As the one-year anniversary of the terrorist attacks draws near, the Federal Energy Regulatory Commission has proposed changes to its current regulations that would restrict “unfettered general public access” to information about critical energy infrastructure, but still would allow “those with a need for the information,” such as parties to proceedings at FERC, to obtain it.

A notice of proposed rulemaking (NOPR), issued by the agency Thursday, builds on a policy statement issued by FERC in the wake of the Sept. 11 attacks, which required parties seeking sensitive information about critical infrastructure to make requests under the Freedom of Information Act (FOIA). Since then, the Commission has found the “FOIA process is not well suited in the long run for handling most requests” related to critical energy infrastructure information (CEII), given that much of the information that falls within the definition of CEII is exempt from mandatory disclosure under the FOIA, the NOPR said.

The proposed rule seeks to complement existing rights under FOIA, and would offer interested parties — particularly interveners in FERC proceedings, states and landowners — an optional avenue to request CEII documents that might not otherwise be available to them under FOIA. “Obviously, [these] individuals must have access to information to participate meaningfully” in proceedings at FERC, the NOPR said. If turned down, parties could still pursue their requests for CEII data through the FOIA.

The NOPR seeks to limit “easy public access” to documents about licensed and certificated energy facilities, as well as proposed facilities. It would not, however, put limitations on information about the location of critical energy infrastructure, according to Commission staff. Critical infrastructure was defined as facilities involved in production, generation, transportation, transmission or distribution of energy.

The agency NOPR would permit energy facility owners or operators to obtain documents or information about their own facilities without either going through either the FOIA process or the alternative process proposed by FERC.

“Maps would be included in location information. We have a lot of maps we took off after [the Sept. 11 attacks], and a lot of those could be put back into RIMS” to be available to the public, a staff member noted. But “if you have very specific drawings that show specific parts of a facility, not just where the facility [runs], something like that could still be protected possibly,” she said. The NOPR also would restrict reporters’ access to only that CEII data that is available under FOIA.

Unlike with FOIA, which bars inquiries into why information is being sought, the NOPR would permit FERC to ask requesters about their need for and intended use of information being sought. In addition, FERC could condition the release of CEII information on a requester signing a non-disclosure agreement.

The proposed rule also seeks to create a new position of CEII coordinator at FERC who would deal with requests for information, and ultimately determine if information should be disclosed.

The NOPR “attempts to balance the need to protect this critical information against the need to ensure meaningful participation in Commission proceedings,” staff said. FERC seeks comment on the proposed rule within 30 days after it is published in the Federal Register.

©Copyright 2002 Intelligence Press Inc. All rights reserved. The preceding news report may not be republished or redistributed, in whole or in part, in any form, without prior written consent of Intelligence Press, Inc.