[Federal Register Volume 86, Number 163 (Thursday, August 26, 2021)]
[Rules and Regulations]
[Pages 47562-47574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18283]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[Docket No. RM16-17-000]


Data Collection for Analytics and Surveillance and Market-Based 
Rate Purposes

AGENCY: Federal Energy Regulatory Commission.

ACTION: Adopted revisions to information collection.

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SUMMARY: The Federal Energy Regulatory Commission adopts a proposal to 
collect additional data from certain market-based rate sellers with 
ultimate upstream affiliates that have been granted blanket 
authorization to acquire the securities of those sellers or those 
sellers' upstream affiliates. The adopted proposal involves certain 
revisions to the data dictionary and XML schema that accompany the 
relational database established in Order No. 860.

DATES: These revisions will become effective October 25, 2021.

FOR FURTHER INFORMATION CONTACT: 

    Ryan Stertz (Technical Information), Office of Energy Market 
Regulation, Federal Energy Regulatory Commission, 888 First St. NE, 
Washington, DC 20426, (202) 502-6473, [email protected].
    Regine Baus (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First St. NE, Washington, DC 
20426, (202) 502-8757, [email protected].

SUPPLEMENTARY INFORMATION:

Order Adopting Revisions to Information Collection

(Issued August 19, 2021)

    1. On March 18, 2021, the Commission issued a notice requesting 
comments \1\ on a proposal to collect additional data from certain 
market-based rate (MBR) sellers (Sellers) \2\ through revisions to the 
data dictionary and XML schema that accompany the relational database 
established in Order No. 860 (MBR Data Dictionary).\3\ Specifically, 
the Commission proposed revising the MBR Data Dictionary to require 
that Sellers whose ultimate upstream affiliate(s) \4\ own their voting 
securities pursuant to a section 203(a)(2) blanket authorization 
provide, in the relational database, three additional data fields: The 
docket number of the section 203(a)(2) blanket authorization, the 
Utility ID Type CD of the utility whose securities were acquired under 
the corresponding section 203(a)(2) blanket authorization docket 
number, and the Utility ID of that utility.\5\ In this order, we revise 
the MBR Data Dictionary as proposed in the March Notice.
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    \1\ Data Collection for Analytics & Surveillance & Mkt.-Based 
Rate Purposes, 86 FR 17823 (Apr. 6, 2021), 174 FERC ] 61,214 (2021) 
(March Notice).
    \2\ A Seller is defined as any person that has authorization to 
or seeks authorization to engage in sales for resale of electric 
energy, capacity or ancillary services at market-based rates under 
section 205 of the Federal Power Act (FPA). 18 CFR 35.36(a)(1); 16 
U.S.C. 824d.
    \3\ Data Collection for Analytics & Surveillance & Mkt.-Based 
Rate Purposes, Order No. 860, 84 FR 36390 (July 26, 2019), 168 FERC 
] 61,039 (2019), order on reh'g and clarification, Order No. 860-A, 
85 FR 13012 (Oct. 1, 2020), 170 FERC ] 61,129 (2020).
    \4\ ``Ultimate upstream affiliate'' is defined as the furthest 
upstream affiliate(s) in the ownership chain--i.e., each of the 
upstream of affiliate(s) of a Seller, who itself does not have 10% 
or more of its outstanding securities owned, held or controlled, 
with power to vote, by any person (including an individual or 
company). Order No. 860, 168 FERC ] 61,039 at P 5 n.10; see also 18 
CFR 35.36(a)(10). ``Upstream affiliate'' means any entity described 
in Sec.  35.36(a)(9)(i). 18 CFR 35.36(a)(10).
    \5\ The March Notice defined ``utilities'' as transmitting 
utilities, electric utility companies, or holding company systems 
containing such entities. March Notice, 174 FERC ] 61,214 at P 1 
n.4.
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I. Background

A. Order No. 860

    2. On July 18, 2019, the Commission issued Order No. 860, which 
revised certain aspects of the substance and format of information 
Sellers submit to the Commission for market-based rate purposes. Among 
other things, the Commission adopted the approach to collect market-
based rate information in a relational database.\6\ The Commission also 
specified that any significant changes to the MBR Data Dictionary would 
be proposed in a Commission order or rulemaking, which would provide an 
opportunity for comment.\7\
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    \6\ Order No. 860, 168 FERC ] 61,039 at P 4.
    \7\ Id. P 220.
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    3. In support, the Commission explained that the relational 
database construct provides for a more modern and flexible format for 
the reporting and retrieval of information. The

[[Page 47563]]

