Payment of Dividends From Funds Included in Capital Accounts, 15708-15712 [2014-06162]

Download as PDF 15708 Federal Register / Vol. 79, No. 55 / Friday, March 21, 2014 / Proposed Rules distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: (1) Is not a ‘‘significant regulatory action’’ under Executive Order 12866, (2) Is not a ‘‘significant rule’’ under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979), (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Costs of Compliance We estimate that this proposed AD would affect about 150 engines installed on U.S. airplanes. We also estimate that it would take about 2.5 hours per engine to perform the inspection or replacement required by this proposed AD. The average labor rate is $85 per hour. No parts are required. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $31,875. mstockstill on DSK4VPTVN1PROD with PROPOSALS FAA’s Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of Canada and is approved for operation in the United States. Pursuant to our bilateral agreement with Canada, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by Canada and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require removal of the O-ring seal from the fuel manifold fitting to prevent in-flight fuel leakage resulting from improper connection or torquing, thus preventing engine fire, damage to the engine, and damage to the airplane. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA’s authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. ‘‘Subtitle VII: Aviation Programs,’’ describes in more detail the scope of the Agency’s authority. We are issuing this rulemaking under the authority described in ‘‘Subtitle VII, Part A, Subpart III, Section 44701: General requirements.’’ Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the VerDate Mar<15>2010 16:22 Mar 20, 2014 Jkt 232001 The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: ■ Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. Amend § 39.13 by adding the following new airworthiness directive (AD): ■ Pratt & Whitney Canada Corp.: Docket No. FAA–2013–1059; Directorate Identifier 2013–NE–36–AD. (a) Comments Due Date We must receive comments by May 20, 2014. (b) Affected ADs None. (d) Reason This AD was prompted by reports of fuel leaks at the interface between the fuel manifold and the fuel nozzle that resulted in engine fire. We are issuing this AD to prevent Frm 00002 Fmt 4702 (e) Actions and Compliance Unless already done, during the next opportunity when the affected subassembly is accessible, but no later than 18 months after the effective date of this AD, remove the O-ring seal from the fuel manifold fitting. (f) Alternative Methods of Compliance (AMOCs) The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request. (g) Related Information (1) For more information about this AD, contact Kevin Dickert, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7117; fax: 781–238–7199; email: kevin.dickert@faa.gov. (2) Refer to MCAI Transport Canada AD CF–2013–29, dated October 4, 2013, for related information. You may examine the MCAI in the AD docket on the Internet at https://www.regulations.gov by searching for and locating it in Docket No. FAA–2013– 1059. (3) P&WC Service Bulletin PW100–72– 21803, Revision No. 4, dated February 8, 2012, pertains to the subject of this AD and can be obtained from Pratt & Whitney Canada, using the contact information in paragraph (g)(4) of this AD. (4) For service information identified in this AD, contact Pratt & Whitney Canada Corp., 1000 Marie-Victorin Blvd., Longueuil, Quebec, Canada, J4G 1A1; phone: 800–268– 8000; fax: 450–647–2888; Web site: www.pwc.ca. (5) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125. Issued in Burlington, Massachusetts, on March 13, 2014. Colleen M. D’Alessandro, Assistant Directorate Manager, Engine & Propeller Directorate, Aircraft Certification Service. [FR Doc. 2014–06163 Filed 3–20–14; 8:45 am] BILLING CODE 4910–13–P (c) Applicability This AD applies to Pratt & Whitney Canada Corp. (P&WC) PW120, PW121, and PW121A turboprop engines with Post SB21610 configuration; PW124B, PW127, PW127E, PW127F, and PW127H turboprop engines with either Post SB21607 or Post SB21705 configuration, or both; and PW127G and PW127M turboprop engines. PO 00000 in-flight fuel leakage, which could lead to engine fire, damage to the engine, and damage to the airplane. Sfmt 4702 DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 2 and 35 [Docket No. PL14–1–000] Payment of Dividends From Funds Included in Capital Accounts Federal Energy Regulatory Commission. AGENCY: E:\FR\FM\21MRP1.SGM 21MRP1 Federal Register / Vol. 79, No. 55 / Friday, March 21, 2014 / Proposed Rules ACTION: Proposed policy statement. The Commission proposes, as a statement of policy, that section 305(a) of the Federal Power Act (FPA) should be interpreted as not prohibiting the payment of dividends from funds included in capital accounts by any public utility that has a market-based rate tariff on file with the Commission, does not have captive customers, and does not provide transmission or local distribution services. Because the payment of dividends from funds included in capital accounts by such public utilities does not appear to implicate the concerns underlying the enactment of FPA section 305(a), the Commission proposes this policy in order to eliminate a regulatory burden otherwise applicable under FPA section 305(a) to such public utilities. DATES: Comments on the proposed policy statement are due within May 20, 2014. FOR FURTHER INFORMATION CONTACT: Eric Olesh (Technical Information), Office of Energy Market Regulation, 888 First Street NE., Washington, DC 20426, (202) 502–6524, eric.olesh@ferc.gov. Antonia Frost (Legal Information), Office of General Counsel, 888 First Street NE., Washington, DC 20426, (202) 502–8085, antonia.frost@ferc.gov. SUPPLEMENTARY INFORMATION: SUMMARY: mstockstill on DSK4VPTVN1PROD with PROPOSALS Before Commissioners: Cheryl A. LaFleur, Acting Chairman; Philip D. Moeller, John R. Norris, and Tony Clark. Proposed Policy Statement (Issued February 20, 2014) 1. The Commission proposes, as a statement of policy, that section 305(a) of the Federal Power Act (FPA) 1 should be interpreted as not prohibiting the payment of dividends from funds included in capital accounts by any public utility that has a market-based rate tariff on file with the Commission, does not have captive customers, and does not provide transmission or local distribution services. Because the payment of dividends from capital accounts by such public utilities does not appear to implicate the concerns underlying the enactment of FPA section 305(a), the Commission proposes this policy in order to eliminate a regulatory burden otherwise applicable under FPA section 305(a) to such public utilities. I. Background A. FPA Section 305(a) and Its Underlying Concerns 2. FPA section 305(a) provides that: 1 16 U.S.C. 825d(a) (2012). VerDate Mar<15>2010 16:22 Mar 20, 2014 Jkt 232001 It shall be unlawful for any officer or director of any public utility . . . to participate in the making or paying of any dividends of such public utility from any funds properly included in capital account.2 3. In Citizens Utils. Co., the Commission noted that, at that time, this part of FPA section 305(a) had not yet been interpreted by the Commission or the courts, and that there was no explicit statement in the legislative history discussing the intent behind this provision.3 The Commission went on to explain, however, that Congress’ intent could be gleaned from the practices that led to the passage of the legislation,4 providing as an example: ‘‘that sources from which cash dividends were paid were not clearly identified and that holding companies had been paying out excessive dividends on the securities of their operating companies. A key concern, thus, was corporate officials raiding corporate coffers for their personal financial benefit.’’ 5 Indeed, as the Commission has stated, ‘‘a primary concern underlying section 305(a) of the FPA is to preclude exploitation of a utility by its directors or officers.’’ 6 Therefore, the Commission also has stated that it reviews ‘‘certain liquidity and financial matters when considering the potential impact of a transaction on an applicant’s financial condition.’’ 