[Federal Register Volume 70, Number 50 (Wednesday, March 16, 2005)]
[Notices]
[Pages 12867-12868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4947]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. RM02-4-003 and PL02-1-003]


Critical Energy Infrastructure Information; Notice Soliciting 
Public Comment

March 3, 2005.
    1. On August 3, 2004, the Federal Energy Regulatory Commission (the 
Commission) issued a final rule in Order No. 649 amending its 
regulations for gaining access to critical energy infrastructure 
information (CEII).\1\ The Commission issued Order No. 649 in response 
to public comments it had solicited on the operation of its newly-
implemented CEII rules. In Order No. 649, the Commission committed to 
continue its monitoring and review of its CEII program and to examine 
the effectiveness of the rules within one year. In order to facilitate 
this review, the Commission is issuing this notice soliciting public 
comment on the effectiveness of its CEII process.
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    \1\ Critical Energy Infrastructure Information, Order No. 649, 
69 FR 48386 (Aug. 10, 2004).
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Background

    2. Although the Commission's CEII process was established in Order 
No. 630 in March 2003,\2\ its efforts began shortly after the attacks 
of September 11, 2001 with the issuance of a policy statement in PL02-
1-000 (Policy Statement). See Statement of Policy on Treatment of 
Previously Public Documents, 66 FR 52917 (Oct. 18, 2001), 97 FERC ] 
61,130 (2001). In its Policy Statement, the Commission explained its 
removal of certain previously-public records from public access through 
the Public Reference Room, the Commission's document retrieval system, 
and the Internet. The documents affected by the Policy Statement 
included oversized maps and other categories of records likely to 
detail specifications of facilities licensed or certified by the 
Commission. The Policy Statement advised the public to request such 
information in accordance with 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 (2004).
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    \2\ Critical Energy Infrastructure Information, Order No. 630, 
68 FR 9857 (Mar. 3, 2003), FERC Stats. & Regs. ] 31,140 (2003).
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    3. In January 2003, the Commission issued a notice of inquiry (the 
NOI) that raised issues for public comment and 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 identified information the Commission was seeking to 
protect as ``critical energy infrastructure information,'' or ``CEII,'' 
and asked for public comment on how to define the scope of the term. 
The NOI also invited public comment on the Commission's 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.
    4. After reviewing the comments received in response to the NOI, 
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 expanded the proposed definition of CEII to include 
detailed information about proposed facilities as well as those already 
licensed or certificated by the Commission. In addition, it proposed a 
new process that would 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.
    5. On February 21, 2003, the Commission issued its CEII rule in 
Order No. 630. The Commission 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.
    6. After receiving a request for rehearing on Order No. 630, the 
Commission issued Order No. 630-A, denying the request for rehearing, 
but amending the rule in several respects.\3\ 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.
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    \3\ Critical Energy Infrastructure Information, Order No. 630-A, 
68 FR 46456 (July 23, 2003), FERC Stats. & Regs. ] 31,147 (2003).
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    7. The first CEII review was initiated with a notice soliciting 
public comment that was issued on February 13, 2004.\4\ After reviewing 
the comments received, the Commission made a few additional changes to 
the CEII process in Order No. 649.\5\ The Commission changed the 
treatment of boundary maps from CEII to NIP. It also agreed that 
federal agencies would not have to file more than one request for CEII 
in one docket, and that agents of owners and operators of facilities 
could get information on their clients' facilities outside the CEII 
process with written authorization from the owner/operator. As with the 
earlier order on rehearing, the Commission committed to re-examine the 
effectiveness of its CEII rules within the

[[Page 12868]]

next year. This order is intended to facilitate that review.
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    \4\ Notice Soliciting Public Comment, 69 FR 8638 (Feb. 25, 
2004).
    \5\ Critical Energy Infrastructure Information, Order No. 649, 
69 FR 48386 (Aug. 10, 2004), FERC Stats. & Regs. ] 31,167 (2004).
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Experience To Date

