[Federal Register Volume 78, Number 50 (Thursday, March 14, 2013)]
[Rules and Regulations]
[Pages 16133-16138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-05856]



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  Federal Register / Vol. 78, No. 50 / Thursday, March 14, 2013 / Rules 
and Regulations  

[[Page 16133]]



DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 366

[Docket No. RM11-12-001; Order No. 771-A]


Availability of E-Tag Information to Commission Staff

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Order on rehearing and clarification.

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SUMMARY: In this order on rehearing and clarification, the Federal 
Energy Regulatory Commission (the Commission) clarifies that: Balancing 
Authorities and their Authority Services will have until 60 days after 
publication of this order to implement the validation requirements of 
Order No. 771; validation of e-Tags means that the Sink Balancing 
Authority, through its Authority Service, must reject any e-Tags that 
do not correctly include the Commission in the CC field; the 
requirement for the Commission to be included in the CC field on the e-
Tags applies only to e-Tags created on or after March 15, 2013; the 
Commission will deem all e-Tag information made available to the 
Commission pursuant to Order No. 771 as being submitted pursuant to a 
request for privileged and confidential treatment under 18 CFR 388.112; 
the Commission is to be afforded access to the Intra-Balancing 
Authority e-Tags in the same manner as interchange e-Tags; and the 
requirement on Balancing Authorities to ensure Commission access to e-
Tags pertains to the Sink Balancing Authority and no other Balancing 
Authorities that may be listed on an e-Tag.

FOR FURTHER INFORMATION CONTACT:

Maria Vouras (Technical Information), Office of Enforcement, Federal 
Energy Regulatory Commission, 888 First Street NE., Washington, DC 
20426, Telephone: (202) 502-8062, Email: [email protected].
William Sauer (Technical Information), Office of Energy Policy and 
Innovation, Federal Energy Regulatory Commission, 888 First Street NE., 
Washington, DC 20426, Telephone: (202) 502-6639, Email: 
[email protected].
Gary D. Cohen (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE., Washington, 
DC 20426, Telephone: (202) 502-8321, Email: [email protected].

SUPPLEMENTARY INFORMATION: 

Order on Rehearing and Clarification

Table of Contents


I. Overview......................................................      2
II. Introduction.................................................      3
III. Discussion..................................................      9
    A. Requests for Extensions of Time...........................      9
    B. Requests for Rehearing and Clarification..................     14
        1. Validation of the Commission on E-Tags................     14
        2. Prospective Effect of Order No. 771...................     22
        3. Confidentiality of E-Tag Data Provided to Commission..     24
        4. Internal E-Tags.......................................     31
        5. Balancing Authorities.................................     34
 


Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, 
John R. Norris, Cheryl A. LaFleur, and Tony Clark.
Issued March 8, 2013.

    1. On December 20, 2012, the Commission issued Order No. 771, a 
Final Rule that amended the Commission's regulations to grant the 
Commission access, on a non-public and ongoing basis, to the complete 
electronic tags (e-Tags) used to schedule the transmission of electric 
power interchange transactions in wholesale markets.\1\ Order No. 771 
requires e-Tag Authors (through their Agent Service) and Balancing 
Authorities (through their Authority Service), beginning on March 15, 
2013, to take appropriate steps to ensure Commission access to the e-
Tags covered by this Final Rule by designating the Commission as an 
addressee on the e-Tags. In response to this rule, requests for 
rehearing and/or clarification were filed by four entities. The 
National Rural Electric Cooperative Association (NRECA) individually 
filed a request for rehearing and also filed, together with Edison 
Electric Institute (EEI), a joint request for rehearing and 
clarification that included a motion for an expedited response to its 
motion for an extension of the compliance deadlines prescribed in the 
rule. Southern Company Services, Inc. (Southern) similarly filed a 
request for rehearing and clarification that included a request for 
expedited consideration of a request for a time extension. In addition, 
Open Access Technology International, Inc. (OATI) filed a request for 
clarification. A motion for leave to answer and answer was filed by PJM 
Interconnection, L.L.C. (PJM) and Southwest Power Pool, Inc. (SPP) 
(collectively, PJM/SPP). In this order, the Commission addresses only 
those issues that need to be answered on an expedited basis to allow 
entities affected by this rule to understand their obligations and 
comply with the requirement to ensure Commission access to the e-Tags 
covered by the Final Rule in a timely manner. In due course, the 
Commission will issue an additional rehearing order, addressing the 
remaining issues raised on rehearing and clarification. As discussed 
further below, the Commission also issued a notice on February 1, 2013, 
granting limited time extensions but requiring compliance by March 15, 
2013 for the bulk of the requirements under the rule.
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    \1\ Availability of E-Tag Information to Commission Staff, Order 
No. 771, 77 FR 76367 (Dec. 28, 2012), FERC Stats & Regs ] 31,339 
(2012).

