

[Federal Register: February 27, 2006 (Volume 71, Number 38)]
[Proposed Rules]               
[Page 9741-9744]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27fe06-17]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 35 and 284

[Docket No. RM06-14-000]

 
Revisions to Record Retention Requirements for Unbundled Sales 
Service, Persons Holding Blanket Marketing Certificates, and Public 
Utility Market-Based Rate Authorization Holders

Issued February 16, 2006.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
proposing to amend its regulations regarding the blanket certificates 
for unbundled natural gas sales services held by interstate natural gas 
pipelines, the blanket marketing certificates held by persons making 
sales for resale of natural gas at negotiated rates in interstate 
commerce and the market-based rate authorizations held by certain 
sellers of electricity and related products. Specifically, the 
Commission is proposing to extend the record retention requirement in 
the sections of the Commission's regulations that apply to such sellers 
from three to five years.

DATES: Comments are due March 29, 2006.

ADDRESSES: You may submit comments, identified by docket number, by any 
of the following methods:
     Agency Web site: http://www.ferc.gov. Follow the 

instructions for submitting comments electronically via the eFiling 
link on the Commission's Web site at http://www.ferc.gov.

     Mail: Commenters unable to file comments electronically 
must send an original and 14 copies of their comments to: Federal 
Energy Regulatory Commission, Secretary of the Commission, 888 First 
Street, NE., Washington, DC 20426. Refer to the Comment Procedures 
section of the preamble for additional information on how to file 
comments.

FOR FURTHER INFORMATION CONTACT:

Frank Karabetsos, Office of General Counsel, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426. (202) 502-
8133. Frank.Karabetsos@ferc.gov.
Mark Higgins, Office of Market Oversight and Investigations, Federal 
Energy Regulatory Commission, 888 First Street, NE., Washington, DC 
20426. (202) 502-8273. Mark.Higgins@ferc.gov.

SUPPLEMENTARY INFORMATION:

Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead Brownell, 
and Suedeen G. Kelly

    1. The Federal Energy Regulatory Commission is proposing to revise 
Sec. Sec.  284.288(b) and 284.403(b) of its codes of conduct 
regulations,\1\ as promulgated pursuant to Order No. 644.\2\ Sections 
284.288(b) and 284.403(b) of the codes of conduct regulations require 
sellers to maintain certain records for a period of three years to 
reconstruct prices charged for natural gas. Similarly, the Commission 
is proposing to revise new Sec.  35.37(d) of the Commission's 
regulations. Section 35.37(d) is the codification of former Market 
Behavior Rule 5.\3\ Section 35.37(d) requires that sellers retain for a 
minimum three-year period all data and information upon which they 
billed the prices charged for electricity and related products in sales 
made under their market-based rate tariffs and authorizations or in 
transactions the prices of which were reported to price index 
publishers.\4\ Subsequent to the issuance of Order No. 644 and the 
Market Behavior Rules Order, Congress provided the Commission with 
specific anti-manipulation authority in the Energy

[[Page 9742]]

Policy Act of 2005 (EPAct 2005).\5\ To implement this new authority, 
the Commission recently issued Order No. 670, where we said we would 
adhere to a five-year statute of limitations where we seek civil 
penalties for violations of the new anti-manipulation rules.\6\ This 
NOPR proposes to amend these regulations to extend the record retention 
requirement of Sec. Sec.  284.288(b), 284.403(b) and 35.37(d) of the 
Commission's regulations from three to five years, in order to be 
consistent with the recently issued Order No. 670.
---------------------------------------------------------------------------

