[Federal Register Volume 64, Number 192 (Tuesday, October 5, 1999)]
[Proposed Rules]
[Pages 53959-53960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25797]
[[Page 53959]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 385
[Docket No. RM98-13-002; Order No. 602-B]
Complaint Procedures
Issued September 29, 1999.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Order on rehearing.
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SUMMARY: On July 28, 1999, the Commission issued Order No. 602-A, an
order on rehearing and clarification of its final rule revising the
Commission's complaint procedures (Order No. 602). On August 27, 1999,
a request for rehearing of Order No. 602-A was filed. The petitioners
are concerned that removal of references to ``preliminary'' and
``interim'' relief would somehow preclude a complainant from seeking
what it characterizes as ``immediate'' or ``early'' Commission action.
The order denies rehearing but clarifies that under the complaint
regulations a potential complainant may request ``immediate'' action on
the merits of its claims and that any complaint in which time is of the
essence could be filed under the Fast Track procedure in
Sec. 385.206(h).
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, NE, Room 2A, Washington, DC 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 8.0. 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 Home Page 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, NE, Washington, DC 20426.
On July 28, 1999, the Commission issued Order No. 602-
A,1 an order on rehearing and clarification of its final
rule revising the Commission's complaint procedures (Order No.
602).2 A request for rehearing has been filed urging the
Commission to add the phrase ``immediate remedial action'' to the
regulations to replace the references to preliminary relief that were
deleted by Order No. 602-A.
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\1\ 64 FR 43600 (August 11, 1999), FERC Stats. & Regs. para.
31,076 (1999).
\2\ 64 FR 17087 (April 8, 1999), FERC Stats. & Regs. para.
31,071 (1999).
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Order No. 602 revised the Commission's regulations governing
complaints filed 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. Among other things, Order No. 602 provided that a complaint
could include a request for preliminary relief pending a final merits
decision on the complaint itself. The order stated that the standard
for granting affirmative preliminary relief would be that employed by
the courts for such relief: (1) likelihood of success on the merits;
(2) whether irreparable injury to the complainant will occur if the
relief is not granted; (3) whether the injury outweighs harm to the
respondent or other parties if the relief is granted; and (4) other
public interest considerations.3
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\3\ Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925
(D.C. Cir. 1958).
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In Order No. 602-A, responding to rehearing requests, the
Commission eliminated the preliminary relief procedure and clarified
what types of relief the Commission may provide under the complaint
rule. The Commission made it clear that it would act only where it has
authority under the various statutes administered by the Commission.
The Commission acknowledged that use of certain terminology in the
final rule may have led to confusion and concern on the part of many
parties. The Commission eliminated all references to preliminary relief
other than stays or extensions of time in the complaint regulations. In
addition, the standards in Sec. 385.206 (b)(7)(i) through (iv), which
were based on Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921
(D.C. Cir. 1958), were deleted. These changes were designed to
eliminate certain parties' concern that the Commission was attempting
to establish procedures for granting relief akin to preliminary
injunctions under standards different than those specified in the
statutes administered by the Commission.
The Commission stated that there may be cases in which it could
issue what could be categorized as an ``interim'' or ``preliminary''
order in a complaint proceeding pursuant to existing authorities. For
example, the Commission stated that 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. 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. The Commission
stated that 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. The Commission stated that this type of relief may be
appropriate in certain limited circumstances and is within the
Commission's authority to grant. Further, the Commission stated that it
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.
Finally, the Commission stated that a complainant may request forms of
relief which it believes is within the Commission's authority to grant
and the Commission will decide whether the relief may be granted on a
case-by-case basis.
On August 27, 1999, a request for rehearing of Order No. 602-A was
filed by Undersigned Parties (hereinafter
[[Page 53960]]
referred to as the Petitioners).4 The Petitioners assert
that a complainant's right to some form of prompt or immediate
Commission remedy is essential in a complaint procedure responsive to
the needs of the restructured gas and electric power industries. The
Petitioners submit that some form of Commission remedial action as soon
as possible after the filing of a formal complaint must be available.
The Petitioners contend that to suggest that such remedies might be
within the Commission's authority to grant while removing from the
Commission's new and comprehensive complaint regulations any reference
to such remedies, creates ambiguity about whether the Commission truly
intends to make early remedial action a component of its revised
complaint procedure. The Petitioners argue that where, as here, the
Commission is adopting a comprehensive new complaint procedure, it
should include therein some codification of each element of its new
complaint policy.
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\4\ The Undersigned Parties consist of the Pipeline Customer
Coalition, American Public Power Association, Transmission Access
Policy Study Group, National Rural Electric Cooperative Association,
Pennsylvania Office of Consumer Advocate, and Transmission Dependent
Utility Systems.
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The Commission finds it unnecessary to modify the regulations as
requested because they already encompass the kind of relief sought. In
the Commission's view, there is a difference between preliminary and
interim relief on the one hand, and what the Petitioners refer to as
``immediate'' or ``early'' Commission action on complaints on the other
hand. References to preliminary and interim relief, as well as the use
of the Virginia Jobbers standards, led many parties to believe that the
Commission would be granting relief akin to temporary restraining
orders or preliminary injunctions, and that such relief would be based
on standards other than those contained in the applicable statutes.
Order No. 602-A eliminated such references to make clear that the
Commission would not and could not exercise any authority beyond its
statutory authority.
The elimination of the references to preliminary and interim relief
does not mean that the Commission lacks the authority to address
complaints quickly. The Petitioners have recognized that the Commission
may issue an interim order, which resolves some issues while leaving
others to be determined at a later time, that is based on findings made
pursuant to the standards contained in NGA section 5 or FPA section
206. Moreover, as recognized in Order No. 602-A, the Commission could
also take such interim actions as granting a stay, granting an
extension of time, issuing stop work orders or others orders
contemplated by certificate or hydroelectric license conditions, or
issuing show cause orders. Other actions, such as issuing show cause or
declaratory orders, while not final action, also convey a message to
the parties that in the Commission's view a complainant has presented a
solid case for the relief sought that will be granted in the absence of
convincing evidence to the contrary.
The Commission recognizes that timely redress of a complaint is
essential in today's constantly evolving energy markets. In Order No.
602, the Commission introduced the Fast Track procedures precisely for
this reason. Because the Commission realizes that time is of the
essence in many complaint proceedings, it committed to issuing merits
order on Fast Track complaints within 20 days after the answer is
filed.5 The Commission also stated that if the development
of a factual record was necessary to the resolution of a complaint,
hearing procedures could be compressed into a few days.
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\5\ See, for example, North American Energy Conservation, Inc.
v. CNG Transmission Corporation, 88 FERC para. 61255 (1999), where
the answer to the complaint was filed on September 3, 1999, and the
order on the merits of the complaint was issued September 17, 1999.
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The Petitioners request for rehearing essentially deals with the
timing of Commission action, hence their use of the words ``prompt,''
``immediate'' and ``early.'' In the Commission's view, the
Petitioners'' concerns can be adequately addressed under the
regulations adopted because any complaint in which time is of the
essence can be filed under the Fast Track procedure in Sec. 385.206(h).
A party filing such a complaint can show that the standard complaint
resolution process may not provide timely relief as quickly as
circumstances may demand and that expedited resolution under the Fast
Track is thus appropriate. In resolving the merits of a complaint,
whether under the Fast Track or standard procedures, the Commission
must apply the standards contained in the statutes it administers. The
Commission thus can reach a final resolution under its governing
statutes through standard procedures or using expedited processing.
The modifications contained in Order No. 602-A were not meant to
suggest that complaints could only be resolved through a lengthy
administrative hearing. As Sec. 385.206(h)(1) states, ``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.'' The revised complaint regulations do not prevent a
potential complainant from requesting ``immediate'' action on the
merits of its claims, but rather, are specifically designed to address
particular situations that demand the immediate resolution requested by
the Petitioners. The Petitioners' concerns thus already have been taken
into account and incorporated into the regulations to provide for the
prompt and immediate resolution they seek.
List of Subjects in 18 CFR Part 385
Administrative practice and procedure, Electric power, Penalties,
Pipelines, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Commission denies rehearing.
By the Commission.
David P. Boergers,
Secretary.
[FR Doc. 99-25797 Filed 10-4-99; 8:45 am]
BILLING CODE 6717-01-P