Federal Register: September 2, 2003 (Volume 68, Number 169)
Rules and Regulations
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 4, 16, 141 and 157
[Docket No. RM03-6-000; Order No. 643]
Amendments to Conform Regulations With Order No. 630 (Critical
Energy Infrastructure Information Final Rule)
July 23, 2003.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: This final rule revises the Federal Energy Regulatory
Commission's regulations requiring companies to make information
directly available to the public under certain circumstances. The
revisions are necessary to conform these regulations to Order No. 630,
which established guidelines for the handling of Critical Energy
Infrastructure Information (CEII). In Order No. 630, the Commission
determined that it must take steps to restrict the availability of
sensitive information about the nation's energy infrastructure so as to
reduce the possibility of terrorist attacks. In doing so, the
Commission explained that CEII would be exempt from disclosure under
the Freedom of Information Act (FOIA). The order set out a definition
of CEII and established procedures for persons with a legitimate need
for such information to follow in seeking access to it. Order No. 630
only covered information submitted to or prepared by the Commission.
The revisions in this final rule address instances in which the
Commission's rules and regulations require companies to make
information available directly to the public. The revisions are
necessary to ensure that protection of CEII is consistent in both
contexts.
EFFECTIVE DATE: The rule will become effective October 23, 2003.
FOR FURTHER INFORMATION CONTACT: Wilbur Miller, Office of General
Counsel, Federal Energy Regulatory Commission, 888 First Street, NW.,
Washington, DC 20426, (202) 502-8953.
SUPPLEMENTARY INFORMATION: Before Commissioners: Pat Wood, III,
[[Page 52090]]
Chairman; William L. Massey, and Nora Mead Brownell.
I. Introduction
1. This final rule makes specific changes to the Commission's
regulations that require companies to make certain information
available directly to the public. The changes are necessary to
reconcile those regulations with Order No. 630, which established
standards and procedures for the handling of Critical Energy
Infrastructure Information (CEII) submitted to or created by the
Commission. 68 FR 9857 (Mar. 3, 2003); III FERC Stats. & Regs. ] 31,140
(Feb. 21, 2003). Because Order No. 630 addressed only situations in
which a person might seek access to CEII that is in the Commission's
possession, further changes to ensure consistent treatment and
protection of CEII are needed where companies possess CEII and are
required by the Commission's regulations to make it available to the
public unconditionally.
2. This final rule revises the Commission's regulations in the
following areas: (1) 18 CFR part 4, which requires that applicants for
hydropower licenses, permits, and exemptions make various types of
information available to the public; (2) 18 CFR part 16, which requires
that applicants for projects subject to sections 14 and 15 of the
Federal Power Act, 18 U.S.C. 807-808, make specified information
available to the public; (3) 18 CFR 141.300, establishing requirements
for filing FERC Form No. 715, Annual Transmission Planning and
Evaluation Report, which requires that portions of the form be made
available to the public by the public utility upon request; and (4) 18
CFR part 157, which governs applications for certificates of public
convenience and necessity, and for orders permitting and approving
abandonment under Section 7 of the Natural Gas Act.
II. Background
3. As explained in the Notice of Proposed Rulemaking (NOPR), 68 FR
18538, 18540 (Apr. 21, 2003), IV FERC Stats. & Regs. ] 32,569 (Apr. 9,
2003), Order No. 630 arose from the Commission's concern that CEII
could be employed by terrorists to engineer attacks against the
nation's energy facilities. The Commission had previously taken steps
to remove various categories of documents that were likely to contain
CEII from public availability through the internet, the Federal Energy
Regulatory Records Information System (FERRIS), and the Commission's
public reference room. 68 FR at 9858. Order No. 630 reaffirmed that
conclusion and established that the Commission would institute
procedures to protect CEII submitted to it. Id.
4. Order No. 630 defined CEII in Sec. 388.113(c)(1) of the
Commission's regulations as information about proposed or existing
critical infrastructure that:
(i) Relates to the production, generation, transportation,
transmission, or distribution of energy;
(ii) Could be useful to a person in planning an attack on critical
infrastructure;
(iii) Is exempt from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. Sec. 552; and
(iv) Does not simply give the location of the critical
infrastructure. 68 FR at 9870. The order defined ``critical
infrastructure'' in Sec. 388.113(c)(2) as:
existing and proposed systems and assets, whether physical or
virtual, the incapacity or destruction of which would negatively
affect security, economic security, public health or safety, or any
combination of those matters.
Id.
5. Order No. 630 adopted a process for submission of CEII to the
Commission that largely parallels the process for submission of
confidential materials in Section 388.112 of the Commission's
regulations. That section now provides that an entity submitting CEII
to the Commission is responsible for identifying and marking CEII with
the legend ``Contains Critical Energy Infrastructure Information--Do
Not Release.'' Information identified as CEII is placed in a nonpublic
file, with the Commission retaining the right to make a determination
whether CEII treatment has been properly claimed. The submitter is
notified in the event any person or entity requests release of the
CEII, and also prior to any release of the information being made. 68
FR at 9870.
