[Federal Register: October 3, 2006 (Volume 71, Number 191)]
[Proposed Rules]
[Page 58325-58330]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 388
[Docket No. RM06-23-000]
Critical Energy Infrastructure Information
Issued September 21, 2006.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission is proposing to
revise its regulations to: Allow an annual certification for repeat
requesters of Critical Energy Infrastructure Information (CEII); allow
an authorized representative to file an executed non-disclosure
agreement; make the Freedom of Information Act (FOIA), 5 U.S.C. 552
(2000) fee schedule applicable to CEII requests; provide CEII appeal
rights that are compatible with FOIA appeal rights; grant landowners
the right to obtain alignment sheets directly from Commission staff;
and abolish the non-Internet public category of information. This
notice of proposed rulemaking also seeks comments on the CEII portions
of various forms and reports submitted to the Commission. The proposed
rule offers a more efficient process for handling CEII requests and
provides submitters of CEII with guidance on what materials the
Commission accepts as containing CEII.
DATES: Comments are due November 2, 2006. Reply Comments are due
November 17, 2006.
ADDRESSES: You may submit comments, identified by Docket No. RM06-23-
000, by one of the following methods:
Agency Web site: http://ferc.gov. Follow the instructions
for submitting comments via the eFiling link found in the Comment
Procedures Section of the preamble.
Mail: Commenters unable to file comments electronically
must mail or hand deliver an original and 14 copies of their comments
to: Federal Energy Regulatory Commission, Secretary of the Commission,
888 First Street, NE., Washington, DC 20426. Please refer to the
Comment Procedures Section of the preamble for additional information
on how to file paper comments.
FOR FURTHER INFORMATION CONTACT: Teresina A. Stasko, Office of the
General Counsel, GC-13, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426; 202-502-8317.
SUPPLEMENTARY INFORMATION:
Introduction
1. In the three years since the issuance of Order No. 630, the
Commission has continually monitored and evaluated the effectiveness of
the Critical Energy Infrastructure Information (CEII) process. Critical
Energy Infrastructure Information, Order No. 630, 68 FR 9857 (Mar. 3,
2003), FERC Stats. & Regs. ] 31,140 (2003); order on reh'g, Order No.
630-A, 68 FR 46456 (Aug. 6, 2003), FERC Stats. & Regs. ] 31,147 (2003).
The most recent review indicates that changes are needed to assure the
rules work in the manner intended. As explained below, the Commission
seeks comments on: (1) Revisions to its regulations regarding CEII
requests; (2) the limited portions of various forms and reports the
Commission now defines as containing CEII; and (3) its proposal to
abolish the non-Internet public (NIP) designation. In a final rule and
notice of regulatory changes issued concurrently with this notice of
proposed rulemaking, the Commission: (1) Makes the following changes to
its regulations (a) the definition of CEII is clarified, and (b)
requesters are required to submit executed non-disclosure agreements
(NDA) with their requests; (2) provides notice that, for CEII requests,
the notice and opportunity to comment on a request will be combined
with the notice of release; and (3) reiterates its requirement that
submitters segregate CEII from other information and file as CEII only
information which
[[Page 58326]]
truly warrants being kept from public access.
2. The proposed rule (1) offers a more efficient process for
handling CEII requests and (2) provides submitters with guidance on
what materials the Commission accepts as containing CEII.
Background
3. The Commission began its efforts with respect to CEII shortly
after the attacks of September 11, 2001. See Statement of Policy on
Treatment of Previously Public Documents, 66 FR 52917 (Oct. 18, 2001),
97 FERC ] 61,130 (2001). The Commission's initial step was to remove
from its public files and Internet page documents such as oversized
maps that were likely to contain detailed specifications of facilities
licensed or certified by the Commission, directing the public to
request such information pursuant to the Freedom of Information Act
(FOIA) process detailed in 5 U.S.C. 552 (2000) and in the Commission's
regulations at 18 CFR 388.108 (2001). In September 2002, the Commission
issued a notice of proposed rulemaking regarding CEII, which proposed
an expanded definition of CEII to include detailed information about
proposed facilities as well as those already licensed or certificated
by the Commission. Notice of Rulemaking and Revised Statement of
Policy, 67 FR 57994 (Sept. 13, 2002); FERC Stats. & Regs. ] 32,564
(2002). The Commission issued its final rule on CEII on February 21,
2003, defining CEII to include information about proposed facilities,
and to exclude information that simply identified the location of the
infrastructure. Order No. 630, 68 FR 9857, FERC Stats. & Regs. ]
31,140. 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. Order No.
