[Federal Register Volume 69, Number 153 (Tuesday, August 10, 2004)]
[Rules and Regulations]
[Pages 48386-48391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18189]


-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 388

[Docket Nos. RM02-4-002, PL02-1-002, RM03-6-001; Order No. 649]


Critical Energy Infrastructure Information

Issued August 3, 2004.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
issuing this final rule amending its regulations for gaining access to 
critical energy infrastructure information (CEII). These changes are 
being made based on comments filed in response to the February 13, 2004 
notice seeking public comment on the effectiveness of the Commission's 
CEII rules. The final rule

[[Page 48387]]

primarily eases the burden on agents of owners or operators of energy 
facilities that are seeking CEII relating to the owner/operator's own 
facility. The rule also simplifies federal agencies' access to CEII. 
These changes will facilitate legitimate access to CEII without 
increasing vulnerability of the energy infrastructure.

EFFECTIVE DATE: The rule will become effective September 9, 2004.

FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the 
General Counsel, GC-13, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426, (202) 502-8521.

SUPPLEMENTARY INFORMATION:
    Before Commissioners: Pat Wood, III, Chairman; Nora Mead Brownell, 
Joseph T. Kelliher, and Suedeen G. Kelly.
    1. On February 13, 2004, the Commission issued a ``Notice 
Soliciting Public Comment'' (the Notice) on its procedures for dealing 
with critical energy infrastructure. 69 FR 8636 (Feb. 25, 2004). The 
Commission's CEII procedures were established by Order Nos. 630 and 
630-A. See Critical Energy Infrastructure Information, Order No. 630, 
68 FR 9857 (Mar. 3, 2003), FERC Stats. & Regs. ] 31,140 (2003); order 
on reh'g, Order No. 630-A, 68 FR 46456 (Aug. 6, 2003), FERC Stats. & 
Regs. ] 31,147 (2003). In Order Nos. 630-A and 643,\1\ the Commission 
committed to solicit public comment after six months in order to 
identify any potential problems with the Commission's regulations 
regarding CEII. The Notice provided an opportunity for those with 
experience under Order Nos. 630, 630-A, and 643 to provide feedback on 
the CEII process. The Commission received comments on Order Nos. 630 
and 630-A from the following five entities: the American Public Power 
Association and Transmission Access Policy Study Group (APPA/TAPS), the 
Hydropower Reform Coalition (HRC), the National Hydropower Association 
(NHA), Southern California Edison Company (SCE), and the United States 
Department of Interior (DOI). No comments were received regarding Order 
No. 643. In light of those comments and the Commission's own 
experience, this order amends 18 CFR 388.113 and clarifies some other 
points regarding CEII.
---------------------------------------------------------------------------

    \1\ Amendments to Conform Regulations With Order No. 630 
(Critical Energy Infrastructure Information Final Rule), Order No. 
643, 68 FR 52089 (Sept. 2, 2003), FERC Stats. & Regs. ] 31,149 
(2003). Order No. 643 amended several Commission regulations to 
eliminate requirements that filers provide outsiders with 
information that qualifies as CEII under 18 CFR 388.113.
---------------------------------------------------------------------------

Background

    2. The Commission began its efforts with respect to CEII shortly 
after the attacks of September 11, 2001. See Statement of Policy on 
Treatment of Previously Public Documents, 66 FR 52917 (Oct. 18, 2001), 
97 FERC ] 61,130 (2001). The Commission's initial step was to remove 
from its public files and Internet page documents such as oversized 
maps that were likely to contain detailed specifications of facilities 
licensed or certified by the Commission, directing the public to 
request such information pursuant to the Freedom of Information Act 
(FOIA) process detailed in 5 U.S.C. 552 and in the Commission's 
regulations at 18 CFR 388.108. In September 2002, the Commission issued 
a notice of proposed rulemaking regarding CEII, which proposed an 
expanded definition of CEII to include detailed information about 
proposed facilities as well as those already licensed or certificated 
by the Commission. Notice of Rulemaking and Revised Statement of 
Policy, 67 FR 57,994 (Sept. 13, 2002); FERC Stats. & Regs. ] 32,564 
(2002). The Commission issued its final rule on CEII on February 21, 
2003, defining CEII to include information about proposed facilities, 
and to exclude information that simply identified the location of the 
infrastructure. Order No. 630, 68 FR 9857, FERC Stats. & Regs. ] 
31,140. 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. Order No. 
630-A, 68 FR 46456, FERC Stats. & Regs. ] 31,147. 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 the aforementioned commitment to review the 
effectiveness of the new process after six months. The Notice issued on 
February 13, 2004, facilitated the review contemplated in Order No. 
630-A. This order addresses the comments received in response to the 
Notice.

