Page 1 of 15

FERC Filing Procedures for Settlements Webinar

Transcript, Feb. 1, 2017

FERC Chief Judge Cintron: First, I am going to thank you and Mike Goldenberg and 

Larry Greenfield for having reviewed everything that we have been up to. I also want 

to thank Keith Pierce and Don Gavelek for their help in this process. May I introduce 

Mr. Pierce first. Mr. Pierce is a Subject Matter Expert in the Office of Energy Market 

Regulation. His specialty is a natural gas pipeline rate design. His experiences

include both advisory and administrative litigation of Part 154 and 157 cases. He has 

worked on numerous orders including Order No. 636 and 637 restructuring cases and 

numerous Federal Power Act and ICA cases. Mr. Pierce is also a former 

Commissioner's assistant. Mr. Pierce has long been involved in creating and 

implementing Commission business proceedings for rate filings under Parts 35, 154, 

284, 300 and 341, including Orders Nos. 582, 614, 2001, 703, 714, 780 and 781. 

Thank you for helping us out with this. 

Donald Gavelek is a program analyst for the majority of FERC’s Offices that handle rate 

filings. His experience includes the preparation, filing, processing and analyzing tariffs 

in private industry, the ICC and FERC. Mr. Gavelek was significantly involved in the 

development and implementation of the Commission’s electronic document filing, data 

validation, case tracking and case assignment processes, including Order Nos. 703 and 

714. We doing this in conjunction with the Energy Bar Association. We have had 

some issues with the settlement filing processes. And when I asked for clarification, 

the emails I got back from a number of people in the agency made me realize that if I do 

not understand what they were telling me, neither would anybody else. So I'm hoping 

that with this process we will clarify for the industry, how we want to proceed on a going 

forward basis. Thank you. Don, you are on.

Don Gavelek: Thank you Judge Cintron. Before we go any farther, IT over here 

asked me to remind participants observing this through the webinar that questions

should be directed using the live chat feature to the Host. And with that, let us resume. 

The objectives we hope to cover in this presentation are in four parts. First, changing 

filing requirements, including how we got here, resources that are have been involved. 

A section on Rule 602 settlements. A section on prearranged filings and concluding 

observations. At the end of each of these four parts, we will have an opportunity for 

questions. How we got here. Since I've been here I've observed quite a few changes. 

I’m constantly getting filings that say “we filed as you said, what we used to do things 

that way.” And the answer is “you are right.” With these new procedures, just to 

illustrate to begin with: Back in the days of paper used to have [a] requirement [for] 14 

copies; had be an original; had a specific paper size that was required; even a minimum 

font size. Business processes from that time on have evolved: paper filings being 

received manually, processing them through the Commission. From there we went to

manually archiving paper filings into Central Files. Subsequently, we were manually 

scanning these files in, which made it a lot easier for everybody to get their hands on a 

document earlier. And the result was an improved process time for all parties

concerned. FERC’s organization has changed. We have gone from various offices 
Page 2 of 15

and constantly evolving to who gets the work. Technologies evolve. Here we can find 

out who's been around for a while. Some people remember typewriters; Wang word 

processing; finally we got the laptops. Boy, that's an improvement. Media: we have 

gone from paper; there were floppy disks; and now with various Internet protocols to 

deal with this. The Commission has slowly adopted new information technology,

structures and procedures to utilize this technology. By the late 80s, staff was starting 

to request data and rate designs in Lotus format, Quattro and dBase. Order No. 582 in

1995 required NGA open access tariffs in both paper and electronic format. Those of 

you around here probably know about FASTR. Commission orders were then made 

available electronically through CIPS. 

From that point forward: Order No. 703, establishing filings via the Internet. This is a 

big, this is a big break for everybody, I think. This is the start of the Commission's fully 

integrated filing procedures. We had eFiling, which is a gateway for the public to make 

Commission filings. It started initially with protests and comments. We moved

forward; we had enhanced our docketing system. We had eLibrary, which accepts 

many different native data formats, including spreadsheets. We have case tracking,

distribution, notices - all tied in with this information that comes in from the electronic 

filing submission. We also have eService and eSubscription. Order 703 left paper 

filing procedures in place, but the regulations still required tariff filings in paper and they 

were integrated and still required some manual processing to be handled. 

Order 714, 2008, effective April 2010. I remember that date. It required tariff filings to 

be filed only in electronic format. This is the eTariff headliner. Residual order 703 

manual steps in the Tariff filing process were mostly eliminated. Non-regulated entities 

can still filing paper. This, of course, is referring to intervenors, small parties, etc. 

