
[Federal Register Volume 77, Number 249 (Friday, December 28, 2012)]
[Rules and Regulations]
[Pages 76367-76380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-31087]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 366

[Docket No. RM11-12-000; Order No. 771]


Availability of E-Tag Information to Commission Staff

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: In this Final Rule, the Federal Energy Regulatory Commission 
(the Commission) is amending its regulations, pursuant to sections 222 
and 307(a) of the Federal Power Act (FPA), to grant Commission access, 
on a non-public and ongoing basis, to the complete electronic tags (e-
Tags) used to schedule the transmission of electric power interchange 
transactions in wholesale markets. This Final Rule will require e-Tag 
Authors (through their Agent Service) and Balancing Authorities 
(through their Authority Service) to take appropriate steps to ensure 
Commission access to the e-Tags covered by this Final Rule by 
designating the Commission as an addressee on the e-Tags. After the 
Commission is designated as an addressee, the Commission will access 
the e-Tags by contracting with a commercial vendor. The commercial 
vendor will provide data management services and receive e-Tags 
addressed to the Commission. The information made available under this 
Final Rule will bolster the Commission's market surveillance and 
analysis efforts by helping the Commission to detect and prevent market 
manipulation and anti-competitive behavior. This information will also 
help the Commission monitor the efficiency of markets and better inform 
Commission policies and decision-making, thereby helping to ensure just 
and reasonable rates. In addition, this Final Rule will require that e-
Tag information be made available to regional transmission 
organizations and independent system operators and their Market 
Monitoring Units, upon request to e-Tag Authors and Authority Services, 
subject to appropriate confidentiality restrictions.

DATES: Effective Date: This Final Rule will become effective February 
26, 2013.

FOR FURTHER INFORMATION CONTACT: 

Maria Vouras (Technical Information), Office of Enforcement, Federal 
Energy Regulatory Commission, 888 First Street NE., Washington, DC 
20426, Telephone: (202) 502-8062, Email: maria.vouras@ferc.gov.
William Sauer (Technical Information), Office of Energy Policy and 
Innovation, Federal Energy Regulatory Commission, 888 First Street NE., 
Washington, DC 20426, Telephone: (202) 502-6639, Email: 
william.sauer@ferc.gov.
Gary D. Cohen (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE., Washington, 
DC 20426, Telephone: (202) 502-8321, Email: gary.cohen@ferc.gov.

SUPPLEMENTARY INFORMATION: 

Order No. 771

Final Rule

Table of Contents

 
                                                               Paragraph
                                                                  No.
 
I. Background...............................................           3
II. Discussion..............................................          10
    A. Legal Authority to Require E-Tag Access..............          10
        1. E-Tag NOPR.......................................          10
        2. Comments.........................................          11
        3. Commission Determination.........................          14
    B. Need for Commission Access to E-Tag Information......          22
        1. E-Tag NOPR.......................................          22
        2. Comments.........................................          23
        3. Commission Determination.........................          28
    C. Implementing the Commission's E-Tag Access...........          34
        1. E-Tag NOPR.......................................          34
        2. Comments.........................................          35
        3. Commission Determination.........................          40
    D. Providing E-Tag Access to MMUs, RTOs and ISOs........          43
        1. E-Tag NOPR.......................................          43
        2. Comments.........................................          44
        3. Commission Determination.........................          53
    E. Confidentiality of Data..............................          56
        1. E-Tag NOPR.......................................          56
        2. Comments.........................................          57
        3. Commission Determination.........................          59
III. Information Collection Statement.......................          61
IV. Regulatory Flexibility Act..............................          69
V. Document Availability....................................          71
VI. Effective Date and Congressional Notification...........          74
 

Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, 
John R. Norris, Cheryl A. LaFleur, and Tony T. Clark. Issued 
December 20, 2012.

    1. In this Final Rule, the Federal Energy Regulatory Commission 
(Commission) is amending its regulations, pursuant to sections 222 and 
307(a) of the Federal Power Act

[[Page 76368]]

(FPA),\1\ to grant the Commission access, on a non-public and ongoing 
basis, to the complete electronic tags (e-Tags) \2\ used to schedule 
the transmission of electric power interchange transactions in 
wholesale markets. This Final Rule will require e-Tag Authors \3\ 
(through their Agent Service \4\) and Balancing Authorities \5\ 
(through their Authority Service \6\) to take appropriate steps to 
ensure Commission access to the e-Tags covered by this Final Rule by 
designating the Commission as an addressee on the e-Tags.\7\ After the 
Commission is designated as an addressee, the Commission will access 
the e-Tags by contracting with a commercial vendor. The commercial 
vendor will provide data management services and receive e-Tags 
addressed to the Commission. E-Tag Authors and Balancing Authorities 
will be required to ensure Commission access to e-Tag data under this 
Final Rule by no later than March 15, 2013.
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    \1\ 16 U.S.C. 824v, 825f (2006).
    \2\ For purposes of this rulemaking, ``complete e-Tags'' refers 
to: (1) e-Tags for interchange transactions scheduled to flow into, 
out of, or within the United States' portion of the Eastern or 
Western Interconnection, or into the Electric Reliability Council of 
Texas and from the United States' portion of the Eastern or Western 
Interconnection, or from the Electric Reliability Council of Texas 
into the United States' portion of the Eastern or Western 
Interconnection; and (2) information on every aspect of each such e-
Tag, including all applicable e-Tag-IDs, transaction types, market 
segments, physical segments, profile sets, transmission 
reservations, and energy schedules.
    \3\ E-Tag Authors are typically Purchasing-Selling Entities. A 
Purchasing-Selling Entity is the entity that purchases or sells, and 
takes title to, energy, capacity, and Interconnected Operations 
Services. Purchasing-Selling Entities may be affiliated or 
unaffiliated merchants and may or may not own generating facilities. 
See NAESB Electronic Tagging Functional Specifications, Version 
1.8.1.1, at 15.
    \4\ The Agent Service provides the ability for initial creation 
of an e-Tag and the electronic transfer of that information to the 
appropriate Authority Service. E-Tag Authors are responsible for 
providing this service directly or by arranging with a third party 
to provide this service as their agent. See NAESB Electronic Tagging 
Functional Specifications, Version 1.8.1.1, at 24.
    \5\ A Balancing Authority is responsible for integrating 
resource plans ahead of time, maintaining load-interchange-
generation balance within a Balancing Authority Area and supporting 
Interconnection frequency in real-time. See NAESB Electronic Tagging 
Functional Specifications, Version 1.8.1.1, at 10. Sink Balancing 
Authorities, defined as the Balancing Authority in which the load 
(sink) is located for an Interchange Transaction, use an Authority 
Service to electronically validate e-Tags and distribute them for 
approval by other entities. See NAESB Electronic Tagging Functional 
Specifications, Version 1.8.1.1, at 17, 24.
    \6\ The Authority Service validates and distributes e-Tags for 
approval on behalf of the Sink Balancing Authority. See NAESB 
Electronic Tagging Functional Specifications, Version 1.8.1.1, at 
24.
    \7\ These steps are described in more detail below.
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    2. In addition, this Final Rule requires that Regional Transmission 
Organizations (RTOs), Independent System Operators (ISOs) and their 
Market Monitoring Units (MMUs) shall be afforded access to complete e-
Tags, upon request to e-Tag Authors and Authority Services, subject to 
their entering into appropriate confidentiality agreements.

I. Background

    3. E-Tags, also known as Requests for Interchange, are used to 
schedule interchange transactions \8\ in wholesale markets. E-Tags 
document the movement of energy across an interchange over prescribed 
physical paths, for a given duration, and for a given energy 
profile(s), and include information about those entities with financial 
responsibilities for the receipt and delivery of the energy. E-Tags may 
contain information about the different types of entities involved in 
moving power across interchanges, including generators, transmission 
system operators, energy traders, and Load Serving Entities. E-Tags are 
delivered to the Interchange Distribution Calculator (IDC) and webSAS, 
which are used in the TLR procedure IRO-006-4.1 and WECC Unscheduled 
Flow Standard IRO-STD-006-0 for the Eastern and Western 
Interconnection, respectively. Currently, the North American Electric 
Reliability Corporation (NERC) and the Western Electricity Coordinating 
Council (WECC) receive all e-Tag data in the Eastern and Western 
Interconnections, respectively, in near real-time, to assist 
Reliability Coordinators in identifying transactions that may need to 
be curtailed to relieve overloads when transmission constraints occur. 
At present, NERC and WECC contract with OATI, a commercial vendor, for 
data management services related to IDC and webSAS. E-Tags are also 
included in the business practice standards adopted by the North 
American Energy Standards Board (NAESB) \9\ and incorporated by 
reference into the Commission's regulations and public utility tariffs.
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    \8\ NERC's Glossary of Terms Used in Reliability Standards 
(updated November 15, 2012) defines an interchange transaction as 
``[a]n agreement to transfer energy from a seller to a buyer that 
crosses one or more Balancing Authority Area boundaries.'' See 
http://www.nerc.com/files/Glossary_of_Terms.pdf.
    \9\ See, e.g., NAESB Wholesale Electric Quadrant (WEQ) Business 
Practice Standards (Coordinate Interchange) requirement 004-1 (``All 
requests to implement bilateral Interchange (excluding Interchange 
for emergency energy) between a Source BA and a Sink BA, where one 
or both BAs are located in either the Eastern Interconnection or 
Western Interconnection, shall be accomplished by the submission of 
a completed and accurate RFI) to the Sink BA's registered e-Tag 
Authority Service'') and requirement 004-2 (``Until other means are 
adopted by NAESB, the primary method of submitting the RFI [Request 
for Interchange] shall be an e-Tag communicated to and managed by 
the Sink BA's registered e-Tag authority service using protocols 
compliant with the Version 1.8.1 Electronic Tagging Functional 
Specification.'') NAESB Wholesale Electric Quadrant (WEQ) Business 
Practice Standards (Version 003), published July 31, 2012.
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    4. E-Tagging was first implemented by NERC on September 22, 1999, 
as a process to improve the speed and efficiency of the tagging 
process, which had previously been accomplished by email, facsimile, 
and telephone exchanges.\10\ E-Tags require that, prior to scheduling 
transactions, one of the market participants involved in a transaction 
must submit certain transaction-specific information, such as the 
source and sink control areas (now referred to as Balancing Authority 
Areas) and control areas along the contract path, as well as the 
transaction's level of priority and transmission reservation Open 
Access Same-Time Information System (OASIS) reference numbers, to 
control area operators and transmission operators on the contract 
path.\11\
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    \10\ Open-Access Same-Time Information System and Standards of 
Conduct, 90 FERC ] 61,070, at 61,258-59 (2000).
    \11\ Id.
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    5. Communication, submission, assessment, and approval of an e-Tag 
must be completed before the interchange transaction is 
implemented.\12\ The Interchange Scheduling and Coordination (INT) 
group of NERC Reliability Standards sets forth requirements for 
implementing interchange transactions through e-Tags. E-Tags are 
submitted pursuant to the business practices set forth by NAESB. Those 
business practices incorporate the protocols enumerated in the NAESB 
Electronic Tagging Functional Specifications for communicating and 
processing e-Tags. NAESB business practice standards for the wholesale 
electric industry are mandatory when they have been incorporated by 
reference by the Commission into its regulations.\13\ Several of the 
incorporated business practice standards require processing e-

