Tariff Provisions, 40696-40707 [2023-13287]

Download as PDF 40696 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations Lists of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Amendment In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: ■ Authority: 49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p.389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022, is amended as follows: ■ Paragraph 5000 Class D Airspace. * * * ASO FL D * ORDER NO. 895 * (Issued June 15, 2023) * * * * ASO FL E5 Daytona Beach, FL Daytona Beach International Airport, FL (Lat 29°10′48″ N, long 81°03′29″ W) Spruce Creek Airport (Lat 29°04′49″ N, long 81°02′48″ W) Ormond Beach Municipal Airport (Lat 29°18′04″ N, long 81°06′50″ W) That airspace extends upward from 700 feet or more above the earth’s surface within a 10-mile radius of Daytona Beach International Airport, a 6.8-mile radius of Spruce Creek Airport, and a 7.3-mile radius of Ormond Beach Municipal Airport. * * * * * Issued in College Park, GA, on June 12, 2023. Andreese C. Davis, Manager, Airspace & Procedures Team South, Eastern Service Center, Air Traffic Organization. [FR Doc. 2023–13150 Filed 6–21–23; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF ENERGY * Federal Energy Regulatory Commission Ormond Beach, FL Ormond Beach Municipal Airport, FL (Lat 29°18′04″ N, long 81°06′50″ W) That airspace extending upward from the surface, to but not including 1,200 feet MSL within a 3.2- mile radius of Ormond Beach Municipal Airport, excluding that airspace within the Daytona Beach, FL, Class C airspace area. This Class D airspace area is effective during the specific days and times established in advance by a Notice to Air Missions. The effective days and times will be continuously published in the Chart Supplement. [Docket No. RM22–13–000; Order No. 895] Tariff Provisions Federal Energy Regulatory Commission. ACTION: Final rule. AGENCY: Ormond Beach Municipal Airport, FL (Lat 29°18′04″ N, long. 81°06′50″ W) Ormond Beach VORTAC (Lat 29°18′12″ N, long 81°06′46″ W) That airspace extending upward from the surface within 2.4 miles on each side of the Ormond Beach VORTAC 342° radial, extending from the 3.2-mile radius to 6.9 miles northwest of the VORTAC. This Class E4 airspace area is effective during the specific days and times established in advance by a Notice to Air Missions. The effective days and times will thereafter be continuously published in the Chart Supplement. * SUPPLEMENTARY INFORMATION: * * * * Paragraph 6004 Class E Airspace Designated as an Extension to Class D Surface Area. * * * ASO FL E4 * * * Ormond Beach, FL * VerDate Sep<11>2014 * * 16:54 Jun 21, 2023 Jkt 259001 SUMMARY: PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 FINAL RULE I. Introduction 1. Pursuant to section 206 of the Federal Power Act (FPA),1 the Commission is revising § 35.47 of Title 18 of the Code of Federal Regulations to require that regional transmission organizations (RTO) and independent system operators (ISO) have tariff provisions that permit them to share among themselves credit-related information regarding market participants in organized wholesale electric markets.2 2. The ability of RTOs/ISOs to share credit-related information among themselves will 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 should 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. II. Background 18 CFR Part 35 Pursuant to section 206 of the Federal Power Act, the Federal Energy Regulatory Commission amends its regulations to require that regional transmission organizations and independent system operators have tariff provisions that permit creditrelated information sharing in organized wholesale electric markets to ensure that credit practices in those markets result in jurisdictional rates that are just and reasonable. DATES: This rule is effective August 21, 2023. 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. * ddrumheller on DSK120RN23PROD with RULES1 Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. 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 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’’ RTOs/ISOs that are ‘‘responsible for administering electric energy and financial transmission rights markets.’’), order on reh’g, Order No. 741–A, 76 FR 10492 (Feb. 25, 2011), 134 FERC ¶ 61,126, reh’g denied, Order No. 741–B, 135 FERC ¶ 61,242 (2011). 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). 2 See E:\FR\FM\22JNR1.SGM 22JNR1 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations 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 The Commission explained that risk management and creditworthiness practices are important to the organized wholesale electric markets because of this mutualized default risk.6 ddrumheller on DSK120RN23PROD with RULES1 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 from RTO/ISO credit departments.10 6. Generally, market participants and prospective market participants do not 4 Credit Reforms in Organized Wholesale Elec. 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. 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 OATT, Sixth Revised Volume No. 1, attach. AE (MPL), section 3.7 (0.0.0) (requiring SPP to validate that prospective market participants meet SPP’s credit requirements). 9 See, e.g., NYISO, NYISO Tariffs, NYISO MST, 26.1 MST attach. K (Minimum Participation Criteria) (4.0.0), section 26.1.2 (requiring customers to demonstrate ongoing compliance with minimum participation requirements in section 26.1.1). 10 See, e.g., PJM, Intra-PJM Tariffs, OATT, attach. Q (45.0.0), section II.E (requiring market participants to provide information on an ongoing basis). VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 make the credit-related information provided to RTOs/ISOs publicly available. For their part, 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, limiting the ability of RTOs/ ISOs to share this information with other parties, including other RTOs/ ISOs.11 7. 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, when defaults do occur, minimize the costs resulting from such defaults. C. Technical Conference 8. In February 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.13 9. As relevant here, panelists at the technical conference stated that there could be risk management benefits from sharing market participants’ creditrelated information among RTO/ISO credit departments.14 Additionally, the 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 (7.0.0), section 15.2.2; SPP, OATT, Sixth Revised Volume No. 1, attach. L, section V (1.0.0). 13 See Supplemental Notice of Technical Conference, RTO/ISO Credit Principles and Practices, Docket No. AD21–6–000, et al. (Feb. 10, 2021). 14 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 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 40697 ISO/RTO Council (IRC) 15 stated in its post-technical conference comments 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.16 The IRC explained that the primary obstacles to RTOs/ISOs sharing creditrelated 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.17 The IRC therefore recommended, among other things, that the Commission require RTOs/ISOs to adopt tariff revisions permitting RTOs/ ISOs to share credit-related information with other RTOs/ISOs and proposed certain tariff language.18 D. Notice of Proposed Rulemaking 10. On July 28, 2022, the Commission issued a notice of proposed rulemaking pursuant to the Commission’s authority under FPA section 206.19 The Commission preliminarily found that it is unjust and unreasonable for RTOs/ ISOs to be unable to share with each other credit-related information about their market participants, and that tariff provisions that prohibit or otherwise limit an RTO/ISO from sharing creditrelated information are unjust and unreasonable. The Commission (Seghesio). For example, one panelist explained that it would be helpful for an RTO/ISO credit department to know that a market participant is experiencing financial distress in another organized wholesale 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. Id. at Tr. 104:21–105:6 (Prevratil). 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). 15 The 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 for purposes of this final rule, including Electric Reliability Council of Texas, Inc. (ERCOT), the Alberta Electric System Operator (AESO), and the Independent Electricity System Operator (IESO). 16 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). 17 Id. at 5. 18 Id. at 6–8. 19 Credit-Related Info. Sharing in Organized Wholesale Elec. Mkts., Notice of Proposed Rulemaking, 87 FR 48118 (Aug. 8, 2022), 180 FERC ¶ 61,048 (2022) (NOPR). E:\FR\FM\22JNR1.SGM 22JNR1 40698 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations reasoned that such tariff provisions 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. The Commission further reasoned that, because the costs of such defaults typically are borne by non-defaulting market participants, an RTO’s/ISO’s lack of access to creditrelated information may lead to unjust and unreasonable rates for its market participants.20 11. To address RTOs’/ISOs’ access to credit-related information, the Commission proposed in the NOPR to amend its 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. The Commission also proposed in the NOPR 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 from its own market participants.21 12. Initial comments were due on or before October 7, 2022; reply comments were due on or before November 7, 2022.22 13. In general, commenters support the NOPR proposal to permit RTOs/ ISOs to share credit-related information among themselves. For example, IRC states that, because market participants operate in multiple organized wholesale electric markets, the NOPR proposal would enhance RTOs’/ISOs’ ability to accurately assess market participants’ credit exposure. IRC also argues that the NOPR proposal would assist RTOs/ISOs in their efforts to respond more quickly to credit events and thereby minimize overall credit-related risks of unexpected defaults by market participants in organized wholesale electric markets.23 EEI states that the NOPR proposal would enhance RTOs’/ 20 Id. P 14. P 21. 22 The following parties submitted initial comments: Dominion Energy Services, Inc., on behalf of Virginia Electric and Power Company and Dominion Energy South Carolina, Inc. (Dominion); Edison Electric Institute (EEI); Electric Power Supply Association (EPSA); the Energy Trading Institute (ETI); FirstEnergy Utility Companies and East Kentucky Power Cooperative, Inc. (Indicated PJM Utilities); IRC; Market Monitoring Unit of the Southwest Power Pool, Inc. (SPP MMU); and New England Power Pool Participants Committee (NEPOOL). The following parties submitted reply comments: IRC and Kiera Howard. 23 IRC Initial Comments at 2. ddrumheller on DSK120RN23PROD with RULES1 21 Id. VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 ISOs’ ability to evaluate market participants’ creditworthiness and respond to credit events, which will prevent or mitigate defaults and limit unnecessary costs incurred by nondefaulting market participants.24 14. Indicated PJM Utilities and ETI each offers qualified support for the NOPR proposal. Indicated PJM Utilities generally agrees with the NOPR proposal to allow RTOs/ISOs to share credit-related information among themselves and commends the Commission for proposing solutions consistent with stakeholder feedback at the technical conference.25 ETI states that, with certain guiding principles in place, credit-related information sharing among RTOs/ISOs will enhance credit risk assessment efforts.26 EPSA argues that credit-related information sharing should not be conducted on a routine basis, though it concedes that there may be some instances in which it would be appropriate.27 III. Need for Reform 15. We find that it is unjust and unreasonable for RTOs/ISOs to be unable to share with each other creditrelated information about their market participants, and that tariff provisions that prohibit or otherwise limit an RTO/ ISO from sharing credit-related information are unjust and unreasonable. Such tariff provisions can hinder an RTO’s/ISO’s ability to evaluate a market participant’s creditworthiness and to respond to credit events, and thus, in turn, can hinder its ability to prevent or mitigate default by market participants.28 Because the costs of such defaults typically are 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. Therefore, we find that removing such tariff provisions will help minimize the costs of mutualized defaults and ensure just and reasonable rates. 16. RTOs/ISOs are responsible for credit risk management as the entities responsible for administering organized wholesale electric markets, and perform this responsibility by instituting, maintaining, and enforcing policies that balance the need for robust market participation and liquidity while seeking to minimize mutual default 24 EEI Comments at 3. PJM Utilities Comments at 2. 26 ETI Comments at 2. 27 EPSA Comments at 5. 28 NOPR, 180 FERC ¶ 61,048 P 14. 25 Indicated PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 risk.29 In order to manage credit risk in the organized wholesale electric markets, RTOs/ISOs must have adequate information about their market participants’ financial standing and their business and operational activities in other organized wholesale electric markets. Having this information will allow each RTO/ISO to assess those market participants’ default risk more effectively. Generally speaking, however, each RTO/ISO currently has access only to publicly available information and to the credit-related information provided by its own market participants. Therefore, we conclude that RTOs/ISOs may have limited visibility, if any, into their market participants’ activities in other organized wholesale electric markets. 17. Additionally, 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.30 These developments have complicated the ability of any individual RTO/ISO credit department to develop a complete, accurate, and upto-date picture of a market participant’s overall financial condition due to real or perceived barriers to information sharing among RTOs/ISOs. Negative credit events affecting a market participant’s credit standing in one organized wholesale electric market may impact its credit standing in other markets. Therefore, 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 effectively protect its organized wholesale electric market from mutualized default risk. 18. 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.31 The Commission finds that such tariff provisions effectively allow a market participant to limit the amount and quality of information that 29 Id. P 15. 30 RTO/ISO Credit Principles and Practices, Technical Conference, Docket No. AD21–6–000, et al., Tr. 30:12–14 (Heinle) (Feb. 25, 2021). 31 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’s 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). E:\FR\FM\22JNR1.SGM 22JNR1 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations an RTO/ISO may access and use to assess that market participant’s financial standing, and that these provisions therefore pose an unjust and unreasonable barrier to credit risk management and mitigation by the RTOs/ISOs.32 IV. Discussion 19. Therefore, to address limitations to RTOs’/ISO’ access to potentially relevant credit-related information, we amend Commission regulations to require that each RTO/ISO have tariff provisions that permit RTOs/ISOs to share market participants’ credit-related information with other RTOs/ISOs for the purpose of credit risk management and mitigation. 20. Specifically, we adopt the proposed regulations to: (1) permit RTOs/ISOs to share with each other credit-related information; (2) permit RTOs/ISOs to use market participant credit-related information received from other RTOs/ISOs to the same extent and for the same purpose as information received from its own market participants; and (3) require that an RTO/ISO that receives credit-related information from another RTO/ISO keep that information confidential as it would any other credit-related information received directly from one of its own market participants. 21. The regulations we adopt will allow the RTOs/ISOs to share creditrelated information among themselves as necessary, helping them to better monitor the ongoing risks in their markets that may change quickly, but without creating uncertainty among the RTOs/ISOs about what information is permissible to share. In addition, creditrelated information sharing will help RTOs/ISOs to carry out their credit risk management responsibilities, which, in turn, will benefit all market participants and their customers that ultimately bear the cost of mutualized default risk. 22. We respond to objections to or requests for clarification on the NOPR proposal to allow credit-related information sharing in organized wholesale electric markets below. ddrumheller on DSK120RN23PROD with RULES1 A. Shareable Credit-Related Information 1. NOPR 23. The Commission explained that its proposal would allow RTOs/ISOs to share credit-related information, including: (1) lists of market 32 See, e.g., RTO/ISO Credit Principles and Practices, Technical Conference, Docket No. AD21– 6–000, et al., Tr. 116:6–10 (Brown) (Feb. 25, 2021) (suggesting that MISO’s OATT prohibits disclosure of a MISO market participant’s financial distress even if that market participant is on the verge of default). VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 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.33 The Commission sought comment on whether it should impose restrictions on the types of credit-related information that RTOs/ISOs may share with one another.34 2. Comments 24. EEI and Indicated PJM Utilities request that the Commission define ‘‘credit-related information’’ more precisely than in the NOPR proposal. EEI states that RTOs/ISOs otherwise may interpret ‘‘credit-related information’’ differently,35 while Indicated PJM Utilities requests that the Commission establish a ‘‘standardized list of documentation’’ that RTOs/ISOs could collect from market participants.36 By contrast, IRC requests that the Commission decline to define credit-related information,37 while SPP MMU argues that it would be nearly impossible to create a distinct set of allencompassing, currently applicable circumstances in which credit-related information sharing would be appropriate.38 25. EPSA states that phases such as ‘‘unresolved credit/collateral issues’’ and ‘‘an increased risk of default, such as a material adverse change or change in creditworthiness’’ are too vague, and that the former may encompass billing disputes between the market participant and RTO/ISO and not necessarily an increased credit risk.39 Dominion likewise states that the Commission should not allow RTOs/ISOs to share 33 NOPR, 180 FERC ¶ 61,048 P 22. PP 22, 30. 35 EEI Comments at 3. 36 Indicated PJM Utilities Comments at 13–14. 37 IRC Reply Comments at 3. 38 SPP MMU Comments at 4. 39 EPSA Comments at 6–7. 34 Id. PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 40699 such information unless it represents a material adverse change that is confirmed and no longer subject to dispute.40 26. Dominion expresses concern that RTOs/ISOs might abuse their discretion and share credit-related information that might wrongfully prevent a market participant from participating in the market, particularly with respect to the Commission’s proposal to allow RTOs/ ISOs to share with other RTOs/ISOs ‘‘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.’’ 41 Dominion argues that RTOs/ISOs should only be able to share ‘‘bankruptcy filings, confirmed undisputed material financial defaults in their wholesale energy markets or bilateral arrangements, disciplinary actions taken for market activity not in keeping with [Commission] regulations or the RTO/ISO/market operator’s rules, findings of material defalcation, market manipulation or fraud, and findings of violations of federal and state regulations regarding energy commodities, [or Commodity Futures Trading Commission] or [Commission] regulations.’’ 42 27. Indicated PJM Utilities requests that the Commission adopt an ‘‘active participation’’ requirement, according to which an RTO/ISO should not receive credit-related information unless it demonstrates that the relevant entity is a market participant, or a prospective or former market participant. Indicated PJM Utilities reasons that to preserve confidentiality to the greatest extent possible, RTOs/ISOs should only share credit-related information when it is relevant to evaluating a credit-related risk, and that other RTOs/ISOs have no need of the information if the entity is not a former, current, or prospective market participant.43 28. Dominion and Indicated PJM Utilities each also requests clarification as to what credit-related information RTOs/ISOs should be allowed to share among themselves. Dominion states that, with respect to the Commission’s proposal to allow RTOs/ISOs to disclose to other RTOs/ISOs 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, it is not clear whether an RTO/ISO may only share credit-related 40 Dominion Comments at 4. at 5. 42 Id. at 6. 43 Indicated PJM Utilities Comments at 2–5. 41 Id. E:\FR\FM\22JNR1.SGM 22JNR1 40700 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES1 information related to obligations owed to the RTO/ISO or whether an RTO/ISO might also share credit-related information related to obligations owed by the market participant to unrelated third parties.44 Indicated PJM Utilities argues that RTOs/ISOs should only share credit-related information received directly from a market participant, and should not share information received from another RTO/ ISO.45 29. Finally, EPSA expresses concern that the NOPR’s definition of creditrelated information encompasses information about a market participant’s affiliates, and states that this could be inappropriate because some such affiliates are fully distinct, standalone companies with separate debt and equity structures.46 3. Commission Determination 30. We set forth a list of examples of the types of credit-related information that an RTO/ISO may share, as proposed in the NOPR, but this list is illustrative and we decline to adopt a restrictive or exclusive list. We find that RTOs/ISOs should be allowed to share creditrelated information, including: (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. 31. This list is illustrative and not exhaustive. We believe that the list provides sufficient examples of the types of credit-related information that may help RTOs/ISOs carry out their credit risk management responsibilities. 32. We recognize that EPSA believes that the list above is vague and that several commenters (including Dominion and Indicated PJM Utilities) 44 Dominion Comments at 4–5. PJM Utilities Comments at 13–14. 46 EPSA Comments at 6. 45 Indicated VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 request limitations on or clarifications to the kinds of credit-related information that RTOs/ISOs may share among themselves. Because we cannot reasonably foresee every circumstance in which RTOs/ISOs may seek to share credit-related information, nor determine every type of credit-related information that may be useful to share, we decline to adopt an exclusive list restricting the type of credit-related information that may be shared. We find it reasonable to allow RTOs/ISOs, as independent entities, to exercise their discretion in determining the kinds of credit-related information to share with each other. This approach is consistent with the Commission’s approach in creditworthiness matters. In Order No. 741, the Commission declined to adopt a list of events that qualified as a ‘‘material adverse change,’’ because it would limit the market administrator, i.e., the RTO/ISO. The Commission reasoned: ‘‘Experience has demonstrated that unforeseen circumstances can arise, which will require action to protect the markets from ongoing disruption.’’ 