![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Critical Energy Infrastructure Information
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: October 3, 2006 (Volume 71, Number 191)]
[Rules and Regulations]
[Page 58273-58276]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03oc06-9]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
FERCOnlineSupport@FERC.gov), or the Public Reference Room at 202-502-
8371, TTY 202-502-8659 (e-mail at public.referenceroom@ferc.gov).
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.
? 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
? 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.
? 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