[Federal Register Volume 67, Number 178 (Friday, September 13, 2002)]
[Proposed Rules]
[Pages 57994-58006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23302]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 375 and 388

[Docket Nos. RM02-4-000, PL02-1-000]


Critical Energy Infrastructure Information

September 5, 2002.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking and revised statement of policy.

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SUMMARY: The Federal Energy Regulatory Commission is proposing to 
revise its regulations to restrict public availability of critical 
energy infrastructure information. The Commission issued a policy 
statement in Docket No. PL02-1-000 on October 11, 2001, removing from 
easy public access previously public documents that detail the 
specifications of energy facilities licensed or certificated by the 
Commission.\1\ The Commission is revising this policy to include 
documents that detail specifications of

[[Page 57995]]

proposed energy facilities as well. The original policy statement 
directed requesters seeking this information to follow the Freedom of 
Information Act (FOIA) procedures found at 18 CFR 388.108. 
Specifically, the Commission proposes to change its regulations to 
restrict unfettered general public access to critical energy 
infrastructure information, but still permit those with a need for the 
information to obtain it in an efficient manner. The proposed new 
access procedures complement existing rights under the FOIA. Requesters 
retain the right to file a FOIA request for any information not 
available through the Public Reference Room, the Internet, or publicly-
accessible databases. The Commission also proposes establishment of a 
Critical Energy Infrastructure Information Coordinator to process and 
make decisions on non-FOIA requests for critical energy infrastructure 
information.
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    \1\ Statement of Policy on Treatment of Previously Public 
Documents, 66 FR 52917, Oct. 18, 2001.
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    An important objective of the proposed rule is the reconciliation 
of the Commission's regulatory responsibilities under its enabling 
statutes and Federal environmental laws and the need to protect the 
safety and well being of American citizens from attacks on our nation's 
energy infrastructure.
    Under the proposal, new sections will be added to Parts 375 and 388 
of Title 18 of the Code of Federal Regulations, and 18 CFR 388.112 will 
be revised to implement the new procedures.

DATES: Comments are due October 15, 2002.

ADDRESSES: File written comments with the Office of the Secretary, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426. Comments should reference Docket Nos. RM02-4-000 
and PL02-1-000. Comments may be filed electronically or by paper (an 
original and 14 copies, with an accompanying computer diskette in the 
prescribed format requested).

FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the 
General Counsel, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426, (202) 502-8521.

SUPPLEMENTARY INFORMATION:

Statement of Policy on Treatment of Previously Public Documents; Notice 
of Proposed Rulemaking and Revised Statement of Policy on Previously 
Public Documents

I. Introduction

    1. In this notice of proposed rulemaking (NOPR), the Federal Energy 
Regulatory Commission (Commission) proposes specific changes to the 
Commission's regulations to address the appropriate treatment of 
critical energy infrastructure information (CEII) in the aftermath of 
the September 11, 2001 terrorist attacks on the United States of 
America. Under the Policy Statement issued in Docket No. PL02-1-000 on 
October 11, 2001 (Policy Statement), the Commission removed from easy 
public access certain documents that previously had been public. See IV 
FERC Stats. & Regs. ] 35,542. On January 16, 2002, the Commission 
issued a Notice of Inquiry (NOI) in RM02-4-000 to determine what 
changes, if any, should be made to its regulations to restrict 
unfettered general public access to critical energy infrastructure 
information, but still permit those with a need for the information to 
obtain it in an efficient manner. See IV FERC Stats. & Regs. ] 35,542. 
The rule proposed here would reconcile the Commission's regulatory 
responsibilities under its enabling statutes and Federal environmental 
laws with the need to protect the safety and well-being of American 
citizens from attacks on our nation's energy infrastructure.
    2. The proposed rule would also offer a long-term and more 
efficient alternative to handling requests for previously public 
documents than does the Freedom of Information Act (FOIA), 5 U.S.C. 
552, which the Policy Statement established as the short-term method 
for requesting previously public documents. In the Commission's view, 
the FOIA process is not well suited in the long run for handling most 
requests for CEII. Information that fits within the proposed definition 
of CEII is exempt from mandatory disclosure under the FOIA. When 
determining whether to release information under the FOIA, the agency 
may not consider a requester's particular need for the information. 
Moreover, once the agency releases the information to one requester 
under the FOIA, it generally must release it to all requesters. In 
addition, the agency may not restrict the recipient's use or 
dissemination of that information. Therefore, if the Commission wishes 
to make otherwise exempt information available to a particular 
requester based on that requester's need for the information, or wishes 
to limit the recipient's use and dissemination of exempt information, 
it must do so outside of the confines of the FOIA. To that end, the 
Commission proposes to add Sec.  375.313 to its regulations to 
authorize a Critical Energy Infrastructure Information Coordinator to 
process non-FOIA requests for CEII and make determinations regarding 
such requests. Of course, requesters always retain the option of 
seeking information under the FOIA. Assuming that much of the 
information removed from public access will be exempt from mandatory 
disclosure under the FOIA, using the FOIA as the exclusive mechanism 
for determining release would mean that people with a need for the 
information likely would be denied access to exempt information.
    3. Finally, the Policy Statement specified that the Commission was 
removing from easy public access documents containing detailed 
specifications of energy facilities licensed or certificated by the 
Commission. The Commission has concluded that the more sensible 
approach is not to differentiate between proposed facilities and those 
that have been licensed or certificated; accordingly, the proposed rule 
would expand the definition of CEII to encompass proposed projects as 
well as certificated, licensed, or constructed projects. The Commission 
believes that this approach should also be followed while it considers 
the comments filed on the NOPR, and hereby revises the PL02-1 Policy 
Statement to restrict public access to documents containing detailed 
specifications of proposed facilities as well. The Commission also has 
decided that location information should not be treated as CEII, and 
will begin making such information publicly available as soon as 
practicable.

II. Background

A. The Policy Statement

    4. As noted, the September 11, 2001 terrorist attacks prompted the 
Commission to issue a policy statement on October 11, 2001, in PL02-1-
000, addressing the treatment of previously public documents. See 97 
FERC ] 61,030.\2\ The Commission announced there that it would no 
longer make available to the public through its Internet site, the 
Records and Information Management System (RIMS, which has been 
replaced by the Federal Energy Regulatory Records Information

[[Page 57996]]

System (FERRIS)), or the Public Reference Room, documents such as 
oversized maps that detail the specifications of energy facilities 
already licensed or certificated under Part I of the Federal Power Act, 
16 U.S.C. 719a, et seq., and Section 7(c) of the Natural Gas Act, 15 
U.S.C. 717f(c), respectively. Rather, anyone requesting such documents 
was directed to follow the procedures set forth in 18 CFR 388.108 
(Requests for Commission records not available through the Public 
Reference Room (FOIA Requests)). The Policy Statement also instructed 
staff to report back to the Commission within 90 days on the impact of 
this newly announced policy on the agency's business.
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    \2\ Shortly after the attacks, the Commission issued another 
policy statement in Docket No. PL01-6-000, in which it provided 
guidance to regulated companies regarding extraordinary expenditures 
necessary to safeguard national energy supplies. See 96 FERC ] 
61,299 (2001). The Commission recognized there that electric, gas, 
and oil companies may need to adopt new procedures, update existing 
procedures, and install facilities to further safeguard their 
systems, and that these efforts might result in extraordinary 
expenditures. The Commission assured these companies that it would 
give its highest priority to processing any filing made for the 
recovery of such expenditures.
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B. Implementation of the Policy Statement

    5. The Commission's experience subsequent to the issuance of the 
Policy Statement has naturally informed its decision here to issue a 
notice of proposed rulemaking. To implement the policy, the 
Commission's staff first disabled RIMS access to all oversized 
documents, which frequently contain detailed infrastructure 
information, and also removed them from the Public Reference Room. 
Staff next identified and disabled or denied access to other types of 
documents dealing with licensed or exempt hydropower projects, 
certificated natural gas pipelines, and electric transmission lines 
that appeared likely to include critical energy infrastructure 
information. This effort, which was undertaken as cautiously and 
methodically as possible, affected tens of thousands of documents.
    6. As of August 15, 2002, the Commission had received 188 FOIA 
requests for documents that previously had been public. Upon closer 
examination, the Commission's staff ascertained that seven of those 
requests involved documents that contained nothing critical, and 
released them accordingly. Staff contacted requesters in 29 other 
cases, and was able to negotiate to enable the requesters to obtain the 
documents directly from the companies which had created the documents 
or from the Commission subject to a non-disclosure statement.\3\ These 
requesters, who were frequently parties in relevant FERC proceedings or 
affected landowners, thus withdrew their requests. Seven others also 
withdrew their requests for no known reason, although a fair assumption 
is that they were able to obtain the requested documents from the 
document creators. The Commission has denied in whole or in part 138 
requests, invoking in particular FOIA Exemption 7F, 5 U.S.C. 
552(b)(7)(F), as well as Exemption 2, 5 U.S.C. 552(b)(2), and Exemption 
4, 5 U.S.C. 552(b)(4).\4\ To date, no one has filed an administrative 
appeal of the decisions to withhold documents, although the time for 
many of the recently processed ones is still running. Finally, the 
Commission is currently processing the remaining seven requests.\5\
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    \3\ Several of the early negotiated FOIA requests were from 
licensees or certificate holders themselves. These companies 
obviously are unique, as they must have certain information to 
comply with their licenses or certificates, and have an interest 
comparable to the Commission's to protect CEII. See discussion in 
NOI, IV FERC Stats. & Regs. ] 35,542 at p. 35,826. As a consequence, 
staff eventually began to deal directly with licensees and 
certificate holders outside of FOIA to ensure that they received the 
requisite information. Staff has also been working directly with 
other Federal agencies, which are not subject ``persons'' under the 
FOIA and, therefore, may not make FOIA requests. In this regard, 
where staff has released previously public documents, it has 
reminded the other Federal agencies of their obligation under the 
Federal Records Act, 44 U.S.C. sec. 3510(b), to treat the 
information as FERC would treat it, viz., as confidential.
    \4\ These exemptions are discussed in greater detail below. See 
also infra note 40 for a discussion of Commission action regarding 
FERC Form No. 715, requests for which constitute a major portion of 
the PL02-1 FOIA dockets.
    \5\ In addition, as discussed in the NOI at p. 35,826, the 
Commission has in effect granted a company's request to remove what 
in its view was critical infrastructure information which had not 
been removed from public access as part of the staff's efforts to 
implement the policy on previously public documents. See Williston 
Basin Interstate Pipeline Company, 97 FERC ] 61, 369 (2001). The 
Commission has also recognized that companies may seek waiver of any 
requirements to make critical energy infrastructure information 
widely available to the public. See Order on Interim Treatment of 
Information Collected in Form No. 715, 100 FERC ] 61,141, slip. op. 
at p. 7, n.3 (2002).
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C. The Notice of Inquiry

