FERC’s New Rules to Protect CEII—Will They Make a Difference?
On November 17, FERC adopted regulations to enhance the protection of Critical Energy Infrastructure Information (CEII) using its new statutory authority from the Fixing America’s Surface Transportation Act (FAST Act), which added Section 215A to the Federal Power Act.
In addition to finalizing the new protections for CEII promised in the initial notice of proposed rulemaking, the final rule also adopts a prohibition on the disclosure of CEII under the Freedom of Information Act (FOIA). The FAST Act had, for the first time, exempted CEII from FOIA disclosure. In the past, FERC had taken the position that it would not disclose CEII in response to FOIA requests, but there was no explicit statutory basis for doing so. With the new statute and implementing regulations, there is no longer any legal doubt regarding the FOIA-exempt nature of CEII.
Despite the apparent strict nature of these protections, the degree to which CEII will be protected remains to be seen. Although CEII is FOIA-exempt under the FAST Act, FERC continues to provide procedures whereby interested parties can submit requests for CEII and be granted access if such interested parties show a legitimate need and commit to non-disclosure. In the past, FERC has generally been willing to share CEII upon request; the new regulations provide modest additional regulatory procedures for such requests, but it is possible that FERC will continue its policy of making CEII easily available to interested parties. The language in the FAST Act does allow FERC to decline to disclose CEII, but—so far—FERC has not chosen to take that route.