Critical Energy Infrastructure Information, 18572-18574 [E7-7005]
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Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations
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[FR Doc. E7–7000 Filed 4–12–07; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 388
[Docket No. RM06–24–001; Order No. 683–
A]
Critical Energy Infrastructure
Information
Issued April 9, 2007.
Federal Energy Regulatory
Commission, Department of Energy.
AGENCY:
ACTION:
Final Rule, order on rehearing.
SUMMARY: On September 21, 2006, the
Commission issued a final rule that
clarified the definition of Critical Energy
Infrastructure Information (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. The Commission is
denying the petition for rehearing filed
by Edison Electric Institute.
Effective Date: This order
denying rehearing of the final rule will
become effective May 14, 2007.
DATES:
cprice-sewell on PRODPC61 with RULES
FOR FURTHER INFORMATION CONTACT:
Teresina A. Stasko, Office of the General
Counsel, Federal Energy Regulatory
Commission, 888 First Street, NE.,
Washington, DC 20426, Phone (202)
502–8317.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T. Kelliher,
Chairman; Suedeen G. Kelly, Marc Spitzer,
Philip D. Moeller, and Jon Wellinghoff.
VerDate Aug<31>2005
Final rule
paragraph No.
Compliance action
14:52 Apr 12, 2007
Jkt 211001
Order on Rehearing
(Issued April 9, 2007)
1. This order addresses the request for
rehearing filed by Edison Electric
Institute (EEI) of the Commission’s
September 21, 2006 Order in this
proceeding (September 21 Order), a
final rule that clarified the definition of
Critical Energy Infrastructure
Information (CEII), required requesters
of CEII to submit executed nondisclosure agreements (NDA) 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. Critical
Energy Infrastructure Information,
Order No. 683.1 This order denies EEI’s
request for rehearing for the reasons
explained below.2
Background
2. The Commission began its efforts
with respect to CEII shortly after the
attacks of September 11, 2001. See
Statement of Policy on Treatment of
Previously Public Documents.3 The
Commission issued a final rule on CEII
on February 21, 2003, defining CEII to
include information about proposed
facilities, as well as facilities already
licensed or certificated by the
Commission, and to exclude
information that simply identified the
location of the infrastructure. See Order
No. 630.4 The final rule also established
the position of CEII Coordinator. The
Commission issued Order No. 630–A on
July 23, 2003,5 which made several
1 71 FR 58,273 (October 3, 2006), FERC Stats. &
Regs. ¶ 31,228 (2006).
2 The California Coastal Commission, California
Energy Commission, California Electricity Oversight
Board, and California State Lands Commission
(collectively the California State Agencies) filed a
request for reconsideration. Although labeled as a
‘‘Request for Reconsideration,’’ the request is
actually an untimely request for rehearing. As
explained below, the Commission has long held
that it lacks authority to consider requests for
rehearing filed more than 30 days after issuance of
a Commission order.
3 66 FR 52917 (Oct. 18, 2001), 97 FERC ¶ 61,130
(2001).
4 68 FR 9857, FERC Stats. & Regs. ¶ 31,140 (Mar.
3, 2003).
5 68 FR 46456, FERC Stats. & Regs. ¶ 31,147 (Aug.
6, 2003)
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¶ 135
minor procedural changes and
clarifications, added a reference in the
regulation regarding the filing of NonInternet Public (NIP) information, a term
first described in Order No. 630,6 and
added a commitment to review the
effectiveness of the new process after six
months.
3. Simultaneous with the issuance of
the September 21 Order, the
Commission issued a notice of proposed
rulemaking (NOPR) in Docket No.
RM06–23–000.7 In the September 21
NOPR, the Commission sought
comments on the revisions to its
regulations to: (1) Allow an annual
certification for repeat requesters; (2)
allow an authorized representative of an
organization to execute an NDA on
behalf of the organization’s employees;
(3) include a fee provision; (4) respond
to CEII requests by letters from the CEII
Coordinator rather than by Commission
orders with rights to rehearing; and (5)
allow landowners access to alignment
sheets for the routes across or in the
vicinity of their properties. The
September 21 NOPR also proposed to
narrow the scope of information on
Commission forms that are defined as
containing CEII and proposed to abolish
the NIP designation.
