[Federal Register Volume 85, Number 111 (Tuesday, June 9, 2020)]
[Notices]
[Pages 35300-35301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12442]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
[Docket No. RM01-5-000]
Electronic Tariff Filings; Notice of Procedures for Making
Statutory Filings When Authorization for New or Revised Tariff
Provisions Is Not Required
This guidance document reiterates prior guidance and sets forth the
procedures that filers must use to make statutory filings pursuant to
section 205(d) of the Federal Power Act (FPA), section 4(d) of the
Natural Gas Act (NGA), or section 6 of the Interstate Commerce Act
(ICA) in situations where the filer is not seeking approval of new or
revised tariff provisions. Herein, the term statutory filing means a
filing pursuant to the above-referenced statutory sections that would
go into effect by operation of law, absent Commission action, after the
expiration of the applicable statutory prior notice periods of 60
(under the FPA) or 30 days (under the NGA and ICA), or on a specific
later effective date proposed by the filer.\1\
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\1\ The Commission also has referred to statutory filings as
those having a statutory action date, i.e., a deadline for
Commission action. The effective date of a statutory filing, absent
Commission action on the filing, is the 61st or 31st calendar day,
respectively, after the date of filing, or a later date specified by
the filer. Under the Commission's regulations, the full 60 or 30
calendar days of notice must expire before the filing would become
effective. 18 CFR 385.2007(a) (2019) ([A]ny period of time . . . is
computed to exclude the day of the act or event from which the time
period begins to run.).
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I. Background
The FPA, NGA, and ICA each give the Commission authority to
prescribe rules and regulations governing the form of filings to be
made thereunder. Pursuant to that authority, the Commission issued
Order No. 714,\2\ requiring electronic filing for all tariffs \3\ made
pursuant to Parts 35, 154, and 341 of the Commission's regulations,
which correspond to FPA, NGA, and ICA filings, respectively. In a
subsequent order, the Commission explained that all filers making
filings pursuant to these statutes must choose a statutory filing type
and include a proposed effective date in eTariff in order to have their
filings treated as filings upon which the Commission must act within
statutorily-established time frames.\4\ In Order No. 714-A, the
Commission revised its regulations to specify that filings intending to
have statutorily-defined action dates must be made pursuant to the
requirements and formats for electronic filing.\5\ That requirement is
now stated within each applicable Part of the Commission's regulations:
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\2\ Electronic Tariff Filings, Order No. 714, 124 FERC 61,270
(2008), clarified, Order No. 714-A, 147 FERC 61,115 (2014).
\3\ The term tariff refer[s] to tariffs, rate schedules,
jurisdictional contracts, and other jurisdictional agreements that
are required to be on file with the Commission. Id. at P 13 n.11.
The regulations promulgated by Order No. 714 required electronic
filing of tariffs, rate schedules and service agreements, or parts
thereof, and material that relates to or bears upon such documents,
such as cancellations, amendments, withdrawals, termination, or
adoption of tariffs. See 18 CFR 35.7(a) (2019).
\4\ Electronic Tariff Filings, 130 FERC 61,047, at P 5 (2010).
\5\ Order No. 714-A, 147 FERC 61,115 at P 4 (The regulations now
will provide explicitly that only tariff filings properly filed as
and designated as statutory filings according to the Commission's
eTariff requirements will be considered to have statutory action
dates, and that tariff filings not properly filed and designated as
statutory filings will not become effective in the absence of
Commission action.). See Pioneer Transmission, LLC, 169 FERC 61,265
(2019) (a filing not made through eTariff does not have a statutory
action date).
A tariff or rate filing must be made electronically in
accordance with the requirements and formats for electronic filing
listed in the instructions for electronic filings. A tariff or rate
filing not made in accordance with these requirements and formats
will not have a statutory action date and will not become effective
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should the Commission not act by the requested action date.\6\
\6\ 18 CFR 35.7(d), 154(d), 341(d) (2019).
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The required formats for electronic filing have been posted by the
Secretary of the Commission.\7\ Consequently, any filing that filers
intend to become effective by operation of law in the absence of
Commission action must be made through the Commission's eTariff system.
Under the eTariff system, the statutory action dates for statutory
filings are determined only by examining the filer's proposed effective
dates in the tariff record dataset of an eTariff filing.\8\ Therefore,
a statutory filing must be submitted using eTariff and must include at
least one actual (not a pro forma) tariff record with a proposed
effective date.
