[Federal Register Volume 63, Number 151 (Thursday, August 6, 1998)]
[Proposed Rules]
[Pages 41982-41991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20997]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 1b, 343, and 385
[Docket No. RM98-13-000]
Complaint Procedures
July 29, 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 regulations (Rule 206) governing complaints
filed with the Commission under the Interstate Commerce Act, the
Federal Power Act, the Natural Gas Act, the Natural Gas Policy Act, and
the Public Utility Regulatory Policies Act of 1978. The goals of the
proposed revisions are 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.
The Commission also proposes to revise certain sections of its
procedural rules applicable to oil pipeline proceedings, to conform to
the proposed changes in the complaint procedures regulations. In
addition, the Commission proposes to revise its alternative dispute
resolution regulations to conform to the changes made by the
Administrative Dispute Resolution Act of 1996, and to codify its
current Enforcement Hotline procedures in the rules relating to
investigations.
DATES: Comments are due October 5, 1998.
ADDRESSES: Federal Energy Regulatory Commission, 888 First Street,
N.E., Washington, D.C. 20426.
FOR FURTHER INFORMATION CONTACT: David Faerberg, Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street, N.E.,
Washington, D.C. 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. CIPS can be
accessed via
[[Page 41983]]
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 on diskette in WordPerfect format may be
purchased from the Commission's copy contractor, La Dorn System
Corporation. La Dorn Systems Corporation is located in the Public
Reference Room at 888 First Street, N.E., Washington, D.C. 20426.
Notice of Proposed Rulemaking
The Federal Energy Regulatory Commission (Commission) is proposing
to revise section 385.206 of its regulations (Rule 206) 1
governing complaints filed with the Commission under the Interstate
Commerce Act, the Federal Power Act, the Natural Gas Act, the Natural
Gas Policy Act, and the Public Utility Regulatory Policies Act of 1978.
The goals of the proposed revisions are 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\ 18 CFR 385.206 (1998).
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The Commission also proposes to revise certain sections of Part
343, Procedural Rules Applicable to Oil Pipeline
Proceedings,2 to conform to the proposed changes in the
Commission's complaint procedures in Part 385 of the regulations. In
addition, the Commission proposes to revise its alternative dispute
resolution (ADR) regulations (Rules 604, 605 and 606) 3 to
conform to the changes made by the Administrative Dispute Resolution
Act of 1996,4 and to codify its current Enforcement Hotline
procedures in Part 1b, Rules Relating to Investigations.5
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\2\ 18 CFR Part 343 (1998).
\3\ 18 CFR 385.604-606 (1998).
\4\ Pub. L. 104-320, 110 Stat. 3870 (October 19, 1996).
\5\ 18 CFR Part 1b (1998).
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I. Background
The Commission first received requests to change its complaint
procedures in filings arising out of a proceeding concerning interstate
natural gas pipelines. The Pipeline Customer Coalition 6
filed a proposal for expedited procedures for the consideration and
resolution of complaints filed with respect to natural gas pipeline
rates, services, or practices.7 The Interstate Natural Gas
Association Of America (INGAA) filed its own proposal and comments in
opposition to the Coalition's proposal.8
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\6\ The Pipeline Customer Coalition consists of the American
Iron and Steel Institute, the LDC Caucus of the American Gas
Association, American Public Gas Association, Associated Gas
Distributors, Georgia Industrial Group, Independent Petroleum
Association of America, Natural Gas Supply Association, Process Gas
Consumers, and United Distribution Companies.
\7\ Comments and Petition of the Pipeline Customer Coalition,
and Amended Petition of the Pipeline Customer Coalition for Proposed
Rulemaking filed on May 31, 1996, and April 3, 1997, respectively,
in Regulation of Negotiated Transportation Services of Natural Gas
Pipelines, et al., Docket Nos. RM96-7-000 and RM96-12-000.
\8\ Comments and Petition of the Interstate Natural Gas
Association of America filed on April 10, 1997, in Regulation of
Negotiated Transportation Services of Natural Gas Pipelines, et al.,
Docket Nos. RM96-7-000, RM96-12-000, and RM97-4-000.
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On March 30, 1998, in Docket No. PL98-4-000, the Commission held a
symposium on the Commission's complaint procedures to determine (1) how
well the Commission's current complaint procedures are working, (2)
whether changes to the current complaint procedures are appropriate,
and (3) what type of changes should be made.9 Whereas the
Coalition's and INGAA's proposals were restricted to complaints against
pipelines, the purpose of the symposium was to discuss the Commission's
complaint procedures on a generic basis. The Commission obtained a
cross section of views from all segments of the gas, electric, and oil
pipeline industries, as well as state regulatory agencies and members
of the energy bar. The Commission received a number of comments
following the symposium representing a broad range of interests from
the natural gas pipeline, electric, and oil pipeline industries.
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\9\ Symposium on Process and Reform: Commission Complaint
Procedures, Docket No. PL98-4-000.
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As a result of a commitment made by representatives of various
segments of the electric industry at the March 30, 1998 symposium, the
Electric Industry Dispute Resolution Working Group (Electric Working
Group) 10 filed, in Docket No. PL98-4-000, recommendations
and proposed procedures for dispute resolution.11
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\10\ The Electric Working Group includes representatives from
American Public Power Association, Coalition for a Competitive
Electric Market, Edison Electric Institute, Electric Power Supply
Association, Illinois Municipal Electric Agency, National Rural
Electric Cooperative Association and Transmission Access Policy
Study Group, working with the assistance and support of the American
Arbitration Association.
\11\ Electric Industry Dispute Resolution Working Group
Recommendations and Proposed Procedures for Dispute Resolution filed
on June 23, 1998, in Symposium on Process and Reform: Commission
Complaint Procedures, Docket No. PL98-4-000.
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In addition, a team comprised of Staff from different offices
within the Commission (called FERC First) recommended an initiative
that focuses on revising internal procedures for a more timely
resolution of contested matters and complaints. That proposal would
accomplish this goal in two ways: (1) significantly expand use of
consensual decision-making by greater emphasis on ADR techniques; and
(2) use aggressive time limits for the issuance of decisions on matters
that are not resolved in a consensual manner. The initiative also
proposes new complaint processes for all types of issues and
complaints.
