Following Bay’s resignation, FERC issues order delegating additional authority to staff

According to the Code of Federal Regulations, a quorum for the transaction of business consists of at least three members present

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FERC said that it has issued an order delegating additional authority to agency staff to continue certain agency operations in the absence of a quorum of commissioners.

As TransmissionHub reported, former FERC Chairman Norman Bay, in a Jan. 26 letter to President Donald Trump, said he is resigning his appointment from FERC, effective as of Feb. 3, and, as noted in a Jan. 26 FERC statement, Trump has named FERC Commissioner Cheryl LaFleur acting chairman.

Prior to Bay’s resignation, there were already two vacancies at FERC, following the departures of former Commissioners Philip Moeller and Tony Clark. According to the Code of Federal Regulations, a quorum for the transaction of business consists of at least three members present.

FERC said in its Feb. 3 statement that the delegation order, which took effect on Feb. 4, also affirms that all pre-existing delegations of authority by FERC to its staff continue to be effective. The additional authority granted to agency staff will last until FERC again has a quorum and moves to lift the delegation order, FERC said, adding that the delegation period will not extend beyond 14 days following the date a quorum is re-established.

FERC said that when regulated entities make rate filings under the Federal Power Act or Natural Gas Act that, in the absence of FERC action, would take effect without suspension, refund protection or the ability for protesting parties to appeal, FERC’s general practice has been not to allow that to happen. By issuing the order, FERC said that it intends to ensure that its staff has authority to prevent such filings from taking effect by operation of law during the no-quorum period.

According to the order, if the date by which FERC is required to act on rate and other filings made under section 4 of the Natural Gas Act, 15 U.S.C. § 717c (2012), section 205 of the Federal Power Act, 16 U.S.C. § 824d (2012), and section 6(3) of the Interstate Commerce Act, 49 App. U.S.C. § 6(3) (1988), falls during the delegation period, FERC delegates to its staff (a delegation to the director of the Office of Energy Market Regulation (OEMR)) this authority: to accept and suspend such filings and to make them effective, subject to refund and further order of FERC; or to accept and suspend such filings and to make them effective, subject to refund, and to set them for hearing and settlement judge procedures.

For initial rates or rate decreases filed under section 205 of the Federal Power Act, for which suspension and refund protection are unavailable, FERC said that it also delegates to staff authority, under section 206 of the Federal Power Act, to institute a proceeding to protect the interests of customers.

FERC said that it delegates the authority to extend the time for action on matters where such extension of time is permitted by statute.

During the delegation period, FERC said that it delegates to its staff (a delegation to the director of OEMR) the further authority to take appropriate action on uncontested filings made under section 4 of the Natural Gas Act, 15 U.S.C. § 717c (2012), section 205 of the Federal Power Act, 16 U.S.C. § 824d (2012), and section 6(3) of the Interstate Commerce Act, 49 App. U.S.C. § 6(3) (1988), seeking waivers of the terms and conditions of tariffs, rate schedules and service agreements, including waivers related to capacity release and capacity market rules.

FERC also said that during the delegation period, it delegates to its staff (a delegation to the director of OEMR) the authority to accept settlements not contested by any party or participant, including FERC trial staff.

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