81 FR 44998 - Availability of Certain North American Electric Reliability Corporation Databases to the Commission
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission Federal Register Volume 81, Issue 133 (July 12, 2016)
Federal Energy Regulatory Commission
Federal Register Volume 81, Issue 133 (July 12, 2016)
| Page Range | 44998-45008 | |
| FR Document | 2016-14760 |
[Federal Register Volume 81, Number 133 (Tuesday, July 12, 2016)] [Rules and Regulations] [Pages 44998-45008] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-14760] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 39 [Docket No. RM15-25-000; Order No. 824] Availability of Certain North American Electric Reliability Corporation Databases to the Commission AGENCY: Federal Energy Regulatory Commission, Department of Energy. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Federal Energy Regulatory Commission (Commission) amends its regulations to require the North American Electric Reliability Corporation (NERC) to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to certain databases [[Page 44999]] compiled and maintained by NERC. The amended regulation applies to the following NERC databases: The Transmission Availability Data System, the Generating Availability Data System, and the protection system misoperations database. Access to these databases, which will be limited to data regarding U.S. facilities provided to NERC on a mandatory basis, will provide the Commission with information necessary to determine the need for new or modified Reliability Standards and to better understand NERC's periodic reliability and adequacy assessments. DATES: Effective date: This rule will become effective July 12, 2016. Compliance date: The compliance date is based on issuance of the final rule in Docket No. RM16-15-000. The Commission will publish a document in the Federal Register announcing the compliance date. FOR FURTHER INFORMATION CONTACT: Raymond Orocco-John (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6593, [email protected]. Julie Greenisen (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6362, [email protected]. SUPPLEMENTARY INFORMATION: Order No. 824 Final Rule 1. The Commission amends its regulations, pursuant to section 215 of the Federal Power Act (FPA),\1\ to require the North American Electric Reliability Corporation (NERC) to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to certain databases compiled and maintained by NERC. The amended regulation applies to the following NERC databases: (1) The Transmission Availability Data System (TADS), (2) the Generating Availability Data System (GADS), and (3) the protection system misoperations database. Access to these databases, which will be limited to data regarding U.S. facilities provided to NERC on a mandatory basis, will provide the Commission with information necessary to determine the need for new or modified Reliability Standards and to better understand NERC's periodic reliability and adequacy assessments. --------------------------------------------------------------------------- \1\ 16 U.S.C. 824o. --------------------------------------------------------------------------- I. Background A. Section 215 and Order No. 672 2. Section 215 of the FPA requires the Commission to certify an Electric Reliability Organization (ERO), responsible for developing mandatory and enforceable Reliability Standards, subject to Commission review and approval. Reliability Standards may be enforced by NERC, subject to Commission oversight, or by the Commission independently.\2\ In addition, section 215(g) of the FPA requires the ERO to conduct periodic assessments of the reliability and adequacy of the Bulk-Power System in North America.\3\ Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO,\4\ and subsequently certified NERC as the ERO. --------------------------------------------------------------------------- \2\ 16 U.S.C. 824o(e). \3\ Id. 824o(g). \4\ Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ] 31,204, order on reh'g, Order No. 672-A, FERC Stats. & Regs. ] 31,212 (2006). --------------------------------------------------------------------------- 3. Section 39.2(d) of the Commission's regulations requires NERC and each Regional Entity to ``provide the Commission such information as is necessary to implement section 215 of the Federal Power Act.'' \5\ Section 39.2(d) of the Commission's regulations also requires each user, owner and operator of the Bulk-Power System within the United States (other than Alaska and Hawaii) to provide the Commission, NERC and each applicable Regional Entity with ``such information as is necessary to implement section 215 of the Federal Power Act as determined by the Commission and set out in the Rules of the Electric Reliability Organization and each applicable Regional Entity.'' \6\ --------------------------------------------------------------------------- \5\ 18 CFR 39.2(d). \6\ Id. 4. The Commission promulgated section 39.2(d) of its regulations in Order No. 672.\7\ The Commission explained in Order No. 672 that: --------------------------------------------------------------------------- \7\ Order No. 672, FERC Stats. & Regs. ] 31,204 at P 114. The Commission agrees . . . that, to fulfill its obligations under this Final Rule, the ERO or a Regional Entity will need access to certain data from users, owners and operators of the Bulk-Power System. Further, the Commission will need access to such information as is necessary to fulfill its oversight and enforcement roles under the statute.\8\ --------------------------------------------------------------------------- \8\ Id. --------------------------------------------------------------------------- B. NERC Databases 5. NERC conducts ongoing, mandatory data collections from registered entities to populate databases for transmission outages through TADS, generation outages through GADS, and protection system misoperations through NERC's protection system misoperations database. Each of these NERC databases is discussed below. 1. TADS Database 6. NERC initiated collection of TADS data on a mandatory basis in 2007 by issuing a data request pursuant to section 1600 of the NERC Rules of Procedure.\9\ The request required that, beginning in January 2008, applicable entities provide certain data for the TADS database based on a common template.\10\ In 2010, NERC expanded its collection of TADS data to include additional fields of information on transmission outages.\11\ --------------------------------------------------------------------------- \9\ See generally NERC, Summary of Phase I TADS Data Collection (November 9, 2007), http://www.nerc.com/pa/RAPA/tads/TADSTF%20Archives%20DL/TADS_Data_Request_Summary.pdf. \10\ See generally NERC, Transmission Availability Data System (TADS) Data Reporting Instruction Manual (November 20, 2007), http://www.nerc.com/comm/PC/Transmission%20Availability%20Data%20System%20Working%20Grou/TADSTF%20Archives/Data_Reporting_Instr_Manual_11_20_07.pdf. \11\ See generally NERC, Transmission Availability Data System Phase II Final Report (September 11, 2008), http://www.nerc.com/pa/RAPA/tads/TransmissionAvailabilityDataSyatemRF/TADS_Phase_II_Final_Report_091108.pdf. --------------------------------------------------------------------------- 7. The TADS database compiles transmission outage data in a common format for: (1) Bulk electric system AC circuits (overhead and underground); (2) transmission transformers (except generator step-up units); (3) bulk electric system AC/DC back-to-back converters; and (4) bulk electric system DC circuits.\12\ The TADS data collection template includes the following information fields: (1) Type of facilities, (2) outage start time and duration, (3) event type, (4) initiating cause code, and (5) sustained cause code (for sustained outages).\13\ ``Cause codes'' for common causes of transmission outages include: (1) Lightning, (2) fire, (3) vandalism, (4) failed equipment (with multiple sub-listings), (5) vegetation, and (6) ``unknown.'' \14\ There were 10,787 reported TADS events between 2012 and 2014.\15\ --------------------------------------------------------------------------- \12\ See NERC TADS Home Page, http://www.nerc.com/pa/RAPA/tads/Pages/default.aspx. \13\ See Transmission Availability Data System (TADS) Data Reporting Instruction Manual (August 1, 2014), http://www.nerc.com/pa/RAPA/tads/Documents/2015_TADS_DRI.pdf. \14\ See Transmission Availability Data System Definitions (August 1, 2014), http://www.nerc.com/pa/RAPA/tads/Documents/2015_TADS_Appendix_7.pdf. \15\ See, e.g., NERC, State of Reliability 2015, Appendix A (Statistical Analysis for Risk Issue Identification and Transmission Outage Severity Analysis) at 86 (May 2015), http://www.nerc.com/pa/RAPA/PA/Performance%20Analysis%20DL/2015%20State%20of%20Reliability.pdf. The most recent data reported by NERC for TADS events is for the period 2012-2014. --------------------------------------------------------------------------- [[Page 45000]] 8. NERC uses TADS data to develop transmission metrics to analyze outage frequency, duration, causes, and other factors related to transmission outages.\16\ NERC also provides individual transmission owners with TADS metrics for their facilities.\17\ NERC issues an annual public report based on TADS data that shows aggregate metrics for each NERC Region, with the underlying data accorded confidential treatment.\18\ --------------------------------------------------------------------------- \16\ See NERC TADS Home Page. \17\ Id. \18\ Id. --------------------------------------------------------------------------- 2. GADS Database 9. NERC's collection of GADS data has been mandatory since 2012, pursuant to a data request issued in accordance with section 1600 of the NERC Rules of Procedure.\19\ The GADS database collects, records, and retrieves operating information on power plant availability, including event, performance, and design data.\20\ GADS data are used to support equipment reliability and availability analyses, as well as benchmarking studies.\21\ --------------------------------------------------------------------------- \19\ See NERC, Generating Availability Data System Mandatory Reporting of Conventional Generation Performance Data at 2 (July 2011), http://www.nerc.com/pa/RAPA/gads/MandatoryGADS/Revised_Final_Draft_GADSTF_Recommendation_Report.pdf; see also NERC GADS Home Page, http://www.nerc.com/pa/RAPA/gads/Pages/default.aspx. \20\ See NERC GADS Home Page. \21\ Id. --------------------------------------------------------------------------- 10. Currently, GADS collects outage data pertaining to ten types of conventional generating units with capacity of 20 MW and larger, including: (1) Fossil steam including fluidized bed design; (2) nuclear; (3) gas turbines/jet engines; (4) internal combustion engines (diesel engines); (5) hydro units/pumped storage; (6) combined cycle blocks and their related components; (7) cogeneration blocks and their related components; (8) multi-boiler/multi-turbine units; (9) geothermal units; and (10) other miscellaneous conventional generating units (e.g., biomass, landfill gases).\22\ The GADS data collection template includes the following design, event, and performance information: (1) Design records, (2) event records, and (3) performance records.\23\ Design records refer to the characteristics of each unit such as GADS utility code,\24\ GADS unit code,\25\ NERC Regional Entity where the unit is located, name of the unit, commercial operating date, and type of generating unit (fossil, combined cycle, etc.).\26\ Event records include information about when and to what extent the generating unit could not generate power.\27\ Performance records refer to monthly generation, unit[hyphen]attempted starts, actual starts, summary event outage information, and fuels.\28\ NERC has developed ``cause codes'' for the identification of common causes of unit outages based on the type of generating unit.\29\ For example, the cause codes section for fossil steam units includes codes for the boiler, steam turbine, generator, balance of plant, pollution control equipment, external, regulatory, safety and environmental, personnel errors, and performance testing.\30\ For 2011-2013, the GADS database contains data from more than 5,000 units.\31\ --------------------------------------------------------------------------- \22\ Generating Availability Data System Mandatory Reporting of Conventional Generation Performance Data at 15. \23\ Id., Appendix V (Rules of Procedure Section 1600 Justification) at 35. \24\ The GADS utility code is a code number referencing the utility that owns a generator. \25\ The GADS unit code is a code name referencing the generating unit involved. The GADS unit code may or may not contain the name of the generator owner. \26\ Id. \27\ Id. \28\ Id. \29\ NERC, Generating Availability Data System Data Reporting Instructions (January 1, 2015), Appendix B (Index to System/ Component Cause Codes) at 1, http://www.nerc.com/pa/RAPA/gads/DataReportingInstructions/Appendix_B1_Fossil_Steam_Unit_Cause_Codes.pdf. The most recent data reported by NERC for GADS events is for the period 2011-2013. \30\ Id. \31\ State of Reliability 2015, Appendix B (Analysis of Generation Data) at 107. --------------------------------------------------------------------------- 11. NERC uses GADS data to measure generation reliability and publishes aggregate performance metrics for each NERC Region in publicly available annual state of reliability and reliability assessment reports.\32\ The underlying data are typically accorded confidential treatment. --------------------------------------------------------------------------- \32\ See, e.g., id., Appendix B (Analysis of Generation Data). --------------------------------------------------------------------------- 3. Protection System Misoperations Database 12. The reporting of protection system misoperations data by transmission owners, generator owners and distribution providers has been mandatory since 2011 pursuant to Reliability Standard PRC-004.\33\ Following implementation of Reliability Standard PRC-004-4, the obligation to report misoperation data will remain mandatory but will be accomplished through a data request pursuant to section 1600 of the NERC Rules of Procedure.\34\ --------------------------------------------------------------------------- \33\ The Commission approved Reliability Standard PRC-004-1 (Analysis and Reporting of Transmission Protection System Misoperations) in Order No. 693. Mandatory Reliability Standards for the Bulk-Power System, Order No. 693, FERC Stats. & Regs. ] 31,242, at PP 1467-1469, order on reh'g, Order No. 693-A, 120 FERC ] 61,053 (2007). The Commission subsequently approved the following revisions and interpretations to Reliability Standard PRC-004, which was first renamed Analysis and Mitigation of Transmission and Generation Protection System Misoperations and then renamed Protection System Misoperation Identification and Correction: Reliability Standards PRC-004-1a, PRC-004-2, PRC-004-2a, PRC-004-2.1a, PRC-004-2.1(i)a, PRC-004-3, and PRC-004-4. See North American Electric Reliability Corp., 136 FERC ] 61,208 (2011) (approving interpretation resulting in Reliability Standard PRC-004-1a and Reliability Standard PRC-004- 2a); North American Electric Reliability Corp., 134 FERC ] 61,015 (2011) (approving Reliability Standard PRC-004-2); Generator Requirements at the Transmission Interface, Order No. 785, 144 FERC ] 61,221 (2013) (approving Reliability Standard PRC-004-2.1a); North American Electric Reliability Corp., 151 FERC ] 61,129 (2015) (approving Reliability Standard PRC-004-3); North American Electric Reliability Corp., 151 FERC ] 61,186 (2015) (approving Reliability Standards PRC-004-2.1(i)a and PRC-004-3); North American Electric Reliability Corp., Docket No. RD15-5-000 (Nov. 19, 2015) (delegated letter order) (approving Reliability Standard PRC-004-4); North American Electric Reliability Corp., Docket No. RD14-14-001, et al. (Dec. 4, 2015) (delegated letter order) (approving Reliability Standard PRC-004-4(i) and PRC-004-5(i)). \34\ See generally NERC, Request for Data or Information Protection System Misoperation Data Collection (August 14, 2014), http://www.nerc.com/pa/RAPA/ProctectionSystemMisoperations/PRC-004-3%20Section%201600%20Data%20Request_20140729.pdf. Reliability Standard PRC-004-4 will become enforceable on July 1, 2016. --------------------------------------------------------------------------- 13. Currently, the protection system misoperations database collects more than 20 data fields for a reportable misoperation event, including: (1) Misoperation date; (2) event description; (3) protection systems/components that misoperated; (4) equipment removed from service (permanently or temporarily) as the result of the misoperation; (5) misoperation category; and (6) cause(s) of misoperation.\35\ For 2014, the protection system misoperations database contains information on approximately 2,000 misoperation events.\36\ --------------------------------------------------------------------------- \35\ Id. at 13-14; see also NERC, Protection System Misoperations Home Page, http://www.nerc.com/pa/RAPA/ri/Pages/ProtectionSystemMisoperations.aspx. \36\ State of Reliability 2015 at 47. --------------------------------------------------------------------------- 14. Protection system misoperations have exacerbated the severity of most cascading power outages, having played a significant role in the August 14, 2003 Northeast blackout, for example.\37\ NERC uses protection system misoperations data to assess protection system performance and trends in protection system performance that may negatively impact reliability.\38\ NERC publishes aggregate misoperation [[Page 45001]] information for each NERC Region in annual public state of reliability reports, with the underlying data being accorded confidential treatment.\39\ --------------------------------------------------------------------------- \37\ See Request for Data or Information Protection System Misoperation Data Collection at 5. \38\ See id. at 14. \39\ See, e.g., State of Reliability 2015 at 45-48. --------------------------------------------------------------------------- C. NOPR 15. On September 17, 2015, the Commission issued a Notice of Proposed Rulemaking (NOPR) proposing to amend the Commission's regulations to require NERC to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to the TADS, GADS, and protection system misoperations databases regarding U.S. facilities.