    7. Taking all these matters into consideration, the Commission 
issued a Notice of Inquiry (NOI) on January 16, 2002. See IV FERC 
Stats. & Regs. ] 35,542. The NOI set forth the Commission's general 
views on how it intends to treat previously public documents, and asked 
specific questions on the scope and implications of maintaining the 
confidentiality of certain documents that previously had been made 
public but were removed from easy public access on October 11, 2001. 
Approximately 50 entities responded to the NOI.\6\ A few respondents 
made at least a portion of their filings non-public.
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    \6\ The Appendix provides a list of respondents.
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    8. In addition, the Commission used the opportunity of the NOI to 
provide guidance on making filings with the Commission to the companies 
whose facilities could be the targets of terrorist attacks. Between 
January 2002 and the effective date of a final decision in Docket No. 
RM02-4-000, these companies were advised that they could seek 
confidential treatment of filings or parts of filings that, in their 
opinion, contain CEII. For this purpose, companies were directed to 
follow the procedures in 18 CFR 388.112, and also clearly note ``PL02-
1'' on the first page of the document.

III. Discussion

A. The Need for Action

    9. A threshold issue emerged from the responses as to whether the 
Commission should continue to protect CEII. Although some responses 
opposed the steps the Commission took in PL02-1 to protect 
information,\7\ the majority of the respondents supported the 
Commission's goal of increasing protection to the infrastructure, and, 
to varying degrees, the steps the Commission has taken to date.\8\ 
After careful consideration of the responses and its regulatory 
responsibilities, the Commission believes that it has an obligation to 
safeguard information vital to protect the nation's energy 
infrastructure. Accordingly, the Commission has decided to proceed with 
this NOPR, which clarifies the types of information that may be 
protected, proposes procedures for submitting and requesting 
confidential treatment of CEII, and suggests a method for handling 
challenges to CEII status.
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    \7\ See, e.g., American Library Association, Platts, and Public 
Citizen Litigation Group.
    \8\ See, e.g., Atlanta Gas Light Cos. at p. 2, Duke Energy 
Trading Group at p. 2, Duquesne Light Co. at p. 1, Edison Electric 
Institute at p. 4, New York State Public Service Commission at p. 2, 
NiSource Pipelines at p. 2, Public Utility District No. 1 of Chelan 
County, WA at p. 1, Reliant Resources, Inc. at p. 1, Southern 
California Edison Co. at p. 2, and Southern Co. Services, Inc. at p. 
4.
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B. Legal Authority To Protect CEII

1. Freedom of Information Act
    10. It was apparent from the responses received that the NOI did 
not sufficiently explain that the Commission intended to deny public 
access only to information that was exempt from disclosure under the 
FOIA. The Commission has no intention of adopting an approach that 
would ignore the agency's obligations under the FOIA, which requires 
that all non-exempt information to be made available to the public. 
Indeed, the discussion in the NOI was premised on the assumption that 
CEII would include only information exempt from disclosure under FOIA, 
and, with this in mind, invited comment on which

[[Page 57997]]

exemptions might be applicable to protect information that would be 
useful to those planning attacks on the energy infrastructure. 
Accordingly, as now discussed, most respondents expressed their views 
on the FOIA exemptions. Although a few respondents cited other 
exemptions,\9\ the following discussion focuses on the exemptions most 
likely to apply to CEII, namely Exemptions 2, 4 and 7.
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    \9\ See, e.g., Exemption 1 (EEI at p. 8, MidAmerican Energy Co. 
at p. 7, Southern Co. Services, Inc. at pp. 15-16, and Washington 
Legal Foundation at p. 6) and Exemption 5 (Bonneville Power 
Administration at p. 7).
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a. Exemption 2
    Exemption 2 exempts from disclosure ``records related solely to the 
internal personnel rules and practices of an agency.'' \10\ According 
to guidance from the Department of Justice (DOJ), ``[a]ny agency 
assessment of, or statement regarding, the vulnerability of such a 
critical asset should be protected pursuant to Exemption 2.'' \11\ DOJ 
has counseled agencies that ``a wide range of information can be 
withheld under Exemption 2's `circumvention' aspect.'' \12\ DOJ also 
has instructed agencies to take full advantage of the breadth of 
Exemption 2's protection for critical infrastructure information.\13\
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    \10\ 5 U.S.C. 552(b)(2).
    \11\ DOJ 2001 FOIA Post 19, posted October 15, 2001. DOJ is the 
Federal agency responsible for the administration of the FOIA.
    \12\ Id.
    \13\ Id.
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    11. Several respondents contended that CEII qualifies for 
protection under Exemption 2.\14\ Other respondents questioned whether 
Exemption 2 covers the types of information removed from public access 
under PL02-1.\15\ The Commission believes that a portion of the CEII 
removed from public access may be exempt from disclosure under 
Exemption 2 of FOIA. Illustratively, the Commission is expanding its 
efforts help facility owners and operators assess security risks and 
protect facilities from attack.\16\ Information developed or created by 
the Commission as part of these efforts is quite likely to fall within 
the ambit of Exemption 2. Documents describing inspections of regulated 
facilities likewise may fall within Exemption 2.
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    \14\ See, e.g., Central Maine Power at pp. 4-5, Exelon Corp. at 
p. 5, Mid-Continent Area Power Pool at p. 2, Member Systems at p. 6, 
MidAmerican Energy Co. at p. 7, and Southern Co. Services, Inc. at 
pp. 15-18.
    \15\ See, e.g., American Public Power Association at p. 9, 
Public Utilities Commissions at p. 5, Platts at p. 4, Public Citizen 
at pp. 4-5, Utilities Commission, City of New Smyrna Beach, Florida 
at p. 7, and Washington Legal Foundation at p. 5.
    \16\ The Commission has jurisdiction over the safety of 
hydroelectric projects under secs. 4(e), 10(a) and 10(c) of the 
Federal Power Act, 16 U.S.C. 797(e), 803(a), (c).
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b. Exemption 4
    12. Exemption 4 protects from public disclosure ``trade secrets and 
commercial or financial information obtained from a person and 
privileged or confidential.'' \17\ Most of the respondents who favored 
non-public treatment for CEII believed that such information was exempt 
from disclosure under Exemption 4.\18\ Again, there were a few 
respondents who questioned whether CEII was entitled to protection 
under Exemption 4.\19\ The Commission has determined that much of the 
information that may be withheld as CEII may fall within the scope of 
Exemption 4, because release of the information could cause competitive 
harm to submitters, impair the Commission's ability to obtain similar 
information in the future, or impair the effectiveness of the 
Commission's programs.
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    \17\ 5 U.S.C. 552(b)(4).
    \18\ See, e.g., Central Maine Power at pp. 4-5, Exelon at pp. 5-
6, Member Systems at p. 6, MidAmerican Energy Co. at p. 7, Reliant 
Energy HL & P at p. 11, Southern California Edison Co. at p. 9, 
Southern Company Services, Inc. at pp. 12, 15, 20-25, and Washington 
Legal Foundation at p. 6.
    \19\ See, e.g., American Public Power Association at pp. 9-10, 
Public Utility Commissions at p. 5, Platts at p. 4, Public Citizen 
at pp. 5-6, and Utilities Commission, City of New Smyrna Beach, 
Florida at p. 7.
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    13. Respondents raised two issues regarding the application of 
Exemption 4 to CEII. First, several respondents questioned whether the 
fact that this sort of information had been publicly available in the 
past undermines an argument that it is now confidential.\20\ As 
discussed in greater detail below, it does not. Americans live in a 
different world today than they did a year ago. Americans have had to 
face the harsh realities of terrorism on their soil. This has forced 
the nation to reassess its vulnerability to terrorist threats. 
Government agencies as well as private companies have had to reconsider 
the extent to which they make information freely available to others.
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    \20\ See e.g., American Public Power Association at pp. 9-10, 
and Public Citizen at pp. 5-6.
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    14. Specifically, under National Parks & Conservation Assoc. v. 
Morton, 49 F.2d 765 (D.C. Cir. 1974) and Critical Mass Energy Project 
v. NRC, 975 F.2d 871 (D.C. Cir. 1992), the initial inquiry in Exemption 
4 cases is whether the information was submitted to the government 
voluntarily or whether it was compelled to be submitted. For voluntary 
submissions, the information is entitled to protection if it ``would 
customarily not be released to the public by the person from whom it 
was obtained.'' \21\ This test understandably focuses on the 
submitter's current treatment of the information, not past treatment. 
Therefore, if, in the post-September 11 world, the company would not 
release the information to the public, the Commission should not 
release the information.
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    \21\ Critical Mass, 975 F.2d at 878.
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    15. For compelled submissions, there is a three-pronged test--the 
competitive harm prong, the impairment prong, and the program 
effectiveness prong. If any of the three tests is met, the information 
is exempt from mandatory disclosure under FOIA even though it may have 
been previously public.\22\ Under the competitive harm prong, there 
must be evidence of actual competition, and a likelihood of substantial 
competitive injury. See CNA Fin. Corp. v. Donovan, 830 F.2d 1132 (D.C. 
Cir. 1987). This inquiry tends to be fact specific, so it is not 
possible to identify with certainty which categories of information 
would meet the test. However, as utilities transition from monopolies 
to competitive markets, it may be easier for them to demonstrate actual 
competition. The inquiry would be whether the submitter is facing 
competition at the time the Commission received the request for the 
information, not whether there was competition when the information was 
first submitted to the Commission. If the competitive situation has 
changed, the likelihood of competitive harm would be analyzed using the 
current situation, not past conditions. Where competition is found to 
exist, the next issue is whether release of the information is likely 
to result in substantial competitive injury to the submitter. Again, 
the likelihood