Requests for Rehearing
4. On October 23, 2006, EEI filed a
timely request for rehearing of the
September 21 Order, and requested that
the Commission revoke its September
21 Order and reissue it as a new notice
of proposed rulemaking to be
considered with the September 21
NOPR. EEI alleged that the Commission
did not provide the due process
protections of the Administrative
6 NIP information includes location maps and
diagrams that do not rise to the level of CEII. Order
No. 630 provided the following examples of 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.’’ 68
FR 9857, FERC Stats. & Regs. ¶ 31,140.
7 71 FR 58,325 (October 3, 2006), FERC Stats. &
Regs. ¶ 32,607 (2006) (September 21 NOPR).
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Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations
Procedure Act (APA), 5 U.S.C. 553,
because the September 21 Order: (1)
Modified the definition of CEII without
proper notice and comment; (2)
combined the notice and opportunity to
comment with the notice of release; and
(3) permitted the CEII Coordinator to
enforce the CEII regulations by rejecting
applications if information is mislabeled
or legal justifications for CEII are not
provided.
5. On November 2, 2006, the
California State Agencies filed an
untimely request for reconsideration.
The California State Agencies requested
that the CEII Coordinator allow
flexibility to allow state agencies to
execute non-disclosure agreements
which depart from the standard state
agency NDA found on the Commission’s
Web site. The California State Agencies
further requested that the Commission
amend its CEII regulations to exclude
state agencies from the requirement of
showing a need for access in their CEII
requests, and to require the CEII
Coordinator to grant state agencies
access to CEII upon receiving a
completed CEII request, including an
executed NDA in a format acceptable to
the Commission.
Discussion
Procedural Issues
cprice-sewell on PRODPC61 with RULES
6. The California State Agencies’
request for reconsideration is equivalent
to an untimely request for rehearing.8
Rule 713 of the Commission’s Rules of
Practice and Procedure requires that
requests for rehearing be made within
thirty days of the date of the order.9
Rule 713(a)(1) provides that the rule is
applicable ‘‘to any request for rehearing
of a final Commission decision or other
final order.’’10 The final date for filing
a request for rehearing of the September
21 Order was October 23, 2006,11 a
deadline not met by the California State
Agencies. However, the California State
Agencies also filed their ‘‘Comments
and Request for Reconsideration’’ in
response to the September 21 NOPR.
Their comments address issues raised in
the September 21 NOPR and will be
considered in that proceeding.
8 We decline to treat the request for rehearing as
a request for reconsideration. Granting such a
request would in effect treat the rehearing request
as if it had been timely filed. See Midwest
Independent Transmission System Operator, Inc.,
112 FERC ¶ 61,211 at P 10 (2005); Golden Valley
Power Company, 114 FERC ¶ 61,212 at P 6 (2006).
9 18 CFR 385.713 (2006).
10 18 CFR 385.713(a)(1) (2006).
11 The expiration of the thirty-day period, October
21, 2006, fell on a Saturday; therefore, the filing
deadline for requests for rehearing was October 23,
2006, the next business day.
VerDate Aug<31>2005
14:52 Apr 12, 2007
Jkt 211001
EEI’s Request for Rehearing
Clarification of the Definition of CEII
7. EEI’s contention that any
modification to the definition of CEII is
substantive is without merit. The APA
provides exemptions to its notice and
comment rulemaking requirements. See
5 U.S.C. 553(b)(A). Specifically,
interpretative rules, general statements
of policy, or rules of agency
organization, procedure, or practice are
exempt. Id. As the Commission’s
September 21 Order interprets its
definition of CEII, it is not a substantive
change requiring notice and comment.