47 33. We decline to define credit-related information more specifically as requested by EEI and Indicated PJM Utilities.48 We find that a specific, restrictive definition would unnecessarily narrow the information that RTOs/ISOs could share and would unnecessarily limit RTOs’/ISOs’ discretion in an area that is well within their responsibility and expertise. 34. We decline to preclude RTOs/ ISOs from sharing credit-related information that is subject to dispute, as requested by EPSA and Dominion. We find that imposing such a limitation could prevent RTOs/ISOs from timely sharing credit-related information and lessen the RTOs’/ISOs’ ability to prevent or mitigate defaults. Allowing only undisputed information to be shared may also incent market participants to pursue disputes as a means of precluding other RTOs/ISOs from receiving information about their creditrelated activities in another RTO/ISO. We expect that RTOs/ISOs sharing credit-related information will provide relevant details necessary for the receiving RTO/ISO to assess potential credit risk effects, including, as appropriate, that the information is subject to dispute. We clarify that RTOs/ ISOs receiving credit-related information are permitted to seek clarifying information from the sending RTO/ISO, if necessary. Further, we 47 Order No. 741, 133 FERC ¶ 61,060 at P 150. Comments at 3; Indicated PJM Utilities Comments at 13–14. 48 EEI PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 believe that as independent entities, the RTO/ISO credit departments are capable of impartially assessing credit-related information they receive and responding effectively, as appropriate. 35. We decline to require that creditrelated information-sharing be subject to an active participation requirement as requested by Indicated PJM Utilities. Indicated PJM Utilities have not shown what interest or incentive an RTO/ISO would have to use credit-related information received from another RTO/ ISO related to an entity that is not among the RTO/ISO’s former, current, or prospective market participants. Further, as to concerns about the confidentiality of information that an RTO/ISO might obtain regarding an entity that is not among its market participants, we note that RTOs/ISOs handle substantial amounts of their market participants’ commercially sensitive information and have established practices for protecting its confidentiality. As such, while this final rule will allow RTOs/ISOs to share credit-related information among themselves, we are not persuaded that the sharing of such information among other RTOs/ISOs materially increases the risk of its disclosure beyond the RTOs/ISOs. 36. Further, we see practical issues with limiting the scope of market participant credit-related information as requested by Indicated PJM Utilities. For example, it may be valuable in some instances for RTOs/ISOs to share with one another certain kinds of creditrelated information on a routine basis, such as lists of market participants with positions in that market (category (1) above). For such documents that include information about a large number of market participants, it may not be feasible to verify each market participant’s ‘‘active’’ status in the markets operated by the recipient RTO/ ISO, or produce multiple customized reports for each RTO/ISO including only the recipient RTO’s/ISOs’ former, current, and prospective market participants. In other situations, an RTO/ISO might share reports including credit-related information related to multiple market participants (category (2) above), raising similar concerns. But as explained below, RTOs/ISOs must treat credit-related information they receive from another RTO/ISO under this final rule as they would creditrelated information they received from their own market participants. 37. With respect to our proposal to allow RTOs/ISOs to disclose that a market participant or affiliate has defaulted on any of its financial or contractual obligations, failed to pay E:\FR\FM\22JNR1.SGM 22JNR1 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES1 invoices on a timely basis, or failed to meet a collateral call (category (3) above), we decline Dominion’s request that we limit such disclosures to obligations owed to the RTO/ISO and not also to unrelated third parties. We find that information about a market participant’s credit activity outside of the RTO/ISO markets may be relevant to its creditworthiness within the RTO/ISO markets. RTOs/ISOs often collect from their market participants credit-related information about a market participant’s obligations owed to third parties. Thus, an RTO/ISO may find such information relevant as it assesses credit risks.49 For similar reasons, we also decline Indicated PJM Utilities’ request that we limit the credit-related information that an RTO/ISO may share to information collected directly from its own market participants. Further, we believe that adopting Indicated PJM Utilities’ recommendation could prove counterproductive by causing uncertainty in RTO/ISO credit departments on which types of information are permissible to share during fast-moving credit events that results in RTOs/ISOs not timely sharing credit-related information. 38. Finally, in response to EPSA’s concern with the inclusion of creditrelated information relating to a market participant’s affiliate, we clarify that the definition of affiliates in this context is to be governed by the definition of affiliate provided in the RTO’s/ISO’s OATT for purposes of determining market participants’ creditworthiness.50 If an affiliate’s financial standing changes in a way that requires a market participant to post additional collateral, for example, that information may be relevant in another RTO’s/ISO’s credit risk assessment. To the extent that the definitions of affiliate vary materially from one RTO/ISO to another, we reiterate our belief that RTO/ISO credit departments that receive credit-related information are capable of impartially assessing it and responding effectively and appropriately. 49 See, e.g., Indicated PJM Utilities Comments at 8–9 (indicating that NYISO requires market participants to submit information related to any ‘‘material defaults or bankruptcies by the [market participant] or its predecessors, subsidiaries, or affiliates within the last five years’’ or ‘‘material changes in financial status’’). 50 See, e.g., SPP, OATT, Sixth Revised Volume No. 1, attach. X, section 2.1 (defining ‘‘Affiliate’’ and ‘‘Affiliated Credit Customers’’); id. section 4.3.4.1 (requiring SPP to determine creditworthiness of Affiliated Credit Customers collectively). VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 B. Discretion for RTOs/ISOs 1. NOPR 39. The Commission proposed to allow an RTO/ISO to use credit-related information received from another RTO/ ISO to the same extent and for the same purposes as that RTO/ISO may use credit-related information collected from its own market participants.51 The Commission explained that this would allow RTOs/ISOs the discretion to determine what credit-related information it would share with other RTOs/ISOs, as well as under what circumstances and on what timeline it would do so.52 40. The Commission stated that it believed the NOPR proposal 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.53 The Commission preliminarily found that RTOs/ISOs would benefit from the ability to discuss the creditworthiness of specific market participants, and that permitting RTOs/ISOs to share creditrelated information with other RTOs/ ISOs would 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.54 The Commission also preliminarily found that creditrelated information sharing would help RTOs/ISOs prevent or mitigate losses in the event that a market participant experiences financial distress, and potentially help RTOs/ISOs prevent default in one organized wholesale electric market from triggering default in another.55 41. Finally, the Commission also stated that the NOPR would not change the existing discretion an RTO/ISO has to act on credit-related information, regardless of its source.56 2. Comments 42. IRC argues that RTOs/ISOs should be able to use credit-related information to the same extent and for the same purposes as other credit-related information. IRC contends that a final rule should allow RTO/ISO credit risk personnel to focus on activities that help achieve the objectives set forth in the NOPR, i.e., to identify and manage credit risks and protect non-defaulting market participants from the consequences of credit defaults.57 SPP MMU also argues that RTOs/ISOs should have discretion on how to use credit-related information received from another RTO/ISO.58 By contrast, Dominion opposes what it calls ‘‘unfettered discretion’’ for RTOs/ISOs, arguing that the Commission instead should afford RTOs/ISOs only ‘‘reasonable discretion.’’ 59 43. NEPOOL contends that the Commission should require each RTO/ ISO to specify in compliance filings to a potential final rule what criteria the RTO/ISO will use to determine when it will share credit-related information and what types of information it will share.60 ETI likewise states that RTOs/ ISOs should only share credit-related information when triggered by certain universally-applied metrics, e.g., percentage of exposure/collateral posted, material changes in know-yourcustomer or risk management policies.61 In reply, IRC disagrees and requests that the Commission not specify circumstances in which RTOs/ISOs may or may not share credit-related information, arguing that each RTO/ISO has the responsibility to manage credit risks and should be granted the flexibility to do so.62 44. ETI argues that RTOs/ISOs should be careful about sharing credit-related information during system stress events, because losses in one organized wholesale electric market could lead to collateral calls in other markets that might exacerbate the situation. ETI therefore states that RTOs/ISOs should not share information related to margin or collateral calls issued to market participants.63 45. EPSA argues that an RTO/ISO that receives credit-related information from another RTO/ISO may misunderstand that information and take action erroneously in response. EPSA therefore argues that market participants should have a minimum window of time during which to resolve billing disputes before an RTO/ISO may share information related to that dispute.64 46. Finally, ETI argues that a potential final rule should encourage collaboration and coordination within each RTO/ISO between its operations, 57 IRC Initial Comments at 3–5. MMU Comments at 4. 59 Dominion Comments at 5–6. 60 NEPOOL Comments at 5–6. 61 ETI Comments at 4. 62 IRC Reply Comments at 3. 63 ETI Comments at 3–5. 64 EPSA Comments at 5–7. 58 SPP 51 NOPR, 180 FERC ¶ 61,048 P 21. P 27. 53 Id. P 24. 54 Id. P 25. 55 Id. P 26. 56 Id. P 28. 52 Id. PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 40701 E:\FR\FM\22JNR1.SGM 22JNR1 40702 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations planning, and credit departments. ETI cites the example of a default that it claims was caused by construction taking place during a critical outage, and claims that the outage could have been delayed had more robust communication occurred within the RTO/ISO.65 3. Commission Determination 47. We adopt the proposal set forth in the NOPR that, in sharing credit-related information under the adopted regulations, an RTO/ISO has discretion as to what credit-related information it chooses to provide to other RTOs/ISOs, as well as under what circumstances and on what timeline it chooses to do so. Similarly, as noted above, an RTO/ ISO that receives credit-related information pursuant to the regulations adopted in this final rule may use that information as it would credit-related information from any other source. We find that, as the independent entities with the most insight into and knowledge of what credit-related information would be useful to share, RTOs/ISOs should have flexibility to best accomplish the intended purpose of the rule, which aims to remove unjust and unreasonable barriers that restrict communication of credit-related information between the RTOs/ISOs.66 We find that providing RTOs/ISOs flexibility about what credit information to share and how to use credit-related information it receives will improve the RTOs’/ISOs’ ability to mitigate credit risks without creating uncertainty for RTOs/ISOs as to the manner in which they are sharing credit-related information. 48. This approach will provide an RTO/ISO the discretion to determine what credit-related information it would share with other RTOs/ISOs, as well as under what circumstances and on what timeline it would do so. Gaining additional visibility into their market participants’ financial condition will help RTOs/ISOs 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. RTOs/ISOs will be able to discuss with each other the creditworthiness of specific market ddrumheller on DSK120RN23PROD with RULES1 65 ETI Comments at 3, 6–7. granting RTOs/ISOs this level of discretion is consistent with our precedent. 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.’’). 66 Moreover, VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 participants, and nothing in this final rule precludes these discussions as a means to better inform RTOs/ISOs in the management of credit risk on an ongoing basis. 49. We reject Dominion’s characterization of the discretion we afford the RTOs/ISOs as ‘‘unfettered.’’ As an initial matter, RTOs/ISOs may share credit-related information only for the purpose of credit risk management and mitigation. An RTO’s/ISO’s discretion is further constrained by its OATT, because RTOs/ISOs may only use the credit-related information shared under this final rule to the same extent and for the same purposes as that RTO/ISO may use credit-related information collected from its own market participants. Therefore, an RTO/ ISO sharing a market participant’s credit-related information does not necessarily entail negative consequences for a market participant, let alone automatic consequences. The RTO/ISO must follow rules and procedures set forth in its Commissionapproved OATT, and market participants are therefore provided the safeguards set forth in the OATT. If the RTO/ISO takes action that violates its OATT, the entity whose information was shared may turn to dispute resolution mechanisms available to it 67 or submit a complaint under FPA section 206. The Commission has the authority to ensure that RTOs/ISOs act in a manner consistent with their OATTs. For the same reasons, we also reject NEPOOL and ETI’s requests for written criteria and metrics, respectively, which we believe would unreasonably constrain the RTOs’/ISOs’ discretion. 50. We also reject EPSA’s argument that an RTO/ISO might misinterpret credit-related information it receives and take erroneous action as a consequence. EPSA’s concerns are at best speculative and granting their requests would unreasonably constrain RTOs’/ISOs’ discretion as information on margin or collateral calls may be useful in understanding a market participant’s market losses that require additional collateral and on which market participants could have potential liquidity problems due to margin calls. We again reiterate that RTO/ISO credit departments that receive credit-related information are capable of impartially assessing it and responding effectively and appropriately. We decline to preclude RTOs/ISOs from sharing 67 See, e.g., SPP OATT, Sixth Revised Volume No. 1, attach. X, section 1.6 (subjecting disputes regarding SPP’s Credit Policy to the dispute resolution mechanism in the SPP OATT). PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 information about margin or collateral calls during system stress events as suggested by ETI. A market participant’s failure to make a margin or collateral call is highly relevant to its creditworthiness, particularly during stress events. 51. Finally, we reject ETI’s request that the Commission encourage collaboration and coordination within each RTO/ISO because it is outside the scope of this proceeding, which is focused on credit-related information sharing among RTOs/ISOs and not on internal communications within each RTO/ISO. C. Consent of or Notice to Market Participants 1. NOPR 52. The Commission preliminarily found an RTO’s/ISO’s sharing of a market participant’s credit-related information must not be conditioned on the consent of the market participant.68 The Commission stated that existing OATT provisions implicitly impose a barrier to credit-related information sharing, as the OATT provisions treat market participants’ credit-related information as confidential information and, in most instances, prohibit an RTO/ISO from sharing credit-related information with other RTOs/ISOs without the consent of the market participant. The Commission further observed that these provisions effectively 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.69 53. The Commission also proposed that an RTO/ISO would not be required to notify its own market participants before sharing their credit-related information because an RTO’s/ISO’s OATT, 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.70 The Commission stated 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. 2. Comments 54. IRC and Indicated PJM Utilities express support for the NOPR proposal not to condition an RTO’s/ISO’s ability 68 NOPR, 180 FERC ¶ 61,048 P 23. P 19. 70 Id. P 23. 69 Id. E:\FR\FM\22JNR1.SGM 22JNR1 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations to share credit-related information on the RTO’s/ISO’s obtaining prior consent from or providing notice to market participants.71 55. While no party requests that the Commission require RTOs/ISOs to obtain market participants’ prior consent, EPSA and NEPOOL each argue that the Commission should require an RTO/ISO to provide notice when the RTO/ISO shares the market participants’ credit-related information. According to EPSA, RTOs/ISOs should notify market participants immediately upon sharing their credit-related information.72 NEPOOL contends that timely notice would suffice, e.g., within 30 days of sharing, and argues that this would not burden RTOs/ISOs because they could use electronic means to provide such notice.73 56. Finally, Indicated PJM Utilities argues that the Commission should require RTOs/ISOs to establish recordkeeping requirements in accordance with which the RTO/ISO that shares credit-related information with another RTO/ISO would be required to document: (1) what creditrelated information it shared; (2) the date on which it was shared; and (3) the recipient RTO/ISO. Indicated PJM Utilities contends that the inclusion of such requirements would create an auditable record that would provide additional security to market participants.74 ddrumheller on DSK120RN23PROD with RULES1 3. Commission Determination 57. We adopt the findings, set forth in the NOPR, that an RTO/ISO must be allowed to share credit-related information without either obtaining the prior consent of market participants or providing specific notice to market participants. 58. We do not require consent for the sharing of credit-related information because a consent requirement would hinder information sharing. A market participant would have little incentive to provide consent and indeed could effectively limit RTOs’/ISOs’ access to credit-related information by withholding its consent—a particular concern if a market participant faces a pending credit event. Further, obtaining consent would impose an administrative burden on the RTO/ISO. 59. We find that the revised OATTs— as well as this final rule—put market participants on notice that their creditrelated information may be shared with 71 IRC Initial Comments at 3, 4 n.9; Indicated PJM Utilities Comments at 2. 72 EPSA Comments at 5. 73 NEPOOL Comments at 7–8. 74 Indicated PJM Utilities Comments at 14–15. VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 another RTO/ISO for the purpose of credit risk management and mitigation. We reject EPSA and NEPOOL’s requests that we require RTOs/ISOs to provide notice to market participants that is concurrent with the credit-related information sharing or within 30 days thereof, respectively. Market participants experiencing credit events should expect that credit-related information will be shared among the RTOs/ISOs that they participate in. Requiring that RTOs/ISOs provide specific notice to market participants each time credit-related information is shared will provide little benefit to market participants while unnecessarily burdening RTO/ISO credit departments that are responsible for minimizing credit default risk and mitigating the effects of credit defaults that do occur. 60. We further consider the practical burden of a notice requirement in the event RTOs/ISOs share certain kinds of credit-related information. For example, credit-related information in categories (1) and (2) above may contain the creditrelated information of multiple market participants.75 We disagree with NEPOOL that providing notice will not impose a burden on RTOs/ISOs and find that such a requirement might create a barrier that dissuades RTOs/ISOs from sharing this type of credit-related information. 61. We decline to impose a recordkeeping requirement on RTOs/ISOs for any credit-related information sharing, as requested by Indicated PJM Utilities. As further explained below, an RTO/ ISO that receives credit-related information from another RTO/ISO is required to treat that information confidential as it would any other credit-related information. Under the final rule, shared credit-related information will be safeguarded by the receiving RTO/ISO in accordance with its OATT. We are not convinced that additional record keeping requirements are necessary to protect the credit information of market participants. D. Confidentiality 1. NOPR 62. The Commission proposed to require that an RTO/ISO that receives credit-related information from another RTO/ISO keep that information confidential as it would any other credit-related information received directly from one of its own market participants.76 The Commission preliminarily found that this would ensure that all credit-related 75 See supra P 30 (setting forth categories of credit-related information). 76 NOPR, 180 FERC ¶ 61,048 P 29. PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 40703 information would continue to be safeguarded by RTOs/ISOs in accordance with the receiving RTO’s/ ISO’s OATT.77 The Commission sought comment on any additional restrictions that it should impose on RTOs/ISOs in their management and use of creditrelated information.78 2. Comments 63. IRC and Dominion each supports the NOPR proposal to require that RTOs/ISOs that receive credit-related information protect its confidentiality under existing OATT confidentiality protections in the same manner as they would any other information received directly from their own market participants.79 64. Several parties argue that existing OATT confidentiality provisions are not sufficiently uniform to provide consistent protection to market participants’ credit-related information. Indicated PJM Utilities and EEI each argue that the Commission therefore should adopt a uniform confidentiality provision applicable to market participants’ credit-related information across the organized wholesale electric markets.80 NEPOOL requests that the Commission clarify that a market participant may enforce its confidentiality rights as against the RTO/ISO that receives its credit-related information even where that market participant is not a signatory to the receiving RTO’s/ISO’s OATT.81 65. Indicated PJM Utilities provides sample confidentiality provisions and argues that differences among these provisions and among the kinds of credit-related information collected by different RTOs/ISOs increase the risk of unintended disclosure, particularly given the involvement in credit reviews by third party contractors retained by CAISO, PJM, and SPP.82 Indicated PJM Utilities further argues that there is a risk of disclosure of confidential information to a market participant’s competitor in ISO–NE, where the RTO/ ISO may in some circumstances provide credit-related information to ISO–NE’s Participants Committee, which is comprised of other market participants.83 66. Finally, EPSA requests that the Commission confirm that credit-related information shared by an RTO/ISO with another RTO/ISO will not be subject to 77 Id. P 29. P 30. 