UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

18 CFR Part 388 

(Docket No. RM06-24-000; Order No. 683) 

Critical Energy Infrastructure Information 

(Issued September 21, 2006) 

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 definition of CEII is being clarified to exclude information that 

the Commission never intended to be deemed as containing critical infrastructure 

information. In addition, procedural changes are being made based on over three years 

experience processing CEII requests. These changes simplify the procedures for 

obtaining access to CEII without increasing vulnerability of the energy infrastructure. 

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

publication in the FEDERAL REGISTER]. 

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: 
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. RM06-24-000 

 

ORDER NO. 683 

FINAL RULE 

(Issued September 21, 2006) 

1. It has been over three years since the Commission issued its final order on Critical 

Energy Infrastructure Information (CEII). See 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). Since the issuance of Order No. 630, the Commission has 

continually monitored and evaluated the effectiveness of the CEII process. The most 

recent review indicates that changes are needed to assure the rules work in the manner 

intended. 

2. As explained below, the Commission makes strictly procedural changes in this 

instant and final rule. In a notice of proposed rulemaking in Docket No. RM06-23-000, 

which is being issued concurrently with this final rule, the Commission proposes other 

changes, which require notice and comment. See 5 USC § 553 (2000). 

3. In this final rule the Commission clarifies and limits the definition of CEII to 

minimize the amount of information which qualifies as CEII, and makes the following 
Docket No. RM06- 24-000 - 2 -

changes to its regulations: (1) the definition of CEII is clarified; and (2) requesters are 

required to submit executed non-disclosure agreements (NDA) with their requests. In 

addition, the Commission is providing notice that, for CEII requests, the notice and 

opportunity to comment on a request will be combined with the notice of release. The 

Commission further takes this opportunity to reiterate its requirement that submitters 

segregate CEII from other information and file as CEII only information which truly 

warrants being kept from public access. Accordingly, this rule is being issued as an 

instant and final rule because it only concerns procedural matters. See 5 USC § 553 

(b)(3)(A) (2000).

4. In a notice of proposed rulemaking in Docket No. RM06-23-000 issued 

concurrently with this final rule, the Commission seeks comments on, among other 

things: (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. 

Background

5. 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 
Docket No. RM06- 24-000 - 3 -

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. See 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. See 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. See 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 a 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. See 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 
Docket No. RM06- 24-000 - 4 -

federal agencies’ access to CEII. See Order No. 662, 70 FR 37031, FERC Stats. & Regs. 

¶ 31,189 (2005). 

Summary And Discussion 

I. Regulatory Changes

A. Clarification of what constitutes CEII

6. The CEII regulations were designed to restrict unfettered general public access to 

critical energy infrastructure information, but still permit those with a need for the 

information to obtain it in an efficient manner. In other words, CEII reflects a delicate 

balance between the due process rights of interested persons to participate fully in 

Commission proceedings and the Commission’s responsibility to protect public safety by 

ensuring that access to CEII does not facilitate acts of terrorism. Although CEII was 

intended only to protect detailed information that would aid a terrorist attack, many 

submitters over utilize the designation. Therefore, the Commission is specifically 

clarifying and refining the definition to better inform companies of what constitutes CEII 

to limit the amount of material which constitutes CEII. CEII is clarified as specific 

engineering, vulnerability, or detailed design information about proposed or existing 

critical infrastructure that: (1) relates details about the production, generation, 

transportation, transmission, or distribution of energy; (2) could be useful to a person in 

planning an attack on critical infrastructure; (3) is exempt from mandatory disclosure 

under the Freedom of Information Act, 5 U.S.C. 552 (2000); and (4) does not simply give 

the general location of the critical infrastructure. The particular clarifications consist of 

adding the words “specific engineering, vulnerability, or detailed design” at the 
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beginning of § 388.113(c)(1) and adding the words “details about” at the beginning of 

§ 388.113(c)(1)(i). 

7. The Commission further clarifies that narratives such as the descriptions of 

facilities and processes are generally not CEII unless they describe specific engineering 

and design details of critical infrastructure. 

B. Requirement to provide an executed non-disclosure agreement with a 

CEII request

8. Requesters will now be required to submit an executed non-disclosure agreement 

with their signed requests. As CEII contains information that may be used to harm the 

critical infrastructure of the United States, it is only fitting to require that a requester 

execute an agreement not to disclose the information, and provide that agreement with his 

or her request. Often processing of a request is delayed because the requester does not 

promptly submit an executed non-disclosure agreement upon request. Posted on the 

Commission’s website at www.ferc.gov are the various non-disclosure agreements that 

pertain to various types of requesters. For example, a member of the media should 

submit the non-disclosure agreement entitled Media NDA. If a requester does not know 

the appropriate non-disclosure agreement to submit with his or her request, he or she may 

contact the Office of External Affairs at (202) 502-8004. Including an executed nondisclosure agreement with an executed request will help to expedite processing of 

requests. A CEII request will not be accepted until the Commission receives an executed 

NDA. 
Docket No. RM06- 24-000 - 6 -

II. Reiteration of current regulatory standards 

A. Notice and opportunity to comment and notice prior to release

9. Section 388.112(d) of the Commission’s regulations provides that, among other 

things, when a CEII requester seeks a document for which CEII status has been claimed, 

or when the Commission itself is considering releasing such a document, the Commission 

will provide the submitter of the document notice and an opportunity to comment. 

