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Federal Register / Vol. 71, No.

191 / Tuesday, October 3, 2006 / Rules and Regulations 58273

paragraph, ‘‘purchasing’’ does not fund in reliance on section 12(d)(1)(E) of DEPARTMENT OF ENERGY
include the automatic reinvestment of the Act. A shareholder does not include
dividends. a fund investing pursuant to section Federal Energy Regulatory
(3) Recordkeeping. The fund must 12(d)(1)(G) of the Act (15 U.S.C. 80a– Commission
maintain a copy of the written 12(d)(1)(G)), a trust established pursuant
agreement under paragraph (a)(2)(i) of to section 529 of the Internal Revenue 18 CFR Part 388
this section that is in effect, or at any Code (26 U.S.C. 529), or a holder of an [Docket No. RM06–24–000; Order No. 683]
time within the past six years was in interest in such a trust.
effect, in an easily accessible place. (5) Shareholder information Critical Energy Infrastructure
(b) Excepted funds. The requirements Information
agreement means a written agreement
of paragraph (a) of this section do not
under which a financial intermediary
apply to the following funds, unless Issued September 21, 2006.
agrees to:
they elect to impose a redemption fee AGENCY: Federal Energy Regulatory
pursuant to paragraph (a)(1) of this (i) Provide, promptly upon request by Commission.
section: a fund, the Taxpayer Identification
ACTION: Final rule.
(1) Money market funds; Number (or in the case of non U.S.
(2) Any fund that issues securities shareholders, if the Taxpayer SUMMARY: The Federal Energy
that are listed on a national securities Identification Number is unavailable, Regulatory Commission (Commission) is
exchange; and the International Taxpayer issuing this final rule amending its
(3) Any fund that affirmatively Identification Number or other regulations for gaining access to Critical
permits short-term trading of its government issued identifier) of all Energy Infrastructure Information (CEII).
securities, if its prospectus clearly and shareholders who have purchased, The definition of CEII is being clarified
prominently discloses that the fund redeemed, transferred, or exchanged to exclude information that the
permits short-term trading of its fund shares held through an account Commission never intended to be
securities and that such trading may with the financial intermediary, and the deemed as containing critical
result in additional costs for the fund. amount and dates of such shareholder infrastructure information. In addition,
(c) Definitions. For the purposes of purchases, redemptions, transfers, and procedural changes are being made
this section: exchanges; based on over three years experience
(1) Financial intermediary means: processing CEII requests. These changes
(ii) Execute any instructions from the
(i) Any broker, dealer, bank, or other simplify the procedures for obtaining
fund to restrict or prohibit further
person that holds securities issued by access to CEII without increasing
purchases or exchanges of fund shares
the fund, in nominee name; vulnerability of the energy
(ii) A unit investment trust or fund by a shareholder who has been
identified by the fund as having engaged infrastructure.
that invests in the fund in reliance on
section 12(d)(1)(E) of the Act (15 U.S.C. in transactions of fund shares (directly DATES: Effective Date: The rule will
80a–12(d)(1)(E)); and or indirectly through the intermediary’s become effective November 2, 2006.
(iii) In the case of a participant- account) that violate policies
FOR FURTHER INFORMATION CONTACT:
directed employee benefit plan that established by the fund for the purpose
Teresina A. Stasko, Office of the General
owns the securities issued by the fund, of eliminating or reducing any dilution
Counsel, GC–13, Federal Energy
a retirement plan’s administrator under of the value of the outstanding securities
Regulatory Commission, 888 First
section 3(16)(A) of the Employee issued by the fund; and
Street, NE., Washington, DC 20426;
Retirement Income Security Act of 1974 (iii) Use best efforts to determine, 202–502–8317.
