[Federal Register Volume 64, Number 154 (Wednesday, August 11, 1999)]
[Rules and Regulations]
[Pages 43600-43608]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19885]
[[Page 43600]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 343 and 385
[Docket No. RM98-13-001; Order No. 602-A]
Complaint Procedures
Issued: July 28, 1999.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule; order on rehearing and clarification.
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SUMMARY: On March 31, 1999, the Federal Energy Regulatory Commission
(Commission) issued a final rule (Order No. 602) 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. A number of requests
for rehearing and clarification of the final rule were filed. The
general framework established by the complaint rule remains the same.
The order does, however, grant rehearing and clarification in instances
where the suggested changes will improve the new procedures and
contribute to ensuring that the process allows the resolution of
complaints in the most suitable manner. The order, among other things,
clarified the types of relief that may be granted with respect to
complaints, modified certain procedures concerning the treatment of
privileged information in complaints and answers, modified the
requirement concerning simultaneous service of complaints, and reduced
the scope of documentation required in an answer. With respect to
changes made to the procedural rules applicable to oil pipeline
proceedings, the order clarifies that the Commission will be flexible
in its application of the complaint procedures to oil pipelines. The
order also states that the Commission did not make any changes to the
substantive regulations or policies governing oil pipeline complaints.
DATES: The regulations are effective September 10, 1999.
ADDRESSES: Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT: David Faerberg, Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 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 from November
14, 1994, to the present. CIPS can be accessed via Internet through
FERC's Home Page (http://www.ferc.fed.us) using the CIPS Link or the
Energy Information Online icon. Documents will be available on CIPS in
ASCII and WordPerfect 6.1. User assistance is available at 202-208-2474
or by E-mail to cips.master@ferc.fed.us.
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 rimsmaster@ferc.fed.us.
Finally, the complete text on diskette in WordPerfect format may be
purchased from the Commission's copy contractor, RVJ International,
Inc. RVJ International, Inc. is located in the Public Reference Room at
888 First Street, N.E., Washington, D.C. 20426.
Order on Rehearing and Clarification
Before Commissioners: James J. Hoecker, Chairman; Vicky A. Bailey,
William L. Massey, Linda Breathitt, and Curt Hebert, Jr.
This order addresses a number of requests for rehearing and
clarification of the Commission's final rule revising its complaint
procedures. The general framework established by the complaint rule
remains the same. The order does, however, grant rehearing and
clarification in instances where the suggested changes will improve the
new procedures and contribute to ensuring that the process allows the
resolution of complaints in the most suitable manner.
I. Background
On March 31, 1999, the Federal Energy Regulatory Commission
(Commission) issued a final rule (Order No. 602) 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 Order No.
602 was 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\ Complaint Procedures, Order No. 602, III FERC Stats. & Regs.
para. 31,071 (1999), 64 FR 17087 (April 8, 1999).
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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
revised Rule 206 of its Rules of Practice and Procedure.2
Among other things, the Commission required that complaints meet
certain informational requirements, required answers to be filed in a
shorter, 20-day time frame, and provided various paths for resolution
of complaints, including Fast Track processing for complaints that are
highly time sensitive. The Commission intended these changes to ensure
that the Commission and all parties to a dispute would have as much
information as early in the complaint process as possible to evaluate
their respective positions. The changes were also intended to ensure
that the process used to resolve a complaint would be 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 added 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
adopted these new procedures to provide a process by which small
controversies can be resolved more simply and expeditiously than more
complicated matters.
The Commission also took a number of steps to support its policy of
promoting consensual resolution of disputes among parties in the first
instance. The Commission pointed out that 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. The Commission
emphasized that this new service will also help identify cases
appropriate for ADR processes and
[[Page 43601]]
conduct ADR processes, including convening sessions. To further
publicize and establish its Enforcement Hotline as a viable alternative
to the filing of a formal complaint, the Commission codified its
current Enforcement Hotline procedures.3
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\3\ 18 CFR Part 1b (1998).
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The Commission also revised 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 and 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.
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\4\ 18 CFR 385.604-606 (1998).
\5\ Pub. L. 104-320, 110 Stat. 3870 (October 19, 1996).
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The Commission also revised certain sections of Part 343,
Procedural Rules Applicable to Oil Pipeline Proceedings,6 to
conform to the changes in the Commission's complaint procedures in Part
385 of the regulations.
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\6\ 18 CFR Part 343 (1998).
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Requests for rehearing and/or clarification of Order No. 602 were
filed by ARCO Products Company, and Ultramar Diamond Shamrock
Corporation (ARCO); Association of Oil Pipe Lines (AOPL); Chevron Pipe
Line Company (Chevron Pipe Line); Chevron Products Company (Chevron
Products); Enron Interstate Pipelines (Enron); Express Pipeline
Partnership (Express); Indicated Shippers; Interstate Natural Gas
Association of America (INGAA); Southern Company Services, Inc.
(Southern Company); and the Williams Companies, Inc. (Williams). Their
requests for rehearing and/or clarification will be addressed below.
The topic headings in the discussion section are those used in Order
No. 602.
II. Discussion
The Commission continues to encourage and support consensual
resolution of complaints and reaffirms its commitment to resolving
disputes in as timely and as fair a manner as possible. The Commission
has reviewed the requests for rehearing and concludes that in many
instances the suggestions for change will improve the new procedures
and contribute to ensuring that the process allows the resolution of
complaints in the most suitable manner.
A. Informational Requirements for Complaints
The final rule revised Rule 206 of the Commission's Rules of
Practice and Procedure to require that a complaint satisfy certain
informational requirements.
Indicated Shippers states that Rule 206(b) requires the complainant
to state whether informal procedures were used to resolve the complaint
prior to filing. If such procedures were not used, the preamble to the
final rule indicates that the complainant must explain why. However,
the regulatory text does not expressly require such an explanation.
Indicated Shippers submit that the regulatory text should be modified
to reflect the requirement that an explanation be provided, as
discussed in the preamble.