Commission authorized OSEC to issue instructions pertaining to electronic filing and 

electronic formats. This dealt with issues pertaining to allowable electronic files, 

documents, formats, filing of electronic – excuse me - filing of complex documents, 

whether they were paper (if it's required), and procedures and guidelines for 

submissions through the Internet. This is in 18 CFR 375 302. It also permits OSEC to 

update the many electronic filing requirements to match changing technology. This is 

been an improvement, hopefully to help all parties concerned. 

As for resources, OSEC has many instructions. Dozens of instructions for different 

filings and forms are posted on the website. Generally regulated entities must file an 

electronic format. All other parties can file in either paper or electronic format. 

However, we stress to those parties that electronic format is preferred - we tend to have 

a less problem of losing those filings and get them available to the public faster. When 

new or revised instructions are issued, they are noticed in a specific docket. For 

example, RM07-16 for eFiling instructions and RM01-5 for eTariff instructions. These 

are posted on the Commission's website. For staff guidance, we have resources 

available, starting with FERC.gov, the Documents and Filing tab information that 

provides information such as Commission notices and orders, instructive orders and 

collection of FAQs that have occurred through various Commission orders on filings. 

There is also a resource for FERCOnline where staff is available to take calls and they 
Page 3 of 15

can field them to Commission staff as necessary. Many of the parties out there in 

industry also will call staff directly. They've got a resource and they will use it. There 

are third parties. These third parties are in connection with what we refer to for tariff

filings and software and management. The Commission makes no recommendations 

on them. We can only refer to them. We give no instructions or provide advice on 

them. 

This next screen is just as little small section out of what has been made available. I 

believe Brooks Carter started working on this when he was still here, if you recognize 

that name. What [this example] does is identifies various portions of the Commission's 

regulation’s specific schedules, tariffs, what the requirements are, by section and 

whether an eTariff requirement is mandatory or not. This has been a great facilitator 

and helps in explaining to somebody for filings being rejected where they need to go 

look and find procedures. 

At this point, are there any questions? I will turn this over to Keith Pierce.

Keith Pierce: So let's get over to the settlement filing procedures. As all of you know, 

the Commission has many unique definitions that applies to common words only those 

definitions are only applicable to contacts within the Commission. Both EBA and FERC

offer classes on many of these terms and how to apply them. And this particular 

classroom we will go into depth with one of the particular words and that is: Settlement.

We have two general categories when we refer to settlements that have unique 

definitions in the context of FERC. First, with what we are going refer to as Rule 602

settlements. These are settlements of issues that have or are in proceedings that are 

established already - already established before the Commission. And we will go a bit 

more to the definition later. The second set a category of settlements of we will be 

referring to as prearranged or preagreed filings, and they follow a completely different 

business process. One of the reasons for this class is that we don't want those two 

business processes mixed up.

Rule 602 settlements. What's their definition? It comes straight out of 385.602, where 

it provides that this section applies to written offers of settlement filed in any proceeding 

set for hearing under Part 385, subpart E, before settlement judge and/or alternative 

dispute resolution. The implication of course is that there is already a filing here before 

the Commission, that Commission has actually issued an order and set it before a 

presiding officer. Also, from our perspective, part of this class is that we also consider 

as offers of settlement any written proposal to modify or amend an existing settlement 

that is pending before the Commission under Rule 602. Remember that these 

modifications and amendments can occur at multiple points along the process. It can 

occur soon as the settlement has been filed. Someone made a mistake; got to refile or 

make a modification to it. It can occur after the judge certifies it to the Commission but 

before the Commission has acted on it. Or it can happen as a result of a modification 

that the Commission is made in the approval. And it can also happen many years 

thereafter, when the parties say, oh, maybe this term and condition, may be a 

compliance obligation – you know - will agree to make a modification. That's also a 
Page 4 of 15

modification to a settlement and is covered under the 602 procedures. 

Rule 602 settlements have a set of required documents. Most of these come straight 

out of the regulations that we will go into a little bit more. Transmittal letter: of course 

all transmittal letters to the Commission should be addressed to the Secretary. The 

reason is, the Secretary distributes this material throughout the Commission. So 

therefore in your transmittal letter, make sure you are clear as to whom you wish the 

settlement to be directed. For the most part, initial settlements are going to be going to 

the presiding officer. However, there are some circumstances, especially in the cases 

of amendments that come after certification, those will be directed to the Commission. 

Because once a filing has been already certified out from the ALJ, those settlements 

don't go back to the ALJ. Those are before the Commission. Summarize your 

requested actions. Do you have any motions in your request? Do you have any 

requests for waivers? Are you addressing any interim rate issues? List the 

documents, especially with regard to whether not they made public, CEII or privileged 

information. With regard to the contact information that you put on the transmittal 

letter, make sure that that person is eRegistered and on the Commission service list. 

