
[Federal Register Volume 81, Number 128 (Tuesday, July 5, 2016)]
[Proposed Rules]
[Pages 43557-43567]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14761]



[[Page 43557]]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 375 and 388

[Docket No. RM16-15-000]


Regulations Implementing FAST Act Section 61003--Critical 
Electric Infrastructure Security and Amending Critical Energy 
Infrastructure Information

AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes 
to amend the Commission's regulations to implement provisions of the 
Fixing America's Surface Transportation Act that pertain to the 
designation, protection and sharing of Critical Electric Infrastructure 
Information. Separately, the Commission proposes to amend its 
regulations that pertain to Critical Energy Infrastructure Information.

DATES: Comments are due August 19, 2016.

ADDRESSES: Comments, identified by docket number, may be filed in the 
following ways:
     Electronic Filing through http://www.ferc.gov. Documents 
created electronically using word processing software should be filed 
in native applications or print-to-PDF format and not in a scanned 
format.
     Mail/Hand Delivery: Those unable to file electronically 
may mail or hand-deliver comments to: Federal Energy Regulatory 
Commission, Secretary of the Commission, 888 First Street NE., 
Washington, DC 20426.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Comment 
Procedures Section of this document.

FOR FURTHER INFORMATION CONTACT:
    Nneka Frye, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street NE., Washington, DC 20426, 
(202) 502-6029, Nneka.frye@ferc.gov.
    Marcos Araus, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street NE., Washington, DC 20426, 
(202) 502-8472, marcos.araus@ferc.gov.
    Mark Hershfield, Office of the General Counsel, Federal Energy 
Regulatory Commission, 888 First Street NE., Washington, DC 20426, 
(202) 502-8597, mark.hershfield@ferc.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction

    1. On December 4, 2015, the President signed into law the Fixing 
America's Surface Transportation (FAST) Act.\1\ The FAST Act, inter 
alia, added section 215A to the Federal Power Act (FPA) to improve the 
security and resilience of energy infrastructure in the face of 
emergencies.\2\ The FAST Act directs the Commission to issue 
regulations aimed at securing and sharing sensitive infrastructure 
information. Specifically, FPA section 215A(d)(2) (Designation and 
Sharing of Critical Electric Infrastructure Information) requires the 
Commission to ``promulgate such regulations as necessary to'':
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    \1\ See Fixing America's Surface Transportation, Public Law 114-
94, 129 Stat. 1312 (2015) (to be codified at 16 U.S.C. 824 et seq.) 
(FAST Act).
    \2\ Id. 61,003.
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    (A) establish criteria and procedures to designate information as 
critical electric infrastructure information;
    (B) prohibit the unauthorized disclosure of critical electric 
infrastructure information;
    (C) ensure there are appropriate sanctions in place for 
Commissioners, officers, employees, or agents of the Commission or the 
Department of Energy [DOE] who knowingly and willfully disclose 
critical electric infrastructure information in a manner that is not 
authorized under this section; and
    (D) taking into account standards of the Electric Reliability 
Organization, facilitate voluntary sharing of critical electric 
infrastructure information with, between, and by--(i) Federal, State, 
political subdivision, and tribal authorities; (ii) the Electric 
Reliability Organization; (iii) regional entities; (iv) information 
sharing and analysis centers established pursuant to Presidential 
Decision Directive 63; (v) owners, operators, and users of critical 
electric infrastructure in the United States; and (vi) other entities 
determined appropriate by the Commission.
    2. The Commission proposes to revise 18 CFR 375.313, 388.112, and 
388.113 of the Commission's regulations to implement the requirements 
identified in section 215A(d)(2) of the FPA, as well as other 
provisions included in the FAST Act. The Commission also proposes 
modifications to its existing Critical Energy Infrastructure 
Information process, in part, to comply with the FAST Act. The amended 
process will be referred to as the Critical Energy/Electric 
Infrastructure Information (CEII) process. Thus, these changes are 
intended to comply with the FAST Act as well as improve the overall 
efficiency of the CEII process for information that is submitted to or 
is generated by the Commission.

II. Background

    3. Shortly after the terrorist attacks on September 11, 2001, the 
Commission took steps to protect information that it considered 
Critical Energy Infrastructure Information.\3\ As a preliminary step, 
the Commission removed from its public files and eLibrary document 
retrieval system documents that were likely to contain detailed 
specifications of facilities, and directed the public to use the 
Freedom of Information Act (FOIA) request process to obtain such 
information.\4\ In 2003, the Commission established its Critical Energy 
Infrastructure Information procedures for entities outside of the 
Commission to obtain access to Critical Energy Infrastructure 
Information, stating that such information would typically be exempt 
from disclosure pursuant to FOIA.\5\ In particular, the Commission 
determined that it was important to have a process for individuals with 
a valid or legitimate need to access certain sensitive energy 
infrastructure information.
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    \3\ See Statement of Policy on Treatment of Previously Public 
Documents, 66 FR 52,917 (Oct. 18, 2001), 97 FERC ] 61,030 (2001). A 
large component of what is currently Critical Energy Infrastructure 
Information was previously publicly available prior to September 11, 
2001.
    \4\ The FOIA process is specified in 5 U.S.C. 552 and the 
Commission's regulations at 18 CFR 388.108.
    \5\ Critical Energy Infrastructure Information, Order No. 630, 
68 FR 9,857 (Mar. 3, 2003), FERC Stats. & Regs. ] 31,140 (2003), 
order on reh'g, Order No. 630-A, 68 FR 46,456 (Aug. 6, 2003), FERC 
Stats. & Regs. ] 31,147 (2003).
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    4. The Commission last revised its Critical Energy Infrastructure 
Information rules over eight years ago.\6\ However, the Commission 
indicated that it will revise the Critical Energy Infrastructure 
Information rules based on a continuing review of its application and 
effectiveness.\7\
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    \6\ See Critical Energy Infrastructure Information, Order No. 
702, 72 FR 63,980 (Nov. 14, 2007), FERC Stats. & Regs. ] 31,258 
(2007).
    \7\ For example, in 2014, the Department of Energy Inspector 
General initiated a review of the Commission's controls for 
protecting non-public information. In a report dated January 30, 
2015, the DOE Inspector General recommended, among other things, 
that the Commission take steps to ensure that the Critical Energy 
Infrastructure Information processes to protect and control non-
public information are current and that such policies are 
disseminated and properly implemented. DOE Inspector General, 
Inspection Report: Review of Controls for Protecting Nonpublic 
Information at the Federal Energy Regulatory Commission (Jan. 2015), 
http://energy.gov/sites/prod/files/2015/02/f19/DOE-IG-0933.pdf (DOE 
IG Report).
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    5. Over 7,000 documents are submitted to the Commission's eLibrary

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system as Critical Energy Infrastructure Information each year. The 
vast majority of submissions and Commission-generated information 
relates to hydroelectric projects but also includes information 
regarding natural gas pipeline and electric infrastructure.
    6. The Commission receives approximately 200 requests for Critical 
Energy Infrastructure Information a year. Requests are typically 
submitted by public utilities, gas pipelines, Liquefied Natural Gas 
(LNG) facilities, hydroelectric developers, academics, landowners, 
public interest groups, researchers, renewable energy organizations, 
consultants, and Federal agencies.
    7. The Commission's current Critical Energy Infrastructure 
Information rules provide a means for entities to obtain Critical 
Energy Infrastructure Information while ensuring that it is handled in 
an appropriate and secure manner. The new requirements in section 
215A(d) also ensure that Critical Electric Infrastructure Information, 
which as described below includes Critical Energy Infrastructure 
Information, can be appropriately shared while also being adequately 
protected. Thus, the Commission proposes to augment its existing 
Critical Energy Infrastructure Information process to comply with 
section 215A(d)(2) and to make other changes described in this NOPR. 
The Commission proposes to have a single process that would address 
submitting, designating, handling, sharing, and disseminating CEII that 
is submitted to or generated by the Commission. The proposed 
regulations will govern how the Commission and its employees implement 
the provisions of the FAST Act.

