[Federal Register Volume 72, Number 71 (Friday, April 13, 2007)]
[Rules and Regulations]
[Pages 18572-18574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7005]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 388

[Docket No. RM06-24-001; Order No. 683-A]


Critical Energy Infrastructure Information

Issued April 9, 2007.
AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Final Rule, order on rehearing.

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SUMMARY: On September 21, 2006, the Commission issued a final rule that 
clarified the definition of Critical Energy Infrastructure Information 
(CEII), required requesters of CEII to submit executed non-disclosure 
agreements with their requests, and provided that the notice and 
opportunity to comment on a CEII request would be combined with the 
notice of release of information. The Commission is denying the 
petition for rehearing filed by Edison Electric Institute.

DATES: Effective Date: This order denying rehearing of the final rule 
will become effective May 14, 2007.

FOR FURTHER INFORMATION CONTACT: Teresina A. Stasko, Office of the 
General Counsel, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426, Phone (202) 502-8317.

SUPPLEMENTARY INFORMATION:

    Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. 
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.

Order on Rehearing

(Issued April 9, 2007)
    1. This order addresses the request for rehearing filed by Edison 
Electric Institute (EEI) of the Commission's September 21, 2006 Order 
in this proceeding (September 21 Order), a final rule that clarified 
the definition of Critical Energy Infrastructure Information (CEII), 
required requesters of CEII to submit executed non-disclosure 
agreements (NDA) with their requests, and provided that the notice and 
opportunity to comment on a CEII request would be combined with the 
notice of release of information. Critical Energy Infrastructure 
Information, Order No. 683.\1\ This order denies EEI's request for 
rehearing for the reasons explained below.\2\
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    \1\ 71 FR 58,273 (October 3, 2006), FERC Stats. & Regs. ] 31,228 
(2006).
    \2\ The California Coastal Commission, California Energy 
Commission, California Electricity Oversight Board, and California 
State Lands Commission (collectively the California State Agencies) 
filed a request for reconsideration. Although labeled as a ``Request 
for Reconsideration,'' the request is actually an untimely request 
for rehearing. As explained below, the Commission has long held that 
it lacks authority to consider requests for rehearing filed more 
than 30 days after issuance of a Commission order.
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Background

    2. The Commission began its efforts with respect to CEII shortly 
after the attacks of September 11, 2001. See Statement of Policy on 
Treatment of Previously Public Documents.\3\ The Commission issued a 
final rule on CEII on February 21, 2003, defining CEII to include 
information about proposed facilities, as well as facilities already 
licensed or certificated by the Commission, and to exclude information 
that simply identified the location of the infrastructure. See Order 
No. 630.\4\ The final rule also established the position of CEII 
Coordinator. The Commission issued Order No. 630-A on July 23, 2003,\5\ 
which made several minor procedural changes and clarifications, added a 
reference in the regulation regarding the filing of Non-Internet Public 
(NIP) information, a term first described in Order No. 630,\6\ and 
added a commitment to review the effectiveness of the new process after 
six months.
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    \3\ 66 FR 52917 (Oct. 18, 2001), 97 FERC ] 61,130 (2001).
    \4\ 68 FR 9857, FERC Stats. & Regs. ] 31,140 (Mar. 3, 2003).
    \5\ 68 FR 46456, FERC Stats. & Regs. ] 31,147 (Aug. 6, 2003)
    \6\ NIP information includes location maps and diagrams that do 
not rise to the level of CEII. Order No. 630 provided the following 
examples of NIP: ``(1) USGS 7.5 minute topographic maps showing the 
location of pipelines, dams, or other aboveground facilities, (2) 
alignment sheets showing the location of pipeline and aboveground 
facilities, right of way dimensions, and extra work areas; (3) 
drawings showing site or project boundaries, footprints, building 
locations and reservoir extent; and (4) general location maps.'' 68 
FR 9857, FERC Stats. & Regs. ] 31,140.
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    3. Simultaneous with the issuance of the September 21 Order, the 
Commission issued a notice of proposed rulemaking (NOPR) in Docket No. 
RM06-23-000.\7\ In the September 21 NOPR, the Commission sought 
comments on the revisions to its regulations to: (1) Allow an annual 
certification for repeat requesters; (2) allow an authorized 
representative of an organization to execute an NDA on behalf of the 
organization's employees; (3) include a fee provision; (4) respond to 
CEII requests by letters from the CEII Coordinator rather than by 
Commission orders with rights to rehearing; and (5) allow landowners 
access to alignment sheets for the routes across or in the vicinity of 
their properties. The September 21 NOPR also proposed to narrow the 
scope of information on Commission forms that are defined as containing 
CEII and proposed to abolish the NIP designation.
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    \7\ 71 FR 58,325 (October 3, 2006), FERC Stats. & Regs. ] 32,607 
(2006) (September 21 NOPR).
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Requests for Rehearing

    4. On October 23, 2006, EEI filed a timely request for rehearing of 
the September 21 Order, and requested that the Commission revoke its 
September 21 Order and reissue it as a new notice of proposed 
rulemaking to be considered with the September 21 NOPR. EEI alleged 
that the Commission did not provide the due process protections of the 
Administrative

