[Federal Register Volume 81, Number 128 (Tuesday, July 5, 2016)]
[Proposed Rules]
[Pages 43557-43567]
[FR Doc No: 2016-14761]

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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<EMAIL_ADDRESS>    Marcos Araus, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426,
(202) 502-8472<EMAIL_ADDRESS>    Mark Hershfield, Office of the General Counsel, Federal Energy
Regulatory Commission, 888 First Street NE., Washington, DC 20426,
(202) 502-8597<EMAIL_ADDRESS>
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

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

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

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)

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

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

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<PHONE_NUMBER> (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>
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).

    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

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

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.

    (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


[Federal Register: March 18, 2009 (Volume 74, Number 51)]
[Notices]
[Page 11629]
[DOCID:fr18mr09-101]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Notice of Petition for Approval; Railroad Safety Program Plan

    Although not required, the Federal Railroad Administration (FRA) is
providing notice that it has received a petition for approval of a
Railroad Safety Program Plan (RSPP) submitted pursuant to Title 49 Code
of Federal Regulations CFR 236.905, of subpart H. The petition is
described below, including the party seeking approval and the requisite
docket number where the petition and any related information may be
found. This document is available for public inspection, however, FRA
is not accepting public comment on the document as this notice is
provided for information only.

Marquette Rail, LLC (Docket Number FRA-2009-0017)

    Marquette Rail, LLC submitted a petition for approval of an RSPP.
The petition, the RSPP, and any related documents have been placed in
the requisite docket and are available for public inspection.
    All documents in the public docket are available for inspection and
copying on the Internet at the docket facility's Web site at http://
www.regulations.gov.
    You may review DOT's complete Privacy Act Statement in the Federal
Register published on April 11, 2000 (Volume 65, Number 70; Pages
19477-78).

    Issued in Washington, DC, on March 12, 2009.
Grady C. Cothen, Jr.
Deputy Associate Administrator for Safety Standards and Program
Development.
 [FR Doc. E9-5840 Filed 3-17-09; 8:45 am]

BILLING CODE 4910-06-P


[Federal Register Volume 82, Number 172 (Thursday, September 7, 2017)]
[Notices]
[Pages 42412-42413]
[FR Doc No: 2017-18323]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Public Notice for Waiver of Aeronautical Land-Use Assurance;
Willow Run Airport, Detroit, Michigan

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of intent of waiver with respect to land.

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SUMMARY: The FAA is considering a proposal to change 3.44 acres of
airport land from aeronautical use to non-aeronautical use and to
authorize the sale of airport property located at Willow Run Airport,
Detroit, Michigan. The aforementioned land is not needed for
aeronautical use.
    The property is located in the southwest corner of the airport. It
is outside of the airport operations area and is currently used as a
Hazardous Waste Landfill. In 1996 the Federal Aviation Administration
released 13.34 acres on this site to accommodate the Landfill. This
proposal will release the remainder of the site. The proposed use will
remain as a Hazardous Waste Landfill.

DATES: Comments must be received on or before October 10, 2017.

ADDRESSES: Documents are available for review by appointment at the FAA
Detroit Airports District Office, Alex Erskine, Program Manager, 11677
South Wayne Road, Suite 107, Romulus, Michigan 48174. Telephone: (734)
229-2927/Fax:<PHONE_NUMBER> and Mr. Kevin C. Clark, Assistant General
Counsel, Wayne County Airport Authority, L.C. Smith Building-Mezzanine,
Detroit, Michigan 48242. Telephone:<PHONE_NUMBER>.
    Written comments on the Sponsor's request must be delivered or
mailed to: Alex Erskine, Program Manager, Federal Aviation
Administration, Detroit Airports District Office, 11677 South Wayne
Road, Suite 107, Romulus, Michigan 48174, Telephone Number: (734) 229-
2927/FAX Number:<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Alex Erskine, Program Manager, Federal
Aviation Administration, Detroit Airports District Office, 11677 South
Wayne Road, Suite 107, Romulus, Michigan 48174, Telephone Number: (734)
229-2927/FAX Number:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: In accordance with section 47107(h) of Title
49, United States Code, this notice is required to be published in the
Federal Register 30 days before modifying the land-use assurance that
requires the property to be used for an aeronautical purpose.
    The property is outside of the airport operations area and is
currently used as a Hazardous Waste Landfill. The property is surplus
property from the U.S. Government. It was initially transferred to the
University of Michigan in 1947. In 1977, the University of Michigan
transferred title of the Willow Run Airport, including this parcel, to
the County of Wayne, Michigan. In 1996 the Federal Aviation
Administration released 13.34 acres on this site to accommodate the
landfill. This proposal will release the remainder of the site. The
proposed use will remain as a Hazardous Waste Landfill. The airport
sponsor is now requesting to transfer title to this property to Ford

