121 FERC ¶ 61,107 

UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

18 CFR Part 388 

(Docket No. RM06-23-000; Order No. 702) 

Critical Energy Infrastructure Information 

(Issued October 30, 2007) 

AGENCY: Federal Energy Regulatory Commission. 

ACTION: Final Rule. 

SUMMARY: The Federal Energy Regulatory Commission (Commission) is issuing 

this final rule amending its regulations for gaining access to critical energy infrastructure 

information (CEII). The final rule reflects comments filed in response to the 

September 21, 2006 notice seeking public comment on proposed changes to the 

Commission’s CEII rules. The final rule: modifies non-disclosure agreements; modifies 

the Commission’s process to allow the CEII Coordinator to respond to CEII requests by 

letter; provides landowners access to alignment sheets for the routes across or in the 

vicinity of their properties; includes a fee provision; limits the portions of forms and 

reports the Commission defines as containing CEII; eliminates as a category of 

documents the Non-Internet Public designation; and provides that the Commission will 

seek a requester’s date and place of birth on a case-by-case basis rather than require that 

information with every request for CEII. Finally, the request for social security numbers 

is being eliminated. 
Docket No. RM06-23-000 - 2 -

EFFECTIVE DATE: The rule will become effective [insert date 30 days after 

publication in the FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT: 

Jeffrey H. Kaplan 

Office of the General Counsel, GC-13 

Federal Energy Regulatory Commission 

888 First Street, NE 

Washington, DC 20426 

202-502-8788 

SUPPLEMENTARY INFORMATION: 
UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

Before Commissioners: Joseph T. Kelliher, Chairman; 

 Suedeen G. Kelly, Marc Spitzer, 

 Philip D. Moeller, and Jon Wellinghoff. 

Critical Energy Infrastructure Information Docket Nos. RM06-23-000 

 

 

ORDER NO. 702 

FINAL RULE 

(Issued October 30, 2007) 

1. On September 21, 2006, the Commission issued a Notice of Proposed Rulemaking 

(NOPR) on its procedures for dealing with critical energy infrastructure information 

(CEII).1

 After receiving comments in response to the NOPR, the Commission amends 

and clarifies 18 CFR 388.113 and its CEII process.

Background

2. Shortly after the attacks on September 11, 2001, the Commission began its efforts 

with respect to CEII.2

 As a preliminary step, the Commission removed from its public 

files and Internet page documents such as oversized maps that were likely to contain 

detailed specifications of facilities, and directed the public to use the Freedom of 

 

1

 Critical Energy Infrastructure Information, 71 Fed. Reg. 58,325 (October 3, 

2006), FERC Stats. & Regs. ¶ 32,607 (2006). 

2

 See Statement of Policy on Treatment of Previously Public Documents, 66 Fed. 

Reg. 52,917 (Oct. 18, 2001), 97 FERC ¶ 61,130 (2001). 
Docket No. RM06-23-000 - 2 -

 

Information Act (FOIA) request process to obtain such information.3

 The Commission 

established its CEII rules in Order Nos. 630 and 630-A.4

 

3. On the same day as the Commission issued the NOPR in this docket it also issued 

an instant and final rule that clarified the definition of CEII, required requesters of CEII 

to submit executed non-disclosure agreements with their requests, and provided that the 

notice and opportunity to comment on a CEII request would be combined with the notice 

of release of information.5

 Thus, the current procedures require that each CEII requester 

file a signed, written request in which he or she provides to the CEII Coordinator detailed 

information about himself or herself and his or her need for the information, along with 

an executed non-disclosure agreement. Commission staff verifies and utilizes this 

information to determine whether to release the CEII to the requester. The current 

process requires that Commission staff verify each requester when each request is made. 

This final rule under consideration here reflects the Commission’s ongoing commitment 

to evaluate the effectiveness of the CEII regulations and make changes as necessary. 

3

 The FOIA process is specified in 5 U.S.C. 552 and the Commission’s regulations 

at 18 CFR 388.108. 

4

 Critical Energy Infrastructure Information, Order No. 630, 68 Fed. Reg. 9,857 

(Mar. 3, 2003), FERC Stats. & Regs. ¶ 31,140 (2003); order on reh’g, Order No. 630-A, 

68 Fed. Reg. 46,456 (Aug. 6, 2003), FERC Stats. & Regs. ¶ 31,147 (2003). 

5

 See Critical Energy Infrastructure Information, Order No. 683, 71 Fed. Reg. 

