[Federal Register Volume 69, Number 37 (Wednesday, February 25, 2004)]
[Notices]
[Pages 8638-8639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-4096]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. RM02-4-002, PL02-1-002, RM03-6-001]


Critical Energy Infrastructure Information; Notice Soliciting 
Public Comment

February 13, 2004.
    1. On July 23, 2003, the Federal Energy Regulatory Commission (the 
Commission) issued two final rules--Order Nos. 630-A and 643--involving 
critical energy infrastructure information (CEII).\1\ Order No. 630-A, 
the order on rehearing of Order No. 630, which was issued on February 
21, 2003,\2\ provided further instruction on filing, handling, and 
processing requests for CEII found in Commission records. Order No. 643 
was a companion rule that addressed then-existing requirements that 
companies make certain information publicly available that the 
Commission itself treated as non-public under newly-issued Order No. 
630. The intent of Order No. 643 was to revise requirements that 
applied to the companies' release of CEII to be consistent with the way 
in which the Commission was treating that same information. No one 
sought rehearing of Order No. 643, and no one appealed either rule.
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    \1\ Critical Energy Infrastructure Information, Order No. 630-A, 
68 FR 46456 (Aug. 6, 2003), FERC Stats. & Regs. ] 31,147 (2003); 
Amendments to Conform Regulations with Order No. 630, Order No. 643, 
68 FR 52089 (Sept. 2, 2003), FERC Stats. & Regs. ] 31,149 (2003).
    \2\ Critical Energy Infrastructure Information, Order No. 630, 
68 FR 9857 (Mar. 3, 2003), FERC Stats. & Regs. ] 31,140 (2003).
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    2. In each of the orders, the Commission noted that the two rules 
``represent[ed] 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.'' Order No. 630-A, 68 FR 46456 at P 18; Order No. 643, 68 
FR 52089 at P 25. At the same time, the Commission committed to solicit 
public comment after six months in order to identify any potential 
problems with the treatment of CEII under the two orders. Id. This 
notice provides an opportunity for those with experience under Order 
Nos. 630, 630-A, and 643 to comment on their experiences under those 
orders. Such comments are due within 30 days of the date of issuance of 
this notice.

