[Federal Register: October 3, 2006 (Volume 71, Number 191)]
[Proposed Rules]               
[Page 58325-58330]
                      

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 388

[Docket No. RM06-23-000]

 
Critical Energy Infrastructure Information

Issued September 21, 2006.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Energy Regulatory Commission is proposing to 
revise its regulations to: Allow an annual certification for repeat 
requesters of Critical Energy Infrastructure Information (CEII); allow 
an authorized representative to file an executed non-disclosure 
agreement; make the Freedom of Information Act (FOIA), 5 U.S.C. 552 
(2000) fee schedule applicable to CEII requests; provide CEII appeal 
rights that are compatible with FOIA appeal rights; grant landowners 
the right to obtain alignment sheets directly from Commission staff; 
and abolish the non-Internet public category of information. This 
notice of proposed rulemaking also seeks comments on the CEII portions 
of various forms and reports submitted to the Commission. The proposed 
rule offers a more efficient process for handling CEII requests and 
provides submitters of CEII with guidance on what materials the 
Commission accepts as containing CEII.

DATES: Comments are due November 2, 2006. Reply Comments are due 
November 17, 2006.

ADDRESSES: You may submit comments, identified by Docket No. RM06-23-
000, by one of the following methods:
     Agency Web site: http://ferc.gov. Follow the instructions 

for submitting comments via the eFiling link found in the Comment 
Procedures Section of the preamble.
     Mail: Commenters unable to file comments electronically 
must mail or hand deliver an original and 14 copies of their comments 
to: Federal Energy Regulatory Commission, Secretary of the Commission, 
888 First Street, NE., Washington, DC 20426. Please refer to the 
Comment Procedures Section of the preamble for additional information 
on how to file paper comments.

FOR FURTHER INFORMATION CONTACT: Teresina A. Stasko, Office of the 
General Counsel, GC-13, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426; 202-502-8317.

SUPPLEMENTARY INFORMATION:

Introduction

    1. In the three years since the issuance of Order No. 630, the 
Commission has continually monitored and evaluated the effectiveness of 
the Critical Energy Infrastructure Information (CEII) process. 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 46456 (Aug. 6, 2003), FERC Stats. & Regs. ] 31,147 (2003). 
The most recent review indicates that changes are needed to assure the 
rules work in the manner intended. As explained below, the Commission 
seeks comments on: (1) Revisions to its regulations regarding CEII 
requests; (2) the limited portions of various forms and reports the 
Commission now defines as containing CEII; and (3) its proposal to 
abolish the non-Internet public (NIP) designation. In a final rule and 
notice of regulatory changes issued concurrently with this notice of 
proposed rulemaking, the Commission: (1) Makes the following changes to 
its regulations (a) the definition of CEII is clarified, and (b) 
requesters are required to submit executed non-disclosure agreements 
(NDA) with their requests; (2) provides notice that, for CEII requests, 
the notice and opportunity to comment on a request will be combined 
with the notice of release; and (3) reiterates its requirement that 
submitters segregate CEII from other information and file as CEII only 
information which

[[Page 58326]]

truly warrants being kept from public access.
    2. The proposed rule (1) offers a more efficient process for 
handling CEII requests and (2) provides submitters with guidance on 
what materials the Commission accepts as containing CEII.

