[Senate Hearing 111-752]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 111-752

                FINANCIAL DERIVATIVES ON ENERGY MARKETS

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                                   TO

  EXAMINE FINANCIAL TRANSMISSION RIGHTS AND OTHER ELECTRICITY MARKET 
                               MECHANISMS

                               __________

                             MARCH 9, 2010








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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                  JEFF BINGAMAN, New Mexico, Chairman

BYRON L. DORGAN, North Dakota        LISA MURKOWSKI, Alaska
RON WYDEN, Oregon                    RICHARD BURR, North Carolina
TIM JOHNSON, South Dakota            JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana          SAM BROWNBACK, Kansas
MARIA CANTWELL, Washington           JAMES E. RISCH, Idaho
ROBERT MENENDEZ, New Jersey          JOHN McCAIN, Arizona
BLANCHE L. LINCOLN, Arkansas         ROBERT F. BENNETT, Utah
BERNARD SANDERS, Vermont             JIM BUNNING, Kentucky
EVAN BAYH, Indiana                   JEFF SESSIONS, Alabama
DEBBIE STABENOW, Michigan            BOB CORKER, Tennessee
MARK UDALL, Colorado
JEANNE SHAHEEN, New Hampshire

                    Robert M. Simon, Staff Director
                      Sam E. Fowler, Chief Counsel
               McKie Campbell, Republican Staff Director
               Karen K. Billups, Republican Chief Counsel












                            C O N T E N T S


                              ----------                              

                               STATEMENTS

                                                                   Page

Bingaman, Hon. Jeff, U.S. Senator From New Mexico................     1
Brown, Garry, Chairman, New York State Public Service Commission, 
  on behalf of the National Association of Regulatory Utility 
  Commissioners..................................................    20
Duane, Vincent P., Vice President and General Counsel, PJM 
  Interconnection, L.L.C., Norristown, PA........................    24
Gensler, Gary, Chairman, Commodity Futures Trading Commission....    14
Henderson, Michael W., Vice President & Chief Financial Officer, 
  Arkansas Electric Cooperative Coporation, Arkansas Electric 
  Cooperatives, Inc., Little Rock, AR............................    43
Kelliher, Joseph T., Executive Vice President, Federal Regulatory 
  Affairs, FPL Group, Inc., on behalf of the Edison Electric 
  Institute and the Electric Power Supply Association............    34
Murkowski, Hon. Lisa, U.S. Senator From Alaska...................     2
Wellinghoff, Jon, Chairman, Federal Energy Regulatory Commission.     3

                               APPENDIXES
                               Appendix I

Responses to additional questions................................    57

                              Appendix II

Additional material submitted for the record.....................    81

 
                FINANCIAL DERIVATIVES ON ENERGY MARKETS

                              ----------                              


                         TUESDAY, MARCH 9, 2010

                                       U.S. Senate,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:03 a.m., in 
room SD-366, Dirksen Senate Office Building, Hon. Jeff 
Bingaman, chairman, presiding.

OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM NEW 
                             MEXICO

    The Chairman. OK. Why do we not get started? Let me start 
by welcoming our witnesses.
    In the 110th Congress, an issue arose of the question of 
overlap of jurisdiction between the Commodity Futures Trading 
Commission over futures instruments and the new authority that 
Congress had given to FERC over market manipulation and 
regulated electricity markets. We thought that that issue had 
been resolved with the colloquy on the floor and with report 
language that we--at least I read to clarify that there was no 
intent for CFTC to take over regulation of matters that had 
been jurisdictional at FERC under the Federal Power Act and the 
Natural Gas Act.
    We come to this point with new legislation that has been 
passed in the House, may be considered here in the Senate in 
the coming months, that many tell us would make the problems 
that FERC has in controlling markets under its purview more 
difficult.
    For several years now, many in Congress have been 
criticizing regulatory agencies, CFTC as well as others, for 
not regulating derivatives closely enough and thereby allowing 
speculation to play too large a role although many have laid 
some of the blame for the collapse of financial markets on lax 
regulation allowing dangerous dependence on derivatives, but 
now we have a more aggressive approach, which is welcomed by 
the CFTC, to financial instruments.
    Many of us are concerned that this perhaps, at least, 
should not apply to things in electricity markets that have 
traditionally been regulated by FERC. I think there is a 
difference. FERC regulates electricity markets and the 
instruments that are used in those markets under the Federal 
Power Act. The Federal Power Act is concerned about rates. 
Rates and contracts must be just and reasonable and not unduly 
discriminatory or preferential. I think that is a key aspect of 
what FERC's responsibility is.
    The standard under which CFTC regulates derivatives and 
futures contracts has to do with orderly markets that are not 
manipulated. It does not have to do with the reasonableness of 
rates.
    We seem to be presented with 2 choices: create a bright 
line between the jurisdiction of the 2 agencies or allow the 
CFTC to decide what falls into its scope exclusively, thus 
becoming, in effect, the arbiter of FERC jurisdiction under its 
organic statutes. There may be other alternatives that I am not 
thinking of, and we would be anxious to hear about that.
    So these are the questions that are in my mind as we 
approach the hearing. I think this is a difficult matter that 
Congress needs to try to understand before we legislate in this 
area.
    Let me defer to Senator Murkowski for her comments.

        STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR 
                          FROM ALASKA

    Senator Murkowski. Thank you, Mr. Chairman. I would like to 
welcome not only the 2 chairmen this morning for taking time 
out of your busy schedules to appear before us today but those 
that will appear on the second panel as well.
    I have been amazed for about the past year with the number 
of people that I have met in this Congress that say that the 
one thing that they are looking for from the Federal Government 
is certainty. It does not matter whether we are talking about 
climate change, whether we are talking about energy 
legislation, or banking reform. Stakeholders need to understand 
what the rules are so that they can plan accordingly and they 
can abide by them.
    I often suggest that the one thing that we do pretty well 
is implement the law of unintended consequences. As the Senate 
considers Wall Street reform legislation, we know that our 
legislative actions to regulate over-the-counter derivatives 
will have consequences for physical energy markets. You get 
asked the question how do we know this? It is because today we 
are also receiving testimony from the State regulators, a 
united industry, everyone from utilities, independent 
electricity generators, renewable energy providers. They are 
warning us that our actions could not only create regulatory 
uncertainty but they could result in significant increases for 
electricity prices.
    As the Senate works on Wall Street reform legislation, we 
can all agree that Congress must guard against a systemic risk 
by improving the oversight, the transparency, and the stability 
of financial markets.
    The CFTC will certainly be provided with additional 
regulatory authority aimed at addressing systemic risk in the 
OTC market, but we need to carefully tailor congressional 
action to avoid sweeping in the physical energy markets that 
are regulated by the FERC. We do not want to be in a situation 
where we have well-intentioned legislation that results in 
burdensome, duplicative, or conflicting regulatory requirements 
for critical power transactions. The resulting ambiguity does 
nothing to increase transparency in the markets and could, 
instead, lead to both gaming and forum shopping.
    We are already seeing where a jurisdictional dispute 
between the 2 agencies is leading to market uncertainty. The 
financial transmission rights, or the FTRs, are used to hedge 
against volatile transmission prices and are currently solely 
regulated by the FERC. This is a point that the committee 
reinforced in the 2005 Energy Policy Act.
    In the 2008 Farm Bill, Congress tried to maintain the 
existing jurisdictional lines between the CFTC and the FERC, 
but despite these efforts, the CFTC is now considering whether 
some transactions within the organized wholesale electric 
markets like the FTRs are subject to its exclusive jurisdiction 
under the Commodity Exchange Act.
    I think it is important to note that these 2 agencies have 
very different missions. FERC is tasked with ensuring just and 
reasonable electricity rates for consumers, along with reliable 
delivery of power. In contrast, the CFTC is charged with 
policing the markets for fraud, manipulation, and abuse. I 
think it is important that we keep these different goals in 
mind as we work on financial reforms.
    Now, we recognize, Mr. Chairman, that the Energy Committee 
is not the lead on Wall Street reform efforts, but I am pleased 
that many of our members have vested interest in this debate, 
Senator Corker is involved with the Banking Committee and 
Senator Lincoln, of course, as chairman of the Agriculture 
Committee. I am confident that we can work collaboratively on 
these jurisdictional issues in order to maintain just and 
reasonable electricity prices for our consumers.
    I look forward to the comments that we will hear this 
morning.
    The Chairman. Let me just mention here at the beginning 
that we have an awkward circumstance which is fairly common 
here in the Senate, that we have 4 votes starting at 11 
o'clock. So what I have indicated to both Chairman Wellinghoff 
and Chairman Gensler is that I would like, if they would, to 
have them go ahead and testify, give us their views, and then 
maybe we could ask them to have a seat in the audience and 
bring forward the other 4 panelists for the second panel and 
have them give their views. Only after we have heard from all 6 
witnesses would we start our questions. That way if we have to 
quit, which we will have to in about an hour, we will not be 
denying anyone the right to testify.
    So we do have our first panel here: the Honorable Jon 
Wellinghoff, who is Chairman of the Federal Energy Regulatory 
Commission, and the Honorable Gary Gensler, who is Chairman of 
the Commodity Futures Trading Commission. We welcome you both 
and appreciate you coming. Chairman Wellinghoff, why do you not 
go ahead and then Chairman Gensler.

    STATEMENT OF JON WELLINGHOFF, CHAIRMAN, FEDERAL ENERGY 
                     REGULATORY COMMISSION

    Mr. Wellinghoff. Thank you, Chairman Bingaman and Ranking 
Member Murkowski, and Senator Corker. Thank you for the 
opportunity to appear here today.
    In the interest of time, Mr. Chairman, I would request that 
my prepared written statement be entered into the record, and I 
will summarize my testimony.
    The Chairman. We will include every witnesses' full 
statement in the record, and we will appreciate if you can make 
the main points that you think we need to understand.
    Mr. Wellinghoff. My testimony will address the energy 
markets regulated by FERC and how they may be affected by 
current or proposed laws focused on financial derivatives. I 
will explain why consumers could face higher energy costs if 
FERC's role and authority in these markets is reduced by laws 
addressing financial derivatives.
    The Commodity Futures Trading Commission regulates certain 
financial derivatives under existing law and would regulate 
additional financial derivatives under H.R. 4173, the Wall 
Street Reform and Consumer Protection Act of 2009. FERC and the 
CFTC have different missions. FERC is a rate regulator and 
ensures that rates charged to energy customers are just and 
reasonable. FERC also approves and enforces electric 
reliability standards. The CFTC seeks to ensure that markets 
are generally operated fairly and orderly, but has neither the 
authority nor the expertise to ensure the reasonableness of 
rates or oversee reliability of energy supplies. Shifting 
jurisdiction over energy markets from FERC to the CFTC would 
impair FERC's ability to protect energy consumers from 
unreasonable energy rates, an especially important 
consideration during our economic times. Similarly, expanding 
the CFTC's authority in FERC-regulated markets could limit 
FERC's ability to police against market manipulation in energy 
markets.
    In fiscal year 2009, FERC's efforts against market 
manipulation and other types of violations led to $38 million 
in civil penalties and $38 million in disgorgement. The scope 
of future efforts by FERC could be narrowed under the 
provisions such as those in H.R. 4173.
    Also, uncertainty about regulatory authority and rules in 
energy markets could chill investment or increase the cost of 
capital investments, ultimately harming consumers. This 
uncertainty could also slow investments in green energy such as 
renewable resources.
    The impetus for legislation on derivatives is from the 
financial turmoil caused by certain unregulated financial 
derivatives and other factors. The FERC-regulated markets did 
not cause these problems. Thus, whatever decisions Congress 
makes for currently unregulated financial derivatives should 
not apply to the energy markets regulated comprehensively by 
FERC. Any amendments to the Commodity Exchange Act should 
preserve FERC's exclusive oversight of rates, terms and 
conditions for energy transportation and wholesale sales, and 
prevent dual regulation of energy markets by FERC and the CFTC. 
Alternatively, FERC's jurisdiction can be maintained through 
appropriate amendments to the Federal Power Act and the Natural 
Gas Act. Either way, legislation on financial derivatives 
should not impair FERC's ability to ensure that consumers have 
a dependable supply of energy at just and reasonable rates.
    Any appropriate improvements to the rules for FERC-
regulated markets can be made by FERC and do not require a 
shift in authority to another agency. For example, 2 months 
ago, FERC proposed to require several actions to strengthen 
credit rules in RTO and ISO markets. The proposed actions 
include reducing or eliminating the use of unsecured credit in 
those markets and shortening the time allowed for posting of 
additional collateral. In a separate action, the commission 
asked for comments on whether to require comprehensive 
reporting of resales of FTRs in secondary markets.
    So while I and others continue to seek improvement in these 
markets, I see no problem in these markets that would be solved 
by reducing FERC's authority in the energy markets. No 
regulatory failure has occurred that would warrant such a major 
shift in oversight of these markets. These markets are vital in 
meeting the energy needs of millions of Americans, and nothing 
has been identified that warrants the uncertainty of inserting 
a new regulator and a new regulatory regime.
    The potential harm from taking regulation of the energy 
markets away from FERC would be substantial. Investment and 
infrastructure needed to both maintain reliability and to 
develop clean, renewable energy resources could be impeded. 
Consumer protection could be impaired, and the benefits to 
consumers from viable competitive energy markets could be 
compromised.
    In short, the current system of FERC oversight and 
comprehensive regulation of electric and gas markets is working 
well. Changing that system will not enhance benefits to 
consumers but only put them in jeopardy.
    Thank you for holding this important hearing and for 
inviting me to speak here today, and I would be happy to answer 
questions after the other panels come up. Thank you, Mr. 
Chairman.
    [The prepared statement of Mr. Wellinghoff follows:]
    Prepared Statement of Jon Wellinghoff, Chairman, Federal Energy 
                         Regulatory Commission
                              introduction
    Mr. Chairman, Ranking Member Murkowski and members of the 
Committee: Thank you for the opportunity to appear before you today. My 
testimony will address the energy markets regulated by the Federal 
Energy Regulatory Commission (FERC), and how they may be affected by 
current or proposed laws focused on financial derivatives. I will 
explain why consumers could face higher energy costs if FERC's role and 
authority in these markets is reduced by laws addressing financial 
derivatives.
    The Commodity Futures Trading Commission (CFTC) regulates certain 
financial derivatives under existing law, and would regulate additional 
financial derivatives under H.R. 4173, the Wall Street Reform and 
Consumer Protection Act of 2009. FERC and the CFTC have different 
missions. FERC is a rate regulator and ensures that rates charged to 
energy customers are just and reasonable. FERC also approves and 
enforces electric reliability standards. The CFTC seeks to ensure that 
markets generally operate fairly and orderly, but has neither the 
authority nor the expertise to ensure the reasonableness of rates or 
oversee reliability of energy supplies. Shifting jurisdiction over 
energy markets from FERC to the CFTC could impair FERC's ability to 
protect consumers from excessive energy rates, an especially important 
consideration during a recession. Similarly, expanding the CFTC's 
authority in FERC-regulated markets could limit FERC's ability to 
police against market manipulation in energy markets.
    Also, uncertainty about regulatory authority and requirements in 
energy markets could chill investments or increase the cost of capital 
for infrastructure investments, ultimately harming consumers. This 
uncertainty also could slow investments in ``green energy,'' such as 
renewable resources and smart grid technology.
    The impetus for legislation on financial derivatives is the 
financial turmoil caused by certain unregulated financial derivatives 
and other factors. The FERC-regulated markets did not cause these 
problems. Thus, whatever decisions Congress makes for currently-
unregulated financial derivatives should not apply to the energy 
markets regulated comprehensively by FERC. Any amendments to the 
Commodity Exchange Act should preserve FERC's exclusive oversight of 
rates, terms and conditions for energy transportation and wholesale 
sales, and prevent dual regulation of energy markets by FERC and the 
CFTC. Alternatively, FERC's jurisdiction can be maintained through 
appropriate amendments to the Federal Power Act and the Natural Gas 
Act, and I would encourage the Committee to consider this approach.
    As my colleague, Chairman Gensler, testified recently to the House 
Committee on Agriculture about certain financial markets: ``While 
seeking to address the gaps and inconsistencies that exist in the 
current regulatory structure of complex, consolidated financial firms, 
the proposals also may have unintentionally encompassed robustly 
regulated markets. . . .'' Similarly here, legislation by Congress on 
financial derivatives should not impair FERC's ability to ensure that 
consumers have an adequate supply of energy at just and reasonable 
rates.
                               background
    Since the late-1970s, Congress and FERC have encouraged competition 
in the natural gas and electricity industries. In the natural gas 
industry, Congress adopted the Natural Gas Policy Act of 1978 and the 
Natural Gas Wellhead Decontrol Act of 1989, removing price controls on 
first sales of natural gas. FERC also adopted pro-competitive 
regulations, particularly Order No. 636, requiring the interstate 
pipelines to unbundle their sales and transportation services.
    In the electric industry, this effort has included legislation such 
as the Public Utility Regulatory Policies Act of 1978 (facilitating 
market entry by combined heat-and-power facilities and small renewable 
energy facilities), the Energy Policy Act of 1992 (expanding FERC's 
authority to require transmission service upon customer application, 
and reducing barriers to entry by independent power producers) and the 
Energy Policy Act of 2005 (reducing barriers to investment in the 
industry, subject to protection against cross-subsidization by 
ratepayers).
    The Commission's efforts in the electric industry include the 
landmark Order No. 888, issued in 1996. Order No. 888 required public 
utilities to offer transmission service to others on non-discriminatory 
rates, terms and conditions. Order No. 888 also encouraged the 
formation of independent system operators (ISOs), to operate all of the 
transmission facilities in a geographic area. ISOs were aimed at 
encouraging competition by facilitating development of regional power 
markets, and enhancing trading opportunities for a region's buyers and 
sellers. Several years later, FERC's Order No. 2000 encouraged the 
formation of regional transmission operators (RTOs), which perform the 
same transmission functions as ISOs but generally are larger in 
geographic scope. Today, RTOs and ISOs operate not only transmission 
facilities but also markets for trading electric energy among 
utilities.
    RTO and ISO power markets and transmission services are tightly 
integrated, and regulated to a greater extent than most other markets. 
The rules for RTO and ISO markets are specified in lengthy tariffs 
(hundreds or thousands of pages) reviewed and approved by FERC. In 
order to analyze these tariffs, the Commission draws upon expertise in 
various disciplines, including attorneys, economists, energy industry 
analysts, and engineers. The tariffs contain numerous requirements and 
mechanisms to ensure reasonable rates and a reliable supply of 
electricity. These rules are carefully designed to facilitate 
competitive forces within a heavily-regulated industry. The RTOs and 
ISOs themselves are not ``self-regulating organizations,'' but are 
legally considered to be ``public utilities'' and in fact are regulated 
more extensively than other public utilities.
    Generally, the Commission's responsibility in the energy industries 
is to ensure that consumers have adequate supplies of energy at 
reasonable prices. For example, Federal Power Act sections 205 and 206 
require the Commission to ensure that the rates, terms and conditions 
offered by RTOs, ISOs and other public utilities are just, reasonable 
and not unduly discriminatory. This responsibility applies to wholesale 
sales and transmission of electricity in interstate commerce, as well 
as contracts or other arrangements and practices significantly 
affecting those sales and services.
    Commission staff monitors the energy markets to ensure that the 
markets are functioning efficiently and appropriately. This is done by 
monitoring market results and conditions and identifying anomalies. 
When the available data does not explain the anomalies, staff examines 
the matter and, if legitimate reasons are not found, investigations are 
initiated to determine if fraud or manipulation has occurred.
    The Commission also requires each RTO or ISO to have an independent 
market monitor. The market monitors can review all market activities in 
real-time. They also evaluate market rules and recommend changes, 
review and report on the performance of these markets, and must refer 
to the Commission any potential violations of the Commission's rules, 
regulations or orders.
    The Energy Policy Act of 2005 gave the Commission the authority to 
assess substantial penalties (a million dollars a day per violation) 
for fraud and market manipulation, including manipulation of RTO and 
ISO markets. This authority will greatly help the Commission deter and 
penalize the types of abuses we found during the California energy 
crisis several years earlier. The Commission has initiated several 
proceedings based on this authority, which applies to participants in 
RTO and ISO markets as well as any other entity engaging in fraud or 
market manipulation in connection with a FERC-jurisdictional 
transaction.
    FERC's efforts on market oversight and enforcement have increased 
greatly in recent years. Ten years ago, FERC investigatory staff 
consisted of 14 attorneys and a few support personnel within its Office 
of General Counsel. Today, staff in FERC's Office of Enforcement 
(including market oversight, investigations and audits) numbers over 
180, including 40 attorneys in its Division of Investigations. For 
fiscal year 2009, FERC's efforts yielded settlements worth 
approximately $38 million in penalties and $38 million in disgorgement. 
Six of those matters involved market manipulation claims and accounted 
for approximately $20.8 million in penalties and $28.8 million in 
disgorgement. A complete list of such actions for 2007-2009 is appended 
as Attachment A to my testimony.
    The Commission's transparency requirements are also quite 
extensive. For example, every public utility (whether within or outside 
of an RTO or ISO) must file a quarterly report listing every wholesale 
sale it made during the preceding quarter. The RTOs and ISOs also have 
substantial reporting requirements for bids and transactions in their 
markets.
                     financial transmission rights
    The question of CFTC regulation of energy markets has arisen in 
several contexts. Examples include RTO/ISO markets for financial 
transmission rights (FTRs), capacity markets and day-ahead markets. 
Another example is the question of whether RTOs/ISOs should be 
considered ``clearing'' organizations within CFTC jurisdiction. I will 
focus here on FTRs, as an illustration of the possible effects of CFTC 
regulation in these areas.
    FTRs allow customers to protect against the risk of price increases 
for transmission services in RTOs/ISOs. An FTR is a right to lock in 
congestion costs between two specific points. For example, if the 
transmission capacity going from Point A to Point B is 500 MW, but the 
RTO or ISO seeks to send 600 MW of power from Point A to Point B when 
calling on the least-cost generators to serve load, the path will be 
congested, and the price of service will increase because a more 
expensive generator at Point B will need to be dispatched. The increase 
is referred to as congestion costs.
    In general, load-serving entities in RTOs/ISOs are allocated either 
FTRs or rights convertible into FTRs. The allocation is generally based 
on usage during a historical period, as modified in certain 
circumstances for later changes. While allocated FTRs are generally 
limited to load-serving entities and to those who funded construction 
of specific transmission facilities, other FTRs are auctioned and these 
generally can be purchased by any creditworthy entity.
    Historically, FTRs were developed to give load-serving entities 
price certainty similar to the pricing methods in non-RTO/ISO markets. 
In most cases, FTRs have terms of one year or less. In the Energy 
Policy Act of 2005, however, Congress enacted Federal Power Act section 
217, requiring FERC to use its authority in a way that enables load-
serving entities to secure FTRs on a long-term basis for long-term 
power supply arrangements made to meet their customer needs.
    Unlike ``futures contracts,'' FTRs are available only to the extent 
allowed by the physical limits of the grid. All of the FTRs must be 
``simultaneously feasible'' on the grid. Financial derivatives, by 
contrast, are not limited by physical capacities and instead are 
limited only by the willingness of market participants to take an 
opposite ``bet.''
    Also, markets for FTRs include hundreds or thousands of different 
FTRs (for each pairing of receipt and delivery points) and thus are 
much more fragmented and less liquid than typical contracts of fungible 
commodities traded on futures exchanges. (Attachment B to my testimony 
provides statistics on this point.) Since an FTR applies to a specific 
pair of receipt and delivery points, it is not fungible with an FTR for 
a different pair of points.
    FTR markets do not pose systemic risk to the economy. All FTR 
markets combined amount to roughly several billion dollars. This market 
level fluctuates depending on the level of physical congestion in each 
RTO and is expected to decrease substantially as more transmission is 
built relieving congestion.
          the commodity exchange act and proposed legislation
    Questions have been raised about whether FERC-regulated energy 
markets, including FTRs or other products, fall within CFTC 
jurisdiction under the Commodity Exchange Act. Similar questions arise 
under proposed bills on financial derivatives, such as H.R. 4173.
    For example, some may argue that an FTR is a solely financial 
arrangement and constitutes a futures contract under the Commodity 
Exchange Act, or that an RTO or ISO is a ``derivatives clearing 
organization'' under that Act. Either of these arguments, if accepted, 
may establish CFTC jurisdiction.
    Moreover, my understanding is that the CFTC construes its 
jurisdiction under the Commodity Exchange Act to be exclusive. If so, 
the issue could become, not whether to allow dual regulation by FERC 
and the CFTC, but whether FERC regulation will be ended and replaced by 
CFTC regulation, even though the CFTC has neither the authority nor the 
expertise to ensure the reasonableness of price levels or oversee 
reliability of energy supplies.
    Under proposed legislation, some may argue that FTRs or other FERC-
regulated agreements fit within the definition of a ``swap.'' For 
example, they may argue that the definition of ``swaps'' in proposed 
legislation includes capacity contracts (giving a customer in an RTO/
ISO or bilateral market the right to buy electricity from a generating 
facility or other resources). This argument, however, ignores the fact 
that capacity contracts are critically important in ensuring the 
reliability of future electricity supplies, i.e., that there is enough 
``steel in the ground'' and other resources to meet those needs. Thus, 
these agreements may be subjected to a regulatory scheme crafted for 
circumstances entirely unrelated to, and arguably ill-suited for, the 
energy markets.
       congress should preserve ferc regulation of energy markets
    In addition to offering FTRs, certain RTOs and ISOs operate day-
ahead and real-time energy markets, capacity markets and ancillary 
service markets. The rules for determining the prices for various power 
sales and transmission services--including congestion costs--are 
inextricably intertwined in the tariffs and in software as an 
integrated market design. This integrated design under comprehensive 
FERC oversight differs significantly from the way in which many other 
derivatives markets evolved, where the derivatives developed 
independently from the markets for their underlying commodities.
    All elements of these markets are approved by FERC, incorporated 
into FERC-approved tariffs, and monitored closely by the independent 
market monitors and FERC. Subjecting one or more of these to CFTC 
regulation could disrupt the integrated functioning of RTO/ISO markets, 
leading to market inefficiencies and higher energy costs for consumers.
    For example, as noted above, load serving entities generally are 
allocated FTRs as a means to hedge the transmission costs they incur 
and, ultimately, recover from their customers. CFTC requirements on 
position limits could conceivably require different allocations than 
the tariff rules approved by FERC. A utility currently allocated, e.g., 
half of the FTRs on a transmission path it has used and funded for many 
years could find its allocation reduced significantly, and find itself 
unhedged against congestion costs.
    Similarly, subjecting FTRs to CFTC clearing rules could conflict 
with FERC-approved tariff provisions on creditworthiness. FERC-approved 
tariffs reflect a balance between limiting the risk of defaults and 
unduly increasing the costs incurred by market participants and, 
ultimately, consumers. FERC also recognizes that different approaches 
to credit may be warranted for different types of power market 
participants (such as municipal utilities, cooperative utilities and 
federal agencies), unlike the one-size-fits-all approach that may suit 
other markets. There is no reason to assume that policies crafted by 
the CFTC in a different regulatory context apply equally well here.
    Any changes that may be warranted in FERC-regulated markets can be 
made by FERC and do not necessitate a shift of authority to another 
agency. For example, two months ago FERC proposed to require several 
actions to strengthen credit rules in the RTO and ISO markets. The 
proposed actions include reducing or eliminating the use of unsecured 
credit in those markets, and shortening the time allowed for posting of 
additional collateral. In a separate action, the Commission asked for 
comments on whether to require comprehensive reporting of resales of 
FTRs in secondary markets. I have also asked FERC staff to begin 
conducting outreach with market participants on the idea of position 
limits for FTRs and other energy markets. FERC is open to exploring 
other issues as appropriate, including whether financial participants 
in energy markets can create systemic risk and the usefulness of 
``secondary markets'' for resale of FERC-regulated products and 
services.
    Congress has recognized FERC's role in ensuring that FTRs help 
protect utilities and their customers from increases in the cost of 
transmission service. As noted above, Congress in 2005 enacted Federal 
Power Act section 217, requiring FERC to use its authority in a way 
that enables load-serving entities to secure FTRs on a long-term basis 
for long-term power supply arrangements made to meet their customer 
needs.
    Moreover, Congress has indicated that RTOs and ISOs should be 
regulated exclusively by FERC. When Congress enacted the Food, 
Conservation, and Energy Act of 2008 and addressed the regulatory gap 
known as the ``Enron loophole,'' by giving the CFTC authority over 
``significant price discovery contracts [SPDCs],'' the Conference 
Report stated (on page 986) that ``[i]t is the Managers' intent that 
this provision [on SPDCs] not affect FERC authority over the activities 
of regional transmission organizations or independent system operators 
because such activities are not conducted in reliance on section 
2(h)(3) [of the Commodity Exchange Act].'' In a colloquy with Senator 
Bingaman, Senator Levin emphasized this point, stating that ``it is 
certainly my intention, as one of the amendment's authors--that FERC's 
authority over RTOs would be unaffected.'' Cong. Rec., Dec. 13, 2007, 
S15447. More recently, the House of Representatives passed H.R. 2454, 
the American Clean Energy and Security Act of 2009, which (in section 
351) would amend the Commodity Exchange Act to define ``energy 
commodity'' as including ``electricity (excluding financial 
transmission rights which are subject to regulation and oversight by 
the Federal Energy Regulatory Commission.)''
    Congress has taken care to avoid duplicative regulation elsewhere 
in the electric industry. For example, the Federal Power Act exempts 
state agencies from regulation as public utilities; preserves State 
authority over local distribution and intrastate commerce (including 
much of Texas); and exempts cooperatives from regulation as public 
utilities if they are financed by the Rural Utilities Service. The same 
approach of avoiding duplicative regulation is warranted here.
    State regulators support FERC's jurisdiction in wholesale energy 
markets instead of a shift of jurisdiction to the CFTC. Last month, the 
National Association of Regulatory Utility Commissioners (NARUC) 
adopted a resolution stating that FERC (and, within ERCOT, the state 
commission) ``should continue to be the exclusive Federal regulator 
with authority to oversee any agreement, contract, transaction, 
product, market mechanism or service offered or provided pursuant to a 
tariff or rate schedule filed and accepted by the FERC. . . .''
    The impetus for legislation on financial derivatives is the 
financial turmoil caused by certain unregulated financial derivatives 
and other factors. As Chairman Gensler stated in recent testimony 
before the House Committee on Agriculture: ``One year ago, the 
financial system failed the American public. The financial regulatory 
system failed the American public.'' He also stated that ``[w]e now 
face a new set of challenges as the nation continues to recover from 
last year's failure of the financial system and the financial 
regulatory system.'' The FERC-regulated energy markets did not cause 
these problems. Any response by Congress should address the source of 
these problems, and not inadvertently sweep in the FERC-regulated 
markets, since these have continued to perform well.
    In short, FERC has many years of experience with the energy 
markets. While I and others continue to seek improvements in these 
markets, I see no problem in these markets that would be solved by 
supplementing or displacing FERC oversight with CFTC oversight. No 
regulatory failure has occurred that would warrant such a major shift 
in oversight of these markets. These markets are vital in meeting the 
energy needs of many millions of Americans, and nothing has been 
proffered to warrant the uncertainty of inserting a new regulator and a 
new regulatory regime.
    The potential harm that would ensue, however, if the regulation of 
the energy markets was taken from FERC could be substantial. Investment 
in infrastructure needed both to maintain reliability and to develop 
clean renewable energy resources could be impeded. Consumer protection 
could be impaired and the benefits to consumers from viable competitive 
energy markets could be compromised. In sum, the current system of FERC 
oversight and comprehensive regulation of electric and gas markets is 
working well. Changing that system will not enhance benefits to 
consumers, but only put them in jeopardy.
                               conclusion
    Late last year, Chairman Gensler testified that giving the Federal 
Reserve certain authority in financial markets ``has the potential of 
setting up multiple regulators overseeing markets and market functions 
in the United States.'' He also stated that ``[w]hile it is important 
to enhance the oversight of markets by both the SEC and CFTC, I think 
Congress would want to closely consider whether it's best to set up 
multiple regulators for some functions.'' The context of today's 
hearing is different, but the concern is the same. Any improvements 
warranted in FERC-regulated markets can be made by FERC. Interposing a 
new regulator, or having multiple regulators, has not been justified, 
is not needed and would be harmful. 

    

    The Chairman. Thank you very much.
    Chairman Gensler, go right ahead.

