83 FR 24656 - FAST Act Section 61003-Critical Electric Infrastructure Security and Critical Energy Infrastructure Information
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission Federal Register Volume 83, Issue 104 (May 30, 2018)
Federal Energy Regulatory Commission
Federal Register Volume 83, Issue 104 (May 30, 2018)
| Page Range | 24656-24661 | |
| FR Document | 2018-11537 |
[Federal Register Volume 83, Number 104 (Wednesday, May 30, 2018)] [Rules and Regulations] [Pages 24656-24661] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-11537] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 375 and 388 [Docket No. RM16-15-001; Order No. 833-A] FAST Act Section 61003--Critical Electric Infrastructure Security and Critical Energy Infrastructure Information AGENCY: Federal Energy Regulatory Commission. ACTION: Order on clarification and rehearing. ----------------------------------------------------------------------- [[Page 24657]] SUMMARY: The Federal Energy Regulatory Commission (Commission) in this order on clarification and rehearing grants in part Edison Electric Institute's request for clarification or, in the alternative, rehearing of Order No. 833, and denies rehearing of that order, which amends the Commission's regulations to implement provisions of the Fixing America's Surface Transportation Act pertaining to the designation, protection, and sharing of Critical Energy/Electric Infrastructure Information. DATES: This order is effective July 30, 2018. FOR FURTHER INFORMATION CONTACT: Nneka Frye, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6029, [email protected] Christopher MacFarlane, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6761, [email protected] Mark Hershfield, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8597, [email protected] SUPPLEMENTARY INFORMATION: Order No. 833-A Order on Clarification and Rehearing (Issued May 17, 2018) 1. In Order No. 833, the Commission amended its regulations to implement provisions of the Fixing America's Surface Transportation Act (FAST Act) \1\ related to Critical Electric Infrastructure Information.\2\ In addition, Order No. 833 revised the Commission's Critical Energy Infrastructure Information regulations.\3\ Edison Electric Institute (EEI) requested clarification or, in the alternative, rehearing of Order No. 833. For the reasons discussed below, we grant EEI's request for clarification in part and deny rehearing. --------------------------------------------------------------------------- \1\ Fixing America's Surface Transportation Act, Public Law 114- 94, section 61,003, 129 Stat. 1312, 1773-1779 (2015) (codified at 16 U.S.C. 824o-1). \2\ Regulations Implementing FAST Act Section 61003--Critical Electric Infrastructure Security and Amending Critical Energy Infrastructure Information, Availability of Certain North American Electric Reliability Corporation Databases to the Commission, Order No. 833, 157 FERC ] 61,123 (2016), see 81 FR 93732 (Dec. 21, 2016). \3\ Id. --------------------------------------------------------------------------- I. Order No. 833 2. On December 4, 2015, the FAST Act was signed into law. The FAST Act, inter alia, added section 215A to the Federal Power Act (FPA) to improve the security and resilience of energy infrastructure in the face of emergencies. The FAST Act directed the Commission to issue regulations that provide: (1) The criteria and procedures for designating information as Critical Electric Infrastructure Information; (2) a specific prohibition on unauthorized disclosure of Critical Electric Infrastructure Information; (3) sanctions for the knowing and willful unauthorized disclosure of Critical Electric Infrastructure Information by Commission and Department of Energy (DOE) employees; and (4) a process for voluntary sharing of Critical Electric Infrastructure Information.\4\ --------------------------------------------------------------------------- \4\ See generally FAST Act, Public Law 114-94, section 61,003, 129 Stat. 1312, 1776. --------------------------------------------------------------------------- 3. On June 16, 2016, the Commission issued a Notice of Proposed Rulemaking (NOPR) to amend its regulations to implement the provisions of the FAST Act pertaining to the designation, protection, and sharing of Critical Electric Infrastructure Information and to revise the existing Critical Energy Infrastructure Information regulations.\5\ The NOPR proposed that the amended procedures be referred to as the Critical Energy/Electric Infrastructure Information (CEII) Procedures.\6\ In response to the NOPR, nineteen entities filed comments and two entities filed reply comments. --------------------------------------------------------------------------- \5\ Regulations Implementing FAST Act Section 61003--Critical Electric Infrastructure Security and Amending Critical Energy Infrastructure Information, 155 FERC ] 61,278 (2016) (NOPR), see 81 FR 43557 (July 5, 2016). \6\ Id. --------------------------------------------------------------------------- 4. On November 17, 2016, the Commission issued Order No. 833, which amended the Commission's regulations at 18 CFR 375.309, 375.313, 388.112 and 388.113 to implement the FAST Act provisions that pertain to the designation, protection and sharing of Critical Electric Infrastructure Information. Order No. 833 also revised the existing Critical Energy Infrastructure Information regulations. The Commission determined that the amended regulations comply with the requirements of the FAST Act and better ensure the secure treatment of CEII.\7\ --------------------------------------------------------------------------- \7\ See generally Order No. 833, 157 FERC ] 61,123. --------------------------------------------------------------------------- II. Discussion 5. EEI asserts that the Commission either erred or should reconsider five aspects of Order No. 833.\8\ As discussed below, we grant EEI's request for clarification in part and deny EEI's request for rehearing. --------------------------------------------------------------------------- \8\ EEI Request at 6-7. --------------------------------------------------------------------------- A. Requests for Access to CEII Order No. 833 6. The FAST Act required the Commission, taking into account standards of the Electric Reliability Organization, to facilitate voluntary sharing of Critical Electric Infrastructure Information. The statute directed the Commission to facilitate voluntary sharing with, between, and by Federal, State, political subdivision, and tribal authorities; the Electric Reliability Organization; regional entities; information sharing and analysis centers established pursuant to Presidential Decision Directive 63; owners, operators, and users of critical electric infrastructure in the United States; and other entities determined appropriate by the Commission.\9\ --------------------------------------------------------------------------- \9\ FAST Act, Public Law 114-94, section 61,003, 129 Stat. 1312, 1776. --------------------------------------------------------------------------- 7. In Order No. 833, the Commission established procedures in its regulations for providing CEII to third parties. Specifically, in Sec. 388.113(f), the Commission established a process for the Commission to voluntarily share CEII when there is a need to ensure energy infrastructure is protected. Separately, in Sec. 388.113(g), the Commission revised its long-standing procedures for members of the public to request access to CEII by requiring a statement demonstrating a valid and legitimate need for the information.\10\ Both processes contain procedures to notify submitters of the CEII of the Commission's prospective sharing of its CEII as well as a requirement that prospective CEII recipients execute Non-Disclosure Agreements (NDA). --------------------------------------------------------------------------- \10\ The CEII request procedures found in Sec. 388.113(g) were first established under the Commission's Critical Energy Infrastructure Information regulations in 2003. See Critical Energy Infrastructure Information, Order No. 630, FERC Stats. & Regs. ] 31,140, order on reh'g, Order No. 630-A, FERC Stats. & Regs. ] 31,147 (2003). --------------------------------------------------------------------------- 8. The Commission also stated that the procedures do not impose a sharing requirement on entities; instead, the provisions allow the Commission to exercise discretion to share CEII that has already been submitted to, or generated by, the Commission.