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[[Page 16134]]

I. Overview

    2. In this order, the Commission clarifies that: (1) Balancing 
Authorities and their Authority Services \2\ will have until 60 days 
after publication of this order to implement the validation 
requirements of Order No. 771; (2) validation of e-Tags means that the 
Sink Balancing Authority, through its Authority Service, must reject 
any e-Tags that do not correctly include the Commission in the CC 
field; \3\ (3) the requirement for the Commission to be included in the 
CC field on the e-Tags applies only to e-Tags created on or after March 
15, 2013; (4) the Commission will deem all e-Tag information made 
available to the Commission pursuant to Order No. 771 as being 
submitted pursuant to a request for privileged and confidential 
treatment under 18 CFR 388.112; (5) the Commission is to be afforded 
access to the Intra-Balancing Authority e-Tags in the same manner as 
interchange e-Tags; and (6) the requirement on Balancing Authorities to 
ensure Commission access to e-Tags pertains to the Sink Balancing 
Authority and not other Balancing Authorities that may be listed on an 
e-Tag.
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    \2\ An Authority Service is the ``focal point for all 
interactions with an e-Tag and maintains the single authoritative 
`copy of record' for each e-Tag received.'' See NAESB Electronic 
Tagging Functional Specifications, Version 1.8.1.1, section 1.4.1.2, 
at p. 24. Every Sink Balancing Authority is responsible for 
registering an URL of an Authority Service. The Authority Service 
forwards all valid received e-Tag requests to each entity identified 
in the transaction as having ``approval'' or ``viewing'' rights over 
the request and collects approvals/denials. The Authority Service 
then sends final disposition of the request to each entity in the 
distribution list. See id. Authority Services are currently provided 
by a small number of commercial software vendors.
    \3\ In previous times, the term ``CC'' referred to those who 
would be given a carbon copy; the term has been carried over into 
the electronic age. E-Tag Authors may include a CC list (Carbon Copy 
List) on their e-Tags specifying the entities that will be provided 
with a copy of the e-Tag without being given approval rights. See 
NAESB Electronic Tagging Functional Specifications, Version 1.8.1.1, 
section 1.4.11, at p. 37.
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II. Introduction

