Federal Register: May 6, 2010 (Volume 75, Number 87)
DOCID: fr06my10-16 FR Doc 2010-10500
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
CFR Citation: 18 CFR Part 37
Docket ID: [Docket No. RM10-22-000]
NOTICE: PROPOSED RULES
DOCUMENT ACTION: Notice of Proposed Rulemaking.
Promoting a Competitive Market for Capacity Reassignments
DATES: Comments are due July 6, 2010.
Based on the Commission's experience to date and a two-year study, released April 15, 2010, the Federal Energy Regulatory Commission proposes in this Notice of Proposed Rulemaking to lift the price cap for all transmission customers reassigning transmission capacity beyond October 1, 2010. The reforms proposed in this order are intended to facilitate the development of a market for capacity reassignments as a competitive alternative to primary capacity.
Promoting Competitive Market for Capacity Reassignments
DOCUMENT BODY 2:
April 29, 2010.
1. Based on the Commission's experience to date and a twoyear
study, released April 15, 2010,\1\ the Federal Energy Regulatory
Commission (Commission) proposes in this Notice of Proposed Rulemaking
(NOPR) to lift the price cap for all transmission customers reassigning
transmission capacity beyond October 1, 2010. The reforms proposed in
this order are intended to facilitate the development of a market for
capacity reassignments as a competitive alternative to primary capacity.
\1\ FERC Staff, Staff Findings on Capacity Reassignment (2010), available at: http://www.ferc.gov (Staff Report). I. Background
2. In Order No. 888, the Commission concluded that a transmission
provider's pro forma Open Access Transmission Tariff (OATT) must
explicitly permit the voluntary reassignment of all or part of a
holder's firm pointtopoint capacity rights to any eligible
customer.\2\ The Commission also found that allowing holders of firm
transmission capacity rights to reassign capacity would help parties
manage the financial risks associated with their longterm commitment,
reduce the market power of transmission providers by enabling customers to compete, and foster efficient capacity allocation.
\2\ Promoting Wholesale Competition Through Open Access Non Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ] 31,036, at 31,696 (1996), order on reh'g, Order No. 888A, 62 FR 12274 (Mar. 14, 1997), FERC Stats. & Regs. ] 31,048 (1997), order on reh'g, Order No. 888B, 81 FERC ] 61,248 (1997), order on reh'g, Order No. 888C, 82 FERC ] 61,046 (1998), aff'd in relevant part sub nom. Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (DC Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).
3. With respect to the appropriate rate for capacity reassignment,
the Commission concluded it could not permit reassignments at market
based rates because it was unable to determine that the market for
reassigned capacity was sufficiently competitive so that assignors
would not be able to exert market power. Instead, the Commission capped
the rate at the highest of (1) the original transmission rate charged
to the purchaser (assignor), (2) the transmission provider's maximum
stated firm transmission rate in effect at the time of the
reassignment, or (3) the assignor's own opportunity costs capped at the
cost of expansion (price cap). The Commission further explained that
opportunity cost pricing had been permitted at ``the higher of embedded
costs or legitimate and verifiable opportunity costs, but not the sum of the two (i.e., `or' pricing is permitted;
`and' pricing is not).'' \3\ In Order No. 888A, the Commission explained that opportunity costs for capacity reassigned by a customer should be measured in a manner analogous to that used to measure the transmission provider's opportunity cost.\4\
\3\ Order No. 888, FERC Stats. & Regs. ] 31,036 at 31,740. \4\ Order No. 888A, FERC Stats. & Regs. ] 31,048 at 30,224.
4. To foster the development of a more robust secondary market for
transmission capacity, the Commission, in Order No. 890, concluded that
it was appropriate to lift the price cap for all transmission customers
reassigning transmission capacity.\5\ The Commission stated that this
would allow capacity to be allocated to those entities that value it
most, thereby sending more accurate price signals to identify the
appropriate location for construction of new transmission facilities to
reduce congestion.\6\ The Commission also found that market forces,
combined with the requirements of the pro forma OATT as modified in
Order No. 890, would limit the ability of assignors to exert market power, including affiliates of the transmission provider.
