FR 2021-02729

The document titled "Records Governing Off-the-Record Communications; Public Notice," published by the Federal Energy Regulatory Commission (FERC) and the Department of Energy, outlines the procedures related to handling off-the-record communications within legal proceedings. Such communications are those that occur outside of the formal processes but relate to the discussions pertinent to a case. The Commission categorizes these communications into two types: prohibited and exempt.

General Summary

According to the procedures, prohibited communications are not meant to influence the Commission's decision-making process. These communications must still be documented and submitted to the Secretary of the Commission. Generally, they are kept in a separate file from the official decision record. However, if fairness dictates, there is an opportunity for these communications and responses to be included in decision-making. Exempt communications, on the other hand, are usually part of the official decision records unless they involve discussions with a cooperating agency.

Significant Issues and Concerns

There are some notable issues that arise from this document. First and foremost, details on the specific off-the-record communications received are not provided. This lack of transparency makes it challenging for outsiders to assess the relevance or impact of these communications on proceedings.

Moreover, the process by which the Commission determines whether a prohibited communication should impact decision-making is not clearly explained. This opacity could lead to perceptions of bias or misjudgment. The criteria for what constitutes fairness in such decisions are also absent, creating room for subjective interpretation. Lastly, multiple references to specific Code of Federal Regulations (CFR) sections might be confusing for readers not familiar with these legal texts, as no summaries or explanations of these sections are included.

Impact on the Public

For the broader public, this notice may seem somewhat opaque due to its technical nature and lack of concrete examples or explanations. People interested in the transparency of regulatory processes may find it troubling that there is a potential for non-public communications to influence proceedings, albeit in limited cases. The procedures are crucial as they aim to preserve fairness and integrity in decision-making processes. However, ensuring these communications do not unfairly bias outcomes is a matter of public interest and trust.

Impact on Specific Stakeholders

For stakeholders directly involved in FERC proceedings, such as companies within the energy sector, environmental agencies, or advocacy groups, understanding these procedures is essential. There is a dual-edged impact. On one side, it provides clarity about their rights to know and respond to off-the-record communications, fostering a participative approach to regulatory processes. On the other, the vagueness concerning the inclusion of prohibited communications in decisional records might cause anxiety over fair treatment in proceedings.

Overall, while the procedures intend to create a balance between necessary confidentiality and public accountability, the lack of specificity and transparency could potentially undermine confidence among parties engaged in energy-related legal procedures. Transparent criteria and clearer communication about these processes would likely be beneficial both for public understanding and stakeholder trust.