Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Rules and Regulations 55723 

52See 5 U.S.C. 804(2). 

53See 5 U.S.C. 801(a)(1)(A). 

management system, 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. 

51. User assistance is available for 

eLibrary and the Commission’s website 

during normal business hours. For 

assistance, please contact FERC Online 

Support at 1–866–208–3676 (toll free) or 

202–502–6652 (email at 

FERCOnlineSupport@ferc.gov), or the 

Public Reference Room at 202–502–

8371, TTY 202–502–8659 (e-mail at 

public.referenceroom@ferc.gov). 

Effective Date and Congressional 

Notification 

52. This Final Rule will take effect 

October 24, 2005. The Commission has 

determined, with the concurrence of the 

Administrator of the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, that 

this rule is not a major rule within the 

meaning of section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996.52 The Commission 

will submit this final rule to both 

houses of Congress and the General 

Accountability Office.53

List of Subjects in 18 CFR Part 45 

Electric utilities, Reporting and 

recordkeeping requirements. 

By the Commission. 

Magalie R. Salas, 

Secretary. 

■ In consideration of the foregoing, the 

Commission amends part 45, Chapter I, 

Title 18, Code of Federal Regulations, as 

follows. 

PART 45—APPLICATION FOR 

AUTHORITY TO HOLD INTERLOCKING 

POSITIONS 

■ 1. The authority citation for part 45 is 

revised to read as follows: 

Authority: 16 U.S.C. 791a–825r, 2601–

2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352; 

3 CFR 142. 

■ 2. Section 45.3 is revised to read as 

follows: 

§ 45.3 Timing of filing application. 

(a) The holding of positions within 

the purview of section 305(b) of the Act 

shall be unlawful unless the holding 

shall have been authorized by order of 

the Commission. Nothing in this part 

shall be construed as authorizing the 

holding of positions within the purview 

of section 305(b) of the Act prior to 

order of the Commission on application 

therefor. Applications must be filed and 

authorization must be granted prior to 

holding any interlocking positions 

within the purview of section 305(b) of 

the Act; late-filed applications will be 

denied. The term ‘‘holding’’, as used in 

this part, shall mean acting as, serving 

as, voting as, or otherwise performing or 

assuming the duties and responsibilities 

of officer or director within the purview 

of section 305(b) of the Act. 

(b) Absent Commission action within 

60 days of a completed application to 

hold interlocking positions, an 

application will be deemed granted. 

Such authorization is subject to 

revocation by the Commission after due 

notice to applicant and opportunity for 

hearing. In any such proceeding, the 

burden of proof shall be upon the 

applicant to show that neither public 

nor private interests will be adversely 

affected by the holding of such 

positions. 

■ 3. In § 45.9, paragraph (b) is revised 

and paragraph (c)(5) is added to read as 

follows: 

§ 45.9 Automatic authorization of certain 

interlocking positions. 

* * * * * 

(b) Conditions of authorization. As a 

condition of authorization, any person 

authorized to hold interlocking 

positions under this section must 

submit, prior to performing or assuming 

the duties and responsibilities of the 

position, an informational report in 

accordance with paragraph (c) of this 

section, unless that person is already 

authorized to hold interlocking 

positions of the type governed by this 

section. Failure to timely file the 

informational report will constitute a 

failure to satisfy this condition, and will 

constitute automatic denial. 

(c) Informational report. * * * 

(5) A statement or an affirmation that 

the applicant has not yet performed or 

assumed the duties or responsibilities of 

the position which necessitated the 

filing of this informational report. 

[FR Doc. 05–19002 Filed 9–22–05; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 385 

[Docket No. RM05–33–000; Order No. 663] 

Revision of Rules of Practice and 

Procedure Regarding Issue 

Identification 

Issued September 16, 2005. 

AGENCY: Federal Energy Regulatory 

Commission. 

ACTION: Final rule. 

SUMMARY: The Federal Energy 

Regulatory Commission (Commission) is 

revising its regulations regarding filings. 

The regulations are revised to clarify 

that any issues that the movant wishes 

the Commission to address must be 

specifically identified in a section 

entitled ‘‘Statement of Issues.’’ This 

change will benefit the Commission by 

clarifying issues raised, and benefit 

movants by ensuring issues are 

addressed promptly and preserved for 

appeal. 

EFFECTIVE DATE: The rule will become 

effective September 23, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Carol C. Johnson, Office of the General 

Counsel, GC–13, Federal Energy 

Regulatory Commission, 888 First 

Street, NE., Washington, DC 20426, 

202–502–8521. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Joseph T. 