6. To handle requests for release of CEII, Order No. 630
established the position of CEII Coordinator. A person desiring access
to CEII must file a written request with the CEII Coordinator
containing the following information:
Requester's name, date and place of birth, title, address, and
telephone number; the name, address, and telephone of the person or
entity on whose behalf the information is requested; a detailed
statement explaining the particular need for and intended use of the
information; and a statement as to the requester's willingness to
adhere to limitations on the use and disclosure of the information
requested. Requesters are also requested to include their social
security number for identification purposes.
68 FR at 9870-71.\1\ The CEII Coordinator will consider the requester's
need for the information, as well as the information's sensitivity. In
the event the request is granted, the CEII Coordinator may impose
conditions upon the requester's use of the information, including the
requirement that the requester sign a non-disclosure agreement.
Determinations by the CEII Coordinator are subject to rehearing under
Sec. 385.713 of the Commission's regulations. Id. at 9870.
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\1\ In an order on rehearing of Order No. 630 being issued
concurrently, the Commission has added the requirement that these
requests be signed by the requester.
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7. The Commission issued the final rule on February 21, 2003. 68 FR
9857 (Mar. 3, 2003), III FERC Stats. & Regs. ] 31,140 (Feb. 21, 2003).
In doing so, it recognized that its regulations in some areas require
companies to make information that might constitute CEII available
directly to the public. Because Order No. 630 addressed only CEII in
the possession of the Commission, this situation created a window of
vulnerability whereby CEII that would be protected under Order No. 630
could become available to persons of malicious intent. This final rule
is intended to close that window. 68 FR at 18540.
A. The NOPR
8. The NOPR identified the following portions of the Commission's
regulations as provisions that might require the disclosure of CEII:
Electric Transmission Provisions
FERC Form No. 715, Annual Transmission Plan and Evaluation Report,
contains information that will likely constitute CEII. For example,
part 2 requires power flow data, part 3 requires system maps and
diagrams, and parts 4 and 5 require transmission planning data. The
instructions to the form require submitting companies to make it
available to the public upon request. 68 FR at 18540.
Natural Gas Provisions
Several provisions of part 157, which governs applications for
certificates of public convenience and necessity and for orders
permitting and approving abandonment, require that information be made
available to the public that might constitute CEII. Information such as
flow diagrams and gas supply data must be supplied on request to
intervenors and made available in central locations in the project
area. These provisions are found in 18 CFR 157.5(d), 157.10(b),
157.22(e)(3)-(4), and 157.203(d). 68 FR at 18540.
[[Page 52091]]
Hydropower Provisions
Part 4, which governs licenses, permits, exemptions and other
applications under the Federal Power Act, requires that applicants make
various types of information about their projects available to the
public, including items such as detailed maps and scientific studies.
Specifically, under 18 CFR 4.32(a)(3), an applicant for a preliminary
license, permit or exemption must provide notification to affected
property owners. Under Sec. 4.32(b)(3)-(4), an applicant must make a
copy of the application and exhibits available to the public for
inspection and copying at specified locations. Under Sec. Sec.
4.34(i)(4)(i) and 4.34(i)(6)(iii), an applicant using alternative
procedures must distribute an information package and maintain a public
file of all relevant documents. Finally, under Sec. 4.38(g), which
provides for pre-filing consultation in the case of an original
license, the applicant must make available for public inspection
various items, including detailed maps and design information. 68 FR
18540. In addition, part 16 of the Commission's hydropower regulations,
which specifies procedures for takeover and relicensing of existing
projects, contains notice provisions that require applicants to make
items such as drawings, diagrams and emergency action plans available
for public inspection. Such provisions are found at 18 CFR 16.7(d)-(e)
and 16.8(i). 68 FR 18540
9. The NOPR also proposed to revise several sections that require
information possibly constituting CEII to be made available to Indian
tribes and other government agencies. Such provisions are found at 18
CFR 4.32(b)(1)-(2), 4.38(b)(1), 4.38(c)(4), 4.38(d), 16.8(b)(1),
16.8(c)(4), and 16.8(d). As explained in the NOPR, the Federal Records
Act, 44 U.S.C. 3510(b), does not require one federal agency to accord
the same treatment to information as another federal agency where the
former receives the information directly from a third party.
Consequently, to ensure consistent treatment of CEII, the Commission
proposed to add provisions for instances where information must be
provided to other agencies and to tribes that would parallel the
proposed provisions applicable to information made available to the
public. The Commission noted that its proposed revisions would not
prohibit a company from sharing CEII with a government agency, but
would only ensure that the Commission's regulations did not require it
to disclose CEII. 68 FR 18541.