III. Revisions To Implement the FAST Act

A. Relocating References to CEII From Section 388.112 to Section 
388.113

    8. The Commission proposes to transfer provisions contained in 
section 388.112 that are applicable to Critical Energy Infrastructure 
Information to amended section 388.113. This transfer would include 
notice and filing requirements. As a result of this change, amended 
section 388.112 would apply only to information designated as 
privileged and all of the Commission's CEII procedures will be in 
section 388.113.

B. Scope, Purpose, and Definitions

    9. The Commission's current Critical Energy Infrastructure 
Information process is designed to limit the distribution of sensitive 
infrastructure information to those individuals with a need to know in 
order to avoid having sensitive information fall into the hands of 
those who may use it to attack the nation's infrastructure. Section 
388.113(c) of the Commission's regulations defines Critical Energy 
Infrastructure Information as:

specific engineering, vulnerability, or detailed design information 
about proposed or existing critical infrastructure that:
(i) Relates details about the production, generation, 
transportation, transmission, or distribution of energy;
(ii) Could be useful to a person in planning an attack on critical 
infrastructure;
(iii) Is exempt from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552; and
(iv) Does not simply give the general location of the critical 
infrastructure.

    10. To augment the current Critical Energy Infrastructure 
Information process to comply with FPA section 215A(d), the Commission 
proposes that the scope and purpose of its regulations be changed to 
reflect the requirements of the FAST Act. Specifically, the Commission 
proposes to amend section 388.113(a) to indicate that the section 
governs the procedures for submitting, designating, handling, sharing, 
and disseminating CEII submitted to or generated by the Commission. 
Moreover, the Commission proposes to amend section 388.113(b) to 
indicate that the purpose of section 388.113 is to provide an overview 
of the Commission's CEII procedures.
    11. Section 215A(a)(3) of the FPA introduces the new term 
``Critical Electric Infrastructure Information:''

information related to critical electric infrastructure, or proposed 
critical electrical infrastructure, generated by or provided to the 
Commission or other Federal agency, other than classified national 
security information . . . Such term includes information that 
qualifies as critical energy infrastructure information under the 
Commission's regulations.

As indicated above, the Commission's current procedures for Critical 
Energy Infrastructure Information apply to information ``about the 
production, generation, transportation, transmission, or distribution 
of energy.'' Thus, the FAST Act defines ``Critical Electric 
Infrastructure Information'' to include not only information regarding 
the Bulk-Power System but also information regarding other energy 
infrastructure (i.e., gas pipelines, LNG, oil, and hydroelectric 
infrastructure) to the extent such information qualifies as Critical 
Energy Infrastructure Information under the Commission's current 
regulations.
    12. Accordingly, the Commission proposes to revise section 
388.113(c) (Definitions) of the Commission's regulations to add the new 
statutory term Critical Electric Infrastructure Information, as 
referenced above. The Commission also proposes to add to the 
regulations the term Critical Electric Infrastructure, which is defined 
in FPA section 215A(a)(3) as ``a system or asset of the bulk-power 
system, whether physical or virtual, the incapacity or destruction of 
which would negatively affect national security, economic security, 
public health or safety, or any combination of such matters.''
    13. The Commission proposes to refer to the information under the 
new regulations as Critical Energy/Electric Infrastructure Information, 
and to use the abbreviation ``CEII'' for this term.\8\ By referring to 
the information only as Critical Electric Infrastructure Information, 
the public, especially those that do not interact with the Commission 
on a regular basis, may assume that the revised CEII regulations only 
cover information regarding electric infrastructure and not also 
information about other energy infrastructure. By using the term 
Critical Energy/Electric Infrastructure Information, the Commission 
clearly conveys to the public that the Commission's revised CEII 
procedures cover more than just electric infrastructure.
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    \8\ The abbreviation will be used except where appropriate to 
address any distinction between the Commission's current regulations 
and the terms of the FAST Act.
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    14. The Commission complies with section 215A(d) by incorporating 
the term Critical Electric Infrastructure Information into its 
regulations as set forth in the statute and treating it as Congress 
intended. In addition, subsuming Critical Energy Infrastructure 
Information into the term Critical Electric Infrastructure Information 
will allow the Commission to have a unitary process for handling CEII 
and, thereby, avoid any confusion that could result from multiple 
processes for different types of critical infrastructure information. 
Avoiding such confusion should better facilitate sharing of CEII as 
well as help prevent unauthorized disclosures of CEII, which we see as 
the principal goals of section 215A(d).
    15. Section 215A(d)(1)(A) of the FPA states that Critical Electric 
Infrastructure Information ``shall be exempt from disclosure under 
[(FOIA)] section 552(b)(3).'' \9\ Accordingly, the Commission proposes 
to amend its regulations to specify that CEII is

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exempt from disclosure under FOIA pursuant to section 
215A(d)(1)(A).\10\
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    \9\ See 5 U.S.C. 552(b)(3) (protects information ``specifically 
exempted from disclosure by statute'').
    \10\ The Commission has relied upon FOIA Exemption 7(F) to 
protect this type of information from disclosure. See 5 U.S.C. 
552(b)(7)(F) (protecting law enforcement information that could 
reasonably be expected to endanger the life or physical safety of 
any individual). The Commission will continue to rely on this 
exemption, as appropriate.
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C. Criteria and Procedures for Determining What Constitutes CEII

    16. Section 215A(d)(2)(A) requires the Commission to ``establish 
criteria and procedures to designate information as critical electric 
infrastructure information.'' \11\ The proposed processes and 
procedures are intended to apply to the manner in which the Commission 
handles CEII that is submitted to or generated by the Commission.\12\
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    \11\ Section 215A(d)(3) gives the Commission and DOE the 
authority to designate Critical Electric Infrastructure Information.
    \12\ Section 215A(d)(3) provides that information ``may be 
designated'' by the Commission or Secretary of Energy as ``critical 
electric infrastructure information.'' These proposed regulations 
would only apply to information submitted to or generated by the 
Commission. Nothing in the preamble or proposed regulations would 
limit DOE's ability to designate information as it deems appropriate 
under the FAST Act.
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    17. Accordingly, the Commission proposes to amend section 
388.113(d) of its regulations to provide that information submitted to 
or generated by the Commission is CEII if it meets the definition, and 
the criteria provided below.\13\ The Commission therefore proposes to 
merge its existing criteria with the statutory directives in the FAST 
Act. The Commission further proposes to amend its procedures, as 
explained below.
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    \13\ Information downloaded by Commission staff from private 
databases that are accessed pursuant to Commission order or 
regulation will be maintained as non-public information consistent 
with the Commission's internal controls. See, e.g., Availability of 
Certain North American Electric Reliability Corporation Databases to 
the Commission, 155 FERC ] 61,275 (2016). If the Commission receives 
a request for access to downloaded information, the Commission will 
evaluate whether the information meets the definition of CEII or is 
proprietary information or otherwise privileged or non-public and 
will provide the owner of the database or information (as 
appropriate) with an opportunity to comment on the request 
consistent with proposed section 388.113(d)(1)(vi) or sections 
388.112(d) and (e).
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1. Designation of Submissions to the Commission
    18. Existing section 388.112(b) requires that a submitter of 
Critical Energy Infrastructure Information clearly mark the information 
as CEII and provide a justification for the designation. The Commission 
will maintain these requirements in section 388.113(d) for CEII. 
However, in addition to this information, the Commission proposes to 
include in section 388.113(d) a requirement that each submitter include 
on the information submitted a clear statement of the date the 
information was submitted to the Commission, and how long the submitter 
believes the CEII designation should apply to the information.\14\ The 
referenced justification that the submitter submits must include an 
explanation for the period proposed. Such information will assist the 
Commission in making a determination as to the length of time the 
information should be designated as CEII. Failure to follow these 
submission requirements, including failure to provide an adequate 
justification, could result in denial of the designation and public 
release of the information.
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    \14\ The submitter must clearly indicate this information on the 
submission in a clear and durable manner. For example, in addition 
to an appropriate cover sheet, each page should be clearly labeled. 
The date of submission will start the period for CEII designation. 
Commission-generated information should also have clear markings.
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    19. Under its current practice, the Commission deems the 
designation on a submission accepted as submitted, unless the submitter 
is otherwise notified by the Commission.\15\ The Commission intends to 
follow that same practice under the new CEII regulations. However, the 
Commission maintains the discretion to check a submission at the time 
of submission to ensure that it includes adequate designation 
information and is properly designated. In sum, the burden will be on 
the submitting entity to ensure that the information it submits is 
properly labeled and contains adequate designation information. 
Although unmarked information may be eligible for CEII treatment, the 
Commission intends to treat information as CEII only if it is properly 
designated as CEII pursuant to our regulations.
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    \15\ Section 18 CFR 375.313 delegates authority to the Critical 
Energy Infrastructure Information Coordinator (Coordinator), who is 
the Director of the Office of External Affairs. As explained below, 
the Commission proposes to modify this section to reflect the new 
authority in the FAST Act.
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    20. To ensure that all the requirements concerning CEII are in a 
single section of the Commission's regulations, the Commission proposes 
to move the requirements in current section 388.112(b) regarding CEII 
to section 388.113(d). The Commission believes that it will better 
protect CEII from unauthorized disclosure as well as facilitate the 
voluntary sharing of CEII to have a single process to address CEII and 
for that process to be located in a single section of our regulations. 
Locating our CEII regulations in the same section of the Commission's 
regulations will relieve the public from having to review multiple 
sections of our regulations to find our rules addressing CEII, which 
may cause confusion.
2. Designation of Commission-Generated Information
    21. The Commission proposes to revise section 388.113(d) to specify 
that, for Commission-generated information, the Office Director for the 
Commission office in which the Commission-generated information was 
created, or the Office Director's designee, must consult with the 
Coordinator to determine whether the information meets the definition 
of CEII, how long the designation of CEII should last and, as 
appropriate, any re-designation. The Coordinator will then make the 
designation determination.\16\ Any CEII that the Commission generates 
must also be clearly marked as CEII and indicate the date that the 
information was designated as CEII. This coordination will help ensure 
that Commission-generated information is handled in an appropriate and 
consistent manner.
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    \16\ Pursuant to section 375.313(d) of the Commission's 
regulations, the Coordinator is responsible for establishing 
``reasonable conditions'' on the release of CEII.
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3. Segregable Information
    22. In many cases, information submitted to the Commission may 
contain information that is CEII along with information that is not 
CEII. Section 215A(d)(8) requires the Commission to:

