[Federal Register Volume 67, Number 15 (Wednesday, January 23, 2002)]
[Proposed Rules]
[Pages 3129-3135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1614]



Federal Energy Regulatory Commission

18 CFR Part 388

[Docket Nos. RM02-4-000 and PL02-1-000]

Notice of Inquiry and Guidance for Filings in the Interim

January 16, 2002.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of Inquiry.


SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
considering whether to revise its rules to address public availability 
of critical energy infrastructure information. The Commission issued a 
policy statement in Docket No. PL02-1-000 on October 11, 2001 (66 FR 
52917, October 18, 2001), removing from easy public access previously 
public documents that detail the specifications of energy facilities 
licensed or certificated by the Commission. The policy statement 
directed requesters seeking this information to follow the Freedom of 
Information Act procedures found at 18 CFR 388.108. This Notice of 
Inquiry will assist the Commission in determining what changes, if any, 
should be made to its regulations to restrict unfettered general public 
access to critical energy infrastructure information, but still permit 
those with a need for the information to obtain it in an efficient 

EFFECTIVE DATES: Responses must be submitted on or before March 11, 
2002. Requests for copies of the non-public appendix must be filed on 
or before February 7, 2002.

ADDRESSES: Office of the Secretary, Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426.

FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the 
General Counsel, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426, (202) 208-0457.


I. Introduction

    The Federal Energy Regulatory Commission is initiating an inquiry 
into the appropriate treatment of previously public documents in the 
aftermath of the September 11, 2001 terrorist attacks on the United 
States of America. Accordingly, this Notice sets forth the Commission's 
general views on how it intends to treat those documents, and asks 
specific questions on the scope and implications of maintaining the 
confidentiality of certain documents that previously had been made 
public but removed from easy public access under the Policy Statement 
issued in Docket No. PL02-1-000 on October 11, 2001 (Policy Statement). 
See 97 FERC para. 61,030. The major matter that this Notice addresses 
is the reconciliation of the Commission's regulatory responsibilities 
under its enabling statutes and Federal environmental laws and the need 
to protect the safety and well being of American citizens from attacks 
on our nation's energy infrastructure.
    By definition, this Notice does not propose any specific changes to 
the Commission's regulations, but it does reflect what the Commission 
may consider doing in the future. As an initial matter, the Commission 
believes that the process under the Freedom of Information Act, 5 
U.S.C. 552 (FOIA), which the Policy Statement established as the means 
for requesting previously public documents in the short run, is not 
well suited in the long run for handling most requests for this 
critical energy infrastructure information (CEII).\1\ Therefore, the 
questions posed in the Notice are premised on the Commission's 
processing most CEII requests outside of the FOIA procedures. The 
Commission also believes that the scope of the Policy Statement should 
probably be maintained, viz., that limiting access to CEII should be 
confined to certificated, licensed, or constructed projects. Put 
another way, the Commission currently intends that information 
contained in or related to proposed projects should be available as 
before October 11, 2001. (Care would have to be taken to the extent the 
information detailed existing facilities.) Otherwise, the 
implementation of the environmental laws may be impeded or the 
processing of certificate or license applications may be unduly 
complicated. Nevertheless, the Notice asks specific questions as to the 
correctness of this approach. The Commission emphasizes that its 
intention here is to address how the public with a need for certain 
documents obtains access to those documents, not whether they should 
have access to them.

    \1\ Assuming that much of the information identified as CEII 
will be exempt from mandatory disclosure under FOIA, using FOIA as 
the exclusive mechanism for determining release would mean that 
people with a need for the information might be denied access to 
exempt information. In any event, under FOIA, the agency may not 
consider a requester's particular need for the information. 
Moreover, once release is made to one requester under FOIA, release 
is generally avaialble to all requesters, and if information is 
released pursuant to FOIA, the agency may not restrict the 
recipient's use or dissemination of that information. Therefore, if 
the Commission wishes to make otherwise exempt information available 
to a requester based on the requester's need for the information, or 
wishes to limit the recipient's use and dissemination of the 
information, it must do so outside of the confines of the FOIA.

    As a separate matter, the Commission is using this opportunity to 
provide guidance on making filings with the Commission to the companies 
whose facilities could be the targets of terrorist attacks. Between now 
and the effective date of a final decision in Docket No. RM02-4-000, 
these companies may seek confidential treatment of filings or parts of 
filings which in their opinion contain CEII. For this purpose, they are 
directed to follow the procedures in 18 CFR 388.112, and also clearly 
note ``PL02-1'' on the first page of the document.

II. Background

    The September 11, 2001 terrorist attacks prompted the Commission to 
issue a policy statement on October 11, 2001, in PL02-1-000, addressing 
the treatment of previously public documents. See 97 FERC 
para.61,030.\2\ The

[[Page 3130]]

Commission announced there that it would no longer make available to 
the public through its Internet site, the Records and Information 
Management System (RIMS), or the Public Reference Room, documents such 
as oversized maps that detail the specifications of energy facilities 
already licensed or certificated under Part I of the Federal Power Act, 
16 U.S.C. 719a, et seq., and section 7 (c) of the Natural Gas Act, 15 
U.S.C. 717f(c), respectively. Rather, anyone requesting such documents 
was directed to follow the procedures set forth in 18 CFR 388.108 
(Requests for Commission records not available through the Public 
Reference Room (FOIA Requests)). The Policy Statement also instructed 
staff to report back to the Commission within 90 days on the impact of 
this newly announced policy on the agency's business. This Notice 
reflects staff's report.