[[Page 76369]]

Tags in accordance with these specifications.\14\
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    \12\ See Mandatory Reliability Standards for the Bulk-Power 
System, Order No. 693, FERC Stats. & Regs. ] 31,242, at P 795, order 
on reh'g, Order No. 693-A, 120 FERC ] 61,053 (2007).
    \13\ See Standards for Business Practices and Communication 
Protocols for Public Utilities, Order No. 676, FERC Stats. & Regs. ] 
31,216, (2006), reh'g denied, Order No. 676-A, final rule, 116 FERC 
] 61,255 (2006), final rule, Order No. 676-B, FERC Stats. & Regs. ] 
31,246 (2007), final rule, Order No. 676-C, FERC Stats. & Regs. ] 
31,274 (2008), order granting clarification and denying reh'g, Order 
No. 676-D, 124 FERC ] 61,317 (2008), final rule, Order No. 676-E, 
FERC Stats. & Regs. ] 31,299 (2009), final rule, Order No. 676-F, 
FERC Stats. & Regs. ] 31,309 (2010).
    \14\ See supra note 9.
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    6. In reviewing the data that currently are available to the 
Commission and its staff and necessary for conducting effective market 
surveillance and analysis, the Commission has determined that gaining 
access to the complete e-Tags used for interchange transactions will 
enhance the Commission's efforts to detect and prevent market 
manipulation and monitor market developments.
    7. The need to gain access to e-Tag data led the Commission to 
issue a Notice of Proposed Rulemaking on April 21, 2011, proposing to 
require NERC to make the complete e-Tags used to schedule the 
transmission of electric power in wholesale markets available to 
Commission staff on an ongoing, non-public basis.\15\ The E-Tag NOPR 
also invited comments on whether the Commission should require that 
complete e-Tags be made available to MMUs.
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    \15\ Availability of E-Tag Information to Commission Staff, 
Notice of Proposed Rulemaking, FERC Stats. & Regs. ] 32,675 (2011) 
(E-Tag NOPR).
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    8. In response to the E-Tag NOPR, comments were filed by 14 
commenters.\16\ The comments expressed a variety of views, some 
supporting the Commission's proposal to require Commission access to 
complete e-Tag information used to schedule interchange transactions 
for market monitoring purposes,\17\ and others opposing the 
Commission's proposal.\18\ Some comments focused on whether NERC is the 
appropriate entity to provide access to the e-Tags and whether their 
data would serve market monitoring or reliability purposes. The Pa 
Commission points out that ``any regulatory provision, adopted by the 
[Commission], that allows it to better perform its statutory function 
of preventing anti-competitive and/or market manipulative behavior at 
the wholesale level may have beneficial effects for state commissions, 
tasked with protecting their residents from such practices, at the 
retail level.'' \19\ NERC commented that it has not owned or operated 
an e-Tag system and that it will not extend its contract with OATI for 
IDC operation services (which includes e-Tag information) after the 
current term expires in March 2013.\20\ The commenters were split as to 
whether they supported allowing MMUs for RTOs and ISOs to have access 
to complete e-Tag information, including access to e-Tags for 
transactions outside of the markets the MMUs monitor and whether such 
access would raise confidentiality issues.\21\ Other commenters urged 
the Commission to grant access to e-Tags to the staffs of ISOs and 
RTOs.\22\ Some commenters emphasized that market monitoring via e-Tags 
will be a complex and challenging enterprise.\23\ In addition, some 
comments stated that, if the Commission proceeds with the proposal in 
the E-Tag NOPR, it would need to enlist the services of an outside 
contractor to provide database services to accomplish the creation and 
collection of e-Tag data as market participants usually only have 
access to data related to their own transactions.\24\ Trade 
Associations disagreed with the burden estimate included in the E-Tag 
NOPR, arguing that it is understated.\25\ Finally, several commenters 
argued that it would be helpful for the Commission to convene a 
technical conference or notice of inquiry before taking final 
action.\26\
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    \16\ In an appendix to this Final Rule, we identify all the 
commenters along with the abbreviations we are using in this Final 
Rule for these commenters.
    \17\ CAISO/DMM, DC Energy, Market Monitors, Pa Commission, PJM/
SPP, Powerex, and SoCal Edison.
    \18\ EPSA, MID, NERC, Southern, Trade Associations, and WECC.
    \19\ Pa Commission at 4.
    \20\ NERC at 4.
    \21\ MMU access to E-Tags was supported by CAISO/DMM, DC Energy, 
Market Monitors, and PJM/SPP and was opposed by MID, Powerex, 
Southern.
    \22\ CAISO/DMM and PJM/SPP.
    \23\ SoCal Edison.
    \24\ EPSA at 3.
    \25\ Trade Associations at 8-9.
    \26\ NERC at 7; EPSA at 6.
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    9. The Commission also invited reply comments, so that interested 
persons would have an opportunity to comment on the ideas and proposals 
expressed in the comments that may not have been included as part of 
the proposals in the E-Tag NOPR.\27\ Reply comments were filed by Trade 
Associations and NAESB. Trade Associations reiterated many of the 
arguments it raised in its initial comments. In its reply comments, 
NAESB stated that it does not take a position on the E-Tag NOPR, but 
notes that existing e-Tag mechanisms with some modification can support 
the distribution of e-Tag information to the Commission.
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    \27\ 77 FR 12760 (Mar. 2, 2012).
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II. Discussion

A. Legal Authority To Require E-Tag Access

1. E-Tag NOPR
    10. In the E-Tag NOPR, the Commission proposed to require NERC to 
provide Commission staff with ongoing access to the e-Tags used to 
schedule interchange transactions in wholesale markets on a non-public 
basis. The E-Tag NOPR stated that e-Tag information would help the 
Commission in its efforts to monitor markets, prevent market 
manipulation, assure just and reasonable rates, and ensure compliance 
with certain business practice standards adopted by NAESB and 
incorporated by reference into the Commission's regulations and the 
filed tariffs of public utilities.\28\ In the E-Tag NOPR, the 
Commission stated that it has authority over public utilities that make 
wholesale power sales or that provide wholesale transmission service to 
report the details of their transactions, including complete e-Tag 
data.\29\ The E-Tag NOPR also stated that, under FPA section 307(a), 
the Commission has, among its powers, authority to investigate any 
facts, conditions, practices, or matters it may deem necessary or 
proper to determine whether any person, electric utility, transmitting 
utility or other entity may have violated or might violate the FPA or 
the Commission's regulations, or to aid in the enforcement of the FPA 
or the Commission's regulations, or to obtain information about 
wholesale power sales or the transmission of power in interstate 
commerce.\30\ Furthermore, the E-Tag NOPR stated that requiring NERC, 
rather than individual market participants, to provide access to e-Tag 
data would avoid burdening market participants with a requirement to 
file the same data with both NERC and the Commission and avoid 
burdening the Commission with developing and maintaining a new system 
to capture such data from individual market participants.\31\
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    \28\ E-Tag NOPR, FERC Stats. & Regs. ] 32,675 at P 1.
    \29\ Id. P 9.
    \30\ Id.
    \31\ Id. P 10.
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2. Comments
    11. Many commenters focused on whether the Commission could use its 
reliability-related authority under FPA section 215 to require NERC to 
provide the Commission with access to e-Tags. In particular, NERC, MID, 
Trade Associations, and WECC assert that the Commission may not use its 
reliability-related jurisdiction over NERC (derived from NERC's status 
as the Commission-approved Electric Reliability Organization (ERO) 
under FPA section 215) to pursue market oversight matters that fall 
outside the scope of section 215.\32\ NERC questions whether it should 
be implicated in subjects and activities that are outside the confines 
of

[[Page 76370]]

