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15 November 2007
[Federal Register: November 14, 2007 (Volume 72, Number 219)]
[Rules and Regulations]
[Page 63980-63986]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no07-6]
[[Page 63980]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 388
[Docket No. RM06-23-000; Order No. 702]
Critical Energy Infrastructure Information
Issued October 30, 2007.
AGENCY: Federal Energy Regulatory Commission, DOE.
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 final rule
reflects comments filed in response to the September 21, 2006 notice
seeking public comment on proposed changes to the Commission's CEII
rules. The final rule: Modifies non-disclosure agreements; modifies the
Commission's process to allow the CEII Coordinator to respond to CEII
requests by letter; provides landowners access to alignment sheets for
the routes across or in the vicinity of their properties; includes a
fee provision; limits the portions of forms and reports the Commission
defines as containing CEII; eliminates as a category of documents the
Non-Internet Public designation; and provides that the Commission will
seek a requester's date and place of birth on a case-by-case basis
rather than require that information with every request for CEII.
Finally, the request for social security numbers is being eliminated.
DATES: Effective Date: The rule will become effective December 14,
2007.
FOR FURTHER INFORMATION CONTACT: Jeffrey H. Kaplan, Office of the
General Counsel, GC-13, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426, 202-502-8788.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly,
Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff
1. On September 21, 2006, the Commission issued a Notice of
Proposed Rulemaking (NOPR) on its procedures for dealing with critical
energy infrastructure information (CEII).\1\ After receiving comments
in response to the NOPR, the Commission amends and clarifies 18 CFR
388.113 and its CEII process.
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\1\ Critical Energy Infrastructure Information, 71 FR 58325
(October 3, 2006), FERC Stats. & Regs. ] 32,607 (2006).
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Background
2. Shortly after the attacks on September 11, 2001, the Commission
began its efforts with respect to CEII.\2\ As a preliminary step, the
Commission removed from its public files and Internet page documents
such as oversized maps that were likely to contain detailed
specifications of facilities, and directed the public to use the
Freedom of Information Act (FOIA) request process to obtain such
information.\3\ The Commission established its CEII rules in Order Nos.
630 and 630-A.\4\
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\2\ See Statement of Policy on Treatment of Previously Public
Documents, 66 FR 52917 (Oct. 18, 2001), 97 FERC ] 61,130 (2001).
\3\ The FOIA process is specified in 5 U.S.C. 552 and the
Commission's regulations at 18 CFR 388.108.
\4\ Critical Energy Infrastructure Information, Order No. 630,
68 Fed. Reg. 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).
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3. On the same day as the Commission issued the NOPR in this docket
it also issued an instant and final rule that clarified the definition
of CEII, required requesters of CEII to submit executed non-disclosure
agreements with their requests, and provided that the notice and
opportunity to comment on a CEII request would be combined with the
notice of release of information.\5\ Thus, the current procedures
require that each CEII requester file a signed, written request in
which he or she provides to the CEII Coordinator detailed information
about himself or herself and his or her need for the information, along
with an executed non-disclosure agreement. Commission staff verifies
and utilizes this information to determine whether to release the CEII
to the requester. The current process requires that Commission staff
verify each requester when each request is made. This final rule under
consideration here reflects the Commission's ongoing commitment to
evaluate the effectiveness of the CEII regulations and make changes as
necessary.
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\5\ See Critical Energy Infrastructure Information, Order No.
683, 71 FR 58273 (October 3, 2006), FERC Stats. & Regs. ] 31,228
(2006) (September 21 Order); order on reh'g, Order No. 683-A, 72 FR
18572 (April 13, 2007) (Order No. 683-A).
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Summary and Discussion of Comments Received
A. Introduction
4. In the NOPR, the Commission invited comments on the following
issues: (1) Annual certification for repeat requesters, (2) execution
of non-disclosure agreements by authorized representatives of
organizations on behalf of all of the organizations' employees, (3)
charging fees, (4) issuing letter responses to CEII requests; (5)
providing alignment sheets to landowners for the routes across or in
the vicinity of their properties; (6) limiting the portions of forms
and reports the Commission now defines as containing CEII; and (7)
eliminating the Non-Internet Public (NIP) designation. The Commission
received thirteen responses to the NOPR.\6\ While some of the comments
address the specific questions raised by the Commission, many of the
comments relate to other aspects of the CEII process. Commenters raise
issues regarding verification of requesters and the use of non-
disclosure agreements and how to ensure compliance with such
agreements. In addition, at least one commenter raises concerns about
CEII claims in the context of market-based rate filings, and how the
typical CEII response times makes it difficult to participate in such
proceedings. Several commenters raise issues regarding state agency
requests for CEII. These issues are discussed below.
