OFFICE OF ADMINISTRATIVE LAW
Special Hearing Rules
Board of Public Utilities
Proposed Readoption with Amendment: N.J.A.C. 1:14
Authorized By: Laura Sanders, Acting Director, Office of Administrative Law.
Authority: N.J.S.A. 52:14F-5.e, f, and g.
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
Proposal Number: PRN 2013-161.
Submit comments by February 14, 2014, to:
Sandra DeSarno Hlatky, Assistant Director
Office of Administrative Law
Quakerbridge Plaza, Bldg. 9
P.O. Box 049
Trenton, New Jersey 08625
The agency proposal follows:
Pursuant to N.J.S.A. 52:14B-5.1.c, the special rules for matters transmitted to the Office of Administrative Law (OAL) by the Board of Public Utilities (Board) will expire on December 4, 2013. In accordance with N.J.S.A. 52:14B-5.1.c(2), submission of this proposal to the Office of Administrative Law extends that expiration date 180 days to June 2, 2014. The Office of Administrative Law (OAL) in consultation with the Board has reviewed these rules and has found them to be necessary, reasonable, and proper for the purpose for which they were originally promulgated. The last amendments to the rules were effective in 2006. Therefore, the Office of Administrative Law proposes to readopt these rules. There is a proposed amendment to the rules, which is discussed below.
The Uniformed Administrative Procedure Rules require an agency head to decide whether to grant a request for interlocutory review of an administrative law judge's order or ruling within 10 days of receiving a request for interlocutory review and, when it determines to conduct a review, to issue a decision no later than 20 days from receipt of the request for review. N.J.A.C. 1:1-14.10(c) and (e). Since 2006, N.J.A.C. 1:14-14.4 has required the Board to determine whether to grant a request for review by the later of 10 days after receiving the request for interlocutory review or at the Boards next regularly scheduled meeting after the 10-day period. The 2006 amendment also required the Board to issue a decision within 20 days of the date it decides to conduct an interlocutory review.
However, the Board continues to experience difficulties in meeting the time requirements for deciding matters when it has determined that interlocutory review is appropriate. At the time of the 2006 amendment, Board meetings were scheduled every two weeks. The Board is now meeting only once a month. Without an amendment of N.J.A.C. 1:14-14.4, there would be instances where the Board would be deprived of the ability to issue a decision on an interlocutory appeal where it has granted the request for review. This problem also stems from the necessity for this multi-member board to decide the issue at a regularly-scheduled open meeting. Further, since the Board has been advised by the Office of the Attorney General that extensions can only be requested by a majority of the members of the multi-member board, requesting extensions for additional time is considerably more cumbersome for this agency than for most other agencies, which can do so upon the signature of a single individual.
Therefore, in order to ensure that the Board is provided an opportunity to render a decision when it has determined that interlocutory review is appropriate, the proposed amendment to N.J.A.C. 1:14-14.4 provides that the Board shall issue a decision no later than the date of the next Board meeting which occurs on or after the 20th day it determines to grant the request for review. Since board meetings are scheduled once monthly, this ensures that the Board will have the opportunity to provide legal notice and to determine the issue at its next board meeting. The proposed amendment was developed in consultation with the Board and ensures that it will have an opportunity to make its decision in an orderly yet reasonably expeditious fashion.
The summary of the subchapters proposed for readoption follows:
Subchapter 1 sets forth the applicability of these rules.
Subchapter 2 defines judge as an administrative law judge, the Board, or a single Commissioner of the Board presiding over a contested case and defines public hearing as a hearing at which the public expresses its view and comments on a subject, rather than a hearing which is evidentiary.
Subchapter 5 states that the Board may be represented by a deputy attorney general or a non-lawyer agency employee.
Subchapter 8 states that the Board must indicate in the transmittal whether it will be a party to the case and whether it will be represented by an employee or a deputy attorney general.
Subchapter 9 provides that a judge may require a party to give notice of the hearing to persons who may be affected by it and may designate the type of notice, including publication and posting. Petitioners who file for authority to exercise the power of eminent domain shall give each known respondent at least 20 days notice of the hearing. The judge may require the utility to secure an appropriate location for a public hearing and to give notice of such hearing. Unless the judge directs otherwise, public hearings are conducted in the evening or at some other time convenient to interested parties. Persons opposing or supporting petitions may testify at public hearings, subject to cross-examination. These individuals will not be noticed of any subsequent hearing unless they qualify as a participant or intervener.
Subchapter 10 permits depositions of a witness whose testimony is prefiled on written notice in a ratemaking proceeding.
Subchapter 14 provides that the judge may require parties to prefile direct testimony in writing and under oath. Cross-examination may be restricted if its purpose is primarily for discovery.
In cases involving orders to show cause or investigative orders, respondents must obtain an original and copy of the transcript, and must provide the judge with a copy within 15 working days of the hearing date. In other cases, the petitioner must obtain the hearing transcript and provide a copy to the judge.
When prefiled testimony is admitted, the witness shall appear at the hearing and be available for cross-examination. A witness may be precluded from testifying when the written testimony has not been filed in accordance with the schedule.
The Board must decide whether to grant a request for interlocutory review by the later of 10 days after receipt of the request or at its next regularly scheduled open meeting after expiration of the 10-day period. To ensure that the Board has an opportunity to render a decision when it has determined that interlocutory review is appropriate, the Board may issue a decision within 20 days of its decision to grant a request for interlocutory review. The Board may extend that timeframe for good cause shown for an additional 20 days if both the Board and the Director of the OAL concur. The proposed amendment to Subchapter 14 changes the timeframe for rendering decisions on an interlocutory review from 20 days to the date of the Board’s next meeting which occurs on or after the 20th day it granted review in order to accommodate the Board’s monthly meetings.
Subchapter 15 concerns the use of prefiled testimony.As the Office of Administrative Law has provided a 60-day comment period in this notice of proposal, this notice is excepted from the rulemaking calendar requirements, pursuant to N.J.A.C. 1:30-3.3(a)5.
The rules permit the fair and efficient hearing process for resolution of issues arising in the Board of Public Utilities. The proposed amendment ensures that the parties will have their requests for interlocutory review considered by the entire Board of Public Utilities during regular Board meetings. It is, therefore, expected that the decision on a request for interlocutory review will be made more deliberately than could be expected in some instances if the time requirement were not modified.
The rules provide an efficient process for the resolution of disputes arising in the Board of Public Utilities, thus minimizing parties' costs. The proposed amendment will not have an additional economic impact on the parties to the hearing process. The proposed amendment will eliminate the need for an extension order in some cases, and will therefore result in some saving of resources for both the Board and the Office of Administrative Law.
Federal Standards Statement
A Federal standards analysis is not required because the contested case hearing procedures, of which the rules proposed for readoption and the proposed amendment are a part, are promulgated in implementation of the New Jersey Administrative Procedure Act, N.J.S.A. 52:14B-1 and 52:14F-1 et seq., and are not subject to any Federal standards or requirements.
The rules proposed for readoption and the proposed amendment will not generate or cause the loss of any jobs.
Agriculture Industry Impact
The rule proposed for readoption and the proposed amendment will not impact on the agriculture industry.
Regulatory Flexibility Analysis
The rules proposed for readoption and the proposed amendment impose no reporting or recordkeeping requirements. A small business, as defined by the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq., may be a party to a Board contested case hearing. As such, the small business, as a petitioner, or as a respondent in cases involving an order to show cause or an investigative order initiated by the Board, may have to bear certain costs, including providing a court reporter for and a transcript of the hearing. Because these requirements are long standing, some are subject to waiver to appropriately allocate costs to the party precipitating the hearing. No lesser requirements are provided for small businesses.
Housing Affordability Impact Analysis
The rules proposed for readoption with amendment will have no impact on housing affordability, as the rules concern contested case hearings arising before the Board of Public Utilities.
Smart Growth Development Impact Analysis
The rules proposed for readoption with amendment will have no impact on housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan, as the rules concern contested case hearings arising before the Board of Public Utilities.
Full text of the rules proposed for readoption may be found in the New Jersey Administrative Code at N.J.A.C. 1:14.
Full text of the proposed amendment follows (additions indicated in boldface thus; deletion indicated in brackets [thus]):
1:14-14.4 Interlocutory review
(a) (No change.)
(b) If the BPU determines to conduct an interlocutory review, the BPU shall issue a decision, order, or other disposition of the review [within 20 days of] no later than the next scheduled Board meeting on or after the 20th day following that determination.
(c) (No change.)