[Federal Register Volume 64, Number 67 (Thursday, April 8, 1999)]
[Rules and Regulations]
[Pages 17087-17100]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8518]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 1b, 343, and 385
[Docket No. RM98-13-000; Order No. 602]
Complaint Procedures
Issued March 31, 1999.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
revising its regulations governing complaints filed with the Commission
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. The
Final Rule is designed to encourage and support consensual resolution
of complaints, and to organize the complaint procedures so that all
complaints are handled in a timely and fair manner.
In order to organize the complaint procedures so that all
complaints are handled in a timely and fair manner, the Commission is
revising Rule 206 of its Rules of Practice and Procedure. Among other
things, the Commission is requiring that complaints meet certain
informational requirements, requiring answers to be filed in a shorter,
20-day time frame, and providing various paths for resolution of
complaints, including Fast Track processing for complaints that are
highly time sensitive. The Commission is also adding a new Rule 218
providing for simplified procedures for complaints where the amount in
controversy is less than $100,000 and the impact on other entities is
de minimis.
The Commission is codifying its current Enforcement Hotline
procedures in Part 1b, Rules Relating to Investigations and revising
its alternative dispute resolution regulations (Rules 604, 605 and 606)
to conform to the changes made by the Administrative Dispute Resolution
Act of 1996. Finally, the Commission is revising certain sections of
Part 343, Procedural Rules Applicable to Oil Pipeline Proceedings, to
conform to the changes in the Commission's complaint procedures in Part
385 of the regulations.
DATES: The regulations are effective May 10, 1999.
ADDRESSES: Federal Energy Regulatory Commission, 888 First Street,
N.E., Washington, D.C. 20426.
FOR FURTHER INFORMATION CONTACT: David Faerberg, Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street, N.E.,
Washington, D.C. 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, N.E., Room 2A, Washington, D.C. 20426.
The Commission Issuance Posting System (CIPS) provides access to
the texts of formal documents issued by the Commission. CIPS can be
accessed via Internet through FERC's Homepage (http://www.ferc.fed.us)
using the CIPS Link or the Energy Information Online icon. The full
text of this document will be available on CIPS in ASCII and
WordPerfect 6.1 format. CIPS is also available through the Commission's
electronic bulletin board service at no charge to the user and may be
accessed using a personal computer with a modem by dialing 202-208-
1397, if dialing locally, or 1-800-856-3920, if dialing long distance.
To access CIPS, set your communications software to 19200, 14400,
12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex, no parity, 8
data bits and 1 stop bit. 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 Homepage 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
[[Page 17088]]
International, Inc. is located in the Public Reference Room at 888
First Street, N.E., Washington, D.C. 20426.
The Commission has concluded, with the concurrence of the
Administrator of the Office of Information and Regulatory Affairs of
OMB that this rule is not a ``major rule'' as defined in section 351 of
the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 804(2).
Before Commissioners: James J. Hoecker, Chairman; Vicky A. Bailey,
William L. Massey, Linda Breathitt, and Curt Hebert, Jr.
I. Introduction
The Federal Energy Regulatory Commission (Commission) is revising
its regulations governing complaints filed with the Commission 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.1
The Final Rule is designed to encourage and support consensual
resolution of complaints, and to organize the complaint procedures so
that all complaints are handled in a timely and fair manner.
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\1\ In the Notice of Proposed Rulemaking (NOPR), the Commission
inadvertently omitted a reference to the Outer Continental Shelf
Lands Act (OCSLA) as one of the statutes under which complaints may
be filed, and, therefore, affected by the proposed regulations.
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In order to organize the complaint procedures so that all
complaints are handled in a timely and fair manner, the Commission is
revising Rule 206 of its Rules of Practice and Procedure.2
Among other things, the Commission is requiring that complaints meet
certain informational requirements, requiring answers to be filed in a
shorter, 20-day time frame, and providing various paths for resolution
of complaints, including Fast Track processing for complaints that are
highly time sensitive. These changes should ensure that the Commission
and all parties to a dispute have as much information as early in the
complaint process as possible to evaluate their respective positions.
The changes should also ensure that the process used to resolve a
complaint is suited for the facts and circumstances surrounding the
complaint, the harm alleged, the potential impact on competition, and
the amount of expedition needed.
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\2\ 18 CFR 385.206 (1998).
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The Commission is adding a new Rule 218 providing for simplified
procedures for complaints where the amount in controversy is less than
$100,000 and the impact on other entities is de minimis.
The Commission is also taking a number of steps to support its
policy of promoting consensual resolution of disputes among parties in
the first instance. The recently created Dispute Resolution Service
will work with all those interested in Commission activities to
increase awareness and use of alternative dispute resolution (ADR) in
all areas the Commission regulates. This new service will also help
identify cases appropriate for ADR processes and conduct ADR processes,
including convening sessions. In this Final Rule, the Commission is
codifying its current Enforcement Hotline procedures in Part 1b, Rules
Relating to Investigations.3 This change will further
publicize and establish the Hotline as a viable alternative to the
filing of a formal complaint.
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\3\ 18 CFR Part 1b (1998).
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The Commission is also revising its alternative dispute resolution
regulations (Rules 604, 605 and 606) 4 to conform to the
changes made by the Administrative Dispute Resolution Act of
1996.5 The ADRA of 1996 provides that the confidentiality
provisions of the Act pre-empt the disclosure requirements of the
Freedom of Information Act (FOIA). The ADRA of 1996 also eliminated
provisions which allowed an agency to terminate the arbitration
proceeding at any point prior to the issuance of an award, and to
vacate or opt-out of an arbitration award within 30 days after the
service of the award. By bringing existing Rules 604, 605, and 606 into
compliance with the confidentiality, termination and opt-out provisions
of the 1996 ADRA, the Commission will further foster an environment
that promotes consensual resolution of disputes by eliminating
provisions in its regulations which were seen as having a chilling
effect on the use of ADR.6
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\4\ 18 CFR 385.604-606 (1998).
\5\ Pub. L. 104-320, 110 Stat. 3870 (October 19, 1996).
\6\ June 23, 1998 Comments of the American Arbitration
Association in Docket No. PL98-4-000 at 5.
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The Commission is also revising certain sections of Part 343,
Procedural Rules Applicable to Oil Pipeline Proceedings,7 to
conform to the changes in the Commission's complaint procedures in Part
385 of the regulations.
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\7\ 18 CFR Part 343 (1998).
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II. Background
The Commission first received requests to change its complaint
procedures in filings arising out of a proceeding concerning interstate
natural gas pipelines. The Pipeline Customer Coalition 8
filed a proposal for expedited procedures for the consideration and
resolution of complaints filed with respect to natural gas pipeline
rates, services, or practices.9 The Interstate Natural Gas
Association Of America (INGAA) filed its own proposal and comments in
opposition to the Coalition's proposal.10
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\8\ The Pipeline Customer Coalition consists of the American
Iron and Steel Institute, the LDC Caucus of the American Gas
Association, American Public Gas Association, Associated Gas
Distributors, Georgia Industrial Group, Independent Petroleum
Association of America, Natural Gas Supply Association, Process Gas
Consumers, and United Distribution Companies.
\9\ Comments and Petition of the Pipeline Customer Coalition,
and Amended Petition of the Pipeline Customer Coalition for Proposed
Rulemaking filed on May 31, 1996, and April 3, 1997, respectively,
in Regulation of Negotiated Transportation Services of Natural Gas
Pipelines, et al., Docket Nos. RM96-7-000 and RM96-12-000.
\10\ Comments and Petition of the Interstate Natural Gas
Association of America filed on April 10, 1997, in Regulation of
Negotiated Transportation Services of Natural Gas Pipelines, et al.,
Docket Nos. RM96-7-000, RM96-12-000, and RM97-4-000.
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On March 30, 1998, in Docket No. PL98-4-000, the Commission held a
symposium on the Commission's complaint procedures to determine (1) how
well the Commission's current complaint procedures are working, (2)
whether changes to the current complaint procedures are appropriate,
and (3) what type of changes should be made.11 Whereas the
Coalition's and INGAA's proposals were restricted to complaints against
pipelines, the purpose of the symposium was to discuss the Commission's
complaint procedures on a generic basis. The Commission obtained a
cross section of views from all segments of the gas, electric, and oil
pipeline industries, as well as state regulatory agencies and members
of the energy bar. The Commission received a number of comments
following the symposium representing a broad range of interests from
the natural gas pipeline, electric, and oil pipeline industries. As a
result of a commitment made by representatives of various segments of
the electric industry at the March 30, 1998 symposium, the Electric
Industry Dispute Resolution Working Group (Electric Working Group)
12 filed
[[Page 17089]]
recommendations and proposed procedures for dispute
resolution.13
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\11\ Symposium on Process and Reform: Commission Complaint
Procedures, Docket No. PL98-4-000.
\12\ The Electric Working Group includes representatives from
American Public Power Association, Coalition for a Competitive
Electric Market, Edison Electric Institute, Electric Power Supply
Association, Illinois Municipal Electric Agency, National Rural
Electric Cooperative Association and Transmission Access Policy
Study Group, working with the assistance and support of the American
Arbitration Association.