The Commission grants Indicated Shippers' request. In the final
rule, the Commission strongly encouraged parties to attempt informal
resolution of their disputes prior to the filing of a formal complaint.
The Commission therefore adopted the proposal in the NOPR that parties
be required to explain whether alternative dispute resolution was
tried, and, if not, why. The regulatory text inadvertently omitted this
requirement. Therefore, on rehearing Sec. 385.206(b)(9)(i) is revised
to require a complaint to state ``whether the Enforcement Hotline,
Dispute Resolution Service, tariff-based dispute resolution mechanisms,
or other informal dispute resolution procedures were used, or why these
procedures were not used.''
In the final rule, the Commission adopted procedures to allow
complainants and respondents to request privileged treatment of
information contained in a complaint or answer, and for interested
persons to obtain the privileged version of the complaint or answer.
These procedures are contained in Sec. 385.206(e) for complaints and
Sec. 385.213(c)(5) for answers.
On rehearing, the Indicated Shippers assert that the procedure in
the final rule creates the potential that complainants would be
required to provide confidential materials to non-parties. Indicated
Shippers submit that the ten-day period contemplated for requesting and
receiving confidential materials will conclude twenty days before
answers and interventions are due. Indicated Shippers contend that a
complainant would be required to produce confidential material for an
entity that had not intervened at that point, and might not intervene
at all. Indicated Shippers propose that the Commission amend the rule
to provide that a complainant need not disclose confidential material
to a non-party. Indicated Shippers argue that the complainant should be
required to serve the material by the later of (1) five days after
receipt of the request or (2) the date of the requesting party's motion
to intervene. Indicated Shippers states that because respondents are
automatically parties, the complainant would be required to provide the
confidential materials to the respondent within five days of the
respondent's request as provided in the final rule. In addition,
Indicated Shippers state that an interested person seeking to examine
the material before the intervention deadline could always intervene in
advance of the deadline.
Indicated Shippers argue that the wording of Rule 206(e)(3) appears
to foreclose any requests for confidential materials once the initial
five-day period following the filing of the complaint has expired.
Indicated Shippers propose that the Commission not adopt a deadline for
requests for confidential materials. Indicated Shippers contend that
truly interested person have an obvious motivation to obtain the
confidential material as soon as possible, in order to participate
meaningfully, and do not need the compulsion of a deadline. However,
the Commission should not eliminate the five-day deadline for
complainants to furnish the confidential material to parties once a
request for such information is made. Indicated Shippers submit that
the Commission should similarly modify the corresponding provisions of
Rule 213.
The Commission grants Indicated Shippers request for rehearing. The
Commission's intention in establishing procedures for privileged
information was to allow a complainant to have adequate protection for
information it believed was commercially sensitive while allowing the
respondent and interested parties an opportunity to receive the
privileged information in a meaningful time for filing answers and
comments. The Commission did not intend for information to be available
to non-parties. The Commission also agrees with Indicated Shippers
argument that a deadline for requesting privileged information is not
necessary because a party has an obvious motivation to receive the
information quickly in order to meaningfully participate in the
proceeding. The Commission will therefore make the modifications
suggested by Indicated Shippers.
Section 385.206(e)(3), concerning procedures for privileged
treatment of information in complaints, will now read:
The respondent and any interested person who filed a motion to
intervene in the complaint proceeding may make a written request to
the complainant for a copy of the complete complaint. The request
must include an executed copy of the protective
[[Page 43602]]
agreement and, for interested persons other than the respondent, a
copy of the motion to intervene. Any person may file an objection to
the proposed form of protective agreement.
Section 385.213(c)(5)(iii), concerning procedures for privileged
treatment of information in answers, will now read:
The complainant and any interested person who has filed a motion
to intervene may make a written request to the respondent for a copy
of the complete answer. The request must include an executed copy of
the protective agreement and, for interested persons other than the
complainant, a copy of the motion to intervene. Any person may file
an objection to the proposed form of protective agreement.
In the final rule, the Commission stated that the procedures for
requesting privileged treatment have the advantage of enabling the
parties to resolve disclosure disputes through consensual agreement
among themselves without the need for Commission involvement in every
instance involving privileged information. The Commission stated that
it 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. The Commission stated that, if necessary, it could develop a
model protective agreement akin to the model protective order developed
recently by the Office of Administrative Law Judges.
While not seeking rehearing, AOPL and Chevron Pipe Line urge the
Commission to seek comments on any such model protective agreement
before adopting it. Their concerns stem from the fact that what may be
an acceptable protective agreement for the natural gas and electric
industries may not be acceptable for an oil pipeline subject to Section
15(13) of the Interstate Commerce Act. Section 15(13) of the Interstate
Commerce Act makes it a crime for an oil pipeline to divulge
information regarding its shippers. In Chevron Pipe Line's view, the
only manner in which it can provide Section 15(13) information to
another party in a proceeding (absent the shipper's consent) is if the
protective agreement limits the availability of that information to
outside counsel and expert witnesses. Chevron Pipe Line submits that
the model protective agreement adopted by the Chief Judge, referenced
by the Commission in Order No. 602, does not include that limitation.
The Commission understands the concerns of the oil pipeline
industry and does not intend to adopt any model protective agreements
or orders without input from the affected industries. If, in the
future, the Commission determines that obtaining consensual agreement
concerning privileged information is proving problematic, the
Commission will then decide how to proceed in crafting model protective
agreements or orders.
Southern Company asserts that while deadlines are imposed for
filing answers, complainants are under no obligation to initiate the
grievance process within any particular timeframe after the occurrence
of the event giving rise to the dispute. This disparate treatment would
allow complainants to spend unlimited time preparing a detailed
complaint, complete with supporting expert witness testimony and
exhibits. The respondent would then only have twenty days to
investigate the facts, perform any needed research and prepare an
answer. Such an approach is unfair and raises serious due process
questions. Southern Company requests that the Commission revise the
complaint procedures to limit availability of expedited adjudication to
instances when the complainant shows that it initiated the grievance
resolution process promptly following the occurrence of the event that
underlies the dispute. In this regard, it would be reasonable for
complainants to initiate the process within the same time frames
applicable for respondents to submit an answer. Southern Company
asserts that if a complainant is unable to initiate the process within
those deadlines, it would be unreasonable to require respondents to
answer within those timeframes. Southern Company contends that such an
approach should not bar complaints that do not meet the deadlines, but
the abbreviated timeframes for answers and Commission action set forth
in the final rule should not apply to those complaints.
