[Federal Register Volume 77, Number 209 (Monday, October 29, 2012)]
[Rules and Regulations]
[Pages 65463-65477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26126]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 4, 5, 16, 33, 34, 35, 157, 348, 375, 385 and 388
[Docket No. RM12-2-000; Order No. 769]
Filing of Privileged Materials and Answers to Motions
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
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SUMMARY: In this Final Rule, the Commission revises its rules and
regulations relating to the filing of privileged material in keeping
with the Commission's efforts to comply with the Paperwork Reduction
Act, the Government Paperwork Elimination Act and the E-Government Act
of 2002. First, the Commission establishes two categories of privileged
material for filing purposes: Privileged material and critical energy
infrastructure information. This revision will expand the ability to
file electronically by permitting electronic filing of materials
subject to Administrative Law Judge protective orders as appropriate.
Second, the Commission revises its regulations to provide a single set
of uniform procedures for filing privileged materials. These revisions
continue the Commission's effort to reassess and streamline its
regulations to ensure that they are efficient, effective and up to
date.
Also, the Commission revises Rule 213(d) of its Rules of Practice
and Procedure, which establishes the timeline for filing answers to
motions, to clarify that the standard fifteen day reply time will not
apply to motions requesting an extension of time or a shortened time
period for action. Instead, the Commission proposes to set the time for
responding to such motions at five days, unless another time period is
established by notice based on the circumstances.
DATES: Effective Date: This final rule is effective December 28, 2012.
FOR FURTHER INFORMATION CONTACT:
Christopher Cook (Technology/Procedural Information), Office of the
Executive Director, Federal Energy Regulatory Commission, 888 First
Street NE., Washington, DC 20426, Telephone: (202) 502-8102.
Richard M. Wartchow (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426, Telephone: (202) 502-8744.
SUPPLEMENTARY INFORMATION:
Order No. 769
Final Rule
Table of Contents
Paragraph
Nos.
I. Background............................................... 3
A. Electronic Filing Procedures......................... 3
B. Notice of Proposed Rulemaking and Comments........... 9
II. Regulations for Filing Privileged Materials............. 12
A. Designation of Confidential Materials as 20
``Privileged''.........................................
1. Comments......................................... 21
2. Commission Response.............................. 22
B. Establishing Separate Regulations Governing CEII 24
Information............................................
C. Form and Use of Protective Agreement................. 29
1. Comments......................................... 30
2. Commission Response.............................. 36
D. Consistency With Discovery Procedures Used in 44
Administrative Proceedings.............................
1. Comments......................................... 45
2. Commission Response.............................. 46
E. Procedures for Distributing Privileged Information... 48
1. Comments......................................... 49
2. Commission Response.............................. 55
F. NERC Notices of Penalty and Other Communications..... 61
1. Comments......................................... 61
2. Commission Response.............................. 64
G. Electronic Filing Procedures......................... 66
H. Prospective Effect................................... 68
I. Changes to Text of Proposed Regulations.............. 70
1. Changes Adopted.................................. 71
2. Proposed Changes Not Accepted.................... 77
III. Revised Time for Filing Answers to Motions for 81
Extensions of Time or Expedited Action Dates...............
1. Comments......................................... 83
2. Commission Response.............................. 85
IV. Information Collection Statement........................ 88
V. Environmental Analysis................................... 91
VI. Regulatory Flexibility Act.............................. 92
[[Page 65464]]
VII. Document Availability.................................. 94
VIII. Effective Date and Congressional Notification......... 97
List of Subjects
Regulatory Text
Order No. 769
Final Rule
Issued October 18, 2012.
1. In this Final Rule, the Commission revises its rules and
regulations relating to the filing of privileged material in keeping
with the Commission's efforts to comply with the Paperwork Reduction
Act, the Government Paperwork Elimination Act and the E-Government Act
of 2002. First, the Commission establishes two categories of privileged
material for filing purposes: privileged material and critical energy
infrastructure information (CEII). This revision will expand the
ability to file electronically by permitting electronic filing of
materials subject to Administrative Law Judge (ALJ) protective orders
as appropriate. Second, the Commission revises its regulations to
provide a single set of uniform procedures for filing privileged
materials. These revisions continue the Commission's effort to reassess
and streamline its regulations to ensure that they are efficient,
effective and up to date.
2. Also, the Commission revises Rule 213(d) of its Rules of
Practice and Procedure, which establishes the timeline for filing
answers to motions, to clarify that the standard fifteen day reply time
will not apply to motions requesting an extension of time or a
shortened time period for action. Instead, the Commission proposes to
set the time for responding to such motions at five days, unless
another time period is established by notice based on the
circumstances.
I. Background
A. Electronic Filing Procedures
3. In 2000, the Commission first permitted filers to use the
Internet to submit documents to the Commission.\1\ Such submissions
were limited to categories of documents specified by the Secretary of
the Commission (Secretary), with the intention of gradually expanding
the range of eligible documents.\2\ In 2007, the Commission implemented
eFiling 7.0 which permitted a much broader range of documents to be
submitted through the eFiling interface.\3\ In 2008, the Commission, in
collaboration with the wholesale electric and gas quadrants of the
North American Energy Standards Board and representatives from the
Association of Oil Pipelines, implemented a set of standards to be used
by companies in electronically filing tariff and tariff-related
documents at the Commission.\4\ Under the Commission's regulations,
only ``qualified documents'' may be filed via the Internet, and the
Secretary is authorized to specify which documents are qualified and to
issue filing instructions.\5\ A list of qualified documents is
published on the Commission's Web site.\6\
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\1\ Electronic Filing of Documents, Order No. 619, 65 FR 57088
(Sept. 21, 2000), FERC Stats. & Regs. ] 31,107 (2000).
\2\ See Rule 2003(c) of the Commission's Rules of Practice and
Procedure, 18 CFR 385.2003(c).
\3\ Filing Via the Internet, Order No. 703, FERC Stats. & Regs.
] 31,259 (2007) (amending Rule 2003(c)).
\4\ Electronic Tariff Filings, Order No. 714, FERC Stats. &
Regs. ] 31,276 (2008).
\5\ Rule 2003(c), 18 CFR 385.2003(c); Rule 2003(c)(1)(ii), 18
CFR 385.2003(c)(1)(ii); see http://www.ferc.gov/docs-filing/efiling/user-guide.asp.
\6\ See http://www.ferc.gov/docs-filing/efiling/docs-efiled.asp.
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4. The eFiling system plays an important role in the Commission's
efforts to comply with the Government Paperwork Elimination Act, which
requires that agencies provide the option to submit information
electronically, when practicable, as a substitute for paper.\7\ Users
of the Commission's eFiling system and related activities must register
electronically through the Commission's eRegistration system.\8\ Filing
via the Internet is optional for eligible documents.\9\ The eFiling
system now is receiving a substantial majority of all documents filed
at the Commission. The system is accessible through the Commission's
Web site at http://www.ferc.gov/docs-filing/efiling.asp.
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\7\ Public Law 105-277, Sec. 1702-1704 (1998); see OMB Circular
A-130 Paragraph 8.a.1(k).
\8\ 18 CFR 390.1 and 18 CFR 390.2.
\9\ Rule 2001(a) of the Commission's Rules of Practice and
Procedure, 18 CFR 385.2001(a).
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5. [Paragraph blank]
6. Currently, the Commission accepts through electronic filing all
documents, including privileged material and CEII,\10\ except for
documents submitted pursuant to an ALJ's protective order and some
forms.\11\ The Commission's current procedures for submitting materials
subject to ALJ protective orders require filers to submit an original
copy of the document in hard copy or on electronic media, along with
the requisite number of copies, pursuant to section 388.112 of the
Commission's regulations. While the Commission permits electronic
filing of documents subject to a claim of privilege not subject to an
ALJ protective order, the Commission currently does not have a standard
set of procedures for submitting such documents.
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\10\ 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, at P 65 (2003) (providing that
privileged material and CEII may be filed under 18 CFR 388.112 on
electronic media--including compact discs, computer diskettes, and
tapes--and noting that the Commission would accept non-public
documents through its electronic filing process at some point in the
future).
\11\ Order No. 703, FERC Stats. & Regs. ] 31,259 at P 9. The
following are submitted through eForms: FERC Form No. 1, FERC Form
No. 2, FERC Form No. 2-A, FERC Form No. 3-Q, FERC Form No. 6, FERC
Form No. 6-Q, FERC Form No. 60, FERC Form No. 714, and Electric
Quarterly Reports. FERC Form 1-F is currently not included in
eForms.
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7. The Commission's current complaint and answer regulations
(sections 385.206 and 385.213) contain detailed requirements for
submitting privileged materials. Under these regulations, a party
filing a complaint or an answer with privileged and/or confidential
material is required to submit a request for privileged treatment of
documents, a public redacted document, a privileged unredacted
document, and a proposed form of protective agreement.\12\ The filer
must serve the public, redacted copy on appropriate parties and other
entities required to be served and must provide a copy of the non-
public, unredacted material to any participant or entity whose name is
on the official service list (compiled by the Secretary) and who has
signed the protective agreement.
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\12\ See Astoria Generating Co., L.P. v. New York Independent
System Operator, Inc., 136 FERC ] 61,155, at P 25 (2011) (Astoria).
The Commission's filing requirements for CEII and privileged
material are provided in the ``Submission Guidelines'' available via
the eFiling link on the Commission's Web site at http://www.ferc.gov.
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8. In recent years, the Commission has been receiving a larger
number of requests for privileged treatment of documents not associated
with
[[Page 65465]]
complaints or answers.\13\ The request for privileged treatment has in
some cases delayed the ability of the Commission to process such
filings because the Commission was required to issue special orders or
notices to ensure that parties could obtain access to the privileged
material they needed in order to be able to participate in the
proceeding.\14\ Particularly, in cases involving statutory deadlines,
such delays affect the ability of parties to submit timely, well
informed comments, as well as the Commission's ability to process those
comments.
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\13\ See ANR Pipeline Co., 129 FERC ] 61,080 (2009); PPL
Montana, LLC, 113 FERC ] 61,231 (2005).
\14\ See West Deptford Energy, LLC, 134 FERC ] 61,189 (2011)
(denying request to limit parties' rights to see documents). See
also PPL Montana, LLC, 113 FERC ] 61,231 (2005); PJM
Interconnection, L.L.C., Notice of Filing, Docket No. ER05-10-000
(May 6, 2005); PJM Interconnection, L.L.C., Notice of Filing, Docket
No. ER04-539-002 (April 30, 2004).