section 215.\33\ WECC states that it accesses e-Tag data sought by the 
Commission for the Western Interconnection pursuant to its authorities 
and responsibilities as a Regional Entity under section 215.\34\ WECC 
recognizes that NERC and the Commission may request e-Tag data from 
WECC under FPA section 215, because the WECC Interchange Tool is an 
activity funded in accordance with section 215, but WECC does not 
support the Commission's proposal to require NERC or WECC to provide e-
Tag data for purposes other than those authorized in section 215.\35\
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    \32\ NERC at 6-7, MID at 6-7, Trade Associations at 3-5, WECC at 
3.
    \33\ NERC at 7.
    \34\ WECC at 4.
    \35\ Id. at 4-5.
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    12. NERC states it is not clear that its involvement will be 
limited without additional information about how the Commission will 
collect and use e-Tag data.\36\ MID contends that the proposal would 
allow the ERO to engage in activities not related to reliability 
standards, thereby ``stepping onto a slippery slope of later being 
tasked with other, potential activity outside of the ERO's statutory 
mandate.'' \37\ MID also indicates concern that the Commission's 
request for data may result in a greater amount of work on the part of 
the ERO than anticipated and distract the ERO from ensuring reliability 
of the grid.\38\
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    \36\ NERC at 7.
    \37\ MID at 6.
    \38\ Id. at 8.
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    13. In addition, Trade Associations argue that FPA section 307(a) 
does not provide a sufficient basis for the Commission's proposal.\39\ 
Trade Associations assert that section 307 is not a general grant of 
authority to collect information that may be interesting or potentially 
useful to the Commission.\40\ Rather, contend Trade Associations, FPA 
section 307 pertains to the collection of information, such as through 
subpoenas or other processes, related to the investigation of 
particular matters.\41\ According to Trade Associations, unless the 
Commission seeks access to e-Tags in the context of a ``lawfully 
initiated investigation under the FPA,'' \42\ section 307 is not a 
separate or independent grant of information collection authority that 
may be used for general market oversight purposes by the Commission. In 
reply comments, Trade Associations state that, if the Commission 
decides to collect or access e-Tag data, the Commission should do so 
selectively, on an as-needed basis for particular power flows, where 
the Commission has questions that only e-Tag data may help answer. 
Similarly, Southern contends that, if the Commission seeks e-Tag data, 
it should submit targeted requests to appropriate entities.\43\
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    \39\ Trade Associations at 4.
    \40\ Id. at 6 (citing Federal Power Commission v. Metropolitan 
Edison Co., et al., 304 U.S. 375 (1938) (FPC v. Metropolitan 
Edison); Mississippi Power & Light Co. v. Federal Power Commission, 
131 F.2d 148 (5th Cir. 1942) (Mississippi Power & Light v. FPC); 
Survey on Operator Training Practices, 110 FERC ] 61,050 n.3 
(2005)).
    \41\ Trade Associations at 6.
    \42\ Id. (citing 18 CFR Part 1b).
    \43\ Southern at 2.
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3. Commission Determination
    14. At the outset, the Commission notes that neither the E-Tag NOPR 
nor the Final Rule in this proceeding relies on the Commission's 
reliability authority under FPA section 215 to gain access to e-Tags. 
Therefore, any comments founded on concerns about the Commission's 
authority (or lack of authority) under FPA section 215 are off point. 
Rather, as discussed below, the Commission's anti-manipulation 
authority under FPA section 222, taken together with its investigative 
authority under FPA section 307(a), provides the basis for accessing e-
Tag information related to wholesale electricity market transactions.
    15. As part of the Energy Policy Act of 2005 (EPAct 2005),\44\ 
Congress granted the Commission authority over the prohibition of 
market manipulation in connection with the purchase or sale of electric 
energy and transmission subject to the Commission's jurisdiction in FPA 
section 222. In addition, FPA section 222 prohibits energy market 
manipulation by ``any entity,'' including entities exempted from the 
Commission's rate-related jurisdiction by FPA section 201(f).\45\ The 
application of this provision to ``any entity'' and not solely to 
public utilities is further evidenced by section 201(b)(2) of the FPA, 
which explicitly states that certain provisions, including section 222, 
shall apply to entities that fall within the scope of FPA section 
201(f).\46\ Commission access to the information contained in e-Tags 
will help the Commission determine whether market manipulation is 
taking place and, absent these data, the Commission will be more 
limited in its ability to perform this function.
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    \44\ EPAct 2005, Public Law 109-58, 119 Stat. 594 (2005).
    \45\ 16 U.S.C. 824(f).
    \46\ In particular, FPA section 201(b)(2) provides: 
``Notwithstanding section 201(f), the provisions of section[] * * * 
222 shall apply to the entities described in such provisions, and 
such entities shall be subject to the jurisdiction of the Commission 
for purposes of carrying out such provisions and for purposes of 
applying the enforcement authorities of this Act with respect to 
such provisions.'' 16 U.S.C. 824(b)(2).
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    16. In turn, FPA section 307(a) grants the Commission authority to 
``obtain[] information about the sale of electric energy at wholesale 
in interstate commerce and the transmission of electric energy in 
interstate commerce.'' E-Tag data unquestionably provides ``information 
about the sale of electric energy at wholesale in interstate commerce 
and the transmission of electric energy in interstate commerce.'' 
Moreover, as discussed below with regard to the Commission's need for 
e-Tag data, this information will help the Commission ascertain whether 
``any person, electric utility, transmitting utility, or other entity 
has violated or is about to violate any provisions of this Act or any 
rule, regulation, or order thereunder.'' Thus, we conclude that 
obtaining e-Tag data from market participants or other entities is 
within the Commission's authority under FPA section 307(a). And the 
Commission's surveillance efforts are encompassed within its broad 
investigative authority as they are precisely what section 307 is 
designed to permit--i.e., ``to determine whether any person [or entity] 
* * * has violated or is about to violate any provisions of the [FPA] * 
* * or in obtaining information about the sale of electric energy at 
wholesale in interstate commerce and the transmission of electric 
energy in interstate commerce.''
    17. Contrary to Trade Associations' assertion that the Commission's 
investigative authority under FPA section 307 is limited solely to 
investigations of particular matters, FPA section 307(a) allows the 
Commission to investigate more broadly, i.e., to obtain information 
about the activities of entities participating in wholesale energy 
markets.\47\ Moreover, the cases

[[Page 76371]]

cited by the Trade Associations do not support their contention that 
section 307 only pertains to collecting information, such as through 
subpoenas or other process, in connection with investigating particular 
matters. Specifically, in FPC v. Metropolitan Edison and Mississippi 
Power & Light v. FPC, the issue before the courts was whether the 
courts could review orders issued by the Federal Power Commission, 
pursuant to its authority under FPA section 307 to institute 
investigations that required the production of company records and the 
examination of witnesses. In both cases, the courts allowed the 
Commission's investigations to go forward.\48\ Trade Associations also 
cite to an order in which the Commission noted that compliance with a 
survey may be compelled by subpoenas issued under FPA section 307.\49\ 
Although FPA section 307(b) enables the Commission to use subpoenas (or 
other formal processes) when necessary in connection with an 
investigation, it does not follow that all Commission investigations 
initiated under section 307(a) are limited to particular matters and 
cannot be used to collect information more broadly.
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    \47\ Indeed, the Commission has previously relied on its 
authority under FPA section 307(a) to collect data not linked to an 
investigation of a specific entity. See, e.g., Enhancement of 
Electricity Market Surveillance and Analysis through Ongoing 
Electronic Delivery from Regional Transmission Organizations and 
Independent System Operators, Order No. 760, FERC Stats. & Regs. ] 
31,330 (2012) (where the Commission relied on FPA sections 301(b) 
and 307(a) for ongoing collections of data from RTOs and ISOs for 
use in its surveillance of those markets); New Reporting 
Requirements Implementing Section 213(b) of the Federal Power Act 
and Supporting Expanded Regulatory Responsibilities under the Energy 
Policy Act of 1992, and Conforming and Other Changes to Form No. 
FERC-714, Order No. 558, FERC Stats. & Regs. ] 30,980 (1993), reh'g 
denied, Order No. 558-A, 65 FERC ] 61,324 (1993), final rule, Order 
No. 558-B, FERC Stats. & Regs. ] 30,993 (1994) (where the Commission 
relied on its ``general information collection authorities'' under 
FPA section 307(a), among other provisions, to require the 
collection of certain data from transmitting utilities in Form Nos. 
714 and 715).
    \48\ See FPC v. Metropolitan Edison Co., 304 U.S. at 385-86; 
Mississippi Power & Light Co. v. FPC, 131 F.2d at 149 (citing FPC v. 
Metropolitan Edison Co., 304 U.S. 375 (1938)).
    \49\ Trade Associations at 6 (citing Survey on Operator Training 
Practices, 110 FERC ] 61,050, at n.3 (2005)). The Commission stated 
in this footnote: ``If necessary, compliance with the survey may be 
compelled pursuant to section 307 of the FPA, 16 U.S.C. 825f (2000), 
which authorizes the Commission to issues subpoenas in support of 
the Commission obtaining information to serve as a basis for 
recommending legislation.'').
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    18. The Supreme Court has also recognized that an administrative 
agency's investigative authority is not limited to a particular case. 
For example, in referring to investigations conducted by the Federal 
Trade Commission (FTC), the Court held in Morton Salt that, when an 
administrative agency is given investigative duties by Congress, the 
agency has the power to obtain information not only within the context 
of a particular case or controversy, but to ``investigate merely on 
suspicion that the law is being violated, or even just because it wants 
assurance that it is not.'' \50\ The same principle applies here with 
respect to the investigative powers that Congress has given the 
Commission under FPA section 307.
---------------------------------------------------------------------------

    \50\ United States v. Morton Salt, 338 U.S. 632, 642 (1950) 
(Morton Salt).
---------------------------------------------------------------------------

    19. Furthermore, we disagree with Trade Associations' suggestion 
that an investigation initiated by the Commission under FPA section 
307(a) must follow the procedures set forth in Part 1b of the 
Commission's regulations \51\ in order to be considered ``lawful.'' FPA 
section 307(a) permits the Commission to investigate to obtain 
information about the wholesale sale and transmission of electric 
energy, but this provision does not prescribe the manner in which the 
Commission must obtain such information, and the Commission has not 
previously applied its Part 1b regulations to every proceeding 
instituted under FPA section 307(a).\52\ Furthermore, we note that 
section 307(a) of the FPA was initially enacted in 1935, well before 
the enactment of Part 1b of the Commission's regulations, and section 
307(a) makes no reference to Part 1b. In response to Trade 
Associations' comment that the Commission should limit its e-Tag access 
to particular power flows, we note that limiting Commission access in 
such a way will not provide the Commission with sufficient data to 
properly understand the transactional activity taking place in 
wholesale electric markets and will impede its efforts to perform 
effective market surveillance and analysis.
---------------------------------------------------------------------------

    \51\ 18 CFR part 1b.
    \52\ See, e.g., Reporting on North American Energy Standards 
Board Public Key Infrastructure Standards, 140 FERC ] 61,066 (2012) 
(where the Commission instituted a proceeding under FPA section 
307(a) to investigate the facts and practices surrounding the 
implementation of certain NAESB standards by requiring entities, 
including those not otherwise subject to the Commission's 
jurisdiction as a public utility, to submit a report).
---------------------------------------------------------------------------

    20. Finally, in the Order No. 676 series of orders,\53\ the 
Commission incorporated by reference into its regulations, at 18 CFR 
38.2, business practice standards applicable to public utilities and 
certain non-public utilities. By incorporating these business practice 
standards by reference, the Commission made these standards mandatory 
and enforceable. Given that the use and format of e-Tags is governed by 
the NAESB business practice standards and by e-Tag protocols and 
specifications referenced in those standards, Commission access to this 
information is necessary to determine whether these requirements are 
being met.\54\
---------------------------------------------------------------------------

    \53\ See supra note 13.
    \54\ See supra note 9.
---------------------------------------------------------------------------

B. Need for Commission Access to E-Tag Information

1. E-Tag NOPR
    21. In the E-Tag NOPR, the Commission stated that obtaining access 
to complete e-Tag data will help the Commission to detect anti-
competitive or manipulative behavior or ineffective market rules, 
monitor the efficiency of the markets, and better inform Commission 
policies and decision-making.\55\ The E-Tag NOPR explained that, by 
using e-Tag data in coordination with other data, the Commission will 
be better able to identify interchange schedules that appear anomalous 
or inconsistent with rational economic behavior.\56\ The E-Tag NOPR 
stated that access to e-Tag data would allow the Commission's staff to 
examine more effectively situations where interchange schedules are 
absent, even when transmission capacity is available and pricing 
differences between the two locations ought to be sufficient to 
encourage transactions between those locations, thereby signaling a 
market issue or other problem.\57\ The E-Tag NOPR also noted that, in 
cases where e-Tags are relevant, access to e-Tags would provide the 
Commission with more complete information for use in conducting audits 
or investigations.\58\
---------------------------------------------------------------------------

    \55\ E-Tag NOPR, FERC Stats. & Regs. ] 32,675 at P 15.
    \56\ Id.
    \57\ Id.
    \58\ Id.
---------------------------------------------------------------------------

2. Comments
    22. Some commenters support the Commission's proposal to require 
Commission access to complete e-Tag information used to schedule 
interchange transactions for market monitoring purposes.\59\ Other 
commenters oppose the Commission's proposal.\60\ Trade Associations 
argue that it is unclear why the Commission believes e-Tag information 
would enhance the Commission's efforts to monitor market developments 
and prevent market manipulation, assure just and reasonable rates, and 
monitor compliance with certain NAESB business practices.\61\ Trade 
Associations argue that the data collected cannot be translated into 
useful information without detailed explanations of each transaction 
that an e-Tag relates to and that providing these explanations would be 
burdensome.\62\ In particular, Trade Associations state that many power 
sales do not have e-Tags; e-Tags often include multiple transactions; 
power sales are often recorded across multiple e-Tags; e-Tags get 
revised and replaced on a regular basis; and a single e-Tag can 
represent multiple transactions among numerous parties.
---------------------------------------------------------------------------

    \59\ CAISO/DMM, DC Energy, Market Monitors, PJM/SPP, Powerex, 
and SoCal Edison.
    \60\ EPSA, MID, NERC, Southern, Trade Associations, and WECC.
    \61\ Trade Associations at 6.
    \62\ Id. at 7.