The Commission may interpret and
clarify its regulations without making a
substantive change. Courts have found
that agency rules explaining terms in
statutes and regulations are
interpretive.12 Courts have also held
that rules that merely restate existing
duties, rather than creating new duties,
are interpretive.13
8. A clarification ‘‘does not * * *
become an amendment merely because
it supplies crisper and more detailed
lines than the authority being
interpreted.’’14 Previously, the
regulation stated that ‘‘Critical energy
infrastructure information means
information about proposed or existing
critical infrastructure that: (i) Relates to
the production, generation,
transportation, transmission, or
distribution of energy; (ii) Could be
useful to a person in planning an attack
on critical infrastructure; (iii) Is exempt
from mandatory disclosure under the
Freedom of Information Act, 5 U.S.C.
552; and (iv) Does not simply give the
location of the critical infrastructure.’’
18 CFR 388.113(c)(1). The September 21
Order explained that ‘‘information about
proposed or existing critical
infrastructure’’ means ‘‘specific
engineering, vulnerability, or detailed
design information about proposed or
existing critical infrastructure.’’15 The
clarification explained the existing term
‘‘information.’’ The clarification serves
to advise the public of the Commission’s
12 See, e.g., American Postal Workers Union v.
United States Postal Service, 707 F.2d 548, 559–60
(D.C. Cir. 1983) (finding that the postal service’s
new method of calculating retirement benefits was
interpretive because adoption of the method turned
on the agency’s understanding of the statutory term
‘‘average pay’’), cert. denied, 465 U.S. 1100 (1984).
13 See, e.g., General Motors Corp. v. Ruckelshaus,
742 F.2d 1561, 1565 (D.C. Cir. 1984) (finding
interpretive a rule that restated consistent agency
practice based on the Environmental Protection
Agency’s understanding of the recall provision of
the Clean Air Act), cert. denied, 471 U.S. 1074
(1985).
14 American Mining Congress v. Mine Safety &
Health Admin., 995 F.2d 1106, 1112 (D.C. Cir.
1993).
15 September 21 Order at P 6.
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18573
construction of the term information as
defined in Order No. 630. The
September 21 Order also clarified the
meaning of ‘‘relates to the production,
generation, transportation, transmission,
or distribution of energy.’’ The
September 21 Order advised the public
that it is the ‘‘details about the
production, generation, transportation,
transmission, or distribution of energy’’
that the Commission deems CEII.16
These explanations and clarifications
are merely interpretations and notice
and comment are unnecessary.
Combination of the Notice and
Opportunity to Comment With the
Notice of Release
9. EEI is mistaken that the
combination of the notice and
opportunity to comment with the notice
of release eliminates due process rights
of CEII submitters or reduces the notice
from ten days to five days. Pursuant to
18 CFR 388.112, any person submitting
documents to the Commission may
request special treatment of some or all
of the information found in the
documents. Paragraph (d) of this section
provides the standards for notifying the
submitter of a request for the
information, and states:
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 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.
Paragraph (e) of this section provides
the standards for notification prior to
release of documents for which
privileged treatment was requested, and
states:
Notice of a decision by the Director, Office
of External Affairs, the Chairman of the
Commission, the General Counsel or General
Counsel’s designee, a presiding officer in a
proceeding under part 385 of this chapter, or
any other appropriate official to deny a claim
of privilege in whole or in part, or to make
a limited release of CEII, will be given to any
person claiming that information is
privileged or CEII no less than five days
before public disclosure. The notice will
briefly explain why the person’s objections to
disclosure are not sustained by the
Commission. A copy of this notice will be
sent to the FOIA or CEII requester.
Thus, when the submitter of
information requests confidential or
CEII treatment of that information and
opposes its release, the Commission
16 Id.
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Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations
will, by regulation, notify the submitter
at least five days prior to disclosure.
This allows the submitter an
opportunity to respond, as well as to
pursue an injunction against release in
district court.
