Commonwealth Edison Company; Order Establishing Paper Hearing Procedures and Establishing Trial-Type Hearing and Settlement Judge Procedures
| Published date | 28 February 2024 |
| Record Number | 2024-04055 |
| Citation | 89 FR 14643 |
| Court | Energy Department,Federal Energy Regulatory Commission |
| Section | Notices |
Federal Register, Volume 89 Issue 40 (Wednesday, February 28, 2024)
[Federal Register Volume 89, Number 40 (Wednesday, February 28, 2024)]
[Notices]
[Pages 14643-14646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04055]
[[Page 14643]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. FA21-5-000]
Commonwealth Edison Company; Order Establishing Paper Hearing
Procedures and Establishing Trial-Type Hearing and Settlement Judge
Procedures
1. On August 28, 2023, pursuant to Sec. 41.2 of the Commission's
regulations,\1\ Commonwealth Edison Company (ComEd) filed a request for
Commission review of certain findings and recommendations in the July
27, 2023 order \2\ and accompanying audit report \3\ issued in this
docket by the Director of the Office of Enforcement (Enforcement) under
authority delegated to the Director by Sec. 375.311 of the Commission
regulations.\4\ In accordance with Sec. 41.2 of the Commission's
regulations,\5\ ComEd notified the Commission that it requested review
of two contested issues by means of a shortened paper hearing procedure
and one contested issue by means of a trial-type hearing. ComEd also
requested settlement judge procedures concerning the one contested
issue for which it requested a trial-type hearing.
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\1\ 18 CFR 41.2 (2022).
\2\ Commonwealth Edison Co., Docket No. FA21-5-000 (July 27,
2023) (delegated order) (hereafter, Delegated Order).
\3\ Audit of Commonwealth Edison Company's compliance with its
approved terms, rates, and conditions of its wholesale transmission
formula rate; accounting requirements of the Uniform System of
Accounts Prescribed for Public Utilities and Licensees under 18 CFR
part 101; reporting requirements of the FERC Form No. 1, Annual
Report of Major Electric Utilities, Licensees and Others, under 18
CFR 141.1; and, requirements in Preservation of Records of Public
Utilities and Licensees under 18 CFR part 125, Commission Office of
Enforcement Division of Audits and Accounting (July 27, 2023) (Audit
Report).
\4\ 18 CFR 375.311 (2022).
\5\ 18 CFR 41.2.
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2. In this order, pursuant to Sec. 41.3 of the Commission's
regulations,\6\ we direct the commencement of a paper hearing and
establish paper hearing procedures for two contested issues, as
requested. Pursuant to Sec. 41.7 of the Commission's regulations,\7\
we direct the commencement of a trial-type hearing and establish trial-
type hearing procedures for one contested issue, as requested. Pursuant
to Sec. 385.601 of the Commission's regulations,\8\ we also establish
settlement judge procedures for the one contested issue set for trial-
type hearing, as requested.
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\6\ 18 CFR 41.3 (2022).
\7\ 18 CFR 41.7 (2022).
\8\ 18 CFR 385.601 (2022).
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I. Audit Report
3. The Audit Report summarizes the review by Enforcement's Division
of Audits and Accounting (DAA), first announced in this docket on April
21, 2021, of ComEd's compliance with: (1) the approved terms, rates,
and conditions of its transmission formula rate mechanism as provided
in Attachment H-13A of the PJM Interconnection, L.L.C. Open Access
Transmission Tariff; (2) the accounting requirements of the Uniform
System of Accounts Prescribed for Public Utilities and Licensees under
18 CFR part 101 (2022) ; (3) the reporting requirements of the FERC
Form No. 1, Annual Report of Major Electric Utilities, Licensees and
Others, under 18 CFR 141.1 (2022); and (4) the requirements in
Preservation of Records of Public Utilities and Licensees under 18 CFR
part 125 (2022).\9\ The Audit Report contained 11 findings and 61
recommendations that require ComEd to take corrective action. The audit
covered the period January 1, 2017 through August 31, 2022.
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\9\ Delegated Order at P 2.
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4. As described in the Delegated Order accompanying the Audit
Report, ComEd notified DAA on June 29, 2023 that ComEd disagreed with
and expected to contest DAA's findings and recommendations pertaining
to: (1) the asset retirement obligations (ARO) to the extent that the
ARO finding and recommendations are not held in abeyance; (2) the
accounting misclassifications related to internal labor costs for
remediation at manufactured gas plant (MGP) sites; and (3) the
allocation of overhead costs to construction work in progress
(CWIP).\10\ In the Delegated Order, the Director of Enforcement denied
the requested abeyance for the ARO finding and recommendations.\11\
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\10\ Id. P 3.
