Critical Energy Infrastructure Information, 37031-37036 [05-12627]

Download as PDF Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Rules and Regulations DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 284 [RM96–1–026] Standards for Business Practices of Interstate Natural Gas Pipelines Federal Energy Regulatory Commission. ACTION: Final rule; correction. AGENCY: Dated: June 22, 2005. Magalie R. Salas, Secretary. [FR Doc. 05–12715 Filed 6–27–05; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 388 [Docket Nos. RM02–4–003, PL02–1–003; Order No. 662] Critical Energy Infrastructure Information Issued June 21, 2005. Federal Energy Regulatory Commission. ACTION: Final rule. AGENCY: SUMMARY: The Federal Energy Regulatory Commission (Commission) is issuing this final rule amending its regulations for gaining access to critical energy infrastructure information (CEII). 15:51 Jun 27, 2005 Jkt 205001 Effective Date: The rule will become effective June 28, 2005. FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the General Counsel, GC–13, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. 202–502–8521. SUPPLEMENTARY INFORMATION: DATES: SUMMARY: The Federal Energy Regulatory Commission published in the Federal Register of May 17, 2005, a document concerning regulations governing standards for conducting business practices with interstate natural gas pipelines. This final rule was incorrectly designated ‘‘Order No. 654’’. This correction document changes that to read ‘‘Order No. 587–S’’. DATES: Effective on June 28, 2005. FOR FURTHER INFORMATION CONTACT: Jamie Chabinsky, 202–502–6040. SUPPLEMENTARY INFORMATION: The Federal Energy Regulatory Commission published a document in the Federal Register of May 17, 2005 (70 FR 28204). This correction changes the order number of the final rule. In rule FR Doc. 05–9803 published on May 17, 2005 (70 FR 28204), make the following correction. On page 28205, in the first column, change ‘‘Order No. 654’’ to ‘‘Order No. 587–S’’. VerDate jul<14>2003 These changes are being made based on comments filed in response to the March 3, 2005, notice seeking public comment on the effectiveness of the Commission’s CEII rules. The final rule removes federal agency requesters from the scope of the rule, modifies the application of non-Internet public (NIP) treatment, and clarifies obligations of requesters. It also discusses changes that will be made to non-disclosure agreements. Before Commissioners: Pat Wood, III, Chairman; Nora Mead Brownell, Joseph T. Kelliher, and Suedeen G. Kelly. Final Rule 1. On March 3, 2005, the Commission issued a ‘‘Notice Soliciting Public Comment’’ (the notice) on its procedures for dealing with critical energy infrastructure information (CEII). 70 FR 12867 (Mar. 16, 2005). The Commission’s CEII procedures were established by Order Nos. 630 and 630– A. See Critical Energy Infrastructure Information, Order No. 630, 68 FR 9857 (Mar. 3, 2003), FERC Stats. & Regs. ¶ 31,140 (2003); order on reh’g, Order No. 630–A, 68 FR 46456 (Aug. 6, 2003), FERC Stats. & Regs. ¶ 31,147 (2003). After soliciting public comment on the effectiveness of the rules in February 2004, the Commission amended 18 CFR 388.113 and clarified some other issues regarding CEII in Order No. 649.1 After receiving comments in response to its most recent notice, the Commission further amends and clarifies 18 CFR 388.113 and its CEII process. Background 2. Shortly after the attacks on September 11, 2001, the Commission began its efforts with respect to CEII. See Statement of Policy on Treatment of Previously Public Documents, 66 FR 52917 (Oct. 18, 2001), 97 FERC ¶ 61,130 (2001). As a preliminary step, the Commission removed documents such as oversized maps that were likely to contain detailed specifications of facilities from its public files and Internet page, and directed the public to use the Freedom of Information Act (FOIA) request process in order to Energy Infrastructure Information, Order No. 649, 69 FR 48386 (Aug. 10, 2004). PO 00000 1 Critical Frm 00023 Fmt 4700 Sfmt 4700 37031 request such information.2 After receiving responses to a notice of inquiry (NOI) it issued on January 16, 2002, 67 FR 3129 (Jan. 23, 2002), FERC Stats. & Regs. ¶ 35,542 (2002), the Commission issued a notice of proposed rulemaking (NOPR) regarding CEII, which proposed expanding the definition of CEII to include detailed information about proposed facilities as well as those already licensed or certificated by the Commission. Notice of Rulemaking and Revised Statement of Policy, 67 FR 57994 (Sept. 13, 2002); FERC Stats. & Regs. ¶ 32,564 (2002). The Commission issued Order No. 630 on February 21, 2003, defining CEII to include information about proposed facilities, and to exclude information that simply identified the location of the infrastructure. Order No. 630, 68 FR 9857, FERC Stats. & Regs. ¶ 31,140. After receiving a request for rehearing on Order No. 630, the Commission issued Order No. 630–A on July 23, 2003, denying the request for rehearing, but amending the rule in several respects. Order No. 630–A, 68 FR 46456, FERC Stats. & Regs. ¶ 31,147. Specifically, the order on rehearing made several minor procedural changes and clarifications, added a reference in the regulation regarding the filing of non-Internet public (NIP) information, a term first described in Order No. 630, and added the aforementioned commitment to review the effectiveness of the new process after six months. The February 13, 2004, notice facilitated the review contemplated in Order No. 630– A. This order continues the Commission’s ongoing commitment to evaluate the effectiveness of the CEII regulations by addressing the comments received in response to its March 3, 2005, notice. Summary and Discussion of Comments Received A. Introduction 3. In its March 3, 2005, notice, the Commission specifically invited 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 the USGS maps? (iv) Are there classes of information that are not appropriate for 2 The FOIA process is specified in 5 U.S.C. 552 and the Commission’s regulations at 18 CFR 388.108. E:\FR\FM\28JNR1.SGM 28JNR1 37032 Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Rules and Regulations release even when a legitimate requester agrees to the terms of an appropriate non-disclosure agreement? The Commission received seventeen responses to its notice.3 While some of the comments address the specific questions raised by the Commission, the majority of the comments relate more to the Commission’s processing of requests for CEII. Commenters raise issues regarding verification of requesters, use of non-disclosure agreements and how to ensure compliance with such agreements. In addition, several commenters raise concerns about CEII claims in the context of market-based rate (MBR) filings, and how the typical CEII response times makes it difficult to participate in such proceedings. At least one commenter raises issues regarding owner operator requests for information about their own facilities. Finally, as part of its review of the CEII process, the Commission is revisiting its rules as regards to federal agency requests. These issues are discussed below. B. Misuse of CEII Designation 4. The March 3, 2005, notice specifically asked whether the CEII designation was being misused by filers to claim protection for information that does not meet the definition of CEII. The majority of commenters addressing this issue say they are not aware of a problem with misuse of the CEII designation.4 With one exception discussed below, over-designation does not appear to be an issue. 5. The one area the commenters identify as a potential problem is MBR filings. Both the Transmission Access Policy Study Group (TAPS) and the American Public Power Administration (APPA) raise the issue of whether CEII protection is warranted for these filings. APPA claims that there is ‘‘widespread designation of simultaneous import capability studies as CEII, with such designations appearing to apply to data and information that does not appear to be CEII.’’ 5 Similarly, TAPS evidences concern that ‘‘CEII claims are overbroad, especially in the MBR context where entire simultaneous transmission studies and underlying workpapers are designated as CEII.’’ 6 TAPS questions 3 See Appendix A. e.g., Duke Energy Corporation (Duke) at p. 3, El Paso Corporation’s Pipeline Group (El Paso) at p. 3, International Transmission Company (ITC) at p. 2, Interstate Natural Gas Association of America (INGAA) at p. 1, MidAmerican Energy Company (Mid American) at p. 2, National Hydropower Association (NHA) at p. 1, Pacific Gas & Electric Company (PG&E) at p. 1, and Williston Basin Interstate Pipeline Company (Williston Basin) at p. 3. 5 APPA at p. 2. 6 TAPS at p. 4. 4 See VerDate jul<14>2003 15:51 Jun 27, 2005 Jkt 205001 whether all such information qualifies as CEII. Both APPA and TAPS suggest that the Commission commit to perform random audits of CEII filings.7 TAPS also encourages the Commission to stress that requesters must make every effort to segregate public information from CEII, and only withhold the CEII from ready public access. TAPS further states that submitters should provide thorough descriptions of the material designated as CEII, and the justification for such label.8 6. We appreciate commenters’ concerns that CEII claims in the MBR context may be overbroad, particularly where entire simultaneous transmission studies and underlying work papers are designated as CEII. In an effort to achieve proper designation of material as CEII while avoiding misuse of the CEII designation, we encourage requesters to make every effort to segregate public information from CEII and to only withhold the CEII from ready public access. To this end, we emphasize that 18 CFR 388.112(b)(1) requires submitters to 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. The Commission may audit random CEII MBR filings in the future to verify that the CEII label is not being misused. C. Re-Evaluation of the Non-Internet Public Designation 7. The Commission’s most recent Notice requested comment regarding the need for the non-Internet public (NIP) designation, whether the current NIP definition is too broad and should exclude certain location maps. Only about half of the commenters specifically address the NIP issue. Duke claims that the NIP designation is not necessary given that much of the NIP information is already accessible to the public through other means, and information that contains sufficient detail could be treated as CEII. Similarly, Edison Electric Institute (EEI) and ITC state that information that raises security concerns should be treated as CEII, not NIP; however, EEI is in favor of use of the NIP category as a fallback.9 Williston Basin favors keeping the NIP category, stating ‘‘[a]bsent a reversal of the Commission’s determination that location information does not qualify as CEII, [it] believes the need for the [NIP] designation is PO 00000 7 APPA at p. 3, TAPS at p. 4. at pp. 4–5. 