137 FERC ¶ 61,219 

UNITED STATES OF AMERICA 

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 

(Issued December 16, 2011) 

AGENCY: Federal Energy Regulatory Commission. 

ACTION: Notice of Proposed Rulemaking. 

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 
Docket No. RM12-2-000 - ii - 

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 [INSERT DATE 60 days after publication in the

FEDERAL REGISTER]. 

ADDRESSES: Comments, identified by docket number, may be filed in the following 

ways: 

 Electronic Filing through http://www.ferc.gov. Documents created electronically 

using word processing software should be filed in native applications or print-toPDF 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. 
Docket No. RM12-2-000 - iii - 

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: 
 

137 FERC ¶ 61,219 

UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

Before Commissioners: Jon Wellinghoff, Chairman; 

 Philip D. Moeller, John R. Norris, 

 and Cheryl A. LaFleur. 

Filing of Privileged Materials and Answers to Motions Docket No. RM12-2-000 

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 Act3 and 

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

 Pub. L. No. 104-13, 109 Stat. 163 (1995). 

3

 Title XVII, Pub. L. No. 105-277, 112 Stat. 2681 (1998). 
Docket No. RM12-2-000 - 2 - 

 

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). 

2. Second, the Commission proposes to revise section 388.112 of its 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

4

 Pub. L. No. 107-347, 116 Stat. 2899 (2002). 

5 See Chairman J. Wellinghoff’s July 11, 2011 News Release, “FERC to Institute 

Public Review of Regulations.” 
Docket No. RM12-2-000 - 3 - 

 

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

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. 

6 See Rule 2004, 18 CFR 385.2004, providing that filings conform to the 

requirements posted on the Commission’s web site at http://www.ferc.gov. 

7

 18 CFR 385.213(d) (providing for answers to motions to be filed in 15 days 

unless otherwise ordered). 
Docket No. RM12-2-000 - 4 - 

5. The Commission seeks comment on these proposals, which are described more 

fully below.8

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 

 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. 

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)). 
Docket No. RM12-2-000 - 5 - 

issue filing instructions.15

 

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 

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 

12 Electronic Tariff Filings, Order No. 714, FERC Stats. & Regs. ¶ 31,276 (2008). 

13 Rule 2003(c), 18 CFR 385.2003(c). 

14 See http://www.ferc.gov/docs-filing/efiling/docs-efiled.asp. 

15 Rule 2003(c)(1)(ii), 18 CFR 385.2003(c)(1)(ii); see http://www.ferc.gov/docsfiling/efiling/user-guide.asp. 

16 Pub. L. No. 105-277, Sec. 1702-1704 (1998); see OMB Circular A-130 

Paragraph 8.a.1(k). 

17 18 CFR 390.1 and 18 C.F.R. 390.2. 

18 Rule 2001(a) of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.2001(a). 
Docket No. RM12-2-000 - 6 - 

majority of all documents filed at the Commission. The system is accessible through the 

Commission’s web site at http://www.ferc.gov/docs-filing/efiling.asp. 

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. 

 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. 
Docket No. RM12-2-000 - 7 - 

 

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. 

10. In recent years, the Commission has been receiving a larger number of requests for 

privileged treatment of documents not associated with 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 

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 

http://www.ferc.gov. 

22 See ANR Pipeline Co., 129 FERC ¶ 61,080 (2009); PPL Montana, LLC, 113 

FERC ¶ 61,231 (2005). 
Docket No. RM12-2-000 - 8 - 

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. 

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. 

 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), http://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), 

http://elibrary.ferc.gov/idmws/common/opennat.asp?fileID=10131785. 

24 18 CFR 385.206, -.213. 
Docket No. RM12-2-000 - 9 - 

 

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 

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 

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 (http://www.ferc.gov/docsfiling/efiling-user-guide.pdf). 

26 Pub. L. No. 105-277, § 1704, 112 Stat. 2681, 2681-750 (1998). 

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).
Docket No. RM12-2-000 - 10 - 

 

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 

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 

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). 
Docket No. RM12-2-000 - 11 - 

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 

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: 

a. Proposed section 388.112(a)(1) clarifies that the term privileged materials 

refers to information subject to an outstanding claim of exemption from 

 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. 

31 18 CFR 385.206(e). 
Docket No. RM12-2-000 - 12 - 

 

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 

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 website at http://www.ferc.gov.

34 

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 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 agreement35

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). 

34 See the “Submission Guidelines” on the eFiling link at http://www.ferc.gov. 

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

http://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). 
Docket No. RM12-2-000 - 13 - 

 

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

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

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 

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). 