\5\ Preventing Undue Discrimination and Preference in
Transmission Service, Order No. 890, 72 FR 12266 (Mar. 15, 2007), FERC Stats. & Regs. ] 31,241, at P 808 (2007), order on reh'g, Order No. 890A, 73 FR 2984 (Jan. 16, 2008), FERC Stats. & Regs. ] 31,261 (2007), order on reh'g, Order No. 890B, 123 FERC ] 61,299 (2008), order on reh'g, Order No. 890C, 126 FERC ] 61,228 (2009), order on reh'g, Order No. 890D, 129 FERC ] 61,126 (2009).
\6\ Order No. 890, FERC Stats. & Regs. ] 31,241 at P 808.
5. To enhance oversight and monitoring activities, the Commission
adopted reforms to the underlying rules governing capacity
reassignments.\7\ First, the Commission required that all sales or
assignments of capacity be conducted through or otherwise posted on the
transmission provider's OASIS on or before the date the reassigned
service commences.\8\ Second, the Commission required that assignees of
transmission capacity execute a service agreement prior to the date on
which the reassigned service commences.\9\ Third, in addition to
existing OASIS posting requirements, the Commission required
transmission providers to aggregate and summarize in an electric
quarterly report the data contained in these service agreements.\10\ \7\ Id. P 815.
\9\ Id. P 816.
\10\ Id. P 817.
6. The Commission also directed staff to closely monitor the
reassignmentrelated data submitted by transmission providers in their
quarterly reports to identify any problems in the development of the
secondary market for transmission capacity and, in particular, the
potential exercise of market power.\11\ Thus, the Commission directed
staff to prepare, within six months of receipt of two years of
quarterly reports, a report summarizing its findings.\12\ In addition,
the Commission encouraged market participants to provide feedback
regarding the development of the secondary capacity market and, in
particular, to contact the Commission's Enforcement Hotline if concerns arise.
\11\ Id. P 820.
7. In Order No. 890A, the Commission affirmed its decision to
remove the price cap on reassignments of transmission capacity but
granted rehearing to limit the period during which reassignments may
occur above the cap.\13\ The Commission concluded that it would be most
appropriate to lift the price cap on reassignments of capacity only to
accommodate the Commission staff study period. Accordingly, the
Commission amended section 23.1 of the pro forma OATT to reinstate the
price cap as of October 1, 2010.\14\ The Commission stated that, upon
review of the staff report and any feedback from the industry, the
Commission would determine whether it would be appropriate to continue
to allow reassignments of capacity above the price cap beyond that date.
\13\ Order No. 890A, FERC Stats. & Regs. ] 31,261 at P 388, 390.
\14\ Id. P 390.
8. The Commission also clarified that, as of the effective date of the reforms adopted in Order No. 890, all reassignments of capacity must take place under the terms and conditions of the transmission provider's OATT. As a result, there was no longer a need for the assigning party to have on file with the Commission a rate schedule governing reassigned capacity. To the extent that a reseller has a marketbased rate tariff on file, the provisions of that tariff, including a price cap or reporting obligations, will not apply to the reassignment since such transactions no longer take place pursuant to the authorization of that tariff.
9. In Order No. 890B, the Commission clarified that the pro forma
OATT does not, and will not, permit the withholding of transmission
capacity by the transmission provider and that it effectively
establishes a price ceiling for longterm reassignments at the
transmission provider's cost of expanding its system.\15\ The
Commission further found that the fact that a transmission provider's
affiliate may profit from congestion on the system does not relieve the
transmission provider of its obligation to offer all available
transmission capacity and expand its system as necessary to accommodate
requests for service.\16\ The Commission pointed out that customers
that do not wish to participate in the secondary market may continue to
take service from the transmission provider directly, just as if the price cap had not been lifted.\17\
\15\ Order No. 890B, 123 FERC ] 61,299 at P 78.
\17\ Id. P 79.
10. With regard to the report to be prepared by Commission staff, the Commission clarified that staff should focus on the competitive effects of removing the price cap for reassigned capacity.\18\ The Commission stated that staff should consider the number of reassignments occurring over the study period, the magnitude and variability of resale prices, the term of the reassignments, and any relationship between resale prices and price differentials in related energy markets. In addition, the Commission directed staff to examine the nature and scope of reassignments undertaken by the transmission provider's affiliates and include in its report any evidence of abuse in the secondary market for transmission capacity, whether by those affiliates or other customers.
\18\ Id. P 83.
