Revision of Rules of Practice and Procedure Regarding Issue Identification, 14640-14642 [06-2800]

Download as PDF 14640 Federal Register / Vol. 71, No. 56 / Thursday, March 23, 2006 / Rules and Regulations Engine model Manufacturer Aircraft model O–360–A1F6D ................................................... Cessna ............................................................. 177 Cardinal O–360–A1G6D ................................................... Beech ............................................................... 76 Duchess O–360–A1H6 ..................................................... Piper ................................................................. PA–44–180 O–360–E1A6D ................................................... Piper ................................................................. PA–44–180 O–360–F1A6 ...................................................... Cessna ............................................................. C–172RG Cutlass RG IO–360–C1D6 .................................................... Sold as a spare engine. LIO–360–C1E6 .................................................. Sold as a spare engine. LO–360–E1A6d .................................................. Sold as a spare engine. LIO–360–C1D6 .................................................. Sold as a spare engine. Unsafe Condition Alternative Methods of Compliance (d) This AD results from a crankshaft failure in a Lycoming LO–360–A1H6 reciprocating engine. We are issuing this AD to prevent failure of the crankshaft, which could result in total engine power loss, inflight engine failure, and possible loss of the aircraft. (l) The Manager, New York Aircraft Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. rmajette on PROD1PC67 with RULES (e) You are responsible for having the actions required by this AD performed within 50 hours time-in-service or 6 months after the effective date of this AD, whichever is earlier, unless the actions have already been done. (f) If Lycoming Engines manufactured new, rebuilt, overhauled, or replaced the crankshaft in your engine before March 1, 1999, and you haven’t had the crankshaft replaced, no further action is required. (g) If Table 1 of Supplement No. 1 to Lycoming Mandatory Service Bulletin (MSB) No. 566, dated November 30, 2005, lists your engine serial number (SN), use Table 2 of Supplement No. 1 to verify if your crankshaft SN is listed. (h) If Table 1 of Supplement No. 1 to Lycoming MSB No. 566, dated November 30, 2005, does not list your engine SN, use Table 2 of Supplement No. 1 to verify if your crankshaft SN is listed, if an affected crankshaft was installed as a replacement. (i) If Table 2 of Supplement No. 1 to Lycoming Engines MSB No. 566, dated November 30, 2005, lists your crankshaft SN, replace the crankshaft with a crankshaft that is not listed in Table 2 of Supplement No. 1 to Lycoming MSB No. 566, dated July 11, 2005. (j) The engine and crankshaft SNs listed in Table 1 and Table 2 of Supplement No.1 to Lycoming Engines MSB No. 566 are different from the engine and crankshaft SNs affected by Lycoming MSBs No. 552, No. 553 and No. 566; and ADs 2002–19–03 and 2005–19–11. Material Incorporated by Reference Prohibition Against Installing Certain Crankshafts BILLING CODE 4910–13–P (n) You must use Lycoming Engines Supplement No. 1 to Mandatory Service Bulletin No. 566, dated November 30, 2005, to perform the crankshaft replacements required by this AD. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Lycoming, 652 Oliver Street, Williamsport, PA 17701; telephone (570) 323–6181; fax (570) 327–7101, or go on the Internet at https:// www.Lycoming.Textron.com for a copy of this service information. You may review copies at the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL–401, Washington, DC 20590–0001, on the Internet at https://dms.dot.gov, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to: https:// www.archives.gov/federal-register/cfr/ibrlocations.html. Issued in Burlington, Massachusetts, on March 15, 2006. Peter A. White, Assistant Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. 06–2759 Filed 3–22–06; 8:45 am] (k) After the effective date of this AD, do not install any crankshaft that has a SN listed in Table 2 of Supplement No. 1 to Lycoming MSB No. 566, dated November 30, 2005, into any engine. VerDate Aug<31>2005 13:41 Mar 22, 2006 Jkt 208001 PO 00000 Frm 00012 Fmt 4700 Federal Energy Regulatory Commission 18 CFR Part 385 [Docket No. RM05–33–001] Related Information (m) None. Compliance DEPARTMENT OF ENERGY Sfmt 4700 Revision of Rules of Practice and Procedure Regarding Issue Identification Federal Energy Regulatory Commission. ACTION: Final rule. AGENCY: SUMMARY: The Federal Energy Regulatory Commission (Commission) is revising its regulations regarding pleadings. The regulations are revised to eliminate, in all pleadings except requests for rehearing, a recent formatting requirement that the pleadings contain a section entitled ‘‘Statement of Issues.’’ DATES: Effective Date: The rule will become effective March 23, 2006. FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the General Counsel, GC–10, 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; Order No. 663–A; Final Rule; Issued March 17, 2006 1. The Federal Energy Regulatory Commission (Commission) is revising its rules of practice and procedure to eliminate for all pleadings, except requests for rehearing, a recent change in Order No. 663 requiring that any issues a filer wishes the Commission to address be clearly set forth in a section of the pleading entitled ‘‘Statement of E:\FR\FM\23MRR1.SGM 23MRR1 rmajette on PROD1PC67 with RULES Federal Register / Vol. 71, No. 56 / Thursday, March 23, 2006 / Rules and Regulations Issues’’ and that ‘‘any issue not so listed will be deemed waived.’’ 1 Several months of experience under the new rule has indicated that it is not necessary in the context of all pleadings; however the Commission is retaining the requirement as it applies to Rule 713, request for rehearing. 2. In Order No. 663, the Commission stated that it believed the changes to 18 CFR 385.203(a)(7) and 385.713 would benefit both the Commission and participants by providing certainty with respect to issues being raised. In the meantime, the requirement for a ‘‘Statement of Issues’’ section has not proven particularly helpful for a number of common pleadings, and has led to confusion on the part of filers. For instance, many motions to intervene do not contest specific issues in the pleadings. Filers in those types of situations have puzzled over what information, if any, belongs in a Statement of Issues for their motion to intervene. To eliminate this confusion and simplify the pleadings format, the requirement for a separate Statement of Issues section is being eliminated from Rule 203. Parties will not be prejudiced by this formatting change, given that § 385.203(a)(7) will maintain its original requirement that pleadings 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. * * *’’ This will provide adequate notice for the issues raised in the pleadings. This rule deletes the following language from § 385.203(a)(7): ‘‘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. However, the Commission finds that a ‘‘Statement of Issues’’ requirement is necessary in the context of requests for rehearing. Requiring the party seeking rehearing to specify each issue being raised in a separate paragraph benefits the Commission by clarifying the issues it needs to address on rehearing. More importantly, it benefits parties seeking rehearing. As noted in Order No. 663, both the Natural Gas Act and Federal Power Act mandate that issues be raised on rehearing as a jurisdictional prerequisite to obtaining 1 Revision of Rules of Practice and Procedure Regarding Issue Identification, Order No. 663, 70 FR 55723 at P 5 (September 23, 2005), III FERC Stats. & Regs. ¶ 31,193 (September 16, 2005). VerDate Aug<31>2005 13:41 Mar 22, 2006 Jkt 208001 judicial review of a Commission order.2 Order No. 663 at P 4. Courts have found no jurisdiction to address issues that were not raised on rehearing.3 Therefore, the requirement for a separate section specifically enumerating issues raised on rehearing benefits parties seeking rehearing because it prevents them from having cases denied on appeal for failure to clearly raise the issue at the administrative level. 4. Moreover, requiring all issues to be set forth with specificity in separately enumerated paragraphs helps to ensure that the Commission will adequately address the issues raised in the rehearing request for purposes of judicial review. As noted in Order No. 663, there are numerous instances where appeals were denied because the court found that a petitioner’s position was not clearly articulated before the Commission.4 2 Section 19(b) of the Natural Gas Act, 15 U.S.C. 717r(b), states that ‘‘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.’’ Section 313(a) of the Federal Power Act, 16 U.S.C. 825l(a) states that ‘‘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.’’ 3 See DTE Energy Co. v. FERC, 394 F.3d 954, 960 (DC Cir. 2005) (finding petitioner’s failure to seek rehearing ‘‘fatal’’ to its court challenge, noting that ‘‘[t]he mandatory requirement of filing a petition for rehearing is designed to afford the Commission an opportunity to invoke its expertise or to correct any errors prior to judicial review’’); Fuel Safe Washington v. FERC, 389 F.3d 1313 (10th Cir. 2004) (‘‘the presentation of a ground of objection in an application for rehearing by the Commission is an indispensable prerequisite to the exercise of power of judicial review of the order on such ground,’’ quoting Pan Am Petroleum Corp. v. FPC, 268 F.2d 827, 830 (10th Cir. 1959)). 