\11\ Further, the Commission determined that even if the Commission's voluntary sharing of information were viewed as the same as a third-party sharing it, the Commission must balance its obligation to disclose information as necessary to carry out the Commission's jurisdictional responsibilities against an entity's preference not to have information disclosed.\12\ --------------------------------------------------------------------------- \11\ Order No. 833, 157 FERC ] 61,123 at P 125. \12\ Id. P 126. --------------------------------------------------------------------------- [[Page 24658]] Request 9. EEI states that the Commission should reconsider its determination that CEII can be shared over the objections of submitters.\13\ EEI asserts that section 215A(d)(2)(D) of the FPA directs the Commission only to facilitate voluntary sharing ``by and between'' entities. EEI contends that the Commission's ability to share information over a submitter's objection, as provided in 18 CFR 388.113(g)(5)(iii), amounts to involuntary sharing not intended by the FAST Act and in violation of FPA section 215A(d)(6).\14\ EEI asserts that, by using section 215A(d)(2)(D) to authorize the Commission to provide CEII over the submitter's objection, the Commission is using the FAST Act to ``share'' CEII in an involuntary manner. EEI states that its interpretation is consistent with Congress' decision to make CEII exempt from mandatory disclosure under the Freedom of Information Act (FOIA).\15\ --------------------------------------------------------------------------- \13\ EEI Request at 7. \14\ Id. \15\ See 5 U.S.C. 552 as amended by the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (2016). --------------------------------------------------------------------------- Commission Determination 10. We deny clarification and rehearing of this issue. We disagree with EEI's contention that the FAST Act only directs the voluntary sharing of CEII ``by and between'' entities or that the Commission's release of information over a submitter's objections constitutes ``involuntary'' sharing of such information. EEI misconstrues FPA section 215A(d)(2)(D) to argue that the statute's directives regarding voluntary sharing do not include voluntary sharing of CEII by the Commission. Such a reading is inconsistent with the FAST Act in two respects. 11. First, FPA section 215A(d)(2)(D)(i) provides that the Commission's regulations should ``facilitate voluntary sharing of critical electric infrastructure information with, between, and by--(i) Federal, State, political subdivision, and tribal authorities . . .'' It would be incongruous to read the FAST Act's reference to ``voluntary sharing . . . by . . . Federal . . . authorities'' not to include voluntary sharing by the Commission of CEII in its possession. Second, the FAST Act did not direct the Commission to curtail or eliminate the established, pre-existing process for providing members of the public with access to CEII, which is provided in 18 CFR 388.113(g)(5)(iii). 12. Even before the FAST Act, the Commission's regulations included a process whereby the Commission's CEII Coordinator had the discretion to share, in certain circumstances, CEII that was submitted to, or generated by, the Commission.\16\ Under both the prior regulations and the revised regulations at 18 CFR 388.113(d)(1)(vi), a submitter is, as EEI acknowledges, provided an opportunity to comment on the potential disclosure of its CEII.\17\ Prior to any determination to release CEII to a requester, pursuant to 18 CFR 388.113(g)(5)(iii), the CEII Coordinator will take into consideration any objections and ``will balance the requester's need for the information against the sensitivity of the information.'' Other than characterizing a determination by the CEII Coordinator to ultimately release CEII over an objection as ``involuntary sharing,'' EEI does not propose any change to the Commission's long-standing approach nor does EEI demonstrate that the FAST Act is intended to restrict the Commission from sharing CEII, under an NDA, with third parties that have a valid and legitimate need for the material.\18\ --------------------------------------------------------------------------- \16\ Order No. 833, 157 FERC ] 61,123 at P 125. \17\ EEI's argument pertains to the CEII request process found in 18 CFR 388.113(g)(5) of the Commission's regulations. To the extent that EEI's argument indirectly relates to the separate voluntary sharing provisions found in Sec. 388.113(f), its argument does not persuade us to grant rehearing on that section for the same reasons as those provided above. For example, under Sec. 388.113(f), except in exigent circumstances, submitters are provided notice prior to release of CEII and may submit comments. In the event of an exigency like a national security issue, the Commission will provide notice of the disclosure to the submitter of CEII as soon as practicable. \18\ EEI's interpretation suggests that the determination as to whether it is appropriate for the Commission to share CEII should be entirely in the hands of the submitter. Such an approach is inconsistent with the FAST Act as it could limit the Commission's ability to share CEII. In any event, pursuant to Sec. 388.113(d)(1)(iv), a submitter is provided notice of release of CEII under 18 CFR 388.113(g)(5)(iii), and a submitter who disagrees with the determination providing notice of the release of its CEII has the ability to seek injunctive relief in district court. --------------------------------------------------------------------------- 13. In addition, our reading of the FAST Act is consistent with EEI's statement that ``[u]nder the plain meaning of the FAST Act statute, the term `voluntary' means the Commission should implement an information sharing process that allows owners to share information intentionally and freely.'' \19\ The new voluntary sharing provisions, at 18 CFR 388.113(f) of the Commission's CEII regulations, only govern the process by which the Commission will voluntarily share CEII that has been submitted to the Commission or generated by staff.\20\ Before the FAST Act and under the revised regulations, entities remain free to share the CEII that they submitted to the Commission with others. --------------------------------------------------------------------------- \19\ EEI Request at 7. \20\ As to sharing of CEII by CEII recipients, under our NDAs, CEII recipients may only share CEII with other individuals covered by our NDA for the same information. --------------------------------------------------------------------------- 14. Finally, we disagree with EEI's assertion that its interpretation of the FAST Act's ``voluntary sharing'' provisions is consistent with Congress' creation of a FOIA exemption for CEII.\21\ The Commission's FOIA program and the voluntary sharing contemplated under the FAST Act serve different purposes, with the former serving to support government transparency \22\ and the latter governing how certain sensitive information is identified, secured, and shared to support the security and resilience of critical energy infrastructure. We do not agree that the new FOIA exemption protecting against mandatory public disclosure of CEII in response to a FOIA request suggests that Congress also intended to prohibit any sharing of that CEII without the submitter's consent. Rather, the regulations adopted in Order No. 833 struck an appropriate balance between the FAST Act's provisions protecting CEII from public disclosure with the provisions providing that CEII may be voluntarily shared with certain third parties. Thus, while the FOIA exemption prevents the disclosure of CEII in response to a FOIA request, we disagree with EEI's assertion that the exemption was intended to preclude the Commission from exercising its discretion to share CEII pursuant to the established procedures in 18 CFR 388.113(g)(5)(iii). --------------------------------------------------------------------------- \21\ EEI Request at 7-8. \22\ See, e.g., NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978) (``The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.''). --------------------------------------------------------------------------- B. Criteria for Responding to CEII Requests Order No. 833 15. In Order No. 833, the Commission concluded that the FAST Act does not require changes to the Commission's existing process for accessing CEII.\23\ The Commission also decided to maintain its balancing approach when determining whether to provide CEII to individuals who demonstrated a need for access to CEII under an executed NDA.