[Federal Register Volume 67, Number 89 (Wednesday, May 8, 2002)]
[Rules and Regulations]
[Pages 31044-31073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-10806]



[[Page 31043]]

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Part III





Department of Energy





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Federal Energy Regulatory Commission



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18 CFR Parts 2 and 35



Revised Public Utility Filing Requirements; Final Rule

  Federal Register / Vol. 67, No. 89 / Wednesday, May 8, 2002 / Rules 
and Regulations  

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 2 and 35

[Docket No. RM01-8-000; Order No. 2001]


Revised Public Utility Filing Requirements

Issued April 25, 2002.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: In this final rule, the Federal Energy Regulatory Commission 
(Commission) is amending its filing requirements for public utilities 
under the Federal Power Act (FPA) to require public utilities to 
electronically file Electric Quarterly Reports summarizing the 
contractual terms and conditions in their agreements for all 
jurisdictional services (including market-based power sales, cost-based 
power sales, and transmission service) and transaction information for 
short-term and long-term market-based power sales and cost-based power 
sales during the most recent calendar quarter. Under this rule, public 
utilities may file standard forms of service agreements for Commission 
approval for all cost-based transmission and power sales services they 
offer under 18 CFR part 35 and will file agreements for such services 
provided under this Part that do not conform to an applicable standard 
form of service agreement. Executed market-based power sales agreements 
need not be filed.
    The procedures adopted in this rule will replace the current 
procedure whereby public utilities file short-term and long-term 
service agreements for market-based sales of electric energy, service 
agreements for generally applicable services, such as point-to-point 
transmission service, and Quarterly Transaction Reports summarizing 
their short-term sales and purchases of power at market-based rates. 
This rule also further clarifies the book outs that must be reported in 
Electric Quarterly Reports. Implementation of the reporting 
requirements will take place in two phases: an interim phase through 
October 31, 2002, and a final phase thereafter.
    This rule will make available for public inspection, in a 
convenient form and place all relevant information relating to public 
utility rates, terms, and conditions of service; ensure that 
information is available in a standardized, user friendly format; and 
meet the Commission's electronic filing option obligation.\1\ These 
actions also will allow the public to better participate in and obtain 
the full benefits of wholesale electric power markets while minimizing 
the reporting burden on public utilities.
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    \1\ Under the Government Paperwork Elimination Act, Pub. L. No. 
105-277, sections 1702-1704, the Commission is required to develop 
electronic filing options by October 2003.

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EFFECTIVE DATE: This final rule will become effective on July 8, 2002.

FOR FURTHER INFORMATION CONTACT:
H. Keith Pierce (Technical Information), Office of Markets, Tariffs, 
and Rates, Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 208-0525.
Gary D. Cohen (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 208-0321.
Barbara D. Bourque (Information Technology Information), Office of 
Markets, Tariffs, and Rates, Federal Energy Regulatory Commission, 888 
First Street, NE., Washington, DC 20426, (202) 208-2338.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Introduction
9. Discussion
    10. Overview
    27. Justification for Actions Taken in this Final Rule
    35. Response to Comments
    36. Reasons for Data Collection
    37. Price Transparency and FPA Section 205 Filing Requirements.
    47. Information about Cost-based Transactions under Section 
205(c) of the FPA.
    54. The Transaction Data Will Also Be Useful for Market 
Monitoring Purposes.
    63. The Commission Will Not Defer Action until Completion of a 
Comprehensive Review of Market Monitoring Functions.
    70. Electric Quarterly Reports Will Be Implemented in Two 
Phases.
    77. Confidentiality Issue
    80. The Transaction-Specific Information Is Not Commercially 
Sensitive and Will Not Be Given Confidential Treatment.
    99. There is Good Reason to Treat Data in Electric Quarterly 
Reports Differently than Natural Gas Sales Data.
    107. Transparency Regarding the Rates, Terms, and Conditions of 
Market-based Power Sales.
    112. Disclosure Does Not Compromise National Security.
    116. Proposals That Would Avoid Disclosure of Transaction-
Specific Data Are Inadequate.
    130. Power Marketers and Traditional Utilities Are Treated 
Equally.
    136. Burden Issue
    137. The Information Collections Do Not Impose an Unreasonable 
Burden
    162. Consistent with the Paperwork Reduction Act, the Filing 
Requirements Are the Least Burdensome Possible.
    167. The Information Reported Will Be Useful.
    172. Uniform Data Sets Are Needed.
    177. Reporting the Termination Dates of Agreements, Instead of 
Filing Notices of Termination, Constitutes a Significant Burden 
Reduction.
    182. Data Will Be Collected Efficiently, Without Duplicate 
Entries.
    187. Filing Procedures and Related Issues
    188. All Unexecuted and Nonstandard Non-Market-Based Rate 
Agreements Are Nonconforming Agreements and must Be Filed with the 
Commission for Approval.
    202. Scope of Standard Service Agreements.
    211. Duration of Requirement to Report Data.
    218. Consequences of Noncompliance.
    224. This Rule Does Not Nullify Existing Tariff Conditions or 
System Agreements.
    231. Timing and Frequency for Filing Electric Quarterly Reports.
    238. Use of Utility Web Sites.
    245. Procedures for Cancelling Expiring Agreements.
    251. Data to Be Filed in Electric Quarterly Reports
    253. Transaction Data
    254. Public Utilities Will Report Actual Prices for All 
Transactions, Including Those Lasting Less than One Day.
    262. Report Reactive Power as an Ancillary Service
    267. Report Transaction Data for Ancillary Services Associated 
with Power Sales.
    273. Book Outs
    274. Defining Book Outs.
    286. Reporting Book Outs Is Not Unduly Burdensome.
    292. Report Book Outs on a Disaggregated Basis.
    295. Contract Data Requirement
    296. All of the Contract Terms and Conditions to be Reported Are 
Identified in the Data Elements.
    302. Data Elements Issues
    303. Consistency with the OASIS Standards and Communications 
Protocols Document.
    309. Deleted Data Elements.
    315. Transaction End Date.
    320. Cancellation Date.
    322. Other Services.
    327. Future Revisions to Data Elements.
    330. Role of RTOs
    338. Section by Section Revisions
    339. Deletion of Sec. 2.8
    341. Revised Heading for 18 CFR Part 35
    343. Revisions to Sec. 35.1--Conforming Service Agreements
    345. Revisions to Sec. 35.10a--Forms of Service Agreements
    347. Revisions to Sec. 35.10b(a)--Electric Quarterly Reports
    349. Revisions to Secs. 35.10b(b), (c) and (d)
    351. Revisions to Sec. 37.6
    353. Revisions to Data Sets
    355. Implementation
361. Regulatory Flexibility Act Certification
363. Environmental Statement

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365. Public Reporting Burden and Information Collection Statement
383. Document Availability
389. Effective Date and Congressional Notification
Attachment A--List of Commenters
Attachment B--Summary of Required Data Sets
Attachment C--Description of Data Elements to Be Filed

Before Commissioners: Pat Wood, III, Chairman; William L. Massey, 
Linda Breathitt, and Nora Mead Brownell.

1. Introduction

    2. On July 26, 2001, the Commission issued a Notice of Proposed 
Rulemaking (NOPR) that proposed a change in the reporting requirements 
for jurisdictional public utilities. Specifically, the NOPR proposed to 
eliminate the requirements for filing the following documents: (1) 
Short-term and long-term service agreements \2\ for market-based sales 
of electric energy; (2) agreements for generally applicable services, 
such as point-to-point transmission service, for which a public utility 
has a standard form of service agreement under its tariff; and (3) 
Quarterly Transaction Reports summarizing short-term purchases and 
sales of power at market-based rates.\3\
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    \2\ All references to ``agreements'' in this rule include all 
the forms an agreement may take under 18 CFR 35.2(b), including 
contracts, purchase or sales agreements, lease of facilities, etc.
    \3\ Revised Public Utility Filing Requirements, 66 FR 40929, 
FERC Stats. & Regs., Proposed Regulations, para. 34,554 at 34,056-57 
(2001).
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    3. The NOPR proposed replacing these filings with an electronic 
filing to the Commission, known as the Index of Customers,\4\ 
summarizing the contractual terms and conditions in each utility's 
agreements for jurisdictional service--that is, for market and cost-
based power sales and transmission service--and transaction information 
for each utility's short and long-term power sales during the most 
recent calendar quarter. The NOPR also proposed that each utility would 
post its Index of Customers on its Internet web site. Comments in 
response to the NOPR were due by October 5, 2001. In response to the 
NOPR, comments were filed by 39 respondents.\5\
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    \4\ As discussed below, the Commission is changing the name 
``Index of Customers'' to ``Electric Quarterly Report.'' Thus, when 
we discuss the NOPR and Data Sets Order proposals, and comments in 
response thereto, we will refer to the Index of Customers, but when 
we refer to the filing requirements adopted in this final rule we 
refer to the Electric Quarterly Report.
    \5\ Attachment A lists the persons and entities who filed 
comments in response to the NOPR and the abbreviations used to 
identify them.
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    4. Existing filing requirements, the proposed filing requirements, 
and the filing requirements being adopted in this final rule are 
illustrated by the two tables below. Table 1 summarizes the 
Commission's current filing requirements.

 5. Table 1.--Summary of Current Filing Requirements Under Open Access and Cost-based Tariffs, and Under Market-
                                              Based Rate Authority
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                                                                          Long-term    Short-term     Quarterly
     Type of tariff or rate schedule               Filing party            service       service     transaction
                                                                         agreements    agreements      reports
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Open Access Transmission Tariff..........  Non-marketer Public Utility            x             x
Cost-Based Power Sales Tariff............  Non-marketer Public Utility            x             x
Market-Based Power Sales Tariff..........  Non-marketer Public Utility            x             x             x
Market-Based Power Sales Tariff or Rate    Affiliated or Unaffiliated         o \1\                          x
 Schedule.                                  Power Marketer.
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Legend: ``x'' means agreement or report is required to be filed, ``o'' means requirement to file is in abeyance.
 
\1\ Southern Company Services, Inc. et al., 76 FERC para. 61,321 (1996); 87 FERC para. 61,214 at 61,849 (1999),
  reh'g pending (Southern), rescinded on a prospective basis previously-granted waivers of the requirement that
  power marketers file long-term service agreements, effective thirty days after the issuance of a final order
  in that proceeding. The Commission delayed the effectiveness of this finding until the issuance of a final
  order in the Southern proceeding. In an order being issued concurrently with this rule, there rehearings are
  being denied as moot.

    6. Table 2 summarizes the filing requirements proposed in the NOPR 
and adopted in this rule.

                     7. Table 2.--Summary of Public Utility Filing Requirements Proposed in the NOPR and Adopted in this Final Rule
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                                                              Do standard forms of       Are conforming       Are nonconforming
  Type of tariff or rate schedule         Filing party         service agreements    service agreements to  service agreements to   Reported in electric
                                                                     apply?                be filed?              be filed?        quarterly reports \1\
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Open Access Transmission Tariff....  Non-marketer Public     Yes...................  No...................  Yes..................  C
                                      Utility.
Cost-Based Power Sales Tariff......  Non-marketer Public     Yes...................  No...................  Yes..................  C, T
                                      Utility.
Other Generally Applicable Services  Non-marketer Public     Yes...................  No...................  Yes..................  C
                                      Utility.
Market-Based Power Sales Tariff or   Affiliated or           No....................  N/A..................  N/A..................  C, T
 Rate Schedule.                       Unaffiliated Power
                                      Marketer.
Market-Based Power Sales Tariff....  Non-marketer Public     No....................  N/A..................  N/A..................  C, T
                                      Utility.
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Legend: ``N/A'' means not applicable, ``C'' means file contract data, ``T'' means file transaction data.
\1\ Referred to in NOPR as the Index of Customers


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    8. On December 20, 2001, the Commission issued an order seeking 
comment on the specific data elements that public utilities would 
report in the Index of Customers.6-8 These items were 
generally described in the NOPR, but the Data Sets Order provided more 
specificity as to the actual information in each data field. The Data 
Sets Order also clarified that any ``book out or net out based on the 
physical characteristics * * * of the transactions must be reported as 
separate transactions'' \9\ and that utilities would be required to 
``report book outs and net outs of physical transactions on a 
disaggregated basis showing each individual leg of the transaction that 
generated the book out or net out.'' \10\ Finally, the Data Sets Order 
declined to postpone action on a final rule pending the Commission's 
completion of a review of the information needed for market monitoring 
purposes.\11\ Comments in response to the Data Sets Order were due by 
January 28, 2002. In response to the Data Sets Order, comments were 
filed by 19 respondents.\12\
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    \6-8\ Revised Public Utility Filing Requirements, 67 FR 67134, 
FERC Stats. & Regs. para. 35,541 (2001) (Data Sets Order).
    \9\ FERC Stats. & Regs. para. 35,541 at 35,806. As explained in 
the Data Sets Order and as further discussed below, ``book outs'' 
occur when the cumulative effect of a number of separate power sales 
between two parties is such that they mutually agree to exchange 
their obligations to physically deliver power to each other, while 
maintaining all their other obligations, including payment. ``Net 
outs'' are an accounting device to minimize offsetting payments.
    \10\ Id.
    \11\ Id. at 35,804.
    \12\ Attachment A also lists the persons and entities who filed 
comments in response to the Data Sets Order and the abbreviations 
used to identify them.
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9. Discussion

10. Overview

    11. The Commission's Part 35 regulations, 18 CFR Part 35, implement 
FPA section 205(c), which allows the Commission to prescribe the rules 
and regulations under which public utilities shall file with the 
Commission schedules showing their rates, terms, and conditions of 
jurisdictional services.\13\
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    \13\ Section 205(c) of the FPA provides:
    Under such rules and regulations as the Commission may 
prescribe, every public utility shall file with the Commission, 
within such time and in such form as the Commission may designate, 
and shall keep open in convenient form and place for public 
inspection schedules showing all rates and charges for any 
transmission or sale subject to the jurisdiction of the Commission, 
and the classification, practices, and regulations affecting such 
rates and charges, together with all contracts which in any manner 
affect or relate to such rates, charges, classifications, and 
services.
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    12. In its July 26, 2001 NOPR, the Commission proposed to revamp 
its filing requirements to improve the quality and accessibility of 
information available to the public and the Commission, while at the 
same time reducing the filing and reporting burden on public utilities. 
The Commission specifically examined the filing requirements under Part 
35 of the Commission's regulations applicable to the filing of service 
agreements by traditional public utilities, and the filing of Quarterly 
Transaction Reports by traditional public utilities and power marketers 
with a view towards making these filings less burdensome and more 
usable and understandable. For the most part, based on comments 
received on the NOPR, the Commission has decided to retain the reported 
data currently reported for both traditional public utilities and power 
marketers. However, through this final rule, the Commission will change 
the format through which these entities will satisfy their FPA section 
205(c) reporting responsibilities for filing agreements.
    13. The revised filing requirements the Commission is adopting here 
are one part of a larger and on-going assessment of information needs 
for regulating and monitoring current and evolving energy markets. The 
final rule is part of a comprehensive review of information and 
reporting requirements the Commission is undertaking to assess the 
adequacy of energy market infrastructure, the adequacy of the supply of 
electricity and natural gas, the efficiency of market rules and 
industry compliance with them.
    14. The revised filing requirements will allow the Commission to 
perform its historic regulatory functions over transmission and cost-
based power sales while providing information on market-based power 
sales in a usable format. This will also better allow customers and the 
Commission to identify situations that indicate the possible exercise 
of market power that warrant specific investigation. The importance of 
these goals requires the issuance of this final rule now, before the 
Commission completes the comprehensive information needs assessment.
    15. The revised filing requirements also reflect the Commission's 
commitment to using information technology to both reduce the burden on 
reporting entities and to increase the usefulness of the data reported. 
In Order No. 619,\14\ the Commission established an electronic filing 
initiative to meet the goals of the Government Paperwork Elimination 
Act, which directs agencies to provide for the optimal use and 
acceptance of electronic documents and signatures and electronic 
record-keeping, where practical, by October 2003.\15\ Similarly, Office 
of Management and Budget (OMB) Circular A-130 requires agencies to use 
electronic information collection techniques where such means will 
reduce the burden on the public, increase efficiency, reduce costs and 
help provide better service.
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    \14\ Electronic Filing of Documents, Final Rule, 65 FR 57088, 
FERC Stats. & Regs., Regulations Preambles 1996-2000, para. 31,107 
(2000).
    \15\ Pub. L. 105-277, Sections 1702-1704.
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    16. The regulations the Commission is adopting here meet these 
goals by replacing paper filings with electronic filings that will be 
easy for customers to access and use. The Commission has also decided 
to establish a place on its own web site for the posting of Electric 
Quarterly Reports, which will make the reports of all public utilities 
easily accessible in one place and eliminate the burden on public 
utilities of having to maintain postings on their own web sites.
    17. The revised filing requirements also reflect the Commission's 
careful balancing of the need for data transparency against the concern 
that price information can be used for anti-competitive purposes. The 
Electric Quarterly Reports will be filed 30 days after each calendar 
quarter. This time delay will greatly reduce the usefulness of the data 
as a tool for collusion but gives customers data they need for long-
term decision making.
    18. The proposals adopted in this final rule have five main 
features. First, public utilities that have standard forms of 
agreements in their transmission, cost-based power sales tariffs, or 
tariffs for other generally applicable services will no longer file 
conforming agreements with the Commission. The filing requirements of 
FPA section 205(c) will be satisfied by the standard forms of 
agreements and by the electronic filing of Electric Quarterly Reports. 
Electric Quarterly Reports will be filed with the Commission, and the 
Commission will post them on FERC's Internet web site.
    19. Second, agreements for transmission, cost-based power sales, 
and other generally applicable services that do not conform to an 
applicable standard form of agreement in a public utility's tariff, 
including agreements with individualized terms and conditions or 
unexecuted agreements for any service, must continue to be filed with 
the Commission for approval before going into effect.

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    20. Third, the standard forms of service agreements are not 
applicable to market-based rate agreements. Public utilities will 
continue to file requests for market-based rate authority on a case-by-
case basis, and agreements under the umbrella tariffs approved in these 
cases need not be filed with the Commission. However, public utilities 
(both traditional utilities and power marketers) will include data 
about their market-based power sales in their Electric Quarterly 
Reports.
    21. Fourth, the Electric Quarterly Report will include contract 
data and transaction data. The transaction data will provide 
information about all the power sales the public utility made during 
the reporting period.
    22. For the filing periods ending July 31, 2002 and October 31, 
2002, respondents will use the FERC electronic filing system (available 
on the FERC Internet site, www.ferc.gov) using the link labeled e-
Filing. Contract data for agreements entered into between April 1, 2002 
and June 30, 2002 will be reported in the July 31, 2002 filing and 
thereafter. Contract data for agreements entered into between July 1, 
2002 and September 30, 2002 will be reported in the October 31, 2002 
filing and thereafter. Electric Quarterly Reports filed on July 31, 
2002 will include transaction data for all power sales made between 
April 1, 2002 and June 30, 2002. Electric Quarterly Reports filed on 
October 31, 2002 will include transaction data for all power sales made 
between July 1, 2002 and September 30, 2002. The public will be able to 
view and download filed documents from the FERC Internet site using 
either the RIMS or FERRIS document management systems. In the near 
future, the Commission will issue an instruction manual to govern the 
filing of the July 31, 2002 and October 31, 2002 Electric Quarterly 
Reports. For reports filed after October 31, 2002, this filing format 
will be replaced by a relational database now under development. The 
final format will be implemented in a subsequent order. The final 
format will incorporate the same data sets adopted in this rule.
    23. Fifth, in the Data Sets Order, we clarified that we were 
seeking additional information on book outs and net outs. In this final 
rule, in response to comments on this issue, we further clarify the 
book out information that must be reported and drop the requirement to 
report net outs.
    24. The reporting of disaggregated book outs and transaction data 
for cost-based power sales are new reporting requirements. The burden 
associated with reporting these data are reflected in the burden 
estimate and is more than offset by the burden reductions achieved by 
the reduction in required filings.
    25. Regarding the specific data sets adopted in this final rule, we 
have made only minor revisions to the data sets proposed for comment in 
the Data Sets Order. These changes for the most part further reduce the 
amount of data that must be filed in the Electric Quarterly Reports. 
With these exceptions, the data sets change only the format and not the 
substance of data to be reported.
    26. The current requirements for public utilities to file 
agreements and Quarterly Transaction Reports detailing their market-
based rate transactions are rescinded as of July 1, 2002. Public 
utilities may begin to file their standard forms of service agreements 
for Commission approval immediately.\16\ Finally, the Commission will 
take a further look at filing requirements when it completes its 
Standard Market Design initiative. We will ensure that the data public 
utilities report are consistent with and support a standard market 
design.
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    \16\ Public utilities may wish to file their proposed standard 
forms of agreements for Commission approval as soon as possible. 
Until a public utility has standard forms of agreement in place for 
transmission (OATT), cost-based power sales and other generally 
applicable services, it must continue filing agreements for those 
services.
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27. Justification for Actions Taken in this Final Rule