\11\ Id.; see also Audit Report, attach. A, ComEd Responses to
Findings and Recommendations, at p.3 (requesting that Audit Staff
Finding 3 and related recommendations related to ARO be held in
abeyance pending ComEd submitting, and the Commission acting on, a
single-issue filing under section 205 of the Federal Power Act).
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5. The Delegated Order stated that it served as notice, pursuant to
part 41 of the Commission's regulations,\12\ that ComEd may notify the
Commission in writing, within 30 days of the issuance of the Delegated
Order, as to whether it requests Commission review of the contested
issues by a shortened paper hearing procedure or a trial-type hearing
if ComEd contends that there are material facts in dispute that require
cross-examination.\13\
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\12\ 18 CFR part 41 (2022).
\13\ Delegated Order at P 5.
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6. As described below, on August 28, 2023, ComEd timely filed a
response to the Delegated Order. On September 8, 2023, Enforcement
staff filed an answer to ComEd's response. On September 15, 2023, ComEd
filed an answer to Enforcement staff's answer.
II. ComEd Response and Election of Process
7. In its response to the Delegated Order, ComEd elected Commission
review by means of the shortened paper hearing procedures for two
issues: (1) the accounting treatment of AROs (Audit Report Issue 3 and
Recommendations 8-12); and (2) the accounting treatment of MGP site
remediation costs (Audit Report Issue 7 and Recommendations 34-43).\14\
ComEd states that, for these two issues, it elected shortened paper
hearing procedures because there are no material facts in dispute.
ComEd also elected Commission review by means of a trial-type hearing
for one issue, the allocation of overhead costs to CWIP (Audit Report
Issue 4 and Recommendations 12-21). ComEd states that, for this issue,
it elected Commission review by a trial-type hearing because there are
material facts in dispute that require cross-examination.\15\
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\14\ ComEd Response at 1-2. ComEd states that, notwithstanding
its challenge of the ARO issue, it agrees to revise its treatment of
Account 108 ARO Depreciation Removals as recommended in the Audit
Report. Id. at 1 n.2. Further, ComEd clarifies that it does not
challenge the findings in Audit Report Issue 7 related to items
other than MGP site remediation costs and it will take the requested
corrective actions as to those other items. Id. at 1 n.3.
\15\ Id. at 1 (citing 18 CFR 41.2).
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8. First, ComEd asserts that the Audit Report raises disputed
issues of material fact concerning the allocation of overhead costs to
CWIP because the Audit Report contends that ComEd's ``processes and
procedures for allocating labor and related overhead costs to
construction were not consistent with Commission accounting
regulations,'' and ``may have led to overstated construction costs.''
\16\ ComEd asserts that these Enforcement staff findings raise several
disputed issues of material fact, including: (1) What were ComEd's
processes and procedures, and were they appropriately designed and
conducted in light of the Commission's accounting rules and applicable
precedent? (2) Did those processes and procedures properly determine
the amounts of such overheads reasonably
[[Page 14644]]
applicable to construction? and (3) Do those processes and procedures
comply with the relevant requirements?
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\16\ Id. at 8 (quoting Audit Report at 48).
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9. Second, ComEd asserts that there also are disputed issues of
material fact concerning the data on which the Audit Report relies.
ComEd explains that the Audit Report contends that its analysis was
based on ``interviews of a randomized sample of ComEd's employees whose
labor costs were allocated to construction projects during the audit
period and a review of a sample of timesheets associated with the
employees.'' \17\ ComEd contends that this statement raises disputed
issues of material fact, including:
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\17\ Id. at 8-9 (quoting Audit Report at 26).
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(1) Who was interviewed, how were they selected, and what were they
asked?
(2) What timesheets were reviewed and what did they reveal? and (3)
Did the material reviewed support or contradict the Audit Report's
conclusions?
10. Third, ComEd asserts that the Audit Report's recommendation to
remedy this issue--to retain an independent third-party entity to
conduct a representative labor-time study for allocation of overhead
costs incurred in 2023--raises disputed issues of material fact.\18\
ComEd contends that the disputed issues include: (1) How would the new
study be implemented in practice? (2) Would that approach be
appropriately designed and conducted in light of the Commission's
accounting rules and applicable precedent? (3) Would that approach
properly determine the amounts of such overheads reasonably applicable
to construction? and (4) Would that approach comply with the relevant
requirements?