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\6\ See Appendix A for a list of commenters. In addition to the
submitted comments, in the Commission's final rule on Regulations
for Filing Applications for Permits to Site Interstate Electric
Transmission Facilities, the Commission stated that copies of the
comments submitted by Western Energy Board, NARUC, and California
Resources will be placed in the official record in Docket No. RM06-
23-000, and will be addressed in this proceeding. See Regulations
for Filing Applications for Permits to Site Interstate Electric
Transmission Facilities, 71 FR 69440 (Dec. 1, 2006); FERC Stats. &
Regs. ] 31,234 (2006).
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B. Annual Certification for Repeat Requesters
5. Several commenters support the Commission's proposal to allow an
annual certification for repeat requesters.\7\ AGA states that
expediting access to frequent requesters is appropriate, particularly
since many parties, such as local distribution companies, need repeated
access to CEII to evaluate proposed certificate or rate and tariff-
related proposals.\8\ MidAmerican and Williston Basin both support
annual certification for repeat requesters provided that the submitter
of the CEII is given notice of each request.\9\ Similarly, INGAA
requests that the Commission clarify that submitters
[[Page 63981]]
of CEII receive notice of subsequent requests by certified requesters.
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\7\ Department of the Interior at p. 3, APPA and TAPS at pp. 5-
6, AGA at p. 3, and EEI Reply Comments at p. 5.
\8\ AGA at p. 3.
\9\ MidAmerican at pp. 2-3 and Williston Basin at p. 3.
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6. Although several commenters generally support eliminating
redundant requirements, they contend that an annual certification
period that does not require a non-disclosure agreement for each
requester is not appropriate in all instances.\10\ The Department of
the Interior suggests that once the CEII Coordinator determines that a
requester does not pose a security risk, there should be some mechanism
to consider changed circumstances.\11\ In addition, Dominion contends
that the Commission lacks meaningful sanctions for violations of a non-
disclosure agreement.\12\ EEI asserts that the Commission's proposal
does not clearly state that the first non-disclosure agreement signed
by a requester in a given year will apply to all subsequent releases of
CEII in that year to that requester.\13\
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\10\ Dominion at p. 6 and EEI Reply Comments at p. 5.
\11\ Department of the Interior at p. 3.
\12\ Dominion at p. 4.
\13\ EEI at pp. 10-11.
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7. The California Agencies contend that the NOPR relaxes the
required showing of a particular need for CEII for a twelve-month
period.\14\
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\14\ California Agencies at p. 9.
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Commission Determination
8. The Commission takes this opportunity to clarify several aspects
of its CEII procedures. First, the Commission encourages filers to
negotiate with requesters to provide data directly to the requesters,
where appropriate. Second, if a CEII requester receives an annual
certification, it simply means that the Commission does not have
concerns about releasing CEII to that individual. In response to the
concerns raised by MidAmerican, Williston Basin, and INGAA, such an
annual certification does not eliminate the current requirement to
notify the submitter of CEII and give the submitter an opportunity to
comment on all requests for CEII.\15\ In answer to the California
Agencies' concerns, as the Commission explained in the NOPR, with each
request, the requester will be required to provide detailed information
as to why he or she needs the CEII.\16\ In response to EEI's concern,
the Commission clarifies that the executed non-disclosure agreement
originally submitted by the requester will apply to all CEII the
requester receives from the Commission that year. In answer to the
Department of the Interior's concern for a mechanism to consider
changed circumstances, the Commission will modify the sample non-
disclosure agreements posted on its Web site to require that a
requester notify the Commission of any change in the information the
requester originally provided, e.g., a change in employment status.\17\
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\15\ See 18 CFR 388.112.
\16\ NOPR at P 5.
\17\ The Commission clarifies that it will continue to use the
five types of NDAs posted on its Web site, http://www.ferc.gov, with
the modifications discussed above. The five types of NDAs posted on
the Commission's Web site are: (1) A general NDA, (2) a media NDA,
(3) a state agency employee NDA, (4) a consultant NDA, and (5) a
Federal Agency Acknowledgement and Agreement.
