FAST Act Section 61003-Critical Electric Infrastructure Security and Critical Energy Infrastructure Information, 24656-24661 [2018-11537]

Download as PDF 24656 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations (2) The installation of the FADEC EEC or software standard must be accomplished in accordance with a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus’s EASA DOA. If approved by the DOA, the approval must include the DOAauthorized signature. power conditions after a single or dual inflight engine shutdown. (f) Compliance Comply with this AD within the compliance times specified, unless already done. (g) Definitions (1) For the purposes of this AD, an affected full authority digital engine control (FADEC) electronic engine controller (EEC) is one with a part number listed in table 1 to paragraph (g)(1) of this AD. TABLE 1 TO PARAGRAPH (g)(1) OF THIS AD—AFFECTED FADEC EEC PART NUMBERS Affected FADEC EEC part No. 5315126 5315126SK02 5323434 5323745 5323746 5324836 5324836–001 5324836–002 5324837 5325185 5325971 5325975 (2) For the purposes of this AD, Group 1 airplanes are defined as those that have an affected FADEC EEC installed. (3) For the purposes of this AD, Group 2 airplanes are defined as those that do not have an affected FADEC EEC installed. (h) Modification For Group 1 airplanes: Within 30 days after the effective date of this AD, modify the airplane by replacing affected FADEC EECs installed on both engines with FADEC EEC part number 5327582 (software standard FCS4.4), or by installing software standard FCS4.4 and re-identifying the affected FADEC EEC, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–73–1128, Revision 01, dated May 17, 2018. (i) Parts Installation Limitation sradovich on DSK3GMQ082PROD with RULES As of 30 days after the effective date of this AD, do not install an affected FADEC EEC on any airplane. (j) Later-Approved Parts Installation on an airplane of a FADEC EEC or software standard having a part number approved after the effective date of this AD is acceptable for compliance with the requirements of paragraph (h) of this AD, provided the conditions in paragraphs (j)(1) and (j)(2) of this AD are met. (1) The FADEC EEC or software standard part number must be approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus’s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature. VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 (k) Clarification of Affected Airplanes An airplane on which Airbus modification 163473 has been embodied in production is not affected by the requirements of paragraph (h) of this AD, provided it can be conclusively determined that no affected FADEC EEC is installed on that airplane. (l) Credit for Previous Actions This paragraph provides credit for the actions required by paragraph (h) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320–73–1128, dated May 15, 2018. (m) Other FAA AD Provisions The following provisions also apply to this AD: (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (n)(2) of this AD. Information may be emailed to: 9-ANM-116-AMOCREQUESTS@faa.gov. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus’s EASA DOA. If approved by the DOA, the approval must include the DOAauthorized signature. (3) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator’s maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC. (n) Related Information (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2018–0110, dated May 18, 2018, for related information. You PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA–2018–0492. (2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206– 231–3323. (3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (o)(3) and (o)(4) of this AD. (o) Material Incorporated by Reference (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51. (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise. (i) Airbus Service Bulletin A320–73–1128, Revision 01, dated May 17, 2018. (ii) Reserved. (3) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email account.airworth-eas@ airbus.com; internet http://www.airbus.com. (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: http:// www.archives.gov/federal-register/cfr/ibrlocations.html. Issued in Des Moines, Washington, on May 23, 2018. James Cashdollar, Acting Director, System Oversight Division, Aircraft Certification Service. [FR Doc. 2018–11659 Filed 5–29–18; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 375 and 388 [Docket No. RM16–15–001; Order No. 833–A] FAST Act Section 61003—Critical Electric Infrastructure Security and Critical Energy Infrastructure Information Federal Energy Regulatory Commission. ACTION: Order on clarification and rehearing. AGENCY: E:\FR\FM\30MYR1.SGM 30MYR1 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations The Federal Energy Regulatory Commission (Commission) in this order on clarification and rehearing grants in part Edison Electric Institute’s request for clarification or, in the alternative, rehearing of Order No. 833, and denies rehearing of that order, which amends the Commission’s regulations to implement provisions of the Fixing America’s Surface Transportation Act pertaining to the designation, protection, and sharing of Critical Energy/Electric Infrastructure Information. DATES: This order is effective July 30, 2018. FOR FURTHER INFORMATION CONTACT: Nneka Frye, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502– 6029, Nneka.frye@ferc.gov Christopher MacFarlane, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502–6761, Christopher.macfarlane@ferc.gov Mark Hershfield, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502– 8597, Mark.hershfield@ferc.gov SUPPLEMENTARY INFORMATION: SUMMARY: Order No. 833–A Order on Clarification and Rehearing (Issued May 17, 2018) 1. In Order No. 833, the Commission amended its regulations to implement provisions of the Fixing America’s Surface Transportation Act (FAST Act) 1 related to Critical Electric Infrastructure Information.2 In addition, Order No. 833 revised the Commission’s Critical Energy Infrastructure Information regulations.3 Edison Electric Institute (EEI) requested clarification or, in the alternative, rehearing of Order No. 833. For the reasons discussed below, we grant EEI’s request for clarification in part and deny rehearing. sradovich on DSK3GMQ082PROD with RULES I. Order No. 833 2. On December 4, 2015, the FAST Act was signed into law. The FAST Act, inter alia, added section 215A to the 1 Fixing America’s Surface Transportation Act, Public Law 114–94, section 61,003, 129 Stat. 1312, 1773–1779 (2015) (codified at 16 U.S.C. 824o–1). 2 Regulations Implementing FAST Act Section 61003—Critical Electric Infrastructure Security and Amending Critical Energy Infrastructure Information, Availability of Certain North American Electric Reliability Corporation Databases to the Commission, Order No. 833, 157 FERC ¶ 61,123 (2016), see 81 FR 93732 (Dec. 21, 2016). 3 Id. VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 Federal Power Act (FPA) to improve the security and resilience of energy infrastructure in the face of emergencies. The FAST Act directed the Commission to issue regulations that provide: (1) The criteria and procedures for designating information as Critical Electric Infrastructure Information; (2) a specific prohibition on unauthorized disclosure of Critical Electric Infrastructure Information; (3) sanctions for the knowing and willful unauthorized disclosure of Critical Electric Infrastructure Information by Commission and Department of Energy (DOE) employees; and (4) a process for voluntary sharing of Critical Electric Infrastructure Information.4 3. On June 16, 2016, the Commission issued a Notice of Proposed Rulemaking (NOPR) to amend its regulations to implement the provisions of the FAST Act pertaining to the designation, protection, and sharing of Critical Electric Infrastructure Information and to revise the existing Critical Energy Infrastructure Information regulations.5 The NOPR proposed that the amended procedures be referred to as the Critical Energy/Electric Infrastructure Information (CEII) Procedures.6 In response to the NOPR, nineteen entities filed comments and two entities filed reply comments. 4. On November 17, 2016, the Commission issued Order No. 833, which amended the Commission’s regulations at 18 CFR 375.309, 375.313, 388.112 and 388.113 to implement the FAST Act provisions that pertain to the designation, protection and sharing of Critical Electric Infrastructure Information. Order No. 833 also revised the existing Critical Energy Infrastructure Information regulations. The Commission determined that the amended regulations comply with the requirements of the FAST Act and better ensure the secure treatment of CEII.7 24657 A. Requests for Access to CEII Order No. 833 5. EEI asserts that the Commission either erred or should reconsider five aspects of Order No. 833.8 As discussed below, we grant EEI’s request for clarification in part and deny EEI’s request for rehearing. 6. The FAST Act required the Commission, taking into account standards of the Electric Reliability Organization, to facilitate voluntary sharing of Critical Electric Infrastructure Information. The statute directed the Commission to facilitate voluntary sharing with, between, and by Federal, State, political subdivision, and tribal authorities; the Electric Reliability Organization; regional entities; information sharing and analysis centers established pursuant to Presidential Decision Directive 63; owners, operators, and users of critical electric infrastructure in the United States; and other entities determined appropriate by the Commission.9 7. In Order No. 833, the Commission established procedures in its regulations for providing CEII to third parties. Specifically, in § 388.113(f), the Commission established a process for the Commission to voluntarily share CEII when there is a need to ensure energy infrastructure is protected. Separately, in § 388.113(g), the Commission revised its long-standing procedures for members of the public to request access to CEII by requiring a statement demonstrating a valid and legitimate need for the information.10 Both processes contain procedures to notify submitters of the CEII of the Commission’s prospective sharing of its CEII as well as a requirement that prospective CEII recipients execute Non-Disclosure Agreements (NDA). 