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\18\ Id. at 9-10 (citing Audit Report at 48).
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11. Finally, ComEd asserts that the Audit Report's remedy--to
remediate the allocation of overhead costs to accounts dating back to
2017--raises disputed issues of material fact.\19\ ComEd contends that
the disputed issues include: (1) Were ComEd's overheads allocations
going back to 2017 reasonable? (2) Did the work done by the relevant
personnel change from year to year? (3) If so, how could one
appropriately restate the allocations for past years? (4) Is the
``estimate'' proposed by the Audit Report a reasonable and non-
arbitrary way of reallocating overheads in years remote from the year
in which the study was conducted? and (5) Would restating amounts for
such prior years allow ComEd to properly recover its prudently incurred
and reasonable costs? With respect to the fourth question, ComEd
asserts that there are strong reasons to doubt that a labor-time study
performed in 2023 will be a more accurate method of allocating overhead
labor costs than the approach that ComEd used in the past to allocate
overhead labor costs that were incurred several years earlier.\20\
ComEd states, for example, that in prior years, many ComEd employees
were working on the Grand Prairie Gateway 345kV transmission project.
ComEd asserts that, because that project was completed in 2017, a
labor-time study done in 2023 will not capture the considerable time
that ComEd employees spent on that project.
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\19\ Id. at 10 (citing Audit Report at 48-49).
\20\ Id. at 10 n.31.
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12. ComEd suggests that it could be beneficial to employ a
settlement judge procedure prior to the trial-type hearing with the
hope that a negotiated resolution of the overhead costs issue might be
achievable.\21\
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\21\ Id. at 11.
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III. Enforcement Staff Answer
13. Enforcement staff filed an answer asserting that ComEd's
response fails to identify any disputed issue of material fact and, if
such an issue had been identified, fails to meet the additional
requirement of showing why a trial-type hearing with cross-examination
of witnesses would be necessary to resolve the issue, rather than a
paper hearing.\22\
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\22\ Enforcement Staff Answer at 1-3 (arguing that ComEd has the
additional burden to show why live witness testimony and testing the
credibility of witnesses on the stand is required to resolve the
factual dispute).
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14. Enforcement staff contends that there are no disputed issues of
material fact because Enforcement staff and ComEd agree as to what
ComEd did and did not do to allocate overhead costs.\23\ Enforcement
staff explains that ComEd's overhead costs were accumulated into
overhead pools and were allocated between construction and operating
and maintenance projects using an allocation methodology. Enforcement
staff states that ComEd categorized the overhead costs into two
indirect cost overhead pools--Administrative and General (A&G) and
General and Administrative (G&A). Enforcement staff states that the A&G
overhead pool was used to accumulate costs such as information
technology, legal, fixed assets, human resources, real estate, and
Exelon \24\ Business Service Company costs. Enforcement staff states
that, to allocate A&G overhead pool costs, ComEd first reviewed each
cost within its operating and maintenance budget to determine whether
the cost was eligible for capitalization. Enforcement staff states that
ComEd then allocated the eligible A&G overhead cost based on the ratio
of capitalized labor cost over total labor cost. Enforcement staff
states that the G&A overhead pool was used to accumulate overhead costs
from ComEd departments that provided back-office support to capital-
intensive departments.\25\ Enforcement staff states that, to allocate
G&A overhead pool costs to construction, ComEd applied the weighted
average overhead capitalization rate of the capital-intensive
departments to the costs accumulated in the G&A overhead pool.
Enforcement staff also asserts that the facts are clear as to what
ComEd did not do to allocate its overhead costs: specifically, it did
not base its allocation on actual time (through timecard
distributions), or on a study of actual employee time spent on work
relating to construction projects, as required by the Commission's
accounting regulation.\26\
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\23\ Id. at 4.
\24\ Exelon Corporation (Exelon) is the parent company of ComEd.
\25\ Enforcement Staff Answer at 5.
\26\ Id. at 6; Audit Report at 45 (citing 18 CFR part 101,
General Instruction No. 9, Distribution of Pay and Expenses of
Employees).
