163 FERC ¶ 61,125

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Parts 375 and 388

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

Regulations Implementing FAST Act Section 61003 – Critical Electric Infrastructure 

Security and Amending Critical Energy Infrastructure Information

(Issued May 17, 2018)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Order on Clarification and Rehearing.

SUMMARY: The Federal Energy Regulatory Commission (Commission) in this order 

on clarification and rehearing grants in part Edison Electric Institute’s request for 

clarification or, in the alternative, rehearing of Order No. 833, and denies rehearing of 

that order, which amends the Commission’s regulations to implement provisions of the 

Fixing America’s Surface Transportation Act pertaining to the designation, protection, 

and sharing of Critical Energy/Electric Infrastructure Information.

EFFECTIVE DATE: This rule will become effective [INSERT DATE 60 days after 

publication in the FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT: 

Nneka Frye

Office of the General Counsel

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

(202) 502-6029

Nneka.frye@ferc.gov
Docket No. RM16

-15-001- 2 -

Christopher MacFarlane

Office of the General Counsel

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

(202) 502-6761

Christopher.macfarlane@ferc.gov

Mark Hershfield

Office of the General Counsel

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

(202) 502-8597

Mark.hershfield@ferc.gov

SUPPLEMENTARY INFORMATION
163 FERC ¶ 61,125

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Kevin J. McIntyre, Chairman;

 Cheryl A. LaFleur, Neil Chatterjee,

Robert F. Powelson, and Richard Glick.

 

Regulations Implementing FAST Act Section 61003 –

Critical Electric Infrastructure Security and Amending 

Critical Energy Infrastructure Information

Docket No. RM16-15-001

ORDER NO. 833-A

ORDER ON CLARIFICATION AND REHEARING

(Issued May 17, 2018)

1. In Order No. 833, the Commission amended its regulations to implement 

provisions of the Fixing America’s Surface Transportation Act (FAST Act)1related to 

Critical Electric Infrastructure Information.

2

In addition, Order No. 833 revised the 

Commission’s Critical Energy Infrastructure Information regulations.

3 Edison Electric 

Institute (EEI) requested clarification or, in the alternative, rehearing of Order No. 833. 

For the reasons discussed below, we grant EEI’s request for clarification in part and deny 

rehearing.

I. Order No. 833

2. On December 4, 2015, the FAST Act was signed into law. The FAST Act, inter 

alia, added section 215A to the Federal Power Act (FPA) to improve the security and 

resilience of energy infrastructure in the face of emergencies. The FAST Act directed the 

 

1 Fixing America’s Surface Transportation Act, Pub. L. No. 114-94, 

section 61,003, 129 Stat. 1312, 1773-1779 (2015) (codified at 16 U.S.C. 824o-1). 

2 Regulations Implementing FAST Act Section 61003 — Critical Electric 

Infrastructure Security and Amending Critical Energy Infrastructure Information, 

Availability of Certain North American Electric Reliability Corporation Databases to the 

Commission, Order No. 833, 157 FERC ¶ 61,123 (2016).

3

Id.
Docket No. RM16-15-001 - 2 -

Commission to issue regulations that provide: (1) the criteria and procedures for

designating information as Critical Electric Infrastructure Information; (2) a specific 

prohibition on unauthorized disclosure of Critical Electric Infrastructure Information; (3) 

sanctions for the knowing and willful unauthorized disclosure of Critical Electric 

Infrastructure Information by Commission and Department of Energy (DOE) employees; 

and (4) a process for voluntary sharing of Critical Electric Infrastructure Information.

4

 

3. On June 16, 2016, the Commission issued a Notice of Proposed Rulemaking 

(NOPR) to amend its regulations to implement the provisions of the FAST Act pertaining 

to the designation, protection, and sharing of Critical Electric Infrastructure Information

and to revise the existing Critical Energy Infrastructure Information regulations.5 The 

NOPR proposed that the amended procedures be referred to as the Critical 

Energy/Electric Infrastructure Information (CEII) Procedures.6In response to the NOPR, 

nineteen entities filed comments and two entities filed reply comments. 

