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Complaints Put on Fast Track at FERC

Complaints Put on Fast Track at FERC

FERC has unveiled its long-awaited final rule on expedited complaint procedures, the focus of which is a "very innovative" fast-track process for resolving "highly time-sensitive" industry disputes within 20 days after a response is filed. This compares to FERC's target of up to 60 days for most standard complaints. The Commission voted out the order notationally after its bi-weekly meeting last Wednesday.

The fast-track procedures aren't meant to replace the standard procedures for resolving complaints at the Commission, but rather are intended to complement them, according to FERC. To be eligible for the fast track, a complainant must make "a highly credible claim and a persuasive showing that the standard complaint process will not provide meaningful relief," Commissioner William Massey said [RM98-13].

If such a showing is made, the Commission will shorten the timeframe for a party to respond to the complaint to a few days and will issue a procedural order (on how it intends to process the complaint) "if necessary within two to three days after [an] answer" to the complaint is submitted, he noted. And it will seek to rule on the merits of a dispute within 20 days from the date of the answer to the complaint. "I would have preferred that we make the fast track even faster by delegating to staff certain process decisions, but the majority did not agree." Still, Massey said he believes the changes will make the complaint process "more user friendly," giving parties a quicker turnaround on their disputes.

The Commission noted the fast-track process will be used in "only limited circumstances" due to the "extraordinarily compressed time schedule" that will be required. It encouraged potential complainants to seek fast-track processing "sparingly and only in the most unusual cases that demand accelerated treatment." An example of a case that would merit such quick processing would be one where a shipper alleges that it has been denied access to a pipeline under the Natural Gas Act, according to FERC. In such a case, the complainant would be required to provide a "satisfactory explanation" as to whether alternative dispute resolution (ADR) was pursued prior to filing the complaint. It further said that a ruling on a request for preliminary relief - such as a stay - would be "almost immediate" in such cases. But it noted that a request for such relief also could be made in a standard complaint.

The final rule did set target timeframes for the Commission to resolve complaints more expeditiously, but it stopped short of imposing specific, strict deadlines for such action. The latter was supported by the Pipeline Coalition Group, which included producers, LDCs and others. FERC believes that having target timeframes, rather than strict deadlines, will give it "the flexibility to adjust when necessary complicated issues and unforeseen circumstances."

The rule appears to be a composite of the proposals of gas producers, pipelines and LDCs, as well as electric utilities. The new, expedited complaint process will apply to all FERC-regulated industries - gas, electric, hydro and oil.

In addition to the fast-track process, the final rule codifies FERC's current Enforcement Hotline procedures, brings its current ADR rules into conformance with the Administrative Dispute Resolution Act of 1996, offers ADR as one of the available paths for handling complaints, requires responses to standard complaints (not eligible for fast track) to be filed in 20 days, specifies in detail the information that must be included in complaints, and establishes a simplified procedure for resolving complaints that involve less than $100,000 and have minimal impact on other customers. Under the final rule, complaints would have to satisfy 10 informational requirements before being accepted at FERC, Commissioner Linda Breathitt said. Also, FERC will not accept answers to complaints that "simply admit or deny wrongdoing," she noted, but rather will require full documentation.

"We're much clearer than we ever have been about what the criteria are for accepting [a] complaint, [and] how quickly responses need to be filed. We make available various modes of resolution, including an innovative fasttrack process...There are a lot of new approaches in here - the use of ADR, real-time Commission decisions, expeditious hearing orders, [and] interim relief," said Chairman James Hoecker.

He noted FERC codified its Enforcement Hotline, which has been around for a decade, to advertise its availability. "We want to make sure that people know that it's there, so we put it in the regs." The Commission also set up an E-mail address for the Hotline - hotline@ferc.fed.us - to encourage its use in dispute resolution. This is in addition to the phone number: (877) 303-4340. "We're plugged in and ready to roll," Hoecker said, adding the Hotline has been an effective alternative to filing formal complaints.

Both producers and pipelines reacted positively to the final complaint rule. Producers especially favored the fast-track procedures, codifying the Hotline, and the Commission's concept of providing interim relief to complainants, said Philip Budzik of the Natural Gas Supply Association.

"It's really encouraging" that the Commission has issued a final rule because "a lot of other things depend on an expedited complaint process," such as negotiated terms and conditions, said Lorraine Cross, senior vice president of the Interstate Natural Gas Association of America (INGAA). More specifically, she was encouraged the Commission codified its Hotline procedures - a position that the pipelines supported. As for the fast-track process, she said she "wasn't opposed to the concept," but acknowledged "I don't know how it works" yet. The use of ADR to settle complaints sounded like a voluntary option for companies, Cross said, adding "why not give it a shot?"

Susan Parker

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ISSN © 2577-9877 | ISSN © 1532-1266
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