\13\ Electric Industry Dispute Resolution Working Group
Recommendations and Proposed Procedures for Dispute Resolution filed
on June 23, 1998, in Symposium on Process and Reform: Commission
Complaint Procedures, Docket No. PL98-4-000.
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On July 29, 1998, the Commission issued a notice of proposed
rulemaking (NOPR) in Docket No. RM98-13-000.14 The
Commission received 57 comments on the NOPR representing all segments
of the gas, electric, and oil pipeline industries.
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\14\ 63 FR 41982 (Aug. 6, 1998).
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III. Discussion
The natural gas and electric industries have undergone and will
continue to undergo significant transformations as a result of changes
to the Commission's regulatory policies. These industries are now
operating in an environment which is increasingly driven by competitive
market forces. Because of the short-term transactional nature of the
electric and gas markets, and the fact that competitive changes happen
quickly, timely and effective resolution of complaints has become more
crucial. If the Commission is to use lighter-handed forms of
regulation, it must have a complaint process that ensures that
complainants will receive adequate protection and redress under the
statutes administered and enforced by the Commission. Complaints enable
the Commission to monitor activities in the marketplace and provide an
early warning system for identifying potential problems. This Final
Rule is necessary to provide assurance to the public that complaints
will receive appropriate consideration and that complaints that require
expedited consideration will receive it.
The revised regulations will encourage and support the resolution
of disputes by the parties themselves prior to the filing of a formal
complaint. If potential complaints can be resolved or the number of
issues in a potential complaint can be reduced informally, the
Commission then can focus its attention on the significant remaining
issues raised in the formal complaints ultimately filed with the
Commission.
The revised regulations organize the complaint procedures so that
all complaints are handled in a timely, fair manner based upon an
appropriate record. The regulations will assure that those complaints
deserving of expedition receive it by recognizing that the appropriate
process to be used for a particular complaint depends on many factors
including the harm alleged and the facts and circumstances surrounding
the complaint.
The proceedings conducted over the past 12 months and the comments
received in response to the Commission's NOPR have all served to
emphasize the need to have in place procedures that will enable
resolution without delay of disputes that will arise in the context of
the rapidly moving competitive circumstances of today's federally
regulated energy industries. This Final Rule must be viewed against a
background of a more complex energy market where regulated companies
are driven increasingly by competitive market forces. The dynamics of
competitive markets and lighter-handed Commission regulation can be
expected to change the nature of the complaints received. The
Commission will be faced both with novel commercial problems and with
requests for ``real time'' relief. These rules will allow the
Commission to respond to the greater demands that will be placed upon
it to expeditiously resolve disputes.
A. Informational Requirements for Complaints
The final rule revises Rule 206, set forth in section 385.206 of
the Commission's regulations, to require that a complaint must satisfy
certain informational requirements. A complaint must: (1) Clearly
identify the action or inaction which is alleged to violate applicable
statutory standards; (2) explain how the action or inaction violates
applicable statutory standards; (3) set forth the business, commercial,
economic or other issues presented by the action or inaction as such
relate to or affect the complainant; (4) make a good faith effort to
quantify the financial impact or burden (if any) created for the
complainant as a result of the action or inaction; (5) indicate the
practical, operational, or nonfinancial impacts imposed as a result of
the action or inaction, including, where applicable, the environmental,
safety or reliability impacts of the action or inaction; (6) state
whether the issues presented are pending in an existing Commission
proceeding or a proceeding in any other forum in which the complainant
is a party, and if so, provide an explanation why timely resolution
cannot be achieved in that forum; (7) state the specific relief or
remedy requested, including any request for stay, extension of time, or
other preliminary relief, and in cases seeking other preliminary
relief, a detailed explanation of why such relief is required
addressing: (i) the likelihood of success on the merits; (ii) the
nature and extent of the harm if preliminary relief is denied; (iii)
the balance of the relevant interests, i.e., the hardship to nonmovant
if preliminary relief is granted contrasted with the hardship to the
movant if preliminary relief is denied; and (iv) the effect, if any, of
the decision on preliminary relief on the public interest; (8) include
all documents that support the facts in the complaint in possession of,
or otherwise attainable by, the complainant, including, but not limited
to, contracts, affidavits, and testimony; (9) state (i) whether the
Enforcement Hotline, Dispute Resolution Service, tariff-based dispute
resolution mechanisms, or other informal procedures were used; (ii)
whether the complainant believes that alternative dispute resolution
under the Commission's supervision could successfully resolve the
complaint; (iii) what types of ADR procedures could be used; and (iv)
any process that has been agreed on for resolving the complaint; (10)
include a form of notice suitable for publication in the Federal
Register and submit a copy of the notice on a separate 3\1/2\ inch
diskette in ASCII format; and (11) explain with respect to requests for
Fast Track processing pursuant to section 385.206(h), why the standard
processes will not be adequate for expeditiously resolving the
complaint.15
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\15\ The Fast Track process is describe in section H below.
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The Commission is adopting, as the final rule, the proposal in the
NOPR with certain modifications. The NOPR had proposed to require
complaints to include all documents that support the facts in the
complaint. A number of commenters (Dynegy, American Public Power
Association, Transmission Dependent Utility Systems) were concerned
that they would not be able to meet the requirement to include all
documents that support the facts in the complaint because, they
asserted, in many instances relevant documents will be in the hands of
the respondent. Section 385.206(b)(8) adopted in the final rule is
modified from that proposed to request ``all documents that support the
facts in the complaint in possession of, or otherwise attainable by,
the complainant, including, but not limited to, contracts, affidavits,
and testimony.'' This should alleviate commenters' concerns.
The NOPR proposed to require complainants to quantify the financial
impact or burden (if any) created for the complainant as a result of
the action or inaction of the respondent. A number of commenters (Enron
Capital and Trade, American Public Power Association, Missouri Public
Service Commission) were concerned that they would not be able to meet
the requirement to quantify
[[Page 17090]]
the financial impact or burden (if any) created for the complainant as
a result of the action or inaction. Section 385.206(b)(4) adopted in
the final rule is modified from that proposed to require a complainant
to ``make a good faith effort to quantify the financial impact or
burden (if any) created for the complainant as a result of the action
or inaction.''
The Pipeline Customer Coalition was concerned about having to
reveal commercially sensitive information for the purposes of
supporting a complaint. To protect such information, the Pipeline
Customer Coalition proposed that (a) the complaint specifically
indicate the absence of certain information that the complainant
regards as commercially sensitive and (b) the complaint include a
proposed protective order that could be adopted by the Commission to
facilitate the disclosure of confidential factual data to the
respondent and other parties to the complaint proceeding.
The Commission adopts here a procedure akin to that for oil
pipelines filing applications for market power determinations where
interested persons must execute an applicant-proposed protective
agreement to receive the complete application. A complainant would file
its complete complaint with a request for privileged treatment. The
respondent and other parties would receive a redacted version of the
complaint along with a complainant-proposed protective agreement. The
respondent and parties would receive the privileged version of the
complaint by executing the protective agreement and returning it to the
complainant. Such a procedure has the advantage of enabling parties to
resolve disclosure disputes through consensual agreement among
themselves without the need for Commission involvement in every
instance involving privileged information. The Commission could still
step in if parties were unable to agree on protective conditions or
expressed a need for the added assurance against disclosure that would
be offered by a Commission-issued protective order. If necessary, the
Commission could develop a model protective agreement akin to the model
protective order developed recently by the Office of Administrative Law
Judges.
Therefore, in section 385.206 adopted in the final rule, a new
section (e) is added describing the privileged treatment procedures. A
complainant may request privileged treatment of documents and
information contained in the complaint pursuant to section 388.112 of
the Commission's regulations.16 In the event privileged
treatment is requested, the complainant must file the original and
three copies of its complaint with the information for which privileged
treatment is sought and 11 copies of the pleading without the
information for which privileged treatment is sought. The original and
three copies must be clearly identified as containing information for
which privileged treatment is sought. A complainant must provide a copy
of its complaint without the privileged information and its proposed
form of protective agreement to each entity that is to be served
pursuant to section 385.206(c). An interested person must make a
written request to the complainant for a copy of the complete complaint
within 5 days after the filing of the complaint. The request must
include an executed copy of the protective agreement. A complainant
must provide a copy of the complete complaint to the requesting person
within 5 days after receipt of the written request and an executed copy
of the protective agreement. Any party can object to the proposed form
of protective agreement.
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\16\ 18 CFR 388.112 (1998).
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Because of the 10 days that are provided to exchange information
when the privileged treatment provisions are invoked, the Commission is
providing in section 385.206(f) of the final rule that answers,
interventions and comments are due 30 days after the complaint is filed
when the privileged provisions are used. This will ensure that
respondents will have the normal 20 days to file an answer once they
have received the complete complaint.17 In addition, section
385.206(f) provides that in the event there is an objection to the
protective agreement, the Commission will establish the time when
answers, interventions, and comments will be due.
