The Federal Energy Regulatory Commission (FERC or Commission) on November 20, 2025 withdrew the Proposed Policy Statement on Waiver of Tariff Requirements and Petitions or Complaints for Remedial Relief (Proposed Policy Statement). The Commission’s policy will be to continue to grant tariff waivers on a case-by-case basis, consistent with its statutory authority and the language of the tariff in question.
The Proposed Policy Statement was intended to provide stakeholders clarity about the circumstances where FERC would agree to waive tariff provisions, but commenters suggested it would increase procedural burdens and limit the Commission’s discretion to grant waivers. In withdrawing the Proposed Policy Statement, FERC acknowledged these concerns.
Rather than adopting the new policy, FERC explained that it will continue to evaluate tariff waiver requests on a case-by-case basis under its existing four-part tariff waiver criteria, evaluating whether (1) the applicant acted in good faith, (2) the waiver is of limited scope, (3) the waiver addresses a concrete problem, and (4) the waiver does not have undesirable consequences, such as harming third parties. Any waiver requests must comply with the filed rate doctrine and the rule against retroactive ratemaking.
Moving forward, the Commission encouraged regulated entities to include language in tariffs that would both reduce the need for waivers and allow the Commission to waive tariff requirements without violating either the filed rate doctrine or the rule against retroactive ratemaking. Specifically, the Commission suggested that public utilities should consider tariffs that (1) allow utilities to cure good-faith errors themselves within a discrete period without the need for a Commission waiver and (2) provide advance notice in tariffs that specific provisions may be waived by an order of the Commission.
To illustrate the language that allows utilities to cure good-faith errors themselves, the Commission cited a provision of a Southwest Power Pool tariff that notifies market participants that it may correct Locational Marginal Price and Market Clearing Price errors when such errors have a significant impact on the Day-Ahead or Real Time Balancing market within five business days of the error in question.
To illustrate examples of advance notice, the Commission cited a provision of a California Independent System Operator (CAISO) tariff that reserves the right of Market Participants and Scheduling Coordinators to seek FERC waivers of CAISO investigations determinations. Notice provisions alert the relevant audience that promulgated rates may be subject to revision. This allows the Commission to comply with the filed rate doctrine and rule against retroactive ratemaking while offering some leeway to waive tariff provisions as necessary.