Kelliher, Chairman; Nora Mead 

Brownell, and Suedeen G. Kelly. 

1. The Federal Energy Regulatory 

Commission (Commission) is revising 

its rules of practice and procedure to 

clarify that any issues a movant wishes 

the Commission to address must be 

clearly set forth in a section entitled 

‘‘Statement of Issues,’’ that will 

reference representative Commission 

and court precedent on which the 

participant is relying. While the current 

rules require that pleadings include 

‘‘[t]he position taken by the participant 

filing any pleading * * * and the basis 

in fact and law for such position,’’ the 

Commission has found that movants 

sometimes fail to specify the issues they 

want the Commission to address, or the 

case law supporting their position. 18 

CFR 385.203(a)(7). This revision will 

benefit movants, and other parties to the 

proceeding, as well as the Commission. 

2. The way to ensure that an issue is 

addressed is for a movant to place it 

squarely before the Commission in a 

filing. Under the Administrative 

55724 Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Rules and Regulations 

1Rule 202 specifically excludes comments on 

rulemakings or comments on offers of settlement 

from the definition of pleading. 

2Order No. 486, Regulations Implementing the 

National Environmental Policy Act, 52 FR 47897 

(Dec. 17, 1987), FERC Stats. & Regs. Preambles 

1986–1990 ¶ 30,783 (1987). 

3 5 U.S.C. 601–612. 

Procedures Act (APA), 5 U.S.C. 

554(b)(3), ‘‘[w]hen private persons are 

the moving parties, other parties to the 

proceeding shall give prompt notice of 

issues controverted in fact or law 

* * *.’’ These amendments are 

consistent with that provision of the 

APA in that they require that a movant 

identify with specificity those issues he 

is raising with the Commission, and 

provide the applicable legal authority 

supporting his position. 

3. This rule will benefit all 

participants. Other parties will know 

with certainty which issues to address 

in any responsive pleadings. The 

Commission will know with certainty 

the issues being raised and the legal 

support cited as supporting that issue, 

enabling the Commission to respond 

promptly and thoroughly to such issues. 

Finally, movants will benefit by placing 

the issue squarely before the 

Commission for resolution. 

4. There have been numerous 

instances where appeals have been 

denied because an appellant failed to 

clearly raise an issue before the 

Commission on rehearing. See, e.g., 

California Dep’t of Water Resources v. 

FERC, 341 F.3d 906, 911(9th Cir. 2003) 

(issue not preserved for review where 

petitioner ‘‘raised the issue in a single 

sentence at the end of an unrelated 

section of its request for rehearing, 

without citing the statutory language it 

now urges [the court of appeals] to 

consider.’’); Intermountain Municipal 

Gas Agency v. FERC, 326 F.3d 1282, 

1285 (D.C. Cir. 2003); Coalition for the 

Fair and Equitable Regulation of Docks 

on the Lake of the Ozarks v. FERC, 297 

F.3d 771, 777 (8th Cir. 2002) (declining 

to find jurisdiction where petitioner’s 

‘‘brief does not show that it raised the 

* * * arguments in any recognizable 

form’’). Both the Natural Gas Act and 

the Federal Power Act require that 

issues be presented with specificity to 

the Commission on rehearing prior to 

any court appeal. 15 U.S.C. 717r(b) (‘‘No 

objection to the order of the 

Commission shall be considered by the 

court unless such objection shall have 

been urged before the Commission in 

the application for rehearing unless 

there is reasonable ground for failure to 

do so.’’); 16 U.S.C. 825l(a) (‘‘The 

application for rehearing shall set forth 

specifically the ground or grounds upon 

which such application is based * * *. 

No proceeding to review any orders of 

the Commission shall be brought by any 

person unless such person shall have 

made application to the Commission for 

a rehearing thereon.’’). This is a 

threshold issue; courts have found no 

jurisdiction to address issues that were 

not sufficiently raised in a request for 

rehearing. See, e.g., Intermountain v. 

FERC, 326 F.2d at 1285 (concluding the 

court lacked jurisdiction to address an 

issue because ‘‘so general and vague 

statement’’ does not satisfy the 

requirement in the Natural Gas Act that 

objections be ‘‘specifically urged.’’) 

(citations omitted). 