630-A, 68 FR 46456, FERC Stats. & Regs. ] 31,147. Specifically, the
order on rehearing made several minor procedural changes and
clarifications, added a reference in the regulation regarding the
filing of NIP information, a term first described in Order No. 630, and
added the aforementioned commitment to review the effectiveness of the
new process after six months. Also on July 23, 2003, the Commission
issued Order No. 643, which revised the Commission's regulations to
require companies to make certain information available directly to the
public under certain circumstances. These revisions were necessary to
conform the regulations to Order No. 630. Order No. 643, 68 FR 52089,
FERC Stats. & Regs. ] 31,149 (2003). In Order No. 662, the Commission
modified its CEII regulations to ease the burden on agents of owners or
operators of energy facilities that are seeking CEII relating to the
owner/operator's own facility. The rule also simplified Federal
agencies' access to CEII. Order No. 662, 70 FR 37031, FERC Stats. &
Regs. ] 31,189 (2005).
Proposed Revisions to Regulations
A. Section 388.113--Accessing Critical Energy Infrastructure
Information
4. The Commission proposes to revise Sec. 388.113 of its
regulations to allow an annual certification for repeat requesters,
i.e., repeat requesters would not be required to file a new non-
disclosure agreement (NDA) with each subsequent request. The current
regulation sets forth a process where a requester provides to the CEII
Coordinator detailed information about the requester and his or her
need for the information, which the CEII Coordinator uses in
determining whether to release the information. The proposed regulation
would provide that a requester provide such detailed information with
an initial request. Once the CEII Coordinator determines that the
requester does not pose a security risk, the requester would not have
to provide such detailed information with subsequent requests during
the calendar year. This would decrease the processing time of requests
as Commission staff would not have to verify the requester with
subsequent requests. It is important to note that the CEII Coordinator
would continue to carefully consider submitters' responses that
identify security risks associated with releasing CEII to particular
requesters.
5. With each subsequent request, the requester would still be
required to provide detailed information as to why he or she needs the
information. Such need would be implicated, for example, if the
requester is an intervener in a proceeding or a landowner affected by a
proposed facility. Such individuals may require access to information
in order to participate meaningfully in the proceeding. The requester
would also be required to attest that the information supplied with an
initial request has not changed.
6. The Commission also proposes to revise Sec. 388.113 of its
regulations to allow an authorized representative of an organization to
execute an NDA on behalf of all that organization's employees. The
Commission would verify an organization and require that the
organization verify its own users. In the event of an unauthorized
disclosure of CEII by a member or employee of the organization, the
Commission will hold the authorized representative and the entity
accountable and take all action available to the Commission to deal
with the violation. Repeat requests would be subject to the annual
certification described above.
7. The Commission further proposes to revise Sec. 388.113 of its
regulations to include a fee provision. Commission staff currently
expends valuable time and resources searching, reviewing, and copying
documents responsive to CEII requests. The current regulations would be
modified to follow the fee schedule used for FOIA requests.
8. Another regulatory change the Commission proposes is to revise
18 CFR Sec. 388.113(d)(3)(ii). Currently, the CEII Coordinator, or his
or her designee, issues a delegated order in response to a CEII
request. Section 388.113(d)(3)(ii) provides that this decision is
subject to rehearing pursuant to Sec. 375.713 of the Commission's
regulations. The Commission proposes that CEII determinations no longer
be subject to rehearing. As explained below, CEII requests would be
processed in a manner similar to other requests for non-public
information.
