[Federal Register Volume 63, Number 186 (Friday, September 25, 1998)]
[Proposed Rules]
[Pages 51312-51322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25373]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 385
[Docket No. RM98-1-000]
Regulations Governing Off-the-Record Communications
September 16, 1998.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
proposing to revise its rules concerning communications between persons
outside the Commission and the Commission and its employees. The
proposed regulations are designed to clarify ambiguities in the
existing ex parte rules and to provide better guidance on what
communications to and from the Commission are permissible and what
communications are prohibited.
DATES: Written comments are due on or before December 24, 1998.
ADDRESSES: File comments with the Office of the Secretary, Federal
Energy Regulatory Commission, 888 First Street, N.E., Washington, DC
20426.
FOR FURTHER INFORMATION CONTACT: David R. Dickey, Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street, N.E.,
Washington, DC 20426, (202) 208-2140.
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 -1a -copy the contents
of this document during normal business hours in the Public Reference
Room at 888 First Street, N.E., Room 2A, Washington, DC 20426.
The Commission Issuance Posting System (CIPS) provides access to
the texts of formal documents issued by the
[[Page 51313]]
Commission. CIPS can be accessed via Internet through FERC's Homepage
(http://www.ferc.fed.us) using the CIPS Link or the Energy Information
Online icon. The full text of this document will be available on CIPS
in ASCII and WordPerfect 6.1 format. CIPS is also available through the
Commission's electronic bulletin board service at no charge to the user
and may be accessed using a personal computer with a modem by dialing
(202) 208-1397, if dialing locally, or 1-800-856-3920, if dialing long
distance. To access CIPS, set your communications software to 19200,
14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex, no
parity, 8 data bits and 1 stop bit. User assistance is available at
(202) 208-2474 or by E-Mail to [email protected]
This document is also available through the Commission's Records
and Information Management System (RIMS), an electronic storage and
retrieval system of documents submitted to and issued by the Commission
after November 16, 1981. Documents from November 1995 to the present
can be viewed and printed. RIMS is available in the Public Reference
Room or remotely via Internet through FERC's Homepage using the RIMS
link or the Energy Information Online icon. User assistance is
available at (202) 208-2222, or by E-Mail to [email protected]
Finally, the complete text 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.
I. Introduction
The Federal Energy Regulatory Commission (Commission or FERC)
proposes to revise its rules governing communications with
Commissioners and Commission employees. The proposed revisions are
designed to permit fully informed decision making while at the same
time ensuring the integrity of the Commission's decision making
process. The proposed revisions are intended specifically to provide
clearer direction both to the Commission and its staff and persons
outside the Commission on the ground rules for communication. In
keeping with the Commission's outreach goals, specific changes are
proposed to enhance the ability of the Commission to interact with
other regulatory agencies and the public.
II. Background
The amendments added to the Administrative Procedure Act (APA) in
1976 by the Government in the Sunshine Act provided a general statement
as to the limitations and procedures governing ex parte communications
in matters that statutorily require an on the record
hearing.1 Except as otherwise authorized by law, the APA
prohibits ex parte communications relevant to the merits of a
proceeding between employees involved in the decisional process of a
proceeding and interested persons outside the agency.2 The
prohibitions on ex parte communications have two primary underlying
premises: (1) a hearing is not fair when one party has private access
to the decision maker and can present evidence or argument that other
parties have no opportunity to rebut; 3 and (2) reliance on
``secret'' evidence may foreclose meaningful judicial
review.4 The 1976 Act instructed agencies to issue
regulations necessary to implement the APA's requirements.5
Shortly thereafter, the Federal Power Commission implemented ex parte
regulations based on the APA's guidance.6 This rule, Rule
2201, applies to all covered proceedings before the Commission except
those involving oil pipelines.7 The Commission has a second
ex parte rule, Rule 1415, which was originally developed by the
Interstate Commerce Commission (ICC) and which applies only to oil
pipeline proceedings.8/ Although directed to the same end--
both prohibit certain ex parte communications and both describe methods
for public disclosure of such communications--they differ in
significant details.
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\1\ 5 U.S.C. 551-557. Section 557 applies ``according to the
provisions thereof, when a hearing is required to be conducted in
accordance with section 556 of this title.'' Section 556 applies to
hearings required by sections 553 and 554.
\2\ See 5 U.S.C. 557(d)(1).
\3\ WKAT, Inc. v. FCC, 296 F.2d 375 (D.C. Cir.), cert. denied,
360 U.S. 841 (1961).
\4\ Home Box Office, Inc. v. FCC, 567 F.2d 9, 54 (D.C. Cir.),
cert. denied, 434 U.S. 829 (1977); U.S. Lines v. Federal Maritime
Commission, 584 F.2d 519, 541-542 (D.C. Cir. 1978).
\5\ 5 USC 559.
\6\ FPC Order No. 562, 42 FR 14701, (March 16, 1977).
\7\ Proposed 18 CFR 385.2201.
\8\ 18 CFR 385.1415.
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III. Discussion
The problems with the existing regulations were recognized by the
participants in the Commission's 1992 Public Conference on ex parte
issues, where a general consensus developed favoring a revised rule
that would provide the Commission, the industry, and the public with a
clearer statement of what communications are prohibited and when the
prohibitions apply.9 In sum, the current regulations have
been viewed as needlessly complex and confusing, and therefore provide
inadequate guidance to Commission officials and the public. For
example, as noted above, the Commission currently has two ex parte
rules while it clearly has need for only one. Accordingly, the proposed
rule would eliminate Rule 1415 in its entirety and provide that revised
Rule 2201 will apply to oil pipeline cases in addition to other
proceedings.
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\9\ See, e.g., the comments filed by Interstate Natural Gas
Association, the Industrial Groups, Pacific Gas Transmission
Company, and Environmental Action in Docket No. RM91-10-000. Notice
of Public Conference, 57 FR 10622 (Mar. 27, 1992); 58 FERC para.
61,320 (Mar. 20, 1992).
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Moreover, the current regulations fail to reflect adequately the
APA ex parte prohibitions. For example, current Rule 2201 covers
communications from someone outside the Commission to a Commissioner,
Administrative Law Judge, or advisory staff, while the APA prohibitions
cover communications in both directions.
Finally, the Commission staff recently undertook an initiative,
known as ``FERC First,'' to study the Commission's current and
anticipated future missions and functions, identify the internal and
external obstacles to carrying out those missions and functions
efficiently and effectively, and, to the extent practicable, design
processes enhancing the effectiveness of the Commission's operations.
The FERC First team recognized the need to strengthen the Commission's
relationships with Congress, federal and state agencies and other
interested persons. Discussions undertaken as part of Commission
staff's reengineering effort, indicated that many people feel that
changes to the current ex parte rule could enhance the Commission's
operations.
For all of the above reasons, we believe that the existing ex parte
rule should be revised to help achieve our goals of improving
communications while at the same time ensuring the integrity of the
Commission's decision making.
The significant proposed revisions are discussed below. The
proposed text for Rule 2201 is set out in full at the end of this
notice.
[[Page 51314]]
A. Prohibitions on Communications Relevant to the Merits of a Contested
Proceeding.