10. The Commission’s regulations do
not require separation of the
opportunity to comment and notice of
release. However, it was the
Commission’s practice in processing
CEII requests to issue these notifications
separately. As the Commission
explained in its September 21 Order,
combining the two will increase the
efficiency of processing CEII requests.
See September 21 Order at P 9–10. But
those opposing release will continue to
have ten days of notice before the
information is released.
11. Contrary to EEI’s assertion, there
is no inconsistency in the application of
the rules to CEII and FOIA requests. The
combined notice that the Commission
sends pursuant to the September 21
Order explains that a submitter has an
opportunity (5-day minimum) to submit
timely comments opposing release. See
18 CFR 388.112(d). It further explains
that if the submitter provides timely
comments, he or she will be notified in
advance of the release of any
information in accordance with 18 CFR
388.112(e) (another 5-day minimum). In
other words, if the submitter provides
comments, a second notice of release
follows the first (a total of 10-day
minimum). In the event timely
comments opposing release are not
received, the combined notice
constitutes notice of release of the
specified document in accordance with
18 CFR 388.112(e), subject to an
appropriate non-disclosure agreement.
The combined opportunity to comment
and notice of release does not reduce
the submitter’s opportunity to respond
or to pursue judicial relief.
cprice-sewell on PRODPC61 with RULES
Requirements To Comply With
Procedural Requirements
12. The September 21 Order states
that an application will be rejected in its
entirety if information is mislabeled as
CEII or a legal justification for CEII is
not provided. The purpose of that rule
is to dissuade applicants from carelessly
using the CEII designation because such
misuse prevents interested parties and
other deserving members of the public
from accessing needed information in
the timeliest manner. As the
Commission said in the September 21
NOPR, the ‘‘Commission retains its
concern for CEII filing abuses and will
take action against applicants or parties
who knowingly misfile information as
VerDate Aug<31>2005
14:52 Apr 12, 2007
Jkt 211001
CEII.’’ 17 The Commission disagrees
with EEI’s assertion that rejection is
unacceptably harsh. Applications are
frequently rejected for failure to comply
with procedural requirements. See, e.g.,
ANR Pipeline Co., 103 FERC ¶ 61,261 at
P 8 (2003) (rejecting filing without
prejudice to filing a fully supported
application in accordance with the
Commission’s regulations). In instances
in which documents are rejected for
filing, the rejection is usually without
prejudice and no substantive rights are
lost. Id. The application must merely be
refiled in accordance with the
procedural requirements. That is not
harsh, but rather promotes the proper
use of the CEII designation.
The Commission orders:
EEI’s request for rehearing is denied
as described above. The California State
Agencies’ request for reconsideration is
rejected in this docket as untimely filed.
By the Commission.
Philis J. Posey,
Acting Secretary.
[FR Doc. E7–7005 Filed 4–12–07; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF HOMELAND
SECURITY
Bureau of Customs and Border
Protection
19 CFR Part 123
Advance Electronic Presentation of
Cargo Information for Truck Carriers
Required To Be Transmitted Through
ACE Truck Manifest at Ports in the
States of Vermont, North Dakota and
New Hampshire
Customs and Border Protection,
Department of Homeland Security.
ACTION: Final rule.
AGENCY:
SUMMARY: Pursuant to section 343(a) of
the Trade Act of 2002 and implementing
regulations, truck carriers and other
eligible parties are required to transmit
advance electronic truck cargo
information to the Bureau of Customs
and Border Protection (CBP) through a
CBP-approved electronic data
interchange. In a previous document,
CBP designated the Automated
Commercial Environment (ACE) Truck
Manifest System as the approved
interchange and announced that the
requirement that advance electronic
cargo information be transmitted
through ACE would be phased in by
groups of ports of entry. This document
announces that at all land border ports
17 September
PO 00000
Frm 00012
21 NOPR at P 17.
Fmt 4700
Sfmt 4700
in Vermont and New Hampshire and at
the land border ports in North Dakota in
which ACE has not yet been required,
truck carriers will be required to file
electronic manifests through the ACE
Truck Manifest System.
