FERC Filings
MOTION TO INTERVENE, REQUEST FOR MODIFICATION, OR IN THE ALTERNATIVE REHEARING, OF THE ELECTRIC POWER SUPPLY ASSOCIATION re COMMUNICATIONS WITH COMMISSION-APPROVED MARKET MONITORS
BACKGROUND
In Order No. 607, the Commission promulgated its current regulations governing off-the-record communications, as codified in Rule 2201, clarifying the ground rules for ex parte communications. As an initial matter, Rule 2201 protects the due process rights of parties in Commission proceedings and prohibits communications between Commission decisional staff and members of the public on issues raised in contested on-the-record proceedings. While Order No. 607 did create exemptions from the coverage of Rule 2201 for certain types of communications, most of the exempted communications must be disclosed to the public through a notice published in the Federal Register. Moreover, Rule 2201 provides that the Commission may, by rule or order, modify any provision of the rule, as it applies to all or part of a proceeding, to the extent permitted by law.
In the January 16 Order, the Commission modified the application of its regulations governing off-the-record communications to treat communications between Commission decisional employees and Commission-approved market monitors as exempt communications, but such communications are not subject to the Commission’s notice and disclosure requirements. The January 16 Order recognizes that market monitors are “persons outside the agency,” as defined in Rule 2201, but concludes that nevertheless “they are practically an extension of, or a surrogate for, the Commission’s own market monitoring and investigative staff,” and thus should be permitted to engage in off-the-record communications with Commission decisional employees. The Commission stated that modification to Rule 2201 was necessary to permit open communications with market monitors and to facilitate the Commission’s surveillance of energy market operations.