UDSA Section V8 - Additional Notice to Parties
ADDITIONAL DISCUSSION REGARDING SECTION V.8 OF THE PEAK RELIABILITY DATA SHARING AGREEMENT
A Notice Regarding Section V.8 of the Peak Reliability Universal Data Sharing Agreement has been sent to all UDSA Parties, other interested parties and posted HERE. There is also a link in the document to previous comments
Comments will be accepted until May 25, 2017. If you wish to review and add comments, please click on the Reply button.
WIRAB Advice to Peak Reliability on Including Third Party Data Sharing in its Universal Data Sharing Agreement
May 24, 2017
The Western Interconnection Regional Advisory Body (“WIRAB”) appreciates the opportunity to provide advice to Peak Reliability on whether the Peak Reliability Universal Data Sharing Agreement (“UDSA”) should be amended to include a third party data sharing process. Back in late 2015, in anticipation of a new Federal Energy Regulatory Commission (“FERC”) rule on Critical Electric Infrastructure Information (“CEII”) security, the Exhibit A Peak Data Sharing Review Process was removed from the final UDSA. Section V.8 was then added to the UDSA, directing Peak and UDSA signatories to:
“…engage in review of the [UDSA] and the previously adopted Exhibit A Peak Data Sharing Review process to address how Peak will share data with third parties… [and] negotiate in good faith to create a data sharing review process, and any associated data categorization table for such data, to govern the sharing of Covered Data with third parties under [the UDSA], in a manner that is consistent with the requirements of the final FERC rule [under section 215A(d)(2) of the Federal Power Act].”
Section 215A(d)(2) of the Federal Power Act was created when the President signed the Fixing America’s Surface Transportation Act (“FAST Act”) into law, requiring FERC to issue rules and definitions related to CEII security. Among other things, the FAST Act also requires FERC to ensure that appropriate sanctions are in place for federal employees who inappropriately release CEII. This poses a risk to employees of BPA and WAPA.
Peak’s “review” of the UDSA was to begin within 30 days of the effective date of FERC’s final rule on the designation and sharing of CEII. The final rule went into effect on February 21, 2017. Peak began its engagement with signatories of the UDSA on March 10, 2017, but failed to include all Peak stakeholders in that process. In the comments received by Peak on or before March 10th, nearly all commenters (8 in total), supported some sort of third party data sharing process, but an equally large portion of commenters believe that, due to the uncertainty of how FERC’s rules will pertain to United States Department of Energy (“U.S. DOE”) employees, including BPA and WAPA employees, it would be premature to address the issue at this time.
The Peak UDSA should be amended to include a third party data sharing process. WIRAB believes there is significant value in the research and development that can be gained from providing researchers, academics, national laboratories, and entrepreneurs with access to data collected by Peak, including CEII, provided these entities can protect CEII as well as or better than the industry. Innovation will occur in the electric industry when these types of entities can conduct their research and development using real data, rather than theoretical information. Western States and Provinces rely on the insights provided by new research and analysis when making public policy and regulatory decisions affecting the Western Interconnection. Allowing researchers and innovators access to data, even CEII data, can help Western Policymakers to advance the industry and to create a more reliable and efficient grid.
The Peak UDSA should continue to provide security and protection for CEII data. The previously adopted and removed Exhibit A Peak Data Sharing Review Process provides safeguards for the protection of CEII data. CEII data should not be shared with third party requestors that cannot adequately protect the data or that do not seek the data for legitimate purposes. Peak should continue to ensure that an appropriate balance is achieved between the protection of CEII data and the appropriate sharing of data with third party requestors.
Exhibit A of the UDSA was adopted and approved by the Peak Board around the same time the President signed the FAST Act into law, requiring FERC to issue rules related to CEII and incentivizing Peak to remove Exhibit A. Many stakeholders hoped that FERC’s rules would provide the industry with further guidance on how to manage CEII. That was not the case.
