83 FR 61338 - Implementation of Amended Section 203(a)(1)(B) of the Federal Power Act
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission Federal Register Volume 83, Issue 230 (November 29, 2018)
Federal Energy Regulatory Commission
Federal Register Volume 83, Issue 230 (November 29, 2018)
| Page Range | 61338-61342 | |
| FR Document | 2018-25369 |
[Federal Register Volume 83, Number 230 (Thursday, November 29, 2018)] [Proposed Rules] [Pages 61338-61342] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-25369] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 33 [Docket No. RM19-4-000] Implementation of Amended Section 203(a)(1)(B) of the Federal Power Act AGENCY: Federal Energy Regulatory Commission, Department of Energy. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: Pursuant to ``An Act to amend section 203 of the Federal Power Act'' (Act), the Federal Energy Regulatory Commission (Commission) proposes to revise its regulations relating to mergers or consolidations by a public utility. [[Page 61339]] Specifically, the Commission proposes to revise its regulations to establish that a public utility must seek authorization under amended section 203(a)(1)(B) of the Federal Power Act to merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with the facilities of any other person, or any part thereof, that are subject to the jurisdiction of the Commission and have a value in excess of $10 million, by any means whatsoever. In addition, as required by the Act, the Commission proposes to establish a notification requirement for mergers or consolidations by a public utility if the facilities to be acquired have a value in excess of $1 million and such public utility is not required to secure Commission authorization under amended section 203(a)(1)(B). DATES: Comments are due December 31, 2018. ADDRESSES: Comments, identified by docket number, may be filed electronically at http://www.ferc.gov in acceptable native applications and print-to-PDF, but not in scanned or picture format. For those unable to file electronically, comments may be filed by mail or hand- delivery to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. The Comment Procedures Section of this document contains more detailed filing procedures. FOR FURTHER INFORMATION CONTACT: Eric Olesh (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6524. Regine Baus (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8757. SUPPLEMENTARY INFORMATION: I. Background 1. On September 28, 2018, ``An Act to amend section 203 of the Federal Power Act'' (Act) was signed into law. Section 1 of the Act amended section 203(a)(1)(B) to provide that no public utility shall, without first having secured an order of the Commission authorizing it to do so, merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with the facilities of any other person, or any part thereof, that are subject to the jurisdiction of the Commission and have a value in excess of $10 million, by any means whatsoever. Section 3 of the Act provides that the amendment to section 203(a)(1)(B) shall take effect 180 days after the date of enactment of the Act. The primary effect of this amendment is to establish a $10 million threshold on transactions that will be subject to the Commission's review and authorization under section 203(a)(1)(B). 2. In section 2 of the Act, Congress amended section 203(a) to add section (a)(7) to require notification for certain transactions. Section 203(a)(7) provides that, not later than 180 days after the date of the enactment of section 203(a)(7), the Commission shall promulgate a rule requiring any public utility that is seeking to merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with those of any other person, to notify the Commission of such transactions not later than 30 days after the date on which the transaction is consummated if: (1) The facilities, or any part thereof, to be acquired are of a value in excess of $1 million; and (2) such public utility is not required to secure a Commission order under amended section 203(a)(1)(B). The Commission's proposed implementation of the above changes is discussed below. II. Discussion 3. The Commission proposes two changes to part 33 of its regulations to bring them into conformance with the Act. First, the Commission proposes to revise Sec. 33.1(a)(1)(ii) to provide that part 33 will apply to any public utility seeking authorization under section 203 to merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with the facilities of any other person, or any part thereof, that are subject to the jurisdiction of the Commission and have a value in excess of $10 million, by any means whatsoever.\1\ --------------------------------------------------------------------------- \1\ Public utilities required to maintain their books of account in accordance with the Commission's Uniform System of Accounts under 18 CFR part 101 must continue to file with the Commission proposed journal entries for the purchase or sale of electric plant, consistent with the instructions to Account 102, Electric Plant Purchased and Sold. The dollar threshold established in this proposed rulemaking does not apply to this accounting filing requirement. --------------------------------------------------------------------------- 4. Second, the Commission proposes to require public utilities whose transactions are subject to section 203(a)(7) to file notification of such transactions with the Commission. Specifically, the Commission proposes that any public utility that is seeking to merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with those of any other person must notify the Commission of such transaction not later than 30 days after the date on which the transaction is consummated if: (1) The facilities, or any part thereof, to be acquired are of a value in excess of $1 million; and (2) such public utility is not required to secure an order of the Commission under section 203(a)(1)(B). 5. In this notification filing, the Commission proposes that public utilities subject to section 203(a)(7) file the following information: (1) The exact name of the public utility and its principal business address; and (2) a narrative description of the transaction, including the identity of all parties involved in the transaction and all jurisdictional facilities associated with or affected by the transaction, the location of such jurisdictional facilities involved in the transaction, the date on which the transaction was consummated, the consideration for the transaction, and the effect of the transaction on the ownership and control of such jurisdictional facilities. 6. New section 203(a)(7)(B) requires that, ``[i]n establishing any notification requirement under subparagraph (A), the Commission shall, to the maximum extent practicable, minimize the paperwork burden resulting from the collection of information.'' We believe that the information to be included in the proposed notification filing represents a substantial reduction in paperwork from the full filing requirements under part 33 for applications for transactions that are required to secure an order from the Commission under amended section 203(a)(1)(B). Public utilities subject to section 203(a)(7) were previously required to submit complete applications with all relevant information required by part 33. The information to be included in the proposed notification filing represents only a small fraction of the information contemplated in part 33. 7. Further, the information the Commission proposes to require in the notification filing will allow the Commission to monitor the merger or consolidation of facilities subject to its jurisdiction. Although the transactions contemplated pursuant to section 203(a)(7) are unlikely to present concerns under the Commission's public interest analysis and public utilities entering into these transactions are not required to secure an order of the Commission under amended section 203(a)(1)(B), the information the Commission proposes to require in the notification filing will allow the [[Page 61340]] Commission to collect information about the transaction should a question arise related to the underlying facilities and the Commission's oversight under the Federal Power Act. 8. We propose that the notification filing should be filed in the first docket for section 203 filings of the fiscal year (FY). For example, all notification filings made in FY2019 would be filed in Docket No. EC19-1-000; all notification filings for FY2020 would be filed in Docket No. EC20-1-000, etc. We believe that this approach would allow the Commission to track the transactions that fall under section 203(a)(7). 9. Lastly, the Commission clarifies that, except for mergers or consolidations that are valued at $10 million or less, the Commission will not change its interpretation of the transactions that are subject to the jurisdiction of the Commission under the ``merge or consolidate'' clause of section 203(a)(1)(B). That is, the Commission interprets the amendment by Congress to section 203(a)(1)(B) as establishing a $10 million threshold, but not removing the Commission's jurisdiction to review transactions with a higher value that involve a public utility's acquisition of facilities from non-public utilities \2\ if those facilities will be subject to the Commission's jurisdiction after the transaction is consummated.\3\ --------------------------------------------------------------------------- \2\ Non-public utilities refers to entities described in section 201(f) of the Federal Power Act (FPA). 16 U.S.C. 824(f). \3\ See Duke Power Co. v. FPC, 401 F.2d 930, 941 (DC Cir. 1968) (``We have no doubt that any acquisition from [a non-public utility] by a public utility of what would normally be a jurisdictional facility, such as a transmission line conducting interstate energy, would fall within the purview of the clause under consideration.''). --------------------------------------------------------------------------- III. Information Collection Statement 10. The collection of information contained in this Notice of Proposed Rulemaking is subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act (PRA).\4\ The PRA requires each federal agency to seek and obtain OMB approval before undertaking a collection of information directed to 10 or more persons or contained in a rule of general applicability. OMB's regulations \5\ require approval of certain information collection requirements imposed by agency rules. Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of an agency rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number. The Commission solicits comments on the Commission's need for the specific information it proposes to collect, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. --------------------------------------------------------------------------- \4\ 44 U.S.C. 3507(d). \5\ 5 CFR 1320. --------------------------------------------------------------------------- 11. The revisions to the Commission's regulations proposed in this NOPR would bring the regulations in conformance with the amendments to section 203 enacted by Congress. The first revision would implement Congress' amendment to section 203(a)(1)(B), which provides that a public utility must seek authorization to merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with the facilities of any other person, or any part thereof, that are subject to the jurisdiction of the Commission and have a value in excess of $10 million, by any means whatsoever. In addition, the Commission proposes to add Sec. 33.12 to its regulations to implement the directive in new section 203(a)(7) that the Commission require a notification filing for mergers or consolidations by a public utility if the facilities to be acquired have a value in excess of $1 million and such public utility is not required to secure Commission authorization under amended section 203(a)(1)(B). The Commission anticipates that the revisions, once effective, would reduce regulatory burdens. The Commission will submit the proposed reporting requirements to OMB for its review and approval under section 3507(d) of the PRA.\6\ --------------------------------------------------------------------------- \6\ 44 U.S.C. 3507(d). --------------------------------------------------------------------------- 12. While the Commission expects that the regulatory revisions proposed herein will reduce the burdens on affected entities, the Commission nonetheless solicits public comments regarding the accuracy of the burden and cost estimates below. 13. Internal review: The Commission has reviewed the proposed changes and has determined that the changes are necessary. 14. Burden Estimate \7\: The estimated burden and cost for the requirements contained in this NOPR follow. --------------------------------------------------------------------------- \7\ ``Burden'' is the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. For further explanation of what is included in the information collection burden, refer to 5 CFR 1320.3. FERC-519, as Modified by NOPR in Docket No. RM19-4-000 -------------------------------------------------------------------------------------------------------------------------------------------------------- Number and type Number of Total number of Requirements of respondents responses per responses (1) * Average burden hours and Total burden hours and total (1) respondent (2) (2) = (3) cost per response (4) cost (3) * (4) -------------------------------------------------------------------------------------------------------------------------------------------------------- FERC-519 (FPA Section 203 Filings) \8\... 26 1 26 1 hr.;...................... 26 hrs.; $2,054.00 $79.00...................... -------------------------------------------------------------------------------------------------------------------------------------------------------- Title: FERC-519, Application under Federal Power Act Section 203. --------------------------------------------------------------------------- \8\ Commission staff estimates that approximately 26 section 203 filings will change from full section 203 filings to the notification filing described above, and will take one burden hour to complete. The number of respondents and responses is based on Commission staff's estimate that 13 percent of the approximately 200 section 203 filings received will be affected by the NOPR, which represents a significant reduction in burden hours. --------------------------------------------------------------------------- OMB Control No.: 1902-0082. Action: Proposed amendment to 18 CFR part 33. Respondents: Public utilities subject to Federal Power Act. Abstract: Pursuant to ``An Act to amend section 203 of the Federal Power Act'' (Act), the Commission proposes to revise part 33 of its regulations to establish that mergers or consolidations by a public utility of facilities subject to the jurisdiction of the Commission that have a value in excess of $10 million are subject to Commission authorization. In addition, the Commission proposes to [[Page 61341]] add Sec. 33.12 to its regulations to establish a notification requirement for mergers or consolidations by a public utility if the facilities to be acquired have a value in excess of $1 million and such public utility is not required to secure Commission authorization under amended section 203(a)(1)(B). Overview of the Data Collection: The FERC-519, ``Application under Federal Power Act section 203,'' is necessary to enable the Commission to carry out its responsibilities in implementing the statutory provisions of section 203. Section 203 requires a public utility to seek Commission authorization of transactions in which a public utility disposes of jurisdictional facilities, merges such facilities with the facilities owned by another person, or acquires the securities of another public utility. The Commission must authorize these transactions if it finds that they will be consistent with the public interest. 15. One of the Commission's overarching goals is to promote competition in wholesale power markets, and it has determined that effective competition, as opposed to traditional forms of price regulation, can best protect ratepayer interests. By entering into a certain transaction, a public utility may gain an increased incentive and ability to exercise market power that can be to the detriment of effective competition and customers. As a result, the Commission must review all jurisdictional dispositions, mergers, and acquisitions to evaluate that transaction's effect on competition. The Commission also evaluates whether such transactions have an effect on rates and regulation and whether they result in cross-subsidization. The Commission implements the filing requirements associated with this review in the Code of Federal Regulations (CFR) under 18 CFR part 33. 16. This NOPR is limited to implementing amended FPA section 203(a)(1)(B) and proposing a notification requirement for certain other transactions, both of which together represent a reduction in the filing requirements for public utilities under section 203. The Commission proposes this rule by mandate of Congress. 17. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director] Email: DataClearance@ferc.gov, Phone: (202) 502-8663; fax: (202) 273-0873. 18. Comments concerning the collection of information and the associated burden estimate(s) may also be sent to: Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. Due to security concerns, comments should be sent electronically to the following email address: oira_submission@omb.eop.gov. Please refer to FERC-520, OMB Control No. 1902-0083 in your submission. IV. Environmental Analysis 19. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.\9\ We conclude that neither an Environmental Assessment nor an Environmental Impact Statement is required for this NOPR under section 380.4(a) of the Commission's regulations, which provides a categorical exemption for ``approval of actions under section[] . . . 203 . . . of the Federal Power Act relating to . . . acquisition or disposition of property. . . .'' \10\ --------------------------------------------------------------------------- \9\ Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, FERC Stats. & Regs. ] 30,783 (1987). \10\ 18 CFR 380.4(a)(16). --------------------------------------------------------------------------- V. Regulatory Flexibility Act Certification 20. The Regulatory Flexibility Act of 1980 (RFA) \11\ generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small entity. These standards are provided in the SBA regulations at 13 CFR 121.201.\12\ The RFA does not mandate any particular outcome in a rulemaking. It only requires consideration of alternatives that are less burdensome to small entities and an agency explanation of why alternatives were rejected. --------------------------------------------------------------------------- \11\ 5 U.S.C. 601-612. \12\ 13 CFR 121.201. See also U.S. Small Business Administration, Table of Small Business Size Standards Matched to North American Industry Classification System Codes (effective Feb. 26, 2016), https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf. --------------------------------------------------------------------------- 21. The SBA size standards for electric utilities is based on the number of employees, including affiliates. Under SBA's standards, some transmission owners will fall under the following category and associated size threshold: electric bulk power transmission and control, at 500 employees.