The Commission denies Southern Company's request for rehearing.
Southern Company's request is essentially that a complainant be
required to file a complaint within 20 days after the occurrence of the
event underlying the complaint. In the Commission's view, this sort of
``statute of limitations'' requirement is inappropriate. The Commission
and the parties would become bogged down unnecessarily in details
concerning what is the event or occurrence which gave rise to the
complaint, and from what event the deadline should run. Complainants
have an incentive to file their complaints as quickly as possible so
that they may obtain prompt relief, where appropriate. Further, given
the more detailed filing requirements set forth in the complaint rule,
it would be burdensome to require a complainant to file a complaint
within 20 days after the event giving rise to the complaint.
Nevertheless, the Commission clarifies that if a respondent wants
additional time to file an answer it may request it. The Commission
would consider a long time elapsed between the event giving rise to the
complaint and the filing of the complaint as a factor justifying an
extension of time. The Commission will be flexible in considering
requests for extension and will favor granting them in circumstances
where an extension will foster development of a complete record early
in the complaint process.
B. Informal Resolution
Throughout the final rule the Commission reiterated its interest in
strongly encouraging parties to attempt informal resolution of their
dispute. In that regard the Commission had requested information on
what professional assistance the Commission might provide to facilitate
informal dispute resolution. In response a number of parties requested
publication of complaints on the Commission's web site, a complaint
status report on the Commission's web site, or a procedural hotline
concerning a party's options for complaints. The Commission stated that
although it could 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, would be considered as part of the Commission's broader
review of its information technology capabilities as well as the
proceeding in Docket No. PL98-1-000 concerning public access to
information and electronic filing.
Indicated Shippers assert the final rule creates the potential that
interested persons not actually served with a complaint will not become
aware of the complaint in time to intervene and present their legal
positions and factual support in a timely manner. The late-filed and or
incomplete interventions and answers which could result from inadequate
notice may bog down the complaint proceedings with piecemeal record
development and due process issues.
Given that the Commission accepts certain types of filings
electronically, Indicated Shippers believe that the Commission should
be able to post the full text of complaints on its web site. At a
minimum, the Commission should post on its homepage a centralized list
of pending complaints, comparable to the rate filings list on the
Commission's gas page, which provides access to files. The listing
should include (1) the names of the complainant and respondent, (2)
[[Page 43603]]
the docket number assigned, (3) the date the complaint was filed, and
(4) whether the complaint included confidential information submitted
under Part 388, for which execution of a confidentiality agreement
would be required to obtain access. With this information, potentially
affected parties reviewing the Commission's homepage could then access
the notice via the Commission Issuances Posting System (CIPS) and the
complaint itself via the Records and Information Management System
(RMS).
In the alternative, the Commission could require the regulated
entity to which the complaint relates to post the complaint, or notice
of the complaint including filing date and docket number of the
regulated entity's electronic bulletin board or web page.
The Commission agrees that Indicated Shippers' suggestion to
include basic information on the Commission's Homepage is reasonable
and may prove beneficial in notifying potential parties if issues in a
complaint affect them. The Commission's goal continues to be to provide
the public with as much information as possible with respect to
complaints and the complaint process. Therefore, the Commission will be
adding to its Homepage a list of all complaints pending with the
Commission. The list will include the information suggested by the
Indicated Shippers.
C. Simultaneous Service
In the final rule, the Commission adopted Sec. 385.206(c) to read
as follows:
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.
On rehearing, AOPL and Chevron Pipe Line assert that service
simultaneous with filing should be by hand, fax or electronic mail
unless demonstrably impossible. AOPL states that while hand service is
certainly dependent on the geographic proximity of the complaint and
respondent, fax and electronic mail are not. AOPL submits that there is
no reason why a respondent should not, at a minimum, get a copy of the
complaint the day it is filed unless complainant can prove there was no
fax or electronic mail service available because of circumstances
outside the complainant's control. A copy of the full filing should
then follow by overnight mail. Chevron Pipe Line asserts that there is
no practical distinction that simultaneous service is required only if
the respondent is in the same metropolitan area as the complainant--
that distinction does not take account of the real-life considerations
involved in filing complaints with the Commission. If the entity filing
the complaint is located outside the Washington, D.C. area, it will
generally file the complaint with the Commission by next day delivery
or by mail. In that case, there is no reason that the complainant
cannot serve the respondent on the same day as the complaint is filed,
regardless of where the respondent is located. Chevron Pipe Line
asserts that the Commission should remedy this unnecessary distinction
and require simultaneous service of all complaints on the respondent,
while allowing next day service on any other required entity.
The Commission grants the requests for rehearing. The Commission
concludes that the reference to a ``metropolitan area'' in the
regulations could lead to unreasonable results. For example, as Chevron
Pipe Line points out, under the regulation as written, a Washington,
D.C. law firm filing a complaint on behalf of a Houston client would
have to make simultaneous service on a Houston respondent, while
service on a Philadelphia or Washington, D.C. respondent could be the
next day. Therefore, Sec. 385.206(c) will be revised to require
simultaneous service on the respondent regardless of the respondent's
location. The complainant should take all reasonable steps to serve the
respondent simultaneous with filing at the Commission. Simultaneous or
overnight service will be acceptable for all other affected
entities.7
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\7\ The Commission is also revising section 385.206(c) to
require that simultaneous service by electronic mail must be in
accordance with section 385.2010(f)(3) as promulgated in Order No.
604, Electronic Service of Documents, 87 FERC para. 61,205 (1999).