\40\ In response to the NOPR, the Commission received 13 sets of comments.\41\ We address below the issues raised in the NOPR and comments. --------------------------------------------------------------------------- \40\ Availability of Certain North American Electric Reliability Corporation Databases to the Commission, Notice of Proposed Rulemaking, 80 FR 58,405 (Sept. 29, 2015), 152 FERC ] 61,208 (2015) (NOPR). \41\ The Appendix to this Final Rule lists the entities that filed comments in response to the NOPR. --------------------------------------------------------------------------- II. Discussion 16. Pursuant to section 215 of the FPA, we amend the Commission's regulations to require NERC to provide the Commission, and Commission staff, with access (i.e., view and download data), on an ongoing and non-public basis, to the TADS, GADS, and protection system misoperations databases. As proposed in the NOPR and clarified in the language of the new regulation, the Commission's access will be limited to data regarding U.S. facilities. In addition, as discussed further below, the Commission determines that NERC is not required to provide the Commission with access to data provided to NERC on a voluntary basis. 17. As discussed below, the Commission believes that access to these three NERC databases is necessary to carry out the Commission's obligations under section 215 of the FPA. Further, as discussed in Section II.B.1 below, we believe that if access is limited to data mandatorily provided, Commission access to the TADS, GADS, and protection system misoperations databases will not result in a reduction in the level or quality of information that users, owners and operators of the Bulk-Power System share with NERC and the Regional Entities, and will not otherwise result in a so-called chilling effect on NERC's data-gathering efforts. We also discuss the following matters below: (A) Authority to require and need for Commission access to NERC databases; (B) information voluntarily provided; (C) confidential information; (D) NERC's alternative proposal; and (E) information collection. A. Authority To Require and Need for Commission Access to NERC Databases NOPR 18. In the NOPR, the Commission stated that its proposed access to the TADS, GADS and protection system misoperations databases regarding U.S. facilities was ``necessary to carry out the Commission's statutory authority: (1) To evaluate the need to direct new or modified Reliability Standards under section 215(d) of the FPA; and (2) to better understand NERC's periodic assessments and reports . . . regarding the reliability and adequacy of the Bulk-Power System under section 215(g) of the FPA.'' \42\ The Commission first explained that access to the databases would inform it ``more quickly, directly and comprehensively about reliability trends or reliability gaps that might require the Commission to direct the ERO to develop new or modified Reliability Standards,'' responsibility which falls not only to the ERO but also to the Commission under FPA section 215(d).\43\ The Commission noted that each of the three databases could provide important information regarding the need for new or modified Reliability Standards and for assessing Bulk-Power System reliability, as NERC had itself recognized when justifying the need for mandatory reporting (to NERC) of TADS, GADS, and protection system misoperation data.\44\ --------------------------------------------------------------------------- \42\ NOPR, 152 FERC ] 61,208 at P 17. \43\ Id. P 18. \44\ See id. P 19 (quoting NERC's statements that ``TADS data is intended to provide a basis for standards'' and that protection system misoperations data is used to ``[i]dentify trends in Protection System performance that negatively impact reliability.'') --------------------------------------------------------------------------- 19. Second, the Commission explained in the NOPR that access to the data would ``assist the Commission with its understanding of the reliability and adequacy assessments periodically submitted by NERC pursuant to section 215(g) of the FPA.'' \45\ The Commission further stated that having direct access to the underlying data used in aggregate form in NERC's reliability reports would ``help[ ] the Commission to monitor causes of outages and detect emerging reliability issues.'' \46\ --------------------------------------------------------------------------- \45\ Id. P 20. \46\ Id. --------------------------------------------------------------------------- Comments 20. Four commenters generally support, or do not oppose, the Commission's proposal to access NERC's TADS, GADS, and protection system misoperations databases.\47\ Resilient Societies supports the Commission's proposed access to the NERC data ``because NERC has not performed, or not disclosed data analysis when the results might not be consistent with the interest of NERC's industry members in avoiding or minimizing regulation.'' \48\ --------------------------------------------------------------------------- \47\ WIRAB supports the NOPR as a whole. Resilient Societies, David Bardin, and SGS support greater access to NERC data, including access by the Commission, but Resilient Societies and David Bardin question the need to keep the data non-public, as discussed further in Section II.B.2, infra. \48\ Resilient Societies Comments at 2. --------------------------------------------------------------------------- 21. All other commenters, including NERC,\49\ the Trade Associations, and the Public Power Associations oppose the Commission's proposed regulation requiring NERC to provide the Commission access to NERC's TADS, GADS, and protection system misoperations databases. --------------------------------------------------------------------------- \49\ While NERC recognizes the Commission's objective of obtaining data needed to fulfill its oversight responsibilities, NERC asks the Commission to adopt its alternative proposal, discussed below in Section II.B.3, under which NERC would provide the Commission with access to anonymized TADS, GADS, and protection system misoperations data. The Northwest Public Power Association (NWPPA) and Western Electricity Coordinating Council (WECC) filed comments in support of NERC's comments, including NERC's proposed alternative to provide access to anonymized data. --------------------------------------------------------------------------- 22. The Trade Associations maintain that the Commission does not need access to these NERC databases to fulfill its obligations under FPA section 215, and that the Commission has multiple processes it can use to achieve its stated goals, including events analysis, reviewing patterns and trends in compliance and enforcement, coordination with NERC's technical committees, evaluating NERC's periodic and special reliability assessments, periodic review of individual standards, and discussions on emerging issues at technical conferences and workshops.\50\ The Trade Associations argue that these processes are sufficient to allow the Commission to obtain information needed to perform its functions ``without accessing the highly-sensitive, facility-specific raw data contained in the databases.'' \51\ --------------------------------------------------------------------------- \50\ See Trade Associations Comments at 5, 6-11. \51\ Id. at 6-7. --------------------------------------------------------------------------- The Trade Associations assert that ``access to the raw data contained in the databases without NERC and industry analysis will not directly achieve the Commission's goals of identifying gaps in Reliability Standards and in understanding NERC assessments because in and of itself the raw data, without context or NERC technical analysis, does not shed light on these [[Page 45002]] matters.'' \52\ While the Trade Associations thus object to any new requirement that NERC provide access to these databases, the Trade Associations ask that, if the Commission decides to move forward with such a requirement, the Commission issue a modified proposal to better explain ``how direct access to the raw data collected by NERC in the GADS, TADS, and misoperations databases will support [the Commission's] needs.'' \53\ --------------------------------------------------------------------------- \52\ Id. at 12-13. See also NERC Comments at 21-22 (stating that the proposed regulation ``is not tailored to support the Commission's objective under the NOPR, because it will not enable the Commission to place relevant data in context for purposes of completing meaningful analyses of the BPS'' and that ``the Commission would not be able to place relevant data in context to derive useful information, which may result in incorrect or inappropriate conclusions'' without engaging in a collaborative process with NERC. \53\ Trade Associations Comments at 12. --------------------------------------------------------------------------- Further, the Trade Associations and several other commenters argue that the NOPR proposal is not ``consistent'' with the division of responsibilities between the ERO and the Commission set forth in FPA section 215.\54\ The Trade Associations assert that ``[t]he assessment of reliability data in these databases is squarely within the role of the ERO, which `conduct[s] periodic assessments of the reliability and adequacy of the bulk-power system' '' and that ``[t]here is no equivalent role for the Commission.'' \55\ Similarly, the Public Power Associations contend that the NOPR proposal would impinge on the ERO's statutory authority to develop Reliability Standards, and that the FPA contemplates that the ERO should be the ``principal agent for standards development and the assessment of grid reliability.'' \56\ --------------------------------------------------------------------------- \54\ See e.g., Public Power Associations Comments at 2 (``the NOPR does not appear tailored to achieving that goal in a manner consistent with [FPA section 215's] statutory scheme.''). \55\ Trade Associations Comments at 16 (citing 16 U.S.C. 824o(g), and quoting Commissioner LaFleur's concurring statement to the NOPR noting that ``it is important that we recognize the distinction between (the Commission's) oversight role and NERC's primary responsibility to monitor reliability issues and to propose standards to address them.'') \56\ Public Power Associations Comments at 7; see also NERC Comments at 16-20. --------------------------------------------------------------------------- 23. The Public Power Associations point out that the Commission is to give due weight to the technical expertise of the ERO under FPA section 215(d)(2) and that FPA section 215(g) does not give the Commission an oversight role in performing periodic assessments of the reliability and adequacy of the Bulk-Power System, and express a general concern that the NOPR ``suggests a shift in the balance of responsibilities between NERC and FERC contemplated by FPA section 215.'' \57\ Similarly, NERC maintains that the proposed rule would ``operate in tension'' with section 215 of the FPA and would ``chill industry collaboration with the ERO and undermine the regulatory framework for reliability.'' \58\ --------------------------------------------------------------------------- \57\ Public Power Associations Comments at 7-8. The Public Power Associations accordingly ``urge the Commission to be mindful of the inefficiencies and potential confusion that would result from a situation in which NERC and FERC perform the same analytical roles.'' Id. at 2. \58\ NERC Comments at 6. --------------------------------------------------------------------------- Commission Determination 24. We find that the Commission's authority to require access to NERC's TADS, GADS, and protection system databases is fully consistent with FPA section 215, and that the NOPR adequately explained why access to that data is necessary for the Commission to carry out its obligations under FPA section 215.\59\ --------------------------------------------------------------------------- \59\ See NOPR, 152 FERC ] 61,208 at PP 17-20. --------------------------------------------------------------------------- 25. First, we disagree with arguments that Commission access to these databases reflects an unwarranted shift in the balance of responsibilities between NERC and the Commission under section 215 of the FPA.\60\ To the contrary, we believe that NERC and other industry commenters overstate the impact of the NOPR proposal, which recognized and acknowledged the respective roles of the Commission and NERC under section 215 of the FPA.\61\ NERC, as the ERO, is responsible for developing reliability standards to address reliability issues, whether identified by NERC, its stakeholders, or the Commission; the Commission then reviews and determines whether to approve those standards. Nothing in the NOPR or this Final Rule proposes to change that structure. --------------------------------------------------------------------------- \60\ E.g., Public Power Associations Comments at 6-9; Trade Associations Comments at 15-17. \61\ NOPR, 152 FERC ] 61,208 at P 18. --------------------------------------------------------------------------- 26. Rather, as explained in the NOPR and this Final Rule, the Commission has determined that access to these databases will aid the Commission's implementation of its statutory authority, under section 215(d)(5) of the FPA, to determine whether to require NERC to develop new or modified reliability standards. As with prior instances in which the Commission acted pursuant to this authority,\62\ NERC and its stakeholder process--not the Commission--would be responsible for the development of new or modified standards directed by the Commission. Therefore, Commission access to these databases does not supplant the role that NERC and its stakeholder process have in the standards development process. --------------------------------------------------------------------------- \62\ See, e.g., Reliability Standards for Physical Security Measures, 146 FERC ] 61,166 (2014); Reliability Standards for Geomagnetic Disturbances, 143 FERC ] 61,147 (2013). --------------------------------------------------------------------------- 27. We also disagree with assertions that the requirement in section 215(d)(2) of the FPA that the Commission give ``due weight to the technical expertise of the [ERO] with respect to the content of a proposed standard or modification to a reliability standard'' \63\ suggests that the Commission must limit itself to an oversight role in the standards development process, and should broadly defer to NERC and its stakeholders on matters related to standards development.\64\ As a threshold matter, the Commission did not rely on FPA section 215(d)(2), which addresses the Commission's authority to approve proposed Reliability Standards, as its statutory basis for proposing the new regulation. Instead the Commission relied on FPA section 215(d)(5), which vests the Commission with the authority, ``upon its own motion or upon complaint, [to] order the [ERO] to submit to the Commission a proposed reliability standard or a modification to a reliability standard that addresses a specific matter if the Commission considers such a new or modified reliability standard appropriate to carry out this section.'' \65\ Notably, while section 215(d)(2) affords ``due weight'' to the technical expertise of the ERO concerning the content of the standard, neither FPA section 215(d)(2) nor FPA section 215(d)(5) requires the Commission to afford ``due weight'' to the ERO's selection of which specific matters warrant a Reliability Standard. To the contrary, section 215(d)(5) explicitly authorizes the Commission to direct the ERO to develop new or modified Reliability Standards to address a specific matter if the Commission deems it ``appropriate'' to carry out section 215 of the FPA.\66\ We therefore see no inconsistency between affording ``due weight'' under section 215(d)(2) and ensuring the Commission's ability to effectively implement its authority under section 215(d)(5). --------------------------------------------------------------------------- \63\ 16 U.S.C. 824o(d)(2). \64\ E.g., Public Power Associations Comments at 7-8. \65\ Id. 824o(d)(5). \66\ We note that a proposed Reliability Standard submitted for Commission approval in response to a directive pursuant to section 215(d)(5) would be reviewed by the Commission pursuant to section 215(d)(2) of the FPA. Therefore, the ERO's technical expertise with respect to the content of the proposed standard would be afforded due weight. --------------------------------------------------------------------------- 28. Moreover, contrary to several commenters' assertions, nothing in FPA [[Page 45003]] section 215 states or suggests that the Commission's authority to direct the development or amendment of Reliability Standards is secondary to or otherwise ``duplicative'' of the ERO's authority to develop Reliability Standards on its own. NERC's authority to develop Reliability Standards under FPA section 215(d)(2) and the Commission's authority to direct NERC to develop Reliability Standards under FPA section 215(d)(5) are independent. Accordingly, the NOPR proposal does not represent a ``shift'' in responsibilities between the Commission and the ERO, and is instead part of the necessary input required by the Commission to carry out its statutory obligations to determine whether to direct the development or modification of a Reliability Standard under FPA section 215(d)(5).