[Federal Register Volume 68, Number 151 (Wednesday, August 6, 2003)]
[Rules and Regulations]
[Pages 46456-46460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19607]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 388

[Docket Nos. RM02-4-001 and PL02-1-001; Order No. 630-A]


Critical Energy Infrastructure Information

Issued: July 23, 2003.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule; order on rehearing.

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SUMMARY: On February 21, 2003, the Commission issued a final rule 
amending its regulations to establish a procedure for gaining access to 
critical energy infrastructure information (CEII) that would otherwise 
not be available under the Freedom of Information Act (FOIA). The 
Commission herein is denying the petition for rehearing filed by the 
Transmission Access Policy Study Group (TAPS), amending the final rule 
to increase the numbers of copies filed, and clarifying the filing 
process for submitting CEII, and one provision of the regulation 
regarding requests for CEII.

EFFECTIVE DATE: The revisions implemented in this order on rehearing of 
the final rule will become effective September 5, 2003.

FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the 
General Counsel, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426. Phone (202) 502-6457.

SUPPLEMENTARY INFORMATION: 
Before Commissioners: Pat Wood, III, Chairman; William L. Massey, and 
Nora Mead Brownell.

I. History

    1. On February 21, 2003, the Federal Energy Regulatory Commission 
(Commission) issued a final rule in Order No. 630 establishing 
procedures for the public to use to submit and request access to 
critical energy infrastructure information (CEII) that would otherwise 
not be available to them under the Freedom of Information Act, 5 U.S.C. 
552 (FOIA). Order No. 630 is the most recent step the Commission has 
taken to protect information regarding critical energy infrastructure 
since the September 11, 2001 terrorist attacks on the United States. On 
October 11, 2001, the Commission took the initial step of issuing a 
policy statement in Docket No. PL02-1-000 removing from easy public 
access certain previously public documents.\1\ On January 16, 2002, the 
Commission issued a notice of inquiry in Docket No. RM02-4-000 to 
determine what regulatory changes, if any, should be made to restrict 
unfettered general public access to CEII.\2\ Later that year, the 
Commission issued a notice of proposed rulemaking and statement of 
revised policy in the same docket, proposing procedures for submitting 
and requesting CEII and the creation of a new position of CEII 
Coordinator.\3\ The Commission issued the final rule in Order No. 630 
approximately five months later.\4\
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    \1\ See 66 FR 52917 (Oct. 18, 2001), 97 FERC ] 61,030 (Oct. 11, 
2001).
    \2\ See 67 FR 3129 (Jan. 23, 2002), IV FERC Stats. & Regs. ] 
35,542 (Jan. 16, 2002).
    \3\ See 67 FR 57994 (Sept. 13, 2002), IV FERC Stats. & Regs. ] 
32,564 (Sept. 5, 2002).
    \4\ 68 FR 9857 (Mar. 3, 2003), III FERC Stats. & Regs. ] 31,140 
(Feb. 21, 2003).
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    2. On March 21, 2003, the Transmission Access Policy Study Group 
(TAPS) filed a timely request for rehearing of Order No. 630. The 
Commission granted rehearing for the limited purpose of further 
reconsideration on April 21, 2003. TAPS filed a motion on May 27, 2003 
seeking to supplement its prior request for rehearing, and asking that 
the Commission consider comments filed by TAPS and the American Public 
Power Association (APPA) regarding the notice of proposed rulemaking in 
Docket No. RM03-6-000, Amendments to Conform Regulations with Order No. 
630, IV FERC Stats. & Regs. ] 32,569 (2003).\5\
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    \5\ The Commission will consider TAPS's supplemental comments, 
but notes that the comments were filed after the statutory deadline 
for filing rehearing requests, and thus are not preserved for 
consideration on appeal. See, e.g., 16 U.S.C. 825l.
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    3. As discussed in more detail below, the Commission denies TAPS's 
request for rehearing. Nevertheless, the Commission is revising Order 
No. 630 to reflect its experience in implementing the final rule. 
Specifically, this order revises Order No. 630 to change the CEII 
filing instructions, the CEII request procedures, and the instructions 
for requesting rehearing of the CEII Coordinator's decision.

