125 FERC ¶ 61,063 

UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

18 CFR Part 385 

[Docket No. RM08-8-000; Order No. 718] 

Ex Parte Contacts and Separation of Functions 

(Issued October 16, 2008) 

AGENCY: Federal Energy Regulatory Commission. 

ACTION: Final Rule 

SUMMARY: The Commission is revising its regulations to clarify its rules governing ex 

parte contacts and separation of functions as they apply to proceedings arising out of 

investigations initiated under Part 1b of the Commission’s regulations. The revisions 

specify when Commission litigation staff and persons outside the Commission may 

contact decisional employees once the Commission has established proceedings on 

matters that had been investigated under Part 1b. The Commission also is revising its 

regulations governing intervention to clarify that intervention is not permitted as a matter 

of right in proceedings arising from Part 1b investigations. 

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

FEDERAL REGISTER]

FOR FURTHER INFORMATION CONTACT: 

Wilbur Miller 

Federal Energy Regulatory Commission 

888 First Street, NE 
Docket No. RM08-8-000 - 2 - 

Washington, DC 20426 

(202) 502-8953 

wilbur.miller@ferc.gov 

SUPPLEMENTARY INFORMATION:
UNITED STATES OF AMERICA 

FEDERAL ENERGY REGULATORY COMMISSION 

Before Commissioners: Joseph T. Kelliher, Chairman; 

 Suedeen G. Kelly, Marc Spitzer, 

 Philip D. Moeller, and Jon Wellinghoff. 

Ex Parte Contacts and Separation of Functions Docket No. RM08-8-000 

FINAL RULE 

ORDER NO. 718 

(Issued October 16, 2008) 

 

1. On May 15, 2008, the Commission issued a Notice of Proposed Rulemaking 

(NOPR)1

 proposing to revise its regulations governing ex parte contacts and interventions 

in the context of investigations under Part 1b of its regulations.2

 Specifically, the NOPR 

proposed to revise the Commission’s regulations governing ex parte contacts and 

separation of functions to clarify the circumstances in which Commission litigation staff 

and outside persons may contact Commissioners and decisional staff while an 

investigation is pending. The NOPR further proposed to clarify the Commission’s 

regulations governing intervention to provide that intervention is not available as of right 

in a proceeding arising from an investigation under Part 1b. 

 1

 Ex Parte Contacts and Separation of Functions, 73 FR 29451 (May 21, 2008), 

FERC Stats. & Regs. ¶ 32,634 (2008). 

2

 18 CFR Part 1b. 
Docket No. RM08-8-000 - 2 - 

I. Background

2. In the NOPR, the Commission noted that, while its regulation governing 

interventions provided that there is no intervention in a Part 1b investigation, the 

regulation did not address the subject of intervention in a proceeding arising from a 

Part 1b investigation.3

 The NOPR explained that the Commission’s precedents have 

recognized that, because a proceeding arising from an investigation is focused on the 

alleged conduct of a specific entity, intervention ordinarily is inappropriate and may 

delay or sidetrack the proceeding.4

 The NOPR therefore proposed to revise the 

regulation to provide that intervention is not available as of right in a proceeding arising 

from a Part 1b investigation. The Commission noted that, under this revision, it would 

retain the ability to permit intervention in cases where it might be appropriate, as the 

Commission had in fact done on past occasions. 

3. With respect to off-the-record communications, the NOPR explained that the 

current Commission rules created a potential inconsistency between the ability of 

Commission litigation staff and persons outside the Commission to contact 

Commissioners and decisional staff in situations where, as the result of a Part 1b 

investigation, the Commission initiates proceedings other than trial-type proceedings. 

The NOPR further noted some uncertainty within the regulated community about the 

 3

 Rule 214 of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.214. 

