Complaint Procedures

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.

t 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

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

d 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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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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r 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

termine (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

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

ransformations 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

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

mission 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

es 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

ld 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 expl

on, (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

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.

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

ss 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

p 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

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

ssible 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

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

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

oposal 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

arkets 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

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

ments 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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y 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

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

ir 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

proved 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

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

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;

spute 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

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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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).

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

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.

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\21\ 18 CFR 385.604(a)(5)(1998).

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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

t 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).

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g

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).

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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.

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

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

--

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

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lations 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

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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

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: [email protected]].

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.

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

or 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.

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\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).

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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).

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

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

ction.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.

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\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

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

[email protected] 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

g 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 [email protected].

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.

7.

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.

ll 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.

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;

ential, 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

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:

(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.

il, 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).

* * * * *

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