11. The Commission also granted rehearing and directed transmission
providers to include in their electric quarterly reports the identity
of the reseller and indicate whether the reseller is affiliated with
the transmission provider.\19\ The Commission also directed each
transmission provider to include in their electric quarterly reports
the rate that would have been charged under its OATT had the secondary
customer purchased primary service from the transmission provider for
the term of the reassignment.\20\ The Commission directed transmission
providers to submit this additional data for all resales during the
study period and to update, as necessary, any previouslyfiled electric
quarterly reports on or before the date they submitted their next electric quarterly reports.
\19\ Id. P 84.
12. Based on the Commission's experience and the twoyear study, the
Commission proposes to permanently remove the price cap on the reassignments of capacity and revise section 23 of the pro forma OATT accordingly, as indicated in Appendix A. In addition, the Commission proposes to direct transmission providers to submit corresponding revisions to their OATT's within 30 days of publication of the Final Rule in the Federal Register.
13. The secondary market for capacity reassignments experienced strong growth during the study period. Both the number of transactions and capacity volume reassigned rose throughout the two and one half year time span. The number of reassignments increased dramatically from just over 200 in 2007 to almost 32,000 in 2009. Almost 36 TWh flowed on reassigned paths in 2009, up from 3 TWh in 2007. Moreover, the majority of resale prices, 99 percent, were at or below the price cap. While few of the reassignments were at prices above the cap, it appears from the data that reassignment prices comported with pricing differentials between markets. For instance, there were numerous reassignments between points in New England and Quebec with prices comparable to the average spread in energy prices between the regions. These data suggest that resale prices reflect market fundamentals rather than the exercise of market power.
14. During the study period, there were 32 transactions of reassigned capacity by an affiliate of a transmission provider reassigned for more than the tariff rate. However, the percentage of such overcap reassignments (0.5 percent) was in line with that of overcap reassignments by nonaffiliates (0.4 percent), leading us to believe that affiliate abuse is not an issue. For these reasons, the Commission proposes to find that the Staff Report supports the Commission's decision to lift the price cap beyond October 1, 2010 on all capacity reassignments.
15. The Commission seeks comment on this proposal. Additionally,
given that the levels of reassignment and growth of reassignment varies
substantially across transmission providers, we believe that there is
significant potential for further growth in the reassignment of
capacity. Accordingly, the Commission also seeks comments as to whether
there are any other reforms that it should undertake to create a more
efficient and vibrant secondary market for transmission capacity. Are
there nonprice limitations or regional factors that may be continuing
to limit the utility of reassignment? To the extent any limitations
exist, the Commission seeks comment on how they should be addressed.
For example, are there reforms to the redirect process that would
enable all firm customers to use their firm capacity more flexibly and
thereby facilitate capacity reassignment by making point changes by the
buyer of reassigned capacity more efficient? In the natural gas
industry, the Commission has established a system of secondary firm
point priorities to provide greater flexibility in the use of firm
capacity.\21\ We request comment on whether such an approach could be
used effectively in the electric industry and what impact, if any such an approach would have on system operations.
\21\ Secondary firm priority means that the shipper has scheduling rights to a new point that are superior to interruptible service but inferior to primary firm service for shippers using points specified in their contract. The use of secondary firm service enables shippers obtaining reassigned capacity to establish alternate firm capacity points. See Pipeline Service Obligations and Revisions to Regulations Governing SelfImplementing Transportation; and Regulation of Natural Gas Pipelines After Partial Wellhead Decontrol, Order No. 636, 57 FR 13,267 (Apr. 16, 1992), FERC Stats. & Regs. ] 30,939, at 30,428 (1992), order on reh'g, Order No. 636A, 57 FR 36,128 (Aug. 12, 1992), FERC Stats. & Regs. ] 30,950 (1992), order on reh'g, Order No. 636B, 57 FR 57,911 (Dec. 8, 1992), 61 FERC ] 61,272 (1992), order on reh'g, 62 FERC ] 61,007 (1993), aff'd in part and remanded in part sub nom. United Distribution Cos. v. FERC, 88 F.3d 1105 (DC Cir. 1996), order on remand, Order No. 636C, 62 FR 10,204 (Mar. 6, 1997), 78 FERC ] 61,186 (1997); see also Regulation of ShortTerm Natural Gas Transportation Services and Regulation of Interstate Natural Gas Transportation Services, Order No. 637, 65 FR 10,156 (Feb. 25, 2000), FERC Stats. & Regs. ] 31,091, at 31,30431,306, clarified, Order No. 637A, 65 FR 35,706 (June 5, 2000), FERC Stats. & Regs. ] 31,099, reh'g denied, Order No. 637B, 65 FR 47,284 (Aug. 2, 2000), 92 FERC ] 61,062 (2000), aff'd in part and remanded in part sub nom. Interstate Natural Gas Ass'n of America v. FERC, 285 F.3d 18, 350 U.S. App. DC 366 (DC Cir. 2002), order on remand, 101 FERC ] 61,127 (2002), order on reh'g, 106 FERC ] 61,088 (2004), aff'd sub nom. American Gas Ass'n v. FERC, 428 F.3d 255, 368 U.S. App. DC 176 (DC Cir. 2005).
