00-24200. Electronic Filing of Documents

Issued September 14, 2000.

AGENCY:

Federal Energy Regulatory Commission, DOE.

ACTION:

Final rule.

SUMMARY:

The Federal Energy Regulatory Commission (Commission) is amending its rules of practice and procedure (18 CFR part 385) to permit the electronic filing of limited categories of documents in proceedings before the Commission on a voluntary basis. This measure is necessary to further the Commission's goal of reducing the amount of paper that participants in Commission proceedings must file. Increased use of electronic filing will reduce the burden and expense associated with paper filings, and help to make information available to the public in a faster and more efficient manner.

EFFECTIVE DATE:

This final rule is effective on November 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Brooks Carter, Office of the Chief Information Officer, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, [phone].

Wilbur Miller, Office of the General Counsel, 888 First Street, NE., Washington, DC 20426, [phone].

SUPPLEMENTARY INFORMATION:

I. Introduction

The Federal Energy Regulatory Commission (Commission) is amending 18 CFR part 385 to allow for electronic filing of documents in certain circumstances. This measure is necessary to further the Commission's goal of reducing the amount of paper that participants in Commission proceedings must file. Increased use of electronic filing will reduce the burden and expense associated with paper filings, and help to make information available to the public in a faster and more efficient manner.

II. Background

In order to increase the efficiency with which it carries out its program responsibilities, the Commission is implementing measures to use information technology to reduce the amount of paperwork required in proceedings before the Commission. This rulemaking is a step in the process of replacing paper with electronic filings by allowing participants in Commission proceedings to submit certain types of documents electronically, on a voluntary basis, without also filing paper copies.

Both the legislative and executive branches of the Federal government have set as goals the substitution of electronic means of communication and information storage for paper means. For example, the Government Paperwork Elimination Act directs agencies to provide for the optional use and acceptance of electronic documents and signatures, and electronic record-keeping, where practical, by October 2003.^[1] Similarly, Office of Management and Budget Circular A-130 requires agencies to employ electronic information collection techniques where such means will reduce the burden on the public, increase efficiency, reduce costs, and help provide better service.^[2]

On October 1, 1999, the Commission commenced a pilot project in which participants who volunteered to do so submitted specified categories of documents electronically in addition to paper copies. Commission staff worked closely with participants in the pilot to address technical and technological issues that arose during the pilot. The Commission's experience with the pilot has shown that the best course of action is, with respect to limited types of documents, to begin now accepting electronic submissions in lieu of paper on a voluntary basis. Over time, the Commission expects to expand the types of documents it accepts electronically.

III. Discussion

Currently, the Commission's rules require the submission of the original and fourteen copies of submissions under 18 CFR part 385 ^[3] or, in hydropower cases, eight copies.^[4] This rulemaking will, for limited categories of documents, allow participants to submit documents via the Internet in lieu of all paper copies. The choice whether to make an electronic submission belongs to the participant making the submission; paper copies will still be accepted. Participants choosing to submit electronic documents will not have to comply with requirements for submitting paper copies.

This rule provides that the Secretary shall issue instructions indicating the categories of documents that may be filed via the Internet. Initially, these instructions will allow electronic submission only of protests under §§ 343.3 and 385.211 of the Commission's regulations, and of comments on certain filings made with the Commission. Although the term “comments” is not precisely defined in the Commission's regulations, in practice the Commission receives a variety of submissions denoted as “comments.” These include, for example, comments on applications or filings, technical conferences, environmental documents, and settlements. At this time, the Secretary's instructions will permit filing via the Internet of comments other than those on rulemakings and settlements, and those submitted in connection with matters set for hearing. The Commission expects gradually to expand the categories of submissions that it will accept in electronic form. The Secretary is authorized by this rule to add new categories of documents in situations where no new requirements will be imposed upon the electronic filer. Electronic filings that involve placing additional or changed requirements upon submitters, such as enhanced security requirements, will be the subject of future rulemakings.

It is important to note that participants will not be able to submit via the Internet filings that contain both a document that is permitted to be filed electronically and one that is not. The Commission at times receives documents that contain, for example, both a notice of intervention and comments or a protest. Because the Secretary's initial instructions under this rulemaking will not include notices of intervention, such a combined filing could not be made via the Internet. The protest or comments would have to be submitted separately to employ Internet filing.

Although the Commission will not at this time be accepting electronic submission of comments on rulemakings in lieu of paper copies, it encourages rulemaking commenters to submit electronic versions of their comments to [e-mail]. Paper copies of rulemaking comments must still be submitted.

This final rule does not supersede any pre-existing filing requirements. The procedures for electronic submissions contained in 18 CFR 385.2011 remain unaffected and paper copies required under those procedures will still be required. This final rule also does not alter the Commission's policy against submissions via facsimile transmission.

In order to ease the burden on participants wishing to submit electronic documents, the Commission will accept such submissions in a variety of formats, which will be listed in instructions issued by the Secretary. Participants may submit documents in Portable Document Format (PDF), but are not required to do so. The Commission, upon receiving an electronic document, will convert it to PDF and then to Tagged Image File Format (TIFF). Both the PDF and TIFF images will be made available to the public through the Commission's Records and Information Management System (RIMS). Because the Commission is not requiring documents to be submitted in PDF, different users, when they view or print out a document, will find different page breaks. For this reason, it will be necessary for participants in Commission proceedings, when citing to a document that was submitted electronically, to cite to pages contained in the PDF image found on RIMS. If a submitter files both a paper copy of a document and an electronic version that complies with the provisions of this rule, the PDF image of the electronic version contained on RIMS, rather than the paper version, will be the one to which participants should refer for citation purposes.

The Secretary will issue detailed instructions for electronic submissions. In summary, participants wishing to submit documents electronically will be able to do so through the Commission's web site, using a user ID and password. Users will be able to create their own IDs and passwords. Information that users submit to obtain a password will be used only to authenticate the identity of the filer, and not for any other purpose. The user then can submit the document by following the on-screen instructions. Submission of a document electronically will produce three acknowledgments, all of which the user will receive by e-mail. The first will be a simple acknowledgment of receipt that the user will receive immediately. The second, which also will be received after a minimal delay, will contain a link to the PDF image that either will have been filed by the submitter or created automatically by the Commission's computer system. The user will be able to access this image to verify that the Commission has received the submitted document. The third acknowledgment, which the user will receive after a short delay, will indicate whether the Secretary has approved the document for electronic filing and will contain a link to the TIFF image. At the same time this third acknowledgment is sent, the document will be sent to RIMS for posting in both PDF and TIFF forms. There will be a short delay, after the third acknowledgment, before the document is available on RIMS.

In order to determine the level of signature technology necessary for adequate security, Commission staff has conducted an assessment of the risks involved with electronic submission of the documents covered in the instructions to be issued by the Secretary at this time.^[5] The electronic submissions allowed by this rulemaking present a very low security risk. The submission of comments does not involve transfers of funds. There is no financial or legal liability involved, although one may result from actions taken or required by the Commission in response to a filed document. A few filings may contain privileged or confidential information, but the Commission will not at this time accept electronic submissions that contain information for which the submitter requests confidential treatment. Electronically filed comments will be made available via the Commission's Internet site. Since the filings are public, there is minimal risk of dispute over the content of the filing at a later date. There also would be little reason for an intruder to alter or falsify a filing, because the intrusion would be easily identified and remedied. Because of the low level of risk associated with this rulemaking, the Commission concludes that a user name/password system is an appropriate level of authentication for these filings.

With respect to time of receipt, this rule provides that a document is received when the Commission receives the last byte of information. An electronic submission governed by a due date must be received by the time at which a paper document would have to be received, generally close of business on the due date.^[6] Documents received after close of business will be considered to have been received on the following business day. The Commission is aware of the difficulties that go hand-in-hand with technological improvements. The Secretary has sufficient authority under 18 CFR 375.302 to grant extensions of time for good cause shown.

The Commission is issuing this rulemaking as a final rule, without a period for public comment. Under 5 USC 553(b), notice and comment procedures are unnecessary for rulemakings that concern only matters of agency practice and procedure. This rulemaking fits that description. In addition, the rulemaking is limited in scope because of the limited categories of submissions to which it applies, and it is entirely voluntary, imposing no requirements on any participant.

IV. Regulatory Flexibility Act Certification

The Regulatory Flexibility Act (RFA) requires agencies to prepare certain statements, descriptions and analyses of rules that will have a significant impact on a substantial number of small entities.^[7] The Commission is not required to make such analyses if a rule would not have such an effect.

The Commission certifies that this rule will not have such an impact on small entities. Most companies regulated by the Commission do not fall within the RFA's definition of small entity.^[8] Further, the filing requirements of small entities are not significantly impacted by this rule, and the rule in any event is voluntary and imposes no requirements upon any entities.

V. Environmental Statement

Commission regulations require that an environmental assessment or an environmental impact statement be prepared for any Commission action that may have a significant adverse effect on the human environment.^[9] The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Among these are rules that are clarifying, corrective, or procedural, or that do not substantively change the effect of the regulations being amended.^[10] This rule is procedural in nature and therefore falls under this exception; consequently, no environmental consideration is necessary.

VI. Information Collection Statement

The Office of Management and Budget's (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule.^[11] Respondents subject to the filing requirements of this Rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number. This final rule does not contain a new or amended information collection(s) subject to the Paperwork Reduction Act of 1995.^[12] The modifications contained in this rule do not impose any additional compliance burden on persons dealing with the Commission. All parties will still be permitted to file comments on paper, exactly as they do today. Accordingly, pursuant to OMB regulations, the Commission is providing notice of this amendment to its procedures to OMB.

Public Reporting Burden: Because of the voluntary nature of this rule, it is difficult at this time to determine how many will participate in submitting documents via the Internet as opposed to paper. Commission Staff has estimated that the Commission receives over 20,000 filings per year concerning comments, protests and motions to intervene. However, as noted earlier, motions to intervene are not the subject of this rule. We anticipate that in the first year, 25% of the filings will be submitted electronically, 50% in the second year and 80% in the third year. However, because many of the filings are by one-time filers, the likelihood of exceeding 80% may not be achieved.

The implementation of this option will make it easier for the public to participate in the Commission's proceedings and is an important step in the Commission's efforts to streamline and improve the Commission's decision-making process. The electronic submission of comments will reduce expenses involved with paper filings and service, such as copying, mailing and messenger costs. Furthermore, this procedure will allow for the on-line review of comments filed with the Commission by the staff and by the public. In addition, the Commission is implementing the requirements of the Government Paperwork Elimination Act. Participants who file electronically will no longer have to file an original and, in most cases, fourteen copies for these categories of documents.

For information on this amendment to the Commission's rules, or suggestions on efforts to alleviate the burden through the use of electronic filing, please send your comments to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 (Attention: Michael Miller, Office of the Chief Information Officer, [phone], or [e-mail]) or send comments to the Office of Management and Budget (Attention: Desk Officer for the Federal Energy Regulatory Commission [phone], fax: [phone]). In addition, comments on reducing the burden and/or improving the collections of information should also be submitted to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Desk Officer for the Federal Energy Regulatory Commission, 725 17th Street, NW., Washington, DC 20503.

VII. Document Availability

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.fed.us) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

From FERC's Home Page on the Internet, this information is available in both the Commission Issuance Posting System (CIPS) and the Records and Information Management System (RIMS).

• CIPS provides access to the texts of formal documents issued by the Commission since November 14, 1994.
• CIPS can be accessed using the CIPS link or the Energy Information Online icon. The full text of this document is available on CIPS in ASCII and WordPerfect 8.0 format for viewing, printing, and/or downloading.
• RIMS contains images of documents submitted to and issued by the Commission after November 16, 1981. Documents from November 1995 to the present can be viewed and printed from FERC's Home Page using the RIMS link or the Energy Information Online icon. Descriptions of documents back to November 16, 1981, are also available from RIMS-on-the-Web; requests for copies of these and other older documents should be submitted to the Public Reference Room.

User assistance is available for RIMS, CIPS, and the Website during normal business hours from our Help line at [phone] (E-Mail to [e-mail]) or the Public Reference at [phone] (E-Mail to [e-mail]).

During normal business hours, documents can also be viewed and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and the FERC Website are available. User assistance is also available.

VIII. Effective Date and Congressional Notification

This regulation becomes effective on November 1, 2000. The Commission has concluded that this rule is not a “major rule” as defined in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. The provisions of 5 U.S.C. 801, regarding Congressional review of rulemakings, do not apply to this rulemaking because it concerns agency procedure and practice and will not substantially affect the rights and obligations of non-agency parties. 5 U.S.C. 804(3)(C).

List of Subjects in 18 CFR Part 385

• Administrative practice and procedure; Electric Power; Penalties; Pipelines; Reporting and recordkeeping requirements

By the Commission.

David P. Boergers,

Secretary.

In consideration of the foregoing, the Commission revises part 385, subpart T, Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 385—RULES OF PRACTICE AND PROCEDURE

1. The authority citation for part 385 continues to read as follows:

Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85.

2. Section 385.2001 is revised to read as follows:

§ 385.2001

Filings (Rule 2001).

(a) Filings with the Commission. (1) Except as otherwise provided in this chapter, any document required to be filed with the Commission must comply with Rules 2001 to 2005 and must be submitted to the Secretary by:

(i) Mailing the document to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426;

(ii) Hand delivering the document to Room 1A, 888 First Street, NE., Washington, DC; or

(iii) In the case of qualified documents as defined in Rule 2003(c)(2), by filing via the Internet pursuant to Rule 2003(c) at the following URL: www.ferc.fed.us.

Note:

Help for filing via the Internet is available by phone at 202-208-0258 or e-mail at [e-mail].

(2) Any document is considered filed, if in paper form, on the date stamped by the Secretary or, in the case of a document filed via the Internet, on the date indicated in the acknowledgment that will be sent immediately upon the Commission's receipt of a submission, unless the document is subsequently rejected. Any document received after regular business hours is considered filed on the next regular business day.

(b) Rejection. (1) If any filing does not comply with any applicable statute, rule, or order, the filing may be rejected, unless the filing is accompanied by a motion requesting a waiver of the applicable requirement of a rule or order and the motion is granted.

(2) If any filing is rejected, the document is deemed not to have been filed with the Commission.

(3) Where a document is rejected under paragraph (b)(1) of this section, the Secretary, or the office director to whom the filing has been referred, will notify the submitter and indicate the deficiencies in the filing and the reason for the rejection.

(4) If a filing does not comply with any applicable requirement, all or part of the filing may be stricken. Any failure to reject a filing which is not in compliance with an applicable statute, rule, or order does not waive any obligation to comply with the requirements of this chapter.

3. Section 385.2003 is revised to read as follows:

§ 385.2003

Specifications (Rule 2003).

(a) All filings. Any filing with the Commission must be:

(1) Typewritten, printed, reproduced, or prepared using a computer or other word or data processing equipment;

(2) Have double-spaced lines with left margins not less than 11/2 inch wide, except that any tariff or rate filing may be single-spaced;

(3) Have indented and single-spaced any quotation that exceeds 50 words; and

(4) Use not less than 10 point font.

(b) Filing by paper.

(1) Any filing with the Commission made in paper form must be:

(i) Printed or reproduced, with each copy clearly legible;

(ii) On letter-size unglazed paper that is 8 to 81/2 inches wide and 101/2 to 11 inches long; and

(iii) Bound or stapled at the left side only, if the filing exceeds one page.

(2) Any log, graph, map, drawing, or chart submitted as part of a filing will be accepted on paper larger than provided in paragraph (b)(1) of this section, if it cannot be provided legibly on letter-size paper.

(c) Filing via the Internet.

(1) A document filed with the Commission via the Internet must:

(i) Be a qualified document;

(ii) Be filed in accordance with instructions issued by the Secretary and made available on the Commission's web site at www.ferc.fed.us/​efi/​doorbell.htm.

(2) For purposes of Internet filings, qualified documents shall be those categories of documents listed in instructions to be issued by the Secretary. The Secretary is authorized to issue and amend a list of qualified documents only to the extent that no additional requirements are placed upon submitters of electronic documents beyond those contained in the Commission's regulations.

(3) Documents requiring privileged or protected treatment by the Commission may not be filed via the Internet.

(4) Qualified documents may not be combined with other documents in an electronic filing. (Example: A protest that is a qualified document and a notice of intervention that is not may not be filed electronically as one document. The protest must be filed electronically as a separate document.)

(5) For purposes of statutes or regulations governing timeliness, a document filed via the Internet will be deemed to have been received by the Commission at the time the last byte of the document is received by the Commission.

(d) Citation form. Any filing with the Commission should comply with the rules of citation, except Rule 1.1, set forth in the most current edition of A Uniform System of Citation, published by The Harvard Law Review Association. Citations to specific pages of documents filed via the Internet should use the page numbers appearing in the PDF (Portable Document Format) version of the document available on the Commission's web site.

4. Section 385.2004 is revised to read as follows:

§ 385.2004

Original and copies of filings (Rule 2004).

Any person filing under this chapter must provide an original of the filing and fourteen exact copies, unless otherwise required by statute, rule, or order. The provisions of this section and of § 4.34(h) of this Chapter do not apply in the case of a document properly filed via the Internet under Rule 2003(c).

5. Section 385.2005 is revised by adding paragraph (c) as follows:

§ 385.2005

Subscription and verification (Rule 2005).

* * * * *

(c) Electronic signature. In the case of a document filed via the Internet pursuant to Rule 2003(c), the typed characters representing the name of a person shall be sufficient to show that such person has signed the document for purposes of this section.

Footnotes

1.  Pub. L. 105-277, sections 1702-1704.

2.  Circular A-130, Para. 8.a.1(k).

3.  18 CFR 385.2004.

4.  18 CFR 4.34.

5.  The Office of Management and Budget has directed agencies to assess the risks involved in determining the appropriate level of security for electronic filing. See 65 FR 25508, Section 2 (May 2, 2000).

6.  See 18 CFR 375.101, 375.105.

7.  5 U.S.C. 601-612.

8.  5 U.S.C. 601(3) provides the definition of small business concern.

9.  Order No. 486, Regulations Implementing National Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,783 (1987).

10.  18 CFR 380.4(a)(2)(ii).

11.  5 CFR 1320.12.

12.  44 U.S.C. 3501 et seq.