Rule2024-03609
Enforcement of Statutes, Orders, Rules, and Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 26, 2024
Effective
February 26, 2024
Issuing agencies
Energy DepartmentFederal Energy Regulatory Commission
Abstract
The Federal Energy Regulatory Commission revises its process for resolving by settlement investigations pursuant to the Commission's regulations. Pursuant to this policy statement, the Commission grants the Director of Enforcement the discretion to authorize Office of Enforcement staff to engage in settlement negotiations without first seeking settlement authority from the Commission. When Office of Enforcement staff receives a viable offer of settlement from the subject of an investigation, it will present that offer to the Commission for voting, as is the case now. While the new process grants Office of Enforcement staff new discretion to commence settlement negotiations, it does not change the fact that it is the Commission that ultimately determines whether any proposed settlement of an investigation is in the public interest.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 38 (Monday, February 26, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 38 (Monday, February 26, 2024)]
[Rules and Regulations]
[Pages 13975-13979]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-03609]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 1b
[Docket No. PL24-2-000]
Enforcement of Statutes, Orders, Rules, and Regulations
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Policy statement.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission revises its process
for resolving by settlement investigations pursuant to the Commission's
regulations. Pursuant to this policy statement, the Commission grants
the Director of Enforcement the discretion to authorize Office of
Enforcement staff to engage in settlement negotiations without first
seeking settlement authority from the Commission. When Office of
Enforcement staff receives a viable offer of settlement from the
subject of an investigation, it will present that offer to the
Commission for voting, as is the case now. While the new process grants
Office of Enforcement staff new discretion to commence settlement
negotiations, it does not change the fact that it is the Commission
that ultimately determines whether any proposed settlement of an
investigation is in the public interest.
DATES: This policy statement is effective February 26, 2024.
FOR FURTHER INFORMATION CONTACT:
Jennifer Gordon, Office of Enforcement, Federal Energy Regulatory
Commission, 888 First Street NE, Washington, DC 20426, (202) 502-5908,
<a href="/cdn-cgi/l/email-protection#c9a3aca7a7a0afacbbe7aea6bbada6a789afacbbaae7aea6bf"><span class="__cf_email__" data-cfemail="472d2229292e21223569202835232829072122352469202831">[email protected]</span></a>
John Hebden, Office of Enforcement, Federal Energy Regulatory
Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8821,
<a href="/cdn-cgi/l/email-protection#32585d5a5c1c5a575056575c72545740511c555d44"><span class="__cf_email__" data-cfemail="690306010747010c0b0d0c07290f0c1b0a470e061f">[email protected]</span></a>
SUPPLEMENTARY INFORMATION:
Policy Statement on Process for Resolving Investigations by Settlement
(Issued February 15, 2024)
1. The Commission issues this policy statement to provide updated
guidance as to our enforcement process and policies concerning
resolution by settlement of investigations that are initiated pursuant
to part 1b of the Commission's regulations.\1\ Based on our experience
over the past 15 years operating pursuant to our existing settlement
process as originally adopted in 2008,\2\ consideration of other
Federal enforcement program settlement processes, and related industry
feedback, we have determined that the Commission's existing settlement
process would benefit from certain enhancements. Specifically, and in
recognition of the important role that settlements play in enforcement,
the reforms discussed herein are designed to streamline the settlement
process, to ensure that both the Commission and subjects of Commission
investigations can resolve investigations efficiently.
---------------------------------------------------------------------------
\1\ 18 CFR pt. 1b (2023).
\2\ See Enf't of Statutes, Reguls. and Ords., 123 FERC ] 61,156,
at PP 33-34 (2008) (Revised Policy Statement on Enforcement).
