On September 4, 2018, the U.S. Senate passed, by voice vote, two bills related to FERC’s authority under the Federal Power Act (“FPA”). One bill, S. 186, would allow challenges to rate changes that would automatically go into effect when FERC is deadlocked. The other bill, H.R. 1109, changes the monetary thresholds for determining when a proposed merger or acquisition requires FERC approval.
Under S. 186, the U.S. Senate proposed that “any inaction…that allows a rate change to go into effect shall be treated as an order…for purposes of rehearing and court review.” Specifically, S. 186 provides that if the 60-day review period under FPA section 205 expires because of a 2-2 split among FERC Commissioners, the failure to act would be considered an order issued by FERC accepting the section 205 filing, allowing challengers to request rehearing. Additionally, S. 186 states that if FERC subsequently fails to act on the request for rehearing within 30 days due to a 2-2 deadlock, challengers may appeal under FPA section 313(b). S. 186 now must pass the U.S. House of Representatives.
Separately, on June 12, 2017, the U.S. House of Representatives passed H.R. 1109, which would amend FPA section 203, regarding public utility mergers and acquisitions (see June 21, 2017 edition of the WER). Under current FERC precedent, there is no monetary threshold for purchases of jurisdictional facilities by public utilities pursuant to FPA section 203(a)(1)(B) — including, for example, the purchase by a public utility of minor transmission equipment. Under H.R. 1109, FERC authorization would only be required for approval of such purchases when the value of the transaction is in excess of $10 million. H.R. 1109 also directs FERC to issue and order that would require utilities to notify FERC when a purchase is in excess of $1 million but less than $10 million. On September 4, 2018, the U.S. Senate passed H.R. 1109 with added language requiring FERC to submit a report to Congress assessing the bill’s impacts. H.R. 1109 is currently with the U.S. House of Representatives for reconciliation.