Under the proposed regulations, the prohibitions would apply to
``proceedings involving a party or parties'',10 defined as
all docketed 11 Commission matters except investigations
under Part 1b of the Commission's regulations. Non-covered proceedings
would include informal (i.e., notice and comment) rulemaking
proceedings, and any other proceeding not having a party or parties,
and public technical, policy, and other conferences intended to inform
the public or solicit their comments on issues of interest to the
Commission and the industry.
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\10\ The definition of ``party'' may be found at 18 CFR 385.102.
\11\ ``Docketed'' matters include those bearing a ``docket''
number and those bearing a ``project'' number.
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The proposed regulations would continue to prohibit ``off-the-
record communications relevant to the merits of a Commission
proceeding'' in covered proceedings. The term ``relevant to the
merits'' is taken directly from the APA provisions and its definition
is drawn in substantial part from the legislative history of those
provisions.12 The proposed regulations would define
``relevant to the merits'' to mean capable of affecting the outcome of
a proceeding, or of influencing, or providing an opportunity to
influence, a decision on any substantive issue. Purely procedural
inquiries or status requests generally will not have an effect on the
outcome of a case or on the decision on any substantive issue. Under
the proposed rule, communications would not be characterized as status
requests, however, where the request states or implies a preference for
a particular party or position, advocates expedited action or action by
a certain date, or ``is otherwise intended, directly or indirectly, to
address the merits or influence the outcome of a proceeding.''
13
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\12\ See H.R. Rep. No. 880 (Part I), 94th Cong., 2d Sess. at 20,
reprinted in 1976 U.S.C.C.A.N. at 2202: The [statute] prohibits an
ex parte communication only when it is ``relative to the merits of
the proceeding.'' This phrase is intended to be construed broadly
and to include more than the phrase ``fact in issue'' currently used
in the Administrative Procedure Act. The phrase excludes procedural
inquiries, such as requests for status reports, which will not have
an effect on the way the case is decided. It excludes general
background discussions about an entire industry which do not
directly relate to specific agency adjudication involving a member
of that industry, or to formal rulemaking involving the industry as
a whole. It is not the intent of this provision to cut an agency off
from general information about an industry that an agency needs to
exercise its regulatory responsibilities. So long as the
communication containing such data does not discuss the specific
merits of a pending adjudication it is not affected by this section.
\13\ See Proposed 18 CFR 2201((c)(6).
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Communications relating to purely procedural inquiries, such as how
to intervene in a proceeding, the number of days before a responsive
filing is due, or the number of copies that must be provided for a
required filing are permitted. However, even some communications that
appear to be procedural, in that they relate to how a proceeding is
conducted, also may be capable of influencing the result on the
substantive issues. These include communications about whether to hold
a hearing and, if so, what type of hearing, and communications
regarding the admissibility of evidence or the timing of a decision,
since when the Commission acts can be highly relevant to the merits of
the proceeding.14 Requests and advocacy of positions
concerning such matters, especially by parties in a proceeding, should
be presented on the record and in compliance with the Commission's
procedural rules governing the format and service of pleadings.
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\14\ But c.f., Gulf Oil Corp. v. Federal Power Commission, 563
F.2d 588, 611 (3rd Cir. 1977) cert. denied, 434 U.S. 1062 (1978)
(where Congressional communications are directed not at the agency's
decision on the merits but at accelerating the disposition and
enforcement of pertinent regulations, such legislative conduct does
not affect the fairness of the agency's proceedings).
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The proposed regulations are intended to apply to communications
between decisional employees and persons outside the Commission without
regard to who initiated the communication. Thus, for example, if a
decisional Commission employee initiates a covered communication with a
person outside the Commission, the employee may thereby be providing
that person the opportunity to influence a decision on any substantive
issue. The prohibitions apply both to oral and to written
communications. The term ``written communications'' as used in the
proposed rule extends to electronic communications (e.g., e-mail).
Additionally, the APA ex parte prohibitions apply essentially to
adjudications and similar cases required by statute to be decided on
the record after an opportunity for hearing. Courts generally have
treated rules barring private communications as a basic element of a
fair hearing--whether an APA-type oral evidentiary hearing or one
involving ``paper'' exhibits and pleadings--in any case involving
competing private claims to a valuable privilege or
benefit.15 The Commission's existing Rule 2201, and the
proposed rule, extends the prohibitions to ``contested on-the-record''
proceedings required to be decided on the record of a Commission
hearing, regardless of whether the hearing is required by statute, the
Constitution, a Commission regulation, or an order in a particular
case. Rule 1415 (applicable to oil pipeline cases) specifies that the
rule covers both oral hearings and the ``taking of evidence by modified
procedure,'' a reference to a ``paper hearing'' procedure, and this
clarification is made in the proposed revisions to Rule
2201.16
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\15\ Sangamon Valley Television Corp. v. United States, 269 F.2d
221 (D.C. Cir. 1959); and Sierra Club v. Costle, 657 F.2d 298, 400
(D.C. Cir. 1981).
\16\ See proposed Rule 18 CFR 385.2201(c)(4).
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The existing rule further defines a proceeding as contested if a
petition or notice to intervene in opposition has been filed. The
explicit requirement that the proceeding be ``contested'' before ex
parte rules attach reflects the notion that procedural requirements and
constraints originally developed to preserve the rights of parties in
an adjudication have no place in an administrative proceeding in which
there is no ``contest'' comparable to the controversy in a judicial
case. Accordingly, as discussed below, the proposed rule retains the
triggering date of the existing rule, and off-the-record communications
will not be prohibited until such time as a protest or intervention in
opposition to an application has been filed.
B. When Communications Are Prohibited
The proposed regulations would provide a clear-cut time frame for
beginning and ending the prohibitions. The restrictions on
communications would be inapplicable to off-the-record communications
before the commencement of a proceeding. When there is no pending
proceeding, there can be no barred communications pertaining to a
proceeding. Accordingly, the prohibitions would take effect at the time
of the filing with the Commission of a complaint, or a protest or
intervention in opposition to a proceeding initiated by a person
outside the Commission. (The prohibitions on off-the-record
communications would not be triggered by a premature filing.)
We note that the Commission often receives filings that do not
specify whether a filed intervention is actually protesting or opposing
a requested Commission action, or was filed merely to support the
applicant or to allow the filer to be placed on a service list. The
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Commission will consider interventions as opposing an application, and
triggering the proposed rule's prohibitions, when they are expressly
styled as such. Additionally, based on arguments or issues raised in
the document, the Commission may consider a filing not styled as an
intervention in opposition as nonetheless opposing the application,
thus triggering the prohibitions contained in this proposed rule.
However, the Commission will not treat as opposing an application those
interventions that appear to have been filed solely to request that the
filer be placed on the service list, or to preserve the opportunity to
present oral argument should the Commission order a hearing to be held.