---------------------------------------------------------------------------
2. As discussed in more detail below, pursuant to this Policy
Statement, we replace the Commission's existing process whereby Office
of Enforcement (Enforcement) staff must seek settlement authority from
the Commission prior to engaging in settlement negotiations with the
subject of an investigation, with a process where the Director of
Enforcement has the discretion to authorize Enforcement staff to engage
in such negotiations. Under this new process, formal settlement
authority, with settlement terms pre-reviewed by the Commission, will
not be a necessary precondition to the initiation of settlement
negotiations. Instead, with the Director of Enforcement's
authorization, Enforcement staff will engage in negotiations with the
subject of an investigation and, if and when Enforcement staff receives
a viable settlement offer from the subject, it will negotiate the
applicable terms and thereafter present the written Offer of Settlement
to the Commission for formal voting. Importantly, while the new process
grants Enforcement staff new discretion to commence and engage in
settlement negotiations, it does not
[[Page 13976]]
change the fact that it is the Commission that ultimately determines
whether a settlement of an investigation is in the public interest and
should be approved.
3. Given the significant role settlements play in the Commission's
enforcement program, it is important to ensure that the policies and
practices governing the settlement process are efficient and effective.
Ensuring that the Commission moves expeditiously benefits the subjects
of Commission investigations who want to resolve investigations early,
as well as any market participants, customers, and the public who may
have been harmed by the alleged violations and to whom disgorgement and
restitution may be directed once settlement is achieved. The reforms
adopted herein to the Commission's settlement process enhance both
Enforcement staff's and investigative subjects' ability to negotiate
settlements and reduce the time it takes to reach resolution by
settlement. As a result, the Commission's settlement practices will
better align with those of similarly situated Federal agencies which do
not require that Enforcement staff request settlement authority prior
to engaging in settlement negotiations with subjects of investigations.
I. Introduction and Background
A. Role of Settlements in Part 1b Investigations
4. Settlement is the preferred means for the Commission to resolve
investigations that would otherwise result in a recommendation of
remedial action.\3\ Settlements allow the Commission to devote its
limited resources to investigating other cases, rather than expending
significant resources in protracted litigation, which supports our
mission of ensuring the jurisdictional markets remain free from fraud,
manipulation, and anti-competitive conduct.\4\ The Commission has
explained that ``the public interest is often better served through
settlements because we are able to ensure that compliance problems are
remedied faster and that disgorged profits may be returned to customers
faster.'' \5\ In addition, while the Commission does not make findings
as to whether a violation occurred in an order approving or rejecting a
settlement offer,\6\ early and transparent publication of settlements
permits the Commission to expeditiously alert other market participants
to potential compliance pitfalls and helps avoid repetition of unlawful
conduct.
---------------------------------------------------------------------------
\3\ Id. P 33.
\4\ Id.
\5\ Id.
\6\ Rather, the Commission determines only whether the
settlement is a fair and equitable resolution of the matters
concerned and is in the public interest. See, e.g., Todd
Meinershagen, 181 FERC ] 61,251, at PP 14-20 (2022); ISO-New
England, Inc., 180 FERC ] 61,223, at PP 88-95 (2022); Enerwise Glob.
Tech., LLC d/b/a CPower, 180 FERC ] 61,126, at PP 17-18 (2022).
---------------------------------------------------------------------------
B. Revised Policy Statement on Enforcement
5. In 2008, the Commission issued its Revised Policy Statement on
Enforcement to ``provide guidance to the regulated community as to
[its] enforcement policies concerning our governing statutes,
regulations, and orders.'' \7\ The Revised Policy Statement on
Enforcement was designed to ``give the industry a fuller picture of how
our investigative process works, including the considerations
Enforcement staff takes into account in determining whether to open an
investigation and, once opened, whether to close it without further
action or to recommend sanctions.'' \8\ Consistent with this purpose,
the Revised Policy Statement on Enforcement detailed the procedures the
Commission, and in particular Enforcement staff, follow when
initiating, conducting, and resolving an investigation.\9\
---------------------------------------------------------------------------
\7\ Revised Policy Statement on Enforcement at P 1. The Revised
Policy Statement on Enforcement followed an earlier policy statement
on Enforcement issued in 2005, following enactment of the Energy
Policy Act of 2005, Public Law 109-58, 119 Stat. 594 (2005) (EPAct
2005). See Enf't of Statutes, Ords., Rules, and Reguls, 113 FERC ]
61,068 (2005) (Policy Statement on Enforcement).