Background

    3. The Commission began its efforts with respect to CEII shortly 
after the attacks of September 11, 2001. See Statement of Policy on 
Treatment of Previously Public Documents, 66 FR 52917 (Oct. 18, 2001), 
97 FERC ] 61,130 (2001). The Commission's initial step was to remove 
from its public files and Internet page documents such as oversized 
maps that were likely to contain detailed specifications of facilities 
licensed or certified by the Commission, directing the public to 
request such information pursuant to the Freedom of Information Act 
(FOIA) process detailed in 5 U.S.C. 552 (2000) and in the Commission's 
regulations at 18 CFR 388.108 (2001). In September 2002, the Commission 
issued a notice of proposed rulemaking regarding CEII, which proposed 
an expanded definition of CEII to include detailed information about 
proposed facilities as well as those already licensed or certificated 
by the Commission. Notice of Rulemaking and Revised Statement of 
Policy, 67 FR 57994 (Sept. 13, 2002); FERC Stats. & Regs. ] 32,564 
(2002). The Commission issued its final rule on CEII on February 21, 
2003, defining CEII to include information about proposed facilities, 
and to exclude information that simply identified the location of the 
infrastructure. Order No. 630, 68 FR 9857, FERC Stats. & Regs. ] 
31,140. After receiving a request for rehearing on Order No. 630, the 
Commission issued Order No. 630-A on July 23, 2003, denying the request 
for rehearing, but amending the rule in several respects. Order No. 
630-A, 68 FR 46456, FERC Stats. & Regs. ] 31,147. Specifically, the 
order on rehearing made several minor procedural changes and 
clarifications, added a reference in the regulation regarding the 
filing of NIP information, a term first described in Order No. 630, and 
added the aforementioned commitment to review the effectiveness of the 
new process after six months. Also on July 23, 2003, the Commission 
issued Order No. 643, which revised the Commission's regulations to 
require companies to make certain information available directly to the 
public under certain circumstances. These revisions were necessary to 
conform the regulations to Order No. 630. Order No. 643, 68 FR 52089, 
FERC Stats. & Regs. ] 31,149 (2003). In Order No. 662, the Commission 
modified its CEII regulations to ease the burden on agents of owners or 
operators of energy facilities that are seeking CEII relating to the 
owner/operator's own facility. The rule also simplified Federal 
agencies' access to CEII. Order No. 662, 70 FR 37031, FERC Stats. & 
Regs. ] 31,189 (2005).

Proposed Revisions to Regulations

A. Section 388.113--Accessing Critical Energy Infrastructure 
Information

    4. The Commission proposes to revise Sec.  388.113 of its 
regulations to allow an annual certification for repeat requesters, 
i.e., repeat requesters would not be required to file a new non-
disclosure agreement (NDA) with each subsequent request. The current 
regulation sets forth a process where a requester provides to the CEII 
Coordinator detailed information about the requester and his or her 
need for the information, which the CEII Coordinator uses in 
determining whether to release the information. The proposed regulation 
would provide that a requester provide such detailed information with 
an initial request. Once the CEII Coordinator determines that the 
requester does not pose a security risk, the requester would not have 
to provide such detailed information with subsequent requests during 
the calendar year. This would decrease the processing time of requests 
as Commission staff would not have to verify the requester with 
subsequent requests. It is important to note that the CEII Coordinator 
would continue to carefully consider submitters' responses that 
identify security risks associated with releasing CEII to particular 
requesters.
    5. With each subsequent request, the requester would still be 
required to provide detailed information as to why he or she needs the 
information. Such need would be implicated, for example, if the 
requester is an intervener in a proceeding or a landowner affected by a 
proposed facility. Such individuals may require access to information 
in order to participate meaningfully in the proceeding. The requester 
would also be required to attest that the information supplied with an 
initial request has not changed.
    6. The Commission also proposes to revise Sec.  388.113 of its 
regulations to allow an authorized representative of an organization to 
execute an NDA on behalf of all that organization's employees. The 
Commission would verify an organization and require that the 
organization verify its own users. In the event of an unauthorized 
disclosure of CEII by a member or employee of the organization, the 
Commission will hold the authorized representative and the entity 
accountable and take all action available to the Commission to deal 
with the violation. Repeat requests would be subject to the annual 
certification described above.
    7. The Commission further proposes to revise Sec.  388.113 of its 
regulations to include a fee provision. Commission staff currently 
expends valuable time and resources searching, reviewing, and copying 
documents responsive to CEII requests. The current regulations would be 
modified to follow the fee schedule used for FOIA requests.
    8. Another regulatory change the Commission proposes is to revise 
18 CFR Sec.  388.113(d)(3)(ii). Currently, the CEII Coordinator, or his 
or her designee, issues a delegated order in response to a CEII 
request. Section 388.113(d)(3)(ii) provides that this decision is 
subject to rehearing pursuant to Sec.  375.713 of the Commission's 
regulations. The Commission proposes that CEII determinations no longer 
be subject to rehearing. As explained below, CEII requests would be 
processed in a manner similar to other requests for non-public 
information.
    9. The September 11, 2001 attacks prompted the Commission to remove 
from easy public access previously public documents that detail the 
specifications of proposed or existing energy facilities licensed or 
certificated by the Commission. Before the attacks, the Commission was 
never faced with such security issues. Therefore, in these early days 
of CEII, the Commission sought to reconcile its regulatory 
responsibilities under its enabling statutes and Federal environmental 
laws with the need to protect the safety and well being of American 
citizens from attacks on our nation's energy infrastructure. To that 
end, the Commission allowed the CEII Coordinator, or her designee, to 
make CEII determinations by delegated orders, which are subject to 
rehearing.
    10. In light of over three years experience processing CEII 
requests, the Commission now finds that CEII determinations need not be 
made by delegated orders. In making this determination, the Commission 
is in no way compromising the security of the information or unduly 
restricting the public access to it.
    11. Under existing procedures, a request for rehearing concerning a 
CEII determination is reviewed by the entire Commission and is then 
subject to review by the appropriate appellate court. See 18 CFR 
385.713 (2006). Other