9. The September 11, 2001 attacks prompted the Commission to remove
from easy public access previously public documents that detail the
specifications of proposed or existing energy facilities licensed or
certificated by the Commission. Before the attacks, the Commission was
never faced with such security issues. Therefore, in these early days
of CEII, the Commission sought to reconcile its regulatory
responsibilities under its enabling statutes and Federal environmental
laws with the need to protect the safety and well being of American
citizens from attacks on our nation's energy infrastructure. To that
end, the Commission allowed the CEII Coordinator, or her designee, to
make CEII determinations by delegated orders, which are subject to
rehearing.
10. In light of over three years experience processing CEII
requests, the Commission now finds that CEII determinations need not be
made by delegated orders. In making this determination, the Commission
is in no way compromising the security of the information or unduly
restricting the public access to it.
11. Under existing procedures, a request for rehearing concerning a
CEII determination is reviewed by the entire Commission and is then
subject to review by the appropriate appellate court. See 18 CFR
385.713 (2006). Other
[[Page 58327]]
than CEII requests, when the Commission makes a determination regarding
the release of non-public information, it is not subject to rehearing.
For example, by statute, when the agency informs a requester of non-
public information, i.e. a FOIA requester, of the reason(s) for
withholding information, the requester is limited to filing an
administrative appeal to the Commission's General Counsel, with no
right to a Commission rehearing. This promotes judicial economy and
preserves Commission resources. If the requester is dissatisfied with
the General Counsel's determination, the requester must seek a de novo
review in a U.S. District Court prior to going before an appellate
court. 18 CFR 388.108(c)(1), 388.110 (2006).
12. The Commission emphasizes that CEII, like other non-public
documents, is maintained in the Commission's non-public files pursuant
to Sec. 388.107 of its regulations. The Commission's determination to
place CEII or other non-public information in its non-public files or
to release such information need not be done by a Commission order
which allows the right to rehearing. Rather, a release of CEII should
be processed similarly to the release of other non-public information
specified in Sec. 388.107 of its regulations. Therefore, the
Commission proposes that the CEII Coordinator, or her designee, issue a
letter providing notice of a determination to grant or deny a CEII
request. As CEII by definition is exempt from release under the FOIA,
the Commission's determination to release CEII is a voluntary one that
is analogous to a discretionary release under the FOIA. Accordingly, a
dissatisfied CEII requester may seek the information pursuant to the
FOIA and may ultimately pursue a remedy in district court pursuant to
the court's jurisdiction under the FOIA. A dissatisfied submitter may
seek injunctive relief similar to that sought in a reverse FOIA
action.\1\ Thus, even though the Commission would no longer subject
CEII determinations to rehearing, comparable administrative and
judicial remedies remain available.
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\1\ The Court of Appeals for the District of Columbia Circuit
has defined a ``reverse'' FOIA action as one in which the
``submitter of information--usually a corporation or other business
entity'' that has supplied an agency with ``data on its policies,
operations or products--seeks to prevent the agency that collected
the information from revealing it to a third party in response to
the latter's FOIA request.'' CNA Fin. Corp. v. Donovan, 830 F.2d
1132, 1133 n.1 (D.C. Cir. 1987).
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13. In revised Sec. 388.113(d), the Commission proposes to grant
access to alignment sheets filed pursuant to Sec. 380.12(3) of the
Commission's regulations to landowners for the route across or in the
vicinity of their property. Such landowners would be able to obtain
alignment sheets from the CEII Coordinator without submitting an NDA.
Thus, landowners will not be restricted from discussing the information
shown in the detailed alignment sheets with others even though the
detailed alignment sheets are CEII. The Commission encourages
landowners to first request this information from applicants.
B. Section 388.112--Requests for Special Treatment of Documents
Submitted to the Commission
14. By way of background, in Order No. 630, the Commission
explained that it considers the following types of gas and hydropower
location information outside the definition of CEII: (1) USGS 7.5-
minutes topographic maps showing the location of pipelines, dams, or
other aboveground facilities; (2) alignment sheets showing the location
of pipeline and aboveground facilities, right of way dimensions, and
extra work areas; (3) drawings showing site or project boundaries,
footprints, building locations and reservoir extent; and (4) general
location maps. In order to alleviate concerns about making this
information so easily available, the Commission instructed filers to
segregate this non-CEII location information into a separate volume or
appendix, clearly label it NIP, and submit it with instructions that it
not be placed on the Internet. The information remained, and still
remains, publicly available through the Public Reference Room.
