[Federal Register Volume 85, Number 188 (Monday, September 28, 2020)]
[Rules and Regulations]
[Pages 60696-60698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18658]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 385

[Docket No. RM19-18-001]


Formal Requirements for Filings in Proceedings Before the 
Commission

AGENCY: Federal Energy Regulatory Commission.

ACTION:  Order addressing clarification and arguments raised on 
rehearing.

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SUMMARY:  In this order, the Federal Energy Regulatory Commission 
(Commission) acknowledges a request for clarification of Order No. 862 
or, in the alternative, rehearing of that Order. Order No. 862 amended 
the Commission's regulations to require that the filings and 
submissions to be

[[Page 60697]]

delivered to the Commission, other than by the United States Postal 
Service, are instead to be sent to the Commission's off-site security 
screening facility. In this order, the Commission grants clarification 
and, therefore, does not address the arguments raised on rehearing.

DATES: The order addressing clarification is effective September 28, 
2020.

FOR FURTHER INFORMATION CONTACT: Christopher Cook, Office of the 
Secretary, 888 First Street NE, Washington, DC 20426, (202) 502-8102, 
[email protected]. Mark Hershfield, Office of the General 
Counsel, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-8597, [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    1. In Order No. 862, the Commission amended its regulations to 
require that any filings and submissions to be delivered to the 
Commission, other than by the United States Postal Service (USPS), 
should be sent to the Commission's off-site security screening 
facility.\1\ The regulations still permitted USPS mail to be sent 
directly to the Commission's headquarters. Spiegel & McDiarmid LLP 
(Spiegel) requested clarification, or, in the alternative, rehearing in 
order ``to ensure that a legally valid back-up means of timely filing 
will remain available, in the event the Commission's electronic filing 
(``eFiling'') system experiences an unexpected malfunction on the day a 
filing is due.'' \2\ For the reasons discussed below, we grant 
clarification and, therefore, do not address the arguments raised on 
rehearing.
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    \1\ Formal Requirements for Filings in Proceedings Before the 
Commission, Order No. 862, 84 FR 46438 (Sept. 4, 2019), 168 FERC ] 
61,120 (2019).
    \2\ Spiegel Request at 1.
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    2. Pursuant to Allegheny Defense Project v. FERC,\3\ the rehearing 
request filed in this proceeding may be deemed denied by operation of 
law. As permitted by section 313(a) of the Federal Power Act,\4\ and 
section 19(a) of the Natural Gas Act,\5\ however, we are modifying 
Order No. 862 and continue to reach the same result in this proceeding, 
as discussed below.\6\
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    \3\ Allegheny Def. Project v. FERC, 964 F.3d 1 (D.C. Cir. 2020) 
(en banc).
    \4\ 16 U.S.C. 825l(a) (``Until the record in a proceeding shall 
have been filed in a court of appeals, as provided in subsection 
(b), the Commission may at any time, upon reasonable notice and in 
such manner as it shall deem proper, modify or set aside, in whole 
or in part, any finding or order made or issued by it under the 
provisions of this chapter.'').
    \5\ 15 U.S.C. 717r(a).
    \6\ Allegheny Def. Project, slip op. at 30. The Commission is 
not changing the outcome of Order No. 862. See Smith Lake 
Improvement & Stakeholders Ass'n v. FERC, 809 F.3d 55, 56-57 (D.C. 
Cir. 2015).
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II. Discussion

A. Order No. 862

    3. The Commission's prior regulations provided that filers should 
send hard-copy submissions directly to the Commission's principal 
office, which is located at 888 First Street NE, Washington, DC 20426. 
In Order No. 862, the Commission determined that sending hard-copy 
(including hand-delivered) submissions, other than by USPS, to an off-
site facility for security screening and processing, prior to being 
delivered to the Commission's principal office, would better protect 
the safety of the Commission, its employees, and the public. The 
revised regulations still permitted USPS mail to be sent directly to 
the Commission's headquarters.\7\ Deliveries may be made to the off-
site facility in-person (by the filing entity or its designee) during 
the hours of 7:00 a.m. to 3:30 p.m. The Commission explained that 
revising the Commission's procedures to have hardcopy/hand-delivered 
submissions delivered to an off-site facility for security screening, 
before delivery to the Commission, was consistent with government-wide 
guidance.\8\
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    \7\ USPS has existing ``security, screening, and control 
processes'' that comply with U.S. Department of Homeland Security's 
best practices. See Alex Dobuzinskis, Screening for Poisons, 
Explosives in Mail a Daily Reality After U.S. Threats, Reuters (Oct. 
3, 2018) (USPS ``has developed a comprehensive approach to 
protecting the mail system by utilizing a targeted strategy of 
specialized technology, screening protocols and employee 
training.'').
    \8\ See U.S. Department of Homeland Security, Best Practices for 
Managing Mail Screening and Handling Processes: A Guide for the 
Public and Private Sectors, at 17 (Sept. 2012) https://www.cisa.gov/sites/default/files/publications/isc-mail-handling-screening-nonfouo-sept-2012-508.pdf.
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    4. Moreover, the Commission determined that Order No. 862 would not 
affect the public's ability to make timely filings. The Commission 
reiterated that the public is strongly encouraged to submit filings and 
submissions electronically, through the Commission's eFiling 
application, at https://www.ferc.gov/.\9\ The Commission also explained 
that the off-site facility would log all deliveries when received and 
would provide the Commission with the log so that the documents may be 
stamped and recorded by the Commission as received on that date.
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    \9\ See 168 FERC ] 61,120 at P 6 (citing 18 CFR 
385.2001(a)(1)(iii)); see also Filing Via the internet, Order No. 
703, 72 FR 65659, (Nov. 23, 2007), 121 FERC ] 61,171 (2007).
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B. Request for Clarification or, in the Alternative, Rehearing

    5. Spiegel seeks clarification as to whether the Commission will 
establish ``a legally valid back-up to electronic filing . . . in the 
event the eFiling system experiences an unexpected malfunction on the 
day a filing is due.'' \10\ Spiegel offered several options to ensure 
that the Commission has in place a legally valid back-up to its eFiling 
system. First, Spiegel recommends that the Commission consider 
clarifying that, if the eFiling system is malfunctioning during certain 
hours, the filing deadline will roll over to the next available 
business day.\11\ Second, Spiegel proposes that the Commission could 
formalize its email system to accept filings when they are unable to be 
filed through normal eFiling. Third, Spiegel suggests combining its 
first two recommendations, which it considers to be its principal 
recommendation. Finally, Spiegel states that, if these alternatives are 
not considered legally and practically feasible, the Commission should 
allow hand-deliveries to be made at Commission headquarters and logged 
in before being sent to the off-site facility for screening.\12\ To 
limit security risks, Spiegel suggests that the option of hand-
deliveries could be limited to known entities.
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    \10\ Spiegel Request at 9 (citing 18 CFR 385.2007(a)(2), and 
Cities of Batavia v. FERC, 672 F.2d 64, 72-73 (D.C. Cir. 1982)).
    \11\ Id. at 7.
    \12\ See id. at 7-8.
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    6. As an alternative to the Commission providing clarification, 
Spiegel requests rehearing, asserting that the Commission erred, in 
Order No. 862, in three aspects. First, Spiegel argues that the 
Commission erred in determining that the final rule would not ``affect 
the public's ability to make timely filings.'' Second, Spiegel states 
that the Commission did not adequately consider the implication of 
changing the filing deadline for hand-deliveries from 5:00 p.m. ET to 
3:30 p.m. ET. Finally, Spiegel notes that the Commission erred in 
concluding that the final rule was the best option for balancing 
physical security against the ability of parties to make timely 
filings.\13\
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    \13\ Id. at 3-4.
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C. Commission Determination

    7. In response to Spiegel's request for clarification, we clarify 
the practice that the Commission currently uses (and will continue to 
use) if a filer experiences a Commission eFiling system malfunction

[[Page 60698]]

while attempting to timely submit a filing. As Spiegel acknowledges, 
electronic filing will ``often suffice.'' \14\ In fact, based on the 
Commission's experience, eFiling system malfunctions are infrequent and 
typically resolved on the day of their occurrence. However, as 
explained below, in the rare instance where a Commission eFiling system 
malfunction prevents a timely filing, the filer may continue to use the 
Commission's established practice of contacting the Commission's Office 
of the Secretary (OSEC) through [email protected] to report 
the eFiling system malfunction. We outline this practice in detail 
below to provide clarity.
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    \14\ Id. at 5.
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    8. Specifically, should an entity attempt to make a filing during a 
Commission eFiling system malfunction, the filer shall email OSEC at 
[email protected] to notify staff of the malfunction. That 
email shall: (1) Summarize the problem; (2) attach, if feasible, the 
public version of the filing solely to indicate proof of the filer's 
attempt to submit a filing; \15\ and (3) provide any other evidence of 
timely attempts to file, such as screenshots of error messages. OSEC 
staff will verify the existence of the reported malfunction and the 
filer's attempt to make a timely submission. OSEC will also acknowledge 
and respond to the filer's email.
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    \15\ Any information that the filer believes is subject to 
privileged treatment under the Commission's regulations shall be 
redacted from the version emailed to OSEC. If the file is too large 
to send via email the filer should identify that issue in its email 
to OSEC through [email protected].
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    9. Importantly, however, a filer's email informing OSEC of an 
eFiling malfunction does not itself constitute a formal submission of 
the filing and will not be processed as such. If the eFiling system 
error is not corrected in a manner that permits filing by 5:00 p.m. on 
the date the filing was attempted, the filer must also comply with the 
following steps. In addition to notifying OSEC by email, the filer 
must, at the earliest possible time on the next business day, either: 
(1) Formally submit the filing electronically through the eFiling 
system; or (2) submit the filing by hard copy to the off-site screening 
facility. Of the foregoing two options, the filer shall choose the most 
expedient option.
    10. In sum, we note that, should an entity attempt to make a filing 
during a Commission eFiling system malfunction, in order for a filing 
to be deemed timely made, the filer must: (i) Notify OSEC by email 
containing the evidence of a timely attempt to file as outlined in 
paragraph 8 above; and (ii) complete the filing as set forth in 
paragraph 9 above. If the filer meets each of the requirements set 
forth herein, the filing will be considered timely filed by the 
Commission.
    11. Given that the process outlined above addresses Spiegel's 
principal concern, we do not address Spiegel's proposed approaches to 
ensuring the timely submission of filings in the event of an eFiling 
system malfunction. For the same reason, we do not address Spiegel's 
alternative request for rehearing.

III. Document Availability

    12. 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). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room due to the President's March 13, 2020 
proclamation declaring a National Emergency concerning the Novel 
Coronavirus Disease (COVID-19).
    13. 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.
    14. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at 202-502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].
    15. The Commission orders:
    In response to Spiegel's request for clarification or, in the 
alternative, request for rehearing, Order No. 862 is hereby modified 
and the result sustained, as discussed in the body of this order.

    By the Commission.

    Issued: August 18, 2020.
Kimberly D. Bose,
Secretary.
[FR Doc. 2020-18658 Filed 9-25-20; 8:45 am]
BILLING CODE 6717-01-P