[[Page 57998]]

of competitive injury would be examined at the time the Commission 
received the request for the information. Whether the information could 
have harmed the submitter two years earlier is irrelevant; what is 
relevant is whether release of the information at the time of the 
request would cause competitive harm to the submitter.\23\
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    \22\ While most of the submissions to a regulatory agency like 
FERC may appear to be compelled, this may not necessarily be the 
case. The D.C. Circuit in McDonnell Douglas Corp. v. NASA, 180 F.3d 
303, 305-06 (D.C. Cir 1999), questioned whether DOJ had taken an 
unduly restrictive interpretation of voluntarily submissions by 
instructing agencies to treat most information given to the 
government as required. DOJ itself has since recognized that the 
``existence of agency authority to require submission of information 
does not automatically mean such a submission is `required'; the 
agency authority must actually be exercised in order for a 
particular submission to be deemed `required.' '' DOJ Freedom of 
Information Act Guide & Privacy Act Overview, May 2002 ed., at 202. 
Courts have even found submissions to be voluntary where the agency 
had issued a subpoena but not sought to enforce it, see McDonnell 
Douglas Corp. v. EEOC, 922 F. Supp. 235 (E.D. Mo. 1996), and where 
the agency did not have authority to enforce the information 
collection because the information request violated the Paperwork 
Reduction Act, 44 U.S.C. 3501, see Center for Auto Safety v. NHTSA, 
244 F.3d 144 (D.C. Cir. 2001). At bottom, the question of whether 
the information has been submitted voluntarily or was compelled must 
be analyzed on a case by case basis.
    \23\ The Commission's analysis of a submitter's competitive 
situation under FOIA is not the same as, and indeed is less rigid 
than, the analysis it must perform to establish lack of market power 
for charging market based rates. For FOIA purposes, the competition 
requirement is satisfied if the submitter faces some level of actual 
competition. See Niagara Mohawk Power Corp. v. DOE, 169 F.3d 16, 19 
(D.D.C. 1999).
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    16. The test most frequently applied under the competitive harm 
prong is whether use of the information by competitors is likely to 
harm the submitter. See, e.g., CNA, 830 F.2d at 1152 & n.158; Public 
Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 
1983). This may be fairly challenging to demonstrate in the case of 
CEII because the primary concern is that the information could be used 
to plan an attack on the infrastructure, not that it could be used to 
steal customers or undercut prices. On the other hand, a submitter may 
be able to show competitive harm where use of the information by 
someone other than a competitor could cause financial harm to the 
submitter. Cf. McDonnell Douglas Corp. v. NASA, 180 F.3d 303, 306-07 
(D.C. Cir. 1999) (competitive harm where release of prices could be 
used by customers to negotiate lower prices). As relevant here, a 
terrorist attack on the energy infrastructure could cause financial 
harm to the owners and operators of the facilities because of lost 
opportunity costs as well as repair costs.
    17. For compelled submissions, the impairment prong is satisfied 
where disclosure may affect the reliability or quality of the 
information received.\24\ The more subjective the filing requirement, 
the more likely that disclosure of the information could impair the 
Commission's ability to get thorough and accurate information in the 
future. See Niagara Mohawk, 169 F.3d at 18 (holding that impairment is 
unlikely to be found where ``data sought appears to take the form of 
hard, cold numbers on energy use and production, the fudging of which 
may strain all but the deliberately mendacious.''). As noted by Edison 
Electric Institute (EEI), regulated entities may have discretion 
regarding how to construct their filings.\25\ If companies are worried 
that information they submit will be subject to public disclosure, they 
may choose not to submit the same level of detail that they might 
otherwise submit. In such circumstances, and assuming the submissions 
would otherwise comply with the Commission's regulations, the 
information may be exempt from disclosure under the impairment prong of 
Exemption 4.
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    \24\ Id.
    \25\ EEI at p. 42.
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    18. Critical Mass recognized that in addition to the competitive 
harm and impairment prongs, there may be other instances where non-
disclosure is warranted in order to protect other governmental 
interests, such as program effectiveness.\26\ Recently, in Public 
Citizen Health Research Group v. NIH,\27\ the district court relied on 
Critical Mass in determining that ``impairment of the effectiveness of 
a government program is a proper factor for consideration in conducting 
an analysis under'' Exemption 4. The court held that the National 
Institute of Health's royalty information was protected under Exemption 
4 because release of the information would make companies reluctant to 
enter into agreements with NIH, thus impairing the effectiveness of 
NIH's licensing program.\28\ The court reached a similar conclusion in 
Judicial Watch, Inc. v. Export-Import Bank, where release of certain 
financial information from foreign export credit agencies was held to 
be exempt from disclosure because release would make the credit 
agencies look for financing outside of the United States, undermining 
the agency's statutory purpose of fostering domestic economic growth by 
supporting export transactions.\29\
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    \26\ See Critical Mass, 975 F.2d 879 (``It should be evident 
from this review that the two interests identified in that National 
Parks test are not exclusive.'').
    \27\ No. 00-1847, 2002 U.S. Dist. LEXIS 7457, at *42 (D.D.C. 
Mar. 12, 2002) (alternative holding).
    \28\ Id. at *45-49.
    \29\ 108 F. Supp. 2d 19, 30 (D.D.C. 2000).
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    19. Applying these recent decisions here, release of CEII could 
threaten the effectiveness of the Commission's programs, which are 
meant to satisfy its mandate to regulate and oversee energy industries 
in the economic and environmental interest of the American public.\30\ 
Inappropriate release of CEII could make the infrastructure more 
vulnerable to attack, threatening those industries and resulting in 
potentially devastating economic and environmental consequences. As 
noted above, release of CEII also could make regulated entities less 
forthcoming in the information they provide to the Commission, 
especially where they have discretion as to what they submit. 
Restricted flow of information between the Commission and the companies 
could impair the Commission's programs that rely on such information. 
This is of particular concern in today's world, where the Commission is 
seeking additional information from licensees in order to help them 
better protect the infrastructure. Finally, release of CEII could harm 
the relationship between Commission staff and the regulated companies, 
impairing trust, and causing the parties to deal with each other in a 
more adversarial manner than necessary. For all of these reasons, much 
of the CEII could be exempt from disclosure under the third prong of 
Exemption 4 as it relates to compelled submissions.
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    \30\ See http://www.ferc.gov/About/mission/mission_intro.htm 
(2002).
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    20. A second issue raised by respondents regarding the 
applicability of Exemption 4 was whether the Trade Secrets Act would 
prohibit the Commission from sharing Exemption 4 material on an as-
needed basis. The Trade Secrets Act states in relevant part that:

    Whoever, being an officer or employee of the United States or of 
any department or agency thereof, publishes, divulges, discloses or 
makes known in any manner or to any extent not authorized by law any 
information coming to him in the course of his employment or 
official duties or by reason of any examination or investigation 
made by, or return, report or record made to or filed with, such 
department or agency or officer or employee thereof, which concerns 
or relates to trade secrets, processes, operations, style of work, 
or apparatus, or to the identify, confidential statistical data, 
amount or source of any income, profits, losses or expenditures of 
any person, firm, partnership, corporation, or association; * * * to 
be seen or examined by any person except as provided by law; shall 
be fined not more than $1,000, or imprisoned not more than one year, 
or both; and shall be removed from office or employment.

18 U.S.C. 1905. See Chrysler Corp. v. Brown, 441 U.S. 281, 301(1979). 
The Trade Secrets Act applies to formal agency actions as well as 
actions by the agency's individual employees. Courts have found that 
the coverage of the Trade Secrets Act and Exemption 4 are co-
extensive,\31\ meaning that the Trade Secrets Act generally prohibits 
release of information covered by Exemption 4.\32\ However, the Trade 
Secrets Act permits disclosure of trade secret information where 
``authorized by law.'' \33\ Accordingly, under the Trade Secrets Act, 
protected information may be released where there is statutory or 
regulatory authority for the agency to

[[Page 57999]]

release it. In cases where the authorization for release is found in an 
agency regulation, the inquiry is whether the regulation permitting the 
release is authorized by law.\34\
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    \31\ See, e.g., Bartholdi Cable Co. v. FCC, 114 F.3d 274 (DC 
Cir. 1997); CNA, 830 F.2d at 1152.
    \32\ CNA, 830 F.2d at 1151.
    \33\ Chrysler, 441 U.S. at 301.
    \34\ Id.
---------------------------------------------------------------------------

    21. The Commission has statutory authority to release trade secret 
information. While both the Federal Power and Natural Gas Acts place 
restrictions on an individual employee's release of information 
gathered in the course of examining records of a company, they permit 
the Commission itself to authorize such a release. The Federal Power 
Act provides:

    The Commission shall at all times have access to and the right 
to inspect and examine all accounts, records, and memoranda of 
licensees and public utilities, and it shall be the duty of such 
licensees and public utilities to furnish to the Commission, within 
such reasonable time as the Commission may order, any information 
with respect thereto which the Commission may by order require, 
including copies of maps, contracts, reports of engineers, and other 
data, records, and papers, and to grant to all agents of the 
Commission free access to its property and its accounts, records and 
memorandum when requested so to do. No member, officer, or employee 
of the Commission shall divulge any fact or information which may 
come to his knowledge during the course of examination of books or 
other accounts, as hereinbefore provided, except insofar as he may 
be directed by the Commission or by a court.