The prohibitions would remain in force until final disposition of
the proceeding by the Commission, or until the opposition, complaint or
protest is withdrawn. Final disposition refers to the final Commission
decision and the rehearing of that decision, where applicable. This
means the prohibitions would continue until the Commission has acted on
petitions for rehearing, rehearing has been denied by operation of law,
the time for petitions for rehearing has passed and none has been
filed, an application is withdrawn, or, in matters where there is no
right to rehearing (e.g., DOE remedial order cases), when the
Commission issues its final decision. Where an administrative law
judge's initial decision becomes final by operation of law because no
party has filed exceptions, and the Commission has taken no action to
stay the effectiveness of an initial decision under section 375.712 of
our regulations,17 final disposition of the case will be
assumed to have occurred at that point. If a rehearing petition is
filed, notwithstanding a party's failure to file exceptions, the
prohibitions would apply to the rehearing process.18
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\17\ 18 CFR 375.712.
\18\ See 18 CFR 385.709(d). Where a document initiating a
proceeding is filed but subsequently rejected (see 18 CFR 4.32 and
385.2001), the document is deemed not to have been filed with the
Commission. Accordingly, until the document has been resubmitted, no
proceeding is pending before the Commission and the proposed Rule
2201 prohibitions would not apply.
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After final Commission disposition, the constraints on
communication would cease to apply even if judicial review of the case
has been sought. If a court remands the proceeding to the Commission
following judicial review, the prohibitions would attach once more at
the time the Court issues its mandate.
C. Who Is Covered
The proposed regulations would prohibit off-the-record
communications between a person outside the Commission and a
``decisional employee.'' The definition of ``person'' as presently
defined in Rule 102(d) arguably includes Commission staff.19
Accordingly, for the purposes of this proposed Rule 2201, ``person''
would be defined as any person, other than an employee of the
Commission. ``Decisional employee'' would be defined, as under existing
Rule 2201, to mean a Commissioner, a member of his or her personal
staff, an administrative law judge, or any other employee of the
Commission who is or may be reasonably expected to be involved in the
decisional process of a particular Commission proceeding. The revised
definition is intended to clarify that the term does not include: (1)
members of the Commission's trial staff, (2) a settlement judge
appointed under existing Rule 603 (who is not also the presiding judge
in the proceeding) 20, (3) a neutral (other than an
arbitrator) in an alternative dispute resolution proceeding, and (4) an
employee designated as non-decisional for a particular case. The
revised definition, however, has been expanded to clarify that the term
includes contractors involved in the Commission's decisional
process.21
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\19\ 18 CFR 385.102(d).
\20\ 18 CFR 385.603.
\21\ For purposes of the proposed rule, ``contractor'' means a
direct Commission contractor or a third-party contractor subject to
Commission supervision and control.
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Members of the trial staff (or their supervisors in the conduct of
the trial) are not decisional employees because they are barred by the
separation of functions requirements from serving as advisors to the
Commission in the same proceeding.22 For the same reason,
any employee designated by the Commission to be non-decisional for a
particular case is subject to similar separation of functions
requirements and would not be involved in the Commission's decisional
process. The prohibitions also would be inapplicable to communications
with a settlement judge because settlement judges are not decisional
employees and communications relating solely to settlement are not
viewed as relating to the merits for purposes of restrictions on off-
the-record communications.23
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\22\ See 18 CFR 385.2202.
\23\ Louisiana Ass'n of Independent Producers and Royalty Owners
v. FERC, 958 F.2d 1101, 1113 (D.C. Cir. 1992) (In a settlement or in
a purely procedural proceeding there are no issues to be decided
upon an open record and, therefore, in communicating with a
settlement judge, the parties do not engage in ``surreptitious
efforts'' to influence an official charged with the duty of deciding
contested issues).
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D. Non-Covered Proceedings
1. Enforcement Investigations Not Covered
Under the terms of part 1b of the Commission's regulations,
enforcement investigations do not adjudicate any person's rights and
have no parties.24 Moreover, section 385.101(b)(1) of the
Commission's regulations provides that the Commission's Rules of
Practice and Procedure, including existing Rule 2201, do not apply to
part 1b investigations. The proposed regulations would clarify that the
prohibitions will continue to be inapplicable to such
investigations.25 The Commission recently proposed
amendments to part 1b and to its Rule 206 complaints procedures
26 that added provisions allowing, inter alia, non-public,
anonymous communications between the Commission's Enforcement Hotline
Staff. We note that these communications are permitted because there
are no parties to such investigations. However, once a matter being
investigated is set for hearing, the prohibitions against off-the-
record communications would apply to that proceeding.
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\24\ 18 CFR Part 385.101(b)(1).
\25\ 18 CFR Part 1(b).
\26\ See Complaint Procedures, 63 FR 41,982 (Aug. 6, 1998),
(Notice of Proposed Rulemaking).
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2. Rulemaking Proceedings Not Covered
Similarly, neither the APA ex parte prohibitions nor the
Commission's existing ex parte regulations apply to informal, notice
and comment, rulemaking proceedings. Communications with outside
sources of information are proper and often necessary to the full
development of a rulemaking.27
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\27\ We note, however, that the information available to support
a final rule upon judicial review is generally limited to that found
in the final rule itself and material that has been placed in the
associated rulemaking record.
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E. Exempt Communications
The proposed rule sets out ten exemptions from the general
prohibitions against off-the-record communications. These exemptions
are intended to be independent of one another. Accordingly, if any
individual exemption applies to the circumstances of a particular
proceeding, off-the-record communications will be permitted subject to
any disclosure requirements. For example, under proposed exemption 18
CFR 385.2201(d)(8), a Federal agency with concurrent jurisdiction that
is a party to a
[[Page 51316]]
proceeding may not participate in off-the-record communications
relating to that proceeding. Yet, that party agency may freely
participate in the development of an environmental assessment or
environmental impact statement in accordance with proposed exemption 18
CFR 385.2201(d)(9).
We note that while the proposed rule seeks to establish clear
boundaries between prohibited and permitted communications, the
Commission and Commission staff would, of course, retain the discretion
not to engage in permitted discussions if in their judgment such
communications would create the appearance of an impropriety or
otherwise seem inconsistent with the best interests of the
Commission.28
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\28\ Proposed Rule 18 CFR 385.2201(i)(2).
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1. Communications Expressly Permitted by Rule or Order
As a general principle the APA recognizes that its prohibitions
against off-the-record communications do not include those ``required
for the disposition of ex parte matters as authorized by law.''
29 Existing 18 CFR 385.2201(b)(1) also allows the
Commission, by rule or order, to modify any of the provisions of Rule
2201, or Rule 1415, as they apply to all or part of a proceeding, to
the extent permitted by law. The proposed rule contains a similar
provision without the reference to Rule 1415.
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\29\ 5 U.S.C. 557(d)(1). The legislative history of this section
indicates that it was envisioned as allowing ex parte requests for
subpoenas and other matters that might be resolved by the decisional
authority on an ex parte basis. See 1977 U.S.C.C.A.N. at 2201.
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The proposed regulations track the legislative history in
permitting general background or broad policy discussions about an
industry or a segment of an industry where these discussions do not
relate to the specific merits of a particular pending case. General
discussions about industry conditions or broad policies provide useful
information important to effective regulation. Restrictions on off-the-
record communications were not intended to cut an agency off from the
general information it needs to carry out its regulatory
responsibilities.30 Such general discussions are permitted
even where they may touch on an issue that also happens to be before
the Commission in the specific factual context of an individual case.