Summary and Discussion of Comments Received

A. Clarification and Guidance on What Constitutes CEII

    3. The comments received fall primarily into the following two 
broad categories: Concerns about inconsistencies and over-designation 
of material as CEII, and concerns regarding the CEII clearance/approval 
process. The HRC and NHA both indicate that there is a need for 
additional guidance and clarity regarding which materials qualify for 
CEII and NIP protection. HRC at p. 2; NHA at pp. 1-3. The HRC states 
that submitters are over-designating information as CEII, and claims 
that ``the breadth of information submitted as CEII has led to an 
unnecessary withholding of information that does not meet the 
regulatory definition.'' HRC at pp. 2-3. The HRC notes that permitting 
some filers to over-designate information as CEII is unfair both to 
those who claim CEII status prudently and those who are unable to 
access information that should be publicly available. The HRC 
encourages the Commission to assume responsibility for reviewing 
information as it is submitted to determine whether it qualifies as 
CEII, and classify it accordingly. HRC at p. 2. As now explained, 
although such an approach might add consistency, the Commission does 
not believe such an approach is necessary or practical.
    4. Even before CEII existed, the Commission's rule at 18 CFR 
388.112 permitted filers to designate information for non-public 
treatment. Such documents received non-public treatment by default 
until the Commission or a member of the public (through the filing of a 
FOIA request) questioned whether or not the information deserved non-
public treatment. The Commission never found it necessary to review 
claims for non-public treatment prior to affording documents such 
status in order to save a requester the time and expense of filing a 
FOIA request for the information. Indeed, the burden on the Commission 
associated with previewing each such filing would be excessive.
    5. Similarly, the Commission presently does not see a need to 
review claims for CEII treatment before anyone has indicated an 
interest in the document by filing a CEII request. CEII requests 
usually present less burden and greater chance of success than FOIA 
requests. There is no fee associated with a request for CEII. In 
addition, CEII requests are granted more often than FOIA requests, 
giving requesters access to information that would not be available to 
them under the FOIA. Nevertheless, although it is not practical for 
Commission staff to review all material filed as CEII, staff will 
continue to take steps to have the status of information promptly 
changed if they notice information has erroneously been filed as CEII. 
Those steps include notice

[[Page 48388]]

and an opportunity for the submitter to defend the CEII designation, 
and notice to the submitter prior to denying CEII status to the 
document. For documents designated as CEII by the Commission, CEII 
status can be changed even more quickly, without notice or an 
opportunity for comment. The Commission encourages members of the 
public to bring such matters to the attention of its staff, who are 
committed to responding timely.\2\
---------------------------------------------------------------------------

    \2\ The Commission's staff responsible for processing CEII 
requests and other matters are located within the Office of External 
Affairs and the General and Administrative Law section of the Office 
of the General Counsel.
---------------------------------------------------------------------------