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INGAA seeks clarification that, as part of the service requirement,
parties must serve the complaint on the corporate official appointed to
receive such service by the regulated entity. Thus, all Commission-
regulated entities should be required to appoint an official to receive
service of complaints, which official is to be designated on the
company's electronic bulletin board or web site. INGAA states that
absent this requirement, a complaint served on a corporation without
identifying a specific individual recipient could be misrouted or its
significance overlooked. INGAA submits that by the time the responsible
officials become aware that a complaint has been filed, a large portion
of time for answering may have been lost, adversely affecting the
completeness and timeliness of the answer. INGAA asserts that a uniform
requirement that every regulated entity appoint a corporate official
responsible for receiving service of complaints, and a corollary
requirement that complainants serve that official directly, will ensure
that responses to those complaints are filed expeditiously, thus
furthering the goals of the final rule.
The Commission finds INGAA's suggestion to be reasonable given the
shorter amount of time respondents have to answer a complaint under the
revised regulations. The requirement that a corporate official be
designated to receive service of complaints should ensure expeditious
receipt and handling of complaints by regulated entities. The
Commission concludes that designating a corporate official to receive
service would also be of benefit in other types of proceedings. The
Commission therefore is issuing a notice of proposed rulemaking
concurrently with this order proposing to add a new section (i) to
Sec. 385.2010 (Rule 2010) to require that all entities regulated by the
Commission designate corporate officials or other persons to receive
service of certain types of pleadings where a person to receive service
has not otherwise been designated under the Commission's regulations.
D. Time Period for Answers, Comments and Interventions
Section 385.206(f) adopted in the final rule requires 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.
On rehearing, AOPL asserts that the time to answer should run from
issuance of the notice of the complaint. AOPL argues that there is a
real potential that interested parties who may be indirectly affected
by a complaint may not be among those that would normally receive a
copy of the complaint. Thus, not being served under the Commission's
rules, they may not learn of the complaint until much of the already
limited answer period has passed. AOPL submits that much would be
gained from a due process standpoint, and little would be lost in terms
of time, if the response, comments
[[Page 43604]]
and intervention period began to run from the issuance of the notice.
The Commission recognizes that there may be interested persons who
may not receive service of the complaint even using the broad category
of ``others the complainant reasonably knows may be expected to be
affected by the complaint,'' as required for service in Rule 206(c).
Nevertheless, in the Commission's view, the time for filing answers
should be determined from the date of filing of the complaint, rather
than the notice. The Commission has found that in most instances
interested parties are capable of responding to filings in a thoroughly
capable manner even when doing so under time requirements shorter than
those for answers to complaints.8 In addition, AOPL's
concerns should be alleviated by the fact that the Commission will be
posting basic information on a complaint on the Commission's web site
when it is received. This will permit interested persons to have the
same amount of time to file answers, interventions, or comments as
parties served under the regulations. The Commission also will remain
flexible in considering the circumstances supporting any requests for
extension of time to answer.
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\8\ See, for example, 18 CFR 154.210, which requires that
protests to tariff filings under section 4 of the Natural Gas Act
must be filed not later than 12 days after the date of the tariff
filing.
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AOPL and Express assert that to the extent that the parties wish to
pursue dispute resolution prior to the answer due date, the Commission
should toll the answer period. If the complainant and the respondent
agree to stay the answer in order to pursue settlement negotiations or
some form of dispute resolution, the Commission should support such
action. AOPL and Express contend that the Commission's rules should be
modified to permit stay of the answer if settlement is being actively
pursued.
The Commission will entertain requests to extend the time for
answers pending the outcome of settlement negotiations or alternative
dispute resolution. This is in keeping with one of the principles of
the complaint rule of encouraging consensual resolution where possible.
A further change to the regulations to recognize this, however, is
unnecessary. The parties can simply file a motion pursuant to
Sec. 385.2008 requesting an extension of time within which to file an
answer.
Chevron Pipe Line contends that the Commission should restore 30
days as the generally applicable period for filing an answer. Chevron
Pipe Line asserts that a 20 calendar day response period, especially
with next day service, does not permit sufficient time in which to
research the facts and issues raised by a complex complaint and prepare
a written response. Chevron Pipe Line argues that it is unnecessary to
shorten the standard period to 20 calendar days, especially since the
Commission is establishing procedures in which answers to extremely
time sensitive complaints may be required in a shorter period under
fast track processing. If the Commission believes that fast track
processing is not, by itself, sufficient to handle time-sensitive
matters, it should amend its rules to allow a complainant to seek a
shortening of the answering period when it files its complaint, upon
the proper showing. Chevron Pipe Line submits that under such a
procedure, the answer would be filed more quickly, but the complainant
would be accorded standard, not fast track, processing. Chevron Pipe
Line asserts that by allowing only 20 calendar days and by beginning
the period with the filing of the complaint rather than its service,
the Commission is actually allotting less time for answers to
complaints filed with it than is allotted for complaints filed in
federal court. Chevron Pipe Line states that Rule 12 of the Federal
Rules of Civil Procedure provide that answers must be filed within 20
days of service of the summons and complaint.
The Commission denies Chevron Pipe Line's request for rehearing.
The Commission considers twenty days to be appropriate because it
provides a respondent with a sufficient amount of time to answer a
complaint while furthering the goal of speeding up the complaint
resolution process. In addition, as more fully discussed below, the
Commission is modifying the requirement that respondents provide ``all
documents supporting the answer'' to ``documents supporting the
answer.'' This will lessen the burden on respondents when they are
preparing their answers. Finally, as also discussed below, and as
touched on earlier, where good cause is shown, the Commission will give
respondents more time to file an answer.
Williams urges the Commission to clarify that Rule 2008 of the
Commission's Rules of Practice and Procedure is applicable to the
complaint procedures and that the Commission will grant extensions of
time to respond to complaint for good cause shown. Williams is
concerned that in certain instances it may be impossible to meet the
accelerated deadlines set forth in the complaint procedures.