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9. The commenters' concerns regarding the Commission's ability to
enforce the terms of the non-disclosure agreements are unwarranted. The
Commission will address any violations and utilize sanctions, where
appropriate, including civil penalties and criminal referrals. To date,
no violations of non-disclosure agreements have been alleged against
those granted access to CEII.
C. Authorized Representative of an Organization To Execute a Non-
Disclosure Agreement
10. A few commenters generally support allowing an authorized
representative of an organization to execute a non-disclosure agreement
on behalf of the organization's employees.\18\ Williston Basin requests
that the submitters of the CEII receive notice of all requests for
release and have an opportunity to comment, i.e., Williston Basin
requests that the Commission clarify that this current practice will
continue.\19\
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\18\ Williston Basin at p. 3, APPA and TAPS at p. 5, and EEI
Reply Comments at p. 5.
\19\ Williston Basin at p. 3.
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11. Several commenters oppose allowing a single representative to
execute a non-disclosure agreement on behalf of an entire
organization.\20\ A couple of commenters contend that certifying all
employees of a requesting organization is too broad as it would allow
access to CEII by individuals who may not need to review it.\21\
Similarly, INGAA states that the NOPR proposal that a ``member or
employee of an organization'' may obtain CEII on behalf of an
organization is too broad and undefined.\22\ The Allegheny Energy
Companies and Dominion express concerns regarding whether a
representative could bind an organization.\23\
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\20\ SCE at p. 2, AGA at p. 4, Dominion at p. 8, INGAA at pp. 2-
3, MidAmerican at p. 3, and EEI at p. 10.
\21\ AGA at p. 4 and MidAmerican at pp. 3-4.
\22\ INGAA at p. 3.
\23\ Allegheny at p. 7, Dominion at pp. 5-6.
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Commission Determination
12. After reviewing the comments received, the Commission is making
the following changes to its proposal in the NOPR. First, all
individuals in an organization with access to CEII must be named in the
non-disclosure agreement and must also execute the non-disclosure
agreement. Second, any subsequent additions to or deletions of names on
the non-disclosure agreement must be sent to the Commission as well as
to the submitter of the CEII. Further, the revised non-disclosure
agreement should be executed by the newly-named individuals. If there
is no written opposition within five (5) days of notifying the CEII
Coordinator and the submitter concerning the addition of any newly-
named individuals, the CEII Coordinator will issue a standard notice
accepting the additions of names to the non-disclosure agreement. If
there is a timely opposition from the submitter, the CEII Coordinator
will issue a formal determination addressing the merits of such
opposition. These changes attempt to ensure that all persons with
access to CEII acknowledge their responsibilities while avoiding
multiple filings from each organization.
D. Fee Provision
13. The Commission sought comments on its proposal to extend the
fee schedule used for FOIA requests to CEII requests. One commenter,
MidAmerican, states that it is appropriate to charge fees for
processing CEII requests.\24\ MidAmerican further states that, provided
the Commission's administrative costs for processing CEII requests are
similar to the costs of processing FOIA requests, it supports the
Commission's proposal.
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\24\ MidAmerican at p. 4.
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14. As explained in the NOPR, Commission staff expends valuable
time and resources searching, reviewing, and copying documents
responsive to CEII requests. The administrative costs of processing
CEII requests are similar to the costs of processing FOIA requests.
Therefore, the Commission's regulations will be modified to extend the
FOIA fee schedule to CEII requests.
E. Responding to CEII Requests With Letters
15. While most commenters do not address the Commission's proposal
to issue letters rather than delegated orders in response to CEII
requests, one commenter supports the proposal \25\ and two commenters
oppose it.\26\ EEI asserts
[[Page 63982]]
that the NOPR ``forc[es] submitters who oppose release to pursue
complex `reverse FOIA' litigation rather than the much more straight
forward rehearing request and appellate review.'' \27\ SCE contends
that the Commission's CEII regulations were specifically designed to
protect security and safety information, which is different from other
confidential information. Therefore, SCE asserts that parties should
not be denied remedies, including the right to rehearing, if they
believe a serious security risk is posed by the release of CEII.\28\
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\25\ MidAmerican at p. 2.
\26\ SCE at pp. 3-4; EEI at pp. 5-6.
\27\ EEI at p. 5. EEI contends that the September 21 Order's
combination of the notice and opportunity to comment with the notice
of release eliminates due process rights of CEII submitters by
reducing the notice period. The Commission addressed these concerns
in Order No. 683-A at P 9-11.
\28\ SCE at pp. 3-4.
