E8-18040. Critical Energy Information Infrastructure

AGENCY:

Federal Energy Regulatory Commission, DOE.

ACTION:

Correcting amendment.

SUMMARY:

This document contains corrections to the final regulations (Docket No. RM06-23-000) which were published in the Federal Register of Wednesday, November 14, 2007. The final rule document amended regulations for gaining access to critical energy infrastructure information (CEII).

DATES:

Effective Date: August 6, 2008.

FOR FURTHER INFORMATION CONTACT:

Jeffrey H. Kaplan, Office of the General Counsel, 888 First Street, NE., Washington, DC 20426, 202-502-8305.

SUPPLEMENTARY INFORMATION:

Background

The final regulations that are the subject of these corrections amended 18 CFR 388.109 and affect the Commission's fees for records requests.

Need for Correction

As published, the final regulations contained errors which involved the removal of subparagraphs from 18 CFR 388.109(b). These subparagraphs contain critical information addressing fees for records requests.

List of Subjects in 18 CFR Part 388

• Confidential business information
• Freedom of information

Accordingly, 18 CFR part 388 is corrected by making the following correcting amendment:

PART 388—INFORMATION AND REQUESTS

1. The authority citation for part 388 continues to read as follows:

Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557, 41 U.S.C. 7101-7352.

2. Section 388.109(b) is amended by adding paragraphs (b)(1), (b)(2), (b)(3), (b)(4) and (b)(5) to read as follows:

§ 388.109

Fees for record requests.

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(b) * * *

(1) Definitions: For the purpose of paragraph (b) of this section.

(i) Commercial use request means a request from or on behalf of one who seeks information for a use or purpose that furthers commercial trade, or profit interests as these phrases are commonly known or have been interpreted by the courts in the context of the Freedom of Information Act.

(ii) Educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program of scholarly research.

(iii) Noncommercial scientific institution refers to an installation that is not operated on a commercial basis and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.

(iv) Representatives of the news media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when the periodicals can qualify as disseminations of “news”) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g. electronic dissemination of newspapers through telecommunication services), such alternative media may be included in this category. A freelance journalist may be regarded as working for a news organization if the journalist can demonstrate a solid basis for expecting publication through that organization, even though the journalist is not actually employed by the news organization. A publication contract would be the clearest proof, but the Commission may also look to the past publication record of a requester in making this determination.

(2) Fees. (i) If documents are requested for commercial use, the Commission will charge the employee's hourly pay rate plus 16% for benefits for document search time and for document review time, and 15 cents per page for duplication. Commercial use requests are not entitled to two hours of free search time or 100 free pages of reproduction of documents.

(ii) If documents are not sought for commercial use and the request is made by an educational or non-commercial scientific institution, whose purpose is scholarly or scientific research, or a representative of the news media, the Commission will charge 15 cents per page for duplication. There is no charge for the first 100 pages.

(iii) For a request not described in paragraphs (b)(2)(i) or (ii) of this section, the Commission will charge the employees hourly pay rate plus 16 percent for benefits for document search and 15 cents per page for duplication. There is no charge for the first 100 pages of reproduction and the first two hours of search time will be furnished without charge.

(iv) The Director, Office of External Affairs, will normally provide documents by regular mail, with postage prepaid by the Commission. However, the requester may authorize special delivery, such as express mail, at the requester's own expense.

(v) The Commission, or its designee, may establish minimum fees below which no charges will be collected, if it determines that the costs of routine collection and processing of the fees are likely to equal or exceed the amount of the fees. If total fees assessed by Commission staff for a Freedom of Information Act request are less than the appropriate threshold, the Commission may not charge the requesters.

(vi) Payment of fees must be by check or money order made payable to the U.S. Treasury.

(vii) Requesters may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When the Commission reasonably believes that a requester, or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading assessment of fees, or otherwise reasonably believes that two or more requests constitute a single request, the Commission may aggregate any such requests accordingly. The Commission will not aggregate multiple requests on unrelated subjects from a requester. Aggregated requests may qualify for an extension of time under § 388.110(b).

(3) Fees for unsuccessful search. The Commission may assess charges for time spent searching, even if it fails to locate the records, or if records located are determined to be exempt from disclosure. If the Commission estimates that search charges are likely to exceed $25, it will notify the requester of the estimated amount of search fees, unless the requester has indicated in advance willingness to to pay fees as high as those anticipated. The requester can meet with Commission personnel with the object of reformulating the request to meet his or her needs at a lower cost.

(4) Interest—notice and rate. The Commission will assess interest charges on an unpaid bill starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in 31 U.S.C. 3717 and will accrue from the date of the billing.

(5) Advance payments. The Commission will require a requester to make an advance payment, i.e., payments before work is commenced or continued on a request, if:

(i) The Commission estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. The Commission will notify the requester of the estimated cost and either require satisfactory assurance of full payment where the requester has a history of prompt payment of fees, or require advance payment of charges if a requester has no history of payment; or

(ii) A requester has previously failed to pay a fee charged in a timely fashion. The Commission will require the requester to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Commission will begin to process a new request or a pending request from that requester. When the Commission requires advance payment or an agreement to pay under this paragraph, or under § 388.108(a)(5), the administrative time limits prescribed in this part will begin only after the Commission has received the required payments, or agreements.

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Kimberly D. Bose,

Secretary.