7 B. Petitions for Declaratory Order Requesting Relief 4. In cases in which a dividend (cash or otherwise) will be accounted for as a charge to stated, additional, or miscellaneous paid-in capital of a public utility,8 jurisdictional utilities have developed a practice of filing petitions for declaratory orders in which the petitioner requests the Commission’s concurrence that, based upon the facts and circumstances presented, as well as commitments made, the making or paying of a proposed dividend will not implicate 2 Id. 3 Citizens Utils. Co., 84 FERC ¶ 61,158, at 61,864 (1998) (Citizens). 4 Id. at 61,864–65. 5 Id. at 61,865 (footnotes omitted); see also Entergy Louisiana Inc., 114 FERC ¶ 61,060, at P 12 (2006); Exelon Corp., 109 FERC ¶ 61,172, at P 8 (2004); ALLETE, Inc., 107 FERC ¶ 61,041, at P 10 (2004). 6 Niagara Mohawk Holdings, Inc., 95 FERC ¶ 61,381, at 62,416, order denying reh’g, 96 FERC ¶ 61,144 (2001). 7 Exelon Corp., 109 FERC ¶ 61,172 at P 8 (footnote omitted) (citing Niagara Mohawk Holdings, Inc., 99 FERC ¶ 61,323, at P 4 (2002)). 8 See, e.g., Account 201, Common stock issued, and Account 211, Miscellaneous paid-in capital, Part 101 Uniform System of Accounts Prescribed for Public Utilities and Licensees Subject to the Provisions of the Federal Power Act. 18 CFR pt. 101 (2013). PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 15709 the concerns underlying the enactment of FPA section 305(a) and will not violate the prohibition in FPA section 305(a). The majority of these petitions have been filed because of concerns that have arisen in three situations: (1) In cases involving utility mergers or acquisitions in which, due to the application of purchase accounting to the transaction, the retained earnings (i.e., the traditional source of dividends) of the acquired public utility is reclassified for balance sheet purposes as additional paid-in capital, without having any effect on cash otherwise available for paying future dividends; 9 (2) in cases involving the spin-off of a subsidiary or subsidiaries of a public utility, as the result of which, again for balance sheet purposes, the retained earnings of the public utility may be substantially reduced or eliminated, without having any effect on cash otherwise available for paying future dividends; 10 and (3) in cases involving single-asset generating companies with declining capital needs that have experienced a build-up in their equity balances as their assets have been depreciated.11 5. In response to petitions for declaratory orders concerning these three situations, and in other situations, the Commission has found that FPA section 305(a) would not be violated when there were adequate protections to address the concerns underlying FPA section 305(a), and it has allowed the public utility to make or pay dividends from funds included in capital accounts. 6. The Commission has used a threefactor analysis, derived from Citizens, to determine that a proposed transaction does not implicate the concerns underlying FPA section 305(a), including that: (1) The utility clearly identifies the sources from which the dividends will be paid; (2) the dividends will not be excessive; and (3) the proposed transaction will not have an adverse effect on the value of shareholders’ interests.12 In certain orders granting relief from FPA section 305(a), issued subsequent to Citizens, the Commission’s determination also was based on commitments by petitioners either to a specific dollar cap on dividends or a limitation on the 9 See, e.g., National Grid plc, 117 FERC ¶ 61,080, at P 83 (2006), order denying reh’g, 122 FERC ¶ 61,096 (2008); Ameren Corp., 131 FERC ¶ 61,240 (2010); Duke Energy Ohio, Inc., 137 FERC ¶ 61,137 (2011). 10 See, e.g., Citizens, 84 FERC ¶ 61,158 (1998); ITC Holdings Corp., 143 FERC ¶ 61,256 (2013). 11 See, e.g., Allegheny Generating Co., 130 FERC ¶ 61,269 (2010); System Energy Resources, Inc., 140 FERC ¶ 61,184 (2012). 12 Citizens, 84 FERC at 61,865. E:\FR\FM\21MRP1.SGM 21MRP1 15710 Federal Register / Vol. 79, No. 55 / Friday, March 21, 2014 / Proposed Rules amount of the payment of dividends equal to the pre-merger retained earnings balance of the acquired utility, and/or a commitment by the public utility to limit the amount of dividends from paid-in capital so that common equity, as a percentage of total capitalization, is maintained at a minimum level (frequently, a minimum of 30 percent common equity as a percentage of total capitalization).13 7. Historically, these petitions for declaratory orders concerning FPA section 305(a) have largely involved requests by utilities that have captive customers.14 We have found that a proposed transaction would not violate FPA section 305(a) where we have been assured that no exploitation or threat to the financial integrity of the utilities would result from the payment of dividends from capital accounts.15 mstockstill on DSK4VPTVN1PROD with PROPOSALS C. May 16, 2013 Petition for Declaratory Order 8. This proposed policy statement is the outgrowth of a May 16, 2013 petition for declaratory order (May 16 Petition) 16 by Exelon Generation Company, LLC (Exelon Generation) and five of its direct and indirect subsidiaries (the Acquired Subsidiaries) 17 (collectively Applicants) requesting that the Commission confirm that FPA section 305(a) was not a bar to the payment of dividends from capital accounts under the limitations and circumstances described in the petition.18 The relative novelty in this 13 See, e.g., Duke Energy Ohio, Inc., 137 FERC ¶ 61,137, at P 7 (2011); National Grid plc, 117 FERC ¶ 61,080, at P 83 (2006). The Commission also has accepted alternative protections. See, e.g., Niagara Mohawk Holdings, Inc., 99 FERC ¶ 61,323, at PP 12–13 (2002). 14 The Commission’s regulations define ‘‘captive customers’’ to mean ‘‘any wholesale or retail electric energy customers served by a franchised public utility under cost-based regulation.’’ 18 CFR 35.36(a)(6) (2013). Our use of the term ‘‘captive customers’’ in this Proposed Policy Statement is based on this definition. 15 See, e.g., National Grid plc, 117 FERC ¶ 61,080 (2006), order denying reh’g, 122 FERC ¶ 61,096 (2008). 16 While the May 16 Petition arose from a merger transaction and related accounting issues (see infra note 18), our Proposed Policy Statement here is not limited in its applicability to transactions involving mergers and their related accounting issues. 17 The five direct and indirect subsidiaries of Exelon Generation included CER Generation II, LLC, Constellation Mystic Power, LLC, Constellation NewEnergy, Inc., Constellation Power Source Generation, Inc. and Criterion Power Partners, LLC. 18 The May 16 Petition arose from a merger transaction, and involved factual circumstances familiar to the Commission in the context of FPA section 305(a). Specifically, Applicants explained that the merger between Exelon Corporation (Exelon) and Constellation Energy Group, Inc. (Constellation) was recorded by Exelon under the purchase method of accounting and that Exelon VerDate Mar<15>2010 16:22 Mar 20, 2014 Jkt 232001 May 16 Petition was that it did not involve utilities that have captive customers.19 Rather, Applicants stated that Exelon Generation and the Acquired Subsidiaries did not have captive customers; did not provide transmission or local distribution service nor serve as a designated provider of last resort (POLR) for any class of customers; and had electric market-based rate authorizations from the Commission, with the standard waivers and exemptions, including waivers of FPA section 204(a) (with respect to securities issuances) 20 and waiver of the requirement to maintain their books and records in accordance with the Uniform System of Accounts (USofA).21 9. In the May 16 Petition, Applicants presented the Commission with two alternative requests: (1) The Commission could declare that FPA section 305(a) is not a bar to the proposed payment of dividends by the Applicants, and this determination could be based on the traditional Citizens three-part analysis, namely, that: (1) The source of the dividends will be clearly identified; (2) the dividends will not be excessive; and (3) applied ‘‘push-down’’ accounting to the Legacy Constellation Subsidiaries (i.e., all of the subsidiaries of Constellation that became direct and indirect subsidiaries of Exelon Generation), including the Acquired Subsidiaries. ‘‘Push-down’’ accounting is a method of accounting in which the financial statements of a subsidiary are presented to reflect the costs incurred by the parent company to buy the subsidiary, instead of the subsidiary’s historical costs. Accordingly, the purchase costs of the parent company are shown in the subsidiary’s statements. As a result of the ‘‘push-down’’ accounting adjustments to the Legacy Constellation Subsidiaries at the time of the merger closing, the pre-merger retained earnings balances of the Legacy Constellation Subsidiaries were ‘‘reset to zero’’ and reestablished on their books as miscellaneous paidin capital. In effect, the traditional source of dividends—retained earnings—was eliminated, without, however, having any impact on cash actually available for paying dividends. The purpose of the May 16 Petition was to obtain a Commission determination that FPA section 305(a) does not prohibit: (1) The Acquired Subsidiaries from paying dividends to their parent company, Exelon Generation, from their respective capital accounts in equal measure to the funds that were recorded as retained earnings at the close of the merger; and (2) Exelon Generation from, in turn, paying dividends to its parent company, Exelon Ventures LLC, from its capital accounts to the extent that Exelon Generation has received dividends from any of the Legacy Constellation Subsidiaries paid out of funds recorded as miscellaneous paid-in capital. 