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

[[Page 76372]]

    23. Powerex comments that it agrees with the Commission's goals, 
but suggests that the Commission should obtain e-Tag and EQR 
information concerning all market participants, including utilities 
typically outside Commission jurisdiction, and must ensure that the 
data obtained are consistent and unambiguous.\63\ Powerex also argues 
that the Commission should direct NERC and NAESB to adopt standardized 
generation product codes under the e-Tagging protocols and develop a 
method to ensure these standards are used consistently and 
enforced.\64\ Powerex urges the Commission to consider requiring all 
transmission providers to post additional e-Tag scheduling information 
on their OASIS sites, including the generation product code and the 
entity that is responsible for holding the necessary reserves for each 
schedule and relevant information associated with curtailing an e-
Tag.\65\ Powerex also asks the Commission to review and perhaps 
reconsider the waivers it has granted to some transmission providers 
exempting them from posting scheduling information on OASIS.\66\
---------------------------------------------------------------------------

    \63\ Powerex at 4.
    \64\ Id. at 7-9.
    \65\ Id. at 5, 12.
    \66\ For example, Powerex suggests that the Commission may want 
to consider whether to require e-Tag data regarding schedules on 
interties into organized markets, such as those into CAISO, to be 
posted on OASIS. Powerex at 12.
---------------------------------------------------------------------------

    24. SoCal Edison supports requiring the ERO to provide access to 
the e-Tag data but emphasizes that market monitoring via e-Tags will be 
a complex and challenging enterprise because e-Tags are not designed as 
market monitoring tools.\67\ SoCal Edison states that a thorough 
understanding of the energy markets and expertise in analyzing such 
data is often required to distinguish between a legitimate business 
transaction and an illegitimate business transaction that could 
potentially look the same or very similar.\68\ EPSA states that third 
party vendors, such as OATI, provide services to accomplish the 
creation and collection of e-Tag data and market participants usually 
do not have the data. EPSA argues that to ask for the data from either 
NERC or market participants would require a massive overhaul of data 
collection systems.
---------------------------------------------------------------------------

    \67\ SoCal Edison at 2.
    \68\ Id.
---------------------------------------------------------------------------

    25. NERC and EPSA suggest that the Commission should convene a 
technical conference to discuss the issues raised by the E-Tag NOPR. 
Southern urges the Commission to withdraw the E-Tag NOPR and supports 
Trade Associations' recommendation that the Commission initiate a new 
rulemaking proceeding if it decides to collect e-Tag data through any 
means other than NERC.
    26. Mr. Ronald Rattey states that the Commission's access to 
complete e-Tags should allow the data to be accessed on a real-time 
basis and should include adding additional data elements, such as 
generation and transmission contract IDs, to ensure that it can be 
linked to EQR transaction data and transmission rights.\69\ Mr. Rattey 
states his belief that the proposals in the E-Tag NOPR and the NOPR on 
Electricity Market Transparency \70\ are unlikely to give the 
Commission the capability to prevent, monitor, or stop market abuses 
that have occurred since the late 1990s.\71\
---------------------------------------------------------------------------

    \69\ Ronald Rattey at 14-16.
    \70\ See Electricity Market Transparency Provisions of Section 
220 of the Federal Power Act, Notice of Proposed Rulemaking, FERC 
Stats. & Regs. ] 32,676 (2011). A Final Rule in that proceeding was 
issued on October 11, 2012. See Order No. 768, FERC Stats. & Regs. 
31,336 (2012).
    \71\ Ronald Rattey at 3.
---------------------------------------------------------------------------

3. Commission Determination
    27. Access to e-Tag data will help the Commission in its efforts to 
detect market manipulation and anti-competitive behavior, monitor the 
efficiency of markets, and better inform Commission policies and 
decision-making. The Commission needs e-Tag data covering all the 
transactions involving the interconnected entities listed on the e-Tag 
because the information is necessary to understand the use of the 
interconnected electricity grid, and particularly those transactions 
occurring at interchanges. Due to the nature of the electricity grid, 
an individual transaction's impact on an interchange cannot be assessed 
adequately in all cases without information from all connected systems, 
which is included in the e-Tags. Having available the details of the 
physical path of a transaction included in the e-Tags will help the 
Commission monitor, in particular, interchange transactions 
effectively, prevent price manipulation over interchanges, and ensure 
the efficient and orderly use of the transmission grid. At this time, 
no entity, including NERC, is monitoring all interchange transactions.
    28. Regular access to e-Tags for power flows across interchanges 
will make it possible for the Commission to identify or analyze various 
behaviors by market participants to determine if they are part of a 
potentially manipulative scheme(s). For example, e-Tag information can 
enable the Commission to investigate whether entities may be engaging 
in manipulative schemes involving the circular scheduling of imports 
and exports into a market to benefit other positions held by these 
entities, as demonstrated by recent investigations by the Commission's 
Office of Enforcement.\72\ Without access to the e-Tags, it is more 
difficult, and, at times, the Commission may even be unable to assess 
whether manipulative schemes are taking place.
---------------------------------------------------------------------------

    \72\ See, e.g., Gila River Power, LLC, 141 FERC ] 61,136 (2012) 
(where the Commission approved a settlement with Gila River Power 
related to its violations of the Commission's Anti-Manipulation 
Rule, the Commission's regulation prohibiting submission of 
inaccurate information, and similar provisions in the CAISO tariff 
by submitting transactions designated as wheel-through 
transactions).
---------------------------------------------------------------------------

    29. In addition, e-Tag access will help the Commission to 
understand, identify and address instances where interchange pricing 
methodologies or scheduling rules result in inefficiencies and 
increased costs to market participants collectively. As an example, 
Staff identified one cause of increased Lake Erie loop flows to be 
changes made by the New York Independent System Operator (NYISO) in 
2007 in its pricing methodology for the proxy bus between NYISO and 
PJM.\73\ Following these pricing changes, market participants modified 
their transmission service scheduling practices and thus increased loop 
flows, and transmission service schedules and loop flows that do not 
follow pricing signals increase costs to markets and decrease 
efficiencies. Using e-Tag data, the Commission would be in a better 
position to identify and understand, and when necessary, to address, 
instances when market pricing methodologies and rules become unjust and 
unreasonable as a result of inefficient transmission service 
scheduling. Moreover, access to e-Tag information will allow the 
Commission to determine whether the requirements of the mandatory 
business practice standards related to e-Tags have been met.
---------------------------------------------------------------------------

    \73\ See New York Indep. Sys. Operator, Inc., 128 FERC ] 61,049 
(2009) and attached Office of Enforcement Staff Report on the Non-
Public Investigation into Allegations of Market Manipulation in 
Connection with Lake Erie Loop Flows at 4-7.
---------------------------------------------------------------------------

    30. Trade Associations express concern that e-Tag data cannot be 
translated into useful information without detailed explanations of 
each transaction related to the e-Tag. Although we recognize that e-Tag 
data are complex, the Commission has expertise and may be able to use 
the e-Tag data without the need for detailed explanations of each 
transaction associated with an e-Tag. Furthermore, the Commission has 
undertaken efforts

[[Page 76373]]

to obtain interchange transaction data from other sources that, when 
used in conjunction with the e-Tag data obtained under this Final Rule, 
will provide additional information for understanding the transactional 
context related to e-Tags.\74\
---------------------------------------------------------------------------

    \74\ See Order No. 760, FERC Stats. & Regs. ] 31,330; Order No. 
768, FERC Stats. & Regs. ] 31,336.
---------------------------------------------------------------------------

    31. The Commission agrees with certain commenters that using e-Tag 
data for market monitoring purposes will require expertise in analyzing 
such data, and we believe that we have such expertise. In addition, as 
discussed below,\75\ the Commission will not require NERC or individual 
market participants to provide complete e-Tag data directly to the 
Commission. The Commission will instead require that e-Tag Authors, 
through their Agent Service, and Balancing Authorities, through their 
Authority Service, ensure that the Commission is included as an entity 
on an e-Tag with view-only rights on the e-Tags. This approach 
minimizes any burden on market participants, because they already have 
the capability to designate entities with view-only rights on the e-
Tags, and will not require any further changes in their data collection 
systems. Moreover, this approach places no burden on NERC. Finally, as 
recognized in the E-Tag NOPR, the Commission will directly access e-Tag 
data that is currently being collected and stored in databases.\76\
---------------------------------------------------------------------------

    \75\ See infra P 39.
    \76\ See E-Tag NOPR, FERC Stats. & Regs. ] 32,675 at P 7 note 9.
---------------------------------------------------------------------------

    32. The Commission finds that there is sufficient information on 
the record in this proceeding to make the determinations in this Final 
Rule and, therefore, we reject the requests for a technical conference. 
Additionally, we reject those comments suggesting that the Commission 
should initiate a new rulemaking proceeding if it decides not to access 
e-Tag data through NERC. The Commission has provided interested parties 
with sufficient notice and opportunity for comment on the matters 
addressed in this rulemaking proceeding, including the Final Rule's 
determination to not involve NERC in the Commission's access to e-Tag 
data. In particular, comments filed in response to the E-Tag NOPR 
suggested an alternative method for the Commission to obtain e-Tag 
information consistent with the approach taken in this Final Rule.\77\ 
In addition, on February 23, 2012, the Commission issued a notice 
providing interested parties the opportunity to file reply comments on 
the E-Tag NOPR. In that notice, the Commission specified that these 
reply comments may also address whether the Commission should require 
entities that create e-Tags or distribute them for approval to provide 
the Commission with viewing rights to the e-Tags. Furthermore, the 
Commission finds the Final Rule's approach for implementing the E-Tag 
NOPR's objective of allowing access to e-Tags to the Commission 
satisfies the notice requirement under the Administrative Procedure Act 
\78\ because the content of this Final Rule is a ``logical outgrowth'' 
of the proposal in the E-Tag NOPR.\79\
---------------------------------------------------------------------------