79 IRC Initial Comments at 3. 80 Indicated PJM Utilities Comments at 13; EEI Comments at 4. 81 NEPOOL Comments at 7–8. 82 Indicated PJM Utilities Comments at 5–13. 83 Id. at 13. 78 Id. E:\FR\FM\22JNR1.SGM 22JNR1 40704 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations disclosure under the Freedom of Information Act (FOIA).84 3. Commission Determination 67. We adopt the regulations proposed in the NOPR to require that an RTO/ISO that receives credit-related information from another RTO/ISO treat that information as it would any other credit-related information received directly from one of its own market participants. We find that this requirement will ensure that all creditrelated information shared under this final rule will be safeguarded by the receiving RTO/ISO in accordance with its OATT. 68. We acknowledge that allowing RTOs/ISOs to share market participants’ credit-related information among themselves may pose some incremental risk that such information will be disclosed outside of the RTOs/ISOs. We note, however, that the RTOs/ISOs already are stewards of large amounts of credit-related information, and they protect that information in accordance with confidentiality policies included in their OATTs.85 Further, we find that this incremental risk of disclosure is outweighed by the transparency and credit risk management benefits that credit-related information sharing will provide. 69. The Commission confronted a similar issue in Order No. 787, in which it permitted the disclosure of non-public information between electric transmission operators and interstate natural gas pipelines. There, the Commission acknowledged that the disclosure of non-public information poses some incremental risk but noted that these risks are outweighed by the benefits of additional transparency and information exchange: While any exchange of non-public information may pose some disclosure risks, we find that, on balance, the regulations adopted here . . . appropriately balance the significant benefits to be gained by robust information exchange among interdependent transmission operators against the potential risks from disclosure of non-public information.86 Similarly, this final rule facilitates the RTOs’/ISOs’ ability to accurately assess market participants’ credit exposure and 84 EPSA Comments at 7. 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’’). 86 Commc’n of Operational Info. Between Nat. Gas Pipelines & Elec. Transmission Operators, Order No. 787, 78 FR 70164 (Nov. 22, 2013) 145 FERC ¶ 61,134, at P 32 (2013), on reh’g, Order No. 787–A, 147 FERC ¶ 61,228 (2014). ddrumheller on DSK120RN23PROD with RULES1 85 See, VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 strengthen the tools available to RTOs/ ISOs in fulfilling their obligations to minimize credit default risk and mitigate the effects of credit defaults that do occur. 70. We acknowledge that there are differences between the kinds of creditrelated information that RTOs/ISOs collect, as EEI and Indicated PJM Utilities each argues, as well as differences between the kinds of confidentiality protections afforded market participants under the different RTO/ISO OATTs. We acknowledge that under this final rule credit-related information in some circumstances will be protected from disclosure by the receiving RTO’s/ISO’s confidentiality protections rather than the sending RTO/ISO’s confidentiality protections. We find that any such incremental risk is minimal and is outweighed by the benefit of credit-related information sharing permitted in this final rule. Therefore, we decline to require RTOs/ ISOs to adopt uniform confidentiality provisions governing the sharing of market participants’ credit-related information.87 In addition, the Commission has already concluded that any such confidentiality provision in an RTO/ISO OATT is just and reasonable. 71. In response to NEPOOL’s request for clarification, we find that an RTO/ ISO must protect credit-related information received from another RTO/ ISO under this final rule in accordance with confidentiality protections in the receiving RTO’s/ISO’s OATT. In accordance with this requirement, the entity whose information was shared may turn to dispute resolution mechanisms available under the receiving RTO’s/ISO’s OATT or submit a complaint under FPA section 206 notwithstanding the fact that such entity may not be a market participant under the receiving RTO’s/ISO’s OATT. 72. Finally, EPSA’s request that we clarify that credit-related information that is shared among RTOs/ISOs would not be subject to requests under FOIA sent to the receiving RTO/ISO is misplaced. FOIA governs information held by federal agencies, and the Commission will not have custody or control of credit-related information that is shared. Credit-related information in the custody or control of RTOs/ISOs would not be subject to FOIA. We expect each RTO/ISO to respond to other types of information requests in accordance with its OATT, and that shared credit-related information will be 87 Further, we note that RTOs/ISOs cannot evade their responsibility to safeguard credit-related information by hiring third party contractors to help conduct credit reviews. PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 treated just as would any other creditrelated information held by the RTO/ ISO. We decline to create a different standard for handling credit-related information received from another RTO/ ISO differently than how the receiving RTO/ISO would treat credit-related information received from its own market participants. E. Prescriptive Approach 1. NOPR 73. The Commission acknowledged that there could be benefits to adopting requirements that RTOs/ISOs share credit-related information with other RTOs/ISOs, such as establishing a baseline sharing of credit-related information prior to a credit event that could reduce the financial losses to nondefaulting market participants during that event.88 The Commission also acknowledged that a prescriptive approach could impose burdens on RTOs/ISOs, such as raising costs or straining RTO/ISO resources.89 The Commission therefore sought comment on whether it should modify the NOPR proposal to require that RTOs/ISOs share credit-related information on a routine basis, in certain circumstances, or upon request by another RTO/ISO.90 2. Comments 74. SPP MMU argues that the Commission should require an RTO/ISO to provide credit-related information to another RTO/ISO upon the reasonable request of the receiving RTO/ISO.91 Dominion contends instead that the Commission should require RTOs/ISOs to share certain credit-related information on a routine basis, or should condition an RTO’s/ISO’s ability to receive credit-related information on its willingness to share such information with other RTOs/ISOs.92 75. IRC disagrees, arguing that RTOs/ ISOs should be permitted rather than required to share credit-related information. IRC contends that defining the circumstances in which an RTO/ISO would be required to share creditrelated information would burden RTO/ ISO credit departments.93 IRC further argues that a prescriptive approach would introduce the specter of potential rule violations, which would distract RTO/ISO credit departments from their efforts to identify and manage credit risks and to protect non-defaulting 88 NOPR, 180 FERC ¶ 61,048 P 33. 89 Id. 90 Id. 91 SPP MMU Comments at 4. Comments at 6–7. 93 IRC Initial Comments at 4–5. 92 Dominion E:\FR\FM\22JNR1.SGM 22JNR1 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations market participants from the consequences of credit defaults.94 3. Commission Determination 76. We decline to adopt a prescriptive approach that would dictate circumstances in which RTOs/ISOs must share credit-related information with other RTOs/ISOs. As noted above, discretion regarding credit-related information sharing ensures that RTOs/ ISOs gain additional visibility into their market participants’ financial condition and are able 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. 77. By contrast, we find that a prescriptive approach to sharing creditrelated information would unnecessarily constrain the RTOs’/ISOs’ discretion, limiting the effectiveness of this final rule. A discretionary rather than a prescriptive approach will allow RTOs/ISOs to determine what information may help another RTO/ISO carry out its credit risk management responsibilities and to share such information in a timely manner to limit negative credit events without the fear of running afoul of their tariffs or market participants when unique circumstances arise. 78. Although we do not adopt a prescriptive approach, we reiterate our expectation that RTOs/ISOs will use reasonable efforts to respond expeditiously to reasonable requests for credit-related information from other RTOs/ISOs. We believe the record in this proceeding demonstrates that RTOs/ISOs want to share credit-related information with one another for the purposes of credit risk management and mitigation. ddrumheller on DSK120RN23PROD with RULES1 F. Non-Jurisdictional Markets 1. NOPR 79. The Commission acknowledged that market participants in organized wholesale electric markets also transact in electric markets that are not Commission-jurisdictional, such as ERCOT, AESO, and IESO, as well as in commodities and derivatives markets subject to the jurisdiction of other regulators.95 The Commission did not propose to require the adoption of tariff provisions that would allow RTOs/ISOs to share credit-related information with these other market operators because of unresolved issues with such a proposal, including how the Commission could ensure the protection of market 94 Id. 95 NOPR, 180 FERC ¶ 61,048 P 35. VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 participants’ confidential information in the absence of authority to take remedial action.96 80. The Commission sought comment on possible frameworks that would account for jurisdictional limitations while still enabling RTOs/ISOs to share and receive credit-related information with and from other non-jurisdictional market operators.97 2. Comments 81. EPSA and Dominion agree that the Commission should not permit RTOs/ ISOs to share credit-related information with non-jurisdictional market operators in the absence of an ability to take remedial action to protect market participants’ confidential credit-related information.98 82. IRC requests that the Commission require RTOs/ISOs to amend their OATTs to allow credit-related information sharing not only with each other but also with market operators ERCOT, AESO, and IESO. IRC argues that excluding these market operators, which are not Commissionjurisdictional for these purposes, will limit awareness of credit risks that could impact RTOs/ISOs, and points to the example of the 2021 winter energy crisis in the ERCOT market.99 IRC contends that sharing credit-related information with these market operators could be achieved through reciprocity arrangements, including a Memorandum of Understanding among the RTOs/ISOs, ERCOT, AESO, and IESO that would address the relevant mechanics and allow any signatory to cease credit-related information sharing in the event it has concerns with another signatory’s potential or actual disclosure of confidential credit-related information.100 IRC acknowledges that the Commission would lack direct enforcement authority over ERCOT, AESO, or IESO, but argues that these market operators would be incented sufficiently to protect market participants’ confidential credit-related information by the possibility that one or more RTOs/ISOs would unilaterally cease sharing that information with them.101 3. Commission Determination 83. We decline to adopt IRC’s request to require RTOs/ISOs to propose OATT revisions that would also allow RTOs/ ISOs to share credit-related information 96 Id. P 36. 97 Id. 98 EPSA Comments at 7–8; Dominion Comments at 8–9. 99 IRC Initial Comments at 5. 100 Id. at 5–6. 101 Id. at 6. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 40705 with ERCOT, AESO, and IESO. We acknowledge IRC’s concerns, and that RTOs/ISOs could benefit from creditrelated information provided by ERCOT, AESO, and IESO. Nevertheless, we must balance IRC’s request and the effectiveness of credit-related information sharing against the interest of market participants in protecting confidential credit-related information. ERCOT, AESO, and IESO are not subject to the Commission’s jurisdiction in this area and we cannot direct them to share, or dictate how to handle, credit-related information under this final rule. In addition, we are not convinced by IRC’s suggestion that sharing credit-related information with these nonjurisdictional entities would incent ERCOT, AESO, and IESO to protect market participants’ confidential creditrelated information. Although this general incentive may exist, these entities do not have confidentiality provisions that the Commission has determined to be just and reasonable. For these reasons, this final rule only permits RTOs/ISOs to share creditrelated information with other RTOs/ ISOs. G. Miscellaneous 1. Comments 84. ETI and SPP MMU each request that the Commission consider consolidating certain RTO/ISO credit functions in a central credit entity. ETI argues that the Commission should consider requiring such an entity to monitor credit activity across the RTOs/ ISOs, and proposes that it would be an independent third party entity overseen by the Commission and governed by the RTOs/ISOs. ETI contends that this entity would analyze the creditworthiness of any RTO/ISO market participant and produce a credit report for that RTO/ISO, saving the RTOs/ISOs and their market participants both resources and time.102 SPP MMU points to the Commission’s routine collection of data from RTOs/ ISOs under Order No. 760, and argues that a similar approach here could eliminate ambiguity it claims arise from the discretion we afford RTOs/ISOs.103 2. Commission Determination 85. We decline ETI’s and SPP MMU’s requests for the consolidation of certain RTO/ISO credit functions in a central credit entity as outside the scope of this proceeding, which relates to the sharing of credit-related information among RTOs/ISOs. 102 ETI 103 SPP E:\FR\FM\22JNR1.SGM Comments at 7–8. MMU Comments at 4–5. 22JNR1 40706 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations H. Implementation V. Information Collection Statement 1. NOPR 86. The Commission proposed that it would require each RTO/ISO to submit a compliance filing consistent with a final rule in this proceeding in which the RTO/ISO would propose tariff revisions to permit credit-related information sharing.104 The Commission sought comment on whether 60 days after the effective date of any final rule would be sufficient time to develop this new tariff language. 90. 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. 91. This final rulemaking will amend the Commission’s regulations pursuant to section 206 of the FPA, to permit RTOs/ISOs to share among themselves credit-related information about market participants in organized wholesale electric markets. To accomplish this, the Commission will require RTOs/ISOs to adopt tariff revisions reflecting this reform. Such filings would be made under Part 35 of the Commission’s regulations. Furthermore, in relation to this new FERC collection (FERC 1005), filers will be required to submit a onetime compliance filing showing that they have updated their tariff provisions. 92. Title: FERC 1005: Credit-Related Information Sharing in Organized Wholesale Electric Markets. 93. Action: Collection of information in accordance with RM22–13–000. 94. OMB Control No.: 1902–[0325]. 95. Respondents for this Rulemaking: RTOs/ISOs. 96. Frequency of Information Collection: One-time compliance filing and ongoing information sharing (the 2. Comments 87. NEPOOL requests that the Commission allow up to 120 days for RTOs/ISOs to develop revisions to their OATTs if requested by an RTO/ISO. NEPOOL explains that this additional time would provide an opportunity for market participants to understand, discuss, and vote on any changes to ISO–NE financial assurance policies required to implement a potential final rule.105 3. Commission Determination 88. We adopt the NOPR proposal requiring RTOs/ISOs each to submit a compliance filing consistent with the regulations adopted herein and consistent with this final rule no later than 60 days after the effective date hereof. 89. As it pertains to NEPOOL’s request, we clarify that RTOs/ISOs may ask to extend the 60-day deadline, as necessary, to ensure that RTOs/ISOs and their stakeholders have the time to work together to review the RTO/ISO OATT and other governing documents and discuss revisions thereto. A. B. C. D. E. F. G. Collection Number of respondents Annual number of responses per respondent Total number of responses (column B × column C) Average burden hrs. & cost per response Total annual hr. burdens & total annual cost (column D × column E) Cost per respondent (column F ÷ column B) RTO/ISOs (one-time compliance filing) 109 .............. RTO/ISOs (ongoing information sharing) 110 ........... 6 6 1 2 6 12 25 hrs.; $2,175 ..... 4 hrs.; $348 .......... 150 hrs.; $13,050 .... 48 hrs.; $4,176 ........ $2,175 696 Totals ................................................................. ........................ ........................ ........................ ............................... 198 hrs.; $17,226 .... ........................ 104 NOPR, 180 FERC ¶ 61,048 P 31. Comments at 9–10. 106 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. 107 ‘‘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 105 NEPOOL ddrumheller on DSK120RN23PROD with RULES1 latter information would not be submitted to the Commission). 97. 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. 98. 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. 99. The Commission’s estimate contains two estimates regarding burden and cost. One estimate is for the onetime 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.106 100. The Commission estimates burden 107 and cost 108 as follows: VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 of what is included in the estimated burden, refer to 5 CFR 1320.3. 108 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 2022 average cost of $188,922/year (for wages plus benefits, for one fulltime employee), $91.00/hour is used. 109 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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 revisions with the Commission. The one-time cost associated with the compliance filing will be incurred in the first year, but we will annualize the burden and cost over three years to account for OMB’s three year approval period. The annualized burden and cost of the one-time filing is 50 hours (150/3 = 50) and $4,350 (13,050/3 = 4,350). 110 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. E:\FR\FM\22JNR1.SGM 22JNR1 Federal Register / Vol. 88, No. 119 / Thursday, June 22, 2023 / Rules and Regulations VI. Environmental Analysis 101. 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.111 We conclude that neither an Environmental Assessment nor an Environmental Impact Statement is required for this final rule under § 380.4(a)(15) of the Commission’s regulations, which provides a categorical exemption for approvals 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.112 ddrumheller on DSK120RN23PROD with RULES1 VII. Regulatory Flexibility Act 102. The Regulatory Flexibility Act of 1980 (RFA) 113 generally requires a description and analysis of 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,114 RTOs/ ISOs fall under the category of Electric Bulk Power Transmission and Control (NAICS code 221121) with a size threshold of 950 employees (including the entity and its associates).115 103. The RTOs/ISOs (i.e., SPP, MISO, PJM, ISO–NE, NYISO, and CAISO) each employ more than 950 employees and are not considered small. 104. 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.’’ 116 The Commission does 111 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). 112 18 CFR 380.4(a)(15). 113 5 U.S.C. 601–612. 114 13 CFR 121.201. 115 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 SBA’s 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). 116 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. VerDate Sep<11>2014 16:54 Jun 21, 2023 Jkt 259001 not consider the estimated cost to be a significant economic impact, nor does it effect a significant amount of small entities. As a result, we certify that the reforms in this final rule would not have a significant economic impact on a substantial number of small entities. ■ VIII. Document Availability ■ 105. 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). 106. 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, type the docket number excluding the last three digits of this document in the docket number field. 107. User assistance is available for eLibrary and the Commission’s website during normal business hours from FERC 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. IX. Effective Date and Congressional Notification 108. These regulations are effective August 21, 2023. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a ‘‘major rule’’ as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. List of Subjects in 18 CFR Part 35 Electric power rates, Electric utilities, Reporting and recordkeeping requirements By the Commission. Issued: June 15, 2023. Debbie-Anne A. Reese, Deputy Secretary. PO 00000 Frm 00023 Fmt 4700 PART 35—FILING OF RATE SCHEDULES AND TARIFFS 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. 2. Amend § 35.47 by adding paragraph (h) to read as follows: § 35.47 Tariff provisions regarding credit practices in organized wholesale electric markets. * * * * * (h)(1) Subject to paragraph (h)(2) of this section: (i) Permit organized wholesale electric markets to share market participant credit-related information with, and receive market participant credit-related information from, other organized wholesale electric markets for the purpose of credit risk management and mitigation; and (ii) Permit the receiving organized wholesale electric market to use creditrelated 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. (2) Require the receiving organized wholesale electric market to treat creditrelated information an organized wholesale electric market receives from another organized wholesale electric market as confidential under the terms set forth in the tariff or other governing document of the receiving organized wholesale electric market. [FR Doc. 2023–13287 Filed 6–21–23; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1301 [Docket No. DEA–574] RIN 1117–AB57 Reporting Theft or Significant Loss of Controlled Substances Drug Enforcement Administration, Department of Justice. ACTION: Final rule. AGENCY: The Drug Enforcement Administration (DEA) is publishing this final rule amending the regulations regarding DEA Form 106, used by DEA registrants to formally report thefts or significant losses of controlled SUMMARY: In consideration of the foregoing, the Commission amends part 35, subpart J, title 18, Code of Federal Regulations, as follows: Sfmt 4700 40707 E:\FR\FM\22JNR1.SGM 22JNR1

