[Federal Register Volume 71, Number 191 (Tuesday, October 3, 2006)]
[Rules and Regulations]
[Pages 58273-58276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15820]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 388

[Docket No. RM06-24-000; Order No. 683]


Critical Energy Infrastructure Information

Issued September 21, 2006.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
issuing this final rule amending its regulations for gaining access to 
Critical Energy Infrastructure Information (CEII). The definition of 
CEII is being clarified to exclude information that the Commission 
never intended to be deemed as containing critical infrastructure 
information. In addition, procedural changes are being made based on 
over three years experience processing CEII requests. These changes 
simplify the procedures for obtaining access to CEII without increasing 
vulnerability of the energy infrastructure.

DATES: Effective Date: The rule will become effective November 2, 2006.

FOR FURTHER INFORMATION CONTACT: Teresina A. Stasko, Office of the 
General Counsel, GC-13, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426; 202-502-8317.

SUPPLEMENTARY INFORMATION:

    Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. 
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.

    1. It has been over three years since the Commission issued its 
final order on Critical Energy Infrastructure Information (CEII). 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). Since the issuance of Order No. 630, the Commission has 
continually monitored and evaluated the effectiveness of the CEII 
process. The most recent review indicates that changes are needed to 
assure the rules work in the manner intended.
    2. As explained below, the Commission makes strictly procedural 
changes in this instant and final rule. In a notice of proposed 
rulemaking in Docket No. RM06-23-000, which is being issued 
concurrently with this final

[[Page 58274]]

rule, the Commission proposes other changes, which require notice and 
comment. See 5 U.S.C. 553 (2000).
    3. In this final rule the Commission clarifies and limits the 
definition of CEII to minimize the amount of information which 
qualifies as CEII, and makes the following changes to its regulations: 
(1) The definition of CEII is clarified; and (2) requesters are 
required to submit executed non-disclosure agreements (NDA) with their 
requests. In addition, the Commission is providing notice that, for 
CEII requests, the notice and opportunity to comment on a request will 
be combined with the notice of release. The Commission further takes 
this opportunity to reiterate its requirement that submitters segregate 
CEII from other information and file as CEII only information which 
truly warrants being kept from public access. Accordingly, this rule is 
being issued as an instant and final rule because it only concerns 
procedural matters. See 5 U.S.C. 553(b)(3)(A) (2000).
    4. In a notice of proposed rulemaking in Docket No. RM06-23-000 
issued concurrently with this final rule, the Commission seeks comments 
on, among other things: (1) Revisions to its regulations regarding CEII 
requests; (2) the limited portions of various forms and reports the 
Commission now defines as containing CEII; and (3) its proposal to 
abolish the non-Internet public (NIP) designation.

Background

    5. 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 (2000) and in the Commission's 
regulations at 18 CFR 388.108 (2001). 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. See Notice of Rulemaking and Revised Statement of 
Policy, 67 FR 57994 (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. See 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. See 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 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. Also on July 23, 2003, the Commission issued Order No. 643, 
which revised the Commission's regulations to require companies to make 
certain information available directly to the public under certain 
circumstances. These revisions were necessary to conform the 
regulations to Order No. 630. See Order No. 643, 68 FR 52089, FERC 
Stats. & Regs. ] 31,149 (2003). In Order No. 662, the Commission 
modified its CEII regulations to ease 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 simplified federal 
agencies' access to CEII. See Order No. 662, 70 FR 37031, FERC Stats. & 
Regs. ] 31,189 (2005).

Summary and Discussion

I. Regulatory Changes

A. Clarification of What Constitutes CEII
    6. The CEII regulations were designed to restrict unfettered 
general public access to critical energy infrastructure information, 
but still permit those with a need for the information to obtain it in 
an efficient manner. In other words, CEII reflects a delicate balance 
between the due process rights of interested persons to participate 
fully in Commission proceedings and the Commission's responsibility to 
protect public safety by ensuring that access to CEII does not 
facilitate acts of terrorism. Although CEII was intended only to 
protect detailed information that would aid a terrorist attack, many 
submitters overutilize the designation. Therefore, the Commission is 
specifically clarifying and refining the definition to better inform 
companies of what constitutes CEII to limit the amount of material 
which constitutes CEII. CEII is clarified as specific engineering, 
vulnerability, or detailed design information about proposed or 
existing critical infrastructure that: (1) Relates details about the 
production, generation, transportation, transmission, or distribution 
of energy; (2) could be useful to a person in planning an attack on 
critical infrastructure; (3) is exempt from mandatory disclosure under 
the Freedom of Information Act, 5 U.S.C. 552 (2000); and (4) does not 
simply give the general location of the critical infrastructure. The 
particular clarifications consist of adding the words ``specific 
engineering, vulnerability, or detailed design'' at the beginning of 
Sec.  388.113(c)(1) and adding the words ``details about'' at the 
beginning of Sec.  388.113(c)(1)(i).
    7. The Commission further clarifies that narratives such as the 
descriptions of facilities and processes are generally not CEII unless 
they describe specific engineering and design details of critical 
infrastructure.
B. Requirement To Provide an Executed Non-Disclosure Agreement With a 
CEII Request
    8. Requesters will now be required to submit an executed non-
disclosure agreement with their signed requests. As CEII contains 
information that may be used to harm the critical infrastructure of the 
United States, it is only fitting to require that a requester execute 
an agreement not to disclose the information, and provide that 
agreement with his or her request. Often processing of a request is 
delayed because the requester does not promptly submit an executed non-
disclosure agreement upon request. Posted on the Commission's Web site 
at http://www.ferc.gov are the various non-disclosure agreements that 
pertain to various types of requesters. For example, a member of the 
media should submit the non-disclosure agreement entitled Media NDA. If 
a requester does not know the appropriate non-disclosure agreement to 
submit with his or her request, he or she may contact the Office of 
External Affairs at (202) 502-8004. Including an executed non-
disclosure agreement with an executed request will help to expedite 
processing of requests. A CEII request will not be accepted until the 
Commission receives an executed NDA.

