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

“In many respects, we reaffirm the way we’ve always donebusiness here. But in one profound respect we make a change. Wegive ourselves, I think primarily our staffs [that are] conductingenvironmental investigations, more leeway to talk to people on theoutside without running afoul of our rules. This is probably a verygood idea,” said Commissioner William Massey. The changes wereproposed in a notice of proposed rulemaking (NOPR).

“Some have found that ex parte rules help make the regulatoryprocess here impenetrable and unfriendly, and not particularlyresponsive,” noted Chairman James Hoecker. “I feel strongly thatthis [NOPR] will contribute to the Commission’s openness.”

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

The Commission has tried to strike an appropriate balancebetween “openness” and “impartiality” in the proposed changes,Hoecker said.

Specifically, the NOPR would prohibit all off-the-recordcommunications pertaining to a contested Commission case, but itwould not apply to “procedural inquiries, general background orpolicy discussions, or informal rulemaking proceedings.” Thebiggest change is that FERC staff now would be permitted to engagein off-the-record communications while preparing an environmentalassessment or an environmental impact statement, according to theNOPR. In addition, staff could have ex parte discussions withlandowners, who aren’t party to the proceedings then, but whoseproperty may be affected by the pending proceedings, it noted[RM98-1].

Moreover, the proposed rules would permit the Commission torequest information from federal, state or local agencies, whicharen’t parties to a specific proceeding, or in cases where FERC andan outside agency share jurisdiction. Also exempted from the exparte rules would be communications related to certain emergencies,as well as inquiries or referrals of a constituent’s correspondencefrom an elected official, who is not a party to a specificproceeding.

All exemptions, however, would be included in the “decisionalrecord” of a proceeding, and notice would be provided to giveparties an opportunity to review and respond to the off-the-recordcommunications, the NOPR said.

Susan Parker

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