10. The changes proposed by the NOPR were intended to parallel the
treatment of CEII under Order No. 630. The NOPR proposed that a company
required by the affected regulations to make available information that
might constitute CEII would make a determination whether the
information was in fact CEII. If it was, the company would omit the
CEII from the information being made available and instead include a
brief statement describing the omitted information without revealing
CEII, and informing the reader of his or her right to challenge the
omission through submission to the CEII Coordinator under the
procedures adopted in Order No. 630 and found in 18 CFR 388.112 and
388.113. The NOPR added that companies would be expected to adhere to
previous determinations made by the Commission or the Coordinator with
respect to specific information. 68 FR 18541.
11. The Commission issued the NOPR on April 9, 2003, and ultimately
received twelve comments.\2\
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\2\ A list of commenters is appended to this order.
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B. Related Orders
12. The Commission on this date is issuing two other orders that
have some bearing on this rulemaking. As noted, one is the order on
rehearing from Order No. 630. The other is a final rule, in RM02-16,
revising the Commission's hydropower licensing procedures. The
hydropower revisions contain provisions requiring companies to make
information available to the public that may constitute CEII.
Consequently, the licensing rulemaking is adding a provision to 18 CFR
part 5 that will parallel the revisions made in this Final Rule.
III. Discussion
13. Some of the comments supported the proposals in the NOPR in
whole or in large part.\3\ Disagreements or suggestions centered on
several areas.
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\3\ MidAmerican Energy Company at pp. 1-3; PJM Interconnection,
L.L.C. at pp. 2-3; Southern California Edison at pp. 1-2.
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A. Availability of Needed Information
14. Some commenters expressed concern that the NOPR, if adopted,
would restrict market opportunities and interfere with other interests
by keeping information away from persons with a legitimate need for it.
One commenter expressed significant concerns that the NOPR would
interfere with the operation of the electric market by making it
difficult for market participants to obtain needed data.\4\ For
example, the Study Group was concerned that information would become
unavailable from OASIS;\5\ that transmission owners would selectively
withhold Form No. 715 information, resulting in discrimination;\6\ that
industry councils would be unable to obtain information for studies and
models, or that some companies would be unable to obtain the studies or
models themselves;\7\ and that intervenors would be unable to obtain
needed information in a timely fashion.\8\ The Study Group specifically
contends that the Commission should enunciate and enforce a
comparability standard to ensure equal access to information.\9\ It
also suggests a system under which CEII owners would be required to
accept OASIS passwords, identification numbers employed by regional
councils, or certifications made by regional transmission organizations
(RTOs) as proof that a person was a suitable recipient. Any dispute
would be appealable to the CEII Coordinator.\10\
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\4\ American Public Power Association & Transmission Access
Policy Study Group (Study Group) at pp. 6-20.
\5\ Id. at 6.
\6\ Id. at 7-9.
\7\ Id. at 10-18, 21.
\8\ Id. at 18-20.
\9\ Id. at 21.
\10\ Id. at 22-23.
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15. Other comments expressed similar concerns. One commenter stated
that the use of the word ``shall'' in the proposed regulations might
lead companies to believe that they were prohibited from disclosing
CEII voluntarily.\11\ The Bonneville Power Administration (BPA) noted
that the Commission cannot prohibit it from disclosing information
pursuant to statutory requirements such as the Freedom of Information
Act (FOIA) and the National Environmental Policy Act (NEPA).\12\ The
Department of Interior (Interior) expressed concern that its access to
information pursuant to its own statutory authorities might be
hampered.\13\
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\11\ Consumers Energy Company at pp. 2-3.
\12\ BPA, at p. 2.
\13\ Interior at pp. 1-3.
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16. The Commission believes that these concerns are misplaced. As
the Commission stated in the NOPR, neither the revisions proposed there
nor in Order No. 630 is intended to require companies to withhold CEII,
or to prohibit voluntary arrangements for sharing information. These
revisions are intended only to ensure that the Commission's regulations
do not require the disclosure of CEII. 68 FR 18541. There is nothing in
these revisions that affects one entity's ability to reach appropriate
arrangements for sharing CEII and the Commission in fact encourages
such arrangements. In many
[[Page 52092]]
cases, companies and persons that have had dealings with one another in
the past will be in a better position than the Commission to judge the
security of such an arrangement. There is thus nothing in these
revisions that would, for example, prevent a regional council from
obtaining data from member companies or from sharing it both with
member and non-member companies. Nevertheless, in new Sec. Sec.
4.32(k)(4), 16.7(d)(4), 141.300(d)(4), and 157.10(d)(4) of the
Commission's regulations, the Commission has added language to the
revisions to make as it as clear as possible that its CEII regulations
do not prohibit or restrict voluntary disclosures of information
pursuant to private arrangements.