DATES: Trucks entering the United
States through land border ports of entry
in the states of Vermont and New
Hampshire and at the ports of St. John,
Fortuna, Ambrose, Carbury, Noonan,
Dunseith, Sherwood, Antler, Northgate,
Westhope, and Portal in the state of
North Dakota, will be required to
transmit the advance information
through the ACE Truck Manifest system
effective July 12, 2007.
FOR FURTHER INFORMATION CONTACT: Mr.
James Swanson, via e-mail at
james.d.swanson@dhs.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 343(a) of the Trade Act of
2002, as amended (the Act; 19 U.S.C.
2071 note), required that CBP
promulgate regulations providing for the
mandatory transmission of electronic
cargo information by way of a CBPapproved electronic data interchange
(EDI) system before the cargo is brought
into or departs the United States by any
mode of commercial transportation (sea,
air, rail or truck). The cargo information
required is that which is reasonably
necessary to enable high-risk shipments
to be identified for purposes of ensuring
cargo safety and security and preventing
smuggling pursuant to the laws enforced
and administered by CBP.
On December 5, 2003, CBP published
in the Federal Register (68 FR 68140) a
final rule to effectuate the provisions of
the Act. In particular, a new section
123.92 (19 CFR 123.92) was added to
the regulations to implement the
inbound truck cargo provisions. Section
123.92 describes the general
requirement that, in the case of any
inbound truck required to report its
arrival under section 123.1(b), if the
truck will have commercial cargo
aboard, CBP must electronically receive
certain information regarding that cargo
through a CBP-approved EDI system no
later than 1 hour prior to the carrier’s
reaching the first port of arrival in the
United States. For truck carriers arriving
with shipments qualified for clearance
under the FAST (Free and Secure Trade)
program, section 123.92 provides that
CBP must electronically receive such
cargo information through the CBPapproved EDI system no later than 30
minutes prior to the carrier’s reaching
the first port of arrival in the United
States.
E:\FR\FM\13APR1.SGM
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]]>Agencies
[Federal Register Volume 72, Number 71 (Friday, April 13, 2007)]
[Rules and Regulations]
[Pages 18572-18574]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7005]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 388
[Docket No. RM06-24-001; Order No. 683-A]
Critical Energy Infrastructure Information
Issued April 9, 2007.
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Final Rule, order on rehearing.
-----------------------------------------------------------------------
SUMMARY: On September 21, 2006, the Commission issued a final rule that
clarified the definition of Critical Energy Infrastructure Information
(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. The Commission is denying the
petition for rehearing filed by Edison Electric Institute.
DATES: Effective Date: This order denying rehearing of the final rule
will become effective May 14, 2007.
FOR FURTHER INFORMATION CONTACT: Teresina A. Stasko, Office of the
General Counsel, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426, Phone (202) 502-8317.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G.
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.
Order on Rehearing
(Issued April 9, 2007)
1. This order addresses the request for rehearing filed by Edison
Electric Institute (EEI) of the Commission's September 21, 2006 Order
in this proceeding (September 21 Order), a final rule that clarified
the definition of Critical Energy Infrastructure Information (CEII),
required requesters of CEII to submit executed non-disclosure
agreements (NDA) 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. Critical Energy Infrastructure
Information, Order No. 683.\1\ This order denies EEI's request for
rehearing for the reasons explained below.\2\
---------------------------------------------------------------------------
\1\ 71 FR 58,273 (October 3, 2006), FERC Stats. & Regs. ] 31,228
(2006).
\2\ The California Coastal Commission, California Energy
Commission, California Electricity Oversight Board, and California
State Lands Commission (collectively the California State Agencies)
filed a request for reconsideration. Although labeled as a ``Request
for Reconsideration,'' the request is actually an untimely request
for rehearing. As explained below, the Commission has long held that
it lacks authority to consider requests for rehearing filed more
than 30 days after issuance of a Commission order.
