157 FERC ¶ 61,123

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Parts 375 and 388

[Docket Nos. RM16-15-000 and RM15-25-001; Order No. 833]

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

(Issued November 17, 2016)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

SUMMARY: The Federal Energy Regulatory Commission (Commission) amends its 

regulations to implement provisions of the Fixing America’s Surface Transportation Act

that pertain to the designation, protection and sharing of Critical Electric Infrastructure 

Information. Additionally, the Commission amends its regulations addressing Critical 

Energy 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 Nos. RM16-15-000 and RM15-25-001 - 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:
157 FERC ¶ 61,123

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Norman C. Bay, Chairman;

 Cheryl A. LaFleur, and Colette D. Honorable. 

Regulations Implementing FAST Act Section Docket Nos. RM16-15-000

61003 – Critical Electric Infrastructure 

Security and Amending Critical Energy

Infrastructure Information

Availability of Certain North American Electric RM15-25-001

Reliability Corporation Databases to the Commission

ORDER NO. 833

 

FINAL RULE

(Issued November 17, 2016)

1. The Commission amends 18 CFR sections 375.309, 375.313, 388.112 and 388.113 

of its regulations to implement the requirements of the Fixing America’s Surface 

Transportation (FAST) Act as set forth in section 215A(d)(2) of the Federal Power Act

(FPA).

1

 The Commission also amends its existing Critical Energy Infrastructure 

Information procedures. These changes are intended to comply with the FAST Act as 

well as improve the overall efficiency of the Commission’s procedures for certain 

 1 Fixing America’s Surface Transportation Act, Pub. L. No. 114-94, § 61,003, 129 

Stat. 1312, 1773-1779 (2015) (to be codified at 16 U.S.C. 824 et seq.) (FAST Act).
Docket Nos. RM16-15-000 and RM15-25-001 2

infrastructure information that is submitted to, or generated by, the Commission. The 

amended procedures will be referred to as the Critical Energy/Electric Infrastructure 

Information (CEII) procedures.

I. Background

A. Critical Energy Infrastructure Information Regulations

2. Shortly after September 11, 2001, the Commission took steps to protect 

information that it considered Critical Energy Infrastructure Information.

2

 As a 

preliminary step, the Commission removed documents from its public files and eLibrary

database that were likely to contain detailed specifications about critical infrastructure. 

The Commission directed the public to use the Freedom of Information Act (FOIA) 

request process to obtain such information.3

 Given that such information would typically 

be exempt from mandatory disclosure pursuant to FOIA, the Commission determined that 

it was important to have a process for individuals with a valid or legitimate need to access 

certain sensitive energy infrastructure information. Thus, in 2003, the Commission 

 2 See Statement of Policy on Treatment of Previously Public Documents, 97 FERC 

¶ 61,030 (2001). 

3 5 U.S.C. 552 as amended by the FOIA Improvement Act of 2016, Pub. L. No. 

114-185, 130 Stat. 538 (2016); 18 CFR 388.108 (Requests for Commission records not 

available through the Public Reference Room (FOIA Requests)).
Docket Nos. RM16-15-000 and RM15-25-001 3

issued a final rule establishing Critical Energy Infrastructure Information regulations.4

3. Each year, over 7,000 documents are submitted to the Commission’s eLibrary 

system as Critical Energy Infrastructure Information. The Commission also receives 

approximately 200 requests for Critical Energy Infrastructure Information each year. 

Requests for Critical Energy Infrastructure Information are submitted by, among others,

public utilities, gas pipelines, Liquefied Natural Gas (LNG) facilities, hydroelectric 

developers, academics, landowners, public interest groups, researchers, renewable energy 

organizations, consultants, and federal agencies. 

4. The Commission’s current Critical Energy Infrastructure Information process is 

designed to limit the distribution of sensitive infrastructure information to those 

individuals with a need to know in order to avoid having sensitive information fall into 

the hands of those who may use it to attack the Nation’s infrastructure. 

B. FAST Act

5. On December 4, 2015, the President signed the FAST Act into law. The FAST 

Act, inter alia, added section 215A to the Federal Power Act to improve the security and 

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

Commission to issue regulations aimed at securing and sharing sensitive infrastructure 

 4 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). 
Docket Nos. RM16-15-000 and RM15-25-001 4

information. Specifically, FPA section 215A(d)(2) (Designation and Sharing of Critical 

Electric Infrastructure Information) requires the Commission to “promulgate such 

regulations as necessary to”: 

(A) establish criteria and procedures to designate information 

as critical electric infrastructure information; 

(B) prohibit the unauthorized disclosure of critical electric

infrastructure information; 

(C) ensure there are appropriate sanctions in place for 

Commissioners, officers, employees, or agents of the 

Commission or the Department of Energy [DOE] who 

knowingly and willfully disclose critical electric

infrastructure information in a manner that is not authorized 

under this section; and 

(D) taking into account standards of the Electric Reliability 

Organization, facilitate voluntary sharing of critical electric

infrastructure information with, between, and by – (i) Federal, 

State, political subdivision, and tribal authorities; (ii) the 

Electric Reliability Organization; (iii) regional entities; 

(iv) information sharing and analysis centers established 

pursuant to Presidential Decision Directive 63; (v) owners, 

operators, and users of critical electric infrastructure in the 

United States; and (vi) other entities determined appropriate 

by the Commission.5

C. Notice of Proposed Rulemaking

6. 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

 5 FAST Act, Pub. L. No. 114-94, section 61,003, 129 Stat. 1312, 1776.
Docket Nos. RM16-15-000 and RM15-25-001 5

to the designation, protection and sharing of CEII.6 The proposed amendments included, 

among other things, the creation of criteria and procedures for designating information as 

CEII; a specific prohibition on unauthorized disclosure of that information; sanctions for 

knowing and willful wrongful disclosure of CEII by certain federal personnel; a process 

for voluntary sharing of CEII; and changes to the existing process for requesting CEII. 

In response to the NOPR, nineteen entities filed comments and two entities filed reply 

comments. The Appendix to this Final Rule lists the entities that submitted comments 

in response to the NOPR.

II. Discussion

7. The Commission adopts the majority of amendments proposed in the NOPR. The 

Commission determines that the amendments comply with the requirements of the FAST 

Act and better ensure the secure treatment of CEII. In addition, as discussed below, the 

Commission modifies or otherwise clarifies certain proposals made in the NOPR based 

on our review of the comments. In the discussion below, we address the following issues 

regarding the CEII amendments: (A) scope, purpose, and definitions; (B) criteria and 

procedures for determining what constitutes CEII; (C) duty to protect CEII; (D) sanctions 

 6 Regulations Implementing FAST Act Section 61003 – Critical Infrastructure 

Security and Amending Critical Energy Information, 81 FR 43,557 (July 5, 2016), 

155 FERC ¶ 61,278 (2016) (NOPR). 
Docket Nos. RM16-15-000 and RM15-25-001 6

for unauthorized disclosure of CEII; (E) voluntary sharing of CEII; and (F) requests for 

access to CEII. 

A. Scope, Purpose, and Definitions 

NOPR

8. In the NOPR, the Commission proposed to amend section 388.113 to include 

procedures for submitting, designating, handling, sharing and disseminating Critical 

Electric Infrastructure Information submitted to or generated by the Commission.7

 The 

Commission proposed to define the term “Critical Electric Infrastructure Information”8 to 

include “Critical Energy Infrastructure Information” as defined under the Commission’s 

 7 NOPR, 155 FERC ¶ 61,278 at P 10.

8 Id. P 11. Section 215A(a)(3) of the FAST Act defines Critical Electric 

Infrastructure Information to mean: 

[I]nformation related to critical electric infrastructure, or 

proposed critical electrical infrastructure, generated by or 

provided to the Commission or other Federal agency other 

than classified national security information, that is 

designated as critical electric infrastructure information by the 

Commission or the Secretary of the Department of Energy 

pursuant to subsection (d). Such term includes information 

that qualifies as critical energy infrastructure information 

under the Commission’s regulations. Critical Electric 

Infrastructure Information is exempt from mandatory 

disclosure under the Freedom of Information Act, 5 U.S.C. 

552, pursuant to section 215A(d)(1)(A) of the Federal Power 

Act.
Docket Nos. RM16-15-000 and RM15-25-001 7

current regulations and to refer to both types of information, collectively, as CEII.9 

The Commission also proposed to delete references to CEII in section 388.112 so that 

section 388.112 would only address privileged material and all procedures regarding 

CEII would be in section 388.113.

Comments 

9. APPA and MISO maintain that CEII should not include all Critical Energy 

Infrastructure Information.10 APPA contends that Congress intended for the Commission 

to develop a separate process for Critical Electric Infrastructure Information regarding the 

bulk-power system and that the amended regulations fall “short” of Congress’s intent 

under the FAST Act because the amended regulations include the voluntary disclosure 

provisions found in the Commission’s current regulations.

11 APPA also asserts that the 

proposed definition of “critical electric infrastructure” “does not comport well” with 

section 215A(d)(10) of the FPA, which provides DOE and the Commission with the 

authority to remove the CEII designation from information regarding the bulk-power 

system or distribution facilities.

12 MISO contends that the Commission misinterpreted 

 9 NOPR, 155 FERC ¶ 61,278 at P 13. 

10 See APPA Comments at 5-11; MISO Comments at 5.

11 APPA Comments at 5, 9, 13.

12 Section 215A(d)(10) of the FPA provides that when “the Commission or the 

[DOE] Secretary, as appropriate, determines that the unauthorized disclosure of such 

(continued...)
Docket Nos. RM16-15-000 and RM15-25-001 8

the definition of Critical Electric Infrastructure Information and that not all “Critical 

Energy Infrastructure Information under the Commission’s regulations is included” in the 

definition of Critical Electric Infrastructure Information.

13 

10. TAPS and APPA maintain that the Commission should revise the CEII definition 

to include additional language from the FAST Act. Specifically, TAPS and APPA

recommend that the proposed definition of CEII incorporate section 215A(d)(1)(B), 

which provides that CEII “shall not be made available by any Federal, State, political 

subdivision or tribal authority pursuant to any Federal, State, political subdivision or 

tribal law requiring public disclosure of information or records.”14 APPA requests that, 

if the Commission includes Critical Energy Infrastructure Information in CEII, then the 

Commission should interpret section 215A(d)(1)(B) to apply to all forms of CEII, 

including Critical Energy Infrastructure Information.

15 TAPS and APPA also request 

that the Commission define the term “political subdivision,” as used in section 

215A(d)(1)(B), to have the same meaning as the term “political subdivision” in section 

201(f) of the FPA, such that the term in section 215A(d)(1)(B) would include any agency, 

 

information could no longer be used to impair the security or reliability of the bulk-power 

system or distribution facilities” the designation shall be removed. 

13 MISO Comments at 4-6.

14 TAPS Comments at 8; APPA Comments at 21-22.

15 APPA Comments at 23. 
Docket Nos. RM16-15-000 and RM15-25-001 9

authority or instrumentality of any political subdivision or owned by a political 

subdivision.16 TAPS and APPA contend that, absent the clarification, these additional 

entities may not be considered a “political subdivision” under State laws.

17

11. TAPS recommends that the Commission delete from the definition of Critical 

Energy Infrastructure Information the requirement that such information be exempt from 

FOIA.18 TAPS contends that the existing exemption clause is unnecessary because any 

materials will be exempt from FOIA pursuant to section 215A(d)(1)(A).19 

 16 TAPS Comments at 8; APPA Comments at 22. Section 201(f) provides that: 

No provision in this subchapter shall apply to, or be deemed 

to include, the United States, a State or any political 

subdivision of a State, an electric cooperative that receives 

financing under the Rural Electrification Act of 1936 (7 

U.S.C. 901 et seq.) or that sells less than 4,000,000 megawatt 

hours of electricity per year, or any agency, authority, or 

instrumentality of any one or more of the foregoing, or any 

corporation which is wholly owned, directly or indirectly, by 

any one or more of the foregoing, or any officer, agent, or 

employee of any of the foregoing acting as such in the course 

of his official duty, unless such provision makes specific 

reference thereto.

16 U.S.C. 824(f)

17 TAPS Comments at 8-9; APPA Comments at 22-23.

18 TAPS Comments at 4-5. 

19 Id. at 4.
Docket Nos. RM16-15-000 and RM15-25-001 10

12. Other commenters seek clarification on the scope of the CEII definition. 

Specifically, the Trade Associations request that the Commission clarify whether the 

name or location of an electric system, asset, owner or operator could be protected under 

the proposed CEII definition.20 NRECA, similarly, urges the Commission to clarify that 

material considered Critical Energy Infrastructure Information, such as electric 

generation, and non-bulk electric system transmission and distribution facilities, would 

still qualify as CEII under the revised definition in the amended regulations.

21 

13. Powerex requests that the Commission specify whether the new definition of CEII 

expands the scope of information currently defined as Critical Energy Infrastructure 

Information.22 Powerex contends that the scope of this proceeding should remain limited 

to CEII regulations and procedures discussed in the NOPR and, thus, the scope of this 

proceeding should not extend to other forms of sensitive data.23 Powerex, further,

explains that there may be a tendency to over-designate information as CEII and, 

therefore, the Commission should recognize that transparency is needed to balance CEII 

 20 Trade Associations Comments at 16.

21 NRECA Comments at 7.

22 Powerex Comments at 11.

23 Id. at 15.
Docket Nos. RM16-15-000 and RM15-25-001 11

protection against the due process rights of parties participating in Commission 

proceedings.24

14. TAPS, APPA and the Trade Associations recommend revisions to the CEII NonDisclosure Agreements (NDA).25 Specifically, TAPS, APPA, and the Trade 

Associations state that the Commission should expressly incorporate the language from 

section 215A(d)(1)(B), exempting CEII from public disclosure, into the NDA.26 TAPS 

requests that the Commission eliminate the State Agency NDA. TAPS contends that

“[p]rior to the FAST Act’s express preemption of Sunshine Laws requiring disclosure,” 

the State Agency NDA was an attempt to impose a contractual nondisclosure requirement 

for critical energy infrastructure information provided to a State agency. TAPS maintains

that, once section 215A(d)(1)(B) is included in the general NDA, the State Agency NDA 

should be eliminated because it is now unnecessary.

27

15. With respect to the proposed edits to sections 388.112 and 388.113 to separate the 

Commission’s treatment of privileged material from the Commission’s treatment of CEII,

 24 Id. at 12.

25 APPA Comments at 23; TAPS Comments at 9-10; Trade Associations 

Comments at 32. 

26 See id.

27 TAPS Comments at 10; see also Critical Energy Infrastructure Information State 

Agency Employee Non-Disclosure Agreement, http://www.ferc.gov/legal/ceiifoia/ceii/state-agen-nda.pdf. 
Docket Nos. RM16-15-000 and RM15-25-001 12

MISO suggests that the title for section 388.112 be changed to “Submission and 

treatment of privileged information” and section 388.113 be changed to “Submission and 

treatment of Critical Electric Infrastructure Information (CEII).”28 

16. The Trade Associations request that the Commission expressly state in the

amended regulations that the CEII process is not intended to, and should not be 

interpreted to, supersede or otherwise affect existing laws, regulations, and agency rules 

that separately safeguard such data.29

Commission Determination 

17. As discussed below, the Commission, with limited modifications, adopts the 

amendments proposed in the NOPR addressing the scope, purpose and definitions in the 

CEII regulations. The Commission determines that the amendments are consistent with 

the requirements of the FAST Act and will result in more secure treatment of CEII. 

