385.1110—Review of initial decision and order for adjustment (Rule 1110).
(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:
(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.
(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.
Code of Federal Regulations
For purposes of this subpart:
(i)
Including exceptions, exemptions, modification, and recisions 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);
(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.
A person commences a proceeding for an adjustment by filing a petition for adjustment with the Commission.
(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.
(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.
Code of Federal Regulations
(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.
(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).
(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.
(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).
Code of Federal Regulations
(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:
(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.
Code of Federal Regulations
(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.
(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:
(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.