    \77\ See Market Monitors at 10.
    \78\ 5 U.S.C. 553(b)(3).
    \79\ See Aeronautical Radio, Inc. v. FCC, 928 F.2d 428, 446 
(D.C. Cir. 1991) (referencing United Steel Workers of Am. v. 
Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980)).
---------------------------------------------------------------------------

C. Implementing the Commission's E-Tag Access

1. E-Tag NOPR
    33. In the E-Tag NOPR, the Commission proposed to require NERC 
rather than individual market participants to provide access to e-Tag 
data to avoid burdening market participants with submitting the same 
data to both NERC and the Commission.\80\ The E-Tag NOPR also noted 
that this proposal would avoid burdening the Commission with developing 
and maintaining a new system to capture such data from individual 
market participants.\81\
---------------------------------------------------------------------------

    \80\ E-Tag NOPR, FERC Stats. & Regs. ] 32,675 at P 10. Under the 
proposal, the Commission's staff would gain access to the e-Tag data 
that is currently being collected and stored in databases by private 
vendors under contract with NERC. E-Tag NOPR, FERC Stats. & Regs. ] 
32,675 at P 7, note 10.
    \81\ Id.
---------------------------------------------------------------------------

2. Comments
    34. NERC states that it has not owned or operated an e-Tag system, 
but instead has facilitated the creation of the e-Tag specifications 
and schema used by software vendors to develop e-Tagging tools.\82\ 
NERC adds that it transferred responsibility for the e-Tag 
specifications and schema to NAESB effective October 27, 2009.\83\ 
Further, NERC states that it gave OATI formal notice on April 29, 2011 
that it will no longer be a party to the IDC Extension Agreement after 
March 2013.\84\ According to NERC and Trade Associations, the e-Tag 
data provided to the IDC is jointly owned by NERC and the Operating 
Reliability Entities (i.e., Balancing Authorities, Reliability 
Coordinators and Transmission Service Providers), so NERC alone cannot 
grant rights to the data without prior authorization from the Operating 
Reliability Entities.\85\ Therefore, argues NERC, the Commission must 
seek approval from the Operating Reliability Entities to have access to 
the e-Tag data and then work directly with OATI to determine how to 
access the data and pay any related costs.\86\
---------------------------------------------------------------------------

    \82\ NERC at 4.
    \83\ Id.
    \84\ Id.
    \85\ Id. at 5, Trade Associations at 8.
    \86\ NERC at 5.
---------------------------------------------------------------------------

    35. NERC asserts that it does not have access to e-Tag data in the 
Western Interconnection, except to the extent it can request e-Tag 
information as it performs its compliance-related duties as to 
Reliability Standards, or to the extent that data is shared with the 
Eastern Interconnection, as may be the case for transactions scheduled 
between Interconnections.\87\ NERC comments that WECC contracts 
directly with OATI for its WECC Interchange Tool as the Tagging 
Authority Service for the Western Interconnection.\88\ WECC recommends 
that the Commission seek e-Tag data from individual market participants 
under statutory authorities other than FPA section 215.\89\
---------------------------------------------------------------------------

    \87\ Id. at 6.
    \88\ Id. at 5.
    \89\ WECC at 3.
---------------------------------------------------------------------------

    36. By contrast, Market Monitors contend that obtaining such data 
from individual market participants, rather than NERC, would be 
extremely burdensome and infeasible.\90\ PJM/SPP assert that the 
Commission should have access to complete information about wholesale 
energy market transactions that the Commission may find useful in 
discharging its responsibilities under the FPA. They also argue that 
the Commission should be given access to information (such as e-Tag 
data) that supports transparency in wholesale energy market 
transactions.\91\
---------------------------------------------------------------------------

    \90\ Market Monitors at 9.
    \91\ PJM/SPP at 3-4 (citing 16 U.S.C. 824, 824d, 824e, 824o).
---------------------------------------------------------------------------

    37. PJM/SPP and CAISO/CAISO's Department of Market Monitoring 
(CAISO/DMM) contend that creating and maintaining any new system to 
capture and access the e-Tag information that market participants are 
already providing to NERC would be costly, redundant, and 
inefficient.\92\ SoCal Edison asserts that there may be some 
jurisdictional issues that prevent the Commission from requesting e-Tag 
data directly from NERC, but urges the Commission to review other legal 
options for doing so because NERC is already the repository of such 
information.\93\
---------------------------------------------------------------------------

    \92\ PJM/SPP at 4, CAISO/DMM at 2.
    \93\ SoCal Edison at 3.
---------------------------------------------------------------------------

    38. EPSA argues that e-Tag information is collected by a third-
party

[[Page 76374]]

vendor who works with NERC to provide inputs to NERC's congestion 
management tools.\94\ EPSA states that no single Commission-
jurisdictional entity collects the information en masse for a complete 
market snapshot.\95\
---------------------------------------------------------------------------

    \94\ EPSA at 4.
    \95\ Id. at 5.
---------------------------------------------------------------------------

3. Commission Determination
    39. Based on NERC's statement that it is not extending its IDC 
Extension Agreement beyond March 2013,\96\ this Final Rule is modifying 
the E-Tag NOPR proposal, as suggested in comments outlining an 
alternative method for the Commission to obtain e-Tag information,\97\ 
to adopt a means for the Commission to access complete e-Tag data that 
does not entail any involvement by NERC or WECC.\98\ This Final Rule 
will require that e-Tag Authors, through their Agent Service, and 
Balancing Authorities, through their Authority Service, take 
appropriate steps to ensure that the Commission is included as an 
addressee on the e-Tags covered by this Final Rule.\99\
---------------------------------------------------------------------------

    \96\ See NERC at 5.
    \97\ See Market Monitors at 10 (``An additional method for FERC 
and market monitors to obtain tag information is to require that all 
tags contain the registered FERC and MMUs within the market path of 
all tags. By doing so, all tags would automatically be forwarded to 
the FERC and the MMUs, but would not grant the Commission or the 
MMUs approval rights.'').
    \98\ We note that the Commission provided public notice and an 
opportunity to comment on this alternative method for the Commission 
to obtain access to e-Tags when we invited reply comments. 77 FR 
12760 (Mar. 2, 2012).
    \99\ As noted above, these e-Tags are e-Tags for interchange 
transactions scheduled to flow into, out of, or within the United 
States' portion of the Eastern or Western Interconnection, or into 
the Electric Reliability Council of Texas from the United States' 
portion of the Eastern or Western Interconnection; or from the 
Electric Reliability Council of Texas into the United States' 
portion of the Eastern or Western Interconnection.
---------------------------------------------------------------------------

    40. Currently, when an e-Tag Author creates an e-Tag through its 
Agent Service, it can designate entities on the e-Tag with view-only 
rights to the e-Tag.\100\ The Agent Service electronically transfers 
the e-Tag to the Authority Service used by the Sink Balancing Authority 
to validate the e-Tag data elements.\101\ In addition to this 
validation function, the Authority Service compiles a distribution list 
for each e-Tag that includes the entities specified by the e-Tag Author 
as having view-only rights along with entities identified by the 
Authority Service as having approval rights in connection with the 
interchange schedule outlined in the e-Tag.\102\ The Authority Service 
then electronically delivers comprehensive e-Tag data to the addresses 
registered by the entities included on the distribution list. After the 
e-Tag data is delivered to the registered address, the addressee can 
access the data directly or by contracting with a commercial vendor 
that provides data management services.
---------------------------------------------------------------------------

    \100\ E-Tag Authors may include a ``Carbon Copy List'' (CC list) 
on their e-Tags specifying the entities that will be provided with a 
copy of the e-Tag without being given approval rights. See NAESB 
Electronic Tagging Functional Specifications, Version 1.8.1.1, 
section 1.4.11, at p. 37.
    \101\ See NAESB Electronic Tagging Functional Specifications, 
Version 1.8.1.1, section 3.5, at 64.
    \102\ The Authority Service must determine the distribution list 
for an e-Tag, which includes all entities contained in the CC list 
created by the e-Tag Author. Entities with approval rights include 
the Transmission Service Providers, Balancing Authorities and 
Reliability Coordinators associated with that interchange schedule. 
See NAESB Electronic Tagging Functional Specifications, Version 
1.8.1.1, section 3.6.1.1.1, at 66.
---------------------------------------------------------------------------

    41. The Commission anticipates that existing procedures for 
processing and communicating e-Tags, which are largely automated, will 
be used to facilitate Commission access to e-Tags. The Commission will 
require that the Agent Service used by e-Tag Authors include the 
Commission on the CC list of entities with view-only rights to the e-
Tags covered by this Final Rule.\103\ In addition, the Commission will 
require that the Authority Service used by the Sink Balancing Authority 
(located within the United States) validate the inclusion of the 
Commission on the CC list of the e-Tags before those e-Tags are 
electronically delivered to an address specified by the Commission. 
After the e-Tags are delivered to that registered address, the 
Commission will gain electronic access by contracting with a commercial 
vendor that provides data management services.\104\ Because existing 
procedures can allow for Commission access to e-Tags, the Commission 
expects that any burden on e-Tag Authors and Balancing Authorities 
associated with this Final Rule will be minimal. E-Tag Authors and 
Balancing Authorities are required to ensure Commission access to e-Tag 
data under this Final Rule by no later than March 15, 2013.
---------------------------------------------------------------------------

    \103\ Following issuance of this Final Rule and the Commission's 
registration in the OATI webRegistry, the Commission will issue a 
notice specifying which entity code should be used to ensure that 
the Commission is an addressee on the e-Tags.
    \104\ The Commission reserves the right to arrange for direct 
electronic delivery at some future date.
---------------------------------------------------------------------------

D. Providing E-Tag Access to MMUs, RTOs and ISOs

1. E-Tag NOPR
    42. The E-Tag NOPR invited comment on whether e-Tag information 
should be made available to MMUs.\105\ The E-Tag NOPR also asked 
whether making the data available to MMUs would raise confidentiality 
concerns or require specific confidentiality provisions.\106\
---------------------------------------------------------------------------

    \105\ E-Tag NOPR, FERC Stats. & Regs. ] 32,675 at P 18.
    \106\ Id. P 18.
---------------------------------------------------------------------------

2. Comments
    43. Some commenters express support for allowing MMUs to gain 
access to complete e-Tag information, including data about transactions 
outside of the markets they monitor,\107\ while other commenters oppose 
allowing such access.\108\ Certain commenters also submitted comments 
in support of allowing RTOs and ISOs and/or Reliability Coordinators to 
gain access to complete e-Tag information.\109\
---------------------------------------------------------------------------

    \107\ CAISO/DMM, DC Energy, Market Monitors, and PJM/SPP.
    \108\ MID, Powerex, and Southern.
    \109\ CAISO/DMM, Market Monitors and PJM/SPP.
---------------------------------------------------------------------------