\8\ Revised Policy Statement on Enforcement at P 5.
\9\ Id. PP 20-71.
---------------------------------------------------------------------------
6. The Revised Policy Statement on Enforcement explained that,
before recommending the Commission commence an enforcement proceeding,
Enforcement staff will attempt to reach a settlement with the subject
of an investigation. The Commission noted that this is valuable to the
subjects of investigations, who benefit from potentially lower
negotiated penalties \10\ and avoiding the costs and risks of
litigation.\11\ Further, the Commission explained that resolution of
investigations by settlement benefits the public interest, by ensuring
the quick remediation of compliance problems and return to customers of
any ill-gotten gains.\12\
---------------------------------------------------------------------------
\10\ In adopting and subsequently revising its Penalty
Guidelines, the Commission formalized this financial benefit for
settling parties, by providing a specific and transparent credit to
subjects in the penalty calculation for resolving a matter without
the need for a trial-type hearing. The Commission also separately
provides credit for cooperating with Enforcement staff and for
accepting responsibility. See FERC Penalty Guidelines Section
1C2.3(c) (detailing possible reductions to the culpability score,
which is used to calculate the civil penalty guideline ranges for
any particular violation of an organization).
\11\ Revised Policy Statement on Enforcement at P 33.
\12\ Id.
---------------------------------------------------------------------------
7. With regard to process, the Revised Policy Statement on
Enforcement set forth a means by which Enforcement staff would request
settlement authority from the Commission, prior to engaging in
settlement negotiations.\13\ It explained that Enforcement staff would
seek ``authority to negotiate within a range of potential civil
penalties and/or disgorgement'' and that this process would ensure that
``the Commission, not staff, determines the appropriate range of
remedies for purposes of settlement.'' \14\ If Enforcement staff and
the subject of an investigation reach a settlement in principle, the
Revised Policy Statement on Enforcement provides that staff will submit
an executed Stipulation and Consent Agreement to the Commission for its
consideration.\15\
---------------------------------------------------------------------------
\13\ Id. P 34.
\14\ Id. (requiring Enforcement staff to provide the Commission
with the subject's written response to staff's views, if submitted,
so that the Commission has both the views of its staff and the
subject before it determines whether to authorize settlement
negotiations).
\15\ Id.
---------------------------------------------------------------------------
C. Current Policies and Practices Regarding Settlement of Part 1b
Investigations
8. Since issuance of the Revised Policy Statement on Enforcement in
2008, Enforcement staff has followed the process detailed therein
whereby it seeks settlement authority from the Commission prior to
entering into settlement negotiations with the subject of an
investigation. Pursuant to this process, after commencing an
investigation under part 1b of the Commission's regulations and
engaging in initial discovery, but before any formal settlement
negotiations take place, Enforcement staff presents to the Commission
its views, as developed to that date by the investigation,\16\ and a
recommended range of potential civil penalties \17\ and/or
disgorgement. The
[[Page 13977]]
subject's response to Enforcement staff's preliminary findings, if
available, is also provided to the Commission.\18\ The Commissioners
then determine whether to approve, modify, or deny the settlement
authority, or provide alternative direction on how to proceed with the
investigation.
---------------------------------------------------------------------------
\16\ If at any time Enforcement staff determines that no
violation has occurred, the evidence is insufficient to warrant
further investigation, or no further action is otherwise called for
based on a totality of the circumstances, it closes the
investigation. Id. P 31. Enforcement staff's annual Reports on
Enforcement detail examples of cases that Enforcement staff closes
without taking action. See e.g., 2023 Report on Enforcement, Docket
No. AD07-13-017, at 19 (Nov. 16, 2023).
\17\ The civil penalty range for organizations is informed by
the Commission's Penalty Guidelines. Penalties for individuals are
determined on a case-by-case basis. See FERC Penalty Guidelines
Section 1A1.1, Application Note 1.
\18\ See Revised Policy Statement on Enforcement at P 32
(describing the process by which Enforcement staff shares its
preliminary findings with investigative subjects and provides them
the opportunity to respond).
