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 F—Conferences, Settlements, and Stipulations

18 C.F.R. § 385.602

Submission of settlement offers (Rule 602)

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(a) Applicability. This section applies to written offers of settlement filed in any proceeding pending before the Commission or set for hearing under subpart E. For purposes of this section, the term “offer of settlement” includes any written proposal to modify an offer of settlement.

(b) Submission of offer. (1) Any participant in a proceeding may submit an offer of settlement at any time.

(2) An offer of settlement must be filed with the Secretary. The Secretary will transmit the offer to:

(i) The presiding officer, if the offer is filed after a hearing has been ordered under subpart E of this part and before the presiding officer certifies the record to the Commission; or

(ii) The Commission.

(3) If an offer of settlement pertains to multiple proceedings that are in part pending before the Commission and in part set for hearing, any participant may by motion request the Commission to consolidate the multiple proceedings and to provide any other appropriate procedural relief for purposes of disposition of the settlement.

(c) Contents of offer. (1) An offer of settlement must include:

(i) The settlement offer;

(ii) A separate explanatory statement. This paragraph (c)(1)(ii) shall cease to have effect on December 5, 2026, unless the Commission determines that the cessation deadline should be extended to a date not more than 5 years in the future after offering the public an opportunity to provide input on the costs and benefits of this paragraph (c)(1)(ii) and considering that input. The Commission will publish a document in the Federal Register announcing its determination and revising or removing this paragraph (c)(1)(ii) accordingly; and

(iii) Copies of, or references to, any document, testimony, or exhibit, including record citations if there is a record, and any other matters that the offerer considers relevant to the offer of settlement; and

(2) If an offer of settlement pertains to a tariff or rate filing, the offer must include any proposed change in a form suitable for inclusion in the filed rate schedules or tariffs, and a number of copies sufficient to satisfy the filing requirements applicable to tariff or rate filings of the type at issue in the proceeding.

(d) Service. (1) A participant offering settlement under this section must serve a copy of the offer of settlement:

(i) On every participant in accordance with Rule 2010;

(ii) On any person required by the Commission's rules to be served with the pleading or tariff or rate schedule filing, with respect to which the proceeding was initiated.

(2) The participant serving the offer of settlement must notify any person or participant served under paragraph (d)(1) of this section of the date on which comments on the settlement are due under paragraph (f) of this section.

(e) Use of non-approved offers of settlement as evidence. (1) An offer of settlement that is not approved by the Commission, and any comment on that offer, is not admissible in evidence against any participant who objects to its admission.

(2) Any discussion of the parties with respect to an offer of settlement that is not approved by the Commission is not subject to discovery or admissible in evidence.

(f) Comments. (1) A comment on an offer of settlement must be filed with the Secretary who will transmit the comment to the Commission, if the offer of settlement was transmitted to the Commission, or to the presiding officer in any other case.

(2) A comment on an offer of settlement may be filed not later than 20 days after the filing of the offer of settlement and reply comments may be filed not later than 30 days after the filing of the offer, unless otherwise provided by the Commission or the presiding officer.

(3) Any failure to file a comment constitutes a waiver of all objections to the offer of settlement.

(4) Any comment that contests an offer of settlement by alleging a dispute as to a genuine issue of material fact must include an affidavit detailing any genuine issue of material fact by specific reference to documents, testimony, or other items included in the offer of settlement, or items not included in the settlement, that are relevant to support the claim. Reply comments may include responding affidavits.

(g) Uncontested offers of settlement. (1) If comments on an offer are transmitted to the presiding officer and the presiding officer finds that the offer is not contested by any participant, the presiding officer will certify to the Commission the offer of settlement, a statement that the offer of settlement is uncontested, and any hearing record or pleadings which relate to the offer of settlement.

(2) If comments on an offer of settlement are transmitted to the Commission, the Commission will determine whether the offer is uncontested.

(3) An uncontested offer of settlement may be approved by the Commission upon a finding that the settlement appears to be fair and reasonable and in the public interest.

(h) Contested offers of settlement. (1)(i) If the Commission determines that any offer of settlement is contested in whole or in part, by any party, the Commission may decide the merits of the contested settlement issues, if the record contains substantial evidence upon which to base a reasoned decision or the Commission determines there is no genuine issue of material fact.

(ii) If the Commission finds that the record lacks substantial evidence or that the contesting parties or contested issues can not be severed from the offer of settlement, the Commission will:

(A) Establish procedures for the purpose of receiving additional evidence before a presiding officer upon which a decision on the contested issues may reasonably be based; or

(B) Take other action which the Commission determines to be appropriate.