    44. SoCal Edison expresses support for MMUs having access to 
complete e-Tag data on a non-public basis, as long as this access does 
not impose excessive costs on market participants, the ERO, or any 
other entity involved in providing such information to the MMUs.\110\ 
DC Energy states that the quicker the MMUs have access to e-Tag data, 
the quicker they can react to prevent the potential for market 
manipulation and/or abuse.\111\
---------------------------------------------------------------------------

    \110\ SoCal Edison at 5.
    \111\ DC Energy at 3.
---------------------------------------------------------------------------

    45. CAISO/DMM states that MMUs play a key role in market analysis, 
design and monitoring and therefore should have access to the 
data.\112\ CAISO/DMM states that it currently has access to e-Tag 
information for all schedules with a source, sink, or contract path 
through the CAISO system and the E-Tag NOPR would expand data available 
to DMM to include complete e-Tag information on any e-Tag associated 
with these transactions.\113\
---------------------------------------------------------------------------

    \112\ CAISO/DMM at 2.
    \113\ Id.
---------------------------------------------------------------------------

    46. Market Monitors urge the Commission to require that e-Tag 
information be made available to MMUs.\114\ Market Monitors state that 
they need access to information that is as complete as possible and in 
a form that allows efficient assessment and analysis to effectively 
identify and refer instances of market manipulation to the 
Commission.\115\ In particular, Market Monitors argue that loop flows 
(i.e., the difference between actual and scheduled power flows at one 
or more specific interfaces) cannot be understood without complete data 
covering all scheduled and actual paths.\116\ Market Monitors explain 
that

[[Page 76375]]

loop flows can have negative impacts on the efficiency of markets with 
explicit locational pricing, including impacts on locational prices, 
revenue adequacy of financial transmission rights, and system 
operations.\117\
---------------------------------------------------------------------------

    \114\ Market Monitors at 1.
    \115\ Id. at 2.
    \116\ Id. at 4.
    \117\ Id.
---------------------------------------------------------------------------

    47. According to Market Monitors, loop flows can also provide 
evidence of attempts to game such markets. They note that the explicit 
choice of a scheduled path that is profitable only on the scheduled 
path and not on the actual path is a trading strategy that reduces 
efficiency and is difficult for market monitors or the Commission to 
evaluate without adequate information.\118\ Market Monitors state that 
the inconsistency between electricity schedules and actual flows can 
allow participants to engage in acts that may constitute market rule 
violations but that cannot be detected without more detailed and 
accurate information on the schedules that are contained in e-Tag 
data.\119\
---------------------------------------------------------------------------

    \118\ Id.
    \119\ Id. at 5.
---------------------------------------------------------------------------

    Market Monitors state that they currently obtain some e-Tag data 
via a set of ``Tag Dump'' files, but that these files exclude key data 
items, including complete market path and loss provision 
information.\120\ They argue that access to e-Tag data should exceed 
the basic Tag Dump files, and include all e-Tag data, to provide the 
means to monitor transactions in real time from the initial submission 
of the requests through implementation.\121\ In addition, Market 
Monitors state that access to the data should be provided at reasonable 
cost in a manner that can be imported into databases for easy querying 
and analysis.\122\ Market Monitors state that the Commission should 
provide them with access to additional data from Balancing Authorities 
in the Eastern Interconnection to enable complete loop flow analysis, 
including Area Control Error data, market flow impact data, and 
generation and load data.\123\
---------------------------------------------------------------------------

    \120\ Id. at 7.
    \121\ Id. at 8.
    \122\ Id.
    \123\ Id. at 6.
---------------------------------------------------------------------------

    48. PJM/SPP and CAISO/DMM also support access to e-Tags for MMUs. 
Southern cautions that the e-Tag data will not readily translate into 
information that can be used to monitor markets and, therefore, it 
would not improve an MMU's ability to monitor loop flows and 
corresponding market impacts.\124\ Southern also argues that to the 
extent MMUs need this information they should get it through individual 
requests on a case-by-case basis from the market participants who hold 
the information and have the authority to disclose it.\125\
---------------------------------------------------------------------------

    \124\ Southern at 2.
    \125\ Id.
---------------------------------------------------------------------------

    49. CAISO/DMM and PJM/SPP also support making complete e-Tag 
information available to RTOs and ISOs. CAISO/DMM states that the 
comprehensive e-Tag information should be made available to the ISO or 
RTO staff for use in the analysis and design of its markets, as well as 
in enforcement of applicable market rules.\126\ CAISO/DMM also states 
that complete e-Tag information, including ultimate physical locational 
specific source and sink information for transactions outside of a 
Balancing Authority, can be critical for assessing the impact of loop 
flows and more effectively incorporating these impacts into market 
modeling assumptions, design features and scheduling rules.\127\ 
According to CAISO/DMM, any Final Rule should require that e-Tag 
information be provided to RTOs and ISOs in the same manner as provided 
to the Commission and the MMUs of RTOs and ISOs.\128\ CAISO/DMM also 
recommends that the Commission consider a method for RTOs and ISOs to 
identify the geographic scope of the e-Tags the RTO or ISO in question 
would require to serve these purposes.\129\
---------------------------------------------------------------------------

    \126\ CAISO/DMM at 3.
    \127\ Id.
    \128\ Id.
    \129\ In this regard, CAISO/DMM states it is not advocating that 
it receive e-Tag information from the Eastern Interconnection. 
CAISO/DMM at 3.
---------------------------------------------------------------------------

    50. PJM/SPP state that, under the E-Tag NOPR, the Commission would 
gain a greater degree of ready access to e-Tag information than the 
system operators who could utilize this data to enhance system 
operations and market efficiency.\130\ According to PJM/SPP, 
Reliability Coordinators, including RTOs and ISOs, receive limited e-
Tag information that only covers interchange transactions into, out of, 
or through their operating footprints.\131\ PJM/SPP assert that access 
to e-Tag data for external transactions would allow them to better 
visualize and analyze the remote sources of the energy flows that may 
impact the area of the system they have responsibility to maintain 
reliably.\132\ PJM/SPP state that ISOs, RTOs and Reliability 
Coordinators could use this information to better predict and react to 
situations when system conditions result in transmission limitations 
impacted by flows to and from areas of the interconnection outside of 
their Control Areas.\133\ PJM/SPP also contend that the current 
limitations on the ability of RTOs, ISOs and Reliability Coordinators 
to analyze and address big picture considerations is the type of 
problem that the Commission identified in its analysis of the April 14, 
2003 electricity blackout.\134\
---------------------------------------------------------------------------

    \130\ PJM/SPP at 1-2.
    \131\ Id. at 4.
    \132\ Id. at 5.
    \133\ Id.
    \134\ Id. at 6.
---------------------------------------------------------------------------

    51. PJM/SPP assert that providing e-Tag data to RTOs, ISOs and 
Reliability Coordinators is consistent with Congress' and the 
Commission's directives under FPA section 215 because it would help 
Reliability Coordinators to discharge their responsibilities to ensure 
reliable operation of their areas.\135\ Furthermore, PJM/SPP argue that 
granting RTOs and ISOs access to complete e-Tags would allow RTOs and 
ISOs to better fulfill their Order No. 2000 obligations by enabling 
them to better evaluate the availability of transmission service 
through a more accurate determination of the impacts of transactions 
occurring elsewhere in the interconnection.\136\ In addition, PJM/SPP 
note that access to complete e-Tags will allow RTOs and ISOs to more 
effectively manage transmission congestion by providing greater 
visibility into the dispatch and transactions in other surrounding 
systems.\137\ Additionally, PJM/SPP comment that such access would 
allow RTOs and ISOs to more efficiently and effectively identify market 
design flaws, monitor the behavior of market participants, and ensure 
the integration of reliability practices within an 
interconnection.\138\ Finally, PJM/SPP argue that access to complete e-
Tags would allow RTOs and ISOs to deal more effectively with 
intraregional and interregional parallel path flows, or loop flows, 
which could potentially jeopardize the reliability of the bulk power 
system.\139\
---------------------------------------------------------------------------

    \135\ Id. at 9.
    \136\ Id. at 12. Order No. 2000 set forth minimum 
characteristics and functions that RTOs are required to satisfy. 
Regional Transmission Organizations, Order No. 2000, FERC Stats. & 
Regs. ] 31,089, at 30,993-94 (1999), order on reh'g, Order No. 2000-
A, FERC Stats. & Regs. ] 31,092 (2000), aff'd sub nom. Pub. Util. 
Dist. No. 1 v. FERC, 272 F.3d 607 (DC Cir. 2001).
    \137\ PJM/SPP at 14.
    \138\ Id. at 16.
    \139\ Id. at 16-18.
---------------------------------------------------------------------------

3. Commission Determination
    52. The Commission will require e-Tag Authors and Balancing 
Authorities to make available to an RTO, ISO or MMU access to complete 
e-Tags, upon request to the e-Tag Author and Balancing Authority. 
Currently, RTOs

[[Page 76376]]

and ISOs receive e-Tag information only for those interchange 
transactions that flow into, out of, or across their operating 
footprints. However, transactions scheduled outside of these entities' 
footprints can physically flow into their footprints and result in loop 
flows that impact both the reliability of their systems and the markets 
that they administer. And, due to congestion and other market impacts 
caused by loop flows, such transactions can have significant financial 
consequences. Thus, providing e-Tag information to RTOs and ISOs can 
assist them in more efficiently operating their systems and their 
markets.
    53. Moreover, as discussed above, when market participants engage 
in conduct that constitutes market violations that cannot be detected 
without e-Tag information, access to the data shown on e-Tags can 
assist MMUs in identifying behavior that may constitute market 
manipulation under FPA section 222 and allow them to refer instances of 
such conduct to the Commission. Sharing e-Tag information with MMUs 
that monitor markets within the United States can aid the Commission 
with its own market surveillance activities because the MMUs may 
provide additional insights to the Commission about potential market 
violations and market issues. Similarly, providing complete e-Tag data 
to RTOs and ISOs may also assist them in identifying and referring to 
the Commission behavior that may constitute market manipulation under 
section 222 and aid the Commission in its market surveillance 
activities. As the Commission has previously recognized, effective 
market monitoring is enhanced by close collaboration between the MMUs, 
RTOs/ISOs, and the Commission's Office of Enforcement during the 
referral process and during investigations.\140\ Currently, as part of 
such collaboration, the Office of Enforcement may elect to share 
investigative information with MMUs, RTOs and ISOs, including 
information from third parties, as long as appropriate measures are 
taken to ensure that such information is not further disclosed and 
remains non-public.\141\ Consistent with the Commission's ability to 
share investigative information with MMUs, RTOs, and ISOs, this Final 
Rule requires that MMUs, RTOs, and ISOs be provided with access to 
complete e-Tag data, upon request to e-Tag Authors and Authority 
Services, subject to appropriate confidentiality restrictions.
---------------------------------------------------------------------------

    \140\ See Southwest Power Pool, Inc., 129 FERC ] 61,163 (2009), 
order on reh'g, 137 FERC ] 61,046, at P 20 (2011).
    \141\ See Southwest Power Pool, Inc., 137 FERC ] 61,046 at P 20.
---------------------------------------------------------------------------

    54. Market Monitors argue that access to e-Tag data should exceed 
the basic ``Tag Dump'' files. We note that the access to complete e-Tag 
data that we are requiring in this Final Rule will exceed the 
information contained in basic ``Tag Dump'' files and must contain 
information on every aspect of the e-Tag, including all applicable e-
Tag IDs, transaction types, market segments, physical segments, profile 
sets, transmission reservations, and energy schedules. We decline the 
Market Monitors' suggestions to prescribe the cost or format for e-Tag 
data because price and formatting can vary depending on the commercial 
data management services provided to users of e-Tag data. Market 
Monitors also suggest that the Commission should require Balancing 
Authorities to make other information available to them apart from e-
Tags to allow for complete loop flow analysis. Although we recognize 
that there may be data in addition to e-Tag data that may be useful for 
performing complete loop flow analyses, the focus of this proceeding is 
on e-Tag data and we find that requiring access to other data is beyond 
the scope of this proceeding.