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Commission Determination
16. In response to EEI's observation that those who object to the
CEII Coordinator's and General Counsel's decisions concerning access to
CEII will have to seek judicial rather than Commission remedies, we
take this opportunity to clarify and reiterate that a CEII
Coordinator's decision denying access to CEII may be appealed by a
requester to the General Counsel as a FOIA appeal pursuant to section
388.110. That is the process contemplated in the Administrative
Procedure Act \29\ for seeking information under the FOIA and there is
no reason to have a different process for CEII requests.\30\
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\29\ 5 U.S.C. Subchapter II.
\30\ Consistent with FOIA procedures, a CEII determination that
withholds information will explain the appeal rights of the CEII
requester.
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17. SCE is mistaken that the Commission has separate regulations
for CEII because the information is ``more sensitive than other non-
public information.'' \31\ To the contrary, as CEII, by definition, is
exempt from disclosure pursuant to FOIA,\32\ the Commission developed
its CEII regulations as a disclosure mechanism to provide CEII to those
with a legitimate need for it.\33\
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\31\ SCE at p. 3.
\32\ In its comments, AGA states that there appears to be the
potential for requesters to circumvent CEII protection by filing
FOIA requests. AGA at pp. 5-6. But in the event documents containing
CEII are deemed responsive to FOIA requests, they are exempt from
mandatory disclosure pursuant to Exemption 7(F). See 5 U.S.C. Sec.
552 (b)(7)(F). Therefore, CEII can only be obtained through the CEII
process.
\33\ See, e.g., Order No. 630 at P 16.
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F. Landowners' Access to Alignment Sheets
18. In the NOPR, the Commission proposed to grant access to
alignment sheets filed pursuant to section 380.12(c)(3)(ii) to
landowners for routes across or in the vicinity of their
properties.\34\ SCE does not oppose the proposal provided that the
landowners receive only those sheets related to their properties and
the alignment sheets retain the CEII designation.\35\ Several
commenters oppose this proposal and allege that granting access should
be accompanied by a non-disclosure agreement or some other restriction
on the publication of the information.\36\ EEI asserts that the
Commission's proposal is overbroad that there must be a limit on access
such as to those showing a substantial property nexus to the
project.\37\ INGAA suggests that the Commission specify which
landowners may obtain detailed alignment sheets by utilizing the
definition of landowners entitled to notice under section 157.6(d)(2)
\38\ of the Commission's regulations.\39\ Dominion and Williston Basin
state that there is some ambiguity concerning the proper classification
of alignment sheets as CEII seeks clarification of the type of
information found in alignment sheets that could be considered
CEII.\40\ Williston Basin also seeks clarification on whether companies
will be required to post the alignment sheets on their Web sites.\41\
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\34\ NOPR at P 13.
\35\ SCE at p. 4.
\36\ INGAA at pp. 3-4, AGA at pp. 4-5, Dominion at pp. 8-9, and
EEI at p. 10.
\37\ EEI at p. 10.
\38\ 18 CFR 157.6(d)(2) (2007).
\39\ INGAA at pp. 3-4.
\40\ Dominion at p. 9 and Williston Basin at p. 4.
\41\ Williston Basin at p. 4.
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Commission Determination
19. The Commission notes that alignment sheets can be labeled CEII
only if they contain qualifying detailed engineering information.
Alignment sheets often do not contain such detail, and, therefore, will
simply be public information. The Commission clarifies its proposal
that, for alignment sheets that do contain CEII, each landowner access
only the alignment sheet for the limited portion of a project that
would affect his or her land and the adjacent parcel on each side (or
those on the same alignment sheet). The Commission understands that a
landowner may want to discuss the proposed project with other family
members, with legal counsel, or others. The Commission will not limit
such discussions by requiring a landowner to sign a non-disclosure
agreement. The Commission further clarifies that it does not require
that companies post alignment sheets on their Web sites yet
acknowledges that companies may choose to do so based on their public
participation plans.
20. The Commission accepts INGAA's proposal to use the definition
of landowner at 18 CFR 157.6(d)(2) as the means of identifying which
landowners may obtain alignment sheets containing CEII without
executing non-disclosure agreements.