    3. E-Tags, also known as Requests for Interchange (RFI), are used 
to schedule interchange transactions in wholesale markets. Generally, 
e-Tags document the movement of energy across an interchange over 
prescribed physical paths, for a given duration, and for a given energy 
profile(s), and include information about those entities with financial 
responsibilities for the receipt and delivery of the energy. As stated 
in Order No. 771, the Commission determined that access to complete e-
Tag data \4\ will help the Commission in its efforts to detect market 
manipulation and anti-competitive behavior, monitor the efficiency of 
the markets, and better inform Commission policies and decision-
making.\5\
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    \4\ Order No. 771 defined ``complete e-Tags'' for purposes of 
this rulemaking proceeding as: (1) e-Tags for interchange 
transactions scheduled to flow into, out of, or within the United 
States' portion of the Eastern or Western Interconnection, or into 
the Electric Reliability Council of Texas and from the United 
States' portion of the Eastern or Western Interconnection, or from 
the Electric Reliability Council of Texas into the United States' 
portion of the Eastern or Western Interconnection; and (2) 
information on every aspect of each such e-Tag, including all 
applicable e-Tag IDs, transaction types, market segments, physical 
segments, profile sets, transmission reservations, and energy 
schedules. See Order No. 771, FERC Stats & Regs ] 31,339 at n.2.
    \5\ Order No. 771, FERC Stats & Regs ] 31,339 at P 27.
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    4. As the Commission explained in Order No. 771, the Commission 
needs e-Tag data covering all transactions involving interconnected 
entities listed on the e-Tag because the information is necessary to 
understand the use of the interconnected electricity grid, and 
particularly those transactions occurring at interchanges.\6\ The 
Commission also found in Order No. 771 that regular access to e-Tags 
for power flows across interchanges will make it possible for the 
Commission to identify or analyze various behaviors by market 
participants to determine if they are part of a potentially 
manipulative scheme(s).\7\ As demonstrated by recent investigations by 
the Commission's Office of Enforcement, for example, e-Tag information 
can enable the Commission to investigate whether entities may be 
engaging in manipulative schemes involving the circular scheduling of 
imports and exports into a market to benefit other positions held by 
these entities.\8\ The Commission also noted that e-Tag access will 
help the Commission to understand, identify, and address instances 
where interchange pricing methodologies or scheduling rules result in 
inefficiencies and increased costs to market participants 
collectively.\9\ The Commission also noted that access to e-Tag 
information will allow the Commission to determine whether the 
requirements of the mandatory business practice standards related to e-
Tags have been met.\10\
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    \6\ Id.
    \7\ Id. P 28.
    \8\ Id. P 28, n.72 (citing Gila River Power, LLC, 141 FERC ] 
61,136 (2012)).
    \9\ Id. P 29.
    \10\ Id.
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    5. In Order No. 771, the Commission required e-Tag Authors, through 
their Agent Service, and Balancing Authorities, through their Authority 
Service, to take appropriate steps to ensure that the Commission is 
included as an addressee on all e-Tags for interchange transactions 
scheduled to flow into, out of, or within the United States' portion of 
the Eastern or Western Interconnection, or into Electric Reliability 
Council of Texas (ERCOT) and from the United States' portion of the 
Eastern or Western Interconnection; or from ERCOT into the United 
States' portion of the Eastern or Western Interconnection.\11\ The 
Commission required that the e-Tag Authors include the Commission on 
the CC list of entities with view-only rights to the e-Tags described 
above. Further, the Commission required that the Balancing Authorities 
(located within the United States) validate the inclusion of the 
Commission on the CC list of the e-Tags before those e-Tags are 
electronically delivered to an address specified by the Commission.\12\
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    \11\ Id. P 1; see also 18 CFR 366.2(d).
    \12\ Id. P 41.
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    6. Order No. 771 also required that Regional Transmission 
Organizations (RTO), Independent System Operators (ISO) and their 
Market Monitoring Units (MMU) shall be afforded access to complete e-
Tags, upon request to e-Tag Authors and Authority Services, subject to 
their entering into appropriate confidentiality agreements.
    7. As noted above, requests for rehearing and/or clarification of 
Order No. 771 were filed by four entities.\13\ In addition, PJM/SPP 
filed a motion for leave to answer and answer in response to the 
requests for rehearing and clarification. Rule 713(d) of the 
Commission's Rules of Practice and Procedure prohibits an answer to a 
request for rehearing.\14\ Accordingly, we will reject the answer.
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    \13\ See supra P 1.
    \14\ 18 CFR 713(d) (2012).
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    8. The main concern raised by EEI/NRECA in its joint request for 
rehearing and clarification pertains to the requirement that Sink 
Balancing Authorities and their Authority Services must validate that 
the Commission is a CC recipient of the e-Tags.\15\ NRECA's 
individually filed rehearing request questions the Commission's legal 
authority to require access to e-Tag data. Southern filed a request for 
rehearing and clarification raising a number of issues, including: the 
responsibilities of Balancing Authorities with respect to e-Tag data; 
maintaining the confidentiality of e-Tag data; the applicability of the 
Final Rule to new e-Tags; and what e-Tag data can be

[[Page 16135]]

requested by RTO/ISO MMUs. OATI \16\ filed a request for clarification 
asking three questions: (1) Whether the requirements in the Final Rule 
pertain only to Sink Balancing Authorities; (2) what e-Tag data can be 
requested by RTOs, ISOs, and MMUs; and (3) what confidentiality 
restrictions should apply to such requests. As stated above, in this 
order, the Commission will address only those issues that require an 
expedited response from the Commission to allow entities affected by 
this rule to understand their obligation to ensure Commission access to 
e-Tag data and comply with the rule in a timely manner. The Commission 
will issue an additional rehearing order in due course to address 
remaining issues, including its legal authority to access e-Tags.
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    \15\ EEI/NRECA at 2.
    \16\ OATI states that it provides software solutions in the 
North American energy industry, including e-Tag services (through 
OATI webTag). OATI states it also provides Agent Services and 
Authority Services to e-Tag Authors and Balancing Authorities, 
respectively. See OATI at 1.
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III. Discussion

