April 30, 2003
The Honorable Patrick Henry Wood III Dear Chairman Wood: On April 28, 2003, the Commission released a "White Paper" concerning the "Standard Market Design" rule it proposed on July 31, 2002 (Notice of Proposed Rulemaking, Docket No. RM01-12-000). I recognize that the Commission may implement its authorities under the Federal Power Act through a variety of methods, including policy statements, orders, and rulemakings under the Administrative Procedures Act. The effect of the White Paper, however, on the proposal contained in Docket No. RM01-12-000 is unclear. Since the standard market design proposal is of interest to numerous parties, it is important that the public understand not only the policy choices set forth on the White Paper, but also its procedural effect on matters such as the right to file comments and the right to seek judicial review of the Commission’s actions. In order to help clarify these matters, I request that you provide a response to the attached questions by Thursday, May 8, 2003. Should you have any questions about this matter, please contact me, or have your staff contact Sue Sheridan, Committee on Energy and Commerce Democratic staff at 202-226-3400. Sincerely,
Attachment QUESTIONS
FROM THE HONORABLE JOHN D. DINGELL 1. Does the White Paper represent the views of the Chairman and other Commissioners, or of the Commission staff? How does the process by which the White Paper was approved compare to the process by which the Commission issued the proposed standard market design rule? 2. What status does the White Paper have under the Administrative Procedures Act? Is it intended to be the equivalent of a new notice of proposed rulemaking? 3. How long does the public have to comment on the White Paper? Will the Commission make such comments part of the official record of the rulemaking? 4. Are the changes to the proposed rule which are announced by the White Paper final? If so, does that mean the Commission would not reconsider these decisions under any circumstances, regardless of any public comments filed in response to the White Paper? 5. Are the changes to the proposed rule which the White Paper announced subject to judicial review? If so, could a party seek review of such changes prior to the Commission’s issuance of a final rule? 6. The White Paper states that the Commission will consider "any pending electricity legislation being considered in the U.S. Congress, prior to issuing a Final Rule." The meaning and significance of "pending legislation" appears ambiguous. For example, during the House consideration of electricity legislation, the provisions in the Committee’s initial Committee Print were modified substantially in both Subcommittee and Full Committee. Provisions introduced in the Senate may change as well, and if differences exist with the House, it will face an unsettled future in Conference. How will you identify "pending legislation" in your consideration? Will it include all introduced bills, such as H.R. 1276, which I sponsored with a number of other Members of the House, or just certain bills? How will you consider legislation which differs in the House and Senate? Do you intend to incorporate such legislation into the public record of the rulemaking, to seek comments on the legislation, and to make it part of the record subject to judicial review?
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