NPRR518  Removal of Notification Requirement for Disclosures of Protected Information Required by CFTC

Protocol Section 1.3.5 requires ERCOT to notify a Market Participant prior to disclosing its information to any outside Entity, except when disclosing that information to the Public Utility Commission of Texas (PUCT), in which case no notice is required. As a condition for receiving an exemption from all but the anti-manipulation and anti-fraud provisions of the Commodity Exchange Act, the CFTC will mandate the removal of any requirement that ERCOT notify a Market Participant before disclosing its information in response to a subpoena or other request for information or documents from the CFTC. More specifically, the proposed CFTC order contemplates the following provision: "Notification of requests for information: With respect to each Requesting Party, neither the tariffs nor any other governing documents of the particular RTO or ISO pursuant to whose tariff the agreement, contract or transaction is to be offered or sold, shall include any requirement that the RTO or ISO notify its members prior to providing information to the Commission in response to a subpoena or other request for information or documentation." This NPRR therefore proposes to modify Section 1.3.6 to create an explicit exception to the prohibition against disclosing Protected Information that would authorize ERCOT to respond to CFTC requests, and further proposes adding an exception to the notice requirement in Section 1.3.5 to accommodate CFTC investigative requests. Like the current exception for the PUCT, this proposed exception is necessary because having to notify an affected Market Participant of this disclosure may lead the Market Participant to take actions that could compromise the investigation or other regulatory inquiries. This NPRR also proposes additional language in Section 1.3.4 that would require ERCOT to submit a written request for confidential treatment to the CFTC whenever disclosing Protected Information. CFTC rules require the filing of such a request as a condition for asserting confidentiality, and because the current Protocol language would otherwise require ERCOT to seek a protective order, which is not a readily available remedy in this circumstance, this additional language is necessary to ensure that all available means are used to protect Market Participant information.