Before Commissioners:  Pat Wood, III, Chairman;
                                      Nora Mead Brownell, Joseph T.
                                      and Suedeen G. Kelly.

          Critical Energy Infrastructure               Docket Nos.RM02-4-
               Information                                       PL02-1-002

                          NOTICE SOLICITING PUBLIC COMMENT

                             (Issued February 13, 2004)

             1.On July 23, 2003, the Federal Energy Regulatory Commission
               (the Commission) issued two final rules - Order Nos. 630-A
               and 643 - involving critical energy infrastructure
               information (CEII).[1]  Order No. 630-A, the order on
               rehearing of Order No. 630, which was issued on February 21,
               2003,[2] provided further instruction on filing, handling,
               and processing requests for CEII found in Commission
               records.  Order No. 643 was a companion rule that addressed
               then-existing requirements that companies make certain
               information publicly available that the Commission itself
               treated as non-public under newly-issued Order No. 630.  The
               intent of Order No. 643 was to revise requirements that
               applied to the companies' release of CEII to be consistent
               with the way in which the Commission was treating that same
               information.  No one sought rehearing of Order No. 643, and
               no one appealed either rule.

             2.In each of the orders, the Commission noted that the two
               rules "represent[ed] the Commission's best efforts to
               achieve a delicate balance between the due process rights of
               interested persons to participate fully in its proceedings
               and its responsibility to protect public safety by ensuring
               that access to CEII does not facilitate acts of terrorism."
               Order No. 630-A, 68 Fed. Reg. 46,456 at P 18; Order No. 643,
               68 Fed. Reg. 52,089 at P 25.  At the same time, the
               Commission committed to solicit public comment after six
               months in order to identify any potential problems with the
               treatment of CEII under the two orders.  Id.  This notice
               provides an opportunity for those with experience under
               Order Nos. 630, 630-A, and 643 to comment on their
               experiences under those orders.  Such comments are due
               within 30 days of the date of issuance of this notice.  