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\30\ H.R. Rep. No. 880 (Part 1), 94th Cong., 2d Sess. at 20,
reprinted in 1976 U.S.C.C.A.N. at 2202.
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However, where the discussion is carried on in the context of a
particular case, the prohibitions extend to policy and legal issues as
well as to issues of fact. Moreover, where a general discussion relates
to the specific merits of a pending case (where, for example, the
discussion turns on the specific facts of the case), the prohibitions
would apply even if the case is not mentioned by name during the
discussion.
2. Communications Related to Emergencies
Subject to a disclosure requirement, the proposed rule would allow
the Commission to engage in off-the-record communications with regard
to emergencies. This provision would allow the Commission to respond to
emergencies such as earthquakes, floods, severe weather conditions,
fires, or explosions that damage or threaten to damage FERC-regulated
facilities, or significant market anomalies that undermine the ability
of FERC-regulated entities to deliver energy. Written communications,
or summaries of oral communications, taking place during an emergency
would be delivered to the Secretary to be noticed and placed in the
public file of the proceeding(s) most readily identifiable with
facilities affected by the emergency. The Commission invites comments
on this proposal. The Commission is particularly interested in comments
on whether, for example, a significant but temporary economic impact on
regional markets may properly constitute an emergency that, subject to
the disclosure requirements described above, would appropriately permit
the Commission to conduct off-the-record communications to address
those issues expeditiously.
3. Communications Concerning Published or Widely Disseminated Public
Information Permitted
The Commission is free to take official notice of its own decisions
as well as the published decisions of judicial and other administrative
tribunals. In addition, since the basic concern of the prohibitions is
with private communications and ``secret'' evidence, Commissioners and
Commission staff may freely consult legal, economic, engineering and
other technical or scholarly journals. Material appearing in the trade
press, the general news media, and on publicly available Internet sites
is also not subject to the prohibitions.31 Similarly,
speeches and statements made to a large audience at a public forum will
rarely raise the types of concerns that the proposed rule is intended
to address.
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\31\ While materials in scholarly journals, the news media, and
on the Internet are not communications prohibited by the proposed
rule, this does not necessarily mean that they are accurate, valid
or persuasive in all circumstances. Under Commission regulations,
even officially noticeable facts are subject to rebuttal at the
request of any participant. 18 CFR 385.508(d).
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Communications relating to such published or other widely
disseminated public information would be permitted to the extent that
they do not seek to determine how precedent might apply to fact-
specific issues in a pending proceeding. Thus, the Commission and the
staff would be permitted to explain events such as actions that courts
or the Commission have already taken, and to describe objectively
issues before the Commission or the positions of the parties regarding
those issues.
4. Pre-filing Consultations Permitted
Pre-filing communications would be permitted under the proposed
rule. Pre-filing consultations are often useful in educating applicants
as to the appropriate format, content, and form that an application or
other filing should take. Such consultations can therefore improve the
chances that filings, once made, will be ready for evaluation on the
merits. The value of pre-filing consultations is explicitly recognized
in Commission regulations, which permit such informal consultations in
connection with pipeline certificate applications 32 as well
as public utility and natural gas rate schedules and tariff
filings.33 Other specific examples of permitted pre-filing
communications would include consultations under sections 4.34(i),
4.38, and 16.8 of our regulations taking place before the filing with
the Commission of an application for certain hydropower licenses,
exemptions or license amendments.34
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\32\ 18 CFR 157.14(a).
\33\ 18 CFR 35.6 and 154.25.
\34\ See 18 CFR 4.34, 4.38 and 16.8.
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Our alternative hydropower licensing procedures permit establishing
pre-filing communications protocols.35 Under these
procedures, an applicant must demonstrate that it has made an effort to
contact all resource agencies, citizens groups and others that may be
affected by the project, and that a consensus exists for the
participants to communicate off-the-record under a communications
protocol. The alternative procedures may be used only upon Commission
approval and must include a disclosure requirement providing that
information specified in the protocol will be placed in the public
record. The Commission invites comments on whether off-the-record
communications, occurring under
[[Page 51317]]
protocols entered into under the alternative procedures during the pre-
filing stages, should be permitted to continue after the application is
formally filed with the Secretary. Is there a need to renew the
consensus in order for the communications protocol to survive? Should
the protocol remain in effect following an application absent formal
opposition by a party (whether an existing or new participant)?
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\35\ See Docket No. RM95-16, Order No. 596, Regulations for the
Licensing of Hydroelectric Projects, 62 FR 59802 (Nov. 5, 1997), 81
FERC para. 61,103 (October 29, 1997).
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5. Communications Agreed to by the Parties Permitted
Proposed 18 CFR 385.2201(b)(5) would retain the existing provision
in 18 CFR 385.2201(b)(6) permitting communications which all the
parties agree may be made without regard to communications constraints.
The proposed regulations would retain the current policy of imposing no
prohibition on communications during a meeting or conference noticed
and open to all parties in a proceeding. The fundamental concern posed
by off-the-record communications is with private or secret
communications. The right to a fair hearing is denied when one party or
interest has private access to the decision maker and can present
evidence or argument that other parties have no opportunity to
rebut.36 This concern is not present in meetings which all
parties have an opportunity to attend.
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\36\ WKAT, Inc. v. FCC, 296 F.2d at 383.
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6. Written Communications with Non-party Elected Officials Permitted
Proposed 18 CFR 385.2201(d)(6) would permit written communications
from non-party elected officials acting in their official
representative capacities. The Commission receives numerous letters
from Federal and state elected officials requesting expedition or
forwarding correspondence from constituents.37 This proposal
would treat such letters as permitted communications, subject to a
disclosure requirement under which the communications would be placed
in the public record and noticed, providing an opportunity for review
and comment, thus mitigating any potential due process concerns.
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\37\ The legislative history of the APA makes clear that members
of Congress are ``interested persons'' subject to the APA
restrictions on communications. It also indicates, however, that
this prohibition is not intended to prohibit routine inquiries or
referrals of constituent correspondence. See H.R. Rep. No. 880 (Part
1), 94th Cong., 2d Sess at 21-22, reprinted in 1976 U.S.C.C.A.N. at
2203.
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7. Certain Staff Communications Concerning Compliance Matters Permitted
We are concerned with the fact that Commission staff frequently is
restrained from being able to communicate with regulated entities and
others regarding compliance with the requirements of Commission orders
pending on rehearing. Such situations can lead to regulatory delay in
compliance.
Most post-licensing compliance takes place after all the underlying
issues have been resolved. Therefore, the proposed restrictions would
not apply to conversations or exchanges of information during
Commission staff safety inspections, post-licensing or post-
certification environmental monitoring or compliance, or routine staff
audits of company books or records when the inspections, monitoring, or
audits are not undertaken in connection with an ongoing licensing or
certificate case or other specific pending proceeding. Proposed 18 CFR
385.2201(d)(7) would make clear that limited off-the-record
communications also would be permitted where, for example, a licensee
is undertaking a good faith compliance effort, while pursuing rehearing
on the underlying order. Only discussions concerning the mechanics of
compliance, as opposed to the merits of the underlying order, would be
permitted.
For example, in a hydropower licensing context, we do not believe
that post-licensing communications on compliance with dam safety
matters should be encumbered by the fact that a party has sought
rehearing on the underlying licensing order.