G. Forms Containing CEII
21. In the NOPR, the Commission provided guidelines for labeling
specific documents submitted to the Commission as CEII. There were
several comments regarding the guidelines.\42\ APPA and TAPS support
the guidance.\43\ MidAmerican suggests that the Commission incorporate
the guidelines into specific filing instructions for documents
regularly filed with the Commission.\44\ INGAA and Williston Basin both
note that the Commission did not include Exhibit G-II, which contains
flow diagram data, in its guidelines for identifying CEII.\45\ They
contend that this exhibit includes information that may be useful to
those with intent to do harm and request that the Commission include
Exhibit G-II in its guidelines as a document that contains CEII.\46\
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\42\ APPA and TAPS at pp. 6-7, MidAmerican at p. 4, INGAA at pp.
6-7, and Williston Basin at 6.
\43\ APPA and TAPS at pp. 6-7.
\44\ MidAmerican at p. 4.
\45\ INGAA at pp. 6-7 and Williston Basin at p. 6.
\46\ Id.
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Commission Determination
22. The Commission clarifies that Exhibit G-II may contain CEII.
Further, if an applicant believes that information in Exhibit G-II
meets the definition of CEII, then the relevant part of the exhibit
should be filed as CEII. Therefore, the Commission adopts the
guidelines proposed in the NOPR with the addition of the Exhibit G-II
as a document that may contain CEII.\47\
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\47\ NOPR at P 10-15.
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H. Elimination of the Non-Internet Public Category
23. Two commenters support the Commission proposal to eliminate the
NIP category of documents.\48\ Dominion states that abolishing NIP
category will be more efficient and will make the information more
accessible to interested parties. AGA asserts that the Commission's
proposal to eliminate NIP ``appears to reflect the reality of the
public's continued access to energy infrastructure data from sources
beyond the Commission's control.'' \49\
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\48\ Dominion at p. 5 and AGA at p. 3.
\49\ AGA at p. 3.
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24. Several commenters oppose the elimination of the NIP
designation claiming that elimination will make it
[[Page 63983]]
easier for individuals with malicious intent to obtain locational
information.\50\ Further, these commenters contend that the fact that
such information is publicly available from other sources is not a
valid reason to abolish the NIP designation. Rather, they contend that
the Commission should set an example by retaining the NIP category to
encourage other sources to be more cautious in their treatment of
sensitive information. Before abolishing the NIP designation, NHA
suggests that the Commission ``make a last attempt to resolve the
confusion through the issuance of additional guidance or outreach[.]''
\51\
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\50\ EEI at pp. 9-10, Williston Basin at pp. 4-5, and INGAA at
pp. 4-6.
\51\ NHA at p. 2.
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Commission Determination
25. The Commission does not agree that NIP should be retained. Much
of the information now designated as NIP is easily available on-line
from other sources, such as the United States Geological Survey or
commercial mapping firms. As such, retaining the NIP designation does
not enhance security or safety. Further, the information is publicly
available from the Commission's Public Reference Room. Withholding this
information from the Commission's Web site may be perceived as a
hindrance to individuals seeking to access public information.
26. Regarding the approximately 5,400 NIP documents currently in
the Commission's e-library records, the NOPR proposed that these
documents simply retain the NIP designation in e-library.\52\ The
Commission has determined that this will create confusion. Therefore,
the Commission will provide a sixty-day time period from the date this
order is issued in which previous submitters of NIP may specifically
identify any documents they believe may now qualify for CEII
protection. After the sixty-day period, all NIP documents not
identified as CEII will be made publicly available.
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\52\ A list of these documents may be obtained by performing an
advanced search on e-library, selecting only ``Non-Internet Public''
in the ``Availability'' section.
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27. Submitters of NIP who believe that the documents contain CEII
should file requests with the Secretary in this docket (RM06-23-000)
within sixty-days requesting that the designations be changed. Such
requests should identify the specific documents by accession numbers
and provide an accurate description of the documents.
I. State and Local Agencies' Comments
28. Several state agencies, organizations of states, and a county
government requested that state agencies and those similarly situated
be allowed to obtain CEII outside the normal process because they are
entrusted with the public safety of their citizens.\53\ EEI contends
that such agencies should not be allowed special access to CEII.\54\
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\53\ California State Agencies at pp. 8-10, County of Butte at
pp. 2-3, WIEB and CREPC at pp. 7-8, NARUC at p. 12, and California
Resources Agency at pp. 1-2.
\54\ EEI Reply Comments at p. 6.
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Commission Determination
29. The Commission will not allow state agencies and local
governments special access to CEII on a generic basis because such
entities (unlike other federal agencies) may not be required to
maintain the documents in the way the Commission maintains them.
