
[Federal Register Volume 81, Number 133 (Tuesday, July 12, 2016)]
[Rules and Regulations]
[Pages 44998-45008]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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, Raymond.Orocco-John@ferc.gov.
Julie Greenisen (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE., Washington, 
DC 20426, Telephone: (202) 502-6362, julie.greenisen@ferc.gov.

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: DataClearance@ferc.gov, 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: 
oira_submission@omb.eop.gov. 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 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
public.referenceroom@ferc.gov.

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


