UNITED STATES OF AMERICA76 FERC 61,009 FEDERAL ENERGY REGULATORY COMMISSION Before Commissioners: Elizabeth Anne Moler, Chair; Vicky A. Bailey, James J. Hoecker, William L. Massey, and Donald F. Santa, Jr. Promoting Wholesale Competition ) Docket No. RM95-8-000 Through Open Access ) Non-discriminatory Transmission ) Services by Public Utilities ) ) Recovery of Stranded Costs by ) Docket No. RM94-7-001 Public Utilities and Transmitting ) Utilities ) ) ) Open Access Same-Time ) Docket No. RM95-9-000 Information System (formerly ) Real-Time Information Networks) ) and Standards of Conduct ORDER CLARIFYING ORDER NOS. 888 AND 889 COMPLIANCE MATTERS (Issued July 2, 1996) This order responds to recent motions for clarification of certain Order No. 888 1/ compliance matters and also addresses other compliance matters that have come to the Commission's attention. It contains clarifications applicable to all public utilities that are required, pursuant to Order Nos. 888 and 889, 2/ to make compliance filings (or seek waivers) on or before July 9, 1996, November 1, 1996 and December 31, 1996, as well as non-public utilities that seek waiver of the Order No. 888 pro forma tariff reciprocity provision. 1/ Promoting Wholesale Competition Through Open Access Non- discriminatory Transmission Services by Public Utilities, and Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, 61 Fed. Reg. 21,540 (May 10, 1996); FERC Stats. & Regs.  31,036 (1996) (Order No. 888). 2/ Open Access Same-Time Information System (formerly Real-Time Information Networks) and Standards of Conduct, 61 Fed. Reg. 21,737 (May 10, 1996); FERC Stats. & Regs.  31,037 (1996) (Order No. 889). Docket Nos. RM95-8-000, - 2 - RM94-7-001 and RM95-9-000 Motions for Clarification On May 13, 1996, the Coalition for a Competitive Electric Market (CCEM) 3/ filed a motion for expedited clarification of the requirements for serving copies of Order No. 888 compliance tariff filings. On June 12, 1996, Joint Movants 4/ filed a request for clarifications of other aspects of Order No. 888 compliance filings. CCEM asks the Commission to clarify that public utilities are to provide a copy of their compliance tariff filings on electronic diskette (in word-processing format containing a redline version comparing the compliance tariff with the pro forma tariff), via overnight delivery, to any eligible customer (as well as any state regulatory agency) that requests a copy of the compliance tariff in advance of its filing with the Commission and that is prepared to pay the costs associated with such service. In support of its request, CCEM submits that while the requirements for serving copies of Order No. 888 compliance tariffs correctly focus on ensuring that existing customers and the state agencies that regulate public utilities receive the filings in sufficient time to permit analysis and response within the 15-day comment period, they neglect to provide many of the new entrants in the electric services industry with a meaningful opportunity to participate in the compliance proceedings. CCEM explains that it will be difficult for such new entrants to meet the 15-day comment deadline if they are required to wait for the public notice of the compliance filing to issue. CCEM states that it may take several days after the actual filing date for public notice to be issued and for interested parties to obtain a copy of the filing from the Commission's Public Reference Room or elsewhere. Joint Movants request (1) a thirty-day enlargement of the time within which parties may respond to section 205 and/or 3/ CCEM consists of Coastal Electric Services Company, Destec Power Services, Inc., Electric Clearinghouse, Inc., Enron Power Marketing, Inc., Equitable Power Services Company, KCS Power Marketing, Inc., MidCon Power Services Corp., PanEnergy Power Services, Inc., and Vitol Gas & Electric Services, Inc. On June 26, 1996, CCEM filed a supplemental motion for clarification. This order does not address that motion. 