
[Federal Register: May 21, 2008 (Volume 73, Number 99)]
[Rules and Regulations]               
[Page 29431-29433]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my08-11]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 1b

[Docket No. RM08-10-000; Order No. 711]

 
Submissions to the Commission Upon Staff Intention to Seek an 
Order To Show Cause

Issued May 15, 2008.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Commission is amending its regulations to expand and 
clarify the right of an entity to submit a written response to the 
Commission in the event staff intends to recommend that the Commission 
initiate a proceeding governed by 18 CFR Part 385, or make the entity a 
defendant in a civil action to be brought by the Commission. Subjects 
of investigations currently have the right under 18 CFR 1b.19 to be 
informed in the latter instance, but only in the event staff finds it 
appropriate and in the public interest. The amendment would grant that 
right, for both types of proceedings, in all cases except those in 
which extraordinary circumstances make prompt Commission review 
necessary to prevent detriment to the public interest or irreparable 
harm. The amendment also clarifies the timing requirements for such 
submissions. These changes codify current staff practice regarding 
recommendations for orders to show cause, and will allow subjects of 
investigations a fuller opportunity to present their positions to the 
Commission.

DATES: Effective Date: The rule will become effective immediately upon 
publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Kathryn Kuhlen, Office of Enforcement, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 502-6855.

SUPPLEMENTARY INFORMATION: 
Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. 
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.

Final Rule

Issued May 15, 2008.

I. Background

    1. The procedural rule set forth in 18 CFR 1b.19 (2007) governs the 
procedures to be followed regarding submissions to the Commission in 
the event Commission staff recommends that the subject of an 
investigation be made a defendant in a civil action to be brought by 
the Commission. Before enactment of the Energy Policy Act of 2005,\1\ 
this provision rarely came into play, as most investigations have been 
resolved either through closure without further action or by 
settlement. Indeed, at a recent technical conference on enforcement 
held by the Commission,\2\ it appeared that many energy practitioners 
were unaware of the submission process set forth in this regulation, 
and expressed a desire for more clarity regarding the due process 
rights of the subjects of staff investigations.
---------------------------------------------------------------------------

    \1\ Energy Policy Act of 2005, Public Law No. 109-58, 119 Stat. 
594 (2005) (EPAct 2005).
    \2\ Conference on Enforcement Policy, Docket No. AD07-13-000, 
Nov. 16, 2007.
---------------------------------------------------------------------------

    2. In light of the comments at the technical conference and the 
need to ensure due process in our investigations, the Commission has 
reexamined 18 CFR 1b.19 and determined to clarify its provisions and 
expand the procedural rights it provides.
    3. The current language in the regulation provides that staff need 
only advise the subject of an investigation of staff's intent to seek 
an order to show cause in the event staff determines that it is 
appropriate in the interest of the proper administration of the law to 
do so. However, it is staff's practice to advise the subject of an 
investigation of such intent in all cases, except where exigent 
circumstances, such as the danger of irreparable harm, require prompt 
Commission action. Therefore, we believe it appropriate to codify the 
current practice and provide subjects the right to be informed of 
staff's intent, with the concomitant ability to present a response to 
be provided to the Commission for its consideration along with staff's 
recommendation.

II. Commission Determination

    4. This Final Rule amends 18 CFR 1b.19 to provide that in the event 
Commission staff intends to recommend to the Commission that it 
initiate a proceeding under 18 CFR Part 385 against the subject of an 
investigation being conducted under the provisions of 18 CFR Part 1b, 
or to recommend that

[[Page 29432]]

the Commission make the subject of an investigation a defendant in a 
civil action to be brought by the Commission, the subject of that 
investigation shall have the right, in all but extraordinary 
circumstances, to be so informed and to have the opportunity to provide 
the Commission with a written non-public response to staff's 
recommendation. The Final Rule also provides that staff's notification 
to the subject of its right to make a response shall provide sufficient 
information and facts to enable the subject to make such a response, 
and further provides that within 30 days of such notice, the subject 
may submit its response to staff, which response staff will submit to 
the Commission together with its own recommendation.
    5. Section 1b.19 currently provides that staff may inform the 
subject of an investigation \3\ of staff's intent to recommend that the 
subject be made a defendant in a civil proceeding to be brought by the 
Commission only when staff determines it is appropriate in the interest 
of the proper administration of the law. However, as noted above, it is 
staff's practice to notify the subject of an investigation when it 
determines to seek an order to show cause in all situations except 
where exigent circumstances make immediate consideration by the 
Commission necessary. The current regulation also does not specify the 
time period by which the subject is to provide its response, providing 
instead that staff shall inform the subject of the due date. The 
amended regulation codifies staff's current practice regarding 
notification and will provide subjects of an investigation with a 
fuller opportunity to present their positions to the Commission.
---------------------------------------------------------------------------

    \3\ The current regulation refers to the subject as a 
``person.'' The amended regulation refers to the subject with the 
broader term ``entity,'' consistent with the meaning of that term as 
used in 18 CFR Part 1c.
---------------------------------------------------------------------------

