[Federal Register Volume 59, Number 204 (Monday, October 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26284]
[[Page Unknown]]
[Federal Register: October 24, 1994]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 375
[Docket No. RM94-21-000]
Authorizing Delegation to the Secretary in Proceedings Under
Section 210 or Section 211 of the Federal Power Act; Order No. 570;
Final Rule
October 18, 1994.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission is amending its
regulations to authorize the Secretary, or the Secretary's designee, to
reject without prejudice all requests for rehearing and requests for
modification of a proposed order issued in a proceeding under either
section 210 or section 211 of the Federal Power Act (FPA). In addition,
the Secretary, or the Secretary's designee, will be authorized to
reject without prejudice all motions for clarification combined with
requests for rehearing and/or requests for modification of a proposed
order issued in a proceeding under either section 210 or section 211 of
the FPA.
This amendment is necessary in the interests of administrative
efficiency.
EFFECTIVE DATE: The final rule is effective November 23, 1994.
FOR FURTHER INFORMATION CONTACT: Gilda E. Rodriguez, Federal Energy
Regulatory Commission, Office of the General Counsel, 825 North Capitol
Street NE., Washington, DC 20426, (202) 208-0626.
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 Room 3104, 941 North
Capitol Street NE., Washington, DC 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing (202) 208-1397. To access CIPS, set your communications
software to use 300, 1200, or 2400 bps, full duplex, no parity, 8 data
bits and 1 stop bit. CIPS can also be accessed at 9600 bps by dialing
(202) 208-1781. The full text of this order will be available on CIPS
for 30 days from the date of issuance. The complete text on diskette in
WordPerfect format may also be purchased from the Commission's copy
contractor, La Dorn Systems Corporation, also located in Room 3104, 941
North Capitol Street NE., Washington, DC 20426.
I. Introduction
Issued October 17, 1994.
Before Commissioners: Elizabeth Anne Moler, Chair; Vicky A.
Bailey, James J. Hoecker, William L. Massey, and Donald F. Santa,
Jr.
The Federal Energy Regulatory Commission is amending 18 CFR
375.302. Under 18 CFR 375.302 the Commission delegates to the
Secretary, or the Secretary's designee, the authority to perform
certain functions listed in the regulation. The purpose of this final
rule is to amend the list of delegations to add that the Secretary, or
the Secretary's designee, has the authority to reject without prejudice
certain documents filed in proceedings instituted under section 210 or
section 211 of the Federal Power Act (FPA).1
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\1\16 U.S.C. 824i, 824j.
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Consistent with the Commission's prior orders, pursuant to this
rule the Secretary, or the Secretary's designee, will be authorized to
reject without prejudice all requests for rehearing and requests for
modifications of a proposed order issued in a proceeding under section
211 of the FPA. In addition, the Secretary, or the Secretary's
designee, will be authorized to reject without prejudice all motions
for clarification that are combined with requests for rehearing and/or
requests for modification of a proposed order issued in a proceeding
under section 211 of the FPA. The Secretary, or the Secretary's
designee, also will be granted the same authority for proceedings under
section 210 of the FPA. This amendment is necessary in the interests of
administrative efficiency.
II. Discussion
The Energy Policy Act of 1992 revised sections 211 and 212 of the
FPA2 so that the Commission, upon application, may issue an order
requiring a transmitting utility to provide transmission services once
certain conditions are met. Under section 211, the Commission may issue
an order only if it finds that the order meets the requirements of
section 212, complies with the statutory standards described in section
211, and would otherwise be in the public interest.
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\2\16 U.S.C. 824j, 824k.
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Section 212(c)(1) states that, before the Commission issues an
order under section 210 or section 211, the Commission shall issue a
proposed order and set a reasonable time for parties to the proposed
interconnection or transmission order to agree to terms and conditions
under which such order is to be carried out, including the
apportionment of costs between them and the compensation or
reimbursement reasonably due to any of them.