9 EEI at p. 4, ITC at p. 2. 8 TAPS Frm 00024 Fmt 4700 Sfmt 4700 unequivocal.’’ Williston Basin at p. 3. INGAA, NHA, and PG&E also appear to favor retaining the NIP category.10 8. After analyzing the advantages and disadvantages of the NIP category, we have decided to retain a NIP category, modified to exclude certain general information. To date, the NIP label has been applied to ‘‘location maps and diagrams that do not rise to the level of CEII.’’ The following documents previously have been identified as NIP: ‘‘(1) USGS 7.5 minute topographic maps showing the location of pipelines, dams, or other aboveground facilities, (2) alignment sheets showing the location of pipeline and aboveground facilities, right of way dimensions, and extra work areas; (3) drawings showing site or project boundaries, footprints, building locations and reservoir extent; and (4) general location maps.’’ 11 Anyone wishing to obtain NIP may get it upon request from the Public Reference Room or from Commission staff; however it is not made available to the public through the Commission’s Internet site. 9. The Commission has decided to modify the definition of NIP to exclude general, stylized non-system location maps, and to henceforth, make such maps available through the Commission’s Internet site. ‘‘Stylized non-system location maps’’ are those showing generalized project facility locations and little more information than the state in which the facilities are located. Topographic maps, alignment sheets, and drawings with project specifics will continue to be treated as NIP, as will maps that show the location of the national, regional, or specific pipeline systems. D. Protection of Information That Is Publicly Available Elsewhere 10. Eight entities responded to the question of whether it made sense for the Commission to protect (either by NIP or CEII designation) information that is publicly available elsewhere. Duke and El Paso say there is no need for the Commission to attempt to protect information that was available to the public from another source.12 However, most of the others support some sort of protection for sensitive information regardless of whether it may be available elsewhere. For instance, INGAA advocates the Commission make its own determination of whether information should be protected, ‘‘so as not to exacerbate a security problem that 10 See e.g., INGAA at pp. 1–2, NHA at p. 2, and PG&E at p. 1. 11 Critical Energy Infrastructure Information, Order No. 630–A, 68 FR 46456, n.9 (Aug. 6, 2003), FERC Stats. & Regs. ¶ 31,147 (2003). 12 See e.g., Duke at p. 6; and El Paso at p. 3. E:\FR\FM\28JNR1.SGM 28JNR1 Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Rules and Regulations might already exist,’’ explicitly referencing the Commission’s NIP treatment for USGS maps depicting pipeline facilities as appropriate although the maps may be available through other sources.13 ITC, MidAmerican, NHA, PG&E, and Williston Basin likewise support some level of protection for such information, with NHA stating that ‘‘[r]ather than lowering its standards, NHA would urge other agencies that handle CEII and NIP documents to raise the bar and come up to the level of protection rightly provided by FERC.’’ 14 11. In light of the comments received, the Commission will continue to protect information that it believes poses a risk to the security of the infrastructure, even where the information may be publicly available elsewhere, as long as the information fits within the definition of NIP (as revised) or CEII. E. Special Protection for Especially Sensitive Information 12. The final issue posed in the Notice was whether there is information that may not be appropriate for release even where a CEII requester agrees to abide by the terms of an NDA. Nine commenters responded to that question, with the majority stating that especially sensitive information is not always appropriate for release.15 The types of information companies cite as examples include commercially sensitive (or trade secret type) information,16 privileged information (attorney-client, attorney work product, or deliberative process),17 cultural resources information,18 LNG and pipeline project details,19 and security information.20 13. ITC and MidAmerican are the exceptions, with ITC indicating that as long as the requester follows the CEII request process, evidences a legitimate need for the information, and agrees to abide by the NDA, that he or she should be given the information requested. MidAmerican says it ‘‘is not aware of a class of information that in all cases should not be considered for public release upon execution of [an NDA] to 13 INGAA at p. 2. at pp. 2–3, MidAmerican at pp. 3–4, NHA at p. 2, PG&E at p. 1, and Williston Basin at p. 5. 15 See Chandeleur Pipe Line Company and Sabine Pipe Line LLC (Chandeleur & Sabine) at p. 4, Duke at pp. 6–7, El Paso at p. 4, INGAA at p. 2, PG&E at p. 1, Weaver’s Cove Energy LLC and Mill River Pipeline LLC (Weaver’s Cove) at p. 7, and Williston Basin at pp. 5–6. 16 Duke at pp. 6–7, 17 Duke at p. 7. 18 Id. 19 El Paso at pp. 3–4. 20 INGAA at p. 2, PG&E at p. 1, and Weaver’s Cove at p. 7. 14 ITC VerDate jul<14>2003 15:51 Jun 27, 2005 Jkt 205001 a properly screened requestor with a legitimate need for the information.’’ 21 14. The Commission’s existing rule specifies that the decision whether to release CEII involves a balancing of the potential harm from release against the requester’s need for the information. This balancing implicitly recognizes that information may not be suitable for release where the extreme sensitivity of the information outweighs a requester’s legitimate need for that information. The Commission already made such a determination in the case of some particularly sensitive information related to LNG tanker attacks.22 In addition, in several instances the Commission has withheld information because it fell within the Commission’s deliberative process privilege or contained cultural resources information that the Commission did not release prior to its creation of CEII. In light of the comments received, the Commission intends to continue to withhold CEII in the instances where the potential harm from disclosure outweighs the requester’s need for the information F. Requester Verification Issues 15. Many of the commenters encourage the Commission to adopt stricter standards when it comes to verifying the legitimacy and need of requesters. Commenters ask that the Commission follow a standard, articulated process of verifying requesters’ legitimacy and need, and require requesters to provide sufficiently detailed statements of need and intended use of the information for the record.23 16. Form No. 715 data is of particular concern to several requesters, including BPA, FirstEnergy, and PG&E. Bonneville Power Administration (BPA) encourages the Commission to ‘‘require a clear and detailed explanation of why the data from each utility or interconnection is needed, how the data will be used by the requester, and how the requester will prevent its release to any other person.’’ 24 FirstEnergy argues that ‘‘the rationale that consultants provide a valuable service to the public has nothing to do with the Commission’s responsibility to determine what 21 MidAmerican 22 See, at p. 4. e.g., Alfred Lima, 110 FERC ¶ 61,002 (Jan. 5, 2005). 23 FirstEnergy Corporation on behalf of its operating companies Ohio Edison, The Cleveland Electric Illumination Company, Toledo Edison, Pennsylvania Electric Company, Pennsylvania Power Company, Metropolitan Edison Company, Jersey Central Power & Light Company, and American Transmission Systems, Inc. (FirstEnergy) at pp. 3–4. 24 BPA at p. 2. PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 37033 specifically a particular purported consultant is going to do with the CEII or to prevent the unauthorized disclosure of CEII to third parties.’’ 25 17. Form No. 715 presents unique issues because that information is not typically requested in order to participate in a particular Commission proceeding, rather, it is often requested by consultants and academics using the data to create models in order to advise clients and potential clients. The Commission continues to recognize the valuable service provided by these consultants and researchers, and believes that the benefits derived from legitimate consultants and researchers performing such work are substantial. The Commission also realizes that much of their work may be done prior to being engaged by a particular client. Where the work is being done on behalf of a particular client, the regulation requires that the requester identify the client on whose behalf the CEII is being requested. Where the research or product is being developed generally, and there is not yet a client, the requester should provide information by which the Commission can verify his or her legitimacy, such as identifying a past client for whom the consultant has provided similar services or their university affiliation. Such information will help the Commission verify that the requester is providing legitimate services or conducting valuable research. It would be counterproductive to deny requests simply because the consultant or researcher could not identify a particular client on whose behalf the work is being performed. 