[[Page 58327]]

than CEII requests, when the Commission makes a determination regarding 
the release of non-public information, it is not subject to rehearing. 
For example, by statute, when the agency informs a requester of non-
public information, i.e. a FOIA requester, of the reason(s) for 
withholding information, the requester is limited to filing an 
administrative appeal to the Commission's General Counsel, with no 
right to a Commission rehearing. This promotes judicial economy and 
preserves Commission resources. If the requester is dissatisfied with 
the General Counsel's determination, the requester must seek a de novo 
review in a U.S. District Court prior to going before an appellate 
court. 18 CFR 388.108(c)(1), 388.110 (2006).
    12. The Commission emphasizes that CEII, like other non-public 
documents, is maintained in the Commission's non-public files pursuant 
to Sec.  388.107 of its regulations. The Commission's determination to 
place CEII or other non-public information in its non-public files or 
to release such information need not be done by a Commission order 
which allows the right to rehearing. Rather, a release of CEII should 
be processed similarly to the release of other non-public information 
specified in Sec.  388.107 of its regulations. Therefore, the 
Commission proposes that the CEII Coordinator, or her designee, issue a 
letter providing notice of a determination to grant or deny a CEII 
request. As CEII by definition is exempt from release under the FOIA, 
the Commission's determination to release CEII is a voluntary one that 
is analogous to a discretionary release under the FOIA. Accordingly, a 
dissatisfied CEII requester may seek the information pursuant to the 
FOIA and may ultimately pursue a remedy in district court pursuant to 
the court's jurisdiction under the FOIA. A dissatisfied submitter may 
seek injunctive relief similar to that sought in a reverse FOIA 
action.\1\ Thus, even though the Commission would no longer subject 
CEII determinations to rehearing, comparable administrative and 
judicial remedies remain available.
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    \1\ The Court of Appeals for the District of Columbia Circuit 
has defined a ``reverse'' FOIA action as one in which the 
``submitter of information--usually a corporation or other business 
entity'' that has supplied an agency with ``data on its policies, 
operations or products--seeks to prevent the agency that collected 
the information from revealing it to a third party in response to 
the latter's FOIA request.'' CNA Fin. Corp. v. Donovan, 830 F.2d 
1132, 1133 n.1 (D.C. Cir. 1987).
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    13. In revised Sec.  388.113(d), the Commission proposes to grant 
access to alignment sheets filed pursuant to Sec.  380.12(3) of the 
Commission's regulations to landowners for the route across or in the 
vicinity of their property. Such landowners would be able to obtain 
alignment sheets from the CEII Coordinator without submitting an NDA. 
Thus, landowners will not be restricted from discussing the information 
shown in the detailed alignment sheets with others even though the 
detailed alignment sheets are CEII. The Commission encourages 
landowners to first request this information from applicants.

