18 CFR 388.112(a)(1)

Federal Energy Regulatory Commission
the statement must also contain a general summary of the testimony and a
discussion of whether Commission
records could be produced and used in
lieu of testimony. Any authorization
for testimony will be limited to the
scope of the demand as summarized in
such statement.
(d) Commission records or information which are not part of the public
record will be produced only upon authorization by the Commission.
(e) The Commission or its designee
will consider and act upon subpoenas
under this section with due regard for
statutory restrictions, the Commission’s Rules of Practice and Procedure,
and the public interest, taking into account factors such as applicable privileges including the deliberative process
privilege; the need to conserve the
time of employees for conducting official business; the need to avoid spending the time and money of the United
States for private purposes; the need to
maintain impartiality between private
litigants in cases where a substantial
government interest is not involved;
and the established legal standards for
determining whether justification exists for the disclosure of confidential
information and records.
(f) The Commission authorizes the
General Counsel or the General Counsel’s designee to make determinations
under this section.

WReier-Aviles on DSKGBLS3C1PROD with CFR

§ 388.112 Requests for special treatment of documents submitted to the
Commission.
(a) Scope. (1) Any person submitting a
document to the Commission may request privileged treatment by claiming
that some or all of the information
contained in a particular document is
exempt from the mandatory public disclosure requirements of the Freedom of
Information Act, 5 U.S.C. 552, and
should be withheld from public disclosure.
(2) Any person submitting documents
containing critical energy infrastructure information (CEII) as defined in
§ 388.113 should follow the procedures
specified in this section.
(b) Procedures. A person claiming
that information warrants special
treatment as CEII or privileged must
file a statement requesting CEII or

§ 388.112
privileged treatment for some or all of
the information in a document, and the
justification for special treatment of
the information, in accordance with
filing procedures posted on the Commission’s
Web
site
at
http://
www.ferc.gov.
(c) Effect of privilege or CEII claim. (1)
For documents filed with the Commission:
(i) The Secretary of the Commission
will place documents for which privileged or CEII treatment is sought in
accordance with paragraph (b) of this
section in a nonpublic file while the request for privileged or CEII treatment
is pending. By placing the documents
in a nonpublic file, the Commission is
not making a determination on any
claim of privilege or CEII status. The
Commission retains the right to make
determinations with regard to any
claim of privilege or CEII status, and
the discretion to release information as
necessary to carry out its jurisdictional responsibilities.
(ii) The Secretary of the Commission
will place the request for privileged or
CEII treatment and a copy of the original document without the privileged or
CEII information in a public file while
the request is pending.
(2) For documents submitted to Commission staff. The notification procedures
of paragraphs (d), (e), and (f) of this
section will be followed by staff before
making a document public.
(d) Notification of request and opportunity to comment. When a FOIA or
CEII requester seeks a document for
which privilege or 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 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,

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§ 388.113

18 CFR Ch. I (4–1–11 Edition)

or any other appropriate official to
deny a claim of privilege, in whole or
in part, or to make a limited release of
CEII, will be given to any person claiming that the information is privileged
or CEII 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 or CEII requester.
(f) Notification of suit in Federal courts.
When a FOIA requester brings suit to
compel disclosure of information for
which a person has claimed privileged
treatment, the Commission will notify
the person who submitted the documents of the suit.

WReier-Aviles on DSKGBLS3C1PROD with CFR

[Order 630, 68 FR 9869, Mar. 3, 2003, as amended by Order 630–A, 68 FR 46459, Aug. 6, 2003;
72 FR 63985, Nov. 14, 2007; Order 737, 75 FR
43405, July 26, 2010]

§ 388.113 Accessing critical energy infrastructure information.
(a) Scope. This section governs access
to critical energy infrastructure information (CEII). The rules governing
submission of CEII are contained in 18
CFR 388.112(b). The Commission reserves the right to restrict access to
previously filed documents as well as
Commission-generated documents containing CEII.
(b) Purpose. The procedures in this
section are available at the requester’s
option as an alternative to the FOIA
procedures in § 388.108 where the information requested is exempted from disclosure under the FOIA and contains
CEII.
(c) Definitions. For purposes of this
section:
(1) 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; and
(iv) Does not simply give the general
location of the critical infrastructure.

(2) 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) Accessing critical energy infrastructure information. (1) An Owner/operator
of a facility, including employees and
officers of the owner/operator, may obtain CEII relating to its own facility
directly from Commission staff without going through the procedures outlined in paragraph (d)(3) 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.
(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 (d)(3) of this section. Any
Commission employee at or above the
level of division director or its equivalent may rule on federal agency representatives’ requests for access to
CEII.
(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 (d)(4) of this section. A
landowner must provide Commission
staff with proof of his or her property
interest in the vicinity of a project.
(4) If any other requester 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: 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

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