II. Discussion

A. TAPS's Request for Rehearing

    4. In its request for rehearing, TAPS claims that the CEII rule 
creates ``a conflict between deadlines placed on intervenors in 
Commission proceedings * * * and the time frames for the release of 
CEII.'' TAPS Request at p. 1. TAPS cites as an example rate filings 
under section 205 of the Federal Power Act. According to TAPS, the 
Commission's CEII request process would likely take at least 20 
business days to complete, thus preventing an intervenor from gaining 
access to relevant CEII until after the 21-calendar day limit for 
filing interventions and protests had passed. The Commission disagrees. 
Initially, a potential intervenor would typically not require access to 
CEII in order to file a notice of intervention or motion to intervene. 
As for a protest, as discussed in Order No. 630, it is unlikely that 
there will be CEII contained in a section 205 filing, which typically 
must be acted on within 60 days, or any other filing with statutory 
deadlines, and in the unusual case where there is such information, it 
is likely that there will be enough publicly available information to 
enable an intervenor to respond to the filing.\6\ Moreover, in the 
unlikely event that there is need for an intervenor to obtain access to 
CEII, the intervenor may request a reasonable extension of time to file 
a protest. Separately, as most intervenors in section 205 rate cases, 
the typical cases where statutory deadlines are relevant, have ongoing 
relationships

[[Page 46457]]

with the filing utility, they can always contact the filing utility 
directly.
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    \6\ 68 FR at p. 9866; III FERC Stats. & Regs. ] 31,140 at P 55.
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    5. Moreover, as noted in Order No. 630, the issue is not new. Prior 
to enactment of the CEII rule, a company could make a filing with a 
request for confidential treatment under 18 CFR 388.112. To date the 
Commission is unaware of this right preventing someone from filing a 
timely intervention or protest, or participating meaningfully in a 
Commission rate proceeding. There is no reason to think that the issue 
is any more acute under the CEII rule.
    6. TAPS notes that the Commission has found portions of Form No. 
715 data to be CEII, and TAPS claims that ``geographic markets cannot 
be properly defined without assessing transmission capability and 
constraints.'' \7\ While knowledge of transmission capacity and 
constraints may better enable intervenors to participate effectively in 
merger and market rate proceedings, Order No. 630 should not prevent 
intervenors from getting such information. Form No. 715 is an annual 
filing that may be obtained through the CEII request procedures by 
those with a need for the information. In addition, nothing in Order 
No. 630 affects the requirement in Part 37 of the Commission's 
regulations regarding Open Access Same-Time Information Systems 
(OASIS). Under 18 CFR 37.6, transmission providers are required to post 
transmission capability, transmission service products and prices, 
ancillary service offerings and prices, specific transmission and 
ancillary services requests and responses, transmission service 
schedules information, and other transmission-related communications. 
Neither this rule, nor the changes proposed in the NOPR in Docket No. 
RM03-6-000, affects the obligations of transmission providers to 
continue to provide this information. Accordingly, interested parties 
should have adequate information on hand to respond to filings made 
pursuant to sections 203, 205 and 206 of the Federal Power Act, 16 
U.S.C. 824b, 824d, and 824e.
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    \7\ TAPS March 21, 2003 Rehearing Request at p. 4.
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    7. Finally, TAPS's supplemental filing indicates a concern that the 
Commission's CEII access procedures have somehow supplanted other 
mechanisms for obtaining CEII. For example, TAPS notes that 
``[r]egional reliability councils, RTOs and OASIS sites have procedures 
in place today that provide market participants with secure access to 
CEII,'' and goes on to state that ``[t]he Commission should not 
interfere with these existing mechanisms--and indeed should build upon 
them to ensure secure access to CEII.'' \8\ The Commission does not 
intend to interfere with these mechanisms. Order No. 630 deals 
exclusively with the way in which information is submitted to and 
disseminated by the Commission; it is not intended to limit the ability 
of companies, reliability councils, RTOs and others to share CEII with 
those with a need for it. In fact, the Commission recognizes that these 
entities are often in the best position to judge the legitimacy of such 
requesters, and the Commission encourages these entities to provide 
information to legitimate requesters, reducing the number of CEII 
requests that the Commission itself must process.
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    \8\ TAPS May 27, 2003 Motion to Supplement at p. 3.
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B. Changes to 18 CFR 388.112