---------------------------------------------------------------------------
9. Settlement authority is not pre-approval of any settlement
ultimately reached between Enforcement staff and an investigative
subject consistent with the authority granted. Any settlement reached
after obtaining settlement authority must still subsequently be
approved by the Commission to be effective, based on a finding that the
settlement is in the public interest. Thus, while Enforcement staff can
recommend a settlement to the Commission, it cannot guarantee that the
Commission will approve a recommended settlement, including the
specific terms and conditions of the final stipulation and agreement.
After Enforcement staff reaches a proposed settlement with a subject,
it submits a Stipulation and Consent Agreement--executed by both the
subject and the Director of Enforcement--to the Commission for formal
voting. The Stipulation and Consent Agreement, as well as the related
order approving the settlement, are generally released publicly upon
approval.\19\
---------------------------------------------------------------------------
\19\ Id. P 34.
---------------------------------------------------------------------------
II. Discussion
A. Need for Reform
10. The Commission's existing process for settling cases, which
requires staff to seek settlement authority from the Commission in all
cases prior to engaging in settlement negotiations, would benefit from
certain improvements in light of both Enforcement staff's increased and
broad experience investigating violations and recommending appropriate
sanctions for such violations, and inefficiencies that the current
authorization process can present in many cases for the Commission,
Enforcement and other Commission staff, and investigative subjects.
11. The existing settlement authority process was adopted in the
2008 Revised Policy Statement on Enforcement, as part of the
Commission's efforts to provide guidance to the regulated community as
to our enforcement policies in light of the enhanced enforcement tools
created by EPAct 2005.\20\ At the time of issuance of the 2008 Revised
Policy Statement on Enforcement, the Commission had little experience
implementing its new enforcement authorities \21\ and had not yet
adopted the Penalty Guidelines.\22\
---------------------------------------------------------------------------
\20\ See generally Revised Policy Statement on Enforcement.
\21\ Revised Policy Statement on Enforcement at PP 10-11 (noting
that from the time of EPAct 2005 going into effect through the
issuance of the 2008 Revised Policy Statement on Enforcement, the
Commission had only resolved 14 investigations by settlement and had
only issued two Orders to Show Cause, which at that time remained
pending proceedings).
\22\ See Enf't of Statutes, Ords., Rules, and Reguls., 132 FERC
] 61,216 (2010) (Revised Policy Statement on Penalty Guidelines)
(adopting the FERC Penalty Guidelines, which are modeled on the
United States Sentencing Guidelines).
---------------------------------------------------------------------------
12. Over the past 15 years, the Commission has gained significant
experience implementing its enhanced enforcement authorities. Since
2007, Enforcement staff has negotiated over 150 settlements, pursuant
to which investigative subjects have agreed to pay almost a billion
dollars in civil penalties and over a half a billion dollars in
disgorgement.\23\ The breadth and diversity of matters investigated and
settled has allowed Enforcement staff to gain broad experience, which
informs settlement negotiations by allowing Enforcement staff to
compare factual circumstances to prior matters when considering
appropriate remedies in those negotiations.\24\ Similarly, in recent
years the Federal courts have issued opinions interpreting the
Commission's enforcement authorities. These Federal court cases shed
light on legal principles, which in turn can help guide and inform
settlement negotiations by giving insight into the strength of
Enforcement staff's legal claims, for example.
---------------------------------------------------------------------------
\23\ See 2023 Report on Enforcement at 19. During this time,
Enforcement has also initiated and subsequently closed without
further action hundreds of investigations.
\24\ See id. at 20-22 (describing the types of violations
Enforcement staff has resolved by settlement, including violations
of: the Federal Power Act, Natural Gas Act, and Interstate Commerce
Act; RTO/ISO tariff provisions; the Reliability Standards; the Anti-
Manipulation Rule and the Commission's market behavior rules;
Commission orders; amongst others).
