Procedures for Disposition of Contested Audit Matters, 65866-65871 [05-21422]
Download as PDF
<![CDATA[
65866
Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Proposed Rules
AFM to include the information specified in
page 4 of Dornier 328 AOT–328–27–016,
dated July 31, 1998. This may be
accomplished by inserting a copy of page 4
of the AOT into the AFM.
New AFM Revision
Issued in Renton, Washington, on October
20, 2005.
Kalene C. Yanamura,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 05–21697 Filed 10–31–05; 8:45 am]
(g) For all airplanes: Within 3 days after
January 8, 2001 (the effective date of AD
2000–24–03), revise the Dornier 328 FAAapproved AFM as specified in paragraphs
(g)(1) and (g)(2) of this AD. Concurrently with
this AFM revision, remove the AFM
revisions required by paragraph (f) of this AD
from the AFM.
(1) Revise the Normal Procedures Section
to include the information specified in pages
4, 5, and 6 of Dornier 328 AOT–328–27–016,
Revision 1, dated October 28, 1998. This may
be accomplished by inserting a copy of pages
4, 5, and 6 of the AOT into the AFM.
(2) Revise the Abnormal Procedures
Section to include the information specified
in page 3 of Dornier 328 AOT–328–27–016,
Revision 1, dated October 28, 1998. This may
be accomplished by inserting a copy of page
3 of the AOT into the AFM.
BILLING CODE 4910–13–P
Modification
This document corrects the
preamble to a proposed rule published
in the Federal Register on September
21, 2005, regarding flightdeck door
monitoring and crew discreet alerting
systems. This correction adds two
vendors that sell video camera systems
to the ones cited in the preamble.
FOR FURTHER INFORMATION CONTACT:
Allen A. Mattes, Office of Aviation
Policy and Plans, telephone; (202) 267–
3412.
Alternative Methods of Compliance
(AMOCs)
(i)(1) The Manager, International Branch,
ANM–116, FAA, Transport Airplane
Directorate, has the authority to approve
AMOCs for this AD, if requested in
accordance with the procedures found in 14
CFR 39.19.
(2) Before using any AMOC approved in
accordance with 14 CFR 39.19 on any
airplane to which the AMOC applies, notify
the appropriate principal inspector in the
FAA Flight Standards Certificate Holding
District Office.
(3) AMOCs approved previously in
accordance with AD 98–22–07, amendment
39–10854, are approved as AMOCs with
paragraph (f) of this AD.
(4) AMOCs approved previously in
accordance with AD 2000–24–03,
amendment 39–12010, are approved as
AMOCs with this AD.
Related Information
(j) German airworthiness directive 1998–
359/3, dated April 6, 2000, also addresses the
subject of this AD.
15:15 Oct 31, 2005
Jkt 208001
Issued in Washington, DC on October 25,
2005.
Anthony F. Fazio,
Director, Office of Rulemaking.
[FR Doc. 05–21747 Filed 10–31–05; 8:45 am]
BILLING CODE 4910–13–P
Federal Aviation Administration
DEPARTMENT OF ENERGY
14 CFR Part 121
Federal Energy Regulatory
Commission
[Docket No. FAA–2005–22449]
RIN 2120–AI16
Flightdeck Door Monitoring and Crew
Discreet Alerting Systems
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking;
correction.
AGENCY:
SUMMARY:
(h) For airplanes with serial numbers 3005
through 3099 inclusive, 3101 through 3108
inclusive, and 3110 through 3119 inclusive:
Within 5 months after January 8, 2001,
modify the flap actuators of the flight
controls, in accordance with Dornier 328
Service Bulletin SB–328–27–293, dated
November 10, 1999. After accomplishing the
modification, operators may remove the AFM
revisions required by paragraphs (f) and (g)
of this AD from the AFM.
Note 1: The Dornier service bulletin
references Liebherr Aerospace Service
Bulletin 1048A–27–02, dated November 9,
1999, as an additional source of service
information for accomplishing the
modification of the flap actuators of the flight
controls.
VerDate Aug<31>2005
DEPARTMENT OF TRANSPORTATION
November 1, 2003 deadline. Thus, the
FAA bases its estimated average costs
on the vendors’ reported costs.’’
Correction
In the proposed rule FR Doc. 05–
18806 published on September 21,
2005, (70 FR 55492) make the following
correction:
1. On page 55495 for the proposed
rule, in the second column, fourth
paragraph, replace the contents of the
paragraph with the following:
‘‘Certificate holders that choose to
install a video camera system to comply
with this rule, would incur the
following costs. Some turbojets would
need a two- or three-camera system
while regional jets, including turbojets
and turboprops, would need a onecamera system. AirWorks, AEI/AD
Aerospace, Bournemouth Aviation Ltd.,
Goodrich, and Hollingsead International
are the only vendors currently
supplying these systems for airplanes.
Many of their systems have
Supplemental Type Certificates (STCs)
issued by the FAA. These vendors are
selling their systems to several
European and Asian airlines as a result
of United Kingdom (UK) Department for
Transport Directive 21(a), issued on
January 27, 2003, which strictly follows
the ICAO requirements including the
PO 00000
Frm 00003
Fmt 4702
Sfmt 4702
18 CFR Parts 41, 158, 286 and 349
[Docket No. RM06–2–000]
Procedures for Disposition of
Contested Audit Matters
October 20, 2005.
Federal Energy Regulatory
Commission.
ACTION: Notice of Proposed Rulemaking.
AGENCY:
SUMMARY: Pursuant to section 309 of the
Federal Power Act, 16 U.S.C. 825h
(2000); section 16 of the Natural Gas
Act, 15 U.S.C. 717o (2000); sections 20
and 204(a)(6) of the Interstate Commerce
Act, 49 App. U.S.C. 20 and
204(a)(6)(2000); and section 501 of the
Natural Gas Policy Act of 1978, 15
U.S.C. 3411 (2000), the Federal Energy
Regulatory Commission proposes to
issue Rules permitting audited persons
to challenge audit findings before the
issuance of a Commission order on the
merits of those findings. The
Commission seeks public comment on
the Rules proposed herein.
DATES: Comments are due November 22,
2005. Reply comments are due
November 29, 2005.
ADDRESSES: Comments may be filed
electronically via the eFiling link on the
Commission’s Web site at https://
www.ferc.gov. Commenters unable to
file comments electronically must send
an original and 14 copies of their
comments to: Federal Energy Regulatory
Commission, Office of the Secretary,
888 First Street NE., Washington, DC
20426. Refer to the Comment
Procedures section of the preamble for
additional information on how to file
comments.
John
R. Kroeger, Office of Market Oversight
and Investigations, Federal Energy
Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.
(202) 502–8177.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
E:\FR\FM\01NOP1.SGM
01NOP1
Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Proposed Rules
I. Summary
1. In this Notice of Proposed
Rulemaking (NOPR), the Federal Energy
Regulatory Commission (Commission)
proposes to amend parts 41 and 158,
add new language to part 286 and to add
a new part 349 to its regulations.1 The
main purpose of the proposed rule is to
apply existing procedures for
challenging the Commission staff’s
financial audit findings and proposed
remedies to the Commission staff’s
operational audit findings and proposed
remedies as well.
2. The Commission is proposing to
amend its regulations to permit any
audited person 2 to challenge staff audit
findings and proposed remedies
(collectively, audit matters) before the
issuance of a Commission order on the
merits of those audit matters. Under the
proposed rule, the Commission would
issue an order on the merits with
respect to non-disputed audit matters
contained in a notice of deficiency,
audit report or similar document and
would notice, without making any
findings on the merits, any disputed
audit matters. The Commission would
provide the audited person an
opportunity to challenge any such
disputed audit matters. The audited
person could then elect a shortened
procedure 3 or a trial-type hearing to
challenge the disputed audit matters.
The Commission would honor this
election unless in the Commission’s
judgment there were no material facts in
dispute which require crossexamination.
II. Background
3. Relevant portions of the existing
language of parts 41 and 158 that relate
to procedures for challenging audit
matters date at least to 1937.4 At that
1 18 CFR parts 41, 158 and 286 (2005). Part 41
applies to public utilities and licensees under the
Federal Power Act (FPA), part 158 applies to
natural gas companies under the Natural Gas Act
(NGA), part 286 applies to entities subject to the
Commission’s jurisdiction under the Natural Gas
Policy Act of 1978 (NGPA) and the new part 349
would apply to common carries subject to the
Commission’s jurisdiction under the Interstate
Commerce Act (ICA).