\13\ --------------------------------------------------------------------------- \13\ 13 CFR 121.201, Sector 22 (Utilities), NAICS code 221121 (Electric Bulk Power Transmission and Control). --------------------------------------------------------------------------- 22. The Commission estimates that 26 respondents could file notification filings over the course of a year, with an estimated burden of 1 hour per response, at an estimated cost of $79.00 per respondent. The Commission believes that none of the filers will be small. Therefore, the Commission certifies that this proposed rule will not have a significant economic impact on small entities. VI. Comment Procedures 23. The Commission invites interested persons to submit comments on the matters and issues proposed in this document to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due December 31, 2018. Comments must refer to Docket No. RM19-4-000, and must include the commenter's name, the organization they represent, if applicable, and their address in their comments. 24. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing. 25. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. 26. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. VII. Document Availability 27. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. [[Page 61342]] Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426. 28. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 29. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502- 8371, TTY (202)502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov. List of Subjects in 18 CFR Part 33 Electric utilities, Reporting and recordkeeping requirements, Securities. By direction of the Commission. Commissioner McIntyre is not voting on this order. Issued: November 15, 2018. Nathaniel J. Davis, Sr., Deputy Secretary. In consideration of the foregoing, the Commission proposes to amend part 33, chapter I, title 18, Code of Federal Regulations, as follows. PART 33--APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203 0 1. The authority citation for part 33 continues to read as follows: Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 41 U.S.C. 7101-7352 0 2. Amend Sec. 33.1 by revising paragraph (a)(1)(ii) to read as follows: Sec. 33.1 Applicability, definitions, and blanket authorizations. (a) * * * (1) * * * (ii) Merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with the facilities of any other person, or any part thereof, that are subject to the jurisdiction of the Commission and have a value in excess of $10 million, by any means whatsoever; * * * * * 0 3. Add Sec. 33.12 to read as follows: Sec. 33.12 Notification requirement for certain transactions. (a) Any public utility that is seeking to merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with those of any other person, shall notify the Commission of such transaction not later than 30 days after the date on which the transaction is consummated if: (1) The facilities, or any part thereof, to be acquired are of a value in excess of $1 million; and (2) Such public utility is not required to secure an order of the Commission under section 203(a)(1)(B) of the Federal Power Act. (b) Such notification shall consist of the following information: (1) The exact name of the public utility and its principal business address; and (2) A narrative description of the transaction, including the identity of all parties involved in the transaction and all jurisdictional facilities associated with or affected by the transaction, the location of such jurisdictional facilities involved in the transaction, the date on which the transaction was consummated, the consideration for the transaction, and the effect of the transaction on the ownership and control of such jurisdictional facilities. [FR Doc. 2018-25369 Filed 11-28-18; 8:45 am] BILLING CODE 6717-01-P
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Specifically, the Commission proposes by any means whatsoever. Section 3 of jurisdiction of the Commission, or any
to revise its regulations to establish that the Act provides that the amendment to part thereof, with those of any other
a public utility must seek authorization section 203(a)(1)(B) shall take effect 180 person must notify the Commission of
under amended section 203(a)(1)(B) of days after the date of enactment of the such transaction not later than 30 days
the Federal Power Act to merge or Act. The primary effect of this after the date on which the transaction
consolidate, directly or indirectly, its amendment is to establish a $10 million is consummated if: (1) The facilities, or
facilities subject to the jurisdiction of threshold on transactions that will be any part thereof, to be acquired are of
the Commission, or any part thereof, subject to the Commission’s review and a value in excess of $1 million; and (2)
with the facilities of any other person, authorization under section 203(a)(1)(B). such public utility is not required to
or any part thereof, that are subject to 2. In section 2 of the Act, Congress secure an order of the Commission
the jurisdiction of the Commission and amended section 203(a) to add section under section 203(a)(1)(B).
have a value in excess of $10 million, (a)(7) to require notification for certain 5. In this notification filing, the
by any means whatsoever. In addition, transactions. Section 203(a)(7) provides Commission proposes that public
as required by the Act, the Commission that, not later than 180 days after the utilities subject to section 203(a)(7) file
proposes to establish a notification date of the enactment of section the following information: (1) The exact
requirement for mergers or 203(a)(7), the Commission shall name of the public utility and its
consolidations by a public utility if the promulgate a rule requiring any public principal business address; and (2) a
facilities to be acquired have a value in utility that is seeking to merge or narrative description of the transaction,
excess of $1 million and such public consolidate, directly or indirectly, its including the identity of all parties
utility is not required to secure facilities subject to the jurisdiction of involved in the transaction and all
Commission authorization under the Commission, or any part thereof, jurisdictional facilities associated with
amended section 203(a)(1)(B). with those of any other person, to notify or affected by the transaction, the
DATES: Comments are due December 31,
the Commission of such transactions not location of such jurisdictional facilities
2018. later than 30 days after the date on involved in the transaction, the date on
which the transaction is consummated which the transaction was
ADDRESSES: Comments, identified by
if: (1) The facilities, or any part thereof, consummated, the consideration for the
docket number, may be filed to be acquired are of a value in excess transaction, and the effect of the
electronically at http://www.ferc.gov in of $1 million; and (2) such public utility transaction on the ownership and
acceptable native applications and is not required to secure a Commission control of such jurisdictional facilities.