17. With respect to the specific concerns raised by these
commenters, the Commission does not believe such concerns are
justified. Nothing in these revisions, or in Order No. 630 for that
matter, addresses OASIS in any way and there should be no impact on it.
The revisions made in this final rule apply only to specific sections
and do not cover the Commission's regulations generally; the Commission
has decided against including a ``catch-all'' provision, as suggested
by one commenter,\14\ so as to avoid such unwanted consequences. The
Commission also does not believe companies should be disadvantaged in
obtaining Form No. 715 data. As Form No. 715 is an annual report, its
timing can be anticipated and gaining access to CEII contained in it
should be possible in a timely manner. Most likely, the same entities
will seek access every year, so that permission in most cases will be
quickly granted. The Commission's numerous statutory mandates are
undergirded by principles of non-discrimination (i.e., comparability).
Thus, these revisions contemplate that all persons with a legitimate
need for CEII will be able to gain access to it with a minimum of
difficulty. The revisions already envision and intend to provide
comparable treatment in access to CEII.
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\14\ National Hydropower Association at p. 6.
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18. The Commission understands the Study Group's concern that CEII
owners might discriminate in making information available to market
participants, but believes that its concern may be premature. Failure
to provide required Form No. 715 data would be a violation of the
Commission's regulations, even without the changes to the regulations
effected by this rule and Order No. 630. The Commission remains
responsible for ensuring that companies comply with its regulations,
and the Commission will not tolerate abuses. Nor does the Commission
believe that this final rule will necessarily do anything to enhance a
CEII owner's ability to engage in such abuses. Form No. 715 data must
still be submitted in full to the Commission. Should a company fail to
disclose the data fully to a requester that has been granted access to
CEII, that failure would be easy to identify. Furthermore, the
Commission anticipates that companies such as the Study Group's members
will have little trouble, and experience little delay, in obtaining
such access. Finally, the Commission wishes to emphasize again that
this final rule affects only those informational provisions that are
specifically listed here. It does not apply generally across the
industries that the Commission regulates. In the case of the electric
market, no requirements are being affected in any way other than Form
No. 715.
19. The Study Group recommended several suggestions to facilitate
access to CEII consistent with security concerns. Their concern is that
whatever process ultimately adopted by the Commission is reliable, non-
discriminatory and easy to use. While we share the Study Group's
concerns with the need to facilitate access, we continue to believe
that the process contained in the final rule is sufficiently
straightforward and should operate quickly in situations involving
access to Form No. 715 data. Moreover, by employing standards set by
outside entities in determining whether to grant access to CEII under
the Commission's regulations, the Study Group's proposals would have
the undesirable effect of requiring the Commission to monitor approval
processes employed by these organizations to ensure that they provided
sufficient security.
20. With respect to access and dissemination of information by
entities such as BPA and Interior, it goes without saying that the
Commission lacks authority to override obligations imposed by statute
or regulation. Clearly, this final rule cannot, and is not intended to,
prevent agencies from complying with the FOIA or NEPA, or to prevent
persons or companies from complying with lawfully enacted regulations
that require the provision of information. Finally, the question of
intervenors obtaining information in a timely fashion was addressed in
Order No. 630. 68 FR 9866.
B. Approval Process
21. Several commenters expressed concerns about the process for
handling requests for access to CEII. Some believed that the process
for approval would be too slow and suggested changes to speed it up.
Some recommended a pre-approval process.\15\ One commenter suggested
that CEII owners be required to provide CEII to persons with OASIS
passwords, or that regional transmission organizations be able to
certify customers for access automatically.\16\ Another suggested a
process whereby a requester must first go to the company, then file a
request with the Coordinator.\17\ One commenter requested assurance
that the Commission will not place requests for access on separate
tracks, the point presumably being that there should not be a ``slow
track.'' \18\
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\15\ Interior at pp. 1-2; Consumers Energy Company at pp. 3-6;
Study Group at pp. 23-24.
\16\ Study Group at p. 22.
\17\ National Hydropower Association at pp. 3-4.
\18\ Northern Natural Gas at pp. 5-6.
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22. Some of the comments about the approval process concerned the
handling of CEII. One suggested that a CEII owner be required to notify
everybody on the service list when information is determined not to be
CEII.\19\ One asked the Commission to establish a time limit in which a
CEII owner must provide information once a request for access has been
granted.\20\ Another suggested that the Commission employ standardized
non-disclosure agreements, and that it specify that a recipient, once
granted access to CEII, be permitted to use it for ongoing business
activities, such as a consultant with more than one client.\21\ The
Study Group also asked the Commission to clarify that, once a requester
is granted access, it may communicate directly with the CEII owner.\22\
One commenter asked that the Commission establish guidelines for the
Coordinator to follow, and suggested that CEII owners be involved in
any negotiations over non-disclosure agreements.\23\ Finally, one
commenter requested that the Coordinator perform a monitoring role
intended to determine whether companies are making required information
available. This commenter stated that outsiders to the system cannot
tell what information is being withheld.\24\
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\19\ Interior at p. 3.