E. Confidentiality of Data

1. E-Tag NOPR
    55. In the E-Tag NOPR, the Commission proposed to keep the e-Tag 
information confidential and not make it publicly available, except as 
directed by the Commission, or by a court with appropriate 
jurisdiction.\142\ The E-Tag NOPR also sought comment on whether making 
data available to MMUs would raise confidentiality issues or require 
specific confidentiality provisions.\143\
---------------------------------------------------------------------------

    \142\ The Commission noted its view that this data would be 
covered by exemption 4 of the Freedom of Information Act (FOIA), 
which protects ``trade secrets and commercial or financial 
information obtained from a person [that is] privileged or 
confidential.'' E-Tag NOPR, FERC Stats. & Regs. ] 32,675 at P 16 
(citing 5 U.S.C. 552(b)(4) (2006), amended by OPEN Government Act of 
2007, Public Law 110-175, 121 Stat. 2524 (2007)).
    \143\ E-Tag NOPR, FERC Stats. & Regs. ] 32,675 at P 18.
---------------------------------------------------------------------------

2. Comments
    56. Southern argues that the e-Tag data should not be provided to 
MMUs or other entities because the data includes proprietary, 
confidential information that, if disclosed to third parties, could 
result in irreparable harm to Southern Companies and other market 
participants.\144\ Conversely, Market Monitors assert that making e-Tag 
data available to MMUs would not raise confidentiality issues or 
require any specific confidentiality provisions beyond those that 
already exist.\145\ Market Monitors explain that the NERC Tag Dump Data 
is published on the Reliability Coordinator Information System (RCIS) 
page of the NERC Web site and to access such data, entities must sign a 
confidentiality agreement with NERC to obtain access to this secure 
portion of the NERC Web site.\146\ Market Monitors state affording them 
with access to NERC Tag Dump Data would help them study market impacts 
and work to improve market efficiency. To ensure that the market 
monitors have access to this needed information, Market Monitors 
advocate that the Commission issue a clear policy directive finding 
that MMU access to NERC's Tag Dump Data is needed to improve market 
efficiency, competitiveness, operations and design.\147\ EPSA states 
that vendors have confidentiality contracts with market participants 
and, thus, if the Commission finds e-Tag data necessary to its market 
monitoring and enforcement efforts, it will be necessary to explore the 
legal proprietary issues associated with getting the information from 
third party vendors like OATI.\148\
---------------------------------------------------------------------------

    \144\ Southern at 2.
    \145\ Market Monitors Comments at 9.
    \146\ Id.
    \147\ Id.
    \148\ EPSA at 6.
---------------------------------------------------------------------------

    57. DC Energy states that additional confidentiality provisions are 
not necessary and that e-Tag data should be made available to the 
public in a manner similar to Electric Quarterly Report (EQR) 
data.\149\ SoCal Edison comments that, if the Commission decides to 
make e-Tag information available to the public, there should be at 
least a three-month delay.\150\ SoCal Edison states that the general 
public may not have the requisite knowledge to analyze and understand 
e-Tag data and not publicly disclosing e-Tags would avoid 
misinterpretations of the data.\151\
---------------------------------------------------------------------------

    \149\ DC Energy at 3.
    \150\ SoCal Edison at 3.
    \151\ Id. at 4.
---------------------------------------------------------------------------

3. Commission Determination
    58. The Commission recognizes that some of the information 
contained in the e-Tags is likely commercially sensitive.\152\ 
Disclosure of such data as directed in this Final Rule could result in 
competitive harm to market participants and the market as a whole

[[Page 76377]]

if disclosed without reasonable confidentiality restrictions.\153\ 
Accordingly, the Commission will not make complete e-Tags publicly 
available, as suggested by certain commenters. Furthermore, to the 
extent persons file requests to obtain data from the Commission under 
the Freedom of Information Act (FOIA), we expect that any commercially-
sensitive data would be protected from disclosure if it satisfies the 
requirements of FOIA's exemption 4.\154\ In response to EPSA, we note 
that, after the e-Tag Authors and Balancing Authorities designate the 
Commission as an addressee, the Commission will access the e-Tags by 
contract with a commercial vendor, subject to confidentiality 
restrictions.
---------------------------------------------------------------------------

    \152\ Market participants currently treat e-Tags as confidential 
because they contain potentially commercially sensitive information. 
See NAESB Electronic Tagging Functional Specifications, section 
1.4.2.1, Version 1.8.1.1, at 26.
    \153\ The Commission has granted requests for privileged or 
confidential treatment of similar non-public data. See, e.g., New 
York Indep. Sys. Operator, Inc., 131 FERC ] 61,169, at P 15 (2010) 
(granting such treatment for data relating to specific generator or 
other equipment details, transmission system information, bidding 
strategies, generator reference levels, generator costs, guarantee 
payments, and the associated relevant time periods); see also S. 
Cal. Edison Co., 135 FERC ] 61,201, at P 20 (2011); Hydrogen Energy 
Cal. LLC, 135 FERC ] 61,068, at P 25 (2011); New York Indep. Sys. 
Operator, Inc., 130 FERC ] 61,029, at P 3 (2010).
    \154\ FOIA exemption 4 protects ``trade secrets and commercial 
or financial information obtained from a person [that is] privileged 
or confidential.'' 5 U.S.C. 552(b)(4) (2006), amended by Open 
Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (2007); 
accord 18 CFR 338.107(d).
---------------------------------------------------------------------------

    59. While the Commission finds that e-Tag data should be made 
available to RTOs, ISOs, and MMUs, this should be done subject to 
appropriate confidentiality restrictions. Furthermore, the Commission 
notes that such information may be shared among RTOs, ISOs and MMUs as 
part of an investigation of possible market violations or market design 
flaws as long as reasonable measures are taken to ensure that the 
information remains non-public.\155\
---------------------------------------------------------------------------

    \155\ See Southwest Power Pool, Inc., 129 FERC ] 61,163 (2009), 
order on reh'g, 137 FERC ] 61,046 (2011); New York Indep. Sys. 
Operator, Inc., 136 FERC ] 61,116 (2011).
---------------------------------------------------------------------------

III. Information Collection Statement

    60. The Office of Management and Budget's (OMB) regulations require 
approval of certain information collection requirements imposed by 
agency rules.\156\ Upon approval of a collection 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.
---------------------------------------------------------------------------

    \156\ 5 CFR 1320.11.
---------------------------------------------------------------------------

    61. The Commission is submitting these reporting requirements to 
OMB for its review and approval under section 3507(d) of the Paperwork 
Reduction Act of 1995.\157\ The Commission solicited comments in the E-
Tag NOPR on the need for and purposes of the information and the 
corresponding burden on the public. Several commenters filed comments 
related to the need for and purposes of the information. These comments 
are addressed in the body of this rule. Trade Associations filed the 
sole comment challenging the burden estimate in the E-Tag NOPR, arguing 
that the burden estimate was understated.
---------------------------------------------------------------------------

    \157\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------

    62. The Commission has modified burden estimates in this Final 
Rule, relative to the E-Tag NOPR, to reflect that now e-Tag Authors and 
Balancing Authorities, rather than NERC, will provide Commission access 
to e-Tags.
    63. The Commission expects that e-Tag Authors and Balancing 
Authorities will use existing, largely automated procedures \158\ to 
provide Commission access to e-Tags. Commission access to e-Tag data 
can be accomplished by the Agent Service simply including the 
Commission on the list of entities with view-only rights to the e-Tags 
and the Authority Service validating the inclusion of the Commission on 
the e-Tags before they are delivered to a Commission-designated 
address. Thus, existing procedures can allow for ready Commission 
access to e-Tags.
---------------------------------------------------------------------------

    \158\ Existing e-Tag procedures are designed to be largely 
automated. For example, the specifications state that the Authority 
Service ``is primarily an automated manager of data that should 
require little manual intervention.'' See NAESB Electronic Tagging 
Functional Specifications, Version 1.8.1, section 3.3, at 62.
---------------------------------------------------------------------------

    64. We have provided burden estimate calculations that assume a 
manual process for the e-Tag Author to list the Commission as an 
addressee on applicable e-Tags. These burden estimate calculations 
consider how long it would take for each e-Tag Author to manually 
select the Commission, as an addressee and the Balancing Authority to 
similarly validate the inclusion of the Commission, as an addressee. We 
have estimated these tasks would take four seconds and one second for 
each new e-Tag request, respectively.
    65. But we believe the burden estimates we have provided, in fact, 
overstate the total burden associated with this rule. Rather than 
relying on a process in which e-Tag Authors manually select the 
Commission as an addressee, we anticipate the limited number of e-Tag 
service providers will in practice opt to incorporate a one-time change 
to existing e-Tag software, enabling the Commission, to be included 
automatically. However, we will use the estimates provided below in our 
submittal to OMB for approval. We will consider whether to modify the 
burden estimates to reflect automation when the information collection 
is reviewed again to extend OMB approval.
    Public Reporting Burden: Our estimate below regarding the number of 
respondents is based on data from the NERC TSIN registry.\159\ The TSIN 
registry was used to list entities eligible be listed on an e-Tag as 
well as specify a delivery address for these possible addressees. Using 
the TSIN registry, Commission staff identified 1,540 possible e-Tag 
Authors and 163 Balancing Authorities. The Commission estimates the 
number of new e-Tag submission requests to be around six million per 
year.
---------------------------------------------------------------------------

    \159\ The NERC TSIN Registry was recently replaced by the OATI 
webRegistry.