8. Communications with Other Federal, State and Local Agencies
Existing 18 CFR 385.2201(b)(1) does not prohibit communications
from interceders who are Federal, state or local agencies that have no
official interest in and whose official duties are not affected by the
outcome of a covered proceeding to which the communication relates.
Because many of the outside agencies with which the Commission works do
have an official interest in the proceeding to which interagency
communications relate, the proposed rule would permit some
communications with Federal, state, or local agencies that are not
parties in the relevant Commission proceeding. This exemption would
apply to communications involving: (1) a request for information by the
Commission or Commission staff; or (2) a matter over which the other
Federal, state, or local agency and the Commission share regulatory
jurisdiction, including authority to impose or recommend licensing
conditions.
The partial exemption recognizes that, except where the other
Federal, state, or local agency is directly involved in a Commission
case as a party, the public interest favors a free flow of information
between government agencies with shared jurisdiction. Where agencies
are charged with shared jurisdiction and regulatory responsibilities, a
cohesive government policy can best be developed and implemented
through communication, cooperation and collaboration between agencies
and their staff that sometimes can take place most effectively off-the-
record.38 To ensure that such communications do not
compromise the procedural rights of the parties or the integrity of the
Commission's decisional record, proposed 18 CFR 385.2201(g)(1)(ii)
would require that actual information obtained through off-the-record
communications with Federal, state or local agencies, and relied upon
by the Commission in reaching its decision, be placed in the public
record to allow the public to discern the basis of the Commission's
decision.
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\38\ Similar exclusions appear in the Federal Communications
Commission's ex parte regulations. See 47 CFR 1.1204(b)(5), (7) and
(8).
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9. Communications Relating to Environmental Documentation
The Commission is interested in establishing rules that will permit
more effective cooperation with other agencies, applicants, and the
public in developing documentation, consistent with the National
Environmental Policy Act of 1969 (NEPA),39 that supports
decisions made by the Commission. Accordingly, the Commission proposes
to exclude from the coverage of the rule all off-the-record
communications required to comply with the NEPA and implementing
regulations issued by the Council on Environmental Quality (CEQ)
40 and the Commission.41
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\39\ National Environmental Policy Act of 1969, as amended, 42
U.S.C. 4321 et seq.
\40\ 40 CFR 1500-1508.
\41\ 18 CFR Part 380.
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The CEQ's regulations describe an open and public NEPA process
leading up to the issuance of an environmental document that includes
opportunity for public comment and participation, and record
development akin to the procedures used in informal rulemaking. For
example, in cases necessitating the preparation of an Environmental
Impact Statement (EIS), CEQ rules describe a public scoping requirement
that may include noticed,
[[Page 51318]]
public, on-the-record meetings,42 and requirements that all
substantive comments (whether written or oral) received on the draft
statement (or summaries thereof where the response has been especially
voluminous) should be addressed in the final statement whether or not
they are relied upon by the agency.43 Comments or
communications received after issuance of the final EIS should be made
on-the-record or else they will be considered as prohibited
communications, unless they are exempt under another provision of this
rule.
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\42\ Scoping meetings convened by the Commission are frequently
transcribed by a court reporter. In the absence of a stenographic
report, the substance of significant communications taking place in
such meetings is memorialized, in writing, by Commission staff.
These documents are made available to the parties and placed in the
public record of the proceeding.
\43\ 40 CFR 1503.4(b).
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Just as with the development of an EIS, CEQ regulations provide
that, to the extent practicable, environmental agencies, the applicant,
environmental interest groups, and the public should be involved in the
process of crafting an environmental assessment (EA).44
However, the CEQ's regulations for preparation of an EA do not require
the same procedures to further public participation as those related
solely to EIS preparation.
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\44\ 40 CFR 1501.4.
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Based on our experience, a substantial majority of applications
requiring preparation of an EA are uncontested. Because the rule does
not apply to uncontested proceedings, communications undertaken in the
environmental review process for these proceedings may take place off-
the-record. However, this rule must address how off-the-record
communications should be handled in those cases where an application
requiring preparation of an EA is contested.
Accordingly, the Commission proposes, in cases that are contested,
to exempt from the coverage of the proposed rule those communications
relating to the preparation of an EA in cases where the Commission has
determined to solicit and address public comment. In this manner, we
believe that the Commission will have access to the information it
needs to make an informed decision, and the public will have the
requisite opportunity to participate in the process leading up to
issuance of an environmental assessment. We note that the ``final''
environmental assessment may in fact be incorporated in the
Commission's final order on the underlying action.
CEQ regulations require, to the fullest extent possible, that
Federal agencies integrate related surveys, required by other relevant
environmental review laws, into an EIS. Therefore, communications
necessary to assure compliance with all relevant statutes protecting
environmental, cultural and historic preservation concerns
45 also would be considered as excluded from the rule, if
they occur prior to the issuance of a completed EA or EIS. Thus, to the
extent that an applicant's compliance with these statutes is addressed
in a final EA or EIS associated with a particular proceeding, the
integrity of decisions arising under these statutes is protected by the
EIS process. Any communications taking place after the Commission's
issuance of the final environmental document would have to take place
on-the-record.46
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\45\ Such statutes include, but are not limited to, the Coastal
Zone Management Act of 1972, 16 U.S.C. 1451 et seq.; National
Historic Preservation Act of 1966, 16 U.S.C. 470 et seq.; Endangered
Species Act, 16 U.S.C. 1532 et seq.; and section 401 the Clean Water
Act, 33 U.S.C. 1341.
\46\ The Commission believes that it is not required to disclose
the specific details of communications with some cultural,
historical, and environmental protection agencies. Rather, in order
to protect the location or specific nature of an endangered
resource, a general description of the problem encountered and
proposed mitigative action, should be sufficient disclosure. This
rationale would apply whether the communication is addressed in an
environmental document, or as a separate part of the decisional
record.
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The Commission is mindful that other Federal and state resource
agencies with which we share jurisdiction may choose to intervene in
the same Commission proceeding in which they have been serving as a
cooperating agency 47 in the preparation of NEPA
documentation, and thus may have been made privy to non-public
predecisional information. The Commission invites comments on whether
cooperating agencies who are also parties should have access to
materials to which other parties lack access.
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\47\ The term ``cooperating agency'' is defined in the CEQ
regulations as an agency invited by the lead agency to participate
in the preparation of an environmental document. See 40 CFR 1501.6.
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10. Communications With Individual, Non-Party Landowners Permitted
Communications involving individual, non-party landowners, whose
property may be directly affected by a pending proceeding, would be
permitted, subject to a disclosure requirement. This exemption would
apply even after the issuance of a completed NEPA document. Consistent
with fundamental fairness, such individual landowners should be
permitted to comment without the need to incur the expense of formally
intervening in a proceeding. Any possible bias to the parties would be
mitigated by a requirement that communications with affected landowners
be placed in the record of the proceeding. This exception would not
apply, however, in the case of communications with a landowner
organization, or if an individual landowner is a party to the
proceeding.