\20\ Northern Natural Gas at p. 4.
\21\ Study Group at pp. 22-23.
\22\ Id. at 24.
\23\ PJM Interconnection, L.L.C. at pp. 3-5.
\24\ Southwest Transmission Dependent Utility Group at pp. 1-2.
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23. All of the above comments address the approval process
generally and, thus, are not appropriate for consideration as part of
this docket. The NOPR proposed to follow the approval
[[Page 52093]]
process already established in Order No. 630 and stated that the
Commission would not revisit issues already addressed in that order. 68
FR 18541. The procedures and guidelines for requesting and obtaining
access to CEII, and for challenging CEII designations, were addressed
at length in Order No. 630. This included timeliness, verification
issues, standards for granting access, and the viability of a pre-
approval process. Id. at 9863-65. Some of these issues are addressed
again in the order on rehearing being issued concurrently. The
Commission will not revisit these issues here.
24. Some clarification is, however, required with respect to
several of these suggestions. The Commission does not have separate
tracks for CEII access requests. There also is nothing in the
Commission's regulations to prevent a requester from directly
contacting a CEII owner, either before or after access is granted.
Finally, the Commission does not believe it would be practical for the
CEII Coordinator to perform a monitoring role. For the most part, the
Commission's various regulations requiring that regulated companies
make information available rely on voluntary compliance, regardless of
whether CEII is involved. The Commission does not believe that the risk
of a company simply flouting the regulations is any greater when CEII
is involved than it has ever been. Existing mechanisms for dealing with
companies that do not comply with their legal responsibilities should
suffice in such situations.
25. This rule, as well as Order No. 630, represents the
Commission's best efforts to achieve a delicate balance between the due
process rights of interested persons to participate fully in its
proceedings and its responsibility to protect public safety by ensuring
that access to CEII does not facilitate acts of terrorism. The
Commission believes that it has struck an appropriate balance; however,
it intends to monitor the experiences under these two rules to ensure
that it has done so. Therefore, in six months the Commission will
solicit public comment to determine whether submitters or requesters of
CEII are experiencing any problems with the new processes.
C. Miscellaneous Issues
26. The Interstate Natural Gas Association of America (INGAA)
suggests that the Commission include 18 CFR 157.18 in the provisions
being revised in this final rule.\25\ That section governs applications
to abandon facilities or service and requires the applicant to file
exhibits, including material, such as flow diagrams and detailed
location information, that likely would include CEII. 18 CFR 157.18(c)
and (g). The section includes only filing requirements, however, rather
than requirements that information be made available to the public.
Consequently, any CEII that the section requires be disclosed should
already be covered by Order No. 630.
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\25\ INGAA at pp. 2-3.
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27. One commenter states that the use of the term ``landowner'' in
proposed 18 CFR 157.6(d)(6) is too restrictive.\26\ The revision as
proposed in the NOPR referred to situations where the regulation might
require disclosure of CEII ``to a landowner.'' The notification
provision is worded more broadly to require notification to ``affected
landowners and towns, communities, and local, state and federal
governments and agencies.'' 18 CFR 157.6(d)(1). The Commission thus has
replaced the phrase ``to a landowner'' with ``to any person.''
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\26\ Northern Natural Gas at p. 3.
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28. The Commission received a suggestion that it establish
procedures specifying how and where information denied CEII treatment
must be made available.\27\ The Commission considers this unnecessary
and potentially confusing, because different situations may be
presented depending on the exact context. If a request that information
be treated as CEII is rejected, then the underlying requirement to
disclose the information remains operative and, absent any other
provision or direction from the Commission, the owning company must
comply as promptly as practicable.
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\27\ Id. at 4-5.
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29. The National Hydropower Association comments that the
Commission should include a provision stating that a company may
withhold information considered to be CEII even though it was made
publicly available before the Commission enacted these revisions.\28\
The Commission agrees with the underlying principle, but considers an
explicit provision unnecessary. Neither Order No. 630 nor this final
rule contains any provision requiring that CEII be disclosed because it
was previously disclosed. In fact, as noted in Order No. 630, the
Commission went to considerable effort to remove from its Web site
documents that previously had been available to the public. 68 FR 9858.
Absent an explicit provision requiring previously available CEII to
remain available, the logical and intended conclusion is that such
information may be removed or made unavailable.
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\28\ National Hydropower Association at p. 6.
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30. The National Hydropower Association also comments that a
company owning CEII should not be required to make the information
available to one requester solely because it was made available to
another requester.\29\ The Commission has already indicated its
agreement with this principle. Order No. 630 explained that access is
to be determined on a case-by-case basis. 68 FR 9864. The fact that one
person or organization has been determined not to present a security
risk obviously does not mean that a different person or organization
would not do so. The Commission cautions owners of CEII, however, that
it will not tolerate abuse of these revisions designed to discriminate
against competitors or otherwise adversely affect competition in the
energy markets. The revised rules are intended solely to enable owners
of CEII to prevent information from getting into a terrorist's hands.
