2010-1538. Electronic Tariff Filings

Issued January 21, 2010.

AGENCY:

Federal Energy Regulatory Commission.

ACTION:

Order establishing procedures relating to tariffs filed electronically.

SUMMARY:

The adoption of electronic tariff filing necessitates changes in the Commission's processing of tariff filings. This order identifies the ways in which such changes affect aspects of Commission procedures, particularly the determination of statutory filings and statutory action dates, as well as changes in docketing procedures.

DATES:

Effective date: This order is effective January 29, 2010. Applicability date: This order becomes applicable when tariff filings are submitted in electronic format.

FOR FURTHER INFORMATION CONTACT:

H. Keith Pierce (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, [phone], [e-mail].

Anthony Barracchini (IT Information), Office of the Executive Director, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, [phone], [e-mail].

Andre Goodson (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

1. In Order No. 714,^[1] the Commission adopted regulations requiring that, starting April 1, 2010, all tariffs and tariff revisions filed with the Commission must be filed electronically according to a format developed through collaboration between Commission staff and the wholesale electric and gas quadrants of the North American Energy Standards Board, and representatives from the Association of Oil Pipelines. The adoption of electronic tariff filing provides the framework for a more efficient document processing system as well as providing a user-friendly interface from which the Commission, its staff, and the public may retrieve and review tariffs.

2. The adoption of electronic tariff filing necessitates changes in the business practices used by the Commission to process tariff filings. This order identifies ways in which such changes affect aspects of Commission procedures, particularly the determination of whether a filing is a statutory filing, and the statutory action date, as well as changes in docketing procedures.

Statutory Filings

3. As the Commission explained in Order No. 714, the electronic format developed through the collaborative process relies upon the use of metadata (or information) about the tariff filing, including such data elements as the type of filing that is being made, the proposed effective date of proposed tariff changes, and the version number of the effective tariff.^[2] As the Commission explained, these data elements “are required to properly identify the nature of the tariff filing, organize the tariff database, and maintain the proper relationship of tariff provisions in relation to other provisions.” ^[3]

4. The Commission will be using these data elements to establish statutory filing and other procedural dates.^[4] The Commission will use the “Type of Filing” code (filing_type) together with the “Tariff Record Proposed Effective Date” (proposed_effective_date) to establish whether a filing is statutory and the applicable statutory timelines.

5. All filers making statutory filings must choose a statutory filing type and include a proposed effective date to have their filings treated as statutory filings upon which the Commission must act within statutorily-established time frames. That is, the filing type selected by the filer will determine the type of filing and whether the filing is to be treated as a statutory filing. Any discrepancy between the description of the filing in the transmittal letter (or other pleading) and the Type of Filing code chosen will be resolved in favor of the Type of Filing code.^[5] Because the Commission is using the electronic metadata to establish statutory action dates throughout its electronic systems, the primacy of the Type of Filing code is necessary to ensure the integrity of Commission processes and to ensure Commission action on such filings within the time period provided under the appropriate statute.^[6] While Commission staff will try, where possible, to notify a filer of discrepancies between its transmittal letter and the Type of Filing code it selected, the Type of Filing code selected will govern the appropriate filing type and thus whether and what actions dates may be applicable.^[7]

6. Similarly, the Commission will be using the Tariff Record Proposed Effective Date code to establish the proposed effective date for any statutory filing.^[8] As is current practice, the date established by the Tariff Record Proposed Effective Date, if that date is after the otherwise statutorily-established effective date, will establish the date on which, by statute, a tariff filing would go into effect by operation of law in the absence of Commission action.^[9] In a tariff filing that contains different proposed effective dates for different proposed tariff changes, the earliest proposed effective date will establish the proposed effective date for determining the date on which the filing would go into effect in the absence of Commission action.^[10] While the Commission will continue its current practice of considering requests in transmittal letters or other pleadings for issuance of orders on an expedited basis, statements in transmittal letters or other pleadings will not establish statutory action dates for tariff filings.

7. Because of the importance of the Type of Filing code and the Tariff Record Proposed Effective Date, these metadata will be included in the electronic notices sent to the filers and posted on eLibrary.^[11] Filers should check these sources carefully to verify that their tariff filings and proposed effective dates are what they intended.

8. Filers also need to be careful when making combined filings, i.e., filings whose different parts would, if filed individually, have different Type of Filing codes.^[12] Each filing can have only one Type of Filing code, and so the treatment of any combined filing will depend on the particular Type of Filing code chosen.^[13]

Docketing Procedures

9. The Commission will use the metadata supplied with the tariff filing to help speed up its docketing and notice process. As far as possible, these data will permit docketing that closely parallels current practice. However, some of the docket prefixes previously used may not be assigned to electronic tariff filings and these filings will be assigned only a single docket number rather than multiple docket numbers as may have occurred in the past.