That section also provides that such proposed order shall not be
reviewable or enforceable in any court.3
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\3\16 U.S.C. 824k(c)(1).
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Consistent with this statutory mandate, in Florida Municipal Power
Agency v. Florida Power & Light Company,4--the first case in which
the Commission proposed to order transmission services under section
211, as amended by the Energy Policy Act--the Commission noted that it
had considerable discretion with respect to both the timing and the
specificity of a proposed order. Moreover, the Commission stated that
the proposed order shall not be reviewable or enforceable in court. The
Commission added that, consistent with 18 CFR 385.713, the proposed
order is an interlocutory order not subject to requests for rehearing;
the proper time for parties to seek rehearing is after the Commission
issues a final order under section 211.5
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\4\65 FERC 61,125, order dismissing requests for reh'g, 65 FERC
61,372 (1993) (Florida Municipal).
\5\65 FERC at 61,613.
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Responding to requests for rehearing of Florida Municipal, the
Commission reiterated the above, and explained that the preliminary
findings in a proposed order were not subject to judicial review or
requests for rehearing. The Commission explained that entertaining and
responding to arguments on preliminary findings could result in a waste
of resources of both the Commission and the parties, and could
unnecessarily delay the provision of transmission services.6
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\6\65 FERC at 63,012.
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Nonetheless, in subsequent cases, parties have continued to file
requests for rehearings of proposed orders in section 211 proceedings.
Using Commission time and resources, the Commission has responded to
these requests for rehearing and issued decisions finding that proposed
orders in section 211 proceedings made preliminary findings only, and
thus were not subject to rehearing. Consequently, the Commission
dismissed these requests for rehearing of the proposed orders without
prejudice.7
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\7\See Minnesota Municipal Power Agency v. Southern Minnesota
Power Agency, 67 FERC 61,075 at 61,206-07 (1994); Minnesota
Municipal Power Agency v. Northern States Power Company, 66 FERC
61,323 at 62,034 (1994).
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Most recently, in El Paso Electric Company and Central and South
West Services, Inc., as agent for Public Service Company of Oklahoma,
West Texas Utilities Company, Southwestern Electric Power Company, and
Central Power and Light Company v. Southwestern Public Service
Company,8 the Commission again addressed parties' inappropriate
filing of a request for rehearing of a proposed order for transmission
services under section 211. Consistent with the earlier orders, the
Commission dismissed the request for rehearing without prejudice noting
that the proposed order made preliminary findings only, and that a
request for rehearing would be appropriate only after the Commission
issued a final order. Moreover, the Commission added that
notwithstanding many previous, specific admonishments that a request
for rehearing of a proposed order for transmission services under
section 211 is improper, it has had to repeatedly issue orders
dismissing such requests. Accordingly, in the interest of
administrative efficiency, the Commission authorized the Secretary, or
the Secretary's designee, as of the date of the issuance of the order,
to reject requests for rehearing and requests for modification of a
proposed order under section 211. However, the Commission indicated
that it would entertain legitimate motions for clarification of a
proposed order as long as they were not combined with requests for
rehearing and/or requests for modification of a proposed order issued
in a proceeding under section 211.9
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\8\68 FERC ________ (1994) (El Paso).
\9\Id. at ________, slip op. at 5-6.
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Although we have consistently attempted to forestall the
inappropriate filing of a request for rehearing or modification of a
proposed order under section 211, parties continue to make these
improper filings. Therefore, as we noted in El Paso, in the interests
of administrative efficiency the Commission will not review these
requests or issue decisions; rather the Secretary, or the Secretary's
designee, will be authorized to reject without prejudice such requests
outright.
Moreover, since the language of FPA section 212(c)(1) is also
applicable to section 210 proceedings, we will also delegate to the
Secretary, or the Secretary's designee, the same authority to dismiss
without prejudice the same type of pleadings in section 210
proceedings.
III. Conclusion
As explained above, in the interests of administrative efficiency,
we will amend 18 CFR 375.302 to add that the Secretary, or the
Secretary's designee, is authorized to reject without prejudice
requests for rehearing and requests for modification filed in
proceedings under section 210 or section 211.
IV. Environmental Statement
Commission regulations require that an environmental assessment or
an environmental impact statement be prepared for any Commission action
that may have a significant adverse effect on the human
environment.10 The Commission has categorically excluded certain
actions from this requirement as not having a significant effect on the
human environment.11 No environmental consideration is necessary
for the promulgation of a rule that is clarifying, corrective, or
procedural.12 As explained above, this final rule is procedural
and ministerial in nature, and promotes internal administrative
efficiency by authorizing the Secretary, or the Secretary's designee,
to reject without prejudice certain filings in proceedings under
sections 210 and 211 of the FPA. Accordingly, no environmental
consideration is necessary.
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\1\0Regulations Implementing the National Environmental Policy
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs., Regulations Preambles 1986-90 30,783 (1987) (codified at 18
CFR part 380).
\1\118 CFR 380.4.
\1\218 CFR 380.4(a)(2)(ii).
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V. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act13 requires rulemakings either
to contain a description and analysis of the impact the rule will have
on small entities or a certification that the rule will not have a
substantial economic impact on a substantial number of small entities.
Many, if not most, entities to which this rule would apply do not fall
within the definition of small entities.14 Furthermore, this rule
does not establish any new reporting requirements and is merely
procedural. Accordingly, no regulatory flexibility analysis is
required.
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\1\35 U.S.C. 601-612.
\1\4See 5 U.S.C. 601(3), citing to section 3 of the Small
Business Act, 15 U.S.C. 632, which defines ``small business
concern'' as a business that is independently owned and operated and
that is not dominant in its field of operation.
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VI. Information Collection Statement
The Office of Management and Budget's (OMB) regulations15
require that OMB approve certain information collection requirements
imposed by the agency's rule. However, this rule neither contains new
information collection requirements nor modifies any existing
information collection requirements in the Commission's regulations.
Therefore, this final rule is not subject to OMB approval.
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\1\55 CFR 1320.
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VII. Administrative Findings and Effective Date
The Administrative Procedure Act (APA)16 requires rulemakings
to be published in the Federal Register. The APA also mandates that an
opportunity for comment be provided when an agency promulgates
regulations. However, notice and comment are not required under the APA
when the agency for good cause finds that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.17 The Commission finds that notice and comment are
unnecessary for this rulemaking. As explained above, this final rule is
procedural and ministerial in nature and is being promulgated to
advance internal administrative efficiency. The Commission is merely
amending 18 CFR 375.302 to permit delegation to the Secretary, or the
Secretary's designee, to reject without prejudice certain filings in
proceedings under section 210 or section 211 of the FPA.
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\1\65 U.S.C. 551-559.
\1\75 U.S.C. 553(B).
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The Commission will make this rule effective thirty days after the
date of publication in the Federal Register.
List of Subjects in 18 CFR Part 375
Electric power rates, electric utilities, reporting and record
keeping requirements.
By the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, the Commission amends Part 375,
Chapter I, Title 18 of the Code of Federal Regulations as set forth
below.
PART 375--[AMENDED]
1. The authority citation for Part 375 continues to read as
follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-828r, 791a note, 2601-2645; 42 U.S.C. 7101-7532.
2. Section 375.302 is amended by adding paragraphs (t) and (u) to
read as follows:
Sec. 375.302 Delegations to the Secretary.
* * * * *
(t) Reject without prejudice all requests for rehearing and
requests for modification of a proposed order issued in a proceeding
under section 210 or section 211 of the Federal Power Act, 16 U.S.C.
824i, 824j.
(u) Reject without prejudice all motions for clarification that are
combined with requests for rehearing and/or requests for modification
of a proposed order issued in a proceeding under section 210 or section
211 of the Federal Power Act, 16 U.S.C. 824i, 824j.
[FR Doc. 94-26284 Filed 10-21-94; 8:45 am]
BILLING CODE 6717-01-P
