141 FERC ¶ 61,049

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Parts 4, 5, 16, 33, 34, 35, 157, 348, 375, 385 and 388

[Docket No. RM12-2-000; Order No. 769]

Filing of Privileged Materials and Answers to Motions

(Issued October 18, 2012)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final Rule.

SUMMARY: In this Final Rule, the Commission revises 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 

establishes two categories of privileged material for filing purposes: 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 as appropriate. Second, the 

Commission revises its regulations to provide a single set of uniform procedures 

for filing privileged materials. These revisions continue the Commission’s effort 

to reassess and streamline its regulations to ensure that they are efficient, effective 

and up to date.
Docket No. RM12-2-000 ii

Also, the Commission revises Rule 213(d) of its Rules of Practice and 

Procedure, which establishes the timeline for filing answers to motions, to clarify 

that the standard fifteen day reply time will not apply to motions requesting an 

extension of time or a shortened time period for action. Instead, the Commission 

proposes to set the time for responding to such motions at five days, unless 

another time period is established by notice based on the circumstances. 

EFFECTIVE DATE: The revised regulations are effective [insert date 60 days 

from the date the rule is published in the FEDERAL REGISTER]. 

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:
UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

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

ORDER NO. 769

FINAL RULE

TABLE OF CONTENTS

Paragraph Numbers

I. Background ............................................................................................................................3.

A. Electronic Filing Procedures............................................................................................3.

B. Notice of Proposed Rulemaking and Comments .............................................................9.

II. Regulations for Filing Privileged Materials. ........................................................................12.

A. Designation of Confidential Materials as “Privileged”....................................................20.

1. Comments.....................................................................................................................21.

2. Commission Response..................................................................................................22.

B. Establishing Separate Regulations Governing CEII Information ...................................24.

C. Form and Use of Protective Agreement...........................................................................29.

1. Comments.....................................................................................................................30.

2. Commission Response..................................................................................................36.

D. Consistency with Discovery Procedures used in Administrative Proceedings................44.

1. Comments.....................................................................................................................45.

2. Commission Response..................................................................................................46.

E. Procedures for Distributing Privileged Information.........................................................48.

1. Comments.....................................................................................................................49.

2. Commission Response..................................................................................................55.

F. NERC Notices of Penalty and Other Communications....................................................61.

1. Comments.....................................................................................................................61.

2. Commission Response..................................................................................................64.

G. Electronic Filing Procedures............................................................................................66.

H. Prospective Effect ............................................................................................................68.

I. Changes to Text of Proposed Regulations.........................................................................70.

1. Changes Adopted .........................................................................................................71.

2. Proposed Changes Not Accepted .................................................................................77.

III. Revised Time for Filing Answers to Motions for Extensions of Time or Expedited 

Action Dates...............................................................................................................................81.
Docket No. RM12-2-000 ii

1. Comments.....................................................................................................................83.

2. Commission Response..................................................................................................85.

IV. Information Collection Statement .......................................................................................88.

V. Environmental Analysis .......................................................................................................91.

VI. Regulatory Flexibility Act...................................................................................................92.

VII. Document Availability.......................................................................................................94.

VIII. Effective Date and Congressional Notification................................................................97.

IX. List of Subjects....................................................................................................................98.

Regulatory Text
141 FERC ¶ 61,049

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Jon Wellinghoff, Chairman;

 Philip D. Moeller, John R. Norris,

Cheryl A. LaFleur, and Tony T. Clark.

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

ORDER NO. 769

FINAL RULE

(Issued October 18, 2012)

1. In this Final Rule, the Commission revises 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 establishes two categories of 

privileged material for filing purposes: privileged material and critical energy 

infrastructure information (CEII). This revision will expand the ability to file 

electronically by permitting electronic filing of materials subject to Administrative Law 

Judge (ALJ) protective orders as appropriate. Second, the Commission revises its 

regulations to provide a single set of uniform procedures for filing privileged materials. 

These revisions continue the Commission’s effort to reassess and streamline its 

regulations to ensure that they are efficient, effective and up to date.
Docket No. RM12-2-000 - 2 -

2. Also, the Commission revises Rule 213(d) of its Rules of Practice and Procedure, 

which establishes the timeline for filing answers to motions, to clarify that the standard 

fifteen day reply time will not apply to motions requesting an extension of time or a 

shortened time period for action. Instead, the Commission proposes to set the time for 

responding to such motions at five days, unless another time period is established by 

notice based on the circumstances. 

I. Background

A. Electronic Filing Procedures

3. In 2000, the Commission first permitted filers to use the Internet to submit 

documents to the Commission.1 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.2 In 2007, the Commission 

implemented eFiling 7.0 which permitted a much broader range of documents to be 

submitted through the eFiling interface.3 In 2008, the Commission, in collaboration with 

the wholesale electric and gas quadrants of the North American Energy Standards Board 

 

1

Electronic Filing of Documents, Order No. 619, 65 FR 57088 (Sept. 21, 2000), 

FERC Stats. & Regs. ¶ 31,107 (2000).

2

See Rule 2003(c) of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.2003(c).

3

Filing Via the Internet, Order No. 703, FERC Stats. & Regs. ¶ 31,259 (2007) 

(amending Rule 2003(c)).
Docket No. RM12-2-000 - 3 -

and representatives from the Association of Oil Pipelines, implemented a set of standards 

to be used by companies in electronically filing tariff and tariff-related documents at the 

Commission.4 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 and to issue filing instructions.5 A list of qualified documents is published on 

the Commission’s web site.6 

4. 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.

7

 Users of the Commission’s eFiling system and related activities must register 

electronically through the Commission’s eRegistration system.8 Filing via the Internet is 

 

4

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

5 Rule 2003(c), 18 CFR 385.2003(c); Rule 2003(c)(1)(ii), 18 CFR 

385.2003(c)(1)(ii); see http://www.ferc.gov/docs-filing/efiling/user-guide.asp.

6

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

7

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

Paragraph 8.a.1(k).

8

18 CFR 390.1 and 18 C.F.R. 390.2.
Docket No. RM12-2-000 - 4 -

5. optional for eligible documents.9 The eFiling system now is receiving a 

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

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

6. Currently, the Commission accepts through electronic filing all documents, 

including privileged material and CEII,10 except for documents submitted pursuant to an 

ALJ’s protective order and some forms.

11

 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 

 

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

385.2001(a).

10 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 material and CEII 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). 

11 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 - 5 -

subject to an ALJ protective order, the Commission currently does not have a standard set 

of procedures for submitting such documents.

7. The Commission’s current complaint and answer regulations (sections 385.206 

and 385.213) contain detailed requirements for submitting 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.12 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. 

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

privileged treatment of documents not associated with complaints or answers.13 The 

request for privileged treatment has in some cases delayed the ability of the Commission 

 

12 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. 

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

FERC ¶ 61,231 (2005).
Docket No. RM12-2-000 - 6 -

to process such filings because the Commission was required to issue special orders or 

notices to ensure that parties could obtain access to the privileged material they needed in 

order to be able to participate in the proceeding.14 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.

B. Notice of Proposed Rulemaking and Comments

9. In its December 16, 2011 Notice of Proposed Rulemaking (NOPR), the 

Commission proposed to revise its regulations to address two outstanding concerns.15 

First, the Commission proposed uniform procedures for filing privileged materials in any 

proceeding in which a right of intervention exists. The Commission proposed to 

(a) provide two categories of privileged material for filing purposes, namely categories 

for CEII and all other privileged materials, (b) set up uniform procedures for filing and 

accessing privileged materials in most proceedings with a right to intervene, based upon 

the current complaint/answer process in Rules 206 and 213,16 and (c) consolidate the 

 

14 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); PJM Interconnection, L.L.C., Notice of Filing, Docket No. ER04-539-002 

(April 30, 2004). 

15 Filing of Privileged Materials and Answers to Motions, Notice of Proposed 

Rulemaking, 76 FR 80838 (Dec. 27, 2011) (NOPR), FERC Stats. & Regs. ¶ 32,685 

(2011).

16 18 CFR 385.206, -.213. 
Docket No. RM12-2-000 - 7 -

Commission’s regulations for submitting privileged materials in proposed 

section 388.112.