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15. Enforcement staff further contends that ComEd's purported
questions are general and abstract, with no identification of a factual
issue that ComEd contends is disputed, no attempt to show that any such
disputed fact is ``material'' to a matter presently before the
Commission to be decided, and no explanation of why such an issue
requires live witness testimony as opposed to resolution through a
paper hearing.\27\
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\27\ Enforcement Staff Answer at 6.
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16. Enforcement staff asserts that, given there are no material
issues of fact to resolve regarding ComEd's allocation of overhead
costs, the Commission is left to resolve only a question of law: Did
ComEd's allocation of overhead costs comply with the Commission's
accounting regulations? Enforcement staff asserts that it does not
believe that ComEd complied with the Commission's regulations because
it did not allocate overhead costs based on actual time or a study of
actual employee time.\28\ Enforcement staff therefore asserts that the
Commission should deny ComEd's request for a trial-type hearing and set
the question of law--the interpretation of the Commission's accounting
regulations for overhead construction costs--for paper hearing.\29\
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\28\ Id. at 6-7.
\29\ Id. at 7-8.
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17. With respect to ComEd's request that the Commission employ
settlement
[[Page 14645]]
judge procedures, Enforcement staff notes that it has engaged in
lengthy discussions with ComEd over a nine-month period to attempt to
resolve all issues in this audit proceeding without success.\30\
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\30\ Id. at 8 n.14 (citing ComEd Response at 11).
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IV. ComEd Answer
ComEd asserts that, under the Commission's regulations, the issue
is whether ComEd's method of allocating overhead construction costs
``reasonably appli[ed]'' those costs to ``particular jobs or units,''
so that ``each job or unit shall bear its equitable proportion of such
costs.'' \31\ ComEd states that, to apply this guidance and determine
which costs are properly recorded as overhead construction costs, ComEd
conducts an annual study of personnel in various back-office
departments and assigns their costs based on the results of that
study.\32\ In response to Enforcement staff's assertion that there is
agreement between Enforcement staff and ComEd about ComEd's cost
allocation methodology, ComEd responds that it is unsure that there is
any such agreement, but even if there was agreement, the key question
is not what method ComEd used, but whether ComEd's method was
reasonable, which is inherently a factual one.\33\
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\31\ ComEd Answer at 2-3 (quoting 18 CFR part 101, Electric
Plant Instruction No. 4(A), Overhead Construction Costs).
\32\ Id. at 3-4.
\33\ Id. at 2, 4, 5 (arguing that it is also a factual question
whether a time study conducted in 2024 is a reasonable proxy for the
allocation of costs spent up to eight years earlier).
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18. ComEd asserts that the Audit Report is premised on factual
conclusions based on Enforcement staff's interviews.\34\ In particular,
ComEd states that Enforcement staff's evaluation of the reasonableness
of ComEd's method was based on ``interviews of a randomized sample of
ComEd's employees whose labor costs were allocated to construction
projects during the audit period and a review of a sample of timesheets
associated with the employees.'' \35\ ComEd states that the Audit
Report does not disclose anything about the substance of those
interviews or the methods used to analyze the results, which makes it
impossible for either ComEd or the Commission to assess the Audit
Report's findings and recommendations on overhead construction
costs.\36\
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\34\ Id. at 4.
\35\ Id. (quoting Audit Report at 26).
\36\ Id. at 4-5.
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19. ComEd states that it continues to think that settlement judge
procedures could be beneficial because a mediator can sometimes help
adverse parties find a resolution.\37\
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\37\ Id. at 6.
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V. Discussion
A. Procedural Matters
20. Rule 213(a)(2) of the Commission's Rules of Practice and
Procedure, 18 CFR 385.213(a)(2) (2022), prohibits an answer to an
answer unless otherwise ordered by the decisional authority. We accept
ComEd's answer \38\ because it has provided information that assisted
us in our decision-making process.
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\38\ We note that Enforcement staff's answer to ComEd's response
was appropriately filed pursuant to Rule 213(a)(3) of the
Commission's Rules of Practice and Procedure, 18 CFR 385.213(a)(3).
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B. Substantive Matters
21. In Order No. 675, the Commission amended its Part 41
regulations to expand due process by allowing an audited person who
disputes findings or proposed remedies contained in an audit report to
elect a shortened paper hearing procedure or a trial-type hearing to
challenge disputed audit matters.\39\ The Commission stated that it
would honor the audited person's timely election unless a trial-type
hearing is chosen and there are, in the Commission's judgment, no
disputed issues of material fact that require a trial-type hearing.\40\
In response to ComEd's timely election, we establish a shortened paper
hearing procedure for two contested issues, and we establish a trial-
type hearing and settlement judge procedures for one contested issue,
as set forth below.
