By Rich Heidorn Jr.
WASHINGTON — Electric industry officials told FERC last week that its proposal for identifying connections between companies and individuals engaged in trading in RTO markets is too broadly written and will create significant reporting burdens.
The commission’s Notice of Proposed Rulemaking (RM15-23) would require RTOs and ISOs to register market participants through common alpha-numeric identifiers, with lists of their “connected entities” and a description of their relationships. FERC said the change would help it unravel complicated market manipulation schemes. (See Are You Two Related? FERC Wants to Know.)
Speakers at a technical conference last Tuesday called on FERC to narrow its definition of a trader and to increase the 10% ownership threshold for determining whether entities are connected.
“The proposal in its current state is vague, would create burdensome and duplicative filing requirements, and would add material operational and compliance risks for markets participants and others without providing meaningful tangible benefits,” said Matthew J. Picardi, vice president of Shell Energy North America, speaking on behalf of the Electric Power Supply Association.
David Louw, director of the Macquarie Group’s risk management unit, said the rule could reduce participation in the markets, particularly for those “who are price takers and all those for whom the sale of electricity at wholesale is not part of their core business.”
Brandon Johnson, an attorney for Berkshire Hathaway Energy’s NV Energy representing the Edison Electric Institute, added: “We don’t think that FERC has adequately justified and explained the need for this rule.”
The proposal would use Legal Entity Identifiers (LEIs), which are already used by the Commodity Futures Trading Commission and Securities and Exchange Commission to track swaps trades. FERC said the new requirements will help the Office of Enforcement police market manipulation by providing a “more complete view of the relationships between market participants and the incentives underlying their trading activities.” The initiative would also help RTO market monitors in probes of cross-market manipulation, FERC said.
‘Control’ Definition Risks False Positives
Picardi complained that the NOPR overreaches by presuming a company has control even under passive ownership or debt financing arrangements and provides no means for participants to rebut the presumption.
“The final rule should recognize the Chinese walls that exist between marketing and trading firms and their transmission company affiliates pursuant to commission rules and the codes of conduct in order to exclude these independently managed entities from the definition of connected entity,” he said. “The connections that are more remote and will pose an unnecessary burden for no benefit include fuel supply and asset management agreements or bidding and scheduling coordination service agreements that do not afford the supplier an opportunity to control the bidding or operation of its generator customer.”
Picardi cited as an example three market participants that each own one-third of a generator. The operating company, responsible for bidding and scheduling the asset into the markets, should be considered a connected entity, he said. “The other passive owners do not have any control over the operation of the plant, so they could not engage in behaviors for the benefit of other positions or entities they hold,” Picardi said.
FERC Response
In a response to some of the most frequent questions on the NOPR, FERC said it proposed the 10% threshold as a way to determine scienter, or knowledge of wrongdoing — a necessary element to proving market manipulation.
“It is not necessary to have a controlling interest in an entity to have a motive to favor that entity. A significant financial interest could provide such a reason, even if it did not confer control,” the commission said. “Ten percent is a customary cutoff for this purpose and is used in many affiliate definitions.”
FERC said passive investors were included because it is concerned with benefit to an entity, as well as control over it. “However, we are sensitive to concerns about the burden this might impose, and welcome comments with specific examples to help us assess whether the burden might outweigh the benefits,” it said.
Fuel arrangements, tool sharing arrangements, physical maintenance arrangements and standard power purchase agreements would not be included, it said.
No Safe Harbor
PJM Market Monitor Joe Bowring said that whatever threshold FERC chooses should not be a safe harbor protection against enforcement actions. He cited the example of a company marketing power for multiple generators in which it has no equity.
“We’re actually concerned — not that the 10% threshold is too low — but it’s too high,” Bowring said. “Exact thresholds, I would agree, are difficult to calculate. Exact thresholds are subject to gaming. A company could limit its ownership, if they wanted to game, to 9.9%. There’s no magic about 10% or 11 or 8.”
Bowring also said FERC should give market monitoring units authority to audit connected entity filings to determine their accuracy, as it has proposed for RTOs and ISOs. “We live and breathe with this data. We know it pretty well and I think we could be helpful to you if we had that authority,” he said.
Reporting Logistics
Picardi and Duke Energy’s Matthew Jones said the filings should be with FERC or a single designee rather than to individual RTOs and ISOs.
“Based on our experience with minimum participation requirements pursuant to FERC Order 741, RTOs/ISOs will not be able to standardize the information collection process enough across markets for there to be any benefits for entities that transact in multiple markets,” Picardi said. “The basic requirements were set out by the commission in Order 741, but each RTO/ISO has implemented the order differently, and periodically each makes changes to their respective requirements that must be reviewed and confirmed each year.”
Trader Definition
Jones, managing director of analytics for fuels and system optimization for Duke, also challenged the proposed definition of a trader.
Duke “views traders as employees who make short-term trades of power. … Duke Energy does not consider individuals who enter offer curves into the RTO/ISO as engaging in trading activities nor considers individuals negotiating long-term power purchase agreements as ‘traders,’” he said.
In its response, FERC said a trader “is the person who makes the decisions, or devises the strategies, for buying and selling physical or financial products [that] are or may be traded in the organized electric markets. It would not include a person who simply ‘pushes the button’ to make a trade, if that person has no control over or input into the decision-making process.”
Jones also said the 15-day deadline for reporting new agreements and changes to existing ones is too short. “It would be a much easier task to align the contract reporting with the [electronic quarterly report]. The same internal processes for managing compliance for EQR reporting could be used for the RTO/ISO reporting.”
Committed Capacity
Duke suggested the rules apply only to market participants that have committed capacity into an RTO or ISO. “Market participants of an RTO/ISO who have generation assets that are committed outside of an RTO/ISO rarely sell specific capacity to the RTO/ISO. The transactions done by these market participants are energy transactions and are normally done at the ‘border’ without a specific resource named,” Jones said.
Comments due Jan. 22
Comments on the NOPR are due Jan. 22.
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