-jurisdictional, however, because we believe that
there are unresolved issues with such a proposal, including how the
Commission could ensure the protection of market participants'
confidential information in the absence of authority to take remedial
action. We seek comment on possible frameworks that would account for
jurisdictional limitations while still enabling Commission-
jurisdictional RTOs/ISOs to share and receive credit-related
information with and from other non-jurisdictional market operators.
V. Information Collection Statement
37. The Office of Management and Budget's (OMB) regulations require
approval of certain information collection requirements imposed by
agency rules. Upon approval of a collection(s) of information, OMB will
assign an OMB control number and an expiration date. Respondents
subject to the filing requirements of a rule will not be penalized for
failing to respond to these collections of information unless the
collections of information display a valid OMB control number.
38. This notice of proposed rulemaking proposes to amend the
Commission's regulations pursuant to section 206 of the Federal Power
Act, to permit RTOs/ISOs to share among themselves credit-related
information about market participants in organized wholesale electric
markets. To accomplish this, the Commission proposes to require RTOs/
ISOs to adopt tariff revisions reflecting this reform. Such filings
would be made under Part 35 of the Commission's regulations.
39. The Commission is submitting these reporting requirements to
OMB for its review and approval under section 3507(d) of the Paperwork
Reduction Act. Comments are solicited on whether the information will
have practical utility, the accuracy of provided burden estimates, ways
to enhance the quality, utility, and clarity of the information to be
collected, and any suggested methods for minimizing the respondent's
burden, including the use of automated information techniques.
40. Please send comments concerning the collection of information
and the associated burden estimates to: Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street
NW, Washington, DC 20503, Attention: Desk Officer for the Federal
Energy Regulatory Commission. Due to security concerns, comments should
be sent electronically to the following email address:
[email protected]. Comments submitted to OMB should refer to
OMB Control No. 1902-[TBD].
41. Please submit a copy of your comments on the information
collection to the Commission via the eFiling link on the Commission's
website at https://www.ferc.gov. If you are not able to file comments
electronically, please send a copy of your comments to: Federal Energy
Regulatory Commission, Secretary of the Commission, 888 First Street
NE, Washington, DC 20426. Comments on the information collection that
are sent to FERC should refer to Docket No. RM22-13-000.
42. Title: Credit-Related Information Sharing in Organized
Wholesale Electric Markets.
43. Action: Proposed collection of information in accordance with
RM22-13-000.
44. OMB Control No.: 1902-[TBD].
45. Respondents for this Rulemaking: RTOs/ISOs.
46. Frequency of Information Collection: One-time compliance filing
and ongoing information sharing (the latter information would not be
submitted to the Commission).
47. Necessity of Information: The proposed rule will require that
RTOs/ISOs submit to the Commission a one-time compliance filing
proposing tariff revisions. Additionally, RTOs/ISOs will be permitted
to share credit related information among themselves to improve their
ability to accurately assess market participants' credit exposure and
risks related to their activities across organized wholesale electric
markets.
48. Internal Review: The Commission has reviewed the changes and
has determined that such changes are necessary. These requirements
conform to the Commission's need for efficient information collection,
communication, and management within the energy industry in support of
the Commission's ensuring just and reasonable rates. The Commission has
specific, objective support for the burden estimates associated with
the information collection requirements.
49. The Commission's estimate contains two sub-estimates regarding
burden and cost. One estimate is for the one-time compliance filing
that will be submitted to the Commission by RTOs/ISOs for the purpose
of revising or amending their tariffs to allow credit-related
information sharing, as outlined in this proposal. The second estimate
is of the ongoing costs associated with RTOs/ISOs sharing credit-
related information with each other.\45\
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\45\ Note: The information sharing between RTOs/ISOs will not be
submitted to the Commission; the estimate reflects the time and
resources required for individual RTOs/ISOs to share information
with one another.
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50. The Commission estimates burden \46\ and cost \47\ as follows:
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\46\ ``Burden'' is the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. For
further explanation of what is included in the estimated burden,
refer to 5 CFR 1320.3.
\47\ Commission staff estimates that the respondents' skill set
(and wages and benefits) for Docket No. RM22-13-000 are comparable
to those of Commission employees. Based on the Commission's Fiscal
Year 2021 average cost of $180,703/year (for wages plus benefits,
for one full-time employee), $87.00/hour is used.
[[Page 48124]]
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C. Annual
B. Number of number of D. Total E. Average burden hrs. & F. Total annual hr. G. Cost per
A. Collection respondents responses per number of cost per response burdens & total annual respondent
respondent responses cost
.............. .............. (Column B x ......................... (Column D x Column E).... (Column F /
Column C) Column B)
--------------------------------------------------------------------------------------------------------------------------------------------------------
RTO/ISOs (one-time compliance 6 1 6 25 hrs.; $2,175.......... 150 hrs.; $13,050........ $2,175
filing) \48\.
RTO/ISOs (ongoing information 6 2 12 4 hrs.; $348............. 48 hrs.; $4,176.......... $696
sharing) \49\.