18. Another issue regarding Form No. 715 request arises when a consultant or other requester doesn’t clearly articulate why he or she needs data for all regions. Requesters are reminded to justify in their requests why they need the information they have requested. Requesters are warned that failure to do so may result in denial of their requests. This is not a change from the current regulation, which requires requests provide ‘‘a detailed statement explaining the particular need for and intended use of the information.’’ 18 CFR 388.113(d)(3)(i). The Commission intends to be more rigorous in analyzing whether a request complies with the regulatory requirement, and will expect to see detailed descriptions regarding 25 FirstEnergy at p. 7. FirstEnergy also claims the Form No. 715 data is confidential commercial information that is provided with the expectation of confidential treatment. The Commission notes that prior to the creation of CEII, Form No. 715 data was publicly available, undercutting FirstEnergy’s argument that it is confidential commercial information. E:\FR\FM\28JNR1.SGM 28JNR1 37034 Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Rules and Regulations the need for the information and the intended use of the information. It will not be sufficient, for instance, to simply say the information is needed to analyze the transmission system. The Commission will look for details such as what type of analysis is being performed, what portions of the system are being analyzed, and who are the potential clients or customers who may benefit from the analysis. 19. PJM Interconnection, L.L.C. (PJM) encourages the Commission to seek assistance from the Department of Homeland Security, the Federal Bureau of Investigation, and other law enforcement agencies regarding ‘‘requester identification and verification procedures as well as making case-by-case decisions about whether to disclose information.’’ 26 The Commission is exploring options available through other federal agencies, in particular the possible use of existing databases maintained by other agencies in order to screen CEII requesters. 20. Commenters also raise issues regarding the Commission’s notice and comment process. More than one commenter notes difficulties in getting notice and comments letters on a timely basis.27 Chandeleur & Sabine requests that the Commission provide notice to the corporate official designated to receive service.28 Duke encourages the Commission to provide notice using electronic means.29 Several commenters are requesting longer notice and comment periods.30 21. The Commission currently is providing submitters with either five business days or seven calendar days in which to comment on requests. Where the Commission has the submitter’s email address or facsimile number, it will use one of those methods to convey the notice and comment letter to the submitter. We believe in most instances this will provide sufficient time to enable submitters to comment on the request. One problem with routinely giving ten days or more for responses to notice and comment letters is that it extends the time for response, which can be critical where the information is requested in order to participate in a Commission proceeding.31 If a submitter requires additional time, it should request more time from the contact 26 PJM at pp. 5–6. BPA at p. 3, Chandeleur & Sabine at p. 2, INGAA at p. 3. 28 Chandeleur & Sabine at p. 3. 29 Duke at p. 8. 30 See e.g., Duke at p. 7, and INGAA at p. 3. 31 See Weaver’s Cove at p. 2, discussing how lengthy CEII processing times can delay a substantive proceeding. See also discussion below regarding market based rate filings. 27 See VerDate jul<14>2003 15:51 Jun 27, 2005 Jkt 205001 person identified in the Commission’s notice and comment letter. 22. For now, the Commission is not planning to change the notice and comment process to notify the person designated to receive service on behalf of a company. There has not been a broad call from submitters to change the person notified; the current method of notifying the person submitting the information at issue generally seems to be working for most companies. Adding additional contacts to the notice and comment mailing lists complicates the notice and comment process, especially with regard to requests (for CEII such as Form Nos. 715 and 567) that involve large numbers of submitters. G. Non-Disclosure Agreement Issues 23. Several companies offer suggestions regarding NDAs, voicing a common concern with respect to compliance with NDAs.32 EEI and PG&E both raise questions regarding how consultants and advisors use CEII to advise clients without revealing the CEII to the clients themselves.33 FirstEnergy states that it is impossible ‘‘to meaningfully assess the risk that the CEII may be improperly disclosed to others (regardless of the execution of an NDA).’’ 34 Several of the commenters suggest that the Commission undertake to audit compliance with the NDAs.35 The Commission agrees that random audits may be useful in the future to ensure compliance with NDAs. Given that to date the NDAs have not included any clause whereby the requester agrees to such audit, the Commission believes that the NDAs should be revised accordingly, and audits should be restricted to those requesters who receive information pursuant to the revised NDAs. In addition, the Commission will add language to NDAs notifying requesters that a violation of the NDA could result in civil or criminal sanctions. This will provide requesters with an additional incentive to comply with the terms of the NDA. H. Market-Based Rate Filings Issues 24. APPA and TAPS evidence particular concern with market based rate [MBR] filings where the filer claims CEII treatment for portions of its filing. As discussed above, one concern is whether filers are over-designating portions of such filings as CEII, particularly where simultaneous transmission studies and underlying 32 See EEI at pp. 3–4, FirstEnergy at pp. 1–5, and 9–10, PG&E at pp. 1–2, and PJM at p. 7. 33 EEI at p. 3, and PG&E at p. 2. 34 FirstEnergy at p. 5. 35 See EEI at pp. 3–4, FirstEnergy at pp. 9–10, and PG&E at p. 2. PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 work papers are designated as CEII. Another concern is whether interveners have sufficient time to respond to market based rate filings for which CEII is claimed. TAPS urges the Commission to ‘‘synchronize the time available to respond to MBR filings with the need to obtain CEII,’’ citing the difficulty in responding within 21 days when it can take 30 days or more to obtain access to CEII.36 TAPS recommends that the Commission adopt a policy ‘‘to respond favorably to intervenor motions for additional time to prepare interventions and protests where it is necessary to obtain and analyze CEII.’’ 37 25. In response to commenters’ concerns that intervenors should have sufficient time to respond to MBR filings for which CEII is claimed, the Commission is willing to consider on a case-by-case basis requests for extensions of time to prepare protests to MBR filings where an intervenor demonstrates that it needs additional time to obtain and analyze CEII. Intervenors should file a request for an extension of time before the deadline for comments runs, explicitly stating that they have filed a CEII request and are waiting for a response. If a CEII request is filed in a case involving a new application for MBR authority, however, the Commission’s ability to grant a request for an extension of time would necessarily be limited by the statutory action date in such a case. In all MBR cases in which CEII is filed, the Commission strongly encourages the parties to either promptly negotiate a protective order in the proceeding governing access to the CEII, or privately negotiate for the submitter to provide the data to interested parties pursuant to an appropriate nondisclosure agreement. Either one of these alternative approaches is more likely to expedite the requester’s receipt of the information. I. Miscellaneous Issues 26. The Commission received several miscellaneous comments regarding its CEII processing. Weaver’s Cove notes an apparent inconsistency in requiring a company like Weaver’s Cove to submit a CEII request in order to obtain a response prepared by someone who made a responsive filing (marked as CEII) after gaining access to the Weaver’s Cove original CEII pleading.38 Weaver’s Cove urges staff to automatically release such information to the original submitter. The problem with this approach is that it is not 36 TAPS at pp. 2–3. at p. 4. 38 Weaver’s Cove at p. 5. 37 TAPS E:\FR\FM\28JNR1.SGM 28JNR1 Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Rules and Regulations guaranteed that the responsive pleading does not contain additional CEII that was not already contained in the original CEII filing. It could be that the responsive pleading is marked as CEII because it contains CEII about a similar project. In that case, it would not be fair to automatically release the CEII. Instead, the Commission encourages entities to negotiate to get the information directly from the submitters. In fact, the Commission prefers that requesters negotiate directly with submitters whenever practical. 