4. On November 17, 2016, the Commission issued Order No. 833, which amended

the Commission’s regulations at 18 C.F.R. §§ 375.309, 375.313, 388.112 and 388.113 to 

implement the FAST Act provisions that pertain to the designation, protection and 

sharing of Critical Electric Infrastructure Information. Order No. 833 also revised the 

existing Critical Energy Infrastructure Information regulations. The Commission 

determined that the amended regulations comply with the requirements of the FAST Act 

and better ensure the secure treatment of CEII.7

II. Discussion

5. EEI asserts that the Commission either erred or should reconsider five aspects of 

Order No. 833.

8

 As discussed below, we grant EEI’s request for clarification in part and 

deny EEI’s request for rehearing. 

 

4 See generally FAST Act, Pub. L. No. 114-94, section 61,003, 129 Stat. 1312, 

1776.

5 Regulations Implementing FAST Act Section 61003 – Critical Electric 

Infrastructure Security and Amending Critical Energy Infrastructure Information, 

155 FERC ¶ 61,278 (2016) (NOPR). 

6

 Id.

7 See generally Order No. 833, 157 FERC ¶ 61,123.

8 EEI Request at 6-7.
Docket No. RM16-15-001 - 3 -

A. Requests for Access to CEII

Order No. 833

6. The FAST Act required the Commission, taking into account standards of the 

Electric Reliability Organization, to facilitate voluntary sharing of Critical Electric 

Infrastructure Information. The statute directed the Commission to facilitate voluntary 

sharing with, between, and by Federal, State, political subdivision, and tribal authorities; 

the Electric Reliability Organization; regional entities; information sharing and analysis 

centers established pursuant to Presidential Decision Directive 63; owners, operators, and 

users of critical electric infrastructure in the United States; and other entities determined 

appropriate by the Commission.9

7. In Order No. 833, the Commission established procedures in its regulations for 

providing CEII to third parties. Specifically, in section 388.113(f), the Commission

established a process for the Commission to voluntarily share CEII when there is a need 

to ensure energy infrastructure is protected. Separately, in section 388.113(g), the 

Commission revised its long-standing procedures for members of the public to request

access to CEII by requiring a statement demonstrating a valid and legitimate need for the 

information.

10

 Both processes contain procedures to notify submitters of the CEII of the 

Commission’s prospective sharing of its CEII as well as a requirement that prospective 

CEII recipients execute Non-Disclosure Agreements (NDA). 

8. The Commission also stated that the procedures do not impose a sharing 

requirement on entities; instead, the provisions allow the Commission to exercise 

discretion to share CEII that has already been submitted to, or generated by, the 

Commission.11 Further, the Commission determined that even if the Commission’s 

voluntary sharing of information were viewed as the same as a third-party sharing it, the 

Commission must balance its obligation to disclose information as necessary to carry out 

 

9 FAST Act, Pub. L. No. 114-94, section 61,003, 129 Stat. 1312, 1776.

10 The CEII request procedures found in section 388.113(g) were first established 

under the Commission’s Critical Energy Infrastructure Information regulations in 2003. 

See Critical Energy Infrastructure Information, Order No. 630, FERC Stats. & Regs. 

¶ 31,140, order on reh’g, Order No. 630-A, FERC Stats. & Regs. ¶ 31,147 (2003).

11 Order No. 833, 157 FERC ¶ 61,123 at P 125.
Docket No. RM16-15-001 - 4 -

the Commission’s jurisdictional responsibilities against an entity’s preference not to have 

information disclosed.12

Request

9. EEI states that the Commission should reconsider its determination that CEII can 

be shared over the objections of submitters.

13

 EEI asserts that section 215A(d)(2)(D) of 

the FPA directs the Commission only to facilitate voluntary sharing “by and between” 

entities. EEI contends that the Commission’s ability to share information over a 

submitter’s objection, as provided in 18 C.F.R. § 388.113(g)(5)(iii), amounts to 

involuntary sharing not intended by the FAST Act and in violation of FPA section 

215A(d)(6).

14

 EEI asserts that, by using section 215A(d)(2)(D) to authorize the 

Commission to provide CEII over the submitter’s objection, the Commission is using the 

FAST Act to “share” CEII in an involuntary manner. EEI states that its interpretation is 

consistent with Congress’ decision to make CEII exempt from mandatory disclosure 

under the Freedom of Information Act (FOIA).15 

Commission Determination 

10. We deny clarification and rehearing of this issue. We disagree with EEI’s 

contention that the FAST Act only directs the voluntary sharing of CEII “by and 

between” entities or that the Commission’s release of information over a submitter’s 

objections constitutes “involuntary” sharing of such information. EEI misconstrues FPA 

section 215A(d)(2)(D) to argue that the statute’s directives regarding voluntary sharing 

do not include voluntary sharing of CEII by the Commission. Such a reading is 

inconsistent with the FAST Act in two respects. 

11. First, FPA section 215A(d)(2)(D)(i) provides that the Commission’s regulations 

should “facilitate voluntary sharing of critical electric infrastructure information with, 

between, and by— (i) Federal, State, political subdivision, and tribal authorities ...” It 

would be incongruous to read the FAST Act’s reference to “voluntary sharing ... by ... 

Federal ... authorities” not to include voluntary sharing by the Commission of CEII in its 

possession. Second, the FAST Act did not direct the Commission to curtail or eliminate 

 

12 Id. P 126.

13 EEI Request at 7.

14 Id.

15 See 5 U.S.C. 552 as amended by the FOIA Improvement Act of 2016, Pub. L. 

No. 114-185, 130 Stat. 538 (2016).
Docket No. RM16-15-001 - 5 -

the established, pre-existing process for providing members of the public with access to 

CEII, which is provided in 18 C.F.R. § 388.113(g)(5)(iii). 

12. Even before the FAST Act, the Commission’s regulations included a process 

whereby the Commission’s CEII Coordinator had the discretion to share, in certain 

circumstances, CEII that was submitted to, or generated by, the Commission.16 Under 

both the prior regulations and the revised regulations at 18 C.F.R. § 388.113(d)(1)(vi), a 

submitter is, as EEI acknowledges, provided an opportunity to comment on the potential 

disclosure of its CEII.17 Prior to any determination to release CEII to a requester,

pursuant to 18 C.F.R. § 388.113(g)(5)(iii), the CEII Coordinator will take into 

consideration any objections and “will balance the requester’s need for the information 

against the sensitivity of the information.” Other than characterizing a determination by 

the CEII Coordinator to ultimately release CEII over an objection as “involuntary 

sharing,” EEI does not propose any change to the Commission’s long-standing approach

nor does EEI demonstrate that the FAST Act is intended to restrict the Commission from 

sharing CEII, under an NDA, with third parties that have a valid and legitimate need for 

the material.

18

13. In addition, our reading of the FAST Act is consistent with EEI’s statement that 

“[u]nder the plain meaning of the FAST Act statute, the term ‘voluntary’ means the 

Commission should implement an information sharing process that allows owners to 

 

16 Order No. 833, 157 FERC ¶ 61,123 at P 125.

17 EEI’s argument pertains to the CEII request process found in 18 C.F.R. 

388.113(g)(5) of the Commission’s regulations. To the extent that EEI’s argument

indirectly relates to the separate voluntary sharing provisions found in section 388.113(f), 

its argument does not persuade us to grant rehearing on that section for the same reasons 

as those provided above. For example, under section 388.113(f), except in exigent 

circumstances, submitters are provided notice prior to release of CEII and may submit 

comments. In the event of an exigency like a national security issue, the Commission 

will provide notice of the disclosure to the submitter of CEII as soon as practicable. 

