On April 2, the Federal Energy Regulatory Commission (“FERC” or the “Commission”) took several additional actions in response to the COVID-19 pandemic. These actions supplemented FERC’s previous actions on March 19. In addition to the actions identified below, Chairman Chatterjee highlighted two additional procedural options for obtaining more formal enforcement or compliance-related guidance: standards of conduct waivers and no-action letters. Two FERC staff task forces were created to expeditiously process standards of conduct waiver requests and no-action letters, and contact information is available for the appropriate staff on FERC’s website: here, here, and here.
- Business Continuity of Energy Infrastructure: FERC issued a policy statement assuring regulated entities that it would “expeditiously review and act on requests for relief, including but not limited to, requests for cost recovery necessary to assure business continuity of the regulated entities’ energy infrastructure in response to the national emergency.” FERC stated that it would give highest priority to filings related to ensuring business continuity of energy infrastructure.
- Extension for Q1 EQRs and Form Nos. 60, 61, and 552: FERC issued a notice extending to June 1, 2020 the deadline for submitting the following reports that would have been due on May 1, 2020: Q1 Electronic Quarterly Report Form No. 920, Form Nos. 60 and 61 (Annual Report of Centralized Service Companies and its alternative, Narrative Description of Service Company Functions), and Form No. 552 (Annual Report of Natural Gas Transactions).
- Additional Extensions of Time: FERC issued a supplemental notice extending deadlines to May 1, 2020 for the following categories of documents with deadlines on or before May 1, 2020 for entities unable to meet deadlines due to steps they have taken to meet the emergency conditions caused by COVID-19: (1) answers to complaints and orders to show cause; (2) initial and reply briefs in paper hearings before the Commission; (3) interventions, protests, or comments to a complaint; and (4) briefs on and opposing exceptions to an initial decision. The extensions do not apply to proceedings before Administrative Law Judges.
- Shortened Answer and Comment Periods for Extension and Waiver Requests: FERC shortened the answer period from five days to three business days for motions requesting an extension of time due to the emergency conditions. FERC also stated that it would consider requests to shorten the comment period from 21 days to as short as five days for motions seeking waiver of requirements set forth in FERC orders, regulations, tariffs, rate schedule, and service agreements.
- Waiver of Certain Form of Filing Requirements: FERC waived through May 1, 2020 regulations governing the form of filings (such as those requiring sworn declarations) to the extent entities are unable to meet those requirements due to the emergency conditions.
- Delegated Authority for Extensions and Waivers of FERC Form Nos. 552 and 730: FERC revised its regulations to delegate authority to the Director of the Office of Energy Policy and Innovation to act on requests for extensions of time or waiver of the requirements of Form No. 552 (Annual Report of Natural Gas Transactions) and Form No. 730 (Report of Transmission Investment Activity).
- Delegated Authority for Uncontested Prospective Waivers: FERC delegated authority to the Director of the Office of Energy Market Regulation to take action on uncontested requests for prospective waivers of requirements set forth in FERC orders, regulations, tariffs, rate schedules, and service agreements to address responses to COVID-19. This authorization is limited to requests and petitions filed pursuant to section 4 of the Natural Gas Act, section 205 of the Federal Power Act, and section 6(3) of the Interstate Commerce Act.
- Extension for Certain RTO/ISO Reports: FERC extended the time for RTOs/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 until October 20, 2020.
- Waiver of Requirements for In-Person Meetings and Notarized Documents: FERC granted a blanket waiver of all requirements to hold meetings in-person and to provide or obtain notarized documents in any tariff, rate schedule, service agreement, or contract subject to FERC’s jurisdiction under the Federal Power Act, the Natural Gas Act, or the Interstate Commerce Act through September 1, 2020. Such meetings should be held telephonically instead.
- Suspension of Standards of Conduct Posting Requirements: FERC confirmed that the pandemic qualifies as an emergency, triggering 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 the emergency, it should file a waiver request.
- Delayed Self-Reports: FERC announced that entities may delay the submission of self-reports that “involve inadvertent errors producing no significant harm to the markets, ratepayers or other market participants” for 60 days. Staff will take the crisis into account when evaluating the timeliness of self-reports under the Penalty Guidelines.
- New and Ongoing on Enforcement Actions: Enforcement staff will not begin any new audits until July 31, 2020. Enforcement staff will only contact entities regarding surveillance inquiries that “involve market behavior that could result in significant risk of harm to the market and thus require immediate attention.” Inquiries that do not require immediate attention will be postponed. Enforcement staff will be in communication with entities that are the subject of ongoing non-public investigations and audits, and entities with continuing compliance obligations from completed enforcement cases. Enforcement staff will work with entities to provide flexibility with discovery or other deadlines through July 31, 2020. Staff will take the crisis into account when evaluating compliance programs as part of audits for operations taking place during the emergency.
If you have any questions regarding your compliance obligations or deadlines, please do not hesitate to reach out to your Stoel Rives LLP contacts.