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Easing of FERC Ex Parte Rules Proposed

Easing of FERC Ex Parte Rules Proposed

FERC last week proposed changes that would lead in certain instances to a less restrictive policy for off-the-record communications between the agency and those outside of it, particularly with respect to staff communications while conducting environmental investigations.

"In many respects, we reaffirm the way we've always done business here. But in one profound respect we make a change. We give ourselves, I think primarily our staffs [that are] conducting environmental investigations, more leeway to talk to people on the outside without running afoul of our rules. This is probably a very good idea," said Commissioner William Massey. The changes were proposed in a notice of proposed rulemaking (NOPR).

"Some have found that ex parte rules help make the regulatory process here impenetrable and unfriendly, and not particularly responsive," noted Chairman James Hoecker. "I feel strongly that this [NOPR] will contribute to the Commission's openness."

In making the changes, he said the Commission was confronted with the dilemma of fulfilling different roles. On one hand, it should be a "real customer service organization," and on the other hand it is an "adjudicator of contested facts." Personally, Hoecker said he would prefer to see "much more liberalized ex parte rules that help foster communications with state and federal agencies, with other persons who have information [that is] valuable or who share jurisdiction with this agency." But he noted that FERC is bound by federal law that sets "clear limits" on its outside communications to ensure that "our decisions remain fair."

The Commission has tried to strike an appropriate balance between "openness" and "impartiality" in the proposed changes, Hoecker said.

Specifically, the NOPR would prohibit all off-the-record communications pertaining to a contested Commission case, but it would not apply to "procedural inquiries, general background or policy discussions, or informal rulemaking proceedings." The biggest change is that FERC staff now would be permitted to engage in off-the-record communications while preparing an environmental assessment or an environmental impact statement, according to the NOPR. In addition, staff could have ex parte discussions with landowners, who aren't party to the proceedings then, but whose property may be affected by the pending proceedings, it noted [RM98-1].

Moreover, the proposed rules would permit the Commission to request information from federal, state or local agencies, which aren't parties to a specific proceeding, or in cases where FERC and an outside agency share jurisdiction. Also exempted from the ex parte rules would be communications related to certain emergencies, as well as inquiries or referrals of a constituent's correspondence from an elected official, who is not a party to a specific proceeding.

All exemptions, however, would be included in the "decisional record" of a proceeding, and notice would be provided to give parties an opportunity to review and respond to the off-the-record communications, the NOPR said.

Susan Parker

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