    28. This rulemaking was initiated in response to the dramatic 
changes that have occurred in the electric power industry in recent 
years as a result of numerous factors, including the onset of open 
access transmission under Order Nos. 888 and 889 \17\ and the 
Commission's approval of umbrella tariffs under which public utilities 
may make wholesale sales of power at market-based rates. Each of these 
market-based rate authorizations contained the condition that the 
public utility (whether a traditional utility or a power marketer) 
would file Quarterly Transaction Reports detailing the short-term power 
sales they had made during the period. In addition, traditional 
utilities were required to file their long-term and short-term service 
agreements with the Commission. Further, although the Commission had 
determined that power marketers would file their long-term service 
agreements with the Commission for approval, this requirement has not 
yet gone into effect, pending issuance of a further order in the 
Southern proceeding.\18\
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    \17\ See Promoting Wholesale Competition Through Open Access 
Non-Discriminatory Transmission Services by Public Utilities; 
Recovery of Stranded Costs by Public Utilities and Transmitting 
Utilities, Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & 
Regs. para. 31,036 order on reh'g, Order No. 888-A, 62 FR 12274 
(Mar. 14, 1997), FERC Stats. & Regs. para. 31,048 (1997), order on 
reh'g, Order No. 888-B, 81 FERC para. 61,248 (1997), order on reh'g, 
Order No. 888-C, 82 FERC para. 61,046 (1998), aff'd in relevant part 
sub nom., Transmission Access Study Group, et al. v. Federal Energy 
Regulatory Commission, No. 97-1715 (D.C. Cir. 2000), aff'd sub nom., 
New York v. FERC, 122 S. Ct. 1012 (2002); Open Access Same-Time 
Information System and Standards of Conduct, Order No. 889, 61 FR 
21737 (May 10, 1996), FERC Stats. & Regs. para. 31,035 (Apr. 24, 
1996), order on reh'g, Order No. 889-A, 62 FR 12484 (Mar. 14, 1997), 
FERC Stats. & Regs. para. 31,049 (1997), order on reh'g, Order No. 
889-B, 81 FERC para. 61,253 (1997), order on reh'g, Order No. 889-C, 
82 FERC para. 61,046 (1998).
    \18\ See note 6, supra.
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    29. While the industry has changed dramatically since public 
utilities began making wholesale power sales at market-based rates, the 
Commission's filing requirements have not been changed to keep abreast 
of new developments. The volume of transactions taking place has grown 
significantly. Moreover, the quality of information provided in 
quarterly transaction reports has proven to be inconsistent and not 
always sufficiently informative for the Commission and the public. The 
number of service agreement filings have also increased. The Commission 
estimates that, based on the number of filings in Fiscal Year 2000, 
approximately 2500 annual filings would be eliminated, although this 
amount will vary from year to year. These factors led the Commission to 
initiate this proceeding to revise the Commission's filing requirements 
to improve the quality and accessibility of information available to 
the public and to the Commission, while at the same time reducing the 
burden on filing public utilities.
    30. We believe that with issuance of this final rule, we accomplish 
these goals. We note, however, that as actual experience is gained in 
implementing these procedures, we will be receptive to consensus 
suggestions that would improve the Data Sets and to recommendations on 
other technical matters.\19\
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    \19\ In Electricity Market Design and Structure, 97 FERC para. 
61,289 (2001), the Commission invited industry to propose a single 
organization to make recommendations on electric standards. This 
organization could recommend further revisions to the data sets in 
the future, if needed. The Commission has not yet made any decisions 
on a standards-setting organization.
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    31. The revised public utility filing requirements adopted in this 
final rule create a level playing field vis a vis the filing 
requirements applicable to traditional utilities and power marketers. 
While the data to be reported in the data sets reduces public 
utilities'

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overall reporting burden as compared to existing requirements, it is 
hoped that the Electric Quarterly Reports' more accessible format will 
make the information more useful to the public and the Commission and 
will better fulfill the public utilities' responsibility under FPA 
section 205(c) to have rates on file in a convenient form and place. 
The data should provide greater price transparency, promote 
competition, enhance confidence in the fairness of markets, and provide 
a better means to detect and discourage discriminatory practices.
    32. The reason we are collecting information about book outs is 
because these transactions, at a minimum, relate to sales for resale of 
electric energy in interstate commerce, and the information will 
provide the Commission and the public with a more complete picture of 
wholesale market activities which affect jurisdictional services and 
rates, thereby helping to monitor for any market power and to ensure 
that customers are protected from improper conduct.
    33. Likewise, we are collecting information about cost-based power 
sales to obtain a more comprehensive picture of matters under our 
jurisdiction. Currently, we are receiving transaction reports about 
market-based transactions only. While we review the terms and 
conditions of cost-based power sale agreements, we have had an 
information void regarding the actual sales and rates that take place 
under those agreements. We now fill that void.
    34. Commenters such as NARUC, PJM, and TDUS applaud the 
Commission's initiative and the enhanced price transparency the rule 
will foster. Other commenters express concern that disclosure of the 
data reported in the Index of Customers will harm them and the market. 
They also contend the rule is burdensome, although they are much more 
concerned about confidential treatment. After reviewing these arguments 
in detail, we find that confidentiality is not warranted. The 
Commission's primary focus is on implementing section 205(c), promoting 
competition and protecting customers, and not on protecting 
competitors. Because almost all the data that will be reported in 
Electric Quarterly Reports are already publicly available \20\ and will 
be 30-120 days old when reported, negative competitive impact from 
disclosure is minimized.
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    \20\ See Attachment B.
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35. Response to Comments

36. Reasons for Data Collection
37. Price Transparency and FPA Section 205 Filing Requirements

38. Comments

    39. Numerous commenters state that posting or reporting price 
information regarding sales at market-based rates is unnecessary. 
Engage states that the Commission has not articulated a sound basis for 
imposing ``greater'' reporting obligations on public utilities. It 
argues that, unless the Commission shows there is a specific need for 
more information or transparency, it is premature to burden the 
industry with having to provide it.\21\ EEI and others \22\ argue that 
there is a mismatch between the data requested and the ends to which 
they will be used.\23\
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    \21\ Engage NOPR Comments at 4.
    \22\ Morgan Stanley, Reliant, APGI, AEP, Dynegy, Engage, 
Excelon, SCE&G, Tenaska.
    \23\ EEI NOPR Comments at 7.
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    40. SCE&G and others note that the Commission only grants market-
based rate authority to those entities that lack market power in the 
relevant geographic and product markets. Thus, they argue, the rates 
charged by these entities are deemed to reflect the operation of market 
forces in a competitive market and are inherently just and reasonable. 
They further argue that, if a customer believes otherwise, it can 
always use the FPA section 206 complaint procedures or the Commission 
can institute its own investigation. SCE&G argues that FPA section 206 
investigations and the higher standard for approving applications for 
market-based rate authorization \24\ make it unnecessary for the 
Commission to require the posting of data on individual market-based 
transactions.\25\
---------------------------------------------------------------------------

    \24\ SCE&G (NOPR comments at 4) cites a Staff Position Paper in 
Docket No. EX01-4-000 issued on October 1, 2001, as supporting more 
stringent standards for approving market-based rates.
    \25\ SCE&G NOPR Comments at 4, 5.
---------------------------------------------------------------------------

    41. Williams and others argue that the Commission has flexibility 
in satisfying the FPA section 205 requirements for filing and posting 
of terms, conditions and rates. These commenters argue that the data 
required to satisfy the FPA section 205 requirements are different from 
those required to monitor the market, and the two should not be mixed. 
They state that the Commission's precedent for the filing of individual 
agreements was based on a narrow justification.\26\ They argue that the 
current transaction reports filed by power marketers more than satisfy 
the needs of FPA section 205. They argue that, if stricter reporting is 
needed from traditional utilities, this is not an adequate reason to 
burden power marketers.\27\
---------------------------------------------------------------------------

    \26\ Williams NOPR Comments at 26.
    \27\ Williams NOPR Comments at 25.
---------------------------------------------------------------------------

    42. By contrast, APPA states that the Index of Customers ``will 
afford substantial savings to filing utilities, impose uniform 
requirements on all types of public utilities, and provide much needed 
data to customers and the public in a much more accessible format.'' 
\28\
---------------------------------------------------------------------------

    \28\ APPA NOPR Comments at 1.
---------------------------------------------------------------------------

43. Commission Conclusion

    44. The Commission concludes that the reporting requirements 
adopted in this final rule are consistent with public utilities' filing 
obligations under FPA section 205(c). These requirements will provide 
transparency of prices and other information for both market-based and 
cost-based transactions. As shown on Table 1, different types of filing 
requirements currently apply to public utilities depending on whether 
the seller is a traditional utility or a power marketer, on whether the 
sale is short-term or long-term, and on whether the sale is market-
based and cost-based. Based on the increase in transactions and the 
current state of information technology, we believe that the new 
reporting and filing formats are a better way to satisfy FPA section 
205(c) both substantively and procedurally (i.e., electronically rather 
than through paper formats). The current transaction reporting was 
designed at a time when market-based rates made up a very small part of 
trade in the electric power industry and the Internet was not a primary 
means of transferring and sharing information. We agree with APPA that 
the electronic filing of what we are now referring to as the Electric 
Quarterly Report will enhance the public availability of transaction 
information and secondarily will provide useful information for the 
Commission's market oversight and monitoring efforts.
    45. Attachment B, adapted from Attachment A to the Data Sets Order, 
shows all the data elements required to be reported in Electric 
Quarterly Reports and also identifies existing Commission regulations 
and orders that require the filing and public disclosure of the same 
data.
    46. The argument that the reporting requirements are not necessary 
because the Commission has approved the rates as just and reasonable 
overlooks several points. The Commission has held that the approval or 
acceptance of an umbrella market-based rate tariff, in

[[Page 31049]]

conjunction with the filing of quarterly reports, satisfies public 
utilities' filing obligations under FPA section 205(c).\29\ The 
Commission has considerable discretion as to both the content and 
timing of filing requirements under section 205(c) and we conclude that 
the transparent price data required by section 205(c) and as reflected 
in this rule will better help the Commission in monitoring the 
reasonableness of prices and undue discrimination in the marketplace 
and also assist the public in filing complaints.\30\ Without good 
information about energy transactions, it is difficult for anyone to 
prepare a well-documented complaint. In addition, an important goal of 
this rule is to convert the Commission's existing agreement filing and 
transaction data filing requirements into an electronic format. For 
these reasons, we believe that having these data reported, and having 
them reported in a more accessible format, will benefit the development 
of robust power markets and provide better protection of customers.
---------------------------------------------------------------------------

    \29\ See Power Company of America, L.P. v. FERC, 245 F.3d 839, 
845-846 (D.C. Cir. 2001), which affirmed the termination of short-
term market-based power sales by power marketers without 60-days' 
prior notice. Prior notice was not required because the agreements 
were not required to be filed. Instead, power marketers file 
umbrella tariffs and after-the-fact quarterly reports.
    \30\ Any provisions in agreements that purport to bind the 
Commission to a standard other than the just and reasonable standard 
of FPA section 206, and that are not explicitly ruled upon and 
accepted by the Commission, will not be binding on the Commission.
---------------------------------------------------------------------------

47. Information about Cost-based Transactions under Section 205(c) of 
the FPA

48. Comments

    49. Whereas many commenters opposed the collection and publication 
of market-based power sales data, AEP, FPL and Consumers Energy argue 
that the Commission need not collect data about their cost-based power 
sales agreements. These commenters argue that actual rate and 
transaction data are not currently reported about cost-based power 
sales and, as the Commission's current filing requirements satisfy the 
requirements of FPA section 205(c), this shows that these data need not 
be reported to satisfy the FPA. They argue that confidentiality 
arguments are equally applicable to cost-based agreements,\31\ and 
argue that the data are not needed for market monitoring, as the 
maximum rates are cost-based. They argue, further, that these rates 
have been reviewed by the Commission, and they are not the result of 
market power. They also point out that, if the Commission were not to 
adopt the proposed rule, it would still have authority to request the 
necessary data to fulfill its market monitoring functions for cost-
based power sales agreements.\32\ They argue that the Commission has 
the discretion to determine what is necessary to satisfy the filing 
requirements of the FPA, and has used that discretion many times in the 
past.\33\ They argue that nothing has changed, nor are there any public 
policy reasons for the reporting of cost-based transactions.\34\NYSEG 
argues that pre-2000 agreements should not be reported.\35\ Likewise, 
Pinnacle states that the Index of Customers should be filed only on a 
go forward basis.
---------------------------------------------------------------------------

    \31\ FPL NOPR Comments at 1, 5, 7-8.
    \32\ FPL NOPR Comments at 4.
    \33\ FPL NOPR Comments at 5-6.
    \34\ FPL NOPR Comments at 6-7.
    \35\ NYSEG Data Sets Comments at 1.
---------------------------------------------------------------------------

50. Commission Conclusion

    51. FPL is correct that the Commission does not currently require 
public utilities to report transaction data on cost-based power sales. 
However, this does not mean that the Commission is precluded from 
determining that reporting of this information is appropriate under the 
FPA.
    52. We disagree with the assertion that nothing has changed to 
warrant reporting about cost-based rate transactions. First, the volume 
of trade and the variety of products and services sold in wholesale 
markets has increased significantly since the time the current 
requirements for reporting cost-based transactions were designed. 
Second, only with the advent of sophisticated business information 
systems and the ease of information transfer and sharing on the 
Internet has it become practical to make actual rate information open 
to public inspection for many of these transactions. Moreover, there 
are a number of ``cost-based'' rate agreements on file at the 
Commission for which the actual rate is not specified. These agreements 
include split-the-savings rates, discounts below a maximum rate, and 
formula rates. Under the new filing requirements, the actual rate being 
charged under these agreements will now be reported. We conclude that 
cost-based transaction data should be filed to provide the public with 
more accurate information as to the rates actually charged.
    53. We also reject the suggestion that pre-2000 agreements need not 
be reported or that the data need only be filed on a go forward basis. 
The reporting requirement is for any agreement in existence (not 
expired) as of the reporting period. Contract data for pre-2000 
agreements will be included in each public utility's Electric Quarterly 
Report filed using the final software now under development, and 
without subsequent revision will remain included in all subsequent 
Electric Quarterly Reports until the agreement is terminated. The 
Commission is trying to create a comprehensive picture of all 
jurisdictional sales. Eliminating pre-2000 data would prevent that from 
happening. To avoid imposing an additional burden on industry, the pre-
2000 contract data will not be collected before the final software is 
fully developed and implemented.
54. The Transaction Data Will Also Be Useful for Market Monitoring 
Purposes.

55. Comments

    56. EEI and others argue that the Commission is seeking transaction 
data to conduct market monitoring functions and that the data will not 
be useful in that endeavor\36\. Edison Mission states that it is 
unclear how these particular data sets achieve the Commission's 
objectives and that this exemplifies the continuing dissonance between 
the policy objectives of the Commission and the proposed data sets, and 
underscores its position that the administrative burden associated with 
the reporting requirements outweighs any expected benefits.\37\
---------------------------------------------------------------------------

    \36\ EEI NOPR Comments at 9.
    \37\ Edison Mission Data Sets Comments at 4.
---------------------------------------------------------------------------

    57. EEI states that there is a danger in isolating segments of the 
wholesale industry and imposing reporting requirements that other 
segments do not have.\38\ As an example, EEI states that public power 
utilities do not have to report, and, as ``recently been borne out,'' 
public power utilities may manipulate the market.\39\ Similarly, APGI 
states that the California and Pacific Northwest refund proceedings 
make clear that many of the significant players in the bulk power 
markets are not subject to the Commission's jurisdiction and would not 
file an Index of Customers under the Commission's proposals. APGI 
argues that incomplete data will make analysis of the markets for 
legitimate purposes difficult because the market data will be 
incomplete. EEI and Southern contend that streamlining filings and 
market monitoring cannot be separated. Therefore, EEI and Southern 
contend, the Commission should focus on the larger and more important 
market monitoring issue.\40\ EEI contends that the need for and type of 
information required will become apparent once

[[Page 31050]]

markets are in place.\41\ EEI contends that the transaction data are 
irrelevant, if not placed in the context of barriers to entry, load 
response, and net long versus net short trades.
---------------------------------------------------------------------------

    \38\ EEI NOPR Comments at 9.
    \39\ EEI NOPR Comments at 9.
    \40\ EEI NOPR Comments at 10.
    \41\ EEI NOPR Comments at 10.
---------------------------------------------------------------------------

    58. Dynegy suggests that, in lieu of the transaction data proposed 
in the NOPR, the Commission should consider alternative means of 
monitoring the market, such as its Dynegy Direct on-line trading 
platform. These platforms, which Dynegy states the Commission has 
access to, provide real-time gas and electric commodity price 
information from around the country. Dynegy states that the Commission 
should make use of this meaningful information as opposed to the 
meaningless transaction data.\42\ Enron suggests market monitoring 
would be better served if the Commission required the posting of 
outages, load flow studies, generation injection, consumption at nodes, 
and transmission system configuration. Such physical data, Enron 
contends, provide a better basis for price determination.\43\ Enron 
also notes that the Commission's market monitoring goals may be better 
served by the removal of market barriers and the implementation of 
clear and consistent interconnection policies rather than adopting new 
reporting requirements.\44\ Duke summarized its stance by recommending 
that the Commission should narrow its focus on information collected, 
and instead focus more on ``global market trends'' to monitor the 
markets.\45\
---------------------------------------------------------------------------

    \42\ Dynegy NOPR Comments at 7.
    \43\ Enron NOPR Comments at 9.
    \44\ Enron NOPR Comments at 10.
    \45\ Duke Data Sets Comments at 7.
---------------------------------------------------------------------------

59. Commission Conclusion

    60. While the Commission agrees that the reporting of transaction 
data proposed in this rulemaking may be used to help monitor the 
market, this is but a small piece of a much larger information 
assessment and monitoring effort the Commission will undertake. The 
Commission is already comprehensively assessing what information is 
currently filed by all the entities we regulate (electric, gas, and 
oil), what we no longer need to have filed for market monitoring 
purposes, and what will be needed in the future for comprehensive 
market monitoring purposes. The primary purposes of the reporting 
requirements adopted in this rule are to streamline and refine the 
current reporting requirements for public utilities and assure greater 
consistency in public utility compliance with FPA section 205(c).
    61. EEI is correct that the transaction data reporting does not 
cover all transactions, i.e., sales made by entities not subject to the 
Commission's rate jurisdiction under FPA sections 205 and 206. Congress 
has determined that FPA section 205(c) requirements extend only to 
public utility sellers. This rule is consistent with the Commission's 
statutory authority under FPA section 205(c). Moreover, while these 
limitations affect the secondary benefits of the proposal (i.e., market 
monitoring) they do not interfere with the primary benefit of the 
proposal (i.e., enhancing the rate information disclosed to the public 
under FPA section 205(c)).
    62. The Commission will consider the commenters' suggestions on 
approaches to market oversight as it continues to expand this function. 
However, with respect to the commenters' suggestion that we rely on a 
single trading platform for our market monitoring data, while we 
believe that such platforms provide excellent real-time market data, 
they represent only one of the many sources of data that will support 
an effective market monitoring function.
63. The Commission Will Not Defer Action Until Completion of a 
Comprehensive Review of Market Monitoring Functions.
    64. A number of commenters argued that the Commission should 
postpone action on a final rule until we complete a comprehensive 
assessment of our market monitoring efforts. In response to these 
arguments, the Data Sets Order included the following statement:

[w]e find these arguments without merit because, although the 
Commission has not completed its comprehensive review of market 
monitoring data, we believe that the information proposed to be 
reported would be the minimum needed for market monitoring purposes, 
even if we later determine that additional data also will be 
necessary. Moreover, as we noted in the NOPR, we believe that the 
proposed reporting requirements would improve the quality of 
information reported to the Commission by prescribing that public 
utilities report information in a consistent, accessible format.\46\

    \46\ Data Sets Order. FERC Stats. & Regs. para.35,541 at 35,804.
---------------------------------------------------------------------------

65. Commission Conclusion

    66. As noted above, the Commission is currently performing a 
comprehensive analysis of current information filings and what will be 
needed in the future. Theoretically, it may be preferable to wait and 
undertake the Part 35 ``clean-up'' at the same time. However, as a 
practical matter we are faced with a very rapidly changing marketplace 
and a lack of quality and consistency in what public utilities 
currently are filing pursuant to their market-based rate 
authorizations. The comprehensive information assessment we are 
undertaking will take more time to complete and we cannot afford to 
delay implementation of any realignment of our filing requirements, in 
light of current market conditions, including recent market 
dysfunctions in the West and major utility bankruptcies.
    67. We reject the implication that the Commission cannot justify 
revising its reporting requirements unless it undertakes a 
comprehensive review of its market monitoring program. Commission 
reporting requirements rarely, if ever, spring from a single, 
comprehensive initiative. They evolve over time as the Commission's 
experience and understanding grows. For example, the Commission's 
requirements for market-based rates have evolved over the past 14 years 
and continue to change.\47\ If the Commission had to wait until all 
things were known or decided before taking its first step, it would not 
be able to adequately protect customers pursuant to its statutory 
obligations under the FPA.
---------------------------------------------------------------------------

    \47\ E.g., Investigation of Terms and Conditions of Public 
Utility Market-Based Rate Authorization, 97 FERC para. 61,220 
(2001).
---------------------------------------------------------------------------

    68. Further, as the Commission develops its market oversight and 
monitoring functions, we will explore what additional information is 
needed to enhance our market monitoring abilities, including ways to 
obtain relevant information about transactions in which non-public 
utilities are sellers. But we will not delay implementing the improved 
data reporting requirements adopted in this rule simply because non-
public utilities are not covered by the rule. The Commission is 
aggressively pursuing the important market monitoring issues raised by 
EEI and Southern. However, although this information is likely to be a 
core component of the Commission's market monitoring program, our 
adoption of this final rule need not await these developments.
    69. Finally, while the FPA's long-standing statutory mandate is 
unchanged, the Commission must adapt its filing requirements for public 
utilities to keep pace with recent growth in the number of transactions 
and in available information technology. The revised filing 
requirements promulgated in this final rule are needed so that the 
Commission can continue to properly fulfill its statutory 
responsibilities.

[[Page 31051]]

70. Electric Quarterly Reports Will Be Implemented in Two Phases

71. Comments

    72. Several commenters \48\ note that the Commission has not issued 
the Index of Customers Manual and ask the Commission for a Technical 
Conference. EEI, Southern, and Enron \49\ request participation in the 
Technical Working Groups that the Commission suggested might follow 
issuance of the NOPR. EEI and Southern request that the Technical 
Working Groups include industry representatives. These representatives, 
EEI states, can also provide the Commission with input as to the impact 
Index of Customers will have on the industry.\50\ EEI suggests 
Technical Working Group topics could include: how to report prices 
based on indices; \51\ how to report pricing information not available 
until after the reporting period; how to report blended prices; how to 
report long-term agreements filed with the Commission; and settlement 
agreements/grandfather agreement reporting.\52\ FirstEnergy supports 
EEI's position but believes that the Technical Working Groups should 
meet before issuance of a final rule.\53\
---------------------------------------------------------------------------

    \48\ EEI, Southern, Enron, FirstEnergy, PSEG, Consumers Energy.
    \49\ EEI NOPR Comments at 2, Southern NOPR Comments at 19, Enron 
NOPR Comments at 6, 7.
    \50\ EEI NOPR Comments at 6.
    \51\ EEI NOPR Comments at 6.
    \52\ EEI NOPR Comments at 7.
    \53\ First Energy NOPR Comments at 3.
---------------------------------------------------------------------------

    73. EEI is concerned that the NOPR is unclear about the parameters 
of the data to be reported. For example, EEI seeks clarification as to 
which services and/or markets must be reported: long and/or short-term; 
day ahead, 10-hour ahead, hour ahead, 10-minute ahead and/or 5-minute 
ahead markets; ancillary services; and new services.\54\ Consumers 
Energy states several of the data sets would be difficult to obtain, 
such as buyers' DUNS numbers.\55\
---------------------------------------------------------------------------

    \54\ EEI NOPR Comments at 8.
    \55\ Consumers Energy NOPR Comments at 5. ``DUNS numbers'' refer 
to the Data Universal Numbering System, maintained by Dunn and 
Bradstreet.
---------------------------------------------------------------------------

74. Commission Conclusion

    75. These comments were filed in response to the NOPR. The issuance 
of the Data Sets Order, issued subsequent to the NOPR, resolved a 
number of these questions, clarified issues about the data sets, and 
gave the content information that a manual would have had.
    76. Before the final software for the Electric Quarterly Report is 
implemented, there will be an opportunity for utilities to test it and 
provide feedback. Instructions for the final format of the Electric 
Quarterly Report will be issued with the implementation of the 
software. This matter is further discussed in the implementation 
section. Issuance of this final rule need not await these developments. 
As discussed above, the Electric Quarterly Reports for the filing 
periods ending July 31, 2002 and October 31, 2002, will use the FERC 
electronic filing system (available on the FERC Internet Web site, 
www.ferc.gov) using the link labeled e-Filing. A sample Microsoft Excel 
format document will be posted on the FERC internet site prior to the 
filing period ending July 31, 2002. In the near future, the Commission 
will issue an instruction manual to govern the filing of the July 31, 
2002 and October 31, 2002 Electric Quarterly Reports.

