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###### Department of Energy

###### Federal Energy Regulatory Commission 

          - 18 CFR Parts 141 and 385 
          - [Docket No. RM00-1-000; Order No. 622] 

# AGENCY:

Federal Energy Regulatory Commission. 

# ACTION:

Final rule. 

# SUMMARY:

The Federal Energy Regulatory Commission (Commission) is amending its regulations under the Federal Power Act (FPA) to provide for the electronic filing of its Form No. 423 (Form 423). Commencing with the January 2002 filing, due March 15, 2002, only electronic filings will be accepted; the paper filing requirement will be eliminated. The Commission has developed the capacity to accept such filings electronically and has extensively tested the software and related elements of the electronic filing mechanism. This automation of the Form 423 yields significant benefits to respondents, the Commission and to the electric industry as a whole. These benefits include more timely analysis and publication of the data, increased data analysis capability, reduced cost of data entry and retrieval and an overall reduction in filing burden. 

# EFFECTIVE DATE:

This final rule is effective January 28, 2002. 

# FOR FURTHER INFORMATION CONTACT:

                        Patricia W. Morris (Technical Information), Office of Markets, Tariffs and Rates, FERC, 888 First Street, NE., Washington, DC 20426, (202) 208-6990,                         *patricia.morris@ferc.fed.us*

                        Bolton Pierce (Electronic System), Office of Information Technology, FERC, 888 First Street, NE., Washington, DC 20426, (202) 208-1803,                         *bolton.pierce@ferc.fed.us*

                        S.L. Higginbottom (Legal Information), Office of General Counsel, FERC, 888 First Street, NE., Washington, DC 20426, (202) 208-2168,                         *samuel.higginbottom@ferc.fed.us*

# SUPPLEMENTARY INFORMATION:

## Federal Energy Regulatory Commission 

### Before Commissioners: Pat Wood, III, Chairman; William L. Massey, Linda Breathitt, and Nora Mead Brownell. 

#### Electronic Filing of FERC Form No. 423, Order No. 622; Final Rule 

## I. Introduction 

                    This Final Rule revises parts 141 and 385 of the Commission's regulations to require the electronic filing of its FERC Form No. 423 “Monthly Report of Cost and Quality of Fuels for Electric Plants” (Form 423).[1]                                          The electronic data to be filed, commencing with reports for the month of January 2002, due no later than March 19, 2002, will replace the nearly 1000 pages of Form 423 information presently filed with the Commission in hard copy every month. There will be no further requirement for a hard copy Form 423 filing. The Commission has throughly tested the software and related elements of the electronic filing mechanism and finds that the methodology and mechanics of the system are ready for industry-wide electronic filing of Form 423.                 

## II. Background 

Form 423 information is collected pursuant to sections 205 and 206 of the Federal Power Act (FPA), as amended by section 208 of the Public Utility Regulatory Policies Act of 1978 (PURPA). The Commission collects basic cost and quality of fuels data at electric generating plants on the Form 423 and has used such data to conduct fuel reviews, rate investigations and to track market changes and trends. The Commission's Form 423 filing requirements are found at 18 CFR 141.61

The Form 423 is a monthly submission from approximately 200 electric utilities who sell electric power under traditionally-regulated, cost-based rates from approximately 500 power plants. 

## III. Discussion 

                    On October 28, 1999, the Commission issued a Notice of Proposed Rulemaking (NOPR) in Docket RM00-1-000, proposing that the Form 423 be filed electronically.[2]                                          Respondents to the NOPR commended the efforts of the Commission in reducing the burden by providing for electronic submissions of the Form 423. Any concerns voiced by respondents to the NOPR now have been addressed and resolved.                 

                    The Edison Electric Institute (EEI) was “concerned that the hasty implementation of electronic filing may not provide all the expected benefits and may impose greater transition costs than are necessary.” EEI, and also Southern Companies, thus encouraged the Commission to carefully test all software for a minimum of one year with a group of volunteer reporting companies before electronic filing was made compulsory, and to allow electronic filing via the Internet. The Commission has, in fact, done such testing. Testing began with just a few filers over a year ago. Gradually more and more filers were added and the Commission is now receiving over 25% of each month's Form 423 filings electronically; many of those filing are EEI members who volunteered to help develop the system. (Each month respondents update their previous month's data to reflect the current reporting month; only changes to the prior month's data need be made.) In an                           ( print page 67077)                        effort to assist each filer in entering and submitting the most accurate data, numerous checks and balances have been incorporated into the system. Moreover, filings are being transmitted to the Commission via the Internet.                 

## IV. Environmental Statement 

                    Commission regulations require that an environmental assessment or an environmental impact statement be prepared for any Commission action that may have a significant adverse effect on the human environment.[3]                                          No environmental consideration is necessary for the promulgation of a rule that is clarifying, corrective, or procedural, or that does not substantially change the effect of legislation or regulations being amended,[4]                                          and also for information gathering, analysis, and dissemination.[5]                                          This Final Rule does not substantially change the effect of the regulation being amended. In addition, the Final Rule involves information gathering, analysis and dissemination. Therefore, this Final Rule falls within categorical exemptions provided in the Commission's regulations. Consequently, neither an environmental impact statement nor an environmental assessment is required.                 

## V. Regulatory Flexibility Act 

                    In                     *Mid-Tex Elect. Coop.*                    v.                     *FERC,*                     773 F. 2d 327 (D. C. Cir. 1985), the court found that Congress, in passing the Regulatory Flexibility Act (RFA),[6]                                          intended agencies to limit their consideration “to small entities that would be directly regulated” by proposed rules.                     *Id.*                     at 342. The court further concluded that “the relevant ‘economic impact’ was the impact of compliance with the proposed rule on regulated small entities.”                     *Id.*

                    This Final Rule will reduce the reporting burden and promote consistent reporting practices for all reporting companies. The Commission received no comments regarding its certification in the NOPR that the Final Rule would not have a significant economic impact on a substantial number of small entities. Moreover, the Commission again finds that most filing entities regulated by the Commission do not fall within the RFA's definition of a small entity [7]                                          and that this Final Rule will not have a significant economic impact on a substantial number of small entities.                 

## VI. Information Collection Statement 

The Office of Management and Budget (OMB) regulations require that OMB approve certain reporting and record keeping (collections of information) imposed by an agency. The information collection requirements in this Final Rule are contained in Form 423, “Monthly Report of Cost and Quality of Fuels for Electric Plants” (OMB approval No. 1902-0024). Form 423 most recently received OMB approval on January 23, 2001 for the period through January 2003. As part of the renewal process, OMB was notified that the Commission was developing and testing a system for electronic submission of the data. This electronic filing initiative is part of the Commission's ongoing program to reduce reporting requirements. As explained below, the shift to electronic filing of the Form 423 will reduce, by about one-third, the burden on regulated companies for maintaining and reporting information under the Commission's Form 423 regulations. 

Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426 (Attention: Michael Miller, Office of the Chief Information Officer, (202) 208-1415) or from the Office of Management and Budget, Room 10202 NEOB, Washington, DC 20503 (Attention: Desk Officer for the Federal Energy Regulatory Commission, (202) 395-3087, fax: (202) 395-7285). 

The regulated entity shall not be penalized for failure to respond to this collection of information unless the collection of information displays a valid OMB control number. 

*Title:*                     FERC Form No. 423, “Monthly Report of Cost and Quality of Fuels for Electric Plants.”                 

*Action:*                     Revision of a Currently Approved Collection.                 

*OMB Control No.:*                     1902-0024.                 

*Respondents:*                     Every electric power producer having electric generating plants with a rated steam-electric generating capacity of 50 megawatts or greater during the reporting month.                 

*Frequency of Responses:*                     Monthly.                 

*Reporting Burden:*                     At the time of OMB renewal in January 2001, there were monthly filings for approximately 636 electric plants. With an average overall response rate of 1.5 hours per monthly report, the total respondent burden was 11,448 hours (636 x 1.5 x 12). Currently there are 584 monthly filings, a reduction of 52 filings due largely to waivers since granted by the Commission to those utilities operating solely under market-based rates, with a total annual respondent burden of 10,512 hours (584 x 1.5 x 12). These 584 monthly filings will now be submitted electronically, reducing the average burden to 1.0 hour per monthly report, for a total respondent burden of 7,008 hours (584 x 1.0 x 12). This is a reduction of 3,504 respondent burden hours (10,512 hours—7,008 hours), or a reduction of roughly one third.                 

The burden reduction realized by the Federal government is just as dramatic. Previously the estimated annualized Form 423 cost to the Federal government was stated as $190,000 (approximately 1.6 FTE), however with electronic filing the annual cost is only $29,260 (approximately 0.25 FTE). 

The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the information requirements. These new electronic filing requirements conform to the Commission's plan for efficient information collection, communication and management within the electric power industry. The changes will contribute to well-informed decision-making and streamlined workload processing. 

                    Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, Attention: Michael Miller, Office of the Chief Information Officer, Phone: (202) 208-1415, fax: (202) 273-0873, e-mail:                     *mike.miller@ferc.fed.us.*

For the submission of comments concerning the collection of information and the associated burden estimates, please send your comments to the contact listed above or to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington DC, 20503 (Attention: Desk Officer for the Federal Energy Regulatory Commission, phone (202) 395-3087, fax: (202) 395-7285). 

## VII. Document Availability 

                    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                           ( print page 67078)                        during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE, Room 2A, Washington, DC 20426.                 

From FERC's home page on the Internet, this information is available in both the Commission Issuance Posting System (CIPS) and the Records and Information Management System (RIMS).

—CIPS provides access to the texts of formal documents issued by the Commission since November 14, 1994. 

—CIPS can be accessed using the CIPS link or the Energy Information Online icon. The full text of this document is available on CIPS in ASCII and WordPerfect 8.0 format for viewing, printing, and/or downloading. 

—RIMS contains images of documents submitted to and issued by the Commission after November 16, 1981. Documents from November 1995 to the present can be viewed and printed from FERC's Home Page using the RIMS link or the Energy Information Online icon. Descriptions of documents back to November 16, 1981, are also available from RIMS-on-the-Web; requests for copies of these and other older documents should be submitted to the Public Reference Room. 

                    User assistance is available for RIMS, CIPS, and the web site during normal business hours from our Help line at (202) 208-2222 (e-mail to                     *WebMaster@ferc.fed.us*) or the Public Reference Room at (202) 208-1371 (e-mail to                     *public.referenceroom@ferc.fed.us*).                 

During normal business hours, documents can also be viewed and/or printed in FERC's Public Reference Room, where RIMS, CIPS, and the FERC web site are available. User assistance is also available. 

## VIII. Effective Date and Congressional Notification 

                    This Final Rule will take effect January 28, 2002. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this rule is not a “major rule” within the meaning of section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996.[8]                                          The Commission will submit the Final Rule to both Houses of Congress and the General Accounting Office.[9] 

# List of Subjects 

### 18 CFR Part 141

      - Electric power
      - Reporting and recordkeeping requirements

### 18 CFR Part 385

      - Administrative practice and procedure Electric power
      - Penalties
      - Pipelines
      - Reporting and recordkeeping requirements

By the Commission. 

Linwood A. Watson, Jr., 

Acting Secretary. 

In consideration of the foregoing, the Commission amends parts 141 and 385, Chapter I, Title 18, of the Code of Federal Regulations, as follows: 

# PART 141—STATEMENTS AND REPORTS (SCHEDULES) 

1. The authority citation for part 141 continues to read as follows: 

Authority:15 U.S.C. 79; 16 U.S.C. 791a-828c, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352. 

2. Section 141.61 is revised, to read as follows: 

§ 141.61 

                            (a)                             *Who must file.*                             Every electric power producer having electric generating plants with a stream-electric generating capacity of 50 megawatts or greater during the reporting month must file with the Federal Energy Regulatory Commission for each such plant the FERC Form No. 423, “Monthly Report of Cost and Quality of Fuels for Electric Plants,” pursuant to the General Instructions set out in this form.                         

                            (b)                             *When to file and what to file.*                             This report must be filed on or before the 45th day after the end of each reporting month. This report must be filed with the Federal Energy Regulatory Commission as prescribed in § 385.2011 of this chapter and as indicated in the General Instructions set out in this form, and must be properly completed and verified. Filing on electronic media pursuant to § 385.2011 of this chapter will be required commencing with the report required to be submitted for the reporting month of January 2002.                         

# PART 385—RULES OF PRACTICE AND PROCEDURE 

3. The authority citation for part 385 continues to read as follows: 

Authority:5 U.S.C. 551-557; 15 U.S.C. 717-717z, 3301-3432; 16 U.S.C 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988). 

4. Section 385.2011 is amended by adding paragraph (a)(8), to read as follows: 

§ 385.2011 

(a) * * *

(8) FERC Form No. 423, Monthly Report of Cost and Quality of Fuels for Electric Plants. 

* * * * *

# Footnotes

1.                             The Commission's original Notice of Proposed Rulemaking (NOPR), proposed to make three FERC data collections, Forms 423, 714 and 715, electronic. This Final Rule will require electronic filing of the Form 423, but not yet change the collection of the Forms 714 and 715. Comments received in response to the NOPR indicated that further consideration was warranted before electronic filing of the Forms 714 and 715 is ordered.                    
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2.                             Electronic Filing of FERC Form Nos. 423, 714 and 715, Notice of Proposed Rulemaking, 64 FR 60140 (Nov. 4, 1999), FERC Stats. & Regs. ¶ 32,546 (1999).                    
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3.                             Regulations Implementing National Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987).                    
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4.                             18 CFR 380.4(a)(2)(ii).                    
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5.                             18 CFR 380.4(a)(5).                    
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6.                             5 U.S.C. 601-612.                    
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7.                             5 U.S.C. 601(3), citing to section 3 of the Small Business Act, 15 U.S.C. 632. Section 3 of the Small Business Act defines a “small-business concern” as a business which is independently owned and operated and which is not dominant in its field of operation.                    
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8.                             5 U.S.C. 804(2).                     
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9.                             5 U.S.C. 801(a)(1)(A).                     
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[FR Doc. 01-32006 Filed 12-27-01; 8:45 am] 

BILLING CODE 6717-01-P