UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

 18 CFR Part 388 

 (Docket No. RM06-24-001; Order No. 683-A) 

Critical Energy Infrastructure Information 

(Issued April 9, 2007) 

AGENCY: Federal Energy Regulatory Commission. 

ACTION: Final Rule, Order on Rehearing. 

SUMMARY: On September 21, 2006, the Commission issued a final rule that clarified 

the definition of Critical Energy Infrastructure Information (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. The Commission is denying the petition for rehearing 

filed by Edison Electric Institute. 

EFFECTIVE DATE: This order denying rehearing of the final 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 

Federal Energy Regulatory Commission 

888 First Street, N.E. 

Washington, DC 20426 

Phone (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 No. RM06-24-001 

ORDER NO. 683-A 

 ORDER ON REHEARING 

(Issued April 9, 2007) 

1. This order addresses the request for rehearing filed by Edison Electric Institute 

(EEI) of the Commission's September 21, 2006 Order in this proceeding (September 21 

Order), a final rule that clarified the definition of Critical Energy Infrastructure 

Information (CEII), required requesters of CEII to submit executed non-disclosure 

agreements (NDA) 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. 

Critical Energy Infrastructure Information, Order No. 683.1

 This order denies EEI’s 

request for rehearing for the reasons explained below. 2

 

 

1

 71 Fed. Reg. 58,273 (October 3, 2006), FERC Stats. & Regs. ¶ 31,228 (2006). 

 2 The California Coastal Commission, California Energy Commission, California 

Electricity Oversight Board, and California State Lands Commission (collectively the 

California State Agencies) filed a request for reconsideration. Although labeled as a 

“Request for Reconsideration,” the request is actually an untimely request for rehearing. 

As explained below, the Commission has long held that it lacks authority to consider 

requests for rehearing filed more than 30 days after issuance of a Commission order. 
Docket No. RM06-24-001 

 

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Background 

2. 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.

3

 The Commission issued a final rule on CEII on February 21, 2003, defining 

CEII to include information about proposed facilities, as well as facilities already 

licensed or certificated by the Commission, and to exclude information that simply 

identified the location of the infrastructure. See Order No. 630.4

 The final rule also 

established the position of CEII Coordinator. The Commission issued Order No. 630-A 

on July 23, 2003, 5 which made several minor procedural changes and clarifications, 

added a reference in the regulation regarding the filing of Non-Internet Public (NIP) 

information, a term first described in Order No. 630,6

 and added a commitment to review 

the effectiveness of the new process after six months. 

 

3

 66 Fed. Reg. 52917 (Oct. 18, 2001), 97 FERC ¶ 61,130 (2001). 

4

 68 Fed. Reg. 9857, FERC Stats. & Regs. ¶ 31,140 (Mar. 3, 2003). 

5

 68 Fed. Reg. 46456, FERC Stats. & Regs. ¶ 31,147 (Aug. 6, 2003) 

6 NIP information includes location maps and diagrams that do not rise to the level 

of CEII. Order No. 630 provided the following examples of NIP: “(1) USGS 7.5 minute 

topographic maps showing the location of pipelines, dams, or other aboveground 

facilities, (2) alignment sheets showing the location of pipeline and aboveground 

facilities, right of way dimensions, and extra work areas; (3) drawings showing site or 

project boundaries, footprints, building locations and reservoir extent; and (4) general 

location maps.” 68 FR 9857, FERC Stats. & Regs. ¶ 31,140.
Docket No. RM06-24-001 

 

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3. Simultaneous with the issuance of the September 21 Order, the Commission 

issued a notice of proposed rulemaking (NOPR) in Docket No. RM06-23-000.7

 In the 

September 21 NOPR, the Commission sought comments on the revisions to its 

regulations to: (1) allow an annual certification for repeat requesters; (2) allow an 

authorized representative of an organization to execute an NDA on behalf of the 

organization’s employees; (3) include a fee provision; (4) respond to CEII requests by 

letters from the CEII Coordinator rather than by Commission orders with rights to 

rehearing; and (5) allow landowners access to alignment sheets for the routes across or in 

the vicinity of their properties. The September 21 NOPR also proposed to narrow the 

scope of information on Commission forms that are defined as containing CEII and 

proposed to abolish the NIP designation. 

Requests for Rehearing

4. On October 23, 2006, EEI filed a timely request for rehearing of the September 21 

Order, and requested that the Commission revoke its September 21 Order and reissue it 

as a new notice of proposed rulemaking to be considered with the September 21 NOPR. 

