67480 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

1The notice and disclosure procedure works as

follows. Any decisional employee who makes or

receives a prohibited or an exempt off-the-record

communication is obligated promptly to deliver to

the Office of the Secretary (OSEC) a copy of the

communication, if written, or a summary of the

substance of any oral communication. Next, OSEC

places the written communication or summary of

an oral communication in the non-decisional record

(if a prohibited communication) or in the decisional

record (if an exempt communication). Every 14

days OSEC publishes a notice in the Federal

Register identifying both types of communications,

to which parties then have an opportunity to

respond. See 18 CFR 385.2201 (f)–(h).

DEPARTMENT OF ENERGY

Federal Energy Regulatory

Commission

18 CFR Part 385

[Docket No. RM02–5–000; Order No. 623]

Amendment to Rules Governing Offthe-Record Communications; Final

Rule

December 21, 2001.

AGENCY: Federal Energy Regulatory

Commission.

ACTION: Final rule.

SUMMARY: The Federal Energy

Regulatory Commission (Commission) is

revising its regulations governing offthe-record communications. The

revisions ensure that the regulations do

not impede the Commission’s ability to

quickly address issues relating to

national security which may arise

within the context of pending

proceedings and its ability to maintain

the confidentiality of sensitive securityrelated information.

EFFECTIVE DATE: This final rule is

effective December 31, 2001.

FOR FURTHER INFORMATION CONTACT:

Moira Notargiacomo, Office of the

General Counsel, Federal Energy

Regulatory Commission, 888 First

Street, NE., Washington, DC 20426,

Telephone: (202) 208–1079.

Before Commissioners: Pat Wood, III,

Chairman; William L. Massey, Linda

Breathitt, and Nora Mead Brownell.

I. Background

The September 11, 2001 terrorist

attacks have prompted the Commission

to reexamine its rules governing

prohibited off-the-record

communications at 18 CFR 385.2201

(Rule 2201). Specifically, the

Commission has determined that in the

interest of national security, Rule 2201

should be amended so as not to impede

the Commission from immediately

addressing issues related to national

security where that would require

discussions, in particular with other

government entities, off-the-record. The

need to change Rule 2201 recently

became apparent when the Commission

was called upon to assess the national

security implications of certificating an

expansion to and reactivating the

operations of the Cove Point LNG

facilities in Calvert County, Maryland.

See Cove Point LNG Limited

Partnership, 97 FERC ¶ 61,181 (2001). In

that situation, the rule frustrated the

Commission’s ability to talk to persons,

including parties in the case, as quickly

as desired, without violating the

existing prohibition on off-the-record

communications. As a result, the

Commission convened a technical

conference to which it invited all parties

and non-party state and Federal

agencies that share jurisdiction or

regulatory responsibilities over security

matters that could be implicated by the

Commission’s actions in the proceeding.

See 97 FERC ¶ 61,834–35. Subsequently,

a transcript of the conference was

placed in the non-public decisional file

in the case. Access to that transcript was

limited to the parties, on the condition

that they sign a non-disclosure

agreement. See ‘‘Notice to Parties,’’ in

Docket No. CP01–76, et al., issued

November 21, 2001.

II. Discussion

The communications dilemma which

the Commission faced in the Cove Point

proceeding was due in large part to the

current structure of Rule 2201, which

prohibits any off-the-record

communication between a Commission

decisional employee and any person

outside the Commission on the merits of

any issue in a contested on-the-record

proceeding. See 18 CFR 385.2201(b).

Rule 2201 exempts certain off-therecord communications from this

prohibition, subject to disclosure and

notice.1 As relevant here, Rule 2201

exempts an off-the-record

communication from anyone related to

any emergency. See 18 CFR

385.2201(e)(1)(ii). The emergency

exemption, however, was intended to

cover events like earthquakes, floods,

severe weather conditions, fires, or

explosions that damage or threaten to

damage FERC-regulated facilities, i.e.

emergencies affecting a regulated

entity’s ability to deliver energy. See

Regulations Governing Off-the-Record

Communications, Order No. 607, FERC

Stats. & Regs. ¶ 31,079 at 30,885 (Sept.

15, 1999). At that time, neither the

Commission nor anyone commenting on

the proposed rule contemplated the

vulnerability of the nation’s energy

infrastructure to terrorist attacks as part

of the concept of ‘‘emergency’’ in Rule

2201. Indeed, Order No. 607’s

requirement of prompt notice and

disclosure of such off-the-record

communications indicates that the

Commission did not consider that some

of the information could be sensitive. As

a separate matter, Rule 2201 also

exempts, subject to disclosure and

notice, written communications from

non-party members of Congress (See 18

CFR 385.2201(e)(1)(iv)) and any

communications from a non-party

Federal, state, local or Tribal agency

over a matter which the Commission

and the other agency shares jurisdiction

(See 18 CFR 385.2201(e)(1)(v)).