2 The term ‘‘person’’ as used in this notice and the
accompanying regulatory text is the same as the
definition of person found in parts 101 (Definition
24) and 201 (Definition 27) of the Commission’s
regulations, which reads as follows: ‘‘An
individual, a corporation, a partnership, an
association, a joint stock company, a business trust,
or any other organized group of persons, whether
incorporated or not, or any receiver or trust.’’
3 The term ‘‘shortened procedure’’ as used in this
notice and the accompanying regulatory text refers
to a ‘‘paper hearing,’’ or briefing of matters only, not
including a trial-type proceeding, in a contested
proceeding before the Commission.
4 See Federal Power Commission, Rules of
Practice and Regulations § 301(a) (Revised January
1, 1937).
VerDate Aug<31>2005
15:15 Oct 31, 2005
Jkt 208001
time and for many years afterward,
Commission staff audited primarily the
financial accounts and records of
jurisdictional persons and the language
of these sections was adequate.
Financial audits have been conducted
mainly to determine compliance with
parts 101 (Uniform System of Accounts
Prescribed for Public Utilities and
Licensees), 201 (Uniform System of
Accounts Prescribed for Natural Gas
Companies) and 352 (Uniform Systems
of Accounts Prescribed for Oil Pipeline
Companies). However, in more recent
years the Commission staff has
conducted operational audits.
Operational audits have been conducted
to determine compliance with the
Commission’s Standards of Conduct,5
Behavior Rules,6 Codes of Conduct,
tariff matters and other Commission
requirements. Thus, operational audits
address matters that are not explicitly
covered by the existing provisions of
parts 41 and 158. Accordingly, the
proposed rule is needed to provide the
audited persons who are subject to
operational audits, and indeed, to all
audits the Commission staff conducts,
the same procedural benefits provided
to audited persons who are subject to
financial audits. The proposed rule
would advance the due process rights of
all audited persons by providing an
effective procedure for them to
challenge staff audit findings.
4. The Commission’s regulations do
not now contain procedures for
challenging audit findings and proposed
remedies of audits conducted under the
NGPA and the ICA. The proposed rule
includes audits under these statutes for
the sake of completeness. While the
Commission’s staff conducts audits
under the authority of these statutes less
frequently than it does under the NGA
and FPA, the proposed rule would
permit persons audited under the NGPA
and the ICA to challenge audit matters
in the same way that persons audited
under the NGA or FPA could challenge
audit matters.
III. Discussion
5. The Commission staff conducts
audits of persons subject to the
Commission’s jurisdiction to determine
compliance with the Uniform Systems
of Accounts and other requirements of
the Commission. The Commission’s
audit staff conducts audits that pertain
to orders, rules and regulations
covering, among other things, financial
5 See
18 CFR part 358 (2005).
Authorization of Terms and Conditions of
Public Utility Market-Based Rate Authorizations,
105 FERC ¶ 61,218 (2003); Amendments to Blanket
Sales Certificates, III FERC Statutes & Regulations,
Regulations Preambles ¶ 31,153 (2003).
6 See
PO 00000
Frm 00004
Fmt 4702
Sfmt 4702
65867
accounting and reporting, annual
charges, Standards of Conduct and
Codes of Conduct, interlocking
directorates, and other requirements
affecting persons under the
Commission’s jurisdiction.
6. The Commission’s rules now
permit persons subject to financial
audits to challenge staff audit findings
before the issuance of a Commission
order on the merits of those findings.
Parts 41 and 158, at sections 41.1
through 41.7 and at sections 158.1
through 158.7, respectively, currently
provide for Commission or Commission
staff to inform a person subject to the
Commission’s FPA jurisdiction (in the
case of part 41) or the Commission’s
NGA jurisdiction (in the case of part
158) of a deficiency with respect to the
following limited classification of items:
(1) The maintenance of accounts, or any
books and records pertaining to or in
support of those accounts; or (2) any
statement or report submitted by such
person. In the event of a disagreement
between such person and the
Commission or its staff with respect to
any finding, parts 41 and 158 permit
such person to challenge one or more
findings of audit staff before issuance of
an order by the Commission on the
merits of the audit findings. An audited
person can challenge the findings by
either choosing a paper hearing, referred
to as a ‘‘shortened procedure’’ in parts
41 and 158, or a trial type-hearing under
subpart E of part 385 of the
Commission’s regulations.7 The
shortened procedure consists of an
opportunity to submit briefs to the
Commission with respect to the
disagreement. If the audited person does
not choose the shortened procedure, the
Commission will assign the proceeding
for a trial-type hearing except when
there are no material facts in dispute
requiring cross-examination.
7. The proposed rule would expand
the existing procedural rights of persons
subject to audits conducted by the
Commission staff. Accordingly, under
the proposed rule, the Commission
would not limit the ability to challenge
staff audit findings before the issuance
of a Commission order on the merits of
those findings to persons subject to
financial audits only, i.e., audits of
accounts or books and records in
support of those accounts, or audits of
statements or reports submitted to the
Commission. Instead, the Commission
would amend its regulations to permit
all audited persons who disagree with
staff audit findings to so challenge them.
8. The Commission’s audit staff
communicates its audit findings and
7 See
E:\FR\FM\01NOP1.SGM
18 CFR 41.1 and 158.1 (2005).
01NOP1
65868
Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Proposed Rules
proposed remedies with the audited
person. The audited person has an
opportunity to provide written
comments signifying agreement or
disagreement with the audit findings
and proposed remedial measures. Under
the proposed rule, in cases where the
audited person communicated its
disagreement with any finding or
proposed remedy, the Commission
would notice any such disputed
findings and proposed remedies,
without ruling on the merits with
respect to them, in any initial order
regarding the notice of deficiency, audit
report or similar document. For all
audits, the Commission would provide
the audited person the opportunity to
timely challenge the noticed finding or
findings and proposed remedial
measures through the shortened
procedure or a trial-type hearing. The
Commission would honor the audited
person’s election unless in the
Commission’s judgment there were no
material facts in dispute which require
cross-examination. By opting for the
shortened procedure, the person has
waived any right to subsequently
request a hearing before an
administrative law judge under section
41.7 or 158.7.8
9. The Commission is also proposing
to permit persons audited under the
NGPA or the ICA the same opportunity
to challenge staff audit findings before
the Commission issues an order on the
merits of those findings.9 The
Commission’s regulations applicable to
these statutes do not contain provisions
analogous to the procedures in parts 41
and 158. Accordingly, the proposed rule
would add sections 286.103 through
286.109 to part 286 to provide the
indicated provisions for persons audited
under authority of the NGPA. The
proposed rule would further add a new
part 349 to provide the indicated
provisions for persons audited under
authority of the ICA.
10. The Commission has legal
authority to make the proposed changes
under the FPA, NGA, ICA and NGPA.10
In this respect, the FPA and NGA
8 See sections 41.3 and 158.3 of the Commission’s
regulations; 18 CFR 41.3 and 158.7 (2005).
9 The Commission staff may conduct an audit
pursuant to its enforcement authority found in
section 501(a) of the NGPA, 15 U.S.C. 3411(a)
(2000). Such audits are infrequent and the
Commission suggests no change in the frequency of
such audits by the promulgation of this proposed
rule. The Commission staff may conduct an audit
to assure compliance with the Uniform Systems of
Accounts Prescribed for Oil Pipeline Companies, 18
CFR part 352 (2005).
10 See section 309 of the FPA, 16 U.S.C. 825h
(2000); section 16 of the NGA, 15 U.S.C. 717o
(2000); sections 20 and 204(a)(6) of the ICA; 49
App. U.S.C. 20 and 204(a)(6) (2000); and section
501 of the NGPA, 15 U.S.C. 3411 (2000).
VerDate Aug<31>2005
15:15 Oct 31, 2005
Jkt 208001
empower the Commission, with respect
to public utilities and interstate natural
gas pipeline companies to ‘‘perform any
and all acts, and to prescribe, issue,
make, amend, and rescind such orders,
rules and regulations as it may find
necessary or appropriate to carry out the
provisions of [the] Act.’’11
11. The Commission invites public
comments on whether the Commission
should also provide informal
procedures before proceeding with the
formal procedures contained in the
proposed rule. Commenters should
address the relative merits of such
processes and how they could function
in concert with the proposed rule.
IV. Information Collection Statement
12. This proposed rule clarifies and
amends the existing requirements to
apply to all audits and does not include
new information collections under the
provisions of the Paperwork Reduction
Act of 1995.12
V. Environmental Analysis
13. 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. The Commission has
categorically excluded certain actions
from this requirement as not have a
significant effect on the human
environment. Included in the exclusions
are rules that are clarifying, corrective,
or procedural or that do not
substantively change the effect of the
regulations being amended. This
proposed rule, if finalized, is procedural
in natural and therefore falls under this
exception; consequently, no
environmental consideration would be
necessary.