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\17\ See Section E below for a discussion of the time period for
answers.
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Language used in the NOPR in proposed sections 385.206(b)(1) and
(2) would have required a complainant to identify and explain ``why the
action or inaction is unjust, unreasonable, unduly discriminatory or
preferential, or otherwise unlawful, or is contrary to a condition in a
certificate or license, a tariff provision, or the terms of an
exemption.'' This language, however, may not describe all the statutory
standards that could apply in a complaint situation. The Outer
Continental Shelf Lands Act provides, for example, that pipelines must
transport ``without discrimination'' and must provide ``open and
nondiscriminatory access.'' Accordingly, the informational requirements
adopted in section 385.206(b)(1) and (2) of the final rule are modified
from those proposed to require that complainants ``identify the action
or inaction which is alleged to violate applicable statutory standards
or regulatory requirements,'' and explain ``why the action or inaction
violates applicable statutory standards or regulatory requirements.''
This will avoid any confusion that might have resulted from the
language in the NOPR being construed in a way as to limit when
complaints could be filed.
A number of commenters (Piedmont Natural Gas, Florida Cities, Joint
Consumer Advocates) requested that a final rule provide complainants
with discovery rights. The Commission will not include discovery rights
as part of the final rule. However, the Commission recognizes that
there will be instances in which information necessary to support a
complainant's allegation is not readily available because it is in the
hands of the respondent. In these cases, a complainant should file all
the information that it has. It should also identify as support for a
request for discovery the further information that it needs that is in
the hands of the respondent. The Commission will address these
situations on a case by case basis.
Should there be factual issues that require record development
through hearing before an ALJ, discovery would be available as an
element of the usual hearing process. A complainant that suggests a
hearing as its procedural path could also include discovery requests
with its complaint. If a hearing is established, the ALJ would control
discovery.
B. Informal Resolution
The Commission strongly encourages parties to attempt informal
resolution of their disputes prior to the filing of a formal complaint.
The Commission therefore proposed in the NOPR that parties be required
to explain whether alternative dispute resolution was tried and, if
not, why. After considering the comments the Commission adopts the
proposal in the NOPR.
In addition to such existing informal dispute resolution mechanisms
as those in tariff provisions and the Commission's Enforcement Hotline,
the Commission currently is developing an expanded alternative dispute
resolution capability as part of its internal restructuring. Having
these capabilities available should facilitate the informal resolution
of many disputes and save parties the time and expense associated
[[Page 17091]]
with the filing and resolution of a formal complaint. Parties to a
dispute therefore should have sufficient means and incentive to resolve
their disputes informally. A potential complainant, however, should be
given the broadest possible options in how it wishes to proceed with a
complaint. The Commission, therefore, will not mandate the use of
informal procedures prior to filing a formal complaint as requested by
certain parties (Williams, Koch, INGAA, Mobil Pipe Line, El Paso
Energy, the Utility Coalition, Energy, and NYSE).
The Commission also requested comments on what type of professional
assistance the Commission might provide to facilitate informal dispute
resolution. Wisconsin Distributor Group stated that the Commission
should publish on a regular basis industry specific status reports on
complaints. Enron Capital and Trade stated that the Commission should
have a publication or web site, to provide information about a party's
options in filing a complaint and how the process could work, or a
procedural hotline. Indicated Shippers stated that complaints should be
posted on a web site because the Commission's Records and Information
Management System (RIMS) is difficult to access and can be blurred.
American Public Power Association stated that the Commission should
establish a division of dispute resolution. Transmission Dependent
Utility Systems stated that the Commission should have prefiling
conferences for complaints in which Staff meets informally with parties
and renders non-binding advice. EPSA stated informal procedures will be
most effective if staff plays an active role. USDA-Rural Utilities
Service stated that the Commission should post on its website the names
of a case officer for each docket who is available to answer questions.
In their reply comments, Pipeline Customer Coalition and Indicated
Shippers supported the idea of the publication of a complaint status
report.
Many of these ideas will prove valuable as the Commission moves
towards greater reliance on the electronic exchange of information. The
Commission is currently engaging in an internal review of its
information technology capabilities and is examining the issue of
public access to information and electronic filing in Docket No. PL98-
1-000. 18 Although the Commission will put certain basic
information about a party's options in filing a complaint on the FERC
Homepage, the idea of a complaint status report, as well as other
electronic access issues relating to complaints, will be considered as
part of the broader review of information technology capabilities. In
addition, the Commission's new Dispute Resolution Service will be a
resource that can be used to aid in the informal resolution of disputes
before, or after, a complaint is filed. Further, the Enforcement
Hotline will continue to be available to resolve informal complaints
prior to a formal filing.
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\18\ Public Access to Information and Electronic Filing.
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C. Simultaneous Service
Section 385.206(c) adopted in the final rule is modified from that
proposed to read:
Any person filing a complaint must serve a copy of the complaint
on the respondent, affected regulatory agencies, and others the
complainant reasonably knows may be expected to be affected by the
complaint. Service must be simultaneous with filing at the
Commission for respondents and affected entities in the same
metropolitan area as the complainant. Simultaneous or overnight
service is acceptable for respondents and affected entities outside
the complainant's metropolitan area. Simultaneous service can be
accomplished through electronic mail, fax, express delivery, or
messenger.
The NOPR proposed to require a complainant to serve a copy of the
complaint on the respondent and all others who the complainant knows
will be affected simultaneously with filing at the Commission. Certain
commenters (Pipeline Customer Coalition, Williams Companies, Enron
Capital, Dynegy, NRECA, ProLiance, Chevron Products Co.) were concerned
that service on all parties who the complainant knows will be affected
is speculative. Certain commenters (CPUC, USDA-Rural Utilities Service)
also requested that simultaneous service include affected regulatory
agencies. Finally, INGAA requested that service should be overnight for
out of town residents and the same day for in town residents. These
concerns and requests are reasonable and their substance is
incorporated in the final rule in section 385.206(c).
INGAA requested that the Commission should explore the possibility
of electronic service. Transmission Dependent Utility Systems asserted
that serving all affected customers may be burdensome and that
complainants should instead provide a detailed electronic notice.
Missouri PSC asserted that the respondent should post the complaint on
an EBB or the internet.
As discussed above, electronic filing issues, including electronic
service, are being examined in Docket No. PL98-1-000 and thus should be
addressed in that proceeding. In addition, issues concerning electronic
access to information are being explored as part of the Commission's
internal review of its information technology capabilities.
D. Notice of the Complaint
The NOPR proposed that the Commission issue a notice of complaint
within two days. Certain commenters (Pipeline Customer Coalition, AOPL,
Cenex Pipeline) requested that this be codified in the regulations. The
Commission will not include such a requirement in the regulations.
The date of issuance of the notice of a complaint is not crucial to
a speedy resolution of a complaint proceeding because the time for
filing answers, comments, and interventions is calculated based on the
date the complaint is filed rather than the date of the notice.
Nevertheless, the Commission intends to issue all notices promptly and
expects to be able to issue most notices within two days.
A number of commenters (Enron Pipeline, Koch Gateway, El Paso
Energy, Equilon Pipeline, Williams, INGAA, Duke Energy, Consumers
Energy, Oil Pipeline Shipper Group, and Express Pipeline Partnership)
suggested that complaints be screened for deficiencies and, if
necessary, dismissed prior to a notice being issued. Pipeline Customer
Coalition opposes screening, stating that respondents should be
required to identify any complaint deficiencies in their answers.
The Commission agrees with the Pipeline Customer Coalition that any
deficiencies in a complaint should be pointed out in the answer and the
Commission can make a decision based on all the pleadings. Further, in
the Commission's experience it is unlikely that a complaint would be so
patently deficient as to require a summary dismissal on procedural
grounds. The Commission therefore will not adopt screening for
deficiencies as part of the final rule.
E. Time Period for Answers, Comments, Interventions
Section 385.206(f) adopted in the final rule is modified from that
proposed to require that answers, interventions, and comments to a
complaint must be filed within 20 days after the complaint is filed,
or, in cases where the complainant requests privileged treatment for
information in its complaint, 30 days after the complaint is filed. The
NOPR proposed to require answers, interventions and comments to
complaints to be filed within 10 days
[[Page 17092]]
after the complaint is filed. Almost all the comments maintained that
the proposed 10 day period for answers, comments, and interventions is
too short. Parties suggested various alternatives which ranged from 10
business days to the current 30 day answer period. In the Commission's
view a shorter response period, such as 20 days, is preferable to the
current 30 day answer period. Twenty days should provide respondents
with a sufficient amount of time to answer a complaint while being
consistent with the goal of speeding up the complaint resolution
process.
Certain commenters requested that the final rule provide for
replies as requested. The Commission's regulations do not provide for
replies to answers, and allowing replies in all instances would
unnecessarily lengthen the complaint process.
F. Revisions to Oil Pipeline Regulations
The final rule revises certain sections of Part 343, Procedural
Rules Applicable to Oil Pipeline proceedings, to conform with the
changes to the Commission's complaint procedures.
