Participation and Intervention before the FERC October 2007

NARUC Accounting and Finance Subcommittee 2 Outline How Does FERC Regulate –Company specific –Industry wide Participation in the Process –Intervention –Protests –Comments Recent Developments

October 2007 NARUC Accounting and Finance Subcommittee 3 How Does FERC Regulate? Company Specific Decisions –Applications (rate increase, change in a term or condition of a contract, etc.) or complaints filed by utilities, customers, project sponsors, interested parties or state commissions Industry-wide Decisions –Notice of Inquiry (NOI) –Notice of Proposed Rulemaking (NOPR) –Final Rule or Policy Statement

October 2007 NARUC Accounting and Finance Subcommittee 4 Company Specific Decisions Application or complaint filed with the Commission Filing is publicly noticed Comments and Interventions are received and considered Staff analysis and recommendation to the Commission (tight deadlines)

October 2007 NARUC Accounting and Finance Subcommittee 5 Commission options –Decide merits of case without further procedures –Hold trial-type hearing before an Administrative Law Judge –Hold a “paper” hearing –Hold a technical conference –Try a form of ADR Mediation, Settlement Judge, DRS, Mini Trial, Other –Minor matters can be delegated to a staff Office Director or to the Chief Accountant for decision Commission issues its order Company Specific Decisions (con’t)

October 2007 NARUC Accounting and Finance Subcommittee 6 Getting it set for Hearing Commission may decide to set the application or the complaint for a formal “on the record” hearing. Usually because it involves “contested issues of material fact” or “factually intensive disputed issues not easily decided by a paper hearing” particularly where the protests are intense!

October 2007 NARUC Accounting and Finance Subcommittee 7 But, remember…. Commission must set matter for hearing –You have a right to be heard but not necessarily a right to an “on the record” (trial-type) hearing –You can ask for an “on the record” hearing –You should state why such a hearing is necessary - ie. need for cross examination, factually intensive issue, subpoenas required, ADR failed, etc.

October 2007 NARUC Accounting and Finance Subcommittee 8 General Filing Requirements § (18 CFR § ) requires an original and 14 copies for: –Motions –Protests –Comments –Interventions –Statements of Position

October 2007 NARUC Accounting and Finance Subcommittee 9 E-Filing § (a) (iii) (18 CFR § ) permits (encourages) e-filing of: –Motions –Protests –Comments –Interventions –Statements of Position –See FERC Order No. 619 and Rule 2003(c

October 2007 NARUC Accounting and Finance Subcommittee 10 Protest or Intervention? Protest Rule 208, really 211 Comments received to determine action by Commission Not a “party” Protest not part of the record if set for hearing Intervention Rule 214 If timely and not objected to, becomes a “party” Intervenor is a party and the intervention becomes part of the record

October 2007 NARUC Accounting and Finance Subcommittee 11 Motion to Intervene An entity which files a timely, unopposed motion to intervene, automatically becomes a party to the proceeding (Rule 214 c) An entity which files an untimely motion to intervene must show good cause why the time limitation should be waived (Rule 214(b) 3)

October 2007 NARUC Accounting and Finance Subcommittee 12 Late Motions to Intervene Rule 214 (d) Was there good cause for failing to file within the time prescribed? How disruptive to the proceeding will the grant of the late intervention be? Is the movant’s interest addressed by other parties? What is the prejudice to or additional burden upon the existing parties? Does the motion conform to the requirements of Rule 214(b)?

October 2007 NARUC Accounting and Finance Subcommittee 13 Contents of a Motion to Intervene - Rule 214 (b) Must state the position of the movant and the basis in law and fact for that position Must state the movant’s interest in the proceeding Must show movant has or represents an interest which may be directly affected by the outcome of the proceeding Must show movant’s participation is in the public interest

October 2007 NARUC Accounting and Finance Subcommittee 14 Notice of Intervention Rule 214 (a) Secretary of Energy Any State Commission The Advisory Council on Historic Preservation Department of Commerce Department of Agriculture Department of Interior Any state fish and wildlife, water quality certification, or water rights agency, or Indian tribe with authority to issue a water quality certification

October 2007 NARUC Accounting and Finance Subcommittee 15 Recent Developments In American Electric Power Services Corp., Docket No. QM the Commission spoke to participation by membership organizations: –Possible precedential effect of a Commission determination normally is not, by itself, a basis for intervention –Membership organizations must show they have a member affected by the determination –Membership organizations must raise factual and legal arguments specific to the individual proceeding

October 2007 NARUC Accounting and Finance Subcommittee 16 Thank you for your attention ! William J. Froehlich, Esq. »Special Counsel, Office of Enforcement »Federal Energy Regulatory Commission »888 First Street, NE »Washington, DC »(202) : Phone »(202) : FAX

October 2007 NARUC Accounting and Finance Subcommittee 17 Appendixes Copy of 18 CFR § Guide to e-filing Copy of American Electric Power “Order Granting Application to Terminate Purchase Obligation” 120 FERC ¶ 61,052 (2007) –See paragraphs 9 through 12