Background

    3. The final rule issued in Order No. 630 was the result of over a 
year of consideration and discussion at the Commission. The effort 
began shortly after the attacks of September 11, 2001 with the issuance 
of a policy statement in PL02-1-000 (the Policy Statement), which 
discussed the recent removal of certain previously-public records from 
public access through the Public Reference Room, the Commission's 
document retrieval system, and the Internet. See Statement of Policy on 
Treatment of Previously Public Documents, 66 FR 52917 (Oct. 18, 2001), 
97 FERC ] 61,130 (2001). The documents affected by the Policy Statement 
were documents including oversized maps that detailed the 
specifications of facilities licensed or certified by the Commission. 
The Policy Statement advised the public to request such information 
pursuant to the Freedom of Information Act (FOIA) process that is 
detailed in 5 U.S.C. 552 and in the Commission's regulations at 18 CFR 
388.108.
    4. Within a few months, the Commission issued a notice of inquiry 
(the NOI) as the next step in the process. In this same issuance, the 
Commission provided guidance to those filing information that might 
warrant non-public treatment under the Policy Statement. See Notice of 
Inquiry and Guidance for Filings in the Interim, 67 FR 3129 (Jan. 23, 
2002), FERC Stats. & Regs. ] 35,542 (2002). The NOI labeled the 
information the Commission was seeking to protect as ``critical energy 
infrastructure information, or CEII,'' but asked for public comment on 
how to define the scope of the term. In addition, the NOI invited 
comment on the legal authority to protect CEII (including applicability 
of FOIA exemptions), requester verification and access issues, use of 
non-disclosure agreements, and the process for requesting CEII.
    5. In September 2002, the Commission issued a notice of proposed 
rulemaking regarding CEII (the NOPR). 67 FR 57994 (Sept. 13, 2002); 
FERC Stats. & Regs. ] 32,564 (2002). The NOPR proposed an expanded 
definition of CEII to include detailed information about proposed 
facilities as well as those already licensed or certificated. In 
addition, it proposed a new process that would enable the Commission to 
restrict general public access to CEII while at the same time 
permitting those with a need for the information to obtain it in a 
timely manner. To that end, the NOPR proposed a supplement to the FOIA 
request process that would enable requesters to get access to CEII that 
was otherwise exempt from mandatory disclosure under the FOIA. Under 
the proposed process, requesters would have to provide limited personal 
information about themselves and their need for the information. This 
information would be considered in determining whether or not to grant 
the request. In addition, release would generally be contingent upon 
the requester agreeing to abide by the terms of an appropriate non-
disclosure agreement.
    6. On February 21, 2003, the Commission issued Order No. 630, the 
final rule on CEII. The final rule defined CEII to include information 
about proposed facilities, and to exclude information that simply 
identified the location of the infrastructure. In addition, the 
Commission's related definition of ``critical infrastructure'' was 
broad enough to cover virtually all facilities within its jurisdiction. 
The Commission declined to limit protection to ``high risk'' projects 
or facilities, opting instead to include virtually all facilities and 
components, including computer systems that control or form part of the 
energy infrastructure.
    7. After receiving a request for rehearing on Order No. 630, the 
Commission issued Order No. 630-A on July 23, 2003, denying the request 
for rehearing, but amending the rule in several respects. Specifically, 
the order on rehearing made several minor procedural changes and 
clarifications, added a reference in the regulation regarding the 
filing of non-Internet public (NIP) information, a term first described 
in Order No. 630, and added a commitment to review the effectiveness of 
the new process after six months. This notice is intended to facilitate 
such a review.
    8. As a separate but related matter, shortly after the Commission 
issued Order No. 630, it issued a notice of proposed rulemaking in 
RM03-6 that identified portions of the Commission's regulations that 
might require companies to disclose information that would be deemed 
CEII under the standards set forth in Order No. 630. See 68 FR 18538, 
(Apr. 21, 2003), FERC Stats. & Regs. ] 32,569 (2003). The goal

[[Page 8639]]

in RM03-6 was to identify and implement any regulatory changes 
necessary to reconcile regulations requiring companies' disclosure of 
information with the standards and procedures in Order No. 630 for 
handling CEII that is submitted to or created by the Commission. In 
that way, the Commission attempted to ensure that protection of CEII 
was consistent whether the information was being sought through the 
Commission or through the company.
    9. On July 23, 2003, the Commission issued Order No. 643, 
Amendments to Conform Regulations with Order No. 630 (Critical Energy 
Infrastructure Information Final Rule), 68 FR 52089 (Sept. 2, 2003), 
FERC Stats. & Regs. ] 31,149 (2003). The provisions in Order No. 643 
were not intended to require that companies withhold CEII, rather they 
were intended to eliminate existing requirements to disclose 
information that may qualify for CEII treatment by the Commission. 
Order No. 643 explicitly stated that ``[t]here is nothing in these 
revisions that affects one entity's ability to reach appropriate 
arrangements for sharing CEII and the Commission in fact encourages 
such arrangements.'' 68 FR 52089 at P 16. The final rule made necessary 
revisions to provisions in 18 CFR Parts 4, 16, 141 and 157, and made 
the same commitment as in Order No. 630-A to review the effectiveness 
of the changes after six months. This notice is intended to facilitate 
the required ``public comment to determine whether submitters or 
requesters of CEII are experiencing any problems with the new 
processes.'' Id. at P 25.