The Commission clarifies that parties may file requests for
extensions of time with respect to filing pleadings in a complaint case
and the Commission may grant such requests pursuant to Rule 2008. As
stated earlier, the Commission will consider extending the time for
answering when an extension will further the goal of ensuring as
complete a record as possible early in the complaint process.
The Commission will also be making a conforming change to Rule
213(d). That section currently states that answers to pleadings are due
30 days after the filing of the pleading or, if a notice is published
in the Federal Register, 30 days after the publication of the notice.
The Commission will modify the regulation so it will not be applicable
to answers to complaints. This conforming change should have been made
in the Final Rule but was overlooked.
D. Revisions to Oil Pipeline Regulations
The final rule revised certain sections of Part 343. Procedural
Rules Applicable to Oil Pipeline Proceedings, to conform with the
changes to the Commission's complaint procedures.
AOPL, Chevron Products, and Express assert that the Commission
should exclude oil pipelines from the new rules and leave the
distinctly different and entirely separate oil pipeline complaint
procedures in place. Petitioners assert that the Commission's own
discussion of the need for the new procedures only cited transitions in
the natural gas and electric industries as the motivation for the new
rules. They argue that nowhere in that discussion does the Commission
recognize any transition or other development occurring in the oil
pipeline arena militating for change. Further, petitioners assert that
the very nature of the issues traditionally addressed in the oil
pipeline arena are far more complex and factually based than the more
generic, policy oriented disputes currently arising in the natural gas
and electric sectors.
The Commission's purpose in revising the oil pipeline regulations
was to 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. In the Commission's view, this purpose is still valid.
Nevertheless, the Commission recognizes that the oil pipeline industry
is not undergoing the same changes as the electric and gas industries.
The Commission also acknowledges that complaint cases against oil
pipelines in many instances may not require or lend themselves to the
type of faster decision
[[Page 43605]]
contemplated by the complaint rule. Accordingly, where the nature of a
complaint against an oil pipeline may not fit neatly into the complaint
resolution paths adopted in the Final Rule, the Commission will be
flexible and devise a suitable procedure that will ensure resolution of
the dispute in a manner that best serves all. Such an approach, which
applies to other complaints as well, is best applied on a case-by-case
basis, rather than through changes to the complaint regulations.
ARCO asserts that the standard of ``substantially in excess'' of
cost based rates 9 is illegal and inconsistent with the
decision of the Court of Appeals for the District of Columbia circuit
in Farmers' Union Central Exchange, Inc. et al. v. FERC, 734 F.2d 1486,
1510 (D.C. Cir.), cert. denied, 469 U.S. 1034 (1984). ARCO asserts that
the final rule fails to state all requirements for qualifying for or
complaining against ``market-based'' rates, and is thus inconsistent
with Farmers Union II. ARCO contends that the final rule conflicts with
the actual practice of the Commission with respect to requirements for
a complaint against cost-based or market-based rates. One or the other
must conform. ARCO submits that the final rule, if it encompasses the
process now in effect, discriminates against shippers seeking redress
of grievances against oil pipelines and results in the effective
refusal of the agency to do its statutory duty of ensuring that all
rates are just and reasonable. ARCO contends that the Commission's new
complaint process for shippers seeking rate redress from oil pipelines
will require six different and sequential order, all subject to
judicial review.
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\9\ The standard is set forth in Sec. 343.2(c) of the
Commission's regulations and refers to the standard for challenging
rates established under the indexing regulations of Sec. 342.3 and
the standard for challenging settlement rates established under
Sec. 342.4(c). The standard was established in Order No. 561,
Revisions to Oil Pipeline Regulations Pursuant to the Energy Policy
Act of 1992, FERC Stats. & Regs. (Regulation Preambles 199-1996)
Sec. 30,985 (1993). 58 FR 58753 (November 4, 1993), order on reh'g,
Order No. 561-A, FERC Stats. & Regs. (Regulation Preambles 1991-
1996) Sec. 31,000 (1994), 59 FR 40243 (August 8, 1994).
---------------------------------------------------------------------------
In the Final Rule the Commission made only two procedural changes
to the oil pipeline regulations with respect to complaints. First,
depending on whether the complaint involved rate or non-rate matters,
certain information requirements in Rule 206 would have to be followed.
Second, the Commission required that answers to complaints must be
filed within 20 days after the complaint is filed. The Commission did
not make any changes to the substantive regulations or policies
governing oil pipeline complaints. ARCO's assertion in its request for
rehearing that standards used to examine different types of rates are
inconsistent with various court cases is inapposite because the
complaint rule did not make any changes to oil pipeline ratemaking
standards.10 Accordingly, ARCO's request for rehearing is
denied.
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\10\ Section 13(1) of the Interstate Commerce Act provides that
anyone can file a complaint against ``anything done or omitted to be
done by any common carrier * * *'' Thus, any complaint against an
oil pipeline's market-based rates would fall under this provision
and the burden would fall to the complainant to establish that those
rates are no longer just and reasonable. The Commission has not
established an evidentiary standard for adjudicating such complaints
in this or any other proceeding. As for challenges to rates deemed
just and reasonable under Section 1803(a) of the Energy Policy Act,
the Act itself at Section 1803(b) establishes a ``substantial
change'' standard that a complainant must meet.
---------------------------------------------------------------------------
E. Content of Answers
Section 385.213(c)(4) adopted in the final rule requires 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.''
On rehearing, AOPL, Chevron Pipe Line and Express assert that the
requirements for answers are too complex and burdensome. AOPL asserts
that the final rule applies parallel requirements for supporting
affidavits, testimony and documentation for complaint and answer alike.
AOPL submits that for practical and procedural reasons, this
parallelism is both unreasonable and unnecessary. AOPL argues that
respondents should be required to demonstrate in their answers the
nature of the factual conflict posed by the complaint. They should not
be required to file a responsive case in chief accompanied by ``all
documents'' that would support their position. AOPL contends that the
Commission should seek a middle ground between the new requirements and
the prior rule. Chevron Pipe Line asserts that requiring the provision
of all documents may be construed as moving discovery to the answering
stage of a proceeding. Chevron Pipe Line argues that the reference to
``testimony'' is unnecessary, since factual support can be provided
through affidavits, and is procedurally confusing, since testimony
usually means a party's case developed after necessary discovery.