STATEMENT OF GARY GENSLER, CHAIRMAN, COMMODITY FUTURES TRADING 
                           COMMISSION

    Mr. Gensler. Thank you, Chairman Bingaman, Ranking Member 
Murkowski, and Senator Corker. It is an honor to be here today 
and testify on behalf of the full commission, the CFTC.
    Before I just turn to OTC derivatives reform, let me just 
say one moment about what the CFTC is because I do not often 
come before this committee. We regulate exchanges, 
clearinghouses, other intermediaries to ensure--and I think Jon 
captured this--to make sure the markets work efficiently, there 
is integrity to markets, and they are free of fraud, 
manipulation, and of course, that we are promoting 
transparency, which is so important to the public markets. That 
helps lower risk to the full American public.
    We, of course, also have broad surveillance and enforcement 
authority and are sort of a cop on the beat.
    When Congress first brought regulation to the futures 
markets, which were derivatives markets that existed since the 
Civil War, they brought that regulation in the 1920s and 1930s. 
They sought to ensure uniformity across the then-derivatives 
markets which we called futures, and the CFTC was later formed 
out of the Agriculture Department in the 1970s overseeing the 
futures trading not only in the original grain products but 
also in oil and natural gas, gasoline, electricity, and so 
forth.
    So the CFTC overseeing these derivative markets, coexists 
and routinely cooperates with other agencies. We coexist, for 
instance, with the Department of Agriculture that helps set 
milk prices throughout the country, and we do coexist, I think 
very well, with FERC, and as the chairman mentioned under the 
Energy Policy Act of 2005, for example, this committee working 
across parties and with the House set up new manipulation 
standards for FERC, and we have worked jointly with them. I 
think those authorities that were in EPAct are very important 
to help protect the markets that FERC oversees.
    But at the same time, the CFTC does oversee the futures 
markets in electricity and natural gas, whether they trade in 
NYMEX or the Nodal Exchange or this new Intercontinental 
Exchange.
    In a well functioning market, derivatives help to mitigate 
and lower risk, and of course, the financial crisis 
dramatically showed how the unregulated over-the-counter 
marketplace instead could heighten risk and concentrate risk. 
So working together with Congress--and I see Senator Corker 
because I know you are at the center of this on another 
committee--working together, we are trying to regulate the 
over-the-counter derivatives market. There are 3 essential 
pieces, if I might say.
    One is to regulate the dealers. These are the large swap 
dealers. Usually they are part of an institution too big to 
fail, but those swap dealers.
    Two is to bring transparency into the markets requiring 
transparent trading on trading platforms or even fully 
regulated exchanges, coupled with aggregate position limit 
authority.
    Three is to lower risk further to bring standard 
transactions to central clearing.
    Now, electricity derivatives are part of that. Natural gas 
derivatives may be part of that. Consistent with the way that 
the CFTC and the FERC coexist to date in the futures markets, I 
believe that both agencies should continue to coexist with each 
of their very important and respective missions. We have a 
strong relationship with the commission. We are working 
actually with the FERC right now. Jon and I have met and the 
staffs have met about the rule that he mentioned on lowering 
risk in the RTO markets. Ours is just to give advice. They are 
taking the lead, of course.
    But as Congress works through OTC derivatives reform, I 
think it should avoid wholesale statutory exemptions, 
exemptions that could lead to the CFTC regulation of futures 
contracts, swaps contracts, clearing or exchanges to be exempt 
in a certain or particular market. We actually have some 
history with exemptions, and any such statutory exemptions can 
undercut the goal of comprehensive reform and weaken market 
protection. It is particularly hard to craft such exemptions, 
bright line exemptions, as the chairman mentioned, and 
consistent with the public interest because markets evolve, 
products evolve.
    History demonstrates that such bright line exemptions can 
lead to their own unintended consequences. What seems to be 
well crafted, carefully crafted later becomes a significant 
loophole. You know, when the Enron loophole was included in 
statute in 2000, electronic trading facilities were at their 
infancy, but as these electronic facilities went on, and by the 
time it was addressed in 2008 in the Farm Bill, we had to bring 
in unregulated markets that were actually larger than the 
original regulated markets.
    So I think the proponents of exemptions have argued and 
they are concerned about additional CFTC regulation and they 
think it is unnecessary. I think that our 2 agencies can work 
well together. We have to date. We coexist with many other 
agencies.
    So I thank you for having me here. I understand you are on 
a tight schedule. So I look forward to any questions as they 
come up.
    [The prepared statement of Mr. Gensler follows:]
Prepared Statement of Gary Gensler, Chairman, Commodity Futures Trading 
                               Commission
    Good afternoon Chairman Bingaman, Ranking Member Murkowski and 
members of the Committee. Thank you for inviting me to testify 
regarding the regulation of over-the-counter (OTC) derivatives, 
particularly with respect to energy markets. I am pleased to testify on 
behalf of the Commodity Futures Trading Commission.
    The 2008 financial crisis left us with many lessons and many 
challenges to tackle. Though there were certainly many causes of the 
crisis, I think most would agree that the unregulated OTC derivatives 
marketplace played a central role. We must now bring comprehensive 
regulatory reform to the OTC marketplace for derivatives.
                         cftc regulatory regime
    Before I discuss the details of much-needed OTC derivatives reform, 
let me take a moment to discuss the Commodity Futures Trading 
Commission's (CFTC) current oversight of particular derivatives 
markets, called futures markets. Futures have traded since the Civil 
War, when grain merchants came together to hedge the risk of changes in 
the price of corn, wheat and other grains on a central exchange. It 
took nearly 60 years until Congress first brought Federal regulation to 
the futures markets. President Roosevelt and Congress further responded 
to our last great financial crisis by strengthening regulation and 
oversight of the commodities and futures markets through the Commodity 
Exchange Act (CEA), which created the CFTC's predecessor within the 
Agriculture Department.
    The CFTC ensures that futures and commodity options exchanges 
protect market participants and promote fair and orderly trading, free 
from fraud, manipulation and other abuses. Exchanges are where buyers 
and sellers meet and enter into transactions. The CFTC also oversees 
clearinghouses, which enter the picture only after two counterparties 
complete a transaction. Clearinghouses act as middlemen between and 
guarantee the obligations of the two parties to the trade and take on 
the risk that one party may fail to meet its obligations for the 
duration of the contract. Centralized clearing has helped lower risk to 
the markets for more than a century, in both calm markets and in the 
stormiest of markets, such as during the 2008 financial crisis.
    In addition to regulating exchanges and clearinghouses, the CFTC 
regulates market participants, including futures commission merchants, 
commodity trading advisors and commodity pool operators. The CFTC has 
wide-ranging transparency efforts designed to provide the public much 
information about commodity futures markets and trading. The agency 
also has broad surveillance and enforcement powers to police the 
markets for fraud, manipulation and other abuses.
                 cftc coordination with other agencies
    While many different federal agencies oversee various cash markets 
throughout the economy, Congress determined that the CFTC should be the 
sole agency to oversee trading on futures exchanges. One of the 
principal reasons that Congress mandated this exclusive jurisdiction 
was to bring uniformity to the regulation of the regulated derivatives 
markets. Importantly, the CFTC also was given the authority to provide 
exemptions from regulatory requirements for specific instruments or 
markets where it is in the public interest to do so.
    Though the CFTC has exclusive jurisdiction over the futures 
markets, it coexists and routinely cooperates with other agencies that 
have jurisdiction over cash markets for the underlying commodities. The 
Department of Agriculture, for example, regulates marketing standards 
for corn and cash milk prices, while the CFTC regulates corn and milk 
futures. The Grain Inspection, Packers and Stockyards Administration 
oversees spot livestock markets, while the CFTC regulates livestock 
futures. The Treasury Department oversees the issuance of all Treasury 
Bills, Notes and Bonds, while the CFTC oversees futures contracts based 
on those instruments. The Federal Reserve Board oversees interest rate 
levels, while the CFTC oversees interest rate futures. The Federal 
Energy Regulatory Commission (FERC) oversees important aspects of the 
energy markets, including monitoring natural gas pipelines and 
regulating for just and reasonable wholesale electricity rates and 
interstate transmission service of electricity, while the CFTC oversees 
futures markets and certain electronic trading facilities for natural 
gas and electricity derivatives.
                  regulation of energy futures markets
    A transparent and consistent playing field for all physical 
commodity futures--from agricultural products, such as corn and wheat, 
to energy products, such as crude oil and natural gas--should be the 
foundation of our regulations. In the energy markets, the CFTC 
currently oversees the trading of futures and options on futures on 
crude oil, heating oil, natural gas, gasoline and electricity, among 
others, traded on designated contract markets, such as the New York 
Mercantile Exchange (NYMEX), and on an exempt commercial market--the 
Intercontinental Exchange (ICE).
    Vibrant energy futures markets are vital to the American economy. 
In 2009, more than 377 million energy futures and options contracts 
were traded on CFTC-regulated exchanges. The highest volume crude oil 
futures market was NYMEX's West Texas Intermediate crude oil contract 
with 137 million contracts. That is the equivalent of 137 billion 
barrels of oil--equal to the United States usage for about 11 years--
with a notional value of nearly $9 trillion. The largest contract in 
natural gas was NYMEX's Henry Hub contract with 48 million contracts. 
That is the equivalent of 480 billion mmBTU's of natural gas with a 
notional value of $2.17 trillion. Energy futures and options markets 
also include very significant trading in electricity contracts, which, 
as a class, had more than 26.4 million contracts traded representing 7% 
of the overall futures and options trading volume in the energy sector.
    Congress has continued to reaffirm the CFTC's role in regulating 
futures markets. In the 2008 Farm Bill, Congress broadened the CFTC's 
authority to regulate derivatives, including energy derivatives, traded 
on previously-exempted electronic trading facilities, called exempt 
commercial markets (ECMs). If a contract that is traded on one of these 
facilities is found to perform a significant price discovery (SPDC) 
function, the trading of that contract on that facility is subject to 
heightened regulation and required to comply with key core principles 
that also apply to the trading of futures contracts.
    The Commission has so far determined that the ICE Henry Financial 
LD1 Fixed Price Contract traded on the ICE--the largest volume natural 
gas swap contract traded on an ECM--serves a significant price 
discovery function, and thus subject to heightened regulation. 
Following the statutory obligations of the 2008 Farm Bill, the CFTC is 
analyzing--and has sought public comment on--an additional 42 energy 
contracts, including natural gas and electricity contracts, to 
determine whether they meet the criteria to be regulated as SPDCs.
                       otc derivatives regulation
    Nearly 60 years after the futures markets were regulated, the first 
OTC swap was transacted in 1981. During its early years, the OTC 
marketplace was highly tailored to meet specific risk management needs. 
Contracts were negotiated between dealers and their corporate customers 
seeking to hedge specific financial risks. In contrast to the regulated 
futures markets, these early OTC derivatives were not traded on 
exchanges. Instead, OTC derivatives were transacted bilaterally, with 
dealers standing between their various customers. In this market 
structure, dealers keep transactions on their books, leaving the 
financial institutions more interconnected with all of their customers 
and limiting the amount of relevant pricing information available to 
the public.
    In the last three decades, the over-the-counter derivatives 
marketplace has grown up, but it remains largely unregulated. Since the 
1980s, the notional value of the market has ballooned from less than $1 
trillion to approximately $300 trillion in the United States--that's 
$20 in derivatives for every dollar of goods and services produced in 
the American economy. The contracts have become much more standardized, 
and rapid advances in technology--particularly in the last ten years--
now can facilitate transparent trading of much of this market on 
electronic platforms. While so much of this marketplace has changed 
significantly, the constant that remains is that it is largely 
unregulated and still dealer dominated.
    It is now time to bring comprehensive regulation to this large and 
economically significant market. In well functioning markets, 
derivatives are meant to mitigate and help manage risk in the economy. 
Even if not for the 2008 financial crisis, this market should be 
regulated to achieve these goals. The financial crisis only highlights 
this in dramatically revealing how unregulated OTC derivatives and 
their dealers actually can heighten and concentrate risk to the great 
detriment of the American public. The need for broad based reform is 
the ultimate lesson of AIG and the broader risks brought about by the 
unregulated OTC derivatives market.
    Effective reform requires many pieces. I will focus on the three 
essential components that should be enacted to promote transparency and 
reduce risk to the American public.
    First, we must establish an explicit regulatory framework for swap 
dealers and major swap participants.
    Second, we must bring transparency to these markets by requiring 
that standardized derivatives be traded on regulated trading platforms.
    Third, we must lower the risk to the American public of financial 
institutions that have become both ``too big to fail'' and ``too 
interconnected to fail'' by requiring that their standardized 
derivatives be brought to central clearinghouses.
Regulating the Dealers
    There is now broad consensus that dealers should be regulated for 
all of their derivatives business, both customized transactions and 
standardized ones. Swap dealers and major swap participants should 
maintain sufficient capital and meet margin requirements on their swap 
businesses to lower risk to the American public. They should be 
required to meet business conduct standards to a) promote market 
integrity by protecting against fraud, manipulation and other abuses 
and to b) lower risk through uniform back office standards for netting, 
processing and documentation. This should include authority for 
regulators to set aggregate position limits for OTC derivatives 
contracts when they perform or affect a significant price discovery 
function with respect to regulated markets. Swap dealers and major swap 
participants also should meet recordkeeping and reporting requirements 
promoting transparency to the regulators.
Transparent Trading Requirement
    It is not enough, though, simply to promote transparency to the 
regulators. Financial reform will be incomplete if we do not make the 
OTC derivatives marketplace transparent to the public.
    The majority of the OTC market, by some estimates more than three 
quarters of the market, could be cleared by a clearinghouse. Customized 
contracts--those that are so tailored that they cannot be cleared by a 
clearinghouse or listed on a trading platform--should be allowed to be 
transacted bilaterally, with the dealers subject to comprehensive 
regulation for these transactions.
    This leaves the important public policy question of whether to 
require standardized OTC transactions to be brought to transparent, 
regulated, trading platforms. An opaque derivatives market, 
concentrated amongst a small number of financial institutions, though, 
contributed to bringing our financial system to the brink of collapse. 
Public market transparency greatly improves the functioning of existing 
securities and futures markets. We should shine the same light on the 
OTC derivatives markets. The more transparent a marketplace, the more 
liquid it is.
    The more transparent a marketplace, the more competitive it is. And 
the more transparent a marketplace, the lower the costs for hedgers, 
borrowers and, ultimately, their customers. The best way to bring 
transparency is through regulated trading facilities and exchanges--
including establishing a mechanism to provide for the timely public 
reporting of key trading data. Such centralized trading venues not only 
bring greater transparency, but increase competition in the markets by 
encouraging market-making and the provision of liquidity by a greater 
number of participants. A greater number of market makers brings better 
pricing and lowers risk to the system.
    Further, clearinghouses would be far more able to assess and mange 
the risk of OTC derivatives with the benefit of transparent trading 
markets. A critical element of managing clearinghouse risk is marking 
all cleared positions to a reliable and transparent market price.
    Absent the transparency provided by trading venues, clearinghouses 
have less reliable prices when marking to market the derivatives they 
clear and, thus, are less able to manage their risk and protect the 
public.
    Some on Wall Street have suggested that they could support a 
clearing requirement, but see no need for a transparency requirement. 
But make no mistake: transparency is an absolutely essential component 
of reform. Congress should require that all standardized OTC derivative 
transactions be moved onto regulated transparent exchanges or trade 
execution facilities.
Mandating Clearing of Standardized Derivatives
    Congress also should require derivatives dealers to bring their 
completed standardized derivatives transactions to regulated 
clearinghouses.
    Currently, OTC derivatives transactions stay on the books of the 
dealers, often for many years after they are arranged. These dealers 
engage in many other businesses, such as lending, underwriting, asset 
management, securities trading and deposit-taking. When there is a 
better alternative through central clearing, why leave these 
derivatives transactions on the books of the swap dealers when these 
institutions are possibly ``too big to fail?'' Bilateral derivatives 
also leave a financial institution possibly ``too interconnected to 
fail.'' Leaving standardized OTC derivatives transactions on the books 
of the banks further aggravates the Governments' dilemma when faced 
with a failing institution. Central clearing would greatly reduce both 
the size of dealers as well as the interconnectedness between Wall 
Street banks, their customers and the economy.
    Some corporations have expressed concerns regarding posting the 
collateral required to clear a contract. While this is a legitimate 
public policy debate, I believe that the public is best served by 
lowering risk to the system as a whole. An exemption from clearing for 
this large class of transactions would allow dealers to keep 
significant risk on their books--risk that could reverberate throughout 
the entire financial system if a bank fails. Further, it is not clear 
that posting collateral necessarily increases costs to end users, since 
dealers charge corporations for credit extensions when the corporations 
do not post margin.
    If Congress ultimately determines that commercial end-users' 
transactions should be exempt from a clearing requirement, the 
exemptions should be narrow. Data from the Bank for International 
Settlements shows that dealer-to-dealer transactions comprise 40 
percent or less of the market in most contracts. Contracts with 
financial firms make up the bulk of transactions with non-dealers. For 
instance, swaps with non-dealer financial firms make up 57 percent of 
the interest rate derivatives markets. Exempting transactions with non-
dealer financial firms exposes the American public to great risk by 
leaving the broader financial system significantly interconnected 
through their standard derivatives transactions. At a minimum, 
legislation should mandate that trades between dealers and other 
financial firms be cleared on regulated clearinghouses. Hedge funds, 
for example, should not be exempt from a clearing requirement with 
respect to their OTC transactions.
    Further, any commercial end-user exception from clearing should not 
bring along an exemption from a transparency requirement. Commercial 
end-users have raised concerns about posting margin if they are 
required to clear their transactions. Separating the trading 
requirement from the clearing requirement can address this concern, if 
need be. Indeed, most commercial end-users would benefit from greater 
transparency than Wall Street currently provides.
                 regulation of electricity derivatives
    As we move to bring comprehensive reform to the OTC derivatives 
marketplace, the new authorities granted to market regulators will 
necessarily relate to existing authorities of other federal regulators. 
Specifically, CFTC authorities for OTC energy derivatives would relate 
to the FERC's authority under the Natural Gas Act and the Federal Power 
Act, including the authority to regulate certain activities of Regional 
Transmission Organizations (RTOs) and Independent System Operators 
(ISOs). Consistent with the CFTC's and FERC's currently co-existing 
regulatory authorities, both agencies should continue to apply their 
authorities to the activities that are within their respective 
jurisdictions.
    The CFTC has exclusive jurisdiction over the trading and clearing 
of futures contracts, whereas the FERC has jurisdiction over other 
defined aspects of the energy markets, including regulating interstate 
transportation rates and services for natural gas pipelines and 
regulating wholesale sales of electricity and interstate transmission 
rates and services. The FERC also has important enforcement authorities 
under the Federal Power Act and the Natural Gas Act to prosecute 
manipulation in the electricity and natural gas markets. Contracts for 
the immediate or forward delivery of electricity--like all cash and 
forward contracts for other commodities--are not regulated by the CFTC.
    Congress has provided the agencies with adequate tools to work 
cooperatively. The CEA provides the CFTC with authority to exempt 
instruments and markets from its regulations if it is determined to be 
in the public interest to do so. OTC derivatives reform should extend 
this exemptive authority with the CFTC's oversight of the swaps market. 
Any potential overlaps in oversight can be addressed through memoranda 
of understanding and other cooperative working relationships between 
the two agencies. Pending legislation also should maintain the FERC's 
enforcement authorities under Section 222 of the Federal Power Act and 
Section 4A of the Natural Gas Act.
    In contrast, wholesale statutory exemptions preventing the 
application of any CFTC regulation--including the regulation of futures 
contracts, swaps contracts, clearing or exchange trading--for any 
instrument or market that is regulated by the FERC undermine the 
effectiveness of comprehensive reform. Congress should avoid any 
bright-line exemption that runs the risk of creating the next 
regulatory loophole. Instead, Congress should follow the long 
established model under which the CFTC coexists with other agencies 
with oversight of cash and forward markets.
    History demonstrates that bright-line statutory exemptions or 
exclusions granted at one point in time can have unintended 
consequences and often fail to adequately account for subsequent 
developments. Markets evolve rapidly. What may seem like a carefully 
crafted exclusion today can become a significant and problem-filled 
loophole tomorrow. When the Enron loophole was included in statute in 
2000, electronic trading facilities were in their infancy. By the time 
Congress addressed the loophole as part of the Farm Bill in 2008, the 
unregulated electronic trading of natural gas swaps was on a par with 
the trading of natural gas futures on the regulated market. As the 
Amaranth case demonstrated, traders took advantage of the unregulated 
exempt facility to avoid position limits and other regulations 
established for the regulated futures markets. Proponents of the 
exemptions had argued that additional CFTC regulation was unnecessary. 
Our experience, though, indicates that comprehensive and consistent 
oversight must be applied.
                                closing
    I thank you for inviting me to testify today. I look forward to 
working with you in the coming months to implement comprehensive reform 
of our financial regulatory system. I will be happy to answer any 
questions you may have.

    The Chairman. Thank you both for your excellent testimony.
    If we could just ask the 4 panelists in the second panel to 
come ahead and give their testimony, and then we will have some 
questions of all 6 witnesses.
    Let me introduce this second panel as they are coming 
forward. We have the Honorable Garry Brown, who is Chairman of 
the New York Public Service Commission and Chair of NARUC's 
Committee on Electricity. We have Mr. Vincent Duane, who is 
with PJM Interconnection in Norristown, Pennsylvania. We have 
the Honorable Joseph Kelliher, representing Edison Electric 
Institute and The Electric Power Supply Association, and Mr. 
Michael Henderson, who is representing the Arkansas rural 
electric coops in Little Rock.
    Thank you all very much for being here. Why do we not 
start--let us see. I introduced you in the order of right to 
left, so why do we not just have you go ahead in that order, 
please.

   STATEMENT OF GARRY BROWN, CHAIRMAN, NEW YORK STATE PUBLIC 
 SERVICE COMMISSION, ON BEHLAF OF THE NATIONAL ASSOCIATION OF 
                REGULATORY UTILITY COMMISSIONERS

    Mr. Brown. Good morning, Chairman Bingaman, Ranking Member 
Murkowski, and members of the committee. My name is Garry 
Brown. I am the Chair of the New York State Public Service 
Commission. I also serve as the Chair of the Electricity 
Committee on the National Association of Regulatory Utility 
Commissioners on whose behalf I am testifying here today.
    I am honored to have the opportunity to appear before you 
this morning and offer our perspectives on financial 
transmission rights and electricity market mechanisms.
    It is our understanding that some of the proposals being 
contemplated by Congress would provide the CFTC with oversight 
of OTC risk management products, including mandatory 
centralized clearing and exchange trading of all OTC products. 
NARUC believes that this approach could be detrimental to 
electricity and natural gas retail consumers. There is a 
diverse group of end users consisting of electric and natural 
gas utilities, suppliers, customers, and other commercial 
entities who rely on OTC derivative products and markets to 
manage electricity and natural gas price risks for legitimate 
business purposes, thereby helping to keep commodity costs 
stable for retail consumers. In these situations, the mandatory 
centralized clearing of all OTC contracts as envisioned in 
proposed legislation will increase expenses associated with 
hedging activity and ultimately end-use prices due to increased 
margin requirements.
    State utility commissions regulate companies that rely on 
legitimate hedging activities and transaction in natural gas 
and electricity markets to keep commodity costs stable for 
retail customers. These companies use both exchange-traded and 
OTC derivatives to reduce their exposure to volatile spot 
markets which enables them to make sound medium-and long-term 
business decisions. A requirement for mandatory centralized 
clearing of all OTC contracts would increase the expenses 
associated with hedging activities and ultimately consumer 
prices due to increased margin requirements.
    Utilities would have to finance needed cash margins in the 
capital markets and pass these costs to customers through the 
ratemaking process or take other offsetting actions such as 
cutting back capital projects. Similarly, public utilities 
could lose access to long-term power supply contracts called 
pre-pays because the expense of ongoing cash margins would be 
prohibitive. We also understand that rural electric 
cooperatives could be forced to borrow large sums at 
unaffordable rates. In cases where these costs would prove to 
be too high, the energy supplier would need to reduce or cease 
hedging altogether, thus negatively impacting the ability to 
manage price volatility, resulting in higher costs to 
consumers. In short, consumers need the industry to have both 
cleared and OTC options available to provide price stability 
and lower costs.
    Additionally, the effect of margin requirements resulting 
from mandatory clearing for electric utilities could have the 
unintended consequence of reducing or eliminating legitimate 
hedging practices and jeopardizing or reducing investments in 
such things as Smart Grid technology and other infrastructure.
    We recognize the intent of the legislation is to minimize 
or eliminate manipulation in the OTC market, especially by 
speculators. One approach to address this concern is to have 
the mandatory requirements and a carefully crafted exemption 
from the requirements for legitimate utility transactions.
    Another concern that NARUC members have is the effect the 
various legislative proposals may have upon electric 
transmission entities. The proposed reforms, as we understand, 
would cause regulatory uncertainty with regard to the oversight 
of regional transmission organizations and independent system 
operators. This uncertainty and/or overlapping jurisdiction can 
lead to negative effects on liquidity, market confidence, and 
reliability.
    NARUC believes that the Federal Energy Regulatory 
Commission and, for the Texas/ERCOT region, the Public Utility 
Commission of Texas, as the regulators with the necessary 
expertise and statutory mandates to oversee wholesale 
electricity markets to protect the public interest and 
consumers. Energy markets currently regulated by FERC and PUCT 
under accepted tariffs or rate schedules should continue to be 
subject to their jurisdiction, including over physical and 
financial transmission rights and market oversight, and should 
not be themselves subject to CFTC jurisdiction as a 
clearinghouse due to the financial and other settlement 
services they provide those transacting in regional electricity 
markets.
    In conclusion, NARUC supports passage of financial reform 
legislation ensuring that electric and natural gas markets 
continue to have access to OTC risk management products as a 
tool in their legitimate hedging practice to provide more 
predictable and less volatile energy costs to consumers, and 
would respectfully offer the following policy recommendations 
for inclusion in any financial reform legislation.
    The legislation should weigh the costs of potential end-
user cost increases versus the benefits of new standards for 
the clearing of OTC risk management contracts.
    Any Federal legislation addressing OTC risk management 
products should provide for an exemption from mandatory 
clearing requirements for legitimate utility hedging 
activities.
    Any exemption to the mandatory clearing requirement for OTC 
derivatives should be narrowly tailored so as not to allow 
excessive speculation in natural gas and electricity markets.
    FERC should continue to be the exclusive regulator at the 
Federal level--and the PUCT for Texas/ERCOT--charged with the 
statutory obligation to protect the public interest and 
consumers, with authority to oversee any agreements, contracts, 
transactions, products, market mechanisms, or services offered 
or provided pursuant to a tariff or rate schedule.
    Thank you and I would be happy to answer questions later.
    [The prepared statement of Mr. Brown follows:]
  Prepared Statement of Garry Brown, Chairman, New York State Public 
Service Commission, on Behlaf of the National Association of Regulatory 
                         Utility Commissioners
    Good morning Chairman Bingaman, Ranking Member Murkowski, and 
Members of the Committee: My name is Garry Brown, and I am Chairman of 
the New York State Public Service Commission (NY PSC). I also serve as 
Chair of the Electricity Committee of the National Association of 
Regulatory Utility Commissioners (NARUC), on whose behalf I am 
testifying here today. I am honored to have the opportunity to appear 
before you this morning and offer our perspective on financial 
transmission rights and electricity market mechanisms.
    NARUC is a quasi-governmental, non-profit organization founded in 
1889. Our membership includes the public utility commissions serving 
all States and territories. NARUC's mission is to serve the public 
interest by improving the quality and effectiveness of public utility 
regulation. Our members regulate the retail rates and services of 
electric, gas, water, and telephone utilities. We are obligated under 
the laws of our respective States to assure the establishment and 
maintenance of such utility services as may be required by the public 
convenience and necessity and to assure that such services are provided 
under rates and subject to terms and conditions of service that are 
just, reasonable and non-discriminatory.
    Congress is currently considering financial reform legislation with 
the goal of ensuring that gaps in regulation, oversight of markets and 
systemic risk do not lead to economic instability, but improve 
transparency and reduce systemic risk in the over-the-counter (OTC) 
derivatives markets. NARUC has consistently supported federal 
legislative and regulatory actions that fully accommodate legitimate 
hedging activities by electric and natural gas utilities; however, we 
are concerned that some legislative proposals could have adverse 
effects on the retail rates of electric and natural gas consumers.
    It is our understanding that some of the proposals being 
contemplated by Congress would provide the Commodity Futures Trading 
Commission (CFTC) with oversight of OTC risk management products, 
including mandatory centralized clearing and exchange trading of all 
OTC products. NARUC believes that this approach could be detrimental to 
electricity and natural gas retail consumers. There is a diverse group 
of end-users, consisting of electric and natural gas utilities, 
suppliers, customers, and other commercial entities who rely on OTC 
derivative products and markets to manage electricity and natural gas 
price risks for legitimate business purposes, thereby helping to keep 
commodity costs stable for retail consumers. In these situations, the 
mandatory centralized clearing of all OTC contracts--as envisioned in 
proposed legislation--will increase expenses associated with hedging 
activity, and ultimately end-user prices, due to increased margin 
requirements.
    Electric and natural gas companies use derivatives to ``hedge,'' or 
lock in, the price of commodities they plan to buy or sell in the 
future. These companies use clearinghouses and exchanges (such as the 
New York Mercantile Exchange or NYMEX) when those markets provide the 
best deal. Often, however, OTC transactions--which are arranged 
company-tocompany or between a company and a bank--provide the lowest 
cost and/or the most stable pricing. In centralized clearing and 
exchange trading, the clearinghouse or exchange steps between buyers 
and sellers and guarantees payment by requesting a significant cash 
``margin'' from both parties. These cash margins, a form of collateral, 
represent a portion of the value of each contract. For companies whose 
core businesses involve buying and selling energy commodities, cash 
margin requirements would translate into significant additional 
borrowing costs and/or reduced investment, which could require new 
borrowing at a time when business loans and other financing are both 
more expensive and harder to get.
    State utility commissions regulate companies that rely on 
legitimate hedging activities and transactions in natural gas and 
electricity markets to keep commodity costs stable for retail 
customers. These companies use both exchange-traded and OTC derivatives 
to reduce their exposure to volatile spot markets, which enables them 
to make sound medium-and long-term business decisions. A requirement 
for mandatory centralized clearing of all OTC contracts would increase 
the expenses associated with hedging activity, and ultimately consumer 
prices, due to increased margin requirements.
    Utilities would have to finance needed cash margins in the capital 
markets--and pass those costs to customers through the ratemaking 
process--or take other offsetting actions, such as cutting back capital 
projects. Similarly, public utilities could lose access to long-term 
electric power supply contracts called pre-pays because the expense of 
ongoing cash margins would be prohibitive. We also understand that 
rural electric cooperatives could be forced to borrow large sums at 
unaffordable rates. In cases where these costs would prove to be too 
high, the energy supplier would need to reduce or even cease hedging 
altogether, thus negatively impacting the ability to manage price 
volatility--resulting in higher costs to consumers. In short, consumers 
need the industry to have both cleared and OTC options available to 
provide price stability and lower costs.
    Additionally, the effect of margin requirements resulting from 
mandatory clearing for electric utilities could have the unintended 
consequence of reducing or eliminating legitimate hedging practices and 
jeopardizing or reducing investments in Smart Grid technology and other 
infrastructure; similarly, natural gas utilities and production 
companies could reduce capital devoted to infrastructure and natural 
gas exploration.
    We believe that the laudable goals of reform that ensure market 
transparency and adequate regulatory oversight can be accomplished by 
means other than mandatory clearing of OTC risk management contracts 
and the anticipated extra expense. For example, a requirement that 
natural gas and electric market participants engaging in legitimate 
hedging report all OTC derivative transactions to a centralized data 
repository, like the CFTC, would provide sufficient market transparency 
without the costs associated with mandatory clearing.
    We recognize the intent of the legislation to minimize or eliminate 
manipulation in the OTC market, especially by speculators. One approach 
to address this concern is to have the mandatory requirements and a 
carefully crafted exemption from the requirements for legitimate 
utility transactions.
    Another concern that NARUC members have is the effects the various 
legislative proposals may have upon electric transmission entities. The 
proposed reforms, as we understand, would cause regulatory uncertainty 
with regard to the oversight of Regional Transmission Organizations 
(RTOs) and Independent System Operators (ISOs). This uncertainty and/or 
overlapping jurisdiction can lead to negative impacts on liquidity, 
market confidence and reliability.
    NARUC believes the Federal Energy Regulatory Commission (FERC) and, 
for the Texas/ERCOT region, the Public Utility Commission of Texas 
(PUCT), as the regulators with the necessary expertise and statutory 
mandates to oversee wholesale electricity markets to protect the public 
interest and consumers, should not be preempted by financial reform 
legislation from being able to continue exercising their authority to 
protect consumers and ensure reliable, just and reasonable service. 
Energy markets currently regulated by FERC and the PUCT under accepted 
tariffs or rate schedules should continue to be subject to FERC or PUCT 
jurisdiction, including over physical and financial transmission rights 
and market oversight, and should not themselves be subject to CFTC 
jurisdiction as a clearinghouse due to the financial and other 
settlement services they provide those transacting in regional 
electricity markets.
    In conclusion, NARUC supports passage of financial reform 
legislation ensuring that electric and natural gas market participants 
continue to have access to OTC-risk management products as tools in 
their legitimate hedging practices to provide more predictable and less 
volatile energy costs to consumers, and would respectfully offer the 
following policy recommendations for inclusion in any financial reform 
legislation:

   The legislation should weigh the costs of potential end-user 
        utility cost increases versus the benefits of new standards for 
        the clearing of OTC-risk management contracts used by natural 
        gas and electric utilities for legitimate hedging purposes.
   Any federal legislation addressing OTC-risk management 
        products should provide for an exemption from mandatory 
        clearing requirements for legitimate utility hedging activity 
        in natural gas and electricity markets.
   Any exemption to the mandatory clearing requirement for OTC 
        derivatives should be narrowly tailored so as not to allow 
        excessive speculation in natural gas and electricity markets.
   FERC should continue to be the exclusive regulator at the 
        Federal level--and the PUCT for Texas/ERCOT--charged with the 
        statutory obligation to protect the public interest and 
        consumers, with authority to oversee any agreement, contract, 
        transaction, product, market mechanism or service offered or 
        provided pursuant to a tariff or rate schedule filed and 
        accepted by the FERC, or the PUCT for Texas/ERCOT.

    Thank you and I would be happy to answer any questions.

    The Chairman. Thank you very much.
    Mr. Duane, go right ahead.

   STATEMENT OF VINCENT P. DUANE, VICE PRESIDENT AND GENERAL 
      COUNSEL, PJM INTERCONNECTION, L.L.C., NORRISTOWN, PA

    Mr. Duane. Thank you. Good morning, Mr. Chairman, Ranking 
Member Murkowski, and members of the committee. I am delighted 
to be here. Thank you for the invitation.
    The focus of the jurisdictional debate between the CFTC and 
FERC, at least the live question that we are facing today, is 
focused on the organized wholesale electricity markets. These 
ISO/RTO environments have been created as a product of FERC 
regulatory initiative. We are operators, grid operators, with 
the responsibility to keep the lights on, and we administer 
markets, but these are markets unlike any other. These are very 
heavily regulated markets, reduced to writing, and filed as 
tariffs before the FERC.
    So why have these environments attracted this attention? 
Concededly, there are certain products that you will see in 
these organized wholesale electricity markets that have 
financial elements to them. They are forward, and the 
environment itself is a centralized environment. So there are 
appearances in these ISO/RTO environments that look like 
exchanges and there are products that have attributes that look 
like derivatives that have been traditionally the focus of the 
CFTC.
    I am not here today to speak to some of the issues my 
industry colleagues will address in the OTC markets. I am not 
here to talk about mandatory clearing or end-use exemptions. I 
am here just on the question of the ISO/RTO organized markets 
and the products and services they provide. I am here for PJM, 
but you will see an attached statement to my testimony that 
reflects the thoughts of the Midwest ISO in Carmel, Indiana; 
the Southwest Power Pool in Little Rock, Arkansas; the 
California ISO; and ERCOT in Austin, Texas.
    Speaking of the products, the focus is the FTR product. 
What needs to be understood here is that the FTR is the means 
by which we as a transmission provider discharge our obligation 
to provide firm transmission service under FERC's open access 
regime. The full complement of FTRs, which is derived from the 
physical capability of the transmission system, is allocated to 
the transmission customers that pay for the transmission 
system. It is not decorative architecture. It is not a 
financially engineered product that we market, and we market to 
whomever wants to buy it at whatever volumes. Rather, it is 
integral to our function as a transmission service provider 
squarely under the Federal Power Act and the FERC jurisdiction.
    As far as some of the services, we clear and risk manage 
this FTR bilaterally not in a multilateral manner. As a result, 
the DCO, or the derivatives clearing organization, principles 
that you will find in the Commodity Exchange Act are just 
wholly unworkable for the functions we provide predominantly 
because the RTO is not engaged in what I would view as the 
hallmark of a clearinghouse organization, that being 
multilateral clearing.
    So what we are proposing is that there should be a bright 
line. There should be some clarity that reflects the existing 
architecture in these wholesale electricity markets and 
reserves the jurisdiction, as has been the case for the past 10 
years, to the Federal Energy Regulatory Commission. If 
necessary, complementary clarity can be given to the CFTC, 
recognizing their primacy in the area of exchange environments, 
clearinghouse environments, and to the extent they have 
jurisdiction over the financial OTC products. I think that is a 
clarity that can be brought.
    I want to close on the question of investigation and 
enforcement. There has been much debate in this area. I do not 
think the issue is so much a question of competing or 
overlapping jurisdiction. I think it is one of coordination. 
Schemes can be put in place by unscrupulous market participants 
that are multidimensional that cut across interrelated markets 
and interrelated environments with different regulators 
providing oversight.
    What we should do in any legislation is in the interests of 
consumer protection and sound public policy, encourage 
interagency coordination in these areas, build on the 
cooperative models that are already in place between the FERC 
and the CFTC to encourage data sharing and other coordination 
in this area.
    With that, let me close and make myself available to 
questions. Thank you.
    [The prepared statement of Mr. Duane follows:]
  Prepared Statement of Vincent P. Duane, Vice President and General 
          Counsel, PJM Interconnection, L.L.C., Norristown, PA
    My name is Vincent Duane and I serve as the Vice President and 
General Counsel for PJM Interconnection, L.L.C. (``PJM''). PJM is a 
FERC-regulated Regional Transmission Organization (``RTO'') responsible 
for ensuring the reliable and non-discriminatory planning and operation 
of the transmission grid and the fair and efficient administration of 
wholesale electric markets. PJM serves 51 million people in an area 
that includes all or parts of New Jersey, Pennsylvania, Delaware, 
Maryland, the District of Columbia, Virginia, North Carolina, West 
Virginia, Kentucky, Ohio, Michigan, Indiana, Illinois and Tennessee--an 
area representing approximately 19 percent of the nation's Gross 
Domestic Product.
    Thank you Chairman Bingaman and the Committee for inviting PJM to 
address this important subject. We recognize this Committee's key role 
in considering the impact of proposals to effect regulatory reform of 
our nation's financial markets.
    Our country's financial markets are both varied and complex. And 
while the innovation and evolving sophistication of our financial 
institutions should be encouraged generally in order to manage risk, 
spur investment and realize efficiencies, the need for increased 
supervision over the trading of certain products in certain 
environments can no longer be doubted. However, let's keep our ``eye on 
the ball'' by recalling why and where we need regulatory reform.
    Consider those products related to the purchase, sale and 
transmission of electricity which are undertaken in fully transparent 
environments administered by the nation's Regional Transmission 
Organizations (``RTOs'') and Independent System Operators (``ISOs''). 
The transacting of these products in these environments should not be 
seen as warranting either a new regulator or a new regulatory 
construct. This is so, quite simply because the RTO/ISO products and 
their environments are already subject to comprehensive and proactive 
regulation by the Federal Energy Regulatory Commission (``FERC'').
    With Congress' help, much important work needs to be done by the 
Commodity Futures Trading Commission (``CFTC'') to increase oversight 
and control and restore to a sounder footing the trading of certain 
financial products, such as swaps, in certain environments, such as 
over-the-counter platforms. But to direct the CFTC through the passage 
of new legislation or enable the CFTC, under an expansive 
interpretation of the existing Commodity Exchange Act, to assert 
regulatory jurisdiction in an area already fully occupied by the FERC 
is wasteful and an unwelcome distraction from the important job of the 
day: reforming the oversight of those products and trading environments 
that are unduly opaque and presently are lightly or inadequately 
supervised.
    Although I am testifying solely on behalf of PJM, several of the 
other RTO/ISOs, including the California ISO (operating in California), 
the Southwest Power Pool (operating in all or parts of the states of 
Kansas, Nebraska, Arkansas, Missouri, Oklahoma, New Mexico, Texas, and 
Louisiana), ERCOT (operating in the state of Texas) and the Midwest ISO 
(operating in 13 states in the Midwest) have authorized PJM to 
represent their concurrence in the attached statement reflecting 
sentiments and concerns similar to those stated in my testimony on 
behalf of PJM. See Attachment A, ``Joint Statement of Identified RTOs/
ISOs''.
1. What Is PJM?
    PJM is a FERC-regulated RTO responsible for ensuring the reliable 
and non-discriminatory planning and operation of the transmission grid 
and the fair and efficient administration of wholesale electric 
markets. The PJM region incorporates 56,000 miles of transmission 
lines, 1,250 generating plants and 6,000 substations. PJM has 250 
intertie points with adjacent systems in the Eastern Interconnection, 
which means that along with managing the PJM system, our operators 
manage the interface between PJM and seven adjacent electric systems.
2. Overview of this Testimony
    My testimony today will address the following areas:

   An overview of the extensive involvement of FERC in both the 
        creation and oversight of RTO/ISOs;
   A description of certain RTO/ISO forward markets which some 
        contend are subject to oversight by the CFTC;
   The extensive regulation of these RTO/ISO forward markets by 
        FERC and the Congress' authorization of these markets under 
        FERC jurisdiction;
   The incongruity of CFTC regulation if applied to direct how 
        RTOs/ISOs establish their products or perform their services 
        and the problems that would arise from inconsistent, or worse, 
        conflicting regulation should the CFTC seek to apply existing 
        Commodity Exchange Act provisions to these products or 
        functions; and
   A potential legislative path forward that symmetrically 
        defines the exclusive functions belonging to each agency and 
        similarly defines those areas where shared interests and 
        jurisdiction are implicated and thus where inter-agency 
        coordination is warranted.