77. Confidentiality Issue

    78. While NARUC, TDUS, and PJM support the Commission's proposals 
and the enhanced price transparency they will bring about, other 
commenters argue that we should extend confidential treatment to cover 
market-based transactions to prevent harm to competitors and to the 
market generally.
    79. The Commission finds that the disclosure requirements proposed 
in the NOPR are appropriate to give customers better information to 
benefit from competitive power markets, and the disclosure requirements 
adopted in this rule differ from the proposals in the NOPR in only one 
respect. Points of Delivery (PODs) will be reported at the level of 
detail specified in the agreement. With this change, the Commission 
believes that the information that will be disclosed better fulfills 
the mandate of FPA section 205(c) to make rate and agreement 
information available to the public ``in a convenient form and place,'' 
and will enhance competitive markets.
80. The Transaction-Specific Information Is Not Commercially Sensitive 
and Will Not Be Given Confidential Treatment

81. Comments

    82. Some commenters applaud the Commission's efforts to make public 
utility rate filings more transparent. For example, NARUC states that 
competition and robust markets demand more, not less, transparency of 
data. It applauds FERC for giving priority to this issue and states 
that the greater transparency that the Commission's proposals will 
provide will be helpful not only to the Commission, but to state 
Commissions and the public.\56\ NARUC states that transparency is 
important to ensure well-functioning electricity markets and to ensure 
the integrity of electricity markets.\57\ Likewise, TDUS states that 
there is a need for greater data transparency in competitive wholesale 
markets.\58\ PJM also states its support for the Commission's proposals 
and for the level of detail provided by the proposed data sets.\59\ PJM 
states that the ``principle benefit of the proposed rulemaking is its 
potential to make more market information public and to make it 
available in a much more accessible, convenient, and usable form.'' PJM 
views this as helpful to its own market monitoring activities and as 
even more important to the public interest than the burden reductions 
achieved by the rule.\60\
---------------------------------------------------------------------------

    \56\ NARUC Data Sets Comments at 2-3.
    \57\ Id.
    \58\ TDUS NOPR Comments at 8, 9.
    \59\ PJM Data Sets Comments at 2.
    \60\ Id.
---------------------------------------------------------------------------

    83. Southern and others argue \61\ that disclosure of data on power 
sales could cause competitive harm, and that there is no countervailing 
policy requiring disclosure.\62\ Williams argues that the proposed 
mandatory disclosure of sensitive and confidential commercial and 
financial information would create unwarranted market risks and may 
undermine competition.\63\
---------------------------------------------------------------------------

    \61\ Southern NOPR Comments at 5, 9, FP&L, NOPR Comments at 3, 
Mirant NOPR Comments at 1, Pinnacle NOPR Comments at 8-10, PSEG NOPR 
Comments at 4, 10-12.
    \62\ Southern NOPR Comments at 5, 9.
    \63\ Williams NOPR Comments at 1, 11-14.
---------------------------------------------------------------------------

    84. Southern contends that competitors would be harmed by ``their 
competitors'' free access to information about their supply curve and 
about their innovative product and marketing efforts that directly 
benefit their customers.'' \64\ Southern contends this would harm 
customers because public utilities will be less likely to engage in 
such innovative efforts.\65\ Moreover, Southern argues customers are 
likely to be harmed by the disclosure of information about the prices 
they will pay and because the required disclosures will facilitate 
collusion among suppliers on output and pricing decisions.\66\ In 
addition, National Grid

[[Page 31052]]

argues that the regulated industry has invested large sums in the 
development of trading strategies and risk management tools and this 
should not be made available to free rider competitors.\67\
---------------------------------------------------------------------------

    \64\ Southern NOPR Comments at 4. An example of a ``supply 
curve'' can be found in Atlantic City Electric Company and Delmarva 
Power & Light Company, 80 FERC para. 61,126 at 61,406 (1997) where 
the applicants listed all of the generating units that were their 
potential suppliers in ascending cost order and referred to this 
list as the suply curve.
    \65\ Southern NOPR Comments at 4, Williams NOPR Comments at 16-
17. CMS, Reliant, EEI, and Tenaska make similar claims.
    \66\ Southern NOPR Comments at 4, Williams NOPR Comments at 17-
19.
    \67\ National Grid NOPR Comments at 5.
---------------------------------------------------------------------------

    85. Williams argues \68\ that the Commission must exercise its 
broad discretion under FPA section 205(c) in a manner that not only 
respects its obligations under that provision but also its obligations 
under Freedom of Information Act (FOIA) \69\ and the Trade Secrets 
Act.\70\ Williams further argues that the Trade Secrets Act prohibits 
the public release of information qualifying under FOIA Exemption 4, 
i.e., the exemption for ``trade secrets and commercial or financial 
information obtained from a person and privileged or confidential.'' 
Thus, Williams argues that any rule that mandates public disclosure 
without exception, thereby removing an entity's opportunity to show 
that the information is exempt under FOIA and protected from disclosure 
by the Trade Secrets Act, is necessarily unlawful.\71\
---------------------------------------------------------------------------

    \68\ Williams NOPR Comments at 4.
    \69\ 5 U.S.C. 552 (1994).
    \70\ 18 U.S.C. 1905 (1994).
    \71\ Williams NOPR Comments at 3-4, 20-24.
---------------------------------------------------------------------------

    86. SCE&G fears that with transaction data available in electronic 
format, public utilities will have the ability to develop an accurate 
understanding of the trading policies, strategies, and practices of 
their competitors. Thus, allowing unfettered access to such data, could 
have the effect of changing the behavior of market participants to the 
detriment of the market and consumers. For example, it argues that 
public utilities might refrain from conducting transactions or signing 
service agreements with new customers near the end of a reporting 
quarter and instead wait until a new quarter has begun in order to 
delay the availability of information to its competitors.\72\
---------------------------------------------------------------------------

    \72\ SCE&G NOPR Comments at 6.
---------------------------------------------------------------------------

87. Commission Conclusion

    88. The argument that the rule calls for the disclosure of 
commercially sensitive information that should be given confidential 
treatment overlooks the key fact that nearly all of the information 
claimed to be confidential is already being publicly disclosed on a 
quarterly basis pursuant to the Commission's regulations and as set 
forth in prior determinations.\73\ This can best be illustrated by 
Attachment B to this rule, a table demonstrating that, in main part, 
the information to be reported in Electric Quarterly Reports is 
currently required to be reported quarterly by public utilities and 
publicly disclosed.
---------------------------------------------------------------------------

    \73\ Attachment B identifies the relevant Commission regulations 
and prior determinations that each data element is to be made 
publicly available.
---------------------------------------------------------------------------

    89. The Data Set Order established two new data elements: DUNS 
number, and the contact's e-mail address. No objections were made to 
either of these being made publicly available.
    90. The OASIS SC&P Document requires the reporting of customers' 
DUNS numbers as part of OASIS' electronic data interchange information. 
The Commission will now also require DUNS numbers for all customers and 
sellers reported in Electric Quarterly Reports. This puts both the 
power sale and the transmission reporting requirements on the same 
basis. The Commission is using public utility DUNS numbers to reduce 
possible confusion among similarly named, but different, providers of 
service. DUNS are available at no cost.\74\
---------------------------------------------------------------------------

    \74\ DUNS numbers are available at http://www.dnb.com.
---------------------------------------------------------------------------

    91. The Commission is also requiring for the first time the 
contact's e-mail address. The Commission is proposing that utilities 
will file Electric Quarterly Reports using the Internet. E-mail uses 
the Internet, and it is a common business tool available to the 
industry. E-mail will facilitate any discussions between the Commission 
and the public with regard to the formatting or completeness of the 
filed material.
    92. The controversy over disclosure is limited to those that 
concern rates and does not concern the new elements. But FPA section 
205(c) requires public utilities to disclose their rates and contracts 
for all transmission and sales subject to the jurisdiction of the 
Commission. As a result, these rate elements as well as the data public 
utilities currently file are not protected from disclosure under 
Exemption 4 of the FOIA or by the Trade Secrets Act. Although the 
Commission has discretion to determine the time and form for 
disclosure, the underlying decision to disclose rate and contract 
information was made by Congress.
    93. Because nearly all of the information at issue is already 
publicly available, we give little credence to predictions of 
competitive harm, based on conjecture, and which are not supported by 
evidence of actual harm from the Commission's current reporting 
requirements. Moreover, the allegations of harm are exactly the kind of 
``conclusory and generalized allegations of substantial competitive 
harm'' that do not suffice to show substantial harm to a company's 
competitive position or to competition in general.\75\
---------------------------------------------------------------------------

    \75\ See, e.g., Center for Auto Safety v. NHTSA, 244 F.3d 144, 
148 (D.C. Cir. 2001) (Center for Auto Safety). Commercial 
information is ``confidential'' under Exemption 4 of FOIA if its 
disclosure is likely either to: (1) Impair the government's ability 
to obtain necessary information in the future or (2) cause 
substantial harm to the competitive position of the person from whom 
the information was obtained. As to ``substantial harm,'' a company 
making this claim must ``show with `sufficiently specific' evidence 
that disclosure is likely to cause substantial competitive harm.'' A 
company ``need not conduct a sophisticated economic analysis of the 
likely effects of disclosure,'' but ``conclusory and generalized 
allegations of substantial competitive harm'' will not suffice.
---------------------------------------------------------------------------

    94. We also disagree with predictions that disclosure would be 
harmful to the market generally. To the contrary, we believe that 
disclosure will promote competition and make the market operate more 
efficiently. We agree with NARUC that competitive and robust markets 
demand more, not less, transparency of data and this final rule 
advances that goal. As to concerns that disclosure might lead to 
illegal price fixing and collusion, the Commission and other federal 
agencies will take strong actions if public utilities engage in such 
illegal acts. However, we reject the arguments that this will be the 
outcome of providing the public with better price information. To the 
contrary, the data will help the Commission and the public detect 
instances of undue discrimination and abuses of market power.
    95. Although nearly all of the information at issue is already 
publicly available under the Commission's existing filing requirements, 
with the requirements we are adopting in this final rule, the public 
will be provided with better access to the information and the format 
will make the information more consistent and understandable. As a 
result, we find that the filing requirements we are adopting in this 
final rule better meet the statutory requirement of FPA section 205(c) 
to make rate information accessible in a convenient place and form.
    96. Our decision to disclose rate information is consistent with 
judicial directives to focus on the needs of the overall market, rather 
than focusing on protecting the interests of individual competitors 
within the market.\76\ For

[[Page 31053]]

example, in Alabama Power Company v. FPC, 511 F.2d 383, 390-91, (D.C. 
Cir. 1974) (Alabama Power), the court affirmed the Commission's refusal 
to amend a rule that required affected utilities to publicly disclose 
their monthly Form No. 423 reports of fuel purchases. The court in 
Alabama Power considered various arguments that ``disclosure of 
information would lead to bargaining disadvantages in future fuel 
contract negotiations,''\77\ as well as opposing arguments that any 
bargaining disadvantage as a result of disclosure would merely reflect 
the removal of information imperfections in an otherwise competitive 
market thereby facilitating efficient allocation of resources.\78\
---------------------------------------------------------------------------

    \76\ See Open Access Same-Time Information System and Standards 
of Conduct, 83 FERC para. 61,360 at 62,456 & n.48 (1998) in which 
similar concerns led us to unmask source and sink data reported on 
utilities' OASIS sites.
    This focus on the competitive process, rather than on the 
fortunes of particular competitors was also present in Town of 
Concord v. Boston Edison Company, 915 F.2d 17 (1st Cir. 1990), cert. 
denied, 499 U.S. 931 (1990), where the court found that,
    a practice is not ``anticompetitive'' simply because it harms 
competitors. After all, almost all business activity, desirable and 
undesirable alike, seeks to advance a firm's fortunes at the expense 
of its competitors. Rather, a practice is ``anticompetitive'' only 
if it harms the competitive process. It harms that process when it 
obstructs the achievement of competition's basic goals--lower 
prices, better products, and more efficient production methods. [915 
F.2d at 21, 22.]
    \77\ Alabama Power, 511 F.2d at 390.
    \78\ Id.
---------------------------------------------------------------------------

    97. The court concluded that the dissemination of information in a 
competitive market tends to ``facilitate prompt adjustment to the 
market clearing price by all parties to transactions.''\79\ Here, 
commenters opposing disclosure fear that, by making this information 
more accessible and easy to understand, its disclosure will take on 
added importance. However, easy access to contract and transaction data 
will give customers a basis on which to compare a variety of suppliers 
and monitor for market power and anti-competitive behavior. This 
information will allow customers to reap further benefits from open 
access transmission by giving them improved tools to use in making 
buying decisions. In addition, the Commission hopes that making this 
information more understandable and accessible will promote competition 
and confidence in the fairness of the market.
---------------------------------------------------------------------------

    \79\ Id. at 391, n.13.
---------------------------------------------------------------------------

    98. Disclosure will help the public detect and bring to the 
Commission's attention any instances of undue preferences, 
discrimination, or market power abuse by public utilities\80\ and will 
promote confidence in the fair operation of the market. Moreover, the 
mere fact that this scrutiny will occur will have a prophylactic effect 
and discourage improper conduct. However, the Commission can only take 
action to remedy abuses, if the Commission has available adequate 
information to detect them. In our view, the benefits of disclosure 
strongly outweigh the generalized claims of potential harm to 
competitors, unsupported by actual evidence of harm to competitors or 
to the market.\81\
---------------------------------------------------------------------------

    \80\ We note that the Supreme Court recently affirmed the 
Commission's Order No. 888 and the Commission's authority to remedy 
undue discrimination in the provision of interstate transmission 
services. See note 17, supra. The Commission is equally concerned 
about undue discrimination in wholesale power sales and in the 
provision of other jurisdictional services.
    \81\ The Commission recognizes that any person submitting a 
document to the Commission may request privileged treatment by 
claiming that some or all of the information contained in a 
particular document is exempt from the mandatory public disclosure 
requirements of the Freedom of Information Act. See 18 CFR 388.112. 
Nevertheless, as explained, the information required to be filed by 
this rule must be public to achieve the purpose of its being filed 
in the first instance. Therefore, our expectation is that the 
Commission will deny requests for confidential treatment of these 
materials.
---------------------------------------------------------------------------

99. There Is Good Reason to Treat Data in Electric Quarterly Reports 
Differently than Natural Gas Sales Data

100. Comments

    101. Southern cites the Commission's Reporting of Natural Gas Sales 
to the California Market, 96 FERC para. 61,119 at 61,466-68 (2001) 
order on reh'g, 97 FERC para. 61,029 (2001) (California Gas Order), 
where the Commission found that gas sellers' contract and transaction 
data fall under FOIA Exemption No. 4 as trade secrets and commercial or 
financial information obtained from a person and privileged or 
confidential; and that potential harm from public disclosure outweighs 
any public interest.\82\ Similarly, Mirant argues that these kinds of 
data are treated confidentially by the Department of Energy, PJM 
Interconnection LLC, New York ISO, ISO New England, and the California 
ISO.\83\ Thus, they argue that the Commission should make the same 
finding here.\84\
---------------------------------------------------------------------------

    \82\ Southern NOPR Comments at 8, 19-24.
    \83\ Mirant NOPR Comments at 2, 5-7, 9-11.
    \84\ AEP NOPR Comments at 5,7, EEI NOPR Comments at 4, FP&L NOPR 
Comments at 3, Reliant NOPR Comments at 3.
---------------------------------------------------------------------------

102. Commission Conclusion

    103. The Commission found that gas sellers' contract and 
transaction data could be considered trade secrets and commercial or 
financial information and that disclosure is likely to cause 
substantial harm to the competitive position of the person from whom 
the information was obtained. The Commission then found that the 
potential of competitive harm from public disclosure outweighs any 
public interest in disclosure of data concerning individual sales 
transactions, and stated that the Commission would not disclose 
individual sales information to the public.\85\ The finding of 
competitive harm, however, was based on the unregulated nature of much 
of the data sought there. In the California Gas Order, we acknowledged 
that not all parties from whom information was requested were 
jurisdictional under the Natural Gas Act. We further acknowledged that 
it was likely many of the gas sales for which information was requested 
were not or are no longer jurisdictional services under the Natural Gas 
Act. Confidential treatment of natural gas sales data was necessary in 
the California Gas Order to encourage non-jurisdictional entities to 
provide data to the Commission.
---------------------------------------------------------------------------

    \85\ 96 FERC at 61,466-468.
---------------------------------------------------------------------------

    104. By contrast, the regulations and reporting requirements 
adopted in this final rule apply only to public utilities and are being 
adopted pursuant to FPA section 205(c). Under this statutory authority, 
the Commission is prescribing rules and regulations for the format 
jurisdictional public utilities must follow when they file with the 
Commission data related to their jurisdictional activities. The 
Commission is not applying this rule to non-public utilities or non-
jurisdictional services.
    105. The purpose of the instant rule differs from the purpose of 
the California Gas Order proceeding. The California Gas Order had the 
limited objective of requesting data from the industry to aid in 
prescribing rules and regulations necessary to carry out the 
Commission's responsibilities, and seeking information to serve as a 
basis for recommending further legislation to the Congress. The 
Commission terminated the data collection upon determining the 
conditions no longer required additional reports.\86\ This is in 
contrast to the purpose of this rule, which is to establish rules and 
regulations governing the required format and content of contract and 
transaction data for purposes of reporting and public disclosure 
pursuant to FPA section 205(c). In these circumstances, there is a 
reasoned basis for treating electricity sales differently from the 
cited natural gas sales.
---------------------------------------------------------------------------

    \86\ Reporting of Natural Gas Sales to the California Market, 
notice of decision not to seek extension of reporting requirement, 
67 FR 5585, 98 FERC para. 61,251 (January 30, 2002).
---------------------------------------------------------------------------

    106. Similarly, information collected by the Department of Energy 
is pursuant to different statutory authority. Although ISOs keep bid 
data information confidential for six months, this rule does not 
require the reporting of bid data.

[[Page 31054]]

107. Transparency Regarding the Rates, Terms, and Conditions of Market-
based Power Sales
    108. Southern argues that the NOPR fails to consider that market-
based rates have only been granted in instances where the Commission 
has found that an entity lacks market power to manipulate markets or 
act in an anti-competitive manner.\87\ Thus, it argues, no across-the-
board rule is needed covering a utility's wholesale power sales 
functions.
---------------------------------------------------------------------------

    \87\ Southern NOPR Comments at 18.
---------------------------------------------------------------------------

109. Commission Conclusion

    110. When a public utility applies for authority to make wholesale 
sales at market-based rates, it presents evidence that it either lacks 
market power or has taken adequate steps to mitigate its market 
power.\88\
---------------------------------------------------------------------------

    \88\ See, e.g., Pinnacle West Capital Corp., Arizona Public 
Service Company and APS Energy Services Company, Inc., 91 FERC para. 
61,290 (2000), reh'g denied, 95 FERC para. 61,300 (2001) and 
Pinnacle West Energy Corp., 92 FERC para. 61,248 (2000), reh'g 
denied, 95 FERC para. 61,301 (2001).
---------------------------------------------------------------------------

    111. However, the Commission's market-based rate findings do not 
absolve the Commission from its continuing responsibility to assure 
that rates are just and reasonable. Because the Commission is concerned 
that circumstances may change, it imposes standard conditions on every 
market-based rate approval. The standard conditions include: the 
requirement to file Quarterly Transaction Reports, which are made 
available for public review; and the requirement to submit data on a 
triennial basis to confirm that the public utility continues to lack 
(or has mitigated) market power. The Electric Quarterly Reports will 
enable the Commission and others to ensure that market-based rates 
remain justified over time.
112. Disclosure Does Not Compromise National Security
    113. EEI argues that the Commission needs to be sensitive to 
possible national security consequences from revealing vulnerabilities 
in the nation's infrastructure.\89\
---------------------------------------------------------------------------

    \89\ EEI NOPR Comments at 5-6.
---------------------------------------------------------------------------

114. Commission Conclusion

    115. The Commission takes concerns about revealing vulnerabilities 
in the nation's infrastructure very seriously. Indeed, the Commission 
issued a policy statement in Docket No. PL02-1 on October 11, 2001, 
announcing the removal from the Internet and the Public Reference Room 
of certain documents such as oversized maps that detail the 
specifications of energy facilities.\90\ Subsequently, on December 16, 
2001, the Commission issued a Notice of Inquiry on the possibility of 
amending its rules to address the public availability of critical 
energy infrastructure information.\91\ The information at issue here, 
however, does not present comparable concerns, as it does not reveal 
any system vulnerabilities. We therefore will not grant confidential 
treatment to Electric Quarterly Reports on this basis.
---------------------------------------------------------------------------

    \90\ See Treatment of Previously Public Documents, 97 FERC para. 
61,030 (2001).
    \91\ See 67 FR 3129 (Jan. 23, 2002).
---------------------------------------------------------------------------

116. Proposals That Would Avoid Disclosure of Transaction-Specific Data 
Are Inadequate
    117. CMS argues that, in devising filing rules for power marketers, 
the Commission determined that, to encourage the emergence of a 
competitive wholesale power market, power marketers would not be 
required to follow the same filing requirements as traditional 
utilities. CMS argues that this policy should be retained, because a 
fully competitive power market has not yet emerged.\92\ Morgan Stanley 
argues that power marketers should be allowed to file certain 
transaction information on a confidential basis.\93\
---------------------------------------------------------------------------

    \92\ CMS NOPR Comments at 4.
    \93\ Morgan Stanley NOPR Comments at 9.
---------------------------------------------------------------------------

    118. Williams argues that, in lieu of adopting the proposals in the 
NOPR, the Commission should make only the reporting requirements 
currently applicable to power marketers applicable to non-
marketers.\94\
---------------------------------------------------------------------------

