Filing Via the Internet

AGENCY:

Federal Energy Regulatory Commission, DOE.

ACTION:

Final rule.

SUMMARY:

The Commission is revising its regulations to provide that all documents will be eligible for filing by means of the Commission's eFiling system, with exceptions to be posted by the Secretary of the Commission on the Commissions Web site.

DATES:

Effective Date: This rule will become effective December 24, 2007. Changes made by this rule to the Commission's eFiling system will be implemented at a later date, to be announced by the Secretary of the Commission.

FOR FURTHER INFORMATION CONTACT:

Wilbur Miller, Office of General Counsel, 888 First Street, NE., Washington, DC 20426, (202) 502-8953. wilbur.miller@ferc.gov.

SUPPLEMENTARY INFORMATION:

Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.

I. Background

1. On July 23, 2007, the Commission issued a Notice of Proposed Rulemaking (NOPR) seeking comments on proposed revisions to its regulations that will enable the implementation of the next version of its system for filing documents via the Internet, eFiling 7.0. Filing Via the Internet, 72 FR 42330 (July 23, 2007), FERC Stats. & Regs. ¶ 32,621 (2007). The NOPR proposed to allow the option of filing all documents in Commission proceedings through the eFiling interface except for specified exceptions. The NOPR also sought comments on the possibility of shifting its deadline for filings through the eFiling system from close of business to midnight, and of utilizing online forms to allow “documentless” interventions in all filings and quick comments in P (Hydropower Project), PF (Pre-Filing NEPA activities for proposed gas pipelines), and CP (Certificates for Interstate Natural Gas Pipelines) proceedings. Finally, the NOPR asked for input on a number of technical issues that will be covered in the instructions for eFiling that will be issued by the Secretary of the Commission. These issues also were the subject of a technical conference that took place on August 22, 2007.

2. This Final Rule adopts the NOPR's proposal to amend the Commission's regulations to provide that all documents filed with the Commission may be submitted through the eFiling interface except for documents specified by the Secretary. This reverses the existing presumption, as the current regulations allow eFiling only of documents specified by the Secretary. The changes we are implementing in this Final Rule mean that categories such as oversized documents and most confidential documents will be accepted via eFiling. At this time, the principal exceptions, as noted in the NOPR, will be tariffs, tariff revisions and rate change applications; some forms; and documents that are subject to protective orders. As stated in the NOPR, for the time being, the Secretary's instructions will specify that submitters file paper copies of oversized and some other documents in addition to the electronic documents.

3. This rulemaking will become effective 30 days after publication in the Federal Register, but implementation of eFiling 7.0 will occur at a later date. The Secretary will announce the implementation of the upgrade in advance and will also at that time post filing instructions, as discussed below.

4. This Final Rule implements the proposals, discussed in the NOPR, to institute online forms that would permit optional “documentless” intervention in all proceedings and “quick comments” in P (Hydropower Project), PF (Pre-Filing NEPA activities for proposed gas pipelines), and CP (Certificates for Interstate Natural Gas Pipelines) proceedings. It should be noted that the quick comment and documentless intervention features will not require revisions to the Commission's regulations. We are not at this time implementing the proposal to move the filing deadline to midnight.

5. Prior to the release of eFiling 7.0, the Secretary will issue instructions specifying formats and other technical parameters, as well as instances in which paper copies will be required. As noted in the NOPR, the Commission has already issued instructions specifying acceptable file formats for filings submitted on CD-ROM, DVD and other electronic media. These can be found at http://www.ferc.gov/help/submission-guide/electronic-media.asp . In addition, in some cases Commission staff has issued instructions applying to specific types of filings. Where there are no specifications for a particular type of filing, users must follow the Secretary's instructions. The Commission received useful input on formatting issues both in the comments on the NOPR and in the technical conference. Users of eFiling should bear in mind that changes will inevitably take place as staff implements improvements and technology changes. Staff also receives feedback from users on an informal basis, which it uses to continue improving the system.

6. At this time, the eFiling system will accept documents in their native formats. This will include both text or word processing documents, and other more specialized documents such as spreadsheets and maps. It will also accept text documents in searchable formats, including scanned documents that have been saved in searchable form. As noted above, the Secretary has issued a list of acceptable formats for CD-ROM, DVD and other electronic media, available at http://www.ferc.gov/help/submission-guide/electronic-media.asp . This same list will serve as the list of acceptable formats for eFiling 7.0. Submitters will be able to choose a suitable format from that list unless they are instructed otherwise in specific instances by regulation or by direction from Commission staff. Audio and video files will be accepted only in waveform audio format (.wav) for audio content and either audio-video interleave (.avi) or quicktime (.mov) files for video content, except where submitters are specifically instructed otherwise.

7. The NOPR requested comments on the possibility of discontinuing the practice of posting PDF versions of filings in eLibrary that are created by Commission staff. For the time being, we will continue this practice. As discussed in the NOPR, however, users should note that PDF conversions are not always accurate or complete and should not be considered authoritative. Some documents are not susceptible to conversion at all. The PDF versions will be provided on a “best efforts” basis, so in some cases no PDF version may appear in eLibrary, or there may only be a placeholder file indicating that a PDF version could not be generated.

8. Finally, the NOPR requested comments on whether the Secretary should require documents created electronically by the filer using word processing software be filed in native applications or print-to-PDF format rather than an unsearchable, scanned format. The Secretary's instructions will adopt this proposal. Scanned, non-searchable formats may be used only for documents that cannot, as a practical matter, be put into searchable formats.

II. Discussion

A. Expansion of eFiling

9. As stated above, upon implementation of eFiling 7.0 the Commission will accept the electronic filing of all documents through the eFiling interface except for tariff filings, some forms and documents submitted under protective orders. The comments received by the Commission on the expansion of eFiling were uniformly favorable. Some commenters urged us to continue to expand the range of submissions acceptable through eFiling. In some cases, commenters urged us to accept tariff filings through the eFiling gateway, either on a permanent basis or on a temporary basis pending the institution of eTariff, which is the subject of a separate proceeding.

10. We intend, as far as practicable, to continue decreasing our reliance on paper documents and to continue to upgrade eFiling capabilities in furtherance of the Commission's responsibilities under the Government Paperwork Elimination Act. At this time, however, the Commission will not accept tariff filings through the eFiling system. The eTariff rulemaking will remain the forum for addressing the electronic submission of tariff filings with tariff material. However, eFiling may be used to file material in tariff proceedings provided the filing does not contain tariff material. Examples include testimony filed as part of the hearing, Schedules G-1 through G-6, and updated statements such as required by section 154.311 of the Commission's regulations. Also, Natural Gas Act Section 7 certificate filings with pro forma tariff sheets may be filed under this version of eFiling 7.0.

11. Some commenters expressed caution about the submission of confidential documents, including a desire for more detail about that function. There was some concern about the ability to alter a document's security designation after it is filed. Some commenters also requested clarification on the procedures for filing protected documents, including the procedures for documents submitted together with requests for protective orders.

12. The anticipated procedure for the submission of confidential documents is as follows: When a user accesses the File Upload screen, the user will see tabs for three submission categories: Public, CEII and Privileged. The files uploaded to each of these tabs will automatically receive an accession number and be marked as Public, CEII or Privileged. The entire eFiling session will be secured so the documents during transmission will be encrypted. The following system checks will be performed during the eFiling process:

• The file size will be checked to ensure the size is not greater than 50MB.
• The file format will be checked to ensure it is a format that FERC can support. The acceptable file format list can be found at the following location: http://www.ferc.gov/help/submission-guide/electronic-media.asp .
• Files will be checked for viruses.
• The file name will be checked to ensure it is less than 60 characters including the period, spaces, and file extension (.doc, .xls, .pps, etc.).

If for any reason, the files that have been uploaded fail to pass any one of the checks above, a message will be displayed identifying the issue and the user will not be permitted to proceed with the filing process.

13. It will not be possible for a user, through eFiling, to change the designation of a file as public, privileged, or CEII after submission of the document. This will only be possible before submission, in case the user changes her mind or finds a mistake. Any subsequent redesignation request will have to be made by calling FERC Online Support or the eFiling Help Line. Users should continue to follow the Commission's regulations governing submission of confidential documents. If a user needs to submit both a redacted and a privileged form of a document, the latter should be submitted as privileged and the former as public.

14. In some instances, a document may contain portions that are privileged and other portions that constitute CEII. In such an instance, the CEII portions would be filed as CEII and the privileged portions would be filed separately and designated as privileged. If a portion of a document was both privileged and CEII, it would be filed as privileged because that is the higher security classification.

15. Some parties request the ability to file privileged or CEII material in paper-only format. The Commission notes that this Final Rule only provides filers the option to use eFiling to make filings with the Commission. Filers who do not wish to use eFiling need not do so. To the extent that these commenters are requesting that the Commission permit filers to split their filings into an electronic component and a paper component, the Commission rejects this request. The Commission does not want to assume the responsibility of finding the paper and electronic components of a single filing and reassembling those components for uploading into eLibrary or internal distribution and analysis. Dual format filings create significant potential for errors and delays.

16. To clarify, materials subject to protective orders should not be eFiled because the Secretary's office does not put protected material into eLibrary, as opposed to material filed pursuant to Section 388.112 of the Commission's regulations. The same restriction applies to confidential materials filed with a request for a protective order.

B. Paper Copies

17. The NOPR proposed to continue to require paper copies of filings submitted electronically through eFiling 7.0, for instance, oversized documents such as maps, diagrams and drawings. The NOPR explained that due to the size of standard monitors and other hardware and software limitations, it was impractical at this time for the Commission to review certain documents in electronic form. The NOPR also raised the possibility of requiring paper copies for documents over a certain length, such as 500 pages. Some commenters requested that “oversized documents” or “large documents” be defined as those documents larger than 8.5″ x 11″, 8.5″ x 14″, or 8.5″ x 17″. Others asked for further clarifications, such as whether the paper requirement applies only to the oversized portions of documents that also have standard dimensions. Commenters were not in favor of requiring paper copies of long documents.

18. The Secretary's instructions will require paper copies in a specified number of documents larger than 11″ × 17″. This is a standard dimension for “oversized” documents. If a document contains both oversized and standard dimensions, only the former need be filed on paper. Paper copies of long documents, i.e., documents longer than a specified number of pages, will not be required. Further specifics will be contained in the instructions to be issued by the Secretary. Over time, as we upgrade our capabilities, we expect to be able to reduce the necessity of filing paper copies.

19. In response to the comments about the timing of submission of paper copies, we wish to state clearly the roles played by the paper and electronic copies. The revisions made in this Final Rule, in 18 CFR 385.2003(c)(1), will provide that “filing via the Internet is in lieu of other methods of filing.” Thus, the electronic copy will be the “filed” copy. This will be the copy to which the Commission looks for matters such as determining timeliness. Paper copies will be required in some instances because they are currently necessary for FERC staff to carry out its functions. The Secretary's instructions will specify the time by which the paper copies must be submitted.

C. File Formats

20. The NOPR raised the possibility of discontinuing our practice of creating PDF versions of documents in eLibrary. In conjunction with this possibility, the NOPR requested comments on several alternative requirements for file formats of documents submitted through eFiling. The three alternatives noted were: Requiring that all word processing filings be made in open file formats, such as text, html, rtf, or possibly PDF; permitting filings in open file formats as well as in certain Microsoft Office formats; and requiring that documents created with proprietary software be filed in the proprietary software along with an open source format. The NOPR also discussed the possibility of prohibiting the practice of filing non-searchable, scanned versions of documents created in native formats.

21. Generally speaking, commenters opposed any requirement that documents be filed in more than one format. Some commenters favored retention of FERC-created PDFs or otherwise expressed a preference for some sort of open file format to maximize accessibility of documents to the public. Preferences between native and converted formats varied. Some commenters favored prohibiting the practice of scanning documents and filing them in non-searchable formats. Some noted that data-oriented documents such as spreadsheets lose much of their utility if not filed in their native formats. Others expressed a preference for filing scanned, non-searchable documents, in PDF format, in some cases out of concern that the documents could be manipulated.

22. Based on the comments received, we will continue to create PDF versions of submitted documents in eLibrary on a “best efforts” basis. This practice assures that users who may lack specific proprietary software will be able to access documents most of the time. As noted above, however, some documents cannot be converted to PDF successfully and thus some conversions will not be entirely accurate or complete. The FERC-created PDFs should not be considered authoritative. Persons submitting documents through eFiling will have the option of filing in any format listed as acceptable by the Secretary.

23. The Secretary's instructions will require PDF files that are submitted to be produced in a manner that retains the ability to search the document (“print-to-PDF”), except in cases where it is impracticable for the filer to do otherwise. This is often the case with exhibits, for example. The search feature provides the Commission and the public access to tools that permit faster searches, increased accuracy, and enhanced analytical and processing capabilities that modern software technology provides.

24. Submission of text documents will be permissible in native or in searchable format. We will not require submission of text documents in both native and open formats. In most cases, submission of text documents in their native formats is the simplest option. Not all users possess the same degree of technical knowledge. Requiring conversion of documents to open formats might serve as a barrier to the use of the eFiling system for some users, a possibility that runs counter to the underlying purpose of the system.

25. Submission of spreadsheets in native format will be required. Some commenters expressed concern that spreadsheets in native format may contain formulas and other data that are confidential. One commenter argues further that formula and data may contain proprietary information, and that a native format requirement may contravene the Interstate Commerce Act prohibition against disclosing individual shipper information. That commenter believes the requirement to provide formulas may lead to less publicly available data.

26. The Commission addressed these issues before. In Order No. 582, the Commission required pipelines filing rate cases pursuant to Part 154 of the Commission's regulations to file data and allocation and rate design formulas in electronic formats. The Commission found that formulas facilitate an understanding of the applicant's positions and reduce the requirement for subsequent data requests. The Commission went on to note that the requirement was not to submit the whole rate case in spreadsheet format. The same will be true here. The Commission is simply providing a different means by which data requirements may be submitted, not changing the requirements themselves. A filer still may request confidential treatment. In such cases, the data sets and spreadsheets should be submitted in both privileged, unredacted form and in public, redacted form, pursuant to 18 CFR 388.112. Depending on the application and the information being redacted, a redaction might be accomplished by filing a print to PDF or a scanned, searchable document, by converting a spreadsheet to values-only form, or by some other means. It would be up to the filer to choose an appropriate means of protecting its information in requesting confidential treatment under the Commission's regulations.

27. We do not agree with the concerns that documents may be altered. There is no reason to believe that users will be able to compromise the Commission's system and alter files in eLibrary. Furthermore, if a user downloads a document from eLibrary and alters it for the user's own purposes, the authoritative document will remain in eLibrary to refute the alteration. We also do not believe that the desire to include a scanned signature is sufficient to outweigh the greater usefulness of searchable documents. As stated in the NOPR, the Commission's regulations provide for electronic signatures, so an image of a signature is not necessary for purposes of verification. For submitters who still see a need for an image of a handwritten signature, we note that it is possible to insert an image into a Word document. Moreover, filers that previously scanned documents into PDF format can produce a print-to-PDF searchable document and attach a single scanned signature page.

D. Quick Comment and Documentless Intervention

28. The NOPR's proposal to implement online forms that would allow users to intervene in Commission proceedings without filing separate documents and to submit comments easily in P (Hydropower Project), PF (Pre-Filing NEPA activities for proposed gas pipelines), and CP (Certificates for Interstate Natural Gas Pipelines) proceedings drew support from some commenters and opposition from a smaller number. Some commenters objected to these features as unneeded. Some commenters expressed concern that there should be some provision for prompt service of interventions and comments submitted through the proposed online forms. One commenter requested that users submitting quick comments be required to provide mailing addresses and other information. Another suggested that the quick comment feature be extended to include electric matters and rulemakings.

29. Both features are sufficiently useful to justify their implementation. Documentless intervention, which will be available for all proceedings, will provide a simple method of intervening. The filer and text for all documentless interventions will be placed on eLibrary to permit challenges to intervention. We believe that the quick comment feature will make it easier for individuals who are not intimately familiar with Commission procedures to submit comments. This added convenience should primarily impact proceedings in which landowners may wish to comment, which is the reason we will restrict this feature to the proceedings listed in the preceding paragraph. We will consider expanding the availability of the feature in the future. We will not require quick comment submitters to include mailing addresses, a potential invasion of privacy that is not warranted. With respect to service of interventions and comments, these features will not involve changes to the Commission's regulations. Any regulations governing service will continue to apply. Furthermore, the use of eSubscription should suffice to ensure that interested persons receive prompt notice of these submissions.

E. Midnight Filing

30. Comments were mixed on whether to regard documents submitted through eFiling as having been filed on a specific day as long as the document is received on or before midnight Eastern Standard Time of that day. While some commenters favored the change, a larger number either favored it only under specified conditions or opposed it altogether. The objections included the personal hardship of late-hour filing, unfairness to paper filers, and the possibility that some filers would use the opportunity to file improper reply comments in response to comments filed earlier in the day. Some commenters suggested that if we moved the deadline, we should ensure that comments would not be visible to the public in eLibrary until the next day. Others were concerned that the eFiling system could be unavailable to a user facing a deadline after it was too late to make a paper filing. We also received suggestions that move the deadline to an intermediate hour, such as 8 p.m. Eastern Time, as an accommodation to users in Western time zones.

31. Based on the concerns raised in the comments, we will not at this time alter the filing deadline. It will remain at close of business, i.e., 5 p.m. Eastern Time.

F. Miscellaneous Comments

32. On August 22, 2007, the Commission hosted a technical conference that discussed the proposed changes to electronic filing and electronic file and document format instructions that are associated with this proceeding. The conference was conducted in two sessions. Session 1 presented an overview of the electronic filing submission instructions that will apply universally. Session 2 was divided into sections that discussed information that is specific to each industry.

33. We received some comments on various technical aspects of documents submitted through eFiling, many of which were discussed during the technical conference. These comments will be taken into account by Commission staff in developing and revising the filing instructions that the Secretary will issue. The instructions for eFiling are an ongoing process, as staff often receives feedback on the system from users, including comments received informally during outreach efforts that give users an introduction to various aspects of FERC Online. The delegated authority the Commission is giving the Secretary to make changes to the various requirements to make an electronic filing through the notice process will permit these instructions to be updated in a timely manner in response to user needs and changes in FERC's technological capabilities.

34. INGAA proposes that the pipeline's Index of Customers report, already an electronic-only filing, be made through eFiling 7.0. The Commission agrees.

35. INGAA and PG&E request that the Commission hold additional technical conferences to review both the proposed instructions applicable to electronic documents in general and existing electronic document instructions, and software techniques that may assist filers in creating documents that satisfy the filers' objectives. Further conferences should not be necessary. The Secretary engages in outreach with the public to review new or existing electronic document or submission instructions. This outreach often generates feedback that Commission staff takes into account in managing the system.

36. Some commenters made suggestions for improvements in the Commission's online systems. These included requests that we take steps to ensure that each entity in the eRegistration system has only one registration and that we institute an automated service feature for service among participants. The problem of multiple registrations, specifically with entities being registered more than once under slightly different names, is an issue that we hope to address in the future. Similarly, an automated service feature would add value for users and we hope to be able to institute such a feature as we upgrade the system.

III. Information Collection Statement

37. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule. This Final Rule does not contain any information collection requirements and compliance with the OMB regulations is thus not required.

IV. Environmental Analysis

38. 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. Issuance of this Final Rule does 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. This rulemaking is exempt under that provision.

V. Regulatory Flexibility Act

39. The Regulatory Flexibility Act of 1980 (RFA) generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. This Final Rule concerns procedural matters and is expected to increase the ease and convenience of filing. 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.

VI. Document Availability

40. 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 the Commission's Home Page ( http://www.ferc.gov ) and in the Commission'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.

41. From the Commission'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.

42. User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov.

VII. Effective Date and Congressional Notification

43. These revisions are effective December 24, 2007. Changes made by this Final Rule to the Commission's eFiling system will be implemented at a later date to be announced by the Secretary.

44. The provisions of 5 U.S.C. 801 regarding Congressional review of Final Rules do not apply to this Final Rule because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

List of Subjects

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

In consideration of the foregoing, the Commission amends Parts 375 and 385, Chapter I, Title 18, Code of Federal Regulations, as follows.

PART 375—THE COMMISSION

1. The authority citation for part 375 continues 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, 16451-16463.

2. Section 375.302 is amended by revising paragraph (z) to read as follows:

PART 385—RULES OF PRACTICE AND PROCEDURE

3. 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-825v, 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).

4. Section 385.2001 is amended by revising paragraph (a)(1)(iii) to read as follows:

5. Section 385.2003 is amended by revising paragraphs (c)(1) and (c)(2) to read as follows: