Critical Electric Infrastructure Information; New Administrative Procedures, 54268-54278 [2018-23459]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 83, Number 209 (Monday, October 29, 2018)]
[Proposed Rules]
[Pages 54268-54278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23459]


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DEPARTMENT OF ENERGY

10 CFR Part 1004

RIN 1901-AB44


Critical Electric Infrastructure Information; New Administrative 
Procedures

AGENCY: Office of Electricity, U.S. Department of Energy.

ACTION: Notice of proposed rulemaking and opportunity for comment.

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SUMMARY: The Department of Energy (DOE or Department) publishes a 
proposed rule for public comment to implement DOE's critical electric 
infrastructure information (CEII) designation authority under the 
Federal Power Act. The proposed administrative procedures are intended 
to ensure that stakeholders and the public understand how the 
Department would designate, protect, and share CEII under the Federal 
Power Act.

DATES: Public comment on this proposed rule will be accepted until 
December 28, 2018.

ADDRESSES: You may submit comments, identified by RIN 1901-AB44, by any 
of the following methods:
    1. Federal eRulemaking Portal: Follow the instructions for 
submitting comments on the Federal eRulemaking Portal at https://www.regulations.gov.
    2. Email: Send email to [email protected]. Include RIN 1901-AB44 in 
the subject line of the email. Please include the full body of your 
comments in the text of the message or as an attachment.
    3. Mail: Address postal mail to U.S. Department of Energy, Office 
of Electricity, Mailstop OE-20, Room 8E-030, 1000 Independence Avenue 
SW, Washington, DC 20585.
    Due to potential delays in the delivery of postal mail, we 
encourage respondents to submit comments electronically to ensure 
timely receipt.
    This notice of proposed rulemaking and any comments that DOE 
receives will be made available on regulations.gov or the DOE Office of 
Electricity website at: https://www.energy.gov/oe/office-electricity.

FOR FURTHER INFORMATION CONTACT: Julie Ann Smith, Ph.D., U.S. 
Department of Energy, Office of Electricity, Mailstop OE-20, Room 8E-
030, 1000 Independence Avenue SW, Washington, DC 20585; 202-586-7668; 
or [email protected].

SUPPLEMENTARY INFORMATION: 
    Acronyms and Abbreviations. A number of acronyms and abbreviations 
are used in this preamble. While this may not be an exhaustive list, to 
ease the reading of this preamble and for reference purposes, the 
following terms, acronyms, and abbreviations are defined as follows:

DHS Department of Homeland Security
DOE Department of Energy
CEII Critical Electric Infrastructure Information
FAST Act Fixing America's Surface Transportation Act
FERC Federal Energy Regulatory Commission
FOIA Freedom of Information Act
FPA Federal Power Act
NTIA National Telecommunications and Information Administration
OE Office of Electricity (office within DOE)
PMA Power Marketing Administration

Table of Contents

I. Introduction and Background
II. Discussion of Proposed Rule
    A. General
    B. Definitions
    C. Summary of Proposed Procedural Rules for CEII Designation
    1. General
    2. Application Matters
    (a) Phased Application Process
    (b) Application Requirements
    (c) Application Filing Procedures
    (d) Application Amendment and Withdrawal
    3. Public Participation
    (a) Comments
    (b) Motions
    (c) Intervention
III. Public Comment Procedures
IV. Regulatory Review
    A. Executive Order 12866
    B. Executive Orders 13771, 13777, and 13783
    C. National Environmental Policy Act
    D. Regulatory Flexibility Act
    E. Paperwork Reduction Act
    F. Unfunded Mandates Reform Act of 1995
    G. Treasury and General Government Appropriations Act, 1999
    H. Executive Order 13132
    I. Executive Order 12988
    J. Treasury and General Government Appropriations Act, 2001
    K. Executive Order 13211
V. Approval of the Office of the Secretary

I. Introduction and Background

    In this proposed rule, DOE proposes to establish procedures for the 
designation of critical electric infrastructure information (CEII) 
under the Fixing America's Surface Transportation Act (FAST Act), 
Public Law 114-94. The FAST Act contains

[[Page 54269]]

several provisions designed to protect and enhance the Nation's 
electric power delivery infrastructure. Section 61003 of that Act added 
a new section 215A, entitled ``Critical Electric Infrastructure 
Security,'' to Part II of the Federal Power Act (FPA), codified at 16 
U.S.C. 824o-1. FPA section 215A authorizes both the Secretary of Energy 
(the Secretary) and the Federal Energy Regulatory Commission (FERC) 
independently to designate CEII. The FAST Act required FERC, after 
consultation with the Secretary, to ``promulgate such regulations as 
necessary to . . . establish criteria and procedures to designate 
information as [CEII]''. 16 U.S.C. 824o-1(d)(2). While FERC's 2016 
rulemaking established criteria for designating CEII applicable to both 
FERC and the Department, the designation procedures in the rulemaking 
were limited to FERC. Thus, the Department proposes to establish its 
own designation procedures.
    The Department has sought to harmonize its procedures with the FERC 
procedures as much as possible. Some small variations are the result of 
the different roles of each agency. Specifically, the Department 
anticipates receiving a smaller volume of CEII materials, due to DOE's 
non-regulatory role, which gives DOE the flexibility to engage in more 
proactive designations. Additionally, the Department's procedures 
reflect informal input from industry representatives, who are the 
submitters of CEII, regarding enhancements the DOE could make when 
adapting CEII procedures to the unique role of DOE as the Sector-
Specific Agency for the Energy Sector. For example, DOE has designed 
proposed procedures that anticipate designation before a FOIA request 
is received and allow for longer industry response times before 
materials are released.
    According to the statutory definition, CEII includes information 
that qualifies as ``critical energy infrastructure information'' under 
existing FERC regulations, which are codified at 18 CFR 388.113(c). 
These proposed CEII regulations align with DOE's role as the lead 
Sector-Specific Agency for cybersecurity for the energy sector under 
section 61003(c)(2)(A) of the FAST Act, and the Sector-Specific Agency 
for Energy (Critical Infrastructure) under Presidential Policy 
Directive 21, ``Critical Infrastructure Security and Resilience'' (Feb. 
12, 2013). In those roles and in coordination with DHS, DOE coordinates 
interagency sharing of information concerning the energy sector.