18. The Commission disagrees with APPA and MISO that the CEII definition should 

not include Critical Energy Infrastructure Information and that there should be separate 

processes for electric and non-electric CEII. Our determination is based on the plain 

language of the FAST Act. Section 215A(a)(3) defines Critical Electric Infrastructure 

Information to “include information that qualifies as critical energy infrastructure 

 28 MISO Comments at 3.

29 See Trade Associations Comments at 26.
Docket Nos. RM16-15-000 and RM15-25-001 13

information under the Commission’s regulations.”30 In subsuming the Commission’s 

existing Critical Energy Infrastructure Information within section 215A’s CEII definition, 

Congress expressly stated that the definition of CEII includes Critical Energy 

Infrastructure Information. There is no indication in the language of the FAST Act that 

Congress intended to limit the types of Critical Energy Infrastructure Information to only 

electric infrastructure information.31 

19. Including Critical Energy Infrastructure Information within the definition of CEII 

is not inconsistent with the provisions of section 215A(d)(10), as APPA maintains. First, 

section 215A(d)(10) states that removal of a CEII designation may be appropriate when 

the disclosure of such information “could no longer be used to impair the security or 

reliability of the bulk-power system or distribution facilities.” (Emphasis supplied.) 

Thus, it is clear that Congress did not intend for the new Critical Electric Infrastructure 

Information designation to apply only to the bulk-power system. Second, Critical Energy 

Infrastructure Information includes information that “relates details about the production, 

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

31 For the same reason, we reject MISO’s recommendation that the title for section 

388.112 should be changed to “Submission and treatment of privileged information” and 

that the title for section 388.113 should be changed to “Submission and treatment of 

Critical Energy Infrastructure Information (CEII).” MISO Comments at 3.
Docket Nos. RM16-15-000 and RM15-25-001 14

generation, transportation, transmission, or distribution of energy.”32 Such information, 

even if it concerns non-electric infrastructure, could be used to impair the security or 

reliability of the bulk-power system, for example by severing gas pipeline connections to 

electric generation facilities.

20. Moreover, the Commission determines that a single CEII process for Critical 

Energy/Electric Infrastructure Information is the most efficient way to fulfill the statutory 

mandate of the FAST Act and to avoid any confusion that could result from different

processes for different types of critical infrastructure information.33 Absent contrary 

language in the FAST Act, the Commission has discretion in how it administers statutory 

mandates by regulation.34 

21. APPA’s assertion that the Commission is “falling short” of meeting Congress’s 

intent is without merit. In the proposed regulations, the Commission complies with each 

provision in section 215A(d)(2) with regard to designating and handling Critical Electric 

Infrastructure Information. The fact that those rules also apply to Critical Energy 

Infrastructure Information does not diminish the Commission’s compliance under the 

 32 18 CFR 388.113(c)(1)(i)). 

33 NOPR, 155 FERC ¶ 61,278 at P 14.

34 See Anna Jacques Hosp. v. Burwell, 797 F.3d 1155, 1165 (D.C. Cir. 2015) 

(holding that “interstitial question[s] of implementation” are left to the discretion of the 

implementing agency).
Docket Nos. RM16-15-000 and RM15-25-001 15

FAST Act. Rather, in this regard, the Commission’s determination meets Congress’s 

intent. Moreover, APPA’s argument that “information related to cyber threats and 

defensive measures should not be ‘protected’ under a designation regime that also 

provides for potentially involuntary access by any federal employee . . ., landowners 

[or]any person who is a participant in a Commission proceeding . . .” and others has no 

basis in the text of the FAST Act. APPA notably cites to nothing in the FAST Act to 

support that argument.35 On the contrary, Congress explicitly directed the Commission 

to include voluntary sharing in the regulations that the Commission is required to 

promulgate under the FAST Act.36 Further, the implication of APPA’s argument – that 

cyber information is different from other types of infrastructure information and therefore 

warrants different rules – fails to take into consideration that the Commission will 

evaluate each request for CEII, and each decision to voluntarily share CEII, on a case-bycase basis. For example, a person seeking cyber threat information would have to show a 

different need for the information than a person seeking information for a pipeline facility 

for a certificate proceeding. 

 35 See APPA Comments at 15.

36 Section 215A(d)(2)(D) states that the Commission “shall promulgate such 

regulations as necessary to ... facilitate voluntary sharing of critical electric infrastructure 

information...” FAST Act, Pub. L. No. 114-94, section 61,003, 129 Stat. 1312, 1776.
Docket Nos. RM16-15-000 and RM15-25-001 16

22. The Commission agrees with TAPS and APPA that the Commission’s regulations 

should incorporate the provision in section 215A(d)(1)(B) that CEII “shall not be made 

available by any Federal, State, political subdivision or tribal authority pursuant to any 

Federal, State, political subdivision or tribal law requiring public disclosure of 

information or records.”37 As to TAPS’s and APPA’s request that the Commission 

define the term “political subdivision,” in section 215A(d)(1)(B) of the FAST Act to be 

consistent with the definition of that term in FPA section 201(f), Congress did not adopt 

the definition of “political subdivision” in section 201(f) for the purposes of the FAST 

Act. However, the Commission believes that the broad language of section 

215A(d)(1)(B), as it applies to “any Federal, State, political subdivision or tribal 

authority,” should encompass the instrumentalities and components of States. 

Section 215A(d)(1)(B) was included to protect CEII from mandatory disclosure. It 

 37 APPA states that there may be instances where an entity could provide CEII to 

NERC who, in turn, may submit that entity’s information to the Commission or DOE as 

CEII without notifying the entity. Thus, APPA is concerned the entity may not be aware 

that the information has been submitted to the Commission and designated as CEII. As 

a result, APPA suggests that the Commission establish notification procedures so that 

entities are aware that their information was designated as CEII. APPA Comments 

at 21-22. We see no need to adopt such a notification process. Section 1505 of NERC’s 

Rules of Procedure already requires NERC, unless otherwise directed by the Commission

or its staff, to notify submitting entities of requests made by the Commission to NERC 

for the submitting entities’ information. 
Docket Nos. RM16-15-000 and RM15-25-001 17

would be illogical to provide such protection to States, but not their instrumentalities and 

components. 

23. The Commission disagrees with TAPS that the Commission should delete from 

the definition of Critical Energy Infrastructure Information the provision that states that 

Critical Energy Infrastructure Information “[i]s exempt from mandatory disclosure under 

the Freedom of Information Act, 5 U.S.C. 552.”38 As we have discussed above, 

Congress incorporated Critical Energy Infrastructure Information within section 215A’s 

definition of Critical Electric Infrastructure Information without revision.39 Accordingly, 

the Commission will retain its current definition of Critical Energy Infrastructure 

Information. 

24. In response to the Trade Associations’ comments seeking clarification if a name 

or location of a facility should be protected as CEII, the Commission’s current practice is 

that information that “simply give[s] the general location of the critical infrastructure” or 

simply provides the name of the facility is not CEII.40 However, under certain 

circumstances, information regarding the location of infrastructure or its name that is not 

 38 18 CFR 388.113(c)(2)(iii).

39 See Stone v. INS, 514 U.S. 386, 397 (1995) (holding that “[w]hen Congress acts 

to amend a statute, we presume it intends its amendment to have real and substantial 

effect”).

40 18 CFR 388.113(c)(1)(iv).
Docket Nos. RM16-15-000 and RM15-25-001 18

already publicly known could be CEII.41 Therefore, we clarify that, while as a general 

matter the location or name of infrastructure is not CEII, a submitter of information to 

the Commission may ask that non-public information about the location, or the name, 

of critical infrastructure be treated as CEII. The submitter would have to provide a 

justification for the request and explain why the information is not already publicly 

known. 

25. In response to NRECA’s request that the Commission clarify that material treated 

as Critical Energy Infrastructure Information under the Commission’s current regulations 

would, in most circumstances, be treated as CEII under the amended regulations, we note 

that such information should continue to qualify as CEII. We also note, however, in 

response to Powerex’s comment, that it is conceivable that Critical Electric Infrastructure 

Information may include information that would not fall within the existing definition of

Critical Energy Infrastructure Information.42 

26. We agree with Powerex’s comment that the Final Rule should only address CEII 

and not other types of information. In response to Powerex’s concerns about a party’s 

 41 For example, the location of an operating transformer is likely publicly known. 

However, the location of a spare transformer housed in a central location may not be 

publicly known and, therefore, may qualify as CEII.

42 For example, while Critical Energy Infrastructure Information must satisfy the 

four-part definition in amended section 388.113(c)(1), Critical Electric Infrastructure 

Information must meet the definition in amended section 388.113(c)(2). 
Docket Nos. RM16-15-000 and RM15-25-001 19

due process rights, under the amended CEII regulations the Commission will balance 

the need to protect critical information with the potential need of parties participating in 

Commission proceedings to access CEII. For example, the Commission’s regulations 

include a process for parties to access information directly from other parties in a 

Commission proceeding.43 

27. In response to comments from TAPS, APPA, and the Trade Associations, 

the Commission agrees that the CEII NDA should reference the provision in 

section 215A(d)(1) that CEII is exempt from disclosure under any Federal, State, political 

subdivision or tribal law requiring public disclosure. We disagree that the State Agency

NDA should be eliminated because it reinforces the minimum protections applicable to 

CEII that the Commission may provide to states as well as provides for additional 

protections beyond the exemptions in State public disclosure laws.44

28. Finally, the Commission declines to adopt the revision suggested by the Trade 

Associations to expressly state that the CEII regulations are not intended to supersede 

other laws, regulations, and agency rules that separately safeguard such data.45 This 

Final Rule and adopted CEII amendments do not purport to supersede any other legal 

 43 See 18 CFR 388.112(b)(2) and 388.113(g)(4).

44 See supra note 27. 

45 See Trade Associations Comments at 26.
Docket Nos. RM16-15-000 and RM15-25-001 20

authorities other than the regulations and associated materials specifically amended in 

this Final Rule. 

B. Criteria and Procedures for Determining What Constitutes CEII 

1. General Criteria and Procedures 

NOPR

29. Section 215A(d)(2)(A) requires the Commission to “establish criteria and 

procedures to designate information as critical electric infrastructure information.” In the 

NOPR, the Commission proposed criteria and procedures for the handling of CEII

consistent with section 215A(d)(2)(A).

46

Comments 

30. Commenters request that the Commission provide more detail on what qualifies as

CEII.47 The Public Interest Organizations, for example, ask the Commission to publish 

guidelines and criteria for designating information as CEII.48 The Public Interest 

Organizations further recommend that the Commission publish “data tables that provide 

suggested classifications for common data types.”49 HRC asks that the Commission 

 46 NOPR, 155 FERC ¶ 61,278 at P 16.

47 Peak Comments at 8-10; Powerex Comments at 12; APS Comments at 5; APPA 

Comments at 17; WIRAB Comments at 5. 

48 Public Interest Organizations Comments at 4.

49 Id. at 5.
Docket Nos. RM16-15-000 and RM15-25-001 21

require entities filing CEII to include a public cover letter providing a description of the 

facility the information relates to and describing the nature of the submission. HRC also 

contends that information submitted as CEII should include a more detailed description in 

eLibrary.50 HRC contends that this information will better allow the public to understand 

the basis for the CEII classification.

51 HRC also requests that the Commission develop a 

procedure whereby the public can request that the Commission review information at the 

time of submission to ensure that it was properly submitted as CEII.52 HRC contends 

that filing a CEII or FOIA request as a means of triggering the review of CEII 

classification is burdensome.53

31. WIRAB and APS commented that additional designation guidance is needed in 

order to avoid submitters’ over-designation of documents as CEII. Specifically, WIRAB 

and APS recommend that the Commission establish separate criteria for determining 

when information qualifies as CEII on the basis of national security, economic security or 

public health or safety.54 

 50 HRC Comments at 2-3.

51 Id. at 2.

52 Id. at 3. 

53 Id. 

54 WIRAB Comments at 5; APS Comments at 5. 
Docket Nos. RM16-15-000 and RM15-25-001 22

32. The Trade Associations maintain that the Commission’s regulations should 

explicitly designate as CEII information “related to compliance with the Reliability 

Standards as critical electric infrastructure information and exempt it from disclosure 

under 388.113(f).”55 The Trade Associations assert that a blanket presumption that 

information regarding Reliability Standards compliance is CEII is necessary because it 

“may ... be difficult for a submitter to present, ex ante, a clear justification for meeting 

the critical electric infrastructure information definition for a particular system or asset, 

especially if the potential for negative effect could also arise from the disclosure of a 

combination of sets of information that alone may not meet the CEII definition.”56 

33. APPA and the Trade Associations raise concerns about how the designation 

criteria will apply to DOE.57 Specifically, they assert that the Commission failed to 

provide criteria and procedures that would apply to DOE.58 Additionally, Peak, Public 

Interest Organizations, and APPA request that the Commission hold a technical 

 55 Trade Associations Comments at 12.

56 Id. at 11.

57 APPA Comments at 24-25; Trade Associations Comments at 23. 

58 Id. 
Docket Nos. RM16-15-000 and RM15-25-001 23

conference on the implementation of the new CEII rules as part of the “consultation with 

the Secretary” required by FPA section 215A(d)(2).59 

34. Finally, NRC requests that the Commission establish a generic CEII designation 

that other federal agencies can use to designate information.60 NRC also recommends 

that the Commission clarify in the Final Rule that other federal agencies “are to establish 

their own procedures for identifying CEII on an information-specific basis utilizing the 

FERC’s generic CEII standard.”61 

Commission Determination 

35. The Commission is not persuaded that more detailed guidance or additional 

designation criteria in the CEII regulations are necessary. FPA section 215A(a)(2) 

defines Critical Electric Infrastructure as “a system or asset of the bulk-power system, 

whether physical or virtual, the incapacity or destruction of which would negatively 

affect national security, economic security, public health or safety, or any combination 

of such matters.” FPA section 215A(a)(3) includes Critical Energy Infrastructure 

Information within CEII. We believe that the regulations, as proposed, provide adequate 

 59 Peak Comments at 6-7; Public Interest Organizations Comments at 5; APPA 

Comments at 25. WIRAB also requests a technical conference to discuss implementation 

of the FAST Act. WIRAB Comments at 11.

60 NRC Comments at 1-2.

61 Id. at 2.
Docket Nos. RM16-15-000 and RM15-25-001 24

guidance for a submitter or Commission staff to determine whether information is CEII 

and for the CEII Coordinator to make a determination. In addition, the criteria and 

designation procedures adopted herein are informed by the Commission’s experience 

of implementing and administering the Critical Energy Infrastructure Information 

regulations over the past fifteen years. 

36. The Commission does not agree that the scope of CEII should be modified, as 

suggested by the Trade Associations, to encompass information “related to compliance 

with the Reliability Standards.” The Trade Associations’ proposal is unduly broad and 

inconsistent with the FAST Act because it could lead to all infrastructure information, 

whether critical or not, being treated as CEII. For the same reason, we do not agree that 

the blanket presumption that information relating to compliance with Reliability 

Standards is CEII, proposed by the Trade Associations, is appropriate. Like other forms 

of CEII, however, information on compliance with Reliability Standards may be treated 

as CEII if the submitter justifies its treatment as CEII under the Commission’s 

regulations. 
Docket Nos. RM16-15-000 and RM15-25-001 25

37. In response to HRC’s comments that documents listed as CEII could be better 

described in eLibrary, the level of detail needed for a document description in eLibrary is 

better addressed in our submission guidelines rather than in our regulations.62 

38. In response to HRC’s request for an additional process to obtain a ruling on CEII 

when it is filed, we believe that such a process is unnecessary, as entities seeking access 

to information filed as CEII may submit a FOIA or CEII request at any time, including 

promptly after that information is filed with the Commission. We further conclude that 

the proposed procedures are adequate for the Commission to process information 

submitted to the Commission, or generated by the Commission, as CEII.63 As previously 

noted, the Commission receives over 7,000 CEII submissions a year; reviewing the 

information at the time of submission, in the absence of a specific request for that 

information, would be overly burdensome on the Commission’s resources. In response 

to a CEII request, the CEII Coordinator will review the information to determine whether 

to designate it as CEII. Further, proposed section 388.113(d)(1)(iv) specifically states 

that the Commission retains the right to make determinations with regard to any claim of 

CEII status, at any time. 

 62 See CEII Filing Guide, https://www.ferc.gov/resources/guides/filing-guide/fileceii/ceii-guidelines.asp. The Commission will update the CEII Filing Guide when the 

proposed regulations become effective.