(29 U.S.C. 1002(16)(A)) or any person promptly upon request of the fund, SUPPLEMENTARY INFORMATION:
that maintains the plan’s participant whether any specific person about
records. whom it has received the identification Before Commissioners: Joseph T. Kelliher,
Chairman; Suedeen G. Kelly, Marc Spitzer,
(iv) Financial intermediary does not and transaction information set forth in Philip D. Moeller, and Jon Wellinghoff.
include any person that the fund treats paragraph (c)(5)(i) of this section, is
as an individual investor with respect to itself a financial intermediary (‘‘indirect 1. It has been over three years since
the fund’s policies established for the intermediary’’) and, upon further the Commission issued its final order on
purpose of eliminating or reducing any request by the fund: Critical Energy Infrastructure
dilution of the value of the outstanding Information (CEII). See Critical Energy
(A) Provide (or arrange to have
securities issued by the fund. Infrastructure Information, Order No.
provided) the identification and
(2) Fund means an open-end 630, 68 FR 9857 (Mar. 3, 2003), FERC
transaction information set forth in
management investment company that Stats. & Regs. ¶ 31,140 (2003); order on
paragraph (c)(5)(i) of this section
is registered or required to register reh’g, Order No. 630–A, 68 FR 46456
regarding shareholders who hold an
under section 8 of the Act (15 U.S.C. (Aug. 6, 2003), FERC Stats. & Regs.
account with an indirect intermediary;
80a–8), and includes a separate series of ¶ 31,147 (2003). Since the issuance of
or
such an investment company. Order No. 630, the Commission has
(3) Money market fund means an (B) Restrict or prohibit the indirect continually monitored and evaluated
open-end management investment intermediary from purchasing, in the effectiveness of the CEII process.
company that is registered under the nominee name on behalf of other The most recent review indicates that
Act and is regulated as a money market persons, securities issued by the fund. changes are needed to assure the rules
fund under § 270.2a–7. Dated: September 27, 2006. work in the manner intended.
(4) Shareholder includes a beneficial 2. As explained below, the
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By the Commission.
owner of securities held in nominee Commission makes strictly procedural
Nancy M. Morris,
name, a participant in a participant- changes in this instant and final rule. In
directed employee benefit plan, and a Secretary. a notice of proposed rulemaking in
holder of interests in a fund or unit [FR Doc. E6–16273 Filed 10–2–06; 8:45 am] Docket No. RM06–23–000, which is
investment trust that has invested in the BILLING CODE 8010–01–P being issued concurrently with this final

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58274 Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / Rules and Regulations

rule, the Commission proposes other include information about proposed critical infrastructure that: (1) Relates
changes, which require notice and facilities, and to exclude information details about the production, generation,
comment. See 5 U.S.C. 553 (2000). that simply identified the location of the transportation, transmission, or
3. In this final rule the Commission infrastructure. See Order No. 630, 68 FR distribution of energy; (2) could be
clarifies and limits the definition of CEII 9857, FERC Stats. & Regs. ¶ 31,140. useful to a person in planning an attack
to minimize the amount of information After receiving a request for rehearing on critical infrastructure; (3) is exempt
which qualifies as CEII, and makes the on Order No. 630, the Commission from mandatory disclosure under the
following changes to its regulations: (1) issued Order No. 630–A on July 23, Freedom of Information Act, 5 U.S.C.
The definition of CEII is clarified; and 2003, denying the request for rehearing, 552 (2000); and (4) does not simply give
(2) requesters are required to submit but amending the rule in several the general location of the critical
executed non-disclosure agreements respects. See Order No. 630–A, 68 FR infrastructure. The particular
(NDA) with their requests. In addition, 46456, FERC Stats. & Regs. ¶ 31,147. clarifications consist of adding the
the Commission is providing notice Specifically, the order on rehearing words ‘‘specific engineering,
that, for CEII requests, the notice and made several minor procedural changes vulnerability, or detailed design’’ at the
opportunity to comment on a request and clarifications, added a reference in beginning of § 388.113(c)(1) and adding
will be combined with the notice of the regulation regarding the filing of NIP the words ‘‘details about’’ at the
release. The Commission further takes information, a term first described in beginning of § 388.113(c)(1)(i).
