by Paul Ciampoli
APPA News Director
Posted March 23, 2020
The U.S. Department of Energy (DOE) recently published a final rule that implements its authority to designate certain material as critical electric infrastructure information (CEII) under section 215A of the Federal Power Act (FPA). The final rule also addresses the procedures under which DOE will share CEII with federal and non-federal entities.
Under FPA section 215A, the Federal Energy Regulatory Commission (FERC) and DOE have authority to designate information provided to FERC or other federal agencies as CEII. Material must be designated by DOE or FERC to qualify as CEII. Once designated by DOE or FERC, CEII is exempt from Freedom of Information Act (FOIA) requests and is also exempt from disclosure under state and local public records laws.
In the final rule, DOE turned aside arguments by some commenters that the federal agency does not have authority to adopt procedures for designating CEII. While FPA section 215A clearly gives DOE authority to designate material as CEII, these commenters argued that the statute requires DOE to designate CEII pursuant to procedures established by FERC.
The DOE noted that FERC has found that DOE is not bound by FERC’s procedural rules, and DOE also cited its general authority to adopt regulations that are necessary or appropriate to carry out its statutory functions.
The American Public Power Association, the Large Public Power Council (LPPC) and the National Rural Electric Cooperative Association (NRECA) on Dec. 28, 2018 filed comments on the proposed rule that preceded DOE’s final rule.
In their comments, the groups endorsed several aspects of the DOE’s proposed rule, while asking the DOE to “revise and clarify” certain aspects of the proposed rule The final rule adopts a number of the groups’ suggestions.
For example, DOE said it will not publicly disclose information for which a CEII designation has lapsed without providing the submitter of the information -- or DOE itself -- with an opportunity to contend that the information should be re-designated as CEII.
Meanwhile, the final rule reverses course from DOE’s original proposal to “pre-designate” certain categories of information as CEII, a proposal that APPA, NRECA and LPPC had supported. DOE asserted, however, that, since it will render a decision on all requests for CEII designation before sharing any information, there is no practical change in the protection of information for which a CEII designation is requested between the proposed rule and the final rule.
DOE also explained that, in a situation where an entity has submitted information to DOE with a request that it be designated as CEII, DOE will treat the information as if it were already designated as CEII until DOE formally designates the material as CEII -- or determines that the information does not qualify as CEII.
Although CEII is exempt from disclosure under FOIA, FPA section 215A allows for certain sharing of CEII with federal and non-federal entities.
While DOE declined to adopt a proposal by APPA, NRECA and LPPC to adopt a rule under which DOE would not share CEII that had been voluntarily submitted to DOE, the agency specified that any non-federal entity seeking CEII would need to demonstrate “that the release of information is in the national security interest.”
In response to APPA, NRECA and LPPC and others, DOE also adopts regulations in the final rule requiring a non-federal entity requesting CEII to provide detailed information about its need for the information.
The rule will become effective on May 15, 2020.