Chevron Pipe Line suggests that the Commission remove the word ``all''
from before documents and by deleting the reference to ``testimony'' in
Rule 213(c)(4). Chevron Pipe Line states that the rule would then call
for a provision of documents supporting the facts in the answer.
Chevron Pipe Line submits that respondents will be properly motivated
to include supporting documents, especially since they will be aware
that certain matters can be decided on the basis of the complaint and
answer alone. Chevron Pipe Line also contends that the Commission's
regulation should provide that when time to file an answer is shortened
for fast track processing, the respondent is required to provide only
readily accessible documents.
The Commission concludes that it would be reasonable to require
respondents to provide ``documents that support the facts in the
answer'' as opposed to ``all documents that support the facts in the
answer.'' The reference to ``all documents'' could be considered a
burdensome requirement given that respondents have 20 days to file an
answer. The Commission's intent was not to move discovery to an earlier
stage of the proceeding but rather to ensure that an answer was
properly supported by documentation. In the Commission's view, a
respondent will be motivated to provide all relevant documents that
support its case, even if ``all documents'' are not required. Since a
complaint case may be decided on the pleadings alone, a respondent runs
the risk of an adverse decision if it decides to withhold documents
beneficial to its position. The requirements for an answer need not
parallel and be as stringent as those for a complaint because it is the
complainant who bears the burden of proof. Accordingly, the Commission
will grant rehearing and strike the word ``all'' before the word
documents in Sec. 385.213(c)(4).
The Commission clarifies that the reference to testimony in
Sec. 385.213(c)(4) does not require a respondent to prepare new
testimony for a particular complaint proceeding. In order to avoid any
confusion, the Commission will delete the reference to ``testimony'' in
Sec. 385.213(c)(4).11 The references to ``contract,
affidavits, and testimony'' in both Sec. 385.206(b)(8) and
Sec. 385.213(c)(4) were intended to be examples of the types of
documentation that complainants and respondents could provide. If it
wishes, a party may prepare and submit testimony for a complaint
proceeding. It is more likely, however, that a party would provide
preexisting testimony which could shed light on an issue raised in the
proceeding. Such testimony, for example, could be prior testimony in
[[Page 43606]]
another case describing certain aspects of a pipeline's operations.
---------------------------------------------------------------------------
\11\ The Commission is also making the same change in
Sec. 385.206(b)(8).
---------------------------------------------------------------------------
Given the short time frame for an answer when a complaint is
assigned to the Fast Track process, the Commission will look at the
practicalities of a respondent being able to answer a complaint with
extensive detail and documentation on a case-by-case basis. This
assurance should alleviate Chevron Pipe Line's concerns.
Indicated Shippers assert that the final rule requires the
respondent to serve its answer, without any confidential material and
accompanied by a form of protective agreement, to each entity that has
been served pursuant to Rule 206. It is possible, however, that an
interested person that was not served by the complainant would have
intervened in the complaint docket before the respondent files the
answer. Indicated Shippers submit that such entities, as parties,
should receive service of the response, including a form of protective
agreement if the response contains confidential material. Indicated
Shippers assert that Rule 213 should reflect this requirement.
Indicated Shippers' request is reasonable, and, accordingly, the
Commission grants rehearing. To allow for the possibility of a person
intervening early who would like to be served the answer,
Sec. 385.213(c)(5)(ii) will be modified to read ``A respondent must
provide a copy of its answer without the privileged information and its
proposed form of protective agreement to each entity that either has
been served pursuant to Sec. 385.206(c) or whose name is on the
official service list for the proceeding compiled by the Secretary.''
F. 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
Sec. 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 also be requested. A ruling on preliminary
relief by an ALJ would be appealable to the Commission. Such an appeal
is provided for in Sec. 385.206(g)(2) adopted in the final rule.
Indicated Shippers supports the fast track concept in general.
However, it states that without prompt notice, the procedure will
create considerable uncertainty for the respondent and interested
persons. Indicated Shippers contend that the Commission could alleviate
uncertainty for the respondent and others by providing prompt notice
adopting a Fast Track procedure and establishing an answer/intervention
deadline or declining to adopt a Fast Track procedure. Ideally, such
notice should be provided by the close of the business on the first
business day following the filing of the complaint. Indicated Shippers
submit that, in that way, the respondent and intervenors will have
certainty quickly as to (1) whether the Commission will shorten the
answer and intervention deadline, and (2) what the new deadline will
be. Moreover, the Commission should not establish an answer/
intervention deadline that is shorter than ten days, in keeping with
the comments on the NOPR.
When it receives a complaint requesting Fast Track treatment the
Commission will endeavor to issue, no later than the next business day
following the filing of the complaint, a notice describing the
complaint, stating whether the Fast Track process is to be used and, if
so, the deadline for answers, interventions and comments, as well as
any other information concerning the procedures to be used.
Enron, INGAA and Williams assert that the Commission has exceeded
its NGA authority in specifying that interim relief is available for
Natural Gas Act Section 5 complaint proceedings. Enron asserts that
Section 5(a) of the NGA requires that the Commission must make a
finding that a rate, practice or contract is unjust, unreasonable,
unduly discriminatory, or preferential prior to fixing a new rate,
practice or contract. Thus, Enron asserts, the NGA explicitly states
that which must be proven in order for the Commission to impose a
change. Enron argues that an order, even an interim order, mandating
changes in a pipeline's rates or service must be based on a finding of
substantial evidence. Enron submits that the Commission cannot now
substitute a different standard. Enron contends that the standard in
Virginia Petroleum Jobber Ass'n v. FPC, 259 F.2d 921 (D.C. Cir. 1958),
cited in the final rule, does not satisfy the legal requirement of NGA
Section 5(a). Enron states that a court may grant preliminary relief
based merely upon the determination that the complainant is likely to
succeed on the merits. Enron asserts that it is not sufficient under
NGA section 5(a) that the Commission find merely that the action is
likely to be found unjust, unreasonable, unduly discriminatory or
preferential. Enron also contends that the absence of explicit
statutory language authorizing preliminary relief is evidence that
Congress did not intend to extend authority to the Commission.
