costs as required by the Independent Offices Appropriations Act (IOAA).6

Discussion

The narrow issue presented here is whether the Secretary erred in assessing a fee of $5,780 for the filing of Service Schedule E on behalf of CIPS. However, a necessary threshold determination is whether the Commission's filing fees for rate schedule filings under sections 205 and 206 of the Federal Power Act, as effective pursuant to Commission Order Nos. 494 and 494-A, are fair and based on the Commission's costs as required by the IOAA.8

In recent proceedings, CIPS and other utilities have challenged the Commission's filing fees for electric rate filings on the grounds that the fees violated the IOAA.9 Those cases were remanded at the request of the Commission so that the Commission might reconsider its orders and potentially dispose of the grounds for appeal.10

Under the IOAA, the Commission is authorized to establish fees for the services and benefits the Commission provides. Under the generic order establishing the particular filing fees that existed at the time this dispute arose, the Commission set its filing fees based on the work associated with review of filings11 and pursuant to that order was entitled to assess a filing fee of $5,780. However, in recognition of the fact that the specific filing fee at issue here was challenged by CIPS in the instant rehearing, that the generic order establishing that particular filing fee was challenged and subsequently remanded to the Commission at our request, that the Commission subsequently changed its filing fees, in part, for the reasons

631 U.S.C. § 9701(b) (1988).

'After Union Electric's filing of Service Schedule E on behalf of CIPS, the Commission's regulations were amended to require a filing fee of $6,630.00. 54 Fed. Reg. 12,901 (1989) (codified at 18 C.F.R. § 381.502(a) (1990)).

8 Filing fees under the Independent Offices Appropriations Act of 1952, Order No. 494, FERC Statutes and Regulations 30,809, at pp. 31,007, 31,096, reh'g denied, Order No. 494-A, 43 FERC 161,464 (1988) (codified at 18 C.F.R. § 381.502 (1989)). These orders made effective the $5,780 fee at issue here.

9 Southwestern Electric Power Company v. FERC, Nos. 88-1507, 1518 and 1546 (D.C. Cir. remanded August 11, 1989) (Challenge of fees imposed under Commission's Order No. 435 [FERC Statutes and Regulations 30,663], effective November 4, 1985 through May 30, 1988); Central Illinois Public Service Company v. FERC, No. 88-1545 (D.C. Cir, remanded August 11, 1989) (Challenge of fees imposed under Commission's Order Nos. 494 and 494-A, effective May 31, 1988).

CIPS asserts on rehearing, and that the Commission could have applied the new filing fees (which are lower than the pre-existing fees) retroactively on a generic basis, we believe it appropriate to exercise our discretion in this proceeding and to impose a lesser filing fee. We believe that our latest generic order establishing filing fees provides a reasonable and justifiable filing fee to impose in these circumstances. Accordingly, as explained more fully below, rather than assess a filing fee of $5,780, we will instead assess a filing fee of $2,970.

As just noted, the Commission has adopted a new fee schedule. 12 The adoption of the new fee schedule addresses the issues identified by the court in Raton Gas Transmission Company v. FERC13 and resolves the matters set forth in the Commission's motion for remand in Southwestern Electric Power Company v. FERC 14 and Central Illinois Public Service Company v. FERC.15 Under the new fee schedule, filings will be assigned to one of five fee classes based on the type of filing, ranging from the simplest rate schedule filings to the most complex. The fee is based on the actual cost to the Commission of processing an average filing within each class. The new fee schedule also implements categorical reductions proposed in order to ameliorate potential unfairness or hardship. The Commission will apply the new fee schedule to Union Electric's filing.'

16

Under the new fee schedule, Class II rate filings are those filings under sections 205 and 206 of the Federal Power Act that have an effect on the rate the utility charges but do not involve rate decreases or rate increases. After reexamining Union Electric's July 21, 1988 filing, the Commission finds that the filing is a

10 See, e.g., Commission's Motion for Remand at 2, Central Illinois Public Service Company v. FERC, No. 88-1545 (D.C. Cir. remanded August 11, 1989).

11 See, e.g., FERC Statutes and Regulations ¶ 30,809, at pp. 31,088-89. As discussed infra, our latest generic order establishing filing fees also sets filing fees based on the work associated with review of filings.

12 Revision of Rate Schedule Filings Under Sections 205 and 206 of the Federal Power Act, Order No. 527, 55 Fed. Reg. 41,996, [FERC Statutes and Regulations 30,900] (1990), clarified, Order No. 527-A, [FERC Statutes and Regulations ¶ 30,912] (1991).