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\39\ Procs. for Disposition of Contested Audit Matters, Order
No. 675, 114 FERC ] 61,178, at P 37, order on reh'g & clarification,
Order No. 675-A, 115 FERC ] 61,189 (2006).
\40\ Id.; see also 18 CFR 41.7.
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1. Shortened Paper Hearing Procedure
22. Pursuant to Sec. 41.3 of the Commission's regulations,\41\ we
direct the commencement of a paper hearing and establish paper hearing
procedures concerning two contested issues, as requested by ComEd: (1)
the accounting treatment of AROs (Issue 3 in the Audit Report and
Recommendations 8-12); and (2) the accounting treatment of MGP site
remediation costs (Issue 7 in the Audit Report and Recommendations 34-
43).\42\ The scope of the paper hearing is limited to these challenged
findings and recommendations.
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\41\ 18 CFR 41.3.
\42\ Consistent with ComEd's election, we do not set for hearing
the findings in Issue 7 that relate to items other than MGP site
remediation costs, as those findings are uncontested and ComEd has
agreed to take the corrective actions directed by Enforcement staff.
See ComEd Response at 1 n.3.
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23. In accordance with Sec. 41.3, ComEd and any other interested
entity, including Enforcement staff, shall file, within 45 days of this
order, an initial memorandum that addresses the relevant facts and
applicable law that support the position or positions taken regarding
the matters at issue.\43\ Reply memoranda may be filed by participants
who filed initial memoranda. Reply memoranda must be filed within 20
days of the due date for initial memoranda. Pursuant to Sec. 41.3,
subpart T of part 385 of the Commission's regulations shall apply to
all filings. Further, pursuant to Sec. 41.4, each entity's memorandum
should set out the facts and arguments as prescribed for briefs in Rule
706 of the Commission's Rules of Practice and Procedure.\44\ Section
41.5 also requires that the facts stated in the memorandum must be
sworn to by persons having knowledge thereof, which latter fact must
affirmatively appear in the affidavit.\45\
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\43\ In Order No. 675, the Commission stated that it will use
the same standard for permitting interested entities to file
memoranda in the shortened paper hearing procedures as it uses to
permit interventions in other proceedings. In addition, the
Commission stated that an interested entity may include in its
initial memorandum filed pursuant to the shortened paper hearing
procedures a motion to intervene in the proceeding. Order No. 675,
114 FERC ] 61,178 at P 11 (citing 18 CFR 385.214(b) (2022)); see
FirstEnergy Corp., 185 FERC ] 61,099, at P 21 & n.61 (2023) (stating
that interventions are permitted in a contested audit proceeding in
which the audited person elects to contest one or more audit
findings or remedies in a shortened paper hearing procedure).
\44\ 18 CFR 41.4 (citing 18 CFR 385.706 (2022)).
\45\ Id. Sec. 41.5.
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24. eFiling is encouraged. More detailed information relating to
filing requirements, interventions, and service can be found at:
https://www.ferc.gov/media/5339. For other information, call (866) 208-
3676 (toll free). For TTY, call (202) 502-8659.
2. Trial-Type Hearing and Settlement Judge Procedures
25. With respect to the contested issue concerning the allocation
of overhead costs to CWIP (Issue 4 in the Audit Report and
Recommendations 13-21), we find that ComEd has raised issues of
material fact that cannot be resolved based on the record before us and
that are more appropriately addressed in a trial-type hearing.
Therefore, pursuant to Sec. 41.7 of the Commission's regulations,\46\
we direct the commencement of a trial-type hearing and establish trial-
type hearing procedures concerning the allocation of overhead costs to
CWIP, as requested by
[[Page 14646]]
ComEd. The scope of the trial-type hearing is limited to these
challenged findings and recommendations. Pursuant to Rule 601 of the
Commission's Rules of Practice and Procedure,\47\ we also establish
settlement judge procedures for this contested issue, as requested by
ComEd.\48\
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\46\ Id. Sec. 41.7.
\47\ Id. Sec. 385.601.
\48\ ComEd Response at 11; ComEd Answer at 6.
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26. Any interested entity seeking to participate in this trial-type
hearing shall file a motion to intervene pursuant to Rule 214 of the
Commission's Rules of Practice and Procedure \49\ no later than 15 days
after the date of publication of this order in the Federal Register.