3. An Overview of FERC Regulation of RTO/ISOs
    PJM is one of seven RTO/ISOs in the United States. Together these 
entities serve over two-thirds of the nation. The map* below depicts 
the respective operational areas for each of the RTOs.
---------------------------------------------------------------------------
    * Map has been retained in committee files.
---------------------------------------------------------------------------
    RTO/ISOs are a creature of FERC regulation and Congressional 
pronouncements. These independent electricity grid operators were 
established to fulfill Congressional policy by introducing competitive 
forces to liberalize the traditional monopolistic utility industry. The 
restructuring of the industry began with the Public Utility Regulatory 
Policies Act of 1978, which introduced nascent competition to the 
supply (generation) side of the industry. This legislation was followed 
by a succession of laws, including the Energy Policy Act of 1992, which 
began efforts to unlock the bulk delivery (transmission) side of the 
industry. From these beginnings emanated FERC's landmark Orders No. 888 
and No. 2000 in 1996 and 1999 respectively. These orders demonstrate 
FERC's commitment to independent, ``open access'' operation of the 
power grid (not dissimilar from how air traffic controllers operate 
independently from individual airlines). FERC determined that RTO/ISOs 
were the best means to effectuate the open access provisions of the 
Energy Policy Act of 1992. While neither Congress nor FERC has ever 
compelled transmission owners to cede control over their transmission 
systems to independent operators, this Committee and Congress 
affirmatively encouraged this action by instructing FERC, through 
section 219(c) of the Energy Policy Act of 2005, to offer rate 
incentives to transmission owners that joined such organizations.\1\
---------------------------------------------------------------------------
    \1\ As the majority of the Texas grid is wholly intrastate and not 
interconnected with the rest of the Eastern Interconnection, the 
Electric Reliability Council of Texas (ERCOT) operates as an ISO in the 
state of Texas. Other than for regulation of ERCOT's compliance with 
national reliability standards, ERCOT is subject to the regulation of 
the Public Utility Commission of Texas rather than the FERC.
---------------------------------------------------------------------------
    This history of Congressional and FERC action introducing 
competitive forces to the utility industry is sometimes referred to as 
``deregulation.'' But as was often noted by former FERC Chairman Joseph 
Kelliher, this terminology, particularly when applied to describe the 
functions of RTO/ISOs, is entirely misleading. In point of fact, FERC's 
regulation of RTO/ISOs is pervasive. Moreover, unlike market regulators 
(such as the Securities and Exchange Commission and the CFTC) whose 
functions are probably best described as oversight based upon required 
disclosure, FERC is a traditional ``rate regulator'' with a mandate 
grounded in the Federal Power Act of 1935. What distinguishes FERC from 
those agencies overseeing the financial and commodity markets is its 
obligation to ensure that prices in wholesale electricity markets, and 
the terms and conditions of the various products and services used to 
establish prices in these markets, are ``just and reasonable.''
    Each of the many functions performed by RTOs/ISOs as grid operators 
and market administrators is measured against this standard. Unlike 
clearinghouses, exchanges, boards of trade and the like, RTOs and ISOs 
cannot establish unilaterally their rules of operation provided only 
that those rules conform to broadly stated principles or best 
practices. Instead, RTOs/ISOs are subject to a FERC-administered 
program comprehensively regulating their planning of the transmission 
grid, their dispatch of generation operation of the grid, their 
compliance with reliability standards and their administration of the 
markets they operate. As a consequence, every material action taken by 
an RTO/ISO in performing these functions must be authorized by a rule. 
Every rule must be embodied in a tariff, which is designed through an 
open process with active participation by the customers subject to 
these rules. And every tariff provision must be filed with and 
adjudicated by the FERC to meet the requirements of the Federal Power 
Act.\2\
---------------------------------------------------------------------------
    \2\ 16 USC 824d Sec.  205.
---------------------------------------------------------------------------
    Moreover, RTOs/ISOs' administration of markets cannot be separated 
from their operation of the grid. Rather, RTOs/ISOs rely on the markets 
they operate as tools to more efficiently dispatch generation, manage 
congestion on the grid and ensure that electricity procured through the 
RTO and ISO spot markets is provided at the least cost to wholesale 
customers. RTOs/ISOs operate according to the principle that 
competitive forces employed in transparent market environments provide 
price signals that incentivize behavior consistent with the reliable 
day-to-day operation of grid.
4. Financial Transmission Rights in RTOs/ISOs
            (a) What is An FTR?
    I have spoken thus far of ``products'' and ``environments.'' The 
RTO/ISO environments offer a product known as a ``financial 
transmission right'' or FTR to ensure ``firm'' transmission for 
electric transmission customers. Because this product is integral to 
the functioning of RTO/ISO markets, it has been in existence in PJM 
more or less since the inception of our markets. Despite successful 
operation of the FTR product, under FERC regulation, for more than 10 
years in PJM, this product has recently drawn renewed attention from 
the CFTC.\3\
---------------------------------------------------------------------------
    \3\ Certain RTOs and ISOs operate forward capacity markets. These 
markets have even less of the attributes of a futures product than the 
FTR referenced herein.
---------------------------------------------------------------------------
    The FTR is a forward right or obligation with some attributes seen 
in swap contracts and other attributes seen in futures contracts.\4\ 
But several other essential attributes of FTRs are entirely unique so 
as to strain even the most liberal definition of a swap or futures 
contract, as those terms are employed, respectively, in the H.R. 3795 
and the Commodity Exchange Act. Moreover, as I will explain, the FTR is 
a necessary component to the means by which RTOs/ISOs discharge their 
basic mission in providing open access transmission service and 
ensuring just and reasonable market outcomes for consumers--a mission 
whose regulation Congress has squarely entrusted to FERC.
---------------------------------------------------------------------------
    \4\ As noted in the Joint Statement of RTOs/ISOs, Attachment A, 
other RTOs/ISOs make available similar products to what is known in PJM 
as a ``Financial Transmission Right'' or ``FTR''. Although the products 
may have a different name in each RTO or ISO, they all operate 
essentially the same.
---------------------------------------------------------------------------
    With the establishment by RTOs/ISOs of organized wholesale 
electricity markets, a system was needed to prioritize equitably firm 
access to the grid. Transmission customers, typically utilities and 
competitive suppliers serving retail consumers, pay a priority charge 
to receive ``firm'' transmission service. Firm service allows these 
customers to deliver, with a high degree of certainty, energy from 
resources located in one place on the grid to meet consumption located 
in a different place on the grid. Yet the ability of any transmission 
system to deliver electricity from point A to point B is limited by the 
physical capability of the system to transfer power within the bounds 
of the thermal and voltage constraints governing reliable operation of 
the system.
    The electricity markets operated by RTOs/ISOs typically employ a 
construct known as ``locational marginal pricing'' or LMP to signal 
demand for and attract supply of wholesale electricity. This means 
simply, that the real time price of electricity at point A may differ 
from the price at point B depending on whether the transmission system 
can deliver the lowest cost electricity generated by the marginal 
resource on the system to points A and B. As administered by RTOs/ISOs, 
LMP reflects the actual cost of delivering electricity from point A to 
point B in a manner corresponding to the physical flow of electrons on 
the grid between these two points. As compared to non-RTO/ISO 
transmission systems, LMP markets allow for a more efficient use of the 
transmission system by avoiding unnecessary curtailment of service and 
inaccurate and distorted pricing of transmission service whereby 
certain customers must subsidize in their rates the service provided to 
others. The provision of transmission service in LMP markets, however, 
exposes customers, including firm transmission customers, to price 
volatility when there is congestion on the grid.
    RTOs/ISOs solve this problem by providing firm transmission 
customers with FTRs. In a nutshell, these financial transmission rights 
provide the holder a right to deliver power from point A to point B 
with protection against the risk that prices at point B might be higher 
than at point A. PJM allocates FTRs principally to utilities that serve 
retail customers (including cooperatives, municipal utilities and 
competitive retail providers in those states with programs to instill 
competition in retail service). These rights in total reflect the 
physical capability of the transmission system to deliver electricity; 
they are finite and their number is determined through analyses 
conducted by the RTO/ISO. The allocation of these finite rights is made 
to those transmission customers representing consumers that have paid 
for the fixed investment in the transmission system and are thus 
entitled to rights to the electricity transfer capability of this 
system. The FTR is the means by which RTOs/ISOs in LMP markets assure 
the provision of ``firm transmission,'' consistent with FERC's open 
access directives, such that these customers are protected against the 
price volatility associated with multiple transactions occurring 
through constrained parts of the grid.\5\
---------------------------------------------------------------------------
    \5\ Pennsylvania-New Jersey-Maryland Interconnection, 81 FERC  
61,257 at  62,240-241 (1997).
---------------------------------------------------------------------------
    As I hope is apparent, the FTR is inextricably linked to both the 
locational priced energy markets and the provision of firm transmission 
service by RTOs/ISOs. It is also closely linked to the transmission 
system planning processes--the means by which the grid is expanded to 
meet growing need--another set of RTO/ISO functions subject to 
extensive FERC regulation. In theory, a transmission system could be 
built to accommodate all desired delivery transactions without 
congestion--which is to say, without a price difference between points 
A and B. In this system, FTRs would be unnecessary. In fact, some might 
comment that the role of the RTO/ISO should be to design, build and 
operate a transmission system so robust as to eliminate FTRs.\6\ And 
while it is true that RTO/ISOs look for opportunities on their systems 
to eliminate points of chronic congestion by expanding transfer 
capability and thereby reducing the need for FTRs, in reality all 
transmission planners must strike a balance between the costs and 
societal tolerance for massive transmission infrastructure versus the 
costs of congestion.
---------------------------------------------------------------------------
    \6\ In this respect, an RTO/ISO and its FTR product is quite 
distinct from financial institutions and the derivative instruments 
they design and market. While a financial institution is seeking to 
expand the market for the instruments it sells, RTOs/ISOs are 
continuously examining opportunities to enhance the physical capability 
of the grid so as to reduce the need for FTRs.
---------------------------------------------------------------------------
            (b) FERC and Congress' Historic Oversight of FTRs
    FERC Oversight--The FTR is rooted deeply both in FERC regulation as 
well as in actions of this Committee and the Congress as a whole. For 
instance, virtually from the inception of PJM's markets, FERC directed 
the creation of FTRs as a means to allocate to transmission customers 
equitable access to the transmission grid. In PJM, the FTR product was 
approved by the FERC more than a decade ago upon the creation of PJM's 
organized markets in 1997. In Pennsylvania-New Jersey-Maryland 
Interconnection, 81 FERC  61,257 (1997), FERC found that FTRs 
``provide an effective method of protecting against incurrence of 
congestion costs when suppliers engage in transactions that use their 
firm transmission service reservations.'' Id.   62,257, 62,260. FERC 
also concluded that PJM's ``allocation of FTRs'' to transmission 
providers ``to meet native load requirements (i.e. the customers for 
whom the transmission grid was planned and constructed in the first 
instance)'' was appropriate. Id.  62,260.
    In connection with these approvals, the Commission further found 
that there needed to be ``a process for auctioning FTRs beyond those 
retained by . . . transmission customers.'' Id.  62,260. Accordingly, 
in 1999, and after considerable scrutiny, FERC accepted PJM's design of 
an FTR auction process that would both (i) provide an efficient means 
to distribute excess FTRs, and (ii) allow FTR holders the choice to 
sell those FTRs which they had been allocated and buy FTRs on different 
pathways that might more effectively hedge their power supply 
procurements. PJM Interconnection, L.L.C., 87 FERC  61,054 (1999).
    Congress Has Directed FERC In Regulating FTRs--Congress' 
recognition of FTRs in organized wholesale electricity markets and its 
involvement in directing FERC in its regulation of this product is most 
evident from Section 217 of the Energy Policy Act of 2005 (the ``native 
load'' provision). Through Section 217, Congress directed FERC to:

          exercise the authority of the Commission under this Act in a 
        manner that . . . . enables load-serving entities to secure 
        firm transmission rights (or equivalent tradable or financial 
        transmission rights) on a long term basis for long term power 
        supply arrangements made, or planned, to meet such needs.

    This direction to FERC (as well as Congress' choice of FERC as the 
implementing agency) shows Congress' intent to treat FTRs as tools 
available to load serving entities to meet their power supply needs 
rather than as another type of derivative instrument to be regulated 
separately and, perhaps, inconsistently, by the CFTC, which would claim 
no expertise or experience regulating the interstate transmission of 
wholesale electricity.
    Congress further underscored the inextricable link of these rights 
to the underlying physical delivery of power to customers by creating, 
in Section 217(b) (2), an actual entitlement for load serving entities:

          to use the firm transmission rights, or equivalent tradable 
        or financial transmission rights, in order to deliver the 
        output or purchased energy, or the output of other generating 
        facilities or purchased energy to the extent deliverable using 
        the rights, to the extent required to meet the service 
        obligation of the load serving entity.

    Congress addressed how such rights are to be transferred by stating 
in section 217(b) (3) (A) and (B) that:

          (A) To the extent that all or a portion of the service 
        obligation covered by the firm transmission rights or 
        equivalent tradable or financial transmission rights is 
        transferred to another load-serving entity, the successor load-
        serving entity shall be entitled to use the firm transmission 
        rights or equivalent tradable or financial transmission rights 
        associated with the transferred service obligation.
          (B) Subsequent transfers to another load-serving entity, or 
        back to the original load-serving entity, shall be entitled to 
        the same rights.

    Congress also addressed the disposition of any excess rights not 
needed to meet an entity's load serving obligation by providing clear 
authority to FERC to address their disposition:

          CERTAIN TRANSMISSION RIGHTS--The Commission may exercise 
        authority under this Act to make transmission rights not used 
        to meet an obligation covered by subsection (b) available to 
        other entities in a manner determined by the Commission to be 
        just, reasonable and not unduly discriminatory or preferential.

    Finally, Congress directed FERC to undertake a rulemaking to 
implement portions of Section 217, a rulemaking that led first to FERC 
Order No. 681, a 250-page final rule on long term FTRs, followed by 
FERC Order No. 681-A, a subsequent rehearing Order on the subject, and, 
finally, compliance filings by the RTO/ISOs.
    In summary, through Section 217, Congress stated its intention that 
FERC regulate FTRs comprehensively, including their formation, initial 
allocation, and transfer among various entities, as well as the trading 
of any excess FTR rights available. PJM believes that Section 217 makes 
clear that the Congress intended for the FERC to act over FTRs because 
of their inextricable link to the underlying transmission grid and 
electricity market structure. The plain language of Section 217 
indicates, in our opinion, Congress' desire that the FERC's regulation 
should be pervasive in this area, guided by its expertise in 
transmission regulation.
    As a result, PJM believes clarification is sorely needed given the 
uncertainties introduced as a result of the potential for an expansive 
reading of the existing Commodity Exchange Act or potentially from new 
financial reform legislation to introduce overlapping regulation by two 
separate agencies.
5. The Problem Of Competing FERC and CFTC Jurisdiction
    As mentioned at the outset of my testimony, the wisdom in holding 
today's hearing is that it offers an opportunity to confirm whether we 
are keeping our ``eye on the ball'' as we develop needed financial 
market reform regulation. Aside from reasons of inter-agency comity, 
inefficient duplicative regulation, and distraction, there are 
immediate and practical reasons to delineate clearly in statute the 
respective regulatory responsibilities of FERC and the CFTC when it 
comes to RTO/ISO products and environments.
    The notion of dual or overlapping jurisdiction in this area is 
challenged by the exclusivity of jurisdiction afforded to the CFTC 
through the Commodity Exchange Act and reinforced through proposed 
reform legislation. For instance, the existing Commodity Exchange Act 
states that where a contract falls under provisions of the Commodity 
Exchange Act, it is subject to the ``exclusive jurisdiction'' of the 
CFTC. See CEA Sec.  2(a)(1)(A), 7 U.S.C. Sec.  2(a)(1)(A). This grant 
of exclusive authority raises at least the potential that FERC could be 
divested of any jurisdiction over the FTR and any market settlement 
functions involving FTRs that the CFTC might regard as ``clearing.'' 
Yet, as I trust is evident from this testimony, the FTR does not stand 
in isolation from other market, grid operation and grid planning 
functions performed by RTOs/ISOs and that are regulated comprehensively 
by FERC. The FTR is not merely decorative to the architecture of RTO/
ISO programs; it plays an integral role in the basic design of these 
programs.
    At least four concerns are apparent.
    First, the ``exclusivity'' provision of the Commodity Exchange Act 
could cause the FTR and its transaction and settlement functions being 
subjected to less control under CFTC oversight than they are today 
under FERC rate regulation. FERC's regulatory paradigm of tariff 
filings and agency adjudication is considerably more extensive and 
intrusive than the market oversight performed by the CFTC. Neither the 
RTOs/ISOs that administer the transacting and settlement of FTRs nor 
industry participants in the FTR markets support an outcome that would 
result in less regulation of this product.
    Second, if the FTR is subjected to settlement, clearing and credit 
risk management principles well suited for many financial instruments, 
but incongruous to FTRs, the future of the FTR in RTO/ISO markets is 
quite uncertain. Again, this consequence might not be terribly 
problematic if the FTR could be regarded as a ``nice to have'' risk 
management tool, but hardly indispensible to the needs of wholesale 
customers in managing their power purchases. As this testimony has 
tried to show, this is not the case. In fact, the FTR is essential to 
FERC's policy of ensuring that transmission customers, in RTO/ISO 
environments, can obtain firm open access service needed to meet the 
demands of their retail consumers. The FTR's importance to this 
objective is underscored by the attention this Committee paid to the 
product in the Energy Policy Act of 2005.
    Third, while the FTR auction markets attract some non-traditional 
energy market participants, including financial entities, it would be a 
mistake to therefore assume that these markets can be ``cleared'' under 
the Derivative Clearing Organization ``core principles'' currently in 
place under the Commodity Exchange Act.\7\ The FTR is infrequently 
priced through pre-scheduled auctions that generally occur once a 
month. Buyers of FTRs are not in any legal sense matched with sellers. 
While PJM manages the credit risk exposure presented by holders of some 
FTR positions, these positions are not ``marked-to-market'' by PJM and 
there is no workable method for variation margining. Due to these and 
other attributes unique to FTRs and despite much exploration, PJM has 
never found a CFTC-registered clearinghouse, including those active in 
clearing energy commodity transactions, interested in or able to clear 
the FTR positions of PJM's market participants. So, assuming that the 
practical consequences of CFTC oversight do not eliminate outright the 
FTR as PJM fears, the alternate scenario is one where the CFTC in 
bringing its expertise in overseeing market clearing and settlement, 
spends much time and resource requiring registration and reporting, 
only to find that no change or ``improvement'' to how our FTRs are 
transacted, settled and credit risk managed is achievable in a real or 
practical sense.
---------------------------------------------------------------------------
    \7\ CEA Sec.  5b(c)(2), 7 U.S.C. ' 7a-1(c)(2).
---------------------------------------------------------------------------
    Fourth, instruments traded in a manner or in an environment 
contrary to the requirements of the Commodity Exchange Act are, in a 
sense, ultra vires, and their enforceability is at risk of 
challenge.\8\ Somewhat ironically, the CFTC's renewed interest in the 
established FTR products, motivated presumably by a desire to reduce 
perceived systemic risk associated with FTR markets, may be having 
quite the opposite effect. Should the CFTC claim that the FTR is now 
jurisdictional under the Commodity Exchange Act, the legal integrity of 
these products becomes less certain and a risk materializes that a 
counterparty with outstanding obligations under an FTR might assert 
that the obligation is void and unenforceable. Injecting this risk into 
the FTR markets is completely unnecessary and easily avoided by 
Congress drawing clear jurisdictional bounds that recognize FERC's 
settled authority in this area.
---------------------------------------------------------------------------
    \8\ See, e.g., Transnor (Bermuda), Ltd. v. BP North America 
Petroleum, 738 F. Supp. 1472, 1990 U.S. Dist. LEXIS 4423, Comm. Fut. L. 
Rep. (CCH) P24829, 1990-1 Trade Cas. (CCH) P68998 (S.D.N.Y. 1990).
---------------------------------------------------------------------------
6. Complications Raised by the Wall Street Reform and Consumer 
        Protection Act of 2009 (HR 4173) and A Proposed Path Forward
    In closing, I would like to address the bill that passed the House 
of Representatives in December, 2009: the Wall Street Reform and 
Consumer Protection Act of 2009 (HR 4173) and respectfully offer 
suggestions for an alternate path forward.
    The House Bill acknowledges existing and potential future 
overlapping jurisdiction between the CFTC and FERC in the area of RTO/
ISO markets. It does not, however, seek to resolve this overlap; nor 
does the proposed legislation offer much by way of guidance to the 
affected agencies in collaborating to ensure RTOs/ISOs face a workable 
regulatory environment and one that does not afflict these markets with 
competing and inconsistent regulatory directive from separate agencies. 
Rather, the House Bill directs the CFTC and FERC to evolve a memorandum 
of understanding to resolve conflicting regulation and ensure 
cooperation and coordination where warranted.
    PJM believes legislation can, and should, reserve to FERC exclusive 
jurisdiction over the existing organized wholesale electricity market 
architecture administered by RTO/ISOs, which has operated effectively 
under FERC regulation for more than a decade.\9\ Similarly, new 
legislation offers the opportunity to reaffirm the CFTC's existing 
exclusive jurisdiction over exchange and clearinghouse environments and 
provide that agency expanded authority in over the counter energy 
markets.
---------------------------------------------------------------------------
    \9\ Organized wholesale electricity markets have not operated 
without flaw since their inception--the notable example being a failure 
in 2001-02 in the western markets, including the market operated by The 
California ISO. Importantly, this failure had little or nothing to do 
with credit risk management or market clearing functions where the 
CFTC's expertise lies. Rather, the problems at the time in that market 
are generally accepted to have resulted from (i) inadequate design of 
the complex rules defining the physical marketplace and (ii) actions by 
certain market participants to exploit these deficiencies. The CFTC 
would not profess expertise in this first area. And while its 
investigatory and enforcement expertise is exemplary, (i) effective 
enforcement in RTO/ISO markets demands a deep understanding of 
complexities characterizing the physical electricity market that only 
the FERC possesses, and (ii) since 2001-02, with passage of the Energy 
Policy Act of 2005, FERC has been vested with significant additional 
enforcement authorities and resources. In short, reference to the 
events in the western markets in 2001-02 is not a compelling basis to 
support the introduction of CFTC regulation to RTO/ISO markets.
---------------------------------------------------------------------------
    This ``bright line'' would distinguish clearly RTO/ISO environments 
from other electricity trading environments and would afford market 
operators, such as PJM, certainty that the products and services they 
make available under their FERC-accepted tariffs do not need further 
registration or approval by the CFTC in order to be fully compliant and 
legally sound. This clarity at the ``front end,'' which is to say with 
the establishment and definition of the RTO/ISO's products and services 
and the rules associated with them, will eliminate the potential of 
irreconcilable direction as to the same subject matter from different 
regulators.
    While perhaps desirable in theory, carrying forward this clarity 
beyond ``front end'' regulation to further define separate and distinct 
agency duties when it comes to the investigation and enforcement of 
fraudulent behavior or market manipulation (having ``one cop on the 
beat'') poses different challenges. Some degree of interrelationship 
among various trading environments is a reality that must be accepted 
in designing the optimum regulatory construct. A trading firm can put 
on a position in one market environment hoping to influence the value 
of other positions it may hold in a distinct market environment. This 
behavior is not uncommon and may be perfectly acceptable. But under 
particular circumstances such trading, coupled with fraudulent behavior 
and viewed holistically, could be manipulative or otherwise present an 
undesirable distortion of commodity prices. Where a scheme crosses two 
or more market environments implicating the respective jurisdictions of 
distinct regulators, inter-agency cooperation is plainly warranted in 
order to protect market integrity and consumer welfare. Legislation 
addressing concurrent FERC and CFTC enforcement jurisdiction should 
borrow from established principles of comity and cooperation that exist 
today among banking, securities and commodity regulators. By 
replicating these principles, legislation can either establish for the 
CFTC and FERC, or direct the agencies to themselves establish, similar 
protocols as are in place today between the CFTC and the Securities and 
Exchange Commission that describe shared duties and provide for more 
robust cooperation, including information sharing, when dealing with 
investigation and enforcement matters that cross agency boundaries.\10\
---------------------------------------------------------------------------
    \10\ Legislation could offer guidance to the agencies in this area. 
For instance, Congress could instruct that one enforcement agency defer 
to the lead of the other in whose jurisdictional area the alleged 
scheme principally originated.
---------------------------------------------------------------------------
    Finally, PJM is advocating for a ``bright line'' that would respect 
the existing FERC regulation of the current architecture of the 
electricity markets administered by RTOs/ISOs. While this architecture 
is regularly built out and redesigned by both FERC and the RTOs/ISOs 
themselves, legislation could anticipate the potential (which seems 
remote) for the RTO/ISO to develop in the future a wholly new class of 
products or programs that would be jurisdictional under the Federal 
Power Act, but also implicate provisions of the Commodity Exchange Act. 
The ``bright line'' we urge to protect the existing architecture of 
RTO/ISO markets from conflicting directives need not apply after the 
effective date of new legislation to wholly new programs--ones that 
cannot be envisioned today but might possibly evolve in RTO/ISOs at 
some future date.
    The following points and illustration summarize a possible 
legislative path forward:

   Congress should define the status quo, as of the effective 
        date of new legislation, and plainly state that the direct 
        regulation over the products and services provided for by an 
        RTO/ISO under its FERC filed tariff is exclusively the province 
        of FERC.
   Legislation can make equally clear that the direct oversight 
        of electricity products (financial swaps, futures contracts, 
        etc) in over-the-counter, exchange or clearinghouse 
        environments is solely the responsibility of the CFTC.
   Legislation can anticipate the possibility that RTOs/ISOs 
        might develop in the future wholly new products or services, 
        that while jurisdictional under the Federal Power Act and 
        therefore offered under FERC-accepted tariffs, still cross into 
        jurisdictional areas for which the CFTC has responsibility. In 
        these cases, directing that the two agencies negotiate a 
        workable sharing of functions could provide a compromise 
        meeting the needs of both agencies.
   Finally, legislation should distinguish between the direct 
        regulation, oversight, reporting and rule compliance of market 
        operators, from the important additional responsibility imposed 
        on each agency to investigate and prosecute manipulation and 
        schemes undertaken by market participants that are designed and 
        intended to distort pricing. Given the potential 
        interrelationship among exchange, over-the-counter and RTO/ISO 
        electricity markets, sound public policy warrants a high degree 
        of inter-agency coordination, to allow information sharing and 
        cooperation between the agencies in investigating and 
        prosecuting fraudulent activities that span two or more 
        interrelated market environments.
7. Conclusion
    Again, PJM thanks the Committee for the opportunity today to share 
our thoughts on the potential for FERC and CFTC dual and potentially 
inconsistent regulation of certain RTO/ISO products essential to load 
serving entities and thus retail electricity customers. PJM's fellow 
RTOs/ISOs that have endorsed the statements set forth in Attachment A 
also appreciate your consideration of their views. We stand ready to 
offer further assistance as the Committee reviews this important issue.
attachment a.--joint statement of california iso, electric reliability 
council of texas (``ercot''), midwest iso, pjm interconnection and the 
                          southwest power pool
          1. Financial transmission rights (FTRs) are an integral part 
        of the provision of firm transmission service. Although they go 
        by different names in each of the RTOs and ISOs, the products 
        are essentially the same. FTRs are awarded, initially to load 
        serving entities (i.e., providers of electricity to 
        residential, commercial and industrial customers) and others 
        who contribute to the fixed costs of the grid through their 
        payment of transmission rates. These customers have 
        historically shouldered the embedded costs of building and 
        maintaining the transmission system.
          2. FTRs are a financial instrument that can be created only 
        by the RTOs/ISOs as their number and composition is determined 
        based upon the transmission system topology and the physics of 
        physical power flows. As such, they differ substantially from 
        standardized, stand-alone derivatives in which parties exchange 
        cash flows based upon price changes tied to a notional quantity 
        of a commodity, but not inextricably tied to the actual 
        delivery of a physical commodity. Moreover, because FTRs are 
        inextricably intertwined with the electricity markets and 
        reliability functions of RTOs and ISOs, it is impractical and 
        inefficient to regulate FTRs separately or differently from the 
        underlying provision of electric transmission service.
          3. FTRs have been regulated by the FERC (and in the case of 
        ERCOT, the Public Utility Commission of Texas) since their 
        inception in the PJM market over 10 years ago. In addition, 
        Congress determined in EPACT 2005 that FTRs are integrally tied 
        to meeting the power procurement needs of load serving 
        entities. FERC not only regulates FTRs, but FERC directed PJM 
        and other ISOs/RTOs to develop a hedging tool to allow load 
        serving entities to manage congestion risk associated with 
        their longer term power procurements. By the same token, the 
        portion of the Texas grid served by ERCOT is entirely 
        intrastate. As a result, regulation of FTRs in Texas is 
        undertaken by the Public Utility Commission of Texas in a fully 
        integrated manner.
          4. Duplicative or conflicting regulation of financial 
        transmission rights is not in the interest of consumers. FERC 
        (and, in the case of ERCOT, the Texas PUC) should be able to 
        maintain their respective roles as the regulators of these 
        products given their pervasive regulation of both ISO/RTO 
        markets and the provision of transmission service by ISOs/RTOs. 
        This regulation comprehensively spans the full span of physical 
        grid operations--from the planning of the transmission grid, to 
        ensuring day to day reliability of the grid, to the dispatch of 
        generation and demand resources to meet consumption in real 
        time. The uncertainty created by the unclear regulation of FTRs 
        under current law as well as complications created by the 
        provisions of the new legislation should be addressed in the 
        legislation now being considered.
          5. Although the RTOs and ISOs do not believe that Congress 
        intended there be two regulators of the FTR product, the RTOs 
        and ISOs do believe that cooperation is needed in areas where 
        activities in a CFTC-regulated market may affect a FERC or 
        Texas PUC-regulated market and vice versa. This is not an area 
        of regulatory overlap, but instead an area where the exercise 
        of the authority of each regulator over their respective 
        jurisdictional market should be coordinated and complementary. 
        As a result, cooperation, including data sharing, should be 
        required by this Congress in those areas where FERC's or the 
        Texas PUC's regulation of the RTOs and ISOs has an impact on 
        CFTC's regulation of markets under its jurisdiction and vice 
        versa.

    The Chairman. Thank you very much.
    Next is the Honorable Joseph Kelliher who used to be head 
of FERC, of course, and we are glad to have him back before the 
committee. Go right ahead.

  STATEMENT OF JOSEPH T. KELLIHER, EXECUTIVE VICE PRESIDENT, 
 FEDERAL REGULATORY AFFAIRS, FPL GROUP, INC., ON BEHALF OF THE 
    EDISON ELECTRIC INSTITUTE AND THE ELECTRIC POWER SUPPLY 
                          ASSOCIATION

    Mr. Kelliher. Thank you, Mr. Chairman, Ranking Member 
Murkowski, and members of the committee. I appreciate the 
invitation and it is good to be back before the committee. I 
took care to sit in Jon's seat when Chairman Wellinghoff got 
up. I thought that was the right seat for me to take.
    Thank you for the invitation to testify today on financial 
transmission rights and electricity markets and how that 
regulation may be impaired by financial regulatory reform 
legislation.
    I do also want to take the opportunity to offer views on 
over-the-counter energy commodities transactions and the need 
for an energy end-user exemption from any mandate to force OTC 
transactions onto exchanges.
    I am testifying today on behalf of EEI and EPSA.
    As FERC chairman, I was on the giving end of regulation. I 
am now on the receiving end of regulation, and it is a 
different perspective. But I want to offer both perspectives on 
really 2 fundamental questions before the committee and before 
the Senate: one, whether there should be an energy end-user 
exemption from any mandate to force exchange trading; and 2, 
whether exclusive FERC regulation of wholesale power and gas 
markets should be bifurcated by the introduction of CFTC 
regulation. We believe that, one, there is a need for an energy 
end-user exemption and that, 2, exclusive FERC regulation 
should not be disrupted by the introduction of CFTC regulation.
    EEI and EPSA support the goals of the administration and 
Congress to improve transparency, stability, and oversight of 
financial markets, including OTC derivatives markets. We do not 
disagree with the need for derivatives reform generally, but 
the rationale for OTC derivatives reform is to lower systemic 
risk and lower costs through transparency. However, energy 
derivatives, energy commodities played no role in the 2008 
financial crisis. Energy commodity trading poses no systemic 
risk. Commodities as a category represent about 1 percent of 
derivatives and energy commodities are a slice of that 1 
percent. So forcing exchange trading will not reduce risk 
associated with energy commodity trading, but it will have 
significant real costs to consumers.
    The collateral requirements will be tremendous, on the 
order of hundreds of millions of dollars for electricity 
companies. One example is with respect to PJM. Requiring 
electricity suppliers and PJM--last month, PJM held an auction. 
There was an auction in New Jersey. New Jersey acquires 
electricity supply for its utilities through an auction. That 
auction--New Jersey utilities purchased 2,500 megawatts for a 
3-year term last month. If that entire volume were forced to 
trade on an exchange, electricity suppliers would have had to 
post about $1 billion in collateral, and that $1 billion would 
have been added to the bids into the New Jersey market and that 
$1 billion would have been borne by New Jersey consumers. So 
dead capital used for collateral is better used elsewhere in a 
capital-intensive industry, for infrastructure such as new 
generation or transmission, for Smart Grid projects, energy 
efficiency, technology, clean energy projects.
    So while we disagree with the merit of forcing exchange 
trading, we agree on the need for greater transparency. We 
think that can be achieved with the reporting requirements 
rather than forcing exchange trading. So we do think there is a 
need for an express energy end-user exemption and that that 
exemption should not be too narrow.
    With respect to FERC regulation, I think there is a need 
for legislation to protect FERC's regulatory authority over 
FTRs and other energy products. There is, in my view, no 
justification for financial reform legislation to reform the 
regulation of wholesale power and gas markets that, frankly, 
require no reform. I think legislation should clarify the 
electricity products and services provided under FERC-approved 
tariff and subject to FERC regulation should be exempt from 
duplicative regulation by the CFTC.
    One example is FTRs. FERC has exclusive jurisdiction over 
transmission service. FTRs are inextricably connected to 
transmission open access service. They are a central means by 
which FERC assures transmission customers have firm, open 
access transmission service. A shift in jurisdiction would 
undermine open access transmission, something that has been 
important to Congress for 30 years.
    The stated rationale to introduce CFTC regulation of FTRs 
is the need to close a loophole, but I respectfully submit that 
there is no loophole. There is no regulatory gap. FTRs are 
comprehensively regulated by FERC. There is no need to subject 
these transactions to duplicative regulation. FTR auctions are 
governed by tariff rules set by FERC. The FTR transactions are 
fully transparent and that information is available through RTO 
Web sites. FTR markets are subject to the FERC anti-
manipulation rule and FERC has conducted investigations of 
alleged manipulation of FTR markets. So, in short, there is no 
gap.
    The House bill included an MOU that purported to address 
the regulatory concerns between FERC and CFTC jurisdiction, and 
I respectfully suggest that the MOU in the House bill will 
prove a completely ineffective means to resolve jurisdiction 
between the 2 agencies. I think Congress decides jurisdiction 
not agencies. That FERC and CFTC have an honest disagreement on 
interpreting the law, a disagreement that goes back 3 years, 
the disagreement revolves around the ambit of FERC's anti-
manipulation authority. That disagreement, I respectfully 
suggest, is not going away. But at this point, only courts or 
Congress can resolve the dispute between the agencies because 
it is, I think, an honest disagreement. They are reading the 
law differently. Then an MOU is no sort of resolution to the 
question.
    So with that, I thank you for the opportunity to testify, 
and I am happy to answer any questions you might have. Thank 
you.
    [The prepared statement of Mr. Kelliher follows:]
  Prepared Statement of Joseph T. Kelliher, Executive Vice President, 
 Federal Regulatory Affairs, FPL Group, Inc., on Behalf of the Edison 
      Electric Institute and the Electric Power Supply Association
    Mr. Chairman, Ranking Member Murkowski, and Members of the 
Committee: My name is Joseph T. Kelliher, and I am Executive Vice 
President--Federal Regulatory Affairs for FPL, Group, Inc. I appreciate 
the opportunity to appear before you today to testify about how 
financial transmission rights and other electricity market mechanisms 
may be impacted by the financial regulatory reform legislation which 
has passed the House of Representatives and is before the Senate.
    FPL Group is a public utility holding company headquartered in Juno 
Beach, Florida. FPL Group is one of the Nation's largest electricity 
companies, a premier clean energy company with two principal electric 
subsidiaries, NextEra Energy Resources, LLC, a competitive generation 
company that operates in 26 states and is the largest wind developer in 
the .United States, and Florida Power & Light Company, a vertically 
integrated utility in Florida. These two FPL Group companies own, 
operate or control nearly 43,000 megawatts of electric generation 
facilities. The issues the Committee is examining today are equally 
important to both NextEra Energy Resources and Florida Power and Light 
Company. They are as important to the ability of a vertically 
integrated utility to deliver reasonably priced electricity as they are 
to the ability of a wind developer and independent power producer to 
sell their electricity output.
    At FPL, Group, I am responsible for federal regulatory policy for 
both NextEra Energy Resources and Florida Power and Light Company. I 
have spent my entire professional career working on energy policy 
matters, serving in a variety of roles in both the public and private 
sectors. Previously, I served as Chairman of the Federal Energy 
Regulatory Commission (FERC), a FERC Commissioner, a senior policy 
advisor to the Secretary of Energy, and Majority Counsel to the House 
Energy and Commerce Committee. I also have had a variety of private 
sector roles.
    While FERC Commissioner, I asked Congress during development of the 
Energy Policy Act of 2005 to grant FERC authority to prevent and 
penalize market manipulation. I did so because I believed there was a 
regulatory gap in FERC's authority to prevent market manipulation that 
needed to be filled. During my chairmanship FERC implemented its anti-
manipulation rules and began to conduct market manipulation 
investigations. Many of these investigations were conducted jointly 
with the Commodity Futures Trading Commission (CFTC). Some FERC 
enforcement actions have resulted in jurisdictional disputes between 
FERC and CFTC.
    I am testifying today on behalf of the Edison Electric Institute 
(ELI) and the Electric Power Supply Association (EPSA). ELI is the 
trade association of U.S. shareholder-owned electric companies, with 
international affiliates and industry associate members worldwide. The 
U.S. members of ELI serve 95 percent of the ultimate electricity 
customers in the shareholder-owned segment of the industry and 
represent about 70 percent of the total U.S. electric power industry. 
EPSA is the national trade association for competitive wholesale power 
suppliers, including generators and marketers. EPSA members include 
both independent power producers and the competitive wholesale 
generation arms of certain utility holding companies. The competitive 
sector operates a diverse portfolio that represents 40 percent of the 
installed generating capacity in the United States. EPSA members do 
business nationwide, both in the two-thirds of the country served by 
Regional Transmission Organizations (RTOs) or Independent System 
Operators (ISOs) and the remaining one-third of the country dominated 
by traditional vertically-integrated utilities. My examples and context 
are from FPL Group's perspective but are representative of EFT and EPSA 
member concerns and requests.
    My testimony today:

   Details the importance of over-the-counter (OTC) derivatives 
        to well-functioning electric markets and explains the need for 
        a specific energy end-user exemption from any mandate that OTC 
        transactions clear or trade on CFTC-regulated exchanges; and
   Requests that the Committee support legislation to clarify 
        that electricity products and services provided under a FERC-
        approved tariff and subject to regulatory oversight by FERC, 
        such as financial transmission rights (FTRs), should be exempt 
        from duplicative regulation by the CFTC.