Remember many times the settlements here involve people who may not be on the 

service list because that was done in the litigated proceeding. This transmittal letter is 

the public document that you're asking the Secretary do something with which may not 

have any - which is procedural as opposed to the content of the settlement itself. 

Attach, of course, your stipulation and agreement, your settlement offer, and 

explanatory statement. You should include any copies or references to additional 

documents. Any such references to documents that you're incorporating by reference,

try to make sure you have good citation to it. Could be an accession number because 

that document may be in the library in multiple locations and they may not all be 

identical. If necessary, and we are going to talk more later on this, including any actual 

tariff records that are consistent with the Order 714 format - but will you limit those 

actual tariff records to interim rates. We will talk more about that. Make sure you 

have a motion saying how you want the judge or someone else at the Commission, if it's 

addressed to the Commission, to manage those interim rates. And any other 

documents that you may deem appropriate - make sure that they are part of that 

package. 

One of the reasons that we do not request, or do not recommend, pardon me, that you 

do not supply actual tariff records as part of the stipulation and agreement is that it's 

really difficult to predict the compliance timeline that the regulated entity will have to go 

by. You're going to be dealing with locked-in periods that are undefined and openended and, therefore, trying to predict what's going to happen is often very very difficult. 

Within lock-in periods, you can have multiple sub-locked-in periods which will require 

additional tariff records that sometimes in the heat of the moment of negotiation you 

may forget something. There are frequently other filings that occur at impact those

Tariff records that have nothing to do with the settlement and you don't want to forget 

them. Further, settlements can be amended or modified. You have unexpected 

actions at the Commission may make that may result in having to modify those 

compliance records again. And further, as there is no timeline for the Commission to 
Page 5 of 15

act on settlements and therefore your proposed tariff records may need to be modified 

due to delays of Commission action. Sorry for not keeping up on the sides. 

If you're involved in a tariff filing proceeding before a presiding officer or presiding – yah 

- presiding officer, you are supposed to be following their instructions. In other words, 

when you have a proceeding before the presiding officers, they control what type of 

documents need to be filed and in which manner. On December 1, 2016, the 

Secretary of the Commission in conjunction with the Chief Administrative Law Judge

issued a new set of instructions and Type of Filing Codes applicable to filing of 

settlements before a presiding officer. It became effective on January 3, 2017. In the 

back I have copies of that Notice. For those of you who are listening in, you can get 

that off of the Commission's website. These Type of Filing Codes are specific for 

settlements under Rule 602 - not any other settlements that we will be discussing later. 

When you make that filing and put together your tariff XML filing, make sure that you 

associate with the original eTariff Filing Identifier. That is a term of art at the 

Commission: tariff Filing Identifier. That is a term of art used in eTariff. The terms that 

I'm going to be using are the NAESB approved and Commission adopted terminology. 

If you do not know what those terms are, please go to the Commission's - to the OSEC 

Implementation Guide on the Commission's website. OSEC will be assigning a new 

sub docket to the settlement filing. There is no need to re-intervene because the 

existing service list stays with any sub docketed proceeding. So if sub docketed - no 

need to re-intervene. Once a docket is given to a Filing ID continued to use that Filing 

ID with all subsequent eTariff filings. That way you don't multiply the number of roof 

dockets. However, there are going to be filings or proceedings that, in all, docket 

numbers that do not have a Filing ID. Most of those are complaints, things like that. 

Under those circumstances, the Secretary will issue a new roof docket number. 

Parties are advised to intervene as a new service list will be created for that particular 

root docket number. But also note that settlement Type of Filing Codes provide that 

the new sub docket or the new root docket filings will be before the presiding officers. 

There will not be an order consolidating or assigning that new sub docket or root docket 

over to the presiding officer. That is the purpose of the Type of Filing Code. It 

provides notice to everybody that this is part of that proceeding. So there won't be a 

separate order going out on that topic.

For filings - for Rule 602 settlements there part of multiple proceedings, put the 

nonassociated Filing ID’s [docket number] in the Filing Description. That way that 

docket number will be in eLibrary and you can find it on a search. These type of 

instruction - these instructions, by the way, are not unique to the settlement Type of 

Filing Codes. The Commission issued those instructions back in 2010 [regarding] any 

proceeding involved involving multiple docket numbers. 

When you file a settlement, put all the supporting documents and tariff records into a 

single filing. Please don't scatter the documents across multiple filings or multiple 

dockets. Make it a single package. eTariff XML format can handle approximately 200 

attachments. There should be no limitation with regard to the eTariff XML structure. 

