[Federal Register Volume 64, Number 112 (Friday, June 11, 1999)]
[Rules and Regulations]
[Pages 31493-31497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13986]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 385
[Docket No. RM99-6-000; Order No. 604]
Electronic Service of Documents
Issued May 26, 1999.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
amending Rule 2010(f) (18 CFR 385.2010(f)) to permit participants to
proceedings before the Commission voluntarily to serve documents on one
another by electronic means. This revision is intended to give the
participants more flexibility in meeting the service requirements, and
to encourage participants to gain experience with electronic service.
This change is an important step in the Commission's plan to convert to
broad-based electronic filing.
DATES: This final rule is effective July 12, 1999.
FOR FURTHER INFORMATION CONTACT:
Brooks Carter, Office of the Chief Information Officer, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202) 501-8145;
Wilbur Miller, Office of the General Counsel, 888 First Street, NE.,
Washington, DC 20426, (202) 208-0953.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Public Reference Room
at 888 First Street, NE, Room 2A, Washington, DC 20426
The Commission Issuance Posting System (CIPS) provides access to
the texts of formal documents issued by the Commission from November
14, 1994, to the present. CIPS can be accessed via Internet through
FERC's Home page (http://www.ferc.fed.us) using the CIPS Link or the
Energy Information Online icon. Documents will be available on CIPS in
ASCII and WordPerfect 6.1. User assistance is available at 202-208-2474
or by E-mail to [email protected].
This document is also available through the Commission's Records
and Information Management System
[[Page 31494]]
(RIMS), an electronic storage and retrieval system 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.
RIMS is available in the Public Reference Room or remotely via Internet
through FERC's Home page using the RIMS link or the Energy Information
Online icon. User assistance is available at 202-208-2222, or by E-mail
to [email protected].
Finally, the complete text on diskette in WordPerfect format may be
purchased from the Commission's copy contractor, RVJ International,
Inc. RVJ International, Inc. is located in the Public Reference Room at
888 First Street, NE, Washington, DC 20426.
Before Commissioners: James J. Hoecker, Chairman; Vicky A.
Bailey, William L. Massey, Linda Breathitt, and Curt Hebert, Jr.
I. Introduction
The Federal Energy Regulatory Commission (Commission) is amending
18 CFR 385.2010 to allow for electronic service of documents in certain
circumstances. The Commission is modifying the existing service rule to
make clear that willing participants may serve and receive documents by
electronic means. This revision is intended to give participants more
flexibility in meeting the service requirements, and to encourage
participants to gain experience with electronic service. This change is
an important step in the Commission's plan to convert to broad-based
electronic filing.
II. Background
In order to increase the efficiency with which it carries out its
program responsibilities, the Commission is moving forward with
measures to use information technology to reduce the amount of
paperwork required in proceedings before the Commission. One part of
that effort, and the subject of this rulemaking, is to make document
service more efficient by employing electronic means where the
participants so agree. This rule follows the Commission's action in 86
FERC para. 61,324 (1999) (rehearing pending), in which it amended its
complaint procedures, in 18 CFR 385.206(c), to allow service of
complaints by electronic mail.
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
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\1\ Pub. L. 105-277, Sections 1702-1704.
\2\ Circular A-130, Para. 8.a.1(k).
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On May 13, 1998, the Commission issued a request for comments and
notice of intent to hold a technical conference in its Electronic
Filings Initiative, Docket No. PL 98-1-000. The Commission stated,
inter alia, that it intended to clarify its rules to facilitate the use
of electronic service.3 It also presented the question
whether it should encourage electronic service among parties over the
Internet.4
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\3\ 63 FR 27532 (May 13, 1998).
\4\ Id.
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Most commenters and participants at the conference favored some
form of electronic service, including the following recommendations:
(a) allowing participants to reach agreement among themselves regarding
electronic service; (b) allowing electronic service over the Internet;
(c) allowing e-mail notice of filing with a reference to a copy of the
filing on the filer's or the Commission's web site; and (d) use of a
server to facilitate electronic service by the Commission and by
participants in proceedings.
The Commission continues to believe that electronic service among
participants should be encouraged. The revision contained in this
rulemaking is preliminary to the separate task of implementing
procedures governing electronic filing of documents.
III. Discussion
Rule 2010(f) currently states that service may be effected by
first-class United States mail or better, or ``[b]y delivery in a
manner that, and to a place where, the person on whom service is
required may reasonably be expected to obtain actual and timely
receipt.'' The current rule does not provide specifically for
electronic service. To make clear that such service is permissible, the
Commission is amending the service rule to add the express option of
service by electronic means among participants who voluntarily agree to
use electronic service.
This rule is only intended to address service among participants,
and does not change the rules for filings made with the Commission.
Electronic filing with the Commission will be the subject of a future
rulemaking.
This rule leaves it up to individual participants to come to
agreement about the use of electronic service. It will not be necessary
for every participant in a particular case to agree to use electronic
service. Agreements need not be reciprocal. For instance, if
participant A prefers to receive service electronically, participant B
could agree to serve A electronically even if B did not want electronic
service.
Under this rule, participants should not discriminate in their use
of electronic service. For instance, if multiple participants agree to
serve one another documents in a particular format via e-mail, they
cannot refuse to serve another willing participant the same way.
However, the rule contains no restriction on the number or variety of
methods of electronic service that can be used in a particular matter.
Some participants could agree to receive service in one format, while
at the same time other participants could agree to receive service in
another format.
Depending on the software used for creation of documents, the page
numbering of documents may vary depending on the fonts, margins and
other formatting options used. The Commission recognizes that such
formatting differences can create problems in accurate citation to
documents filed with the Commission. But such problems should be
surmountable. To ensure a consistent citation format for documents
officially filed with the Commission, participants should cite to the
official version of the filed document in compliance with Rule
2003(c).5
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\5\ 18 CFR 385.2003(c).
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Under this rule, in matters set for hearing before an
Administrative Law Judge (ALJ), the ALJ should consult the participants
to determine where use of electronic service is appropriate. One
difficulty in litigated cases is that many of the documents served are
not filed with the Commission, which may complicate the issue of which
version of a document should be used for citation purposes. Moreover,
Rule 403(c) 6 requires that responses to discovery be under
oath or certified as true and accurate. The Commission believes that
the ALJs are in the best position to determine whether participants may
serve responses to discovery via electronic means, and if electronic
service is permitted, how to satisfy the oath/certification
requirement.
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\6\ 18 CFR 385.403(c).
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The Commission recognizes that some methods of electronic service,
under
[[Page 31495]]
some circumstances, may not be as reliable as other traditional means
of service. Participants under this rule will need to consider how to
verify service. Some participants' mail systems may provide
notification that a recipient has received a transmission. If that type
of system verification were not available, the transmitter could agree
to notify the recipients by telephone to let them know that they were
being served, and the recipient could assume the obligation to notify
the transmitter if the service was not received. Alternatively, the
document itself could request that the recipient notify the transmitter
that the document had been received. If the transmitter did not receive
timely notification of receipt, it would contact the intended recipient
to learn whether the document was successfully received.
The Commission has considered the potential effect of this final
rule on Year 2000 preparations and has concluded that the rule will not
have any adverse impact on Year 2000 readiness.
Due to the limited scope of this rule, the Commission is issuing it
as a final rule without a period for public comment. Under 5 U.S.C.
553(b), notice and comment procedures are unnecessary where a
rulemaking concerns only agency procedure and practice, or where the
agency finds that notice and comment is unnecessary. This rule concerns
only a matter of agency procedure. Furthermore, it merely clarifies the
existing service rule to provide electronic service as an option
expressly. Electronic service has in fact already been used in some
Commission proceedings. Finally, the rule is entirely voluntary; no
participant can be required to send or receive service electronically.
Therefore, the Commission finds notice and comment procedures to be
unnecessary.
Although the Commission invites participants to agree to use
electronic service, this rulemaking does not include any change
regarding service on or by the Office of the Secretary (OSEC); service
on OSEC must be made via the more traditional methods of service found
in Section 2010(f)(1) and (2).
To the extent that the regulations regarding a particular type of
document place additional requirements on service, those rules will
prevail over the generic rule on service. For instance, sections 4.22
and 375.314 require service or notification by certified mail; those
requirements cannot be met by electronic service at this time. No
changes to these regulations are being made at this time.
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.
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\7\ 5 U.S.C. 601-612.
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The Commission does not believe that this rule will 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 impacted by
this rule. No participants are required to use electronic service; they
will do so only voluntarily. Therefore, the Commission certifies that
this rule will not have a significant economic impact on a substantial
number of small entities.
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\8\ 5 U.S.C. 601(3) provides the definition of small business
concern.
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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.
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\9\ Order No. 486, Regulations Implementing National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs., Regulations Preambles 1986-1990 para. 30,783 (1987).
\10\ 18 CFR 380.4(a)(2)(ii).
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VI. Information Collection Statement
The following collection of information contained in this rule is
being submitted to the Office of Management and Budget (OMB) for review
under Section 3507(d) of the Paperwork Reduction Act of
1995.11 FERC identifies the information provided under 18
CFR Part 385 as FERC-601.
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\11\ 44 U.S.C. 3507(d).
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Public Reporting Burden: Estimated Annual Burden: The burden
estimates for complying with current paper service regulations are
reflected in all of the Commission's information collections which
require service by the applicant or parties to a proceeding. As part of
the Commission's ongoing efforts to streamline the regulatory process,
the Commission has consolidated the burden hours associated with the
service of documents to a proceeding under single collection of
information for easier reference.12 FERC-601 has been
designated to be that point of reference. The total burden estimates
for service under these existing information collections, based on
10,000 applications and 10,000 intervenors per year are as follows:
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\12\ Currently, the burden hours are attributed to the following
collections of information approved by OMB: 1902-0082; 1902-0083;
1902-0096; 1902-0098; 1902-0058; 1902-0115; 1902-0073; 1902-0060;
1902-0062; 1902-0153; 1902-0154; 1902-0155; 1902-0086; 1902-0089;
1902-0128.
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No. of
respondents
Data collection (applicants No. of No. of Hours per Total annual
plus documents responses response hours
intervenors)
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FERC-601 (see footnote 12)......................................... 20,000 40,000 1,000,000 0.50 500,000
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Record keeping adds an additional 20,000 hours. Therefore, the total
annual hours for Service under the current regulations, (Reporting +
record keeping) = 520,000 hours.
Based on the Commission's experience with electronic service of
documents, it is estimated that about 20% of the 1,000,000 responses
will be served electronically in the first year, 30% in the second
year, and 40% in the third year, at a burden rate of 0.25 hours per
document. This includes an allowance for the overhead of working out
electronic service agreements, maintaining Internet addresses, and
storing electronic records. The current
[[Page 31496]]
annual reporting burden for proposed FERC-601, based on current
regulations, is 520,000 hours.
The comparison of burden under the pre-existing and new regulation
for the estimated number of documents that will be served
electronically is:
Burden Hours for 3 Year Period
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First Year Second Year Third Year Total burden
Form of service reduction 20% reduction 30% Reduction 40% hours
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Current (all paper)............................. 520,000 520,000 520,000 1,560,000
New (paper or optional electronic).............. 470,000 445,000 420,000 1,335,000
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The burden reduction under the revised regulation is estimated to be
225,000 hours over three years.
Information Collection Costs: The Commission has projected the cost
savings over three years to be approximately $11,800,000. The
Commission assumes that there are no other startup costs, such as
having to acquire Internet access. The program is voluntary and
contingent on agreement of the parties, so that no one is required to
obtain Internet access if they do not have it for other business
purposes.
(The Commission makes the assumption that the average cost for a
Commission employee is comparable to the costs for industry. This
assumption equates to total number of reporting hours 2,080
hours in the work year x $109,889 (current costs for FERC employee-
salary + benefits). A true reflection of the costs to industry should
be based on market prices for the resources necessary to comply with
the information collection. Financial costs include both non-recurring
costs such as the cost of capital investments necessary to fulfill the
information collection and recurring costs such as the cost of
operating and maintaining capital investments.)
The OMB regulations require OMB to approve certain information
collection requirements imposed by agency rule.13
Accordingly, pursuant to OMB regulations, the Commission is providing
notice of this revised information collection to OMB.
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\13\ 5 CFR 1320.12.
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Title: FERC-601, Electronic Service.
Action: Proposed Data Collection.
OMB Control No. (See footnote 12).
The respondent shall not be penalized for failure to respond to
this collection of information unless the collection of information
displays a valid OMB control number.
Respondents: Business or other for profit, including small
businesses.
Frequency of Responses: On occasion.
Necessity of Information: This rule adds an optional method for
service of documents. Because it is voluntary, parties will be able to
determine for themselves the benefits costs of electronic service, in
particular the cost savings, over the traditional method of serving
documents. The Commission believes that the rule will, in many cases,
make service of documents quicker, more reliable and less expensive
than the other existing options. Internal Review: The Commission
already requires in most instances that parties filing documents in
proceedings before it serve those documents upon other interested
parties. This requirement is necessary to ensure fundamental fairness
in the Commission's proceedings. This rule does not add any
requirement, but instead adds an alternative method of a voluntary
nature to accomplish service. The Commission has assured itself, by
means of its internal review, that there is specific, objective support
for the burden estimates associated with the information collection
requirements. Parties receiving service require the documents in order
to inform themselves of arguments being made, and evidence and other
information being submitted, in Commission proceedings. The parties use
this information to form and develop their own positions and
contentions.
Interested persons may obtain information on the reporting
requirements by contacting the following: Federal Energy Regulatory
Commission, 888 First Street, NE, Washington, DC 20426, Attention:
Michael Miller, Office of the Chief Information Officer, Phone:
(202)208-1415, fax: (202)273-0873, e-mail: [email protected].
For submitting comments concerning the collection of information
and the associated burden estimate, please send your comments to the
contact listed above and to the Office of Management and Budget, Office
of Information and Regulatory Affairs, Washington, DC, 20503.
Attention: Desk Officer for the Federal Energy Regulatory Commission,
phone: (202)395-3087, fax: (202)395-7285.
VII. Congressional Review
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).
VIII. Effective Date
This regulation becomes effective July 12, 1999. The Commission has
concluded, with the concurrence of the Administrator of the Office of
Information and Regulatory Affairs of OMB, that this rule is not a
``major rule'' as defined in section 251 of the Small Business
Regulatory Enforcement Fairness Act of 1996.
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, part 385, chapter I, title 18,
Code of Federal Regulations, is hereby amended as set forth below.
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 385.2010(f) is revised to read as follows:
Sec. 385.2010 Service (Rule 2010).
* * * * *
(f) Methods of service. Service of any document must be made:
(1) By United States mail, first-class or better;
(2) By delivery in a manner that, and to a place where, the person
on whom service is required may reasonably be expected to obtain actual
and timely receipt; or
(3) By electronic means to participants who have agreed to receive
[[Page 31497]]
service via the specified electronic means.
* * * * *
[FR Doc. 99-13986 Filed 6-10-99; 8:45 am]
BILLING CODE 6717-01-P