Rule2021-18283
Data Collection for Analytics and Surveillance and Market-Based Rate Purposes
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 26, 2021
Effective
October 25, 2021
Issuing agencies
Energy DepartmentFederal Energy Regulatory Commission
Abstract
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.
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<title>Federal Register, Volume 86 Issue 163 (Thursday, August 26, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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, <a href="/cdn-cgi/l/email-protection#47153e26296914332235333d072122352469202831"><span class="__cf_email__" data-cfemail="b1e3c8d0df9fe2c5d4c3c5cbf1d7d4c3d29fd6dec7">[email protected]</span></a>.
Regine Baus (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First St. NE, Washington, DC
20426, (202) 502-8757, <a href="/cdn-cgi/l/email-protection#c99bacaea0a7ace78ba8bcba89afacbbaae7aea6bf"><span class="__cf_email__" data-cfemail="9dcff8faf4f3f8b3dffce8eeddfbf8effeb3faf2eb">[email protected]</span></a>.
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), <a href="https://mbrwebsat.ferc.gov/MbrHelpLinks/DownLoadFiles/Quick%20Start%20Guide">https://mbrwebsat.ferc.gov/MbrHelpLinks/DownLoadFiles/Quick%20Start%20Guide</a>.
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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 <a href="/cdn-cgi/l/email-protection#9edaffeaffddf2fbffecfff0fdfbdef8fbecfdb0f9f1e8"><span class="__cf_email__" data-cfemail="f0b4918491b39c959182919e9395b096958293de979f86">[email protected]</span></a> or telephone
(202) 502-8663).
29. Send written comments on FERC-919A to the Office of Management
and Budget (OMB) through <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>, 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 <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>. 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 <a href="http://www.bls.gov/oes/current/oes_nat.htm">http://www.bls.gov/oes/current/oes_nat.htm</a>,
and BLS benefits data at <a href="http://www.bls.gov/news.release/ecec.nr0.htm">http://www.bls.gov/news.release/ecec.nr0.htm</a> 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) $42.57.
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32. The following table summarizes the average estimated annual
burden and cost \49\ changes due to March Notice (and includes, for
background only, the estimate from Order No. 860):
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\49\ The following table displays BLS cost calculations from
2020 which updated the March Notice's estimates from the initial
2019 data.
--------------------------------------------------------------------------------------------------------------------------------------------------------
A. B. C. D. E. F. G. H.
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Number of
Respondent/incremental burden Number of responses Number of Burden hours per Hourly cost Total annual burden Total cost ($) (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
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impacted Sellers, as implemented 440 1 440 68.................. 88.54 29,920.............. 2,649,116.80.
in this Order.
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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
--------------------------------------------------------------------------------------------------------------------------------------------------------
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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[[Page 47567]]
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, <a href="https://www.census.gov/eos/www/naics/">https://www.census.gov/eos/www/naics/</a>.
\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 (<a href="http://www.ferc.gov">http://www.ferc.gov</a>). 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
<a href="/cdn-cgi/l/email-protection#b8deddcadbd7d6d4d1d6ddcbcdc8c8d7caccf8deddcadb96dfd7ce"><span class="__cf_email__" data-cfemail="33555641505c5d5f5a5d56404643435c414773555641501d545c45">[email protected]</span></a>, or the Public Reference Room at (202) 502-
8371, TTY (202)502-8659. Email the Public Reference Room at
<a href="/cdn-cgi/l/email-protection#aadadfc8c6c3c984d8cfcccfd8cfc4c9cfd8c5c5c7eacccfd8c984cdc5dc"><span class="__cf_email__" data-cfemail="0b7b7e6967626825796e6d6e796e65686e796464664b6d6e7968256c647d">[email protected]</span></a>.
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.
BILLING CODE 6717-01-P
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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
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