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More FERC Investigation Risks

New transparency practice turns confidentiality on its head.

Fortnightly Magazine - March 2011

If a formal investigation appears appropriate, staff will so recommend to FERC. 18 C.F.R. § 1b.6, Preliminary investigations .

5. Subject to exceptions when FERC directs or authorizes public disclosure, as done in FERC’s order here, or when information or documents are placed in the public record of an adjudicative proceeding, or when the Freedom of Information Act requires disclosure. 18 C.F.R. § 1b.9, Confidentiality of investigations .

6. In a Jan. 28, 2011, statement, a commissioner dissenting from the order on rehearing and clarification instead would have modified the Notice mechanism to mask the subject’s identity, protecting its reputation until FERC conducts its own independent review (pages 1-2, 7-8). FERC also declares its two orders to be discretionary, unreviewable agency policy statements, and pronouncements of agency organization, procedure, or practice. 134 FERC ¶ 61,054, at PP 11-13. The dissenting commissioner instead would have sought public comment under the Administrative Procedure Act (pages 2-6).

7. Any person may file a complaint seeking FERC action against any other person alleged to be in contravention or violation of any statute, rule, order, or other law administered by FERC, or for any other alleged wrong over which FERC may have jurisdiction. 18 C.F.R. § 385.206(a), Complaints, General rule .

8. 134 FERC ¶ 61,054, at P 15.