On November 3, 2009, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) conditionally approved the New York Independent System Operator, Inc.’s (“NYISO”) request to subject three generators to a new market mitigation measure, effective September 8, 2009, in response to conduct NYISO identified as an abuse of market power (“November 3 Order”).  Additionally, the Commission denied NYISO’s request to keep the names of the three generators privileged and confidential, stating that only trade secrets and commercial or financial information obtained from an individual receive such status.

On September 4, 2009, and as amended on September 30, 2009, NYISO filed with the Commission a new proposed rate schedule, Rate Schedule M-1, after identifying bidding behavior that it claims resulted in excessive guarantee uplift payments.  NYISO further stated that this behavior, conducted by three specific generators, also exceeded the facility’s marginal operating cost and increased the associated guarantee payment beyond the NYISO threshold by more than 100 percent. 

While NYISO did not go so far as to claim that this behavior technically violated any existing rule, it did state that such actions depart from conduct normally expected under competitive market conditions.  In order to immediately address the situation, NYISO stated that it would apply Rate Schedule M-1 on September 8, 2009.  Additionally, NYISO requested that the Commission exempt the public disclosure of the three generators from the Freedom of Information Act.

In its November 3 Order, the Commission allowed Rate Schedule M-1 to go into effect retroactively on September 8, 2009, as requested.  However, the Commission also asked NYISO for further information, including the Location-Based Marginal Prices used to calculate the associated guarantee payments at bid and reference levels, so that it can make its own guarantee payment calculations. 

As for the identity of the three generators, the Commission denied NYISO’s request to keep their identities privileged and confidential.  Instead, the Commission concluded that the names of the generators are neither a trade secret nor financial data.  Additionally, the Commission ruled that disclosing the names of the generators will not impair the Commission’s ability to obtain necessary information in the future or cause substantial harm to their competitive positions.  As such, disclosing the generators’ names in and of themselves does not constitute confidential commercial information.

A copy of the Commission’s order can be found under Docket No. ER09-1682-000 at www.ferc.gov.