Commenters have weighed in overwhelmingly opposed to the regulations proposed in the FERC’s Notice of Intent (“NOI”) issued November 15, 2012 in RM13-100. In that NOI, the Commission’s stated intent was to enhance transparency in the natural gas market with new gas purchase reporting requirements, an intent the majority of the commenters argue would in fact be thwarted by the very reporting requirements proposed. Commenters note other concerns with FERC’s proposal, including that it is anticompetitive, and that the resources required for compliance would be considerable.

The NOI seeks to add to the transparency provisions of section 23 of the Natural Gas Act and the reporting requirements of Order 704. The Commission proposes to require reporting on every natural gas transaction within its jurisdiction that entails physical delivery for the next day or month. Many commenters noted that the Commission lacks jurisdiction over non-first sales. As a result, the NOI’S proposal would apply to a relatively small subset of the natural gas market and would place those required to report at an anticompetitive disadvantage. For example, LDCs with marketing affiliates or asset management agreements would be more likely to be covered by the rule than those that do not. In addition, as the jurisdictional status of many gas sales is unclear when the transaction is entered into, sellers may be unable to determine if the transaction is covered by the proposed reporting requirement.

Commenters also observed that as a preliminary matter there was no evidence that a new level of scrutiny was needed or, as Apache Corp. summed it up, the NOI is “a solution in search of a problem.” If the Commission suspects market manipulation, it has its Enforcement branch. Shell Energy pointed out that there are already “robust” data sources for the kind of information FERC seeks, and given that price formation in natural gas markets makes no distinction between transactions that are jurisdictional and those that are not, collecting these data only for jurisdictional transactions will not meaningfully enhance transparency.

Morgan Stanley may have been the main voice indicating general support for the NOI, approving its goals and suggesting that reporting be modeled on the Electronic Quarterly Report system for electricity sales. However, commenters opposing the NOI argued that the EQR is an inapt model inasmuch as it involves regulated public utilities. The Department of Justice weighed in with comments about how the risks of anti-competitive coordination “are greater when transparency involves the dissemination of detailed transaction-specific information, as is contemplated by the Commission in this proceeding.”

Finally, several commenters observed that if the proceeding goes forward, at a minimum FERC should discontinue Form 552 as redundant, should clarify that the proposal does not extend FERC’s jurisdiction over entities otherwise exempt under Natural Gas Act section 1(b), and that the reporting requirement should be annual rather than quarterly.