\67\ --------------------------------------------------------------------------- \67\ As stated in the NOPR and as previously explained in Order No. 672, access to relevant information, such as the information to be obtained through the new regulation, allows the Commission to fulfill its statutory obligations under section 215 of the FPA. NOPR, 152 FERC ] 61,208 at P 16 (citing Order No. 672, FERC Stats. & Regs. ] 31,204, at P 114). --------------------------------------------------------------------------- 29. With respect to how the Commission would use the data from the TADS, GADS, and protection system misoperations databases, including the Trade Associations' and others commenters' contention that access to raw data would not be useful in achieving the Commission's objectives, the Commission did not indicate in the NOPR that it would rely exclusively on such data in assessing the need for NERC to develop new or modified Reliability Standards or to better understand NERC's reliability assessments. Instead, the Commission has identified data that would assist in carrying out FPA section 215, and the Commission intends to analyze data from the NERC databases in addition to data from other existing resources (e.g., Commission, NERC, and industry resources), including disturbance reporting data and event analysis information, to facilitate the Commission's oversight of Bulk-Power System reliability. With respect to the Trade Associations' position that the Commission has other mechanisms that are adequate to fulfill its oversight obligations, we do not agree that the Commission's authority is limited to those mechanisms, particularly where we find, as here, that access to the additional information included in the three NERC databases is needed to meet our statutory obligations under FPA section 215. 30. We recognize, however, that we will be able to better evaluate the usefulness of the data in question as the Commission gains experience analyzing those data. Accordingly, we will continue to assess our need for access to these NERC databases after we gain adequate experience with this data following implementation of the new regulation. B. Access to Voluntarily-Provided and Confidential Information 31. NERC and a number of other commenters raise concerns about the impact of the Commission's access to the TADS, GADS, and protection system misoperations databases on the overall quality of data shared with NERC, asserting that such access may negatively impact the industry's provision of voluntary data to NERC, and that it otherwise raises confidentiality concerns that may not be easily addressed. The Trade Associations and other commenters argue that these concerns should preclude the Commission's moving forward with any requirement to provide Commission access to the raw data in the TADS, GADS, and protection system misoperation databases, while NERC and other commenters suggest an alternative approach (discussed in Section II.B.3, below) that would provide the Commission with limited access to the databases while attempting to more fully protect confidential or sensitive information provided to NERC by users, owners, and operators of the Bulk-Power System. Information Voluntarily Provided NOPR 32. In the NOPR, the Commission proposed to amend its regulations to require NERC to provide the Commission with access to the TADS, GADS and protection system misoperations databases. The Commission explained that these databases are populated with data collected through mandatory NERC data requests or Reliability Standards and that the access proposed in the NOPR would be limited to U.S. facilities.\68\ While the NOPR did not explicitly address whether the Commission's access to information in these databases should exclude data voluntarily provided to NERC (other than information regarding non-U.S. facilities), the Commission's description of each database focused on the data that is required to be provided to NERC and the justifications NERC has offered in making reporting of that data mandatory.\69\ --------------------------------------------------------------------------- \68\ See NOPR, 152 FERC ] 61,208 at PP 5-14, 15. \69\ Id. PP 5-14, 19. --------------------------------------------------------------------------- Comments 33. NERC contends that the NOPR proposal could have a negative impact on the quality and level of data voluntarily submitted by industry to NERC (i.e., data that is not currently required to be submitted to NERC under mandatory NERC data requests or Reliability Standards). NERC states that while the NOPR implies that it affects only data submitted pursuant to mandatory data reporting obligations, NERC is concerned that the proposed rule instead implicates both mandatory and voluntary data. Specifically, NERC states that TADS includes data voluntarily shared ``by non-U.S. Transmission Owners and data voluntarily shared prior to 2015 on Bulk Electric System transmission elements under 200 kV.'' \70\ NERC also states that GADS includes data ``voluntarily provided from generating units with less than 20 MW of capacity, data voluntarily provided prior to 2013 from generating units with less than 50 MW of capacity, and data being voluntarily shared for certain GADS event record fields.'' \71\ NERC further states that the protection system misoperations database includes ``voluntary data currently shared by non-U.S. entities and data shared with Regional Entities prior to EPAct 2005.'' \72\ Ultimately, NERC is concerned that the proposed rule requiring Commission access to these databases could ``return both NERC and the Commission to a state where industry only shares reliability-related data in response to mandatory data requests that provide a narrow window into the web of complex information necessary to ensure reliability.'' \73\ --------------------------------------------------------------------------- \70\ NERC Comments at 8-9. \71\ Id. at 9. \72\ Id. \73\ NERC Comments at 33. --------------------------------------------------------------------------- 34. The Public Power Associations and CEA agree with NERC's concerns and add that, if the Commission chooses to adopt the NOPR proposal, the Final Rule should clarify that the Commission will only use the accessed data for the purposes stated in the NOPR and not for compliance or enforcement purposes.\74\ CEA also requests that, if the Commission moves forward with its proposed regulation, it should modify the language of the regulation to clarify [[Page 45004]] that the Commission's access to data is limited to data regarding U.S. facilities. --------------------------------------------------------------------------- \74\ Public Power Associations Comments at 11; CEA Comments at 10-11 (stating that ``the establishment and administration of [the TADS, GADS, and protection system misoperations] databases have not been effectuated with FERC or other applicable governmental authorities in mind.'') --------------------------------------------------------------------------- 35. The Trade Associations also agree with NERC's concerns and, more broadly, argue that the NOPR proposal could ``chill'' industry information-sharing with NERC generally. The Trade Associations state that this chilling effect will be ``more profound'' if the Commission should, in the future, request access to other NERC databases that rely on voluntary information-sharing (such as NERC's Electricity Information Sharing and Analysis Center), or if the databases ``are used for non-reliability purposes, such as economic policy and enforcement purposes.'' \75\ --------------------------------------------------------------------------- \75\ Trade Associations Comments at 26. --------------------------------------------------------------------------- Commission Determination 36. In the NOPR, the Commission expressly proposed to exclude from the database access requirement information concerning non-U.S. facilities, and we will maintain that exclusion in the regulation as adopted. The Commission agrees with CEA that this exclusion can be clarified through a modification to the language of the proposed regulation, and we, accordingly, add a new sentence to the end of the regulation to clarify that Commission access will be limited to data regarding U.S. facilities. 37. In addition, while the NOPR did not explicitly state that the Commission's access to data would be limited to data provided to NERC as part of a mandatory data request or other NERC requirement, the Commission believes that it can achieve its objectives as stated in the NOPR with access to mandatorily-provided data only. Adopting this approach should mitigate NERC's and other commenters' concerns regarding the impact of the proposed regulation on the level and quality of voluntary information-sharing with NERC and the Regional Entities. Because the Commission will only be accessing data that entities are required to provide to NERC, there should be no impact on an entity's willingness to share additional, voluntary information. 38. While NERC maintains that entities may be hesitant to provide voluntary information to NERC or the Regional Entities because the Commission could seek to access that information in the future, we do not find these arguments to be persuasive, particularly in light of the Commission's decision to exclude voluntarily-provided information from the scope of the Final Rule. Moreover, we find that these concerns do not override our need for the data contained in NERC's TADS, GADS, and protection system misoperation databases. 39. With respect to requests to limit our use of the data accessed, the Commission's intent in seeking access to the data is as stated in the NOPR (i.e., to assess the potential need for new or modified Reliability Standards and to better understand NERC's periodic reliability and adequacy assessments). We believe the data will be most useful for evaluating overall reliability trends and identifying specific reliability concerns. For example, the data could provide insight into chronic or recurring system deficiencies, provide a basis for comparison of the reliability benefits of different kinds of equipment or system configurations, or be used to assess the effectiveness of reliability efforts across NERC, Regional Entities and industry. However, the Commission is not precluded from using the accessed data for other statutory purposes. 1. Confidentiality NOPR 40. In the NOPR, the Commission recognized that its proposal to access data in the TADS, GADS, and protection system misoperations databases ``might raise confidentiality issues,'' and stated that if the collected data include confidential information it would ``take appropriate steps, as provided for in our governing statutes and regulations, in handling such information.'' \76\ --------------------------------------------------------------------------- \76\ NOPR, 152 FERC ] 61,208 at P 22. --------------------------------------------------------------------------- Comments 41. NERC and industry commenters identify maintaining the confidentiality of TADS, GADS, and protection system misoperations data accessed by the Commission as a major concern with the NOPR proposal. NERC contends that treating such data as confidential is appropriate because ``the detailed data implicated by the NOPR could be misused to target vulnerabilities in the [Bulk-Power System].'' \77\ NERC maintains that while ``data implicated by the NOPR would normally be eligible for exemption from [the Freedom of Information Act (FOIA)] disclosure as commercial information or sensitive information in light of security interests, and protected as Confidential Information or [Critical Energy Infrastructure Information (CEII)] under Commission regulation, eligibility for exemption from disclosure under FOIA only partially mitigates risk to confidentiality,'' in part because the Commission has discretion whether to invoke such an exemption.\78\ NERC also asserts that the Commission has disclosed information in the past that was eligible for exemption from FOIA, including information treated as CEII.\79\ --------------------------------------------------------------------------- \77\ NERC Comments at 10. \78\ Id. at 27-28. \79\ Id. at 28. --------------------------------------------------------------------------- 42. Similarly, the Trade Associations maintain that the regulation, if adopted, ``would create a heightened risk of improper disclosure of the GADS, TADS, and misoperations information, risking harm to the Commission's jurisdictional markets and the security of the nation's bulk-power system.'' \80\ The Trade Associations describe the potential harm that could result from disclosure of the TADS, GADS, and misoperations data, and maintain that the heightened risk of disclosure stems not only from the potential for release through a FOIA request, but also from the unintentional release of data through security breaches.\81\ As examples, the Trade Associations state that data accessed by the Commission could be accidentally disseminated through ``misplaced hard drives or laptops, inadvertently directed emails, or incorrectly granted information access,'' and assert that ``the risk of information loss also increases with the number of individuals and organizations accessing and holding the data.'' \82\ --------------------------------------------------------------------------- \80\ Trade Associations Comments at 18-19. \81\ Id. at 20-21. \82\ Id. at 21. --------------------------------------------------------------------------- 43. Resilient Societies, by contrast, objects to the NOPR's proposal to preserve the confidentiality of the accessed data, raising a concern that the Commission might be restricted ``from analyzing the NERC data and then using conclusions developed thereby to support rulemaking or other public policy actions.'' \83\ Resilient Societies accordingly requests that the Commission adopt the NOPR with ``appropriate additional provisions to allow public disclosure of modeling parameters and other conclusions developed from the TADS and GADS data.'' \84\ --------------------------------------------------------------------------- \83\ Resilient Societies Comments at 2. \84\ Id. at 3. --------------------------------------------------------------------------- Commission Determination 44. It is clear from the record that maintaining the confidentiality of data included in the TADS, GADS, and protection system operations databases is a significant concern to NERC and the entities that provide information to these databases. The Commission recognizes that information contained in the TADS, GADS, and protection system misoperation databases may be sensitive, and that such information may qualify as CEII under the [[Page 45005]] Commission's regulations. As discussed below, and to address these concerns, we will defer the effectiveness of this Final Rule until the Commission issues a final rule adopting regulations to implement its recently-expanded authority to protect against the disclosure of ``critical electric infrastructure information.'' 45. As stated in the NOPR, the Commission commits that we will take appropriate steps in handling such information, in accordance with our governing statutes and regulations. Subsequent to the issuance of the NOPR, the Commission's authority to safeguard sensitive information has been enhanced through the recent enactment of FPA section 215A.\85\ FPA section 215A creates a new statutory FOIA exemption for information designated ``critical electric infrastructure information'' by the Commission or the Department of Energy.\86\ Concurrently with the issuance of this Final Rule, the Commission is issuing a Notice of Proposed Rulemaking proposing to amend the Commission's regulations to implement the provisions of the FAST Act pertaining to the designation, protection and sharing of critical electric infrastructure information, and proposing to amend its existing regulations pertaining to CEII.\87\ --------------------------------------------------------------------------- \85\ See Fixing America's Surface Transportation (FAST Act), Public Law 114-94, 61003, 129 Stat. 1312 (2015). \86\ FPA section 215A(a)(3) defines critical electric infrastructure information as ``information related to critical electric infrastructure, or proposed critical electrical infrastructure, generated by or provided to the Commission or other Federal agency, other than classified national security information, that is designated as critical electric infrastructure by the Commission or the Secretary pursuant to subsection (d). Such term includes information that qualifies as critical energy infrastructure information under the Commission's regulations.'' Id. \87\ Regulations Implementing FAST Act Section 61003--Critical Electric Infrastructure Security and Amending Critical Energy Infrastructure Information, 155 FERC ] 61,278 (2016). --------------------------------------------------------------------------- 46. We determine that the Commission's expanded authority to safeguard sensitive information adequately addresses the concerns raised in the comments regarding confidentiality. By deferring Commission access to the databases until issuance of a final rule implementing the new ``critical electric infrastructure information'' protection, we will ensure that the Commission has the full authority of that law at its disposal to protect against the improper disclosure of ``critical electric infrastructure information'' contained in the databases.\88\ We also believe that this proposal strikes an appropriate balance between the Commission's need to access potentially sensitive information, and the need to protect that information against improper disclosure.