58,273 (October 3, 2006), FERC Stats. & Regs. ¶ 31,228 (2006) (September 21 Order); 

order on reh’g, Order No. 683-A, 72 Fed. Reg. 18,572 (April 13, 2007) (Order No. 683-

A). 
Docket No. RM06-23-000 - 3 -

Summary and Discussion of Comments Received

 A. Introduction

4. In the NOPR, the Commission invited comments on the following issues: 

(1) annual certification for repeat requesters, (2) execution of non-disclosure agreements 

by authorized representatives of organizations on behalf of all of the organizations’ 

employees, (3) charging fees, (4) issuing letter responses to CEII requests; (5) providing 

alignment sheets to landowners for the routes across or in the vicinity of their properties; 

(6) limiting the portions of forms and reports the Commission now defines as containing 

CEII; and (7) eliminating the Non-Internet Public (NIP) designation. The Commission 

received thirteen responses to the NOPR.6

 While some of the comments address the 

specific questions raised by the Commission, many of the comments relate to other 

aspects of the CEII process. Commenters raise issues regarding verification of requesters 

and the use of non-disclosure agreements and how to ensure compliance with such 

agreements. In addition, at least one commenter raises concerns about CEII claims in the 

context of market-based rate filings, and how the typical CEII response times makes it 

difficult to participate in such proceedings. Several commenters raise issues regarding 

state agency requests for CEII. These issues are discussed below.

 

6

 See Appendix A for a list of commenters. In addition to the submitted 

comments, in the Commission’s final rule on Regulations for Filing Applications for 

Permits to Site Interstate Electric Transmission Facilities, the Commission stated that 

copies of the comments submitted by Western Energy Board, NARUC, and California 

Resources will be placed in the official record in Docket No. RM06-23-000, and will be 

addressed in this proceeding. See Regulations for Filing Applications for Permits to Site 

Interstate Electric Transmission Facilities, 71 Fed. Reg. 69,440 (Dec. 1, 2006); FERC 

Stats. & Regs. ¶ 31,234 (2006). 
Docket No. RM06-23-000 - 4 -

 B. Annual Certification for Repeat Requesters

5. Several commenters support the Commission’s proposal to allow an annual 

certification for repeat requesters.7

 AGA states that expediting access to frequent 

requesters is appropriate, particularly since many parties, such as local distribution 

companies, need repeated access to CEII to evaluate proposed certificate or rate and 

tariff-related proposals.8

 MidAmerican and Williston Basin both support annual 

certification for repeat requesters provided that the submitter of the CEII is given notice 

of each request.9

 Similarly, INGAA requests that the Commission clarify that submitters 

of CEII receive notice of subsequent requests by certified requesters. 

6. Although several commenters generally support eliminating redundant 

requirements, they contend that an annual certification period that does not require an 

non-disclosure agreement for each requester is not appropriate in all instances.10 The 

Department of the Interior suggests that once the CEII Coordinator determines that a 

requester does not pose a security risk, there should be some mechanism to consider 

changed circumstances.11 In addition, Dominion contends that the Commission lacks 

 

7

 Department of the Interior at p. 3, APPA and TAPS at pp. 5-6, AGA at p. 3, and 

EEI Reply Comments at p. 5. 

8

 AGA at p. 3. 

9

 MidAmerican at pp. 2-3 and Williston Basin at p. 3. 

10 Dominion at p. 6 and EEI Reply Comments at p. 5. 

11 Department of the Interior at p. 3. 
Docket No. RM06-23-000 - 5 -

meaningful sanctions for violations of a non-disclosure agreement.12 EEI asserts that the 

Commission’s proposal does not clearly state that the first non-disclosure agreement 

signed by a requester in a given year will apply to all subsequent releases of CEII in that 

year to that requester.13

7. The California Agencies contend that the NOPR relaxes the required showing of a 

particular need for CEII for a twelve-month period.14

 Commission Determination 

8. The Commission takes this opportunity to clarify several aspects of its CEII 

procedures. First, the Commission encourages filers to negotiate with requesters to 

provide data directly to the requesters, where appropriate. Second, if a CEII requester 

receives an annual certification, it simply means that the Commission does not have 

concerns about releasing CEII to that individual. In response to the concerns raised by 

MidAmerican, Williston Basin, and INGAA, such an annual certification does not 

eliminate the current requirement to notify the submitter of CEII and give the submitter 

an opportunity to comment on all requests for CEII.15 In answer to the California 

Agencies’ concerns, as the Commission explained in the NOPR, with each request, the 

requester will be required to provide detailed information as to why he or she needs the 

 

12 Dominion at p. 4. 

13 EEI at pp. 10-11. 

14 California Agencies at p. 9. 

15 See 18 C.F.R. § 388.112. 
Docket No. RM06-23-000 - 6 -

CEII.16 In response to EEI’s concern, the Commission clarifies that the executed nondisclosure agreement originally submitted by the requester will apply to all CEII the 

requester receives from the Commission that year. In answer to the Department of the 

Interior’s concern for a mechanism to consider changed circumstances, the Commission 

will modify the sample non-disclosure agreements posted on its website to require that a 

requester notify the Commission of any change in the information the requester originally 

provided, e.g., a change in employment status.17 

9. The commenters’ concerns regarding the Commission’s ability to enforce the 

terms of the non-disclosure agreements are unwarranted. The Commission will address 

any violations and utilize sanctions, where appropriate, including civil penalties and 

criminal referrals. To date, no violations of non-disclosure agreements have been alleged 

against those granted access to CEII.

