[Federal Register Volume 64, Number 154 (Wednesday, August 11, 1999)]
[Rules and Regulations]
[Pages 43600-43608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19885]



[[Page 43600]]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 343 and 385

[Docket No. RM98-13-001; Order No. 602-A]


Complaint Procedures

Issued: July 28, 1999.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule; order on rehearing and clarification.

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SUMMARY: On March 31, 1999, the Federal Energy Regulatory Commission 
(Commission) issued a final rule (Order No. 602) revising its 
regulations governing complaints filed with the Commission under the 
Federal Power Act, the Natural Gas Act, the Natural Gas Policy Act, the 
Public Utility Regulatory Policies Act of 1978, the Interstate Commerce 
Act, and the Outer Continental Shelf Lands Act. A number of requests 
for rehearing and clarification of the final rule were filed. The 
general framework established by the complaint rule remains the same. 
The order does, however, grant rehearing and clarification in instances 
where the suggested changes will improve the new procedures and 
contribute to ensuring that the process allows the resolution of 
complaints in the most suitable manner. The order, among other things, 
clarified the types of relief that may be granted with respect to 
complaints, modified certain procedures concerning the treatment of 
privileged information in complaints and answers, modified the 
requirement concerning simultaneous service of complaints, and reduced 
the scope of documentation required in an answer. With respect to 
changes made to the procedural rules applicable to oil pipeline 
proceedings, the order clarifies that the Commission will be flexible 
in its application of the complaint procedures to oil pipelines. The 
order also states that the Commission did not make any changes to the 
substantive regulations or policies governing oil pipeline complaints.

DATES: The regulations are effective September 10, 1999.

ADDRESSES: Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426.

FOR FURTHER INFORMATION CONTACT: David Faerberg, Office of the General 
Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 208-1275.

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 the Public Reference Room 
at 888 First Street, N.E., Room 2A, Washington, D.C. 20426.
    The Commission Issuance Posting System (CIPS) provides access to 
the texts of formal documents issued by the Commission from November 
14, 1994, to the present. CIPS can be accessed via Internet through 
FERC's Home Page (http://www.ferc.fed.us) using the CIPS Link or the 
Energy Information Online icon. Documents will be available on CIPS in 
ASCII and WordPerfect 6.1. User assistance is available at 202-208-2474 
or by E-mail to [email protected].
    This document is also available through the Commission's Records 
and Information Management System (RIMS), an electronic storage and 
retrieval system 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. RIMS is available in the Public Reference 
Room or remotely via Internet through FERC's Homepage using the RIMS 
link or the Energy Information Online icon. User assistance is 
available at 202-208-2222, or by E-mail to [email protected].
    Finally, the complete text on diskette in WordPerfect format may be 
purchased from the Commission's copy contractor, RVJ International, 
Inc. RVJ International, Inc. is located in the Public Reference Room at 
888 First Street, N.E., Washington, D.C. 20426.

Order on Rehearing and Clarification

Before Commissioners: James J. Hoecker, Chairman; Vicky A. Bailey, 
William L. Massey, Linda Breathitt, and Curt Hebert, Jr.

    This order addresses a number of requests for rehearing and 
clarification of the Commission's final rule revising its complaint 
procedures. The general framework established by the complaint rule 
remains the same. The order does, however, grant rehearing and 
clarification in instances where the suggested changes will improve the 
new procedures and contribute to ensuring that the process allows the 
resolution of complaints in the most suitable manner.

I. Background

    On March 31, 1999, the Federal Energy Regulatory Commission 
(Commission) issued a final rule (Order No. 602) revising its 
regulations governing complaints filed with the Commission under the 
Federal Power Act, the Natural Gas Act, the Natural Gas Policy Act, the 
Public Utility Regulatory Policies Act of 1978, the Interstate Commerce 
Act, and the Outer Continental Shelf Lands Act.1 Order No. 
602 was designed to encourage and support consensual resolution of 
complaints, and to organize the complaint procedures so that all 
complaints are handled in a timely and fair manner.
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    \1\ Complaint Procedures, Order No. 602, III FERC Stats. & Regs. 
para. 31,071 (1999), 64 FR 17087 (April 8, 1999).
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    In order to organize the complaint procedures so that all 
complaints are handled in a timely and fair manner, the Commission 
revised Rule 206 of its Rules of Practice and Procedure.2 
Among other things, the Commission required that complaints meet 
certain informational requirements, required answers to be filed in a 
shorter, 20-day time frame, and provided various paths for resolution 
of complaints, including Fast Track processing for complaints that are 
highly time sensitive. The Commission intended these changes to ensure 
that the Commission and all parties to a dispute would have as much 
information as early in the complaint process as possible to evaluate 
their respective positions. The changes were also intended to ensure 
that the process used to resolve a complaint would be suited for the 
facts and circumstances surrounding the complaint, the harm alleged, 
the potential impact on competition, and the amount of expedition 
needed.
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    \2\ 18 CFR 385.206 (1998).
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    The Commission added a new Rule 218 providing for simplified 
procedures for complaints where the amount in controversy is less than 
$100,000 and the impact on other entities is de minimis. The Commission 
adopted these new procedures to provide a process by which small 
controversies can be resolved more simply and expeditiously than more 
complicated matters.
    The Commission also took a number of steps to support its policy of 
promoting consensual resolution of disputes among parties in the first 
instance. The Commission pointed out that the recently created Dispute 
Resolution Service will work with all those interested in Commission 
activities to increase awareness and use of alternative dispute 
resolution (ADR) in all areas the Commission regulates. The Commission 
emphasized that this new service will also help identify cases 
appropriate for ADR processes and

[[Page 43601]]

conduct ADR processes, including convening sessions. To further 
publicize and establish its Enforcement Hotline as a viable alternative 
to the filing of a formal complaint, the Commission codified its 
current Enforcement Hotline procedures.3
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    \3\ 18 CFR Part 1b (1998).
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    The Commission also revised its alternative dispute resolution 
regulations (Rules 604, 605 and 606) 4 to conform to the 
changes made by the Administrative Dispute Resolution Act of 1996 
5 and foster an environment that promotes consensual 
resolution of disputes by eliminating provisions in its regulations 
which were seen as having a chilling effect on the use of ADR.
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    \4\ 18 CFR 385.604-606 (1998).
    \5\ Pub. L. 104-320, 110 Stat. 3870 (October 19, 1996).
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    The Commission also revised certain sections of Part 343, 
Procedural Rules Applicable to Oil Pipeline Proceedings,6 to 
conform to the changes in the Commission's complaint procedures in Part 
385 of the regulations.
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    \6\ 18 CFR Part 343 (1998).
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    Requests for rehearing and/or clarification of Order No. 602 were 
filed by ARCO Products Company, and Ultramar Diamond Shamrock 
Corporation (ARCO); Association of Oil Pipe Lines (AOPL); Chevron Pipe 
Line Company (Chevron Pipe Line); Chevron Products Company (Chevron 
Products); Enron Interstate Pipelines (Enron); Express Pipeline 
Partnership (Express); Indicated Shippers; Interstate Natural Gas 
Association of America (INGAA); Southern Company Services, Inc. 
(Southern Company); and the Williams Companies, Inc. (Williams). Their 
requests for rehearing and/or clarification will be addressed below. 
The topic headings in the discussion section are those used in Order 
No. 602.

II. Discussion

    The Commission continues to encourage and support consensual 
resolution of complaints and reaffirms its commitment to resolving 
disputes in as timely and as fair a manner as possible. The Commission 
has reviewed the requests for rehearing and concludes that in many 
instances the suggestions for change will improve the new procedures 
and contribute to ensuring that the process allows the resolution of 
complaints in the most suitable manner.

A. Informational Requirements for Complaints

    The final rule revised Rule 206 of the Commission's Rules of 
Practice and Procedure to require that a complaint satisfy certain 
informational requirements.
    Indicated Shippers states that Rule 206(b) requires the complainant 
to state whether informal procedures were used to resolve the complaint 
prior to filing. If such procedures were not used, the preamble to the 
final rule indicates that the complainant must explain why. However, 
the regulatory text does not expressly require such an explanation. 
Indicated Shippers submit that the regulatory text should be modified 
to reflect the requirement that an explanation be provided, as 
discussed in the preamble.
    The Commission grants Indicated Shippers' request. In the final 
rule, the Commission strongly encouraged parties to attempt informal 
resolution of their disputes prior to the filing of a formal complaint. 
The Commission therefore adopted the proposal in the NOPR that parties 
be required to explain whether alternative dispute resolution was 
tried, and, if not, why. The regulatory text inadvertently omitted this 
requirement. Therefore, on rehearing Sec. 385.206(b)(9)(i) is revised 
to require a complaint to state ``whether the Enforcement Hotline, 
Dispute Resolution Service, tariff-based dispute resolution mechanisms, 
or other informal dispute resolution procedures were used, or why these 
procedures were not used.''
    In the final rule, the Commission adopted procedures to allow 
complainants and respondents to request privileged treatment of 
information contained in a complaint or answer, and for interested 
persons to obtain the privileged version of the complaint or answer. 
These procedures are contained in Sec. 385.206(e) for complaints and 
Sec. 385.213(c)(5) for answers.
    On rehearing, the Indicated Shippers assert that the procedure in 
the final rule creates the potential that complainants would be 
required to provide confidential materials to non-parties. Indicated 
Shippers submit that the ten-day period contemplated for requesting and 
receiving confidential materials will conclude twenty days before 
answers and interventions are due. Indicated Shippers contend that a 
complainant would be required to produce confidential material for an 
entity that had not intervened at that point, and might not intervene 
at all. Indicated Shippers propose that the Commission amend the rule 
to provide that a complainant need not disclose confidential material 
to a non-party. Indicated Shippers argue that the complainant should be 
required to serve the material by the later of (1) five days after 
receipt of the request or (2) the date of the requesting party's motion 
to intervene. Indicated Shippers states that because respondents are 
automatically parties, the complainant would be required to provide the 
confidential materials to the respondent within five days of the 
respondent's request as provided in the final rule. In addition, 
Indicated Shippers state that an interested person seeking to examine 
the material before the intervention deadline could always intervene in 
advance of the deadline.
    Indicated Shippers argue that the wording of Rule 206(e)(3) appears 
to foreclose any requests for confidential materials once the initial 
five-day period following the filing of the complaint has expired. 
Indicated Shippers propose that the Commission not adopt a deadline for 
requests for confidential materials. Indicated Shippers contend that 
truly interested person have an obvious motivation to obtain the 
confidential material as soon as possible, in order to participate 
meaningfully, and do not need the compulsion of a deadline. However, 
the Commission should not eliminate the five-day deadline for 
complainants to furnish the confidential material to parties once a 
request for such information is made. Indicated Shippers submit that 
the Commission should similarly modify the corresponding provisions of 
Rule 213.
    The Commission grants Indicated Shippers request for rehearing. The 
Commission's intention in establishing procedures for privileged 
information was to allow a complainant to have adequate protection for 
information it believed was commercially sensitive while allowing the 
respondent and interested parties an opportunity to receive the 
privileged information in a meaningful time for filing answers and 
comments. The Commission did not intend for information to be available 
to non-parties. The Commission also agrees with Indicated Shippers 
argument that a deadline for requesting privileged information is not 
necessary because a party has an obvious motivation to receive the 
information quickly in order to meaningfully participate in the 
proceeding. The Commission will therefore make the modifications 
suggested by Indicated Shippers.
    Section 385.206(e)(3), concerning procedures for privileged 
treatment of information in complaints, will now read:

    The respondent and any interested person who filed a motion to 
intervene in the complaint proceeding may make a written request to 
the complainant for a copy of the complete complaint. The request 
must include an executed copy of the protective

[[Page 43602]]

agreement and, for interested persons other than the respondent, a 
copy of the motion to intervene. Any person may file an objection to 
the proposed form of protective agreement.

    Section 385.213(c)(5)(iii), concerning procedures for privileged 
treatment of information in answers, will now read:

    The complainant and any interested person who has filed a motion 
to intervene may make a written request to the respondent for a copy 
of the complete answer. The request must include an executed copy of 
the protective agreement and, for interested persons other than the 
complainant, a copy of the motion to intervene. Any person may file 
an objection to the proposed form of protective agreement.

    In the final rule, the Commission stated that the procedures for 
requesting privileged treatment have the advantage of enabling the 
parties to resolve disclosure disputes through consensual agreement 
among themselves without the need for Commission involvement in every 
instance involving privileged information. The Commission stated that 
it could still step in if parties were unable to agree on protective 
conditions or expressed a need for the added assurance against 
disclosure that would be offered by a Commission-issued protective 
order. The Commission stated that, if necessary, it could develop a 
model protective agreement akin to the model protective order developed 
recently by the Office of Administrative Law Judges.
    While not seeking rehearing, AOPL and Chevron Pipe Line urge the 
Commission to seek comments on any such model protective agreement 
before adopting it. Their concerns stem from the fact that what may be 
an acceptable protective agreement for the natural gas and electric 
industries may not be acceptable for an oil pipeline subject to Section 
15(13) of the Interstate Commerce Act. Section 15(13) of the Interstate 
Commerce Act makes it a crime for an oil pipeline to divulge 
information regarding its shippers. In Chevron Pipe Line's view, the 
only manner in which it can provide Section 15(13) information to 
another party in a proceeding (absent the shipper's consent) is if the 
protective agreement limits the availability of that information to 
outside counsel and expert witnesses. Chevron Pipe Line submits that 
the model protective agreement adopted by the Chief Judge, referenced 
by the Commission in Order No. 602, does not include that limitation.
    The Commission understands the concerns of the oil pipeline 
industry and does not intend to adopt any model protective agreements 
or orders without input from the affected industries. If, in the 
future, the Commission determines that obtaining consensual agreement 
concerning privileged information is proving problematic, the 
Commission will then decide how to proceed in crafting model protective 
agreements or orders.
    Southern Company asserts that while deadlines are imposed for 
filing answers, complainants are under no obligation to initiate the 
grievance process within any particular timeframe after the occurrence 
of the event giving rise to the dispute. This disparate treatment would 
allow complainants to spend unlimited time preparing a detailed 
complaint, complete with supporting expert witness testimony and 
exhibits. The respondent would then only have twenty days to 
investigate the facts, perform any needed research and prepare an 
answer. Such an approach is unfair and raises serious due process 
questions. Southern Company requests that the Commission revise the 
complaint procedures to limit availability of expedited adjudication to 
instances when the complainant shows that it initiated the grievance 
resolution process promptly following the occurrence of the event that 
underlies the dispute. In this regard, it would be reasonable for 
complainants to initiate the process within the same time frames 
applicable for respondents to submit an answer. Southern Company 
asserts that if a complainant is unable to initiate the process within 
those deadlines, it would be unreasonable to require respondents to 
answer within those timeframes. Southern Company contends that such an 
approach should not bar complaints that do not meet the deadlines, but 
the abbreviated timeframes for answers and Commission action set forth 
in the final rule should not apply to those complaints.
    The Commission denies Southern Company's request for rehearing. 
Southern Company's request is essentially that a complainant be 
required to file a complaint within 20 days after the occurrence of the 
event underlying the complaint. In the Commission's view, this sort of 
``statute of limitations'' requirement is inappropriate. The Commission 
and the parties would become bogged down unnecessarily in details 
concerning what is the event or occurrence which gave rise to the 
complaint, and from what event the deadline should run. Complainants 
have an incentive to file their complaints as quickly as possible so 
that they may obtain prompt relief, where appropriate. Further, given 
the more detailed filing requirements set forth in the complaint rule, 
it would be burdensome to require a complainant to file a complaint 
within 20 days after the event giving rise to the complaint. 
Nevertheless, the Commission clarifies that if a respondent wants 
additional time to file an answer it may request it. The Commission 
would consider a long time elapsed between the event giving rise to the 
complaint and the filing of the complaint as a factor justifying an 
extension of time. The Commission will be flexible in considering 
requests for extension and will favor granting them in circumstances 
where an extension will foster development of a complete record early 
in the complaint process.

B. Informal Resolution

    Throughout the final rule the Commission reiterated its interest in 
strongly encouraging parties to attempt informal resolution of their 
dispute. In that regard the Commission had requested information on 
what professional assistance the Commission might provide to facilitate 
informal dispute resolution. In response a number of parties requested 
publication of complaints on the Commission's web site, a complaint 
status report on the Commission's web site, or a procedural hotline 
concerning a party's options for complaints. The Commission stated that 
although it could put certain basic information about a party's options 
in filing a complaint on the FERC Homepage, the idea of a complaint 
status report, as well as other electronic access issues relating to 
complaints, would be considered as part of the Commission's broader 
review of its information technology capabilities as well as the 
proceeding in Docket No. PL98-1-000 concerning public access to 
information and electronic filing.
    Indicated Shippers assert the final rule creates the potential that 
interested persons not actually served with a complaint will not become 
aware of the complaint in time to intervene and present their legal 
positions and factual support in a timely manner. The late-filed and or 
incomplete interventions and answers which could result from inadequate 
notice may bog down the complaint proceedings with piecemeal record 
development and due process issues.
    Given that the Commission accepts certain types of filings 
electronically, Indicated Shippers believe that the Commission should 
be able to post the full text of complaints on its web site. At a 
minimum, the Commission should post on its homepage a centralized list 
of pending complaints, comparable to the rate filings list on the 
Commission's gas page, which provides access to files. The listing 
should include (1) the names of the complainant and respondent, (2)

[[Page 43603]]

the docket number assigned, (3) the date the complaint was filed, and 
(4) whether the complaint included confidential information submitted 
under Part 388, for which execution of a confidentiality agreement 
would be required to obtain access. With this information, potentially 
affected parties reviewing the Commission's homepage could then access 
the notice via the Commission Issuances Posting System (CIPS) and the 
complaint itself via the Records and Information Management System 
(RMS).
    In the alternative, the Commission could require the regulated 
entity to which the complaint relates to post the complaint, or notice 
of the complaint including filing date and docket number of the 
regulated entity's electronic bulletin board or web page.
    The Commission agrees that Indicated Shippers' suggestion to 
include basic information on the Commission's Homepage is reasonable 
and may prove beneficial in notifying potential parties if issues in a 
complaint affect them. The Commission's goal continues to be to provide 
the public with as much information as possible with respect to 
complaints and the complaint process. Therefore, the Commission will be 
adding to its Homepage a list of all complaints pending with the 
Commission. The list will include the information suggested by the 
Indicated Shippers.

C. Simultaneous Service

    In the final rule, the Commission adopted Sec. 385.206(c) to read 
as follows:

    Any person filing a complaint must serve a copy of the complaint 
on the respondent, affected regulatory agencies, and others the 
complainant reasonably knows may be expected to be affected by the 
complaint. Service must be simultaneous with filing at the 
Commission for respondents and affected entities in the same 
metropolitan area as the complainant. Simultaneous or overnight 
service is acceptable for respondents and affected entities outside 
the complainant's metropolitan area. Simultaneous service can be 
accomplished through electronic mail, fax, express delivery, or 
messenger.

    On rehearing, AOPL and Chevron Pipe Line assert that service 
simultaneous with filing should be by hand, fax or electronic mail 
unless demonstrably impossible. AOPL states that while hand service is 
certainly dependent on the geographic proximity of the complaint and 
respondent, fax and electronic mail are not. AOPL submits that there is 
no reason why a respondent should not, at a minimum, get a copy of the 
complaint the day it is filed unless complainant can prove there was no 
fax or electronic mail service available because of circumstances 
outside the complainant's control. A copy of the full filing should 
then follow by overnight mail. Chevron Pipe Line asserts that there is 
no practical distinction that simultaneous service is required only if 
the respondent is in the same metropolitan area as the complainant--
that distinction does not take account of the real-life considerations 
involved in filing complaints with the Commission. If the entity filing 
the complaint is located outside the Washington, D.C. area, it will 
generally file the complaint with the Commission by next day delivery 
or by mail. In that case, there is no reason that the complainant 
cannot serve the respondent on the same day as the complaint is filed, 
regardless of where the respondent is located. Chevron Pipe Line 
asserts that the Commission should remedy this unnecessary distinction 
and require simultaneous service of all complaints on the respondent, 
while allowing next day service on any other required entity.
    The Commission grants the requests for rehearing. The Commission 
concludes that the reference to a ``metropolitan area'' in the 
regulations could lead to unreasonable results. For example, as Chevron 
Pipe Line points out, under the regulation as written, a Washington, 
D.C. law firm filing a complaint on behalf of a Houston client would 
have to make simultaneous service on a Houston respondent, while 
service on a Philadelphia or Washington, D.C. respondent could be the 
next day. Therefore, Sec. 385.206(c) will be revised to require 
simultaneous service on the respondent regardless of the respondent's 
location. The complainant should take all reasonable steps to serve the 
respondent simultaneous with filing at the Commission. Simultaneous or 
overnight service will be acceptable for all other affected 
entities.7
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    \7\ The Commission is also revising section 385.206(c) to 
require that simultaneous service by electronic mail must be in 
accordance with section 385.2010(f)(3) as promulgated in Order No. 
604, Electronic Service of Documents, 87 FERC para. 61,205 (1999).
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    INGAA seeks clarification that, as part of the service requirement, 
parties must serve the complaint on the corporate official appointed to 
receive such service by the regulated entity. Thus, all Commission-
regulated entities should be required to appoint an official to receive 
service of complaints, which official is to be designated on the 
company's electronic bulletin board or web site. INGAA states that 
absent this requirement, a complaint served on a corporation without 
identifying a specific individual recipient could be misrouted or its 
significance overlooked. INGAA submits that by the time the responsible 
officials become aware that a complaint has been filed, a large portion 
of time for answering may have been lost, adversely affecting the 
completeness and timeliness of the answer. INGAA asserts that a uniform 
requirement that every regulated entity appoint a corporate official 
responsible for receiving service of complaints, and a corollary 
requirement that complainants serve that official directly, will ensure 
that responses to those complaints are filed expeditiously, thus 
furthering the goals of the final rule.
    The Commission finds INGAA's suggestion to be reasonable given the 
shorter amount of time respondents have to answer a complaint under the 
revised regulations. The requirement that a corporate official be 
designated to receive service of complaints should ensure expeditious 
receipt and handling of complaints by regulated entities. The 
Commission concludes that designating a corporate official to receive 
service would also be of benefit in other types of proceedings. The 
Commission therefore is issuing a notice of proposed rulemaking 
concurrently with this order proposing to add a new section (i) to 
Sec. 385.2010 (Rule 2010) to require that all entities regulated by the 
Commission designate corporate officials or other persons to receive 
service of certain types of pleadings where a person to receive service 
has not otherwise been designated under the Commission's regulations.

D. Time Period for Answers, Comments and Interventions

    Section 385.206(f) adopted in the final rule requires that answers, 
interventions and comments to a complaint must be filed within 20 days 
after the complaint is filed or, in cases where the complainant 
requests privileged treatment for information in its complaint, 30 days 
after the complaint is filed.
    On rehearing, AOPL asserts that the time to answer should run from 
issuance of the notice of the complaint. AOPL argues that there is a 
real potential that interested parties who may be indirectly affected 
by a complaint may not be among those that would normally receive a 
copy of the complaint. Thus, not being served under the Commission's 
rules, they may not learn of the complaint until much of the already 
limited answer period has passed. AOPL submits that much would be 
gained from a due process standpoint, and little would be lost in terms 
of time, if the response, comments

[[Page 43604]]

and intervention period began to run from the issuance of the notice.
    The Commission recognizes that there may be interested persons who 
may not receive service of the complaint even using the broad category 
of ``others the complainant reasonably knows may be expected to be 
affected by the complaint,'' as required for service in Rule 206(c). 
Nevertheless, in the Commission's view, the time for filing answers 
should be determined from the date of filing of the complaint, rather 
than the notice. The Commission has found that in most instances 
interested parties are capable of responding to filings in a thoroughly 
capable manner even when doing so under time requirements shorter than 
those for answers to complaints.8 In addition, AOPL's 
concerns should be alleviated by the fact that the Commission will be 
posting basic information on a complaint on the Commission's web site 
when it is received. This will permit interested persons to have the 
same amount of time to file answers, interventions, or comments as 
parties served under the regulations. The Commission also will remain 
flexible in considering the circumstances supporting any requests for 
extension of time to answer.
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    \8\ See, for example, 18 CFR 154.210, which requires that 
protests to tariff filings under section 4 of the Natural Gas Act 
must be filed not later than 12 days after the date of the tariff 
filing.
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    AOPL and Express assert that to the extent that the parties wish to 
pursue dispute resolution prior to the answer due date, the Commission 
should toll the answer period. If the complainant and the respondent 
agree to stay the answer in order to pursue settlement negotiations or 
some form of dispute resolution, the Commission should support such 
action. AOPL and Express contend that the Commission's rules should be 
modified to permit stay of the answer if settlement is being actively 
pursued.
    The Commission will entertain requests to extend the time for 
answers pending the outcome of settlement negotiations or alternative 
dispute resolution. This is in keeping with one of the principles of 
the complaint rule of encouraging consensual resolution where possible. 
A further change to the regulations to recognize this, however, is 
unnecessary. The parties can simply file a motion pursuant to 
Sec. 385.2008 requesting an extension of time within which to file an 
answer.
    Chevron Pipe Line contends that the Commission should restore 30 
days as the generally applicable period for filing an answer. Chevron 
Pipe Line asserts that a 20 calendar day response period, especially 
with next day service, does not permit sufficient time in which to 
research the facts and issues raised by a complex complaint and prepare 
a written response. Chevron Pipe Line argues that it is unnecessary to 
shorten the standard period to 20 calendar days, especially since the 
Commission is establishing procedures in which answers to extremely 
time sensitive complaints may be required in a shorter period under 
fast track processing. If the Commission believes that fast track 
processing is not, by itself, sufficient to handle time-sensitive 
matters, it should amend its rules to allow a complainant to seek a 
shortening of the answering period when it files its complaint, upon 
the proper showing. Chevron Pipe Line submits that under such a 
procedure, the answer would be filed more quickly, but the complainant 
would be accorded standard, not fast track, processing. Chevron Pipe 
Line asserts that by allowing only 20 calendar days and by beginning 
the period with the filing of the complaint rather than its service, 
the Commission is actually allotting less time for answers to 
complaints filed with it than is allotted for complaints filed in 
federal court. Chevron Pipe Line states that Rule 12 of the Federal 
Rules of Civil Procedure provide that answers must be filed within 20 
days of service of the summons and complaint.
    The Commission denies Chevron Pipe Line's request for rehearing. 
The Commission considers twenty days to be appropriate because it 
provides a respondent with a sufficient amount of time to answer a 
complaint while furthering the goal of speeding up the complaint 
resolution process. In addition, as more fully discussed below, the 
Commission is modifying the requirement that respondents provide ``all 
documents supporting the answer'' to ``documents supporting the 
answer.'' This will lessen the burden on respondents when they are 
preparing their answers. Finally, as also discussed below, and as 
touched on earlier, where good cause is shown, the Commission will give 
respondents more time to file an answer.
    Williams urges the Commission to clarify that Rule 2008 of the 
Commission's Rules of Practice and Procedure is applicable to the 
complaint procedures and that the Commission will grant extensions of 
time to respond to complaint for good cause shown. Williams is 
concerned that in certain instances it may be impossible to meet the 
accelerated deadlines set forth in the complaint procedures.
    The Commission clarifies that parties may file requests for 
extensions of time with respect to filing pleadings in a complaint case 
and the Commission may grant such requests pursuant to Rule 2008. As 
stated earlier, the Commission will consider extending the time for 
answering when an extension will further the goal of ensuring as 
complete a record as possible early in the complaint process.
    The Commission will also be making a conforming change to Rule 
213(d). That section currently states that answers to pleadings are due 
30 days after the filing of the pleading or, if a notice is published 
in the Federal Register, 30 days after the publication of the notice. 
The Commission will modify the regulation so it will not be applicable 
to answers to complaints. This conforming change should have been made 
in the Final Rule but was overlooked.

D. Revisions to Oil Pipeline Regulations

    The final rule revised certain sections of Part 343. Procedural 
Rules Applicable to Oil Pipeline Proceedings, to conform with the 
changes to the Commission's complaint procedures.
    AOPL, Chevron Products, and Express assert that the Commission 
should exclude oil pipelines from the new rules and leave the 
distinctly different and entirely separate oil pipeline complaint 
procedures in place. Petitioners assert that the Commission's own 
discussion of the need for the new procedures only cited transitions in 
the natural gas and electric industries as the motivation for the new 
rules. They argue that nowhere in that discussion does the Commission 
recognize any transition or other development occurring in the oil 
pipeline arena militating for change. Further, petitioners assert that 
the very nature of the issues traditionally addressed in the oil 
pipeline arena are far more complex and factually based than the more 
generic, policy oriented disputes currently arising in the natural gas 
and electric sectors.
    The Commission's purpose in revising the oil pipeline regulations 
was to ensure the consistency of the complaint procedures for all 
industries regulated by the Commission, while preserving the rate 
complaint standards adopted as an integral part of the package of 
ratemaking changes enacted in response to the Energy Policy Act of 
1992. In the Commission's view, this purpose is still valid. 
Nevertheless, the Commission recognizes that the oil pipeline industry 
is not undergoing the same changes as the electric and gas industries. 
The Commission also acknowledges that complaint cases against oil 
pipelines in many instances may not require or lend themselves to the 
type of faster decision

[[Page 43605]]

contemplated by the complaint rule. Accordingly, where the nature of a 
complaint against an oil pipeline may not fit neatly into the complaint 
resolution paths adopted in the Final Rule, the Commission will be 
flexible and devise a suitable procedure that will ensure resolution of 
the dispute in a manner that best serves all. Such an approach, which 
applies to other complaints as well, is best applied on a case-by-case 
basis, rather than through changes to the complaint regulations.
    ARCO asserts that the standard of ``substantially in excess'' of 
cost based rates 9 is illegal and inconsistent with the 
decision of the Court of Appeals for the District of Columbia circuit 
in Farmers' Union Central Exchange, Inc. et al. v. FERC, 734 F.2d 1486, 
1510 (D.C. Cir.), cert. denied, 469 U.S. 1034 (1984). ARCO asserts that 
the final rule fails to state all requirements for qualifying for or 
complaining against ``market-based'' rates, and is thus inconsistent 
with Farmers Union II. ARCO contends that the final rule conflicts with 
the actual practice of the Commission with respect to requirements for 
a complaint against cost-based or market-based rates. One or the other 
must conform. ARCO submits that the final rule, if it encompasses the 
process now in effect, discriminates against shippers seeking redress 
of grievances against oil pipelines and results in the effective 
refusal of the agency to do its statutory duty of ensuring that all 
rates are just and reasonable. ARCO contends that the Commission's new 
complaint process for shippers seeking rate redress from oil pipelines 
will require six different and sequential order, all subject to 
judicial review.
---------------------------------------------------------------------------

    \9\ The standard is set forth in Sec. 343.2(c) of the 
Commission's regulations and refers to the standard for challenging 
rates established under the indexing regulations of Sec. 342.3 and 
the standard for challenging settlement rates established under 
Sec. 342.4(c). The standard was established in Order No. 561, 
Revisions to Oil Pipeline Regulations Pursuant to the Energy Policy 
Act of 1992, FERC Stats. & Regs. (Regulation Preambles 199-1996) 
Sec. 30,985 (1993). 58 FR 58753 (November 4, 1993), order on reh'g, 
Order No. 561-A, FERC Stats. & Regs. (Regulation Preambles 1991-
1996) Sec. 31,000 (1994), 59 FR 40243 (August 8, 1994).
---------------------------------------------------------------------------

    In the Final Rule the Commission made only two procedural changes 
to the oil pipeline regulations with respect to complaints. First, 
depending on whether the complaint involved rate or non-rate matters, 
certain information requirements in Rule 206 would have to be followed. 
Second, the Commission required that answers to complaints must be 
filed within 20 days after the complaint is filed. The Commission did 
not make any changes to the substantive regulations or policies 
governing oil pipeline complaints. ARCO's assertion in its request for 
rehearing that standards used to examine different types of rates are 
inconsistent with various court cases is inapposite because the 
complaint rule did not make any changes to oil pipeline ratemaking 
standards.10 Accordingly, ARCO's request for rehearing is 
denied.
---------------------------------------------------------------------------

    \10\ Section 13(1) of the Interstate Commerce Act provides that 
anyone can file a complaint against ``anything done or omitted to be 
done by any common carrier * * *'' Thus, any complaint against an 
oil pipeline's market-based rates would fall under this provision 
and the burden would fall to the complainant to establish that those 
rates are no longer just and reasonable. The Commission has not 
established an evidentiary standard for adjudicating such complaints 
in this or any other proceeding. As for challenges to rates deemed 
just and reasonable under Section 1803(a) of the Energy Policy Act, 
the Act itself at Section 1803(b) establishes a ``substantial 
change'' standard that a complainant must meet.
---------------------------------------------------------------------------

E. Content of Answers

    Section 385.213(c)(4) adopted in the final rule requires that 
answers include ``all documents that support the facts in the answer in 
possession of, or otherwise attainable by, the respondent, including, 
but not limited to, contracts, affidavits, and testimony.''
    On rehearing, AOPL, Chevron Pipe Line and Express assert that the 
requirements for answers are too complex and burdensome. AOPL asserts 
that the final rule applies parallel requirements for supporting 
affidavits, testimony and documentation for complaint and answer alike. 
AOPL submits that for practical and procedural reasons, this 
parallelism is both unreasonable and unnecessary. AOPL argues that 
respondents should be required to demonstrate in their answers the 
nature of the factual conflict posed by the complaint. They should not 
be required to file a responsive case in chief accompanied by ``all 
documents'' that would support their position. AOPL contends that the 
Commission should seek a middle ground between the new requirements and 
the prior rule. Chevron Pipe Line asserts that requiring the provision 
of all documents may be construed as moving discovery to the answering 
stage of a proceeding. Chevron Pipe Line argues that the reference to 
``testimony'' is unnecessary, since factual support can be provided 
through affidavits, and is procedurally confusing, since testimony 
usually means a party's case developed after necessary discovery. 
Chevron Pipe Line suggests that the Commission remove the word ``all'' 
from before documents and by deleting the reference to ``testimony'' in 
Rule 213(c)(4). Chevron Pipe Line states that the rule would then call 
for a provision of documents supporting the facts in the answer. 
Chevron Pipe Line submits that respondents will be properly motivated 
to include supporting documents, especially since they will be aware 
that certain matters can be decided on the basis of the complaint and 
answer alone. Chevron Pipe Line also contends that the Commission's 
regulation should provide that when time to file an answer is shortened 
for fast track processing, the respondent is required to provide only 
readily accessible documents.
    The Commission concludes that it would be reasonable to require 
respondents to provide ``documents that support the facts in the 
answer'' as opposed to ``all documents that support the facts in the 
answer.'' The reference to ``all documents'' could be considered a 
burdensome requirement given that respondents have 20 days to file an 
answer. The Commission's intent was not to move discovery to an earlier 
stage of the proceeding but rather to ensure that an answer was 
properly supported by documentation. In the Commission's view, a 
respondent will be motivated to provide all relevant documents that 
support its case, even if ``all documents'' are not required. Since a 
complaint case may be decided on the pleadings alone, a respondent runs 
the risk of an adverse decision if it decides to withhold documents 
beneficial to its position. The requirements for an answer need not 
parallel and be as stringent as those for a complaint because it is the 
complainant who bears the burden of proof. Accordingly, the Commission 
will grant rehearing and strike the word ``all'' before the word 
documents in Sec. 385.213(c)(4).
    The Commission clarifies that the reference to testimony in 
Sec. 385.213(c)(4) does not require a respondent to prepare new 
testimony for a particular complaint proceeding. In order to avoid any 
confusion, the Commission will delete the reference to ``testimony'' in 
Sec. 385.213(c)(4).11 The references to ``contract, 
affidavits, and testimony'' in both Sec. 385.206(b)(8) and 
Sec. 385.213(c)(4) were intended to be examples of the types of 
documentation that complainants and respondents could provide. If it 
wishes, a party may prepare and submit testimony for a complaint 
proceeding. It is more likely, however, that a party would provide 
preexisting testimony which could shed light on an issue raised in the 
proceeding. Such testimony, for example, could be prior testimony in

[[Page 43606]]

another case describing certain aspects of a pipeline's operations.
---------------------------------------------------------------------------

    \11\ The Commission is also making the same change in 
Sec. 385.206(b)(8).
---------------------------------------------------------------------------

    Given the short time frame for an answer when a complaint is 
assigned to the Fast Track process, the Commission will look at the 
practicalities of a respondent being able to answer a complaint with 
extensive detail and documentation on a case-by-case basis. This 
assurance should alleviate Chevron Pipe Line's concerns.
    Indicated Shippers assert that the final rule requires the 
respondent to serve its answer, without any confidential material and 
accompanied by a form of protective agreement, to each entity that has 
been served pursuant to Rule 206. It is possible, however, that an 
interested person that was not served by the complainant would have 
intervened in the complaint docket before the respondent files the 
answer. Indicated Shippers submit that such entities, as parties, 
should receive service of the response, including a form of protective 
agreement if the response contains confidential material. Indicated 
Shippers assert that Rule 213 should reflect this requirement.
    Indicated Shippers' request is reasonable, and, accordingly, the 
Commission grants rehearing. To allow for the possibility of a person 
intervening early who would like to be served the answer, 
Sec. 385.213(c)(5)(ii) will be modified to read ``A respondent must 
provide a copy of its answer without the privileged information and its 
proposed form of protective agreement to each entity that either has 
been served pursuant to Sec. 385.206(c) or whose name is on the 
official service list for the proceeding compiled by the Secretary.''

F. Complaint Resolution Paths

    Section 385.206(g) adopted in the final rule describes a number of 
procedural options that the Commission may use to resolve issues raised 
in complaints. These complaint resolution paths are (1) alternative 
dispute resolution, (2) decision on the pleadings by the Commission, 
and (3) hearing before an ALJ. Where a highly credible claim for relief 
is presented, and a persuasive showing is made that standard complaint 
resolution processing may not provide timely relief as quickly as 
circumstances may demand, the Commission will put the complaint on a 
Fast Track, to provide for expedited action by the Commission or an ALJ 
in a matter of weeks. The Fast Track process is described in 
Sec. 385.206(h) of the regulations adopted by the final rule. 
Preliminary relief pending a resolution of the complaint by either the 
Commission or an ALJ may also be requested. A ruling on preliminary 
relief by an ALJ would be appealable to the Commission. Such an appeal 
is provided for in Sec. 385.206(g)(2) adopted in the final rule.
    Indicated Shippers supports the fast track concept in general. 
However, it states that without prompt notice, the procedure will 
create considerable uncertainty for the respondent and interested 
persons. Indicated Shippers contend that the Commission could alleviate 
uncertainty for the respondent and others by providing prompt notice 
adopting a Fast Track procedure and establishing an answer/intervention 
deadline or declining to adopt a Fast Track procedure. Ideally, such 
notice should be provided by the close of the business on the first 
business day following the filing of the complaint. Indicated Shippers 
submit that, in that way, the respondent and intervenors will have 
certainty quickly as to (1) whether the Commission will shorten the 
answer and intervention deadline, and (2) what the new deadline will 
be. Moreover, the Commission should not establish an answer/
intervention deadline that is shorter than ten days, in keeping with 
the comments on the NOPR.
    When it receives a complaint requesting Fast Track treatment the 
Commission will endeavor to issue, no later than the next business day 
following the filing of the complaint, a notice describing the 
complaint, stating whether the Fast Track process is to be used and, if 
so, the deadline for answers, interventions and comments, as well as 
any other information concerning the procedures to be used.
    Enron, INGAA and Williams assert that the Commission has exceeded 
its NGA authority in specifying that interim relief is available for 
Natural Gas Act Section 5 complaint proceedings. Enron asserts that 
Section 5(a) of the NGA requires that the Commission must make a 
finding that a rate, practice or contract is unjust, unreasonable, 
unduly discriminatory, or preferential prior to fixing a new rate, 
practice or contract. Thus, Enron asserts, the NGA explicitly states 
that which must be proven in order for the Commission to impose a 
change. Enron argues that an order, even an interim order, mandating 
changes in a pipeline's rates or service must be based on a finding of 
substantial evidence. Enron submits that the Commission cannot now 
substitute a different standard. Enron contends that the standard in 
Virginia Petroleum Jobber Ass'n v. FPC, 259 F.2d 921 (D.C. Cir. 1958), 
cited in the final rule, does not satisfy the legal requirement of NGA 
Section 5(a). Enron states that a court may grant preliminary relief 
based merely upon the determination that the complainant is likely to 
succeed on the merits. Enron asserts that it is not sufficient under 
NGA section 5(a) that the Commission find merely that the action is 
likely to be found unjust, unreasonable, unduly discriminatory or 
preferential. Enron also contends that the absence of explicit 
statutory language authorizing preliminary relief is evidence that 
Congress did not intend to extend authority to the Commission.
    INGAA asserts that the Commission itself has recognized that it has 
no authority under section 5 to grant interim relief.12 
INGAA asserts that the Commission's self grant of authority to order 
preliminary relief in this proceeding in a section 5 complaint case 
flies in the face of the explicit language of the statute that requires 
a hearing, with a final merits decision that the company's actions are 
unjust and unreasonable, prior to the imposition of any remedy. INGAA 
also cites American Smelting and Refining Co. v. FPC, 494 F. 2d 925, 
933 (D.C. Cir. 1974) where the court held that:
---------------------------------------------------------------------------

    \12\ Citing, Southern Natural Gas Co., 66 FERC para. 61,302 at 
61,867 (1994) (stating that in Western Resources, Inc. v. FERC, 9 
F.3d 1568, 1578 (D.C. Cir. 1993) the court found unlawful the 
Commission's attempt to replace the pipeline's pre-existing backhaul 
rate on an interim basis because it failed to meet the section 5 
requirements).

[t]he ``core section'' underlying the orders now before us is 
section 5(a) which empowers the Commission, on its own motion, after 
hearing, to correct discriminatory practices by natural gas 
companies. Like any order issued pursuant to section 5(a), an 
interim order can only issue after full hearing and must include a 
statement or reasons based upon findings of fact which are supported 
by substantial evidence in the record. No emergency can excuse these 
---------------------------------------------------------------------------
procedural requirements.

Thus, INGAA asserts, the court in American Smelting recognized that the 
Commission may not issue an interim order as provided in the final 
complaint rule.
    The Commission will clarify what types of relief the Commission may 
provide under the complaint rule. At the outset, the Commission wishes 
to make it clear that it will act only where it has authority under the 
various statutes administered by the Commission. The final rule was 
designed to provide potential complainants with as many procedural 
options as possible to seek redress of their complaints given the 
short-term and dynamic nature of energy markets. The Commission 
acknowledges that use of certain terminology in the final rule

[[Page 43607]]

may have led to confusion and concern on the part of many parties. By 
describing how the Commission envisions the complaint process working, 
the Commission hopes to eliminate such concern and confusion.
    The Commission will eliminate all references to preliminary relief, 
other than stays or extensions of time, in the complaint regulations. 
Thus, sections 385.206(b)(7) and 385.206(h) will be modified and 
section 385.206(g)(2) will be deleted. In addition, the standards in 
section (b)(7)(i) through (iv), which are based on Virginia Petroleum 
Jobber Ass'n v. FPC, 259 F.2d 921 (D.C. Cir. 1958), will also be 
deleted. In the Commission's view, these changes should eliminate 
certain parties' concern that the Commission was attempting to 
establish procedures for granting injunctive-type relief.
    There may be cases, however, in which the Commission can issue what 
could be categorized as an ``interim'' or ``preliminary'' order in a 
complaint proceeding pursuant to existing authorities. For example, a 
complainant may assert that a respondent's conduct is so egregious or 
the evidence is so substantial supporting its case that the Commission 
needs to take some immediate action. In filing its complaint, a 
complainant could indicate that its evidence is so substantial as to 
establish a prima facie case of a violation of the relevant statutory 
standard or regulatory requirement. In these instances, the Commission 
could pursue several options. If the Commission were to find the 
complainant's case compelling based upon substantial evidence, the 
Commission sua sponte could issue a show cause or declaratory order 
based on the facts known at that time prior to the answer being filed. 
The respondent would then be directed to address the requirements of 
the order rather than file an answer. If the Commission did not find 
that immediate action was appropriate, the Commission would wait for 
the respondent to file an answer and then decide the appropriate course 
of action. This type of relief may be appropriate in certain limited 
circumstances and is within the Commission's authority to grant. 
Further, a respondent's due process rights are protected because it has 
the opportunity to respond to the show cause or declaratory order.
    The Commission could also take such other ``interim'' or 
``preliminary'' actions, as it can now, such as issuing an order 
granting a stay or an order granting an extension of time, stop work 
order, or other orders contemplated by certificate or hydroelectric 
licensing conditions. In addition, a complainant may request forms of 
relief which it believes is within the Commission's authority to grant. 
The Commission will decide whether the relief may be granted on a case-
by-case basis. Accordingly, the requests for rehearing are granted 
consistent with the discussion above.
    Indicated Shippers assert that Rule 206(g)(1)(i) as codified states 
that the Commission may assign a case to be resolved through 
alternative dispute resolution or ``assign the case to a settlement 
judge in accordance with section 385.603.'' However, Rule 603 states 
that the Commission, instead of assigning cases directly to settlement 
judges, directs that the Chief Administrative Law Judge appoint a 
settlement judge. Indicated Shippers request that Rule 206(g)(1)(i) be 
revised to conform to Rule 603.
    The Commission grants Indicated Shippers' request for rehearing 
since it accurately reflects the Commission's regulations. Therefore, 
Sec. 385.206(g)(1)(i) will be modified to read ``The Commission may 
assign a case to be resolved through alternative dispute resolution 
procedures in accordance with Secs. 385.604-606, in cases where the 
affected parties consent, or the Commission may order the appointment 
of a settlement judge in accordance with section 385.603.''

G. Simplified Procedures for Small Controversies

    The final rule codified in new Rule 218 procedures for complaints 
involving small controversies that will allow them to be resolved more 
simply and expeditiously than more complicated matters. The procedure 
will be available if the amount in controversy is less than $100,000 
and the impact on other entities is de minimis. Among other things, 
answers, interventions and comments are due within 10 days after the 
filing of the complaint.
    Chevron Pipe Line asserts that the 10 day answer period is too 
short a time period (a maximum of seven business days if the complaint 
is filed on a Friday, including the day of receipt of the complaint) 
and there is no justification for adopting a shorter time than the 
normal period for answers. In Order No. 602, the Commission recognized 
that fast track processing will place a strain on its resources. In the 
same manner, preparing answers to complaints places a strain on the 
respondent's resources. Chevron Pipe Line asserts that business 
personnel necessary for the preparation of answers to complaints have 
other responsibilities, which cannot be completely ignored in favor of 
preparing the answer. Chevron Pipe Line contends that the Commission 
should not intensify that unavoidable strain with a 10 day answering 
period. Rather, it should allow the normal period for answers to small 
controversy complaints, and, amend its rules to allow a complainant to 
seek a shorter period upon the proper showing.
    The Commission denies Chevron Pipe Line's rehearing. In the 
Commission's view, the 10 day answer period is sufficient given the 
more limited nature of the complaints filed under the simplified 
procedure. Moreover, a respondent is not required to file relevant 
documents with its answer, thus reducing its burden. Nevertheless, if a 
respondent believes that the answer period is too short, it may request 
an extension of time within which to file an answer pursuant to Rule 
2008.
    Williams asserts that the complaint procedures erroneously provide 
simplified procedures for controversies less than $100,000, regardless 
of the likelihood that such controversies could have significant policy 
impacts. Williams contends that the simplified procedure ignores the 
ultimate impact on both the respondent and the industry, especially 
when policy issues are involved. Williams argues that the value placed 
on a claim by a complainant in one instance might not accurately 
reflect the ultimate impact of the complaint proceeding. For example, a 
controversy that is worth $50,000 to the complainant may be worth 
millions of dollars to the respondent after a precedent is set and 
others avail themselves of that precedent. Further, Williams asserts 
that issues that involve matters of policy, even if the amount in 
controversy is small, must be given full and adequate consideration. 
Williams submits that the complaint procedures should be revised to 
eliminate the discriminatory, special treatment for small controversies 
and provide everyone with the same treatment and procedures.
    The Commission denies the request for rehearing. The simplified 
procedures for complaints are designed to resolve disputes between the 
complainant and the regulated entity involving less complex matters, 
for example, a billing dispute. It was not contemplated that small 
controversy complaints would have any major policy implications. The 
procedures are designed to allow a complainant with limited resources 
to seek relief before the Commission without incurring the time and 
expense associated with a more formal complaint. The effects of a small 
controversy complaints were intended

[[Page 43608]]

to be limited to the complainant and respondent, hence the de minimis 
impact requirement. Nevertheless, if in a respondent's view, the use of 
the simplified procedures is not appropriate, it should provide support 
for such assertion in its answer. In the event the Commission finds 
that a small controversy case has policy implications affecting an 
industry, or resolution of the complaint would require the respondent 
to take action affecting other customers that would have a cumulative 
effect over $100,000, it can remove the case from the simplified 
procedures and use the more formal procedures under Rule 206. Such 
decisions will be made on a case-by-case basis.

III. Effective Date

    The amendments to the Commission's regulations adopted in this 
order on rehearing will become effective September 10, 1999.

List of Subjects in 18 CFR Part 385

    Administrative practice and procedure, Electric power, Penalties, 
Pipelines, Reporting and recordkeeping requirements.

    By the Commission.
David P. Boergers,
Secretary.

    In consideration of the foregoing, the Commission denies rehearing 
in part, grants rehearing in part, and clarifies Order No. 602 as 
described above, and amends Part 385, Chapter I, Title 18, Code of 
Federal Regulations, as set forth below.

PART 385--RULES OF PRACTICE AND PROCEDURE

    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; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49 
U.S.C. 60502; 49 App. U.S.C. 1-85.

    2. In Sec. 385.206, paragraphs (b)(7), (b)(8), (b)(9)(i), (c), 
(e)(3), and (h)(1) are revised, paragraph (g)(2) is removed, paragraphs 
(g)(1) introductory text, (g)(1)(i), (g)(1)(ii) and (g)(1)(iii) are 
redesignated as paragraphs (g) introductory text, (g)(1), (g)(2) and 
(g)(3), respectively, and newly redesignated paragraph (g)(1) is 
revised to read as follows:


Sec. 385.206  Complaints (Rule 206).

* * * * *
    (b) * * *
    (7) State the specific relief or remedy requested, including any 
request for stay or extension of time, and the basis for that relief;
    (8) Include all documents that support the facts in the complaint 
in possession of, or otherwise attainable by, the complainant, 
including, but not limited to, contracts and affidavits;
    (9) * * *
    (i) Whether the Enforcement Hotline, Dispute Resolution Service, 
tariff-based dispute resolution mechanisms, or other informal dispute 
resolution procedures were used, or why these procedures were not used;
* * * * *
    (c) Service. Any person filing a complaint must serve a copy of the 
complaint on the respondent, affected regulatory agencies, and others 
the complainant reasonably knows may be expected to be affected by the 
complaint. Service must be simultaneous with filing at the Commission 
for respondents. Simultaneous or overnight service is permissible for 
other affected entities. Simultaneous service can be accomplished by 
electronic mail in accordance with Sec. 385.2010(f)(3), facsimile, 
express delivery, or messenger.
* * * * *
    (e) * * *
    (3) The respondent and any interested person who has filed a motion 
to intervene in the complaint proceeding may make a written request to 
the complainant for a copy of the complete complaint. The request must 
include an executed copy of the protective agreement and, for persons 
other than the respondent, a copy of the motion to intervene. Any 
person may file an objection to the proposed form of protective 
agreement.
* * * * *
    (g) * * *
    (1) The Commission may assign a case to be resolved through 
alternative dispute resolution procedures in accordance with 
Secs. 385.604-385.606, in cases where the affected parties consent, or 
the Commission may order the appointment of a settlement judge in 
accordance with Sec. 385.603;
* * * * *
    (h) Fast Track Processing. (1) The Commission may resolve 
complaints using Fast Track procedures if the complaint requires 
expeditious resolution. Fast Track procedures may include expedited 
action on the pleadings by the Commission, expedited hearing before an 
ALJ, or expedited action on requests for stay, extension of time, or 
other relief by the Commission or an ALJ.
* * * * *
    3. In Sec. 385.213, paragraphs (c)(4), (c)(5)(ii), (c)(5)(iii) and 
(d)(2) introductory text are revised to read as follows:


Sec. 385.213  Answer (Rule 213).

* * * * *
    (c) * * *
    (4) An answer to a complaint must include documents that support 
the facts in the answer in possession of, or otherwise attainable by, 
the respondent, including, but not limited to, contracts and 
affidavits. An answer is also required to describe the formal or 
consensual process it proposes for resolving the complaint.
    (5) * * *
    (ii) A respondent must provide a copy of its answer without the 
privileged information and its proposed form of protective agreement to 
each entity that has either been served pursuant to Sec. 385.206 (c) or 
whose name is on the official service list for the proceeding compiled 
by the Secretary.
    (iii) The complainant and any interested person who has filed a 
motion to intervene may make a written request to the respondent for a 
copy of the complete answer. The request must include an executed copy 
of the protective agreement and, for persons other than the 
complainant, a copy of the motion to intervene. Any person may file an 
objection to the proposed form of protective agreement.
* * * * *
    (d) * * *
    (2) Any answer to a pleading or amendment to a pleading, other than 
a complaint or an answer to a motion under paragraph (d)(1) of this 
section, must be made:
* * * * *
[FR Doc. 99-19885 Filed 8-10-99; 8:45 am]
BILLING CODE 6717-01-P