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B. Notice of Proposed Rulemaking and Comments
9. In its December 16, 2011 Notice of Proposed Rulemaking (NOPR),
the Commission proposed to revise its regulations to address two
outstanding concerns.\15\ First, the Commission proposed uniform
procedures for filing privileged materials in any proceeding in which a
right of intervention exists. The Commission proposed to (a) provide
two categories of privileged material for filing purposes, namely
categories for CEII and all other privileged materials, (b) set up
uniform procedures for filing and accessing privileged materials in
most proceedings with a right to intervene, based upon the current
complaint/answer process in Rules 206 and 213,\16\ and (c) consolidate
the Commission's regulations for submitting privileged materials in
proposed section 388.112.
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\15\ Filing of Privileged Materials and Answers to Motions,
Notice of Proposed Rulemaking, 76 FR 80838 (Dec. 27, 2011) (NOPR),
FERC Stats. & Regs. ] 32,685 (2011).
\16\ 18 CFR 385.206-.213.
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10. Second, the Commission proposed to revise its answer
regulations, Rule 213, to provide an opportunity for parties to file
answers to requests for extension of the time to take action under the
Commission's orders and regulations or seeking expedited action where
the time to act on these requests may fall sooner than the standard 15
day answer date. To provide an opportunity for interested parties to
respond and facilitate the Commission's response to such motions, the
Commission proposed to shorten the answer period for these motions to
five business days. In addition, the Commission proposed conforming
revisions, in particular, revisions to the Secretary's delegated
authority under 18 CFR 375.302(b), to clarify the Secretary's authority
to address shortened answer periods for requests for extension of time,
consistent with the delegated authority of other office directors.\17\
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\17\ See, e.g., 18 CFR 375.307(b)(1)(ii).
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11. In response to the NOPR, American Public Gas Association
(APGA), Edison Electric Institute (EEI), Electric Power Supply
Association (EPSA), Interstate Natural Gas Association (INGA),
International Transmission Co. (ITC), MidAmerican Energy Holdings
Company (MidAmerican), North American Electric Reliability Corp.
(NERC), PJM Interconnection, L.L.C. and Transmission Dependent Utility
Systems (TDU) \18\ submitted comments. EPSA and PJM support the
Commission's proposal to consolidate and establish uniform procedures
for filing privileged materials and establish two categories for filing
purposes, citing efficient and easily implemented procedures to allow
market participants to designate materials as confidential and provide
assurance that commercially sensitive and other confidential
information will be safe from inadvertent disclosure, without the need
for procedural orders. The Commission will address other concerns
raised in the comments in the discussion below.
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\18\ Consisting of Arkansas Electric Coop. Corp., Golden Spread
Electric Coop., Inc., Kansas Electric Power Coop., Inc., North
Carolina Electric Membership Corp., Power South Energy Coop. and
Seminole Electric Coop., Inc.
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II. Regulations for Filing Privileged Materials
12. In this Final Rule, the Commission largely adopts the NOPR
proposal to consolidate the Commission's regulations for filing
privileged materials in section 388.112 and establish procedures in
that section for distribution of such materials pursuant to a
protective agreement in proceedings with a right to intervene. The
protective agreement provisions largely parallel the existing
regulations governing complaints and answers. These regulations will
expand those procedures to cover other types of filings, such as
statutory public utility or pipeline filings, and protests in those
filings, containing confidential information. With these revisions, the
Commission is taking advantage of the technologies available to the
Commission to safely and securely accept materials by designating them
as privileged, while providing for limited use of the materials in
proceedings in which other parties must review the materials, by
requiring the filing party to make them available pursuant to a
protective agreement. In instances where the filer elects to
electronically file materials with a protective agreement, submission
of the identical hard copy files to the Commission will no longer be
necessary. Permitting privileged materials to be submitted via eFiling
will facilitate entry of the documents into the Commission's document
repository, eLibrary, and will make them available to staff conducting
analysis of the documents. Electronic filing will simplify retrieval of
the documents in the course of the Commission's duties because the
documents may be accessed via the Commission electronic archive in
eLibrary, and Commission staff will no longer have to retrieve hard
copy documents from offsite document storage. This will avoid the
resulting delay in obtaining materials.
13. The consolidated filing procedures, as well as the protective
agreement provisions for proceedings in which a right to intervene
exists are included in revised section 388.112. Revised section
388.112(a)(1) adopts the Commission's long-standing usage of the term
``privileged materials'' to refer to information subject to an
outstanding claim of exemption from mandatory disclosure under the
Freedom of Information Act (FOIA), including CEII.\19\ The changes
adopted in this rule retain the disclaimer that by permitting the
filing of privileged materials and treating the documents for which a
privilege is claimed as nonpublic, the Commission is not making a
determination on the merits as to any claim of privilege or CEII
status.\20\ Revised section 388.112(b) retains the requirement that a
filer include a justification for privileged treatment in its filing,
following the procedures posted on the Commission's Web site.\21\
Revised section 388.112(b)(1) requires a person requesting privileged
or CEII treatment to designate the material as privileged or CEII in an
electronic filing, or clearly indicate a request for privileged
treatment on a paper filing, with headings indicating privileged and
[[Page 65466]]
CEII material.\22\ Section 388.112(b)(1) states that a person
requesting that a document filed with the Commission be treated as
privileged or CEII must designate the document as privileged or CEII in
making an electronic filing or clearly indicate a request for such
treatment on a paper filing. The header of the first page of the cover
sheet or transmittal letter and of the pages or portions of the
document containing material for which privileged treatment is claimed
should be clearly labeled in bold, capital lettering, indicating that
it contains privileged, confidential and/or Critical Energy
Infrastructure Information, as appropriate, and marked ``DO NOT
RELEASE.''
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\19\ See also 18 CFR 388.107(g); 18 CFR 388.113(c) (defining
CEII as information that is exempt from mandatory disclosure under
FOIA, providing that CEII be filed under section 388.112(b), and
establishing specific procedures for making CEII available pursuant
to a non-disclosure agreement).
\20\ See revised section 388.112(c)(i).
\21\ See the Submission Guidelines on the Documents and Filing
link at http://www.ferc.gov.
\22\ This provision follows the Commission's existing practice
for filing privileged materials in complaint proceedings in Rule
206, 18 CFR 385.206.
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This means that, when a person files a document containing
privileged material, that person must prominently indicate the fact
that the filing contains privileged material, using an appropriate
header on the cover page of the filing. In most cases, the header must
be included on the accompanying filing letter or first page of a
pleading or motion, and on the separate cover of any portion of the
document that contains privileged material, such as an affidavit,
exhibit, attachment, etc. In addition, the individual pages should be
marked to indicate that the page contains privileged material, and the
material identified on the page.
14. The revised regulations make special provision in proceedings
featuring a right to intervene, including complaint, certificate,
merger and rate filings, to facilitate review of the privileged
materials by intervening parties. In such proceedings, a person filing
privileged material is required to include a public, redacted copy of
the filing and a proposed form of protective agreement and serve these
items on the appropriate persons, that is, those required by Commission
rule or order, or by law.\23\ The revised regulations provide that the
filing person will thereafter provide a copy of the privileged
materials to interveners that request the material and execute the
protective agreement within five days or file an objection.\24\
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\23\ Revised section 388.112(b)(2). Under revised section
388.112(b)(2)(ii) service is to be made to persons to be served
under Rule 206(c), 18 CFR 385.206(c) (complaints) or Rule 213, 18
CFR 385.213(c)(5) (answers), or otherwise as appropriate.
\24\ Trial Staff, as identified in 18 CFR 385.102(b)(2), should
be treated similarly to other persons making a request.
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15. The Commission's Model Protective Order may be used as a guide
for protective agreements, and the Commission's prior orders may also
provide guidance as to how to address particular confidentiality
concerns.\25\ The protective agreement should be self implementing and
not require action or approval by the Commission. That is, persons
wishing to rely on privileged material to support their filings should
make provision for timely and adequate review of these materials under
the protective agreement by intervening parties. While the Commission
will resolve disputes to the extent necessary to carry out its
statutory duties, the Commission intends that these standardized
procedures will minimize the need for Commission action, with the
accompanying delay in processing filings and applications subject to
the Commission's jurisdiction. Where a person wishing to use privileged
materials has reason to anticipate objection or difficulty in such
disclosure and review, it may be appropriate to negotiate in advance
with likely intervenors and attempt to resolve any disputes and come to
agreement prior to making the filing. If acceptable terms for use of
the material in a proceeding are negotiated prior to filing, the
possibility of delay in processing the filing may be avoided.
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\25\ The Model Protective Order developed by the Commission's
Office of Administrative Litigation is available at http://www.ferc.gov/legal/admin-lit/model-protective-order.doc. See also
Market-Based Rates for Wholesale Sales of Electric Energy, Capacity
and Ancillary Services by Public Utilities, Order No. 697, FERC
Stats. & Regs. ] 31,252, at P 393 (2007).
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16. The public version of the filing should be prepared with only
the privileged information redacted to the extent practicable. If a
document or filing contains both public and privileged material, the
Commission expects filers to file a public version in which the
privileged material has been removed or redacted thereby making the
non-privileged portion of a document available for use by the
Commission and participants in the proceeding.\26\
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\26\ Astoria, 136 FERC ] 61,155 at P 25 (requiring the
submission of a public redacted copy of documents that contain both
privileged and public information).
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17. The revised regulations incorporate exceptions for landowner
lists, certain cultural resources and liquefied natural gas facility
(LNG) information, and proceedings set for hearing or settlement
procedures in accordance with the Commission's Rules of Practice and
Procedure.\27\ Thus, filers are not automatically required to provide
intervenors with such material.\28\ The revised regulations retain
procedures to address practical and confidentiality concerns with the
submission of these materials, due to difficulty in copying and
manipulating the material (i.e., maps or spreadsheets presenting
voluminous data). To that end, the revised regulations retain
provisions permitting the Commission to request full size maps in
licensing applications under section 4.32(d) of its rules and
regulations.\29\
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\27\ Under revised section 388.112(b)(2)(v), a participant's
access to privileged material submitted in a trial-type hearing or
for settlement purposes continues to be governed by the presiding
official's protective order, according to policies established by
the Commission's Office of Administrative Law Judges. See Part 385
of the Commission's Rules of Practice and Procedure, Subpart D, 18
CFR 385.401, et seq. (hearing procedures), and 18 CFR 385.602, et
seq.
\28\ See revised section 388.112(b)(2)(vi); see also Columbia
Gas Transmission Corp., 128 FERC ] 61,050, at P 32 (2009) (finding
insufficient need to disclose storage field maps and landowner
lists).