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

[[Page 76378]]

[GRAPHIC] [TIFF OMITTED] TR28DE12.010

    Total Net Annual Cost: The Commission has assumed that e-Tag 
Authors and Balancing Authorities rely on a mix of operations managers, 
computer information systems managers, compliance officers, and other 
operations specialists who are involved in creating and validating e-
Tags.\160\ Based on this personnel assumption, we used data from the 
U.S. Bureau of Labor Statistics and calculated an hourly compliance 
cost for this Final Rule. The hourly figure we arrived at was $59.76/
hour, placing total annual compliance around $498,000 per year for all 
e-Tag Authors and Balancing Authorities.\161\ Again, this estimate 
assumes a manual process, which leads to a larger burden than would 
likely occur in practice.
---------------------------------------------------------------------------

    \160\ Only occupation data from May 2011 under NAICS code 221100 
(Electric Power Generation, Transmission and Distribution) was 
relied upon. We looked at the following occupations, which are 
followed, in parenthesis, by their Standard Occupational 
Classification code, hourly mean wage, and our assigned weighting: 
General and Operations Managers (111021, $59.15, \1/6\); Computer 
and Information Systems Managers (113021, $54.18, \1/6\), Compliance 
Officers (131041, $35.76, \1/3\); and, Business Operations 
Specialist All Other (131199, $33.79, \1/3\).
    \161\ We also adjust hourly wage information to reflect employer 
costs not related to wages and salaries. That adjustment is based on 
BLS data, citing that wages represent 70.4 percent of employer costs 
for the private industry, see http://www.bls.gov/news.release/ecec.nr0.htm.
---------------------------------------------------------------------------

    Title: FERC-740, Availability of E-Tag Information to Commission 
Staff.
    Action: New collection.
    OMB Control No.: 1902-0254.
    Respondents: Businesses or other for-profit institutions, not-for-
profit institutions.
    Frequency of Responses: On occasion.
    Necessity of the Information: This Final Rule will provide the 
Commission, MMUs, RTOs, and ISOs with information that will allow them 
to perform market surveillance and analysis more effectively. This 
information is necessary to understand the use of the interconnected 
electricity grid, particularly transactions occurring at interchanges. 
Due to the nature of the electricity grid, an individual transaction's 
impact on an interchange cannot be assessed adequately in all cases 
without information from all connected systems, which is included in 
the e-Tags. The details of the physical path of a transaction included 
in the e-Tags will help the Commission to monitor, in particular, 
interchange transactions effectively, detect and prevent price 
manipulation over interchanges, and ensure the efficient and orderly 
use of the transmission grid. Moreover, access to e-Tag data will allow 
MMUs, RTOs and ISOs to better identify behavior that may constitute 
market manipulation under FPA section 222 and allow them to refer 
instances of such conduct to the Commission. Sharing e-Tag information 
with MMUs, RTOs and ISOs also can aid the Commission in its own market 
surveillance, by bringing to the Commission's attention problems 
identified by these entities.
    Internal Review: The Commission has reviewed the information 
collection requirements and has determined, as discussed above, that 
its action in this proceeding is necessary to implement the 
Commission's responsibilities under the Federal Power Act.
    66. Interested persons may obtain information on the reporting 
requirements by contacting the following: Federal Energy Regulatory 
Commission, 888 First Street NE., Washington, DC 20426 [Attention: 
Ellen Brown, Office of the Executive Director, email: 
DataClearance@ferc.gov, phone: (202) 502-8663, fax: (202) 273-0873].
    67. For submitting comments concerning the collection of 
information and the associated burden estimate, please send your 
comments to the Office of Management and Budget, Office of Information 
and Regulatory Affairs, Washington, DC 20503 [Attention: Desk Officer 
for the Federal Energy Regulatory Commission, phone: (202) 395-4718, 
fax: (202) 395-7285]. For security reasons, comments to OMB should be 
submitted by email to: oira_submission@omb.eop.gov. Comments submitted 
to OMB should include Docket Number RM11-12 and OMB Control Number 
1902-0254.

IV. Regulatory Flexibility Act

    68. The Regulatory Flexibility Act of 1980 (RFA) \162\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The RFA mandates consideration of regulatory alternatives that 
accomplish the stated objectives of a proposed rule and that minimize 
any significant economic impact on a substantial number of small 
entities. The Small Business Administration's (SBA) Office of Size 
Standards develops the numerical definition of a small business.\163\ 
The SBA has established a size standard for electric utilities, stating 
that a firm is small if, including its affiliates, it is primarily 
engaged in the transmission, generation and/or distribution of electric 
energy for sale and its total electric output for the preceding twelve 
months did not exceed four million megawatt hours.\164\ Trade 
Associations argue that any burden estimate must also consider the 
burden on entities submitting the data, a number of which may be 
considered small entities for purposes of the Regulatory Flexibility 
Act of 1980.
---------------------------------------------------------------------------

    \162\ 5 U.S.C. 601-612.
    \163\ 13 CFR 121.101.
    \164\ 13 CFR 121.201, Sector 22, Utilities & n.1.
---------------------------------------------------------------------------

    69. The Final Rule provides the Commission with access to e-Tag 
data. It will be applicable to e-Tag Authors and Balancing Authorities. 
The

[[Page 76379]]

Information Collection Statement above provides information about the 
number of registered e-Tag Authors and Balancing Authorities. However, 
a given company, and indeed a given holding company, may have multiple 
e-Tag Author registrations. Likewise, e-Tag registration data do not 
contain company size information and are not readily comparable to 
other data that do. That said, using 2011 data submitted to the Energy 
Information Administration on Form EIA-861, the Commission estimates 
that there are 503 holding companies that could have one or more 
registered e-Tag Authors. Of those 503 holding companies, the 
Commission estimates that perhaps as many as 353 are small entities 
because their total annual sales are less than 4,000,000 MWh. 
Comparison of the NERC compliance registry with data submitted to the 
Energy Information Administration on Form EIA-861 indicates that 
perhaps as many as 18 small entities are registered as Balancing 
Authorities. As estimated above, total annual compliance costs, which 
we believe are overstated, amount to about $498,000 per year for all e-
Tag Authors and Balancing Authorities. When spreading those costs 
across many entities, both small and otherwise, the Commission does not 
anticipate that significant costs will be borne by any small entity. 
Accordingly, the Commission certifies that the Final Rule will not have 
a significant economic impact on a substantial number of small 
entities.

V. Document Availability

    70. 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 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, 
Washington, DC 20426.
    71. 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.
    72. User assistance is available for eLibrary and the Commission's 
Web site 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.

VI. Effective Date and Congressional Notification

    73. These regulations are effective February 26, 2013. 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 366

    Electric power, and reporting and recordkeeping requirements.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
    In consideration of the foregoing, the Commission amends Part I, 
Title 18, Part 366 of the Code of Federal Regulations, as follows:

PART 366--BOOKS AND RECORDS

0
1. The authority citation for part 366 continues to read as follows:

    Authority:  15 U.S.C. 717 et seq., 16 U.S.C. 791a et seq., and 
42 U.S.C. 16451-16463.


0
2. In Sec.  366.2, redesignate paragraph (d) as paragraph (e), and add 
new paragraph (d), to read as follows:


Sec.  366.2  Commission access to books and records.

* * * * *
    (d) E-Tag Authors and Balancing Authorities. E-Tag Authors and 
Balancing Authorities must take appropriate steps to ensure Commission 
view-only access to complete electronic tags (e-Tags), or any successor 
to e-Tags, used to schedule the transmission of electric power in 
wholesale markets, by designating the Commission as an addressee on the 
e-Tags. E-Tag Authors must include the Commission on the list of 
entities with view-only rights to the e-Tags. Balancing Authorities 
located within the United States must validate the inclusion of the 
Commission on the e-Tag before those e-Tags are electronically 
delivered to an address specified by the Commission. The complete e-Tag 
data to be made available under this section shall consist of:
    (1) e-Tags for interchange transactions scheduled to flow into, out 
of or within the United States' portion of the Eastern or Western 
Interconnections, or into the Electric Reliability Council of Texas 
from the United States' portion of the Eastern or Western 
Interconnection; or from the Electric Reliability Council of Texas into 
the United States' portion of the Eastern or Western Interconnection; 
and
    (2) Information on every aspect of the e-Tag, including all 
applicable e-Tag IDs, transaction types, market segments, physical 
segments, profile sets, transmission reservations, and energy 
schedules. In addition, e-Tag Authors and Balancing Authorities must 
also make available, upon request to the e-Tag Authors and Balancing 
Authorities, access to the complete e-Tags, or any successor to e-Tags, 
used to schedule the transmission of electric power in wholesale 
markets, to Regional Transmission Organizations, Independent System 
Operators, and their Market Monitoring Units, on an ongoing basis, 
subject to appropriate confidentiality restrictions.
* * * * *

    Note: Appendix will not be published in the Code of Federal 
Regulations.

Appendix

                           List of Commenters*
------------------------------------------------------------------------
            Commenter                      Short name or acronym
------------------------------------------------------------------------
1 American Public Power            Trade Associations
 Association, Edison Electric
 Institute, Large Public Power
 Council, National Rural Electric
 Cooperative Association.
2 California Independent System    CAISO/DMM
 Operator Corporation and
 California Independent System
 Operator Corporate Department of
 Market Monitoring.
3 DC Energy, LLC.................  DC Energy
4 Electric Power Supply            EPSA
 Association.
5 Modesto Irrigation District....  MID
6 North American Reliability       NERC
 Corporation.

[[Page 76380]]

 
7 Monitoring Analytics, LLC,       Market Monitors**
 Potomac Economics, Ltd, Internal
 Market Monitor for ISO--New
 England, Market Monitoring and
 Analysis for Southwest Power
 Pool, Inc., Market Assessment
 and Compliance for Independent
 Electricity System Operator,
 Market Surveillance
 Administrator.
8 PJM Interconnection, L.L.C. and  PJM/SPP
 Southwest Power Pool, Inc.
9 Pennsylvania Public Utility      Pa Commission
 Commission.
10 Powerex Corp..................  Powerex
11 Ronald Rattey.................  Ronald Rattey
12 Southern California Edison      SoCal Edison
 Company.
13 Southern Company Services, Inc  Southern
14 Western Electricity             WECC
 Coordinating Council.
------------------------------------------------------------------------
* In addition, Public Service Electric and Gas Company and PSEG Energy
  Resources & Trade LLC filed a motion to intervene without comments.
** Market Monitors filed motion for leave to file reply comments and
  reply comments in support of access to e-Tags by Reliability
  Coordinators comparable to that for Commission and MMUs. Reply
  comments were also filed by the North American Energy Standards Board.

[FR Doc. 2012-31087 Filed 12-27-12; 8:45 am]
BILLING CODE 6717-01-P