    6. In addition, the Commission believes improving instructions to 
filers and Commission staff regarding which information qualifies for 
treatment as CEII is an effective way to combat the problem of 
inconsistency in claims for CEII treatment. Therefore, the Commission 
will be providing additional direction to filers on this subject, and 
will begin this effort in the area of hydropower information because 
that appears to be the area of the most uncertainty. Any guidance 
developed will be disseminated to the appropriate entities through the 
relevant industry associations, namely the National Hydropower 
Association, the Edison Electric Institute, and the Interstate Natural 
Gas Association of America by the effective date of this rule. In 
addition, as suggested by the NHA, the Commission will designate 
certain staff members in each program area who will be available to 
answer specific questions filers may have regarding appropriate 
designation of certain information. This contact information will be 
made available on the Commission's Web site within the same timeframe.
    7. The HRC also questions whether the Commission's definition of 
CEII is too broad. The Commission 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 a person in planning an attack of 
critical infrastructure; (iii) Is exempt from mandatory disclosure 
under the [FOIA]; and (iv) Does not simply give the location of the 
critical infrastructure.'' 18 CFR 388.113(c)(1). The HRC is concerned 
that parts two and four of the definition are too broad. HRC at p. 5. 
As an initial matter, the Commission notes that its definition of CEII 
is limited to information that is exempt from disclosure under the 
FOIA, and the remaining elements of the definition only serve to create 
a subset of FOIA-exempt information that may be released to requesters 
who evidence a need for such information. While the Commission agrees 
that part two of the definition is fairly subjective, the requirement 
that the information fall within a FOIA exemption serves to limit its 
applicability appropriately. As discussed above, the Commission will 
provide additional guidance that will help define elements two and four 
of the definition.
    8. The HRC also raises the issue of the Commission's reliance on 
FOIA Exemption 7 to protect CEII, stating ``FERC's current 
interpretation of FOIA's exemptions is disturbingly broad particularly 
with respect to information compiled for law enforcement purposes.'' 
HRC at p. 3. The HRC notes that Exemption 7 has traditionally been used 
to protect information relating to criminal investigations, and states 
that FERC's use of Exemption 7 to protect CEII ``is neither legally 
defensible nor good public policy.'' HRC at p. 4. The Commission 
disagrees. While it is true that Exemption 7 has most often been 
applied in the context of criminal investigations, it is not limited to 
that context. Courts have found that both the Federal Communication 
Commission's authority to revoke or deny licenses and the Federal Trade 
Commission's authority over advertising practices were law enforcement 
activities. See Kay v. FCC, 867 F. Supp. 11, 16-18 (D.DC 1994); 
Ehringhaus v. FTC, 525 F. Supp. 21, 22-23 (D.DC 1980). More recently, 
courts have found that the law enforcement threshold was met with 
respect to Bureau of Reclamation dam inundation maps used to develop 
emergency actions plans. See Living Rivers, Inc. v. United States 
Bureau of Reclamation, 272 F. Supp. 2d 1313, 1316 (D. Utah 2003). This 
is very similar to information protected by the Commission in the 
hydropower area. The Commission continues to believe that such 
information may appropriately be protected under Exemption 7(F).
    9. The HRC indicates particular concern regarding project boundary 
maps. In Order No. 630, the Commission specified that ``maps of 
projects (including location of project works with respect to water 
bodies, permanent monuments, or other structures that can be noted on 
the map and recognized in the field) such as those found in Exhibit G'' 
are considered to be CEII. 68 FR at 9862, FERC Stats. & Regs. ] 31, 140 
at p 32. In light of the concerns raised by the HRC regarding project 
boundary maps, the Commission has revisited this issue, and determined 
that such information should not be treated as CEII. The Commission 
hereby directs that in the future such maps generally should not be 
treated as CEII or submitted with requests for CEII treatment, but 
should instead be submitted as NIP information in accordance with 18 
CFR 388.112 and instructions from the Office of the Secretary.

B. Handling CEII Requests

    10. The commenters raise several issues regarding the filing and 
processing of CEII requests. The HRC contends that it is unnecessarily 
burdensome to require individual members of an organization to file 
separate requests and non-disclosure agreements (NDAs). See HRC at pp. 
7-8. The Commission disagrees. When it first adopted the CEII request 
rules, the Commission chose not to clear entire entities, deciding 
instead to clear each individual requesting access. As the Commission 
noted in Order No. 630, ``the more people who have access to 
information, the greater likelihood that it may find its way into the 
wrong hands.'' Order No. 630, 68 FR at p. 9865, FERC Stats. & Regs. ] 
31,140 at p 48. The Commission believes that the current approach is 
necessary to effectively limit the number of people getting access to 
CEII. Moreover, the burden associated with filing a CEII request is 
minimal. For the ease of requesters, the Commission has posted a form 
on its Web site that requesters may use to file a request, which 
simplifies the request process. See http://www.ferc.gov/help/how-to/file-ceii.asp. The average request takes approximately five minutes to 
complete. To read and sign a non-disclosure agreement requires about 
the same amount of time. Under the circumstances, the Commission 
believes that the current policy of requiring each requester to file 
separately continues to be the best way to control access to CEII, and 
does not pose an undue burden on requesters.
    11. While noting that for the most part their members have not had 
problems gaining access to CEII, the HRC suggests that the Commission 
consider automatically allowing all parties in a proceeding access to 
the same information in the proceeding, including CEII. HRC at p. 8. 
The Commission is reluctant to automatically grant parties access to 
CEII because it may cause people to intervene solely to receive CEII. 
Under the Commission's rules, ``[i]f no answer in opposition to a 
timely motion to intervene is filed within 15 days after the motion to 
intervene is filed, the movant becomes a party at the end of the 15 day 
period.'' 18 CFR 385.214(c)(1). Therefore, many motions