    8. Since Order No. 630 became effective on April 2, 2003, the 
Commission has received many filings where the submitters have 
requested non-public treatment of documents because they contained 
CEII. In addition, Commission staff has designated certain internally-
generated documents as CEII as well. Despite the amount of information 
that has been designated as CEII, the Commission has received 
relatively few complaints that the rules have impaired requesters' 
ability to participate meaningfully in Commission proceedings. As 
discussed below, the Commission has taken steps to minimize the harm to 
requesters in such cases. The Commission has not received any requests 
for rehearings of CEII Coordinator decisions to date.\6\
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    \6\ Commission action on CEII requests is delegated to the CEII 
Coordinator, whose decisions are subject to rehearing. No requester 
has pursued a request for rehearing of any of the CEII decisions 
rendered to date.
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    9. Once a CEII request is received, the appropriate staff members 
locate the document requested and provide 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 of the request 
and gives the submitter a period of at least five days in which to 
comment on both release to the particular requester and the non-public 
nature of the document itself, including FOIA exemptions applicable to 
the document. Each time a document is requested, the submitter receives 
a notice and opportunity to comment on release to that particular 
requester. Commission staff reviews each requested 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 with the order granting the request. In cases where the 
document has been submitted to the Commission, the CEII Coordinator 
issues 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.
    10. The Commission has been largely successfully in its goal of 
processing CEII requests expeditiously. However, as discussed below, 
there have been some instances where the sensitivity of certain 
requested documents required additional research, and in one instance 
warranted a vote of the Commission to establish the appropriate 
standard for release of those documents.\7\ In those instances 
involving the Weaver's Cove application to construct a liquefied 
natural gas facility in CP04-36-000, the process took longer than 
usual. Some of those requests were denied for failure to agree to the 
terms of a non-disclosure agreement specified by the CEII 
Coordinator.\8\ In other instances, portions of one document were not 
released because the harm from release outweighed the requesters' need 
for the information.\9\ In order to minimize harm to requesters 
receiving CEII in the Weaver's Cove proceeding, the Secretary issued a 
notice giving such requesters additional time in which to file comments 
on the draft environmental impact statement.\10\ The Commission 
believes the steps it has taken have protected the due process rights 
of those involved in the proceeding.
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    \7\ Alfred Lima, 110 FERC ] 61,002 (Jan. 5, 2005).
    \8\ Edward M. Lambert, Jr., et al., 110 FERC ] 62,050 (Jan. 21, 
2005).
    \9\ See, e.g., Lima, 110 FERC ] 61,002 (Jan. 5, 2005).
    \10\ Weaver's Cove Energy, L.L.C., 70 FR 4838 (Jan. 31, 2005).
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    11. The Commission received 79 requests for CEII in FY 2003, 304 
CEII requests in FY 2004, and as of February 18, 2005, has received 162 
CEII requests for FY 2005. As of February 18, 2005, there were 109 CEII 
requests pending. The vast majority of those pending were either filed 
after January 1, 2005 or are awaiting information from the requester, 
such as the non-disclosure agreement. The majority of the requests that 
have been denied were denied for failure to agree to the terms of a 
non-disclosure agreement. The other denials were either because of the 
extreme sensitivity of the information (in the case of one Weaver's 
Cove document), or because the information was subject to the attorney-
client, attorney work product, or deliberative process privileges, or 
protected by statute (e.g., cultural resource locations). The 
Commission generally does not intend to release privileged information, 
regardless of whether or not it falls within the definition of CEII. In 
addition to formal requests for CEII under 18 CFR 388.113, Commission 
staff also received numerous direct requests from owners or operators 
of facilities and their authorized agents for documents containing CEII 
relating to their own facilities. Staff generally satisfies those 
owner/operator requests within a few days of receipt.
    12. As noted in Order No. 649, the Commission remains committed to 
examining the effectiveness of its CEII rules, and therefore seeks 
public comments regarding its CEII process. This notice invites the 
public to comment on its experience under the CEII procedures and to 
suggest ways to improve the process. While the public is free to 
provide comments on any aspect of the Commission's CEII rules, the 
Commission specifically invites comments on the following issues:
    i. Is the CEII designation being misused or claimed for information 
that does not meet the definition?
    ii. Is there a need for the non-Internet public designation? Is it 
currently too broad? Are there location maps that should be available 
on the Internet?
    iii. Does it make sense for the Commission to protect (either as 
CEII or NIP) information that is readily publicly available, for 
instance in USGS maps?
    iv. Are there classes of information that are not appropriate for 
release even when a legitimate requester agrees to the terms of an 
appropriate non-disclosure agreement?
    The Commission orders:
    Comments regarding the Commission's CEII process should be filed 
with the Office of the Secretary within 30 days of the issuance of this 
order.

    By direction of the Commission.
Linda Mitry,
Deputy Secretary.
[FR Doc. 05-4947 Filed 3-15-05; 8:45 am]
BILLING CODE 6717-01-P