II. Discussion of Proposed Rule

General

    Through this proposed rule, DOE would establish a set of procedures 
by which the Secretary of Energy would designate, protect, and share 
CEII under new section 215A of the FPA, according to criteria FERC has 
established and codified at 18 CFR 388.113. This proposed rule would 
also set forth provisions concerning the type of information that DOE 
would designate as CEII, when that information has been submitted in 
response to a request from DOE. The proposed procedures apply to both 
Federal entities and non-Federal entities that may submit or request 
information designated, protected, and shared as CEII. The procedures 
do not contemplate any new collection or storage techniques, but 
instead describe marking protocols for physical and electronic 
materials to indicate that they are to be treated as CEII. These 
procedures better facilitate the use of the CEII FOIA exemption for 
material shared with the Department for reasons outside the scope of 
this proposed rule.
    In this proposed rule, DOE also intends to address stakeholder 
concerns about the protection of critical infrastructure information 
from public release.\1\ For example, DOE is proposing a process for 
immediate CEII designation (pre-designation) of information marked 
``Defense Critical Electric Infrastructure Information,'' and for 
information provided by industry in response to certain Federal agency 
reporting requirements. DOE also proposes to address concerns about the 
format required and time allotted for communications with DOE regarding 
its CEII designation actions. DOE further proposes increased 
coordination between DOE and submitters of potential CEII-designated 
materials to facilitate voluntary sharing of CEII with, between, and by 
Federal and non-Federal entities, as appropriate.\2\ Finally, DOE is 
proposing that the Department convene on occasion with other Federal 
agencies, in order to facilitate mutual understanding among Federal 
information classification programs as it may relate to CEII.
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    \1\ On February 14-15, 2018, DOE's Office of Electricity (OE) 
(known at the time as DOE's Office of Electricity Delivery and 
Energy Reliability) and Office of Policy convened representatives 
from energy industry, local, state, and Federal government agencies 
to discuss issues, challenges, and opportunities in CEII-sharing 
frameworks and optional information sharing protections and 
protocols leading up to the development of this proposed rule. A 
memorandum summarizing this meeting is available at https://www.energy.gov/oe/office-electricity.
    \2\ New Section 215A(d) of the Federal Power Act (FPA) requires 
DOE to develop its proposed CEII procedures necessary to, ``taking 
into account standards of the Electric Reliability Organization, 
facilitate voluntary sharing of critical electric infrastructure 
information with, between, and by: (i) Federal, State, political 
subdivision, and tribal authorities; (ii) the Electric Reliability 
Organization; (iii) regional entities; (iv) information sharing and 
analysis centers established pursuant to Presidential Decision 
Directive 63; (v) owners, operators, and users of critical electric 
infrastructure in the United States; and (vi) other entities 
determined appropriate by the [Federal Energy Regulatory] 
Commission.'' 16 U.S.C. 824o-1(d)(2)(D).
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    Note that as a general principle, DOE does not intend to designate 
information as CEII if it has been made publicly available by the owner 
or generator of the CEII previously.

Definitions

    Section 1004.13(c) of the proposed rule would define terms 
applicable to the proposed procedures in this notice for the 
designation of critical electric infrastructure information. Some terms 
are adopted from those used in the existing procedures. Other terms are 
proposed for the first time in this context.
    ``Bulk-power system'' means the facilities and control systems 
necessary for operating an interconnected electric energy transmission 
network (and any portion thereof) and electric energy from generation 
facilities needed to maintain transmission system reliability. The term 
excludes facilities used in local electric distribution.
    ``Critical electric infrastructure'' means a system or asset of the 
bulk-power system, whether physical or virtual, the incapacity or 
destruction of which would negatively affect national security, 
economic security, public health or safety, or any combination of such 
matters.
    ``Critical electric infrastructure information'' or ``CEII'' means 
information related to critical electric infrastructure, or proposed 
critical electrical infrastructure, generated by or provided to FERC or 
another Federal agency, other than classified national security 
information, that is designated as critical electric infrastructure 
information by FERC or the Secretary pursuant to section 215A(d) of the 
FPA.\3\ CEII-designated material would include information related to 
Defense

[[Page 54270]]

Critical Electric Infrastructure, consistent with section 215A(a)(4) of 
the FPA. DOE would also include the following in the definition of 
CEII: (1) ``critical energy infrastructure information'' as described 
in 18 CFR 388.113(c); \4\ (2) information reported to DOE through the 
Electric Emergency Incident and Disturbance Report (Form OE-417); and 
(3) Federal spectrum information managed by the National 
Telecommunications and Information Administration (NTIA) as CEII-
designated material.
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    \3\ Section 215A of the FPA defines critical electric 
infrastructure information to include information that is (i) 
``related to critical electric infrastructure, or proposed critical 
electric infrastructure,'' (ii) ``generated by or provided to the 
Commission or other Federal agency'' and (iii) ``designated as 
critical electric infrastructure information by the Commission or 
the Secretary.'' The definition then notes that ``[s]uch term 
includes information that qualifies as critical energy 
infrastructure information under the Commission's regulations.'' 16 
U.S.C. 824o-1(a)(3).
    \4\ FERC's regulations at 18 CFR 388.113(c) define ``critical 
energy infrastructure information'' to include information that: 
``(i) Relates details about the production, generation, 
transportation, transmission, or distribution of energy; (ii) Could 
be useful to a person in planning an attack on critical 
infrastructure; (iii) Is exempt from mandatory disclosure under the 
Freedom of Information Act, 5 U.S.C. 552; and (iv) Does not simply 
give the general location of the critical infrastructure.''
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    ``CEII coordinator'' means the Assistant Secretary or Principal 
Deputy Assistant Secretary of the DOE Office of Electricity, who shall 
provide coordination for and oversight of the implementation of DOE's 
program for CEII designation authority under Section 215A of the FPA 
and shall assist all DOE Offices in determining whether particular 
information meets the definition of CEII, as well as managing DOE's 
protection, storage, and sharing of CEII materials to ensure that CEII 
materials are shielded from disclosure in accordance with the Federal 
Power Act and the Freedom of Information Act. The CEII coordinator may 
delegate the daily implementation of the CEII coordinator function as 
described in this proposed rule to an appropriate official in the DOE 
Office of Electricity, Bonneville Power Administration, Energy 
Information Administration, Southeastern Power Administration, 
Southwestern Power Administration, or Western Area Power Administration 
(``Coordinator's designee'').