(iii) If contesting parties or contested issues are severable, the contesting parties or uncontested portions may be severed. The uncontested portions will be decided in accordance with paragraph (g) of this section.

(2)(i) If any comment on an offer of settlement is transmitted to the presiding officer and the presiding officer determines that the offer is contested, whole or in part, by any participant, the presiding officer may certify all or part of the offer to the Commission. If any offer or part of an offer is contested by a party, the offer may be certified to the Commission only if paragraph (h)(2)(ii) or (iii) of this section applies.

(ii) Any offer of settlement or part of any offer may be certified to the Commission if the presiding officer determines that there is no genuine issue of material fact. Any certification by the presiding officer must contain the determination that there is no genuine issue of material fact and any hearing record or pleadings which relate to the offer or part of the offer being certified.

(iii) Any offer of settlement or part of any offer may be certified to the Commission, if:

(A) The parties concur on a motion for omission of the initial decision as provided in Rule 710, or, if all parties do not concur in the motion, the presiding officer determines that omission of the initial decision is appropriate under Rule 710(d), and

(B) The presiding officer determines that the record contains substantial evidence from which the Commission may reach a reasoned decision on the merits of the contested issues.

(iv) If any contesting parties or contested issues are severable, the uncontested portions of the settlement may be certified immediately by the presiding officer to the Commission for decision, as provided in paragraph (g) of this section.

(i) Reservation of rights. Any procedural right that a participant has in the absence of an offer of settlement is not affected by Commission disapproval, or approval subject to condition, of the uncontested portion of the offer of settlement.