63 See amended sections 388.113(c) and (d).
Docket Nos. RM16-15-000 and RM15-25-001 26

39. In response to the comments from APPA and the Trade Associations, the 

Commission declines to revise the regulations to identify specific designation criteria and 

CEII procedures for DOE. 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.64 The FAST Act, however, does not 

compel DOE to make any changes to its regulations in this regard, and as noted in the 

NOPR, nothing within the Commission’s regulations would limit DOE’s ability to 

designate CEII in accordance with the FAST Act.65 Furthermore, we do not believe a 

technical conference is necessary to satisfy the requirement for consultation with DOE in 

the FAST Act. 

40. Although the Commission recognizes that other agencies have an obligation to 

protect certain information in their custody, the FAST Act does not grant other federal 

agencies the authority to designate information as CEII. Critical Electric Infrastructure 

Information is specifically defined as information “designated as critical electric 

infrastructure information by the Commission or the Secretary of the Department of 

Energy pursuant to subsection (d).”66 Congress’s intent to limit the designation authority 

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

65 NOPR, 155 FERC ¶ 61,278 at P 16 n.12.

66 FAST Act, Pub. L. No. 114-94, section 61,003, 129 Stat. 1312, 1776.
Docket Nos. RM16-15-000 and RM15-25-001 27

to the Commission and DOE is reinforced by the fact that only the staff of the 

Commission and DOE are subject to sanctions for unauthorized release under 

section 215A(d)(2)(C).

67 However, because NRC has raised valid concerns about the 

protection of sensitive information of the electric grid in its custody, the Commission 

will make the following change to the amended scope of section 388.113: 

Nothing in this section limits the ability of any other Federal 

agency to take all necessary steps to protect information 

within its custody or control that is necessary to ensure the 

safety and security of the electric grid. To the extent 

necessary, such agency may consult with the CEII 

Coordinator regarding the treatment or designation of such 

information. 

41. By this change, the Commission does not limit the discretion of other federal 

agencies to protect sensitive information in their custody but provides a mechanism for 

agencies to consult with the Commission’s CEII Coordinator regarding the treatment or 

designation of such information as CEII.

68 We believe this change strikes a reasonable 

balance by recognizing other federal agencies’ discretion to protect their information, 

while adhering to the statutory framework that limits CEII designation authority to the 

Commission and DOE.

 67 Id.

68 For example, the Commission could establish the parameters of the

Commission’s role with regard to CEII with another federal agency through a 

Memorandum of Understanding with that agency. 
Docket Nos. RM16-15-000 and RM15-25-001 28

2. Designation of Submissions to the Commission 

NOPR

42. The Commission proposed to treat information submitted with a justification for

CEII treatment as CEII, unless the submitter is otherwise notified by the Commission.69 

Comments

43. APS asks that the Commission “deem” information as CEII at the time an entity 

submits the information to the Commission.70 HRC and Tacoma Power are concerned 

that “treating” a submission as CEII is not a designation and, as a result, submitting 

entities may not be able to assert the FOIA exemption when faced with a records request 

unless and until the Commission makes a CEII designation determination.71 Tacoma 

Power further requests that the Commission develop a process for state entities to receive 

a CEII designation determination so that state entities may assert any FOIA exemption

with certainty.

72 

44. INGAA, NERC, and the Trade Associations request that the Commission change 

the comment period afforded to submitters of CEII to respond to a request for CEII from 

 69 NOPR, 155 FERC ¶ 61,278 at P 19.

70 APS Comments at 6.

71 HRC Comments at 2; Tacoma Power Comments at 4.

72 Tacoma Power Comments at 4.
Docket Nos. RM16-15-000 and RM15-25-001 29

five calendar days to five business days, ten working days, or at least 30 calendar days, 

respectively.73 APS and CEA comment that if the Commission determines that particular 

information is not CEII, the Commission should provide the submitter with an 

explanation of why the information does not meet the criteria for designation as CEII.74 

The Trade Associations also request that the Commission provide a more detailed 

explanation in instances when CEII is released over an objection from the submitter of 

the material.75

45. MISO, Trade Associations, CEA, and HRC submitted comments recommending 

changes to the Commission’s processing and evaluation of justification statements that 

must accompany a submitter’s request for CEII treatment. MISO is concerned that the 

Commission may automatically make information public if the submission fails to meet 

the Commission’s regulations. Thus, MISO recommends that amended section 

388.113(d)(1) be revised to make clear that failure to provide the justification or other 

required information will be considered in the determination of whether the information 

 73 INGAA Comments at 4; NERC Comments at 15; Trade Associations 

Comments at 19.

74 APS Comments at 6; CEA Comments at 6-7. 

75 Trade Associations Comments at 19-20. 
Docket Nos. RM16-15-000 and RM15-25-001 30

will be maintained as CEII by the Commission, but it will not result in automatic 

disclosure of the information.

76 

46. The Trade Associations maintain information submitted to the Commission for 

designation as CEII that ultimately is determined not to be CEII should not automatically 

be disclosed to the public because such information may be subject to other laws and 

regulations restricting disclosure of the information.77 

47. CEA recommends that the Commission provide the submitter with an opportunity 

to retract a submission and re-submit it with the appropriate justification.78 

Commission Determination 

48. As an initial matter, we correct the statement in the NOPR erroneously stating

that under our current practice, “the Commission deems the designation on a submission 

accepted as submitted.”79 Our current practice is to treat information as CEII, and 

maintain it in our non-public files, when it is submitted with a request for CEII treatment. 

That practice is reflected in the current and proposed regulations.80 Under the regulations 

 76 MISO Comments at 7. 

77 Trade Associations Comments at 25-26.

78 CEA Comments at 6-7.

79 NOPR, 155 FERC ¶ 61,278 at P 19.

80 See amended section 388.113(d)(1)(vi). 
Docket Nos. RM16-15-000 and RM15-25-001 31

adopted in this Final Rule information that is submitted will not be designated CEII until 

the CEII Coordinator makes such a determination. 

49. As to the comments submitted by Tacoma Power, the Commission is not 

persuaded that a special expedited process for designations in the event a State entity is 

facing a public records request is needed, because State and local entities may consult 

with the CEII Coordinator as to whether information that is subject to a State, local, or 

other type of records request is CEII under the Commission’s regulations.81 

50. In response to the comments from APS and CEA about the procedures for 

informing a submitter of a potential release or re-designation of CEII, the Commission’s

current practices are sufficient to comply with the FAST Act and we maintain those

practices under the adopted regulations. The current practice is to provide notice to the 

submitter if a proposed CEII designation will be rejected or if CEII will be released over 

an objection. The notification will include an explanation as to why the information does 

not meet the criteria and the submitter will have an opportunity to comment or seek 

appropriate relief under amended section 388.113(e)(4). 

 81 Section 215A(d)(1)(B) states that Critical Electric Infrastructure Information 

“shall not be made available by any Federal, State, political subdivision or tribal authority 

pursuant to any Federal, State, political subdivision or tribal law requiring public 

disclosure of information or records.” FAST Act, Pub. L. No. 114-94, section 61,003, 

129 Stat. 1312, 1776. 
Docket Nos. RM16-15-000 and RM15-25-001 32

51. The Commission is not persuaded that it is necessary to make the changes 

proposed by MISO and CEA regarding treatment of information that is filed in a manner 

that does not meet our regulations. The amended regulations do not mandate automatic 

disclosure of the information. Furthermore, even if the Commission were to make 

information public, the Commission will provide notice to the submitter prior to any 

determination.

82 

52. The Commission adopts INGAA’s proposal to change the comment period from 

five calendar days to five business days, and will change all references in section 388.113 

from “calendar” days to “business” days. Allowing more time is not warranted because 

the issue of whether to release CEII is relatively limited and, as a general matter, the 

Commission endeavors to respond to requests for CEII as soon as possible. In addition, 

the Commission notes that submitters can request an extension of that time-period to 

submit comments to the Commission. 

3. Information Included in NERC Databases

NOPR

53. The Commission proposed that information downloaded by Commission staff 

from private databases that are accessed pursuant to Commission order or regulation will 

be maintained as non-public information consistent with the Commission’s internal 

 82 See amended sections 388.113(d)(1)(iv) and 388.113(e)(3)-(4).
Docket Nos. RM16-15-000 and RM15-25-001 33

controls.83 The Commission noted that in response to an information request, it will 

evaluate whether the information is CEII, proprietary information, or otherwise 

privileged or non-public and will provide the owner of the database or information (as 

appropriate) with an opportunity to comment on the request.

84 

Comments

54. Most commenters support treating data downloaded from the NERC databases as 

non-public. NERC agrees with the proposal to treat information downloaded from its 

databases as non-public, but it seeks clarification as to whether the Commission intends 

to designate the information as privileged and CEII.85 TAPS requests that if the 

Commission determines to release database information, the manager of the database and 

the entity whose data would be released should receive notice and an opportunity to 

comment.

86 

55. The Trade Associations recommend that the Commission treat the NERC 

databases information that Commission staff does not download as inextricably 

 83 NOPR, 155 FERC ¶ 61,278 at P 17 n.13(citing Availability of Certain North 

American Electric Reliability Corporation Databases to the Commission, Order No. 824, 

155 FERC ¶ 61,275 (2016)).

84 Id.

85 NERC Comments at 19.

86 TAPS Comments at 5-7.
Docket Nos. RM16-15-000 and RM15-25-001 34

intertwined with downloaded information and thereby treat all of the information on each

database as CEII.

87 TAPS raises concerns that information that is contained in a database

may not be adequately protected from disclosure, because the data “is not being 

submitted to the Commission, but rather accessed by the Commission.”88 

CEA requests that the Commission respect Canadian information that may be accessed 

through any private databases accessible to the Commission.

89 CEA further comments 

that the Commission’s information gathering through other databases be restricted to U.S. 

facility information only.90

Commission Determination

56. The Commission adopts the NOPR proposal to treat information downloaded from 

NERC databases as non-public91 and to evaluate whether it should be designated as CEII 

in response to a request for the information or if the Commission determines such 

 87 Trade Associations Comments at 15.

88 TAPS Comments at 6. 

89 CEA Comments at 4.

90 Id.

91 This is consistent with the statement in Order No. 824 that the Commission 

“will take appropriate steps, as provided for in our governing statutes and regulations, in 

handling such information.” Order No. 824, 152 FERC ¶ 61,208 at P 22.
Docket Nos. RM16-15-000 and RM15-25-001 35

information should be disclosed.

92 In addition, because the CEII designation only applies 

to information that is submitted to or generated by the Commission, information that 

Commission staff accesses and reviews, but never takes custody of, cannot be designated 

as CEII. Therefore, the Commission disagrees with the proposal to treat all of the 

information in an accessed database as inextricably intertwined CEII.

93 

57. The Commission clarifies that information downloaded by the Commission or its 

staff from a non-public NERC database will be treated as non-public information and will 

be afforded the same treatment as CEII. Thus, in the event the Commission receives a 

request for the information or the Commission determines such information should be 

disclosed, the Commission will “provide the owner of the database or information (as 

appropriate) with an opportunity to comment on the request.”94 In response to TAPS’s

comments, we clarify that, where practicable, we will notify the database owner and the 

information owner.95 

 92 The discussion above and our determination address the Trade Associations’ 

request for clarification of Order No. 824 in Docket No. RM15-25-001. 

93 By the same token, information that is not downloaded cannot be disclosed 

under a FOIA request as the Commission would not possess the information.

94 NOPR, 155 FERC ¶ 61,278 at P 17 n.13.

95 We note that section 1505 of NERC’s Rules of Procedure requires NERC, 

unless otherwise directed by the Commission or its staff, to provide notice to submitting 

entities in response to requests for the submitting entities’ information by the 

Commission.
Docket Nos. RM16-15-000 and RM15-25-001 36

58. Finally, as to CEA’s comment regarding Canadian information on other databases, 

we believe that CEA’s request goes beyond the scope of this rulemaking proceeding, 

which is limited to amending the Commission’s regulations regarding CEII.

96 

4. Designation of Commission-Generated Information

NOPR

59. For Commission-generated information, the NOPR explained that the CEII 

Coordinator, after consultation with the appropriate Commission Office Director, will 

determine whether the information meets the definition of CEII.97 The CEII Coordinator 

will then determine how long the CEII designation should last and, as appropriate, 

whether to make any re-designation.98 

Comments 

60. The Trade Associations request that the Commission establish a process in which 

appropriate stakeholders may participate in the Commission’s CEII designation 

 96 The Commission has addressed the scope of information covered by specific 

data collection requirements in individual proceedings. For example, in Order No. 824, 

concerning Commission access to certain NERC databases that include data about both 

U.S. and Canadian facilities, the Commission revised its regulations to indicate that 

“Commission access will be limited to data regarding U.S. facilities.” Order No. 824, 

155 FERC ¶ 61,275 at P 38.

97 NOPR, 155 FERC ¶ 61,278 at P 21. 

98 Id.
Docket Nos. RM16-15-000 and RM15-25-001 37

determinations for Commission-generated information.99 The Trade Associations assert 

that whether the information is submitted to the Commission or not, “owners and 

operators of that critical infrastructure who will be faced with defending such a potential 

attack deserve to have input into the determination of whether or not such information 

should be disclosed.”100 

Commission Determination

61. The Commission determines that there is no need for stakeholder participation 

in the designation of Commission-generated information. The Commission has the 

expertise and experience to make determinations about whether Commission-generated

information is CEII. And as a practical matter, it would not be appropriate in some

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

qualifies as CEII. For example, Commission-generated CEII may contain information 

that is otherwise non-public or privileged. To the extent that an entity believes that a 

Commission-generated document contains CEII about its facility, the entity is not 

precluded from raising that concern with the CEII Coordinator.

 99 Trade Associations Comments at 24.

100 Id.
Docket Nos. RM16-15-000 and RM15-25-001 38

5. Segregable Information

NOPR

62. The NOPR recognized that information submitted to the Commission may contain 

parts that are CEII and parts that may not be CEII. As a result, the NOPR proposed to 

require entities submitting CEII and Commission staff who generate CEII, to the extent 

feasible, to segregate the CEII (or information that reasonably could be expected to lead 

to the disclosure of the CEII) from non-CEII at the time of submission or staff’s 

generation, respectively.

101

Comments

63. HRC and Powerex support the requirement to segregate CEII from non-CEII and

encourage efforts to prevent the over-classification of information.

102 TAPS asks the 

Commission to confirm that submitting a redacted public version of a filing satisfies the 

requirement to segregate CEII.103 Powerex asks the Commission to clarify that derivative 

analyses performed by governmental entities or their contractors that use or rely on CEII, 

 101 NOPR, 155 FERC ¶ 61,278 at P 22.

102 HRC Comments at 3; Powerex Comments at 16-17.

103 TAPS Comments at 14.
Docket Nos. RM16-15-000 and RM15-25-001 39

without more detail, should not be designated as CEII solely based on the fact the 

analysis relies on or uses CEII.104 

Commission Determination

64. The Commission clarifies that submitting a properly redacted public version of

information submitted as CEII meets the requirement established in section 215A(d)(8). 

Moreover, derivative analyses that use or rely on CEII, without actually containing or 

disclosing CEII, do not automatically qualify as CEII unless the information provided 

could reasonably be expected to lead to the disclosure of CEII.

6. Duration of Designation 

NOPR

65. Section 215A(d)(9) provides that information “may not be designated as critical 

electric infrastructure information for longer than 5 years, unless specifically redesignated by the Commission or the Secretary, as appropriate.”105 The NOPR stated 

that the five-year designation period will commence upon submission, and the expiration 

of the five-year period will not automatically trigger the public release of the information

unless the Commission determines it is appropriate to do so.

106 The NOPR also stated 

 104 Powerex Comments at 16.

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

106 NOPR, 155 FERC ¶ 61,278 at P 18 n.14 and P 24.
Docket Nos. RM16-15-000 and RM15-25-001 40

that the Commission will make a re-designation determination when an entity requests 

the information; when staff determines a need to remove the designation; or when a 

submitter requests that the information no longer be treated as CEII.107 Consistent with 

current practice, the NOPR proposed that a NDA will require protection of CEII past the 

expiration of the CEII designation marked on the information and that the recipient of 

CEII from the Commission must receive prior authorization from the Commission before 

making any disclosure.

