82 FR 10568 - Agency Operations in the Absence of a Quorum; Order Delegating Further Authority to Staff in Absence of Quorum

DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission

Federal Register Volume 82, Issue 29 (February 14, 2017)

[Federal Register Volume 82, Number 29 (Tuesday, February 14, 2017)]
[Notices]
[Pages 10568-10569]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-02943]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No., AD17-10-000]


Agency Operations in the Absence of a Quorum; Order Delegating 
Further Authority to Staff in Absence of Quorum

Before Commissioners: Cheryl A. LaFleur, Acting Chairman; Norman C. 
Bay, and Colette D. Honorable.

I. Introduction

    1. Pursuant to section 401(b) of the Department of Energy 
Organization Act,\1\ the Commission is composed of five members, and 
pursuant to section 401(e) of the Department of Energy Organization 
Act,\2\ ``a quorum for the transaction of business shall consist of at 
least three members present.'' The Commission anticipates that it will 
lack a quorum for an indeterminate period in the near future. The 
Commission also recognizes that it has a continuing responsibility to 
carry out its regulatory obligations under the various statutes that 
the Commission administers, including among other statutes, the Federal 
Power Act (FPA), the Natural Gas Act (NGA), and the Interstate Commerce 
Act (ICA), in an effective and efficient manner consistent with the 
public interest.\3\ For example, companies subject to the Commission's 
jurisdiction will continue to make rate filings under the FPA and NGA 
with the Commission that, in the absence of Commission action, would 
take effect without suspension, refund protection, or the ability for 
protesting parties to appeal.\4\ The Commission's general practice has 
been not to allow such filings to go into effect by operation of law. 
Similarly, the Commission's intention is to ensure that staff has 
authority to prevent such filings from going into effect by operation 
of law during the period in which the Commission lacks a quorum.
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    \1\ 42 U.S.C. 7171(b) (2012).
    \2\ 42 U.S.C. 7171(e) (2012); accord 18 CFR 375.101(e) (2016).
    \3\ 16 U.S.C. 791a et seq.; 15 U.S.C. 717 et seq.; 49 App. 
U.S.C. 1 et seq. (1988).
    \4\ See Public Citizen, Inc. v. FERC, 839 F.3d 1165 (D.C. Cir. 
2016).
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    2. Accordingly, the Commission by this order, issued while the 
Commission has a quorum, delegates further authority \5\ to its staff 
\6\ to take action, as provided below,\7\ effective February 4, 2017. 
The authority delegated herein is effective until such time as the 
Commission again has a quorum and takes action to lift the delegation, 
and in no event will this delegation extend beyond days 14 days 
following the date a quorum is reestablished (Delegation Period).\8\
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    \5\ All pre-existing delegations of authority by the Commission 
to its staff continue to be effective. 18 CFR 375.301-.315 (2016). 
This includes the authority of the Secretary to toll the time for 
action on requests for rehearing. 18 CFR 375.302(v) (2016).
    \6\ This delegation of authority is to the relevant office 
director, but such authority may be further delegated to his or her 
designee consistent with 18 CFR 375.301(b) (2016).
    \7\ As to emergency functions, the Commission will look to the 
Anti-Deficiency Act to guide its decision as to what actions may 
continue to be pursued notwithstanding the absence of a quorum and 
even if it were not to delegate authority to its staff. 
Specifically, the Anti-Deficiency Act allows work to continue even 
during a lapse in appropriations on activities the suspension of 
which would ``imminently threaten the safety of human life or the 
protection of property.'' 31 U.S.C. 1342 (2012); see also 31 U.S.C. 
1341 (2012). Thus, during the Delegation Period even in the absence 
of this delegation of authority to its staff, limited Commission 
operations can continue: inspecting and responding to incidents at 
liquefied natural gas facilities or jurisdictional hydropower 
projects; and other activities involving the safety of human life or 
protection of property.
    \8\ 41 U.S.C. 7171(f) (2012) (authorizing the Commission ``to 
establish such procedural and administrative rules as are necessary 
to the exercise of its functions''); accord, e.g., 15 U.S.C. 717o 
(2012); 16 U.S.C. 825h (2012); see generally 18 CFR 375.301-.315 
(2016) (pre-existing delegations of authority by Commission to its 
staff); cf. NLRB v. Bluefield Hospital Co., LLC, 821 F.3d 534 (4th 
Cir. 2016) (upholding the authority of the Board's staff to act 
pursuant to delegated authority when the Board did not have a 
quorum); Advanced Disposal Services East, Inc. v. NLRB, 820 F.3d 592 
(3d Cir. 2016) (same); UC Health v. NLRB, 803 F.3d 669 (D.C. Cir. 
2015) (same); SSC Mystic Operating Co., LLC v. NLRB, 801 F.3d 302 
(D.C. Cir. 2015) (same).
    The Commission, when previously facing similar circumstances, 
has taken similar action to delegate further authority to its staff 
to act in the absence of a quorum. Order Delegating Authority to the 
Secretary and Certain Office Directors, 63 FERC ] 61,073 (1993).
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II. Delegation of Agency Authority