    \94\ Williams NOPR Comments at 4.
---------------------------------------------------------------------------

    119. SCE&G suggests the Commission lengthen the time before 
transactions must be reported. It argues that this would help to 
alleviate concerns over the harm to competitors caused by the 
dissemination of sensitive data.\95\ Engage argues that the Commission 
should extend the reporting interval from quarterly to semi-annually 
and not require disclosure until (30) days after a transaction is 
completed.\96\ Excelon argues that the Commission should ensure that 
data reported is current enough for market analysis, but stale enough 
to prevent harm to competitors filing the information.\97\ Another 
suggested alternative is to have public disclosure of aggregated 
data.\98\ Advocates of this approach argue that disaggregating data 
regarding individual sale transactions offers no benefit.\99\
---------------------------------------------------------------------------

    \95\ SCE&G NOPR Comments at 8, 9.
    \96\ Engage NOPR Comments at 11.
    \97\ Excelon NOPR Comments at 6.
    \98\ Enron NOPR Comments at 9, PSEG NOPR Comments at 5, Pinnacle 
NOPR Comments at 9-10.
    \99\ EEI NOPR Comments at 7.
---------------------------------------------------------------------------

120. Commission Conclusion

    121. None of these suggested alternatives is adequate to meet the 
goals the Commission is seeking to accomplish in this rulemaking. 
Customers need data about power sales to realize the competitive 
advantages of open access transmission and to have confidence that 
markets are competitive. First, as to Williams' suggestion to disclose 
only summary data, this argument is based on the false premise that 
power marketers' quarterly transaction reports currently are limited to 
summary and aggregated data.\100\
---------------------------------------------------------------------------

    \100\ See Enron Power Marketing, 65 FERC para. 61,305 at 62,406 
(1993) (Enron), where the Commission denied Enron's request to file 
aggregated data in Quarterly Transaction Reports.
---------------------------------------------------------------------------

    122. Second, the suggestion to extend the lag before the 
information becomes publicly available overlooks the fact that the 
existing Quarterly Transaction Reports and the Electric Quarterly 
Reports that will replace them already create a lag of 30-120 days. 
This lag reduces any potential harm to competitors that could result 
from the disclosure of price data.
    123. Nor will the Commission allow the data to be aggregated. 
Customers of market-based rate transactions are not each charged the 
same rate. Aggregated data do not provide sufficient disclosure of 
rates to the public. Further, market power is possible not just over a 
market area. It can also be exercised over individual customers. 
Aggregated data would prevent customers from detecting (and filing a 
complaint with the Commission about) improper conduct and would be less 
helpful in promoting competition. We conclude that section 205(c) does 
not allow the aggregation of this information.\101\
---------------------------------------------------------------------------

    \101\ See Maislin Industries U.S. Inc. v. Primary Steel, Inc., 
497 U.S. 116 (1990) (Maislin) and Southwestern Bell Corp. v. FCC, 43 
F.3d 1515 (D.C. Cir. 1995) (Southwestern Bell).
---------------------------------------------------------------------------

    124. Moreover, aggregated data have never been allowed by the 
Commission for power marketers' Quarterly Transactions Reports. In 
Enron,\102\ Enron requested (1) waiver of detailed purchase and sales 
transactions, and (2) permission to report the data on an aggregate 
basis (i.e., without identifying the other parties or the terms of the 
individual transactions) or to file on a confidential basis.\103\
---------------------------------------------------------------------------

    \102\ Id.
    \103\ Id. at 62,404.
---------------------------------------------------------------------------

    125. The Commission denied Enron's waiver requests and directed 
Enron to submit a quarterly informational filing on an unaggregated, 
public basis. Specifically, we stated:

    [w]e will deny Enron's request to modify the reporting 
requirement in any way. Enron

[[Page 31055]]

misreads the Commission's purpose in requiring quarterly reporting 
of a marketer's transactions. None of our orders indicates that the 
purpose for requiring information from power marketers is to assess 
the size and strength of the market. On the contrary, the Commission 
has indicated that informational filings are necessary so that the 
marketer's rates will be on file as required by section 205(c) of 
the FPA, 16 U.S.C. Sec. 824d(c), to evaluate the reasonableness of 
the charges, and to provide for ongoing monitoring of the marketer's 
ability to exercise market power * * * .
    With respect to Enron's request that its informational filings 
be afforded confidential treatment, we note that we previously 
denied a similar request in National Electric Associates Limited 
Partnership, 50 FERC para. 61,378 (1990). In that case, the marketer 
sought to reserve the right to seek confidential treatment of its 
informational reports. The Commission rejected this request, stating 
that section 205(c) of the FPA requires all public utilities, 
including power marketers, to file with the Commission for public 
inspection all rates, charges, classifications and practices, as 
well as any contracts that affect or relate to such charges, 
classifications and practices. For the same reason, we will deny 
Enron's request for confidentiality.\104\
---------------------------------------------------------------------------

    \104\ 65 FERC at 62,406.

    126. On August 9, 1994, in Heartland Energy Services, Inc., 68 FERC 
para. 61,223 (1994), the Commission held Heartland, an affiliate of 
Wisconsin Power and Light Company, to the reporting standards in 
Enron.\105\ Heartland's filing was the first application by an 
affiliated power marketer for open-ended authorization to transact at 
market-based rates.
---------------------------------------------------------------------------

    \105\ See also LG&E Power Marketing, Inc., 68 FERC para. 61,247 
(1994) and Detroit Edison Company, et al., 80 FERC para. 61,348 
(1997).
---------------------------------------------------------------------------

    127. The Commission also rejected the use of aggregated data in 
Commonwealth Electric Company, 78 FERC para. 61,191 (1997). In this 
order, the Commission directed the reporting of prices for short-term 
transactions and the reporting of separate prices for wholesale 
generation, transmission and ancillary services in the quarterly 
reports. Pursuant to Order Nos. 888 and 888-A, the Commission stated:

    [a]ccordingly, we will direct the Applicants to revise their 
market-based power sales tariffs to state explicitly separate prices 
for generation, transmission and ancillary services.\106\
---------------------------------------------------------------------------

    \106\ 78 FERC at 61,813.

---------------------------------------------------------------------------
    128. Further, the Commission stated:

    [W]e are permitting the Applicants to report prices for short-
term transactions * * * in quarterly summaries * * *  the separate 
prices for the unbundled services in such short-term transactions 
should be included in those quarterly summaries.\107\
---------------------------------------------------------------------------

    \107\ 78 FERC at 61,813.

    129. Therefore, the requirement to report disaggregated data is not 
new, and this final rule merely continues our prior practice.
130. Power Marketers and Traditional Utilities Are Treated Equally
    131. Williams suggests, as an alternative to disclosure, that, if 
the Commission wishes to streamline its reporting requirements and move 
toward a uniform system applicable to power marketers and traditional 
utilities alike, it could merely extend the requirement to file 
quarterly transaction reports, currently applicable to power marketers, 
to non-marketers. This approach, it argues, would achieve true 
efficiency while protecting confidential data and promoting 
competition.\108\
---------------------------------------------------------------------------

    \108\ Williams NOPR Comments at 2, 4.
---------------------------------------------------------------------------

    132. Conversely, CMS argues that, in devising filing rules for 
power marketers, the Commission determined that, to encourage the 
emergence of a competitive wholesale power market, power marketers 
would not be required to follow the same filing requirements as 
traditional utilities. This policy should be retained, because a fully 
competitive power market has not yet emerged.\109\ Morgan Stanley 
argues that power marketers should be allowed to file certain 
transaction information on a confidential basis.\110\
---------------------------------------------------------------------------

    \109\ CMS NOPR Comments at 5.
    \110\ Morgan Stanley NOPR Comments at 8, 9.
---------------------------------------------------------------------------

133. Commission Conclusion

    134. In this rulemaking, the Commission affirms the principles 
outlined in Southern. We agree with Williams that there should be 
consistent reporting requirements for both power marketers and 
traditional utilities. We will apply equal filing requirements for both 
traditional utilities and power marketers. These filing requirements 
will provide information consistent with the requirements of FPA 
section 205(c). The public interest in the disclosure of the 
information to be reported is the same regardless of whether the 
agreements and power sales at issue are made by power marketers or 
traditional utilities.
    135. However, this in no way eliminates the need to improve our 
existing Quarterly Transaction Reports. While the Commission could, on 
a case by case basis, address the inconsistencies and inadequacies of 
current quarterly transaction filings, we believe it would be more 
productive and efficient to correct the problems we are experiencing 
regarding the quality of Quarterly Transaction Reports by replacing 
them with the Electric Quarterly Reports mandated by this rule.
136. Burden Issue
137. The Information Collections Do Not Impose an Unreasonable Burden

138. Comments

    139. NARUC states that competition and robust markets demand more, 
not less, transparency of data and it applauds the Commission for 
giving priority to this issue.\111\ It also endorses reducing the 
number of routine agreements to be processed by the Commission so that 
greater resources can be devoted to the complex and important issues 
that arise in competitive markets. These resources are needed, NARUC 
states, because ``achieving well-functioning electricity markets will 
require diligent oversight by both FERC and State utility 
commissions.''\112\ PJM agrees that the revised filing requirements 
will achieve reductions in the administrative burdens on the Commission 
and regulated companies, but views these as less important than the 
greater public benefit that will result from making market information 
available in a much more accessible, convenient, and usable form.\113\
---------------------------------------------------------------------------

    \111\ NARUC Data Sets Comments at 2-3.
    \112\ Id. at 2.
    \113\ PJM Data Sets Comments at 2.
---------------------------------------------------------------------------

    140. The California Commission argues that the Commission's 
electronic filing requirements should complement, not replace, the 
Commission's existing filing requirements. The California Commission 
would have public utilities file Indexes of Customers, but would also 
retain the current requirement for public utilities to file for 
approval of all new agreements, with notice to the public, so that 
third parties such as state Commissions can review those agreements 
before they become effective, and file protests where appropriate.
    141. By contrast, many commenters (e.g., EEI, Avista, Puget, 
Wisconsin, and Otter Tail) state that the transaction data required by 
this rule is a large increase in content and detail as compared to the 
data currently required in power marketers' Quarterly Transaction 
Reports. While they support efforts to minimize the reporting burden 
and to modernize data collection methods in general, they state that 
the Index of Customers will not achieve these goals. Avista, in a 
representative comment states:

    [f]ar from 'minimizing the reporting burden on public 
utilities,' the December 20 Order imposes a reporting requirement 
template

[[Page 31056]]

that will create undue burdens on public utilities and will result 
in the disclosure of commercially sensitive information. Thus, it is 
clear that the Commission's efforts to 'streamline' regulations in 
this proceeding is likely to have a detrimental effect on wholesale 
electric power markets, and should be modified * * * .\114\
---------------------------------------------------------------------------

    \114\ Avista Data Sets Comments at 1.

---------------------------------------------------------------------------
    142. Likewise, Wisconsin Electric states that,

    [t]he proposal will require significant efforts on the part of 
[the utility] * * * to convert all of the relevant data, which is 
currently maintained in disparate databases, into the format 
requested by the Commission. It will also require that Wisconsin 
Electric expend significant resources to develop and maintain the 
database necessary to post the relevant information on its Web site. 
\115\
---------------------------------------------------------------------------

    \115\ Wisconsin Electric Data Sets Comments at 1.

---------------------------------------------------------------------------
    143. Puget and Avista state that the Commission:

    has greatly underestimated the potential reporting burden of the 
proposed requirements and the complexity and cost inherent in 
posting such large volumes of data on utility web sites. FERC should 
reduce the number of proposed data elements and eliminate or 
significantly simplify the requirement to post information on 
utility web sites.\116\
---------------------------------------------------------------------------

    \116\ Puget Data Sets Comments at 4.

    144. Otter Tail argues that the filing requirements would be 
onerous for small entities.\117\ Edison Mission states that the three 
year requirements for maintaining the information in a database adds to 
the cost.\118\
---------------------------------------------------------------------------

    \117\ Otter Tail Data Sets Comments at 2.
    \118\ Edison Mission Data Sets Comments at 3.
---------------------------------------------------------------------------

145. Commission Conclusion

    146. We believe the views expressed by NARUC, TDUS, and PJM more 
accurately assess the burdens and benefits of this final rule than 
those argued by other commenters.
    147. The Commission has balanced the need for data with efforts to 
minimize the burden on filers. Specific comments about the burden of 
creating an electronic file, creating an electronic file of transaction 
data, web-site development and maintenance, and data retention 
requirements are discussed below.
    148. We acknowledge that the filing of transaction data for cost-
based power sales will create an additional burden. However, this 
burden will be offset by the fact that conforming service agreements 
will no longer be filed. In addition, the lack of a standard format in 
the current Quarterly Transaction Reports has led to power marketers to 
submit their reports using a multitude of formats. To the extent power 
marketers use the same format for each quarter's filing, they will have 
to expend time and effort to map their data into the new required 
format. But once a utility's system is mapped to the interim and final 
formats, the burden will be reduced. There will be no more paper to 
print, mail or file. The public utilities will be able to file Electric 
Quarterly Reports with the Commission electronically over the 
Internet.\119\
---------------------------------------------------------------------------

    \119\ Because informational filings are Class I filings under 
our fee structure, no filing fees are currently applicable.
---------------------------------------------------------------------------

    149. The burden of electronically filing contract data each quarter 
is less onerous than the current requirements to file executed copies 
of all service agreements. Since the system is being designed so 
contract data need only be entered once, after the initial filing, only 
certain data about new agreements and terminations will have to be 
reported. In comparison, under our current filing requirements, each 
service agreement must be filed as a rate filing within 30 days of 
commencement of service. Specifically, 18 CFR 35.7 and 35.8 currently 
require that a filer submit an original and five copies of a filing to 
the Commission. Each copy must contain a number of components: first, 
the formal letter of transmittal; second, all other materials and 
information required by these regulations (e.g., the executed service 
agreements); third, a form of notice for the Federal Register; and, 
finally, a copy of the same notice in electronic format (in ASCII text 
or WordPerfect 8.0 format) on a 3\1/2\'' diskette. Also, the filer must 
serve a copy of the filing to the public utility's jurisdictional 
customers (including: other parties receiving service from the public 
utility, state public service commissions, other government agencies, 
etc.).
    150. The current filing requirements for service agreements are 
based on the use of paper copies and are burdensome to both the filing 
parties and the Commission. The replacement of this archaic paper 
format will reduce the burden on filing utilities and the burden on the 
Commission of processing those filings.
    151. The use of Electric Quarterly Reports will also avoid critical 
time delays. Incomplete filings have been a burden for both the filers 
and the Commission, due to lost time in processing and issuance of 
decisions. Omission of any required item could hold up the acceptance 
and processing of the filing (e.g., if the filer omits the diskette, 
the processing stops and a request by the Commission to the filer for a 
proper submittal of the diskette is triggered). The filer must then be 
notified and resubmit the missing component(s) of the filing.
    152. With the implementation of the revised filing requirements 
adopted in this rule, the processing of applications for approval will 
become much more streamlined. The resources currently devoted to 
processing paper filings involving routine noncontroversial matters 
will be freed up and available for further review and evaluation of 
nonconforming rate filings, enhanced market oversight, and other 
important matters. Currently, the Commission receives approximately 
2,500 service agreement filings per year that would be eliminated by 
this order.\120\
---------------------------------------------------------------------------

    \120\ NOPR at 34,075.
---------------------------------------------------------------------------

    153. We reject the suggestion by the California Commission that the 
Index of Customers (i.e., the Electric Quarterly Report) should 
accompany and not replace current rate filings. This proposal would not 
accomplish the Commission's objective of streamlining the process. 
Instead, it would increase the reporting burden on public utilities and 
would retain the Commission's current administrative burden of 
processing these filings without enhancing the level of review. 
Moreover, the filing of standard forms of agreements will provide a 
safeguard to ensure that conforming agreements do not contain 
unreasonable terms and conditions.
    154. Some commenters offer to aggregate the data, which would be an 
additional step on their part, at the same time that they object to the 
reporting unaggregated data as being too burdensome. They also state 
that they could cope with the reporting requirements, if the data are 
kept confidential. These inconsistent arguments suggest that the 
objections raised concerning the reporting burden reflect actual 
disagreement with other aspects of the rule (i.e., confidentiality).
    155. Moreover, maintaining the status quo for the current Quarterly 
Transaction Report is not a viable option. The Government Paperwork 
Elimination Act, Pub. L. No. 105-277, sections 1702-1704, requires that 
every agency develop electronic filing options by October 2003 for all 
of the data it requires to be submitted. Therefore, the Commission is 
required to move to an electronic filing format for all of its data, 
including Quarterly Transaction Reports, which currently are filed on 
paper. With a few exceptions discussed elsewhere, this data collection 
primarily involves an adaptation of our current filing requirements to 
an electronic format. Moreover, public utilities are currently 
converting their data from

[[Page 31057]]

different formats, often electronic, to a paper format to file with the 
Commission. They will now file electronically, thereby eliminating the 
step of making paper filings, and their filing burden will be reduced.
    156. Several commenters expressed concerns over the expense of 
developing web sites to capture and display Index of Customers data. 
The Commission recognizes that this requirement would be a duplication 
of the data we will maintain on our own web site.
    Therefore, we will eliminate the requirement for each company to 
develop and maintain an information site. An added benefit is that 
having one central location for the data will make it easy for the 
public to find and research power prices. Although the Commission will 
post the data, this does not eliminate the FPA section 205(c) 
requirement for public utilities to have actual agreements available 
for public inspection at their business locations.
    157. Numerous commenters contend that the amount of data requested 
represents an increase in burden over the current requirements. We 
disagree.
    158. In Citizens Power & Light Corporation, 48 FERC para. 61,210 
(1989) (Citizens Power), the Commission stated that:

    Citizens Power must make informational filings describing its 
purchase and sale contracts for generation and transmission. These 
filings will be used to monitor Citizens Power's ability to exercise 
market power * * * The informational filings will also be used to 
monitor the rates being paid to Citizens.\121\
---------------------------------------------------------------------------

    \121\ 48 FERC at 61,778.

Citizens Power also stated that, for each purchase contract and sale 
---------------------------------------------------------------------------
contract, Citizens should provide the following information:

    For each purchase contract and sale contract, Citizens Power 
should provide the following information: the buyer's or seller's 
name; a brief description of the service, including degree of 
firmness; the delivery points for each service; the price of each 
service; the quantities to be served or purchased; the contract's 
duration; * * * and any other attributes of the product being 
purchased or sold which contribute to its market value. Citizens 
Power shall file this contract information quarterly as to all 
contracts signed within the time period. Citizens Power must file 
this information within thirty days of the end of each quarterly 
period.\122\
---------------------------------------------------------------------------

    \122\ ``In deciding that informational filings are to be made on 
a quarterly basis, we have balanced the need to ensure that the data 
are not stale for purposes of any market analysis, against the 
desire that Citizens Power not be competitively disadvantaged by 
having to file sensitive marketing information while it might still 
be useful to Citizens Power's competitors.'' 48 FERC at 61,778.

Thus, it can be seen that reporting this information is not a new 
requirement.
    159. In Southern II, the Commission provided that power marketers 
need only report a limited data set in the Quarterly Transaction Report 
for short-term power sales.\123\ The Commission, in the NOPR, proposed 
to retain the data reporting distinctions for short-term sales. This 
final rule does not change the data burden for short-term transactions.
---------------------------------------------------------------------------

    \123\ Southern Company Services, Inc., 75 FERC para. 61,130 at 
61,444-445 (1996) (Southern II).
---------------------------------------------------------------------------

    160. As shown in Attachment B, all of the data requested for 
transactions reported in Electric Quarterly Reports are currently 
required of utilities selling at market-based rates, with the exception 
of contact e-mail address, company DUNS number, transaction 
identification, and a contract ID number. The reporting of cost-based 
transactions and book outs are new requirements and are discussed 
below. Offsetting those additions, the current requirement to report 
purchase data is being eliminated.
    161. Finally, Otter Tail comments that the proposed rule would be 
prejudicial and burdensome to small entities. In Southern, the 
Commission removed the waiver commonly granted market-based rate power 
sellers, and required them to follow the same Part 35 filing 
requirements all public utilities, both large and small, have had to 
abide by for decades. The Commission believes that filing Electric 
Quarterly Reports constitutes a lesser burden for market-based rate 
agreements than the burden required by the current Part 35 filing 
requirements.
162. Consistent with the Paperwork Reduction Act, the Filing 
Requirements Are the Least Burdensome Possible

163. Comments

    164. EEI argues that the Paperwork Reduction Act requires the 
Commission to design reporting requirements that are the least 
burdensome possible and that the Commission's proposal does not 
accomplish this.\124\
---------------------------------------------------------------------------

    \124\ EEI Data Sets Comments at 4.
---------------------------------------------------------------------------

165. Commission Conclusion

    166. We agree with EEI that, under the Paperwork Reduction Act, the 
Commission is required to minimize the reporting burden it imposes on 
the regulated community and to explain the need for proposed new 
information requests. But as shown on Attachment B, infra, almost all 
of the information that will be reported in Electric Quarterly Reports 
is currently filed in paper format and an electronic filing will reduce 
the burden. In addition, by including data in Electric Quarterly 
Reports, public utilities will no longer file conforming service 
agreements, Quarterly Transaction Reports or purchase data. Moreover, 
we believe we have shown that the proposed changes in transaction 
reporting are consistent with FPA section 205(c) and will help ensure 
that rates are and remain just and reasonable. For example, the 
Commission is no longer requiring purchase data. This rule also gives 
us the opportunity to make use of current technology to enhance the 
usefulness of the data.
167. The Information Reported Will Be Useful

168. Comments

    169. PSEG states that Index of Customers filings, as proposed, 
would constitute a ``data dump.'' \125\ PSEG and Reliant ask, for 
example, what use are prices that change by the minute or hour? \126\
---------------------------------------------------------------------------

    \125\ In other words, it would be filed, but it would never be 
of any use or even looked at.
    \126\ PSEG NOPR Comments at 8-9.
---------------------------------------------------------------------------

170. Commission Conclusion

    171. It is true that the volume of transactions in electric power 
markets is extensive and growing. This will produce a large number of 
reported transactions. Even so, the proposed reporting requirements are 
likely to reduce reporting burden with a standard electronic reporting 
format. We reject the contention that this reporting requirement would 
only produce a data dump. The reason for the specific formatting of the 
data is to enable Commission staff and other interested parties to 
perform analyses of the data.
172. Uniform Data Sets Are Needed

173. Comments

    174. Avista states that it does not currently maintain its data in 
the format that the template requires. It states that many of the 
elements are not maintained in electronic format and compiling the data 
will be both costly and labor intensive.\127\
---------------------------------------------------------------------------

    \127\ Avista Data Sets Comments at 6.
---------------------------------------------------------------------------

175. Commission Conclusion

    176. We acknowledge that not all public utilities are currently 
keeping their data in formats that match the data sets adopted in this 
rule. This current chaotic diversity, however, may explain why the 
current quarterly transaction reports are so inconsistent and why 
uniform data sets are so necessary. Because some of the contract data 
elements may not currently be in

[[Page 31058]]

utilities' computer systems, we will be providing in the final format 
(for Electric Quarterly Reports due on January 31, 2003 and thereafter) 
a user-friendly application through which the data can be entered.
177. Reporting the Termination Dates of Agreements, Instead of Filing 
Notices of Termination, Constitutes a Significant Burden Reduction

178. Comments

    179. Duke argues that the data element for 
``actual_termination_dt'' is burdensome because it seeks data that Duke 
does not currently collect. Duke argues that this information can only 
be produced if Duke manually monitors each and every transaction to 
determine if the transaction ends prior to the agreed time and 
date.\128\
---------------------------------------------------------------------------

    \128\ Duke Energy NOPR Comments at 6,7.
---------------------------------------------------------------------------

180. Commission Conclusion

    181. Duke's understanding of the data reported in this data element 
is incorrect. The actual termination date to be reported in Electric 
Quarterly Reports refers to the dates when public utilities' agreements 
terminate. As proposed in the NOPR,\129\ reporting this data element in 
Electric Quarterly Reports replaces the existing requirement that 
public utilities file notices of termination requesting approval to 
terminate their agreements and a cancellation sheet.\130\ Thus, this 
item yields a burden reduction, not an increase.
---------------------------------------------------------------------------

    \129\ NOPR, FERC Stats. & Regs. para. 32,554 at 34,068.
    \130\ Similarly, the 60-day notice provisions for new filings is 
inapplicable to conforming agreements that are not filed.
---------------------------------------------------------------------------

182. Data Will Be Collected Efficiently, Without Duplicate Entries

183. Comments

    184. Constellation states that the data sets in Appendices A and B 
of the Data Sets Order did not eliminate duplication in required data 
elements as promised by the Commission's NOPR. Constellation notes that 
the Appendices identify multiple data elements as required for both 
contract and transaction data sets. Further, it argues, the Data Sets 
Order provided no instructions on how to report these fields without 
duplication.\131\
---------------------------------------------------------------------------

    \131\ Constellation Data Sets Comments at 6.
---------------------------------------------------------------------------

185. Commission Conclusion

    186. Although some data elements are related to both contract and 
transaction data, this does not mean that they will necessarily be 
entered twice. The software being developed for the final format of the 
Electric Quarterly Reports will use a relational database, so one data 
entry (e.g., company name) will automatically show up in both the 
contract data and transaction data portions of the Electric Quarterly 
Report without duplicate data entries being made. This feature will not 
be implemented for the July 31 and October 31, 2002 periods. For these 
periods, the individual files will be posted on the Commission's 
website.

