Filing of Privileged Materials and Answers to Motions, 80838-80846 [2011-32744]

Agencies

• DEPARTMENT OF ENERGY
• Federal Energy Regulatory Commission

[Federal Register Volume 76, Number 248 (Tuesday, December 27, 2011)]
[Proposed Rules]
[Pages 80838-80846]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32744]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 4, 5, 16, 33, 35, 157, 348, 375, 380, 385 and 388

[Docket No. RM12-2-000]


Filing of Privileged Materials and Answers to Motions

AGENCY: Federal Energy Regulatory Commission, Energy.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The Commission proposes changes in its rules and regulations 
relating to the filing of privileged material, in keeping with the 
Commission's efforts to comply with the Paperwork Reduction Act, the 
Government Paperwork Elimination Act, and the E-Government Act of 2002. 
First, the Commission will establish for filing purposes two categories 
of privileged material: Privileged material and Critical Energy 
Infrastructure Information. This revision will expand the ability to 
file electronically by permitting electronic filing of materials 
subject to Administrative Law Judge protective orders. Second, the 
Commission proposes to revise its regulations to provide a single set 
of uniform procedures for filing privileged materials. This effort is 
being undertaken as part of the Commission's effort to reassess and 
streamline its regulations to ensure that they are efficient, effective 
and up to date.
    Also, the Commission proposes to revise Rule 213(d) of its Rules of 
Practice and Procedure, which establishes the timeline for filing 
answers to motions, to clarify that the standard fifteen day reply time 
will not apply to motions requesting an extension of time or a 
shortened time period for action. Instead, the Commission proposes to 
set the time for responding to such motions at five days, unless 
another time period is established by notice based on the 
circumstances.

DATES: Comments are due February 27, 2012.

ADDRESSES: Comments, identified by docket number, may be filed in the 
following ways:
     Electronic Filing through https://www.ferc.gov. Documents 
created electronically using word processing software should be filed 
in native applications or print-to-PDF format and not in a scanned 
format.
     Mail/Hand Delivery: Those unable to file electronically 
may mail or hand-deliver comments to: Federal Energy Regulatory 
Commission, Secretary of the Commission, 888 First Street NE., 
Washington, DC 20426.
     Instructions: For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
Comment Procedures Section of this document.


FOR FURTHER INFORMATION CONTACT:
Christopher Cook (Technology/Procedural Information), Office of the 
Executive Director, Federal Energy Regulatory Commission, 888 First 
Street NE., Washington, DC 20426, Telephone: (202) 502-8102.
Richard M. Wartchow (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE., Washington, 
DC 20426, Telephone: (202) 502-8744.

SUPPLEMENTARY INFORMATION: 
Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, 
John R. Norris, and Cheryl A. LaFleur.

Notice of Proposed Rulemaking

(Issued December 16, 2011.)
    1. The Commission proposes changes in its rules and regulations 
relating to the filing of privileged material,\1\ in keeping with the 
Commission's efforts to comply with the Paperwork Reduction Act,\2\ the 
Government Paperwork Elimination Act \3\ and E-Government Act of 
2002.\4\ First, the Commission proposes to establish only two 
categories for filing privileged material: Privileged and Critical 
Energy Infrastructure Information (CEII). This change will expand the 
ability to file electronically by permitting electronic filing of 
material subject to protective orders in proceedings set for hearing 
before Administrative Law Judges (ALJ).
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    \1\ The revised regulations explain that, for the purposes of 
the Commission's filing requirements, information subject to an 
outstanding claim of exemption from disclosure under the Freedom of 
Information Act (FOIA) will be referred to as privileged. See 
proposed section 388.112(a)(1). Thus, material that is filed 
pursuant to any claim that it is privileged, confidential, 
commercially sensitive or Critical Energy Infrastructure Information 
(CEII), or otherwise constitutes material for which an exemption may 
be asserted under the Freedom of Information Act will be referred to 
as privileged. 5 U.S.C. 552; 18 CFR 388.107. One distinction outside 
of the proposed section 388.112 context between materials claimed to 
be privileged and those claimed to be CEII is that materials 
designated privileged may be accessed in accordance with 18 CFR 
388.108, and those designated CEII in accordance with 18 CFR 
388.113.
    \2\ Public Law 104-13, 109 Stat. 163 (1995).
    \3\ Title XVII, Public Law 105-277, 112 Stat. 2681 (1998).
    \4\ Public Law 107-347, 116 Stat. 2899 (2002).
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    2. Second, the Commission proposes to revise section 388.112 of its

[[Page 80839]]

regulations to provide a single set of uniform procedures for filing 
materials for which privilege is claimed in initial filings before the 
Commission. Under this revision, filers claiming privileged treatment 
will be required to include a protective agreement along with the 
filing and must provide the material for which privilege is claimed to 
intervening parties who sign the agreement. This revision will expedite 
the process by which privileged material is exchanged in administrative 
proceedings and will help facilitate the Commission's ability to review 
and process such filings. This effort is being undertaken as part of 
the Commission's effort to reassess and streamline its regulations to 
ensure that they are efficient, effective and up to date.\5\
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    \5\ See Chairman J. Wellinghoff's July 11, 2011 News Release, 
``FERC to Institute Public Review of Regulations.''
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    3. Third, the Commission proposes conforming revisions to several 
sections of its regulations to ensure that privileged materials are 
treated consistently and to bring the regulations up to date. These 
proposals will remove a significant paper filing requirement in the 
regulations (subject to the exceptions discussed below) and permit 
electronic filing of privileged documents in uniform formats using 
software that is readily available and easy to use.\6\
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    \6\ See Rule 2004, 18 CFR 385.2004, providing that filings 
conform to the requirements posted on the Commission's web site at 
https://www.ferc.gov.
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    4. Also, the Commission proposes to revise Rule 213(d) of its Rules 
of Practice and Procedure, which establishes the timeline for filing 
answers to motions, to clarify that the standard fifteen day reply time 
will not apply to motions requesting an extension of time for a person 
to take action (for which the existing time for compliance may fall 
fifteen days or fewer from the date of filing) or a shortened time 
period for action.\7\ Instead, the time for responding to such motions 
will be set at five days, unless the Commission establishes another 
time period by notice based on the circumstances.
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    \7\ 18 CFR 385.213(d) (providing for answers to motions to be 
filed in 15 days unless otherwise ordered).
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    5. The Commission seeks comment on these proposals, which are 
described more fully below.\8\
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    \8\ In addition to the proposed amendments provided following 
this preamble, an informational comparison has been prepared showing 
proposed changes to the current regulations in redline and strikeout 
format. This informational comparison will be provided separately in 
this docket.
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I. Background

