FERC Filings
Motion for Clarification of the Electric Power Supply Association re: Investigation of Terms and Conditions of Public Utility Market-Based Rate Authorizations
Background
On June 26, 2003, the Commission issued an order in the captioned proceeding in which it proposes six market behavior rules to be added to all existing and future market-based rate tariffs of public utilities (Electric Conditioning Order). As directed, the order was published in the Federal Register and the Commission now seeks comments on the proposal. Electric Conditioning Order 52.
On the same day, the Commission issued a notice of proposed rulemaking, proposing to amend blanket gas sales certificates to include market behavior rules applicable to gas sales that remain within the Commission’s jurisdiction. The proposed market behavior rules are very similar to the rules proposed in the June 26 Order, in particular the generic prohibition against market manipulation. See Amendments to Blanket Sales Certificates, 103 FERC 61,350 (2003) (Gas Conditioning Rulemaking).
Both these orders have all of the earmarks of a formal notice and comment rulemaking proceeding—generic applicability, publication in Federal Register and a similar comment period. However, for the Electric Conditioning Order the Commission chose to act under Section 206 of the Federal Power Act (FPA) in an EL docket and in the Gas Conditioning Rulemaking it has chose to act through a notice and comment rulemaking process. As a result, the Commission’s ex parte rules are applicable to the electric proceeding and not to the gas proceeding, even though the two proceedings propose similar rules for similar reasons. This is a distinction without a difference that the Commission should rectify by treating the two proceedings similarly for the purpose of applying the ex parte rules.