    EEI and EPSA support the goals of the Administration and Congress 
to improve transparency, stability, and oversight of financial markets, 
including OTC derivatives markets. However, when crafting legislation 
for that purpose, it is essential that policymakers preserve the 
ability of electric and natural gas companies to use OTC energy 
derivatives and similar financial products and FTRs for prudent, 
legitimate business purposes. A large group of end-users has 
communicated this message to Congress on numerous occasions).\1\ 
Further, a group of energy end-users that includes virtually the entire 
utility, electric power and natural gas industries has also emphasized 
the importance of these products to the energy sector.\2\ Utilities, 
independent electricity generators, renewable energy providers, and 
other market participants rely on these products and markets to manage 
wholesale electricity and natural gas price risk. By prudently managing 
our risk we are better able to keep rates stable and affordable for our 
consumers.
---------------------------------------------------------------------------
    \1\ See October 2, 2009 letter to Members of the U.S. House of 
Representatives and February 3, 2010 letter to Members of the U.S. 
Senate from the Coalition for Derivatives End-Users (attached).
    \2\ See January 21, 2010 letter to Members of the U.S. Senate from 
the Energy End-Users Coalition (attached).
---------------------------------------------------------------------------
    I recognize that this Committee does not have jurisdiction over the 
financial market reform legislation. However, you do have a very 
important jurisdictional issue at stake: Unless it is properly crafted, 
the financial market reform legislation will encroach upon this 
Committee's jurisdiction over electricity and natural gas markets 
regulated by FERC under the Federal Power Act and the Natural Gas Act. 
Specifically, it could interfere with wholesale electricity markets 
under FERC's jurisdiction that are managed and overseen by RTOs and 
ISOs and the market under the Public Utility Commission of Texas' 
jurisdiction in the case of the Electric Reliability Council of Texas 
(ERGOT). It could create a duplicative, overlapping and potentially 
conflicting regulatory regime with both FERC and the CFTC imposing 
regulatory requirements and overseeing transactions. It could shift 
regulatory jurisdiction from a consumer protection and reliability 
agency with expertise in electricity markets--an agency dedicated to 
assuring just and reasonable prices--to a financial regulatory agency 
with no such background or duty. The legislation will create tremendous 
regulatory uncertainty and introduce regulatory and business risk in an 
area where there is now repose. As a result, consumers would see higher 
prices for electricity and natural gas and greater price volatility.
    As I will explain, RTOs and ISOs efficiently dispatch generation 
resources to minimize fuel costs and enable the RTO/ISO customers 
(utilities, generators, marketers) to manage the cost of congestion on 
the transmission system by the use of FTRs. In our parlance, customers 
use FTRs to ``hedge'' their congestion costs. Some may argue that FTRs 
resemble a derivative product or swap that should be subject to the 
CFTC's jurisdiction. Indeed the RTOs and ISOs themselves could be 
subject to the CFTC's jurisdiction unless the reform legislation is 
properly crafted. However, in contrast to derivatives, FTRs are 
integrally tied to the physical delivery of electricity and must be 
physically feasible. Moreover, they provide a uniquely important 
hedging tool to electricity suppliers and consumers who produce, 
transport, and consume electricity on a continuous basis and do so in a 
fully transparent market. In addition, FTRs already are comprehensively 
regulated by FERC and the RTOs and ISOs themselves. There simply is no 
need to subject these transactions and organizations to costly, 
duplicative and potentially conflicting oversight by two agencies. This 
Committee clearly has a strong interest in making sure the legislation 
does not encroach on FERC's oversight authority over electric and 
natural gas markets.
    The Administration has called upon Congress to enact major 
financial reform legislation because of the dramatic failures we have 
experienced in financial markets and failed government oversight of 
those markets. Those failures simply are not present in electricity and 
natural gas markets regulated by FERC. In short, there is no regulatory 
gap that needs to be filled by expanded CFTC authority over markets 
currently effectively regulated by FERC.
    When considering any increased regulation and requirements for OTC 
derivatives markets, it is important to note that end-user commodity 
derivatives transactions do not pose the type of ``systemic risk''--
i.e., ``too big to fail''--that Congress is seeking to eliminate 
through the proposed legislation. In fact, from a quantitative 
perspective, the entire commodities market is less than one percent of 
the global OTC derivatives market, and the energy commodity portion is 
only a fraction of that one percent. Therefore, we believe that 
Congress should strike the proper balance in its regulatory reform 
efforts by establishing energy market oversight rules that allow for 
prudent use of OTC risk management products while also providing 
regulators with the tools needed to protect consumers against market 
manipulation and systemic risk.
    With its competitive power company, renewable energy provider, and 
vertically integrated utility, FPL Group looks at the impact of 
financial reform legislation from the perspective of our customers, who 
are wholesale and retail electric consumers. We certainly support the 
goal of financial regulatory reform, but the ability of electric and 
natural gas companies to use OTC energy derivatives for legitimate 
business purposes should be preserved. In addition, the CFTC should not 
have the authority to regulate wholesale electricity markets and 
transactions that are already subject to a FERC-approved tariff. This 
would result in costly, duplicative and overlapping regulation over our 
sector. The balance of my testimony focuses on that problem.
    I will briefly describe and explain: (i) why utilities and 
electricity generators use FTRs and OTC derivatives products; (ii) the 
cost to consumers of unnecessary overregulation of these OTC 
derivatives transactions; and (iii) why FERC has and should retain 
exclusive jurisdiction over wholesale electricity markets.
    To understand the role of FTRs and OTC derivatives in wholesale 
electricity markets, I will begin with a short explanation of how those 
markets are currently structured and regulated. Most of NextEra Energy 
Resource's generation assets operate within RTOs or ISOs. In fact, over 
65% of Americans, or 134 million customers, live in regions served by 
RTOs and ISOs. These organizations administer formal, ``organized'' 
wholesale electricity markets; these markets are subject to detailed 
rules and oversight by FERC. Utilities are required to file tariffs to 
comply with FERC's requirements. These organizations also operate the 
electric grid in their areas and independently administer transmission 
assets to ensure access to transmission on a nondiscriminatory basis. 
RTOs and ISOs also have independent market monitors who certify that 
these markets are operated fairly and without unmitigated market power. 
All RTOs and ISOs and the transactions that occur in them currently are 
regulated exclusively by FERC (except: ;RCOT, which is regulated by the 
Public Utility Commission of Texas).
    When RTOs and ISOs were first organized, the utility members 
retained their rights to move electricity from their generators to 
their customers by using physical transmission ``paths.'' Administering 
a physically-based system of transmission rights proved to be both 
cumbersome and inflexible over time. And it was not very good at 
managing congestion. The problem with these physically-based systems is 
that the demand for electricity varies by a factor of two every day, 
and so the economic pattern of transmission flows varies from hour-to-
hour and day-to-day. A fixed set of physical transmission rights does 
not fit this reality.
    As RTOs and ISOs evolved, and their markets became more efficient--
which means less expensive for consumers--the system of physical 
transmission rights evolved to a system of financial transmission 
rights or FTRs. FTRs are also an integral part of markets that are 
based on locational marginal pricing with security constrained economic 
dispatch (also known as LMP pricing), which I will discuss briefly 
below. All RTOs and ISOs have adopted, or are moving to adopt, a form 
of LMP, though some of the details vary from region to region. LMP has 
proven to be the most efficient way within an RTO to take maximum 
advantage Of the physical capability of the transmission system while 
maintaining reliability. LMP provides the mechanism to dispatch 
generation according to which generators are the least expensive to run 
at the time they are needed to serve the load.
    FTRs are integral to the proper functioning of competitive electric 
markets. FTRs allow electric market participants to manage their 
electricity and transmission price risk when delivering power on the 
grid.
    However, in order to better understand FTRs, one must understand 
LMP. In RTO/ISO electricity markets, generators receive the 
``locational'' price for the electricity they put on the grid at what 
is known as the ``point of injection.'' The utilities, known as local 
distribution companies (or LDCs), pay the locational price at the point 
where they withdraw power from the grid. Differences in these two 
locational prices typically arise as a result of congestion on the 
transmission system. Congestion is like a kink in a hose. The 
transmission system is too clogged to allow lower cost generation on 
one side of the kink to flow to the other side. That means a higher 
cost generator runs even though a lower cost generator is available 
elsewhere on the transmission system--that is behind the kink. 
Consequently, where there is a difference between these two prices, the 
generator or LDC will be subject to congestion fees that are paid to 
the RTO/ISO.
    In order to give market participants the ability to manage the 
differences in the locational prices, RTOs and ISOs sell, or auction, 
FTRs on a long-term, year-ahead and short-term basis. Ownership of an 
FTR thereby allows the entity to recoup some of the congestion fees. 
But these FTR markets are already heavily regulated by the FERC:

   RTOs sell a quantity of FTRs that corresponds to the 
        capacity of the transmission system--neither more nor less. So 
        the ``supply'' of FTRs is based on the physical characteristics 
        of the transmission system and regulated consistent with that;
   The auctions are designed to sell FTRs in combinations that 
        are most highly valued by market participants--and the auctions 
        themselves are governed by tariff rules established by FERC;
   Auction proceeds go to transmission owners and LDCs;
   Ownership of an FTR does not allow a market participant to 
        change the value of that FTR; vrR transactions are fully 
        transparent--the ownership of each FTR is available for all to 
        see on RTO/ISO web sites;
   Settlement or payouts of FTRs are based on bidding by 
        generators and load-serving entities for power sales and 
        purchases, consistent with anticipated power production and 
        consumption by market participants and reflecting congestion on 
        the transmission system; and
   FTR markets are subject to FERC's anti-manipulation rule.

    The auctions have detailed rules about how FTRs can be purchased. 
As a general rule, the FTRs auctioned by the RTOs are those that have 
not already been claimed by the LDCs, who have preferential access to 
FTRs. In addition, FTR holders are subject to credit requirements. The 
RTOs and ISOs administer the FTR markets, subject to FERC's extensive 
oversight. There is no regulatory gap and there is no basis to 
introduce duplicative regulation of this market.
    Generators and LDCs buy FTRs to manage, or hedge, the amount they 
will have to pay for congestion. Without the ability to hedge this 
risk, costs would go up, and customers would be subject to the 
volatility that results from the all-too-regular occurrence of 
transmission congestion. Some have criticized the fact that non-utility 
players are involved in the market for FTRs. But it is essential to 
have a variety of players and the liquidity they bring to the market. 
The market monitors also review all of the above.
    Another way that generation companies manage risk is by entering 
into transactions to sell some of the electricity that they will 
generate in advance. They do those transactions with credit-worthy 
counterparties. For example, a generator might sell an amount of 
electricity for one agreed price for all hours in the summer months of 
June through September. The generator will then know that it will 
always get that price for that amount of electricity during those four 
months. The generator foregoes the prospect of getting higher prices 
absent the sale but, more importantly, it avoids the risk that prices 
will fall below the fixed price it is paid by the buyer of the 
electricity. A generator also can do the same thing with respect to the 
fuel it buys to run the plants. The generator might transact in the OTC 
market for natural gas or lock in fuel costs for its gas power plants.
    Risk management is also important to clean energy companies. 
NextEra Energy Resources is the leading wind energy company in the 
United States. While most of the output from our wind projects is sold 
under power purchase agreements, we do operate some merchant wind 
projects that sell into the market on a daily basis. Many other wind 
energy companies in the U.S. rely heavily on merchant sales. Wind 
energy companies hedge the power output of merchant wind projects to 
provide necessary certainty to support project financings and corporate 
earnings projections. As an example, a company can sell the physical 
output from its wind projects into the daily market and receive the 
daily market floating price for power. To hedge the risk of price 
volatility in the daily markets, the company could enter into a ``fixed 
for floating power swap''. A typical power swap transaction would 
involve the wind energy company receiving a fixed price for power from 
a counterparty (typically a bank) and paying the daily market floating 
price for power to that counterparty.
    Another way to manage risk is through put options that provide 
downside price protection for merchant wind project financings. A put 
option provides a company with the right to sell power to a 
counterparty (typically a bank) at a strike price and in return the 
company pays the bank an upfront premium for this option. As an 
example, assume the current power market was $50/MWh, but a power price 
of only $40/MWh was required to provide sufficient cash flows to 
support the debt payments in a project financing. The company could 
enter into a power put option; pay a counterparty an upfront premium 
for the right to sell power to them with a strike price of $40/MWh. If 
the price of power dropped below $40/MWh, the company would have the 
right to sell power to the counterparty for $40/MWh to protect project 
cash flows. If the price of power went up to $60/MWh, the company would 
continue to sell power into the daily market and would not exercise the 
put option.
    The growth of clean energy could result in new products to manage 
risk, such as a weather derivative for wind resources. The concept 
would be for a counterparty to take on the variability of the wind 
resource as measured against a long-term historical wind index. The 
wind energy company would receive a payment from the counterparty if 
the wind resource came in lower than the historical average wind index 
and pay the counterparty if the wind resource came in higher than the 
historical average wind index.
    It would be difficult to support a merchant wind business without 
having OTC derivatives available to hedge market price risk. Banks 
would be unwilling to lend money without the ability for projects to 
lock in prices and provide certainty on project cash flows. These types 
of nonstandard, or customized, products are important to the wind 
business.
    Our customers benefit from this hedging and trading activity. We 
are in a position to agree to longer-term power sales contracts with 
wholesale customers; the price terms under those contracts are in large 
part possible because of the relative price stability that hedging 
provides to our portfolio. It is our experience that retail customers 
in particular want prices for power sales to be stable rather than 
subject to the fluctuations and uncertainties of the spot market. 
Without hedging and trading, we simply would not be able to do that.
    These types of hedging transactions are not always done on an 
exchange because we tailor the product we sell to the needs of the 
purchaser; in other words, these are not necessarily standardized 
products. Even certain products that could be considered standardized 
are often contracted for under specific, customized delivery, credit or 
capital terms.
    In RTO/ISO markets, electric utilities that have divested their 
power plants must buy power to serve their customers. In the Northeast 
and Mid-Atlantic states, utilities periodically enter the market to 
purchase full requirements service to meet their load obligations. 
These transactions are highly customized. The products sold include 
energy in quantities that match the utilities' load in each hour of the 
day delivered to the utilities' service territory. The utility also 
passes system balancing costs and transmission costs to the seller as 
part of the transaction. These transactions are highly customized and 
cannot be executed on an exchange. Energy companies that make these 
customized sales often hedge their positions with standardized 
products.
    Some would argue that advance sales of power, where the price is 
based upon an average of other sales or an index, are futures 
transactions and would subject them to the CFTC's exclusive 
jurisdiction. We disagree. These are wholesale and retail power sales 
already regulated by FERC and state utility commissions, respectively, 
and should not be regulated by the CFTC.
    NextEra Energy Resources would not be able to offer customized 
products greatly valued by customers if it could not hedge its future 
price risk. Requiring NextEra Energy Resources to conduct all of its 
transactions on exchanges, with standard rather than customized 
contracts to meet its customers' needs, and subjecting those 
transactions to costly central clearing requirements, would undoubtedly 
result in significant price increases for its customers. These examples 
illustrate why we support an end-user exemption for both wholesale and 
retail market participants.
    In addition to concerns about FTRs and other hedging activities, I 
want to mention a concern that the RTOs and ISOs themselves could 
arguably become subject to the CFTC's jurisdiction as ``derivatives 
clearing organizations'' under some versions of the financial reform 
legislation. RTOs and ISOs routinely settle hundreds of millions of 
dollars of financial transactions entered into by their markets' 
participants. If any of those transactions are classified as 
derivatives transactions, the RTOs and ISOs could be classified as 
derivatives clearing organizations to the extent that they provide 
``clearing'' services for the transactions. That, in turn, could mean 
that these organizations themselves would be subject to the CFTC's 
jurisdiction, in addition to the FERC's jurisdiction. This would add 
untold complexity and expense, and drive up the costs of these 
organizations, which would be passed on to electricity consumers.
    The Senate Banking and Agriculture Committees are considering 
financial reform legislation that may subject all of the types of 
transactions I have described above to the CFTC's jurisdiction. Some 
versions of the proposed legislation would require transactions that 
are now done ``over the counter'' to be cleared and/or traded on CFTC-
regulated exchanges. The requirement to clear and/or trade such 
transactions on an exchange would materially increase both wholesale 
and retail electricity prices. Transactions conducted on an exchange 
are subject to substantial margin requirements, while transactions that 
are not conducted on an exchange do not have the same margin 
requirements. The consequences of the margin requirement are 
significant.
    Today, credit-worthy companies like NextEra Energy Resources and 
Florida Power & Light routinely engage in OTC derivative transactions 
with other creditworthy counterparties. These transactions are often 
not subject to a margin requirement due to the creditworthy nature of 
the parties. Rather we typically rely on each other's balance sheets, 
or the value of other assets, as security for the trade. However, 
margin is typically required only when exposure has reached a mutually 
agreed upon limit. Exposures above such limit are then subject to 
margining requirements. Thus parties to off-exchange transactions pay 
less overhead, which benefits our customers.
    Analysis by members of the large end-user energy group previously 
mentioned has found that the increased costs of forced trading on 
exchanges would be hundreds of millions of dollars for the average 
utility or generation company. The margin requirement would tie up 
large amounts of cash, creating ``dead'' capital at a time when the 
power sector faces the need to invest hundreds of billions of dollars 
in clean energy technologies, energy efficiency, the smart grid, and 
additional transmission capacity.
    It is critical that these companies continue to have access to the 
OTC market for these hedges. Requiring suppliers to hedge on an 
exchange would expose them to significant liquidity risk for cash 
margining. The cost of this risk would ultimately be borne by the 
utilities' customers via higher prices charged for the full 
requirements service. For example, in February utilities in New Jersey 
purchased approximately 2,500 MW for a three-year term. If this entire 
volume were hedged on an exchange, suppliers would have had to post 
about $1 billion in cash to cover initial margin and variation margin. 
This $1 billion would have been added to bids accepted for the auction 
and ultimately would have been borne by consumers in New Jersey. There 
are a number of other states that conduct similar auctions. They would 
face a similar cost premium to reflect the additional working capital 
costs that suppliers would have to bear if the OTC markets are not 
available for the hedging needed to provide these types of products. 
Competition would also decline as the liquidity risk would simply be 
unacceptable to many suppliers. It is a basic tenet of markets that 
fewer participants would result in higher prices to customers.
    Therefore, if financial reform legislation requiring clearing for 
these transactions were enacted, consumers would see their prices 
increase because an additional and unnecessary layer of cost would be 
added to the marketplace--without a commensurate reduction in risk.
    Initial reform proposals have included a number of vague or 
ambiguous terms that will need to be clarified prior to passage of a 
final measure. The aim of all of the financial reform proposals has 
always been to focus on the large financial players whose transactions 
can pose systemic risk. Without a specific exemption, it will not be 
clear whether electricity end-users are also intended to be covered and 
subject to the various new requirements. Something this important and 
costly needs to be clear and should unambiguously exempt end-users 
managing commercial risk from the clearing and exchange-trading 
requirements. Unless the terms of the legislation are precise, 
determining which parties and transactions are subject to a clearing 
requirement will be left to the broad discretion of the CFTC. CFTC 
Chairman Gensler and his staff have stated on numerous occasions the 
position that virtually all OTC transactions, including FTRs, should be 
cleared or traded on exchanges; we respectfully disagree.
    As a result, we believe that the legislation should clarify that 
FERC is the sole regulatory authority governing electricity products 
and services provided under a FERC-approved tariff and subject to 
regulatory oversight by the FERC, with the same true for the Public 
Utility Commission of Texas for ERGOT.
    It is important for Congress to make clear that FERC retains 
exclusive authority under the Federal Power Act over all wholesale 
electric markets and transactions subject to a FERC tariff. As 
indicated in the discussion of FTRs, financially settled transactions 
are an integral component of RTO/ISO markets. Consistent with the 
purposes of the Federal Power Act, they ensure the efficient and 
reliable physical generation, transmission and wholesale delivery of 
electricity at just and reasonable rates. In addition to the Federal 
Power Act authority, FERC has a duty under the Energy Policy Act of 
2005 to ensure these markets are not subject to manipulation or abuse.
    Wholesale electricity markets are already pervasively regulated by 
FERC, and the introduction of CFTC regulation either creates 
duplicative regulation or transfers FERC jurisdiction to the CFTC. It 
does not fill a regulatory gap, since there is no gap in this area. If 
there are two regulators, the rules will inevitably be different 
depending upon which agency imposes them. Gamesmanship, abuse and 
market manipulation all thrive under this kind of overlapping and 
confusing regulation. In my view, bifurcated jurisdiction of these 
markets will invite market manipulation. Clear and unambiguous 
authority for FERC to regulate these transactions is essential. There 
is already litigation over which agency has authority to police 
manipulation by futures market participants that affects FERC 
jurisdictional markets. We cannot afford further confusion over 
regulatory jurisdiction.
    Some have suggested that the problems created by duplicative 
oversight over these markets by both FERC and the CFTC could be worked 
out by directing the two agencies to enter into a Memorandum of 
Understanding delineating who will do what. I believe that approach 
will be ineffective. As I indicated earlier, the Commodity Exchange Act 
confers upon the CFTC ``exclusive'' jurisdiction over certain aspects 
of futures transactions, namely futures trading on exchanges Other CFTC 
authority is non-exclusive. FERC and CFTC disagree on their respective 
authority under current law, reflected in litigation over FERC's 
efforts to police alleged market manipulation by futures participants 
that affected FERC-jurisdictional markets. This is an honest 
disagreement, but one that is fundamental and has persisted for years. 
There is no reason to believe this disagreement will disappear, 
especially if Congress enacts legislation that grants CFTC additional 
discretionary authority in any legislation with significant ambiguity 
and replete with undefined terms. The House bill appears to leave it up 
to CFTC to determine where FERC jurisdiction ends. The plain fact of 
the matter is that FERC and CFTC disagree on their respective legal 
authority under current law. The enactment of legislation such as the 
House bill would only sharpen that disagreement. To the extent there is 
disagreement between two federal agencies on how to interpret their 
legal authority, that disagreement can only be resolved by the courts 
or Congress, not by a Memorandum of Understanding between agencies with 
a good-faith disagreement. That is why a simple memorandum of 
understanding between FERC and the CFTC would be fundamentally 
inequitable and unworkable. Any such deliberation would seem to 
inevitably result in the CFTC's assertion of exclusive jurisdiction 
over matters which have historically been the legitimate purview of 
FERC.
    To address the concerns I have outlined, we respectfully request 
the members of the Committee to support legislation that: (1) clarifies 
FERC's plenary and exclusive jurisdiction over products and services 
provided under a FERC-approved tariff and subject to regulatory 
oversight by the FERC (except for ERGOT, which the legislation should 
recognize is subject to the Public Utility Commission of Texas's 
jurisdiction), and (2) confirms that RTOs and ISOs, and ERCOT, would 
not be subject to CFTC regulation as if they were NYMEX-like futures 
exchanges or derivatives clearing organizations. We would welcome the 
opportunity to work with the Committee to develop legislation to 
address our concerns.
    As you have heard from New York Public Service Commission Chairman 
Garry Brown, the National Association of Regulatory Utility 
Commissioners (NARUC) shares our industry's position on these critical 
issues. At its meeting in February, NARUC expressed its strong support 
for exclusive FERC jurisdiction over any agreement, contract, 
transaction, product, market mechanism or service offered or provided 
pursuant to a tariff or rate schedule filed and accepted by the FERC, 
or the Public Utility Commission of Texas for Texas/ERCOT.\3\
---------------------------------------------------------------------------
    \3\ CS-1 Resolution on Financial Reform Legislation Affecting Over-
the-Counter Risk Management Products and Its Impacts on Consumers, 
adopted by the NARUC Board of Directors, February 17, 2010 (attached).
---------------------------------------------------------------------------
    We believe that Congress should recognize and preserve FERC's 
exclusive jurisdiction. Electric and gas utilities, electricity 
generators, and renewable energy providers utilize FTRs and OTC 
derivatives to manage risk with the ultimate aim of helping to ensure 
stable and affordable rates for our customers. We do this by using 
derivatives transactions to hedge against price volatility in natural 
gas and wholesale electric power--two of the most volatile 
commodities--that already are substantially regulated. Adding CFTC 
regulation and costly new requirements to this mix will not resolve the 
issues that Congress wants to address in the wake of the financial 
crisis, but will serve only to increase energy costs that will 
ultimately be passed on to our customers. CFTC regulation should be 
left to areas where their expertise carries benefits, such as by 
focusing on the transactions and market participants that could yield a 
systemic risk that would jeopardize our economy or financial system.
    I appreciate the Committee's invitation to testify today and your 
willingness to examine these issues. I hope that I have provided you 
with a sense of the impact of duplicative regulation of energy 
transactions and how it would result in higher costs for companies like 
FPL Group, which in turn would result in higher costs for our 
customers. I would be pleased to answer any questions you may have.

    The Chairman. Thank you very much.
    Mr. Henderson, go right ahead.

   STATEMENT OF MICHAEL W. HENDERSON, VICE PRESIDENT & CHIEF 
 FINANCIAL OFFICER, ARKANSAS ELECTRIC COOPERATIVE CORPORATION, 
     ARKANSAS ELECTRIC COOPERATIVES, INC., LITTLE ROCK, AR

    Mr. Henderson. Thank you, Mr. Chairman, Ranking Member to 
this committee. I would like to thank you for the opportunity 
appear this morning. I also would like to take this opportunity 
to thank our home State Senator, Senator Lincoln, as well as 
the chairman and ranking member and other members of the 
committee that is working together to come up with a global fix 
for this issue.
    I have submitted my written testimony on behalf of the 17 
rural electric cooperatives of the State of Arkansas who 
represent 470,000 consumers in rural Arkansas, as well as 
another 30,000 outside the State of Arkansas that are served by 
the 17 cooperatives, as well as 42 million additional rural 
electrification consumers.
    For us, this issue is all about cost. Our mission is to 
keep costs as low as possible. That is one of the keys for 
rural America to be able to provide a little economic 
prosperity for that region. So that is our sole purpose for 
being here today is to try to keep costs as low as possible.
    Speaking of costs, the issues of FTRs and CRRs--those 
really originated as a way to balance cost for providing 
transmission service. So we have used those as an integral part 
of the cost of service of transmission. So we think that should 
remain in the area of FERC that is charged with determining 
just and reasonable rates.
    We also think that if you take the regulatory authority of 
those and put them into CFTC, that will fractionalize that 
ratemaking ability. So it makes it tougher for one entity to 
have control over determining a cost for all, and again for us, 
it is providing the lowest cost possible.
    We do think there are some negative aspects of having 2 
regulatory authorities. As others have alluded to, there is 
additional liquidity facilities that could be required. That 
would be very costly to us.
    The arena that we conduct business in under FERC, we know 
most of the parties. The kind of parties we are doing business 
with are like-kind entities. When you pull that market out and 
interject additional financial entities, other commercial 
entities, those are counter-parties we do not necessarily know. 
Default risk goes up for us. So that is an additional cost 
exposure that we would face.
    We think there are some positives to 2 regulatory 
authorities, though. You know, 2 sets of eyes are always better 
than one. We think greater transparency that others had 
mentioned is a positive attribute. We think greater protection 
against market manipulation by having that extra set of 
authority provides benefit. We do see a role for CFTC acting 
more as a judiciary auditor type function, as kind of an 
overseer but not really a policymaker or a regulatory provider.
    So, in short, what we offer up or request is that status 
quo relief for the FERC regulation remain in place, that we are 
open and accept the idea of a bright line, you know, making a 
more clear definition of the different roles.
    That is the comments I have today. So I would take any 
questions anyone has.
    [The prepared statement of Mr. Henderson follows:]
  Prepared Statement of Michael W. Henderson, Vice President & Chief 
Financial Officer, Arkansas Electric Cooperative Corporation, Arkansas 
              Electric Cooperatives, Inc., Little Rock, AR
    Mr. Chairman and committee members, it is an honor to appear before 
this committee. Thank you for this opportunity to share the views of 
the electric cooperatives of Arkansas pertaining to regulation of 
financial transmission rights (``FTR''), congestion revenue rights 
(``CRR'') and other related components of providing electric 
transmission services to our consumer-owners, I would also like to 
thank our home state senator, Senator Blanche Lincoln, who since 
becoming Chairman of the Agriculture Committee has taken an intense 
interest in this issue, and we appreciate her efforts to craft a common 
sense global fix to this issue.
    Seventeen Arkansas electric cooperatives provide electric power to 
approximately 468,900 consumer-owners in Arkansas, and another 29,229 
in adjoining states. Electric cooperatives provide service to 62 
percent of the land area, and 74 of the 75 counties in Arkansas. The 
electric cooperatives in Arkansas provide service on a not-for-profit 
basis to some of the poorest service territories in the nation. Nation 
wide, electric cooperatives provide electric power services to 
approximately 42 million consumer-owners in 47 states.
    Arkansas Electric Cooperative Corporation (``AECC'') is a 
generation and transmission cooperative that provides power supply and 
transmission delivery service to the 17 distribution cooperatives in 
Arkansas. AECC provides transmission service to its native load within 
three separate transmission control areas: Entergy, American Electric 
Power (``AEP'') and the Southwestern Power Administration (``SWPA''), 
an agency of the Department of Energy. AEP and SWPA operate within the 
Southwest Power Pool (``SPP''), a regional transmission organization 
(``RTO'') under the regulation of the Federal Energy Regulatory 
Commission (``FERC''). AECC strategically determined it was in its 
member's best interest to share in the utilization of the transmission 
systems of Entergy, AEP and SWPA to prevent duplicating infrastructure. 
Therefore, AECC is a transmission dependent utility relying on fair and 
equitable access to the transmission grid through the SPP RTO.
    Cost pressures on transmission delivery services are constantly 
increasing. The physical cost of AECC providing transmission service to 
rural Arkansans increased 60.8 percent from 2004 to 2009. That is a 
compounded annual increase of 9.97% per year. Managing transmission 
costs is vital to meeting our goal of providing reliable electric 
service at the lowest possible cost, and helping to improve the quality 
of life for rural Arkansans.
    The intention of many of the derivatives regulation reform 
proposals being proposed in Congress, including the financial reform 
bill that passed the U.S. House of Representatives (H.R. 4173), to 
protect market participants is certainly laudable. In fact, we believe 
the CFTC should continue to look for market manipulation in the 
bilateral OTC natural gas and power markets. These investigations occur 
after transactions have been made and should not impede the smooth 
running of FTRs and CRRs. However, we feel that derivatives regulation 
proposals should respect the fact that the inclusion of RTO FTRs and 
CRRs, which are more closely attached with the physical service 
reliability requirements of providing electricity, is not appropriate 
as they do not fit the characteristics of other commodities for which 
legislative proposals would regulate. We are concerned that proposed 
legislation could inadvertently make it difficult and more expensive 
for AECC to deliver power in an RTO market.
    Most RTOs operate both a real-time and day-ahead market for 
electric power. These markets establish locational marginal prices 
(``LMPs'') for energy based on the bid price of the last unit 
dispatched to meet load in the RTO region. The level of congestion in 
different parts of the transmission system can change hourly; 
therefore, the cost of power generated and consumed in different parts 
of the system can vary greatly and is extremely volatile. That 
volatility is challenging for utilities because the LMPs not only 
establish the cost of power for utilities buying energy out of the 
market or selling energy into the market at any particular location, 
the LMPs also establish the cost for utilities that generate with their 
own power resources to deliver that power to their consumers. Utilities 
are paid the LMP price for energy they generate at one point of the 
system, and simultaneously pay the LMP price for energy at the point 
where it is withdrawn to serve their consumers. Thus any difference in 
the LMP between the ``source'' of the power, and the ``load sink'', 
change the cost of delivered power due to congestion incurred for 
delivering through the RTO-managed transmission system. Congestion 
costs for a utility are determined by a positive difference between the 
cost paid to serve their load at a location minus the revenue received 
for power generated at a different location.
    In order to help utilities hedge congestion cost risk, the FERC 
requires RTOs that operate real-time and day-ahead LMP markets, to make 
FTRs or CRRs available to market participants. By virtue of payments 
for physically firm network transmission service, load serving entities 
like AECC are annually allocated certain financial revenue rights by 
the RTO in order obtain FTRs or CRRs. FTRs and CRRs are monthly, annual 
or other periodic financial instruments that entitle holders to 
congestion revenues along a particular transmission path. These FTR and 
CRR revenues help offset the costs incurred by utilities to deliver 
energy over the congested transmission paths. As load profiles change 
and sources of supply change over time, these unbundled financial 
instruments can be bought and sold to align a market participant's 
congestion protection with the ever changing congestion exposure that 
results from the need to use frequently changing transmission paths. 
Consequently, FTRs and CRRs were created to help market participants 
maintain balance over time between the financial costs of providing 
transmission service with the requirements of providing physically 
reliable transmission service in a constrained and congested 
transmission system.
    As previously discussed, AECC participates in the SPP RTO. The SPP 
is currently evaluating and designing how it will develop the FTR or 
CRR market for its area of responsibility. Other RTOs such as the RIM 
and Midwest Independent System Operator (MISO) already operate 
congestion rights markets. Even though the FTRs and CRRs have been 
separated from the physical cost of delivery, they remain an integral 
part of the overall cost of service.
    The electric cooperatives of Arkansas and cooperatives across the 
country are concerned that proposed legislation would place regulation 
of FTRs and CRRs under the regulatory oversight of the Commodities 
Futures Trading Commission (CFTC). Oversight by the CFTC would fragment 
load serving entities' ability to manage their transmission costs. The 
FERC comprehensively regulates all jurisdictional wholesale sales and 
jurisdictional interstate transmission service, pursuant to the Federal 
Power Act, as an integral part of the overall electric market 
structure. Sections 205 and 206 of the Federal Power Act give FERC 
authority to ensure that the rates, terms and conditions of all 
jurisdictional wholesale sales of power and all jurisdictional 
transmission service in interstate commerce are just and reasonable. In 
order to fulfill that duty, FERC has required RTOs to file tariffs at 
FERC governing every aspect of their markets. The design, operation and 
governance of RTOs financial rights, and the obligations of parties who 
participate in the markets, and the means which the RTOs monitor the 
markets for market power and market manipulation, are all filed at 
FERC, and bought and sold pursuant to FERC filed tariffs. Mismanagement 
of the markets by the RTOs and misconduct in those markets by 
participants are both subject to penalties from FERC. An exception to 
this FERC regulation is in Texas. In the State of Texas a single grid 
operator called the Energy Reliability Council of Texas (ERCOT) 
operates a day ahead and real time market and administers CRR's to 
hedge congestions. The ERCOT is overseen by the Public Utility 
Commission of Texas (PUCT) who serves the single regulator for 
commercial power and transmission markets in Texas.
    AECC believes keeping all components of transmission costs 
regulated by a single entity will ensure lower overall cost for its 
members. If the FTR and CRR markets are allowed to be regulated by an 
entity outside of the FERC (or PUCT in Texas), market participants 
could be forced to maintain multiple backup credit facilities (credit 
facility for FERC physical transactions and credit facilities for FTR/
CRR market). A weakened economy and constrained capital resources at 
financial institutions are already resulting in higher cost credit 
support facilities. Another factor to consider is that market 
participants in a FERC regulated market are mostly entities of the 
utility sector serving end-use load. The credit risk for utility market 
participants is generally less than a market that has a higher 
concentration of counterparties that trade speculatively. One way to 
eliminate and avoid counterparty risk is to force participants to 
provide cash collateral sufficient to cover the full exposure of all 
trades executed. But this option increases cost to end-use utility 
consumers and idles large amounts of cash making it more difficult for 
utilities to maintain capital expenditures on infrastructure to provide 
reliable electric service.
    In conclusion, on behalf of 468,900 electric cooperative consumers 
in Arkansas and approximately 42 million electric cooperative consumers 
throughout the nation, the electric cooperatives believe it is in the 
best interest of utility consumers to ensure regulation of FTRs and 
CRRs remain under the regulatory authority of the FERC and the PUCT in 
Texas. RTO markets and RTO-created products are integral to the RTOs 
regulatory reliability mission. FERC and the PUCT should also maintain 
jurisdiction over physical forward transactions, whether or not those 
transactions ultimately result in physical forward delivery or are 
booked out. There are other energy hedging products that are available 
for use by the general public. These are appropriately regulated by the 
CFTC but the FTR and CRR markets should remain under the oversight of 
the FERC or PUCT in Texas. In my opinion, the global fix prescribed by 
Senator Lincoln could help keep the cost of providing electricity to 
Arkansas consumers as well as electric consumers across the nation 
lower.
    Mr. Chairman, thank you for the opportunity to share our concerns 
with you and the Committee on Energy and Natural Resources.