    \2\ Shortly after the attacks, the Commission issued another 
policy statement in Docket No. PL01-6-000, in which it provided 
guidance to regulated companies regarding extraordinary expenditures 
necessary to safeguard national energy supplies. See 96 FERC 
para.61,299 (2001). The Commission recognized there that electric, 
gas, and oil companies may need to adopt new procedures, update 
existing procedures, and install facilities to further safeguard 
their systems, and that these efforts might result in extraordinary 
expenditures. The Commission assured these companies that it would 
give its highest priority to processing any filing made for the 
recovery of such expenditures.

    The Commission was not alone in its reaction to protecting 
sensitive information. The Associated Press reported on October 12, 
2001, that ``Federal agencies are scrutinizing their Web sites and 
removing any information they believe terrorists might use to plot 
attacks against the nation. Federal agencies have been reviewing their 
sites in the wake of the terrorist attacks.'' The report referred to 
action by the Nuclear Regulatory Commission, the Environmental 
Protection Agency, the Centers for Disease Control and Prevention, and 
the United States Department of Transportation Office of Pipeline 
Safety. Along the same lines, the United States Department of Justice 
pointed out a short time later:

    In light of those events [of September 11, 2001], and the 
possibilities for further terrorist activity in their aftermath, 
federal agencies are concerned with the need to protect critical 
systems, facilities, stockpiles, and other assets from security 
breaches and harm--and in some instances from their potential use as 
weapons of mass destruction in and of themselves. Such protection 
efforts, of course, must at the same time include the protection of 
any agency information that could enable someone to succeed in 
causing the feared harm.
www.usdoj.gov/oip/foiapost/2001foiapost19.htm.\3\ Subsequently, in 
early November, the Department of Energy Office of Environment, 
Safety and Health blocked all access to environmental assessments 
and environmental impact statements and related documents published 
on the Department's National Environmental Policy Act Web site.

    \3\ This statement accompanied the issuance of a FOIA memorandum 
to the heads of all Federal departments and agencies from Attorney 
General John Ashcroft on October 12, 2001. This memorandum 
emphasized the Bush Adminstration's commitment to full compliance 
with FOIA as an important means of maintaining an open and 
accountable system of government. At the same time, it recognized 
the importance of protecting the sensitive institutional, 
commercial, and personal interests that can be implicated in 
government records--such as the need to safeguard national security, 
to maintain law enforcement effectiveness, to respect business 
confidentiality, to protect internal agency deliberations, and to 
preserve personal privacy.

    Since September 11, 2001, our country fortunately has not 
experienced any attacks as devastating as the ones experienced on 
that day. On at least three occasions, however, the Attorney General 
of the United States put the country on high alert because of 
threatened terrorist attacks.\4\ The Federal Bureau of Investigation 
has likewise warned oil and gas companies throughout the United 
States and Canada to be on the highest alert. Under these 
circumstances, the Commission finds that the concerns about threats 
to the energy infrastructure over which it has regulatory 
responsibilities still exist, and that the Commission must proceed 
to examine its policy and any related regulations on making 
information about that infrastructure available to the public. The 
Commission emphasizes, however, that in no way is it proposing to 
prevent or otherwise impede the public from having access to 
information it needs in order to respond to applications and other 
proposals from the regulated companies. This Notice is not intended 
to address whether the public with such a need has access to certain 
documents; rather, it is intended to address how the public with 
such a need will have access to certain documents.

    \4\ Since September 11, 2001, the United States government has 
issued a total of four warnings--three official warnings and one 
unofficial warning. On October 11, 2001, Attorney General John 
Ashcroft issued the first official warning of possible attacks. He 
again issued an official warning on October 29, 2001. On December 3, 
2001, Tom Ridge, Director of Homeland Security, issued the third 
official warning because Attorney General Ashcroft was out of town. 
This third warning, which was to be in effect throughout the holiday 
season, was extended on January 2, 2002 to last through March 11, 
2002. As most relevant here, in late November 2001, Attorney General 
Ashcroft warned of an uncorroborated report of a possible terrorist 
threat against natural gas pipelines. Accordingly, the American 
Petroleum Institute, the lead industry group coordinating with the 
FBI and Energy Department on security matters, issued a warning to 
oil and gas companies.

III. Implementation of Policy Statement

    A brief overview of the Commission's experience since issuance 
of the Policy Statement may help to understand the instant task 
better, because this Notice is understandably informed by that 
experience. To implement the policy, the Commission's staff first 
disabled RIMS access to all oversized documents, which frequently 
contain detailed infrastructure information and also removed them 
from the Public Reference Room. Staff next identified and disabled 
or denied access to other types of documents dealing with licensed 
hydropower projects, certificated natural gas pipelines, and 
electric transmission lines that appeared to include critical 
infrastructure information. This effort, which was undertaken as 
cautiously and methodically as possible, affected tens of thousands 
of documents.
    As of January 3, 2002, the treatment of previously public 
documents as non-public generated twenty-five FOIA requests. Most of 
these requests are pending, as the time for responding is still 
running or has been tolled because the Commission sent letters to 
the submitters of the information for their views on the 
applicability of the FOIA exemptions. See CFR 385.112(d). In one 
instance, however, the FOIA request was mooted, because the 
Commission provided the document to the requester outside the FOIA 
process. The requester was a pipeline applicant who sought a non-
published environmental assessment that was referenced in the order 
issuing the applicant a certificate. As the applicant, the requester 
was a unique member of the public, who had to have the environmental 
assessment to decide whether to accept the certificate, and, if so, 
how to comply with its terms. Moreover, a company whose facilities 
were intended to be protected from terrorist attacks by the Policy 
Statement could fairly be assumed to treat any sensitive information 
contained in the environmental assessment in the same way that the 
Commission would, that is, to protect it from getting into the hands 
of terrorists. Therefore, the company's request was handled outside 
the FOIA process.\5\

