[Federal Register Volume 75, Number 19 (Friday, January 29, 2010)]
[Rules and Regulations]
[Pages 4689-4692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1538]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 35, 131, 154, 157, 250, 281, 284, 300, 341, 344, 346, 
347, 348, 375 and 385

[Docket No. RM01-5-000]


Electronic Tariff Filings

Issued January 21, 2010.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Order establishing procedures relating to tariffs filed 
electronically.

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[[Page 4690]]

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, (202) 502-8525, [email protected].
Anthony Barracchini (IT Information), Office of the Executive Director, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 502-8940, [email protected].
Andre Goodson (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 502-8560, [email protected].

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

[[Page 4691]]

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.
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    \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.
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    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.
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    \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.
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    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\
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    \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.
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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.
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    \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.
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    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\
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    \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.
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    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.
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    \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'').
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    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

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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.
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    \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).
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    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.
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    \19\ These will be filings without the Filing Identifier of a 
related filing.
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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.
[FR Doc. 2010-1538 Filed 1-28-10; 8:45 am]
BILLING CODE 6717-01-P