VI. Regulatory Flexibility Act Statement
14. The Regulatory Flexibility Act of
1980 (RFA) 13 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
required to make such analyses if a rule
would not have such an effect. The
Commission concludes that this rule
would not have such an impact on small
entities. Most filing companies
regulated by the Commission do not fall
within the Commission’s definition of a
small entity. The proposed rule would
not impose new filing requirements.
11 Section 309 of the FPA, 16 U.S.C. 825h (2000);
and section 16 of the NGA, 15 U.S.C. 717o (2000).
12 44 U.S.C. 3501 et seq. (2000).
13 5 U.S.C. 601–612.
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
VII. Comment Procedures
15. The Commission invites interested
persons to submit written comments on
the matters and issues proposed in this
notice to be adopted, including any
related matters or alternative proposals
that commenters may wish to discuss.
Comments are due 21 days from
publication in the Federal Register.
Comments must refer to Docket No.
RM06–2–000, and may be filed either in
electronic or paper format. Those filing
electronically do not need to make a
paper filing.
16. Documents filed electronically via
the Internet can be prepared in a variety
of formats, including WordPerfect, MS
Word, Portable Document Format, Real
Text Format, or ASCII format, as listed
on the Commission’s Web site at https://
ferc.gov under the e-Filing link. The eFiling link provides instructions for
how to Login and complete an
electronic filing. First time users will
have to establish a user name and
password. The Commission will send an
automatic acknowledgment to the
sender’s e-mail address upon receipt of
comments. User assistance for electronic
filing is available at 202–208–0258 or by
e-mail to efiling@ferc.gov. Comments
should not be submitted to the e-mail
address.
17. For paper filings, the original and
14 copies of such comments should be
submitted to the Office of the Secretary,
Federal Energy Regulatory Commission,
888 First Street, NE., Washington, DC
20426.
18. All comments will be placed in
the Commission’s public files and will
be available for inspection in the
Commission’s Public Reference Room at
888 First Street, NE., Washington, DC
20426, during regular business hours.
Additionally, all comments may be
viewed, printed, or downloaded
remotely via the Internet through
FERC’s home page.
VIII. Document Availability
19. 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 and in FERC’s Public
Reference Room during normal business
hours.
20. From FERC’s home page on the
Internet, this information is available in
e-library. The full text of this document
is available in e-library in PDF and MS
Word format for viewing, printing or
downloading. To access this document
in e-library, type the docket number
excluding the last three digits of this
document in the docket number field.
E:\FR\FM\01NOP1.SGM
01NOP1
Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Proposed Rules
21. User assistance is available for elibrary and the FERC’s Web site during
normal business hours from our Help
line at (202) 208–2222 or the Public
Reference Room at (202) 208–1371. Email the Public Reference Room at
public.reference@ferc.gov.
List of Subjects
18 CFR Part 41
Electric power, accounts, records,
memoranda, conduct, shortened
procedure.
18 CFR Part 158
Natural gas, accounts, records,
memoranda, conduct, shortened
procedure.
18 CFR Part 286
Natural gas, accounts, records,
memoranda, conduct, shortened
procedure.
18 CFR Part 349.
Oil pipelines, accounts, records,
memoranda, conduct, shortened
procedure.
By direction of the Commission.
Magalie R. Salas,
Secretary.
In consideration of the foregoing, the
Commission proposes to amend Chapter
1, Title 18, of the Code of Federal
Regulations, as follows:
PART 41—ACCOUNTS, RECORDS,
MEMORANDA AND DISPOSITION OF
CONTESTED AUDIT FINDINGS AND
PROPOSED REMEDIES
1. The authority citation for part 41
continues to read as follows:
Authority: 16 U.S.C. 791a–825r.
2. The heading of part 41 is revised
to read as set forth above.
3. Sections 41.1, 41.2 and 41.3, and
the undesignated center heading
preceding them, are revised to read as
follows:
Disposition of Contested Audit Findings
and Proposed Remedies
§ 41.1
Notice to audited person.
An audit conducted by the
Commission’s staff under authority of
the Federal Power Act may result in a
notice of deficiency or audit report or
similar document containing a finding
or findings that the audited person has
not complied with a requirement of the
Commission with respect to, but not
limited to, the following: A filed tariff
or tariffs, contracts, data, records,
accounts, books, communications or
papers relevant to the audit of the
audited person; matters under the
Standards of Conduct or the Code of
VerDate Aug<31>2005
15:15 Oct 31, 2005
Jkt 208001
Conduct; and the activities or operations
of the audited person. The notice of
deficiency, audit report or similar
document may also contain one or more
proposed remedies that address findings
of noncompliance. Where such findings,
with or without proposed remedies,
appear in a notice of deficiency, audit
report or similar document, such
document shall be provided to the
audited person, and the finding or
findings, and any proposed remedies,
shall be noted and explained. The
audited person shall timely indicate in
a written response any and all findings,
including any and all proposed
remedies, with which the audited
person disagrees. Any initial order that
the Commission subsequently may issue
with respect to the notice of deficiency,
audit report or similar document shall
note, but not address on the merits, the
finding or findings and any proposed
remedies with which the audited person
disagreed. The Commission shall
provide the audited person a specified
number of days to respond with respect
to the finding or findings and any
proposed remedies with which it
disagreed.
§ 41.2
Response to notification.
Upon issuance of a Commission order
that notes a finding or findings, with or
without proposed remedies, with which
the audited person has disagreed, the
audited person may: Acquiesce in the
findings and proposed remedies by not
timely responding to the Commission
order, in which case the Commission
may issue an order approving them or
taking other action; or challenge the
finding or findings, and any proposed
remedies, with which it disagreed by
timely notifying the Commission in
writing that it requests Commission
review by means of a shortened
procedure or, if there are material facts
in dispute which require crossexamination, a trial-type hearing.
§ 41.3
Shortened procedure.
If the audited person subject to a
Commission order described in § 41.1
notifies the Commission that it seeks to
challenge one or more audit findings,
with or without proposed remedies, by
the shortened procedure, the
Commission shall thereupon issue a
notice setting a schedule for the filing of
memoranda. The person electing the use
of the shortened procedure, and any
other interested entities, including the
Commission staff, shall file, by the date
specified by the Commission in the
notice, an initial memorandum that
addresses the relevant facts and
applicable law that support the position
or positions taken regarding the matters
PO 00000
Frm 00006
Fmt 4702
Sfmt 4702
65869
at issue. In the notice, the Commission
shall also set a date for the filing of
reply memoranda, which may be filed
only by participants that filed initial
memoranda. Subpart T of part 385 of the
Commission’s regulations shall apply to
all filings. A person that consents to the
matter being handled pursuant to the
shortened procedure has waived any
right to subsequently request a hearing
pursuant to § 41.7 and may not later
request such a hearing.
*
*
*
*
*
PART 158—ACCOUNTS, RECORDS
MEMORANDA AND DISPOSITION OF
CONTESTED AUDIT FINDINGS AND
PROPOSED REMEDIES
4. The authority citation for part 158
continues to read as follows:
Authority: 15 U.S.C. 717–717w.
5. The heading of part 158 is revised
to read as set forth above.
6. Sections 158.1, 158.2 and 158.3,
and the undesignated center heading
preceding them, are revised to read as
follows:
Disposition of Contested Audit Findings
and Proposed Remedies
§ 158.1
Notice to audited person.
An audit conducted by the
Commission or its staff under authority
of the Natural Gas Act may result in a
notice of deficiency or audit report or
similar document containing a finding
or findings that the audited person has
not complied with a requirement of the
Commission with respect to, but not
limited to, the following: A filed tariff
or tariffs, contracts, data, records,
accounts, books, communications or
papers relevant to the audit of the
audited person; matters under the
Standards of Conduct or the Code of
Conduct; and the activities or operations
of the audited person. The notice of
deficiency, audit report or similar
document may also contain one or more
proposed remedies that address findings
of noncompliance. Where such findings,
with or without proposed remedies,
appear in a notice of deficiency, audit
report or similar document, such
document shall be provided to the
audited person, and the finding or
findings, and any proposed remedies,
shall be noted and explained. The
audited person shall timely indicate in
a written response any and all findings,
including any and all proposed
remedies, with which the audited
person disagrees. Any initial order that
the Commission subsequently may issue
with respect to the notice of deficiency,
audit report or similar document shall
note, but not address on the merits, the
E:\FR\FM\01NOP1.SGM
01NOP1
65870
Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Proposed Rules
finding or findings and any proposed
remedies with which the audited person
disagreed. The Commission shall
provide the audited person a specified
number of days to respond with respect
to the finding or findings and any
proposed remedies with which it
disagreed.
