On Thursday, July 18, 2013, FERC issued Order No. 784, the final rule on third-party provision of ancillary services and the accounting and financial reporting for new electric storage facilities (“Final Rule”).  FERC stated that the Final Rule, which will revise its regulations to reform its “Avista” policy, will provide additional rate flexibility for purchasers and sellers of ancillary services and increase transparency and competition in ancillary services markets.  Specifically, FERC has provided new means by which sellers can demonstrate a lack of market power in third-party sales of ancillary services in order to obtain expanded market-based rate authority for sales of such services.

On July 23, 2013, the United States Court of Appeals for the District of Columbia Circuit (“DC Circuit”) denied energy trader Moussa Kourouma’s challenge to a FERC order that found he violated market behavior rules and ordered him to pay a civil penalty of $50,000.  The DC Circuit rejected Kourouma’s arguments that FERC committed procedural and substantive errors, and instead agreed with FERC’s finding that an evidentiary hearing was unnecessary in this case.

On July 18, 2013, FERC issued a Notice of Proposed Rulemaking (“NOPR”) to explicitly authorize the sharing of non-public operational information between interstate natural gas pipelines and public electric utilities that own, operate, or control transmission facilities for the sale of electric energy in interstate commerce.  The proposal would revise FERC’s regulations to allow for information sharing that the pipeline or utility deems necessary for the purpose of promoting reliable service and operational planning.

On Tuesday, July 16, 2013, FERC ordered Barclays Bank and four of its traders to pay over $487 million for manipulation of electric energy markets in and around California from 2006 to 2008.  Specifically, Barclays was directly assessed $435 million in civil penalties and ordered to disgorge $34.9 million in unjust profits.  Three of the four traders were each assessed a penalty of $1 million, while Scott Connelly was assessed a $15 million penalty.

On July 10, 2013, FERC approved a Stipulation and Consent Agreement (“Agreement”) between the Office of Enforcement (“Enforcement”), the North American Electric Reliability Corporation (“NERC”) and Southwest Power Pool, Inc. (“SPP”), for alleged violations of Reliability Standards in conjunction with SPP’s reliability coordination of the bulk power system.  Following an investigation by Enforcement, SPP was fined $50,000 and required to submit semi-annual compliance filings.

On July 3, 2013, FERC’s Office of Enforcement issued a Staff Notice of Alleged Violations with regard to the deaths of two fishermen in relation to Erie Boulevard Hydropower, L.P.’s (“Erie”) operation of its Oswego River Project, located in the City of Oswego, New York.  The notice indicates that FERC staff has preliminarily determined that Erie violated FERC’s hydropower licensing regulations relating to ensuring public safety in connection with the project, alleging eight separate violations.  The violations include the failure to sound a warning within a reasonable time, safety device failures, and safety protocol omissions.

In an unusual move, on July 9, 2013, FERC announced that the Office of Enforcement will seek information from certain unnamed natural gas marketers concerning those marketers’ natural gas sales activities.  These efforts appear to be connected with the Commission’s November 12, 2012 Notice of Inquiry (“NOI”) on Enhanced Natural Gas Market Transparency in Docket No. RM13-1-000 (see November 16, 2012 edition of the WER), and do not appear to be enforcement actions against the companies from whom information will be sought.