4/ American Public Power Association, Electricity Consumers Resource Council, National Rural Electric Cooperative Association, and Office of the Ohio Consumers' Counsel. Docket Nos. RM95-8-000, - 3 - RM94-7-001 and RM95-9-000 section 206 transmission filings made by Group 1 and Group 2 public utilities on or before July 9, 1996 pursuant to Order No. 888; (2) the establishment of a requirement that public utilities submit electronic versions of their filings, including redline versions; and (3) that the Commission post such filings on the Commission's Electronic Bulletin Board. In support of their request, Joint Movants argue that the 15-day limit established in Order No. 888 is not sufficient to permit a reasoned analysis of the transmission filings that will be submitted pursuant to Order No. 888. Joint Movants state that the interests of buyers and sellers extend beyond the tariffs of the existing transmission host utility and will require more than 15 days to analyze the transmission filings. Joint Movants further state that utilities making the filings will not be prejudiced by an extension of time because the Commission has already suspended the filings and the extension should not materially affect the ultimate processing of the applications at the Commission. Finally, Joint Movants declare that requiring electronic submissions and posting on the Commission's bulletin board would increase the efficiency and lower the costs of the entities reviewing the filings, and should impose virtually no incremental burden on filing utilities because they will have prepared the filing in electronic format in any event. Answers to the Motions A number of entities filed answers in support of the motions of Joint Movants and/or CCEM. 5/ Several of these entities, in addition to filing answers to Joint Movants' and CCEM's motions, requested that public utilities be required to provide one copy of the compliance filing to the requesting customer and one copy to a designated consultant or counsel of the customer, and that, 5/ National Association of Regulatory Utility Commissioners; Municipal Electric Utilities Association of New York State; Seminole Electric Cooperative, Inc.; North Carolina Municipal Power Agency Number 1 and North Carolina Eastern Municipal Power Agency; M-S-R Public Power Agency; Ralph R. Mabey, Chapter 11 Trustee for Cajun Electric Power Cooperative, Inc.; Modesto Irrigation District; Metropolitan Water District of Southern California; North Carolina Electric Membership Corporation; Duncan, Weinberg, Miller & Pembroke, P.C.; Transmission Agency of Northern California; Indiana Municipal Power Agency; American Municipal Power-Ohio, Inc.; City of Cleveland; Cities of Anaheim, Azusa, Banning, Colton and Riverside, California; Transmission Access Policy Study Group; Indiana Office of Utility Consumer Counselor; Southwest Transmission Dependent Utility Group; and Missouri Basin Municipal Power Agency. Docket Nos. RM95-8-000, - 4 - RM94-7-001 and RM95-9-000 in addition to the suspension established in Order No. 888, the Commission issue a blanket order setting all of the compliance filings for hearing. The Nevada Power Company filed an answer opposing CCEM's request that filing utilities provide a copy of the tariff to any customer requesting a copy because Order No. 889 already requires utilities to post a copy of their tariffs on OASIS. 6/ Discussion Joint Movants' and CCEM's Motions We will grant Joint Movants' motion as follows. We will allow a 15-day extension of time (i.e., a total of 30 days) for entities to respond to the compliance filings made pursuant to Order No. 888. This includes responses to pro forma tariff filings and rate filings that accompany pro forma tariff filings. This should provide interested entities sufficient time to analyze the compliance filings and, at the same time, permit the Commission to act in a reasonable time to determine whether any unacceptable rates, terms or conditions should be summarily rejected or whether a hearing should be initiated. In addition, because Order No. 888 already requires public utilities to submit to the Commission an electronic version of their compliance tariffs, we will, as requested, post all such filings on the Commission's Electronic Bulletin Board 7/ for 6/ We note that, under Order No. 889, operation of an OASIS need not commence until November 1, 1996, well after the compliance tariff filing date of July 9, 1996. 7/ Electronic filings will be available in their original format in the Open Access Tariff Filings directory of the FERC Electric Power Data Bulletin Board, which can be reached at the same phone number as FERC CIPS (1-800-856- 3920). The FERC Bulletin Board also can be accessed via the FedWorld system through dialup modems or over the Internet. By modem: Dial 703-321-3339 and logon to the FedWorld system. After logging on to the FedWorld system, choose f. Government and Regulatory and then type: /go FERC By Internet: Option 1 (continued...) Docket Nos. RM95-8-000, - 5 - RM94-7-001 and RM95-9-000 the convenience of all interested entities. 