10. Procedures for identifying root and subsequent subdockets ^[14] will remain the same for the vast majority of compliance and other filings. However, in a few cases, parties will experience differences, particularly for compliance filings made in the context of complaint cases.

11. Subdockets for compliance filings will be established based on the metadata provided by the pipeline or utility making the filing. Each pipeline or utility is required to identify every filing using a discrete number, “Filing Identifier” (filing_id). When making filings related to or associated with a prior filing (such as a compliance filing), the pipeline or utility must include the Filing Identifier of the prior filing that is associated with its current filing. (The Filing Identifier of the initial filing will be included as the “Associated Filing Identifier” (associated_filing_id) in the subsequent filing). For example, if the pipeline or utility is making a compliance filing, it will include as the Associated Filing Identifier in the compliance filing, the Filing Identifier it assigned to the initial tariff filing giving rise to the compliance filing. That Associated Filing Identifier will permit the Commission to determine the relevant root docket number assigned to the initial tariff filing, so that a subdocket for the compliance filing can be assigned.

12. However, in those circumstances in which the pipeline or utility does not include (in a subsequent filing) the Filing Identifier of its initial filing, the root docket number for the initial proceeding will not be available. Accordingly, a new root docket number will be assigned to the compliance filing. The practice of assigning a new root docket parallels the Commission's typical practice with respect to compliance filings in rulemaking proceedings, in which each pipeline's or utility's individual filing to comply with the rule typically receives a new root docket number.

13. However, new root docket numbers may be assigned in situations in which subdockets traditionally had been assigned manually and new procedures need to be followed in these circumstances. A common situation in which this will occur will be during the implementation phase of electronic tariff filing. New root docket numbers will be assigned to compliance filings when companies have outstanding compliance obligations at the time they make their original, baseline tariff filings. Because the original tariff filing giving rise to the compliance obligation will not be part of the pipeline's or utility's electronic database, it will not have a Filing Identifier and therefore the pipeline or utility will not be able to include the Filing Identifier in the compliance filing, and the compliance filing will be assigned a new root docket number.

14. This situation also may occur on a limited scale on an ongoing basis. For example, in complaint cases, the filing initiating the complaint is not filed by the pipeline or utility, but rather by a third-party, typically a customer. In the process of resolving the complaint, the Commission may require the pipeline or utility to file a revision to its tariff. In such a circumstance, the pipeline or utility will not have an initial filing in its database with which to associate the compliance filing. Therefore, as described above, the compliance filing made through the electronic tariff filing portal will receive a new root docket, rather than a subdocket from the original complaint case. In other words, the compliance filing in a complaint proceeding will parallel the situation in which the pipeline or utility is complying with a rulemaking, and the compliance filing will receive a new root docket.^[15]

15. In situations in which new root dockets are assigned to compliance filings, the pipeline or utility making the filing still is required to serve the compliance filing on all parties in the original docket.^[16] For example, in a complaint case, the pipeline or utility will need to serve the compliance filing on all parties in the original complaint docket giving rise to the compliance obligation.

16. In order to establish a simple and uniform method for determining parties and service lists when a new root docket is established, the Commission will follow its existing practice with respect to the need to intervene. Currently, parties who have intervened in initial proceedings do not have to re-intervene in subdockets.^[17] However, when the Commission establishes new root dockets (such as for compliance with rulemaking proceedings), intervention is required to become a party to the new root docket proceeding and to appear on the service list for that proceeding.^[18] The same approach will be taken whenever a new root docket is assigned in a compliance proceeding: those wishing to become parties to a new root docket will have to intervene in that docket. A simple-to-apply rule will help ensure that the parties to proceedings are known to each other and to the Commission and that service of pleadings and orders is provided to all parties.

17. Moreover, to permit the easy identification of related filings for compliance filings receiving new root dockets,^[19] pipelines and utilities are urged to include as part of their eFiling description an indication that they are making a compliance filing and the docket number to which they are complying. This filing description will appear in the Commission's notice and will aid in the identification of the relationship between the compliance filing and the original proceeding.

The Commission Orders

(A) The procedures described in the body of this order will apply to tariff filings that are submitted in electronic format.

(B) The Secretary shall publish a copy of this order in the Federal Register.

By the Commission. Commissioner Norris voting present.

Kimberly D. Bose,

Secretary.