F. Handling of Off-the-Record Communications
1. Prohibited Off-the-Record Communications
The proposed regulations differentiate between two types of off-
the-record communications: those prohibited by the regulations and
those permitted by the regulations. Commission decisional employees who
make or receive a prohibited communication would remain obligated to
deliver a copy of the communication, if written, or a summary of the
substance of any oral communication to the Secretary for submission
into the public record associated with, but separated from, the
decisional record in the proceeding. The Secretary will acknowledge
receipt of the prohibited communication by periodically issuing a
public notice that the agency has received a prohibited communication.
Such notice will list the author of the communication, date of receipt
by the Commission, and the docket number to which the communication
relates. Parties may seek an opportunity to respond on the record to
any facts or contentions made in a communication placed in the non-
decisional associated file. The Commission will grant such requests
only where it determines that the dictates of fairness so require. When
the request is granted, a copy of the off-the-record communication and
the permitted response will be made a part of the decisional record.
The proposed regulations depart from existing Rule 2201 (but not
the APA) in dropping the requirement that submissions in the public
file revealing barred communications must also be routinely served on
the parties to the relevant proceeding. The substitution of ``public''
notice is modeled on the approach used in the FCC's ex parte rule with
regard to permitted off-the-record communications.48 Given
that these prohibited communications are not part of the Commission's
decisional record, we believe there is no justification for imposing on
the Commission a burdensome requirement of service on the parties. We
note that the FCC's requirement is that its
[[Page 51319]]
Secretary publicly notice receipt of the off-the-record contact. Such
notice apparently is accomplished by a regular posting on the public
bulletin board, without resort to more formal Federal Register notice.
Considering that the communications in question are prohibited, we
believe the FCC's approach is valid and therefore propose that the
Commission adopt it.
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\48\ 47 CFR 1.1206(b).
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The Commission specifically invites comments on the use of public
notice in lieu of service.49 We also invite comments on
whether the Secretary should retain the prohibited communication and
response thereto in a file separate from the decisional file (i.e., the
associated file) or whether the incoming communication should be
immediately placed in the decisional file and noticed (in the Federal
Register) by the Secretary for public comment, and whether the latter
approach would provide adequate incentive to comply with the ex parte
rules.
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\49\ The Commission may also notice prohibited communications on
its Homepage (http://www.ferc.fed.us) and/or its official bulletin
board.
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The proposed regulations also would drop the requirement that
appears in existing Rule 2201, but not in Rule 1415 or the APA, for
``sworn'' statements summarizing oral communications. While sworn
statements may be appropriate in certain specific circumstances, the
proposed regulations follow the practice of most Federal agencies in
not imposing a general requirement of sworn statements.
2. Permitted Off-the-Record Communications
The due process principles underlying ex parte relate to preserving
the actual and apparent integrity of administrative processes and
creation of an agency decision-making record capable of judicial
review. Consistent with these principles, the Commission proposes to
permit certain off-the-record communications, but require that
documentation of such communications be placed in the decisional record
with public notice that the communication has been placed in the
record. This disclosure requirement may, however, create some
incremental burden on FERC staff relating to drafting memoranda or
notes on oral communications, and may chill communications that outside
parties would prefer not to disclose. The Commission invites comments
on whether the proposed rule attains an appropriate balance of these
interests.50/
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\50\ For communications under five exceptions we propose a
disclosure and notice requirement. These five exceptions--relating
to emergencies, communications by non-party public officials, agency
communications, the NEPA process, and landowner interests--might
otherwise be viewed as violative of the ex parte principles designed
to ensure the integrity of the Commission's proceedings if they were
not accompanied by alternative procedural assurances that the
Commission's records will be complete and that others will have a
fair opportunity to respond. Thus, we propose to require that
communications under these five areas be placed in the public
record.
In total, the Commission proposes to exempt ten categories of
communications from coverage under the proposed rule. The other
proposed exemptions relate to communications that may be viewed as
falling outside the penumbra of ex parte communications recognized
by the APA. Therefore, we do not require notice and a record of
their occurrences. These include communications permitted by law,
prefiling communications, communications that all parties agree may
take place off the record, procedural inquiries, communications
taking place in public fora, and communications relating to
compliance with Commission orders.
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The proposed rule would require the Secretary periodically to
notice receipt of these permitted communications, thereby notifying the
parties, in lieu of direct service, that the communications are in the
decisional record (or environmental record), and that they have the
right to file a response.
We propose that notice be accomplished through publicly posting
receipt of these communications. In addition, the notice might be
accessible through the Commission's Internet homepage. We request
comments on the sufficiency of this type of notice for publicizing
permitted off-the-record communications.
G. Sanctions
The proposed regulations expand the sanctions provision in existing
Rule 2201 in one respect. Added as a possible sanction for violations
of the proposed regulations is disqualification or suspension from
practice or appearance before the Commission. This sanction is already
available under Rule 2102 to deal with misconduct by those appearing
before the Commission.51/ It is included in the proposed
regulations to clarify that persons who engage in barred communications
are among those who may be subject to disqualification or suspension in
the appropriate circumstances. One purpose of the proposed rule is to
assure that the Commission's decisions are based only on information
available to all parties. Accordingly, this sanctions portion of the
rule would apply notwithstanding that the prohibited off-the-record
communication would be made publicly available under proposed 18 CFR
385.2201(f). As under existing Commission regulations, the proposed
sanctions provision would apply only to persons outside the Commission.
Commission employees who violate the proposed Rule 2201 prohibitions
would be subject to administrative disciplinary measures applicable to
Federal employees.
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\51\ 18 CFR 385.2102.
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IV. Regulatory Flexibility Certification Statement
The Regulatory Flexibility Act 52/ requires rulemakings
either to contain a description and analysis of the impact the rule
would have on small entities, or to certify that the rule will not have
a significant economic impact on a substantial number of small
entities. An analysis is not required if a proposed rule will not have
such an impact.53/
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\52\ 5 U.S.C. 601-612.
\53\ 5 U.S.C. 605(b).
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The regulations proposed in this rulemaking would revise the
Commission's Rules of Practice and Procedure dealing with certain off-
the-record communications. The Commission certifies that this proposed
rule will not have a significant economic impact on small entities.
V. 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.54/ The Commission has categorically excluded
certain actions from this requirement as not having a significant
effect on the human environment. Among these are proposals for rules
that are clarifying, corrective, or procedural, or that do not
substantively change the effect of the regulations being
amended.55/ The proposed rule falls under this exception;
consequently, no environmental consideration is necessary.
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\54\ Order No. 486, Regulations Implementing National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1997), FERC Stats. &
Regs., Regulations Preambles 1986-90 para. 30,783 (1997).
\55\ 18 CFR 380.4(a)(2)ii).
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VI. Information Collection Statement
The Office of Management and Budget's (OMB's) regulations require
that OMB approve certain information collection requirements imposed by
agency rules.56/ However, this proposed rule contains no
information collection requirements and therefore is not subject to OMB
approval.
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\56\ 5 CFR Part 1320.
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VII. Public Comment Procedures.
The Commission invites interested persons to submit written
comments on
[[Page 51320]]
this Notice of Proposed Rulemaking. An original and 14 copies of the
comments must be filed with the Commission no later than December 24,
1998.
Comments should be submitted to the Office of the Secretary,
Federal Energy Regulatory Commission, 888 1st Street, N.E., Washington,
DC 20426 and should refer to Docket No. RM98-1-000.
All written comments will be placed in the Commission's public
files and will be available for inspection in the Commission's Public
Reference Room at 888 1st Street, N.E., Washington, DC 20426, during
regular business hours.
List of Subjects in 18 CFR Part 385
Administrative practice and procedure, Electric power, Penalties,
Pipelines, and Reporting and recordkeeping requirements.
By direction of the Commission.
Linwood A. Watson, Jr.,
Acting Secretary.
In consideration of the foregoing, the Commission proposes to amend
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. 717-717w, 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. Section 385.101(b)(4) is revised to read as follows:
Sec. 385.101 Applicability (Rule 101).
* * * * *
* * *
(4) With respect to any oil pipeline filing or proceeding, the
modified procedures set forth in Rules 1404 and 1414 will apply.
* * * * *
3. Section 385.915 is revised to read as follows:
Sec. 385.915 Off-the-record communications (Rule 915).
The provisions of Rule 2201 (prohibited communications and other
communications requiring disclosure) apply to proceedings pursuant to
this subpart, commencing at the time the Secretary issues a proposed
remedial order under 10 CFR 205.192, an interim remedial order for
immediate compliance under 10 CFR 205.199D, or a proposed order of
disallowance under 10 CFR 205.199E.
4. Section 385.1012 is revised to read as follows:
Sec. 385.1012 Off-the-record communications (Rule 1012).
The provisions of Rule 2201 (prohibited communications and other
communications requiring disclosure) apply to proceedings pursuant to
this subpart, commencing at the time a petitioner files a petition for
review under Rule 1004 (commencement of proceedings).
Sec. 385.1415 [Removed]
5. Section 385.1415 is removed.
6. The Subpart V heading and Sec. 385.2201 are revised to read as
follows:
Subpart V--Prohibited Communications and Other Communications
Requiring Disclosure; Separation of Functions
Sec. 385.2201 Prohibited communications and other communications
requiring disclosure (Rule 2201).
(a) Purpose and scope. The purpose of this section is to govern
communications with the Commission in a manner that permits fully
informed decision making by the Commission while ensuring the integrity
and fairness of the Commission's decisional process. This rule shall
apply to all contested on-the-record proceedings except that the
Commission may, by rule or order, modify any provision of this subpart,
as it applies to all or part of a proceeding, to the extent permitted
by law.
(b) Prohibited off-the-record communications in proceedings
involving a party or parties. (1) Except as permitted in paragraph (d)
of this section, no person shall make or knowingly cause to be made to
any decisional employee an off-the-record communication relevant to the
merits of a contested on-the-record proceeding involving a party or
parties; and
(2) Except as permitted in paragraph (d) of this section, no
decisional employee shall make or knowingly cause to be made to any
person an off-the-record communication relevant to the merits of a
contested on-the-record proceeding involving a party or parties.
(c) Definitions. For purposes of this section:
(1) Off-the-record communication means a communication which, if
written, is not served on the parties to the proceeding, and if oral,
is made without reasonable prior notice to the parties to a proceeding.
Note: Written communications includes a communication
transmitted by electronic means such as ``e-mail.''
(2) Contested on-the-record proceeding means any complaint, action
initiated by the Commission, or other proceeding involving a party or
parties in which an intervenor opposes a proposed action.
Note: The Commission will consider an intervention as contesting
the proposed action, and triggering the prohibitions on off-the-
record communications, when the intervenor expressly styles its
petition as being in opposition. Additionally, the Commission will
consider an intervention as being in opposition, even when not so
styled, if the arguments contained therein reasonably establish the
filer's opposition to the application. However, the Commission will
not treat an intervention as being in opposition to the applicant
when it appears to have been made solely for the purpose of being
placed on the service list or to seek permission to participate in a
hearing, should the Commission order that a hearing be held.
(3) Decisional employee means a Commissioner or member of his or
her personal staff, an administrative law judge, or any other employee
or contractor of the Commission who is or may reasonably be expected to
be involved in the decisional process of a particular proceeding, but
does not include an employee designated as part of the Commission's
trial staff in a proceeding, a settlement judge appointed under Rule
603 (settlement of negotiations before a settlement judge), a neutral
(other than an arbitrator) in an alternative dispute resolution
proceeding, or an employee designated as non-decisional in a particular
proceeding subject to the separation of functions requirements
applicable to trial staff under Rule 2202 (separation of functions of
staff).
Note: For purposes of this paragraph, ``contractor'' means a
direct Commission contractor or a third-party contractor subject to
Commission supervision and control.
(4) Person means any person outside the Commission.
(5) Proceeding involving a party or parties means any docketed
Commission proceeding other than an investigation under part 1b of this
chapter, an informal rulemaking under the procedures of 5 U.S.C. 553 or
exempted from those procedures under 5 U.S.C. 553(a)(1) and (a)(2), or
any other proceeding not having a party or parties.
Note: An on-the-record proceeding includes both proceedings set
for oral hearings and those hearings disposed of on evidence taken
by modified procedures, that is a ``paper hearing.''
(6) Relevant to the merits means capable of affecting the outcome
of a proceeding, or influencing a decision, or providing an opportunity
to influence a decision, on any substantive issue in the proceeding,
but does not include:
[[Page 51321]]
(i) A request for information relating solely to the status of a
proceeding, unless the request states or implies a preference for a
particular party or position, advocates expedited action or action by a
certain date or time, or is otherwise intended, directly or indirectly,
to address the merits or influence the outcome of a proceeding; or
(ii) A general background or broad policy discussion involving an
industry or a substantial segment of an industry, where the discussion
occurs outside the context of any particular proceeding involving a
party or parties and does not address the specific merits of the
proceeding.
Note: Although the Administrative Procedure Act permits off-the-
record communications concerning general background or policy
discussions about an industry or segment of an industry, discussions
of how such background or policy information might apply to the
specific merits of a pending proceeding are not permitted.
(d) Exempt communications. The general prohibitions in paragraph
(b) of this section do not apply to the following:
(1) A communication specifically authorized by law, or permitted by
Commission rule or order in a particular proceeding;
(2) Subject to the disclosure requirements of paragraph (g) of this
section, a communication related to an emergency;
(3) Communications of published or broadly disseminated public
information;
Note: Communications taking place in public fora, and material
appearing in the public domain, are not subject to the general
prohibitions on off-the-record communications.
(4) Pre-filing communications, including communications under
Secs. 4.34(i), 4.38, and 16.8 of this chapter, to take place before the
filing with the Commission of an application for an original, new,
nonpower, or subsequent hydropower license or exemption or a license
amendment;
Note: Application of this section is not limited to the above
listed hydropower regulations. Other examples of permitted pre-
filing communications would include, but are not limited to,
submitting draft rate schedules for the purpose of receiving staff
suggestions under Sec. 35.6 of this chapter, and certain informal
pipeline certificate consultations pursuant to Sec. 157.14(a) of
this chapter.
(5) A communication that all parties to a proceeding agree may be
made without regard to the prohibitions in paragraph (b) of this
section;
Note: Absent formal opposition by a party, this exemption allows
pre-filing communications protocols to remain in effect after an
application is filed with the Commission.
(6) Subject to the disclosure requirements of paragraph (g) of this
section, a written communication from a non-party elected official;
Note: This exemption covers written communications requesting
expedition or forwarding constituent correspondence; oral
communications would be subject to the prohibitions of this subpart.
(7) Where an order is pending rehearing, communications on issues
relating to compliance with order conditions;
Note: Communications related to the basis for, or seeking
changes in, the underlying order for which rehearing is being sought
would not be permitted.
(8) Subject to the requirements of paragraph (g) of this section, a
communication to or from another Federal, state or local agency that is
not a party in the Commission proceeding where the communication
involves:
(i) A verbal or written request for information made by the
Commission or Commission staff; or
(ii) A matter over which the other Federal, state, or local agency
and the Commission share jurisdiction, including authority to impose or
recommend conditions in connection with a Commission license,
certificate, or exemption;
(9) Subject to the disclosure requirements of paragraph (g) of this
section, and without regard to party status, any communication that
relates to:
(i) The preparation of an environmental impact statement, if such
communications occur prior to the issuance of the final environmental
document; or
(ii) The preparation of an environmental assessment in those cases
where the Commission has determined to solicit public comment in the
preparation of an environmental assessment, if such communications
occur prior to the issuance of the final environmental document.
Note: This exemption applies to discussions with Federal, state,
or local agencies, applicants, landowners, and non-governmental
entities engaged in preparation of an environmental document. Once
the final environmental document is issued, further communications
with parties would be subject to the general prohibitions described
in this section unless another exemption applies.
(10) Subject to the disclosure requirements of paragraph (g) of
this section, any communications involving individual, non-party
landowners whose property may be affected by a pending proceeding.
Note: This exemption applies even after the National
Environmental Policy Act process has been completed, but is
inapplicable to landowner organizations and individual landowners
who are parties to the underlying proceeding.
(e) When the prohibitions apply. (1) The prohibitions in paragraph
(b) of this section will apply:
(i) For proceedings initiated by the Commission--from the time an
order initiating the proceeding is issued;
(ii) For proceedings returned to the Commission on judicial
remand--from the date the Court issues its mandate;
(iii) For complaints initiated pursuant to Rule 206 (complaints)--
from the date of the filing of the complaint with the Commission, or
the date the Commission initiates an investigation on its own motion;
and
(iv) For all other matters--from the time of the filing, in
accordance with Sec. 385.2001(a)(2), of any protest or intervention in
opposition to an application, petition, tariff or rate filing, or other
matter that is, or will be, the subject of the proceeding, including a
petition for rehearing of an administrative law judge's decision that
becomes a final decision under Rule 708(d).
Note: Prematurely filed interventions would not trigger the
prohibitions on off-the-record communications.
(2) The prohibitions will remain in force until final disposition
of the proceeding by the Commission, including a decision on rehearing
where applicable. The prohibitions will also remain in effect until the
time period for seeking rehearing has expired. In the case of an
initial decision by an administrative law judge, the prohibitions will
remain in force until it becomes final pursuant to Rule 708(d).
(f) Handling of prohibited off-the-record communications. A
prohibited communication in violation of paragraph (b) of this section
will not be considered part of the record for decision in the
applicable Commission proceeding except to the extent that the
Commission by order determines otherwise.
(1) Disclosure requirement. Any decisional employee who makes or
receives a communication prohibited by paragraph (b) of this section
will submit to the Secretary the communication, if written, or a
summary of the substance of any oral communication. The Secretary will
place the communication or summary in the public file associated
[[Page 51322]]
with, but not part of, the decisional record of the proceeding.
(2) Public notice requirement. The Secretary shall periodically
issue a public notice listing any prohibited off-the-record
communications or summaries thereof received by his or her office
relating to a proceeding. Such notice shall identify the author of the
communication, the date the communication was received, and the docket
number to which it relates.
(3) Responses to prohibited off-the-record communications. Any
party may file a response to a communication placed in the non-
decisional public record under paragraph (f)(1) of this section. A
party may also file a written request for an opportunity to respond,
on-the-record, to any facts or contentions made in an off-the-record
communication placed in the non-decisional public file. The Commission
will grant such request only where it determines that the dictates of
fairness so require. When the request is granted, a copy of both the
off-the-record communication, and the permitted response, will be made
a part of the decisional record.
(g) Handling of permitted off-the-record communications.--(1)
Disclosure requirement. (i) Any written information, and a summary of
the substance of any significant oral information, not already in the
record, obtained through a permitted communication in response to an
emergency covered by paragraph (d)(2) of this section, will be
submitted to the Secretary and placed in the decisional record of the
underlying Commission proceeding.
(ii) Any permitted written information obtained through a permitted
communication with a non-party elected public official under paragraph
(d)(6) of this section will be submitted to the Secretary and placed in
the decisional record of the proceeding.
(iii) Except for information of which official notice may be taken,
any written information, and a summary of the substance of any
significant oral information, not already in the record, obtained
through a permitted communication with a Federal, state, or local
agency under paragraph (d)(8) of this section, will be submitted to the
Secretary and placed in the decisional record of the Commission
proceeding.
(iv) Any written information, and a summary of the substance of any
significant oral information, not already in the environmental
documentation of a proceeding, obtained through a permitted
communication to or from any person under paragraph (d)(9) of this
section, will be submitted to the Secretary, placed in the public
record of the proceeding, and addressed in the final environmental
document issued by the Commission.
(v) Any written information, and a summary of the substance of any
significant oral information, not already in the record, obtained
through a permitted communication involving an individual non-party
landowner under paragraph (d)(10) of this section will be submitted to
the Secretary, and placed in the decisional record of the Commission
proceeding.
(2) Public notice requirement and response. For each communication
required to be disclosed under paragraph (g)(1) of this section, the
Secretary shall periodically issue a public notice listing any
permitted off-the-record communications or summaries thereof received
by his or her office relating to a proceeding. Any party may file a
response on the record.
(h) Sanctions. (1) If a person knowingly makes or causes to be made
a communication in violation of paragraph (b) of this section, the
Commission may disqualify and deny the person, temporarily or
permanently, the privilege of practicing or appearing before it, in
accordance with Rule 2101 (appearances); and
(2) If a party or its agent or representative knowingly makes or
causes to be made a communication in violation of paragraph (b) of this
section, the Commission may require the party, agent, or representative
to show cause why the party's claim or interest in the proceeding
should not be dismissed, denied, disregarded, or otherwise adversely
affected because of the prohibited off-the-record communication.
(i) Section not exclusive. (1) The Commission may, by rule or
order, modify any provision of this section as it applies to all or
part of a proceeding, to the extent permitted by law.
(2) The provisions of this section are not intended to limit the
authority of a decisional employee to decline to engage in permitted
off-the-record communication, or where not required by the rule, to
make a public disclosure of a permitted off-the-record communication,
in circumstances where the employee determines that such action is
appropriate.
7. The heading of Sec. 385.2202 is revised to read as follows:
Sec. 385.2202 Separaton of functions (Rule 2202).
[FR Doc. 98-25373 Filed 9-24-98; 8:45 am]
BILLING CODE 6717-01-P