19 However, we note that, in Docket No. EL06–15– 000, Exelon Generation and an affiliate previously filed a petition for declaratory order requesting a declaration that FPA section 305(a) was not a bar to the payment of dividends from capital accounts under the limitations and circumstances described in that petition. Exelon Generation Company, LLC, 114 FERC ¶ 61,317 (2006). 20 16 U.S.C. 824c(a) (2012). 21 18 CFR pt. 101 (2013). PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 the issuance of such dividends will not harm shareholders; 22 or, alternatively, (2) the Commission could declare that FPA section 305(a) is not a bar to the payment of dividends by the Applicants and all current and future public utility subsidiaries of Exelon on new grounds that all of these entities have marketbased rate authority, do not have captive customers, do not provide transmission or local distribution service, and do not provide POLR for any class of customers, rather than on the basis of the application of the traditional Citizens three-factor analysis. In support of its latter alternative, Applicants argued that the capital concerns relating to traditional public utilities, which FPA section 305(a) was meant to address, are not present for these kinds of non-traditional public utilities. 10. In response to the May 16 Petition, the Electric Power Supply Association (EPSA) 23 filed comments generally supporting both alternative declarations requested by Applicants, but it also advocated that the Commission grant an even broader FPA section 305(a) determination.24 EPSA posited that the factors that made the Applicants’ petition compelling are broadly applicable to certain classes of public utilities, such as merchant generators and power marketers, which have market-based rate tariffs on file with the Commission, do not have captive customers, and do not provide transmission or local distribution services.25 EPSA added that, although Applicants proposed that the entities eligible for Applicants’ alternative broadly construed declaration include a limitation that they would not serve as a designated POLR, such condition is not necessary where a designated POLR would meet the other three criteria, i.e, would have market-based rate tariffs on file with the Commission, would not have captive customers, and would not provide transmission or local distribution services.26 Therefore, EPSA urged the Commission to omit the POLR limitation proposed by Applicants in granting the broader relief requested under section 305(a).27 11. In support of its request for a broader FPA section 305(a) determination, EPSA argued that, in the case of entities that have market-based rate authority, do not have captive 22 See supra P 6. is the national trade association for competitive power suppliers, including merchant generators and power marketers. 24 EPSA June 17, 2013 Comments at 1–2. 25 Id. at 2–4. 26 Id. at 2 n.3. 27 Id. 23 EPSA E:\FR\FM\21MRP1.SGM 21MRP1 Federal Register / Vol. 79, No. 55 / Friday, March 21, 2014 / Proposed Rules customers, do not provide transmission or local distribution services, the concerns underlying section 305(a) are not present.28 In such cases, according to EPSA, the distribution of dividends would not have any adverse effect on the financial integrity of any traditional public utility, its customers, or the ability of state commissions to protect public utility customers.29 12. In sum, because of the broad applicability of these principles to the competitive power industry as a whole, and in the interest of judicial economy, EPSA requested that the Commission issue a blanket declaratory order finding that FPA section 305(a) does not act as a bar to the payment of dividends from capital accounts by any public utility that has market-based rate authority, does not have captive customers, and does not provide transmission or local distribution services.30 13. In their answer, Applicants supported EPSA’s request for a broader FPA section 305(a) determination and, therefore, noted their agreement with EPSA’s proposal to drop the POLR limitation.31 As an additional basis for dropping the POLR limitation, Applicants observed that POLR service is a retail electric service and, thus, within the regulatory framework of state utility commissions.32 Applicants also stated that those public utilities that provide transmission and local distribution services and also serve as a POLR would not be eligible for the alternative broad declaration sought in Applicants’ petition in any event because of the limiting condition that such utilities are providing transmission and local distribution services.33 Further, Applicants asserted that eliminating the POLR limitation would have positive public policy implications because, in such case, non-traditional public utilities would not be discouraged from participating in POLR service due to the FPA section 305(a) limits on the payment of dividends.34 Accordingly, Applicants stated that they would not object to the Commission’s issuance of a blanket declaratory order based on EPSA’s proposal. 14. In its September 3, 2013 order 35 on the May 16 Petition, the Commission mstockstill on DSK4VPTVN1PROD with PROPOSALS 28 Id. at 5–6. at 5. 30 Id. at 2–4. 31 Applicants’ June 20, 2013 Answer at 3. Applicants note that POLR, or default, service is also known by other terms, such as Standard Offer Service or Basic Generation Service. Id. at 2 n.3. 32 Id. at 3. 33 Id. 34 Id. 35 Exelon Generation Company, LLC, 144 FERC ¶ 61,181 (2013). 29 Id. VerDate Mar<15>2010 16:22 Mar 20, 2014 Jkt 232001 granted Applicants’ primary request for relief, based on the Commission’s traditional Citizens grounds, since the Commission agreed that the concerns underlying FPA section 305(a) were not present under the limitations and circumstances described in the petition.36 While it declined to grant the broader relief requested in that proceeding, the Commission also stated that it believed that Applicants and EPSA had made a strong case for a close examination of whether FPA section 305(a) should be interpreted as not prohibiting the payment of dividends from capital accounts by any public utility that has a market-based rate tariff on file with the Commission, does not have captive customers, and does not provide transmission or local distribution services.37 Accordingly, the Commission stated its intent to open a generic proceeding to consider the broader request for relief, which would provide public notice and an opportunity for a broader range of interested parties to comment.38 II. Discussion 15. In this proposed policy statement, we undertake that generic proceeding to consider whether FPA section 305(a) should be interpreted as not prohibiting the payment of dividends from capital accounts by any public utility that has a market-based rate tariff on file with the Commission, does not have captive customers,39 and does not provide transmission or local distribution services.40 Because we believe that the payment of dividends from capital accounts by such public utilities does not appear to create the concerns underlying the enactment of FPA section 305(a), we propose this policy in order to eliminate this regulatory burden under FPA section 305(a) for such public utilities. 