FERC’s Filing Procedures for

Settlements

February 1, 2017 

[Updated to reflect Chief ALJ 10/13/2017 Notice]

Keith Pierce and Don Gavelek

Federal Energy Regulatory Commission

1

Energy Bar Association Webinar
Objectives

 FERC’s Changing Filing Requirements

• How we got here

• Resources

 Rule 602 Settlements

 Pre-Arranged Filings

 Concluding Observations

2

Disclaimer:

The views expressed in this presentation are those of the presenters, and do not necessarily 

reflect the views of the Federal Energy Regulatory Commission, its Chairman, any individual 

Commissioner, or other members of its Staff. 18 C.F.R. § 388.104(a)

Federal Energy Regulatory Commission
FERC’s Filing Procedures

How we got here

 Filing Procedures have changed over time – for example:

• Regulations required:

– Filing 14 copies plus an original in paper format

– Fix paper size – 8 1⁄2 x 11 inches

– Minimum font size

• FERC’s business processes have evolved:

– Receiving paper filings and manually distributing the copies throughout 

the Commission

– Manually archiving paper filings into “Central Files”, subsequently 

replaced by manually scanning paper filings into precursors of eLibrary

– FERC’s organization has changed, e.g.: OPPR>OPR>OMTR>OEMR2

• Technology has evolved

– Typewriters>Wangs>desktops>laptops

– Media – paper>floppies>CDs>various internet protocols 3Federal Energy Regulatory Commission
FERC’s Filing Procedures

How we got here

 Commission has slowly adopted new information 

technology, new structures and new procedures to utilize 

technology

• Late 1980’s staff started to request data and rate designs in Lotus 

1-2-3, Quattro or dBase format

• Order No. 582 (1995) required NGA open access tariffs in both 

paper and electronic format (FASTR)

• Commission orders made available electronically (CIPS)

4Federal Energy Regulatory Commission
FERC’s Filing Procedures

How we got here

 Order No. 703, Filing Via the Internet (2007) – Water shed 

• Start of the Commission’s fully integrated filing procedures 

– eFiling – the gateway for the public to make filings with the Commission

– Commission’s internal systems –

o Docketing

o eLibrary – accepts many different native file formats including spreadsheets

o Case tracking

o Distribution

o Notice

– eService and eSubscription

• Order No. 703 left paper filing procedures in place

– Regulations still REQUIRED tariff filings to be in paper

– “Integrated” still required some manual processes

5Federal Energy Regulatory Commission
FERC’s Filing Procedures

How we got here

 Order No. 714 (2008; eff. April 2010)

• REQUIRED tariff filings to be filed only in electronic format 

• Residual Order No. 703 manual steps in the tariff filing process 

mostly eliminated

• Non-regulated entities may still file in paper

• Commission authorized OSEC to issue instructions pertaining to 

electronic file and electronic document formats: 

– “Issue instructions pertaining to allowable electronic file and document 

formats, the filing of complex documents, whether paper copies are 

required, and procedural guidelines for submissions via the Internet, on 

electronic media or via other electronic means.” 18 C.F.R. 375.302(z)

– Permits OSEC to update many electronic filing requirements to match 

changing technology 

6Federal Energy Regulatory Commission
 Staff guidance *

• www.FERC.GOV: 

– Documents and Filings tab

– eTariff tab –

o Commission Notices and Orders

o Instructive orders 

o Collection of FAQs

– Industries tab

• FERCOnline@ferc.gov

• Call Staff

 Third Parties **

FERC’s Filing Procedures

Resources

 OSEC’s Instructions

• Dozens of Instructions for 

different filings and “Forms” 

Generally:

– Regulated Entities: must file in 

electronic format

– All other parties: either paper or 

electronic format; electronic 

format preferred

• When new or revised 

instructions are issued, they are

– Noticed in a specific docket: 

e.g.: 

o RM07-16 for eFiling instructions

o RM01-5 for eTariff instructions; 

– Posted on the Commission’s 

web site

7Federal Energy Regulatory Commission

* Staff guidance does not necessarily reflect the views of the 

Federal Energy Regulatory Commission, its Chairman, any 

individual Commissioner, or other members of its Staff. 18 

C.F.R. § 388.104(a)

** FERC does not recommend or endorse any third party 

vendor, nor does the FERC review or evaluate any third party 

software used to make eFilings or eTariff filings with the 

Commission.
FERC’s Filing Procedures 

Resources (cont’d)

 OSEC’s Instructions - example

• Filing Guide/Qualified Documents List – Specific filing guidance by 

regulation

– Generally: Parts 35, 154, 284, 300 and 341 filings MUST be file in 

eTariff format 

8Federal Energy Regulatory Commission
Questions?