segregate critical electric infrastructure information or 
information that reasonably could be expected to lead to the 
disclosure of the critical electric infrastructure information 
within documents and electronic communications, wherever feasible, 
to facilitate disclosure of information that is not designated as 
critical electric infrastructure information.

    Accordingly, the Commission proposes to add a provision to section 
388.113(d) that would require the submitter to segregate CEII (or 
information that reasonably could be expected to lead to the disclosure 
of the CEII) from non-CEII at the time of submission wherever feasible. 
The burden would be on the submitter to clearly mark in the submission 
what is CEII and what is not CEII. The requirement also would apply to 
Commission-generated CEII.\17\
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    \17\ See proposed 18 CFR 388.113(d)(2) and (3).
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4. Duration of Designation
    23. Section 215A(d)(9) of the FPA states that information ``may not 
be

[[Page 43560]]

designated as critical electric infrastructure information for longer 
than 5 years, unless specifically re-designated by the Commission or 
the Secretary, as appropriate.'' The Commission proposes to add this 
statement to proposed section 388.113(e).
    24. The Commission plans to use the following process to implement 
the duration of designation provision. At the present time there are 
almost 200,000 documents labeled as Critical Energy Infrastructure 
Information in the Commission's eLibrary system. The Commission does 
not plan to move designated information from its non-public files to 
its public files after the designation period has passed (i.e., up to 
five years from date of designation), unless the Commission determines 
in a particular instance that it is appropriate to do so. The passing 
of the CEII designation period would not necessarily render designated 
information suitable for inclusion in the Commission's public files. 
The Commission plans to determine whether information should be re-
designated or alternatively placed in the Commission's public files 
when an entity requests the information, when staff determines a need 
to remove the designation, or when a submitter requests that 
information no longer be treated as CEII.\18\
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    \18\ In the event the Commission re-designates information as 
CEII, the Commission will re-designate the information as CEII for 
another five years or a shorter time period, as appropriate.
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    25. The proposed approach is consistent with the FAST Act. Section 
215A(d)(9) of the FPA does not require automatic public disclosure of 
CEII at the end of the initial CEII designation period. Indeed, the 
FAST Act contemplates that there may be information that warrants 
continued protection after the initial designation period. Given the 
volume of CEII in the Commission's files and the expectation that the 
Commission will continue to receive a substantial amount of CEII each 
year, this proposed approach strikes a reasonable balance in meeting 
the designation requirements of the FAST Act.
    26. Consistent with the above practice, the Commission proposes 
that the non-disclosure agreement (NDA) will require any recipient of 
CEII from the Commission to continue to protect the information past 
the expiration of the CEII designation marked on the information. 
Further, the recipient must receive prior authorization from the 
Commission before making any disclosure of such information. These 
requirements will enable the Commission to comply with section 
215A(d)(10) and determine whether information must be ``specifically 
re-designated'' as CEII.
    27. Section 215A(d)(10) of the FPA provides that when ``the 
Commission or the [DOE] Secretary, as appropriate, determines that the 
unauthorized disclosure of such information could no longer be used to 
impair the security or reliability of the bulk-power system or 
distribution facilities'' the designation shall be removed. The 
Commission proposes to revise section 388.113(e) of the Commission's 
regulations to provide for removal of the CEII designation when it no 
longer could impair the security or reliability of not only the Bulk-
Power System and distribution facilities but also other forms of energy 
infrastructure. The Commission will provide notice to the submitter in 
the instance where the Commission takes the affirmative step to rescind 
the designation.
5. Judicial Review of Designation
    28. Section 215A(d)(11) of the FPA provides that:

any determination by the Commission or the [DOE] Secretary 
concerning the designation of critical electric infrastructure 
information . . . shall be subject to review . . . in the district 
court of the United States in the district in which the complainant 
resides, or has his principal place of business, or in the District 
of Columbia.

    The Commission proposes to incorporate this provision into proposed 
section 388.113(e) of its regulations. In addition, the Commission 
proposes to require an entity or individual that intends to challenge a 
Commission designation determination in federal district court to first 
appeal the decision to the Commission's General Counsel. We believe 
that requiring an administrative appeal prior to seeking judicial 
review is appropriate because it would ensure consistency in how the 
Commission addresses CEII determinations, and is consistent with the 
current practice for responding to CEII and FOIA requests.\19\
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    \19\ Such a determination is subject to review by an applicable 
district court and would not be an order subject to rehearing and 
review under 16 U.S.C. 825l.
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D. Duty To Protect CEII

    29. Whether CEII is created by Commission staff or submitted to the 
Commission by an outside party or a member of the public, section 
215A(d)(2)(B) of the FPA requires the Commission to ``prohibit the 
unauthorized disclosure of critical electric infrastructure 
information.'' This requirement applies to Commission employees as well 
as to all individuals to whom the Commission provides CEII. Thus, the 
Commission proposes to make the following changes to its regulations in 
proposed section 388.113(h) to ensure CEII is adequately protected.
1. Internal Controls for Commission Employees
    30. To ensure that Commission employees appropriately handle CEII, 
Commission staff is developing an information governance policy and 
guidelines, which is intended to address how sensitive information, 
including CEII, should be handled, marked, and kept secure.\20\ 
Consistent with these guidelines, the Commission proposes to add a 
provision in proposed section 388.113(h) that would require the 
Commissioners, Commission staff, and Commission contractors to comply 
with the Commission's internal controls. The internal controls will 
address how the Commission and its personnel, including contractors and 
agents, handle CEII.
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    \20\ The DOE IG Report raised concerns with how Commission staff 
handled, labeled, and tracked Critical Energy Infrastructure 
Information. DOE IG Report at 2-5, 12.
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2. Controls for Recipients of CEII
    31. Currently, section 388.113(d) requires external recipients of 
Critical Energy Infrastructure Information to sign an NDA, which 
imposes conditions on how the information may be used.\21\ The current 
regulation does not specify the minimum required content of an NDA.
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    \21\ See, e.g., General Non-Disclosure Agreement, http://www.ferc.gov/legal/ceii-foia/ceii/gen-nda.pdf.
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    32. The Commission proposes to strengthen the NDA requirements for 
all the different forms of NDAs the Commission uses to share CEII.\22\ 
Including these provisions in each type of NDA form that the Commission 
uses will better protect CEII from unauthorized disclosure. 
Specifically, the Commission proposes revising its regulations to state 
in section 388.113(h)(2) that an NDA must minimally require that CEII: 
(1) Will only be used for the purpose it was requested; (2) may only be 
discussed with authorized recipients; (3) must be kept in a secure 
place in a manner that would prevent unauthorized access; (4)