\24\ The Commission noted that a request for access to CEII is case specific to the unique facts and circumstances of each request and, therefore, declined to provide additional guidance and criteria about how it will respond to individual [[Page 24659]] CEII requests under 18 CFR 388.113(g)(5).\25\ --------------------------------------------------------------------------- \23\ Order No. 833, 157 FERC ] 61,123 at P 144. \24\ Id. P 143. \25\ The Commission, however, outlined the information that an individual seeking access to CEII under 18 CFR 388.113(g)(5) must include in an accompanying statement of need. See id. --------------------------------------------------------------------------- Request 16. EEI asserts that the Commission erred by declining to provide or clarify the criteria that the Commission will use to determine whether a member of the public is eligible to obtain CEII from the Commission.\26\ EEI claims that such clarification will provide clear guidance to Commission staff about when a member of the public may receive CEII and afford a better understanding to submitters about the ``benefits or risks involved in providing CEII to the Commission.'' \27\ EEI also contends that ``criteria stating that the Commission will consider public safety benefits before releasing CEII to the public may provide CEII submitters with greater reasons to voluntarily provide CEII to the Commission.'' \28\ --------------------------------------------------------------------------- \26\ EEI Request at 6 (averring that nothing in Sec. 388.113(g)(5)(iii) identifies any criteria that the Commission will use before disclosing CEII to a requester). \27\ Id. at 9. \28\ Id. --------------------------------------------------------------------------- Commission Determination 17. We grant clarification and deny rehearing of this issue. We continue to believe that the Commission has provided sufficient detail on the circumstances in which the Commission will share CEII.\29\ The CEII regulations enable ``individuals with a valid or legitimate need to access certain sensitive energy infrastructure information'' that would otherwise be exempt under FOIA.\30\ --------------------------------------------------------------------------- \29\ See, e.g., 18 CFR 388.113(f) (2017) (providing the procedures for voluntary sharing), Sec. 388.113(g) (providing procedures for accessing CEII). \30\ Order No. 833, 157 FERC ] 61,123 at P 3. --------------------------------------------------------------------------- 18. Since instituting the CEII process in 2003, the Commission has acquired significant experience in processing CEII requests. In particular, the Commission routinely processes CEII requests from, among others, consultants, academics, landowners, and public interest groups. In implementing the provisions of the FAST Act, the Commission is utilizing its vast experience in addressing the various interests of CEII requestors and submitters as well. 19. Furthermore, we disagree with EEI's assertion that the Commission failed to provide any criteria that the CEII Coordinator will use to determine whether a member of the public is eligible to access CEII. As explained in Order No. 833, the Commission has utilized a ``balancing approach effectively in response to Critical Energy Infrastructure Information requests for almost fifteen years. The balancing approach has provided to individuals with a demonstrated need access to information subject to a NDA.'' \31\ Consistent with long- standing practice, Sec. 388.113(g)(5)(iii) states that the ``CEII Coordinator will balance the requester's need for the information against the sensitivity of the information.'' --------------------------------------------------------------------------- \31\ Id. P 143. --------------------------------------------------------------------------- 20. Contrary to EEI's assertion, in the NOPR and in Order No. 833, we provided clarification regarding the criteria for obtaining CEII by outlining information that a CEII requester must include in its statement of need.\32\ We also stated that a conclusory statement of need by a CEII requester will not suffice.\33\ Moreover, we note that a request for access to CEII is case specific to the unique facts and circumstances of each request. --------------------------------------------------------------------------- \32\ 18 CFR 388.113(g)(5)(i)(B). \33\ Id. --------------------------------------------------------------------------- 21. In its filing, EEI provides one suggestion (i.e., ``public safety benefits'') concerning how the Commission can enhance the criteria to determine whether a member of the public is eligible to obtain CEII from the Commission.\34\ We clarify that public safety benefits are one criterion that the CEII Coordinator should consider, as part of the balancing approach described above, in determining whether to share CEII in a particular instance. Overall, we believe that our approach provides sufficient detail on the circumstances in which the Commission will share CEII, while also providing the CEII Coordinator with enough specificity and flexibility to respond to each individual request for CEII. --------------------------------------------------------------------------- \34\ EEI Request at 9. --------------------------------------------------------------------------- C. Non-Disclosure Agreement Order No. 833 22. Order No. 833 included revisions to strengthen the CEII handling requirements for both Commission staff and external recipients. As part of those revisions, the Commission established minimum requirements for the NDAs that recipients of CEII must execute before receiving access to CEII. The Commission explained that the minimum requirements for an NDA are not exhaustive and do not preclude other requirements.\35\ Further, the Commission stated that additional provisions may be added to the NDA and submitters may request additional provisions.\36\ In response to NOPR comments, the Commission amended Sec. 388.113(h)(2) to add a provision to require CEII recipients to promptly report all unauthorized disclosures of CEII to the Commission.\37\ --------------------------------------------------------------------------- \35\ Order No. 833, 157 FERC ] 61,123 at P 92. \36\ Id. \37\ Id. P 93. --------------------------------------------------------------------------- Request 23. EEI states that the Commission should consider ``modernizing the Commission's CEII NDA even further to mitigate against the risk of a CEII recipient involuntarily sharing CEII with a hostile actor.'' \38\ EEI identifies one example of how the Commission may change the CEII NDA. While acknowledging the ``incident response clause'' in Sec. 388.113(h)(2), EEI suggests that the clause could be changed to require the reporting of unauthorized disclosures that actually occurred or ``those reasonably suspected to have occurred.'' \39\ --------------------------------------------------------------------------- \38\ EEI Request at 10-11. \39\ Id. at 10. --------------------------------------------------------------------------- Commission Determination 24. We grant clarification and deny rehearing on this issue. Order No. 833 explained that Sec. 388.113(h)(2) only includes ```minimum' requirements for a NDA and is not intended to be exhaustive or preclude additional provisions, as needed.'' \40\ As the Commission stated in Order No. 833, under certain circumstances the Commission may add additional provisions to the NDA and submitters may request that additional provisions be added to the NDA.\41\ While we decline to make any changes to the minimum requirements for the NDA, the Commission reiterates that the CEII Coordinator may consider adding additional provisions to the NDA on a case by case basis. However, to the extent EEI seeks a specific change to the NDA or requests that the Commission take further comment on revisions to the NDA at this time, we deny those requests. EEI has not demonstrated that the NDA revisions that we have adopted, or the fact that we will entertain further changes to the NDA as appropriate, are unreasonable or arbitrary. --------------------------------------------------------------------------- \40\ Order No. 833, 157 FERC ] 61,123 at P 92. \41\ Id. P 92. --------------------------------------------------------------------------- D. Designation of Commission-Generated Information Order No. 833 25. In Order No. 833, the Commission determined that for Commission-generated information, the CEII Coordinator, after consultation with the [[Page 24660]] appropriate Office Director, will determine whether the information is CEII.