187. Filing Procedures and Related Issues

188. All Unexecuted and Nonstandard Non-Market-Based Rate Agreements 
Are Nonconforming Agreements and Must Be Filed with the Commission for 
Approval
    189. In the NOPR, we proposed to revise 18 CFR 35.1 to add 
paragraph (g). The NOPR proposed that agreements that conform to 
approved forms of service agreements in a public utility's tariff and 
any market-based rate agreement need not be filed with the Commission.

190. Comments

    191. Southern argues that the filing of agreements is unnecessary 
for negotiated, bilateral market-based sales now that purchasers have 
numerous choices and agreements are negotiated under market-based 
umbrella tariffs and service agreements.\132\
---------------------------------------------------------------------------

    \132\ Southern NOPR Comments at 4.
---------------------------------------------------------------------------

    192. Other commenters raise concerns about unexecuted and 
nonstandard agreements. Calpine urges that all unexecuted and 
nonstandard agreements continue to be filed with the Commission to help 
the Commission remedy instances of discrimination.\133\ Otherwise, 
Calpine states, the proposed regulation could have the unintended 
effect of increasing opportunity for discrimination. Calpine is 
concerned that case-by-case review of interconnection agreements could 
lead to disparate treatment.\134\ Engage states that, in the event of 
an FPA-related dispute, the Commission should honor any negotiated 
terms for dispute resolution contained in a power agreement. Engage 
further argues that the Commission should confirm that it will honor 
such negotiated dispute resolution procedures and not open itself to 
forum shopping by any of the parties.\135\ TDUS states that executed 
service agreements must be made available to customers, such as through 
a central clearinghouse. In addition, TDUS states that ``material 
deviations'' must be clearly spelled out. Third parties should be able 
to object to terms and conditions to the Commission.\136\
---------------------------------------------------------------------------

    \133\ Although Calpine's particular concern is with transmission 
and interconnection agreements, it also expresses support for the 
continued filing of all unexecuted and nonconforming agreements. 
Calpine NOPR Comments at 6.
    \134\ Calpine NOPR Comments at 5-6.
    \135\ Engage NOPR Comments at 8-8.
    \136\ TDUS NOPR Comments at 5-6.
---------------------------------------------------------------------------

    193. National Grid states nonstandard agreements should be 
permitted to be posted in PDF on utilities' web sites and filed 
electronically with the Commission, and the Commission would then put 
the file in RIMS.\137\
---------------------------------------------------------------------------

    \137\ National Grid NOPR Comments at 5.
---------------------------------------------------------------------------

    194. The California Commission argues that the electronic filing 
requirements should complement, not replace, the Commission's existing 
filing requirements. Otherwise, the burden would be put on third 
parties, such as state Commissions to challenge the reasonableness of 
contracts in FPA section 206 proceedings.

195. Commission Conclusion

    196. We believe that, because the Commission will review the 
reasonableness of the terms and conditions of the standard agreements 
for transmission, cost-based sales, and other generally applicable 
services, and because utilities will be required to retain copies of 
these agreements and make them available for public inspection and 
copying, the requirement for public utilities to file all individual 
service agreements with the Commission can be eliminated so long as 
those agreements are consistent with a public utility's applicable 
approved standard forms of service agreements. However, if an agreement 
does not precisely match the applicable standard form of service 
agreement, or if the agreement is unexecuted, it is necessarily 
nonconforming and must be filed individually for Commission approval. 
Given these safeguards, we do not believe that the proposals adopted in 
this rule in any way compromise the Commission's ability to review 
substantive issues.
    197. It is true that conforming agreements will not be filed before 
becoming effective. Thus, third parties will first learn of them when 
they are reported in a public utility's Electric Quarterly Report. It 
is also true that, a third party (such as the California Commission) 
finding the agreement objectionable would have the option of filing a 
complaint, but not a protest. The opportunity to file a protest would 
come earlier in the process, when the public utility submits its 
standard forms of agreement or market-based rate tariff for Commission 
approval. In response to such filings, third parties may protest

[[Page 31059]]

any terms and conditions in those proposed standard forms that they 
find objectionable.\138\ Moreover, if a public utility fails to file an 
agreement on the incorrect assumption that it is a conforming 
agreement, it does so without Commission approval.
---------------------------------------------------------------------------

    \138\ This is the same procedure that the Commission uses 
regarding conforming gas transportation agreements reported in the 
gas Index of Customers. See, e.g., ANR Pipeline Company, 97 FERC 
para. 61,224 at 62,022 (2001), where the Commission explained that 
interested parties have an opportunity to review whether standard 
forms of agreement are just and nondiscriminatory before they are 
approved and thus, there is no need to review conforming agreements 
to determine if they comply with requirements of the NGA. By 
contrast, nonconforming agreements are individually filed and 
carefully reviewed before approval.
---------------------------------------------------------------------------

    198. Excelon and Calpine are concerned that the revised filing 
requirements will change utilities' obligations to file with the 
Commission or change the Commission's review process for non-market-
based agreements that do not conform to a standard form of service 
agreement. However, that is not the case. There is nothing is this 
proceeding proposing any change on how the Commission will process, 
analyze and review unexecuted and/or nonconforming agreements.\139\ The 
regulation specifically requires that utilities must continue to file 
unexecuted and nonconforming agreements with the Commission under the 
existing and otherwise unchanged filing requirements of Part 35.
---------------------------------------------------------------------------

    \139\ Engage's request for the Commission to presume any 
negotiated term and condition of service is just and reasonable goes 
beyond the scope of this proceeding.
---------------------------------------------------------------------------

    199. TDUS states that the Commission should define material 
deviations from the cost-based standard form of service agreement. The 
Commission does not believe it is appropriate to try to enumerate all 
the potential variations to a standard form of service agreement. 
Public utility services are diverse and will require significant 
differences in form, structure and elements that may be negotiated 
without prior Commission review. This issue may be addressed as 
standard forms of service agreements are proposed by the public 
utilities and are reviewed by the Commission.
    200. Calpine is concerned as to the impact this proposed regulation 
may have on Commission review of interconnection agreements. Part 35 of 
the Commission's regulations does not make a distinction between an 
interconnection agreement and other agreements for services that must 
be filed in conformance with this part of the Commission's regulations. 
If an interconnection agreement conforms with a Commission approved 
standard form of interconnection agreement,\140\ the utility does not 
have to file it with the Commission, but it must be reported in 
Electric Quarterly Reports. The Commission will review any proposed 
standard form of service agreement to ensure that the terms are just 
and reasonable, and not unduly discriminatory or preferential.
---------------------------------------------------------------------------

    \140\ See Standardization of Generator Interconnection 
Agreements and Procedures, Notice of Proposed Rulemaking, Docket No. 
RM02-1-000, which is being issued concurrently with this rule.
---------------------------------------------------------------------------

    201. National Grid argues that nonstandard agreements should be 
permitted to be posted on utilities' web sites and filed electronically 
with the Commission. The Commission has no objection to utilities 
posting either standard or nonstandard agreements on their Web sites. 
The Commission has initiated other proceedings in preparation of 
receiving rate filings and tariff sheets electronically.\141\ However, 
this is beyond the scope of this proceeding.
---------------------------------------------------------------------------

    \141\ See Docket No. RM01-5-000, where Electronic Tariff 
Filings, Notice of Inquiry and Informational Conference, 66 FR 
15673, FERC Stats. & Regs. para. 61,270 (2001) was issued and Docket 
Nos. RM00-12-000, where Order No. 619, supra at n.14, was issued.
---------------------------------------------------------------------------

202. Scope of Standard Service Agreements
    203. In the NOPR, we proposed adoption of Sec. 35.10a, containing 
guidelines for the inclusion of a standard form of service agreement in 
a public utility's tariff. We proposed that the standard agreement 
format for each service must describe the service to be rendered and 
must provide spaces for the insertion of the customer's name, effective 
date, expiration date, and term. Depending on the type of agreement, 
spaces for other information may also be included, as appropriate. For 
example, spaces may be provided for receipt and delivery points, 
contract quantity, and other specifics of each transaction. New 
standard agreements must be filed in accordance with the form and style 
required of rate schedule filings.

204. Comments

    205. Pinnacle states that streamlined OATT agreements would be 
beneficial. Wisconsin argues that the Commission should clarify that 
all generally applicable services offered under a tariff may be 
included in the form of service agreements under that tariff.
    206. EEI requests an opportunity to discuss with Commission staff 
opportunities to further reduce service agreement filings with 
nonstandard, customer specific, conditions.\142\
---------------------------------------------------------------------------

    \142\ EEI NOPR Comments at 14.
---------------------------------------------------------------------------

207. Commission Conclusion

    208. Pinnacle's and Wisconsin's concerns about the content and 
scope of standard forms of service agreements are beyond the scope of 
this rulemaking. The Commission has already prescribed the OATT 
standard forms of service agreements in Order No. 888. The Commission 
has also approved other standard forms of service agreements as part of 
utilities' individual tariffs and rate schedules. This rulemaking was 
not intended to reexamine those standard forms of service agreements.
    209. Just as the Commission is not reexamining standard forms of 
service agreements already found to be consistent with the FPA, the 
Commission's regulations and policy, this rulemaking is not adopting a 
rule or finding that predetermines whether a particular standard form 
of service agreement is just and reasonable. Utilities must file and 
support their proposed standard forms of service agreements. The 
Commission will review these filings consistent with the FPA, the 
Commission's regulations and Commission policy in the same manner as it 
did prior to this rulemaking.
    210. EEI requests an opportunity to discuss with Commission staff 
opportunities to further reduce service agreement filings with 
nonstandard, customer-specific conditions. EEI and public utilities are 
welcome to discuss their ideas with Commission staff, consistent with 
18 CFR 35.6.
211.Duration of Requirement to Report Data

212. Comments

    213. Engage states that the NOPR is unclear as to whether the 
Commission intends that public utilities post the terms of the 
agreements when negotiated or only after performance commences. Engage 
urges that postings about a transaction not be required until 
performance commences.\143\ Edison Mission argues that,
---------------------------------------------------------------------------

    \143\ Engage NOPR Comments at 6.

    FERC does not need contract-specific data for the life of the 
contract in order to satisfy market monitoring or legitimate filing 
requirements. A shorter time frame on which contract information is 
to be provided, as well as reasonable limits on long-term contract 
information, is more appropriate.\144\
---------------------------------------------------------------------------

    \144\ Edison Mission Data Sets Comments at 5.

    214. Southern asks the Commission to clarify that umbrella 
agreements that have not experienced a transaction need not be included 
in Index of Customers. Southern explains that these umbrella agreements 
are non-transactional. They are merely authorizing agreements that

[[Page 31060]]

allow the customer to later submit specific requests for that type of 
service.

215. Commission Conclusion

    216. In response to comments from Engage and Southern, we clarify 
that under this rule, the requirement to file contract data and 
transaction data begins with the first Electric Quarterly Report filed 
after service commences under an agreement, and continues until the 
Electric Quarterly Report filed after the agreement expires or by order 
of the Commission. We reject Edison Mission's suggestion that contract 
data should be reported only in the quarter when the agreement is 
entered. Removing information about agreements that are still in effect 
does not adequately comply with the requirements of FPA section 205(c). 
Moreover, once the data are entered into an Electric Quarterly Report, 
it takes no work to retain this information in subsequent Electric 
Quarterly Reports.
    217. Umbrella agreements are commonly filed under market-based rate 
tariffs. They allow the parties to transact business from time to time 
without waiting to obtain specific approval for each transaction. These 
agreements may ``sit on the shelf'' until such time as the customer 
requests service. Under the this rule, umbrella agreements are first 
reported in the first Electric Quarterly Report filed after service 
commences. The Commission agrees with Southern that agreements for 
which service has not commenced as of the reporting period do not have 
to be reported in Electric Quarterly Reports. However, once reported, 
the contract data continues to be reported in all subsequent Electric 
Quarterly Reports until the agreement terminates by its own terms or by 
order of the Commission, even if no further transactions occur under 
the agreement.
218. Consequences of Noncompliance

219. Comments

    220. TDUS states that the Commission should clarify the penalties 
for failure to comply with the new filing requirements.\145\ APPA 
states that the Final rule should outline the Commission's plan for 
auditing the Index of Customers for accuracy.\146\ Similarly, TDUS is 
concerned with the apparent self-policing of the filed reports.\147\ 
EEI expressed concern with the potential penalties should a utility's 
Index of Customers contain inadvertent or inconsequential 
omissions.\148\
---------------------------------------------------------------------------

    \145\ TDUS NOPR Comments at 8.
    \146\ APPA NOPR Comments at 4.
    \147\ TDUS NOPR Comments at 8.
    \148\ EEI NOPR Comments at 9.
---------------------------------------------------------------------------

221. Commission Conclusion

    222. While the Commission is not proposing any specific audit 
procedures as a part of this rulemaking, the Commission expects to 
audit utilities' reports either as the result of a filed complaint or 
on our own initiative. This does not mean, however, that there are no 
incentives for utilities to make full and complete reports, or that 
there are no consequences for failing to make complete or accurate 
reports. Electric Quarterly Reports are intended to satisfy the FPA 
section 205(c) filing requirements. If utilities are found to have 
violated the requirements of the Commission's regulations, the 
Commission will not hesitate to impose remedies, as appropriate. If a 
public utility has not received approval for a cost-based rate 
transaction and neglects to include in its Electric Quarterly Report 
relevant contract data, the Commission may determine that the agreement 
was not on file and adjust the rate in that agreement as 
appropriate.\149\ If a public utility fails to file a Electric 
Quarterly Report (without an appropriate request for extension), or 
fails to report an agreement in a report, that public utility may 
forfeit its market-based rate authority and may be required to file a 
new application for market-based rate authority if it wishes to resume 
making sales at market-based rates.
---------------------------------------------------------------------------

    \149\ See, e.g., Central Maine Power Company, 56 FERC para. 
61,200, Order on Rehearing, 57 FERC para. 61,083 (1991), where the 
Commission established a policy that remedies would be provided in 
instances of late-filed agreements.
---------------------------------------------------------------------------

    223. The Electric Quarterly Reports are designed to satisfy the FPA 
section 205(c) requirements. For power marketers, the Electric 
Quarterly Report is intended to replace the current filing of Quarterly 
Transaction Reports summarizing their market-based rate transactions 
and the filing of long-term agreements. Electric Quarterly Reports are 
also intended to replace the Quarterly Transaction Reports and rate 
filings required of traditional utilities with market-based rate 
authority. Once this rule becomes effective, the requirement to comply 
with this rule will supersede the conditions in public utilities' 
market-based rate authorizations and failure to comply with the 
requirements of this rule will subject public utilities to the same 
consequences they would face for not satisfying the conditions in their 
rate authorizations, including possible revocation of their authority 
to make wholesale power sales at market-based rates.
224. This Rule Does Not Nullify Existing Tariff Conditions or System 
Agreements

225. Comments

    226. WSPP asks for clarification of whether it must continue to 
comply with the reporting requirements currently in its tariff. It also 
asks for clarification of whether it should file a joint Index of 
Customers on behalf of its members, or should they individually file 
for themselves. WSPP also asks whether any postings will be required on 
the WSPP web site as a result of this NOPR.

227. Commission Conclusion

    228. WSPP's tariff contains a requirement for it to file certain 
margin data. This requirement was imposed in 1991. In Docket No. ER91-
195-035, WSPP asked the Commission to rescind this requirement because 
it is not required of other comparable entities. WSPP's request is 
being addressed in an order being issued in Docket No. ER91-195-035 
concurrently with this rule.
    229. Each WSPP member has its own tariff on file with the 
Commission, and each WSPP member must satisfy the various reporting 
requirements for utilities. The proposed regulations do not change the 
nature of the relationship between organizations, such as WSPP, and 
their members or agency arrangements, such as Southern Services, Inc., 
have with its affiliated utilities.
    230. We also note that the current Commission orders granting 
market-based rate authority each contain a requirement to report any 
material changes in circumstances. This rule does not rescind this 
requirement.
231. Timing and Frequency for Filing Electric Quarterly Reports
    232. The NOPR proposed, in Sec. 35.10b(a), that the Index of 
Customers must be filed quarterly 30 days after the end of the 
reporting quarter.

233. Comments

    234. PJM supports the NOPR proposals, but would have Index of 
Customers filed monthly rather than quarterly. It takes this view 
because this would make the data more useful for market monitoring 
purposes.\150\ Likewise, TDUS is concerned that the three month time 
gap in reporting the agreements will inhibit the public from 
discovering potential reporting or contracting problems in a timely 
fashion. In addition, TDUS suggests that public utilities should post a 
downloadable and searchable copy of

[[Page 31061]]

each service agreement referenced in their Index of Customers within 
five days after they become effective.\151\
---------------------------------------------------------------------------

    \150\ PJM Data Sets Comments at 2.
    \151\ TDUS NOPR Comments at 4, 7.
---------------------------------------------------------------------------

235. Commission Conclusion

    236. The Commission will not adopt PJM's proposal. We are not 
prepared to impose this additional burden at this time because it is 
not necessary to switch from quarterly to monthly reporting to meet the 
Commission's objectives in this rulemaking.
    237. However, the Commission is not finished with its review of its 
market monitoring data requirements. This may require re-examination of 
whether Electric Quarterly Reports should be filed on a quarterly basis 
or on some other basis. This examination would occur at a later date as 
part of the Commission's ongoing review of its market monitoring 
responsibilities.
238. Use of Utility Web Sites
    239. The NOPR addressed the use of OASIS or other public utility 
web sites to post Index of Customers filings in two provisions 
(Secs. 35.10(b) and 37.6(g)). In Sec. 35.10b(b), the NOPR proposed that 
each public utility with an OASIS web site post its Index of Customers 
in the portion of its OASIS web site that is accessible to the public 
without registration or fee. We proposed that each public utility that 
does not have an OASIS web site shall post its Index of Customers on a 
web site that also is accessible to the public without registration or 
fee. We explained that, in the alternative, we would consider allowing 
the use of a joint web site so that data about numerous public 
utilities could be found at one common site.
    240. In addition, we proposed to revise Sec. 37.6 to add paragraph 
(h) that would require OASIS sites to include Index of Customers 
postings that would be available to the public without registration or 
fee. The information would be required to be available for online 
review, copying or download. Index of Customers filings would remain 
posted at the same location for three years after they are filed.

241. Comments

    242. Various commenters raised objections to the use of OASIS and 
other web sites as locations to post Electric Quarterly Reports. 
Midwest ISO suggests a two year retention period, instead of the three 
years proposed in Sec. 35.10b(d), to reduce posting burden.

243. Commission Conclusion

    244. The Commission has reconsidered the use of OASIS and other web 
sites to post Electric Quarterly Reports and has decided that it will 
be more efficient to maintain a single web site for Electric Quarterly 
Reports at FERC's Internet site rather than to require each utility to 
maintain its own site. Thus, the Commission will not adopt the proposed 
revisions on this subject. These changes make MISO's comment moot. The 
existing requirements for public utilities to retain copies of their 
contracts and other data are unchanged by this rule.\152\
---------------------------------------------------------------------------

    \152\ See 18 CFR 125.3, which provides that contracts are to be 
retained for the later of 4 years after they expire, or until all 
proceedings or disputes are concluded.
---------------------------------------------------------------------------

245. Procedures for Cancelling Expiring Agreements

246. Comments

    247. Southern supports the proposal that a utility would merely 
delete from its Index of Customers canceled and terminated agreements 
that expire by their own terms instead of having to make a separate 
filing with the Commission.\153\ TDUS suggests that cancellations of 
service agreements that do not expire of their own terms should be 
filed with the Commission.\154\
---------------------------------------------------------------------------

    \153\ Southern NOPR Comments at 27.
    \154\ TDUS NOPR Comments at 5-6.
---------------------------------------------------------------------------

248. Commission Conclusion

    249. Under this rule, agreements that conform to approved standard 
forms of service agreement and market-based rate agreements may 
terminate by their own terms without the need for the public utility to 
file a notice of cancellation or cancellation tariff sheet with the 
Commission. The public utility simply removes the agreement from its 
Electric Quarterly Report the quarter after it terminates.\155\ For 
agreements that remain in public utilities' Commission-maintained 
tariffs after the implementation date of this rule (basically non-
conforming agreements), public utilities also must comply with the 
requirements to file a notice of cancellation and a cancellation tariff 
sheet. TDUS' request assumes that there is no consent between the 
parties to terminate a service. All proposals to change terms of an 
agreement without the consent of the customer must be filed with the 
Commission. Additionally, if an agreement terminates on a date other 
than the original agreement termination date (for instance, due to 
extension provisions being executed or termination by mutual 
agreement), the utility must enter the actual termination date in the 
subsequent Electric Quarterly Report, regardless of whether that 
agreement is a conforming agreement, a non-conforming agreement, or a 
market-based rate agreement.
---------------------------------------------------------------------------

    \155\ The simplified termination procedures will not apply to 
agreements entered into before the final software is developed and 
ready for implementation. Further instructions on this issue will be 
included in a subsequent order.
---------------------------------------------------------------------------

    250. If an agreement terminates on a date within the reporting 
quarter, the utility must enter the actual termination date in the 
Electric Quarterly Report for that calendar quarter, and remove the 
agreement from the subsequent Electric Quarterly Report.

