Professional Documents
Culture Documents
Washington, DC 20426. (202) 502– Market Behavior Rules are currently on appeal.
Acting Area Director, Western En Route and 8133. Frank.Karabetsos@ferc.gov. Cinergy Marketing & Trading, L.P. v. FERC, Nos.
Oceanic Operations. Mark Higgins, Office of Market 04–1168 et al. (DC Cir. April 28, 2004). Unless
otherwise specified, this NOPR will refer to this
[FR Doc. 06–1761 Filed 2–24–06; 8:45 am] Oversight and Investigations, Federal rule on record retention under its new designation,
BILLING CODE 4910–13–M Energy Regulatory Commission, 888 section 35.37(d).
First Street, NE., Washington, DC 4 18 CFR 35.37(d).
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9742 Federal Register / Vol. 71, No. 38 / Monday, February 27, 2006 / Proposed Rules
Policy Act of 2005 (EPAct 2005).5 To authorizations or in transactions the certain records for a period of three
implement this new authority, the prices of which were reported to price years to reconstruct prices charged for
Commission recently issued Order No. index publishers. natural gas and electricity, respectively.
670, where we said we would adhere to 4. In a Notice of Proposed Rulemaking This is different from the record
a five-year statute of limitations where dated November 21, 2005,7 the retention requirements in parts 125 and
we seek civil penalties for violations of Commission proposed to rescind 225 of our regulations, which largely are
the new anti-manipulation rules.6 This §§ 284.288 or 284.403 of the related to cost-of-service rate
NOPR proposes to amend these Commission’s regulations once we requirements.13 Given the importance of
regulations to extend the record issued final regulations implementing records related to any investigation of
retention requirement of §§ 284.288(b), the anti-manipulation provisions of possible wrongdoing and related to
284.403(b) and 35.37(d) of the EPAct 2005 and have had the assuring compliance, and in order to
Commission’s regulations from three to opportunity to incorporate the non- avoid confusion, the Commission
five years, in order to be consistent with duplicative aspects of §§ 284.288 or decided to retain §§ 284.288(b),
the recently issued Order No. 670. 284.403 of the Commission’s regulations 284.403(b) and 35.37(d) of the
into other rules of general applicability. Commission’s regulations.
I. Background At the same time, we issued an order in 7. In this NOPR, we propose
2. On November 17, 2003, we issued Docket No. EL06–16–000 proposing increasing the record retention
Order No. 644, amending blanket similar changes to the behavior rules requirement from three years to five
certificates for unbundled natural gas applicable to wholesale sellers of years. In Order No. 670, we did not
sales services held by interstate natural electricity at market-based rates.8 On adopt a specific statute of limitations on
gas pipelines and blanket marketing January 19, 2006, the Commission complaints or enforcement actions that
certificates held by persons making issued Order No. 670, adopting may be brought pursuant to the
sales for resale of natural gas at regulations implementing the EPAct Commission’s anti-manipulation
negotiated rates in interstate commerce. 2005 anti-manipulation provisions.9 In authority.14 However, we did note that,
This rule requires that pipelines that Order No. 670, the Commission stated when a statutory provision under which
provide unbundled natural gas sales that it will adhere to a five-year statute civil penalties may be imposed lacks its
service and all sellers of natural gas for of limitations where we seek civil own statute of limitations (as is the case
resale adhere to a code of conduct with penalties for violations of the new anti- with respect to the Commission’s anti-
respect to certain natural gas sales. manipulation rules.10 manipulation authority), a five-year
Sections 284.288(b) and 284.403(b) of 5. In a final rule and order issued limitation period applies.15 It would be
the codes of conduct regulations require simultaneously with this NOPR, we inconsistent to allow complaints or
that sellers retain for a minimum three- decided to rescind §§ 284.288(a), (d) and enforcement actions seeking civil
year period all data and information (e) and 284.403(a), (d) and (e) of the penalties for alleged violations to our
upon which they billed the prices Commission’s regulations,11 and to anti-manipulation authority to be
charged for natural gas sales made rescind Market Behavior Rules 2 and commenced more than three years after
under §§ 284.284 or 284.402, or in 6.12 The Commission stated that, the transactions giving rise to such
transactions the prices of which were although Order No. 670 made it actions were carried out, but not to
reported to price index publishers. unnecessary to retain §§ 284.288(a), (d) require that the data and information
3. At the same time that Order No. and (e) and 284.403(a), (d) and (e) of the related to such transactions be retained
644 was adopted for pipelines that Commission’s regulations or to retain for at least that long. Accordingly, we
provide unbundled natural gas sales Market Behavior Rules 2 and 6, there is propose, and seek comment on, an
service and holders of blanket certificate benefit to retaining §§ 284.288(b)–(c) increase of the record retention
authority that make sales for resale of and 284.403(b)–(c) (redesigated as requirement to five years.
