Scoping Memo
The preliminary scoping memo included in the initial rulemaking order determined this would be a quasi-legislative proceeding and no formal hearings would be needed. 95 No party has stated an objection to our preliminary categorization. The preliminary determination not to hold formal hearings was not subject to appeal.
The rulemaking order also required parties to make offers of proof with their opening comments for any matters for which they believed a hearing was required to receive testimony regarding adjudicative facts, and failure to do so would waive the parties' right to hearing. The issues addressed in this interim order are the issues set forth in the preliminary scoping memo, and the proposal to curtail the Commission-sanctioned limitation of liability was the only matter for which offers of proof were submitted. Some parties in subsequent rounds of comments requested hearings, but after reviewing those requests we have determined that no hearings are needed for this phase of the proceeding.
We conclude that it is not necessary to disturb the determinations in our preliminary scoping memo. We reserve for later the question of whether to hold adjudicative hearings in the next phase of the proceeding.
95 Under Rule 8(f)(2), "'Formal hearing' generally refers to a hearing at which testimony is offered or comments or argument taken on the record... In a quasi-legislative proceeding, `formal hearing' includes a hearing at which testimony is offered on legislative facts, but does not include a hearing at which testimony is offered on adjudicative facts." And, under Rule 8(f)(3), "`Legislative facts' are the general facts that help the tribunal decide questions of law and policy and discretion." Under Rule 8(f)(1), "`Adjudicative facts' answer questions such as who did what, where, when, how, why, with what motive or intent."