\89\ --------------------------------------------------------------------------- \88\ In deferring the effectiveness of this Final Rule, the Commission is not making a determination that any particular information in the databases is, in fact, ``critical electric infrastructure information.'' \89\ During the intervening period between issuance of this Final Rule and the Final Rule becoming effective, Commission staff will work with NERC to address any technical, procedural, or confidentiality issues to ensure that Commission staff can promptly access the databases upon the Final Rule becoming effective. --------------------------------------------------------------------------- 47. Moreover, whatever potential risks might remain regarding the dissemination of GADS, TADS, and protection system misoperations database data do not, in our view, outweigh the need for Commission access to carry out our statutory responsibilities under FPA section 215. Since passage of the EPAct in 2005, the Commission has generally had to rely on aggregated and summarized data in its assessments of the state of reliability and of the efficacy of current Reliability Standards. Based on that experience, the Commission has determined that such aggregated and summarized data do not allow the Commission to perform the reliability analyses necessary to accomplish the purposes of this rule. 2. NERC Alternative Proposal To Provide Anonymized Data NOPR 48. Under the Commission's proposed regulation, NERC would be required to provide the Commission access to the mandatory TADS, GADS, and protection system misoperations databases regarding U.S. facilities, on a non-public and on-going basis as soon as the proposed regulation becomes effective. Comments 49. NERC proposes a two-phase alternative approach to avoid a number of the concerns NERC and the industry have with the NOPR proposal. In the first phase, NERC would provide anonymized data to the Commission ``within 90 days of the Commission's order on the NOPR.'' \90\ In the second phase, ``NERC staff would work collaboratively with Commission staff through an Information Sharing Working Group to develop NERC-managed tools to provide Commission staff access to anonymized versions of TADS, GADS, and protection system misoperations databases.'' \91\ NERC proposes that the Commission access GADS data through NERC's existing ``pc-GAR'' product, which ``provides users with access to anonymized reliability information from the over 5,000 generating units reporting under GADS, and allows users to select from hundreds of data combinations,'' and provides users the ability to generate reports based on region, generator type, and fuel type.\92\ NERC proposes to give the Commission access to pc-GAR and to develop ``similar tools'' for TADS and protection system misoperations data.\93\ --------------------------------------------------------------------------- \90\ NERC Comments at 4. \91\ Id. at 4-5. \92\ Id. at 11. The pc-GAR is a family of products that provides the automated personal computer (pc-) version of NERC's Generating Availability Report (GAR). See http://www.nerc.com/pa/RAPA/gads/Pages/pc-GAR.aspx. \93\ Id. --------------------------------------------------------------------------- 50. Several industry commenters support NERC's alternative approach, including CEA, KCP&L, NWPPA, and WECC.\94\ While the Public Power Associations also support NERC's alternative proposal, they recommend that the Commission adopt NERC's alternative approach as an intermediate step, and then revisit the effectiveness of NERC's approach after a reasonable period for testing the efficacy of using the anonymized data (e.g., after one or two years). --------------------------------------------------------------------------- \94\ See, e.g., CEA Comments at 15, WECC Comments at 2. --------------------------------------------------------------------------- 51. Resilient Societies opposes NERC's proposed alternative approach because it contends that ``[o]nly by knowing the location of TADS and GADS events, and by cross-referencing to network configuration, will analysts at FERC be able to fully understand reasons for equipment failure, system misoperations, or grid outages.'' \95\ --------------------------------------------------------------------------- \95\ Resilient Societies Comments at 2. --------------------------------------------------------------------------- Commission Determination 52. We are not persuaded that the anonymized data, in the form offered by NERC, would provide the Commission with sufficiently useable information to achieve its objectives as stated in the NOPR. Were NERC to fully anonymize the databases, it would have to mask not only fields that directly identify entities (i.e., entity name and/or NERC Compliance Registry (NCR) number), but would also have to mask every field that could contain information which could allow identification of a particular entity (e.g., where the location or characteristics of a particular facility could lead to identification of the reporting entity). While we agree that the ``attributable'' information in these data fields is sensitive and could be entitled to non-public treatment by the Commission (as discussed above in Section II.B.2), we believe that masking all fields which may contain such data before providing it to the Commission would severely constrain the value of [[Page 45006]] the Commission's access to the databases. This masking would likely preclude Commission access to information such as the affected facility names and locations, affected equipment names, which generation or transmission facilities were tripped as a result of a misoperation, the event description, and the corrective actions taken following a misoperation. 53. The masking of such information would limit the Commission's ability, inter alia, to identify reliability problems in specific geographic areas, or for specific failure modes or types of equipment. The accessible information would only allow the Commission to achieve a broad and generalized understanding of Bulk-Power System risks, and not the more detailed and meaningful analysis that the Commission seeks. 54. In addition, masking of information used to locate or identify outages of specific transmission or generation facilities would limit the Commission's ability to identify affected regional or sub-regional vulnerabilities, and accordingly limit its ability to make recommendations regarding the efficacy of existing regional Reliability Standards or the need for new or modified regional Reliability Standards. This aggregation or masking of information would also limit the Commission's ability to understand the causes of cascading failures where multiple outages occur in sequence and in close proximity or match the databases with other sources of information such as disturbance reporting data currently provided by NERC. For all of these reasons, we find that anonymized data taken from the databases would not allow the Commission to achieve the objectives set out in the NOPR. Accordingly, we find NERC's proposal not to be a viable alternative to the NOPR proposal. III. Information Collection Statement 55. The following collection of information contained in this Final Rule is subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA).\96\ OMB's regulations require approval of certain information collection requirements imposed by agency rules.\97\ Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to this collection of information unless the collection of information displays a valid OMB control number. --------------------------------------------------------------------------- \96\ 44 U.S.C. 3507(d). \97\ 5 CFR 1320.11. --------------------------------------------------------------------------- NOPR 56. In the NOPR, the Commission explained that the proposed regulation would make TADS, GADS, and protection system misoperations data regarding U.S. facilities, currently collected by NERC, available to the Commission and its staff on a non-public and ongoing basis. The Commission stated that the new regulation would not require NERC to collect new information, compile information into any kind of report, or reformulate its raw data. The Commission also stated its belief that it could be relatively straightforward for NERC to provide the Commission, and Commission staff, with access to TADS, GADS, and protection systems misoperations data, and noted that various entities currently have access to these data via an existing web interface. Accordingly, the Commission estimated that the one-time burden associated with compliance with the proposed rule would be de minimis, and would be limited to NERC reviewing the Commission's proposed regulation and providing the Commission and its staff with access to the existing TADS, GADS, and protection system misoperations databases. 57. The Commission solicited comments on the need for the required information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. Specifically, the Commission asked that any revised burden or cost estimates submitted by commenters be supported by sufficient detail to understand how the estimates are generated. Comments 58. The Trade Associations argue that the Commission's burden estimate as stated in the NOPR is deficient because it overlooks the burden on users, owner, and operators of the Bulk-Power System of providing the underlying data to NERC.\98\ The Trade Associations maintain that by ignoring the burdens imposed as a result of NERC's underlying data collection, the Commission is effectively avoiding scrutiny by OMB. In addition, the Trade Associations assert that the information-collecting activities associated with the new regulation are not covered under OMB's FERC-725 collection authorization because they do not relate to operational information collected from Regional Entities. Accordingly, the Trade Associations argue that a new OMB information collection authorization is required. --------------------------------------------------------------------------- \98\ Trade Associations Comments at 17. --------------------------------------------------------------------------- Commission Determination 59. For the reasons discussed below, the Commission adopts the Information Collection Statement included in the NOPR (i.e., the Commission estimates that there will be a de minimis burden associated with the information collection requirements under the new regulation). Essentially, the only burden the new regulation imposes will be on NERC, and the only action required is for NERC to provide access to its existing TADS, GADS, and protection misoperation databases. While NERC may have to develop limited screens to ensure that information related to non-U.S. facilities or information voluntarily provided has been excluded, we understand that NERC currently has the capability to provide access to certain data within its databases while screening other data or data fields (similar to the access NERC provides using its pc-GAR product). 60. With respect to the Trade Associations' assertion that the NOPR's Information Collection analysis overlooks the burden imposed on registered entities by NERC's underlying reporting requirements, we do not agree that the Paperwork Reduction Act requires an examination of underlying information collection burdens that exist independent of the proposed regulation. In this case, the burden on the entities required to report data on U.S. facilities to NERC is already in place and remains mandatory and unchanged regardless of whether the Commission adopts the regulation or not. 61. Furthermore, contrary to the Trade Associations' assertions, OMB has reviewed the information collection burden associated with the underlying obligation on users, owners, and operators of the Bulk-Power System to report misoperations data to NERC. In approving earlier versions of the Reliability Standard that first imposed such a reporting obligation (i.e., PRC-004), the Commission took into account the estimated burden imposed on registered entities to report the misoperations data to NERC.\99\ The [[Page 45007]] underlying misoperations reporting obligation was subsequently removed from Reliability Standard PRC-004-2.1 and moved into a separate data request pursuant to Section 1600 of NERC's Rules of Procedure. However, the underlying reporting burden to NERC was still reflected in the OMB burden estimate,\100\ and is currently included in the FERC-725 information collection (OMB Control No. 1902-0255, recently approved by OMB on February 26, 2016). --------------------------------------------------------------------------- \99\ See NERC Reliability Standard PRC-004-2a (unchanged in Order No. 785 in RM12-16) and for PRC-004-2.1a (which replaced Reliability Standard PRC-004-2a), covered under FERC-725A (OMB Control No. 1902-0244); Reliability Standard PRC-004-2.1(i)a in Docket No. RM12-16, covered by FERC-725M (OMB Control No. 1902- 0263); Reliability Standard PRC-004-3 (in Docket No. RD14-14), covered by FERC-725G1 (OMB Control No. 1902-0284); and Reliability Standard PRC-004-4 (in Docket No. RD15-3) (submitted to OMB for information only). \100\ See North American Electric Reliability Corp., 151 FERC ] 61,129, at P 22 (2015). --------------------------------------------------------------------------- 62. Finally, the Trade Associations are incorrect with respect to the scope of existing FERC-725 (Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards), which covers the ERO's obligation to provide data to the Commission. FERC-725 includes information required by the Commission to implement the statutory provisions of section 215 of the FPA, and includes the burden, reporting and recordkeeping requirements associated with: (a) Self Assessment and ERO Application, (b) Reliability Assessments, (c) Reliability Standards Development, (d) Reliability Compliance, (e) Stakeholder Survey, and (f) Other Reporting. 63. As a result, this Final Rule will be submitted to OMB for review and approval as a ``no material or nonsubstantive change to a currently approved collection.'' Title: FERC-725, Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards. Action: Revision of currently approved collection of information. OMB Control No.: 1902-0225. Respondents for this Rulemaking: Electric Reliability Organization. Frequency of Information: Initial implementation by the ERO to provide Commission access to TADS, GADS, and misoperations databases. Internal review: The Commission has reviewed the proposed regulation and has determined that the proposed regulation is necessary to ensure the reliability and integrity of the nation's Bulk-Power System. 64. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873]. 65. Comments concerning the information collections approved in this Final Rule and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-0710, fax: (202) 395-7285]. For security reasons, comments should be sent by email to OMB at the following email address: [email protected]. Please reference the docket number of this Final Rule (Docket No. RM15-25-000) and OMB Control No. 1902-0225 in your submission. IV. Environmental Analysis 66. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.\101\ The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.\102\ The actions here fall within this categorical exclusion in the Commission's regulations. --------------------------------------------------------------------------- \101\ Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ] 30,783 (1987). \102\ 18 CFR 380.4(a)(2)(ii). --------------------------------------------------------------------------- V. Regulatory Flexibility Act 67. The Regulatory Flexibility Act of 1980 (RFA) \103\ generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Small Business Administration (SBA) revised its size standard (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees, including affiliates.\104\ --------------------------------------------------------------------------- \103\ 5 U.S.C. 601-612. \104\ SBA Final Rule on ``Small Business Size Standards: Utilities,'' 78 FR 77,343 (Dec. 23, 2013). --------------------------------------------------------------------------- 68. The Commission is amending its regulations to require only the ERO (i.e., NERC) to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to the existing TADS, GADS, and protections system misoperations databases. As discussed above, we estimate that the costs to the ERO associated with this Final Rule will be de minimis. Accordingly, the Commission certifies that the new regulation will not have a significant economic impact on a substantial number of small entities, and no regulatory flexibility analysis is required. VI. Document Availability 69. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426. 70. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 71. User assistance is available for eLibrary and the Commission Web site during normal business hours from FERC Online Support at 202- 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502- 8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]. VII. Effective Date and Congressional Notification 72. These regulations are effective July 12, 2016. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a ``major rule'' as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. The Commission will submit the Final Rule to both houses of Congress and to the General Accountability Office. By the Commission. Issued: June 16, 2016. Kimberly D. Bose, Secretary. In consideration of the foregoing, the Commission amends Chapter I, Title 18, [[Page 45008]] part 39 of the Code of Federal Regulations, as follows: PART 39--RULES CONCERNING CERTIFICATION OF THE ELECTRIC RELIABILITY ORGANIZATION; AND PROCEDURES FOR THE ESTABLISHMENT, APPROVAL, AND ENFORCEMENT OF ELECTRIC RELIABILITY STANDARDS 0 1. The authority citation for part 39 continues to read as follows: Authority: 16 U.S.C. 824o. 0 2. Amend Sec. 39.11 to add paragraph (c) as follows: Sec. 39.11 Reliability reports. * * * * * (c) The Electric Reliability Organization shall make available to the Commission, on a non-public and ongoing basis, access to the Transmission Availability Data System, Generator Availability Data System, and protection system misoperations databases, or any successor databases thereto. Such access will be limited to: (1) Data regarding U.S. facilities; and (2) Data that is required to be provided to the ERO. The following appendix will not appear in the Code of Federal Regulations. Appendix Commenters American Public Power Association, Large Public Power Council, and the Transmission Access Policy Study Group (collectively, Public Power Associations) Canadian Electricity Association (CEA) David Jonas Bardin (David Bardin) Edison Electric Institute, Electric Power Supply Association, Electricity Consumers Resource Council, and the National Rural Electric Cooperative Association (collectively, Trade Associations) Foundation for Resilient Societies (Resilient Societies) Kansas City Power & Light Company (KCP&L) North American Electric Reliability Corporation (NERC) Northwest Public Power Association (NWPPA) Rio Tinto Alcan Inc. (RTA) SGS Statistical Services (SGS) Tri-State Generation and Transmission Association, Inc. (Tri-State) Western Electric Coordinating Council (WECC) Western Interconnection Regional Advisory Board (WIRAB) [FR Doc. 2016-14760 Filed 7-11-16; 8:45 am] BILLING CODE 6717-01-P
![44998 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Rules and Regulations
List of Subjects in 14 CFR Part 39 (1) For Model CL–600–2B16 (CL–604 paragraph under 5 U.S.C. 552(a) and 1 CFR
Variant) airplanes, serial numbers 5301 part 51.