             3.The final rule issued in Order No. 630 was the result of
               over a year of consideration and discussion at the
               Commission.  The effort began shortly after the attacks of
               September 11, 2001 with the issuance of a policy statement
               in PL02-1-000 (the Policy Statement), which discussed the
               recent removal of certain previously-public records from
               public access through the Public Reference Room, the
               Commission's document retrieval system, and the Internet.
               See Statement of Policy on Treatment of Previously Public
               Documents, 66 Fed. Reg. 52,917 (Oct. 18, 2001), 97 FERC *
               61,130 (2001).  The documents affected by the Policy
               Statement were documents including oversized maps that
               detailed the specifications of facilities licensed or
               certified by the Commission.  The Policy Statement advised
               the public to request such information pursuant to the
               Freedom of Information Act (FOIA) process that is detailed
               in 5 U.S.C. * 552 and in the Commission's regulations at 18
               C.F.R. * 388.108.
             4.Within a few months, the Commission issued a notice of
               inquiry (the NOI) as the next step in the process.  In this
               same issuance, the Commission provided guidance to those
               filing information that might warrant non-public treatment
               under the Policy Statement.  See Notice of Inquiry and
               Guidance for Filings in the Interim, 67 Fed.      Reg. 3,129
               (Jan. 23, 2002), FERC Stats. & Regs. * 35,542 (2002).  The
               NOI labeled the information the Commission was seeking to
               protect as "critical energy infrastructure information, or
               CEII," but asked for public comment on how to define the
               scope of the term.  In addition, the NOI invited comment on
               the legal authority to protect CEII (including applicability
               of FOIA exemptions), requester verification and access
               issues, use of non-disclosure agreements, and the process
               for requesting CEII.
             5.In September 2002, the Commission issued a notice of
               proposed rulemaking regarding CEII (the NOPR).  67 Fed. Reg.
               57,994 (Sept. 13, 2002); FERC Stats. & Regs. * 32,564
               (2002).  The NOPR proposed an expanded definition of CEII to
               include detailed information about proposed facilities as
               well as those already licensed or certificated.  In
               addition, it proposed a new process that would enable the
               Commission to restrict general public access to CEII while
               at the same time permitting those with a need for the
               information to obtain it in a timely manner.  To that end,
               the NOPR proposed a supplement to the FOIA request process
               that would enable requesters to get access to CEII that was
               otherwise exempt from mandatory disclosure under the FOIA.
               Under the proposed process, requesters would have to provide
               limited personal information about themselves and their need
               for the information.  This information would be considered
               in determining whether or not to grant the request.  In
               addition, release would generally be contingent upon the
               requester agreeing to abide by the terms of an appropriate
               non-disclosure agreement.
             6.On February 21, 2003, the Commission issued Order No. 630,
               the final rule on CEII.  The final rule defined CEII to
               include information about proposed facilities, and to
               exclude information that simply identified the location of
               the infrastructure.  In addition, the Commission's related
               definition of "critical infrastructure" was broad enough to
               cover virtually all facilities within its jurisdiction.  The
               Commission declined to limit protection to "high risk"
               projects or facilities, opting instead to include virtually
               all facilities and components, including computer systems
               that control or form part of the energy infrastructure.
             7.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.  Specifically, the order on rehearing made
               several minor procedural changes and clarifications, added a
               reference in the regulation regarding the filing of non-
               Internet public (NIP) information, a term first described in
               Order No. 630, and added a commitment to review the
               effectiveness of the new process after six months.  This
               notice is intended to facilitate such a review.
             8.As a separate but related matter, shortly after the
               Commission issued Order No. 630, it issued a notice of
               proposed rulemaking in RM03-6 that identified portions of
               the Commission's regulations that might require companies to
               disclose information that would be deemed CEII under the
               standards set forth in Order No. 630.  See 68 Fed.    Reg.
               18,538, (Apr. 21, 2003), FERC Stats. & Regs. * 32,569
               (2003).  The goal in RM03-6 was to identify and implement
               any regulatory changes necessary to reconcile regulations
               requiring companies' disclosure of information with the
               standards and procedures in Order No. 630 for handling CEII
               that is submitted to or created by the Commission.  In that
               way, the Commission attempted to ensure that protection of
               CEII was consistent whether the information was being sought
               through the Commission or through the company.
             9.On July 23, 2003, the Commission issued Order No. 643,
               Amendments to Conform Regulations with Order No. 630
               (Critical Energy Infrastructure Information Final Rule), 68
               Fed. Reg. 52,089 (Sept. 2, 2003), FERC Stats. & Regs. *
               31,149 (2003).  The provisions in Order No. 643 were not
               intended to require that companies withhold CEII, rather
               they were intended to eliminate existing requirements to
               disclose information that may qualify for CEII treatment by
               the Commission.  Order No. 643 explicitly stated that
               "[t]here is nothing in these revisions that affects one
               entity's ability to reach appropriate arrangements for
               sharing CEII and the Commission in fact encourages such
               arrangements."  68 Fed. Reg. 52,089 at P 16.  The final rule
               made necessary revisions to provisions in 18 CFR Parts 4,
               16, 141 and 157, and made the same commitment as in Order
               No. 630-A to review the effectiveness of the changes after
               six months.  This notice is intended to facilitate the
               required "public comment to determine whether submitters or
               requesters of CEII are experiencing any problems with the
               new processes."  Id. at P 25.
                                    EXPERIENCE TO DATE
             10.Order Nos. 630, 630-A, and 643 became effective on April 2,
               2003, September 5, 2003, and October 23, 2003, respectively.
               Since April 2003, the Commission has received many filings
               where the submitters have requested non-public treatment of
               documents as containing CEII.  At the same time, the
               Commission's staff has designated certain internally
               generated documents as CEII.  Nevertheless, the Commission
               has received no complaints that any participant in a
               Commission proceeding could not get access to a document in
               order to participate meaningfully in the proceeding.
               Likewise, the Commission has received no complaints from
               other members of the public with a demonstrated need for a
               document containing CEII.[3]  As the Commission indicated in
               Order No. 630, it intended to process requests for CEII as
               expeditiously as possible.  That goal, in large part, as set
               out below, has been accomplished.[4]
             11.Staff follows several steps in processing requests for
               CEII.  Once a request is received, the appropriate staff
               searches for the document requested and provides the
               document to legal staff with a recommendation regarding
               whether or not the information qualifies as CEII.  In cases
               where the requested document was submitted to the Commission
               with a request for CEII treatment, the Associate General
               Counsel for General Law notifies the submitter that the
               Commission has received a request for the document, and
               gives the submitter a period of at least five days in which
               to comment both on release to the particular requester and
               the non-public nature of the document itself.  Each time a
               document is requested, the submitter receives a notice and
               opportunity to comment on release to that particular
               requester.  With all requests, Commission staff reviews the
               document to determine whether it qualifies as CEII, verifies
               the requester's identity and need for the information
               requested, and seeks to obtain an appropriate non-disclosure
               agreement from the requester.  Where the submitter of the
               document provides information regarding the request or
               requester, the staff factors such information into its
               recommendation to the CEII Coordinator.  When the request
               involves a Commission-generated document, the CEII
               Coordinator releases the document to the requester at the
               time the decision to release is made.  In cases where the
               document has been submitted to the Commission, the CEII
               Coordinator renders a decision on release, but release of
               the document is delayed by at least five days to give the
               submitter notice prior to release of the document.  Because
               of the required notice and comment period and the notice
               prior to release, it usually takes staff more time to
               process requests for documents submitted to the Commission
               than those that are internally generated.
             12.As of January 23, 2004, the Commission had received 126
               requests for CEII filed under the procedures laid out in
               Section 388.113 of the Commission's regulations.  See 18
               C.F.R. * 388.113.  These requests encompassed 2,230
               documents.  As of February 4, 2004, the Commission has
               granted or otherwise closed out 119 of these requests.[5]
               None of the remaining requests has exceeded the suggested
               time limits for responding to such requests.  The Commission
               has denied only seven requests, either in whole or in part.
               In three instances, the Commission denied the request in
               whole or in part because the information was subject to the
               attorney-client, attorney work product or deliberative
               process privileges.  The Commission generally does not
               intend to release such information, regardless of whether or
               not it falls within the definition of CEII.  The Commission
               denied four other requests because the requester did not
               agree to the terms of an appropriate non-disclosure
               agreement.  In addition to formal requests for CEII under 18
               C.F.R. * 388.113, Commission staff also received 171 direct
               requests from owners or operators of facilities for 282
               documents containing CEII relating to their own facilities.
               Staff satisfied those requests, generally within a few days
               of receipt.
             13.As noted, Order Nos. 630-A and 643 committed to examine the
               functioning of the new rules after six months, and specified
               that the Commission would seek public comments regarding the
               processes at that time.  This notice invites the public to
               comment on any problems they have experienced under the new
               procedures, or to suggest ways to improve the processes.