Summary of Proposed Procedural Rules for CEII Designation

    Proposed Sec.  1004.13(a) provides interested stakeholders with the 
location of information regarding CEII filing procedures and guidance.
    As described in proposed Sec.  1004.13(b), procedures for the 
designation, protection, and sharing of CEII developed under section 
215A of the FPA would apply to anyone who provides CEII to DOE or who 
receives CEII from DOE, including DOE employees, DOE contractors, 
agents of DOE, and individuals or organizations who have been permitted 
access to CEII, as well as non-DOE entities submitting CEII to DOE or 
receiving CEII from DOE. These proposed procedures would also apply to 
other Federal agencies seeking CEII designation and protection of 
information agencies may submit to DOE.
    Proposed Sec.  1004.13(c) defines the terms Critical Electric 
Infrastructure, Critical Electric Infrastructure Information (CEII), 
CEII Coordinator, Defense Critical Electric Infrastructure, Department 
of Energy (DOE), DOE Office, and Secretary, as used throughout proposed 
Sec.  1004.13. Where the terms are defined by statute or by FERC's CEII 
regulations, the definitions track those corresponding definitions, 
either verbatim or with maximum consistency.
    The procedures, as described in proposed Sec.  1004.13(d), are 
designed to allow the Secretary, or DOE Offices with authority 
delegated by the Secretary, to receive and designate CEII in a manner 
ensuring that the Department can access the critical information it 
needs to execute its responsibilities as the lead Sector-Specific 
Agency for cybersecurity for the energy sector and the Sector-Specific 
Agency for Energy (Critical Infrastructure). The FAST Act protects CEII 
by exempting CEII-designated information from disclosure under the 
Freedom of Information Act (FOIA), as codified at 5 U.S.C. 552(b)(3), 
or any Federal, State, political subdivision, or tribal law requiring 
disclosure of information or records. The proposed rules set out a 
standardized process to request CEII designation, and requirements for 
treatment of CEII following a CEII determination. The following 
sections provide greater detail regarding the proposed revisions to the 
Department's FOIA regulations.
    Proposed Sec.  1004.13(e) sets out the functions of the CEII 
Coordinator and the Coordinator's designee. The CEII coordinator may 
apply immediate CEII designation (pre-designation) to information such 
as that marked as ``Defense Critical Electric Infrastructure 
Information,'' or to information provided by industry in response to 
certain Federal agency reporting requirements or requests, as 
appropriate. However, final CEII designation authority would reside 
with the DOE Office exercising its delegated CEII designation 
authority. The CEII Coordinator, in consultation with the DOE Office 
with CEII designation authority, would be the responsible DOE official 
to make a final determination regarding the release of CEII to any non-
Federal entity requesting the release of CEII-designated materials from 
the Department. The proposed subsection also provides that DOE entities 
with authority to designate CEII would meet to calibrate their 
approaches to CEII designation, and would meet with representatives of 
other Federal agencies, as needed and at the discretion of the 
Coordinator or designee, to ensure consistent understanding of CEII 
designation processes.
    Proposed Sec.  1004.13(f) states that CEII is exempt from 
disclosure under FOIA, as provided by the FAST Act amendments to the 
FPA.
    Proposed Sec.  1004.13(g) sets out criteria and procedures the 
Department would follow to designate CEII. The subsection covers 
requesting designation for information submitted to or generated by 
DOE, how DOE would treat submitted information and apply the CEII 
designation criteria, how DOE would treat information once it has 
decided whether to designate the information as CEII, and how DOE would 
protect designated CEII.
    Proposed Sec.  1004.13(h) states that CEII designations can last up 
to five years and are renewable, and describes how designation may be 
removed and how DOE would treat and return the information should its 
designation be removed.
    Proposed Sec.  1004.13(i) describes how a submitter may request 
reconsideration of a decision not to designate CEII, not to release 
CEII in response to a request for release, or not to maintain an 
existing CEII designation, and discusses eligibility for judicial 
review. The subsection also notes that, with several exceptions, a 
reconsideration request triggers a stay of the underlying decision.
    Proposed Sec.  1004.13(j) discusses tightly-controlled sharing of 
CEII among Federal and non-Federal Entities, taking into account 
International Sharing Protocols when appropriate. The subsection notes 
that when the Department plans to share CEII it did not generate, it 
would notify the submitter well in advance unless circumstances dictate 
otherwise and would speak directly with the submitter before sharing 
any of the information to discuss any concerns and make a well-informed 
determination.
    Proposed Sec.  1004.13(k) describes procedural requirements for 
requesting CEII. A request must include contact information, an 
explanation of the need for and intended use of the CEII, and a signed 
Non-Disclosure Acknowledgment or Agreement, as applicable.
    Proposed Sec.  1004.13(l) sets out penalties and sanctions for 
unauthorized disclosure of CEII, emphasizing that statutory 
whistleblower protections still apply.

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(a) Criteria and Procedure for Designating CEII
    Proposed Sec.  1004.13 outlines criteria and procedures for 
designating CEII. The Department understands that the energy sector, 
including electric entities, requires assurance that certain critical 
information will be protected from public disclosure. DOE would take 
appropriate measures related to the treatment of submitted information 
as CEII, including designation of a central Departmental point of 
contact for all CEII matters--the DOE CEII Coordinator as defined in 
Sec.  1004.13(c)(3)--who would provide oversight and assistance to DOE 
Offices in the implementation of the proposed procedures as described 
in Sec.  1004.13(e).
    In cases where information concerns ``Defense Critical Electric 
Infrastructure,'' as defined by Section 215A(a)(4) of the FPA, DOE 
proposes to designate such information as CEII automatically upon 
receipt by the DOE CEII Coordinator. In cases where information 
concerning Federal government agency spectrum use managed by the NTIA 
is submitted,\5\ or in cases in which information on electric incidents 
and emergencies reported to DOE through Form OE-417 is submitted as a 
part of a CEII-designation request, DOE also proposes to designate such 
information as CEII automatically upon receipt by the DOE CEII 
Coordinator.\6\ In communications to the submitter, or DOE Office and/
or Federal agency generating the information, DOE may ``pre-designate'' 
such information as CEII, noting why it considers the material to fall 
within the statutory and regulatory definition of CEII.
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    \5\ See Executive Order No. 12046, as amended, 3 CFR (1978 
comp.) 158, reprinted in 47 U.S.C. 305 app. at 127 (1989); U.S. 
Department of Commerce, Department Organization Orders 10-10 and 25-
7. Executive Order No. 12046, as amended, requires that NTIA, on 
behalf of the Secretary of Commerce, act as Federal spectrum manager 
for Federal government agency spectrum users, and as the principal 
Executive branch advisor on telecommunications policy. Information 
concerned with Federal agency spectrum frequency assignments 
includes data about critical electric infrastructure owned and/or 
operated by Federal Power Marketing Administrations.
    \6\ Electric utilities that operate as Balancing Authority Area 
and/or Reliability Coordinator as well as other electric utilities, 
as appropriate, are required to file the Form OE-417. This form is a 
mandatory filing whenever an electrical incident or disturbance is 
large enough to cross the reporting thresholds. Reporting coverage 
for the Form OE-417 includes all 50 States, the District of 
Columbia, Puerto Rico, the U.S. Virgin Islands, and the U.S. Trust 
Territories. The Department of Energy uses the information to 
fulfill its overall national security and other energy emergency 
management responsibilities, as well as for analytical purposes. The 
incidence and disturbance data reported on Schedule 1 of the form 
are not confidential. However, all data reported on Schedule 2 of 
the Form (information on the official to contact for follow-up and 
the narrative description of the incident and disturbance) will be 
protected.
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    The proposed procedures outline how the Department would provide 
protection for information where CEII designation has been requested 
but a final determination on CEII status has not yet been made by the 
Secretary or the designating DOE Office. After submission, DOE would 
evaluate whether the submitted information or portions of information 
meet the criteria established for designation prior to making a CEII 
determination. DOE would subsequently communicate the decision to the 
submitter as soon as practicable. If designated as CEII, information 
would be labeled as such and would be stored in a manner affording 
protection as CEII. Information voluntarily supplied by submitter that 
is not designated as CEII by DOE would be returned or destroyed at the 
request of the submitter. If a submitter is required to provide 
information and DOE denies CEII designation, the submitter may file a 
request for review under the proposed procedures.
    Power Marketing Administrations (PMAs) generate copious data, a 
great deal of which may be CEII. To accommodate the practical 
difficulties of making CEII designation decisions about such data, 
proposed section (g)(2)(iv) states that all organizational entities 
that are a part of the Executive Department created by Title II of the 
DOE Organization Act may make CEII determination decisions at any time, 
regardless of when such information was generated. The proposed 
procedures are also intended for use by other Federal agencies that may 
also want to request CEII protection for information generated, 
collected, managed, or potentially released that fits into the 
definition of CEII in Sec.  1004.13(c). These procedures create no new 
burdens in the existing FOIA response process.
(b) Duration of CEII Designation
    Proposed Sec.  1004.13(h) outlines procedures governing the 
duration of CEII designation, to include re-applications for CEII 
designation, expiration of designation, removal of designation, and 
treatment and return of information no longer designated as CEII.
(c) Review or Requests for Reconsideration of Designation
    Proposed Sec.  1004.13(i) establishes procedures that would allow 
any person who has submitted information requested to be CEII to 
request reconsideration of a DOE decision to not designate that 
information as CEII, to remove an existing CEII designation, or to deny 
a request for the release or change of designation of CEII.
(d) Sharing of CEII
    As indicated in proposed Sec.  1004.13(j), DOE may share CEII as 
necessary to carry out its specific jurisdictional duties pursuant to 
section 215A of the FPA and as the lead Sector-Specific Agency for 
cybersecurity for the energy sector under section 61003(c)(2)(A) of the 
FAST Act, and the Sector-Specific Agency for Energy (Critical 
Infrastructure) under Presidential Policy Directive 21, ``Critical 
Infrastructure Security and Resilience'' (Feb. 12, 2013). Those 
submitting CEII would have DOE's assurance that the information will be 
protected from unauthorized disclosure. The Department would follow 
standardized procedures when sharing CEII with Federal and non-Federal 
entities to ensure the protection of CEII. Non-Federal entities would 
be required to enter into a Non-Disclosure Agreement with the 
Department, meeting minimum standards outlined in the proposed rule, 
prior to receiving CEII from DOE. When a non-Federal entity requests 
such information, the DOE CEII coordinator would notify the submitter 
of the CEII and the appropriate DOE Office(s), to facilitate 
coordination and allow the submitter to raise concerns related to a 
requesting entity. The DOE CEII coordinator would, in consultation with 
the appropriate DOE Office(s), make a final determination on whether to 
release any CEII-designated material in response to such a request.
(e) Procedures for Requesting CEII
    Proposed Sec.  1004.13(k) delineates procedures for requesting CEII 
designation and sharing CEII-designated materials.