    The Chairman. Thank you very much.
    Why do we not find a couple of other chairs and ask 
Chairman Wellinghoff and Chairman Gensler to please come to the 
table. The rest of you stay at the witness table too, and we 
will do some questions here as long as we are able to. I think 
we can get all 6 folks there. Good.
    I will start with a question to Chairman Wellinghoff and 
just ask, reference has been made to this provision in H.R. 
4173 that directs FERC and the CFTC to develop a memorandum of 
understanding to establish procedures, to share information, 
and avoid conflicting and duplicative regulation by the 2 
agencies. To what extent do you think this helps? This is a 
resolution of the concern and Congress should basically allow 
that provision to solve the problem.
    Mr. Wellinghoff. Mr. Chairman, I basically agree with 
Chairman Kelliher that Congress does need to solve the problem 
with respect to jurisdiction.
    I think certainly we can enter into a memorandum of 
understanding with the CFTC and would like to do so regarding 
our respective investigatory powers and the ability to get 
information from markets that we each regulate so that we can 
establish and preserve our regulatory authority to ensure that 
there is no fraud and manipulation in the markets. The CFTC 
certainly may need information from some of the markets that we 
oversee and vice versa, and I think that kind of sharing and 
cooperation is necessary, but I do not see personally a 
memorandum of understanding with respect to the issue of 
jurisdiction. I really think that is something that Congress 
needs to do with a bright line.
    Mr. Gensler. If I might.
    The Chairman. Yes, go ahead.
    Mr. Gensler. What the House of Representatives included in 
the various agreement between Chairman Waxman and Chairman 
Peterson that worked through that actually went well beyond a 
memorandum of understanding, and I would be supportive of going 
beyond that. It had a very explicit savings clause for the good 
work that this committee and Congress did in that anti-
manipulation area, the EPAct rules of 2005. It had other 
various savings clauses for FERC jurisdiction with regard to 
regulation of electricity and natural gas under their tariffs. 
It had some savings clauses, of course, for the CFTC as well.
    Then it actually directed that we use our 4(c) exemptive 
authority. Under the 1992 provisions, we can, without 
determining whether something is a future or not, actually 
exempt various activities.
    So I think it was actually far more than what Chairman 
Kelliher was talking about. There was a lot more, and working 
with this committee, I think we can sort this through and 
working with this relationship, I think we can.
    The Chairman. It does seem unusual, though, for Congress to 
say that you can decide what is exempt rather than Congress 
deciding what is exempt. Am I confused about that?
    Mr. Gensler. I think what it is we as an agency are 
overseeing markets to ensure they are fair and orderly, these 
derivative marketplaces. The FERC has very important 
jurisdiction and mission as well. So we coexist, as we coexist 
with the Department of Agriculture, we coexist with the 
Department of the Treasury. Treasury issues physical Treasury 
securities. We oversee futures of Treasuries. We currently 
oversee natural gas and electricity futures that trade on 
NYMEX. I do not think this committee wants to take that away 
from the CFTC, but if you want to give it to FERC, you know, 
the Congress can do that. So it is a coexisting between 
missions going forward.
    The Chairman. Let me ask on this specific that Joseph 
Kelliher talked about there, the auction that occurred, the PJM 
auction I gather, in New Jersey last month. What is your 
thinking about the role the CFTC would play on that kind of a--
--
    Mr. Gensler. I am glad you asked it. I understand the facts 
on that, probably none. I think it is a red herring, with all 
respect to Chairman Kelliher. I think it is probably a cash 
transaction that is excluded under the Commodity Exchange Act. 
We do not cover cash or physical spot or forward contracts.
    If Congress were to move forward and actually suggest that 
we cover broad, over-the-counter derivatives, it would only be 
the standard transactions that would be recommended to be 
brought to central clearing, and I think the transaction he was 
describing, if it were an over-the-counter derivative, would 
actually be customized or tailored.
    We do think there are 2 debates here, as many of the 
panelists said. There is a debate of a little jurisdictional 
thing here between the FERC and the CFTC, which I think we can 
sort through with the good help of the committee. There is this 
end-user question, which I have taken a public policy 
perspective. I think we lower risk to the American public by 
having all of these transactions that are standard in 
clearinghouses, but if you exempt the energy transactions, I 
would just ask Congress not to exempt all the financial 
transactions.
    The Chairman. But the idea of having an energy end-user 
exemption, which has been suggested by several, is something 
that you think might make sense?
    Mr. Gensler. No. I am actually very much publicly on the 
record saying that I think that if it is a standard 
transaction, it would be best to be brought into central 
clearing and central trading. I understand the votes probably 
are not there for that, sir. So if there is an exemption for 
central clearing for end-users in the energy market, I think 
that should not sweep an end-user for trading. Transparency is 
unarguably a good thing. You could have them required to be 
transparent and still allow them to be bilateral and not be 
centrally cleared.
    The Chairman. Let me ask Chairman Kelliher if he had any 
comment on that.
    Mr. Kelliher. I do not think the example in the testimony 
was a red herring. I think it did involve standard products 
that would be forced to clear on the exchange, but I can submit 
more information for the record of the hearing.
    The Chairman. I think that is a useful example for us to 
try to understand how these different policies would be 
affected there.
    Senator Murkowski.
    Senator Murkowski. Thank you, Mr. Chairman.
    I am trying to determine whether or not we really do have a 
regulatory gap. Mr. Kelliher, you mentioned that you do not 
believe that one exists. You said there is no loophole to 
close. There is no regulatory gap to plug. I would ask the 
question both to you, Chairman Wellinghoff and Chairman 
Gensler, do we have a regulatory gap here or is Mr. Kelliher 
correct in that the FTRs are already regulated by FERC through 
its review and its approval of the RTO tariffs.
    Mr. Wellinghoff. Ranking Member Murkowski, thank you for 
the question.
    I believe there is no regulatory gap whatsoever. We do 
fully and completely regulate the FTRs.
    To the question of the issue of what would be swept in 
under the CFTC's authority, if they take in the FTRs, as I 
understand it, that ultimately would sweep in the whole market 
because ultimately they would require the RTO market, in 
essence, to be a clearing market under their regulations. So I 
think Chairman Kelliher is correct in his New Jersey example as 
well, and again, it is one step that would move us to a place 
that I think we do not need to go.
    We do not need an exemption because, in fact, there is 
nothing to exempt. We, in fact, fully regulate this area 
already, the FTRs. So I see no loopholes at all.
    I would also add that I do not believe that creating bright 
lines creates loopholes. I cannot see that connection.
    Mr. Gensler. We probably have a little bit different 
perspective on this. I do think that bright lines in this area 
could have the unintended consequences because markets evolve 
and change, and it goes to the Senator's question about these 
financial transmission rights. We at the CFTC have not taken a 
public position as to whether they come under the Commodity 
Exchange Act. In essence, the right question is are they 
futures.
    But I think that the FERC does take the leadership here and 
should continue to take the leadership here, but we do not know 
how this contract or this market may evolve. I do not even 
think PJM might know how they might evolve.
    Congress has asked that one agency, the CFTC, have broad 
and uniform jurisdiction, exclusive jurisdiction, on derivative 
contracts. We can use the exemptive authority to stand down, to 
stand back when it is ambiguous, and sometimes it is not clear 
and FTR is an example where it has begun to be not clear, but 
where we are just giving some advice, for instance. Jon and I 
have had a good relationship about this around this risk 
management situation. I am glad to have the FERC taking the 
lead, but we do not know this ambiguity will evolve over time.
    Senator Murkowski. Let's discuss that further, Chairman 
Gensler, both Mr. Kelliher and Mr. Wellinghoff indicated that 
in their opinion the energy providers do not pose this systemic 
risk to the broader economy. As we are looking to address 
financial reform regulation, that is a different area. Would 
you agree with them that within the energy market with those 
energy providers, they do not pose that systemic risk?
    Mr. Gensler. I think that the financial system so terribly 
failed the American public, and part of that is this over-the-
counter derivatives world. So I believe that we need to be in 
greater transparency, and we can do that on the standard 
transactions. I think that is actually a positive to the 
consumers that FERC protects if we brought the standard 
transactions into transparent trading venues. I am not talking 
about the FTRs. I am talking about over-the-counter 
derivatives.
    Senator Murkowski. You do not think that the FTRs that are 
traded through the RTOs are standardized?
    Mr. Gensler. I do not know the answer to how they will 
evolve, and the commission has not taken a view as to whether 
they are futures under the Commodity Exchange Act. But I think 
that the broad market, whether it is natural gas derivative 
where somebody is just hedging a natural gas risk, could be 
standardized.
    Having said that, many are customized. Many are tailored 
and should remain tailored. Corporations--the very good 
testimony from Mr. Henderson. They need to be able to tailor 
and hedge their risk. Garry Brown's testimony. I believe they 
need to be able to tailor and hedge their risks. But we also 
want to protect the public and lower risk and add transparency.
    Senator Murkowski. Mr. Brown, you spoke to the expense to 
the consumer. Are we able to quantify what those expenses may 
be, or at this stage, is it relatively hypothetical in terms of 
what the consumer might anticipate?
    Mr. Brown. It is somewhat hypothetical in the sense that we 
are not quite sure, as this panel indicates, which products in 
the end would be covered by this. But the numbers that we hear 
on a nationwide basis is that it could require utilities to put 
up billions in additional collateral, and that is money that 
would then be taken from all the other things that utilities 
need to do, building infrastructure, promoting renewables, all 
the other things we have got the utilities doing right now.
    We used a key phrase in our testimony. We should compare 
the costs of this with the benefits. I cannot disagree with Mr. 
Gensler that there are potential benefits, but the question is, 
is it worth the potentially billions of dollars of costs? Is 
there any evidence that indicates we really need to require 
that at this point in time? I think our viewpoint there is no 
jurisdictional gap. We have got the Federal Energy Regulatory 
Commission, and we would prefer to keep our State/Federal 
arguments focused on Commissioner Wellinghoff's agency rather 
than have a jurisdictional confusion about who is overseeing 
what.
    Senator Murkowski. Thank you, Mr. Chairman.
    The Chairman. Senator Lincoln.
    Senator Lincoln. Thank you, Mr. Chairman.
    The Chairman. Who I should point out, of course, is chair 
of the committee with primary jurisdiction over the CFTC. So 
she has a vital interest in this.
    Senator Lincoln. Thank you, Mr. Chairman. I do so 
appreciate you and Senator Murkowski holding the hearing today. 
As you mentioned, we do share an interest in this very complex 
issue and certainly look forward to working with both of you 
all as we move forward in solving some of these problems and, 
as Chairman Gensler mentioned, putting our economy back on 
track and providing confidence in the marketplace as we do so.
    I do want to also take the opportunity to thank my 
constituent, Michael Henderson, for coming up from Little Rock 
today to provide his testimony. Michael is the VP and CFO of 
Arkansas Electric Cooperatives and the coops do provide a 
critical service to the people of our State. I want to thank 
you, Michael, and all of the folks at the coops in Arkansas for 
what you all do. We are grateful and we are grateful for your 
comments about looking out for our consumers, particularly 
those in rural America.
    Mr. Chairman, I am particularly interested in finding a 
path forward that does respect the missions and the expertise 
of both of these agencies, the CFTC and the FERC. I have stated 
publicly that these agencies and our committees can draft that 
compromise. I feel very confident. We may have to leave for a 
vote, but we certainly want to make sure that all of you all 
are committed to continue to sit around the table and figure 
out what that compromise needs to be and can be.
    But I also remember the words of Robert Frost which said 
``good fences make good neighbors.'' Being a farmer's daughter 
and understanding when someone's cows get into your wheat crop, 
it is not a good thing. You want to make sure that with good 
fences, you do produce good neighbors, and I think as hard as 
Chairman Gensler and Chairman Wellinghoff work together, it is 
critical for them to have a clear understanding from us in 
terms of what our intentions are, that there are no regulatory 
ambiguities, I believe is what Mr. Brown mentioned earlier. I 
think that is really important.
    I do see a compromise where FERC would get clear control of 
the regional transmission organizations. RTOs are clearly in 
their jurisdiction and the existing final products that are 
used. The CFTC would continue to exercise exclusive control of 
the New York Mercantile Exchange and the Intercontinental 
Exchange, as well as energy futures and swaps.
    Nothing would prevent one agency from notifying the other 
of concerns. You are already working together, and I think that 
is important. Concerns that you may have--hopefully, you will 
notify one another, which would help assist in enforcement. 
This is common sense, and I think it is just and equitable 
results of what we are trying look for.
    I would say, as we converse and talk about gaps, it is not 
as much gaps in regulation as it is overlap. Any of that 
ambiguity that may exist we in Congress I think have a 
responsibility to put clarity to, and I hope that we will. I 
think in these economic times, no one wants duplicative 
regulation. We want to put our economy back on track. We want 
to provide confidence to consumers and make sure that folks can 
turn their lights on and still afford it. There is no doubt 
that all of those things are our objectives.
    So I want to thank the NRECA and the EEI, the EPSA for 
their willingness to work with me certainly and others, I 
think, on a global fix. Mr. Henderson mentioned a global fix. I 
hope that is the objective we can set before us and come 
together in coming up with what we need to do there.
    I just would leave these couple of questions with you. 
Chairman Wellinghoff, you know the New York Mercantile Exchange 
is currently registered and regulated by CFTC. NYMEX was 
founded in the 1870s I think. Do you think that the FERC should 
be regulating futures contracts on NYMEX?
    Mr. Wellinghoff. No, absolutely not. We only have an 
interest to the extent that we may need information with 
respect to activities in that exchange, and we certainly have a 
cooperative agreement with the CFTC do do that and require that 
information to the extent that it may somehow impact a physical 
market and the manipulation or fraud that may be going on and 
we may be investigating that physical market. But we certainly 
have no interest in regulating it.
    Senator Lincoln. To that end, Chairman Gensler, you know 
PJM is a regional transmission organization which was created 
by and overseen by FERC. As I understand it, PJM started 
operating I think in 1999, 11 years ago. Do you think the CFTC 
should be regulating PJM, its products or its participants?
    Mr. Gensler. Chairman? Can I call her chairman? She is my 
chairman. Chairman Lincoln, there is a possibility in the 
future it would. It depends how markets evolve. I think that 
FERC take the leadership over RTOs. Most, probably 99 or 98 
percent, of the products have no implication whatsoever in the 
derivatives marketplace. But I do think that Congress, in 
giving exclusive jurisdiction to one agency to oversee 
derivatives, whether they be futures products or not, gives 
some uniformity and consistency. So I cannot predict how this 
small market might evolve or mutate in the future, and I am 
concerned about bright line tests and I have sort of got some 
scars on my own back from the Enron loophole and the 
experiences we had there.
    Senator Lincoln. But you are basically talking about what 
might be a futures in the future, or you are talking about a 
product that may evolve out of what transpires with PJM perhaps 
in terms of its products----
    Mr. Gensler. I think that is right, and to the extent that 
there is a centralized marketplace where buyers and sellers 
meet over derivatives contracts, I think Congress does want one 
agency. You know, I will go and the career staff will go, but I 
mean, to have one agency to do that and coexist with other 
agencies that oversee the physical markets, as we do with the 
Department of Agriculture that, of course, you know so well.
    Senator Lincoln. I appreciate that.
    As you both know, I have suggested this global fix or 
coming to find a global fix, a concept to resolve these 
jurisdictional disputes between FERC and CFTC. I think several 
industry groups have expressed a willingness to work together 
to come up with whatever this fix needs to be. Would your 
agencies be willing to work with us on a solution of that type?
    Mr. Gensler. We are always willing to work with all 
members, but certainly the chairman.
    [Laughter.]
    Senator Lincoln. The other gentleman is going to be at the 
table too, and I look forward to working with him and his staff 
and others. But I do believe that particularly in this day and 
age with the economic circumstances we find ourselves in, that 
the duplicative regulation is just not appropriate, and I do 
believe that we have got to be able to determine and figure out 
where that overlap exists and what problems it is causing and 
make sure that we get you 2 gentlemen----
    Mr. Gensler. I would certainly hope that we would continue 
our very good relationship and in trying to avoid some 
duplication, as you say, that we do not create the gap line, 
the fault line because it really does evolve. These markets, 
all markets evolve so much, and that is one of the hard lessons 
I have had to take from this financial crisis, that markets 
that we did not look at, credit default swaps where you had a 
blip on the radar screen or electronic trading, and then we end 
up with an Enron loophole and a swaps loophole. Certainly 
looking back now, I think what could we have done differently 
and I was part of that.
    Senator Lincoln. I do not disagree that there are very few 
Americans out there that would argue that over the past 15 to 
20 years, there has been a tremendous evolution of financial 
instruments out there, and as they have evolved--you are 
exactly right--their markets have. The only way that we have 
known what our problem has been is looking in that rear view 
mirror to see what that $400 trillion marketplace was. We do 
not want to keep looking in the rear view mirror. We want to 
look forward and we want to have, without a doubt, you all in 
the capacity that you need to be to have that transparency, the 
oversight that is necessary to ensure that as we move forward, 
that we are not dealing with the kind of issues and the kind of 
things that were happening that no one knew about. So we will 
look forward to working with you.
     Mr. Chairman, I certainly look forward to working with 
you. I have never found a more thorough or dedicated member of 
the body that does not get down to the details--the devil in 
the details as Mr. Chairman Bingaman does. So I appreciate it. 
Thank you.
    The Chairman. Thank you very much.
    Let me just ask Mr. Duane going back to this example of the 
auction that occurred. PJM had the auction last month we were 
advised. Could you describe that? Are these standardized, this 
RTO? Are these customized? What was the circumstance there?
    Mr. Duane. I would have to coordinate with former Chairman 
Kelliher to exactly understand his example, but I think his 
point is a valid point.
    PJM runs auctions in our energy markets and we run auctions 
in our FTR markets and capacity markets. These products are 
very specific. For instance, on the FTRs, there are literally 
tens of thousands of combinations that could constitute an FTR.
    We, in running those auctions, have from time to time been 
in discussions with third party clearing organizations as to 
whether they would be interested in providing the sorts of 
clearing services that Chairman Gensler might like to see in 
those markets, and not only is it cost prohibitive, but they 
are really unable to provide the services given the unique 
attributes of this product that is really not a financial 
product. It is, as we have discussed, tied to the financial 
transmission service.
    So somewhat ironically we are having a lot of discussion 
about something conceptually that even if we were to try and 
mandate the clearing of these FTR products out of these 
auctions, I am not sure it could even happen, which causes me 
concern and it causes our market participants concern that the 
product may just die and go away, exposing customers to the 
very volatile prices that are attendant to the electricity 
commodity.
    The Chairman. What I am understanding--and I may be very 
confused here, but what I am understanding the House 
legislation to provide is that the CFTC would be given 
authority to make a determination that PJM is a designated 
clearing organization, and if they did that, then presumably 
that would cause a whole new set of requirements to be put in 
place. Is that wrong, Chairman Gensler?
    Mr. Gensler. Actually we have that clear authority right 
now.
    The Chairman. Oh, you do.
    Mr. Gensler. Yes. We have that clear authority right now.
    The Chairman. What do you think the House--with regard to 
PJM, what do you believe the House legislation allows you to do 
that you currently cannot do?
    Mr. Gensler. What the House legislation does is it sets up 
a clear number of savings clauses for FERC and then sort of 
directs us to look at our exemptive authority. We have not 
had--under the exemptive authority, somebody would have to come 
and actually file--it is a formal filing to do that exemption, 
and then we would go through it. If somebody did that on these 
financial transmission rights, we would dispatch with it. You 
know, a number of months it takes to dispatch with it. We would 
probably work closely with Chairman Wellinghoff as well.
    But under the Commodity Exchange Act right now, we can do 
this.
    The Chairman. So you do not believe the House legislation 
gives you any additional authority that you do not currently 
have over PJM?
    Mr. Gensler. The House legislation is a broad and very 
important legislation about over-the-counter derivatives, but 
that discussion is really well--I think Mr. Duane would 
probably agree--different and removed in a sense from the PJM 
discussion.
    The Chairman. So you do not think the language of the House 
bill contemplates regulation by the CFTC of PJM or similar 
organizations.
    Mr. Gensler. I think it contemplates that we work closely 
with FERC. Frankly, I think it is with FERC taking the lead on 
any of this. As Chairman Wellinghoff has, I think, artfully 
said, they have a whole unified approach to this regulation.
    But to the extent that any entity--it could be a 
nonfinancial company in America--any entity starts to have some 
centralized market, centralized derivatives markets and so 
forth, then a derivatives regulator could get involved. That is 
the CFTC. I think that is where the uncertainty or ambiguity 
might be for PJM.
    But under the Commodity Exchange Act right now if, as you 
say, something was a clearing organization, we have authorities 
there already.
    The Chairman. Mr. Kelliher, did you have a point of view on 
that?
    Mr. Kelliher. The House bill is complicated to read because 
you have to read a couple different sections--you asked me. Did 
you ask Chairman Wellinghoff or me?
    The Chairman. No, I meant you and then I am glad to hear 
from Chairman Wellinghoff, too.
    Mr. Kelliher. Page 589 of the House bill has a section that 
to me suggests some authority is transferred to the CFTC. This 
is the exemption section I think Chairman Gensler is referring 
to. But it talks about how the CFTC may exempt from its 
regulation agreements, contracts, or transactions that are 
entered into pursuant to a FERC tariff if CFTC determines that 
the exemption will be consistent with the public interest and 
CFTC cannot unreasonably deny any request by FERC for such 
exemption. So to me that suggests that the default is some 
level of FERC regulation shifts to the CFTC unless the CFTC 
decides otherwise. It is really the combination of--the MOU 
provision and this section in tandem I think suggest there is a 
change.
    The Chairman. Chairman Wellinghoff, did you have a point of 
view there?
    Mr. Wellinghoff. I do not think the House bill--well, I 
think this disagreement of jurisdiction predated the House 
bill, first of all. We saw the House bill as a vehicle perhaps 
for us to set a bright line and we went in with that 
discussion. The House chose not to do that, but instead created 
this MOU construct that quite frankly I think leaves it 
primarily to the CFTC under their current authority to 
determine whether there is an exemption. We believe there 
should be a bright line like Senator Lincoln. I think that the 
Congress needs to set a line. The RTOs and things under FERC's 
tariff are within our jurisdiction and NYMEX, ICE, and other 
things are within the CFTC's jurisdiction. So that is really 
what we were hoping for. We did not get that out of the House 
bill. But we hope to be able to work with you and with Chairman 
Gensler to move forward on that.
    The Chairman. Chairman Kelliher, did you have another----
    Mr. Kelliher. I will make just one small comment on how the 
jurisdictional disagreement between the agencies started. It 
really started a few years ago when FERC was implementing the 
anti-manipulation provisions of the Energy Policy Act that you 
took the lead on, and trying to faithfully follow the intent of 
the committee and Congress, you used certain terms that 
suggested FERC's authority to police manipulation is much 
broader than its authority to set rates. So FERC, interpreting 
that, thought manipulation in the futures market that affects 
FERC jurisdictional markets is something Congress wanted FERC 
to police.
    CFTC, I cannot say unreasonably--if I were the CFTC 
Chairman, I would have thought, wait a minute. That is 
intruding into our jurisdiction. We have exclusive jurisdiction 
in certain areas. So there immediately was a disagreement 
between the agencies that has persisted and I think is 
aggravated by the House bill. But I think it is an honest 
disagreement, but at this point I think it is immutable. It has 
been in the courts.
    Mr. Gensler. Yet, if I might to the tchairmen on my right, 
the CFTC and FERC work cooperatively on this. It was that 
Amaranth case, a joint investigation. We filed the cases a day 
apart and ultimately had some joint settlement. So there is a 
lot of actually--even in that case--really working together.
    Now, the defendant filed in the court and asked for this 
jurisdictional thing. But my predecessors at the CFTC were 
really sort of working jointly, I guess, with Mr. Chairman 
Kelliher at the time.
    Mr. Kelliher. I agree. The 2 agencies have actually worked 
very well to exercise their enforcement authorities, 
notwithstanding the disagreement.
    The Chairman. As I indicated before, we have now started 4 
votes on the Senate floor. So I appreciate everybody being 
here. I think this has been useful testimony. I thank everyone 
for coming and we will try to come to a resolution. Thank you.
    [Whereupon, at 11:14 a.m., the hearing was adjourned.]
                               APPENDIXES

                              ----------                              


                               Appendix I

                   Responses to Additional Questions

                              ----------                              

      Responses of Garry Brown to Questions From Senator Bingaman
    Question 1. What would CFTC jurisdiction over FTRs (or any other 
RTO/ISO product) mean for the ratepayers of the state of New York?
    Answer. FERC has presided over the design and implementation of 
these markets and has therefore developed an understanding of them. The 
full potential ramifications of CFTC jurisdiction over such markets is 
unclear and such uncertainty can negatively impact market confidence 
and liquidity and thereby damage the markets. Any increase in costs due 
to imposition of CFTC oversight is likely to impact all resources such 
that the increased costs would become a straight pass-through to 
consumers; the net impact is likely to be a tax on ratepayers.
    But, we can construe a scenario where, under certain conditions, it 
might be possible that if FERC and CFTC had joint enforcement 
jurisdiction with FERC maintaining the primary authority over FTRs, 
benefits to ratepayers may accrue. This situation could be similar to 
FERC's authority over the installed capacity market where FERC 
establishes the rules and regulations but DOJ also reviews the 
antitrust implications of secondary transactions associated with those 
markets.
    Question 2. What value do you believe FTRs provide to New York 
ratepayers? How would CFTC regulation of FTR markets alter that value 
proposition?
    Answer. In New York, FTRs provide benefits to ratepayers by 
allowing their service providers to hedge congestions costs and reduce 
price volatility, and also benefit ratepayers in that revenues from the 
sale of FTRs are credited to ratepayers in the delivery portion of 
their bills. If the move to primary CFTC jurisdiction negatively 
impacts market confidence and/or liquidity, the result would be lower 
FTR sale prices and hence a smaller credit to ratepayer bills. As I 
noted above, however, under certain conditions joint enforcement 
jurisdiction may be beneficial.
      Responses of Garry Brown to Questions From Senator Murkowski
    Question 1. Is there currently a regulatory gap we're trying to 
plug for electric market mechanisms like Financial Transmission Rights? 
Aren't FTRs already regulated by FERC through its review and approval 
of RTO tariffs?
    Answer. FTRs are currently regulated by FERC. However, secondary 
market trading of FTRs is not presently policed by FERC and such 
trading can raise concerns with regard to gaming of the markets. FERC 
is currently posing questions regard their review of secondary FTR 
markets in a rulemaking proceeding (RM10-12).
    Question 2. Why can't utilities clear their derivative transactions 
on exchanges like other standardized commodities?
    Answer. As my testimony points out, the concern is that doing so 
could raise costs to consumers. If a company trades on an exchange, it 
must meet collateral requirements, and the costs of those collateral 
requirements including transactional costs will ultimately be passed on 
to the consumer. Alternatively, if a company determines that these 
costs are too high (making the instrument or transaction not cost 
effective), then the consumer suffers the price volatility risks of 
unhedged transactions.
    Question 3. Does NARUC support an outright exemption for both 
wholesale and retail market participants?
    Answer. Yes. We support an exemption for those entities that rely 
on OTC products and markets to manage price risks for legitimate 
business purposes including utilities, suppliers, and customers.
       Response of Garry Brown to Question From Senator Stabenow
    Question 1. Please share your views on whether the mandatory 
reporting of energy commodity contracts to regulated swap or derivative 
repositories is a regulatory solution that would meet the public policy 
goals of increasing market transparency, mitigating systemic risk, and 
providing price transparency, without hindering the ability for end-
users to hedge their commercial risk or increasing costs to consumers.
    Answer. As was discussed on page 5 of my written testimony, we do 
believe that such reporting would provide sufficient market 
transparency without the costs associated with mandatory clearing.
                                 ______
                                 
    Responses of Vincent P. Duane to Questions From Senator Bingaman
    Question 1. Could you describe the ways in which utilities as well 
as other market participants come to own FTRs?
    Answer. As a regional transmission organization (RTO), PJM serves 
as a transmission provider, obligated under the Federal Energy 
Regulatory Commission's (FERC) regulations, to provide open access, 
non-discriminatory transmission service to customers seeking such 
service within PJM's footprint. One type of transmission service that 
PJM is required to offer, again pursuant to FERC directive, is firm 
transmission service. Although some customers purchase transmission 
service to export power from PJM into neighboring regions, 
overwhelmingly, customers who purchase firm transmission service 
(either network or point-to-point) do so to meet the needs of the end-
use consumers or retail customers that they serve. Firm service allows 
transmission customers, (public utilities, municipal utilities, 
cooperative utilities and competitive retail suppliers) to move 
electricity from one point on the system (typically a generation 
station or hub) to another point (typically a load bus) on a ``firm'' 
basis, which is to say without further cost beyond the transmission 
charges they pay to PJM for firm service.
    In organized wholesale electricity markets, such as the one 
administered by PJM, prices can differ by location at various points on 
the system. These differences result from transmission constraints, 
limiting the volume of electricity that can be moved reliably across 
the system. When such constraints exist, PJM, as the system operator, 
must re-dispatch higher cost generation behind the constraint. The 
higher cost that results behind the constraint is referred to as 
congestion cost. In order to provide ``firm'' service as mandated by 
FERC, and in order to recognize the native load rights of those 
customers that historically have paid for the transmission grid, PJM 
provides firm transmission customers with a mechanism to protect 
against congestion costs. This mechanism is the FTR.
    FTRs are made available to firm transmission customers as a means 
to hedge against congestion charges. The amount of FTRs is finite; it 
is limited by the physical capability of the transmission system and 
calculated using a complex algorithmic model that PJM refers to as a 
``simultaneous feasibility analysis.'' Every 12 months, PJM will 
conduct a simultaneous feasibility analysis to determine the level of 
FTRs that can be allocated over the next 12 month period (or planning 
period).
    Wholesale customers may choose to hold their FTRs or sell them to 
other market participants, which may include other transmission 
customers, generators, or trading firms (including financial 
institutions). Thus, the FTR Auctions permit other market participants 
to bid for and acquire specific FTRs and provides a market-based method 
to determine the value of those FTRs. In this case, while the economic 
value of the FTR, which is to say the price realized by that FTR in an 
auction, will inure to the customer who originally received the 
allocation from PJM, the ultimate holder of the FTR (depending on 
auction outcomes) might be a different entity--potentially another load 
serving utility, or other type of market participant, including a 
financial institution.
    In summary, the value of all FTRs inures to those transmission 
customers who pay in rates for the fixed costs of the transmission 
service (firm transmission customers) in recognition of their historic 
payments for the cost of building out and maintaining the grid that 
serves them. This is true whether the transmission customer continues 
to hold the FTR or whether it receives the realized price of the FTR in 
an FTR Auction (its auction revenue rights). The auction allows 
transmission customers to buy and sell FTRs to obtain a particular 
portfolio of FTRs to best hedge their particular congestion exposures. 
It also efficiently allows for an FTR to be held by the entity that 
places the greatest value on it (i.e., the one who bids highest for it 
in the auction). Finally, FTR holders are free to bilaterally contract 
to sell their FTR to another party outside the auction environment. 
Such bilateral transfers are reported to PJM and are subject to 
particular rules addressing the creditworthiness of the transferee.
    Question 2. Would CFTC jurisdiction over FTRs (or any other RTO 
product) compromise open access to the PJM transmission system for 
market participants? If yes, how?
    Answer. Yes. As described above, the FTR is the means by which 
those RTOs administering locationally priced markets provide firm 
transmission service to their load serving customers, consistent with 
FERC Order No. 888 open access mandates. To treat the FTR as a CFTC-
regulated ``swap'' or ``futures contract'' would impose on RTOs 
requirements relating to the trading, settlement and credit risk 
management of the product that could radically alter the FTR in a 
manner which would frustrate its fundamental purpose--namely to provide 
a means for wholesale customers to serve their native load at a 
predictable price consistent with the concepts of ``firm'' transmission 
service--frustrating the RTO in its mission as a FERC regulated 
transmission provider and wholesale electric market administrator.
    Open access could revert to a system of physically firm 
transmission service with re-dispatch costs indiscriminately socialized 
across all users of the transmission system and a greater reliance on 
physically curtailing or interrupting transmission schedules. The 
efficiencies, greater use and optimization of a transmission system 
brought about by applying market-oriented tools (such as locational 
pricing and FTRs) to provide ``financially firm'' open access is well 
documented. The loss of this efficiency, and the sub-optimal use of the 
transmission system that would follow, will reduce competition and 
increase costs overall to consumers in PJM.
    Finally, CFTC jurisdiction could require RTOs such as PJM to 
register as derivatives clearing organizations (``DCOs''). RTOs would 
then have to establish admission and financial eligibility standards 
for organizations who wish to do business within RTO markets. Users of 
PJM markets range from very large utilities to very small municipal 
systems, as well as industrial and commercial customers. FERC's 
regulation has been designed to ensure nondiscriminatory access to 
these markets by all commercial entities, regardless of size. Any 
requirement that PJM impose these new financial eligibility standards--
standards that are more applicable to traders on large exchanges--could 
prove difficult and costly for small entities such as small utilities, 
renewable resource developers and end-use customers. In essence, this 
would be placing a barrier to PJM's competitive wholesale markets with 
little demonstrated concomitant benefit.
    Question 3. Your testimony states that PJM has never found a CFTC-
registered clearinghouse interested in or able to clear the FTR 
positions of PJM's market participants. Could you describe the reasons 
why registered clearinghouses declined to take the business of clearing 
FTR positions in PJM?
    Answer. In 2004, PJM's management met repeatedly with 
clearinghouses and clearing organizations to examine the potential for 
credit clearing services to be provided to PJM's members. PJM was 
advised in this matter by Deloitte & Touche. Based on these 
discussions, the following basic challenges became apparent: (1) 
calculating variation margin (or marking the position to market) would 
be difficult or impossible given the infrequently established reference 
prices that in turn result from FTR Auctions occurring only once every 
month, and insufficient secondary market trading of FTRs between 
auctions, (2) the risk of unforeseen grid outages and other physical 
factors that can dramatically affect the expected future value of an 
FTR position, making it very difficult for a clearinghouse to properly 
assess price risk; (3) the differing tariffs governing FTRs among 
various RTOs, which limit the opportunity for netting of FTR positions 
across several RTOs, as would be necessary to support a viable 
clearinghouse; and (4) PJM's inability at that time to novate positions 
to the clearinghouse due to the absence of clear legal authority to 
effect such novation. Some of these challenges are surmountable. Others 
could be managed only by significantly redefining the product as it 
exists today, potentially so radically as to reduce or eliminate the 
value of the FTR as a hedging tool for firm transmission customers.
    Question 4. If the CFTC found that PJM was required to become a 
Designated Clearing Organization, what steps would PJM have to take? Do 
you have cost estimates for those steps? From whom would you recover 
those costs?
    Answer. If the CFTC were to determine that PJM is a DCO, PJM would 
be required to register with the CFTC and to demonstrate that it 
complies with the CFTC's ``Core Principles'' applicable to DCOs. As 
explained below, most of the CFTC's DCO Core Principles are not well-
suited for RTO markets because RTOs do not provide ``clearing 
services'' within the meaning of the Commodity Exchange Act (``CEA'') 
and offer products that (a) are integrally related to physical energy 
and transmission services, and (b) are not ``futures,'' or other forms 
of derivatives.
    The DCO Core Principles include:

   Financial Resources.--DCOs must demonstrate adequate 
        financial, operational, and managerial resources to discharge 
        their regulatory responsibilities. RTOs do not maintain default 
        insurance, guarantee funds, or other tiers of protection (e.g., 
        an intermediary default structure analogous to the role of 
        futures commission merchants with respect to DCOs) to mitigate 
        the impact of a participant default. Instead, RTOs require 
        market participants to provide financial security (except where 
        unsecured credit is permitted). When a member's financial 
        security is exhausted, the RTO will allocate the default 
        shortfall to its members through a ``default allocation 
        assessment'' according to the terms of the RTO's Operating 
        Agreement. If RTOs were required to adopt some or all of the 
        financial safeguards used by DCOs, it would force PJM's members 
        to accept substantially higher operating costs and capital 
        requirements (e.g., margin). PJM's Members then would likely 
        pass these costs on to ratepayers.
   Participant and Product Eligibility; System Safeguards.--
        DCOs must establish appropriate minimum standards for the DCO's 
        participants and products. In addition, DCOs must establish and 
        maintain a program of oversight and risk analysis to ensure the 
        ongoing integrity of the DCO as a whole (including emergency 
        procedures for data backup and disaster recovery).

    All RTO market participants are members of the RTO. There are no 
        tiers of members (e.g., clearing or non-clearing members) and 
        no minimum financial membership criteria, although members must 
        comply with PJM's credit policies. This is consistent with 
        FERC's general policy of encouraging open access to the RTO 
        markets. Requiring RTOs to limit their membership, would 
        undermine long-standing FERC policy regarding open, non-
        discriminatory transmission and power markets.

    Similarly, if RTOs are required to clear their products and 
        services (including) FTRs) in a manner comparable to a DCO 
        clearing futures contracts, RTOs may be forced to substantially 
        modify or even eliminate those products because the RTO may not 
        be able to conform simultaneously with both FERC's and the 
        CFTC's regulatory requirements. For example, DCOs typically 
        mark positions to market and collect variation margin based 
        from market participants on a daily basis. FTRs are priced 
        infrequently through auctions that typically occur only once a 
        month. Each auction includes both buyers and sellers, but 
        unlike a futures exchange where buyers and sellers enter into 
        equal and opposite standardized contracts, the FTRs and the FTR 
        market are defined by the physical characteristics of the 
        transmission system. Because each FTR is essentially a 
        customized product, FTR buyers and sellers cannot be matched to 
        standardized contracts, and there is no certainty that any 
        particular FTR will be priced in any given auction. 
        Notwithstanding the CFTC's regulatory requirements for DCOs, 
        PJM cannot calculate its exposure using a current market 
        reference price with any regularity, and therefore as a 
        practical matter, cannot use daily demands for incremental 
        collateral to manage risk.

    At a minimum, certain DCO Core Principle concepts, including daily 
        margining and calculation of value-at-risk, would need to be 
        translated to work within the limits of the RTO market. 
        Notably, the CFTC's regulatory requirements for credit risk 
        management policies would need to be adjusted to rely more on a 
        retrospective examination of price behavior and statistical 
        modeling, and less on a real-time analysis of actual market 
        conditions. Although some aspects of the regulatory program for 
        DCOs may be beneficial, they are mostly incompatible with and 
        cannot reasonably be applied to RTO markets and products.

   Settlement Procedures.--DCOs must be able to complete 
        settlements on a timely basis, even under adverse conditions. 
        In addition, DCOs must adequately record the flow of funds 
        associated with each cleared transaction, and must comply with 
        the terms and conditions of any netting or offset arrangements 
        with other clearing organizations. RTOs already maintain robust 
        settlement systems. If necessary, these systems likely could be 
        adapted to comply with the DCO Core Principles.
   Protection of Customer Funds.--DCOs must develop and enforce 
        standards and procedures to protect member and participant 
        funds. This concept is inapposite to RTOs because RTOs are not 
        themselves market participants. Indeed, definitional 
        requirements imposed on RTOs by FERC, requiring independence, 
        prevent RTOs from proprietary trading in its own account while 
        at the same time serving as a custodian for accounts of 
        customers also participating in the RTOs markets. Again, this 
        principle follows from the intermediary structure of seat 
        holders and ``futures clearing merchants'' characterizing 
        exchanges and clearinghouses respectively. This structure does 
        not characterize RTOs.
   Rules and Procedures.--DCOs must publish all rules and 
        operating procedures, including rules to ensure the efficient, 
        fair, and safe management of events when members or 
        participants become insolvent or otherwise default on their 
        obligations. In addition, DCOs must demonstrate adequate 
        ability to monitor and enforce compliance with the DCO's rules 
        (such as, through either internal resources or arrangements 
        with an outside compliance organization). RTOs have the ability 
        to allocate member defaults through a ``default allocation 
        assessment'' that is similar to the procedure used by DCOs in 
        the event of a member default. Other aspects of the DCO Core 
        Principles do not reasonably apply to RTOs. For example, the 
        ``customer priority rule'' cannot apply to RTOs because RTOs do 
        not themselves engage in the markets they administer. 
        Similarly, although DCOs are required to maintain extensive 
        surveillance and enforcement programs, this role in RTO markets 
        is performed by FERC and the RTO's independent market monitor. 
        RTOs are not self-regulatory organizations as that concept is 
        applied by the CFTC; rather they are heavily regulated 
        organizations subject to comprehensive oversight by the FERC.
   Reporting and Recordkeeping.--DCOs must provide to the CFTC 
        all information necessary for it to oversee the DCOs' 
        activities. In addition, DCOs must maintain all business 
        records for five years in a form acceptable to the CFTC. RTOs 
        already comply with extensive FERC reporting and recordkeeping 
        requirements. Although RTOs likely could comply with this DCO 
        Core Principle, the CFTC's reporting and recordkeeping 
        requirements may be duplicative of, and less comprehensive 
        than, the requirements already imposed by FERC.

    The DCO registration process takes approximately six months from 
the date when a DCO application is submitted, unless the CFTC's 
Division of Market Oversight grants an applicant's request for an 
expedited 90-day review. The process of preparing the DCO application 
is, however, time-consuming and expensive. Therefore, the complete 
registration process will likely take considerably longer than six 
months.
    Question 5. Could you describe some of the attributes of FTRs that 
you believe distinguish them from futures?
    Answer. The CEA has never defined what constitutes a contract for 
future delivery. However, precedent from the CFTC and various federal 
courts has identified the following common characteristics of futures 
contracts:

   Standardized, non-negotiable terms.
   Future delivery.
   Ability to enter into equal and opposite offsetting 
        transactions.
   Price at which the underlying commodity will be delivered in 
        the future is fixed on the date when a market participant 
        enters into a futures contract.
   Offered to the public.
   Secured with margin.