Agencies

[Federal Register Volume 88, Number 119 (Thursday, June 22, 2023)]
[Rules and Regulations]
[Pages 40696-40707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13287]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[Docket No. RM22-13-000; Order No. 895]


Tariff Provisions

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: Pursuant to section 206 of the Federal Power Act, the Federal 
Energy Regulatory Commission amends its regulations to require that 
regional transmission organizations and independent system operators 
have tariff provisions that 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.

DATES: This rule is effective August 21, 2023.

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:

ORDER NO. 895

FINAL RULE

(Issued June 15, 2023)

I. Introduction

    1. Pursuant to section 206 of the Federal Power Act (FPA),\1\ the 
Commission is revising Sec.  35.47 of Title 18 of the Code of Federal 
Regulations to require that regional transmission organizations (RTO) 
and independent system operators (ISO) have tariff provisions that 
permit them to share among themselves credit-related information 
regarding market participants in organized wholesale electric 
markets.\2\
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    \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'' RTOs/ISOs 
that are ``responsible for administering electric energy and 
financial transmission rights markets.''), order on reh'g, Order No. 
741-A, 76 FR 10492 (Feb. 25, 2011), 134 FERC ] 61,126, reh'g denied, 
Order No. 741-B, 135 FERC ] 61,242 (2011).
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    2. The ability of RTOs/ISOs to share credit-related information 
among themselves will 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 should 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.

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\
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    \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).