A. Requests for Extensions of Time

1. Comments
    9. NRECA requests that the Commission issue an interim order on 
rehearing extending Order No. 771's compliance deadline of March 15, 
2013 until 60 days after the Commission acts on the merits of NRECA's 
request for rehearing. EEI/NRECA also filed a motion for expedited 
extension of the March 15, 2013 compliance deadline, asking that the 
Commission grant the motion by February 15, 2013.\17\ Specifically, 
EEI/NRECA ask the Commission to extend the deadline for including the 
Commission in the CC field of the requisite e-Tags to 60 days after the 
Commission responds to the EEI/NRECA request for rehearing and 
clarification and, if the Commission retains the validation 
requirement, the Commission should extend the deadline until 60 days 
after the North American Energy Standards Board's (NAESB) e-Tag 
protocols are modified to implement the requirement.\18\ Southern also 
filed a motion for extension of time, asking that the Commission extend 
the effective date to 60 days after NAESB implements the revisions to 
its protocols to automate the system required to implement the Final 
Rule.
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    \17\ EEI/NRECA at 3.
    \18\ Id. at 5.
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2. Commission Determination
    10. The Commission considers it important to begin obtaining the 
data on e-Tags as soon as possible so that we can begin to analyze the 
data and enhance our ability to carry out our regulatory missions of 
detecting market manipulation and inefficient market rules and taking 
appropriate action, where needed, to address any such problems. 
Accordingly, the Commission is averse to allowing any unnecessary 
delays before the requirements of Order No. 771 become effective.
    11. Nevertheless, when the Commission reviewed the requests for 
rehearing and for clarification, we determined that some of the 
rehearing requests asked important questions that needed explanation 
before action could be taken to comply with the rule. For this reason, 
the Commission issued a notice, on February 1, 2013, extending the time 
until Balancing Authorities are to be required to validate the 
inclusion of the Commission on e-Tags until 30 days after the issuance 
of an order, this order, which clarifies exactly what is entailed by 
such validation. To ensure that Balancing Authorities have sufficient 
time to implement this requirement, this order extends the time for 
Balancing Authorities to comply with the validation requirement until 
60 days from the date of publication of this order in the Federal 
Register.
    12. Given the importance of the objectives served by issuance of 
Order No. 771, our notice of a limited time extension denied all other 
requested time extensions and affirmed the time deadlines prescribed in 
the Final Rule in all other respects. Therefore, given our 
clarification in this order of the obligations of Sink Balancing 
Authorities regarding the validation of Commission access to e-Tags, 
Balancing Authorities will have until 60 days after publication of this 
order to implement the validation requirement, as clarified below.
    13. We also note that requests for rehearing and/or clarification 
do not act as a stay of the compliance obligations prescribed in final 
orders.\19\ As stated in the February 1, 2013 notice, full compliance 
with all other obligations under Order No. 771 is required by March 15, 
2013.
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    \19\ See 18 CFR 713(e) (2012).
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B. Requests for Rehearing and Clarification

1. Validation of the Commission on E-Tags
a. Comments
    14. EEI/NRECA and Southern encourage the Commission to eliminate 
the validation requirement if validation means that the Sink Balancing 
Authority or its Authority Service should reject an e-Tag that does not 
include the Commission in the CC field.\20\ EEI/NRECA and Southern 
states that if validation means rejecting e-Tags that do not include 
the Commission, then the Commission should direct the industry to 
adjust the NAESB protocols to enable an automated process for 
validation and careful implementation of the requirement.\21\
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    \20\ EEI/NRECA at 4; Southern at 5-6.
    \21\ EEI/NRECA at 2; Southern at 6.
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    15. According to Southern, rejecting e-Tags that do not CC the 
Commission could result in significant commercial and reliability 
disruptions.\22\ EEI/NRECA also assert that rejecting e-Tags could 
disrupt necessary power deliveries and implementing the change via 
changes to the NAESB e-Tag protocols would avoid or minimize negative 
consequences.\23\ EEI/NRECA add that if a Balancing Authority or 
Authority Service reject an e-Tag and, thus, the power delivery it 
covers, the e-Tag Author's only option may be to recreate the e-Tag if 
time and circumstances permit.\24\
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    \22\ Southern at 6.
    \23\ EEI/NRECA at 2, 4.
    \24\ Id. at 7.
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    16. EEI/NRECA add that Sink Balancing Authorities and their 
Authority Services may mistakenly reject an e-Tag and associated 
delivery in error, when in fact the particular e-Tag is not required to 
be CC'd to the Commission, such as for an internal or international 
transaction.\25\ EEI/NRECA state that developing and implementing such 
a change to NAESB protocols would take more time than the March 15, 
2013 implementation deadline allows, possibly a year or more, 
especially if NAESB addresses e-Tag issues other than validation.\26\ 
Southern states that, at most, the Commission should require the 
Authority Services to add the Commission to the CC field, when 
appropriate, but states that even this effort will require a reasonable 
amount of time to provide for software changes and implementation.\27\
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    \25\ Id.
    \26\ Id.
    \27\ Southern at 6.
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b. Commission Determination
    17. The Commission has been asked to clarify whether the 
Commission's directive in Order No. 771 (that Balancing Authorities, 
through their Authority Services, validate that the Commission be given 
access to e-Tags) requires rejection of e-Tags that fail to include the 
Commission on the CC list as required, or merely requires Balancing 
Authorities to notify the Commission that the e-Tag Author has failed 
to include the Commission on an