A number of oil pipelines maintained that no change is needed for
oil pipelines and the Commission should retain the current oil pipeline
regulations concerning complaints. Section 343.2(c) of the oil pipeline
regulations, which was adopted in response to the Energy Policy Act of
1992, provides specific substantive standards for filing complaints
concerning both rate and non-rate matters. For rates established under
section 342.3 (indexing), a complaint
must allege reasonable grounds for asserting that the rate violates
the applicable ceiling level, or that the rate increase is so
substantially in excess of the actual cost increases incurred by the
carrier that the rate is unjust and unreasonable, or that the rate
decrease is so substantially less than the actual cost decrease
incurred by the carrier that the rate is unjust and unreasonable.
For rates established under section 342.4(c) (other rate changing
methodologies), a complaint ``must allege reasonable grounds for
asserting that the rate is so substantially in excess of the actual
cost increases incurred by the carrier that the rate is unjust and
unreasonable.'' For non-rate matters, a complaint ``must allege
reasonable grounds for asserting that the operations or practices
violate a provision of the Interstate Commerce Act, or of the
Commission's regulations.'' Section 343.4 requires a response to a
complaint within 30 days after the complaint is filed. Finally, section
343.5 provides that the Commission ``may require parties to enter into
good faith negotiations to settle oil pipeline rate matters.
The Association of Oil Pipelines (AOPL) stated that the Commission
adopted oil pipeline specific complaint regulations only four years
ago. AOPL submitted that these regulations work for the oil pipeline
industry. AOPL stated that oil pipelines are not going through the
transitions facing the electric and natural gas industries and there is
no reason to disrupt a procedure that works merely for the convenience
of having one procedure that applies to all industries.
The final rule requires complaints concerning oil pipeline non-rate
matters to comply with the changes to the Commission complaint
procedures. Complaints concerning rates, however, are not subject to
all the changes. While non-rate complaints are subject to the new
substantive informational requirements adopted in section 385.206(b),
rate complaints would be subject to the existing section 343.2(c)
substantive rate requirements. While non-rate complaints would have to
``identify the action or inaction which is alleged to violate
applicable statutory standards or regulatory requirements'' and
``explain how the action or inaction violates applicable statutory
standards or regulatory requirements,'' rate complaints instead would
have to meet the section 343.2(c) requirements. Therefore, a sentence
will be added to sections 343.2(c)(1) and (2) indicating that, in
addition to meeting the requirements of the section, a complaint must
also comply with the requirements of section 385.206, except sections
385.206(b)(1) and (2). In all other respects both rate and non-rate
complaints would be treated the same. The remainder of the
informational requirements adopted here in section 385.206(b) and the
other procedural changes discussed throughout this Final Rule thus
would be applied to all oil pipeline rate complaints. This will ensure
the consistency of the complaint procedures for all industries
regulated by the Commission, while preserving the rate complaint
standards adopted as an integral part of the package of ratemaking
changes enacted in response to the Energy Policy Act of 1992.
G. Content of Answers
Section 385.213 adopted in the final rule is modified from that
proposed to require that answers include ``all documents that support
the facts in the answer in possession of, or otherwise attainable by,
the respondent, including, but not limited to, contracts, affidavits,
and testimony.'' This is parallel to the change made to the
informational requirements for complaints. The NOPR proposed to revise
Rule 213 to require that answers to complaints must include all
documents that support the facts in the answer, including, but not
limited to contracts, affidavits, and testimony.
The Commission rejects commenters' requests that the answer only
admit or deny wrongdoing and not include documents. One of the purposes
of revising the complaint procedures is to ensure that as much
information as possible is available to the Commission and the parties
to the proceeding as early as possible. An answer which simply admits
or denies facts without any more would prolong the proceeding by
requiring the Commission or other parties to request further
information by other means.
In addition, the final rule is adopting for answers the same
confidentiality provisions as those adopted for complaints as discussed
in section A above. Thus, a respondent would file its complete answer
with a request for privileged treatment pursuant to section 388.112 of
the Commission's regulations. The complainant and other parties would
receive a redacted version of the complaint along with a respondent-
proposed protective agreement. The complainant and parties would
receive the privileged version of the answer by executing the
protective agreement and returning it to the respondent.
Section 385.213 adopted in the Final Rule is modified from that
proposed to require the respondent to describe the formal or consensual
process it proposes for resolving the complaint. This requirement was
discussed in the NOPR but was not included in the proposed regulations.
In the NOPR, the Commission stated that, to the extent that a
respondent does not comply with Rule 213, the Commission will consider
granting the relief requested by the complainant based upon the
pleadings alone. The Commission further stated that respondents filing
what is in essence a general denial would do so at their own peril.
Williams Companies contended that relief should not be granted by
default. The Commission's discussion in the NOPR with respect to
answers was not a new proposal. Rather, the Commission was only
reiterating the procedure in section 385.213(c)(3) of its existing
regulations, which provides for summary dispositions, pursuant to
section 385.217, of answers that do not satisfy certain requirements.
[[Page 17093]]
H. Complaint Resolution Paths
Section 385.206(g) adopted in the final rule describes a number of
procedural options that the Commission may use to resolve issues raised
in complaints. These complaint resolution paths are (1) alternative
dispute resolution, (2) decision on the pleadings by the Commission,
and (3) hearing before an ALJ. Where a highly credible claim for relief
is presented, and a persuasive showing is made that standard complaint
resolution processing may not provide timely relief as quickly as
circumstances may demand, the Commission will put the complaint on a
Fast Track, to provide for expedited action by the Commission or an ALJ
in a matter of weeks. The Fast Track process is described in section
385.206(h) of the regulations adopted by the final rule. Preliminary
relief pending a resolution of the complaint by either the Commission
or an ALJ may be requested. A ruling on preliminary relief by an ALJ
would be appealable to the Commission. Such an appeal is provided for
in section 385.206(g)(2) adopted in the final rule. It is not the same
as an interlocutory appeal that would be filed pursuant to section
385.715 of the Commission's regulations.
The Commission in the NOPR did not propose to establish overall
time limits within which complaints must be resolved. It did, however,
describe target time frames that would allow a resolution of a
complaint as expeditiously as possible given the issues, parties,
circumstances, and the type of procedure used. A number of commenters
(Pipeline Customer Coalition, Fertilizer Institute, NGSA, American
Public Power Association, Electric Power Supply Association, USDA-Rural
Utilities Service) requested that the Commission codify deadlines for
actions in the proposed regulations. Other commenters (INGAA, El Paso
Energy, Duke Energy) asserted that target dates, not strict deadlines,
are appropriate.
The Commission intends to resolve complaints as quickly as possible
but does not consider it necessary to codify deadlines in its
regulations. Specific targets for action, however, will provide
guidelines that may help meet an accelerated procedural agenda. The
Commission, therefore, will adopt the target time frames discussed in
the NOPR and below. At the same time, having target, rather than
required, time frames will allow the Commission the flexibility to
adjust when necessary to particular complicated issues and unforeseen
circumstances.
(i) Alternative Dispute Resolution
Section 385.206(b)(9) of the final rule requires that a complainant
state what types of ADR procedures could be used to resolve the
complaint or describe any process that has been agreed on for resolving
the complaint. Section 385.213(c)(4) of the final rule requires that
the respondent in its answer describe the formal or consensual process
it proposes for resolving the complaint. If there is agreement among
the parties that a specific ADR procedure should be used, the
Commission would simply assign the case to ADR. If there are competing
proposals for the use of ADR, the Commission could attempt to obtain
agreement from the affected parties for the use of one of the ADR
proposals. If no agreement concerning the use of ADR can be reached,
the complaint will be assigned to a settlement judge pursuant to
section 385.603 of the Commission's regulations or resolved using one
of the other complaint resolution paths.
Since ADR is a voluntary process, the time period in which a
decision can be rendered is largely in the control of the affected
parties. The Commission, however, would treat ADR resolution like
uncontested settlements, and would therefore expect to issue any
subsequent orders no later than 45 days after the ADR resolution is
rendered.
(ii) Commission Decision on the Pleadings
Many complaints can be decided by the Commission based on the
pleadings alone. These types of cases usually involve discrete issues
that do not require development of a record before an ALJ.
The complaint would be assigned for consideration as soon as an
answer is filed and a decision by the Commission would expect to issue
within 60-90 days later. In some instances there might be a need to
clarify the parties' understanding of facts at issue, but this could be
accomplished through Staff data requests without affecting the overall
time for resolving the complaint. The total time within which a
Commission decision could be expected thus would be 110 days after a
complaint is filed.