9Federal Energy Regulatory Commission
Settlement Filing Procedures

 Two general categories of settlements are filed 

with the Commission – different filing procedures

10Federal Energy Regulatory Commission

Rule 602 

Settlements

Pre-Arranged or PreAgreed Filings

• Settlements of issues in an established 

proceeding before the Commission

– Referred to as Rule 602 Settlements

• Settlements of issues between parties 

that are not before the Commission but 

need to be filed with the Commission

– Sometimes informally referred to as PreArranged or Pre-Agreed Filings
Rule 602 Settlements 

Definition

 § 385.602 (Rule 602): 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 (Rule 604). 

 “Offer of settlement" includes any written 

proposal to modify or amend an offer of 

settlement 

• Modifications restart Rule 602 comment period 11Federal Energy Regulatory Commission
Rule 602 Settlements 

Required Documents (pg 1 of 2)

• Transmittal Letter

• Addressed to the Secretary

• State to whom the Secretary should direct the Settlement

• Presiding Officer

• Commission

• Summarize requested actions

• Motions

• Waivers

• Interim Rates

• List of documents

• Whether public, CEII or Privileged (388.112/.113)

• Contact information

• eRegistered

• On the Commission’s service list

12Federal Energy Regulatory Commission
Rule 602 Settlements 

Required Documents (pg 2 of 2)

• Stipulation and Agreement

• Settlement offer

• Explanatory statement

• Copies of or references to any additional documents

• References to documents in eLibrary should include Accession Number. 

• If necessary, actual Tariff Records consistent with Order No. 714 

requirements

• Limit filing of actual Tariff Records to Motions to Accept Interim Rates

• Recommend to file actual Tariff Records in a subsequent Settlement 

compliance filing

• Other documents, e.g.:

• Motions

• Waivers

• List of consenting parties

• As required by Presiding Officer’s instructions

13Federal Energy Regulatory Commission
Rule 602 Settlements 

Filing Procedures

 If a Part 35, 154, 284 or 341 Proceeding:

• Chief ALJ instruction and OSEC Notice 12/1/2016: File in eTariff format

– Effective January 3, 2017

– Use Settlement specific Type of Filing Codes (ToFC) 

– Associate with the original eTariff Filing Identifier (Filing ID)

o OSEC will assign a new sub-docket to the Settlement filing (e.g.: -001) 

• No need to re-intervene – existing service list applies to all sub-dockets 

• Once a docket number is given to a Filing ID, continue to use that Filing ID in 

subsequent eTariff filings’ Associated Filing ID to prevent the proliferation of docket 

numbers

o If no Associated Filing ID, OSEC will issue a new root Docket No. (-000) 

• Complaint proceedings usually do not have an Associated Filing ID

• Parties advised to intervene as a new service list is started in the new root docket 

(See Electronic Tariff Filings, 130 FERC ¶ 61,047, at P 16 (2010))

o NOTE: The Settlement ToFC provides that the new sub- or new root docket is before the 

presiding officer – there will NOT be a Commission order “consolidating” or assigning 

the sub- or new root docket to the underlying proceeding 14Federal Energy Regulatory Commission
Rule 602 Settlements 

Filing Procedures

If a Part 35, 154, 284 or 341 Proceeding: (con’t)

– For proceedings with multiple dockets, put the non-Associated Filing ID 

docket numbers in the Filing Title (the Associated Filing ID’s provides 

the lead docket number) 

o See Electronic Tariff Filings, 130 FERC ¶ 61,047 (2010) for discussion 

Federal Energy Regulatory Commission

15
Rule 602 Settlements

Filing Procedures 

 File Settlement, all supporting documents and Tariff 

Records

• in a single filing, and 

• only once

– Duplicative and/or piecemeal filings create confusion 

– Questions as to whether multiple filings’ documents are truly 

identical

– Questions as to scope of Rule 602 filed comments and 

responses

• Exceptions

– Settlement requires actual interim rate tariff records in multiple eTariff regulated 

entities’ or Tariff Identifier data bases – Note: the secondary filings need only 

contain the Settlement’s Transmittal Letter and actual tariff records. 

– Settlement’s scope covers multiple and/or non-consolidated proceedings 16Federal Energy Regulatory Commission
Rule 602 Settlements

Comments and Reply Comments

 Rule 602 provides for comments not later than 20 days, and reply 

comments not later than 30 days after the date of filing.