natural gas, the Commission also issued §§ 284.288(a)–(b) and 284.403(a)–(b)) of
the Market Behavior Rules Order to the Commission’s regulations, and to III. Regulatory Flexibility Act
require wholesale sellers of electricity at retaining Market Behavior Rules 1, 3, 4, Certification
market-based rates to adhere to certain and 5 (new §§ 35.37(a)–(d) of the 8. The Regulatory Flexibility Act of
behavioral rules when making sales of Commission’s regulations). 1980 16 generally requires a description
electricity. The record retention rule, II. Discussion and analysis of final rules that will have
now § 35.37(d) of the Commission’s a significant economic impact on a
6. Sections 284.288(b), 284.403(b) and
regulations, requires that sellers retain substantial number of small entities.17
35.37(d) of the Commission’s
for a minimum three-year period all regulations require sellers to maintain 13 18 CFR parts 125, 225 (2005).
data and information upon which they
14 Order No. 670, 114 FERC ¶ 61,047 at P 62.
billed the prices charged for electricity 7 Amendments to Codes of Conduct for
15 Id.
and related products in sales made Unbundled Sales Service and for Persons Holding 16 5 U.S.C. 601–612 (2000).
under their market-based rate tariffs and Blanket Marketing Certificates, 113 FERC ¶ 61,189 17 The RFA definition of ‘‘small entity’’ refers to
(2005).
8 See Investigation of Terms and Conditions of the definition provided in the Small Business Act,
5 Energy Policy Act of 2005, Public Law No. 109–
which defines a ‘‘small business concern’’ as a
58, 119 Stat. 594 (2005). Congress prohibited the Public Utility Market-Based Rate Authorizations,
business which is independently owned and
use or employment of ‘‘any manipulative or ‘‘Order Proposing Revisions to Market-Based Rate
operated and which is not dominant in its field of
deceptive device or contrivance’’ in connection Tariffs and Authorizations,’’ 113 FERC ¶ 61,190
operation. 15 U.S.C. 632 (2000). The Small Business
with the purchase or sale of natural gas or electric (2005).
9 18 CFR 1c.1 and 1c.2, 71 FR 4,244 (2006).
Size Standards component of the North American
energy or transportation or transmission services Industry Classification System defines a small
10 Order No. 670, 114 FERC ¶ 61,047 at P 63.
subject to the jurisdiction of the Commission. electric utility as one that, including its affiliates,
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Congress directed the Commission to give these 11 Amendments to Codes of Conduct for
is primarily engaged in the generation,
terms the same meaning as under the Securities Unbundled Sales Service and for Persons Holding transmission, and/or distribution of electric energy
Exchange Act of 1934, 15 U.S.C. 78j(b) (2000). Blanket Marketing Certificates, Docket No. RM06– for sale and whose total electric output for the
6 Prohibition of Energy Market Manipulation, 5–000 (February 16, 2006). preceding fiscal years did not exceed 4 million
Order No. 670, 71 FR 4244 (Jan. 26, 2006), FERC 12 Order Revising Market-Based Rate Tariffs and MWh. 13 CFR 121.201 (Section 22, Utilities, North
Stats. & Regs. ¶ 31,202, 114 FERC ¶ 61,047 (Jan. 19, Authorizations, Docket No. EL06–16–000 (February American Industry Classification System, NAICS)
2006) (Order No. 670). 16, 2006). (2004).
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Federal Register / Vol. 71, No. 38 / Monday, February 27, 2006 / Proposed Rules 9743
The Commission is not required to make violations of the Commission’s new retention purposes remains identified as
such analyses if a rule would not have anti-manipulation rules that could be FERC–549. The Commission identifies
such an effect. The proposed rule related to such data and information. the information provided for under part
merely extends an already existing The increased duration of information 35 as FERC–516. As discussed above,
record retention requirement from three retention contained in this proposed the Commission proposes to extend the
to five years. Therefore, the Commission revised rule has been submitted to the records retention requirements in parts
certifies that this proposed rule, if Office of Management and Budget 35 and 284 of its regulations for an
finalized, will not have a significant (OMB) for review under section 3507(d) additional two years consistent with
economic impact on a substantial of the Paperwork Reduction Act of Order No. 670.
