[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Rules and Regulations]
[Pages 41037-41039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19471]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 385

[Docket No. RM09-20-000; Order No. 725]


Service of Interlocutory Appeals

Issued August 10, 2009.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

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SUMMARY: The Commission is amending regulations which specify on whom 
persons appealing a presiding officer's denial of a motion to permit an 
interlocutory appeal must serve copies of the appeal. The amendment 
requires that any person filing an appeal must separately serve a copy 
on not only the Motions Commissioner but also on the General Counsel.

DATES: Effective Date: This rule will become effective September 14, 
2009.

FOR FURTHER INFORMATION CONTACT: 

Lawrence Greenfield, Deputy Associate General Counsel, Office of the 
General Counsel, 888 First Street, NE., Washington, DC 20426, (202) 
502-6415, [email protected].
Kirsten M. Bowden, Office of the General Counsel, 888 First Street, 
NE., Washington, DC 20426, (202) 502-8877, [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

 
                                                               Paragraph
                                                                 Nos.
 
I. Introduction.............................................           1
II. Background..............................................           2
III. Discussion.............................................           5
IV. Information Collection Statement........................           9
V. Environmental Analysis...................................          10
VI. Regulatory Flexibility Act..............................          11
VII. Document Availability..................................          12
VIII. Effective Date........................................          15
 

I. Introduction

    1. By this instant final rule, the Commission is amending Rule 
715(c)(1) of its Rules of Practice and Procedure, 18 CFR 385.715(c)(1), 
which governs the appeal process when a presiding officer has denied a 
motion to permit an interlocutory appeal. This amendment specifies on 
whom persons appealing a presiding officer's denial of a motion to 
permit an interlocutory appeal must serve copies of the appeal. Given 
that the Motions Commissioner has only seven days to act on an 
interlocutory appeal, it is important that the Motions Commissioner be 
made aware of the appeal as quickly as possible. Accordingly, the 
amendment adopted here requires that any person filing an appeal must 
serve a copy not only on the Motions Commissioner but also on the 
General Counsel.

[[Page 41038]]

II. Background

    2. On April 28, 1982, the Commission promulgated Order No. 225,\1\ 
reorganizing revising, and updating its Rules of Practice and 
Procedure.
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    \1\ Revision of Rules of Practice and Procedure To Expedite 
Trial-Type Hearings, Order No. 225, 47 FR 19014 (May 3, 1982), FERC 
Stats. & Regs. ] 30,358 (1982), order on reh'g, Order No. 225-A, 47 
FR 35952 (August 18, 1982), FERC Stats. & Regs. ] 30,385 (1982).
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    3. In Order No. 225, the Commission adopted Rule 715, which governs 
interlocutory appeals to the Commission and sets forth the relevant 
standard by which a presiding officer or the Motions Commissioner 
determines whether to permit or deny an interlocutory appeal to the 
Commission. These procedures allow a question raised in a proceeding 
pending before a judge, or other presiding officer, to be determined by 
the Commission at a time prior to presentation of the entire case to 
the Commission for decision or review.\2\
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    \2\ 18 CFR 385.715.
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    4. In Order No. 402, the Commission revised Rule 715 and required 
that those filing an appeal of a denial of a motion to permit an 
interlocutory appeal separately serve an additional copy of the appeal 
on the Motions Commissioner.\3\
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    \3\ Rules of Practice and Procedure; Interlocutory Appeals, 
Order No. 402, 49 FR 39538 (October 9, 1984), FERC Stats. & Regs. ] 
30,604 (1984).
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III. Discussion

    5. The Commission is amending Rule 715(c)(1) to require persons 
filing an interlocutory appeal to serve an additional copy of the 
appeal of a denial of a motion to permit an interlocutory appeal on the 
General Counsel.
    6. The Motions Commissioner has seven days after an appeal is filed 
to make a determination as to whether or not the participant that has 
filed the appeal has demonstrated extraordinary circumstances that 
warrant Commission action.\4\ Within those seven days, the Motions 
Commissioner must: (1) Obtain the participant's filing; (2) consider 
whether the information presented is sufficiently complete; and (3) 
determine whether extraordinary circumstances exist which make prompt 
Commission review of the contested ruling necessary to prevent 
detriment to the public interest or to prevent irreparable harm to a 
person. If no extraordinary circumstances determination is made within 
seven days after the appeal is filed and if the Motions Commissioner 
has not otherwise provided for a different time period to receive and 
consider additional information, the appeal is automatically denied 
under Rule 715(c)(5).\5\
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    \4\ 18 CFR 385.715.
    \5\ Id.; Rules of Practice and Procedure; Interlocutory Appeals, 
Order No. 402, 49 FR 39538 (October 9, 1984), FERC Stats. & Regs. ] 
30,604 (1984).
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    7. The Motions Commissioner, as noted, has only seven days to 
decide whether an appeal meets the extraordinary circumstances 
standard. Thus, it is important that the Motions Commissioner be made 
aware of the appeal as quickly as possible.\6\
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    \6\ 18 CFR 385.715; Rules of Practice and Procedure; 
Interlocutory Appeals, Order No. 402, 49 FR 39538 (October 9, 1984), 
FERC Stats. & Regs. ] 30,604 (1984).
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    8. The Commission believes that serving a copy of the appeal on the 
General Counsel, in addition to the Motions Commissioner, will better 
ensure that the Motions Commissioner receives the appeal in sufficient 
time to reach a decision.

IV. Information Collection Statement

    9. Office of Management and Budget (OMB) regulations require OMB to 
approve certain information collection requirements imposed by agency 
rule.\7\ However, this instant Final Rule does not contain any 
information collection requirements and compliance with OMB regulations 
is thus not required.
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    \7\ 5 CFR 1320.12.
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V. 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.\8\ 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 of 1969. Part 380 of the Commission's regulations lists exemptions 
to the requirement to draft an Environmental Analysis or Environmental 
Impact Statement. Included is an exemption for procedural, ministerial 
or internal administrative actions.\9\ This rulemaking is exempt under 
that provision.
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    \8\ Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. 
] 30,783 (1987).
    \9\ 18 CFR 380.4(a)(1).
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VI. Regulatory Flexibility Act

    11. The Regulatory Flexibility Act of 1980 (RFA) \10\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
This instant Final Rule concerns agency procedures. The Commission 
certifies that it will not have a significant economic impact upon 
participants in Commission proceedings. An analysis under the RFA is 
not required.
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    \10\ 5 U.S.C. 601-12.
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VII. 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 the Commission's Home Page (http://www.ferc.gov) and 
in the Commission'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 the Commission'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.
    14. User assistance is available for eLibrary and the Commission'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].

VIII. Effective Date

    15. The Commission is issuing this rule as an instant 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 or 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.
    16. These regulations are effective September 14, 2009.

List of Subjects in 18 CFR Part 385

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

    By the Commission.
Kimberly D. Bose,
Secretary.

0
In consideration of the foregoing, the Commission amends Part 385, 
Chapter I,

[[Page 41039]]

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-825v, 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 
42 U.S.C. 7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App. 
U.S.C. 1-85 (1988).


0
2. Section 385.715, paragraph (c)(1), is revised to read as follows:


Sec.  385.715  Interlocutory appeals to the Commission from rulings of 
presiding officers (Rule 715).

* * * * *
    (c) Appeal of a presiding officer's denial of motion to permit 
appeal. (1) If a motion to permit appeal is denied by the presiding 
officer, the participant who made the motion may appeal the denial to 
the Commissioner who is designated Motions Commissioner, in accordance 
with this paragraph. For purposes of this section, ``Motions 
Commissioner'' means the Chairman or a member of the Commission 
designated by the Chairman to rule on motions to permit interlocutory 
appeal. Any person filing an appeal under this paragraph must serve 
separate copies of the appeal on the Motions Commissioner and on the 
General Counsel by Express Mail or by hand delivery.
* * * * *
[FR Doc. E9-19471 Filed 8-13-09; 8:45 am]
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