Thus, as currently structured and as

relevant here, Rule 2201 prohibits all

off-the-record communications relating

to emergencies with national security

implications, oral off-the-record

communications with non-party

members of Congress, all off-the-record

communications with State and Federal

agencies with shared responsibilities

and members of Congress who are

parties in a proceeding, and all other

persons, including licensees and

certificate holders and their security

personnel.

The Commission finds that the

current scope of Rule 2201 is inadequate

to enable it to carry out its licensing and

other responsibilities under its organic

statutes, to address possible breaches of

national security through critical

infrastructure vulnerabilities. In

particular, we find that to the extent

such circumstances require us to

communicate with other government

employees or anyone with whom we

deem communication appropriate, we

need to be able to do so without the

restriction of the prohibition against offthe-record communications in Rule

2201. Therefore, we determine that Rule

2201 needs to be amended to treat all

communications involving critical

energy infrastructure matters as exempt

communications, subject to a limited

form of disclosure and notice. As

explained below, while the

communications may be with anyone,

its disclosure will be limited to parties

in a proceeding who sign non-disclosure

statements. In our view, this

amendment to Rule 2201 strikes the

proper balance between maintaining the

fairness of our proceedings and enabling

us to protect sensitive information.

III. Analyses of the Amendments to

Rule 2201

As explained above, in the interests of

national security, we will amend Rule

2201 in two respects. First, we will

expand the exemptions to prohibited

off-the-record communications by

adding a new paragraph (viii) to 18 CFR

385.2201(e)(1), to permit any person to

Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations 67481

2 5 U.S.C. 601–12 (1994). 3 5 U.S.C. 804(3)(C).

discuss off-the-record with the

Commission and its decisional staff

their concerns about any national

security-related issue in a proceeding

regarding a facility regulated by the

Commission or a facility that provides

Commission-regulated services. This

exemption recognizes that the public

interest favors a free flow of information

involving the security of our nation,

especially among Federal employees

with a shared responsibility to protect

our nation.

Second, we will amend the disclosure

requirements under 18 CFR

§ 385.2201(g) by adding a new

paragraph (3), which will treat national

security-related communications as

confidential, unless the Commission

determines that such protection is

unnecessary. Accordingly, this new

paragraph requires that any such

document, or the summary of the

substance of any oral communication,

be submitted to the Secretary and

placed in the relevant non-public

decisional file and made available only

to parties to the proceeding in which the

communications were made, subject to

the parties’ signing a non-disclosure

agreement. Any responses to such offthe-record communications will also be

placed in the non-public decisional file

and held confidential. Should the

Commission determine that the

information is not sensitive national

security information, it will place the

information, if written, or a summary of

it, if oral, in the public record. This

amendment to the disclosure

requirements protects sensitive securityrelated communications so that they do

not compromise public safety. At the

same time, the amendment ensures that

such communications do not undermine

the procedural rights of the parties or

the integrity of the Commission’s

decisional record by allowing the

parties to rebut the information and to

discern the basis of the Commission’s

decision by viewing actual information

obtained through off-the-record

communications with any person and

relied upon by the Commission in

reaching its decision.

IV. Regulatory Flexibility Act

The Regulatory Flexibility Act 2

requires rulemakings either to contain a

description and analysis of the impact

the rules will have on small entities or

a certification that the rule will not have

a substantial economic impact on a

substantial number of small entities.

The Commission certifies promulgating

this rule does not represent a major

Federal action having a significant

economic impact on a substantial

number of small entities. Therefore, no

regulatory flexibility analysis is

required.

V. National Environmental Policy Act

Analysis

The Commission concludes that

promulgating this Final Rule does not

represent a major Federal action having

a significant adverse effect on the

human environment under the

Commission’s regulations implementing

the National Environment Policy Act

(see 18 CFR Part 380). This rule is

procedural in nature and therefore falls

within the categorical exemptions

provided in the Commission’s

regulations. Consequently, neither an

environmental impact statement nor an

environmental assessment is required.

See 18 CFR 380.4(a)(1).

VI. Paperwork Reduction Act

Statement

The Paperwork Reduction Act of 1995

(Pub. L. No. 104–13, 109 Stat. 163

(1995)) and the Office of Management

and Budget’s (OMB’s) regulations (5

CFR Part 1320) require that OMB

approve certain information collection

requirements imposed by agency rule.

