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Apr 07, 2020

FERC Announces Additional Policies and Procedures in Response to COVID-19 Emergency

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FERC ANNOUNCES ADDITIONAL POLICIES AND PROCEDURES IN RESPONSE TO COVID-19 EMERGENCY

Last Thursday, in a number of separate orders, notices and statements, the Federal Energy Regulatory Commission (FERC) announced new and supplemental policies to assist companies subject to FERC’s jurisdiction in meeting regulatory obligations and ensuring business continuity of their operations during the COVID-19 national emergency.

Also last week, a fourth FERC commissioner was sworn in.

Policy Statement on Business Continuity of Energy Infrastructure

In a Statement of Policy, FERC recognized that regulated entities may “have questions about their ability to meet regulatory requirements and/or recover the expenses necessary if they take steps to safeguard the business continuity of their systems during the national emergency.” FERC stated that it will give its “highest priority” to filings made for the purpose of ensuring the business continuity of the energy infrastructure of regulated entities during the COVID-19 emergency, and assured entities subject to its regulation that it will “expeditiously review and act on requests for relief, including but not limited to, requests for cost recovery necessary to assure business continuity of the entities’ energy infrastructure in response to the national emergency.”[1]

Enforcement and Compliance Activities

FERC Chairman, Neil Chatterjee, also announced that FERC’s Enforcement staff will take the COVID-19 emergency into account when evaluating compliance programs as part of its analyses under FERC’s Penalty Guidelines in assessing penalties for violations of statutes and regulations under FERC jurisdiction, or as part of an audit of operations taking place during the emergency. Enforcement staff also will take the COVID-19 emergency into account in assessing the timeliness of self-reports of violations of statutes, regulations and tariffs, including the credit for self-reports provided under the Penalty Guidelines. Chatterjee also announced the creation of two FERC staff task forces to process standards of conduct waiver requests and no-action letters, and confirmed that the COVID-19 pandemic qualifies as an emergency triggering the suspension of certain standards of conduct posting requirements. Under FERC’s regulations, if an entity faces a disruption for more than one month and cannot resume standards of conduct posting obligations as a result of COVID-19, it should file a waiver request with FERC.

Chatterjee further announced that FERC Enforcement staff will not begin any new audits until July 31, 2020, and will only contact entities regarding surveillance inquiries that involve market behavior that could result in significant risk of harm to the market, requiring immediate attention. However, Chatterjee emphasized that FERC will “remain vigilant” during the COVID-19 emergency and “will continue its market surveillance efforts to protect market participants and consumers from the effects of anti-competitive behavior.”

Filing Deadlines and Other Requirements

FERC issued a notice supplementing its March 19 notice granting an extension of time, until May 1, 2020, deadlines to make non-statutory filings required by FERC that occur on or before May 1, 2020, for entities unable to meet certain deadlines due to steps they have taken to meet the emergency conditions caused by COVID-19.[2] FERC clarified that its prior extension notice includes answers to complaints and orders to show cause, as well as initial and reply briefs in paper hearings before FERC, with deadlines occurring on or before May 1, 2020.

FERC also waived, through May 1, 2020, its regulations governing the form of filings submitted to FERC, such as supporting certain filings with a sworn declaration, to the extent entities are unable to meet those requirements due to emergency conditions caused by COVID-19. FERC also shortened from five days to three business days, the period to answer motions filed with FERC requesting an extension of time due to emergency conditions caused by COVID-19. FERC stated that these extensions of time do not apply to proceedings currently before FERC Administrative Law Judges (ALJ).

FERC also said that it would consider requests to shorten from 21 days to as few as five days the comment period for motions seeking waiver of requirements set forth in FERC orders, regulations, tariffs, rate schedules and service agreements in response to emergency conditions.

FERC issued a Notice extending until June 1, 2020, the deadlines for filing FERC Form Nos. 60 (Annual Report of Centralized Service Companies) and 61 (Narrative Description of Service Company Functions), FERC Form No. 552 (Annual Report of Natural Gas Transactions) and Electric Quarterly Report Form-920 that occur on or before June 1, 2020.[3]

FERC also issued under Section 206 of the Federal Power Act, a blanket waiver, effective from April 2 through September 1, 2020, of requirements to hold meetings in-person and/or to provide or obtain notarized documents in Open Access Transmission Tariffs (OATT) and any other tariff, rate schedule, service agreement or contract subject to FERC’s jurisdiction.[4] FERC noted that, other than the in-person requirement, required meetings still must be held consistent with the OATT, but should be conducted by other means, such as telephonically. FERC also noted that alternatives to notarization, such as electronic signatures, are available.

FERC also issued an order extending, until October 20, 2020, the time period for FERC-approved regional transmission organizations (RTOs) and independent system operators (ISOs) to post Uplift Reports and Operator Initiated Commitment Reports that otherwise would have been required to be posted between April 2020 and September 2020.[5]

Delegated Authority 

FERC delegated to the Director of its Office of Energy Market Regulation, until June 1, 2020, authority to act on uncontested requests for prospective waivers of requirements set forth in FERC orders, regulations, tariffs, rate schedules and service agreements to address needs due to steps movants take in response to COVID-19.[6] In delegating this authority, FERC acknowledged that the need for efficient processing and action is particularly important, as regulated entities may need to seek waiver of various requirements with which they are unable to comply due to the emergency conditions.

FERC also delegated authority to the Director of the Office of Energy Policy and Innovation to take appropriate action on uncontested motions for extension of time to file, or requests or petitions for waiver of the requirements of, FERC Form 552 (Annual Report of Natural Gas Transactions) and FERC-730 (Report of Transmission Investment Activity).[7] FERC found that this delegation of authority will allow for more efficient processing of and action on such uncontested motions and requests.

New FERC Commissioner

On March 31, James Danly, previously FERC’s General Counsel, was sworn in as a Republican member of FERC, for a term that ends on June 30, 2023. The term of Commissioner Bernard McNamee ends on June 30, 2020, so the appointment and confirmation of Commissioner Danly likely will ensure a quorum of three commissioners at FERC after the departure of Commissioner McNamee.

Footnotes

[1]  Business Continuity of Energy Infrastructure, Statement of Policy, 171 FERC ¶ 61,007 (Apr. 2, 2020).
[2]  Extension of Non-Statutory Deadlines, Supplemental Notice Granting Extension of Time for Non-Statutory Deadlines, Waiving Regulations, and Shortening Answer Period, Docket No. AD20-11-000 (Apr. 2, 2020).
[3]  Extension of Non-Statutory Deadlines, et al., Notice Granting Extension of Time, Docket Nos. AD20-11-000, et al. (Apr. 2, 2020).
[4]  Temporary Action to Facilitate Social Distancing, Order Granting Blanket Waiver of In-Person Meeting and Document Notarization Requirements, 171 FERC ¶ 61,004 (Apr. 2, 2020).
[5]  Uplift Cost Allocation and Transparency in Markets Operated by Regional Transmission Organizations and Independent System Operators, Order Extending Time for Posting Required Reports, 171 FERC ¶ 61,005 (Apr. 2, 2020).
[6]  Delegated Authority, Order Temporarily Delegating Further Authority, 171 FERC ¶ 61,006 (Apr. 2, 2020).
[7]  Delegation of Authority, Order No. 870, Final Rule, 171 FERC ¶ 61,008 (Apr. 2, 2020).

Authors and Contributors

Donna J. Bobbish

Counsel

Project Development & Finance

+1 202 508 8089

+1 202 508 8089

Washington DC

Robert Freedman

Partner

Project Development & Finance

+1 212 848 4340

+1 212 848 4340

New York