FERC Claims CEII Not A Problem for Public Access - March 8, 2004 Vol.5, No.5

March 8, 2004 Vol.5, No.5:

Published: 03/08/2004

Printable Version
Email to a Friend

FERC Claims CEII Not A Problem for Public Access

The Federal Energy Regulatory Commission (FERC) quietly issued a Feb. 12 notice soliciting public comments on the functions and procedures of the agency’s new restrictive information rule, Critical Energy Infrastructure Information (CEII).

FERC issued two rules on CEII, a main rule and a short companion rule. The agency implemented the CEII policy shortly after the terrorist attacks in 2001; a rulemaking followed to formalize the program. While public interest groups raised numerous objections to the CEII policy during the rulemaking procedures, FERC made very few substantive changes in response. Instead, FERC claimed that the complaints “reflect a fundamental misunderstanding of this rulemaking.”

FERC asserts that the CEII rules represent 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.” The agency makes no mention of trying to balance the public’s right-to-know against security concerns.

According to searches on FERC’s online records system, eLibrary, this “delicate balance” classifies over 91,000 documents as non-public under CEII. Among the documents classified are Environmental Assessments, Environmental Impact Statements, Emergency Action Plans, and Compliance Reports.

FERC asserts that all participants in the commission proceeding could get access to documents in order for them to participate meaningfully in the proceeding. However, the agency does not define “participate meaningfully,” nor does it claim that no participant was ever denied requested information. Similarly, FERC also makes a qualified assertion that no member of the public with a demonstrated need for a document containing CEII has complained. Therefore, FERC may have received complaints from the public that it writes off as having no need for the information just as they wrote off public interest group complaints on the rule as fundamental misunderstandings.

FERC claims that as of Jan. 23 the agency had received 126 official requests for CEII and had granted or otherwise closed out 119 of these requests. However, it is unclear how many parties unofficially inquired and then stopped searching when notified that the information was non-public. FERC does not even attempt to quantify how many might have attempted to access some of the 91,000 plus CEII documents listed online and declined to make a formal request.

FERC is accepting comments on the implementation and procedures associated with CEII through March 12.