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eTariff for Lawyers:It is still your problem!

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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/docs-filing/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.

An Analogy Helps

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The Tariff Database (Tariff Title)

Tariff Record(Section Title)

Tariff Record (Section Title)

Transmittal Letter

Marked Tariff

Type of Filing Code

Proposed Effective Date

Associated Filing ID

Clean Tariff

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

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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/docs-filing/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).

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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.

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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)

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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!

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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.

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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.