27. PJM encourages the Commission to clarify that CEII released to an RTO, NERC or reliability coordinator does not invalidate the information’s protection as CEII.39 As far as the Commission is concerned, such limited releases to entities with a clear need to know such information would not result in loss of CEII protection. J. Federal Agency Requests 28. In the course of reviewing its CEII regulations and processing, the Commission has revisited processing of federal agency requests. As the Commission gets more involved in reliability issues, its need to share information, particularly CEII, with fellow federal agencies increases. In light of this increased need to share CEII, the current system of requiring federal agencies to file formal CEII requests is impractical and unwieldy. For this reason, the Commission has decided to permit federal agencies to request CEII outside of the normal CEII process. As previously noted in Order No. 630–A, federal employees pose less of a security risk because most are screened as part of their federal employment.40 Henceforth, federal agency requesters can request CEII directly from the Commission without filing formal CEII requests under 18 CFR 388.113. Submitters of CEII will not be given notice and an opportunity to comment on federal agency requests. In order to control release of CEII, authority to approve federal agency requests is restricted to Commission officials at or above the level of division director.41 The regulation at 18 CFR 39 PJM at p. 6. No. 630–A, 68 FR 46456 at P 15, FERC Stats. & Regs. ¶ 31,147. The Commission further reduced burdens on federal agency requesters in the CEII final rule it issued on August 3, 2004, which found that once an agency was granted to CEII in a particular docket, it no longer needed to file a formal CEII request to obtain additional CEII in that same docket. Critical Energy Infrastructure Information, Order No. 649, 69 FR 48386 at P 16 (Aug. 10, 2004), 108 FERC ¶ 61,121 (2004). 41 A representative of the requesting agency will, however, still be required to sign an acknowledgment and agreement recognizing the 40 Order VerDate jul<14>2003 15:51 Jun 27, 2005 Jkt 205001 388.113(d) is amended to reflect this change. Information Collection Statement 29. The Office of Management and Budget’s (OMB’s) regulations require that OMB approve certain information collection requirements imposed by agency rule. 5 CFR 1320.12 (2004). This final rule does not impose any additional information collection requirements. Therefore, the information collection regulations do not apply to this final rule. Environmental Analysis 30. 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.42 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusions are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended. 18 CFR 380.4(a)(2)(ii). This rule is procedural in nature and therefore falls under this exception; consequently, no environmental consideration is necessary. Regulatory Flexibility Act Certification 31. The Regulatory Flexibility Act of 1980 (RFA) 43 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 proposed rule, if finalized, would not have such an impact on small entities. Document Availability 32. 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 legal protections afforded to CEII, and agreeing that requests from the public for the information (including requests filed under the Freedom of Information Act, 5 U.S.C. 552) will be referred to the Commission for processing. 42 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). 43 5 U.S.C. 601–612. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 37035 Street, NE., Room 2A, Washington, DC 20426. 33. 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. 34. 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 35. These regulations are effective immediately upon publication in the Federal Register. In accordance with 5 U.S.C. 553(d)(3), the Commission finds that good cause exists to make this final rule effective immediately. The regulatory changes in the rule concern matters of internal operations and will not affect the rights of person appearing before the Commission. There is, therefore, no reason to make it effective at a later time. 36. 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 nonagency parties. 37. The Commission is issuing this as a final rule without a period for public comment. Under 5 U.S.C. 553(b), notice and comment procedures are unnecessary where a rulemaking concerns only agency procedure and practice, or where the agency finds that notice and comment is unnecessary. The regulatory changes concern only matters of agency procedure and will not significantly affect regulated entities or the general public. List of Subjects in 18 CFR Part 388 Confidential business information, Freedom of information. By the Commission. Linda Mitry, Deputy Secretary. In consideration of the foregoing, the Commission amends part 388, Chapter I, Title 18, Code of Federal Regulations, as follows: I E:\FR\FM\28JNR1.SGM 28JNR1 37036 Federal Register / Vol. 70, No. 123 / Tuesday, June 28, 2005 / Rules and Regulations PART 388—INFORMATION AND REQUESTS 1. The authority citation for part 388 continues to read as follows: I Authority: 5 U.S.C. 301–305, 551, 552 (as amended), 553–557; 42 U.S.C. 7101–7352. 2. Amend § 388.113 by revising the heading of paragraph (d), revising paragraph (d)(1), redesignating paragraph (d)(2) as paragraph (d)(3) and revising newly designated paragraph (d)(3)(i), and adding a new paragraph (d)(2) to read as follows: I § 388.113 Accessing critical energy infrastructure information. * * * * * (d) Accessing critical energy infrastructure information. (1) An Owner/operator of a facility, including employees and officers of the owner/operator, may obtain CEII relating to its own facility directly from Commission staff without going through the procedures outlined in paragraph (d)(3) of this section. Non-employee agents of an owner/operator of such facility may obtain CEII relating to the owner/operator’s facility in the same manner as owner/operators as long as they present written authorization from the owner/operator to obtain such information. (2) 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. Any Commission employee at or above the level of division director or its equivalent may rule on federal agency representatives’ requests for access to CEII. (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 requested has used and the dates the requester used such names(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. Requesters are also requested to include their social security number for identification purposes. * * * * * Appendix A List of Commenters [This appendix will not appear in the Code of Federal Regulations.] Abbreviation Name APPA ...................................... BPA ........................................ Chandeleur and Sabine ......... Duke ....................................... EEI ......................................... El Paso ................................... FirstEnergy ............................. American Public Power Association. Bonneville Power Administration. Chandeleur Pipe Line Company and Sabine Pipe Line LLC. Duke Energy Corporation. Edison Electric Institute. El Paso Corporation’s Pipeline Group. FirstEnergy Corporation on behalf of its operating companies Ohio Edison, The Cleveland Electric Illuminating Company, Toledo Edison, Pennsylvania Electric Company, Pennsylvania Power Company, Metropolitan Edison Company, Jersey Central Power & Light Company, and American Transmission Systems, Inc. International Transmission Company. Interstate Natural Gas Association of America. MidAmerican Energy Company. National Hydropower Association. Pacific Gas & Electric Company. PJM Interconnection, L.L.C. Southern California Edison Company. Transmission Access Policy Study Group. Weaver’s Cove Energy LLC & Mill River Pipeline LLC. Williston Basin Interstate Pipeline Company. ITC ......................................... INGAA .................................... MidAmerican .......................... NHA ........................................ PG&E ..................................... PJM ........................................ SCE ........................................ TAPS ...................................... Weaver’s Cove ....................... Williston Basin ........................ [CGD05–05–067] regulations for the OPA Atlantic City Grand Prix, a marine event to be held on the waters of the Atlantic Ocean adjacent to Atlantic City, New Jersey. These special local regulations are necessary to provide for the safety of life on navigable waters during the event. This action is intended to restrict vessel traffic in portions of the Atlantic Ocean adjacent to Atlantic City, New Jersey during the event. RIN 1625–AA08 DATES: [FR Doc. 05–12627 Filed 6–27–05; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 This rule is effective from 9:30 a.m. to 3:30 p.m. on July 17, 2005. Special Local Regulation for Marine Events; Atlantic Ocean, Atlantic City, NJ Coast Guard, DHS. Temporary final rule. AGENCY: ACTION: SUMMARY: The Coast Guard is establishing temporary special local VerDate jul<14>2003 15:51 Jun 27, 2005 Jkt 205001 Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD05–05–067 and are available for inspection or copying at Commander (oax), Fifth Coast Guard District, 431 Crawford Street, Portsmouth, Virginia ADDRESSES: PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 23704–5004, between 9 a.m. and 2 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Dennis Sens, Project Manager, Auxiliary and Recreational Boating Safety Branch, at (757) 398–6204. SUPPLEMENTARY INFORMATION: Regulatory Information We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B) the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM would be impracticable. The event will take place on July 17, 2005. Because of the danger posed by highspeed powerboats racing in a closed circuit, special local regulations are necessary to provide for the safety of event participants, spectator craft and E:\FR\FM\28JNR1.SGM 28JNR1