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Totals........................ .............. -- .............. --....................... 198 hrs.; $17,226........ --
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VI. Environmental Analysis
51. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\50\ We
conclude that neither an Environmental Assessment nor an Environmental
Impact Statement is required for this NOPR under section 380.4(a)(15)
of the Commission's regulations, which provides a categorical exemption
for approval of actions under sections 205 and 206 of the FPA relating
to the filing of schedules containing all rates and charges for the
transmission or sale of electric energy subject to the Commission's
jurisdiction, plus the classification, practices, contracts and
regulations that affect rates, charges, classifications, and
services.\51\
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\48\ The Commission's hourly and cost estimates for the one-time
compliance filing assumes that each RTO/ISO would need to develop
and file tariff revisions with the Commission.
\49\ The Commission does not know the extent of information
sharing that would occur in this proposed rule but estimates that
information sharing may occur roughly twice per year on average, per
RTO/ISO. The Commission invites comment by affected entities if they
believe the estimate is unreasonable.
\50\ Reguls. Implementing the Nat'l Envt'l Pol'y Act, Order No.
486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles
1986-1990 ] 30,783 (1987) (cross-referenced at 41 FERC ] 61,284).
\51\ 18 CFR 380.4(a)(15).
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VII. Regulatory Flexibility Act Analysis
52. The Regulatory Flexibility Act of 1980 (RFA) \52\ generally
requires a description and analysis of proposed and final rules that
will have significant economic impact on a substantial number of small
entities. The Small Business Administration (SBA) sets the threshold
for what constitutes a small business. Under SBA's size standards,\53\
RTOs/ISOs fall under the category of Electric Bulk Power Transmission
and Control (North American Industry Classification System (NAICS) code
221121), with a size threshold of 500 employees (including the entity
and its associates).\54\
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\52\ 5 U.S.C. 601-612.
\53\ 13 CFR 121.201.
\54\ The RFA definition of ``small entity'' refers to the
definition provided in the Small Business Act, which defines a
``small business concern'' as a business that is independently owned
and operated and that is not dominant in its field of operation. The
Small Business Administrations' regulations at 13 CFR 121.201 define
the threshold for a small Electric Bulk Power Transmission and
Control entity (NAICS code 221121) to be 500 employees. See 5 U.S.C.
601(3) (citing section 3 of the Small Business Act, 15 U.S.C. 632).
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53. The six RTOs/ISOs (SPP, MISO, PJM, ISO-NE, NYISO, and CAISO)
each employ more than 500 employees and are not considered small.
54. According to SBA guidance, the determination of significance of
impact ``should be seen as relative to the size of the business, the
size of the competitor's business, and the impact the regulation has on
larger competitors.'' \55\ We do not consider the estimated costs of
the proposals in this NOPR to be a significant economic impact. As a
result, we certify that the proposals in this NOPR will not have a
significant economic impact on a substantial number of small entities.
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\55\ U.S. Small Business Administration, ``A Guide for
Government Agencies How to Comply with the Regulatory Flexibility
Act,'' at 18 (May 2012), https://www.sba.gov/sites/default/files/advocacy/rfaguide_0512_0.pdf.
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VIII. Comment Procedures
55. The Commission invites interested persons to submit comments on
the matters and issues addressed and the regulation proposed in this
notice to be adopted, including any related matters or alternative
proposals that commenters may wish to discuss. Comments are due October
7, 2022; reply comments are due November 7, 2022. Comments must refer
to Docket No. RM22-13-000, and must include the commenter's name, the
organization they represent, if applicable, and their address in their
comments. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
56. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at https://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software must be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
57. Commenters that are not able to file comments electronically
may file an original of their comment by USPS mail or by courier-or
other delivery services. For submission sent via USPS only, filings
should be mailed to: Federal Energy Regulatory Commission, Office of
the Secretary, 888 First Street NE, Washington, DC 20426. Submission of
filings other than by USPS should be delivered to: Federal Energy
Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.
IX. Document Availability
58. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (https://www.ferc.gov). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
59. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary,
[[Page 48125]]
type the docket number excluding the last three digits of this document
in the docket number field.
60. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
List of Subjects in 18 CFR Part 35
Electric power rates, Electric utilities, Reporting and
recordkeeping requirements.
By direction of the Commission.
Issued: July 28, 2022.
Debbie-Anne A. Reese,
Deputy Secretary.
In consideration of the foregoing, the Commission proposes to amend
part 35, subpart J, title 18, Code of Federal Regulations, as follows:
PART 35--FILING OF RATE SCHEDULES AND TARIFFS
0
1. The authority citation for part 35 continues to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.
0
2. Amend Sec. 35.47 by adding paragraph (h) to read as follows:
Sec. 35.47 Tariff provisions regarding credit practices in organized
wholesale electric markets.
* * * * *
(h) Permit the sharing of market participant credit-related
information with, and receipt of market participant credit-related
information from, other organized wholesale electric markets for the
purpose of credit risk management and mitigation, provided such market
participant credit-related information is treated upon receipt as
confidential under the terms for the confidential treatment of market
participant information set forth in the tariff or other governing
document of the receiving organized wholesale electric market; and
permit the receiving organized wholesale electric market to use market
participant credit-related information received from another organized
wholesale electric market to the same extent and for the same purposes
that the receiving organized wholesale electric market may use credit-
related information collected from its own market participants.
[FR Doc. 2022-16609 Filed 8-5-22; 8:45 am]
BILLING CODE 6717-01-P
