The Federal Energy Regulatory Commission last week voted out a final rule restricting the general public’s easy access to sensitive information about critical energy infrastructure information (CEII). At the same time, however, the agency established an optional process for the public and other participants in FERC proceedings to request the data that might otherwise be unavailable on FERC’s web site and under the Freedom of Information Act (FOIA).

Information about the “general location” of pipeline, transmission, distribution, generation and production facilities still will be available to the public under the final rule, but access to more detailed data — diagrams of valve and piping facilities, or flow diagrams — might not be as accessible if the party seeking CEII information cannot justify the need for the data to FERC, a staff member said [PL02-1].

This is at odds with the FOIA process, which bars the government from making inquiries into why information is being sought.

The rule sets up an alternative process that would allow participants in FERC proceedings (such as landowners) to request certain categories of CEII that might be off-limits to them under the FOIA. It further creates the position of CEII coordinator, who would act on public requests for information about CEII. Parties seeking certain CEII data would file requests at the Commission, and would be required to sign non-disclosure agreements.

The Commission proposed the alternative process for requesting documents, given that much of the information that falls with the definition of CEII is exempt from mandatory disclosure under the FOIA.

The final rule mirrors the notice of proposed rulemaking (NOPR) addressing CEII, which was issued last summer. FERC has defined CEII as those existing or proposed facilities, which if incapacitated or destroyed by a terrorist or saboteur, “would negatively affect security, economic security, public health or safety, or any combination of those matters.”

The final rule takes effect 30 days after publication in the Federal Register.

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