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The FERC Regulatory Process

The FERC Regulatory Process. Dennis H. Melvin, Esq. Director – Legal Division (OAL) Federal Energy Regulatory Commission Washington, DC. Question. How does FERC decide what a utility can charge and what goes into a tariff?. How Does FERC Regulate?. Industry-wide Decisions

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The FERC Regulatory Process

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  1. The FERC Regulatory Process Dennis H. Melvin, Esq. Director – Legal Division (OAL) Federal Energy Regulatory Commission Washington, DC

  2. Question • How does FERC decide what a utility can charge and what goes into a tariff? FERC Regulatory Process

  3. How Does FERC Regulate? • Industry-wide Decisions • Notice of Inquiry (NOI) • Notice of Proposed Rulemaking (NOPR) • Final RuleorPolicy Statement • Company Specific Decisions • Applications(rate increase, change in a term or condition of a contract, etc.) or complaints filed by utilities, customers, interested parties or state commissions FERC Regulatory Process

  4. Company Specific Decisions • Application or complaint filed • Filing is publicly noticed • Staff analysis and recommendation to the Commission (tight deadlines) FERC Regulatory Process

  5. Company Specific Decisions (con’t) • Commission action • Decide merits of case without further procedures • Hold a technical conference or call for more written information • Hold trial-type hearing before an Administrative Law Judge FERC Regulatory Process

  6. OAL • Represents the public interest • Only unbiased party • The results we seek: • Lowest rates consistent with a well-run utility • Non-discriminatory treatment for all customers • Opportunity for utility to earn a fair return and compete FERC Regulatory Process

  7. Settlements Are Important • Prevents the legal system from being overloaded • Settlement allows for faster resolution of disputes • Parties are usually happier with a settlement FERC Regulatory Process

  8. Adjudication Milestones • 1. Judge assigned and Procedural Track set • 2. Prehearing/Discovery • 3. Prepared Testimony • 4. Pre Trial Brief • 5. Hearing • 6. Initial and Reply Briefs • 7. Initial Decision • 8. Exceptions Briefs • 9. Commission Order & Rehearing FERC Regulatory Process

  9. Milestone One • The Chief Judge will: • Assign an Administrative Law Judge to the case • May indicate a deadline for decision FERC Regulatory Process

  10. Milestone Two • Prehearing Conference • Conducted by Presiding Judge assigned • Scope and timetable to be determined • Settlement urged, Trial Staff available • Discovery • Discovery concerns raised with ALJ • Procedures established • Wide range of options FERC Regulatory Process

  11. Discovery • Information regularly filed with the agency • Written questions and answers • Subpoenas available • Necessary if non-party data required • Nationwide reach • Depositions, Inspections, Audits FERC Regulatory Process

  12. Protective Orders • Intent is to safeguard confidential information • Order describes how confidential data is to be handled • Issued by the Judge • Everyone must sign and agree to its terms FERC Regulatory Process

  13. Milestone Three • Prepared Testimony • Prefiled before the hearing • May contain confidential information and need special handling • May be electronically filed • Several rounds FERC Regulatory Process

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  16. Milestone Four • Pre Trial Brief • Includes the theory of the case • Evidence to be presented • Summary of witnesses’ testimony • Description of exhibits • Legal foundation and precedent • Weaknesses in presentations of others FERC Regulatory Process

  17. Milestone Five • Hearing • Can last one day to many months • Witnesses sworn, direct testimony and exhibits admitted, then cross-examination • Confidential testimony requires special procedures • Written transcript made • Judge ultimately decides admissibility of evidence FERC Regulatory Process

  18. A Hearing Room at the FERC FERC Regulatory Process

  19. Another Hearing Room FERC Regulatory Process

  20. Milestone Six • Initial and Reply Briefs • Dates set by Presiding ALJ • Simultaneous unless ordered otherwise • Must not discuss evidence outside of the record FERC Regulatory Process

  21. Milestone Seven • Initial Decision • Usually summarizes evidence and arguments • Published in FERC Reports • Certified to Commission with the record • Always subject to Commission review FERC Regulatory Process

  22. Milestone Eight • Briefs On and Opposing Exceptions • 30 days after ID, 20 days thereafter • Must be less than 100 pages FERC Regulatory Process

  23. Milestone Nine • Commission Order & Rehearing • No deadlines on Commission action on Judge’s ruling • Published in FERC Reports • Rehearing request must be filed within 30 days • Further appeals can be made to the court system FERC Regulatory Process

  24. Thank you for your attention ! • Dennis H. Melvin, Esq. • Director, Legal Division • Office of Administrative Litigation • Federal Energy Regulatory Commission • 888 First Street, NE • Washington, DC 20426 • (202) 502-8042 : Phone • (202) 208-0188 : FAX • dennis.melvin@ferc.gov FERC Regulatory Process

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