251. Data to Be Filed in Electric Quarterly Reports

    252. In the NOPR, the Commission provided a general description of 
the data to be reported in Index of Customers filings. In the Data Sets 
Order, the Commission added specific details about the exact data 
definitions and data elements to be used in Index of Customers filings. 
These data fall into two main categories, contract data and transaction 
data. The Data Sets Order also clarified the Commission's policy 
regarding the reporting of book outs and net outs. The Data Sets Order 
invited comment on these issues. In the discussion below, we will 
address each of the issues raised by the commenters.

253. Transaction Data

254. Public Utilities Will Report Actual Prices for All Transactions, 
Including Those Lasting Less than One Day

255. Comments

    256. AEP states that the Commission's decision to allow marketers 
to report only the high, low and average price for transactions shorter 
than one day is ``somewhat of an improvement.''\156\
---------------------------------------------------------------------------

    \156\ AEP Data Sets Comments at 4.
---------------------------------------------------------------------------

    257. PJM recommends that hourly reporting along with the actual 
transaction specific data is essential for market development and 
analysis. PJM supports hourly reporting of transaction data as 
essential to be combined with load data that is already, or will soon 
be, publically available in areas with structured markets.\157\ It 
argues that reporting only high, low and weighted average prices does 
not give sufficient information needed for understanding, 
characterizing and monitoring markets.\158\
---------------------------------------------------------------------------

    \157\ PJM Data Sets Comments at 1.
    \158\ PJM Data Sets Comments at 1-2.
---------------------------------------------------------------------------

    258. Consumers asks if there are a limited number of price changes, 
could the reporting utility report real data that

[[Page 31062]]

would be more useful and easier to provide?\159\
---------------------------------------------------------------------------

    \159\ Consumers Data Sets Comments at 6.
---------------------------------------------------------------------------

259. Commission Conclusion

    260. As stated, section 205(c) of the FPA requires that ``every 
public utility shall file with the Commission, within such time and in 
such form as the Commission may designate, and shall keep open in 
convenient form and place for public inspection schedules showing all 
rates and charges for any transmission or sale subject to the 
jurisdiction of the Commission, and the classification, practices, and 
regulations affecting such rates and charges. . . .'' The Commission 
concludes that public utilities reporting the actual rates charged for 
transactions lasting less than a day complies with the requirements of 
section 205(c) of the FPA.\160\
---------------------------------------------------------------------------

    \160\ The courts have repeatedly emphasized the importance of 
statutory requirements to have rates on file as a critical component 
of complaint-based statutory enforcement mechanisms. In Maislin, the 
Supreme Court rejected an Interstate Commerce Commission policy 
permitting carriers to charge undisclosed negotiated rates, finding 
that disclosure of rates was required both to allow the agency to 
review the rates and to allow other shippers to know whether they 
should challenge a carrier's rates as discriminatory. 497 U.S. at 
132. See also Southwestern Bell 43 F.3d at 1524, and MCI v. AT&T, 
512 U.S. 218, 230 (1994).
---------------------------------------------------------------------------

    261. We agree with PJM that reporting actual prices would actually 
be less burdensome than reporting the prices of transactions lasting 
less than one day on a high, low, and weighted average basis (when the 
prices change during the day) because the data could be reported as is, 
without the extra steps of identifying the high and low prices and 
computing the weighted average. This was confirmed in site visits 
conducted by Staff to observe how these data are currently maintained.
262. Report Reactive Power as an Ancillary Service

263. Comments

    264. Consumers is not clear how or where to report reactive power. 
Consumers suggests that the option of using ``NA'' for appropriate 
fields, such as in rates, should be available.\161\
---------------------------------------------------------------------------

    \161\ Consumers Data Sets Comments at 2-4.
---------------------------------------------------------------------------

265. Commission Conclusion

    266. Reactive power will be reported as an ancillary service. If 
reactive power service is rendered, required contract data summarizing 
the terms and conditions applicable to this service should be provided. 
When a service is not provided, we agree that the use of ``NA'' in 
certain fields will be permissible.
267. Report Transaction Data for Ancillary Services Associated with 
Power Sales

268. Comments

    269. Southern seeks clarification that no transaction information 
is required for OATT ancillary services.\162\
---------------------------------------------------------------------------

    \162\ Southern NOPR Comments at 28-29.
---------------------------------------------------------------------------

270. Commission Conclusion

    271. We clarify that ancillary service transaction data associated 
with transmission need not be reported when the transmission services 
are provided on an unbundled basis.
    272. On the other hand, ancillary service transaction data 
associated with power sales are currently required to be filed in 
Quarterly Transaction Reports and the requirement to file these data is 
retained in this rule.\163\ This matter is discussed in Commonwealth 
Electric Company, 78 FERC para. 61,191 at 61,813 (1997), where we 
stated,
---------------------------------------------------------------------------

    \163\ This occurs in instances when the power is sold in a 
bundled transaction covering the underlying power sales and any 
ancillary services associated with transmission of the power.

    [t]he prices for wholesale generation, transmission and 
ancillary services must be separately stated for sales under 
requirements or coordination contracts executed after July 9, 1996. 
[Emphasis added.]

273. Book Outs

274. Defining Book Outs

275. Comments

    276. Commenters recommend that the Commission eliminate the 
proposed requirement to file information pertaining to the offsetting 
of transactions (called book outs). Commenters argue that the 
Commission's characterization of book outs in the NOPR is inaccurate 
and unclear, that it fails to adequately distinguish between physical 
and financial transactions, and that it shows a fundamental 
misunderstanding of the market and what these transactions really are.
    277. Wisconsin states that book outs more closely resemble 
financial transactions that the Commission has exempted from its 
reporting requirements. Others argue that book outs are purely 
financial transactions and, as a result, are beyond our jurisdiction. 
Commenters claim that the proposal to require marketers to report book 
outs ignores Commission precedent that only transactions that go to 
physical delivery are subject to our jurisdiction.\164\
---------------------------------------------------------------------------

    \164\ In support of this claim, they cite Morgan Stanley Capital 
Group, Inc. (Morgan Stanley 1), 69 FERC para. 61,175 (1994), order 
on reh'g, 72 FERC para. 61,082 (1995) (Morgan Stanley 2); and Annual 
Charges Under the Omnibus Budget Reconciliation Act of 1986, 87 FERC 
para. 61,074 (1999) (Annual Charges).
---------------------------------------------------------------------------

278. Commission Conclusion

    279. As we explained in the Data Sets Order, a ``book out'' is the 
offsetting of opposing buy-sell transactions. The Data Sets Order gave 
the simplified example of a sale of 100 MW of power from A to B and a 
sale of 90 MW of power from B to A, which would result in these 
transactions being booked-out and treated as a 10 MW sale from A to B. 
These book out transactions are currently being reported, without 
objection, in Quarterly Transaction Reports, albeit in aggregated form. 
The Data Sets Order proposed that, under this hypothetical situation, 
public utilities would report both the 100MW and 90MW sales, and not 
just the 10MW delivered.
    280. Typically, however, book outs involve a chain of transactions 
(e.g., A sells 50MW of power to B, B sells 55MW of power to C, C sells 
60MW of power to A). Under this hypothetical, if no further 
transactions were made, 50MW would be booked out, B would deliver 5MW 
to C, and C would deliver 10MW to A. If the parties wished to use book 
outs to avoid making physical transmission for power deliveries, A 
could sell an additional 10MW of power to B and B could sell an 
additional 5 MW of power to C, in which case all three transactions 
would be booked out in their entirety and all delivery obligations 
would be offset, although all other obligations under the agreements, 
including payment, would remain in effect.
    281. Now that the Commission is considering requiring book outs to 
be reported on a disaggregated basis, objections are being raised 
arguing that the Commission lacks jurisdiction over these transactions, 
unless they result in an actual physical delivery of power. We find 
that these objections focus on the wrong issue and are without merit. 
The Commission is not here asserting (or disclaiming) jurisdiction over 
the underlying sales transactions. Instead, the Commission is deciding 
what information must be reported to us by public utilities.
    282. The power sales that make up book out transactions on their 
face typically are for the sale for resale of electric energy in 
interstate commerce by a public utility. The buyer, seller, price, 
quantity and other agreement details in such agreements are 
indistinguishable from those in any other power sale agreement. The

[[Page 31063]]

agreements obligate the seller to provide power and obligate the buyer 
to pay the agreed-on prices. Only after there are subsequent offsetting 
agreements entered (as shown in the illustration above) such that 
deliveries can be offset, does the book out result.
    283. In Prior Notice and Filing Requirements Under Part II of the 
Federal Power Act, 64 FERC para.61,139, at 61,986 , order on reh'g, 65 
FERC para. 61,081 (1993) (Prior Notice Order), the Commission explained 
that FPA section 205(a) gives the Commission authority to ensure that:


    [a]ll rates and charges made, demanded, or received by any 
public utility for or in connection with the transmission or sale of 
electric energy subject to the jurisdiction of the Commission, and 
all rules and regulations affecting or pertaining to such rates or 
charges shall be just and reasonable * * * . [Emphasis in original.]

    In addition, FPA section 205(c) requires all public utilities to 
file:

    schedules showing all rates and charges for any transmission or 
sale subject to the jurisdiction of the Commission, and the 
classification, practices, and regulations affecting such rates and 
charges, together with all contracts which in any manner affect or 
relate to such rates, charges, classifications, and services. 
[Emphasis added].
    The Commission recognizes that this provision has the potential to 
be interpreted very broadly. Thus, we have devised a ``rule of reason'' 
to identify the agreements that must be filed under this 
provision.\165\
---------------------------------------------------------------------------

    \165\ See, e.g., PJM Interconnection, L.L.C., et al., FERC 
para.61,251 at 61,894-95, reh'g denied 95 FERC para.61,333 at 62,186 
(2001); Western Systems Coordinating Council, 87 FERC para.61,060 at 
61,233-34 (1999); Public Service Company of Colorado, 67 FERC 
para.61,371 at 62,267 (1994).
---------------------------------------------------------------------------

    284. As we stated in the Prior Notice Order:

    [a]scertaining the extent of what the industry must file [under 
FPA section 205] depends on how expansively we define the terms 
``for,'' ``in connection with,'' ``affect/affecting,'' ``pertaining 
to,'' and ``relate to.'' [\166\]
---------------------------------------------------------------------------

    \166\ Prior Notice Order, 64 FERC at 61,986.

    We further stated that, as a general matter, the Commission 
typically requires parties to file arrangements involving, among other 
matters, ``a public utility selling or exchanging wholesale power in 
interstate commerce.'' \167\
---------------------------------------------------------------------------

    \167\ Id.
---------------------------------------------------------------------------

    285. We believe that the power sales transactions that make up book 
out transactions fall within this category and should be reported to 
us. As noted above, the agreements obligate the parties to deliver 
power at a specified price and, but for the subsequent offsetting power 
sales, transmission of power would be made. Moreover, such transactions 
in the marketplace plainly affect or relate to those transactions and 
the prices paid for power sales that do go to delivery. Thus, under FPA 
section 205(c), we find that the power sales transactions that make up 
book out transactions must be reported to us in Electric Quarterly 
Reports.\168\
---------------------------------------------------------------------------

    \168\ In the Data Sets Order, FERC Stats. & Regs. para. 35,541 
at 35,806, we also proposed the reporting of ``net outs.'' However, 
in consideration of the comments, we are withdrawing this proposal.
---------------------------------------------------------------------------

286. Reporting Book Outs Is Not Unduly Burdensome

287. Comments

    288. Commenters claim that reporting book outs would be burdensome 
and unreasonable and would not provide data that is meaningful or 
useful. Commenters claim that the proposal shows a fundamental 
misunderstanding of the types and volume of purchase/sales transactions 
occurring on a daily basis in electricity markets. Commenters argue 
that the volume of sale/purchase transactions typically exceeds the 
volume of power delivered by three or four fold or more in today's 
liquid markets.

289. Commission Conclusion

    290. Although we acknowledge that the number of market-based 
transactions taking place daily is large, we do not believe that this 
provides an adequate reason not to report them. The transacting 
entities are fully capable of keeping track of their own transactions, 
if for no other purpose than billing. Nothing presented by commenters 
shows that the incremental burden of making the information available 
would be significant. In this regard, none of the commenters gave any 
specific examples or explanations of how or why reporting book outs 
would be burdensome. Although a majority of market-based transactions 
at issue are delivered without physical transmission, there is physical 
delivery. The two sellers each physically deliver power when they 
exchange the power each produces.
    291. We are amenable to working with the industry to come up with 
the most convenient format and meaningful way of presenting/
transferring the data. But the Commission is charged with oversight of 
electric power markets, and we cannot perform this function adequately 
if we lack important information about how that market functions. We 
conclude that the transactions underlying the book outs must be 
reported if we are to adequately monitor wholesale markets, sellers in 
those markets and wholesale prices for electric energy.
292. Report Book Outs on a Disaggregated Basis
    293. Virginia Power argues that book outs, if reported at all, 
should be reported in the aggregate because public disclosure of book 
outs of physical transactions reveals the negotiating positions of the 
parties and this would undermine competition. Other commenters add that 
utilities that aggregate their book outs would face the added burden of 
maintaining two sets of books--one for the Commission's filing 
requirements and one for accounting and billing purposes.
    294. We will deny this request, consistent with our rulings in 
Citizens Power, where we directed information about wholesale power 
sales to be made on a disaggregated basis. \169\
---------------------------------------------------------------------------

    \169\ 48 FERC at 61,778.
---------------------------------------------------------------------------

295. Contract Data Requirement

296. All of the Contract Terms and Conditions To Be Reported Are 
Identified in the Data Elements
    297. Comments on the contract data requirements focused on two 
major areas, identifying: (1) what contracts would be included in 
Electric Quarterly Reports and (2) specific perceived problems with the 
proposed contract data sets.

298. Comments

    299. Excelon argues \170\ that the requirement to include all terms 
and conditions in contract data reported in the Index of Customers is 
burdensome. From its comments, we surmise that it is concerned about 
reporting contractual terms and conditions beyond the data sets 
identified in the NOPR.
---------------------------------------------------------------------------

    \170\ Excelon Data Sets Comments at 2.
---------------------------------------------------------------------------

300. Commission Conclusion

    301. If we have accurately interpreted commenter's concerns, we can 
alleviate this by clarifying that only the terms and conditions 
contained in Electric Quarterly Report data elements need be reported 
in Electric Quarterly Reports.

302. Data Elements Issues

303. Consistency with the OASIS Standards and Communications Protocols 
Document

304. Comments

    305. Southern notes that in the NOPR, the Commission proposed to 
follow, to the greatest extent possible, the data element names and 
definitions contained in the Commission-approved

[[Page 31064]]

OASIS Standards and Communications Protocols Document, version 1.4 
(OASIS S&CP Document). Southern contends that, notwithstanding this 
commitment, the Commission's Data Sets Order proposes data set names, 
definitions and formats that differ from their OASIS counterparts. 
\171\ Southern argues that these discrepancies and differences may 
inhibit the construction of better reporting systems, and will create 
inefficiencies, undue burden, questionable data, and slower response 
times. Southern suggests that the Commission reconcile its Index of 
Customers data sets with its OASIS counterparts so that Index of 
Customers filings can be integrated with OASIS filings. Southern 
strongly opposes the imposition of another data set on top of the OASIS 
data set. Southern states that the Commission should work with the 
OASIS collaborative group as the Commission once suggested. \172\
---------------------------------------------------------------------------

    \171\ Southern provides an example of 
``increment__peaking__name.'' Southern states that Appendix B 
definition defines the field length as 15 characters, whereas the 
associated OASIS S&CP data element of ``TS__PERIOD'' is 20 
characters.
    \172\ Southern Data Sets Comments at 3-5.
---------------------------------------------------------------------------

306. Commission Conclusion

    307. First, although we attempted to draft the Electric Quarterly 
Report data elements to match their OASIS counterparts wherever 
possible, as discussed in the Data Sets Order, certain apparent 
discrepancies were unavoidable because the OASIS data elements are 
exclusively designed to report on transmission-related transactions 
while the Electric Quarterly Report data elements must cover an entire 
range of transactions under 18 CFR Part 35. Southern states that the 
Commission should have used more of the OASIS S&CP data elements and 
their definitions than proposed in the Data Sets Order. However, the 
OASIS S&CP data set does not contain all the data elements or 
definitions that the Commission requires for contract data reported in 
Electric Quarterly Reports. For example, the OASIS S&CP product 
definitions are limited to those services under the OATT. However, 
public utilities provide many more jurisdictional services than those. 
An example of an element that is not in OASIS is the agreement 
termination date agreed on in the agreement.
    308. As a result, Electric Quarterly Reports will include product 
definitions and termination data that are not in OASIS. The Commission 
believes that the resulting data set will not establish a new layer of 
data definitions on top of the existing S&CP data set. Rather, the 
Commission is expanding the S&CP data set as necessary to collect the 
contract data.

309. Deleted Data Elements

310. Comments

    311. The Commission needs to clarify whether the data elements 
``point__of__receipt__control__area'' and 
``point__of__receipt__specific__loc'' apply to both sales and 
transmission services. It is Constellation's understanding that market-
based sellers are required to report sales, not purchases, and, if this 
is indeed the case, Constellation sees no reason why a report of sales 
transactions should require receipt points. According to Constellation, 
reporting receipt points only makes sense for transmission.\173\
---------------------------------------------------------------------------

    \173\ Constellation Data Sets Comments at 7.
---------------------------------------------------------------------------

    312. AEP proposes that the requirements to report Point of Receipt 
(POR) and Point of Delivery (POD) be replaced by identification of the 
NERC region of the transaction.\174\ AEP argues that POR does not yield 
information that is useful in terms of examining the economics of a 
transaction because: (1) The POR could easily change on a daily basis 
depending on the requirements of scheduling needed to complete the 
transaction; (2) a seller with a defined POD may not have any control 
over the POR from which the seller's supplier chooses to deliver the 
energy; (3) each participant in the chain is unlikely to agree upon 
which of its transactions its upstream or downstream supplier is 
identifying; \175\ (4) it would be difficult from a systems perspective 
to match daily physical schedules with term power sales in a meaningful 
manner other than by providing NERC tags for each day of physical flow 
and even then buyers and sellers are unlikely to agree on which 
specific agreement is moving from POR to POD because in practice they 
are not identified in such a manner to buyer to seller.\176\ Consumers 
questions how PORs and PODs are to be provided on market-area and 
multiple point agreements.\177\
---------------------------------------------------------------------------

    \174\ AEP Data Sets Comments at 5.
    \175\ AEP Data Sets Comments at 6.
    \176\ AEP Data Sets Comments at 6-7.
    \177\ Consumers Data Sets Comments at 2-4.
---------------------------------------------------------------------------

313. Commission Conclusion

    314. We agree with the point made by Constellation. Since we are 
not collecting data on purchases, we will not require point of receipt 
(POR) data for power sales transactions. However, POR and POD 
information will be required for contract data. In response to 
Consumers' question, multiple POR and POD points will be allowed to be 
entered in the Electric Quarterly Report system, thus multiple points 
are accommodated. POR and POD should be reported the way it is written 
in the agreement. If, for example, the agreement lists the information 
at the Control Area level, then the use of the POR or POD control area 
data element will be accepted. If the agreement specifies a specific 
location, then respondents should use the POR or POD specific location 
data element. This is consistent with OASIS standards.
315. Transaction End Date.

316. Comments

    317. Consumers argues that providing transaction end date would 
``discourage long term transactions and unnecessarily divulge 
proprietary information about Buyers' and Sellers' positions for future 
quarters.''\178\
---------------------------------------------------------------------------

    \178\ Consumers Data Sets Comments at 5.
---------------------------------------------------------------------------

318. Commission Conclusion

    319. The transaction end date does not provide sensitive 
proprietary information because it is reported on an historic basis. It 
is reported as the latter of the actual transaction end date or the 
last day of the quarter * * *. Therefore, Consumers' concerns are 
unwarranted.
320. Cancellation Date
    321. The Commission will eliminate the 
``cancellation__of__contract'' data element. When an agreement expires, 
the actual termination date will be entered into the contract data. 
Therefore, the ``cancellation__of__contract'' data element provides 
redundant data. Signatories to an agreement will receive notice 
pursuant to the terms of the agreement, and cancellations without the 
other parties' consent must be individually filed with the Commission 
for approval.
322. Other Services

323. Comments

    324. Southern states the reference in the NOPR to ``other 
services'' should be clarified to be ancillary services under the OATTs 
because those are the only services provided under those tariffs other 
than transmission services.\179\
---------------------------------------------------------------------------

    \179\ Southern NOPR Comments at 28-29.
---------------------------------------------------------------------------

325. Commission Conclusion

    326. That was not the intent of this reference. The ancillary 
services definitions already exist in the OASIS S&CP, and the 
Commission proposes to adopt those definitions. However, the OASIS S&CP 
service definitions were limited to OATT services performed through the 
OASIS. The Commission's

[[Page 31065]]

Electric Quarterly Reports will require reports on many other types of 
jurisdictional services. The Commission was simply indicating other 
services could be defined for the purposes of completing Electric 
Quarterly Reports data fields.
327. Future Revisions to Data Elements
    328. We invited comments as to whether the same voluntary industry 
working group(s) that seek industry consensus and periodically 
recommend revisions to the OASIS S&CP Document would be available to 
aid the Commission in developing and maintaining the various codes for 
Index of Customers Data Sets, or whether another approach would be 
preferable. Southern, EEI and others encouraged the Commission to 
consult with the industry to establish the initial Index of Customers 
data elements and any subsequent modifications. The Commission has 
determined the data elements it requires to be filed, but we recognize 
that several of the data element definitions will require updating as 
new and unique types of services are introduced to the market. The 
Commission recognized this possibility when we proposed using OASIS 
S&CP, version 1.4's ``{Registered}'' variable. The Commission prefers 
that the industry create standard definitions. The OASIS community 
currently maintains the definitions through variable registration on 
TSIN.COM. The Commission invites the industry to expand the use of this 
mechanism to include non-OATT services.
    329. While we are today issuing our final rule in this proceeding, 
we are not yet implementing the final format for Electric Quarterly 
Reports because further work on software development remains to be 
completed. As a result, there is a short window of opportunity if the 
industry is able to make consensus recommendations for minor revisions 
to the Electric Quarterly Report data elements that would better match 
the data elements used in the OASIS S&CP Document. As we noted above, 
the Commission is looking for a single group to emerge to tackle the 
development of uniform industry standards. When such a group is in 
place, it would be the proper group to address this issue.