18 CFR § 388.112(d) (2006). Section 388.112(e) of the Commission’s regulations 

provides that, among other things, the Commission or an appropriate official will give 

notice to the submitter prior to release of a document for which CEII status has been 

claimed. 18 CFR § 388.112(e) (2006). In processing CEII requests, it has been the 

practice of the Commission to issue these notifications separately. Henceforth, the 

Commission will provide the notice and opportunity to comment in the same document 

as the notice of release. 

10. The Commission acknowledges that the notice and comment process affords the 

Commission the opportunity to get information on the requester from the submitter, who 

may be most familiar with the requester, and the opportunity to get the submitter’s input 

into potential harm from release of the information. However, experience has shown that 

only in a limited number of requests has the submitter provided information about the 

requester. In many instances, the submitter provides a boilerplate response that does not 

address release of information to a particular requester. In an effort to increase the 

efficiency of processing CEII requests, the Commission will combine the notice of 

release with an opportunity to comment. Submitters may still provide comments or input 
Docket No. RM06- 24-000 - 7 -

upon notice of release. The release would proceed as scheduled unless the CEII 

Coordinator or her designee receives opposition to release, in which case the CEII 

Coordinator or his or her designee will issue a revised notice. The vast majority of 

submitters support release with a properly executed NDA. Only in extremely rare 

instances would a submitter’s comments be the determinative factor in not releasing 

CEII. These rare instances should not impede an efficient CEII process. In the event a 

submitter provides comments opposing release, the information would not be released 

until the submitter receives a revised notice of release. 

B. Requirement to segregate and justify CEII 

11. 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 reiterates its requirement that submitters 

segregate public information from CEII and file as CEII only information which truly 

warrants being kept from ready public access. 

12. 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. 
Docket No. RM06- 24-000 - 8 -

C. Enforcement of proper designation and justification

13. The Commission retains its concern for 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 or where a legal justification is 

not provided. Further, concurrent with this order, the Commission is issuing a notice of 

proposed rulemaking in Docket No. RM06-23-000 seeking comments on its proposal to, 

among other things, clarify what specific portions of various forms and reports submitted 

to the Commission contain CEII. 

Information Collection Statement

14. 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 final rule does not impose any additional information collection 

requirements. Therefore, the information collection regulations do not apply to this final 

rule. 

Environmental Analysis

15. 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. See 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 
Docket No. RM06- 24-000 - 9 -

procedural or that do not substantially change the effect of the regulations being 

amended. See 18 CFR 380.4(a)(2)(ii) (2006). This rule is procedural in nature and 

therefore falls under this exception; consequently, no environmental consideration is 

necessary. 

Regulatory Flexibility Act Certification

16. The Regulatory Flexibility Act of 1980 (RFA) generally requires a description and 

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

of small entities. 5 U.S.C. 601-612 (2000). The Commission is not required to make 

such analyses if a rule would not have such an effect. The Commission certifies that this 

rule will not have such an impact on small entities. 

Document Availability

17. 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. 

18. 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. 
Docket No. RM06- 24-000 - 10 -

19. 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). 

Effective Date

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

FEDERAL REGISTER]. The provisions of 5 U.S.C. 801 (2000) 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 ) 

Magalie R. Salas, 

Secretary. 
Docket No. RM06- 24-000 - 11 -

 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 

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. In § 388.113, paragraphs (c)(1), (d)(3)(i), and (d)(3)(ii) are revised to read as 

follows: 

§ 388.113 Accessing critical energy infrastructure information. 

* * * * * 

(c) Definitions. For purposes of this section: 

(1) Critical energy infrastructure information means specific engineering, 

vulnerability, or detailed design information about proposed or existing critical 

infrastructure that: 

(i) Relates details about the production, generation, transportation, transmission, or 

distribution of energy; 

(ii) Could be useful to a person in planning an attack on critical infrastructure; 

(iii) Is exempt from mandatory disclosure under the Freedom of Information Act, 

5 U.S.C. 552; and 

(iv) Does not simply give the general location of the critical infrastructure. 

(d) * * * 

(3) * * * 
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(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 names(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. A requester must also file an executed non-disclosure agreement. 

Requesters are also requested to include their social security number for identification 

purposes. 

(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. The CEII Coordinator’s decisions regarding release of CEII 

are subject to rehearing as provided in § 385.713 of this chapter. Copies of requests for 

rehearing of the CEII Coordinator’s decision must be served on the CEII Coordinator and 

the Associate General Counsel for General Law. 

* * * * *