C. Authorized Representative of an Organization to Execute a NonDisclosure Agreement

10. A few commenters generally support allowing an authorized representative of an 

organization to execute a non-disclosure agreement on behalf of the organization’s 

employees.18 Williston Basin requests that the submitters of the CEII receive notice of 

 

16 NOPR at P 5. 

17 The Commission clarifies that it will continue to use the five types of NDAs 

posted on its website, www.ferc.gov, with the modifications discussed above. The five 

types of NDAs posted on the Commission’s website are: (1) a general NDA, (2) a media 

NDA, (3) a state agency employee NDA, (4) a consultant NDA, and (5) a Federal 

Agency Acknowledgement and Agreement. 

18 Williston Basin at p. 3, APPA and TAPS at p. 5, and EEI Reply Comments at p. 

5. 
Docket No. RM06-23-000 - 7 -

all requests for release and have an opportunity to comment, i.e., Williston Basin requests 

that the Commission clarify that this current practice will continue.19 

11. Several commenters oppose allowing a single representative to execute a nondisclosure agreement on behalf of an entire organization.20 A couple of commenters 

contend that certifying all employees of a requesting organization is too broad as it would 

allow access to CEII by individuals who may not need to review it.21 Similarly, INGAA 

states that the NOPR proposal that a “member or employee of an organization” may 

obtain CEII on behalf of an organization is too broad and undefined.22 The Allegheny 

Energy Companies and Dominion express concerns regarding whether a representative 

could bind an organization.23

 Commission Determination 

12. After reviewing the comments received, the Commission is making the following 

changes to its proposal in the NOPR. First, all individuals in an organization with access 

to CEII must be named in the non-disclosure agreement and must also execute the nondisclosure agreement. Second, any subsequent additions to or deletions of names on the 

non-disclosure agreement must be sent to the Commission as well as to the submitter of 

 

19 Williston Basin at p. 3. 

20 SCE at p. 2, AGA at p. 4, Dominion at p. 8, INGAA at pp. 2-3, MidAmerican at 

p. 3, and EEI at p. 10. 

21 AGA at p. 4 and MidAmerican at pp. 3-4. 

22 INGAA at p. 3. 

23 Allegheny at p. 7, Dominion at pp. 5-6. 
Docket No. RM06-23-000 - 8 -

the CEII. Further, the revised non-disclosure agreement should be executed by the 

newly-named individuals. If there is no written opposition within five (5) days of 

notifying the CEII Coordinator and the submitter concerning the addition of any newlynamed individuals, the CEII Coordinator will issue a standard notice accepting the 

additions of names to the non-disclosure agreement. If there is a timely opposition from 

the submitter, the CEII Coordinator will issue a formal determination addressing the 

merits of such opposition. These changes attempt to ensure that all persons with access 

to CEII acknowledge their responsibilities while avoiding multiple filings from each 

organization. 

 D. Fee Provision

13. The Commission sought comments on its proposal to extend the fee schedule used 

for FOIA requests to CEII requests. One commenter, MidAmerican, states that it is 

appropriate to charge fees for processing CEII requests.24 MidAmerican further states 

that, provided the Commission’s administrative costs for processing CEII requests are 

similar to the costs of processing FOIA requests, it supports the Commission’s proposal. 

14. As explained in the NOPR, Commission staff expends valuable time and resources 

searching, reviewing, and copying documents responsive to CEII requests. The 

administrative costs of processing CEII requests are similar to the costs of processing 

FOIA requests. Therefore, the Commission’s regulations will be modified to extend the 

FOIA fee schedule to CEII requests. 