[[Page 43561]]

must be destroyed or returned to the Commission upon request; and (5) 
that the Commission may audit compliance with the NDA. These changes 
would codify and strengthen current NDA terms consistent with FPA 
section 215A(d).
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    \22\ Separate NDAs exist for general users, the media, state 
agencies, and consultants, and are available at http://www.ferc.gov/legal/ceii-foia/ceii.asp. Federal Agency requesters, as noted below, 
receive an Agency Acknowledgment and Agreement, which has different 
terms than the NDAs.
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    33. Moreover, another means to prevent unauthorized disclosure of 
CEII is to ensure that the CEII is only shared with those who need it. 
The Commission, therefore, proposes to amend section 388.113(g)(5) to 
require a person seeking CEII to demonstrate a legitimate need for the 
information. Thus, the Commission proposes to require a requestor to 
demonstrate: (1) The extent to which a particular function is dependent 
upon access to the information; (2) why the function cannot be achieved 
or performed without access to the information; (3) whether other 
information is available to the requester that could facilitate the 
same objective; (4) how long the information will be needed; (5) 
whether or not the information is needed to participate in a specific 
proceeding (with that proceeding identified); and (6) whether the 
information is needed expeditiously. This information will assist the 
Commission's CEII Coordinator in ``balance[ing] the requestor's need 
for the information against the sensitivity of the information.'' \23\ 
A conclusory statement will not satisfy this requirement.
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    \23\ See 18 CFR 388.113(d)(4)(iii) and (iv).
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    34. Finally, to ensure that CEII is only disclosed to appropriate 
individuals, the Commission proposes to amend section 
388.113(g)(5)(i)(D) to require the requestor to include a signed 
statement attesting to the accuracy of the information provided in any 
request for CEII submitted to the Commission.

E. Sanctions

    35. Section 215A(d)(2)(C) of the FPA requires the Commission to 
``ensure there are appropriate sanctions in place for Commissioners, 
officers, employees, or agents of the Commission or the Department of 
Energy who knowingly and willfully disclose critical electric 
infrastructure information in a manner that is not authorized under 
this section.'' The Commission proposes to add proposed section 
388.113(i) to implement this requirement.
    36. The Commission proposes that it take responsibility for 
addressing unauthorized disclosures of CEII in the Commission's 
possession by Commission personnel.\24\ The Commission may initiate an 
adverse personnel action, such as a suspension or a removal action, 
against a Commission employee who makes an unauthorized disclosure of 
CEII or any other non-public information.\25\ While the Commission may 
not sanction the Chairman or Commissioners,\26\ it can refer any 
misconduct by the Chairman or Commissioners to the DOE Inspector 
General.
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    \24\ The Commission anticipates that DOE will take 
responsibility for sanctions for unauthorized disclosures by its 
officers, employees, staff, and agents with regard to information in 
DOE's possession.
    \25\ See, e.g., 5 U.S.C. Chapter 75 (Adverse Actions).
    \26\ The Chairman and Commissioners are appointed by the 
President and may be removed by the President only for inefficiency, 
neglect of duty, or malfeasance in office. 42 U.S.C. 7171.
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F. Voluntary Sharing of CEII

    37. Section 215A(d)(2)(D) of the FPA requires that the Commission:

taking into account standards of the Electric Reliability 
Organization, facilitate voluntary sharing of critical electric 
infrastructure information with, between, and by--(i) Federal, 
State, political subdivision, and tribal authorities; (ii) the 
Electric Reliability Organization; (iii) regional entities; (iv) 
information sharing and analysis centers established pursuant to 
Presidential Decision Directive 63; (v) owners, operators, and users 
of critical electric infrastructure in the United States; and (vi) 
other entities determined appropriate by the Commission.

    Under this provision, the Commission has authority to share CEII 
with individuals and organizations that the Commission has determined 
need the information to ensure that energy infrastructure is 
protected.\27\ Voluntary sharing applies to both Commission-generated 
CEII and CEII submitted to the Commission.
---------------------------------------------------------------------------

    \27\ Section 215A(d)(6) of the FPA makes clear that nothing in 
the FAST Act ``require[s] a person or entity in possession of 
critical electric infrastructure information to share such 
information'' with other individuals and entities; see also 
Cybersecurity Information Sharing Act of 2015, Public Law 114-113, 
129 Stat. 2936 (2015).
---------------------------------------------------------------------------

    38. Under this provision, the Commission may share CEII without 
first receiving a request for the CEII. Section 388.112(c)(i) already 
provides the Commission with ``the discretion to release information as 
necessary to carry out its jurisdictional responsibilities.'' The 
Commission proposes to move this language to section 388.113(f)(2) in 
the regulations and also note that the Commission retains the 
discretion to release information as necessary for other federal 
agencies to carry out their jurisdictional responsibilities.
    39. The Commission also proposes to add section 388.113(f)(1) to 
its regulations to require an Office Director or his designee to 
consult with the Coordinator prior to the Office Director or his 
designee making a determination to voluntarily share CEII. The 
Coordinator will determine whether the information has been 
appropriately designated as CEII and whether appropriate protective 
measures are in place to secure its transfer and treatment by the 
recipient.
    40. When the Commission voluntarily shares information, the CEII 
will be shared subject to an appropriate NDA or Acknowledgement and 
Agreement.\28\ Thus, the Commission proposes to add language to its 
regulations in proposed section 388.113(f) to make clear that, after a 
determination by the Coordinator, the Office Director will provide the 
proposed recipients of the CEII with the appropriate NDA or Agency 
Acknowledgement and Agreement for execution and return. The Commission 
proposes to amend its regulations to require a signed copy of each 
agreement be maintained by the Office Director with a copy to the 
Coordinator.
---------------------------------------------------------------------------

    \28\ As noted below, to obtain CEII Federal Agencies execute an 
Acknowledgement and Agreement, as opposed to an NDA. See Federal 
Agency Acknowledgement and Agreement, http://www.ferc.gov/legal/ceii-foia/ceii/fed-agen-acknow-agree.pdf.
---------------------------------------------------------------------------

    41. The Commission proposes to add to section 388.113(f) of its 
regulations a statement indicating that the Commission may impose 
additional restrictions on how the CEII the Commission voluntarily 
shares may be used and maintained. Given that the Commission 
anticipates that it will voluntarily share CEII when the Commission 
believes that the recipients need the information to protect critical 
infrastructure, the recipients may otherwise have no other legitimate 
need for the information but to address that event. Thus, it is 
appropriate to impose additional conditions on use and handling of CEII 
that the Commission voluntarily shares.
    42. Where practicable, when the Commission is considering 
voluntarily sharing CEII, the Commission will provide notice to the 
submitter of that information. However, it may not be practicable for 
the Commission to provide notice to the submitter in instances where 
voluntary sharing is necessary to maintain infrastructure security, to 
address a potential threat, or in other exigent circumstances. In such 
instances, a requirement to give notice to the submitter may be 
detrimental to the ability of the Commission to timely share CEII with 
entities that may urgently need the information and could compromise 
law enforcement

[[Page 43562]]

operations.\29\ Thus, under these limited circumstances, the Commission 
will not give the submitter notice of sharing the CEII with others. 
However, to be clear, any CEII that the Commission voluntarily shares 
under these circumstances will be handled as CEII subject to an NDA or 
an Acknowledgement and Agreement and, as explained above, may be 
subject to additional controls as appropriate.
---------------------------------------------------------------------------