Agencies

[Federal Register Volume 70, Number 123 (Tuesday, June 28, 2005)]
[Rules and Regulations]
[Pages 37031-37036]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-12627]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 388

[Docket Nos. RM02-4-003, PL02-1-003; Order No. 662]


Critical Energy Infrastructure Information

Issued June 21, 2005.
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). These changes are 
being made based on comments filed in response to the March 3, 2005, 
notice seeking public comment on the effectiveness of the Commission's 
CEII rules. The final rule removes federal agency requesters from the 
scope of the rule, modifies the application of non-Internet public 
(NIP) treatment, and clarifies obligations of requesters. It also 
discusses changes that will be made to non-disclosure agreements.

DATES: Effective Date:
    The rule will become effective June 28, 2005.

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

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Pat Wood, III, Chairman; Nora Mead Brownell, 
Joseph T. Kelliher, and Suedeen G. Kelly.

Final Rule

    1. On March 3, 2005, the Commission issued a ``Notice Soliciting 
Public Comment'' (the notice) on its procedures for dealing with 
critical energy infrastructure information (CEII). 70 FR 12867 (Mar. 
16, 2005). The Commission's CEII procedures were established by Order 
Nos. 630 and 630-A. See Critical Energy Infrastructure Information, 
Order No. 630, 68 FR 9857 (Mar. 3, 2003), FERC Stats. & Regs. ] 31,140 
(2003); order on reh'g, Order No. 630-A, 68 FR 46456 (Aug. 6, 2003), 
FERC Stats. & Regs. ] 31,147 (2003). After soliciting public comment on 
the effectiveness of the rules in February 2004, the Commission amended 
18 CFR 388.113 and clarified some other issues regarding CEII in Order 
No. 649.\1\ After receiving comments in response to its most recent 
notice, the Commission further amends and clarifies 18 CFR 388.113 and 
its CEII process.
---------------------------------------------------------------------------

    \1\ Critical Energy Infrastructure Information, Order No. 649, 
69 FR 48386 (Aug. 10, 2004).
---------------------------------------------------------------------------

Background

    2. Shortly after the attacks on September 11, 2001, the Commission 
began its efforts with respect to CEII. See Statement of Policy on 
Treatment of Previously Public Documents, 66 FR 52917 (Oct. 18, 2001), 
97 FERC ] 61,130 (2001). As a preliminary step, the Commission removed 
documents such as oversized maps that were likely to contain detailed 
specifications of facilities from its public files and Internet page, 
and directed the public to use the Freedom of Information Act (FOIA) 
request process in order to request such information.\2\ After 
receiving responses to a notice of inquiry (NOI) it issued on January 
16, 2002, 67 FR 3129 (Jan. 23, 2002), FERC Stats. & Regs. ] 35,542 
(2002), the Commission issued a notice of proposed rulemaking (NOPR) 
regarding CEII, which proposed expanding the definition of CEII to 
include detailed information about proposed facilities as well as those 
already licensed or certificated by the Commission. Notice of 
Rulemaking and Revised Statement of Policy, 67 FR 57994 (Sept. 13, 
2002); FERC Stats. & Regs. ] 32,564 (2002). The Commission issued Order 
No. 630 on February 21, 2003, defining CEII to include information 
about proposed facilities, and to exclude information that simply 
identified the location of the infrastructure. Order No. 630, 68 FR 
9857, FERC Stats. & Regs. ] 31,140. After receiving a request for 
rehearing on Order No. 630, the Commission issued Order No. 630-A on 
July 23, 2003, denying the request for rehearing, but amending the rule 
in several respects. Order No. 630-A, 68 FR 46456, FERC Stats. & Regs. 
] 31,147. Specifically, the order on rehearing made several minor 
procedural changes and clarifications, added a reference in the 
regulation regarding the filing of non-Internet public (NIP) 
information, a term first described in Order No. 630, and added the 
aforementioned commitment to review the effectiveness of the new 
process after six months. The February 13, 2004, notice facilitated the 
review contemplated in Order No. 630-A. This order continues the 
Commission's ongoing commitment to evaluate the effectiveness of the 
CEII regulations by addressing the comments received in response to its 
March 3, 2005, notice.
---------------------------------------------------------------------------

    \2\ The FOIA process is specified in 5 U.S.C. 552 and the 
Commission's regulations at 18 CFR 388.108.
---------------------------------------------------------------------------

Summary and Discussion of Comments Received

A. Introduction

    3. In its March 3, 2005, notice, the Commission specifically 
invited 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 the USGS maps? (iv) Are 
there classes of information that are not appropriate for

[[Page 37032]]

release even when a legitimate requester agrees to the terms of an 
appropriate non-disclosure agreement? The Commission received seventeen 
responses to its notice.\3\ While some of the comments address the 
specific questions raised by the Commission, the majority of the 
comments relate more to the Commission's processing of requests for 
CEII. Commenters raise issues regarding verification of requesters, use 
of non-disclosure agreements and how to ensure compliance with such 
agreements. In addition, several commenters raise concerns about CEII 
claims in the context of market-based rate (MBR) filings, and how the 
typical CEII response times makes it difficult to participate in such 
proceedings. At least one commenter raises issues regarding owner 
operator requests for information about their own facilities. Finally, 
as part of its review of the CEII process, the Commission is revisiting 
its rules as regards to federal agency requests. These issues are 
discussed below.
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    \3\ See Appendix A.
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B. Misuse of CEII Designation

    4. The March 3, 2005, notice specifically asked whether the CEII 
designation was being misused by filers to claim protection for 
information that does not meet the definition of CEII. The majority of 
commenters addressing this issue say they are not aware of a problem 
with misuse of the CEII designation.\4\ With one exception discussed 
below, over-designation does not appear to be an issue.
---------------------------------------------------------------------------

    \4\ See e.g., Duke Energy Corporation (Duke) at p. 3, El Paso 
Corporation's Pipeline Group (El Paso) at p. 3, International 
Transmission Company (ITC) at p. 2, Interstate Natural Gas 
Association of America (INGAA) at p. 1, MidAmerican Energy Company 
(Mid American) at p. 2, National Hydropower Association (NHA) at p. 
1, Pacific Gas & Electric Company (PG&E) at p. 1, and Williston 
Basin Interstate Pipeline Company (Williston Basin) at p. 3.
---------------------------------------------------------------------------

    5. The one area the commenters identify as a potential problem is 
MBR filings. Both the Transmission Access Policy Study Group (TAPS) and 
the American Public Power Administration (APPA) raise the issue of 
whether CEII protection is warranted for these filings. APPA claims 
that there is ``widespread designation of simultaneous import 
capability studies as CEII, with such designations appearing to apply 
to data and information that does not appear to be CEII.'' \5\ 
Similarly, TAPS evidences concern that ``CEII claims are overbroad, 
especially in the MBR context where entire simultaneous transmission 
studies and underlying workpapers are designated as CEII.'' \6\ TAPS 
questions whether all such information qualifies as CEII. Both APPA and 
TAPS suggest that the Commission commit to perform random audits of 
CEII filings.\7\ TAPS also encourages the Commission to stress that 
requesters must make every effort to segregate public information from 
CEII, and only withhold the CEII from ready public access. TAPS further 
states that submitters should provide thorough descriptions of the 
material designated as CEII, and the justification for such label.\8\
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    \5\ APPA at p. 2.
    \6\ TAPS at p. 4.
    \7\ APPA at p. 3, TAPS at p. 4.
    \8\ TAPS at pp. 4-5.
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    6. We appreciate commenters' concerns that CEII claims in the MBR 
context may be overbroad, particularly where entire simultaneous 
transmission studies and underlying work papers are designated as CEII. 
In an effort to achieve proper designation of material as CEII while 
avoiding misuse of the CEII designation, we encourage requesters to 
make every effort to segregate public information from CEII and to only 
withhold the CEII from ready public access. To this end, we emphasize 
that 18 CFR 388.112(b)(1) requires submitters to 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. 
The Commission may audit random CEII MBR filings in the future to 
verify that the CEII label is not being misused.