 

24 MidAmerican at p. 4. 
Docket No. RM06-23-000 - 9 -

 E. Responding to CEII Requests with Letters

15. While most commenters do not address the Commission’s proposal to issue letters 

rather than delegated orders in response to CEII requests, one commenter supports the 

proposal25 and two commenters oppose it.26 EEI asserts that the NOPR “forc[es] 

submitters who oppose release to pursue complex ‘reverse FOIA’ litigation rather than 

the much more straight forward rehearing request and appellate review.”27 SCE contends 

that the Commission’s CEII regulations were specifically designed to protect security and 

safety information, which is different from other confidential information. Therefore, 

SCE asserts that parties should not be denied remedies, including the right to rehearing, if 

they believe a serious security risk is posed by the release of CEII. 28

 Commission Determination 

16. In response to EEI’s observation that those who object to the CEII Coordinator’s 

and General Counsel’s decisions concerning access to CEII will have to seek judicial 

rather than Commission remedies, we take this opportunity to clarify and reiterate that a 

CEII Coordinator’s decision denying access to CEII may be appealed by a requester to 

the General Counsel as a FOIA appeal pursuant to section 388.110. That is the process 

 

25 MidAmerican at p. 2. 

26 SCE at pp. 3-4; EEI at pp. 5-6. 

27 EEI at p. 5. EEI contends that the September 21 Order’s combination of the 

notice and opportunity to comment with the notice of release eliminates due process 

rights of CEII submitters by reducing the notice period. The Commission addressed 

these concerns in Order No. 683-A at P 9-11. 

28 SCE at pp. 3-4. 
Docket No. RM06-23-000 - 10 -

contemplated in the Administrative Procedure Act29 for seeking information under the 

FOIA and there is no reason to have a different process for CEII requests.30

17. SCE is mistaken that the Commission has separate regulations for CEII because 

the information is “more sensitive than other non-public information.”31 To the contrary, 

as CEII, by definition, is exempt from disclosure pursuant to FOIA, 32 the Commission 

developed its CEII regulations as a disclosure mechanism to provide CEII to those with a 

legitimate need for it.33

 F. Landowners’ Access to Alignment Sheets 

18. In the NOPR, the Commission proposed to grant access to alignment sheets filed 

pursuant to section 380.12(c)(3)(ii) to landowners for routes across or in the vicinity of 

their properties.34 SCE does not oppose the proposal provided that the landowners 

receive only those sheets related to their properties and the alignment sheets retain the 

 

29 5 USC Subchapter II. 

30 Consistent with FOIA procedures, a CEII determination that withholds 

information will explain the appeal rights of the CEII requester. 

31 SCE at p. 3. 

32 In its comments, AGA states that there appears to be the potential for requesters 

to circumvent CEII protection by filing FOIA requests. AGA at pp. 5-6. But in the event 

documents containing CEII are deemed responsive to FOIA requests, they are exempt 

from mandatory disclosure pursuant to Exemption 7(F). See 5 U.S.C. § 552 (b)(7)(F). 

Therefore, CEII can only be obtained through the CEII process. 

33 See, e.g., Order No. 630 at P 16. 

34 NOPR at P 13. 
Docket No. RM06-23-000 - 11 -

CEII designation.35 Several commenters oppose this proposal and allege that granting 

access should be accompanied by a non-disclosure agreement or some other restriction on 

the publication of the information.36 EEI asserts that the Commission’s proposal is 

overbroad that that there must be a limit on access such as to those showing a substantial 

property nexus to the project.37 INGAA suggests that the Commission specify which 

landowners may obtain detailed alignment sheets by utilizing the definition of 

landowners entitled to notice under section 157.6(d)(2)38 of the Commission’s 

regulations.39 Dominion and Williston Basin state that there is some ambiguity 

concerning the proper classification of alignment sheets as CEII and seeks clarification of 

the type of information found in alignment sheets that could be considered CEII.40 

Williston Basin also seeks clarification on whether companies will be required to post the 

alignment sheets on their websites.41

 Commission Determination

19. The Commission notes that alignment sheets can be labeled CEII only if they 

contain qualifying detailed engineering information. Alignment sheets often do not 

 

35 SCE at p. 4. 

36 INGAA at pp. 3-4, AGA at pp. 4-5, Dominion at pp. 8-9, and EEI at p. 10. 

37 EEI at p. 10. 

38 18 CFR 157.6(d)(2) (2007). 

39 INGAA at pp. 3-4. 

40 Dominion at p. 9 and Williston Basin at p. 4. 

41 Williston Basin at p. 4. 
Docket No. RM06-23-000 - 12 -

contain such detail, and, therefore, will simply be public information. The Commission 

clarifies its proposal that, for alignment sheets that do contain CEII, each landowner 

access only the alignment sheet for the limited portion of a project that would affect his 

or her land and the adjacent parcel on each side (or those on the same alignment sheet). 

The Commission understands that a landowner may want to discuss the proposed project 

with other family members, with legal counsel, or others. The Commission will not limit 

such discussions by requiring a landowner to sign a non-disclosure agreement. The 

Commission further clarifies that it does not require that companies post alignment sheets 

on their websites yet acknowledges that companies may choose to do so based on their 

public participation plans. 