However, most of the work Peak and its stakeholders conducted during drafting of the UDSA and its Exhibit A Peak Data Sharing Review Process is not effected by FERC’s decisions. FERC’s Order noted that the rulemaking does not address data sharing within the energy industry. Section V.8, and the Peak Board’s Resolution adopting the UDSA with Exhibit A removed, state that parties to the UDSA will review the UDSA and Exhibit A to address how (not if) Peak will share data with third parties. Further, section V.8 states that parties “will negotiate in good faith to create a data sharing review process . . . and data categorization table[.]”
WIRAB makes the following recommendations on how Peak should move forward with respect to the UDSA Section V.8 provisions:
1. WIRAB recommends that the Peak Board direct Peak to reengage with all stakeholders in a robust review of the UDSA and Exhibit A, lead discussions on how to amend the UDSA to include a third party data sharing process, and begin sharing information that is not CEII with third party requestors. The protection of CEII data is paramount, but not all data is categorized as CEII. Some of the data Peak collects was determined during the development of the original Exhibit A Data Sharing Review Process to be either Public, Non-Sensitive, or Sensitive Data. Peak also categorized some data in the Peak Data Categorization Table as Critical or Restricted Data that had more restrictive sharing requirements. The data in these two categories may likely be CEII, but data from the three less restrictive data categories should be shared with any viable requester with a valid request who can appropriately protect the requested data at this moment in time. The Data Categorization Table was vetted by stakeholders during the drafting of the UDSA and most data providers were in agreement with the data elements included in each category.
WIRAB believes Peak should do more with the Data Categorization Table and definitions and should work with its stakeholders to fine-tune the criteria and definitions for designating information as Public, Non-Sensitive, Sensitive, Critical, and Restricted. WIRAB believes that Peak has the opportunity to be an industry leader in identifying criteria that can be used to categorize bulk electric system data and in establishing an appropriate balance between protecting and securing CEII data and fostering research and development to improve bulk electric system reliability. Peak’s Data Categorization Table still lacks clarity on Peak’s reasoning for placing certain data into the data categories. Peak should develop a methodology and clear definitions for assigning data to each of the categories within the Data Categorization Table. Without clear criteria, it will be difficult to categorize new data elements or to conduct a fair appeal process.
2. WIRAB recommends that Peak and the UDSA signatories identify another trigger point for Peak and interested stakeholders to discuss how to deal with data categorized as Critical and Restricted. The protection of data categorized as Critical and Restricted is of paramount importance, but it does not override the potential benefits of improved bulk electric system reliability in all instances. In other words, a blanket prohibition against sharing Critical and Restricted data may not always be in the public interest. Peak should reengage with interested stakeholders to improve the protocols that govern the sharing of Critical and Restricted data at the appropriate time.
WIRAB understands the concerns associated with uncertainty posed to BPA and WAPA employees and believes that data categorized as Critical and Restricted should not be shared until a rulemaking from the U.S. DOE can provide additional guidance and safe harbor to BPA and WAPA employees. It may be premature to reengage in sharing data that is routinely considered CEII without further direction from the U.S. DOE on how its employees would be effected if data was inappropriately shared.
However, WIRAB believes that providing researchers, academics, national laboratories, and entrepreneurs with appropriate access to Critical and Restricted data will be critical to driving essential industry transformations that will improve and support the reliability of the bulk power system. Accordingly, WIRAB recommends that the Peak Board commit to revisiting the amended UDSA and exploring the possibility of expanding the third party data sharing process once U.S. DOE or FERC take steps to provide additional guidance on this issue and safe harbor to BPA and WAPA employees.
In conclusion, WIRAB recommends that Peak amend the UDSA now to include a third party data sharing process and clear data category definitions that support sharing of Public, Non-Sensitive, or Sensitive data. Further, WIRAB recommends that Peak, the Peak Board, and UDSA signatories commit to revisiting the UDSA third party data sharing process—within a clear timeframe triggered by the effective date of a relevant U.S. DOE or FERC rule—to reconsider appropriate sharing of Critical and Restricted data.
