FR 2025-07242

The Federal Energy Regulatory Commission (FERC), part of the U.S. Energy Department, has issued a notice concerning off-the-record communications, which are interactions that occur outside the formal proceedings. As per existing regulations, these communications must be reported to the Commission to ensure transparency and fairness. The notice delineates how such communications are categorized and managed within the decision-making process.

General Summary

The notice outlines the procedures related to different types of off-the-record communications—prohibited and exempt. According to these procedures, communications that occur off-the-record must be submitted to the Secretary of the Commission. Such communications can be considered during the decision-making process depending on their classification and context.

Prohibited communications are not typically considered in the Commission's final decisions, except in specific circumstances where they may influence fairness. Exempt communications, however, are included in the decision record unless they pertain to a cooperating agency defined under certain regulatory conditions.

The notice provides information on how the public can access these communications through FERC's online portal, offering a channel for increased transparency and public oversight.

Significant Issues and Concerns

One key issue with the document is the lack of clarity regarding the criteria that classify communications as prohibited or exempt. Without a clear explanation, stakeholders could face confusion on what types of communication are permissible and under what context they are deemed suitable for inclusion in decision-making records.

The notice relies heavily on referencing specific legal codes and regulations (e.g., 18 CFR 385.2201(b), 40 CFR 1501.6) without providing plain language explanations. This can alienate those who are not familiar with these complex legal references, creating a barrier to understanding for the general public.

Moreover, the process for determining when a prohibited communication should be entered into the decisional record is not well-articulated. This ambiguity could lead to inconsistent application of rules and potential fairness concerns. Additionally, while the notice provides contact information for assistance, it fails to specify response times or methods, which could frustrate those seeking timely help.

Public and Stakeholder Impact

For the broader public, the document represents an effort by FERC to maintain transparency in regulatory decision-making processes. It provides a mechanism for the public to access off-the-record communications and hold the Commission accountable. However, the document’s reliance on legal jargon may limit its accessibility, potentially reducing public engagement.

Specific stakeholders, such as entities involved in regulated proceedings, legal professionals, and advocacy groups, may be directly impacted by the guidelines set forth in this notice. On the positive side, the documentation of off-the-record communications could lead to more equitable proceedings by ensuring that all facts and contentions are addressed.

Conversely, unclear criteria for communication classifications and their inclusion/exclusion from decision records may result in skepticism among stakeholders regarding the fairness and transparency of the process. Organizations that frequently interact with FERC might find this framework burdensome if their communications inadvertently fall into ambiguous categories.

Overall, while this notice is geared towards ensuring fair regulatory processes, its effectiveness largely depends on the clarity of its guidelines and the accessibility of its language. Increased clarity and simplification could improve public trust and engagement with FERC’s proceedings.