20. The Commission accepts INGAA's proposal to use the definition of landowner at 

18 CFR 157.6(d)(2) as the means of identifying which landowners may obtain alignment 

sheets containing CEII without executing non-disclosure agreements. 

 G. Forms containing CEII 

21. In the NOPR, the Commission provided guidelines for labeling specific 

documents submitted to the Commission as CEII. There were several comments 

regarding the guidelines.42 APPA and TAPS support the guidance.43 MidAmerican 

suggests that the Commission incorporate the guidelines into specific filing instructions 

 

42 APPA and TAPS at pp. 6-7, MidAmerican at p. 4, INGAA at pp. 6-7, and 

Williston Basin at p. 6 

43 APPA and TAPS at pp. 6-7. 
Docket No. RM06-23-000 - 13 -

for documents regularly filed with the Commission.44 INGAA and Williston Basin both 

note that the Commission did not include Exhibit G-II, which contains flow diagram data, 

in its guidelines for identifying CEII.45 They contend that this exhibit includes 

information that may be useful to those with intent to do harm and request that the 

Commission include Exhibit G-II in its guidelines as a document that contains CEII.46

 Commission Determination

22. The Commission clarifies that Exhibit G-II may contain CEII. Further, if an 

applicant believes that information in Exhibit G-II meets the definition of CEII, then the 

relevant part of the exhibit should be filed as CEII. Therefore, the Commission adopts 

the guidelines proposed in the NOPR with the addition of the Exhibit G-II as a document 

that may contain CEII.47

 H. Elimination of the Non-Internet Public Category

23. Two commenters support the Commission proposal to eliminate the NIP category 

of documents.48 Dominion states that abolishing NIP category will be more efficient and 

will make the information more accessible to interested parties. AGA asserts that the 

Commission’s proposal to eliminate NIP “appears to reflect the reality of the public’s 

 

44 MidAmerican at p. 4. 

45 INGAA at pp. 6-7 and Williston Basin at p. 6. 

46 Id.

47 NOPR at P 10-15. 

48 Dominion at p. 5 and AGA at p. 3. 
Docket No. RM06-23-000 - 14 -

continued access to energy infrastructure data from sources beyond the Commission’s 

control.”49

24. Several commenters oppose the elimination of the NIP designation claiming that 

elimination will make it easier for individuals with malicious intent to obtain locational 

information.50 Further, these commenters contend that the fact that such information is 

publicly available from other sources is not a valid reason to abolish the NIP designation. 

Rather, they contend that the Commission should set an example by retaining the NIP 

category to encourage other sources to be more cautious in their treatment of sensitive 

information. Before abolishing the NIP designation, NHA suggests that the Commission 

“make a last attempt to resolve the confusion through the issuance of additional guidance 

or outreach[.]”51

 Commission Determination

25. The Commission does not agree that NIP should be retained. Much of the 

information now designated as NIP is easily available on-line from other sources, such as 

the United States Geological Survey or commercial mapping firms. As such, retaining 

the NIP designation does not enhance security or safety. Further, the information is 

publicly available from the Commission’s Public Reference Room. Withholding this 

information from the Commission’s website may be perceived as a hindrance to 

individuals seeking to access public information. 

 

49 AGA at p. 3. 

50 EEI at pp. 9-10, Williston Basin at pp. 4-5, and INGAA at pp. 4-6. 

51 NHA at p. 2. 
Docket No. RM06-23-000 - 15 -

26. Regarding the approximately 5,400 NIP documents currently in the Commission’s 

e-library records, the NOPR proposed that these documents simply retain the NIP 

designation in e-library.52 The Commission has determined that this will create 

confusion. Therefore, the Commission will provide a sixty-day time period from the date 

this order is issued in which previous submitters of NIP may specifically identify any 

documents they believe may now qualify for CEII protection. After the sixty-day period, 

all NIP documents not identified as CEII will be made publicly available. 

27. Submitters of NIP who believe that the documents contain CEII should file 

requests with the Secretary in this docket (RM06-23-000) within sixty-days requesting 

that the designations be changed. Such requests should identify the specific documents 

by accession numbers and provide an accurate description of the documents. 

 I. State and Local Agencies’ Comments 

28. Several state agencies, organizations of states, and a county government requested 

that state agencies and those similarly situated be allowed to obtain CEII outside the 

normal process because they are entrusted with the public safety of their citizens.53 EEI 

contends that such agencies should not be allowed special access to CEII.54

 

52 A list of these documents may be obtained by performing an advanced search on 

e-library, selecting only “Non-Internet Public” in the “Availability” section. 