Moreover, state FOIA laws vary, and generic access to CEII for state
agencies and local governments may not sufficiently protect CEII from
release pursuant to state law. Nonetheless, the Commission will utilize
a case-by-case approach that may permit states and other governmental
entities to enter into memoranda of understanding with the Commission
to simplify access to CEII while ensuring appropriate protection of
CEII.
J. A Requestor Shall Submit a Date and Place of Birth Upon Request;
Social Security Numbers Are Not Needed
30. Currently, section 388.113(d) requires that a requester provide
his or her date and place of birth in each request for CEII. Experience
in processing requests for CEII since issuance of Order No. 630 has
shown that the legitimacy of a particular requester can usually be
determined from information other than the requester's date and place
of birth. However, occasionally, a date and place of birth are needed
to assess the legitimacy of a requester. Therefore, we are revising
section 388.113(d) to obtain that information on a case-by-case basis
rather than obtain it in every instance. When needed, the CEII
Coordinator will ask the requester to provide his or her date and place
of birth to process the request for CEII.
31. In a similar vein, the Commission will revise section
388.113(d) to eliminate the request for voluntary submission of social
security numbers. Again, experience has shown that social security
numbers are not needed to determine the legitimacy of requesters.
32. These revisions will minimize privacy concerns regarding the
Commission's collection and maintenance of personally identifiable
information without compromising security regarding the release of
CEII.
K. Miscellaneous Issues
33. The Department of the Interior states that the NOPR offers a
more efficient process for handling CEII requests. Nonetheless, the
Department of the Interior contends that it needs ready access to such
information.\55\ In Order No. 662, the Commission modified its CEII
regulations to simplify federal agencies' access to CEII.\56\ Pursuant
to section 388.113(d)(2) of the Commission's regulations, ``An employee
of a federal agency acting within the scope of his or her federal
employment may obtain CEII directly from Commission staff without
following the procedures outlined in paragraph (d)(3) of this
section.''
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\55\ Department of the Interior at p. 2.
\56\ See Critical Energy Infrastructure Information, Order No.
662, 70 FR 37031 (June 28, 2005), FERC Stats. & Regs. ] 31,189
(2005) (Order No. 662).
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34. APPA and TAPS state that the time frame for requesting,
obtaining, and reviewing CEII is insufficient in market-based rate
proceedings that routinely provide a notice period of 21 days.\57\ As
the Commission explained in Order No. 662, it is willing to consider on
a case-by-case basis requests for extensions of time to prepare
protests to market-based rate filings where an intervenor demonstrates
that it needs additional time to obtain and analyze CEII.\58\ The
Commission further encourages the parties in cases in which CEII is
filed to promptly negotiate a protective order in the proceeding.\59\
Moreover, the Commission, in its NOPR regarding market-based rates for
wholesale sales of electric energy, capacity and ancillary services by
public utilities, sought comments on whether CEII designations remain a
concern since issuance of Order No. 662.\60\ In the market-based rate
Final Rule, the Commission adopted procedures, now codified as section
37.35(f) of the Commission's regulations, to ensure that intervenors
have prompt access to relevant information for which privileged
treatment, including CEII, is claimed.\61\
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\57\ APPA and TAPS at pp. 4-5.
\58\ Order No. 662 at P 25.
\59\ Id.
\60\ Market-Based Rates for Wholesale Sales of Electric Energy,
Capacity and Ancillary Services by Public Utilities, 71 FR 33102,
FERC Stats. & Regs. ] 32,602 (2006) (MBR NOPR).
\61\ See also Market-Based Rates for Wholesale Sales of Electric
Energy, Capacity and Ancillary Services by Public Utilities, Order
No. 697, 119 FERC ] 61,295 (June 21, 2007) (market-based rate Final
Rule).
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[[Page 63984]]
35. In the NOPR, the Commission stated that it ``retains its
concern for CEII 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.''
\62\ While some commenters welcome the Commission's reminder regarding
filing abuses,\63\ several commenters express concern.\64\ Dominion
requests that the Commission clarify that errors in classification
based upon a reasonable, good faith interpretation of the Commission's
regulations will not result in a rejection of a filing.\65\ Dominion
and NHA both recommend that the Commission reject a license application
only as a measure of last resort and only for the most egregious of
cases.\66\ NHA further recommends continued outreach to the industry to
reduce designation errors.\67\ EEI urges the Commission to notify the
submitter of the information if the Commission believes that he or she
has improperly labeled information as CEII or if the submitter has
failed to provide a justification for treating the information as
CEII.\68\
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\62\ NOPR at P 16.