    These elements of a futures contract generally do not apply to 
FTRs.
    FTRs are not standardized and are not fungible. Each FTR is based 
on the hourly congestion price differences across a particular 
transmission path in the Day-Ahead Energy Market (i.e., the price 
difference between any two locational marginal price (``LMP'') points 
within an RTO system). FTRs can vary in terms of quantity (in MW) and 
duration (e.g., one month, three months, etc.). In each FTR Auction, 
there are hundreds of thousands of possible FTR combinations upon which 
market participants may bid. In contrast, NYMEX futures contracts for 
electricity are based on the price of electricity between two fixed 
time periods, and at a few highly liquid nodes.
    FTR positions cannot be financially settled or closed-out through 
offsetting transactions. A long (purchase) futures contract can be 
settled by purchasing an equal and opposite ``offsetting'' short (sale) 
futures contract. In contrast, FTRs must only be, as a whole, 
``simultaneously feasible'' such that all outstanding positions remain 
within the physical limitations of the transmission system. In other 
words, for each long FTR position, there is not necessarily one single 
equal and opposite short position held by another market participant. A 
long FTR between two LMP points (A to B) may be closed out, in whole or 
in part, by a combination of FTR positions involving different but 
related LMP points (C to D and D to E, for example, where actual 
physical flows on paths C to D and D to E involve some flow of 
electrons across path A to B). This is fundamentally different from a 
futures contract and how futures markets operate.
    FTRs are not offered to the general public. FTRs are offered only 
to members of a particular RTO, which typically consists primarily of 
transmission owners, load serving entities, generation owners, electric 
distributors, end-use commercial and industrial customers, and power 
marketers.
    FTRs are not secured through daily margin payments. Each RTO 
establishes credit requirements according to a process set forth in its 
respective, FERC-approved tariff. For example, some RTOs establish 
credit requirements for market participants holding FTRs 
retrospectively by reference to the historical value of the positions, 
adjusted by a factor designed to reasonably anticipate atypical market 
conditions. Because FTRs are allocated through an auction based 
process, it is not possible to establish values for FTRs even on a 
monthly basis. In each FTR Auction, only a small fraction of the 
potential FTR combinations are bought or sold. As a result, there is 
insufficient liquidity across the numerous FTR paths to establish daily 
``market'' values for forward FTR positions, and therefore, 
insufficient market information to support more frequent margin 
calculations.
    Question 6. In 2003, PJM revised its market rules so that FTRs were 
available to all transmission service customers and PJM members. What 
motivated that revision?
    Answer. On June 1, 2003, in response to a request by customers to 
provide them with more liquidity and flexibility, PJM supplemented the 
direct allocation of FTRs with an allocation of ``auction revenue 
rights'' or ``ARRs'' coupled with an Annual FTR Auction. This change 
gave firm transmission customers the option to receive the economic 
value of the FTR (as realized in an auction) or instead, simply convert 
the ARR to the underlying FTR, so as to replicate the direct FTR 
allocation outcome that existed prior to June 1, 2003. Auction revenue 
rights can be regarded as the financial proceeds realized by selling 
the underlying FTR in an auction. Since FTRs are specific to particular 
geographic points on the grid, customers may find that they are unable 
to receive an allocation of all the precise FTR paths they might 
request. In such cases, they may prefer to retain the auction revenue 
rights in place of the FTR, and use the proceeds realized by selling 
one FTR to purchase another that better suits their changing supply 
obligations or perception of expected patterns of congestion.
    In short, the institution of an auction marketplace for FTRs in 
2003, as requested by wholesale customers, provided further options to 
those transmission customers entitled to an allocation of FTRs. First, 
establishing a marketplace provided these customers a forum to sell 
FTRs and buy alternate FTRs that might better match their hedging 
needs, given the location and nature of the load they served. Second, 
it provided efficiency through a transparent auction environment that 
ensured that a party placing the greatest value on a specific FTR was 
able to procure that FTR. Often, the party placing the greatest value 
on a particular FTR (thereby willing to pay the highest price for this 
FTR) is not the party to whom the FTR is originally allocated. In such 
a case, the original holder would prefer receipt of the auction revenue 
rights associated with that FTR (i.e., the price realized for that FTR 
in the auction) rather than the FTR itself. This change was endorsed by 
the PJM stakeholders and approved by the FERC.
   Responses of Vincent P. Duane to Questions From Senator Murkowski
    Question 1. Is there currently a regulatory gap we're trying to 
plug for electric market mechanisms like Financial Transmission Rights? 
Aren't FTRs already regulated by FERC through its review and approval 
of RTO tariffs?
    Answer. No, there is no regulatory gap that needs to be filled as 
FTRs and the FTR Auction process are subject to pervasive regulation by 
FERC. As stated in my testimony (Section 4b), virtually from the 
inception of PJM's markets, FERC directed the creation of FTRs as a 
means to allocate to transmission customers equitable access to the 
transmission grid. In PJM, the FTR product was approved by FERC more 
than a decade ago upon the creation of PJM's organized markets in 1997.
    Furthermore, in section 217 of the EPACT of 2005 Congress states 
its intention that FERC regulate FTRs comprehensively, including their 
formation, initial allocation, and transfer among various entities, as 
well as the trading of any excess FTR rights. PJM believes that Section 
217 makes clear that the Congress intended for the FERC to regulate 
FTRs because of their inextricable link to the underlying transmission 
grid and electricity market structure. The plain language of Section 
217 indicates, in our opinion, Congress' desire that the FERC's 
regulation should be unambiguous in this area, guided by its expertise 
in transmission regulation.\1\
---------------------------------------------------------------------------
    \1\ Testimony of Vincent P. Duane, Vice President & General Counsel 
PJM Interconnection, L.L.C. Impacts of Potential Financial Markets 
Reform Legislation on Organized Wholesale Electricity Markets'' March 
9, 2010.
---------------------------------------------------------------------------
    Question 2. Why can't utilities clear their derivative transactions 
on exchanges like other standardized commodities?
    Answer. To the extent this question refers to derivative 
transactions that take place in over the counter environments, PJM does 
not take a position on the merits of clearing standardized derivatives 
or an end user exemption to mandatory clearing. If the question refers 
to arguably derivative products in RTO environments, such as the FTR, 
PJM would respectfully reference its prior answers to Senator 
Bingaman's questions 3-5 above.
    Question 3. What role do financial entities play in the organized 
wholesale electricity markets? I understand that in addition to 
bringing in needed liquidity some financial entities, like J.P. Morgan, 
have actual electric delivery obligations.
    Answer. Financial entities can play an important role in wholesale 
electricity markets. With the introduction of competitive retail 
service in several PJM states, entities such as Morgan Stanley, Goldman 
Sachs (J. Aron) and J.P. Morgan act as ``load serving entities'' in 
PJM. Moreover, many traditional utility or energy companies maintain 
proprietary trading businesses that, in part, financially optimize and 
hedge the physical generation and load positions of their affiliate 
utility operations, but also trade in PJM's markets, in much the same 
manner as ``financial entities.'' For these reasons, PJM would suggest 
that rather than drawing distinction between ``financial entities'' and 
other entities, it may be more helpful to distinguish between 
speculation and hedging, keeping in mind that both financial entities 
and traditional energy companies can engage in both functions from time 
to time.
    Trading (by ``financial entities'' or energy company/utility 
affiliates) is valuable to PJM's markets and promotes efficiency and 
lower prices, up to a point. Excessive speculation, concentration of 
risk, and abusive trading can distort pricing and result in costs to 
consumers. PJM and FERC guard against these risks through active market 
monitoring and enforcement by both an independent market monitor and 
FERC itself. Furthermore, PJM continuously refines its market rules to 
manage these risks, and is currently in dialogue with its stakeholders 
and FERC about such concepts as the role of unsecured credit, position 
limits, minimum net worth requirements for participants and limits on 
aggregate financial guarantees.
    Question 4. Aren't FTRs directly tied to the physical limitations 
of the grid meaning there's a finite amount in the market? Please 
explain.
    Answer. Yes. FTRs are financially-settled products that 
transmission customers use to hedge against the cost of congestion, 
that are directly tied to the physical characteristics and limitations 
of the transmission system. FTRs can be created only by RTOs or ISOs 
and their number and composition is determined based upon the 
transmission system topology and the physics of physical power flows.
    Congestion occurs when the least costly resources available to 
serve load in a given area cannot be dispatched because the physical 
limitations of the transmission lines located between the source point 
(sending end/generator) and the sink point (receiving end/customer 
site) prevent the movement of electricity from these generation 
resources to the load. FTRs help hedge congestion risk by providing 
payments that are proportional to the congestion that transmission 
customers would encounter over a specified transmission path.
    In order to provide an effective risk management product, the FTRs 
that are awarded through the auction process must correspond to the 
actual transmission capabilities of the system. If too many FTRs are 
awarded for a certain transmission path, the RTO would be over-
committed and the efficacy of the FTR as a hedging tool would be 
compromised. To maintain the integrity of the FTR market, the FTR 
Auction process relies on a linear algorithm that only awards FTRs to 
bidders who have submitted a ``simultaneously feasible'' combination of 
bids. A combination of bids is ``simultaneously feasible'' if the RTO's 
actual transmission system can accommodate simultaneously transmitting 
the electricity underlying each FTR transaction. Because of the physics 
associated with transmitting electricity, the total quantity of FTRs 
can increase above the nominal capacity of the transmission system if 
there are prevailing flow and counterflow FTRs over the same 
transmission path. However, even in this case, the total number of FTRs 
in the market is absolutely limited by the physical characteristics of 
the transmission system.
    Question 5. In 1998, PJM, the largest wholesale electric market in 
the world, asked the CFTC through a No Action letter to clarify certain 
regulatory uncertainties related to the RTO's standing as a Derivatives 
Clearing Organization. It is my understanding that the CFTC failed to 
respond for over a decade but just recently turned to this issue, is 
that correct? What was the agency's reason for failing to consider the 
request in a timely manner? How is this regulatory certainty impacting 
the organized markets?
    Answer. On October 19, 2000, PJM filed a request with the CFTC's 
then Division of Trading and Markets for no-action relief. As required 
by CFTC rules, PJM periodically provided the Division with updated or 
supplemental information. PJM believes that it has a very professional 
and constructive relationship with the CFTC and its Staff. We are not, 
however, privy to the CFTC's internal activities or deliberations 
relative to PJM's no-action request, and accordingly, cannot offer the 
Committee any insight on this subject.
    PJM is concerned that if the present uncertainty continues, 
decreased liquidity and increased volatility will ultimately raise 
costs for consumers and compromise the integrity of PJM's markets. The 
most troubling aspect of the recent public attention given by the CFTC 
to the FTR markets is the potential for a defaulting FTR holder to 
allege that the FTR is illegal and unenforceable because it was not 
traded in an environment registered with or overseen by the CFTC. 
Hopefully, this risk is remote. Resolution of the pending no-action 
request in a manner which does not raise the specter that these 
products needed to have been registered with the CFTC since their 
inception would remove this risk.
    Question 6. Didn't PJM at one point approach NYMEX regarding these 
RTO-market instruments and the Exchange had zero interest in clearing 
those products? Wasn't the rationale because the risk associated with 
instruments like FTRs are tied to the realities of the system?
    Answer. PJM has explored clearing services from a CFTC-registered 
clearinghouse, but has never found a DCO willing or able to clear PJM's 
FTR product. As discussed above in response to Senator Bingaman's 
question 3, the physical characteristics of PJM's FTR product and the 
special requirements of PJM's FERC-regulated markets make the clearing, 
as defined by the CFTC, of FTRs impossible. Instead, PJM has 
implemented credit policies and mechanisms to protect the integrity of 
its markets that are tailored to its products and the services it 
offers. These provisions, developed in consultation with FERC and 
codified in its tariff, are as effective as the CFTC's Core Principles, 
but also compatible with how RTO markets are required to function.
                                 ______
                                 
   Responses of Joseph T. Kelliher to Questions From Senator Bingaman
    Question 1. What would CFTC jurisdiction over FTRs mean for FPL 
Group, its customers and, more generally, ratepayers located in RTO/
ISOs?
    Answer. FPL Group has two principal subsidiaries: NextEra Energy 
Resources, LLC, the owner of competitive generation assets and an 
energy marketing company (NextEra Energy), and Florida Power & Light 
Company (FPL), a vertically integrated utility in Florida. NextEra 
Energy operates in 26 states and is the largest wind developer in the 
United States.
    The Commodity Futures Trading Commission (CFTC) jurisdiction over 
FTRs may have a variety of impacts on NextEra Energy and its customers. 
First, NextEra Energy would be eligible for certain regulatory 
exclusions and exemptions because it is an ``eligible contract 
participant'' (ECP), as currently defined by Commodity Exchange Act 
(CEA). As an ECP, transactions involving FTRs would be exempt from all 
but the anti-manipulation provisions of the CEA to the extent that FTRs 
are considered to be transactions in ``exempt'' commodities. Therefore, 
under current law, NextEra Energy's transactions in FTRs are subject to 
overlapping anti-manipulation authorities by FERC and CFTC.
    Should the CFTC assert jurisdiction over FTRs, NextEra Energy's 
transactions in FTRs could be subject to clearing and margining 
requirements, which would increase NextEra Energy's transaction costs. 
These increased costs likely would be passed along to our ratepayers. 
In addition, the CFTC could apply position limits to transactions in 
FTRs, which could undermine or limit the ability of utilities and other 
RTO participants to utilize this important tool in managing 
transmission congestion costs.
    CFTC regulation of FTRs is likely to be different than FERC 
regulation in other respects. While FERC has allowed most FTRs to be 
allocated to load-serving utilities on a long-term basis to assure just 
and reasonable rates, I would expect the CFTC may require auctioning of 
all FTRs, which would make it much more expensive for load-serving 
utilities to manage congestion risk. Moreover, CFTC may also disfavor 
long-term transmission rights, and shorten the term of FTRs. That would 
be directly contrary to legislative provisions in the Energy Policy Act 
of 2005 that govern FERC, but not the CFTC, so those provisions do not 
bind the CFTC. This approach would expose consumers to transmission 
congestion risk, greater price volatility, and less predictable prices.
    Under the proposed amendments to the CEA contained in H.R. 4173, it 
appears that FTRs may fall within the definition of a swap. If that is 
correct, under the amended CEA, FTRs would be subject to the exclusive 
jurisdiction of the CFTC, notwithstanding FERC's traditional role as 
the principal regulator of RTO and ISO markets. This jurisdictional 
change would create uncertainty about the FERC's continuing oversight 
role, if any, over FTRs and other aspects of RTO markets. As swaps, 
FTRs may be subject to mandatory clearing (depending upon whether they 
are considered hedges and whether parties who enter into hedges are 
considered Major Swap Participants under the legislation), which, as 
noted above, may subject them to margining requirements and increase 
NextEra Energy's transaction costs. Regulatory uncertainty typically 
increases transaction costs, which likely would have to be passed along 
to ratepayers.
    Question 2. Are EEI members that operate within RTO and ISO markets 
recipients of allocated FTRs? How would these members and their 
ratepayers be affected by CFTC jurisdiction over FTRs? What would it 
mean for these companies and their ratepayers if FTR allocations were 
revised or altered?
    Answer. EEI's members are U.S. shareholder-owned electric companies 
that serve 95 percent of the ultimate customers in this segment of the 
industry and represent approximately 70 percent of the U.S. electric 
power industry. Many EEI members operate within RTO and ISO markets 
that offer FTRs or comparable products.
    The manner in which transmission customers acquire FTRs is governed 
by the terms of the applicable RTO or ISO tariff, which is subject to 
FERC regulation. In many markets, FTRs are awarded through an auction 
process. In each auction, bids submitted by prospective FTR holders are 
evaluated using a software algorithm that determines the most economic 
combination of bids that still falls within the limits of the system's 
actual capacity (i.e., the best combination that is ``simultaneously 
feasible''). Notably, some otherwise economic bids may not clear the 
FTR auction due to the physical limitations of the transmission system.
    RTO and ISO markets that allocate FTRs through an auction also may 
provide firm transmission customers with a form of ``auction revenue 
rights'' to offset the cost they incur acquiring FTRs that correspond 
with their transmission positions. Auction revenue rights are not FTRs, 
but in the markets where they exist, they can typically be converted 
into FTRs through the FTR auction process.
    Some RTO and ISO markets also allocate FTRs through direct sales to 
transmission owners, direct allocations for contributions made to 
network upgrades, or conversions of transmission capacity associated 
with certain existing transmission agreements.
    CFTC jurisdiction over FTRs and the FTR auction process would 
complicate RTO and ISO efforts to comply with FERC Order No. 2000 by 
making it more difficult for transmission customers to manage their 
congestion risk. Transmission customers who rely on FTRs would 
immediately face substantial uncertainty as to whether FTRs qualify as 
regulated futures contracts (under existing law or the proposed CEA 
amendments) or swaps (under the proposed CEA amendments), or whether 
they may be exempt from regulation under one or more statutory or 
regulatory provisions. In addition, the FTR auction process would 
create uncertainty as to whether RTOs and ISOs may need to register as 
a contract market or comply with the requirements applicable to CFTC-
regulated ``trading facilities.'' More generally, the CFTC may assert 
that the RTO or ISO provides clearing services that requires it to 
register as a derivatives clearing organization. The uncertainty 
resulting from any one of these scenarios would undermine the viability 
of the FTR process.
    If RTO and ISO market participants are unable to use FTRs to hedge 
their congestion risk, many of EEI's members and their rate-paying 
customers will be exposed to greater electricity price volatility and 
less predictable prices.
    Question 3. Are EPSA members that operate within RTO and ISO 
markets recipients of allocated FTRs? How would these members and their 
customers be affected by CFTC jurisdiction over FTRs? What would it 
mean for these companies and their customers if FTR allocations were 
revised or altered?
    Answer. EPSA is the national trade association for competitive 
wholesale power suppliers, including generators and marketers. EPSA 
members include both independent power producers and the competitive 
wholesale generation arms of certain utility holding companies. The 
competitive sector operates a diverse portfolio that represents 40 
percent of the installed generating capacity in the United States. EPSA 
members do business nationwide, both in the two-thirds of the country 
served by RTOs or ISOs and the remaining one-third of the country 
dominated by traditional vertically-integrated utilities
    Although merchant generators are not allocated FTRs by the RTOs, 
these FTRs underpin the pricing, reliability and congestion management 
of the entire RTO. Therefore, all of the consequences enumerated in the 
response to question #2 would apply to EPSA members, who rely on well-
functioning RTO markets to provide wholesale electric service to their 
customers.
    Question 4. FPL Group's subsidiary NextEra Energy is a competitive 
generator and the largest wind developer in the United States. Does 
CFTC jurisdiction over FTRs or other products create a disincentive to 
invest in renewable generation, transmission infrastructure, or new 
technology?
    Answer. Regulatory uncertainty is never an incentive to investment 
in any endeavor, including renewable generation and transmission 
infrastructure. To the extent that Congress determined that FTRs and 
other ISO products were to be solely regulated by the CFTC and not the 
FERC then the answer to your question would largely depend on the 
nature of the regulations and consistency of oversight in conjunction 
with the other interrelated FERC jurisdictional products associated 
with building, interconnecting and running renewable generation or 
transmission infrastructure.
    CFTC regulation of FTRs would introduce significant risk into their 
renewable energy development decisions, since they would bear the risk 
associated with this uncertainty. Some wind developers build merchant 
projects that are not backed by long-term contracts. The uncertainty 
regarding FTRs would introduce significant risk in their investment 
decisions, since they would bear the risk of transmission congestion. 
Wind developers that build under contract are typically not the party 
most concerned with congestion and transmission regulatory issues 
because such risks are frequently passed on to the off-taker of the 
power under the terms of the Power Purchase Agreement (PPA). However, 
to the extent CFTC jurisdiction over FTRs and other ISO products 
creates additional regulatory risks or uncertainty, or creates or 
increases the risk of regulatory conflicts for products that were once 
under a single regulatory construct for the off-taker, the off-taker is 
likely to account for such risk by reducing the contract price paid 
under the PPA. That would make some projects uneconomic.
    Any reduction in prices received for the power would negatively 
impact the ability of the developer, who will rely on the PPA price to 
inform its investment decision, to obtain financing for the project. In 
many if not most instances, a renewable investment that cannot be 
financed will not be built.
    Therefore, the primary issue is not so much one of an upfront cost 
impact on NextEra Energy development, but one of regulatory uncertainty 
and its likely implications on the economics of renewable investment. 
Entry by the CFTC into traditionally FERC-regulated products will 
disrupt and bifurcate the current unitary regulatory scheme, with such 
regulatory uncertainty leading to a disruption of the marketplace, 
resulting in increased costs in the areas of both compliance and risk 
mitigation for all parties involved in the product chain and lower 
prices for renewable project developers.
    Question 5. Your testimony states that the requirement to clear 
and/or trade transactions on an exchange would materially increase both 
wholesale and retail rates. Has FPL Group sought to estimate the scope 
of these rate increases?
    Answer. As a competitive power company, renewable energy provider, 
and vertically integrated utility, FPL Group has been closely following 
the financial reform legislation from the perspective of its impact on 
our customers, who are wholesale and retail electric consumers. FPL 
Group has calculated the amount of additional margin that it would be 
required to post if all OTC transactions were required to be traded on 
exchange several times in the last year. FPL Group has made these 
calculations to ascertain at a high level how much of an impact the 
legislation would have on energy costs. NextEra Energy would be 
required to post approximately $100,000,000\1\ in incremental margin 
and FPL, our utility, would be required to post approximately 
$600,000,000\2\ in incremental margin. The costs of transacting on 
exchange or through a clearinghouse due to delivering large amounts of 
incremental margin to the exchanges or clearinghouses would likely end 
up as additional costs ultimately to be absorbed by end-users and 
ratepayers.
---------------------------------------------------------------------------
    \1\ Calculation made as of September 30, 2009.
    \2\ Calculation made as of March 24, 2010.
---------------------------------------------------------------------------
    Rather than trying to pin down all the variables needed to estimate 
a dollar per megawatt impact to wholesale and retail rates, the real 
focus should be on the broader issue of energy companies and end-users 
having to raise enormous amounts of capital without a corresponding 
increase in revenues at a time when that capital is needed to start 
rebuilding the economy. Nevertheless, we believe such costs could end 
up materially increasing wholesale and retail rates given the sheer 
size of the incremental margin that will be needed.
    The purpose of the broader financial regulatory reform legislation 
is to reduce systemic risk in the financial sector. In my view, a 
requirement to clear and trade energy commodities does not reduce 
systemic risk in any fashion, and instead introduces liquidity risk 
associated with posting margin. While FPL Group supports the goal of 
financial regulatory reform, the ability of electric and natural gas 
companies to use OTC energy derivatives for legitimate business 
purposes should be preserved.
  Responses of Joseph T. Kelliher to Questions From Senator Murkowski
    Question 1. Is there currently a regulatory gap we're trying to 
plug for electric market mechanisms like Financial Transmission Rights? 
Aren't FTRs already regulated by FERC through its review and approval 
of RTO tariffs?
    Answer. There is no regulatory gap in the regulation of FTRs. FTRs 
are fully regulated by FERC under FERC-approved tariffs, and have been 
since the RTOs began using these products more than a decade ago. There 
has been no assertion of a gap in regulation. Instead, a question has 
been raised of whether or not FTRs have attributes of commodities or 
derivatives, and, therefore, are subject to overlapping regulation by 
CFTC under the CEA. We believe that allowing such regulatory overlap 
would undermine the effectiveness of FTRs in addressing congestion 
within the RTOs and raise costs to RTO participants and the consumers 
they serve.
    Question 2. Why can't utilities clear their derivative transactions 
on exchanges like other standardized commodities?
    Answer. EEI and EPSA members use OTC derivatives extensively to 
manage commodity price risk for electric power, natural gas and other 
fuels, as well as to contain risk-related costs when financing energy 
infrastructure. A requirement to clear all derivatives transactions 
would greatly reduce the ability of companies to find the customized 
derivative products they need to manage their risks because 
clearinghouses and exchanges require a high level of margin and 
collateral for the derivatives and commodities products traded.
    Customization of contracts is necessary for everything from 
specific delivery points in electricity to quantities of natural gas. 
Without the ability to use these customized transactions, energy 
suppliers would be severely constrained in the types of products and 
the costs of those products that could be offered to consumers. In 
addition, for centrally cleared products to be effective, 
standardization and a critical mass of market participants are 
essential. For example, in the case of electricity, since its unique 
physical nature precludes significant storage and requires that it be 
consumed when generated in hundreds of physical markets, the 
prerequisites for standardized and centralized clearing are missing. 
So, electricity price risk cannot be managed through a selection of 
exchange-traded contracts. Rather, such derivatives often require 
customization in order to be effective.
    While centrally cleared exchanges strictly require cash collateral, 
individually negotiated OTC contracts allow hedging entities to use 
alternative collateral structures such as asset liens, credit lines or 
no collateral below agreed upon thresholds. Providing such flexibility 
frees up scarce capital for investments in energy infrastructure. 
Conversely, not allowing such collateral structures and forcing all OTC 
transactions to clear through exchanges would unnecessarily divert 
substantial capital from productive investments and drive up the price 
of energy commodities.
    Limiting access to these risk management tools by mandating the 
clearing of OTC transactions would jeopardize the ability of energy 
providers to manage risks, increase consumers costs and increase 
excessive consumer exposure to market volatility. The OTC derivatives 
markets' very purpose is to provide customized solutions that meet the 
individual needs of customers with flexible products as well as 
diversified margin and collateral requirements. Provisions requiring 
clearing of transactions will only increase costs and limit market 
participants' ability to manage risks without creating comparable 
offsetting benefits.
    Question 3. Mr. Kelliher, as a former FERC Chair, you've stated 
that an MOU, as called for in the House-passed legislation, is 
insufficient to resolve jurisdictional issues between FERC and CFTC. 
Please explain.
    Answer. As FERC Chairman, I entered into a number of Memoranda of 
Understanding (MOU) with other federal and state agencies, including 
the CFTC. An MOU is a useful vehicle for two or more agencies to 
coordinate how they will exercise their respective legal authority in a 
manner that avoids or minimizes conflict between the agencies, improves 
their ability to discharge their respective statutory duties, and 
provides greater transparency to the regulated community.
    However, the MOU in the House bill has an altogether different 
purpose. The purpose of the MOU provision in section 3009 is not to 
coordinate how FERC and the CFTC will exercise their jurisdiction, but 
to define the jurisdiction of the two agencies. With respect, I believe 
that is the duty of the Congress and is not something that should be 
the subject of a MOU.
    Under section 3009(a)(1) the CFTC and FERC are directed to 
negotiate an MOU to ``establish procedures for applying their 
respective authorities in a manner so as to ensure effective and 
efficient regulation in the public interest, resolving conflicts 
concerning overlapping jurisdiction between the two agencies, and 
avoiding, to the greatest extent possible, conflicting or duplicative 
regulation.''
    As was discussed at the hearing, there is a jurisdictional 
disagreement between FERC and the CFTC. The heart of the dispute is 
that FERC has interpreted the anti-manipulation authority granted by 
Congress in the Energy Policy Act of 2005 as requiring it to police 
market manipulation in futures market that affects jurisdictional 
wholesale power and natural gas markets. The CFTC objects to this 
interpretation, and would prefer that FERC limit the scope of its anti-
manipulation authority.
    This disagreement has now endured for nearly three years, and has 
spilled into litigation regarding FERC enforcement proceedings against 
companies it believes engaged in market manipulation. There is no 
reason to expect that either agency will alter its position, since both 
agencies appear to interpret current law regarding their respective 
jurisdiction and statutory duties differently. As a practical matter, 
if the two agencies disagree on how to interpret current law, there is 
no reason to expect an MOU can resolve that disagreement.
    In my opinion, the MOU provision of H.R. 4173 will prove 
ineffective because the agencies are unlikely to agree on 
jurisdictional boundaries, and an MOU that defines the respective 
jurisdiction of the two agencies is unlikely to be entered into. The 
disagreement will continue.
    Congress can compel two agencies to begin a discussion about a 
possible MOU, but Congress cannot compel the agencies to agree on how 
to interpret current law through the device of an MOU negotiation. If 
Congress wants to ``resolv[e] conflicts concerning overlapping 
jurisdiction between the two agencies'' it should pass substantive 
legislation to define their respective jurisdictions.
    At this point, it appears that only Congress or the courts can 
define the respective jurisdiction of FERC and the CFTC, the Congress 
through legislation that clarifies jurisdiction, the courts through 
orders interpreting current law. A MOU is no sort of solution to the 
jurisdictional disagreement between the two agencies.
    Question 4. You've testified that forcing trading on exchanges 
would cost hundreds of millions of dollars for the average utility or 
generation company and that the margin and collateral requirements 
would tie up large amounts of cash, creating ``dead'' capital. What 
would the cost impact of CFTC regulation of FTRs and OTC transactions 
be for a utility like Florida Power and Light?
    Answer. If the current legislative proposals were to pass and all 
standardized OTC transactions were required to be traded on exchange or 
cleared, then FPL would be required to post approximately 
$600,000,000\3\ in incremental margin. While FPL is considered a very 
large utility, this number is consistent with other estimates of the 
impact the OTC legislation could have on investor-owned utilities.
---------------------------------------------------------------------------
    \3\ Calculation made as of March 24, 2010.
---------------------------------------------------------------------------
    EEI President Tom Kuhn has stated that the increased costs of 
requiring OTC transactions to be transacted on exchanges would be 
``astronomical--in the neighborhood of hundreds of millions of dollars 
annually for an average utility.''\4\ There are currently approximately 
200 investor-owned utilities in the United States. The total cost to 
the electric utility sector alone would be many billions of dollars.
---------------------------------------------------------------------------
    \4\ See For Utilities, Derivatives is not a Dirty Word, Energy 
Daily, October 7, 2009.
---------------------------------------------------------------------------
    This amount does not include any amounts of incremental collateral 
that would be required to be posted by other energy participants such 
as: (i) non-investor-owned utilities, (ii) other end-users (wholesale 
generators and other non-utility energy consumers), (iii) wholesale 
commercial energy companies, (iv) dealers, (v) speculators, and (vi) 
other energy commodity participants in the natural gas market. The 
overall impact of the OTC legislation would be to cause thousands of 
companies to either (i) raise billions of dollars in additional capital 
for incremental margin, above and beyond what is required in the 
current regulatory construct, or (ii) drop their hedging activities in 
part or in total and take on market risk rather than trying to raise 
capital.
    In this slowly recovering economy, it is difficult to imagine the 
impact on the financial markets as companies try and raise billions of 
dollars within a short regulatorily mandated time period. To make 
matters worse, those entities will have to raise those amounts without 
being able to project a corresponding increase in revenues in order to 
pay back the capital or deliver a return. Additionally, those billions 
of dollars that would then be used for margining will displace capital 
that would have otherwise been used for capital investment projects at 
a time when capital investment is most needed.
    With respect to possible CFTC regulation of FTRs and other RTO/ISO 
products, that is more of a concern for NextEra Energy than it is for 
FPL because FPL is not located in an RTO/ISO. The impact on NextEra 
Energy, which transacts in the RTO/ISOs that sell FTRs, relates more to 
regulatory uncertainty than direct costs. Entry by the CFTC into 
traditionally FERC regulated products will disrupt and bifurcate the 
current unitary regulatory scheme, with such regulatory uncertainty 
resulting in increased compliance and risk mitigation costs for all 
parties involved, and lower prices for renewable energy developers.
    Question 5. Don't regulated utilities use instruments like FTRs to 
keep consumer prices stable? You don't really make any money from 
hedging, do you?
    Answer. Regulated utilities use FTRs to help manage risk. They buy 
FTRs to manage, or hedge, the amount they will have to pay for 
congestion. Without the ability to manage this risk, costs would go up 
and consumers would be subject to the volatility that results from the 
occurrence of transmission congestion.
    The purpose of hedging is not to make money, but instead to lock in 
prices or remove volatility from various commodity inputs used to 
generate or deliver electricity over a certain period of time.
    The way a hedge works is when the value of the underlying commodity 
is up, then the value of the hedge contract is down. And vice versa, 
when the value of the underlying commodity is down, then the value of 
the hedge contract is up. The net result of this is a stable price for 
the hedging utility, which ultimately benefits retail electricity 
consumers.
    Question 6. Why do you believe it's necessary for Congress to 
specify an end-user exemption for both wholesale and retail market 
participants?
    Answer. EEI and EPSA members engage in risk management transactions 
in the OTC derivatives markets to help ensure stable and affordable 
rates for customers in both the wholesale and retail electricity 
markets. As previously noted, the high cash margin requirements of 
clearing would significantly increase transaction costs for our members 
and, ultimately, their wholesale retail customers. In addition, it 
would tie up needed cash at a time when the cost of capital is high, 
access to capital markets is uncertain, and our industry needs to 
invest billions in renewable energy sources and clean energy 
infrastructure. As a result, our more capital-constrained members may 
choose to hedge fewer of their transactions, thereby increasing their 
risks and passing potentially volatile pricing onto wholesale and 
retail customers.
    Response of Joseph T. Kelliher to Question From Senator Stabenow
    Question 1. Please share your views on whether the mandatory 
reporting of energy commodity contracts to regulated swap or derivative 
repositories is a regulatory solution that would meet the public policy 
goals of increasing market transparency, mitigating systemic risk, and 
providing price transparency, without hindering the ability for end-
users to hedge their commercial risk or increasing costs to consumers.
    Answer. EEI and EPSA believe that promoting greater regulatory 
oversight and transparency of OTC derivatives markets through increased 
financial reporting and authority to the CFTC to prevent manipulation 
is a laudable goal of proposed financial reform. This transparency can 
be achieved in a cost-effective way through mechanisms such as 
mandatory reporting requirements and a central data repository, as 
opposed to mandatory clearing for energy. Reporting all OTC 
transactions to a central data repository would provide the CFTC a 
window for the first time into the OTC markets, without hindering the 
ability of end-users to efficiently manage their commercial risk. In 
addition, we support the clearing of standardized derivatives between 
large financial dealers, where appropriate, through regulated central 
counterparties to reduce systemic risk and bring additional 
transparency through information regarding pricing, volume and risk. 
Energy suppliers welcome the increased regulatory oversight and 
reporting through such a central data repository mechanism.
                                 ______
                                 
    Responses of Jon Wellinghoff to Questions From Senator Bingaman
    Question 1. How would CFTC jurisdiction over FTRs affect FERC' s 
overall mission of ensuring just and reasonable rates?
    Answer. CFTC jurisdiction over FTRs could significantly impair 
FERC's ability to ensure just and reasonable rates. FTRs are an 
important tool for protecting customers against the risk of price 
increases for transmission services in RTOs/ISOs. Congress recognized 
the importance of FTRs when it enacted FPA section 217 as part of the 
Energy Policy Act of 2005, requiring FERC to use its authority in a way 
that enables load-serving entities to secure FTRs on a long-term basis 
for long-term power supply arrangements made to meet their customer 
needs. CFTC jurisdiction over FTRs could lead to, e.g., limits on the 
availability of FTRs for load-serving entities and thus less protection 
for their customers against increases in transmission costs.
    Question 2. Chairman Wellinghoff's testimony states that regulatory 
uncertainty could slow investments in renewable resources or smart grid 
technology. Would CFTC regulation of a financial instrument like FTRs 
have such far-reaching impacts? Please explain.
    Answer. Yes, CFTC regulation of FTRs could reduce investment in 
such resources. For example, as indicated in my answer to your Question 
#1, CFTC jurisdiction over FTRs could lead to limits on the 
availability of FTRs for load-serving entities. A load-serving entity 
considering whether to buy long-term power from a proposed wind farm 
would need to consider the expected cost of transmission, particularly 
if the wind farm would be far from the load. FTRs can help ensure that 
the expected transmission costs are unlikely to increase significantly. 
Without the certainty provided by FTRs, the load-serving entity might 
decide to continue buying short-term power and the wind farm thus might 
lack the customer commitment it needs to get financing and begin 
construction.
    Question 3. In his testimony, Vincent Duane from PJM 
Interconnection stated that the FTR is inextricably linked to 
locational priced energy markets. How could FERC and the CFTC fulfill 
their respective missions if they individually regulate, according to 
different standards, two ``inextricably linked'' products?
    Answer. Duplicative regulation of RTO/ISO markets would not be 
workable or wise. As I testified, all elements of RTO/ISO markets are 
approved by FERC, incorporated into FERC-approved tariffs and monitored 
closely by independent market monitors and FERC. CFTC regulation of one 
or more of these elements, such as FTRs, could disrupt the integrated 
functioning of these markets, leading to inefficiencies and higher 
energy costs for consumers.
    Question 4. How would CFTC jurisdiction over FTRs impair FERC' s 
ability to protect against manipulation in the RTO markets?
    Answer. Under the Commodity Exchange Act, the CFTC asserts 
exclusive jurisdiction in the markets they regulate. Were the CFTC to 
acquire exclusive jurisdiction over the FTRs currently traded in RTO/
ISO markets subject to FERC regulation, FERC's authority to prevent and 
punish market manipulation in the RTO markets could be restricted.
    Question 5. Do you believe that an FTR defined by a particular 
source-sink combination is distinct from an FTR with a different 
source-sink combination?
    Answer. Yes. An FTR is a right based on congestion between two 
specific points. An FTR for congestion between Pittsburgh and 
Philadelphia is not fungible with an FTR between Pittsburgh and 
Hagerstown, MD. A loadserving entity seeking to buy power in Pittsburgh 
for delivery to customers in Philadelphia can benefit from an FTR 
between those two points, but not from an FTR for delivery in 
Hagerstown. PJM alone has thousands of such point-to-point combinations 
of FTRs, making them much less fungible than typical futures regulated 
by the CFTC.
    Question 6. Much of the discussion at the hearing focused on FTRs, 
which are available within RTOs and ISO markets. Do you have concerns 
with respect to possible CFTC jurisdiction over products that are 
available outside of RTO and ISO markets?
    Answer. Yes. For example, the definition of ``swaps'' in H.R. 4173 
could be construed to include bilateral capacity contracts. Under this 
type of contract, a load-serving entity can assure its ability to meet 
its customers' needs by buying the right to use certain resources?, a 
power plant's output or a right to demand response) but does not have 
to commit to buy a specific amount of energy at an agreed-upon price. 
In an RTO/ISO market, capacity obligations help ensure that there will 
be enough ``steel in the ground'' and other resources to meet the 
aggregate needs of the market's customers. In bilateral markets, 
capacity contracts can serve the same purpose for an individual 
utility. In both organized markets and bilateral markets, capacity 
contracts can be critical in ensuring that a proposed resource has a 
projected revenue stream sufficient to allow development of the 
resource.
    Responses of Jon Wellinghoff to Questions From Senator Murkowski
    Question 1. Is there currently a regulatory gap we're trying to 
plug for electricity market mechanisms like Financial Transmission 
Rights? Aren't FTRs already regulated by FERC through its review and 
approval of RTO tariffs?
    Answer. There is no regulatory gap. RTOs/ISOs are comprehensively 
regulated by FERC. CFTC regulation of FTRs would not close a regulatory 
gap but would instead impose duplicative and potentially conflicting 
regulation.
    Question 2. According to former FERC Chairman Joe Kelliher, who is 
testifying today on the second panel, energy providers do not pose a 
systemic risk to the broader economy. Instead, the entire commodities 
market is less than I percent of the global OTC derivatives markets, 
and the energy commodity portion is yet a fraction of that one percent.
    Do you agree that these electricity market instruments do not pose 
the kind of systemic risk Congress is trying to address in financial 
reform regulation? Ifso, isn't this a good case for striking a 
reasonable balance?
    Answer. Amidst the recent meltdown of financial markets, 
electricity market instruments regulated by FERC did not at any time 
pose a systemic risk to the national economy. In addition to the 
relatively small size of the markets for the instruments, FERC already 
comprehensively regulates all RTO/ISO rates, terms, and conditions of 
service, including reviewing, approving, and revising credit practices.
    Question 3. There's a concern that under the new financial reform 
legislation the RTOs and ISOs themselves could become subject to the 
CFTC's jurisdiction as ``derivative clearing organizations.'' Is that 
appropriate? If RTOs were subject to the CFTC's exclusive jurisdiction, 
what additional rules and regulations would be required?
    Answer. Regulation of RTOs/ISOs as ``derivative clearing 
organizations (DCOs)'' would be inappropriate because RTOs/ISOs are 
already regulated comprehensively by FERC. CFTC regulation of RTOs/ISOs 
as DCOs could subject them to conflicting requirements or could impair 
FERC's ability to protect consumers from excessive rates.
    A DCO must demonstrate ongoing compliance with various ``core 
principles'' set forth in the Commodity Exchange Act and the CFTC's 
regulations. These core principles are used to evaluate the DCO's 
capabilities in such areas as adequacy of financial resources, risk 
management and settlement processes, and default procedures. The 
differences between DCOs and RTOs/ISOs make it difficult to determine 
the specific requirements the CFTC might impose on RTOs/ISOs.
    Whether the CFTC would, or even could, adopt rules and regulations 
to ``harmonize'' CFTC and FERC regulation of RTO/ISOs in order to 
recognize their unique characteristics and avoid inconsistent 
regulation is unclear.
    Question 4. If RTO products--or the RTOs themselves--became subject 
to the CFTC's exclusive jurisdiction, wouldn't that mean that FERC was 
precluded from fulfilling its mandate that consumer electricity prices 
be just and reasonable?
    Answer. The CFTC asserts that its jurisdiction under the Commodity 
Exchange Act is exclusive. If so, then CFTC regulation of RTO/ISO 
products or of the RTO/ISOs themselves could limit FERC regulation and 
prevent FERC from fulfilling its statutory obligation to ensure just 
and reasonable rates.
    Question 5. As we talk about the problems associated with 
subjecting these transactions to a cash collateral clearing 
requirement, it's easy to forget that transactions like FTRs are 
already subject to credit requirements.

          a. Can you please elaborate on how these credit requirements 
        now work?

