On January 26, 2017, FERC Commissioner Norman Bay notified President Trump that he was resigning as a FERC Commissioner, effective as of Friday, February 3, 2017. A copy of the letter can be found here.

Effective February 4, 2017, Commissioner Bay's resignation will leave FERC with only two sitting Commissioners. Under the Department of Energy Organization Act, FERC must have at least three Commissioners present to constitute a quorum for the transaction of business. Thus, until President Trump appoints at least one more Commissioner, that Commissioner is confirmed by the United States Senate, and the nominee is sworn in (which could be weeks or months), FERC will be unable to vote on matters requiring action by the Commission itself. Absent action by the Commission, it is possible that certain filings with statutory action dates could simply go into effect by operation of law.

On February 3, 2017, FERC (Acting Chairman LaFleur and Commissioners Bay and Honorable) issued an Order Delegating Further Authority to Staff in Absence of Quorum ("Delegation Order"). Pursuant to the Delegation Order, if the date by which the Commission is required to act on rate and other filings made pursuant to section 4 of the Natural Gas Act, section 205 of the Federal Power Act ("FPA"), or section 6(3) of the Interstate Commerce Act occurs during the period for which the Delegation Order is effective, the Commission delegated to its staff (a delegation to the Director of the Office of Energy Market Regulation) the authority: (1) to accept and suspend such filings and to make them effective, subject to refund and further order of the Commission; 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, the Commission also delegated to the Director of Energy Market Regulation authority to institute a section 206 proceeding to protect the interests of customers.

Additionally, the Commission delegated to staff the following authority: to extend the time for action on matters where such extensions are statutorily permissible; to take appropriate action on filings seeking waivers of the terms and conditions of tariffs, rate schedules, and service agreements; and to accept uncontested settlements.

The delegation is effective until the Commission again has a quorum and takes action to lift the delegation (but in no event is the delegation to extend beyond 14 days following the date a quorum is reestablished).

The Delegation Order can be found here.

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