[[Page 18573]]

Procedure Act (APA), 5 U.S.C. 553, because the September 21 Order: (1) 
Modified the definition of CEII without proper notice and comment; (2) 
combined the notice and opportunity to comment with the notice of 
release; and (3) permitted the CEII Coordinator to enforce the CEII 
regulations by rejecting applications if information is mislabeled or 
legal justifications for CEII are not provided.
    5. On November 2, 2006, the California State Agencies filed an 
untimely request for reconsideration. The California State Agencies 
requested that the CEII Coordinator allow flexibility to allow state 
agencies to execute non-disclosure agreements which depart from the 
standard state agency NDA found on the Commission's Web site. The 
California State Agencies further requested that the Commission amend 
its CEII regulations to exclude state agencies from the requirement of 
showing a need for access in their CEII requests, and to require the 
CEII Coordinator to grant state agencies access to CEII upon receiving 
a completed CEII request, including an executed NDA in a format 
acceptable to the Commission.

Discussion

Procedural Issues
    6. The California State Agencies' request for reconsideration is 
equivalent to an untimely request for rehearing.\8\ Rule 713 of the 
Commission's Rules of Practice and Procedure requires that requests for 
rehearing be made within thirty days of the date of the order.\9\ Rule 
713(a)(1) provides that the rule is applicable ``to any request for 
rehearing of a final Commission decision or other final order.''\10\ 
The final date for filing a request for rehearing of the September 21 
Order was October 23, 2006,\11\ a deadline not met by the California 
State Agencies. However, the California State Agencies also filed their 
``Comments and Request for Reconsideration'' in response to the 
September 21 NOPR. Their comments address issues raised in the 
September 21 NOPR and will be considered in that proceeding.
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    \8\ We decline to treat the request for rehearing as a request 
for reconsideration. Granting such a request would in effect treat 
the rehearing request as if it had been timely filed. See Midwest 
Independent Transmission System Operator, Inc., 112 FERC ] 61,211 at 
P 10 (2005); Golden Valley Power Company, 114 FERC ] 61,212 at P 6 
(2006).
    \9\ 18 CFR 385.713 (2006).
    \10\ 18 CFR 385.713(a)(1) (2006).
    \11\ The expiration of the thirty-day period, October 21, 2006, 
fell on a Saturday; therefore, the filing deadline for requests for 
rehearing was October 23, 2006, the next business day.
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EEI's Request for Rehearing

Clarification of the Definition of CEII
    7. EEI's contention that any modification to the definition of CEII 
is substantive is without merit. The APA provides exemptions to its 
notice and comment rulemaking requirements. See 5 U.S.C. 553(b)(A). 
Specifically, interpretative rules, general statements of policy, or 
rules of agency organization, procedure, or practice are exempt. Id. As 
the Commission's September 21 Order interprets its definition of CEII, 
it is not a substantive change requiring notice and comment. The 
Commission may interpret and clarify its regulations without making a 
substantive change. Courts have found that agency rules explaining 
terms in statutes and regulations are interpretive.\12\ Courts have 
also held that rules that merely restate existing duties, rather than 
creating new duties, are interpretive.\13\
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    \12\ See, e.g., American Postal Workers Union v. United States 
Postal Service, 707 F.2d 548, 559-60 (D.C. Cir. 1983) (finding that 
the postal service's new method of calculating retirement benefits 
was interpretive because adoption of the method turned on the 
agency's understanding of the statutory term ``average pay''), cert. 
denied, 465 U.S. 1100 (1984).
    \13\ See, e.g., General Motors Corp. v. Ruckelshaus, 742 F.2d 
1561, 1565 (D.C. Cir. 1984) (finding interpretive a rule that 
restated consistent agency practice based on the Environmental 
Protection Agency's understanding of the recall provision of the 
Clean Air Act), cert. denied, 471 U.S. 1074 (1985).
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    8. A clarification ``does not * * * become an amendment merely 
because it supplies crisper and more detailed lines than the authority 
being interpreted.''\14\ Previously, the regulation stated that 
``Critical energy infrastructure information means information about 
proposed or existing critical infrastructure that: (i) Relates to the 
production, generation, transportation, transmission, or distribution 
of energy; (ii) Could be useful to a person in planning an attack on 
critical infrastructure; (iii) Is exempt from mandatory disclosure 
under the Freedom of Information Act, 5 U.S.C. 552; and (iv) Does not 
simply give the location of the critical infrastructure.'' 18 CFR 
388.113(c)(1). The September 21 Order explained that ``information 
about proposed or existing critical infrastructure'' means ``specific 
engineering, vulnerability, or detailed design information about 
proposed or existing critical infrastructure.''\15\ The clarification 
explained the existing term ``information.'' The clarification serves 
to advise the public of the Commission's construction of the term 
information as defined in Order No. 630. The September 21 Order also 
clarified the meaning of ``relates to the production, generation, 
transportation, transmission, or distribution of energy.'' The 
September 21 Order advised the public that it is the ``details about 
the production, generation, transportation, transmission, or 
distribution of energy'' that the Commission deems CEII.\16\ These 
explanations and clarifications are merely interpretations and notice 
and comment are unnecessary.
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    \14\ American Mining Congress v. Mine Safety & Health Admin., 
995 F.2d 1106, 1112 (D.C. Cir. 1993).
    \15\ September 21 Order at P 6.
    \16\ Id.
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Combination of the Notice and Opportunity to Comment With the Notice of 
Release