16 U.S.C. 825(b); see 15 U.S.C. 717g(b) (Natural Gas Act) and 
Commission regulation at 18 CFR 3c.2(a).
    22. In addition, sections 4 and 312 of the Federal Power Act 
authorize the Commission ``[t]o make public from time to time the 
information secured hereunder and to provide for the publication of its 
reports and investigations in such form and manner as may be best 
adapted for public information and use.'' 16 U.S.C. 797(d), 825k. 
Section 14 of the Natural Gas Act provides similar authorization. It 
states:

    The Commission may permit any person to file with it a statement 
in writing, under oath or otherwise, as it shall determine, as to 
any or all facts and circumstances concerning a matter which may be 
the subject of investigation. The Commission, in its discretion, may 
publish in the manner authorized in section 312 of the Federal Power 
Act * * * information concerning any such matter.

Because these provisions give the Commission broad discretion to 
release information, such release would be authorized by law under the 
Federal Power and Natural Gas Acts and, therefore, permitted under the 
Trade Secrets Act, creating an exception to the normal situation where 
the Trade Secrets Act prohibits release of information covered by 
Exemption 4. This, in turn, would permit the Commission to exempt the 
information from public FOIA disclosure under Exemption 4, and still 
disclose the information to selected individuals with appropriate 
restrictions on use and dissemination of that information without 
violating the Trade Secrets Act.
c. Exemption 7
    23. Exemption 7 exempts from disclosure certain information 
compiled for law enforcement purposes.\35\ For purposes of CEII, the 
most relevant Exemption 7 provision is 7(F), which allows information 
to be withheld in order to protect a person's life or physical safety. 
In order to invoke Exemption 7, the agency must be able to demonstrate 
that the document at issue involves enforcement of a statute or 
regulation that the agency is authorized to enforce. The Commission has 
very broad authority to enforce the provisions of the Federal Power Act 
and the Natural Gas Act. For instance, under the Federal Power Act, the 
Commission (1) monitors and investigates compliance with licenses, 
exemptions and preliminary permits it issues, 16 U.S.C. 823b; (2) 
determines just and reasonable rates, 16 U.S.C. 824e; and (3) ensures 
compliance with the Act and regulations issued thereunder, 16 U.S.C. 
825m, 825o-1. Similarly, with respect to natural gas, the Commission 
has broad authority (1) to determine whether rates and charges are just 
and reasonable, 15 U.S.C. 717c; and (2) to enforce violations of the 
statute or regulations issued thereunder, 15 U.S.C. 717s. Thus, given 
its broad enforcement authority, much of the information the Commission 
collects qualifies as information collected for a law enforcement 
purpose. For such law enforcement information to enjoy protection under 
Exemption 7(F), the release of the information must reasonably be 
expected to endanger a person's life or safety.
---------------------------------------------------------------------------

    \35\ 5 U.S.C. 552(b)(7).
---------------------------------------------------------------------------

    24. Since the tragic events of September 11, 2001, there have been 
repeated warnings that the energy infrastructure could be the target of 
terrorist attacks. In this regard, Southern California Edison Company 
cited an ABCNEWS.com report in February 2002, reporting that ``the FBI 
has within the past 24 hours issued an advisory to public utilities 
across the country warning that a computer from an alleged associate of 
Osama bin Laden contained engineering information about dams and 
reservoirs,'' and a New York Times article stating that ``computers 
that control the electric power system around the nation have been 
probed from the Middle East.'' \36\ These are only a sample of warnings 
issued relating to the energy infrastructure. These types of reports 
show that there is a strong likelihood that such facilities are being 
considered as potential targets for attack.
---------------------------------------------------------------------------

    \36\ Southern California Edison Co. at p. 10.
---------------------------------------------------------------------------

    25. Given that an attack on the energy infrastructure is a 
legitimate threat, the Commission believes that release of information 
that could facilitate or increase the likelihood of the success of such 
an attack could be expected to endanger life and safety of people. The 
failure of a dam could cause flooding that would endanger lives, as 
could the explosion of a natural gas pipeline. Interruptions to gas and 
electric power supplies likewise could endanger lives of those reliant 
on power, especially in times of extreme hot or cold weather. For these 
reasons, the Commission believes that information identified as CEII 
may qualify for protection under Exemption 7(F).
2. Substantive Statutes
    26. The NOI asked whether there were statutes other than FOIA that 
require that certain information be made available to the public by the 
Commission. Most of the respondents' objections to protecting CEII were 
related to FOIA, or to the general public's right to the 
information.\37\ Few, if any, cited substantive statutes that 
purpportedly prohibit restrictions on release of CEII.\38\ While 
certain statutory provisions appear to require that information be made 
available to the public, no respondent could point to a substantive 
statutory provision that would constrain the Commission's exercising 
its discretion in determining exactly how to make the information 
available to the public. For instance, as

[[Page 58000]]

noted by EEI,\39\ while Federal Power Act sec. 15 requires licensees to 
make certain data ``reasonably available to the public for inspection'' 
at their offices, 16 U.S.C. 808(b)(2), the Commission has the 
discretion to define exactly what information is covered and how it is 
to be made available. Similarly, while Federal Power Act sec. 213, 16 
U.S.C. 824, states that the Commission ``shall promulgate a rule 
requiring that information be submitted annually to the Commission by 
transmitting utilities which is adequate to inform potential 
transmission customers, State regulatory authorities, and the public of 
potentially available transmission capacity and known constraints,'' 
that section imposes no requirement on the Commission to disseminate 
the information in any particular manner.\40\ Accordingly, the 
Commission believes that there is no statutory impediment to its 
protecting CEII.\41\
---------------------------------------------------------------------------

    \37\ See, e.g., American Library Association at pp. 1-2, OMB 
Watch at p. 2, Platts at p. 3, Public Citizen at p. 3, and Reporters 
Committee for Freedom of the Press at pp. 2-3.
    \38\ See, e.g., Platts at p. 5 (``[T]he Natural Gas Act provides 
for publicly available filings for rates, for new construction and 
for applications for certificates of public convenience and 
necessity. 15 U.S.C. 717c, f, and i.''). None of these provisions, 
however, prohibits the Commission's withholding of CEII. The 
Commission is not withholding as CEII any information required to be 
publicly available under 15 U.S.C. 717c. The Commission has broad 
discretion under 17 U.S.C. 717f(d) to determine whether and how 
information related to certificate applications will be 
disseminated. Similarly, under 17 U.S.C. 717i(a), ``[t]he Commission 
may prescribe the manner and form in which such reports shall be 
made * * *''
    \39\ EEI at pp. 15-16.
    \40\ The Commission recently issued an order in RM93-10-000 
temporarily suspending the Commission's practice of making publicly 
available CEII in Form No. 715, Annual Transmission Planning and 
Evaluation Report, which was promulgated to satisfy the Commission's 
requirements under Federal Power Act sec. 213(b). See Order on 
Interim Treatment of Information Collected in Form No. 715, 100 FERC 
] 61,141 (2002). The Commission noted there that while this was 
inconsistent with its past practice, it concluded that the step was 
allowable under its regulations at 18 CFR 141.300, which require 
transmitting utilities to file the Form No. 715 annually with the 
Commission, and to make their Form No. 715s available to the public. 
Neither the regulation nor the instructions associated with the form 
require that the entire form be made publicly available directly 
from the Commission.
    \41\ Several respondents suggested that the Commission review 
the CEII information it collects to determine whether it is 
necessary to collect it. The Commission is committed to examining 
information collections to see if there are situations where 
collection of CEII can be reduced.
---------------------------------------------------------------------------

C. Definition of CEII

1. Consideration of Facilities' Size
    27. Many of the respondents who approved protecting CEII proffered 
definitions of the term. For instance, the Adirondack Mountain Club 
recommended a size threshold for protection of projects, suggesting 
that relevant information be released for hydropower projects under 5 
MW.\42\ Similarly, Atlanta Gas Light Company proposed an approach that 
took into consideration the size and operating pressure of the facility 
as well as the impact that the loss of service would have in 
determining whether to protect information regarding a particular 
facility.\43\ A problem with any approach that distinguishes among 
facilities and protects only information regarding large or 
particularly critical facilities is that it highlights for would-be 
terrorists those facilities that would be the best targets. That is 
obviously not an option. Therefore, rather than defining CEII in terms 
of a facility's size or vulnerability, the Commission proposes in Sec.  
388.113(c)(1) to define CEII, in part, in FOIA terms, thereby 
clarifying that the Commission is withholding only information that is 
entitled to protection under the FOIA.
---------------------------------------------------------------------------

    \42\ See Adirondack Mountain Club at p. 1.
    \43\ Atlanta Gas Light Company at pp. 3-4.
---------------------------------------------------------------------------

2. Existing Facilities Versus Proposed Facilities
    28. The NOI requested responses on whether the Commission should 
continue to protect only information about licensed, exempted, 
certificated, and built facilities, or extend CEII protection to 
proposed facilities. The majority of respondents who favored protecting 
CEII argued that such protection should be extended to proposed 
facilities.\44\ Atlanta Gas Light Company stated, for example, that 
``without restrictions on access to information regarding proposed 
facilities, existing facilities would also be compromised from the 
interconnection point with the new facilities.'' \45\ Others noted that 
once the information is in the public domain, it is not possible to 
retrieve it when the license or certificate is issued.\46\
---------------------------------------------------------------------------

    \44\ See, e.g., Atlanta Gas Light Co. at p. 6, EEI at p. 5, 
Exelon Corp. at pp. 1-3, Maine Public Utilities Commission at p. 3, 
and Southern Co. Services, Inc. at p. 11.
    \45\ Atlanta Gas Light Company at p. 6.
    \46\ See, e.g., Southern Co. Services, Inc. at p. 11.
---------------------------------------------------------------------------

