[Federal Register Volume 59, Number 204 (Monday, October 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26284]


[[Page Unknown]]

[Federal Register: October 24, 1994]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 375

[Docket No. RM94-21-000]

 

Authorizing Delegation to the Secretary in Proceedings Under 
Section 210 or Section 211 of the Federal Power Act; Order No. 570; 
Final Rule

October 18, 1994.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission is amending its 
regulations to authorize the Secretary, or the Secretary's designee, to 
reject without prejudice all requests for rehearing and requests for 
modification of a proposed order issued in a proceeding under either 
section 210 or section 211 of the Federal Power Act (FPA). In addition, 
the Secretary, or the Secretary's designee, will be authorized to 
reject without prejudice all motions for clarification combined with 
requests for rehearing and/or requests for modification of a proposed 
order issued in a proceeding under either section 210 or section 211 of 
the FPA.
    This amendment is necessary in the interests of administrative 
efficiency.

EFFECTIVE DATE: The final rule is effective November 23, 1994.

FOR FURTHER INFORMATION CONTACT: Gilda E. Rodriguez, Federal Energy 
Regulatory Commission, Office of the General Counsel, 825 North Capitol 
Street NE., Washington, DC 20426, (202) 208-0626.

SUPPLEMENTARY INFORMATION: In addition to publishing the full text of 
this document in the Federal Register, the Commission also provides all 
interested persons an opportunity to inspect or copy the contents of 
this document during normal business hours in Room 3104, 941 North 
Capitol Street NE., Washington, DC 20426.
    The Commission Issuance Posting System (CIPS), an electronic 
bulletin board service, provides access to the texts of formal 
documents issued by the Commission. CIPS is available at no charge to 
the user and may be accessed using a personal computer with a modem by 
dialing (202) 208-1397. To access CIPS, set your communications 
software to use 300, 1200, or 2400 bps, full duplex, no parity, 8 data 
bits and 1 stop bit. CIPS can also be accessed at 9600 bps by dialing 
(202) 208-1781. The full text of this order will be available on CIPS 
for 30 days from the date of issuance. The complete text on diskette in 
WordPerfect format may also be purchased from the Commission's copy 
contractor, La Dorn Systems Corporation, also located in Room 3104, 941 
North Capitol Street NE., Washington, DC 20426.

I. Introduction

    Issued October 17, 1994.

    Before Commissioners: Elizabeth Anne Moler, Chair; Vicky A. 
Bailey, James J. Hoecker, William L. Massey, and Donald F. Santa, 
Jr.

    The Federal Energy Regulatory Commission is amending 18 CFR 
375.302. Under 18 CFR 375.302 the Commission delegates to the 
Secretary, or the Secretary's designee, the authority to perform 
certain functions listed in the regulation. The purpose of this final 
rule is to amend the list of delegations to add that the Secretary, or 
the Secretary's designee, has the authority to reject without prejudice 
certain documents filed in proceedings instituted under section 210 or 
section 211 of the Federal Power Act (FPA).1
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    \1\16 U.S.C. 824i, 824j.
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    Consistent with the Commission's prior orders, pursuant to this 
rule the Secretary, or the Secretary's designee, will be authorized to 
reject without prejudice all requests for rehearing and requests for 
modifications of a proposed order issued in a proceeding under section 
211 of the FPA. In addition, the Secretary, or the Secretary's 
designee, will be authorized to reject without prejudice all motions 
for clarification that are combined with requests for rehearing and/or 
requests for modification of a proposed order issued in a proceeding 
under section 211 of the FPA. The Secretary, or the Secretary's 
designee, also will be granted the same authority for proceedings under 
section 210 of the FPA. This amendment is necessary in the interests of 
administrative efficiency.

II. Discussion

    The Energy Policy Act of 1992 revised sections 211 and 212 of the 
FPA2 so that the Commission, upon application, may issue an order 
requiring a transmitting utility to provide transmission services once 
certain conditions are met. Under section 211, the Commission may issue 
an order only if it finds that the order meets the requirements of 
section 212, complies with the statutory standards described in section 
211, and would otherwise be in the public interest.
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    \2\16 U.S.C. 824j, 824k.
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    Section 212(c)(1) states that, before the Commission issues an 
order under section 210 or section 211, the Commission shall issue a 
proposed order and set a reasonable time for parties to the proposed 
interconnection or transmission order to agree to terms and conditions 
under which such order is to be carried out, including the 
apportionment of costs between them and the compensation or 
reimbursement reasonably due to any of them.
    That section also provides that such proposed order shall not be 
reviewable or enforceable in any court.3
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    \3\16 U.S.C. 824k(c)(1).
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    Consistent with this statutory mandate, in Florida Municipal Power 
Agency v. Florida Power & Light Company,4--the first case in which 
the Commission proposed to order transmission services under section 
211, as amended by the Energy Policy Act--the Commission noted that it 
had considerable discretion with respect to both the timing and the 
specificity of a proposed order. Moreover, the Commission stated that 
the proposed order shall not be reviewable or enforceable in court. The 
Commission added that, consistent with 18 CFR 385.713, the proposed 
order is an interlocutory order not subject to requests for rehearing; 
the proper time for parties to seek rehearing is after the Commission 
issues a final order under section 211.5
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    \4\65 FERC 61,125, order dismissing requests for reh'g, 65 FERC 
61,372 (1993) (Florida Municipal).
    \5\65 FERC at 61,613.
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    Responding to requests for rehearing of Florida Municipal, the 
Commission reiterated the above, and explained that the preliminary 
findings in a proposed order were not subject to judicial review or 
requests for rehearing. The Commission explained that entertaining and 
responding to arguments on preliminary findings could result in a waste 
of resources of both the Commission and the parties, and could 
unnecessarily delay the provision of transmission services.6
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    \6\65 FERC at 63,012.
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    Nonetheless, in subsequent cases, parties have continued to file 
requests for rehearings of proposed orders in section 211 proceedings. 
Using Commission time and resources, the Commission has responded to 
these requests for rehearing and issued decisions finding that proposed 
orders in section 211 proceedings made preliminary findings only, and 
thus were not subject to rehearing. Consequently, the Commission 
dismissed these requests for rehearing of the proposed orders without 
prejudice.7
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    \7\See Minnesota Municipal Power Agency v. Southern Minnesota 
Power Agency, 67 FERC 61,075 at 61,206-07 (1994); Minnesota 
Municipal Power Agency v. Northern States Power Company, 66 FERC 
61,323 at 62,034 (1994).
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    Most recently, in El Paso Electric Company and Central and South 
West Services, Inc., as agent for Public Service Company of Oklahoma, 
West Texas Utilities Company, Southwestern Electric Power Company, and 
Central Power and Light Company v. Southwestern Public Service 
Company,8 the Commission again addressed parties' inappropriate 
filing of a request for rehearing of a proposed order for transmission 
services under section 211. Consistent with the earlier orders, the 
Commission dismissed the request for rehearing without prejudice noting 
that the proposed order made preliminary findings only, and that a 
request for rehearing would be appropriate only after the Commission 
issued a final order. Moreover, the Commission added that 
notwithstanding many previous, specific admonishments that a request 
for rehearing of a proposed order for transmission services under 
section 211 is improper, it has had to repeatedly issue orders 
dismissing such requests. Accordingly, in the interest of 
administrative efficiency, the Commission authorized the Secretary, or 
the Secretary's designee, as of the date of the issuance of the order, 
to reject requests for rehearing and requests for modification of a 
proposed order under section 211. However, the Commission indicated 
that it would entertain legitimate motions for clarification of a 
proposed order as long as they were not combined with requests for 
rehearing and/or requests for modification of a proposed order issued 
in a proceeding under section 211.9
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    \8\68 FERC ________ (1994) (El Paso).
    \9\Id. at ________, slip op. at 5-6.
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    Although we have consistently attempted to forestall the 
inappropriate filing of a request for rehearing or modification of a 
proposed order under section 211, parties continue to make these 
improper filings. Therefore, as we noted in El Paso, in the interests 
of administrative efficiency the Commission will not review these 
requests or issue decisions; rather the Secretary, or the Secretary's 
designee, will be authorized to reject without prejudice such requests 
outright.
    Moreover, since the language of FPA section 212(c)(1) is also 
applicable to section 210 proceedings, we will also delegate to the 
Secretary, or the Secretary's designee, the same authority to dismiss 
without prejudice the same type of pleadings in section 210 
proceedings.

III. Conclusion

    As explained above, in the interests of administrative efficiency, 
we will amend 18 CFR 375.302 to add that the Secretary, or the 
Secretary's designee, is authorized to reject without prejudice 
requests for rehearing and requests for modification filed in 
proceedings under section 210 or section 211.

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.10 The Commission has categorically excluded certain 
actions from this requirement as not having a significant effect on the 
human environment.11 No environmental consideration is necessary 
for the promulgation of a rule that is clarifying, corrective, or 
procedural.12 As explained above, this final rule is procedural 
and ministerial in nature, and promotes internal administrative 
efficiency by authorizing the Secretary, or the Secretary's designee, 
to reject without prejudice certain filings in proceedings under 
sections 210 and 211 of the FPA. Accordingly, no environmental 
consideration is necessary.
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    \1\0Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs., Regulations Preambles 1986-90 30,783 (1987) (codified at 18 
CFR part 380).
    \1\118 CFR 380.4.
    \1\218 CFR 380.4(a)(2)(ii).
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V. Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act13 requires rulemakings either 
to contain a description and analysis of the impact the rule will have 
on small entities or a certification that the rule will not have a 
substantial economic impact on a substantial number of small entities. 
Many, if not most, entities to which this rule would apply do not fall 
within the definition of small entities.14 Furthermore, this rule 
does not establish any new reporting requirements and is merely 
procedural. Accordingly, no regulatory flexibility analysis is 
required.
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    \1\35 U.S.C. 601-612.
    \1\4See 5 U.S.C. 601(3), citing to section 3 of the Small 
Business Act, 15 U.S.C. 632, which defines ``small business 
concern'' as a business that is independently owned and operated and 
that is not dominant in its field of operation.
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VI. Information Collection Statement

    The Office of Management and Budget's (OMB) regulations15 
require that OMB approve certain information collection requirements 
imposed by the agency's rule. However, this rule neither contains new 
information collection requirements nor modifies any existing 
information collection requirements in the Commission's regulations. 
Therefore, this final rule is not subject to OMB approval.
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    \1\55 CFR 1320.
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VII. Administrative Findings and Effective Date

    The Administrative Procedure Act (APA)16 requires rulemakings 
to be published in the Federal Register. The APA also mandates that an 
opportunity for comment be provided when an agency promulgates 
regulations. However, notice and comment are not required under the APA 
when the agency for good cause finds that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest.17 The Commission finds that notice and comment are 
unnecessary for this rulemaking. As explained above, this final rule is 
procedural and ministerial in nature and is being promulgated to 
advance internal administrative efficiency. The Commission is merely 
amending 18 CFR 375.302 to permit delegation to the Secretary, or the 
Secretary's designee, to reject without prejudice certain filings in 
proceedings under section 210 or section 211 of the FPA.
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    \1\65 U.S.C. 551-559.
    \1\75 U.S.C. 553(B).
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    The Commission will make this rule effective thirty days after the 
date of publication in the Federal Register.

List of Subjects in 18 CFR Part 375

    Electric power rates, electric utilities, reporting and record 
keeping requirements.

    By the Commission.
Lois D. Cashell,
Secretary.

    In consideration of the foregoing, the Commission amends Part 375, 
Chapter I, Title 18 of the Code of Federal Regulations as set forth 
below.

PART 375--[AMENDED]

    1. The authority citation for Part 375 continues to read as 
follows:

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791-828r, 791a note, 2601-2645; 42 U.S.C. 7101-7532.

    2. Section 375.302 is amended by adding paragraphs (t) and (u) to 
read as follows:


Sec. 375.302  Delegations to the Secretary.

* * * * *
    (t) Reject without prejudice all requests for rehearing and 
requests for modification of a proposed order issued in a proceeding 
under section 210 or section 211 of the Federal Power Act, 16 U.S.C. 
824i, 824j.
    (u) Reject without prejudice all motions for clarification that are 
combined with requests for rehearing and/or requests for modification 
of a proposed order issued in a proceeding under section 210 or section 
211 of the Federal Power Act, 16 U.S.C. 824i, 824j.

[FR Doc. 94-26284 Filed 10-21-94; 8:45 am]
BILLING CODE 6717-01-P