• Rule 2007 applies (385.2007(a)(2)): 

– “The last day of any time period is included in the time period, unless it is a 

Saturday, Sunday, day on which the Commission closes due to adverse 

conditions and does not reopen prior to its official close of business, part-day 

holiday that affects the Commission, or legal public holiday ..., in which case the 

period does not end until the close of the Commission business of the next 

[business] day ...”

o The 20th and 30th days are independent of each other.

• Settlements are not subject to an OSEC Notice requirement

– But due to eFiling’s automated systems, OSEC’s Combined Notice may 

incorrectly include a Settlement filing with standard tariff filing notice time lines. 

– Such incorrect OSEC Notices cause considerable confusion for all

– Bring incorrect OSEC Notices to OSEC’s attention by email 

FERCOnline@ferc.gov

• File Comments and Reply Comments in the Settlement’s sub-docket 17Federal Energy Regulatory Commission
Rule 602 Settlements

Interim Rates

 File separately actual Tariff Records only when the Settlement 

provides for interim rates to go into effect before Commission 

approval of the Settlement [Chief ALJ 10/13/2017 Notice]

• Interim rate Tariff Records filings are not subject to separate Notice 

requirements. They are considered to be part of the Settlement 

and are subject to the Rule 602 comment periods.

• Motions to Accept Interim Rates are not subject to a Commission 

action date.

• OSEC directs Motions to Accept Interim Rates to OEMR. 

• OEMR may

– If the proposed interim rates are lower than the effective rates, refer the 

Motion to the Chief Administrative Law Judge (375.307(a)(1)(iv) and 

(a)(7)(v)); 

– Accept the Interim Rates by Delegated Letter Order (375.307(a)(1)(i) 

and (a)(7)(i)); or

– Take other action as appropriate.

18Federal Energy Regulatory Commission
Rule 602 Settlements

Supplements and Amendments

 Keep Supplements and Amendments in the same docket

• Use a the Settlement ToFC, and associate with the Settlement 

filing’s Filing Identifier

• New Rule 602 comment period

19Federal Energy Regulatory Commission
Rule 602 Settlements

Filing Procedures – Resources

 Regulations

 OSEC guides and instructions

 Staff’s www.ferc.gov posted guidance */

 Staff */

– eFiling - FERCOnline@ferc.gov

– eTariff - call appropriate OEMR’s Division Directors for current 

list

20Federal Energy Regulatory Commission

* Staff guidance does not necessarily reflect the views of the Federal Energy Regulatory 

Commission, its Chairman, any individual Commissioner, or other members of its Staff. 18 

C.F.R. § 388.104(a)
Start

Settlement 

Transmittal 

Letter

Transmittal Letter should 

indicate whether parties 

intend to transmit to 

presiding officer or 

Commission for action

Settlement

OEMR may act 

on Interim rates 

or refer to Chief 

Judge*

Interim 

Rates 

Motion

OALJDR 

Chief 

Judge or 

Presiding 

Officer

Parts 35, 154, 284, 300 and 341 Proceedings

As of January, 2017

To 

presiding 

officer?

No

Yes

Commission

Settlement

*Chief Judge only has 

delegated authority for 

LOWER rates 

Rule 602 Settlement 

between parties in a 

proceeding before the 

Commission

Settlements without interim rates:

• eTariff format required

• If Pro forma tariff records, as 

attachments only

Existing eTariff 

Proceeding:

• Use Settlement 

ToFC

• Secretary assigns 

new sub-docket 

New eTariff 

Proceeding:

• Use Settlement 

ToFC

• Secretary 

assigns new

docket number

Settlements with interim rates: 

• eTariff format required

• Actual tariff records

• File settlement and interim rates 

separately

Existing eTariff 

Proceeding:

• Use Settlement 

ToFC

• Secretary assigns 

new sub-docket 

New eTariff 

Proceeding:

• Use Settlement 

ToFC

• Secretary 

assigns new

docket number

Order on 

Interim 

Rates

Settlement Rule 602 

Filing Procedures Flow Chart

Federal Energy Regulatory Commission

21
Questions?

22Federal Energy Regulatory Commission
Pre-Arranged or Pre-Agreed Filings

Definition

 Does not involve settlement of a pending or open 

proceeding before the Commission

 Regulated entity and interested parties have reached an 

agreement in advance of filing 

 There are no Commission regulations that specifically 

address Pre-Arranged or pre-agreed Filings

 All Pre-Arranged or pre-agreed Filings are managed as if 

they were standard tariff filings (Business Process), such 

as

– No specific ToFC for Pre-Arranged or pre-agreed Filings

– Standard docketing rules

– Program standard notice, intervention and comment periods 

o Rule 602 comment periods do NOT apply

23Federal Energy Regulatory Commission
Pre-Arranged or Pre-Agreed Filings

Pros and Cons

 Pro - reduced regulatory risk

• Lowers risk of protests

• Lowers risk of suspension, Commission-determined different effective date, and refund 

obligations

• Lowers overall regulatory costs of implementing tariff changes

– Reduces the tariff filing documentation requirement (“abbreviated filing”)