§ 158.2
Response to notification.
Upon issuance of a Commission order
that notes a finding or findings, with or
without proposed remedies, with which
the audited person has disagreed, the
audited person may: Acquiesce in the
findings and proposed remedies by not
timely responding to the Commission
order, in which case the Commission
may issue an order approving them or
taking other action; or challenge the
finding or findings and any proposed
remedies with which it disagreed by
timely notifying the Commission in
writing that it requests Commission
review by means of a shortened
procedure, or, if there are material facts
in dispute which require crossexamination, a trial-type hearing.
§ 158.3
Shortened procedure.
If the audited person subject to a
Commission order described in § 158.1
notifies the Commission that it seeks to
challenge one or more audit findings,
with or without proposed remedies, by
the shortened procedure, the
Commission shall thereupon issue a
notice setting a schedule for the filing of
memoranda. The person electing the use
of the shortened procedure, and any
other interested entities, including the
Commission staff, shall file, by the date
specified by the Commission in the
notice, an initial memorandum that
addresses the relevant facts and
applicable law that support the position
or positions taken regarding the matters
at issue. In the notice, the Commission
shall also set a date for the filing of
reply memoranda, which may be filed
only by participants that filed initial
memoranda. Subpart T of part 385 of the
Commission’s regulations shall apply to
all filings. A person that consents to the
matter being handled pursuant to the
shortened procedure has waived any
right to subsequently request a hearing
pursuant to § 158.7 and may not later
request such a hearing.
*
*
*
*
*
PART 286—ADMINISTRATIVE
PROCEDURES AND DISPOSITION OF
CONTESTED AUDIT FINDINGS AND
PROPOSED REMEDIES
7. The authority citation for part 286
continues to read as follows:
VerDate Aug<31>2005
15:15 Oct 31, 2005
Jkt 208001
Authority: Administrative Procedure Act, 5
U.S.C. 551 et seq., Natural Gas Policy Act of
1978, Pub. L. 95–621, 92 Stat. 3350,
Department of Energy Organization Act, Pub.
L. 95–91, E.O. 12009, 42 FR 46267.
8. The heading of part 286 is revised
to read as set forth above.
9. Sections 286.103 through 286.109
and a new undesignated center heading
preceding them are added as follows:
Disposition of Contested Audit Findings
and Proposed Remedies
§ 286.103
Notice to audited person.
An audit conducted by the
Commission or its staff under authority
of the Natural Gas Policy Act may result
in a notice of deficiency or audit report
or similar document containing a
finding or findings that the audited
person has not complied with a
requirement of the Commission with
respect to, but not limited to, the
following: A filed tariff or tariffs,
contracts, data, records, accounts,
books, communications or papers
relevant to the audit of the audited
person; matters under the Standards of
Conduct or the Code of Conduct; and
the activities or operations of the
audited person. The notice of
deficiency, audit report or similar
document may also contain one or more
proposed remedies that address findings
of noncompliance. Where such findings,
with or without proposed remedies,
appear in a notice of deficiency, audit
report or similar document, such
document shall be provided to the
audited person, and the finding or
findings, and any proposed remedies,
shall be noted and explained. The
audited person shall timely indicate in
a written response any and all findings,
including any and all proposed
remedies, with which the audited
person disagrees. Any initial order that
the Commission subsequently may issue
with respect to the notice of deficiency,
audit report or similar document shall
note, but not address on the merits, the
finding or findings and any proposed
remedies with which the audited person
disagreed. The Commission shall
provide the audited person a specified
number of days to respond with respect
to the finding or findings and any
proposed remedies with which it
disagreed.
§ 286.104
Response to notification.
Upon issuance of a Commission order
that notes a finding or findings, with or
without proposed remedies, with which
the audited person has disagreed, the
audited person may: Acquiesce in the
findings and proposed remedies by not
timely responding to the Commission
order, in which case the Commission
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
may issue an order approving them or
taking other action; or challenge the
finding or findings and any proposed
remedies with which it disagreed by
timely notifying the Commission in
writing that it requests Commission
review by means of a shortened
procedure, or, if there are material facts
in dispute which require crossexamination, a trial-type hearing.
§ 286.105
Shortened procedure.
If the audited person subject to a
Commission order described in
§ 286.103 notifies the Commission that
it seeks to challenge one or more audit
findings, with or without proposed
remedies, by the shortened procedure,
the Commission shall thereupon issue a
notice setting a schedule for the filing of
memoranda. The person electing the use
of the shortened procedure, and any
other interested entities, including the
Commission staff, shall file, by the date
specified by the Commission in the
notice, an initial memorandum that
addresses the relevant facts and
applicable law that support the position
or positions taken regarding the matters
at issue. In the notice, the Commission
shall also set a date for the filing of
reply memoranda, which may be filed
only by participants that filed initial
memoranda. Subpart T of part 385 of the
Commission’s regulations shall apply to
all filings. A person that consents to the
matter being handled pursuant to the
shortened procedure has waived any
right to subsequently request a hearing
pursuant to § 286.109 and may not later
request such a hearing.
§ 286.106
Form and style.
Each copy of such memorandum must
be complete in itself. All pertinent data
should be set forth fully, and each
memorandum should set out the facts
and argument as prescribed for briefs in
§ 385.706 of this chapter.
§ 286.107
Verification.
The facts stated in the memorandum
must be sworn to by persons having
knowledge thereof, which latter fact
must affirmatively appear in the
affidavit. Except under unusual
circumstances, such persons should be
those who would appear as witnesses if
hearing were had to testify as to the
facts stated in the memorandum.
§ 286.108
Determination.
If no formal hearing is had the matter
in issue will be determined by the
Commission on the basis of the facts
and arguments submitted.
§ 286.109
Assignment for oral hearing.
Except when there are no material
facts in dispute, when a person does not
E:\FR\FM\01NOP1.SGM
01NOP1
Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Proposed Rules
consent to the shortened procedure, the
Commission will assign the proceeding
for hearing as provided by subpart E of
part 385 of this chapter.
Notwithstanding a person’s not giving
consent to the shortened procedure, and
instead seeking assignment for hearing
as provided for by subpart E of part 385
of this chapter, the Commission will not
assign the proceeding for a hearing
when no material facts are in dispute.
The Commission may also, in its
discretion, at any stage in the
proceeding, set the proceeding for
hearing.
10. Part 349 is added to Subchapter P
to read as follows:
PART 349—DISPOSITION OF
CONTESTED AUDIT FINDINGS AND
PROPOSED REMEDIES
Sec.
349.1
349.2
349.3
349.4
349.5
349.6
349.7
Notice to audited person.
Response to notification.
Shortened procedure.
Form and style.
Verification.
Determination.
Assignment for oral hearing.
Authority: 42 U.S.C. 7101–7352; 49 U.S.C.
60502; 49 App. U.S.C. 1–85.
§ 349.1
Notice to audited person.
An audit conducted by the
Commission or its staff under authority
of the Interstate Commerce Act may
result in a notice of deficiency or audit
report or similar document containing a
finding or findings that the audited
person has not complied with a
requirement of the Commission with
respect to, but not limited to, the
following: A filed tariff or tariffs,
contracts, data, records, accounts,
books, communications or papers
relevant to the audit of the audited
person; matters under the Standards of
Conduct or the Code of Conduct; and
the activities or operations of the
audited person. The notice of
deficiency, audit report or similar
document may also contain one or more
proposed remedies that address findings
of noncompliance. Where such findings,
with or without proposed remedies,
appear in a notice of deficiency, audit
report or similar document, such
document shall be provided to the
audited person, and the finding or
findings, and any proposed remedies,
shall be noted and explained. The
audited person shall timely indicate in
a written response any and all findings,
including any and all proposed
remedies, with which the audited
person disagrees. Any initial order that
the Commission subsequently may issue
with respect to the notice of deficiency,
audit report or similar document shall
VerDate Aug<31>2005
15:15 Oct 31, 2005
Jkt 208001
note, but not address on the merits, the
finding or findings and any proposed
remedies with which the audited person
disagreed. The Commission shall
provide the audited person a specified
number of days to respond with respect
to the finding or findings and any
proposed remedies with which it
disagreed.
§ 349.2
Response to notification.
Upon issuance of a Commission order
that notes a finding or findings, with or
without proposed remedies, with which
the audited person has disagreed, the
audited person may: Acquiesce in the
findings and proposed remedies by not
timely responding to the Commission
order, in which case the Commission
may issue an order approving them or
taking other action; or challenge the
finding or findings and any proposed
remedies with which it disagreed by
timely notifying the Commission in
writing that it requests Commission
review by means of a shortened
procedure, or, if there are material facts
in dispute which require crossexamination, a trial-type hearing.
§ 349.3
Shortened procedure.
If the audited person subject to a
Commission order described in § 349.1
above notifies the Commission that it
seeks to challenge one or more audit
findings, with or without proposed
remedies, by the shortened procedure,
the Commission shall thereupon issue a
notice setting a schedule for the filing of
memoranda. The person electing the use
of the shortened procedure, and any
other interested entities, including the
Commission staff, shall file, by the date
specified by the Commission in the
notice, an initial memorandum that
addresses the relevant facts and
applicable law that support the position
or positions taken regarding the matters
at issue. In the notice, the Commission
shall also set a date for the filing of
reply memoranda, which may be filed
only by participants that filed initial
memoranda. Subpart T of Part 385 of the
Commission’s regulations shall apply to
all filings. A person that consents to the
matter being handled pursuant to the
shortened procedure has waived any
right to subsequently request a hearing
pursuant to § 349.7 and may not later
request such a hearing.
§ 349.4
Form and style.
Each copy of such memorandum must
be complete in itself. All pertinent data
should be set forth fully, and each
memorandum should set out the facts
and argument as prescribed for briefs in
§ 385.706 of this chapter.
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
§ 349.5
65871
Verification.
The facts stated in the memorandum
must be sworn to by persons having
knowledge thereof, which latter fact
must affirmatively appear in the
affidavit. Except under unusual
circumstances, such persons should be
those who would appear as witnesses if
hearing were had to testify as to the
facts stated in the memorandum.
§ 349.6
Determination.
If no formal hearing is had the matter
in issue will be determined by the
Commission on the basis of the facts
and arguments submitted.
§ 349.7
Assignment for oral hearing.
Except when there are no material
facts in dispute, when a person does not
consent to the shortened procedure, the
Commission will assign the proceeding
for hearing as provided by subpart E of
part 385 of this chapter.
Notwithstanding a person’s not giving
consent to the shortened procedure, and
instead seeking assignment for hearing
as provided for by subpart E of part 385
of this chapter, the Commission will not
assign the proceeding for a hearing
when no material facts are in dispute.
The Commission may also, in its
discretion, at any stage in the
proceeding, set the proceeding for
hearing.
[FR Doc. 05–21422 Filed 10–31–05; 8:45 am]
BILLING CODE 6717–01–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 411
Additional Town Hall Meetings on the
Notice of Proposed Rulemaking for the
Ticket to Work and Self-Sufficiency
Program
AGENCY:
Social Security Administration
(SSA).
Notice of public town hall
meetings.
ACTION:
SUMMARY: We will be holding a series of
town hall meetings to maximize the
opportunities for individuals and
organizations to give us input on our
Notice of Proposed Rulemaking (NPRM)
to amend our regulations for the Ticket
to Work and Self-Sufficiency Program
(Ticket to Work program). We invite the
public, including beneficiaries and
other individuals with disabilities, their
advocates, service providers, employers
and other interested parties to attend
these public meetings and to give us
input on our proposed changes to the
rules for the Ticket to Work program.
E:\FR\FM\01NOP1.SGM
01NOP1
]]>Agencies
[Federal Register Volume 70, Number 210 (Tuesday, November 1, 2005)]
[Proposed Rules]
[Pages 65866-65871]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-21422]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 41, 158, 286 and 349
[Docket No. RM06-2-000]
Procedures for Disposition of Contested Audit Matters
October 20, 2005.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: Pursuant to section 309 of the Federal Power Act, 16 U.S.C.
825h (2000); section 16 of the Natural Gas Act, 15 U.S.C. 717o (2000);
sections 20 and 204(a)(6) of the Interstate Commerce Act, 49 App.
U.S.C. 20 and 204(a)(6)(2000); and section 501 of the Natural Gas
Policy Act of 1978, 15 U.S.C. 3411 (2000), the Federal Energy
Regulatory Commission proposes to issue Rules permitting audited
persons to challenge audit findings before the issuance of a Commission
order on the merits of those findings. The Commission seeks public
comment on the Rules proposed herein.
DATES: Comments are due November 22, 2005. Reply comments are due
November 29, 2005.
ADDRESSES: Comments may be filed electronically via the eFiling link on
the Commission's Web site at https://www.ferc.gov. Commenters unable to
file comments electronically must send an original and 14 copies of
their comments to: Federal Energy Regulatory Commission, Office of the
Secretary, 888 First Street NE., Washington, DC 20426. Refer to the
Comment Procedures section of the preamble for additional information
on how to file comments.
FOR FURTHER INFORMATION CONTACT: John R. Kroeger, Office of Market
Oversight and Investigations, Federal Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426. (202) 502-8177.
SUPPLEMENTARY INFORMATION:
[[Page 65867]]
I. Summary
1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy
Regulatory Commission (Commission) proposes to amend parts 41 and 158,
add new language to part 286 and to add a new part 349 to its
regulations.\1\ The main purpose of the proposed rule is to apply
existing procedures for challenging the Commission staff's financial
audit findings and proposed remedies to the Commission staff's
operational audit findings and proposed remedies as well.
---------------------------------------------------------------------------
\1\ 18 CFR parts 41, 158 and 286 (2005). Part 41 applies to
public utilities and licensees under the Federal Power Act (FPA),
part 158 applies to natural gas companies under the Natural Gas Act
(NGA), part 286 applies to entities subject to the Commission's
jurisdiction under the Natural Gas Policy Act of 1978 (NGPA) and the
new part 349 would apply to common carries subject to the
Commission's jurisdiction under the Interstate Commerce Act (ICA).
---------------------------------------------------------------------------
2. The Commission is proposing to amend its regulations to permit
any audited person \2\ to challenge staff audit findings and proposed
remedies (collectively, audit matters) before the issuance of a
Commission order on the merits of those audit matters. Under the
proposed rule, the Commission would issue an order on the merits with
respect to non-disputed audit matters contained in a notice of
deficiency, audit report or similar document and would notice, without
making any findings on the merits, any disputed audit matters. The
Commission would provide the audited person an opportunity to challenge
any such disputed audit matters. The audited person could then elect a
shortened procedure \3\ or a trial-type hearing to challenge the
disputed audit matters. The Commission would honor this election unless
in the Commission's judgment there were no material facts in dispute
which require cross-examination.
---------------------------------------------------------------------------
\2\ The term ``person'' as used in this notice and the
accompanying regulatory text is the same as the definition of person
found in parts 101 (Definition 24) and 201 (Definition 27) of the
Commission's regulations, which reads as follows: ``An individual, a
corporation, a partnership, an association, a joint stock company, a
business trust, or any other organized group of persons, whether
incorporated or not, or any receiver or trust.''
\3\ The term ``shortened procedure'' as used in this notice and
the accompanying regulatory text refers to a ``paper hearing,'' or
briefing of matters only, not including a trial-type proceeding, in
a contested proceeding before the Commission.
---------------------------------------------------------------------------
II. Background
3. Relevant portions of the existing language of parts 41 and 158
that relate to procedures for challenging audit matters date at least
to 1937.\4\ At that time and for many years afterward, Commission staff
audited primarily the financial accounts and records of jurisdictional
persons and the language of these sections was adequate. Financial
audits have been conducted mainly to determine compliance with parts
101 (Uniform System of Accounts Prescribed for Public Utilities and
Licensees), 201 (Uniform System of Accounts Prescribed for Natural Gas
Companies) and 352 (Uniform Systems of Accounts Prescribed for Oil
Pipeline Companies). However, in more recent years the Commission staff
has conducted operational audits. Operational audits have been
conducted to determine compliance with the Commission's Standards of
Conduct,\5\ Behavior Rules,\6\ Codes of Conduct, tariff matters and
other Commission requirements. Thus, operational audits address matters
that are not explicitly covered by the existing provisions of parts 41
and 158. Accordingly, the proposed rule is needed to provide the
audited persons who are subject to operational audits, and indeed, to
all audits the Commission staff conducts, the same procedural benefits
provided to audited persons who are subject to financial audits. The
proposed rule would advance the due process rights of all audited
persons by providing an effective procedure for them to challenge staff
audit findings.
---------------------------------------------------------------------------
\4\ See Federal Power Commission, Rules of Practice and
Regulations Sec. 301(a) (Revised January 1, 1937).
\5\ See 18 CFR part 358 (2005).
\6\ See Authorization of Terms and Conditions of Public Utility
Market-Based Rate Authorizations, 105 FERC ] 61,218 (2003);
Amendments to Blanket Sales Certificates, III FERC Statutes &
Regulations, Regulations Preambles ] 31,153 (2003).
---------------------------------------------------------------------------
4. The Commission's regulations do not now contain procedures for
challenging audit findings and proposed remedies of audits conducted
under the NGPA and the ICA. The proposed rule includes audits under
these statutes for the sake of completeness. While the Commission's
staff conducts audits under the authority of these statutes less
frequently than it does under the NGA and FPA, the proposed rule would
permit persons audited under the NGPA and the ICA to challenge audit
matters in the same way that persons audited under the NGA or FPA could
challenge audit matters.
III. Discussion
5. The Commission staff conducts audits of persons subject to the
Commission's jurisdiction to determine compliance with the Uniform
Systems of Accounts and other requirements of the Commission. The
Commission's audit staff conducts audits that pertain to orders, rules
and regulations covering, among other things, financial accounting and
reporting, annual charges, Standards of Conduct and Codes of Conduct,
interlocking directorates, and other requirements affecting persons
under the Commission's jurisdiction.
6. The Commission's rules now permit persons subject to financial
audits to challenge staff audit findings before the issuance of a
Commission order on the merits of those findings. Parts 41 and 158, at
sections 41.1 through 41.7 and at sections 158.1 through 158.7,
respectively, currently provide for Commission or Commission staff to
inform a person subject to the Commission's FPA jurisdiction (in the
case of part 41) or the Commission's NGA jurisdiction (in the case of
part 158) of a deficiency with respect to the following limited
classification of items: (1) The maintenance of accounts, or any books
and records pertaining to or in support of those accounts; or (2) any
statement or report submitted by such person. In the event of a
disagreement between such person and the Commission or its staff with
respect to any finding, parts 41 and 158 permit such person to
challenge one or more findings of audit staff before issuance of an
order by the Commission on the merits of the audit findings. An audited
person can challenge the findings by either choosing a paper hearing,
referred to as a ``shortened procedure'' in parts 41 and 158, or a
trial type-hearing under subpart E of part 385 of the Commission's
regulations.\7\ The shortened procedure consists of an opportunity to
submit briefs to the Commission with respect to the disagreement. If
the audited person does not choose the shortened procedure, the
Commission will assign the proceeding for a trial-type hearing except
when there are no material facts in dispute requiring cross-
examination.
---------------------------------------------------------------------------
\7\ See 18 CFR 41.1 and 158.1 (2005).
---------------------------------------------------------------------------
7. The proposed rule would expand the existing procedural rights of
persons subject to audits conducted by the Commission staff.
Accordingly, under the proposed rule, the Commission would not limit
the ability to challenge staff audit findings before the issuance of a
Commission order on the merits of those findings to persons subject to
financial audits only, i.e., audits of accounts or books and records in
support of those accounts, or audits of statements or reports submitted
to the Commission. Instead, the Commission would amend its regulations
to permit all audited persons who disagree with staff audit findings to
so challenge them.
8. The Commission's audit staff communicates its audit findings and
[[Page 65868]]
proposed remedies with the audited person. The audited person has an
opportunity to provide written comments signifying agreement or
disagreement with the audit findings and proposed remedial measures.
Under the proposed rule, in cases where the audited person communicated
its disagreement with any finding or proposed remedy, the Commission
would notice any such disputed findings and proposed remedies, without
ruling on the merits with respect to them, in any initial order
regarding the notice of deficiency, audit report or similar document.
For all audits, the Commission would provide the audited person the
opportunity to timely challenge the noticed finding or findings and
proposed remedial measures through the shortened procedure or a trial-
type hearing. The Commission would honor the audited person's election
unless in the Commission's judgment there were no material facts in
dispute which require cross-examination. By opting for the shortened
procedure, the person has waived any right to subsequently request a
hearing before an administrative law judge under section 41.7 or
158.7.\8\
---------------------------------------------------------------------------
\8\ See sections 41.3 and 158.3 of the Commission's regulations;
18 CFR 41.3 and 158.7 (2005).
---------------------------------------------------------------------------
9. The Commission is also proposing to permit persons audited under
the NGPA or the ICA the same opportunity to challenge staff audit
findings before the Commission issues an order on the merits of those
findings.\9\ The Commission's regulations applicable to these statutes
do not contain provisions analogous to the procedures in parts 41 and
158. Accordingly, the proposed rule would add sections 286.103 through
286.109 to part 286 to provide the indicated provisions for persons
audited under authority of the NGPA. The proposed rule would further
add a new part 349 to provide the indicated provisions for persons
audited under authority of the ICA.
---------------------------------------------------------------------------
\9\ The Commission staff may conduct an audit pursuant to its
enforcement authority found in section 501(a) of the NGPA, 15 U.S.C.
3411(a) (2000). Such audits are infrequent and the Commission
suggests no change in the frequency of such audits by the
promulgation of this proposed rule. The Commission staff may conduct
an audit to assure compliance with the Uniform Systems of Accounts
Prescribed for Oil Pipeline Companies, 18 CFR part 352 (2005).
---------------------------------------------------------------------------
10. The Commission has legal authority to make the proposed changes
under the FPA, NGA, ICA and NGPA.\10\ In this respect, the FPA and NGA
empower the Commission, with respect to public utilities and interstate
natural gas pipeline companies to ``perform any and all acts, and to
prescribe, issue, make, amend, and rescind such orders, rules and
regulations as it may find necessary or appropriate to carry out the
provisions of [the] Act.''\11\
---------------------------------------------------------------------------
\10\ See section 309 of the FPA, 16 U.S.C. 825h (2000); section
16 of the NGA, 15 U.S.C. 717o (2000); sections 20 and 204(a)(6) of
the ICA; 49 App. U.S.C. 20 and 204(a)(6) (2000); and section 501 of
the NGPA, 15 U.S.C. 3411 (2000).
\11\ Section 309 of the FPA, 16 U.S.C. 825h (2000); and section
16 of the NGA, 15 U.S.C. 717o (2000).
---------------------------------------------------------------------------
11. The Commission invites public comments on whether the
Commission should also provide informal procedures before proceeding
with the formal procedures contained in the proposed rule. Commenters
should address the relative merits of such processes and how they could
function in concert with the proposed rule.
IV. Information Collection Statement
12. This proposed rule clarifies and amends the existing
requirements to apply to all audits and does not include new
information collections under the provisions of the Paperwork Reduction
Act of 1995.\12\
---------------------------------------------------------------------------
\12\ 44 U.S.C. 3501 et seq. (2000).
---------------------------------------------------------------------------
V. Environmental Analysis
13. 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. The
Commission has categorically excluded certain actions from this
requirement as not have a significant effect on the human environment.
Included in the exclusions are rules that are clarifying, corrective,
or procedural or that do not substantively change the effect of the
regulations being amended. This proposed rule, if finalized, is
procedural in natural and therefore falls under this exception;
consequently, no environmental consideration would be necessary.
VI. Regulatory Flexibility Act Statement
14. The Regulatory Flexibility Act of 1980 (RFA) \13\ 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 required to make such analyses if a rule would
not have such an effect. The Commission concludes that this rule would
not have such an impact on small entities. Most filing companies
regulated by the Commission do not fall within the Commission's
definition of a small entity. The proposed rule would not impose new
filing requirements.
---------------------------------------------------------------------------
\13\ 5 U.S.C. 601-612.
---------------------------------------------------------------------------
VII. Comment Procedures
15. The Commission invites interested persons to submit written
comments on the matters and issues proposed in this notice to be
adopted, including any related matters or alternative proposals that
commenters may wish to discuss. Comments are due 21 days from
publication in the Federal Register. Comments must refer to Docket No.
RM06-2-000, and may be filed either in electronic or paper format.
Those filing electronically do not need to make a paper filing.
16. Documents filed electronically via the Internet can be prepared
in a variety of formats, including WordPerfect, MS Word, Portable
Document Format, Real Text Format, or ASCII format, as listed on the
Commission's Web site at https://ferc.gov under the e-Filing link. The
e-Filing link provides instructions for how to Login and complete an
electronic filing. First time users will have to establish a user name
and password. The Commission will send an automatic acknowledgment to
the sender's e-mail address upon receipt of comments. User assistance
for electronic filing is available at 202-208-0258 or by e-mail to
efiling@ferc.gov. Comments should not be submitted to the e-mail
address.
17. For paper filings, the original and 14 copies of such comments
should be submitted to the Office of the Secretary, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426.
18. All comments will be placed in the Commission's public files
and will be available for inspection in the Commission's Public
Reference Room at 888 First Street, NE., Washington, DC 20426, during
regular business hours. Additionally, all comments may be viewed,
printed, or downloaded remotely via the Internet through FERC's home
page.
VIII. Document Availability
19. 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 and in FERC's Public Reference Room
during normal business hours.
20. From FERC's home page on the Internet, this information is
available in e-library. The full text of this document is available in
e-library in PDF and MS Word format for viewing, printing or
downloading. To access this document in e-library, type the docket
number excluding the last three digits of this document in the docket
number field.
[[Page 65869]]
21. User assistance is available for e-library and the FERC's Web
site during normal business hours from our Help line at (202) 208-2222
or the Public Reference Room at (202) 208-1371. E-mail the Public
Reference Room at public.reference@ferc.gov.
List of Subjects
18 CFR Part 41
Electric power, accounts, records, memoranda, conduct, shortened
procedure.
18 CFR Part 158
Natural gas, accounts, records, memoranda, conduct, shortened
procedure.
18 CFR Part 286
Natural gas, accounts, records, memoranda, conduct, shortened
procedure.
18 CFR Part 349.
Oil pipelines, accounts, records, memoranda, conduct, shortened
procedure.
By direction of the Commission.
Magalie R. Salas,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
Chapter 1, Title 18, of the Code of Federal Regulations, as follows:
PART 41--ACCOUNTS, RECORDS, MEMORANDA AND DISPOSITION OF CONTESTED
AUDIT FINDINGS AND PROPOSED REMEDIES
1. The authority citation for part 41 continues to read as follows:
Authority: 16 U.S.C. 791a-825r.
2. The heading of part 41 is revised to read as set forth above.
3. Sections 41.1, 41.2 and 41.3, and the undesignated center
heading preceding them, are revised to read as follows:
Disposition of Contested Audit Findings and Proposed Remedies
Sec. 41.1 Notice to audited person.
An audit conducted by the Commission's staff under authority of the
Federal Power Act may result in a notice of deficiency or audit report
or similar document containing a finding or findings that the audited
person has not complied with a requirement of the Commission with
respect to, but not limited to, the following: A filed tariff or
tariffs, contracts, data, records, accounts, books, communications or
papers relevant to the audit of the audited person; matters under the
Standards of Conduct or the Code of Conduct; and the activities or
operations of the audited person. The notice of deficiency, audit
report or similar document may also contain one or more proposed
remedies that address findings of noncompliance. Where such findings,
with or without proposed remedies, appear in a notice of deficiency,
audit report or similar document, such document shall be provided to
the audited person, and the finding or findings, and any proposed
remedies, shall be noted and explained. The audited person shall timely
indicate in a written response any and all findings, including any and
all proposed remedies, with which the audited person disagrees. Any
initial order that the Commission subsequently may issue with respect
to the notice of deficiency, audit report or similar document shall
note, but not address on the merits, the finding or findings and any
proposed remedies with which the audited person disagreed. The
Commission shall provide the audited person a specified number of days
to respond with respect to the finding or findings and any proposed
remedies with which it disagreed.
Sec. 41.2 Response to notification.
Upon issuance of a Commission order that notes a finding or
findings, with or without proposed remedies, with which the audited
person has disagreed, the audited person may: Acquiesce in the findings
and proposed remedies by not timely responding to the Commission order,
in which case the Commission may issue an order approving them or
taking other action; or challenge the finding or findings, and any
proposed remedies, with which it disagreed by timely notifying the
Commission in writing that it requests Commission review by means of a
shortened procedure or, if there are material facts in dispute which
require cross-examination, a trial-type hearing.
Sec. 41.3 Shortened procedure.
If the audited person subject to a Commission order described in
Sec. 41.1 notifies the Commission that it seeks to challenge one or
more audit findings, with or without proposed remedies, by the
shortened procedure, the Commission shall thereupon issue a notice
setting a schedule for the filing of memoranda. The person electing the
use of the shortened procedure, and any other interested entities,
including the Commission staff, shall file, by the date specified by
the Commission in the notice, an initial memorandum that addresses the
relevant facts and applicable law that support the position or
positions taken regarding the matters at issue. In the notice, the
Commission shall also set a date for the filing of reply memoranda,
which may be filed only by participants that filed initial memoranda.
Subpart T of part 385 of the Commission's regulations shall apply to
all filings. A person that consents to the matter being handled
pursuant to the shortened procedure has waived any right to
subsequently request a hearing pursuant to Sec. 41.7 and may not later
request such a hearing.
* * * * *
PART 158--ACCOUNTS, RECORDS MEMORANDA AND DISPOSITION OF CONTESTED
AUDIT FINDINGS AND PROPOSED REMEDIES
4. The authority citation for part 158 continues to read as
follows:
Authority: 15 U.S.C. 717-717w.
5. The heading of part 158 is revised to read as set forth above.
6. Sections 158.1, 158.2 and 158.3, and the undesignated center
heading preceding them, are revised to read as follows:
Disposition of Contested Audit Findings and Proposed Remedies
Sec. 158.1 Notice to audited person.
An audit conducted by the Commission or its staff under authority
of the Natural Gas Act may result in a notice of deficiency or audit
report or similar document containing a finding or findings that the
audited person has not complied with a requirement of the Commission
with respect to, but not limited to, the following: A filed tariff or
tariffs, contracts, data, records, accounts, books, communications or
papers relevant to the audit of the audited person; matters under the
Standards of Conduct or the Code of Conduct; and the activities or
operations of the audited person. The notice of deficiency, audit
report or similar document may also contain one or more proposed
remedies that address findings of noncompliance. Where such findings,
with or without proposed remedies, appear in a notice of deficiency,
audit report or similar document, such document shall be provided to
the audited person, and the finding or findings, and any proposed
remedies, shall be noted and explained. The audited person shall timely
indicate in a written response any and all findings, including any and
all proposed remedies, with which the audited person disagrees. Any
initial order that the Commission subsequently may issue with respect
to the notice of deficiency, audit report or similar document shall
note, but not address on the merits, the
[[Page 65870]]
finding or findings and any proposed remedies with which the audited
person disagreed. The Commission shall provide the audited person a
specified number of days to respond with respect to the finding or
findings and any proposed remedies with which it disagreed.
Sec. 158.2 Response to notification.
Upon issuance of a Commission order that notes a finding or
findings, with or without proposed remedies, with which the audited
person has disagreed, the audited person may: Acquiesce in the findings
and proposed remedies by not timely responding to the Commission order,
in which case the Commission may issue an order approving them or
taking other action; or challenge the finding or findings and any
proposed remedies with which it disagreed by timely notifying the
Commission in writing that it requests Commission review by means of a
shortened procedure, or, if there are material facts in dispute which
require cross-examination, a trial-type hearing.
Sec. 158.3 Shortened procedure.
If the audited person subject to a Commission order described in
Sec. 158.1 notifies the Commission that it seeks to challenge one or
more audit findings, with or without proposed remedies, by the
shortened procedure, the Commission shall thereupon issue a notice
setting a schedule for the filing of memoranda. The person electing the
use of the shortened procedure, and any other interested entities,
including the Commission staff, shall file, by the date specified by
the Commission in the notice, an initial memorandum that addresses the
relevant facts and applicable law that support the position or
positions taken regarding the matters at issue. In the notice, the
Commission shall also set a date for the filing of reply memoranda,
which may be filed only by participants that filed initial memoranda.
Subpart T of part 385 of the Commission's regulations shall apply to
all filings. A person that consents to the matter being handled
pursuant to the shortened procedure has waived any right to
subsequently request a hearing pursuant to Sec. 158.7 and may not
later request such a hearing.
* * * * *
PART 286--ADMINISTRATIVE PROCEDURES AND DISPOSITION OF CONTESTED
AUDIT FINDINGS AND PROPOSED REMEDIES
7. The authority citation for part 286 continues to read as
follows:
Authority: Administrative Procedure Act, 5 U.S.C. 551 et seq.,
Natural Gas Policy Act of 1978, Pub. L. 95-621, 92 Stat. 3350,
Department of Energy Organization Act, Pub. L. 95-91, E.O. 12009, 42
FR 46267.
