

[Federal Register: March 23, 2006 (Volume 71, Number 56)]
[Rules and Regulations]               
[Page 14640-14642]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23mr06-5]                         

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 385

[Docket No. RM05-33-001]

 
Revision of Rules of Practice and Procedure Regarding Issue 
Identification

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
revising its regulations regarding pleadings. The regulations are 
revised to eliminate, in all pleadings except requests for rehearing, a 
recent formatting requirement that the pleadings contain a section 
entitled ``Statement of Issues.''

DATES: Effective Date: The rule will become effective March 23, 2006.

FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the 
General Counsel, GC-10, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426. 202-502-8521.

SUPPLEMENTARY INFORMATION:

Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead Brownell, 
and Suedeen G. Kelly; Order No. 663-A; Final Rule; Issued March 17, 
2006

    1. The Federal Energy Regulatory Commission (Commission) is 
revising its rules of practice and procedure to eliminate for all 
pleadings, except requests for rehearing, a recent change in Order No. 
663 requiring that any issues a filer wishes the Commission to address 
be clearly set forth in a section of the pleading entitled ``Statement 
of

[[Page 14641]]

Issues'' and that ``any issue not so listed will be deemed waived.'' 
\1\ Several months of experience under the new rule has indicated that 
it is not necessary in the context of all pleadings; however the 
Commission is retaining the requirement as it applies to Rule 713, 
request for rehearing.
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    \1\ Revision of Rules of Practice and Procedure Regarding Issue 
Identification, Order No. 663, 70 FR 55723 at P 5 (September 23, 
2005), III FERC Stats. & Regs. ] 31,193 (September 16, 2005).
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    2. In Order No. 663, the Commission stated that it believed the 
changes to 18 CFR 385.203(a)(7) and 385.713 would benefit both the 
Commission and participants by providing certainty with respect to 
issues being raised. In the meantime, the requirement for a ``Statement 
of Issues'' section has not proven particularly helpful for a number of 
common pleadings, and has led to confusion on the part of filers. For 
instance, many motions to intervene do not contest specific issues in 
the pleadings. Filers in those types of situations have puzzled over 
what information, if any, belongs in a Statement of Issues for their 
motion to intervene. To eliminate this confusion and simplify the 
pleadings format, the requirement for a separate Statement of Issues 
section is being eliminated from Rule 203. Parties will not be 
prejudiced by this formatting change, given that Sec.  385.203(a)(7) 
will maintain its original requirement that pleadings include, as 
appropriate, ``[t]he position taken by the participant filing any 
pleading, to the extent known when the pleading is filed, and the basis 
in fact and law for such position. * * *'' This will provide adequate 
notice for the issues raised in the pleadings. This rule deletes the 
following language from Sec.  385.203(a)(7): ``including a separate 
section entitled ``Statement of Issues,'' listing each issue presented 
to the Commission in a separately enumerated paragraph that includes 
representative Commission and court precedent on which the participant 
is relying; any issue not so listed will be deemed waived.''
    3. However, the Commission finds that a ``Statement of Issues'' 
requirement is necessary in the context of requests for rehearing. 
Requiring the party seeking rehearing to specify each issue being 
raised in a separate paragraph benefits the Commission by clarifying 
the issues it needs to address on rehearing. More importantly, it 
benefits parties seeking rehearing. As noted in Order No. 663, both the 
Natural Gas Act and Federal Power Act mandate that issues be raised on 
rehearing as a jurisdictional prerequisite to obtaining judicial review 
of a Commission order.\2\ Order No. 663 at P 4. Courts have found no 
jurisdiction to address issues that were not raised on rehearing.\3\ 
Therefore, the requirement for a separate section specifically 
enumerating issues raised on rehearing benefits parties seeking 
rehearing because it prevents them from having cases denied on appeal 
for failure to clearly raise the issue at the administrative level.
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    \2\ Section 19(b) of the Natural Gas Act, 15 U.S.C. 717r(b), 
states that ``No objection to the order of the Commission shall be 
considered by the court unless such objection shall have been urged 
before the Commission in the application for rehearing unless there 
is reasonable ground for failure to do so.'' Section 313(a) of the 
Federal Power Act, 16 U.S.C. 825l(a) states that ``The application 
for rehearing shall set forth specifically the ground or grounds 
upon which such application is based. * * * No proceeding to review 
any orders of the Commission shall be brought by any person unless 
such person shall have made application to the Commission for a 
rehearing thereon.''
    \3\ See DTE Energy Co. v. FERC, 394 F.3d 954, 960 (DC Cir. 2005) 
(finding petitioner's failure to seek rehearing ``fatal'' to its 
court challenge, noting that ``[t]he mandatory requirement of filing 
a petition for rehearing is designed to afford the Commission an 
opportunity to invoke its expertise or to correct any errors prior 
to judicial review''); Fuel Safe Washington v. FERC, 389 F.3d 1313 
(10th Cir. 2004) (``the presentation of a ground of objection in an 
application for rehearing by the Commission is an indispensable 
prerequisite to the exercise of power of judicial review of the 
order on such ground,'' quoting Pan Am Petroleum Corp. v. FPC, 268 
F.2d 827, 830 (10th Cir. 1959)).
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    4. Moreover, requiring all issues to be set forth with specificity 
in separately enumerated paragraphs helps to ensure that the Commission 
will adequately address the issues raised in the rehearing request for 
purposes of judicial review. As noted in Order No. 663, there are 
numerous instances where appeals were denied because the court found 
that a petitioner's position was not clearly articulated before the 
Commission.\4\
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    \4\ See, e.g., Intermountain Municipal Gas v. FERC, 326 F.3d 
1282 at 1285 (DC Cir. 2003) (finding no jurisdiction because ``so 
general and vague a statement'' in a petition for rehearing fails to 
meet the requirement in section 19(b) of the Natural Gas Act, which 
requires that objections be ```specifically urged,''' quoting 
Louisiana Interstate Gas Corp. v. FERC, 962 F.2d 37, 41 (DC Cir. 
1992)); California Dep't of Water Resources v. FERC, 341 F.3d 906, 
911 (9th Cir. 2003) (issue not preserved for review where petitioner 
``raised the issue in a single sentence at the end of an unrelated 
section of its request for rehearing, without citing the statutory 
language it now urges [the court] to consider''), reh'g en banc 
denied, 361 F.3d 517 (2004); California Dep't of Water v. FERC, 306 
F.3d 1121, 1126 (DC Cir. 2002) (court dismisses petition for 
judicial review because issue raised in a footnote ``does not 
properly present, and thus does not preserve, the issue the 
intervenors wish to argue''); and Coalition for the Fair and 
Equitable Regulation of Docks on the Lake of the Ozarks v. FERC, 297 
F.3d 771, 777 (8th Cir. 2002) (declining to find jurisdiction where 
petitioner's ``brief does not show that it raised the * * * 
arguments in any recognizable form''), reh'g en banc denied, 2002 
U.S. App. LEXIS 21769 (8th Cir. Oct. 17, 2002), cert. denied, 538 
U.S. 960 (2003).
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    5. This final rule also amends the language in Rule 713 to account 
for the now-eliminated requirement in Rule 203(a) to include a 
``Statement of Issues'' section. Current Rule 713 states that requests 
for rehearing must ``[c]onform to the requirements in Rule 203(a), 
which are applicable to pleadings, including, but not limited to, the 
requirement for a separate section entitled `Statement of Issues,' 
listing each issue in a separately enumerated paragraph that includes 
representative Commission and court precedent on which the party is 
relying; and * * *.'' \5\ This section is being revised to state that 
requests for rehearing must ``[c]onform to the requirements in Rule 
203(a), which are applicable to pleadings, and, in addition, include a 
separate section entitled `Statement of Issues,' listing each issue in 
a separately enumerated paragraph that includes representative 
Commission and court precedent on which the party is relying; any issue 
not so listed will be deemed waived; and * * *.''
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    \5\ 18 CFR 385.713(c)(2), as modified by Order No. 663, P 6.
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    6. The rehearing rule at Sec.  385.713(c)(2) continues to specify 
that issues not so raised will be deemed to have been waived. As noted 
in Order No. 663 at P 7, this is consistent with existing Rule 2001, 
which states that filings that fail to meet applicable statutes, rules 
or orders may be rejected in full or all or part of the filing may be 
stricken.\6\
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    \6\ 18 CFR 385.2001(b)(2005).
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    7. The revisions adopted in this rule are more appropriately 
characterized as a clarification of the Commission's rules rather than 
a change in Commission policy or a significant revision of the existing 
rules of practice and procedure. Rule 713, prior to the enactment of 
Order No. 663, required parties filing for rehearing to ``state 
concisely the alleged error in the final decision or final order.'' 
However, Rule 713 was neither adhered to uniformly nor applied in 
pleadings consistently. Therefore, we are requiring that all rehearing 
requests include a separately designated section and an itemized and 
enumerated Statement of Issues, which will help eliminate ambiguities 
among parties, the Commission, and the reviewing courts, as discussed 
above.
    8. The changes that are made in this rule eliminate one requirement 
in Rule 203(a)(7) and make necessary amendments to Rule 713(c)(2) to 
reflect the change in Rule 203(a)(7).

[[Page 14642]]

Information Collection Statement

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

Environmental Analysis

    10. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\7\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment. Included in the exclusion are rules that are clarifying, 
corrective, or procedural that do not substantially change the effect 
of the regulations being amended. This rule is procedural in nature 
and, therefore, falls under this exception; consequently, no 
environmental consideration is necessary.
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    \7\ Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (December 17, 1987), FERC Stats. & 
Regs. Preambles 1986-1990 ] 30,783 (1987).
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Regulatory Flexibility Act Certification

    11. The Regulatory Flexibility Act of 1980 (RFA) \8\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Commission is not required to make such analysis if a rule would 
not have such an effect. The Commission certifies that this rule will 
not have such an impact on small entities as it merely clarifies 
existing requirements. An analysis under the RFA, therefore, is not 
required.
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    \8\ 5 U.S.C. 601-612 (1994).
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Document Availability

    12. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) under ``What's 

New'' and in FERC's Public Reference Room during normal business hours 
(8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, 
Washington, DC 20426.
    13. From FERC's Home Page on the Internet, this information is 
available in the Commission's document management system, eLibrary. The 
full text of this document is available on eLibrary in PDF and 
Microsoft Word format for viewing, printing, and/or downloading. To 
access this document in eLibrary, type the docket number excluding the 
last three digits of this document in the docket number field.
    14. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours. For assistance, please contact the 
Commission's Online Support at 1-866-208-3673 (toll free) or 202-502-
6652 (e-mail at FERCOnlineSupport@ferc.gov) or the Public Reference 
Room at (202) 502-8371, TTY (202) 502-8659. E-Mail the Public Reference 
Room at public.referenceroom@ferc.gov.

Effective Date

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

List of Subjects in 18 CFR Part 385

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

    By the Commission.
Magalie R. Salas,
Secretary.

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

PART 385--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 385 continues to read as follows:

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717z; 3301-3432; 16 
U.S.C. 791a-825r; 2601-2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 9701; 
42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C. 1085 (1988).

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


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

    (a) * * *
    (7) The position taken by the participant filing any pleading, to 
the extent known when the pleading is filed, and the basis in fact and 
law for such position;
* * * * *

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


Sec.  385.713  Request for rehearing (Rule 713).

* * * * *
    (c) * * *
    (2) Conform to the requirements in Rule 203(a), which are 
applicable to pleadings, and, in addition, include a separate section 
entitled ``Statement of Issues,'' listing each issue in a separately 
enumerated paragraph that includes representative Commission and court 
precedent on which the party is relying; any issue not so listed will 
be deemed waived; and
* * * * *
[FR Doc. 06-2800 Filed 3-22-06; 8:45 am]

BILLING CODE 6717-01-P
