CFR Subpart K

CFR Subpart K
in effect

18 C.F.R. § 385.1101 Applicability (Rule 1101).

(a) Proceedings to which applicable. Except as provided in paragraph (b) of this section, this subpart applies to proceedings of the Commission held in accordance with section 502(c) of the NGPA to provide for adjustments of: (1) Commission rules, and (2) Commission orders having the applicability and effect of a rule as defined in section 551(4) of title 5 of the United States Code (5 U.S.C. 551(4)) and issued under the NGPA, except orders issued under sections 301, 302, and 303 of the NGPA. (b) This subpart does not apply to: (1) Proceedings wherein the Commission by order grants an adjustment on its own motion or; (2) Proceedings for which the Commission by order waives the provision of this subpart. (c) Relationship to other rules. (1) Where a provision of this subpart is inconsistent with a provision in another subpart of this part, the former provision controls. (2) When provisions of other subparts of this part require Commission action, such provisions as applied under this subpart shall be deemed to require staff action. This subpart does not require a hearing to which subpart E applies.

18 C.F.R. § 385.1102 Definitions (Rule 1102).

For purposes of this subpart: (a) Adjustment means an order issued by Staff under Rule 1109 (orders): (1) Granting relief from an order or rule issued by the Commission under the NGPA, (i) Including exceptions, exemptions, modification, and rescissions of rules and orders have the effect of rule as defined in section 551 of title 5 of the United States Code (5 U.S.C. 551(4)) and issued under the NGPA; but (ii) Excluding requests for just and reasonable rates under sections 104, 106, and 109 of the NGPA; and (2) Granting an exemption, in whole or in part, for incrementally priced industrial boiler fuel facilities from section 201 of the NGPA, under the authority of section 206(d) of the NGPA and § 282.206 (industrial boiler fuel facilities exemption); (b) Petitioner means a person who files a petition for adjustment under paragraph (c) of this section; (c) Petition means a petition for adjustment filed under Rule 1103 (commencement of adjustment proceedings); (d) NGPA means the Natural Gas Policy Act of 1978; (e) Party means, with respect to a particular petition for adjustment, the person making the petition, and intervener, or a person who has moved to intervene but whose motion has not been granted or denied under Rule 1105(b) (intervention in adjustment proceedings). (f) Staff means the Director of the Office of Producer and Pipeline Regulation, or a person who is designated by the Director and who is an employee of the Commission.

18 C.F.R. § 385.1103 Commencement of proceeding (Rule 1103).

A person commences a proceeding for an adjustment by filing a petition for adjustment with the Commission.

18 C.F.R. § 385.1104 Initial petition (Rule 1104).

(a) Content. (1) The petition must contain: (i) A full and complete statement of the relevant facts, including the documentary support pertaining to the circumstances, act or transaction that is the subject of the petition; (ii) A complete statement of the business reasons why the relief should be granted and the business consequences that will result if the relief is denied; and (iii) A statement specifying how the denial of relief will cause the applicant to suffer special hardship, inequity, or unfair distribution of burdens. (2) The petition must contain a complete statement of the legal basis of the relief requested including citations to authorities relied upon to support the petition. (3) The petition must specify the exact nature of the relief sought. (4) The certificate of service required under Rule 2010(h) (certificate of service) must indicate the names and addresses of all persons served. (5) The petition must include a form of notice suitable for publication in the Federal Register in accordance with the specifications in § 385.203(d) of this part. (6) The petition must be accompanied by the fee prescribed in § 381.401 of this chapter or by a petition for waiver pursuant to § 381.106 of this chapter. (b) Service. (1) The petitioner must serve a copy of the petition, or a copy from which confidential information has been deleted in accordance with Rule 1112 (requests for confidential treatment) on each person who is reasonably ascertainable by the petitioner as a person who may suffer direct and measurable economic impact if the relief is granted. (2) Notwithstanding paragraph (b)(1) of this section, if a petitioner determines that compliance with such paragraph of this section would be impracticable, the petitioner must: (i) Comply with the requirements of such paragraph with regard to those persons whom it is reasonable and practicable to serve; and (ii) Include with the petition a description of the persons or class or classes of persons to whom notice was not sent. (3) Staff may require the petitioner to provide alternate or additional service and will cause notice of the application to be published in the Federal Register.

18 C.F.R. § 385.1105 Intervention (Rule 1105).

(a) A motion to intervene in an adjustment proceeding, in conformity with Rule 214 (intervention) must be filed within 15 days after publication in the Federal Register of notice of the petition for adjustment. (b) A motion to intervene is granted unless it is denied by staff within 75 days after the day on which it was filed.