    \1\ 18 CFR 284.288(b) and 284.403(b) (2005). In a Final Rule in 
Docket No. RM06-5-000 issued simultaneously with this notice of 
proposed rulemaking (NOPR), the Commission is redesignating sections 
284.288(c) and 284.403(c) of the Commission's regulations as 
sections 284.288(b) and 284.403(b), respectively. Unless otherwise 
specified, this NOPR will refer to these sections on record 
retention under their new designations, sections 284.288(b) and 
284.403(b).
    \2\ Amendments to Blanket Sales Certificates, 105 FERC ] 61,217 
(2003), reh'g denied 107 FERC ] 61,174; 68 FR 66323 (Nov. 26, 2003); 
18 CFR 284.288 and 284.403 (2003) (Order No. 644). Order No. 644 is 
currently on appeal. See Cinergy Marketing & Trading, L.P. v. FERC, 
No. 04-1168 et al. (DC Cir. April 28, 2004).
    \3\ Concurrently herewith, the Commission is codifying certain 
Market Behavior Rules, including Market Behavior Rule 5, which are 
currently tariff conditions for market-based rate sellers of 
electricity and related products. Conditions for Public Utility 
Market-Based Rate Authorization Holders, Docket No. RM06-13-000 
(February 16, 2006) (Market Behavior Rules Codification Order). The 
Commission had promulgated Market Behavior Rule 5 along with the 
other Market Behavior Rules in the Market Behavior Rules Order. 
Investigation of Terms and Conditions of Public Utility Market-Based 
Rate Authorizations, ``Order Amending Market-Based Rate Tariffs and 
Authorizations,'' 105 FERC ] 61,218 (2003), reh'g denied, 107 FERC ] 
61,175 (2004) (Market Behavior Rules Order). The Market Behavior 
Rules are currently on appeal. Cinergy Marketing & Trading, L.P. v. 
FERC, Nos. 04-1168 et al. (DC Cir. April 28, 2004). Unless otherwise 
specified, this NOPR will refer to this rule on record retention 
under its new designation, section 35.37(d).
    \4\ 18 CFR 35.37(d).
    \5\ Energy Policy Act of 2005, Public Law No. 109-58, 119 Stat. 
594 (2005). Congress prohibited the use or employment of ``any 
manipulative or deceptive device or contrivance'' in connection with 
the purchase or sale of natural gas or electric energy or 
transportation or transmission services subject to the jurisdiction 
of the Commission. Congress directed the Commission to give these 
terms the same meaning as under the Securities Exchange Act of 1934, 
15 U.S.C. 78j(b) (2000).
    \6\ Prohibition of Energy Market Manipulation, Order No. 670, 71 
FR 4244 (Jan. 26, 2006), FERC Stats. & Regs. ] 31,202, 114 FERC ] 
61,047 (Jan. 19, 2006) (Order No. 670).
---------------------------------------------------------------------------

I. Background

    2. On November 17, 2003, we issued Order No. 644, amending blanket 
certificates for unbundled natural gas sales services held by 
interstate natural gas pipelines and blanket marketing certificates 
held by persons making sales for resale of natural gas at negotiated 
rates in interstate commerce. This rule requires that pipelines that 
provide unbundled natural gas sales service and all sellers of natural 
gas for resale adhere to a code of conduct with respect to certain 
natural gas sales. Sections 284.288(b) and 284.403(b) of the codes of 
conduct regulations require that sellers retain for a minimum three-
year period all data and information upon which they billed the prices 
charged for natural gas sales made under Sec. Sec.  284.284 or 284.402, 
or in transactions the prices of which were reported to price index 
publishers.
    3. At the same time that Order No. 644 was adopted for pipelines 
that provide unbundled natural gas sales service and holders of blanket 
certificate authority that make sales for resale of natural gas, the 
Commission also issued the Market Behavior Rules Order to require 
wholesale sellers of electricity at market-based rates to adhere to 
certain behavioral rules when making sales of electricity. The record 
retention rule, now Sec.  35.37(d) of the Commission's regulations, 
requires that sellers retain for a minimum three-year period all data 
and information upon which they billed the prices charged for 
electricity and related products in sales made under their market-based 
rate tariffs and authorizations or in transactions the prices of which 
were reported to price index publishers.
    4. In a Notice of Proposed Rulemaking dated November 21, 2005,\7\ 
the Commission proposed to rescind Sec. Sec.  284.288 or 284.403 of the 
Commission's regulations once we issued final regulations implementing 
the anti-manipulation provisions of EPAct 2005 and have had the 
opportunity to incorporate the non-duplicative aspects of Sec. Sec.  
284.288 or 284.403 of the Commission's regulations into other rules of 
general applicability. At the same time, we issued an order in Docket 
No. EL06-16-000 proposing similar changes to the behavior rules 
applicable to wholesale sellers of electricity at market-based 
rates.\8\ On January 19, 2006, the Commission issued Order No. 670, 
adopting regulations implementing the EPAct 2005 anti-manipulation 
provisions.\9\ In Order No. 670, the Commission stated that it will 
adhere to a five-year statute of limitations where we seek civil 
penalties for violations of the new anti-manipulation rules.\10\
---------------------------------------------------------------------------

