Report of the Ferc Practice & Administrative Law Judges Committee

Energy Law Journal, July 1, 2012 | Go to article overview

Report of the Ferc Practice & Administrative Law Judges Committee


This report summarizes certain aspects of the operations of the Federal Energy Regulatory Commission ("the FERC" or "the Commission"). The report also summarizes select decisions that have issued at the FERC in the area of FERC practice and procedure. The time frame covered by this report is the period between July 1, 2011 and June 30, 2012.*

According to the FERC, the FY 2013 budget request supports the agency's two primary goals: (1) to ensure rates that are "just, reasonable and not unduly discriminatory or preferential;" and (2) to "[p]romote the development of safe, reliable and efficient energy infrastructure that serves the public interest."2 For FY 2013, the FERC's requested budget remained the same as FY 2012 in the aggregate, although the number of full-time equivalents (FTEs) is reduced by 1.3%.3 The total budget request does reflect changes in the allocation of funds among the FERC's strategic goals. For example, the FERC's FY 2013 budget request reflects a 0.8% increase in funding (and a simultaneous 1.4% decrease in FTEs) related to the oversight and enforcement objective of the just and reasonable rates strategic goal.4 The safety objective related to the infrastructure strategic goal also received an increase of 0.7% (and a simultaneous decrease of 1.2% in FTEs).5

B. Plan for Retrospective Analysis of Existing Rules

Pursuant to the President's Executive Order calling for a periodic retrospective analysis of a regulatory agency's "significant regulations,"6 the FERC issued its Plan for Retrospective Analysis of Existing Rules on November 8, 2011.7 The executive order does not define what should be considered a significant regulation.

The FERC consulted with the Office of Management and Budget (OMB) and determined that a very limited number of the Commission's rules are considered "major rules" or "significant regulatory actions." The following rules are considered major rules, which, under the Plan are required to be reviewed at least every ten years:8

* Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities9

* Mandatory Reliability Standards for the Bulk Power System10

* Smart Grid Policy Statement11

Due to the limited number of FERC major rules, the Plan also includes a plan for a broader review of the Commission's rules. The Commission staffwill produce an internal list of other Commission rules that are considered of particular importance to the industry regulated by the Commission and the public.12 Commission staffwill drafta memorandum on a biennial basis detailing which of the listed regulations are ripe for review based on the ten-year review cycle.13 The memorandum will be made available for public comment as to which regulations ripe for review warrant a formal public review.14

II. SELECT DECISIONS RELEVANT TO FERC PRACTICE AND PROCEDURE

A. FERC Orders

1. Treatment of Late-Filed Requests for Rehearing

On April 12, 2012, in Turtle Bayou Gas Storage Co., the FERC reaffirmed its policy regarding rejection of late-filed requests for rehearing.15 On June 16, 2011, the FERC had denied a request by Turtle Bayou Gas Storage Company, LLC ("TB") for authorization under section 7 of the Natural Gas Act (NGA) to construct and operate a proposed natural gas storage facility.16 On July 19, 2011, TB filed a request for rehearing of the June 16 Order, which the Secretary rejected on July 20, 2011, "for having been submitted late,"17 since TB electronically filed the pleading at 6:25 PM on July 18, 2011,18 and, by operation of Rule 2001(a)(2) of the FERC's Rules of Practice and Procedure, the Secretary deemed it filed the next business day, July 19, 2011, thirty-one days after the June 16 Order.19 The Secretary rejected the request for rehearing because, pursuant to section 19(a) of the NGA, "a party to a proceeding [may] file a request for rehearing within 30 days after issuance of a final decision or other final order, and this statutory time period for rehearing cannot be waived or extended.

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