While some progress was reported over the past weekend, the budget debate continues in Congress as the critical date of March 4, 2011, draws nearer. On March 4, 2011, the “stop-gap” measure currently in place to fund the government will expire. 

In the event of a government shutdown, there are essential services which must still be provided. Certain kinds of work may continue under guidelines from the Office of Management and Budget (“OMB”).  In 1980, the OMB established guidelines for “Agency Operations in the Absence of Appropriations.”¹ These guidelines enable agencies to continue to provide for national security, benefit payments, and protection of life and property, among other activities. Further, under these guidelines, agencies “should continue activities that: ensure protection of power and maintenance of the power distribution system.”² 

In the Case of a Government Shutdown- What Happens at FERC?

Emergency conditions³ such as a government shutdown could cause FERC to institute its Continuity of Operations Plan (“COOP”),⁴ developed to address emergency conditions lasting up to 30 days where Commission headquarters operations are “temporarily disrupted or communications may be temporarily unavailable.”⁵ If emergency conditions commence, FERC’s regulations will automatically, as described in more detail below: (1) toll for purposes of further consideration time periods for certain Commission actions that will be required during the emergency; (2) suspend certain requirements; and (3) delegate authority to specified staff. ⁶ The Commission also has procedures in place through the COOP to notify the public that the COOP has been activated, with further notification when normal operations have resumed.⁷

(1) Tolling of Time Periods for Commission Action and Rate Filings

In the event of emergency conditions, FERC regulations will toll the following:

• 180 day period for acting on applications under § 203 of the Federal Power Act;
• 60 day time period for acting on requests for Exempt Wholesale Generator or Foreign Utility Company status;
• 60 day period for acting on interlocking directorate applications;
• 90 day period for acting on requests for certification of qualifying facility status;
• 60 day period for acting on holding company and transaction exemptions and waivers;
• 150 day period for acting on intrastate pipeline applications for approval of proposed rates;
• the period ending 60 days prior to the ERO’s fiscal year for acting on the ERO’s budget;
• 60 day period for acting on notifications that a Reliability Standard may conflict with a function, rule, order, tariff, rate schedule or agreement;
• 60 day period for acting on applications for review of a penalty imposed by the ERO for violation of a reliability standard;
• 45 day Protest for protesting Prior Notice Filings, and the 30 day period for resolving and filing to withdraw such Protests;
• 30 day period for acting on requests for rehearing; and
• time periods prescribed in 18 C.F.R. §§ 385.714-715 for acting on interlocutory appeals and certified questions.⁸

In addition to tolling of time periods for Commission action, if the date by which the Commission is required to act on filings under (1) section 4 of the Natural Gas Act, (2) section 205 of the Federal Power Act, and (3) section 6(e) of the Interstate Commerce Act falls during periods of the emergency, such filings are deemed to be accepted and suspended and made effective on the requested effective date, subject to refund and further order of the Commission.⁹

(2) Suspension of Certain Requirements

During emergency conditions, the Commission will suspend:

• filings to comply with Commission orders; including orders issued byAdministrative Law Judges;
• filings required to be made by a date certain under the Commission’s regulations or orders;
• motions to intervene and protests, and notices of intervention;
• comments responding to proposed rulemakings or technical conferences;
• responses to data requests;
• self-reports of violations;
• responses to staff audit reports;
• contacts with the Commission’s Enforcement hotline;
• accounting filings required by the Commission’s Uniform Systems of Accounts;
  and
• forms, reports, and submissions required to be filed by a date certain.¹⁰

(3) Delegations of Authority

During emergency conditions, if a quorum of the Commission is available, the Commission shall function as usual.  If not, all functions of the Commission are delegated to the Commissioner or Commissioners who are available and capable of acting, regardless of whether there is a quorum.¹¹  If there is no Commissioner available and capable of acting, the first five members of the Commission staff as set forth in the following list that are available and capable of acting are delegated the authority:

• The Executive Director;
• Director of the Office of Energy Market Regulation;
• Director of the Office of Energy Projects;
• Director of the Office of Electric Reliability;
• General Counsel;
• Director of the Office of Enforcement;
• Deputy Directors, Office of Energy Market Regulation, in order of seniority;
• Deputy Directors, Office of Energy Projects, in order of seniority;
• Deputy Directors; Office of Electric Reliability, in order of seniority;
• Deputy General Counsels, in order of seniority;
• Associate General Counsels and solicitor, in order of seniority;
• Assistant Directors and Division heads, Office of Energy Market Regulation; Assistant Directors and Division heads, Office of Energy Projects; Assistant Directors and Division heads, Office of Electric Reliability; Deputy Associate General Counsels; and Assistant Directors and Division heads, Office of Enforcement; in order of seniority.¹²

In the event the Commission must act under delegated authority, actions taken by delegations under this section are subject to reconsideration by the Commission, acting with a quorum, within thirty days after the date upon which public notice is given that a quorum of the Commission is reconstituted and functioning.¹³ Further, if the Chairman is not available and capable of acting because of emergency conditions, his functions are delegated to the Commissioner available and capable of acting who is designated by the President.¹⁴

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 ¹U.S. Executive Office of the President, Office of Management and Budget, Memorandum from the Director of OMB to the Heads of Executive Departments and Agencies, Agency Operations in the Absence of Appropriations. (Washington: September 30, 1980), pp. 1-2. 

²Id.

³Emergency conditions shall commence among other reasons, “at such time that the Commission’s Continuity of Operations Plan is activated; and shall continue until the Commission is officially notified of the end of such conditions.” 18 C.F.R. § 376.201 (2010).

⁴The Continuity of Operations Plan is available at:  http://www.ferc.gov/coop.asp. In the event that the headquarters building is closed, the COOP would be activated, and the core Commission mission essential functions would continue at www.fercalt.gov.  

 ⁵In addition, FERC’s regulations will also: (1) accept and suspend pending filings requiring Commission action by a date certain; (2) stay penalties imposed by the Electric Reliability Organization (“ERO”); (3) stay the effectiveness of a State action pending further action by the Commission; and (4) not initiate an enforcement action under the Public Utility Regulatory Policies Act of 1978.Order No. 680, Commission Procedures During Periods of Emergency Requiring Activation of Continuity of Operations Plan, 116 FERC ¶ 61,064, P 1 (2006); supplemented by, Order No. 738, Supplement to Commission Procedures During Periods of Emergency Operations Requiring Activation of Continuity of Operations Plan, 132 FERC ¶ 61,107 (2010).

⁶Id.at PP 2-10.

⁷Id.at P 11. Press releases will be sent to major wire services, industry press, and appropriate metropolitan area radio stations announcing that the Commission has activated the COOP Plan.

⁸Id.at P 5; 18 C.F.R. § 376.209(c)(2010).

⁹18 C.F.R. § 376.209(e)(2010).

¹⁰Supra n. 5 at P 6; 18 C.F.R. § 376.209(d)(2010).

¹¹18 C.F.R. § 376.204 (a)(2010).

¹²18 C.F.R. § 376.204 (b)(2010).

¹³18 C.F.R. § 376.204 (c)(2010).

¹⁴18 C.F.R. § 376.205 (2010).