8. The heading of part 286 is revised to read as set forth above.
9. Sections 286.103 through 286.109 and a new undesignated center
heading preceding them are added as follows:
Disposition of Contested Audit Findings and Proposed Remedies
Sec. 286.103 Notice to audited person.
An audit conducted by the Commission or its staff under authority
of the Natural Gas Policy Act may result in a notice of deficiency or
audit report or similar document containing a finding or findings that
the audited person has not complied with a requirement of the
Commission with respect to, but not limited to, the following: A filed
tariff or tariffs, contracts, data, records, accounts, books,
communications or papers relevant to the audit of the audited person;
matters under the Standards of Conduct or the Code of Conduct; and the
activities or operations of the audited person. The notice of
deficiency, audit report or similar document may also contain one or
more proposed remedies that address findings of noncompliance. Where
such findings, with or without proposed remedies, appear in a notice of
deficiency, audit report or similar document, such document shall be
provided to the audited person, and the finding or findings, and any
proposed remedies, shall be noted and explained. The audited person
shall timely indicate in a written response any and all findings,
including any and all proposed remedies, with which the audited person
disagrees. Any initial order that the Commission subsequently may issue
with respect to the notice of deficiency, audit report or similar
document shall note, but not address on the merits, the finding or
findings and any proposed remedies with which the audited person
disagreed. The Commission shall provide the audited person a specified
number of days to respond with respect to the finding or findings and
any proposed remedies with which it disagreed.
Sec. 286.104 Response to notification.
Upon issuance of a Commission order that notes a finding or
findings, with or without proposed remedies, with which the audited
person has disagreed, the audited person may: Acquiesce in the findings
and proposed remedies by not timely responding to the Commission order,
in which case the Commission may issue an order approving them or
taking other action; or challenge the finding or findings and any
proposed remedies with which it disagreed by timely notifying the
Commission in writing that it requests Commission review by means of a
shortened procedure, or, if there are material facts in dispute which
require cross-examination, a trial-type hearing.
Sec. 286.105 Shortened procedure.
If the audited person subject to a Commission order described in
Sec. 286.103 notifies the Commission that it seeks to challenge one or
more audit findings, with or without proposed remedies, by the
shortened procedure, the Commission shall thereupon issue a notice
setting a schedule for the filing of memoranda. The person electing the
use of the shortened procedure, and any other interested entities,
including the Commission staff, shall file, by the date specified by
the Commission in the notice, an initial memorandum that addresses the
relevant facts and applicable law that support the position or
positions taken regarding the matters at issue. In the notice, the
Commission shall also set a date for the filing of reply memoranda,
which may be filed only by participants that filed initial memoranda.
Subpart T of part 385 of the Commission's regulations shall apply to
all filings. A person that consents to the matter being handled
pursuant to the shortened procedure has waived any right to
subsequently request a hearing pursuant to Sec. 286.109 and may not
later request such a hearing.
Sec. 286.106 Form and style.
Each copy of such memorandum must be complete in itself. All
pertinent data should be set forth fully, and each memorandum should
set out the facts and argument as prescribed for briefs in Sec.
385.706 of this chapter.
Sec. 286.107 Verification.
The facts stated in the memorandum must be sworn to by persons
having knowledge thereof, which latter fact must affirmatively appear
in the affidavit. Except under unusual circumstances, such persons
should be those who would appear as witnesses if hearing were had to
testify as to the facts stated in the memorandum.
Sec. 286.108 Determination.
If no formal hearing is had the matter in issue will be determined
by the Commission on the basis of the facts and arguments submitted.
Sec. 286.109 Assignment for oral hearing.
Except when there are no material facts in dispute, when a person
does not
[[Page 65871]]
consent to the shortened procedure, the Commission will assign the
proceeding for hearing as provided by subpart E of part 385 of this
chapter. Notwithstanding a person's not giving consent to the shortened
procedure, and instead seeking assignment for hearing as provided for
by subpart E of part 385 of this chapter, the Commission will not
assign the proceeding for a hearing when no material facts are in
dispute. The Commission may also, in its discretion, at any stage in
the proceeding, set the proceeding for hearing.
10. Part 349 is added to Subchapter P to read as follows:
PART 349--DISPOSITION OF CONTESTED AUDIT FINDINGS AND PROPOSED
REMEDIES
Sec.
349.1 Notice to audited person.
349.2 Response to notification.
349.3 Shortened procedure.
349.4 Form and style.
349.5 Verification.
349.6 Determination.
349.7 Assignment for oral hearing.
Authority: 42 U.S.C. 7101-7352; 49 U.S.C. 60502; 49 App. U.S.C.
1-85.
Sec. 349.1 Notice to audited person.
An audit conducted by the Commission or its staff under authority
of the Interstate Commerce Act may result in a notice of deficiency or
audit report or similar document containing a finding or findings that
the audited person has not complied with a requirement of the
Commission with respect to, but not limited to, the following: A filed
tariff or tariffs, contracts, data, records, accounts, books,
communications or papers relevant to the audit of the audited person;
matters under the Standards of Conduct or the Code of Conduct; and the
activities or operations of the audited person. The notice of
deficiency, audit report or similar document may also contain one or
more proposed remedies that address findings of noncompliance. Where
such findings, with or without proposed remedies, appear in a notice of
deficiency, audit report or similar document, such document shall be
provided to the audited person, and the finding or findings, and any
proposed remedies, shall be noted and explained. The audited person
shall timely indicate in a written response any and all findings,
including any and all proposed remedies, with which the audited person
disagrees. Any initial order that the Commission subsequently may issue
with respect to the notice of deficiency, audit report or similar
document shall note, but not address on the merits, the finding or
findings and any proposed remedies with which the audited person
disagreed. The Commission shall provide the audited person a specified
number of days to respond with respect to the finding or findings and
any proposed remedies with which it disagreed.
Sec. 349.2 Response to notification.
Upon issuance of a Commission order that notes a finding or
findings, with or without proposed remedies, with which the audited
person has disagreed, the audited person may: Acquiesce in the findings
and proposed remedies by not timely responding to the Commission order,
in which case the Commission may issue an order approving them or
taking other action; or challenge the finding or findings and any
proposed remedies with which it disagreed by timely notifying the
Commission in writing that it requests Commission review by means of a
shortened procedure, or, if there are material facts in dispute which
require cross-examination, a trial-type hearing.
Sec. 349.3 Shortened procedure.
If the audited person subject to a Commission order described in
Sec. 349.1 above notifies the Commission that it seeks to challenge
one or more audit findings, with or without proposed remedies, by the
shortened procedure, the Commission shall thereupon issue a notice
setting a schedule for the filing of memoranda. The person electing the
use of the shortened procedure, and any other interested entities,
including the Commission staff, shall file, by the date specified by
the Commission in the notice, an initial memorandum that addresses the
relevant facts and applicable law that support the position or
positions taken regarding the matters at issue. In the notice, the
Commission shall also set a date for the filing of reply memoranda,
which may be filed only by participants that filed initial memoranda.
Subpart T of Part 385 of the Commission's regulations shall apply to
all filings. A person that consents to the matter being handled
pursuant to the shortened procedure has waived any right to
subsequently request a hearing pursuant to Sec. 349.7 and may not
later request such a hearing.
Sec. 349.4 Form and style.
Each copy of such memorandum must be complete in itself. All
pertinent data should be set forth fully, and each memorandum should
set out the facts and argument as prescribed for briefs in Sec.
385.706 of this chapter.
Sec. 349.5 Verification.
The facts stated in the memorandum must be sworn to by persons
having knowledge thereof, which latter fact must affirmatively appear
in the affidavit. Except under unusual circumstances, such persons
should be those who would appear as witnesses if hearing were had to
testify as to the facts stated in the memorandum.
Sec. 349.6 Determination.
If no formal hearing is had the matter in issue will be determined
by the Commission on the basis of the facts and arguments submitted.
Sec. 349.7 Assignment for oral hearing.
Except when there are no material facts in dispute, when a person
does not consent to the shortened procedure, the Commission will assign
the proceeding for hearing as provided by subpart E of part 385 of this
chapter. Notwithstanding a person's not giving consent to the shortened
procedure, and instead seeking assignment for hearing as provided for
by subpart E of part 385 of this chapter, the Commission will not
assign the proceeding for a hearing when no material facts are in
dispute. The Commission may also, in its discretion, at any stage in
the proceeding, set the proceeding for hearing.
[FR Doc. 05-21422 Filed 10-31-05; 8:45 am]
BILLING CODE 6717-01-P