[[Page 48389]]

to intervene are granted with no evaluation of the motion. The 
Commission is not comfortable granting CEII access without an 
affirmative analysis of the requester and his or her need for the 
information, so it will not automatically grant interveners access to 
CEII. Alternatively, the HRC urges the Commission to adopt a lower 
threshold for parties to a proceeding where others in the proceeding 
have access to CEII. In effect, this already happens. Under the 
Commission's regulations, someone has a right to participate in a 
Commission proceeding if such right is granted by law, if they have or 
represent an interest which may be directly affected by the proceeding, 
or if their participation is in the public interest. 18 CFR 
388.214(b)(2). Therefore, if a CEII requester puts forth the same 
information required in a motion to intervene, that same information 
would most likely suffice to show that he is a legitimate requester 
with a need for the information requested, making it very likely his 
request for CEII would be granted.
    12. While the HRC is concerned that the Commission's rules are too 
burdensome on requesters, SCE is concerned that the Commission's 
threshold for granting requests for CEII is too low. SCE urges the 
Commission to ``provide stricter limitations on the use of the [CEII] 
and require a greater showing of legitimate need for the CEII requested 
in order to ensure its confidentiality is maintained.'' SCE at p. 2. 
SCE believes that absent a showing of a valid need and legitimate use 
of the information, little protection is afforded by the requester's 
willingness to sign a non-disclosure agreement. Id. The Commission has 
found that CEII such as Form Nos. 715 and 567 are heavily requested by 
consultants who use the information to advise clients, often not with 
respect to a particular docketed Commission proceeding. The Commission 
believes that it is not always necessary for requesters to identify a 
particular Commission matter or even a particular client in order to 
qualify as a legitimate requester, especially where the Commission has 
been able to verify that the individual or firm provides legitimate 
consulting services. These consultants often provide a valuable service 
by giving market participants information necessary to make business 
decisions regarding expansion of the infrastructure, ultimately making 
it less vulnerable to attack. The Commission is unwilling to restrict 
access to information necessary to make such critical decisions.
    13. The HRC also voices concern with the notice and comment process 
applicable to requests for information that has been submitted to the 
Commission with a request for CEII treatment, stating that ``FERC has 
not outlined a compelling reason to provide licensees with the 
opportunity [to] comment on the release of CEII to a requestor.'' HRC 
at p. 6. The notice and comment process existed previous to September 
11, 2001, with respect to information that was submitted to the 
Commission with a request for non-public treatment. The prior version 
of 18 CFR 388.112(d) stated that ``[w]hen a FOIA requester seeks a 
document for which privilege is claimed, 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.'' This 
provision has its foundations in Executive Order No. 12600, which 
applies specifically to confidential commercial information 
traditionally protected by FOIA Exemption 4. For more than fifteen 
years, the Commission has extended the procedural safeguards found in 
E.O. 12600 to any information submitted with a request for privileged 
treatment, and more recently in Order No. 630, the Commission extended 
those safeguards to information submitted with a request that it be 
treated as CEII. The executive order aside, the Commission believes 
there are benefits to affording the submitter of the information an 
opportunity to comment on the request. First, this gives the submitter 
of the information an opportunity to explain in more detail which 
exemption applies to protect the information and the potential harm 
that could result from disclosure of the information. Second, in many 
instances the submitter is familiar with the requester, and can provide 
information useful to the Commission in verifying the identity of the 
requester, providing a better foundation for the CEII Coordinator's 
decision. Third, if notice and comment were only afforded where the 
submitter claimed that the information was confidential commercial 
information, it would give companies incentives to make such claims 
where they might otherwise not be made.
    14. The HRC also claims that providing notice and an opportunity 
for submitters to comment on release ``could undermine a part[y's] 
negotiating position in a settlement proceeding.'' HRC at p. 6. The HRC 
goes on to state that ``[t]he CEII coordinator should be vested with 
the authority to determine when information qualifies as CEII and 
whether a requestor has demonstrated a need for the information.'' Id. 
The HRC appears to misunderstand the purpose of providing notice and an 
opportunity to comment. The submitter does not make the decision 
regarding whether the information is CEII or whether to release the 
information to the requester; the submitter's comments only inform the 
CEII Coordinator's decision. There have been numerous instances where 
the CEII Coordinator has released CEII despite the submitter's 
opposition to such a release. The Commission continues to find that the 
benefits of maintaining the notice and comment process outweighs the 
inconvenience to the requesters and concludes that there is little 
danger of the process undermining settlement proceedings.
    15. Although generally finding that the Commission responds 
``almost immediately'' to CEII requests, the HRC has indicated concern 
with the time it takes to process CEII requests, especially in matters 
with quick turnaround times, specifically referencing the Commission's 
integrated licensing process (ILP). HRC at p. 7. The Commission agrees 
that HRC has raised a legitimate concern given that the ILP has defined 
deadlines for all participants, including the Commission, throughout 
the process. However, the majority of the documents filed as part of 
the licensing process typically are not CEII, so the problem will not 
be widespread. Given the Commission's contemporaneous decision to no 
longer consider Exhibit G project boundary maps as CEII, the most 
likely information to be filed in the ILP as CEII is Exhibit F (details 
of project facilities),\3\ which will be part of the draft license 
application, if prepared, and the final license application filed with 
the Commission. The comment deadlines for these two steps are 90 days 
and 120 days respectively. Given these deadlines, requesters should 
have little trouble getting timely access to the information. In other 
instances with shorter timeframes, the Commission will strive to 
respond as quickly as possible. Requesters should highlight short 
deadlines so staff can expedite the request if possible. Requesters 
also have the option of seeking the information directly from the 
applicant, and the Commission will encourage applicants