    \29\ For example, FPA section 215A(e) requires the Commission to 
share ``timely actionable information regarding grid security with 
appropriate key personnel of owners, operators, and users of the 
critical electric infrastructure.'' This information may include 
classified information as well as CEII. Providing notice and seeking 
a response from a submitter prior to disclosure of this CEII may 
hinder the Commission's ability to share ``timely actionable 
information.''
---------------------------------------------------------------------------

IV. Other Proposed Revisions

A. Request for Access to CEII

1. Owner-Operator Requests
    43. Existing sections 388.113(d)(1) and (2) permit Critical Energy 
Infrastructure Information to be released directly to owner/operators 
outside of the Critical Energy Infrastructure Information process. The 
DOE IG Report raised concerns that the Commission might not be aware of 
information released outside of the Critical Energy Infrastructure 
Information process.\30\ The Commission proposes to maintain this 
practice but proposes to amend existing sections 388.113(d)(1) and (2), 
re-designated as proposed sections 388.113(g)(1) and (2), to require 
Commission staff to inform the Coordinator of such requests prior to 
the release of any information.
---------------------------------------------------------------------------

    \30\ See DOE IG Report at 4-5.
---------------------------------------------------------------------------

    44. Additionally, the Commission proposes to amend existing section 
388.113(d)(1), which allows an owner or operator of a facility to 
obtain certain CEII concerning its facilities without signing an NDA, 
to exclude Commission-generated information except inspection reports/
operation reports and any information directed to the owner-operators. 
Thus, the owners and operators of a facility will be able to obtain 
inspection reports/operation reports and any information directed to 
the owner-operators concerning their facilities without going through 
the CEII process.
    45. In Order No. 630, the Commission relieved owners/operators from 
signing an NDA for Critical Energy Infrastructure Information regarding 
their own facilities on the basis that ``they have at least as great an 
incentive to protect this information as the Commission has.'' \31\ We 
believe that owners/operators will have the same incentive to protect 
inspection reports/operation reports and any information regarding 
their own facilities that may contain Commission-generated CEII.
---------------------------------------------------------------------------

    \31\ Critical Energy Infrastructure Information, Order No. 630, 
68 FR 9857 (Mar. 3, 2003), FERC Stats. & Regs. ] 31,140 (2003); 
order on reh'g, Order No. 630-A, 68 FR 46,456 (Aug. 6, 2003), FERC 
Stats. & Regs. ] 31,147, at P 57 (2003).
---------------------------------------------------------------------------

2. Federal Agency Requests
    46. Existing section 388.113(d)(2) allows any employee of a Federal 
agency acting within the scope of his or her federal employment to 
obtain Critical Energy Infrastructure Information without going through 
the process outlined in existing section 388.113(d)(5), as long as the 
request is approved by a Commission Division Director or higher.
    47. The Commission's practice has been for an employee of another 
agency to sign an Acknowledgement and Agreement, which states that the 
agency will protect the Critical Energy Infrastructure Information in 
the same manner as the Commission and will refer any requests for the 
information to the Commission. The Commission proposes to maintain and 
codify this practice in the revised CEII regulations in section 
388.113(g)(2).
3. Intervenor Requests
    48. Individuals in a complaint proceeding or other proceeding to 
which a right to intervention exists may need CEII to participate in 
the proceeding. Where a submitter has provided CEII or other non-public 
information with its filing, existing section 388.112(b)(2)(i) requires 
a submitter in the context of a proceeding before the Commission to 
``include a proposed form of a protective agreement with the filing'' 
to facilitate an intervenor's access to information without going 
through the Critical Energy Infrastructure Information process. Under 
this provision four categories of information need not be provided 
subject to such a protective agreement: (1) Landowner lists; (2) 
privileged information filed under section 380.12(f) or section 
380.16(f), which pertain to cultural resources; (3) privileged 
information filed under section 380.12(m), which pertains to 
reliability and safety information that must be filed by liquefied 
natural gas (LNG) facilities; and (4) privileged information filed 
under section 380.12(o), which pertains to engineering and design 
material information that must be filed by LNG facilities.
    49. However, in Dominion Cove Point LNG, LP,\32\ the Commission 
directed a party to release pursuant to a protective agreement LNG 
safety and engineering information not otherwise available under 
section 388.112(b)(2)(i). Consistent with that decision, the Commission 
proposes to amend its regulations to eliminate the current exemptions 
for LNG information identified under section 388.112(b)(2)(i). This 
change would leave in place the right of any filer or any person to 
oppose the disclosure. The Commission proposes to move these 
requirements to section 388.113(g)(4).
---------------------------------------------------------------------------

    \32\ See Dominion Cove Point LNG, LP, 147 FERC ] 61,202 (2014) 
(concluding that the protective agreement outlined in section 
388.112(b)(2)(i), as opposed to the Critical Energy Infrastructure 
Information process, was the appropriate mechanism to obtain 
fourteen identified LNG safety and engineering documents).
---------------------------------------------------------------------------

B. Other Considerations for Access to CEII

1. Organizational Requests
    50. Existing section 388.113(d)(4)(vi) permits an organization to 
request CEII for its employees who sign an NDA. With notice to the 
Commission, the regulation allows the organization to give additional 
employees access to this CEII, subject to their signing an NDA. The 
Commission proposes to place a one-year time limit on an organization's 
ability to add additional employees. After one year from the date of 
its original request, an organization would have to submit a new CEII 
request and NDAs pursuant to proposed section 388.113(g)(5)(ii).
2. Timing Requirement
    51. An earlier version of the Commission's regulations stated that 
Critical Energy Infrastructure Information requests would be processed, 
if possible, within the statutory timeframe for FOIA. The Commission 
proposes to amend section 388.113(g)(vii) of its regulations to 
reestablish this requirement for CEII, as the Commission never intended 
to remove it from the regulations.\33\
---------------------------------------------------------------------------

    \33\ This language appears in the April 2007 edition of the 
Commission's regulations, but does not appear in the April 2008 
edition. The preamble to the 2008 regulations does not provide an 
explanation for the elimination of this provision from the 
Commission's regulations. Thus, the Commission believes it 
appropriate to reinstate the requirement.
---------------------------------------------------------------------------

3. CEII Combined With Other Protected Information
    52. If CEII and proprietary or other protected information are 
inextricably intertwined, the Commission has historically withheld from 
disclosure

[[Page 43563]]

the intertwined information under FOIA. Consistent with this practice, 
the Commission proposes to add section 388.113(g)(5)(ix) to clarify 
that the Commission's CEII regulations should not be construed to 
require the release of proprietary information, personal information, 
cultural resource information and other comparable data protected by 
statute or regulation, or any privileged or otherwise non-public 
information, including information protected by the deliberative 
process.
4. CEII Coordinator
    53. Under section 375.313, the Commission has delegated to the 
Coordinator certain authority to address CEII matters. The Commission 
proposes to amend subsection 375.313(b) to make clear that the 
Coordinator has designation authority consistent with the FAST Act, and 
to add a subsection to make clear that the Coordinator has the 
authority to designate and release information to the public. Moreover, 
the Commission proposes to change all references in section 375.313 
from Critical Energy Infrastructure Information to the acronym CEII.