II. Discussion
A. Overview
The natural gas and electric industries have undergone and will
continue to undergo significant transformations as a result of changes
to the Commission's regulatory policies. These industries are now
operating in an environment which is increasingly driven by competitive
market forces. Because of the short-term transactional nature of the
electric and gas markets, and the fact that competitive changes happen
quickly, timely and effective resolution of complaints has become more
crucial. If the Commission is to use lighter-handed forms of
regulation, to maintain balance and equity it must have an organized
and fair complaint process to ensure that complainants will receive
adequate protection and redress under the statutes administered and
enforced by the Commission. An effective complaint
[[Page 41984]]
process would better enable the Commission to monitor activities in the
marketplace and provides an early warning system for identifying
potential problems. It is in this context that the Commission is
proposing changes to its complaint procedures. Revised complaint
procedures are necessary to provide assurance to the public that
complaints will receive appropriate consideration and that complaints
that require expedited consideration will receive it.
The Commission has received a number of proposals concerning its
complaint procedures. These proposals are summarized below, and the
Commission invites interested parties to comment on these proposals.
The Commission has constructed its own proposal, incorporating what
appeared to be the best, and most practical elements of the various
proposals and the principles recommended by the Staff initiative. The
goals of the Commission's proposed revisions are to encourage and
support the resolution of disputes by the parties themselves prior to
the filing of a formal complaint, to organize the complaint procedures
so that all complaints are handled in a timely, fair manner based upon
an appropriate record, and to assure those complaints deserving of
expedition receive it, recognizing that the appropriate process to be
used for a particular complaint depends on many factors including the
parties involved, the harm alleged, and the facts and circumstances
surrounding the complaint. The Commission's proposal furthers the goals
of promoting early resolution of contested matters and complaints, and
focusing on consensual decisionmaking, ADR, and expeditious
decisionmaking.
B. Complaint Procedures
1. Proposed Revisions to the Complaint Procedures
Many disputes can be resolved by parties on an informal basis.
Therefore, prior to employing any formal procedures, the Commission
strongly encourages potential complainants to use informal procedures
to resolve disputes to the extent possible. These informal procedures
could include those contained in the tariffs of the pipelines and
electric utilities, the Commission's Enforcement Hotline, or other
types of voluntary ADR techniques. The Commission believes that
informal resolution of disputes will be such an important element to
the success of the Commission's revised complaint procedures, that it
is prepared to make available resources for parties to call upon to aid
their attempts to informally resolve disputes. For example, parties can
employ the Commission's Enforcement Hotline to receive information,
informal Staff opinions, or assistance in reaching a consensual
resolution of a dispute. The Commission requests comments on other
types of professional assistance the Commission might provide to
facilitate informal dispute resolution. The Commission also requests
comments on whether informal procedures prior to filing a formal
complaint should be mandatory.
To the extent potential complaints can be resolved, or the number
of issues in a potential complaint can be reduced informally, the
Commission can then focus its attention on those complaints concerning
the most difficult and contentious issues. Therefore, in the proposed
rules the Commission proposes to require complaints to contain a
statement of (1) whether informal procedures, including ADR or the
Commission's Enforcement Hotline, were used or why they were not used
and (2) whether the complainant believes that informal procedures, such
as ADR, could successfully resolve the complaint if it were under
Commission supervision.
Under the proposed revisions in this NOPR, the process at the
Commission would begin with the filing of a formal complaint pursuant
to Rule 206 of the Commission's Rules of Practice and Procedure.
The Commission proposes to revise Rule 206 to require that a
complaint must satisfy certain informational requirements.
Specifically, a complaint would have to: (1) clearly identify the
action or inaction which is alleged to be unjust, unreasonable, unduly
discriminatory or preferential, or otherwise unlawful, or is contrary
to a certificate or license condition, a tariff provision, or the terms
of an exemption, (2) provide an explanation of the reasons why the
action or inaction is unjust, unreasonable, unduly discriminatory or
preferential, or otherwise unlawful, or is contrary to a condition in a
certificate or license, a tariff provision, or the terms of an
exemption, (3) set forth the business, commercial, economic or other
issues presented by the action or inaction, service or practice as such
relate to or affect the complainant, or, where applicable, the
environmental or safety issues presented by the action or inaction, (4)
quantify the financial impact or burden (if any) created for the
complainant as a result of the action or inaction, or, where
applicable, the environmental or safety impacts of the action or
inaction, (5) indicate the practical and operational impacts imposed
upon the complainant as a result of the action or inaction, or, where
applicable, the environmental or safety impacts of the action or
inaction, (6) state whether the issues presented are pending in an
existing Commission proceeding or a proceeding in any other forum in
which the complainant is a party, and if so, provide an explanation why
timely resolution cannot be achieved in that forum, (7) state the
specific relief requested, including interim relief to preserve the
status quo, and in cases of interim relief, a detailed explanation why
such relief is required addressing (a) the likelihood of success on the
merits, (b) the nature and extent of the harm if interim relief is
denied, (c) the balance of the relevant interests, i.e., the hardship
to nonmovant if interim relief is granted contrasted with the hardship
to the movant if interim relief is denied, and (d) the effect, if any,
of the decision on the public interest, (8) include all documents that
support the facts in the complaint, including, but not limited to,
contracts, affidavits, and testimony, and (9) state whether the
Enforcement Hotline or other informal procedures were used, whether the
complainant believes that ADR under the Commission's supervision could
successfully resolve the complaint, and describe the formal or
consensual process the complainant proposes for resolving the
complaint.
In addition, the Commission proposes to revise Rule 206 to require
a complainant to serve a copy of the complaint on the respondent and
all others who the complainant knows will be affected simultaneously
with filing at the Commission. Simultaneous service can be accomplished
through electronic mail, fax, express delivery, or messenger. This
would be a change from current Commission rules on service for other
types of pleadings. The Commission is particularly interested in
receiving comments on whether simultaneous service to affected parties
is practical.
The Commission proposes to strictly enforce the filing requirements
of Rule 206. Requiring a complainant to set forth its case in some
detail should ensure that the respondent, interested parties, and the
Commission have adequate information early in the complaint process so
that each party may begin analyzing the complaint and consider proposed
courses of action.
After a complaint is filed with the Commission, a public notice of
the complaint would be issued within 2 days to give interested parties
an opportunity to intervene and be heard.