this opportunity to reiterate its Order No. 630, and added a 7. The Commission further clarifies
requirement that submitters segregate commitment to review the effectiveness that narratives such as the descriptions
CEII from other information and file as of the new process after six months. of facilities and processes are generally
CEII only information which truly Also on July 23, 2003, the Commission not CEII unless they describe specific
warrants being kept from public access. issued Order No. 643, which revised the engineering and design details of critical
Accordingly, this rule is being issued as Commission’s regulations to require infrastructure.
an instant and final rule because it only companies to make certain information
concerns procedural matters. See 5 available directly to the public under B. Requirement To Provide an Executed
U.S.C. 553(b)(3)(A) (2000). certain circumstances. These revisions Non-Disclosure Agreement With a CEII
4. In a notice of proposed rulemaking were necessary to conform the Request
in Docket No. RM06–23–000 issued regulations to Order No. 630. See Order 8. Requesters will now be required to
concurrently with this final rule, the No. 643, 68 FR 52089, FERC Stats. & submit an executed non-disclosure
Commission seeks comments on, among Regs. ¶ 31,149 (2003). In Order No. 662, agreement with their signed requests. As
other things: (1) Revisions to its the Commission modified its CEII CEII contains information that may be
regulations regarding CEII requests; (2) regulations to ease the burden on agents used to harm the critical infrastructure
the limited portions of various forms of owners or operators of energy of the United States, it is only fitting to
and reports the Commission now facilities that are seeking CEII relating to require that a requester execute an
defines as containing CEII; and (3) its the owner/operator’s own facility. The agreement not to disclose the
proposal to abolish the non-Internet rule also simplified federal agencies’ information, and provide that agreement
public (NIP) designation. access to CEII. See Order No. 662, 70 FR with his or her request. Often processing
Background 37031, FERC Stats. & Regs. ¶ 31,189 of a request is delayed because the
(2005). requester does not promptly submit an
5. The Commission began its efforts
Summary and Discussion executed non-disclosure agreement
with respect to CEII shortly after the
upon request. Posted on the
attacks of September 11, 2001. See I. Regulatory Changes
Statement of Policy on Treatment of Commission’s Web site at http://
Previously Public Documents, 66 FR A. Clarification of What Constitutes CEII www.ferc.gov are the various non-
52917 (Oct. 18, 2001), 97 FERC ¶ 61,130 disclosure agreements that pertain to
6. The CEII regulations were designed various types of requesters. For
(2001). The Commission’s initial step to restrict unfettered general public
was to remove from its public files and example, a member of the media should
access to critical energy infrastructure
Internet page documents such as submit the non-disclosure agreement
information, but still permit those with
oversized maps that were likely to entitled Media NDA. If a requester does
a need for the information to obtain it
contain detailed specifications of not know the appropriate non-
in an efficient manner. In other words,
facilities licensed or certified by the disclosure agreement to submit with his
CEII reflects a delicate balance between
Commission, directing the public to or her request, he or she may contact the
the due process rights of interested
request such information pursuant to Office of External Affairs at (202) 502–
persons to participate fully in
the Freedom of Information Act (FOIA) 8004. Including an executed non-
Commission proceedings and the
process detailed in 5 U.S.C. 552 (2000) disclosure agreement with an executed
Commission’s responsibility to protect
and in the Commission’s regulations at public safety by ensuring that access to request will help to expedite processing
18 CFR 388.108 (2001). In September CEII does not facilitate acts of terrorism. of requests. A CEII request will not be
2002, the Commission issued a notice of Although CEII was intended only to accepted until the Commission receives
proposed rulemaking regarding CEII, protect detailed information that would an executed NDA.