---------------------------------------------------------------------------
Background
2. The Commission began its efforts with respect to CEII shortly
after the attacks of September 11, 2001. See Statement of Policy on
Treatment of Previously Public Documents.\3\ The Commission issued a
final rule on CEII on February 21, 2003, defining CEII to include
information about proposed facilities, as well as facilities already
licensed or certificated by the Commission, and to exclude information
that simply identified the location of the infrastructure. See Order
No. 630.\4\ The final rule also established the position of CEII
Coordinator. The Commission issued Order No. 630-A on July 23, 2003,\5\
which 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,\6\ and
added a commitment to review the effectiveness of the new process after
six months.
---------------------------------------------------------------------------
\3\ 66 FR 52917 (Oct. 18, 2001), 97 FERC ] 61,130 (2001).
\4\ 68 FR 9857, FERC Stats. & Regs. ] 31,140 (Mar. 3, 2003).
\5\ 68 FR 46456, FERC Stats. & Regs. ] 31,147 (Aug. 6, 2003)
\6\ NIP information includes location maps and diagrams that do
not rise to the level of CEII. Order No. 630 provided the following
examples of 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.'' 68
FR 9857, FERC Stats. & Regs. ] 31,140.
---------------------------------------------------------------------------
3. Simultaneous with the issuance of the September 21 Order, the
Commission issued a notice of proposed rulemaking (NOPR) in Docket No.
RM06-23-000.\7\ In the September 21 NOPR, the Commission sought
comments on the revisions to its regulations to: (1) Allow an annual
certification for repeat requesters; (2) allow an authorized
representative of an organization to execute an NDA on behalf of the
organization's employees; (3) include a fee provision; (4) respond to
CEII requests by letters from the CEII Coordinator rather than by
Commission orders with rights to rehearing; and (5) allow landowners
access to alignment sheets for the routes across or in the vicinity of
their properties. The September 21 NOPR also proposed to narrow the
scope of information on Commission forms that are defined as containing
CEII and proposed to abolish the NIP designation.
---------------------------------------------------------------------------
\7\ 71 FR 58,325 (October 3, 2006), FERC Stats. & Regs. ] 32,607
(2006) (September 21 NOPR).
---------------------------------------------------------------------------
Requests for Rehearing
4. On October 23, 2006, EEI filed a timely request for rehearing of
the September 21 Order, and requested that the Commission revoke its
September 21 Order and reissue it as a new notice of proposed
rulemaking to be considered with the September 21 NOPR. EEI alleged
that the Commission did not provide the due process protections of the
Administrative
[[Page 18573]]
Procedure Act (APA), 5 U.S.C. 553, because the September 21 Order: (1)
Modified the definition of CEII without proper notice and comment; (2)
combined the notice and opportunity to comment with the notice of
release; and (3) permitted the CEII Coordinator to enforce the CEII
regulations by rejecting applications if information is mislabeled or
legal justifications for CEII are not provided.
5. On November 2, 2006, the California State Agencies filed an
untimely request for reconsideration. The California State Agencies
requested that the CEII Coordinator allow flexibility to allow state
agencies to execute non-disclosure agreements which depart from the
standard state agency NDA found on the Commission's Web site. The
California State Agencies further requested that the Commission amend
its CEII regulations to exclude state agencies from the requirement of
showing a need for access in their CEII requests, and to require the
CEII Coordinator to grant state agencies access to CEII upon receiving
a completed CEII request, including an executed NDA in a format
acceptable to the Commission.
Discussion
Procedural Issues
6. The California State Agencies' request for reconsideration is
equivalent to an untimely request for rehearing.\8\ Rule 713 of the
Commission's Rules of Practice and Procedure requires that requests for
rehearing be made within thirty days of the date of the order.\9\ Rule
713(a)(1) provides that the rule is applicable ``to any request for
rehearing of a final Commission decision or other final order.''\10\
The final date for filing a request for rehearing of the September 21
Order was October 23, 2006,\11\ a deadline not met by the California
State Agencies. However, the California State Agencies also filed their
``Comments and Request for Reconsideration'' in response to the
September 21 NOPR. Their comments address issues raised in the
September 21 NOPR and will be considered in that proceeding.