\42\ The Commission concluded that stakeholder participation in CEII designations of Commission-generated information is unnecessary because the Commission has the expertise and experience to make such determinations.\43\ The Commission also noted that in certain instances it would be inappropriate for stakeholders to be privy to Commission- generated information that potentially qualified as CEII.\44\ Finally, the Commission stated that an entity is not precluded from raising concerns with the CEII Coordinator when an entity believes that Commission-generated information contains CEII about its facility.\45\ --------------------------------------------------------------------------- \42\ Id. P 59. \43\ Id. P 60. \44\ Id. \45\ Id. P 61. --------------------------------------------------------------------------- Request 26. EEI requests that the Commission clarify the existing procedures or provide the anticipated procedure for stakeholder ``notification of, and opportunity to comment on, potential disclosure or sharing of Commission-generated information.'' \46\ EEI asserts that the Commission erred by failing to provide a process for an entity to comment on the possible disclosure or sharing of Commission-generated CEII.\47\ EEI contends that the Commission may incorporate a submitter's CEII in a Commission-generated CEII document that is released to a CEII requester without providing the submitter any opportunity to comment. --------------------------------------------------------------------------- \46\ EEI Request at 6. \47\ Id. --------------------------------------------------------------------------- 27. EEI also contends that the Commission could create a document that combines information that alone did not constitute CEII and was not submitted to the Commission as such, but that combined with other information could constitute CEII.\48\ EEI states that in that instance, the submitter would not have had an opportunity to mark the information as CEII.\49\ EEI maintains that, in these situations, it would be inconsistent for the Commission not to provide notice and an opportunity to comment.\50\ --------------------------------------------------------------------------- \48\ Id. at 13. \49\ Id. \50\ Id. at 13-14. --------------------------------------------------------------------------- Commission Determination 28. We grant clarification and deny rehearing on this issue. The FAST Act implicitly recognizes that the Commission has the expertise and experience to determine whether any information, including Commission-generated information, is properly designated as CEII by vesting the Commission with the authority to designate information as CEII. The FAST Act does not require, and EEI identifies no provision in the FAST Act requiring, the Commission to provide notice and opportunity for public comment about the prospective release or sharing of Commission-generated CEII. Furthermore, the Commission is not persuaded that we should establish a requirement for stakeholder input when the Commission combines information not filed as CEII with other information and potentially creates CEII. 29. To the contrary, inherent differences between Commission- generated CEII and CEII from submitters, as well as practical considerations, warrant different procedures. As EEI acknowledges, there are circumstances in which it would be inappropriate for an outside entity to comment on the content of a non-public, Commission- generated CEII document. Nonetheless, EEI asks the Commission to develop a ``consistent process'' for stakeholder participation. We disagree and believe that crafting a broad notification requirement for each Commission-generated document that discusses CEII in some respect would be impractical and, as we noted in Order No. 833, often inappropriate.\51\ --------------------------------------------------------------------------- \51\ Order No. 833, 157 FERC ] 61,123 at P 61. For example, Commission-generated documents may include other forms of non-public information such as pre-decisional, internal deliberations covered by the Deliberative Process Privilege. 5 U.S.C. 552(b)(5)(2017) (protecting from disclosure ``intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency.''); see Russell v. Dep't of the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); see also Environmental Protection Agency v. Mink, 410 U.S. 73, 87 (1973) (recognizing that ``[i]t would be impossible to have any frank discussions of legal or policy matters in writing if all such writings were to be subjected to public scrutiny''). --------------------------------------------------------------------------- 30. Therefore, EEI's arguments do not persuade us that a formal, mandatory stakeholder process is needed to comment on the release or sharing of Commission-generated CEII. We, however, clarify that nothing in the FAST Act or the Commission's CEII regulations prevents the CEII Coordinator from exercising discretion in an individual situation to solicit comments from a submitter of CEII or other information when evaluating whether to release a Commission-generated CEII document. We note that even if the Commission determines to release Commission- generated CEII, such a release would be pursuant to an NDA and the Commission's protections against further unwarranted or prohibited disclosure. E. DOE's Criteria and Procedures for What Constitutes CEII Order No. 833 31. In Order No. 833, the Commission declined to revise the CEII regulations to identify specific designation criteria and CEII procedures for DOE.\52\ The Commission stated that the FAST Act does not compel DOE to make changes to its regulations and noted that nothing within the Commission's regulations limits DOE's ability to designate CEII in accordance with the FAST Act.\53\ --------------------------------------------------------------------------- \52\ Order No. 833, 157 FERC ] 61,123 at P 39. \53\ Id. --------------------------------------------------------------------------- Request 32. EEI asserts that the Commission erred in declining to provide or clarify the applicability of any procedure or process for stakeholders regarding DOE designations of its information as CEII.\54\ Specifically, EEI requests that the Commission confirm that DOE determinations regarding CEII will be conducted pursuant to the Commission's CEII regulations.\55\ EEI further requests that if that is not the case, the Commission should clarify that position, so EEI can seek further clarification from DOE as to the applicable procedures and criteria DOE intends to use for such determinations.\56\ --------------------------------------------------------------------------- \54\ EEI Request at 7. \55\ Id. at 16. \56\ Id. --------------------------------------------------------------------------- Commission Determination 33. We deny rehearing on this issue. In Order No. 833, the Commission declined to revise our regulations to identify specific designation criteria and CEII procedures that would be required for DOE.\57\ EEI's argument here does not persuade us to change that determination. Specifically, section 215A(d)(3) of the FAST Act provides that information ``may be designated'' by the Commission and DOE pursuant to the criteria and procedures that the Commission establishes.\58\ As explained in Order No. 833, nothing within the FAST Act compels DOE to make changes to its regulations, and nothing in the Commission's regulations limits DOE's ability to designate information in accordance with the FAST Act.\59\ --------------------------------------------------------------------------- \57\ Order No. 833, 157 FERC ] 61,123 at P 39. \58\ FAST Act, Public Law 114-94, section 61,003, 129 Stat. 1312, 1776. \59\ Order No. 833, 157 FERC ] 61,123 at P 39 (citing NOPR, 155 FERC ] 61,278 at P 16 n.12). --------------------------------------------------------------------------- The Commission Orders EEI's request for clarification is hereby granted in part and EEI's request [[Page 24661]] for rehearing is denied, as discussed in the body of this order. By the Commission. Issued: May 17, 2018. Nathaniel J. Davis, Sr., Deputy Secretary. [FR Doc. 2018-11537 Filed 5-29-18; 8:45 am] BILLING CODE 6717-01-P
![24656 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations
power conditions after a single or dual in- (2) The installation of the FADEC EEC or may examine the MCAI on the internet at
flight engine shutdown. software standard must be accomplished in http://www.regulations.gov by searching for
accordance with a method approved by the and locating Docket No. FAA–2018–0492.