    \5\ Two other FOIA requests were likewise mooted. One involved a 
request from a law firm representing a regulated company, which no 
longer had a particular map filed previously by its client. This 
request was handled outside of FOIA as it concerned a request from a 
company for its own material. The other request was made by an 
intervener in a certificate proceeding. In this case, the pipeline 
applicant provided the information directly to the requester.

    As a separate matter, since the issuance of the Policy 
Statement, the Commission has also entertained a request from a 
company to remove what in its view was critical infrastructure 
information which had not been removed from public access as part of 
the staff's efforts to implement the policy on previously public 
documents. Williston Basin Interstate Pipeline Company filed revised 
tariff sheets on November 30, 2001, to remove the system maps from 
its tariff, and requested a waiver of 18 CFR 154.106 to do so.\6\ 
The Commission denied Williston Basin's specific proposal as 
unnecessary because it construed the proposal as a request for 
confidential treatment of those particular sheets in its tariff, and 
granted that request. See Williston Basin Interstate Pipeline 
Company, 97 FERC para. 61,369 (2001). The Commission reasoned that 
this action would allow it to have the information needed to fulfill 
its regulatory obligations, while at the same time satisfying 
Williston Basin's desire

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to keep the maps out of the public domain for safety purposes. Id. 
at __, slip op. at 2. The Commission further took into account that 
customers or prospective customers of Williston Basin will be able 
to obtain a copy of the map directly from the pipeline company. Id.

    \6\ Section 154.106 requires each natural gas pipeline to 
display a system map in its tariff and to update its maps annually 
to reflect any major changes in facilities.

IV. Questions for Response

A. Legal Authority to Protect CEII

    To reiterate, the Commission's goal is not to alter in any way 
the public's right to access documents that they need to participate 
in a meaningful way in Commission proceedings. For this reason, for 
example, the proposed location of new gas pipeline facilities would 
not be restricted from public access or involvement. Likewise, the 
Commission does not want to prevent the general public, including 
the press, from accessing information to understand better how the 
Commission operates. The Commission must balance these goals against 
legitimate concerns about the integrity of the nation's energy 
infrastructure. For this purpose, the Commission believes it is 
necessary to devise procedures for the public to access CEII. To do 
so, the Commission starts with the premise that any information it 
collects will generally be publicly available. That is consistent 
with the scheme of its enabling statutes, which are grounded in 
public participation in reviewing companies' rates and terms and 
conditions of service and in processing their certificate and 
license applications. See, e.g., section 4(c) of the Natural Gas 
Act, 15 U.S.C. 717c; section 205 of the Federal Power Act, 16 U.S.C. 
824d. Nonetheless, the Commission's enabling statutes do not appear 
to prohibit the Commission from devising procedures to control the 
public's access to CEII. On the other hand, the Commission's 
regulations or policies may foreclose such procedures to the extent 
they require certain CEII to be made public and foreclose their 
being treated confidentially.
    For example, there may be an anomaly in the Commission's 
maintaining the confidentiality of CEII, such as oversized, detailed 
system maps (which show not only the proposed facilities, but their 
relationship to existing facilities), but still requiring companies 
to maintain a public file of all relevant documents at a suitable 
location or locations outside of FERC. See 18 CFR 157.10. Similarly, 
the Commission requires pipeline applicants to make a good faith 
effort to place materials in a location that provides maximum 
accessibility to the public, and to make available complete copies 
of their applications in accessible central locations in each county 
throughout the project area, either in paper or electronic format, 
within three business days of the date a filing is issued a docket 
number. See 18 CFR 157.10(b)(2) and (c).
    Under these circumstances, as a threshold matter, the Commission 
must decide whether any of its current regulations or policies need 
to be revised in order to implement changes in the way the public 
accesses CEII.\7\ To assist this inquiry, the Commission is 
attaching to this Notice, as a non-public appendix, a list of 
previously public documents, which are likely candidates for 
consideration as CEII.\8\ The Commission requests that respondents 
distinguish as much as possible in their answers between the legal 
implications for proposed projects versus operational projects. See 
B.4. below.

    \7\ As separate matter, the Commission is aware of at least six 
pieces of legislation that have been introduced in the First Session 
of the 107th Congress, including S. 1407, S. 1456, S. 1529, S. 1534, 
H.R. 1292, and H.R. 1158. The Commission does not believe, however, 
that it needs a change in its legislative mandate to proceed with 
this Notice. That is not to stay, of course, that it would not 
welcome guidance from the Congress on these matters.
    \8\ The procedures to obtain a copy of the non-public appendix 
are set forth at the end of this Notice in the section entitled 
``Document Availability.''