[[Page 41985]]
This will be a ministerial action. The Commission does not propose to
screen the complaint for sufficiency at that point. After an answer is
filed, the Commission will consider any alleged deficiencies in the
complaint. The Commission will exercise its discretion to determine the
sufficiency of a complaint. However, a complainant who fails to meet
the Commission's filing requirements runs the risk that its complaint
will be dismissed for a failure to meet its burden unless it adequately
explains why the information was not presented. The Commission also
proposes to revise Rule 206 to provide that answers to complaints,
comments, and interventions must be filed no later than 10 days after
the complaint is filed. This process is patterned after the interstate
natural gas pipeline rate rules where intervention and answer dates are
triggered by the filing date and not the notice date.12 This
would be a change from the current complaint rules. The Commission
requests comment as to whether 10 days from the date of filing of the
complaint is adequate in all circumstances to file answers, comments,
and interventions.
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\12\ 18 CFR 154.210 (1998).
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Certain sections of Part 343, Procedural Rules Applicable to Oil
Pipeline Proceedings, will need to be revised to conform with the
proposed changes to the Commission's complaint procedures. Therefore,
the Commission proposes to revise paragraph (c)(3) of Sec. 343.2 of the
Commission's regulations to require that complaints involving non-rate
matters must also comply with Rule 206. The Commission also proposes to
revise Sec. 343.4(a) to require that answers must be filed in
accordance with Rule 206. Thus, the time for answers for oil pipeline
complaints will be reduced from 30 days to 10 days after the filing of
the complaint.
As a corollary to the more detailed filing requirements for a
complaint, the Commission proposes to strictly enforce Rule 213 of the
Commission's Rules of Practice and Procedure, which requires that an
answer to a complaint ``admit or deny, specifically and in detail, each
material allegation of the pleading answered'' and ``set forth every
defense relied on.'' 13 This would help to define the
controverted issues early and thus provide a framework for the
Commission to decide on a procedure for resolving the dispute as
quickly as possible. In addition, the Commission is proposing to revise
Rule 213 to require that answers to complaints must include all
documents that support the facts in the answer, including, but not
limited to contracts, affidavits, and testimony. To the extent that a
respondent does not comply with Rule 213, the Commission will consider
granting the relief requested by the complainant based upon the
pleadings alone. Respondents filing what is in essence a general denial
would do so at their own peril. The respondent should also describe the
formal or consensual process it proposes for resolving the complaint.
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\13\ 18 CFR 385.213(c)(1998).
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Once an answer has been filed, there are basically three different
procedures that the Commission proposes to use to resolve issues raised
in complaints. This is not a comprehensive list and the Commission asks
for comments on others that might be appropriate. The objective in all
instances would be selection of a fair and equitable process that would
allow a resolution of the complaint as expeditiously as possible given
the issues, parties, and circumstances. The Commission does not propose
to establish any overall time limits within which complaints must be
resolved, given the variability of possible issues and the limited
extent of the Commission's resources. The Commission, however, would be
committed to resolving complaints in the most expeditious manner
possible. In this regard, therefore, the Commission indicates below
some target time frames for the resolution of complaints depending on
the type of procedure used.
The first possible procedural path for a complaint would be for a
complaint to be decided by the Commission based upon the pleadings
alone. In cases where the complaint is to be decided based upon the
pleadings alone, the Commission would endeavor to issue an order on the
complaint within 60-90 days after the answer is filed. The length of
time in which an order could be issued would depend on the complexity
of the complaint. A complaint concerning a straightforward
interpretation of a tariff or contract should be resolved in 60 days or
less, while a complaint concerning policy issues closely intertwined
with difficult interpretation issues might take longer.
If a complaint does not lend itself to a decision on the merits
based upon the pleadings, the Commission could order an expedited
hearing before an ALJ, convene a conference, or assign the complaint to
an ADR procedure, where appropriate. If the Commission takes one of
these procedural paths, the intention is to issue an order selecting
one of these paths within approximately 30 days after the answer is
filed. The second possible procedural path for a complaint is an
expedited hearing. In cases where the complaint is set for an expedited
hearing before an ALJ, the objective would be to have an initial
decision rendered within 60 days. The Commission's objective then would
be to issue its order on an appeal from the initial decision concerning
a complaint within 90 days after briefs opposing exceptions are filed.
The overall time in which it would take to issue an order on exceptions
from an initial decision could be reduced to the extent that parties
can agree on reducing the time currently allowed for the filing of
briefs on an opposing exceptions.14 If there are no
exceptions to the initial decision, then under Rule 712 15
the ALJ's decision would become the final agency action.
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\14\ Pursuant to Rule 711, 18 CFR 385.711 (1998), briefs on
exceptions are due not later than 30 days after service of the
initial decision and briefs opposing exceptions are due 20 days
thereafter.
\15\ 18 CFR 385.712 (1998).
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Where the parties have agreed that ADR under the Commission's
auspices would be beneficial, the Commission could issue an order
directing that the complaint be resolved through alternative dispute
resolution techniques such as mediation, arbitration, mini trial, or
proceeding before a settlement judge. This is the third procedural path
a complaint may take. Since ADR is a voluntary process, the time period
in which a decision can be rendered is largely in the control of the
affected parties. The Commission's objective, however, would be to
issue any subsequent orders on complaints resolved through ADR in a
meaningful time period.
It is important for parties to have a role in determining the
process that should be used for resolving a complaint. If parties are
unable to resolve their dispute through informal procedures, the
Commission encourages them to at least agree on the procedures for
resolving a formal complaint filed with the Commission. The parties
should also inform the Commission when a decision is needed in order to
satisfy their business needs. Under the proposed revisions, if the
parties reach agreement concerning the procedures to be used and the
requested time for action, every effort would be made to honor the
proposal of the parties. Parties need to understand that the
Commission's ability to resolve a complaint in a timely and meaningful
manner will be enhanced if the parties can at least agree on a process
if not the substance. Parties should also recognize that the more
formal the complaint procedure the more time it is likely to
[[Page 41986]]
take the Commission to render a decision.
There is undoubtedly a category of case that would require
immediate action by the Commission. To the extent the Commission has
the authority, the Commission could issue an order expeditiously to
preserve the status quo pending a final resolution of the complaint on
the merits.
In its proposal the Electric Working Group suggested that relief
should be granted based on the following factors: (1) likelihood of
success on the merits; (2) whether irreparable injury to complainant
will occur if the relief is not granted; (3) whether the injury
outweighs harm to the respondent or other parties to the proceeding if
the relief is granted; and (4) other public interest considerations.