which proposed an expanded definition aid a terrorist attack, many submitters II. Reiteration of Current Regulatory
of CEII to include detailed information overutilize the designation. Therefore, Standards
about proposed facilities as well as the Commission is specifically
those already licensed or certificated by clarifying and refining the definition to A. Notice and Opportunity To Comment
the Commission. See Notice of better inform companies of what and Notice Prior To Release
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Rulemaking and Revised Statement of constitutes CEII to limit the amount of 9. Section 388.112(d) of the
Policy, 67 FR 57994 (Sept. 13, 2002); material which constitutes CEII. CEII is Commission’s regulations provides that,
FERC Stats. & Regs. ¶ 32,564 (2002). The clarified as specific engineering, among other things, when a CEII
Commission issued its final rule on CEII vulnerability, or detailed design requester seeks a document for which
on February 21, 2003, defining CEII to information about proposed or existing CEII status has been claimed, or when

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Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / Rules and Regulations 58275

the Commission itself is considering segregate public information from CEII consequently, no environmental
releasing such a document, the and file as CEII only information which consideration is necessary.
Commission will provide the submitter truly warrants being kept from ready
Regulatory Flexibility Act Certification
of the document notice and an public access.
opportunity to comment. 18 CFR 12. To this end, the Commission 16. The Regulatory Flexibility Act of
388.112(d) (2006). Section 388.112(e) of emphasizes that the Commission’s 1980 (RFA) generally requires a
the Commission’s regulations provides regulation at 18 CFR 388.112(b)(1) description and analysis of final rules
that, among other things, the requires that submitters provide a that will have significant economic
Commission or an appropriate official justification for CEII treatment. The way impact on a substantial number of small
will give notice to the submitter prior to to properly justify CEII treatment is by entities. 5 U.S.C. 601–612 (2000). The
release of a document for which CEII describing the information for which Commission is not required to make
status has been claimed. 18 CFR CEII treatment is requested and such analyses if a rule would not have
388.112(e) (2006). In processing CEII explaining the legal justification for such an effect. The Commission certifies
requests, it has been the practice of the such treatment. that this rule will not have such an
Commission to issue these notifications impact on small entities.
separately. Henceforth, the Commission C. Enforcement of Proper Designation
Document Availability
will provide the notice and opportunity and Justification
to comment in the same document as 17. In addition to publishing the full
13. The Commission retains its text of this document in the Federal
the notice of release. concern for filing abuses and will take
10. The Commission acknowledges Register, the Commission provides all
action against applicants or parties who interested persons an opportunity to
that the notice and comment process knowingly misfile information as CEII,
affords the Commission the opportunity view and/or print the contents of this
including rejection of an application document via the Internet through
to get information on the requester from where information is mislabeled as CEII
the submitter, who may be most familiar FERC’s Home Page (http://www.ferc.gov)
or where a legal justification is not and in FERC’s Public Reference Room
with the requester, and the opportunity
provided. Further, concurrent with this during normal business hours (8:30 a.m.
to get the submitter’s input into
order, the Commission is issuing a to 5 p.m. eastern time) at 888 First
potential harm from release of the
notice of proposed rulemaking in Street, NE., Room 2A, Washington, DC
information. However, experience has
Docket No. RM06–23–000 seeking 20426.
shown that only in a limited number of
comments on its proposal to, among 18. From FERC’s Home Page on the
requests has the submitter provided
other things, clarify what specific Internet, this information is available in
information about the requester. In
portions of various forms and reports the Commission’s document
many instances, the submitter provides
submitted to the Commission contain management system, eLibrary. The full
a boilerplate response that does not
address release of information to a CEII. text of this document is available on
particular requester. In an effort to Information Collection Statement eLibrary in PDF and Microsoft Word
increase the efficiency of processing format for viewing, printing, and/or
CEII requests, the Commission will 14. The Office of Management and downloading. To access this document
combine the notice of release with an Budget’s (OMB’s) regulations require in eLibrary, type the docket number
opportunity to comment. Submitters that OMB approve certain information excluding the last three digits of this
may still provide comments or input collection requirements imposed by document in the docket number field.