4 See, e.g., Intermountain Municipal Gas v. FERC, 326 F.3d 1282 at 1285 (DC Cir. 2003) (finding no jurisdiction because ‘‘so general and vague a statement’’ in a petition for rehearing fails to meet the requirement in section 19(b) of the Natural Gas Act, which requires that objections be ‘‘‘specifically urged,’’’ quoting Louisiana Interstate Gas Corp. v. FERC, 962 F.2d 37, 41 (DC Cir. 1992)); 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] to consider’’), reh’g en banc denied, 361 F.3d 517 (2004); California Dep’t of Water v. FERC, 306 F.3d 1121, 1126 (DC Cir. 2002) (court dismisses petition for judicial review because issue raised in a footnote ‘‘does not properly present, and thus does not preserve, the issue the intervenors wish to argue’’); and 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’’), reh’g en banc denied, 2002 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 14641 5. This final rule also amends the language in Rule 713 to account for the now-eliminated requirement in Rule 203(a) to include a ‘‘Statement of Issues’’ section. Current Rule 713 states that requests for rehearing must ‘‘[c]onform 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; and * * *.’’ 5 This section is being revised to state that requests for rehearing must ‘‘[c]onform to the requirements in Rule 203(a), which are applicable to pleadings, and, in addition, include 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 * * *.’’ 6. The rehearing rule at § 385.713(c)(2) continues to specify that issues not so raised will be deemed to have been waived. As noted in Order No. 663 at P 7, 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.6 7. The revisions adopted in this rule are more appropriately characterized as a clarification of the Commission’s rules rather than a change in Commission policy or a significant revision of the existing rules of practice and procedure. Rule 713, prior to the enactment of Order No. 663, required parties filing for rehearing to ‘‘state concisely the alleged error in the final decision or final order.’’ However, Rule 713 was neither adhered to uniformly nor applied in pleadings consistently. Therefore, we are requiring that all rehearing requests include a separately designated section and an itemized and enumerated Statement of Issues, which will help eliminate ambiguities among parties, the Commission, and the reviewing courts, as discussed above. 8. The changes that are made in this rule eliminate one requirement in Rule 203(a)(7) and make necessary amendments to Rule 713(c)(2) to reflect the change in Rule 203(a)(7). U.S. App. LEXIS 21769 (8th Cir. Oct. 17, 2002), cert. denied, 538 U.S. 960 (2003). 5 18 CFR 385.713(c)(2), as modified by Order No. 663, P 6. 6 18 CFR 385.2001(b)(2005). E:\FR\FM\23MRR1.SGM 23MRR1 14642 Federal Register / Vol. 71, No. 56 / Thursday, March 23, 2006 / Rules and Regulations 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.7 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 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) 8 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 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 rmajette on PROD1PC67 with RULES 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 (https://www.ferc.gov) under ‘‘What’s New’’ 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 7 Regulations Implementing the National Environmental Policy Act, Order No. 486, 52 FR 47897 (December 17, 1987), FERC Stats. & Regs. Preambles 1986–1990 ¶ 30,783 (1987). 8 5 U.S.C. 601–612 (1994). VerDate Aug<31>2005 13:41 Mar 22, 2006 Jkt 208001 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 1–866–208–3673 (toll free) or 202–502–6652 (e-mail at FERCOnlineSupport@ferc.gov) or the Public Reference Room at (202) 502– 8371, TTY (202) 502–8659. E-Mail the Public Reference Room at public.referenceroom@ferc.gov. 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 eliminating a requirement 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. I PART 385—RULES OF PRACTICE AND PROCEDURE 1. The authority citation for part 385 continues to read as follows: I Authority: 5 U.S.C. 551–557; 15 U.S.C. 717–717z; 3301–3432; 16 U.S.C. 791a–825r; PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 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: I § 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; * * * * * I 3. Section 385.713 is amended by revising paragraph (c)(2) to read as follows: § 385.713 713). Request for rehearing (Rule * * * * * (c) * * * (2) Conform to the requirements in Rule 203(a), which are applicable to pleadings, and, in addition, include 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. 06–2800 Filed 3–22–06; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 520 Oral Dosage Form New Animal Drugs; Orbifloxacin AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration (FDA) is amending the animal drug regulations to reflect approval of a supplemental new animal drug application (NADA) filed by Schering-Plough Animal Health Corp. The supplemental NADA provides for revised animal safety labeling for orbifloxacin tablets used in dogs and cats for the management of diseases associated with susceptible bacteria. DATES: This rule is effective March 23, 2006. FOR FURTHER INFORMATION CONTACT: Melanie R. Berson, Center for Veterinary Medicine (HFV–110), Food and Drug E:\FR\FM\23MRR1.SGM 23MRR1