13 852 F.2d 612, 619 (D.C. Cir. 1988).

14 No. 88-1507 et al. (D.C. Cir. remanded August 11, 1989).

15 No. 88-1545 (D.C. Cir. remanded August 11, 1989).

16 Cf. Revision of Filing Fees for Natural Gas Rate and Tariff Filings, Order No. 506, 53 Fed. Reg. 44,182, FERC Statutes and Regulations ¶ 30,836, at p. 31,258 (1988).

II. PG&E's Request for Rehearing PG&E seeks rehearing only of the Commission's determinations that the dispute is appropriate for summary disposition, and that PG&E is prohibited from collecting the true-up amounts from the complainants. In particular, PG&E states that the Commission erroneously held that the 3.66 mills/kWh rate that was provided in the Temporary Rate Implementation Procedure among the parties is the only rate that PG&E may charge the complainants. PG&E also states that the Commission erroneously held that this rate cannot be trued-up because the Temporary Rate Implementation Procedure provides that adjustments may be made only if the California Public Utilities Commission (California Commission) issues a new decision modifying the interim rates. PG&E further claims that the complainants' argument is erroneous that the 3.66 mills/kWh rate adjustment provided in the Temporary Rate Implementation Procedure fixed the relief to which PG&E was entitled under the Interim Agreement by reason of the initial and interim California Commission Diablo rate decisions. PG&E states that the complainants' argument contradicts the clear intent of the parties that is specified in other parts of the Temporary Rate Implementation Procedure, and PG&E supports this statement with an affidavit from one of the negotiators of the Temporary Rate Implementation Procedure. The affidavit repeats PG&E's claims made in its earlier filings that: (1) the complainants refused to pay the full 9.96 mills/kWh interim rate adjustment that PG&E was seeking and agreed instead to pay 3.66 mills/kWh, subject to true-up to the level finally authorized by the California Commission; and (2) this intent and agreement were provided in the Temporary Rate Implementation Procedure.5

PG&E opposes summary disposition because it claims that the complainants' argument that the 3.66 mills/kWh rate adjustment fixed the relief to which PG&E was entitled was raised for the first time in the complainants' answers to PG&E's motions for summary disposition. Thus, PG&E believes that there is clearly a factual dispute concerning the intent in the Temporary Rate Implementation Procedure, and that fairness requires that PG&E be allowed to present evidence supporting its

* PG&E expressly takes no exception to the Commission's determinations that the true-up amounts should have been filed with the Commission, that the dispute and arbitration provisions do not preclude the complainants from seeking relief from the Commission, and that the dispute is within the Commission's exclusive jurisdiction.

5 PG&E adds that the Temporary Rate Implementation Procedure did not change the parties' obli

claim that the parties agreed that the 3.66 mills/kWh rate was subject to true-up.

PG&E claims that it demonstrated in its earlier pleadings that the California Commission's initial and interim decisions provided the basis for it to collect in excess of the temporary 3.66 mills/kWh. PG&E also reiterates that the 9.96 mills/kWh rate was agreed to by virtually all of PG&E's other wholesale customers.

III. Discussion

PG&E's request for rehearing again fails to show that there is either a rate on file which would allow PG&E to recalculate or an agreement among the parties pursuant to which PG&E alone may recalculate the proportionate wholesale rate adjustment that would correspond to the rates authorized by the California Commission. The additional extrinsic evidence that PG&E provides in the form of a negotiator's affidavit does no more than reiterate PG&E's arguments. Without actual rates on file or agreements among the parties that PG&E is entitled to a 9.96 mills/kWh rate for Diablo Canyon expenses, PG&E's demand constitutes a retroactive rate in violation of section 205.

As explained in the December 21, 1990 order, the Interim Agreement provided certain rate mechanisms under which the complainants' wholesale rates would change to reflect PG&E's Diablo Canyon retail revenue requirements authorized by the California Commission. Under these rate mechanisms, the complainants would pay a temporary wholesale rate based on and proportionate to interim retail rates authorized by the California Commission. The temporary wholesale rates would be subject to true-up if the California Commission issued a final order authorizing a retroactive adjustment to the interim retail rates.? The Temporary Rate Implementation Procedure implemented these rate mechanisms, and provided that the complainants owed 3.66 mills/kWh for PG&E's Diablo Canyon interim recovery, based on the California Commission's interim decisions, and that upon issuance of the final California Commission decision, the complainants' share of PG&E's revenue requirement for Diablo Canyon would be computed according to the Interim Agreement.8 The final California Commission decision pro

vided that the interim retail rate for Diablo Canyon would be considered final and that PG&E was not entitled to collect any additional amounts for past service beyond the interim retail rate already collected. Therefore, PG&E's filed wholesale rates resulted in a zero adjustment to the temporary wholesale rates because the triggering event to a rate adjustment, i.e., the California Commission's adjustment to the interim retail rates, did not occur, 10

PG&E argues that the complainants' interpretation that PG&E is entitled to only 3.66 mills/kWh would nullify sections I.4 and I.5 of the Temporary Rate Implementation Procedure. To the contrary, this interpretation is entirely consistent with the relevant agreements and the final California Commission decision.

Section 1.4 of the Temporary Rate Adjustment Procedure provides that:

These rates are developed solely for the purpose of providing PG&E temporary rate relief for Diablo from [San Francisco, et al.] and does [sic] not in any way, shape, or form change the obligation of either Party to the other under the [Interim] Agreement.

The complainants do not quarrel with this provision or the intent that the interim 3.66 mills/ kWh rate set in the Temporary Rate Implementation Procedure was subject to true-up,

Section 1.5, in turn, provides that:

Upon issuance by the [California Commission] of a final Diablo Canyon ratemaking and prudency decision, [San Francisco's, et al.] share of PG&E's revenue requirement for Diablo Canyon shall be computed in accordance with the . . . [Interim] agree

ment....

Again, the complainants agree that any trueup of the interim wholesale rate would be subsequent to the final California Commission decision, and that this true-up would be made consistent with the Interim Agreement.

The Temporary Rate Implementation Procedure also tracked precisely the language in paragraph 3 of the Interim Agreement that reflected the parties' agreement:

.. to implement consistent and concurrent modifications to Rate Schedule FPC No. 53 to preserve the intention of the parties to allow recovery of revenue requirement

9 Id. at p. 61,919 n.47.

10 Stated another way, the true-up resulting from the final California Commission decision yielded a zero change in revenue.

11 See 53 FERC at p. 61,919 n.47.

12 The fact that other PG&E wholesale customers paid a 9.96 mills/kWh rate is irrelevant to the dis

changes which occur in the [California Commission] jurisdiction to be proportionately reflected in the rate levels of Rate Schedule FPC No. 53.

On the other hand, PG&E's interpretation of the parties' agreements would nullify the paragraph 3 provision that the wholesale rates charged to the complainants would change in proportion to any increase or decrease to PG&E's retail revenue requirement as authorized by the California Commission in its final decision on Diablo Canyon. PG&E would simply ignore the unequivocal language of the California Commission that PG&E is not entitled to any more than the interim relief already received.1 11 PG&E fails to explain why the Commission should ignore the clear agreement of the parties that the final California Commission decision shall govern their relationship regarding Diablo Canyon.12

PG&E contends that the parties had an undisclosed and, apparently, unwritten agreement to initiate a temporary rate that was not consistent with or proportionate to the interim retail rate adjustment authorized by the California Commission's interim decisions, and that the temporary rate would be subject to true-up based on PG&E's interpretation of the California Commission's interim orders. PG&E requests the opportunity to prove its case on the legal theory that, if the Commission accepts the existence of the side agreement among the parties, PG&E could collect the amount claimed.

As discussed above and in the order, PG&E's allegation that the parties reached an undisclosed agreement is inconsistent with the contemporaneously executed Temporary Rate Adjustment Procedure, and the Interim Agreement. If PG&E reached such an agreement with its customers, PG&E was obligated to file the agreement with the Commission pursuant to section 205 of the FPA, before rates reflecting the alleged agreement became effective. PG&E did not do so. Instead, PG&E filed the Interim Agreement and Temporary Rate Implementation Procedure, which became filed rates accepted by the Commission. Thus, PG&E is barred from its claim under the filed rate doctrine.

Moreover, PG&E has not sufficiently supported its claim that a separate agreement exists. While the affidavit repeats PG&E's

pute with these three customers. The rates for the other customers were considered in separate proceedings with different issues. The relationship between PG&E and the complainants is the subject of longterm negotiations and agreements (most notably here, the Interim Agreement and Temporary Rate Imple. mentation Procedure) that are unique to these parties and to this proceeding.