108 

66. In the NOPR, the Commission proposed removing the CEII designation when the 

information no longer could impair the security or reliability of not only the bulk-power 

system or distribution facilities but also other forms of energy infrastructure.109 The 

Commission stated that the Commission would provide notice to the submitter “in the 

instance where the Commission takes the affirmative step to rescind the designation.”110 

 107 Id.

108 Id. P 26.

109 Id. P 27.

110 Id. 
Docket Nos. RM16-15-000 and RM15-25-001 41

Comments

67. Several commenters support the proposal to maintain information as non-public 

after CEII designations marked on the information expire.111 However, Peak requests 

that the Commission determine at the time of the designation whether the data will lose 

its protection after the five-year term ends and recommends creating designation 

categories that include designation timeframes.112 The Trade Associations and APPA ask 

the Commission to automatically re-designate information, absent objection.113 Tallgrass 

requests that a designation remain for the life of a pipeline facility.114 INGAA requests 

that the Commission never un-designate CEII related to pipeline facilities on its own 

initiative or unilaterally as long as the facility is in operation.

115

68. APS requests clarification on whether the criteria for re-designating CEII are the 

same as the criteria used for the initial CEII designation.116 

 111 See, e.g., ITC Comments at 2-3; INGAA Comments at 3; NRECA Comments 

at 9.

112 Peak Comments at 10-11 (recommending categories such as “transmission and 

generation outage data, generator-specific forecast data, transmission facility and load 

status and measurements, specific facility modeling data, and device lists”). 

113 Trade Associations Comments at 21-22; APPA Comments at 20.

114 Tallgrass Comments at 3.

115 INGAA Comments at 3.

116 APS Comments at 12. 
Docket Nos. RM16-15-000 and RM15-25-001 42

69. NRECA and ITC assert that the NOPR is unclear with respect to the notice and 

comment provisions pertaining to a determination to remove CEII designations. In 

particular, they urge the Commission to clarify that submitters will receive notice, an 

opportunity to comment, and appeals rights prior to any determination to remove a CEII 

designation and prior to any disclosure of the information.117 ITC also states that the 

NOPR proposal to “notify the person who submitted the document and give the person an 

opportunity (at least five calendar days) in which to comment in writing prior to the 

removal of the designation” is insufficient notice. ITC asks the Commission to provide 

notice and an opportunity to comment not only to the “person who submitted the 

document” but also to the organization on whose behalf the person submitted the 

document.

118 

70. APPA requests that the Commission revise the language in amended 

section 388.113(e) to ensure that designations made by DOE cannot be removed by the 

Commission.119

 117 NRECA Comments at 11; ITC Comments at 3-4. 

118 ITC Comments at 3.

119 APPA Comments at 26. 
Docket Nos. RM16-15-000 and RM15-25-001 43

Commission Determination

71. The Commission adopts the NOPR proposal to treat expired CEII as non-public 

until a re-designation determination is made. Such a process is supported by the majority 

of commenters and is reasonable given the large volume of CEII presently in the 

Commission’s files and anticipated to be filed. Consistent with the NOPR’s intent, the 

Commission will modify the regulatory language in amended section 388.113(e) to 

indicate that the Commission will treat information as non-public after the CEII 

designation has lapsed; that no information will be released as non-CEII unless the 

Commission decides to release the information; and that notice and opportunity for 

comment will be provided to the submitter prior to any determination that the CEII

designation of a submitted document should be removed. 

72. We do not adopt the recommendations to automatically re-designate information, 

designate by category, or designate for the lifetime of a facility. Blanket designations are

inconsistent with FPA section 215A(d)(9), which requires the Commission to specifically 

re-designate information.120 

 120 Section 215A(d)(9) states that information “may not be designated as critical 

electric infrastructure information for longer than 5 years, unless specifically redesignated by the Commission or the Secretary, as appropriate.” FAST Act, Pub. L. 

No. 114-94, section 61,003, 129 Stat. 1312, 1776.
Docket Nos. RM16-15-000 and RM15-25-001 44

73. In response to ITC’s comments that providing notice to the person who submitted 

the document is insufficient, we clarify that the Commission will provide the person 

and/or the organization identified on the submission notice an opportunity to comment as 

well as appeal rights prior to any determination to rescind a CEII designation or release 

the information.121 

74. With respect to APPA’s comments regarding the Commission’s ability to remove 

a DOE designation, we clarify that the Commission does not intend to remove any 

designations that DOE may make. With respect to APS’s request for clarification

regarding re-designations, we clarify that the regulations adopted herein do not 

differentiate between the processes for designating or re-designating information as CEII. 

7. Judicial Review of Designation 

NOPR

75. The Commission proposed to require a person seeking to challenge a Commission 

designation determination to file an administrative appeal with the Commission’s General 

Counsel prior to seeking judicial review in federal district court under section 

215A(d)(11).

122 

 121 The Commission will use the relevant service list, where appropriate, to 

determine the appropriate recipient. 

122 NOPR, 155 FERC ¶ 61,278 at P 28.
Docket Nos. RM16-15-000 and RM15-25-001 45

Comments 

76. HRC contends that the Commission’s administrative appeal requirement should 

not be mandatory.123 NRECA asserts that the Commission does not have a legal basis for 

the administrative appeal requirement.124 NRECA also recommends that the regulations 

specify the timeframes in which appeals can be pursued; a timeframe for when a decision 

on the appeal should be rendered; and that the designation will remain in place until legal 

challenges have been exhausted.125

77. NRECA contends that the Commission must revise the delegation authority 

provisions in section 375.313 to allow the General Counsel to hear and decide an 

administrative appeal.126

Commission Determination

78. With respect to NRECA and HRC’s comment, Congress directed the Commission 

to establish criteria and procedures to designate information as CEII, and the mandatory 

appeal to the Commission’s General Counsel is a procedure that will assist in proper 

designation of such information. Requiring a party to exhaust administrative remedies 

 123 HRC Comments at 3. 

124 NRECA Comments at 11; HRC Comments at 3-4. 

125 Id.

126 NRECA Comments at 12.
Docket Nos. RM16-15-000 and RM15-25-001 46

prior to taking a matter to court is a standard and basic function of administrative law.127

The administrative appeal process gives the Commission an opportunity to correct any 

error and to ensure that Commission policy has been properly complied with. This 

process creates efficiency in the administrative process and promotes judicial economy. 

In addition, the current FOIA and CEII process provides for administrative appeal.128

79. In response to NRECA’s suggestion regarding appeal timeframes, the 

Commission will revise the amended regulations at section 388.113(j) to provide more 

specificity about the process for submitting an administrative appeal. After receiving a 

determination that information no longer qualifies as CEII, a submitter may appeal that 

determination. To make an appeal, the submitter must file a notice of appeal to the 

General Counsel, copying the CEII Coordinator, within 5 business days of the date of the 

determination.129 A statement in support of the appeal (a statement providing applicable 

facts and legal authority) must be submitted to the General Counsel within 20 business 

 127 See Hidalgo v. FBI, 344 F.3d 1256, 1258-59 (D.C. Cir. 2003) (holding that 

“exhaustion of administrative remedies is generally required before filing suit in federal 

court so that the agency has an opportunity to exercise its discretion and expertise on the 

matter and to make a factual record to support its decision”).

128 NOPR, 155 FERC ¶ 61,278 at P 28.

129 Requiring the submitter to inform the Commission of its intent to appeal within 

5 business days will allow the Commission to know sooner than later whether the 

submitter plans to challenge the decision and, if not, allow the Commission to disclose 

the information sooner. 
Docket Nos. RM16-15-000 and RM15-25-001 47

days of the date of the determination. The appeal will be considered received upon 

receipt of the statement in support of the appeal. A determination denying a request for 

disclosure or denying a request to designate a document as public may also be 

appealed. A notice of appeal is not required for these determinations because information 

would not be disclosed under the challenged decision. However, the requester must 

submit an appeal within 20 business days of the date of the determination by submitting 

its statement in support of its appeal to the Commission’s General Counsel.

130 The 

General Counsel or the General Counsel’s designee will make a determination with 

respect to any appeal within 20 business days after the receipt of the appeal, unless 

extended pursuant to section 388.110(b)(1), which will equally apply to CEII for 

purposes of appeals.

80. To avoid any uncertainty, the Commission will amend section 375.309 to include 

a provision to make clear that the Commission has delegated to the General Counsel 

authority to make determinations on behalf of the Commission on appeals of designations 

and determinations regarding CEII. 

 130 The Trade Associations suggest that the Commission should issue an order on 

appeal of any denial of an information owner’s objections to disclosure of CEII pursuant 

to a NDA. Trade Association Comments at 20. Under our current practice, the decision 

to disclose CEII pursuant to a NDA is appealable directly to a district court under 

5 U.S.C. 552(a)(4)(B). There is no need to establish an additional procedure under the 

amended regulations that requires the Commission to issue an order on appeal.
Docket Nos. RM16-15-000 and RM15-25-001 48

C. Duty to Protect CEII 

NOPR

81. The Commission proposed revisions to strengthen the handling requirements for 

Commission employees and external recipients of CEII. With respect to Commission 

staff, the Commission proposed to add section 388.113(h) to require Commissioners, 

Commission staff, and Commission contractors to comply with the Commission’s 

internal controls.131 For external recipients of CEII, the Commission proposed requiring 

requesters to provide specific information to demonstrate a legitimate need for the 

information and to include a signed statement attesting to the accuracy of the information 

provided in any CEII request.132 The Commission also proposed that all NDAs 

minimally require that CEII: (1) will only be used for the purpose it was requested; 

(2) may only be discussed with authorized recipients; (3) must be kept in a secure place 

in a manner that would prevent unauthorized access; and (4) must be destroyed or 

 131 NOPR, 155 FERC ¶ 61,278 at P 30.

132 Id. PP 33-34. Specifically, the Commission proposed to require a requester to 

demonstrate: (1) the extent to which a particular function is dependent upon access to the 

information; (2) why the function cannot be achieved or performed without access to the 

information; (3) whether other information is available to the requester that could 

facilitate the same objective; (4) how long the information will be needed; (5) whether or 

not the information is needed to participate in a specific proceeding (with that proceeding 

identified); and (6) whether the information is needed expeditiously. Id.
Docket Nos. RM16-15-000 and RM15-25-001 49

returned to the Commission upon request. The Commission also proposed that the NDA 

make clear that the Commission may audit compliance with the NDA. 

Comments

82. The Trade Associations request that the Commission provide further details of the 

content and nature of the internal controls and include them in the Commission’s 

regulations.133 MISO agrees that the Commission should have internal controls and notes 

that the internal controls should be enforced.134 

83. Several commenters request that the Commission expand the list of minimum 

requirements for a NDA. MISO and NRECA note that the NOPR recognizes the need for 

requesters to protect CEII after the designation has lapsed and recommend that the duty 

to protect expired CEII be included in the minimum NDA requirements.135 MISO, the 

Trade Associations and APS recommend that the Commission require recipients to report 

all unauthorized disclosures.

136 NERC recommends adding to the NDA a requirement 

 133 Trade Associations Comments at P 36-37. The Trade Associations also state 

that the Commission should consider expounding on recommendations from the DOE IG. 

134 MISO Comments at 8.

135 MISO Comments at 8; NRECA Comments at 10. 

136 MISO Comments at 9; Trade Associations Comments at 26; APS Comments at 

10. 
Docket Nos. RM16-15-000 and RM15-25-001 50

that a recipient must destroy or return CEII by specific deadlines.137 NERC and the 

Trade Associations request that submitters be able to enforce the terms of a NDA that 

covers the submitter’s CEII.

138 

84. In addition to the NDA recommendations stated above, the Trade Associations 

request that the Commission add the following clauses to the NDA: (1) recipients of 

CEII shall have information protection policies and procedures to protect the CEII; and 

(2) an officer of the recipient’s organization, on behalf of the organization, as well as all 

individuals who will have access to the CEII, shall execute the NDA, which shall specify 

that the individuals and organization face sanctions for failure to honor the terms of the 

NDA.139

85. APS encourages the Commission to review the current NDA for potential gaps, 

such as the lack of an obligation to treat CEII with the same degree of care as a requester 

would treat its own confidential or proprietary information.140 NRECA asks the 

 137 NERC Comments at 14.

138 NERC Comments at 14; Trade Associations Comments at 26. 

139 Trade Associations Comments at 26. 

140 APS Comments at 9-10.
Docket Nos. RM16-15-000 and RM15-25-001 51

Commission to clarify that a NDA is required when an entity receives CEII after the 

designation expires.141 

86. Peak seeks clarification regarding the requirements for keeping CEII in a secure 

place and manner.142 Peak explains that recipients of CEII may have different views of 

what constitutes a “secure place.”143

87. The Trade Associations recommend that the Commission adopt a monitoring and 

enforcement process to discourage unauthorized disclosures and ask for additional 

language clarifying that “any person or entity found to have used or disclosed CEII in a 

manner inconsistent with the NDA will lose its access to CEII for an extended period of 

time.”144 The Trade Associations and NRECA suggest that the Commission determine 

that noncompliance with the NDA would subject an individual to penalties of up to 

$1 million per violation per day.145

88. NERC requests that the Commission ensure that requesters have not been 

convicted of criminal activity by performing background checks, reviewing watch lists, 

 141 NRECA Comments at 10. 

142 Peak Comments at 14-15. 

143 Id.

144 Trade Associations Comments at 34.

145 Trade Associations Comments at 35; NRECA Comments at 16-17. 
Docket Nos. RM16-15-000 and RM15-25-001 52

and verifying security clearances to prevent inadvertent disclosures of CEII to a person 

with a criminal record or who is under investigation or on a terrorist watch list.

146

89. NERC also proposes that the Commission include evidentiary criteria to determine 

whether a requester of CEII is legitimate, and the Trade Associations ask the Commission 

to conduct risk assessments on all requesters.147 

90. APS urges the Commission to require all requests to include at least two business 

references and the submission of documentation of authority for organizational 

requesters.148 Peak requests that if a CEII request is not for participation in a specific 

proceeding, the requester should be required to include in its statement of need a 

“reliability or societal benefit.”149

Commission Determination

91. We disagree with the Trade Associations’ recommendation that we provide 

additional details regarding internal controls and that we include internal controls in the 

Commission’s regulations. The NOPR stated that the internal controls will address “how 

 146 NERC Comments at 13-14.

147 NERC Comments at 12-14; Trade Associations Comments at 33. 

148 APS Comments at 7-8.

149 Peak Comments at 14.
Docket Nos. RM16-15-000 and RM15-25-001 53

sensitive information, including CEII, should be handled, marked, and kept.”150 We find 

that this statement provides sufficient details regarding the nature of the internal controls. 

We also conclude that internal controls should not be specified in the Commission’s 

regulations to allow Commission staff the flexibility to revise such controls as needed.151

92. Amended section 388.113(h)(2) only includes “minimum” requirements for a 

NDA and is not intended to be exhaustive or preclude other requirements. Under certain 

circumstances the Commission may add additional provisions to the NDA and submitters 

may request that additional provisions be added to the NDA. 

93. In response to MISO’s and NRECA’s comments, the Commission will amend 

section 388.113(h)(2) to require a recipient of CEII under a NDA to protect the CEII after 

a designation lapses as part of the list of minimum requirements of a NDA. In response 

to the comments by MISO, the Trade Associations and APS, we will also amend 

section 388.113(h)(2) to add an obligation to require CEII recipients to promptly report 

all unauthorized disclosures of CEII to the Commission.