These are the standards used by Courts of Appeal when considering
requests to stay administrative orders, as well as deciding whether to
grant preliminary relief,16 but are not the standards
currently used by the Commission to decide whether to stay its own
orders. 17 The Commission proposes to adopt the standards
proposed by the Electric Working Group but requests comments on whether
other standards should be established for granting such interim relief.
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\16\ See Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921,
925 (D.C. Cir. 1958).
\17\ In acting on requests for stay, the Commission applies the
standard set forth in section 705 of the Administrative Procedure
Act, 5 USC 705 (1988), i.e., the stay will be granted if ``justice
so requires.''
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2. Alternative Complaint Procedures
The procedures proposed here must be viewed against a background of
a more complex energy market where regulated and unregulated companies
are driven increasingly by competitive market forces. The dynamics of
competitive markets and lighter-handed Commission regulation can be
expected to change the nature of the complaints received. The
Commission will be faced both with unusual commercial problems and with
requests for relief in the context of rapidly moving competitive
circumstances. The Commission therefore anticipates that greater
demands will be placed upon it to respond expeditiously to resolve
disputes.
The question the Commission now confronts is how to structure its
processes to ensure rapid response to market issues. One of the
elements of the Staff's proposal was for certain disputes to be
assigned to Office Directors for resolution by Letter Order. The
Electric Working Group also suggested that, where appropriate, a
complaint could be assigned to an Office Director who would prepare a
Letter Order for issuance by the Commission. It may be helpful to
employ a Letter Order or delegation of some complaint responsibilities
to staff or ALJs to achieve expedition where possible. Complaints
represent an important source of information that allows the Commission
to monitor activities in the marketplace. Based on complaints, the
Commission is often able to identify instances where there is a need
for policy change or development. Complaints frequently plow new legal
ground as well. Thus, delegation of complaint authority would not be
implemented in a way that would impair the Commission's growing
monitoring role or exclude Commissioners from decisions involving
complex fact issues, new policy concerns, or unresolved law or other
important issues. In a limited and well-defined category of cases,
perhaps delegations could be adopted that handle more routine
commercial issues with real expedition, subject to rehearing before the
Commission.
The Commission is therefore interested in comment on whether there
may be a limited category of cases which could be handled by delegation
or Commission letter order to expedite resolution without compromising
the full Commission's oversight responsibility. In seeking comment in
this area, the Commission is preparing itself for types and numbers of
cases that are likely to arise from the competitive market and
reinforcing its commitment to be more responsive to the evolving
market. The Commission may also achieve expedition through deadlines
for completing specific processes.
One avenue for resolving requests for interim relief expeditiously
might be assignment to an administrative law judge. An ALJ could hold
oral argument to determine whether to issue an order that would
preserve the status quo pending a final decision on the merits of the
complaint. In cases where such interim relief is requested, the ALJ
could issue an order shortly after the oral argument. The ALJ would
have the discretion to determine an appropriate time for action based
upon the nature of the complaint. The Commission requests comment on
whether this procedure would be an advantage in expediting the
resolution of requests for immediate relief.
In addition to the procedures discussed above, the Commission would
like to receive comments on whether there should be special procedures
established in cases where small customers allege harm or there is a
small amount of money in controversy. The Commission envisions that
such procedures could be akin to a small claims court. The Commission
requests comments on how it should define a small customer, and what
could be an appropriate ceiling level for the amount in controversy.
The Commission requests comments on whether a complainant filing
under a small claims court type procedure should be required to satisfy
all the informational requirements contained in revised Rule 206. The
Commission, for example, could create a standard short-form complaint
in which the complainant would state why it is eligible for the
procedure, provides a brief description of the facts and circumstances
surrounding the complaint, and states the requested relief. The
Commission could make such a short-form complaint available in both
paper and electronic format and could even provide for the electronic
filing of such a complaint. Similarly, the Commission could reduce the
requirements for an answer under this procedure. There are a number of
ways in which the Commission could handle a short-form complaint. An
Office Director, acting under delegated authority, could issue an order
based upon the pleadings. An ALJ could be assigned to issue orders on
such complaints and where necessary hear arguments. Finally, a single
Commissioner could be designated to decide such complaints, similar to
the Motions Commissioner under the existing rules for interlocutory
appeals.18 In any of these instances, the Commission
envisions that an order would be issued within 30 days after the
complaint is filed. The order could be appealable to the Commission.
The Commission requests comments on these proposals and other
procedures that could be used in lieu of the proposed small claims
court type process.
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\18\ 18 CFR 385.715 (1998).
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3. Other Approaches
The Commission has formulated proposed changes in its complaint
procedures that incorporate what appeared to be the best and most
practical elements from the various proposals it has received. Among
those was one from the staff initiative. The FERC First Staff proposed
a multi-disciplinary Commission team that would identify one of four
potential resolution paths for a complaint: (1) ADR, if settlement is
likely; (2) injunctive type relief from an
[[Page 41987]]
administrative law judge (ALJ) if the complaint is time sensitive; (3)
an order issued by the Commission or an office director by delegation
where clear precedent exists and where there are no genuine issues of
material fact in dispute; and (4) hearing for a fact intensive dispute
that would benefit from the development of an evidentiary record.
The Commission also has received three comprehensive industry
proposals concerning revisions to the Commission's complaint
procedures. These proposals, which are summarized below, were filed by
the Coalition, INGAA, and the Electric Working Group. Their complete
proposals can be found in their respective pleadings. The Commission
requests parties to comment on these industry proposals. Given that the
proposals are industry specific, the comments should include the extent
to which such proposals, with modifications, could be adopted by the
Commission on a generic basis, as well as what aspects of such
proposals could be incorporated into the Commission's proposal
discussed above. Although comments have been filed on the Coalition's,
the Electric Working Group's, and INGAA's proposals, the Commission
believes that parties may wish to formally comment given the
Commission's plan to revise its complaint procedures on a generic
basis.
a. The Coalition's Proposal. The Coalition's proposal would require
natural gas pipelines' tariffs to contain a complaint procedure and
would formalize procedures for use of the Commission's Hotline. A
complainant's use of the Hotline and a pipeline's complaint procedure
would be a prerequisite to using the expedited complaint procedures
contained in the Commission's regulations.
A complaint would qualify for the expedited procedure if it
concerns (1) an interpretation of the terms and conditions of a
pipeline's tariff, a pipeline's executed service agreement, or a
Commission approved settlement agreement, (2) an allegation that a
pipeline is engaging in activities involving undue preference, undue
discrimination, or unfair competition or which involve violations of
law or Commission regulations, and (3) a proposal by the complainant to
revise an executed service agreement, an existing pipeline tariff other
than a change in the pipeline's approved rates or rate structure, or an
operating practice not mentioned or defined in the pipeline tariff.
