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On  preliminary review of the Draft Proposal,  I wonder whether, if adopted by the Chargeback Complainants and the Participants Committee, it should be submitted to the Commission in the Chargeback Docket, not in Judge Birchman's proceeding under the July 25 Order.  That order limits Judge Birchman to making findings of fact and certifying the record on "(1) the mitigated price in each hour of the refund period; (2) the amount of refunds owed by each supplier according to the prescribed methodology; and (3) the amount currently owed to each supplier (with separate quantities due from each entity by the ISO, the investor owned utilities, and the State of California." (Mimeo at 42).  If the settlement were submitted in the Chargeback docket, the Commission could refer it to Birchman with appropriate instructions as to how he should treat it when he certifies the record and his findings.  Or FERC could hold the settlement until after Birchman's report.

This brings up timing questions.  The July 25 Order directed the ALJ to certify the record and findings 45 days after receiving the CAISO's hour-by-hour reconstruction of mitigated prices between October 2, 2000 and June 20 2001.  Under Judge Birchman's Order of August 14 establishing a trial schedule (attached), final ISO data won't be submitted until September 17, which pushes the certification and finding date to November 2.   We need to think about how the schedule shown in the attached order impacts the timing and method of bringing the settlement before FERC, assuming that the proposal's  wording and substance are accepted by all Chargeback Complainants and the Official Committee.

Howard E. Shapiro
(202) 298-1884
hes@vnf.com

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