March 21 Order. 15. The March 21 Order approved NERC’s revision to CMEP section 3.4 to provide that, in addition to NERC and the Commission, governmental authorities in Canada and Mexico with subject matter jurisdiction over reliability may commence an investigation into a U.S.-related matter. The Commission’s approval was on the condition that prior to NERC’s disclosure to such an authority of any information relating to the matter, NERC must notify the Commission of the investigation, any proposed disclosures of information, and procedures to ensure compliance with section 39.7(b)(4) of the Commission’s regulations.12
March 21 Order. 76. The March 21 Order required MRO to revise the definition of the term “sub- regional variance,” as it appears in the MRO Standards Development Process Manual. The Commission noted that the MRO manual defined this term, in relevant part, as “[a]n aspect of a Reliability Standard . . . that applies only within a particular regional entity sub-region.” However, the Commission found that this definition could be misinterpreted as allowing exemptions that establish a level of reliability less than that set by the continent-wide Reliability Standard. The Commission noted the Order No 672 discussion regarding regional differences where the Commission stated: As a general matter, we will accept the following two types of regional differences, provided they are otherwise just, reasonable, not unduly discriminatory or preferential and in the public interest, as required under the statute: (1) a regional difference that is more stringent than the continent-wide Reliability Standard, including a regional difference that addresses matters that the continent-wide Reliability Standard does not; and
March 21 Order. 98. The March 21 Order found that the SERC bylaws do not address or otherwise ensure that the SERC hearing body (as comprised by the SERC board compliance committee, or a designated subset of that committee) satisfies the Commission’s requirements concerning control by industry sectors over a Regional Entity’s decisions. The Commission also found that SERC failed to explain how a subset of the compliance committee, serving as the hearing body, would report to the SERC board. Finally, the Commission found that the SERC bylaws do not provide that the hearing body will decide questions in a hearing by a majority of the votes cast by a quorum.48
March 21 Order. 113. The March 21 Order required that the WECC hearing procedures be revised, at paragraph 1.4.1(b), with respect to WECC compliance staff’s obligation to produce exculpatory evidence.54 Specifically, the Commission required that this obligation be subject to and limited by any applicable privilege and required WECC to explain why this obligation should extend, at paragraph 1.4.1(b)(3), to documents not otherwise discoverable or needed for a complete record. The Commission also directed WECC to clarify the meaning of the term “material” exculpatory evidence in the context of proposed paragraph 1.4.1.
March 21 Order. 81. The March 21 Order stated that it was unclear whether the voting protocols applicable to the NPCC hearing body (NPCC Exhibit D at section 2.0) comply with the Commission’s prior directive that a hearing body render its decisions by a majority of the votes cast by a quorum. The Commission noted that, under the NPCC bylaws, the 39 See 18 C.F.R. § 39.10 (2008). Docket No. RR06-1-016, et al. -28- compliance committee (the entity authorized to serve as the NPCC hearing body) would be required to use the quorum and voting rules applicable to the NPCC board and that board actions, in turn, required the receipt of a two-thirds affirmative majority of the weighted sector votes, i.e., not a simple majority. Accordingly, the Commission directed NPCC to modify the voting rules applicable to the NPCC hearing body.40
March 21 Order. 103. The March 21 Order provided that: With respect to SPP’s annual membership fee, we accept SPP’s statement that this fee is for membership in Southwest Power Pool, Inc. and is not required to participate in Regional Entity activities. To clarify this distinction, we direct SPP to revise its bylaws to explicitly state that membership in the Regional Entity is open to any entity and that SPP will not charge a fee for such participation.[50] 104. With respect to funding, the March 21 Order found that SPP’s proposed funding mechanism, as set forth in Exhibit E, section 5 to the SPP Delegation Agreement, failed to address how the funds collected by SPP for non-statutory expenses will be kept separate from funds collected under FPA section 215. Accordingly, the Commission directed NERC and SPP to establish, at section 5, the procedures necessary to ensure this separation of accounts, or otherwise justify the existing provision.51 50 March 21 Order, 122 FERC ¶ 61,245 at P 213. 51 Id. P 216. Docket No. RR06-1-016, et al. -35- 105. The Commission also stated that it remained concerned regarding the adequacy of the separation of functions between the SPP RTO and SPP Regional Entity. The March 21 Order noted that Commission staff is auditing SPP Regional Entity’s organizational structure and practices, and a final Commission determination regarding the adequacy of the separation of functions between SPP Regional Entity and SPP RTO will remain pending the results of the audit.