18 EEI’s interpretation suggests that the determination as to whether it is 

appropriate for the Commission to share CEII should be entirely in the hands of the 

submitter. Such an approach is inconsistent with the FAST Act as it could limit the 

Commission’s ability to share CEII. In any event, pursuant to 388.113(d)(1)(iv), a 

submitter is provided notice of release of CEII under 18 C.F.R. § 388.113(g)(5)(iii), and a 

submitter who disagrees with the determination providing notice of the release of its CEII 

has the ability to seek injunctive relief in district court.
Docket No. RM16-15-001 - 6 -

share information intentionally and freely.”19 The new voluntary sharing provisions, at 

18 C.F.R § 388.113(f) of the Commission’s CEII regulations, only govern the process by 

which the Commission will voluntarily share CEII that has been submitted to the 

Commission or generated by staff.

20

 Before the FAST Act and under the revised 

regulations, entities remain free to share the CEII that they submitted to the Commission 

with others. 

14. Finally, we disagree with EEI’s assertion that its interpretation of the FAST Act’s

“voluntary sharing” provisions is consistent with Congress’ creation of a FOIA 

exemption for CEII.21 The Commission’s FOIA program and the voluntary sharing 

contemplated under the FAST Act serve different purposes, with the former serving to 

support government transparency22 and the latter governing how certain sensitive 

information is identified, secured, and shared to support the security and resilience of 

critical energy infrastructure. We do not agree that the new FOIA exemption protecting 

against mandatory public disclosure of CEII in response to a FOIA request suggests that 

Congress also intended to prohibit any sharing of that CEII without the submitter’s 

consent. Rather, the regulations adopted in Order No. 833 struck an appropriate balance 

between the FAST Act’s provisions protecting CEII from public disclosure with the 

provisions providing that CEII may be voluntarily shared with certain third parties. Thus, 

while the FOIA exemption prevents the disclosure of CEII in response to a FOIA request, 

we disagree with EEI’s assertion that the exemption was intended to preclude the 

Commission from exercising its discretion to share CEII pursuant to the established 

procedures in 18 C.F.R. § 388.113(g)(5)(iii). 

 

19 EEI Request at 7.

20 As to sharing of CEII by CEII recipients, under our NDAs, CEII recipients may 

only share CEII with other individuals covered by our NDA for the same information.

21 EEI Request at 7-8.

22 See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (“The

basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a 

democratic society, needed to check against corruption and to hold the governors 

accountable to the governed.”).
Docket No. RM16-15-001 - 7 -

B. Criteria for Responding to CEII requests

Order No. 833

15. In Order No. 833, the Commission concluded that the FAST Act does not require 

changes to the Commission’s existing process for accessing CEII.

23 The Commission 

also decided to maintain its balancing approach when determining whether to provide

CEII to individuals who demonstrated a need for access to CEII under an executed

NDA.24 The Commission noted that a request for access to CEII is case specific to the 

unique facts and circumstances of each request and, therefore, declined to provide 

additional guidance and criteria about how it will respond to individual CEII requests 

under 18 C.F.R. § 388.113(g)(5).25

Request

16. EEI asserts that the Commission erred by declining to provide or clarify the 

criteria that the Commission will use to determine whether a member of the public is 

eligible to obtain CEII from the Commission.26 EEI claims that such clarification will 

provide clear guidance to Commission staff about when a member of the public may 

receive CEII and afford a better understanding to submitters about the “benefits or risks 

involved in providing CEII to the Commission.”27 EEI also contends that “criteria stating 

that the Commission will consider public safety benefits before releasing CEII to the 

public may provide CEII submitters with greater reasons to voluntarily provide CEII to 

the Commission.”28

 

23 Order No. 833, 157 FERC ¶ 61,123 at P 144.

24 Id. P 143.

25 The Commission, however, outlined the information that an individual seeking 

access to CEII under 18 C.F.R. § 388.113(g)(5) must include in an accompanying

statement of need. See id.

