U.S. Futures Exchanges Disciplinary Actions Alert: December 2017

The Bracewell U.S. Futures Exchanges Disciplinary Actions Report is a monthly report that provides summaries of certain disciplinary notices by U.S. exchanges during the prior month. The report has a particular focus on notices potentially relevant to energy commodities and is not intended to be a comprehensive review of each and every notice issued. Instead, the report is intended to provide market participants, and compliance personnel in particular, with illustrative examples of rule violations and to bring to light enforcement trends across the exchanges. The disciplinary notices cited in...

JOA Defaults Reconsidered

In the recent decision of Pan Petroleum Aje Ltd v Yinka Folawiyo Petroleum Co Ltd & Ors [2017] EWCA Civ 1525, the Court of Appeal upheld a decision of the High Court that parties to a Joint Operating Agreement (“JOA”) could be temporarily prevented from excluding an alleged defaulting party from participating in, or voting in, any operating committee meetings pending resolution of a dispute. The decision is likely to be of great interest to those conducting joint operations as it could frustrate the ability of parties to exercise remedies under default provision of many JOAs. Background...

FERC Asserts Right to Impose Retroactive Surcharges

Historically, Sections 205 [1] and 206 [2] of the Federal Power Act (“FPA”) have been viewed as authorizing the Federal Energy Regulatory Commission (“FERC” or the “Commission”) to order refunds when a rate has been suspended and placed in effect subject to refund pursuant to Section 205 or a refund effective date has been established pursuant to Section 206. It has long been held, however, that the filed rate doctrine and the related rule against retroactive ratemaking bar the Commission from imposing retroactive rate increases or surcharges for previously provided service. This longstanding...

Boost for Renewables Transmission: DOE Transmission Siting Authority Upheld

Over the last several years, Clean Line Energy Partners LLC has been pursuing development of long-haul high-voltage direct current (HVDC) transmission lines, primarily to deliver energy created by wind and other renewables in lower populated areas to high-demand areas of the country. In 2016, the U.S. Department of Energy selected Clean Line’s Plains & Eastern Clean Line Project for its first public-private partnership for development of transmission facilities pursuant to a never-before-used section of the Energy Policy Act of 2005. The Department of Energy’s authority to engage in...

Construction Contracts and Tax: A Splitting Headache?

It has become common practice in many jurisdictions for parties to split construction contracts with an international element. The split structure is intended to provide a reduced tax exposure for the contractor and a resulting pricing benefit for the employer. The archetypal contract split will see a single, turnkey contract split into onshore (or in-country) and offshore (or out-of-county) agreements. The contractor entity is usually different in each agreement. The various parties will then enter into a single umbrella agreement, which might also be called a bridging agreement, linkage...

Rescission of BLM’s Hydraulic Fracturing Rule: What Happens Now?

In one of the Trump Administration’s final acts of 2017, the U.S. Bureau of Land Management (BLM) formally announced on December 29, 2017, its rescission of the 2015 final rule regarding hydraulic fracturing on federal and tribal lands (2015 final rule). This action came as little surprise given the March 2017 statement from the U.S. Department of the Interior (DOI) – which oversees BLM – of its intent to rescind the rule, followed by the BLM’s publication of a proposed rule to rescind the 2015 final rule on July 25, 2017. Nonetheless, the debate over federal regulation of hydraulic...

BSEE Takes Steps to Relieve Burdensome Requirements for Offshore Operators

On December 29, 2017, the Bureau of Safety and Environmental Enforcement (BSEE) published a proposed rule in the Federal Register, stating its intent to significantly revise provisions of the Oil and Gas Production Safety Systems regulations (30 CFR part 250, subpart H) to reduce “unnecessary regulatory burdens” on Outer Continental Shelf (OCS) oil and gas operators while maintaining or advancing the level of safety and environmental protection. The Oil and Gas Production Safety Systems regulations address safety and pollution prevention equipment (SPPE), subsea safety devices and safety...

DOJ’s False Claims Act FY 2017 Statistics Show Focus on Energy

On December 21, 2017, the Civil Division of the U.S. Department of Justice (DOJ) released its annual statistics on False Claims Act recoveries, announcing that it had obtained more than $3.7 billion in settlements and judgments in Fiscal Year 2017. (A copy of DOJ’s press release is available here .) While False Claims Act recoveries in the past year are not record setting ($6.1 billion in FY 2014 still holds the record) and are less than the previous year ($4.7 billion), what was notable about FY 2017 was that DOJ pursued a number of actions resulting in recoveries against energy firms. The...

U.S. Futures Exchanges Disciplinary Actions Report - November 2017

The Bracewell U.S. Futures Exchanges Disciplinary Actions Report is a monthly report that provides summaries of certain disciplinary notices by U.S. exchanges during the prior month. The report has a particular focus on notices potentially relevant to energy commodities and is not intended to be a comprehensive review of each and every notice issued. Instead, the report is intended to provide market participants, and compliance personnel in particular, with illustrative examples of rule violations and to bring to light enforcement trends across the exchanges. The disciplinary notices cited in...