    Against this backdrop, the Commission seeks responses to the 
following questions:
    1. Are there statutory impediments to protecting CEII under the 
    a. Natural Gas Act, 15 U.S.C. 717, et seq.;
    b. Federal Power Act, 16 U.S.C. 791a, et seq.;
    c. FERC's other enabling statutes;
    d. National Environmental Policy Act, 42 U.S.C. 4321-4370d; or
    e. Substantive environmental laws?
    2. Are there regulatory impediments to protecting CEII?
    a. What changes, if any, are required to the Commission's own 
regulations to enable it to protect CEII adequately?
    b. What changes, if any, are required to the Commission's 
regulations to enable regulated entities to protect CEII?
    c. Are there non-FERC regulations that impair the Commission's 
or the regulated companies' ability to protect CEII adequately?
    d. Do Order Nos. 608 \9\ and 609 \10\ create any impediment if 
the Commission defines CEII to include only information regarding 
licensed or certificated projects?

    \9\ ``Collaborative Procedures for Energy Facility 
Applications,'' Order No. 608, 64 FR 51209 (September 22, 1999); 
FERC Statutes and Regulations, Regulations Preambles July 1996--
December 2000, para. 31,080 (September 15, 1999), order on reh'g, 
Order No. 608-A, 65 FR 65752 (November 2, 2000); FERC Statutes and 
Regulations, Regulations Preambles July 1996-December 2000, para. 
31,110 (October 27, 2000).
    \10\ ``Landowner Notification, Expanded Categorical Exclusions, 
and Other Environmental Filing Requirements,'' Order No. 609, 64 FR 
57374 (October 25, 1999), FERC Statutes and Regulations, Regulations 
Preambles July 1996-December 2000, para. 31,082 (October 13, 1999), 
order on reh'g, Order No. 609-A, 65 FR 15234 (March 22, 2000), FERC 
Statutes and Regulations, Regulations Preambles July 1996-December 
2000, para. 31,095 (March 16, 2000).

B. Definition of Critical Energy Infrastructure Information (CEII)

    A major issue throughout the past three months has been 
identifying information that warrants protection in light of the 
September 11 events. After the issuance of the Policy Statement, the 
Commission removed from ready public access documents ``that detail 
the specifications of energy facilities licensed or certificated 
under part I of the Federal Power Act * * * and section 7(c) of the 
Natural Gas Act. * * *'' Since that time, the Commission has 
recognized that there may be additional information that warrants 
protection as well, for instance, information relating to the 
transmission of electricity. The Commission must develop a workable 
definition of CEII that is broad enough to encompass information 
useful to would-be terrorists in planning a terrorist attack, 
without removing from the public domain information that poses 
little to no risk. The definition will guide submitters of 
information and Commission staff reviewing such submissions in 
determining whether or not the information should be freely 
available to the general public.
    Below is a list of questions that may assist the Commission in 
devising a consistent method of identifying CEII.
    1. What are the primary considerations that the Commission 
should use to determine which information should be protected? 
Should the Commission only protect information relating to certain 
critical components of the infrastructure? If so, how does it 
identify such components? If information is removed only for those 
identified facilities, will that highlight critical facilities for 
would-be terrorists?
    2. Should CEII include all information related to locations of 
existing facilities? Does the scale of the map make a difference? 
Should the Commission protect location information only where a map 
provides exact location of facilities (e.g., longitude and latitude, 
or map coordinates)? What if the information is otherwise publicly 
available from another source, e.g., a commercial map?
    3. Aside from location, what additional types of information may 
warrant protection (i.e., removal from existing systems where 
possible, or redaction from future filings)?
    a. Diameter, throughput and pressure information relating to gas 
    b. System constraints for both gas and electric transmission 
    c. Supply lines to critical facilities (hospitals, military 
installations, government facilities, etc.)?
    d. Number of retail customers served by a particular portion of 
the infrastructure?
    e. Redundancy or lack of redundancy in the system?
    f. Compressor station layouts and layouts of other above-ground 
    g. Location of critical components, e.g. shut off valves?
    h. Inundation information and other similar information that 
details areas likely to be affected by a failure in the system?
    i. Vulnerability/risk assessments and other information that may 
provide insights into vulnerabilities in the infrastructure?
    j. Emergency Action Plans or other documents detailing steps to 
be taken in the event of an emergency involving a facility?
    4. Should the restrictions be limited to existing projects or 
should they be extended to proposed projects or extensions?
    a. What are the legal impediments and practical difficulties 
associated with extending the restrictions to pending projects?
    b. How should the Commission handle hydropower relicensing 
situations where there is a need for public participation, and

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also a risk that an existing facility could be endangered by release 
of certain information?
    c. How should the Commission handle situations where documents 
relating to a yet-to-be-approved project contain CEII relating to 
existing facilities? Can those portions be removed and still permit 
effective public participation in the process? Is there an effective 
way to limit access to those with a need for the information?
    d. If CEII related to proposed projects is not restricted during 
the licensing/certificate stage, at what point in the process should 
the information no longer be readily available to the public?
    (1) Once the Commission issues the license/certificate?
    (2) When a pipeline applicant accepts the certificate or when it 
commences construction?
    (3) When a hydropower licensee or exemptee commences 
    (4) After construction is completed, or any operational portion 
is completed?
    (5) When rehearing period or appeal period has run or all 
rehearings or appeals have been decided?
    C. Requester's Status and Need for the Information
    At present, the Commission is considering an approach that would 
strive to process most requests for CEII outside of the FOIA 
process.\11\ As part of this approach, requesters may be subject to 
different procedures and entitled to more or less information, 
depending on their status and their need for the information. The 
Commission has identified the following categories of potential 
requesters: (1) Federal government entities, including Congress; (2) 
state governments; (3) local governments; (4) Native American 
Tribes; (5) submitters of CEII; (6) parties seeking CEII relating to 
their own project or facility; (7) representatives of submitters or 
parties seeking information relating to their client's own project 
or facility; (8) interveners; (9) those who have sought, but have 
not yet been granted, intervener status; (10) landowners and 
landowner groups; (11) media representatives; (12) third-party 
requesters who want the information for a business purpose such as 
selling a product or service or advising clients of potential 
business opportunities; and (13) members of the general public. 
Below are some issues that must be considered if the Commission 
adopts an approach that takes a requester's status and need into 