Air transportation, Aircraft, Aviation through 5665 inclusive: Section 5–10–40, (2) You must use this service information
safety, Incorporation by reference, Certification Maintenance Requirements, of as applicable to do the actions required by
Safety. Part 2, Airworthiness Limitations, of the this AD, unless this AD specifies otherwise.
Bombardier Challenger 604 Time Limits/ (i) Section 5–10–40, Certification
Adoption of the Amendment Maintenance Checks Manual, Revision 22, Maintenance Requirements, of Part 2,
Accordingly, under the authority dated July 11, 2014. Airworthiness Limitations, of the Bombardier
delegated to me by the Administrator, (2) For Model CL–600–2B16 (CL–604 Challenger 604 Time Limits/Maintenance
the FAA amends 14 CFR part 39 as Variant) airplanes, serial numbers 5701 Checks Manual, Revision 22, dated July 11,
follows: through 5962 inclusive: Section 5–10–40, 2014.
Certification Maintenance Requirements, of (ii) Section 5–10–40, Certification
PART 39—AIRWORTHINESS Part 2, Airworthiness Limitations, of the Maintenance Requirements, of Part 2,
Bombardier Challenger 605 Time Limits/ Airworthiness Limitations, of the Bombardier
DIRECTIVES Maintenance Checks Manual, Revision 10, Challenger 605 Time Limits/Maintenance
dated July 11, 2014. Checks Manual, Revision 10, dated July 11,
■ 1. The authority citation for part 39
continues to read as follows: (h) No Alternative Actions or Intervals 2014.
(3) For service information identified in
Authority: 49 U.S.C. 106(g), 40113, 44701. After the maintenance or inspection this AD, contact Bombardier, Inc., 400 Côte-
program has been revised, as required by Vertu Road West, Dorval, Québec H4S 1Y9,
§ 39.13 [Amended] paragraph (g) of this AD, no alternative Canada; Widebody Customer Response
■ 2. The FAA amends § 39.13 by adding actions (e.g., inspections) or intervals may be Center, toll-free telephone 1–866–538–1247,
used unless the actions or intervals are or direct dial telephone 1–514–855–2999; fax
the following new airworthiness approved as an alternative method of
directive (AD): 1–514–855–7401; email ac.yul@
compliance (AMOC) in accordance with the aero.bombardier.com; Internet http://
2016–13–09 Bombardier, Inc.: Amendment procedures specified in paragraph (i)(1) of www.bombardier.com.
39–18573. Docket No. FAA–2015–8129; this AD. (4) You may view this service information
Directorate Identifier 2014–NM–197–AD. at the FAA, Transport Airplane Directorate,
(i) Other FAA AD Provisions
(a) Effective Date 1601 Lind Avenue SW., Renton, WA. For
The following provisions also apply to this
information on the availability of this
This AD becomes effective August 16, AD:
material at the FAA, call 425–227–1221.
2016. (1) Alternative Methods of Compliance
(5) You may view this service information
(AMOCs): The Manager, New York Aircraft
(b) Affected ADs that is incorporated by reference at the
Certification Office (ACO), ANE–170, FAA,
None. has the authority to approve AMOCs for this National Archives and Records
AD, if requested using the procedures found Administration (NARA). For information on
(c) Applicability in 14 CFR 39.19. In accordance with 14 CFR the availability of this material at NARA, call
This AD applies to Bombardier, Inc. Model 39.19, send your request to your principal 202–741–6030, or go to: http://
CL–600–2B16 (CL–604 Variant) airplanes, inspector or local Flight Standards District www.archives.gov/federal-register/cfr/ibr-
certificated in any category, serial numbers Office, as appropriate. If sending information locations.html.
(S/Ns) 5301 through 5665 inclusive, and directly to the ACO, send it to ATTN: Issued in Renton, Washington, on June 21,
5701 through 5962 inclusive. Program Manager, Continuing Operational 2016.
Safety, FAA, New York ACO, 1600 Stewart Dorr M. Anderson,
(d) Subject
Avenue, Suite 410, Westbury, NY 11590;
Air Transport Association (ATA) of telephone 516–228–7300; fax 516–794–5531. Acting Manager, Transport Airplane
America Code 27, Flight Controls. Before using any approved AMOC, notify Directorate, Aircraft Certification Service.
your appropriate principal inspector, or [FR Doc. 2016–15354 Filed 7–11–16; 8:45 am]
(e) Reason
lacking a principal inspector, the manager of BILLING CODE 4910–13–P
This AD was prompted by a determination the local flight standards district office/
that certain maintenance tasks for the certificate holding district office. The AMOC
horizontal stabilizer trim actuator (HSTA) are approval letter must specifically reference
inadequate. We are issuing this AD to detect this AD. DEPARTMENT OF ENERGY
and correct premature wear and cracking of (2) Contacting the Manufacturer: For any
the HSTA, which could result in failure of requirement in this AD to obtain corrective Federal Energy Regulatory
the HSTA and consequent loss of control of actions from a manufacturer, the action must Commission
the airplane. be accomplished using a method approved
(f) Compliance by the Manager, New York ACO, ANE–170, 18 CFR Part 39
FAA; or Transport Canada Civil Aviation
Comply with this AD within the (TCCA); or Bombardier, Inc.’s TCCA Design [Docket No. RM15–25–000; Order No. 824]
compliance times specified, unless already Approval Organization (DAO). If approved by
done. the DAO, the approval must include the Availability of Certain North American
DAO-authorized signature. Electric Reliability Corporation
(g) Maintenance or Inspection Program
Databases to the Commission
Revision (j) Related Information
Within 30 days after the effective date of Refer to Mandatory Continuing AGENCY: Federal Energy Regulatory
this AD: Revise the maintenance or Airworthiness Information (MCAI) Canadian Commission, Department of Energy.
inspection program, as applicable, to Airworthiness Directive CF–2014–30, dated ACTION: Final rule.
incorporate Task 27–42–01–109, Restoration September 5, 2014, for related information.
(Overhaul) of the Horizontal Stabilizer Trim This MCAI may be found in the AD docket SUMMARY: The Federal Energy
mstockstill on DSK3G9T082PROD with RULES
Actuator, Part No. 604–92305–7 and Subs on the Internet at http://www.regulations.gov Regulatory Commission (Commission)
(Vendor Part No. 8454–3 and Subs); and Task by searching for and locating Docket No. amends its regulations to require the
27–42–01–111, Detailed Inspection of the FAA–2015–8129.
Horizontal Trim Actuator (HSTA) Secondary North American Electric Reliability
Load Path Indicator, Part No. 604–92305–7 (k) Material Incorporated by Reference Corporation (NERC) to provide the
and Subs (Vendor Part No. 8454–3 and Subs); (1) The Director of the Federal Register Commission, and Commission staff,
of the applicable document identified in approved the incorporation by reference with access, on a non-public and
paragraph (g)(1) or (g)(2) of this AD. (IBR) of the service information listed in this ongoing basis, to certain databases
VerDate Sep<11>2014 17:56 Jul 11, 2016 Jkt 238001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\12JYR1.SGM 12JYR1](https://thefederalregister.org/doc/81_FR_45131/page/1.svg)
![Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Rules and Regulations 45001
information for each NERC Region in databases; (B) information voluntarily NERC’s TADS, GADS, and protection
annual public state of reliability reports, provided; (C) confidential information; system misoperations databases.47
with the underlying data being accorded (D) NERC’s alternative proposal; and (E) Resilient Societies supports the
confidential treatment.39 information collection. Commission’s proposed access to the
NERC data ‘‘because NERC has not
C. NOPR A. Authority To Require and Need for
performed, or not disclosed data
15. On September 17, 2015, the Commission Access to NERC Databases
analysis when the results might not be
Commission issued a Notice of NOPR consistent with the interest of NERC’s
Proposed Rulemaking (NOPR) 18. In the NOPR, the Commission industry members in avoiding or
proposing to amend the Commission’s stated that its proposed access to the minimizing regulation.’’ 48
regulations to require NERC to provide TADS, GADS and protection system 21. All other commenters, including
the Commission, and Commission staff, misoperations databases regarding U.S. NERC,49 the Trade Associations, and the
with access, on a non-public and facilities was ‘‘necessary to carry out the Public Power Associations oppose the
ongoing basis, to the TADS, GADS, and Commission’s statutory authority: (1) To Commission’s proposed regulation
protection system misoperations evaluate the need to direct new or requiring NERC to provide the
databases regarding U.S. facilities.40 In modified Reliability Standards under Commission access to NERC’s TADS,
response to the NOPR, the Commission section 215(d) of the FPA; and (2) to GADS, and protection system
received 13 sets of comments.41 We better understand NERC’s periodic misoperations databases.
address below the issues raised in the 22. The Trade Associations maintain
assessments and reports . . . regarding
NOPR and comments. that the Commission does not need
the reliability and adequacy of the Bulk-
access to these NERC databases to fulfill
II. Discussion Power System under section 215(g) of
its obligations under FPA section 215,
the FPA.’’ 42 The Commission first
16. Pursuant to section 215 of the and that the Commission has multiple
explained that access to the databases
FPA, we amend the Commission’s processes it can use to achieve its stated
would inform it ‘‘more quickly, directly
regulations to require NERC to provide goals, including events analysis,
and comprehensively about reliability
the Commission, and Commission staff, reviewing patterns and trends in
trends or reliability gaps that might
with access (i.e., view and download compliance and enforcement,
require the Commission to direct the
data), on an ongoing and non-public coordination with NERC’s technical
ERO to develop new or modified
basis, to the TADS, GADS, and committees, evaluating NERC’s periodic
Reliability Standards,’’ responsibility
protection system misoperations and special reliability assessments,
which falls not only to the ERO but also
databases. As proposed in the NOPR periodic review of individual standards,
to the Commission under FPA section
and clarified in the language of the new and discussions on emerging issues at
215(d).43 The Commission noted that
regulation, the Commission’s access will technical conferences and workshops.50
each of the three databases could
be limited to data regarding U.S. The Trade Associations argue that these
provide important information
facilities. In addition, as discussed processes are sufficient to allow the
regarding the need for new or modified
further below, the Commission Commission to obtain information
Reliability Standards and for assessing
determines that NERC is not required to needed to perform its functions
Bulk-Power System reliability, as NERC
provide the Commission with access to ‘‘without accessing the highly-sensitive,
had itself recognized when justifying
data provided to NERC on a voluntary facility-specific raw data contained in
the need for mandatory reporting (to
basis. the databases.’’ 51
NERC) of TADS, GADS, and protection
17. As discussed below, the The Trade Associations assert that
system misoperation data.44 ‘‘access to the raw data contained in the
Commission believes that access to 19. Second, the Commission
these three NERC databases is necessary databases without NERC and industry
explained in the NOPR that access to
to carry out the Commission’s analysis will not directly achieve the
the data would ‘‘assist the Commission
obligations under section 215 of the Commission’s goals of identifying gaps
with its understanding of the reliability
FPA. Further, as discussed in Section in Reliability Standards and in
and adequacy assessments periodically
II.B.1 below, we believe that if access is understanding NERC assessments
submitted by NERC pursuant to section
limited to data mandatorily provided, because in and of itself the raw data,
215(g) of the FPA.’’ 45 The Commission
Commission access to the TADS, GADS, without context or NERC technical
further stated that having direct access analysis, does not shed light on these
and protection system misoperations to the underlying data used in aggregate
databases will not result in a reduction form in NERC’s reliability reports would 47 WIRAB supports the NOPR as a whole.