26 EEI Request at 6 (averring that nothing in section 388.113(g)(5)(iii) identifies 

any criteria that the Commission will use before disclosing CEII to a requester).

27 Id. at 9.

28 Id.
Docket No. RM16-15-001 - 8 -

Commission Determination 

17. We grant clarification and deny rehearing of this issue. We continue to believe 

that the Commission has provided sufficient detail on the circumstances in which the 

Commission will share CEII.

29 The CEII regulations enable “individuals with a valid or 

legitimate need to access certain sensitive energy infrastructure information” that would 

otherwise be exempt under FOIA.

30

 

18. Since instituting the CEII process in 2003, the Commission has acquired 

significant experience in processing CEII requests. In particular, the Commission 

routinely processes CEII requests from, among others, consultants, academics, 

landowners, and public interest groups. In implementing the provisions of the FAST Act,

the Commission is utilizing its vast experience in addressing the various interests of CEII 

requestors and submitters as well. 

19. Furthermore, we disagree with EEI’s assertion that the Commission failed to 

provide any criteria that the CEII Coordinator will use to determine whether a member of 

the public is eligible to access CEII. As explained in Order No. 833, the Commission 

has utilized a “balancing approach effectively in response to Critical Energy 

Infrastructure Information requests for almost fifteen years. The balancing approach has 

provided to individuals with a demonstrated need access to information subject to a 

NDA.”31 Consistent with long-standing practice, section 388.113(g)(5)(iii) states that the 

“CEII Coordinator will balance the requester’s need for the information against the 

sensitivity of the information.” 

20. Contrary to EEI’s assertion, in the NOPR and in Order No. 833, we provided 

clarification regarding the criteria for obtaining CEII by outlining information that a CEII

requester must include in its statement of need.

32 We also stated that a conclusory 

statement of need by a CEII requester will not suffice.33 Moreover, we note that a request 

for access to CEII is case specific to the unique facts and circumstances of each request. 

 

29 See, e.g., 18 C.F.R § 388.113(f) (2017) (providing the procedures for voluntary 

sharing), § 388.113(g) (providing procedures for accessing CEII). 

30 Order No. 833, 157 FERC ¶ 61,123 at P 3.

31 Id. P 143.

32 18 C.F.R. § 388.113(g)(5)(i)(b).

33 Id.
Docket No. RM16-15-001 - 9 -

21. In its filing, EEI provides one suggestion (i.e., “public safety benefits”) concerning 

how the Commission can enhance the criteria to determine whether a member of the 

public is eligible to obtain CEII from the Commission.34 We clarify that public safety 

benefits are one criterion that the CEII Coordinator should consider, as part of the 

balancing approach described above, in determining whether to share CEII in a particular 

instance. Overall, we believe that our approach provides sufficient detail on the 

circumstances in which the Commission will share CEII, while also providing the CEII 

Coordinator with enough specificity and flexibility to respond to each individual request 

for CEII. 

C. Non-Disclosure Agreement

Order No. 833

22. Order No. 833 included revisions to strengthen the CEII handling requirements for 

both Commission staff and external recipients. As part of those revisions, the 

Commission established minimum requirements for the NDAs that recipients of CEII 

must execute before receiving access to CEII. The Commission explained that the 

minimum requirements for an NDA are not exhaustive and do not preclude other 

requirements.35 Further, the Commission stated that additional provisions may be added 

to the NDA and submitters may request additional provisions.36 In response to NOPR 

comments, the Commission amended section 388.113(h)(2) to add a provision to require 

CEII recipients to promptly report all unauthorized disclosures of CEII to the 

Commission.37

Request 

23. EEI states that the Commission should consider “modernizing the Commission’s 

CEII NDA even further to mitigate against the risk of a CEII recipient involuntarily 

sharing CEII with a hostile actor.”