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. 

39 Trial Staff, as identified in 18 CFR 385.102(b)(2), should be treated similarly to 

other persons making a request. 
Docket No. RM12-2-000 - 14 - 

 

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

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

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 

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. 

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). 
Docket No. RM12-2-000 - 15 - 

order, according to policies established by the Commission’s Office of 

Administrative Law Judges.43

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. 

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 

 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. 

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. 
Docket No. RM12-2-000 - 16 - 

 

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. 

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 by regulated entities subject to 

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. 

48 Filers submitting paper filings should conform their filings to the requirements 

for paper filing posted on the Commission’s web site, http://www.ferc.gov, pursuant to 

Rule 2004. 18 CFR 385.2004. 
Docket No. RM12-2-000 - 17 - 

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. 

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 

 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 website: http://www.ferc.gov/docsfiling/etariff/implementationguide.pdf. 
Docket No. RM12-2-000 - 18 - 

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 http://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 

http://www.ferc.gov. 

51 18 CFR 385.2004. This is a reduction of the requirement to file 7 copies. 
Docket No. RM12-2-000 - 19 - 

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 

 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). 
Docket No. RM12-2-000 - 20 - 

 

is to occur, will be due five days54 from the date on which the motion was filed, unless 

otherwise ordered.55 

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. 

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. 

56 See 18 CFR 375.307 (b)(1)(ii).
Docket No. RM12-2-000 - 21 - 

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. 

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 

 57 5 CFR 1320.12. 

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). 
Docket No. RM12-2-000 - 22 - 

for procedural, ministerial or internal administrative actions.59 This proposed rulemaking 

is exempt under that provision. 

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

 59 18 CFR 380.4(1) and (5). 

60 5 U.S.C. §§ 601-612. 

61 13 C.F.R. 121.101 (2011). 

62 13 C.F.R. 121.201, Sector 22 Utilities & n.1. 
Docket No. RM12-2-000 - 23 - 

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. 

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 [INSERT DATE 

60 days after publication in the FEDERAL REGISTER]. 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 http://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 

 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. 
Docket No. RM12-2-000 - 24 - 

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 

(http://www.ferc.gov) and in the Commission’s Public Reference Room during normal 

business hours (8:30 a.m. to 5:00 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 
Docket No. RM12-2-000 - 25 - 

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 e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at 

(202) 502-8371, TTY (202) 502-8659. E-mail 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. 

Electric Utilities, Reporting and recordkeeping requirements, Securities. 

18 CFR Part 33

Electric utilities, Reporting and recordkeeping requirements. 
Docket No. RM12-2-000 - 26 - 

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 utilities, Penalties, Pipelines, Reporting 

and recordkeeping requirements. 

18 CFR Part 388

Confidential business information; Freedom of information. 

By direction of the Commission. 

( S E A L ) 

Kimberly D. Bose, 

Secretary. 
Docket No. RM12-2-000 - 27 - 

 In consideration of the foregoing, the Commission proposes to amend Parts 4, 5, 

16, 33, 35, 157, 348, 380, 375, 385, 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. 

2. In § 4.39, paragraph (e), delete the phrase “Critical Energy Infrastructure 

Information in §§ 388.112 and 388.113 of subchapter X of this chapter” and add the 

phrase “privileged materials and Critical Energy Infrastructure Information in §§ 388.112 

and 388.113 of this chapter.” in its place. 

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 the heading and text of § 5.29, paragraph (c) as set forth below: 

§ 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 § 5.4), the Commission will treat 
Docket No. RM12-2-000 - 28 - 

the request in accordance with the provisions in § 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. 

6. In § 16.8, paragraph (g), insert the phrase “or Critical Energy Infrastructure 

Information” after the word “privileged” in the introductory sentence. 

PART 33—APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203

7. The authority citation for Part 33 should be 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. No. 109-58, 119 Stat. 594. 

8. Revise § 33.8 to read as follows: 

§ 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 

http://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 
Docket No. RM12-2-000 - 29 - 

Infrastructure Information in § 388.112 of this chapter. 

(b) If required, the applicant must submit information specified in paragraphs (b), (c), 

(d), (e) and (f) of § 33.3 or paragraphs (b), (c), (d) and (e) of § 33.4 on electronic 

recorded media (i.e., CD/DVD) in accordance with § 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 §§ 33.3 and 33.4. Any units of measurement associated with 

numeric entries must also be included. 

9. Revise § 33.9 to read as follows: 

§ 33.9 [Reserved]. 