upon notice of release. The release agency rule. See 5 CFR 1320.12 (2006). 19. User assistance is available for
would proceed as scheduled unless the This final rule does not impose any eLibrary and the FERC’s Web site during
CEII Coordinator or her designee additional information collection normal business hours. For assistance,
receives opposition to release, in which requirements. Therefore, the please contact FERC Online Support at
case the CEII Coordinator or his or her information collection regulations do 1–866–208–3676 (toll free) or 202–502–
designee will issue a revised notice. The not apply to this final rule. 6652 (e-mail at
vast majority of submitters support FERCOnlineSupport@FERC.gov), or the
Environmental Analysis Public Reference Room at 202–502–
release with a properly executed NDA.
Only in extremely rare instances would 15. The Commission is required to 8371, TTY 202–502–8659 (e-mail at
a submitter’s comments be the prepare an Environmental Assessment public.referenceroom@ferc.gov).
determinative factor in not releasing or an Environmental Impact Statement Effective Date
CEII. These rare instances should not for any action that may have a
significant adverse effect on the human 20. These regulations are effective
impede an efficient CEII process. In the November 2, 2006. The provisions of 5
event a submitter provides comments environment. See Order No. 486,
Regulations Implementing the National U.S.C. 801 (2000) regarding
opposing release, the information would Congressional review of final rules do
not be released until the submitter Environmental Policy Act, 52 FR 47897
(Dec. 17, 1987), FERC Stats. & Regs. not apply to this final rule, because the
receives a revised notice of release. rule concerns agency procedure and
Preambles 1986–1990 ¶ 30,783 (1987).
B. Requirement To Segregate and Justify The Commission has categorically practice and will not substantially affect
CEII excluded certain actions from this the rights of non-agency parties.
11. The CEII process was not intended requirement as not having a significant List of Subjects in 18 CFR Part 388
as a mechanism for companies to effect on the human environment. Confidential business information,
withhold from public access Included in the exclusions are rules that Freedom of information.
information that does not pose a risk of are clarifying, corrective, or procedural
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attack on the energy infrastructure. or that do not substantially change the By the Commission.
Therefore, in an effort to achieve proper effect of the regulations being amended. Magalie R. Salas,
designation while avoiding misuse of See 18 CFR 380.4(a)(2)(ii) (2006). This Secretary.
the CEII designation, the Commission rule is procedural in nature and ■In consideration of the foregoing, the
reiterates its requirement that submitters therefore falls under this exception; Commission amends Part 388, Chapter I,

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58276 Federal Register / Vol. 71, No. 191 / Tuesday, October 3, 2006 / Rules and Regulations

Title 18, Code of Federal Regulations, as Coordinator will determine what PART 31—EMPLOYMENT TAXES AND
follows: conditions, if any, to place on release of COLLECTION OF INCOME TAX AT
the information. The CEII Coordinator’s SOURCE
PART 388—INFORMATION AND decisions regarding release of CEII are
REQUESTS subject to rehearing as provided in ■ Paragraph 1. The authority citation
§ 385.713 of this chapter. Copies of for part 31 continues to read in part as
■ 1. The authority citation for part 388 follows:
continues to read as follows: requests for rehearing of the CEII
Coordinator’s decision must be served Authority: 26 U.S.C. 7805 * * *
Authority: 5 U.S.C. 301–305, 551, 552 (as on the CEII Coordinator and the
amended), 553–557; 42 U.S.C. 7101–7352. § 31.3402(g)–1 [Corrected]
Associate General Counsel for General
■ 2. In § 388.113, paragraphs (c)(1), Law. ■ Par. 2. Section 31.3402(g)–1 is
(d)(3)(i), and (d)(3)(ii) are revised to read amended by removing the last sentence
* * * * *
as follows: from paragraph (a)(8), Example 4 (i).
[FR Doc. E6–15820 Filed 10–2–06; 8:45 am]
BILLING CODE 6717–01–P Cynthia E. Grigsby,
§ 388.113 Accessing critical energy
infrastructure information. Senior Federal Register Liaison Officer,
Publications and Regulations Branch, Legal
* * * * * Processing Division, Associate Chief Counsel,
(c) * * * DEPARTMENT OF THE TREASURY
(Procedure and Administration).