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[[Page 40697]]

    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\ The 
Commission explained that risk management and creditworthiness 
practices are important to the organized wholesale electric markets 
because of this mutualized default risk.\6\
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    \4\ Credit Reforms in Organized Wholesale Elec. 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 from 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 OATT, Sixth Revised Volume No. 1, attach. AE 
(MPL), section 3.7 (0.0.0) (requiring SPP to validate that 
prospective market participants meet SPP's credit requirements).
    \9\ See, e.g., NYISO, NYISO Tariffs, NYISO MST, 26.1 MST attach. 
K (Minimum Participation Criteria) (4.0.0), section 26.1.2 
(requiring customers to demonstrate ongoing compliance with minimum 
participation requirements in section 26.1.1).
    \10\ See, e.g., PJM, Intra-PJM Tariffs, OATT, attach. Q 
(45.0.0), section II.E (requiring market participants to provide 
information on an ongoing basis).
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    6. Generally, market participants and prospective market 
participants do not make the credit-related information provided to 
RTOs/ISOs publicly available. For their part, 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, limiting the ability of RTOs/ISOs to share this 
information with other parties, including other RTOs/ISOs.\11\
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    \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'').
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    7. 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, when defaults do occur, 
minimize the costs resulting from such defaults.
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    \12\ See, e.g., PJM, Intra-PJM Tariffs, OA, section 15.2 
(7.0.0), section 15.2.2; SPP, OATT, Sixth Revised Volume No. 1, 
attach. L, section V (1.0.0).
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C. Technical Conference

    8. In February 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.\13\
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    \13\ See Supplemental Notice of Technical Conference, RTO/ISO 
Credit Principles and Practices, Docket No. AD21-6-000, et al. (Feb. 
10, 2021).
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    9. As relevant here, 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.\14\ Additionally, the ISO/RTO Council (IRC) \15\ stated in 
its post-technical conference comments 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.\16\ 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.\17\ The IRC therefore recommended, 
among other things, that the Commission require RTOs/ISOs to adopt 
tariff revisions permitting RTOs/ISOs to share credit-related 
information with other RTOs/ISOs and proposed certain tariff 
language.\18\
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    \14\ 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). 
For example, one panelist explained that it would be helpful for an 
RTO/ISO credit department to know that a market participant is 
experiencing financial distress in another organized wholesale 
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. 
Id. at Tr. 104:21-105:6 (Prevratil). 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).
    \15\ 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 for purposes of 
this final rule, including Electric Reliability Council of Texas, 
Inc. (ERCOT), the Alberta Electric System Operator (AESO), and the 
Independent Electricity System Operator (IESO).
    \16\ 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).
    \17\ Id. at 5.
    \18\ Id. at 6-8.
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D. Notice of Proposed Rulemaking

    10. On July 28, 2022, the Commission issued a notice of proposed 
rulemaking pursuant to the Commission's authority under FPA section 
206.\19\ The Commission preliminarily found that it is unjust and 
unreasonable for RTOs/ISOs to be unable to share with each other 
credit-related information about their market participants, and that 
tariff provisions that prohibit or otherwise limit an RTO/ISO from 
sharing credit-related information are unjust and unreasonable. The 
Commission

[[Page 40698]]

reasoned that such tariff provisions 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. The Commission further 
reasoned that, because the costs of such defaults typically are 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.\20\
---------------------------------------------------------------------------

    \19\ Credit-Related Info. Sharing in Organized Wholesale Elec. 
Mkts., Notice of Proposed Rulemaking, 87 FR 48118 (Aug. 8, 2022), 
180 FERC ] 61,048 (2022) (NOPR).
    \20\ Id. P 14.
---------------------------------------------------------------------------

    11. To address RTOs'/ISOs' access to credit-related information, 
the Commission proposed in the NOPR to amend its 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. The 
Commission also proposed in the NOPR 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 from its own market 
participants.\21\
---------------------------------------------------------------------------

    \21\ Id. P 21.
---------------------------------------------------------------------------

    12. Initial comments were due on or before October 7, 2022; reply 
comments were due on or before November 7, 2022.\22\
---------------------------------------------------------------------------

    \22\ The following parties submitted initial comments: Dominion 
Energy Services, Inc., on behalf of Virginia Electric and Power 
Company and Dominion Energy South Carolina, Inc. (Dominion); Edison 
Electric Institute (EEI); Electric Power Supply Association (EPSA); 
the Energy Trading Institute (ETI); FirstEnergy Utility Companies 
and East Kentucky Power Cooperative, Inc. (Indicated PJM Utilities); 
IRC; Market Monitoring Unit of the Southwest Power Pool, Inc. (SPP 
MMU); and New England Power Pool Participants Committee (NEPOOL). 
The following parties submitted reply comments: IRC and Kiera 
Howard.
---------------------------------------------------------------------------

    13. In general, commenters support the NOPR proposal to permit 
RTOs/ISOs to share credit-related information among themselves. For 
example, IRC states that, because market participants operate in 
multiple organized wholesale electric markets, the NOPR proposal would 
enhance RTOs'/ISOs' ability to accurately assess market participants' 
credit exposure. IRC also argues that the NOPR proposal would assist 
RTOs/ISOs in their efforts to respond more quickly to credit events and 
thereby minimize overall credit-related risks of unexpected defaults by 
market participants in organized wholesale electric markets.\23\ EEI 
states that the NOPR proposal would enhance RTOs'/ISOs' ability to 
evaluate market participants' creditworthiness and respond to credit 
events, which will prevent or mitigate defaults and limit unnecessary 
costs incurred by non-defaulting market participants.\24\
---------------------------------------------------------------------------

    \23\ IRC Initial Comments at 2.
    \24\ EEI Comments at 3.
---------------------------------------------------------------------------

    14. Indicated PJM Utilities and ETI each offers qualified support 
for the NOPR proposal. Indicated PJM Utilities generally agrees with 
the NOPR proposal to allow RTOs/ISOs to share credit-related 
information among themselves and commends the Commission for proposing 
solutions consistent with stakeholder feedback at the technical 
conference.\25\ ETI states that, with certain guiding principles in 
place, credit-related information sharing among RTOs/ISOs will enhance 
credit risk assessment efforts.\26\ EPSA argues that credit-related 
information sharing should not be conducted on a routine basis, though 
it concedes that there may be some instances in which it would be 
appropriate.\27\
---------------------------------------------------------------------------

    \25\ Indicated PJM Utilities Comments at 2.
    \26\ ETI Comments at 2.
    \27\ EPSA Comments at 5.
---------------------------------------------------------------------------

III. Need for Reform

    15. We 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, and that tariff provisions that prohibit or 
otherwise limit an RTO/ISO from sharing credit-related information are 
unjust and unreasonable. Such tariff provisions can hinder an RTO's/
ISO's ability to evaluate a market participant's creditworthiness and 
to respond to credit events, and thus, in turn, can hinder its ability 
to prevent or mitigate default by market participants.\28\ Because the 
costs of such defaults typically are 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. Therefore, we find that removing such tariff provisions 
will help minimize the costs of mutualized defaults and ensure just and 
reasonable rates.
---------------------------------------------------------------------------

    \28\ NOPR, 180 FERC ] 61,048 P 14.
---------------------------------------------------------------------------

    16. RTOs/ISOs are responsible for credit risk management as the 
entities responsible for administering organized wholesale electric 
markets, and perform this responsibility by instituting, maintaining, 
and enforcing policies that balance the need for robust market 
participation and liquidity while seeking to minimize mutual default 
risk.\29\ In order to manage credit risk in the organized wholesale 
electric markets, RTOs/ISOs must have adequate information about their 
market participants' financial standing and their business and 
operational activities in other organized wholesale electric markets. 
Having this information will allow each RTO/ISO to assess those market 
participants' default risk more effectively. Generally speaking, 
however, each RTO/ISO currently has access only to publicly available 
information and to the credit-related information provided by its own 
market participants. Therefore, we conclude that RTOs/ISOs may have 
limited visibility, if any, into their market participants' activities 
in other organized wholesale electric markets.
---------------------------------------------------------------------------

    \29\ Id. P 15.
---------------------------------------------------------------------------

    17. Additionally, 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.\30\ These developments have complicated 
the ability of any individual RTO/ISO credit department to develop a 
complete, accurate, and up-to-date picture of a market participant's 
overall financial condition due to real or perceived barriers to 
information sharing among RTOs/ISOs. Negative credit events affecting a 
market participant's credit standing in one organized wholesale 
electric market may impact its credit standing in other markets. 
Therefore, 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 effectively protect its 
organized wholesale electric market from mutualized default risk.
---------------------------------------------------------------------------

    \30\ RTO/ISO Credit Principles and Practices, Technical 
Conference, Docket No. AD21-6-000, et al., Tr. 30:12-14 (Heinle) 
(Feb. 25, 2021).
---------------------------------------------------------------------------

    18. 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.\31\ The Commission finds that such 
tariff provisions effectively allow a market participant to limit the 
amount and quality of information that

[[Page 40699]]

an RTO/ISO may access and use to assess that market participant's 
financial standing, and that these provisions therefore pose an unjust 
and unreasonable barrier to credit risk management and mitigation by 
the RTOs/ISOs.\32\
---------------------------------------------------------------------------

    \31\ 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's 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).
    \32\ See, e.g., RTO/ISO Credit Principles and Practices, 
Technical Conference, Docket No. AD21-6-000, et al., Tr. 116:6-10 
(Brown) (Feb. 25, 2021) (suggesting that MISO's OATT prohibits 
disclosure of a MISO market participant's financial distress even if 
that market participant is on the verge of default).
---------------------------------------------------------------------------

IV. Discussion

    19. Therefore, to address limitations to RTOs'/ISO' access to 
potentially relevant credit-related information, we amend Commission 
regulations to require that each RTO/ISO have tariff provisions that 
permit RTOs/ISOs to share market participants' credit-related 
information with other RTOs/ISOs for the purpose of credit risk 
management and mitigation.
    20. Specifically, we adopt the proposed regulations to: (1) permit 
RTOs/ISOs to share with each other credit-related information; (2) 
permit RTOs/ISOs to use market participant credit-related information 
received from other RTOs/ISOs to the same extent and for the same 
purpose as information received from its own market participants; and 
(3) require that an RTO/ISO that receives credit-related information 
from another RTO/ISO keep that information confidential as it would any 
other credit-related information received directly from one of its own 
market participants.
    21. The regulations we adopt will allow the RTOs/ISOs to share 
credit-related information among themselves as necessary, helping them 
to better monitor the ongoing risks in their markets that may change 
quickly, but without creating uncertainty among the RTOs/ISOs about 
what information is permissible to share. In addition, credit-related 
information sharing will help RTOs/ISOs to carry out their credit risk 
management responsibilities, which, in turn, will benefit all market 
participants and their customers that ultimately bear the cost of 
mutualized default risk.
    22. We respond to objections to or requests for clarification on 
the NOPR proposal to allow credit-related information sharing in 
organized wholesale electric markets below.

A. Shareable Credit-Related Information

1. NOPR
    23. The Commission explained that its proposal would allow RTOs/
ISOs to share credit-related information, including: (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.\33\ The Commission sought comment on whether it should impose 
restrictions on the types of credit-related information that RTOs/ISOs 
may share with one another.\34\
---------------------------------------------------------------------------

    \33\ NOPR, 180 FERC ] 61,048 P 22.
    \34\ Id. PP 22, 30.
---------------------------------------------------------------------------

2. Comments
    24. EEI and Indicated PJM Utilities request that the Commission 
define ``credit-related information'' more precisely than in the NOPR 
proposal. EEI states that RTOs/ISOs otherwise may interpret ``credit-
related information'' differently,\35\ while Indicated PJM Utilities 
requests that the Commission establish a ``standardized list of 
documentation'' that RTOs/ISOs could collect from market 
participants.\36\ By contrast, IRC requests that the Commission decline 
to define credit-related information,\37\ while SPP MMU argues that it 
would be nearly impossible to create a distinct set of all-
encompassing, currently applicable circumstances in which credit-
related information sharing would be appropriate.\38\
---------------------------------------------------------------------------

    \35\ EEI Comments at 3.
    \36\ Indicated PJM Utilities Comments at 13-14.
    \37\ IRC Reply Comments at 3.
    \38\ SPP MMU Comments at 4.
---------------------------------------------------------------------------

    25. EPSA states that phases such as ``unresolved credit/collateral 
issues'' and ``an increased risk of default, such as a material adverse 
change or change in creditworthiness'' are too vague, and that the 
former may encompass billing disputes between the market participant 
and RTO/ISO and not necessarily an increased credit risk.\39\ Dominion 
likewise states that the Commission should not allow RTOs/ISOs to share 
such information unless it represents a material adverse change that is 
confirmed and no longer subject to dispute.\40\
---------------------------------------------------------------------------

    \39\ EPSA Comments at 6-7.
    \40\ Dominion Comments at 4.
---------------------------------------------------------------------------

    26. Dominion expresses concern that RTOs/ISOs might abuse their 
discretion and share credit-related information that might wrongfully 
prevent a market participant from participating in the market, 
particularly with respect to the Commission's proposal to allow RTOs/
ISOs to share with other RTOs/ISOs ``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.'' \41\ Dominion argues that RTOs/ISOs should only be able 
to share ``bankruptcy filings, confirmed undisputed material financial 
defaults in their wholesale energy markets or bilateral arrangements, 
disciplinary actions taken for market activity not in keeping with 
[Commission] regulations or the RTO/ISO/market operator's rules, 
findings of material defalcation, market manipulation or fraud, and 
findings of violations of federal and state regulations regarding 
energy commodities, [or Commodity Futures Trading Commission] or 
[Commission] regulations.'' \42\
---------------------------------------------------------------------------

    \41\ Id. at 5.
    \42\ Id. at 6.
---------------------------------------------------------------------------

    27. Indicated PJM Utilities requests that the Commission adopt an 
``active participation'' requirement, according to which an RTO/ISO 
should not receive credit-related information unless it demonstrates 
that the relevant entity is a market participant, or a prospective or 
former market participant. Indicated PJM Utilities reasons that to 
preserve confidentiality to the greatest extent possible, RTOs/ISOs 
should only share credit-related information when it is relevant to 
evaluating a credit-related risk, and that other RTOs/ISOs have no need 
of the information if the entity is not a former, current, or 
prospective market participant.\43\
---------------------------------------------------------------------------

    \43\ Indicated PJM Utilities Comments at 2-5.
---------------------------------------------------------------------------

    28. Dominion and Indicated PJM Utilities each also requests 
clarification as to what credit-related information RTOs/ISOs should be 
allowed to share among themselves. Dominion states that, with respect 
to the Commission's proposal to allow RTOs/ISOs to disclose to other 
RTOs/ISOs 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, it is not clear 
whether an RTO/ISO may only share credit-related

[[Page 40700]]

information related to obligations owed to the RTO/ISO or whether an 
RTO/ISO might also share credit-related information related to 
obligations owed by the market participant to unrelated third 
parties.\44\ Indicated PJM Utilities argues that RTOs/ISOs should only 
share credit-related information received directly from a market 
participant, and should not share information received from another 
RTO/ISO.\45\
---------------------------------------------------------------------------