1. Changes to Instructions Regarding Non-Internet Public Information
    8. The Commission is making several changes to the instructions in 
18 CFR 388.112 regarding submission of CEII. The first change is to add 
an instruction in Sec.  388.112(a)(3) regarding the filing of non-
Internet public (NIP) information.\9\ In Order No. 630, the NIP 
instructions appeared only in the preamble text. The Commission has 
decided for the sake of clarity to integrate NIP into the instructions 
in Sec.  388.112 of its regulations. It is easier for filers to be able 
to rely on instructions in the regulations themselves without having to 
look at the preamble language in order to get complete instructions on 
preparing a filing. Accordingly, in order to include NIP in 18 CFR 
388.112, the title of the section is changed from ``Requests for 
privileged treatment of documents submitted to the Commission'' to 
``Requests for special treatment of documents submitted to the 
Commission.'' The instructions in Sec.  388.112(b) of the Commission's 
regulations are being revised to specify that NIP information should be 
segregated from other public information, and to direct filers to file 
the same number of NIP volumes that they file of other public volumes. 
This is because NIP is circulated to staff in the same manner that 
public information is circulated. The only difference at the Commission 
between NIP information and public information is that NIP information 
is not available to the public through the on-line Federal Energy 
Regulatory Records Information System (FERRIS). NIP information is 
available, however, in the Commission's Public Reference Room.
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    \9\ NIP information includes location maps and diagrams that 
don't rise to the level of CEII. Order No. 630 provided the 
following examples of NIP: ``(1) USGS 7.5 minute topographic maps 
showing the location of pipelines, dams, or other aboveground 
facilities, (2) alignment sheets showing the location of pipeline 
and aboveground facilities, right of way dimensions, and extra work 
areas; (3) drawings showing site or project boundaries, footprints, 
building locations and reservoir extent; and (4) general location 
maps.'' 68 FR at p. 9862, IV FERC Stats. & Regs. at P 30.
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2. Changes to the Number of Copies for Public Documents and CEII
    9. The instructions in Order No. 630 regarding submission of CEII 
were incorporated largely into the Commission's then-existing 
regulation at 18 CFR 388.112 regarding requests for privileged 
treatment of documents. That existing regulation specified that an 
original and fourteen copies of public documents should be filed. This 
requirement was based on the Commission's generic filing regulation 
found at 18 CFR 385.2004, which states that ``[a]ny person filing under 
this chapter must provide an original of the filing and fourteen exact 
copies, unless otherwise required by statute, rule or order.'' 
Unfortunately, however, unlike 18 CFR 385.2004, the regulation at 18 
CFR 388.112 did not allow for situations where fewer or more than 
fourteen copies are required.\10\ The language in Sec.  388.112 of the 
Commission's regulations therefore is being revised to require for 
public volumes, an original plus the requisite number of copies for 
that particular type of filing.
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    \10\ See, e.g., 18 CFR 157.6(a) (requiring an original and 7 
copies of applications for certificates of public convenience and 
necessity).
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    10. Order No. 630 specified that one version of CEII material be 
filed, mirroring the existing requirement for only one version of 
privileged information. Generally, in order to ensure tight control 
over privileged information such as trade secret information, the 
Commission prefers to receive only one version of such information. 
However, staff has found that having only one version of CEII material 
makes it difficult to process filings. The Commission has therefore 
determined that having two additional copies of CEII material will 
facilitate more efficient processing of filings containing CEII. 
Consequently, the filing provisions at Sec. Sec.  388.112(b)(2)(A)(ii) 
and (B)(ii) of the Commission's regulations are being revised to 
require an original and two copies of material containing CEII. The 
rule regarding the number of privileged filings will remain the same, 
requiring that one be filed.