(iii) Hearing Before an ALJ
Complaints not set for ADR consideration and not appropriate for
consideration on the pleadings alone would be set for hearing before an
ALJ for development of a factual record. When a complaint is set for
hearing before an ALJ, the objective will be for the ALJ to render an
initial decision no later than 60 days after the case is set for
hearing. Briefs on exceptions to an initial decision then would be due,
under the Commission's rules, 30 days after the initial decision, and
briefs opposing exceptions, 20 days thereafter. The Commission would
expect to issue an order on the exceptions no later than 90 days after
their filing. Thus, the total time for resolving these cases would be
no more than 220 days from the filing of the complaint. In most
instances it should be possible for an initial decision to be issued
within 60 days because the issues raised in complaints are often narrow
or discrete questions, and not the kind of wide range issues presented
in general rate cases. However, because these are target timeframes,
the ALJ will retain discretion to issue an initial decision in less or
more time, taking into account the complexity of the case, the number
of issues, or other factors.
A number of commenters (Enron, Enron Capital and Trade, Williams,
Koch, INGAA, Entergy, Southern Companies, and Duke Energy) requested
that complaints about changes to rates or tariffs be excluded from the
proposed procedures. No category of complaint should be excluded from
the proposed procedures. The Commission recognizes, however, that there
will be complaint cases that might not lend themselves to an initial
decision within 60 days. In such cases, involving large numbers of
parties, more complex issues, or difficult circumstances, the Presiding
ALJ could adjust the time frames as necessary to ensure development of
a complete record. This should alleviate the commenters' concerns.
(iv) Fast Track Processing
In instances involving disputes that require relief more quickly
than the usual target timeframes, the Commission will employ Fast Track
processing as a complement to its standard complaint resolution paths.
The Fast Track process is described in section 385.206(h) of the
regulations adopted by the final rule. The Fast Track will be available
when a complainant requests it and presents a highly credible claim and
persuasive showing that the standard processes will not be capable of
resolving the complaint promptly enough to provide meaningful relief.
An example might be where a shipper seeks access to a pipeline under
the Natural Gas Act, Natural Gas Policy Act or Outer Continental Shelf
Lands Act, alleging that the pipeline has unjustifiably withheld
service causing irreparable
[[Page 17094]]
harm. Another example might be where a transmission service provider
allegedly is blocking a customer's access to disputed transmission
capacity, essentially preventing a power purchase from an alternate
supplier and causing irreparable harm. A complainant requesting Fast
Track processing will be required to provide a satisfactory explanation
concerning whether ADR has been pursued prior to filing the complaint.
Under Fast Track processing, there would be an immediate (same or
next day) screening of a complaint alleging a need for accelerated
action to ensure that the complaint warrants accelerated processing. If
warranted, the answer period could be shortened to only several days.
After the respondent filed its answer, a further screening would decide
whether to assign the complaint for Fast Track processing. If the
complaint failed to meet the criteria for Fast Track processing, the
complaint would be processed under one of the standard complaint
resolution paths.
Complaints found to require the Fast Track processing would be
assigned for consideration expeditiously. The Commission expects to
issue a procedural decision to institute a hearing, establish ADR or
settlement procedures, if necessary and appropriate, within two or
three days after receiving answers to the complaint. The Fast Track
process, which is not appropriate for all complaints, seeks to provide
all interested parties with prompt resolution of time sensitive
complaints. Since this process is innovative and largely untested, the
Commission may examine its results in a year and may consider
appropriate changes or improvements to the process. Those that require
record development would be assigned to an ALJ for a prompt hearing to
receive oral testimony. Upon completing the hearing, the ALJ would
issue an initial decision either in writing or by reading it into the
record. An initial decision on a complaint assigned to Fast Track
processing could be expected in significantly less time than the 60
days generally contemplated for complaints not directed to the Fast
Track process. Hearing procedures may be compressed into only a few
days if the circumstances warrant. Cases not presenting questions for
which record development would be necessary would be assigned directly
to the Commission for resolution based on the pleadings. It is expected
that the Commission could issue an order on the merits within 20 days
after the answer is filed.
Rulings on requests for preliminary relief also can be considered
under the Fast Track process. Relief could be granted either by an ALJ,
where the case has been set for hearing, or by the Commission, where
the case has not been set for hearing.
Fast Track processing will be employed in only limited
circumstances because of the extraordinarily compressed time schedule
that would place a heavy burden on all parties to the proceeding. The
Commission strongly encourages potential complainants to seek Fast
Track processing sparingly and only in the most unusual cases that
demand such accelerated treatment. A misuse of Fast Track processing
could ultimately tax the Commission's limited resources and jeopardize
the availability of the Fast Track procedures. Any continuing pattern
of misuse by a particular party would also ultimately undermine that
party's credibility when future requests for Fast Track processing are
requested.
(v) Preliminary Relief
Any complaint can include a request for preliminary relief pending
a final merits decision on the complaint itself. If the complaint is
assigned for hearing, the ALJ will rule on the preliminary relief; the
Commission will rule on preliminary relief requested as part of a
complaint being considered based on the pleadings. Requests for
preliminary relief would be acted on while the Commission or an ALJ is
also considering the merits of the complaint. If the complaint has been
designated for Fast Track processing, a ruling on preliminary relief
would be almost immediate.
Where an ALJ acts on a request for preliminary relief, an appeal to
the Commission will lie and may be filed within 7 days of the ALJ's
decision. The Commission will issue a decision on the appeal promptly.
Section 385.206(g) of the final rule has been revised from that
proposed to provide for appeals of an ALJ's decision on preliminary
relief. Decisions by the Commission on requests for preliminary relief
would be subject to the Commission's rules on rehearing.
Complainants could request preliminary relief in the form of a stay
or extension of time, or affirmative action. The standard for granting
extensions of time would be the good cause showing, found in section
385.2008 of the Commission's regulations.19 The standard
applicable to requests for stay would be that set forth in section 705
of the Administrative Procedure Act, 5 U.S.C. 705 (1988), i.e., the
stay will be granted if ``justice so requires.'' The standard for
granting affirmative preliminary relief would be that employed by the
courts for such relief, namely, the four part test described in the
NOPR--(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.20
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\19\ 18 CFR 385.2008 (1998).
\20\ See Virginia Petroleum Jobbers Ass'n. v. FPC, 259 F.2d 921,
925 (D.C. Cir. 1958).
---------------------------------------------------------------------------
I. Simplified Procedures for Small Controversies
The Commission currently has in place, and is codifying in this
Final Rule, Enforcement Hotline procedures. The Enforcement Hotline is
a resource particularly well suited for resolving disputes over small
amounts of money or seeking limited forms of relief. It provides a
forum for the Hotline staff through discussion and negotiation to
resolve disagreements brought informally to its attention. Many small
controversies have been concluded successfully through the Hotline
without the necessity of formal proceedings before the Commission, thus
saving the disputing parties much time, effort, and money. The
Commission, therefore, encourages parties with limited complaints to
seek relief in the first instance through the Enforcement Hotline. The
Commission also recognizes, however, that there will be instances where
the Hotline staff has not been able to bring about a resolution of a
dispute brought to it. For these cases the final rule is adopting a
procedure for complaints involving small controversies that will allow
them to be resolved more simply and expeditiously than more complicated
matters. This procedure will be codified in new section 385.218.
Although this procedure will be available to all complainants
regardless of size, it will primarily benefit small customers who would
typically have small amounts in dispute and who may not have the
financial resources available to pursue a formal complaint under the
regulations adopted here. A lack of financial resources should not be
an impediment to injured parties seeking relief before this Commission.
The adopted procedure is based, in part, on the recommendations of
the American Public Gas Association (APGA). The procedure will be
available if the amount in controversy is less than $100,000 and the
impact on other entities is de minimis. The procedure will be available
to all customers, not
[[Page 17095]]
just small customers. This answers the concerns of Enron Capital and
Trade, Indicated Shippers, NGSA, EEI, and CSW Operating Companies who
asserted that a small claims procedure should apply to small amounts as
well as small customers. In the Commission's view, the $100,000 ceiling
and the requirement of a de minimis impact on other customers should
alleviate parties' concerns that a complex complaint could be filed
under this procedure.
Complainants under the simplified procedure will be required to
submit a short form complaint which states (1) the name of the
complainant, (2) the name of the respondent, (3) a description of the
relationship to the respondent, for example, firm shipper, competitor,
etc., (4) the amount in controversy, (5) why the complaint will have a
de minimis impact on other entities, (6) the facts and circumstances
surrounding the complaint, including the legal or regulatory obligation
breached by the respondent, and (7) the requested relief. The
complainant is encouraged, but not required, to attach any relevant
documents to its complaint.
The complainant will be required to simultaneously serve the
complaint on the respondent and any other entity referenced in the
complaint. A notice of the complaint will be issued promptly, usually
within 2 days. The Commission is not codifying the notice period in the
final rule because, as with regular complaints, the date of issuance of
the notice of a complaint is not crucial to a speedy resolution of a
complaint proceeding because the time for filing answers, comments, and
interventions is calculated based on the date the complaint is filed
rather than the date of the notice.
Answers, interventions and comments will be required within 10 days
of the filing of the complaint. In cases where privileged treatment of
documents is requested by the complainant, answers, interventions, and
comments will be due within 20 days after the complaint is filed. This
will account for the time needed for parties to execute protective
agreements and receive the privileged information. It is the same
approach that is being used for regular complaints. Given the more
limited nature of complaints filed under the simplified procedure, the
10 day answer period should be sufficient. An answer to a complaint
will have to follow the current practice under Rule 213. A respondent
is encouraged, but not required, to provide any relevant documents.
