On April 2, 2020, FERC issued several orders aimed at helping regulated entities manage compliance deadlines and related issues in the wake of COVID-19 response. Chairman Neil Chatterjee also issued a press release confirming the pandemic qualifies as an emergency under the Commission’s rules and detailing additional steps in FERC’s plan to help regulated entities manage potential enforcement and compliance-related burdens during the pandemic, including two new task forces to expedite standards of conduct waiver requests and no-action letters.
While Chairman Chatterjee confirmed that FERC will not be second-guessing “good-faith actions taken by regulated entities in the face of this emergency,” he stressed that FERC “will remain vigilant during this challenging period and will continue market surveillance to protect market participants and consumers . . . .”
Today’s actions are the latest in a series of steps the Commission has taken to address compliance and other issues arising from entities’ COVID-19 response (see March 31, 2020 edition of the WER). FERC explained that the receipt of motions and other requests for relief from regulatory burdens prompted a review of the agency’s procedural regulations to ensure that FERC’s work continues efficiently. In response, FERC issued the following orders and statements:
- Business Continuity of Energy Infrastructure Policy Statement (Docket No. PL20-5-000) FERC confirmed it will expeditiously review and act on requests for relief in response to COVID-19, giving filings submitted to assure business continuity of regulated entities’ energy infrastructure its highest priority. This includes requests for cost recovery necessary to assure business continuity. FERC explained that it understood that regulated entities may need to implement new procedures, and potentially update and/or suspend existing procedures due to unprecedented actions like directing staff to work remotely for an extended period.
- Delegation of Authority (Docket No. RM20-13-000; Order No. 870) FERC revised its regulations to delegate additional authority to staff to take appropriate action on motions for extension of time to file and requests or petitions for waiver of FERC Form 552 (Annual Report of Natural Gas Transactions) and FERC-730 (Report of Transmission Investment Activity) requirements.
- Order Temporarily Delegating Further Authority (Docket No. AD20-13-000) FERC issued an order temporarily delegating authority to its staff to take appropriate action on uncontested requests or petitions requesting prospective waivers of requirements set forth in Commission orders, regulations, tariffs, rate schedules, and service agreements to address needs due to steps movants take in response to COVID-19. The delegated authority will remain in place until June 1, 2020.
- Order Granting Blanket Waiver of In-Person Meeting and Document Notarization Requirements (Docket No. EL20-37-000) Citing two requests made from regulated utilities and guidance from public health officials on social distancing, FERC found good cause to provide a blanket waiver of any requirement in a FERC-jurisdictional tariff, rate schedule, service agreement, or contract to either hold an in-person meeting or obtain a notarized document. The waiver will remain in place until September 1, 2020. The Commission also clarified that this waiver only applies to the in-person requirement, and that “such meetings must still be held . . . , but should be conducted by other means, such as telephonically.”
- Order Extending Time for Posting Required Reports (Docket No. RM17-2-000) FERC found good cause, upon its own motion, to extend the time period for posting all Uplift Reports and Operator Initiated Commitment Reports that otherwise would have been required to be posted between April 2020 and September 2020, until October 20, 2020. FERC confirmed that FERC-approved Regional Transmission Organizations and Independent System Operators were not prohibited from posting these reports before October 20, 2020 or from seeking further extension of time if needed.
Chairman Chatterjee highlighted two procedural options to obtain more formal guidance, namely Standards of Conduct waivers and no-action letters, and announced the creation of two new task forces to expeditiously process any such requests. Contact information and enhanced procedures have been added to FERC’s website. Chairman Chatterjee also confirmed that the COVID-19 pandemic qualifies as an emergency, which triggers the suspension of certain Standards of Conduct posting requirements in FERC’s regulations. Under those 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.
Chairman Chatterjee also announced that Office of Enforcement (“OE”) staff will be in communication with the subjects of investigations and audits to provide flexibility with discovery and/or compliance deadlines and will delay beginning any new audits until July 31, 2020. As for surveillance inquiries, OE staff will prioritize inquiries that involve market behavior that could result in significant risk of harm to the market, postponing all other inquiries. Self-reports involving inadvertent errors that do not produce significant harm to the markets, ratepayers, or other market participants have also been delayed for 60 days.
A copy of FERC’s orders and public messages on COVID-19 are available here.