Motor Company which is currently operating the landfill.
    This notice announces that the FAA is considering the release of
the subject airport property at the Willow Run Airport, Detroit,
Michigan from federal land covenants, subject to a reservation for
continuing right of flight as well as restrictions on the released
property as required in FAA Order 5190.6B section 22.16. Approval does
not constitute a commitment by the FAA to financially assist in the
disposal of the subject airport property nor a determination of
eligibility for grant-in-aid funding from the FAA.
    Part of the NW \1/4\ and the SW \1/4\ of Section 18, T3S-R8E, Van
Buren Township, Wayne County, Michigan, more particularly described as
follows: Commencing at the NW Corner of Section 18, thence along the
West line of Section 18, S 02[deg]19'10'' E., 2647.93 feet, to the West
\1/4\ Corner of Section 18; thence along the East-West \1/4 \ line of
Section 18, N 88[deg]35'19'' E., 464.50 feet, to the POINT OF BEGINNING
of the parcel to be described; thence along the West line of Willow Run
Airport, the following 2 courses. (1) N 35[deg]26'31'' W., 214.67 feet
and (2) N 08[deg]48'40'' W., 85.44 feet; thence N 48[deg]25'55'' E.,
598.34 feet; thence S 41[deg]34'37'' E., 1103.42 feet; thence S
48[deg]26'41'' W., 21.19 feet; thence S 41[deg]34'42'' E., 39.06 feet;
thence S 48[deg]26'06'' W., 225.00 feet; thence N 41[deg]35'53'' W.,
39.09 feet; thence S 48[deg]26'41'' W., 110.59 feet; thence S
85[deg]05'04'' W., 235.97 feet; thence S 48[deg]25'42'' W., 157.05
feet; thence N 35[deg]24'30'' W., 80.73 feet; thence S 48[deg]28'06''
W., 51.83 feet; thence along the West line of Willow Run Airport, the
following 2 courses. (1) N 06[deg]54'08'' W., 30.40 feet and (2) N
35[deg]26'31'' W., 575.17 feet to the POINT OF BEGINNING, EXCEPTION the
following described parcel. Part of the NW \1/4\ and the SW \1/4\ of
Section 18, T3S-R8E, Van Buren Township, Wayne County, Michigan, more
particularly described as follows: Commencing at the NW Corner of
Section 18, thence along the West line of Section 18, S 02[deg]19'10''
E., 2647.93 feet, to the West \1/4\ Corner of Section 18; thence along
the East-West \1/4\ line of Section 18, N 88[deg]35'19'' E., 509.41
feet, to the POINT OF BEGINNING of the parcel to be described; thence N
35[deg]25'12'' W., 202.94 feet; thence N 48[deg]25'50'' E., 590.22
feet; thence S 41[deg]34'37'' E., 1030.00 feet; thence S 48[deg]26'06''
W., 225.00 feet; thence N 41[deg]35'53'' W., 180.00 feet; thence S
48[deg]25'42'' W., 456.87 feet; thence N 35[deg]24'30'' W., 651.98 feet
to the POINT OF BEGINNING containing 3.44 acres, more or less. Being
subject to any and all easements, reservations or restrictions of
record.

    Issued in Romulus, Michigan, on August 17, 2017.
John L. Mayfield, Jr.,
Manager, Detroit Airports District Office, FAA, Great Lakes Region.
[FR Doc. 2017-18323 Filed 9-6-17; 8:45 am]
 BILLING CODE P