    9. EEI is mistaken that the combination of the notice and 
opportunity to comment with the notice of release eliminates due 
process rights of CEII submitters or reduces the notice from ten days 
to five days. Pursuant to 18 CFR 388.112, any person submitting 
documents to the Commission may request special treatment of some or 
all of the information found in the documents. Paragraph (d) of this 
section provides the standards for notifying the submitter of a request 
for the information, and states:

    When a FOIA or CEII requester seeks a document for which 
privilege or CEII status has been claimed, or when the Commission 
itself is considering release of such information, the Commission 
official who will decide whether to release the information will 
notify the person who submitted the document and give the person an 
opportunity (at least five calendar days) in which to comment in 
writing on the request. A copy of this notice will be sent to the 
requester.

    Paragraph (e) of this section provides the standards for 
notification prior to release of documents for which privileged 
treatment was requested, and states:

    Notice of a decision by the Director, Office of External 
Affairs, the Chairman of the Commission, the General Counsel or 
General Counsel's designee, a presiding officer in a proceeding 
under part 385 of this chapter, or any other appropriate official to 
deny a claim of privilege in whole or in part, or to make a limited 
release of CEII, will be given to any person claiming that 
information is privileged or CEII no less than five days before 
public disclosure. The notice will briefly explain why the person's 
objections to disclosure are not sustained by the Commission. A copy 
of this notice will be sent to the FOIA or CEII requester.

    Thus, when the submitter of information requests confidential or 
CEII treatment of that information and opposes its release, the 
Commission

[[Page 18574]]

will, by regulation, notify the submitter at least five days prior to 
disclosure. This allows the submitter an opportunity to respond, as 
well as to pursue an injunction against release in district court.
    10. The Commission's regulations do not require separation of the 
opportunity to comment and notice of release. However, it was the 
Commission's practice in processing CEII requests to issue these 
notifications separately. As the Commission explained in its September 
21 Order, combining the two will increase the efficiency of processing 
CEII requests. See September 21 Order at P 9-10. But those opposing 
release will continue to have ten days of notice before the information 
is released.
    11. Contrary to EEI's assertion, there is no inconsistency in the 
application of the rules to CEII and FOIA requests. The combined notice 
that the Commission sends pursuant to the September 21 Order explains 
that a submitter has an opportunity (5-day minimum) to submit timely 
comments opposing release. See 18 CFR 388.112(d). It further explains 
that if the submitter provides timely comments, he or she will be 
notified in advance of the release of any information in accordance 
with 18 CFR 388.112(e) (another 5-day minimum). In other words, if the 
submitter provides comments, a second notice of release follows the 
first (a total of 10-day minimum). In the event timely comments 
opposing release are not received, the combined notice constitutes 
notice of release of the specified document in accordance with 18 CFR 
388.112(e), subject to an appropriate non-disclosure agreement. The 
combined opportunity to comment and notice of release does not reduce 
the submitter's opportunity to respond or to pursue judicial relief.

Requirements To Comply With Procedural Requirements

    12. The September 21 Order states that an application will be 
rejected in its entirety if information is mislabeled as CEII or a 
legal justification for CEII is not provided. The purpose of that rule 
is to dissuade applicants from carelessly using the CEII designation 
because such misuse prevents interested parties and other deserving 
members of the public from accessing needed information in the 
timeliest manner. As the Commission said in the September 21 NOPR, the 
``Commission retains its concern for CEII filing abuses and will take 
action against applicants or parties who knowingly misfile information 
as CEII.'' \17\ The Commission disagrees with EEI's assertion that 
rejection is unacceptably harsh. Applications are frequently rejected 
for failure to comply with procedural requirements. See, e.g., ANR 
Pipeline Co., 103 FERC ] 61,261 at P 8 (2003) (rejecting filing without 
prejudice to filing a fully supported application in accordance with 
the Commission's regulations). In instances in which documents are 
rejected for filing, the rejection is usually without prejudice and no 
substantive rights are lost. Id. The application must merely be refiled 
in accordance with the procedural requirements. That is not harsh, but 
rather promotes the proper use of the CEII designation.
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    \17\ September 21 NOPR at P 17.
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    The Commission orders:
    EEI's request for rehearing is denied as described above. The 
California State Agencies' request for reconsideration is rejected in 
this docket as untimely filed.

    By the Commission.
 Philis J. Posey,
Acting Secretary.
 [FR Doc. E7-7005 Filed 4-12-07; 8:45 am]
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