in the level or quality of information ‘‘help[ ] the Commission to monitor Resilient Societies, David Bardin, and SGS support
that users, owners and operators of the causes of outages and detect emerging greater access to NERC data, including access by the
Bulk-Power System share with NERC reliability issues.’’ 46 Commission, but Resilient Societies and David
and the Regional Entities, and will not Bardin question the need to keep the data non-
Comments public, as discussed further in Section II.B.2, infra.
otherwise result in a so-called chilling 48 Resilient Societies Comments at 2.
effect on NERC’s data-gathering efforts. 20. Four commenters generally 49 While NERC recognizes the Commission’s
We also discuss the following matters support, or do not oppose, the objective of obtaining data needed to fulfill its
below: (A) Authority to require and Commission’s proposal to access oversight responsibilities, NERC asks the
need for Commission access to NERC Commission to adopt its alternative proposal,
42 NOPR,
discussed below in Section II.B.3, under which
152 FERC ¶ 61,208 at P 17. NERC would provide the Commission with access
39 See, 43 Id.
P 18.
e.g., State of Reliability 2015 at 45–48. to anonymized TADS, GADS, and protection system
mstockstill on DSK3G9T082PROD with RULES
44 See id. P 19 (quoting NERC’s statements that
40 Availability of Certain North American Electric misoperations data. The Northwest Public Power
Reliability Corporation Databases to the ‘‘TADS data is intended to provide a basis for Association (NWPPA) and Western Electricity
Commission, Notice of Proposed Rulemaking, 80 FR standards’’ and that protection system Coordinating Council (WECC) filed comments in
58,405 (Sept. 29, 2015), 152 FERC ¶ 61,208 (2015) misoperations data is used to ‘‘[i]dentify trends in support of NERC’s comments, including NERC’s
(NOPR). Protection System performance that negatively proposed alternative to provide access to
41 The Appendix to this Final Rule lists the impact reliability.’’) anonymized data.
45 Id. P 20. 50 See Trade Associations Comments at 5, 6–11.
entities that filed comments in response to the
NOPR. 46 Id. 51 Id. at 6–7.
VerDate Sep<11>2014 17:56 Jul 11, 2016 Jkt 238001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\12JYR1.SGM 12JYR1](https://thefederalregister.org/doc/81_FR_45131/page/4.svg)
![45002 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Rules and Regulations
matters.’’ 52 While the Trade by FPA section 215.’’ 57 Similarly, NERC databases does not supplant the role
Associations thus object to any new maintains that the proposed rule would that NERC and its stakeholder process
requirement that NERC provide access ‘‘operate in tension’’ with section 215 of have in the standards development
to these databases, the Trade the FPA and would ‘‘chill industry process.
Associations ask that, if the Commission collaboration with the ERO and 27. We also disagree with assertions
decides to move forward with such a undermine the regulatory framework for that the requirement in section 215(d)(2)
requirement, the Commission issue a reliability.’’ 58 of the FPA that the Commission give
modified proposal to better explain Commission Determination ‘‘due weight to the technical expertise of
‘‘how direct access to the raw data the [ERO] with respect to the content of
collected by NERC in the GADS, TADS, 24. We find that the Commission’s a proposed standard or modification to
and misoperations databases will authority to require access to NERC’s a reliability standard’’ 63 suggests that
support [the Commission’s] needs.’’ 53 TADS, GADS, and protection system the Commission must limit itself to an
Further, the Trade Associations and databases is fully consistent with FPA oversight role in the standards
several other commenters argue that the section 215, and that the NOPR development process, and should
NOPR proposal is not ‘‘consistent’’ with adequately explained why access to that broadly defer to NERC and its
the division of responsibilities between data is necessary for the Commission to stakeholders on matters related to
the ERO and the Commission set forth carry out its obligations under FPA standards development.64 As a
in FPA section 215.54 The Trade section 215.59 threshold matter, the Commission did
Associations assert that ‘‘[t]he 25. First, we disagree with arguments not rely on FPA section 215(d)(2),
assessment of reliability data in these that Commission access to these which addresses the Commission’s
databases is squarely within the role of databases reflects an unwarranted shift authority to approve proposed
the ERO, which ‘conduct[s] periodic in the balance of responsibilities Reliability Standards, as its statutory
assessments of the reliability and between NERC and the Commission basis for proposing the new regulation.
adequacy of the bulk-power system’ ’’ under section 215 of the FPA.60 To the Instead the Commission relied on FPA
and that ‘‘[t]here is no equivalent role contrary, we believe that NERC and section 215(d)(5), which vests the
for the Commission.’’ 55 Similarly, the other industry commenters overstate the Commission with the authority, ‘‘upon
Public Power Associations contend that impact of the NOPR proposal, which its own motion or upon complaint, [to]
the NOPR proposal would impinge on recognized and acknowledged the order the [ERO] to submit to the
the ERO’s statutory authority to develop respective roles of the Commission and Commission a proposed reliability
Reliability Standards, and that the FPA NERC under section 215 of the FPA.61 standard or a modification to a
contemplates that the ERO should be NERC, as the ERO, is responsible for reliability standard that addresses a
the ‘‘principal agent for standards developing reliability standards to specific matter if the Commission
development and the assessment of grid address reliability issues, whether considers such a new or modified
reliability.’’ 56 identified by NERC, its stakeholders, or reliability standard appropriate to carry
23. The Public Power Associations the Commission; the Commission then out this section.’’ 65 Notably, while
point out that the Commission is to give reviews and determines whether to section 215(d)(2) affords ‘‘due weight’’
due weight to the technical expertise of approve those standards. Nothing in the to the technical expertise of the ERO
the ERO under FPA section 215(d)(2) NOPR or this Final Rule proposes to concerning the content of the standard,
and that FPA section 215(g) does not change that structure. neither FPA section 215(d)(2) nor FPA
give the Commission an oversight role 26. Rather, as explained in the NOPR
section 215(d)(5) requires the
in performing periodic assessments of and this Final Rule, the Commission has
Commission to afford ‘‘due weight’’ to
the reliability and adequacy of the Bulk- determined that access to these
the ERO’s selection of which specific
Power System, and express a general databases will aid the Commission’s
matters warrant a Reliability Standard.
concern that the NOPR ‘‘suggests a shift implementation of its statutory
To the contrary, section 215(d)(5)
in the balance of responsibilities authority, under section 215(d)(5) of the
explicitly authorizes the Commission to
between NERC and FERC contemplated FPA, to determine whether to require
direct the ERO to develop new or
NERC to develop new or modified
modified Reliability Standards to
52 Id. at 12–13. See also NERC Comments at 21– reliability standards. As with prior
address a specific matter if the
22 (stating that the proposed regulation ‘‘is not instances in which the Commission
tailored to support the Commission’s objective
Commission deems it ‘‘appropriate’’ to
acted pursuant to this authority,62 NERC
under the NOPR, because it will not enable the carry out section 215 of the FPA.66 We
Commission to place relevant data in context for
and its stakeholder process—not the therefore see no inconsistency between
purposes of completing meaningful analyses of the Commission—would be responsible for affording ‘‘due weight’’ under section
BPS’’ and that ‘‘the Commission would not be able the development of new or modified 215(d)(2) and ensuring the
to place relevant data in context to derive useful standards directed by the Commission.
information, which may result in incorrect or Commission’s ability to effectively
inappropriate conclusions’’ without engaging in a
Therefore, Commission access to these implement its authority under section
collaborative process with NERC. 215(d)(5).
53 Trade Associations Comments at 12. 57 Public Power Associations Comments at 7–8.
54 See e.g., Public Power Associations Comments The Public Power Associations accordingly ‘‘urge 28. Moreover, contrary to several
at 2 (‘‘the NOPR does not appear tailored to the Commission to be mindful of the inefficiencies commenters’ assertions, nothing in FPA
achieving that goal in a manner consistent with and potential confusion that would result from a
[FPA section 215’s] statutory scheme.’’). situation in which NERC and FERC perform the 63 16 U.S.C. 824o(d)(2).
55 Trade Associations Comments at 16 (citing 16 same analytical roles.’’ Id. at 2. 64 E.g., Public Power Associations Comments at
58 NERC Comments at 6.
7–8.
mstockstill on DSK3G9T082PROD with RULES
U.S.C. 824o(g), and quoting Commissioner
59 See NOPR, 152 FERC ¶ 61,208 at PP 17–20.
LaFleur’s concurring statement to the NOPR noting 65 Id.824o(d)(5).
60 E.g., Public Power Associations Comments at
that ‘‘it is important that we recognize the 66 We note that a proposed Reliability Standard
distinction between (the Commission’s) oversight 6–9; Trade Associations Comments at 15–17. submitted for Commission approval in response to
role and NERC’s primary responsibility to monitor 61 NOPR, 152 FERC ¶ 61,208 at P 18.
a directive pursuant to section 215(d)(5) would be
reliability issues and to propose standards to 62 See, e.g., Reliability Standards for Physical reviewed by the Commission pursuant to section
address them.’’) Security Measures, 146 FERC ¶ 61,166 (2014); 215(d)(2) of the FPA. Therefore, the ERO’s technical
56 Public Power Associations Comments at 7; see Reliability Standards for Geomagnetic expertise with respect to the content of the
also NERC Comments at 16–20. Disturbances, 143 FERC ¶ 61,147 (2013). proposed standard would be afforded due weight.
VerDate Sep<11>2014 17:56 Jul 11, 2016 Jkt 238001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\12JYR1.SGM 12JYR1](https://thefederalregister.org/doc/81_FR_45131/page/5.svg)
![Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Rules and Regulations 45003
section 215 states or suggests that the usefulness of the data in question as the Comments
Commission’s authority to direct the Commission gains experience analyzing
development or amendment of those data. Accordingly, we will 33. NERC contends that the NOPR
Reliability Standards is secondary to or continue to assess our need for access to proposal could have a negative impact
otherwise ‘‘duplicative’’ of the ERO’s these NERC databases after we gain on the quality and level of data
authority to develop Reliability adequate experience with this data voluntarily submitted by industry to
Standards on its own. NERC’s authority following implementation of the new NERC (i.e., data that is not currently
to develop Reliability Standards under regulation. required to be submitted to NERC under
FPA section 215(d)(2) and the mandatory NERC data requests or
B. Access to Voluntarily-Provided and
Commission’s authority to direct NERC Reliability Standards). NERC states that
Confidential Information
to develop Reliability Standards under while the NOPR implies that it affects
FPA section 215(d)(5) are independent. 31. NERC and a number of other only data submitted pursuant to
Accordingly, the NOPR proposal does commenters raise concerns about the mandatory data reporting obligations,
not represent a ‘‘shift’’ in impact of the Commission’s access to NERC is concerned that the proposed
responsibilities between the the TADS, GADS, and protection system rule instead implicates both mandatory
Commission and the ERO, and is misoperations databases on the overall and voluntary data. Specifically, NERC
instead part of the necessary input quality of data shared with NERC, states that TADS includes data
required by the Commission to carry out asserting that such access may voluntarily shared ‘‘by non-U.S.
its statutory obligations to determine negatively impact the industry’s Transmission Owners and data
whether to direct the development or provision of voluntary data to NERC, voluntarily shared prior to 2015 on Bulk
modification of a Reliability Standard and that it otherwise raises Electric System transmission elements
under FPA section 215(d)(5).67 confidentiality concerns that may not be under 200 kV.’’ 70 NERC also states that
29. With respect to how the easily addressed. The Trade GADS includes data ‘‘voluntarily
Commission would use the data from Associations and other commenters
provided from generating units with less
the TADS, GADS, and protection system argue that these concerns should
than 20 MW of capacity, data
misoperations databases, including the preclude the Commission’s moving
voluntarily provided prior to 2013 from
Trade Associations’ and others forward with any requirement to
generating units with less than 50 MW
commenters’ contention that access to provide Commission access to the raw
data in the TADS, GADS, and protection of capacity, and data being voluntarily
raw data would not be useful in shared for certain GADS event record
achieving the Commission’s objectives, system misoperation databases, while
NERC and other commenters suggest an fields.’’ 71 NERC further states that the
the Commission did not indicate in the protection system misoperations
NOPR that it would rely exclusively on alternative approach (discussed in
Section II.B.3, below) that would database includes ‘‘voluntary data
such data in assessing the need for currently shared by non-U.S. entities
NERC to develop new or modified provide the Commission with limited
access to the databases while attempting and data shared with Regional Entities
Reliability Standards or to better prior to EPAct 2005.’’ 72 Ultimately,
understand NERC’s reliability to more fully protect confidential or
sensitive information provided to NERC NERC is concerned that the proposed
assessments. Instead, the Commission
by users, owners, and operators of the rule requiring Commission access to
has identified data that would assist in
Bulk-Power System. these databases could ‘‘return both
carrying out FPA section 215, and the
NERC and the Commission to a state
Commission intends to analyze data Information Voluntarily Provided where industry only shares reliability-
from the NERC databases in addition to
NOPR related data in response to mandatory
data from other existing resources (e.g.,
32. In the NOPR, the Commission data requests that provide a narrow
Commission, NERC, and industry
proposed to amend its regulations to window into the web of complex
resources), including disturbance
require NERC to provide the information necessary to ensure
reporting data and event analysis
Commission with access to the TADS, reliability.’’ 73
information, to facilitate the
Commission’s oversight of Bulk-Power GADS and protection system 34. The Public Power Associations
System reliability. With respect to the misoperations databases. The and CEA agree with NERC’s concerns
Trade Associations’ position that the Commission explained that these and add that, if the Commission chooses
Commission has other mechanisms that databases are populated with data to adopt the NOPR proposal, the Final
are adequate to fulfill its oversight collected through mandatory NERC data Rule should clarify that the Commission
obligations, we do not agree that the requests or Reliability Standards and will only use the accessed data for the
Commission’s authority is limited to that the access proposed in the NOPR purposes stated in the NOPR and not for
those mechanisms, particularly where would be limited to U.S. facilities.68 compliance or enforcement purposes.74
we find, as here, that access to the While the NOPR did not explicitly CEA also requests that, if the
additional information included in the address whether the Commission’s Commission moves forward with its
three NERC databases is needed to meet access to information in these databases proposed regulation, it should modify
our statutory obligations under FPA should exclude data voluntarily the language of the regulation to clarify
section 215. provided to NERC (other than
30. We recognize, however, that we information regarding non-U.S. 70 NERC Comments at 8–9.
will be able to better evaluate the facilities), the Commission’s description 71 Id. at 9.
