[Code of Federal Regulations]
[Title 18, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 18CFR385.605]

[Page 912-913]
 
           TITLE 18--CONSERVATION OF POWER AND WATER RESOURCES
 
  CHAPTER I--FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY
 
PART 385--RULES OF PRACTICE AND PROCEDURE--Table of Contents
 
          Subpart F--Conferences, Settlements, and Stipulations
 
Sec. 385.605  Arbitration (Rule 605).

    (a) Authorization of arbitration. (1) The participants may at any 
time submit a written proposal to use binding arbitration under the 
provisions of Rule 605 to resolve all or part of any matter in 
controversy, or anticipated to be in controversy, before the Commission.
    (2) The proposal must be submitted as provided in Rule 604(d).
    (3) The proposal must be in writing and contain the information 
required in Rule 604(e).
    (4) An arbitration proceeding under this rule may be monitored as 
provided in Rule 604(f).
    (5) No person may be required to consent to arbitration as a 
condition of entering into a contract or obtaining a benefit. All 
interested parties must expressly consent before arbitration may be 
used.
    (b) Arbitrators. (1) The participants to an arbitration proceeding 
are entitled to select the arbitrator.
    (2) The arbitrator must be a neutral who meets the criteria of a 
neutral under Rule 604(c).
    (c) Authority of arbitrator. An arbitrator to whom a dispute is 
referred under this section may:
    (1) Regulate the course of and conduct arbitral hearings;
    (2) Administer oaths and affirmations;
    (3) Compel the attendance of witnesses and the production of 
evidence to the extent the Commission is authorized by law to do so; and
    (4) Make awards.
    (d) Arbitration proceedings. (1) The arbitrator will set a time and 
place for the hearing on the dispute and must notify the participants 
not less than 5 days before the hearing.
    (2) Any participant wishing that there be a record of the hearing 
must:
    (i) Prepare the record;
    (ii) Notify the other participants and the arbitrator of the 
preparation of the record;
    (iii) Furnish copies to all identified participants and the 
arbitrator; and
    (iv) Pay all costs for the record, unless the participants agree 
otherwise or the arbitrator determines that the costs should be 
apportioned.
    (3)(i) Participants to the arbitration are entitled to be heard, to 
present evidence material to the controversy, and to cross-examine 
witnesses appearing at the hearing to the same extent as in a proceeding 
under Subpart E of this part;
    (ii) The arbitrator may, with the consent of the participants, 
conduct all or part of the hearing by telephone, television, computer, 
or other electronic means, if each participant has an opportunity to 
participate.
    (iii) The hearing must be conducted expeditiously and in an informal 
manner.
    (iv) The arbitrator may receive any oral or documentary evidence, 
except that irrelevant, immaterial, unduly repetitious, or privileged 
evidence may be excluded by the arbitrator.
    (v) The arbitrator will interpret and apply relevant statutory and 
regulatory requirements, legal precedents, and policy directives.
    (4) No interested person will make or knowingly cause to be made to 
the arbitrator an unauthorized ex parte communication relevant to the 
merits of the proceeding, unless the participants agree otherwise. If a 
communication is made in violation of this prohibition, the arbitrator 
will ensure that a memorandum of the communication is prepared and made 
a part of the record, and that an opportunity for rebuttal is allowed. 
Upon receipt of such communication, the arbitrator may require the 
offending participant to show cause

[[Page 913]]

why the claim of the participant should not be resolved against the 
participant as a result of the improper conduct.
    (5) The arbitrator will make the award within 30 days after the 
close of the hearing or the date of the filing of any briefs authorized 
by the arbitrator, whichever date is later, unless the participants and 
the arbitrator agree to some other time limit.
    (e) Arbitration awards. (1)(i) The award in an arbitration 
proceeding under Subpart F of this chapter will include a brief, 
informal discussion of the factual and legal basis for the award.
    (ii) The prevailing participants must file the award with the 
Commission, along with proof of service on all participants.
    (2) The award in an arbitration proceeding will become final 30 days 
after it is served on all parties.
    (3) A final award is binding on the participants to the arbitration 
proceeding.
    (4) An award may not serve as an estoppel in any other proceeding 
for any issue that was resolved in the proceeding. The award also may 
not be used as precedent or otherwise be considered in any factually 
unrelated proceeding or in any other arbitration proceeding.

[Order 578, 60 FR 19507, Apr. 19, 1995, as amended by Order 602, 64 FR 
17099, Apr. 8, 1999]