print-to-PDF, but not in scanned or order under amended section 6. New section 203(a)(7)(B) requires
picture format. For those unable to file 203(a)(1)(B). The Commission’s that, ‘‘[i]n establishing any notification
electronically, comments may be filed proposed implementation of the above requirement under subparagraph (A),
by mail or hand-delivery to: Federal changes is discussed below. the Commission shall, to the maximum
Energy Regulatory Commission, extent practicable, minimize the
Secretary of the Commission, 888 First II. Discussion paperwork burden resulting from the
Street NE, Washington, DC 20426. The 3. The Commission proposes two collection of information.’’ We believe
Comment Procedures Section of this changes to part 33 of its regulations to that the information to be included in
document contains more detailed filing bring them into conformance with the the proposed notification filing
procedures. Act. First, the Commission proposes to represents a substantial reduction in
FOR FURTHER INFORMATION CONTACT: revise § 33.1(a)(1)(ii) to provide that part paperwork from the full filing
Eric Olesh (Technical Information), 33 will apply to any public utility requirements under part 33 for
Office of Energy Market Regulation, seeking authorization under section 203 applications for transactions that are
Federal Energy Regulatory to merge or consolidate, directly or required to secure an order from the
Commission, 888 First Street NE, indirectly, its facilities subject to the Commission under amended section
Washington, DC 20426, (202) 502– jurisdiction of the Commission, or any 203(a)(1)(B). Public utilities subject to
6524. part thereof, with the facilities of any section 203(a)(7) were previously
Regine Baus (Legal Information), Office other person, or any part thereof, that required to submit complete
of the General Counsel, Federal are subject to the jurisdiction of the applications with all relevant
Energy Regulatory Commission, 888 Commission and have a value in excess information required by part 33. The
First Street NE, Washington, DC of $10 million, by any means information to be included in the
20426, (202) 502–8757. whatsoever.1 proposed notification filing represents
SUPPLEMENTARY INFORMATION: 4. Second, the Commission proposes only a small fraction of the information
to require public utilities whose contemplated in part 33.
I. Background transactions are subject to section 7. Further, the information the
1. On September 28, 2018, ‘‘An Act to 203(a)(7) to file notification of such Commission proposes to require in the
amend section 203 of the Federal Power transactions with the Commission. notification filing will allow the
Act’’ (Act) was signed into law. Section Specifically, the Commission proposes Commission to monitor the merger or
1 of the Act amended section that any public utility that is seeking to consolidation of facilities subject to its
203(a)(1)(B) to provide that no public merge or consolidate, directly or jurisdiction. Although the transactions
utility shall, without first having indirectly, its facilities subject to the contemplated pursuant to section
secured an order of the Commission 203(a)(7) are unlikely to present
khammond on DSK30JT082PROD with PROPOSALS
1 Public utilities required to maintain their books
authorizing it to do so, merge or concerns under the Commission’s
of account in accordance with the Commission’s
consolidate, directly or indirectly, its Uniform System of Accounts under 18 CFR part 101
public interest analysis and public
facilities subject to the jurisdiction of must continue to file with the Commission utilities entering into these transactions
the Commission, or any part thereof, proposed journal entries for the purchase or sale of are not required to secure an order of
with the facilities of any other person, electric plant, consistent with the instructions to the Commission under amended section
Account 102, Electric Plant Purchased and Sold.
or any part thereof, that are subject to The dollar threshold established in this proposed
203(a)(1)(B), the information the
the jurisdiction of the Commission and rulemaking does not apply to this accounting filing Commission proposes to require in the
have a value in excess of $10 million, requirement. notification filing will allow the
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![61340 Federal Register / Vol. 83, No. 230 / Thursday, November 29, 2018 / Proposed Rules
Commission to collect information Rulemaking is subject to review by the public utility must seek authorization to
about the transaction should a question Office of Management and Budget merge or consolidate, directly or
arise related to the underlying facilities (OMB) under section 3507(d) of the indirectly, its facilities subject to the
and the Commission’s oversight under Paperwork Reduction Act (PRA).4 The jurisdiction of the Commission, or any
the Federal Power Act. PRA requires each federal agency to part thereof, with the facilities of any
8. We propose that the notification seek and obtain OMB approval before other person, or any part thereof, that
filing should be filed in the first docket undertaking a collection of information are subject to the jurisdiction of the
for section 203 filings of the fiscal year directed to 10 or more persons or Commission and have a value in excess
(FY). For example, all notification contained in a rule of general of $10 million, by any means
filings made in FY2019 would be filed applicability. OMB’s regulations 5 whatsoever. In addition, the
in Docket No. EC19–1–000; all require approval of certain information Commission proposes to add § 33.12 to
notification filings for FY2020 would be collection requirements imposed by its regulations to implement the
filed in Docket No. EC20–1–000, etc. We agency rules. Upon approval of a directive in new section 203(a)(7) that
believe that this approach would allow collection of information, OMB will the Commission require a notification
the Commission to track the assign an OMB control number and an filing for mergers or consolidations by a
transactions that fall under section expiration date. Respondents subject to public utility if the facilities to be
203(a)(7). the filing requirements of an agency rule acquired have a value in excess of $1
9. Lastly, the Commission clarifies will not be penalized for failing to million and such public utility is not
that, except for mergers or respond to the collection of information required to secure Commission
consolidations that are valued at $10 unless the collection of information authorization under amended section
million or less, the Commission will not displays a valid OMB control number. 203(a)(1)(B). The Commission
change its interpretation of the The Commission solicits comments on anticipates that the revisions, once
transactions that are subject to the the Commission’s need for the specific effective, would reduce regulatory
jurisdiction of the Commission under information it proposes to collect, burdens. The Commission will submit
the ‘‘merge or consolidate’’ clause of whether the information will have the proposed reporting requirements to
section 203(a)(1)(B). That is, the practical utility, the accuracy of the OMB for its review and approval under
Commission interprets the amendment burden estimates, ways to enhance the section 3507(d) of the PRA.6
by Congress to section 203(a)(1)(B) as quality, utility, and clarity of the 12. While the Commission expects
establishing a $10 million threshold, but information to be collected or retained, that the regulatory revisions proposed
not removing the Commission’s and any suggested methods for herein will reduce the burdens on
jurisdiction to review transactions with minimizing respondents’ burden, affected entities, the Commission
a higher value that involve a public including the use of automated nonetheless solicits public comments
utility’s acquisition of facilities from information techniques. regarding the accuracy of the burden
non-public utilities 2 if those facilities 11. The revisions to the Commission’s and cost estimates below.
will be subject to the Commission’s regulations proposed in this NOPR 13. Internal review: The Commission
jurisdiction after the transaction is would bring the regulations in has reviewed the proposed changes and
consummated.3 conformance with the amendments to has determined that the changes are
section 203 enacted by Congress. The necessary.