    29.Based on review of the comments and its experience with 
implementation of PL02-1, proposed Sec.  388.113(c)(1) includes 
information regarding proposed facilities in the definition of CEII. 
The major concern initially about withholding information about 
proposed projects was that people might not be able to participate 
effectively in the National Environmental Policy Act (NEPA) process. 
The Commission, of course, has no intention of letting that happen. 
Accordingly, the Commission proposes to alter its current practice and 
no longer protect location information. In addition, the Commission 
proposes to establish means for affected landowners and other parties 
to obtain necessary information for them to participate effectively in 
the Commission proceedings. As discussed below in III.C.3 and III.D., 
these proposals should help avoid any negative impact on Commission 
proceedings.
3. Information on Location of Facilities
    30. The NOI asked to what extent the Commission should protect 
location information. Some respondents maintained that location 
information and other information that is available from other sources 
or from visual observation should not be considered to be CEII.\47\ 
Reliant Energy HL & P and others, however, voiced concern over 
releasing such information.\48\ The Commission has concluded that there 
is little to be gained by protecting information that can be gleaned 
from a visual inspection of the facility, or that is otherwise easily 
attainable from other sources, such as the United States Geological 
Survey or commercial mapping firms. Even where location information may 
not be readily available elsewhere, the public often wants to know 
specifically where these facilities are located, especially to the 
extent that they may pose a potential threat to health, safety, 
property, or the environment. In addition, it is difficult, if not 
impossible, to conduct a thorough NEPA review without providing 
specific information about the location of facilities. For the 
foregoing reasons, proposed Sec.  388.113(c)(1)(iv) excludes from the 
definition of CEII information that simply gives the location of 
critical infrastructure.
---------------------------------------------------------------------------

    \47\ See, e.g., American Superconductor Corporation at pp. 1-3, 
Central Maine Power at p. 3, State Commissions (Public Utilities 
Commission of Ohio, Oklahoma Corporation Commission, and Michigan 
Public Service Commission) at p. 11, PJM Interconnection, L.L.C. at 
p. 7, Southern California Edison Company at p. 5, and Utilities 
Commission, City of New Smyrna Beach, Florida at p. 2.
    \48\ Reliant argued that location information should be 
protected and that ``it should be irrelevant whether information is 
contained on a commercial map.'' Reliant at p. 4. See also EEI at p. 
6.
---------------------------------------------------------------------------

4. Elements of CEII Definition
    31. In light of these considerations, proposed Sec.  388.113(c)(1) 
defines CEII as information about proposed or existing critical 
infrastructure that (i) relates to the production, generation, 
transportation, transmission, or distribution of energy, (ii) could be 
useful to persons in planning an attack on critical infrastructure, 
(iii) is exempt from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552, and (iv) does not simply give the 
location of the critical infrastructure. Proposed Sec.  388.113(c)(2), 
in turn, defines ``critical infrastructure'' as ``systems and assets, 
whether physical or virtual, that are so vital to the United States 
that the incapacity or destruction of such systems or assets would have 
a debilitating impact on the security, national economic security, 
national public health or safety, or any

[[Page 58001]]

combination of those matters.'' The Commission has chosen this meaning 
of the term ``critical infrastructure'' because it appropriately 
reflects the same definition contained in sec. 1016(d) (Critical 
Infrastructure Protection Act of 2001) of the Uniting and Strengthening 
America by Providing Appropriate Tools Required to Intercept and 
Obstruct Terrorism Act (USA PATRIOT Act) Pub. L. No. 107-56. As 
especially relevant, this Act considers the energy infrastructure to be 
vital to the United States by explicitly finding that ``[p]rivate 
business, government, and the national security apparatus increasingly 
depend on an interdependent network of critical physical and 
information infrastructures, including telecommunications, energy, 
financial services, water and transportation sectors.'' Pub. L. 107-56, 
sec. 1016(b)(2) (emphasis added).\49\
---------------------------------------------------------------------------

    \49\ Examples of the types of information that may qualify for 
CEII protection include pipeline flow diagrams, inspection reports, 
detailed layouts of facility structures, emergency action plans 
(EAPs) and EAP test reports, and portions of FERC Form No. 715, 
Annual Transmission Plan and Evaluation Report.
---------------------------------------------------------------------------

D. Requester's Status and Need for the Information

    32. An overwhelming majority of respondents claimed that Federal 
requesters, owners/operators and their agents, interveners, and state 
agencies should have access to CEII.\50\ Many also approved of access 
by affected landowners. In addition, most respondents suggested that 
the Commission condition access on a requester's willingness to sign a 
non-disclosure agreement.\51\ Conversely, many respondents objected to 
the media's receiving CEII because they would undoubtedly refuse to 
limit disclosure of the information. The same concern arose to a lesser 
extent with respect to third-party requesters.\52\
---------------------------------------------------------------------------

    \50\ See, e.g., Blue Ridge Power Agency at p. 3, Atlanta Gas 
Light at pp. 6-8, and Adirondack Mountain Club at p. 10.
    \51\ See, e.g., American Transmission Co. at p. 5, Atlanta Gas 
Light Co. at p. 12, Mid-Continent Area Power Pool at p. 2, Member 
Systems at p. 5, MidAmerican Energy Co. at p. 2, Reliant HL & P at 
pp. 9-10, Southern California Edison Co. at p. 8, Southern Co. 
Services, Inc. at p. 2, Williston Basin Interstate Pipeline Co. at 
p. 29, Duquesne Light Co. at p. 2, EEI at p. 8, and Public Utility 
District No. 1 of Chelan County, Washington at p. 2.
    \52\ See, e.g., Atlanta Gas Light Co. at p. 13.
---------------------------------------------------------------------------

    33. The respondents who disagreed with restricting access to CEII 
generally argued that everyone should be given access to this 
information, and that access should not be restricted to those with a 
specific need or those who are willing to sign a nondisclosure 
agreement.\53\ OMB Watch argued that the public does not have to 
demonstrate a need to know in order to get information under the 
FOIA.\54\ Several parties contended that the best ways to protect the 
infrastructure are to facilitate infrastructure expansion and to make 
the markets function effectively. They claimed that free access to 
CEII-type information is key to both of these things, and that 
potential investors need to know where there is a need for new 
capacity. Potential buyers and sellers of power, they contended, also 
need to know what is available in the market.\55\
---------------------------------------------------------------------------

    \53\ See, e.g., Platts at pp. 5, 17-19, and Reporters Committee 
for Freedom of the Press at pp. 7-8.
    \54\ See OMB Watch at pp. 2-3.
    \55\ See, e.g., American Public Power Association at p. 6, 
Platts at p. 33, and Utilities Commission, City of New Smyrna Beach, 
Florida at pp. 2-6.
---------------------------------------------------------------------------

    34. The Commission may take a requester's status into consideration 
if the request is not made pursuant to the FOIA and its FOIA 
regulations, because, as OMB Watch pointed out, only FOIA precludes a 
requester's status from being taken into account. See OMB Watch at p. 
2. This is no different from the Commission's consideration of a 
person's status in a docketed proceeding, where it does not, for 
example, entertain rehearing requests from someone who has not timely 
intervened in the case. See Panhandle Eastern Pipe Line Co., 78 FERC ] 
61,180 (1997). The important point here is that anyone, regardless of 
status, may always request information under the Commission's FOIA 
regulations. A person's status would be considered only to ascertain 
eligibility to receive information through the optional procedures for 
accessing CEII as laid out in proposed Sec.  388.113(d). Pivotal to 
that determination would be the person's need for the information.
    35. Specifically, proposed Sec.  388.113(d)(1) provides that an 
owner/operator of an energy facility may always have access to 
information concerning that facility, and may receive the information 
directly from staff without using the FOIA or CEII procedures. This 
exemption reflects the obvious need that an owner/operator has for 
information to operate his facility and to comply with the law and the 
terms and conditions of the authorizing instrument. This exemption also 
reflects the Commission's view that owners/operators have as much 
interest in protecting their assets, employees, and other property and 
people as the Commission does. Next, proposed Sec.  388.113(d)(2) 
provides than an agent of an owner/operator needs to obtain the 
information from the owner/operator, who would either have the 
information because it created the document or would be able to obtain 
the information from the Commission pursuant to proposed Sec.  
388.113(d)(1).
    36. For all other non-FOIA requests, proposed Sec.  388.113(d)(3) 
sets forth a process where requesters would provide to a CEII 
Coordinator detailed information about themselves and their need for 
the information, which the CEII Coordinator would use in determining 
whether to release the information. Such need would be implicated, for 
example, if the requester is an intervener in a proceeding or a 
landowner affected by a proposed facility. Obviously, such individuals 
must have access to information to participate meaningfully in the 
proceeding.
    37. To enable the CEII Coordinator to make these determinations on 
a timely basis, and to ensure that requesters' rights are adequately 
protected, the Commission proposes, in Sec.  375.313, to delegate the 
authority to make need determinations to the staff member designated as 
the CEII Coordinator. Accordingly, a non-FOIA requester would not have 
to file a motion with the Commission as it would otherwise be required 
to do outside the FOIA process. As action on motions is discretionary, 
the requester would not have any assurance, given the Commission's 
extraordinary caseload, as to when it would receive an answer. In 
contrast, under proposed Sec.  388.113(d)(3)(iii), the requester would 
receive a response in accord with the timing associated with FOIA 
requests, viz., 20-30 business days depending on whether an extension 
is warranted. See 18 CFR 388.108(c). Furthermore, as action taken by 
the CEII Coordinator would be subject to rehearing by the Commission 
itself, as is true for all delegated matters, a requester would always 
be able to plead its case accordingly.
    38. Finally, the Commission believes that market participants will 
be able to get access to the information they need without the 
Commission making the information available to the general public. As 
discussed above, they can seek access under Sec.  388.113. In addition, 
as several respondents noted, much of the same sort of information is 
still available, albeit perhaps in slightly different form. For 
instance, Southern Company Services, Inc. pointed out that ``for all 
practical purposes, the information contained in some of these filings 
[that have been removed from public access under PL02-1-000] is now 
being provided on OASIS, on a more timely basis and in a more useful 
format, thereby obviating the need for

