US FERC 18 CFR 388.112: Privileged CEII Treatment Guide

Key Takeaways

• A justification is mandatory for any request for privileged treatment.
• Filers must submit a public redacted version of documents.
• Non-public documents are released within 5 days of an executed protective agreement.
• An objection to disclosure halts document release until a FERC decision.

Understanding 18 CFR 388.112

18 CFR 388.112 outlines the procedures for requesting privileged treatment for documents submitted to the Federal Energy Regulatory Commission (FERC). This regulation falls under 18 CFR Part 388. It establishes the statutory requirements for handling sensitive information in FERC filings. The rules governing Critical Energy/Electric Infrastructure Information (CEII) are contained in § 388.113.

Requesting Privileged Treatment

When you submit material to the Commission and seek privileged treatment, specific steps are required. A person requesting that material be treated as privileged information must include in its filing a justification for such treatment. This justification explains why the information qualifies for privileged status.

The filer must also submit to the Commission a public version with the information that is claimed to be privileged material redacted. The confidential portions of the filing must be marked "DO NOT RELEASE."

Protective Agreements

In proceedings where intervention rights exist, filers must provide a proposed form of protective agreement with the filing. Alternatively, they can identify a protective agreement that has already been filed in the proceeding. The filer must provide the public version of the document and its proposed form of protective agreement to each entity that is required to be served with the filing.

Non-Public Document Release

Once a protective agreement is in place, specific timelines apply for non-public document access. The filer must provide a copy of the complete, non-public document to the requesting person within 5 days after receipt of the written request that is accompanied by an executed copy of the protective agreement.

Objections to Disclosure

The process for releasing non-public documents can be paused if an objection is raised. If an objection to disclosure is filed, the filer shall not provide the non-public document to the person or class of persons identified in the objection. This restriction remains in effect until ordered by the Commission or a decisional authority.

Access to Information

Access to this material can also be sought pursuant to a FOIA request. This provides an alternative pathway for obtaining information under the Freedom of Information Act.