B. Section 388.112--Requests for Special Treatment of Documents 
Submitted to the Commission

    14. By way of background, in Order No. 630, the Commission 
explained that it considers the following types of gas and hydropower 
location information outside the definition of CEII: (1) USGS 7.5-
minutes topographic maps showing the location of pipelines, dams, or 
other aboveground facilities; (2) alignment sheets showing the location 
of pipeline and aboveground facilities, right of way dimensions, and 
extra work areas; (3) drawings showing site or project boundaries, 
footprints, building locations and reservoir extent; and (4) general 
location maps. In order to alleviate concerns about making this 
information so easily available, the Commission instructed filers to 
segregate this non-CEII location information into a separate volume or 
appendix, clearly label it NIP, and submit it with instructions that it 
not be placed on the Internet. The information remained, and still 
remains, publicly available through the Public Reference Room.
    15. The NIP designation has resulted in much confusion, with many 
individuals utilizing the CEII or the FOIA procedures in an effort to 
obtain NIP information. The Commission proposes to abolish the NIP 
designation. The Commission has concluded that there is little to be 
gained by protecting information that can be gleaned from a visual 
inspection of the facility, or that is otherwise easily attainable from 
other sources, such as the United States Geological Survey or 
commercial mapping firms. See 67 FR 57994, 58000. Most of the 
information designated as NIP is readily available on the Internet. For 
companies that currently file maps showing simply the location of 
pipeline and aboveground facilities as NIP, they would file these 
documents as public. For companies that file detailed alignment sheets 
pursuant to Sec.  380.12(c)(3) of the Commission's regulation, they 
would all be filed as CEII. We note that this proposed change would be 
prospective and any documents currently filed as NIP would retain that 
designation.

Proposed Revisions to CEII Designation for Information Collected

    16. The CEII process was not intended as a mechanism for companies 
to withhold from public access information that does not pose a risk of 
attack on the energy infrastructure. Therefore, in an effort to achieve 
proper designation while avoiding misuse of the CEII designation, the 
Commission requires submitters to segregate public information from 
CEII and to file as CEII only information which truly warrants being 
kept from ready public access. To this end, the Commission emphasizes 
that the Commission's regulation at 18 CFR 388.112(b)(1) requires that 
submitters provide a justification for CEII treatment. The way to 
properly justify CEII treatment is by describing the information for 
which CEII treatment is requested and explaining the legal 
justification for such treatment.
    17. The Commission retains its concern for CEII filing abuses and 
will take action against applicants or parties who knowingly misfile 
information as CEII, including rejection of an application where 
information is mislabeled as CEII. The Commission offers the following 
proposals on how various types of documents should be filed. We note 
that these proposals are for prospective filings. All documents 
currently filed at the Commission will retain their current 
designations. The Commission directs the Director of the Office of 
External Affairs to post on the Commission's Web site, from time to 
time, clarifying guidelines regarding CEII.

A. Guidelines for Filing Resource Report 13

    18. These proposed guidelines provide instructions on how to file 
Resource Report 13. In the Commission's experience, Resource Report 13 
contains public information, CEII, and privileged information. It is 
imperative that the information submitted be filed in its proper 
designation. Pursuant to 388.112(b) of the Commission's regulations, 
these designations must be clearly labeled and filed as separate 
volumes. The Commission emphasizes that submitters must segregate 
public information, CEII, and privileged information and file them in 
separate volumes. Further, submitters must only file as CEII or 
privileged information which truly warrants exemption from ready public 
access.

[[Page 58328]]

1. Public
    19. The filing of Resource Report 13 should include a public volume 
for posting on eLibrary. In general, narratives such as descriptions of 
facilities and processes are public. However, if there are specific 
engineering details or design details of a critical infrastructure in 
narrative form, the information may be CEII or privileged. Examples of 
public aspects of Resource Report 13 include design, engineering, and 
operating philosophies, as well as general descriptions of hazard 
detection and control.
2. CEII
    20. Only limited information meets the CEII category and should be 
filed as such. CEII only includes specific engineering and detailed 
design information about liquefied natural gas facilities, components, 
tanks, and systems. Examples of CEII include: Detailed piping and 
instrumentation diagrams; equipment and tank detail drawings; and 
detailed hazard detection and control location specifics.
3. Privileged
    21. In general, manufacturer's proprietary or business confidential 
design information, and cultural resource reports are examples of 
privileged documents. Privileged documents are generally documents that 
are exempt from release pursuant to an act of Congress. For example, 
cultural resources may be exempt from release pursuant to the National 
Historic Preservation Act and should be filed as privileged. Also, 
material which a submitter can justify as exempt from public release 
pursuant to FOIA exemption 4 should be filed under this criterion. In 
order to qualify for Exemption 4 protection, the information must be 
(1) commercial or financial, (2) obtained from a person, and (3) 
privileged or confidential. Generally, in order to be ``confidential'' 
for purposes of Exemption 4, disclosure of the information must either 
impair the government's ability to obtain similar information in the 
future, or cause substantial harm to the competitive position of the 
submitter of the information. See National Parks & Conservation Ass'n 
v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).