(f) Compliance Manager, International Section, Transport (2) For more information about this AD,
Comply with this AD within the Standards Branch, FAA; or EASA; or contact Sanjay Ralhan, Aerospace Engineer,
compliance times specified, unless already Airbus’s EASA DOA. If approved by the International Section, Transport Standards
done. DOA, the approval must include the DOA- Branch, FAA, 2200 South 216th St., Des
authorized signature. Moines, WA 98198; telephone and fax 206–
(g) Definitions 231–3323.
(1) For the purposes of this AD, an affected (k) Clarification of Affected Airplanes (3) Service information identified in this
full authority digital engine control (FADEC) An airplane on which Airbus modification AD that is not incorporated by reference is
electronic engine controller (EEC) is one with 163473 has been embodied in production is available at the addresses specified in
a part number listed in table 1 to paragraph not affected by the requirements of paragraph paragraphs (o)(3) and (o)(4) of this AD.
(g)(1) of this AD. (h) of this AD, provided it can be
(o) Material Incorporated by Reference
conclusively determined that no affected
FADEC EEC is installed on that airplane. (1) The Director of the Federal Register
TABLE 1 TO PARAGRAPH (g)(1) OF approved the incorporation by reference
THIS AD—AFFECTED FADEC EEC (l) Credit for Previous Actions (IBR) of the service information listed in this
PART NUMBERS This paragraph provides credit for the paragraph under 5 U.S.C. 552(a) and 1 CFR
actions required by paragraph (h) of this AD, part 51.
Affected FADEC EEC part No. if those actions were performed before the (2) You must use this service information
effective date of this AD using Airbus Service as applicable to do the actions required by
5315126 Bulletin A320–73–1128, dated May 15, 2018. this AD, unless this AD specifies otherwise.
5315126SK02 (i) Airbus Service Bulletin A320–73–1128,
(m) Other FAA AD Provisions Revision 01, dated May 17, 2018.
5323434
5323745 The following provisions also apply to this (ii) Reserved.
5323746 AD: (3) For service information identified in
5324836 (1) Alternative Methods of Compliance this AD, contact Airbus, Airworthiness
5324836–001 (AMOCs): The Manager, International Office—EIAS, 1 Rond Point Maurice
5324836–002 Section, Transport Standards Branch, FAA, Bellonte, 31707 Blagnac Cedex, France;
has the authority to approve AMOCs for this telephone +33 5 61 93 36 96; fax +33 5 61
5324837
AD, if requested using the procedures found 93 44 51; email account.airworth-eas@
5325185
in 14 CFR 39.19. In accordance with 14 CFR airbus.com; internet http://www.airbus.com.
5325971
39.19, send your request to your principal (4) You may view this service information
5325975
inspector or local Flight Standards District at the FAA, Transport Standards Branch,
Office, as appropriate. If sending information 2200 South 216th St., Des Moines, WA. For
(2) For the purposes of this AD, Group 1 information on the availability of this
directly to the International Section, send it
airplanes are defined as those that have an to the attention of the person identified in material at the FAA, call 206–231–3195.
affected FADEC EEC installed. paragraph (n)(2) of this AD. Information may (5) You may view this service information
(3) For the purposes of this AD, Group 2 be emailed to: 9-ANM-116-AMOC- that is incorporated by reference at the
airplanes are defined as those that do not REQUESTS@faa.gov. Before using any National Archives and Records
have an affected FADEC EEC installed. approved AMOC, notify your appropriate Administration (NARA). For information on
(h) Modification principal inspector, or lacking a principal the availability of this material at NARA, call
inspector, the manager of the local flight 202–741–6030, or go to: http://
For Group 1 airplanes: Within 30 days after standards district office/certificate holding www.archives.gov/federal-register/cfr/ibr-
the effective date of this AD, modify the district office. locations.html.
airplane by replacing affected FADEC EECs (2) Contacting the Manufacturer: For any
installed on both engines with FADEC EEC Issued in Des Moines, Washington, on May
requirement in this AD to obtain corrective 23, 2018.
part number 5327582 (software standard actions from a manufacturer, the action must
FCS4.4), or by installing software standard be accomplished using a method approved James Cashdollar,
FCS4.4 and re-identifying the affected by the Manager, International Section, Acting Director, System Oversight Division,
FADEC EEC, in accordance with the Transport Standards Branch, FAA; or EASA; Aircraft Certification Service.
Accomplishment Instructions of Airbus or Airbus’s EASA DOA. If approved by the [FR Doc. 2018–11659 Filed 5–29–18; 8:45 am]
Service Bulletin A320–73–1128, Revision 01, DOA, the approval must include the DOA- BILLING CODE 4910–13–P
dated May 17, 2018. authorized signature.
(i) Parts Installation Limitation (3) Required for Compliance (RC): If any
service information contains procedures or
As of 30 days after the effective date of this tests that are identified as RC, those DEPARTMENT OF ENERGY
AD, do not install an affected FADEC EEC on procedures and tests must be done to comply
any airplane. with this AD; any procedures or tests that are Federal Energy Regulatory
(j) Later-Approved Parts not identified as RC are recommended. Those Commission
procedures and tests that are not identified
Installation on an airplane of a FADEC EEC as RC may be deviated from using accepted 18 CFR Parts 375 and 388
or software standard having a part number methods in accordance with the operator’s
approved after the effective date of this AD maintenance or inspection program without [Docket No. RM16–15–001; Order
is acceptable for compliance with the obtaining approval of an AMOC, provided No. 833–A]
requirements of paragraph (h) of this AD, the procedures and tests identified as RC can
provided the conditions in paragraphs (j)(1) be done and the airplane can be put back in FAST Act Section 61003—Critical
and (j)(2) of this AD are met. an airworthy condition. Any substitutions or Electric Infrastructure Security and
sradovich on DSK3GMQ082PROD with RULES
(1) The FADEC EEC or software standard changes to procedures or tests identified as Critical Energy Infrastructure
part number must be approved by the RC require approval of an AMOC. Information
Manager, International Section, Transport
Standards Branch, FAA; or the European (n) Related Information AGENCY: Federal Energy Regulatory
Aviation Safety Agency (EASA); or Airbus’s (1) Refer to Mandatory Continuing Commission.