8/ However, to assure the prompt and accurate posting of these filings, we cannot accept electronic filings in any word processor format, as permitted in Order No. 888, but will require public utilities to submit electronic versions in Wordperfect 5.1/5.2 or ASCII format, with the diskette labeled as to the name of the utility, the type of filing contained on the diskette (e.g., initial open access tariff, service agreement), the date of the filing, and the format used. 9/ 7/(...continued) Telnet to: fedworld.gov Select [1] FedWorld option Logon to the FedWorld system Choose f. Government and Regulatory Type: /go FERC Option 2 Point your Web Browser to: http://www.fedworld.gov Scroll down the page to select FedWorld Telnet Site Select [1] FedWorld option Logon to the FedWorld system Choose f. Government and Regulatory Type: /go FERC 8/ Several entities, in answers to CCEM's and Joint Movants' motions, requested that we require public utilities to provide one copy of a compliance filing to the requesting entity and an additional copy to the requesting entity's consultant or counsel. We will not require public utilities to undertake that additional burden. A public utility need provide only one electronic copy per requesting entity. The requesting party, as easily as a public utility, can provide hard copies and electronic versions to any of its consultants or counsel that it desires. Moreover, we will not issue a blanket order setting all of the compliance filings for hearing, as requested by several entities in answers to CCEM's and Joint Movants' motions. Such a blanket procedure would be an administrative burden on the Commission and, in any event, would be unnecessary. We will review all of the compliance filings and, to the extent circumstances require, we will set individual proceedings for hearing. 9/ This same electronic format should also be used for future filings made with respect to open access tariffs and related service agreements. Order No. 888, mimeo at 386 and 398; FERC Stats. & Regs.  31,036 at 31,766 and 31,770. (continued...) Docket Nos. RM95-8-000, - 6 - RM94-7-001 and RM95-9-000 We will also grant CCEM's motion for clarification as follows. We agree that all eligible customers 10/ under an open access transmission tariff (whether existing customers or potential customers) as well as state regulatory agencies should have a reasonable opportunity to evaluate and respond to public utility compliance tariffs under Order No. 888. While the posting of the tariff filings on the Commission's Electronic Bulletin Board should resolve the concerns of most eligible customers, we will also require public utilities to provide a copy of their compliance filings on electronic diskette (via overnight delivery) to any eligible customer (as well as any state regulatory agency) that requests a copy. In order to receive (by no later than July 10, 1996) such a copy, an eligible customer (or any state regulatory agency) must make its request prior to July 9, 1996 and must indicate its agreement to pay the costs associated with such service. 11/ 9/(...continued) Moreover, for the convenience of all interested entities, entities filing waiver requests from the requirements of Order Nos. 888 and 889 must submit such requests in the electronic format described above. All of these filings will also be posted on the Commission's Electronic Bulletin Board. 10/ See Order No. 888 Pro Form Tariff, Section 1.11 (definition of "eligible customer"). 11/ We will deny CCEM's and Joint Movants' requests that the Commission require a public utility to provide its compliance filing to eligible customers in redline format. In Order No. 888, contrary to Joint Movants' assertion, we did not require initial compliance filings to be submitted in redline/strikeout format. We concluded that this was unnecessary because public utilities may only propose changes to the final rule pro forma tariff that reflect regional practices, which public utilities are required to identify in their filings. Order No. 888, mimeo at 398; FERC Stats. & Regs.  31,036 at 31,770. With electronic copies of the compliance filings and the required identification of regional practices, interested entities should have no difficulty comparing the compliance tariff filings with the final rule pro forma tariff. We note that for future tariff filings by public utilities we have required public utilities to identify deviations from their compliance tariff and provide, to the extent practical, a redlined version of the tariff. Order No. 888, mimeo at 386 and 398; FERC Stats. & Regs.  31,036 at 31,766 and 31,770. Because ASCII