8. The Commission also stated that the procedures do not impose a sharing requirement on entities; instead, the provisions allow the Commission to exercise discretion to share CEII that has already been submitted to, or generated by, the Commission.11 Further, the Commission determined that even if the Commission’s voluntary sharing of information were viewed as the same as a third-party sharing it, the Commission must balance its obligation to disclose information as necessary to carry out the Commission’s jurisdictional responsibilities against an entity’s preference not to have information disclosed.12 4 See generally FAST Act, Public Law 114–94, section 61,003, 129 Stat. 1312, 1776. 5 Regulations Implementing FAST Act Section 61003—Critical Electric Infrastructure Security and Amending Critical Energy Infrastructure Information, 155 FERC ¶ 61,278 (2016) (NOPR), see 81 FR 43557 (July 5, 2016). 6 Id. 7 See generally Order No. 833, 157 FERC ¶ 61,123. 8 EEI Request at 6–7. 9 FAST Act, Public Law 114–94, section 61,003, 129 Stat. 1312, 1776. 10 The CEII request procedures found in § 388.113(g) were first established under the Commission’s Critical Energy Infrastructure Information regulations in 2003. See Critical Energy Infrastructure Information, Order No. 630, FERC Stats. & Regs. ¶ 31,140, order on reh’g, Order No. 630–A, FERC Stats. & Regs. ¶ 31,147 (2003). 11 Order No. 833, 157 FERC ¶ 61,123 at P 125. 12 Id. P 126. II. Discussion PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1 24658 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations in certain circumstances, CEII that was submitted to, or generated by, the Commission.16 Under both the prior regulations and the revised regulations at 18 CFR 388.113(d)(1)(vi), a submitter is, as EEI acknowledges, provided an opportunity to comment on the potential disclosure of its CEII.17 Prior to any determination to release CEII to a requester, pursuant to 18 CFR 388.113(g)(5)(iii), the CEII Coordinator will take into consideration any objections and ‘‘will balance the requester’s need for the information against the sensitivity of the information.’’ Other than characterizing a determination by the CEII Coordinator to ultimately release CEII over an objection as ‘‘involuntary sharing,’’ EEI does not propose any change to the Commission’s long-standing approach nor does EEI demonstrate that the FAST Act is intended to restrict the Commission from sharing CEII, under an NDA, with third parties that have a Commission Determination valid and legitimate need for the material.18 10. We deny clarification and 13. In addition, our reading of the rehearing of this issue. We disagree with EEI’s contention that the FAST Act only FAST Act is consistent with EEI’s directs the voluntary sharing of CEII ‘‘by statement that ‘‘[u]nder the plain meaning of the FAST Act statute, the and between’’ entities or that the term ‘voluntary’ means the Commission Commission’s release of information over a submitter’s objections constitutes should implement an information sharing process that allows owners to ‘‘involuntary’’ sharing of such share information intentionally and information. EEI misconstrues FPA freely.’’ 19 The new voluntary sharing section 215A(d)(2)(D) to argue that the provisions, at 18 CFR 388.113(f) of the statute’s directives regarding voluntary Commission’s CEII regulations, only sharing do not include voluntary govern the process by which the sharing of CEII by the Commission. Such Commission will voluntarily share CEII a reading is inconsistent with the FAST that has been submitted to the Act in two respects. 20 11. First, FPA section 215A(d)(2)(D)(i) Commission or generated by staff. provides that the Commission’s 16 Order No. 833, 157 FERC ¶ 61,123 at P 125. regulations should ‘‘facilitate voluntary 17 EEI’s argument pertains to the CEII request sharing of critical electric infrastructure process found in 18 CFR 388.113(g)(5) of the Commission’s regulations. To the extent that EEI’s information with, between, and by—(i) Federal, State, political subdivision, and argument indirectly relates to the separate voluntary sharing provisions found in § 388.113(f), tribal authorities . . .’’ It would be its argument does not persuade us to grant incongruous to read the FAST Act’s rehearing on that section for the same reasons as those provided above. For example, under reference to ‘‘voluntary sharing . . . by § 388.113(f), except in exigent circumstances, . . . Federal . . . authorities’’ not to submitters are provided notice prior to release of include voluntary sharing by the CEII and may submit comments. In the event of an exigency like a national security issue, the Commission of CEII in its possession. Second, the FAST Act did not direct the Commission will provide notice of the disclosure to the submitter of CEII as soon as practicable. Commission to curtail or eliminate the 18 EEI’s interpretation suggests that the established, pre-existing process for determination as to whether it is appropriate for the providing members of the public with Commission to share CEII should be entirely in the hands of the submitter. Such an approach is access to CEII, which is provided in 18 inconsistent with the FAST Act as it could limit the CFR 388.113(g)(5)(iii). Commission’s ability to share CEII. In any event, 12. Even before the FAST Act, the pursuant to § 388.113(d)(1)(iv), a submitter is Commission’s regulations included a provided notice of release of CEII under 18 CFR process whereby the Commission’s CEII 388.113(g)(5)(iii), and a submitter who disagrees of the Coordinator had the discretion to share, with the determination providing noticeinjunctive release of its CEII has the ability to seek sradovich on DSK3GMQ082PROD with RULES Request 9. EEI states that the Commission should reconsider its determination that CEII can be shared over the objections of submitters.13 EEI asserts that section 215A(d)(2)(D) of the FPA directs the Commission only to facilitate voluntary sharing ‘‘by and between’’ entities. EEI contends that the Commission’s ability to share information over a submitter’s objection, as provided in 18 CFR 388.113(g)(5)(iii), amounts to involuntary sharing not intended by the FAST Act and in violation of FPA section 215A(d)(6).14 EEI asserts that, by using section 215A(d)(2)(D) to authorize the Commission to provide CEII over the submitter’s objection, the Commission is using the FAST Act to ‘‘share’’ CEII in an involuntary manner. EEI states that its interpretation is consistent with Congress’ decision to make CEII exempt from mandatory disclosure under the Freedom of Information Act (FOIA).15 13 EEI Request at 7. 14 Id. 15 See 5 U.S.C. 552 as amended by the FOIA Improvement Act of 2016, Public Law 114–185, 130 Stat. 538 (2016). VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 relief in district court. 19 EEI Request at 7. 20 As to sharing of CEII by CEII recipients, under our NDAs, CEII recipients may only share CEII with other individuals covered by our NDA for the same information. PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 Before the FAST Act and under the revised regulations, entities remain free to share the CEII that they submitted to the Commission with others. 14. Finally, we disagree with EEI’s assertion that its interpretation of the FAST Act’s ‘‘voluntary sharing’’ provisions is consistent with Congress’ creation of a FOIA exemption for CEII.21 The Commission’s FOIA program and the voluntary sharing contemplated under the FAST Act serve different purposes, with the former serving to support government transparency 22 and the latter governing how certain sensitive information is identified, secured, and shared to support the security and resilience of critical energy infrastructure. We do not agree that the new FOIA exemption protecting against mandatory public disclosure of CEII in response to a FOIA request suggests that Congress also intended to prohibit any sharing of that CEII without the submitter’s consent. Rather, the regulations adopted in Order No. 833 struck an appropriate balance between the FAST Act’s provisions protecting CEII from public disclosure with the provisions providing that CEII may be voluntarily shared with certain third parties. Thus, while the FOIA exemption prevents the disclosure of CEII in response to a FOIA request, we disagree with EEI’s assertion that the exemption was intended to preclude the Commission from exercising its discretion to share CEII pursuant to the established procedures in 18 CFR 388.113(g)(5)(iii). B. Criteria for Responding to CEII Requests Order No. 833 15. In Order No. 833, the Commission concluded that the FAST Act does not require changes to the Commission’s existing process for accessing CEII.23 The Commission also decided to maintain its balancing approach when determining whether to provide CEII to individuals who demonstrated a need for access to CEII under an executed NDA.24 The Commission noted that a request for access to CEII is case specific to the unique facts and circumstances of each request and, therefore, declined to provide additional guidance and criteria about how it will respond to individual 21 EEI Request at 7–8. e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (‘‘The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.’’). 23 Order No. 833, 157 FERC ¶ 61,123 at P 144. 24 Id. P 143. 