However, this rule contains no

information collection requirements and

therefore is not subject to OMB

approval.

VII. Administrative Procedure Act

Administrative Procedure Act (APA),

5 U.S.C. 551, et seq., requires

rulemakings to be published in the

Federal Register. The APA generally

mandates that an opportunity for

comment be provided when an agency

promulgates regulations. Notice and

comment are not required, however,

where a rule relates to (1) agency

personnel or agency organization,

procedure or practice or (2) when the

‘‘agency for good cause finds that notice

and public procedure thereon are

impracticable, unnecessary, or contrary

to the public interest. See 5 U.S.C. 553

(b)(A) and (B). The Commission finds

that notice and comment are

unnecessary for this rulemaking because

the rule relates to Commission’s rules of

practice and procedure. Furthermore,

the September 11 terrorist attacks and

concerns raised regarding the Cove

Point LNG facilities indicate that it

would be contrary to the public interest

to delay implementing regulations

which would protect the country’s

critical infrastructure to give notice and

seek comment.

VIII. Effective Date and Congressional

Notification

The APA generally mandates that

publication or service of a substantive

rule not be made less than 30 days

before its effective date. This waiting

period is not required, however, for

interpretative rules and statements of

policy or as otherwise provided by the

agency for good cause found. For the

same reasons stated above, the

Commission, therefore, finds good cause

in accordance with 5 U.S.C. 553(d)(3) to

make these rules effective upon less

than 30 days’ notice. This Final Rule,

therefore, will be made effective upon

publication in the Federal Register.

The Small Business Regulatory

Enforcement Fairness Act of 1996

requires agencies to report to Congress

on the promulgation of certain final

rules prior to their effective dates. See

5 U.S.C. 801. That reporting

requirement does not apply to this Final

Rule because it does not substantially

affect the rights or obligations of nonagency parties, and therefore falls

within a statutory exception for rules

relating to agency procedures or

practices that do not substantially affect

the rights or obligations of non-agency

parties.3

IX. Availability of Documents

In addition to publishing the full text

of this document in the Federal

Register, the Commission provides all

interested persons an opportunity to

view and/or print the contents of this

document via the Internet through

FERC’s Home Page (http://

www.ferc.fed.us) and in FERC’s Public

Reference Room during normal business

hours (8:30 a.m. to 5:00 p.m. Eastern

time) at 888 First Street, N.E., Room 2A,

Washington, DC 20426.

From FERC’s Home Page on the

Internet, this information is available in

both the Commission Issuance Posting

System (CIPS) and the Records and

Information Management System

(RIMS).

—CIPS provides access to the texts of

formal documents issued by the

Commission since November 14,

1994.

—CIPS can be assessed using the CIPS

link or the Energy Information Online

icon. The full text of this document

will be available on CIPS in ASCII

and WordPerfect 8.0 format for

viewing, printing, and or/

downloading.

—RIMS contains images of documents

submitted to and issued by the

Commission after November 16, 1981.

67482 Federal Register / Vol. 66, No. 250 / Monday, December 31, 2001 / Rules and Regulations

Documents from November 1995 to

the present can be viewed and printed

from FERC’s Home Page using the

RIMS link or the Energy Information

Online icon. Descriptions of

documents back to November 18,

1981, are also available from RIMSon-the-Web; requests for copies of

these and other older documents

should be submitted to the Public

Reference Room.

Users assistance is available for RIMS,

CIPS, and the Website during normal

business hours from our Help Line at

(202) 208–2222 (E-mail to

WebMaster@ferc.fed.us) or the Public

Reference at (202) 208–1371 (E-Mail to

public.referenceroom@ferc.fed.us).

During normal business hours,

documents can also be viewed and/or

printed in FERC’s Public Reference

Room, where RIMS, CIPS, and the FERC

Website are available. User assistance is

also available.

List of Subjects in 18 CFR Part 385

Administrative practice and

procedure, Electric power, Penalties,

Pipelines, and Reporting and

recordkeeping requirements.

By the Commission.

Linwood A. Watson, Jr.,

Acting Secretary.

In consideration of the foregoing, the

Commission amends part 385, Chapter I,

Title 18, Code of Federal Regulations, as

follows.

PART 385—RULES OF PRACTICE AND

PROCEDURE

1. The authority citation continues to

read as follows:

Authority: 5 U.S.C. 551–557; 15 U.S.C.