[[Page 58002]]

certain forms.'' \56\ Even respondents who did not agree with the 
Commission's current approach recognized that much of the same type of 
information is available elsewhere. The significance here for 
protecting CEII is that the FERC would not be making the information 
available to everyone on the Internet.
---------------------------------------------------------------------------

    \56\ Southern Company Services, Inc. at p. 3.
---------------------------------------------------------------------------

E. Verification and Access Issues

    39. Most respondents who approved of limited access to CEII also 
approved of the use of Passwords, IDs, PINs, etc.\57\ Others suggested 
use of outside experts (e.g., the Federal Bureau of Investigation and 
the Office of Homeland Security) to verify identity of requesters. At 
this time, the Commission does not believe that the use of outside 
experts is necessary. The majority of market participants are well 
known to the Commission, and therefore relatively easy to verify.
---------------------------------------------------------------------------

    \57\ See, e.g., Atlanta Gas Light Co. at p. 10, EEI at p. 11, 
Electric Power Supply Assoc. at p. 4, Member Systems at p. 5, 
Southern California Edison Co. at p. 7, Reliant Energy HL & P at p. 
7, and Williston Basin Interstate Pipeline Co. at p. 25.
---------------------------------------------------------------------------

    40. The NOI also inquired whether the Commission should verify an 
organization and leave it up to the organization to verify its own 
users, or whether the Commission should verify each user separately. 
While it would be easier to administer the program if the Commission 
does not have to keep track of all individual users within a particular 
organization, for the time being the Commission proposes to control all 
access to the information. This should help ensure a consistent 
approach, and will enable the Commission to account for disclosures 
made.
    41. The NOI also raised the issue of whether elimination of all 
Internet access to CEII would be sufficient to protect CEII. 
Elimination of all Internet access was not widely endorsed as the sole 
method of protecting CEII. Similarly, few respondents favored the idea 
of requiring various levels of verification depending on how a 
requester sought to access the information (via Internet, mail, in 
person, etc.).\58\ For those reasons, the Commission is not proposing 
such approaches.
---------------------------------------------------------------------------

    \58\ See, e.g., Atlanta Gas Light Co. at p. 10, Reliant Energy 
HL & P at p. 8, and Southern California Edison Co. at p. 8.
---------------------------------------------------------------------------

    42. Another issue is whether the Commission should give certain 
``frequent customers'' generic approval to access CEII, or whether the 
Commission should require new authorization whenever an entity or 
person wants CEII on a new matter. Many respondents thought access 
should be based on a need to know, and that need to know should be 
established for each docket involving CEII.\59\ Others contended that 
frequent participants should be granted a generic clearance to obtain 
CEII.\60\ Although some of the administrative burden on requesters and 
staff would be reduced if some entities could be given generic access, 
for now, the Commission proposes to require requesters to submit 
separate requests for CEII relating to different proceedings. In this 
way, a requester's need for information relating to a particular 
proceeding may be evaluated, and the number of people getting access to 
CEII in any given matter may be limited, lessening the likelihood that 
the information will reach someone with bad intentions.
---------------------------------------------------------------------------

    \59\ See, e.g., Public Utility District No. 1 of Chelan County, 
Washington at p. 2, American Transmission Co. at p. 5, Atlanta Gas 
Light Co. at pp. 6-7, EEI at p. 8, PJM Interconnection, L.L.C. at p. 
7, and Southern California Edison Co. at p. 7.
    \60\ See, e.g., Blue Ridge Power Agency at p. 7.
---------------------------------------------------------------------------

F. Use of Non-Disclosure Agreements

    43. Related to a requester's need to know is the issue of whether 
requesters should have to sign non-disclosure agreements (NDAs) as a 
condition of accessing CEII. Most respondents commented that the 
majority of recipients should sign NDAs, although several believed that 
owner/operators (and sometimes their agents/representatives) should not 
have to sign NDAs to receive information about their own facilities. 
Given that owners/operators have incentives to protect CEII, the 
Commission does not propose to require them to sign NDAs. The 
Commission also does not intend to require representatives of owner/
operators to sign NDAs; however, as provided in proposed Sec.  
388.113(d)(2), the representatives must obtain CEII directly from or 
through the owners/operators rather than from the Commission.
    44. The Commission also does not propose to require other Federal 
agencies to sign NDAs before receiving CEII. The reason is that 44 
U.S.C. 3510(b) binds employees of other agencies to protect information 
that is protected by the originating agency, so an NDA would not be 
required where the Commission shares CEII with another Federal agency. 
A more difficult issue pertains to state agency requesters. Respondents 
rightly are concerned about state agencies' ability to agree to NDAs 
given state FOIA laws that may compel disclosure of information.\61\ In 
other words, while a state requester may have the best intentions to 
protect CEII, state law may mandate release of the information obtained 
from the Commission. As a general matter, however, Federal law preempts 
state law. Thus, the Federal FOIA law may trump state FOIA law where 
the information at issue is Federal information. The Commission invites 
comments on whether it would be appropriate to permit use of a modified 
NDA for state agency representatives wherein they would agree to 
protect the information to the extent permitted by Federal law. Another 
option might be for the Commission to reserve control of CEII documents 
``on loan'' to state agencies, potentially taking the documents outside 
of the state FOIA law.\62\
---------------------------------------------------------------------------

    \61\ See, e.g., Atlanta Gas Light Co. at p. 8 and Williston 
Basin Interstate Pipeline Co. at p. 23.
    \62\ See United States v. Napper, 887 F.2d at 1530 (11th Cir. 
1989) (F.B.I. could retrieve requested documents loaned to local 
government agency, taking documents outside the reach of the non-
Federal FOIA statute.)
---------------------------------------------------------------------------

    45. Most respondents thought the Commission should negotiate the 
NDAs with requesters, while a few thought that a CEII submitter should 
negotiate an agreement with the requester.\63\ There may be too much 
potential for charges of discriminatory treatment if the Commission 
leaves it to the discretion of the owner/operator whether to provide 
information, and under what conditions to provide it. For that reason, 
and for the sake of consistency, the Commission proposes in Sec.  
388.113(d)(3)(ii) to handle negotiation of all NDAs. Accordingly, that 
proposed section directs the CEII Coordinator to evaluate a requester's 
need for the information and propose terms for the NDA, where 
appropriate. That said, there is nothing to prevent someone from 
attempting to obtain CEII directly from the submitter, but the 
submitter would be under no obligation to agree to provide the 
information directly to the requester unless there is an independent 
obligation to do so.
---------------------------------------------------------------------------

    \63\ See, e.g., Duquesne Light Co. at p. 3, Exelon Corp. at p. 
4, Southern California Edison Co. at p. 8, and Reliant Energy HL & P 
at p. 9.
---------------------------------------------------------------------------

G. Submission of CEII to the Commission

    46. The Commission's existing regulations at 18 CFR 388.112 provide 
a process for filers to submit documents with a request for privileged 
treatment. The Commission proposes to amend Sec.  388.112 to clarify 
that claims for privileged treatment should indicate whenever a filing 
contains CEII.\64\ Because the Commission proposes to

[[Page 58003]]

adopt the approach in Sec.  388.112 for filing CEII, it does not 
specify how the filer should segregate or redact non-public information 
from the rest of the filing. As with non-CEII, the filer must in the 
first instance decide whether to have a separate non-public appendix, 
or to just redact non-public information from the filing. While filers 
must take their obligation to protect CEII seriously, the Commission 
cautions that it will not tolerate filers invoking CEII inappropriately 
by sweeping non-CEII (or other legitimate confidential information) 
under the CEII heading. Such abuse of the CEII process could dilute its 
effectiveness by numbing the staff and parties to the importance of 
protecting the information. If the Commission finds that filers are not 
being careful in their submittals, especially if there is any evidence 
of a pattern of inappropriate claims of privileged treatment, the 
Commission will take steps to discipline those filers.
---------------------------------------------------------------------------

    \64\ Because necessary revisions to Sec.  388.112 are woven 
throughout, the section is reproduced in whole.
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H. Challenges to CEII Status

    47. Most respondents maintained that 18 CFR 388.112 provides a 
satisfactory vehicle for challenges to claims for CEII status.\65\ The 
Commission agrees, and in Sec.  388.112(a) clarifies that people filing 
documents containing CEII should follow the procedures in Sec.  
388.112. Respondents also indicated that the Commission should broaden 
Sec.  388.112 to clarify that it covers exemptions other than just 
Exemption 4.\66\ For example, Sec.  388.112(e) currently is limited to 
situations where a FOIA requester brings suit to gain access to 
confidential commercial information, the type normally exempt under 
Exemption 4. The Commission agrees that the rule should be broadened to 
cover all requests for privileged information, and proposes to revise 
the regulation at Sec.  388.112(a) and (e) to make clear that it 
applies to any information exempt from mandatory release under FOIA. 
Finally, respondents also urged that all procedural steps in Sec.  
388.112 should be followed for challenges to CEII status. The 
Commission agrees in part. The procedures should apply where staff on 
its own initiative questions the applicability of CEII status, or where 
there is a non-FOIA request through the CEII Coordinator. For this 
reason, the Commission is revising Sec.  388.112(d) and (e) to apply to 
both FOIA requests and other CEII requests. However, the provision in 
388.112(f) regarding notification of suit in Federal courts is not 
being revised to apply to CEII requests. Because any suit regarding 
CEII in Federal court would be brought under the Federal Power Act, the 
Natural Gas Act, or another enabling statute, jurisdiction would be in 
the United States Courts of Appeals.\67\ Accordingly, under Rule 15(c) 
of the Federal Rules of Appellate Procedure, a petitioner seeking 
review of a Commission order must serve a copy of the petition on all 
parties in the Commission proceeding. Therefore, no modification to 
Sec.  388.112(f) is necessary.
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    \65\ See, e.g., Exelon Corp. at p. 6, and Southern California 
Edison Co. at pp. 11-12.
    \66\ See, e.g., Southern Co. Services, Inc. at pp. 24-25.
    \67\ Review of the CEII Coordinator's decision to deny access to 
CEII would not be handled under the FOIA procedures unless the 
request for access was made pursuant to the FOIA. A CEII requester 
who uses the process in Sec.  388.113 instead of the FOIA may seek 
rehearing of the CEII Coordinator's decision under 18 CFR 385.713. 
After exhausting administrative remedies, the requester may seek 
review of the Commission's decision in the United States Court of 
Appeals. Under the Department of Energy Organization Act, the 
Commission's Solicitor represents the Commission in such actions. 
See 42 U.S.C. 7171(i) (``[A]ttorneys designated by the Chairman of 
the Commission may appear for, and represent the Commission in, any 
civil action brought in connection with any function carried out by 
the Commission pursuant to this chapter or as otherwise authorized 
by law.'')
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IV. Information Collection Statement