– Increases the probability proposed effective date will occur

• Commission has a preference that issues be resolved by consensus 

– Litigated proceedings take considerable amount of time and expense to resolve

– Significant probability that litigated cases will be appealed to the courts

– End results of litigated proceedings can be unpredictable for all parties

 Con – the unexpected

• Unexpected protests

– Abbreviated filing’s supporting documentation may be inadequate to address protests – Commission 

actions of Suspended or Rejected

– Reputational risk for not consulting all interested parties 

• Unexpected Commission action

– Filing found to be deficient – actions of Suspended or Rejected

– Consensus agreement found to be unduly preferential or discriminatory, not just and reasonable, 

and/or contrary to Commission policy, regulations or applicable statutes – actions of Suspended or 

Rejected

24Federal Energy Regulatory Commission
Pre-Arranged or Pre-Agreed Filings

Business Process

 Two available Business Processes (see eTariff Implementation Guide for definitions)

• Normal/Statutory – filings proposed with a statutory or regulatory action date

• Compliance – filings with no regulatory action date

 Choose Business Process on the basis of what is the desired 

outcome, not on the basis that there is a pre-arranged agreement

• Want to place into effect actual Tariff Records with the Commission acting 

pursuant to a statutory or regulatory action date?

– Normal/Statutory ToFC with actual Tariff Records

• Want a pre-approval of the pre-arranged or pre-agreed filing?

– Compliance ToFC with only Pro Forma Tariff Records (see Dominion 

Transmission, Inc., 111 FERC ¶ 61,285 (2005)); followed up with a subsequent 

Compliance filing with actual implementing Tariff Records

 It is the Regulated Entity’s choice as which Business Process to 

propose, but it is the Commission’s decision as to which 

Business Process is appropriate 25Federal Energy Regulatory Commission
Pre-Arranged or Pre-Agreed Filings

Resources

 Pre-filing meeting with Staff pursuant to §§ 35.6, 154.8, 

341.12 or 388.104

• Pre-arranged agreements often include unique proposals, 

provisions and time lines. Staff can provide suggestions as to 

documentation, explanation, and tariff construction

• Disclaimer: Staff guidance does not necessarily reflect the views of 

the Federal Energy Regulatory Commission, its Chairman, any 

individual Commissioner, or other members of its Staff. 18 C.F.R. §

388.104(a)

 Regulations

 OSEC guides and instructions

 Staff’s www.ferc.gov posted guidance 

26Federal Energy Regulatory Commission
Start

“Settlement” between 

individuals (e.g. a regulated 

entity and others) outside of 

any Commission proceeding 

e.g. Tariff Filings

PreApproval

?

Regulated entity eFiles in eTariff

using either Normal/Statutory or 

Compliance ToFC

Choice of ToFC

determines if filing is 

subject to statutory action 

date. Filing title should 

not include word 

“Settlement” 

Actual 

Tariff 

records

Tariff 

Filing

Initiate new 

proceeding:

1. Assign new 

docket number

2. Issue notice for 

interventions, 

comments and 

protests

No

Regulated entity eFiles in 

eTariff using Compliance Type 

of Filing Code (ToFC). Filing 

title should not include word 

“Settlement” 

Yes

Parts 35, 154, 284, 300 and 341 Proceedings

As of January, 2017

Commission

Pre-filing 

w/ staff

27

Pre-Arranged or Pre-Agreed Filings 

Filing Procedures Flow Chart

Federal Energy Regulatory Commission

Pro-forma 

Tariff 

records

Tariff 

Filing
Questions?

28Federal Energy Regulatory Commission
Settlements – 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 lists 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 provides service to any party 

on service lists maintained by the presiding officer. 

29Federal Energy Regulatory Commission
Settlements – Points to Remember

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 §§ 388.112 &113 

instructions

• If documents or exhibits are included by reference, should include clear citation to the 

document in eLibrary: e.g.: Pre-filed Testimony of LDC, Inc., Ex. LDC-5, Docket No. 