 150 NOPR, 155 FERC ¶ 61,278 at P 30.

151 In developing this Final Rule and the internal controls, the Commission has 

been cognizant of the recommendations of the DOE Inspector General Report from 

January 30, 2015 as well as the Commission’s earlier response thereto, which are a 

matter of public record. See Department of Energy, Office of Inspector General, 

Inspection Report, Review of Controls for Protecting Nonpublic Information at the 

Federal Energy Regulatory Commission, DOE/IG-0933 (January 2015), 

http://energy.gov/ig/downloads/inspection-report-doeig-0933. 
Docket Nos. RM16-15-000 and RM15-25-001 54

94. In response to NRECA’s concern, the Commission clarifies that a requester 

seeking information past the expiration of the CEII designation marked on the 

information must still pursue the information through the CEII or FOIA processes. We 

read NRECA’s comments to apply to situations where an entity requests information that 

has been submitted to the Commission more than five years prior to the request and the 

Commission has not made a determination to re-designate the information. In these 

situations, the CEII Coordinator will make a re-designation determination as part of the 

response to a request seeking access to information that has a designation determination 

older than five years. If the information is re-designated as CEII, then it will be 

processed pursuant to the Commission’s requirements for CEII. 

95. The Commission is not persuaded by Peak’s comments that there is a need to 

clarify what constitutes maintaining CEII in a secure place. We believe that a “secure 

place,” as articulated in the NDA, has a well-understood meaning, i.e. safe or free from 

unauthorized access or a risk of loss. 

96. The Commission believes that it has sufficient authority to enforce the terms of the 

NDA and, as a result, it is unnecessary to confer on NERC or others authority to enforce 

the terms of a NDA.

97. In response to the comments of the Trade Associations and NRECA, the 

Commission notes that the FAST Act does not require the Commission to develop 

sanctions for external recipients of CEII. In any event, the general CEII NDA already 
Docket Nos. RM16-15-000 and RM15-25-001 55

states that a violation of the NDA may result in civil sanctions for an external recipient of 

CEII, and it will continue to do so. It is not necessary to list all the various civil sanctions 

that may apply, as each matter would be reviewed on its own facts. For these reasons, we 

also decline to adopt the Trade Associations’ recommendation that we add to the 

minimum requirements of a NDA a provision that CEII recipients may be sanctioned by 

losing access to CEII for an extended period of time.

98. The Commission agrees that it is important to ensure that requesters of CEII do 

not pose security risks. CEII requesters have historically fallen into different categories, 

including individuals known to the Commission with no known risk.152 The Commission 

will continue the practice of requiring information needed to verify the legitimacy of a 

requester on an as-needed basis. As such, there is no need for a CEII requester to 

demonstrate that there is a “reliability or social benefit” to the request. We believe that 

our procedures have adequately assessed whether requestors should receive CEII. In 

addition, we propose additional requirements for a requester to obtain CEII information. 

Thus, given these procedures, it is not necessary to mandate specific background check 

criteria in the regulations. Moreover, while the current request form asks for a business 

 152 Requests are typically received from public utilities, gas pipelines, hydro 

developers, academics, landowners, public interest groups, researchers, renewable energy 

organizations, and consultants. 
Docket Nos. RM16-15-000 and RM15-25-001 56

reference, we are not persuaded that such a submission is necessary in all instances or 

that two references are necessary.

153 

D. Sanctions 

NOPR

99. Section 215A(d)(2)(C) of the FPA requires the Commission to “ensure there are 

appropriate sanctions in place for Commissioners, officers, employees, or agents of the 

Commission or DOE who knowingly and willfully disclose critical electric infrastructure 

information in a manner that is not authorized under this section.”154 The Commission 

proposed sanctioning unauthorized disclosures of CEII by Commission personnel and

further noted that DOE will have responsibility for sanctions for unauthorized disclosures 

by its officers and employees.155 The Commission also proposed to refer any misconduct 

by the Chairman or Commissioners to the DOE Inspector General (DOE IG).

156 

Comments

100. Several commenters, including APPA and the Trade Associations, point to the 

absence of stated sanctions for Commissioners in the NOPR and request that the 

 153 Electronic CEII Request Form, http://www.ferc.gov/resources/guides/filingguide/ceii-request.asp. 

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

155 NOPR, 155 FERC ¶ 61,278 at P 36.

156 Id.
Docket Nos. RM16-15-000 and RM15-25-001 57

Commission consider whether to impose civil sanctions under section 316A of the FPA 

and criminal penalties under section 316(b) of the FPA.157 APPA also recommends that

the Commission consider referring unauthorized CEII disclosures by Commissioners to 

the Department of Justice (DOJ) and that the Commission coordinate with DOE to 

outline a new or cite an existing procedure that DOE can utilize to sanction its

employees.158 MISO suggests that the Commission’s General Counsel be tasked with 

referring any willful, unauthorized disclosures to the DOE IG.159 NRECA asks that a 

mechanism be put in place for the public to make a referral to the DOE IG if they are 

aware of any misconduct.160 MISO and NRECA recommend that the Commission revise 

 157 See Trade Associations Comments at 40 (noting that CEII protections adopted 

in the FAST Act were adopted in the context of what many considered to be an 

inappropriate disclosure of CEII by a former FERC Commissioner); see also APPA 

Comments at 28. APPA states that the Commission has authority to impose civil 

penalties against “any person” who violates any provision of any Commission rule and 

may use criminal penalties under FPA section 316(b) for knowing and willful violations, 

by “any person” of Commission rules or regulations under the FPA. 

158 APPA Comments at 27, 29. APPA also asserts that a DOE employee 

sanctioned for unauthorized disclosure may be able to challenge their sanction “on 

grounds that it was not promulgated by the Commission, as directed by Congress.”

159 MISO Comments at 10. 

160 NRECA Comments at 16.
Docket Nos. RM16-15-000 and RM15-25-001 58

its proposed rule to make clear that the Commission “shall” refer any misconduct to the 

DOE IG and to allow the public to refer matters to the DOE IG.161

Commission Determination

101. As discussed below, we conclude that the sanctions adopted in this Final Rule, as 

well as other reforms adopted prior to the passage of the FAST Act, provide sufficient 

deterrents to the unauthorized disclosure of CEII. 

102. First, we note that, in addition to the changes adopted in this Final Rule, the 

Commission has recently made a number of changes to its internal procedures to ensure 

the protection and security of CEII. 

103. The Commission has revised its security classification and ethics training to 

ensure that Commission employees are aware of their responsibility to protect sensitive 

nonpublic information. The Commission also has strengthened its protection of CEII and 

other sensitive, non-public information. For example, the Commission conducted a 

comprehensive review of its internal information governance procedures, which informed 

the development of the internal controls referenced in this Final Rule. We believe that 

these reforms should help protect against unauthorized disclosure of CEII. 

104. The Commission has also taken steps to ensure that there are appropriate sanctions 

in place for certain persons who knowingly and willfully disclose CEII without 

 161 MISO Comments at 10; NRECA Comments at 16.
Docket Nos. RM16-15-000 and RM15-25-001 59

authorization. With respect to former employees and Commissioners, the Commission 

has strengthened certain requirements applicable to departing employees and 

Commissioners by requiring them to certify that they are not unlawfully removing 

records from the agency. This certification form also identifies and requires a departing 

employee or Commissioner to acknowledge the potential criminal penalties associated 

with the unlawful removal or destruction of federal records. While these changes predate the passage of the FAST Act, they are an important component of the Commission’s 

ongoing efforts to protect against improper disclosure of CEII. 

105. As to existing Commission officers, employees, and agents, we conclude that the 

sanctions adopted in this Final Rule are appropriate, as they provide for possible 

dismissal from federal service and criminal prosecution for improper disclosure of CEII. 

These sanctions should serve as a deterrent to, and punishment for, improper activity. 

106. With respect to Commissioners, we believe it is appropriate that violations be 

referred to the DOE IG, as that office is equipped to investigate a Commissioner’s actions 

and impose sanctions on a Commissioner through an independent process outside of the 

Commission’s enforcement process.162 For example, it is within the DOE IG’s discretion 

after concluding its investigation to refer a matter to the DOJ for criminal prosecution

 162 We note that no commenter has indicated that the DOE IG has insufficient 

tools to investigate and, as appropriate, pursue sanctions for a Commissioner.
Docket Nos. RM16-15-000 and RM15-25-001 60

Upon becoming aware of a potentially improper disclosure of CEII, the Designated 

Agency Ethics Official (DAEO) will oversee an examination of those circumstances. If 

there is reason to believe that an improper disclosure has occurred, the DAEO will refer 

the matter to the DOE IG. 

107. Finally we conclude that there is no need to add a mechanism to our regulations 

for the public to make a referral to the DOE IG, as the DOE IG has an existing hotline in 

place for the public.163 The Commission will also continue to defer to DOE as to what 

sanctions would be appropriate for DOE officers and employees.

E. Voluntary Sharing of CEII 

NOPR

108. Section 215A(d)(2)(D) of the FPA requires that the Commission: 

taking into account standards of the Electric Reliability 

Organization, facilitate voluntary sharing of critical electric

infrastructure information with, between, and by — 

(i) Federal, State, political subdivision, and tribal authorities; 

(ii) the Electric Reliability Organization; (iii) regional 

entities; (iv) information sharing and analysis centers 

established pursuant to Presidential Decision Directive 63; 

(v) owners, operators, and users of critical electric

infrastructure in the United States; and (vi) other entities 

determined appropriate by the Commission.164 

 163 See DOE IG Hotline, http://www.energy.gov/ig/services. 

164 FAST Act, Pub. L. No. 114-94, section 61,003, 129 Stat. 1312, 1776.
Docket Nos. RM16-15-000 and RM15-25-001 61

109. The Commission proposed that it would voluntarily share Commission-generated 

CEII and CEII submitted to the Commission with individuals or organizations when there 

is a need to ensure that energy infrastructure is protected.

165 Under this proposal, the 

Commission may voluntarily share CEII without receiving a request for the CEII.

166 

However, the NOPR proposed that all voluntarily shared CEII would be shared subject to 

an appropriate NDA or Acknowledgement and Agreement.167 Additionally, the NOPR 

proposed to require an Office Director or his designee to consult with the CEII 

Coordinator before voluntarily sharing CEII.168

110. In the NOPR, the Commission also noted that it retains the discretion to release 

information as necessary for other federal agencies to carry out their jurisdictional 

responsibilities.169 

111. The NOPR also proposed that the Commission may impose additional restrictions 

on how voluntarily shared CEII may be used and maintained.170 Where practicable, the 

 165 NOPR, 155 FERC ¶ 61,278 at PP 37-38, 40.

166 Id. P 38.

167 Id. P 40.

168 Id. P 39.

169 Id.

170 Id. P 41.
Docket Nos. RM16-15-000 and RM15-25-001 62

Commission proposed providing notice of its voluntary sharing of CEII to the submitter 

of the CEII.

171 

Comments

112. Several commenters observe that the NOPR only addressed the Commission’s 

voluntary sharing of CEII and did not establish guidelines for the voluntary sharing of 

CEII “with, between, and by” other entities.172 Powerex requests that the Commission 

facilitate the sharing of CEII between and by owners, operators, and users of the critical 

electric infrastructure, while still adequately safeguarding CEII.173 The Public Interest 

Organizations and WIRAB recommend that the Commission adopt a “white list” of CEII 

requesters that the Commission determines do not pose a risk of unauthorized 

disclosure.

174 They also contend that the Commission should adopt a universal NDA to 

encourage more sharing between and by non-Commission entities.175 WIRAB also seeks 

 171 Id. P 42. The Commission noted that it may not be practicable to provide 

notice to the submitter in instances where voluntary sharing is necessary to maintain 

infrastructure security, to address a potential threat, or in other exigent circumstances.

172 See, e.g., Peak Comments at 5-6; Powerex Comments at 13-14; APPA 

Comments at 31; NRECA Comments at 13.

173 Powerex Comments at 13-15.

174 Public Interest Organizations Comments at 8-9; WIRAB Comments at 9.

175 Id. 
Docket Nos. RM16-15-000 and RM15-25-001 63

standardization of NDAs used by NERC, regional entities, and the owners and operators 

of Critical Electric Infrastructure in the United States.176

113. The Joint RTOs (ISO New England, Inc. and Southwest Power Pool, Inc.) suggest 

that the Commission facilitate the sharing of CEII by permitting regional transmission 

organizations (RTOs), independent system operators (ISOs), and other entities with 

FERC-approved tariffs or similar agreements to share CEII “between the entities relying 

on their tariff information-handling commitments.”177 In response, PJM states that the 

Commission should reject the Joint RTOs’ proposal, arguing that it is incomplete and 

overbroad and fails to acknowledge results achieved through the current sharing of 

CEII.178 The Joint RTOs, in reply comments, state that their proposal would simply 

allow ISOs, RTOs, and other entities with Commission-approved tariffs that have 

planning and operations responsibilities to use those tariffs to facilitate informationsharing.179

 176 WIRAB Comments at 10.

177 Joint RTOs Comments at 4. MISO also suggests the Commission encourage 

sharing between planning authorities and transmission planners. See MISO Comments 

at 10.

178 PJM Reply Comments at 2.

179 Joint RTOs Reply Comments at 2.
Docket Nos. RM16-15-000 and RM15-25-001 64

114. NERC generally supports the Commission’s proposal to facilitate voluntary 

information sharing with NERC, regional entities and information sharing and analysis 

centers. NERC, nonetheless, requests that the Commission, under appropriate 

circumstances, share CEII with the Electricity Information Sharing & Analysis Center

(E-ISAC) when voluntarily sharing CEII with a governmental entity.180 NERC asks that 

the voluntary sharing process include coordination between the CEII Coordinator and 

certain Commission office staff prior to any disclosure.

181 

115. APS, the Trade Associations and CEA ask for additional criteria as to how and 

when the Commission will voluntarily share information.182

116. APPA asserts that FPA § 215A(d)(2)(D) directs the Commission only to facilitate 

voluntary sharing of CEII among electricity subsector stakeholders – not to preemptively 

share CEII with interested parties.183 APPA asserts that when the Commission 

voluntarily shares submitted information, it effectively forces the entity that submitted the 

information as CEII to share its information with others, which may reduce the incentive 

 180 NERC Comments at 9.

181 Id.

182 APS Comments at 13; Trade Associations Comments at 27; CEA Comments 

at 5. 

183 APPA Comments at 30.
Docket Nos. RM16-15-000 and RM15-25-001 65

for the entity to voluntarily share CEII with the Commission.

184 APPA recommends that 

the Commission designate E-ISAC and any other appropriate Information Sharing and 

Analysis Organizations (ISAOs) as forums through which CEII can be shared under FPA 

§ 215A, and to apply the liability protections of FPA section 215A(f)(3) to those 

entities.

185 APPA also recommends that the Commission provide protections like those 

that are utilized by other federal agencies to facilitate information sharing activity.186

117. The Trade Associations request that the regulations explicitly state that the 

voluntary sharing of CEII is limited to instances where the Commission has determined 

that there is a need to “ensure that energy infrastructure is protected.”187 

118. CEA requests that the Commission include language clarifying that the 

Commission will make every reasonable effort to provide advance notice before sharing 

CEII and will provide after-the-fact notice if prior notice is not practical.188 MISO 

 184 Id.

185 APPA Comments at 31-32.

186 Id. at 31-32. For example, APPA proposes that the Commission allow for 

“source anonymizing” shared CEII or to adopt DHS’s Traffic Light Protocol to ensure 

information is shared with the correct audience.

187 Trade Associations Comments at 27-28.

188 CEA Comments at 6. NRECA also references the need to provide notice as 

soon as possible, even if such notice is after the disclosure. See NRECA Comments 

at 12. 
Docket Nos. RM16-15-000 and RM15-25-001 66

recommends that the Commission adopt regulatory language indicating that “when prior 

notice is not given, submitters of CEII shall receive notice of a limited release of CEII as 

soon as practicable.”189 NRECA requests that the Commission clarify that any disclosure 

by the Commission on the basis of “voluntary sharing” must be subject to the same 

notice, comment, and appeal rights provisions that are afforded to submitters in response 

to CEII requests.190

119. The Trade Associations state that the proposed regulations could be strengthened 

by: (1) limiting and defining the circumstances where notice would “not be practicable”;

and (2) allowing the submitters an opportunity to provide comments protesting the 

release of information the Commission proposes to voluntarily share.191 

120. Finally, TAPS requests that the Commission revise its delegations to reflect the 

NOPR’s proposal that Office Directors will engage in voluntary sharing.192 

Commission Determination

121. Many of the commenters misapprehend how CEII may be voluntarily shared

under the FAST Act or otherwise seek to expand the Commission’s CEII sharing 

 189 MISO Comments at 11. 

190 NRECA Comments at 12-13.

191 Trade Associations Comments at 30. 

192 TAPS Comments at 12-13.
Docket Nos. RM16-15-000 and RM15-25-001 67

program in ways that neither the FAST Act nor the NOPR contemplated. Under FPA 

section 215A(a)(3), CEII is limited to information that is submitted to, or generated by, 

the Commission and designated as such by the Commission (or information submitted to, 

or generated by DOE, and designated as such by DOE).

193 In voluntarily releasing CEII 

to a person, the Commission imposes obligations on that person through a NDA. 

However, the Commission’s CEII rules do not, and are not intended to, address 

information that an entity has unilaterally determined to be CEII and never submitted to 

the Commission.194 In addition, the Commission’s regulations do not cover an entity that 

has submitted CEII to the Commission but intends to share the same information with 

others outside of the Commission’s processes. To be clear, an entity that receives CEII 

from the Commission is subject to the restrictions in the applicable NDA, including 

restrictions on use and disclosure. However, an entity that submitted the information to 

the Commission is not subject to a NDA and, as a result, the Commission’s rules do not 

 193 FAST Act, Pub. L. No. 114-94, section 61,003, 129 Stat. 1312, 1773 (“critical 

electric infrastructure information means information ... generated by or provided to 

the Commission or other Federal agency ... that is designated as critical electric 

infrastructure information by the Commission or the Secretary pursuant to 

subsection (d)”).

194 As CEII information has to be designated by the CEII Coordinator or DOE 

Secretary, information that an entity creates and maintains without providing to the 

Commission has not been formally designated as CEII.
Docket Nos. RM16-15-000 and RM15-25-001 68

apply to how that entity may want to share its information.195 Moreover, an entity may 

have information that could qualify as CEII, but such information is not CEII under the 

Commission’s regulations unless it has been submitted to the Commission pursuant to

the Commission’s CEII regulations and the Commission has determined it to be CEII. 

122. The Final Rule facilitates voluntary sharing by allowing the public to request 

CEII and by adding to the Commission’s regulations a process whereby staff may share 

CEII in a proactive manner with a variety of entities. The Commission agrees with 

PJM’s comments that existing non-public voluntary sharing mechanisms within the 

energy industry are sufficient to encourage sharing information among the different 

groups and therefore there is no need for the Commission to establish requirements for 

sharing within the industry through tariff revisions or otherwise.

196 It is also unnecessary 

to adopt Public Interest Organizations’ and WIRAB’s recommendation that the 

Commission establish “whitelists” for third parties to use or to require entities sharing 

information outside of the Commission’s CEII process to adopt a particular NDA. 

 195 However, other concerns may influence how the entity shares its own 

information with others. 

196 Section 215A(d) requires the Commission “to promulgate [] regulations as 

necessary” to, inter alia, “facilitate voluntary sharing of critical electric infrastructure 

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

FAST Act, therefore, affords the Commission with discretion in this regard and, at least 

implicitly, recognizes that the Commission may, identify, encourage and support existing 

processes to facilitate the voluntary sharing of CEII.
Docket Nos. RM16-15-000 and RM15-25-001 69

123. The Commission agrees with NERC and APPA that the plain language of the 

statute expressly provides for the voluntary sharing of information with entities like 

E-ISAC and other ISAOs. Section 215A(d)(2)(iv) concerns the voluntary sharing of 

CEII with, between, and by “information sharing and analysis centers established 

pursuant to Presidential Decision Directive 63.” Pursuant to that provision, the 

Commission anticipates voluntary sharing of information with, between and by E-ISAC 

and other ISAOs under the appropriate circumstances. Under our current NDAs, CEII 

recipients may share CEII with other individuals covered by a NDA for the same 

information.197 When information is provided in accordance with section 215A(d) 

the provisions for release from liability in section 215A(f)(3) would apply.

124. The Commission disagrees with APPA that E-ISAC or another ISAO should 

be designated as a forum to share CEII. The FAST Act does not specify that the 

Commission should designate E-ISAC, another ISAO, or any other entity as a forum 

through which CEII can be shared under section 215A. In fact, a plain reading of the 

statute indicates that Congress designated the Commission as the entity to facilitate this 

sharing. As such, the Commission declines to take the recommendation of APPA.

 197 See, e.g., Critical Energy Infrastructure Information General Non-Disclosure 

Agreement, https://www.ferc.gov/legal/ceii-foia/ceii/gen-nda.pdf (“A Recipient may only 

discuss CEII with another Recipient of the identical CEII. A Recipient may check with 

the CEII Coordinator to determine whether another individual is a Recipient of the 

identical CEII.”). 
Docket Nos. RM16-15-000 and RM15-25-001 70

125. We disagree with APPA’s assertions that the voluntary sharing provision in the 

Commission’s regulations effectively requires entities to share CEII with another entity

or the Commission.

198 Section 215A(d)(6) explicitly states that an entity is not required 

to share CEII with the Commission or another entity or person.

199 The voluntary sharing 

provision does not impose a sharing requirement on entities; instead, it allows the 

Commission discretion to share, in certain circumstances, CEII that has already been 

submitted to, or generated by, the Commission. 

126. 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 its jurisdictional responsibilities against an entity’s 

possible preference not to have such information disclosed.200 The regulations adopted 

here achieve that balance. Furthermore, the FAST Act does not place limits on the 

Commission’s ability to share information in its possession when authorized and 

necessary to carry out the requirements of the FAST Act or the Commission’s other

jurisdictional responsibilities. 

 198 FAST Act, Pub. L. No. 114-94, § 61,003, 129 Stat. 1312, 1777. 

199 Id.

200 The FAST Act does not prohibit the Commission from disclosing any 

information, nor does it require an entity to produce any information. FAST Act, Pub. L. 

No. 114-94, section 61,003, 129 Stat. 1312, 1777.
Docket Nos. RM16-15-000 and RM15-25-001 71

127. As noted in the NOPR, in some circumstances, providing notice to a submitter of 

CEII that its information will be shared under section 215A could hamper the ability of 

the Commission to act in a timely way.201 The Commission, therefore, disagrees with 

the comments by APPA and NRECA that prior notice must be provided in each instance 

where the Commissions uses the voluntary sharing provisions of section 215A. 

However, in response to the comments, the Commission clarifies in amended 

section 388.113(f) that the Commission will not provide advanced notice only in 

situations where there is an urgent need to disseminate the information. The Commission 

will also adopt MISO’s and CEA’s proposal that when prior notice is not given, the 

Commission will provide submitters of CEII whose information was shared with notice 

as soon as practicable. 

128. The NOPR proposed to require that a consultation between the CEII Coordinator 

and the appropriate Office Director take place prior to any voluntary sharing of CEII. We 

disagree with NERC’s proposal to add a requirement that staff from the Commission’s 

Office of Electric Reliability (OER) and Office of Energy Infrastructure Security (OEIS)

be involved in all voluntary sharing consultations because the information in question

may not involve OEIS or OER subject matter. However, we note that the CEII 

Coordinator will consult with Commission staff as appropriate, which could include OER 

 201 NOPR, 155 FERC ¶ 61,278 at P 38.
Docket Nos. RM16-15-000 and RM15-25-001 72

and OEIS staff. The Commission is also not persuaded that it is necessary to provide 

additional details regarding the factors the Commission will use to determine when 

voluntary sharing is appropriate. The NOPR specifically proposed that the Commission 

will voluntarily share “CEII with individuals and organizations that the Commission has 

determined need the information to ensure that energy infrastructure is protected.”202 

Thus, the NOPR provided sufficient details on the circumstances in which the 

Commission will voluntarily share CEII. Providing more details may unnecessarily 

restrict the Commission’s ability to voluntarily share needed information.

129. The Commission disagrees with APPA’s suggestion that the regulations should 

include more developed protections to facilitate information sharing. 203 The 

Commission believes that procedures outlined in the NOPR are sufficient to protect CEII

that the Commission shares. When the Commission voluntarily shares information, CEII 

will be shared subject to an appropriate NDA or Acknowledgement and Agreement.204 

Moreover, under section 388.113(f), the Commission may impose additional conditions 

 202 NOPR, 155 FERC ¶ 61,278 at P 37. 

203 Id. PP 31-32

204 As noted below, to obtain CEII federal agencies execute an Acknowledgement 

and Agreement, as opposed to a NDA. See Federal Agency Acknowledgement and 

Agreement, http://www.ferc.gov/legal/ceii-foia/ceii/fed-agen-acknow-agree.pdf. 
Docket Nos. RM16-15-000 and RM15-25-001 73

on how the information may be used and maintained that the Commission voluntarily 

shares. 

130. In response to TAPS’s comment, the Commission finds that the CEII Coordinator 

delegation in section 375.313 is sufficient and does not require separate delegations for 

Office Directors to voluntarily share CEII. Moreover, existing section 388.113(d)(1) has 

allowed Commission staff to share Critical Energy Infrastructure Information with 

facility owners and operators. No such delegated authority has been used for such 

sharing. 

F. Request for Access to CEII 

NOPR

131. The Commission proposed to maintain special access procedures for owneroperators of facilities, federal agencies, and intervening parties.205 For intervenors, 

the Commission proposed to move the existing procedures in section 388.112 to 

section 388.113 and to eliminate the exemption for certain LNG materials.206 For general 

requesters, the Commission added a one-year time limit for organizational requests and 

added back a time requirement for the Commission to process CEII requests.207 The 

 205 NOPR, 155 FERC ¶ 61,278 at PP 43-49.

206 Id. P 49.

207 Id. PP 50-51. 
Docket Nos. RM16-15-000 and RM15-25-001 74

Commission also proposed adding a provision to clarify that the Commission’s CEII 

regulations should not be construed to require the release of certain non-CEII.208 

Comments 

132. APPA recommends that the Commission adopt a tiered system with varying levels 

of access restrictions.209 APPA and the Trade Associations suggest that the Commission 

create a distinct “need to know” standard to access information related to the bulk-power

system.210 Under this suggested standard, CEII would only be disclosed when the person 

or entity seeking the information has a direct “need to know” in order to maintain 

reliability, safety, or security.211 

133. The Trade Associations recommend that if an academic institution or other 

members of the public request CEII, the Commission should deny the request and refer 

the request to the information owner.212 Peak, on the other hand, supports data sharing 

with researchers and asks the Commission to permit researchers to access CEII data.213 

 208 Id. P 52.

209 APPA Comments at 19.

210 APPA Comments at 18; Trade Associations Comments at 27.

211 APPA Comments at 9; Trade Associations Comments at 27.

212 Trade Associations Comments at 32.

213 Peak Comments at 7-8.
Docket Nos. RM16-15-000 and RM15-25-001 75

Peak also suggests that the Commission consider whether “research institutions with 

defined cyber security and employee background checks” should have a specific process 

for obtaining CEII.214 WIRAB supports the Commission’s balancing approach for 

determining who should receive CEII, but WIRAB recommends that the Commission 

delete the portion of proposed section 388.113(g)(iv) that states that the Commission can 

deny a request for “other reasons.”215 

134. Peak recommends that the Commission’s sharing of CEII with owners and 

operators should not be limited to information related to “its own facility.”216 

135. Public Interest Organizations support the NOPR’s proposed revisions allowing 

certain LNG materials to be accessible in proceedings in which there is a right to 

intervention.217 Public Interest Organizations suggest that “the Commission streamline 

the release of CEII data for intervenors by allowing one request to trigger release of all of 

an entity’s CEII data.”218 

 214 Id. at 14.

215 WIRAB Comments at 8.

216 Peak Comments at 13.

217 Public Interest Organizations Comments at 9.

218 Id. at 9-10.
Docket Nos. RM16-15-000 and RM15-25-001 76

136. MISO notes that for purposes of consistency, the Commission should add 

language already in section 388.112(b)(iv) to amended section 388.113(g)(4) to ensure 

that, if an objection to a request for disclosure is filed, whether the information is 

privileged or CEII, “the filer shall not provide the non-public document to the person or 

class of persons identified in the objection until ordered by the Commission or a 

decisional authority.”219 

137. Peak asks the Commission to clarify whether the protections proposed in 

section 388.113(g)(2) regarding the obligation of federal agency recipients to protect 

CEII in the same manner as the Commission extends to data generated by a federal 

agency through an analysis of CEII.220 

138. APS requests that the Commission revise amended section 388.113(g)(5)(vi) to 

require organizational requesters to promptly update/remove individuals from their list 

of approved individuals.221 

139. The Trade Associations and APS state that they are concerned that amended 

section 388.113(g)(5)(v), which allows an individual under an organizational request to 

have access to CEII for the remainder of a calendar year, may result in a less robust 

 219 MISO Comments at 4.

220 Peak Comments at 13.

221 APS Comments at 11; see also Trade Associations Comments at 35.
Docket Nos. RM16-15-000 and RM15-25-001 77

verification system.222 WIRAB supports allowing requesters to maintain their validity 

for the duration of the calendar year.223

140. INGAA asks for acknowledgment that the Commission approves of entities 

providing requested information directly to CEII requesters.224 INGAA also requests that 

proposed section 388.113(g)(5)(ix) be modified to add “information on rare species of 

plants and animals” to the list of items not required to be released through the CEII 

process.225 

141. Public Interest Organizations ask the Commission to establish a reasonable 

timeline for the review of and response to CEII requests.226 APS requests that the 

Commission add a default twenty-day time period to respond to CEII requests unless the 

information is needed in fewer than twenty days.227 NERC suggests that the Commission 

 222 Trade Associations Comments at 35; APS Comments at 10-11. 

223 WIRAB Comments at 9.

224 INGAA Comments at 4.

225 Id.

226 Public Interest Organizations Comments at 10 (noting that it often takes 4-6 

months to get access to Form No. 715 information through the existing Critical Energy 

Infrastructure Information process).

227 APS Comments at 8. 
Docket Nos. RM16-15-000 and RM15-25-001 78

add a provision indicating that the Commission may toll the response time when there is 

a need to gather further information from the requester.228

142. NERC requests that the appeal rights available to requesters be made available to 

submitting entities to avoid disclosures that might place CEII at risk.229 TAPS asks for 

clarification that when conditions are imposed on a receipt of CEII, appeal rights will be 

granted.230 

Commission Determination

143. APPA and the Trade Associations have not demonstrated a need for the 

Commission to change its practices and use a tiered system of categories of CEII or a 

heightened “need to know” standard for bulk-power system information. The 

Commission will continue to “balance the requestor’s need for the information against 

the sensitivity of the information.”231 The Commission has utilized this 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. However, in some instances,

 228 NERC Comments at 16 (citing 5 U.S.C. 552(a)(6)(B)(ii)).

229 Id. at 18. 

230 TAPS Comments at 14. 

231 Section 388.113(g)(5)(iii). 
Docket Nos. RM16-15-000 and RM15-25-001 79

the Commission has balanced a requester’s asserted need for the information against its 

sensitivity and has determined not to produce certain types of CEII to the requester. The 

Commission will continue this balancing approach under the Final Rule.

144. As noted above, the FAST Act does not require changes to the Commission’s 

existing process for accessing information. The CEII Coordinator will continue to 

evaluate each request individually. In response to Peak’s comments, the Commission 

notes that the current procedures allow academics to obtain CEII, and that the 

Commission does, as appropriate in individual rulemakings, consider whether certain 

categories of information should generally be made available for research.232 The 

Commission is not persuaded that any changes should be made to restrict or expand 

access to CEII by academics. 

145. The Commission also disagrees with deleting the term “other reasons” from 

proposed section 388.113(g)(5)(iv) as there may be other legitimate reasons why the 

Commission would not permit access to certain CEII in particular situations.

146. The Commission is not persuaded that it needs to adopt Peak’s proposed changes 

to the owner-operator provision. An owner-operator has a need to obtain CEII about its 

 232 See, e.g., Reliability Standard for Transmission System Planned Performance 

for Geomagnetic Disturbance Events, 156 FERC ¶ 61,215, at PP 93-95 (2016) 

(determining that geomagnetically induced current monitoring and magnetometer data 

will help facilitate geomagnetic disturbance research and concluding that such data 

typically should not be treated as confidential).
Docket Nos. RM16-15-000 and RM15-25-001 80

own facility. To the extent the owner-operator needs other CEII, it can pursue additional 

information through the regular CEII request process. 

147. As to the comment by Public Interest Organizations, the Final Rule maintains the 

mechanism for interveners to request CEII outside of the CEII process.233 

148. The Commission agrees with MISO’s change to proposed section 388.113(g)(4), 

and amends that provision to include all of the language that currently exists in 

section 388.112(b)(2)(iv) to ensure that if an objection to the disclosure of CEII is filed, 

the information will not be disclosed until directed by the Commission or a decisional 

authority.

149. In response to Peak’s comments, the Commission clarifies that a federal agency in 

receipt of CEII from the Commission must protect that information in the same manner 

as the Commission. That agency will be required to execute an appropriate Agency 

Acknowledgment and Agreement. We clarify that derivative analyses that use or rely on 

CEII, without actually disclosing CEII, do not automatically qualify as CEII unless the 

information provided could reasonably be expected to lead to the disclosure of CEII.234

150. Recognizing that the employment status and circumstances surrounding an 

individual or organization can change, in response to APS’s comment, the Commission 

 233 See section 388.113(g)(4). 

234 See supra P 64.
Docket Nos. RM16-15-000 and RM15-25-001 81

will modify the NDAs to indicate that a recipient of CEII must promptly notify the 

Commission if any changed conditions, such as a change in employment, occur. 

151. Amended section 388.113(g)(5)(v) recognizes that in some instances a requester 

may request CEII multiple times during a calendar year. In response to comments by 

APS and Trade Associations regarding the robustness of the requester verifications, the 

Commission clarifies that each request will be reviewed by balancing the needs of the 

requester against the sensitivity of the requested information. 

152. In response to INGAA’s request, the Commission notes that under the current 

CEII rules, entities may share information that they submitted to the Commission with a 

request for CEII treatment (as opposed to CEII that they received from the Commission) 

directly with other entities, and the Commission will continue to encourage and support 

such a practice. The Commission adopts INGAA’s recommendation that “information 

about rare species of plants and animals” be added to the section 388.113(g)(5)(ix) list of 

items that are not required to be released when the information is inextricably intertwined 

with CEII. 

153. In response to comments by Public Interest Organizations, the Commission 

is not persuaded that additional clarifications regarding timing are necessary. 

Section 388.113(g)(5)(vii) of the amended regulations indicates that the time period for 

responding to CEII requests should mirror the period for responding to FOIA requests. 

In response to APS’s suggestion of a default time period for the Commission to respond 
Docket Nos. RM16-15-000 and RM15-25-001 82

to a request for CEII unless the information is needed sooner, expedited treatment is not 

needed, as a requester may include a timeframe in which it needs the information, and the 

Commission will endeavor to respond in that period. The Commission believes that

NERC’s recommendation to place language concerning tolling in the CEII regulation is 

not necessary, as the time requirement for responses to requesters is not binding and the 

Commission’s practice is to always toll the response period when further information is 

needed. 

154. In response to NERC’s comment regarding appeal rights, the Commission notes 

that the existing CEII appeals process, which provides appeal rights to the requester, has 

been effective and there is no compelling need to extend a right to appeal to anyone other 

than the individual requester. If a submitter believes that its objection to disclosure of its 

CEII under a NDA has not been fully addressed, the submitter may raise that issue in 

district court.235

155. In response to TAPS’s comment, the Commission clarifies that appeal rights apply 

when it imposes any conditions on receipt of CEII.

 235 Because the challenge does not relate to the designation of the information, the 

action would not be under FPA section 215A(d)(11). See supra note 130; see also Cortez 

III Serv. Corp v. NASA, 921 F.Supp. 8, 11 (D.D.C. 1996) (holding, in a “reverse FOIA” 

action, that courts have jurisdiction over claims from parties that a release of their 

information would adversely affect them.”)
Docket Nos. RM16-15-000 and RM15-25-001 83

III. Information Collection Statement

156. The Paperwork Reduction Act and Office of Management and Budget’s (OMB)

implementing regulations require OMB to review and approve certain information 

collection requirements imposed by agency rule.236 This Final Rule does not impose any 

additional information collection requirements. 237 Therefore, the information collection 

regulations do not apply to this Final Rule. 

IV. Environmental Analysis

157. 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.238

158. The Commission has categorically excluded certain actions from this requirement 

as not having a significant effect on the human environment. Included in the exclusion 

are rules that are clarifying, corrective, or procedural, or that do not substantially change 

 236 5 CFR 1320. 

237 The current information collection requirements related to requesting access to 

CEII material are approved by OMB under FERC-603 (OMB Control No. 1902-0197).

238 Regulations Implementing National Environmental Policy Act of 1969, Order 

No. 486, FERC Stats. & Regs. ¶ 30,783 (1987).
Docket Nos. RM16-15-000 and RM15-25-001 84

the effect of the regulations being amended.239 The actions here fall within this 

categorical exclusion in the Commission’s regulations.

V. Regulatory Flexibility Act Certification

159. The Regulatory Flexibility Act of 1980 (RFA) requires rulemakings to contain 

either a description and analysis of the effect that the rule will have on small entities or a 

certification that the rule will not have a significant economic impact on a substantial 

number of small entities.240 Rules that are exempt from the notice and comment 

requirements of section 553(b) of the Administrative Procedure Act are exempt from the 

RFA requirements. The Final Rule concerns rules of agency procedure and, therefore, an 

analysis under the RFA is not required.241

VI. Document Availability

160. 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 the Commission’s Home Page 

(http://www.ferc.gov) and in the Commission’s Public Reference Room during normal 

 239 18 CFR 380.4(a)(2)(ii). 

240 5 U.S.C. 603 (2012).

241 5 U.S.C. 553(b).
Docket Nos. RM16-15-000 and RM15-25-001 85

business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, 

Washington, DC 20426.

161. From the Commission’s Home Page on the Internet, this information is available 

on 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 of this document, excluding the last three 

digits, in the docket number field.

162. User assistance is available for eLibrary and the Commission website during 

normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-

208-3676) or e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at 

(202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room 

at public.referenceroom@ferc.gov.

VII. Effective Date and Congressional Notification

163. These regulations are effective 60 days from the date of publication in the Federal 

Register. The Commission has determined, with the concurrence of the Administrator of 

the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major 

rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness 

Act of 1996. The Commission will submit the Final Rule to both houses of Congress and 

to the General Accountability Office.

List of Subjects in 18 CFR Part 375

Authority delegations (Government agencies); Seals and insignia; Sunshine Act.
Docket Nos. RM16-15-000 and RM15-25-001 86

List of Subjects in 18 CFR Part 388

Confidential business information; Freedom of information.

By the Commission.

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.
Docket Nos. RM16-15-000 and RM15-25-001 87

In consideration of the foregoing, the Commission amends Parts 375 and 388, Chapter I, 

Title 18, Code of Federal Regulations, as follows:

PART 375— THE COMMISSION

1. The authority citation for part 375 continues to read as follows:

Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-

825r, 2601-2645; 42 U.S.C. 7101-7352.

2. In section 375.309, Paragraph (h) is added as follows:

Section 375.309 Delegations to the General Counsel.

* * * * *

(h) Deny or grant, in whole or in part, an appeal of a determination by the CEII 

Coordinator. 

3. In section 375.313, Revising the section heading and paragraphs (a) and (b); Redesignating paragraphs (c) through (e) as paragraphs (d) through (f) and revising newly 

re-designated paragraphs (d) through (f); and adding a new paragraph (c).

Section 375.313 Delegations to the Critical Energy/Electric Infrastructure 

Information (CEII) Coordinator.

* * * * *

(a) Receive and review all requests for CEII as defined in section 388.113(c) of 

this chapter.
Docket Nos. RM16-15-000 and RM15-25-001 88

(b) Make determinations as to whether particular information fits within the

definition of CEII found at section 388.113(c) of this chapter, including designating 

information, as appropriate.

(c) Make determinations that information designated as CEII should no longer be 

so designated when the unauthorized disclosure of the information could no longer be 

used to impair the security or reliability of the bulk-power system or distribution facilities 

or any other form of energy infrastructure.

(d) Make determinations as to whether a particular requester’s need for and ability 

and willingness to protect CEII warrants limited disclosure of the information to the 

requester.

(e) Establish reasonable conditions on the release of CEII.

(f) Release CEII to requesters who satisfy the requirements in paragraph (d) of this 

section and agree in writing to abide by any conditions set forth by the Coordinator 

pursuant to paragraph (e) of this section. 

PART 388— INFORMATION AND REQUESTS

1. The authority citation for part 388 is changed to read as follows:

Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42 U.S.C. 7101-7352; 

16 U.S.C. 824(o-l).

2. In section 388.112, the title is revised, and paragraphs (a), (b)(1), (b)(2)(i), 

(b)(2)(vi), (c)(1), and (d)-(e) are revised to read as follows:
Docket Nos. RM16-15-000 and RM15-25-001 89

Section 388.112 Requests for privileged treatment for documents submitted to the 

Commission

(a) Scope. By following the procedures specified in this section, any person submitting a 

document to the Commission may request privileged treatment for some or all of the 

information contained in a particular document that it claims is exempt from the 

mandatory public disclosure requirements of the Freedom of Information Act, 5 U.S.C. 

552 (FOIA), and should be withheld from public disclosure. For the purposes of the 

Commission's filing requirements, non-CEII subject to an outstanding claim of 

exemption from disclosure under FOIA will be referred to as privileged material. The 

rules governing CEII are contained in 18 CFR 388.113. 

(b) Procedures for filing and obtaining privileged material. (1) General Procedures. 

A person requesting that material be treated as privileged information must include in its 

filing a justification for such treatment in accordance with the filing procedures posted on 

the Commission's Web site at http://www.ferc.gov. A person requesting that a document 

filed with the Commission be treated as privileged in whole or in part must designate the 

document as privileged in making an electronic filing or clearly indicate a request for 

such treatment on a paper filing. The cover page and pages or portions of the document 

containing material for which privileged treatment is claimed should be clearly labeled in 

bold, capital lettering, indicating that it contains privileged or confidential information, as 

appropriate, and marked “DO NOT RELEASE.” The filer also must submit to the 
Docket Nos. RM16-15-000 and RM15-25-001 90

Commission a public version with the information that is claimed to be privileged 

material redacted, to the extent practicable.

(2) Procedures for Proceedings with a Right to Intervene. ***

(i) If a person files material as privileged material in a complaint 

proceeding or other proceeding to which a right to intervention 

exists, that person must include a proposed form of protective 

agreement with the filing, or identify a protective agreement that has 

already been filed in the proceeding that applies to the filed material. 

This requirement does not apply to material submitted in hearing or 

settlement proceedings, or if the only material for which privileged 

treatment is claimed consists of landowner lists or privileged 

information filed under sections 380.12(f) and 380.16(f) of this 

chapter.

*****

(vi) For landowner lists, information filed as privileged under sections 

380.12(f) and 380.16(f), forms filed with the Commission, and other 

documents not covered above, access to this material can be sought 

pursuant to a FOIA request under section 388.108 of this chapter. 

Applicants are not required under paragraph (b)(2)(iv) of this section 
Docket Nos. RM16-15-000 and RM15-25-001 91

to provide intervenors with landowner lists and the other materials 

identified in the previous sentence.

(c) Effect of privilege claim. (1) For documents filed with the Commission:

(i) The documents for which privileged treatment is claimed will be 

maintained in the Commission's document repositories as non-public until 

such time as the Commission may determine that the document is not 

entitled to the treatment sought and is subject to disclosure consistent with 

section 388.108 of this chapter. By treating the documents as nonpublic, 

the Commission is not making a determination on any claim of privilege 

status. The Commission retains the right to make determinations with 

regard to any claim of privilege status, and the discretion to release 

information as necessary to carry out its jurisdictional responsibilities.

(ii) The request for privileged treatment and the public version of the 

document will be made available while the request is pending.

*****

(d) Notification of request and opportunity to comment. When a FOIA requester seeks a 

document for which privilege 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 
Docket Nos. RM16-15-000 and RM15-25-001 92

least five calendar days) in which to comment in writing on the request. A copy of this 

notice will be sent to the requester.

(e) Notification before release. Notice of a decision by the Commission, the Chairman of 

the Commission, the Director, Office of External Affairs, 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, will be 

given to any person claiming that the information is privileged no less than 5 calendar 

days before 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 requester.

*****

3. Revise section 388.113 to read as follows:

Section 388.113 Critical Energy/Electric Infrastructure Information (CEII)

(a) Scope. This section governs the procedures for submitting, designating, handling, 

sharing, and disseminating Critical Energy/Electric Infrastructure Information (CEII) 

submitted to or generated by the Commission. The Commission reserves the right to 

restrict access to previously filed information as well as Commission-generated 

information containing CEII. Nothing in this section limits the ability of any other 

Federal agency to take all necessary steps to protect information within its custody or 

control that is necessary to ensure the safety and security of the electric grid. To the 
Docket Nos. RM16-15-000 and RM15-25-001 93

extent necessary, such agency may consult with the CEII Coordinator regarding the 

treatment or designation of such information.

(b) Purpose. The procedures in this section implement section 215A of the Federal 

Power Act, and provide a comprehensive overview of the manner in which the 

Commission will implement the CEII program.

(c) Definitions. For purposes of this section:

(1) Critical electric infrastructure information means information related to 

critical electric infrastructure, or proposed critical electrical infrastructure, 

generated by or provided to the Commission or other Federal agency other than 

classified national security information, that is designated as critical electric 

infrastructure information by the Commission or the Secretary of the Department 

of Energy pursuant to section 215A(d) of the Federal Power Act. Such term 

includes information that qualifies as critical energy infrastructure information 

under the Commission’s regulations. Critical Electric Infrastructure Information is 

exempt from mandatory disclosure under the Freedom of Information Act, 5 

U.S.C. 552(b)(3) and shall not be made available by any Federal, State, political 

subdivision or tribal authority pursuant to any Federal, State, political subdivision 

or tribal law requiring public disclosure of information or records pursuant to 

section 215A(d)(1)(A) and (B) of the Federal Power Act. 

(2) Critical energy infrastructure information means specific engineering, 
Docket Nos. RM16-15-000 and RM15-25-001 94

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.

(3) Critical electric infrastructure means a system or asset of the bulk-power 

system, whether physical or virtual, the incapacity or destruction of which would 

negatively affect national security, economic security, public health or safety, or 

any combination of such matters. 

(4) Critical infrastructure means existing and proposed systems and assets, 

whether physical or virtual, the incapacity or destruction of which would 

negatively affect security, economic security, public health or safety, or any 

combination of those matters.

(d) Criteria and Procedures for determining what constitutes CEII. The following 

criteria and procedures apply to information labeled as CEII:

(1) For information submitted to the Commission:
Docket Nos. RM16-15-000 and RM15-25-001 95

(i) A person requesting that information submitted to the Commission be 

treated as CEII must include with its submission a justification for such 

treatment in accordance with the filing procedures posted on the 

Commission’s website at http://www.ferc.gov. The justification must

provide how the information, or any portion of the information, qualifies as 

CEII, as the terms are defined in paragraphs (c)(1) and (2) of this section. 

The submission must also include a clear statement of the date the 

information was submitted to the Commission, how long the CEII 

designation should apply to the information and support for the period 

proposed. Failure to provide the justification or other required information 

could result in denial of the designation and release of the information to 

the public. 

