On July 18, 2013, FERC issued a Notice of Proposed Rulemaking (“NOPR”) to explicitly authorize the sharing of non-public operational information between interstate natural gas pipelines and public electric utilities that own, operate, or control transmission facilities for the sale of electric energy in interstate commerce. The proposal would revise FERC’s regulations to allow for information sharing that the pipeline or utility deems necessary for the purpose of promoting reliable service and operational planning.
FERC issued the NOPR after hosting several technical conferences (see March 11, 2013 edition of the WER) in which FERC sought ways to improve communication and information sharing between the two industries. According to the NOPR, several participants at FERC’s technical conferences stated that they are reluctant to share information for fear of violating laws, regulations, or tariffs. FERC noted in the NOPR that others expressed a desire for FERC to clearly identify the type of information that can be shared between industries and clarify that sharing such information is not a violation of FERC’s prohibition against undue discrimination.
The NOPR addresses these issues by proposing to revise FERC’s regulations to allow for the sharing of “non-public, operational information” – i.e., information that is not publicly posted, but helpful in operating a reliable system on a day-to-day basis, during emergency conditions, or for operational planning – that a pipeline or utility believes is necessary to promote reliable transmission or operational planning based on the pipeline’s or the utility’s experience and operational knowledge of their respective systems. FERC did not include an exhaustive list in the NOPR as to what information can be shared, but instead decided to defer to the pipeline and utility operators to determine what is considered “non-public, operational information” based on their insight and knowledge of the industry. Additionally, FERC clarified that such information sharing is not limited to emergency situations, but can occur whenever the information is deemed necessary for reliable service and operational planning. Finally, FERC proposed to adopt a No-Conduit Rule that would prohibit utilities and pipelines – as well as their employees, contractors, consultants, or agents – from sharing any non-public, operational information received with any affiliates or third parties.
Comments regarding FERC’s NOPR are due by August 26, 2013. A copy of the NOPR is available here.