\63\ APPA and TAPS at p. 6 and AGA at p. 3.
\64\ NHA at pp. 1-2, Dominion at pp. 10-12, and EEI at pp. 8-9.
\65\ Dominion at p. 11.
\66\ Dominion at p. 12 and NHA at p. 2.
\67\ Id.
\68\ EEI at p. 9.
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36. The Commission has continuously sought to dissuade applicants
from carelessly using the CEII designation because such misuse prevents
interested parties and other members of the public with a legitimate
need from accessing information in a timely manner. The Commission
stated as a reminder in the NOPR that applications may be rejected for
failing to comply with the Commission's regulations at 18 CFR
388.112(b)(1).\69\ As the Commission explained in the Order No. 683-A,
``[i]n instances in which documents are rejected for filing, the
rejection is usually without prejudice and no substantive rights are
lost. The application must merely be refiled in accordance with the
procedural requirements.'' \70\
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\69\ NOPR at P 16-17.
\70\ Order No. 683-A, P 12.
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37. The Commission agrees that continued outreach will help to
diminish designation errors. To this end, the Secretary of the
Commission will continue to post filing guidance on the Commission's
Web site.
38. The Commission will also revise section 388.112(d) to reflect
an internal procedural change. Section 388.112(d) currently provides
that, when a FOIA or CEII request is received for information that was
submitted to the Commission with a claim of privilege or CEII status,
or when the Commission is considering release of such information, the
Commission official who will determine whether to release the
information will notify the submitter and provide an opportunity to
comment. But in many instances, it is practical for an individual other
than the official responsible for determining whether to release the
information to provide such notice. Therefore, the Commission has
decided to revise section 388.112(d) of its regulations to provide that
any appropriate official may provide notice to the submitter.
Information Collection Statement
39. The Office of Management and Budget's (OMB's) regulations
require that OMB approve certain information collection requirements
imposed by agency rule.\71 \This final rule does not impose any
additional information collection requirements. Therefore, the
information collection regulations do not apply to this final rule.
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\71\ 5 CFR 1320.12.
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Environmental Analysis
40. 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.\72\ 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.\73\ This rule is procedural in
nature and therefore falls under this exception; consequently, no
environmental consideration is necessary.
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\72\ 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).
\73\ 18 CFR 380.4(a)(2)(ii).
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Regulatory Flexibility Act Certification
41. The Regulatory Flexibility Act of 1980 \74\ 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 Commission certifies that this rule would not
have such an impact on small entities.
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\74\ 5 U.S.C. 601-612.
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Document Availability
42. 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.
43. 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.
44. 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
45. These regulations are effective December 14, 2007.
46. 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.
Kimberly D. Bose,
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.
[[Page 63985]]
0
2. Section 388.109 is amended by revising paragraph (b) to read as
follows:
Sec. 388.109 Fees for record requests.
* * * * *
(b) Fees for records not available through the Public Reference
Room (FOIA or CEII requests). The cost of duplication of records not
available in the Public Reference Room will depend on the number of
documents requested, the time necessary to locate the documents
requested, and the category of the persons requesting the records. The
procedures for appeal of requests for fee waiver or reduction are set
forth in Sec. 388.110.
* * * * *
0
3. Section 388.112 is amended by removing paragraph (a)(3) and revising
paragraphs (b) and (d) to read as follows:
Sec. 388.112 Requests for special treatment of documents submitted to
the Commission.
* * * * *
(b) Procedures. A person claiming that information warrants special
treatment as CEII or privileged must file:
(1) A written statement requesting CEII or privileged treatment for
some or all of the information in a document, and the justification for
special treatment of the information; and
(2) The following, as applicable:
(i) An original plus the requisite number of copies of the public
volume filed and marked in accordance with instructions issued by the
Secretary;
(ii) An original plus two copies of the CEII volume, if any, filed
and marked in accordance with instructions issued by the Secretary; and
(iii) An original only of the privileged volume, if any, filed and
marked in accordance with instructions issued by the Secretary.
* * * * *
(d) Notification of request and opportunity to comment. When a FOIA
or CEII requester seeks a document for which privilege or CEII status
has been claimed, or when the Commission itself is considering release
of such information, the Commission official who will decide whether to
release the information or any other appropriate Commission official
will notify the person who submitted the document and give the person
an opportunity (at least five calendar days) in which to comment in
writing on the request. A copy of this notice will be sent to the
requester.
