eba_slides_on_etariff

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eTariff for Lawyers:
It is still your problem!
steptoe.com
In 2010, I said of eTariff: It Takes a
Village. In 2011: Every village has its
idiot.
 Anyone who makes enough eTariff filings feels like the idiot at
some point, but the more you know the lesser your chances of
earning the Scarlet I from FERC.
 FERC posts those with a Scarlet I at http://www.ferc.gov/docsfiling/etariff/instruc-orders.asp.
 To understand eTariff need to speak at least a few words of
eTariff and have a picture of what the eTariff submitter is trying
to do.
1
An Analogy Helps
Type of
Filing Code
Transmittal
Letter
The Tariff Database
(Tariff Title)
Marked Tariff
Tariff Record
(Section Title)
Clean Tariff
Tariff Record
(Section Title)
Proposed Effective
Date
Associated Filing ID
2
Why FERC calls you


Probably, a communication breakdown
between a lawyer and an eTariff submitter.
Frequent areas of miscommunication:





Type of Filing Code
Associated Filing Identifier
Giving a “finished” tariff to the submitter as the
Tariff Record.
Proposed Effective Date
Naming Conventions
3
Type of Filing Code
 Every type of eTariff filing has a numeric Code which
(almost always) equates to a CFR Section.

You can find the Code list at: http://www.ferc.gov/docsfiling/etariff/110124-prod-rules-table.pdf

You can write “this filing is pursuant to 18 CFR Sec. 35.13”
in the transmittal letter, but you better open your CFR and
tell the eTariff submitter the right CFR citation so s/he can
find the TOF Code. I.e., 35.13(a)(2)(iii).
4
Why is FERC Obsessive about the
TOF Codes?
 The TOF Code tells FERC: what is coming, what is
required, what waivers may be requested, whether to open
a new docket, whether it must act by a statutory deadline,
etc.
 Example 1: FERC issues a rulemaking and all TPs must file a
compliance filing. FERC does not want to act in 30 or 60 days, but by
using the wrong code (i.e., a NGA Section 4 or FPA Section 205 code),
you are telling FERC it must act within 30/60 days.
 Example 2: Amending a tariff and amending a filing are different.
5
TOF Code Is a Legal Decision
 In TNA Merchant Projects, Inc. v. F.E.R.C., decided in
2010, the petitioner contended that its proposal was for
an “initial rate,” not a “changed rate,” and hence was not
subject to suspension or refund.

If the filing had been made in eTariff era, the right to go
to the court of appeals to even litigate this issue would
have been dependent on eTariff submitter entity picking a
TOF Code for an initial rate.
6
Associated Filing Identifier

FERC needs to know when a filing is associated with
another prior filing made in eTariff.
• Unless the prior filing was made in eTariff, there cannot be an
Associated Filing Identifier (AFI), although there can be a
related docket.


Why does FERC need to know?
Basic rule of thumb, if filing is being made in an
existing ER/IS/RP/OR docket and that docket was
opened through eTariff, likely an AFI.
• In contrast, filing being made in RM or EL docket, likely
no AFI, although there may be a related docket.
7
What Filings Have AFIs?
 Will have an AFI





Answer to deficiency letter.
Supplement the record.
Withdrawing an eTariff filing.
Amending an eTariff filing (i.e., what used to be an errata)
Compliance filing “fixing” a tariff submitted in eTariff, per a
FERC order on that earlier eTariff submission.
• Sometimes, FERC orders compliance filings “out of the blue.”
In such case, no AFI (helpful to include “related” docket in re
line of transmittal letter).
 .
8
Communicate with eTariff Submitter
Prior to Contract Signing
 Problem: Business folks and lawyers do a deal and
sign a contract without any communication with
eTariff submitter.

Why is it a problem: eTariff submitter may have to
superficially edit the contract post-signing to comply
with eTariff and turn the contract into a Tariff Record
 Reminder as to what is a Tariff Record – it is all or part of a
tariff, rate schedule or service agreement.
9
Why you should communicate
 Old header/footer system left on document and incorrect.
 eTariff submitter may have to add a cover.
FERC no longer routinely waives cover requirements for some
documents.
Due to various reasons, Tariff Record may need to be filed in .PDF,
which means very specific information must be added to the cover.

In designing the cover, knowing whether eTariff Submitter plans
to use .PDF or .RTF is helpful. FERC prefers .RTF, but sometimes
RTF “misbehaves.”
A Word contract, once placed into software, in .RTF may reformat and
repaginate.



10
Proposed Effective Dates
 Every Tariff Record has a Proposed Effective Date.

FERC does not have to legally act on your submission
before your Proposed Effective Date.
 Obvious legal ramifications in date selection!

A Proposed Effective Date cannot precede the date you
opened the Tariff Database into which you are placing a
Tariff Record.

Issue with compliance filings with Pre-eTariff Effective
Dates.
11
But, I do not know my Proposed
Effective Date!

How is that possible?







Spinning off generators with existing tariffs
New Merchant Transmission Company
New ISO Transmission Owner filing formula rate in ISO tariff
Want to cancel a tariff the day the generator is spun off
Gas/Oil examples?
FERC has a solution that works, if used CAREFULLY.
May submit Tariff Record with unknown PED by using
12/31/9998 – BUT NEVER OPEN A DATABASE WITH THIS DATE

No Tariff Record PED may precede the very first PED. 7998 years
is a long time to wait.
12
Naming Conventions

What has a “name”?


A tariff database (Tariff Title).
A Tariff Record has up to Three Names -- two of
which are elements of the “Section Title”
• Record Content Description (25 characters)
• Tariff Record Title (60 characters)
• Record Narrative Name (254 characters)

Other elements of Section Title are Version
Number (and Option Code)
13
Naming Convention – Tariff Title
 The Tariff Title is the Database Name.


A Tariff Title is not the same thing as a tariff title.
It cannot be changed. EVER!
 FERC does not want you to place one Tariff in a
Database, unless you are an entity with only one
Tariff.

Let’s go to the Public Viewer!
14
Tariff Title Naming – Best Practices

Many folks thought it was literally the tariff name,
which works if you have one tariff and you NEVER
want to change the tariff’s name.
• Even if only one Tariff will ever be in your Database, it will not always
be a “Baseline” so not the best idea to name the database the
baseline.
• The Revision Number of your tariff is particularly dangerous.
• “Original” in Tariff Title similarly problematic.
• Hard to be sure you will have only one Tariff, so why risk it (MBR now
and later a reactive)
• FERC has started to reject multiple databases if not used properly.
15
Section Title Naming – Best
Practices
 Even if only one tariff will ever be in your Database,

naming the Database after the tariff could cause EQR
issues, were EQR Staff to strictly enforce the guidance that
Section Title (not Tariff Title) be used in EQR.
Look at how Section Title displays on Public Viewer –
 RCD, TRT, Version
 Having the number before the text, aside from the
character restriction, is a bit more user friendly.
 Conformity is helpful in naming Section Titles for
Whole Documents.
16
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