---------------------------------------------------------------------------
13. Further, in 2010, after adoption of the existing settlement
authority process, the Commission adopted its Penalty Guidelines to
``add greater fairness, consistency, and transparency to our
enforcement program.'' \25\ The Penalty Guidelines assign specific and
transparent weight to each factor taken into consideration in
calculating a proposed penalty, allowing organizations to know with
more certainty and in advance how each factor will be applied in any
particular case, thereby allowing an organization to evaluate how much
risk it could face in light of an investigation of potential
violations.\26\ Since their adoption, Enforcement staff has used the
Penalty Guidelines to analyze and calculate an appropriate penalty
range for any alleged violations of organizations being investigated,
thus ensuring consistency and transparency across investigations. Given
this experience, Enforcement staff need not obtain express sign-off
from the Commission on a particular settlement range prior to engaging
in settlement negotiations.\27\ Similarly, Enforcement staff has also
gained experience recommending civil penalties for individuals and
settling such matters \28\ and the Commission has precedent assessing
civil penalties against individuals.\29\
---------------------------------------------------------------------------
\25\ Revised Policy Statement on Penalty Guidelines at P 2.
\26\ Id. PP 2, 5 (``[T]he Penalty Guidelines . . . provide more
clarity and consistency by assessing civil penalties based on
objective characteristics and a uniform set of factors weighted
similarly for similar violations and similar violators. . . . [T]he
Penalty Guidelines . . . provide transparency by describing the
factors we consider in our penalty determinations and the weight
afforded to each factor.'').
\27\ The Commission retains the discretion to depart from the
Penalty Guidelines, based on an individualized assessment of the
facts presented in any case, when appropriate. Id. PP 2, 5, 19.
However, it is worth noting that departures from the Penalty
Guidelines are uncommon. In the context of settlement negotiations,
Enforcement staff will inform the subject of the investigation of
any departures from the Penalty Guidelines it will recommend to the
Commission. Id. P 32 n.51.
\28\ See, e.g., Todd Meinershagen, 181 FERC ] 61,251.
\29\ See, e.g., Vitol Inc., 169 FERC ] 61,070 (2019) (assessing
civil penalty of $1,000,000 against Federico Corteggiano, a trader
for Vitol Inc.); Houlian Chen, 151 FERC ] 61,179 (2015) (assessing
civil penalty of $1,000,000 against Houlian Chen, a trader for
Powhatan Energy Fund, LLC, HEEP Fund, LLC, and CU Fund, Inc.);
Coaltrain Energy, L.P., 155 FERC ] 61,204 (2016) (assessing civil
penalties of $5,000,000 each against Peter Jones and Shawn Sheehan,
co-owners of Coaltrain Energy, L.P., and $1,000,000 against Robert
Jones, $500,000 against Jeff Miller, and $500,000 against Jack
Wells, traders for Coaltrain Energy, L.P.). Each of the
aforementioned cases against individuals subsequently settled. See
Vitol Inc., 186 FERC ] 61,008 (2024); Coaltrain Energy, L.P., 181
FERC ] 61,031 (2022); Houlian Chen, 177 FERC ] 61,076 (2021).
---------------------------------------------------------------------------
14. We note also that one of the only stated justifications for
adopting the existing settlement authority process in the 2008 Revised
Policy Statement on Enforcement was that it would ``ensure[ ] that the
Commission, not staff, determines the appropriate range of remedies for
purposes of settlement.'' \30\ Under the revised
[[Page 13978]]
settlement process the Commission will continue to determine the
appropriate remedy for purposes of settlement. The Commission must
approve any settlement Enforcement staff negotiates and find that the
settlement and its terms are in the public interest. Giving Enforcement
staff the discretion to initiate settlement negotiations does not
affect the Commission's ability to ultimately consider, discuss, and
approve or reject the proposed resolution of any matter.
---------------------------------------------------------------------------
\30\ Revised Policy Statement on Enforcement at P 34. Notably,
this statement predates the Commission's adoption of Penalty
Guidelines for organizations, the existence of which now provides
staff significant guidance in their determination of appropriate
penalties in a given matter.