EASA Design Organization Approval (DOA). Airworthiness Information (MCAI) EASA ACTION: Order on clarification and
If approved by the DOA, the approval must Airworthiness Directive 2018–0110, dated
rehearing.
include the DOA-authorized signature. May 18, 2018, for related information. You
VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1](https://thefederalregister.org/doc/83_FR_24760/page/1.svg)
![24658 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations
Request in certain circumstances, CEII that was Before the FAST Act and under the
9. EEI states that the Commission submitted to, or generated by, the revised regulations, entities remain free
should reconsider its determination that Commission.16 Under both the prior to share the CEII that they submitted to
CEII can be shared over the objections regulations and the revised regulations the Commission with others.
of submitters.13 EEI asserts that section at 18 CFR 388.113(d)(1)(vi), a submitter 14. Finally, we disagree with EEI’s
215A(d)(2)(D) of the FPA directs the is, as EEI acknowledges, provided an assertion that its interpretation of the
Commission only to facilitate voluntary opportunity to comment on the FAST Act’s ‘‘voluntary sharing’’
sharing ‘‘by and between’’ entities. EEI potential disclosure of its CEII.17 Prior provisions is consistent with Congress’
contends that the Commission’s ability to any determination to release CEII to creation of a FOIA exemption for CEII.21
to share information over a submitter’s a requester, pursuant to 18 CFR The Commission’s FOIA program and
objection, as provided in 18 CFR 388.113(g)(5)(iii), the CEII Coordinator the voluntary sharing contemplated
388.113(g)(5)(iii), amounts to will take into consideration any under the FAST Act serve different
involuntary sharing not intended by the objections and ‘‘will balance the purposes, with the former serving to
FAST Act and in violation of FPA requester’s need for the information support government transparency 22 and
section 215A(d)(6).14 EEI asserts that, by against the sensitivity of the the latter governing how certain
using section 215A(d)(2)(D) to authorize information.’’ Other than characterizing sensitive information is identified,
the Commission to provide CEII over the a determination by the CEII Coordinator secured, and shared to support the
submitter’s objection, the Commission is to ultimately release CEII over an security and resilience of critical energy
using the FAST Act to ‘‘share’’ CEII in objection as ‘‘involuntary sharing,’’ EEI infrastructure. We do not agree that the
an involuntary manner. EEI states that does not propose any change to the new FOIA exemption protecting against
its interpretation is consistent with Commission’s long-standing approach mandatory public disclosure of CEII in
Congress’ decision to make CEII exempt nor does EEI demonstrate that the FAST response to a FOIA request suggests that
from mandatory disclosure under the Act is intended to restrict the Congress also intended to prohibit any
Freedom of Information Act (FOIA).15 Commission from sharing CEII, under sharing of that CEII without the
an NDA, with third parties that have a submitter’s consent. Rather, the
Commission Determination valid and legitimate need for the regulations adopted in Order No. 833
10. We deny clarification and material.18 struck an appropriate balance between
rehearing of this issue. We disagree with 13. In addition, our reading of the the FAST Act’s provisions protecting
EEI’s contention that the FAST Act only FAST Act is consistent with EEI’s CEII from public disclosure with the
directs the voluntary sharing of CEII ‘‘by statement that ‘‘[u]nder the plain provisions providing that CEII may be
and between’’ entities or that the meaning of the FAST Act statute, the voluntarily shared with certain third
Commission’s release of information term ‘voluntary’ means the Commission parties. Thus, while the FOIA
over a submitter’s objections constitutes should implement an information exemption prevents the disclosure of
‘‘involuntary’’ sharing of such sharing process that allows owners to CEII in response to a FOIA request, we
information. EEI misconstrues FPA share information intentionally and disagree with EEI’s assertion that the
section 215A(d)(2)(D) to argue that the freely.’’ 19 The new voluntary sharing exemption was intended to preclude the
statute’s directives regarding voluntary provisions, at 18 CFR 388.113(f) of the Commission from exercising its
sharing do not include voluntary Commission’s CEII regulations, only discretion to share CEII pursuant to the
govern the process by which the established procedures in 18 CFR
sharing of CEII by the Commission. Such
Commission will voluntarily share CEII
a reading is inconsistent with the FAST 388.113(g)(5)(iii).
that has been submitted to the
Act in two respects.
11. First, FPA section 215A(d)(2)(D)(i) Commission or generated by staff.
20 B. Criteria for Responding to CEII
provides that the Commission’s Requests
16 Order No. 833, 157 FERC ¶ 61,123 at P 125.
regulations should ‘‘facilitate voluntary 17 EEI’s argument pertains to the CEII request Order No. 833
sharing of critical electric infrastructure process found in 18 CFR 388.113(g)(5) of the
15. In Order No. 833, the Commission
information with, between, and by—(i) Commission’s regulations. To the extent that EEI’s
concluded that the FAST Act does not
Federal, State, political subdivision, and argument indirectly relates to the separate
voluntary sharing provisions found in § 388.113(f), require changes to the Commission’s
tribal authorities . . .’’ It would be its argument does not persuade us to grant existing process for accessing CEII.23
incongruous to read the FAST Act’s rehearing on that section for the same reasons as
The Commission also decided to
reference to ‘‘voluntary sharing . . . by those provided above. For example, under
§ 388.113(f), except in exigent circumstances, maintain its balancing approach when
. . . Federal . . . authorities’’ not to submitters are provided notice prior to release of determining whether to provide CEII to
include voluntary sharing by the CEII and may submit comments. In the event of an individuals who demonstrated a need
Commission of CEII in its possession. exigency like a national security issue, the
for access to CEII under an executed
Second, the FAST Act did not direct the Commission will provide notice of the disclosure to
the submitter of CEII as soon as practicable. NDA.24 The Commission noted that a
Commission to curtail or eliminate the 18 EEI’s interpretation suggests that the request for access to CEII is case specific
established, pre-existing process for determination as to whether it is appropriate for the to the unique facts and circumstances of
providing members of the public with Commission to share CEII should be entirely in the
hands of the submitter. Such an approach is each request and, therefore, declined to
access to CEII, which is provided in 18
inconsistent with the FAST Act as it could limit the provide additional guidance and criteria
CFR 388.113(g)(5)(iii).
12. Even before the FAST Act, the
Commission’s ability to share CEII. In any event, about how it will respond to individual
pursuant to § 388.113(d)(1)(iv), a submitter is
Commission’s regulations included a provided notice of release of CEII under 18 CFR
21 EEI Request at 7–8.
sradovich on DSK3GMQ082PROD with RULES
process whereby the Commission’s CEII 388.113(g)(5)(iii), and a submitter who disagrees 22 See, e.g., NLRB v. Robbins Tire & Rubber Co.,
Coordinator had the discretion to share, with the determination providing notice of the
release of its CEII has the ability to seek injunctive 437 U.S. 214, 242 (1978) (‘‘The basic purpose of
relief in district court. FOIA is to ensure an informed citizenry, vital to the
13 EEI Request at 7. 19 EEI Request at 7. functioning of a democratic society, needed to
14 Id. 20 As to sharing of CEII by CEII recipients, under check against corruption and to hold the governors
15 See 5 U.S.C. 552 as amended by the FOIA our NDAs, CEII recipients may only share CEII with accountable to the governed.’’).