Each of the categories would require the Commission to meet strict
time deadlines. For example, the Commission would have a total of 90
days to rule on complaints concerning interpretation issues.
Complaints concerning rates or rate structure would not qualify for
the expedited procedure. The Commission would still have to summarily
dispose of such complaints, as well as other complaints not eligible
for the expedited procedures, within 120 days of the notice date or
prescribe further procedures with a time for final action.
A complaint would have to contain a statement of the complaint with
business reasons (including financial impact), indicate the absence of
other regulatory relief, the specific relief or remedy requested, and a
notice. Prior to issuing a notice, the Commission could send the
complaint back to the filing party if it was deficient.
A notice would have to be issued in 15 days. The Coalition proposal
would give a total of 45 days for interventions, answers and replies.
Interventions would be due 12 days from the notice, answers would be
due 30 days from the notice, and replies would be due 45 days from the
notice. After all the pleadings are received, the Commission would have
30 to 120 days to act on the complaint depending on the type of
complaint and the procedural mechanism chosen by the Commission, that
is, summary disposition, a technical conference, hearing, etc.
b. INGAA's Proposal. Under INGA's proposal complaints eligible for
expedited consideration are those for the interpretation of the terms
and conditions of a natural gas company's tariff or service agreements.
Included would also be complaints alleging undue discrimination in
providing transportation and storage services. Complaints to change a
pipeline's tariff or executed service agreement would not fall under
this procedure, but under the existing Rule 206 procedure.
INGAA's proposal consists initially of informal negotiations
between designated representatives of the pipeline and the complainant.
If these negotiations are unsuccessful within a time certain, usually
four business days, the complainant can seek informal advice from
designated FERC Staff through a codified hotline procedure. If the
parties with the help of the Staff cannot resolve the dispute within a
time certain, usually nine days after initial contact of the pipeline
by the Staff, the complainant has two options.
The complainant and the pipeline may agree to arbitration. The
proposed procedures are similar to those already in place, but would
provide for a direct appeal to the Commission of the arbitrator's
decision if it is inconsistent with Commission orders, policies,
regulations, or jeopardizes the operational integrity of the pipeline.
These procedures would be subject to time limits.
The other option would be for the complainant to proceed directly
from the hotline informal advice to the Commission under the formal
complaint procedures under Rule 206. The Staff person who handled the
Hotline procedure would indicate to the Commission the need for
expediting the decision based on the materials that came out during the
informal advice stage. No deadlines would be suggested to the
Commission so as to assure the discretion it needs for dealing with
such complaints.
The informal procedures, however, would not be prerequisites for a
party to file a complaint under Rule 206.
c. The Electric Working Group's Proposal. Under the Electric
Working Group's proposal, parties may agree at any time to ADR,
including binding arbitration, of commercial disputes and issues that
do not involve challenges to the justness and reasonableness of the
rates, terms and conditions of filed contracts, tariffs or other rate
schedules.
The disputing parties may initiate unilateral or bilateral contacts
with a Dispute Resolution Task Force or the Enforcement Hotline.
For a fifteen month pilot period, complainant must submit a dispute
to mediation prior to filing a complaint (other than complaints seeking
to change filed rates, terms and conditions of service, or seeking
expedited relief on the grounds of irreparable harm). The parties must
engage in mediation efforts for a period not to exceed thirty days,
with the objective of either settling the dispute or narrowing the
policy issues and factual disputes remaining to be resolved.
The Electric Working Group suggested that the Commission create a
Division of Dispute Resolution (DDR) that will determine which of
several dispute resolution mechanisms will be employed to resolve those
disputes not resolved by the pre-complaint procedures.
The DDR would select the appropriate procedure depending upon the
issues presented by the complaint: (1) assignment to an Office Director
who will prepare a Letter Order, for issuance by the Commission where
required, that resolves the matter; (2) assignment to ADR procedures;
(3) assignment to an ALJ who will set a schedule for cross motions for
summary judgment and will issue a recommended decision; (4) assignment
to an ALJ for hearing on an
[[Page 41988]]
expedited basis or a schedule to be determined by the ALJ; and (5)
referral to the Commission.
C. Proposed Revisions to the ADR Regulations
In addition to revising the Commission's complaint procedures, the
Commission is also proposing revisions to its ADR regulations in Rules
604, 605, and 606 of the Commission's Rules of Practice and Procedure.
The Commission's ADR regulations, which were promulgated in Order No.
578, are based on the provisions of the Administrative Dispute
Resolution Act (ADRA) of 1990.19 In comments filed in Docket
No. PL98-4-000, the American Arbitration Association (AAA) submits that
several of the ADRA procedures adopted in the Commission's regulations
actually impede the use of ADR. AAA states that under the 1990 Act, the
disclosure requirements of the Freedom of Information Act (FOIA)
preempted the confidentiality provisions of the ADRA. AAA states that
materials in the government's possession or in the possession of a
neutral who was a government employee were subject to release under
FOIA unless a FOIA exemption applied. AAA contends that since
confidentiality is essential to the effective use of mediation, the
disclosure requirements contained in the 1990 ADRA and adopted by the
Commission has a chilling effect upon the voluntary use of mediation.
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\19\ 5 U.S.C. 571-83 (1988), as amended by Pub. L. 102-354, 106
Stat. 944 (Aug. 26, 1992.)
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AAA also asserts that voluntary use of arbitration has been
curtailed by the inclusion of opt-out provisions in Rules 604 and 605.
AAA states that the 1990 ADRA allowed an agency to terminate the
arbitration proceeding at any point prior to the issuance of an award.
In addition, an agency could vacate or opt-out of an arbitration award
within 30 days after the service of the award. This 30 day opt-out
period could be extended another 30 days at the discretion of the
agency.
In 1996 Congress passed the Administrative Dispute Resolution Act
of 1996. 20 The ADRA of 1996 provides that the
confidentiality provisions of the Act pre-empt the disclosure
requirements of the FOIA. In addition, the termination and opt-out
provisions are eliminated. AAA submits that the Commission should amend
its Rules of Practice and Procedure to bring existing Rules 604, 605,
and 606 into compliance with the confidentiality, termination and opt-
out provisions of the 1996 ADRA.