15. The NIP designation has resulted in much confusion, with many
individuals utilizing the CEII or the FOIA procedures in an effort to
obtain NIP information. The Commission proposes to abolish the NIP
designation. The Commission has concluded that there is little to be
gained by protecting information that can be gleaned from a visual
inspection of the facility, or that is otherwise easily attainable from
other sources, such as the United States Geological Survey or
commercial mapping firms. See 67 FR 57994, 58000. Most of the
information designated as NIP is readily available on the Internet. For
companies that currently file maps showing simply the location of
pipeline and aboveground facilities as NIP, they would file these
documents as public. For companies that file detailed alignment sheets
pursuant to Sec. 380.12(c)(3) of the Commission's regulation, they
would all be filed as CEII. We note that this proposed change would be
prospective and any documents currently filed as NIP would retain that
designation.
Proposed Revisions to CEII Designation for Information Collected
16. The CEII process was not intended as a mechanism for companies
to withhold from public access information that does not pose a risk of
attack on the energy infrastructure. Therefore, in an effort to achieve
proper designation while avoiding misuse of the CEII designation, the
Commission requires submitters to segregate public information from
CEII and to file as CEII only information which truly warrants being
kept from ready public access. To this end, the Commission emphasizes
that the Commission's regulation at 18 CFR 388.112(b)(1) requires that
submitters provide a justification for CEII treatment. The way to
properly justify CEII treatment is by describing the information for
which CEII treatment is requested and explaining the legal
justification for such treatment.
17. The Commission retains its concern for CEII filing abuses and
will take action against applicants or parties who knowingly misfile
information as CEII, including rejection of an application where
information is mislabeled as CEII. The Commission offers the following
proposals on how various types of documents should be filed. We note
that these proposals are for prospective filings. All documents
currently filed at the Commission will retain their current
designations. The Commission directs the Director of the Office of
External Affairs to post on the Commission's Web site, from time to
time, clarifying guidelines regarding CEII.
A. Guidelines for Filing Resource Report 13
18. These proposed guidelines provide instructions on how to file
Resource Report 13. In the Commission's experience, Resource Report 13
contains public information, CEII, and privileged information. It is
imperative that the information submitted be filed in its proper
designation. Pursuant to 388.112(b) of the Commission's regulations,
these designations must be clearly labeled and filed as separate
volumes. The Commission emphasizes that submitters must segregate
public information, CEII, and privileged information and file them in
separate volumes. Further, submitters must only file as CEII or
privileged information which truly warrants exemption from ready public
access.
[[Page 58328]]
1. Public
19. The filing of Resource Report 13 should include a public volume
for posting on eLibrary. In general, narratives such as descriptions of
facilities and processes are public. However, if there are specific
engineering details or design details of a critical infrastructure in
narrative form, the information may be CEII or privileged. Examples of
public aspects of Resource Report 13 include design, engineering, and
operating philosophies, as well as general descriptions of hazard
detection and control.
2. CEII
20. Only limited information meets the CEII category and should be
filed as such. CEII only includes specific engineering and detailed
design information about liquefied natural gas facilities, components,
tanks, and systems. Examples of CEII include: Detailed piping and
instrumentation diagrams; equipment and tank detail drawings; and
detailed hazard detection and control location specifics.
3. Privileged
21. In general, manufacturer's proprietary or business confidential
design information, and cultural resource reports are examples of
privileged documents. Privileged documents are generally documents that
are exempt from release pursuant to an act of Congress. For example,
cultural resources may be exempt from release pursuant to the National
Historic Preservation Act and should be filed as privileged. Also,
material which a submitter can justify as exempt from public release
pursuant to FOIA exemption 4 should be filed under this criterion. In
order to qualify for Exemption 4 protection, the information must be
(1) commercial or financial, (2) obtained from a person, and (3)
privileged or confidential. Generally, in order to be ``confidential''
for purposes of Exemption 4, disclosure of the information must either
impair the government's ability to obtain similar information in the
future, or cause substantial harm to the competitive position of the
submitter of the information. See National Parks & Conservation Ass'n
v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
B. Guidelines for Filing Natural Gas Pipeline Flow Diagrams and
Associated Information
22. These proposed guidelines provide instructions on how to file
natural gas pipeline flow diagrams and associated information including
the diagrams filed in Exhibits G and G-1 of pipeline certificate
applications, Exhibit V of abandonment applications, FERC Form 567, and
other flow diagrams submitted for the analysis of gas pipeline
applications.