22 See, E:\FR\FM\30MYR1.SGM 30MYR1 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations CEII requests under 18 CFR 388.113(g)(5).25 Request 16. EEI asserts that the Commission erred by declining to provide or clarify the criteria that the Commission will use to determine whether a member of the public is eligible to obtain CEII from the Commission.26 EEI claims that such clarification will provide clear guidance to Commission staff about when a member of the public may receive CEII and afford a better understanding to submitters about the ‘‘benefits or risks involved in providing CEII to the Commission.’’ 27 EEI also contends that ‘‘criteria stating that the Commission will consider public safety benefits before releasing CEII to the public may provide CEII submitters with greater reasons to voluntarily provide CEII to the Commission.’’ 28 sradovich on DSK3GMQ082PROD with RULES Commission Determination 17. We grant clarification and deny rehearing of this issue. We continue to believe that the Commission has provided sufficient detail on the circumstances in which the Commission will share CEII.29 The CEII regulations enable ‘‘individuals with a valid or legitimate need to access certain sensitive energy infrastructure information’’ that would otherwise be exempt under FOIA.30 18. Since instituting the CEII process in 2003, the Commission has acquired significant experience in processing CEII requests. In particular, the Commission routinely processes CEII requests from, among others, consultants, academics, landowners, and public interest groups. In implementing the provisions of the FAST Act, the Commission is utilizing its vast experience in addressing the various interests of CEII requestors and submitters as well. 19. Furthermore, we disagree with EEI’s assertion that the Commission failed to provide any criteria that the CEII Coordinator will use to determine whether a member of the public is eligible to access CEII. As explained in Order No. 833, the Commission has 25 The Commission, however, outlined the information that an individual seeking access to CEII under 18 CFR 388.113(g)(5) must include in an accompanying statement of need. See id. 26 EEI Request at 6 (averring that nothing in § 388.113(g)(5)(iii) identifies any criteria that the Commission will use before disclosing CEII to a requester). 27 Id. at 9. 28 Id. 29 See, e.g., 18 CFR 388.113(f) (2017) (providing the procedures for voluntary sharing), § 388.113(g) (providing procedures for accessing CEII). 30 Order No. 833, 157 FERC ¶ 61,123 at P 3. VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 utilized a ‘‘balancing approach effectively in response to Critical Energy Infrastructure Information requests for almost fifteen years. The balancing approach has provided to individuals with a demonstrated need access to information subject to a NDA.’’ 31 Consistent with long-standing practice, § 388.113(g)(5)(iii) states that the ‘‘CEII Coordinator will balance the requester’s need for the information against the sensitivity of the information.’’ 20. Contrary to EEI’s assertion, in the NOPR and in Order No. 833, we provided clarification regarding the criteria for obtaining CEII by outlining information that a CEII requester must include in its statement of need.32 We also stated that a conclusory statement of need by a CEII requester will not suffice.33 Moreover, we note that a request for access to CEII is case specific to the unique facts and circumstances of each request. 21. In its filing, EEI provides one suggestion (i.e., ‘‘public safety benefits’’) concerning how the Commission can enhance the criteria to determine whether a member of the public is eligible to obtain CEII from the Commission.34 We clarify that public safety benefits are one criterion that the CEII Coordinator should consider, as part of the balancing approach described above, in determining whether to share CEII in a particular instance. Overall, we believe that our approach provides sufficient detail on the circumstances in which the Commission will share CEII, while also providing the CEII Coordinator with enough specificity and flexibility to respond to each individual request for CEII. C. Non-Disclosure Agreement Order No. 833 22. Order No. 833 included revisions to strengthen the CEII handling requirements for both Commission staff and external recipients. As part of those revisions, the Commission established minimum requirements for the NDAs that recipients of CEII must execute before receiving access to CEII. The Commission explained that the minimum requirements for an NDA are not exhaustive and do not preclude other requirements.35 Further, the Commission stated that additional provisions may be added to the NDA and submitters may request additional 24659 provisions.36 In response to NOPR comments, the Commission amended § 388.113(h)(2) to add a provision to require CEII recipients to promptly report all unauthorized disclosures of CEII to the Commission.37 Request 23. EEI states that the Commission should consider ‘‘modernizing the Commission’s CEII NDA even further to mitigate against the risk of a CEII recipient involuntarily sharing CEII with a hostile actor.’’ 38 EEI identifies one example of how the Commission may change the CEII NDA. While acknowledging the ‘‘incident response clause’’ in § 388.113(h)(2), EEI suggests that the clause could be changed to require the reporting of unauthorized disclosures that actually occurred or ‘‘those reasonably suspected to have occurred.’’ 39 Commission Determination 24. We grant clarification and deny rehearing on this issue. Order No. 833 explained that § 388.113(h)(2) only includes ‘‘‘minimum’ requirements for a NDA and is not intended to be exhaustive or preclude additional provisions, as needed.’’ 40 As the Commission stated in Order No. 833, under certain circumstances the Commission may add additional provisions to the NDA and submitters may request that additional provisions be added to the NDA.41 While we decline to make any changes to the minimum requirements for the NDA, the Commission reiterates that the CEII Coordinator may consider adding additional provisions to the NDA on a case by case basis. However, to the extent EEI seeks a specific change to the NDA or requests that the Commission take further comment on revisions to the NDA at this time, we deny those requests. EEI has not demonstrated that the NDA revisions that we have adopted, or the fact that we will entertain further changes to the NDA as appropriate, are unreasonable or arbitrary. D. Designation of CommissionGenerated Information Order No. 833 25. In Order No. 833, the Commission determined that for Commissiongenerated information, the CEII Coordinator, after consultation with the 36 Id. 31 Id. P 143. 32 18 CFR 388.113(g)(5)(i)(B). 33 Id. 34 EEI Request at 9. 35 Order No. 833, 157 FERC ¶ 61,123 at P 92. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 37 Id. P 93. Request at 10–11. 39 Id. at 10. 40 Order No. 833, 157 FERC ¶ 61,123 at P 92. 41 Id. P 92. 38 EEI E:\FR\FM\30MYR1.SGM 30MYR1 24660 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations appropriate Office Director, will determine whether the information is CEII.42 The Commission concluded that stakeholder participation in CEII designations of Commission-generated information is unnecessary because the Commission has the expertise and experience to make such determinations.43 The Commission also noted that in certain instances it would be inappropriate for stakeholders to be privy to Commission-generated information that potentially qualified as CEII.44 Finally, the Commission stated that an entity is not precluded from raising concerns with the CEII Coordinator when an entity believes that Commission-generated information contains CEII about its facility.45 Request 26. EEI requests that the Commission clarify the existing procedures or provide the anticipated procedure for stakeholder ‘‘notification of, and opportunity to comment on, potential disclosure or sharing of Commissiongenerated information.’’ 46 EEI asserts that the Commission erred by failing to provide a process for an entity to comment on the possible disclosure or sharing of Commission-generated CEII.47 EEI contends that the Commission may incorporate a submitter’s CEII in a Commissiongenerated CEII document that is released to a CEII requester without providing the submitter any opportunity to comment. 27. EEI also contends that the Commission could create a document that combines information that alone did not constitute CEII and was not submitted to the Commission as such, but that combined with other information could constitute CEII.48 EEI states that in that instance, the submitter would not have had an opportunity to mark the information as CEII.49 EEI maintains that, in these situations, it would be inconsistent for the Commission not to provide notice and an opportunity to comment.50 sradovich on DSK3GMQ082PROD with RULES Commission Determination 28. We grant clarification and deny rehearing on this issue. The FAST Act implicitly recognizes that the Commission has the expertise and experience to determine whether any 42 Id. P 59. 43 Id. P 60. 44 Id. 45 Id. P 61. 46 EEI Request at 6. 47 Id. 48 Id. at 13. 49 Id. 50 Id. at 13–14. VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 information, including Commissiongenerated information, is properly designated as CEII by vesting the Commission with the authority to designate information as CEII. The FAST Act does not require, and EEI identifies no provision in the FAST Act requiring, the Commission to provide notice and opportunity for public comment about the prospective release or sharing of Commission-generated CEII. Furthermore, the Commission is not persuaded that we should establish a requirement for stakeholder input when the Commission combines information not filed as CEII with other information and potentially creates CEII. 29. To the contrary, inherent differences between Commissiongenerated CEII and CEII from submitters, as well as practical considerations, warrant different procedures. As EEI acknowledges, there are circumstances in which it would be inappropriate for an outside entity to comment on the content of a nonpublic, Commission-generated CEII document. Nonetheless, EEI asks the Commission to develop a ‘‘consistent process’’ for stakeholder participation. We disagree and believe that crafting a broad notification requirement for each Commission-generated document that discusses CEII in some respect would be impractical and, as we noted in Order No. 833, often inappropriate.51 30. Therefore, EEI’s arguments do not persuade us that a formal, mandatory stakeholder process is needed to comment on the release or sharing of Commission-generated CEII. We, however, clarify that nothing in the FAST Act or the Commission’s CEII regulations prevents the CEII Coordinator from exercising discretion in an individual situation to solicit comments from a submitter of CEII or other information when evaluating whether to release a Commissiongenerated CEII document. We note that even if the Commission determines to release Commission-generated CEII, such a release would be pursuant to an NDA and the Commission’s protections against further unwarranted or prohibited disclosure. 