[Federal Register Volume 68, Number 148 (Friday, August 1, 2003)]
[Notices]
[Page 45237]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19609]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. EL01-118-000 and EL01-118-001]


Investigation of Terms and Conditions of Public Utility Market-
Based Rate Authorizations; Order Addressing Application of Ex Parte 
Rule and Requests for Extension of Time

Issued: July 25, 2003.
    Before Commissioners: Pat Wood, III, Chairman; William L. Massey, 
and Nora Mead Brownell. 104 FERC ] 61,132.
    1. This order addresses requests related to the Commission's 
earlier order in these dockets, issued June 26, 2003, under Section 206 
of the Federal Power Act,\1\ requesting comments on a proposal to 
condition all new and existing market-based rate tariffs and 
authorizations to include a provision prohibiting the seller from 
engaging in anticompetitive behavior or the exercise of market power. 
Order Seeking Comments on Proposed Revisions to Market-Based Rate 
Tariffs and Authorizations, 103 FERC ] 61,349 (2003). The Commission 
has received two requests that it find that its ex parte rule \2\ does 
not apply, from the Electric Power Supply Association (EPSA) and 
jointly from the Edison Electric Institute and the Alliance of Energy 
Suppliers (EEI/AES). EEI/AES also requests an extension of the time for 
comments and the scheduling of a technical conference.
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    \1\ 16 U.S.C. 824e (2000).
    \2\ 18 CFR 385.2201 (2003) (Rule 2201).
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Background

    2. The Commission issued its June 26 order as part of the electric 
dockets indicated in the caption above. The order proposed market 
behavior rules that would apply to all market-based tariffs and rate 
authorizations. 103 FERC ] 61,349, ] 16. The Commission solicited 
comments from all interested entities. Id., ] 52.
    3. On the same date, the Commission issued a proposal to amend the 
blanket certificates for unbundled gas sales services by interstate 
natural gas pipelines and the blanket marketing certificates held by 
persons making sales for resale of gas at negotiated rates. This 
proposal was similar in intent to the electric proposal issued in this 
proceeding: the Commission proposed to require that pipelines and all 
sellers for resale adhere to a code of conduct with respect to gas 
sales. The gas proposals was issued in a new docket, which was 
designated as a rulemaking docket, No. RM03-10-000. Amendments to 
Blanket Sales Certificates, 103 FERC ] 61,350 (2003). Like the June 26 
electric order, the gas order sought comment from interested persons. 
Id., ] 31.

Discussion

    4. EPSA and EEI/ESA both request that the Commission treat this 
proceeding as a rulemaking, thus making its ex parte rule inapplicable. 
See 385.2201(c)(1)(ii) (ex parte rules do not apply to notice-and-
comment rulemakings). EEI/ESA note that the electric proposal is 
generic in nature, and state that treatment as a rulemaking will better 
facilitate open discussion between the Commission and interested 
parties. EEI/ESA Motion at p.3. EPSA points out that the only effective 
difference between the electric and gas proposals, for purposes of the 
comment procedures, is the differing docket designations. EPSA states 
that, because the Commission in this proceeding is contemplating 
measures that would apply generally, and not just to specific parties 
in a contested proceeding, the purposes of the ex parte rules would not 
be served by their application here. EPSA Motion at pp. 2-4.
    5. The Commission concludes that the approach adopted in the June 
26 order is the functional equivalent of a rulemaking with respect to 
the applicability of Rule 2201. The order seeks comments and reply 
comments from interested entities, and does not limit participation to 
parties. To that end, the order was published in the Federal Register, 
as is the case with notice-and-comment rulemakings. More to the point, 
the Commission is not conducting an adjudication between parties, and 
intends the outcome here to have generic effect. See 103 FERC ] 61,349, 
] 6, note 5.\3\ Therefore, for the reasons that the Commission found 
appropriate when it excluded rulemakings from the coverage of the 
prohibitions on off-the-record proceedings, the Commission believes 
that this proceeding should also be excluded from the coverage of Rule 
2201.\4\ In particular, the Commission believes that robust debate in 
what is essentially a legislative proceeding will be enhanced by 
removing the restrictions of the ex parte rule.
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    \3\ The Commission still does not intend, however, to amend 
Title 18 of the Code of Federal Regulations. The approach proposed 
in the June 26 order focuses on changes to the sellers' tariffs, and 
does not include regulatory changes.
    \4\ See Order No. 607, 88 FERC ] 61,225 (1999), at pp. 15-16.
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    6. EEI/ESA made two further requests. They asked that the 
Commission extend the deadlines for comments by 60 days. Currently, 
initial comments are due on August 8, 2003, and reply comments on 
September 8. EEI/ESA state that an extension will allow interested 
parties sufficient time to prepare detailed and constructive comments. 
EEI/ESA Motion at pp. 2-3. EEI/ESA also ask that the Commission 
schedule a technical conference. Id. at p. 4.
    7. The Commission does not believe that the requested extension is 
warranted and does not wish to delay proceedings significantly. 
However, it will grant a limited extension as follows. Comments will be 
due on August 18, 2003. Reply comments will be due on September 18, 
2003.
    The Commission orders:
    (A) The requests to treat this proceeding as a rulemaking for the 
purposes of the applicability of Rule 2201, are granted;
    (B) The motions for extension are granted as discussed;
    (C) The Commission will determine at a later time whether to 
convene a technical conference;
    (D) The Secretary shall promptly publish this Order in the Federal 
Register.

    By the Commission.
Linda Mitry,
Acting Secretary.
[FR Doc. 03-19609 Filed 7-31-03; 8:45 am]
BILLING CODE 6717-01-P