53 California State Agencies at pp. 8-10, County of Butte at pp. 2-3, WIEB and 

CREPC at pp. 7-8, NARUC at p. 12, and California Resources Agency at pp. 1-2. 
Docket No. RM06-23-000 - 16 -

 Commission Determination

29. The Commission will not allow state agencies and local governments special 

access to CEII on a generic basis because such entities (unlike other federal agencies) 

may not be required to maintain the documents in the way the Commission maintains 

them. Moreover, state FOIA laws vary, and generic access to CEII for state agencies and 

local governments may not sufficiently protect CEII from release pursuant to state law. 

Nonetheless, the Commission will utilize a case-by-case approach that may permit states 

and other governmental entities to enter into memoranda of understanding with the 

Commission to simplify access to CEII while ensuring appropriate protection of CEII. 

J. A Requestor Shall Submit a Date and Place of Birth upon Request; 

Social Security Numbers are not needed

30. Currently, section 388.113(d) requires that a requester provide his or her date and 

place of birth in each request for CEII. Experience in processing requests for CEII since 

issuance of Order No. 630 has shown that the legitimacy of a particular requester can 

usually be determined from information other than the requester’s date and place of birth. 

However, occasionally, a date and place of birth are needed to assess the legitimacy of a 

requester. Therefore, we are revising section 388.113(d) to obtain that information on a 

case-by-case basis rather than obtain it in every instance. When needed, the CEII 

Coordinator will ask the requester to provide his or her date and place of birth to process 

the request for CEII. 

 

54 EEI Reply Comments at p. 6 
Docket No. RM06-23-000 - 17 -

31. In a similar vein, the Commission will revise section 388.113(d) to eliminate the 

request for voluntary submission of social security numbers. Again, experience has 

shown that social security numbers are not needed to determine the legitimacy of 

requesters. 

32. These revisions will minimize privacy concerns regarding the Commission’s 

collection and maintenance of personally identifiable information without compromising 

security regarding the release of CEII. 

 K. Miscellaneous Issues

33. The Department of the Interior states that the NOPR offers a more efficient 

process for handling CEII requests. Nonetheless, the Department of the Interior contends 

that it needs ready access to such information.55 In Order No. 662, the Commission 

modified its CEII regulations to simplify federal agencies’ access to CEII.56 Pursuant to 

section 388.113(d)(2) of the Commission’s regulations, “An employee of a federal 

agency acting within the scope of his or her federal employment may obtain CEII directly 

from Commission staff without following the procedures outlined in paragraph (d)(3) of 

this section.” 

34. APPA and TAPS state that the time frame for requesting, obtaining, and reviewing 

CEII is insufficient in market-based rate proceedings that routinely provide a notice 

 

55 Department of the Interior at p. 2. 

56 See Critical Energy Infrastructure Information, Order No. 662, 70 FR 37,031 

(June 28, 2005), FERC Stats. & Regs. ¶ 31,189 (2005) (Order No. 662). 
Docket No. RM06-23-000 - 18 -

 

period of 21 days.57 As the Commission explained in Order No. 662, it is willing to 

consider on a case-by-case basis requests for extensions of time to prepare protests to 

market-based rate filings where an intervenor demonstrates that it needs additional time 

to obtain and analyze CEII.58 The Commission further encourages the parties in cases in 

which CEII is filed to promptly negotiate a protective order in the proceeding.59 

Moreover, the Commission, in its NOPR regarding market-based rates for wholesale 

sales of electric energy, capacity and ancillary services by public utilities, sought 

comments on whether CEII designations remain a concern since issuance of Order 

No. 662.60 In the market-based rate Final Rule, the Commission adopted procedures, 

now codified as section 37.35(f) of the Commission’s regulations, to ensure that 

intervenors have prompt access to relevant information for which privileged treatment, 

including CEII, is claimed.61

35. In the NOPR, the Commission stated that it “retains its concern for CEII filing 

abuses and will take action against applicants or parties who knowingly misfile 

57 APPA and TAPS at pp.4-5. 

58 Order No. 662 at P 25.

59 Id. 

60 Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and 

Ancillary Services by Public Utilities, 71 FR 33102, FERC Stats. & Regs. ¶ 32,602 

(2006) (MBR NOPR). 