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\29\ National Hydropower Association at p. 5.
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31. INGAA expresses concern over the provision in 18 CFR 157.10(d)
requiring treatment of CEII to adhere to previous determinations,
because companies may not be aware of previous determinations.\30\ This
should rarely be a problem because in most instances the previous
determination will involve information owned by the same company.
Nevertheless, the Commission has added the phrase ``to the extent
practicable'' to new Sec. Sec. 4.32(k)(2), 16.7(d)(2), 141.300(d)(2),
and 157.10(d)(2).
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\30\ INGAA at pp. 3-4.
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32. Except as discussed above, the Commission adopts the proposed
revisions to its regulations.
Information Collection Statement
33. Office of Management and Budget (OMB) regulations require OMB
to approve certain information collection requirements imposed by
agency rule. 5 CFR 1320.12. The public disclosure of information
originally supplied by an agency to the recipient is, however, excluded
from the coverage of the regulations. 5 CFR 1320.3(c)(2). The only
information collection requirement contained in this final rule is a
requirement that companies include a statement outlining the procedures
for seeking access to CEII. Because that statement would be supplied by
the Commission, the information collection regulations do not apply to
this final rule.
[[Page 52094]]
Environmental Analysis
34. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment. Order No.
486, Regulations Implementing the National Environmental Policy Act, 52
FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ]
30,783 (1987). The Commission has categorically excluded certain
actions from this requirement as not having a significant effect on the
human environment.
Included in the exclusion are rules that are clarifying,
corrective, or procedural or that do not substantially change the
effect of the regulations being amended. 18 CFR 380.4(a)(2)(ii). This
rule is procedural in nature and therefore falls under this exception;
consequently, no environmental consideration is necessary.
Regulatory Flexibility Act Certification
35. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C.
Sec. Sec. 601-612, generally requires a description and analysis of
final rules that will have significant economic impact on a substantial
number of small entities. The Commission is not required to make such
analyses if a rule would not have such an effect. The Commission
certifies that this proposed rule, if finalized, would not have such an
impact on small entities.
Document Availability
36. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m.
Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
37. From FERC's Home Page on the Internet, this information is
available in the Federal Energy Regulatory Records Information System
(FERRIS). The full text of this document is available on FERRIS in PDF
and WordPerfect format for viewing, printing, and/or downloading. To
access this document in FERRIS, type the docket number excluding the
last three digits of this document in the docket number field.
38. Assistance is available for FERRIS and the FERC's Web site
during normal business hours. Contact FERC Online Support at
FERCOnlineSupport@ferc.gov or toll free at (866)208-3676, or for TTY,
contact (202)502-8659.
Effective Date
39. These regulations are effective October 23, 2003. The
provisions of 5 U.S.C. 801 regarding Congressional review of final
rules do not apply to this final rule, because the rule concerns agency
procedure and practice and will not substantially affect the rights of
non-agency parties.
List of Subjects
18 CFR Part 4
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 16
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 141
Electric power, Reporting and recordkeeping requirements.
18 CFR Part 157
Administrative practice and procedure, Natural gas, Reporting and
recordkeeping requirements.
By the Commission.
Magalie R. Salas,
Secretary.
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In consideration of the foregoing, the Commission amends Parts 4, 16,
141 and 157, Chapter I, Title 18, Code of Federal Regulations, as
follows:
PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT
COSTS
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1. The authority citation for part 4 continues to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.
0
2. Section 4.32 is amended by adding paragraph (k) to read as follows:
Sec. 4.32 Acceptance for filing or rejection; information to be made
available to the public; requests for additional studies.
* * * * *
(k) Critical Energy Infrastructure Information. (1) If this section
requires an applicant to reveal Critical Energy Infrastructure
Information (CEII), as defined in Sec. 388.113(c) of this chapter, to
any person, the applicant shall omit the CEII from the information made
available and insert the following in its place:
(i) A statement that CEII is being withheld;
(ii) A brief description of the omitted information that does not
reveal any CEII; and
(iii) This statement: ``Procedures for obtaining access to Critical
Energy Infrastructure Information (CEII) may be found at 18 CFR
388.113. Requests for access to CEII should be made to the Commission's
CEII Coordinator.''
(2) The applicant, in determining whether information constitutes
CEII, shall treat the information in a manner consistent with any
filings that applicant has made with the Commission and shall to the
extent practicable adhere to any previous determinations by the
Commission or the CEII Coordinator involving the same or like
information.