III. Information Collection Statement first revision would implement 14. Burden Estimate 7: The estimated
10. The collection of information Congress’ amendment to section burden and cost for the requirements
contained in this Notice of Proposed 203(a)(1)(B), which provides that a contained in this NOPR follow.
FERC–519, AS MODIFIED BY NOPR IN DOCKET NO. RM19–4–000
Average
Number and Number of Total burden
type of responses per Total number burden hours hours and
Requirements of responses and cost per
respondents respondent total cost
(1) * (2) = (3) response
(1) (2) (3) * (4)
(4)
FERC–519 (FPA Section 203 Filings) 8 ................................... 26 1 26 1 hr.; ............ 26 hrs.;
$79.00 ......... $2,054.00
Title: FERC–519, Application under Respondents: Public utilities subject establish that mergers or consolidations
Federal Power Act Section 203. to Federal Power Act. by a public utility of facilities subject to
OMB Control No.: 1902–0082. Abstract: Pursuant to ‘‘An Act to the jurisdiction of the Commission that
amend section 203 of the Federal Power have a value in excess of $10 million are
Action: Proposed amendment to 18
Act’’ (Act), the Commission proposes to subject to Commission authorization. In
CFR part 33.
revise part 33 of its regulations to addition, the Commission proposes to
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2 Non-public utilities refers to entities described 4 44 U.S.C. 3507(d). 8 Commission staff estimates that approximately
in section 201(f) of the Federal Power Act (FPA). 55 CFR 1320. 26 section 203 filings will change from full section
16 U.S.C. 824(f). 6 44 U.S.C. 3507(d). 203 filings to the notification filing described above,
3 See Duke Power Co. v. FPC, 401 F.2d 930, 941
7 ‘‘Burden’’ is the total time, effort, or financial and will take one burden hour to complete. The
(DC Cir. 1968) (‘‘We have no doubt that any number of respondents and responses is based on
acquisition from [a non-public utility] by a public resources expended by persons to generate,
maintain, retain, or disclose or provide information Commission staff’s estimate that 13 percent of the
utility of what would normally be a jurisdictional
facility, such as a transmission line conducting to or for a Federal agency. For further explanation approximately 200 section 203 filings received will
interstate energy, would fall within the purview of of what is included in the information collection be affected by the NOPR, which represents a
the clause under consideration.’’). burden, refer to 5 CFR 1320.3. significant reduction in burden hours.
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![Federal Register / Vol. 83, No. 230 / Thursday, November 29, 2018 / Proposed Rules 61341
add § 33.12 to its regulations to establish be sent to: Office of Information and transmission and control, at 500
a notification requirement for mergers or Regulatory Affairs, Office of employees.13
consolidations by a public utility if the Management and Budget, 725 17th 22. The Commission estimates that 26
facilities to be acquired have a value in Street NW, Washington, DC 20503 respondents could file notification
excess of $1 million and such public [Attention: Desk Officer for the Federal filings over the course of a year, with an
utility is not required to secure Energy Regulatory Commission]. Due to estimated burden of 1 hour per
Commission authorization under security concerns, comments should be response, at an estimated cost of $79.00
amended section 203(a)(1)(B). sent electronically to the following per respondent. The Commission
Overview of the Data Collection: The email address: oira_submission@ believes that none of the filers will be
FERC–519, ‘‘Application under Federal omb.eop.gov. Please refer to FERC–520, small. Therefore, the Commission
Power Act section 203,’’ is necessary to OMB Control No. 1902–0083 in your certifies that this proposed rule will not
enable the Commission to carry out its submission. have a significant economic impact on
responsibilities in implementing the small entities.
statutory provisions of section 203. IV. Environmental Analysis
Section 203 requires a public utility to 19. The Commission is required to VI. Comment Procedures
seek Commission authorization of prepare an Environmental Assessment 23. The Commission invites interested
transactions in which a public utility or an Environmental Impact Statement persons to submit comments on the
disposes of jurisdictional facilities, for any action that may have a matters and issues proposed in this
merges such facilities with the facilities significant adverse effect on the human document to be adopted, including any
owned by another person, or acquires environment.9 We conclude that neither related matters or alternative proposals
the securities of another public utility. an Environmental Assessment nor an that commenters may wish to discuss.