23 Order No. 833, 157 FERC ¶ 61,123 at P 144.
Improvement Act of 2016, Public Law 114–185, 130 other individuals covered by our NDA for the same
Stat. 538 (2016). information. 24 Id. P 143.
VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1](https://thefederalregister.org/doc/83_FR_24760/page/3.svg)
![24660 Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations
appropriate Office Director, will information, including Commission- E. DOE’s Criteria and Procedures for
determine whether the information is generated information, is properly What Constitutes CEII
CEII.42 The Commission concluded that designated as CEII by vesting the
Order No. 833
stakeholder participation in CEII Commission with the authority to
designations of Commission-generated designate information as CEII. The 31. In Order No. 833, the Commission
information is unnecessary because the FAST Act does not require, and EEI declined to revise the CEII regulations to
Commission has the expertise and identifies no provision in the FAST Act identify specific designation criteria and
experience to make such requiring, the Commission to provide CEII procedures for DOE.52 The
determinations.43 The Commission also notice and opportunity for public Commission stated that the FAST Act
noted that in certain instances it would comment about the prospective release does not compel DOE to make changes
be inappropriate for stakeholders to be or sharing of Commission-generated to its regulations and noted that nothing
privy to Commission-generated CEII. Furthermore, the Commission is within the Commission’s regulations
information that potentially qualified as not persuaded that we should establish limits DOE’s ability to designate CEII in
CEII.44 Finally, the Commission stated a requirement for stakeholder input accordance with the FAST Act.53
that an entity is not precluded from when the Commission combines
raising concerns with the CEII information not filed as CEII with other Request
Coordinator when an entity believes information and potentially creates CEII. 32. EEI asserts that the Commission
that Commission-generated information 29. To the contrary, inherent erred in declining to provide or clarify
contains CEII about its facility.45 differences between Commission- the applicability of any procedure or
generated CEII and CEII from process for stakeholders regarding DOE
Request submitters, as well as practical designations of its information as CEII.54
26. EEI requests that the Commission considerations, warrant different Specifically, EEI requests that the
clarify the existing procedures or procedures. As EEI acknowledges, there Commission confirm that DOE
provide the anticipated procedure for are circumstances in which it would be determinations regarding CEII will be
stakeholder ‘‘notification of, and inappropriate for an outside entity to conducted pursuant to the
opportunity to comment on, potential comment on the content of a non- Commission’s CEII regulations.55 EEI
disclosure or sharing of Commission- public, Commission-generated CEII further requests that if that is not the
generated information.’’ 46 EEI asserts document. Nonetheless, EEI asks the case, the Commission should clarify that
that the Commission erred by failing to Commission to develop a ‘‘consistent
provide a process for an entity to position, so EEI can seek further
process’’ for stakeholder participation.
comment on the possible disclosure or clarification from DOE as to the
We disagree and believe that crafting a
sharing of Commission-generated applicable procedures and criteria DOE
broad notification requirement for each
CEII.47 EEI contends that the intends to use for such
Commission-generated document that
Commission may incorporate a determinations.56
discusses CEII in some respect would be
submitter’s CEII in a Commission- impractical and, as we noted in Order Commission Determination
generated CEII document that is No. 833, often inappropriate.51
released to a CEII requester without 30. Therefore, EEI’s arguments do not 33. We deny rehearing on this issue.
providing the submitter any opportunity persuade us that a formal, mandatory In Order No. 833, the Commission
to comment. stakeholder process is needed to declined to revise our regulations to
27. EEI also contends that the comment on the release or sharing of identify specific designation criteria and
Commission could create a document Commission-generated CEII. We, CEII procedures that would be required
that combines information that alone however, clarify that nothing in the for DOE.57 EEI’s argument here does not
did not constitute CEII and was not FAST Act or the Commission’s CEII persuade us to change that
submitted to the Commission as such, regulations prevents the CEII determination. Specifically, section
but that combined with other Coordinator from exercising discretion 215A(d)(3) of the FAST Act provides
information could constitute CEII.48 EEI in an individual situation to solicit that information ‘‘may be designated’’
states that in that instance, the submitter comments from a submitter of CEII or by the Commission and DOE pursuant
would not have had an opportunity to other information when evaluating to the criteria and procedures that the
mark the information as CEII.49 EEI whether to release a Commission- Commission establishes.58 As explained
maintains that, in these situations, it generated CEII document. We note that in Order No. 833, nothing within the
would be inconsistent for the even if the Commission determines to FAST Act compels DOE to make
Commission not to provide notice and release Commission-generated CEII, changes to its regulations, and nothing
an opportunity to comment.50 such a release would be pursuant to an in the Commission’s regulations limits
NDA and the Commission’s protections DOE’s ability to designate information
Commission Determination in accordance with the FAST Act.59
against further unwarranted or
28. We grant clarification and deny prohibited disclosure.
rehearing on this issue. The FAST Act The Commission Orders
implicitly recognizes that the 51 Order No. 833, 157 FERC ¶ 61,123 at P 61. For EEI’s request for clarification is
Commission has the expertise and example, Commission-generated documents may hereby granted in part and EEI’s request
experience to determine whether any include other forms of non-public information such
as pre-decisional, internal deliberations covered by
52 Order No. 833, 157 FERC ¶ 61,123 at P 39.
the Deliberative Process Privilege. 5 U.S.C.
42 Id. P 59. 552(b)(5)(2017) (protecting from disclosure ‘‘intra- 53 Id.
sradovich on DSK3GMQ082PROD with RULES
43 Id. P 60. agency memoranda or letters which would not be 54 EEI Request at 7.
44 Id. available by law to a party other than an agency in 55 Id. at 16.
45 Id. P 61. litigation with the agency.’’); see Russell v. Dep’t of 56 Id.
46 EEI Request at 6. the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); 57 Order
see also Environmental Protection Agency v. Mink, No. 833, 157 FERC ¶ 61,123 at P 39.
47 Id. 58 FAST
410 U.S. 73, 87 (1973) (recognizing that ‘‘[i]t would Act, Public Law 114–94, section 61,003,
48 Id. at 13.
be impossible to have any frank discussions of legal 129 Stat. 1312, 1776.
49 Id. 59 Order No. 833, 157 FERC ¶ 61,123 at P 39
or policy matters in writing if all such writings were
50 Id. at 13–14. to be subjected to public scrutiny’’). (citing NOPR, 155 FERC ¶ 61,278 at P 16 n.12).
VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1](https://thefederalregister.org/doc/83_FR_24760/page/5.svg)
![Federal Register / Vol. 83, No. 104 / Wednesday, May 30, 2018 / Rules and Regulations 24661
for rehearing is denied, as discussed in New Jersey’s State Implementation Plan state to make a new SIP submission
the body of this order. (SIP) revision submittal regarding the within three years after the EPA
By the Commission. infrastructure requirements of section promulgates a new or revised NAAQS
Issued: May 17, 2018.