(3) The procedures contained in Sec. Sec. 388.112 and 388.113 of
this chapter regarding designation of, and access to, CEII, shall apply
in the event of a challenge to a CEII designation or a request for
access to CEII. If it is determined that information is not CEII or
that a requester should be granted access to CEII, the applicant will
be directed to make the information available to the requester.
(4) Nothing in this section shall be construed to prohibit any
persons from voluntarily reaching arrangements or agreements calling
for the disclosure of CEII.
0
3. Section 4.34 is amended by adding paragraph (i)(9) to read as
follows:
Sec. 4.34 Hearings on applications; consultation on terms and
conditions; motions to intervene; alternative procedures.
* * * * *
(i) Alternative procedures.
* * * * *
(9) If this section requires an applicant to reveal Critical Energy
Infrastructure Information (CEII), as defined by Sec. 388.113(c) of
this chapter, to any person, the applicant shall follow the procedures
set out in Sec. 4.32(k).
0
4. Section 4.38 is amended by adding paragraph (h) to read as follows:
Sec. 4.38 Consultation requirements.
* * * * *
(h) Critical Energy Infrastructure Information. If this section
requires an applicant to reveal Critical Energy Infrastructure
Information (CEII), as defined by Sec. 388.113(c) of this chapter, to
any person, the applicant shall follow the procedures set out in Sec.
4.32(k).
PART 16--PROCEDURES RELATING TO TAKEOVER AND RELICENSING OF
LICENSED PROJECTS
0
5. The authority citation for part 16 continues to read as follows:
Authority: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.
[[Page 52095]]
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6. Section 16.7 is amended by adding paragraph (d)(7) to read as
follows:
Sec. 16.7 Information to be made available to the public at the time
of notification of intent under section 15(b) of the Federal Power Act.
* * * * *
(d) Information to be made available. * * *
(7)(i) If paragraph (d) of this section requires an applicant to
reveal Critical Energy Infrastructure Information (CEII), as defined in
Sec. 388.113(c) of this chapter, to any person, the applicant shall
omit the CEII from the information made available and insert the
following in its place:
(A) A statement that CEII is being withheld;
(B) A brief description of the omitted information that does not
reveal any CEII; and
(C) This statement: ``Procedures for obtaining access to Critical
Energy Infrastructure Information (CEII) may be found at 18 CFR
388.113. Requests for access to CEII should be made to the Commission's
CEII Coordinator.''
(ii) The applicant, in determining whether information constitutes
CEII, shall treat the information in a manner consistent with any
filings that applicant has made with the Commission and shall to the
extent practicable adhere to any previous determinations by the
Commission or the CEII Coordinator involving the same or like
information.
(iii) The procedures contained in Sec. Sec. 388.112 and 388.113 of
this chapter regarding designation of, and access to, CEII, shall apply
in the event of a challenge to a CEII designation or a request for
access to CEII. If it is determined that information is not CEII or
that a requester should be granted access to CEII, the applicant will
be directed to make the information available to the requester.
(iv) Nothing in this section shall be construed to prohibit any
persons from voluntarily reaching arrangements or agreements calling
for the disclosure of CEII.
* * * * *
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7. Section 16.8 is amended by adding paragraph (j) to read as follows:
Sec. 16.8 Consultation requirements.
* * * * *
(j) Critical Energy Infrastructure Information. If this section
requires an applicant to reveal Critical Energy Infrastructure
Information (CEII), as defined by Sec. 388.113(c) of this chapter, to
any person, the applicant shall follow the procedures set out in Sec.
16.7(d)(7).
PART 141--STATEMENTS AND REPORTS (SCHEDULES)
0
8. The authority citation for part 141 continues to read as follows:
Authority: 15 U.S.C. 79; 16 U.S.C. 791a-828c, 2601-2645; 31
U.S.C. 9701; 42 U.S.C. 7101-7352.
0
9. Section 141.300 is amended by adding paragraph (d) to read as
follows:
Sec. 141.300 FERC Form No. 715, Annual Transmission Planning and
Evaluation Report.
* * * * *
(d) Critical Energy Infrastructure Information. (1) If the
instructions in Form No. 715 require a utility to reveal Critical
Energy Infrastructure Information (CEII), as defined in Sec.
388.113(c) of this chapter, to any person, the utility shall omit the
CEII from the information made available and insert the following in
its place:
(i) A statement that CEII is being withheld;
(ii) A brief description of the omitted information that does not
reveal any CEII; and
(iii) This statement: ``Procedures for obtaining access to Critical
Energy Infrastructure Information (CEII) may be found at 18 CFR
388.113. Requests for access to CEII should be made to the Commission's
CEII Coordinator.''
(2) The utility completing Form No. 715, in determining whether
information constitutes CEII, shall treat the information in a manner
consistent with any filings that utility has made with the Commission
and shall to the extent practicable adhere to any previous
determinations by the Commission or the CEII Coordinator involving the
same or like information.