of each database focused on the data 72 Id.
mstockstill on DSK3G9T082PROD with RULES
67 As stated in the NOPR and as previously that is required to be provided to NERC 73 NERC Comments at 33.
explained in Order No. 672, access to relevant and the justifications NERC has offered 74 PublicPower Associations Comments at 11;
information, such as the information to be obtained in making reporting of that data CEA Comments at 10–11 (stating that ‘‘the
through the new regulation, allows the Commission establishment and administration of [the TADS,
to fulfill its statutory obligations under section 215
mandatory.69 GADS, and protection system misoperations]
of the FPA. NOPR, 152 FERC ¶ 61,208 at P 16 databases have not been effectuated with FERC or
68 See NOPR, 152 FERC ¶ 61,208 at PP 5–14, 15.
(citing Order No. 672, FERC Stats. & Regs. ¶ 31,204, other applicable governmental authorities in
at P 114). 69 Id. PP 5–14, 19. mind.’’)
VerDate Sep<11>2014 17:56 Jul 11, 2016 Jkt 238001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\12JYR1.SGM 12JYR1](https://thefederalregister.org/doc/81_FR_45131/page/6.svg)
![45004 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Rules and Regulations
that the Commission’s access to data is GADS, and protection system asserts that the Commission has
limited to data regarding U.S. facilities. misoperation databases. disclosed information in the past that
35. The Trade Associations also agree 39. With respect to requests to limit was eligible for exemption from FOIA,
with NERC’s concerns and, more our use of the data accessed, the including information treated as CEII.79
broadly, argue that the NOPR proposal Commission’s intent in seeking access 42. Similarly, the Trade Associations
could ‘‘chill’’ industry information- to the data is as stated in the NOPR (i.e., maintain that the regulation, if adopted,
sharing with NERC generally. The Trade to assess the potential need for new or ‘‘would create a heightened risk of
Associations state that this chilling modified Reliability Standards and to improper disclosure of the GADS,
effect will be ‘‘more profound’’ if the better understand NERC’s periodic TADS, and misoperations information,
Commission should, in the future, reliability and adequacy assessments). risking harm to the Commission’s
request access to other NERC databases We believe the data will be most useful jurisdictional markets and the security
that rely on voluntary information- for evaluating overall reliability trends of the nation’s bulk-power system.’’ 80
sharing (such as NERC’s Electricity and identifying specific reliability The Trade Associations describe the
Information Sharing and Analysis concerns. For example, the data could potential harm that could result from
Center), or if the databases ‘‘are used for provide insight into chronic or recurring disclosure of the TADS, GADS, and
non-reliability purposes, such as system deficiencies, provide a basis for misoperations data, and maintain that
economic policy and enforcement comparison of the reliability benefits of the heightened risk of disclosure stems
purposes.’’ 75 different kinds of equipment or system not only from the potential for release
configurations, or be used to assess the through a FOIA request, but also from
Commission Determination
effectiveness of reliability efforts across the unintentional release of data
36. In the NOPR, the Commission NERC, Regional Entities and industry. through security breaches.81 As
expressly proposed to exclude from the However, the Commission is not examples, the Trade Associations state
database access requirement precluded from using the accessed data that data accessed by the Commission
information concerning non-U.S. for other statutory purposes. could be accidentally disseminated
facilities, and we will maintain that through ‘‘misplaced hard drives or
exclusion in the regulation as adopted. 1. Confidentiality
laptops, inadvertently directed emails,
The Commission agrees with CEA that NOPR or incorrectly granted information
this exclusion can be clarified through 40. In the NOPR, the Commission access,’’ and assert that ‘‘the risk of
a modification to the language of the recognized that its proposal to access information loss also increases with the
proposed regulation, and we, data in the TADS, GADS, and protection number of individuals and
accordingly, add a new sentence to the system misoperations databases ‘‘might organizations accessing and holding the
end of the regulation to clarify that raise confidentiality issues,’’ and stated data.’’ 82
Commission access will be limited to that if the collected data include 43. Resilient Societies, by contrast,
data regarding U.S. facilities. confidential information it would ‘‘take
37. In addition, while the NOPR did objects to the NOPR’s proposal to
appropriate steps, as provided for in our preserve the confidentiality of the
not explicitly state that the
governing statutes and regulations, in accessed data, raising a concern that the
Commission’s access to data would be
handling such information.’’ 76 Commission might be restricted ‘‘from
limited to data provided to NERC as part
of a mandatory data request or other Comments analyzing the NERC data and then using
NERC requirement, the Commission conclusions developed thereby to
41. NERC and industry commenters support rulemaking or other public
believes that it can achieve its objectives identify maintaining the confidentiality
as stated in the NOPR with access to policy actions.’’ 83 Resilient Societies
of TADS, GADS, and protection system accordingly requests that the
mandatorily-provided data only. misoperations data accessed by the
Adopting this approach should mitigate Commission adopt the NOPR with
Commission as a major concern with the ‘‘appropriate additional provisions to
NERC’s and other commenters’ concerns NOPR proposal. NERC contends that
regarding the impact of the proposed allow public disclosure of modeling
treating such data as confidential is parameters and other conclusions
regulation on the level and quality of appropriate because ‘‘the detailed data
voluntary information-sharing with developed from the TADS and GADS
implicated by the NOPR could be data.’’ 84
NERC and the Regional Entities. misused to target vulnerabilities in the
Because the Commission will only be [Bulk-Power System].’’ 77 NERC Commission Determination
accessing data that entities are required maintains that while ‘‘data implicated 44. It is clear from the record that
to provide to NERC, there should be no by the NOPR would normally be eligible maintaining the confidentiality of data
impact on an entity’s willingness to for exemption from [the Freedom of included in the TADS, GADS, and
share additional, voluntary information. Information Act (FOIA)] disclosure as protection system operations databases
38. While NERC maintains that commercial information or sensitive is a significant concern to NERC and the
entities may be hesitant to provide information in light of security interests, entities that provide information to
voluntary information to NERC or the and protected as Confidential these databases. The Commission
Regional Entities because the Information or [Critical Energy recognizes that information contained in
Commission could seek to access that Infrastructure Information (CEII)] under the TADS, GADS, and protection system
information in the future, we do not Commission regulation, eligibility for misoperation databases may be
find these arguments to be persuasive, exemption from disclosure under FOIA sensitive, and that such information
particularly in light of the Commission’s only partially mitigates risk to may qualify as CEII under the
mstockstill on DSK3G9T082PROD with RULES
decision to exclude voluntarily- confidentiality,’’ in part because the
provided information from the scope of Commission has discretion whether to 79 Id. at 28.
the Final Rule. Moreover, we find that invoke such an exemption.78 NERC also 80 Trade Associations Comments at 18–19.
these concerns do not override our need 81 Id. at 20–21.
for the data contained in NERC’s TADS, 76 NOPR, 152 FERC ¶ 61,208 at P 22. 82 Id. at 21.
77 NERC Comments at 10. 83 Resilient Societies Comments at 2.
75 Trade Associations Comments at 26. 78 Id. at 27–28. 84 Id. at 3.
VerDate Sep<11>2014 17:56 Jul 11, 2016 Jkt 238001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\12JYR1.SGM 12JYR1](https://thefederalregister.org/doc/81_FR_45131/page/7.svg)
![Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Rules and Regulations 45005
Commission’s regulations. As discussed this proposal strikes an appropriate users with access to anonymized
below, and to address these concerns, balance between the Commission’s need reliability information from the over
we will defer the effectiveness of this to access potentially sensitive 5,000 generating units reporting under
Final Rule until the Commission issues information, and the need to protect that GADS, and allows users to select from
a final rule adopting regulations to information against improper hundreds of data combinations,’’ and
implement its recently-expanded disclosure.89 provides users the ability to generate
authority to protect against the 47. Moreover, whatever potential risks reports based on region, generator type,
disclosure of ‘‘critical electric might remain regarding the and fuel type.92 NERC proposes to give
infrastructure information.’’ dissemination of GADS, TADS, and the Commission access to pc-GAR and
45. As stated in the NOPR, the protection system misoperations to develop ‘‘similar tools’’ for TADS and
Commission commits that we will take database data do not, in our view, protection system misoperations data.93
appropriate steps in handling such outweigh the need for Commission 50. Several industry commenters
information, in accordance with our access to carry out our statutory support NERC’s alternative approach,
governing statutes and regulations. responsibilities under FPA section 215. including CEA, KCP&L, NWPPA, and
Subsequent to the issuance of the Since passage of the EPAct in 2005, the WECC.94 While the Public Power
NOPR, the Commission’s authority to Commission has generally had to rely Associations also support NERC’s
safeguard sensitive information has on aggregated and summarized data in alternative proposal, they recommend
been enhanced through the recent its assessments of the state of reliability that the Commission adopt NERC’s
enactment of FPA section 215A.85 FPA and of the efficacy of current Reliability alternative approach as an intermediate
section 215A creates a new statutory Standards. Based on that experience, the step, and then revisit the effectiveness
FOIA exemption for information Commission has determined that such of NERC’s approach after a reasonable
designated ‘‘critical electric aggregated and summarized data do not period for testing the efficacy of using
infrastructure information’’ by the allow the Commission to perform the the anonymized data (e.g., after one or
Commission or the Department of reliability analyses necessary to two years).
Energy.86 Concurrently with the accomplish the purposes of this rule. 51. Resilient Societies opposes
issuance of this Final Rule, the NERC’s proposed alternative approach
Commission is issuing a Notice of 2. NERC Alternative Proposal To because it contends that ‘‘[o]nly by
Proposed Rulemaking proposing to Provide Anonymized Data knowing the location of TADS and
amend the Commission’s regulations to NOPR GADS events, and by cross-referencing
implement the provisions of the FAST to network configuration, will analysts
48. Under the Commission’s proposed
Act pertaining to the designation, at FERC be able to fully understand
regulation, NERC would be required to
protection and sharing of critical reasons for equipment failure, system
provide the Commission access to the
electric infrastructure information, and misoperations, or grid outages.’’ 95
mandatory TADS, GADS, and protection
proposing to amend its existing
system misoperations databases Commission Determination
regulations pertaining to CEII.87
46. We determine that the regarding U.S. facilities, on a non-public 52. We are not persuaded that the
Commission’s expanded authority to and on-going basis as soon as the anonymized data, in the form offered by
safeguard sensitive information proposed regulation becomes effective. NERC, would provide the Commission
adequately addresses the concerns Comments with sufficiently useable information to
raised in the comments regarding achieve its objectives as stated in the
49. NERC proposes a two-phase
confidentiality. By deferring NOPR. Were NERC to fully anonymize
alternative approach to avoid a number
Commission access to the databases the databases, it would have to mask not
of the concerns NERC and the industry
until issuance of a final rule only fields that directly identify entities
have with the NOPR proposal. In the
implementing the new ‘‘critical electric (i.e., entity name and/or NERC
first phase, NERC would provide
infrastructure information’’ protection, Compliance Registry (NCR) number),
anonymized data to the Commission
we will ensure that the Commission has but would also have to mask every field
‘‘within 90 days of the Commission’s
the full authority of that law at its that could contain information which
disposal to protect against the improper order on the NOPR.’’ 90 In the second
phase, ‘‘NERC staff would work could allow identification of a particular
disclosure of ‘‘critical electric entity (e.g., where the location or
infrastructure information’’ contained in collaboratively with Commission staff
through an Information Sharing characteristics of a particular facility
the databases.88 We also believe that could lead to identification of the
Working Group to develop NERC-
managed tools to provide Commission reporting entity). While we agree that
85 See Fixing America’s Surface Transportation
staff access to anonymized versions of the ‘‘attributable’’ information in these
(FAST Act), Public Law 114–94, 61003, 129 Stat.
1312 (2015). TADS, GADS, and protection system data fields is sensitive and could be
86 FPA section 215A(a)(3) defines critical electric
misoperations databases.’’ 91 NERC entitled to non-public treatment by the
infrastructure information as ‘‘information related
proposes that the Commission access Commission (as discussed above in
to critical electric infrastructure, or proposed Section II.B.2), we believe that masking
critical electrical infrastructure, generated by or GADS data through NERC’s existing
provided to the Commission or other Federal ‘‘pc-GAR’’ product, which ‘‘provides all fields which may contain such data
agency, other than classified national security before providing it to the Commission
information, that is designated as critical electric
any particular information in the databases is, in would severely constrain the value of
infrastructure by the Commission or the Secretary
pursuant to subsection (d). Such term includes fact, ‘‘critical electric infrastructure information.’’
