On April 2, 2020, FERC announced additional measures to provide flexibility to regulated entities responding to COVID-19 emergency conditions that disrupt, complicate, or change their normal business operations. We recently reported on FERC’s initial suite of temporary operational changes in response to COVID-19 here.
These new changes provide incremental, additional flexibility for regulated companies. Among these are promises of expedited internal processes to review requests for regulatory relief (including recovery of costs related to energy infrastructure business continuity measures), relaxation of the Standards of Conduct, plus additional extensions of time. We highlight some changes of particular note below.
FERC issued a formal policy to expedite processing of filings made to assure business continuity, including requests for cost recovery. By adopting this policy the Commissioners signaled to the industry that they are receptive to requests to recover the additional costs of maintaining the energy infrastructure during this period and that FERC staff should prioritize these requests.
To facilitate this, in a separate order the Commissioners delegated temporary authority to the staff to act on uncontested requests for prospective waivers of tariff or regulatory requirements to respond to COVID-19. This authority remains in place until June 1, 2020. That order can be viewed here.
Standards of Conduct
In a news release, the agency conveyed Chairman Chatterjee’s announcement that the pandemic qualifies as an emergency triggering the Standards of Conduct provisions for the suspension of posting requirements. If the disruption lasts more than one month, the electric utility or gas pipeline must request a waiver.
FERC has created a staff task force to expedite the processing of requests for waiver of the Standards of Conduct. Information from FERC on those waivers can be found here.
Enforcement & Audit Deferrals
Chairman Chatterjee announced that prosecutorial discretion will be exercised to relax the timing of enforcement compliance obligations through July 31, 2020, and that the start of new audits will be deferred until after that date. However, the announcement noted that the staff will keep up its usual market monitoring and surveillance.
A staff task force has been created to expedite requests for No-Action Letters. Information on those measures can be found on FERC’s website here.
Extension of Time and Waiver of Filing Requirements
Extensions to May 1, 2020, have been given for all non-statutory pleadings due before that date (excluding ALJ proceedings) and formal filing requirements, such as notarization, are also waived through May 1, 2020. Extensions to June 1, 2020 have been given for certain reports (Form Nos. 60, 61, 552, EQR Form-920).
Blanket Waivers of OATTs and Tariffs
To facilitate social distancing, FERC granted a blanket waiver of any OATT or other tariff requirements to hold in-person meetings or to provide notarized statements. FERC’s order on the waivers can be viewed here.
Extension for RTO/ISO Postings
RTOs/ISOs have been given an extension to October 20, 2020, to post the Uplift Reports and Operator Initiated Commitment Reports that were due to be posted between April 2020 and September 2020 to the publicly available portions of their websites. That order can be viewed on FERC’s website here.
The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.
DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.