does not support redline/strikeout, utilities (continued...) Docket Nos. RM95-8-000, - 7 - RM94-7-001 and RM95-9-000 Docketing of Filings Made Pursuant to Order Nos. 888 and 889 To assist the Commission in processing filings made pursuant to Order Nos. 888 and 889, and to permit interested entities to track more easily these filings, we establish the Docket prefix "OA" for all such filings. Thus, all entities submitting compliance filings required by Order No. 888 due on or before July 9, 1996 and on or before December 31, 1996, compliance filings required by Order No. 889 due on or before November 1, 1996, and requests for waivers of all or part of the requirements of Order Nos. 888 and 889 should include the prefix "OA" on such filings. Waiver Requests Must be Separately Filed and Will Not be Considered as Part of Requests for Rehearing of Order Nos. 888 and 889 In our initial review of requests for rehearing of Order Nos. 888 and 889, we have discovered that several entities, as part of their rehearing requests, have sought waiver of certain aspects of Order Nos. 888 and 889. In Order No. 888, the Commission explained the fact-specific nature of waiver requests: Because the possible scenarios under which small entities may seek waivers from the Final Rule are diverse, they are not susceptible to resolution on a generic basis and we will require applications and fact- specific determinations in each instance. We note here that any waivers that we may grant depend upon the facts presented in each case. [12/] Thus, the Commission will not address waiver requests in a generic rulemaking proceeding, but will require entities seeking waiver of all or part of Order Nos. 888 and 889 to submit separate, fact-specific requests, which will be docketed, as discussed above, in separate OA proceedings. Moreover, 11/(...continued) submitting changes to tariffs and service agreements in ASCII format must provide a detailed list of changes in ASCII format. However, the Commission prefers that entities use the WordPerfect 5.1/5.2 format and strongly encourages entities to submit a redline/strikeout version of their initial compliance tariff and all future tariff filings. 12/ Order No. 888, mimeo at 637-38; FERC Stats. & Regs.  31,031 at 31,854. Docket Nos. RM95-8-000, - 8 - RM94-7-001 and RM95-9-000 consistent with our decision to allow interested entities 30 days to respond to compliance filings made pursuant to Order No. 888, we will allow interested entities 30 days to respond to any waiver requests submitted in OA proceedings. Status of Existing Contracts The Commission also wishes to clarify another matter concerning the status of existing contracts in relation to open access tariffs. In Order No. 888, the Commission explained the effect of Order No. 888 on existing contracts: because we are not abrogating existing requirements and transmission contracts generically and because the functional unbundling requirement of the Final Rule applies only to new wholesale services, the terms and conditions of the Final Rule pro forma tariff do not apply to service under existing requirements contracts. However, if a customer's existing bundled service (transmission and generation) contract or transmission-only contract expires, and the customer takes any new transmission service from its former supplier, the terms and conditions of the Final Rule tariff would then apply to the transmission service that the customer receives. [13/] Additionally, section 15.6 of the pro forma tariff provides: Eligible Customers receiving transmission service under other agreements on file with the Commission may continue to receive transmission service under those agreements until such time as those agreements may be modified by the Commission. Thus, to avoid any confusion, we clarify that the filing of an open access compliance tariff on or before July 9, 1996 does not supersede an existing transmission agreement that has been accepted by the Commission unless specifically permitted in the agreement on file. If a utility seeks to modify or terminate an existing transmission agreement, it must separately file to modify or terminate such contracts under appropriate procedures under section 205 or 206 of the Federal Power Act, consistent with the terms of its contract. 13/ Order No. 888, mimeo at 87-88; FERC Stats. & Regs.  31,036 at 31,665. Docket Nos. RM95-8-000, - 9 - RM94-7-001 and RM95-9-000 The Commission orders: Order Nos. 888 and 889 are clarified as discussed in the body of this order. By the Commission. ( S E A L ) Lois D. Cashell, Secretary.