(3) The procedures contained in Sec. Sec. 388.112 and 388.113 of
this chapter regarding designation of, and access to, CEII, shall apply
in the event of a challenge to a CEII designation or a request for
access to CEII. If it is determined that information is not CEII or
that a requester should be granted access to CEII, the utility will be
directed to make the information available to the requester.
(4) Nothing in this section shall be construed to prohibit any
persons from voluntarily reaching arrangements or agreements calling
for the disclosure of CEII.
PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS ACT
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10. The authority citation for part 157 continues to read as follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352.
0
11. Section 157.6 is amended by adding paragraph (d)(6) to read as
follows:
Sec. 157.6 Applications; general requirements.
* * * * *
(d) Landowner notification.
* * * * *
(6) If paragraph (d)(3) of this section requires an applicant to
reveal Critical Energy Infrastructure Information (CEII), as defined by
Sec. 388.113(c) of this chapter, to any person, the applicant shall
follow the procedures set out in Sec. 157.10(d).
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12. Section 157.10 is amended by adding paragraph (d) to read as
follows:
Sec. 157.10 Interventions and protests.
* * * * *
(d) Critical Energy Infrastructure Information. (1) If this section
requires an applicant to reveal Critical Energy Infrastructure
Information (CEII), as defined in Sec. 388.113(c) of this chapter, to
the public, the applicant shall omit the CEII from the information made
available and insert the following in its place:
(i) A statement that CEII is being withheld;
(ii) A brief description of the omitted information that does not
reveal any CEII; and
(iii) This statement: ``Procedures for obtaining access to Critical
Energy Infrastructure Information (CEII) may be found at 18 CFR
388.113. Requests for access to CEII should be made to the Commission's
CEII Coordinator.''
(2) The applicant, in determining whether information constitutes
CEII, shall treat the information in a manner consistent with any
filings that applicant has made with the Commission and shall to the
extent practicable adhere to any previous determinations by the
Commission or the CEII Coordinator involving the same or like
information.
(3) The procedures contained in Sec. Sec. 388.112 and 388.113 of
this chapter regarding designation of, and access to, CEII, shall apply
in the event of a challenge to a CEII designation or a
[[Page 52096]]
request for access to CEII. If it is determined that information is not
CEII or that a requester should be granted access to CEII, the
applicant will be directed to make the information available to the
requester.
(4) Nothing in this section shall be construed to prohibit any
persons from voluntarily reaching arrangements or agreements calling
for the disclosure of CEII.
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13. In Sec. 157.14, paragraph (a) introductory text is amended by
adding the following sentence at the end, to read as follows:
Sec. 157.14 Exhibits.
(a) To be attached to each application. * * * If this section
requires an applicant to reveal Critical Energy Infrastructure
Information (CEII), as defined by Sec. 388.113(c) of this chapter, to
any person, the applicant shall follow the procedures set out in Sec.
157.10(d).
* * * * *
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14. In Sec. 157.16, the introductory text is amended by adding the
following sentence at the end to read as follows:
Sec. 157.16 Exhibits relating to acquisitions.
* * * If this section requires an applicant to reveal Critical
Energy Infrastructure Information (CEII), as defined by Sec.
388.113(c) of this chapter, to any person, the applicant shall follow
the procedures set out in Sec. 157.10(d).
* * * * *
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15. Section 157.22 is amended by adding paragraph (e)(9) to read as
follows:
Sec. 157.22 Collaborative procedures for applications for
certificates of public convenience and necessity and for orders
permitting and approving abandonment.
* * * * *
(e) * * *
(9) If paragraphs (e)(3) or (e)(4) of this section require an
applicant to reveal Critical Energy Infrastructure Information (CEII),
as defined by Sec. 388.113(c) of this chapter, to any person, the
applicant shall follow the procedures set out in Sec. 157.10(d).
* * * * *
0
16. Section 157.203 is amended by adding paragraph (d)(4) to read as
follows:
Sec. 157.203 Blanket certification.
* * * * *
(d) Landowner notification. * * *
(4) If paragraphs (d)(1) or (d)(2) of this section require an
applicant to reveal Critical Energy Infrastructure Information (CEII),
as defined by Sec. 388.113(c) of this chapter, to any person, the
applicant shall follow the procedures set out in Sec. 157.10(d).
Note: The following appendix will not be published in the Code
of Federal Regulations.
Appendix--List of Commenters
American Public Power Association and Transmission Access Policy
Study Group
Bonneville Power Administration
Consumers Energy Company
Interstate Natural Gas Association of America
ISO New England
Mid-American Energy Company
National Hydropower Association
Northern Natural Gas
PJM Interconnection, L.L.C.
Southern California Edison
Southwest Transmission Dependent Utility Group
United States Department of the Interior
[FR Doc. 03-19606 Filed 8-29-03; 8:45 am]
BILLING CODE 6717-01-P