Scheme Nickname:
Formal ALJ adjudication
Formal adjudication scheme for proceedings (or parts of proceedings) for which the Commission initiates a hearing under Subpart E (18 CFR pt. 385, subpt. E). May relate to most matters within FERC's jurisdiction, including: (a) regulation of interstate transmission of electricity, natural gas, or oil; (b) review of proposals to build liquefied natural gas (LNG) terminals or interstate natural gas pipelines; (c) licensing of hydropower projects; or (d) FERC enforcement action for civil penalties. Typical matters include contested rates, tariffs, or complaints filed by members of the public. (Under FERC rules, a complaint may be filed by "any person" seeking Commission action against any other person for alleged violations of law "or any other alleged wrong over which the Commission may have jurisdiction.")
Comments/Notes on Adjudication Structure:
The Commission, for most types of "proceedings" (which is how FERC refers to a case), has the discretion to retain a matter and issue a final decision (based, except on rare occasions, solely on the written record or, instead, refer some/all of a proceeding to (a) the Office of ALJ for evidentiary hearing, or (b) a FERC ALJ acting as a settlement judge. (See 18 CFR pt. 385, subpt. F). Anecdotally, FERC has told us the Commission -- as a full Commission -- has only presided over an evidentiary hearing once in the past 7-8 years.
Types of Adjudication:
Type A
Resources & Articles:
Description and schematics for FERC processes: http://www.ferc.gov/help/processes.asp
FERC ADR main web page: http://www.ferc.gov/legal/adr.asp
FERC ADR Brochure: http://www.ferc.gov/legal/adr/brochure.pdf
FERC 2014 Strategic Plan (emphasizing ADR): http://www.ferc.gov/about/strat-docs/FY-2014-FY-2018-strat-plan.pdf
Complaint Fast Track Procedures: https://www.ferc.gov/legal/complaints/form-comp/fast-track.asp
FERC Procedural Time Standards for Hearing Cases: http://www.ferc.gov/legal/admin-lit/time-sum.asp
FERC Discovery Time Standards: http://www.ferc.gov/legal/admin-lit/time-dis.asp
Distinctive Features:
FERC has a robust ADR program, using both settlement judges (i.e., FERC ALJs) and third-party neutrals. FERC's 2014 Strategic Plan expressly makes promotion of settlements (through negotiation, settlement judges, or other ADR tools) a strategic goal. As a recent law review article noted: "FERC has found that settlements are essential 'to the orderly and expeditions conduct' of its business as it 'could not possibly cope with the flood of business engendered by its jurisdictional statutes if the outcome of a substantial proportion of that business were not the result of voluntary settlements." (32 Energy L. J. 433, 454 n. 10 (2011), citing 44 Fed. Reg. 34,936, 34937 (1979)). The Commission (or presiding ALJ) may either direct parties to attempt settlement through use of a settlement judge, or parties may request ADR via motion.
Interestingly, when parties request ADR, FERC regulations specify that the decisional authority should generally not authorize ADR when a definitive resolution is required for precedential value, matter bears on significant question of public policy, matter significantly affects persons who are not parties, or a "full public record" is important. (18 CFR 385.604(a))
Other Comments:
FERC's procedural rules for filing, discovery, and hearings set forth in Part 385 are highly formal, and are reminiscent of FRCP for federal district courts, with the exception of evidentiary matters. FERC's evidentiary rule provides for exclusion of "irrelevant, immaterial, or unduly repetitious material." (18 CFR 385.509(a)) Otherwise, the presiding officer(s) "may" also exclude other evidence which he/she determines "is not of the kind which would affect reasonable and fair-minded persons in the conduct of their daily affairs. (18 CFR 385.509(a))
FERC has differentiated case management (3 tracks) for non-complaint cases set for hearing, and recently adopted (in 2010) time standards establishing default processing and discovery time frames; ALJs have discretion to adjust as required to meet the needs of a case. Complaints set for hearing also have "fast track" or "regular" processing time frames. See web addresses noted above for specific time standards. There are also simplified procedures for complaints involving "small controversies."
Verified by Agency:
Verified
Is this a Major Adjudication:
Yes