On March 3, 2003, the Federal Energy Regulatory Commission (FERC) published in the Federal Register its final rule restricting access to critical energy infrastructure information (CEII) and establishing new procedures outside of the Freedom of Information Act (FOIA) for requesting access. FERC began this process in response to the terrorist acts committed on September 11, 2001, and published its Notice of Proposed Rulemaking on September 13, 2002, to obtain public comments. The final rule makes very few substantive changes to the extremely restrictive policy implemented in 2001 shortly after the terrorist attacks. The final rule notes the numerous objections to the policy raised by public interest groups but uniformly ignores the substance of these comments claiming that they “reflect a fundamental misunderstanding of this rulemaking.” While the final rule provides more detail on the definition of critical infrastructure information it is still overly vague and expansive. FERC notes that proposed facilities, as well as projects or portions of projects, are explicitly covered by the new rule. Specifically critical energy infrastructure information is defined as information about proposed or existing critical infrastructure that:

• Relates to 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 location of the critical infrastructure.

The rule goes on to define critical infrastructure to be “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.” The new FERC establishes and empowers a new position, the Critical Energy Infrastructure Information Coordinator, to handle requests for CEII and determine what information qualifies as CEII. Those interested in obtaining CEII must submit a request to the CEII Coordinator explaining what information they want, who they are, why they want it and what they plan to do with the information if they were to obtain it. The final rule allows for the possibility that a requestor may be required to sign an agreement of non-disclosure in order to obtain access to the information. FERC claims that only information that would not be available to anyone under the Freedom of Information Act (FOIA) can qualify for CEII status. However, much, if not all, of the information that FERC considers CEII was publicly available online, in reading rooms and through FOIA before September 11, 2001. However the agency claims that the previous availability status of information is not relevant to its current decision. The agency includes an appendix which details FERC's new interpretations of FOIA exemptions to justify the new judgment to make that information unavailable under FOIA. Therefore, FERC claims in the final rule that these new restrictions on vast amounts of information represent an additional level of access to information since previously the agency only had to respond to FOIA requests. According to the final rule companies will significantly alter the way in which they submit information to FERC as the companies themselves are responsible for labeling all CEII. The rule allows companies also to declare portions of required submissions CEII and restrict them. The final rule also adds a process under which companies that submit information labeled CEII will be notified and allowed to comment when a request for the information is received by FERC. Companies will also receive notice and an opportunity to comment prior to a release of any information that was submitted with a CEII label. These procedures provide corporations with undue influence and opportunity to manipulate a process that is supposed to ensure the public’s right to know. OMB Watch will be developing a more detailed analysis of FERC’s final CEII rule.