    6. In 2000, the Commission first permitted filers to use the 
Internet for submission of documents to the Commission.\9\ Such 
submissions were limited to categories of documents specified by the 
Secretary of the Commission (Secretary), with the intention of 
gradually expanding the range of eligible documents.\10\ In 2007, the 
Commission implemented eFiling 7.0 which permitted a much broader range 
of documents to be submitted through the eFiling interface.\11\ In 
2008, the Commission, in collaboration with the wholesale electric and 
gas quadrants of the North American Energy Standards Board and 
representatives from the Association of Oil Pipelines, implemented a 
set of standards to be used by companies in electronically filing 
tariff and tariff related documents at the Commission.\12\ Under the 
Commission's regulations, only ``qualified documents'' may be filed via 
the Internet, and the Secretary is authorized to specify which 
documents are qualified.\13\ A list of qualified documents is published 
on the Commission's web site.\14\ The Secretary also is authorized to 
issue filing instructions.\15\
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    \9\ Electronic Filing of Documents, Order No. 619, 65 FR 57088 
(Sept. 21, 2000), FERC Stats. & Regs. ] 31,107 (2000).
    \10\ See Rule 2003(c) of the Commission's Rules of Practice and 
Procedure, 18 CFR 385.2003(c).
    \11\ Filing Via the Internet, Order No. 703, FERC Stats. & Regs. 
] 31,259 (2007) (amending Rule 2003(c)).
    \12\ Electronic Tariff Filings, Order No. 714, FERC Stats. & 
Regs. ] 31,276 (2008).
    \13\ Rule 2003(c), 18 CFR 385.2003(c).
    \14\ See https://www.ferc.gov/docs-filing/efiling/docs-efiled.asp.
    \15\ Rule 2003(c)(1)(ii), 18 CFR 385.2003(c)(1)(ii); see https://www.ferc.gov/docs-filing/efiling/user-guide.asp.
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    7. The eFiling system plays an important role in the Commission's 
efforts to comply with the Government Paperwork Elimination Act, which 
requires that agencies provide the option to submit information 
electronically, when practicable, as a substitute for paper.\16\ The 
Commission's eRegistration system for electronic registration is 
required for users of its eFiling system and other specified 
activities.\17\ Filing via the Internet is optional for eligible 
documents.\18\ The eFiling system now is receiving a substantial 
majority of all documents filed at the Commission. The system is 
accessible through the Commission's web site at https://www.ferc.gov/docs-filing/efiling.asp.
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    \16\ Public Law 105-277, Sec. 1702-1704 (1998); see OMB Circular 
A-130 Paragraph 8.a.1(k).
    \17\ 18 CFR 390.1 and 18 CFR 390.2.
    \18\ Rule 2001(a) of the Commission's Rules of Practice and 
Procedure, 18 CFR 385.2001(a).
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    8. Currently, the Commission accepts through electronic filing all 
documents, including privileged and CEII material,\19\ except for 
documents submitted pursuant to an ALJ's protective order and some 
forms.\20\ The Commission's current procedures for submitting materials 
subject to ALJ protective orders require filers to submit an original 
copy of the document in hard copy or on electronic media, along with 
the requisite number of copies, pursuant to section 388.112 of the 
Commission's regulations. While the Commission permits electronic 
filing of documents subject to a claim of privilege not subject to an 
ALJ protective order, the Commission currently does not have a standard 
set of procedures for submitting such documents.
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    \19\ See Critical Energy Infrastructure Information, Order No. 
630, FERC Stats. & Regs. ] 31,140, order on reh'g, Order No. 630-A, 
FERC Stats. & Regs. ] 31,147, at P 65 (2003) (providing that 
privileged and CEII material may be filed under 18 CFR 388.112 on 
electronic media--including compact discs, computer diskettes, and 
tapes--and noting that the Commission would accept non-public 
documents through its electronic filing process at some point in the 
future).
    \20\ Order No. 703, FERC Stats. & Regs. ] 31,259 at P 9. The 
following are submitted through eForms: FERC Form No. 1, FERC Form 
No. 2, FERC Form No. 2-A, FERC Form No. 3-Q, FERC Form No. 6, FERC 
Form No. 6-Q, FERC Form No. 60, FERC Form No. 714, and Electric 
Quarterly Reports. FERC Form 1-F is currently not included in 
eForms.
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    9. The Commission's complaint and notice regulations (sections 
385.206 and 385.213) also contain detailed requirements for submission 
of privileged materials. Under these regulations, a party filing a 
complaint or an answer with privileged and/or confidential material is 
required to submit a request for privileged treatment of documents, a 
public redacted document, a privileged unredacted document, and a 
proposed form of protective agreement.\21\ The filer must serve the 
public, redacted copy on appropriate parties and other entities 
required to be served and must provide a copy of the non-public, 
unredacted material to any participant or entity whose name is on the 
official service list (compiled by the Secretary) and who has signed 
the protective agreement.
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    \21\ See Astoria Generating Co., L.P. v. New York Independent 
System Operator, Inc., 136 FERC ] 61,155, at P 25 (2011) (Astoria). 
The Commission's filing requirements for CEII and privileged 
material are provided in the ``Submission Guidelines'' available via 
the eFiling link on the Commission's web site at https://www.ferc.gov.
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    10. In recent years, the Commission has been receiving a larger 
number of requests for privileged treatment of documents not associated 
with

[[Page 80840]]

complaints or answers.\22\ The request for privileged treatment has in 
some cases delayed the ability of the Commission to process such 
filings because the Commission was required to issue special orders or 
notices to ensure that parties could obtain access to the privileged 
material they needed in order to be able to participate in the 
proceeding.\23\ Particularly, in cases involving statutory deadlines, 
such delays affect the ability of parties to submit timely, well 
informed comments, as well as the Commission's ability to process those 
comments.
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    \22\ See ANR Pipeline Co., 129 FERC ] 61,080 (2009); PPL 
Montana, LLC, 113 FERC ] 61,231 (2005).
    \23\ See West Deptford Energy, LLC, 134 FERC ] 61,189 (2011) 
(denying request to limit parties' rights to see documents). See 
also PPL Montana, LLC, 113 FERC ] 61,231 (2005); PJM 
Interconnection, L.L.C., Notice of Filing, Docket No. ER05-10-000 
(May 6, 2005), https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=10542333; PJM Interconnection, L.L.C., Notice of 
Filing, Docket No. ER04-539-002 (April 30, 2004), https://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=10131785.
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II. Discussion

A. Proposed Regulations for Filing Privileged Materials

    11. The Commission is proposing to revise its regulations to (1) 
provide two categories of privileged material for filing purposes, 
namely categories for privileged and CEII materials, (2) set up a 
uniform process (based upon the current complaint/answer process in 
Rules 206 and 213) \24\ for filing and accessing privileged materials 
in most proceedings with a right to intervene, and (3) consolidate the 
Commission's regulations for submitting privileged materials in 
proposed section 388.112.
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    \24\ 18 CFR 385.206, -.213.
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    12. Under current regulations and procedures, material filed 
pursuant to protective orders in hearings before Administrative Law 
Judges must be filed on paper.\25\ The Commission is proposing to 
eliminate the protected category of material and establish only two 
categories of non-public material: privileged or CEII. This revision 
will permit material filed pursuant to ALJ protective orders to be 
treated the same as any other privileged information; that is, this 
material should be filed as either privileged or CEII material. This 
proposal is in keeping with this Commission's intent to continue 
decreasing our reliance on paper documents, as far as practicable, and 
to continue to upgrade eFiling capabilities in furtherance of the 
Commission's responsibilities under the Government Paperwork 
Elimination Act.\26\
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    \25\ Order No. 703, FERC Stats. & Regs. ] 31,259 at P 2, 9, 16; 
Federal Energy Regulatory Commission eFiling v7.0 User Guide, at 2 
(https://www.ferc.gov/docs-filing/efiling-user-guide.pdf).
    \26\ Public Law 105-277, Sec.  1704, 112 Stat. 2681, 2681-750 
(1998).
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    13. The Commission also proposes to revise section 388.112 of its 
regulations to establish standardized procedures for handling the 
filing of privileged materials in initial filings.\27\ In particular, 
for complaints and proceedings where a right to intervention exists, 
the Commission is proposing to utilize the same process for filing 
privileged information that is currently found in the Commission's 
complaint and answer rules (sections 385.206 and 385.213).\28\ The 
complaint process is the model for the procedures under proposed 
section 388.112, which, upon adoption, may be used to file and access 
privileged and CEII material in all types of proceedings where a right 
to intervene exists. Under this process (subject to the exceptions 
discussed below), the participant requesting privileged or CEII 
treatment will submit a public request for privileged or CEII treatment 
of documents, a public document with privileged and CEII information 
redacted, a privileged unredacted document, and a proposed form of 
protective agreement. The filer must serve the public, redacted copy on 
appropriate persons and must provide a copy of the unredacted document 
to participants and persons who have filed a notice of intervention or 
motion to intervene and signed the protective agreement.\29\
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    \27\ The Commission is not changing procedures or provisions 
that apply to submission of documents pursuant to an investigation 
conducted under Part 1b of the Commission's regulations. 18 CFR part 
1b; see also 18 CFR 385.101(b)(1).
    \28\ For rulemaking proceedings, interested persons may continue 
to seek privileged or CEII information through the Commission's 
existing procedures in 18 CFR 388.108 and 18 CFR 388.113.
    \29\ See proposed section 388.112(b)(2) (ii).
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    14. Filers that have specific reasons for not providing privileged 
or CEII material to a person or persons may file with the Commission an 
objection with a justification for not providing such information. In 
statutory proceedings with statutory deadlines, such as rate filings 
under section 4 of the Natural Gas Act or section 205 of the Federal 
Power Act, filers that choose not to provide privileged or CEII 
information to all or certain persons should be aware that a failure to 
provide the privileged information pursuant to a protective agreement 
may result in a suspension of the filing, rejection or other delays in 
the processing of the application.\30\
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    \30\ See the Commission's Guidelines for Filing Critical Energy 
Infrastructure Information, noting the potential for rejection of 
applications in which information is mislabeled as CEII.
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    15. We discuss below the specific changes to section 388.112, as 
well as the procedures that will apply to requests for privileged or 
CEII treatment. The Commission seeks comment on its proposal, as 
described more fully below.
1. Proposed Revisions to Section 388.112
    16. In this rulemaking, the Commission proposes to revise and 
expand section 388.112 of its regulations, which governs requests for 
privileged treatment, to establish a uniform set of procedures to file 
all requests for privileged and CEII treatment, privileged materials 
and accompanying public versions of documents. In addition, the 
proposed revisions incorporate procedures for releasing privileged 
information to participants to Commission proceedings, modeled after 
the filing procedures contained in the Commission's existing complaint 
procedures.\31\ The proposed revisions are as follows:
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    \31\ 18 CFR 385.206(e).
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    a. Proposed section 388.112(a)(1) clarifies that the term 
privileged materials refers to information subject to an outstanding 
claim of exemption from disclosure under FOIA, including CEII.\32\ The 
proposed changes retain the disclaimer that by treating the documents 
for which a privilege is claimed as nonpublic, the Commission is not 
making a determination on the merits as to any claim of privileged or 
CEII status.\33\
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    \32\ See also 18 CFR 388.107(g); 18 CFR 388.113 (defining CEII 
materials as exempt from mandatory disclosure under FOIA, providing 
that CEII be filed under section 388.112(b), and establishing 
alternative procedures for making CEII available).
    \33\ See proposed section 388.112(c)(i).
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    b. The procedures for filing privileged and CEII material in 
proposed section 388.112(b) retain the requirement that a filer include 
a justification for privileged treatment in its filing, following the 
procedures posted on the Commission's Web site at https://www.ferc.gov.\34\
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    \34\ See the ``Submission Guidelines'' on the eFiling link at 
https://www.ferc.gov.
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    c. Following the model in the Commission's complaint rule, proposed 
section 388.112(b)(1) requires a person requesting privileged or CEII 
treatment to designate the material as privileged or CEII in an 
electronic filing, or clearly indicate a request for privileged 
treatment on a paper filing, using privilege and CEII headings.
    d. When requesting privileged treatment of such materials, the 
proposed regulations require a person filing materials in a complaint

[[Page 80841]]

proceeding or other proceeding in which a right to intervene exists to 
include a public, redacted copy of the filing and a proposed form of 
protective agreement \35\ to be filed with public status (as denoted in 
eLibrary). The public version should be prepared with the privileged 
information redacted to the extent practicable. If a document or filing 
contains both public and privileged material, the Commission expects 
filers to prepare and file a public version in which the privileged 
material has been removed or redacted thereby making the non-privileged 
portion of a document available for use by the Commission and 
participants in the proceeding.\36\
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    \35\ Proposed section 388.112(b)(2). We intend that the proposed 
protective agreement will be self implementing and not require 
action or approval by the Commission. That is, following the 
proposed procedures discussed below, once a person signs the 
proposed protective agreement and returns it to the party submitting 
privileged material, including CEII, the submitter is expected to 
provide the material promptly to a requester, consistent with 
proposed section 388.112(b)(2). The Commission's Model Protective 
Order may be used as a guide for protective agreements, as available 
at https://www.ferc.gov/legal/admin-lit/model-protective-order.doc. 
See also Market-Based Rates for Wholesale Sales of Electric Energy, 
Capacity and Ancillary Services by Public Utilities, Order No. 697, 
FERC Stats. & Regs. ] 31,252, at P 393 (2007).
    \36\ Astoria, 136 FERC ] 61,155 at P 25 (requiring the 
submission of a public redacted copy of documents that contain both 
privileged and public information).
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    e. The proposed regulations provide that a filer must serve the 
public, redacted version of the filing on the appropriate persons, that 
is, those required by Commission rule or order, or by law.\37\ For 
materials filed in a complaint proceeding or any proceeding for which a 
right of intervention exists, the filer must serve the public, redacted 
materials and proposed form of protective agreement on the entities 
required to be served.\38\
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    \37\ See proposed section 388.112(b)(2)(ii).
    \38\ E.g., persons to be served under Rule 206(c), 18 CFR 
385.206(c) (complaints) or Rule 213, 18 CFR 385.213(c)(5) (answers), 
or otherwise as appropriate.
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    f. The proposed regulations provide that persons may obtain access 
to the privileged materials by making a written request to the filer 
for a copy of the complete unredacted document, including an executed 
copy of the protective agreement and a statement of its right to party 
or participant status or a copy of its intervention.\39\ The filer is 
obligated to provide a complete, unredacted copy of the document to a 
person submitting such a request within 5 days after receipt or file an 
objection with the Commission.\40\
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    \39\ Trial Staff, as identified in 18 CFR 385.102(b)(2), should 
be treated similarly to other persons making a request.
    \40\ Proposed section 388.112(b)(2)(iv). The Commission uses the 
term ``privileged'' to refer to items that are claimed to be exempt 
from disclosure under FOIA. Use of this term is not intended to 
detract from any person's right to assert a common law privilege, 
e.g., attorney-client or attorney work product privilege.
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    g. The proposed regulations establish exceptions for landowner 
lists, certain cultural resources and liquefied natural gas facility 
(LNG) information, and proceedings set for hearing or settlement 
procedures in accordance with the Commission's Rules of Practice and 
Procedure. Thus, filers are not automatically required to provide 
intervenors with such material.\41\ The proposed regulations retain 
procedures to address practical and confidentiality concerns with the 
submission of these materials, due to difficulty in copying and 
manipulating the material (i.e., maps or spreadsheets presenting 
voluminous data). To that end, the proposed regulations retain 
provisions permitting the Commission to request full size maps in 
licensing applications under section 4.32(d) of its rules and 
regulations.\42\
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    \41\ See proposed section 388.112(b)(2)(vi); see also Columbia 
Gas Transmission Corp., 128 FERC ] 61,050, at P 32 (2009) (finding 
insufficient need to disclose storage field maps and landowner 
lists).
    \42\ 18 CFR 4.32(d).
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    h. Landowner lists, cultural resource information required in 
sections 380.12(f) and 380.16(f), LNG information filed under sections 
380.12(m) and (o), forms filed with the Commission and other documents 
not covered under proposed section 388.112 disclosure provisions may be 
sought pursuant to a FOIA or CEII request, in accordance with section 
388.108 or section 388.113, as applicable.
    i. Under proposed section 388.112(b)(2)(v), a participant's access 
to privileged material submitted in a trial-type hearing or for 
settlement purposes continues to be governed by the presiding 
official's protective order, according to policies established by the 
Commission's Office of Administrative Law Judges.\43\
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    \43\ See Part 385 of the Commission's Rules of Practice and 
Procedure, Subpart D, 18 CFR 385.401, et seq. (hearing procedures), 
and 18 CFR 385.602, et seq.
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    j. For convenience, other regulations containing procedures for 
filing privileged materials will be revised to reference section 
388.112 as the regulation governing all filings containing privileged 
or CEII material.\44\ Consequently, we propose to remove duplicate 
provisions for filing privileged materials, and consolidate provisions 
relating to submittal of and access to privileged material in section 
388.112.\45\ Conforming changes are proposed throughout the 
Commission's regulations.
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    \44\ Changes to consolidate and supersede current procedures for 
filing privileged material are proposed to 18 CFR 33.8(a) and 33.9 
(merger procedures), 18 CFR 35.37(f) (market based rate 
applications), 348.2(a) (oil pipeline market power application 
procedures), 380.12(f)(4) and 380.16(f)(4) (environmental reports 
for Natural Gas Act and Federal Power Act section 216 applications), 
Rule 206, 18 CFR 385.206(e) (complaint procedures), and Rule 213, 18 
CFR 385.213(c)(5) (answers). In addition, changes for clarity and to 
reflect the consolidation of privileged filing procedures are 
proposed to 18 CFR 4.39(e), 5.29(c), 16.8(g), 157.21(h), 
157.34(d)(4), and 385.606(f) and (j), and changes are proposed to 18 
CFR 388.113(d) (1) and (2) to reference procedures in paragraph 
(d)(4).
    \45\ In certain instances, we have kept the reference as a guide 
to practitioners in a particular Commission program.
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2. eFiling Procedures
    17. Under the eFiling procedures, when a user accesses the File 
Upload screen, the user will see tabs for three submission categories: 
Public, Privileged, and CEII. The current eFiling procedures are not 
being changed and are consistent with the proposed revisions for filing 
privileged materials.\46\ Filers can upload multiple files under each 
security class or they may upload .zip files containing numerous files 
if the files all have the same security class.\47\ If a user submits 
both a redacted and a privileged form of a document, the latter should 
be submitted as privileged and the former as public. The form of 
protective agreement should be included with the public version.
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    \46\ See Order No. 703, FERC Stats. & Regs. ] 31,259 at P 12-14 
(discussing procedures).
    \47\ A .zip file cannot contain other embedded .zip files or 
.exe files. For ease of access, all components of a document 
(public, privileged, and/or CEII) are linked and made available 
under the Document Components tab in eLibrary, with each component 
assigned an accession number and appropriate security designation.
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    18. In some instances, a document may contain portions that are 
privileged and other portions that constitute CEII. In such an 
instance, the public, privileged, and the CEII portions should be 
separated. The CEII portions would be filed as CEII and the privileged 
portions would be filed separately and designated as privileged.
    19. Parties retain the ability to file privileged or CEII material 
in paper-only format (with the exception of materials subject to our 
electronic tariff filing requirements), unless otherwise required.\48\ 
With the exception of filings

[[Page 80842]]

by regulated entities subject to our eTariff requirements,\49\ filers 
who do not wish to use eFiling need not do so. Filers are not permitted 
to split their filings into an electronic component and a paper 
component, as the Commission cannot assume the responsibility for 
merging paper and electronic components of a single filing.
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    \48\ Filers submitting paper filings should conform their 
filings to the requirements for paper filing posted on the 
Commission's Web site, https://www.ferc.gov, pursuant to Rule 2004. 
18 CFR 385.2004.
    \49\ Under the Commission eTariff procedures, every attachment 
must have an Attachment Security Level code for three submission 
categories: Public, Privileged, and CEII. The current Attachment 
Security Level codes are not being changed and are consistent with 
the proposed revisions for filing privileged materials. 
Implementation Guide for Electronic Filing of Parts 35, 154, 284, 
300, and 341 Tariff Filings, found on the Commission's Web site: 
https://www.ferc.gov/docsfiling/etariff/implementation-guide.pdf.
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3. Miscellaneous Revisions and Merger Application Requirements
    20. The Commission has reviewed its existing regulations and 
proposes to revise various provisions to bring them up to date with the 
Commission's practices and ensure clarity and consistency with the 
revisions proposed herein. Generally, we are proposing revisions to 
reflect the fact that there will be only one regulation for submission 
of privileged materials, proposed section 388.112.
    21. Accordingly, the Commission proposes to revise its requirements 
for filing merger applications to likewise make these regulations 
dovetail with the proposed filing requirements for privileged 
materials. We propose to remove from section 33.8 provisions specific 
to the merger program that relate to privileged materials, including 
provisions providing for the number of non-public copies to be filed 
when applicants file privileged material. These merger specific 
provisions will be superseded by proposed section 388.112.
    22. Furthermore, we propose to remove the requirement in section 
33.8 establishing the number of copies to be submitted and propose that 
applicants be required to submit their application or petition in 
accordance with filing procedures posted on the Commission's Web site 
at https://www.ferc.gov.\50\ These procedures were recently updated to 
include a requirement that 3 courtesy copies of an application be 
delivered to the Office of Energy Market Regulation (OEMR) for the use 
of the merger analysts (including public and non-public format, if 
applicable, and copies of CDs or other digital media containing the 
studies and competitive analyses required by 18 CFR 33.3 and 33.4).\51\ 
Once section 33.8 is revised, applicants will only need to file the 
number of copies specified in the filing procedures posted on the Web 
site, and provide the courtesy copies to OEMR.
---------------------------------------------------------------------------

    \50\ See also proposed section 33.8. The ``Quick Reference Guide 
for Paper Submissions'' (revised Oct. 1, 2011) adopted the courtesy 
copy requirement for merger applications and is available via the 
Documents and Filing section of https://www.ferc.gov.
    \51\ 18 CFR 385.2004. This is a reduction of the requirement to 
file 7 copies.
---------------------------------------------------------------------------

B. Rule 213(d)--Proposed Timeline for Responding to Motions Requesting 
Extensions of Time

    23. Another procedural issue recently has arisen which highlights 
the need to revise the Commission's regulations regarding the time 
period for filing answers to motions seeking extensions of time. Under 
Commission regulations, the standard time for filing an answer to a 
motion is 15 days, including motions requesting procedural relief such 
as an extension of time.\52\ In many cases, filers do not make such 
filings until less than 15 days remains before the substantive filing 
is due, and the Commission, therefore, frequently has less than 15 days 
on which to act on such motions.\53\ There also may be cases in which 
filers make the request outside of the 15 day period, but, for planning 
purposes, need to know whether their request will be granted. In most 
cases, such procedural filings are not controversial or complex, so any 
issues that might arise can be addressed with a shorter answer period. 
The Commission therefore proposes to revise Rule 213(d) to provide that 
answers to motions requesting an extension of time as well as motions 
seeking to expedite a deadline, that is, shorten the period of time in 
which action is to occur, will be due five days \54\ from the date on 
which the motion was filed, unless otherwise ordered.\55\
---------------------------------------------------------------------------

    \52\ Authority to act on motions for extensions of time is 
delegated to the Secretary of the Commission and to Office 
Directors. 18 CFR 375.302(f); 375.303(b)(1)(ii); 375.307(b)(1)(ii); 
375.308(c)(4).
    \53\ See Black Oak Energy, L.L.C. v. PJM Interconnection, 
L.L.C., 131 FERC ] 61,024, at P 29, 43 (2010) (denying rehearing of 
Commission's grant of extension of time for failure to provide 15 
days for answer).
    \54\ Pursuant to Rule 2007, if the day for responding falls on a 
weekend or other day on which the Commission is closed, the response 
is due by the close of the next day on which the Commission remains 
open. See 18 CFR 385.2007(a)(2). The Commission intends that, 
subject to Rule 2007, answers would be filed in five calendar days.
    \55\ The Commission ordinarily will not issue a notice of the 
request for extension or expedited treatment, since parties will be 
served with such requests.
---------------------------------------------------------------------------

    24. Given the lack of complexity attendant to such motion filings, 
the five-day shortened notice period appears to strike a reasonable 
balance between the interests of those needing to request relief on 
short notice and those having to respond to such motions. The 
Commission, however, seeks comment on whether additional or less time 
would effect a better balance of interests.
    25. In addition, a related change is being proposed to the 
Secretary's delegation authority under 18 CFR 375.302(b) to revise the 
regulation to make clear the delegated authority of the Secretary of 
the Commission to address shortened answer periods for requests for 
extension of time. The delegated authority of other office directors 
also permits them to respond to such requests.\56\ Exercise of such 
authority will help expedite requests for extension of time.
---------------------------------------------------------------------------

    \56\ See 18 CFR 375.307(b)(1)(ii).
---------------------------------------------------------------------------

III. Information Collection Statement

    26. Office of Management and Budget (OMB) regulations require OMB 
to approve certain information collection requirements imposed by 
agency rule.\57\ This proposed rule does not contain any information 
collection requirements and compliance with the OMB regulations is thus 
not required. For those filers of certain privileged material that now 
choose to file electronically there should be a reduction in burden due 
to the efficiencies and ease associated with electronic submission. The 
Commission is submitting a copy of this proposed rulemaking to OMB for 
informational purposes.
---------------------------------------------------------------------------

    \57\ 5 CFR 1320.12.
---------------------------------------------------------------------------

IV. Environmental Analysis

    27. 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.\58\ This 
proposed rule would 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.\59\ This 
proposed rulemaking is exempt under that provision.
---------------------------------------------------------------------------

    \58\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. 
& Regs. ] 30,783 (1987).
    \59\ 18 CFR 380.4(1) and (5).

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[[Page 80843]]

V. Regulatory Flexibility Act Certification

    28. The Regulatory Flexibility Act of 1980 (RFA) \60\ generally 
requires a description and analysis of proposed rules that will have 
significant economic impact on a substantial number of small entities. 
The RFA mandates consideration of regulatory alternatives that 
accomplish the stated objectives of a proposed rulemaking while 
minimizing any significant economic impact on a substantial number of 
small entities. The Small Business Administration's (SBA) Office of 
Size Standards develops the numerical definition of a small 
business.\61\ The SBA has established a size standard for electrical 
utilities, stating that a firm is small if, including its affiliates, 
it is primarily engaged in the transmission, generation, and/or 
distribution of electric energy for sale and its total electric output 
for the preceding twelve months did not exceed four million MWh.\62\
---------------------------------------------------------------------------

    \60\ 5 U.S.C. 601-612.
    \61\ 13 CFR 121.101 (2011).
    \62\ 13 CFR 121.201, Sector 22 Utilities & n.1.
---------------------------------------------------------------------------

    29. This proposed rule concerns procedural matters and is expected 
to increase the ease and convenience of filing.\63\ 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.
---------------------------------------------------------------------------

    \63\ See Order No. 703, FERC Stats. & Regs. ] 31,259 at P 39. 
The Commission does not believe that an RFA analysis similar to that 
provided in Order No. 714, FERC Stats. & Regs. ] 31,276 at P 113, is 
required or would be useful, because persons making filings with the 
Commission would not need new software, systems or training, and 
would not be required to convert existing materials to the new 
format, as was the case in that proceeding.
---------------------------------------------------------------------------

VI. Comment Procedures

    30. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due February 27, 2012. Comments must refer to 
Docket No. RM12-2-000, and must include the commenter's name, the 
organization they represent, if applicable, and their address in their 
comments.
    31. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's Web site at https://www.ferc.gov. The Commission accepts most standard word processing 
formats. Documents created electronically using word processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    32. Commenters that are not able to file comments electronically 
must send an original of their comments to: Federal Energy Regulatory 
Commission, Secretary of the Commission, 888 First Street NE., 
Washington, DC 20426.
    33. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VII. Document Availability

    34. 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 (https://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.
    35. 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.
    36. 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 email at 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
public.referenceroom@ferc.gov.

List of Subjects

18 CFR Part 4

    Administrative practice and procedure, Electric power, Reporting 
and recordkeeping requirements.

18 CFR Part 5

    Administrative practice and procedure, Electric power, Reporting 
and recordkeeping requirements.

18 CFR Part 16

    Administrative practice and procedure, Electric power, Reporting 
and recordkeeping requirements.

18 CFR Part 33

    Electric utilities, Reporting and recordkeeping requirements, 
Securities.

18 CFR Part 35

    Electric power rates, Electric utilities, Reporting and 
recordkeeping requirements.

18 CFR Part 157

    Administrative practice and procedure, Natural gas, Reporting and 
recordkeeping requirements, Uniform System of Accounts.

18 CFR Part 348

    Pipelines, Reporting and recordkeeping requirements.

18 CFR Part 375

    Authority delegations (Government agencies), Seals and insignia, 
Sunshine Act.

18 CFR Part 380

    Environmental impact statements, Reporting and recordkeeping 
requirements.

18 CFR Part 385

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

18 CFR Part 388

    Confidential business information; Freedom of information.

    By direction of the Commission.
Kimberly D. Bose,
Secretary.
    In consideration of the foregoing, the Commission proposes to amend 
Parts 4, 5, 16, 33, 35, 157, 348, 375, 380, 385, and 388, Chapter I, 
Title 18, of the Code of Federal Regulations, as follows.

PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATIONS OF 
PROJECT COSTS

    1. The authority citation for Part 4 is revised to read as follows:

    Authority:  16 U.S.C. 791a-825v, 2601-2645; 42 U.S.C. 7101-7352.


Sec.  4.39  [Amended]

    2. In Sec.  4.39, paragraph (e), remove the phrase ``Critical 
Energy Infrastructure Information in Sec. Sec.  388.112 and 388.113 of 
subchapter X of this chapter'' and add the phrase ``privileged 
materials and Critical Energy Infrastructure Information in Sec. Sec.  
388.112 and 388.113 of this chapter.'' in its place.

[[Page 80844]]

PART 5--INTEGRATED LICENSE APPLICATION PROCESS

    3. The authority citation for Part 5 is revised to read as follows:

    Authority:  16 U.S.C. 791a-825v, 2601-2645; 42 U.S.C. 7101-7352.

    4. Revise paragraph (c) of Sec.  5.29 as set forth below:


Sec.  5.29  Other provisions.

* * * * *
    (c) Requests for privileged or Critical Energy Infrastructure 
Information treatment of pre-filing submission. If a potential 
Applicant requests privileged or critical energy infrastructure 
information treatment of any information submitted to the Commission 
during pre-filing consultation (except for the information specified in 
Sec.  5.4), the Commission will treat the request in accordance with 
the provisions in Sec.  388.112 of this chapter until the date the 
application is filed with the Commission.
* * * * *

PART 16--PROCEDURES RELATING TO TAKEOVER AND RELICENSING OF 
LICENSED PROJECTS

    5. The authority citation for Part 16 is revised to read as 
follows:

    Authority:  16 U.S.C. 791a-825v, 2601-2645; 42 U.S.C. 7101-7352.


Sec.  16.8  [Amended]

    6. In Sec.  16.8, paragraph (g), add the phrase ``or Critical 
Energy Infrastructure Information'' after the word ``privileged'' in 
the introductory text.

PART 33--APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203

    7. The authority citation for Part 33 is revised to read as 
follows:

    Authority:  16 U.S.C. 791a-825v, 2601-2645; 31 U.S.C. 9701; 42 
U.S.C. 7101-7352; Pub. L. 109-58, 119 Stat. 594.

    8. Revise Sec.  33.8 to read as follows:


Sec.  33.8  Requirements for Filing Applications.

    The applicant must submit the application or petition to the 
Secretary of the Commission in accordance with filing procedures posted 
on the Commission's Web site at https://www.ferc.gov.
    (a) If the applicant seeks to protect any portion of the 
application, or any attachment thereto, from public disclosure, the 
applicant must make its filing in accordance with the Commission's 
instructions for submission of privileged materials and Critical Energy 
Infrastructure Information in Sec.  388.112 of this chapter.
    (b) If required, the applicant must submit information specified in 
paragraphs (b), (c), (d), (e) and (f) of Sec.  33.3 or paragraphs (b), 
(c), (d) and (e) of Sec.  33.4 on electronic recorded media (i.e., CD/
DVD) in accordance with Sec.  385.2011 of the Commission's regulations, 
along with a printed description and summary. The printed portion of 
the applicant's submission must include documentation for the 
electronic information, including all file names and a summary of the 
data contained in each file. Each column (or data item) in each 
separate data table or chart must be clearly labeled in accordance with 
the requirements of Sec. Sec.  33.3 and 33.4. Any units of measurement 
associated with numeric entries must also be included.


Sec.  33.9  [Removed and Reserved].

    9. Remove and reserve Sec.  33.9.

PART 35--FILING OF RATE SCHEDULES AND TARIFFS

    10. The authority citation for Part 35 is revised to read as 
follows:

    Authority:  16 U.S.C. 791a-825v, 2601-2645; 31 U.S.C. 9701; 42 
U.S.C. 7101-7352.

    11. Revise Sec.  35.37, paragraph (f) to read as follows.


Sec.  35.37  Market power analysis required.

* * * * *
    (f) If the Seller seeks to protect any portion of a filing from 
public disclosure, the Seller must make its filing in accordance with 
the Commission's instructions for filing privileged materials and 
critical energy infrastructure information in Sec.  388.112 of this 
chapter.

PART 157-- APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND 
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER 
SECTION 7 OF THE NATURAL GAS ACT

    12. The authority citation for Part 157 continues to read as 
follows:

    Authority: 15 U.S.C. 717-717w.


Sec.  157.21  [Amended]

    13. In Sec.  157.21, paragraph (h), remove the phrase ``for the 
submission of documents containing critical energy infrastructure 
information, as defined in Sec.  388.113.'' and add the phrase ``of 
this chapter for the submission of documents containing privileged 
materials or critical energy infrastructure information.'' in its 
place.


Sec.  157.34  [Amended]

    14. In Sec.  157.34, paragraph (d)(4), remove the phrase ``under 
confidential treatment pursuant to Sec.  388.112 of this chapter if 
desired.'' and add the phrase ``seeking privileged treatment pursuant 
to Sec.  388.112 of this chapter.'' in its place.

PART 348--OIL PIPELINE APPLICATIONS FOR MARKET POWER DETERMINATIONS

    15. The authority citation for Part 348 is revised to read as 
follows:

    Authority:  42 U.S.C. 7101-7352, 49 U.S.C. 60502; 49 App. U.S.C. 
1-85 (1988).

    16. Revise Sec.  348.2, paragraph (a) to read as follows:


Sec.  348.2  Procedures.

    (a) All filings under this Part must be made electronically 
pursuant to the requirements of Sec. Sec.  341.1 and 341.2 of this 
chapter. A carrier seeking privileged treatment for all or any part of 
its filing must submit a request for privileged treatment in accordance 
with Sec.  388.112 of this chapter.
* * * * *

PART 375--THE COMMISSION

    17. The authority citation for Part 375 is revised to read as 
follows:

    Authority:  5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791-825v, 2601-2645; 42 U.S.C. 7101-7352.

    18. Revise Sec.  375.302, paragraph (b) to read as follows:


Sec.  375.302  Delegations to the Secretary.

* * * * *
    (b) Prescribe, for good cause, a different time than that required 
by the Commission's Rules of Practice and Procedure or Commission order 
for filing by public utilities, licensees, natural gas companies, and 
other persons of answers to complaints, petitions, motions, and other 
documents.

PART 380--REGULATIONS IMPLEMENTING THE NATIONAL ENVIRONMENTAL 
POLICY ACT

    17. The authority citation for Part 380 continues to read as 
follows:

    Authority:  42 U.S.C. 4321-4370a, 7101-7352; E.O. 12009, 3 CFR 
1978 Comp., p. 142.


Sec.  380.12  [Amended]

    18a. In Sec.  380.12, paragraph (f)(4), remove the second sentence.


Sec.  380.16  [Amended]

    18b. In Sec.  380.16, paragraph (f)(4), remove the second sentence.

[[Page 80845]]

PART 385--RULES OF PRACTICE AND PROCEDURE

    19. 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).


Sec.  385.206  [Amended]

    20. Remove and reserve Sec.  385.206, paragraph (e).
    21. Revise Sec.  385.213, paragraph (c)(5) to read as follows:


Sec.  385.213  Answers (Rule 213).

* * * * *
    (c) Contents. * * *
    (5) When submitting with its answer any request for privileged 
treatment of documents and information in accordance with this chapter, 
a respondent must provide a public version of its answer without the 
information for which privileged treatment is claimed and its proposed 
form of protective agreement to each entity that has either been served 
pursuant to Sec.  385.206 (c) or whose name is on the official service 
list for the proceeding compiled by the Secretary.
    22. Revise Sec.  385.213, paragraph (d)(1) to read as follows:


Sec.  385.213  Answers (Rule 213).

* * * * *
    (d) Time limitations. (1) Any answer to a motion or to an amendment 
to a motion must be made within 15 days after the motion or amendment 
is filed, except as described below or unless otherwise ordered.
    (i) If a motion requests an extension of time or a shortened time 
period for action, then answers to the motion to extend or shorten the 
time period shall be made within 5 days after the motion is filed, 
unless otherwise ordered.
    (ii) [Reserved]
* * * * *


Sec.  385.606  [Amended]

    23. In Sec.  385.606, paragraph (f), remove the sentence ``See 
sections 385.410 and 388.112 of this chapter.'' and in paragraph (j), 
remove the phrase ``section 388.112 of''.

PART 388--INFORMATION AND REQUESTS

    24. The authority citation for part 388 continues to read as 
follows:

    Authority:  5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42 
U.S.C. 7101-7352.

    25. Revise Sec.  388.112 to read as follows:


Sec.  388.112  Requests for privileged treatment and Critical Energy 
Infrastructure Information (CEII) treatment for documents submitted to 
the Commission.

    (a) Scope. (1) By following the procedures specified in this 
section, any person submitting a document to the Commission may request 
privileged treatment for some or all of the information contained in a 
particular document that it claims is exempt from the mandatory public 
disclosure requirements of the Freedom of Information Act, 5 U.S.C. 552 
(FOIA), and should be withheld from public disclosure. For the purposes 
of the Commission's filing requirements, information subject to an 
outstanding claim of exemption from disclosure under FOIA, including 
critical energy infrastructure information (CEII), will be referred to 
as privileged material.
    (2) Any person submitting documents containing CEII as defined in 
Sec.  388.113, or seeking access to such information should follow the 
procedures in this chapter.
    (b) Procedures for filing and obtaining privileged or CEII 
material. (1) General Procedures. A person requesting that material be 
treated as privileged information or CEII must include in its filing a 
justification for such treatment in accordance with filing procedures 
posted on the Commission's Web site at https://www.ferc.gov. A person 
requesting that a document filed with the Commission be treated as 
privileged or CEII must designate the document as privileged or CEII in 
making an electronic filing or clearly indicate a request for such 
treatment on a paper filing. The cover page and pages or portions of 
the document containing material for which privileged treatment is 
claimed should be clearly labeled in bold, capital lettering, 
indicating that it contains privileged, confidential and/or Critical 
Energy Infrastructure Information, as appropriate, and marked ``DO NOT 
RELEASE.'' The filer also must submit to the Commission a public 
version with the information that is claimed to be privileged redacted, 
to the extent practicable.
    (2) Procedures for Proceedings with a Right to Intervene. The 
following procedures set forth the methods for filing and obtaining 
access to material that is filed as privileged in complaint proceedings 
and in any proceeding to which a right to intervention exists:
    (i) If material is filed as privileged or CEII in a complaint 
proceeding or other proceeding to which a right to intervention exists, 
a proposed form of protective agreement must be included with the 
filing. This requirement does not apply to material submitted in 
hearing or settlement proceedings, or if the only material for which 
privileged treatment is claimed consists of landowner lists or 
privileged information filed under Sec. Sec.  380.12(f), (m), (o) and 
380.16(f) of this chapter.
    (ii) The filer must provide the public version of the document and 
its proposed form of protective agreement to each entity that is 
required to be served with the filing.
    (iii) Any person who is a participant in the proceeding or has 
filed a motion to intervene or notice of intervention in the proceeding 
may make a written request to the filer for a copy of the complete, 
non-public version of the document. The request must include an 
executed copy of the protective agreement and a statement of the 
person's right to party or participant status or a copy of their motion 
to intervene or notice of intervention. Any person may file an 
objection to the proposed form of protective agreement. A filer, or any 
other person, may file an objection to disclosure, generally or to a 
particular person or persons who have sought intervention.
    (iv) If no objection to disclosure is filed, the filer must provide 
a copy of the complete, non-public document to the requesting person 
within 5 days after receipt of the written request that is accompanied 
by an executed copy of the protective agreement. If an objection to 
disclosure is filed, the filer shall not provide the non-public 
document to the person or class of persons identified in the objection 
until ordered by the Commission or a decisional authority.
    (v) For material filed in proceedings set for trial-type hearing or 
settlement judge proceedings, a participant's access to material for 
which privileged treatment is claimed is governed by the presiding 
official's protective order.
    (vi) For landowner lists, information filed as privileged under 
Sec. Sec.  380.12(f), (m), (o) and 380.16(f), forms filed with the 
Commission, and other documents not covered above, access to this 
material can be sought pursuant to a FOIA request under Sec.  388.108 
or a CEII request under Sec.  388.113 of this chapter. Applicants are 
not required under paragraph (b)(2)(iv) of this section to provide 
intervenors with landowner lists and the other materials identified in 
the previous sentence.
    (c) Effect of privilege or CEII claim. (1) For documents filed with 
the Commission:
    (i) The documents for which privileged or CEII treatment is claimed 
will be maintained in the Commission's document repositories as non-
public until such time as the Commission may determine that the 
document is not

[[Page 80846]]

entitled to the treatment sought and is subject to disclosure 
consistent with Sec. Sec.  388.108 or 388.113 of this chapter. By 
treating the documents as nonpublic, the Commission is not making a 
determination on any claim of privilege or CEII status. The Commission 
retains the right to make determinations with regard to any claim of 
privilege or CEII status, and the discretion to release information as 
necessary to carry out its jurisdictional responsibilities.
    (ii) The request for privileged or CEII treatment and the public 
version of the document will be made available while the request is 
pending.
    (2) For documents submitted to Commission staff. The notification 
procedures of paragraphs (d), (e), and (f) of this section will be 
followed before making a document public.
    (d) Notification of request and opportunity to comment. When a FOIA 
or CEII requester seeks a document for which privilege or CEII status 
has been claimed, or when the Commission itself is considering release 
of such information, the Commission official who will decide whether to 
release the in