[Federal Register Volume 73, Number 99 (Wednesday, May 21, 2008)]
[Rules and Regulations]
[Pages 29431-29433]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11315]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 1b
[Docket No. RM08-10-000; Order No. 711]
Submissions to the Commission Upon Staff Intention to Seek an
Order To Show Cause
Issued May 15, 2008.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
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SUMMARY: The Commission is amending its regulations to expand and
clarify the right of an entity to submit a written response to the
Commission in the event staff intends to recommend that the Commission
initiate a proceeding governed by 18 CFR Part 385, or make the entity a
defendant in a civil action to be brought by the Commission. Subjects
of investigations currently have the right under 18 CFR 1b.19 to be
informed in the latter instance, but only in the event staff finds it
appropriate and in the public interest. The amendment would grant that
right, for both types of proceedings, in all cases except those in
which extraordinary circumstances make prompt Commission review
necessary to prevent detriment to the public interest or irreparable
harm. The amendment also clarifies the timing requirements for such
submissions. These changes codify current staff practice regarding
recommendations for orders to show cause, and will allow subjects of
investigations a fuller opportunity to present their positions to the
Commission.
DATES: Effective Date: The rule will become effective immediately upon
publication in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Kathryn Kuhlen, Office of Enforcement,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502-6855.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G.
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.
Final Rule
Issued May 15, 2008.
I. Background
1. The procedural rule set forth in 18 CFR 1b.19 (2007) governs the
procedures to be followed regarding submissions to the Commission in
the event Commission staff recommends that the subject of an
investigation be made a defendant in a civil action to be brought by
the Commission. Before enactment of the Energy Policy Act of 2005,\1\
this provision rarely came into play, as most investigations have been
resolved either through closure without further action or by
settlement. Indeed, at a recent technical conference on enforcement
held by the Commission,\2\ it appeared that many energy practitioners
were unaware of the submission process set forth in this regulation,
and expressed a desire for more clarity regarding the due process
rights of the subjects of staff investigations.
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\1\ Energy Policy Act of 2005, Public Law No. 109-58, 119 Stat.
594 (2005) (EPAct 2005).
\2\ Conference on Enforcement Policy, Docket No. AD07-13-000,
Nov. 16, 2007.
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2. In light of the comments at the technical conference and the
need to ensure due process in our investigations, the Commission has
reexamined 18 CFR 1b.19 and determined to clarify its provisions and
expand the procedural rights it provides.
3. The current language in the regulation provides that staff need
only advise the subject of an investigation of staff's intent to seek
an order to show cause in the event staff determines that it is
appropriate in the interest of the proper administration of the law to
do so. However, it is staff's practice to advise the subject of an
investigation of such intent in all cases, except where exigent
circumstances, such as the danger of irreparable harm, require prompt
Commission action. Therefore, we believe it appropriate to codify the
current practice and provide subjects the right to be informed of
staff's intent, with the concomitant ability to present a response to
be provided to the Commission for its consideration along with staff's
recommendation.
II. Commission Determination
4. This Final Rule amends 18 CFR 1b.19 to provide that in the event
Commission staff intends to recommend to the Commission that it
initiate a proceeding under 18 CFR Part 385 against the subject of an
investigation being conducted under the provisions of 18 CFR Part 1b,
or to recommend that
[[Page 29432]]
the Commission make the subject of an investigation a defendant in a
civil action to be brought by the Commission, the subject of that
investigation shall have the right, in all but extraordinary
circumstances, to be so informed and to have the opportunity to provide
the Commission with a written non-public response to staff's
recommendation. The Final Rule also provides that staff's notification
to the subject of its right to make a response shall provide sufficient
information and facts to enable the subject to make such a response,
and further provides that within 30 days of such notice, the subject
may submit its response to staff, which response staff will submit to
the Commission together with its own recommendation.
5. Section 1b.19 currently provides that staff may inform the
subject of an investigation \3\ of staff's intent to recommend that the
subject be made a defendant in a civil proceeding to be brought by the
Commission only when staff determines it is appropriate in the interest
of the proper administration of the law. However, as noted above, it is
staff's practice to notify the subject of an investigation when it
determines to seek an order to show cause in all situations except
where exigent circumstances make immediate consideration by the
Commission necessary. The current regulation also does not specify the
time period by which the subject is to provide its response, providing
instead that staff shall inform the subject of the due date. The
amended regulation codifies staff's current practice regarding
notification and will provide subjects of an investigation with a
fuller opportunity to present their positions to the Commission.
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\3\ The current regulation refers to the subject as a
``person.'' The amended regulation refers to the subject with the
broader term ``entity,'' consistent with the meaning of that term as
used in 18 CFR Part 1c.
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III. Information Collection Statement
6. The Office of Management and Budget's (OMB) regulations require
that OMB approve certain information collection requirements imposed by
agency rule.\4\ This Final Rule contains no information reporting
requirements, and the filings permitted under the regulation are
collected during the course of an investigation and, as such, are
exempt from the provisions of the Paperwork Reduction Act.\5\
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\4\ 5 CFR Part 1320.
\5\ 44 U.S.C. 3518(c); 5 CFR 1320.4.
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IV. Environmental Analysis
7. 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.\6\ Issuance
of this Final Rule does not represent a major federal action having a
significant adverse effect on the human environment under the
Commission's regulations implementing the National Environmental Policy
Act.\7\ Part 380 of the Commission's regulations lists exemptions to
the requirement that an Environmental Analysis or Environmental Impact
Statement be done. Included is an exemption for procedural, ministerial
or internal administrative actions.\8\ This rulemaking is exempt under
that provision.
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\6\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
\7\ Order No. 486, 52 FR 47897 (Dec. 17, 1987); FERC Stats. &
Regs., Regulations Preambles 1986-1990 ] 30,783 (Dec. 10, 1984)
(codified at 18 CFR Part 380).
\8\ 18 CFR 380.4(1) and (5).
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V. Regulatory Flexibility Act Certification
8. The Regulatory Flexibility Act of 1980 \9\ generally requires a
description and analysis of final rules that will have significant
economic impact on a substantial number of small entities. This final
rule concerns a matter of internal agency procedure and the Commission
therefore certifies that it will not have such an impact. An analysis
under the RFA is not required.
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\9\ 5 U.S.C. 601-612 (RFA).
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VI. Document Availability
9. 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.
10. From FERC's Home Page on the Internet, this information is
available on 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.
11. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from FERC Online Support at 202-502-
6652 (toll free at 1-866-208-3676) or e-mail at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. E-mail the Public Reference Room at
[email protected].
VII. Effective Date
12. 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. It concerns a matter of administrative
procedures and expands rather than diminishes the rights of persons
appearing before the Commission. There is therefore no reason to make
it effective at a later time.
13. The provisions of 5 U.S.C. 801 regarding Congressional review
of Final Rules do 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, other than to expand the
ability of subjects of an investigation to present their views to the
Commission before deliberations by the Commission on whether to
initiate a proceeding governed by 18 CFR Part 385 against them.
14. 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 matters of agency
procedure and will not significantly affect regulated entities or the
general public, other than to expand the rights of subjects of an
investigation to make certain submissions to the Commission.
List of Subjects in 18 CFR Part 1b
Rules relating to Investigations.
By the Commission.
Kimberly D. Bose,
Secretary.
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In consideration of the foregoing, the Commission amends Section 1b.19,
Part 1b, Chapter I, Title 18, Code of Federal Regulations, as follows:
PART 1b--RULES RELATING TO INVESTIGATIONS
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1. The authority citation for Part 1b continues to read as follows:
Authority: 15 U.S.C. 717 et seq.; 16 U.S.C. 792 et seq.; 49
U.S.C. 60502; 49 A.P.U.S.C. 1-85; 42 U.S.C. 7101-7352; E.O. 12009,
42 FR 46297.
[[Page 29433]]
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2. Section 1b.19 is revised to read as follows:
Sec. 1b.19 Submissions.
In the event the Investigating Officer determines to recommend to
the Commission that an entity be made the subject of a proceeding
governed by part 385 of this chapter, or that an entity be made a
defendant in a civil action to be brought by the Commission, the
Investigating Officer shall, unless extraordinary circumstances make
prompt Commission review necessary in order to prevent detriment to the
public interest or irreparable harm, notify the entity that the
Investigating Officer intends to make such a recommendation. Such
notice shall provide sufficient information and facts to enable the
entity to provide a response. Within 30 days of such notice, the entity
may submit to the Investigating Officer a non-public response, which
may consist of a statement of fact, argument, and/or memorandum of law,
with such supporting documentation as the entity chooses, showing why a
proceeding governed by part 385 of this chapter should not be
instituted against said entity, or why said entity should not be made a
defendant in a civil action brought by the Commission. If the response
is submitted by the due date, the Investigating Officer shall present
it to the Commission together with the Investigating Officer's
recommendation. The Commission will consider both the Investigating
Officer's recommendation and the entity's timely response in deciding
whether to take further action.
[FR Doc. E8-11315 Filed 5-20-08; 8:45 am]
BILLING CODE 6717-01-P