The Commission must authorize these Environmental Impact Statement is Comments are due December 31, 2018.
transactions if it finds that they will be required for this NOPR under section Comments must refer to Docket No.
consistent with the public interest. 380.4(a) of the Commission’s RM19–4–000, and must include the
15. One of the Commission’s regulations, which provides a commenter’s name, the organization
overarching goals is to promote categorical exemption for ‘‘approval of they represent, if applicable, and their
competition in wholesale power actions under section[] . . . 203 . . . of address in their comments.
markets, and it has determined that the Federal Power Act relating to . . . 24. The Commission encourages
effective competition, as opposed to acquisition or disposition of property. comments to be filed electronically via
traditional forms of price regulation, can . . .’’ 10 the eFiling link on the Commission’s
best protect ratepayer interests. By website at http://www.ferc.gov. The
entering into a certain transaction, a V. Regulatory Flexibility Act Commission accepts most standard
public utility may gain an increased Certification word processing formats. Documents
incentive and ability to exercise market 20. The Regulatory Flexibility Act of created electronically using word
power that can be to the detriment of 1980 (RFA) 11 generally requires a processing software should be filed in
effective competition and customers. As description and analysis of proposed native applications or print-to-PDF
a result, the Commission must review rules that will have significant format and not in a scanned format.
all jurisdictional dispositions, mergers, economic impact on a substantial Commenters filing electronically do not
and acquisitions to evaluate that number of small entities. The Small need to make a paper filing.
transaction’s effect on competition. The Business Administration’s (SBA) Office 25. Commenters that are not able to
Commission also evaluates whether of Size Standards develops the file comments electronically must send
such transactions have an effect on rates numerical definition of a small entity. an original of their comments to:
and regulation and whether they result These standards are provided in the Federal Energy Regulatory Commission,
in cross-subsidization. The Commission SBA regulations at 13 CFR 121.201.12 Secretary of the Commission, 888 First
implements the filing requirements The RFA does not mandate any Street NE, Washington, DC 20426.
associated with this review in the Code particular outcome in a rulemaking. It 26. All comments will be placed in
of Federal Regulations (CFR) under 18 only requires consideration of the Commission’s public files and may
CFR part 33. alternatives that are less burdensome to be viewed, printed, or downloaded
16. This NOPR is limited to small entities and an agency remotely as described in the Document
implementing amended FPA section explanation of why alternatives were Availability section below. Commenters
203(a)(1)(B) and proposing a notification rejected. on this proposal are not required to
requirement for certain other 21. The SBA size standards for serve copies of their comments on other
transactions, both of which together electric utilities is based on the number commenters.
represent a reduction in the filing of employees, including affiliates.
requirements for public utilities under VII. Document Availability
Under SBA’s standards, some
section 203. The Commission proposes transmission owners will fall under the 27. In addition to publishing the full
this rule by mandate of Congress. following category and associated size text of this document in the Federal
17. Interested persons may obtain Register, the Commission provides all
threshold: electric bulk power
information on the reporting interested persons an opportunity to
requirements by contacting the 9 Regulations Implementing the National view and/or print the contents of this
following: Federal Energy Regulatory
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Environmental Policy Act of 1969, Order No. 486, document via the internet through the
Commission, 888 First Street NE, FERC Stats. & Regs. ¶ 30,783 (1987). Commission’s Home Page (http://
Washington, DC 20426 [Attention: Ellen 10 18 CFR 380.4(a)(16).
www.ferc.gov) and in the Commission’s
Brown, Office of the Executive Director] 11 5 U.S.C. 601–612.
Public Reference Room during normal
Email: DataClearance@ferc.gov, Phone: 12 13 CFR 121.201. See also U.S. Small Business
business hours (8:30 a.m. to 5:00 p.m.
(202) 502–8663; fax: (202) 273–0873. Administration, Table of Small Business Size
Standards Matched to North American Industry
18. Comments concerning the Classification System Codes (effective Feb. 26, 13 13 CFR 121.201, Sector 22 (Utilities), NAICS
collection of information and the 2016), https://www.sba.gov/sites/default/files/files/ code 221121 (Electric Bulk Power Transmission and
associated burden estimate(s) may also Size_Standards_Table.pdf. Control).
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![61342 Federal Register / Vol. 83, No. 230 / Thursday, November 29, 2018 / Proposed Rules
Eastern time) at 888 First Street NE, part thereof, with those of any other DATES: We must receive your comments
Room 2A, Washington, DC 20426. person, shall notify the Commission of on or before January 28, 2019.
28. From the Commission’s Home such transaction not later than 30 days ADDRESSES: Submit your comments
Page on the internet, this information is after the date on which the transaction through the Federal eRulemaking Portal
available on eLibrary. The full text of is consummated if: or via postal mail, commercial delivery,
this document is available on eLibrary (1) The facilities, or any part thereof, or hand delivery. We will not accept
in PDF and Microsoft Word format for to be acquired are of a value in excess comments submitted by fax or by email
viewing, printing, and/or downloading. of $1 million; and or those submitted after the comment
To access this document in eLibrary, (2) Such public utility is not required period. To ensure that we do not receive
type the docket number excluding the to secure an order of the Commission duplicate copies, please submit your
last three digits of this document in the under section 203(a)(1)(B) of the Federal comments only once. In addition, please
docket number field. Power Act. include the Docket ID at the top of your
29. User assistance is available for (b) Such notification shall consist of comments.
eLibrary and the Commission’s website the following information: • Federal eRulemaking Portal: Go to
during normal business hours from the (1) The exact name of the public www.regulations.gov to submit your
Commission’s Online Support at 202– utility and its principal business comments electronically. Information
502–6652 (toll free at 1–866–208–3676) address; and on using Regulations.gov, including
or email at ferconlinesupport@ferc.gov, (2) A narrative description of the instructions for accessing agency
or the Public Reference Room at (202) transaction, including the identity of all documents, submitting comments, and
502–8371, TTY (202)502–8659. Email parties involved in the transaction and viewing the docket, is available on the
the Public Reference Room at all jurisdictional facilities associated site under ‘‘Help.’’