23. In general, natural gas pipeline flow diagrams are considered
CEII. However, supporting information submitted with these flow
diagrams often contains information that should be public. In the
Commission's experience, information filed with the flow diagrams
contains public information, CEII, and privileged information. Again,
it is crucial that the information submitted be filed in its proper
designation and in separate, clearly labeled volumes. See 18 CFR
388.112(b) (2006).
1. Public
24. In general, narratives such as descriptions of facilities and
processes are public. However, if there are specific engineering
details and design details of a critical infrastructure in narrative
form, the information may be CEII or privileged. Examples of public
information include design assumptions, engineering and operating
philosophies, most design specifications of equipment and pipelines,
and narrative descriptions of pipeline operations.
2. CEII
25. CEII only includes specific engineering and detailed design
information about pipeline facilities, components, and equipment.
Examples of CEII include detailed natural gas flow diagrams filed in
Exhibits G and G-1 of pipeline certificate applications, Exhibit V of
abandonment applications, and FERC Form No. 567. Also, pipeline
computer simulation models may be considered CEII unless they contain
proprietary or business confidential information, in which case they
should be filed as privileged.
3. Privileged
26. In general, documents containing manufacturer's proprietary or
business confidential design information are examples of privileged
documents. Material which a submitter can justify as exempt from public
release pursuant to FOIA exemption 4 should be filed under this
criterion.
C. Guidelines for Filing Documents Pertaining to the Commission's
Division of Dam Safety and Inspections
27. These proposed guidelines provide further instructions on how
to file documents relating to hydropower projects with the Commission's
Division of Dam Safety and Inspections (D2SI). Some D2SI documents
contain only public information and some only CEII. In general, D2SI
documents are not filed with a claim of privilege.
1. Public
28. In general, narratives such as descriptions of facilities and
processes are public. However, if there are specific engineering
details and design details of a critical infrastructure in narrative
form, the information may be CEII or privileged. Examples of public
information include general design, engineering, and operating
philosophies.
2. CEII
29. Only limited information meets this category and should be
filed as CEII. CEII only includes engineering, security, and detailed
design information about proposed or existing critical infrastructure.
Examples of CEII include detailed drawings and specifications,
numerical analyses in inspection reports, dam safety and technical
reports, emergency action plans, hazard classification, construction
design reports, public safety plans, and extreme event reports.
D. Guidelines for Filing Documents Pertaining to the Commission's
Division of Hydropower Licensing
30. These proposed guidelines provide further instructions on how
to file documents relating to applications to license hydropower
projects with the Commission's Division of Hydropower Licensing (DHL).
In hydropower licensing, only Exhibit F is considered to be CEII
material. Exhibit F consists of design drawings of critical energy
infrastructure information and a Supporting Design Report. Exhibit F is
contained in applications for hydropower licenses. All other DHL
documents contain only public information. In general, DHL documents
are not filed with a claim of privilege.
E. Guidelines for Filing FERC Form 715 Annual Transmission Planning and
Evaluation Report
31. These proposed guidelines provide further instructions on how
to file parts of the FERC Form 715, Annual Transmission Planning and
Evaluation Report (Form 715). The Form 715 is comprised of the
following parts: Part 1, Identification and Certification; Part 2,
Power Flow Base Cases; Part 3, Transmitting Utility Maps and Diagrams;
Part 4, Transmission Planning Reliability Criteria; Part 5,
Transmission Planning Assessment Practices; and Part 6, Evaluation of
Transmission System
[[Page 58329]]
Performance. Some parts of the Form 715 contain public information and
some contain CEII. In general, Form 715 does not contain privileged
information.