    Answer. FTRs provide revenue to the holder of those rights that can 
be used to insure against the costs associated with physical congestion 
on the electric grid. As you note, FTRs are subject to credit 
requirements. Generally speaking, the credit requirements are 
established based on an estimate of the cash flow associated with each 
FTR owned. Practically speaking, this means estimating the revenue for 
each year on a particular path, for example, between a location in 
central Pennsylvania and a location in southern New Jersey, to assess 
the risk that the FTRs, due to changes on the electric system, may not 
yield a positive cash flow. In these instances, the party owning the 
FTR will have to ``pay'' rather than receive payment. The risk being 
assessed is for non-payment. Based on this analysis, credit is extended 
based on factors relating to the risk profile of the particular market 
participant. The market participant currently can post collateral to 
meet this credit requirement using a combination of secured credit 
(e.g., cash or letters of credit) and unsecured credit (e.g., parent 
company guarantee). The RTO/ISO markets generally allow a certain 
amount of unsecured credit for more creditworthy entities although some 
have moved to prohibit unsecured credit in the FTR market and the 
Commission's recent proposed rules on credit would remove unsecured 
credit in all FTR markets.

          b. Isn't FERC currently considering whether to increase these 
        credit requirements? Aren't you also examining whether to 
        require additional information regarding the reselling of FTRs 
        in secondary markets?

    Answer. FERC has been actively looking at improving credit 
management in the RTO/ISO markets since their inception and has made 
several modifications. FERC addressed the issue generically in 2004 
with a Policy Statement that spurred reforms on a case-by-case basis. 
In light of the financial crisis, the Commission in January 2009 held a 
technical conference to examine the effects of the crisis on wholesale 
electric markets. More recently, the Commission issued proposed rules 
on credit reforms (in Docket No. RM10-13-000) at its January 2010 
meeting. The proposed rules would eliminate any use of unsecured credit 
in the FTR auctions. The proposed rules also would require shorter 
settlement cycles in all transactions, require minimum creditworthiness 
criteria for market participation, clarify when a market administrator 
may invoke ``material adverse change'' to require additional security, 
and shorten the grace period for curing collateral posting 
requirements.
    Further, the Commission has opened an inquiry in Docket No. RM10-
12-000 into whether to require quarterly reporting of all bilateral 
(secondary) sales of FTRs. Reporting such sales of FTRs could increase 
the transparency of the FTR markets.

          c. Finally, aren't public power entities often legally 
        prohibited from providing cash as collateral?

    Answer. In the RTO/ISO markets, secured credit is obtained through 
either a posting of cash as security or a letter of credit from a 
creditworthy bank with offices in the United States. Traditionally, 
public power entities have often not been required to post collateral. 
As mentioned in response to the previous question, the Commission's 
proposed rule would eliminate the ability to post unsecured credit for 
FTRs, though we seek comments on whether some market participants, like 
public power entities, should be exempt from the new proposed rule.
    Question 6. Are FTRs ``standardized'' contracts or are these 
customized products that are not fungible?
    Answer. Each FTR is path-specific and its value reflects the 
difference between the price of power at two particular locations on 
the grid. There are thousands of paths in each market, each with its 
own unique risk profile. FTRs are not fungible in the way that 
instruments traded on NYMEX are fungible. Fungibility allows traders to 
create new contracts and trade in and out of existing ones because each 
new contract is exactly the same. Because only the RTO/ISO issues FTRs, 
and does so only in a manner consistent with the physical constraints 
on the system during defined auction periods, individual traders cannot 
decide to create new FTRs outside of the RTO auctions.
    Responses of Jon Wellinghoff to Questions From Senator Stabenow
    Question 1. The House bill directs FERC and the CFTC to create 
memorandum of understanding for the process of sharing information to 
avoid duplicative regulation. It also gives the CFTC the authority to 
exempt FTRs from its regulation only if the CFTC determines that the 
``exemption would be consistent with public interest.'' It directs the 
CFTC to ``not unreasonably deny any request made by the Federal Energy 
Regulatory Commission for such an exemption.''
    If this provision were to pass into law and the agencies could not 
agree on an MOU in a timely manner or a lack of clarity in the 
jurisdiction remained, I am concerned this may affect energy prices. In 
a state like Michigan our manufacturers and households cannot afford 
undue burdens like this and I am worried uncertainty leads to an 
increase in prices. Do you agree with this and if so do you think that 
keeping energy costs low via energy markets qualifies as within the 
``public interest''?
    Answer. Lack of clarity about who regulates the energy markets can 
reduce the willingness of investors to support new energy 
infrastructure or increase the return on capital they seek for making 
investments in the face of such uncertainty. Both of these outcomes 
could hurt consumers. Legislation clearly preserving FERC's 
jurisdiction would avoid this uncertainty, and is far preferable to a 
statutory requirement that two agencies resolve the issue by agreement. 
Furthermore, while the Federal Power Act's concept of ``public 
interest'' clearly includes keeping energy costs reasonable for 
consumers, the Commodity Exchange Act's reference to ``public 
interest'' is not parallel. The Commodity Exchange Act focuses on 
whether markets operate fairly and orderly but, unlike the Federal 
Power Act, contains no obligation to consider the reasonableness of 
rates to customers.
    Question 2. During his testimony, Mr. Gensler pointed to the 
Amaranth case as a good example of the two agencies working together. 
Please describe the situation, each agency's role and if there is 
anything you would do differently.
    Answer. Shortly after FERC first observed the anomalous trading 
activity by Amaranth and initiated its investigation, it informed the 
CFTC. Thereafter, the agencies worked well together in evaluating and 
investigating the matter. Each agency brought a case against Amaranth, 
though there were substantive differences in the two cases. FERC has a 
Memorandum of Understanding with the CFTC under which FERC requests, 
through the CFTC, data and information from the CFTCdesignated 
``Contract Markets'' such as NYMEX. While FERC retains the ability to 
acquire such information directly, through informal request or 
Commission subpoena, FERC has respected the role of the CFTC as the 
exclusive day-to-day regulator of the market and has used this process 
consistently even though it is not as efficient as seeking the 
information directly. The CFTC did take a position in the courts that 
FERC did not have jurisdiction over an Amaranth-type case. FERC 
strongly disagrees with that position, and depending on how the cases 
progress, the courts may resolve that matter.
    Question 3. If the CFTC determines that FTRs are futures contracts 
how would that change your regulation of the market? Are there areas 
where you see regulation of the market could be improved? If so, is it 
possible for FERC to address them? Would legislation be required?
    Answer. If the CFTC determines that FTRs are futures contracts, the 
CFTC would then decide whether to impose its regulatory requirements on 
FTRs or exempt them from CFTC regulation. If the former, the CFTC would 
assert that its jurisdiction is exclusive, and FERC could be precluded 
from regulating FTRs.
    FERC considers on an ongoing basis whether improvements are 
warranted in RTO/ISO markets. For example, two months ago, FERC 
proposed (in Docket No. RM10-13-000) strengthening the credit 
requirements in RTO/ISO markets. FERC will consider all comments 
received on this proposal before taking final action. At the same time, 
FERC opened an inquiry in Docket No. RM10-12-000 on whether to require 
comprehensive reporting of bilateral (secondary) sales of FTRs. FERC 
has comprehensive authority to regulate the rates, terms and conditions 
of RTO/ISO markets, and does not see a need for additional legislation, 
except for the purpose of preserving FERC's jurisdiction.
    Question 4. Please share your views on whether the mandatory 
reporting of energy commodity contracts to regulated swap or derivative 
repositories is a regulatory solution that would meet the public policy 
goals of increasing market transparency, mitigating systemic risk, and 
providing price transparency, without hindering the ability for end-
users to hedge their commercial risk or increasing costs to consumers.
    Answer. I do not have a position on the mandatory reporting of 
energy commodity contracts to regulated swap or derivative 
repositories, but FERC has imposed extensive reporting requirements in 
the wholesale power markets. FERC currently requires all companies 
authorized to sell physical power under its jurisdiction to report 
their sales in detail on a quarterly basis. These reports include 
counterparty information, price, quantity and location, and FERC makes 
this information publicly available. FERC has adopted this requirement 
to ensure that the public has access to the rates charged by power 
sellers in compliance with the Federal Power Act and as a mechanism to 
aid transparency in furtherance of the Commission's statutory mission 
to ensure just and reasonable rates.
                                 ______
                                 
   Response of Michael W. Henderson to Question From Senator Bingaman
    Question 1a. Your testimony notes that the Southwest Power Pool 
(SPP) is ``currently evaluating and designing how it will develop an 
FTR market,'' which is one of many possible changes to the SPP market. 
What is driving SPP and its market participants to evaluate changes to 
its current market design?
    Answer. The desire of SPP's members to implement a day-ahead energy 
and ancillary services market is primarily driven to realize an annual 
savings of one hundred million dollars ($100,000,000) identified in a 
cost/benefit study.
    Question 1b. Has uncertainty surrounding regulation of FTRs 
influenced that evaluation in any way? If yes, how?
    Answer. Our evaluation thus far has assumed FTRs will continue to 
be regulated by FERC as a cost allocation vehicle not as a separate 
market commodity. If financial reform legislation were to create 
uncertainty, the stakeholders in SPP would have to reconsider whether 
the move to an FTR market still provided consumers with net benefits. 
In other words, the uncertainty could potentially deny consumers in SPP 
the opportunity to save $100 million.
 Responses of Michael W. Henderson to Questions From Senator Murkowski
    Question 1a. Is there currently a regulatory gap we're trying to 
plug for electric market mechanisms like Financial Transmission Rights?
    Answer. No, in my opinion, there is no regulatory gap for those 
mechanisms. Such mechanisms, like congestion rights, are an inherent 
part of the cost of wholesale electric sales and transmission service 
regulated by FERC.
    Question 1b. Aren't FTRs already regulated by FERC through its 
review and approval of RTO tariffs?
    Answer. Yes.
    Question 2. Why can't utilities clear their derivative transactions 
on exchanges like other standardized commodities?
    Answer. FTRs are not ``standardized commodities''. FTRs are unique 
and noninterchangeable congestion reservation rights used by FERC to 
allocate cost among transmission users. Many of the other hedging 
transactions used by cooperatives are similarly difficult to treat as 
``standardized commodities.'' They are used to provide carefully 
tailored hedges for physical transactions that provide for delivery of 
different volumes of energy for each of the 8760 hours of the year at 
thousands of distinct delivery points. Even those hedging transactions 
that might be susceptible to standardization are currently being traded 
between sophisticated counterparties with individualized credit 
requirements that recognize the different business structures, levels 
of liquidity, and sources of security specific to different electric 
utilities. Mandatory clearing on exchanges would force those ``round'' 
end-user transactions into ``square'' holes designed for financial 
counterparties. Without providing the markets any greater protection, 
such an approach could inevitably increase the cost of hedging for 
utilities and thus raise either the cost of power or the volatility of 
prices for retail electric consumers.
    Question 3. You testified that the cost for the Arkansas Electric 
Cooperative Corporation of providing transmission service to rural 
Arkansans increased by over 60% from 2004 to 2009--that's about a 10% 
increase per year. Would these costs have been even higher without the 
use of hedging instruments like Financial Transmission Rights (FTR) and 
Congestion Revenue Rights (CRR)?
    Answer. FTRs and CRRs are not currently part of the SPP market. 
Congestion costs are currently part of the transmission tariffs set by 
FERC. If FTRs/CRRs are introduced in the SPP as a separate commodity, 
they should only serve to attempt to fine tune the allocation of 
congestion cost among users. But, as noted above, studies indicate 
that, collectively, all consumers within the SPP footprint could save 
as much as $100 B if the RTO develops FTR markets. Those savings are at 
risk if financial reform legislation creates regulatory uncertainty by 
imposing duplicative layers of regulation on those markets.
    Question 4a. What would CFTC regulation of these financial products 
like FTRs and CRRs mean to your consumers?
    Answer. First, if financial reform legislation imposes duplicative 
layers of regulation on FTRs and FTR markets, the SPP might choose not 
to form those markets, denying consumer's significant potential 
savings. If the SPP does establish the FTR markets and they are 
regulated by both the FERC and the CFTC, there could be two different 
regulators defining what an FTR `is,'' who can trade in FTRs, how they 
are traded, and what the credit requirements are for trading the FTRs. 
Those rules could conflict, raising the specter that a utility that 
complies with its FERC tariff could be in violation of CFTC regulations 
and vice versa. That uncertainty will make it extremely different for 
utilities to use FTRs to hedge their risks in the SPP market. Moreover, 
FERC can currently take all transmission costs into consideration when 
setting transmission tariffs. If a portion of transmission costs are 
regulated outside of FERC (such as by the CFTC), the opportunity for 
financial and non-utility entities to extract value or inflict 
additional cost to transmission users could exist. Regulation by CFTC 
could open FTRs and CRRs values to more volatility and resulting in 
less stable transmission cost. More volatile cost generally will result 
in more volatile financial results and ultimately more expensive 
capital cost as well as incurring duplicative regulatory costs for the 
transmission users.
    Question 4b. Would the costs associated with clearing prohibit the 
use of these hedging instruments, thereby leaving consumers exposed to 
volatile prices, or would you simply be forced to pass on the increased 
costs to the end-user?
    Answer. The cost of clearing would not technically prohibit the use 
of these hedging instruments as long as the costs are included in FERC 
approved tariffs. However, as an electric cooperative, any additional 
costs are absorbed by our member consumers. Thus we face a Hobson's 
choice. We must either charge our customers more for power to cover the 
higher cost of hedging, or if those added costs are greater than the 
value of the hedge, then we will be unable to hedge our market risks 
and will instead expose our consumers to much greater price volatility.
    Question 4c. What are the problems associated with cash collateral 
requirements?
    Answer. The two primary problems with collateral calls are the cost 
of providing a credit facility and the availability of a credit 
facility. If the SPP used FTRs and CRRs during the last quarter of 
2008, AECC would have had to pay large fees for a credit facility if it 
could even find a financial institution that could provide one. These 
additional costs are borne by AECC's rural member consumers with no 
service benefit.
    Question 5. You noted in your testimony that all components of 
transmission costs should be regulated by a single entity. What are the 
practical problems of having two federal regulators?
    Answer. Multiple regulators require duplicative compliance and 
reporting by market participants. Duplicative compliance efforts will 
drive up the cost for transmission users. FERC as regulator of the 
physical transmission service would not be in a position to set a 
tariff to include the market losses or gains incurred from transactions 
in a financial market. Different objectives of multiple regulators can 
result in conflicting rules making compliance difficult or impossible 
to attain and potentially subjecting the market participant to 
penalties from one regulator merely because they complied with the 
rules imposed by the other regulator.
    Question 6. Do you believe that advanced power sales should be 
categorized as futures transaction, making them subject to the CFTC's 
exclusive jurisdiction?
    Answer. No. Advanced power sales are not commodities in my opinion. 
A significant number of committed transactions in many markets take 
place on an advance basis. Advanced power sales should be viewed in a 
like manner as transactions for non-refundable hotel reservations or 
airline tickets purchased days before actual travel or advanced 
purchase of entertainment tickets before the event.
    In the 2005 Energy Policy Act (EPAct), Congress recognized the need 
for load serving entities to plan long-term to meet the needs of our 
consumers. Rather than providing for transmission rights to be treated 
as a traditional commodity, Congress required in new Federal Power Act 
(FPA) sec. 217(b)(4) that FERC exercise its authority under the FPA to 
ensure that load serving entities (like electric cooperatives) have 
access to the long-term transmission rights they need to meet the long 
term needs of their consumers. Congress recognized in this section that 
the electric utility industry is a capital intensive industry in which 
we rely on generation and transmission infrastructure that can take 30 
years to pay off and that can be useful for another 40 years after 
that. Congress understood when they drafted EPAct that we cannot plan, 
finance, build, and maintain that infrastructure based entirely on spot 
market purchases and sales. Instead, we must contract for both power 
resources and the transmission capacity needed to deliver that power to 
load months, years, and even decades ahead. Those contracts are 
supported financially by the legal obligation of millions of retail 
consumers to pay for the power that they use to heat their homes, run 
their production facilities, and pump water to irrigate their crops. 
EPAct is consistent with the federal government's long-standing 
position that electricity is as an essential service imbued with the 
public interest rather than as a commodity like soybeans or pork 
bellies. That is why the physical market for electricity has long been 
closely regulated by economic regulators, including the Federal Power 
Commission and its successor the FERC and state PUCs, rather than the 
CFTC.
                                 ______
                                 
      Responses of Gary Gensler to Questions From Senator Bingaman
    Question 1. The CFTC is currently examining whether Financial 
Transmission Rights (FTRs) should be considered ``futures'' under the 
Commodities and Exchange Act. Is the CFTC currently examining any other 
FERC-approved instruments or products that are available pursuant to 
Regional Transmission Organization (RTO) or Independent System Operator 
(ISO) tariffs? If so, which instruments or products and why?
    Answer. The CFTC has not taken any action to regulate the FTR 
market which is currently regulated by the Federal Energy Regulatory 
Commission (FERC). Additionally, the CFTC is not seeking to regulate 
other current RTO products.
    In 2000, PJM Interconnection, LLC contacted staff of the Commodity 
Futures Trading Commission (CFTC) in regard to a possible exemption 
from the Commodity Exchange Act (CEA) for PJM's FTR market due to 
similarities between FTRs and futures contracts. In addition, some 
information has been supplied by PJM to the CFTC staff in the 
intervening years. In order to address potential concerns with respect 
to the authorities of the two agencies, section 3009 of the House 
passed version of H.R. 4173 requires cooperation between them. Section 
3009 specifies:

    SEC. 3009. MEMORANDUM.

          (a)(1) The Commodity Futures Trading Commission and the 
        Federal Energy Regulatory Commission shall, not later than 180 
        days after the date of the enactment of this section, negotiate 
        a memorandum of understanding to establish procedures for--

                  (A) applying their respective authorities in a manner 
                so as to ensure effective and efficient regulation in 
                the public interest;
                  (B) resolving conflicts concerning overlapping 
                jurisdiction between the two agencies; and
                  (C) avoiding, to the extent possible, conflicting or 
                duplicative regulation.

          (2) Such memorandum and any subsequent amendments to the 
        memorandum shall be promptly submitted to the appropriate 
        committees of Congress.
          (b) The Commodity Futures Trading Commission and the Federal 
        Energy Regulatory Commission shall, not later than 180 days 
        after the date of the enactment of this section, negotiate a 
        memorandum of understanding to share information that may be 
        requested where either Commission is conducting an 
        investigation into potential manipulation, fraud, or market 
        power abuse in markets subject to such Commission's regulation 
        or oversight. Shared information shall remain subject to the 
        same restrictions on disclosure applicable to the Commission 
        initially holding the information.

    Question 2. Does the CFTC believe it should be regulating FERC-
approved instruments or products offered by public utilities that are 
not members of an RTO or ISO? If so, which instruments or products and 
why?
    Answer. The CFTC is not reviewing FERC-approved instruments or 
products that are offered by public utilities that are not members of 
an RTO or ISO.
    Question 3. Does the definition of swaps or futures contained in 
H.R. 4173, if enacted, require the CFTC to regulate any FERC-approved 
instruments or products other than FTRs?
    Answer. H.R. 4173, the Wall Street Reform and Consumer Protection 
Act of 2009, provides for the regulation of the previously unregulated 
Over-The-Counter (OTC) derivatives market including establishing 
requirements for OTC dealers, requiring centralized clearing where 
appropriate and providing for increased transparency of the OTC market. 
Section 3009 of H.R. 4173 as passed by the House, preserves the 
jurisdiction of both FERC and the CFTC.
    Question 4. As was discussed at the March 9th hearing, FERC and the 
CFTC are charged with different missions. The standard the CFTC applies 
in its regulation addresses the orderly functioning of markets that are 
not manipulated. Unlike FERC, the CFTC does not have the authority to 
examine the reasonableness of rates. How would the CFTC apply its 
mission to the markets for FTRs or other products offered pursuant to 
RTO and ISO tariffs? Has the CFTC analyzed how a shift in the 
regulatory objective would affect FTR markets and how that could 
ultimately affect ratepayers?
    Answer. The CFTC's mission is to protect market users and the 
public from fraud, manipulation, and abusive practices related to the 
sale of commodity and financial futures and options, and to foster 
open, competitive, and financially sound futures and option markets. In 
pursuing its mission the CFTC routinely cooperates with other agencies 
that have jurisdiction over cash markets for the underlying 
commodities. Such agencies include the Department of Agriculture, the 
Securities and Exchange Commission, the Department of the Treasury, the 
Federal Reserve Board, the Department of Energy, and FERC. In fact, the 
CFTC and the FERC currently have a formal memorandum of understanding 
(MOU) regarding the sharing of information and the confidential 
treatment of proprietary energy trading data.
    The CFTC recognizes FERC's authority and responsibility to assure 
that consumers pay just and reasonable electricity rates and has no 
intention of infringing on FERC's rate setting role.
    Question 5. In his testimony, Vincent Duane from PJM 
interconnection stated that the FTR is inextricably linked to 
locational priced energy markets. How could FERC and the CFTC fulfill 
their respective missions if they individually regulate, according to 
different standards, two ``inextricably linked'' products?
    Answer. Though the CFTC has exclusive jurisdiction over the futures 
markets, it coexists and routinely cooperates with other agencies that 
have jurisdiction over cash markets for underlying commodities. While 
the missions of the two agencies are not identical, any differences can 
be resolved The two agencies currently have Memoranda of Understanding 
in place to formalize our relationship. In addition, Congress has 
provided the CFTC with broad exemptive authority which can be used to 
provide regulatory clarity where appropriate and in the public 
interest.
    Question 6. The CFTC is working with Congress to bring 
comprehensive regulation to the over-the-counter derivatives 
marketplace. Chairman Gensler has stated that regulatory reform should 
ensure that clearable swaps are submitted to and settled through 
central clearinghouses. How does the CFTC define ``clearable swaps''?
    Answer. Clearable swaps are those sufficiently standardized to 
allow clearing. The House of Representatives addressed the issue of 
which swaps should be cleared in Section 3103(j) of H.R. 4173, the Wall 
Street Reform and Consumer Protection Act of 2009, by providing that, 
in general, a swap should be cleared if a clearing house accepts it for 
clearing and the CFTC has determined that the swap is required to 
cleared, by taking into account:

          `(I) The existence of significant outstanding notional 
        exposures, trading liquidity and adequate pricing data.
          `(II) The availability of rule framework, capacity, 
        operational expertise and resources, and credit support 
        infrastructure to clear the contract on terms that are 
        consistent with the material terms and trading conventions on 
        which the contract is then traded.
          `(III) The effect on the mitigation of systemic risk, taking 
        into account the size of the market for such contract and the 
        resources of the derivatives clearing organization available to 
        clear the contract.
          `(IV) The effect on competition, including appropriate fees 
        and charges applied to clearing.
          `(V) The existence of reasonable legal certainty in the event 
        of the insolvency of the relevant derivatives clearing 
        organization or 1 or more of its clearing members with regard 
        to the treatment of customer and swap counterparty positions, 
        funds, and property.

    The Senate-passed bill includes similar standards.
    Question 7. There are several key attributes of FTRs:

          a. The supply of FTRs is finite, limited by the physical 
        characteristics of the transmission system.
          b. Before any FTRs are sold in an auction, RTOs and ISOs 
        allocate a certain number of FTRs to load serving entities 
        (LSEs)
          c. The period of time between auctions can be quite long

    Do these attributes, individually or in some combination, 
distinguish FTR markets from commodity markets currently regulated by 
the CFTC? If yes, can the CFTC identify how it might regulate markets 
with such attributes? Is the CFTC prepared to regulate such markets?
    Answer. While each futures market the CFTC regulates and its 
underlying cash market are in some way distinctive, the CFTC has 
neither taken a position on how FTRs should be regulated, nor sought to 
regulate them.
    Question 8. Given the long periods of time between auctions for 
FTRs, how could any clearing entity mark positions to a reliable and 
transparent market price?
    Answer. In a response to an invitation from FERC Chairman 
Wellinghoff to the CFTC to comment on the FERC Notice of Proposed 
Rulemaking on Credit Reforms in Organized Wholesale Electric Markets 
(FERC NPRM), on March 29, 2010, the CFTC staff of its Division of 
Clearing and Intermediary Oversight addressed this issue in footnote 
11:

          In general, commodity futures and options markets operate 
        continuously, thus providing reliable pricing for frequent 
        settlements. Staff understands that FTR markets operate less 
        continuously, with auctions occurring at, e.g., monthly 
        intervals. Staff believes that it would be best practice for 
        each RTO or ISO to operate daily FTR auctions, which would 
        produce the most accurate pricing. However, staff understands 
        that, due to the nodal nature of FTRs, such daily auctions may 
        be subject to liquidity challenges. [citation omitted] 
        Therefore, staff recommends that each RTO or ISO be permitted 
        to mark FTR positions to models, provided that such models are 
        externally validated. Another alternative may be for each RTO 
        or ISO to mark FTR positions to quotes from the secondary 
        (i.e., bilateral) FTR markets. However, the feasibility of such 
        alternative depends on the depth and liquidity of such 
        secondary FTR markets.

    Question 9. Individual FTRs are defined according to two specific 
points on the transmission system: a source point (e.g. generator) and 
a sink point (e.g. load location). According to PJM there over 60 
million possible transmission paths that could define individual FTRs. 
Does the CFTC believe that an FTR defined by a particular source-sink 
combination is distinct from an FTR with a different source-sink 
combination, assuming they cover identical periods of time? Are these 
FTRs fungible (e.g., could they be netted against one another in the 
clearing process)? Why?
    Answer. The CFTC has not taken a position on the defining 
characteristics of FTRs or whether or not one FTR position could be 
used to offset another.
    Question 10. Has the CFTC analyzed how ratepayers would be affected 
if 1) FTRs with different source-sink combinations were deemed to be 
distinct and 2) FTR markets were subject to clearing requirements?
    Answer. No.
    Question 11. In January of this year, FERC issued a Notice of 
Proposed Rulemaking that would require participants to submit cash 
collateral to the RTOs to participate in the FTR markets. How does this 
proposal compare to the regulatory regime that would result from the 
CFTC finding that FTRs are subject to its jurisdiction?
    Answer. The CFTC has not considered what type of regulatory regime 
would result from a CFTC finding that FTRs are subject to its 
jurisdiction as the CFTC has not taken a position on whether FTRs are 
subject to its jurisdiction. As stated in the answer to question number 
9, Chairman Wellinghoff invited the CFTC to comment on the FERC NPRM 
and staff of the CFTC's Division of Clearing and Intermediary Oversight 
did so on March 29, 2010. A copy of the comment letter is included is 
an attachment.
    As page 4 of the comment letter states, ``[s]taff fully supports 
FERC's proposals to require each RTO or ISO.to eliminate unsecured 
credit in FTR markets. . .''.
     Responses of Gary Gensler to Questions From Senator Murkowski
    Question 1. Is there currently a regulatory gap we're trying to 
plug for electricity market mechanisms like Financial Transmission 
Rights? Aren't FTRs already regulated by FERC through its review and 
approval of RTO tariffs?
    Answer. In 2008 the financial regulatory system failed the American 
public. We must now do all we can to ensure that it does not happen 
again. While more than a year has passed and the system appears to have 
stabilized, we cannot relent in our mission to vigorously address 
weaknesses and gaps in our regulatory structure. One of the most 
significant gaps is the lack of oversight of the OTC derivatives 
market. As I stated in my written testimony, ``wholesale statutory 
exemptions preventing the application of any CFTC regulation--including 
the regulation of futures contracts, swaps contracts, clearing or 
exchange trading--for any instrument or market that is regulated by the 
FERC undermine the effectiveness of comprehensive reform. Congress 
should avoid any bright-line exemption that runs the risk of creating 
the next regulatory loophole.''...
    ``History demonstrates that bright-line statutory exemptions or 
exclusions granted at one point in time can have unintended 
consequences and often fail to adequately account for subsequent 
developments. Markets evolve rapidly. What may seem like a carefully 
crafted exclusion today can become a significant and problem-filled 
loophole tomorrow. When the Enron loophole was included in statute in 
2000, electronic trading facilities were in their infancy. By the time 
Congress addressed the loophole as part of the Farm Bill in 2008, the 
unregulated electronic trading of natural gas swaps was on a par with 
the trading of natural gas futures on the regulated market.'' Congress 
can assure comprehensive regulation of the derivative market and should 
address concerns of overlap by providing regulatory agencies with 
flexibility such as implimentive authority.
    Question 2. According to former FERC Chairman Joe Kelliher, who is 
testifying today on the second panel, energy providers do not pose a 
systemic risk to the broader economy. Instead, the entire commodities 
market is less than 1 percent of the global OTC derivatives markets, 
and the energy commodity portion is yet a fraction of that one percent.
    Do you agree that these electricity market instruments do not pose 
the kind of systemic risk Congress is trying to address in financial 
reform regulation? If so, isn't this a good case for striking a 
reasonable balance.
    Answer. As mentioned above, the CFTC has neither taken a position 
on how FTRs should be regulated, nor sought to regulate them. I do not 
believe it is appropriate to carve out from regulation any particular 
financial instrument. The agencies can strike a reasonable balance and 
modify that balance to take into account evolving changes in the 
marketplace without requiring Congress to adopt changing legislation 
over the years. In fact, Congress has provided the agencies with 
adequate tools to work cooperatively. The CEA provides the CFTC with 
authority to exempt instruments and markets from its regulations if it 
is determined to be in the public interest to do so. OTC derivatives 
reform should extend this exemptive authority with the CFTC's oversight 
of the swaps market. Any potential overlaps in oversight can be 
addressed through memoranda of understanding and other cooperative 
working relationships between the two agencies. Pending legislation 
also should maintain the FERC's anti-manipulation enforcement 
authorities under Section 222 of the Federal Power Act and Section 4A 
of the Natural Gas Act.
    Question 3. There's a concern that under the new financial reform 
legislation the RTOs and ISOs themselves could become subject to the 
CFTC's jurisdiction as ``derivative clearing organizations.'' Is that 
appropriate? If RTOs were subject to the CFTC's exclusive jurisdiction, 
what additional rules and regulations would be required?
    Answer. The CFTC has not taken a position on whether RTOs and ISOs 
are or would become subject to CFTC jurisdiction as derivatives 
clearing organizations. As passed by the House, Section 3102(a) of H.R. 
4173, the Wall Street Reform and Consumer Protection Act of 2009, fully 
preserves FERC's authority over RTOs and ISOs:

          `(H)(i) Nothing in this Act shall limit or affect any 
        statutory authority of the Federal Energy Regulatory Commission 
        with respect to an agreement, contract, or transaction that 
        is--

                  `(I) not executed, traded, or cleared on a registered 
                entity or trading facility; and
                  `(II) entered into pursuant to a tariff or rate 
                schedule approved by the Federal Energy Regulatory 
                Commission.

    Question 4. Chairman Gensler, you testified that standardized 
derivatives should be cleared and exchange traded. Do you believe that 
FTRs traded through an RTO are ``standardized''? If you do, does this 
mean that in your opinion the CFTC should determine that FTRs are 
``requirements to be cleared''? Pursuant to the House passed 
legislation, H.R. 4173, would you consider FTRs to be ``swaps''?
    Answer. The CFTC has not taken a position on whether FTRs are swaps 
under H.R. 4173, the Wall Street Reform and Consumer Protection Act of 
2009. Additionally, The CFTC has not taken a position on the defining 
characteristics of FTRs.
    Question 5. Do you believe that advanced sales of power--whether in 
the organized wholesale markets or the traditional bilateral ones--are 
``futures'' transactions that would subject them to the CFTC's 
exclusive jurisdiction? Would you consider them ``swaps''?
    Answer. Forward contracts, that is, cash contracts where shipment 
or delivery is deferred for commercial convenience or necessity, have 
been excluded from federal regulation of futures transactions since 
1922.
    Question 6. Please describe the additional rules and regulations 
that will result from the CFTC's oversight of FTR products--in 
particular the cash collateral and margin requirements. Has the CFTC 
examined the impact on customers of requiring energy end-users to clear 
OTC derivatives?
    Answer. As mentioned above, the CFTC has neither taken a position 
on how FTRs should be regulated, nor sought to regulate them. The CFTC 
staff has not examined the impact on customers of requiring energy end-
users, or other end-users, to clear OTC derivatives. Central clearing 
of as many OTC derivatives as possible is desirable to improve 
financial integrity and inter-connectiveness of the OTC market.
    With respect to OTC derivatives, as stated in my written testimony:

          ``Some corporations have expressed concerns regarding posting 
        the collateral required to clear a contract. While this is a 
        legitimate public policy debate, I believe that the public is 
        best served by lowering risk to the system as a whole. An 
        exemption from clearing for this large class of transactions 
        would allow dealers to keep significant risk on their books--
        risk that could reverberate throughout the entire financial 
        system if a bank fails. Further, it is not clear that posting 
        collateral necessarily increases costs to end users, since 
        dealers charge corporations for credit extensions when the 
        corporations do not post margin.'' I would further add that, 
        although it is not certain that posting collateral would 
        necessarily increase costs to end users, it is certain that 
        requiring dealers to post collateral would protect end users 
        and their customers. Bringing OTC transactions into clearing 
        would impose collateral requirements on dealers. Credit 
        requirements are used to protect participants from the effects 
        of defaults by other participants.

    Question 7. Does the CFTC view electricity as a necessary 
commodity?
    Answer. Yes.
    Question 8. Shouldn't FERC's regulatory priorities be afforded some 
deference?
    Answer. Yes. The FERC oversees important aspects of the energy 
markets, including monitoring natural gas pipelines and regulating for 
just and reasonable wholesale electricity rates and interstate 
transmission service of electricity, while the CFTC oversees futures 
markets and certain electronic trading facilities for natural gas and 
electricity derivatives. As stated above in answer to question two, the 
Congress has provided the CFTC and the FERC with the authorities 
necessary to coexist and cooperate in the public interest and both 
agencies have done so over the years. Further directives to the two 
agencies are contained in Section 3009 of H.R. 4173, the Wall Street 
Reform and Consumer Protection Act of 2009, as passed by the House of 
Representatives.
    Question 9. Does the CFTC believe it has the authority to regulate 
wholesale electricity markets and transactions that are already subject 
to a FERC-approved tariff?
    Answer. The CFTC oversees the futures markets in electricity and 
natural gas whether they trade on NYMEX or the Nodal Exchange or the 
IntercontinentalExchange. We regulate futures exchanges, 
clearinghouses, other intermediaries to ensure the markets work 
efficiently, there's integrity to markets and they're free of fraud, 
manipulation.
      Responses of Gary Gensler to Questions From Senator Stabenow
    Question 1. The House bill directs FERC and the CFTC to create 
memorandum of understanding for the process of sharing information to 
avoid duplicative regulation. It also gives the CFTC the authority to 
exempt FTRs from its regulation only if the CFTC determines that the 
``exemption would be consistent with public interest.'' It directs the 
CFTC to ``not unreasonably deny any request made by the Federal Energy 
Regulatory Commission for such an exemption.''
    Answer. Yes, that is correct and the CFTC historically as the 
derivatives regulator has cooperated with other agencies with 
jurisdiction over underlying commodities.
    Question 2. If this provision were to pass into law and the 
agencies could not agree on an MOU in a timely manner or a lack of 
clarity in the jurisdiction remained, I am concerned this may affect 
energy prices. In a state like Michigan our manufacturers and 
households cannot afford undue burdens like this and I am worried 
uncertainty leads to an increase in prices. Do you agree with this and 
if so do you think that keeping energy costs low via energy markets 
qualifies as within the ``public interest''?
    Answer. I believe the two agencies will be able to reach an 
agreement in a timely manner Congress directed that the CFTC and the 
FERC complete an earlier MOU on the sharing of confidential information 
within six months of the Energy Policy Act's August 8, 2005, effective 
date. That MOU was signed on October 12, 2005--well in advance of the 
deadline. At the time, the CFTC Chairman said, ``This MOU will result 
in a more effective and efficient working relationship with FERC. It 
will enable both agencies to work actively to assure the price 
integrity of the markets for natural gas and other energy products.'' 
The FERC Chairman said, ``The fact that we have this agreement with the 
CFTC four months ahead of schedule is a clear sign of the enhanced 
cooperation and coordination between our two agencies. This means the 
agreement is in place well before the winter heating season, when 
already stressed energy prices will require vigilance. This agreement 
will contribute to better coordination of enforcement.''
    Question 3. During his testimony, Mr. Gensler pointed to the 
Amaranth case as a good example of the two agencies working together. 
Please describe the situation, each agency's role and if there is 
anything you would do differently.
    Answer. The CFTC believes it appropriate to refrain from commenting 
in detail on the Amaranth matter while it is still being litigated by 
FERC.
    Question 4. Please share your views on whether the mandatory 
reporting of energy commodity contracts to regulated swap or derivative 
repositories is a regulatory solution that would meet the public policy 
goals of increasing market transparency, mitigating systemic risk, and 
providing price transparency, without hindering the ability for end-
users to hedge their commercial risk or increasing costs to consumers.
    Answer. Bringing transparency to the over-the-counter derivatives 
marketplace would lower costs by implementing a more efficient and 
publicly available price discovery process. Trade reporting is an 
important first step toward an increase in transparency. To promote 
public transparency, standard over-the-counter derivatives should be 
traded on exchanges or other trading platforms. The more transparent a 
marketplace, the more liquid it is, the more competitive it is, then 
the lower will be the costs for companies that use derivatives to hedge 
risk. Transparency brings better pricing and lowers risk for all 
parties to a derivatives transaction. During the financial crisis, Wall 
Street and the Federal Government had no price reference for particular 
assets--assets that we began to call ``toxic.'' Financial reform will 
be incomplete if we do not achieve public market transparency.
                              Appendix II

              Additional Material Submitted for the Record

                              ----------                              

  Statement of Michael E. Boyd, President, Californians for Renewable 
                          Energy, Inc. (CARE)
    Chairman Bingaman, Ranking Member Murkowski and members of the 
Committee in behalf of energy and natural gas ratepayers in the West I 
would like to thank you for an opportunity to provide rebuttal 
testimony to the testimony provided to you by the current Chairman of 
the Federal Energy Regulatory Commission (FERC), Wellinghoff, and the 
former FERC Chairman, Kelliher, regarding the regulation of over-the-
counter (OTC) derivatives, particularly with respect to energy markets. 
I am pleased to testify in support of the Commodity Futures Trading 
Commission Chairman Gary Gensler testimony. I would like ask for energy 
consumers to be given the opportunity that FERC was unwilling to 
provide us to be heard by the U.S. Senate Committee on Energy and 
Natural Resources on the adequacy of FERC's consumer protection or the 
lack thereof.
    CARE was the first consumer, environmental, and social-justice, 
non-profit (IRS 501(c)(3) Tax Exempt) corporation to blow the whistle 
on energy market manipulation by the likes of Enron, in our October 6, 
2000 complaint to the FERC under Docket EL01-2 et al. alleging the 
rolling blackouts in the San Francisco Bay Area on June 14th and 15th 
2000 where contrived by energy producers in concert with the California 
Independent System Operator Board of Governors to drive up prices and 
justify construction of more fossil-fuel burning power plants in 
California. CARE will not give up on the return of seventy one billion 
dollars in overcharges by power generators public and private, and 
cancellation of forty three billion dollars in long-term energy 
contracts negotiated by Governor Davis in secret that resulted from 
these, and other market manipulations.
    CARE is a party and an active participant in those proceedings 
related to the 2000-1 western energy crisis. The FERC decisions 
addressing the 2000-1 western energy crisis did not hold hearings 
settlement negotiations or other proceedings that included the affected 
ratepayers. CARE's efforts were the only direct ratepayer 
participation. All the other parties to the proceedings were regulated 
utility companies, energy commodity traders, governmental ``non-public 
utilities'' and state and federal government agencies that implemented 
the policies and practices leading to the energy crisis.
 shifting jurisdiction over energy markets from ferc to the cftc could 
impair ferc's ability to protect consumers from excessive energy rates 
                              is nonsense
    The Commodity Futures Trading Commission (CFTC) regulates certain 
financial derivatives under existing law, and would regulate additional 
financial derivatives under H.R. 4173, the Wall Street Reform and 
Consumer Protection Act of 2009 includes some energy derivatives 
(futures).
    Chairman Wellinghoff would have the Committee believe the FERC and 
the CFTC have different missions claiming ``FERC is a rate regulator 
and ensures that rates charged to energy customers are just and 
reasonable. FERC also approves and enforces electric reliability 
standards. The CFTC seeks to ensure that markets generally operate 
fairly and orderly, but has neither the authority nor the expertise to 
ensure the reasonableness of rates or oversee reliability of energy 
supplies. Shifting jurisdiction over energy markets from FERC to the 
CFTC could impair FERC's ability to protect consumers from excessive 
energy rates, an especially important consideration during a recession. 
Similarly, expanding the CFTC's authority in FERC-regulated markets 
could limit FERC's ability to police against market manipulation in 
energy markets. [SIC]'' [FERC Testimony at 1]
    This is nonsense and the Committee needs to look no further than to 
what FERC has done in its handling of the 2000-1 western energy crisis 
and the recovery of refunds (or lack thereof) for overcharges of 
seventy one billion dollars to California energy ratepayers alone not 
including those overcharged in the rest of the western United States to 
see FERC does not serve consumers' interests.
    On October 6, 2000 CARE filed its FERC Complaint in Docket EL01-2 
et al. against Independent Energy Producers, Inc. and All Sellers of 
Energy and Ancillary Services Into the Energy and Ancillary Services 
Markets Operated by the California Independent System Operator 
Corporation and the California Power Exchange; All Scheduling 
Coordinators Acting On behalf of the Above Sellers; California 
Independent System Operator Corporation; and California Power Exchange 
Corporation wherein I asked the ``Commission to rectify unjust and 
unreasonable prices stemming from the wholesale markets for energy and 
ancillary services operated by the California Independent System 
Operator (CAISO) and the California Power Exchange (CalPX). CARE 
requests that the Commission find that wholesale markets in California 
are not currently workably competitive. . .''
    Essentially FERC told me to shut-up and go away and electricity 
customers where not welcome at the FERC. But I didn't, because 
initially FERC had listed my complaint EL01-2 along with the San Diego 
Gas and Electric's (SDG&E's) complaint filed under Docket EL00-95 et 
al. now called the Refund proceedings which are still pending before 
the FERC and in which CARE is a Party.
    The disdain for which FERC has shown ratepayers is legendary; 
besides the fact that FERC failed to address the loss of ten lives as a 
direct result of the rolling blackouts in the San Francisco Bay Area on 
June 14th and 15th 2000 contrived by energy producers in concert with 
the CAISO Board of Governors, the FERC issued its April 19, 2007 Order 
Dismissing Complaint (119 FERC  61,058\1\) minimizing the impacts of 
market manipulation as the cause of the energy crisis by stating it was 
the result of a confluence of factors:
---------------------------------------------------------------------------
    \1\ See http://elibrary.ferc.gov/idmws/common/
opennat.asp?fileID=11313181

          First, it is now well accepted that the 2000-2001 energy 
        crisis in the West was the result of a confluence of factors. 
        These factors included: flawed market rules; inadequate 
        addition of generating facilities in the preceding years; a 
        drop in available hydropower due to drought conditions; a 
        rupture of a major pipeline supplying natural gas into 
        California; strong growth in the economy and in electricity 
        demand; unusually high temperatures; an increase in unplanned 
        outages of extremely old generating facilities; and market 
        manipulation.\2\ This was not a situation in which one or a few 
        factors stressed the market; rather, it was an unprecedented 
        situation in which numerous adverse events occurred 
        simultaneously to place California and the entire West in an 
        electricity crisis that had never before been experienced. [119 
        FERC  61,058 para 30 p. 9]
---------------------------------------------------------------------------
    \2\ San Diego Gas & Electric Co. v. Sellers of Energy and Ancillary 
Serv., 93 FERC  61,121(2000); San Diego Gas & Electric Co. v. Sellers 
of Energy and Ancillary Serv., 102 FERC  61,317(2003).