 Experience To Date

    Order Nos. 630, 630-A, and 643 became effective on April 2, 2003, 
September 5, 2003, and October 23, 2003, respectively. Since April 
2003, the Commission has received many filings where the submitters 
have requested non-public treatment of documents as containing CEII. At 
the same time, the Commission's staff has designated certain internally 
generated documents as CEII. Nevertheless, the Commission has received 
no complaints that any participant in a Commission proceeding could not 
get access to a document in order to participate meaningfully in the 
proceeding. Likewise, the Commission has received no complaints from 
other members of the public with a demonstrated need for a document 
containing CEII.\3\ As the Commission indicated in Order No. 630, it 
intended to process requests for CEII as expeditiously as possible. 
That goal, in large part, as set out below, has been accomplished.\4\
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    \3\ Commission action on CEII requests is delegated to the CEII 
Coordinator, whose decisions are subject to rehearing. No one has 
filed a request for rehearing of any of the decisions rendered to 
date.
    \4\ In the early months of processing CEII requests, the 
Commission experienced some technical difficulties, in particular 
with respect to the reproduction of Form No. 715. Those 
difficulties, which have now been resolved, caused some delay in 
responding to the initial requests for that form.
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    10. Staff follows several steps in processing requests for CEII. 
Once a request is received, the appropriate staff searches for the 
document requested and provides the document to legal staff with a 
recommendation regarding whether or not the information qualifies as 
CEII. In cases where the requested document was submitted to the 
Commission with a request for CEII treatment, the Associate General 
Counsel for General Law notifies the submitter that the Commission has 
received a request for the document, and gives the submitter a period 
of at least five days in which to comment both on release to the 
particular requester and the non-public nature of the document itself. 
Each time a document is requested, the submitter receives a notice and 
opportunity to comment on release to that particular requester. With 
all requests, Commission staff reviews the document to determine 
whether it qualifies as CEII, verifies the requester's identity and 
need for the information requested, and seeks to obtain an appropriate 
non-disclosure agreement from the requester. Where the submitter of the 
document provides information regarding the request or requester, the 
staff factors such information into its recommendation to the CEII 
Coordinator. When the request involves a Commission-generated document, 
the CEII Coordinator releases the document to the requester at the time 
the decision to release is made. In cases where the document has been 
submitted to the Commission, the CEII Coordinator renders a decision on 
release, but release of the document is delayed by at least five days 
to give the submitter notice prior to release of the document. Because 
of the required notice and comment period and the notice prior to 
release, it usually takes staff more time to process requests for 
documents submitted to the Commission than those that are internally 
generated.
    11. As of January 23, 2004, the Commission had received 126 
requests for CEII filed under the procedures laid out in Section 
388.113 of the Commission's regulations. See 18 CFR 388.113. These 
requests encompassed 2,230 documents. As of February 4, 2004, the 
Commission has granted or otherwise closed out 119 of these 
requests.\5\ None of the remaining requests has exceeded the suggested 
time limits for responding to such requests. The Commission has denied 
only seven requests, either in whole or in part. In three instances, 
the Commission denied the request in whole or in part because the 
information was subject to the attorney-client, attorney work product 
or deliberative process privileges. The Commission generally does not 
intend to release such information, regardless of whether or not it 
falls within the definition of CEII. The Commission denied four other 
requests because the requester did not agree to the terms of an 
appropriate non-disclosure agreement. In addition to formal requests 
for CEII under 18 CFR 388.113, Commission staff also received 171 
direct requests from owners or operators of facilities for 282 
documents containing CEII relating to their own facilities. Staff 
satisfied those requests, generally within a few days of receipt.
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    \5\ In thirteen instances, the requested information was not 
CEII, and could be made public. In twelve other cases, the 
requesters and submitters dealt directly with each other, and the 
requests were subsequently withdrawn.
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    12. As noted, Order Nos. 630-A and 643 committed to examine the 
functioning of the new rules after six months, and specified that the 
Commission would seek public comments regarding the processes at that 
time. This notice invites the public to comment on any problems they 
have experienced under the new procedures, or to suggest ways to 
improve the processes.
    The Commission orders:
    Comments regarding the processes established in Order Nos. 630, 
630-A, and 643 should be filed with the Office of the Secretary within 
30 days of the issuance of this order.

    By direction of the Commission.
 Magalie R. Salas,
 Secretary.
[FR Doc. 04-4096 Filed 2-24-04; 8:45 am]
BILLING CODE 6717-01-P