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FERC Revises Its Rules on Critical Energy Infrastructure Information Effective November 2006.

Article Excerpt
The Federal Energy Regulatory Commission ("FERC") issued a Final Rule1 and a Notice of Proposed Rulemaking2 on September 21, 2006, to modify its regulations governing Critical Energy Infrastructure Information ("CEII").

CEII is information on proposed or existing energy infrastructure that is restricted from mandatory public disclosure under the Freedom of Information Act ("FOIA")3 because it contains detailed information that could be useful in planning an attack on energy infrastructure, such as electric transmission lines, natural gas pipelines, and liquefied natural gas ("LNG") import terminals.4 FERC first implemented regulations restricting public access to CEII shortly after the terrorist attacks on September 11, 2001. Since that time, the regulations have undergone a number of changes, including amendments in February 2003 to define CEII to include information on proposed facilities, in addition to licensed or certificated facilities, and to exclude information that simply provides the location of the infrastructure.

Final Rule - Order No. 683

With Order No. 683 (or the Final Rule), FERC clarified the definition of CEII to exclude information that FERC never intended to include. FERC also made procedural changes to simplify the procedures for obtaining access to CEII without increasing vulnerability of the energy infrastructure. Order No. 683 becomes effective on November 2, 2006.

The Final Rule Clarifies the CEII Definition to Focus on Specific Engineering, Vulnerability, or Detailed Design Information. In an effort to curtail what FERC views as an overutilization of the CEII designation, Order No. 683 attempts to clarify the level of detail necessary to qualify information on the location or design of infrastructure as CEII. The clarification is made by adding the following language, noted in italics, to the definition of CEII, 18 C.F.R. s. 388.113(c)(1):

Critical energy infrastructure information means specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure that:

Relates details about the production, generation, transportation, transmission, or distribution of energy;

Could be useful to a person in planning an attack on critical infrastructure;

Is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552; and

Does not simply give the general location of the critical infrastructure.5

Order No. 683 also clarifies that "narratives such as the descriptions of facilities and processes are generally not CEII unless they describe specific engineering and design details of critical infrastructure."6

Non-Disclosure Agreement Requirement Added. The Final Rule implements two procedural changes related to processing CEII requests. To minimize delay in processing CEII requests,...