Footnotes

1.  Electronic Tariff Filings, Order No. 714, 73 FR 57515 (Oct. 3, 2008), FERC Stats. & Regs ¶ 31,276 (2008).

2.  These data elements, or codes, are described in the Implementation Guide for Electronic Filing of Parts 35, 154, 284, 300, and 341 Tariff Filing (Implementation Guide), found on the Commission's Web site, http://www.ferc.gov/​docs-filing/​etariff/​implementation-guide.pdf.

3.  Order No. 714 at P 23. See The National Center for State Courts, Standards for Electronic Filing Processes (Technical and Business Approaches), Standard 1.1F (2003) (concluding that the responsibility for data entry needs to be assigned to the filer, since it has the greatest familiarity with the data to be entered), http://www.ncsconline.org/​d_​tech/​standards/​Documents/​pdfdocs/​Recommended_​%20Process_​%20standards_​02_​26_​03.pdf.

4.  A statutory filing is a filing made pursuant to section 4 of the Natural Gas Act (NGA), section 205 of the Federal Power Act (FPA), or section 6 of the Interstate Commerce Act (ICA) to revise rates or terms and conditions of service.

5.  For example, if the transmittal letter states that a statutory FPA section 205 filing is contemplated, but the Type of Filing code selected represents a compliance filing, the Commission will treat the filing as a compliance filing, which is not subject to action within the period prescribed by FPA section 205.

6.  The Type of Filing code will be used in all of the Commission's electronic systems to establish the applicable statutory action dates, and so, notwithstanding a filing party's wish expressed in its transmittal letter or in other pleadings, the Commission may not review a filing that is incorrectly coded within the time period requested by a filing party in such pleadings.

7.  Commission staff's efforts in this regard are intended simply as a voluntary and informal aid to filers, and any action or failure on the part of Commission staff will not bind or otherwise affect how the Commission processes such filings. See 18 CFR 388.104(a) (2009); accord, e.g., 18 CFR 154.8 (2009). It is, and remains, the filer's responsibility to ensure that it is selecting the appropriate Type of Filing code, as well as accurately providing any other metadata.

8.  In order to constitute a statutory tariff filing, the filer, therefore, must both select a statutory Type of Filing code and include a Tariff Record with a Tariff Record Proposed Effective Date.

9.  For example, if the Tariff Record Proposed Effective Date is after the otherwise applicable statutorily-established effective date, the statutory period will be extended until the Tariff Record Proposed Effective Date.

10.  As explained in the Implementation Guide, for statutory filings with indeterminate effective dates, for example, where the effective date is contingent on Commission approval, plant construction, or the closing of a plant sale, filers must still include a Tariff Record Proposed Effective Date, but should set that date to 12/31/9998. Implementation Guide, at 10, http://www.ferc.gov/​docs-filing/​etariff/​implementation-guide.pdf.

11.  An example of how eLibrary will display the metadata for an electronic tariff filing is posted at http://www.ferc.gov/​EventCalendar/​Files/​20091119114331-Example%20eTariff%20eLibrary%20Rendition.rtf.

12.  The Commission's regulations and policies already prohibit combined filings in some situations. See 18 CFR 154.203 (2009) (compliance filings cannot be combined with any other type of filing); Calpine Eastern Corporation, 97 FERC¶ 61,078, at 61,382 (2001) (cannot combine filings made in compliance with a prior Commission order with new FPA section 205 filings).

13.  Instead of combining filings, filers can make separate filings for each type of filing contemplated—each filing containing the portions relevant to the specific filing type.

14.  The Commission typically assigns a root docket number to an initial filing and then adds subdockets to later filings in the same proceeding. As an illustration, for Docket No. ER12-6789-000, the root docket number is “ER12-6789” and the subdocket is “000.” When a subsequent compliance filing is made, the root docket is retained and the subdocket will be incremented, usually by 1, so that the new docket number will be ER12-6789-001.

15.  The complaint proceeding will determine whether the pipeline or utility is in violation of its tariff or whether the tariff is unjust and unreasonable. The compliance proceeding focuses on whether the filing by the pipeline or utility satisfies the Commission's determination in the complaint proceeding.

16.  If service is made electronically by including a link to the document in the Commission's eLibrary system, parties will be notified of the new root docket assigned to the compliance filing. 18 CFR 385.2010(f)(3) (2009) (providing for service through “the transmission of a link to that document in the Commission's eLibrary system”).

17.  The Commission maintains one service list for root dockets and all subdockets, not individual service lists for each subdocket.

18.  18 CFR 385.214 (requiring intervention to become a party).

19.  These will be filings without the Filing Identifier of a related filing.