C. Re-Evaluation of the Non-Internet Public Designation

    7. The Commission's most recent Notice requested comment regarding 
the need for the non-Internet public (NIP) designation, whether the 
current NIP definition is too broad and should exclude certain location 
maps. Only about half of the commenters specifically address the NIP 
issue. Duke claims that the NIP designation is not necessary given that 
much of the NIP information is already accessible to the public through 
other means, and information that contains sufficient detail could be 
treated as CEII. Similarly, Edison Electric Institute (EEI) and ITC 
state that information that raises security concerns should be treated 
as CEII, not NIP; however, EEI is in favor of use of the NIP category 
as a fallback.\9\ Williston Basin favors keeping the NIP category, 
stating ``[a]bsent a reversal of the Commission's determination that 
location information does not qualify as CEII, [it] believes the need 
for the [NIP] designation is unequivocal.'' Williston Basin at p. 3. 
INGAA, NHA, and PG&E also appear to favor retaining the NIP 
category.\10\
---------------------------------------------------------------------------

    \9\ EEI at p. 4, ITC at p. 2.
    \10\ See e.g., INGAA at pp. 1-2, NHA at p. 2, and PG&E at p. 1.
---------------------------------------------------------------------------

    8. After analyzing the advantages and disadvantages of the NIP 
category, we have decided to retain a NIP category, modified to exclude 
certain general information. To date, the NIP label has been applied to 
``location maps and diagrams that do not rise to the level of CEII.'' 
The following documents previously have been identified as NIP: ``(1) 
USGS 7.5 minute topographic maps showing the location of pipelines, 
dams, or other aboveground facilities, (2) alignment sheets showing the 
location of pipeline and aboveground facilities, right of way 
dimensions, and extra work areas; (3) drawings showing site or project 
boundaries, footprints, building locations and reservoir extent; and 
(4) general location maps.'' \11\ Anyone wishing to obtain NIP may get 
it upon request from the Public Reference Room or from Commission 
staff; however it is not made available to the public through the 
Commission's Internet site.
---------------------------------------------------------------------------

    \11\ Critical Energy Infrastructure Information, Order No. 630-
A, 68 FR 46456, n.9 (Aug. 6, 2003), FERC Stats. & Regs. ] 31,147 
(2003).
---------------------------------------------------------------------------

    9. The Commission has decided to modify the definition of NIP to 
exclude general, stylized non-system location maps, and to henceforth, 
make such maps available through the Commission's Internet site. 
``Stylized non-system location maps'' are those showing generalized 
project facility locations and little more information than the state 
in which the facilities are located. Topographic maps, alignment 
sheets, and drawings with project specifics will continue to be treated 
as NIP, as will maps that show the location of the national, regional, 
or specific pipeline systems.

D. Protection of Information That Is Publicly Available Elsewhere

    10. Eight entities responded to the question of whether it made 
sense for the Commission to protect (either by NIP or CEII designation) 
information that is publicly available elsewhere. Duke and El Paso say 
there is no need for the Commission to attempt to protect information 
that was available to the public from another source.\12\ However, most 
of the others support some sort of protection for sensitive information 
regardless of whether it may be available elsewhere. For instance, 
INGAA advocates the Commission make its own determination of whether 
information should be protected, ``so as not to exacerbate a security 
problem that

[[Page 37033]]

might already exist,'' explicitly referencing the Commission's NIP 
treatment for USGS maps depicting pipeline facilities as appropriate 
although the maps may be available through other sources.\13\ ITC, 
MidAmerican, NHA, PG&E, and Williston Basin likewise support some level 
of protection for such information, with NHA stating that ``[r]ather 
than lowering its standards, NHA would urge other agencies that handle 
CEII and NIP documents to raise the bar and come up to the level of 
protection rightly provided by FERC.'' \14\
---------------------------------------------------------------------------

    \12\ See e.g., Duke at p. 6; and El Paso at p. 3.
    \13\ INGAA at p. 2.
    \14\ ITC at pp. 2-3, MidAmerican at pp. 3-4, NHA at p. 2, PG&E 
at p. 1, and Williston Basin at p. 5.
---------------------------------------------------------------------------

    11. In light of the comments received, the Commission will continue 
to protect information that it believes poses a risk to the security of 
the infrastructure, even where the information may be publicly 
available elsewhere, as long as the information fits within the 
definition of NIP (as revised) or CEII.

E. Special Protection for Especially Sensitive Information

    12. The final issue posed in the Notice was whether there is 
information that may not be appropriate for release even where a CEII 
requester agrees to abide by the terms of an NDA. Nine commenters 
responded to that question, with the majority stating that especially 
sensitive information is not always appropriate for release.\15\ The 
types of information companies cite as examples include commercially 
sensitive (or trade secret type) information,\16\ privileged 
information (attorney-client, attorney work product, or deliberative 
process),\17\ cultural resources information,\18\ LNG and pipeline 
project details,\19\ and security information.\20\
---------------------------------------------------------------------------

    \15\ See Chandeleur Pipe Line Company and Sabine Pipe Line LLC 
(Chandeleur & Sabine) at p. 4, Duke at pp. 6-7, El Paso at p. 4, 
INGAA at p. 2, PG&E at p. 1, Weaver's Cove Energy LLC and Mill River 
Pipeline LLC (Weaver's Cove) at p. 7, and Williston Basin at pp. 5-
6.
    \16\ Duke at pp. 6-7,
    \17\ Duke at p. 7.
    \18\ Id.
    \19\ El Paso at pp. 3-4.
    \20\ INGAA at p. 2, PG&E at p. 1, and Weaver's Cove at p. 7.
---------------------------------------------------------------------------

    13. ITC and MidAmerican are the exceptions, with ITC indicating 
that as long as the requester follows the CEII request process, 
evidences a legitimate need for the information, and agrees to abide by 
the NDA, that he or she should be given the information requested. 
MidAmerican says it ``is not aware of a class of information that in 
all cases should not be considered for public release upon execution of 
[an NDA] to a properly screened requestor with a legitimate need for 
the information.'' \21\
---------------------------------------------------------------------------

    \21\ MidAmerican at p. 4.
---------------------------------------------------------------------------

    14. The Commission's existing rule specifies that the decision 
whether to release CEII involves a balancing of the potential harm from 
release against the requester's need for the information. This 
balancing implicitly recognizes that information may not be suitable 
for release where the extreme sensitivity of the information outweighs 
a requester's legitimate need for that information. The Commission 
already made such a determination in the case of some particularly 
sensitive information related to LNG tanker attacks.\22\ In addition, 
in several instances the Commission has withheld information because it 
fell within the Commission's deliberative process privilege or 
contained cultural resources information that the Commission did not 
release prior to its creation of CEII. In light of the comments 
received, the Commission intends to continue to withhold CEII in the 
instances where the potential harm from disclosure outweighs the 
requester's need for the information
---------------------------------------------------------------------------

    \22\ See, e.g., Alfred Lima, 110 FERC ] 61,002 (Jan. 5, 2005).
---------------------------------------------------------------------------

F. Requester Verification Issues

    15. Many of the commenters encourage the Commission to adopt 
stricter standards when it comes to verifying the legitimacy and need 
of requesters. Commenters ask that the Commission follow a standard, 
articulated process of verifying requesters' legitimacy and need, and 
require requesters to provide sufficiently detailed statements of need 
and intended use of the information for the record.\23\
---------------------------------------------------------------------------

    \23\ FirstEnergy Corporation on behalf of its operating 
companies Ohio Edison, The Cleveland Electric Illumination Company, 
Toledo Edison, Pennsylvania Electric Company, Pennsylvania Power 
Company, Metropolitan Edison Company, Jersey Central Power & Light 
Company, and American Transmission Systems, Inc. (FirstEnergy) at 
pp. 3-4.
---------------------------------------------------------------------------

    16. Form No. 715 data is of particular concern to several 
requesters, including BPA, FirstEnergy, and PG&E. Bonneville Power 
Administration (BPA) encourages the Commission to ``require a clear and 
detailed explanation of why the data from each utility or 
interconnection is needed, how the data will be used by the requester, 
and how the requester will prevent its release to any other person.'' 
\24\ FirstEnergy argues that ``the rationale that consultants provide a 
valuable service to the public has nothing to do with the Commission's 
responsibility to determine what specifically a particular purported 
consultant is going to do with the CEII or to prevent the unauthorized 
disclosure of CEII to third parties.'' \25\
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    \24\ BPA at p. 2.
    \25\ FirstEnergy at p. 7. FirstEnergy also claims the Form No. 
715 data is confidential commercial information that is provided 
with the expectation of confidential treatment. The Commission notes 
that prior to the creation of CEII, Form No. 715 data was publicly 
available, undercutting FirstEnergy's argument that it is 
confidential commercial information.
---------------------------------------------------------------------------

    17. Form No. 715 presents unique issues because that information is 
not typically requested in order to participate in a particular 
Commission proceeding, rather, it is often requested by consultants and 
academics using the data to create models in order to advise clients 
and potential clients. The Commission continues to recognize the 
valuable service provided by these consultants and researchers, and 
believes that the benefits derived from legitimate consultants and 
researchers performing such work are substantial. The Commission also 
realizes that much of their work may be done prior to being engaged by 
a particular client. Where the work is being done on behalf of a 
particular client, the regulation requires that the requester identify 
the client on whose behalf the CEII is being requested. Where the 
research or product is being developed generally, and there is not yet 
a client, the requester should provide information by which the 
Commission can verify his or her legitimacy, such as identifying a past 
client for whom the consultant has provided similar services or their 
university affiliation. Such information will help the Commission 
verify that the requester is providing legitimate services or 
conducting valuable research. It would be counterproductive to deny 
requests simply because the consultant or researcher could not identify 
a particular client on whose behalf the work is being performed.
    18. Another issue regarding Form No. 715 request arises when a 
consultant or other requester doesn't clearly articulate why he or she 
needs data for all regions. Requesters are reminded to justify in their 
requests why they need the information they have requested. Requesters 
are warned that failure to do so may result in denial of their 
requests. This is not a change from the current regulation, which 
requires requests provide ``a detailed statement explaining the 
particular need for and intended use of the information.'' 18 CFR 
388.113(d)(3)(i). The Commission intends to be more rigorous in 
analyzing whether a request complies with the regulatory requirement, 
and will expect to see detailed descriptions regarding

[[Page 37034]]

the need for the information and the intended use of the information. 
It will not be sufficient, for instance, to simply say the information 
is needed to analyze the transmission system. The Commission will look 
for details such as what type of analysis is being performed, what 
portions of the system are being analyzed, and who are the potential 
clients or customers who may benefit from the analysis.
    19. PJM Interconnection, L.L.C. (PJM) encourages the Commission to 
seek assistance from the Department of Homeland Security, the Federal 
Bureau of Investigation, and other law enforcement agencies regarding 
``requester identification and verification procedures as well as 
making case-by-case decisions about whether to disclose information.'' 
\26\ The Commission is exploring options available through other 
federal agencies, in particular the possible use of existing databases 
maintained by other agencies in order to screen CEII requesters.
---------------------------------------------------------------------------

    \26\ PJM at pp. 5-6.
---------------------------------------------------------------------------

    20. Commenters also raise issues regarding the Commission's notice 
and comment process. More than one commenter notes difficulties in 
getting notice and comments letters on a timely basis.\27\ Chandeleur & 
Sabine requests that the Commission provide notice to the corporate 
official designated to receive service.\28\ Duke encourages the 
Commission to provide notice using electronic means.\29\ Several 
commenters are requesting longer notice and comment periods.\30\
---------------------------------------------------------------------------

    \27\ See BPA at p. 3, Chandeleur & Sabine at p. 2, INGAA at p. 
3.
    \28\ Chandeleur & Sabine at p. 3.
    \29\ Duke at p. 8.
    \30\ See e.g., Duke at p. 7, and INGAA at p. 3.
---------------------------------------------------------------------------

    21. The Commission currently is providing submitters with either 
five business days or seven calendar days in which to comment on 
requests. Where the Commission has the submitter's e-mail address or 
facsimile number, it will use one of those methods to convey the notice 
and comment letter to the submitter. We believe in most instances this 
will provide sufficient time to enable submitters to comment on the 
request. One problem with routinely giving ten days or more for 
responses to notice and comment letters is that it extends the time for 
response, which can be critical where the information is requested in 
order to participate in a Commission proceeding.\31\ If a submitter 
requires additional time, it should request more time from the contact 
person identified in the Commission's notice and comment letter.
---------------------------------------------------------------------------

    \31\ See Weaver's Cove at p. 2, discussing how lengthy CEII 
processing times can delay a substantive proceeding. See also 
discussion below regarding market based rate filings.
---------------------------------------------------------------------------

    22. For now, the Commission is not planning to change the notice 
and comment process to notify the person designated to receive service 
on behalf of a company. There has not been a broad call from submitters 
to change the person notified; the current method of notifying the 
person submitting the information at issue generally seems to be 
working for most companies. Adding additional contacts to the notice 
and comment mailing lists complicates the notice and comment process, 
especially with regard to requests (for CEII such as Form Nos. 715 and 
567) that involve large numbers of submitters.

G. Non-Disclosure Agreement Issues

    23. Several companies offer suggestions regarding NDAs, voicing a 
common concern with respect to compliance with NDAs.\32\ EEI and PG&E 
both raise questions regarding how consultants and advisors use CEII to 
advise clients without revealing the CEII to the clients 
themselves.\33\ FirstEnergy states that it is impossible ``to 
meaningfully assess the risk that the CEII may be improperly disclosed 
to others (regardless of the execution of an NDA).'' \34\ Several of 
the commenters suggest that the Commission undertake to audit 
compliance with the NDAs.\35\ The Commission agrees that random audits 
may be useful in the future to ensure compliance with NDAs. Given that 
to date the NDAs have not included any clause whereby the requester 
agrees to such audit, the Commission believes that the NDAs should be 
revised accordingly, and audits should be restricted to those 
requesters who receive information pursuant to the revised NDAs. In 
addition, the Commission will add language to NDAs notifying requesters 
that a violation of the NDA could result in civil or criminal 
sanctions. This will provide requesters with an additional incentive to 
comply with the terms of the NDA.
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    \32\ See EEI at pp. 3-4, FirstEnergy at pp. 1-5, and 9-10, PG&E 
at pp. 1-2, and PJM at p. 7.
    \33\ EEI at p. 3, and PG&E at p. 2.
    \34\ FirstEnergy at p. 5.
    \35\ See EEI at pp. 3-4, FirstEnergy at pp. 9-10, and PG&E at p. 
2.
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H. Market-Based Rate Filings Issues

    24. APPA and TAPS evidence particular concern with market based 
rate [MBR] filings where the filer claims CEII treatment for portions 
of its filing. As discussed above, one concern is whether filers are 
over-designating portions of such filings as CEII, particularly where 
simultaneous transmission studies and underlying work papers are 
designated as CEII. Another concern is whether interveners have 
sufficient time to respond to market based rate filings for which CEII 
is claimed. TAPS urges the Commission to ``synchronize the time 
available to respond to MBR filings with the need to obtain CEII,'' 
citing the difficulty in responding within 21 days when it can take 30 
days or more to obtain access to CEII.\36\ TAPS recommends that the 
Commission adopt a policy ``to respond favorably to intervenor motions 
for additional time to prepare interventions and protests where it is 
necessary to obtain and analyze CEII.'' \37\
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    \36\ TAPS at pp. 2-3.
    \37\ TAPS at p. 4.
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    25. In response to commenters' concerns that intervenors should 
have sufficient time to respond to MBR filings for which CEII is 
claimed, the Commission is willing to consider on a case-by-case basis 
requests for extensions of time to prepare protests to MBR filings 
where an intervenor demonstrates that it needs additional time to 
obtain and analyze CEII. Intervenors should file a request for an 
extension of time before the deadline for comments runs, explicitly 
stating that they have filed a CEII request and are waiting for a 
response. If a CEII request is filed in a case involving a new 
application for MBR authority, however, the Commission's ability to 
grant a request for an extension of time would necessarily be limited 
by the statutory action date in such a case. In all MBR cases in which 
CEII is filed, the Commission strongly encourages the parties to either 
promptly negotiate a protective order in the proceeding governing 
access to the CEII, or privately negotiate for the submitter to provide 
the data to interested parties pursuant to an appropriate non-
disclosure agreement. Either one of these alternative approaches is 
more likely to expedite the requester's receipt of the information.