16. As previously noted, we believe that Applicants and EPSA made a strong case for a close examination of whether FPA section 305(a) should be interpreted as not prohibiting the payment of dividends from capital accounts by any public utility that has a market-based rate tariff on file with the Commission, does not have captive customers, and does not provide transmission or local distribution services. In particular, Applicants argued that, in Order No. 697, the 36 Id. 37 Id. PP 20–21. P 22. 38 Id. 39 See supra note 14. propose that a public utility that does not provide transmission or local distribution service is a public utility that does not own transmission or local distribution facilities providing these services. 40 We PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 15711 Commission concluded that it was appropriate to apply a different standard of oversight to public utilities that do not have captive customers and do not sell electricity at cost-based rates.41 In Order No. 697, the Commission found that it was reasonable to continue to grant entities that do not have captive customers and do not sell electricity at cost-based rates: (1) Blanket authorizations under FPA section 204(a) to issue securities; and (2) waivers from the requirement to maintain their books in accordance with the USofA.42 In essence, Applicants argued that it would be unusual for the Commission to grant a non-traditional public utility (i.e., merchant generators and power marketers) with market-based rate authorization a blanket authorization under FPA section 204(a) to issue securities, as well as a waiver from the requirement to maintain their books in accordance with the USofA, while, at the same time, under FPA section 305(a), limiting the accounts from which that public utility may pay dividends.43 17. Under the conditions advocated by Applicants and EPSA, we observe that the eligible public utility: (1) Will have satisfied the Commission’s market power analysis to obtain market-based rate authority for its wholesale power sales; (2) will have no captive customers that require protection by the Commission or the state commissions; and (3) will not provide transmission or local distribution services, which are traditional monopoly services subject to Commission and state commission oversight, to customers. Similar to our finding in Order No. 697, it may be appropriate to now apply a different approach to our FPA section 305(a) oversight for those public utilities that meet these three conditions. We note, in 41 Applicants’ May 16, 2013 Petition at 14. Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, Order No. 697, FERC Stats. & Regs. ¶ 31,252, at PP 984, 999, clarified, 121 FERC ¶ 61,260 (2007), order on reh’g, Order No. 697–A, FERC Stats. & Regs. ¶ 31,268, clarified, 124 FERC ¶ 61,055, order on reh’g, Order No. 697–B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh’g, Order No. 697–C, FERC Stats. & Regs. ¶ 31,291 (2009), order on reh’g, Order No. 697–D, FERC Stats. & Regs. ¶ 31,305 (2010), aff’d sub nom. Montana Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011), cert. denied, 133 S. Ct 26 (2012). 43 Applicants’ May 16, 2013 Petition at 15. Specifically, Applicants asserted that it would be anomalous for the Commission to have previously concluded that it did not need to be concerned about the character and quality of securities by a non-traditional public utility (under FPA section 204(a)) or the manner in which a non-traditional public utility keeps its accounts (under the USofA), and to now conclude that the Commission is concerned about how a non-traditional public utility accounts for dividends paid on its securities (under FPA section 305(a)). Id. 42 Market-Based E:\FR\FM\21MRP1.SGM 21MRP1 15712 Federal Register / Vol. 79, No. 55 / Friday, March 21, 2014 / Proposed Rules this regard, that FPA section 305(a) was promulgated in an era of traditional, vertically-integrated utilities providing monopoly services to captive customers, and Congress wanted to ensure that the distribution of dividends would not have any adverse effect on the financial integrity (and thus the ability to serve) of any such public utility or its customers. Since that time, the electric industry has evolved, and here we propose to oversee differently the payment of dividends by non-traditional utilities, such as merchant generators and power marketers, who have marketbased rate authority, do not have captive customers, and do not provide transmission and local distribution services, which, as noted, are monopoly services. 18. For these reasons, we request comment as to whether the Commission should adopt a statement of policy that FPA section 305(a) should be interpreted as not prohibiting the payment of dividends from funds in capital accounts by any public utility that has a market-based rate tariff on file with the Commission, does not have captive customers, and does not provide transmission or local distribution services, because such payment of dividends does not appear to implicate the concerns underlying the enactment of FPA section 305(a) and it is thus appropriate to eliminate this regulatory burden otherwise applicable under FPA section 305(a) to such public utilities. mstockstill on DSK4VPTVN1PROD with PROPOSALS III. Comment Procedures 19. The Commission invites comments on this proposed policy statement within May 20, 2014. IV. Document Availability 20. 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 (https:// www.ferc.gov) and in the Commission’s Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426. 21. 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. 22. User assistance is available for eLibrary and the Commission’s Web site VerDate Mar<15>2010 16:22 Mar 20, 2014 Jkt 232001 during normal business hours from FERC 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. By the Commission. Nathaniel J. Davis, Sr., Deputy Secretary. [FR Doc. 2014–06162 Filed 3–20–14; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG–2014–0110 RIN 1625–AA08 Special Local Regulation; Low Country Splash, Wando River, Cooper River, and Charleston Harbor, Charleston, SC Coast Guard, DHS. Notice of Proposed Rulemaking. AGENCY: ACTION: The Coast Guard proposes to issue a special local regulation on the waters of the Wando River, Cooper River, and Charleston Harbor in Charleston, SC during the Low Country Splash in Charleston, SC, on May 24, 2014, from 7 a.m. to 9 a.m. This special local regulation is necessary to ensure the safety of participants, spectators, and the general public during the event. The special local regulation will temporarily restrict vessel traffic in a portion of the Wando River and Charleston Harbor, preventing nonparticipant vessels from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Charleston or a designated representative. SUMMARY: Comments and related material must be received by the Coast Guard on or before April 4, 2014. Requests for public meetings must be received by the Coast Guard by April 4, 2014. ADDRESSES: You may submit comments identified by docket number using any one of the following methods: (1) Federal eRulemaking Portal: https://www.regulations.gov. (2) Fax: 202–493–2251. (3) Mail or Delivery: Docket Management Facility (M–30), U.S. Department of Transportation, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., DATES: PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 Washington, DC 20590–0001. Deliveries accepted between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. The telephone number is 202– 366–9329. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods. FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or email Chief Warrant Officer Christopher Ruleman, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740–3184, email Christopher.L.Ruleman@uscg.mil. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366–9826. SUPPLEMENTARY INFORMATION: Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Public Participation and Request for Comments We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to https:// www.regulations.gov and will include any personal information you have provided. 1. Submitting Comments If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at https:// www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission. To submit your comment online, go to https://www.regulations.gov, type the E:\FR\FM\21MRP1.SGM 21MRP1