[[Page 48390]]

to negotiate with requesters to provide CEII directly to them wherever 
possible. In fact, the Commission already encourages such cooperation.
---------------------------------------------------------------------------

    \3\ In Order No. 630, the Commission listed general design 
drawings such as those found in Exhibit F as an example of CEII 
commonly found in hydropower filings. 68 FR at p. 9862; FERC Stats. 
& Regs. ] 31,147 at p 32.
---------------------------------------------------------------------------

    16. The DOI has asked the Commission to loosen some of the 
requirements on federal agency requesters. Specifically, the DOI urges 
that ``[f]ederal agencies should be able to identify themselves one 
time in each proceeding, and be granted complete access to the docket 
from then on.'' DOI at p. 2. The Commission has reconsidered the 
position of federal agency requesters and agrees that once an agency 
has been granted access to CEII in a particular docket, it is entitled 
to receive subsequent CEII in that docket. However, the Commission will 
not assume an affirmative duty to transmit such information absent a 
subsequent request from the agency. Such subsequent request may be as 
informal as a phone call or e-mail to a staff contact requesting 
additional CEII in the docket. The burden must remain on the requesting 
agency to voice such requests; otherwise the burden on Commission staff 
to keep track of such ongoing requests would be too great.
    17. The NHA has requested clarification of the owner/operator 
request process, and has suggested that the Commission designate a 
specific person for owner/operators to contact to obtain CEII on their 
own projects. NHA at 3. Currently, 18 CFR 388.113(d)(1) provides that 
``[a]n owner/operator of a facility, including employees and officers 
of the owner/operator, may obtain CEII relating to its own facility 
directly from Commission staff without going through the procedures 
outlined in paragraph (d)(3) of this section.'' In most instances, the 
owner/operator representative has a contact on Commission staff and the 
CEII request is sent directly to that staff person. In cases where an 
owner/operator does not have a relationship with a staff person from 
the Office of Energy Projects, the request may be sent to the General 
and Administrative Law Section of the Commission's Office of the 
General Counsel, directed to the attention of Carol Johnson 
([email protected]). The telephone number for General and 
Administrative Law is 202-502-6457 and the facsimile number is 202-208-
0056.
    18. The NHA has also requested that the Commission alter its policy 
that agents of an owner/operator may not file CEII requests. The 
current regulation requires that agents or other non-employee 
representatives of owner/operators obtain CEII directly from the owner/
operator. In several instances this has resulted in an unwieldy 
process. The Commission has reconsidered its approach with respect to 
agents of owner/operators and has decided to permit the agents to have 
the same access as the owner/operator as long as they present written 
authorization from the owner/operator for such access. Therefore, the 
Commission is amending Sec.  388.113(d)(1) to include agents of owner/
operators, deleting Sec.  388.113(d)(2), and re-designating Sec.  
388.113(d)(3) as 388.113(d)(2).
    19. SCE requests that the Commission require that consultants agree 
to return or destroy CEII when the proceeding is finished, or within 
two years of receipt, arguing that Form No. 715 data does not 
necessarily become stale. SCE at pp. 2-3. SCE has advocated this 
approach in several of its responses to Form No. 715 notice and comment 
letters. The Commission has considered the advantages and disadvantages 
of placing time limits on a recipient's use of CEII. The advantage is 
that it limits the amount of time such information is vulnerable to 
disclosure. A primary disadvantage of such an approach is that it would 
require monitoring and follow up, which would be quite a large 
administrative task when one considers the volume of CEII requests, 
which are averaging over 200 requests per year thus far. Another 
problem is that some of the recipients use the CEII to develop some 
sort of product or database. Once the time limit expires, they would 
not only need to return the original information, they would have to 
dismantle the product or database that utilized the information. That 
could be an expensive proposition, and discourage recipients from 
undertaking the analysis in the first place. These analyses are often 
performed to assist market participants in making critical decisions 
about where to invest in new infrastructure. The Commission is 
reluctant to take steps that could discourage such analyses. Finally, 
the Commission does believe that the sensitivity of much of the 
information will diminish over time. For these reasons, the Commission 
declines to routinely place time limits on a recipient's access to 
CEII, but would consider doing so in a unique case where a compelling 
need could be shown.