    In the seminal US Supreme Court Decision in Morgan Stanley Capital 
Group v. Snohomish County Washington Public Utility District No. 1, 06-
1457\3\ the US Supreme Court focused on this minimalist ``confluence of 
factors'' argument by the FERC by asking the federal courts and the 
FERC to take another look at the terms of long-term wholesale energy 
contracts several Western utilities signed during the 2000-1 energy 
crisis. In the 5-2 opinion, the high court said FERC acted within its 
authority to, in a balanced analysis, determine reasonable wholesale 
power rates but made mistakes in its regulatory review. Under the 
ruling both the Ninth Circuit and FERC must review how conclusions were 
reached.
---------------------------------------------------------------------------
    \3\ See http://www.supremecourtus.gov/opinions/07pdf/06-1457.pdf
---------------------------------------------------------------------------
    The Court noted at page 11 FERC's diminutive Order 119 FERC  
61,058:

          That diminishment of the role of long-term contracts in the 
        California electricity market turned out to be one of the seeds 
        of an energy crisis. In the summer of 2000, the price of 
        electricity in the CalPX's spot market jumped dramatically--
        more than fifteenfold. See ibid. The increase was the result of 
        a combination of natural, economic, and regulatory factors: 
        `flawed market rules; inadequate addition of generating 
        facilities in the preceding years; a drop in available 
        hydropower due to drought conditions; a rupture of a major 
        pipeline supplying natural gas into California; strong growth 
        in the economy and in electricity demand; unusually high 
        temperatures; an increase in unplanned outages of extremely old 
        generating facilities; and market manipulation.' CAlifornians 
        for Renewable Energy, Inc. v. Sellers of Energy and Ancillary 
        Servs., 119 FERC  61,058, pp. 61,243, 61,246 (2007).

    The case involves the terms of numerous power contracts purchased 
by utilities in California, Nevada and Washington State when energy 
markets were in turmoil. At issue in the appeals were long-term 
agreements that provided power at prices set during chaos in the spot 
electricity markets. After the crisis subsided, the utilities decided 
the contracts were set at unreasonably high prices that violated 
federal law.
    But the Commission, which oversees wholesale electricity prices, 
declined to order changes in the contracts. Justice Antonin Scalia, in 
the majority opinion, said FERC must engage in a thorough review when 
it oversees wholesale power contracts.

          `Balancing the short-term and long-term interests of 
        consumers entails difficult judgment calls, and to the extent 
        FERC actually engages in this balancing, its reasoned 
        determination is entitled to deference,' Justice Scalia wrote. 
        `But FERC cannot abdicate its statutory responsibility to 
        ensure just and reasonable rates through the expedient of a 
        heavy-handed presumption.'

    According to FERC Chairman Wellinghoff ``Congress has recognized 
FERC's role in ensuring that FTRs help protect utilities and their 
customers from increases in the cost of transmission service. As noted 
above, Congress in 2005 enacted Federal Power Act section 217, 
requiring FERC to use its authority in a way that enables load-serving 
entities to secure FTRs on a long-term basis for long-term power supply 
arrangements made to meet their customer needs. . .Moreover, Congress 
has indicated that RTOs and ISOs should be regulated exclusively by 
FERC. When Congress enacted the Food, Conservation, and Energy Act of 
2008 and addressed the regulatory gap known as the `Enron loophole,' by 
giving the CFTC authority over ``significant price discovery contracts 
[SPDCs],'' the Conference Report stated (on page 986) that `[i]t is the 
Managers' intent that this provision [on SPDCs] not affect FERC 
authority over the activities of regional transmission organizations or 
independent system operators because such activities are not conducted 
in reliance on section 2(h)(3) [of the Commodity Exchange Act].''' 
[FERC Testimony at 6 to 7]
    The Commission's current ISO/RTO governance processes effectively 
disenfranchise customers by treating them as a second distinct class 
while at the same time giving so-called ``stakeholders'' both 
Commission jurisdictional and non-jurisdictional market participants' 
control of the ISO/RTO in the very markets that are supposed to 
regulate them. There exists a revolving door between the regulated and 
the regulators\4\ under the current ISO/RTO governance structures, 
since customers exercise no oversight over these markets to insure 
their governing boards protect the customer's and publics' interests 
before those of market participants' commercial interests they are 
supposed to regulate. An example of this is the California Independent 
System Operator Corporation's (CAISO) current Board of Governors who 
are the appointees of the California Governor; not one who lists any 
experience representing any California customers.\5\
---------------------------------------------------------------------------
    \4\ An example of this regulatory revolving door comes from former 
FERC Chairman Kelliher whose March 9, 2010 testimony before the 
Committee states ``I am Executive Vice President--Federal Regulatory 
Affairs for FPL, Group, Inc. . . .FPL Group is on of the Nation's 
largest electricity companies. . .''that shows the revolving door 
between the FERC and FERC regulated entities like FPL.
    \5\ See Executive Biography: Mason Willrich, Chair http://
www.caiso.com/2449/2449cdbd3b9c0.pdf Executive Biography: Laura Doll 
http://www.caiso.com/2449/2449cec946570.pdf Executive Biography: Robert 
Foster http://www.caiso.com/2756/27568ae926390.pdf Executive Biography: 
Tom Habashi http://www.caiso.com/2756/27568b8f2d830.pdf Executive 
Biography: Kristine Hafner, Ph.D. http://www.caiso.com/2449/
2449ce1d3d5d0.pdf
---------------------------------------------------------------------------
    CARE objects to the California ISO's current governance, which 
disenfranchises its purported non-profit beneficiaries, who are 
electricity consumers, and ratepayers within the state of California.
    CARE proposes the CAISO board be composed of five directors elected 
at large by its general membership, whom are California's electricity 
consumers and ratepayers. The individual receiving the highest number 
of votes in the annual corporate election is recommended be designated 
by the title of Independent System Operator, who shall act of the 
corporation's, President of the Board, Chief Executive Officer, and 
shall act as the official representative of its California membership, 
in the FERC's other Regional Transmission Organization (RTO)s who are 
governed in the same manner as CARE proposes here for CAISO. Universal 
ratepayer suffrage is the key to workably competitive wholesale markets 
and providing open access to transmission services on a non-
discriminatory basis.
    CARE proposes that any ratepayer/consumer member of the ISO/RTO 
receiving fifty qualified member signatures on a nomination petition 
not less than ninety days prior to the corporate election be qualified 
as a nominee for election to the ISO/RTO board of directors. Such 
candidate shall be entitled to a statement of not more than 500 words, 
free of charge, which shall be delivered along with the official mail 
ballot. CARE proposes that such election take place by mail ballot 
delivered as part of the ratepayer/consumer electric utility bill, with 
a thirty-day polling period for return of ballots in a self addressed 
postage-paid envelope. Such ballots are recommended be addressed to the 
appropriate Secretary of State, who is statutorily entrusted to insure 
the fairness and impartiality of the corporate election process. The 
tallying of the ballots must be open to the members and their corporate 
director candidates to insure such impartiality.
    CARE views the transmission system as one big integrated 
transportation service that provides services locally, statewide, on 
the national and international basis much like Greyhound's passenger 
bus service. But unlike Greyhound this transportation service is for 
electricity instead of passengers. Like Greyhound's passenger bus 
service transmission services must be provided on a non-discriminatory 
basis, and in so doing insure that the regulation adopted protects the 
public's interest over the commercial interests of the provider of 
services. The Congress for example wouldn't want to put the KKK in 
charge of the seating arrangement for Greyhound buses. Likewise the 
Congress shouldn't put market participants in charge of the regulated 
markets under the FERC's jurisdiction if they ever want to eliminate 
discrimination in those markets.
   the ferc gives too great a deference to state utility commissions
    Also according to FERC Chairman Wellinghoff; ``State regulators 
support FERC's jurisdiction in wholesale energy markets instead of a 
shift of jurisdiction to the CFTC. Last month, the National Association 
of Regulatory Utility Commissioners (NARUC) adopted a resolution 
stating that FERC (and, within ERCOT, the state commission) ``should 
continue to be the exclusive Federal regulator with authority to 
oversee any agreement, contract, transaction, product, market mechanism 
or service offered or provided pursuant to a tariff or rate schedule 
filed and accepted by the FERC. . . .'' [FERC Testimony at 7]
    The Commission also gives too great a deference to State utility 
Commissions\6\ even when there is a clear conflict of interest between 
their duty to protect the ratepayers from unjust and unreasonable rates 
with their interests representing the state as a wholesale market 
participant.
---------------------------------------------------------------------------
    \6\ State regulatory authority
---------------------------------------------------------------------------
    In the Order on rehearing, motion for conditions and compliance 
filing re Duke Energy Trading and Marketing, L.L.C. et al under EL03-
152 et al., 126 FERC  61,234 (March 19, 2009), the Commission stated:

          CARE cites to 16 U.S.C. Sec.  2602(5), which is a PURPA 
        provision, but our action here is pursuant to the FPA and not 
        PURPA. In any event, even if CARE's citation were relevant, 
        CARE is not the only ratepayer advocate. For example, the 
        California Public Utilities Commission (CPUC), which is one of 
        the California Parties, represents California ratepayers.[] We 
        find that the CPUC's participation in these proceedings belies 
        CARE's claim that ratepayers were excluded.[] [Footnotes not 
        provided]

    CARE is currently challenging this finding before the US Court of 
Appeals for the Ninth Circuit, Docket No. 09-71515. This finding 
conflicts with the ``factual basis'' for the Commission's prior rulings 
on this issue--viz, that the CPUC and CDWR are both agents and 
representatives of the State of California--were not at issue or 
disputed. See Pub. Utils. Comm'n of Cal. v. Sellers of Long Term 
Contracts, 105 FERC 61,182 at 51 (2003) (``Complainants, like CDWR, are 
agents of the State of California'').
    Nor can it be disputed that the CPUC did not negotiate or sign 
these DWR contracts. What remains at issue, in the remanded cases, is 
the Commission's determination that the legal effect of these facts 
under California law, is that the CPUC somehow ``stepped into the 
shoes'' of CDWR and therefore must be considered a contracting party.
    These facts have created the irreconcilable conflict between the 
CPUC's roles as a ``State regulatory authority''\7\ to protect the 
interests of ``electric consumer[s]'' with the California Energy 
Resources Scheduling division of the California Department of Water 
Resources (CERS) as an ``electric utility''. The terms ``electric 
consumer'' and ``electric utility'' have the meanings given those terms 
in section 2602 of title 16.\8\ Therefore, CARE's efforts are the only 
direct ratepayer participation without the influence of their 
conflicting role as a market participant.
---------------------------------------------------------------------------
    \7\ Within the meaning given that term in section 796 (21) of title 
16.
    \8\ TITLE 42 CHAPTER 149 SUBCHAPTER XII Part E Sec.  16471 Sec.  
16471. Consumer privacy and unfair trade practices (f) Definitions For 
purposes of this section: (1) State regulatory authority The term 
``State regulatory authority'' has the meaning given that term in 
section 796 (21) of title 16. (2) Electric consumer and electric 
utility The terms ``electric consumer'' and ``electric utility'' have 
the meanings given those terms in section 2602 of title 16. TITLE 16 
CHAPTER 46 Sec.  2602 Sec.  2602. Definitions As used in this Act, 
except as otherwise specifically provided--(1) The term ``antitrust 
laws'' includes the Sherman Antitrust Act (15 U.S.C. 1 and following), 
the Clayton Act (15 U.S.C. 12 and following), the Federal Trade 
Commission Act (15 U.S.C. 14[41] and following), the Wilson Tariff Act 
(15 U.S.C. 8 and 9), and the Act of June 19, 1936, chapter 592 (15 
U.S.C. 13, 13a, 13b, and 21A). (2) The term ``class'' means, with 
respect to electric consumers, any group of such consumers who have 
similar characteristics of electric energy use. (3) The term 
``Commission'' means the Federal Energy Regulatory Commission. (4) The 
term ``electric utility'' means any person, State agency, or Federal 
agency, which sells electric energy. (5) The term ``electric consumer'' 
means any person, State agency, or Federal agency, to which electric 
energy is sold other than for purposes of resale.
---------------------------------------------------------------------------
                   michael\9\ and the bottomless pit
---------------------------------------------------------------------------
    \9\ Michael (the fifth angel) Michael (Hebrew, Greek, Latin, 
Arabic) is an archangel, one of the principal 50 angels in Christian 
and Islamic tradition. Tradition gives to St. Michael four offices: 1. 
To fight against Satan. 2. To rescue the souls of the faithful from the 
power of the enemy, especially at the hour of death. 3. To be the 
champion of God's people, the Jews in the Old Law, the Christians in 
the New Testament, the Islamic tradition in the Torah; therefore he was 
the patron of the Church, and of the orders of knights during the 
Middle Ages. 4. To call away from earth and bring men's souls to 
judgment
---------------------------------------------------------------------------
    A ``bottomless pit'' of unsecured debt was opened up worldwide when 
the Congress allowed unregulated banks to be created in 2000 in the 
Enron loophole. The ``Enron loophole'' exempted most over-the-counter 
energy trades and trading on electronic energy commodity markets from 
government regulation. The ``loophole'' is so-called as it was drafted 
by Enron Corporation lobbyists working with U.S. Senator Phil Gramm (R-
TX) to create a deregulated market for their experimental ``Enron On-
line'' initiative.\10\The ``loophole'' was enacted in sections Sec.  
2(h)(3) and (g) of the Commodity Exchange Act, 7 U.S.C. as a result of 
the Commodity Futures Modernization Act of 2000, signed by U.S. 
president Bill Clinton on December 21, 2000. It allowed for the 
creation, for U.S. exchanges, of a new kind of derivative security, the 
single-stock future, which had been prohibited since 1982 under the 
Shad-Johnson Accord, a jurisdictional pact between John S. R. Shad, 
then chairman of the U.S. Securities and Exchange Commission, and Phil 
Johnson, then chairman of the Commodity Futures Trading Commission. On 
June 22, 2008, then U.S. Senator Barack Obama proposed the repeal of 
the ``Enron loophole'' as a means to curb speculation on skyrocketing 
oil prices.\11\
---------------------------------------------------------------------------
    \10\ Mother Jones, http://www.motherjones.com/politics/2008/05/
foreclosure-phil
    \11\ ``Obama vows crackdown on energy speculators: McCain fires 
back after Democrat tries to tie rival to 'Enron loophole'' Associated 
Press 2008-06-22. http://www.msnbc.msn.com/id/25318274/
---------------------------------------------------------------------------
    The bottomless pit opened up when these unregulated banks selling 
over-the-counter (OTC) derivatives where created in the US by the 
government enacting the Enron loophole. The ``Enron loophole'' exempted 
most over-the-counter energy trades and trading on electronic energy 
commodity markets from government regulation.\12\ The ``loophole'' is 
so-called as it was drafted by Enron Corporation lobbyists working with 
U.S. Senator Phil Gramm (R-TX) to create a deregulated market for their 
experimental ``Enron On-line'' initiative.\13\ I've attached the check 
I got from Enron to show you we are battling the Devil.
---------------------------------------------------------------------------
    \12\ Jickling, Mark (2008-07-07). http://assets.opencrs.com/rpts/
RS22912_20080707.pdf
    \13\ Davis, Trey (2005-01-07). http://
www.universityofcalifornia.edu/news/2005/jan07.html
---------------------------------------------------------------------------
    My theory is that this bank in Switzerland holding all the futures 
(derivatives) is the bottomless pit referred to in Revelations Chapter 
9\14\ and 20\15\ and that it is the modern day equivalent of the Oracle 
at Delphi that went away in 394 AD. It existed at the time of Jesus 
Christ was born. I got this link from my buddy who is working for the 
UN bank in Switzerland. If we could take these boys out we could change 
the world. Will you help me to seal up the bottomless pit?
---------------------------------------------------------------------------
    \14\ Rev 9:1 And the fifth angel sounded, and I saw a star fall 
from heaven unto the earth: and to him was given the key of the 
bottomless pit. Rev 9:11 And they had a king over them, which is the 
angel of the bottomless pit, whose name in the Hebrew tongue is 
Abaddon, but in the Greek tongue hath his name Apollyon.
    \15\ Rev. 20:1-3 And I saw an angel come down from heaven, having 
the key of the bottomless pit and a great chain in his hand. And he 
laid hold on the dragon, that old serpent, which is the Devil, and 
Satan, and bound him a thousand years, and cast him into the bottomless 
pit, and shut him up, and set a seal upon him, that he should deceive 
the nations no more.

---------------------------------------------------------------------------
          I. Market developments in the first half of 2008

          The notional amounts outstanding of over-the-counter (OTC) 
        derivatives continued to expand in the first half of 2008. 
        Notional amounts of all types of OTC contracts stood at $683.7 
        trillion at the end of June, 15% higher than six months before 
        (Table 1). Multilateral terminations of outstanding contracts 
        resulted in the first ever decline of 1% in the volume of 
        outstanding credit default swaps (CDS) since the first 
        publication of CDS statistics in December 2004. The average 
        growth rate for outstanding CDS contracts over the last three 
        years has been 45%. In contrast to CDS markets, markets for 
        interest rate derivatives and FX derivatives both recorded 
        significant growth. Open positions in interest rate derivatives 
        contracts rose by 17%, while those in FX contracts expanded by 
        12%. Gross market values, which measure the cost of replacing 
        all existing contracts and are thus a better gauge of market 
        risk than notional amounts, increased by 29% to $20.4 trillion 
        at the end of June 2008.
                                good job
    In order for Satan to be bound by Michael's great chain all the 
futures (derivatives) must be unwound and all the underlying assets 
they are derived from must be revalued to eliminate this false debt so 
Satan that he should deceive the nations no more.
    I e-mailed you and faxed each member of Congress, the Senate, and 
the President in the middle of February 2009 about the presence of the 
bottomless pit which when I sounded the pit was at $683.7 trillion at 
the end of June 2008. See http://www.bis.org/publ/
otc_hy0811.pdf?noframes=1 at page 5
    The Bottomless Pit has declined around 90 trillion dollars at the 
end of June 2009 now it is at $592 trillion, see http://www.bis.org/
publ/qtrpdf/r_qt0909.pdf at page 45. This decline is attributed to a 
fear of further regulation of futures (derivatives). You have a duty to 
America and the world economies to seal the pit.
    Here is an explanation of what a credit default swap is (***note 
the Revelations chain is a Ponzi scheme). http://en.wikipedia.org/wiki/
Credit_default_swap
    Essentially these unregulated banks own the world's economies and 
there are no real assets backing any of this debt, so therefore; the 
bottomless pit. Everyone on the planet could work for the rest of their 
lives for the next 100 years and we still wouldn't pay off this debt--
clearly this is the bottomless pit referred to in Revelations.
    An unregulated futures market is nothing new however; for around 
one thousand eight hundred years it was called the Oracle at Delphi. 
Around 1400 BCE a goat herder noticed his sheep acted strange after 
peering into a particular chasm on Mount Parnassus. He looked in and 
found himself ``agitated like one frantic''. At least that is how the 
legend goes on the humble beginnings of the Oracle at Delphi.
    The effects of the brain altering vapors, Ruins were ultimately 
attributed to a divine source. Other people began inhaling the vapors 
so that they could prophesy. But the gas was so disorienting some fell 
into the cavern and were lost. So a tripod was built and an individual 
was appointed to sit over the chasm and prophesy. Originally, the 
perfect candidate was considered to be a young virgin girl. But after 
one of the virgins escaped with a young Thessalian it was decreed no 
prophetess (also called the Pythoness or the Pythia) would be appointed 
under 50 years of age. A booming industry grew up around the Oracle. 
Temples were built and rebuilt, priests were trained, rituals evolved 
and sacrifices were performed. Priests interpreted the incoherent 
utterances of the Pythia. Presents were brought to both placate the 
deity and in the hope of influencing a positive prophesy. The Delphic 
temple itself became one of the largest ``banks'' in the world. Delphi 
became a center for banking and commerce.
    The divine nature and associated deity changed a few times over the 
course of several centuries. When the profits of the Oracle began to 
decline it was declared that Poseidon was speaking through her. Later 
this changed to the goddess Themis and, finally, Apollo was determined 
to be presiding over Delphi. For over a millennia people traveled to 
the hill to consult the Oracle. Farmers consulted the Oracle on matters 
as simple as planting and harvest. Famous world leaders consulted on 
matters of conquest. Sophocles, Alexander the Great, and Croesus of 
Lydia all consulted the Oracle at one time or another.
    The priests' interpretations may have been more coherent than the 
Pythoness but they generally remained cryptic and ambiguous. Croesus 
for example donated a fortune to the oracle to find out if he should 
invade a neighboring country. He was told ``If you go to war you will 
cause the destruction of a great empire''. He went to war and not only 
was defeated but was captured. He sent word to the Oracle asking why he 
was misled. The word came back that he wasn't misled, he had been told 
that there would be the destruction of a great empire and there was--
his. The world famous Oracle of Delphi played an influential role in 
ancient history. For fourteen centuries it helped determine the course 
of empires. The prophesying was abolished in the 4th century as it 
conflicted with Christian beliefs that were at that time being embraced 
by Rome.
    Fast forward sixteen hundred and sixteen years to March 9, 2010 
Commodity Futures Trading Commission Chairman Gary Gensler testimony: 
``Nearly 60 years after the futures markets were regulated, the first 
OTC swap was transacted in 1981. During its early years, the OTC 
marketplace was highly tailored to meet specific risk management needs. 
Contracts were negotiated between dealers and their corporate customers 
seeking to hedge specific financial risks. In contrast to the regulated 
futures markets, these early OTC derivatives were not traded on 
exchanges. Instead, OTC derivatives were transacted bilaterally, with 
dealers standing between their various customers. In this market 
structure, dealers keep transactions on their books, leaving the 
financial institutions more interconnected with all of their customers 
and limiting the amount of relevant pricing information available to 
the public.
    In the last three decades, the over-the-counter derivatives 
marketplace has grown up, but it remains largely unregulated. Since the 
1980s, the notional value of the market has ballooned from less than $1 
trillion to approximately $300 trillion in the United States--that's 
$20 in derivatives for every dollar of goods and services produced in 
the American economy. The contracts have become much more standardized, 
and rapid advances in technology--particularly in the last ten years--
now can facilitate transparent trading of much of this market on 
electronic platforms. While so much of this marketplace has changed 
significantly, the constant that remains is that it is largely 
unregulated and still dealer dominated.
    It is now time to bring comprehensive regulation to this large and 
economically significant market. In well functioning markets, 
derivatives are meant to mitigate and help manage risk in the economy. 
Even if not for the 2008 financial crisis, this market should be 
regulated to achieve these goals. The financial crisis only highlights 
this in dramatically revealing how unregulated OTC derivatives and 
their dealers actually can heighten and concentrate risk to the great 
detriment of the American public. The need for broad based reform is 
the ultimate lesson of AIG and the broader risks brought about by the 
unregulated OTC derivatives market.''
                               conclusion
    Please help me to seal the bottomless pit by giving CFTC authority 
to regulate energy futures (derivatives) and their clearing houses like 
ISOs and RTOs. Universal ratepayer suffrage is the key to workably 
competitive wholesale markets and providing open access to transmission 
services on a non-discriminatory basis.
                                 ______
                                 
       Statement of the American Public Power Association (APPA)
    The American Public Power Association (APPA) appreciates the 
opportunity to provide the following statement for the record for the 
Senate Energy and Natural Resources Committee's hearing on financial 
transmission rights (FTRs) and we would like to endorse the testimony 
given by Mr. Michael Henderson, representing the Arkansas rural 
electric cooperatives.
    APPA represents the interests of more than 2,000 publicly-owned 
electric utility systems across the country, serving approximately 45 
million Americans. APPA member utilities include not-for-profit state 
public power agencies and municipal electric utilities that serve some 
of the nation's largest cities. However, the vast majority of these 
publicly-owned electric utilities serve small and medium-sized 
communities in 49 states, all but Hawaii. In fact, 70 percent of our 
member systems serve communities with populations of 10,000 people or 
less.
    Overall, public power systems' primary purpose is to provide 
reliable, efficient service to their local customers at the lowest 
possible cost, consistent with good environmental stewardship. Like 
hospitals, public schools, police and fire departments, and publicly-
owned water and waste-water utilities, public power systems are locally 
created governmental institutions that address a basic community need: 
they operate on a not-for-profit basis to provide an essential public 
service, reliably and efficiently, at a reasonable price.
    As the Senate continues its work in drafting legislation to 
regulate over-the-counter derivatives markets, we urge Congress to use 
caution to avoid creating duplicative authorities between the Commodity 
Futures Trading Commission (CFTC) and the Federal Energy Regulatory 
Commission (FERC) over the aspects of power supply and transmission 
markets that are run by Regional Transmission Organizations (RTOs) or 
Independent System Operators (ISOs).
    There are currently six RTOs/ISOs in several regions of the country 
under the jurisdiction of FERC. In these regions, market participants 
buy and sell a variety of electricity products and services in the 
centralized markets these RTOs/ISOs administer. These power supply-
related products and services are typically not furnished by the RTO 
itself; instead they are sold by market participants through 
centralized, auction-type market structures that the RTO administers. 
For example, most RTOs/ISOs operate ``day-ahead'' and ``real-time'' 
markets through which market participants buy and sell wholesale 
electric power. RTOs also administer markets for the purchase and sale 
of financial transmission rights (FTRs), which APPA members and other 
Load Serving Entities (LSEs) use to hedge the costs of transmission 
congestion associated with the transmission service they purchase from 
the RTOs/ISOs to move their power supplies to their retail customers 
(loads).
    While these FTRs are financial contracts, their terms, conditions 
and rates are comprehensively regulated by FERC and they should remain 
under FERC jurisdiction. These FTRs took the place of the physical 
transmission rights that LSEs had used to serve their loads prior to 
the implementation of RTO/ISO power supply markets. The ability of LSEs 
to have continued access to FTRs on reasonable terms and conditions is 
absolutely essential to their ability to serve their retail loads at 
reasonable rates and with less price volatility.
    RTO market rules are fully regulated by FERC and are set out in 
FERC-approved tariffs. The rates, terms and conditions applicable to 
any RTO product under a FERC tariff should not be subject to concurrent 
jurisdiction by CFTC. Concurrent jurisdiction could result in 
inconsistent regulations and uncertainty over enforceability of 
transactions. Because of this concern, if concurrent jurisdiction is 
found, CFTC should be required to consult with FERC regarding these 
markets and should be given statutory authority to cede jurisdiction to 
FERC.
    However, APPA is strongly concerned with market manipulation in 
electricity markets, and because of that we recognize that CFTC can 
play a beneficial role in policing and preventing such manipulation. 
CFTC and FERC could be most effective when working together to prevent 
manipulation in energy markets run by RTOs. APPA would therefore 
support concurrent FERC and CFTC jurisdiction only over market 
manipulation in RTO-administered markets. APPA would urge the two 
agencies to pool their resources and expertise to provide more 
comprehensive oversight in this specific area.
    In conclusion, while APPA fully supports legislation to curb 
manipulation in the OTC derivatives market, we urge Congress to use 
caution when drafting legislation in this area to ensure it does not 
have an unintended, adverse effect on retail electric and natural gas 
customers. From APPA's perspective, a well drafted bill will include 
the provisions necessary to curb market manipulation while preserving 
FERC's primary jurisdiction over RTO/ISO markets, including the FTR 
markets to hedge against energy price volatility.
                                 ______
                                 
                                         FPL Group,
                                Federal Regulatory Affairs,
                                    Washington, DC, March 26, 2010.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate, 304 
        Dirksen Senate Office Building, Washington, DC.
    Dear Chairman Bingaman: I am writing to supply additional 
information for the record of the hearing held by the Committee on 
``Financial Transmission Rights and Other Electricity Market 
Mechanisms'' on March 9, 2010. Specifically, I am writing in response 
to questions raised by Commodity Futures Trading Commission Chairman 
Gary Gensler about the accuracy of an example I used in my testimony 
involving financial hedges of wholesale power sales into the New Jersey 
Basic Generation Service (NJ BGS) auction.
    The question is whether these financial hedges were standard 
products that would be forced to trade on exchanges under various 
legislative proposals, requiring the posting of significant collateral 
and creating liquidity risk exposure, or custom products that would not 
be forced to trade on exchanges. In my testimony, I asserted these 
financial hedges were standard products. Following is an excerpt from 
my written testimony:

          It is critical that these companies continue to have access 
        to the OTC market for these hedges. Requiring suppliers to 
        hedge on an exchange would expose them to significant liquidity 
        risk for cash margining. The cost of this risk would ultimately 
        be borne by the utilities' customers via higher prices charged 
        for the full requirements service. For example, in February 
        utilities in New Jersey purchased approximately 2,500 MW for a 
        three-year term. If this entire volume were hedged on an 
        exchange, suppliers would have had to post about $1 billion in 
        cash to cover initial margin and variation margin. This $1 
        billion would have been added to bids accepted for the auction 
        and ultimately would have been borne by consumers in New 
        Jersey. There are a number of other states that conduct similar 
        auctions. They would face a similar cost premium to reflect the 
        additional working capital costs that suppliers would have to 
        bear if the OTC markets are not available for the hedging 
        needed to provide these types of products. Competition would 
        also decline as the liquidity risk would simply be unacceptable 
        to many suppliers. It is a basic tenet of markets that fewer 
        participants would result in higher prices to customers.

    At the hearing, Chairman Gensler suggested the NJ BGS example in my 
testimony was a ``red herring'', maintaining that the transactions 
involved were physical sales of wholesale power outside CFTC 
jurisdiction or financial hedges that were custom products rather than 
standard products.\1\ I write to provide additional information 
demonstrating these financial hedges are indeed standard products, and 
stand by the accuracy of my testimony.
---------------------------------------------------------------------------
    \1\ CHAIRMAN B1NGAMAN: ``Let me ask on this specific that Joseph 
Kelliher talked about there, the auction that occurred ... in New 
Jersey last month, What is your thinking about the role the CFTC would 
play on that kind of a--''
    MR. GENSLER: ``I am glad you asked it. I understand the facts on 
that, probably none. I think it is a red herring, with all respect to 
Chairman Kelliher. I think it is probably a cash transaction that is 
excluded under the Commodity Exchange Act. We do not cover cash or 
physical spot or forward contracts. If Congress were to move forward 
and actually suggest that we cover broad, over-the-counter derivatives, 
it would only be the standard transactions that would be recommended to 
be brought to central clearing, and I think the transaction he was 
describing, if it were an over-the-counter derivative, would actually 
be customized or tailored,''
    Financial Transmission Rights and Other Electricity Market 
Mechanisms, Hearing Before the Senate Comm. On Energy and Nat. 
Resources, 111th Cong. 44-45 (March 9, 2010) (unofficial transcript).
---------------------------------------------------------------------------
    The example in my testimony described a typical full requirements 
product that many utilities procure to provide retail electric service. 
The NJ BGS auction is one of the most competitive and highly regarded 
wholesale power procurement auctions in the country. The product 
procured in the NJ BGS auction includes electricity delivered in 
quantities that match the utilities' load, or a percentage thereof, in 
each hour of the day, ancillary services and other products, hence they 
are called full requirements products. The Federal Energy Regulatory 
Commission (FERC) has jurisdiction over these wholesale power sales. A 
supplier of the full requirements product to serve one block of firm 
load in the Public Service Electric and Gas (PSE&G) service territory 
would have the obligation to serve 1.18% of PSE&G's firm load at any 
given hour for three years. The load obligation varies by season and 
time of day, but has a peak load of 99 megawatts and an average load of 
45 megawatts.
    Given the uncertainty regarding future wholesale power prices, 
sellers often hedge their positions with standardized products. These 
standardized hedges consist of one of, or a combination of (i) physical 
wholesale power purchases subject to FERC regulation and (ii) financial 
products purchased from over-the-counter (OTC) markets. The supplier 
would also enter into financial swaps to hedge the price risk between 
the liquid trading point and the utility's delivery point, commonly 
referred to as basis swap transactions. If the transaction is hedged 
with a combination of financial products, the physical delivery of 
power to meet the utility's load obligations would be purchased in the 
physical spot market.
    In the example used in my testimony, a supplier of one block of 
PSE&G firm load would procure standard on and off peak block power 
products of seasonal, yearly or multi-year terms at PJM West, the 
closest liquid trading hub to the PSE&G delivery zone. The block power 
purchases would be made in such a fashion to as closely as possible 
replicate the expected load obligation by month. However, due to the 
nature of the standardized products that are traded at the PJM West 
Hub, quantities that exactly match PSE&G's expected load are not 
typically available. The same process of buying on and off peak block 
volumes in seasonal, yearly or multi-year terms would be followed for 
the basis swap transactions. The supplier of the full requirements 
product then manages the exposure resulting from variations between the 
actual load volume and the procured hedge products.
    None of the financial products used to hedge the risk associated 
with these forward wholesale power sales into the NJ BGS are custom 
products. These are standard OTC products with fixed volumes and terms 
associated with liquid pricing points\2\. NYMEX and ICE trade multiple 
products associated with the PJM West Hub, some of which could be used 
to hedge the price risk associated with buying the PJM West Hub block 
power referenced in the example above. The NYMEX and ICE purchases 
would likely be considered standardized under the pending legislation. 
Similarly, both the NYMEX and Nodal Exchange trade multiple basis swap 
products, including the basis swap between the PJM West Hub and the 
PSE&G service territory, and such products would likely be considered 
standardized products. Legislative proposals that would force trading 
and clearing of standard products would indeed mandate the trade of 
these products on exchanges.
---------------------------------------------------------------------------
    \2\ A customized product utilized to hedge a supplier's firm load 
obligation to PSE&G would contain non-standard terms to the transaction 
such as a shaped hourly volume rather than fixed block volumes of 
energy, or would have other terms that would not be readily tradable in 
the market by multiple parties. It should be noted, however, that the 
supplier of such non-standard products would most likely have to hedge 
its exposure using a combination of standard products and then manage 
the exposure resulting from the variations between the non-standard 
product and the standard hedges.
---------------------------------------------------------------------------
    Requiring suppliers to hedge on an exchange would expose them to 
significant liquidity risk for cash margining. The cost of this risk 
would ultimately be borne by the utility's customers via higher prices 
charged for the full requirements service. In this particular instance, 
financially hedging one block of PSE&G firm load with a standard 50 
megawatt block of PJM West energy on an exchange versus OTC would have 
resulted in an initial cash margin posting of $6.6 million and a peak 
cash margin posting to the exchange of $21 million. Extrapolating this 
exposure to cover the entire auction volume would have required 
suppliers to post over $1 billion in cash to cover the exchange 
requirements.
    I continue to maintain that requiring energy companies and end 
users to conduct all of their transactions of standard products on 
exchanges and subjecting those transactions to costly central clearing 
requirements would result in significant price increases and reduced 
participation in the market, without any commensurate reduction in 
risk. This is why I support an end-user exemption for both wholesale 
and retail market participants
            Sincerely,
                                        Joseph T. Kelliher,
                                          Executive Vice President.

                                    

      