B. Guidelines for Filing Natural Gas Pipeline Flow Diagrams and 
Associated Information

    22. These proposed guidelines provide instructions on how to file 
natural gas pipeline flow diagrams and associated information including 
the diagrams filed in Exhibits G and G-1 of pipeline certificate 
applications, Exhibit V of abandonment applications, FERC Form 567, and 
other flow diagrams submitted for the analysis of gas pipeline 
applications.
    23. In general, natural gas pipeline flow diagrams are considered 
CEII. However, supporting information submitted with these flow 
diagrams often contains information that should be public. In the 
Commission's experience, information filed with the flow diagrams 
contains public information, CEII, and privileged information. Again, 
it is crucial that the information submitted be filed in its proper 
designation and in separate, clearly labeled volumes. See 18 CFR 
388.112(b) (2006).
1. Public
    24. In general, narratives such as descriptions of facilities and 
processes are public. However, if there are specific engineering 
details and design details of a critical infrastructure in narrative 
form, the information may be CEII or privileged. Examples of public 
information include design assumptions, engineering and operating 
philosophies, most design specifications of equipment and pipelines, 
and narrative descriptions of pipeline operations.
2. CEII
    25. CEII only includes specific engineering and detailed design 
information about pipeline facilities, components, and equipment. 
Examples of CEII include detailed natural gas flow diagrams filed in 
Exhibits G and G-1 of pipeline certificate applications, Exhibit V of 
abandonment applications, and FERC Form No. 567. Also, pipeline 
computer simulation models may be considered CEII unless they contain 
proprietary or business confidential information, in which case they 
should be filed as privileged.
3. Privileged
    26. In general, documents containing manufacturer's proprietary or 
business confidential design information are examples of privileged 
documents. Material which a submitter can justify as exempt from public 
release pursuant to FOIA exemption 4 should be filed under this 
criterion.

C. Guidelines for Filing Documents Pertaining to the Commission's 
Division of Dam Safety and Inspections

    27. These proposed guidelines provide further instructions on how 
to file documents relating to hydropower projects with the Commission's 
Division of Dam Safety and Inspections (D2SI). Some D2SI documents 
contain only public information and some only CEII. In general, D2SI 
documents are not filed with a claim of privilege.
1. Public
    28. In general, narratives such as descriptions of facilities and 
processes are public. However, if there are specific engineering 
details and design details of a critical infrastructure in narrative 
form, the information may be CEII or privileged. Examples of public 
information include general design, engineering, and operating 
philosophies.
2. CEII
    29. Only limited information meets this category and should be 
filed as CEII. CEII only includes engineering, security, and detailed 
design information about proposed or existing critical infrastructure. 
Examples of CEII include detailed drawings and specifications, 
numerical analyses in inspection reports, dam safety and technical 
reports, emergency action plans, hazard classification, construction 
design reports, public safety plans, and extreme event reports.

D. Guidelines for Filing Documents Pertaining to the Commission's 
Division of Hydropower Licensing

    30. These proposed guidelines provide further instructions on how 
to file documents relating to applications to license hydropower 
projects with the Commission's Division of Hydropower Licensing (DHL). 
In hydropower licensing, only Exhibit F is considered to be CEII 
material. Exhibit F consists of design drawings of critical energy 
infrastructure information and a Supporting Design Report. Exhibit F is 
contained in applications for hydropower licenses. All other DHL 
documents contain only public information. In general, DHL documents 
are not filed with a claim of privilege.

