Given the way the federal bureaucracy often works, it's not surprising that businesses regulated by the Federal Energy Regulatory Commission (FERC) have been clamoring for more compliance guidance since the Energy Policy Act of 2005 expanded FERC's enforcement authority.
The Act allowed FERC to impose civil penalties of $1 million per day for energy market abuse. But what is surprising is that the commission--with the release of its enforcement package May 15--has responded promptly and to the general satisfaction of its constituents.
"This procedure presents an opportunity for companies to lay out a detailed legal and factual statement as to why the commissioners should take no action or limited action," Ansley says. "This right to be heard is a very positive development."
Some observers, however, believe that targets should have the right to communicate their concerns orally--a right that is neither granted nor curtailed under existing procedures.
"FERC is clamping down on its willingness to entertain oral communications during ongoing nonpublic investigations, and there's a real concern that merely filing written communications in what are invariably complex cases does not provide targets with an adequate opportunity to be heard," Olenchuk says.
"Dealing with FERC is no longer a leap off the diving board without knowing whether there's water below," Hollis says.