FERC Filings
REQUEST OF THE ELECTRIC POWER SUPPLY ASSOCIATION FOR INTERVENTION, CLARIFICATION AND REHEARING OF THE COMMISSION’S NOVEMBER 20, 2001 ORDER ESTABLISHING REFUND EFFECTIVE DATE AND PROPOSING TO IMPOSE CONDITIONS ON MARKET-BASED RATE TARIFFS AND AUTHORIZATION
REQUEST FOR CLARIFICATION
In its November 20th Order, the Commission instituted an investigation pursuant to Section 206 of the FPA proposing a new tariff condition on all energy wholesale sellers with market-based rate authority which would prohibit “anticompetitive behavior or the exercise of market power.” The Commission also established a refund effective date 60 days after the publication of the investigation in the Federal Register. Pursuant to the November 20th Order, both the proposed condition and refund effective date were to become effective 60 days following publication of the notice of the investigation in the Federal Register, that is, January 27, 2001. As the Commission stated:
The Commission proposes to apply the condition to all public utility sellers currently authorized to sell at market-based rates and to make the condition effective 60 days following publication in the Federal Register of the notice of the Commission’s initiation of this proceeding.
In response to motions filed by EPSA and others, the Commission issued a Notice of Extension of Time on November 30, 2001 (November 30th Notice). The November 30th Notice extends the time for filing initial comments, arguments and evidence pursuant to the November 20th Order. In addition, the November 30th Notice states that “the Commission will extend the proposed effective date of the condition proposed in this proceeding until such time as is determined by the Commission in its Order that responds to the comments filed herein.”
EPSA requests that the Commission clarify that the November 30th Notice intended to postpone both the effective date of the Commission’s proposed tariff condition and the refund effective date initially set in the November 20th Order. In other words, the refund effective date and the effective date of the condition should be the same date, i.e., some date after the Commission acts on the comments received in this proceeding.
The clarification EPSA seeks will avoid any inadvertent incongruity between the effective date of the proposed tariff condition and liability for its violation. If the November 30th Notice delaying the effective date of the Commission’s proposed condition did not also postpone the corresponding refund effective date, the Commission could later find itself in the awkward position of holding sellers liable for violating a tariff condition before the condition itself was known and effective. Because the Commission has extended the time to file comments, arguments and evidence regarding its proposal, there is likely to be a significant passage of time before any new tariff condition is imposed and thus a mismatch between the effective date of the condition and the refund effective date. This potential for retroactivity should be avoided. Not only is it unfair to market participants who have a legitimate right to know with certainty and specificity the rules by which they must conduct their business, but also to the market as a whole and, ultimately, to energy consumers who will bear the increased costs that uncertainty engenders.
Nor will setting the refund effective date to correspond with the postponed effective date of the Commission’s proposed condition on market-based rate authorization run afoul of the agency’s statutory authority. Under section 206(b), the Commission may set a refund effective date anytime during the five-month period beginning 60 days after notice of the proceeding is published in the Federal Register. Thus, in this instance, the refund effective date may be set as late as April 27, 2002, which should give the Commission ample time to act on the comments received.