51 Order No. 833, 157 FERC ¶ 61,123 at P 61. For example, Commission-generated documents may include other forms of non-public information such as pre-decisional, internal deliberations covered by the Deliberative Process Privilege. 5 U.S.C. 552(b)(5)(2017) (protecting from disclosure ‘‘intraagency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.’’); see Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); see also Environmental Protection Agency v. Mink, 410 U.S. 73, 87 (1973) (recognizing that ‘‘[i]t would be impossible to have any frank discussions of legal or policy matters in writing if all such writings were to be subjected to public scrutiny’’). PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E. DOE’s Criteria and Procedures for What Constitutes CEII Order No. 833 31. In Order No. 833, the Commission declined to revise the CEII regulations to identify specific designation criteria and CEII procedures for DOE.52 The Commission stated that the FAST Act does not compel DOE to make changes to its regulations and noted that nothing within the Commission’s regulations limits DOE’s ability to designate CEII in accordance with the FAST Act.53 Request 32. EEI asserts that the Commission erred in declining to provide or clarify the applicability of any procedure or process for stakeholders regarding DOE designations of its information as CEII.54 Specifically, EEI requests that the Commission confirm that DOE determinations regarding CEII will be conducted pursuant to the Commission’s CEII regulations.55 EEI further requests that if that is not the case, the Commission should clarify that position, so EEI can seek further clarification from DOE as to the applicable procedures and criteria DOE intends to use for such determinations.56 Commission Determination 33. We deny rehearing on this issue. In Order No. 833, the Commission declined to revise our regulations to identify specific designation criteria and CEII procedures that would be required for DOE.57 EEI’s argument here does not persuade us to change that determination. Specifically, section 215A(d)(3) of the FAST Act provides that information ‘‘may be designated’’ by the Commission and DOE pursuant to the criteria and procedures that the Commission establishes.58 As explained in Order No. 833, nothing within the FAST Act compels DOE to make changes to its regulations, and nothing in the Commission’s regulations limits DOE’s ability to designate information in accordance with the FAST Act.59 The Commission Orders EEI’s request for clarification is hereby granted in part and EEI’s request 52 Order No. 833, 157 FERC ¶ 61,123 at P 39. 53 Id. 54 EEI 55 Id. Request at 7. at 16. 56 Id. 57 Order No. 833, 157 FERC ¶ 61,123 at P 39. Act, Public Law 114–94, section 61,003, 129 Stat. 1312, 1776. 59 Order No. 833, 157 FERC ¶ 61,123 at P 39 (citing NOPR, 155 FERC ¶ 61,278 at P 16 n.12). 58 FAST E:\FR\FM\30MYR1.SGM 30MYR1 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations for rehearing is denied, as discussed in the body of this order. By the Commission. Issued: May 17, 2018. Nathaniel J. Davis, Sr., Deputy Secretary. [FR Doc. 2018–11537 Filed 5–29–18; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 Income Taxes CFR Correction In Title 26 of the Code of Federal Regulations, Part 1 (§§ 1.140 to 1.169), revised as of April 1, 2018, on page 88, in § 1.148–1, paragraph (e)(3) is reinstated to read as follows: ■ § 1.148–1 Definitions and elections. * * * * * (e) * * * (3) Certain hedges. Investment-type property also includes the investment element of a contract that is a hedge (within the meaning of § 1.148– 4(h)(2)(i)(A)) and that contains a significant investment element because a payment by the issuer relates to a conditional or unconditional obligation by the hedge provider to make a payment on a later date. See § 1.148– 4(h)(2)(ii) relating to hedges with a significant investment element. * * * * * [FR Doc. 2018–11690 Filed 5–29–18; 8:45 am] BILLING CODE 1301–00–D ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 sradovich on DSK3GMQ082PROD with RULES Approval and Promulgation of Air Quality Implementation Plans; New Jersey; Infrastructure Requirements for the 2008 Lead, 2008 Ozone, 2010 Nitrogen Dioxide, 2010 Sulfur Dioxide, 2011 Carbon Monoxide, 2006 PM10, 2012 PM2.5, 1997 Ozone, and the 1997 and 2006 PM2.5 National Ambient Air Quality Standards Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is approving elements of VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 FOR FURTHER INFORMATION CONTACT: Anthony (Ted) Gardella, Environmental Protection Agency, 290 Broadway, New York, New York 10007–1866, at (212) 637–3892, or by email at Gardella.Anthony@epa.gov. SUPPLEMENTARY INFORMATION: The SUPPLEMENTARY INFORMATION section is arranged as follows: Table of Contents [EPA–R02–OAR–2016–0625, FRL–9978– 24—Region 2] SUMMARY: New Jersey’s State Implementation Plan (SIP) revision submittal regarding the infrastructure requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 lead, 2008 ozone, 2010 nitrogen dioxide, 2010 sulfur dioxide, 2011 carbon monoxide, 2006 particulate matter of 10 microns or less (PM10), and 2012 particulate matter of 2.5 microns or less (PM2.5) National Ambient Air Quality Standards (NAAQS). The EPA is also approving three infrastructure requirements of the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS. The infrastructure requirements are designed to ensure that the structural components of each state’s air quality management program are adequate to meet the state’s responsibilities under the CAA. DATES: This final rule is effective on June 29, 2018. ADDRESSES: The EPA has established a docket for this action under Docket ID Number EPA–R02–OAR–2016–0625. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http:// www.regulations.gov. I. What is the background for this action? II. What comments were received in response to the EPA’s proposed action? III. What action is the EPA taking? IV. Incororation by Reference V. Statutory and Executive Order Reviews I. What is the background for this action? Under sections 110(a)(1) and (2) of the Clean Air Act (CAA), each state is required to submit a State Implementation Plan (SIP) that provides for the implementation, maintenance, and enforcement of a revised primary or secondary National Ambient Air Quality Standards (NAAQS or standard). CAA sections 110(a)(1) and (2) require each PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 24661 state to make a new SIP submission within three years after the EPA promulgates a new or revised NAAQS for approval into the existing federallyapproved SIP to assure that the SIP meets the applicable requirements for such new and revised NAAQS. On March 1, 2018 (83 FR 8818), the EPA published a Notice of Proposed Rulemaking (NPR) in the Federal Register for the State of New Jersey. The NPR proposed to approve elements of the State of New Jersey’s Infrastructure SIP submission, dated October 17, 2014, and as supplemented on March 15, 2017, as meeting the CAA section 110(a) infrastructure requirements for the following NAAQS: 2008 ozone, 2008 lead, 2010 nitrogen dioxide (NO2), 2010 sulfur dioxide (SO2), 2011 carbon monoxide (CO), 2006 particulate matter of 10 microns or less (PM10), and 2012 particulate matter of 2.5 microns or less (PM2.5). Although not specifically required by 110(a)(1) since neither NAAQS was new or revised,1 the SIP submission included infrastructure requirements for the 2006 PM10 and 2011 CO NAAQS. As explained in the NPR, the State has the necessary infrastructure, resources and general authority to implement the 2008 ozone, 2008 lead, 2010 NO2, 2010 SO2, 2011 CO, 2006 PM10, and 2012 PM2.5 NAAQS, except where specifically noted. The EPA also proposed to approve three CAA section 110(a) infrastructure requirements for the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS that were conditionally approved by the EPA on June 14, 2013 (78 FR 35764). New Jersey’s response to the conditional approval was not submitted to EPA within one year, but was submitted approximately three months late, and supplemented on March 15, 2017, so the conditional approval is treated as a disapproval. The EPA also proposed to approve New Jersey’s October 17, 2014 submittal, as supplemented on March 15, 2017, for the 1997 ozone and the 1997 and 2006 PM2.5 NAAQS. Other detailed information relevant to this action on New Jersey’s infrastructure SIP submission, the requirements of infrastructure SIPs and the rationale for the EPA’s proposed action are explained in the NPR and the associated Technical Support Document (TSD) in the docket and are not restated here. 1 EPA notes that, when promulgated, the 2006 24 hour PM10 NAAQS and the 2011 primary CO NAAQS were neither ‘‘new’’ nor ‘‘revised’’ NAAQS—they merely retained, without revision, prior NAAQS for those pollutants. Accordingly, promulgation of these NAAQS did not trigger a new obligation for New Jersey to make infrastructure SIP submissions. E:\FR\FM\30MYR1.SGM 30MYR1

