On November 15, 2013, FERC issued Order No. 787, which is a Final Rule regarding the communication of non-public, operational information between interstate natural gas pipelines and electric transmission providers.  Communication of Operational Information Between Natural Gas Pipelines and Electric Transmission Operators, 145 FERC ¶ 61,134 (2013).

Order No. 787 finds that the voluntary sharing of non-public operational information between pipelines and electric transmission providers — jointly referred to as “transmission operators” in the Final Rule — “is reasonable and not unduly discriminatory or preferential.”  Order No. 787 at P 14.  The order also adopts a No-Conduit Rule that “prohibits recipients of non-public, operational information … from subsequently disclosing that information to a third party or a marketing function employee.”  Id. at P 16.  The Final Rule makes clear that transmission operators are not obligated to share such information, but may do so on a voluntary basis.  Id. at P 45.  The Commission concludes that the Final Rule will foster reliable operations among the increasingly interconnected gas and electric industries.

The Final Rule does not adopt a precise definition of “non-public, operational information,” but states that it is “information that is not publicly posted, yet helps transmission operators to operate and maintain either a reliable pipeline system or a reliable electric transmission system on a day-to-day basis, as well as during emergency conditions or for operational planning.”  Order No. 787 at P 33.  The Commission concludes that it would be impractical to develop a specific and exhaustive list of the types of information that are covered by the Final Rule and notes that the needs of different regions may vary.  Id. at PP 41-42.  The Commission rejected suggestions that transmission operators be required to publicly post all non-public information that is shared pursuant to the Final Rule or to destroy the information by a certain date.  Id. at PP 125 & 136.  Order No. 787 also rejects comments that proposed to limit the sharing of non-public, operational information to emergency conditions, noting that while the Final Rule may be most helpful in emergencies, the Commission wishes to foster reliable service under all conditions.  Id. at P 43.

The Final Rule does not authorize transmission operators to share non-public, operational information with local distribution companies (LDCs), intrastate pipelines, or gatherers.  The Commission notes, however, that the No-Conduit Rule adopted in Order No. 787:

does not otherwise affect the ability of interstate natural gas pipelines to exchange operational information among themselves or with LDCs regarding actual or potential pipeline or distribution system operational conditions affecting the gas flow between these physically interconnected parties.  Nor does it affect the ability of an electric transmission operator to share its own information with an LDC, if otherwise permitted under its tariff.

Order No. 787 at P 56.  Electric transmission providers without such tariff authorization may file tariff revisions pursuant to Section 205 of the Federal Power Act if they wish to share non-public, operational information with LDCs.  Id. at P 57.  Furthermore, if transmission operators have tariffs that differ from the rules adopted in Order No. 787, the transmission operator must make a filing to revise its tariff prior to implementing the Final Rule.  Id. at P 135.  Similarly, Order No. 787 does not “affect the ability of an interstate natural gas pipeline or electric transmission operator to exchange operational information about its own system with customers/stakeholders or members under the same rules and conditions as it currently does, including during an emergency.”  Id. at P 98.

The Commission declined to require generators to notify transmission operators that their natural gas service may be disrupted.  Order No. 787 at P 105.  The Final Rule also declines to require three-way communications when customer-specific information is shared between pipelines and electric transmission providers.  Id. at P 115.  In addition, Order No. 787 clarifies that, under the Standards of Conduct and the Final Rule, marketing function employees (MFEs) may participate in “table top” exercises that “include a wide range of industry participants who will have equal access to non-public transmission and operational information.”  Id. at P 129.  Such table top exercises may not include only transmission operators and MFEs, however, as the MFEs would receive preferential access to non-public transmission or operational information in that instance.  Id.  Finally, the Commission states that the Standards of Conduct and Final Rule do not permit disclosure of commercially-sensitive, customer-specific information at table top exercises without consent of the relevant parties.  Id. at P 130.