A. Notice

    3. Given the anticipated loss of a quorum,\9\ an immediate plan for 
the orderly delegation of agency functions to the Commission's staff is 
required. Public notice of this action, otherwise required by 5 U.S.C. 
553(b) (2012), is impracticable because of the timeframe for the 
anticipated loss of quorum. The Commission's requirement to protect the 
public interest creates an immediate need for this action.
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    \9\ At present, the Commission has three sitting members, but 
will lose a quorum after February 3, 2017.
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B. Action on Rate and Other Filings

    4. If the date by which the Commission is required to act on rate 
and other filings\10\ made pursuant to section 4 of the NGA, 15 U.S.C. 
717c (2012), section 205 of the FPA, 16 U.S.C. 824d (2012), and section 
6(3) of the ICA, 49 App. U.S.C. 6(3) (1988), falls during the 
Delegation Period, the Commission in this order delegates to its staff 
(a delegation to the Director of the Office of Energy Market Regulation 
(OEMR)) the further authority: (1) o accept and suspend such filings 
and to make them effective, subject to refund and further order of the 
Commission;\11\ or (2) 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 
pursuant to section 205 of the FPA, for which suspension and refund 
protection are unavailable, we also delegate to Commission staff 
authority, pursuant to section 206 of the FPA,\12\ to institute a 
proceeding to protect the interests of customers.
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    \10\ Decisions made pursuant to delegated authority may be 
challenged on rehearing, see 18 CFR 385.1902 (2016), and authority 
to act on requests for rehearing is not being delegated (authority 
to issue tolling orders already rests with the Secretary, see supra 
note 5), and so timely requests for rehearing will be addressed when 
the Commission again has a quorum.
    \11\ The acceptance for filing and suspension and making 
effective subject to refund and to further Commission order of these 
filings is without prejudice to any further action of the Commission 
with respect to these filings once the Commission again has a 
quorum.
    \12\ 16 U.S.C. 824e (2012).
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C. Extensions of Time

    5. The Commission delegates the authority to extend the time for 
action on matters where such extension of time is permitted by statute.

D. Waiver Requests

    6. During the Delegation Period, the Commission in this order 
delegates to its staff (a delegation to the Director of OEMR) the 
further authority to take appropriate action on uncontested filings 
made pursuant to section 4 of the NGA, 15 U.S.C. 717c (2012), section 
205 of the FPA, 16 U.S.C. 824d (2012), and section 6(3) of the ICA, 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, e.g., capacity release and capacity market rules.

E. Uncontested Settlements

    7. During the Delegation Period, the Commission in this order 
delegates to its staff (a delegation to the Director of

[[Page 10569]]

OEMR) the further authority to accept settlements not contested by any 
party or participant, including Commission Trial Staff, filed pursuant 
to Rule 602 of the Commission's Rules of Practice and Procedure, 18 CFR 
385.602 (2016).\13\
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    \13\ See, e.g., 16 U.S.C. 824b(a)(5) (2012) (providing for 
extensions of 180-day period for consideration of FPA section 203 
filings); 18 CFR 375.302(a)(2)(vi) (2016) (providing for extensions 
of time to consider FPA section 215 Notices of Penalties).
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The Commission Orders
    (A) The Commission hereby delegates to its staff further authority 
to act, effective February 4, 2017, until the Commission again has a 
quorum, as discussed in the body of this order.
    (B) The Secretary is hereby directed to promptly publish this order 
in the Federal Register.

    By the Commission.

    Issued: February 3, 2017.
Kimberly D. Bose,
Secretary.
[FR Doc. 2017-02943 Filed 2-13-17; 8:45 am]
 BILLING CODE 6717-01-P