          The Commission orders:

               Comments regarding the processes established in Order Nos.
          630, 630-A, and 643 should be filed with the Office of the
          Secretary within 30 days of the issuance of this order.

          By the Commission.

          ( S E A L )

                                            Magalie R. Salas,


          [1] Critical Energy Infrastructure Information, Order No. 630-A,
          68 Fed. Reg. 46,456 (Aug. 6, 2003), FERC Stats. & Regs. * 31,147
          (2003); Amendments to Conform Regulations with Order No. 630,
          Order No. 643, 68 Fed. Reg. 52,089 (Sept. 2, 2003), FERC Stats. &
          Regs. * 31,149 (2003).

          [2] Critical Energy Infrastructure Information, Order No. 630, 68
          Fed. Reg. 9,857 (Mar. 3, 2003), FERC Stats. & Regs. * 31,140

          [3] Commission action on CEII requests is delegated to the CEII
          Coordinator, whose decisions are subject to rehearing.  No one
          has filed a request for rehearing of any of the decisions
          rendered to date.

          [4] In the early months of processing CEII requests, the
          Commission experienced some technical difficulties, in particular
          with respect to the reproduction of Form         No. 715.  Those
          difficulties, which have now been resolved, caused some delay in
          responding to the initial requests for that form.

          [5] In thirteen instances, the requested information was not
          CEII, and could be made public.  In twelve other cases, the
          requesters and submitters dealt directly with each other, and the
          requests were subsequently withdrawn.