---------------------------------------------------------------------------
15. Further, in addition to developments over the past 15 years,
the Commission has also found that, in its experience, requiring pre-
authorization to engage in settlement negotiations in all cases--
regardless of the seriousness of the alleged violation or the
complexity of the case--creates unnecessary burdens on Commission staff
and investigative subjects who are seeking prompt resolution of
investigations.
16. The existing settlement authority process can result in an
inefficient allocation of limited agency resources. Under the existing
process, in all cases Enforcement staff and other Commission program
offices invest significant time in seeking approval to commence
negotiations, no matter how likely the prospects of settlement are.
However, after all the time and effort spent on pre-authorization to
engage in settlement negotiations, the parties may not agree to the
terms of a settlement.\31\ In these cases, the Commission resources and
time spent pre-authorizing settlement authority could have instead been
expended on other Commission priorities.
---------------------------------------------------------------------------
\31\ Sometimes the subject of an investigation may not want to
engage in settlement negotiations at all. Even in situations where
Enforcement staff thinks settlement is unlikely, under the existing
process it still requests settlement authority from the Commission.
In such situations, this process ends up being a mere formality.
---------------------------------------------------------------------------
17. Investigative subjects have also expressed frustration at the
time it can take to complete the settlement authority process in some
cases. Enforcement staff has found that increasingly subjects are
inclined to try to resolve investigations quickly through settlement,
particularly in cases where there are no factual disputes. Moreover,
prolonging the settlement process by requiring authorization to
negotiate can result in added burden and expense on investigative
subjects. As a result, investigative subjects are often ready to begin
negotiations and determine whether a settlement is attainable, and the
existing settlement authority process represents a delay--sometimes of
several months or more--in getting to this step.
18. Finally, the prolonged settlement authority process also delays
public dissemination of information about the alleged misconduct.
Transparency can help prevent further misconduct by sending a message
of deterrence. Moreover, expedient resolution of investigations by
settlement ensures that ill-gotten gains are returned to harmed market
participants and consumers as quickly as possible.
19. Both the experience Enforcement staff has gained investigating
and settling diverse cases over the past 15 years and the adoption of,
and experience applying, the Penalty Guidelines have created a strong
framework for Enforcement staff to evaluate whether settlement of an
investigation, and on what terms, can be recommended to the Commission
to be found to be in the public interest. Further, we find that the
existing settlement authority process is inefficient, in that it
unnecessarily consumes limited agency resources and potentially delays
resolution of investigations by settlement. These factors weigh heavily
in favor of streamlining the settlement process to eliminate the
unnecessary intermediate step of getting settlement authority.
B. Streamlined Settlement Process
20. In light of our experience and also feedback received from the
regulated industry and subjects of Commission investigations, we hereby
revise our existing process for settling investigations initiated
pursuant to part 1b of the Commission's regulations. Specifically, we
will no longer require Enforcement staff to obtain settlement authority
from the Commission prior to initiating and negotiating a potential
settlement of an investigation. Instead, we hereby grant the Director
of Enforcement the authority to authorize Enforcement staff to commence
settlement negotiations and/or respond with counteroffers to settlement
negotiations initiated by a subject. The Director of Enforcement
retains the existing discretion to engage with the Commission for
feedback prior to authorizing staff to engage in such settlement
negotiations on any particular investigation.
21. After engaging in settlement negotiations, should an
investigative subject submit a viable Offer of Settlement,\32\
Enforcement staff will submit the Offer of Settlement to the Commission
for voting, along with any other information that might aid the
Commission's determination as to whether to accept the Offer of
Settlement, including for example, details about the specifics of the
alleged violation(s), facts developed by the investigation to date,
and/or the relevant law. Enforcement staff will also submit the
subject's response to any preliminary findings issued by Enforcement
staff, when available. The Offer of Settlement will be executed by the
subject of the investigation and will remain non-public unless and
until it is approved by the Commission.\33\
---------------------------------------------------------------------------
\32\ By ``viable'' we mean a settlement offer that Enforcement
staff, in its considered discretion, believes is sufficient to
recommend to the Commission for approval based on Commission
precedent, the facts of the case, and review of the Penalty
Guidelines.