110(a)(1) and (2) of the Clean Air Act for approval into the existing federally-
(CAA) for the 2008 lead, 2008 ozone, approved SIP to assure that the SIP
Nathaniel J. Davis, Sr.,
2010 nitrogen dioxide, 2010 sulfur meets the applicable requirements for
Deputy Secretary. dioxide, 2011 carbon monoxide, 2006 such new and revised NAAQS.
[FR Doc. 2018–11537 Filed 5–29–18; 8:45 am] particulate matter of 10 microns or less On March 1, 2018 (83 FR 8818), the
BILLING CODE 6717–01–P (PM10), and 2012 particulate matter of EPA published a Notice of Proposed
2.5 microns or less (PM2.5) National Rulemaking (NPR) in the Federal
Ambient Air Quality Standards Register for the State of New Jersey. The
DEPARTMENT OF THE TREASURY (NAAQS). The EPA is also approving NPR proposed to approve elements of
three infrastructure requirements of the the State of New Jersey’s Infrastructure
Internal Revenue Service 1997 ozone and the 1997 and 2006 SIP submission, dated October 17, 2014,
PM2.5 NAAQS. The infrastructure and as supplemented on March 15,
26 CFR Part 1 requirements are designed to ensure that 2017, as meeting the CAA section 110(a)
the structural components of each infrastructure requirements for the
Income Taxes following NAAQS: 2008 ozone, 2008
state’s air quality management program
CFR Correction are adequate to meet the state’s lead, 2010 nitrogen dioxide (NO2), 2010
responsibilities under the CAA. sulfur dioxide (SO2), 2011 carbon
■ In Title 26 of the Code of Federal monoxide (CO), 2006 particulate matter
DATES: This final rule is effective on
Regulations, Part 1 (§§ 1.140 to 1.169), of 10 microns or less (PM10), and 2012
June 29, 2018.
revised as of April 1, 2018, on page 88, particulate matter of 2.5 microns or less
in § 1.148–1, paragraph (e)(3) is ADDRESSES: The EPA has established a
(PM2.5). Although not specifically
reinstated to read as follows: docket for this action under Docket ID
required by 110(a)(1) since neither
Number EPA–R02–OAR–2016–0625. All
NAAQS was new or revised,1 the SIP
§ 1.148–1 Definitions and elections. documents in the docket are listed on
submission included infrastructure
* * * * * the http://www.regulations.gov website.
requirements for the 2006 PM10 and
(e) * * * Although listed in the index, some
2011 CO NAAQS. As explained in the
(3) Certain hedges. Investment-type information is not publicly available,
NPR, the State has the necessary
property also includes the investment e.g., Confidential Business Information
infrastructure, resources and general
element of a contract that is a hedge (CBI) or other information whose
authority to implement the 2008 ozone,
(within the meaning of § 1.148– disclosure is restricted by statute.
2008 lead, 2010 NO2, 2010 SO2, 2011
4(h)(2)(i)(A)) and that contains a Certain other material, such as
CO, 2006 PM10, and 2012 PM2.5 NAAQS,
significant investment element because copyrighted material, is not placed on
except where specifically noted.
a payment by the issuer relates to a the internet and will be publicly The EPA also proposed to approve
conditional or unconditional obligation available only in hard copy form. three CAA section 110(a) infrastructure
by the hedge provider to make a Publicly available docket materials are requirements for the 1997 ozone and the
payment on a later date. See § 1.148– available electronically through http:// 1997 and 2006 PM2.5 NAAQS that were
4(h)(2)(ii) relating to hedges with a www.regulations.gov. conditionally approved by the EPA on
significant investment element. FOR FURTHER INFORMATION CONTACT: June 14, 2013 (78 FR 35764). New
* * * * * Anthony (Ted) Gardella, Environmental Jersey’s response to the conditional
[FR Doc. 2018–11690 Filed 5–29–18; 8:45 am] Protection Agency, 290 Broadway, New approval was not submitted to EPA
BILLING CODE 1301–00–D York, New York 10007–1866, at (212) within one year, but was submitted
637–3892, or by email at approximately three months late, and
Gardella.Anthony@epa.gov. supplemented on March 15, 2017, so the
ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: The conditional approval is treated as a
AGENCY SUPPLEMENTARY INFORMATION section is disapproval. The EPA also proposed to
arranged as follows: approve New Jersey’s October 17, 2014
40 CFR Part 52 submittal, as supplemented on March
Table of Contents 15, 2017, for the 1997 ozone and the
[EPA–R02–OAR–2016–0625, FRL–9978–
24—Region 2] I. What is the background for this action? 1997 and 2006 PM2.5 NAAQS.
II. What comments were received in response Other detailed information relevant to
Approval and Promulgation of Air to the EPA’s proposed action? this action on New Jersey’s
Quality Implementation Plans; New III. What action is the EPA taking? infrastructure SIP submission, the
Jersey; Infrastructure Requirements IV. Incororation by Reference requirements of infrastructure SIPs and
for the 2008 Lead, 2008 Ozone, 2010 V. Statutory and Executive Order Reviews the rationale for the EPA’s proposed
Nitrogen Dioxide, 2010 Sulfur Dioxide, I. What is the background for this action are explained in the NPR and the
2011 Carbon Monoxide, 2006 PM10, action? associated Technical Support Document
2012 PM2.5, 1997 Ozone, and the 1997 (TSD) in the docket and are not restated
Under sections 110(a)(1) and (2) of the here.
and 2006 PM2.5 National Ambient Air
Clean Air Act (CAA), each state is
Quality Standards
sradovich on DSK3GMQ082PROD with RULES
required to submit a State 1 EPA notes that, when promulgated, the 2006 24
AGENCY: Environmental Protection Implementation Plan (SIP) that provides hour PM10 NAAQS and the 2011 primary CO
Agency (EPA). for the implementation, maintenance, NAAQS were neither ‘‘new’’ nor ‘‘revised’’
and enforcement of a revised primary or NAAQS—they merely retained, without revision,
ACTION: Final rule. prior NAAQS for those pollutants. Accordingly,
secondary National Ambient Air Quality promulgation of these NAAQS did not trigger a new
SUMMARY: The Environmental Protection Standards (NAAQS or standard). CAA obligation for New Jersey to make infrastructure SIP
Agency (EPA) is approving elements of sections 110(a)(1) and (2) require each submissions.
VerDate Sep<11>2014 19:27 May 29, 2018 Jkt 244001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\30MYR1.SGM 30MYR1](https://thefederalregister.org/doc/83_FR_24760/page/6.svg)
Document Created: 2018-05-30 01:02:08
Document Modified: 2018-05-30 01:02:08
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Order on clarification and rehearing. | |
| Dates | This order is effective July 30, 2018. | |
| Contact | Nneka Frye, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6029, [email protected] Christopher MacFarlane, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6761, [email protected] Mark Hershfield, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8597, [email protected] | |
| FR Citation | 83 FR 24656 | |
| CFR Citation | 18
CFR
375 18 CFR 388 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR