163 FERC ¶ 61,118

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Part 385

[Docket No. RM18-7-000; Order No. 846]

Withdrawal of Pleadings

(Issued May 17, 2018)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

SUMMARY: The Commission adopts a more accurate title of “Withdrawal of pleadings 

(Rule 216),” for Rule 216 of the Commission’s Rules of Practice and Procedure. The 

Commission also clarifies the text of the Rule.

EFFECTIVE DATE: This rule will become effective [30 days after publication in the 

Federal Register]

FOR FURTHER INFORMATION CONTACT:

Vince Mareino

888 First Street NE

Washington, DC 20426

(202) 502-6167

Vince.Mareino@ferc.gov

SUPPLEMENTARY INFORMATION:

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UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Kevin J. McIntyre, Chairman;

 Cheryl A. LaFleur, Neil Chatterjee,

Robert F. Powelson, and Richard Glick.

Withdrawal of Pleadings Docket No. RM18-7-000

ORDER NO. 846

FINAL RULE

(Issued May 17, 2018)

In this Final Rule, as proposed in its Notice of Proposed Rulemaking,1 1. the 

Commission revises the title and text of Rule 216 of the Commission’s Rules of Practice 

and Procedure, 18 CFR 385.216. The Commission adopts the more accurate title of 

“Withdrawal of pleadings (Rule 216).” The Commission also clarifies the text of the 

Rule.

I. Discussion

2. The Commission shall implement two changes to Rule 216. First, the preexisting 

title may confuse some readers by implying that Rule 216 governs the withdrawal of 

tariff or rate filings, which are instead governed by separate regulations.

2

 Thus, the 

Commission revises the title from “Withdrawal of pleadings and tariff or rate filings 

(Rule 216)” to “Withdrawal of pleadings (Rule 216).”

3. Second, the Commission revises the first sentence of Rule 216(a) to read, “Any 

person may seek to withdraw its pleading by filing a notice of withdrawal.” This change 

clarifies that it is the person who has submitted a pleading that may withdraw that 

pleading. The Commission also makes a conforming change, to refer to “person” rather 

than “party,” in Rule 216(c).

 1 Withdrawal of Pleadings, 83 FR 8019 (February 23, 2018), 162 FERC ¶ 61,111

(2018) (NOPR).

2 E.g., 18 CFR 35.17, 154.205, 284.123, 341.13 (2017). 

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4. The Commission received one comment, from A. Hewitt Rose III, an attorney 

who practices before the Commission. Mr. Rose generally supports the proposed rule but 

objects to the use of the word “its” in the phrase, “Any person may seek to withdraw its 

pleading by filing a notice of withdrawal.” Mr. Rose argues that “it” is not necessarily 

the correct pronoun for the word “person,” which refers not only to legal entities but also 

to natural persons. Mr. Rose notes, however, that the best replacement pronoun, “their,” 

is not universally recognized as the correct pronoun for a singular subject. Therefore, 

Mr. Rose proposes adjusting the sentence so that “it” refers to the pleading, not the 

person: “Any person that filed a pleading may seek to withdraw it by filing a notice of 

withdrawal.” We accept Mr. Rose’s proposal, which serves the Commission’s goal of 

developing a clear and concise set of Rules of Practice and Procedure, and we revise Rule 

216(a) accordingly. 

II. Regulatory Requirements

A. Information Collection Statement

5. Review by the Office of Management and Budget, pursuant to section 3507(d) of 

the Paperwork Reduction Act of 1995, is not required since this Final Rule does not 

contain new or modified information collection or recordkeeping requirements.

B. Environmental Analysis

6. The Commission is required to prepare an Environmental Assessment or an 

Environmental Impact Statement for any action that may have a significant adverse effect 

on the human environment.3 Section 380.4(a)(1) of the Commission’s regulations 

exempts certain actions from the requirement that an Environmental Analysis or 

Environmental Impact Statement be prepared.4 Included is an exemption for procedural 

actions. As this Final Rule falls within that exemption, issuance of the Final Rule does 

not represent a major federal action having a significant adverse effect on the human 

environment under the Commission’s regulations implementing the National 

Environmental Policy Act, and, thus, does not require an Environmental Analysis or 

Environmental Impact Statement.

 3 Regulations Implementing National Environmental Policy Act of 1969, Order 

No. 486, FERC Stats. & Regs. ¶ 30,783 (1987) (cross-referenced at 41 FERC ¶ 61,284).

4 18 CFR 380.4(a)(1) (2017).

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C. Regulatory Flexibility Act Analysis

The Regulatory Flexibility Act of 1980 (RFA)5 7. generally requires a description 

and analysis of proposed rules that will have significant economic impact on a substantial 

number of small entities. This Final Rule concerns clarifications to agency procedure. 

The Commission certifies that the proposed clarifications will not have a significant

economic impact upon a substantial number of small entities in Commission proceedings 

and, therefore, an analysis under the RFA is not required.

D. Document Availability

8. In addition to publishing the full text of this document in the Federal Register, the 

Commission provides all interested persons an opportunity to view and/or print the 

contents of this document via the Internet through the Commission’s Home Page 

(http://www.ferc.gov) and in the Commission’s Public Reference Room during normal 

business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, 

Washington DC 20426.

9. From the Commission’s Home Page on the Internet, this information is available 

on eLibrary. The full text of this document is available on eLibrary in PDF and 

Microsoft Word format for viewing, printing, and/or downloading. To access this 

document in eLibrary, type the docket number excluding the last three digits of this 

document in the docket number field.

10. User assistance is available for eLibrary and the Commission’s website during 

normal business hours from FERC Online Support at 202-502-6652 (toll free at 866-208-

3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at 202-502-

8371, TTY 202-502-8659. E-mail the Public Reference Room at 

public.referenceroom@ferc.gov.

E. Effective Date and Congressional Notification

11. These regulations are effective [30 days after publication in the Federal 

Register]. The Commission has determined, with the concurrence of the Administrator 

of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major 

rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness 

Act of 1996.

 5 5 U.S.C. 601-12 (2012).

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List of subjects in 18 CFR Part 385

Electric power rates

Electric power

Reporting and recordkeeping requirements

By the Commission.

( S E A L )

Kimberly D. Bose,

Secretary.

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In consideration of the foregoing, the Commission hereby amends Part 385, 

Chapter I, Title 18, Code of Federal Regulations, as follows:

1. The authority citation for part 385 continues to read as follows:

Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 

791a-825v, 2601-2645; 28 U.S.C. 2461; 31 U.S.C 3701, 9701; 42 U.S.C. 

7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 

(1988); 28 U.S.C. 2461 note (1990); 28 U.S.C. 2461 note (2015).

2. Revise the title of section 385.216 to read as follows:

§ 385.216 Withdrawal of pleadings (Rule 216).

3. Revise section 385.216(a) to read as follows:

(a) Filing. Any person that filed a pleading may seek to withdraw it by 

filing a notice of withdrawal. The procedures provided in this section do 

not apply to withdrawals of tariff or rate filings, which may be withdrawn 

only as provided in the regulations under this chapter.

* * *

4. Revise section 385.216(c) to read as follows:

(c) Conditional withdrawal. In order to prevent prejudice to other 

participants, a decisional authority may, on motion or otherwise, condition 

the withdrawal of any pleading upon a requirement that the withdrawing 

person leave material in the record or otherwise make material available to 

other participants.

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Document Content(s)

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