38

 EEI identifies one example of how the Commission 

may change the CEII NDA. While acknowledging the “incident response clause” in 

section 388.113(h)(2), EEI suggests that the clause could be changed to require the 

 

34 EEI Request at 9.

35 Order No. 833, 157 FERC ¶ 61,123 at P 92.

36 Id.

37 Id. P 93.

38 EEI Request at 10-11.
Docket No. RM16-15-001 - 10 -

reporting of unauthorized disclosures that actually occurred or “those reasonably 

suspected to have occurred.”

39

Commission Determination 

24. We grant clarification and deny rehearing on this issue. Order No. 833 explained 

that section 388.113(h)(2) only includes “‘minimum’ requirements for a NDA and is not 

intended to be exhaustive or preclude additional provisions, as needed.”40 As the 

Commission stated in Order No. 833, under certain circumstances the Commission may 

add additional provisions to the NDA and submitters may request that additional 

provisions be added to the NDA.41 While we decline to make any changes to the 

minimum requirements for the NDA, the Commission reiterates that the CEII 

Coordinator may consider adding additional provisions to the NDA on a case by case 

basis. However, to the extent EEI seeks a specific change to the NDA or requests that the 

Commission take further comment on revisions to the NDA at this time, we deny those

requests. EEI has not demonstrated that the NDA revisions that we have adopted, or the 

fact that we will entertain further changes to the NDA as appropriate, are unreasonable or 

arbitrary. 

D. Designation of Commission-Generated Information 

Order No. 833

25. In Order No. 833, the Commission determined that for Commission-generated 

information, the CEII Coordinator, after consultation with the appropriate Office 

Director, will determine whether the information is CEII.42 The Commission concluded

that stakeholder participation in CEII designations of Commission-generated information 

is unnecessary because the Commission has the expertise and experience to make such 

determinations.43 The Commission also noted that in certain instances it would be 

inappropriate for stakeholders to be privy to Commission-generated information that 

potentially qualified as CEII.44 Finally, the Commission stated that an entity is not 

 

39 Id. at 10.

40 Order No. 833, 157 FERC ¶ 61,123 at P 92. 

41 Id. P 92. 

42 Id. P 59.

43 Id. P 60. 

44 Id.
Docket No. RM16-15-001 - 11 -

precluded from raising concerns with the CEII Coordinator when an entity believes that 

Commission-generated information contains CEII about its facility.

45

Request

26. EEI requests that the Commission clarify the existing procedures or provide the 

anticipated procedure for stakeholder “notification of, and opportunity to comment on, 

potential disclosure or sharing of Commission-generated information.”46 EEI asserts that 

the Commission erred by failing to provide a process for an entity to comment on the 

possible disclosure or sharing of Commission-generated CEII.

47 EEI contends that the

Commission may incorporate a submitter’s CEII in a Commission-generated CEII 

document that is released to a CEII requester without providing the submitter any 

opportunity to comment.

27. EEI also contends that the Commission could create a document that combines 

information that alone did not constitute CEII and was not submitted to the Commission 

as such, but that combined with other information could constitute CEII.48 EEI states that 

in that instance, the submitter would not have had an opportunity to mark the information 

as CEII.49 EEI maintains that, in these situations, it would be inconsistent for the 

Commission not to provide notice and an opportunity to comment.

50

 

Commission Determination 

28. We grant clarification and deny rehearing on this issue. The FAST Act implicitly 

recognizes that the Commission has the expertise and experience to determine whether 

any information, including Commission-generated information, is properly designated as 

CEII by vesting the Commission with the authority to designate information as CEII. 

The FAST Act does not require, and EEI identifies no provision in the FAST Act 

requiring, the Commission to provide notice and opportunity for public comment about 

the prospective release or sharing of Commission-generated CEII. Furthermore, the 

Commission is not persuaded that we should establish a requirement for stakeholder input 

 

45 Id. P 61.

46 EEI Request at 6.

47 Id.

48 Id. at 13.

49 Id.

50 Id. at 13-14.
Docket No. RM16-15-001 - 12 -

when the Commission combines information not filed as CEII with other information and 

potentially creates CEII. 

