[Federal Register: October 22, 2008 (Volume 73, Number 205)]
[Rules and Regulations]
[Page 62881-62886]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc08-11]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 385
[Docket No. RM08-8-000; Order No. 718]
Ex Parte Contacts and Separation of Functions
Issued October 16, 2008.
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Final rule.
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SUMMARY: The Commission is revising its regulations to clarify its
rules governing ex parte contacts and separation of functions as they
apply to proceedings arising out of investigations initiated under Part
1b of the Commission's regulations. The revisions specify when
Commission litigation staff and persons outside the Commission may
contact decisional employees once the Commission has established
proceedings on matters that had been investigated under Part 1b. The
Commission also is revising its regulations governing intervention to
clarify that intervention is not permitted as a matter of right in
proceedings arising from Part 1b investigations.
DATES: Effective Date: This rule will become effective November 21,
2008.
FOR FURTHER INFORMATION CONTACT: Wilbur Miller, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
(202) 502-8953, wilbur.miller@ferc.gov.
SUPPLEMENTARY INFORMATION:
1. On May 15, 2008, the Commission issued a Notice of Proposed
Rulemaking (NOPR) \1\ proposing to revise its regulations governing ex
parte contacts and interventions in the context of investigations under
Part 1b of its regulations.\2\ Specifically, the NOPR proposed to
revise the Commission's regulations governing ex parte contacts and
separation of functions to clarify the circumstances in which
Commission litigation staff and outside persons may contact
Commissioners and decisional staff while an investigation is pending.
The NOPR further proposed to clarify the Commission's regulations
governing intervention to provide that intervention is not available as
of right in a proceeding arising from an investigation under Part 1b.
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\1\ Ex Parte Contacts and Separation of Functions, 73 FR 29451
(May 21, 2008), FERC Stats. & Regs. ] 32,634 (2008).
\2\ 18 CFR part 1b.
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[[Page 62882]]
I. Background
2. In the NOPR, the Commission noted that, while its regulation
governing interventions provided that there is no intervention in a
Part 1b investigation, the regulation did not address the subject of
intervention in a proceeding arising from a Part 1b investigation.\3\
The NOPR explained that the Commission's precedents have recognized
that, because a proceeding arising from an investigation is focused on
the alleged conduct of a specific entity, intervention ordinarily is
inappropriate and may delay or sidetrack the proceeding.\4\ The NOPR
therefore proposed to revise the regulation to provide that
intervention is not available as of right in a proceeding arising from
a Part 1b investigation. The Commission noted that, under this
revision, it would retain the ability to permit intervention in cases
where it might be appropriate, as the Commission had in fact done on
past occasions.
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\3\ Rule 214 of the Commission's Rules of Practice and
Procedure, 18 CFR 385.214.
\4\ See Energy Transfer Partners, L.P., 121 FERC ] 61,282, at P
19 & n.28 (2007) (ETP).
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3. With respect to off-the-record communications, the NOPR
explained that the current Commission rules created a potential
inconsistency between the ability of Commission litigation staff and
persons outside the Commission to contact Commissioners and decisional
staff in situations where, as the result of a Part 1b investigation,
the Commission initiates proceedings other than trial-type proceedings.
The NOPR further noted some uncertainty within the regulated community
about the application of the ex parte rules in the context of Part 1b
investigations. The NOPR proposed to revise the Commission's ex parte
\5\ and separation of functions \6\ regulations to provide that neither
outside persons nor litigation staff may engage in off-the-record
communications with Commissioners and decisional staff once the
Commission has initiated a proceeding in connection with a Part 1b
investigation, regardless of the type of proceeding.
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\5\ Rule 2201 of the Commission's Rules of Practice and
Procedure, 18 CFR 385.2201 (2008).
\6\ Rule 2202 of the Commission's Rules of Practice and
Procedure, 18 CFR 385.2202 (2008).
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4. The NOPR also made reference to the Revised Policy Statement on
Enforcement,\7\ which was issued at the same time as the NOPR. In the
Revised Policy Statement on Enforcement, the Commission announced that,
as a matter of policy, Commissioners and their personal staffs will no
longer accept oral communications about pending investigations from the
subjects of those investigations. Such communications will have to be
in writing. This measure is a policy and not a part of the Commission's
regulations.