I. Miscellaneous Issues

    26. The Commission received several miscellaneous comments 
regarding its CEII processing. Weaver's Cove notes an apparent 
inconsistency in requiring a company like Weaver's Cove to submit a 
CEII request in order to obtain a response prepared by someone who made 
a responsive filing (marked as CEII) after gaining access to the 
Weaver's Cove original CEII pleading.\38\ Weaver's Cove urges staff to 
automatically release such information to the original submitter. The 
problem with this approach is that it is not

[[Page 37035]]

guaranteed that the responsive pleading does not contain additional 
CEII that was not already contained in the original CEII filing. It 
could be that the responsive pleading is marked as CEII because it 
contains CEII about a similar project. In that case, it would not be 
fair to automatically release the CEII. Instead, the Commission 
encourages entities to negotiate to get the information directly from 
the submitters. In fact, the Commission prefers that requesters 
negotiate directly with submitters whenever practical.
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    \38\ Weaver's Cove at p. 5.
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    27. PJM encourages the Commission to clarify that CEII released to 
an RTO, NERC or reliability coordinator does not invalidate the 
information's protection as CEII.\39\ As far as the Commission is 
concerned, such limited releases to entities with a clear need to know 
such information would not result in loss of CEII protection.
---------------------------------------------------------------------------

    \39\ PJM at p. 6.
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J. Federal Agency Requests

    28. In the course of reviewing its CEII regulations and processing, 
the Commission has revisited processing of federal agency requests. As 
the Commission gets more involved in reliability issues, its need to 
share information, particularly CEII, with fellow federal agencies 
increases. In light of this increased need to share CEII, the current 
system of requiring federal agencies to file formal CEII requests is 
impractical and unwieldy. For this reason, the Commission has decided 
to permit federal agencies to request CEII outside of the normal CEII 
process. As previously noted in Order No. 630-A, federal employees pose 
less of a security risk because most are screened as part of their 
federal employment.\40\ Henceforth, federal agency requesters can 
request CEII directly from the Commission without filing formal CEII 
requests under 18 CFR 388.113. Submitters of CEII will not be given 
notice and an opportunity to comment on federal agency requests. In 
order to control release of CEII, authority to approve federal agency 
requests is restricted to Commission officials at or above the level of 
division director.\41\ The regulation at 18 CFR 388.113(d) is amended 
to reflect this change.
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    \40\ Order No. 630-A, 68 FR 46456 at P 15, FERC Stats. & Regs. ] 
31,147. The Commission further reduced burdens on federal agency 
requesters in the CEII final rule it issued on August 3, 2004, which 
found that once an agency was granted to CEII in a particular 
docket, it no longer needed to file a formal CEII request to obtain 
additional CEII in that same docket. Critical Energy Infrastructure 
Information, Order No. 649, 69 FR 48386 at P 16 (Aug. 10, 2004), 108 
FERC ] 61,121 (2004).
    \41\ A representative of the requesting agency will, however, 
still be required to sign an acknowledgment and agreement 
recognizing the legal protections afforded to CEII, and agreeing 
that requests from the public for the information (including 
requests filed under the Freedom of Information Act, 5 U.S.C. 552) 
will be referred to the Commission for processing.
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Information Collection Statement

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

Environmental Analysis

    30. 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.\42\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment. Included in the exclusions are rules that are clarifying, 
corrective, or procedural or that do not substantially change the 
effect of the regulations being amended. 18 CFR 380.4(a)(2)(ii). This 
rule is procedural in nature and therefore falls under this exception; 
consequently, no environmental consideration is necessary.
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    \42\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs. Preambles 1986-1990 ] 30,783 (1987).
---------------------------------------------------------------------------

Regulatory Flexibility Act Certification

    31. The Regulatory Flexibility Act of 1980 (RFA) \43\ 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 proposed 
rule, if finalized, would not have such an impact on small entities.
---------------------------------------------------------------------------

    \43\ 5 U.S.C. 601-612.
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Document Availability

    32. 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.
    33. 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.
    34. 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

    35. These regulations are effective immediately upon publication in 
the Federal Register. In accordance with 5 U.S.C. 553(d)(3), the 
Commission finds that good cause exists to make this final rule 
effective immediately. The regulatory changes in the rule concern 
matters of internal operations and will not affect the rights of person 
appearing before the Commission. There is, therefore, no reason to make 
it effective at a later time.
    36. 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.
    37. The Commission is issuing this as a final rule without a period 
for public comment. Under 5 U.S.C. 553(b), notice and comment 
procedures are unnecessary where a rulemaking concerns only agency 
procedure and practice, or where the agency finds that notice and 
comment is unnecessary. The regulatory changes concern only matters of 
agency procedure and will not significantly affect regulated entities 
or the general public.

List of Subjects in 18 CFR Part 388

    Confidential business information, Freedom of information.

By the Commission.
Linda Mitry,
Deputy Secretary.

0
In consideration of the foregoing, the Commission amends part 388, 
Chapter I, Title 18, Code of Federal Regulations, as follows:

[[Page 37036]]

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. Amend Sec.  388.113 by revising the heading of paragraph (d), 
revising paragraph (d)(1), redesignating paragraph (d)(2) as paragraph 
(d)(3) and revising newly designated paragraph (d)(3)(i), and adding a 
new paragraph (d)(2) to read as follows:


Sec.  388.113  Accessing critical energy infrastructure information.

* * * * *
    (d) Accessing critical energy infrastructure information.
    (1) An Owner/operator of a facility, including employees and 
officers of the owner/operator, may obtain CEII relating to its own 
facility directly from Commission staff without going through the 
procedures outlined in paragraph (d)(3) of this section. Non-employee 
agents of an owner/operator of such facility may obtain CEII relating 
to the owner/operator's facility in the same manner as owner/operators 
as long as they present written authorization from the owner/operator 
to obtain such information.
    (2) 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. Any Commission employee at or above the level of division 
director or its equivalent may rule on federal agency representatives' 
requests for access to CEII.
    (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 requested has used and the dates 
the requester used such names(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. Requesters are also requested to include their social 
security number for identification purposes.
* * * * *

Appendix A

List of Commenters

[This appendix will not appear in the Code of Federal Regulations.]

----------------------------------------------------------------------------------------------------------------
                     Abbreviation                                                 Name
----------------------------------------------------------------------------------------------------------------
APPA.................................................  American Public Power Association.
BPA..................................................  Bonneville Power Administration.
Chandeleur and Sabine................................  Chandeleur Pipe Line Company and Sabine Pipe Line LLC.
Duke.................................................  Duke Energy Corporation.
EEI..................................................  Edison Electric Institute.
El Paso..............................................  El Paso Corporation's Pipeline Group.
FirstEnergy..........................................  FirstEnergy Corporation on behalf of its operating
                                                        companies Ohio Edison, The Cleveland Electric
                                                        Illuminating Company, Toledo Edison, Pennsylvania
                                                        Electric Company, Pennsylvania Power Company,
                                                        Metropolitan Edison Company, Jersey Central Power &
                                                        Light Company, and American Transmission Systems, Inc.
ITC..................................................  International Transmission Company.
INGAA................................................  Interstate Natural Gas Association of America.
MidAmerican..........................................  MidAmerican Energy Company.
NHA..................................................  National Hydropower Association.
PG&E.................................................  Pacific Gas & Electric Company.
PJM..................................................  PJM Interconnection, L.L.C.
SCE..................................................  Southern California Edison Company.
TAPS.................................................  Transmission Access Policy Study Group.
Weaver's Cove........................................  Weaver's Cove Energy LLC & Mill River Pipeline LLC.
Williston Basin......................................  Williston Basin Interstate Pipeline Company.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 05-12627 Filed 6-27-05; 8:45 am]
BILLING CODE 6717-01-P