III. Public Comment Procedures

    Interested persons are invited to participate in this proceeding by 
submitting data, views, or arguments. Written comments should be 
submitted to the address, and in the form, indicated in the ADDRESSES 
section of this notice of proposed rulemaking. To help DOE's review of 
the comments, interested persons are asked to refer to specific 
proposed rule provisions, if possible.
    Written comments must be submitted by 4:00 p.m., December 28, 2018, 
electronically via Regulations.gov, via email to [email protected], or 
to the address indicated in the ADDRESSES section of this preamble and 
should be identified on the outside envelope and

[[Page 54272]]

on the document with the designation: ``Proposed Rulemaking Critical 
Electric Infrastructure Information Designation Procedures (Docket #OE-
1901-AB44).'' All comments received will be available for public 
inspection via https://www:regulations.gov. All comments received by 
4:00 p.m., December 28, 2018, and all other relevant information will 
be considered by DOE before final action is taken on this proposed 
regulation.
    If you submit information that you believe to be exempt by law from 
public disclosure, you should submit one complete copy, as well as one 
copy from which the information requested to be exempt by law from 
public disclosure has been redacted. DOE is responsible for the final 
determination regarding disclosure or nondisclosure of the information, 
and for treating the information accordingly under FOIA and DOE 
implementing regulations at 10 CFR 1004.11.

IV. Regulatory Review

A. Executive Order 12866

    This action was determined to be a significant regulatory action 
subject to review under Executive Order 12866, ``Regulatory Planning 
and Review,'' 58 FR 51735 (Oct. 4, 1993) by the Office of Information 
and Regulatory Affairs (OIRA) of the Office of Management and Budget 
(OMB).

B. Executive Orders 13771, 13777, and 13783

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' That Order 
stated the policy of the executive branch is to be prudent and 
financially responsible in the expenditure of funds, from both public 
and private sources. The Order stated it is essential to manage the 
costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations.
    Additionally, on February 24, 2017, the President issued Executive 
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order 
required the head of each agency to designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO oversees the implementation 
of regulatory reform initiatives and policies to ensure that agencies 
effectively carry out regulatory reforms, consistent with applicable 
law. Further, Executive Order 13777 requires the establishment of a 
regulatory task force at each agency. The regulatory task force is 
required to make recommendations to the agency head regarding the 
repeal, replacement, or modification of existing regulations, 
consistent with applicable law. At a minimum, each regulatory reform 
task force must attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;
    (v) Are inconsistent with the requirements of the Information 
Quality Act, or the guidance issued pursuant to that Act, in particular 
those regulations that rely in whole or in part on data, information, 
or methods that are not publicly available or that are insufficiently 
transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive Orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    Finally, on March 28, 2017, the President signed Executive Order 
13783, entitled ``Promoting Energy Independence and Economic Growth.'' 
Among other things, Executive Order 13783 requires the heads of 
agencies to review all existing regulations, orders, guidance 
documents, policies, and any other similar agency actions 
(collectively, agency actions) that potentially burden the development 
or use of domestically produced energy resources, with particular 
attention to oil, natural gas, coal, and nuclear energy resources. Such 
review does not include agency actions that are mandated by law, 
necessary for the public interest, and consistent with the policy set 
forth elsewhere in that order. Executive Order 13783 defined ``burden'' 
for purposes of the review of existing regulations to mean ``to 
unnecessarily obstruct, delay, curtail, or otherwise impose significant 
costs on the siting, permitting, production, utilization, transmission, 
or delivery of energy resources.
    The development and implementation of the proposed procedures, as 
laid out in Section 215A(d) of the FPA, are designed to protect the 
security and reliability of the nation's bulk-power system, 
distribution facilities, and other forms of energy infrastructure. The 
procedures relate solely to marking information that would facilitate 
voluntary sharing of CEII among DOE and other appropriate Federal, 
state, or local entities to address emergencies, accidents, or 
intentional destructive acts affecting the production, transmission and 
delivery of energy resources. There is no new reporting requirement nor 
new program created as a result of the proposed procedures. This 
information will be stored on currently existing DOE systems. DOE 
concludes that this proposed rule is consistent with the directives set 
forth in these Executive Orders.