10. Second, the Commission proposed to revise its answer regulations, Rule 213, to 

provide an opportunity for parties to file answers to requests for extension of the time to 

take action under the Commission’s orders and regulations or seeking expedited action 

where the time to act on these request may fall sooner than the standard 15 day answer 

date. To provide an opportunity for interested parties to respond and facilitate the 

Commission’s response to such motions, the Commission proposed to shorten the answer 

period for these motions to five business days. In addition, the Commission proposed 

conforming revisions, in particular, revisions to the Secretary’s delegated authority under 

18 CFR 375.302(b), to clarify the Secretary’s authority to address shortened answer 

periods for requests for extension of time, consistent with the delegated authority of other 

office directors.17

11. In response to the NOPR, American Public Gas Association (APGA), Edison 

Electric Institute (EEI), Electric Power Supply Association (EPSA), Interstate Natural 

Gas Association (INGA), International Transmission Co. (ITC), MidAmerican Energy 

Holdings Company (MidAmerican), North American Electric Reliability Corp. (NERC), 

 

17 See, e.g., 18 CFR 375.307 (b)(1)(ii).
Docket No. RM12-2-000 - 8 -

PJM Interconnection, L.L.C. and Transmission Dependent Utility Systems (TDU)18

submitted comments. EPSA and PJM support the Commission’s proposal to consolidate 

and establish uniform procedures for filing privileged materials and establish 

two categories for filing purposes, citing efficient and easily implemented procedures 

to allow market participants to designate materials as confidential and provide assurance 

that commercially sensitive and other confidential information will be safe from 

inadvertent disclosure, without the need for procedural orders. The Commission will 

address other concerns raised in the comments in the discussion below. 

II. Regulations for Filing Privileged Materials. 

12. In this Final Rule, the Commission largely adopts the NOPR proposal to 

consolidate the Commission’s regulations for filing privileged materials in 

section 388.112 and establish procedures in that section for distribution of such materials 

pursuant to a protective agreement in proceedings with a right to intervene. The 

protective agreement provisions largely parallel the existing regulations governing 

complaints and answers. These regulations will expand those procedures to cover other 

types of filings, such as statutory public utility or pipeline filings, and protests in those 

filings, containing confidential information. With these revisions, the Commission is 

 

18 Consisting of Arkansas Electric Coop. Corp., Golden Spread Electric Coop., 

Inc., Kansas Electric Power Coop., Inc., North Carolina Electric Membership Corp.,

Power South Energy Coop. and Seminole Electric Coop., Inc.
Docket No. RM12-2-000 - 9 -

taking advantage of the technologies available to the Commission to safely and securely 

accept materials by designating them as privileged, while providing for limited use of the 

materials in proceedings in which other parties must review the materials, by requiring 

the filing party to make them available pursuant to a protective agreement. In instances 

where the filer elects to electronically file materials with a protective agreement, 

submission of the identical hard copy files to the Commission will no longer be 

necessary. Permitting privileged materials to be submitted via eFiling will facilitate entry 

of the documents into the Commission’s document repository, eLibrary, and will make 

them available to staff conducting analysis of the documents. Electronic filing will 

simplify retrieval of the documents in the course of the Commission’s duties because the 

documents may be accessed via the Commission electronic archive in eLibrary, and 

Commission staff will no longer have to retrieve hard copy documents from offsite 

document storage. This will avoid the resulting delay in obtaining materials.

13. The consolidated filing procedures, as well as the protective agreement provisions 

for proceedings in which a right to intervene exists are included in revised 

section 388.112. Revised section 388.112(a)(1) adopts the Commission’s long-standing 

usage of the term “privileged materials” to refer to information subject to an outstanding 

claim of exemption from mandatory disclosure under the Freedom of Information Act 
Docket No. RM12-2-000 - 10 -

(FOIA), including CEII.19 The changes adopted in this rule retain the disclaimer that by 

permitting the filing of privileged materials and 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 privilege or CEII status.20 Revised section 388.112(b) retains 

the requirement that a filer include a justification for privileged treatment in its filing, 

following the procedures posted on the Commission’s website.21 Revised 

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, with headings indicating privileged and 

CEII material.22 Section 388.112(b)(1) states:

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 header of the first page of the cover sheet or 

transmittal letter and of the pages or portions of the document 

 

19 See also 18 CFR 388.107(g); 18 CFR 388.113(c) (defining CEII as information 

that is exempt from mandatory disclosure under FOIA, providing that CEII be filed under 

section 388.112(b), and establishing specific procedures for making CEII available

pursuant to a non-disclosure agreement).

20 See revised section 388.112(c)(i).

21 See the Submission Guidelines on the Documents and Filing link at 

http://www.ferc.gov.

22 This provision follows the Commission’s existing practice for filing privileged 

materials in complaint proceedings in Rule 206, 18 CFR 385.206.
Docket No. RM12-2-000 - 11 -

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.”

This means that, when a person files a document containing privileged material, that 

person must prominently indicate the fact that the filing contains privileged material, 

using an appropriate header on the cover page of the filing. In most cases, the header 

must be included on the accompanying filing letter or first page of a pleading or motion, 

and on the separate cover of any portion of the document that contains privileged 

material, such as an affidavit, exhibit, attachment, etc. In addition, the individual pages 

should be marked to indicate that the page contains privileged material, and the material 

identified on the page.

14. The revised regulations make special provision in proceedings featuring a right to 

intervene, including complaint, certificate, merger and rate filings, to facilitate review of 

the privileged materials by intervening parties. In such proceedings, a person filing 

privileged material is required to include a public, redacted copy of the filing and a 

proposed form of protective agreement and serve these items on the appropriate persons, 

that is, those required by Commission rule or order, or by law.23 The revised regulations 

 

23 Revised section 388.112(b)(2). Under revised section 388.112(b)(2)(ii) service 

is to be made to 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.
Docket No. RM12-2-000 - 12 -

provide that the filing person will thereafter provide a copy of the privileged materials 

to interveners that request the material and execute the protective agreement within 

five days or file an objection.24

15. The Commission’s Model Protective Order may be used as a guide for protective 

agreements, and the Commission’s prior orders may also provide guidance as to how to 

address particular confidentiality concerns.25 The protective agreement should be self 

implementing and not require action or approval by the Commission. That is, persons 

wishing to rely on privileged material to support their filings should make provision for 

timely and adequate review of these materials under the protective agreement by 

intervening parties. While the Commission will resolve disputes to the extent necessary 

to carry out its statutory duties, the Commission intends that these standardized 

procedures will minimize the need for Commission action, with the accompanying delay 

in processing filings and applications subject to the Commission’s jurisdiction. Where a 

person wishing to use privileged materials has reason to anticipate objection or difficulty 

in such disclosure and review, it may be appropriate to negotiate in advance with likely 

 

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

other persons making a request.

25 The Model Protective Order developed by the Commission’s Office of 

Administrative Litigation is available at http://www.ferc.gov/legal/admin-lit/modelprotective-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 -

intervenors and attempt to resolve any disputes and come to agreement prior to making 

the filing. If acceptable terms for use of the material in a proceeding are negotiated prior 

to filing, the possibility of delay in processing the filing may be avoided.

16. The public version of the filing should be prepared with only the privileged 

information redacted to the extent practicable. If a document or filing contains both 

public and privileged material, the Commission expects filers to file a public version in 

which the privileged material has been removed or redacted thereby making the nonprivileged portion of a document available for use by the Commission and participants in 

the proceeding.26

17. The revised regulations incorporate 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.27 Thus, filers are not automatically required to provide intervenors with 

 

26 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). 

27 Under revised section 388.112(b)(2)(v), a participant’s access to privileged 

material submitted in a trial-type hearing or for settlement purposes continues to be 

governed by the presiding official’s protective order, according to policies established by 

the Commission’s Office of Administrative Law Judges. 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.
Docket No. RM12-2-000 - 14 -

such material.28 The revised 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 revised regulations retain provisions permitting the Commission 

to request full size maps in licensing applications under section 4.32(d) of its rules and 

regulations.29

18. Conforming changes were made throughout the Commission’s regulations, 

including revisions to reflect that section 388.112 provides the procedures for filing 

privileged materials. To simplify and clarify the regulations, the Commission largely 

avoided directly referencing section 388.112. Since section 388.112 is intended to apply 

to all submittals and filings containing privileged or CEII material, it is unnecessary to 

specify the provision that applies in the many parts of the regulations that refer to filing 

of privileged materials.30 Consequently, we adopt the NOPR proposals to remove 

 

28 See revised 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).

29 18 CFR 4.32(d). 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.

30 Changes to consolidate and supersede current procedures for filing privileged 

material are made to 18 CFR 33.8(a) and 33.9 (merger procedures), 18 CFR 35.37(f) 

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

duplicate provisions for filing privileged materials and consolidate and adopt the 

proposed provisions relating to submittal of and access to privileged material in 

section 388.112, as revised and discussed below.

31

19. The Commission responds to the comments filed in response to the NOPR below.

A. Designation of Confidential Materials as “Privileged”

20. In the NOPR, the Commission proposed to continue its long-standing practice of 

referring to confidential material as privileged.

1. Comments

21. A number of commenters object to the scope of the revised regulations, arguing 

that the privileged filing procedures, in particular the disclosure procedures developed for 

proceedings with a right to intervene, should not apply to materials eligible for common 

law evidentiary privileges such as attorney-client or work product privileges or CEII, 

which are subject to the disclosure procedures in 18 CFR 388.113.

 

(market based rate applications), 18 CFR 34.7 (filing requirements for application for 

approval of issuance of securities and assumptions of liabilities), 18 CFR 348.2(a) (oil 

pipeline market power application procedures), 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 made 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).

31 In certain instances, we have kept the reference as a guide to practitioners in a 

particular Commission program.
Docket No. RM12-2-000 - 16 -

2. Commission Response

22. The Commission disagrees with suggestions made by EEI and INGAA that use of 

the term privilege detracts from a filing party’s ability to assert a common law 

evidentiary privilege. The Commission’s power to withhold information from mandatory 

public disclosure is established by FOIA and presented in its rules and regulations, 

chiefly 18 CFR 388.107. The Commission’s long-standing practice has been to refer to 

materials subject to an outstanding claim of exemption from mandatory disclosure as 

privileged.32 The Commission is not aware of any confusion arising out of use of this 

term with materials claimed to be subject to a common law privilege, confidential 

business trade secrets or CEII. These types of materials are already addressed in the 

Commission’s FOIA regulations in the categories of materials for which a filer may 

request an exemption from mandatory disclosure under FOIA.33

 

32 E.g., Revision of Freedom of Information Act Rules, Order No. 488, FERC Stats 

& Regs ¶ 30,789 (1988) (establishing rules for requesting privileged treatment of 

documents claimed to be exempt from mandatory disclosure under FOIA).

33 In particular, see 18 CFR 388.107(d) (incorporating FOIA exemption 4 for trade 

secrets and commercial or financial information obtained from a person that are 

privileged or confidential); 18 CFR 388.107(g) (records or information compiled for law 

enforcement purposes, including information that could interfere with enforcement 

proceedings or deprive a person of a right to fair trial, if produced). See also Cargill, Inc. 

v. Saltville Gas Storage Co., L.L.C., 99 FERC ¶ 61,043, at PP 12-13 (2002) (describing 

privileged treatment under section 388.107(d) and FOIA exemption 4); Critical Energy 

Infrastructure Information, Order No. 630, FERC Stats. & Regs. ¶ 31,140, at P 14, order 

on reh’g, Order No. 630-A, FERC Stats. & Regs. ¶ 31,147 (2003) (discussing privileged 

treatment for CEII under FOIA exemption 4, and exemption 2 for “records related solely 

 (continued ...)
Docket No. RM12-2-000 - 17 -

23. The Commission likewise disagrees with EEI’s and INGAA’s suggestions that 

failure to make separate provision for information subject to a claim of common law 

privilege will create a risk of improper disclosure and loss of privilege.34 Indeed, as we 

stated in the NOPR, the term privileged material “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.”35 More importantly, the Commission is not requiring any filing party 

to submit materials that are subject to an evidentiary privilege in support of their filings 

or any confidential material. The choice whether to include such materials is left to the 

person making the filing whether to rely on such materials subject to the protective 

agreement disclosure provisions established in this Final Rule.36 If a party is asked to 

produce information in an investigation or discovery request that it believes is subject to a 

common law privilege, the proper course of action is to file a notice of that party’s 

 

to the internal personnel rules and practices of an agency” and exemption 7 for certain 

law enforcement information, including information which might jeopardize a person’s 

life or safety, if disclosed).

34 EEI at 5 (citing West Deptford Energy, LLC, 134 FERC ¶ 61,189 (2011) 

(seeking to protect sensitive market information); Mojave Pipeline Corp., 38 FERC 

¶ 61,249, at 61,842 (1987) (discussing Commission’s discovery regulations)). 

MidAmerican supports the EEI comments.

35 NOPR, FERC Stats. & Regs. ¶ 32,685 at P 16, item g & n.40 (discussing 

proposed § 388.112(b)(2)(iv)).

36 We note that filing information for which a common law privilege is asserted is 

likely to breach the confidentiality necessary to maintain the privilege. See generally

McCormick on Evidence § 93 (2007). 
Docket No. RM12-2-000 - 18 -

objection to producing the document, identifying the document and the justification of 

the claim, to facilitate review of the claim of privilege in a confidential setting to 

determine if the claim is justified.37

B. Establishing Separate Regulations Governing CEII Information 

24. In the NOPR, the Commission proposed to retain its current regulations 

(sections 285.206, 385.213 and 388.112) under which privileged and CEII information 

are subject to the same requirements with respect to disclosure.

25. EEI contends that CEII should be a separate category subject to separate 

disclosure procedures, as provided for in 18 CFR 388.113.

26. We do not find that using the same regulatory framework for “privileged 

materials” and “CEII” in section 388.112 will cloud the procedures in 18 CFR 388.113 

for handling CEII or that continuation of these procedures will not provide adequate 

protection for CEII. The Commission’s regulations specify that to qualify as CEII, the 

material must be “exempt from mandatory disclosure under the Freedom of Information 

Act.”38 Thus, CEII is already a subset of privileged material under the Commission’s 

regulations. Any party relying on CEII information in a filing needs to be prepared to 

provide that information to intervenors that need the information to understand the filing.

 

37 See, e.g., Independent Oil & Gas Association of West Virginia, 21 FERC 

¶ 63,030 (1983) (appointing special administrative law judge to perform in camera

review of privileged status of discovery materials, to preserve confidentiality). 

38 18 CFR 388.113(c)(1).
Docket No. RM12-2-000 - 19 -

27. We also disagree with EEI that CEII should be treated separately and distributed 

within a Commission proceeding under procedures modeled after the current CEII 

procedures in 18 CFR 388.113, providing for review of privilege requests with a 

determination.39 A filing party that has reason to question whether a party has a 

legitimate need to review information in a Commission proceeding may file an objection 

to disclosure to that person under section 388.112(b)(2)(iii)),40 which is equivalent to the 

existing and retained provision for notice of FOIA requests in section 388.112 (d).41

28. The Commission is not changing its rules for acquiring materials through a FOIA 

or CEII request, and materials that may be sought through the protective agreement 

procedures established herein also remain available through FOIA and CEII requests 

where appropriate. However, the Commission has determined that reliance on the 

existing CEII procedures exclusively would serve to delay the processing of filings and 

 

39 EEI at 4.

40 This provision states: “A filer, or any other person, may file an objection to 

disclosure, generally or to a particular person or persons who have sought intervention.” 

Indeed, this provision provides greater rights to the submitter than section 388.113, which 

does not provide for notice to the submitter prior to the determination by the CEII 

Coordinator.

41 This provision states: “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. A copy of this 

notice will be sent to the requester.”
Docket No. RM12-2-000 - 20 -

other pleadings in Commission proceedings. To facilitate timely distribution of materials 

without the potential for delay pending Commission review, participants who choose to 

submit CEII information as part of a Commission proceeding must follow the procedures 

provided in section 388.112. We find this a reasonable method to permit the use of such 

materials by the Commission and participants in Commission proceedings while 

protecting the confidentiality of the information.42

C. Form and Use of Protective Agreement

29. The Commission proposed that its existing procedures regarding protective 

agreements in its complaint and answer regulations be applied to other filings. Under 

these procedures, the filing party must provide a “proposed form of protective agreement 

to each entity that is to be served.”43 Although the Commission pointed to the Model 

Protective Order developed by the Commission’s Office of Administrative Litigation as a 

guide in developing protective agreements, it did not propose to require a uniform 

protective agreement.

1. Comments

30. Several commenters ask the Commission to establish one or more standard 

protective agreements, based on the Model Protective Order or tailored to meet particular 

 

42 Pennzoil Co. v. FPC, 534 F.2d 627, 632 (5th Cir. 1976) (requiring consideration 

of alternatives to full disclosure to provide consumers with adequate knowledge to 

participate in Commission proceedings).

43 18 CFR 385.206(e)(2), 385.213(c)(5)(i)(ii).
Docket No. RM12-2-000 - 21 -

circumstances.44 APGA predicts that, absent such a requirement, filers may attempt to 

frustrate the interests of requesting parties, who have limited time to respond. ITC 

supports the Commission’s proposal that the proposed protective agreement be self 

implementing and not require action by the Commission. ITC nevertheless supports use 

of the Model Protective Order, except when modifications are justified or no party 

objects. TDUs note that the NOPR does not provide guidance on what provisions may be 

appropriate for a protective agreement, and notes that clarification will help ensure 

customer access to information and avoid disputes.45 TDUs advocate adoption of the 

Model Protective Order as a basis for a protective agreement, with a requirement that 

parties justify any change.

31. MidAmerican suggests refinements to the requirement that a proposed form of 

protective agreement be served on each entity that is required to be served with the filing, 

arguing that service need not be required after the first time the protective agreement is 

used.46 In particular, MidAmerican argues that such a requirement is not needed when a 

party is using information that it obtained using the protective agreement provided by the 

original filer.

 

44 E.g., APGA, EEI, ITC. APGA provides draft text to implement its proposals. 

45 TDUs at 3.

46 MidAmerican at 4.
Docket No. RM12-2-000 - 22 -

32. APGA urges the Commission to require that a party may execute a nonconforming agreement under protest, with issues to be resolved at a later date by the 

Commission.47 TDUs likewise argue that parties should have access to materials while 

any objection is outstanding. TDUs ask the Commission to ensure access to materials 

during negotiations over terms of delivery, so that a party challenging a protective 

agreement may still participate effectively in the proceeding. TDUs state that such an 

approach will permit a party to participate meaningfully in the relevant docket without 

sacrificing the opportunity to test a filing party’s privilege claims.48

33. APGA urges the Commission to lessen the requirements for signing the protective 

agreement and receiving the privileged materials and permit any person to whom service 

is required under the regulations to seek access, rather than require filing of an 

intervention.49 According to APGA, requiring a person to draft and file an intervention 

wastes time and should not be a condition to receiving the material. APGA argues that 

the fact that a person is required to be served justifies access to the material. EEI, on the 

other hand, asks that the Commission not require release of privileged material to persons 

or organizations that have not been granted intervenor status.50 EEI seeks to avoid 

 

47 APGA at 3.

48 TDUs at 5.

49 APGA at 3-4.

50 EEI at 8.
Docket No. RM12-2-000 - 23 -

conflict with the Commission’s regulations that permit a party 15 days to oppose a 

motion to intervene. EEI asks the Commission to clarify that intervention in one subdocket would not provide the right to access material in another sub-docket.51

34. APGA argues that the Commission’s proposal requiring delivery of privileged 

materials within five days after a protective agreement is signed is insufficient to ensure 

that interested persons have timely access to privileged materials filed in pipeline filings 

due to the short (30-day) statutory action period.52 APGA does not believe that its 

suggestions prejudice the rights of filers to protect privileged material, but are intended to 

facilitate meaningful access by interested entities.53 

35. Citing procedures developed in applying the Model Protective Order, TDUs ask 

the Commission to clarify that the burden of proof is on the party asserting a claim of 

privilege in any dispute of privileged status. TDUs also question whether the provision 

permitting a party to object to the terms in a protective agreement is effective, given 

statutory deadlines. TDUs ask the Commission to specify limits on the terms that may be 

included in a protective agreement, so that parties will not be forced to agree to unduly 

restrictive access or engage in fruitless litigation. TDUs argue that this is needed 

 

51 EEI at 8.

52 APGA at 2 (citing NGA section 4, 15 U.S.C. §§ 717c(d) and (e)).

53 APGA at 5.
Docket No. RM12-2-000 - 24 -

because, unlike in a proceeding overseen by an administrative law judge, the Commission 

cannot delay a statutory deadline to provide time to resolve a dispute.54

2. Commission Response

a. Standard Protective Agreement

36. The Commission declines to adopt a standard protective agreement or provide 

detailed guidance as to appropriate departures or additions to the Model Protective Order 

in this proceeding, in light of the need for flexibility in handling different types of 

privileged material. In the NOPR, the Commission suggested that parties filing 

privileged materials in a proceeding with a right to intervene may use the Office of 

Administrative Litigation’s Model Protective Order as a guide for protective 

agreements.55 Parties choosing to use a protective agreement based on the Model 

Protective Order may avoid potential litigation over the terms of the agreement that may 

delay the processing of their filing. For example, disputes that cannot be resolved prior 

to filing or through the protective agreement procedures may lead to further procedures 

such as suspending a filing, setting the proceeding for hearing, deficiency letters, and 

requests for additional procedures or information. 

37. In the event a protective agreement is protested, the Commission has reviewed 

proposed protective orders in other contexts and provided for appropriate additions to 

 

54 TDUs at 4.

55 Available at http://www.ferc.gov/legal/admin-lit/model-protective-order.doc . 
Docket No. RM12-2-000 - 25 -

address particular confidentiality concerns.56 Parties wishing to file privileged material 

may consult the Commission’s prior orders for approaches that have been employed to 

address particular concerns that arose in prior proceedings.

b. Right to Object to Protective Agreement and Privileged 

Treatment

38. APGA expresses concern that a participant may be bound by undesirable terms of 

a protective agreement, prior to having the opportunity to object. We do not find that 

signing a protective agreement should result in a waiver of the right to challenge the 

privileged status of the information. This procedure ensures solely that the case can be 

processed, not that it result in a waiver of any procedural rights. We note that the Model 

Protective Order contains procedures under which the signatory reserves its right to 

challenge the privileged status of documents covered by the agreement, and we 

encourage parties to include such provisions in their protective agreements. Should a 

protective agreement purport to contain such a waiver requriement, a party may preserve 

its rights by filing an objection under section 388.112(b)(2)(iii) and the Commission can 

then require the protective agreement be revised.

 

56 E.g., Illinois v. Exelon Generation Co., LLC, 119 FERC ¶ 61,027 (2007) 

(proposing protective order restricting access to certain materials by competitive duty 

personnel). 
Docket No. RM12-2-000 - 26 -

39. TDU’s are concerned that the right to object to a protective agreement may not be 

effective given statutory deadlines. As indicated above, the Commission has procedures 

that may be used to resolve such disputes fairly.

c. Requirement to File an Intervention

40. We decline to adopt the revision proposed by APGA that a filing party must 

provide privileged materials to any person to whom service is required on request, rather 

than only those who have filed an intervention. As Mid-American suggests, the 

regulations provide that parties who are entitled to receive service will receive a copy of 

the filing with the protective order when served.57 It is not too great a burden to require 

such parties to intervene prior to being given a copy of the privileged information. Filing 

an intervention is not a great burden. Indeed, the Commission has provided for an 

electronic document-less form of intervention that can be filled out very quickly. The 

requirement for intervention ensures that copies of the confidential material are provided 

only to those with sufficient interest in the proceeding and provides the Commission with 

information about a party’s interest in the privileged materials in the event an objection to 

disclosure is filed.

 

57 Section 388.112 (b)(2) (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”).
Docket No. RM12-2-000 - 27 -

41. We likewise reject EEI’s suggestion that materials should not be provided until an 

intervention has been granted. We do not believe that lack of intervenor status alone 

provides justification for refusing to provide the privileged materials.58 Furthermore, 

waiting for intervention to be granted could unnecessarily delay an interested person’s 

access to privileged materials. As APGA notes, this could be a particular burden in 

Natural Gas Act cases which must be decided within 30 days. The intervention itself will 

provide the party filing privileged materials with information to determine whether a 

requesting party has an interest to support disclosure in the event that an objection to 

disclosure is filed under section 388.112(d)(iii).

d. Other Issues

42. In response to EEI’s inquiry whether a protective agreement may apply in separate 

subdockets, the filer should determine whether a protective agreement signed in one 

subdocket is sufficient for the information that may be produced in another subdocket. 

The different character of such information may require a somewhat different form of 

protective agreement.

43. TDU argues that the burden of proof should be on the party seeking privileged 

status. This rulemaking does not change existing procedures regarding assignment of 

burdens. While the determination as to the applicability of the privileged designation is 

 

58 Under Rule 214, an intervenor obtains party status fifteen days after a timely 

intervention is filed, if no opposition is filed. 18 CFR 385.203.
Docket No. RM12-2-000 - 28 -

not a hearing with formal burdens of proof, the applicant needs to justify why the 

information is confidential under the FOIA categories.59

D. Consistency with Discovery Procedures used in Administrative 

Proceedings

44. In the NOPR, the Commission proposed that, for filings made prior to hearing, the 

party filing the privileged material will propose a form of protective agreement. 

However, in proceedings set for trial-type hearing, the NOPR proposed to leave intact the 

authority of the ALJ to administer the hearing and determine the appropriate scope of a 

protective order.

1. Comments

45. TDUs suggest that the Commission is inconsistent in removing the designation 

“Protected Materials” covered by an ALJ-approved protective order and treating these 

materials as privileged. It asserts that an ALJ’s protective order may cover a broader 

range of materials than filings in proceedings not set for hearing. TDUs explain that, in 

discovery, the term protected materials refers to materials that customarily are treated by 

a participant as sensitive or proprietary, which are not available to the public and which, 

if disclosed freely, would subject the participant to competitive harm.60 TDUs ask the 

Commission to clarify that eliminating the category “protected materials” is for filing 

 

59 18 CFR 388.112(d) (providing an applicant for privilege treatment the ability to 

respond to a requested disclosure). 

60 TDUs at 8 & n.5.
Docket No. RM12-2-000 - 29 -

purposes and does not expand the definition of privileged materials pursuant to 

section 388.112.61 EPSA states that establishing separate procedures for materials 

provided pursuant to a protective order issued by an ALJ may lead to confusion and 

inadvertent disclosure.

2. Commission Response

46. Revised section 388.112(b)(2)(v), adopted in this proceeding, states, “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.” The term protected material is a colloquial term 

that some parties apply to materials covered by a protective order. For consistency, the 

Commission has used the word “privileged,” as it existed in the regulations prior to this 

rule, to refer to all material for which confidential treatment is claimed. But the use of 

the term privileged does not change the scope of material eligible for confidential 

treatment. 

47. TDUs assert that the discovery materials that may be protected by an 

administrative law judge’s protective order include materials that customarily are treated 

by a participant as sensitive or proprietary, which are not available to the public and 

which, if disclosed freely, would subject the participant to competitive harm. This 

 

61 TDUs at 9.
Docket No. RM12-2-000 - 30 -

description is comparable to the type of information that qualifies for confidential 

treatment under FOIA Exemption No. 4, which protects information where disclosure is 

likely “to cause substantial harm to the competitive position of the person from whom the 

information was obtained.”62 We therefore find no reason to apply a different standard to 

materials collected during discovery than filed materials in proceedings not in hearing.63

E. Procedures for Distributing Privileged Information

48. The NOPR proposed procedures obtaining access to material that is filed as 

privileged in complaint proceedings and in any proceeding with a right to intervene. The 

Commission proposed that any participant or person filing an intervention in the

proceeding may request the filer to provide a copy of the complete, non-public version of 

the document, by providing an executed copy of the protective agreement and showing 

appropriate party, participant or intervenor status. The proposed regulations provide that 

the filer provide a copy of the complete, non-public document to the requesting person 

within five days of receiving the request, if no objection is filed.

 

62 See Reporting of Natural Gas Sales to the California Market, 96 FERC ¶ 61,119 

at 61,466-68 (2001) (citing National Parks and Conservation Association v. Morton, 498 

F.2d 765, 770 (D.C. Cir. 1974)). FOIA Exemption No. 4 is incorporated in the 

Commission’s regulations in section 388.107(d).

63 Indeed, it would be inconsistent for the Commission to use a different standard 

for defining material submitted in an application compared with material submitted 

through an ALJ proceeding. The same FOIA provisions apply to both sets of information 

and an FOIA request can be filed for material submitted during discovery in an 

administrative proceeding.
Docket No. RM12-2-000 - 31 -

1. Comments

49. To provide adequate due process for responses to requests for information, EEI 

asks the Commission to modify the requirement that confidential information be released 

“within” five days, to a requirement that the information not be released until the 5th 

business day, in order to permit parties to object, and suggests the Commission provide a 

bit more time for objections to be lodged.64 EEI notes that in the NOPR the Commission 

proposed to revise 18 CFR 388.112 to give parties that have submitted privileged 

material to FERC staff at least five calendar days to respond to requests for information 

and a separate five calendar days to respond to a proposed disclosure. See 18 C.F.R. 

388.112(c)(2). EEI notes that the Commission has not afforded the same protection for 

information filed under section 388.112(b)(2) and states that the Commission should 

apply the same protective procedures to all privileged materials submitted to staff or to 

the Commission.65 To provide adequate due process rights for responses to requests for 

information, EEI states that the Commission should withhold a proposed release of 

confidential information if the filing party files notice of intent to seek judicial review to 

block the release.66

 

64 EEI at 9.

65 Id.

66 EEI at 10.
Docket No. RM12-2-000 - 32 -

50. TDUs object to the five day delay in delivering privileged materials after receipt 

of an executed copy of the non-disclosure agreement; instead they request delivery by the 

next business day. TDUs argue that delay prejudices the party seeking the information, 

by providing limited time for review.67 APGA similarly recommends that the proposed 

5-day period for delivering privileged materials be shortened to 24 hours. APGA states 

that it only takes minutes to deliver the non-redacted version which was filed with the 

Commission and there is no basis for delay, given the short time frame to review and 

address the privileged material in a pleading.68 APGA states that, because the contents of 

suspension orders may depend on the contents of protests, that it is not sufficient for 

protesting parties to receive the material at or after the intervention deadline. APGA

suggests a typical protest schedule in which a section 4 rate case is noticed after 

five days, interventions are due within 13 days and an order issued in 30, and asserts that 

there is no way to secure and review the filing, draft an intervention, execute the 

protective agreement and prepare a protest based on the privileged material.69

51. INGAA objects to its reading of the proposed regulations to require service of 

“fully redacted” documents. According to INGAA, redacting an entire document can be 

burdensome to the filer and circulation of the document does not provide any benefit to 

 

67 TDUs at 5.

68 APGA at 4.

69 Id. at 4-5.
Docket No. RM12-2-000 - 33 -

recipients.70 INGAA asks that filers be permitted to comply with the requirement in 

proposed section 388.112(b)(1) by submitting in its cover page requesting privileged 

treatment, a statement that the entire document qualifies for privileged, confidential 

and/or CEII treatment and a short title or description of the type of information it 

contains. INGAA asks that such a disclosure meet the Commission’s objective under s 

388.112(b)(1) to provide a redacted version “to the extent practicable.”71

52. EEI responds to the Commission’s observation in the NOPR that a failure by the 

filing party to afford intervenors a meaningful opportunity to review confidential 

information under a protective agreement could lead to suspension of the filing, rejection, 

or other delays in processing an application. EEI acknowledges some delay may be 

necessary to respond to requests for confidential information, but states that such delay 

should not be punitive and a filer should not be prejudiced through rejection or 

suspension, as long as the confidential information designation and ensuing objection to 

release of the information are made in good faith.72

53. According to EEI, parties seeking to justify non-disclosure of privileged materials 

should only be required to submit a brief, good-faith articulation of the reason for nondisclosure, but that in the event the designation is challenged or anyone seeks access to 

 

70 INGAA at 5.

71 Id. at 6.

72 EEI at 10.
Docket No. RM12-2-000 - 34 -

the information, the filing party will have the right to expand and supplement the 

justification prior to Commission action.73

54. ITC suggests that, in the event that a delay in disclosure is caused by a dispute 

over the protective agreement, a party would not be harmed if the dispute were to result 

in a late filing, such as an answer to a complaint.74 

2. Commission Response

a. Five Day Distribution

55. Various parties filed comments expressing concerns with the distribution 

procedures. Several parties raise issues with respect to the requirement to distribute 

privileged information within five days. EEI wants to mandate that the information not 

be released in less than five days, while TDU and APGA argue that the five day 

requirement should be shortened. We find that the five day requirement establishes a 

reasonable balance between all the interests.

56. With respect to EEI’s suggestion that the five days be made mandatory to permit 

parties to object to disclosure, we see no reason to adopt this rule for all filings. As other 

commenters note, early release of information is preferable because it provides other 

parties with more time to evaluate the filing. To the extent that EEI’s concern is that the 

filing party is claiming confidentiality for third-party information in its possession, the 

 

73 EEI at 8.

74 ITC at 3.
Docket No. RM12-2-000 - 35 -

filing party ought to inform the third-party before filing, should consult with the thirdparty as to the appropriate form of protective agreement for the information, and may 

want to choose the full five days to permit a response. 

57. We similarly reject the TDU and APGA arguments that the information be 

disclosed in less than five days through electronic delivery. While immediate electronic 

service may be appropriate for certain materials, a filer may have a legitimate interest in 

not providing such material electronically. Even in natural gas cases, five days from the 

date of the request should provide sufficient opportunity to obtain and review such 

information.75 In those cases in which a party shows that given the extensive nature of 

the privileged information, it did not have adequate time to review the material, the 

Commission has procedures to ensure an adequate review period.

b. Redaction of Entire Document

58. INGAA requests that the Commission clarify that the requirement for filing a 

redacted public copy still permits, in appropriate circumstances, the filing party in the 

transmittal letter to provide a description of the document and identify the entire 

document as privileged. The regulation requires that a redacted public version be filed, to 

the extent practicable. The regulation, therefore, would not preclude a filer from 

 

75 As APGA has noted, many of these parties will be served by the pipeline and 

therefore will have immediate notice that confidential information is included. 

Moreover, the Commission issues notices of these filings very shortly after they are filed.
Docket No. RM12-2-000 - 36 -

identifying the entire document as privileged if it, in good faith, is unable to separate 

sensitive or confidential material from the remainder of the document.

c. Opportunity to Respond

59. The Commission declines to adopt EEI’s suggestion that filing parties be provided 

with an opportunity to respond to requests for information by arguing their justification 

for withholding material. Under the Commission’s current regulations a filing party must 

include in its filing a justification for privileged treatment, demonstrating that the 

material is exempt from mandatory disclosure under FOIA according to the categories 

defined in section 388.107 of the Commission’s Rules and Regulations. The procedures 

promulgated in this proceeding continue that practice. If a filing party objects to 

disclosure to a particular party, it may file an objection under section 388.112(b)(2)(iii) as 

appropriate. Furthermore, a non-filing party may object to the privileged status of the 

materials under review. The Commission may address each of these objections by 

issuing an order, by which time the parties should have had time to assert their interests 

in their pleadings. However, we emphasize that failure to resolve such disputes may 

result in delay in processing the filing.

d. Need for Additional Procedures

60. EEI is concerned that delaying approval of filings due to the submission of 

privileged information may be “punitive.” The Commission needs to provide due 

process to allow for adequate review of all filings and that includes filings containing 

privileged information. If parties can demonstrate that they have not had sufficient time 
Docket No. RM12-2-000 - 37 -

to review a filing, the Commission may adopt whatever procedures it deems appropriate 

to ensure due process to all parties. Indeed, the Commission is adopting this rule to 

clarify procedures for handling privileged material to expedite proceedings. As noted in 

the NOPR, the Commission previously has preceded on an ad hoc basis when addressing 

filings (other than complaints and answers) containing privileged information which has 

contributed to delay in the Commission’s ability to process such filings expeditiously. To 

permit parties to participate fully in these proceedings, the Commission has issued special 

orders or notices to ensure access to privileged material.

76

 By clarifying the filing 

procedures for privileged information, this rule will reduce the need to use additional 

processes and therefore should expedite, not delay, proceedings.

F. NERC Notices of Penalty and Other Communications

1. Comments

61. NERC asks the Commission to clarify that the procedures proposed in the NOPR 

will not apply to NERC’s filing of a notice of penalty, to filings of remediated issues in a 

Find, Fix, Track and Report spreadsheet, or to other communications or exchanges of 

documents between NERC and FERC that are not made through formal filings.77

 

76 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); PJM Interconnection, L.L.C., Notice of Filing, Docket No. ER04-539-002 

(Apr. 30, 2004).

77 NERC at 3 (discussing FPA section 215(e); 18 CFR § 39.7(c)(2)).
Docket No. RM12-2-000 - 38 -

62. According to NERC, it submits notices of penalty and Find, Fix, Track reports on 

a monthly basis, and points out that it treats such materials as non-public under 18 CFR 

39.7(b)(4). NERC’s practice is to file some portion of the notices and reports as nonpublic, absent a public hearing sought by the Commission or a penalized entity under 

section 39.7(e)(1 and 7). NERC requests that the Commission clarify that NERC is not 

required to submit a protective agreement with Notice of Penalty or Find, Fix, Track 

filings or other communications or documents that are not exchanged through formal 

filings. According to NERC, the Commission’s decision to review a Notice of Penalty 

may include instructions for NERC to submit a protective agreement.

63. NERC also asks the Commission to clarify that NERC’s regular nonpublic 

exchanges of information exchanged through means other than formal filings do not 

require a protective agreement.78

2. Commission Response

64. We agree that NERC need not submit a protective agreement when filing its 

notices of penalties. The protective agreement procedures apply in the case of 

regulations that apply to “any proceeding to which a right to intervention exists.” With 

respect to NERC’s filing of notices of penalty, no right to intervene exists unless the 

Commission issues an order initiating review of the filing and provides for public 

 

78 Id.
Docket No. RM12-2-000 - 39 -

intervention and comment.79 If the Commission establishes such a proceeding, it will 

establish whatever procedures with respect to the materials are necessary.

65. As for NERC’s remaining concern with respect to materials distributed in informal 

settings, NERC states that the communications that it refers to are not made through 

formal filings. Consequently, we confirm that the protective agreement requirement does

not apply. This rulemaking does not revise the applicable FOIA procedures and the 

Commission will continue to abide by those procedures.

G. Electronic Filing Procedures

66. EEI proposes various revisions to the Commission’s electronic filing procedures, 

such as the types of media that may be used, extension of electronic filing procedures to 

certain Commission forms under 18 CFR 385.2011. In addition, EEI supports the 

Commission broadly preserving the option to file on paper for parties that need such an 

option and encourages the Commission to minimize requirements that limit flexibility. 

67. Revising the Commission’s electronic filing procedures and treatment of Forms is 

beyond the scope of this proceeding, and the Commission is not prepared to implement 

 

79 18 CFR § 39.7(e)(1); see also North American Electric Reliability Corp., Order 

Initiating Review of Notice of Penalty, 136 FERC ¶ 61,135 (2011); Rules Concerning 

Certification of the Electric Reliability Organization, Order No. 672, FERC Stats. 

& Regs. ¶ 31,204, at PP 510-11 (2006) (noting that Commission conducts initial review 

of NERC Notice of Penalty as nonpublic pursuant to its FPA Part 1b investigatory 

authority, until an on the record hearing is provided for).
Docket No. RM12-2-000 - 40 -

such changes in this proceeding. Filings may still be made on paper except in those 

circumstances (tariffs, forms, etc) where the Commission requires electronic filing.

H. Prospective Effect

68. EEI asks the Commission to clarify that the new regulations apply prospectively 

only as to new dockets or sub-dockets and that parties that have already made filings 

should not be compelled to provide a protective agreement after-the-fact.80

69. We agree that these regulations will apply only to filings made after their 

implementation. With respect to filings made previously, the procedures adopted in those 

proceedings will need to be followed.

I. Changes to Text of Proposed Regulations

70. The Commission has made three changes to the text of the revised regulations in 

response to commenters’ suggestions for changes in the regulatory text, as discussed 

below. The remaining suggestions are also discussed in turn below.

1. Changes Adopted 

71. MidAmerican proposes the following underlined clarifications to reflect that a 

single protective agreement may apply to all materials filed in a proceeding: “The filer 

must provide the public version of the document and its proposed form of protective 

agreement, if an applicable protective agreement does not currently exist, to each entity 

 

80 EEI at 7-8.
Docket No. RM12-2-000 - 41 -

that is required to be served with the filing. If an applicable protective agreement 

currently exists, the filer must identify where the protective agreement can be obtained.”

72. The Commission agrees, based on the provisions in the Model Protective Order, 

that one protective agreement may be drafted to apply to all materials in a proceeding. 

Consequently, we have revised the final regulations to accommodate such use.

73. EEI asks the Commission to modify 18 CFR 34.7, which it claims requires paper 

filings of privileged information submitted in applications for authorization to issue 

securities and assumptions of liability under FPA section 204. EEI asks the Commission 

to cross reference 18 CFR 388.112.

74. Section 34.7 states that applications for authorization to issue securities and 

assumptions of liability under section 204 should be filed in accordance with the filing 

procedures posted on the Commission’s web site, in reflection of the Commission’s 

moving such instructions out of its regulations and placing them on the internet. 

Consistent with other regulations, we add a sentence to section 34.7 to reflect that 

privileged materials may be filed electronically.

75. EEI proposes that the Commission consult with the Counsel on Environmental 

Quality as to its proposal to remove the requirement in sections 380.12 and 380.16 that 

“The cover and relevant pages or portions of the report should be clearly labeled in bold 
Docket No. RM12-2-000 - 42 -

lettering: ‘CONTAINS PRIVILEGED INFORMATION—DO NOT RELEASE.’”81 

According to EEI, the Commission must consult with the Counsel on Environmental 

Quality before changing National Environmental Policy Act regulations, including 

18 CFR Part 380.82

76. The NOPR proposed to adopt generic instructions in section 388.112 to permit a 

party to customize their headings to reflect the privilege being claimed and identify the 

material in question. Thus, the instruction may apply to either confidential trade secrets 

or CEII. As for EEI’s concern, while we see no inconsistency with the revised 

instruction and the requirements in Part 380, we will not revise the labeling instructions 

in the current versions of sections 380.12(f)(4) and 380.16(f)(4), in order not to run afoul 

of the environmental regulation review requirements.

2. Proposed Changes Not Accepted

77. MidAmerican cites inconsistency in section 388.112, which refers to “procedures 

for filing and obtaining privileged and CEII material” rather than “privileged material.”83 

 

81 EEI at 10. In the NOPR, the Commission proposed to replace this with the 

general requirement in 388.112 that “The cover page and relevant pages or portions of 

the filing 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 CEII, as appropriate, and marked ‘DO NOT RELEASE.’”

82 EEI at 10 (citing Counsel on Environmental Quality regulations at 40 CFR 

1507.3(a)). 

83 MidAmerican at 3.
Docket No. RM12-2-000 - 43 -

Since CEII is a sub-set of privileged materials, we see no confusion as the procedures we 

establish here apply to both, and we will not make the requested change.84

78. Mid-American objects to what is sees as inconsistent usage, noting the lack of a 

reference to “Privileged Materials” in section 388.112(b) and the requirements instead to 

label a filed document, “indicating that it contains privileged, confidential and/or Critical 

Energy Infrastructure Information, as appropriate, and marked ‘DO NOT RELEASE.’”85

According to Mid-American use of the term confidential and describing material as 

privileged make the section hard to follow. The Commission disagrees, but clarifies that 

the provision was drafted to permit the use and filing of several categories of privileged 

material and permit filing parties to customize the notification that a filing contains 

privileged material to fit their circumstances. 

79. TDUs state that the Commission should include a cross-reference to Rule 410, 

18 CFR 385.410, and section 388.112 in Rules 206 and 213 to avoid ambiguity, 18 CFR 

385.206 and 18 CFR 385.213. According to TDUs, a cross-reference would clarify that 

the treatment of information for which a claim of confidentiality or privilege is asserted 

will be governed by Rule 410 and section 388.112. In addition TDUs support retaining 

 

84 Nevertheless, clarifying changes were made throughout the regulations.

85 MidAmerican at 3.
Docket No. RM12-2-000 - 44 -

the reference to Rule 410 and section 388.112 in Rule 606, 18 CFR § 385.606, governing 

the treatment of privileged and protected information in settlement proceedings.86

80. The Commission’s intention is to consolidate its regulations for filing privileged 

materials in section 388.112. Consequently, we found it unnecessary to reference 

section 388.112 as the regulation describing how one should file privileged materials, 

because section 388.112 is the only regulation defining how such materials should be 

handled.

III. Revised Time for Filing Answers to Motions for Extensions of Time or 

Expedited Action Dates

81. To facilitate the Commission’s ability to respond to motions requesting extensions 

of time or shortened time to take actions required under the Commission’s orders or 

regulation, the Commission proposed to revise Rule 213 in its Rules of Practice and 

Procedure to provide that answers to motions requesting an extension of time as well as 

motions seeking to expedite a deadline, that is, shorten the period of time in which action 

is to occur, will be due in five days.87 The Commission explained that frequently, parties 

filing such motions do not know 15 days before a filing is due that they require a change 

in compliance time periods, and these motions are not controversial or complicated. The 

Commission stated that, with a 15-day comment period, the Secretary of the Commission 

 

86 TDUs at 9.

87 See revised Rule 213, 18 CFR 385.213. 
Docket No. RM12-2-000 - 45 -

(under delegated authority) has had to issue notices shortening comment periods on such 

motions. Since motions regarding the time period for responding are not controversial or 

complex, five days appeared to provide a reasonable time for responses that will 

eliminate the burden and additional delay created by the need for the Secretary to issue a 

notice shortening the comment period.

82. In addition, the NOPR proposed a related change to the Secretary’s delegation 

authority under 18 CFR 375.302(b) to clarify that the Secretary of the Commission has 

authority to address requests for shortened answer periods and expedite requests to 

extend or shorten the times to take actions consistent with the delegated authority of other 

office directors.88 Exercise of such authority will help expedite requests for extension of 

time. 

1. Comments

83. INGAA, APGA, PJM, and ITC generally support the Commission’s proposal to 

reduce the time for responding to requests for extensions of time. APGA finds the 

five day answer period appropriate in most cases.89 PJM suggests lengthening the time 

for response to five business days. While supporting the five days, ITC suggests that for

 

88 See 18 CFR 375.307(b)(1)(ii).

89 MidAmerican notes that the summary of section 385.213(d) set forth in P 4 of 

the NOPR states that the revised regulations apply to all motions requesting an extension 

of time, not just to those “for which the existing time for compliance may fall fifteen days 

or fewer from the date of filing.” 
Docket No. RM12-2-000 - 46 -

circumstances where action may be needed in a shorter time period, the filing party be 

permitted to request a shorter time period in its filing.

84. INGAA objects to the removal of the provision in the secretary’s delegated 

authority in 18 CFR 375.302(b) stating, “Absent a waiver, no answers [to complaints, 

petitions, motions and other documents] will be required to be filed by a party within less 

than ten days after the date of service of the document.” INGAA notes that removal of 

this provision could permit the Secretary to shorten any answer period, including the time 

for responding to a complaint, to any time period. INGAA describes this as a wholesale 

change, which it states the Commission has failed to justify.

90

 INGAA asks the 

Commission to maintain the minimum ten-day answer period for complaints, petitions, 

motions and other documents that do not request an extension of time.

2. Commission Response

85. The Commission will adopt the revised regulation to provide for shortened answer 

periods to the motions for extensions of time or requesting expedited action and to clarify 

the Secretary’s authority to act on such motions. We find that the five day answer period 

strikes an appropriate balance for the need to expedite action on such requests while 

preserving interested parties ability to respond to such requests. Since motions regarding 

time periods are not controversial or complex, five days provides a reasonable time for 

 

90 INGAA at 3.
Docket No. RM12-2-000 - 47 -

answers.

91

 The five-day notice period also will help reduce the burden and delay caused 

by the Secretary of the Commission (under delegated authority) having to issue notices 

shortening answer periods.

86. ITC requests that the Commission affirm that parties may request a shortened 

answer period. While such a filing is permitted, the purpose of the revised regulation is 

to eliminate the need to issue notices shortening answer periods. Also, given the time it 

takes to issue such a notice, it will be difficult, in any but extreme cases, for the Secretary 

to issue a notice shortening an answer period in time to provide parties the ability to 

respond. Participants contemplating making filings to change time periods should be 

able to anticipate the need for such a filing five days in advance.

87. As for INGAA’s concern with the Commission’s revision of the Secretary’s 

delegated authority, we affirm our decision. As noted in the NOPR, the change to the 

Secretary’s delegated authority will clarify that the Secretary has authority to respond to 

motions in a shortened time frame when necessary to respond to a request for extension 

of time or expedited action period. While INGAA is correct that the change would also 

permit the Secretary to shorten the time for filing answers in other contexts, we anticipate 

that the Secretary would shorten the time for action only when justified and will do so in 

such a way as not to prejudice any party. 

 

91 In most cases, such filings are not opposed.
Docket No. RM12-2-000 - 48 -

IV. Information Collection Statement

88. Office of Management and Budget (OMB) regulations require OMB to approve 

certain information collection requirements imposed by agency rule.92 This rule does not 

contain any information collection requirements and compliance with the OMB 

regulations is thus not required. The Commission anticipates this rulemaking will reduce 

the burden of making filings because it will allow filers who previously filed on paper to 

take advantage of the efficiencies and ease associated with electronic submission in the

standardized procedures. In addition, this Final Rule does not make any substantive or 

material changes to requirements specified in the NOPR, where the Commission 

similarly found no information collection requirements.

89. EEI suggests that the requirement to submit a protective agreement along with the 

filing of privileged materials embodies a new burden in the Commission’s Paperwork 

Reduction Act analysis.93 The Commission disagrees. The Commission is not requiring 

any party to file and rely on privileged material in proceedings before the Commission. 

Furthermore, the requirement to use a protective agreement to facilitate meaningful 

review of the material by interested parties has long been a part of our regulations 

pertaining to the filing of complaints and answers. Additionally, those regulations have 

 

92 5 CFR 1320.12. 

93 EEI at 8. Paperwork Reduction Act of 1995, section 3507(d), 44 U.S.C. 

3507(d). 
Docket No. RM12-2-000 - 49 -

served as a model in practice for parties filing privileged materials in other proceedings. 

Thus, the requirement to provide and to use a protective agreement represents a 

codification of the Commission’s existing practice under which a party seeking to rely on 

privileged materials must provide interested persons the opportunity for meaningful 

review of privileged materials in Commission proceedings, which typically occurs

through the use of a protective agreement. Therefore, we find that codifying the 

requirement to deliver a protective agreement does not represent a new burden, but 

simply reflects the Commission’s existing practice of applying the procedures developed 

in the complaint regulations on a case-by-case basis for all filings in which a right of 

intervention exists. Furthermore, by facilitating filing and service of the protective 

agreement by electronic means, the revised regulations minimize any impact and reduce 

the burden of using privileged materials in Commission proceedings.

90. The Commission will submit a copy of this Final Rule to OMB only for 

informational purposes. 

V. Environmental Analysis

91. 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.94 This rule would not represent a major federal action having 

 

94 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 - 50 -

a significant adverse effect on the quality of the human environment under the 

Commission’s regulations implementing the National Environmental Policy Act. Part 

380 of the Commission’s regulations lists exemptions to the requirement to draft an 

Environmental Analysis or Environmental Impact Statement. Included is an exemption 

for procedural, ministerial or internal administrative actions.95 This rulemaking is 

exempt under that provision.

VI. Regulatory Flexibility Act

92. The Regulatory Flexibility Act of 1980 (RFA)96 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 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.97 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, 

 

95 18 CFR 380.4(1) and (5).

96 5 U.S.C. §§ 601-612.

97 13 CFR 121.101 (2011).
Docket No. RM12-2-000 - 51 -

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.98

93. The Commission finds this rule concerns procedural matters and expects it to 

increase the ease and convenience of filing.

99

 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.

VII. Document Availability

94. In addition to publishing the full text of this document in the Federal Register, the 

Commission provides all interested persons an opportunity to view and/or print the 

contents of this document via the Internet through FERC’s Home Page 

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

hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, 

Washington, DC 20426.

95. From FERC’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 

 

98 13 CFR 121.201, Sector 22 Utilities & n.1.

99 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 - 52 -

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.

96. User assistance is available for eLibrary and the FERC’s website during normal 

business hours from FERC Online Support at (202)-502-6652 (toll free at 1-866-208-

3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at 

(202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at 

public.referenceroom@ferc.gov.

VIII. Effective Date and Congressional Notification

97. These regulations are effective [insert date 60 days from the date the rule is 

published in the FEDERAL REGISTER].

IX. List of Subjects

98. List of subjects in 18 CFR Parts 4, 5, 16, 33, 34, 35, 157, 348, 375, 385 and 388:

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.
Docket No. RM12-2-000 - 53 -

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. 

18 CFR Part 34

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

18 CFR Part 35

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

18 CFR Part 157

Administrative practice and procedure, Natural gas, Reporting and recordkeeping 

requirements, Uniform System of Accounts.

18 CFR Part 348

Pipelines, Reporting and recordkeeping requirements.

18 CFR Part 375

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

18 CFR Part 385

Administrative practice and procedure, Electric utilities, Penalties, Pipelines, Reporting 

and recordkeeping requirements.
Docket No. RM12-2-000 - 54 -

18 CFR Part 388

Confidential business information; Freedom of information.

By the Commission.

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.
Docket No. RM12-2-000 - 55 -

In consideration of the foregoing, the Commission amends Parts 4, 5, 16, 33, 34, 35, 157, 

348, 375, 385, and 388, Chapter I, Title 18, of the Code of Federal Regulations, as 

follows.

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

PROJECT COSTS

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

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

§ 4.39 [Amended]

 2. In paragraph (e) of § 4.39, remove 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. 792-828c, 2601-2645; 42 U.S.C. 7101-7352.

 4. Revise paragraph (c) of § 5.29 to read as follows:

§ 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 the request in accordance with the provisions in § 388.112 of this 

chapter until the date the application is filed with the Commission.

* * * * *
Docket No. RM12-2-000 - 56 -

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-825r, 2601-2645; 42 U.S.C. 7101-7352.

§ 16.8 [Amended]

§ 16.8 Consultation requirements.

*****

 6. (g), add the phrase “or Critical Energy Infrastructure Information” after the word 

“privileged” in the introductory text.

*****

PART 33--APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203

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

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

 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 

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, 
Docket No. RM12-2-000 - 57 -

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.

§ 33.9 [Removed and Reserved].

 9. Remove and reserve § 33.9.

PART 34--APPLICATION FOR AUTHORIZATION OF THE ISSUANCE OF 

SECURITIES OR THE ASSUMPTION OF LIABILITIES

 10. The authority citation for Part 34 is revised to read as follows:

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

 11. In § 34.7, add a sentence after the first sentence to read as follows:

§ 34.7 Filing requirements.

* * * If an applicant seeks to protect any portion of an application from public disclosure, 

the applicant must make its filing in accordance with the Commission’s instructions for 

filing privileged materials and critical energy infrastructure information in this chapter.

PART 35--FILING OF RATE SCHEDULES AND TARIFFS

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

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

 13. Revise § 35.37, paragraph (f) to read as follows.

§ 35.37 Market power analysis required.

* * * * *
Docket No. RM12-2-000 - 58 -

 (f) If the Seller seeks to protect any portion of a filing from public disclosure, the 

Seller must make its filing in accordance with the Commission’s instructions for filing 

privileged materials and critical energy infrastructure information in § 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

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

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

§ 157.21 Pre-filing procedures and review process for LNG terminal facilities and other 

natural gas facilities prior to filing of applications.

*****

 15. (h) Remove the phrase “for the submission of documents containing critical energy 

infrastructure information, as defined in § 388.113.” and add the phrase “of this chapter

for the submission of documents containing privileged materials or critical energy 

infrastructure information.” in its place.

*****

§ 157.34 Notice of open season.

*****

(d) ***

 16. (4) Remove the phrase “under confidential treatment pursuant to § 388.112 of this 

chapter if desired.” and add the phrase “seeking privileged treatment pursuant to § 

388.112 of this chapter.” in its place.

*****

PART 348--OIL PIPELINE APPLICATIONS FOR MARKET POWER 

DETERMINATIONS
Docket No. RM12-2-000 - 59 -

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

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

 18. 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

 19. 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. 791-825r, 

2601-2645; 42 U.S.C. 7101-7352.

 20. 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.

*****

PART 385--RULES OF PRACTICE AND PROCEDURE

 21. 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. 792-828c, 

2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 42 U.S.C. 7101-7352, 16441, 16451-
Docket No. RM12-2-000 - 60 -

16463; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988).

§ 385.206 [Amended]

 22. In § 385.206, remove and reserve paragraph (e).

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

§ 385.213 Answers (Rule 213).

* * * * *

 (c) * * *

 (5) When submitting with its answer any request for privileged treatment of documents 

and information in accordance with this chapter, a respondent must provide a public 

version of its answer without the information for which privileged treatment is claimed 

and its proposed form of protective agreement to each entity that has either been served 

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

compiled by the Secretary.

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

§ 385.213 Answers (Rule 213).

* * * * *

 (d) Time limitations. (1) Any answer to a motion or to an amendment to a motion must 

be made within 15 days after the motion or amendment is filed, except as described 

below or unless otherwise ordered.

 (i) If a motion requests an extension of time or a shortened time period for action, then 

answers to the motion to extend or shorten the time period shall be made within 5 days 

after the motion is filed, unless otherwise ordered.

 (ii) [Reserved]

* * * * *

§ 385.606 [Amended]

*****

 25. In § 385.606:

a. In paragraph (f), remove the sentence “See sections 385.410 and 388.112 of this 

chapter.” 
Docket No. RM12-2-000 - 61 -

b. In paragraph (j), remove the phrase “section 388.112 of”.

PART 388--INFORMATION AND REQUESTS

 27. 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.

 28. 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 the 

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 

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 material 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 a person files material as privileged material or CEII in a complaint proceeding or 

other proceeding to which a right to intervention exists, that person must include a 
Docket No. RM12-2-000 - 62 -

proposed form of protective agreement with the filing, or identify a protective agreement 

that has already been filed in the proceeding that applies to the filed material. 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 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 (b)(2)(iv) of this section to provide intervenors with landowner lists and the 

other materials identified in the previous sentence.

 (c) Effect of privilege or CEII claim. (1) For documents filed with the Commission:

 (i) The documents for which privileged or CEII treatment is claimed will be 

maintained in the Commission’s document repositories as non-public until such time as 

the Commission may determine that the document is not 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.
Docket No. RM12-2-000 - 63 -

 (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. 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.

§ 388.113 Accessing critical energy infrastructure information.

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 29. (d)(1) and (d)(2), remove the phrase “paragraph (d)(3)” and add the phrase 

“paragraph (d)(4)” in its place.

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