Agencies

[Federal Register Volume 71, Number 56 (Thursday, March 23, 2006)]
[Rules and Regulations]
[Pages 14640-14642]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-2800]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 385

[Docket No. RM05-33-001]


Revision of Rules of Practice and Procedure Regarding Issue 
Identification

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
revising its regulations regarding pleadings. The regulations are 
revised to eliminate, in all pleadings except requests for rehearing, a 
recent formatting requirement that the pleadings contain a section 
entitled ``Statement of Issues.''

DATES: Effective Date: The rule will become effective March 23, 2006.

FOR FURTHER INFORMATION CONTACT: Carol C. Johnson, Office of the 
General Counsel, GC-10, 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; Order No. 663-A; Final Rule; Issued March 17, 
2006

    1. The Federal Energy Regulatory Commission (Commission) is 
revising its rules of practice and procedure to eliminate for all 
pleadings, except requests for rehearing, a recent change in Order No. 
663 requiring that any issues a filer wishes the Commission to address 
be clearly set forth in a section of the pleading entitled ``Statement 
of

[[Page 14641]]

Issues'' and that ``any issue not so listed will be deemed waived.'' 
\1\ Several months of experience under the new rule has indicated that 
it is not necessary in the context of all pleadings; however the 
Commission is retaining the requirement as it applies to Rule 713, 
request for rehearing.
---------------------------------------------------------------------------

    \1\ Revision of Rules of Practice and Procedure Regarding Issue 
Identification, Order No. 663, 70 FR 55723 at P 5 (September 23, 
2005), III FERC Stats. & Regs. ] 31,193 (September 16, 2005).
---------------------------------------------------------------------------

    2. In Order No. 663, the Commission stated that it believed the 
changes to 18 CFR 385.203(a)(7) and 385.713 would benefit both the 
Commission and participants by providing certainty with respect to 
issues being raised. In the meantime, the requirement for a ``Statement 
of Issues'' section has not proven particularly helpful for a number of 
common pleadings, and has led to confusion on the part of filers. For 
instance, many motions to intervene do not contest specific issues in 
the pleadings. Filers in those types of situations have puzzled over 
what information, if any, belongs in a Statement of Issues for their 
motion to intervene. To eliminate this confusion and simplify the 
pleadings format, the requirement for a separate Statement of Issues 
section is being eliminated from Rule 203. Parties will not be 
prejudiced by this formatting change, given that Sec.  385.203(a)(7) 
will maintain its original requirement that pleadings 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. * * *'' This will provide adequate 
notice for the issues raised in the pleadings. This rule deletes the 
following language from Sec.  385.203(a)(7): ``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. However, the Commission finds that a ``Statement of Issues'' 
requirement is necessary in the context of requests for rehearing. 
Requiring the party seeking rehearing to specify each issue being 
raised in a separate paragraph benefits the Commission by clarifying 
the issues it needs to address on rehearing. More importantly, it 
benefits parties seeking rehearing. As noted in Order No. 663, both the 
Natural Gas Act and Federal Power Act mandate that issues be raised on 
rehearing as a jurisdictional prerequisite to obtaining judicial review 
of a Commission order.\2\ Order No. 663 at P 4. Courts have found no 
jurisdiction to address issues that were not raised on rehearing.\3\ 
Therefore, the requirement for a separate section specifically 
enumerating issues raised on rehearing benefits parties seeking 
rehearing because it prevents them from having cases denied on appeal 
for failure to clearly raise the issue at the administrative level.
---------------------------------------------------------------------------

    \2\ Section 19(b) of the Natural Gas Act, 15 U.S.C. 717r(b), 
states that ``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.'' Section 313(a) of the 
Federal Power Act, 16 U.S.C. 825l(a) states that ``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.''
    \3\ See DTE Energy Co. v. FERC, 394 F.3d 954, 960 (DC Cir. 2005) 
(finding petitioner's failure to seek rehearing ``fatal'' to its 
court challenge, noting that ``[t]he mandatory requirement of filing 
a petition for rehearing is designed to afford the Commission an 
opportunity to invoke its expertise or to correct any errors prior 
to judicial review''); Fuel Safe Washington v. FERC, 389 F.3d 1313 
(10th Cir. 2004) (``the presentation of a ground of objection in an 
application for rehearing by the Commission is an indispensable 
prerequisite to the exercise of power of judicial review of the 
order on such ground,'' quoting Pan Am Petroleum Corp. v. FPC, 268 
F.2d 827, 830 (10th Cir. 1959)).
---------------------------------------------------------------------------

    4. Moreover, requiring all issues to be set forth with specificity 
in separately enumerated paragraphs helps to ensure that the Commission 
will adequately address the issues raised in the rehearing request for 
purposes of judicial review. As noted in Order No. 663, there are 
numerous instances where appeals were denied because the court found 
that a petitioner's position was not clearly articulated before the 
Commission.\4\
---------------------------------------------------------------------------

    \4\ See, e.g., Intermountain Municipal Gas v. FERC, 326 F.3d 
1282 at 1285 (DC Cir. 2003) (finding no jurisdiction because ``so 
general and vague a statement'' in a petition for rehearing fails to 
meet the requirement in section 19(b) of the Natural Gas Act, which 
requires that objections be ```specifically urged,''' quoting 
Louisiana Interstate Gas Corp. v. FERC, 962 F.2d 37, 41 (DC Cir. 
1992)); 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] to consider''), reh'g en banc 
denied, 361 F.3d 517 (2004); California Dep't of Water v. FERC, 306 
F.3d 1121, 1126 (DC Cir. 2002) (court dismisses petition for 
judicial review because issue raised in a footnote ``does not 
properly present, and thus does not preserve, the issue the 
intervenors wish to argue''); and 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''), reh'g en banc denied, 2002 
U.S. App. LEXIS 21769 (8th Cir. Oct. 17, 2002), cert. denied, 538 
U.S. 960 (2003).
---------------------------------------------------------------------------

    5. This final rule also amends the language in Rule 713 to account 
for the now-eliminated requirement in Rule 203(a) to include a 
``Statement of Issues'' section. Current Rule 713 states that requests 
for rehearing must ``[c]onform 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; and * * *.'' \5\ This section is being revised to state that 
requests for rehearing must ``[c]onform to the requirements in Rule 
203(a), which are applicable to pleadings, and, in addition, include 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 * * *.''
---------------------------------------------------------------------------

    \5\ 18 CFR 385.713(c)(2), as modified by Order No. 663, P 6.
---------------------------------------------------------------------------

    6. The rehearing rule at Sec.  385.713(c)(2) continues to specify 
that issues not so raised will be deemed to have been waived. As noted 
in Order No. 663 at P 7, 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.\6\
---------------------------------------------------------------------------

    \6\ 18 CFR 385.2001(b)(2005).
---------------------------------------------------------------------------

    7. The revisions adopted in this rule are more appropriately 
characterized as a clarification of the Commission's rules rather than 
a change in Commission policy or a significant revision of the existing 
rules of practice and procedure. Rule 713, prior to the enactment of 
Order No. 663, required parties filing for rehearing to ``state 
concisely the alleged error in the final decision or final order.'' 
However, Rule 713 was neither adhered to uniformly nor applied in 
pleadings consistently. Therefore, we are requiring that all rehearing 
requests include a separately designated section and an itemized and 
enumerated Statement of Issues, which will help eliminate ambiguities 
among parties, the Commission, and the reviewing courts, as discussed 
above.
    8. The changes that are made in this rule eliminate one requirement 
in Rule 203(a)(7) and make necessary amendments to Rule 713(c)(2) to 
reflect the change in Rule 203(a)(7).

[[Page 14642]]

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.\7\ 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 rule is procedural in nature 
and, therefore, falls under this exception; consequently, no 
environmental consideration is necessary.
---------------------------------------------------------------------------

    \7\ Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (December 17, 1987), FERC Stats. & 
Regs. Preambles 1986-1990 ] 30,783 (1987).
---------------------------------------------------------------------------

Regulatory Flexibility Act Certification

    11. The Regulatory Flexibility Act of 1980 (RFA) \8\ 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 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.
---------------------------------------------------------------------------

    \8\ 5 U.S.C. 601-612 (1994).
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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 (https://www.ferc.gov) under ``What's 
New'' 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 1-866-208-3673 (toll free) or 202-502-
6652 (e-mail at FERCOnlineSupport@ferc.gov) or the Public Reference 
Room at (202) 502-8371, TTY (202) 502-8659. E-Mail the Public Reference 
Room at public.referenceroom@ferc.gov.

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 eliminating a requirement 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 non-agency 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.

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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

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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).

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2. Section 385.203 is amended by revising paragraph (a)(7) to read as 
follows:


Sec.  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;
* * * * *

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3. Section 385.713 is amended by revising paragraph (c)(2) to read as 
follows:


Sec.  385.713  Request for rehearing (Rule 713).

* * * * *
    (c) * * *
    (2) Conform to the requirements in Rule 203(a), which are 
applicable to pleadings, and, in addition, include 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. 06-2800 Filed 3-22-06; 8:45 am]
BILLING CODE 6717-01-P

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