ER16-xxx-000, Accession No. 20161212-xxxx

 If requesting comment time-line other than that provided by § 385.602(f), 

must provide a motion to the presiding officer. Include the motion as 

part of the filed settlement package.

 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. 30Federal Energy Regulatory Commission
Settlements – Points to Remember

Settlement

 Identify ALL items and proceedings, motions, appeals, etc. 

that are the subject of the Settlement, including those 

before the court

• Clearly identify the items or proceedings: e.g.: Docket No. 

ER16-xxx-000, Request for Rehearing of LDC, Inc., Accession No. 20161212-xxxx

• Clearly state the disposition of each of item or proceedings: e.g.: 

withdraw of protest, filing, rehearing or appeal

 Part 154 settlements of general rate cases

• A separate provision providing an agreement as to what values the 

pipeline should use for the exogenous variables in its NGA section 

7 certificate application’s initial rate calculation.

31Federal Energy Regulatory Commission
Settlements – Points to Remember

Settlement (cont’d) 

 If the settlement permits severing of contesting parties

• Provisions as to how the tariff will include filed and/or effective rate tariff 

records and Settlement rate tariff records applicable to contesting and 

consenting customers

• Provisions addressing billing of contesting parties pending resolution of 

reserved issues

• Provision as to how contesting parties may become consenting parties

 List and define any reserved issues

 Interim Rates

• If interim rates are to be charged, there must be tariff records filed in eTariff. 

If interim rates are part of the Settlement, include the interim Tariff Records 

as part of the settlement filing a separate filing. [Chief ALJ 10/13/2017 Notice]

• Provisions addressing re-billing of customers in the event the Settlement is 

not approved 

– Timing?

– Refunds?

32Federal Energy Regulatory Commission
Settlements – Points to Remember

Settlement (cont’d) 

 Come-back requirements

• Date of come-back filing or effective date

• Does come-back filing date consider the statutory notice period and 

possibility of full suspension

• Documentation expected as part of the come-back requirement

• Impacts of other activities, filings, etc. on scope of the come-back 

requirement

• Rights to early come-back

 Formula Rate Settlements

• If the settlement includes exogenous variables to a formula rate (e.g.: ROE, 

depreciation, PBOPs), it is the regulated entity’s responsibility to place 

those values into its tariff (ODEC, 133 FERC ¶ 61,261 (2010))

• If a formula or calculations are the subject of the settlement, the formula 

should be provided in spreadsheet format. 33Federal Energy Regulatory Commission
Settlements – Points to Remember

Settlement (cont’d) 

 Compliance obligations

• Clearly stated compliance requirements

– Documentation requirements

– Formulas/calculations/methodologies

• Timing of compliance obligations

• Responsibilities of each party for compliance obligations

• Rights of each party with respect to any compliance filing

 Tariff Records

• If settlement provides for revised terms and conditions of service and/or 

rates, revised tariff records likely required. Advisable to file only pro forma

tariff records as part of settlement

• If settlement provides for revised tariff text/rates, all tariff records within 

locked-in period may need to be revised in a compliance filing(s)

• Limited exception if: 

– no other pending issues involving the tariff record in the subject proceeding or 

other proceeding(s), including those on appeal

– parties agree tariff need not be revised 

34Federal Energy Regulatory Commission
Settlements – Points to Remember

Filing Procedures

 Use standard eTariff filing precautions and procedures 

 Use eTariff specific Settlement ToFCs to file settlements

• Meta data rules – if a conflict between the eTariff XML data and the 

document contents, the eTariff XML data rules

• Correct mistakes with a new Settlement ToFC eTariff filing

• If a Settlement filing must be withdrawn:

– Use a Withdrawal ToFC

– File the replacement eTariff Settlement filing first to ensure the 

Commission properly receives it before making the Withdrawal filing

35Federal Energy Regulatory Commission
Settlements – Points to Remember

 If OSEC assigns a new root docket number (-000) to the eTariff 

filed settlement:

– 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 advised (Electronic Tariff Filings, 130 FERC ¶ 61,047 (2010))

o Intervene in the new docket number

o File comments in both docket numbers

– OSEC will not change eTariff assigned docket numbers

o OSEC will not correct regulated entities’ eTariff XML mistakes

o OSEC treats mistakenly assigned new docket number no differently than a 

correctly assigned docket number –

• The new docket number is part of the presiding officer’s proceeding

o Presiding officer may require regulated entity to correct mistake and close the 

new docket number

36Federal Energy Regulatory Commission
Questions on any Settlement or 

Pre-arranged filing procedures?

37Federal Energy Regulatory Commission