    \11\ The Commission tentatively plans to add a new section to 18 
CFR part 388, following the FOIA regulations.

    1. Should Federal requesters have ready access to CEII? If a 
Federal entity is given access where others involved in a case are 
not, are there ex parte concerns?
    2. Should submitters of information be entitled to ready access 
to CEII regarding their own facilities? What about facility owners? 
Should it matter whether the information was submitted by the entity 
or created by the Commission?
    3. Should interveners be afforded ready access to CEII? Should 
persons who have filed motions to intervene that have not been 
denied be granted the same access as interveners? If the Commission 
denies access to these requesters, has it effectively denied them an 
opportunity to participate in the matter? If the Commission grants 
ready access to CEII to interveners, do its intervener rules at 18 
CFR 385.214 need to be revised to require a greater demonstration of 
interest than currently is required?
    4. Should state governments be given ready access to CEII? There 
is statutory authority for the Commission to share information with 
state commissions in both the Natural Gas Act and the Federal Power 
Act. If a state government is given access where others are not, are 
there ex parte concerns?
    5. Should affected landowners who have not intervened be granted 
access to CEII? If so, should those landowners be defined using the 
parameters found in existing regulations, such as 18 CFR 
4.32(a)(3)(i)(A) and 157.6(d)(2)? If the current regulations contain 
no obligation to keep the landowner lists updated, how can the 
Commission later verify that a requester is still an affected 
landowner since property can be bought and sold at any time? If the 
Commission cannot craft a satisfactory method of verifying 
landowners' status, should non-intervener landowners follow the FOIA 
procedures in 18 CFR 388.108?
    6. How should the Commission handle CEII requests from members 
of the press since it is highly unlikely that members of the press 
would be willing to abide by a non-disclosure agreement? If media 
requests cannot be handled under alternative procedures, should 
media representatives be directed to follow the FOIA procedures in 
18 CFR 388.108?
    7. How should the Commission treat other third party requesters 
that want the information for business purposes, e.g., consulting 
firms that may want the information to sell a product or service or 
to advise clients on potential business opportunities? Under those 
circumstances, the third party would be unlikely to enter into a 
non-disclosure agreement. If this is the case, should they be 
directed to follow the FOIA procedures in 18 CFR 388.108?
    8. How should the Commission treat requests from a party in one 
proceeding to obtain information filed at the Commission by someone 
who is not a party in that particular proceeding?

D. Verification and Access Issues

    If the Commission adopts a system where the identity of the 
requester, the status of the requester, and the requester's need for 
the information are relevant, the Commission must have a method of 
verifying the identity and status of the requester. The Commission 
currently uses an ID and password to verify the identify of filers 
who make electronic filings using the Internet. It may be possible 
to use a similar system to verify identities of requesters of CEII.
    Another issue is whether the form of the request should be 
relevant in deciding to grant or deny access to CEII. Internet 
access seems to provide the broadest, easiest access to documents. 
Written requests for documents to be mailed to a street address 
provide an increased level of security because the recipient may be 
traceable through the address. Similarly, requiring a requester to 
appear in person at the Public Reference Room with identification 
provides some level of security as well. Questions relating to 
verification and access are listed below.
    1. What type of system should the Commission use to verify that 
a requester is who he or she purports to be? Options include, among 
others, use of IDs and passwords, use of personal identification 
numbers, and use of digital signatures.
    2. How should the Commission verify that a particular individual 
is authorized to request documents on behalf of an organization? 
Should the organization provide a list of authorized individuals to 
the Commission, perhaps as part of its intervention? Should the 
Commission issue the entity an ID and password and leave it up to 
the organization to determine which of its employees can have the 
    3. Should the level of verification required depend on how the 
requester is seeking to obtain the information? For example, should 
a higher level of verification be required when someone is accessing 
documents over the Internet than when they are filing a written 
request for the documents?
    4. If the Commission eliminated all Internet access to CEII, 
would that be sufficient protection?

E. Non-disclosure Agreements and Limitations on Use of Information

    One reason that the FOIA is not a useful vehicle for handling 
requests for CEII is that it does not permit the Commission to place 
any restrictions on the recipient's use or dissemination of the 
information. The Commission believes that disclosure of CEII should 
be restricted to those who have a legitimate need for the 
information, and that recipients should be under an obligation to 
protect the information from disclosure. The Commission is 
considering the extent to which non-disclosure agreements and 
agreements limiting the use of the CEII are appropriate, especially 
where the requester has an existing obligation or interest in 
protecting the CEII. In addition, the Commission is considering a 
recipient's obligation to dispose of CEII once it is no longer 
    1. Should a facility applicant, owner, or operator be required 
to sign a non-disclosure agreement in order to access CEII regarding 
its own project, or is its interest in protecting the project 
sufficient to ensure that it will safeguard the information and only 
share it to the extent necessary?
    2. Should representatives of facility owners, applicants, and 
operators (contractors, insurers, etc.) be required to sign non-
disclosure agreements or use limitations as a prerequisite to 
receiving CEII? Should the Commission rely on the owner, applicant 
or operator to impose its own conditions on its representative's use 
and dissemination of the information?
    3. Is it preferable for the Commission to direct the requester 
to negotiate with the submitter for the information wherever 
possible, or does it make more sense for the Commission to control 
the disclosure of the information?

