Commissioner James Danly Statement
June 30, 2022
Docket No. IS22-744-000
I dissent from today’s order because I disagree with the approach taken by the Commission. I would have preferred that the Commission dismiss the late protest and accept the tariff filing without setting it for hearing. The Commission has procedural rules for a reason, whether for granting late interventions, or as in the instant case, a deadline to file protests. I recognize that the Commission can always waive its regulations. And it certainly can waive the regulation at issue in this proceeding, which provides that “[a]ny protest pursuant to section 15(7) of the Interstate Commerce Act must be filed not later than 15 days after the filing of a tariff publication.”[1] I disagree, however, with doing so in this instance.
Mex Gas Supply S.L. (MGS) states that it “became aware of [Rio Grande Pipeline Company LLC’s (Rio Grande)] tariff filing in mid-June,”[2] but nonetheless waited approximately two weeks before filing its motion to intervene out-of-time and protest on nearly the last possible day before Rio Grande’s filing would have gone into effect by operation of law. MGS claims that the delay was caused by its effort to “resolve its concerns” so as to avoid having to file in this proceeding.[3] That desire, while perhaps laudable, is not inconsistent with also filing a motion to intervene and protest and certainly does not, in my view, justify waiting until the last minute to file, with the attendant disruption that it has caused to our proceeding.[4]
In my view, the Commission should have simply dismissed the protest as untimely and declined to reach a decision regarding the merits of the protest.[5] MGS could have then, if it had wished, filed a complaint with the Commission. That approach would better ensure the effectuation of the Commission’s procedural rules.
For these reasons, I respectfully dissent.
[1] 18 C.F.R. § 343.3(a). I acknowledge that our regulations also provide that “[i]f a filing is protested, before the effective date of the tariff publication or within 30 days of the tariff filing, whichever is later, the Commission will determine whether to suspend the tariff and initiate a formal investigation.” Id. § 343.3(c). I consider it necessary, however, to read this provision with the specific language of the 15-day protest deadline established in 18 C.F.R. § 343.3(a) because not doing so would render that deadline to be meaningless.
[2] Mex Gas Supply, S.L. June 28, 2022 Motion for Leave to Intervene Out-of-Time and Protest at 3. Perhaps this could be alleviated in future proceedings by the Commission noticing all oil tariff filings in the Federal Register.
[3] Id.
[4] Under Rule 214(d)(1)(ii), the Commission may consider whether “[a]ny disruption of the proceeding might result” from granting an out-of-time motion for intervention. 18 C.F.R. 385.214(d)(1)(ii).
[5] I pause to note that I appreciate the value of preserving the rights that my colleagues point to in their joint separate statement but, on balance, I believe that the remedial mechanisms that exist in the Interstate Commerce Act are sufficient to vindicate the parties’ rights. See Rio Grande Pipeline Co. LLC, 179 FERC ¶ 61,236 (2022) (Christie & Phillips, Comm’rs, concurring at P 3) (“agree[ing] that the most judicious option, given the facts currently presented, is to take the course the Commission takes here, which preserves everyone’s rights as much as possible”).