89 During the intervening period between 92 Id. at 11. The pc-GAR is a family of products
mstockstill on DSK3G9T082PROD with RULES
information that qualifies as critical energy
infrastructure information under the Commission’s issuance of this Final Rule and the Final Rule that provides the automated personal computer
regulations.’’ Id. becoming effective, Commission staff will work (pc-) version of NERC’s Generating Availability
87 Regulations Implementing FAST Act Section with NERC to address any technical, procedural, or Report (GAR). See http://www.nerc.com/pa/RAPA/
61003—Critical Electric Infrastructure Security and confidentiality issues to ensure that Commission gads/Pages/pc-GAR.aspx.
Amending Critical Energy Infrastructure staff can promptly access the databases upon the 93 Id.
Information, 155 FERC ¶ 61,278 (2016). Final Rule becoming effective. 94 See, e.g., CEA Comments at 15, WECC
88 In deferring the effectiveness of this Final Rule, 90 NERC Comments at 4. Comments at 2.
the Commission is not making a determination that 91 Id. at 4–5. 95 Resilient Societies Comments at 2.
VerDate Sep<11>2014 17:56 Jul 11, 2016 Jkt 238001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\12JYR1.SGM 12JYR1](https://thefederalregister.org/doc/81_FR_45131/page/8.svg)
![Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Rules and Regulations 45007
underlying misoperations reporting Energy Regulatory Commission, Office Commission staff, with access, on a non-
obligation was subsequently removed of the Executive Director, 888 First public and ongoing basis, to the existing
from Reliability Standard PRC–004–2.1 Street NE., Washington, DC 20426 TADS, GADS, and protections system
and moved into a separate data request [Attention: Ellen Brown, email: misoperations databases. As discussed
pursuant to Section 1600 of NERC’s DataClearance@ferc.gov, phone: (202) above, we estimate that the costs to the
Rules of Procedure. However, the 502–8663, fax: (202) 273–0873]. ERO associated with this Final Rule will
underlying reporting burden to NERC 65. Comments concerning the be de minimis. Accordingly, the
was still reflected in the OMB burden information collections approved in this Commission certifies that the new
estimate,100 and is currently included in Final Rule and the associated burden regulation will not have a significant
the FERC–725 information collection estimates, should be sent to the economic impact on a substantial
(OMB Control No. 1902–0255, recently Commission in this docket and may also number of small entities, and no
approved by OMB on February 26, be sent to the Office of Management and regulatory flexibility analysis is
2016). Budget, Office of Information and required.
62. Finally, the Trade Associations are Regulatory Affairs [Attention: Desk
incorrect with respect to the scope of Officer for the Federal Energy VI. Document Availability
existing FERC–725 (Certification of Regulatory Commission, phone: (202) 69. In addition to publishing the full
Electric Reliability Organization; 395–0710, fax: (202) 395–7285]. For text of this document in the Federal
Procedures for Electric Reliability security reasons, comments should be Register, the Commission provides all
Standards), which covers the ERO’s sent by email to OMB at the following interested persons an opportunity to
obligation to provide data to the email address: oira_submission@ view and/or print the contents of this
Commission. FERC–725 includes omb.eop.gov. Please reference the document via the Internet through the
information required by the docket number of this Final Rule Commission’s Home Page (http://
Commission to implement the statutory (Docket No. RM15–25–000) and OMB www.ferc.gov) and in the Commission’s
provisions of section 215 of the FPA, Control No. 1902–0225 in your Public Reference Room during normal
and includes the burden, reporting and submission. business hours (8:30 a.m. to 5:00 p.m.
recordkeeping requirements associated Eastern time) at 888 First Street NE.,
IV. Environmental Analysis
with: (a) Self Assessment and ERO Room 2A, Washington, DC 20426.
Application, (b) Reliability 66. The Commission is required to 70. From the Commission’s Home
Assessments, (c) Reliability Standards prepare an Environmental Assessment Page on the Internet, this information is
Development, (d) Reliability or an Environmental Impact Statement available on eLibrary. The full text of
Compliance, (e) Stakeholder Survey, for any action that may have a this document is available on eLibrary
and (f) Other Reporting. significant adverse effect on the human in PDF and Microsoft Word format for
63. As a result, this Final Rule will be environment.101 The Commission has viewing, printing, and/or downloading.
submitted to OMB for review and categorically excluded certain actions To access this document in eLibrary,
approval as a ‘‘no material or from this requirement as not having a type the docket number excluding the
nonsubstantive change to a currently significant effect on the human last three digits of this document in the
approved collection.’’ environment. Included in the exclusion docket number field.
Title: FERC–725, Certification of are rules that are clarifying, corrective, 71. User assistance is available for
Electric Reliability Organization; or procedural or that do not eLibrary and the Commission Web site
Procedures for Electric Reliability substantially change the effect of the during normal business hours from
Standards. regulations being amended.102 The FERC Online Support at 202–502–6652
Action: Revision of currently actions here fall within this categorical (toll free at 1–866–208–3676) or email at
approved collection of information. exclusion in the Commission’s ferconlinesupport@ferc.gov, or the
OMB Control No.: 1902–0225. regulations. Public Reference Room at (202) 502–
Respondents for this Rulemaking: 8371, TTY (202) 502–8659. Email the
Electric Reliability Organization. V. Regulatory Flexibility Act
Public Reference Room at
Frequency of Information: Initial 67. The Regulatory Flexibility Act of public.referenceroom@ferc.gov.
implementation by the ERO to provide 1980 (RFA) 103 generally requires a
Commission access to TADS, GADS, description and analysis of final rules VII. Effective Date and Congressional
and misoperations databases. that will have significant economic Notification
Internal review: The Commission has impact on a substantial number of small 72. These regulations are effective
reviewed the proposed regulation and entities. The Small Business July 12, 2016. The Commission has
has determined that the proposed Administration (SBA) revised its size determined, with the concurrence of the
regulation is necessary to ensure the standard (effective January 22, 2014) for Administrator of the Office of
reliability and integrity of the nation’s electric utilities from a standard based Information and Regulatory Affairs of
Bulk-Power System. on megawatt hours to a standard based OMB, that this rule is not a ‘‘major rule’’
64. Interested persons may obtain on the number of employees, including as defined in section 351 of the Small
information on the reporting affiliates.104 Business Regulatory Enforcement
requirements by contacting the Federal 68. The Commission is amending its Fairness Act of 1996. The Commission
regulations to require only the ERO (i.e., will submit the Final Rule to both
PRC–004–2a), covered under FERC–725A (OMB NERC) to provide the Commission, and
Control No. 1902–0244); Reliability Standard PRC– houses of Congress and to the General
Accountability Office.
mstockstill on DSK3G9T082PROD with RULES
004–2.1(i)a in Docket No. RM12–16, covered by
101 Regulations Implementing the National
FERC–725M (OMB Control No. 1902–0263);
Environmental Policy Act of 1969, Order No. 486, By the Commission.
Reliability Standard PRC–004–3 (in Docket No.
RD14–14), covered by FERC–725G1 (OMB Control 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Issued: June 16, 2016.
No. 1902–0284); and Reliability Standard PRC–004– ¶ 30,783 (1987).
102 18 CFR 380.4(a)(2)(ii).
Kimberly D. Bose,
4 (in Docket No. RD15–3) (submitted to OMB for
information only). 103 5 U.S.C. 601–612. Secretary.
100 See North American Electric Reliability Corp., 104 SBA Final Rule on ‘‘Small Business Size In consideration of the foregoing, the
151 FERC ¶ 61,129, at P 22 (2015). Standards: Utilities,’’ 78 FR 77,343 (Dec. 23, 2013). Commission amends Chapter I, Title 18,
VerDate Sep<11>2014 17:56 Jul 11, 2016 Jkt 238001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\12JYR1.SGM 12JYR1](https://thefederalregister.org/doc/81_FR_45131/page/10.svg)
![45008 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Rules and Regulations
part 39 of the Code of Federal DEPARTMENT OF THE TREASURY Books and records relating to a
Regulations, as follows: collection of information must be
Internal Revenue Service retained as long as their contents may
PART 39—RULES CONCERNING become material in the administration
CERTIFICATION OF THE ELECTRIC 26 CFR Parts 1 and 602 of any internal revenue law. Generally,
RELIABILITY ORGANIZATION; AND tax returns and tax return information
[TD 9775]
PROCEDURES FOR THE are confidential, as required by 26
ESTABLISHMENT, APPROVAL, AND RIN 1545–BN26
U.S.C. 6103.
ENFORCEMENT OF ELECTRIC
RELIABILITY STANDARDS Requirement To Notify the IRS of Intent Background
To Operate as a Section 501(c)(4)
Organization; Final and Temporary This Treasury decision contains
■ 1. The authority citation for part 39
Regulations temporary regulations under section 506
continues to read as follows:
of the Code. Section 405 of the
Authority: 16 U.S.C. 824o. AGENCY: Internal Revenue Service (IRS),
Protecting Americans from Tax Hikes
Treasury.
Act of 2015 (Pub. L. 114–113, div. Q)
■ 2. Amend § 39.11 to add paragraph (c) ACTION: Final and temporary
as follows: (the PATH Act), enacted on December
regulations. 18, 2015, added section 506 to the Code
§ 39.11 Reliability reports. SUMMARY: This document contains final and amended sections 6033 and 6652.
* * * * * and temporary regulations relating to Because the statutory provisions were
the requirement, added by the effective upon enactment and certain
(c) The Electric Reliability section 501(c)(4) organizations must
Organization shall make available to the Protecting Americans from Tax Hikes
Act of 2015, that organizations must notify the IRS within 60 days of
Commission, on a non-public and
notify the IRS of their intent to operate formation, these temporary regulations
ongoing basis, access to the
under section 501(c)(4) of the Internal are necessary to provide prompt
Transmission Availability Data System,
Revenue Code (Code). The regulations guidance to enable section 501(c)(4)
Generator Availability Data System, and
affect organizations described in section organizations to satisfy the new
protection system misoperations
501(c)(4) (section 501(c)(4) statutory notification requirement and
databases, or any successor databases
thereto. Such access will be limited to: organizations) that are organized after provide appropriate transition relief.
December 18, 2015, and certain section
(1) Data regarding U.S. facilities; and 1. Section 501(c)(4) Organizations
501(c)(4) organizations existing on that
(2) Data that is required to be date. The text of the temporary Section 501(a) of the Code generally
provided to the ERO. regulations serves as the text of the provides that an organization described
The following appendix will not proposed regulations set forth in the in section 501(c) is exempt from federal
appear in the Code of Federal related notice of proposed rulemaking income tax. Section 501(c)(4) describes
Regulations. (REG–101689–16) published in the certain civic leagues or organizations
Proposed Rules section in this issue of operated exclusively for the promotion
Appendix the Federal Register. of social welfare and certain local
Commenters DATES: associations of employees. An
Effective Date: These regulations are organization is described in section
American Public Power Association, Large
effective on July 8, 2016. 501(c)(4) and exempt from tax under
Public Power Council, and the
Applicability Date: For date of section 501(a) if it satisfies the
Transmission Access Policy Study Group
(collectively, Public Power Associations)
applicability, see § 1.506–1T(f). requirements applicable to such status.
Canadian Electricity Association (CEA) FOR FURTHER INFORMATION CONTACT: Subject to certain exceptions, section
David Jonas Bardin (David Bardin) Chelsea Rubin at (202) 317–5800 (not a 6033, in part, requires organizations
Edison Electric Institute, Electric Power toll-free number). exempt from taxation under section
Supply Association, Electricity Consumers SUPPLEMENTARY INFORMATION: 501(a) to file annual information returns
Resource Council, and the National Rural or notices, as applicable.
Electric Cooperative Association
Paperwork Reduction Act
The collection of information Although an organization may apply
(collectively, Trade Associations)
Foundation for Resilient Societies (Resilient contained in these final and temporary to the IRS for recognition that the
Societies) regulations will be reviewed and, organization qualifies for tax-exempt
Kansas City Power & Light Company pending receipt and evaluation of status under section 501(c)(4), there is
(KCP&L) public comments, approved by the no requirement to do so (except as
North American Electric Reliability Office of Management and Budget under provided in section 6033(j)(2), which
Corporation (NERC) control number 1545–2268. requires organizations that lose tax-
Northwest Public Power Association An agency may not conduct or exempt status for failure to file required
(NWPPA) sponsor, and a person is not required to annual information returns or notices
Rio Tinto Alcan Inc. (RTA) respond to, a collection of information and want to regain tax-exempt status to
SGS Statistical Services (SGS) unless the collection of information apply to obtain reinstatement of such
Tri-State Generation and Transmission displays a valid control number. status). Accordingly, a section 501(c)(4)
mstockstill on DSK3G9T082PROD with RULES
Association, Inc. (Tri-State) For further information concerning organization that files annual
Western Electric Coordinating Council this collection of information, please information returns or notices, as
(WECC) refer to the preamble to the cross- required under section 6033, need not
Western Interconnection Regional Advisory referencing notice of proposed seek an IRS determination of its
Board (WIRAB) rulemaking published in the Proposed qualification for tax-exempt status in
[FR Doc. 2016–14760 Filed 7–11–16; 8:45 am] Rules section of this issue of the Federal order to be described in and operate as
BILLING CODE 6717–01–P Register. a section 501(c)(4) organization.
VerDate Sep<11>2014 17:56 Jul 11, 2016 Jkt 238001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\12JYR1.SGM 12JYR1](https://thefederalregister.org/doc/81_FR_45131/page/11.svg)
Document Created: 2016-07-12 01:59:02
Document Modified: 2016-07-12 01:59:02
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Contact | Raymond Orocco-John (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6593, Raymond.Orocco- [email protected] Julie Greenisen (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6362, [email protected] | |
| FR Citation | 81 FR 44998 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR