Formal Requirements for Filings in Proceedings Before the Commission, 60696-60698 [2020-18658]
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Federal Register / Vol. 85, No. 188 / Monday, September 28, 2020 / Rules and Regulations
(2) Rules exempt from rulemaking
requirements under 5 U.S.C. 553(a);
(3) Rules of Department organization,
procedure, or practice;
(4) Decisions of Department
adjudications under 5 U.S.C. 554, or
similar statutory provisions;
(5) Internal guidance directed to the
Department that is not intended to have
substantial future effect on the behavior
of regulated parties; or
(6) Internal executive legal advice or
legal opinions addressed to executive
branch officials.
Pre-enforcement ruling means a
formal written communication by the
Department in response to an inquiry
from a person concerning compliance
with legal requirements that interprets
the law or applies the law to a specific
set of facts supplied by the person. The
term includes informal guidance under
section 213 of the Small Business
Regulatory Enforcement Fairness Act of
1996, Public Law 104–121 (Title II), as
amended, letter rulings, advisory
opinions, and no-action letters.
Secretary means the Secretary of
Commerce.
Significant guidance document means
a guidance document deemed to be
significant by OIRA because it may
reasonably be anticipated to:
(1) Lead to an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
loan programs, or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
of Executive Order 12866.
§ 29.2 Procedures for issuing guidance
documents.
(a) The Department will indicate
prominently that each guidance
document does not bind the public,
except as authorized by law or as
incorporated into a contract.
(b) The Department will comply with
Executive Orders 12866, 13563, 13609,
13771 and 13777 in issuing guidance
documents.
(c)(1) For a significant guidance
document, as determined by the
Administrator unless the Department
and the Administrator agree that
exigency, safety, health, or other
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compelling cause warrants an exception
from some or all requirements, the
Department will:
(i) Provide a period of public notice
and comment of at least 30 days before
issuance of a final guidance document,
and a public response from the
Department to major concerns raised in
comments, except when the Department
for good cause finds (and incorporates
such finding and a brief statement of
reasons therefor into the guidance
document) that notice and public
comment thereon are impracticable,
unnecessary, or contrary to the public
interest;
(ii) Seek approval on a non-delegable
basis by the Secretary or by a
Department component head appointed
by the President, before issuance; and
(iii) Submit the significant guidance
document for review by OIRA under
Executive Order 12866 before issuance.
(2) This section does not apply to preenforcement rulings.
(3) This section does not apply to any
document that falls within a class which
the Administrator or the Administrator’s
designee has determined is exempt from
consideration as significant guidance
documents.
§ 29.3 Public petition for withdrawal or
modification.
(a) The public may petition for
withdrawal or modification of a
particular guidance document by
submitting such petition through the
designated website: Department of
Commerce: www.commerce.gov/
guidance; Bureau of Economic Analysis
(BEA): www.bea.gov/guidance; Bureau
of Industry and Security (BIS):
www.bis.doc.gov/guidance; U.S. Census
Bureau: www.census.gov/guidance;
Economic Development Administration:
www.eda.gov/guidance; International
Trade Administration (ITA):
www.trade.gov/guidance; Minority
Business Development Agency (MBDA):
www.mbda.gov/guidance; National
Institute of Standards and Technology
(NIST): www.nist.gov/guidance;
National Oceanic and Atmospheric
Administration (NOAA):
www.noaa.gov/guidance; National
Technical Information Service (NTIS):
www.ntis.gov/guidance; National
Telecommunications and Information
Administration (NTIA):
www.ntia.doc.gov/guidance; and U.S.
Patent and Trademark Office (USPTO):
www.uspto.gov/guidance.
(b) The Department or the relevant
individual bureau will provide a
response to such petition within 90 days
of receipt of the petition.
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§ 29.4
General provisions.
Notwithstanding any other provision
in this part, nothing in this part shall
apply:
(a) To any action that pertains to
foreign or military affairs, or to a
national security or homeland security
function of the United States (other than
guidance documents involving
procurement or the import or export of
articles and services subject to the
Department’s jurisdiction);
(b) To any action related to a criminal
investigation or prosecution, including
undercover operations, or any civil
enforcement action or related to a
criminal investigation or prosecution,
including undercover operations, or any
civil enforcement action or related
investigation by the Department of
Justice, including any action related to
a civil investigative demand under 18
U.S.C. 1968;
(c) To any investigation of misconduct
by a Department employee or any
disciplinary, corrective, or employment
action taken against a Department
employee;
(d) To any document or information
that is exempt from disclosure under the
Freedom of Information Act (FOIA), 5
U.S.C. 552(b); or
(e) In any other circumstance or
proceeding to which application of this
section, or any part of this part, would,
in the judgment of the Secretary,
undermine the national security.
Dated: August 19, 2020.
Robert Blair,
Director of Policy and Strategic Planning.
[FR Doc. 2020–18604 Filed 9–25–20; 8:45 am]
BILLING CODE 3510–DT–P
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
Federal Energy Regulatory
Commission.
ACTION: Order addressing clarification
and arguments raised on rehearing.
AGENCY:
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
SUMMARY:
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Federal Register / Vol. 85, No. 188 / Monday, September 28, 2020 / Rules and Regulations
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.
The order addressing
clarification is effective September 28,
2020.
DATES:
FOR FURTHER INFORMATION CONTACT:
Christopher Cook, Office of the
Secretary, 888 First Street NE,
Washington, DC 20426, (202) 502–8102,
christopher.cook@ferc.gov. Mark
Hershfield, Office of the General
Counsel, Federal Energy Regulatory
Commission, 888 First Street NE,
Washington, DC 20426, (202) 502–8597,
Mark.hershfield@ferc.gov.
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.
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
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.
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).
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to reach the same result in this
proceeding, as discussed below.6
60697
be stamped and recorded by the
Commission as received on that date.
B. Request for Clarification or, in the
Alternative, Rehearing
A. Order No. 862
5. Spiegel seeks clarification as to
3. The Commission’s prior regulations
whether the Commission will establish
provided that filers should send hard‘‘a legally valid back-up to electronic
copy submissions directly to the
filing . . . in the event the eFiling
Commission’s principal office, which is
system experiences an unexpected
located at 888 First Street NE,
malfunction on the day a filing is
Washington, DC 20426. In Order No.
due.’’ 10 Spiegel offered several options
862, the Commission determined that
to ensure that the Commission has in
sending hard-copy (including handplace a legally valid back-up to its
delivered) submissions, other than by
eFiling system. First, Spiegel
USPS, to an off-site facility for security
recommends that the Commission
screening and processing, prior to being
consider clarifying that, if the eFiling
delivered to the Commission’s principal
system is malfunctioning during certain
office, would better protect the safety of
hours, the filing deadline will roll over
the Commission, its employees, and the
to the next available business day.11
public. The revised regulations still
Second, Spiegel proposes that the
permitted USPS mail to be sent directly
Commission could formalize its email
to the Commission’s headquarters.7
system to accept filings when they are
Deliveries may be made to the off-site
unable to be filed through normal
facility in-person (by the filing entity or
eFiling. Third, Spiegel suggests
its designee) during the hours of 7:00
combining its first two
a.m. to 3:30 p.m. The Commission
recommendations, which it considers to
explained that revising the
be its principal recommendation.
Commission’s procedures to have
Finally, Spiegel states that, if these
hardcopy/hand-delivered submissions
alternatives are not considered legally
delivered to an off-site facility for
and practically feasible, the Commission
security screening, before delivery to the
should allow hand-deliveries to be
Commission, was consistent with
made at Commission headquarters and
government-wide guidance.8
logged in before being sent to the off-site
4. Moreover, the Commission
facility for screening.12 To limit security
determined that Order No. 862 would
risks, Spiegel suggests that the option of
not affect the public’s ability to make
hand-deliveries could be limited to
timely filings. The Commission
known entities.
reiterated that the public is strongly
6. As an alternative to the
encouraged to submit filings and
Commission providing clarification,
submissions electronically, through the
Spiegel requests rehearing, asserting
Commission’s eFiling application, at
that the Commission erred, in Order No.