PART 35 — FILING OF RATE SCHEDULES AND TARIFFS

10. The authority citation for Part 35 should be 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 § 35.37, paragraph (f) to read as follows. 

(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 
Docket No. RM12-2-000 - 30 - 

privileged materials and critical energy infrastructure information in § 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 should continue to read as follows: 

Authority: 15 U.S.C. 717–717w. 

13. In § 157.21, paragraph (h), delete the phrase “for the submission of documents 

containing critical energy infrastructure information, as defined in § 388.113.” and insert 

the phrase “of this chapter for the submission of documents containing privileged 

materials or critical energy infrastructure information.” in its place. 

14. In § 157.34, paragraph (d)(4), delete the phrase “under confidential treatment 

pursuant to § 388.112 of this chapter if desired.” and insert the phrase “seeking privileged 

treatment pursuant to § 388.112 of this chapter.” in its place. 

PART 348— OIL PIPELINE APPLICATIONS FOR MARKET POWER 

DETERMINATIONS

15. The authority citation for Part 348 should be revised to add the date reference 

“(1988)” following the citation “49 App. U.S.C. 1–85” as follows: 
Docket No. RM12-2-000 - 31 - 

Authority: 42 U.S.C. 7101–7352, 49 U.S.C. 60502; 49 App. U.S.C. 1–85 

(1988). 

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

§ 348.2 Procedures. 

(a) All filings under this Part must be made electronically pursuant to the requirements of 

§§ 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 

§ 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 § 375.302, paragraph (b) to read as follows: 

§ 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. 
Docket No. RM12-2-000 - 32 - 

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. 

18. In § 380.12, paragraph (f)(4), and § 380.16, paragraph (f)(4), delete the second 

sentence reading “The cover and relevant pages or portions of the report should be clearly 

labeled in bold lettering: “CONTAINS PRIVILEGED INFORMATION—DO NOT 

RELEASE.” 

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). 

20. Delete the text of § 385.206, paragraph (e) and insert “[Reserved].” in its place. 

21. Revise § 385.213, paragraph (c)(5) to read as follows: 

§ 385.213 Answers (Rule 213). 

* * * * * 

 (c) Contents. * * * 

(5) When submitting with its answer any request for privileged treatment of documents 
Docket No. RM12-2-000 - 33 - 

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 § 385.206 (c) or whose name is on the official service list for the proceeding 

compiled by the Secretary. 

22. Revise § 385.213, paragraph (d)(1) to read as follows: 

* * * * * 

(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. 

(2) * * * 

23. In § 385.606, paragraph (f), delete the sentence “See sections 385.410 and 388.112 

of this chapter.” and in paragraph (j), delete 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. 
Docket No. RM12-2-000 - 34 - 

25. Revise § 388.112 to read as follows: 

§ 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 § 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 http://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 
Docket No. RM12-2-000 - 35 - 

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 §§ 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 
Docket No. RM12-2-000 - 36 - 

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 §§ 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 § 388.108 or a 

CEII request under § 388.113 of this chapter. Applicants are not required under 

paragraph (iv) to provide intervenors with landowner lists and the other materials 

identified in the previous sentence. 
Docket No. RM12-2-000 - 37 - 

(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 entitled to the treatment sought and 

is subject to disclosure consistent with §§ 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 information or any other appropriate Commission 

official will notify the person who submitted the document and give the person an 

opportunity (at least five calendar days) in which to comment in writing on the request. 
Docket No. RM12-2-000 - 38 - 

A copy of this notice will be sent to the requester. 

(e) Notification before release. Notice of a decision by the Commission, the Chairman of 

the Commission, the Director, Office of External Affairs, the General Counsel or General 

Counsel's designee, a presiding officer in a proceeding under part 385 of this chapter, or 

any other appropriate official to deny a claim of privilege, in whole or in part, or to make 

a limited release of CEII, will be given to any person claiming that the information is 

privileged or CEII no less than 5 calendar days before disclosure. The notice will briefly 

explain why the person's objections to disclosure are not sustained by the Commission. 

A copy of this notice will be sent to the FOIA or CEII requester. 

(f) Notification of suit in Federal courts. When a FOIA requester brings suit to compel 

disclosure of information for which a person has claimed privileged treatment, the 

Commission will notify the person who submitted the documents of the suit. 

26. In § 388.113, paragraph (d)(1) and paragraph (d)(2), delete the phrase “paragraph 

(d)(3)” and insert the phrase “paragraph (d)(4)” in its place.