[[Page 46458]]

3. Changes to Other Filing Instructions
    11. The Commission is also revising the filing instructions in 18 
CFR 388.112(b) to remove language directing filers to segregate CEII 
and privileged material wherever practical into separate documents or 
appendices, and instead directing filers to file CEII, privileged, and 
NIP in separate ``volumes.'' Since Order No. 630 became effective, the 
Commission has received numerous filings that have been difficult to 
process because of confusion regarding which portions are public, which 
are NIP, which are CEII, and which are privileged. The staff in the 
Office of the Secretary and the staff in the Office of the Executive 
Director who process filings and are responsible for placing documents 
into FERRIS are not the same staff that review the documents for 
substantive content. The processing staff does not have the time to 
read each filing page-by-page to see where materials may be marked for 
special treatment in the middle of a document. By using the term 
``volume,'' the Commission is specifying that materials for which 
special treatment is sought be physically separate from other portions 
of the filing, making for easier processing, with less of a chance for 
NIP, CEII, or privileged information to inadvertently be logged in as 
standard public information. The Commission is also deleting parallel 
filing instructions that allowed filers to redact material from a 
filing instead of using the separate volume approach. The redaction 
approach results in numerous versions of the same material being filed, 
increasing filer costs, staff processing time, and the possibility of 
confusion. For this reason, the regulation will no longer include a 
redaction option in 18 CFR 388.112.
    12. In addition, the Commission is revising the filing provisions 
to reflect that filings should be marked and packaged according to 
instructions provided by the Secretary's Office. In Order No. 630, the 
Commission provided detailed instructions in 18 CFR 388.112(b) 
regarding the marking, packaging, and filing of CEII. The Commission 
has now determined to provide general instructions in the regulatory 
text with more detailed information provided in instructions from the 
Secretary's Office. This allows the Commission more flexibility and 
will permit the details to be modified as the need arises. Key 
elements, such as the numbers of copies required, are still covered by 
the regulation itself.
4. Changes to Effect and Notification Provisions
    13. The Commission is revising the language in paragraphs (c), (d), 
and (e) of Sec.  388.112 of its regulations to specifically reference 
CEII requests. In Order No. 630, the language in these provisions 
refers to both traditional privileged information and CEII as 
privileged information. To eliminate the potential for confusion, the 
Commission believes it is necessary to clearly distinguish between CEII 
and materials that companies have traditionally submitted with requests 
for privileged treatment, such as confidential information or Privacy 
Act information. Accordingly, the Commission is amending Sec.  
388.112(c) of its regulations to clarify that it applies to claims for 
CEII status as well as privileged claims. Similarly, the Commission is 
amending 18 CFR 388.112(d) to include language to clarify that it is 
relevant to CEII requests. The Commission also is amending Sec.  
388.112(e) of its regulations to clarify that the Commission will 
notify submitters prior to releasing information for which the 
submitter has requested CEII treatment. In addition, language is added 
in both 388.112(d) and (e) to clarify that the five days referred to in 
each are calendar days.

C. Changes to 18 CFR 388.113 CEII Request Procedures

    14. After several months of experience processing CEII requests, 
the Commission is changing 18 CFR 388.113 to make certain minor changes 
to its CEII request procedures. The Commission is amending Sec.  
388.113(d)(3)(i) of its regulations to require that CEII requesters 
sign their CEII. Although 18 CFR 385.2005(a) already requires that any 
filing made with the Commission be signed, the Commission is revising 
Sec.  388.113(d)(3)(i) to specify that CEII requests should be signed. 
As with Sec.  385.2005, the purpose of the signature is to verify that 
the signer knows the contents of the filing and that ``the contents are 
true as stated to the best knowledge and belief of the signer.''\11\ In 
addition, the Commission is amending that same section to require 
requesters to provide their birth name and any other names that they 
may have had or been known by in addition to their current name. This 
will help the Commission verify the identity of the requester where the 
birth name or other names do not match the requester's current name. 
Finally, 18 CFR 388.113(d)(3)(i) is being revised to read that requests 
``must'' contain specific information listed in the regulation.\12\ 
This will make it more clear that the information is mandatory.
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    \11\ See 18 CFR 385.2005(2)(ii)(2003).
    \12\ The original language in Order No. 630 stated that a 
request ``shall'' contain the listed information in 18 CFR 
388.113(d)(3)(i).
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    15. In response to requests from Federal agencies, the Commission 
is also revising the CEII request regulations at Sec.  388.113(d)(3)(i) 
to require less personal information from a Federal agency requester 
who requests information in an official capacity. Employees at Federal 
agencies are subject to background checks as a condition of their 
Federal employment. Consequently, Federal employees require less 
screening prior to gaining access to CEII. The Commission, therefore, 
is adding a sentence to 18 CFR 388.113(d)(3)(i) to clarify that 
``Federal agency employees making requests on behalf of Federal 
agencies may omit their social security number, and date and place of 
birth.''
    16. The Commission also is adding language at the end of Sec.  
388.112(d)(ii) of its regulations to direct that ``[C]opies of requests 
for rehearing of the CEII Coordinator's decision should be served on 
the CEII Coordinator and the Associate General Counsel for General 
Law.'' This will facilitate the Commission's processing of rehearing 
requests by ensuring that relevant staff is notified of the request as 
soon as possible.