[[Page 3133]]

    4. Is it necessary to have another Federal agency representative 
sign a non-disclosure agreement in order to access CEII, or does 44 
U.S.C. 3510(b) afford adequate assurance that the information will 
be handled appropriately? \12\ Is there a need to restrict a Federal 
agency's ability to use CEII outside of the particular Commission 

    \12\ 44 U.S.C. 3510(b) states that when one Federal agency 
receives information from another Federal agency, the employees of 
the recipient agency are subject to all provisions of law relating 
to unauthorized release of the information that apply to employees 
of their own agency, as well as those of the agency that supplied 
the information.

    5. Should state or local agencies be required to sign non-
disclosure agreements as a prerequisite to receiving CEII? Is there 
a need to restrict the state or local agency's ability to use CEII 
outside of the particular Commission proceeding?
    6. Should Native American Tribal representatives be required to 
sign non-disclosure agreements as a prerequisite to receiving CEII? 
Should Tribes' use of CEII be limited to the particular Commission 
    7. Should interveners and those who have sought intervener 
status be required to sign non-disclosure agreements and use 
limitations as a prerequisite to receiving CEII?
    8. Will media representatives sign non-disclosure agreements and 
use limitations? If not, should the Commission disseminate CEII to 
media requesters?
    9. Will third party requesters who are seeking the information 
to sell a product or service or advise clients be willing to sign 
non-disclosure agreements and use limitations? If not, should the 
Commission disseminate CEII to such requesters?

F. Applicability of FOIA Exemptions

    The Commission's intended approach on handling CEII is premised 
on the belief that CEII is exempt from disclosure under the Freedom 
of Information Act (FOIA), 5 U.S.C. 552, which gives any person the 
right to obtain Commission records unless the records are protected 
by an exemption or exclusion. Generally, records released to one 
requester under the FOIA must be released to all. Additionally, as 
discussed above, the FOIA does not allow restrictions to be placed 
on the recipient's use or dissemination of information released 
under the FOIA. The procedures contemplated above are intended to 
provide a process whereby the Commission can, on a limited basis, 
share otherwise exempt information with those with a legitimate need 
for the information. The fact that information is exempt from 
disclosure under FOIA usually will not prevent those with a need for 
the information from getting it, perhaps with limitations on use and 
disclosure of the information.
    There are nine exemptions and three law enforcement record 
exclusions under the FOIA.\13\ In order to protect CEII from 
unlimited disclosure to anyone who requests it, the Commission must 
determine that the information is entitled to an exemption or is 
excluded from the FOIA. It is highly unlikely that an exclusion 
would apply to CEII. Of the nine exemptions, the Commission believes 
that the exemptions that are most likely to apply to CEII are 
Exemptions 2, 4, and 7(F). Exemption 2 protects from disclosure, 
documents ``related solely to the internal personnel rules and 
practices of an agency.'' 5 U.S.C. 552(b)(2). Attorney General John 
Ashcroft's October 12, 2001 memorandum to heads of departments and 
agencies states that ``[a]ny agency assessment of, or statement 
regarding, the vulnerability of such a critical asset should be 
protected pursuant to Exemption 2,'' and continues that ``a wide 
range of information can be withheld under Exemption 2's 
`circumvention' aspect.'' Exemption 4 covers ``trade secrets and 
commercial or financial information obtained from a person and 
privileged or confidential.'' 5 U.S.C. 552(b)(4). Exemption 7(F) 
exempts ``records or information compiled for law enforcement 
purposes, but only to the extent that the production of such law 
enforcement records or information * * * could reasonably be 
expected to endanger the life or physical safety of any 
individual.'' 5 U.S.C. 552(b)(7)(F). Case law has recognized that 
this may cover civil and administrative law enforcement as well as 
criminal law enforcement. Below is a list of issues that relate to 
the applicability of FOIA protection to CEII.

    \13\ Records that fall under an exclusion are not considered 
subject to FOIA, enabling an agency to state that there are no 
documents responsive to the FOIA request.

    1. What types of documents are likely to contain CEII that would 
be exempt under Exemption 2?
    2. Do regulated entities consider CEII to be exempt from 
disclosure under FOIA Exemption 4 (``trade secrets and commercial or 
financial information obtained from a person and privileged or 
    3. Can regulated entities articulate likely competitive harm 
associated with the release of all or some categories of CEII?
    4. If the Commission seeks to protect CEII as exempt from 
disclosure to the general public under FOIA Exemption 4, will the 
Trade Secrets Act, 18 U.S.C. 1905, limit the Commission's ability to 
make disclosure to select groups (e.g. interveners) that agree to 
limit use and dissemination of such information?
    5. What types of documents containing CEII are compiled by the 
Commission for law enforcement purposes that could reasonably be 
expected to endanger the life or physical safety of individuals?