16. As discussed above, we propose to find that the Commission Staff Report supports the Commission's belief that there are no significant market power concerns to justify retaining price caps for any transmission customer.\22\ With regard to affiliate abuse, the Staff Report finds that less than one percent of transactions performed by affiliates during the study period were transacted above the tariff rate during the study period. While staff did not detect affiliate abuse associated with reassignment by affiliates of the transmission provider during the study period, the Commission seeks comment on whether market participants have experienced any such affiliate abuse that would argue for maintaining the price cap on affiliates of the transmission provider, or if other safeguards are needed for such reassignments. How should reassignment by a transmission provider's retail service function (that is not a separate affiliate) be treated? \22\ See Order No. 890, FERC Stats. & Regs. ] 31,241 at P 809 (stating that based on ten years of experience regulating capacity reassignments, the Commission believes there are no significant market power concerns to justify retaining the price caps for any transmission customer).
17. Based on the Commission's experience and the twoyear study,
the Commission believes that the absence of a price cap for
transmission capacity reassignment does not present any major market
concerns. Nevertheless, the Commission is committed to ensuring just
and reasonable transmission service that is not unduly discriminatory
or preferential and, therefore, will continue to monitor the secondary
market of capacity reassignments for evidence of abuse of market power.
The Commission receives sufficient information to monitor the secondary
market for capacity reassignment because pursuant to section 23 of the
pro forma OATT: (1) All sales of capacity must be conducted through or
otherwise posted on the transmission provider's OASIS on or before the
date of service; and, (2) assignees of transmission capacity must
execute a service agreement prior to the date on which the reassigned
service commences. In addition, transmission providers must aggregate
and summarize in an electric quarterly report the data contained in these service agreements.\23\
\23\ 18 CFR 35.10b; see also, Order No. 890, FERC Stats. & Regs. ] 31,241 at P 817; Notice Providing Guidance on the Filing of Information on Transmission Capacity Reassignments in Electric Quarterly Reports, 124 FERC ] 61,244 (2008).
III. Information Collection Statement
18. The following collection of information contained in this
proposed rule is subject to review by the Office of Management and
Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of
1995.\24\ OMB's regulations require OMB to approve certain information collection requirements imposed by agency rule.\25\
\24\ 44 U.S.C. Sec. 3507(d) (2000).
\25\ 5 CFR 1320.11 (2009).
Burden Estimate: The public reporting and records retention burdens
for the proposed reporting requirements and the records retention requirement are as follows.\26\
\26\ These burden estimates apply only to this NOPR and do not reflect upon all of FERC516 or FERC717.
Number of Number of Hours per Total annual Data collection respondents responses response hours Conforming tariff changes................... 176 1 10 1,760
Cost to Comply: $200,640. 1,760 hours @ $114 an hour (average cost of attorney ($200 per hour), consultant ($150), technical ($80), and administrative support ($25)).
OMB's regulations require it to approve certain information collection requirements imposed by an agency rule. The Commission is submitting notification of this proposed rule to OMB. If the proposed requirements are adopted they will be mandatory requirements.
Title: FERC516, Electric Rate Schedules and Tariff Filings; FERC
717, Standards for Business Practices and Communication Protocols for Public Utilities.
Action: Proposed Collections.
OMB Control Nos. 19020096 and 19020173.
Respondents: Transmission Providers.
Frequency of responses: One time.