\29\ 18 CFR 4.32(d). Landowner lists, cultural resource
information required in sections 380.12(f) and 380.16(f), LNG
information filed under sections 380.12(m) and (o), forms filed with
the Commission and other documents not covered under proposed
section 388.112 disclosure provisions may be sought pursuant to a
FOIA or CEII request, in accordance with section 388.108 or section
388.113, as applicable.
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18. Conforming changes were made throughout the Commission's
regulations, including revisions to reflect that section 388.112
provides the procedures for filing privileged materials. To simplify
and clarify the regulations, the Commission largely avoided directly
referencing section 388.112. Since section 388.112 is intended to apply
to all submittals and filings containing privileged or CEII material,
it is unnecessary to specify the provision that applies in the many
parts of the regulations that refer to filing of privileged
materials.\30\ Consequently, we adopt the NOPR proposals to remove
duplicate provisions for filing privileged materials and consolidate
and adopt the proposed provisions relating to submittal of and access
to privileged material in section 388.112, as revised and discussed
below.\31\
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\30\ Changes to consolidate and supersede current procedures for
filing privileged material are made to 18 CFR 33.8(a) and 33.9
(merger procedures), 18 CFR 35.37(f) (market based rate
applications), 18 CFR 34.7 (filing requirements for application for
approval of issuance of securities and assumptions of liabilities),
18 CFR 348.2(a) (oil pipeline market power application procedures),
Rule 206, 18 CFR 385.206(e) (complaint procedures), and Rule 213, 18
CFR 385.213(c)(5) (answers). In addition, changes for clarity and to
reflect the consolidation of privileged filing procedures are made
to 18 CFR 4.39(e), 5.29(c), 16.8(g), 157.21(h), 157.34(d)(4), and
385.606(f) and (j), and changes are proposed to 18 CFR 388.113(d)
(1) and (2) to reference procedures in paragraph (d)(4).
\31\ In certain instances, we have kept the reference as a guide
to practitioners in a particular Commission program.
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19. The Commission responds to the comments filed in response to
the NOPR below.
[[Page 65467]]
A. Designation of Confidential Materials as ``Privileged''
20. In the NOPR, the Commission proposed to continue its long-
standing practice of referring to confidential material as privileged.
1. Comments
21. A number of commenters object to the scope of the revised
regulations, arguing that the privileged filing procedures, in
particular the disclosure procedures developed for proceedings with a
right to intervene, should not apply to materials eligible for common
law evidentiary privileges such as attorney-client or work product
privileges or CEII, which are subject to the disclosure procedures in
18 CFR 388.113.
2. Commission Response
22. The Commission disagrees with suggestions made by EEI and INGAA
that use of the term privilege detracts from a filing party's ability
to assert a common law evidentiary privilege. The Commission's power to
withhold information from mandatory public disclosure is established by
FOIA and presented in its rules and regulations, chiefly 18 CFR
388.107. The Commission's long-standing practice has been to refer to
materials subject to an outstanding claim of exemption from mandatory
disclosure as privileged.\32\ The Commission is not aware of any
confusion arising out of use of this term with materials claimed to be
subject to a common law privilege, confidential business trade secrets
or CEII. These types of materials are already addressed in the
Commission's FOIA regulations in the categories of materials for which
a filer may request an exemption from mandatory disclosure under
FOIA.\33\
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\32\ E.g., Revision of Freedom of Information Act Rules, Order
No. 488, FERC Stats & Regs ] 30,789 (1988) (establishing rules for
requesting privileged treatment of documents claimed to be exempt
from mandatory disclosure under FOIA).
\33\ In particular, see 18 CFR 388.107(d) (incorporating FOIA
exemption 4 for trade secrets and commercial or financial
information obtained from a person that are privileged or
confidential); 18 CFR 388.107(g) (records or information compiled
for law enforcement purposes, including information that could
interfere with enforcement proceedings or deprive a person of a
right to fair trial, if produced). See also Cargill, Inc. v.
Saltville Gas Storage Co., L.L.C., 99 FERC ] 61,043, at PP 12-13
(2002) (describing privileged treatment under section 388.107(d) and
FOIA exemption 4); Critical Energy Infrastructure Information, Order
No. 630, FERC Stats. & Regs. ] 31,140, at P 14, order on reh'g,
Order No. 630-A, FERC Stats. & Regs. ] 31,147 (2003) (discussing
privileged treatment for CEII under FOIA exemption 4, and exemption
2 for ``records related solely to the internal personnel rules and
practices of an agency'' and exemption 7 for certain law enforcement
information, including information which might jeopardize a person's
life or safety, if disclosed).
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23. The Commission likewise disagrees with EEI's and INGAA's
suggestions that failure to make separate provision for information
subject to a claim of common law privilege will create a risk of
improper disclosure and loss of privilege.\34\ Indeed, as we stated in
the NOPR, the term privileged material ``is not intended to detract
from any person's right to assert a common law privilege, e.g.,
attorney-client or attorney work product privilege.'' \35\ More
importantly, the Commission is not requiring any filing party to submit
materials that are subject to an evidentiary privilege in support of
their filings or any confidential material. The choice whether to
include such materials is left to the person making the filing whether
to rely on such materials subject to the protective agreement
disclosure provisions established in this Final Rule.\36\ If a party is
asked to produce information in an investigation or discovery request
that it believes is subject to a common law privilege, the proper
course of action is to file a notice of that party's objection to
producing the document, identifying the document and the justification
of the claim, to facilitate review of the claim of privilege in a
confidential setting to determine if the claim is justified.\37\
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\34\ EEI at 5 (citing West Deptford Energy, LLC, 134 FERC ]
61,189 (2011) (seeking to protect sensitive market information);
Mojave Pipeline Corp., 38 FERC ] 61,249, at 61,842 (1987)
(discussing Commission's discovery regulations)). MidAmerican
supports the EEI comments.
\35\ NOPR, FERC Stats. & Regs. ] 32,685 at P 16, item g & n.40
(discussing proposed Sec. 388.112(b)(2)(iv)).
\36\ We note that filing information for which a common law
privilege is asserted is likely to breach the confidentiality
necessary to maintain the privilege. See generally McCormick on
Evidence Sec. 93 (2007).
\37\ See, e.g., Independent Oil & Gas Association of West
Virginia, 21 FERC ] 63,030 (1983) (appointing special administrative
law judge to perform in camera review of privileged status of
discovery materials, to preserve confidentiality).
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B. Establishing Separate Regulations Governing CEII Information
24. In the NOPR, the Commission proposed to retain its current
regulations (sections 285.206, 385.213 and 388.112) under which
privileged and CEII information are subject to the same requirements
with respect to disclosure.
25. EEI contends that CEII should be a separate category subject to
separate disclosure procedures, as provided for in 18 CFR 388.113.
26. We do not find that using the same regulatory framework for
``privileged materials'' and ``CEII'' in section 388.112 will cloud the
procedures in 18 CFR 388.113 for handling CEII or that continuation of
these procedures will not provide adequate protection for CEII. The
Commission's regulations specify that to qualify as CEII, the material
must be ``exempt from mandatory disclosure under the Freedom of
Information Act.'' \38\ Thus, CEII is already a subset of privileged
material under the Commission's regulations. Any party relying on CEII
information in a filing needs to be prepared to provide that
information to intervenors that need the information to understand the
filing.
---------------------------------------------------------------------------
\38\ 18 CFR 388.113(c)(1).
---------------------------------------------------------------------------
27. We also disagree with EEI that CEII should be treated
separately and distributed within a Commission proceeding under
procedures modeled after the current CEII procedures in 18 CFR 388.113,
providing for review of privilege requests with a determination.\39\ A
filing party that has reason to question whether a party has a
legitimate need to review information in a Commission proceeding may
file an objection to disclosure to that person under section
388.112(b)(2)(iii)),\40\ which is equivalent to the existing and
retained provision for notice of FOIA requests in section
388.112(d).\41\
---------------------------------------------------------------------------
\39\ EEI at 4.
\40\ This provision states: ``A filer, or any other person, may
file an objection to disclosure, generally or to a particular person
or persons who have sought intervention.'' Indeed, this provision
provides greater rights to the submitter than section 388.113, which
does not provide for notice to the submitter prior to the
determination by the CEII Coordinator.
\41\ This provision states: ``When a FOIA or CEII requester
seeks a document for which privilege or CEII status has been
claimed, or when the Commission itself is considering release of
such information, the Commission official who will decide whether to
release the information or any other appropriate Commission official
will notify the person who submitted the document and give the
person an opportunity (at least five calendar days) in which to
comment in writing on the request. A copy of this notice will be
sent to the requester.''
---------------------------------------------------------------------------
28. The Commission is not changing its rules for acquiring
materials through a FOIA or CEII request, and materials that may be
sought through the protective agreement procedures established herein
also remain available through FOIA and CEII requests where appropriate.
However, the Commission has determined that reliance on the existing
CEII procedures exclusively would serve to delay the processing of
filings and other pleadings in Commission proceedings. To facilitate
timely distribution of materials without the potential for delay
pending Commission review, participants who choose to submit CEII
information as part of a Commission proceeding must follow the
procedures provided in
[[Page 65468]]
section 388.112. We find this a reasonable method to permit the use of
such materials by the Commission and participants in Commission
proceedings while protecting the confidentiality of the
information.\42\
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\42\ Pennzoil Co. v. FPC, 534 F.2d 627, 632 (5th Cir. 1976)
(requiring consideration of alternatives to full disclosure to
provide consumers with adequate knowledge to participate in
Commission proceedings).
---------------------------------------------------------------------------
C. Form and Use of Protective Agreement
29. The Commission proposed that its existing procedures regarding
protective agreements in its complaint and answer regulations be
applied to other filings. Under these procedures, the filing party must
provide a ``proposed form of protective agreement to each entity that
is to be served.'' \43\ Although the Commission pointed to the Model
Protective Order developed by the Commission's Office of Administrative
Litigation as a guide in developing protective agreements, it did not
propose to require a uniform protective agreement.
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\43\ 18 CFR 385.206(e)(2), 385.213(c)(5)(i)(ii).
---------------------------------------------------------------------------
1. Comments
30. Several commenters ask the Commission to establish one or more
standard protective agreements, based on the Model Protective Order or
tailored to meet particular circumstances.\44\ APGA predicts that,
absent such a requirement, filers may attempt to frustrate the
interests of requesting parties, who have limited time to respond. ITC
supports the Commission's proposal that the proposed protective
agreement be self implementing and not require action by the
Commission. ITC nevertheless supports use of the Model Protective
Order, except when modifications are justified or no party objects.
TDUs note that the NOPR does not provide guidance on what provisions
may be appropriate for a protective agreement, and notes that
clarification will help ensure customer access to information and avoid
disputes.\45\ TDUs advocate adoption of the Model Protective Order as a
basis for a protective agreement, with a requirement that parties
justify any change.
