Asset owners in the Northwest cry foul as the Bonneville Power Administration struggles to reconcile FERC orders with its operational realities. The battle between wind and water has blown up into...
Penalty Predictability Enhanced
FERC modifies its enforcement guidelines.
Marcoux, “ Day Of Decision For FERC ,” 143 Public Utilities Fortnightly , No. 12, December 2005, pp. 55, 58 (“Stiff New Penalties” chart).
2. Enforcement of Statutes, Orders, Rules, and Regulations, Revised Policy Statement on Penalty Guidelines , 132 FERC ¶ 61,216 (2010) (revised policy statement), text paras. (PP) 1-9, 97, 175-76, 182-83, 191-94, 216, 222 & 228.
3. Revised policy statement, PP 1, 210-11, 226 & 229; Statement of Chairman Jon Wellinghoff on Revised Penalty Guidelines, Dkt. No. PL10-4-000 (Sept. 16, 2010) describing enforcement staff consideration of public comments and stressing FERC openness to making further adjustments at a 2011 public technical conference. Another senior official observes that a “meeting of the minds” with industry would be appreciated. Thomas R. Sheets, General Counsel, FERC, Remarks at Bruder, Gentile, & Marcoux, L.L.P.’s 16th Annual FERC Briefing, Wash., D.C. (May 6, 2010).
4. Enforcement of Statutes, Orders, Rules, and Regulations, Policy Statement On Penalty Guidelines ,130 FERC ¶ 61,220, PP 1-2, 5 (Mar. 18, 2010) (interim policy statement & proposed penalty guidelines); Order Regarding Policy Statement On Penalty Guidelines , 131 FERC ¶ 61,040 (2010). See also Marcoux, “ Penalty Predictability ,” 148 Public Utilities Fortnightly , No. 7, July 2010, pp. 16-19 (reviewing Mar. 2010 interim policy statement & proposed penalty guidelines).
5. Penalty guidelines, §§ 1A1.1.2, 1B2.1; revised policy statement, PP 109-113; accord Larry R. Parkinson, Director, Div. of Investigations, Off. of Enforcement, Remarks at Energy Bar Ass’n Nat. Gas Reg. & Compliance & Enforcement Comms. Seminar & Teleconference “Current Enforcement Perspectives,” Wash., D.C. (May 17, 2010) (“The first and foremost goal is to foster compliance . . . in the market arenas,” which are “any place that attracts a great deal of money . . . . Industry needs to take compliance seriously . . . [because the] culture of compliance . . . takes work. Compliance is important.”)
6. The guidelines use the U.S. Sentencing Commission’s Organization Sentencing Guidelines as a model. Once FERC determines a violation has occurred and a civil monetary penalty is warranted, FERC states its belief that those two factors (seriousness and culpability) reflect the requirements of EPAct 2005, forming the “centerpiece of our penalty regime.” Revised policy statement, PP 3-4, 15-16; see also PP 17-18. The U.S. Sentencing Commission is an independent agency in the U.S. judicial branch created in 1984 to establish federal court sentencing policies and practices, including guidelines on the appropriate form and severity of punishment for offenders convicted of federal crimes. www.ussc.gov.
7. Revised policy statement, PP 171-73, 178, 218; see also Marcoux, “Canaries in the Coal Mine: Facts From Securities Fraud Private Civil Actions Can Identify Intent To Manipulate Energy Markets,” 29 Energy L.J. 141 (2008) (scienter & intent used interchangeably).
8. Revised policy statement, PP 43-50, 56-57, 62-66, 75-79, 88-89, 97.
9. Revised policy statement, PP 63-66.
10. Revised policy statement, PP 75-79.
11. Revised policy statement, PP 122-24, 131-32, 134-35, 160, 162-64, 166, 168, 214.
12. An organization exercising due diligence and promoting a culture to encourage legal compliance can receive a 3 point credit