• FERC Clarifies Policy on Amendments to FPA Section 205 Filings
  • January 12, 2012 | Authors: Kevin C. Fitzgerald; Peter S. Glaser; Kevin C. Greene; Clifford S. Sikora; Lara L. Skidmore
  • Law Firms: Troutman Sanders LLP - Washington Office ; Troutman Sanders LLP - Atlanta Office ; Troutman Sanders LLP - Washington Office ; Troutman Sanders LLP - Portland Office
  • On December 29, 2011, the Federal Energy Regulatory Commission (“FERC or Commission”) issued an order clarifying its policy regarding amendments to pending Federal Power Act (“FPA”) Section 205 rate schedule filings, tariff filings, or service agreement filings. Mississippi Power Company, 137 FERC ¶ 61,241 (2011)  The Commission stated that filings “that do not revise a rate schedule, tariff, or service agreement section, but instead only add or revise supplemental materials submitted as part of the initial application (such as revised testimony or revised exhibits) are considered on an individual basis to determine whether such changes are so significant that they would constitute an amendment that operates to extend the date by which the Commission must act.” Under FPA Section 205, the Commission has 60 days to act on a filing (accept, suspend or reject) unless the filing is amended, and a new 60-day clock is established. 16 U.S.C. § 824d(d) (2006)

    Prior to the issuance of Mississippi Power Company, the Commission considered any amendment or supplemental submittal during the pendency of a Section 205 filing to re-set the 60-day clock for Commission action.  The Commission articulated this policy in a November 1991 Duke Power Company case.  Additionally, the Commission’s Order No. 714 stated that amendments or modifications can have a substantive effect on an initial submission, and any filing of an amendment or modification to a tariff provision would toll the clock on the prior filing and establish a new 60-day notice period. Now, a supplemental filing will not automatically be viewed as an “amendment,” causing the need for a new 60-day clock.

    Unfortunately, FERC gave little guidance as to how Commission Staff will determine if a submittal made during the pendency of Section 205 filing will be deemed significant enough to be classified as an “amendment” requiring a new 60-day clock. However, the Commission did indicate that a filing that revises a rate schedule, tariff or service agreement will most likely be significant enough to constitute an amendment.