---------------------------------------------------------------------------
\44\ E.g., APGA, EEI, ITC. APGA provides draft text to implement
its proposals.
\45\ TDUs at 3.
---------------------------------------------------------------------------
31. MidAmerican suggests refinements to the requirement that a
proposed form of protective agreement be served on each entity that is
required to be served with the filing, arguing that service need not be
required after the first time the protective agreement is used.\46\ In
particular, MidAmerican argues that such a requirement is not needed
when a party is using information that it obtained using the protective
agreement provided by the original filer.
---------------------------------------------------------------------------
\46\ MidAmerican at 4.
---------------------------------------------------------------------------
32. APGA urges the Commission to require that a party may execute a
non-conforming agreement under protest, with issues to be resolved at a
later date by the Commission.\47\ TDUs likewise argue that parties
should have access to materials while any objection is outstanding.
TDUs ask the Commission to ensure access to materials during
negotiations over terms of delivery, so that a party challenging a
protective agreement may still participate effectively in the
proceeding. TDUs state that such an approach will permit a party to
participate meaningfully in the relevant docket without sacrificing the
opportunity to test a filing party's privilege claims.\48\
---------------------------------------------------------------------------
\47\ APGA at 3.
\48\ TDUs at 5.
---------------------------------------------------------------------------
33. APGA urges the Commission to lessen the requirements for
signing the protective agreement and receiving the privileged materials
and permit any person to whom service is required under the regulations
to seek access, rather than require filing of an intervention.\49\
According to APGA, requiring a person to draft and file an intervention
wastes time and should not be a condition to receiving the material.
APGA argues that the fact that a person is required to be served
justifies access to the material. EEI, on the other hand, asks that the
Commission not require release of privileged material to persons or
organizations that have not been granted intervenor status.\50\ EEI
seeks to avoid conflict with the Commission's regulations that permit a
party 15 days to oppose a motion to intervene. EEI asks the Commission
to clarify that intervention in one sub-docket would not provide the
right to access material in another sub-docket.\51\
---------------------------------------------------------------------------
\49\ APGA at 3-4.
\50\ EEI at 8.
\51\ EEI at 8.
---------------------------------------------------------------------------
34. APGA argues that the Commission's proposal requiring delivery
of privileged materials within five days after a protective agreement
is signed is insufficient to ensure that interested persons have timely
access to privileged materials filed in pipeline filings due to the
short (30-day) statutory action period.\52\ APGA does not believe that
its suggestions prejudice the rights of filers to protect privileged
material, but are intended to facilitate meaningful access by
interested entities.\53\
---------------------------------------------------------------------------
\52\ APGA at 2 (citing NGA section 4, 15 U.S.C. Sec. Sec.
717c(d) and (e)).
\53\ APGA at 5.
---------------------------------------------------------------------------
35. Citing procedures developed in applying the Model Protective
Order, TDUs ask the Commission to clarify that the burden of proof is
on the party asserting a claim of privilege in any dispute of
privileged status. TDUs also question whether the provision permitting
a party to object to the terms in a protective agreement is effective,
given statutory deadlines. TDUs ask the Commission to specify limits on
the terms that may be included in a protective agreement, so that
parties will not be forced to agree to unduly restrictive access or
engage in fruitless litigation. TDUs argue that this is needed because,
unlike in a proceeding overseen by an administrative law judge, the
Commission cannot delay a statutory deadline to provide time to resolve
a dispute.\54\
---------------------------------------------------------------------------
\54\ TDUs at 4.
---------------------------------------------------------------------------
2. Commission Response
a. Standard Protective Agreement
36. The Commission declines to adopt a standard protective
agreement or provide detailed guidance as to appropriate departures or
additions to the Model Protective Order in this proceeding, in light of
the need for flexibility in handling different types of privileged
material. In the NOPR, the Commission suggested that parties filing
privileged materials in a proceeding with a right to intervene may use
the Office of Administrative Litigation's Model Protective Order as a
guide for protective agreements.\55\ Parties choosing to use a
protective agreement based on the Model Protective Order may avoid
potential litigation over the terms of the agreement that may delay the
processing of their filing. For example, disputes that cannot be
resolved prior to filing or through the protective agreement procedures
may lead to further procedures such as suspending a filing, setting the
proceeding for hearing, deficiency letters, and requests for additional
procedures or information.
---------------------------------------------------------------------------
\55\ Available at http://www.ferc.gov/legal/admin-lit/model-protective-order.doc.
---------------------------------------------------------------------------
37. In the event a protective agreement is protested, the
Commission has reviewed proposed protective orders in other contexts
and provided for appropriate additions to address particular
confidentiality concerns.\56\ Parties wishing to file privileged
material may consult the Commission's
[[Page 65469]]
prior orders for approaches that have been employed to address
particular concerns that arose in prior proceedings.
---------------------------------------------------------------------------
\56\ E.g., Illinois v. Exelon Generation Co., LLC, 119 FERC ]
61,027 (2007) (proposing protective order restricting access to
certain materials by competitive duty personnel).
---------------------------------------------------------------------------
b. Right To Object to Protective Agreement and Privileged Treatment
38. APGA expresses concern that a participant may be bound by
undesirable terms of a protective agreement, prior to having the
opportunity to object. We do not find that signing a protective
agreement should result in a waiver of the right to challenge the
privileged status of the information. This procedure ensures solely
that the case can be processed, not that it result in a waiver of any
procedural rights. We note that the Model Protective Order contains
procedures under which the signatory reserves its right to challenge
the privileged status of documents covered by the agreement, and we
encourage parties to include such provisions in their protective
agreements. Should a protective agreement purport to contain such a
waiver requriement, a party may preserve its rights by filing an
objection under section 388.112(b)(2)(iii) and the Commission can then
require the protective agreement be revised.
39. TDU's are concerned that the right to object to a protective
agreement may not be effective given statutory deadlines. As indicated
above, the Commission has procedures that may be used to resolve such
disputes fairly.
c. Requirement To File an Intervention
40. We decline to adopt the revision proposed by APGA that a filing
party must provide privileged materials to any person to whom service
is required on request, rather than only those who have filed an
intervention. As Mid-American suggests, the regulations provide that
parties who are entitled to receive service will receive a copy of the
filing with the protective order when served.\57\ It is not too great a
burden to require such parties to intervene prior to being given a copy
of the privileged information. Filing an intervention is not a great
burden. Indeed, the Commission has provided for an electronic document-
less form of intervention that can be filled out very quickly. The
requirement for intervention ensures that copies of the confidential
material are provided only to those with sufficient interest in the
proceeding and provides the Commission with information about a party's
interest in the privileged materials in the event an objection to
disclosure is filed.
---------------------------------------------------------------------------
\57\ Section 388.112(b)(2)(ii) (``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'').
---------------------------------------------------------------------------
41. We likewise reject EEI's suggestion that materials should not
be provided until an intervention has been granted. We do not believe
that lack of intervenor status alone provides justification for
refusing to provide the privileged materials.\58\ Furthermore, waiting
for intervention to be granted could unnecessarily delay an interested
person's access to privileged materials. As APGA notes, this could be a
particular burden in Natural Gas Act cases which must be decided within
30 days. The intervention itself will provide the party filing
privileged materials with information to determine whether a requesting
party has an interest to support disclosure in the event that an
objection to disclosure is filed under section 388.112(d)(iii).
---------------------------------------------------------------------------
\58\ Under Rule 214, an intervenor obtains party status fifteen
days after a timely intervention is filed, if no opposition is
filed. 18 CFR 385.203.
---------------------------------------------------------------------------
d. Other Issues
42. In response to EEI's inquiry whether a protective agreement may
apply in separate subdockets, the filer should determine whether a
protective agreement signed in one subdocket is sufficient for the
information that may be produced in another subdocket. The different
character of such information may require a somewhat different form of
protective agreement.
43. TDU argues that the burden of proof should be on the party
seeking privileged status. This rulemaking does not change existing
procedures regarding assignment of burdens. While the determination as
to the applicability of the privileged designation is not a hearing
with formal burdens of proof, the applicant needs to justify why the
information is confidential under the FOIA categories.\59\
---------------------------------------------------------------------------
\59\ 18 CFR 388.112(d) (providing an applicant for privilege
treatment the ability to respond to a requested disclosure).
---------------------------------------------------------------------------
D. Consistency With Discovery Procedures Used in Administrative
Proceedings
44. In the NOPR, the Commission proposed that, for filings made
prior to hearing, the party filing the privileged material will propose
a form of protective agreement. However, in proceedings set for trial-
type hearing, the NOPR proposed to leave intact the authority of the
ALJ to administer the hearing and determine the appropriate scope of a
protective order.
1. Comments
45. TDUs suggest that the Commission is inconsistent in removing
the designation ``Protected Materials'' covered by an ALJ-approved
protective order and treating these materials as privileged. It asserts
that an ALJ's protective order may cover a broader range of materials
than filings in proceedings not set for hearing. TDUs explain that, in
discovery, the term protected materials refers to materials that
customarily are treated by a participant as sensitive or proprietary,
which are not available to the public and which, if disclosed freely,
would subject the participant to competitive harm.\60\ TDUs ask the
Commission to clarify that eliminating the category ``protected
materials'' is for filing purposes and does not expand the definition
of privileged materials pursuant to section 388.112.\61\ EPSA states
that establishing separate procedures for materials provided pursuant
to a protective order issued by an ALJ may lead to confusion and
inadvertent disclosure.
---------------------------------------------------------------------------
\60\ TDUs at 8 & n.5.
\61\ TDUs at 9.
---------------------------------------------------------------------------
2. Commission Response
46. Revised section 388.112(b)(2)(v), adopted in this proceeding,
states, ``For material filed in proceedings set for trial-type hearing
or settlement judge proceedings, a participant's access to material for
which privileged treatment is claimed is governed by the presiding
official's protective order.'' The term protected material is a
colloquial term that some parties apply to materials covered by a
protective order. For consistency, the Commission has used the word
``privileged,'' as it existed in the regulations prior to this rule, to
refer to all material for which confidential treatment is claimed. But
the use of the term privileged does not change the scope of material
eligible for confidential treatment.
47. TDUs assert that the discovery materials that may be protected
by an administrative law judge's protective order include materials
that customarily are treated by a participant as sensitive or
proprietary, which are not available to the public and which, if
disclosed freely, would subject the participant to competitive harm.