V. Information Collection Statement

    54. The Paperwork Reduction Act and Office of Management and 
Budget's (OMB) implementing regulations require OMB to review and 
approve certain information collection requirements imposed by agency 
rule.\34\ This Notice of Proposed Rulemaking does not impose any 
additional information collection requirements.\35\ Therefore, the 
information collection regulations do not apply to this Notice of 
Proposed Rulemaking.
---------------------------------------------------------------------------

    \34\ 5 CFR 1320.
    \35\ The current information collection requirements related to 
requesting access to CEII material are approved by OMB under FERC-
603 (OMB Control No. 1902-0197).
---------------------------------------------------------------------------

VI. Environmental Analysis

    55. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\36\
---------------------------------------------------------------------------

    \36\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, FERC Stats. & Regs. ] 30,783 (1987).
---------------------------------------------------------------------------

    56. The Commission has categorically excluded certain actions from 
this requirement as not having a significant effect on the human 
environment. Included in the exclusion are rules that are clarifying, 
corrective, or procedural, or that do not substantially change the 
effect of the regulations being amended.\37\ The actions here fall 
within this categorical exclusion in the Commission's regulations.
---------------------------------------------------------------------------

    \37\ 18 CFR 380.4(a)(2)(ii).
---------------------------------------------------------------------------

VII. Regulatory Flexibility Act Certification

    57. The Regulatory Flexibility Act of 1980 (RFA) requires 
rulemakings to contain either a description and analysis of the effect 
that the rule will have on small entities or a certification that the 
rule will not have a significant economic impact on a substantial 
number of small entities.\38\ Rules that are exempt from the notice and 
comment requirements of section 553(b) of the Administrative Procedure 
Act are exempt from the RFA requirements. This Notice of Proposed 
Rulemaking concerns rules of agency procedure and, therefore, an 
analysis under the RFA is not required.\39\
---------------------------------------------------------------------------

    \38\ 5 U.S.C. 603 (2012).
    \39\ 5 U.S.C. 553(b).
---------------------------------------------------------------------------

VIII. Public Comments

    58. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due August 19, 2016. Comments must refer to 
Docket No. RM16-15-000, and must include the commenter's name, the 
organization they represent, if applicable, and their address in their 
comments.
    59. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing 
formats. Information created electronically using word processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    60. Commenters that are not able to file comments electronically 
must send an original of their comments to: Federal Energy Regulatory 
Commission, Secretary of the Commission, 888 First Street NE., 
Washington, DC 20426.
    61. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

IX. Document Availability

    62. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through the Commission's Home Page (http://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, 
Washington, DC 20426.
    63. From the Commission's Home Page on the Internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number of this document, excluding the last three digits, in 
the docket number field.
    64. User assistance is available for eLibrary and the Commission's 
Web site during normal business hours from the Commission's Online 
Support at 202-502-6652 (toll free at 1-866-208-3676) or email at 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
public.referenceroom@ferc.gov.

List of Subjects

18 CFR Part 375

    Authority delegations (Government agencies); Seals and insignia; 
Sunshine Act.

18 CFR Part 388

    Confidential business information; Freedom of information.


    By direction of the Commission.

     Dated: June 16, 2016.
Kimberly D. Bose,
Secretary.
    In consideration of the foregoing, the Commission proposes to amend 
Parts 375 and 388, Chapter I, Title 18, Code of Federal Regulations, as 
follows:

PART 375--THE COMMISSION

0
1. The authority citation for part 375 continues to read as follows:

    Authority:  5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.

0
2. Amend Sec.  375.313 by:
0
a. Revising the section heading and paragraphs (a) and (b);
0
b. Redesignating paragraphs (c) through (e) as paragraphs (d) through 
(f) and revising newly redesignated paragraphs (d) through (f); and
0
c. Adding a new paragraph (c).

[[Page 43564]]

    The revisions and addition read as follows:


Sec.  375.313  Delegations to the Critical Energy/Electric 
Infrastructure Information (CEII) Coordinator.

* * * * *
    (a) Receive and review all requests for CEII as defined in Sec.  
388.113(c) of this chapter.
    (b) Make determinations as to whether particular information fits 
within the definition of CEII found at Sec.  388.113(c) of this 
chapter, including designating information, as appropriate.
    (c) Make a determination that information designated as CEII should 
no longer be so designated when the unauthorized disclosure of the 
information could no longer be used to impair the security or 
reliability of the bulk-power system or distribution facilities or any 
other infrastructure.
    (d) Make determinations as to whether a particular requester's need 
for and ability and willingness to protect CEII warrants limited 
disclosure of the information to the requester.
    (e) Establish reasonable conditions on the release of CEII.
    (f) Release CEII to requesters who satisfy the requirements in 
paragraph (d) of this section and agree in writing to abide by any 
conditions set forth by the Coordinator pursuant to paragraph (e) of 
this section.

PART 388--INFORMATION AND REQUESTS

0
3. The authority citation for part 388 is changed to read as follows:

    Authority:  5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42 
U.S.C. 7101-7352; 16 U.S.C. 824(o-l).

0
4. Amend Sec.  388.112 by revising the section heading and paragraphs 
(a), (b)(1), (b)(2)(i), (b)(2)(vi), (c)(1), and (d)-(e) to read as 
follows:

Sec.  388.112  Requests for privileged treatment for documents 
submitted to the Commission.

    (a) Scope. By following the procedures specified in this section, 
any person submitting a document to the Commission may request 
privileged treatment for some or all of the information contained in a 
particular document that it claims is exempt from the mandatory public 
disclosure requirements of the Freedom of Information Act, 5 U.S.C. 552 
(FOIA), and should be withheld from public disclosure. For the purposes 
of the Commission's filing requirements, non-CEII subject to an 
outstanding claim of exemption from disclosure under FOIA will be 
referred to as privileged material. The rules governing CEII are 
contained in 18 CFR 388.113.
    (b) Procedures for filing and obtaining privileged material. (1) 
General Procedures. A person requesting that material be treated as 
privileged information must include in its filing a justification for 
such treatment in accordance with the filing procedures posted on the 
Commission's Web site at http://www.ferc.gov. A person requesting that 
a document filed with the Commission be treated as privileged in whole 
or in part must designate the document as privileged in making an 
electronic filing or clearly indicate a request for such treatment on a 
paper filing. The cover page and pages or portions of the document 
containing material for which privileged treatment is claimed should be 
clearly labeled in bold, capital lettering, indicating that it contains 
privileged or confidential information, as appropriate, and marked ``DO 
NOT RELEASE.'' The filer also must submit to the Commission a public 
version with the information that is claimed to be privileged material 
redacted, to the extent practicable.
    (2) Procedures for Proceedings with a Right to Intervene. * * *
    (i) If a person files material as privileged material in a 
complaint proceeding or other proceeding to which a right to 
intervention exists, that person must include a proposed form of 
protective agreement with the filing, or identify a protective 
agreement that has already been filed in the proceeding that applies to 
the filed material. This requirement does not apply to material 
submitted in hearing or settlement proceedings, or if the only material 
for which privileged treatment is claimed consists of landowner lists 
or privileged information filed under sections 380.12(f) and 380.16(f) 
of this chapter.
* * * * *
    (vi) For landowner lists, information filed as privileged under 
sections 380.12(f) and 380.16(f), forms filed with the Commission, and 
other documents not covered above, access to this material can be 
sought pursuant to a FOIA request under section 388.108 of this 
chapter. Applicants are not required under paragraph (b)(2)(iv) of this 
section to provide intervenors with landowner lists and the other 
materials identified in the previous sentence.
    (c) Effect of privilege claim. (1) For documents filed with the 
Commission:
    (i) The documents for which privileged treatment is claimed will be 
maintained in the Commission's document repositories as non-public 
until such time as the Commission may determine that the document is 
not entitled to the treatment sought and is subject to disclosure 
consistent with section 388.108 of this chapter. By treating the 
documents as nonpublic, the Commission is not making a determination on 
any claim of privilege status. The Commission retains the right to make 
determinations with regard to any claim of privilege status, and the 
discretion to release information as necessary to carry out its 
jurisdictional responsibilities.
    (ii) The request for privileged treatment and the public version of 
the document will be made available while the request is pending.
* * * * *
    (d) Notification of request and opportunity to comment. When a FOIA 
requester seeks a document for which privilege status has been claimed, 
or when the Commission itself is considering release of such 
information, the Commission official who will decide whether to release 
the information or any other appropriate Commission official will 
notify the person who submitted the document and give the person an 
opportunity (at least five calendar days) in which to comment in 
writing on the request. A copy of this notice will be sent to the 
requester.
    (e) Notification before release. Notice of a decision by the 
Commission, the Chairman of the Commission, the Director, Office of 
External Affairs, the General Counsel or General Counsel's designee, a 
presiding officer in a proceeding under part 385 of this chapter, or 
any other appropriate official to deny a claim of privilege, in whole 
or in part, will be given to any person claiming that the information 
is privileged no less than 5 calendar days before disclosure. The 
notice will briefly explain why the person's objections to disclosure 
are not sustained by the Commission. A copy of this notice will be sent 
to the FOIA requester.
* * * * *
0
5. Revise Sec.  388.113 to read as follows:


Sec.  388.113  Critical Energy/Electric Infrastructure Information 
(CEII)

    (a) Scope. This section governs the procedures for submitting, 
designating, handling, sharing, and disseminating Critical Energy/
Electric Infrastructure Information (CEII) submitted to or generated by 
the Commission. The Commission reserves the right to restrict access to 
previously filed information as well as Commission-generated 
information containing CEII.
    (b) Purpose. The procedures in this section implement section 215A 
of the Federal Power Act, and provide a comprehensive overview of the 
manner

[[Page 43565]]

in which the Commission will implement the CEII program.
    (c) Definitions. For purposes of this section: (1) Critical 
electric infrastructure information means information related to 
critical electric infrastructure, or proposed critical electrical 
infrastructure, generated by or provided to the Commission or other 
Federal agency other than classified national security information, 
that is designated as critical electric infrastructure information by 
the Commission or the Secretary of the Department of Energy pursuant to 
section 215A(d) of the Federal Power Act. Such term includes 
information that qualifies as critical energy infrastructure 
information under the Commission's regulations. Critical Electric 
Infrastructure Information is exempt from mandatory disclosure under 
the Freedom of Information Act, 5 U.S.C. 552, pursuant to section 
215A(d)(1)(A) of the Federal Power Act.
    (2) Critical energy infrastructure information means specific 
engineering, vulnerability, or detailed design information about 
proposed or existing critical infrastructure that:
    (i) Relates details about the production, generation, 
transportation, transmission, or distribution of energy;
    (ii) Could be useful to a person in planning an attack on critical 
infrastructure;
    (iii) Is exempt from mandatory disclosure under the Freedom of 
Information Act, 5 U.S.C. 552, pursuant to section 215A(d)(1)(A) of the 
Federal Power Act; and
    (iv) Does not simply give the general location of the critical 
infrastructure.
    (3) Critical electric infrastructure means a system or asset of the 
bulk-power system, whether physical or virtual, the incapacity or 
destruction of which would negatively affect national security, 
economic security, public health or safety, or any combination of such 
matters.
    (4) Critical infrastructure means existing and proposed systems and 
assets, whether physical or virtual, the incapacity or destruction of 
which would negatively affect security, economic security, public 
health or safety, or any combination of those matters.
    (d) Criteria and Procedures for determining what constitutes CEII. 
The following criteria and procedures apply to information labeled as 
CEII:
    (1) For information submitted to the Commission:
    (i) A person requesting that information submitted to the 
Commission be treated as CEII must include with its submission a 
justification for such treatment in accordance with the filing 
procedures posted on the Commission's Web site at http://www.ferc.gov. 
The justification must provide how the information, or any portion of 
the information, qualifies as CEII, as the terms are defined in 
paragraphs (c)(1) and (2) of this section. The submission must also 
include a clear statement of the date the information was submitted to 
the Commission, how long the CEII designation should apply to the 
information and support for the period proposed. Failure to provide the 
justification or other required information could result in denial of 
the designation and release of the information to the public.
    (ii) In addition to the justification required by paragraph 
(d)(1)(i) of this section, a person requesting that information 
submitted to the Commission be treated as CEII must clearly label the 
cover page and pages or portions of the information for which CEII 
treatment is claimed in bold, capital lettering, indicating that it 
contains CEII, as appropriate, and marked ``DO NOT RELEASE.'' The 
submitter must also segregate those portions of the information that 
contain CEII (or information that reasonably could be expected to lead 
to the disclosure of the CEII) wherever feasible. The submitter must 
also submit to the Commission a public version with the information 
where CEII is redacted, to the extent practicable.
    (iii) If a person files material as CEII in a complaint proceeding 
or other proceeding to which a right to intervention exists, that 
person must include a proposed form of protective agreement with the 
filing, or identify a protective agreement that has already been filed 
in the proceeding that applies to the filed material.
    (iv) The information for which CEII treatment is claimed will be 
maintained in the Commission's files as non-public until such time as 
the Commission may determine that the information is not entitled to 
the treatment sought. By treating the information as non-public, the 
Commission is not making a determination on any claim of CEII status. 
The Commission retains the right to make determinations with regard to 
any claim of CEII status, and the discretion to release information as 
necessary to carry out its jurisdictional responsibilities. Although 
unmarked information may be eligible for CEII treatment, the Commission 
intends to treat information as CEII only if it is properly designated 
as CEII pursuant to Commission regulations.
    (v) The Commission will evaluate whether the submitted information 
or portions of the information are covered by the definitions in 
paragraphs (c)(1) and (2) of this section prior to making a designation 
as CEII.
    (vi) Subject to the exceptions set forth in section 388.113(f)(5), 
when a CEII requester seeks information for which CEII status has been 
claimed, or when the Commission itself is considering release of such 
information, the Commission official who will decide whether to release 
the information or any other appropriate Commission official will 
notify the person who submitted the information 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. Notice of a decision by the Commission, or the CEII 
Coordinator to make a limited release of CEII, will be given to any 
person claiming that the information is CEII no less than five calendar 
days before disclosure. The notice will briefly explain why the 
submitter's objections to disclosure are not sustained by the 
Commission. Where applicable, a copy of this notice will be sent to the 
CEII requester.
    (2) For Commission-generated information, after consultation with 
the Office Director for the office that created the information, or the 
Office Director's designee, the Coordinator will designate the material 
as CEII after determining that the information or portions of the 
information are covered by the definitions in paragraphs (c)(1) and (2) 
of this section. Commission-generated CEII shall include clear markings 
to indicate the information is CEII and the date of the designation.
    (3) For Commission-generated information, the Commission will 
segregate non-CEII from CEII or information that reasonably could be 
expected to lead to the disclosure of CEII wherever feasible.
    (e) Duration of the CEII designation. All CEII designations will be 
subject to the following conditions:
    (1) A designation may last for up to a five-year period, unless re-
designated. In making a determination as to whether the designation 
should be extended, the CEII Coordinator will take into account 
information provided in response to paragraph (d)(1)(i) of this 
section, and any other information, as appropriate.
    (2) A designation may be removed at any time, in whole or in part, 
if the Commission determines that the unauthorized disclosure of CEII 
could no longer be used to impair the security or reliability of the 
bulk-power system

[[Page 43566]]