    \7\ Amendments to Codes of Conduct for Unbundled Sales Service 
and for Persons Holding Blanket Marketing Certificates, 113 FERC ] 
61,189 (2005).
    \8\ See Investigation of Terms and Conditions of Public Utility 
Market-Based Rate Authorizations, ``Order Proposing Revisions to 
Market-Based Rate Tariffs and Authorizations,'' 113 FERC ] 61,190 
(2005).
    \9\ 18 CFR 1c.1 and 1c.2, 71 FR 4,244 (2006).
    \10\ Order No. 670, 114 FERC ] 61,047 at P 63.
---------------------------------------------------------------------------

    5. In a final rule and order issued simultaneously with this NOPR, 
we decided to rescind Sec. Sec.  284.288(a), (d) and (e) and 
284.403(a), (d) and (e) of the Commission's regulations,\11\ and to 
rescind Market Behavior Rules 2 and 6.\12\ The Commission stated that, 
although Order No. 670 made it unnecessary to retain Sec. Sec.  
284.288(a), (d) and (e) and 284.403(a), (d) and (e) of the Commission's 
regulations or to retain Market Behavior Rules 2 and 6, there is 
benefit to retaining Sec. Sec.  284.288(b)-(c) and 284.403(b)-(c) 
(redesigated as Sec. Sec.  284.288(a)-(b) and 284.403(a)-(b)) of the 
Commission's regulations, and to retaining Market Behavior Rules 1, 3, 
4, and 5 (new Sec. Sec.  35.37(a)-(d) of the Commission's regulations).
---------------------------------------------------------------------------

    \11\ Amendments to Codes of Conduct for Unbundled Sales Service 
and for Persons Holding Blanket Marketing Certificates, Docket No. 
RM06-5-000 (February 16, 2006).
    \12\ Order Revising Market-Based Rate Tariffs and 
Authorizations, Docket No. EL06-16-000 (February 16, 2006).
---------------------------------------------------------------------------

II. Discussion

    6. Sections 284.288(b), 284.403(b) and 35.37(d) of the Commission's 
regulations require sellers to maintain certain records for a period of 
three years to reconstruct prices charged for natural gas and 
electricity, respectively. This is different from the record retention 
requirements in parts 125 and 225 of our regulations, which largely are 
related to cost-of-service rate requirements.\13\ Given the importance 
of records related to any investigation of possible wrongdoing and 
related to assuring compliance, and in order to avoid confusion, the 
Commission decided to retain Sec. Sec.  284.288(b), 284.403(b) and 
35.37(d) of the Commission's regulations.
---------------------------------------------------------------------------

    \13\ 18 CFR parts 125, 225 (2005).
---------------------------------------------------------------------------

    7. In this NOPR, we propose increasing the record retention 
requirement from three years to five years. In Order No. 670, we did 
not adopt a specific statute of limitations on complaints or 
enforcement actions that may be brought pursuant to the Commission's 
anti-manipulation authority.\14\ However, we did note that, when a 
statutory provision under which civil penalties may be imposed lacks 
its own statute of limitations (as is the case with respect to the 
Commission's anti-manipulation authority), a five-year limitation 
period applies.\15\ It would be inconsistent to allow complaints or 
enforcement actions seeking civil penalties for alleged violations to 
our anti-manipulation authority to be commenced more than three years 
after the transactions giving rise to such actions were carried out, 
but not to require that the data and information related to such 
transactions be retained for at least that long. Accordingly, we 
propose, and seek comment on, an increase of the record retention 
requirement to five years.
---------------------------------------------------------------------------

    \14\ Order No. 670, 114 FERC ] 61,047 at P 62.
    \15\ Id.
---------------------------------------------------------------------------

III. Regulatory Flexibility Act Certification

    8. The Regulatory Flexibility Act of 1980 \16\ generally requires a 
description and analysis of final rules that will have a significant 
economic impact on a substantial number of small entities.\17\

[[Page 9743]]

The Commission is not required to make such analyses if a rule would 
not have such an effect. The proposed rule merely extends an already 
existing record retention requirement from three to five years. 
Therefore, the Commission certifies that this proposed rule, if 
finalized, will not have a significant economic impact on a substantial 
number of small entities.
---------------------------------------------------------------------------

    \16\ 5 U.S.C. 601-612 (2000).
    \17\ 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 which is independently 
owned and operated and which is not dominant in its field of 
operation. 15 U.S.C. 632 (2000). The Small Business Size Standards 
component of the North American Industry Classification System 
defines a small electric utility as one that, including its 
affiliates, is primarily engaged in the generation, transmission, 
and/or distribution of electric energy for sale and whose total 
electric output for the preceding fiscal years did not exceed 4 
million MWh. 13 CFR 121.201 (Section 22, Utilities, North American 
Industry Classification System, NAICS) (2004).
---------------------------------------------------------------------------

