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February 10, 2012
NEM's 15th Annual National Restructuring Conference

Since this is the beginning of NEM’s 15th Year, we have made special plans to celebrate this milestone at our 15th Annual National Restructuring Conference in Washington, DC on April 24 and 25, 2012. The Conference will be held at the Embassy Suites DC Convention Center, 900 10th Street, NW, Washington, DC. The Agenda is available at this hotlink.

Public Service Commission Chairs, Commissioners and other elected and appointed officials from around the country have already started to confirm their participation. Your sponsorship and support would be very helpful to make this NEM Event the best ever.

Sponsorship opportunities for this event can be viewed online at this hotlink.

Early registration for the April event is available online at this hotlink.

Joint ISO/RTO Request for Public Interest Exemption Under Dodd Frank

A joint filing was made by CAISO, ERCOT, ISONE, MISO, NYISO and PJM with CFTC this week seeking a public interest exemption under the Dodd Frank Act. The exemption is sought for the following:

any contract, agreement or transaction:
(1) offered or entered into in a market pursuant to a Requesting Party’s Tariff, such Tariff having been approved or permitted to take effect by;
(i) the FERC, or
(ii) with respect to ERCOT, the Public Utility Commission of Texas; and
(2) which is for the purchase or sale of one of the following electricity-related products;
(i) FTRs;
(ii) Energy Transactions;
(iii) Forward Capacity Transactions; or
(iii) Reserve or Regulation Transactions.

In the ISO/RTO filing they specifically ask that CFTC not determine whether the transactions lie within CFTC jurisdiction, noting that these transactions are subject to pervasive regulation by FERC and/or the PUCT. Rather the filing is being made for the sake of providing market participants with regulatory certainty. The full text of the Joint ISO/RTO Filing is available on the NEM Website.

House Agriculture Committee Bills to Amend Dodd Frank

The House Agriculture Committee advanced by voice vote six bills that would amend Title VII of the Dodd-Frank Act. This is in response to concerns that CFTC's eventual regulations to implement Dodd Frank would reach unintended entities and transactions, with negative consequences to the U.S. economy. The six bills being considered in the Committee are as follows:

HR3527, titled "Protecting Main Street End-Users from Excessive Regulation," would modify the Dodd Frank definition of swap dealer to prohibit CFTC from considering an entity's transactions entered into for the purpose of hedging or mitigating commercial risk. CFTC would be required to adopt rules distinguishing swap dealing activities from trading of swaps. It would also amend the de minimis exemption to the swap dealer definition to exempt those that enter into swap dealing transactions with or on behalf of customers and the total amount of outstanding swap dealing transactions is less than $3 billion, indexed to inflation, over the previous calendar year.

HR2682, titled "The Business Risk Mitigation and Price Stablization Act," would clarify that initial and variation margin requirements do not apply to swaps in which one of the counterparties is not a financial entity and qualifies for the end-user clearing exception in Section 2(h)(7)(A) of the Commodity Exchange Act.

HR2779 would exclude from the Commodity Exchange Act definition of "swap" those swap transactions involving a party that is controlling, controlled by or under common control with its counterparty. The transactions would be reported to a swap data repository or CFTC.

HR1840 would require CFTC to assess the costs and benefits of regulations or orders before they are issued and outlines relevant factors to review in that assessment.

HR2586, titled "The Swap Execution Facility Clarification Act," would prohibit regulators from requiring a minimum number of participants to receive or respond to quote requests. Regulators would also be prohibited from limiting means of interstate commerce used to execute swaps.

HR3336, titled "The Small Business Credit Availability Act," is intended to ensure that banks and farm credit institutions can provide interest rate swaps for customers loans without being deemed as "swap dealers."

Click here to view all past updates.
Proposed Rulemaking on Electric Code of Conduct Regulations

The Commission adopted electric code of conduct regulations in 2000. In 2010, it issued an ANOPR to reconsider the code in view of changes that have occurred in the marketplace since that time. The Commission in 2011 issued a proposed rulemaking that would make certain substantive and organizational changes to the regulations. The proposed rulemaking has now been published in the PA Bulletin, setting the due date for submission of comments as March 27, 2012.

The Commission proposes to divide the rules into six subject matter categories: 1) non-discrimination requirements; 2) customer requests for information; 3) prohibited transactions and activities; 4) accounting and training requirements; 5) dispute resolution procedures; and 6) penalties.

Substantive changes to the rules include:
1) requiring utility representatives to refer customers to the Commission’s retail choice website and offer to provide customers with a list of current suppliers;
2) expressly prohibiting the utility from financially subsidizing an affiliated supplier;
3) prohibiting the transfer of any regulated utility assets to an affiliated supplier at less than market value;
4) requiring a supplier to enter into a licensing agreement with a utility before using the utility’s service mark or trademark and to use a prominent disclaimer advising that the supplier is not the same company as the utility and that a customer need not buy the supplier’s services or products in order to continue receiving services from the utility;
5) prohibiting a supplier (affiliated or non-affiliated) from having the same or substantially similar name or fictitious name as the utility or its corporate parent; and
6) prohibiting joint marketing, sales and promotional activities by utilities and affiliate suppliers unless the joint marketing, sales, or promotional activities are offered to all suppliers in the same manner under similar terms and conditions.

The full text of the NOPR is available on the NEM Website.

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