[[Page 16136]]

e-Tag. We also have been asked to abandon or delay this requirement, if 
validation means that tags that fail to include the Commission on the 
CC list are to be rejected.
    18. Our requirement in Order No. 771 for validation of e-Tags by 
Balancing Authorities, through their Authority Services, means that 
Balancing Authorities are to reject e-Tags that fail to include the 
Commission on the CC list and not merely notify the Commission that 
this requirement has not been met; the Commission's objective is to 
gain access to the e-Tags covered by the Final Rule. Furthermore, we 
reject the suggestion that we abandon this requirement as the 
Commission is interested in actually obtaining access to the 
information and is not merely interested in compiling a list of those 
that fail to provide the required access to the information. Without a 
validation process in place, the Commission would need to employ 
additional, less efficient checks to ensure that the Commission is 
obtaining consistent access to all relevant e-Tags.\28\
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    \28\ Neither the Final Rule nor this order preclude Sink 
Balancing Authorities and their Authority Services from conferring 
and agreeing on the best way to implement the validation requirement 
within the time limits provided by this order.
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    19. We also reject the suggestions by EEI/NRECA and Southern that 
we should delay implementation of the validation requirement until such 
time as the industry, through NAESB, can develop a formalized automated 
process. While we have no objection to the industry formalizing the 
manner in which validation will be performed by asking NAESB to develop 
a standard covering this, we are unwilling to allow such a process to 
delay Commission access to this important information and, accordingly, 
decline to defer compliance until the development of a formal NAESB 
business practice standard on this topic.\29\
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    \29\ We note, however, that in its comments filed on March 26, 
2012, in response to the Notice of Proposed Rulemaking in this 
proceeding, NAESB stated that there may be ``fairly simple technical 
approaches'' to meet the Commission's request to receive all e-Tags 
used to schedule the transmission of power.
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    20. Additionally, as discussed above, the Commission has already 
provided Balancing Authorities (and their Authority Services) with an 
extension to accommodate their devising a system to comply with the 
requirement that they must validate Commission access to e-Tags until 
60 days after the publication of this order. By extending the 
validation requirement for Balancing Authorities until 60 days after 
the publication of this order, rather than March 15, 2013 (the 
implementation date for aspects of Order No. 771), we are providing e-
Tag Authors and Balancing Authorities a testing period before all 
requirements of Order No. 771 take effect. During this testing period, 
e-Tag Authors will be able to comply with the Final Rule without 
concern over whether their e-Tags will be rejected. Also during this 
period, the Balancing Authorities (through their Authority Service) can 
assess e-Tags submitted by e-Tag Authors after-the-fact and alert e-Tag 
Authors to practices that would result in rejection once the validation 
mechanisms are in place. Accordingly, we believe this staggered 
approach will allow for the development of an automated process and 
limit any operational or reliability issues associated with validation 
requirements by giving e-Tag Authors and Balancing Authorities time to 
familiarize themselves with the process of providing the Commission 
with access to e-Tags, prior to all of the requirements of Order No. 
771 taking effect.
    21. In its comments, OATI states that it plans to offer additional 
automated functionality to Balancing Authorities to further enable them 
to satisfy their obligations under the Final Rule.\30\ OATI further 
notes that scoping, development, testing, training and deployment of 
automated functionality typically requires at least four weeks, and 
sometimes longer, depending on the particular service.\31\ Staff's 
research indicates that the vast majority of Balancing Authorities 
(i.e., 135 out of 148 total Balancing Authorities registered in the 
OATI webRegistry) rely on OATI to provide their Authority Service; nine 
Balancing Authorities rely on another e-Tag service provider; three do 
not have a registered Authority Service; and one appears to provide its 
own Authority Service.\32\ Given the extension of time granted with 
regard to the validation requirement, we anticipate that Balancing 
Authorities and their Authority Services will be able to validate the 
Commission's inclusion on e-Tags once this requirement takes effect.
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    \30\ OATI at 2.
    \31\ Id. at 2.
    \32\ These figures are based on staff analysis of the OATI 
webRegistry, or NAESB Electric Industry Registry, published on 
February 22, 2013.
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2. Prospective Effect of Order No. 771
a. Comments
    22. EEI/NRECA and Southern seek clarification that the requirement 
to CC the Commission on e-Tags applies only to e-Tags created starting 
on or after the Order No. 771 compliance date, not ones created prior 
to the compliance date even if covering deliveries occurring after that 
date.\33\ EEI/NRECA and Southern note that, under the current NAESB 
protocols, an e-Tag cannot be modified after it has been created. 
Therefore, EEI/NRECA argue that modification of e-Tags created prior to 
the compliance date for delivery after the compliance date would entail 
terminating or recreating the e-Tags.\34\ Southern argues that, if all 
e-Tags already generated before the effective date of the Final Rule 
must be stopped and regenerated when the new requirements become 
effective, the result will be massive disruption of physical power 
transfers.\35\
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    \33\ EEI/NRECA at 9; Southern Companies at 3, 7.
    \34\ EEI/NRECA at 9.
    \35\ Southern at 7.
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b. Commission Determination
    23. We clarify that the requirement for the Commission to be 
included in the CC field on the e-Tags applies only to e-Tags created 
on or after the compliance date of Order No. 771 (i.e., March 15, 
2013). Accordingly, pre-existing e-Tags do not need to be stopped, 
regenerated, or otherwise modified.
3. Confidentiality of E-Tag Data Provided to Commission
a. Comments
    24. EEI/NRECA encourage the Commission to ensure that its recently 
revised regulations for privileged and confidential information at 18 
CFR Part 388 will not inadvertently create any problems for protecting 
the confidentiality of e-Tag data.\36\ EEI/NRECA argue that, as 
amended, 18 CFR 388.112(b)(1) generally requires parties filing 
confidential information to identify the filing as containing 
confidential information with certain markings on each page and 
justification for non-release and other requirements that are not 
workable in the e-Tag context.\37\
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    \36\ EEI/NRECA at 5.
    \37\ Id. at 10.
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    25. Similarly, Southern asks the Commission to clarify that 
Balancing Authorities are not obligated to put a ``confidentiality 
stamp'' on e-Tags, as required for documents to prevent them from 
disclosure.\38\ EEI/NRECA and Southern ask the Commission to specify 
that it will handle all e-Tag information as confidential without the 
need to comply with the requirements of section 388.112 of the 
Commission's regulations and that the Commission will not

[[Page 16137]]