Agencies

[Federal Register Volume 83, Number 104 (Wednesday, May 30, 2018)]
[Rules and Regulations]
[Pages 24656-24661]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-11537]


=======================================================================
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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 375 and 388

[Docket No. RM16-15-001; Order No. 833-A]


FAST Act Section 61003--Critical Electric Infrastructure Security 
and Critical Energy Infrastructure Information

AGENCY:  Federal Energy Regulatory Commission.

ACTION:  Order on clarification and rehearing.

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[[Page 24657]]

SUMMARY:  The Federal Energy Regulatory Commission (Commission) in this 
order on clarification and rehearing grants in part Edison Electric 
Institute's request for clarification or, in the alternative, rehearing 
of Order No. 833, and denies rehearing of that order, which amends the 
Commission's regulations to implement provisions of the Fixing 
America's Surface Transportation Act pertaining to the designation, 
protection, and sharing of Critical Energy/Electric Infrastructure 
Information.

DATES:  This order is effective July 30, 2018.

FOR FURTHER INFORMATION CONTACT: 
Nneka Frye, Office of the General Counsel, Federal Energy Regulatory 
Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6029, 
[email protected]
Christopher MacFarlane, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 
502-6761, [email protected]
Mark Hershfield, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 
502-8597, [email protected]

SUPPLEMENTARY INFORMATION: 

Order No. 833-A

Order on Clarification and Rehearing

(Issued May 17, 2018)
    1. In Order No. 833, the Commission amended its regulations to 
implement provisions of the Fixing America's Surface Transportation Act 
(FAST Act) \1\ related to Critical Electric Infrastructure 
Information.\2\ In addition, Order No. 833 revised the Commission's 
Critical Energy Infrastructure Information regulations.\3\ Edison 
Electric Institute (EEI) requested clarification or, in the 
alternative, rehearing of Order No. 833. For the reasons discussed 
below, we grant EEI's request for clarification in part and deny 
rehearing.
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    \1\ Fixing America's Surface Transportation Act, Public Law 114-
94, section 61,003, 129 Stat. 1312, 1773-1779 (2015) (codified at 16 
U.S.C. 824o-1).
    \2\ Regulations Implementing FAST Act Section 61003--Critical 
Electric Infrastructure Security and Amending Critical Energy 
Infrastructure Information, Availability of Certain North American 
Electric Reliability Corporation Databases to the Commission, Order 
No. 833, 157 FERC ] 61,123 (2016), see 81 FR 93732 (Dec. 21, 2016).
    \3\ Id.
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I. Order No. 833

    2. On December 4, 2015, the FAST Act was signed into law. The FAST 
Act, inter alia, added section 215A to the Federal Power Act (FPA) to 
improve the security and resilience of energy infrastructure in the 
face of emergencies. The FAST Act directed the Commission to issue 
regulations that provide: (1) The criteria and procedures for 
designating information as Critical Electric Infrastructure 
Information; (2) a specific prohibition on unauthorized disclosure of 
Critical Electric Infrastructure Information; (3) sanctions for the 
knowing and willful unauthorized disclosure of Critical Electric 
Infrastructure Information by Commission and Department of Energy (DOE) 
employees; and (4) a process for voluntary sharing of Critical Electric 
Infrastructure Information.\4\
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    \4\ See generally FAST Act, Public Law 114-94, section 61,003, 
129 Stat. 1312, 1776.
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    3. On June 16, 2016, the Commission issued a Notice of Proposed 
Rulemaking (NOPR) to amend its regulations to implement the provisions 
of the FAST Act pertaining to the designation, protection, and sharing 
of Critical Electric Infrastructure Information and to revise the 
existing Critical Energy Infrastructure Information regulations.\5\ The 
NOPR proposed that the amended procedures be referred to as the 
Critical Energy/Electric Infrastructure Information (CEII) 
Procedures.\6\ In response to the NOPR, nineteen entities filed 
comments and two entities filed reply comments.
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    \5\ Regulations Implementing FAST Act Section 61003--Critical 
Electric Infrastructure Security and Amending Critical Energy 
Infrastructure Information, 155 FERC ] 61,278 (2016) (NOPR), see 81 
FR 43557 (July 5, 2016).
    \6\ Id.
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    4. On November 17, 2016, the Commission issued Order No. 833, which 
amended the Commission's regulations at 18 CFR 375.309, 375.313, 
388.112 and 388.113 to implement the FAST Act provisions that pertain 
to the designation, protection and sharing of Critical Electric 
Infrastructure Information. Order No. 833 also revised the existing 
Critical Energy Infrastructure Information regulations. The Commission 
determined that the amended regulations comply with the requirements of 
the FAST Act and better ensure the secure treatment of CEII.\7\
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    \7\ See generally Order No. 833, 157 FERC ] 61,123.
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II. Discussion