4

 See Energy Transfer Partners, L.P., 121 FERC ¶ 61,282, at P 19 & n.28 (2007) 

(ETP). 
Docket No. RM08-8-000 - 3 - 

application of the ex parte rules in the context of Part 1b investigations. The NOPR 

proposed to revise the Commission’s ex parte5

 and separation of functions6 regulations to 

provide that neither outside persons nor litigation staff may engage in off-the-record 

communications with Commissioners and decisional staff once the Commission has 

initiated a proceeding in connection with a Part 1b investigation, regardless of the type of 

proceeding. 

4. The NOPR also made reference to the Revised Policy Statement on Enforcement,7

which was issued at the same time as the NOPR. In the Revised Policy Statement on 

Enforcement, the Commission announced that, as a matter of policy, Commissioners and 

their personal staffs will no longer accept oral communications about pending 

investigations from the subjects of those investigations. Such communications will have 

to be in writing. This measure is a policy and not a part of the Commission’s regulations. 

5. In total, the Commission received 14 comments regarding the NOPR. Multiple 

State Utilities Commissions joined the comments of the National Association of 

Regulatory Utility Commissioners (NARUC).8

 In addition, the Industry Associations’ 

 5

 Rule 2201 of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.2201 (2008). 

6

 Rule 2202 of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.2202 (2008). 

7

 Enforcement of Statutes, Regulations, and Orders, 123 FERC ¶ 61,156 (2008). 

8

 The Public Utilities Commissions of California, Indiana, Nevada, Ohio, and 

South Dakota, as well as the Public Service Commissions of New York, Maryland, and 

(continued) 
Docket No. RM08-8-000 - 4 - 

(IA) comments represented the views of several entities.9

 In general, the commenters 

expressed appreciation of the Commission’s attempt to refine its enforcement practices, 

but expressed concern with both the proposal prohibiting intervention as a matter of right 

in enforcement proceedings, as well as the proposal regarding ex parte contacts with 

decisional staff prior to the issuance of an order to show cause.10

II. Discussion

A. Intervention

6. The bulk of the comments expressed concern about the NOPR’s proposal to revise 

the Commission’s intervention rules to provide that there is no intervention as a matter of 

right in proceedings arising from Part 1b investigations. For the most part, the 

commenters were concerned with specific situations that may arise from time to time in 

 

West Virginia, and the Illinois Commerce Commission, supported the comments of 

NARUC. 

9

 The Industry Association consists of the American Gas Association, the Edison 

Electric Institute, the Electric Power Supply Association, the Independent Petroleum 

Association of America, the Interstate Natural Gas Association of America, the Natural 

Gas Supply Association, and the Process Gas Consumers Group. 

10 Several commenters filed interventions or requested to intervene out of time, or 

requested to file late comments. These included the Indiana Utility Regulatory 

Commission, the Public Service Commission of West Virginia, the Illinois Commerce 

Commission, the Maryland Public Service Commission, the Public Utilities Commission 

of the State of California, the Public Service Commission of the State of New York, and 

the Public Utilities Commission of Ohio. The Commission will treat all such 

submissions as comments on the NOPR and has considered them regardless of when they 

were filed. 
Docket No. RM08-8-000 - 5 - 

which they believe intervention would be warranted. A few comments reflected broader 

concerns about possible restrictions on intervention. 

 1. Broader Issues

7. With respect to broader concerns, the National Rural Electric Cooperative 

Association and American Public Power Association (NRECA/APPA), and Ergon 

Energy Partners, LP (Ergon), assert that the Commission should not adopt the proposed 

rule abolishing intervention as a matter of right in enforcement proceedings. 

NRECA/APPA state that the proposed rule is “likely unlawful to the extent it purports to 

eliminate statutory intervention rights” and is unnecessary in light of the standards 

contained in Rule 214.11 They assert that it would be more consistent with the 

Administrative Procedure Act (APA) if the Commission followed the standards contained 

in the existing rule.12 They further suggest that, as an alternative to the automatic grant of 

a timely, unopposed intervention, the Commission could adopt procedures employed by 

other agencies that provide for public notice and comment periods on consent decrees.13 

Ergon, while agreeing that intervention in an investigation may be inappropriate, suggests 

that the Commission modify the rule to allow third parties the opportunity for meaningful 

 11 NRECA/APPA Comments at 2, 5. 

12 Id. at 6-9 (citing 5 U.S.C. 554(c)(1)). 

13 Id. at 6, 11. NRECA/APPA cite Federal Trade Commission and Department of 

Justice Regulations. Id. at 11. 
Docket No. RM08-8-000 - 6 - 

participation in proceedings that directly affect their interests, and to allow intervention 

once the Commission finds culpable conduct.14

8. We do not agree that the proposed revisions will contravene any statutory right to 

intervene. The APA requires agencies to give interested parties an opportunity for “the 

submission and consideration of facts, arguments, offers of settlement, or proposals of 

adjustment when time, the nature of the proceeding, and the public interest permit.”15 

The concerns underlying the NOPR’s proposal are directly related to these 

considerations. In an adjudicative proceeding before the Commission, third parties 

typically provide facts to assist us in developing a case. However, the purpose of 

investigations and enforcement proceedings is to examine instances of potential 

wrongdoing and take remedial action where needed. Only in unusual circumstances, as 

discussed below, would third parties have additional information that is necessary for the 

Commission’s investigation. As we have stated previously: 

As a general proposition, when a Part 1b investigation becomes an 

enforcement action, we find that it would be inappropriate to allow entities 

to intervene as parties to the proceeding. We find that allowing parties to 

intervene during an enforcement action potentially would be contrary to the 

public interest and would interfere with the Commission considering issues 

in a timely and judicious manner. This is because in such an enforcement 

proceeding, the Commission is considering closely the particular 

actions/inactions, rights, obligations and, potentially violations and 

penalties of the subject party -- here, ETP. Such a proceeding is different 

from a rate filing, rulemaking, or other proceeding where the rights of third 

 14 Ergon Comments at 2. 

15 5 U.S.C. 554(c)(1) (emphasis added). 
Docket No. RM08-8-000 - 7 - 

parties are clearly affected. Allowing third parties to intervene in 

enforcement proceedings in pursuit of their own objectives could delay or 

sidetrack a proceeding extending or even creating additional uncertainty for 

the subject party.16

Furthermore, the presence of intervenors could damage the ability of the Commission to 

conduct investigations, impair our ability to enter into settlements, and be contrary to the 

public interest. If our ability to enter into settlements is impaired, the result could be 

litigation of matters that could otherwise be settled, draining Commission enforcement 

resources. Since litigation could be prolonged, the benefits of settlements could be 

delayed, perhaps for years. Another result from the strain on the Commission’s 

investigative resources could be fewer investigations, with fewer remedies being imposed 

and fewer signals being sent to the industry regarding which sorts of behaviors might 

expose an entity to an enforcement action, along with greater costs and prolonged 

uncertainty imposed on the subjects of investigation. 

9. We consider our views in line with judicial precedent on the subject of an 

agency’s considerable discretion in making enforcement decisions.17 This discretion 

extends, among other things, to the decision whether to initiate an enforcement 

 16 ETP, 121 FERC ¶ 61,282, at P 19. 

17 See Heckler v. Chaney, 470 U.S. 821, 831 (1985) (agency decisions regarding 

conduct of enforcement actions are presumptively unreviewable by the courts). 
Docket No. RM08-8-000 - 8 - 

proceeding18 as well as the conduct of the proceeding and any settlement efforts.19 

Inclusion of third parties as a matter of right would necessarily cede a portion of the 

Commission’s discretion to those parties. Furthermore, the proposal made by 

NRECA/APPA that the Commission rely on the standards currently contained in Rule 

214 would limit or eliminate the Commission’s ability to take into account parameters 

such as time and the nature of the proceeding, even though those parameters are 

specifically set out in the APA. The current rule focuses on the nature of the prospective 

intervenor’s interest, not on the unique considerations that pertain to an enforcement 

proceeding.20 We therefore find that NRECA/APPA’s proposal is not appropriate to the 

enforcement context. 

10. In our view, the NOPR’s proposal addresses Ergon’s concerns that third parties be 

able to participate in proceedings that directly implicate their interests, where those 

interests can be addressed in a manner that does not unduly hamper the Commission’s 

enforcement efforts. As noted in the NOPR, the Commission has recognized that, on 

occasion, special circumstances might justify intervention in an enforcement proceeding. 

One such situation was an intervention in an enforcement proceeding where a state public 

 18 Baltimore Gas & Electric Co. v. FERC, 252 F.3d 456, 459 (D.C. Cir. 2001) 

(BG&E) (“agency’s decision not to exercise its enforcement authority, or to exercise it in 

a particular way, is committed to its absolute discretion”). 

19 Id. at 458 (decision to settle is committed to FERC’s nonreviewable discretion). 

20 Rule 214(b) of the Commission’s Rules of Practice and Procedure, 18 CFR 

385.214(b). 
Docket No. RM08-8-000 - 9 - 

service commission sought to clarify the impact of a settlement on state interests.21 The 

Commission also has noted that intervention might be appropriate to allow parties to 

participate in the allocation of disgorged profits.22 The proposed revisions to Rule 214 do 

not categorically bar interventions in proceedings arising from Part 1b investigations. 

Situations in which intervention would be appropriate are, however, necessarily limited 

in keeping with the nature of the enforcement function and the significant discretion 

accorded the Commission in that area. 

 2. Specific Situations

11. NARUC and the state regulatory bodies argue that state entities should be able to 

intervene given their unique position as regulators charged with serving the public 

interest.23 The state regulators argue that they have a direct interest in enforcement 

proceedings due to the impact on their ratepayers24 and that their collaboration will 

enhance enforcement efforts by avoiding duplicative efforts and inconsistent outcomes.25 

They further maintain that the NOPR’s proposal is inconsistent with section 308 of the 

 21 Williams Gas Pipelines Central, Inc., 94 FERC ¶ 61,285 (2001). 

22 ETP, 121 FERC ¶ 61,282 at P 19 & n.28. 

23 NARUC Comments at 5. 

24 Id. at 5-6. 

25 Id. at 6. 
Docket No. RM08-8-000 - 10 - 

Federal Power Act (FPA),26 which authorizes the Commission to admit interested state 

and local entities as parties to its proceedings.27 According to NARUC, the FPA contains 

“no qualifiers regarding the type of FERC proceedings” to which a state may be granted 

party status.28 NARUC proposes to allow states to intervene as a matter of right, and 

institute a process requiring “specific notification of parties that could have an interest in 

these determinations, including affected State commissions.”29 NARUC also states that 

the Commission should clarify that the resolution of a Part 1b proceeding will not affect 

the rights of states to pursue their own remedies for the wrongdoing that was the subject 

of the FERC investigation.30 The Public Service Commission of Maryland additionally 

asserts that state commissions must be able to intervene as of right to request rehearing in 

enforcement proceedings.31 Finally, the Indiana Utility Regulatory Commission proposes 

 26 16 U.S.C. 825g(a). 

27 NARUC Comments at 3; see New York Pub. Serv. Comm’n Comments at 4 

(Commission should preserve carefully crafted balance by continuing to recognize state 

interests); Pub. Serv. Comm’n of Maryland Comments at 3 (it would be 

counterproductive not to include state regulatory authority in enforcement proceedings). 

28 NARUC Comments at 3. 

29 Id. at 8. 

30 Id.

31 Pub. Serv. Comm’n of Maryland Comments at 4. 
Docket No. RM08-8-000 - 11 - 

that market monitors be allowed to intervene and be informed of the status of ongoing 

investigations.32

12. One other specific circumstance drawing concern was North American Electric 

Reliability Corp. (NERC) Reliability Standards investigations, particularly so-called 

“root cause” investigations to determine which entity is at fault for alleged violations of 

NERC reliability standards. 33 Public Service Electric and Gas Company (PSEG), while 

agreeing with the Commission generally about intervention in Part 1b investigations, 

states that, “because in the RTO/ISO construct responsibility for complying with NERC 

Reliability Standards does not in every case align with responsibilities between PJM and 

its members,” NERC Reliability Standards investigations are substantially different from 

other Part 1b investigations and participants deserve more latitude in joining other 

parties. PSEG asserts that, in the interest of due process, it may be necessary in 

enforcement proceedings arising from reliability standards investigations to “widen the 

scope of permitted interventions,”34 and that an entity accused of a NERC violation must 

be allowed to argue that another entity is responsible for the violation, and join them as a 

 32 Indiana Utility Regulatory Commission Comments at 3-4. 

33 There may be many situations where several entities could be investigated for 

violations for facts arising out of the same event and in such a case we would expect each 

entity would be afforded the full rights allowed to a subject of an enforcement action. 

Moreover, the conduct of any entity that might mitigate the severity of the violation or 

penalty as to the subject of an investigation can always be evaluated in an enforcement 

action regardless of whether such other entity is an intervenor. 

34 PSEG Comments at 3. 
Docket No. RM08-8-000 - 12 - 

party to the proceeding prior to the penalty phase in order to ensure that there is an 

accurate finding of the “root cause” entity.35

13. As we note above, nothing in the proposed revisions to Rule 214 precludes 

intervention in enforcement proceedings. While clarifying that there is no right to 

intervene in proceedings arising from Part 1b investigations, the Commission 

nevertheless retains the discretion to take into account specific circumstances that might 

favor intervention, although such circumstances would be uncommon and the 

participation by intervenors may be limited to specific matters. 

14. We disagree with PSEG that there is any fundamental difference concerning 

interventions in investigations carried out by the Regional Entities and the Electric 

Reliability Organization (ERO) with respect to possible violations of Reliability 

Standards approved by the Commission and in Part 1b investigations conducted by the 

Commission staff into the same kinds of violations. The Commission found in Order 

No. 672 that, in general, there should be no right to intervene in investigations carried out 

by Regional Entities or the ERO, for the same reasons that interventions are not permitted 

in our staff’s Part 1b investigations.36 We note that in its investigation, a Regional Entity 

 35 Id. at 5. 

36 Rules Concerning Certification of the Electric Reliability Organization; and 

Procedures for the Establishment, Approval, and Enforcement of Electric Reliability 

Standards, Order No. 672, 71 FR 8662 (Feb. 17, 2006), FERC Stats. & Regs. ¶ 31,204 at 

P 510, order on reh’g, Order No. 672-A, 71 FR 19814 (April 18, 2006), FERC Stats. & 

Regs. ¶ 31,212 (2006). 
Docket No. RM08-8-000 - 13 - 

or the ERO has authority to inquire into all facts relevant to whether a violation of a 

Reliability Standard occurred, and to identify all entities, whether listed on the ERO’s 

compliance registry or not, whose actions related to the possible violation of a Reliability 

Standard.37 

15. We also stated in Order No. 672 that if a Regional Entity or the ERO concluded 

that interventions would be appropriate in a particular proceeding it would conduct 

arising from an investigation into possible violations of Reliability Standards, it must 

receive advance authorization to do so from the Commission.38 The Commission, 

therefore, will be in a position to evaluate on a case-by-case basis whether allowing 

interventions in a particular Regional Entity or ERO proceeding would be appropriate.39 

We anticipate that the Commission could consider the issues PSEG mentions when 

making this determination in particular cases. 

 37 See Reliability Standard Compliance and Enforcement in Regions with 

Regional Transmission Organizations or Independent System Operators, 122 FERC 

¶ 61,247, at P 19 (2008) (NERC and Regional Entities will conduct thorough 

investigations that will examine the “root cause” of violations, and would extend such 

investigations to entities not listed on NERC’s compliance registry if necessary). 

38 Order No. 672 at P 511. 

39 See, e.g., North American Electric Reliability Council; North American Electric 

Reliability Corporation, 119 FERC ¶ 61,060, at P 150, order on reh’g, 120 FERC 

¶ 61,260 (2007) (recognizing exceptions to the general rule that no interventions should 

be permitted in Regional Entity and NERC enforcement proceedings, but stating that 

exceptions to this rule exist, which the Commission would evaluate in advance upon 

request on a case-by-case basis). 
Docket No. RM08-8-000 - 14 - 

16. We do not agree with the expansive view of state participation in enforcement 

proceedings taken by NARUC and some of the state regulatory bodies. The proposed 

revisions are in no way inconsistent with the FPA. Section 308 of the FPA states as 

follows: 

In any proceeding before it, the Commission, in accordance with such rules 

and regulations as it may prescribe, may admit as a party any interested 

State, State commission, municipality, or any representative of interested 

consumers or security holders, or any competitor of a party to such 

proceeding, or any other person whose participation in the proceeding may 

be in the public interest.40

Although this provision recognizes the role of state authorities, it does not draw a 

fundamental distinction between them and other interested persons. Furthermore, the 

FPA leaves the Commission with discretion to prescribe appropriate rules and to admit 

parties when it is “in the public interest.” By using ‘may’ instead of ‘shall,’ it is clear that 

section 308 establishes no right of intervention. The section merely authorizes the 

Commission to admit state commissions into FERC proceedings. Nothing in the 

provision prevents the Commission from recognizing the differing public interests that 

may be at stake in different types of proceedings. The provision likewise places no 

limitations on the considerations that the Commission may take into account in 

determining the public interest. 

 40 16 U.S.C. 825g(a). Section 15(a) of the Natural Gas Act, 15 U.S.C. 717n(a), 

includes a nearly identical provision. 
Docket No. RM08-8-000 - 15 - 

17. In our view, as a general matter the availability of intervention in enforcement 

proceedings would be inconsistent with the discretion in pursuing enforcement measures 

that Congress has afforded the Commission. The D.C. Circuit, for instance, has 

determined that the Natural Gas Act (NGA)41 places no limitations on the Commission’s 

exercise of its enforcement powers. The court has stated, “At every turn the NGA 

confirms that FERC’s decision how, or whether, to enforce that statute is entirely 

discretionary.”42 Congress evinced no intention to “cabin FERC’s enforcement 

discretion,” because if it had, it would have used “obligatory terms such as ‘must,’ 

‘shall,’ and ‘will,’ not the wholly precatory language employed in the act.”43

18. We also see no reason why the revisions to Rule 214 would have any impact upon 

the ability of states to pursue remedies for wrongdoing that was the subject of a Part 1b 

investigation. The revisions address only the availability of intervention in proceedings 

arising from Part 1b investigations. As the above discussion shows, the Commission’s 

enforcement powers lie within its own discretion and the revisions therefore do not 

deprive any person or entity of any remedies that it previously possessed. 

 41 15 U.S.C. 717, et seq. There is no meaningful difference between the relevant 

provisions of the NGA and those of the FPA. Compare 15 U.S.C. 717s(a) with 16 U.S.C. 

825m, and 15 U.S.C. 717m with 16 U.S.C. 825f. Analogous provisions of the NGA and 

FPA are to be read in pari materia. See, e.g., Arkansas-Louisiana Gas Co. v. Hall, 453 

U.S. 571, 577 n.7 (1981). 

42 BG&E, 252 F.3d at 460. 

43 Id. at 461. 
Docket No. RM08-8-000 - 16 - 

19. Although we fully recognize the significant role played in oversight and 

enforcement by state regulatory commissions, the Commission has the sole authority to 

enforce its own jurisdictional statutes. As the courts have recognized, enforcement 

authority is generally considered discretionary with the agencies to which it is granted. 

In our view, the effective exercise of that discretion requires that enforcement 

proceedings remain focused on the primary issue, which is the alleged misconduct of the 

respondent. The revisions to Rule 214 nevertheless will leave the Commission with the 

ability in appropriate cases to permit the participation of third parties, but that 

participation will be tailored to appropriate situations based on factors that are unique to 

the particular enforcement context. 

20. For similar reasons, we are not persuaded by the various suggestions that we 

solicit participation in investigations and enforcement proceedings. Given that we expect 

intervention to be permitted only in unusual situations, measures designed to invite such 

participation will in most cases result in delay and distraction from the central issues. 

Consequently, we find it appropriate to adopt the revisions to Rule 214 contained in the 

NOPR. 

B. Off-the-Record Communications

21. The Commission received comments on the NOPR’s proposed revisions to its ex 

parte and separation of functions rules from IA representing the views of several entities. 

The IA states that it supports the Commission’s goal of equal treatment of investigative 

staff and subjects of an investigation subsequent to a show cause order, and argues that 
Docket No. RM08-8-000 - 17 - 

the Commission should extend the proposal to include the early stages of the 

investigation.44 In its view, allowing Commission investigative staff unrestricted access 

to decisional employees, while allowing the subject of an investigation only written 

communication, puts the subject of an investigation at a disadvantage in making its case 

to the Commission. The IA specifically requests that the Commission “allow oral 

communications with Commissioners and other decision-making employees by both 

[i]nvestigative [s]taff and the [s]ubject.”45

22. The IA also makes specific procedural suggestions. It maintains that the subject of 

an investigation should be allowed to respond to the investigator’s report and should be 

provided with “the full set of material facts and legal conclusions appearing in the 

investigator’s report, at the same time the report or draft is submitted to any decisional 

employee.”46 It further requests clarification of Order No. 711.47 That Order states that a 

“notice of intent to seek a show cause order ‘shall provide sufficient information and 

facts’ to enable the Subject to prepare a response.”48 The IA requests that “sufficient 

 44 IA Comments at 2. 

45 Id. at 8-9. 

46 Id. at 3. 

47 Submissions to the Commission upon Staff Intention to Seek an Order to Show 

Cause, Order No. 711, 73 FR 29431 (May 21, 2008), FERC Stats. & Regs. ¶ 31,270 

(2008). 

48 Id. at 9. 
Docket No. RM08-8-000 - 18 - 

information and facts” be clarified to mean “all of the material facts and legal conclusions 

being relied on in the investigator’s report.”49 It further requests that a subject be allowed 

to respond to an investigator’s report if it is revised after a response is filed.50

23. The IAs’ comments are outside the scope of this rulemaking. Although the NOPR 

made reference to the Revised Policy on Enforcement, which was issued on the same 

date, it was the latter that announced the policy whereby neither Commissioners nor their 

personal staffs will receive oral communications, in person or by telephone, about 

pending investigations from the subjects of those investigations. That policy does not 

appear in any regulation proposed here. The NOPR proposed only to revise the rules on 

separation of functions and off-the-record communications to clarify that both outside 

persons and Commission investigative staff will be able to communicate with decisional 

staff during the same time periods, specifically while an investigation is pending until the 

point at which the Commission initiates an enforcement proceeding. The NOPR did not 

in any way address the procedures for staff to submit, and the subject of an investigation 

to respond to, a request for a show cause order. Those procedures therefore cannot be 

addressed properly here. The Commission therefore will adopt the proposed revisions to 

its rules governing off-the-record communications and separation of functions. 

 49 Id.

50 Id. at 10. 
Docket No. RM08-8-000 - 19 - 

III. Information Collection Statement

24. Office of Management and Budget (OMB) regulations require OMB to approve 

certain information collection requirements imposed by agency rule.51 This Final Rule 

does not contain any information collection requirements and compliance with the OMB 

regulations is thus not required. 

IV. Environmental Analysis

25. 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.52 Issuance of this Final Rule does not represent a major 

federal action having a significant adverse effect on the quality of the human 

environment under the Commission's regulations implementing the National 

Environmental Policy Act of 1969. Part 380 of the Commission's regulations lists 

exemptions to the requirement to draft an Environmental Analysis or Environmental 

Impact Statement. Included is an exemption for procedural, ministerial or internal 

administrative actions.53 This rulemaking is exempt under that provision. 

 51 5 CFR 1320.12. 

52 Regulations Implementing the National Environmental Policy Act of 1969, 

Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations 

Preambles 1986-1990 ¶ 30,783 (1987). 

53 18 CFR 380.4(1) and (5). 
Docket No. RM08-8-000 - 20 - 

V. Regulatory Flexibility Act

26. The Regulatory Flexibility Act of 1980 (RFA)54 generally requires a description 

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

number of small entities. This Final Rule concerns solely procedural matters. The 

Commission certifies that it will not have a significant economic impact upon participants 

in Commission proceedings. An analysis under the RFA is not required. 

VI. Document Availability

27. 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. 

28. 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. 

 54 5 U.S.C. 601-12. 
Docket No. RM08-8-000 - 21 - 

29. 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 1-866-

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. 

VII. Effective Date and Congressional Notification

30. These regulations are effective [insert date 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. 

List of subjects in 18 CFR Part 385

18 CFR Part 385

Administrative practice and procedure, Electric utilities, Penalties, Pipelines, Reporting 

and recordkeeping requirements. 

By the Commission. 

( S E A L ) 

Nathaniel J. Davis, Sr., 

 Deputy Secretary. 
Docket No. RM08-8-000 - 22 - 

 In consideration of the foregoing, the Commission amends Part 385, Chapter I, 

Title 18, Code of Federal Regulations, as follows. 

PART 385—RULES OF PRACTICE AND PROCEDURE

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

Authority: 5 U.S.C. 551–557; 15 U.S.C. 717–717z, 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). 

2. Amend section 385.214 by adding new paragraph (a)(4) to read as follows: 

§ 385.214 Intervention (Rule 214).

(a) * * * 

 (4) No person, including entities listed in paragraphs (a)(1) and (a)(2) of this 

section, may intervene as a matter of right in a proceeding arising from an investigation 

pursuant to Part 1b of this chapter. 

3. Amend section 385.2201 by revising paragraph (c)(1) to read as follows: 

§ 385.2201 Rules governing off-the-record communications (Rule 2201).

* * * * * 

 (c) * * * 

 (1) Contested on-the-record proceeding means 

 (i) Except as provided in paragraph (c)(1)(ii), any proceeding before the 

Commission to which there is a right to intervene and in which an intervenor disputes any 
Docket No. RM08-8-000 - 23 - 

material issue, any proceeding initiated pursuant to rule 206 by the filing of a complaint 

with the Commission, any proceeding initiated by the Commission on its own motion or 

in response to a filing, or any proceeding arising from an investigation under part 1b of 

this chapter beginning from the time the Commission initiates a proceeding governed by 

part 385 of this chapter. 

(ii) The term does not include notice-and-comment rulemakings under 5 U.S.C. 

553, investigations under part 1b of this chapter, proceedings not having a party or 

parties, or any proceeding in which no party disputes any material issue. 

* * * * * 

4. Amend section 385.2202 by revising it to read as follows: 

§ 385.2202 Separation of functions (Rule 2202).

In any proceeding in which a Commission adjudication is made after hearing, or in 

any proceeding arising from an investigation under part 1b of this chapter beginning from 

the time the Commission initiates a proceeding governed by part 385 of this chapter, no 

officer, employee, or agent assigned to work upon the proceeding or to assist in the trial 

thereof, in that or any factually related proceeding, shall participate or advise as to the 

findings, conclusion or decision, except as a witness or counsel in public proceedings.