[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