    \44\ Dominion Comments at 4-5.
    \45\ Indicated PJM Utilities Comments at 13-14.
---------------------------------------------------------------------------

    29. Finally, EPSA expresses concern that the NOPR's definition of 
credit-related information encompasses information about a market 
participant's affiliates, and states that this could be inappropriate 
because some such affiliates are fully distinct, standalone companies 
with separate debt and equity structures.\46\
---------------------------------------------------------------------------

    \46\ EPSA Comments at 6.
---------------------------------------------------------------------------

3. Commission Determination
    30. We set forth a list of examples of the types of credit-related 
information that an RTO/ISO may share, as proposed in the NOPR, but 
this list is illustrative and we decline to adopt a restrictive or 
exclusive list. We find that RTOs/ISOs should be allowed to share 
credit-related information, including: (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.
    31. This list is illustrative and not exhaustive. We believe that 
the list provides sufficient examples of the types of credit-related 
information that may help RTOs/ISOs carry out their credit risk 
management responsibilities.
    32. We recognize that EPSA believes that the list above is vague 
and that several commenters (including Dominion and Indicated PJM 
Utilities) request limitations on or clarifications to the kinds of 
credit-related information that RTOs/ISOs may share among themselves. 
Because we cannot reasonably foresee every circumstance in which RTOs/
ISOs may seek to share credit-related information, nor determine every 
type of credit-related information that may be useful to share, we 
decline to adopt an exclusive list restricting the type of credit-
related information that may be shared. We find it reasonable to allow 
RTOs/ISOs, as independent entities, to exercise their discretion in 
determining the kinds of credit-related information to share with each 
other. This approach is consistent with the Commission's approach in 
creditworthiness matters. In Order No. 741, the Commission declined to 
adopt a list of events that qualified as a ``material adverse change,'' 
because it would limit the market administrator, i.e., the RTO/ISO. The 
Commission reasoned: ``Experience has demonstrated that unforeseen 
circumstances can arise, which will require action to protect the 
markets from ongoing disruption.'' \47\
---------------------------------------------------------------------------

    \47\ Order No. 741, 133 FERC ] 61,060 at P 150.
---------------------------------------------------------------------------

    33. We decline to define credit-related information more 
specifically as requested by EEI and Indicated PJM Utilities.\48\ We 
find that a specific, restrictive definition would unnecessarily narrow 
the information that RTOs/ISOs could share and would unnecessarily 
limit RTOs'/ISOs' discretion in an area that is well within their 
responsibility and expertise.
---------------------------------------------------------------------------

    \48\ EEI Comments at 3; Indicated PJM Utilities Comments at 13-
14.
---------------------------------------------------------------------------

    34. We decline to preclude RTOs/ISOs from sharing credit-related 
information that is subject to dispute, as requested by EPSA and 
Dominion. We find that imposing such a limitation could prevent RTOs/
ISOs from timely sharing credit-related information and lessen the 
RTOs'/ISOs' ability to prevent or mitigate defaults. Allowing only 
undisputed information to be shared may also incent market participants 
to pursue disputes as a means of precluding other RTOs/ISOs from 
receiving information about their credit-related activities in another 
RTO/ISO. We expect that RTOs/ISOs sharing credit-related information 
will provide relevant details necessary for the receiving RTO/ISO to 
assess potential credit risk effects, including, as appropriate, that 
the information is subject to dispute. We clarify that RTOs/ISOs 
receiving credit-related information are permitted to seek clarifying 
information from the sending RTO/ISO, if necessary. Further, we believe 
that as independent entities, the RTO/ISO credit departments are 
capable of impartially assessing credit-related information they 
receive and responding effectively, as appropriate.
    35. We decline to require that credit-related information-sharing 
be subject to an active participation requirement as requested by 
Indicated PJM Utilities. Indicated PJM Utilities have not shown what 
interest or incentive an RTO/ISO would have to use credit-related 
information received from another RTO/ISO related to an entity that is 
not among the RTO/ISO's former, current, or prospective market 
participants. Further, as to concerns about the confidentiality of 
information that an RTO/ISO might obtain regarding an entity that is 
not among its market participants, we note that RTOs/ISOs handle 
substantial amounts of their market participants' commercially 
sensitive information and have established practices for protecting its 
confidentiality. As such, while this final rule will allow RTOs/ISOs to 
share credit-related information among themselves, we are not persuaded 
that the sharing of such information among other RTOs/ISOs materially 
increases the risk of its disclosure beyond the RTOs/ISOs.
    36. Further, we see practical issues with limiting the scope of 
market participant credit-related information as requested by Indicated 
PJM Utilities. For example, it may be valuable in some instances for 
RTOs/ISOs to share with one another certain kinds of credit-related 
information on a routine basis, such as lists of market participants 
with positions in that market (category (1) above). For such documents 
that include information about a large number of market participants, 
it may not be feasible to verify each market participant's ``active'' 
status in the markets operated by the recipient RTO/ISO, or produce 
multiple customized reports for each RTO/ISO including only the 
recipient RTO's/ISOs' former, current, and prospective market 
participants. In other situations, an RTO/ISO might share reports 
including credit-related information related to multiple market 
participants (category (2) above), raising similar concerns. But as 
explained below, RTOs/ISOs must treat credit-related information they 
receive from another RTO/ISO under this final rule as they would 
credit-related information they received from their own market 
participants.
    37. With respect to our proposal to allow RTOs/ISOs to disclose 
that a market participant or affiliate has defaulted on any of its 
financial or contractual obligations, failed to pay

[[Page 40701]]

invoices on a timely basis, or failed to meet a collateral call 
(category (3) above), we decline Dominion's request that we limit such 
disclosures to obligations owed to the RTO/ISO and not also to 
unrelated third parties. We find that information about a market 
participant's credit activity outside of the RTO/ISO markets may be 
relevant to its creditworthiness within the RTO/ISO markets. RTOs/ISOs 
often collect from their market participants credit-related information 
about a market participant's obligations owed to third parties. Thus, 
an RTO/ISO may find such information relevant as it assesses credit 
risks.\49\ For similar reasons, we also decline Indicated PJM 
Utilities' request that we limit the credit-related information that an 
RTO/ISO may share to information collected directly from its own market 
participants. Further, we believe that adopting Indicated PJM 
Utilities' recommendation could prove counterproductive by causing 
uncertainty in RTO/ISO credit departments on which types of information 
are permissible to share during fast-moving credit events that results 
in RTOs/ISOs not timely sharing credit-related information.
---------------------------------------------------------------------------

    \49\ See, e.g., Indicated PJM Utilities Comments at 8-9 
(indicating that NYISO requires market participants to submit 
information related to any ``material defaults or bankruptcies by 
the [market participant] or its predecessors, subsidiaries, or 
affiliates within the last five years'' or ``material changes in 
financial status'').
---------------------------------------------------------------------------

    38. Finally, in response to EPSA's concern with the inclusion of 
credit-related information relating to a market participant's 
affiliate, we clarify that the definition of affiliates in this context 
is to be governed by the definition of affiliate provided in the RTO's/
ISO's OATT for purposes of determining market participants' 
creditworthiness.\50\ If an affiliate's financial standing changes in a 
way that requires a market participant to post additional collateral, 
for example, that information may be relevant in another RTO's/ISO's 
credit risk assessment. To the extent that the definitions of affiliate 
vary materially from one RTO/ISO to another, we reiterate our belief 
that RTO/ISO credit departments that receive credit-related information 
are capable of impartially assessing it and responding effectively and 
appropriately.
---------------------------------------------------------------------------

    \50\ See, e.g., SPP, OATT, Sixth Revised Volume No. 1, attach. 
X, section 2.1 (defining ``Affiliate'' and ``Affiliated Credit 
Customers''); id. section 4.3.4.1 (requiring SPP to determine 
creditworthiness of Affiliated Credit Customers collectively).
---------------------------------------------------------------------------

B. Discretion for RTOs/ISOs

1. NOPR
    39. The Commission proposed to allow an RTO/ISO to use credit-
related information received from another RTO/ISO to the same extent 
and for the same purposes as that RTO/ISO may use credit-related 
information collected from its own market participants.\51\ The 
Commission explained that this would allow RTOs/ISOs the discretion to 
determine what credit-related information it would share with other 
RTOs/ISOs, as well as under what circumstances and on what timeline it 
would do so.\52\
---------------------------------------------------------------------------

    \51\ NOPR, 180 FERC ] 61,048 P 21.
    \52\ Id. P 27.
---------------------------------------------------------------------------

    40. The Commission stated that it believed the NOPR proposal 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.\53\ The Commission preliminarily found that RTOs/ISOs would 
benefit from the ability to discuss the creditworthiness of specific 
market participants, and that permitting RTOs/ISOs to share credit-
related information with other RTOs/ISOs would 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.\54\ The Commission also preliminarily found that credit-related 
information sharing would help RTOs/ISOs prevent or mitigate losses in 
the event that a market participant experiences financial distress, and 
potentially help RTOs/ISOs prevent default in one organized wholesale 
electric market from triggering default in another.\55\
---------------------------------------------------------------------------

    \53\ Id. P 24.
    \54\ Id. P 25.
    \55\ Id. P 26.
---------------------------------------------------------------------------

    41. Finally, the Commission also stated that the NOPR would not 
change the existing discretion an RTO/ISO has to act on credit-related 
information, regardless of its source.\56\
---------------------------------------------------------------------------

    \56\ Id. P 28.
---------------------------------------------------------------------------

2. Comments
    42. IRC argues that RTOs/ISOs should be able to use credit-related 
information to the same extent and for the same purposes as other 
credit-related information. IRC contends that a final rule should allow 
RTO/ISO credit risk personnel to focus on activities that help achieve 
the objectives set forth in the NOPR, i.e., to identify and manage 
credit risks and protect non-defaulting market participants from the 
consequences of credit defaults.\57\ SPP MMU also argues that RTOs/ISOs 
should have discretion on how to use credit-related information 
received from another RTO/ISO.\58\ By contrast, Dominion opposes what 
it calls ``unfettered discretion'' for RTOs/ISOs, arguing that the 
Commission instead should afford RTOs/ISOs only ``reasonable 
discretion.'' \59\
---------------------------------------------------------------------------

    \57\ IRC Initial Comments at 3-5.
    \58\ SPP MMU Comments at 4.
    \59\ Dominion Comments at 5-6.
---------------------------------------------------------------------------

    43. NEPOOL contends that the Commission should require each RTO/ISO 
to specify in compliance filings to a potential final rule what 
criteria the RTO/ISO will use to determine when it will share credit-
related information and what types of information it will share.\60\ 
ETI likewise states that RTOs/ISOs should only share credit-related 
information when triggered by certain universally-applied metrics, 
e.g., percentage of exposure/collateral posted, material changes in 
know-your-customer or risk management policies.\61\ In reply, IRC 
disagrees and requests that the Commission not specify circumstances in 
which RTOs/ISOs may or may not share credit-related information, 
arguing that each RTO/ISO has the responsibility to manage credit risks 
and should be granted the flexibility to do so.\62\
---------------------------------------------------------------------------

    \60\ NEPOOL Comments at 5-6.
    \61\ ETI Comments at 4.
    \62\ IRC Reply Comments at 3.
---------------------------------------------------------------------------

    44. ETI argues that RTOs/ISOs should be careful about sharing 
credit-related information during system stress events, because losses 
in one organized wholesale electric market could lead to collateral 
calls in other markets that might exacerbate the situation. ETI 
therefore states that RTOs/ISOs should not share information related to 
margin or collateral calls issued to market participants.\63\
---------------------------------------------------------------------------

    \63\ ETI Comments at 3-5.
---------------------------------------------------------------------------

    45. EPSA argues that an RTO/ISO that receives credit-related 
information from another RTO/ISO may misunderstand that information and 
take action erroneously in response. EPSA therefore argues that market 
participants should have a minimum window of time during which to 
resolve billing disputes before an RTO/ISO may share information 
related to that dispute.\64\
---------------------------------------------------------------------------

    \64\ EPSA Comments at 5-7.
---------------------------------------------------------------------------

    46. Finally, ETI argues that a potential final rule should 
encourage collaboration and coordination within each RTO/ISO between 
its operations,

[[Page 40702]]

planning, and credit departments. ETI cites the example of a default 
that it claims was caused by construction taking place during a 
critical outage, and claims that the outage could have been delayed had 
more robust communication occurred within the RTO/ISO.\65\
---------------------------------------------------------------------------

    \65\ ETI Comments at 3, 6-7.
---------------------------------------------------------------------------

3. Commission Determination
    47. We adopt the proposal set forth in the NOPR that, in sharing 
credit-related information under the adopted regulations, an RTO/ISO 
has discretion as to what credit-related information it chooses to 
provide to other RTOs/ISOs, as well as under what circumstances and on 
what timeline it chooses to do so. Similarly, as noted above, an RTO/
ISO that receives credit-related information pursuant to the 
regulations adopted in this final rule may use that information as it 
would credit-related information from any other source. We find that, 
as the independent entities with the most insight into and knowledge of 
what credit-related information would be useful to share, RTOs/ISOs 
should have flexibility to best accomplish the intended purpose of the 
rule, which aims to remove unjust and unreasonable barriers that 
restrict communication of credit-related information between the RTOs/
ISOs.\66\ We find that providing RTOs/ISOs flexibility about what 
credit information to share and how to use credit-related information 
it receives will improve the RTOs'/ISOs' ability to mitigate credit 
risks without creating uncertainty for RTOs/ISOs as to the manner in 
which they are sharing credit-related information.
---------------------------------------------------------------------------

    \66\ Moreover, granting RTOs/ISOs this level of discretion is 
consistent with our precedent. 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.'').
---------------------------------------------------------------------------

    48. This approach will provide an RTO/ISO the discretion to 
determine what credit-related information it would share with other 
RTOs/ISOs, as well as under what circumstances and on what timeline it 
would do so. Gaining additional visibility into their market 
participants' financial condition will help RTOs/ISOs 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. RTOs/ISOs will be able to discuss with 
each other the creditworthiness of specific market participants, and 
nothing in this final rule precludes these discussions as a means to 
better inform RTOs/ISOs in the management of credit risk on an ongoing 
basis.
    49. We reject Dominion's characterization of the discretion we 
afford the RTOs/ISOs as ``unfettered.'' As an initial matter, RTOs/ISOs 
may share credit-related information only for the purpose of credit 
risk management and mitigation. An RTO's/ISO's discretion is further 
constrained by its OATT, because RTOs/ISOs may only use the credit-
related information shared under this final rule to the same extent and 
for the same purposes as that RTO/ISO may use credit-related 
information collected from its own market participants. Therefore, an 
RTO/ISO sharing a market participant's credit-related information does 
not necessarily entail negative consequences for a market participant, 
let alone automatic consequences. The RTO/ISO must follow rules and 
procedures set forth in its Commission-approved OATT, and market 
participants are therefore provided the safeguards set forth in the 
OATT. If the RTO/ISO takes action that violates its OATT, the entity 
whose information was shared may turn to dispute resolution mechanisms 
available to it \67\ or submit a complaint under FPA section 206. The 
Commission has the authority to ensure that RTOs/ISOs act in a manner 
consistent with their OATTs. For the same reasons, we also reject 
NEPOOL and ETI's requests for written criteria and metrics, 
respectively, which we believe would unreasonably constrain the RTOs'/
ISOs' discretion.
---------------------------------------------------------------------------

    \67\ See, e.g., SPP OATT, Sixth Revised Volume No. 1, attach. X, 
section 1.6 (subjecting disputes regarding SPP's Credit Policy to 
the dispute resolution mechanism in the SPP OATT).
---------------------------------------------------------------------------

    50. We also reject EPSA's argument that an RTO/ISO might 
misinterpret credit-related information it receives and take erroneous 
action as a consequence. EPSA's concerns are at best speculative and 
granting their requests would unreasonably constrain RTOs'/ISOs' 
discretion as information on margin or collateral calls may be useful 
in understanding a market participant's market losses that require 
additional collateral and on which market participants could have 
potential liquidity problems due to margin calls. We again reiterate 
that RTO/ISO credit departments that receive credit-related information 
are capable of impartially assessing it and responding effectively and 
appropriately. We decline to preclude RTOs/ISOs from sharing 
information about margin or collateral calls during system stress 
events as suggested by ETI. A market participant's failure to make a 
margin or collateral call is highly relevant to its creditworthiness, 
particularly during stress events.
    51. Finally, we reject ETI's request that the Commission encourage 
collaboration and coordination within each RTO/ISO because it is 
outside the scope of this proceeding, which is focused on credit-
related information sharing among RTOs/ISOs and not on internal 
communications within each RTO/ISO.