5. The general rules regarding content 

of pleadings are found in Rule 203, 

Content of pleadings and tariff or rate 

filings. 18 CFR 385.203. Rule 202 

defines pleadings to include ‘‘any 

application, complaint, petition, protest, 

notice of protest, answer, motion, and 

any amendment or withdrawal of a 

pleading.’’ 18 CFR 385.202.1 To date, 

§ 385.203(a)(7) has required that each 

pleading include, as appropriate, ‘‘[t]he 

position taken by the participant filing 

any pleading, to the extent known when 

the pleading is filed, and the basis in 

fact and law for such position.’’ The 

Commission is revising this provision to 

specify that the issues be set forth in a 

separate titled section. Revised 

§ 385.203(a)(7) requires that pleadings 

include: ‘‘[t]he position taken by the 

participant filing any pleading, to the 

extent known when the pleading is 

filed, and the basis in fact and law for 

such position, including a separate 

section entitled ‘‘Statement of Issues,’’

listing each issue presented to the 

Commission in a separately enumerated 

paragraph that includes representative 

Commission and court precedent on 

which the participant is relying.’’

6. This final rule also adds language 

to Rule 713 to clarify that a ‘‘Statement 

of Issues’’ section is also required in 

requests for rehearing as well as 

pleadings. Existing Rule 713 states that 

requests for rehearing ‘‘must * * * 

[c]onform to the requirements in Rule 

203(a) which are applicable to 

pleadings.’’ 18 CFR 713(c)(2). Therefore, 

the amended language in revised Rule 

203 already applies to rehearings; 

however, the requirement for a section 

entitled ‘‘Statement of Issues’’ is 

important enough that it warrants 

repeating in the rule on requests for 

rehearing. Revised 18 CFR 385.713(c)(2) 

is, therefore, revised to clarify that 

requests for rehearing must ‘‘conform to 

the requirements in Rule 203(a), which 

are applicable to pleadings, including, 

but not limited to, the requirement for 

a separate section entitled ‘‘Statement of 

Issues,’’ listing each issue in a 

separately enumerated paragraph that 

includes representative Commission 

and court precedent on which the party 

is relying.’’

7. If a movant fails to list issues in a 

separate section entitled ‘‘Statement of 

Issues,’’ such issues will be deemed to 

have been waived. This is consistent 

with existing Rule 2001, which states 

that filings that fail to meet applicable 

statutes, rules or orders may be rejected 

in full or all or part of the filing may be 

stricken. 18 CFR 385.2001(b). Sections 

385.203 and 385.713 are both revised to 

specify that issues that are not presented 

in separate paragraphs in the 

‘‘Statement of Issues’’ section will be 

deemed waived. 

8. The changes that are made in this 

rule are essentially formatting changes. 

The existing regulations already require 

issue identification and the basis in fact 

and law for positions asserted; this 

order simply requires that the issues 

and legal support for the position taken 

be set forth in a section entitled 

‘‘Statement of Issues,’’ thus making it 

easier for staff and others to know with 

certainty the issues and legal arguments 

being raised. 

Information Collection Statement 

9. The Office of Management and 

Budget’s (OMB’s) regulations require 

that OMB approve certain information 

collection requirements imposed by 

agency rule. 5 CFR 1320.12 (2005). This 

final rule contains no additional 

information reporting requirements, and 

is not subject to OMB approval. 

Environmental Analysis 

10. 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.2 The Commission has 

categorically excluded certain actions 

from this requirement as not having a 

significant effect on the human 

environment. Included in the exclusion 

are rules that are clarifying, corrective, 

or procedural that do not substantially 

change the effect of the regulations 

being amended. This proposed rule is 

procedural in nature and, therefore, falls 

under this exception; consequently, no 

environmental consideration is 

necessary. 

Regulatory Flexibility Act Certification 

11. The Regulatory Flexibility Act of 

1980 (RFA) 3 generally requires a 

description and analysis of final rules 

that will have significant economic 

impact on a substantial number of small 

entities. The Commission is not 

Federal Register / Vol. 70, No. 184 / Friday, September 23, 2005 / Rules and Regulations 55725 

required to make such analysis if a rule 

would not have such an effect. The 

Commission certifies that this rule will 

not have such an impact on small 

entities as it merely clarifies existing 

requirements. An analysis under the 

RFA therefore, is not required. 

Document Availability 

12. 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 

FERC’s Home Page (http://www.ferc.gov) 

and in FERC’s Public Reference Room 

during normal business hours (8:30 a.m. 

to 5 p.m. Eastern time) at 888 First 

Street, NE., Room 2A, Washington DC 

20426. 

13. From FERC’s Home Page on the 

Internet, this information is available in 

the Commission’s document 

management system, 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. 

14. User assistance is available for 

eLibrary and the FERC’s Web site during 

normal business hours. For assistance, 

please contact the Commission’s Online 

Support at 1–866–208–3676 (toll free) or 

TTY (202) 502–8659, or e-mail at 

FERCOnlineSupport@ferc.gov. You may 

also contact the Public Reference Room 

at (202) 502–8371 or e-mail at 

public.referenceroom@ferc.gov. 

Effective Date 

15. These regulations are effective 

immediately upon publication in the 

Federal Register. In accordance with 5 

U.S.C. 553(d)(3), the Commission finds 

that good cause exists to make this Final 

Rule effective immediately upon 

publication. It concerns only a matter of 

procedure affecting formatting of filings. 

16. The provisions of 5 U.S.C. 801 

regarding Congressional review of Final 

Rules does not apply to this Final Rule, 

because the rule concerns agency 

procedure and practice and will not 

substantially affect the rights of nonagency parties. 

17. The Commission is issuing this as 

a final rule without a period for public 

comment. Under 5 U.S.C. 553(b), notice 

and comment procedures are 

unnecessary where a rulemaking 

concerns only agency procedure and 

practice, or where the agency finds that 

notice and comment is unnecessary. 

This rule concerns only a clarification of 

a matter of agency procedure and will 

not significantly affect regulated entities 

or the general public. 

List of Subjects in 18 CFR Part 385 

Administrative practice and 

procedure, Electric utilities, Penalties, 

Pipelines, Reporting and recordkeeping 

requirements. 

By the Commission. 

Magalie R. Salas, 

Secretary. 

■ 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–825r; 

2601–2645; 28 U.S.C. 2461; 31 U.S.C. 3701, 

9701; 42 U.S.C. 7101–7352; 49 U.S.C. 60502; 

49 App. U.S.C. 1085 (1988). 

■ 2. Section 385.203 is amended by 

revising paragraph (a)(7) to read as 

follows: 

§ 385.203 Content of pleadings and tariff 

or rate filings (Rule 203). 

(a) * * * 

(7) The position taken by the 

participant filing any pleading, to the 

extent known when the pleading is 

filed, and the basis in fact and law for 

such position, including a separate 

section entitled ‘‘Statement of Issues,’’

listing each issue presented to the 

Commission in a separately enumerated 

paragraph that includes representative 

Commission and court precedent on 

which the participant is relying; any 

issue not so listed will be deemed 

waived; 

* * * * * 

■ 3. Section 385.713 is amended by 

revising paragraph (c)(2) to read as 

follows: 

§ 385.713 Request for rehearing (Rule 

713). 

* * * * * 

(c) * * * 

(2) Conform to the requirements in 

Rule 203(a), which are applicable to 

pleadings, including, but not limited to, 

the requirement for a separate section 

entitled ‘‘Statement of Issues,’’ listing 

each issue in a separately enumerated 

paragraph that includes representative 

Commission and court precedent on 

which the party is relying; any issue not 

so listed will be deemed waived; and 

* * * * * 

[FR Doc. 05–19004 Filed 9–22–05; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 272 

RIN 0790–AH90 

Administration and Support Basic 

Research 

AGENCY: Office of the Secretary, DoD. 

ACTION: Final rule. 

SUMMARY: This document provides 

general policy guidance and principles 

for the conduct of DoD Components’

Basic Research programs. It implements 

a general policy on the support of 

scientific research that is contained in 

the 1954 Executive Order 10521, 

‘‘Administration of Scientific Research 

by Agencies of the Federal 

Government,’’ March 17, 1954. It also 

implements guiding principles for the 

government-university research 

partnership that are contained in 

Executive Order 13185, ‘‘To Strengthen 

the Federal Government-University 

Research Partnership.’’

DATE: This final rule is effective 

September 23, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Mark Herbst, (703) 696–0372. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866 

This is a ‘‘significant regulatory 

Action,’’ as defined in Executive Order 

12866, in so far as the Office of 

Management and Budget reviewed and 

approved it for publication. This rule 

will not: (1) Have an annual effect on 

the economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; (2) create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in Executive Order 12866. 

Regulatory Flexibility Act of 1980 (5 

U.S.C. 605(b)) 

This regulatory action will not have a 

significant adverse impact on a 

substantial number of small entities.