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Power & Pipes

FERC, CFTC, and State Energy Law Developments

On July 19, the Federal Energy Regulatory Commission (FERC) approved most of the revisions proposed by a North American Electric Reliability Corporation (NERC) petition to revise NERC’s rules of procedure (ROP) on operator certification, but rejected certain key changes. FERC concluded that NERC’s proposal to remove those provisions would strip substantive rules from the ROP and move them to NERC manuals, thus defeating the efficacy of FERC review because the ROP is subject to FERC review and approval but NERC manuals are not.

NERC had described its proposed changes as being intended to (i) clarify the responsibilities, governance, and scope of the Personnel Certification Program, the Training and Education Program, and the Continuing Education program; and (ii) align the language of the ROP with the current practices of those programs by eliminating detailed programmatic requirements duplicated in existing program manuals for NERC.

FERC concluded that NERC’s proposal to strike Sections 603-605 of the ROP, in particular, was problematic because those provisions govern rights, obligations, and procedures for operators concerning suspension, dispute resolution, and disciplinary actions. FERC explained that NERC had previously determined these sections were substantive and did not provide an explanation for why it now considered these sections as “programmatic details” that could be removed. FERC also explained that if NERC’s rules governing those issues were removed from the ROP and placed in a manual instead, FERC would no longer have the ability to review and approve changes to those rules and the public process for amending those rules would be significantly curtailed.