    48. Office of Management and Budget (OMB) regulations require OMB 
to approve certain information collection requirements imposed by 
agency rule.\68\ The following collection of information contained in 
this proposed rule has been submitted to the Office of Management and 
Budget (OMB) for review under Section 3707(d) of the Paperwork 
Reduction Act of 1995. FERC identifies the information provided for 
under Part 388.113 as FERC-603.
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    \68\ 5 CFR 1320.12.
---------------------------------------------------------------------------

    49. Comments are solicited on the need for this information, 
whether the information will have practical utility, the accuracy of 
the provided burden estimates, ways to enhance the quality, utility, 
and clarity of the information to be collected, and any suggested 
methods for minimizing respondents' burden, including the use of 
automated information techniques. The following burden estimates 
include the cost of preparing and submitting a CEII data request in 
order to comply with the Commission's proposed regulations.
    Public Reporting Burden: Estimated Annual Burden:

----------------------------------------------------------------------------------------------------------------
                                                 Number of        Number of        Hours per       Total annual
               Data collection                  respondents       responses         response          hours
----------------------------------------------------------------------------------------------------------------
FERC-603....................................             200              200              .25               50
----------------------------------------------------------------------------------------------------------------

    Total Annual Hours for Collection (reporting + recordkeeping, if 
appropriate): 50 hours.
    Information Collection Costs: The Commission seeks comments on the 
cost to comply with these requirements. It has projected the average 
annualized cost of all respondents to be: Annualized Capital Startup 
Costs: The Commission estimates that to respond to this information 
collection will be a one-time cost of $12.50 per respondent. (50 hours 
@ $50 hourly rate / 200).
    Title: FERC-603, CEII Data Request.
    Action: Proposed Data Collection.
    OMB Control No.: To be determined.
    The applicant shall not be penalized for failure to respond to this 
collection of information unless the collection of information displays 
a valid OMB control number or the Commission has provided justification 
as to why the control number should not be displayed.
    Respondents: Businesses or other for profit; Individuals or 
households; Not for profit institutions, and/or State, Local or Tribal 
Governments.
    Frequency of Responses: On occasion.
    Necessity of the Information: The proposed rule would revise the 
Commission's regulations to provide an alternative process to the 
Freedom of Information Act for requesting CEII. The Commission is 
proposing a process where requesters will provide basic information 
about themselves and explain their need for the information, which the 
Commission will factor into a determination as to whether to release 
the information. The purpose of the process is to provide information 
to individuals who need it to participate in the Commission's 
proceedings, but who might not otherwise have access to the information 
under FOIA.
    50. Interested persons may obtain information on the reporting 
requirements by contacting the following: Federal Energy Regulatory

[[Page 58004]]

Commission, 888 First Street, NE., Washington, DC 20426 [Attention: 
Michael Miller, Office of the Chief Information Officer, Phone (202) 
502-8415, fax: (202) 208-2425, E-mail: [email protected].] For 
submitting comments concerning the collection of information(s) and the 
associated burden estimate(s), please send your comments to the contact 
listed above and to the Office of Management and Budget, Office of 
Information and Regulatory Affairs, Washington, DC 20503, [Attention: 
Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 
395-7856, fax: (202)395-7285].

V. Environmental Analysis

    51. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\69\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment. Included in the exclusions are rules that are clarifying, 
corrective, or procedural or that do not substantively change the 
effect of the regulations being amended.\70\ This proposed rule, if 
finalized, is procedural in nature and therefore falls under this 
exception; consequently, no environmental consideration would be 
necessary.
---------------------------------------------------------------------------

    \69\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs. Preambles 1986-1990 ] 30,783 (1987).
    \70\ 18 CFR 380.4(a)(2)(ii).
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VI. Regulatory Flexibility Act Certification

    52. The Regulatory Flexibility Act of 1980 (RFA) \71\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Commission is not required to make such analyses if a rule would 
not have such an effect. The Commission certifies that this proposed 
rule, if finalized, would not have such an impact on small entities.
---------------------------------------------------------------------------

    \71\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

VII. Comment Procedures

    53. The Commission invites interested persons to submit written 
comments on the matters and issues proposed in this notice to be 
adopted, including any related matters or alternative proposals that 
commenters may wish to discuss. Comments are due October 15, 2002. 
Comments must refer to Docket Nos. PL02-1 and RM02-4, and may be filed 
either in electronic or paper format. Those filing electronically do 
not need to make a paper filing.
    54. Documents filed electronically via the Internet may be prepared 
in a variety of formats, including WordPerfect, MS Word, Portable 
Document Format, Rich Text Format, or ASCII format, as listed on the 
Commission's Web site at http://ferc.gov, under the e-Filing link. The 
e-Filing link provides instructions for how to Login and complete an 
electronic filing. First time users will have to establish a user name 
and password. The Commission will send an automatic acknowledgment to 
the sender's E-Mail address upon receipt of comments. User assistance 
for electronic filing is available at 202-502-8258 or by e-Mail to 
[email protected]. Comments should not be submitted to the E-Mail 
address.
    55. For paper filings, the original and 14 copies of such comments 
should be submitted to the Office of the Secretary, Federal Energy 
Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
    56. All comments will be placed in the Commission's public files 
and will be available for inspection in the Commission's Public 
Reference Room at 888 First Street, NE., Washington, DC 20426, during 
regular business hours. Additionally, all comments may be viewed, 
printed, or downloaded remotely via the Internet through FERC's 
Homepage using the FERRIS link.

VIII. Document Availability

    57. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5:00 
p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 
20426.
    58. From FERC's Home Page on the Internet, this information is 
available in the Federal Energy Regulatory Records Information System 
(FERRIS). The full text of this document is available on FERRIS in PDF 
and WordPerfect format for viewing, printing, and/or downloading. To 
access this document in FERRIS, type the docket number excluding the 
last three digits of this document in the docket number field.
    59. User assistance is available for FERRIS and the FERC's website 
during normal business hours from our Help line at (202) 502-8222 or 
the Public Reference Room at (202) 502-8371 (Press 0), TTY (202) 502-
8659. E-Mail the Public Reference Room at 
[email protected].

List of Subjects

18 CFR Part 375

    Authority delegations (Government agencies), Seals and insignia, 
Sunshine Act.

18 CFR Part 388

    Confidential business information, Freedom of information.

    By direction of the Commission.

Magalie R. Salas,
Secretary.
    In consideration of the foregoing, the Commission proposes to amend 
parts 375 and 388, Chapter I, Title 18, Code of Federal Regulations as 
follows:

PART 375--THE COMMISSION

    1. The authority citation for part 375 continues to read as 
follows:

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791-825r, 2601-2645, 42 U.S.C. 7101-7352.

    2. Add Sec.  375.313 to subpart C to read as follows:


Sec.  375.313  Delegations to the Critical Energy Infrastructure 
Information Coordinator.

    The Commission authorizes the Coordinator or the Coordinator's 
designee to:
    (a) Receive and review all requests for critical energy 
infrastructure information as defined in Sec.  388.113(c)(1).
    (b) Make determinations whether a particular requester's need for 
and ability and willingness to protect critical energy infrastructure 
information warrants limited disclosure of the information to the 
requester.
    (c) Establish reasonable conditions on the release of critical 
energy infrastructure information.
    (d) Release critical energy infrastructure information to 
requesters who satisfy the requirements in paragraph (b) of this 
section and agree in writing to abide by any conditions set forth by 
the Coordinator under paragraph (c) of this section.

PART 388--INFORMATION AND REQUESTS

    1. The authority citation for part 388 continues to read as 
follows:

    Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42 
U.S.C. 7101-7352.

    2. Section 388.112 is revised to read as follows:

[[Page 58005]]

Sec.  388.112  Requests for privileged treatment of documents submitted 
to the Commission.

    (a) Scope. Any person submitting a document to the Commission may 
request privileged treatment by claiming that some or all of the 
information contained in a particular document is exempt from the 
mandatory public disclosure requirements of the Freedom of Information 
Act, 5 U.S.C. 552, and should be withheld from public disclosure. Any 
person submitting documents containing critical energy infrastructure 
information as defined in Sec.  388.113 should follow the procedures 
specified in this section.
    (b) Procedures. A person claiming that information is privileged 
under (a) of this section must file:
    (1) For documents submitted in hard copy,
    (i) A written statement requesting privileged treatment for some or 
all of the information in a documents, and the justification for 
nondisclosure of the information;
    (ii) The original document, boldly indicating on the front page 
either ``Contains Privileged Information--Do Not Release'' or 
``Contains Privileged Critical Energy Infrastructure Information--Do 
Not Release'' and identifying within the document the information for 
which the privileged treatment is sought;
    (iii) Fourteen copies of the document without the information for 
which privileged treatment is sought, and with a statement indicating 
that information has been removed for privileged treatment;
    (iv) The name, title, address telephone number, e-mail address, and 
facsimile number of the person or persons to be contacted regarding the 
request for privileged treatment of documents submitted to the 
Commission.
    (2) For documents submitted on electronic media,
    (i) A written statement requesting privileged treatment for some or 
all of the information on the electronic media, and the justification 
for non-disclosure of the information;
    (ii) One copy of a complete filing on the electronic media marked 
either ``Contains Privileged Information--Do Not Release'' or 
``Contains Privileged Critical Energy Infrastructure Information--Do 
Not Release'' and identifying on the electronic media only the 
information for which the privileged treatment is sought with one paper 
copy also marked either ``Contains Privileged Information--Do Not 
Release'' or ``Contains Privileged Critical Energy Infrastructure 
Information--Do Not Release'';
    (iii) One copy of the electronic media without the information for 
which privileged treatment is sought and with a statement that 
information has been removed for privileged treatment with fourteen 
paper copies without the information for which privileged treatment is 
sought; and
    (iv) The name, title, address, telephone number, e-mail address, 
and facsimile number of the person or persons to be contacted regarding 
the request for privileged treatment of documents submitted to the 
Commission.
    (c) Effect of privilege claim--(1) For documents filed with the 
Commission. (i) The Secretary of the Commission will place documents 
for which privileged treatment is sought in accordance with paragraph 
(b)(1)(ii) of this section in a nonpublic file, while the request for 
privileged treatment is pending. By placing documents in a nonpublic 
file, the Commission is not making a determination on any claim for 
privilege. The Commission retains the right to make determinations with 
regard to any claim of privilege, and the discretion to release 
information as necessary to carry out its jurisdictional 
responsibilities.
    (ii) The Secretary of the Commission will place the request for 
privileged treatment described in paragraph (b) of this section and a 
copy of the original document with the privileged information removed 
in a public file while the request for privileged treatment is pending.
    (2) For documents submitted to Commission staff. The notification 
procedures of paragraphs (d) (e) and (f) of this section will be 
followed by staff before making a document public.
    (d) Notification of request and opportunity to comment. When a FOIA 
or CEII requester seeks a document for which privilege is claimed, or 
when the Commission itself is considering release of the information, 
the Commission official who will decide whether to make the document 
public will notify the person who submitted the document and give the 
person an opportunity (at least five days) in which to comment in 
writing on the request. A copy of this notice will be sent to the 
requester.
    (e) Notification before release. Notice of a decision by the 
Commission, the Chairman of the Commission, the Director, Office of 
External Affairs, the General Counsel or General Counsel's designee, a 
presiding officer in a proceeding under part 385 of this chapter, or 
any other appropriate official to deny a claim of privilege, in whole 
or in part, will be given to any person claiming that information is 
privileged no less than five days before public disclosure. The notice 
will briefly explain why the person's objections to disclosure are not 
sustained by the Commission. A copy of this notice will be sent to the 
FOIA or CEII requester.
    (f) Notification of suit in Federal courts. When a FOIA requester 
brings suit to compel disclosure of information for which a person has 
claimed privileged treatment, the Commission will notify the person who 
submitted the documents of the suit.
    3. Add Sec.  388.113 to read as follows:


Sec.  388.113  Accessing Critical Energy Infrastructure Information

    (a) Scope. This section governs access to critical energy 
infrastructure information (CEII). The rules governing submission of 
CEII are contained in 18 CFR 388.112(b). The Commission reserves the 
right to restrict access to previously filed documents as well as 
Commission-generated documents containing CEII.
    (b) Purpose. The procedures in this section are available at the 
requester's option as an alternative to the FOIA procedures in Sec.  
388.108 where the information requested is exempted from disclosure 
under the FOIA because it contains CEII.
    (c) Definitions. For purposes of this section:
    (1) Critical energy infrastructure information means information 
about proposed or existing critical infrastructure that:
    (i) Relates to the production, generation, transportation, 
transmission, or distribution of energy;
    (ii) Could be useful to a person in planning an attack on critical 
infrastructure;
    (iii) Is exempt from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552; and
    (iv) Does not simply give the location of the critical 
infrastructure.
    (2) Critical infrastructure means systems and assets, whether 
physical or virtual, that are so vital to the United States that the 
incapacity or destruction of such systems or assets would have a 
debilitating impact on the security, national economic security, 
national public health or safety, or any combination of those matters.
    (d) Optional procedures for requesting critical energy 
infrastructure information.
    (1) An owner/operator of a facility may obtain CEII relating to its 
own facility directly from Commission staff without going through the 
procedures outlined below.
    (2) An agent or representative of an owner/operator must obtain 
information from the owner/operator.

[[Page 58006]]

    (3) If any other requester has a particular need for information 
designated as CEII, the requester may request the information using the 
following procedures:
    (i) File a written request with the Commission's CEII Coordinator. 
The request shall contain the following: requester's name, title, 
address and telephone number; the name, address and telephone number of 
the person or entity on whose behalf the information is requested; a 
detailed statement explaining the particular need for and intended use 
of the information; and a statement as to the requester's willingness 
to adhere to limitations on the use and disclosure of the information 
requested.
    (ii) Once the request is received, the CEII Coordinator will 
determine whether to release the CEII to the requester. The CEII 
Coordinator will consider the requester's need for the information. If 
the requester is determined to be eligible to receive the information 
requested, the CEII Coordinator will determine what conditions, if any, 
to place on release of the information. Where appropriate, the CEII 
Coordinator will forward a non-disclosure agreement to the requester 
for execution. Once the requester signs any required non-disclosure 
agreement, the CEII Coordinator will make the critical energy 
infrastructure information available to the requester. The CEII 
Coordinator's decisions regarding release of CEII are final decisions 
for purposes of Sec.  385.713.
    (iii) The CEII Coordinator will attempt to respond to the requester 
under this section according to the timing required for responses under 
the Freedom of Information Act in Sec.  388.108(c), and will provide 
notice to the submitter in accordance with Sec.  388.112(d) and (e).

Appendix--List of Respondents

    Note: This appendix will not appear in the Code of Federal 
Regulations.

1. Adirondack Mountain Club
2. American Library Association
3. American Public Power Association (APPA)
4. American Superconductor Corporation
5. American Transmission Company, LLC
6. Atlanta Gas Light Company; Chattanooga Gas Company; Virginia 
Natural Gas, Inc.
7. Blue Ridge Power Agency; East Texas Electric Cooperative
8. Bonneville Power Administration
9. Central Maine Power
10. Connecticut Department of Public Utility Control
11. Duke Energy Trading Group, which includes:
    Algonquin Gas Transmission Company
    East Tennessee Natural Gas Company
    Texas Eastern Transmission, LP
12. Duquesne Light Company
13. Dynegy Power Marketing, Inc.
14. Edison Electric Institute (EEI),* including
    EEI Alliance of Energy Suppliers
    EEI Transmission Group
15. Electric Power Supply Association
16. Exelon Corporation, on behalf of its public utility 
subsidiaries:
    PECO Energy Company
    Commonwealth Edison Company
17. Interstate Natural Gas Association of America (INGAA)*
18. LegalNetWorks, Lee M. Zeichner
19. Leggett, Nickolaus E., Independent Technology Analyst
20. Maine Public Utilities Commission
21. Member Systems (members of the Transmission Owners Committee for 
the Energy Association of New York State), includes:
    Central Hudson Gas and Electric Corporation
    Consolidated Edison Company of New York, Inc.
    LIPA
    New York State Electric & Gas Corporation
    Orange and Rockland Utilities, Inc.
    Rochester Gas and Electric Corporation
    Power Authority of New York
22. Michigan Public Power Agency; Michigan South Central Power 
Agency
23. MidAmerican Energy Company*
24. Mid-Continent Area Power Pool (MAPP), based on survey of MAPP 
members
25. National Association of Regulatory Utility Commissioners (NARUC)
26. National Grid
27. National Hydropower Association (NHA) (non-public filing)
28. National Rural Electric Cooperative Association (NRECA)
29. Utilities Commission, City of New Smyrna Beach, Florida
30. New York State Public Service Commission
31. New York Attorney General, Eliot Spitzer
32. NiSource Pipelines, consisting of:
    Columbia Gas Transmission Corporation
    Columbia Gulf Transmission Company
    Crossroads Pipeline Company
    Granite State Gas Transmission, Inc.
33. North American Electric Reliability Council (NERC)
34. North Carolina Electric Membership Corporation
35. Oklahoma Gas and Electric Company
36. OMB Watch
37. PJM Interconnection, L.L.C., PJM arranges filings required of 
the Mid Atlantic Area Council, such as form 715. PJM's responses 
pertain to PJM data and MAAC data.
38. Platts, a division of the McGraw-Hill Companies
39. Process Gas Consumers Group; American Forest & Paper 
Association; American Iron and Steel Institute; Georgia Industrial 
Group; Florida Industrial Gas Users; Industrial Gas Users of 
Florida; United States Gypsum Company; Collectively, ``the 
Industrials''
40. Public Citizen Litigation Group
41. Public Utilities Commission of Ohio; Oklahoma Corporation 
Commission; Michigan Public Service Commission
42. Public Utilities Fortnightly
43. Public Utility District No. 1 of Chelan County, Washington*
44. Reliant Energy HL & P
45. Reliant Resources, Inc.
46. Reporters Committee for Freedom of the Press
47. Southern California Edison Company
48. Southern Company Services, Inc., acting for itself and as agent 
for:
    Alabama Power Company
    Georgia Power Company
    Gulf Power Company
    Mississippi Power Company
    Savannah Electric and Power Company
    Southern Power Company
49. Washington Legal Foundation, along with Economic Freedom Law 
Clinic, George Mason University of Law
50. Williston Basin Interstate Pipeline Company*

    * Filed both public and non-public responses.

[FR Doc. 02-23302 Filed 9-12-02; 8:45 am]
BILLING CODE 6717-01-P