UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Before Commissioners: Pat Wood, III, Chairman;
Nora Mead Brownell, Joseph T.
Kelliher,
and Suedeen G. Kelly.
Critical Energy Infrastructure Docket Nos.RM02-4-
002
Information PL02-1-002
RM03-6-001
NOTICE SOLICITING PUBLIC COMMENT
(Issued February 13, 2004)
1.On July 23, 2003, the Federal Energy Regulatory Commission
(the Commission) issued two final rules - Order Nos. 630-A
and 643 - involving critical energy infrastructure
information (CEII).[1] Order No. 630-A, the order on
rehearing of Order No. 630, which was issued on February 21,
2003,[2] provided further instruction on filing, handling,
and processing requests for CEII found in Commission
records. Order No. 643 was a companion rule that addressed
then-existing requirements that companies make certain
information publicly available that the Commission itself
treated as non-public under newly-issued Order No. 630. The
intent of Order No. 643 was to revise requirements that
applied to the companies' release of CEII to be consistent
with the way in which the Commission was treating that same
information. No one sought rehearing of Order No. 643, and
no one appealed either rule.
2.In each of the orders, the Commission noted that the two
rules "represent[ed] 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."
Order No. 630-A, 68 Fed. Reg. 46,456 at P 18; Order No. 643,
68 Fed. Reg. 52,089 at P 25. At the same time, the
Commission committed to solicit public comment after six
months in order to identify any potential problems with the
treatment of CEII under the two orders. Id. This notice
provides an opportunity for those with experience under
Order Nos. 630, 630-A, and 643 to comment on their
experiences under those orders. Such comments are due
within 30 days of the date of issuance of this notice.
BACKGROUND
3.The final rule issued in Order No. 630 was the result of
over a year of consideration and discussion at the
Commission. The effort began shortly after the attacks of
September 11, 2001 with the issuance of a policy statement
in PL02-1-000 (the Policy Statement), which discussed the
recent removal of certain previously-public records from
public access through the Public Reference Room, the
Commission's document retrieval system, and the Internet.
See Statement of Policy on Treatment of Previously Public
Documents, 66 Fed. Reg. 52,917 (Oct. 18, 2001), 97 FERC *
61,130 (2001). The documents affected by the Policy
Statement were documents including oversized maps that
detailed the specifications of facilities licensed or
certified by the Commission. The Policy Statement advised
the public to request such information pursuant to the
Freedom of Information Act (FOIA) process that is detailed
in 5 U.S.C. * 552 and in the Commission's regulations at 18
C.F.R. * 388.108.
4.Within a few months, the Commission issued a notice of
inquiry (the NOI) as the next step in the process. In this
same issuance, the Commission provided guidance to those
filing information that might warrant non-public treatment
under the Policy Statement. See Notice of Inquiry and
Guidance for Filings in the Interim, 67 Fed. Reg. 3,129
(Jan. 23, 2002), FERC Stats. & Regs. * 35,542 (2002). The
NOI labeled the information the Commission was seeking to
protect as "critical energy infrastructure information, or
CEII," but asked for public comment on how to define the
scope of the term. In addition, the NOI invited comment on
the legal authority to protect CEII (including applicability
of FOIA exemptions), requester verification and access
issues, use of non-disclosure agreements, and the process
for requesting CEII.
5.In September 2002, the Commission issued a notice of
proposed rulemaking regarding CEII (the NOPR). 67 Fed. Reg.
57,994 (Sept. 13, 2002); FERC Stats. & Regs. * 32,564
(2002). The NOPR proposed an expanded definition of CEII to
include detailed information about proposed facilities as
well as those already licensed or certificated. In
addition, it proposed a new process that would enable the
Commission to restrict general public access to CEII while
at the same time permitting those with a need for the
information to obtain it in a timely manner. To that end,
the NOPR proposed a supplement to the FOIA request process
that would enable requesters to get access to CEII that was
otherwise exempt from mandatory disclosure under the FOIA.
Under the proposed process, requesters would have to provide
limited personal information about themselves and their need
for the information. This information would be considered
in determining whether or not to grant the request. In
addition, release would generally be contingent upon the
requester agreeing to abide by the terms of an appropriate
non-disclosure agreement.
6.On February 21, 2003, the Commission issued Order No. 630,
the final rule on CEII. The final rule defined CEII to
include information about proposed facilities, and to
exclude information that simply identified the location of
the infrastructure. In addition, the Commission's related
definition of "critical infrastructure" was broad enough to
cover virtually all facilities within its jurisdiction. The
Commission declined to limit protection to "high risk"
projects or facilities, opting instead to include virtually
all facilities and components, including computer systems
that control or form part of the energy infrastructure.
7.After receiving a request for rehearing on Order No. 630,
the Commission issued Order No. 630-A on July 23, 2003,
denying the request for rehearing, but amending the rule in
several respects. Specifically, the order on rehearing made
several minor procedural changes and clarifications, added a
reference in the regulation regarding the filing of non-
Internet public (NIP) information, a term first described in
Order No. 630, and added a commitment to review the
effectiveness of the new process after six months. This
notice is intended to facilitate such a review.
8.As a separate but related matter, shortly after the
Commission issued Order No. 630, it issued a notice of
proposed rulemaking in RM03-6 that identified portions of
the Commission's regulations that might require companies to
disclose information that would be deemed CEII under the
standards set forth in Order No. 630. See 68 Fed. Reg.
18,538, (Apr. 21, 2003), FERC Stats. & Regs. * 32,569
(2003). The goal in RM03-6 was to identify and implement
any regulatory changes necessary to reconcile regulations
requiring companies' disclosure of information with the
standards and procedures in Order No. 630 for handling CEII
that is submitted to or created by the Commission. In that
way, the Commission attempted to ensure that protection of
CEII was consistent whether the information was being sought
through the Commission or through the company.
