by Peter Maloney
Posted January 8, 2019
In a joint filing, public and cooperative electric utility groups have asked the Department of Energy to clarify and tighten rules safeguarding the security of information regarding critical electric infrastructure.
In a Dec. 28 filing, the American Public Power Association, the Large Public Power Council, and the National Rural Electric Cooperative Association commented on DOE’s proposal to establish regulations implementing its critical electric infrastructure information (CEII) designation authority under section 215A(d) of the Federal Power Act.
Section 215A was added to the Federal Power Act by the Fixing America’s Surface Transportation Act that became law in December 2015. The FAST Act, as it is called, provides for certain information to be designated as CEII by the Secretary of Energy and/or the Federal Energy Regulatory Commission.
CEII designation exempts information from disclosure under the Freedom of Information Act, the 1967 federal law that allows individuals to request access to federal agency records. The exemption is meant to safeguard sensitive information about critical electric infrastructure which, if destroyed or incapacitated, could adversely affect national or economic security interests, or public health and safety. CEII designation also exempts information from disclosure under state freedom of information laws, an issue of importance to many public power utilities, whose CEII could be subject to such laws as government entities.
In the filing, the groups endorsed several aspects of the proposed rule, including the pre-designation of certain information as CEII and the proposal to evaluate each CEII designation request rather than making a designation determination only in response to a request for information submitted as CEII. But the groups also asked the DOE to “revise and clarify” certain aspects of the proposed rule.
They argue that the DOE should automatically pre-designate all information for which a CEII designation is requested, pending a review of the request. The petitioners are also asking that the DOE confirm that pre-designation would constitute a formal CEII designation under the Federal Power Act.
As it stands, the DOE is proposing to automatically designate certain categories of information as CEII, including information that meets the FAST Act definition of “Defense Critical Infrastructure Information” and information on electric incidents and emergencies reported to the DOE on Form OE-417. That information would be pre-designated as CEII, but final CEII designation authority would reside with the relevant DOE office handling that information.
Aside from pre-designated materials, DOE has proposed that information for which CEII designation has been requested would be maintained in DOE’s non-public files unless and until the agency completes its determination that the information is not entitled to CEII treatment. The groups are asking the DOE to reconsider that approach and apply the pre-designation classification to all information for which a CEII designation is requested.
They are concerned that, under the proposed rules, the CEII exemption status of sensitive information would be unclear during the period that information is maintained as non-public while a CEII designation review is under way.
In the filing, the groups noted that the DOE is already proposing a pre-designation process for certain categories of information and argued that there are “valid reasons to extend this approach to all information for which a CEII designation is requested.”
The groups also recommended that DOE provide additional details concerning the criteria and vetting procedures that it would apply in responding to requests for sharing of CEII. They urged DOE to restrict sharing of CEII to recipients who have a clear need to know the information.
“We want tighter restrictions on sharing information without shutting off” the flow of information to people with a legitimate need to have that information, John McCaffrey, the American Public Power Association’s Regulatory Counsel, said.
The Edison Electric Institute and PJM Interconnection filed petitions generally supporting the DOE’s proposal while recommending certain modifications or clarifications to the proposed rules. But several advocacy groups took a more aggressive stance against the proposed rules.
Earthjustice, the Union of Concerned Scientists, and Public Citizen filed joint comments in which they called the proposed rules “a breathtaking” overreach of the DOE’s authority that “would inappropriately broaden the department’s authority to restrict access to information critical for informed debate on issues important to the public.”
The advocacy groups argued that under the FAST Act only FERC has authority to establish procedures for CEII designation.
In the filing, the opponents of the proposed rules argued that they could be used to shield information that the DOE could use to push through the Trump administration’s agenda to protect coal-fired power plants from early retirement on national security grounds.