On April 27, 2011, the Commodity Futures Trading Commission (“CFTC”) and Securities Exchange Commission (“SEC”) issued a proposed rule to further define “swap,” “security-based swap” and “security-based swap agreement” in connection with the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”).

On April 21, 2011, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) Commission affirmed the Initial Decision of Administrative Law Judge Carmen Cintron (the “Initial Decision”) determining that Brian Hunter violated the anti-manipulation rule in the first fully-litigated proceeding under FERC’s enhanced enforcement authority under § 4A of the Natural Gas Act.  The rule prohibits manipulation in connection with transactions under the jurisdiction of FERC (see January 28, 2010 edition of the WER).  The Commission also ordered a $30 million dollar civil penalty.

On April 21, 2011, FERC released a Notice of Proposed Rulemaking (“NOPR”) that would require non-public utilities with annual wholesale sales greater than four million megawatt hours (“MWh”) and non-public utility balancing authorities with more than one million MWh in wholesale sales to submit Electric Quarterly Reports (“EQRs”). 

The Commission recently issued two orders addressing controversial capacity market issues.  On April 12, 2011, the Commission approved a rate filing by PJM Interconnection, LLC (“PJM”) that will modify the minimum offer price rule (“MOPR”) to prevent what PJM called the threat of uneconomic entry of new generation (the “PJM Order”).  On April 13, 2011, the Commission addressed issues in connection with ISO-New England’s (“ISO-NE”) Forward Capacity Market (“FCM”) and ordered ISO-NE to develop an offer-floor mitigation “construct” similar to that of PJM and the New York Independent System Operator (“NYISO”) in order to deal with Out of Market (“OOM”) resources suppressing clearing prices below competitive levels (“ISO-NE Order”).

On April 8, 2011, the Midwest Independent System Operator, Inc. (“MISO”) filed a petition for Declaratory Order (“Petition”) from the Federal Energy Regulatory Commission (“FERC” or the “Commission”) that the terms of the Joint Operating Agreement (“JOA”) currently in effect between MISO and the Southwest Power Pool (“SPP”) concerning sharing of transmission capacity on a common path will remain applicable to Entergy Arkansas, Inc. (“Entergy”) if Entergy becomes a transmission-owning member of MISO.

On April 7, 2011, the Federal Energy Regulatory Commission (“FERC” or the “Commission) submitted a report on Performance Metrics for Independent System Operators (“ISOs”) and Regional Transmission Organizations (“RTOs”) (the “Report”). 

On April 6, 2011, FERC Chairman Jon Wellinghoff spoke at a roundtable with reporters about FERC rate investigations, among other topics. 

On March 31, 2011, FERC issued a Notice of Intent Not to Act against the California Public Utilities Commission (“CPUC”) for not complying with the Public Utilities Regulatory Policies Act of 1978 (“PURPA”).