\33\ This replaces the existing process whereby Enforcement
staff typically submits for voting a Stipulation and Consent
Agreement executed by both the subject of the investigation and the
Director of Enforcement.
---------------------------------------------------------------------------
22. The major benefit of this approach to settlement negotiations
is that it will greatly improve the efficiency of the settlement
process, thereby allowing Enforcement staff to devote time that would
otherwise be spent seeking settlement authority to other Commission
investigations or proceedings. Further, unlike the existing settlement
authority process, this new process ensures that Commission staff and
the Commissioners are only investing time analyzing settlement terms
that are known to be acceptable to the subject of the investigation, as
they have been presented in an Offer of Settlement. We expect that
these efficiency gains will lead to speedier resolutions of
investigations, which will better serve the subjects of investigations,
as well as the public who will see the benefits of required remediation
faster. We also note that the approach to settlement negotiations set
forth in this policy statement aligns with other similarly situated
Federal agency enforcement programs, including the Securities and
Exchange Commission and the Commodity Futures Trading Commission.
23. Further, as previously stated, this new process does not change
the fact that it is the Commission, not staff, that ultimately
determines whether or not any settlement of an investigation is in the
public interest. Consistent with our existing process, an Offer of
Settlement, as well as the related order approving the settlement, will
generally be released publicly upon approval.
[[Page 13979]]
C. Other Considerations and Clarifications
24. The settlement authority process and enhancements detailed in
this policy statement apply only to the process by which the Commission
resolves investigations conducted by Enforcement staff pursuant to 18
CFR part 1b, including investigations that relate to violations of the
mandatory Reliability Standards. The reforms discussed herein do not
change the process by which parties to a docketed proceeding pending
before the Commission or set for hearing submit settlements to the
Commission for consideration,\34\ nor do they affect the process by
which the Commission reviews proposed penalties (including those agreed
to by settlement) imposed by NERC and/or the Regional Entities for
violations of the Reliability Standards.\35\
---------------------------------------------------------------------------
\34\ See 18 CFR 385.602 (2023). For example, the reforms we
announce today will not affect the settlement process during an
Order to Show Cause proceeding stemming from a Part 1b
investigation.
\35\ See generally, N. Am. Elec. Reliability Corp., 116 FERC ]
61,062 (2006).
---------------------------------------------------------------------------
III. Conclusion
25. As a Commission, we are always striving to responsibly
implement our enforcement authorities, and to that end, to continually
improve and enhance our enforcement policies and procedures to better
serve the public. Consistent with that goal, we issue this policy
statement and hereby streamline our settlement process by eliminating
the requirement that Enforcement staff seek settlement authority from
the Commission prior to initiating settlement negotiations, and instead
grant new discretion to the Director of Enforcement to authorize the
commencement of settlement negotiations. We believe these reforms will
result in more effective and efficient resolutions of part 1b
investigations by settlement.
IV. Document Availability
26. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested parties an
opportunity to view and/or print the contents of this document via the
internet through the Commission's homepage (<a href="https://www.ferc.gov">https://www.ferc.gov</a>).
27. From the Commission's homepage on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
28. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
<a href="/cdn-cgi/l/email-protection#15737067767a7b797c7b70666065657a676155737067763b727a63"><span class="__cf_email__" data-cfemail="274142554448494b4e494254525757485553674142554409404851">[email protected]</span></a>, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
<a href="/cdn-cgi/l/email-protection#433336212f2a206d3126252631262d2026312c2c2e03252631206d242c35"><span class="__cf_email__" data-cfemail="b2c2c7d0dedbd19cc0d7d4d7c0d7dcd1d7c0dddddff2d4d7c0d19cd5ddc4">[email protected]</span></a>.
V. Effective Date
29. This policy statement is effective February 26, 2024.
By the Commission.
Issued: February 15, 2024.
Debbie-Anne A. Reese,
Acting Secretary.
[FR Doc. 2024-03609 Filed 2-23-24; 8:45 am]
BILLING CODE 6717-01-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on February 26, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.