On June 16, 2016, FERC amended its regulations to require that the North American Electric Reliability Corporation ("NERC") provide FERC Commissioners and staff with access, on a non-public and ongoing basis, to NERC's Transmission Availability Data System ("TADS"), the Generating Availability Data System ("GADS"), and the protection system misoperations database. While FERC explained that such access would "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," it also added that "the Commission is not precluded from using the accessed data for other statutory purposes."
FERC explained in its order that NERC conducts ongoing data collections from registered entities, and populates databases for transmission outages (TADS), generation outages (GADS), and reportable misoperation events. These data collections are mandatory, pursuant to Section 1600 of the FERC-approved NERC Rules of Procedure. On September 17, 2015, FERC issued a Notice of Proposed Rulemaking to amend its regulations and require that NERC provide FERC Commissioners and staff with access, on a non-public and ongoing basis, to the TADS, GADS, and protection system misoperations databases for U.S. facilities.
In its order granting itself access to these databases, FERC rejected several arguments by protesters that granting itself access to the three NERC databases would reduce the level or quality of the information submitted to NERC, or otherwise have a chilling effect on NERC's data gathering efforts. FERC reasoned that "[b]ecause 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." In addition, FERC rejected contentions by protesters that FERC's access would be duplicative of NERC's functions or responsibilities.
FERC also stated that "access to these three NERC databases is necessary to carry out the Commission's obligations under section 215 of the [Federal Power Act]," particularly with respect to: (i) determining the need for new or modified Reliability Standards; and (ii) gaining a better understanding of NERC's periodic reliability and adequacy assessments. FERC noted, however, that "the Commission is not precluded from using the accessed data for other statutory purposes." In response to concerns expressed by NERC and protesters regarding the protection of confidential information, FERC stated that it would defer the effectiveness of the final rule until it issued a final rule adopting regulations to implement its recently-expanded authority to protect against the disclosure of critical electric infrastructure information, which the Commission argued would allow it to be exempted from any Freedom of Information Act ("FOIA") request. It is therefore not yet known on what specific date the amended regulations granting FERC access to the NERC databases will become effective.
A copy of the June 16, 2016 order, Order No. 824, is available here.
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