Commission noted that Sellers would be linked to their market-based 
rate affiliates through common ultimate upstream affiliate(s) and that, 
through this linkage, the relational database would allow for the 
automatic generation of a complete asset appendix.\8\ Therefore, the 
Commission required that, as part of their market-based rate 
applications or baseline submissions, Sellers identify, through the 
relational database, their ultimate upstream affiliate(s). The 
Commission also specified that Sellers must inform the Commission when 
they have a new ultimate upstream affiliate as part of their change in 
status reporting obligations, with any changes updated in the 
relational database on a monthly basis.\9\
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    \8\ Id. PP 5-6. ``Once a Seller identifies its own assets, the 
assets of its affiliates without market-based rate authority, and 
its ultimate upstream affiliate(s), the relational database will 
contain sufficient information to allow the Commission to identify 
all of that Seller's affiliates (i.e., those with a common ultimate 
upstream affiliate) to create a complete asset appendix for the 
Seller, which includes all of its affiliates' assets.'' Id. P 40.
    \9\ Id. P 121.
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B. Petition for Declaratory Order

    4. On March 18, 2021, the Commission denied a petition for 
declaratory order filed by NextEra Energy, Inc., American Electric 
Power Company, Inc., Evergy, Inc., Exelon Corporation, and Xcel Energy 
Services Inc. on behalf of Xcel Energy Inc. (Petitioners).\10\ Among 
other things, Petitioners requested that the Commission find that no 
affiliation arises under FPA section 205 when institutional investors 
acquire up to 20% of the voting securities of utilities pursuant to a 
section 203(a)(2) blanket authorization. Although the Commission 
disagreed with Petitioners regarding the issue of affiliation, it 
provided guidance that addressed, in part, the concerns raised by 
Petitioners. As explained more fully in NextEra, the Commission agreed 
with Petitioners that, as a result of the conditions in a section 
203(a)(2) blanket authorization, institutional investors subject to a 
section 203(a)(2) blanket authorization lack the ability to control the 
utilities whose voting securities they acquire. The Commission 
concluded that, because those conditions prevent institutional 
investors from exercising control over those utilities, utilities 
commonly owned by an institutional investor are not affiliates of each 
other under 18 CFR 35.36(a)(9)(iv),\11\ so long as their common 
institutional investor owner complies with the conditions imposed as 
part of a section 203(a)(2) blanket authorization.\12\
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    \10\ NextEra Energy, Inc., 174 FERC ] 61,213, granting 
clarification, 175 FERC ] 61,214 (2021) (NextEra).
    \11\ Under Sec.  35.36(a)(9)(iv), an affiliate of a specified 
company can mean ``[a]ny person that is under common control with 
the specified company.'' 18 CFR 35.36(a)(9)(iv); see also id. 
35.36(a)(9)(i)-(iii) (providing the other aspects of the 
Commission's affiliate definition as applied in market-based rate 
proceedings).
    \12\ NextEra, 174 FERC ] 61,213 at P 52.
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    5. However, the Commission recognized in NextEra that the 
relational database, as contemplated in Order Nos. 860 and 860-A, does 
not provide for a method to distinguish between ultimate upstream 
affiliates that have or have not acquired securities of Sellers (or 
their upstream affiliates) through a section 203(a)(2) blanket 
authorization.\13\ As a result, in the March Notice, the Commission 
proposed changes to the MBR Data Dictionary so that the relational 
database could accurately reflect the affiliations, or lack thereof, 
among Sellers if an ultimate upstream affiliate has acquired the 
securities of Sellers pursuant to a section 203(a)(2) blanket 
authorization.
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    \13\ Id. P 53.
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II. Discussion

A. March Notice

    6. In the March Notice, the Commission proposed to collect certain 
data in the relational database for purposes of generating accurate 
asset appendices when 10% or more of the securities of a Seller (or an 
upstream affiliate) have been acquired pursuant to a section 203(a)(2) 
blanket authorization. The Commission explained that this new data 
requirement would only be required for Sellers with upstream affiliates 
10% or more of whose securities have been acquired pursuant to a 
section 203(a)(2) blanket authorization and concluded there would be no 
burden on other Sellers.\14\
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    \14\ March Notice, 174 FERC ] 61,214 at P 8.
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    7. Specifically, the Commission proposed to update the MBR Data 
Dictionary and add three new data fields to the entities_to_entities 
table: (1) The section 203(a)(2) blanket authorization docket number; 
(2) the Utility_ID_Type_CD of the utility whose securities were 
acquired under the corresponding section 203(a)(2) blanket 
authorization docket number; and (3) and the Utility_ID of that 
utility. That is, the appropriate Sellers would be required to 
identify, using these new data fields, the upstream affiliate whose 
securities were acquired pursuant to the section 203(a)(2) blanket 
authorization as well as the docket number of the proceeding in which 
the Commission granted the section 203(a)(2) blanket authorization.\15\
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    \15\ Id. P 9.
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    8. The Commission noted that these new data fields would be 
necessary to prevent the connection of unaffiliated entities when auto-
generating asset appendices, consistent with its findings in NextEra. 
The Commission also stated that it anticipated that the MBR Data 
Dictionary with appropriate validations would be posted on the 
Commission's website upon issuance of a final order in this 
proceeding.\16\
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    \16\ Id. PP 10-11.
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B. Comments

    9. Comments were filed by the Transmission Access Policy Study 
Group (TAPS), the Global Legal Entity Identifier Foundation (GLEIF), 
XBRL US (XBRL), and Edison Electric Institute (EEI) and Electric Power 
Supply Association (EPSA), jointly.
    10. TAPS, GLEIF, and XBRL each support the Commission's proposal to 
collect additional data from certain Sellers through the inclusion of 
the three proposed data fields in the relational database.
    11. TAPS supports the revisions proposed in the March Notice and 
urges the Commission to adopt them.\17\ TAPS agrees that the proposed 
revisions are necessary for the relational database to properly 
identify the affiliates of all Sellers with market-based rate 
authority, while also maintaining necessary transparency into Sellers' 
ultimate upstream ownership structures.\18\ In particular, TAPS argues 
that it is important that the March Notice maintains the requirement 
established in Order Nos. 860 and 860-A, and confirmed in NextEra,\19\ 
that Sellers report their ultimate upstream affiliates, even when the 
ultimate upstream affiliates are institutional investors with section 
203(a) blanket authorizations.\20\ TAPS argues that transparent access 
to this information is essential to the Commission's ability to monitor 
market power and fulfill its statutory obligation to ensure just and 
reasonable rates.\21\
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    \17\ TAPS Comments at 2, 8.
    \18\ Id. at 2.
    \19\ 174 FERC ] 61,213.
    \20\ TAPS Comments at 5-6.
    \21\ Id. at 6-7.

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[[Page 47564]]

    12. GLEIF and XBRL support adding the proposed new data fields to 
the relational database and also support usage of the Legal Entity 
Identifier (LEI) in the Utility_ID_Type_CD attribute (proposed field 11 
in the entities_to_entities table).\22\ However, both GLEIF and XBRL 
suggest that the Commission incorporate the LEI more broadly by 
requiring the reporting of an LEI in all cases.\23\ GLEIF argues that 
partial inclusion of the LEI results in partial coverage, which limits 
the potential benefits of using the LEI.\24\ GLEIF further argues that 
consistent use of the LEI among U.S. federal agencies could greatly 
enhance information sharing across different government entities.\25\ 
XBRL urges all U.S. regulators to adopt the LEI as a replacement for 
the industry-specific identifiers used today and adds that LEIs provide 
clarity regarding organizational provenance, and help businesses 
understand the origins of clients, contractors, and suppliers.\26\
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    \22\ See GLEIF Comments at 1; XBRL Comments at 1.
    \23\ Id.
    \24\ GLEIF Comments at 2.
    \25\ Id.
    \26\ XBRL Comments at 2.
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    13. EEI and EPSA believe there is little to no value in reporting 
ultimate upstream affiliates that are institutional investors to the 
relational database and express concern that adopting the proposed 
changes will result in another delay in implementation. As a result, 
EEI and EPSA urge the Commission not to move forward with the proposed 
changes.\27\ If the Commission moves forward with its proposal to 
collect information about institutional investor ultimate upstream 
affiliates in the relational database, EEI and EPSA suggest several 
modifications and clarifications, which they believe are needed to make 
the proposed changes less cumbersome, more understandable, and easier 
to implement.\28\
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    \27\ EEI and EPSA Comments at 10.
    \28\ Id. at 3.
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    14. First, EEI and EPSA explain that use of the term ``utility'' in 
the proposed new data fields Utility_ID_Type_CD and Utility_ID to 
identify the entity whose securities were acquired by a Seller's 
ultimate upstream affiliate(s) pursuant to a section 203(a)(2) blanket 
authorization may confuse the industry because, in most cases, such an 
entity is not a public utility, as defined by the FPA, but is instead a 
public utility holding company.\29\
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    \29\ Id. at 4.
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    15. Second, EEI and EPSA express concern about the workability of 
the Commission's proposal regarding the technical implementation and 
seek clarification on which attribute(s) will be used to generate a 
Seller's asset appendix.\30\ Specifically, in the case that only the 
Utility_ID attribute will be used to link affiliated Sellers for 
purposes of generating the asset appendix, EEI and EPSA express concern 
that the nullable Utility_ID attribute will be blank for thousands of 
Sellers (because they do not have ultimate upstream affiliate(s) that 
acquired the securities of the Seller through a section 203(a)(2) 
blanket authorization). On the other hand, in the case that both the 
Utility_ID attribute and the Reportable_Entity_ID attribute will be 
used to link affiliated Sellers for purposes of generating the asset 
appendix, EEI and EPSA argue that this would be far more complex than 
always using one attribute (i.e. the Reportable_Entity_ID). EEI and 
EPSA argue that an additional benefit of always using the 
Reportable_Entity_ID attribute to link affiliated Sellers is that the 
Reportable_Entity_ID is likely to remain fixed for many years for most 
Sellers, whereas the existence of an institutional investor ultimate 
upstream affiliate may vary from quarter to quarter.\31\ EEI and EPSA 
suggest that, should the Commission decide to move forward with its 
proposal, the concept of Reportable Entity should always be the entity 
that is used to compile the asset appendix and suggest that the 
Commission rename this field to be 
Asset_Appendix_Reportable_Entity.\32\
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    \30\ Id. at 5.
    \31\ Id. at 5-6.
    \32\ Id. at 8-9.
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    16. Third, EEI and EPSA seek clarification on whether the data 
fields relationship_start_date and relationship_end_date now refer to 
the relationship between a Seller and the Reportable Entity or to the 
relationship between a Seller and the utility, in the event that both 
fields are populated. EEI and EPSA suggest that two additional fields 
be added so that the relational database captures the start and end 
date of both relationships, when applicable.\33\
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    \33\ Id. at 6, 9.
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    17. Finally, EEI and EPSA express concern that the Commission has 
not allowed adequate time for its proposed changes to be incorporated 
into software that Sellers may be relying on to create the XMLs for 
their database submissions, and request that any order in this docket 
include a step-by-step example to ensure that Sellers' software 
developers understand the correct approach to updating records.\34\
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    \34\ Id. at 8.
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C. Commission Determination

    18. We adopt the revisions to the MBR Data Dictionary, as proposed 
in the March Notice. In doing so, we provide additional clarification 
to address concerns raised by commenters. We note that all commenters 
agree that it is important to distinguish upstream affiliates that have 
control over Sellers, ultimate upstream affiliates that have received 
section 203(a)(2) blanket authorizations, and the upstream affiliates 
or Sellers whose securities were acquired pursuant to that blanket 
authorization. We find that the revisions, with the clarifications 
discussed below, strike the appropriate balance between ensuring the 
accuracy of auto-generated asset appendices and minimizing the burden 
on Sellers. Below, we respond to commenters' specific suggestions and 
concerns.
    19. We decline to adopt the proposal that the Commission 
incorporate LEI more broadly by requiring the reporting of an entity's 
LEI broadly across the Commission's work. We appreciate XBRL's and 
GLEIF's emphasis on consistency and transparency throughout the 
Commission's information collection efforts. However, we find that such 
a proposal is beyond the scope of this proceeding, which more narrowly 
addresses the accurate identification and reporting of ultimate 
upstream affiliates in the relational database.
    20. As to the argument that there is little to no value in 
reporting ultimate upstream affiliates where those entities have 
acquired the securities of the reporting Seller, or its upstream 
affiliate, pursuant to a section 203(a)(2) blanket authorization order, 
we note that the Commission has repeatedly emphasized the importance of 
both identifying and tracking these ultimate upstream affiliates in the 
relational database.\35\ We believe that continuing to require Sellers 
to report all of their ultimate upstream affiliates and the information 
discussed herein will preserve the accuracy and integrity of the 
relational database, as contemplated in Order Nos. 860 and 860-A. These 
additional data fields will account for instances where certain 
ultimate upstream affiliates lack control over those Sellers, or their 
upstream affiliates, whose securities are acquired pursuant to a 
section 203(a)(2) blanket authorization.\36\ Thus, these

[[Page 47565]]

data fields will ensure that the relational database does not 
automatically make these Sellers affiliates of each other under Sec.  
35.36(a)(9)(iv),\37\ consistent with NextEra.\38\
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    \35\ See, e.g., NextEra, 174 FERC ] 61,213 at P 56; Order No. 
860-A, 170 FERC ] 61,129 at P 11.
    \36\ Notably, there is no dispute that entities that own greater 
than 10% of the voting securities of a market-based rate seller 
pursuant to a section 203(a)(2) blanket authorization are affiliated 
with that seller.
    \37\ 18 CFR 35.36(a)(9)(iv).
    \38\ NextEra, 174 FERC ] 61,213 at P 52.
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    21. Furthermore, this order does not make any new determinations 
regarding affiliation; rather, it implements the technical components 
necessary to ensure the relational database functions as contemplated 
in NextEra and Order Nos. 860 and 860-A.\39\ Requests for the 
Commission to not move forward with these proposals are collateral 
attacks on those orders.\40\ As such, we decline to reconsider the 
Commission's determination to require Sellers to report certain 
ultimate upstream affiliates.
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    \39\ Id. P 56; Order No. 860-A, 170 FERC ] 61,129 at P 11; Order 
No. 860, 168 FERC ] 61,039 at PP 121, 126-127, 129.
    \40\ We note that Commissioner Danly's dissent also raises 
concerns regarding the value of reporting ultimate upstream 
affiliates where those entities have received section 203(a)(2) 
blanket authorization.
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    22. In addition, we decline to adopt a number of the suggestions 
proposed by EEI and EPSA, as well as their proposed edits to MBR Data 
Dictionary. EEI and EPSA argue that a single field, 
Asset_Appendix_Reportable_Entity, should link affiliated Sellers for 
purposes of generating the asset appendix to simplify submittals in the 
relational database. However, we find that EEI and EPSA misunderstand 
the purpose of the Reportable_Entity_ID field in this respect. The 
Reportable_Entity_ID field is intended for Sellers to report their 
ultimate upstream affiliates.\41\ We believe that shifting this 
reporting obligation to a different field would, in certain 
circumstances, change the information submitted and obfuscate a 
Seller's ultimate upstream affiliate. The three additional data fields 
we are adopting in this order minimize the burden on all Sellers 
because these fields apply to only Sellers whose securities have been 
acquired (or whose upstream affiliate's securities have been acquired) 
by an ultimate upstream affiliate pursuant to a section 203(a)(2) 
blanket authorization. As EEI and EPSA note, thousands of Sellers will 
not have to change how they submit information into the relational 
database with the Commission's changes adopted herein. Because the 
Reportable_Entity_ID field is where all Sellers must report their 
ultimate upstream affiliates, we find that it is less burdensome to 
keep the field limited to reporting only ultimate upstream affiliates 
under Sec.  35.36(a)(10).
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    \41\ 18 CFR 35.36(a)(10).
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    23. As to the use of the term ``utility'' in the data fields, we 
note that the Commission has defined ``utility'' to mean transmitting 
utilities, electric utility companies, or holding company systems 
containing such entities, as those terms have been used in section 
203(a)(2) blanket authorization orders.\42\ We find that continuing to 
use ``utility'' in this manner is consistent with how that term has 
also been used in section 203(a)(2) blanket authorization orders.\43\
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    \42\ See supra note 5.
    \43\ We note that, in many section 203(a)(2) blanket 
authorization orders, the Commission has used the term ``U.S. Traded 
Utility'' to mean transmitting utilities, electric utility 
companies, or holding company systems containing such entities being 
acquired pursuant to section 203(a)(2) blanket authorization orders. 
``Utility,'' as used here, has the same meaning as ``U.S. Traded 
Utility'' used in section 203(a)(2) blanket authorization orders.
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    24. In addition, we appreciate EEI's and EPSA's concerns that the 
relational database is a complex system and that potential confusion 
may exist about how the adopted fields will be used when auto-
generating asset appendices. Based on these concerns, we agree that 
certain clarifications to the MBR Data Dictionary will help to 
alleviate confusion regarding the relational database. Specifically, we 
have updated the descriptions of the Reportable_Entity_ID, 
Blanket_Auth_Docket_Number, Utility_ID_Type_CD, and Utility_ID fields 
to clarify how the system constructs relationships for the auto-
generated asset appendices.\44\ We have also added clarifying 
descriptions for the relationship_start_date and relationship_end_date 
fields.
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    \44\ See appendix A.
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    25. Finally, we also appreciate EEI's and EPSA's concerns that the 
software that Sellers rely on for their XML submissions will need to be 
updated to incorporate these revisions. For a step-by-step example of 
how to comply with these revisions, we direct Sellers to the MBR Quick 
Start Guide, which can be found on the Commission's website.\45\
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    \45\ Federal Energy Regulatory Commission, Market-Based Rate 
Quick Start Guide (August 2021), https://mbrwebsat.ferc.gov/MbrHelpLinks/DownLoadFiles/Quick%20Start%20Guide.
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III. Information Collection Statement

    26. The information collection requirements contained in this order 
are subject to review by the Office of Management and Budget (OMB) 
under section 3507(d) of the Paperwork Reduction Act of 1995.\46\ OMB's 
regulations require approval of certain information collection 
requirements imposed by agency rules (including reporting, record 
keeping, and public disclosure requirements).\47\ Upon approval of a 
collection of information, OMB will assign an OMB control number and 
expiration date. Respondents subject to the filing requirements of this 
rule will not be penalized for failing to respond to the collection of 
information unless the collection of information displays a valid OMB 
control number. The following discussion describes and analyzes the 
collection of information to be revised by this order.
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    \46\ 44 U.S.C. 3507(d).
    \47\ 5 CFR 1320.
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    27. All burden estimates for the proposed information collection 
are discussed in this order. These provisions would affect the 
following information: FERC-919A, Refinements to Policies and 
Procedures for Market Based Rates for Wholesale Sales of Electric 
Energy, Capacity and Ancillary Services by Public Utilities (OMB 
Control No. 1902-0317).
    28. Interested persons may obtain information on the reporting 
requirements by contacting Ellen Brown, Office of the Executive 
Director, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426 (via email [email protected] or telephone 
(202) 502-8663).
    29. Send written comments on FERC-919A to the Office of Management 
and Budget (OMB) through www.reginfo.gov/public/do/PRAMain, Attention: 
Federal Energy Regulatory Commission Desk Officer. Please identify the 
OMB control number (1902-0317) in the subject line. Your comments 
should be sent within 30 days of publication of this notice in the 
Federal Register. OMB submissions must be formatted and filed in 
accordance with submission guidelines at www.reginfo.gov/public/do/PRAMain. Using the search function under the ``Currently Under Review 
field,'' select Federal Energy Regulatory Commission; click ``submit'' 
and select ``comment'' to the right of the subject collection.
    30. These revisions affect Sellers that have ultimate upstream 
affiliates that own their voting securities pursuant to section 
203(a)(2) blanket authorizations. Sellers continue to be required to 
report institutional investors who own 10% or more of their voting 
shares pursuant to section 203(a)(2) blanket authorizations as their 
reportable ultimate upstream affiliate in the relational database. 
However, these revisions also require these Sellers to identify their 
upstream affiliate(s) whose securities have been acquired, 10% or more, 
pursuant to a section 203(a)(2) blanket authorization. This requirement 
includes submitting,

[[Page 47566]]

into the relational database, the docket number of the order granting 
the ultimate upstream affiliate a section 203(a)(2) blanket 
authorization, the identifier of the upstream affiliate(s) whose 
securities were acquired pursuant to the section 203(a)(2) blanket 
authorization, and the type of identifier reported. These revisions 
would not impose any additional reporting requirements for Sellers 
whose ultimate upstream affiliates do not hold their voting securities 
pursuant to section 203(a)(2) blanket authorizations.
    31. There are approximately 2,647 Sellers that will submit 
information into the relational database. Six institutional investors 
currently have section 203(a)(2) blanket authorizations, which 
collectively own approximately 110 upstream affiliates that themselves 
own Sellers. In the March Notice, the Commission estimated an average 
of four Sellers affected for every upstream affiliate, equaling 440 
total sellers. This order reaffirms the estimate of the number of 
Sellers impacted by the revisions herein.
    Burden Estimate: The estimated burden and cost \48\ for the 
requirements in this order are as follows. Information on estimated 
burden from Order No. 860 is displayed for background only.
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    \48\ The estimated hourly cost burden for respondents--$88.54--
is the average of mean hourly wages from May 2020 Bureau of Labor 
Statistics (BLS) data at http://www.bls.gov/oes/current/oes_nat.htm, 
and BLS benefits data at http://www.bls.gov/news.release/ecec.nr0.htm for the following occupations: Legal Occupations (23-
0000) $142.25, Computer and Information Systems Managers (11-3021) 
$103.61, Computer and Mathematical Occupations (15-0000) $65.73, and 
Information and Record Clerks (43-4199) $42.57.
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    32. The following table summarizes the average estimated annual 
burden and cost \49\ changes due to March Notice (and includes, for 
background only, the estimate from Order No. 860):
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    \49\ The following table displays BLS cost calculations from 
2020 which updated the March Notice's estimates from the initial 
2019 data.

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                A.                      B.            C.           D.               E.                F.               G.                    H.
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                                                  Number of
  Respondent/incremental burden      Number of    responses    Number of     Burden hours per    Hourly cost   Total annual burden   Total cost ($) (F *
             category               respondents      per       responses         response          ($) per        hours (D * E)              G)
                                                  respondent    (B * C)                            response
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 First Year, proposed incremental cost associated with the collection of reporting connections to an entity whose securities were acquired pursuant to a
                                                blanket authorization (Increase due to the March Notice)
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Impacted Sellers, as implemented            440            1          440  \50\ 2..............        88.54  880.................  77,915.20.
 in this Order.
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    Ongoing (beginning in Year 2) collection of reporting connections to an entity whose securities were acquired pursuant to a blanket authorization
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Impacted Sellers, as implemented            440            1          440  68..................        88.54  29,920..............  2,649,116.80.
 in this Order.
                                  ----------------------------------------------------------------------------------------------------------------------
    Total Burden for Impacted               440            1          440  70..................        88.54  30,800..............  2,727,032.00.
     Sellers in this Order.
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              Impacted Sellers have an offsetting decrease in reporting requirements compared to those required to be reported in Order 860
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Reduction in Burden of Order 860            440            1         -440  70 [former estimate,        88.54  -30,800 [former       -2,727,032.00
 Reporting Requirements for                                                 being replaced].                   estimate, being       [former estimate,
 Impacted Sellers \51\.                                                                                        replaced].            being replaced].
                              Therefore, there is no net change for impacted Sellers in burden due to these revisions.\52\
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    \50\ The two hours represents the additional time required to 
address the three new fields.
    \51\ Order No. 860, 168 FERC ] 61,039 at P 323.
    \52\ We estimate that the additional burden (440 hours) due to 
these revisions of reporting this information will not have a net 
change in overall burden because sellers will no longer be 
affiliated through common ultimate upstream affiliates with blanket 
authorizations, as contemplated in Order Nos. 860 and 860-A. We 
conservatively estimate that the net change on the impacted sellers 
reporting this information will be zero. The net additional cost 
calculations were determined by subtracting the total burden for 
impacted sellers for these revisions from the estimated burden in 
Order No. 860 which results in no change in burden.
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IV. Environmental Analysis

    33. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\53\ The 
Commission has categorically excluded certain actions from these 
requirements as not having a significant effect on the human 
environment.\54\ The actions proposed here fall within a categorical 
exclusion in the Commission's regulations, i.e., they involve 
information gathering, analysis, and dissemination.\55\ Therefore, 
environmental analysis is unnecessary and has not been performed.
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    \53\ Reguls. Implementing the Nat'l Envt'l Pol'y Act, Order No. 
486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ] 30,783 
(1987) (cross-referenced at 41 FERC ] 61,284).
    \54\ Id.
    \55\ 18 CFR 380.4.
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V. Regulatory Flexibility Act

    34. The Regulatory Flexibility Act of 1980 (RFA) \56\ generally 
requires a description and analysis of rules that will have significant 
economic impact on a substantial number of small entities. The RFA 
mandates consideration of regulatory alternatives that accomplish the 
stated objectives of a proposed rule and minimize any significant 
economic impact on a substantial number of small entities. In lieu of 
preparing a regulatory flexibility analysis, an agency may certify that 
a proposed rule will not have a significant economic impact on a 
substantial number of small entities.
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    \56\ 5 U.S.C. 601-612.
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    35. The Small Business Administration's (SBA) Office of Size 
Standards develops the numerical definition of a small business.\57\ 
The SBA size standard for electric utilities is based on the number of 
employees, including affiliates.\58\ Under SBA's
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    \57\ 13 CFR 121.101.
    \58\ Id.

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current size standards, an electric utility (one that falls under NAICS 
codes 221122 [electric power distribution, with a small business 
threshold of 1,000 employees], 221121 [electric bulk power transmission 
and control, with a small business threshold of 500 employees], or 
221118 [other electric power generation, with a small business 
threshold of 250 employees]) \59\ are small if it, including its 
affiliates, employs 1,000 or fewer people.\60\
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    \59\ The North American Industry Classification System (NAICS) 
is an industry classification system that Federal statistical 
agencies use to categorize businesses for the purpose of collecting, 
analyzing, and publishing statistical data related to the U.S. 
economy. United States Census Bureau, North American Industry 
Classification System, https://www.census.gov/eos/www/naics/.
    \60\ 13 CFR 121.201 (Sector 22--Utilities). To be conservative, 
we are using a small business threshold of 1,000 employees.
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    36. Of the 440 affected entities discussed above, we estimate that 
none of these will be small entities. Accordingly, we certify that this 
order will not have a significant economic impact on a substantial 
number of small entities.

VI. Document Availability

    37. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room due to the President's March 13, 2020 
proclamation declaring a National Emergency concerning the Novel 
Coronavirus Disease (COVID-19).
    38. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    39. User assistance is available for eLibrary and the Commission's 
website during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202)502-8659. Email the Public Reference Room at 
[email protected].

VII. Effective Date and Congressional Notification

    40. These revisions are effective October 25, 2021. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs of OMB, that this order is not a 
``major rule'' as defined in section 351 of the Small Business 
Regulatory Enforcement Fairness Act of 1996.

    By the Commission. Commissioner Chatterjee is not participating.

    Commissioner Danly is dissenting with a separate statement 
attached.

    Issued: August 19, 2021
Kimberly D. Bose,
Secretary.
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BILLING CODE 6717-01-C

United States of America

Federal Energy Regulatory Commission

Data Collection for Analytics and Surveillance and Market-Based Rate 
Purposes
Docket No. RM16-17-000
(August 19, 2021)
DANLY, Commissioner, dissenting:

    1. I dissent from today's order adopting the proposal to collect 
additional information for the relational database.\1\ With this 
issuance, the Commission now requires further submissions from market-
based rate sellers with upstream affiliates holding blanket 
authorizations under Federal Power Act (FPA) section 203(a)(2).\2\ This 
additional administrative burden which we now foist upon these entities 
is unnecessary (and therefore unjustifiable) because the information we 
will glean simply cannot aid us as the majority supposes.
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    \1\ Data Collection for Analytics & Surveillance & Mkt.-Based 
Rate Purposes, 176 FERC ] 61,109 (2021) (August 2021 Order); see 
also Data Collection for Analytics & Surveillance & Mkt.-Based Rate 
Purposes, 174 FERC ] 61,214 (2021); Data Collection for Analytics & 
Surveillance & Mkt.-Based Rate Purposes, Order No. 860, 168 FERC ] 
61,039 (2019), order on reh'g and clarification, Order No. 860-A, 
170 FERC ] 61,129 (2020).
    \2\ August 2021 Order, 176 FERC ] 61,109 at P 18; see also 16 
U.S.C. 824b(a)(2).
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    2. Earlier this year, in a separate proceeding, Commissioner 
Chatterjee and I concurred in an order denying a petition for 
declaratory order filed by NextEra Energy, Inc. and a number of other 
utilities. In that order, the Commission seized upon the opportunity to 
reiterate public utilities' reporting obligations regarding the 
informational database.\3\ Although we concurred in the result of that 
order, we objected to inclusion of institutional investors in the 
relational database as a pointless regulatory burden with little to no 
value.\4\ Many of the objections we offered in that concurrence are 
equally applicable to this order. I recite those objections in large 
measure here.
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    \3\ NextEra Energy, Inc., 174 FERC ] 61,213, at P 54 (2021) 
(NextEra) (Danly, Comm'r and Chatterjee, Comm'r, concurring), order 
addressing arguments raised on reh'g and granting clarification, 175 
FERC ] 61,214 (2021).
    \4\ NextEra, 174 FERC ] 61,213 (Danly, Comm'r and Chatterjee, 
Comm'r, concurring at PP 3-6).
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    3. As today's order recognizes, in NextEra, the Commission found 
that as a result of the conditions in a section 203(a)(2) blanket 
authorization, institutional investors subject to a section 203(a)(2) 
blanket authorization lack the ability to control the utilities whose 
voting securities they acquire. The Commission concluded that, because 
those conditions prevent institutional investors from exercising 
control over those utilities, utilities commonly owned by an 
institutional investor are not affiliates of each other under 18 CFR 
35.36(a)(9)(iv), so long as their common institutional investor owner 
complies with the conditions imposed as part of a section 203(a)(2) 
blanket authorization.\5\
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    \5\ August 2021 Order, 176 FERC ] 61,109 at P 4 (citations 
omitted).
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    The Commission thus acknowledged that, in conditioning those 
blanket authorizations, institutional investors were prevented from 
exercising control over utilities by acquiring their securities.
    4. That determination remains true. Under our current regime, there 
is little to no value in listing institutional investors as the 
ultimate upstream affiliate of market-based rate sellers in the 
relational database. The Commission grants blanket authorizations 
premised on the finding that the institutional investors can exercise 
no control over the utilities whose securities they have purchased and 
that the acquisition would not adversely affect competition.\6\ The 
conclusion that the institutional investors cannot exercise control or 
influence sellers so as to affect market power is confirmed by our 
holding that sellers under common control of an institutional investor 
are not affiliates. Indeed, it could not be otherwise.
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    \6\ See, e.g., Legg Mason, Inc., 121 FERC ] 61,061, at P 26 
(2007).
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    5. Given those predicate determinations, I cannot understand why 
the Commission believes it important to include institutional investors 
in a database that is designed to enable the Commission to monitor the 
opportunity for market-based rate sellers to exercise market power. For 
the same reason, I do not understand why the Commission should require 
change in status filings to be made whenever an institutional 
investor's ownership of the seller's voting securities crosses the 10% 
threshold. To the extent that a particular institutional investor's 
ownership of voting securities ever becomes relevant to the Commission 
because it may have violated the conditions of its authorization, that 
information is easily ascertainable from the quarterly informational 
filings we require as a condition of granting the blanket 
authorizations.\7\
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    \7\ See, e.g., id. P 30.
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    6. There is a simple solution that would allow the Commission to 
eliminate the requirement to include institutional investors in the 
relational database and in change of status filings without waiving the 
applicability of section 35.36(a)(9)(i) of our regulations. Section 
35.36(b) provides: ``The provisions of this subpart apply to all 
Sellers authorized, or seeking authorization, to make sales for resale 
of electric energy, capacity or ancillary services at market-based 
rates unless otherwise ordered by the Commission.'' \8\ Here the 
Commission could have--and in my opinion should have--used this 
authority to order that sellers are not obligated to report 
institutional investors in the relational database or to make change in 
status filings when institutional investor holdings cross the 10% 
voting security threshold. The Commission would also need to make a 
minor amendment to its relational database regulations to provide that 
when an institutional investor is the ultimate upstream affiliate, 
sellers should instead list the next highest upstream affiliate in the 
database. For example, subsidiaries of NextEra should list NextEra as 
the ultimate upstream affiliate in the database if any institutional 
investor owns 10% or more of NextEra pursuant to a blanket 
authorization.
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    \8\ 18 CFR 35.36(b) (emphasis added).
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    7. I appreciate that the Commission has acted to reduce the burden 
on sellers resulting from the requirement to include institutional 
investors in the relational database and in change-in-status filings. 
But a pointless regulatory burden is a pointless regulatory burden, no 
matter how small.

    For these reasons, I respectfully dissent.
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James P. Danly,

Commissioner.

[FR Doc. 2021-18283 Filed 8-25-21; 8:45 am]
BILLING CODE 6717-01-P