On October 8, 2019, FERC accepted ISO New England Inc.’s (“ISO-NE”) public and private versions of a filing containing the de-list bids (“De-List Bids”) and substation auction test prices (“Test Prices”) for the fourteenth Forward Capacity Auction (“FCA 14”), to be held in February 2020 and to become effective August 27, 2019. In the process, FERC also granted ISO-NE’s requested waiver of FERC’s regulations requiring parties requesting privileged treatment of their filings to provide a copy of such non-public documents to intervenors who execute a protective agreement.

As a part of ISO-NE’s annual FCA, which is conducted three years prior to the relevant delivery year, ISO-NE requires existing capacity resources that wish to either temporarily or permanently exit their capacity supply obligations to submit De-List Bids to ISO-NE. The De-List Bids include the lowest price point that the existing resource would be willing to provide capacity. On June 28, 2019, ISO-NE submitted to FERC public and private versions of a filing describing the De-List Bids and Test Prices submitted for FCA 14. On August 7, 2019, FERC staff issued a letter informing ISO-NE that the filing was deficient because it did not include a form of non-disclosure agreement for intervenors, as required by section 388.112(b) of FERC’s regulations for parties who are requesting privileged treatment of their filings. On August 9, 2019, ISO-NE responded by asking for a waiver of section 388.112(b), stating that the information contained within its filing should remain confidential to protect the FCA’s competitiveness, and should not be disclosed, even under a non-disclosure agreement.

In its order, FERC accepted ISO-NE’s filing, stating that the filing complies with ISO-NE’s Tariff. FERC also granted ISO-NE’s request for waiver. FERC stated that it has previously found that certain De-List Bids information, if revealed, could harm the ISO-NE Forward Capacity Market’s competitiveness. FERC concluded that the resource-specific, privileged information in ISO-NE’s filing could harm the competitiveness of the Forward Capacity Market. However, FERC also stated that, regardless of its decisions to grant ISO-NE’s waiver request, ISO-NE is not exempt from meeting FERC’s filing requirements in future proceedings, and that future requests for waiver will be determined on a case-by-case basis.

A copy of the order is available here.