717–717z, 3301–3432; 16 U.S.C. 791a–825r,

2601–2645; 31 U.S.C. 9701; 42 U.S.C. 7101–

7352; 49 U.S.C. 60502; 49 App. U.S.C. 1–85

(1988).

§ 385.2201 Rules governing off-the-record

communications. (Rule 2201).

* * * * *

2. In § 385.2201 paragraphs (e)(1)(viii)

and (g)(3) are added to read as follows:

(e) Exempt off-the-record

communications. (1) * * *

(viii) An off-the-record

communication from any person related

to any national security-related issue

concerning a facility regulated by the

Commission or a facility that provides

Commission-regulated services.

* * * * *

(g) Disclosure of exempt off-the-record

communications. ***

(3) Any document, or a summary of

the substance of any oral

communications, obtained through an

exempt off-the-record communication

under paragraphs (e)(1)(viii) of this

section, will be submitted promptly to

the Secretary and placed in a non-public

decisional file of the relevant

Commission proceeding and made

available to parties to the proceeding,

subject to their signing a non-disclosure

agreement. Responses will also be

placed in the non-public decisional file

and held confidential. If the

Commission determines that the

communication does not contain

sensitive national security-related

information, it will be placed in the

decisional file.

* * * * *

[FR Doc. 01–32068 Filed 12–28–01; 8:45 am]

BILLING CODE 6717–01–P

DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 122 and 178

[T.D. 02—01]

RIN 1515—AC99

Passenger and Crew Manifests

Required for Passenger Flights in

Foreign Air Transportation to the

United States

AGENCY: U.S. Customs Service,

Department of the Treasury.

ACTION: Interim rule; solicitation of

comments.

SUMMARY: This document amends the

Customs Regulations, on an interim

basis, in order to implement a provision

of the Aviation and Transportation

Security Act which requires that each

air carrier, foreign and domestic,

operating a passenger flight in foreign

air transportation to the United States

electronically transmit to Customs in

advance of arrival a passenger and crew

manifest that contains certain specified

information. The submission of this

information to Customs is required for

purposes of ensuring aviation safety and

protecting national security.

DATES: Interim rule is effective

December 31, 2001. Comments must be

received on or before March 1, 2002.

ADDRESSES: Written comments may be

addressed to and inspected at the

Regulations Branch, Office of

Regulations and Rulings, U.S. Customs

Service, 1300 Pennsylvania Avenue,

NW., 3rd Floor, Washington, DC 20229.

FOR FURTHER INFORMATION CONTACT: For

legal matters: Larry L. Burton, Office of

Regulations and Rulings, 202–927–1287;

For operational matters: James Jeffers,

Office of Field Operations,202–927–

4444.

SUPPLEMENTARY INFORMATION:

Background

On November 19, 2001, the President

signed into law the Aviation and

Transportation Security Act (Act),

Public Law 107–71. Section 115 of that

law amended 49 U.S.C. 44909, to add a

new paragraph (c) in order to provide

that, not later than 60 days after the date

of enactment of the Act, each air carrier,

foreign and domestic, operating a

passenger flight in foreign air

transportation to the United States must

electronically transmit to Customs a

passenger and crew manifest containing

certain information in advance of

arrival. Under this statutory provision,

the transmission of passenger and crew

manifest information will be required

even for flights where the passengers

and crew have already been preinspected or pre-cleared at the foreign

location for admission to the United

States.

Specifically, under 49 U.S.C.

44909(c)(2)(A)-(E), for each passenger

and crew manifest relating to a

passenger flight in foreign air

transportation to the United States, the

following information is required to be

submitted to Customs: The full name of

each passenger and crew member; the

date of birth and citizenship of each

passenger and crew member; the gender

of each passenger and crew member; the

passport number and country of

issuance of the passport of each

passenger and crew member if a

passport is required for travel; and the

United States visa number or resident

alien card number of each passenger

and crew member, as applicable.

In addition, under 49 U.S.C.

44909(c)(2)(F), such other information

concerning passenger and crew

manifests may be required to be

transmitted to Customs, as may be

determined to be reasonably necessary

to ensure aviation safety.

Moreover, the statute provides that

the electronic transmission of a

passenger and crew manifest required

for a covered flight must be received by

Customs in advance of the aircraft

landing in the United States in such

manner, time and form as Customs may

prescribe (49 U.S.C. 44909(c)(4)).

Passenger Manifest; Crew Manifest

This document amends the Customs

Regulations to implement 49 U.S.C.

44909(c)(2)(A)-(E) in a new § 122.49a.

This section requires air carriers, for

each flight subject to the statute, to