EEI alleged that the Commission did not provide the due process protections of the 

Administrative Procedure Act (APA), 5 USC § 553, because the September 21 Order: 

 

7

 71 Fed. Reg. 58,325 (October 3, 2006), FERC Stats. & Regs. ¶ 32,607 (2006)

(September 21 NOPR). 
Docket No. RM06-24-001 

 

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(1) modified the definition of CEII without proper notice and comment; (2) combined the 

notice and opportunity to comment with the notice of release; and (3) permitted the CEII 

Coordinator to enforce the CEII regulations by rejecting applications if information is 

mislabeled or legal justifications for CEII are not provided. 

5. On November 2, 2006, the California State Agencies filed an untimely request for 

reconsideration. The California State Agencies requested that the CEII Coordinator 

allow flexibility to allow state agencies to execute non-disclosure agreements which 

depart from the standard state agency NDA found on the Commission’s website. The 

California State Agencies further requested that the Commission amend its CEII 

regulations to exclude state agencies from the requirement of showing a need for access 

in their CEII requests, and to require the CEII Coordinator to grant state agencies access 

to CEII upon receiving a completed CEII request, including an executed NDA in a format 

acceptable to the Commission. 

Discussion

 Procedural Issues

6. The California State Agencies’ request for reconsideration is equivalent to an 

untimely request for rehearing.8

 Rule 713 of the Commission’s Rules of Practice and 

 

8

 We decline to treat the request for rehearing as a request for reconsideration. 

Granting such a request would in effect treat the rehearing request as if it had been timely 

filed. See Midwest Independent Transmission System Operator, Inc., 112 FERC 

¶ 61,211 at P 10 (2005); Golden Valley Power Company, 114 FERC ¶ 61,212 at P 6 

(2006). 
Docket No. RM06-24-001 

 

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Procedure requires that requests for rehearing be made within thirty days of the date of 

the order.9

 Rule 713(a)(1) provides that the rule is applicable “to any request for 

rehearing of a final Commission decision or other final order.”10 The final date for filing 

a request for rehearing of the September 21 Order was October 23, 2006,11 a deadline not 

met by the California State Agencies. However, the California State Agencies also filed 

their “Comments and Request for Reconsideration” in response to the September 21 

NOPR. Their comments address issues raised in the September 21 NOPR and will be 

considered in that proceeding. 

EEI’s Request for Rehearing 

Clarification of the Definition of CEII

7. EEI’s contention that any modification to the definition of CEII is substantive is 

without merit. The APA provides exemptions to its notice and comment rulemaking 

requirements. See 5 USC § 553 (b)(A). Specifically, interpretative rules, general 

statements of policy, or rules of agency organization, procedure, or practice are exempt. 

Id. As the Commission’s September 21 Order interprets its definition of CEII, it is not a 

substantive change requiring notice and comment. The Commission may interpret and 

 

9

 18 CFR § 385.713 (2006). 

10 18 CFR § 385.713 (a)(1) (2006). 

11 The expiration of the thirty-day period, October 21, 2006, fell on a Saturday; 

therefore, the filing deadline for requests for rehearing was October 23, 2006, the next 

business day. 
Docket No. RM06-24-001 

 

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clarify its regulations without making a substantive change. Courts have found that 

agency rules explaining terms in statutes and regulations are interpretive.12 Courts have 

also held that rules that merely restate existing duties, rather than creating new duties, are 

interpretive.13 

8. A clarification “does not . . . become an amendment merely because it supplies 

crisper and more detailed lines than the authority being interpreted.”14 Previously, the 

regulation stated that “Critical energy infrastructure information means information about 

proposed or existing critical infrastructure that: (i) Relates to 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 USC 552; and (iv) Does not simply give the 

location of the critical infrastructure.” 18 CFR § 388.113(c)(1). The September 21 Order 

 

12 See, e.g., American Postal Workers Union v. United States Postal Service, 

707 F.2d 548, 559-60 (D.C. Cir. 1983) (finding that the postal service’s new method of 

calculating retirement benefits was interpretive because adoption of the method turned on 

the agency’s understanding of the statutory term “average pay”), cert. denied, 465 U.S. 

1100 (1984). 

13 See, e.g., General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. 

Cir. 1984) (finding interpretive a rule that restated consistent agency practice based on 

the Environmental Protection Agency’s understanding of the recall provision of the Clean 

Air Act), cert. denied, 471 U.S. 1074 (1985). 