C. Consent of or Notice to Market Participants

1. NOPR
    52. The Commission preliminarily found an RTO's/ISO's sharing of a 
market participant's credit-related information must not be conditioned 
on the consent of the market participant.\68\ The Commission stated 
that existing OATT provisions implicitly impose a barrier to credit-
related information sharing, as the OATT provisions treat market 
participants' credit-related information as confidential information 
and, in most instances, prohibit an RTO/ISO from sharing credit-related 
information with other RTOs/ISOs without the consent of the market 
participant. The Commission further observed that these provisions 
effectively 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.\69\
---------------------------------------------------------------------------

    \68\ NOPR, 180 FERC ] 61,048 P 23.
    \69\ Id. P 19.
---------------------------------------------------------------------------

    53. The Commission also proposed that an RTO/ISO would not be 
required to notify its own market participants before sharing their 
credit-related information because an RTO's/ISO's OATT, 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.\70\ The Commission stated 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.
---------------------------------------------------------------------------

    \70\ Id. P 23.
---------------------------------------------------------------------------

2. Comments
    54. IRC and Indicated PJM Utilities express support for the NOPR 
proposal not to condition an RTO's/ISO's ability

[[Page 40703]]

to share credit-related information on the RTO's/ISO's obtaining prior 
consent from or providing notice to market participants.\71\
---------------------------------------------------------------------------

    \71\ IRC Initial Comments at 3, 4 n.9; Indicated PJM Utilities 
Comments at 2.
---------------------------------------------------------------------------

    55. While no party requests that the Commission require RTOs/ISOs 
to obtain market participants' prior consent, EPSA and NEPOOL each 
argue that the Commission should require an RTO/ISO to provide notice 
when the RTO/ISO shares the market participants' credit-related 
information. According to EPSA, RTOs/ISOs should notify market 
participants immediately upon sharing their credit-related 
information.\72\ NEPOOL contends that timely notice would suffice, 
e.g., within 30 days of sharing, and argues that this would not burden 
RTOs/ISOs because they could use electronic means to provide such 
notice.\73\
---------------------------------------------------------------------------

    \72\ EPSA Comments at 5.
    \73\ NEPOOL Comments at 7-8.
---------------------------------------------------------------------------

    56. Finally, Indicated PJM Utilities argues that the Commission 
should require RTOs/ISOs to establish recordkeeping requirements in 
accordance with which the RTO/ISO that shares credit-related 
information with another RTO/ISO would be required to document: (1) 
what credit-related information it shared; (2) the date on which it was 
shared; and (3) the recipient RTO/ISO. Indicated PJM Utilities contends 
that the inclusion of such requirements would create an auditable 
record that would provide additional security to market 
participants.\74\
---------------------------------------------------------------------------

    \74\ Indicated PJM Utilities Comments at 14-15.
---------------------------------------------------------------------------

3. Commission Determination
    57. We adopt the findings, set forth in the NOPR, that an RTO/ISO 
must be allowed to share credit-related information without either 
obtaining the prior consent of market participants or providing 
specific notice to market participants.
    58. We do not require consent for the sharing of credit-related 
information because a consent requirement would hinder information 
sharing. A market participant would have little incentive to provide 
consent and indeed could effectively limit RTOs'/ISOs' access to 
credit-related information by withholding its consent--a particular 
concern if a market participant faces a pending credit event. Further, 
obtaining consent would impose an administrative burden on the RTO/ISO.
    59. We find that the revised OATTs--as well as this final rule--put 
market participants on notice that their credit-related information may 
be shared with another RTO/ISO for the purpose of credit risk 
management and mitigation. We reject EPSA and NEPOOL's requests that we 
require RTOs/ISOs to provide notice to market participants that is 
concurrent with the credit-related information sharing or within 30 
days thereof, respectively. Market participants experiencing credit 
events should expect that credit-related information will be shared 
among the RTOs/ISOs that they participate in. Requiring that RTOs/ISOs 
provide specific notice to market participants each time credit-related 
information is shared will provide little benefit to market 
participants while unnecessarily burdening RTO/ISO credit departments 
that are responsible for minimizing credit default risk and mitigating 
the effects of credit defaults that do occur.
    60. We further consider the practical burden of a notice 
requirement in the event RTOs/ISOs share certain kinds of credit-
related information. For example, credit-related information in 
categories (1) and (2) above may contain the credit-related information 
of multiple market participants.\75\ We disagree with NEPOOL that 
providing notice will not impose a burden on RTOs/ISOs and find that 
such a requirement might create a barrier that dissuades RTOs/ISOs from 
sharing this type of credit-related information.
---------------------------------------------------------------------------

    \75\ See supra P 30 (setting forth categories of credit-related 
information).
---------------------------------------------------------------------------

    61. We decline to impose a record-keeping requirement on RTOs/ISOs 
for any credit-related information sharing, as requested by Indicated 
PJM Utilities. As further explained below, an RTO/ISO that receives 
credit-related information from another RTO/ISO is required to treat 
that information confidential as it would any other credit-related 
information. Under the final rule, shared credit-related information 
will be safeguarded by the receiving RTO/ISO in accordance with its 
OATT. We are not convinced that additional record keeping requirements 
are necessary to protect the credit information of market participants.

D. Confidentiality

1. NOPR
    62. The Commission proposed to require that an RTO/ISO that 
receives credit-related information from another RTO/ISO keep that 
information confidential as it would any other credit-related 
information received directly from one of its own market 
participants.\76\ The Commission preliminarily found that this would 
ensure that all credit-related information would continue to be 
safeguarded by RTOs/ISOs in accordance with the receiving RTO's/ISO's 
OATT.\77\ The Commission sought comment on any additional restrictions 
that it should impose on RTOs/ISOs in their management and use of 
credit-related information.\78\
---------------------------------------------------------------------------

    \76\ NOPR, 180 FERC ] 61,048 P 29.
    \77\ Id. P 29.
    \78\ Id. P 30.
---------------------------------------------------------------------------

2. Comments
    63. IRC and Dominion each supports the NOPR proposal to require 
that RTOs/ISOs that receive credit-related information protect its 
confidentiality under existing OATT confidentiality protections in the 
same manner as they would any other information received directly from 
their own market participants.\79\
---------------------------------------------------------------------------

    \79\ IRC Initial Comments at 3.
---------------------------------------------------------------------------

    64. Several parties argue that existing OATT confidentiality 
provisions are not sufficiently uniform to provide consistent 
protection to market participants' credit-related information. 
Indicated PJM Utilities and EEI each argue that the Commission 
therefore should adopt a uniform confidentiality provision applicable 
to market participants' credit-related information across the organized 
wholesale electric markets.\80\ NEPOOL requests that the Commission 
clarify that a market participant may enforce its confidentiality 
rights as against the RTO/ISO that receives its credit-related 
information even where that market participant is not a signatory to 
the receiving RTO's/ISO's OATT.\81\
---------------------------------------------------------------------------

    \80\ Indicated PJM Utilities Comments at 13; EEI Comments at 4.
    \81\ NEPOOL Comments at 7-8.
---------------------------------------------------------------------------

    65. Indicated PJM Utilities provides sample confidentiality 
provisions and argues that differences among these provisions and among 
the kinds of credit-related information collected by different RTOs/
ISOs increase the risk of unintended disclosure, particularly given the 
involvement in credit reviews by third party contractors retained by 
CAISO, PJM, and SPP.\82\ Indicated PJM Utilities further argues that 
there is a risk of disclosure of confidential information to a market 
participant's competitor in ISO-NE, where the RTO/ISO may in some 
circumstances provide credit-related information to ISO-NE's 
Participants Committee, which is comprised of other market 
participants.\83\
---------------------------------------------------------------------------

    \82\ Indicated PJM Utilities Comments at 5-13.
    \83\ Id. at 13.
---------------------------------------------------------------------------

    66. Finally, EPSA requests that the Commission confirm that credit-
related information shared by an RTO/ISO with another RTO/ISO will not 
be subject to

[[Page 40704]]

disclosure under the Freedom of Information Act (FOIA).\84\
---------------------------------------------------------------------------

    \84\ EPSA Comments at 7.
---------------------------------------------------------------------------

3. Commission Determination
    67. We adopt the regulations proposed in the NOPR to require that 
an RTO/ISO that receives credit-related information from another RTO/
ISO treat that information as it would any other credit-related 
information received directly from one of its own market participants. 
We find that this requirement will ensure that all credit-related 
information shared under this final rule will be safeguarded by the 
receiving RTO/ISO in accordance with its OATT.
    68. We acknowledge that allowing RTOs/ISOs to share market 
participants' credit-related information among themselves may pose some 
incremental risk that such information will be disclosed outside of the 
RTOs/ISOs. We note, however, that the RTOs/ISOs already are stewards of 
large amounts of credit-related information, and they protect that 
information in accordance with confidentiality policies included in 
their OATTs.\85\ Further, we find that this incremental risk of 
disclosure is outweighed by the transparency and credit risk management 
benefits that credit-related information sharing will provide.
---------------------------------------------------------------------------

    \85\ 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'').
---------------------------------------------------------------------------

    69. The Commission confronted a similar issue in Order No. 787, in 
which it permitted the disclosure of non-public information between 
electric transmission operators and interstate natural gas pipelines. 
There, the Commission acknowledged that the disclosure of non-public 
information poses some incremental risk but noted that these risks are 
outweighed by the benefits of additional transparency and information 
exchange:

    While any exchange of non-public information may pose some 
disclosure risks, we find that, on balance, the regulations adopted 
here . . . appropriately balance the significant benefits to be 
gained by robust information exchange among interdependent 
transmission operators against the potential risks from disclosure 
of non-public information.\86\
---------------------------------------------------------------------------

    \86\ Commc'n of Operational Info. Between Nat. Gas Pipelines & 
Elec. Transmission Operators, Order No. 787, 78 FR 70164 (Nov. 22, 
2013) 145 FERC ] 61,134, at P 32 (2013), on reh'g, Order No. 787-A, 
147 FERC ] 61,228 (2014).

    Similarly, this final rule facilitates the RTOs'/ISOs' ability to 
accurately assess market participants' credit exposure and strengthen 
the tools available to RTOs/ISOs in fulfilling their obligations to 
minimize credit default risk and mitigate the effects of credit 
defaults that do occur.
    70. We acknowledge that there are differences between the kinds of 
credit-related information that RTOs/ISOs collect, as EEI and Indicated 
PJM Utilities each argues, as well as differences between the kinds of 
confidentiality protections afforded market participants under the 
different RTO/ISO OATTs. We acknowledge that under this final rule 
credit-related information in some circumstances will be protected from 
disclosure by the receiving RTO's/ISO's confidentiality protections 
rather than the sending RTO/ISO's confidentiality protections. We find 
that any such incremental risk is minimal and is outweighed by the 
benefit of credit-related information sharing permitted in this final 
rule. Therefore, we decline to require RTOs/ISOs to adopt uniform 
confidentiality provisions governing the sharing of market 
participants' credit-related information.\87\ In addition, the 
Commission has already concluded that any such confidentiality 
provision in an RTO/ISO OATT is just and reasonable.
---------------------------------------------------------------------------

    \87\ Further, we note that RTOs/ISOs cannot evade their 
responsibility to safeguard credit-related information by hiring 
third party contractors to help conduct credit reviews.
---------------------------------------------------------------------------

    71. In response to NEPOOL's request for clarification, we find that 
an RTO/ISO must protect credit-related information received from 
another RTO/ISO under this final rule in accordance with 
confidentiality protections in the receiving RTO's/ISO's OATT. In 
accordance with this requirement, the entity whose information was 
shared may turn to dispute resolution mechanisms available under the 
receiving RTO's/ISO's OATT or submit a complaint under FPA section 206 
notwithstanding the fact that such entity may not be a market 
participant under the receiving RTO's/ISO's OATT.
    72. Finally, EPSA's request that we clarify that credit-related 
information that is shared among RTOs/ISOs would not be subject to 
requests under FOIA sent to the receiving RTO/ISO is misplaced. FOIA 
governs information held by federal agencies, and the Commission will 
not have custody or control of credit-related information that is 
shared. Credit-related information in the custody or control of RTOs/
ISOs would not be subject to FOIA. We expect each RTO/ISO to respond to 
other types of information requests in accordance with its OATT, and 
that shared credit-related information will be treated just as would 
any other credit-related information held by the RTO/ISO. We decline to 
create a different standard for handling credit-related information 
received from another RTO/ISO differently than how the receiving RTO/
ISO would treat credit-related information received from its own market 
participants.