C. Follow Up

    20. The APPA/TAPS cautions the Commission not to presume too much 
given the absence of complaints to date, noting that there have not 
been many controversial rate requests and no significant merger 
applications filed since the CEII rules took effect. APPA/TAPS at p. 2. 
The APPA/TAPS encourages the Commission to re-evaluate the 
effectiveness of the rules again in another year. Id. at p. 3. The HRC 
also urges the Commission to continue to evaluate the CEII rules 
``using measures of success in addition to evaluating comments and 
input from the public.'' HRC at p. 3. The Commission will continue to 
monitor and review the success of the CEII program. It will continue to 
be alert to situations where a party's ability to effectively 
participate in a proceeding may be impacted by the rules. In addition, 
the Commission will re-examine the effectiveness of the rules again 
within one year. That evaluation will take into account the potential 
threats and what level of protection is required given the current 
world situation.

Information Collection Statement

    21. The Office of Management and Budget's (OMB's) regulations 
require that OMB approve certain information collection requirements 
imposed by agency rule. 5 CFR 1320.12 (2004). This final rule does not 
impose any additional information collection requirements. Therefore, 
the information collection regulations do not apply to this final rule.

Environmental Analysis

    22. 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.\4\ 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 substantially change the 
effect of the regulations being amended. 18 CFR 380.4(a)(2)(ii). This 
rule is procedural in nature and therefore falls under this exception; 
consequently, no environmental consideration is necessary.
---------------------------------------------------------------------------

    \4\ 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).
---------------------------------------------------------------------------

Regulatory Flexibility Act Certification

    23. The Regulatory Flexibility Act of 1980 (RFA) \5\ 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

[[Page 48391]]

Commission certifies that this proposed rule, if finalized, would not 
have such an impact on small entities.
---------------------------------------------------------------------------

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

Document Availability

    24. 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.
    25. From FERC's Home Page on the Internet, this information is 
available in the Commission's document management system, eLibrary. The 
full text of this document is available on eLibrary in PDF and 
Microsoft Word format for viewing, printing, and/or downloading. To 
access this document in eLibrary, type the docket number excluding the 
last three digits of this document in the docket number field.
    26. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours. For assistance, please contact FERC 
Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at 
[email protected]), or the Public Reference Room at 202-502-
8371, TTY 202-502-8659 (e-mail at [email protected]).

Effective Date

    27. These regulations are effective September 9, 2004. 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.  388.113, paragraph (d)(1) is revised, paragraph (d)(2) is 
removed, and (d)(3) is redesignated as (d)(2), to read as follows:


Sec.  388.113  Accessing critical energy infrastructure information.

* * * * *
    (d) Optional procedures for requesting critical energy 
infrastructure information. (1) An owner/operator of a facility, 
including employees and officers of the owner/operator, may obtain CEII 
relating to its own facility directly from Commission staff without 
going through the procedures outlined in paragraph (d)(2) of this 
section. Non-employee agents of an owner/operator of such facility may 
obtain CEII relating to the owner/operator's facility in the same 
manner as owner/operators as long as they present written authorization 
from the owner/operator to obtain such information.
* * * * *
[FR Doc. 04-18189 Filed 8-9-04; 8:45 am]
BILLING CODE 6717-01-P