FERC Filings
Motion for Clarification of the Electric Power Supply Association re: Investigation of Terms and Conditions of Public Utility Market-Based Rate Authorizations
The Commission Should Clarify that the Ex Parte Rules Do Not Apply to Docket No. EL01-118
There are two key reasons why the Commission should clarify that the ex parte rules do not apply to the Electric Conditioning Order. First, the goals of the ex parte rules are not served by their application in this particular proceeding and second, there is no reason to use different procedural processes to develop the same market behavior rules for the competitive gas and electric industries.
By this motion, EPSA does not take issue with the Commission’s choice to propose its market behavior rules in Docket No. EL01-118 under FPA § 206, rather than through a notice and comment rulemaking proceeding. However, because the Commission is proposing rules of generic applicability, and has noticed such proposed rules for public comment in both proceedings, the Commission should treat both proceedings as rulemakings for purposes of the ex parte rules.
Under the Commission’s regulations, the ex parte rules are applicable to “contested on-the-record proceedings,” which includes FPA § 206 proceedings initiated by the Commission, such as Docket No. EL01-118. 18 C.F.R. § 385.2201(a), (c). They, however, specifically do not apply to notice-and-comment rulemakings. 18 C.F.R. § 2201(c)(1)(i). The Commission exempted notice and comment rulemaking from the ex parte rules, noting that ex parte communications are “proper and often necessary to the full development of a rulemaking.” Regulations Governing Off-the-Record Communications, 63 Fed. Reg. 51312, 51315 (Sept. 25, 1998) (notice of proposed rulemaking).
The Electric Conditioning proceeding is not a typical contested EL proceeding. It is not a case in which the outcome will affect only one market participant, such as a public utility, or a narrow group of market participants, such as customers of a single public utility, and it is not a case in which the outcome is dependent on an individual utility’s tariff or cost of service. Rather, just like a notice and comment rulemaking, where market participants will have different positions on the merits of the Commission-proposed rules, the outcome of the Electric Conditioning proceeding will have generic applicability and will impact all market participants. Thus, the fundamental principles underpinning the application of the ex parte rules to EL dockets generally, i.e., private access to the decisionmaker and reliance on secret evidence, do not apply here.
Consequently, there is no reason to treat the Electric Conditioning proceeding any differently than the Gas Conditioning Rulemaking with respect to the application of the ex parte rules. In both, the Commission proposes generic rules applicable to individual market participants; both proposals are of interest to EPSA members who sell electricity and purchase natural gas for use in generation facilities; both proposals have been published in the Federal Register and are out for public comment; and both proposals seek the development of workable market rules for both the competitive natural gas and electric industries. In both proceedings, the ultimate Commission rules and requirements will be improved by a process that allows the free flow of information between market participants and the Commission, and confusion, rehearing requests and after-the-fact litigation will be minimized.