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\49\ 18 CFR 385.214; see FirstEnergy Corp., 185 FERC ] 61,099 at
P 21 & n.61 (stating that interventions are permitted in a contested
audit proceeding in which the audited person elects to contest one
or more audit findings or remedies in a trial-type hearing).
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27. While we are setting the allocation of overhead costs to CWIP
for a trial-type evidentiary hearing,\50\ we encourage efforts to reach
settlement before hearing procedures commence. To aid settlement
efforts, we will hold the trial-type hearing in abeyance and direct
that a settlement judge be appointed, pursuant to Rule 603 of the
Commission's Rules of Practice and Procedure.\51\ If parties desire,
they may, by mutual agreement, request a specific judge as the
settlement judge in the proceeding. The Chief Judge, however, may not
be able to designate the requested settlement judge based on workload
requirements, which determine judges' availability.\52\ The settlement
judge shall report to the Chief Judge and the Commission within 60 days
of the date of the appointment of the settlement judge concerning the
status of settlement discussions. Based on this report, the Chief Judge
shall provide the parties with additional time to continue their
settlement discussions or provide for commencement of a hearing by
assignment of the case to a presiding judge.
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\50\ Enforcement staff is a participant in the trial-type
hearing and settlement judge procedures. See 18 CFR 385.102(b), (c)
(2022).
\51\ 18 CFR 385.603.
\52\ If the parties decide to request a specific judge, they
must make their joint request to the Chief Judge by telephone at
(202) 502-8500 within five days of this order. The Commission's
website contains a list of Commission judges available for
settlement proceedings and a summary of their background and
experience (https://www.ferc.gov/available-settlement-judges).
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The Commission orders:
(A) A paper hearing and related procedures are hereby established
concerning two contested issues, the accounting treatment of AROs and
MGP site remediation costs, as set forth in the body of this order.
(B) A trial-type hearing and related procedures, and settlement
procedures are hereby established concerning one contested issue, the
allocation of overhead costs to CWIP, as set forth in the body of this
order.
(C) Pursuant to the authority contained in and subject to the
jurisdiction conferred on the Commission by section 402(a) of the
Department of Energy Organization Act and the Federal Power Act (FPA),
particularly Sec. 205, 206 and 301 thereof, and pursuant to the
Commission's Rules of Practice and Procedure and the regulations under
the FPA (18 CFR chapter I), a public hearing shall be held concerning
the allocation of overhead costs to CWIP, as discussed in the body of
this order. However, the hearing will be held in abeyance to provide
time for settlement judge procedures, as discussed in Ordering
Paragraphs (D) and (E) below.
(D) Pursuant to Rule 603 of the Commission's Rules of Practice and
Procedure, 18 CFR 385.603, the Chief Judge is hereby directed to
appoint a settlement judge in this proceeding within 45 days of the
date of this order. Such settlement judge shall have all powers and
duties enumerated in Rule 603 and shall convene a settlement conference
as soon as practicable after the Chief Judge designates the settlement
judge. If parties decide to request a specific judge, they must make
their request to the Chief Judge within five days of the date of this
order.
(E) Within 60 days of the appointment of the settlement judge, the
settlement judge shall file a report with the Commission and the Chief
Judge on the status of the settlement discussions. Based on this
report, the Chief Judge shall provide participants with additional time
to continue their settlement discussions, if appropriate, or assign
this case to a presiding judge for a trial-type evidentiary hearing, if
appropriate. If settlement discussions continue, the settlement judge
shall file a report at least every 60 days thereafter, informing the
Commission and the Chief Judge of participants' progress toward
settlement.
(F) If settlement judge procedures fail and a trial-type
evidentiary hearing is to be held, a presiding judge, to be designated
by the Chief Judge, shall, within 45 days of the date of the presiding
judge's designation, convene a prehearing conference in these
proceedings in a hearing room of the Commission, 888 First Street NE,
Washington, DC 20426, or remotely (by telephone or electronically), as
appropriate. Such a conference shall be held for the purpose of
establishing a procedural schedule. The presiding judgeis authorized to
establish procedural dates, and to rule on all motions (except motions
to dismiss) as provided in the Commission's Rules of Practice and
Procedure.
By the Commission. Commissioner Danly is not participating.
Issued: Issued December 8, 2023.
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2024-04055 Filed 2-27-24; 8:45 am]
BILLING CODE 6717-01-P
