| (3) Providing expert advice, analysis, reports, and
testimony services relating to the Reliability Monitor's analysis
and findings as part of the commission staff's case in enforcement
proceedings.
(l) Selection of the Reliability Monitor. The commission
may select an entity to act as the Reliability Monitor. If the commission
selects an entity other than ERCOT to act as the Reliability Monitor,
the Reliability Monitor must be independent from ERCOT and is not
subject to the supervision of ERCOT with respect to its monitoring
and investigative activities. If the commission selects an entity
other than ERCOT to act as the Reliability Monitor, the commission
and ERCOT will enter into a contract with the selected entity. In
selecting the Reliability Monitor, the commission must consider whether
the Reliability Monitor satisfies the following criteria:
(1) Independence, objectivity, and the absence of potential
conflicts of interest;
(2) Experience performing compliance monitoring of
reliability-related laws;
(3) Familiarity with the ERCOT Region and understanding
of reliability-related ERCOT protocols, procedures, and other operating
standards;
(4) Ability to manage confidential information appropriately;
and
(5) Cost effectiveness.
(m) Funding of the Reliability Monitor. ERCOT must
fund the operations of the Reliability Monitor from the fee authorized
by PURA §39.151.
(n) Standards for record keeping.
(1) A market participant who schedules through a qualified
scheduling entity (QSE) that submits schedules to ERCOT on behalf
of more than one market participants must maintain records to show
scheduling, offer, and bidding information for all schedules, offers,
and bids that its QSE has submitted to ERCOT on its behalf, by interval.
(2) All market participants and ERCOT must maintain
records relative to market participants' activities in the ERCOT-administered
markets to show:
(A) information on transactions, as defined in §25.93(c)(3)
of this title (relating to Quarterly Wholesale Electricity Transaction
Reports), including the date, type of transaction, amount of transaction,
and entities involved;
(B) information and documentation of all planned, maintenance,
and forced generation and transmission outages including all documentation
necessary to document the reason for the outage;
(C) information described under this subsection including
transaction information, information on pricing, settlement information,
and other information that would be relevant to an investigation under
this section, and that has been disclosed to market publications and
publishers of surveys and price indices, including the date, information
disclosed, and the name of the employees involved in providing the
information as well as the publisher to whom it was provided; and
(D) reports of the market participant's financial information
given to external parties, including the date, financial results reported,
and the party to whom financial information was reported, if applicable.
(3) After the effective date of this section, all records
referred to in this subsection except verbal dispatch instructions
(VDIs) must be kept for a minimum of three years from the date of
the event. ERCOT must keep VDI records for a minimum of two years.
All records must be made available to the commission for inspection
upon request.
(4) A market participant must, upon request from the
commission, provide the information referred to in this subsection
to the commission, and may, if applicable, provide it under a confidentiality
agreement or protective order pursuant to §22.71(d) of this title
(relating to Filing of Pleadings, Documents, and Other Material).
(o) Investigation. The commission staff may initiate
an informal fact-finding review based on a complaint or upon its own
initiative to obtain information regarding facts, conditions, practices,
or matters that it may find necessary or proper to ascertain in order
to evaluate whether any market entity has violated any provision of
this section.
(1) The commission staff will contact the market entity
whose activities are in question to provide the market entity an opportunity
to explain its activities. The commission staff may require the market
entity to provide information reasonably necessary for the purposes
described in this subsection.
(2) If the market entity asserts that the information
requested by commission staff is confidential, the information must
be provided to commission staff as confidential information related
to settlement negotiations or other asserted bases for confidentiality
pursuant to §22.71(d)(4) of this title.
(3) If after conducting its fact-finding review, the
commission staff determines that a market entity may have violated
this section, the commission staff may request that the commission
initiate a formal investigation against the market entity pursuant
to §22.241 of this title (relating to Investigations).
(4) If, as a result of its investigation, commission
staff determines that there is evidence of a violation of this section
by a market entity, the commission staff may request that the commission
initiate appropriate enforcement action against the market entity.
A notice of violation requesting administrative penalties or disgorgement
of excess revenues must comply with the requirements of §22.246
of this title (relating to Administrative Penalties). Adjudication
of a notice of violation requesting both an administrative penalty
and disgorgement of excess revenues may be conducted within a single
contested case proceeding. Additionally, for alleged violations that
have been reviewed in the informal procedure established by this subsection,
the commission staff must include as part of its prima facie case:
(A) a statement either that--
(i) the commission staff has conducted the investigation
allowed by this section; or
(ii) the market entity has failed to comply with the
requirements of paragraph (5) of this subsection;
(B) a summary of the evidence indicating to the commission
staff that the market entity has violated one of the provisions of
this section;
(C) a summary of any evidence indicating to the commission
staff that the market entity benefited from the alleged violation
or materially harmed the market; and
(D) a statement that the staff has concluded that the
market entity failed to demonstrate, in the course of the investigation,
the applicability of an exclusion or affirmative defense under subsection
(h) of this section.
(5) A market entity subject to an informal fact-finding
review or a formal investigation by the commission staff has an obligation
to fully cooperate with the investigation, to make its company representatives
available within a reasonable period of time to discuss the subject
of the investigation with the commission staff, and to respond to
the commission staff's requests for information within a reasonable
time frame as requested by the commission staff.
(6) The procedure for informal fact-finding review
established in this subsection does not prevent any person or commission
staff from filing a formal complaint with the commission pursuant
to §22.242 of this title (relating to Complaints) or pursuing
other relief available by law.
(7) If, in the course of its investigation under this
subsection, commission staff determines that formal enforcement action
is not warranted, the commission staff may work with the market entity
to ensure any issues of concern are addressed and appropriate remedial
actions have been taken.
(p) Remedies. If the commission finds that a market
entity is in violation of this section, the commission may seek or
impose any legal remedy it determines appropriate for the violation
involved, provided that the remedy of disgorgement of excess revenues
will be imposed for violations and continuing violations of PURA §39.157
and may be imposed for other violations of this section.
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