61 See also Market-Based Rates for Wholesale Sales of Electric Energy, Capacity 

and Ancillary Services by Public Utilities, Order No. 697, 119 FERC ¶ 61,295 (June 21, 

2007) (market-based rate Final Rule). 
Docket No. RM06-23-000 - 19 -

 

information as CEII, including rejection of an application where information is 

mislabeled as CEII.”62 While some commenters welcome the Commission’s reminder 

regarding filing abuses, 63 several commenters express concern.64 Dominion requests 

that the Commission clarify that errors in classification based upon a reasonable, good 

faith interpretation of the Commission’s regulations will not result in a rejection of a 

filing.65 Dominion and NHA both recommend that the Commission reject a license 

application only as a measure of last resort and only for the most egregious of cases.66 

NHA further recommends continued outreach to the industry to reduce designation 

errors.67 EEI urges the Commission to notify the submitter of the information if the 

Commission believes that he or she has improperly labeled information as CEII or if the 

submitter has failed to provide a justification for treating the information as CEII.68

36. The Commission has continuously sought to dissuade applicants from carelessly 

using the CEII designation because such misuse prevents interested parties and other 

members of the public with a legitimate need from accessing information in a timely 

manner. The Commission stated as a reminder in the NOPR that applications may be 

62 NOPR at P 16. 

63 APPA and TAPS at p. 6 and AGA at p. 3. 

64 NHA at pp. 1-2, Dominion at pp. 10-12, and EEI at pp. 8-9. 

65 Dominion at p. 11. 

66 Dominion at p. 12 and NHA at p. 2. 

67 Id.

68 EEI at p. 9. 
Docket No. RM06-23-000 - 20 -

 

rejected for failing to comply with the Commission’s regulations at 18 CFR 

388.112(b)(1).69 As the Commission explained in the Order No. 683-A, “[i]n instances 

in which documents are rejected for filing, the rejection is usually without prejudice and 

no substantive rights are lost. The application must merely be refiled in accordance with 

the procedural requirements.”70 

37. The Commission agrees that continued outreach will help to diminish designation 

errors. To this end, the Secretary of the Commission will continue to post filing guidance 

on the Commission’s website. 

38. The Commission will also revise section 388.112(d) to reflect an internal 

procedural change. Section 388.112(d) currently provides that, when a FOIA or CEII 

request is received for information that was submitted to the Commission with a claim of 

privilege or CEII status, or when the Commission is considering release of such 

information, the Commission official who will determine whether to release the 

information will notify the submitter and provide an opportunity to comment. But in 

many instances, it is practical for an individual other than the official responsible for 

determining whether to release the information to provide such notice. Therefore, the 

Commission has decided to revise section 388.112(d) of its regulations to provide that 

any appropriate official may provide notice to the submitter.

69 NOPR at P 16-17. 

70 Order No. 683-A, P 12. 
Docket No. RM06-23-000 - 21 -

Information Collection Statement

39. The Office of Management and Budget’s (OMB’s) regulations require that OMB 

approve certain information collection requirements imposed by agency rule.71 This final 

rule does not impose any additional information collection requirements. Therefore, the 

information collection regulations do not apply to this final rule. 

Environmental Analysis

40. 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.72 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.73 This rule is procedural in nature and therefore falls under this exception; 

consequently, no environmental consideration is necessary. 

Regulatory Flexibility Act Certification

41. The Regulatory Flexibility Act of 198074 generally requires a description and 

analysis of final rules that will have significant economic impact on a substantial number 

 

715 CFR 1320.12. 

72 Order No. 486, Regulations Implementing the National Environmental Policy 

Act, 52 Fed. Reg. 47,897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 

¶ 30,783 (1987). 

73 18 CFR 380.4(a)(2)(ii). 

74 5 U.S.C. 601-612. 
Docket No. RM06-23-000 - 22 -

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 rule would not have such an 

impact on small entities. 

Document Availability

42. 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 5:00 p.m. Eastern time) at 888 First Street, N.E., Room 2A, 

Washington D.C. 20426. 

43. 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. 

44. User assistance is available for eLibrary and the FERC’s website 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). 
Docket No. RM06-23-000 - 23 -

Effective Date

45. These regulations are effective [insert 30 days after publication in the 

FEDERAL REGISTER]. 

46. 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 in 18 CFR Part 388

Confidential business information, Freedom of information. 

By the Commission. 

( S E A L ) 

 

 

 Kimberly D. Bose, 

 Secretary. 
Docket No. RM06-23-000 - 24 -

 In consideration of the foregoing, the Commission amends part 388, Chapter I, 

Title 18, Code of Federal Regulations, as follows: 

PART 388 – INFORMATION AND REQUESTS 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. Section 388.109 is amended by revising paragraph (b) to read as follows: 

§ 388.109 Fees for record requests. 

* * * * * 

(b) Fees for records not available through the Public Reference Room (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 set forth in Sec. 388.110. 

3. Section 388.112 is amended by deleting paragraph (a)(3) and revising paragraph and 

(b) to read as follows: 

§ 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: 
Docket No. RM06-23-000 - 25 -

(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. 