(ii) In addition to the justification required by paragraph (d)(1)(i) of this 

section, a person requesting that information submitted to the Commission 

be treated as CEII must clearly label the cover page and pages or portions 

of the information for which CEII treatment is claimed in bold, capital 

lettering, indicating that it contains CEII, as appropriate, and marked “DO 

NOT RELEASE.” The submitter must also segregate those portions of the 

information that contain CEII (or information that reasonably could be 

expected to lead to the disclosure of the CEII) wherever feasible. The
Docket Nos. RM16-15-000 and RM15-25-001 96

submitter must also submit to the Commission a public version with the 

information where CEII is redacted, to the extent practicable. 

(iii) If a person files material as CEII in a complaint proceeding or other 

proceeding to which a right to intervention exists, that person must include 

a proposed form of protective agreement with the filing, or identify a 

protective agreement that has already been filed in the proceeding that 

applies to the filed material.

(iv) The information for which CEII treatment is claimed will be 

maintained in the Commission’s files as non-public until such time as the 

Commission may determine that the information is not entitled to the 

treatment sought. By treating the information as CEII, the Commission is 

not making a determination on any claim of CEII status. The Commission 

retains the right to make determinations with regard to any claim of CEII 

status at any time, and the discretion to release information as necessary to 

carry out its jurisdictional responsibilities. Although unmarked information 

may be eligible for CEII treatment, the Commission will treat unmarked 

information as CEII only if it is properly designated as CEII pursuant to 

Commission regulations.

(v) The CEII Coordinator will evaluate whether the submitted information 

or portions of the information are covered by the definitions in paragraphs 
Docket Nos. RM16-15-000 and RM15-25-001 97

(c)(1) and (2) of this section prior to making a designation as CEII. 

(vi) Subject to the exceptions set forth in section 388.113(f)(5), when a 

CEII requester seeks information for which CEII status has been claimed, 

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

the CEII Coordinator or any other appropriate Commission official will 

notify the person who submitted the information and give the person an 

opportunity (at least five business days) in which to comment in writing on 

the request. A copy of this notice will be sent to the requester. Notice of a 

decision by the Commission, or the CEII Coordinator to make a release of 

CEII, will be given to any person claiming that the information is CEII no 

less than five business days before disclosure. The notice will respond to 

any objections to disclosure from the submitter that are not sustained. 

Where applicable, a copy of this notice will be sent to the CEII requester.

(2) For Commission-generated information: 

(i) After consultation with the Office Director for the office that created the 

information, or the Office Director’s designee, the CEII Coordinator will 

designate Commission-generated information as CEII after determining 

that the information or portions of the information are covered by the 

definitions in paragraphs (c)(1) and (2) of this section. Commissiongenerated CEII shall include clear markings to indicate the information is 
Docket Nos. RM16-15-000 and RM15-25-001 98

CEII and the date of the designation.

(ii) The Commission will segregate non-CEII from Commission-generated 

CEII or information that reasonably could be expected to lead to the 

disclosure of CEII wherever feasible. 

(e) Duration of the CEII designation. All CEII designations will be subject to the 

following conditions:

(1) A designation may last for up to a five-year period, unless re-designated. In 

making a determination as to whether the designation should be extended, the 

CEII Coordinator will take into account information provided in response to 

paragraph (d)(1)(i) of this section, and any other information, as appropriate.

(2) A designation may be removed at any time, in whole or in part, if the 

Commission determines that the unauthorized disclosure of CEII could no longer 

be used to impair the security or reliability of the bulk-power system or 

distribution facilities or any other form of energy infrastructure. 

(3) The Commission will treat CEII or documents marked as CEII as non-public 

after the designation has lapsed until the CEII Coordinator determines to undesignate the information. 

(4) If a CEII designation is removed, the submitter will receive notice and an 

opportunity to comment. The CEII Coordinator will notify the submitter of the 

information and give the submitter an opportunity (at least five business days) in 
Docket Nos. RM16-15-000 and RM15-25-001 99

which to comment in writing prior to the removal of the designation. Notice of a 

removal decision will be given to any submitter claiming that the information is 

CEII no less than five business days before disclosure. The notice will briefly 

explain why the submitter’s objections to the removal of the designation are not 

sustained by the Commission 

(f) Voluntary sharing of CEII. The Commission, taking into account standards of the 

Electric Reliability Organization, will facilitate voluntary sharing of CEII 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. The process will be as follows:

(1) The Director of any Office of the Commission or his designee that wishes to 

voluntarily share CEII shall consult with the CEII Coordinator prior to the Office

Director or his designee making a determination on whether to voluntarily share 

the CEII. 

(2) Consistent with section 388.113(d) of this Chapter, the Commission retains 

the discretion to release information as necessary to carry out its jurisdictional 

responsibilities in facilitating voluntary sharing or, in the case of information 

provided to other federal agencies, the Commission retains the discretion to 
Docket Nos. RM16-15-000 and RM15-25-001 100

release information as necessary for those agencies to carry out their jurisdictional 

responsibilities. 

(3) All entities receiving CEII must execute either a non-disclosure agreement or 

an acknowledgement and agreement. A copy of each agreement will be 

maintained by the Office Director with a copy to the CEII Coordinator. 

(4) When the Commission voluntarily shares CEII pursuant to this subsection, the 

Commission may impose additional restrictions on how the information may be 

used and maintained.

(5) Submitters of CEII shall receive notification of a limited release of CEII no 

less than five business days before disclosure, except in instances where voluntary 

sharing is necessary for law enforcement purposes, to maintain infrastructure 

security, to address potential threats, when notice would not be practicable, and 

where there is an urgent need to quickly disseminate the information. When prior 

notice is not given, the Commission will provide submitters of CEII notice of a 

limited release of the CEII as soon as practicable. 

(g) Accessing CEII. 

(1) An owner/operator of a facility, including employees and officers of the 

owner/operator, may obtain CEII relating to its own facility, excluding 

Commission-generated information except inspection reports/operation reports 

and any information directed to the owner-operators, directly from Commission 
Docket Nos. RM16-15-000 and RM15-25-001 101

staff without going through the procedures outlined in paragraph (g)(5) of this 

section. Non-employee agents of an owner/operator of such facility may obtain 

CEII relating to the owner/operator’s facility in the same manner as 

owner/operators as long as they present written authorization from the 

owner/operator to obtain such information. Notice of such requests must be given 

to the CEII Coordinator, who shall track this information.

(2) 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 (g)(5) of this section. Any Commission 

employee at or above the level of division director or its equivalent may rule on 

requests for access to CEII by a representative of a federal agency. To obtain 

access to CEII, an agency employee must sign an acknowledgement and 

agreement, which states that the agency will protect the CEII in the same manner 

as the Commission and will refer any requests for the information to the 

Commission. Notice of each such request also must be given to the CEII 

Coordinator, who shall track this information.

(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 (g)(5) of 
Docket Nos. RM16-15-000 and RM15-25-001 102

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

property interest in the vicinity of a project.

(4) Any person who is a participant in a proceeding or has filed a motion to 

intervene or notice of intervention in a proceeding may make a written request to 

the filer for a copy of the complete CEII version of the document without 

following the procedures outlined in paragraph (g)(5) of this section. The request 

must include an executed copy of the applicable protective agreement and a 

statement of the person’s right to party or participant status or a copy of the 

person’s motion to intervene or notice of intervention. Any person may file an 

objection to the proposed form of protective agreement. A filer, or any other 

person, may file an objection to disclosure, generally or to a particular person or 

persons who have sought intervention. If no objection to disclosure is filed, the 

filer must provide a copy of the complete, non-public document to the requesting 

person within five business days after receipt of the written request that is 

accompanied by an executed copy of the protective agreement. If an objection to 

disclosure is filed, the filer shall not provide the non-public document to the 

person or class of persons identified in the objection until ordered by the 

Commission or a decisional authority.
Docket Nos. RM16-15-000 and RM15-25-001 103

(5) If any requester not described above in paragraph (g)(1)-(4) of this section has 

a particular need for information designated as CEII, the requester may request the 

information using the following procedures:

(i) File a signed, written request with the Commission’s CEII Coordinator. 

The request must contain the following: 

(a) 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; and the name, address, and telephone 

number of the person or entity on whose behalf the information is 

requested; 

(b) A detailed Statement of Need, which must state: the extent to 

which a particular function is dependent upon access to the information; 

why the function cannot be achieved or performed without access to the 

information; an explanation of whether other information is available to the 

requester that could facilitate the same objective; how long the information 

will be needed; whether or not the information is needed to participate in a 

specific proceeding (with that proceeding identified); and an explanation of 

whether the information is needed expeditiously.

(c) An executed non-disclosure agreement as described in paragraph 

(h)(2) of this section;
Docket Nos. RM16-15-000 and RM15-25-001 104

(d) A signed statement attesting to the accuracy of the information 

provided in the request; and 

(e) 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. 

(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 individuals in the organization that 

have access to the CEII will agree to be bound by a non-disclosure 

agreement that must be executed.

(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 
Docket Nos. RM16-15-000 and RM15-25-001 105

CEII should be denied for other reasons, this determination may be 

appealed to the General Counsel pursuant to section 388.110 of this 

Chapter. The General Counsel will decide whether the information is 

properly classified as CEII, which by definition is exempt from release

under FOIA, and 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 the remainder of that calendar year. Such a 

requester is not required to provide detailed information about himself 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 non-disclosure agreement will 

apply to all subsequent releases of CEII. 

(vi) An organization that is granted access to CEII pursuant to paragraph 

(g)(5)(ii) of this section may seek to add additional individuals to the nondisclosure agreement within one (1) year of the date of the initial CEII 

request. Such an organization must provide the names of the added 

individuals to the CEII Coordinator and certify that notice of each added 
Docket Nos. RM16-15-000 and RM15-25-001 106

individual 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 business days of notifying the CEII Coordinator and the 

submitter concerning the addition of any newly added individuals, the CEII 

Coordinator will issue a standard notice accepting the addition of these 

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. If an 

organization that is granted access to CEII pursuant to paragraph (g)(5)(ii) 

of this section wants to add new individuals to its non-disclosure agreement 

more than one year after the date of its initial CEII request, the organization 

must submit a new CEII request pursuant to paragraph (g)(5)(ii) of this 

section and a new non-disclosure agreement for each new individual added. 

(vii) The CEII Coordinator will attempt to respond to the requester under 

this section according to the timing required for responses under the FOIA 

in section 18 CFR 388.108(c).

(viii) Fees for processing CEII requests will be determined in accordance 

with section 18 CFR 388.109.

(ix) Nothing in this section should be construed as requiring the release of 
Docket Nos. RM16-15-000 and RM15-25-001 107

proprietary information, personally identifiable information, cultural 

resource information, information on rare species of plants and animals, 

and other comparable data protected by statute or any privileged 

information, including information protected by the deliberative process

privilege.

(h) Duty to protect CEII. Unauthorized disclosure of CEII is prohibited.

(1) To ensure that the Commissioners, Commission employees, and Commission 

contractors protect CEII from unauthorized disclosure, internal controls will 

describe the handling, marking, and security controls for CEII. 

(2) Any individual who requests information pursuant to paragraph (g)(5) of this 

section must sign and execute a non-disclosure agreement, which indicates the 

individual's willingness to adhere to limitations on the use and disclosure of the 

information requested. The non-disclosure agreement will, at a minimum, require 

the following: CEII will only be used for the purpose for which it was requested; 

CEII may only be discussed with authorized recipients; CEII must be kept in a 

secure place in a manner that would prevent unauthorized access; CEII must be 

destroyed or returned to the Commission upon request; the Commission may audit 

the recipient’s compliance with the non-disclosure agreement; CEII provided 

pursuant to the agreement is not subject to release under either FOIA or Sunshine 

Laws; a recipient is obligated to protect the CEII even after a designation has 
Docket Nos. RM16-15-000 and RM15-25-001 108

lapsed until the CEII Coordinator determines the information should no longer be 

designated as CEII under subsection (e)(2); and a recipient is required to promptly

report all unauthorized disclosures of CEII to the Commission.

(i) Sanctions. Any officers, employees, or agents of the Commission who knowingly 

and willfully disclose CEII in a manner that is not authorized under this section will be 

subject to appropriate sanctions, such as removal from the federal service, or possible 

referral for criminal prosecution. Commissioners who knowingly and willfully disclose 

CEII without authorization may be referred to the Department of Energy Inspector 

General. The Commission will take responsibility for investigating and, as necessary, 

imposing sanctions on its employees and agents.

(j) Administrative Appeals of CEII determinations. 

(1) Submitters who receive a determination that the Commission intends to 

remove a CEII designation may appeal that determination. The submitter must 

file notice of its intent to appeal that determination within five business days of the 

determination. The notice of intent to file an appeal must be sent to the General 

Counsel, with a copy to the CEII Coordinator. A statement in support of the 

notice of appeal must be submitted to the General Counsel within 20 business days 

of the date of the determination. The appeal will be considered received upon 

receipt of the statement in support of the notice of appeal.

(2) Individuals who receive a determination denying a request for the release of 
Docket Nos. RM16-15-000 and RM15-25-001 109

CEII, in whole or in part, or a determination denying a request to change the 

designation of CEII may appeal such determinations. Such appeals must be 

submitted to the General Counsel within 20 business days of the date of the 

determination. 

(3) The Commission’s General Counsel or the General Counsel’s designee will 

make a determination with respect to any appeal within 20 business days after the 

receipt of the appeal. If, on appeal, the General Counsel or the General Counsel’s 

designee upholds the determination in whole or in part, then the General Counsel 

or the General Counsel’s designee will notify the person submitting the appeal of 

the availability of judicial review. 

(4) The time limits prescribed for the General Counsel or his designee to act on an 

appeal may be extended pursuant to section 388.110(b)(1).

(5) Prior to seeking judicial review in federal district court pursuant to section 

215A(d)(11) of the Federal Power Act, a person who received a determination 

from the Commission concerning a CEII designation must first appeal the 

determination to the Commission’s General Counsel.
Docket Nos. RM16-15-000 and RM15-25-001 110

Note: The following appendix will not appear in the Code of Federal Regulations

Appendix

Initial Comments

Abbreviation Commenter

APPA American Public Power Association 

CEA Canadian Electricity Association 

HRC Hydropower Reform Coalition

INGAA Interstate Natural Gas Association of America 

ITC International Transmission Company d/b/a

ITCTransmission, Michigan Electric Company, LLC, 

ITC Midwest LLC, and ITC Great Plains LLC 

Joint RTOs ISO New England, Inc. and Southwest Power Pool, 

Inc. 

MISO Midcontinent Independent System Operator, Inc.

NRECA National Rural Electric Cooperative Association 

NERC North American Electric Reliability Corporation 

NRC Nuclear Regulatory Commission

Peak Peak Reliability 

Powerex Powerex Corp. 

Public Interest Organizations Alliance for Affordable Energy, Citizens Action 

Coalition of Indiana, Inc., Citizens Utility Board, Fresh 

Energy, Great Plains Institute, Natural Resources 

Defense Council, Sierra Club Environmental Law 

Program, Southern Environmental Law Center, 

Sustainable FERC Project, Union of Concerned 

Scientists, Utah Clean Energy, VoeSolar, Western Grid 

Group, Western Resource Advocates, and Wind on the 

Wires

Tacoma Power City of Tacoma, Department of Public Utilities, Light 

Division d.b.a. Tacoma Power (Tacoma Power)

Tallgrass Pipelines Rockies Express Pipeline LLC, Tallgrass Interstate 

Gas, Transmission, LLC, and Trailblazer Pipeline 

Company LLC

TAPS Transmission Access Policy Study Group 

Trade Associations Edison Electric Institute, Electric Power Supply 

Association, and Electricity Consumers Resource 
Docket Nos. RM16-15-000 and RM15-25-001 111

Council 

WIRAB Western Interconnection Regional Advisory Board 

Reply Comments

Abbreviation Commenter

PJM PJM Interconnection, LLC 

Joint RTOs ISO New England, Inc. and Southwest Power Pool, 

Inc.