or distribution facilities or any other form of energy infrastructure.
    (3) If such a designation is removed, the submitter will receive 
notice and an opportunity to comment. The CEII Coordinator 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 prior to the removal of the designation. Notice of a removal 
decision will be given to any person claiming that the information is 
CEII no less than 5 calendar days before disclosure. The notice will 
briefly explain why the person's objections to the removal of the 
designation are not sustained by the Commission.
    (4) Prior to seeking judicial review in district court pursuant to 
section 215A(d)(11) of the Federal Power Act, an administrative appeal 
of a determination shall be made to the Commission's General Counsel.
    (f) Voluntary sharing of CEII. The Commission, taking into account 
standards of the Electric Reliability Organization, will facilitate 
voluntary sharing of CEII with, between, and by Federal, state, 
political subdivision, and tribal authorities; the Electric Reliability 
Organization; regional entities; information sharing and analysis 
centers established pursuant to Presidential Decision Directive 63; 
owners, operators, and users of critical electric infrastructure in the 
United States; and other entities determined appropriate by the 
Commission. The process will be as follows:
    (1) The Director of any Office of the Commission or his designee 
that wishes to voluntarily share CEII shall consult with the CEII 
Coordinator prior to the Office Director or his designee making a 
determination on whether to voluntarily share the CEII.
    (2) Consistent with section 388.113(d) of this Chapter, the 
Commission retains the discretion to release information as necessary 
to carry out its jurisdictional responsibilities in facilitating 
voluntary sharing or, in the case of information provided to other 
federal agencies, the Commission retains the discretion to release 
information as necessary for those agencies to carry out their 
jurisdictional responsibilities.
    (3) All entities receiving CEII must execute either a non-
disclosure agreement or an acknowledgement and agreement. A copy of 
each agreement will be maintained by the Office Director with a copy to 
the CEII Coordinator.
    (4) When the Commission voluntarily shares CEII pursuant to this 
subsection, the Commission may impose additional restrictions on how 
the information may be used and maintained.
    (5) Submitters of CEII shall receive notification of a limited 
release of CEII no less than 5 calendar days before disclosure, except 
in instances where voluntary sharing is necessary for law enforcement 
purposes, to maintain infrastructure security, to address potential 
threats, or when notice would not be practicable.
    (g) Accessing CEII.
    (1) An owner/operator of a facility, including employees and 
officers of the owner/operator, may obtain CEII relating to its own 
facility, excluding Commission-generated information except inspection 
reports/operation reports and any information directed to the owner-
operators, directly from Commission staff without going through the 
procedures outlined in paragraph (g)(5) of this section. Non-employee 
agents of an owner/operator of such facility may obtain CEII relating 
to the owner/operator's facility in the same manner as owner/operators 
as long as they present written authorization from the owner/operator 
to obtain such information. Notice of such requests must be given to 
the CEII Coordinator, who shall track this information.
    (2) An employee of a federal agency acting within the scope of his 
or her federal employment may obtain CEII directly from Commission 
staff without following the procedures outlined in paragraph (g)(5) of 
this section. Any Commission employee at or above the level of division 
director or its equivalent may rule on requests for access to CEII by a 
representative of a federal agency. To obtain access to CEII, an agency 
employee must sign an acknowledgement and agreement, which states that 
the agency will protect the CEII in the same manner as the Commission 
and will refer any requests for the information to the Commission. 
Notice of each such request also must be given to the CEII Coordinator, 
who shall track this information.
    (3) A landowner whose property is crossed by or in the vicinity of 
a project may receive detailed alignment sheets containing CEII 
directly from Commission staff without submitting a non-disclosure 
agreement as outlined in paragraph (g)(5) of this section. A landowner 
must provide Commission staff with proof of his or her property 
interest in the vicinity of a project.
    (4) Any person who is a participant in a proceeding or has filed a 
motion to intervene or notice of intervention in a proceeding may make 
a written request to the filer for a copy of the complete CEII version 
of the document without following the procedures outlined in paragraph 
(g)(5) of this section. The request must include an executed copy of 
the applicable protective agreement and a statement of the person's 
right to party or participant status or a copy of the person's motion 
to intervene or notice of intervention. Any person may file an 
objection to the proposed form of protective agreement. A filer, or any 
other person, may file an objection to disclosure, generally or to a 
particular person or persons who have sought intervention.
    (5) If any requester not described above in paragraph (g)(1)-(4) of 
this section has a particular need for information designated as CEII, 
the requester may request the information using the following 
procedures:
    (i) File a signed, written request with the Commission's CEII 
Coordinator. The request must contain the following:
    (A) Requester's name (including any other name(s) which the 
requester has used and the dates the requester used such name(s)), 
title, address, and telephone number; the name, address, and telephone 
number of the person or entity on whose behalf the information is 
requested;
    (B) A detailed Statement of Need, which must state: The extent to 
which a particular function is dependent upon access to the 
information; why the function cannot be achieved or performed without 
access to the information; an explanation of whether other information 
is available to the requester that could facilitate the same objective; 
how long the information will be needed; whether or not the information 
is needed to participate in a specific proceeding (with that proceeding 
identified); and an explanation of whether the information is needed 
expeditiously.
    (C) An executed non-disclosure agreement as described in paragraph 
(h)(2) of this section;
    (D) A signed statement attesting to the accuracy of the information 
provided in the request; and
    (E) A requester shall provide his or her date and place of birth 
upon request, if it is determined by the CEII Coordinator that this 
information is necessary to process the request.
    (ii) A requester who seeks the information on behalf of all 
employees of an organization should clearly state that the information 
is sought for the organization, that the requester is authorized to 
seek the information on behalf of the organization, and that all 
individuals in the organization that have access to the CEII will agree 
to be bound by a non-disclosure agreement that must be executed.

[[Page 43567]]

    (iii) After the request is received, the CEII Coordinator will 
determine if the information is CEII, and, if it is, whether to release 
the CEII to the requester. The CEII Coordinator will balance the 
requester's need for the information against the sensitivity of the 
information. If the requester is determined to be eligible to receive 
the information requested, the CEII Coordinator will determine what 
conditions, if any, to place on release of the information.
    (iv) If the CEII Coordinator determines that the CEII requester has 
not demonstrated a valid or legitimate need for the CEII or that access 
to the CEII should be denied for other reasons, this determination may 
be appealed to the General Counsel pursuant to section 388.110 of this 
Chapter. The General Counsel will decide whether the information is 
properly classified as CEII, which by definition is exempt from release 
under FOIA, and whether the Commission should in its discretion make 
such CEII available to the CEII requester in view of the requester's 
asserted legitimacy and need.
    (v) Once a CEII requester has been verified by Commission staff as 
a legitimate requester who does not pose a security risk, his or her 
verification will be valid for the remainder of that calendar year. 
Such a requester is not required to provide detailed information about 
himself or herself with subsequent requests during the calendar year. 
He or she is also not required to file a non-disclosure agreement with 
subsequent requests during the calendar year because the original non-
disclosure agreement will apply to all subsequent releases of CEII.
    (vi) An organization that is granted access to CEII pursuant to 
paragraph (g)(5)(ii) of this section may seek to add additional 
individuals to the non-disclosure agreement within one (1) year of the 
date of the initial CEII request. Such an organization must provide the 
names of the added individuals to the CEII Coordinator and certify that 
notice of each added individual has been given to the submitter. Any 
newly added individuals must execute a supplement to the original non-
disclosure agreement indicating their acceptance of its terms. If there 
is no written opposition within five (5) days of notifying the CEII 
Coordinator and the submitter concerning the addition of any newly 
added individuals, the CEII Coordinator will issue a standard notice 
accepting the addition of these names to the non-disclosure agreement. 
If the submitter files a timely opposition with the CEII Coordinator, 
the CEII Coordinator will issue a formal determination addressing the 
merits of such opposition. If an organization that is granted access to 
CEII pursuant to paragraph (g)(5)(ii) of this section wants to add new 
individuals to its non-disclosure agreement more than one year after 
the date of its initial CEII request, the organization must submit a 
new CEII request pursuant to paragraph (g)(5)(ii) of this section and a 
new non-disclosure agreement for each new individual added.
    (vii) The CEII Coordinator will attempt to respond to the requester 
under this section according to the timing required for responses under 
the FOIA in section 18 CFR 388.108(c).
    (viii) Fees for processing CEII requests will be determined in 
accordance with section 18 CFR 388.109.
    (ix) Nothing in this section should be construed as requiring the 
release of proprietary information, personally identifiable 
information, cultural resource information and other comparable data 
protected by statute or any privileged information, including 
information protected by the deliberative process.
    (h) Duty to protect CEII. Unauthorized disclosure of CEII is 
prohibited.
    (1) To ensure that the Commissioners, Commission employees, and 
Commission contractors protect CEII from unauthorized disclosure, 
internal controls will describe the handling, marking, and security 
controls for CEII.
    (2) Any individual who requests information pursuant to paragraph 
(g)(5) of this section must sign and execute a non-disclosure 
agreement, which indicates the individual's willingness to adhere to 
limitations on the use and disclosure of the information requested. The 
non-disclosure agreement will, at a minimum, require the following: 
CEII will only be used for the purpose for which it was requested; CEII 
may only be discussed with authorized recipients; CEII must be kept in 
a secure place in a manner that would prevent unauthorized access; CEII 
must be destroyed or returned to the Commission upon request; and the 
Commission may audit the Recipient's compliance with the non-disclosure 
agreement.
    (i) Sanctions. Any officers, employees, or agents of the Commission 
who knowingly and willfully disclose CEII in a manner that is not 
authorized under this section will be subject to appropriate sanctions, 
such as removal from the federal service, or possible referral for 
criminal prosecution. Commissioners who knowingly and willfully 
disclose CEII without authorization may be referred to the Department 
of Energy Inspector General. The Commission will take responsibility 
for investigating and, as necessary, imposing sanctions on its 
employees and agents.

[FR Doc. 2016-14761 Filed 7-1-16; 8:45 am]
 BILLING CODE 6717-01-P