public.referenceroom@ferc.gov. with or affected by the transaction, the • Postal Mail, Commercial Delivery,
location of such jurisdictional facilities or Hand Delivery: The Department
List of Subjects in 18 CFR Part 33
involved in the transaction, the date on strongly encourages commenters to
Electric utilities, Reporting and which the transaction was submit their comments electronically.
recordkeeping requirements, Securities. consummated, the consideration for the However, if you mail or deliver your
By direction of the Commission. transaction, and the effect of the comments about these proposed
Commissioner McIntyre is not voting on this transaction on the ownership and regulations, address them to Patricia
order. control of such jurisdictional facilities. Meyertholen, U.S. Department of
Issued: November 15, 2018. [FR Doc. 2018–25369 Filed 11–28–18; 8:45 am] Education, 400 Maryland Avenue SW,
Nathaniel J. Davis, Sr., BILLING CODE 6717–01–P Room 3E315, Washington, DC 20202.
Deputy Secretary. Privacy Note: The Department’s
In consideration of the foregoing, the policy is to make all comments received
Commission proposes to amend part 33, DEPARTMENT OF EDUCATION from members of the public available for
chapter I, title 18, Code of Federal public viewing in their entirety on the
Regulations, as follows. 34 CFR Part 200 Federal eRulemaking Portal at
www.regulations.gov. Therefore,
RIN 1810–AB49
PART 33—APPLICATIONS UNDER commenters should be careful to
FEDERAL POWER ACT SECTION 203 [Docket ID ED–2018–OESE–0079] include in their comments only
information that they wish to make
■ 1. The authority citation for part 33 Title I—Improving the Academic publicly available.
continues to read as follows: Achievement of the Disadvantaged; FOR FURTHER INFORMATION CONTACT:
Authority: 16 U.S.C. 791a-825r, 2601– Education of Migratory Children Patricia Meyertholen, U.S. Department
2645; 31 U.S.C. 9701; 41 U.S.C. 7101–7352 AGENCY: Office of Elementary and of Education, 400 Maryland Avenue
■ 2. Amend § 33.1 by revising paragraph Secondary Education, Department of SW, Room 3E315, Washington, DC
(a)(1)(ii) to read as follows: Education. 20202. Telephone: (202) 260–1394.
§ 33.1 Applicability, definitions, and ACTION: Notice of proposed rulemaking.
Email: patricia.meyertholen@ed.gov.
blanket authorizations. If you use a telecommunications
SUMMARY: The Department proposes to device for the deaf (TDD) or a text
(a) * * *
(1) * * * modify the current requirements related telephone (TTY), call the Federal Relay
(ii) Merge or consolidate, directly or to the responsibilities of State Service (FRS), toll free, at 1–800–877–
indirectly, its facilities subject to the educational agency (SEA) recipients of 8339.
jurisdiction of the Commission, or any funds under title I, part C, of the SUPPLEMENTARY INFORMATION:
part thereof, with the facilities of any Elementary and Secondary Education Catalog of Federal Domestic
other person, or any part thereof, that Act of 1965, as amended (ESEA), to Assistance (CFDA) Number: 84.011.
are subject to the jurisdiction of the conduct annual prospective re- Invitation to Comment: We invite you
Commission and have a value in excess interviews to confirm the eligibility of to submit comments regarding these
of $10 million, by any means children under the Migrant Education proposed regulations. To ensure that
whatsoever; Program (MEP). Based on input from your comments have maximum effect in
MEP stakeholders, we propose to clarify developing the final regulations, we
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* * * * *
■ 3. Add § 33.12 to read as follows:
who constitutes an independent re- urge you to identify clearly the specific
interviewer, and to reduce the costs and section or sections of the proposed
§ 33.12 Notification requirement for certain burden of prospective re-interviews regulations that each of your comments
transactions. conducted by independent re- addresses and to arrange your comments
(a) Any public utility that is seeking interviewers, while maintaining in the same order as the proposed
to merge or consolidate, directly or adequate quality control measures to regulations.
indirectly, its facilities subject to the safeguard the integrity of program We invite you to assist us in
jurisdiction of the Commission, or any eligibility determinations. complying with the specific
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Document Created: 2018-11-28 23:44:26
Document Modified: 2018-11-28 23:44:26
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Comments are due December 31, 2018. | |
| Contact | Eric Olesh (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6524. Regine Baus (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8757. | |
| FR Citation | 83 FR 61338 | |
| CFR Associated | Electric Utilities; Reporting and Recordkeeping Requirements and Securities |
2024 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR