[Federal Register Volume 70, Number 184 (Friday, September 23, 2005)]
[Rules and Regulations]
[Pages 55723-55725]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19004]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 385

[Docket No. RM05-33-000; Order No. 663]


Revision of Rules of Practice and Procedure Regarding Issue 
Identification

Issued September 16, 2005.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
revising its regulations regarding filings. The regulations are revised 
to clarify that any issues that the movant wishes the Commission to 
address must be specifically identified in a section entitled 
``Statement of Issues.'' This change will benefit the Commission by 
clarifying issues raised, and benefit movants by ensuring issues are 
addressed promptly and preserved for appeal.

EFFECTIVE DATE: The rule will become effective September 23, 2005.

FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the 
General Counsel, GC-13, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426, 202-502-8521.

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead Brownell, 
and Suedeen G. Kelly.

    1. The Federal Energy Regulatory Commission (Commission) is 
revising its rules of practice and procedure to clarify that any issues 
a movant wishes the Commission to address must be clearly set forth in 
a section entitled ``Statement of Issues,'' that will reference 
representative Commission and court precedent on which the participant 
is relying. While the current rules require that pleadings include 
``[t]he position taken by the participant filing any pleading * * * and 
the basis in fact and law for such position,'' the Commission has found 
that movants sometimes fail to specify the issues they want the 
Commission to address, or the case law supporting their position. 18 
CFR 385.203(a)(7). This revision will benefit movants, and other 
parties to the proceeding, as well as the Commission.
    2. The way to ensure that an issue is addressed is for a movant to 
place it squarely before the Commission in a filing. Under the 
Administrative

[[Page 55724]]

Procedures Act (APA), 5 U.S.C. 554(b)(3), ``[w]hen private persons are 
the moving parties, other parties to the proceeding shall give prompt 
notice of issues controverted in fact or law * * *.'' These amendments 
are consistent with that provision of the APA in that they require that 
a movant identify with specificity those issues he is raising with the 
Commission, and provide the applicable legal authority supporting his 
position.
    3. This rule will benefit all participants. Other parties will know 
with certainty which issues to address in any responsive pleadings. The 
Commission will know with certainty the issues being raised and the 
legal support cited as supporting that issue, enabling the Commission 
to respond promptly and thoroughly to such issues. Finally, movants 
will benefit by placing the issue squarely before the Commission for 
resolution.
    4. There have been numerous instances where appeals have been 
denied because an appellant failed to clearly raise an issue before the 
Commission on rehearing. See, e.g., California Dep't of Water Resources 
v. FERC, 341 F.3d 906, 911(9th Cir. 2003) (issue not preserved for 
review where petitioner ``raised the issue in a single sentence at the 
end of an unrelated section of its request for rehearing, without 
citing the statutory language it now urges [the court of appeals] to 
consider.''); Intermountain Municipal Gas Agency v. FERC, 326 F.3d 
1282, 1285 (D.C. Cir. 2003); Coalition for the Fair and Equitable 
Regulation of Docks on the Lake of the Ozarks v. FERC, 297 F.3d 771, 
777 (8th Cir. 2002) (declining to find jurisdiction where petitioner's 
``brief does not show that it raised the * * * arguments in any 
recognizable form''). Both the Natural Gas Act and the Federal Power 
Act require that issues be presented with specificity to the Commission 
on rehearing prior to any court appeal. 15 U.S.C. 717r(b) (``No 
objection to the order of the Commission shall be considered by the 
court unless such objection shall have been urged before the Commission 
in the application for rehearing unless there is reasonable ground for 
failure to do so.''); 16 U.S.C. 825l(a) (``The application for 
rehearing shall set forth specifically the ground or grounds upon which 
such application is based * * *. No proceeding to review any orders of 
the Commission shall be brought by any person unless such person shall 
have made application to the Commission for a rehearing thereon.''). 
This is a threshold issue; courts have found no jurisdiction to address 
issues that were not sufficiently raised in a request for rehearing. 
See, e.g., Intermountain v. FERC, 326 F.2d at 1285 (concluding the 
court lacked jurisdiction to address an issue because ``so general and 
vague statement'' does not satisfy the requirement in the Natural Gas 
Act that objections be ``specifically urged.'') (citations omitted).
    5. The general rules regarding content of pleadings are found in 
Rule 203, Content of pleadings and tariff or rate filings. 18 CFR 
385.203. Rule 202 defines pleadings to include ``any application, 
complaint, petition, protest, notice of protest, answer, motion, and 
any amendment or withdrawal of a pleading.'' 18 CFR 385.202.\1\ To 
date, Sec.  385.203(a)(7) has required that each pleading include, as 
appropriate, ``[t]he position taken by the participant filing any 
pleading, to the extent known when the pleading is filed, and the basis 
in fact and law for such position.'' The Commission is revising this 
provision to specify that the issues be set forth in a separate titled 
section. Revised Sec.  385.203(a)(7) requires that pleadings include: 
``[t]he position taken by the participant filing any pleading, to the 
extent known when the pleading is filed, and the basis in fact and law 
for such position, including a separate section entitled ``Statement of 
Issues,'' listing each issue presented to the Commission in a 
separately enumerated paragraph that includes representative Commission 
and court precedent on which the participant is relying.''
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    \1\ Rule 202 specifically excludes comments on rulemakings or 
comments on offers of settlement from the definition of pleading.
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    6. This final rule also adds language to Rule 713 to clarify that a 
``Statement of Issues'' section is also required in requests for 
rehearing as well as pleadings. Existing Rule 713 states that requests 
for rehearing ``must * * * [c]onform to the requirements in Rule 203(a) 
which are applicable to pleadings.'' 18 CFR 713(c)(2). Therefore, the 
amended language in revised Rule 203 already applies to rehearings; 
however, the requirement for a section entitled ``Statement of Issues'' 
is important enough that it warrants repeating in the rule on requests 
for rehearing. Revised 18 CFR 385.713(c)(2) is, therefore, revised to 
clarify that requests for rehearing must ``conform to the requirements 
in Rule 203(a), which are applicable to pleadings, including, but not 
limited to, the requirement for a separate section entitled ``Statement 
of Issues,'' listing each issue in a separately enumerated paragraph 
that includes representative Commission and court precedent on which 
the party is relying.''
    7. If a movant fails to list issues in a separate section entitled 
``Statement of Issues,'' such issues will be deemed to have been 
waived. This is consistent with existing Rule 2001, which states that 
filings that fail to meet applicable statutes, rules or orders may be 
rejected in full or all or part of the filing may be stricken. 18 CFR 
385.2001(b). Sections 385.203 and 385.713 are both revised to specify 
that issues that are not presented in separate paragraphs in the 
``Statement of Issues'' section will be deemed waived.
    8. The changes that are made in this rule are essentially 
formatting changes. The existing regulations already require issue 
identification and the basis in fact and law for positions asserted; 
this order simply requires that the issues and legal support for the 
position taken be set forth in a section entitled ``Statement of 
Issues,'' thus making it easier for staff and others to know with 
certainty the issues and legal arguments being raised.

Information Collection Statement

    9. The Office of Management and Budget's (OMB's) regulations 
require that OMB approve certain information collection requirements 
imposed by agency rule. 5 CFR 1320.12 (2005). This final rule contains 
no additional information reporting requirements, and is not subject to 
OMB approval.

Environmental Analysis

    10. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\2\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment. Included in the exclusion are rules that are clarifying, 
corrective, or procedural that do not substantially change the effect 
of the regulations being amended. This proposed rule is procedural in 
nature and, therefore, falls under this exception; consequently, no 
environmental consideration is necessary.
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    \2\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs. Preambles 1986-1990 ] 30,783 (1987).
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Regulatory Flexibility Act Certification

    11. The Regulatory Flexibility Act of 1980 (RFA) \3\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Commission is not

[[Page 55725]]

required to make such analysis if a rule would not have such an effect. 
The Commission certifies that this rule will not have such an impact on 
small entities as it merely clarifies existing requirements. An 
analysis under the RFA therefore, is not required.
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    \3\ 5 U.S.C. 601-612.
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Document Availability

    12. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426.
    13. From FERC's Home Page on the Internet, this information is 
available in the Commission's document management system, eLibrary. The 
full text of this document is available on eLibrary in PDF and 
Microsoft Word format for viewing, printing, and/or downloading. To 
access this document in eLibrary, type the docket number excluding the 
last three digits of this document in the docket number field.
    14. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours. For assistance, please contact the 
Commission's Online Support at 1-866-208-3676 (toll free) or TTY (202) 
502-8659, or e-mail at [email protected]. You may also contact 
the Public Reference Room at (202) 502-8371 or e-mail at 
[email protected].

Effective Date

    15. These regulations are effective immediately upon publication in 
the Federal Register. In accordance with 5 U.S.C. 553(d)(3), the 
Commission finds that good cause exists to make this Final Rule 
effective immediately upon publication. It concerns only a matter of 
procedure affecting formatting of filings.
    16. The provisions of 5 U.S.C. 801 regarding Congressional review 
of Final Rules does not apply to this Final Rule, because the rule 
concerns agency procedure and practice and will not substantially 
affect the rights of non-agency parties.
    17. The Commission is issuing this as a final rule without a period 
for public comment. Under 5 U.S.C. 553(b), notice and comment 
procedures are unnecessary where a rulemaking concerns only agency 
procedure and practice, or where the agency finds that notice and 
comment is unnecessary. This rule concerns only a clarification of a 
matter of agency procedure and will not significantly affect regulated 
entities or the general public.

List of Subjects in 18 CFR Part 385

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

    By the Commission.
Magalie R. Salas,
Secretary.

0
In consideration of the foregoing, the Commission amends part 385, 
chapter I, title 18, Code of Federal Regulations, as follows.

PART 385--RULES OF PRACTICE AND PROCEDURE

0
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; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 
42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1085 (1988).


0
2. Section 385.203 is amended by revising paragraph (a)(7) to read as 
follows:


Sec.  385.203  Content of pleadings and tariff or rate filings (Rule 
203).

    (a) * * *
    (7) The position taken by the participant filing any pleading, to 
the extent known when the pleading is filed, and the basis in fact and 
law for such position, including a separate section entitled 
``Statement of Issues,'' listing each issue presented to the Commission 
in a separately enumerated paragraph that includes representative 
Commission and court precedent on which the participant is relying; any 
issue not so listed will be deemed waived;
* * * * *

0
3. Section 385.713 is amended by revising paragraph (c)(2) to read as 
follows:


Sec.  385.713  Request for rehearing (Rule 713).

* * * * *
    (c) * * *
    (2) Conform to the requirements in Rule 203(a), which are 
applicable to pleadings, including, but not limited to, the requirement 
for a separate section entitled ``Statement of Issues,'' listing each 
issue in a separately enumerated paragraph that includes representative 
Commission and court precedent on which the party is relying; any issue 
not so listed will be deemed waived; and
* * * * *
[FR Doc. 05-19004 Filed 9-22-05; 8:45 am]
BILLING CODE 6717-01-P