G. Submission of CEII to the Commission

    The Commission must also determine what direction to give filers 
on how to identify and submit CEII in future filings. The Commission 
currently has provisions in 18 CFR 388.112 that specify hard copy 
and electronic media filing requirements for information for which 
privileged treatment is sought. At the present time, the Commission 
is not accepting Internet filing of any documents that require 
privileged or confidential treatment. See 18 CFR 385.2003(c)(3). We 
assume that at the time the Commission is prepared to accept such 
information over the Internet that CEII information will be included 
as well.
    Generally, the rules in 18 CFR 388.112 require a filer to submit 
an unredacted, non-public version of a document as well as a 
redacted, public version of the same document. The disadvantage to 
the Commission of this approach is that it takes up more file or 
disk space because there often is significant overlap between the 
two documents. An alternative approach would be to permit filers to 
submit any CEII portions of their document as a separate non-public 
appendix or attachment to their public, non-redacted filing. This 
approach may be workable where there are only a few portions of a 
document that contain CEII, but seems less workable where CEII 
appears throughout a document. In that case, trying to get the full 
import of the document would be difficult because the reader would 
have to continually switch between the public filing and the non-
public attachment.
    1. Should filers submit CEII using the process in 18 CFR 
388.112, i.e., submit a redacted public version and an unredacted 
non-public version?
    2. Should filers be permitted or required to submit CEII as a 
separate non-public appendix or attachment to a public, non-redacted 
    3. Should the Commission leave it to the filer's discretion 
which method to use to distinguish CEII from the public portions of 
the document?
    4. What are the burdens, if any, to filers to any of the various 
approaches for segregating CEII from public information?

H. Challenges to CEII Status of a Document

    Another issue is how to handle disputes with respect to the 
determination of whether a document contains CEII. Under the 
existing regulation at 18 CFR 388.112(d), a submitter is given an 
opportunity to explain why the document is entitled to non-public 
treatment. In the event that the Commission determines to release 
some or all of the information for which privileged treatment is 
sought, the submitter is notified prior to release as provided for 
in 18 CFR 388.112(e).
    1. Are the procedures in Sec. 388.112 effective for handling 
challenges to the CEII status of a document?
    2. If a FOIA request is filed pursuant to 18 CFR 388.108, should 
the filer or submitter be given an opportunity to explain why the 
document is entitled to non-public treatment as provided for in 18 
CFR 388.112 (d)?
    3. If the Commission disagrees with the submitter's claim that 
the information is CEII, should the Commission provide notification 
prior to release as provided for in 18 CFR 388.112(e)?
    4. Is a different process called for where there is no FOIA 
request filed, for instance where a Federal agency requests access 
to the information? What should the process be?
    5. Is a different process called for where the Commission on its 
own initiative determines that the information is not entitled to 
CEII status? What should the process be?

I. Ex Parte Issues

    The Administrative Procedures Act and the Commission's Rule 
2201, 18 CFR 385.2201, restrict the Commission's ability to transmit 
or receive CEII off the record if it is relevant to the merits of a 
contested on-the-record

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proceeding pending before the Commission. As identified below, 
issues may arise as to whether certain arrangements for sharing non-
public CEII violate the ex parte rules.
    1. As long as the Commission is willing to provide CEII to all 
participants who are willing to abide by use and disclosure 
restrictions, is there any ex parte concern?
    2. Is it possible to share CEII with some entities (Federal 
agencies, for instance), and not share the same information with 
others (interveners, for instance)? Are there situations where this 
might be necessary? Should the entity receiving the information be 
required to agree not to intervene or file comments in the docket, 
thereby negating the possibility of the CEII being used to attempt 
to influence the outcome in the matter?

V. Guidance for Filings in the Interim

    As noted, the Commission is using this opportunity to provide 
guidance to the companies whose facilities could be the targets of 
terrorist attacks with respect to the approach they may use in 
making filings with the Commission. Between now and the effective 
date of a final decision in Docket No. RM02-4, these companies may 
seek confidential treatment of filings or parts of filings which, in 
their opinion, contain critical energy infrastructure information 
(CEII). Granted, this Notice is intended to initiate the public 
debate as to what CEII means for the purpose of the Commission's 
regulatory responsibilities, so this guidance may seem to be jumping 
ahead of that debate. But in the interim, the Commission believes 
that the public will be better protected if companies whose existing 
facilities and operations are potentially in harm's way have the 
discretion to seek protection of information which, in their 
opinion, could increase the risk for those facilities and 
operations. For that purpose, companies are directed to follow the 
procedures in 18 CFR 388.112, and also clearly note ``PL02-1'' on 
the first page of the document.
    The Commission recognizes that as a result of this guidance 
companies may seek confidential treatment of documents or parts of 
documents that would otherwise be readily available to all members 
of the public, either as a matter of practice or as a matter of law 
(specifically, a Commission regulation). Therefore, companies 
seeking confidential treatment of documents or parts of documents 
must include in their request for such treatment an explanation of 
why they believe the information warrants confidential treatment (as 
required by 18 CFR 385.112) and, if disclosure of the information is 
otherwise required to be public by regulation, they must also seek a 
waiver of the relevant regulation. Axiomatically, the Commission 
cannot by this guidance amend, without notice and comment, any of 
its regulations. As is the practice under 18 CFR 383.112, however, 
the Commission will honor all requests for confidential treatment, 
and make the information public only if someone else seeks the 
information and the Commission finds that information does not fit 
within an exemption under FOIA. Likewise, if the information would 
otherwise be required to be public by regulation, the Commission 
will maintain the non-public status of the information while it 
considers the waiver request, and make the information public only 
if it finds that a waiver is not warranted. Submitters are advised 
that, at present, the Commission is not protecting information 
related to proposed facilities prior to issuance of a certificate or 

