FERC Clarifies Policy for Ensuring Timely Filing in the Event of E-Filing Malfunction

Troutman Pepper

Troutman Pepper

On August 18, 2020, the Federal Energy Regulatory Commission  (FERC) issued an order clarifying its filing requirements in the event its e-filing system malfunctions.

By way of background, in August 2019, FERC issued Order No. 862, which revised its procedural regulations to require that any documents delivered to the Commission by any means other than the United States Postal Service be sent to an off-site screening facility instead of to Commission headquarters on First Street in Washington D.C.  (See September 17, 2019 edition of the WER).  Order No. 862 was designed to enhance security for the Commission and its staff and was determined by the Commission not to impact the public’s ability to make timely filings, since the off-site screening facility would log, stamp, and record deliveries just as staff would do at the headquarters location.  In the order, FERC continued to strongly encourage use of e-filing.  Order No. 862 was originally slated to become effective 60 days after its publication in the Federal Register, but the effective date was ultimately delayed until July 1, 2020 (see November 19, 2019 and July 2, 2020 editions of the WER).

On August 18, 2020, FERC issued an order clarifying Order No. 862 in response to a request for a legally valid back-up filing method in the event FERC’s e-filing system malfunctioned on the day a filing was due.  According to FERC, if the e-filing system should malfunction on the day of a filing deadline, the public should continue to follow the same practices the Commission currently uses, which it outlined as follows:

1) The filer must e-mail ferconlinesupport@ferc.gov summarizing the problem, attaching the public version of the filing, and providing evidence of the timely attempt to file, such as screenshots of error messages, and

2) If the e-filing malfunction is not resolved by the 5 p.m. filing deadline, the filer must, at the earliest time possible the following business day, either e-file the submittal or file a hard copy at the off-site screening facility, whichever is the most expedient.

According to the order, any filing that satisfies both of these requirements will be considered timely filed.

FERC’s order is available here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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