Critical Electric Infrastructure Information (CEII) Protection (2020 Transition)

Book 2 - Issue Papers
Entire 2020 DOE Transition book As of October 2020

The protection of Critical Electric Infrastructure Information (CEII) encourages industry to share sensitive information with the Department of Energy and increases DOE’s ability to execute responsibilities as the Sector-Specific Agency for Energy.

Summary

The Critical Electric Infrastructure Information (CEII) designation protects and secures critical information about the Nation’s electric infrastructure as part of the Department of Energy’s (DOE) commitment to improving energy security while ensuring a reliable and resilient flow of energy to America’s communities and businesses. In the CEII final rule, DOE established administrative procedures for how the Department will designate, protect, and share CEII. The rule also provides procedures for DOE coordination with other Federal agency partners and industry to facilitate mutual understanding and information sharing as it may relate to CEII.

CEII is a category of controlled unclassified information about a system or asset of the bulk-power system, whether physical or virtual, that if destroyed or incapacitated would negatively affect the United States’ national security; economic security; public health or safety; or any combination of such effects. A CEII designation exempts the information about physical and virtual assets of the bulk-power system from public release under the Freedom of Information Act (FOIA) and other laws requiring government disclosure of certain information or records. As a general principle, DOE will not designate information as CEII if it has been made publicly available previously by an owner or generator of the CEII.

Key Points

• The Fixing America’s Surface Transportation (FAST) Act added Section 215A to the Federal Power Act, which authorizes both the Secretary of Energy and the Federal Energy Regulatory Commission (FERC) to designate information as CEII. DOE’s CEII rule is contained in 10 C.F.R § 1004.13, and FERC’s CEII rule is contained in 18 C.F.R. § 388.113.
• DOE’s CEII rule supports and encourages information sharing between government and industry by ensuring the security of CEII. It also provides procedures for DOE coordination with other Federal agency partners (e.g., the Department of Homeland Security, FERC) to facilitate mutual understanding and implementation among Federal information classification programs as it may relate to CEII.
• CEII designation lasts for five years and can be renewed at the Department’s discretion. The designation exempts data or information from disclosure under FOIA and other laws requiring government disclosure of certain information or records.
• DOE previously released a Notice of Proposed Rulemaking for the CEII designation on October 29, 2018, and received fourteen sets of comments over a 60-day comment period.
• The CEII final rule became effective on May 15, 2020.
• On April 14, 2020, Public Citizen and the Union of Concerned Scientists filed a petition for rehearing with DOE on five grounds related to:
  1. DOE’s statutory authority to issue the CEII Final Rule;
  2. The CEII Final Rule’s alleged inconsistency with the FOIA and Federal Records Act;
  3. Due process concerns with accessing CEII in the course of DOE proceedings;
  4. DOE’s justification for the CEII Final Rule under the Administrative Procedure Act (APA); and
  5. DOE’s alleged failure to provide notice and an opportunity to meaningfully comment during the rulemaking proceeding. The petitioner urged DOE to voluntarily withdraw or revise the CEII final rule to remedy their alleged injuries.
• On July 13, 2020, Secretary of Energy Dan Brouillette issued an order denying the rehearing request.
• On July 13, 2020, the Union of Concerned Scientists filed a petition for review of the Department’s Order on Rehearing and CEII final rule in the U.S. Court of Appeals for the District of Columbia Circuit.
• The U.S. Department of Justice (DOJ) is arguing the case on behalf of DOE. OE, through GC-76, provided a certified index to the administrative record of the CEII final rule to DOJ, which was filed in the D.C. Circuit on August 31, 2020.
• On September 29, 2020, the court issued an initial briefing schedule:

November 9	Petitioner's Brief Due
December 9	Respondent's Brief Due
December 30	Petitioner's Response Brief Due
January 31, 2021	Final Briefs Due

• OE staff continue to work with GC staff and are awaiting the petitioner’s brief in the aforementioned lawsuit.
• OE staff are currently working with the Office of the Chief Information Officer to develop an electronic tracking system that will track all CEII requests and designations.
• OE staff are working with DOE’s Office of Management to begin the process of developing a Department-wide directive that will instruct all Department staff on how to identify, mark, and protect CEII.