III. Information Collection Statement

    6. The Office of Management and Budget's (OMB) regulations require 
that OMB approve certain information collection requirements imposed by 
agency rule.\4\ This Final Rule contains no information reporting 
requirements, and the filings permitted under the regulation are 
collected during the course of an investigation and, as such, are 
exempt from the provisions of the Paperwork Reduction Act.\5\
---------------------------------------------------------------------------

    \4\ 5 CFR Part 1320.
    \5\ 44 U.S.C. 3518(c); 5 CFR 1320.4.
---------------------------------------------------------------------------

IV. Environmental Analysis

    7. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\6\ Issuance 
of this Final Rule does not represent a major federal action having a 
significant adverse effect on the human environment under the 
Commission's regulations implementing the National Environmental Policy 
Act.\7\ Part 380 of the Commission's regulations lists exemptions to 
the requirement that an Environmental Analysis or Environmental Impact 
Statement be done. Included is an exemption for procedural, ministerial 
or internal administrative actions.\8\ This rulemaking is exempt under 
that provision.
---------------------------------------------------------------------------

    \6\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
    \7\ Order No. 486, 52 FR 47897 (Dec. 17, 1987); FERC Stats. & 
Regs., Regulations Preambles 1986-1990 ] 30,783 (Dec. 10, 1984) 
(codified at 18 CFR Part 380).
    \8\ 18 CFR 380.4(1) and (5).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act Certification

    8. The Regulatory Flexibility Act of 1980 \9\ generally requires a 
description and analysis of final rules that will have significant 
economic impact on a substantial number of small entities. This final 
rule concerns a matter of internal agency procedure and the Commission 
therefore certifies that it will not have such an impact. An analysis 
under the RFA is not required.
---------------------------------------------------------------------------

    \9\ 5 U.S.C. 601-612 (RFA).
---------------------------------------------------------------------------

VI. Document Availability

    9. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426.
    10. From FERC's Home Page on the Internet, this information is 
available on eLibrary. The full text of this document is available on 
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or 
downloading. To access this document in eLibrary, type the docket 
number excluding the last three digits of this document in the docket 
number field.
    11. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours from FERC Online Support at 202-502-
6652 (toll free at 1-866-208-3676) or e-mail at 
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.

VII. Effective Date

    12. These regulations are effective immediately upon publication in 
the Federal Register. In accordance with 5 U.S.C. 553(d)(3), the 
Commission finds that good cause exists to make this Final Rule 
effective immediately. It concerns a matter of administrative 
procedures and expands rather than diminishes the rights of persons 
appearing before the Commission. There is therefore no reason to make 
it effective at a later time.
    13. The provisions of 5 U.S.C. 801 regarding Congressional review 
of Final Rules do not apply to this Final Rule, because the rule 
concerns agency procedure and practice and will not substantially 
affect the rights of non-agency parties, other than to expand the 
ability of subjects of an investigation to present their views to the 
Commission before deliberations by the Commission on whether to 
initiate a proceeding governed by 18 CFR Part 385 against them.
    14. The Commission is issuing this as a final rule without a period 
for public comment. Under 5 U.S.C. 553(b), notice and comment 
procedures are unnecessary where a rulemaking concerns only agency 
procedure and practice, or where the agency finds that notice and 
comment is unnecessary. This rule concerns only matters of agency 
procedure and will not significantly affect regulated entities or the 
general public, other than to expand the rights of subjects of an 
investigation to make certain submissions to the Commission.

List of Subjects in 18 CFR Part 1b

    Rules relating to Investigations.

    By the Commission.
Kimberly D. Bose,
Secretary.

0
In consideration of the foregoing, the Commission amends Section 1b.19, 
Part 1b, Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 1b--RULES RELATING TO INVESTIGATIONS

0
1. The authority citation for Part 1b continues to read as follows:

    Authority: 15 U.S.C. 717 et seq.; 16 U.S.C. 792 et seq.; 49 
U.S.C. 60502; 49 A.P.U.S.C. 1-85; 42 U.S.C. 7101-7352; E.O. 12009, 
42 FR 46297.


[[Page 29433]]



0
2. Section 1b.19 is revised to read as follows:


Sec.  1b.19  Submissions.

    In the event the Investigating Officer determines to recommend to 
the Commission that an entity be made the subject of a proceeding 
governed by part 385 of this chapter, or that an entity be made a 
defendant in a civil action to be brought by the Commission, the 
Investigating Officer shall, unless extraordinary circumstances make 
prompt Commission review necessary in order to prevent detriment to the 
public interest or irreparable harm, notify the entity that the 
Investigating Officer intends to make such a recommendation. Such 
notice shall provide sufficient information and facts to enable the 
entity to provide a response. Within 30 days of such notice, the entity 
may submit to the Investigating Officer a non-public response, which 
may consist of a statement of fact, argument, and/or memorandum of law, 
with such supporting documentation as the entity chooses, showing why a 
proceeding governed by part 385 of this chapter should not be 
instituted against said entity, or why said entity should not be made a 
defendant in a civil action brought by the Commission. If the response 
is submitted by the due date, the Investigating Officer shall present 
it to the Commission together with the Investigating Officer's 
recommendation. The Commission will consider both the Investigating 
Officer's recommendation and the entity's timely response in deciding 
whether to take further action.

[FR Doc. E8-11315 Filed 5-20-08; 8:45 am]

BILLING CODE 6717-01-P