number of small entities. 1995.18 OMB’s regulations require OMB
to approve certain information 11. Comments are solicited on the
IV. Information Collection Statement collection requirements imposed by need for this increased records retention
9. As discussed herein, the agency rule.19 period, whether it will have practical
Commission is proposing to extend the 10. The Commission’s regulations, in utility, the accuracy of the provided
existing record retention period of §§ 284.288(b), 284.403(b) and 35.37(d), burden estimates, and any suggested
§§ 284.288(b), 284.403(b) and 35.37(d) specify the existing record retention methods for minimizing respondents’
of the Commission’s regulations from requirements applicable to certain burden, including the use of automated
three years to five years consistent with sellers of natural gas and electricity. The information techniques. The burden
the statute of limitations that applies to information provided to the estimates for complying with this
actions seeking civil penalties for Commission under part 284 for record proposed rule are as follows:
Records Retention:
FERC–516 ...................................................................................................... 1,150 1 2 2300
FERC–549 ...................................................................................................... 222 1 2 444
Total Annual Hours for Record Necessity of the Information: It would support for this information burden
Retention: Recordkeeping, 2,744 hours. be very difficult (if possible at all) for estimate. Moreover, the Commission has
Information Retention Costs: The the Commission to monitor and reviewed the increased duration of
Commission projects an annualized prosecute violations of pipeline and information retention proposed herein
average cost of all respondents as 2,744 blanket certificate sales of natural gas and has determined that these
hours @ $17 an hour = $46,648 (staffing) and market-based rate sales of electricity retentions of information are necessary
+ $2,538,200 (1,372 entities @ $925 per unless the underlying sales information and conform to the Commission’s plans,
year × 2 (storage)). This cost is based on were retained. This data retention as described in this order, for the use of
120 cubic feet (20 four-drawer file requirement is consistent with the the required information.21
cabinets transferred off site to a storage information and data retention 12. Interested persons may obtain
facility). The costs include cubic feet of requirements applicable to sellers information on the proposed increased
storage plus the cost of floor space plus having cost-based rates.20 Requiring duration of information retention by
the costs for records storage cartons. The pipeline and blanket certificate sellers contacting: Federal Energy Regulatory
Commission is requiring that entities of natural gas, and market-based rate Commission, 888 First Street, NE.,
retain records for an additional two sellers of electricity, to retain records is Washington, DC 20426, Attention:
years. Total costs = $2,584,848. Greater also consistent with the Commissions Michael Miller, Office of the Executive
savings can be accomplished if past practices as set forth in Director, Phone: (202) 502–8415, fax:
documents are stored electronically, i.e., §§ 284.288(b), 284.403(b) and 35.37(d) (202) 273–0873, e-mail:
one file cabinet (four-drawer) (10,000 of the Commission’s regulations, and, michael.miller@ferc.gov. Comments on
pages on average) = 500 MegaBytes although the Commission proposes a the requirements of the proposed rule
(MByte) = one CD–ROM. The retention period of five years (as may also be sent to the Office of
Commission seeks comments on the opposed to the existing three-year Information and Regulatory Affairs,
costs to comply with this requirement. requirement), such longer period is now Office of Management and Budget,
Title: FERC–549, Gas Pipeline Rates: required to ensure the information and Washington, DC 20503, Attention: Desk
Natural Gas Policy Act, Section 311; data will remain available to support Officer for the Federal Energy
FERC–516, Electric Rate Schedule complaints and enforcement actions Regulatory Commission.
Filings. involving civil penalties for violations 13. For submitting comments
Action: Proposed Collection. that occurred more than three years concerning the proposed increased
OMB Control No: 1902–0086 and earlier. duration of information retention and
1902–0096. Internal review: The Commission has the associated burden estimate(s), please
Respondents: Businesses or other for conducted an internal review of the send comments to the contact listed
profit. public reporting burden associated with above and to the Office of Management
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Frequency of Responses: Records of the record retention of information and and Budget, Office of Information and
market-based rate transactions shall be assured itself, by means of internal Regulatory Affairs, Washington, DC
retained for five years instead of three. review, that there is specific, objective 20503, Attention: Desk Officer for the
18 44 U.S.C. 3507(d). 20 See 18 CFR parts 125, 225.
19 5 CFR 1320.11. 21 See 44 U.S.C. 3506(c) (2000).
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9744 Federal Register / Vol. 71, No. 38 / Monday, February 27, 2006 / Proposed Rules
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