9.On July 23, 2003, the Commission issued Order No. 643,
Amendments to Conform Regulations with Order No. 630
(Critical Energy Infrastructure Information Final Rule), 68
Fed. Reg. 52,089 (Sept. 2, 2003), FERC Stats. & Regs. *
31,149 (2003). The provisions in Order No. 643 were not
intended to require that companies withhold CEII, rather
they were intended to eliminate existing requirements to
disclose information that may qualify for CEII treatment by
the Commission. Order No. 643 explicitly stated that
"[t]here 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." 68 Fed. Reg. 52,089 at P 16. The final rule
made necessary revisions to provisions in 18 CFR Parts 4,
16, 141 and 157, and made the same commitment as in Order
No. 630-A to review the effectiveness of the changes after
six months. This notice is intended to facilitate the
required "public comment to determine whether submitters or
requesters of CEII are experiencing any problems with the
new processes." Id. at P 25.
EXPERIENCE TO DATE
10.Order Nos. 630, 630-A, and 643 became effective on April 2,
2003, September 5, 2003, and October 23, 2003, respectively.
Since April 2003, the Commission has received many filings
where the submitters have requested non-public treatment of
documents as containing CEII. At the same time, the
Commission's staff has designated certain internally
generated documents as CEII. Nevertheless, the Commission
has received no complaints that any participant in a
Commission proceeding could not get access to a document in
order to participate meaningfully in the proceeding.
Likewise, the Commission has received no complaints from
other members of the public with a demonstrated need for a
document containing CEII.[3] As the Commission indicated in
Order No. 630, it intended to process requests for CEII as
expeditiously as possible. That goal, in large part, as set
out below, has been accomplished.[4]
11.Staff follows several steps in processing requests for
CEII. Once a request is received, the appropriate staff
searches for the document requested and provides the
document to legal staff with a recommendation regarding
whether or not the information qualifies as CEII. In cases
where the requested document was submitted to the Commission
with a request for CEII treatment, the Associate General
Counsel for General Law notifies the submitter that the
Commission has received a request for the document, and
gives the submitter a period of at least five days in which
to comment both on release to the particular requester and
the non-public nature of the document itself. Each time a
document is requested, the submitter receives a notice and
opportunity to comment on release to that particular
requester. With all requests, Commission staff reviews the
document to determine whether it qualifies as CEII, verifies
the requester's identity and need for the information
requested, and seeks to obtain an appropriate non-disclosure
agreement from the requester. Where the submitter of the
document provides information regarding the request or
requester, the staff factors such information into its
recommendation to the CEII Coordinator. When the request
involves a Commission-generated document, the CEII
Coordinator releases the document to the requester at the
time the decision to release is made. In cases where the
document has been submitted to the Commission, the CEII
Coordinator renders a decision on release, but release of
the document is delayed by at least five days to give the
submitter notice prior to release of the document. Because
of the required notice and comment period and the notice
prior to release, it usually takes staff more time to
process requests for documents submitted to the Commission
than those that are internally generated.
12.As of January 23, 2004, the Commission had received 126
requests for CEII filed under the procedures laid out in
Section 388.113 of the Commission's regulations. See 18
C.F.R. * 388.113. These requests encompassed 2,230
documents. As of February 4, 2004, the Commission has
granted or otherwise closed out 119 of these requests.[5]
None of the remaining requests has exceeded the suggested
time limits for responding to such requests. The Commission
has denied only seven requests, either in whole or in part.
In three instances, the Commission denied the request in
whole or in part because the information was subject to the
attorney-client, attorney work product or deliberative
process privileges. The Commission generally does not
intend to release such information, regardless of whether or
not it falls within the definition of CEII. The Commission
denied four other requests because the requester did not
agree to the terms of an appropriate non-disclosure
agreement. In addition to formal requests for CEII under 18
C.F.R. * 388.113, Commission staff also received 171 direct
requests from owners or operators of facilities for 282
documents containing CEII relating to their own facilities.
Staff satisfied those requests, generally within a few days
of receipt.
13.As noted, Order Nos. 630-A and 643 committed to examine the
functioning of the new rules after six months, and specified
that the Commission would seek public comments regarding the
processes at that time. This notice invites the public to
comment on any problems they have experienced under the new
procedures, or to suggest ways to improve the processes.
#
The Commission orders:
Comments regarding the processes established in Order Nos.
630, 630-A, and 643 should be filed with the Office of the
Secretary within 30 days of the issuance of this order.
By the Commission.
( S E A L )
Magalie R. Salas,
Secretary.
Footnotes
[1] Critical Energy Infrastructure Information, Order No. 630-A,
68 Fed. Reg. 46,456 (Aug. 6, 2003), FERC Stats. & Regs. * 31,147
(2003); Amendments to Conform Regulations with Order No. 630,
Order No. 643, 68 Fed. Reg. 52,089 (Sept. 2, 2003), FERC Stats. &
Regs. * 31,149 (2003).
[2] Critical Energy Infrastructure Information, Order No. 630, 68
Fed. Reg. 9,857 (Mar. 3, 2003), FERC Stats. & Regs. * 31,140
(2003).
[3] Commission action on CEII requests is delegated to the CEII
Coordinator, whose decisions are subject to rehearing. No one
has filed a request for rehearing of any of the decisions
rendered to date.
[4] In the early months of processing CEII requests, the
Commission experienced some technical difficulties, in particular
with respect to the reproduction of Form No. 715. Those
difficulties, which have now been resolved, caused some delay in
responding to the initial requests for that form.
[5] In thirteen instances, the requested information was not
CEII, and could be made public. In twelve other cases, the
requesters and submitters dealt directly with each other, and the
requests were subsequently withdrawn.