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\7\ Enforcement of Statutes, Regulations, and Orders, 123 FERC ]
61,156 (2008).
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5. In total, the Commission received 14 comments regarding the
NOPR. Multiple State Utilities Commissions joined the comments of the
National Association of Regulatory Utility Commissioners (NARUC).\8\ In
addition, the Industry Associations' (IA) comments represented the
views of several entities.\9\ In general, the commenters expressed
appreciation of the Commission's attempt to refine its enforcement
practices, but expressed concern with both the proposal prohibiting
intervention as a matter of right in enforcement proceedings, as well
as the proposal regarding ex parte contacts with decisional staff prior
to the issuance of an order to show cause.\10\
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\8\ The Public Utilities Commissions of California, Indiana,
Nevada, Ohio, and South Dakota, as well as the Public Service
Commissions of New York, Maryland, and West Virginia, and the
Illinois Commerce Commission, supported the comments of NARUC.
\9\ The Industry Association consists of the American Gas
Association, the Edison Electric Institute, the Electric Power
Supply Association, the Independent Petroleum Association of
America, the Interstate Natural Gas Association of America, the
Natural Gas Supply Association, and the Process Gas Consumers Group.
\10\ Several commenters filed interventions or requested to
intervene out of time, or requested to file late comments. These
included the Indiana Utility Regulatory Commission, the Public
Service Commission of West Virginia, the Illinois Commerce
Commission, the Maryland Public Service Commission, the Public
Utilities Commission of the State of California, the Public Service
Commission of the State of New York, and the Public Utilities
Commission of Ohio. The Commission will treat all such submissions
as comments on the NOPR and has considered them regardless of when
they were filed.
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II. Discussion
A. Intervention
6. The bulk of the comments expressed concern about the NOPR's
proposal to revise the Commission's intervention rules to provide that
there is no intervention as a matter of right in proceedings arising
from Part 1b investigations. For the most part, the commenters were
concerned with specific situations that may arise from time to time in
which they believe intervention would be warranted. A few comments
reflected broader concerns about possible restrictions on intervention.
1. Broader Issues
7. With respect to broader concerns, the National Rural Electric
Cooperative Association and American Public Power Association (NRECA/
APPA), and Ergon Energy Partners, LP (Ergon), assert that the
Commission should not adopt the proposed rule abolishing intervention
as a matter of right in enforcement proceedings. NRECA/APPA state that
the proposed rule is ``likely unlawful to the extent it purports to
eliminate statutory intervention rights'' and is unnecessary in light
of the standards contained in Rule 214.\11\ They assert that it would
be more consistent with the Administrative Procedure Act (APA) if the
Commission followed the standards contained in the existing rule.\12\
They further suggest that, as an alternative to the automatic grant of
a timely, unopposed intervention, the Commission could adopt procedures
employed by other agencies that provide for public notice and comment
periods on consent decrees.\13\ Ergon, while agreeing that intervention
in an investigation may be inappropriate, suggests that the Commission
modify the rule to allow third parties the opportunity for meaningful
participation in proceedings that directly affect their interests, and
to allow intervention once the Commission finds culpable conduct.\14\
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\11\ NRECA/APPA Comments at 2, 5.
\12\ Id. at 6-9 (citing 5 U.S.C. 554(c)(1)).
\13\ Id. at 6, 11. NRECA/APPA cite Federal Trade Commission and
Department of Justice Regulations. Id. at 11.
\14\ Ergon Comments at 2.
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8. We do not agree that the proposed revisions will contravene any
statutory right to intervene. The APA requires agencies to give
interested parties an opportunity for ``the submission and
consideration of facts, arguments, offers of settlement, or proposals
of adjustment when time, the nature of the proceeding, and the public
interest permit.'' \15\ The concerns underlying the NOPR's proposal are
directly related to these considerations. In an adjudicative proceeding
before the Commission, third parties typically provide facts to assist
us in developing a case. However, the purpose of investigations and
enforcement proceedings is to examine instances of potential wrongdoing
and take remedial action where needed. Only in unusual circumstances,
as discussed below, would third parties have additional information
that is necessary for the Commission's investigation. As we have stated
previously:
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\15\ 5 U.S.C. 554(c)(1) (emphasis added).
As a general proposition, when a Part 1b investigation becomes
an enforcement action, we find that it would be inappropriate to
allow entities to intervene as parties to the proceeding. We find
that allowing parties to
[[Page 62883]]
intervene during an enforcement action potentially would be contrary
to the public interest and would interfere with the Commission
considering issues in a timely and judicious manner. This is because
in such an enforcement proceeding, the Commission is considering
closely the particular actions/inactions, rights, obligations and,
potentially violations and penalties of the subject party--here,
ETP. Such a proceeding is different from a rate filing, rulemaking,
or other proceeding where the rights of third parties are clearly
affected. Allowing third parties to intervene in enforcement
proceedings in pursuit of their own objectives could delay or
sidetrack a proceeding extending or even creating additional
uncertainty for the subject party.\16\
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\16\ ETP, 121 FERC ] 61,282, at P 19.
Furthermore, the presence of intervenors could damage the ability
of the Commission to conduct investigations, impair our ability to
enter into settlements, and be contrary to the public interest. If our
ability to enter into settlements is impaired, the result could be
litigation of matters that could otherwise be settled, draining
Commission enforcement resources. Since litigation could be prolonged,
the benefits of settlements could be delayed, perhaps for years.
Another result from the strain on the Commission's investigative
resources could be fewer investigations, with fewer remedies being
imposed and fewer signals being sent to the industry regarding which
sorts of behaviors might expose an entity to an enforcement action,
along with greater costs and prolonged uncertainty imposed on the
subjects of investigation.
9. We consider our views in line with judicial precedent on the
subject of an agency's considerable discretion in making enforcement
decisions.\17\ This discretion extends, among other things, to the
decision whether to initiate an enforcement proceeding \18\ as well as
the conduct of the proceeding and any settlement efforts.\19\ Inclusion
of third parties as a matter of right would necessarily cede a portion
of the Commission's discretion to those parties. Furthermore, the
proposal made by NRECA/APPA that the Commission rely on the standards
currently contained in Rule 214 would limit or eliminate the
Commission's ability to take into account parameters such as time and
the nature of the proceeding, even though those parameters are
specifically set out in the APA. The current rule focuses on the nature
of the prospective intervenor's interest, not on the unique
considerations that pertain to an enforcement proceeding.\20\ We
therefore find that NRECA/APPA's proposal is not appropriate to the
enforcement context.
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\17\ See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (agency
decisions regarding conduct of enforcement actions are presumptively
unreviewable by the courts).
\18\ Baltimore Gas & Electric Co. v. FERC, 252 F.3d 456, 459 (DC
Cir. 2001) (BG&E) (``agency's decision not to exercise its
enforcement authority, or to exercise it in a particular way, is
committed to its absolute discretion'').
\19\ Id. at 458 (decision to settle is committed to FERC's
nonreviewable discretion).
\20\ Rule 214(b) of the Commission's Rules of Practice and
Procedure, 18 CFR 385.214(b).
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10. In our view, the NOPR's proposal addresses Ergon's concerns
that third parties be able to participate in proceedings that directly
implicate their interests, where those interests can be addressed in a
manner that does not unduly hamper the Commission's enforcement
efforts. As noted in the NOPR, the Commission has recognized that, on
occasion, special circumstances might justify intervention in an
enforcement proceeding. One such situation was an intervention in an
enforcement proceeding where a state public service commission sought
to clarify the impact of a settlement on state interests.\21\ The
Commission also has noted that intervention might be appropriate to
allow parties to participate in the allocation of disgorged
profits.\22\ The proposed revisions to Rule 214 do not categorically
bar interventions in proceedings arising from Part 1b investigations.
Situations in which intervention would be appropriate are, however,
necessarily limited in keeping with the nature of the enforcement
function and the significant discretion accorded the Commission in that
area.
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\21\ Williams Gas Pipelines Central, Inc., 94 FERC ] 61,285
(2001).
\22\ ETP, 121 FERC ] 61,282 at P 19 & n.28.
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2. Specific Situations
11. NARUC and the state regulatory bodies argue that state entities
should be able to intervene given their unique position as regulators
charged with serving the public interest.\23\ The state regulators
argue that they have a direct interest in enforcement proceedings due
to the impact on their ratepayers \24\ and that their collaboration
will enhance enforcement efforts by avoiding duplicative efforts and
inconsistent outcomes.\25\ They further maintain that the NOPR's
proposal is inconsistent with section 308 of the Federal Power Act
(FPA),\26\ which authorizes the Commission to admit interested state
and local entities as parties to its proceedings.\27\ According to
NARUC, the FPA contains ``no qualifiers regarding the type of FERC
proceedings'' to which a state may be granted party status.\28\ NARUC
proposes to allow states to intervene as a matter of right, and
institute a process requiring ``specific notification of parties that
could have an interest in these determinations, including affected
State commissions.'' \29\ NARUC also states that the Commission should
clarify that the resolution of a Part 1b proceeding will not affect the
rights of states to pursue their own remedies for the wrongdoing that
was the subject of the FERC investigation.\30\ The Public Service
Commission of Maryland additionally asserts that state commissions must
be able to intervene as of right to request rehearing in enforcement
proceedings.\31\ Finally, the Indiana Utility Regulatory Commission
proposes that market monitors be allowed to intervene and be informed
of the status of ongoing investigations.\32\
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\23\ NARUC Comments at 5.
\24\ Id. at 5-6.
\25\ Id. at 6.
\26\ 16 U.S.C. 825g(a).
\27\ NARUC Comments at 3; see New York Pub. Serv. Comm'n
Comments at 4 (Commission should preserve carefully crafted balance
by continuing to recognize state interests); Pub. Serv. Comm'n of
Maryland Comments at 3 (it would be counterproductive not to include
state regulatory authority in enforcement proceedings).
\28\ NARUC Comments at 3.
\29\ Id. at 8.
\30\ Id.
\31\ Pub. Serv. Comm'n of Maryland Comments at 4.
\32\ Indiana Utility Regulatory Commission Comments at 3-4.
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12. One other specific circumstance drawing concern was North
American Electric Reliability Corp. (NERC) Reliability Standards
investigations, particularly so-called ``root cause'' investigations to
determine which entity is at fault for alleged violations of NERC
reliability standards.\33\ Public Service Electric and Gas Company
(PSEG), while agreeing with the Commission generally about intervention
in Part 1b investigations, states that, ``because in the RTO/ISO
construct responsibility for complying with NERC Reliability Standards
does not in every case align with responsibilities between PJM and its
members,'' NERC Reliability Standards investigations are substantially
different from other Part 1b investigations and participants deserve
more latitude in joining other parties. PSEG asserts that, in the
interest
[[Page 62884]]
of due process, it may be necessary in enforcement proceedings arising
from reliability standards investigations to ``widen the scope of
permitted interventions,'' \34\ and that an entity accused of a NERC
violation must be allowed to argue that another entity is responsible
for the violation, and join them as a party to the proceeding prior to
the penalty phase in order to ensure that there is an accurate finding
of the ``root cause'' entity.\35\
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\33\ There may be many situations where several entities could
be investigated for violations for facts arising out of the same
event and in such a case we would expect each entity would be
afforded the full rights allowed to a subject of an enforcement
action. Moreover, the conduct of any entity that might mitigate the
severity of the violation or penalty as to the subject of an
investigation can always be evaluated in an enforcement action
regardless of whether such other entity is an intervenor.
\34\ PSEG Comments at 3.
\35\ Id. at 5.
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13. As we note above, nothing in the proposed revisions to Rule 214
precludes intervention in enforcement proceedings. While clarifying
that there is no right to intervene in proceedings arising from Part 1b
investigations, the Commission nevertheless retains the discretion to
take into account specific circumstances that might favor intervention,
although such circumstances would be uncommon and the participation by
intervenors may be limited to specific matters.
14. We disagree with PSEG that there is any fundamental difference
concerning interventions in investigations carried out by the Regional
Entities and the Electric Reliability Organization (ERO) with respect
to possible violations of Reliability Standards approved by the
Commission and in Part 1b investigations conducted by the Commission
staff into the same kinds of violations. The Commission found in Order
No. 672 that, in general, there should be no right to intervene in
investigations carried out by Regional Entities or the ERO, for the
same reasons that interventions are not permitted in our staff's Part
1b investigations.\36\ We note that in its investigation, a Regional
Entity or the ERO has authority to inquire into all facts relevant to
whether a violation of a Reliability Standard occurred, and to identify
all entities, whether listed on the ERO's compliance registry or not,
whose actions related to the possible violation of a Reliability
Standard.\37\
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\36\ Rules Concerning Certification of the Electric Reliability
Organization; and Procedures for the Establishment, Approval, and
Enforcement of Electric Reliability Standards, Order No. 672, 71 FR
8662 (Feb. 17, 2006), FERC Stats. & Regs. ] 31,204 at P 510, order
on reh'g, Order No. 672-A, 71 FR 19814 (April 18, 2006), FERC Stats.
& Regs. ] 31,212 (2006).
\37\ See Reliability Standard Compliance and Enforcement in
Regions with Regional Transmission Organizations or Independent
System Operators, 122 FERC ] 61,247, at P 19 (2008) (NERC and
Regional Entities will conduct thorough investigations that will
examine the ``root cause'' of violations, and would extend such
investigations to entities not listed on NERC's compliance registry
if necessary).
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15. We also stated in Order No. 672 that if a Regional Entity or
the ERO concluded that interventions would be appropriate in a
particular proceeding it would conduct arising from an investigation
into possible violations of Reliability Standards, it must receive
advance authorization to do so from the Commission.\38\ The Commission,
therefore, will be in a position to evaluate on a case-by-case basis
whether allowing interventions in a particular Regional Entity or ERO
proceeding would be appropriate.\39\ We anticipate that the Commission
could consider the issues PSEG mentions when making this determination
in particular cases.
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\38\ Order No. 672 at P 511.
\39\ See, e.g., North American Electric Reliability Council;
North American Electric Reliability Corporation, 119 FERC ] 61,060,
at P 150, order on reh'g, 120 FERC ] 61,260 (2007) (recognizing
exceptions to the general rule that no interventions should be
permitted in Regional Entity and NERC enforcement proceedings, but
stating that exceptions to this rule exist, which the Commission
would evaluate in advance upon request on a case-by-case basis).
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16. We do not agree with the expansive view of state participation
in enforcement proceedings taken by NARUC and some of the state
regulatory bodies. The proposed revisions are in no way inconsistent
with the FPA. Section 308 of the FPA states as follows:
In any proceeding before it, the Commission, in accordance with
such rules and regulations as it may prescribe, may admit as a party
any interested State, State commission, municipality, or any
representative of interested consumers or security holders, or any
competitor of a party to such proceeding, or any other person whose
participation in the proceeding may be in the public interest.\40\
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\40\ 16 U.S.C. 825g(a). Section 15(a) of the Natural Gas Act, 15
U.S.C. 717n(a), includes a nearly identical provision.
Although this provision recognizes the role of state authorities, it
does not draw a fundamental distinction between them and other
interested persons. Furthermore, the FPA leaves the Commission with
discretion to prescribe appropriate rules and to admit parties when it
is ``in the public interest.'' By using `may' instead of `shall,' it is
clear that section 308 establishes no right of intervention. The
section merely authorizes the Commission to admit state commissions
into FERC proceedings. Nothing in the provision prevents the Commission
from recognizing the differing public interests that may be at stake in
different types of proceedings. The provision likewise places no
limitations on the considerations that the Commission may take into
account in determining the public interest.
17. In our view, as a general matter the availability of
intervention in enforcement proceedings would be inconsistent with the
discretion in pursuing enforcement measures that Congress has afforded
the Commission. The DC Circuit, for instance, has determined that the
Natural Gas Act (NGA) \41\ places no limitations on the Commission's
exercise of its enforcement powers. The court has stated, ``At every
turn the NGA confirms that FERC's decision how, or whether, to enforce
that statute is entirely discretionary.'' \42\ Congress evinced no
intention to ``cabin FERC's enforcement discretion,'' because if it
had, it would have used ``obligatory terms such as `must,' `shall,' and
`will,' not the wholly precatory language employed in the act.'' \43\
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\41\ 15 U.S.C. 717, et seq. There is no meaningful difference
between the relevant provisions of the NGA and those of the FPA.
Compare 15 U.S.C. 717s(a) with 16 U.S.C. 825m, and 15 U.S.C. 717m
with 16 U.S.C. 825f. Analogous provisions of the NGA and FPA are to
be read in pari materia. See, e.g., Arkansas-Louisiana Gas Co. v.
Hall, 453 U.S. 571, 577 n.7 (1981).
\42\ BG&E, 252 F.3d at 460.
\43\ Id. at 461.
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18. We also see no reason why the revisions to Rule 214 would have
any impact upon the ability of states to pursue remedies for wrongdoing
that was the subject of a Part 1b investigation. The revisions address
only the availability of intervention in proceedings arising from Part
1b investigations. As the above discussion shows, the Commission's
enforcement powers lie within its own discretion and the revisions
therefore do not deprive any person or entity of any remedies that it
previously possessed.
19. Although we fully recognize the significant role played in
oversight and enforcement by state regulatory commissions, the
Commission has the sole authority to enforce its own jurisdictional
statutes. As the courts have recognized, enforcement authority is
generally considered discretionary with the agencies to which it is
granted. In our view, the effective exercise of that discretion
requires that enforcement proceedings remain focused on the primary
issue, which is the alleged misconduct of the respondent. The revisions
to Rule 214 nevertheless will leave the Commission with the ability in
appropriate cases to permit the participation of third parties, but
that participation will be tailored to appropriate situations based on
factors that are unique to the particular enforcement context.
20. For similar reasons, we are not persuaded by the various
suggestions
[[Page 62885]]
that we solicit participation in investigations and enforcement
proceedings. Given that we expect intervention to be permitted only in
unusual situations, measures designed to invite such participation will
in most cases result in delay and distraction from the central issues.
Consequently, we find it appropriate to adopt the revisions to Rule 214
contained in the NOPR.
B. Off-the-Record Communications
21. The Commission received comments on the NOPR's proposed
revisions to its ex parte and separation of functions rules from IA
representing the views of several entities. The IA states that it
supports the Commission's goal of equal treatment of investigative
staff and subjects of an investigation subsequent to a show cause
order, and argues that the Commission should extend the proposal to
include the early stages of the investigation.\44\ In its view,
allowing Commission investigative staff unrestricted access to
decisional employees, while allowing the subject of an investigation
only written communication, puts the subject of an investigation at a
disadvantage in making its case to the Commission. The IA specifically
requests that the Commission ``allow oral communications with
Commissioners and other decision-making employees by both
[i]nvestigative [s]taff and the [s]ubject.'' \45\
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\44\ IA Comments at 2.
\45\ Id. at 8-9.
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22. The IA also makes specific procedural suggestions. It maintains
that the subject of an investigation should be allowed to respond to
the investigator's report and should be provided with ``the full set of
material facts and legal conclusions appearing in the investigator's
report, at the same time the report or draft is submitted to any
decisional employee.'' \46\ It further requests clarification of Order
No. 711.\47\ That Order states that a ``notice of intent to seek a show
cause order `shall provide sufficient information and facts' to enable
the Subject to prepare a response.'' \48\ The IA requests that
``sufficient information and facts'' be clarified to mean ``all of the
material facts and legal conclusions being relied on in the
investigator's report.'' \49\ It further requests that a subject be
allowed to respond to an investigator's report if it is revised after a
response is filed.\50\
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\46\ Id. at 3.
\47\ Submissions to the Commission upon Staff Intention to Seek
an Order to Show Cause, Order No. 711, 73 FR 29431 (May 21, 2008),
FERC Stats. & Regs. ] 31,270 (2008).
\48\ Id. at 9.
\49\ Id.
\50\ Id. at 10.
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23. The IA's comments are outside the scope of this rulemaking.
Although the NOPR made reference to the Revised Policy on Enforcement,
which was issued on the same date, it was the latter that announced the
policy whereby neither Commissioners nor their personal staffs will
receive oral communications, in person or by telephone, about pending
investigations from the subjects of those investigations. That policy
does not appear in any regulation proposed here. The NOPR proposed only
to revise the rules on separation of functions and off-the-record
communications to clarify that both outside persons and Commission
investigative staff will be able to communicate with decisional staff
during the same time periods, specifically while an investigation is
pending until the point at which the Commission initiates an
enforcement proceeding. The NOPR did not in any way address the
procedures for staff to submit, and the subject of an investigation to
respond to, a request for a show cause order. Those procedures
therefore cannot be addressed properly here. The Commission therefore
will adopt the proposed revisions to its rules governing off-the-record
communications and separation of functions.
III. Information Collection Statement
24. Office of Management and Budget (OMB) regulations require OMB
to approve certain information collection requirements imposed by
agency rule.\51\ This Final Rule does not contain any information
collection requirements and compliance with the OMB regulations is thus
not required.
IV. Environmental Analysis
25. 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.\52\
Issuance of this Final Rule does not represent a major federal action
having a significant adverse effect on the quality of the human
environment under the Commission's regulations implementing the
National Environmental Policy Act of 1969. 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.\53\ This rulemaking is exempt under that provision.
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\51\ 5 CFR 1320.12.
\52\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats.
& Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
\53\ 18 CFR 380.4(1) and (5).
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V. Regulatory Flexibility Act
26. The Regulatory Flexibility Act of 1980 (RFA) \54\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
This Final Rule concerns solely procedural matters. 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.
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\54\ 5 U.S.C. 601-12.
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VI. Document Availability
27. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through the Commission's Home Page (http://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A,
Washington DC 20426.
28. From the Commission's Home Page on the Internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
29. User assistance is available for eLibrary and the Commission's
Web site during normal business hours from FERC Online Support at 202-
502-6652 (toll free at 1-866-208-3676) or e-mail at
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. E-mail the Public Reference Room at
public.referenceroom@ferc.gov.
VII. Effective Date and Congressional Notification
30. These regulations are effective November 21, 2008. The
Commission has determined, with the concurrence of the Administrator of
the Office of Information and Regulatory Affairs of OMB, that this rule
is not a ``major rule'' as defined in section 351 of the Small Business
Regulatory Enforcement Fairness Act of 1996.
[[Page 62886]]
List of Subjects in 18 CFR Part 385
Administrative practice and procedure, Electric utilities,
Penalties, Pipelines, Reporting and recordkeeping requirements.
By the Commission.
Nathaniel J. Davis, Sr.,
Deputy 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
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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-825v, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701;
42 U.S.C. 7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App.
U.S.C. 1-85 (1988).
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2. Amend Sec. 385.214 by adding new paragraph (a)(4) to read as
follows:
Sec. 385.214 Intervention (Rule 214).
(a) * * *
(4) No person, including entities listed in paragraphs (a)(1) and
(a)(2) of this section, may intervene as a matter of right in a
proceeding arising from an investigation pursuant to Part 1b of this
chapter.
* * * * *
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3. Amend Sec. 385.2201 by revising paragraph (c)(1) to read as
follows:
Sec. 385.2201 Rules governing off-the-record communications (Rule
2201).
* * * * *
(c) * * *
(1) Contested on-the-record proceeding means
(i) Except as provided in paragraph (c)(1)(ii) of this section, any
proceeding before the Commission to which there is a right to intervene
and in which an intervenor disputes any material issue, any proceeding
initiated pursuant to rule 206 by the filing of a complaint with the
Commission, any proceeding initiated by the Commission on its own
motion or in response to a filing, or any proceeding arising from an
investigation under part 1b of this chapter beginning from the time the
Commission initiates a proceeding governed by part 385 of this chapter.
(ii) The term does not include notice-and-comment rulemakings under
5 U.S.C. 553, investigations under part 1b of this chapter, proceedings
not having a party or parties, or any proceeding in which no party
disputes any material issue.
* * * * *
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4. Amend Sec. 385.2202 by revising it to read as follows:
Sec. 385.2202 Separation of functions (Rule 2202).
In any proceeding in which a Commission adjudication is made after
hearing, or in any proceeding arising from an investigation under part
1b of this chapter beginning from the time the Commission initiates a
proceeding governed by part 385 of this chapter, no officer, employee,
or agent assigned to work upon the proceeding or to assist in the trial
thereof, in that or any factually related proceeding, shall participate
or advise as to the findings, conclusion or decision, except as a
witness or counsel in public proceedings.
[FR Doc. E8-25103 Filed 10-21-08; 8:45 am]
BILLING CODE 6717-01-P