Powerex Comments on the Peak UDSA
Powerex appreciates the opportunity to comment on the Universal Data Sharing Agreement (“UDSA”) and the third-party data sharing procedures.
On November 17, 2016, the Federal Energy Regulatory Commission (“FERC”) published a final rule, Regulations Implementing Gas Act Section 61003 – Critical Electric Infrastructure Security and Amending Critical Energy Infrastructure Information, 157 FERC ¶ 61,123 (2016) (“Final Rule”), that updated FERC’s Critical Energy/Electric Infrastructure Information (“CEII”) regulations in response to new statutory requirements set out in the Fixing America’s Surface Transportation Act (“FAST Act”). This Final Rule took effect on February 20, 2017. Although the FAST Act and the Final Rule do not specifically address the UDSA, the Final Rule nonetheless provides certain clarifications and principles relevant to data classification, uses, and sharing of CEII and other types of restricted-access materials. In anticipation of FERC’s Final Rule, the USDA included Section 8, which requires further negotiation between the parties upon issuance of the Final Rule.
Powerex requests that Peak re-open the discussions and the working group process, given certain clarifications by FERC in the Final Rule. Powerex believes that further efforts are essential to create a balanced and consistent data sharing agreement and a process for sharing data with third parties. Section 8 of the UDSA states that parties will negotiate in good faith to create a data sharing review process to govern the sharing of Covered Data with third parties in a manner “that is consistent with the requirements of the final FERC rule.” Notably, several provisions of the UDSA and Exhibit A (“Peak Data Sharing Review Process”) are not fully consistent with the Final Rule and—pursuant to the commitment set out in Section 8—should be evaluated and discussed further.
In the Final Rule FERC re-affirmed the fundamental principle that classification of CEII should strike a balance between the need to protect critical information and the need to access that data, stating in response to a Powerex comment that “the Commission will balance the need to protect critical information with the potential need of parties participating in Commission proceedings to access CEII.” Final Rule at P 26. FERC also indicated that the CEII procedures set forth in the Final Rule “should only address CEII and not other types of information.” Id. at P 26. In keeping with these principles, it is essential that Peak also consider the importance of balancing the two competing interests when devising its third-party data sharing procedures.
As described below, these areas in particular warrant additional attention:
Classification. The Final Rule clarified that information related to compliance with Reliability Standards may be treated as CEII if the submitter justifies its treatment as CEII. Final Rule at P 36. Justifications for classifying data represent a key requirement to mitigate the potential for over-classification. The importance of this requirement is reflected in the Final Rule, where FERC re-emphasized that that CEII should be segregated from non-CEII information to minimize over-classification. Final Rule at P 62 and 18 C.F.R. § 388.113(d)(1)(ii)(“The submitter must also segregate those portions of the information that contain CEII (or information that reasonably could be expected to lead to the disclosure of the CEII) wherever feasible.”). Powerex believes that the current UDSA does not meet this objective, and over-classifies the treatment of non-CEII data.
Furthermore, neither the UDSA nor Exhibit A contains provisions requiring that parties labelling or classifying information provide a justification for such classification. Providing an adequate justification for certain data would minimize over-classification. Powerex suggests that further discussions on the third-party data sharing procedures consider whether and how parties might be required to provide appropriate justifications for the classification given to certain data. Once data is appropriately categorized, the UDSA should set forth separate and distinct procedures for requesting different types of data, e.g., Critical or Sensitive. Data can be re-classified at any time to fall into distinct buckets, thus minimizing the burdens placed on third parties when seeking non-CEII data. This aspect of the UDSA should be re-evaluated based on the principles set forth in the Final Rule.
Safeguarding. In the Final Rule FERC declined to provide further guidance on how to safeguard CEII, stating that keeping CEII in a “secure place” has a well-understood meaning:
The Commission is not persuaded by Peak’s comments that there is a need to clarify what constitutes maintaining CEII in a secure place. We believe that a “secure place,” as articulated in the NDA, has a well-understood meaning, i.e., safe or free from unauthorized access or a risk of loss. Final Rule at P 95.