E. Guidelines for Filing FERC Form 715 Annual Transmission Planning and 
Evaluation Report

    31. These proposed guidelines provide further instructions on how 
to file parts of the FERC Form 715, Annual Transmission Planning and 
Evaluation Report (Form 715). The Form 715 is comprised of the 
following parts: Part 1, Identification and Certification; Part 2, 
Power Flow Base Cases; Part 3, Transmitting Utility Maps and Diagrams; 
Part 4, Transmission Planning Reliability Criteria; Part 5, 
Transmission Planning Assessment Practices; and Part 6, Evaluation of 
Transmission System

[[Page 58329]]

Performance. Some parts of the Form 715 contain public information and 
some contain CEII. In general, Form 715 does not contain privileged 
information.
1. Public
    32. In general, narratives such as descriptions of facilities and 
processes are public. The information found in Part 1 contains the 
filer's identification and contact information. This information should 
be filed publicly. Similarly, Parts 4 and 5 contain generic criteria 
used in evaluating and testing the filer's system. This generic 
information does not qualify as CEII and should be filed publicly.
2. CEII
    33. CEII only includes engineering, security, and detailed design 
information about proposed or existing infrastructure. Information in 
Part 2 provides an electrical model and analysis of the filer's actual 
transmission system. Part 3 provides detailed one-line diagrams and 
geographic location and identification of all system components. Part 6 
provides details of potential weaknesses of the filer's transmission 
system including possible solutions. These three parts contain CEII and 
should be filed as such.

Information Collection Statement

    34. The Office of Management and Budget's (OMB's) regulations 
require that OMB approve certain information collection requirements 
imposed by agency rule. See 5 CFR 1320.12 (2006). This notice of 
proposed rulemaking does not impose any additional information 
collection requirements. Therefore, the information collection 
regulations do not apply to this final rule.

Environmental Analysis

    35. 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. Order No. 
486, Regulations Implementing the National Environmental Policy Act, 52 
FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ] 
30,783 (1987). The Commission has categorically excluded certain 
actions from this requirement as not having a significant effect on the 
human environment. Included in the exclusions are rules that are 
clarifying, corrective, or procedural or that do not substantially 
change the effect of the regulations being amended. 18 CFR 
380.4(a)(2)(ii). This notice of proposed rulemaking is procedural in 
nature and therefore falls under this exception; consequently, no 
environmental consideration is necessary.

Regulatory Flexibility Act Certification

    36. 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.\2\ Most companies to which the rules proposed 
herein would apply, if finalized, would not fall within the RFA's 
definition of small entity.\3\ Consequently, the rules proposed herein, 
if finalized, will not have a ``significant economic impact on a 
substantial number of small entities.''
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    \2\ 5 U.S.C. 603 (2000).
    \3\ 5 U.S.C. 601(3)(2000), citing to section 3 of the Small 
Business Act, 15 U.S.C. 632 (2000). Section 3 of the Small Business 
Act defines a ``small business concern'' as a business that is 
independently owned and operated and that is not dominant in its 
field of operation. 15 U.S.C. 632 (2000). The Small Business Size 
Standards component of the North American Industry Classification 
System (NAICS) defines, for example, a small electric utility as one 
that, including its affiliates, is primarily engaged in the 
generation, transmission, and/or distribution of electric energy for 
sale and whose total electric output for the preceding fiscal year 
did not exceed four million MWh. NAICS defines a natural gas 
pipeline company as one that transports natural gas and whose annual 
receipts (total income plus cost of goods sold) did not exceed $6.5 
million dollars for the preceding year. 13 CFR 121.201.
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Public Comments

    37. 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 on or before November 2, 2006. Comments 
must refer to Docket No. RM06-23-000, and must include the commenter's 
name, the organization he or she represents, if applicable, and his or 
her address.
    38. Comments may 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, and commenters may 
attach additional files with supporting information in certain other 
file formats. Commenters filing electronically do not need to make a 
paper filing. Commenters who are not able to file comments 
electronically must send an original and 14 copies of their comments 
to: Federal Energy Regulatory Commission, Secretary of the Commission, 
888 First Street, NE., Washington, DC 20426.
    39. 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 notice of 
proposed rulemaking are not required to serve copies of their comments 
on other commenters.