Only file the settlement once. If you have duplicative or piecemeal filings – they cause 
Page 6 of 15

confusion. It raise questions as to whether or not the multiple filings are actually 

identical. And it leaves parties confused as to where and to what documents they 

should make their 602 comments and reply comments to. Make it a single filing. 

There some limited exceptions, such as if you happen to have a settlement that crosses 

multiple proceedings. In other words, part of it is only before presiding officer about 

another somewhere else, or may even be two different proceedings with two different 

presiding officers. There - sometimes – it is appropriate making the filing in both. The 

other circumstances - when you're involving multiple regulated entities. They have to 

make eTariff filings in multiple Tariff IDs. In those circumstances what we recommend 

is that you file only the transmittal letter in the second filing and [include] the appropriate 

tariff. Don't duplicate all the settlement documents because the same issue may arise 

with regard to the confusion: are those documents identical? 

Rule 602 has a regulatory notice period. And what that provides for is basically on the 

20th day, the 30th day from the date of filing, that is when the comments and reply 

comments are due, Remember with the 20th and the 30th day, the standard 

Commission rule applies that if it happens upon a nonbusiness day, it is the next 

business day. That is the applicable day from filing your reply – that is - your 

comments for your reply comments. However, each one of those days is independent. 

So the 20th day gets pushed off for three days when you combined weekend and 

holiday, it doesn't change the 30th day comment period. Settlements are not subject to 

an OSEC notice. However, as anyone who's been involved in this program for along -

for the last few years, is aware that sometimes OSEC does issue a notice on Rule 602

settlements inadvertently. That is because a lot of our systems are automated, as Don 

mentioned. If such an incorrect second notice does get issued, it does cause quite a 

bit of confusion. We get telephone calls. You know that people don't know whether 

which states actually file their comments because the dates are not synchronized. If 

you see one of these incorrect notices, please inform OSEC through FERCOnline and 

we will try to get the error corrected. It serves all of our purposes and our objectives to 

get these type of mistakes clarified as soon as possible. So please help us in that 

regard. But we are hoping for is that the new Type of Filing Codes will reduce those 

type of errors because now there more easily identifiable by the Secretary's office as 

602 settlements as opposed to other types of filings. When you make your comments 

and reply comments, please put them in the sub docket of the settlements so that 

people know where those comments belong.

Let’s go into more detail with regard to interim rates: Interim rates have always had to 

be filed in eTariff anyway, so this is not really a change. Let's go into some of the stuff 

that we expect. Interim rate filings are not subject to a separate notice. They are part 

of the regulatory notice of the 20 and 30 days. So even if a settlement comes in with 

real tariff records, the Secretary should not be issuing a separate notice on those tariff

records. Make your comments associated with the interim rates in your normal 20/30 

day comment timeline. Motions to accept interim rates are not subject to a 

Commission action date. They can sit there forever, depending on who is assigned to 

review and approve them. And we will discuss about that in a moment as to who that 

may be. When a motion is filed for approval of interim rates, OSEC looks at it and then 
Page 7 of 15

assigns it out. But it does not assign them to the ALJ. Those interim rates are 

assigned to OEMR. OEMR has three options. If the proposed interim rates are lower 

than the effective rates, they may refer those interim rates over to the presiding judge 

for approval and the presiding judge may either accept or reject those interim rates 

through a delegated letter order. OEMR may do the actual action itself of accepting the 

interim rates by delegated letter order. Or OEMR may take another action as 

appropriate. 

Supplements and amendments of Rule 602 settlements. Keep the supplements and 

amendments in the same docket. They still should be filed using the Type of Filing 

Codes for settlements, even if it several years later. Amendments to Commission

approved 602 settlements are still 602 settlements and that, like I said that may occur

many years later. You'll see them on the Commission’s agenda regularly. Notice will 

still be the 602 notice. There should not be a separate [OSEC] notice even if [the 

amendment] occurs multiple years later. [The] 602 comment and reply comment 

periods [apply], even if it's three for five years later. Think about it. You don't really 

want to have an OSEC notice on a settlement that's already been approved by the 

Commission and providing an opportunity for other parties who were not part of the 

original proceeding to come in and make comments on that settlement. There is a 

reason why these remain 602 settlements.

Resources. As I mentioned a lot of what I covered is actually listed check by check in 

the Commission's regulations. The Secretary puts up a lot of information with regard to 

the forms, with regard to the eTariff XML format and the like. We also post a lot of 

information on the FERC.gov website. And of course with what we post, we have our 

normal disclaimer on that we don't speak for the Commission and the like. As Don 

mentioned, you can also call staff at work or Online support. And if you do call us with 

regard to procedural issues on eTariff filings, every division is supposed to have a 

specific individual assigned to it. Call those division directors and they will send you off 

to the right person. 