INGAA asserts that the Commission itself has recognized that it has
no authority under section 5 to grant interim relief.12
INGAA asserts that the Commission's self grant of authority to order
preliminary relief in this proceeding in a section 5 complaint case
flies in the face of the explicit language of the statute that requires
a hearing, with a final merits decision that the company's actions are
unjust and unreasonable, prior to the imposition of any remedy. INGAA
also cites American Smelting and Refining Co. v. FPC, 494 F. 2d 925,
933 (D.C. Cir. 1974) where the court held that:
---------------------------------------------------------------------------
\12\ Citing, Southern Natural Gas Co., 66 FERC para. 61,302 at
61,867 (1994) (stating that in Western Resources, Inc. v. FERC, 9
F.3d 1568, 1578 (D.C. Cir. 1993) the court found unlawful the
Commission's attempt to replace the pipeline's pre-existing backhaul
rate on an interim basis because it failed to meet the section 5
requirements).
[t]he ``core section'' underlying the orders now before us is
section 5(a) which empowers the Commission, on its own motion, after
hearing, to correct discriminatory practices by natural gas
companies. Like any order issued pursuant to section 5(a), an
interim order can only issue after full hearing and must include a
statement or reasons based upon findings of fact which are supported
by substantial evidence in the record. No emergency can excuse these
---------------------------------------------------------------------------
procedural requirements.
Thus, INGAA asserts, the court in American Smelting recognized that the
Commission may not issue an interim order as provided in the final
complaint rule.
The Commission will clarify what types of relief the Commission may
provide under the complaint rule. At the outset, the Commission wishes
to make it clear that it will act only where it has authority under the
various statutes administered by the Commission. The final rule was
designed to provide potential complainants with as many procedural
options as possible to seek redress of their complaints given the
short-term and dynamic nature of energy markets. The Commission
acknowledges that use of certain terminology in the final rule
[[Page 43607]]
may have led to confusion and concern on the part of many parties. By
describing how the Commission envisions the complaint process working,
the Commission hopes to eliminate such concern and confusion.
The Commission will eliminate all references to preliminary relief,
other than stays or extensions of time, in the complaint regulations.
Thus, sections 385.206(b)(7) and 385.206(h) will be modified and
section 385.206(g)(2) will be deleted. In addition, the standards in
section (b)(7)(i) through (iv), which are based on Virginia Petroleum
Jobber Ass'n v. FPC, 259 F.2d 921 (D.C. Cir. 1958), will also be
deleted. In the Commission's view, these changes should eliminate
certain parties' concern that the Commission was attempting to
establish procedures for granting injunctive-type relief.
There may be cases, however, in which the Commission can issue what
could be categorized as an ``interim'' or ``preliminary'' order in a
complaint proceeding pursuant to existing authorities. For example, a
complainant may assert that a respondent's conduct is so egregious or
the evidence is so substantial supporting its case that the Commission
needs to take some immediate action. In filing its complaint, a
complainant could indicate that its evidence is so substantial as to
establish a prima facie case of a violation of the relevant statutory
standard or regulatory requirement. In these instances, the Commission
could pursue several options. If the Commission were to find the
complainant's case compelling based upon substantial evidence, the
Commission sua sponte could issue a show cause or declaratory order
based on the facts known at that time prior to the answer being filed.
The respondent would then be directed to address the requirements of
the order rather than file an answer. If the Commission did not find
that immediate action was appropriate, the Commission would wait for
the respondent to file an answer and then decide the appropriate course
of action. This type of relief may be appropriate in certain limited
circumstances and is within the Commission's authority to grant.
Further, a respondent's due process rights are protected because it has
the opportunity to respond to the show cause or declaratory order.
The Commission could also take such other ``interim'' or
``preliminary'' actions, as it can now, such as issuing an order
granting a stay or an order granting an extension of time, stop work
order, or other orders contemplated by certificate or hydroelectric
licensing conditions. In addition, a complainant may request forms of
relief which it believes is within the Commission's authority to grant.
The Commission will decide whether the relief may be granted on a case-
by-case basis. Accordingly, the requests for rehearing are granted
consistent with the discussion above.
Indicated Shippers assert that Rule 206(g)(1)(i) as codified states
that the Commission may assign a case to be resolved through
alternative dispute resolution or ``assign the case to a settlement
judge in accordance with section 385.603.'' However, Rule 603 states
that the Commission, instead of assigning cases directly to settlement
judges, directs that the Chief Administrative Law Judge appoint a
settlement judge. Indicated Shippers request that Rule 206(g)(1)(i) be
revised to conform to Rule 603.
The Commission grants Indicated Shippers' request for rehearing
since it accurately reflects the Commission's regulations. Therefore,
Sec. 385.206(g)(1)(i) will be modified to read ``The Commission may
assign a case to be resolved through alternative dispute resolution
procedures in accordance with Secs. 385.604-606, in cases where the
affected parties consent, or the Commission may order the appointment
of a settlement judge in accordance with section 385.603.''
G. Simplified Procedures for Small Controversies
The final rule codified in new Rule 218 procedures for complaints
involving small controversies that will allow them to be resolved more
simply and expeditiously than more complicated matters. The procedure
will be available if the amount in controversy is less than $100,000
and the impact on other entities is de minimis. Among other things,
answers, interventions and comments are due within 10 days after the
filing of the complaint.