330. Role of RTOs

331. Comments

    332. EEI asks what reporting requirements will the RTOs be required 
to satisfy? EEI argues that the Commission should delineate differences 
between transmission providers and RTOs. EEI, Enron, and Illinois Power 
argue that the NOPR may be premature and should be delayed until there 
has been more progress with RTOs and the Commission has established 
standards for the RTOs. They argue that the proposed regulations may 
become outdated with formation of RTOs. Illinois Power also argues that 
delaying the implementation of the rulemaking until after RTOs become 
functional will relieve transmission providers, such as itself, of the 
burden of having to electronically file its transmission contract 
information. In the alternative, Illinois Power asks that the 
Commission give transmission utilities who are actively engaged in good 
faith efforts to become part of an RTO an exemption from filing 
electronically.\180\
---------------------------------------------------------------------------

    \180\ EEI NOPR Comments at 16, Illinois Power NOPR Comments at 
2-3, Enron NOPR Comments at 3, 4.
---------------------------------------------------------------------------

333. Commission Conclusion

    334. Some commenters request clarification as to the role of RTOs 
in filing transmission and sales contract data and transaction data. 
RTOs, as public utilities, are required to abide by the provisions of 
Part 35 of the Commission's regulations, except where specifically 
exempted. Under Sec. 35.34(k) of the Commission's regulations, 18 CFR 
35.34(k), an RTO must administer its own transmission tariff, which 
includes transmission and ancillary services under its OATT. The 
requirements of this rule do not create any conflict or ambiguity as to 
the responsibilities of RTOs to file and report transmission agreements 
consistent with Part 35. RTOs are responsible under Part 35 of the 
Commission's regulations for making tariff filings and following 
related reporting requirements.
    335. The NOPR did not distinguish between an RTO and a traditional 
public utility concerning the requirement to report power sale 
transaction data. To the extent that an RTO makes wholesale power sales 
or transmission sales, these sales are subject to the same reporting 
requirements that would be applicable to any other public utility. To 
the extent that an RTO facilitates transactions by its members but 
title to the power never passes to or from the RTO, these transactions 
would be reported by the parties making the sales and not by the RTO 
itself.\181\
---------------------------------------------------------------------------

    \181\ The Commission will require PJM, ISO-New England, Inc., 
New York Independent System Operator, L.L.C. and the California ISO 
to follow the same reporting requirements as an RTO. The Commission 
will address particular filing requirements for auctions in the 
Standard Market Design proceeding in Docket No. RM01-12-000.
---------------------------------------------------------------------------

    336. Public utilities making power sales to an RTO, or though an 
RTO's power market, must report their power sales agreements and 
transaction data pursuant to Sec. 35.10b. However, this rule does not 
prevent an RTO from filing power sales transaction information on 
behalf of its members or participants as an agent, if authorized by its 
members or participants to do so.
    337. The commenters also suggest that the Commission delay the 
electronic filing of transmission contract data until the RTOs are 
either more fully defined or operating. The Commission denies this 
suggestion.

338. Section By Section Revisions

339. Deletion of Sec. 2.8
    340. In the NOPR, we proposed to delete 18 CFR Sec. 2.8, concerning 
the simplification of public utility rate schedule filings, because 
that regulation has been superceded by the regulations promulgated by 
Order No. 614 and is no longer necessary. No comments were filed 
addressing this proposal. The Commission adopts the change as final.
341. Revised Heading for 18 CFR Part 35
    342. In the NOPR, we proposed to revise the heading of 18 CFR Part 
35 to reflect that 18 CFR Part 35 will now cover the filing of both 
rate schedules and tariffs. No comments were filed addressing this 
proposal. The Commission adopts the change as final.
343. Revisions to Sec. 35.1--Conforming Service Agreements
    344. In the NOPR, we proposed that conforming cost-based agreements 
and all market-based rate agreements would not be filed with the 
Commission. After a review of the comments on this issue, we concluded 
that we would adopt the NOPR proposal in this rule. Thus, we will adopt 
as final the same regulatory text we proposed in the NOPR.
345. Revisions to Sec. 35.10a--Forms of Service Agreements
    346. No comments were filed on this provision. We will revise the 
section as needed to reflect the name change from Index of Customers to 
Electric Quarterly Report. The Commission revised the first two 
sentences in (a) to remove redundant phrases.
347. Revisions to Sec. 35.10b (a)--Electric Quarterly Reports
    348. In the NOPR, we proposed adoption of Sec. 35.10b(a), which 
stated that each public utility shall file, in an electronic format, an 
updated ``Index of

[[Page 31066]]

Customers'' with the Commission on a quarterly basis. We will revise 
the provision to reflect the name change from ``Index of Customers'' to 
``Electric Quarterly Report.'' We also will revise the provision to 
delete the reference to an Instruction Manual. Although the Commission 
will be issuing an Instruction Manual in the near future, this manual 
will only apply to the Electric Quarterly Reports for the periods 
ending July 31, 2002 and October 31, 2002. Thereafter, this filing 
format will be replaced by a relational database now under development, 
which will be implemented in a subsequent order. The final format will 
not require a formal, separate Instruction Manual Document. It will use 
software that will be explained in guidance provided on the FERC web 
site. Thus, there is no need for the regulations to reference the 
Instruction Manual.
349. Revisions to Secs. 35.10b(b), (c) and (d)
    350. In Sec. 35.10b(b) and (c), the NOPR proposed rules governing 
the utility's display of its web site address. The retention period for 
postings was covered in Sec. 35.10(d). Given the Commission's findings 
that the Electric Quarterly Reports will be centrally posted by the 
Commission, we will not adopt these provisions.
351. Revisions to Sec. 37.6
    352. In the NOPR, we proposed to revise Sec. 37.6 to add paragraph 
(h) that would require OASIS sites to include Index of Customers 
postings that would be available to the public without registration or 
fee. As discussed above, the Commission has reconsidered this issue and 
we will not make any revisions to Sec. 37.6.
353. Revisions to Data Sets
    354. Several data elements have been changed from what was issued 
in the Data Sets Order. Company_web_site_address has been eliminated as 
we are not requiring each utility to post its Electric Quarterly Report 
data on its web site. Cancellation_of_contract has been eliminated 
because that information can be derived from other data elements. 
Product_sub_type_name has been eliminated to simplify the filing 
requirement. Rate_min and rate_max will be used for contract data only 
as we will be collecting actual rates for transactions in the Electric 
Quarterly Report. Point_of_receipt_control_area and 
point_of_receipt_specific_loc will be used for contract data only as we 
are not collecting transaction data on purchases, just sales. 
Product_type_name will be collected for contract data only in order to 
simplify the transaction portion of the Electric Quarterly Report. The 
Transaction ID was added as a unique reference number assigned by a 
seller for each transaction.

355. Implementation

    356. In the NOPR, we explained that we planned to ``complete work 
on developing software and an instruction manual for completing Index 
of Customers filings by the time we issued a final rule in this 
proceeding.'' \182\ We also stated that ``the requirement to file 
Quarterly Transaction Reports will continue until we issue a final 
rule'' and that, ``[t]hereafter, these filings would be superseded by 
the Index of Customer filings.'' \183\ Although this final rule has 
been completed and is being issued, further time will be needed before 
the software can be completed. The software will need to be thoroughly 
tested before it can be implemented.
---------------------------------------------------------------------------

    \182\ NOPR, FERC Stats. & Regs. para. 32,554 at 34,073.
    \183\ Id.
---------------------------------------------------------------------------

    357. Consequently, for the filing periods ending July 31, 2002 and 
October 31, 2002, respondents will use the FERC electronic filing 
system (available on the FERC Internet site, www.ferc.gov) using the 
link labeled e-Filing to file transaction data and contract data. 
Contract data for agreements entered into between April 1, 2002 and 
June 30, 2002 will be reported in the July 31, 2002 filing and 
thereafter. Contract data for agreements entered into between July 1, 
2002 and September 30, 2002 will be reported in the October 31, 2002 
filing and thereafter. Electric Quarterly Reports filed on July 31, 
2002 will include transaction data for all power sales made between 
April 1, 2002 and June 30, 2002. Electric Quarterly Reports filed on 
October 31, 2002 will include transaction data for all power sales made 
between July 1, 2002 and September 30, 2002.
    358. When submitting the July 31, 2002 and October 31, 2002 
Electric Quarterly Reports, Respondents will file documents in either 
Microsoft Excel or ASCII Comma Separated Values (CSV) format. A sample 
Microsoft Excel format document will be posted on the FERC internet 
site before the first report is due on July 31, 2002. The public will 
be able to view and download filed documents from the FERC internet 
site using either the RIMS or FERRIS document management systems. For 
filings after October 31, 2002, this filing format will be replaced by 
the more advanced, relational database now under development. This will 
be implemented in a subsequent order. The final format will incorporate 
the same data sets adopted in this rule.
    359. Once the software for the relational database is developed, 
the Commission will work with a number of public utilities to test the 
software and posting procedures after issuance of this final rule. 
During this testing period, the Commission will issue the formats and 
instructions for filing Electric Quarterly Reports using the software, 
and make the Electric Quarterly Report software available for download 
from the FERC Web site. Once testing is successfully completed, the 
Commission will issue an order requiring subsequent Electric Quarterly 
Reports to be filed using the software.
    360. The NOPR further proposed that at the time public utilities 
make their initial Index of Customers filings under the final rule, 
they will also be required to identify the service agreements in their 
tariffs currently on file with the Commission that conform to the 
standard forms of service agreements. The Commission will implement 
this procedure only after the final software format is implemented and 
will discuss this issue further in the order implementing the final 
software format. Once the final software format is implemented, the 
Commission will remove, as redundant, those conforming service 
agreements from the Commission-maintained tariff. Removal of these 
agreements from the Commission-maintained version of the public 
utility's tariff is simply an administrative function. It does not 
terminate, cancel or in any way change the terms, conditions, rates or 
effectiveness of these agreements. Service agreements that remain in a 
public utility's tariff at the Commission will continue to be subject 
to the filing, format, and designation requirements of Part 35.

361. Regulatory Flexibility Act Certification

    362. The Commission adheres to its certification in the NOPR that 
this rule will not have a significant economic impact on a substantial 
number of small entities. As we stated in the NOPR, the rule will be 
applicable to all public utilities. While we do not foresee that the 
rule will have a significant economic impact on a substantial number of 
small entities, as most entities subject to the rule would not be small 
entities within the meaning of the Regulatory Flexibility Act 
(``RFA''), we will consider granting waivers in appropriate 
circumstances. In fact, by

[[Page 31067]]

eliminating the requirement to file most service agreements in paper 
format, this rule should reduce the economic impact on most entities. 
Accordingly, no regulatory flexibility analysis is required pursuant to 
section 603 of the RFA.

363. Environmental Statement

    364. Commission regulations require that an environmental 
assessment or an environmental impact statement be prepared for a 
Commission action that may have a significant effect on the human 
environment.\184\ However, in 18 CFR 380.4(a)(5), we categorically 
excluded the type of information gathering required in this rule from 
the requirement to prepare an environmental impact statement. Thus, we 
affirm the finding we made in the NOPR that this final rule does not 
impose any requirements that might have a significant effect on the 
human environment and find that no environmental impact statement 
concerning this rule is required.
---------------------------------------------------------------------------

    \184\ Regulations Implementing National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987); FERC Stats. & 
Regs., Regulations Preambles 1986-90 para. 30,783 (Dec. 10, 1987) 
(codified at 18 CFR part 380).
---------------------------------------------------------------------------

365. Public Reporting Burden and Information Collection Statement

    366. In this final rule, we revise the filing requirements for 
public utilities to substitute the electronic filing of an Electric 
Quarterly Reports each calendar quarter for the current submittal of 
conforming individual service agreements, and quarterly reports 
summarizing the utilities' market-based rate transactions.\185\
---------------------------------------------------------------------------

    \185\ A fuller description of the differences between the 
Commission's previous filing requirements and the filing 
requirements directed by this final rule, see Tables 1 and 2 and the 
accompanying text, supra.
---------------------------------------------------------------------------

    367. This final rule is being submitted to the Office of Management 
and Budget (OMB) for review under Section 3507(d) of the Paperwork 
Reduction Act of 1995. The Commission identifies the information 
provided under Part 35 as FERC-516.
    368. Information Collection Statement:
    369. Title: FERC-516, Electric Rate Schedule Filings.
    370. Action: Final Rule.
    371. OMB Control No: 1902-0096.
    372. Respondents: public utilities.
    373. Frequency of Responses: Quarterly.
    374. Necessity of the information: This final rule prescribes the 
information and procedures by which public utilities file with the 
Commission and present to the public the agreements and transactions 
under which power sales were made during the previous calendar quarter 
pursuant to the requirements of section 205(c) of the FPA. The 
revisions adopted in this rule will reduce the regulatory and 
administrative burden associated with processing public utilities' 
service agreement filings, improve public access to pertinent 
information on public utility rates and services and keep pace with 
changing market conditions.
    375. Burden Statement: The burden issue can be divided into two 
categories: initial start-up and ongoing filing requirements 
thereafter.
    376. The Commission recognizes that there will be a burden involved 
in the initial start-up associated with filing Electric Quarterly 
Reports. This burden includes: the set-up of software on the utilities' 
computers; the initial entry of the contract data (this may range from 
a single rate schedule for a power marketer to over one hundred 
agreements for some traditional utilities); and, for companies with 
numerous transactions, the mapping of the transaction data from their 
internal computer systems into the format required by the Commission. 
For this start-up filing burden we estimate that the average burden for 
companies with minimal contract data and less than fifty (50) 
transactions per quarter (presuming they will enter their transactions 
manually into the software rather than mapping their systems) will 
average eighteen hours per utility. For utilities with more contracts 
and a greater number of transactions, we estimate that the average set-
up burden will be 230 hours.
    377. For the ongoing effort involved in filing the Electric 
Quarterly Report each subsequent quarter, the burden should be minimal. 
Contract additions and updates will be entered manually with minimal 
burden (much less than the current burden) and filing of transaction 
data will be totally automated for companies which have mapped their 
systems to the required format, and similar to the current burden for 
the utilities which enter the data manually.
    378. Public reporting burden for this collection is estimated as:

                                              Current Requirements
----------------------------------------------------------------------------------------------------------------
                                                  Quarterly    Hours per     Service     Hours per
             Companies                             reports       filing     agreements     filing    Total hours
----------------------------------------------------------------------------------------------------------------
Utilities.........................          216          840            6         1800            3        10440
Marketers.........................          648         2592            6          200            3        16152
                                                                                                    ------------
                                                                                                           26592
----------------------------------------------------------------------------------------------------------------


                                                                    New Requirements
                                                            [excluding initial set-up burden]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Electric
                          Companies                                          quarterly    Hours per     Service     Hours per   Total hours      Net
                                                                              reports       filing     agreements     filing                  difference
--------------------------------------------------------------------------------------------------------------------------------------------------------
Utilities....................................................          216          840            1            0  ...........          840        -9600
Marketers....................................................          648         2592            2            0  ...........         5184        10968
                                                                                                                               --------------
                                                                                                                                       6024        20568
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 31068]]


                                              Current Requirements
----------------------------------------------------------------------------------------------------------------
                                     Quarterly    Hours per     Service     Hours per
             Companies                Reports       Filing     Agreements     Filing    Total Hours
----------------------------------------------------------------------------------------------------
Utilities.........................          216          840            6         1800            3        10440
Marketers.........................          648         2592            6          200            3        16152
                                                                                                    ------------
                                                                                                           26592
----------------------------------------------------------------------------------------------------------------


                                                                    New Requirements
                                                            [excluding initial set-up burden]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Electric
                          Companies                             Quarterly    Hours per     Service     Hours per   Total Hours  Net Differ-
                                                                 Reports       Filing     Agreements     Filing                     ence
--------------------------------------------------------------------------------------------------------------------------------------------
Utilities....................................................          216          840            1            0  ...........          840        -9600
                                                                                                                               -------------------------
Marketers....................................................          648         2592            2            0  ...........         5184        10968
                                                                                                                          6024        20568
--------------------------------------------------------------------------------------------------------------------------------------------------------


                              Set-Up Burden
------------------------------------------------------------------------
                                                         Total
                  Companies                     Hours    hours    Total
------------------------------------------------------------------------
Utilities....................................      216   230190   49,680
Marketers....................................      648       18    11664
                                              --------------------------
Totals.......................................      864      248   61,344
------------------------------------------------------------------------

    378a. Information Collection Costs: The Commission estimates the 
costs to comply with these requirements are as follows:

Annualized Capital/Startup Costs: $3,451,957 (61,344 hours 2,080 hours 
per year  x  $117,041)
Annualized Costs (Operations & Maintenance): $338,969 (6,024 hours 
 2080 hours  x  $117,041)
Current annualized costs: $1,496,324 (26,592 hours  2,080 hours 
 x  $117,041)

The estimated annual total savings to respondents is approximately 
$1,000,000 on a recurring basis. The collection of information as 
proposed in the NOPR was submitted to OMB under provisions of the 
Paperwork Reduction Act. OMB took no action on the NOPR pending a final 
determination with the issuance of the final rule. Several of the 
comments in response to the NOPR did raise the issue of the burden that 
would be imposed by this rule. The Commission is responding to these 
comments in modifications it has made to its earlier proposals in the 
NOPR and directly in the preamble of this rule.

379. Internal Review

    380. The Commission has conducted an internal review of the public 
reporting burden associated with this collection of information and has 
assured itself, by means of its internal review, that there is 
specific, objective support for this information burden estimate. 
Moreover, the Commission has reviewed the collection of information 
required by this rule and has determined that the collection of 
information is necessary and conforms to the Commission's plan, as 
described in this order, for the collection, efficient management, and 
use of the required information.\186\
---------------------------------------------------------------------------

    \186\ See 44 U.S.C. 3506(c).
---------------------------------------------------------------------------

    381. OMB regulations\187\ require OMB to approve certain 
information collection requirements imposed by agency rule. The 
information collection requirements in this final rule will be 
submitted to OMB for review. Interested persons may obtain information 
on the reporting requirements by contacting the following: Federal 
Energy Regulatory Commission, 888 First Street, NE., Washington, DC 
20426 [Attention: Michael Miller, Office of the Chief Information 
Officer, Phone: (202) 208-1415, fax: (202) 208-2425, E-mail: 
[email protected].
---------------------------------------------------------------------------

    \187\ 5 CFR 1320.11.
---------------------------------------------------------------------------

    382. Persons wishing to comment on the collections of information 
required by this rule should direct their comments to the Desk Officer 
for FERC, OMB, Room 10202 NEOB, Washington, DC 20503, phone 202-395-
7318, facsimile 202-395-7285. Comments must be filed with OMB within 30 
days of publication of this document in the Federal Register. Three 
copies of any comments filed with the Office of Management and Budget 
also should be sent to the following address: Ms. Magalie Roman Salas, 
Secretary, Federal Energy Regulatory Commission, Room 1A, 888 First 
Street, NE., Washington, DC 20426. For further information on the 
reporting requirements, contact Michael Miller at (202) 208-1415.

383. Document Availability

    384. In addition to publishing the full text of this document in 
the Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through FERC's Home Page http://www.ferc.gov and in FERC's 
Public Reference Room during normal business hours (8:30 A.M. to 5:00 
P.M. Eastern time) at 888 First Street, N.E., Room 2A, Washington, D.C. 
20426.
    385. From FERC's Home Page on the Internet, this information is 
available in both the Commission's Issuance Posting System (CIPS) and 
the Records and Information Management System (RIMS):
--CIPS provides access to the texts of formal documents issued by the 
Commission since November 14, 1994.
--CIPS can be accessed using the CIPS link or the Energy Information 
Online icon.
--The full text of this document will be available on IPS in ASCII and 
WordPerfect 8.0 format for viewing, printing, and/or downloading.

    386. RIMS contains images of documents submitted to and issued by 
the Commission after November 16, 1981. Documents from November 1995 to 
the present can be viewed and printed from FERC's Home Page using the 
RIMS link or the Energy Information Online icon. Descriptions of 
documents back to November 16, 1981, are also available from RIMS-on-
the-Web; requests for copies of these and other older documents should 
be submitted to the Public Reference Room.
    387. User assistance is available for RIMS, CIPS, and the 
Commission's web site during normal business hours from our Help line 
at (202) 208-2222 (e-mail

[[Page 31069]]

to Webmaster@ferc.fed.us) or the Public Reference Room at (202) 208-
1371 (e-mail to [email protected]).
    388. During normal business hours, documents can also be viewed 
and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and 
the FERC Web site are available. User assistance is also available.

389. Effective Date and Congressional Notification

    This final rule will take effect on July 8, 2002. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs, of the Office of Management and 
Budget, that this rule is not a ``major rule'' within the meaning of 
section 251 of the Small Business Regulatory Enforcement Fairness Act 
of 1996.\188\ The Commission will submit the Final rule to both houses 
of Congress and the General Accounting Office.\189\
---------------------------------------------------------------------------

    \188\ 5 U.S.C. 804(2).
    \189\ 5 U.S.C. 801(a)(1)(A).
---------------------------------------------------------------------------

List of Subjects

18 CFR Part 2

    Administrative practice and procedure, Electric power, Natural gas, 
Pipelines, Reporting and recordkeeping requirements.

18 CFR Part 35

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


    By the Commission.
Linwood A. Watson, Jr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission amends parts 2 
and 35 in Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 2--GENERAL POLICY AND INTERPRETATIONS

    1. The authority citation for part 2 continues to read as follows:

    Authority. 5 U.S.C. 601; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 792-825y, 2601-2645; 42 U.S.C. 4321-4361, 7101-7352.