---------------------------------------------------------------------------
\8\ We decline to treat the request for rehearing as a request
for reconsideration. Granting such a request would in effect treat
the rehearing request as if it had been timely filed. See Midwest
Independent Transmission System Operator, Inc., 112 FERC ] 61,211 at
P 10 (2005); Golden Valley Power Company, 114 FERC ] 61,212 at P 6
(2006).
\9\ 18 CFR 385.713 (2006).
\10\ 18 CFR 385.713(a)(1) (2006).
\11\ The expiration of the thirty-day period, October 21, 2006,
fell on a Saturday; therefore, the filing deadline for requests for
rehearing was October 23, 2006, the next business day.
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EEI's Request for Rehearing
Clarification of the Definition of CEII
7. EEI's contention that any modification to the definition of CEII
is substantive is without merit. The APA provides exemptions to its
notice and comment rulemaking requirements. See 5 U.S.C. 553(b)(A).
Specifically, interpretative rules, general statements of policy, or
rules of agency organization, procedure, or practice are exempt. Id. As
the Commission's September 21 Order interprets its definition of CEII,
it is not a substantive change requiring notice and comment. The
Commission may interpret and clarify its regulations without making a
substantive change. Courts have found that agency rules explaining
terms in statutes and regulations are interpretive.\12\ Courts have
also held that rules that merely restate existing duties, rather than
creating new duties, are interpretive.\13\
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\12\ See, e.g., American Postal Workers Union v. United States
Postal Service, 707 F.2d 548, 559-60 (D.C. Cir. 1983) (finding that
the postal service's new method of calculating retirement benefits
was interpretive because adoption of the method turned on the
agency's understanding of the statutory term ``average pay''), cert.
denied, 465 U.S. 1100 (1984).
\13\ See, e.g., General Motors Corp. v. Ruckelshaus, 742 F.2d
1561, 1565 (D.C. Cir. 1984) (finding interpretive a rule that
restated consistent agency practice based on the Environmental
Protection Agency's understanding of the recall provision of the
Clean Air Act), cert. denied, 471 U.S. 1074 (1985).
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8. A clarification ``does not * * * become an amendment merely
because it supplies crisper and more detailed lines than the authority
being interpreted.''\14\ Previously, the regulation stated that
``Critical energy infrastructure information means information about
proposed or existing critical infrastructure that: (i) Relates to the
production, generation, transportation, transmission, or distribution
of energy; (ii) Could be useful to a person in planning an attack on
critical infrastructure; (iii) Is exempt from mandatory disclosure
under the Freedom of Information Act, 5 U.S.C. 552; and (iv) Does not
simply give the location of the critical infrastructure.'' 18 CFR
388.113(c)(1). The September 21 Order explained that ``information
about proposed or existing critical infrastructure'' means ``specific
engineering, vulnerability, or detailed design information about
proposed or existing critical infrastructure.''\15\ The clarification
explained the existing term ``information.'' The clarification serves
to advise the public of the Commission's construction of the term
information as defined in Order No. 630. The September 21 Order also
clarified the meaning of ``relates to the production, generation,
transportation, transmission, or distribution of energy.'' The
September 21 Order advised the public that it is the ``details about
the production, generation, transportation, transmission, or
distribution of energy'' that the Commission deems CEII.\16\ These
explanations and clarifications are merely interpretations and notice
and comment are unnecessary.
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\14\ American Mining Congress v. Mine Safety & Health Admin.,
995 F.2d 1106, 1112 (D.C. Cir. 1993).
\15\ September 21 Order at P 6.
\16\ Id.