1. Public
32. In general, narratives such as descriptions of facilities and
processes are public. The information found in Part 1 contains the
filer's identification and contact information. This information should
be filed publicly. Similarly, Parts 4 and 5 contain generic criteria
used in evaluating and testing the filer's system. This generic
information does not qualify as CEII and should be filed publicly.
2. CEII
33. CEII only includes engineering, security, and detailed design
information about proposed or existing infrastructure. Information in
Part 2 provides an electrical model and analysis of the filer's actual
transmission system. Part 3 provides detailed one-line diagrams and
geographic location and identification of all system components. Part 6
provides details of potential weaknesses of the filer's transmission
system including possible solutions. These three parts contain CEII and
should be filed as such.
Information Collection Statement
34. The Office of Management and Budget's (OMB's) regulations
require that OMB approve certain information collection requirements
imposed by agency rule. See 5 CFR 1320.12 (2006). This notice of
proposed rulemaking does not impose any additional information
collection requirements. Therefore, the information collection
regulations do not apply to this final rule.
Environmental Analysis
35. 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 exclusions 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 notice of proposed rulemaking is procedural in
nature and therefore falls under this exception; consequently, no
environmental consideration is necessary.
Regulatory Flexibility Act Certification
36. The Regulatory Flexibility Act of 1980 (RFA) requires
rulemakings to contain either a description and analysis of the effect
that the rule will have on small entities or a certification that the
rule will not have a significant economic impact on a substantial
number of small entities.\2\ Most companies to which the rules proposed
herein would apply, if finalized, would not fall within the RFA's
definition of small entity.\3\ Consequently, the rules proposed herein,
if finalized, will not have a ``significant economic impact on a
substantial number of small entities.''
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\2\ 5 U.S.C. 603 (2000).
\3\ 5 U.S.C. 601(3)(2000), citing to section 3 of the Small
Business Act, 15 U.S.C. 632 (2000). Section 3 of the Small Business
Act defines a ``small business concern'' as a business that is
independently owned and operated and that is not dominant in its
field of operation. 15 U.S.C. 632 (2000). The Small Business Size
Standards component of the North American Industry Classification
System (NAICS) defines, for example, a small electric utility as one
that, including its affiliates, is primarily engaged in the
generation, transmission, and/or distribution of electric energy for
sale and whose total electric output for the preceding fiscal year
did not exceed four million MWh. NAICS defines a natural gas
pipeline company as one that transports natural gas and whose annual
receipts (total income plus cost of goods sold) did not exceed $6.5
million dollars for the preceding year. 13 CFR 121.201.
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Public Comments
37. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice to be adopted, including
any related matters or alternative proposals that commenters may wish
to discuss. Comments are due on or before November 2, 2006. Comments
must refer to Docket No. RM06-23-000, and must include the commenter's
name, the organization he or she represents, if applicable, and his or
her address.
38. Comments may be filed electronically via the eFiling link on
the Commission's Web site at http://www.ferc.gov. The Commission
accepts most standard word processing formats, and commenters may
attach additional files with supporting information in certain other
file formats. Commenters filing electronically do not need to make a
paper filing. Commenters who are not able to file comments
electronically must send an original and 14 copies of their comments
to: Federal Energy Regulatory Commission, Secretary of the Commission,
888 First Street, NE., Washington, DC 20426.
39. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this notice of
proposed rulemaking are not required to serve copies of their comments
on other commenters.
Document Availability
40. 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.
41. From FERC's Home Page on the Internet, this information is
available in the Commission's document management system, eLibrary. The
full text of this document is available on eLibrary in PDF and
Microsoft Word format for viewing, printing, and/or downloading. To
access this document in eLibrary, type the docket number excluding the
last three digits of this document in the docket number field.
42. User assistance is available for eLibrary and the FERC's Web
site during normal business hours. For assistance, please contact FERC
Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at
FERCOnlineSupport@FERC.gov), or the Public Reference Room at 202-502-
8371, TTY 202-502-8659 (e-mail at public.referenceroom@ferc.gov).