We've attached a flow diagram for you, that you can print off; put on your wall if you get 

confused and ....

Any questions? Yes [inaudible..]

Audience: With respect to the transmittal letter, page 12, should there also be a 

discussion of any proposed effective dates in that transmittal letter?

Keith Pierce: If you have a ... if you have interim rates, you should mention the 

effective date that you're requesting. With regard to the effective date of the 

settlement, that's, of course, a negotiated item. It, of course, is dependent upon what 

the parties negotiate. Many parties put in something to the effect that X number of 

days after Commission approval or something like that. But that's an individually 

negotiated item. But definitely any tariff records are supposed to have proposed

effective date and the transmittal letter’s motion with regard to approving it should 
Page 8 of 15

identify with that date is. Any other questions? Yes, Mike 

Mike Goldenberg: In a proceeding before an ALJ with multiple dockets, they settle a

bunch of dockets, would you prefer that they make a settlement filing using pro forma 

tariff sheets in just one of those associated filing identifiers or you wanted ..or would you 

prefer that they make several filings in each of the relevant dockets?

Keith Pierce: If you're only dealing with pro forma tariff records, please, please only 

make a settlement filing once....

Mike Goldenberg: And then the Commission would then issue an order requiring the 

compliance filings in each of the dockets?

Keith Pierce: That's correct. Try, try to reduce the amount of times you make filings 

here. It just causes confusion and it is also an expense on your part.

Judge Cintron: I just have some clarifications. In terms of the comment dates, the 

judges can shorten those comment dates on motion. I'm also requiring that the parties 

file a motion requesting interim rates so that I know that I have to act on them, if OEMR 

so desires. And only ... that the chief judge can act on the lowering of the interim

rates.

Keith Pierce: That's correct all the way around. And, again, that's that's why the 

transmittal letter is so important to list all these items and And Judge Cintron brought 

up the question, or the point, with regard to a motion to reduce or shorten the comment

period. For those that you direct to the Commission for settlements that are after 

certification, make sure you mention if you wish, that make sure you mention that in the 

transmittal letter also. Any other questions before we move on? Yes, Michael.

Mike Goldenberg: Compliance filings. If the settlements filed using the Type of Filing 

Code that you posted for settlements and it's with the Commission and in the 

Commission requires a compliance filing, which Type of Filing Code you want the filer to 

use? The same ones or with the standard filing codes?

Keith Pierce: Once a settlement has been acted upon by the Commission, then it's in 

a compliance filing. It is no longer a settlement filing. You’re complying with the 

Commission order or complying with the terms of the settlement. So use a normal,

everyday, compliance code appropriate for the program as applicable to your particular 

regulated entity. 

On line reader: The online question is: in the circumstance when the settlement is of 

consolidated cases, what is the lead docket or Filing Identifier?

[34:18] Keith Pierce: OSEC doesn't care. They're all ... all those dockets 

presumably have been given over to the presiding officer. And it may be an issue with 

regard to how the parties have negotiated their settlement as to who is going to be the 

lead party. But as long as the docket numbers have been assigned over to the 
Page 9 of 15

presiding officer use any of them – they are all good. 

On line reader: We have often filed a motion for interim rates in a separate 

supplemental from the settlement submittal, from the settlement, explanatory statement,

etc. Is it preferred to combine the motion with the settlement filing instead?

[

Keith Pierce: Absolutely combine it into a single filing. It's a total package that was 

negotiated. We don't want to see these separate filings go off in different ways. They 

get lost. Reduce confusion, reduced chances of error and in the long run I think it 

probably makes things simpler. Yes, judge

Judge Cintron: What I don't want is the motion being inside the transmittal letter 

because, as you pointed out, the transmittal letter is addressed to the Secretary. So

we may miss it as well.

Keith Pierce: Very well, let's go on to what we are referring to is prearranged or 

preagreed filings. These are often referred to as settlements. However, they do not 

involve the settlement any pending or open proceeding before the Commission. Yes 

indeed, they may be referred to as a settlement by the parties. And from their 

perspective, it is. From the Commission's perspective is not. [inaudible] There's 

nothing being settled that's before us. There's no specific Commission regulation that 

apply prearranged or preagreed to filings - unlike 602 settlements where we do have 

specific regulations addressing those type of settlements. All prearranged or 

preagreed to filings are managed as if they were every day tariff filings under our 

standard eTariff business processes. Such as there is no specific Type of Filing Code 

applicable to prearranged or preagreed to filings. They will all receive a standard 

Notice from the Secretary, with regard - that usually provides for intervention and, of 

course, a comment period. Rule 602 comment periods do not apply to these filings. 

