[Federal Register Volume 70, Number 79 (Tuesday, April 26, 2005)]
[Rules and Regulations]
[Pages 21330-21332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8247]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 385 and 390

[Docket No. RM04-9-001]


Electronic Notification of Commission Issuances

Issued April 13, 2005.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule; order on rehearing of Order No. 653.

-----------------------------------------------------------------------

SUMMARY: This order on rehearing makes several minor revisions to the 
Final Rule that was adopted in Order No. 653. The Commission, in that 
order, amended its regulations to provide for electronic service of 
Commission issuances and to enhance the use of electronic service 
between parties to Commission proceedings. The revisions adopted here 
are necessary to clarify the rules governing service among parties.

DATES: Effective April 26, 2005.

FOR FURTHER INFORMATION CONTACT: Wilbur Miller, Federal Energy 
Regulatory Commission, 888 First Street, NE., Washington, DC 20426, 
(202) 502-8953.

SUPPLEMENTARY INFORMATION:

Before Commissioners: Pat Wood, III, Chairman; Nora Mead Brownell, 
Joseph T. Kelliher, and Suedeen G. Kelly.

Order No. 653-A--Order on Rehearing and Clarification

    1. The Commission issued Order No. 653 on February 10, 2005. In 
that order it adopted revisions to its regulations to, among other 
things, provide for electronic service of Commission issuances by the 
Secretary in proceedings beginning on or after March 21, 2005; modify 
its electronic registration (eRegistration) system to include e-mail 
addresses of the members of service lists; and increase the usage of 
electronic methods of service by service list members serving documents 
upon one another. Electronic Notification of Commission Issuances, 
Order No. 653, 70 FR 8720 (Feb. 23, 2005). The order required persons 
wishing to be included on the service list of proceedings that begin on 
or after March 21, 2005, to eRegister with their e-mail addresses, so 
as to facilitate electronic service of Commission issuances by the 
Secretary, as well as electronic service by participants upon each 
other.\1\ The order further amended the Commission's regulations to 
provide that, absent agreement otherwise, participants shall serve one 
another electronically in all proceedings, not just those beginning on 
or after March 21.\2\
---------------------------------------------------------------------------

    \1\ 18 CFR 385.2010(h) (2004).
    \2\ 18 CFR 385.2010(f) (2004).
---------------------------------------------------------------------------

    2. The Commission has received one rehearing request, filed by 
Spiegel & McDiarmid (Spiegel). Spiegel requests rehearing or 
clarification on several, mainly technical points, and also requests 
that the Commission stay the effectiveness of the Final Rule.
    3. One point that Spiegel raises, and with which the Commission 
agrees, is that the requirement for electronic service, absent 
agreement among participants, in proceedings begun prior to March 21 
may create difficulties in some cases. Because the requirement that 
service list members eRegister with their e-mail addresses is effective 
only for proceedings beginning on or after that date, a participant in 
a proceeding begun before that date would be required to obtain an e-
mail address for each service list member. In the interest of clarity, 
the Commission is revising Rule 2010(f) \3\ to provide for electronic 
service where the sender and recipient agree.
---------------------------------------------------------------------------

    \3\ Id.
---------------------------------------------------------------------------

    4. Spiegel also expresses concern that the revised rules would 
require electronic service between participants of protected materials. 
Spiegel correctly notes that Order No. 653 effectively substituted 
electronic for paper service with respect to protected information. In 
Spiegel's view, protection of electronic information is more difficult 
than protection of paper documents, with a higher degree of risk of 
inadvertent disclosure.
    5. In the interest of allowing participants the necessary 
flexibility to protect sensitive information, the Commission is 
revising Rule 2010(f) so that service of protected information in 
electronic form is not required. The revision provides that the serving 
participant may employ paper service where electronic service could 
jeopardize the security of sensitive information.

[[Page 21331]]

    6. Spiegel next points to the Commission's indication in Order No. 
653 that it will require standardized language in the subject line of 
service e-mails. The purpose of such a requirement would be to allow 
recipients to set their filters so as to avoid rejecting service e-
mails. Spiegel complains that this requirement was not added to the 
regulations.
    7. This was not an inadvertent omission. The Commission as a 
general matter does not place technical requirements in its electronic 
filing and service regulations. Such requirements, particularly in 
connection with information technology applications, change often. 
Revising the regulations for each such change would be cumbersome and 
impractical. It was the Commission's intention to place rules, such as 
standardized subject line language, on its Web site in a location where 
they would be readily visible to all users. Since Order No. 653 was 
issued, the Commission's staff has had extensive contact with customers 
regarding, among other things, internal forwarding rules, which 
companies and law firms often use to route important e-mails to the 
right person. Forwarding rules, in turn, have implications for 
standardized subject line language. The Commission is endeavoring now 
to find solutions that will work for its customers. Once it has done 
so, instructions will be posted at FERC Online. Placing such 
requirements in the regulations would seriously hamper the Commission's 
efforts to identify viable business practices. Spiegel's request on 
this subject therefore must be rejected.
    8. Spiegel points out that the disclaimer on the Commission's Web 
site \4\ states that the paper version of a filed document is the 
official version. For many electronically filed documents, of course, 
there is no paper version. This matter is beyond the scope of Order No. 
653. The Commission will, however, be revising the disclaimer.
---------------------------------------------------------------------------

    \4\ http://ferc.gov/disclaimers.asp.
---------------------------------------------------------------------------

    9. Spiegel next states that, although the Commission's regulations 
governing waivers of the requirement to eRegister refer to a paper 
registration form to be filed with the Secretary with a request for a 
waiver, there is no form available from the Secretary. The Commission 
is revising its regulations \5\ to remove the reference to a form. A 
person seeking a waiver need simply file a request stating its reasons, 
together with the name and address of a contact.
---------------------------------------------------------------------------

    \5\ 18 CFR 390.3(a) (2004).
---------------------------------------------------------------------------

    10. Finally, Spiegel requests clarification on modifying service 
list contacts. Spiegel's questions are not entirely clear, but it seems 
to be asking whether it can use a general service e-mail, as opposed to 
an individual's e-mail, as a service list contact. It also appears to 
be asking how to modify existing service list contact information.
    11. These are technical questions better addressed through the use 
of the phone number or e-mail address for support, available at http://www.ferc.gov/docs-filing/docs-filing.asp. The Commission does note, 
however, that a participant may employ a general e-mail address for 
document service when it adds contacts to the service list. General e-
mail addresses, however, should only be listed as ``other contacts.'' 
The ``primary contact'' should be an individual person. With respect to 
the second question, modifications to service list contacts must be 
made by the filing of a notice with the Commission, as such changes 
must be made manually by the Secretary. The other participants must 
also be notified of changes to service list contact information. The 
Commission will, however, delete the word ``written'' from Rule 
2010(c)(2),\6\ as there is no reason a request to change service list 
contact information cannot be filed electronically.
---------------------------------------------------------------------------

    \6\ 18 CFR 385.2010(c)(2) (2004).
---------------------------------------------------------------------------

    12. Given these revisions, the Commission sees no purpose in a stay 
of Order No. 653. This request is therefore denied.

Information Collection Statement

    13. Office of Management and Budget (OMB) regulations require OMB 
to approve certain information collection requirements imposed by 
agency rule.\7\ This Final Rule does not contain any information 
collection requirements and compliance with the OMB regulations is thus 
not required.
---------------------------------------------------------------------------

    \7\ 5 CFR 1320.12 (2004).
---------------------------------------------------------------------------

Environmental Analysis

    14. 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.\8\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment. Included in the exclusion are rules that are clarifying, 
corrective, or procedural or that do not substantially change the 
effect of the regulations being amended.\9\ This Final Rule is 
procedural in nature and therefore falls under this exception; 
consequently, no environmental consideration is necessary.
---------------------------------------------------------------------------

    \8\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs. Preambles 1986-1990 ] 30,783 (1987).
    \9\ 18 CFR 380.4(a)(2)(ii).
---------------------------------------------------------------------------

Regulatory Flexibility Act Certification

    15. The Regulatory Flexibility Act of 1980 (RFA) \10\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Commission is not required to make such analyses if a rule would 
not have such an effect. The Commission certifies that this Final Rule 
will not have such an impact on small entities.
---------------------------------------------------------------------------

    \10\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------

Document Availability

    16. 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 p.m. 
eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
    17. From FERC's Home Page on the Internet, this information is 
available in the Commission's document management system, 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.
    18. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours. For assistance, please contact FERC 
Online Support at 1-866-208-3676 (toll free) or 202-502-6652 (e-mail at 
[email protected]), or the Public Reference Room at 202-502-
8371, TTY 202-502-8659 (e-mail at [email protected]).

Effective Date

    19. These regulations are effective April 26, 2005.
    20. The provisions of 5 U.S.C. 801 regarding Congressional review 
of Final Rules does 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.

[[Page 21332]]

List of Subjects

18 CFR Part 385

    Administrative practice and procedure, Electric utilities, 
Penalties, Pipelines, Reporting and recordkeeping requirements.

18 CFR Part 390

    Administrative practice and procedure, Electronic filing, Reporting 
and recordkeeping requirements.

    By the Commission.
Magalie R. Salas,
Secretary.

0
In consideration of the foregoing, the Commission grants rehearing and 
clarification in part, denies the request for a stay, and amends Parts 
385 and 390, Chapter I, Title 18, Code of Federal Regulations, as 
follows.

PART 385--RULES OF PRACTICE AND PROCEDURE

0
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; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 
42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988).


0
2. Amend Sec.  385.2010 by removing the word ``written'' from paragraph 
(c)(2) and revising paragraph (f) to read as follows:


Sec.  385.2010  Service (Rule 2010).

* * * * *
    (f) Methods of service. (1) Except as provided in paragraph (g) of 
this section, service of any document in proceedings commenced prior to 
March 21, 2005, must be made by:
    (i) Electronic means where the sender and recipient agree to such 
means;
    (ii) United States mail, first class or better; or
    (iii) 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.
    (2) Except as provided in paragraph (g) of this section, service of 
any document in proceedings commenced on or after March 21, 2005, must 
be made by electronic means unless the sender and recipient agree 
otherwise or the recipient's e-mail address is unavailable from the 
official service list, except in the case of a recipient who has 
secured a waiver under the provisions of Sec.  390.3 of this chapter, 
or is exempt under the provisions of Sec.  390.4 of this chapter, or in 
the case of a protected or confidential document the security of which 
might be jeopardized by electronic service, in which case service upon 
that recipient or of that document only shall be made by:
    (i) United States mail, first class or better; or
    (ii) 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.
    (3) Service of a document by electronic means shall be made by the 
transmission of a link to that document in the Commission's eLibrary 
system or by alternate means reasonably calculated to make the document 
available to required recipients. Alternate means may include but are 
not limited to, attachment of an electronic copy of the document to an 
e-mail or transmission of a link to an Internet site containing the 
document. It is the sender's responsibility to take reasonable steps to 
ensure that the means employed for service will be within the 
technological capabilities of the recipients.
* * * * *

PART 390--ELECTRONIC REGISTRATION

0
3. The authority citation for Part 390 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; 28 U.S.C. 2461; 31 U.S.C. 9701; 42 
U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988).
0
4. Amend Sec.  390.3
0
A. By revising paragraph (a); and
0
B. By removing the phrase ``using the paper form prescribed under'' and 
adding in its place, the phrase, ``pursuant to''.
    The revision reads as follows:


Sec.  390.3  Waiver applications.

    (a) A person may satisfy the requirement of Sec. 390.1 by 
submitting a written statement showing good cause why the person is 
unable to register electronically, and including the name and address 
of the person serving as a contact. The statement must be mailed to the 
Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, or hand delivered to Room 1A at the same address.
* * * * *
[FR Doc. 05-8247 Filed 4-25-05; 8:45 am]
BILLING CODE 6717-01-P