List of subjects in 18 CFR Part 388
Confidential business information; Freedom of information.
By direction of the Commission.
Magalie R. Salas,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
Part 388, Chapter I, Title 18, Code of Federal Regulations, as follows:
PART 388--INFORMATION AND REQUESTS
1. The authority citation for part 388 continues to read as
follows:
Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42
U.S.C. 7101-7352.
2. Revise Sec. 388.109(b) introductory text to read as follows:
Sec. 388.109 Fees for record requests.
* * * * *
(b) Fees for records not available through the Public Reference
Room
[[Page 58330]]
(FOIA or CEII requests). The cost of duplication of records not
available in the Public Reference Room will depend on the number of
documents requested, the time necessary to locate the documents
requested, and the category of the persons requesting the records. The
procedures for appeal of requests for fee waiver or reduction are
provided in Sec. 388.110.
* * * * *
3. In Sec. 388.112, paragraph (a)(3) is removed and paragraph (b)
is revised to read as follows:
Sec. 388.112 Requests for special treatment of documents submitted to
the Commission.
* * * * *
(b) Procedures. A person claiming that information warrants special
treatment as CEII or privileged must file:
(1) A written statement requesting CEII or privileged treatment for
some or all of the information in a document, and the justification for
special treatment of the information; and
(2) The following, as applicable:
(i) An original plus the requisite number of copies of the public
volume filed and marked in accordance with instructions issued by the
Secretary;
(ii) An original plus two copies of the CEII volume, if any, filed
and marked in accordance with instructions issued by the Secretary; and
(iii) An original only of the privileged volume, if any, filed and
marked in accordance with instructions issued by the Secretary.
* * * * *
4. Amend Sec. 388.113 by redesignating paragraph (d)(3) as
paragraph (d)(4), by adding new paragraph (d)(3), revising redesignated
paragraphs (d)(4)(i) and (d)(4)(ii), redesignating paragraph
(d)(4)(iii) as paragraph (d)(4)(iv), and adding new paragraphs
(d)(4)(iii) and (e) to read as follows:
Sec. 388.113 Accessing critical energy infrastructure information.
* * * * *
(d) * * *
(3) A landowner whose property is crossed by or in the vicinity of
a project may received detailed alignment sheets containing CEII
directly from the CEII Coordinator without submitting a non-disclosure
agreement as outlined in paragraph (d)(4) of this section. A landowner
must provide the CEII Coordinator with proof of his or her property
interest in the vicinity of a project.
(4) * * *
(i) File a signed, written request with the Commission's CEII
Coordinator. The request must contain the following: Requester's name
(including any other name(s) which the requester has used and the dates
the requester used such name(s)), date and place of birth, title,
address, and telephone number; the name, address, and telephone number
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. Unless otherwise provided in paragraph (d)(3) of this
section, a requester must also file an executed non-disclosure
agreement. A requester is also requested to include his or her social
security number for identification purposes. A requester who seeks the
information on behalf of all employees of an organization should
clearly state that the information is sought for the organization, that
the requester is authorized to seek the information on behalf of the
organization, and that the requester agrees to be bound by a non-
disclosure agreement which will be applied to all individuals who
access to the CEII.
(ii) Once the request is received, the CEII Coordinator will
determine if the information is CEII, and, if it is, whether to release
the CEII to the requester. The CEII Coordinator will balance the
requester's need for the information against the sensitivity of the
information. If the requester is determined to be eligible to receive
the information requested, the CEII Coordinator will determine what
conditions, if any, to place on release of the information.
(iii) Once a CEII requester has been verified by Commission staff
as a legitimate requester who does not pose a security risk, his or her
verification will be valid for the remainder of that calendar year.
Such a requester is not required to provide detailed information about
himself with subsequent requests during the calendar year. The
requester also is not required to file an NDA with subsequent requests
during the calendar year.
* * * * *
(e) Fees for processing CEII requests will be determined in
accordance with Sec. 388.109.
[FR Doc. E6-15822 Filed 10-2-06; 8:45 am]
BILLING CODE 6717-01-P