This description is comparable to the type of information that
qualifies for confidential treatment under FOIA Exemption No. 4, which
protects information where disclosure is likely ``to cause substantial
harm to the competitive position of the person from whom the
information was obtained.'' \62\
[[Page 65470]]
We therefore find no reason to apply a different standard to materials
collected during discovery than filed materials in proceedings not in
hearing.\63\
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\62\ See Reporting of Natural Gas Sales to the California
Market, 96 FERC ] 61,119 at 61,466-68 (2001) (citing National Parks
and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir.
1974)). FOIA Exemption No. 4 is incorporated in the Commission's
regulations in section 388.107(d).
\63\ Indeed, it would be inconsistent for the Commission to use
a different standard for defining material submitted in an
application compared with material submitted through an ALJ
proceeding. The same FOIA provisions apply to both sets of
information and an FOIA request can be filed for material submitted
during discovery in an administrative proceeding.
---------------------------------------------------------------------------
E. Procedures for Distributing Privileged Information
48. The NOPR proposed procedures obtaining access to material that
is filed as privileged in complaint proceedings and in any proceeding
with a right to intervene. The Commission proposed that any participant
or person filing an intervention in the proceeding may request the
filer to provide a copy of the complete, non-public version of the
document, by providing an executed copy of the protective agreement and
showing appropriate party, participant or intervenor status. The
proposed regulations provide that the filer provide a copy of the
complete, non-public document to the requesting person within five days
of receiving the request, if no objection is filed.
1. Comments
49. To provide adequate due process for responses to requests for
information, EEI asks the Commission to modify the requirement that
confidential information be released ``within'' five days, to a
requirement that the information not be released until the 5th business
day, in order to permit parties to object, and suggests the Commission
provide a bit more time for objections to be lodged.\64\ EEI notes that
in the NOPR the Commission proposed to revise 18 CFR 388.112 to give
parties that have submitted privileged material to FERC staff at least
five calendar days to respond to requests for information and a
separate five calendar days to respond to a proposed disclosure. See 18
CFR 388.112(c)(2). EEI notes that the Commission has not afforded the
same protection for information filed under section 388.112(b)(2) and
states that the Commission should apply the same protective procedures
to all privileged materials submitted to staff or to the
Commission.\65\ To provide adequate due process rights for responses to
requests for information, EEI states that the Commission should
withhold a proposed release of confidential information if the filing
party files notice of intent to seek judicial review to block the
release.\66\
---------------------------------------------------------------------------
\64\ EEI at 9.
\65\ Id.
\66\ EEI at 10.
---------------------------------------------------------------------------
50. TDUs object to the five day delay in delivering privileged
materials after receipt of an executed copy of the non-disclosure
agreement; instead they request delivery by the next business day. TDUs
argue that delay prejudices the party seeking the information, by
providing limited time for review.\67\ APGA similarly recommends that
the proposed 5-day period for delivering privileged materials be
shortened to 24 hours. APGA states that it only takes minutes to
deliver the non-redacted version which was filed with the Commission
and there is no basis for delay, given the short time frame to review
and address the privileged material in a pleading.\68\ APGA states
that, because the contents of suspension orders may depend on the
contents of protests, that it is not sufficient for protesting parties
to receive the material at or after the intervention deadline. APGA
suggests a typical protest schedule in which a section 4 rate case is
noticed after five days, interventions are due within 13 days and an
order issued in 30, and asserts that there is no way to secure and
review the filing, draft an intervention, execute the protective
agreement and prepare a protest based on the privileged material.\69\
---------------------------------------------------------------------------
\67\ TDUs at 5.
\68\ APGA at 4.
\69\ Id. at 4-5.
---------------------------------------------------------------------------
51. INGAA objects to its reading of the proposed regulations to
require service of ``fully redacted'' documents. According to INGAA,
redacting an entire document can be burdensome to the filer and
circulation of the document does not provide any benefit to
recipients.\70\ INGAA asks that filers be permitted to comply with the
requirement in proposed section 388.112(b)(1) by submitting in its
cover page requesting privileged treatment, a statement that the entire
document qualifies for privileged, confidential and/or CEII treatment
and a short title or description of the type of information it
contains. INGAA asks that such a disclosure meet the Commission's
objective under 388.112(b)(1) to provide a redacted version ``to the
extent practicable.'' \71\
---------------------------------------------------------------------------
\70\ INGAA at 5.
\71\ Id. at 6.
---------------------------------------------------------------------------
52. EEI responds to the Commission's observation in the NOPR that a
failure by the filing party to afford intervenors a meaningful
opportunity to review confidential information under a protective
agreement could lead to suspension of the filing, rejection, or other
delays in processing an application. EEI acknowledges some delay may be
necessary to respond to requests for confidential information, but
states that such delay should not be punitive and a filer should not be
prejudiced through rejection or suspension, as long as the confidential
information designation and ensuing objection to release of the
information are made in good faith.\72\
---------------------------------------------------------------------------
\72\ EEI at 10.
---------------------------------------------------------------------------
53. According to EEI, parties seeking to justify non-disclosure of
privileged materials should only be required to submit a brief, good-
faith articulation of the reason for non-disclosure, but that in the
event the designation is challenged or anyone seeks access to the
information, the filing party will have the right to expand and
supplement the justification prior to Commission action.\73\
---------------------------------------------------------------------------
\73\ EEI at 8.
---------------------------------------------------------------------------
54. ITC suggests that, in the event that a delay in disclosure is
caused by a dispute over the protective agreement, a party would not be
harmed if the dispute were to result in a late filing, such as an
answer to a complaint.\74\
---------------------------------------------------------------------------
\74\ ITC at 3.
---------------------------------------------------------------------------
2. Commission Response
a. Five Day Distribution
55. Various parties filed comments expressing concerns with the
distribution procedures. Several parties raise issues with respect to
the requirement to distribute privileged information within five days.
EEI wants to mandate that the information not be released in less than
five days, while TDU and APGA argue that the five day requirement
should be shortened. We find that the five day requirement establishes
a reasonable balance between all the interests.
56. With respect to EEI's suggestion that the five days be made
mandatory to permit parties to object to disclosure, we see no reason
to adopt this rule for all filings. As other commenters note, early
release of information is preferable because it provides other parties
with more time to evaluate the filing. To the extent that EEI's concern
is that the filing party is claiming confidentiality for third-party
information in its possession, the filing party ought to inform the
third-party before filing, should consult with the third-party as to
the appropriate form of protective agreement for the information, and
may want to choose the full five days to permit a response.
57. We similarly reject the TDU and APGA arguments that the
information
[[Page 65471]]
be disclosed in less than five days through electronic delivery. While
immediate electronic service may be appropriate for certain materials,
a filer may have a legitimate interest in not providing such material
electronically. Even in natural gas cases, five days from the date of
the request should provide sufficient opportunity to obtain and review
such information.\75\ In those cases in which a party shows that given
the extensive nature of the privileged information, it did not have
adequate time to review the material, the Commission has procedures to
ensure an adequate review period.
---------------------------------------------------------------------------
\75\ As APGA has noted, many of these parties will be served by
the pipeline and therefore will have immediate notice that
confidential information is included. Moreover, the Commission
issues notices of these filings very shortly after they are filed.
---------------------------------------------------------------------------
b. Redaction of Entire Document
58. INGAA requests that the Commission clarify that the requirement
for filing a redacted public copy still permits, in appropriate
circumstances, the filing party in the transmittal letter to provide a
description of the document and identify the entire document as
privileged. The regulation requires that a redacted public version be
filed, to the extent practicable. The regulation, therefore, would not
preclude a filer from identifying the entire document as privileged if
it, in good faith, is unable to separate sensitive or confidential
material from the remainder of the document.
c. Opportunity to Respond
59. The Commission declines to adopt EEI's suggestion that filing
parties be provided with an opportunity to respond to requests for
information by arguing their justification for withholding material.
Under the Commission's current regulations a filing party must include
in its filing a justification for privileged treatment, demonstrating
that the material is exempt from mandatory disclosure under FOIA
according to the categories defined in section 388.107 of the
Commission's Rules and Regulations. The procedures promulgated in this
proceeding continue that practice. If a filing party objects to
disclosure to a particular party, it may file an objection under
section 388.112(b)(2)(iii) as appropriate. Furthermore, a non-filing
party may object to the privileged status of the materials under
review. The Commission may address each of these objections by issuing
an order, by which time the parties should have had time to assert
their interests in their pleadings. However, we emphasize that failure
to resolve such disputes may result in delay in processing the filing.
d. Need for Additional Procedures
60. EEI is concerned that delaying approval of filings due to the
submission of privileged information may be ``punitive.'' The
Commission needs to provide due process to allow for adequate review of
all filings and that includes filings containing privileged
information. If parties can demonstrate that they have not had
sufficient time to review a filing, the Commission may adopt whatever
procedures it deems appropriate to ensure due process to all parties.
Indeed, the Commission is adopting this rule to clarify procedures for
handling privileged material to expedite proceedings. As noted in the
NOPR, the Commission previously has preceded on an ad hoc basis when
addressing filings (other than complaints and answers) containing
privileged information which has contributed to delay in the
Commission's ability to process such filings expeditiously. To permit
parties to participate fully in these proceedings, the Commission has
issued special orders or notices to ensure access to privileged
material.\76\ By clarifying the filing procedures for privileged
information, this rule will reduce the need to use additional processes
and therefore should expedite, not delay, proceedings.
---------------------------------------------------------------------------
\76\ See West Deptford Energy, LLC, 134 FERC ] 61,189 (2011)
(denying request to limit parties' rights to see documents). See
also PPL Montana, LLC, 113 FERC ] 61,231 (2005); PJM
Interconnection, L.L.C., Notice of Filing, Docket No. ER05-10-000
(May 6, 2005); PJM Interconnection, L.L.C., Notice of Filing, Docket
No. ER04-539-002 (Apr. 30, 2004).
---------------------------------------------------------------------------
F. NERC Notices of Penalty and Other Communications
1. Comments
61. NERC asks the Commission to clarify that the procedures
proposed in the NOPR will not apply to NERC's filing of a notice of
penalty, to filings of remediated issues in a Find, Fix, Track and
Report spreadsheet, or to other communications or exchanges of
documents between NERC and FERC that are not made through formal
filings.\77\
---------------------------------------------------------------------------
\77\ NERC at 3 (discussing FPA section 215(e); 18 CFR
39.7(c)(2)).
---------------------------------------------------------------------------
62. According to NERC, it submits notices of penalty and Find, Fix,
Track reports on a monthly basis, and points out that it treats such
materials as non-public under 18 CFR 39.7(b)(4). NERC's practice is to
file some portion of the notices and reports as non-public, absent a
public hearing sought by the Commission or a penalized entity under
section 39.7(e)(1 and 7). NERC requests that the Commission clarify
that NERC is not required to submit a protective agreement with Notice
of Penalty or Find, Fix, Track filings or other communications or
documents that are not exchanged through formal filings. According to
NERC, the Commission's decision to review a Notice of Penalty may
include instructions for NERC to submit a protective agreement.
63. NERC also asks the Commission to clarify that NERC's regular
nonpublic exchanges of information exchanged through means other than
formal filings do not require a protective agreement.\78\
---------------------------------------------------------------------------
\78\ Id.
---------------------------------------------------------------------------
2. Commission Response
64. We agree that NERC need not submit a protective agreement when
filing its notices of penalties. The protective agreement procedures
apply in the case of regulations that apply to ``any proceeding to
which a right to intervention exists.'' With respect to NERC's filing
of notices of penalty, no right to intervene exists unless the
Commission issues an order initiating review of the filing and provides
for public intervention and comment.\79\ If the Commission establishes
such a proceeding, it will establish whatever procedures with respect
to the materials are necessary.
---------------------------------------------------------------------------
\79\ 18 CFR Sec. 39.7(e)(1); see also North American Electric
Reliability Corp., Order Initiating Review of Notice of Penalty, 136
FERC ] 61,135 (2011); Rules Concerning Certification of the Electric
Reliability Organization, Order No. 672, FERC Stats. & Regs. ]
31,204, at PP 510-11 (2006) (noting that Commission conducts initial
review of NERC Notice of Penalty as nonpublic pursuant to its FPA
Part 1b investigatory authority, until an on the record hearing is
provided for).
---------------------------------------------------------------------------
65. As for NERC's remaining concern with respect to materials
distributed in informal settings, NERC states that the communications
that it refers to are not made through formal filings. Consequently, we
confirm that the protective agreement requirement does not apply. This
rulemaking does not revise the applicable FOIA procedures and the
Commission will continue to abide by those procedures.
G. Electronic Filing Procedures
66. EEI proposes various revisions to the Commission's electronic
filing procedures, such as the types of media that may be used,
extension of electronic filing procedures to certain Commission forms
under 18 CFR 385.2011. In addition, EEI supports the Commission broadly
preserving the option to file on paper for parties that need such an
option and encourages the
[[Page 65472]]
Commission to minimize requirements that limit flexibility.
67. Revising the Commission's electronic filing procedures and
treatment of Forms is beyond the scope of this proceeding, and the
Commission is not prepared to implement such changes in this
proceeding. Filings may still be made on paper except in those
circumstances (tariffs, forms, etc) where the Commission requires
electronic filing.
H. Prospective Effect
68. EEI asks the Commission to clarify that the new regulations
apply prospectively only as to new dockets or sub-dockets and that
parties that have already made filings should not be compelled to
provide a protective agreement after-the-fact.\80\
---------------------------------------------------------------------------
\80\ EEI at 7-8.
---------------------------------------------------------------------------
69. We agree that these regulations will apply only to filings made
after their implementation. With respect to filings made previously,
the procedures adopted in those proceedings will need to be followed.
I. Changes to Text of Proposed Regulations
70. The Commission has made three changes to the text of the
revised regulations in response to commenters' suggestions for changes
in the regulatory text, as discussed below. The remaining suggestions
are also discussed in turn below.
1. Changes Adopted
71. MidAmerican proposes the following underlined clarifications to
reflect that a single protective agreement may apply to all materials
filed in a proceeding: ``The filer must provide the public version of
the document and its proposed form of protective agreement, if an
applicable protective agreement does not currently exist, to each
entity that is required to be served with the filing. If an applicable
protective agreement currently exists, the filer must identify where
the protective agreement can be obtained.''
72. The Commission agrees, based on the provisions in the Model
Protective Order, that one protective agreement may be drafted to apply
to all materials in a proceeding. Consequently, we have revised the
final regulations to accommodate such use.
73. EEI asks the Commission to modify 18 CFR 34.7, which it claims
requires paper filings of privileged information submitted in
applications for authorization to issue securities and assumptions of
liability under FPA section 204. EEI asks the Commission to cross
reference 18 CFR 388.112.
74. Section 34.7 states that applications for authorization to
issue securities and assumptions of liability under section 204 should
be filed in accordance with the filing procedures posted on the
Commission's web site, in reflection of the Commission's moving such
instructions out of its regulations and placing them on the internet.
Consistent with other regulations, we add a sentence to section 34.7 to
reflect that privileged materials may be filed electronically.
75. EEI proposes that the Commission consult with the Counsel on
Environmental Quality as to its proposal to remove the requirement in
sections 380.12 and 380.16 that ``The cover and relevant pages or
portions of the report should be clearly labeled in bold lettering:
`CONTAINS PRIVILEGED INFORMATION--DO NOT RELEASE.' '' \81\ According to
EEI, the Commission must consult with the Counsel on Environmental
Quality before changing National Environmental Policy Act regulations,
including 18 CFR Part 380.\82\
---------------------------------------------------------------------------
\81\ EEI at 10. In the NOPR, the Commission proposed to replace
this with the general requirement in 388.112 that ``The cover page
and relevant pages or portions of the filing document containing
material for which privileged treatment is claimed should be clearly
labeled in bold, capital lettering, indicating that it contains
privileged, confidential and/or CEII, as appropriate, and marked `DO
NOT RELEASE.' ''
\82\ EEI at 10 (citing Counsel on Environmental Quality
regulations at 40 CFR 1507.3(a)).
---------------------------------------------------------------------------
76. The NOPR proposed to adopt generic instructions in section
388.112 to permit a party to customize their headings to reflect the
privilege being claimed and identify the material in question. Thus,
the instruction may apply to either confidential trade secrets or CEII.
As for EEI's concern, while we see no inconsistency with the revised
instruction and the requirements in Part 380, we will not revise the
labeling instructions in the current versions of sections 380.12(f)(4)
and 380.16(f)(4), in order not to run afoul of the environmental
regulation review requirements.
2. Proposed Changes Not Accepted
77. MidAmerican cites inconsistency in section 388.112, which
refers to ``procedures for filing and obtaining privileged and CEII
material'' rather than ``privileged material.'' \83\ Since CEII is a
sub-set of privileged materials, we see no confusion as the procedures
we establish here apply to both, and we will not make the requested
change.\84\
---------------------------------------------------------------------------
\83\ MidAmerican at 3.
\84\ Nevertheless, clarifying changes were made throughout the
regulations.
---------------------------------------------------------------------------
78. Mid-American objects to what is sees as inconsistent usage,
noting the lack of a reference to ``Privileged Materials'' in section
388.112(b) and the requirements instead to label a filed document,
``indicating that it contains privileged, confidential and/or Critical
Energy Infrastructure Information, as appropriate, and marked `DO NOT
RELEASE.' '' \85\ According to Mid-American use of the term
confidential and describing material as privileged make the section
hard to follow. The Commission disagrees, but clarifies that the
provision was drafted to permit the use and filing of several
categories of privileged material and permit filing parties to
customize the notification that a filing contains privileged material
to fit their circumstances.
---------------------------------------------------------------------------
\85\ MidAmerican at 3.
---------------------------------------------------------------------------
79. TDUs state that the Commission should include a cross-reference
to Rule 410, 18 CFR 385.410, and section 388.112 in Rules 206 and 213
to avoid ambiguity, 18 CFR 385.206 and 18 CFR 385.213. According to
TDUs, a cross-reference would clarify that the treatment of information
for which a claim of confidentiality or privilege is asserted will be
governed by Rule 410 and section 388.112. In addition TDUs support
retaining the reference to Rule 410 and section 388.112 in Rule 606, 18
CFR Sec. 385.606, governing the treatment of privileged and protected
information in settlement proceedings.\86\
---------------------------------------------------------------------------
\86\ TDUs at 9.
---------------------------------------------------------------------------
80. The Commission's intention is to consolidate its regulations
for filing privileged materials in section 388.112. Consequently, we
found it unnecessary to reference section 388.112 as the regulation
describing how one should file privileged materials, because section
388.112 is the only regulation defining how such materials should be
handled.
III. Revised Time for Filing Answers to Motions for Extensions of Time
or Expedited Action Dates
81. To facilitate the Commission's ability to respond to motions
requesting extensions of time or shortened time to take actions
required under the Commission's orders or regulation, the Commission
proposed to revise Rule 213 in its Rules of Practice and Procedure to
provide that answers to motions requesting an extension of time as well
as motions seeking to expedite a deadline, that is, shorten the period
of time in which action is to occur, will be
[[Page 65473]]
due in five days.\87\ The Commission explained that frequently, parties
filing such motions do not know 15 days before a filing is due that
they require a change in compliance time periods, and these motions are
not controversial or complicated. The Commission stated that, with a
15-day comment period, the Secretary of the Commission (under delegated
authority) has had to issue notices shortening comment periods on such
motions. Since motions regarding the time period for responding are not
controversial or complex, five days appeared to provide a reasonable
time for responses that will eliminate the burden and additional delay
created by the need for the Secretary to issue a notice shortening the
comment period.
---------------------------------------------------------------------------
\87\ See revised Rule 213, 18 CFR 385.213.
---------------------------------------------------------------------------
82. In addition, the NOPR proposed a related change to the
Secretary's delegation authority under 18 CFR 375.302(b) to clarify
that the Secretary of the Commission has authority to address requests
for shortened answer periods and expedite requests to extend or shorten
the times to take actions consistent with the delegated authority of
other office directors.\88\ Exercise of such authority will help
expedite requests for extension of time.
---------------------------------------------------------------------------
\88\ See 18 CFR 375.307(b)(1)(ii).
---------------------------------------------------------------------------
1. Comments
83. INGAA, APGA, PJM, and ITC generally support the Commission's
proposal to reduce the time for responding to requests for extensions
of time. APGA finds the five day answer period appropriate in most
cases.\89\ PJM suggests lengthening the time for response to five
business days. While supporting the five days, ITC suggests that for
circumstances where action may be needed in a shorter time period, the
filing party be permitted to request a shorter time period in its
filing.
---------------------------------------------------------------------------
\89\ MidAmerican notes that the summary of section 385.213(d)
set forth in P 4 of the NOPR states that the revised regulations
apply to all motions requesting an extension of time, not just to
those ``for which the existing time for compliance may fall fifteen
days or fewer from the date of filing.''
---------------------------------------------------------------------------
84. INGAA objects to the removal of the provision in the
secretary's delegated authority in 18 CFR 375.302(b) stating, ``Absent
a waiver, no answers [to complaints, petitions, motions and other
documents] will be required to be filed by a party within less than ten
days after the date of service of the document.'' INGAA notes that
removal of this provision could permit the Secretary to shorten any
answer period, including the time for responding to a complaint, to any
time period. INGAA describes this as a wholesale change, which it
states the Commission has failed to justify.\90\ INGAA asks the
Commission to maintain the minimum ten-day answer period for
complaints, petitions, motions and other documents that do not request
an extension of time.
---------------------------------------------------------------------------
\90\ INGAA at 3.
---------------------------------------------------------------------------
2. Commission Response
85. The Commission will adopt the revised regulation to provide for
shortened answer periods to the motions for extensions of time or
requesting expedited action and to clarify the Secretary's authority to
act on such motions. We find that the five day answer period strikes an
appropriate balance for the need to expedite action on such requests
while preserving interested parties ability to respond to such
requests. Since motions regarding time periods are not controversial or
complex, five days provides a reasonable time for answers.\91\ The
five-day notice period also will help reduce the burden and delay
caused by the Secretary of the Commission (under delegated authority)
having to issue notices shortening answer periods.
---------------------------------------------------------------------------
\91\ In most cases, such filings are not opposed.
---------------------------------------------------------------------------
86. ITC requests that the Commission affirm that parties may
request a shortened answer period. While such a filing is permitted,
the purpose of the revised regulation is to eliminate the need to issue
notices shortening answer periods. Also, given the time it takes to
issue such a notice, it will be difficult, in any but extreme cases,
for the Secretary to issue a notice shortening an answer period in time
to provide parties the ability to respond. Participants contemplating
making filings to change time periods should be able to anticipate the
need for such a filing five days in advance.
87. As for INGAA's concern with the Commission's revision of the
Secretary's delegated authority, we affirm our decision. As noted in
the NOPR, the change to the Secretary's delegated authority will
clarify that the Secretary has authority to respond to motions in a
shortened time frame when necessary to respond to a request for
extension of time or expedited action period. While INGAA is correct
that the change would also permit the Secretary to shorten the time for
filing answers in other contexts, we anticipate that the Secretary
would shorten the time for action only when justified and will do so in
such a way as not to prejudice any party.
IV. Information Collection Statement
88. Office of Management and Budget (OMB) regulations require OMB
to approve certain information collection requirements imposed by
agency rule.\92\ This rule does not contain any information collection
requirements and compliance with the OMB regulations is thus not
required. The Commission anticipates this rulemaking will reduce the
burden of making filings because it will allow filers who previously
filed on paper to take advantage of the efficiencies and ease
associated with electronic submission in the standardized procedures.
In addition, this Final Rule does not make any substantive or material
changes to requirements specified in the NOPR, where the Commission
similarly found no information collection requirements.
---------------------------------------------------------------------------
\92\ 5 CFR 1320.12.
---------------------------------------------------------------------------
89. EEI suggests that the requirement to submit a protective
agreement along with the filing of privileged materials embodies a new
burden in the Commission's Paperwork Reduction Act analysis.\93\ The
Commission disagrees. The Commission is not requiring any party to file
and rely on privileged material in proceedings before the Commission.
Furthermore, the requirement to use a protective agreement to
facilitate meaningful review of the material by interested parties has
long been a part of our regulations pertaining to the filing of
complaints and answers. Additionally, those regulations have served as
a model in practice for parties filing privileged materials in other
proceedings. Thus, the requirement to provide and to use a protective
agreement represents a codification of the Commission's existing
practice under which a party seeking to rely on privileged materials
must provide interested persons the opportunity for meaningful review
of privileged materials in Commission proceedings, which typically
occurs through the use of a protective agreement. Therefore, we find
that codifying the requirement to deliver a protective agreement does
not represent a new burden, but simply reflects the Commission's
existing practice of applying the procedures developed in the complaint
regulations on a case-by-case basis for all filings in which a right of
intervention exists. Furthermore, by facilitating filing and service of
the protective agreement by electronic means, the revised regulations
minimize any impact and reduce the burden of using privileged materials
in Commission proceedings.
---------------------------------------------------------------------------
\93\ EEI at 8. Paperwork Reduction Act of 1995, section 3507(d),
44 U.S.C. 3507(d).
---------------------------------------------------------------------------
90. The Commission will submit a copy of this Final Rule to OMB
only for informational purposes.
[[Page 65474]]
V. Environmental Analysis
91. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\94\ This
rule would not represent a major federal action having a significant
adverse effect on the quality of the human environment under the
Commission's regulations implementing the National Environmental Policy
Act. Part 380 of the Commission's regulations lists exemptions to the
requirement to draft an Environmental Analysis or Environmental Impact
Statement. Included is an exemption for procedural, ministerial or
internal administrative actions.\95\ This rulemaking is exempt under
that provision.
---------------------------------------------------------------------------
\94\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats.
& Regs. ] 30,783 (1987).
\95\ 18 CFR 380.4(1) and (5).
---------------------------------------------------------------------------
VI. Regulatory Flexibility Act
92. The Regulatory Flexibility Act of 1980 (RFA) \96\ generally
requires a description and analysis of proposed rules that will have
significant economic impact on a substantial number of small entities.
The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a rulemaking while minimizing any
significant economic impact on a substantial number of small entities.
The Small Business Administration's (SBA) Office of Size Standards
develops the numerical definition of a small business.\97\ The SBA has
established a size standard for electrical utilities, stating that a
firm is small if, including its affiliates, it is primarily engaged in
the transmission, generation, and/or distribution of electric energy
for sale and its total electric output for the preceding twelve months
did not exceed four million MWh.\98\
---------------------------------------------------------------------------
\96\ 5 U.S.C. 601-612.
\97\ 13 CFR 121.101 (2011).
\98\ 13 CFR 121.201, Sector 22 Utilities & n.1.
---------------------------------------------------------------------------
93. The Commission finds this rule concerns procedural matters and
expects it to increase the ease and convenience of filing.\99\ The
Commission certifies that it will not have a significant economic
impact upon participants in Commission proceedings. An analysis under
the RFA is not required.
---------------------------------------------------------------------------
\99\ See Order No. 703, FERC Stats. & Regs. ] 31,259 at P 39.
The Commission does not believe that an RFA analysis similar to that
provided in Order No. 714, FERC Stats. & Regs. ] 31,276 at P 113, is
required or would be useful, because persons making filings with the
Commission would not need new software, systems or training, and
would not be required to convert existing materials to the new
format, as was the case in that proceeding.
---------------------------------------------------------------------------
VII. Document Availability
94. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5:00
p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC
20426.
95. From FERC's Home Page on the Internet, this information is
available on eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number excluding the last three digits of this document in the docket
number field.
96. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from FERC Online Support at (202)
502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
VIII. Effective Date and Congressional Notification
97. These regulations are effective December 28, 2012.
List of Subjects
18 CFR Part 4
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 5
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 16
Administrative practice and procedure, Electric power, Electric
utilities, Reporting and recordkeeping requirements, Securities.
18 CFR Part 33
Electric utilities, Reporting and recordkeeping requirements.
18 CFR Part 34
Electric power, Electric utilities, Reporting and recordkeeping
requirements, Securities.
18 CFR Part 35
Electric power rates, Electric utilities, Reporting and
recordkeeping requirements.
18 CFR Part 157
Administrative practice and procedure, Natural gas, Reporting and
recordkeeping requirements, Uniform system of accounts.
18 CFR Part 348
Pipelines, Reporting and recordkeeping requirements.
18 CFR Part 375
Authority delegations (Government agencies), Seals and insignia,
Sunshine Act.
18 CFR Part 385
Administrative practice and procedure, Electric utilities,
Penalties, Pipelines, Reporting and recordkeeping requirements.
18 CFR Part 388
Confidential business information; Freedom of information.
By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
In consideration of the foregoing, the Commission amends Parts 4,
5, 16, 33, 34, 35, 157, 348, 375, 385, and 388, Chapter I, Title 18, of
the Code of Federal Regulations, as follows.
PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATIONS OF
PROJECT COSTS
0
1. The authority citation for Part 4 is revised to read as follows:
Authority: 16 U.S.C. 791a-825v, 2601-2645; 42 U.S.C. 7101-
7352.
Sec. 4.39 [Amended]
0
2. In paragraph (e) of Sec. 4.39, remove the phrase ``Critical Energy
Infrastructure Information in Sec. Sec. 388.112 and 388.113 of
subchapter X of this chapter'' and add the phrase ``privileged
materials and Critical Energy Infrastructure Information in Sec. Sec.
388.112 and 388.113 of this chapter'' in its place.
PART 5--INTEGRATED LICENSE APPLICATION PROCESS
0
3. The authority citation for Part 5 is revised to read as follows:
Authority: 16 U.S.C. 792-828c, 2601-2645; 42 U.S.C. 7101-7352.
[[Page 65475]]
0
4. Revise paragraph (c) of Sec. 5.29 to read as follows:
Sec. 5.29 Other provisions.
* * * * *
(c) Requests for privileged or Critical Energy Infrastructure
Information treatment of pre-filing submission. If a potential
Applicant requests privileged or critical energy infrastructure
information treatment of any information submitted to the Commission
during pre-filing consultation (except for the information specified in
Sec. 5.4), the Commission will treat the request in accordance with
the provisions in Sec. 388.112 of this chapter until the date the
application is filed with the Commission.
* * * * *
PART 16--PROCEDURES RELATING TO TAKEOVER AND RELICENSING OF
LICENSED PROJECTS
0
5. The authority citation for Part 16 is revised to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 42 U.S.C. 7101-7352.
Sec. 16.8 [Amended]
0
6. In the heading of Sec. 16.8(g), add the phrase ``or Critical Energy
Infrastructure Information'' after the word ``privileged''.
PART 33--APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203
0
7. The authority citation for Part 33 is revised to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.
0
8. Revise Sec. 33.8 to read as follows:
Sec. 33.8 Requirements for filing applications.
The applicant must submit the application or petition to the
Secretary of the Commission in accordance with filing procedures posted
on the Commission's Web site at http://www.ferc.gov.
(a) If the applicant seeks to protect any portion of the
application, or any attachment thereto, from public disclosure, the
applicant must make its filing in accordance with the Commission's
instructions for submission of privileged materials and Critical Energy
Infrastructure Information in Sec. 388.112 of this chapter.
(b) If required, the applicant must submit information specified in
paragraphs (b), (c), (d), (e) and (f) of Sec. 33.3 or paragraphs (b),
(c), (d) and (e) of Sec. 33.4 on electronic recorded media (i.e., CD/
DVD) in accordance with Sec. 385.2011 of this chapter, along with a
printed description and summary. The printed portion of the applicant's
submission must include documentation for the electronic information,
including all file names and a summary of the data contained in each
file. Each column (or data item) in each separate data table or chart
must be clearly labeled in accordance with the requirements of
Sec. Sec. 33.3 and 33.4. Any units of measurement associated with
numeric entries must also be included.