    5. EEI asserts that the Commission either erred or should 
reconsider five aspects of Order No. 833.\8\ As discussed below, we 
grant EEI's request for clarification in part and deny EEI's request 
for rehearing.
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    \8\ EEI Request at 6-7.
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A. Requests for Access to CEII

Order No. 833
    6. The FAST Act required the Commission, taking into account 
standards of the Electric Reliability Organization, to facilitate 
voluntary sharing of Critical Electric Infrastructure Information. The 
statute directed the Commission to facilitate voluntary sharing with, 
between, and by Federal, State, political subdivision, and tribal 
authorities; the Electric Reliability Organization; regional entities; 
information sharing and analysis centers established pursuant to 
Presidential Decision Directive 63; owners, operators, and users of 
critical electric infrastructure in the United States; and other 
entities determined appropriate by the Commission.\9\
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    \9\ FAST Act, Public Law 114-94, section 61,003, 129 Stat. 1312, 
1776.
---------------------------------------------------------------------------

    7. In Order No. 833, the Commission established procedures in its 
regulations for providing CEII to third parties. Specifically, in Sec.  
388.113(f), the Commission established a process for the Commission to 
voluntarily share CEII when there is a need to ensure energy 
infrastructure is protected. Separately, in Sec.  388.113(g), the 
Commission revised its long-standing procedures for members of the 
public to request access to CEII by requiring a statement demonstrating 
a valid and legitimate need for the information.\10\ Both processes 
contain procedures to notify submitters of the CEII of the Commission's 
prospective sharing of its CEII as well as a requirement that 
prospective CEII recipients execute Non-Disclosure Agreements (NDA).
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    \10\ The CEII request procedures found in Sec.  388.113(g) were 
first established under the Commission's Critical Energy 
Infrastructure Information regulations in 2003. See Critical Energy 
Infrastructure Information, Order No. 630, FERC Stats. & Regs. ] 
31,140, order on reh'g, Order No. 630-A, FERC Stats. & Regs. ] 
31,147 (2003).
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    8. The Commission also stated that the procedures do not impose a 
sharing requirement on entities; instead, the provisions allow the 
Commission to exercise discretion to share CEII that has already been 
submitted to, or generated by, the Commission.\11\ Further, the 
Commission determined that even if the Commission's voluntary sharing 
of information were viewed as the same as a third-party sharing it, the 
Commission must balance its obligation to disclose information as 
necessary to carry out the Commission's jurisdictional responsibilities 
against an entity's preference not to have information disclosed.\12\
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    \11\ Order No. 833, 157 FERC ] 61,123 at P 125.
    \12\ Id. P 126.

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[[Page 24658]]

Request
    9. EEI states that the Commission should reconsider its 
determination that CEII can be shared over the objections of 
submitters.\13\ EEI asserts that section 215A(d)(2)(D) of the FPA 
directs the Commission only to facilitate voluntary sharing ``by and 
between'' entities. EEI contends that the Commission's ability to share 
information over a submitter's objection, as provided in 18 CFR 
388.113(g)(5)(iii), amounts to involuntary sharing not intended by the 
FAST Act and in violation of FPA section 215A(d)(6).\14\ EEI asserts 
that, by using section 215A(d)(2)(D) to authorize the Commission to 
provide CEII over the submitter's objection, the Commission is using 
the FAST Act to ``share'' CEII in an involuntary manner. EEI states 
that its interpretation is consistent with Congress' decision to make 
CEII exempt from mandatory disclosure under the Freedom of Information 
Act (FOIA).\15\
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    \13\ EEI Request at 7.
    \14\ Id.
    \15\ See 5 U.S.C. 552 as amended by the FOIA Improvement Act of 
2016, Public Law 114-185, 130 Stat. 538 (2016).
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Commission Determination
    10. We deny clarification and rehearing of this issue. We disagree 
with EEI's contention that the FAST Act only directs the voluntary 
sharing of CEII ``by and between'' entities or that the Commission's 
release of information over a submitter's objections constitutes 
``involuntary'' sharing of such information. EEI misconstrues FPA 
section 215A(d)(2)(D) to argue that the statute's directives regarding 
voluntary sharing do not include voluntary sharing of CEII by the 
Commission. Such a reading is inconsistent with the FAST Act in two 
respects.
    11. First, FPA section 215A(d)(2)(D)(i) provides that the 
Commission's regulations should ``facilitate voluntary sharing of 
critical electric infrastructure information with, between, and by--(i) 
Federal, State, political subdivision, and tribal authorities . . .'' 
It would be incongruous to read the FAST Act's reference to ``voluntary 
sharing . . . by . . . Federal . . . authorities'' not to include 
voluntary sharing by the Commission of CEII in its possession. Second, 
the FAST Act did not direct the Commission to curtail or eliminate the 
established, pre-existing process for providing members of the public 
with access to CEII, which is provided in 18 CFR 388.113(g)(5)(iii).
    12. Even before the FAST Act, the Commission's regulations included 
a process whereby the Commission's CEII Coordinator had the discretion 
to share, in certain circumstances, CEII that was submitted to, or 
generated by, the Commission.\16\ Under both the prior regulations and 
the revised regulations at 18 CFR 388.113(d)(1)(vi), a submitter is, as 
EEI acknowledges, provided an opportunity to comment on the potential 
disclosure of its CEII.\17\ Prior to any determination to release CEII 
to a requester, pursuant to 18 CFR 388.113(g)(5)(iii), the CEII 
Coordinator will take into consideration any objections and ``will 
balance the requester's need for the information against the 
sensitivity of the information.'' Other than characterizing a 
determination by the CEII Coordinator to ultimately release CEII over 
an objection as ``involuntary sharing,'' EEI does not propose any 
change to the Commission's long-standing approach nor does EEI 
demonstrate that the FAST Act is intended to restrict the Commission 
from sharing CEII, under an NDA, with third parties that have a valid 
and legitimate need for the material.\18\
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    \16\ Order No. 833, 157 FERC ] 61,123 at P 125.
    \17\ EEI's argument pertains to the CEII request process found 
in 18 CFR 388.113(g)(5) of the Commission's regulations. To the 
extent that EEI's argument indirectly relates to the separate 
voluntary sharing provisions found in Sec.  388.113(f), its argument 
does not persuade us to grant rehearing on that section for the same 
reasons as those provided above. For example, under Sec.  
388.113(f), except in exigent circumstances, submitters are provided 
notice prior to release of CEII and may submit comments. In the 
event of an exigency like a national security issue, the Commission 
will provide notice of the disclosure to the submitter of CEII as 
soon as practicable.
    \18\ EEI's interpretation suggests that the determination as to 
whether it is appropriate for the Commission to share CEII should be 
entirely in the hands of the submitter. Such an approach is 
inconsistent with the FAST Act as it could limit the Commission's 
ability to share CEII. In any event, pursuant to Sec.  
388.113(d)(1)(iv), a submitter is provided notice of release of CEII 
under 18 CFR 388.113(g)(5)(iii), and a submitter who disagrees with 
the determination providing notice of the release of its CEII has 
the ability to seek injunctive relief in district court.
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    13. In addition, our reading of the FAST Act is consistent with 
EEI's statement that ``[u]nder the plain meaning of the FAST Act 
statute, the term `voluntary' means the Commission should implement an 
information sharing process that allows owners to share information 
intentionally and freely.'' \19\ The new voluntary sharing provisions, 
at 18 CFR 388.113(f) of the Commission's CEII regulations, only govern 
the process by which the Commission will voluntarily share CEII that 
has been submitted to the Commission or generated by staff.\20\ Before 
the FAST Act and under the revised regulations, entities remain free to 
share the CEII that they submitted to the Commission with others.
---------------------------------------------------------------------------