And quite frequently we see these filings come in and they say we want to comment 

and reply comment. No, that's not that's - that's not the notice that you're going to 

receive under these filings. There a lot of advantages to making these filings, the 

Commission of course does have a preference for people reaching agreement. And 

after all, it reduces the lower - lowers the risks of protests, lowers the risk of suspension. 

In the event of protests. There are overall lower regulatory expenses as you don't go 

into hearing, you do not engage in all the expenses of staffing up or all the paperwork 

that's involved. However, there can be sometimes unexpected results. Unexpected 

protest because, maybe you didn't cover all the parties that had an interest in the 

proceeding, or the issues were resolved the way they thought they were resolved. You 

can also have unexpected Commission results because we may view, or the 

Commission that is, may view these prepackaged filings from a different light as to 

what's just reasonable but they are not, or as unduly preferential or discriminatory. And 

the end result may be some, there may be a rejection or suspension that you may not 

have expected. 

When you have a prepackaged or prearranged filing, there are two available business 

processes that you can use to make these filings before the Commission. Either the 

Normal/Statutory or Compliance. These are both business terms are defined in the 
Page 10 of 15

OSEC Implementation Guide. When you decide or are choosing which business 

process, make the decision based on what is the desired outcome, not on the basis that 

there is a prearranged settlement. So, if you want to place into effect actual tariff 

records, with the Commission acting pursuant to the statutory or regulatory action date,

choose a Normal/Statutory business process business Type of Filing Code. If you're 

looking for preapproval of the prearranged or preagreed to filing, use a Compliance 

Type of Filing Code and then follow that up compliance filing after the Commission acts 

on it. Instructions for that particular procedure is in the DTI order that's in the in the 

slide. It's the regulatory entity's choice as to which business process use. But, of 

course, as always, the Commission reserves unto itself - deciding whether their choice 

was appropriate. 

Commission staff highly recommends that parties have a prefiling meeting with with the 

staff to discuss prearranged and prepackaged filings. Such meetings are permitted 

pursuant to the regulations that I provided. The reason that we make this 

recommendation is that these type of filings often involved unique issues, or 

procedures, or timelines or tariff provisions. Staff can provide suggestions as to the 

documentation, explanations or tariff construction that may help in processing of that, of

such filings. Notice that the disclaimer is in here, again. And the reason that I restated that disclaimer at this location is that, frequently after these meetings, companies 

will then put in the transmittal letter saying that “staff agreed.” No. Staff did not agree. 

We cannot agree under these terms of meeting, under these particular provisions. So,

there's nothing wrong with saying that you met with staff; you cannot say that we agreed 

this. We do not have the ability to agree. You can of course go to the Commission's 

regulations for guidance for putting together packages. Of course the OSEC guides 

and instructions are available, they are equally applicable to these type of filings and the 

Commission also posts additional information on FERC.gov. We have put together a 

flow diagram – it is not as complicated for prepackaged filings

And now any questions? Yes, judge

Judge Cintron: When you said “staff,” what staff are you talking about?

Keith Pierce: Very good point. Yes for the prepackaged or prearranged deals were 

talking about advisory staff, not the litigation staff under OAL. When we are talking 

about Rule 602 settlements, the staff that we are referring to, of course, is the OAL staff. 

So, yes, there is a big distinction on that point. I appreciate the clarification.

Judge Cintron: What advisory staff are you talking about? What – How do they 

know who to call? Do they know? I mean, does the FERC.gov site mention?

Keith Pierce: That's a good point in the sense that it is supposed to be common 

knowledge that you called the division directors. 

Judge Cintron: Wait – do they know that?
Page 11 of 15

Keith Pierce: Yes, they do. In fact, we have a former one sitting right there. He used 

to get all those – get those calls all the time. [inaudible] But you don't have to worry 

about those, Judge. [inaudible] Thank you for that. Any questions on chat? Very 

very good. Let's move on to the to the last segment with Donald Gavelek.

Don Gavelek: Thank you, Keith. Well hopefully it's a wrap up here – if we haven’t 

overwhelmed everyone with all this information. We have settlement points to 

remember. All settlements filed through eTariff are automatically loaded into eLibrary 

and become part of the public record. eTariff filed settlements can only be filed in a 

single docket number. All members of the eService and eSubscription list in that 

docket number are automatically informed of the filing and provided an accession

number and hyperlink to the filing by OSEC. OSEC does not have access to, nor 

provide services to any party on service lists maintained by line, by the presiding officer. 