II. Reiteration of Current Regulatory Standards

A. Notice and Opportunity To Comment and Notice Prior To Release
    9. Section 388.112(d) of the Commission's regulations provides 
that, among other things, when a CEII requester seeks a document for 
which CEII status has been claimed, or when

[[Page 58275]]

the Commission itself is considering releasing such a document, the 
Commission will provide the submitter of the document notice and an 
opportunity to comment. 18 CFR 388.112(d) (2006). Section 388.112(e) of 
the Commission's regulations provides that, among other things, the 
Commission or an appropriate official will give notice to the submitter 
prior to release of a document for which CEII status has been claimed. 
18 CFR 388.112(e) (2006). In processing CEII requests, it has been the 
practice of the Commission to issue these notifications separately. 
Henceforth, the Commission will provide the notice and opportunity to 
comment in the same document as the notice of release.
    10. The Commission acknowledges that the notice and comment process 
affords the Commission the opportunity to get information on the 
requester from the submitter, who may be most familiar with the 
requester, and the opportunity to get the submitter's input into 
potential harm from release of the information. However, experience has 
shown that only in a limited number of requests has the submitter 
provided information about the requester. In many instances, the 
submitter provides a boilerplate response that does not address release 
of information to a particular requester. In an effort to increase the 
efficiency of processing CEII requests, the Commission will combine the 
notice of release with an opportunity to comment. Submitters may still 
provide comments or input upon notice of release. The release would 
proceed as scheduled unless the CEII Coordinator or her designee 
receives opposition to release, in which case the CEII Coordinator or 
his or her designee will issue a revised notice. The vast majority of 
submitters support release with a properly executed NDA. Only in 
extremely rare instances would a submitter's comments be the 
determinative factor in not releasing CEII. These rare instances should 
not impede an efficient CEII process. In the event a submitter provides 
comments opposing release, the information would not be released until 
the submitter receives a revised notice of release.
B. Requirement To Segregate and Justify CEII
    11. The CEII process was not intended as a mechanism for companies 
to withhold from public access information that does not pose a risk of 
attack on the energy infrastructure. Therefore, in an effort to achieve 
proper designation while avoiding misuse of the CEII designation, the 
Commission reiterates its requirement that submitters segregate public 
information from CEII and file as CEII only information which truly 
warrants being kept from ready public access.
    12. To this end, the Commission emphasizes that the Commission's 
regulation at 18 CFR 388.112(b)(1) requires that submitters provide a 
justification for CEII treatment. The way to properly justify CEII 
treatment is by describing the information for which CEII treatment is 
requested and explaining the legal justification for such treatment.
C. Enforcement of Proper Designation and Justification
    13. The Commission retains its concern for filing abuses and will 
take action against applicants or parties who knowingly misfile 
information as CEII, including rejection of an application where 
information is mislabeled as CEII or where a legal justification is not 
provided. Further, concurrent with this order, the Commission is 
issuing a notice of proposed rulemaking in Docket No. RM06-23-000 
seeking comments on its proposal to, among other things, clarify what 
specific portions of various forms and reports submitted to the 
Commission contain CEII.

Information Collection Statement

    14. The Office of Management and Budget's (OMB's) regulations 
require that OMB approve certain information collection requirements 
imposed by agency rule. See 5 CFR 1320.12 (2006). 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

    15. 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. See 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). 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. See 18 CFR 
380.4(a)(2)(ii) (2006). This rule is procedural in nature and therefore 
falls under this exception; consequently, no environmental 
consideration is necessary.

Regulatory Flexibility Act Certification

    16. The Regulatory Flexibility Act of 1980 (RFA) generally requires 
a description and analysis of final rules that will have significant 
economic impact on a substantial number of small entities. 5 U.S.C. 
601-612 (2000). The Commission is not required to make such analyses if 
a rule would not have such an effect. The Commission certifies that 
this rule will not have such an impact on small entities.

Document Availability

    17. 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.
    18. 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.
    19. 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

    20. These regulations are effective November 2, 2006. The 
provisions of 5 U.S.C. 801 (2000) 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,

[[Page 58276]]

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, paragraphs (c)(1), (d)(3)(i), and (d)(3)(ii) are 
revised to read as follows:


Sec.  388.113  Accessing critical energy infrastructure information.

* * * * *
    (c) * * *
    (1) Critical energy infrastructure information means specific 
engineering, vulnerability, or detailed design information about 
proposed or existing critical infrastructure that:
    (i) Relates details about the production, generation, 
transportation, transmission, or distribution of energy;
    (ii) Could be useful to a person in planning an attack on critical 
infrastructure;
    (iii) Is exempt from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552; and
    (iv) Does not simply give the general location of the critical 
infrastructure.
* * * * *
    (d) * * *
    (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. A requester must also file an executed non-disclosure 
agreement. Requesters are also requested to include their social 
security number for identification purposes.
    (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. 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. E6-15820 Filed 10-2-06; 8:45 am]
BILLING CODE 6717-01-P