    \19\ EEI Request at 7.
    \20\ As to sharing of CEII by CEII recipients, under our NDAs, 
CEII recipients may only share CEII with other individuals covered 
by our NDA for the same information.
---------------------------------------------------------------------------

    14. Finally, we disagree with EEI's assertion that its 
interpretation of the FAST Act's ``voluntary sharing'' provisions is 
consistent with Congress' creation of a FOIA exemption for CEII.\21\ 
The Commission's FOIA program and the voluntary sharing contemplated 
under the FAST Act serve different purposes, with the former serving to 
support government transparency \22\ and the latter governing how 
certain sensitive information is identified, secured, and shared to 
support the security and resilience of critical energy infrastructure. 
We do not agree that the new FOIA exemption protecting against 
mandatory public disclosure of CEII in response to a FOIA request 
suggests that Congress also intended to prohibit any sharing of that 
CEII without the submitter's consent. Rather, the regulations adopted 
in Order No. 833 struck an appropriate balance between the FAST Act's 
provisions protecting CEII from public disclosure with the provisions 
providing that CEII may be voluntarily shared with certain third 
parties. Thus, while the FOIA exemption prevents the disclosure of CEII 
in response to a FOIA request, we disagree with EEI's assertion that 
the exemption was intended to preclude the Commission from exercising 
its discretion to share CEII pursuant to the established procedures in 
18 CFR 388.113(g)(5)(iii).
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    \21\ EEI Request at 7-8.
    \22\ See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 
242 (1978) (``The basic purpose of FOIA is to ensure an informed 
citizenry, vital to the functioning of a democratic society, needed 
to check against corruption and to hold the governors accountable to 
the governed.'').
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B. Criteria for Responding to CEII Requests

Order No. 833
    15. In Order No. 833, the Commission concluded that the FAST Act 
does not require changes to the Commission's existing process for 
accessing CEII.\23\ The Commission also decided to maintain its 
balancing approach when determining whether to provide CEII to 
individuals who demonstrated a need for access to CEII under an 
executed NDA.\24\ The Commission noted that a request for access to 
CEII is case specific to the unique facts and circumstances of each 
request and, therefore, declined to provide additional guidance and 
criteria about how it will respond to individual

[[Page 24659]]

CEII requests under 18 CFR 388.113(g)(5).\25\
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    \23\ Order No. 833, 157 FERC ] 61,123 at P 144.
    \24\ Id. P 143.
    \25\ The Commission, however, outlined the information that an 
individual seeking access to CEII under 18 CFR 388.113(g)(5) must 
include in an accompanying statement of need. See id.
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Request
    16. EEI asserts that the Commission erred by declining to provide 
or clarify the criteria that the Commission will use to determine 
whether a member of the public is eligible to obtain CEII from the 
Commission.\26\ EEI claims that such clarification will provide clear 
guidance to Commission staff about when a member of the public may 
receive CEII and afford a better understanding to submitters about the 
``benefits or risks involved in providing CEII to the Commission.'' 
\27\ EEI also contends that ``criteria stating that the Commission will 
consider public safety benefits before releasing CEII to the public may 
provide CEII submitters with greater reasons to voluntarily provide 
CEII to the Commission.'' \28\
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    \26\ EEI Request at 6 (averring that nothing in Sec.  
388.113(g)(5)(iii) identifies any criteria that the Commission will 
use before disclosing CEII to a requester).
    \27\ Id. at 9.
    \28\ Id.
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Commission Determination
    17. We grant clarification and deny rehearing of this issue. We 
continue to believe that the Commission has provided sufficient detail 
on the circumstances in which the Commission will share CEII.\29\ The 
CEII regulations enable ``individuals with a valid or legitimate need 
to access certain sensitive energy infrastructure information'' that 
would otherwise be exempt under FOIA.\30\
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    \29\ See, e.g., 18 CFR 388.113(f) (2017) (providing the 
procedures for voluntary sharing), Sec.  388.113(g) (providing 
procedures for accessing CEII).
    \30\ Order No. 833, 157 FERC ] 61,123 at P 3.
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    18. Since instituting the CEII process in 2003, the Commission has 
acquired significant experience in processing CEII requests. In 
particular, the Commission routinely processes CEII requests from, 
among others, consultants, academics, landowners, and public interest 
groups. In implementing the provisions of the FAST Act, the Commission 
is utilizing its vast experience in addressing the various interests of 
CEII requestors and submitters as well.
    19. Furthermore, we disagree with EEI's assertion that the 
Commission failed to provide any criteria that the CEII Coordinator 
will use to determine whether a member of the public is eligible to 
access CEII. As explained in Order No. 833, the Commission has utilized 
a ``balancing approach effectively in response to Critical Energy 
Infrastructure Information requests for almost fifteen years. The 
balancing approach has provided to individuals with a demonstrated need 
access to information subject to a NDA.'' \31\ Consistent with long-
standing practice, Sec.  388.113(g)(5)(iii) states that the ``CEII 
Coordinator will balance the requester's need for the information 
against the sensitivity of the information.''
---------------------------------------------------------------------------

    \31\ Id. P 143.
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    20. Contrary to EEI's assertion, in the NOPR and in Order No. 833, 
we provided clarification regarding the criteria for obtaining CEII by 
outlining information that a CEII requester must include in its 
statement of need.\32\ We also stated that a conclusory statement of 
need by a CEII requester will not suffice.\33\ Moreover, we note that a 
request for access to CEII is case specific to the unique facts and 
circumstances of each request.
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    \32\ 18 CFR 388.113(g)(5)(i)(B).
    \33\ Id.
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    21. In its filing, EEI provides one suggestion (i.e., ``public 
safety benefits'') concerning how the Commission can enhance the 
criteria to determine whether a member of the public is eligible to 
obtain CEII from the Commission.\34\ We clarify that public safety 
benefits are one criterion that the CEII Coordinator should consider, 
as part of the balancing approach described above, in determining 
whether to share CEII in a particular instance. Overall, we believe 
that our approach provides sufficient detail on the circumstances in 
which the Commission will share CEII, while also providing the CEII 
Coordinator with enough specificity and flexibility to respond to each 
individual request for CEII.
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    \34\ EEI Request at 9.
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C. Non-Disclosure Agreement

Order No. 833
    22. Order No. 833 included revisions to strengthen the CEII 
handling requirements for both Commission staff and external 
recipients. As part of those revisions, the Commission established 
minimum requirements for the NDAs that recipients of CEII must execute 
before receiving access to CEII. The Commission explained that the 
minimum requirements for an NDA are not exhaustive and do not preclude 
other requirements.\35\ Further, the Commission stated that additional 
provisions may be added to the NDA and submitters may request 
additional provisions.\36\ In response to NOPR comments, the Commission 
amended Sec.  388.113(h)(2) to add a provision to require CEII 
recipients to promptly report all unauthorized disclosures of CEII to 
the Commission.\37\
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    \35\ Order No. 833, 157 FERC ] 61,123 at P 92.
    \36\ Id.
    \37\ Id. P 93.
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Request
    23. EEI states that the Commission should consider ``modernizing 
the Commission's CEII NDA even further to mitigate against the risk of 
a CEII recipient involuntarily sharing CEII with a hostile actor.'' 
\38\ EEI identifies one example of how the Commission may change the 
CEII NDA. While acknowledging the ``incident response clause'' in Sec.  
388.113(h)(2), EEI suggests that the clause could be changed to require 
the reporting of unauthorized disclosures that actually occurred or 
``those reasonably suspected to have occurred.'' \39\
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    \38\ EEI Request at 10-11.
    \39\ Id. at 10.
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Commission Determination
    24. We grant clarification and deny rehearing on this issue. Order 
No. 833 explained that Sec.  388.113(h)(2) only includes ```minimum' 
requirements for a NDA and is not intended to be exhaustive or preclude 
additional provisions, as needed.'' \40\ As the Commission stated in 
Order No. 833, under certain circumstances the Commission may add 
additional provisions to the NDA and submitters may request that 
additional provisions be added to the NDA.\41\ While we decline to make 
any changes to the minimum requirements for the NDA, the Commission 
reiterates that the CEII Coordinator may consider adding additional 
provisions to the NDA on a case by case basis. However, to the extent 
EEI seeks a specific change to the NDA or requests that the Commission 
take further comment on revisions to the NDA at this time, we deny 
those requests. EEI has not demonstrated that the NDA revisions that we 
have adopted, or the fact that we will entertain further changes to the 
NDA as appropriate, are unreasonable or arbitrary.
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    \40\ Order No. 833, 157 FERC ] 61,123 at P 92.
    \41\ Id. P 92.
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D. Designation of Commission-Generated Information