14 American Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106, 

1112 (D.C. Cir. 1993). 
Docket No. RM06-24-001 

 

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explained that “information about proposed or existing critical infrastructure” means 

“specific engineering, vulnerability, or detailed design information about proposed or 

existing critical infrastructure.”15 The clarification explained the existing term 

“information.” The clarification serves to advise the public of the Commission’s 

construction of the term information as defined in Order No. 630. The September 21 

Order also clarified the meaning of “relates to the production, generation, transportation, 

transmission, or distribution of energy.” The September 21 Order advised the public that 

it is the “details about the production, generation, transportation, transmission, or 

distribution of energy” that the Commission deems CEII.16 These explanations and 

clarifications are merely interpretations and notice and comment are unnecessary. 

Combination of the Notice and Opportunity to Comment with the 

Notice of Release

9. EEI is mistaken that the combination of the notice and opportunity to comment 

with the notice of release eliminates due process rights of CEII submitters or reduces the 

notice from ten days to five days. Pursuant to 18 CFR § 388.112, any person submitting 

documents to the Commission may request special treatment of some or all of the 

information found in the documents. Paragraph (d) of this section provides the standards 

for notifying the submitter of a request for the information, and states: 

 

15 September 21 Order at P 6. 

16 Id. 
Docket No. RM06-24-001 

 

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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 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. 

Paragraph (e) of this section provides the standards for notification prior to release of 

documents for which privileged treatment was requested, and states: 

Notice of a decision by the Director, Office of External Affairs, the 

Chairman of the Commission, the General Counsel or General 

Counsel's designee, a presiding officer in a proceeding under 

part 385 of this chapter, or any other appropriate official to deny a 

claim of privilege in whole or in part, or to make a limited release 

of CEII, will be given to any person claiming that information is 

privileged or CEII no less than five days before public disclosure. 

The notice will briefly explain why the person's objections to 

disclosure are not sustained by the Commission. A copy of this 

notice will be sent to the FOIA or CEII requester. 
Docket No. RM06-24-001 

 

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Thus, when the submitter of information requests confidential or CEII treatment of that 

information and opposes its release, the Commission will, by regulation, notify the 

submitter at least five days prior to disclosure. This allows the submitter an opportunity 

to respond, as well as to pursue an injunction against release in district court. 

10. The Commission’s regulations do not require separation of the opportunity to 

comment and notice of release. However, it was the Commission’s practice in processing 

CEII requests to issue these notifications separately. As the Commission explained in its 

September 21 Order, combining the two will increase the efficiency of processing CEII 

requests. See September 21 Order at P 9-10. But those opposing release will continue to 

have ten days of notice before the information is released. 

11. Contrary to EEI’s assertion, there is no inconsistency in the application of the rules 

to CEII and FOIA requests. The combined notice that the Commission sends pursuant to 

the September 21 Order explains that a submitter has an opportunity (5-day minimum) to 

submit timely comments opposing release. See 18 CFR § 388.112(d). It further explains 

that if the submitter provides timely comments, he or she will be notified in advance of 

the release of any information in accordance with 18 C.F.R § 388.112(e) (another 5-day 

minimum). In other words, if the submitter provides comments, a second notice of 

release follows the first (a total of 10-day minimum). In the event timely comments 

opposing release are not received, the combined notice constitutes notice of release of the 

specified document in accordance with 18 CFR § 388.112(e), subject to an appropriate 
Docket No. RM06-24-001 

 

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non-disclosure agreement. The combined opportunity to comment and notice of release 

does not reduce the submitter’s opportunity to respond or to pursue judicial relief. 

Requirements to Comply with Procedural Requirements

12. The September 21 Order states that an application will be rejected in its entirety if 

information is mislabeled as CEII or a legal justification for CEII is not provided. The 

purpose of that rule is to dissuade applicants from carelessly using the CEII designation 

because such misuse prevents interested parties and other deserving members of the 

public from accessing needed information in the timeliest manner. As the Commission 

said in the September 21 NOPR, the “Commission retains its concern for CEII filing 

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

information as CEII.”17 The Commission disagrees with EEI’s assertion that rejection is 

unacceptably harsh. Applications are frequently rejected for failure to comply with 

procedural requirements. See, e.g., ANR Pipeline Co., 103 FERC ¶ 61,261 at P 8 (2003) 

(rejecting filing without prejudice to filing a fully supported application in accordance 

with the Commission’s regulations). In instances in which documents are rejected for 

filing, the rejection is usually without prejudice and no substantive rights are lost. Id. 

The application must merely be refiled in accordance with the procedural requirements. 

That is not harsh, but rather promotes the proper use of the CEII designation. 

 

17 September 21 NOPR at P 17. 
Docket No. RM06-24-001 

 

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The Commission orders: 

 EEI’s request for rehearing is denied as described above. The California State 

Agencies’ request for reconsideration is rejected in this docket as untimely filed. 

 By the Commission. 

( S E A L ) 

 Philis J. Posey, 

 Acting Secretary.