March 19, 2019

March 19, 2019

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March 18, 2019

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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.

Copyright © 2019 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

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About this Author

J. Daniel Skees, Energy attorney, Morgan Lewis
Partner

J. Daniel Skees represents electric utilities before the Federal Energy Regulatory Commission (FERC) and other agencies on rate, regulatory, and transaction matters. He handles rate and tariff proceedings, electric utility and holding company transactions, reliability standards development and compliance, and FERC rulemaking proceedings. The mandatory electric reliability standards under Section 215 of the Federal Power Act are a major focus of Dan’s practice. He advises clients regarding compliance with reliability standards, and helps them participate in the...

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Serge Agbre, Morgan Lewis, Energy Lawyer, FERC Compliance,
Associate

Serge Agbre represents electric, natural gas, and other energy industry participants in a variety of regulatory, transactional, and litigation matters before the Federal Energy Regulatory Commission (FERC). His practice includes related court appeals. Serge represents clients in enforcement matters, rate proceedings, certificate proceedings, and National Environmental Policy Act (NEPA) matters connected to gas infrastructure projects. He also represents electric utilities in rate proceedings, tariff proceedings, and reliability standard compliance and enforcement matters. Serge is admitted in New Jersey only, and his practice is supervised by DC bar members.

202.739.5633