APGA recommended that the Commission or a delegated official issue
an order within 30 days after the answer and an aggrieved party be able
to seek rehearing within 15 days after the decision. Because of the
less complex nature of complaints filed under the simplified procedure
it is likely that the Commission could issue an order more
expeditiously than in other types of complaint cases, perhaps within as
little as 30 days after an answer is filed. Requests for rehearing will
have to be filed in accordance with the relevant statute, to the extent
the statute provides for rehearing, and the Commission's regulations.
APGA suggested that the order issued not be published in the
official reporter and not have precedential value. The Commission will
not adopt such a proposal. It is important for the Commission to have a
body of precedent on which both the Commission and potential
complainants under the simplified procedure could rely.
J. Revisions to ADR Regulations
The final rule revises Rules 604, 605 and 606 to conform to the
1996 ADRA by eliminating the termination and opt-out provisions, and
providing that the confidentiality provisions of the 1996 ADRA pre-empt
the disclosure requirements of the FOIA.
A number of commenters (Wisconsin Distributor Group, INGAA,
Equilon, AOPL) assert that ADR settlements should not be subject to
notice and comments. A number of other commenters (Transmission
Dependent Utility Systems, Missouri PSC, Joint Consumer Advocates)
support notice and comment on ADR settlements. The final rule does not
revise the regulations to indicate that settlement agreements reached
through ADR are not subject to the notice and comment requirements of
Rule 602 unless the Commission takes affirmative action within 30 days.
The changes concerning the termination, opt-out, and
confidentiality provisions are to reflect the changes contained in the
1996 Administrative Dispute Resolution Act. The Commission will require
ADR settlements to be subject to notice and comment because, in many
instances, settlements entered into by regulated companies can affect
parties who were not part of the ADR process.
K. Codification of Hotline Procedures
To make the Enforcement Hotline easier to use, the final rule
codifies the current Hotline procedures in a new Section 1b.21.
A number of parties were concerned about parties' ability to make
anonymous complaints. The Commission emphasizes that the final rule is
not adopting any new procedures with respect to the Enforcement
Hotline, but has simply codified its longstanding practice.
The Commission declines to adopt the proposal offered by several
commenters that the Commission should separate Hotline functions from
prosecutorial functions of the Enforcement Section. Parties respond to
Hotline calls promptly because they know that Enforcement Staff may
institute investigations if valid complaints cannot be resolved
informally.
With respect to the issue of the availability of the Hotline to
West Coast parties, calls after business hours can be handled by voice
mail and the Hotline Staff will return the call the next business day.
The Commission has also established an Enforcement Hotline e-mail
address. It is [email protected].
L. Miscellaneous
EEI and the Utility Coalition stated that complaints should be able
to be filed by both public utilities and their customers. NRECA stated
that the Commission should not allow jurisdictional entities to file
complaints against nonjurisdictional entities. Transmission Dependent
Utility Systems stated that transmission customers should not be the
subject of complaints.
In their reply comments, APPA and Transmission Access Policy Study
Group asserted that the regulations proposed in the NOPR should not be
expanded to provide for FERC jurisdiction over complaints seeking
enforcement of filed rates against nonjurisdictional customers.
The Commission is not persuaded of the necessity of revising its
regulations in this regard at this time. The circumstances under which
the Commission has in the past and would in the future be requested to
address nonjurisdictional customer conduct would involve situations
such as a customer's failure to comply with the terms of public
utility's tariff, rate schedules, or contracts. The Commission believes
that the current approach taken by the regulations, which allows the
Commission to address such matters on a case by case basis, does not
need revision.
IV. Information Collection Statement
The following collection of information contained in this final
rule is being submitted to the Office of Management and Budget (OMB)
for review under Section 3507(d) of the
[[Page 17096]]
Paperwork Reduction Act of 1995.21 FERC identifies the
information provided under 18 CFR Part 385 as FERC-600. FERC-600
consolidates certain existing information collection requirements from
the various FERC program offices into one information collection number
and accounts for the incremental burden placed on persons filing under
the proposed regulations.
---------------------------------------------------------------------------
\21\ 44 U.S.C. 3507(d) (Supp. I 1995).
---------------------------------------------------------------------------
The Commission in the NOPR solicited comments on the Commission's
need for this information, whether the information will have practical
utility, the accuracy of the provided burden estimates, ways to enhance
the quality, utility, and clarity of the information to be collected,
and any suggested methods for minimizing the burden on persons filing
under the revised complaint procedures, including the use of automated
information techniques. No comments were received.
Estimated Annual Burden: The burden estimates for complying with
this final rule are as follows:
----------------------------------------------------------------------------------------------------------------
Number of Number of Hours per Total annual
Data collection respondents responses response hours
----------------------------------------------------------------------------------------------------------------
FERC-600.................................... 75 75 14 1,050
----------------------------------------------------------------------------------------------------------------
Total Annual Hours for Collection (Reporting + record keeping, if
appropriate) = 1,050.
Based on the Commission's experience with complaints, it is
estimated that about 75 filings per year will be made over the next
three years at a burden of 14 hours per filing, for a total annual
burden of 1,050 hours under the proposed regulations. The Commission's
expectation is that receiving more information in the complaint will
lessen the subsequent burden on parties and will shorten the time for
resolving a complaint. There is no annual reporting burden under the
current regulations.
The OMB regulations require OMB to approve certain information
collection requirements imposed by agency rule.22
Accordingly, pursuant to OMB regulations, the Commission provided
notice of its information collection to OMB. OMB did not comment or
take any action on the NOPR. Therefore, an OMB control number was not
given for this collection of information.
\22\ 5 CFR 1320.11
---------------------------------------------------------------------------
Title: FERC-600, Rules of Practice and Procedure
Action: Proposed Data Collection.
OMB Control No. 1902-____________
The respondent shall not be penalized for failure to respond to this
collection of information unless the collection of information displays
a valid OMB control number.
Respondents: Business or other for profit, including small
businesses.
Frequency of Responses: Infrequent.
Necessity of Information: The final rule requires persons filing
complaints and answers to complaints with the Commission to satisfy
certain informational requirements, and to provide supporting
documentation for the allegations in a complaint and answer to a
complaint. The information will allow the Commission to properly
evaluate a complaint and resolve it in a timely manner.
Internal Review: The Commission has assured itself, by means of its
internal review, that there is specific, objective support for the
burden estimates associated with the information collection
requirements. The Commission's Offices of General Counsel, Pipeline
Regulation, Electric Power Regulation, and Hydropower Licensing, will
use the data to make decisions with respect to the merits of a
complaint. This internal review determination involves among, other
things, an examination of adequacy of design, cost, reliability,
redundancy of the information to be required. These requirements
conform to the Commission's plan for efficient information collection,
communication, and management within the interstate natural gas
pipeline, oil pipeline, electric and hydroelectric industries.
Interested persons may obtain information on the reporting
requirements by contacting the following: Federal Energy Regulatory
Commission, 888 First Street, NE, Washington, DC 20426, [Attention:
Michael Miller, Office of the Chief Information Officer, Phone: (202)
208-1415, fax: (202) 208-2425, e-mail: [email protected]].
Questions concerning the collection of information and the
associated burden estimate should be sent to the contact listed above
and to the Office of Management and Budget, Office of Information and
Regulatory Affairs, Washington, DC, 20503. [Attention: Desk Officer for
the Federal Energy Regulatory Commission, phone: (202) 395-3087, fax:
(202) 395-7285.
V. Environmental Analysis
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.23 The
Commission has categorically excluded certain actions from these
requirements as not having a significant effect on the human
environment.24 The actions proposed to be taken here fall
within categorical exclusions in the Commission's regulations for rules
that are clarifying, corrective, or procedural, for information
gathering, analysis, and dissemination, and for sales, exchange, and
transportation of natural gas that requires no construction of
facilities.25 Therefore, an environmental assessment is
unnecessary and has not been prepared in this rulemaking.
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\23\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs. Preambles 1986-1990 para. 30,783 (1987).
\24\ 18 CFR 380.4.
\25\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).
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VI. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act (RFA) requires agencies to prepare
certain statements, descriptions and analyses of proposed rules that
will have a significant economic impact on a substantial number of
small entities.26 The Commission is not required to make
such analyses if a rule would not have such an effect.27
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\26\ 5 U.S.C. 601-612 (1994).
\27\ 5 U.S.C. 605(b)(1994).
---------------------------------------------------------------------------
The Commission does not believe that this rule would have such an
impact on small entities. The majority of complaints filed with the
Commission have been by companies who do not meet the RFA's definition
of a small entity whether or not they are under the Commission's
jurisdiction.28 Further, the final rule will speed up the
complaint process in general and in particular for those cases where
small business entities have been the subject
[[Page 17097]]
of an alleged detriment. This proposed rule will be beneficial to small
entities. Therefore, the Commission certifies that this rule will not
have a significant economic impact on a substantial number of small
entities.