IV. Information Collection Statement

    9. As discussed herein, the Commission is proposing to extend the 
existing record retention period of Sec. Sec.  284.288(b), 284.403(b) 
and 35.37(d) of the Commission's regulations from three years to five 
years consistent with the statute of limitations that applies to 
actions seeking civil penalties for violations of the Commission's new 
anti-manipulation rules that could be related to such data and 
information. The increased duration of information retention contained 
in this proposed revised rule has been submitted to the Office of 
Management and Budget (OMB) for review under section 3507(d) of the 
Paperwork Reduction Act of 1995.\18\ OMB's regulations require OMB to 
approve certain information collection requirements imposed by agency 
rule.\19\
---------------------------------------------------------------------------

    \18\ 44 U.S.C. 3507(d).
    \19\ 5 CFR 1320.11.
---------------------------------------------------------------------------

    10. The Commission's regulations, in Sec. Sec.  284.288(b), 
284.403(b) and 35.37(d), specify the existing record retention 
requirements applicable to certain sellers of natural gas and 
electricity. The information provided to the Commission under part 284 
for record retention purposes remains identified as FERC-549. The 
Commission identifies the information provided for under part 35 as 
FERC-516. As discussed above, the Commission proposes to extend the 
records retention requirements in parts 35 and 284 of its regulations 
for an additional two years consistent with Order No. 670.
    11. Comments are solicited on the need for this increased records 
retention period, whether it will have practical utility, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondents' burden, including the use of automated 
information techniques. The burden estimates for complying with this 
proposed rule are as follows:

----------------------------------------------------------------------------------------------------------------
                                                          Number of     Number of    Hours per     Total annual
         Data collection  FERC-516 & FERC-549            respondents    responses     response        hours
----------------------------------------------------------------------------------------------------------------
Records Retention:
    FERC-516.........................................           1,150            1            2             2300
    FERC-549.........................................             222            1            2              444
                                                      ----------------------------------------------------------
        Totals.......................................           1,372            1            2            2,744
----------------------------------------------------------------------------------------------------------------

    Total Annual Hours for Record Retention: Recordkeeping, 2,744 
hours.
    Information Retention Costs: The Commission projects an annualized 
This cost is based on 120 cubic feet (20 four-drawer file cabinets 
transferred off site to a storage facility). The costs include cubic 
feet of storage plus the cost of floor space plus the costs for records 
storage cartons. The Commission is requiring that entities retain 
records for an additional two years. Total costs = $2,584,848. Greater 
savings can be accomplished if documents are stored electronically, 
i.e., one file cabinet (four-drawer) (10,000 pages on average) = 500 
MegaBytes (MByte) = one CD-ROM. The Commission seeks comments on the 
costs to comply with this requirement.
    Title: FERC-549, Gas Pipeline Rates: Natural Gas Policy Act, 
Section 311; FERC-516, Electric Rate Schedule Filings.
    Action: Proposed Collection.
    OMB Control No: 1902-0086 and 1902-0096.
    Respondents: Businesses or other for profit.
    Frequency of Responses: Records of market-based rate transactions 
shall be retained for five years instead of three.
    Necessity of the Information: It would be very difficult (if 
possible at all) for the Commission to monitor and prosecute violations 
of pipeline and blanket certificate sales of natural gas and market-
based rate sales of electricity unless the underlying sales information 
were retained. This data retention requirement is consistent with the 
information and data retention requirements applicable to sellers 
having cost-based rates.\20\ Requiring pipeline and blanket certificate 
sellers of natural gas, and market-based rate sellers of electricity, 
to retain records is also consistent with the Commissions past 
practices as set forth in Sec. Sec.  284.288(b), 284.403(b) and 
35.37(d) of the Commission's regulations, and, although the Commission 
proposes a retention period of five years (as opposed to the existing 
three-year requirement), such longer period is now required to ensure 
the information and data will remain available to support complaints 
and enforcement actions involving civil penalties for violations that 
occurred more than three years earlier.
---------------------------------------------------------------------------

    \20\ See 18 CFR parts 125, 225.
---------------------------------------------------------------------------

    Internal review: The Commission has conducted an internal review of 
the public reporting burden associated with the record retention of 
information and assured itself, by means of internal review, that there 
is specific, objective support for this information burden estimate. 
Moreover, the Commission has reviewed the increased duration of 
information retention proposed herein and has determined that these 
retentions of information are necessary and conform to the Commission's 
plans, as described in this order, for the use of the required 
information.\21\
---------------------------------------------------------------------------

    \21\ See 44 U.S.C. 3506(c) (2000).
---------------------------------------------------------------------------

    12. Interested persons may obtain information on the proposed 
increased duration of information retention by contacting: Federal 
Energy Regulatory Commission, 888 First Street, NE., Washington, DC 
20426, Attention: Michael Miller, Office of the Executive Director, 
Phone: (202) 502-8415, fax: (202) 273-0873, e-mail: 
michael.miller@ferc.gov. Comments on the requirements of the proposed 

rule may also be sent to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Washington, DC 20503, 
Attention: Desk Officer for the Federal Energy Regulatory Commission.
    13. For submitting comments concerning the proposed increased 
duration of information retention and the associated burden 
estimate(s), please send comments to the contact listed above and to 
the Office of Management and Budget, Office of Information and 
Regulatory Affairs, Washington, DC 20503, Attention: Desk Officer for 
the

[[Page 9744]]

Federal Energy Regulatory Commission, phone: (202) 395-7856, fax: (202) 
395-7285.

V. Environmental Statement

    14. 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.\22\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment. Included in the exclusion are rules that are clarifying, 
corrective, or procedural or that do not substantially change the 
effect of the regulations being amended.\23\ The actions proposed 
herein for the increased duration of information retention fall within 
categorical exclusions in the Commission's regulations for rules that 
are procedural in nature. Therefore, an environmental assessment is 
unnecessary and has not been prepared in this proposed rulemaking.
---------------------------------------------------------------------------

    \22\ Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (1987), FERC Stats. & Regs. ]30,783 
(1987).
    \23\ 18 CFR 380.4(a)(2)(ii) (2005).
---------------------------------------------------------------------------

VI. Comment Procedures

    15. The Commission invites interested persons to submit comments on 
the increased duration of record retention from three to five years 
proposed in this notice to be adopted, including any related matters or 
alternative proposals that commenters may wish to discuss. Comments are 
due March 29, 2006. Reply comments are due fifteen days thereafter. 
Comments must refer to Docket No. RM06-14-000 and must include the 
commenter's name, the organization they represent, if applicable, and 
their address in their comments. Comments may be filed either in 
electronic or paper format.
    16. Comments may be filed electronically via the eFiling link on 
the Commission's Web site at http://www.ferc.gov. The Commission 

accepts most standard word processing formats and commenters may attach 
additional files with supporting information in certain other file 
formats. Commenters filing electronically do not need to make a paper 
filing. Commenters that are not able to file comments electronically 
must send an original and 14 copies of their comments to: Federal 
Energy Regulatory Commission, Secretary of the Commission, 888 First 
Street NE., Washington, DC, 20426.
    17. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VII. Document Availability

    18. 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 (http://www.ferc.gov) and 

in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, 
Washington, DC 20426.
    19. From the Commission's Home Page on the Internet, this 
information is available in the eLibrary. The full text of this 
document is available on eLibrary both 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.
    20. User assistance is available for eLibrary and the Commission's 
Web site during normal business hours. For assistance, please contact 
Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at 
FERCOnlineSupport@FERC.gov), or the Public Reference Room at 202-502-

8371, TTY 202-502-8659 (e-mail at public.referenceroom@ferc.gov).

List of Subjects

18 CFR Part 35

    Electric power rates, Electric utilities, Reporting and 
recordkeeping requirements.

18 CFR Part 284

    Continental Shelf, Natural Gas, Reporting and Recordkeeping 
Requirements.

    By direction of the Commission.
Magalie R. Salas,
Secretary.

    In consideration of the foregoing, the Commission proposes to amend 
parts 35 and 284 Chapter I, Title 18, Code of Federal Regulations, as 
follows:

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.


Sec.  35.37  [Amended]

    2. In Sec.  35.37, paragraph (d), the word ``three'' is removed and 
the word ``five'' is added in its place.

PART 284--CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE 
NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES

    1. The authority citation for part 284 continues to read as 
follows:

    Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7532; 
43 U.S.C. 1331-1356.


Sec.  284.288  [Amended]

    2. In Sec.  284.288, paragraph (b), the word ``three'' is removed 
and the word ``five'' is added in its place.


Sec.  284.403  [Amended]

    3. In Sec.  284.403, paragraph (b), the word ``three'' is removed 
and the word ``five'' is added in its place.

[FR Doc. 06-1721 Filed 2-24-06; 8:45 am]

BILLING CODE 6717-01-P