9
https://www.ferc.gov/. The Commission 862, in three aspects. First, Spiegel
also explained that the off-site facility
argues that the Commission erred in
would log all deliveries when received
determining that the final rule would
and would provide the Commission
not ‘‘affect the public’s ability to make
with the log so that the documents may
timely filings.’’ Second, Spiegel states
that the Commission did not adequately
6 Allegheny Def. Project, slip op. at 30. The
consider the implication of changing the
Commission is not changing the outcome of Order
filing deadline for hand-deliveries from
No. 862. See Smith Lake Improvement &
5:00 p.m. ET to 3:30 p.m. ET. Finally,
Stakeholders Ass’n v. FERC, 809 F.3d 55, 56–57
(D.C. Cir. 2015).
Spiegel notes that the Commission erred
7 USPS has existing ‘‘security, screening, and
in concluding that the final rule was the
control processes’’ that comply with U.S.
best option for balancing physical
Department of Homeland Security’s best practices.
security against the ability of parties to
See Alex Dobuzinskis, Screening for Poisons,
Explosives in Mail a Daily Reality After U.S.
make timely filings.13
II. Discussion
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/iscmail-handling-screening-nonfouo-sept-2012508.pdf.
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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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
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.
13 Id. at 3–4.
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Federal Register / Vol. 85, No. 188 / Monday, September 28, 2020 / Rules and Regulations
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
ferconlinesupport@ferc.gov to report the
eFiling system malfunction. We outline
this practice in detail below to provide
clarity.
8. Specifically, should an entity
attempt to make a filing during a
Commission eFiling system
malfunction, the filer shall email OSEC
at ferconlinesupport@ferc.gov 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.
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
14 Id.
at 5.
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 ferconlinesupport@
ferc.gov.
15 Any
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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 (https://
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 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.
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
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DEPARTMENT OF STATE
22 CFR Part 126
[Public Notice: 11212]
RIN 1400–AF14
International Traffic in Arms
Regulations: Temporary Update to
Republic of Cyprus (Cyprus) Country
Policy
Department of State.
Temporary final rule.
AGENCY:
ACTION:
The Department of State is
amending the International Traffic in
Arms Regulations (ITAR) to update
defense trade policy toward the
Republic of Cyprus (Cyprus) by
temporarily removing prohibitions on
exports, reexports, retransfers, and
temporary imports of non-lethal defense
articles and defense services destined
for or originating in Cyprus. On June 2,
2020 the Secretary of State, exercising
authority under section 1250A(d) of the
National Defense Authorization Act for
Fiscal Year 2020 and section 205(d) of
the Eastern Mediterranean Security and
Energy Act as delegated from the
President, determined that it was
essential to the national security interest
of the United States to waive the
limitations on non-lethal defense
articles and defense services destined
for or originating in Cyprus. The waiver
is effective for one fiscal year. This
amendment reflects that waiver.
DATES: This temporary rule is effective
on October 1, 2020, and expires on
September 30, 2021, unless
subsequently extended.
FOR FURTHER INFORMATION CONTACT:
Sarah Heidema, Office of Defense Trade
Controls Policy, Department of State,
telephone (202) 663–2809, or email
deccspmddtc@midatl.service-now.com.
ATTN: Regulatory Change, ITAR
Section 126.1 Cyprus Country Policy
Update.
SUMMARY:
Section
1250A(d) of the National Defense
Authorization Act for Fiscal Year 2020
(Pub. L. 116–92) and section 205(d) of
the Eastern Mediterranean Security and
Energy Act (Div. J., Pub. L. 116–94)
provide that the policy of denial for
exports, reexports, or transfers of
defense articles on the United States
Munitions List (USML) to Cyprus shall
remain in place unless the President
determines and certifies to the
appropriate congressional committees
not less than annually that: (A) Cyprus
is continuing to cooperate with the U.S.
Government in anti-money laundering
reforms; and (B) Cyprus has taken the
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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 (https://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