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\7\ Office of the Secretary, Implementation Guide for Electronic
Filing of Parts 35, 154, 284, 300, and 341 Tariff Filings
(Implementation Guide) (Version: November 14, 2016), https://www.ferc.gov/docs-filing/etariff/implementation-guide.pdf.
\8\ Id. at 5 (The Commission will use the Type of Filing Code
together with the Tariff Record Proposed Effective Date to establish
whether a filing is statutory and the applicable statutory
timelines).
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Since the development of eTariff, however, instances have arisen in
which a filer seeks to make a statutory filing, but the authorization
sought does not require the filing of a new or revised tariff record.
For example, a public utility transmission provider with formula rates
may wish to make a statutory filing pursuant to section 205 of the FPA
for Commission approval of recovery through its formula transmission
rates of certain costs such as those held as a regulatory asset, pre-
commercial costs, or abandonment costs. If the existing formula rate on
file contains a placeholder for recovery of these costs, the filing may
not require a tariff revision to the public utility's rate formula in
order to recover these costs upon authorization by the Commission.
Another example of this situation is a response to a Commission staff
deficiency letter that does not require a revision to the entity's
tariff records.\9\
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\9\ Staff deficiency letters frequently require that the
deficiency response filing must be filed . . . by making a
deficiency filing in accordance with the Commission's electronic
tariff requirements. See, e.g., PJM Interconnection, L.L.C., Docket
No. ER20-457-000 (Jan. 16, 2020). See generally, Transmittal Letter,
Cal. Indep. Sys. Operator Corp., Docket No. ER17-1432-001, at 2 n.2
(July 5, 2017) (in response to a deficiency letter, a tariff record
must be included with the filing. Consistent with the Commission's
directive, the CAISO is submitting one unchanged tariff record--
proposed CAISO tariff Section 26.7.1.); Transmittal Letter,
PacifiCorp, Docket No. ER13-1206-001, at 4 n.8 (Jun. 20, 2013)
(Because the Deficiency Letter does not direct any changes to the
proposed tariff revisions, even though Tariff Record Versions must
be included in this filing, PacifiCorp has included in this filing
the unchanged April 1, 2013 Tariff Record Versions, and have
numbered the versions one version higher in its eTariff filing
system.).
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[[Page 35301]]
II. Procedure for Making a Statutory Filing When No New or Revised
Tariff Records Are Required
To make a statutory filing in circumstances where the filer has no
need to change the text of the tariff record, the filer must make the
filing through eTariff and include at least one actual tariff record
(i.e., a live tariff record, not a pro forma tariff record) with a
proposed effective date. The actual tariff record should be an exact
duplicate of an existing tariff record, but with a proposed effective
date that would be the proposed effective date for the new filing.
While the filer can choose a duplicate of any existing tariff record to
make such a filing (i.e., Tariff Title, Table of Contents \10\), staff
recommends that the filer include a duplicate of a tariff record to
which the filing most closely relates.\11\ For example, if the filing
is to obtain approval for costs to be added to a formula rate, the
filer would file a duplicate of its current formula rate tariff record.
Filing a duplicate of a related existing tariff record will allow the
Commission and the public to discern how the filing relates to the
tariff on file. If the new filing becomes effective by operation of law
or Commission acceptance, the duplicate eTariff record will become the
new effective version of that record, superseding the identical tariff
record without changing the contents of that record.
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\10\ See, e.g., Transmittal Letter, at 9, GridLiance W. LLC,
Docket No. ER19-191-000 (filed Oct. 25, 2018) (The instant
Application does not necessitate any change to GridLiance West's
tariff. However, to ensure this Application is appropriately
recognized as statutory submitted pursuant to section 205,
GridLiance West includes an unrevised tariff record of the cover
sheet to its Transmission Owner Tariff.).
\11\ See, e.g., cases cited supra note 9.
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Below are the step-by-step procedures to have a tariff filing
considered to be subject to a statutory action date.
1. The filer must choose a Type of Filing Code (TOFC) within the
Normal Filing Category.\12\ Specifically, the filer must choose a
TOFC appropriate for the FERC Program (e.g., electric, market-based
electric, NGA, or oil) at issue. The Type of Filing Codes for Normal
filings include Electric Utilities--TOFC 10; Market-Based Rate
Filers--TOFC 30; Natural Gas Pipelines--TOFC 570; and Oil
Pipelines--TOFC 830.
2. Filers with multiple tariff databases should file the
duplicate record in the Tariff ID to which the filing relates.
3. The filer must include at least one duplicate of an actual
(live) tariff record (not a pro forma tariff record) and specify a
proposed effective date.
\12\ The list of TOFCs can be found in documents posted on the
Commission's website at https://www.ferc.gov/docs-filing/etariff.asp. The TOFCs can be found in the documents entitled
Validation Error Codes, https://www.ferc.gov/docs-filing/etariff/filing_type.csv and Type of Filing Rules Table, https://www.ferc.gov/docs-filing/etariff/types-filing-rules-table.pdf.
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III. Determination of Effective Date for Statutory Filings
As discussed above, the NGA, ICA, or FPA all specify that filings
with a statutory action date become effective following a statutory
notice period of either 30 or 60 days, respectively, unless the
Commission takes action that prevents that result. In cases in which a
filer proposes an effective date for a tariff record that is later than
the day after the end of the statutory notice period, the filing would
become effective on that later date in the absence of a Commission
order issued before that later date that rejects the filing or suspends
its effectiveness. Therefore, the effective date for natural gas and
oil pipeline filings subject to a statutory action date is the later of
either the 31st day after the date of filing or the earliest of the
proposed tariff record effective dates that is after the 31st day, and
for public utility filings, the later of either the 61st day after the
date of filing or the earliest of the proposed tariff record effective
dates that is after the 61st day. A filing requesting waiver of the 30-
or 60-day notice period would become effective on the 31st or 61st day
if the Commission does not issue an order acting on the filing and
granting the waiver.
IV. How To Ascertain Whether a Filing Is Subject to a Statutory Action
Date
There are two ways for filers and the public to ascertain the
statutory status of a filing: the Commission's eLibrary system or the
Commission's Notice of Filings.
First, in eLibrary, the search results page of a query includes a
field called Description. eTariff filings normally include a Filing
Type code at the end of the filing's description. This Filing Type
corresponds to the codes included in the Commission's list of filing
codes.\13\ All statutory filings will use a Normal type filing code
with a code description indicating a Time expiration in a specified
number of days.\14\ The following are the filing codes generally
associated with pipeline and utility proposed tariff revisions:
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\13\ Type of Filing Rules Table, https://www.ferc.gov/docs-filing/etariff/types-filing-rules-table.pdf (Filing Rules Table).
\14\ While, as discussed earlier, Commission regulations require
that pipelines and utilities must make statutory filings pursuant to
NGA section 4(d), FPA section 205(d), and ICA section 6 using a
Normal filing code, it is not necessarily true that all Normal
filings fall under NGA section 4(d), FPA section 205(d), and ICA
section 6. The Commission included some electric filing types as
Normal filings in eTariff, to reflect the general Commission
business practice of processing those filings within the specified
time periods. For example, the Commission processes filings by non-
jurisdictional electric entities for pass-through rates (TOFC Code
1030) as if they were FPA section 205(d) filings. Users must consult
Commission and court precedent to determine whether filings are, in
fact, subject to statutory time limits.
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Filing type codes
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NGA Section 4(d)........................... 570, 630, 640, 650, 660,
680, 690, and 730
FPA Section 205(d)......................... 10, 30, 280, 320, and 340
ICA Section 6.............................. 830, 840, 860, 890, 920,
and 930
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Second, for public utility and natural gas pipeline proposed tariff
revisions, as a general matter, the Commission's combined Notice of
Filings publicly issued by the Commission's Secretary translates these
codes with a prefatory statement that the filing is an NGA 4(d) Rate
Filing or an FPA 205(d) Rate Filing and will include proposed effective
dates.\15\
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\15\ Oil pipeline filings are not noticed.
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V. Consultation With FERC Staff
Those who have filed or intend to make filings with the Commission
may contact FERC staff to further discuss the guidance provided herein
or other questions with respect to making eTariff filings. Inquiries
can be directed to the Commission's eTariff help line at (202) 502-6501
or via email at [email protected].
Dated: June 3, 2020.
Kimberly D. Bose,
Secretary.
[FR Doc. 2020-12442 Filed 6-8-20; 8:45 am]
BILLING CODE 6717-01-P