(1) Critical energy infrastructure
Internal Revenue Service [FR Doc. E6–16237 Filed 10–2–06; 8:45 am]
information means specific engineering,
BILLING CODE 4830–01–P
vulnerability, or detailed design
information about proposed or existing 26 CFR Part 31
critical infrastructure that: [TD 9276]
(i) Relates details about the DEPARTMENT OF THE TREASURY
production, generation, transportation, RIN 1545–BD96
Internal Revenue Service
transmission, or distribution of energy;
(ii) Could be useful to a person in Flat Rate Supplemental Wage
Withholding; Correction 26 CFR Part 31
planning an attack on critical
infrastructure; AGENCY: Internal Revenue Service (IRS), [TD 9276]
(iii) Is exempt from mandatory Treasury. RIN 1545–BD96
disclosure under the Freedom of
ACTION: Correcting amendment.
Information Act, 5 U.S.C. 552; and Flat Rate Supplemental Wage
(iv) Does not simply give the general SUMMARY: This document contains a Withholding; Correction
location of the critical infrastructure. correction to final regulations (TD
* * * * * AGENCY: Internal Revenue Service (IRS),
9276), that were published in the
(d) * * * Treasury.
Federal Register on Tuesday, July 25,
(3) * * * 2006 (71 FR 142). These regulations ACTION: Correction to final regulations.
(i) File a signed, written request with apply to all employers and others
the Commission’s CEII Coordinator. The SUMMARY: This document contains a
making supplemental wage payments to correction to final regulations (TD
request must contain the following: employees.
Requester’s name (including any other 9276), that were published in the
DATES: This correction is effective Federal Register on Tuesday, July 25,
name(s) which the requester has used
January 1, 2007. 2006 (71 FR 142). These regulations
and the dates the requester used such
name(s)), date and place of birth, title, FOR FURTHER INFORMATION CONTACT: A.G. apply to all employers and others
address, and telephone number; the Kelley, (202) 622–6040 (not a toll-free making supplemental wage payments to
name, address, and telephone number of number). employees.
the person or entity on whose behalf the SUPPLEMENTARY INFORMATION: DATES: This correction is effective
information is requested; a detailed January 1, 2007.
statement explaining the particular need Background FOR FURTHER INFORMATION CONTACT: A.
for and intended use of the information; The final regulations (TD 9276) that G. Kelley, (202) 622–6040 (not a toll-free
and a statement as to the requester’s are the subject of this correction are number).
willingness to adhere to limitations on under sections 3401 and 3402 of the SUPPLEMENTARY INFORMATION:
the use and disclosure of the Internal Revenue Code.
information requested. A requester must Background
Need for Correction
also file an executed non-disclosure The final regulations (TD 9276) that is
agreement. Requesters are also As published, TD 9276 contains the subject of this correction are under
requested to include their social language that is repetitious. sections 3401 and 3402 of the Internal
security number for identification List of Subjects in 26 CFR Part 31 Revenue Code.
purposes.
(ii) Once the request is received, the Employment taxes, Income taxes, Need for Correction
CEII Coordinator will determine if the Penalties, Pensions, Railroad retirement, As published, TD 9276 contains an
information is CEII, and, if it is, whether Reporting and recordkeeping error that may prove to be misleading
to release the CEII to the requester. The requirements, Social security, and is in need of clarification.
CEII Coordinator will balance the Unemployment compensation.
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Correction of Publication
requester’s need for the information Correction of Publication
against the sensitivity of the ■ Accordingly, the publication of the
information. If the requester is ■ Accordingly, 26 CFR part 31 is final regulations (TD 9276), that were
determined to be eligible to receive the corrected by making the following the subject of FR Doc. E6–11764, is
information requested, the CEII correcting amendment: corrected as follows:

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