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\20\ Pub. L. 104-320, 110 Stat. 3870 (October 19, 1996).
---------------------------------------------------------------------------
In addition, AAA asserts that the Commission should reverse the
current requirement that any settlement agreement reached during an ADR
process will be subject to the notice and comment provisions of Rule
602 ``unless the decisional authority, upon motion or otherwise, orders
a different procedure.'' 21 AAA submits that the provision
should indicate that agreements reached through mediation are not
subject to notice and comment unless the Commission takes affirmative
action within a set period of time (30 days). AAA believes that
voluntary submission to ADR would increase if the procedural
protections discussed above were enacted.
---------------------------------------------------------------------------
\21\ 18 CFR 385.604(a)(5)(1998).
---------------------------------------------------------------------------
The Commission is proposing revisions to its regulations to address
these concerns and requests parties to comment on them and any other
related issues. The Commission proposes to revise Rules 604, 605 and
606 to conform to the 1996 ADRA by eliminating the termination and opt-
out provisions, and providing that the confidentiality provisions of
the 1996 ADRA pre-empt the disclosure requirements of the FOIA. The
Commission is not proposing to revise the regulations to indicate that
settlement agreements reached through ADR are not subject to the notice
and comment requirements of Rule 602 unless the Commission takes
affirmative action within 30 days, as suggested by the AAA. Such a
change is not required to conform to the 1996 ADRA. Further, because in
many instances settlements entered into by regulated companies can
affect parties who were not part of the ADR process, it appears
appropriate for the Commission to receive public comments on settlement
agreements reached through ADR processes. However, the Commission
requests comments on this issue.
D. Codification of Enforcement Hotline Procedures
To make the Enforcement Hotline easier to use, the Commission is
proposing to codify the current Hotline procedures in a new Section
1b.21. The proposed procedures provide that the Hotline procedures may
be used to address quickly and informally any matter within the
Commission's jurisdiction, including disputes concerning natural gas
pipelines, oil pipelines, electric utilities and hydroelectric
projects. The Hotline Staff is authorized to provide information to the
public and to give informal staff opinions that do not bind the General
Counsel or the Commission. Any person may seek information or the
informal resolution of a dispute by calling or writing to the Hotline.
The Hotline Staff will informally seek information from the caller and
any respondent, as appropriate. The Hotline Staff will attempt to
resolve disputes without litigation or other formal proceedings. The
Hotline Staff may not resolve matters that are before the Commission in
docketed proceedings.
The proposed procedures also state that all information and
documents obtained through the Hotline shall be treated as non-public
by the Commission and its staff consistent with the provisions of
section 1b.9. Calls to the Hotline may be made anonymously. Self-
identification by the complainant makes it easier to provide a speedier
resolution. Any person who contacts the Hotline is not precluded from
filing a formal action with the Commission if discussions are
unsuccessful at resolving the matter. A caller may terminate use of the
Hotline procedures at any time.
The Hotline currently operates according to the procedures
described above. The Commission proposes to codify them to alert the
public to the availability of the Hotline and to provide information on
the scope of the service.
III. Information Collection Statement
The following collection of information contained in this proposed
rule is being submitted to the Office of Management and Budget (OMB)
for review under Section 3507(d) of the Paperwork Reduction Act of
1995.22 FERC identifies the information provided under 18
CFR Part 385 as FERC-600. FERC-600 consolidates certain existing
information collection requirements from the various FERC program
offices into one information collection number and accounts for the
incremental burden placed on persons filing under the proposed
regulations.
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\22\ 44 U.S.C. 3507(d) (1988).
---------------------------------------------------------------------------
Comments are solicited on the Commission's need for this
information, whether the information will have practical utility, the
accuracy of the provided burden estimates, ways to enhance the quality,
utility, and clarity of the information to be collected, and any
suggested methods for minimizing the burden on persons filing under the
revised complaint procedures, including the use of automated
information techniques.
[[Page 41989]]
Estimated Annual Burden: The burden estimates for complying with
this proposed rule are as follows:
----------------------------------------------------------------------------------------------------------------
Number of Number of Hours per Total annual
Data collection respondents responses response hours
----------------------------------------------------------------------------------------------------------------
FERC-600................................................ 75 75 14 1,050
----------------------------------------------------------------------------------------------------------------
Total Annual Hours for Collection (Reporting + record keeping, if
appropriate) = 1,050.
Based on the Commission's experience with complaints, it is
estimated that about 75 filings per year will be made over the next
three years at a burden of 14 hours per filing, for a total annual
burden of 1,050 hours under the proposed regulations. As described in
this proposed rule, the Commission's expectation is that receiving more
information in the complaint will lessen the subsequent burden on
parties and will shorten the time for resolving a complaint. There is
no annual reporting burden under the current regulations.
Information Collection Costs: The Commission seeks comments on the
costs to comply with these requirements. It has projected the average
annualized cost for all respondents to be:
Annualized Capital/Startup Costs--$55,260 Annualized
Costs(Operations and Maintenance) ____________ Total Annualized Costs
$55,260. Average cost per Respondent $736.80.
The OMB regulations require OMB to approve certain information
collection requirements imposed by agency rule.23
Accordingly, pursuant to OMB regulations, the Commission is providing
notice of its proposed information collection to OMB.
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\23\ 5 CFR 1320.11
---------------------------------------------------------------------------
Title: FERC-600, Rules of Practice and Procedure
Action: Proposed Data Collection.
OMB Control No. 1902-____________
The respondent shall not be penalized for failure to respond to
this collection of information unless the collection of information
displays a valid OMB control number.
Respondents: Business or other for profit, including small
businesses.
Frequency of Responses: Infrequent.
Necessity of Information: The proposed rule requires persons filing
complaints and answers to complaints with the Commission to satisfy
certain informational requirements, and to provide supporting
documentation for the allegations in a complaint and answer to a
complaint. The information will allow the Commission to properly
evaluate a complaint and resolve it in a timely manner.
Internal Review: The Commission has assured itself, by means of its
internal review, that there is specific, objective support for the
burden estimates associated with the information collection
requirements. The Commission's Offices of General Counsel, Pipeline
Regulation, Electric Power Regulation, and Hydropower Licensing, will
use the data to make decisions with respect to the merits of a
complaint. This internal review determination involves among, other
things, an examination of adequacy of design, cost, reliability,
redundancy of the information to be required. These requirements
conform to the Commission's plan for efficient information collection,
communication, and management within the interstate natural gas
pipeline, oil pipeline, electric and hydroelectric industries.
Interested persons may obtain information on the reporting
requirements by contacting the following: Federal Energy Regulatory
Commission, 888 First Street, NE, Washington, DC 20426, [Attention:
Michael Miller, Office of the Chief Information Officer, Phone: (202)
208-1415, fax: (202) 273-0873, e-mail: michael.miller@ferc.fed.us].
For submitting comments concerning the collection of information
and the associated burden estimate, please send your comments to the
contact listed above and to the Office of Management and Budget, Office
of Information and Regulatory Affairs, Washington, DC, 20503.
[Attention: Desk Officer for the Federal Energy Regulatory Commission,
phone: (202) 395-3087, fax: (202) 395-7285.
IV. Environmental Analysis
The Commission is required to prepare an Environmental Assessment
or an Environmental Impact Statement for any action that may have a
significant adverse effect on the human environment.24 The
Commission has categorically excluded certain actions from these
requirements as not having a significant effect on the human
environment.25 The actions proposed to be taken here fall
within categorical exclusions in the Commission's regulations for rules
that are clarifying, corrective, or procedural, for information
gathering, analysis, and dissemination, and for sales, exchange, and
transportation of natural gas that requires no construction of
facilities. 26 Therefore, an environmental assessment is
unnecessary and has not been prepared in this rulemaking.
---------------------------------------------------------------------------
\24\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs. Preambles 1986-1990 para. 30,783 (1987).
\25\ 18 CFR 380.4.
\26\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).
---------------------------------------------------------------------------
V. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act (RFA) requires agencies to prepare
certain statements, descriptions and analyses of proposed rules that
will have a significant economic impact on a substantial number of
small entities. 27 The Commission is not required to make
such analyses if a rule would not have such an effect.28
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\27\ 5 U.S.C. 601-612 (1988).
\28\ 5 U.S.C. 605(b)(1988).
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The Commission does not believe that this rule would have such an
impact on small entities. The majority of complaints filed with the
Commission have been by companies who do not meet the RFA's definition
of a small entity whether or not they are under the Commission's
jurisdiction.29 Further, the Commission is proposing to
speed up the complaint process in general and in particular for those
cases where small business entities have been the subject of an alleged
detriment. This proposed rule will be beneficial to small entities.
Therefore, the Commission certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
---------------------------------------------------------------------------
\29\ 5 U.S.C. 601(3)(1988).
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VI. Comment Procedures
The Commission invites interested persons to submit written
comments on the matters and issues proposed in this notice to be
adopted, including any related matters or alternative proposals that
commenters may wish to discuss. An original and 14 copies of comments
must be filed with the Commission no
[[Page 41990]]
later than October 5, 1998. Comments should be submitted to the Office
of the Secretary, Federal Energy Regulatory Commission, 888 First
Street, NE, Washington, DC 20426, and should refer to Docket No. RM98-
13-000. 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 First Street, NE, Washington, DC 20426, during
regular business hours.
Additionally, comments should be submitted electronically.
Commenters are encouraged to file comments using Internet E-Mail.
Comments should be submitted through the Internet by E-Mail to
comment.rm@ferc.fed.us in the following format: on the subject line,
specify Docket No. RM98-13-000; in the body of the E-Mail message,
specify the name of the filing entity and the name, telephone number
and E-Mail address of a contact person; and attach the comment in
WordPerfect 6.1 or lower format or in ASCII format as an
attachment to the E-Mail message. The Commission will send a reply to
the E-Mail to acknowledge receipt. Questions or comments on electronic
filing using Internet E-Mail should be directed to Marvin Rosenberg at
202-208-1283, E-Mail address marvin.rosenberg@ferc.fed.us.
Commenters also can submit comments on computer diskette in
WordPerfect 6.1 or lower format or in ASCII format, with
the name of the filer and Docket No. RM98-13-000 on the outside of the
diskette.
List of subjects
18 CFR Part 1b
Investigations.
18 CFR Part 343
Pipelines, Reporting and recordkeeping requirements.
18 CFR Part 385
Administrative practice and procedure, Electric power, Penalties,
Pipelines, Reporting and recordkeeping requirements.
By direction of the Commission.
David P. Boergers,
Acting Secretary.
In consideration of the foregoing, the Commission proposes to amend
Parts 1b, 343, and 385, Chapter I, Title 18, Code of Federal
Regulations, as set forth below.
PART 1b--RULES RELATING TO INVESTIGATIONS
1. The authority citation for part 1b is amended to read as
follows:
Authority: 15 U.S.C. 717 et seq.; 16 U.S.C. 792 et seq.; 49
U.S.C. 60502; 49 App. U.S.C. 1-85; 42 U.S.C. 7101-7352; E.O. 12009,
42 FR 46267.
2. In Sec. 1b.1, new paragraph (d) is added to read as follows:
* * * * *
(d) Enforcement Hotline is a forum in which to address quickly and
informally any matter within the Commission's jurisdiction concerning
natural gas pipelines, oil pipelines, electric utilities and
hydroelectric projects.
3. In part 1b, new section 1b.21 is added to read as follows:
Sec. 1b.21 Enforcement Hotline.
(a) The Hotline Staff may provide information to the public and
give informal staff opinions. The opinions given are not binding on the
General Counsel or the Commission.
(b) Any person may seek information or the informal resolution of a
dispute by calling or writing to the Hotline at the telephone number
and address in paragraph (f) of this section. The Hotline Staff will
informally seek information from the caller and any respondent, as
appropriate. The Hotline Staff will attempt to resolve disputes without
litigation or other formal proceedings. The Hotline Staff may not
resolve matters that are before the Commission in docketed proceedings.
(c) All information and documents obtained through the Hotline
Staff shall be treated as non-public by the Commission and its staff
consistent with the provisions of Sec. 1b.9 of this part.
(d) Calls to the Hotline may be made anonymously.
(e) Any person who contacts the Hotline is not precluded from
filing a formal action with the Commission if discussions are
unsuccessful at resolving the matter. A caller may terminate use of the
Hotline procedure at any time.
(f) The Hotline may be reached by calling (202) 208-1390 or toll
free (877) 303-4340 or writing to: Enforcement Hotline, Federal Energy
Regulatory Commission, 888 First Street, N.E. Washington, D.C. 20426.
PART 343--PROCEDURAL RULES APPLICABLE TO OIL PIPELINE PROCEEDINGS
1. The authority citation for part 343 continues to read as
follows:
Authority: 5 U.S.C. 571-583; 42 U.S.C. 7101-7352; 49 U.S.C.
60502; 49 App. U.S.C. 1-85.
2. In Sec. 343.2 paragraph (c)(3) is revised to read as follows:
Sec. 343.2 Requirements for filing interventions, protests and
complaints.
* * * * *
(c) * * *
(3) Non-rate matters. A protest or complaint filed against a
carrier's operations or practices, other than rates, must allege
reasonable grounds for asserting that the operations or practices
violate a provision of the Interstate Commerce Act, or of the
Commission's regulations. In addition to meeting the requirements of
this paragraph, a complaint must also comply with the requirements of
Rule 206.
* * * * *
3. In Sec. 343.4 paragraph (a) is revised to read as follows:
Sec. 343.4 Procedures on complaints.
(a) Responses. The carrier must file an answer to a complaint filed
pursuant to section 13(1) of the Interstate Commerce Act within 10 days
after the filing of the complaint in accordance with Rule 206.
* * * * *
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, existing paragraph (b) is redesignated
paragraph (e) and is revised, existing paragraph (c) is redesignated
paragraph (g), and new paragraphs (b), (c), (d), and (f) are added to
read as follows:
Sec. 385.206 Complaints (Rule 206).
* * * * *
(b) Contents. A complaint must:
(1) Clearly identify the action or inaction which is alleged to be
unjust, unreasonable, unduly discriminatory or preferential, or
otherwise unlawful, or is contrary to a certificate or license
condition, a tariff provision, or the terms of an exemption;
(2) Provide an explanation of the reasons why the action or
inaction is unjust, unreasonable, unduly discriminatory or
preferential, or otherwise unlawful, or is contrary to a certificate or
license condition, a tariff provision, or the terms of an exemption;
(3) Set forth the business, commercial, economic or other issues
presented by the action or inaction, service or practice as such relate
to or affect the complainant, or, where applicable, the environmental
or safety issues presented by the action or inaction;
(4) Quantify the financial impact or burden (if any) created for
the
[[Page 41991]]
complainant as a result of the action or inaction, or, where
applicable, the environmental or safety impacts of the action or
inaction;
(5) Indicate the practical and operational impacts imposed upon the
complainant as a result of the action or inaction, or, where
applicable, the environmental or safety impacts of the action or
inaction;
(6) State whether the issues presented are pending in an existing
Commission proceeding or a proceeding in any other forum in which the
complainant is a party, and if so, provide an explanation why timely
resolution cannot be achieved in that forum;
(7) State the specific relief, including interim relief to preserve
the status quo, or remedy requested, and in cases seeking interim
relief, a detailed explanation of why such relief is required
addressing:
(i) The likelihood of success on the merits;
(ii) The nature and extent of the harm if interim relief is denied;
(iii) The balance of the relevant interests, i.e., the hardship to
nonmovant if interim relief is granted contrasted with the hardship to
the movant if interim relief is denied; and
(iv) The effect, if any, of the decision on the public interest;
(8) Include all documents that support the facts in the complaint,
including, but not limited, to contracts, affidavits, and testimony;
(9) State:
(i) Whether the Enforcement Hotline or other informal procedures
were used;
(ii) Whether the complainant believes that alternative dispute
resolution (ADR) under the Commission's supervision could successfully
resolve the complaint;
(iii) What types of ADR procedures could be used; and
(iv) Describe any process that has been agreed on for resolving the
complaint.
(c) Service. Any person filing a complaint must serve a copy of the
complaint on the respondent and others the complainant knows will be
affected simultaneously with filing at the Commission and must so
affirm in the complaint. Simultaneous service can be accomplished
through electronic mail, fax, express delivery, or messenger.
(d) Notice. A public notice of the complaint will be issued.
(e) Answers, interventions and comments. (1) Unless otherwise
ordered by the Commission, any respondent to a complaint must file an
answer with the Commission within 10 days after the complaint is filed.
(2) Interventions and comments are also due within 10 days after
the complaint is filed.
(f) Complaint resolution procedures. One of the following
procedures may be used to resolve complaints:
(1) The Commission may issue an order on the merits based upon the
pleadings;
(2) In cases where the affected parties consent, the Commission may
assign a case to be resolved through alternative dispute resolution
procedures in accordance with Secs. 385.603 through 385.606; or
(3) The Commission may convene a conference or establish a hearing,
including an expedited hearing, before an ALJ.
3. In Sec. 385.213 paragraph (c)(4) is added to read as follows:
Sec. 385.213 Answers (Rule 213).
* * * * *
(c) * * *
(4) An answer to a complaint must include all documents that
support the facts in the answer, including, but not limited to,
contracts, affidavits and testimony.
* * * * *
4. In Sec. 385.604, paragraph (d)(3) is removed, paragraphs (d)(4),
(d)(5), and (d)(6) are redesignated paragraphs (d)(3), (d)(4), and
(d)(5), paragraph (g) is removed, and paragraph (d)(2) is revised to
read as follows:
Sec. 385.604 Alternative means of dispute resolution (Rule 604).
* * * * *
(d) * * *
(2) For matters set for hearing under subpart E of this part, a
proposal to use alternative means of dispute resolution must be filed
with the presiding administrative law judge.
* * * * *
5. In Sec. 385.605, paragraph (f) is removed, and paragraphs (a)(4)
and (e)(2) are revised to read as follows:
Sec. 385.605 Arbitration (Rule 605).
(a) * * *
(4) An arbitration proceeding under this rule may be monitored as
provided in Rule 604(f).
* * * * *
(e) * * *
(2) The award in an arbitration proceeding will become final 30
days after it is served on all parties.
* * * * *
6. In Sec. 385.606 paragraph (d) is redesignated paragraph (d)(1)
and paragraphs (d)(2) and (l) are added:
Sec. 385.606 Confidentiality in dispute resolution proceedings (Rule
606).
* * * * *
(d) * * *
(2) To qualify for the exemption established under paragraph (l) of
this section, an alternative confidential procedure under this
paragraph may not provide for less disclosure than confidential
procedures otherwise provided under this rule.
* * * * *
(l) A dispute resolution communication that may not be disclosed
under this rule shall also be exempt from disclosure under 5 U.S.C.
552(b)(3).
[FR Doc. 98-20997 Filed 8-5-98; 8:45 am]
BILLING CODE 6717-01-P