29. To the contrary, inherent differences between Commission-generated CEII and 

CEII from submitters, as well as practical considerations, warrant different procedures. 

As EEI acknowledges, there are circumstances in which it would be inappropriate for an 

outside entity to comment on the content of a non-public, Commission-generated CEII 

document. Nonetheless, EEI asks the Commission to develop a “consistent process” for 

stakeholder participation. We disagree and believe that crafting a broad notification 

requirement for each Commission-generated document that discusses CEII in some 

respect would be impractical and, as we noted in Order No. 833, often inappropriate.51 

30. Therefore, EEI’s arguments do not persuade us that a formal, mandatory

stakeholder process is needed to comment on the release or sharing of Commissiongenerated CEII. We, however, clarify that nothing in the FAST Act or the Commission’s 

CEII regulations prevents the CEII Coordinator from exercising discretion in an 

individual situation to solicit comments from a submitter of CEII or other information 

when evaluating whether to release a Commission-generated CEII document. We note 

that even if the Commission determines to release Commission-generated CEII, such a 

release would be pursuant to an NDA and the Commission’s protections against further 

unwarranted or prohibited disclosure. 

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

Order No. 833

31. In Order No. 833, the Commission declined to revise the CEII regulations to 

identify specific designation criteria and CEII procedures for DOE.52 The Commission 

stated that the FAST Act does not compel DOE to make changes to its regulations and 

 

51 Order No. 833, 157 FERC ¶ 61,123 at P 61. For example, Commissiongenerated documents may include other forms of non-public information such as predecisional, internal deliberations covered by the Deliberative Process Privilege. 5 U.S.C. 

§ 552(b)(5)(2017) (protecting from disclosure “intra-agency memoranda or letters which 

would not be available by law to a party other than an agency in litigation with the 

agency.”); see Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); 

see also Environmental Protection Agency v. Mink, 410 U.S. 73, 87 (1973) (recognizing 

that “[i]t would be impossible to have any frank discussions of legal or policy matters in 

writing if all such writings were to be subjected to public scrutiny”). 

52 Order No. 833, 157 FERC ¶ 61,123 at P 39.
Docket No. RM16-15-001 - 13 -

noted that nothing within the Commission’s regulations limits DOE’s ability to designate 

CEII in accordance with the FAST Act.53

Request

32. EEI asserts that the Commission erred in declining to provide or clarify the 

applicability of any procedure or process for stakeholders regarding DOE designations of 

its information as CEII.54 Specifically, EEI requests that the Commission confirm that 

DOE determinations regarding CEII will be conducted pursuant to the Commission’s 

CEII regulations.55 EEI further requests that if that is not the case, the Commission 

should clarify that position, so EEI can seek further clarification from DOE as to the 

applicable procedures and criteria DOE intends to use for such determinations.56

Commission Determination 

33. We deny rehearing on this issue. In Order No. 833, the Commission declined to 

revise our regulations to identify specific designation criteria and CEII procedures that 

would be required for DOE.57 EEI’s argument here does not persuade us to change that 

determination. Specifically, section 215A(d)(3) of the FAST Act provides that 

information “may be designated” by the Commission and DOE pursuant to the criteria 

and procedures that the Commission establishes.58 As explained in Order No. 833, 

nothing within the FAST Act compels DOE to make changes to its regulations, and 

nothing in the Commission’s regulations limits DOE’s ability to designate information in

accordance with the FAST Act.

59

 

 

53 Id.

54 EEI Request at 7.

55 Id. at 16.

56 Id.

57 Order No. 833, 157 FERC ¶ 61,123 at P 39.

58 FAST Act, Pub. L. No. 114-94, section 61,003, 129 Stat. 1312, 1776.

59 Order No. 833, 157 FERC ¶ 61,123 at P 39 (citing NOPR, 155 FERC ¶ 61,278 

at P 16 n.12).
Docket No. RM16-15-001 - 14 -

The Commission orders:

EEI’s request for clarification is hereby granted in part and EEI’s request for 

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

By the Commission. 

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.