Document Availability

    40. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 

Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426.
    41. From FERC's Home Page on the Internet, this information is 
available in the Commission's document management system, 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 excluding the 
last three digits of this document in the docket number field.
    42. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours. For assistance, please contact FERC 
Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at 
[email protected]), or the Public Reference Room at 202-502-

8371, TTY 202-502-8659 (e-mail at [email protected]).

List of subjects in 18 CFR Part 388

    Confidential business information; Freedom of information.

    By direction of the Commission.
Magalie R. Salas,
Secretary.
    In consideration of the foregoing, the Commission proposes to amend 
Part 388, Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 388--INFORMATION AND REQUESTS

    1. The authority citation for part 388 continues to read as 
follows:

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

    2. Revise Sec.  388.109(b) introductory text to read as follows:


Sec.  388.109  Fees for record requests.

* * * * *
    (b) Fees for records not available through the Public Reference 
Room

[[Page 58330]]

(FOIA or CEII requests). The cost of duplication of records not 
available in the Public Reference Room will depend on the number of 
documents requested, the time necessary to locate the documents 
requested, and the category of the persons requesting the records. The 
procedures for appeal of requests for fee waiver or reduction are 
provided in Sec.  388.110.
* * * * *
    3. In Sec.  388.112, paragraph (a)(3) is removed and paragraph (b) 
is revised to read as follows:


Sec.  388.112  Requests for special treatment of documents submitted to 
the Commission.

* * * * *
    (b) Procedures. A person claiming that information warrants special 
treatment as CEII or privileged must file:
    (1) A written statement requesting CEII or privileged treatment for 
some or all of the information in a document, and the justification for 
special treatment of the information; and
    (2) The following, as applicable:
    (i) An original plus the requisite number of copies of the public 
volume filed and marked in accordance with instructions issued by the 
Secretary;
    (ii) An original plus two copies of the CEII volume, if any, filed 
and marked in accordance with instructions issued by the Secretary; and
    (iii) An original only of the privileged volume, if any, filed and 
marked in accordance with instructions issued by the Secretary.
* * * * *
    4. Amend Sec.  388.113 by redesignating paragraph (d)(3) as 
paragraph (d)(4), by adding new paragraph (d)(3), revising redesignated 
paragraphs (d)(4)(i) and (d)(4)(ii), redesignating paragraph 
(d)(4)(iii) as paragraph (d)(4)(iv), and adding new paragraphs 
(d)(4)(iii) and (e) to read as follows:


Sec.  388.113  Accessing critical energy infrastructure information.

* * * * *
    (d) * * *
    (3) A landowner whose property is crossed by or in the vicinity of 
a project may received detailed alignment sheets containing CEII 
directly from the CEII Coordinator without submitting a non-disclosure 
agreement as outlined in paragraph (d)(4) of this section. A landowner 
must provide the CEII Coordinator with proof of his or her property 
interest in the vicinity of a project.
    (4) * * *
    (i) File a signed, written request with the Commission's CEII 
Coordinator. The request must contain the following: Requester's name 
(including any other name(s) which the requester has used and the dates 
the requester used such name(s)), date and place of birth, title, 
address, and telephone number; the name, address, and telephone number 
of the person or entity on whose behalf the information is requested; a 
detailed statement explaining the particular need for and intended use 
of the information; and a statement as to the requester's willingness 
to adhere to limitations on the use and disclosure of the information 
requested. Unless otherwise provided in paragraph (d)(3) of this 
section, a requester must also file an executed non-disclosure 
agreement. A requester is also requested to include his or her social 
security number for identification purposes. 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 the requester agrees to be bound by a non-
disclosure agreement which will be applied to all individuals who 
access to the CEII.
    (ii) Once 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.
    (iii) 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 with subsequent requests during the calendar year. The 
requester also is not required to file an NDA with subsequent requests 
during the calendar year.
* * * * *
    (e) Fees for processing CEII requests will be determined in 
accordance with Sec.  388.109.

[FR Doc. E6-15822 Filed 10-2-06; 8:45 am]

BILLING CODE 6717-01-P