---------------------------------------------------------------------------
\28\ 5 U.S.C. 601(3)(1994).
---------------------------------------------------------------------------
VII. Effective Date And Congressional Notification
The regulations are effective May 10, 1999. The Small Business
Regulatory Enforcement Fairness Act of 1996 requires agencies to report
to Congress on the promulgation of certain final rules prior to their
effective dates.29 That reporting requirement applies to
this Final Rule. The Commission has determined, with the concurrence of
the Administrator of the Office of Information and Regulatory Affairs
of OMB, that this rule is not a major rule as defined in section 351 of
the Small Business Regulatory Enforcement Fairness Act of 1996.
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\29\ 5 U.S.C. 801 (Supp. III 1997).
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List of Subjects
18 CFR Part 1b
Investigations.
18 CFR Part 343
Pipelines, Reporting and recordkeeping requirements.
18 CFR Part 385
Administrative practice and procedure, Electric power, Penalties,
Pipelines, Reporting and recordkeeping requirements.
By the Commission.
David P. Boergers,
Secretary.
In consideration of the foregoing, the Commission amends Parts 1b,
343, and 385, Chapter I, Title 18, Code of Federal Regulations, as set
forth below.
PART 1b--RULES RELATING TO INVESTIGATIONS
1. The authority citation for Part 1b is amended 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 46267.
2. In section 1b.1, new paragraph (d) is added to read as follows:
Sec. 1b.1 Definition.
* * * * *
(d) Enforcement Hotline is a forum in which to address quickly and
informally any matter within the Commission's jurisdiction concerning
natural gas pipelines, oil pipelines, electric utilities and
hydroelectric projects.
3. In Part 1b, new section 1b.21 is added to read as follows:
Sec. 1b.21 Enforcement hotline.
(a) The Hotline Staff may provide information to the public and
give informal staff opinions. The opinions given are not binding on the
General Counsel or the Commission.
(b) Any person may seek information or the informal resolution of a
dispute by calling or writing to the Hotline at the telephone number
and address in paragraph (f) of this section. The Hotline Staff will
informally seek information from the caller and any respondent, as
appropriate. The Hotline Staff will attempt to resolve disputes without
litigation or other formal proceedings. The Hotline Staff may not
resolve matters that are before the Commission in docketed proceedings.
(c) All information and documents obtained through the Hotline
Staff shall be treated as non-public by the Commission and its staff,
consistent with the provisions of section 1b.9 of this part.
(d) Calls to the Hotline may be made anonymously.
(e) Any person who contacts the Hotline is not precluded from
filing a formal action with the Commission if discussions assisted by
Hotline Staff are unsuccessful at resolving the matter. A caller may
terminate use of the Hotline procedure at any time.
(f) The Hotline may be reached by calling (202) 208-1390 or toll
free (877) 303-4340, by e-mail at [email protected], or writing to:
Enforcement Hotline, Federal Energy Regulatory Commission, 888 First
Street, N.E. Washington, D.C. 20426.
PART 343--PROCEDURAL RULES APPLICABLE TO OIL PIPELINE PROCEEDINGS
1. The authority citation for Part 343 continues to read as
follows:
Authority: 5 U.S.C. 571-583; 42 U.S.C. 7101-7352; 49 U.S.C.
60502; 49 App. U.S.C. 1-85.
2. In section 343.2 paragraph (c) is revised to read as follows:
Sec. 343.2 Requirements for filing interventions, protests and
complaints.
* * * * *
(c) Other requirements for filing protests or complaints--(1) Rates
established under Sec. 342.3 of this chapter. A protest or complaint
filed against a rate proposed or established pursuant to Sec. 342.3 of
this chapter must allege reasonable grounds for asserting that the rate
violates the applicable ceiling level, or that the rate increase is so
substantially in excess of the actual cost increases incurred by the
carrier that the rate is unjust and unreasonable, or that the rate
decrease is so substantially less than the actual cost decrease
incurred by the carrier that the rate is unjust and unreasonable. In
addition to meeting the requirements of the section, a complaint must
also comply with all the requirements of Sec. 385.206, except
Sec. 385.206(b)(1) and (2).
(2) Rates established under Sec. 342.4(c) of this chapter. A
protest or complaint filed against a rate proposed or established under
Sec. 342.4(c) of this chapter must allege reasonable grounds for
asserting that the rate is so substantially in excess of the actual
cost increases incurred by the carrier that the rate is unjust and
unreasonable. In addition to meeting the requirements of the section, a
complaint must also comply with all the requirements of Sec. 385.206,
except Sec. 385.206(b)(1) and (2).
(3) Non-rate matters. A protest or complaint filed against a
carrier's operations or practices, other than rates, must allege
reasonable grounds for asserting that the operations or practices
violate a provision of the Interstate Commerce Act, or of the
Commission's regulations. In addition to meeting the requirements of
this section, a complaint must also comply with the requirements of
Sec. 385.206.
3. In section 343.4 paragraph (a) is revised to read as follows:
Sec. 343.4 Procedures on complaints.
(a) Responses. The carrier must file an answer to a complaint filed
pursuant to section 13(1) of the Interstate Commerce Act within 20 days
after the filing of the complaint in accordance with Rule 206.
* * * * *
PART 385--RULES OF PRACTICE AND PROCEDURE
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; 31 U.S.C. 9701; 42 U.S.C. 7101-7352; 49
U.S.C. 60502; 49 App. U.S.C. 1-85.
2. In section 385.206, existing paragraph (b) is redesignated
paragraph (f) and is revised, existing paragraph (c) is redesignated as
paragraph (j), and new paragraphs (b), (c), (d), (e), (g), (h) and (i)
are added to read as follows:
Sec. 385.206 Complaints (Rule 206).
* * * * *
(b) Contents. A complaint must:
(1) Clearly identify the action or inaction which is alleged to
violate
[[Page 17098]]
applicable statutory standards or regulatory requirements;
(2) Explain how the action or inaction violates applicable
statutory standards or regulatory requirements;
(3) Set forth the business, commercial, economic or other issues
presented by the action or inaction as such relate to or affect the
complainant;
(4) Make a good faith effort to quantify the financial impact or
burden (if any) created for the complainant as a result of the action
or inaction;
(5) Indicate the practical, operational, or other nonfinancial
impacts imposed as a result of the action or inaction, including, where
applicable, the environmental, safety or reliability impacts of the
action or inaction;
(6) State whether the issues presented are pending in an existing
Commission proceeding or a proceeding in any other forum in which the
complainant is a party, and if so, provide an explanation why timely
resolution cannot be achieved in that forum;
(7) State the specific relief or remedy requested, including any
request for stay, extension of time, or other preliminary relief , and
in cases seeking other preliminary relief, a detailed explanation of
why such relief is required addressing:
(i) The likelihood of success on the merits;
(ii) The nature and extent of the harm if preliminary relief is
denied;
(iii) The balance of the relevant interests, i.e., the hardship to
nonmovant if preliminary relief is granted contrasted with the hardship
to the movant if preliminary relief is denied; and
(iv) The effect, if any, of the decision on preliminary relief on
the public interest;
(8) Include all documents that support the facts in the complaint
in possession of, or otherwise attainable by, the complainant,
including, but not limited to, contracts, affidavits, and testimony;
(9) State
(i) Whether the Enforcement Hotline, Dispute Resolution Service,
tariff-based dispute resolution mechanisms, or other informal
procedures were used;
(ii) Whether the complainant believes that alternative dispute
resolution (ADR) under the Commission's supervision could successfully
resolve the complaint;
(iii) What types of ADR procedures could be used; and
(iv) Any process that has been agreed on for resolving the
complaint.
(10) Include a form of notice suitable for publication in the
Federal Register and submit a copy of the notice on a separate 3\1/2\
inch diskette in ASCII format;
(11) Explain with respect to requests for Fast Track processing
pursuant to section 385.206(h), why the standard processes will not be
adequate for expeditiously resolving the complaint.
(c) Service. Any person filing a complaint must serve a copy of the
complaint on the respondent, affected regulatory agencies, and others
the complainant reasonably knows may be expected to be affected by the
complaint. Service must be simultaneous with filing at the Commission
for respondents and affected entities in the same metropolitan area as
the complainant. Simultaneous or overnight service is permissible for
respondents and affected entities outside the complainant's
metropolitan area. Simultaneous service can be accomplished by
electronic mail, facsimile, express delivery, or messenger.
(d) Notice. Public notice of the complaint will be issued by the
Commission.
(e) Privileged Treatment. (1) If a complainant seeks privileged
treatment for any documents submitted with the complaint, the
complainant must submit, with its complaint, a request for privileged
treatment of documents and information under section 388.112 of this
chapter and a proposed form of protective agreement. In the event the
complainant requests privileged treatment under section 388.112 of this
chapter, it must file the original and three copies of its complaint
with the information for which privileged treatment is sought and 11
copies of the pleading without the information for which privileged
treatment is sought. The original and three copies must be clearly
identified as containing information for which privileged treatment is
sought.