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Combination of the Notice and Opportunity to Comment With the Notice of
Release
9. EEI is mistaken that the combination of the notice and
opportunity to comment with the notice of release eliminates due
process rights of CEII submitters or reduces the notice from ten days
to five days. Pursuant to 18 CFR 388.112, any person submitting
documents to the Commission may request special treatment of some or
all of the information found in the documents. Paragraph (d) of this
section provides the standards for notifying the submitter of a request
for the information, and states:
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 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.
Paragraph (e) of this section provides the standards for
notification prior to release of documents for which privileged
treatment was requested, and states:
Notice of a decision by the Director, Office of External
Affairs, the Chairman of the Commission, the General Counsel or
General Counsel's designee, a presiding officer in a proceeding
under part 385 of this chapter, or any other appropriate official to
deny a claim of privilege in whole or in part, or to make a limited
release of CEII, will be given to any person claiming that
information is privileged or CEII no less than five days before
public disclosure. The notice will briefly explain why the person's
objections to disclosure are not sustained by the Commission. A copy
of this notice will be sent to the FOIA or CEII requester.
Thus, when the submitter of information requests confidential or
CEII treatment of that information and opposes its release, the
Commission
[[Page 18574]]
will, by regulation, notify the submitter at least five days prior to
disclosure. This allows the submitter an opportunity to respond, as
well as to pursue an injunction against release in district court.
10. The Commission's regulations do not require separation of the
opportunity to comment and notice of release. However, it was the
Commission's practice in processing CEII requests to issue these
notifications separately. As the Commission explained in its September
21 Order, combining the two will increase the efficiency of processing
CEII requests. See September 21 Order at P 9-10. But those opposing
release will continue to have ten days of notice before the information
is released.
11. Contrary to EEI's assertion, there is no inconsistency in the
application of the rules to CEII and FOIA requests. The combined notice
that the Commission sends pursuant to the September 21 Order explains
that a submitter has an opportunity (5-day minimum) to submit timely
comments opposing release. See 18 CFR 388.112(d). It further explains
that if the submitter provides timely comments, he or she will be
notified in advance of the release of any information in accordance
with 18 CFR 388.112(e) (another 5-day minimum). In other words, if the
submitter provides comments, a second notice of release follows the
first (a total of 10-day minimum). In the event timely comments
opposing release are not received, the combined notice constitutes
notice of release of the specified document in accordance with 18 CFR
388.112(e), subject to an appropriate non-disclosure agreement. The
combined opportunity to comment and notice of release does not reduce
the submitter's opportunity to respond or to pursue judicial relief.
Requirements To Comply With Procedural Requirements
12. The September 21 Order states that an application will be
rejected in its entirety if information is mislabeled as CEII or a
legal justification for CEII is not provided. The purpose of that rule
is to dissuade applicants from carelessly using the CEII designation
because such misuse prevents interested parties and other deserving
members of the public from accessing needed information in the
timeliest manner. As the Commission said in the September 21 NOPR, the
``Commission retains its concern for CEII filing abuses and will take
action against applicants or parties who knowingly misfile information
as CEII.'' \17\ The Commission disagrees with EEI's assertion that
rejection is unacceptably harsh. Applications are frequently rejected
for failure to comply with procedural requirements. See, e.g., ANR
Pipeline Co., 103 FERC ] 61,261 at P 8 (2003) (rejecting filing without
prejudice to filing a fully supported application in accordance with
the Commission's regulations). In instances in which documents are
rejected for filing, the rejection is usually without prejudice and no
substantive rights are lost. Id. The application must merely be refiled
in accordance with the procedural requirements. That is not harsh, but
rather promotes the proper use of the CEII designation.
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\17\ September 21 NOPR at P 17.
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The Commission orders:
EEI's request for rehearing is denied as described above. The
California State Agencies' request for reconsideration is rejected in
this docket as untimely filed.
By the Commission.
Philis J. Posey,
Acting Secretary.
[FR Doc. E7-7005 Filed 4-12-07; 8:45 am]
BILLING CODE 6717-01-P