Parties to settlement should rightly focus on the major issues. But once those issues 

are settled, the parties need to consider how the settlement package is assembled and 

how the terms of the settlement are to be implemented. As each settlement is unique, 

it is not really possible to create a checklist beyond the basics that are already in the 

Commission's regulations. However, staff see scores of settlements and their 

implementing compliance filings. From that experience, we put together a list of points 

to remember. In some of these you may recognize from potholes in your own 

settlements hit list. So hopefully as we go through these, this will help you out. We 

hope this section really helps you. In a transmittal letter, clearly identify to whom the 

Secretary should direct the filing. Identify all proceedings, motions, appeals, etc. that 

are the subject of the settlement, whether or not part of the proceeding is before the 

ALJ, including those before the court. Identify all attachments and their security level.

If requesting privileged or CEII treatment for any document, follow the procedures and 

instructions of 388.112 and .113. If documents or exhibits are included by reference, 

please include clear citations to the document in eLibrary, such as description, prefiled 

testimony, its description, docket number and the accession number. If requesting 

comment timeline other than that provided by the section, you must provide a motion to 

the presiding officer. Include the motion as part of the filed settlement package. If

intermittent, if interim rates are part of the settlement, the transmittal letter must include 

a motion to place those interim rates into effect and the proposed effective date. 

As for the settlement, identify all items and proceedings, motions, appeals that are the 

subject of that settlement, including those before the court. Clearly, again, clearly 

identify those items. Clearly state the disposition of each item or proceeding, such as 

withdrawal of protest, filings, rehearings or appeals. For Part 154 settlements of 

general rate cases, a separate provision requiring an agreement as to what values the 

pipeline should use for the exogenous variables in the NGA section 7 certificate 

application’s initial rate calculation.

The settlement perverts. Pardon me. If the settlement permits severing of contesting 

parties: provisions as to how the tariff will include filed and/or rate Tariff records, and 

settlement rate Tariff records applicable to contesting and consenting customers. 
Page 12 of 15

There should be provisions addressing the billing of contesting parties pending 

resolution of reserved issues. Also, provisions that note how contesting parties may 

become consenting parties. List and define any reserved issues. Interim rates: if 

interim rates are to be changed, there must be eTariff records filed in eTariff. If interim 

rates are part of the settlement, include the interim tariff records as part of the 

settlement filing. You should be sure to note provisions addressing rebilling of 

customers in the event settlement is not approved. [inaudible] include things such as 

timing and refunds. 

Address comeback requirements, the date of comeback filing or effective date. Does 

comeback filing date consider the statutory notice and the possibility of full suspension? 

Also, your documentation is expected as part of the comeback requirement, impacts of 

other activities, filings, etc. on the scope of the comeback requirement. Also include 

notes on the rights to early comeback. For formula rate settlements, if the settlement 

includes exogenous variables in the formula rate, such as return on equity, depreciation,

PBoP's, it is regulated entities responsibility to place those values into its tariff and this 

is in the ODEC cite: 133 FERC 61,261. If a formula or calculations are the subject of 

the settlement, the formula should be provided in spreadsheet format. 

Compliance obligations. Clearly stated compliance requirements should be noted. 

The documentation requirements, formulas, calculations and methodologies. Also 

should note the timing of compliance obligations, note responsibilities of each party for 

compliance obligations, note the right of each party with respect to any compliance 

filing. For tariff records: settlement provides for revised terms and conditions of service 

and/or rates, revised tariff records are likely required. It is advisable to file only pro 

forma tariff records as part of the settlement. I will state that one again: it's advised to 

file pro forma tariff records. If the settlement provides for revised tariff text or rates, all 

tariff records within a lock-in period may need to be revised in a compliance filing or 

filings. There's a limited exception. If there are no other pending issues involving a 

tariff record in the subject proceeding or other proceedings, including those on appeal, 

and parties also agreed that the tariff need not be revised. 

For filing. Use standard eTariff filing precautions and procedures. You see eTariff

specific settlement Type of Filing Codes to file a settlement. Remember that metadata 

rules. If there's a conflict between eTariff XML data in the document contents eTariff

XML data rules. Correct mistakes with a new settlement ToFC eTariff filing. If a 

settlement filing must be withdrawn, use a withdrawal type of filing code that's 

appropriate to the program. File a replacement eTariff settlement filing to ensure the 

Commission properly receives it before making the withdrawal filing. 

If OSEC assigns a new docket number, which would be 000, to the eTariff filed 

settlement, the new docket number is part of the presiding officer’s proceeding. There 

will not be an order consolidating or assigning the new docket number to the underlying 

proceeding. Parties are advised to intervene in the new docket number. File 

comments in both docket numbers. OSEC will not change eTariff assigned docket 

numbers. OSEC will not correct them. They will not correct a regulated entities XML 
Page 13 of 15

mistakes. OSEC treats mistakenly assign new docket numbers no differently than a 

correctly assigned docket number. To note here, the new docket number is part of the 

presiding officer’s proceeding. The presiding officer may require the regulated entity to 

correct this mistake and close the new docket number. 