E. Prescriptive Approach

1. NOPR
    73. The Commission acknowledged that there could be benefits to 
adopting requirements that RTOs/ISOs share credit-related information 
with other RTOs/ISOs, such as establishing a baseline sharing of 
credit-related information prior to a credit event that could reduce 
the financial losses to non-defaulting market participants during that 
event.\88\ The Commission also acknowledged that a prescriptive 
approach could impose burdens on RTOs/ISOs, such as raising costs or 
straining RTO/ISO resources.\89\ The Commission therefore sought 
comment on whether it should modify the NOPR proposal to require that 
RTOs/ISOs share credit-related information on a routine basis, in 
certain circumstances, or upon request by another RTO/ISO.\90\
---------------------------------------------------------------------------

    \88\ NOPR, 180 FERC ] 61,048 P 33.
    \89\ Id.
    \90\ Id.
---------------------------------------------------------------------------

2. Comments
    74. SPP MMU argues that the Commission should require an RTO/ISO to 
provide credit-related information to another RTO/ISO upon the 
reasonable request of the receiving RTO/ISO.\91\ Dominion contends 
instead that the Commission should require RTOs/ISOs to share certain 
credit-related information on a routine basis, or should condition an 
RTO's/ISO's ability to receive credit-related information on its 
willingness to share such information with other RTOs/ISOs.\92\
---------------------------------------------------------------------------

    \91\ SPP MMU Comments at 4.
    \92\ Dominion Comments at 6-7.
---------------------------------------------------------------------------

    75. IRC disagrees, arguing that RTOs/ISOs should be permitted 
rather than required to share credit-related information. IRC contends 
that defining the circumstances in which an RTO/ISO would be required 
to share credit-related information would burden RTO/ISO credit 
departments.\93\ IRC further argues that a prescriptive approach would 
introduce the specter of potential rule violations, which would 
distract RTO/ISO credit departments from their efforts to identify and 
manage credit risks and to protect non-defaulting

[[Page 40705]]

market participants from the consequences of credit defaults.\94\
---------------------------------------------------------------------------

    \93\ IRC Initial Comments at 4-5.
    \94\ Id.
---------------------------------------------------------------------------

3. Commission Determination
    76. We decline to adopt a prescriptive approach that would dictate 
circumstances in which RTOs/ISOs must share credit-related information 
with other RTOs/ISOs. As noted above, discretion regarding credit-
related information sharing ensures that RTOs/ISOs gain additional 
visibility into their market participants' financial condition and are 
able 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.
    77. By contrast, we find that a prescriptive approach to sharing 
credit-related information would unnecessarily constrain the RTOs'/
ISOs' discretion, limiting the effectiveness of this final rule. A 
discretionary rather than a prescriptive approach will allow RTOs/ISOs 
to determine what information may help another RTO/ISO carry out its 
credit risk management responsibilities and to share such information 
in a timely manner to limit negative credit events without the fear of 
running afoul of their tariffs or market participants when unique 
circumstances arise.
    78. Although we do not adopt a prescriptive approach, we reiterate 
our expectation that RTOs/ISOs will use reasonable efforts to respond 
expeditiously to reasonable requests for credit-related information 
from other RTOs/ISOs. We believe the record in this proceeding 
demonstrates that RTOs/ISOs want to share credit-related information 
with one another for the purposes of credit risk management and 
mitigation.

F. Non-Jurisdictional Markets

1. NOPR
    79. The Commission acknowledged that market participants in 
organized wholesale electric markets also transact in electric markets 
that are not Commission-jurisdictional, such as ERCOT, AESO, and IESO, 
as well as in commodities and derivatives markets subject to the 
jurisdiction of other regulators.\95\ The Commission did not propose to 
require the adoption of tariff provisions that would allow RTOs/ISOs to 
share credit-related information with these other market operators 
because of 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.\96\
---------------------------------------------------------------------------

    \95\ NOPR, 180 FERC ] 61,048 P 35.
    \96\ Id. P 36.
---------------------------------------------------------------------------

    80. The Commission sought comment on possible frameworks that would 
account for jurisdictional limitations while still enabling RTOs/ISOs 
to share and receive credit-related information with and from other 
non-jurisdictional market operators.\97\
---------------------------------------------------------------------------

    \97\ Id.
---------------------------------------------------------------------------

2. Comments
    81. EPSA and Dominion agree that the Commission should not permit 
RTOs/ISOs to share credit-related information with non-jurisdictional 
market operators in the absence of an ability to take remedial action 
to protect market participants' confidential credit-related 
information.\98\
---------------------------------------------------------------------------

    \98\ EPSA Comments at 7-8; Dominion Comments at 8-9.
---------------------------------------------------------------------------

    82. IRC requests that the Commission require RTOs/ISOs to amend 
their OATTs to allow credit-related information sharing not only with 
each other but also with market operators ERCOT, AESO, and IESO. IRC 
argues that excluding these market operators, which are not Commission-
jurisdictional for these purposes, will limit awareness of credit risks 
that could impact RTOs/ISOs, and points to the example of the 2021 
winter energy crisis in the ERCOT market.\99\ IRC contends that sharing 
credit-related information with these market operators could be 
achieved through reciprocity arrangements, including a Memorandum of 
Understanding among the RTOs/ISOs, ERCOT, AESO, and IESO that would 
address the relevant mechanics and allow any signatory to cease credit-
related information sharing in the event it has concerns with another 
signatory's potential or actual disclosure of confidential credit-
related information.\100\ IRC acknowledges that the Commission would 
lack direct enforcement authority over ERCOT, AESO, or IESO, but argues 
that these market operators would be incented sufficiently to protect 
market participants' confidential credit-related information by the 
possibility that one or more RTOs/ISOs would unilaterally cease sharing 
that information with them.\101\
---------------------------------------------------------------------------

    \99\ IRC Initial Comments at 5.
    \100\ Id. at 5-6.
    \101\ Id. at 6.
---------------------------------------------------------------------------

3. Commission Determination
    83. We decline to adopt IRC's request to require RTOs/ISOs to 
propose OATT revisions that would also allow RTOs/ISOs to share credit-
related information with ERCOT, AESO, and IESO. We acknowledge IRC's 
concerns, and that RTOs/ISOs could benefit from credit-related 
information provided by ERCOT, AESO, and IESO. Nevertheless, we must 
balance IRC's request and the effectiveness of credit-related 
information sharing against the interest of market participants in 
protecting confidential credit-related information. ERCOT, AESO, and 
IESO are not subject to the Commission's jurisdiction in this area and 
we cannot direct them to share, or dictate how to handle, credit-
related information under this final rule. In addition, we are not 
convinced by IRC's suggestion that sharing credit-related information 
with these non-jurisdictional entities would incent ERCOT, AESO, and 
IESO to protect market participants' confidential credit-related 
information. Although this general incentive may exist, these entities 
do not have confidentiality provisions that the Commission has 
determined to be just and reasonable. For these reasons, this final 
rule only permits RTOs/ISOs to share credit-related information with 
other RTOs/ISOs.

G. Miscellaneous

1. Comments
    84. ETI and SPP MMU each request that the Commission consider 
consolidating certain RTO/ISO credit functions in a central credit 
entity. ETI argues that the Commission should consider requiring such 
an entity to monitor credit activity across the RTOs/ISOs, and proposes 
that it would be an independent third party entity overseen by the 
Commission and governed by the RTOs/ISOs. ETI contends that this entity 
would analyze the creditworthiness of any RTO/ISO market participant 
and produce a credit report for that RTO/ISO, saving the RTOs/ISOs and 
their market participants both resources and time.\102\ SPP MMU points 
to the Commission's routine collection of data from RTOs/ISOs under 
Order No. 760, and argues that a similar approach here could eliminate 
ambiguity it claims arise from the discretion we afford RTOs/ISOs.\103\
---------------------------------------------------------------------------

    \102\ ETI Comments at 7-8.
    \103\ SPP MMU Comments at 4-5.
---------------------------------------------------------------------------

2. Commission Determination
    85. We decline ETI's and SPP MMU's requests for the consolidation 
of certain RTO/ISO credit functions in a central credit entity as 
outside the scope of this proceeding, which relates to the sharing of 
credit-related information among RTOs/ISOs.

[[Page 40706]]

H. Implementation

1. NOPR
    86. The Commission proposed that it would require each RTO/ISO to 
submit a compliance filing consistent with a final rule in this 
proceeding in which the RTO/ISO would propose tariff revisions to 
permit credit-related information sharing.\104\ The Commission sought 
comment on whether 60 days after the effective date of any final rule 
would be sufficient time to develop this new tariff language.
---------------------------------------------------------------------------

    \104\ NOPR, 180 FERC ] 61,048 P 31.
---------------------------------------------------------------------------

2. Comments
    87. NEPOOL requests that the Commission allow up to 120 days for 
RTOs/ISOs to develop revisions to their OATTs if requested by an RTO/
ISO. NEPOOL explains that this additional time would provide an 
opportunity for market participants to understand, discuss, and vote on 
any changes to ISO-NE financial assurance policies required to 
implement a potential final rule.\105\
---------------------------------------------------------------------------

    \105\ NEPOOL Comments at 9-10.
---------------------------------------------------------------------------

3. Commission Determination
    88. We adopt the NOPR proposal requiring RTOs/ISOs each to submit a 
compliance filing consistent with the regulations adopted herein and 
consistent with this final rule no later than 60 days after the 
effective date hereof.
    89. As it pertains to NEPOOL's request, we clarify that RTOs/ISOs 
may ask to extend the 60-day deadline, as necessary, to ensure that 
RTOs/ISOs and their stakeholders have the time to work together to 
review the RTO/ISO OATT and other governing documents and discuss 
revisions thereto.

V. Information Collection Statement

    90. 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.
    91. This final rulemaking will amend the Commission's regulations 
pursuant to section 206 of the FPA, to permit RTOs/ISOs to share among 
themselves credit-related information about market participants in 
organized wholesale electric markets. To accomplish this, the 
Commission will require RTOs/ISOs to adopt tariff revisions reflecting 
this reform. Such filings would be made under Part 35 of the 
Commission's regulations. Furthermore, in relation to this new FERC 
collection (FERC 1005), filers will be required to submit a one-time 
compliance filing showing that they have updated their tariff 
provisions.
    92. Title: FERC 1005: Credit-Related Information Sharing in 
Organized Wholesale Electric Markets.
    93. Action: Collection of information in accordance with RM22-13-
000.
    94. OMB Control No.: 1902-[0325].
    95. Respondents for this Rulemaking: RTOs/ISOs.
    96. Frequency of Information Collection: One-time compliance filing 
and ongoing information sharing (the latter information would not be 
submitted to the Commission).
    97. 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.
    98. 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.
    99. The Commission's estimate contains two 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.\106\
---------------------------------------------------------------------------

    \106\ 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.
---------------------------------------------------------------------------

    100. The Commission estimates burden \107\ and cost \108\ as 
follows:
---------------------------------------------------------------------------

    \107\ ``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.
    \108\ 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 2022 average cost of $188,922/year (for wages plus benefits, 
for one full-time employee), $91.00/hour is used.
    \109\ 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. The one-time 
cost associated with the compliance filing will be incurred in the 
first year, but we will annualize the burden and cost over three 
years to account for OMB's three year approval period. The 
annualized burden and cost of the one-time filing is 50 hours (150/3 
= 50) and $4,350 (13,050/3 = 4,350).
    \110\ 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.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                A.                       B.              C.              D.                    E.                         F.                    G.
Collection                              Number of          Annual           Total  Average burden...........  Total annual hr...........        Cost per
                                      respondents       number of       number of  hrs. & cost per..........  burdens & total...........      respondent
                                                    responses per       responses  response.................  annual cost...............     (column F /
                                                       respondent     (column B x                             (column D x...............       column B)
                                                                        column C)                             column E).................
--------------------------------------------------------------------------------------------------------------------------------------------------------
RTO/ISOs (one-time compliance                   6               1               6  25 hrs.; $2,175..........  150 hrs.; $13,050.........          $2,175
 filing) \109\.
RTO/ISOs (ongoing information                   6               2              12  4 hrs.; $348.............  48 hrs.; $4,176...........             696
 sharing) \110\.
                                  ----------------------------------------------------------------------------------------------------------------------
    Totals.......................  ..............  ..............  ..............  .........................  198 hrs.; $17,226.........  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 40707]]

VI. Environmental Analysis

    101. 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.\111\ We 
conclude that neither an Environmental Assessment nor an Environmental 
Impact Statement is required for this final rule under Sec.  
380.4(a)(15) of the Commission's regulations, which provides a 
categorical exemption for approvals 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.\112\
---------------------------------------------------------------------------

    \111\ 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).
    \112\ 18 CFR 380.4(a)(15).
---------------------------------------------------------------------------

VII. Regulatory Flexibility Act

    102. The Regulatory Flexibility Act of 1980 (RFA) \113\ generally 
requires a description and analysis of 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,\114\ RTOs/
ISOs fall under the category of Electric Bulk Power Transmission and 
Control (NAICS code 221121) with a size threshold of 950 employees 
(including the entity and its associates).\115\
---------------------------------------------------------------------------

    \113\ 5 U.S.C. 601-612.
    \114\ 13 CFR 121.201.
    \115\ 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 
SBA's 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).
---------------------------------------------------------------------------

    103. The RTOs/ISOs (i.e., SPP, MISO, PJM, ISO-NE, NYISO, and CAISO) 
each employ more than 950 employees and are not considered small.
    104. 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.'' \116\ The Commission does not consider the 
estimated cost to be a significant economic impact, nor does it effect 
a significant amount of small entities. As a result, we certify that 
the reforms in this final rule would not have a significant economic 
impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \116\ 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.
---------------------------------------------------------------------------

VIII. Document Availability

    105. 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).
    106. 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, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    107. User assistance is available for eLibrary and the Commission's 
website during normal business hours from FERC 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].

IX. Effective Date and Congressional Notification

    108. These regulations are effective August 21, 2023. The 
Commission has determined, with the concurrence of the Administrator of 
the Office of Information and Regulatory Affairs of OMB, that this rule 
is not a ``major rule'' as defined in section 351 of the Small Business 
Regulatory Enforcement Fairness Act of 1996.

List of Subjects in 18 CFR Part 35

    Electric power rates, Electric utilities, Reporting and 
recordkeeping requirements By the Commission.

    Issued: June 15, 2023.
Debbie-Anne A. Reese,
Deputy Secretary.

    In consideration of the foregoing, the Commission amends 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)(1) Subject to paragraph (h)(2) of this section:
    (i) Permit organized wholesale electric markets to share market 
participant credit-related information with, and receive market 
participant credit-related information from, other organized wholesale 
electric markets for the purpose of credit risk management and 
mitigation; and
    (ii) Permit the receiving organized wholesale electric market to 
use 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.
    (2) Require the receiving organized wholesale electric market to 
treat credit-related information an organized wholesale electric market 
receives from another organized wholesale electric market as 
confidential under the terms set forth in the tariff or other governing 
document of the receiving organized wholesale electric market.

[FR Doc. 2023-13287 Filed 6-21-23; 8:45 am]
BILLING CODE 6717-01-P

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