(d) Notification of request and opportunity to comment. When a FOIA or CEII 

requester seeks a document for which privilege or CEII status has been claimed, 

or when the Commission itself is considering release of such information, the 

Commission official who will decide whether to release the information or any 

other appropriate Commission official will notify the person who submitted the 

document and give the person an opportunity (at least five calendar days) in 

which to comment in writing on the request. A copy of this notice will be sent to 

the requester. 

* * * * * 

4. Section 388.113 is amended by adding paragraph (d)(3), redesignating paragraph 

(d)(3) as paragraph (d)(4), revising newly designated paragraph (d)(4), 

redesignating paragraph (d)(4)(iii) as paragraph (d)(4)(vii), adding new paragraphs 
Docket No. RM06-23-000 - 26 -

(d)(4)(ii),(iii), (iv), (v) and (vi) and adding a new paragraph (e) to read as follows: 

§ 388.113 Accessing critical energy infrastructure information. 

* * * * * 

(d) * * * 

(3) A landowner whose property is crossed by or in the vicinity of a project may 

receive detailed alignment sheets containing CEII directly from Commission staff 

without submitting a non-disclosure agreement as outlined in paragraph (d)(4) of 

this section. A landowner must provide Commission staff with proof of his or her 

property interest in the vicinity of a project. 

(d)(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)), 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. A requester shall provide his or her date 

and place of birth upon request, if it is determined by the CEII Coordinator that 

this information is necessary to process the request. Unless otherwise provided in 

Section 113(d)(3), a requester must also file an executed non-disclosure 

agreement. 
Docket No. RM06-23-000 - 27 -

(ii) 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 all the requesters agree to be bound by a non-disclosure 

agreement that must be executed by and will be applied to all individuals who 

have access to the CEII. 

(iii) After 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. 

(iv) If the CEII Coordinator determines that the CEII requester has not 

demonstrated a valid or legitimate need for the CEII or that access to the CEII 

should be denied for other reasons, this determination may be appealed to the 

General Counsel pursuant to § 388.110 of this Chapter. The General Counsel 

will (1) decide whether the information is properly classified as CEII, which by 

definition is exempt from release under FOIA, and (2) whether the Commission 

should in its discretion make such CEII available to the CEII requester in view of 

the requester’s asserted legitimacy and need. 

(v) 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 
Docket No. RM06-23-000 - 28 -

the remainder of that calendar year. Such a requester is not required to provide 

detailed information about him or herself with subsequent requests during the 

calendar year. He or she is also not required to file a non-disclosure agreement 

with subsequent requests during the calendar year because the original nondisclosure agreement will apply to all subsequent releases of CEII. 

(vi) If an organization is granted access to CEII as provided by paragraph 

(d)(4)(iii) of this section, and later seeks to add additional individuals to the nondisclosure agreement, the names of these individuals must be sent to the CEII 

Coordinator with certification that notice has been given to the submitter. Any 

newly added individuals must execute a supplement to the original non-disclosure 

agreement indicating their acceptance of its terms. If there is no written 

opposition within five (5) days of notifying the CEII Coordinator and the 

submitter concerning the addition of any newly-named individuals, the CEII 

Coordinator will issue a standard notice accepting the addition of names to the 

non-disclosure agreement. If the submitter files a timely opposition with the CEII 

Coordinator, the CEII Coordinator will issue a formal determination addressing 

the merits of such opposition. 

(e) Fees for processing CEII requests will be determined in accordance with 18 

C.F.R. § 388.109. 

* * * * * 
Docket No. RM06-23-000 - 29 -

APPENDIX A 

List of Commenters 

Abbreviation Name 

Alleghany Allegheny Power and Allegheny Energy Supply 

Company, L.L.C. 

AGA American Gas Association 

APPA and 

TAPS 

American Public Power Association and Transmission 

Access Policy Study Group 

Butte County Butte County, California 

California Resources California Resources Agency 

California State 

Agencies 

California Coastal Commission, California Energy 

Commission, California Electricity Oversight Board, and 

California State Lands Commission 

Dominion Dominion Transmission Inc., Dominion Cove Point, 

LNG, LP, and Dominion South Pipeline Company, LP 

EEI Edison Electric Institute 

INGAA Interstate Natural Gas Association of America 

MidAmerican MidAmerican Energy Company 

NARUC National Association of Regulatory Utility 

Commissioners 

NHA National Hydropower Association 

SCE Southern California Edison Company 

Western Energy Board Western Interstate Energy Board and Committee on 

Regional Electric Power Cooperation 

Williston Basin Williston Basin Interstate Pipeline Company 

Department of the 

Interior 

United States Department of the Interior