18 C.F.R. § 385.1106 Other filings (Rule 1106).

(a) Interveners. Responses to the petition must be filed at the time the motion to intervene is filed. (b) Petitioner. The petitioner may respond to filings of another party within 15 days after service of such filings. Amended pleadings may be filed under Rule 215 (amendments) if the petitioner discovers facts unavailable at the time the initial petition was filed, or if such pleadings are requested or permitted by Staff under Rule 1107 (evaluations).

18 C.F.R. § 385.1107 Evaluations (Rule 1107).

(a) Staff will consider the filings made in connection with the petition for adjustment. Staff may also consider information received under paragraph (b) of this section. If Staff obtains information under paragraphs (b)(1) or (b)(3) of this section and relies upon such information, the petitioner will be advised of such information and will be given 15 days to respond to such information. (b)(1) Staff may initiate an investigation of any statement in a petition and use in its evaluation any relevant fact obtained in such an investigation. (2) Staff may request additional information from the petitioner. (3) Staff may solicit and accept submissions from interveners or third persons relevant to the petition. (4) Staff may consider information obtained in informal conferences held under Rule 1111 (adjustment conferences).

18 C.F.R. § 385.1108 Criteria (Rule 1108).

(a) Staff will grant a petition where there are sufficient facts to make a determination on the merits and where Staff determines that an adjustment is necessary to prevent or alleviate: (1) Special hardship; (2) Inequity; or (3) An unfair distribution of burdens. (b) When there are not sufficient facts to make a determination on the merits, the Staff may dismiss the petition without prejudice; except, that when Staff has requested additional material information under Rule 1107 (adjustment evaluations) of this section and the petitioner has failed to provide the requested information, Staff may deny the petition if the requested information was reasonably available to the petitioner.

18 C.F.R. § 385.1109 Orders (Rule 1109).

(a) Staff will issue a decision and an order granting or denying the petition in whole or in part. The order will articulate the basis for the decision, noting any dispute with the factual assertions of the petitioner. (b) In addition to service otherwise required under this subpart, Staff will serve the decision and order on the persons who sought and were denied an opportunity to participate in the proceeding under this subpart. (c) If Staff fails to issue an order granting or denying the petition for adjustment within the determination period, the petitioner may treat the application as having been denied and may, within 30 days after the close of the determination period, request review thereof as prescribed in Rule 1110(a) (review of denials). For purposes of this paragraph, “determination period” means the 150 days commencing with the filing of the petition, unless Staff for good cause extends such period. (d) An order of Staff issued under paragraph (a) of this section granting an adjustment, in whole or in part, is final 30 days after it is issued, unless, during such 30-day period: (1) A petition for review is filed under subpart J of this subchapter in accordance with Rule 1110(a) (review of denials) in which case the order is final when the review process under subpart J has been completed; or (2) The Commission directs that the order be reviewed under subpart J in accordance with Rule 1110(b), in which case the order is final when the review process under subpart J has been completed unless the Commission expressly states that the order shall be effective pending review proceeding.

18 C.F.R. § 385.1110 Review of initial decision and order for adjustment (Rule 1110).

(a) General rule. (1) Within 30 days after the issuance by Staff of an order granting or denying, in whole or in part, a petition for adjustment relief under this subpart, a person may file a petition for Commission review of that order in accordance with subpart J of this subchapter, if the person: (i) Is aggrieved or adversely affected by that order; and (ii) Participated, or sought and was denied an opportunity to participate, in the proceeding under this subpart. (2) Except as otherwise provided in this paragraph, the provisions of subpart J other than Rule 1013 (attachments to pleadings) shall apply to Commission review of both grants and denials of adjustment petitions under this subpart. (i) Contested order in subpart J means the order issued by Staff granting or denying, in whole or in part, a petition for adjustment under this subpart. (ii) “Staff” is substituted for “Secretary” in subpart J. With respect to review of an order denying a petition for adjustment under this subpart, Staff may participate in the proceeding in the same manner prescribed for the Secretary in Rule 1005 (replies in reviews of adjustment denials). With respect to review of an order granting a petition for adjustment under this subpart, Staff may not participate in the proceeding except to the extent necessary to file the list identifying the documents in the record as prescribed in paragraph (a)(2)(iii). With respect to review of an order granting in part and denying in part a petition for adjustment under this subpart, Staff may participate as prescribed in Rule 1005(a)(1) (replies), only if a petition for review has been filed which specifically seeks review of the portion of the order denying the petition for adjustment. (iii) Within 15 days of service of the petition for review, Staff must file with the Commission a list identifying each document in the record developed in the prior proceedings on the contested order, who filed the document, and the date it was filed. (3) A motion to intervene under Rule 1005(c) (interventions in adjustment proceedings) may be filed only by a person who sought and was denied an opportunity to participate, in the proceeding under this section. A person who did not file a motion to intervene in the Staff proceeding may file a motion for late intervention under Rule 214(d) (grant of late intervention). (4) There is no exhaustion of administrative remedies until a request for review is filed under subpart J in accordance with this section and the review process under subpart J is completed by the issuance of an order granting or denying, in whole or in part, the relief requested. (b) Review initiated by the Commission. Within 30 days after the issuance by Staff of an order granting, in whole or in part, a petition for adjustment relief under this subpart, the Commission may direct that the order be reviewed in a proceeding which, insofar as practicable, will conform to proceedings under subpart J. The order directing such review will specify the manner in which such proceeding will be conducted and the extent to which subpart J apply. (c) Separation of functions. Any person who participated in the proceeding to review the grant or denial of that adjustment under this Rule as a witness or counsel may not advise the Commission concerning the review of the grant or denial of that adjustment.

18 C.F.R. § 385.1111 Conferences (Rule 1111).

Staff may direct that a conference be convened. The conference will be conducted by Staff in accordance with procedures Staff determines will most expeditiously further the purpose of the conference. A conference will be convened only after actual notice of the time, place and nature of the conference is provided to the parties. All parties may attend the conference. However, if a party wishes to present confidential information at the conference, Staff may exclude the other parties from that part of the conference when the confidential information is presented.

18 C.F.R. § 385.1112 Requests for confidential treatment (Rule 1112).

(a) If a person filing a document under this subpart claims that some or all of the information contained in a document is exempt from the mandatory disclosure requirements of the Freedom of Information Act, or is otherwise exempt by law from public disclosure, that person may request confidential treatment of such information. At the time request is made for confidential treatment, the person must submit a copy of the document which contains the confidential information and two copies of the document which exclude the information for which confidential treatment is requested. The request for confidential treatment must describe the information deleted and specify the grounds for the claim for confidential treatment. The service requirements of Rule 2010 (service) are deemed satisfied if a copy of the document with the confidential information deleted is served. (b) If a determination to disclose the information is made under part 388 (public information and requests), the person who has requested confidential treatment will be given notice thereof and will be afforded no less than 10 days to respond to such determination before the information is disclosed.

18 C.F.R. § 385.1113 Interim relief (Rule 1113).

(a) The petitioner may at any time file a request for interim relief in a proceeding under this subpart, setting forth the legal and factual basis for the request. Service of such request must comply with the service requirements set forth in Rule 1104(b) (initial petition of adjustment request) and must be made on each person described in such rule as well as on any other party to the proceeding. (b) The grounds for granting interim relief are: (1)(i) A showing that irreparable injury will result in the event the interim relief is denied; and (ii) A showing that denial of the interim relief requested will result in a more immediate special hardship or inequity to the person requesting the interim relief than the consequences that would result to other persons if the interim relief were granted; or (2) A showing that it will be in the public interest to grant the interim relief. (c) A party may within 10 days after the filing of the request for interim relief file a reply to the request for interim relief. (d) Staff may request a written statement of the views of a party regarding whether the interim relief should be granted and may convene an expedited conference on the request for interim relief. (e) If Staff has not granted the request for interim relief within 30 days after it is filed, the request is denied. (f)(1) Subject to paragraph (f)(2) of this section, Staff will issue an order granting or denying the request for interim relief and will notify the parties. Any grant of interim relief is subject to further modification in the order issued under Rule 1109 (orders). (2) The Commission may, on its own motion, at any time revoke, modify, rescind, stay or take any other appropriate action concerning the order granting interim relief.

18 C.F.R. § 385.1114 Motions (Rule 1114).

A party may file a motion at any time. Motions must set forth the ruling or relief requested and must state the grounds therefor and the statutory or other authority relied upon. Staff will rule on all motions.

18 C.F.R. § 385.1115 Procedural rulings (Rule 1115).

Staff may make any procedural rule or provide any procedural relief.

18 C.F.R. § 385.1116 Appeals (Rule 1116).

All actions under this subpart are taken by Staff, except with respect to requests for public information under part 388. Except as provided in Rule 1110 (review of initial adjustment decision) of this section, there are no appeals to the Commission from Staff action taken under this section.

18 C.F.R. § 385.1117 Petition for adjustment treated as request for interpretation (Rule 1117).

(a) Staff may, if appropriate, treat a petition filed under Rule 1103 (petition for adjustment) as a request for an interpretation under section 502(c) of the NGPA, or rule or order issued under that Act. (b) If the Staff exercises its discretion under paragraph (a) of this section to treat a petition for adjustment as a request for an interpretation, then: (1) Staff will notify the parties to the proceeding that the petition is being treated as a request for an interpretation under Rule 1901; and (2) The time limits in this section are stayed pending issuance of the interpretation. (c) After the interpretation is issued, if the petitioner wishes to reinstate the adjustment proceeding, the petitioner may do so by notifying the Commission in writing that the petition should be reinstated.

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