Necessity of the Information:
19. The Federal Energy Regulatory Commission is proposing amendments to the pro forma OATT to ensure that transmission services are provided on a basis that is just, reasonable and not unduly discriminatory or preferential. The purpose of this proposed rulemaking is to strengthen the pro forma OATT by encouraging more robust competition. We propose to achieve this goal by removing the price cap previously imposed on reassignments of transmission capacity.
20. 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: Michael Miller, Office of the Executive Director, Phone: (202) 502 8415, fax: (202) 2730873, email: firstname.lastname@example.org]
21. For submitting comments concerning the collections of information and the associated burden estimate(s), please send your comments to the contact listed above and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 3954650, fax: (202) 3957285. Due to security concerns, comments should be sent electronically to the following email address: oira_ email@example.com. Please reference the docket number of this proposed rulemaking in your submission.
IV. Environmental Analysis
22. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\27\ The
Commission concludes that neither an Environmental Assessment nor an
Environmental Impact Statement is required for this NOPR under section
380.4(a)(15) of the Commission's regulations, which provides a
categorical exemption for approval of actions under sections 205 and
206 of the FPA relating to the filing of schedules containing all rates
and charges for the transmission or sale subject to the Commission's
jurisdiction, plus the classification, practices, contracts and
regulations that affect rates, charges, classifications and services.\28\
\27\ Order No. 486, Regulations Implementing the National Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations Preambles 19861990 ] 30,783 (1987).
\28\ 18 CFR 380.4(a)(15) (2009).
V. Regulatory Flexibility Act Analysis
23. The Regulatory Flexibility Act of 1980 (RFA) \29\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
This proposed rule would apply to public utilities that own, control or
operate interstate transmission facilities, not to electric utilities
per se. The total number of public utilities that, absent waiver, would
have to modify their current OATTs by filing the revised pro forma OATT
is 176.\30\ Of these only six public utilities, or less than two
percent, dispose of four million MWh or less per year.\31\ The
Commission does not consider this a substantial number, and in any
event, these small entities may seek waiver of these requirements.\32\
Moreover, the criteria for waiver that would be applied under this
rulemaking for small entities is unchanged from that used to evaluate
requests for waiver under Order Nos. 888 and 889. Thus, small entities
who have received waiver of the requirements to have on file an open
access tariff or to operate an OASIS would be unaffected by the requirements of this proposed rulemaking.
\29\ 5 U.S.C. 601612.
\30\ The sources for this figure are FERC Form No. 1 and FERC Form No. 1F data.
\32\ The Regulatory Flexibility Act defines a ``small entity'' as ``one which is independently owned and operated and which is not dominant in its field of operation.'' See 5 U.S.C. 601(3) and 601(6)(2000); 15 U.S.C. 632(a)(1) (2000). In MidTex Elec. Coop. v. FERC, 773 F.2d 327, 340343 (DC Cir. 1985), the court accepted the Commission's conclusion that, since virtually all of the public utilities that it regulates do not fall within the meaning of the term ``small entities'' as defined in the Regulatory Flexibility Act, the Commission did not need to prepare a regulatory flexibility analysis in connection with its proposed rule governing the allocation of costs for construction work in progress (CWIP). The CWIP rules applied to all public utilities. The revised pro forma OATT will apply only to those public utilities that own, control or operate interstate transmission facilities. These entities are a subset of the group of public utilities found not to require preparation of a regulatory flexibility analysis for the CWIP rule. VI. Comment Procedures
24. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due July 6, 2010. Comments must refer to Docket No. RM1022000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments.
25. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's Web site at http://
www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software should be filed in native applications or printtoPDF [[Page 24832]]
format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.
26. Commenters that are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Office of the Secretary, 888 First Street, NE., Washington, DC 20426.
27. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. VII. Document Availability
28. 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 FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
29. From FERC'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.
30. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from FERC Online Support at (202) 5026652 (toll free at 18662083676) or email at
firstname.lastname@example.org, or the Public Reference Room at (202) 502 8371, TTY (202) 5028659. Email the Public Reference Room at email@example.com. List of Subjects in 18 CFR Part 37
By direction of the Commission.
Nathaniel J. Davis, Sr.,
Note: The following appendix will not appear in the Code of Federal Regulations.
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FOR FURTHER INFORMATION CONTACT
Laurel Hyde (Technical Information), Office of Energy Market
Regulation, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 5028146,
A. Cory Lankford (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 5026711.