[Federal Register Volume 70, Number 184 (Friday, September 23, 2005)]
[Rules and Regulations]
[Pages 55723-55725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19004]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 385
[Docket No. RM05-33-000; Order No. 663]
Revision of Rules of Practice and Procedure Regarding Issue
Identification
Issued September 16, 2005.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
revising its regulations regarding filings. The regulations are revised
to clarify that any issues that the movant wishes the Commission to
address must be specifically identified in a section entitled
``Statement of Issues.'' This change will benefit the Commission by
clarifying issues raised, and benefit movants by ensuring issues are
addressed promptly and preserved for appeal.
EFFECTIVE DATE: The rule will become effective September 23, 2005.
FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the
General Counsel, GC-13, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426, 202-502-8521.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead Brownell,
and Suedeen G. Kelly.
1. The Federal Energy Regulatory Commission (Commission) is
revising its rules of practice and procedure to clarify that any issues
a movant wishes the Commission to address must be clearly set forth in
a section entitled ``Statement of Issues,'' that will reference
representative Commission and court precedent on which the participant
is relying. While the current rules require that pleadings include
``[t]he position taken by the participant filing any pleading * * * and
the basis in fact and law for such position,'' the Commission has found
that movants sometimes fail to specify the issues they want the
Commission to address, or the case law supporting their position. 18
CFR 385.203(a)(7). This revision will benefit movants, and other
parties to the proceeding, as well as the Commission.
2. The way to ensure that an issue is addressed is for a movant to
place it squarely before the Commission in a filing. Under the
Administrative
[[Page 55724]]
Procedures Act (APA), 5 U.S.C. 554(b)(3), ``[w]hen private persons are
the moving parties, other parties to the proceeding shall give prompt
notice of issues controverted in fact or law * * *.'' These amendments
are consistent with that provision of the APA in that they require that
a movant identify with specificity those issues he is raising with the
Commission, and provide the applicable legal authority supporting his
position.
3. This rule will benefit all participants. Other parties will know
with certainty which issues to address in any responsive pleadings. The
Commission will know with certainty the issues being raised and the
legal support cited as supporting that issue, enabling the Commission
to respond promptly and thoroughly to such issues. Finally, movants
will benefit by placing the issue squarely before the Commission for
resolution.
4. There have been numerous instances where appeals have been
denied because an appellant failed to clearly raise an issue before the
Commission on rehearing. See, e.g., California Dep't of Water Resources
v. FERC, 341 F.3d 906, 911(9th Cir. 2003) (issue not preserved for
review where petitioner ``raised the issue in a single sentence at the
end of an unrelated section of its request for rehearing, without
citing the statutory language it now urges [the court of appeals] to
consider.''); Intermountain Municipal Gas Agency v. FERC, 326 F.3d
1282, 1285 (D.C. Cir. 2003); Coalition for the Fair and Equitable
Regulation of Docks on the Lake of the Ozarks v. FERC, 297 F.3d 771,
777 (8th Cir. 2002) (declining to find jurisdiction where petitioner's
``brief does not show that it raised the * * * arguments in any
recognizable form''). Both the Natural Gas Act and the Federal Power
Act require that issues be presented with specificity to the Commission
on rehearing prior to any court appeal. 15 U.S.C. 717r(b) (``No
objection to the order of the Commission shall be considered by the
court unless such objection shall have been urged before the Commission
in the application for rehearing unless there is reasonable ground for
failure to do so.''); 16 U.S.C. 825l(a) (``The application for
rehearing shall set forth specifically the ground or grounds upon which
such application is based * * *. No proceeding to review any orders of
the Commission shall be brought by any person unless such person shall
have made application to the Commission for a rehearing thereon.'').
This is a threshold issue; courts have found no jurisdiction to address
issues that were not sufficiently raised in a request for rehearing.
See, e.g., Intermountain v. FERC, 326 F.2d at 1285 (concluding the
court lacked jurisdiction to address an issue because ``so general and
vague statement'' does not satisfy the requirement in the Natural Gas
Act that objections be ``specifically urged.'') (citations omitted).
5. The general rules regarding content of pleadings are found in
Rule 203, Content of pleadings and tariff or rate filings. 18 CFR
385.203. Rule 202 defines pleadings to include ``any application,
complaint, petition, protest, notice of protest, answer, motion, and
any amendment or withdrawal of a pleading.'' 18 CFR 385.202.\1\ To
date, Sec. 385.203(a)(7) has required that each pleading include, as
appropriate, ``[t]he position taken by the participant filing any
pleading, to the extent known when the pleading is filed, and the basis
in fact and law for such position.'' The Commission is revising this
provision to specify that the issues be set forth in a separate titled
section. Revised Sec. 385.203(a)(7) requires that pleadings include:
``[t]he position taken by the participant filing any pleading, to the
extent known when the pleading is filed, and the basis in fact and law
for such position, including a separate section entitled ``Statement of
Issues,'' listing each issue presented to the Commission in a
separately enumerated paragraph that includes representative Commission
and court precedent on which the participant is relying.''
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\1\ Rule 202 specifically excludes comments on rulemakings or
comments on offers of settlement from the definition of pleading.
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6. This final rule also adds language to Rule 713 to clarify that a
``Statement of Issues'' section is also required in requests for
rehearing as well as pleadings. Existing Rule 713 states that requests
for rehearing ``must * * * [c]onform to the requirements in Rule 203(a)
which are applicable to pleadings.'' 18 CFR 713(c)(2). Therefore, the
amended language in revised Rule 203 already applies to rehearings;
however, the requirement for a section entitled ``Statement of Issues''
is important enough that it warrants repeating in the rule on requests
for rehearing. Revised 18 CFR 385.713(c)(2) is, therefore, revised to
clarify that requests for rehearing must ``conform to the requirements
in Rule 203(a), which are applicable to pleadings, including, but not
limited to, the requirement for a separate section entitled ``Statement
of Issues,'' listing each issue in a separately enumerated paragraph
that includes representative Commission and court precedent on which
the party is relying.''
7. If a movant fails to list issues in a separate section entitled
``Statement of Issues,'' such issues will be deemed to have been
waived. This is consistent with existing Rule 2001, which states that
filings that fail to meet applicable statutes, rules or orders may be
rejected in full or all or part of the filing may be stricken. 18 CFR
385.2001(b). Sections 385.203 and 385.713 are both revised to specify
that issues that are not presented in separate paragraphs in the
``Statement of Issues'' section will be deemed waived.
8. The changes that are made in this rule are essentially
formatting changes. The existing regulations already require issue
identification and the basis in fact and law for positions asserted;
this order simply requires that the issues and legal support for the
position taken be set forth in a section entitled ``Statement of
Issues,'' thus making it easier for staff and others to know with
certainty the issues and legal arguments being raised.
Information Collection Statement
9. The Office of Management and Budget's (OMB's) regulations
require that OMB approve certain information collection requirements
imposed by agency rule. 5 CFR 1320.12 (2005). This final rule contains
no additional information reporting requirements, and is not subject to
OMB approval.
Environmental Analysis
10. 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.\2\ The
Commission has categorically excluded certain actions from this
requirement as not having a significant effect on the human
environment. Included in the exclusion are rules that are clarifying,
corrective, or procedural that do not substantially change the effect
of the regulations being amended. This proposed rule is procedural in
nature and, therefore, falls under this exception; consequently, no
environmental consideration is necessary.
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\2\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs. Preambles 1986-1990 ] 30,783 (1987).
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Regulatory Flexibility Act Certification
11. The Regulatory Flexibility Act of 1980 (RFA) \3\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
The Commission is not
[[Page 55725]]
required to make such analysis if a rule would not have such an effect.
The Commission certifies that this rule will not have such an impact on
small entities as it merely clarifies existing requirements. An
analysis under the RFA therefore, is not required.
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\3\ 5 U.S.C. 601-612.
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Document Availability
12. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through 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 p.m.
Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426.
13. From FERC's Home Page on the Internet, this information is
available in the Commission's document management system, eLibrary. The
full text of this document is available on eLibrary in PDF and
Microsoft Word format for viewing, printing, and/or downloading. To
access this document in eLibrary, type the docket number excluding the
last three digits of this document in the docket number field.
14. User assistance is available for eLibrary and the FERC's Web
site during normal business hours. For assistance, please contact the
Commission's Online Support at 1-866-208-3676 (toll free) or TTY (202)
502-8659, or e-mail at [email protected]. You may also contact
the Public Reference Room at (202) 502-8371 or e-mail at
[email protected].
Effective Date
15. These regulations are effective immediately upon publication in
the Federal Register. In accordance with 5 U.S.C. 553(d)(3), the
Commission finds that good cause exists to make this Final Rule
effective immediately upon publication. It concerns only a matter of
procedure affecting formatting of filings.
16. The provisions of 5 U.S.C. 801 regarding Congressional review
of Final Rules does not apply to this Final Rule, because the rule
concerns agency procedure and practice and will not substantially
affect the rights of non-agency parties.
17. The Commission is issuing this as a final rule without a period
for public comment. Under 5 U.S.C. 553(b), notice and comment
procedures are unnecessary where a rulemaking concerns only agency
procedure and practice, or where the agency finds that notice and
comment is unnecessary. This rule concerns only a clarification of a
matter of agency procedure and will not significantly affect regulated
entities or the general public.
List of Subjects in 18 CFR Part 385
Administrative practice and procedure, Electric utilities,
Penalties, Pipelines, Reporting and recordkeeping requirements.
By the Commission.
Magalie R. Salas,
Secretary.
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In consideration of the foregoing, the Commission amends part 385,
chapter I, title 18, Code of Federal Regulations, as follows.
PART 385--RULES OF PRACTICE AND PROCEDURE
0
1. 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; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701;
42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1085 (1988).
0
2. Section 385.203 is amended by revising paragraph (a)(7) to read as
follows:
Sec. 385.203 Content of pleadings and tariff or rate filings (Rule
203).
(a) * * *
(7) The position taken by the participant filing any pleading, to
the extent known when the pleading is filed, and the basis in fact and
law for such position, including a separate section entitled
``Statement of Issues,'' listing each issue presented to the Commission
in a separately enumerated paragraph that includes representative
Commission and court precedent on which the participant is relying; any
issue not so listed will be deemed waived;
* * * * *
0
3. Section 385.713 is amended by revising paragraph (c)(2) to read as
follows:
Sec. 385.713 Request for rehearing (Rule 713).
* * * * *
(c) * * *
(2) Conform to the requirements in Rule 203(a), which are
applicable to pleadings, including, but not limited to, the requirement
for a separate section entitled ``Statement of Issues,'' listing each
issue in a separately enumerated paragraph that includes representative
Commission and court precedent on which the party is relying; any issue
not so listed will be deemed waived; and
* * * * *
[FR Doc. 05-19004 Filed 9-22-05; 8:45 am]
BILLING CODE 6717-01-P