[Order 225, 47 FR 19022, May 3, 1982, as amended by Order 541, 57 FR 21734, May 22, 1992; Order 578, 60 FR 19505, Apr. 19, 1995; Order 914, 90 FR 48406, Oct. 21, 2025]
Notes of Decisions
Cited in 34 cases (1 in the last 5 years), 1984–2022 · leading case: Laclede Gas Co. v. Fed. Energy Regulatory Comm'n, Entex, a Div. of Arkla, Inc., Intervenors, 997 F.2d 936 (Fed. Cir. 1993).
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Laclede Gas Co. v. Fed. Energy Regulatory Comm'n, Entex, a Div. of Arkla, Inc., Intervenors, 997 F.2d 936 (Fed. Cir. 1993). · cites it 9× “18 C.F.R. § 385.602 (g), (h) (1992). Laclede argued that FERC had improperly applied the Rule 602(g) standard for uncontested settlements by approving the joint settlement on the ground that it was “fair and reasonable.”
United Mun. Distributors Grp. v. Fed. Energy Regulatory Comm'n, United Gas Pipe Line Co., Intervenor, 732 F.2d 202 (D.C. Cir. 1984). · cites it 2× “8 Rule 602(h), 18 C.F.R. § 385.602 (h) (1982) (emphasis added).”
Tejas Power Corp. v. Fed. Energy Regulatory Comm'n. Nos. 89-1267, 908 F.2d 998 (D.C. Cir. 1990). · cites it 2× “§ 717f(e); see also 18 C.F.R. § 385.602 (g)(3) (Commission may approve uncontested settlement only “upon a finding that the settlement appears to be fair and reasonable and in the public interest”).”
Petal Gas Storage, L.L.C. v. Fed. Energy Regulatory Comm'n, 496 F.3d 695 (D.C. Cir. 2007). · cites it 2× “” 18 C.F.R. § 385.602 (g)(3). The implication—as we have stated in dicta before and affirm now—is that the Commission may adopt an uncontested settlement only after finding it “fair and reasonable and in the public interest”; that is, the Commission has a duty to disapprove…”
Exxon Corp. v. Fed. Energy Regulatory Comm'n, Louisiana Gas Serv. Co., a Div. of Citizens Utils. Co., Intervenors, 114 F.3d 1252 (D.C. Cir. 1997). · cites it 4× “or, if all parties do not concur in the motion, the presiding officer determines that omission of the initial decision is appropriate,” 18 C.F.R. § 385.602 (h)(2)(iii)(A); and that (2) the ALJ “determines that the record contains substantial evidence from which the Commission…”
Green Island Power Auth. v. Fed. Energy Regulatory Comm'n, 577 F.3d 148 (2d Cir. 2011). · cites it 2× “See 18 C.F.R. § 385.602 . The Offer of Settlement, which was signed by Erie, the United States Fish and Wildlife Service, the National Park Service, NYS DEC, New York Power Authority, New York Rivers, New York State Conservation Council, and Rensselaer County Conservation…”
Long Island Power Auth. v. FERC, 27 F.4th 705 (D.C. Cir. 2022). “” Trailblazer Pipeline Co., 11 85 FERC ¶ 61,345 , 62,342 (1998).”
Pub. Utils. Comm'n v. Fed. Energy Regulatory Comm'n, 462 F.3d 1027 (9th Cir. 2006). “Moreover, only a pai'ty can contest a settlement, 18 C.F.R. § 385.602 (h) (2003).... Another implication of the application is the Commission’s rules governing off-the-record communications.”
Atlanta Gas Light Co. v. Fed. Energy Regulatory Comm'n, 140 F.3d 1392 (11th Cir. 1998). “” 18 C.F.R. § 385.602 (h)(1)®. In considering the arguments of Atlanta Gas in its petition for rehearing of the 1992 Order, the Commission found that the record, which included an oral argument as well as the same affidavits that Atlanta Gas submitted for the 1991 and 1992…”
Columbia Gas Transmission Corp. v. Fed. Energy Regulatory Comm'n, United Gas Pipe Line Co., Intervenor, 750 F.2d 105 (D.C. Cir. 1984). “Columbia also asserts that the Commission considered evidence of a nonapproved offer of settlement in its determination, in contravention of Rule 602(e) of the Commission’s Rules of Practice and Procedure, 18 C.F.R. § 385.602 (e) (1984). Columbia advanced this argument for the…”
Jackson Cnty. v. Fed. Energy Regulatory Comm'n, 589 F.3d 1284 (D.C. Cir. 2009). “7 Finally, Jackson County argues, summarily, that FERC violated 18 C.F.R. § 385.602 which “provides that an offer of settlement may be submitted by any party to a proceeding” as well as FERC’s (unidentified) “prior cases” when it “fail[ed] to review [the ‘Offer of Preferred…”
Narragansett Elec. Co. v. Constellation Energy Commodities Grp., Inc., 526 F. Supp. 2d 260 (D.R.I. 2007). “18 C.F.R. § 385.602 (h). Severance may enable a party to litigate contested issues while permitting FERC to approve uncontested matters to "bring needed stability to the industry, end protracted litigation and thereby benefit customers.”
Show all 34 citing cases →
— 18 C.F.R. § 385.602(h)(1) — 2 cases
Pub. Utils. Comm'n of the State of California Off. of the Consumers' Couns., State of Ohio v. Fed. Energy Regulatory Comm'n, Indiana Gas Co., Inc. Panhandle E. Pipe Line Co. Trunkline Gas Co. Algonquin Gas Transmission Co. Texas E. Transmission Corp. Associated Gas Distributors Citizens Gas & Coke Util. Pub. Serv. Elec. & Gas Co. Cincinnati Gas & Elec. Co. Union Light, Heat & Power Co. Lawrenceburg Gas Co. S. California Gas Co. Washington Gas Light Co. Am. Gas Ass'n Columbia Gas Transmission Companies Gas Rsch. Inst. Interstate Nat. Gas Ass'n of Am. Mitchell Energy Corp. Nat. Gas Pipeline Co. of Am. Process Gas Consumers Grp. Am. Iron & Steel Inst. Georgia Indus. Grp. Alabama Gas Corp. Bay State Gas Co. Philadelphia Gas Works Williams Nat. Gas Co. Anr Pipeline Co. Colorado Interstate Gas Co. Conoco Inc. Marathon Oil Co. Wisconsin Distrib. Grp. Peoples Gas Light & Coke Co. Pac. Gas Transmission Co., Intervenors. Pub. Utils. Comm'n of the State of California Off. of the Consumers' Couns., State of Ohio v. Fed. Energy Regulatory Comm'n, Conoco Inc. Indiana Gas Co., Inc. S. California Gas Co. Gas Rsch. Inst. N. Nat. Gas Co. Florida Gas Transmission Co. Transwestern Pipeline Co. Nat. Gas Pipeline Co. of Am. W. Resources, Inc. Columbia Gas Transmission Companies Interstate Nat. Gas Ass'n of Am. Panhandle E. Pipe Line Co. Texas E. Transmission Corp. Trunkline Gas Co. Algonquin Gas Transmission Co. Anr Pipeline Co. Pac. Gas & Elec. Co. Colorado Interstate Gas Co. Am. Gas Ass'n Brooklyn Union Gas Co. Cincinnati Gas & Elec. Co. Union Light, Heat & Power Co. Lawrenceburg Gas Co. Process Gas Consumers Grp. Am. Iron & Steel Inst. Georgia Indus. Grp. United Distrib. Companies, Intervenors, 24 F.3d 275 (D.C. Cir. 1994).
Pub. Utils. Comm'n of California v. Fed. Energy Regulatory Comm'n, 24 F.3d 275 (D.C. Cir. 1994).
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