(2) A complainant must provide a copy of its complaint without the
privileged information and its proposed form of protective agreement to
each entity that is to be served pursuant to section 385.206(c).
(3) An interested person must make a written request to the
complainant for a copy of the complete complaint within 5 days after
the filing of the complaint. The request must include an executed copy
of the protective agreement. Any person may file an objection to the
proposed form of protective agreement.
(4) A complainant must provide a copy of the complete complaint to
the requesting person within 5 days after receipt of the written
request that is accompanied by an executed copy of the protective
agreement.
(f) Answers, interventions and comments. Unless otherwise ordered
by the Commission, answers, interventions, and comments to a complaint
must be filed within 20 days after the complaint is filed. In cases
where the complainant requests privileged treatment for information in
its complaint, answers, interventions, and comments are due within 30
days after the complaint is filed. In the event there is an objection
to the protective agreement, the Commission will establish when answers
will be due.
(g) Complaint Resolution Paths. (1) One of the following procedures
may be used to resolve complaints:
(i) The Commission may assign a case to be resolved through
alternative dispute resolution procedures in accordance with sections
385.604-385.606, in cases where the affected parties consent, or the
Commission may assign the case to a settlement judge in accordance with
section 385.603;
(ii) The Commission may issue an order on the merits based upon the
pleadings;
(iii) The Commission may establish a hearing before an ALJ;
(2) The Commission, or an ALJ, may act on requests for preliminary
relief. In cases where the ALJ rules on a request for preliminary
relief, an appeal to the Commission may be filed within 7 days of the
ruling.
(h) Fast Track Processing. (1) The Commission may resolve
complaints using Fast Track procedures if the complaint requires
expeditious resolution. 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 preliminary relief by the Commission or an ALJ.
(2) A complainant may request Fast Track processing of a complaint
by including such a request in its complaint, captioning the complaint
in bold type face ``COMPLAINT REQUESTING FAST TRACK PROCESSING,'' and
explaining why expedition is necessary as required by section
385.206(b)(11).
(3) Based on an assessment of the need for expedition, the period
for filing answers, interventions and comments to a complaint
requesting Fast Track processing may be shortened by the Commission
from the time provided in section 385.206(f).
(4) After the answer is filed, the Commission will issue promptly
an order specifying the procedure and any schedule to be followed.
(i) Simplified Procedure for Small Controversies. A simplified
procedure for complaints involving small
[[Page 17099]]
controversies is found in section 385.218 of this subpart.
3. In section 385.213 paragraphs (c)(4) and (5) are added to read
as follows:
Sec. 385.213 Answer (Rule 213).
* * * * *
(c) * * *
(4) An answer to a complaint must include all documents that
support the facts in the answer in possession of, or otherwise
attainable by, the respondent, including, but not limited to,
contracts, affidavits, and testimony. An answer is also required to
describe the formal or consensual process it proposes for resolving the
complaint.
(5)(i) A respondent must submit with its answer any request for
privileged treatment of documents and information under Sec. 388.112 of
this chapter and a proposed form of protective agreement. In the event
the respondent requests privileged treatment under Sec. 388.112 of this
chapter, it must file the original and three copies of its answer with
the information for which privileged treatment is sought and 11 copies
of the pleading without the information for which privileged treatment
is sought. The original and three copies must be clearly identified as
containing information for which privileged treatment is sought.
(ii) A respondent must provide a copy of its answer without the
privileged information and its proposed form of protective agreement to
each entity that has been served pursuant to Sec. 385.206 (c).
(iii) An interested person must make a written request to the
respondent for a copy of the complete answer within 5 days after the
filing of the answer. The request must include an executed copy of the
protective agreement. Any person may file an objection to the proposed
form of protective agreement.
(iv) A respondent must provide a copy of the complete answer to the
requesting person within 5 days after receipt of the written request
and an executed copy of the protective agreement.
* * * * *
4. New section 385.218 is added to read as follows:
Sec. 385.218 Simplified procedure for complaints involving small
controversies (Rule 218).
(a) Eligibility. The procedures under this section are available to
complainants if the amount in controversy is less than $100,000 and the
impact on other entities is de minimis.
(b) Contents. A complaint filed under this section must contain:
(1) The name of the complainant;
(2) The name of the respondent;
(3) A description of the relationship to the respondent;
(4) The amount in controversy;
(5) A statement why the complaint will have a de minimis impact on
other entities;
(6) The facts and circumstances surrounding the complaint,
including the legal or regulatory obligation breached by the
respondent; and
(7) The requested relief.
(c) Service. The complainant is required to simultaneously serve
the complaint on the respondent and any other entity referenced in the
complaint.
(d) Notice. Public notice of the complaint will be issued by the
Commission.
(e) Answers, Interventions and Comments. (1) An answer to a
complaint is required to conform to the requirements of
Sec. 385.213(c)(1), (2), and (3).
(2) Answers, interventions and comments must be filed within 10
days after the complaint is filed. In cases where the complainant
requests privileged treatment for information in its complaint,
answers, interventions, and comments must be filed within 20 days after
the complaint is filed. In the event there is an objection to the
protective agreement, the Commission will establish when answers,
interventions, and comments are due.
(f) Privileged Treatment. If a complainant seeks privileged
treatment for any documents submitted with the complaint, a complainant
must use the procedures described in section 385.206(e). If a
respondent seeks privileged treatment for any documents submitted with
the answer, a respondent must use the procedures described in section
385.213(c)(5).
5. In section 385.604, paragraph (d)(3) is removed, paragraphs
(d)(4), (d)(5), and (d)(6) are redesignated paragraphs (d)(3), (d)(4),
and (d)(5), paragraph (g) is removed, and paragraph (d)(2) is revised
to read as follows:
Sec. 385.604 Alternative means of dispute resolution (Rule 604).
* * * * *
(d) * * *
(2) For matters set for hearing under subpart E of this part, a
proposal to use alternative means of dispute resolution must be filed
with the presiding administrative law judge.
* * * * *
6. In section 385.605 paragraph (f) is removed, and paragraphs
(a)(4) and (e)(2) are revised to read as follows:
Sec. 385.605 Arbitration (Rule 605).
(a) * * *
(4) An arbitration proceeding under this rule may be monitored as
provided in Rule 604(f).
* * * * *
(e) * * *
(2) The award in an arbitration proceeding will become final 30
days after it is served on all parties.
* * * * *
6. In section 385.606 paragraph (d) is redesignated paragraph
(d)(1) and paragraphs (d)(2) and (l) are added:
Sec. 385.606 Confidentiality in dispute resolution proceedings (Rule
606).
* * * * *
(d) * * *
(2) To qualify for the exemption established under paragraph (l) of
this section, an alternative confidential procedure under this
paragraph may not provide for less disclosure than confidential
procedures otherwise provided under this rule.
* * * * *
(l) A dispute resolution communication that may not be disclosed
under this rule shall also be exempt from disclosure under 5 U.S.C.
552(b)(3).
Note--The following appendix will not appear in the Code of
Federal Regulations.
Appendix--List of Commenters
Adirondack Mountain Club
American Electric Power System
American Public Gas Association
American Public Power Association and Transmission Access Policy
Study Group
American Arbitration Association
ANR Pipeline Company and Colorado Interstate Gas Company
Association of Oil Pipe Lines
Canadian Association of Petroleum Producers and Alberta Dept. of
Energy
Cenex Pipeline, LLC
Chevron Products Company
Chevron Pipe Line Company
Columbia Gas Transmission Corporation and Columbia Gulf Transmission
Company
Consumers Energy Company and Michigan Gas Storage Company
CSW Operating Companies
Duke Energy Companies
Dynegy Inc.
Edison Electric Institute
El Paso Energy Corporation Interstate Pipelines
Electric Power Supply Association
Enron Capital & Trade Resources Corp.
Enron Interstate Pipelines
Entergy Service, Inc.
Equilon Pipeline Company LLC
Express Pipeline Partnership
Fertilizer Institute
Florida Cities
Independent Petroleum Association of America
Indicated Shippers
Interstate Natural Gas Association of America
Joint Consumer Advocates
Keyspan Energy
[[Page 17100]]
Koch Gateway Pipeline Company
Lakehead Pipe Line Company, L.P.
Missouri Public Service Commission
Mobil Pipe Line Company
National Rural Electric Cooperative Association
Natural Gas Supply Association
New York State Electric & Gas Corporation
Oil Pipeline Shipper Group
Piedmont Natural Gas Company, Inc.
Pipeline Customer Coalition
ProLiance Energy, LLC
Public Utilities Commission of the State of California
Railroad Commission of Texas
Refinery Holding Company, L.P.
Southern Companies
TAPS Carriers
Transmission Dependent Utility Systems
United States Department of Agriculture--Rural Utilities Service
Utility Coalition
Williams Companies, Inc.
Wisconsin Distributor Group and Northern Distributor Group
[FR Doc. 99-8518 Filed 4-7-99; 8:45 am]
BILLING CODE 6717-01-P