VI. Public Comment Procedure

    The Commission invites interested persons to submit written 
responses on the matters and issues discussed in this Notice to be 
adopted, including any related matters or alternative proposals that 
respondents may wish to discuss. Responses are due March 11, 2002. 
Responses may be filed either in paper format or electronically. 
Those filing electronically do not need to make a paper filing.
    To facilitate the Commission's review of the responses, 
respondents are requested to identify each specific question to 
which their response is directed and to correspond the responses to 
the outline in the Notice. Additional issues the respondents wish to 
raise should be identified separately. Respondents should double 
space their responses.
    Responses may be filed on paper or electronically via the 
Internet. Those filing electronically do not need to make a paper 
filing. For paper filings, the original and 14 copies of such 
responses should be submitted to the Office of the Secretary, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington DC 20426 and should refer to Docket Nos. RM02-4-000 and 
    Documents filed electronically via the Internet must be prepared 
in WordPerfect, MS Word, Portable Document Format, or ASCII format. 
To file the document, access the Commission's Web site at 
www.ferc.gov and click on ``Make An E-Filing,'' and then follow the 
instructions for each screen. First time users will have to 
establish a user name and password. The Commission will send an 
automatic acknowledgment to the sender's 
e-Mail address upon receipt of comments. User assistance for 
electronic filing is available at 202-208-0258 or by e-Mail to 
efiling@ferc.fed.us. Responses should not be submitted to the e-Mail 
    Any person who uses the non-public appendix to respond to the 
questions in this Notice are directed to file two versions of the 
responses, a redacted public version and a non-redacted non-public 
version. The redacted version must exclude any reference to the 
particulars of the appendix, and will be made available to the 
public. The non-redacted version will be kept confidential. Persons 
are further directed to note plainly on their responses: 
``Redacted'' and ``Non-Redacted.'' Anyone referencing information 
from the non-public appendix must make a paper filing; the 
Commission currently is not accepting non-public (confidential, 
privileged or protected) filings electronically via the Internet.
    Public versions of responses will be placed in the Commission's 
public files and will be available for inspection in the 
Commission's Public Reference Room at 888 First Street, NE., 
Washington DC 20426, during regular business hours. Additionally, 
all public versions of responses may be viewed, printed, or 
downloaded remotely via the Internet through FERC's Homepage using 
the RIMS link. User assistance for RIMS is available at 202-208-
2222, or by e-Mail to rimsmaster@ferc.fed.us.

VII. Document Availability

    In addition to publishing the full text of this document 
(without the non-public appendix) in the Federal Register, the 
Commission also provides all interested persons an opportunity to 
inspect or copy the contents of this document (without the non-
public appendix) during normal business hours in the Commission's 
Public Reference Room at 888 First Street, NE., Room 2A, Washington, 
DC 20426. (See below for the process to use to obtain a copy of the 
non-public appendix.) Additionally, responses may be viewed and 
printed remotely via the Internet through FERC's Home page (http://www.ferc.gov) and in FERC's Public Reference Room during normal 
business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First 
Street, NE., Room 2A, Washington, DC 20426.
    The Commission's Issuance Posting System (CIPS) provides access 
to the texts of formal documents issued by the Commission from 
November 14, 1994, to the present. CIPS can be accessed via Internet 
through FERC's Home page (http://www.ferc.gov) using the CIPS link 
or the Energy Information Online icon. Documents will be available 
on CIPS in ASCII and Word Perfect 6.1. User assistance is available 
at (202) 208-0874 or e-mail to cips.master@ferc.fed.us.
    The document (without the non-public appendix) is also available 
through the Commission's Records and Information Management System 
(RIMS), an electronic storage and retrieval system of documents 
submitted and issued by the Commission after November 16, 1981. 
Documents from November 1995 to the present can be viewed and 
printed. RIMS is available in the Public Reference Room or remotely 
via the Internet through FERC's Home Page using the RIMS link or 
Energy Information Online icon. User assistance is available at 
(202) 208-2222, or by e-mail to rims.master@ferc.fed.us.
    Finally the complete text of the document (without the non-
public appendix) on diskette in Word Perfect format may be purchased 
from the Commission's copy contractor, RVJ International, Inc., 
which is located in the Public Reference Room at 888 First Street, 
NE., Room 2A, Washington, DC 20426.
    The non-public appendix will be available subject to request and 
signing a non-disclosure statement. Specifically, any person who 
wants a copy of the non-public appendix must file a request for the 
appendix by February 7, 2002 with the Office of the Secretary. This 
request must explain the person's interest in the proceeding. The 
person wanting a copy of the non-public appendix must also sign a 
non-disclosure statement, which will limit the use of the appendix 
to responding to this Notice. Procedurally, the Office of the 
Secretary will transmit all requests for the non-public appendix to 
the Office of the General Counsel, General and Administrative Law, 
which will process the requests

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expeditiously to enable timely responses to this Notice.
    By direction of the Commission.

Linwood A. Watson, Jr.,
Acting Secretary.
[FR Doc. 02-1614 Filed 1-22-02; 8:45 am]