Order No. 833
    25. In Order No. 833, the Commission determined that for 
Commission-generated information, the CEII Coordinator, after 
consultation with the

[[Page 24660]]

appropriate Office Director, will determine whether the information is 
CEII.\42\ The Commission concluded that stakeholder participation in 
CEII designations of Commission-generated information is unnecessary 
because the Commission has the expertise and experience to make such 
determinations.\43\ The Commission also noted that in certain instances 
it would be inappropriate for stakeholders to be privy to Commission-
generated information that potentially qualified as CEII.\44\ Finally, 
the Commission stated that an entity is not precluded from raising 
concerns with the CEII Coordinator when an entity believes that 
Commission-generated information contains CEII about its facility.\45\
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    \42\ Id. P 59.
    \43\ Id. P 60.
    \44\ Id.
    \45\ Id. P 61.
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Request
    26. EEI requests that the Commission clarify the existing 
procedures or provide the anticipated procedure for stakeholder 
``notification of, and opportunity to comment on, potential disclosure 
or sharing of Commission-generated information.'' \46\ EEI asserts that 
the Commission erred by failing to provide a process for an entity to 
comment on the possible disclosure or sharing of Commission-generated 
CEII.\47\ EEI contends that the Commission may incorporate a 
submitter's CEII in a Commission-generated CEII document that is 
released to a CEII requester without providing the submitter any 
opportunity to comment.
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    \46\ EEI Request at 6.
    \47\ Id.
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    27. EEI also contends that the Commission could create a document 
that combines information that alone did not constitute CEII and was 
not submitted to the Commission as such, but that combined with other 
information could constitute CEII.\48\ EEI states that in that 
instance, the submitter would not have had an opportunity to mark the 
information as CEII.\49\ EEI maintains that, in these situations, it 
would be inconsistent for the Commission not to provide notice and an 
opportunity to comment.\50\
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    \48\ Id. at 13.
    \49\ Id.
    \50\ Id. at 13-14.
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Commission Determination
    28. We grant clarification and deny rehearing on this issue. The 
FAST Act implicitly recognizes that the Commission has the expertise 
and experience to determine whether any information, including 
Commission-generated information, is properly designated as CEII by 
vesting the Commission with the authority to designate information as 
CEII. The FAST Act does not require, and EEI identifies no provision in 
the FAST Act requiring, the Commission to provide notice and 
opportunity for public comment about the prospective release or sharing 
of Commission-generated CEII. Furthermore, the Commission is not 
persuaded that we should establish a requirement for stakeholder input 
when the Commission combines information not filed as CEII with other 
information and potentially creates CEII.
    29. To the contrary, inherent differences between Commission-
generated CEII and CEII from submitters, as well as practical 
considerations, warrant different procedures. As EEI acknowledges, 
there are circumstances in which it would be inappropriate for an 
outside entity to comment on the content of a non-public, Commission-
generated CEII document. Nonetheless, EEI asks the Commission to 
develop a ``consistent process'' for stakeholder participation. We 
disagree and believe that crafting a broad notification requirement for 
each Commission-generated document that discusses CEII in some respect 
would be impractical and, as we noted in Order No. 833, often 
inappropriate.\51\
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    \51\ Order No. 833, 157 FERC ] 61,123 at P 61. For example, 
Commission-generated documents may include other forms of non-public 
information such as pre-decisional, internal deliberations covered 
by the Deliberative Process Privilege. 5 U.S.C. 552(b)(5)(2017) 
(protecting from disclosure ``intra-agency memoranda or letters 
which would not be available by law to a party other than an agency 
in litigation with the agency.''); see Russell v. Dep't of the Air 
Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); see also Environmental 
Protection Agency v. Mink, 410 U.S. 73, 87 (1973) (recognizing that 
``[i]t would be impossible to have any frank discussions of legal or 
policy matters in writing if all such writings were to be subjected 
to public scrutiny'').
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    30. Therefore, EEI's arguments do not persuade us that a formal, 
mandatory stakeholder process is needed to comment on the release or 
sharing of Commission-generated CEII. We, however, clarify that nothing 
in the FAST Act or the Commission's CEII regulations prevents the CEII 
Coordinator from exercising discretion in an individual situation to 
solicit comments from a submitter of CEII or other information when 
evaluating whether to release a Commission-generated CEII document. We 
note that even if the Commission determines to release Commission-
generated CEII, such a release would be pursuant to an NDA and the 
Commission's protections against further unwarranted or prohibited 
disclosure.

E. DOE's Criteria and Procedures for What Constitutes CEII

Order No. 833
    31. In Order No. 833, the Commission declined to revise the CEII 
regulations to identify specific designation criteria and CEII 
procedures for DOE.\52\ The Commission stated that the FAST Act does 
not compel DOE to make changes to its regulations and noted that 
nothing within the Commission's regulations limits DOE's ability to 
designate CEII in accordance with the FAST Act.\53\
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    \52\ Order No. 833, 157 FERC ] 61,123 at P 39.
    \53\ Id.
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Request
    32. EEI asserts that the Commission erred in declining to provide 
or clarify the applicability of any procedure or process for 
stakeholders regarding DOE designations of its information as CEII.\54\ 
Specifically, EEI requests that the Commission confirm that DOE 
determinations regarding CEII will be conducted pursuant to the 
Commission's CEII regulations.\55\ EEI further requests that if that is 
not the case, the Commission should clarify that position, so EEI can 
seek further clarification from DOE as to the applicable procedures and 
criteria DOE intends to use for such determinations.\56\
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    \54\ EEI Request at 7.
    \55\ Id. at 16.
    \56\ Id.
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Commission Determination
    33. We deny rehearing on this issue. In Order No. 833, the 
Commission declined to revise our regulations to identify specific 
designation criteria and CEII procedures that would be required for 
DOE.\57\ EEI's argument here does not persuade us to change that 
determination. Specifically, section 215A(d)(3) of the FAST Act 
provides that information ``may be designated'' by the Commission and 
DOE pursuant to the criteria and procedures that the Commission 
establishes.\58\ As explained in Order No. 833, nothing within the FAST 
Act compels DOE to make changes to its regulations, and nothing in the 
Commission's regulations limits DOE's ability to designate information 
in accordance with the FAST Act.\59\
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    \57\ Order No. 833, 157 FERC ] 61,123 at P 39.
    \58\ FAST Act, Public Law 114-94, section 61,003, 129 Stat. 
1312, 1776.
    \59\ Order No. 833, 157 FERC ] 61,123 at P 39 (citing NOPR, 155 
FERC ] 61,278 at P 16 n.12).
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The Commission Orders
    EEI's request for clarification is hereby granted in part and EEI's 
request

[[Page 24661]]

for rehearing is denied, as discussed in the body of this order.

    By the Commission.

    Issued: May 17, 2018.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2018-11537 Filed 5-29-18; 8:45 am]
 BILLING CODE 6717-01-P