But the UDSA imposes significant additional requirements, not only for Critical Data, but also for non-Critical Data or non-Sensitive Data, which is simply unnecessary. For instance, the UDSA requires the requestor to complete a cyber-security checklist and provide a certificate of insurance with minimum coverage limits. Exhibit A at I.A. Failure to meet these requirements is grounds for denial of the data request. Exhibit A at Section I.E.
Powerex believes that the UDSA requires revisions addressing the types of controls the third-party data sharing procedures should require to minimize undue burden while still ensuring adequate safeguarding.
Justifications for Requests. In the Final Rule, FERC dismissed comments that there was a need for a CEII requester to demonstrate that there is a “reliability or social benefit” to the request. Final Rule at P 98. FERC noted that data requesters have historically fallen into different categories, including individuals “known to the Commission with no known risk.” Final Rule at P 98. Yet, Section I.A of Exhibit A requires the Data Requestor to provide considerable information describing the intended use of the data, the reliability benefits, and a description of the planned analysis. While justifications should be evaluated on a case-by-case basis and on an “as-needed basis,” as FERC acknowledges, nonetheless the data sharing procedures should recognize the minimal risks presented by known and understood data requesters.
Powerex believes that the UDSA should be revised to remove the “reliability and social benefit” provisions and that the third-party data sharing procedures should be re-evaluated, which includes an evaluation of the demonstrations that a Data Requestor must make.
Derivative Analyses. The Final Rule also stated that derivative analyses that use or rely on CEII, without actually containing or disclosing CEII, do not automatically qualify as CEII unless the information provided could reasonably be expected to lead to the disclosure of CEII. Final Rule at P 64. The UDSA currently provides that Derived Information is necessarily included in the definition of Covered Data and must be treated as such, but states also that sufficiently aggregated or masked data need not be treated as such. UDSA Section III.11.
Powerex requests that the third-party data sharing review procedures also should sufficiently clarify that aggregated, masked, or derivative should not be unduly restricted so as to facilitate wider sharing, even perhaps with less stringent procedures given that Covered Data would be sufficiently aggregated or masked.
In summary, Powerex believes that the UDSA is not compliant with the principles set forth in FERC’s Final Rule and that a more thorough review of the UDSA and the third-party data sharing procedures is required, as informed by FERC’s recent Final Rule and the principles set out therein.
this time, Western Area Power Administration (WAPA) does not support amending Peak
Reliability’s Universal Data Sharing Agreement (UDSA) to include third party
data sharing. As previously stated in Bonneville
Power Administration’s and WAPA’s March 10, 2017, comments, WAPA remains
concerned about amending the Peak UDSA to include third party data sharing
until further actions are taken by the Federal Energy Regulatory Commission or
Department of Energy. WAPA refers Peak
to the previously submitted comments.
BANC Comments on UDSA
The Balancing Authority of Northern California (BANC)
concurs with the conclusions reached by the Peak Reliability Coordinator (Peak)
that the data provided to Peak can only be shared with non-registered entity
third parties based upon concurrence by the data provider; however, only
insofar that the provision of data does not include protected data from another
BANC has generally supported the concept of sharing data
with third parties, provided there are adequate protections in place for any critical
and/or confidential information and there is a process that allows active
engagement by the data providers in approving sharing of data. The proposal for
sharing of data with third parties developed by the Data Sharing Task Force largely
met BANC’s intent in this regard. Indeed,
BANC was prepared to approve this proposal as part of the Universal Data
Sharing Agreement (UDSA); however, the requirements of the Fixing America’s
Surface Transportation Act (“FAST Act” or “Act”) raised concerns about the
ability of Department of Energy (DOE) entities, such as the Bonneville Power
Administration (BPA) and the Western Area Power Administration (WAPA), to agree
to such a process. Therefore, BANC also
supported moving forward with the UDSA without the section on third party data sharing,
which solved the issue of having an ongoing agreement in place for the
reliability entities to share data. BANC further concurred with the requirement
that the issue would be revisited once the Federal Energy Regulatory Commission
(FERC) had promulgated its rules as required by the FAST Act. Unfortunately, FERC took a very narrow
approach to the requirements imposed on them by the Act and did not address how
entities such as BPA and WAPA should address the issue. Though it is believed
that DOE will address this issue at some time in the future, there is no known
date as to when this will occur. And absent clear guidelines from DOE, it is
BANC’s understanding that BPA and WAPA are reluctant to proceed with any
further discussion regarding Section V.8 (i.e., third party data sharing) of
the UDSA. Therefore, BANC believes that
holding further discussions absent the ability of BPA and WAPA to fully engage
in the process is a waste of time and resources. As such, Peak should delay
holding further discussions regarding data sharing with third parties until
such time that DOE has addressed the issue for both BPA and WAPA.
Jim Shetler - BANC General Manager
Tri-State Generation and Transmission Association, Inc. provides the following suggestions.
1. The Peak Board adopt the previously approved Universal Data Sharing Agreement - revised 11 20 15
2. The Peak Board adopt the previously approved Peak Data Category Table
3. The Peak Board adopt the previoulsy approved Exhibits A and B to the UDSA
4. The Peak Board adopt the previously approved Data Licensing Agreement - revised 11 10 15
A substantial amount of work, discussion and efforts went into the documents which were agreed upon by the parties to the negotiations prior to the FASTAct being signed. Rather than pursuing a new effort that would take more work, time and effort, we would encourage the use of these documents as they were agreed upon in late 2015.
Tri-State thanks Peak for the opportunity to provide input into this very important discussion and future action.
Senior Transmission Policy Analyst
Tri-State Generation and Transmission Association, Inc.
Utility System Efficiencies (USE) feels very strongly that the Peak UDSA should be amended to include a third party data sharing process. USE echoes the sentiments posted by WIRAB above. USE also recommends that PEAK look to other Reliability Coordinators (SPP, ERCOT, MISO etc.) and Regional Entities (WECC, MRO, TRE, etc.) for guidance on how they handle data sharing with third party entities.
USE explicitly sees the need for sharing data with entrepreneurs/businesses that are exclusively engaged in services that advance the reliability and security of the Western Interconnection. USE is an example of such an organization, as witnessed by its current and past involvement with the WECC Rating Processes for many major transmission projects along with the subsequent operational studies for some of those that have achieved Phase 3. In addition, USE has performed:
• post mortem studies for major disturbances,
• hundreds of interconnection studies,
• NERC Compliance studies, and
• other services that are critical to the security and reliability of the Western Interconnection.
Over the past 25 years hundreds of entities, including public and private utilities, generation and transmission developers, regulatory agencies and the DOE National Labs (sometimes aligned with FERC), have relied heavily on USE’s services.
May 25, 2017
refer to the March 10, 2017, joint Bonneville Power Administrtion (BPA) and Western Area Power Administration (WAPA) comments previously
submitted. BPA remains concerned that amending the UDSA to include third
party data sharing continues to be premature. As noted in our earlier
comments, on January 17, 2017, FERC issued an order "Granting
Rehearing For Further Consideration." The rehearing action is still pending, which
we believe puts into question the status of whether FERC Order 833 is a
"final rule," thereby triggering UDSA section V.8. Further, until
DOE completes its rulemaking providing guidance for defining the process and
criteria for identifying CEII for DOE offices, BPA does not support amending
the UDSA to include Appendix A. Specifically, BPA is concerned that data
in the Peak data category table referenced in Appendix A, as currently drafted,
could be identified as CEII under the yet to be determined DOE rules. We
also understand that the Agreement would have to be amended to update the
definition of CEII to reflect the definitions in FAST Act, the FERC
requirements for non-DOE signatories, and the DOE requirements when final.
NorthWestern Energy supports the sharing of data with third parties provided the CEII data is appropriately protected and that each individual party whose data is being shared with a third party should have the ultimate say on whether or not the data is shared and any conditions on the party requesting the data.
Manager, Regional Transmission Policy