D. Clarification Regarding LNG Environmental Resource Reports

    17. Order No. 630 listed information that the Commission considers 
to be CEII because it provides more than simply location information. 
In error, that listing included ``environmental resource reports for 
LNG facilities.''\13\ It should have read ``environmental resource 
report 13 for LNG facilities,'' which contains engineering and design 
information for liquified natural gas facilities.\14\
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    \13\ 68 FR 9857 at p. 9862, III FERC Stats. & Regs. P31.
    \14\ See 18 CFR 380.12(o).
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E. Review of Effectiveness of CEII Process

    18. This rule, as well as the final rule in RM03-6, represents the 
Commission's best efforts to achieve a delicate balance between the due 
process rights of interested persons to participate fully in its 
proceedings and its responsibility to protect public safety by ensuring 
that access to CEII does not facilitate acts of terrorism. The 
Commission believes that it has struck an appropriate balance; however, 
it

[[Page 46459]]

intends to monitor the experiences under these two rules to ensure that 
it has done so. Therefore, in six months the Commission will solicit 
public comment to determine whether submitters or requesters of CEII 
are experiencing any problems with the new processes.

III. Information Collection Statement

    19. The Office of Management and Budget's (OMB's) regulations 
require that OMB approve certain information collection requirements 
imposed by agency rule.\15\ OMB approved the final rule issued in Order 
No. 630 on May 2, 2003. Two changes have been made to the information 
collection requirements in this order on rehearing. The number of 
copies of CEII have been changed from one original to an original plus 
two copies in order to facilitate staff review of filings. This 
requirement does not exceed OMB's restriction against requiring more 
than an original plus two copies and does not change the burden 
estimates.\16\ In addition, the revised rule requires requesters to 
identify any other names by which they have been known, and to give the 
dates they used such names. This requirement is intended to verify the 
identity of the requester. OMB regulations provide an exemption where a 
person is required to provide only facts that are necessary for 
identification.\17\ Again, this change does not change the burden 
estimates. Although the Commission believes these changes are not 
substantive or material changes requiring OMB approval, a courtesy copy 
is being submitted to OMB.
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    \15\ 5 CFR part 1320(2003).
    \16\ See 5 CFR 1320.5(d)(2)(iii).
    \17\ 5 CFR 1320.3(1).
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IV. Environmental Analysis

    20. 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.\18\ 
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. This rule is clarifying and procedural in 
nature and therefore falls under the exceptions; consequently, no 
environmental consideration is necessary.
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    \18\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs. Regulations Preambles 1986-1990 ]30,783 (1987).
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V. Regulatory Flexibility Act Certification

    21. The Regulatory Flexibility Act of 1980 (RFA)\19\ 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 rule does 
not have such an impact on small entities.
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    \19\ 5 U.S.C. 601-612.
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VI. Document Availability

    22. 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 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
    23. From FERC's Home Page on the Internet, this information is 
available in the Elibrary or 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.
    24. User assistance is available for FERRIS and the FERC's Web site 
during normal business hours via e-mail at [email protected] 
or toll-free at (866) 208-3676, or TTY, contact (202) 502-8659, or 
through the Public Reference Room at (202) 502-8371 Press 0.

VII. Effective Date

    25. The revisions implemented in this order on rehearing of the 
rule are effective September 5, 2003.
    26. The provisions of 5 U.S.C. 801 regarding Congressional review 
of final rules do not apply to this final rule, because the rule 
concerns agency procedure and practice and will not substantially 
affect the rights of non-agency parties.

List of Subjects in 18 CFR Part 388

    Confidential business information, Freedom of information.

    By the Commission.
Magalie R. Salas,
Secretary.


0
In consideration of the foregoing, the Commission amends part 388, 
Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 388--INFORMATION AND REQUESTS

0
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.


0
2. In Sec.  388.112, the heading is revised, paragraph (a)(3) is added, 
and paragraphs (b) through (e) are revised, to read as follows:


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

    (a) Scope. * * *
    (3) Any person submitting documents containing maps or diagrams 
that reveal the location of critical energy infrastructure as defined 
in Sec.  388.113 but do not rise to the level of CEII should follow the 
procedures for filing non-Internet public (NIP) information.
    (b) Procedures. A person claiming that information warrants special 
treatment as NIP, CEII, or privileged must file:
    (1) A written statement requesting NIP, CEII or privileged 
treatment for some or all of the information in a document, and the 
justification for special treatment of the information; and
    (2) The following, as applicable:
    (i) An original plus the requisite number of copies of both the 
public and NIP volumes, if any, filed and marked in accordance with 
instructions issued by the Secretary;
    (ii) An original plus two copies of the CEII volume, if any, filed 
and marked in accordance with instructions issued by the Secretary; and
    (iii) An original only of the privileged volume, if any, filed and 
marked in accordance with instructions issued by the Secretary.
    (c) Effect of privilege or CEII claim. (1) For documents filed with 
the Commission:
    (i) The Secretary of the Commission will place documents for which 
privileged or CEII treatment is sought in accordance with paragraph (b) 
of this section in a nonpublic file while the request for privileged or 
CEII treatment is pending. By placing the documents in a nonpublic 
file, the Commission is not making a determination on any claim of 
privilege or CEII status. The Commission retains the right to make

[[Page 46460]]

determinations with regard to any claim of privilege or CEII status, 
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 or CEII treatment and a copy of the original document 
without the privileged or CEII information in a public file while the 
request 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 or CEII status 
has been claimed, or when the Commission itself is considering release 
of such information, the Commission official who will decide whether to 
release the information will notify the person who submitted the 
document and give the person an opportunity (at least five calendar 
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, or to make a limited release of CEII, will be given to any 
person claiming that the information is privileged or CEII no less than 
5 calendar days before 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.
* * * * *

0
3. In Sec.  388.113 paragraphs (d)(3)(i) and (d)(3)(ii) are revised to 
read as follows:


Sec.  388.113  Accessing critical energy infrastructure information.

* * * * *
    (d) Optional procedures for requesting critical energy 
infrastructure information.
* * * * *
    (3) * * *
    (i) File a signed, written request with the Commission's CEII 
Coordinator. The request must contain the following: requester's name 
(including any other name(s) which the requester has used and the dates 
the requester used such name(s)), date and place of birth, 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. Requesters are also requested to include their social 
security number for identification purposes. Federal agency employees 
making requests on behalf of Federal agencies may omit their social 
security number, and date and place of birth.
    (ii) Once the request is received, the CEII Coordinator will 
determine if the information is CEII, and, if it is, whether to release 
the CEII to the requester. The CEII Coordinator will balance the 
requester's need for the information against the sensitivity of 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 (NDA) to the requester for execution. Once the requester 
signs any required NDA, the CEII Coordinator will provide the requested 
critical energy infrastructure information to the requester. The CEII 
Coordinator's decisions regarding release of CEII are subject to 
rehearing as provided in Sec.  385.713 of this chapter. Copies of 
requests for rehearing of the CEII Coordinator's decision must be 
served on the CEII Coordinator and the Associate General Counsel for 
General Law.
* * * * *

[FR Doc. 03-19607 Filed 8-5-03; 8:45 am]
BILLING CODE 6717-01-P