Chevron Pipe Line asserts that the 10 day answer period is too
short a time period (a maximum of seven business days if the complaint
is filed on a Friday, including the day of receipt of the complaint)
and there is no justification for adopting a shorter time than the
normal period for answers. In Order No. 602, the Commission recognized
that fast track processing will place a strain on its resources. In the
same manner, preparing answers to complaints places a strain on the
respondent's resources. Chevron Pipe Line asserts that business
personnel necessary for the preparation of answers to complaints have
other responsibilities, which cannot be completely ignored in favor of
preparing the answer. Chevron Pipe Line contends that the Commission
should not intensify that unavoidable strain with a 10 day answering
period. Rather, it should allow the normal period for answers to small
controversy complaints, and, amend its rules to allow a complainant to
seek a shorter period upon the proper showing.
The Commission denies Chevron Pipe Line's rehearing. In the
Commission's view, the 10 day answer period is sufficient given the
more limited nature of the complaints filed under the simplified
procedure. Moreover, a respondent is not required to file relevant
documents with its answer, thus reducing its burden. Nevertheless, if a
respondent believes that the answer period is too short, it may request
an extension of time within which to file an answer pursuant to Rule
2008.
Williams asserts that the complaint procedures erroneously provide
simplified procedures for controversies less than $100,000, regardless
of the likelihood that such controversies could have significant policy
impacts. Williams contends that the simplified procedure ignores the
ultimate impact on both the respondent and the industry, especially
when policy issues are involved. Williams argues that the value placed
on a claim by a complainant in one instance might not accurately
reflect the ultimate impact of the complaint proceeding. For example, a
controversy that is worth $50,000 to the complainant may be worth
millions of dollars to the respondent after a precedent is set and
others avail themselves of that precedent. Further, Williams asserts
that issues that involve matters of policy, even if the amount in
controversy is small, must be given full and adequate consideration.
Williams submits that the complaint procedures should be revised to
eliminate the discriminatory, special treatment for small controversies
and provide everyone with the same treatment and procedures.
The Commission denies the request for rehearing. The simplified
procedures for complaints are designed to resolve disputes between the
complainant and the regulated entity involving less complex matters,
for example, a billing dispute. It was not contemplated that small
controversy complaints would have any major policy implications. The
procedures are designed to allow a complainant with limited resources
to seek relief before the Commission without incurring the time and
expense associated with a more formal complaint. The effects of a small
controversy complaints were intended
[[Page 43608]]
to be limited to the complainant and respondent, hence the de minimis
impact requirement. Nevertheless, if in a respondent's view, the use of
the simplified procedures is not appropriate, it should provide support
for such assertion in its answer. In the event the Commission finds
that a small controversy case has policy implications affecting an
industry, or resolution of the complaint would require the respondent
to take action affecting other customers that would have a cumulative
effect over $100,000, it can remove the case from the simplified
procedures and use the more formal procedures under Rule 206. Such
decisions will be made on a case-by-case basis.
III. Effective Date
The amendments to the Commission's regulations adopted in this
order on rehearing will become effective September 10, 1999.
List of Subjects in 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 denies rehearing
in part, grants rehearing in part, and clarifies Order No. 602 as
described above, and amends Part 385, Chapter I, Title 18, Code of
Federal Regulations, as set forth below.
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 Sec. 385.206, paragraphs (b)(7), (b)(8), (b)(9)(i), (c),
(e)(3), and (h)(1) are revised, paragraph (g)(2) is removed, paragraphs
(g)(1) introductory text, (g)(1)(i), (g)(1)(ii) and (g)(1)(iii) are
redesignated as paragraphs (g) introductory text, (g)(1), (g)(2) and
(g)(3), respectively, and newly redesignated paragraph (g)(1) is
revised to read as follows:
Sec. 385.206 Complaints (Rule 206).
* * * * *
(b) * * *
(7) State the specific relief or remedy requested, including any
request for stay or extension of time, and the basis for that relief;
(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 and affidavits;
(9) * * *
(i) Whether the Enforcement Hotline, Dispute Resolution Service,
tariff-based dispute resolution mechanisms, or other informal dispute
resolution procedures were used, or why these procedures were not used;
* * * * *
(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. Simultaneous or overnight service is permissible for
other affected entities. Simultaneous service can be accomplished by
electronic mail in accordance with Sec. 385.2010(f)(3), facsimile,
express delivery, or messenger.
* * * * *
(e) * * *
(3) The respondent and any interested person who has filed a motion
to intervene in the complaint proceeding may make a written request to
the complainant for a copy of the complete complaint. The request must
include an executed copy of the protective agreement and, for persons
other than the respondent, a copy of the motion to intervene. Any
person may file an objection to the proposed form of protective
agreement.
* * * * *
(g) * * *
(1) The Commission may assign a case to be resolved through
alternative dispute resolution procedures in accordance with
Secs. 385.604-385.606, in cases where the affected parties consent, or
the Commission may order the appointment of a settlement judge in
accordance with Sec. 385.603;
* * * * *
(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 relief by the Commission or an ALJ.
* * * * *
3. In Sec. 385.213, paragraphs (c)(4), (c)(5)(ii), (c)(5)(iii) and
(d)(2) introductory text are revised to read as follows:
Sec. 385.213 Answer (Rule 213).
* * * * *
(c) * * *
(4) An answer to a complaint must include documents that support
the facts in the answer in possession of, or otherwise attainable by,
the respondent, including, but not limited to, contracts and
affidavits. An answer is also required to describe the formal or
consensual process it proposes for resolving the complaint.
(5) * * *
(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 either been served pursuant to Sec. 385.206 (c) or
whose name is on the official service list for the proceeding compiled
by the Secretary.
(iii) The complainant and any interested person who has filed a
motion to intervene may make a written request to the respondent for a
copy of the complete answer. The request must include an executed copy
of the protective agreement and, for persons other than the
complainant, a copy of the motion to intervene. Any person may file an
objection to the proposed form of protective agreement.
* * * * *
(d) * * *
(2) Any answer to a pleading or amendment to a pleading, other than
a complaint or an answer to a motion under paragraph (d)(1) of this
section, must be made:
* * * * *
[FR Doc. 99-19885 Filed 8-10-99; 8:45 am]
BILLING CODE 6717-01-P
