C.F.R. » Title 18 » CHAPTER I—FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY › SUBCHAPTER X—PROCEDURAL RULES › PART 385—RULES OF PRACTICE AND PROCEDURE › Subpart B—Pleadings, Tariff and Rate Filings, Notices of Tariff or Rate Examination, Orders To Show Cause, Intervention, and Summary Disposition

18 C.F.R. § 385.213

Answers (Rule 213)

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(a) Required or permitted. (1) Any respondent to a complaint or order to show cause must make an answer, unless the Commission orders otherwise.

(2) An answer may not be made to a protest, an answer, a motion for oral argument, or a request for rehearing, unless otherwise ordered by the decisional authority. A presiding officer may prohibit an answer to a motion for interlocutory appeal. If an answer is not otherwise permitted under this paragraph, no responsive pleading may be made.

(3) An answer may be made to any pleading, if not prohibited under paragraph (a)(2) of this section.

(4) An answer to a notice of tariff or rate examination must be made in accordance with the provisions of such notice.

(b) Written or oral answers. Any answer must be in writing, except that the presiding officer may permit an oral answer to a motion made on the record during a hearing conducted under subpart E or during a conference.

(c) Contents. (1) An answer must contain a clear and concise statement of:

(i) Any disputed factual allegations; and

(ii) Any law upon which the answer relies.

(2) When an answer is made in response to a complaint, an order to show cause, or an amendment to such pleading, the answerer must, to the extent practicable:

(i) Admit or deny, specifically and in detail, each material allegation of the pleading answered; and

(ii) Set forth every defense relied on.

(3) General denials of facts referred to in any order to show cause, unsupported by the specific facts upon which the respondent relies, do not comply with paragraph (a)(1) of this section and may be a basis for summary disposition under Rule 217, unless otherwise required by statute.

(4) An answer to a complaint must include documents that support the facts in the answer in possession of, or otherwise attainable by, the respondent, including, but not limited to, contracts and affidavits. An answer is also required to describe the formal or consensual process it proposes for resolving the complaint.

(5) When submitting with its answer any request for privileged treatment of documents and information in accordance with this chapter, a respondent must provide a public version of its answer without the information for which privileged treatment is claimed and its proposed form of protective agreement to each entity that has either been served pursuant to § 385.206(c) or whose name is on the official service list for the proceeding compiled by the Secretary.

(d) Time limitations. (1) Any answer to a motion or to an amendment to a motion must be made within 15 days after the motion or amendment is filed, except as described below or unless otherwise ordered.

(i) If a motion requests an extension of time or a shortened time period for action, then answers to the motion to extend or shorten the time period shall be made within 5 days after the motion is filed, unless otherwise ordered.

(ii) [Reserved]

(2) Any answer to a pleading or amendment to a pleading, other than a complaint or an answer to a motion under paragraph (d)(1) of this section, must be made:

(i) If notice of the pleading or amendment is published in the Federal Register, not later than 30 days after such publication, unless otherwise ordered; or

(ii) If notice of the pleading or amendment is not published in the Federal Register, not later than 30 days after the filing of the pleading or amendment, unless otherwise ordered.

(e) Failure to answer. (1) Any person failing to answer a complaint may be considered in default, and all relevant facts stated in such complaint may be deemed admitted.

(2) Failure to answer an order to show cause will be treated as a general denial to which paragraph (c)(3) of this section applies.

[Order 225, 47 FR 19022, May 3, 1982; 48 FR 786, Jan. 7, 1983, as amended by Order 376, 49 FR 21705, May 23, 1984; Order 602, 64 FR 17099, Apr. 8, 1999; Order 602-A, 64 FR 43608, Aug. 11, 1999; Order 769, 77 FR 65476, Oct. 29, 2012]
Notes of Decisions
Cited in 10 cases (1 in the last 5 years), 1986–2023 · leading case: Fed. Energy Regulatory Comm'n v. Silkman, 177 F. Supp. 3d 683 (D. Mass. 2016).
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Fed. Energy Regulatory Comm'n v. Silkman, 177 F. Supp. 3d 683 (D. Mass. 2016). · cites it 3× “” 18 C.F.R. § 385.213 (c)(2). This language is enough.”
Portland Gen. Elec. Co. v. Fed. Energy Regulatory Comm'n, 854 F.3d 692 (D.C. Cir. 2017). “at P 48 (citing 18 C.F.R. § 385.213 (a)(2) (“An answer may not be made to .”
F.E.R.C. v. Silkman, 359 F. Supp. 3d 66 (D. Me. 2019). · cites it 3× “" 18 C.F.R. § 385.213 (c)(2). Requiring a Respondent to anticipate and raise defenses that might only have merit at some future date and which are dependent upon various contingencies - some of which are controlled by the agency itself - is not "practicable.”
Cent. Maine Power Co. v. Fed. Energy Regulatory Comm'n, 252 F.3d 34 (1st Cir. 2001). “Thus, under the particular circumstances of this case, FERC’s general rule against answers to protests, 18 C.F.R. § 385.213 (a)(2) (2000), did not prevent buying utilities from presenting the principal arguments against the $8.”
Consol. Oil & Gas, Inc. v. Fed. Energy Regulatory Comm'n, S. Union Gathering Co., Intervenor, 806 F.2d 275 (D.C. Cir. 1986). “The Commission admits for purposes of argument that the 30 day requirement of 18 C.F.R. § 385.213 (d)(2) (1985) applies in this case, FERC Br.”
Town of Norwood, Massachusetts v. Fed. Energy Regulatory Comm'n, New England Power Co., Intervenor, 217 F.3d 24 (1st Cir. 2000). “18 C.F.R. § 385.213 (a)(2) (1999). Perhaps in some situations it might be improper for an agency effectively to deny the petitioner the right to respond to assertions raised for the first time in an answering document, although refusal to allow a formal “reply” is not…”
Fed. Energy Regulatory Comm'n v. Barclays Bank PLC, 247 F. Supp. 3d 1118 (E.D. Cal. 2017). “18 C.F.R. § 385.213 (c). However, it does not state or otherwise indicate that Defendants would be limited to those statements in the district court proceeding.”
Kourouma v. Fed. Energy Regulatory Comm'n, 723 F.3d 274 (D.C. Cir. 2013). “But FERC Rule of Practice and Procedure 213 prohibits re *280 spondents from submitting additional answers, see 18 C.F.R. § 385.213 (a)(2), and it was no abuse of discretion to adhere to the rule.”
Ferc v. Vitol Inc., 79 F.4th 1059 (9th Cir. 2023). · cites it 2× “See 18 C.F.R. § 385.213 (procedures governing evidence and filings); id.”
Norwood, MA v. FERC, 202 F.3d 392 (1st Cir. 2000). “18 C.F.R. § 385.213 (a)(2) (1999). Perhaps in some situations it might be improper for an agency effectively to deny the petitioner the right to respond to assertions raised for the first time in an answering document, although refusal to allow a formal "reply" is not…”
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