18 CFR 35.41(d)

kpayne on DSK54DXVN1OFR with $$_JOB

Federal Energy Regulatory Commission
(d) Information sharing. (1) A franchised public utility with captive customers may not share market information with a market-regulated power
sales affiliate if the sharing could be
used to the detriment of captive customers, unless simultaneously disclosed to the public.
(2) Permissibly shared support employees, field and maintenance employees and senior officers and board of directors under §§ 35.39(c)(2)(ii) may have
access to information covered by the
prohibition of § 35.39(d)(1), subject to
the no-conduit provision in § 35.39(g).
(e) Non-power goods or services. (1) Unless otherwise permitted by Commission rule or order, sales of any nonpower goods or services by a franchised
public utility with captive customers,
to a market-regulated power sales affiliate must be at the higher of cost or
market price.
(2) Unless otherwise permitted by
Commission rule or order, sales of any
non-power goods or services by a market-regulated power sales affiliate to
an affiliated franchised public utility
with captive customers may not be at
a price above market.
(f) Brokering of power. (1) Unless otherwise permitted by Commission rule
or order, to the extent a market-regulated power sales affiliate seeks to
broker power for an affiliated franchised public utility with captive customers:
(i) The market-regulated power sales
affiliate must offer the franchised public utility’s power first;
(ii) The arrangement between the
market-regulated power sales affiliate
and the franchised public utility must
be non-exclusive; and
(iii) The market-regulated power
sales affiliate may not accept any fees
in conjunction with any brokering
services it performs for an affiliated
franchised public utility.
(2) Unless otherwise permitted by
Commission rule or order, to the extent a franchised public utility with
captive customers seeks to broker
power for a market-regulated power
sales affiliate:
(i) The franchised public utility must
charge the higher of its costs for the
service or the market price for such
services;

§ 35.41
(ii) The franchised public utility
must market its own power first, and
simultaneously make public (on the
Internet) any market information
shared with its affiliate during the
brokering; and
(iii) The franchised public utility
must post on the Internet the actual
brokering charges imposed.
(g) No conduit provision. A franchised
public utility with captive customers
and a market-regulated power sales affiliate are prohibited from using anyone, including asset managers, as a
conduit to circumvent the affiliate restrictions in §§ 35.39(a) through (g).
(h) Franchised utilities without captive
customers. If necessary, any affiliate restrictions regarding separation of functions, power sales or non-power goods
and services transactions, or brokering
involving two or more franchised public utilities, one or more of whom has
captive customers and one or more of
whom does not have captive customers,
will be imposed on a case-by-case basis.
[Order 697, 72 FR 40038, July 20, 2007, as
amended by Order 697–A, 73 FR 25912, May 7,
2008]

§ 35.40 Ancillary services.
A Seller may make sales of ancillary
services at market-based rates only if
it has been authorized by the Commission and only in specific geographic
markets as the Commission has authorized.
§ 35.41 Market behavior rules.
(a) Unit operation. Where a Seller participates in a Commission-approved organized market, Seller must operate
and schedule generating facilities, undertake maintenance, declare outages,
and commit or otherwise bid supply in
a manner that complies with the Commission-approved rules and regulations
of the applicable market. A Seller is
not required to bid or supply electric
energy or other electricity products
unless such requirement is a part of a
separate Commission-approved tariff or
is a requirement applicable to Seller
through Seller’s participation in a
Commission-approved organized market.
(b) Communications. A Seller must
provide accurate and factual information and not submit false or misleading

341

VerDate Sep<11>2014

17:49 May 23, 2018

Jkt 244061

PO 00000

Frm 00351

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31

§ 35.42

18 CFR Ch. I (4–1–18 Edition)

information, or omit material information, in any communication with the
Commission,
Commission-approved
market
monitors,
Commission-approved regional transmission organizations,
Commission-approved
independent system operators, or jurisdictional transmission providers, unless
Seller exercises due diligence to prevent such occurrences.
(c) Price reporting. To the extent a
Seller engages in reporting of transactions to publishers of electric or natural gas price indices, Seller must provide accurate and factual information,
and not knowingly submit false or misleading information or omit material
information to any such publisher, by
reporting its transactions in a manner
consistent with the procedures set
forth in the Policy Statement on Natural
Gas and Electric Price Indices, issued by
the Commission in Docket No. PL03–3–
000, and any clarifications thereto.
Seller must identify as part of its Electric Quarterly Report filing requirement in § 35.10b of this chapter the publishers of electricity and natural gas
indices to which it reports its transactions. In addition, Seller must adhere to any other standards and requirements for price reporting as the
Commission may order.
(d) Records retention. A Seller must
retain, for a period of five years, all
data and information upon which it
billed the prices it charged for the electric energy or electric energy products
it sold pursuant to Seller’s marketbased rate tariff, and the prices it reported for use in price indices.

kpayne on DSK54DXVN1OFR with $$_JOB

[Order 697, 72 FR 40038, July 20, 2007, as
amended by Order 768, 77 FR 61924, Oct. 11,
2012]

§ 35.42 Change in status reporting requirement.
(a) As a condition of obtaining and
retaining market-based rate authority,
a Seller must timely report to the
Commission any change in status that
would reflect a departure from the
characteristics the Commission relied
upon in granting market-based rate authority. A change in status includes,
but is not limited to, the following:
(1) Ownership or control of generation capacity or long-term firm purchases of capacity and/or energy that

results in cumulative net increases
(i.e., the difference between increases
and decreases in affiliated generation
capacity) of 100 MW or more of capacity based on nameplate or seasonal capacity ratings, or, for solar photovoltaic facilities, nameplate capacity,
or, for other energy-limited resources,
nameplate or five-year average capacity factors, in any individual relevant
geographic market, or of inputs to
electric power production, or ownership, operation or control of transmission facilities; or
(2) Affiliation with any entity not
disclosed in the application for market-based rate authority that:
(i) Owns or controls generation facilities or has long-term firm purchases of
capacity and/or energy that results in
cumulative net increases (i.e., the difference between increases and decreases in affiliated generation capacity) of 100 MW or more of capacity
based on nameplate or seasonal capacity ratings, or, for solar photovoltaic
facilities, nameplate capacity, or, for
other energy-limited resources, nameplate or five-year average capacity factors, in any individual relevant geographic market;
(ii) Owns or controls inputs to electric power production;
(iii) Owns, operates or controls transmission facilities; or
(iv) Has a franchised service area.
(b) Any change in status subject to
paragraph (a) of this section must be
filed no later than 30 days after the
change in status occurs. Power sales
contracts with future delivery are reportable 30 days after the physical delivery has begun. Failure to timely file
a change in status report constitutes a
tariff violation.
(c) When submitting a change in status notification regarding a change
that impacts the pertinent assets held
by a Seller or its affiliates with market-based rate authorization, a Seller
must include an appendix of all assets,
including the new assets and/or affiliates reported in the change in status,
in the form provided in appendix B of
this subpart, and an organizational
chart. The organizational chart must
depict the Seller’s prior and new corporate structures indicating all affiliates unless the Seller demonstrates

342

VerDate Sep<11>2014

17:49 May 23, 2018

Jkt 244061

PO 00000

Frm 00352

Fmt 8010

Sfmt 8010

Q:\18\18V1.TXT

31