release the information to third parties in response to a FOIA request 
without first notifying the e-Tag Author and giving the e-Tag Author 
adequate time to respond to the request by justifying non-
disclosure.\39\ EEI/NRECA add that any information the author 
identifies as confidential is protected by a confidentiality agreement 
if it is released in response to a FOIA request.
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    \38\ Id. at 3, 8.
    \39\ EEI/NRECA at 10; Southern at 3, 9.
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    26. Southern asks the Commission to clarify that, once e-Tag 
information is provided to the Commission, it meets the requirements of 
exemption 4 under FOIA, as it is information that would be otherwise 
privileged or confidential.\40\ In addition, Southern states that 
Balancing Authorities should not be liable for any disclosure of 
confidential e-Tag information, including inadvertent publication of e-
Tag information by a recipient of e-Tag data under Order No. 771 and 
publication of e-Tag data subject to FOIA.\41\
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    \40\ Southern at 3, 8.
    \41\ Id. at 9.
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b. Commission Determination
    27. In light of the concerns raised by EEI/NRECA with respect to 
claims of privileged or confidential information, the Commission will 
handle e-Tag information as privileged or confidential under section 
388.112 of the Commission's regulations without the need for e-Tag 
Authors and Balancing Authorities to include certain markings required 
under section 388.112(b)(1) of the Commission's regulations.\42\ In 
other words, the Commission will deem e-Tags made available to the 
Commission under Order No. 771 as universally being provided subject to 
a request for confidential treatment and e-Tag Authors do not need to 
separately make a request for confidential treatment in each instance 
for this to apply. This does not, however, foreclose the rights of 
persons to make a request for disclosure of this information under the 
Freedom of Information Act and the provisions of 18 CFR 388.108.
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    \42\ Section 388.112(b)(1) of the Commission's regulations, 18 
CFR 388.112(b)(1), requires, among other matters, certain markings 
to be placed on ``documents'' that are filed with the Commission. 
Specifically, section 388.112(b)(1) provides: ``A person requesting 
that a document filed with the Commission be treated as privileged 
or CEII must designate the document as privileged or CEII in making 
an electronic filing or clearly indicate a request for such 
treatment on a paper filing. The header of the first page of the 
cover sheet or transmittal letter and of the pages or portions of 
the document containing material for which privileged treatment is 
claimed should be clearly marked in bold, capital lettering, 
indicating that it contains privileged, confidential and/or Critical 
Energy Infrastructure Information, as appropriate, and market [squ] 
DO NOT RELEASE. [squ]''
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    28. We decline to specify, as requested by Southern, that e-Tag 
information provided to the Commission meets the requirements of 
exemption 4 of FOIA because it is information that would be otherwise 
privileged or confidential. Order No. 771 acknowledged that some of the 
information contained in the e-Tags is likely to be commercially 
sensitive and that disclosure of such data may result in competitive 
harm to market participants and the market as a whole without 
reasonable confidentiality restrictions.\43\ To the extent a person 
files a request to obtain e-Tag data from the Commission under the 
Freedom of Information Act (FOIA), we expect that any commercially-
sensitive e-Tag data would be protected from disclosure if it satisfies 
the requirements of FOIA's exemption 4, which protects trade secrets 
and commercial or financial information that is privileged or 
confidential.\44\ Nonetheless, such requests must be evaluated on a 
case-by-case basis and we cannot peremptorily foreclose such requests, 
as requested by Southern.