* * * * *
0
4. Section 388.113 is amended by redesignating paragraph (d)(3) as
paragraph (d)(4), revising newly designated paragraph (d)(4), and
adding new paragraphs (d)(3) and (e) to read as follows:
Sec. 388.113 Accessing critical energy infrastructure information.
* * * * *
(d) * * *
(3) A landowner whose property is crossed by or in the vicinity of
a project may receive detailed alignment sheets containing CEII
directly from Commission staff without submitting a non-disclosure
agreement as outlined in paragraph (d)(4) of this section. A landowner
must provide Commission staff with proof of his or her property
interest in the vicinity of a project.
(4) If any other requester has a particular need for information
designated as CEII, the requester may request the information using the
following procedures:
(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)), 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 shall provide his or her date and place of birth upon
request, if it is determined by the CEII Coordinator that this
information is necessary to process the request. Unless otherwise
provided in Section 113(d)(3), a requester must also file an executed
non-disclosure agreement.
(ii) A requester who seeks the information on behalf of all
employees of an organization should clearly state that the information
is sought for the organization, that the requester is authorized to
seek the information on behalf of the organization, and that all the
requesters agree to be bound by a non-disclosure agreement that must be
executed by and will be applied to all individuals who have access to
the CEII.
(iii) After 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.
(iv) If the CEII Coordinator determines that the CEII requester has
not demonstrated a valid or legitimate need for the CEII or that access
to the CEII should be denied for other reasons, this determination may
be appealed to the General Counsel pursuant to Sec. 388.110 of this
Chapter. The General Counsel will decide whether the information is
properly classified as CEII, which by definition is exempt from release
under FOIA, and whether the Commission should in its discretion make
such CEII available to the CEII requester in view of the requester's
asserted legitimacy and need.
(v) Once a CEII requester has been verified by Commission staff as
a legitimate requester who does not pose a security risk, his or her
verification will be valid for the remainder of that calendar year.
Such a requester is not required to provide detailed information about
him or herself with subsequent requests during the calendar year. He or
she is also not required to file a non-disclosure agreement with
subsequent requests during the calendar year because the original non-
disclosure agreement will apply to all subsequent releases of CEII.
(vi) If an organization is granted access to CEII as provided by
paragraph (d)(4)(iii) of this section, and later seeks to add
additional individuals to the non-disclosure agreement, the names of
these individuals must be sent to the CEII Coordinator with
certification that notice has been given to the submitter. Any newly
added individuals must execute a supplement to the original non-
disclosure agreement indicating their acceptance of its terms. If there
is no written opposition within five (5) days of notifying the CEII
Coordinator and the submitter concerning the addition of any newly-
named individuals, the CEII Coordinator will issue a standard notice
accepting the addition of names to the non-disclosure agreement. If the
submitter files a timely opposition with the CEII Coordinator, the CEII
Coordinator will issue a formal determination addressing the merits of
such opposition.
(e) Fees for processing CEII requests will be determined in
accordance with 18 CFR 388.109.
Note: The following appendix will not appear in the Code of
Federal Regulations.
APPENDIX A
[[Page 63986]]
List of Commenters
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Abbreviation Name
------------------------------------------------------------------------
Allegheny.................................. Allegheny Power and
Allegheny Energy Supply
Company, L.L.C.
AGA........................................ American Gas Association.
APPA and TAPS.............................. American Public Power
Association and
Transmission Access Policy
Study Group.
Butte County............................... Butte County, California.
California Resources....................... California Resources
Agency.
California State Agencies.................. California Coastal
Commission, California
Energy Commission,
California Electricity
Oversight Board, and
California State Lands
Commission.
Dominion................................... Dominion Transmission Inc.,
Dominion Cove Point, LNG,
LP, and Dominion South
Pipeline Company, LP.
EEI........................................ Edison Electric Institute.
INGAA...................................... Interstate Natural Gas
Association of America.
MidAmerican................................ MidAmerican Energy Company.
NARUC...................................... National Association of
Regulatory Utility
Commissioners.
NHA........................................ National Hydropower
Association.
SCE........................................ Southern California Edison
Company.
Western Energy Board....................... Western Interstate Energy
Board and Committee on
Regional Electric Power
Cooperation.
Williston Basin............................ Williston Basin Interstate
Pipeline Company.
Department of the Interior................. United States Department of
the Interior.
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[FR Doc. E7-22141 Filed 11-13-07; 8:45 am]
BILLING CODE 6717-01-P