Sec. 2.8  [Removed]

    2. Section 2.8 is removed and reserved.

PART 35--FILING OF RATE SCHEDULES AND TARIFFS

    3. The authority citation for part 35 continues to read as follows:

    Authority. 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 
U.S.C. 7101-7352.
    4. The heading for part 35 is revised as set forth above.
    5. In Sec. 35.1, the heading is revised and paragraph (g) is added 
to read as follows:


Sec. 35.1  Application; obligation to file rate schedules and tariffs.

* * * * *
    (g) For the purposes of paragraph (a) of this section, any 
agreement that conforms to the form of service agreement that is part 
of the public utility's approved tariff pursuant to Sec. 35.10a of this 
chapter and any market-based rate agreement pursuant to a tariff shall 
not be filed with the Commission. All agreements must, however, be 
retained and be made available for public inspection and copying at the 
public utility's business office during regular business hours and 
provided to the Commission or members of the public upon request. Any 
individually executed service agreement for transmission, cost-based 
power sales, or other generally applicable services that deviates in 
any material respect from the applicable form of service agreement 
contained in the public utility's tariff and all unexecuted agreements 
under which service will commence at the request of the customer, are 
subject to the filing requirements of this part.

    6. Add Sec. 35.10a to read as follows:


Sec. 35.10a  Forms of service agreements.

    (a) To the extent a public utility adopts a standard form of 
service agreement for a service other than market-based power sales, 
the public utility shall include as part of its applicable tariff(s) an 
unexecuted standard service agreement approved by the Commission for 
each category of generally applicable service offered by the public 
utility under its tariff(s). The standard format for each generally 
applicable service must reference the service to be rendered and where 
it is located in its tariff(s). The standard format must provide spaces 
for insertion of the name of the customer, effective date, expiration 
date, and term. Spaces may be provided for the insertion of receipt and 
delivery points, contract quantity, and other specifics of each 
transaction, as appropriate.
    (b) Forms of service agreement submitted under this section shall 
be in the same format prescribed in Sec. 35.10(b) for the filing of 
rate schedules.

    7. Add Sec. 35.10b to read as follows:


Sec. 35.10b  Electric Quarterly Reports.

    Each public utility shall file an updated Electric Quarterly Report 
with the Commission covering all services it provides pursuant to this 
part, for each of the four calendar quarters of each year, in 
accordance with the following schedule: for the period from January 1 
through March 31, file by April 30; for the period from April 1 through 
June 30, file by July 31; for the period July 1 through September 30, 
file by October 31; and for the period October 1 through December 31, 
file by January 31. Electric Quarterly Reports must be prepared in 
conformance with the Commission's software and guidance posted and 
available for downloading from the FERC Web site (http://www.ferc.gov).

    Note: The following attachments will not be published in the 
Code of Federal Regulations.


  Attachment A.--List of Commenters to NOPR and Data Sets Orders (Along
                With Abbreviations Used To Identify Them)
------------------------------------------------------------------------
                                                   Filed comments on
                                             ---------------------------
           Commenter/abbreviation                             Data sets
                                                  NOPR          order
------------------------------------------------------------------------
Alcoa Power Generating, Inc. (APGI).........            X   ............
American Electric Power System (AEP)........            X             X
American Public Power Association (APPA)....            X   ............
American Transmission Company, LLC..........            X   ............
Avista Energy, Inc. (Avista)................  ............            X
Calpine Corporation (Calpine)...............            X   ............
Carolina Power & Light Company (Carolina)...  ............            X
CLECO Corporation (CLECO)...................            X   ............

[[Page 31070]]

 
CMS Marketing, Services, and Trading Company            X   ............
 and CMS Generation Co. (CMS)...............
Constellation Power Source, Inc.                        X             X
 (Constellation)............................
Consumers Energy Company (Consumers Energy).            X             X
Duke Energy (Duke)..........................            X             X
Dynegy, Inc. (Dynegy).......................            X             X
Edison Electric Institute (EEI).............            X             X
Edison Mission Energy (Edison Mission)......  ............            X
Electric Power Supply Association (EPSA)....            X             X
Engage Energy America LLC (Engage)..........            X   ............
Enron Power Marketing, Inc. (Enron).........            X   ............
Excelon Corporation, et al. (Excelon).......            X   ............
FirstEnergy Corp. (FirstEnergy).............            X   ............
Florida Power and Light Co. (FP&L)..........            X   ............
Illinois Power Company (Illinois Power).....  ............            X
Midwest Independent Transmission System                 X   ............
 Operator, Inc. (Midwest ISO)...............
Minnesota Power.............................            X   ............
Mirant......................................            X   ............
Morgan Stanley Capital Group, Inc. (Morgan              X   ............
 Stanley)...................................
National Association of Regulatory Utility              X   ............
 Commissioners (NARUC)......................
National Grid USA (National Grid)...........            X   ............
New York State Electric & Gas Corporation     ............            X
 (NYSEG)....................................
Oklahoma Gas and Electric Company (OK G&E)..            X   ............
Otter Tail Power Company (Otter Tail).......            X   ............
Pinnacle West Companies (Pinnacle)..........            X   ............
PJM Interconnection, L.L.C. (PJM)...........            X             X
PSEG Service Electric and Gas Co., et al.               X             X
 (PSEG).....................................
Public Utilities Commission of California               X   ............
 (California Commission)....................
Puget Sound Energy, Inc. (Puget Sound)......  ............            X
Reliant Resources, Inc. (Reliant)...........            X             X
South Carolina Electric & Gas Company                   X   ............
 (SCE&G)....................................
Southern Company Services, Inc., et al.                 X             X
 (Southern).................................
Tenaska, Inc., et al. (Tenaska).............            X   ............
Tractebel North America, Inc. (Tractebel)...  ............            X
Transmission Dependent Utility Systems                  X   ............
 (TDUS).....................................
Virginia Electric and Power Company (VEPCO).  ............            X
Western Systems Power Pool, LLC (WSPP)......            X   ............
Williams Energy Marketing & Trading Company             X   ............
 (Williams).................................
Wisconsin Electric Power Company (WEPCO)....  ............            X
Wisconsin Public Service Company, et al.                X   ............
 (Utility Coalition)........................
Xcel Energy Services Inc. (Xcel)............            X   ............
------------------------------------------------------------------------


                                                       Summary of Required Data Sets--Attachment B
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          Contract                           Transaction
   Data collected (field names)*     Id's filer  Commission requirement     data     Commission requirement      data         Commission requirement
--------------------------------------------------------------------------------------------------------------------------------------------------------
 1. company_name...................          X   385.203(a)(10)........          X   Seller: 385.203(a)(2)            X   Seller and Customer: Citizens
                                                                                      and (b)(1) Customer:                 48 FERC para. 61,210. (1989)
                                                                                      35.10(a).                            (Citizens.)
2. company_duns....................          X   ......................          X   OATT Customer:                   X   ..............................
                                                                                      37.5(b)(2) and (b)(3)
                                                                                      [OASIS data element].
3. contact_name....................          X   385.203(a)(10) and
                                                  (b)(3)
4. contact_title...................          X   385.203(a)(10) and
                                                  (b)(3)
5. contact_address.................          X   385.203(a)(10) and
                                                  (b)(3)
6. contact_city....................          X   385.203(a)(10) and
                                                  (b)(3)
7. state_fk........................          X   385.203(a)(10) and
                                                  (b)(3)
8. contact_zip.....................          X   385.203(a)(10) and
                                                  (b)(3)
9. country_name....................          X   385.203(a)(10) and
                                                  (b)(3)
10. contact_phone..................          X   385.203(a)(10) and
                                                  (b)(3)
11. contact_email..................          X   New requirement
12. filing_quarter.................          X   385.203(a)(6) and
                                                  Citizens
13. contract_affiliate.............  ..........  ......................          X   OATT Customer:
                                                                                      35.28(c) [tariff
                                                                                      req't] 37.5(b)(2) and
                                                                                      (b)(3) [OASIS data
                                                                                      element].
14. ferc_tariff_reference..........  ..........  ......................          X   35.9(a); 385.203(a)(1)  ...........  Y \1\.
15. contract_service_agreement_id..  ..........  ......................          X   35.9(a)...............  ...........  Y.
16. contract_execution_dt..........  ..........  ......................          X   35.1(a), 35.12(a),
                                                                                      35.13(b)(6)
17. contract_commencement_dt.......  ..........  ......................          X   35.9(b)(4), 35.12(a),
                                                                                      35.13(b)(2)

[[Page 31071]]

 
18. contract_termination_dt........  ..........  ......................          X   35.1(a) and (d)         ...........  Citizens.
                                                                                      35.12(a), 35.13(b)(6).
19. actual_termination_dt..........  ..........  ......................          X   35.15, 35.16
20. class_name.....................  ..........  ......................          X   35.1(a), 35.12(a)                X   Citizens.
                                                                                      35.13(b)(4) and (6).
21. quantity.......................  ..........  ......................          X   35.1(a), 35.12,
                                                                                      35.13(a), (b)(6) and
                                                                                      (c).
22. rate...........................  ..........  ......................          X   35.1(a), 35.12,                  X   Citizens.
                                                                                      35.13(a), and (c).
23. rate_min.......................  ..........  ......................          X   35.1(a), 35.12,
                                                                                      35.13(a) and (c).
24. rate_max.......................  ..........  ......................          X   35.1(a), 35.12,
                                                                                      35.13(a) and (c)
25. rate_desc......................  ..........  ......................          X   35.1(a), 35.12(b),      ...........  Citizens.
                                                                                      35.13(a) and (c).
26. units..........................  ..........  ......................          X   35.1(a), 35.12,                  X   Citizens.
                                                                                      35.13(a), (b) and (c).
27. point_of_delivery_control_ area  ..........  ......................          X   35.1(a), 35.12,                  X   Citizens.
                                                                                      35.13(a)(2)(6)(iii)
                                                                                      and (b)(6).
28. point_of_delivery_specific_loc.  ..........  ......................          X   35.1(a), 35.12,                  X   Citizens.
                                                                                      35.13(a)(2)(6)(iii)
                                                                                      and (b)(6).
29. point_of_receipt_control_area..  ..........  ......................          X   35.1(a), 35.12,
                                                                                      35.13(a)(2)(6)(iii)
                                                                                      and (b)(6).
30. point_of_receipt_specific_loc..  ..........  ......................          X   35.1(a), 35.12,
                                                                                      35.13(a)(2)(6)(iii)
                                                                                      and (b)(6).
31. begin_date.....................  ..........  ......................          X   35.1(a), 35.12(a),
                                                                                      35.13(b)(6)
32. end_date.......................  ..........  ......................          X   35.1(a), 35.12(a),
                                                                                      35.13(b)(6)
33. extensionprovisiondesc.........  ..........  ......................          X   35.1(a), 35.12(a),      ...........  Citizens.
                                                                                      35.13(b)(4) and (6).
34. incrementname..................  ..........  ......................          X   35.1(a), 35.12(a),               X   Citizens.
                                                                                      35.13(b)(4).
35. increment_peaking_name.........  ..........  ......................          X   35.1(a), 35.12(a),               X   Citizens.
                                                                                      35.13(b)(4).
36. product_name...................  ..........  ......................          X   35.1(a), 35.12(a),               X   Citizens.
                                                                                      35.13(b)(4).
37. product_type_name..............  ..........  ......................          X   35.1(a), 35.12(a),
                                                                                      35.13(b)(4)
38. term_name......................  ..........  ......................          X   35.1(a), 35.12(a),               X
                                                                                      35.13(b)(4) and (6).
39. transaction_end_dt.............  ..........  ......................  ..........  ......................           X   Citizens.
40. total_transmission_charge......  ..........  ......................  ..........  ......................           X   Citizens.
41. total_transaction_ charge......  ..........  ......................  ..........  ......................           X   Short-term: Southern II, 75
                                                                                                                           FERC para. 61,130 (1996).
42. transaction_begin_dt...........  ..........  ......................  ..........  ......................           X   Citizens.
43. transaction_quantity...........  ..........  ......................  ..........  ......................           X   Citizens.
44. transaction_id.................  ..........  ......................  ..........  ......................           X   New requirement.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 *The data set field names are defined in Appendix A of the Data Sets Order and use the following abbreviations: id=identifier, dt=date,
  desc=description, loc=location, fk=foreign key.
\1\ Data elements marked with a ``Y'' will be included as transaction data in interim filings. Thereafter, they will be reported as contract data.


                           Header Information
------------------------------------------------------------------------
         Information                           Definition
------------------------------------------------------------------------
filing agent company name....  Name of company (for consistency sake, it
                                must be represented the same as it is
                                listed in the DUNS Report.)
respondent company name......
seller company name..........
seller DUNS number...........  DUNS Number for Company Unique
                                Identification.
contact name.................  Name of contact(s) for the filing (may be
                                from the filer, respondent, and/or
                                seller).
contact title................  Title of contact.
contact address..............  Street address for contact.
contact city.................  Contact city.
state........................  Two character state or province
                                abbreviation.
contact zip..................  Contact zip code.
country name.................  Country (USA, Canada, or Mexico) for
                                contact address.
contact phone................  Phone number of contact.
contact email................  E-mail address of contact.
filing quarter...............  The period for which the Electric
                                Quarterly Report is being submitted.
------------------------------------------------------------------------
 
                           CONTRACT INFORMATION
------------------------------------------------------------------------
 
 seller company name.........  Name of company (For consistency sake, it
                                must be represented the same as it is
                                listed in the DUNS Report.)
customer company name........
customer DUNS number.........  DUNS Number for Company Unique
                                Identification.
contract affiliate...........  This is a flag to determine if the
                                customer is an affiliate. Set to Yes if
                                the customer is an affiliate of the
                                provider.
FERC tariff reference........  Valid Entries: FERC's designation, e.g.,
                                ``FERC Electric Tariff, Second Revised
                                Volume No. 5, Schedule 2;'' or ``FERC
                                Electric Rate Schedule No. 126.''.
contract service agreement id  Unique identifier for the contract used
                                by the seller.
contract execution date......  Date contract was signed by contracting
                                parties.

[[Page 31072]]

 
contract commencement date...  Date service under the contract
                                commenced.
contract termination date....  Specified contract termination date.
actual termination date......  If parties terminate the contract at a
                                date different from that specified in
                                the contract, then the date must be
                                specified here.
class name...................  Transmission service class provided as
                                defined in OASIS. Name of class. Valid
                                entries are ``Firm, Non-Firm, ``TTC'',
                                ``Secondary'', ``N/A'', or {registered}.
extension provision            Description of extension provision. This
 description.                   field would contain Text--for example
                                ``Automatically renewed until
                                canceled.''.
product type name............  The ``Product type name'' includes: T =
                                Electric Transmission, MB = Market
------------------------------------------------------------------------


        Electric Quarterly Report Data Description--Attachment C
------------------------------------------------------------------------
         Information                           Definition
------------------------------------------------------------------------
                          CONTRACT INFORMATION
------------------------------------------------------------------------
 
                               Based Power, CB = Cost Based Power, S =
                                Services--Other, or {registered}
term name....................  Name for term. LT = Long-Term (>= one
                                year), ST= Short- Term ( one year).
increment name...............  Name of increment. The increment selected
                                would be one of the following: H =
                                Hourly, D = Daily, W = Weekly, M =
                                Monthly, Y = Yearly (or Annually) or
                                {Registered}. (New items may be included
                                in this list provided they are
                                registered with FERC prior to their
                                inclusion in the filing.)
increment peaking name.......  Name for increment peaking. For products,
                                services or transaction that are
                                identified as ``P'' = on Peak, ``OP'' =
                                Off-Peak, ``FP'' = Full Period, ``NA'' =
                                Not Applicable for this product, service
                                or transaction; or {registered}. (New
                                items may be included in this list
                                provided they are registered with FERC
                                prior to their inclusion in the filing.)
product name.................  A product is something being bought and
                                sold, a type of service or standard
                                agreement.
                               Examples: Point-To-Point; Network;
                                Capacity; Installed Capacity; SC--
                                Scheduled system control and dispatch;
                                RV--Reactive supply and vol. control;
                                RF--Regulation and freq. response; EI--
                                Energy imbalance; SP--Spinning reserve;
                                SU--Supplemental reserve; DT--Dynamic
                                Transfer; TL--Real Power Transmission
                                Loss; BS--System Black Start Capability;
                                Must Run Unit; Market Based Power Sale;
                                Cost Based Power Sale; Economy Power
                                Sale; Emergency Power Sale; General
                                Purpose Power Sale; Unit Power Sales;
                                Border Sales; Specialized affiliate
                                transactions; Interconnection
                                Agreements; System Impact and/or
                                Facilities Study Charge(s); Direct
                                Assignment Facilities Charge
                                {registered} (New products may be
                                included in this list provided they are
                                registered with FERC prior to their
                                inclusion in the filing.)
quantity.....................  Product quantity for the contract item
                                identified.
rate.........................  Rate charged for this product per unit.
                                Used when a single rate is designated
                                for a product.
rate minimum.................  Minimum rate to be charged per the
                                contract, if a range is specified.
rate maximum.................  Maximum rate to be charged per the
                                contract, if a range is specified.
rate description.............  Text description of rate. May reference
                                FERC tariff, or, description if a
                                discounted or negotiated rate, include
                                algorithm.
units........................  The unit of measurement for the quantity
                                and rates represented. Examples include
                                KW, MW and MWH.
point of receipt control area  Point of receipt control area. Examples
                                include ``AEP'', ``JACK'', ``FE''.
                                (These values will match what is
                                provided area for in the OASIS.)
point of delivery control      Point of delivery control area. Examples
 area.                          include ``AEP'', ``JACK'', and ``FE''.
                                (These values will match what is
                                provided for in the OASIS).
point of receipt specific      The specific location for the point of
 location.                      receipt (POR) as spelled out in the
                                contract. Examples include a named sub-
                                station or generation plant.
point of delivery specific     The specific location for the point of
 location.                      delivery (POD) as spelled out in the
                                contract. Examples include a named sub-
                                station or generation plant.
begin date...................  Beginning date of for the product
                                specified (this should be specified here
                                as explicitly as it is specified in the
                                contract, i.e., yyyy+mo+dd+hh+mm+ss+tz).
                                TZ=time zone.
end date.....................  Ending date for the product specified
                                (this should be specified here as
                                explicitly as it is specified in the
                                contract, i.e., yyyy+mo+dd+hh+mm+ss+tz).
                                TZ=time zone.
------------------------------------------------------------------------
 
                         TRANSACTION INFORMATION
------------------------------------------------------------------------
 
 seller company name.........  Name of company (for consistency sake, it
customer company name........   must be represented the same as it is
                                listed in the DUNS Report.)
customer DUNS number.........  DUNS Number for Company Unique
                                Identification.
contract service agreement id  Unique identifier for the contract used
                                by the seller.
transaction id...............  Unique reference number assigned by the
                                seller for each transaction.
class name...................  Name of class. Valid entries are
                                ``Firm'', ``Non-Firm'', ``Secondary'',
                                ``N/A'', or {registered}.
product name.................  A product is something being bought and
                                sold, a type of service or standard
                                agreement.

[[Page 31073]]

 
                               Examples: Energy; Capacity; SC--Scheduled
                                system control and dispatch; RV--
                                Reactive supply and vol. control; RF--
                                Regulation and freq. response; EI--
                                Energy imbalance; SP--Spinning reserve;
                                SU--Supplemental reserve; DT--Dynamic
                                Transfer; TL--Real Power Transmission
                                Loss; BS--System Black Start Capability;
                                Must Run Unit; Cost Based Power Sale;
                                Economy Power Sale; Emergency Power
                                Sale; General Purpose Power Sale; Unit
                                Power Sales; Border Sales; Specialized
                                affiliate transactions; {registered}
                                (New products may be included in this
                                list provided they are registered with
                                FERC prior to their inclusion in the
                                filing.)
term name....................  Name for term. LT = Long-Term (>= one
                                year), ST= Short- Term ( one year).
transaction begin date.......  Transaction begin date must be prior to
                                the end of the reporting quarter. Date
                                must contain hours, minutes, seconds,
                                and time zone (MM.DD.YYYY.HH.MM.SS.TZ).
                                Where minutes and seconds are not
                                provided, default to zeros.
transaction end date.........  Transaction end date and time must be
                                after the beginning of the reporting
                                quarter. Date must contain hours,
                                minutes, seconds, and time zone
                                (MM.DD.YYYY.HH.MM.SS.TZ). Where minutes
                                and seconds are not provided, default to
                                zeros.
transaction quantity.........  The quantity of the product in this
                                transaction. This quantity could be a
                                whole number or it could include
                                decimals.
rate.........................  Rate charged for this item per unit. Used
                                with contract data when a single rate is
                                designated for a product. Used with
                                transaction data to designate the
                                transaction period's actual rate.
units........................  The unit of measurement for the quantity
                                and rates represented. Examples include
                                KW, MW and MWH.
point of Point of delivery     Examples include ``AEP'', ``JACK'', and
 control area..                 ``FE''. (These values will match what is
                                provided for in the OASIS.)
point of delivery specific     The specific location for the point of
 location.                      delivery (POD) as spelled out in the
                                contract. Examples include named sub-
                                station or generation plant.
increment name...............  Name of increment which would be one of
                                the following: H = Hourly, D = Daily, W
                                = Weekly, M = Monthly, Y = Yearly (or
                                Annually) or {Registered}. (New items
                                may be included in this list provided
                                they are registered with FERC prior to
                                their inclusion in the filing.)
increment peaking name.......  Name for increment peaking. For products,
                                services or transaction that are
                                identified as ``P'' = on Peak, ``OP'' =
                                Off-Peak, ``FP'' = Full Period, ``NA'' =
                                Not Applicable for this product, service
                                or transaction; or {registered}. (New
                                items may be included in this list
                                provided they are registered with FERC
                                prior to their inclusion in the filing.)
total transmission charge....  State N/A if transmission is not provided
                                by the selling entity, else this
                                represents the total transmission charge
                                associated with the identified power
                                sale transaction.
total transaction charge.....  Total revenue for transaction, including
                                for the commodity and all other services
                                related to the commodity charge sale
                                under the terms of the contract,
                                including bundled ancillary and
                                transmission services provided by the
                                respondent or others. This is in dollars
                                and cents.
FERC tariff reference........  Valid Entries: FERC's designation, e.g.,
                                ``FERC Electric Tariff, Second Revised
                                Volume No. 5, Schedule 2;'' or ``FERC
                                Electric Rate Schedule No. 126.'' \1\
------------------------------------------------------------------------
\1\ This data element will be included as transaction data in interim
  filings. Thereafter, it will be reported as contract data.

[FR Doc. 02-10806 Filed 5-7-02; 8:45 am]
BILLING CODE 6717-01-P