Agencies

[Federal Register Volume 79, Number 55 (Friday, March 21, 2014)]
[Proposed Rules]
[Pages 15708-15712]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-06162]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 2 and 35

[Docket No. PL14-1-000]


Payment of Dividends From Funds Included in Capital Accounts

AGENCY: Federal Energy Regulatory Commission.

[[Page 15709]]


ACTION: Proposed policy statement.

-----------------------------------------------------------------------

SUMMARY: The Commission proposes, as a statement of policy, that 
section 305(a) of the Federal Power Act (FPA) should be interpreted as 
not prohibiting the payment of dividends from funds included in capital 
accounts by any public utility that has a market-based rate tariff on 
file with the Commission, does not have captive customers, and does not 
provide transmission or local distribution services. Because the 
payment of dividends from funds included in capital accounts by such 
public utilities does not appear to implicate the concerns underlying 
the enactment of FPA section 305(a), the Commission proposes this 
policy in order to eliminate a regulatory burden otherwise applicable 
under FPA section 305(a) to such public utilities.

DATES: Comments on the proposed policy statement are due within May 20, 
2014.

FOR FURTHER INFORMATION CONTACT: Eric Olesh (Technical Information), 
Office of Energy Market Regulation, 888 First Street NE., Washington, 
DC 20426, (202) 502-6524, eric.olesh@ferc.gov. Antonia Frost (Legal 
Information), Office of General Counsel, 888 First Street NE., 
Washington, DC 20426, (202) 502-8085, antonia.frost@ferc.gov.

SUPPLEMENTARY INFORMATION:

    Before Commissioners: Cheryl A. LaFleur, Acting Chairman; Philip 
D. Moeller, John R. Norris, and Tony Clark.

Proposed Policy Statement

    (Issued February 20, 2014)
    1. The Commission proposes, as a statement of policy, that section 
305(a) of the Federal Power Act (FPA) \1\ should be interpreted as not 
prohibiting the payment of dividends from funds included in capital 
accounts by any public utility that has a market-based rate tariff on 
file with the Commission, does not have captive customers, and does not 
provide transmission or local distribution services. Because the 
payment of dividends from capital accounts by such public utilities 
does not appear to implicate the concerns underlying the enactment of 
FPA section 305(a), the Commission proposes this policy in order to 
eliminate a regulatory burden otherwise applicable under FPA section 
305(a) to such public utilities.
---------------------------------------------------------------------------

    \1\ 16 U.S.C. 825d(a) (2012).
---------------------------------------------------------------------------

I. Background

A. FPA Section 305(a) and Its Underlying Concerns

    2. FPA section 305(a) provides that:

It shall be unlawful for any officer or director of any public 
utility . . . to participate in the making or paying of any 
dividends of such public utility from any funds properly included in 
capital account.\2\
---------------------------------------------------------------------------

    \2\ Id.

    3. In Citizens Utils. Co., the Commission noted that, at that time, 
this part of FPA section 305(a) had not yet been interpreted by the 
Commission or the courts, and that there was no explicit statement in 
the legislative history discussing the intent behind this provision.\3\ 
The Commission went on to explain, however, that Congress' intent could 
be gleaned from the practices that led to the passage of the 
legislation,\4\ providing as an example: ``that sources from which cash 
dividends were paid were not clearly identified and that holding 
companies had been paying out excessive dividends on the securities of 
their operating companies. A key concern, thus, was corporate officials 
raiding corporate coffers for their personal financial benefit.'' \5\ 
Indeed, as the Commission has stated, ``a primary concern underlying 
section 305(a) of the FPA is to preclude exploitation of a utility by 
its directors or officers.'' \6\ Therefore, the Commission also has 
stated that it reviews ``certain liquidity and financial matters when 
considering the potential impact of a transaction on an applicant's 
financial condition.'' \7\
---------------------------------------------------------------------------

    \3\ Citizens Utils. Co., 84 FERC ] 61,158, at 61,864 (1998) 
(Citizens).
    \4\ Id. at 61,864-65.
    \5\ Id. at 61,865 (footnotes omitted); see also Entergy 
Louisiana Inc., 114 FERC ] 61,060, at P 12 (2006); Exelon Corp., 109 
FERC ] 61,172, at P 8 (2004); ALLETE, Inc., 107 FERC ] 61,041, at P 
10 (2004).
    \6\ Niagara Mohawk Holdings, Inc., 95 FERC ] 61,381, at 62,416, 
order denying reh'g, 96 FERC ] 61,144 (2001).
    \7\ Exelon Corp., 109 FERC ] 61,172 at P 8 (footnote omitted) 
(citing Niagara Mohawk Holdings, Inc., 99 FERC ] 61,323, at P 4 
(2002)).
---------------------------------------------------------------------------

B. Petitions for Declaratory Order Requesting Relief

    4. In cases in which a dividend (cash or otherwise) will be 
accounted for as a charge to stated, additional, or miscellaneous paid-
in capital of a public utility,\8\ jurisdictional utilities have 
developed a practice of filing petitions for declaratory orders in 
which the petitioner requests the Commission's concurrence that, based 
upon the facts and circumstances presented, as well as commitments 
made, the making or paying of a proposed dividend will not implicate 
the concerns underlying the enactment of FPA section 305(a) and will 
not violate the prohibition in FPA section 305(a). The majority of 
these petitions have been filed because of concerns that have arisen in 
three situations: (1) In cases involving utility mergers or 
acquisitions in which, due to the application of purchase accounting to 
the transaction, the retained earnings (i.e., the traditional source of 
dividends) of the acquired public utility is reclassified for balance 
sheet purposes as additional paid-in capital, without having any effect 
on cash otherwise available for paying future dividends; \9\ (2) in 
cases involving the spin-off of a subsidiary or subsidiaries of a 
public utility, as the result of which, again for balance sheet 
purposes, the retained earnings of the public utility may be 
substantially reduced or eliminated, without having any effect on cash 
otherwise available for paying future dividends; \10\ and (3) in cases 
involving single-asset generating companies with declining capital 
needs that have experienced a build-up in their equity balances as 
their assets have been depreciated.\11\
---------------------------------------------------------------------------

    \8\ See, e.g., Account 201, Common stock issued, and Account 
211, Miscellaneous paid-in capital, Part 101 Uniform System of 
Accounts Prescribed for Public Utilities and Licensees Subject to 
the Provisions of the Federal Power Act. 18 CFR pt. 101 (2013).
    \9\ See, e.g., National Grid plc, 117 FERC ] 61,080, at P 83 
(2006), order denying reh'g, 122 FERC ] 61,096 (2008); Ameren Corp., 
131 FERC ] 61,240 (2010); Duke Energy Ohio, Inc., 137 FERC ] 61,137 
(2011).
    \10\ See, e.g., Citizens, 84 FERC ] 61,158 (1998); ITC Holdings 
Corp., 143 FERC ] 61,256 (2013).
    \11\ See, e.g., Allegheny Generating Co., 130 FERC ] 61,269 
(2010); System Energy Resources, Inc., 140 FERC ] 61,184 (2012).
---------------------------------------------------------------------------

    5. In response to petitions for declaratory orders concerning these 
three situations, and in other situations, the Commission has found 
that FPA section 305(a) would not be violated when there were adequate 
protections to address the concerns underlying FPA section 305(a), and 
it has allowed the public utility to make or pay dividends from funds 
included in capital accounts.
    6. The Commission has used a three-factor analysis, derived from 
Citizens, to determine that a proposed transaction does not implicate 
the concerns underlying FPA section 305(a), including that: (1) The 
utility clearly identifies the sources from which the dividends will be 
paid; (2) the dividends will not be excessive; and (3) the proposed 
transaction will not have an adverse effect on the value of 
shareholders' interests.\12\ In certain orders granting relief from FPA 
section 305(a), issued subsequent to Citizens, the Commission's 
determination also was based on commitments by petitioners either to a 
specific dollar cap on dividends or a limitation on the

[[Page 15710]]

amount of the payment of dividends equal to the pre-merger retained 
earnings balance of the acquired utility, and/or a commitment by the 
public utility to limit the amount of dividends from paid-in capital so 
that common equity, as a percentage of total capitalization, is 
maintained at a minimum level (frequently, a minimum of 30 percent 
common equity as a percentage of total capitalization).\13\
---------------------------------------------------------------------------

    \12\ Citizens, 84 FERC at 61,865.
    \13\ See, e.g., Duke Energy Ohio, Inc., 137 FERC ] 61,137, at P 
7 (2011); National Grid plc, 117 FERC ] 61,080, at P 83 (2006). The 
Commission also has accepted alternative protections. See, e.g., 
Niagara Mohawk Holdings, Inc., 99 FERC ] 61,323, at PP 12-13 (2002).
---------------------------------------------------------------------------

    7. Historically, these petitions for declaratory orders concerning 
FPA section 305(a) have largely involved requests by utilities that 
have captive customers.\14\ We have found that a proposed transaction 
would not violate FPA section 305(a) where we have been assured that no 
exploitation or threat to the financial integrity of the utilities 
would result from the payment of dividends from capital accounts.\15\
---------------------------------------------------------------------------

    \14\ The Commission's regulations define ``captive customers'' 
to mean ``any wholesale or retail electric energy customers served 
by a franchised public utility under cost-based regulation.'' 18 CFR 
35.36(a)(6) (2013). Our use of the term ``captive customers'' in 
this Proposed Policy Statement is based on this definition.
    \15\ See, e.g., National Grid plc, 117 FERC ] 61,080 (2006), 
order denying reh'g, 122 FERC ] 61,096 (2008).
---------------------------------------------------------------------------

C. May 16, 2013 Petition for Declaratory Order

    8. This proposed policy statement is the outgrowth of a May 16, 
2013 petition for declaratory order (May 16 Petition) \16\ by Exelon 
Generation Company, LLC (Exelon Generation) and five of its direct and 
indirect subsidiaries (the Acquired Subsidiaries) \17\ (collectively 
Applicants) requesting that the Commission confirm that FPA section 
305(a) was not a bar to the payment of dividends from capital accounts 
under the limitations and circumstances described in the petition.\18\ 
The relative novelty in this May 16 Petition was that it did not 
involve utilities that have captive customers.\19\ Rather, Applicants 
stated that Exelon Generation and the Acquired Subsidiaries did not 
have captive customers; did not provide transmission or local 
distribution service nor serve as a designated provider of last resort 
(POLR) for any class of customers; and had electric market-based rate 
authorizations from the Commission, with the standard waivers and 
exemptions, including waivers of FPA section 204(a) (with respect to 
securities issuances) \20\ and waiver of the requirement to maintain 
their books and records in accordance with the Uniform System of 
Accounts (USofA).\21\
---------------------------------------------------------------------------

    \16\ While the May 16 Petition arose from a merger transaction 
and related accounting issues (see infra note 18), our Proposed 
Policy Statement here is not limited in its applicability to 
transactions involving mergers and their related accounting issues.
    \17\ The five direct and indirect subsidiaries of Exelon 
Generation included CER Generation II, LLC, Constellation Mystic 
Power, LLC, Constellation NewEnergy, Inc., Constellation Power 
Source Generation, Inc. and Criterion Power Partners, LLC.
    \18\ The May 16 Petition arose from a merger transaction, and 
involved factual circumstances familiar to the Commission in the 
context of FPA section 305(a). Specifically, Applicants explained 
that the merger between Exelon Corporation (Exelon) and 
Constellation Energy Group, Inc. (Constellation) was recorded by 
Exelon under the purchase method of accounting and that Exelon 
applied ``push-down'' accounting to the Legacy Constellation 
Subsidiaries (i.e., all of the subsidiaries of Constellation that 
became direct and indirect subsidiaries of Exelon Generation), 
including the Acquired Subsidiaries. ``Push-down'' accounting is a 
method of accounting in which the financial statements of a 
subsidiary are presented to reflect the costs incurred by the parent 
company to buy the subsidiary, instead of the subsidiary's 
historical costs. Accordingly, the purchase costs of the parent 
company are shown in the subsidiary's statements. As a result of the 
``push-down'' accounting adjustments to the Legacy Constellation 
Subsidiaries at the time of the merger closing, the pre-merger 
retained earnings balances of the Legacy Constellation Subsidiaries 
were ``reset to zero'' and reestablished on their books as 
miscellaneous paid-in capital. In effect, the traditional source of 
dividends--retained earnings--was eliminated, without, however, 
having any impact on cash actually available for paying dividends. 
The purpose of the May 16 Petition was to obtain a Commission 
determination that FPA section 305(a) does not prohibit: (1) The 
Acquired Subsidiaries from paying dividends to their parent company, 
Exelon Generation, from their respective capital accounts in equal 
measure to the funds that were recorded as retained earnings at the 
close of the merger; and (2) Exelon Generation from, in turn, paying 
dividends to its parent company, Exelon Ventures LLC, from its 
capital accounts to the extent that Exelon Generation has received 
dividends from any of the Legacy Constellation Subsidiaries paid out 
of funds recorded as miscellaneous paid-in capital.
    \19\ However, we note that, in Docket No. EL06-15-000, Exelon 
Generation and an affiliate previously filed a petition for 
declaratory order requesting a declaration that FPA section 305(a) 
was not a bar to the payment of dividends from capital accounts 
under the limitations and circumstances described in that petition. 
Exelon Generation Company, LLC, 114 FERC ] 61,317 (2006).
    \20\ 16 U.S.C. 824c(a) (2012).
    \21\ 18 CFR pt. 101 (2013).
---------------------------------------------------------------------------

    9. In the May 16 Petition, Applicants presented the Commission with 
two alternative requests:
    (1) The Commission could declare that FPA section 305(a) is not a 
bar to the proposed payment of dividends by the Applicants, and this 
determination could be based on the traditional Citizens three-part 
analysis, namely, that: (1) The source of the dividends will be clearly 
identified; (2) the dividends will not be excessive; and (3) the 
issuance of such dividends will not harm shareholders; \22\ or, 
alternatively,
---------------------------------------------------------------------------

    \22\ See supra P 6.
---------------------------------------------------------------------------

    (2) the Commission could declare that FPA section 305(a) is not a 
bar to the payment of dividends by the Applicants and all current and 
future public utility subsidiaries of Exelon on new grounds that all of 
these entities have market-based rate authority, do not have captive 
customers, do not provide transmission or local distribution service, 
and do not provide POLR for any class of customers, rather than on the 
basis of the application of the traditional Citizens three-factor 
analysis.
    In support of its latter alternative, Applicants argued that the 
capital concerns relating to traditional public utilities, which FPA 
section 305(a) was meant to address, are not present for these kinds of 
non-traditional public utilities.
    10. In response to the May 16 Petition, the Electric Power Supply 
Association (EPSA) \23\ filed comments generally supporting both 
alternative declarations requested by Applicants, but it also advocated 
that the Commission grant an even broader FPA section 305(a) 
determination.\24\ EPSA posited that the factors that made the 
Applicants' petition compelling are broadly applicable to certain 
classes of public utilities, such as merchant generators and power 
marketers, which have market-based rate tariffs on file with the 
Commission, do not have captive customers, and do not provide 
transmission or local distribution services.\25\ EPSA added that, 
although Applicants proposed that the entities eligible for Applicants' 
alternative broadly construed declaration include a limitation that 
they would not serve as a designated POLR, such condition is not 
necessary where a designated POLR would meet the other three criteria, 
i.e, would have market-based rate tariffs on file with the Commission, 
would not have captive customers, and would not provide transmission or 
local distribution services.\26\ Therefore, EPSA urged the Commission 
to omit the POLR limitation proposed by Applicants in granting the 
broader relief requested under section 305(a).\27\
---------------------------------------------------------------------------

    \23\ EPSA is the national trade association for competitive 
power suppliers, including merchant generators and power marketers.
    \24\ EPSA June 17, 2013 Comments at 1-2.
    \25\ Id. at 2-4.
    \26\ Id. at 2 n.3.
    \27\ Id.
---------------------------------------------------------------------------

    11. In support of its request for a broader FPA section 305(a) 
determination, EPSA argued that, in the case of entities that have 
market-based rate authority, do not have captive

[[Page 15711]]

customers, do not provide transmission or local distribution services, 
the concerns underlying section 305(a) are not present.\28\ In such 
cases, according to EPSA, the distribution of dividends would not have 
any adverse effect on the financial integrity of any traditional public 
utility, its customers, or the ability of state commissions to protect 
public utility customers.\29\
---------------------------------------------------------------------------

    \28\ Id. at 5-6.
    \29\ Id. at 5.
---------------------------------------------------------------------------

    12. In sum, because of the broad applicability of these principles 
to the competitive power industry as a whole, and in the interest of 
judicial economy, EPSA requested that the Commission issue a blanket 
declaratory order finding that FPA section 305(a) does not act as a bar 
to the payment of dividends from capital accounts by any public utility 
that has market-based rate authority, does not have captive customers, 
and does not provide transmission or local distribution services.\30\
---------------------------------------------------------------------------

    \30\ Id. at 2-4.
---------------------------------------------------------------------------

    13. In their answer, Applicants supported EPSA's request for a 
broader FPA section 305(a) determination and, therefore, noted their 
agreement with EPSA's proposal to drop the POLR limitation.\31\ As an 
additional basis for dropping the POLR limitation, Applicants observed 
that POLR service is a retail electric service and, thus, within the 
regulatory framework of state utility commissions.\32\ Applicants also 
stated that those public utilities that provide transmission and local 
distribution services and also serve as a POLR would not be eligible 
for the alternative broad declaration sought in Applicants' petition in 
any event because of the limiting condition that such utilities are 
providing transmission and local distribution services.\33\ Further, 
Applicants asserted that eliminating the POLR limitation would have 
positive public policy implications because, in such case, non-
traditional public utilities would not be discouraged from 
participating in POLR service due to the FPA section 305(a) limits on 
the payment of dividends.\34\ Accordingly, Applicants stated that they 
would not object to the Commission's issuance of a blanket declaratory 
order based on EPSA's proposal.
---------------------------------------------------------------------------

    \31\ Applicants' June 20, 2013 Answer at 3. Applicants note that 
POLR, or default, service is also known by other terms, such as 
Standard Offer Service or Basic Generation Service. Id. at 2 n.3.
    \32\ Id. at 3.
    \33\ Id.
    \34\ Id.
---------------------------------------------------------------------------

    14. In its September 3, 2013 order \35\ on the May 16 Petition, the 
Commission granted Applicants' primary request for relief, based on the 
Commission's traditional Citizens grounds, since the Commission agreed 
that the concerns underlying FPA section 305(a) were not present under 
the limitations and circumstances described in the petition.\36\ While 
it declined to grant the broader relief requested in that proceeding, 
the Commission also stated that it believed that Applicants and EPSA 
had made a strong case for a close examination of whether FPA section 
305(a) should be interpreted as not prohibiting the payment of 
dividends from capital accounts by any public utility that has a 
market-based rate tariff on file with the Commission, does not have 
captive customers, and does not provide transmission or local 
distribution services.\37\ Accordingly, the Commission stated its 
intent to open a generic proceeding to consider the broader request for 
relief, which would provide public notice and an opportunity for a 
broader range of interested parties to comment.\38\
---------------------------------------------------------------------------

    \35\ Exelon Generation Company, LLC, 144 FERC ] 61,181 (2013).
    \36\ Id. PP 20-21.
    \37\ Id. P 22.
    \38\ Id.
---------------------------------------------------------------------------

II. Discussion

    15. In this proposed policy statement, we undertake that generic 
proceeding to consider whether FPA section 305(a) should be interpreted 
as not prohibiting the payment of dividends from capital accounts by 
any public utility that has a market-based rate tariff on file with the 
Commission, does not have captive customers,\39\ and does not provide 
transmission or local distribution services.\40\ Because we believe 
that the payment of dividends from capital accounts by such public 
utilities does not appear to create the concerns underlying the 
enactment of FPA section 305(a), we propose this policy in order to 
eliminate this regulatory burden under FPA section 305(a) for such 
public utilities.
---------------------------------------------------------------------------

    \39\ See supra note 14.
    \40\ We propose that a public utility that does not provide 
transmission or local distribution service is a public utility that 
does not own transmission or local distribution facilities providing 
these services.
---------------------------------------------------------------------------

    16. As previously noted, we believe that Applicants and EPSA made a 
strong case for a close examination of whether FPA section 305(a) 
should be interpreted as not prohibiting the payment of dividends from 
capital accounts by any public utility that has a market-based rate 
tariff on file with the Commission, does not have captive customers, 
and does not provide transmission or local distribution services. In 
particular, Applicants argued that, in Order No. 697, the Commission 
concluded that it was appropriate to apply a different standard of 
oversight to public utilities that do not have captive customers and do 
not sell electricity at cost-based rates.\41\ In Order No. 697, the 
Commission found that it was reasonable to continue to grant entities 
that do not have captive customers and do not sell electricity at cost-
based rates: (1) Blanket authorizations under FPA section 204(a) to 
issue securities; and (2) waivers from the requirement to maintain 
their books in accordance with the USofA.\42\ In essence, Applicants 
argued that it would be unusual for the Commission to grant a non-
traditional public utility (i.e., merchant generators and power 
marketers) with market-based rate authorization a blanket authorization 
under FPA section 204(a) to issue securities, as well as a waiver from 
the requirement to maintain their books in accordance with the USofA, 
while, at the same time, under FPA section 305(a), limiting the 
accounts from which that public utility may pay dividends.\43\
---------------------------------------------------------------------------

    \41\ Applicants' May 16, 2013 Petition at 14.
    \42\ Market-Based Rates for Wholesale Sales of Electric Energy, 
Capacity and Ancillary Services by Public Utilities, Order No. 697, 
FERC Stats. & Regs. ] 31,252, at PP 984, 999, clarified, 121 FERC ] 
61,260 (2007), order on reh'g, Order No. 697-A, FERC Stats. & Regs. 
] 31,268, clarified, 124 FERC ] 61,055, order on reh'g, Order No. 
697-B, FERC Stats. & Regs. ] 31,285 (2008), order on reh'g, Order 
No. 697-C, FERC Stats. & Regs. ] 31,291 (2009), order on reh'g, 
Order No. 697-D, FERC Stats. & Regs. ] 31,305 (2010), aff'd sub nom. 
Montana Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011), 
cert. denied, 133 S. Ct 26 (2012).
    \43\ Applicants' May 16, 2013 Petition at 15. Specifically, 
Applicants asserted that it would be anomalous for the Commission to 
have previously concluded that it did not need to be concerned about 
the character and quality of securities by a non-traditional public 
utility (under FPA section 204(a)) or the manner in which a non-
traditional public utility keeps its accounts (under the USofA), and 
to now conclude that the Commission is concerned about how a non-
traditional public utility accounts for dividends paid on its 
securities (under FPA section 305(a)). Id.
---------------------------------------------------------------------------

    17. Under the conditions advocated by Applicants and EPSA, we 
observe that the eligible public utility: (1) Will have satisfied the 
Commission's market power analysis to obtain market-based rate 
authority for its wholesale power sales; (2) will have no captive 
customers that require protection by the Commission or the state 
commissions; and (3) will not provide transmission or local 
distribution services, which are traditional monopoly services subject 
to Commission and state commission oversight, to customers. Similar to 
our finding in Order No. 697, it may be appropriate to now apply a 
different approach to our FPA section 305(a) oversight for those public 
utilities that meet these three conditions. We note, in

[[Page 15712]]

this regard, that FPA section 305(a) was promulgated in an era of 
traditional, vertically-integrated utilities providing monopoly 
services to captive customers, and Congress wanted to ensure that the 
distribution of dividends would not have any adverse effect on the 
financial integrity (and thus the ability to serve) of any such public 
utility or its customers. Since that time, the electric industry has 
evolved, and here we propose to oversee differently the payment of 
dividends by non-traditional utilities, such as merchant generators and 
power marketers, who have market-based rate authority, do not have 
captive customers, and do not provide transmission and local 
distribution services, which, as noted, are monopoly services.
    18. For these reasons, we request comment as to whether the 
Commission should adopt a statement of policy that FPA section 305(a) 
should be interpreted as not prohibiting the payment of dividends from 
funds in capital accounts by any public utility that has a market-based 
rate tariff on file with the Commission, does not have captive 
customers, and does not provide transmission or local distribution 
services, because such payment of dividends does not appear to 
implicate the concerns underlying the enactment of FPA section 305(a) 
and it is thus appropriate to eliminate this regulatory burden 
otherwise applicable under FPA section 305(a) to such public utilities.

III. Comment Procedures

    19. The Commission invites comments on this proposed policy 
statement within May 20, 2014.

IV. Document Availability

    20. 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 (https://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, 
Washington, DC 20426.
    21. 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.
    22. User assistance is available for eLibrary and the Commission's 
Web site during normal business hours from FERC 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.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2014-06162 Filed 3-20-14; 8:45 am]
BILLING CODE 6717-01-P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.