Sec. 33.9 [Removed and Reserved].
0
9. Remove and reserve Sec. 33.9.
PART 34--APPLICATION FOR AUTHORIZATION OF THE ISSUANCE OF
SECURITIES OR THE ASSUMPTION OF LIABILITIES
0
10. The authority citation for Part 34 is revised to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.
0
11. In Sec. 34.7, add a sentence after the first sentence to read as
follows:
Sec. 34.7 Filing requirements.
* * * If an applicant seeks to protect any portion of an
application from public disclosure, the applicant must make its filing
in accordance with the Commission's instructions for filing privileged
materials and critical energy infrastructure information in this
chapter.
PART 35--FILING OF RATE SCHEDULES AND TARIFFS
0
12. The authority citation for Part 35 is revised to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.
0
13. Revise Sec. 35.37, paragraph (f) to read as follows.
Sec. 35.37 Market power analysis required.
* * * * *
(f) If the Seller seeks to protect any portion of a filing from
public disclosure, the Seller must make its filing in accordance with
the Commission's instructions for filing privileged materials and
critical energy infrastructure information in Sec. 388.112 of this
chapter.
PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS ACT
0
14. The authority citation for Part 157 continues to read as follows:
Authority: 15 U.S.C. 717-717z.
Sec. 157.21 [Amended]
0
15. In Sec. 157.21(h), remove the phrase ``for the submission of
documents containing critical energy infrastructure information, as
defined in Sec. 388.113.'' and add the phrase ``of this chapter for
the submission of documents containing privileged materials or critical
energy infrastructure information.'' in its place.
Sec. 157.34 [Amended]
0
16. In Sec. 157.34(d)(4), remove the phrase ``under confidential
treatment pursuant to Sec. 388.112 of this chapter if desired.'' and
add the phrase ``seeking privileged treatment pursuant to Sec. 388.112
of this chapter.'' in its place.
PART 348--OIL PIPELINE APPLICATIONS FOR MARKET POWER DETERMINATIONS
0
17. The authority citation for Part 348 is revised to read as follows:
Authority: 42 U.S.C. 7101-7352, 49 U.S.C. 60502; 49 App. U.S.C.
1-85 (1988).
0
18. Revise Sec. 348.2, paragraph (a) to read as follows:
Sec. 348.2 Procedures.
(a) All filings under this part must be made electronically
pursuant to the requirements of Sec. Sec. 341.1 and 341.2 of this
chapter. A carrier seeking privileged treatment for all or any part of
its filing must submit a request for privileged treatment in accordance
with Sec. 388.112 of this chapter.
* * * * *
PART 375--THE COMMISSION
0
19. The authority citation for Part 375 is revised to read as follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
0
20. Revise Sec. 375.302, paragraph (b) to read as follows:
Sec. 375.302 Delegations to the Secretary.
* * * * *
(b) Prescribe, for good cause, a different time than that required
by the Commission's Rules of Practice and Procedure or Commission order
for filing by public utilities, licensees, natural gas companies, and
other persons of answers to complaints, petitions, motions, and other
documents.
* * * * *
PART 385--RULES OF PRACTICE AND PROCEDURE
0
21. The authority citation for Part 385 continues to read as follows:
[[Page 65476]]
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16
U.S.C. 792-828c, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 42
U.S.C. 7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App.
U.S.C. 1-85 (1988).
Sec. 385.206 [Amended]
0
22. In Sec. 385.206, remove and reserve paragraph (e).
0
23. Revise Sec. 385.213, paragraphs (c)(5) and (d)(1) to read as
follows:
Sec. 385.213 Answers (Rule 213).
* * * * *
(c) * * *
(5) When submitting with its answer any request for privileged
treatment of documents and information in accordance with this chapter,
a respondent must provide a public version of its answer without the
information for which privileged treatment is claimed and its proposed
form of protective agreement to each entity that has either been served
pursuant to Sec. 385.206(c) or whose name is on the official service
list for the proceeding compiled by the Secretary.
* * * * *
(d) Time limitations. (1) Any answer to a motion or to an amendment
to a motion must be made within 15 days after the motion or amendment
is filed, except as described below or unless otherwise ordered.
(i) If a motion requests an extension of time or a shortened time
period for action, then answers to the motion to extend or shorten the
time period shall be made within 5 days after the motion is filed,
unless otherwise ordered.
(ii) [Reserved]
* * * * *
Sec. 385.606 [Amended]
0
24. In Sec. 385.606:
0
a. In paragraph (f), remove the sentence ``See sections 385.410 and
388.112 of this chapter.''
0
b. In paragraph (j), remove the phrase ``section 388.112 of.''
PART 388--INFORMATION AND REQUESTS
0
25. The authority citation for part 388 continues to read as follows:
Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42
U.S.C. 7101-7352.
0
26. Revise Sec. 388.112 to read as follows:
Sec. 388.112 Requests for privileged treatment and Critical Energy
Infrastructure Information (CEII) treatment for documents submitted to
the Commission.
(a) Scope. (1) By following the procedures specified in this
section, any person submitting a document to the Commission may request
privileged treatment for some or all of the information contained in a
particular document that it claims is exempt from the mandatory public
disclosure requirements of the Freedom of Information Act, 5 U.S.C. 552
(FOIA), and should be withheld from public disclosure. For the purposes
of the Commission's filing requirements, information subject to an
outstanding claim of exemption from disclosure under FOIA, including
critical energy infrastructure information (CEII), will be referred to
as privileged material.
(2) Any person submitting documents containing CEII as defined in
Sec. 388.113, or seeking access to such information should follow the
procedures in this chapter.
(b) Procedures for filing and obtaining privileged or CEII
material. (1) General Procedures. A person requesting that material be
treated as privileged information or CEII must include in its filing a
justification for such treatment in accordance with the filing
procedures posted on the Commission's Web site at http://www.ferc.gov.
A person requesting that a document filed with the Commission be
treated as privileged or CEII must designate the document as privileged
or CEII in making an electronic filing or clearly indicate a request
for such treatment on a paper filing. The cover page and pages or
portions of the document containing material for which privileged
treatment is claimed should be clearly labeled in bold, capital
lettering, indicating that it contains privileged, confidential and/or
Critical Energy Infrastructure Information, as appropriate, and marked
``DO NOT RELEASE.'' The filer also must submit to the Commission a
public version with the information that is claimed to be privileged
material redacted, to the extent practicable.
(2) Procedures for Proceedings with a Right to Intervene. The
following procedures set forth the methods for filing and obtaining
access to material that is filed as privileged in complaint proceedings
and in any proceeding to which a right to intervention exists:
(i) If a person files material as privileged material or CEII in a
complaint proceeding or other proceeding to which a right to
intervention exists, that person must include a proposed form of
protective agreement with the filing, or identify a protective
agreement that has already been filed in the proceeding that applies to
the filed material. This requirement does not apply to material
submitted in hearing or settlement proceedings, or if the only material
for which privileged treatment is claimed consists of landowner lists
or privileged information filed under Sec. Sec. 380.12(f), (m), (o)
and 380.16(f) of this chapter.
(ii) 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.
(iii) Any person who is a participant in the proceeding or has
filed a motion to intervene or notice of intervention in the proceeding
may make a written request to the filer for a copy of the complete,
non-public version of the document. The request must include an
executed copy of the protective agreement and a statement of the
person's right to party or participant status or a copy of their motion
to intervene or notice of intervention. Any person may file an
objection to the proposed form of protective agreement. A filer, or any
other person, may file an objection to disclosure, generally or to a
particular person or persons who have sought intervention.
(iv) If no objection to disclosure is filed, 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. 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
until ordered by the Commission or a decisional authority.
(v) For material filed in proceedings set for trial-type hearing or
settlement judge proceedings, a participant's access to material for
which privileged treatment is claimed is governed by the presiding
official's protective order.
(vi) For landowner lists, information filed as privileged under
Sec. Sec. 380.12(f), (m), (o) and 380.16(f), forms filed with the
Commission, and other documents not covered above, access to this
material can be sought pursuant to a FOIA request under Sec. 388.108
or a CEII request under Sec. 388.113 of this chapter. Applicants are
not required under paragraph (b)(2)(iv) of this section to provide
intervenors with landowner lists and the other materials identified in
the previous sentence.
(c) Effect of privilege or CEII claim. (1) For documents filed with
the Commission:
(i) The documents for which privileged or CEII treatment is claimed
will be maintained in the Commission's document repositories as non-
public until such time as the Commission may determine that the
document is not entitled to the treatment sought and is subject to
disclosure consistent with
[[Page 65477]]
Sec. Sec. 388.108 or 388.113 of this chapter. By treating the
documents as nonpublic, the Commission is not making a determination on
any claim of privilege or CEII status. The Commission retains the right
to make determinations with regard to any claim of privilege or CEII
status, and the discretion to release information as necessary to carry
out its jurisdictional responsibilities.
(ii) The request for privileged or CEII treatment and the public
version of the document will be made available while the request is
pending.
(2) For documents submitted to Commission staff. The notification
procedures of paragraphs (d), (e), and (f) of this section will be
followed before making a document public.
(d) Notification of request and opportunity to comment. When a FOIA
or CEII requester seeks a document for which privilege or CEII status
has been claimed, or when the Commission itself is considering release
of such information, the Commission official who will decide whether to
release the information or any other appropriate Commission official
will notify the person who submitted the document and give the person
an opportunity (at least five calendar days) in which to comment in
writing on the request. A copy of this notice will be sent to the
requester.
(e) Notification before release. Notice of a decision by the
Commission, the Chairman of the Commission, the Director, Office of
External Affairs, the General Counsel or General Counsel's designee, a
presiding officer in a proceeding under part 385 of this chapter, or
any other appropriate official to deny a claim of privilege, in whole
or in part, or to make a limited release of CEII, will be given to any
person claiming that the information is privileged or CEII no less than
5 calendar days before disclosure. The notice will briefly explain why
the person's objections to disclosure are not sustained by the
Commission. A copy of this notice will be sent to the FOIA or CEII
requester.
(f) Notification of suit in Federal courts. When a FOIA requester
brings suit to compel disclosure of information for which a person has
claimed privileged treatment, the Commission will notify the person who
submitted the documents of the suit.
Sec. 388.113 [Amended]
0
27. In Sec. 388.113(d)(1) and (d)(2), remove the phrase ``paragraph
(d)(3)'' and add the phrase ``paragraph (d)(4)'' in its place.
[FR Doc. 2012-26126 Filed 10-26-12; 8:45 am]
BILLING CODE 6717-01-P