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    \43\ Order No. 771, FERC Stats & Regs ] 31,339 at P 58.
    \44\ Id.
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    29. In addition, we find that, consistent with the procedures set 
forth in section 388.112(d) of the Commission's regulations, the 
Commission will not release e-Tag information to third parties in 
response to a FOIA request without first notifying the e-Tag Author and 
any relevant Sink Balancing Authority and giving the e-Tag Author and 
any Sink Balancing Authority an opportunity (at least five calendar 
days) in which to comment in writing on the request. If the e-Tag 
Author objects to the release of e-Tag information, and if the 
Commission or an appropriate Commission official determines that such 
information should be released, notice will be given to the e-Tag 
Author no less than five calendar days before disclosure, pursuant to 
section 388.112(e) of the Commission's regulations.
    30. As to Southern's request that we determine that Balancing 
Authorities will not be held liable for inadvertent disclosure of 
confidential e-Tag information, we will address this request in our 
further rehearing order.
4. Internal E-Tags
a. Comments
    31. EEI/NRECA ask the Commission to clarify that it is not seeking 
e-Tags that are used within a Balancing Authority for internal 
purposes, such as where there is only one ``party'' to an e-Tag.\45\ 
EEI/NRECA state that such e-Tags are often used by companies and 
cooperatives to manage their internal systems within their service 
territories.\46\
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    \45\ EEI/NRECA at 8.
    \46\ Id. at 8.
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b. Commission Determination
    32. As noted above, e-Tags are used to schedule interchange 
transactions in wholesale markets, which are defined as ``[a]n 
agreement to transfer energy from a seller to a buyer that crosses one 
or more Balancing Authority Area boundaries.'' \47\ However, in 
practice, as noted by EEI/NRECA, e-Tags can also be used to schedule 
internal, or Intra-Balancing Authority, transactions. Business practice 
standards related to Intra-Balancing Authority e-Tags are the same as 
the standards that apply to e-Tags that cross Balancing Authority Area 
boundaries.\48\ As such, we find that treating Intra-Balancing 
Authority e-Tags in the same manner as interchange e-Tags would be 
consistent with, and least disruptive of, established industry practice 
and fall within the categories of e-Tags that we required to be made 
available to the Commission in Order No. 771. Therefore, we clarify 
that e-Tag Authors, through their Agent Service, must include the 
Commission on the CC list of entities with view-only rights for all e-
Tags covered by the Final Rule, which include intra-Balancing Authority 
e-Tags of the type described by EEI/NRECA.
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    \47\ See Order No. 771, FERC Stats & Regs ] 31,339 at P 3 n.8 
(citing NERC's Glossary of Terms Used in Reliability Standards 
(updated November 15, 2012), available at http://www.nerc.com/files/Glossary_of_Terms.pdf).
    \48\ In particular, the NAESB Wholesale Electric Quadrant (WEQ) 
Business Practice Standards (Coordinate Interchange) requirement 
004-1.1 provides that ``[t]o the extent that intra BA transactions 
are submitted as a RFI, those transactions will be subject to all 
provisions of this Business Practice Standard WEQ-004.''
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    33. Additionally, requiring that all e-Tags, including Intra-
Balancing Authority e-Tags, include the Commission on the CC list 
simplifies compliance with the requirements of Order No. 771 for e-Tag 
Authors and Sink Balancing Authorities. Specifically, if the Commission 
created an exception whereby a limited number of Intra-Balancing 
Authority e-Tags do not include the Commission on the CC list, then 
Balancing Authorities would need to take additional steps to ensure 
that their validation procedures did not incorrectly reject these e-
Tags. Simply put, by not allowing this exception for Intra-Balancing 
Authority e-Tags, Balancing Authorities with validation 
responsibilities would simply check

[[Page 16138]]

only the CC list of an e-Tag to see if the Commission is included. If 
an Intra-Balancing Authority exception were created, Balancing 
Authorities with validation responsibilities would first need to check 
the market and physical segments of an e-Tag to see if they met 
additional criteria, and then check to see if the Commission is 
included on the CC list. Likewise, e-Tag Authors would have to develop 
additional procedures to ensure an Intra-Balancing Authority exception 
was appropriately implemented.
5. Balancing Authorities
a. Comments
    34. OATI states that Order No. 771 creates certain obligations on 
``Balancing Authorities'' and notes that multiple Balancing Authorities 
can be listed on a single e-Tag. OATI seeks clarification that the 
Final Rule refers to the Balancing Authority serving as the Sink 
Balancing Authority and providing e-Tag Authority Services for the 
particular e-Tag transaction, rather than to other Balancing 
Authorities that may be listed on the e-Tag.\49\
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    \49\ OATI at 6.
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b. Commission Determination
    35. Order No. 771 imposes certain requirements on Balancing 
Authorities located within the United States with respect to ensuring 
Commission access to e-Tags.\50\ In response to OATI's question, we 
clarify that the requirements on Balancing Authorities to ensure 
Commission access to e-Tags relate only to the Sink Balancing Authority 
on an e-Tag and not to other Balancing Authorities that may be included 
on an e-Tag.\51\
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    \50\ See Order No. 771, FERC Stats & Regs ] 31,339 at P 39; 18 
CFR 366.2(d).
    \51\ See, e.g., NAESB Wholesale Electric Quadrant (WEQ) Business 
Practice Standards (Coordinate Interchange) requirement 004-1 (``All 
requests to implement bilateral Interchange * * * between a Source 
BA and Sink BA, where one or both BAs are located in either the 
Eastern or Western Interconnection, shall be accomplished by the 
submission of a completed and accurate RFI) to the Sink BA's 
registered e-Tag Authority Service'') and requirement 004-2 (``Until 
other means are adopted by NAESB, the primary method of submitting 
the RFI shall be an e-Tag communicated to and managed by the Sink 
BA's registered e-Tag authority service using protocols compliant 
with the Version 1.8.1 Electronic Tagging Functional 
Specification.'' (Emphasis added.)). See NAESB Wholesale Electric 
Quadrant (WEQ) Business Practice Standards (Version 003), published 
July 31, 2012.
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    The Commission orders:
    The Commission hereby grants rehearing in part, and denies 
rehearing in part, as discussed in the body of the order.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2013-05856 Filed 3-13-13; 8:45 am]
BILLING CODE 6717-01-P