C. National Environmental Policy Act

    DOE has determined that this proposed rule is covered under the 
Categorical Exclusion found in the DOE's National Environmental Policy 
Act regulations at paragraph A6 Rulemakings, procedural of Appendix A 
to Subpart D, 10 CFR part 1021, which applies to Rulemakings that are 
strictly procedural, such as rulemaking (under 48 CFR part 9) 
establishing procedures for technical and pricing proposals and 
establishing contract clauses and contracting practices for the 
purchase of goods and services, and rulemaking (under 10 CFR part 600) 
establishing application and review procedures for, and administration, 
audit, and closeout of, grants and cooperative agreements. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE's procedures 
and policies are available on the Office of General Counsel's website: 
https://energy.gov/gc/office-general-counsel.
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. This proposed rule sets forth agency procedures for 
the designation, sharing, and protection of CEII, and applies to DOE 
employees, DOE contractors, agents of DOE, and individuals or 
organizations submitting a request for CEII designation or who have 
requested or been permitted access to CEII. The proposed procedures for 
marking incoming requests and/or submissions, which are expected to

[[Page 54273]]

facilitate voluntary sharing of CEII among DOE and other appropriate 
Federal, state, or local entities to address emergencies, accidents, or 
intentional destructive acts to the production, transmission, and 
delivery of energy resources, are not expected to result in a 
significant impact. FERC's regulations already require entities 
requesting CEII designation to mark the subject information. DOE's 
procedures would provide consistency and would also help avoid 
unauthorized disclosure or release. DOE therefore expects that these 
procedures, if adopted, would not affect DOE's decision to designate 
submitted information as CEII, nor any decision to withhold or release 
information to requesters of energy infrastructure information under 
FOIA. On the basis of the foregoing, DOE certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. Accordingly, DOE has not prepared a 
regulatory flexibility analysis for this rulemaking. DOE's 
certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

E. Paperwork Reduction Act

    Proposed Sec. Sec.  1004.13(g), 1004.13(h), 1004.13(i), and 
1004.13(k) contain information collection requirements. DOE has 
submitted the proposed collection of information to the OMB for 
approval pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.) and the procedures implementing that Act at 5 CFR part 
1320. A person is not required to respond to a collection of 
information unless it displays a currently valid OMB control number.
    DOE invites public comment on (1) whether the proposed information 
collection requirements are necessary for the performance of DOE's 
functions, including whether the information will have practical 
utility; (2) the accuracy of DOE's estimates of the burden of the 
proposed information collection requirements; (3) ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
(4) ways to minimize the burden of the information collection 
requirements on respondents. Comments should be addressed to the DOE 
Desk Officer, OIRA, OMB, 725 17th Street NW, Washington, DC 20503. 
Persons submitting comments to OMB also are requested to send a copy to 
the contact person at the address given in the ADDRESSES section of 
this notice of proposed rulemaking. Interested persons may obtain a 
copy of DOE's Paperwork Reduction Act Submission to OMB from the 
contact person named in this notice of proposed rulemaking.

F. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Section 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or tribal governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of State, 
local, and tribal governments. 2 U.S.C. 1534.
    The proposed rule will not result in the expenditure by State, 
local, and tribal governments in the aggregate, or by the private 
sector, of $100 million or more in any one year. Accordingly, no 
assessment or analysis is required under the Unfunded Mandates Reform 
Act of 1995.

G. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. The proposed rule will not have any impact on the autonomy 
or integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

H. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined this proposed rule and has 
determined that it will not preempt State law and will not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

I. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order 12988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order 12988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or 
whether it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the proposed rule meets the relevant standards of 
Executive Order 12988.

[[Page 54274]]

J. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB.
    OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed this proposed rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Executive Order 13211

    Executive Order No. 13,211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
OMB a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of the OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. This regulatory 
action will not have a significant adverse effect on the supply, 
distribution, or use of energy because it is concerned primarily with 
the procedures for designating, protecting, and sharing information. As 
the FAST Act highlighted, protection of CEII will have a positive 
effect on the energy supply, and is therefore not a significant energy 
action. Accordingly, DOE has not prepared a Statement of Energy 
Effects.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this notice of 
proposed rulemaking.

List of Subjects in 10 CFR Part 1004

    Freedom of Information.

    Signed in Washington, DC, on October 19, 2018.
Bruce J. Walker,
Assistant Secretary, Office of Electricity.

    For the reasons set out in the preamble, the DOE proposes to amend 
part 1004 of title 10, Code of Federal Regulations as set forth below:

PART 1004--FREEDOM OF INFORMATION ACT (FOIA)

0
1. The authority citation for part 1004 is revised to read as follows:

    Authority: 5 U.S.C. 552; 16 U.S.C. 824o-1.

0
2. Add Sec.  1004.13 to read as follows:


Sec.  1004.13  Critical electric infrastructure information.

    (a) Filing Procedures and Guidance. Information regarding critical 
electric infrastructure information (CEII) filing procedures and 
further guidance for submitters and requesters is available on the 
website of the DOE Office of Electricity at https://www.energy.gov/oe/office-electricity.
    (b) Purpose and Scope. This part sets forth the regulations of the 
Department of Energy (DOE) that implement section 215A(d) of the 
Federal Power Act (FPA), codified at 16 U.S.C. 824o-1(d). The 
regulations in this part set forth the DOE procedures for the 
designation, sharing, and protection of CEII. This section applies to 
anyone who provides CEII to DOE or who receives CEII from DOE, 
including DOE employees, DOE contractors, and agents of DOE or of other 
Federal agencies, as well as individuals or organizations providing 
CEII or submitting a request for CEII designation to DOE or who have 
requested or have been permitted access to CEII by DOE.
    (c) Definitions.
    (1) Bulk-Power System means the facilities and control systems 
necessary for operating an interconnected electric energy transmission 
network (and any portion thereof), and electric energy from generation 
facilities needed to maintain transmission system reliability. The term 
does not include facilities used in the local distribution of electric 
energy.
    (2) Critical Electric Infrastructure means a system or asset of the 
bulk-power system, whether physical or virtual, the incapacity or 
destruction of which would negatively affect national security, 
economic security, public health or safety, or any combination of such 
matters.
    (3) Critical Electric Infrastructure Information (CEII) is defined 
at FPA section 215A(a)(3), with designation criteria codified at 18 CFR 
388.113(c). CEII means information related to critical electric 
infrastructure, or proposed critical electrical infrastructure, 
generated by or provided to FERC or another Federal agency, other than 
classified national security information, that is designated as CEII by 
FERC or the Secretary pursuant to section 215A(d) of the FPA. Such term 
includes information that qualifies as critical energy infrastructure 
information under FERC's regulations. CEII-designated material may 
include information related to Defense Critical Electric 
Infrastructure, consistent with section 215A(a)(4) of the FPA; 
information on electric incidents and emergencies reported to DOE 
through the Electric Emergency Incident and Disturbance Report (Form 
OE-417); and/or Federal spectrum information managed by the National 
Telecommunications and Information Administration (NTIA), to the extent 
such information also qualifies as CEII.
    (4) CEII Coordinator means the Assistant Secretary or Principal 
Deputy Assistant Secretary of the DOE Office of Electricity, who shall 
coordinate and oversee the implementation of DOE's program for CEII-
designation authority under section 215A of the FPA, assist all DOE 
Office(s) with respect to requests for CEII designation in determining 
whether particular information fits within the definition of CEII, and 
manage DOE's protection, storage, and sharing of CEII materials and 
oversight of the development of CEII international sharing protocols. 
The CEII Coordinator may delegate the daily implementation of the CEII 
Coordinator function as described in this proposed rule to an 
appropriate DOE Office of Electricity official, and to an appropriate 
official in the Bonneville Power Administration, the Energy Information 
Administration, the Southeastern Power Administration, the Southwestern 
Power Administration, or the Western Area Power Administration 
(``Coordinator's designee'').
    (5) Defense Critical Electric Infrastructure means any electric 
infrastructure located in any of the 48 contiguous States or the 
District of Columbia that serves a facility designated by the Secretary 
as critical to the defense of the United States and vulnerable to a 
disruption of the supply of electric energy provided to such facility 
by an external provider, but that is not owned or operated by the owner 
or operator of such facility.
    (6) Department means the United States Department of Energy.
    (7) Department of Energy (DOE) means all organizational entities 
that are part of the Executive Department

[[Page 54275]]

created by Title II of the DOE Organization Act (Pub. L. 95-91, 91 
Stat. 565, 42 U.S.C. 7101 et seq.). For purposes of this part, the 
definition of DOE specifically excludes the Federal Energy Regulatory 
Commission, which has promulgated its own CEII procedures at 18 CFR 
388.113.
    (8) DOE Office means any administrative or operating unit of DOE 
with authority at or above the level of Assistant Secretary, Principal 
Deputy Assistant Secretary, or Administrator.
    (9) Secretary means the Secretary of Energy.
    (d) Authority to designate information as CEII. The Secretary has 
the authority to designate information as CEII, in accordance with FPA 
section 215A. The Secretary may delegate the authority to designate 
information as CEII to any DOE Office.
    (e) Coordination among DOE Office designators. The DOE CEII 
Coordinator shall be the primary point of contact for the submission of 
all requests for designation of information as CEII by DOE, as well as 
for requests made to DOE by organizations or individuals for 
information that may be protected, in whole or in part, as CEII.
    (1) The CEII Coordinator or Coordinator's designee shall:
    (i) Receive and review all incoming requests for CEII as defined in 
Sec.  1004.13(c) and in accordance with Sec.  1004.13(g);
    (ii) Make initial determinations as to whether particular 
information fits within the definition of CEII found at Sec.  
1004.13(c), including but not limited to those considerations related 
to pre-designation of information related to Defense Critical Electric 
Infrastructure as defined in Sec.  1004.13(c), NTIA-managed Federal 
agency spectrum use information, and/or accident and emergency 
information provided to DOE through Form OE-417;
    (iii) Assist any DOE Offices with delegated CEII designation 
authority to make determinations as to whether a particular requester's 
need for and ability and willingness to protect CEII warrants limited 
disclosure of the information to the requester;
    (iv) Establish reasonable conditions for considering requests for 
release of CEII-designated material in accordance with Sec.  
1004.13(g)(5) through (6);
    (v) Make the Department's final determination regarding request by 
any non-Federal entity (organization or individual) for CEII-designated 
materials, in consultation with the appropriate DOE Office(s);
    (vi) Notify a CEII submitter of a request for such information by a 
non-Federal entity;
    (vii) Convene a conference call within no more than five (5) 
business days between an affected DOE Office and a CEII submitter to 
discuss concerns related to a non-Federal entity requesting release of 
CEII; and
    (viii) Perform oversight of the DOE CEII program and establish 
guidance for the treatment, handling, and storage of all CEII materials 
in the Department in accordance with Sec.  1004.13(g)(6), including 
those related to CEII international sharing protocols.
    (2) DOE Offices with delegated authority to designate CEII in 
accordance with Sec.  1004.13(d), as well as any CEII Coordinator 
designee(s) from the Bonneville Power Administration, the Energy 
Information Administration, the Southeastern Power Administration, the 
Southwestern Power Administration, and the Western Area Power 
Administration, will meet regularly, at the discretion of the CEII 
Coordinator, but not less than once per year, to ensure coordinated 
implementation of DOE's CEII designation authority.
    (3) DOE, at the discretion of the CEII Coordinator, shall meet with 
representatives from FERC semi-annually (or more often, as necessary) 
to ensure that both agencies are applying CEII designation criteria 
consistently and to share best practices.
    (4) DOE, at the discretion of the CEII Coordinator, shall meet 
annually with representatives from Department of Commerce, NTIA, or 
other Federal agencies, as needed, to ensure shared understanding and 
consistent communication among Federal agencies that collect, maintain 
and potentially release information that DOE may consider designating 
as CEII as defined in Sec.  1004.13(c).
    (f) Criteria and procedures for designating CEII.
    (1) Requesting CEII designation of information submitted to DOE. 
Any person or entity requesting that information submitted to DOE be 
designated as CEII must submit such request to the DOE CEII Coordinator 
or Coordinator's designee according to the following procedures:
    (i) The submitter must clearly label the cover page and pages or 
portions of the information for which CEII treatment is requested in 
bold, capital lettering, indicating that it contains CEII, as 
appropriate, and marked ``CEII--DO NOT RELEASE.''
    (ii) The submitter must also clearly indicate the DOE Office(s) 
from which the CEII designation is being requested in bold, capital 
lettering on the cover page.
    (iii) The submitter must also segregate those portions of the 
information that contain CEII (or information that reasonably could be 
expected to lead to the disclosure of the CEII) wherever feasible.
    (iv) The submitter must submit a public version of the information 
where information designated CEII and information for which CEII 
designation is requested is redacted or otherwise protected through 
extraction from the non-CEII to the DOE CEII Coordinator and the 
Coordinator's designee in an appropriate DOE Office.
    (2) Requesting CEII designation for information generated by DOE. 
Any DOE employees, DOE contractors, or agents of DOE requesting that 
information generated by the Department be designated as CEII must 
submit such request to the DOE CEII Coordinator and the Coordinator's 
designee in an appropriate DOE Office according to the following 
procedures:
    (i) The submitter must clearly label the cover page and pages or 
portions of the information for which CEII treatment is requested in 
bold, capital lettering, indicating that it contains CEII, as 
appropriate, and marked ``CEII--DO NOT RELEASE.''
    (ii) The submitter must also segregate those portions of the 
information that contain CEII (or information that reasonably could be 
expected to lead to the disclosure of the CEII) wherever feasible.
    (iii) The submitter must submit to DOE a public version of the 
information where information designated CEII and information for which 
CEII designation is requested is redacted or otherwise protected 
through extraction from non-CEII to the DOE CEII Coordinator and 
Coordinator's designee.
    (iv) CEII designation for information generated by DOE, to include, 
all organizational entities that are a part of the Executive Department 
created by Title II of the DOE Organization Act, may be executed at any 
time, regardless of when such information was generated.
    (3) Treatment of Submitted Information as CEII.
    (i) Upon receiving a request for CEII designation of information 
submitted to DOE, the DOE CEII Coordinator or Coordinator's designee 
shall review the submission made in accordance with Sec.  1004.13(g)(2) 
for information about ``Defense Critical Electric Infrastructure,'' as 
defined by section 215A(a)(4) of the FPA; information on electric 
incidents and emergencies reported to DOE through Form OE-417; and/or 
Federal spectrum information managed by the NTIA, for immediate

[[Page 54276]]

pre-designation as CEII. If the CEII Coordinator determines that the 
information submitted does not qualify for immediate pre-designation, 
such information shall be evaluated for designation as CEII under this 
part.
    (ii) Information for which CEII treatment is requested will be 
maintained by the CEII Coordinator or Coordinator's designee in DOE's 
files as non-public unless and until DOE completes its determination 
that the information is not entitled to CEII treatment. The interim 
treatment of the information as CEII does not mean that DOE has made a 
determination regarding CEII designation. DOE will endeavor to make a 
determination as soon as practicable. The Department retains the right 
to make determinations about any request for CEII designation at any 
time, including the removal of a previously granted CEII designation. 
At such time that a determination is made that information is not 
entitled to CEII treatment, DOE will follow the procedures for return 
of information not designated as CEII outlined in Sec.  
1004.13(g)(5)(iii).
    (iii) When a requester seeks information for which CEII status has 
been requested but not designated, or when DOE itself is considering 
release of such information, DOE will render a decision on designation 
before responding to the requester or releasing such information. 
Subsequently, the release of information will be treated in accordance 
with the procedures established for CEII-designated material, or the 
return of information not designated as CEII.
    (4) Evaluation of CEII designation criteria to inform CEII 
designation determination.
    (i) The DOE CEII Coordinator, or a Coordinator's designee, will 
execute the Department's evaluation as to whether the submitted 
information or portions of the information meets the definition of 
CEII, as described at section (c)(2) of this Part, with the appropriate 
DOE Office with delegated CEII designation authority. The DOE Office 
will designate submitted information as soon as practicable and will 
inform submitters of the designation date if requested at the time of 
submission.
    (ii) Reserved.
    (5) CEII Determination.
    (i) The Secretary or delegated DOE Office will make a determination 
regarding CEII designation after considering the information against 
the criteria for CEII designation. Upon making the determination, the 
DOE CEII Coordinator or Coordinator's designee shall communicate the 
decision to the submitter.
    (ii) Review of determination. DOE reserves the right to review at 
any time information designated by DOE as CEII to determine whether the 
information is properly designated. The designation of information as 
CEII, or the removal of such designation, must be reviewed when:
    (A) A FOIA request is submitted for the information under section 
1004.10, or
    (B) A request is made for reconsideration of the designation or 
removal of the designation under Sec.  1004.13(i)(1).
    (iii) Return of Information not designated as CEII. If the 
submitter voluntarily provided the information to DOE, at the request 
of the submitter, DOE will return or destroy information for which CEII 
designation was requested but not granted, and will attempt to remove 
all copies of such information from DOE files, both physical and 
electronic. DOE shall not remove electronic files in the ordinary 
course of business. If a submitter is required to provide information 
and DOE denies CEII designation, the submitter may file a request for 
review under the procedures.
    (6) Protection of CEII.
    (i) Marking of CEII. All information designated by DOE as CEII, 
whether submitted to or generated by DOE, shall be clearly labeled as 
such, and shall include the date on which the information was 
designated as CEII. For information that meets the definition of CEII 
but cannot be physically labeled, such as electronic information, the 
information shall be stored in a secure electronic environment that 
identifies the stored information as CEII.
    (ii) Protection and Exemption from Disclosure. All information 
designated by DOE as CEII:
    (A) Shall be exempt from disclosure under the FOIA exemption 
codified at 5 U.S.C. 552(b)(3); and
    (B) Shall not be made available by any Federal, State, political 
subdivision or tribal authority under any Federal, State, political 
subdivision or tribal law requiring public disclosure of information or 
records, in accordance with FPA section 215A(d)(1).
    (iii) Secure Storage. DOE will store information for which CEII 
treatment is requested in a secure place in a manner that would prevent 
unauthorized access.
    (h) Duration of designation. Designation of information as CEII may 
last up to a five-year period, unless re-designated.
    (1) Expiration of designation.
    (i) The Secretary or delegated DOE Office will determine the 
duration of designation at the time of designation.
    (ii) A submitter may re-apply for CEII designation no earlier than 
one year prior to the date of expiration of the prior designation or 
re-designation in accordance with the application procedures in Sec.  
1004.13(g)(1).
    (2) Removal of designation. The designation of information as CEII 
may be removed at any time, by the Secretary or the DOE CEII 
Coordinator in consultation with the DOE Office to which the Secretary 
has delegated the authority, in whole or in part, upon determination 
that the unauthorized disclosure of such information could no longer be 
used to impair the security or reliability of the bulk-power system or 
distribution facilities or any other form of energy infrastructure. If 
the CEII designation is to be removed, the submitter and the DOE Office 
that produced or maintains the CEII will receive notice and an 
opportunity to comment. The CEII Coordinator or Coordinator's designee 
will notify the submitter and the DOE Office that produced or maintains 
the CEII, and will give the submitter an opportunity (at least ten (10) 
business days) in which to comment in writing prior to the removal of 
the designation. The CEII Coordinator or Coordinator's designee will 
provide notice of a removal decision to any submitter claiming that the 
information is CEII no less than twenty (20) business days before 
disclosure. The notice will briefly explain DOE's determination of why 
the submitter's objections do not support a decision to retain the CEII 
designation.
    (3) Treatment and return of information no longer designated as 
CEII. At the request of the submitter, DOE will return or destroy 
information for which CEII designation has expired or has been removed 
and will attempt to remove all copies of it from DOE files, both 
physical and electronic; however, DOE shall not remove electronic files 
that have been backed up in the ordinary course of business. Such 
backed up electronic files shall be treated as CEII until they are 
destroyed under the normal electronic backup retention schedules. If a 
FOIA request is received for the non-CEII prior to its return or 
destruction, DOE will work with the submitter to review whether the 
information is subject to other FOIA exemptions.
    (i) Review or requests for reconsideration of designation.
    (1) Request for Reconsideration.
    (i) Any person who has submitted information and requested such 
information to be designated as CEII may request reconsideration of a 
DOE decision not to designate that information as CEII or to remove an

[[Page 54277]]

existing CEII designation. Within ten (10) business days of 
notification by DOE of its CEII decision, the person must file a 
request for reconsideration. The request must be sent to the DOE CEII 
Coordinator and Coordinator's designee in electronic format at: CEII 
COORDINATOR MAILBOX. The request must also be sent to the DOE Office 
that made the decision at issue and to DOE's Office of General Counsel 
in Washington, DC, according to the instructions at 10 CFR 205.12. A 
statement in support of the request for reconsideration must be 
submitted within twenty (20) business days of the date of the 
determination. The request and the supporting statement will be 
considered submitted upon receipt by the Office of General Counsel.
    (ii) Any person who has received a decision denying a request for 
the release of CEII, in whole or in part, or a decision denying a 
request to change the designation of CEII, may request reconsideration 
of that decision. A statement in support of the request for 
reconsideration must be submitted to the Office of General Counsel 
within twenty (20) business days of the date of the determination.
    (iii) The Secretary or the DOE Office that made the decision at 
issue will make a determination, in coordination with the DOE CEII 
Coordinator or Coordinator's designee, with respect to any request for 
reconsideration within twenty (20) business days after the receipt of 
the request and will notify the person submitting the request of the 
determination and the availability of judicial review.
    (iv) Before seeking judicial review in Federal District Court under 
section 215A(d)(11) of the Federal Power Act, a person who received a 
determination from DOE concerning a CEII designation must first request 
reconsideration of that determination.
    (v) A request for reconsideration triggers a stay of the underlying 
decision, except in instances where voluntary sharing of the disputed 
information is necessary for law enforcement purposes, to ensure 
reliable operation or maintenance of electric or energy infrastructure, 
to maintain infrastructure security, to address potential threats, or 
to address an urgent need to disseminate the information quickly due to 
an emergency or other unforeseen circumstance.
    (j) Sharing of CEII.
    (1) Federal Entities. DOE will require those Federal entities 
requesting CEII to follow the procedures specified in Sec.  1004.13(k). 
DOE may share CEII with affected agencies for those agencies to carry 
out their specific jurisdictional responsibilities, but may impose 
additional restrictions on how the information may be used and 
maintained, if shared.
    (2) Non-Federal Entities. The Secretary or the DOE Coordinator 
shall make a final determination whether to share CEII materials 
requested by non-Federal entities that are within the categories 
specified in section 215A(d)(2)(D) of the FPA. A request by such a non-
Federal entity shall not be entertained unless the requesting non-
Federal entity has entered into a Non-Disclosure Agreement with DOE 
that ensures, at a minimum:
    (i) Use of the information only for authorized purposes and by 
authorized recipients and under the conditions prescribed by the 
Secretary or CEII Coordinator;
    (ii) Protection of the information in a secure manner to prevent 
unauthorized access;
    (iii) Destruction or return of the information after the intended 
purposes of receiving the information have been fulfilled;
    (iv) Prevention of viewing or access by individuals or 
organizations that have been prohibited or restricted by the United 
States or the Department from viewing or accessing CEII;
    (v) Compliance with the provisions of the Non-Disclosure Agreement, 
subject to DOE audit; and
    (vi) No further sharing of the information without DOE's 
permission.
    (3) Security and Reliability Coordination. In accordance with 
section 215A(d)(2)(D) of the FPA, DOE may, taking into account 
standards of the Electric Reliability Organization, facilitate 
voluntary sharing of CEII 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; 
reliability coordinators, balancing authorities areas, owners, 
operators, and users of critical electric infrastructure in the United 
States; and other entities determined appropriate. All entities 
receiving CEII must execute either a Non-Disclosure Agreement or an 
Acknowledgement and Agreement or participate in an Electric Reliability 
Organization or Regional Entity information sharing program that 
ensures the protection of CEII. A copy of each agreement or program 
will be maintained by the DOE Office with a copy to the CEII 
Coordinator or the Coordinator's designee. If DOE facilitates voluntary 
sharing of CEII under this subsection, DOE may impose additional 
restrictions on how the information may be used and maintained.
    (4) International Sharing Protocols. The Secretary may delegate 
authority to DOE Offices to develop, after consultation with Canadian 
and Mexican authorities, protocols for the voluntary sharing of CEII 
with Canadian and Mexican authorities and owners, operators, and users 
of the bulk-power system outside the United States. The DOE CEII 
Coordinator or Coordinator's designee would provide assistance and 
advice to DOE Offices in the development of the international sharing 
protocols.
    (5) Notice for Sharing of CEII not Generated by DOE. The DOE CEII 
Coordinator or Coordinator's designee will provide electronic notice to 
the CEII submitter no less than ten (10) business days before DOE 
releases CEII submitted to and not generated by DOE, except in 
instances where voluntary sharing is necessary for law enforcement 
purposes, to ensure reliable operation or maintenance of electric or 
energy infrastructure, to maintain infrastructure security, or to 
address potential threats; where there is an urgent need to quickly 
disseminate the information; or where prior notice is not practicable 
due to an emergency or other unforeseen circumstance. If prior notice 
is not given, DOE will provide notice as soon as practicable. The DOE 
CEII Coordinator or Coordinator's designee would convene a phone call, 
within five (5) days of electronic notice with the CEII submitter, to 
discuss concerns about the proposed release of CEII-designated 
materials to the requester. DOE would make the final determination as 
to whether to share CEII not generated by DOE.
    (k) Procedures for requesting CEII. Any person requesting CEII must 
include the following material with the request:
    (1) Contact Information. Provide your name, title and employer, 
work address, work phone number, and work email. If you are requesting 
the information on behalf of a person or entity other than yourself, 
you must also list that person's or entity's work contact information, 
including name, title, address, phone number, and email.
    (2) Explanation of Need. Provide a detailed statement explaining 
the particular need for and intended use of the information.
    (3) Signed Non-Disclosure Acknowledgement/Agreement. Provide an 
executed Non-Disclosure Acknowledgement (if the requester is a Federal 
entity) or an executed Non-Disclosure Agreement (if the requester is 
not a Federal entity) requiring

[[Page 54278]]

adherence to limitations on the use and disclosure of the information 
requested.
    (4) DOE evaluation. Upon receiving a request for CEII, the CEII 
Coordinator shall contact the DOE Office or Federal agency that created 
or maintains the CEII. In consultation with the DOE Office, the CEII 
Coordinator shall determine if the need for CEII and the protection 
afforded to the CEII should result in sharing CEII for the limited 
purpose made in the request. In the event the CEII Coordinator or 
Coordinator's designee denies the request, the requestor may seek 
request for reconsideration, as provided in Sec.  1004.13(i).
    (l) Unauthorized Disclosure.
    (1) Disclosure by submitter of information. If the submitter of 
information discloses to the public information that has received a 
CEII designation, then the Department reserves the right to remove its 
CEII designation.
    (2) Disciplinary Action for Unauthorized Disclosure. DOE employees 
or contractors who knowingly or willfully disclose CEII in an 
unauthorized manner will be subject to appropriate sanctions, including 
disciplinary action under DOE or DOE Office personnel rules or referral 
to the DOE Inspector General.
    (3) In accordance with the Whistleblower Protection Enhancement Act 
of 2012 (Pub. L. 112-199, 126 Stat. 1465), these provisions are 
consistent with and do not supersede, conflict with, or otherwise alter 
the employee obligations, rights, or liabilities created by existing 
statute relating to:
    (i) Classified information,
    (ii) Communications to Congress,
    (iii) The reporting to an Inspector General of a violation of any 
law, rule, or regulation, or mismanagement, a gross waste of funds, an 
abuse of authority, or a substantial and specific danger to public 
health or safety, or
    (iv) Any other whistleblower protection. The definitions, 
requirements, obligations, rights, sanctions, and liabilities created 
by controlling statutory provisions are incorporated into this 
agreement and are controlling.

[FR Doc. 2018-23459 Filed 10-26-18; 8:45 am]
 BILLING CODE 6450-01-P