Are there any questions on any settlement or prearrange filing procedures?

Mike Goldenberg: I have one question. I think you may have touched on it, but an 

electric filings that are under section 206, where they are in an EL docket, can you 

explain how people are supposed to file settlements for those?

Don Gavelek: They would make it - they would use a Type of Filing Code: Settlement 

Mike Goldenberg: And what docket number should they choose?

Don Gavelek: They would have to choose one appropriate to their regulated program. 

Keith Pierce: I think what Mike is referring to is where the EL does not have a Filing 

ID for them to associate with. Under those circumstances they would use a settlement 

Type of Filing Code. There would be no association at the Filing level, no Associated 

Filing ID. You'd be - the Secretary would issue a new root docket. In the Filing 

Description, they should identify the EL docket so that eLibrary has that docket number 

in eLibrary. 

Mike Goldenberg: If for any reason, they have a, for example, reactive power filings, 

there are a lot of filings that are originally informational filings and so they do get in ER

docket. Would you prefer that they use that ER docket when they file the section 206 

settlement?

Don Gavelek: In the Filing Description.

Mike Goldenberg: No, but instead of getting a new root, should they use the existing 

ER docket when they filed the informational filing if they made it through eTariff?

Keith Pierce: If they made it through eTariff they should keep it in in there, in that 

docket number.

Mike Goldenberg: And the other thing is my understanding that the settlement 

agreement itself should not be included in the tariff portion of the filing. It should only 

be as a transmittal letter or a separate document, but it's not part of the tariff. So that 

any terms and conditions that are in settlement agreements should probably be put in 

the tariff itself if you expect that to be enforced. Because the settlement agreement just 

goes in eLibrary, not into the tariff. 

Keith Pierce: That's correct. And you will, the Commission has said as such 

comments before in the Boston Edison order, approximately [98] FERC, somewhere in 
Page 14 of 15

that area. 

Audience: On page 33: what's a come back requirement?

Keith Pierce: On some settlements parties have reached an agreement that the 

regulated entity should the comeback to the Commission with either a full or partial 

205 or section 4 filing depending on what they negotiate. It often puts a timeline on as 

to when that filing should be made. Sorry, a term of art there. 

Judge Cintron: In a lot of settlements, they just – the parties agree that they will file a

tariff again in, like, 2020/2025 That's a common method. It could be other things

depending on what’s happening. The more problematic one is when they reserved

issues, they will reserve certain things. I personally and my office does not look at 

those favorably because they create a lot of problems for us, including an administrative 

nightmare. Right now were are sitting on one docket that goes back I believe two or 

three years. Our tracking systems are tracking it even though it was a settlement that 

was partially settled and then they postponed one of the things so now they're back. 

And so that is not a good procedure to follow because from an administrative 

perspective – it just - that docket exists forever and ever more. So if we are going to 

settle, settle everything. In terms of when there is a new docket number, we 

recommend that the Commission close it out. We may tell the parties. I don’t know if 

we are telling the parties to correct the docket number. We just say to the 

Commission: close out that docket number. Okay we are not. I don't believe that we 

are requiring the parties to do that. In terms of the interim rates, that has always been 

a problem. So the transmittal letter, if there is something that I need to address, the 

transmittal letter should mention that there is a motion. And I would still require a 

motion since a motion has more teeth into it than if they just put it in the transmittal 

letter. I will not sign off on interim rates if they don't prove that it lowers the rate. 

And I was remiss on thanking Sarah for all her hard work. She was the one that put 

together those flowcharts and put together this presentation here today. 

Don Gavelek: And I point out one observation on the new docket issue. Sometimes 

we experience a situation where a filing is improperly filed. You have a settlement 

proceeding. And as far as closing the docket out - that would fall back to the situation 

of: withdraw it and refile it to get a proper. 

Judge Cintron: I can order that. 

Don Gavelek: I can’t order that. 

On line reader: So the first question online. Can you describe the process for eFiling

when protected or confidential documents are involved?

Keith Pierce: Under the eTariff XML format when you attach a document, there is a 

data element to select as to whether or not the document is public, CEII or privileged. 

And that is automatically recognized by the Commission software. And when it's 
Page 15 of 15

uploaded into eLibrary, it applies the proper restrictions as to who has access 

depending on the nature of the confidentiality that was selected.

On line reader: Second question, will this presentation be posted on the FERC.gov 

website?

Keith Pierce: Yes, and we believe that EBA will be posting it on their website also. 

Thank you very much for attending this meeting, this class and we hope that you 

learned something.