Petition of Respondent DTE Energy Company To Reopen and Modify Decision and Order, 55611-55614 [2021-21808]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Notices]
[Pages 55611-55614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21808]


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FEDERAL TRADE COMMISSION

[File No. 191 0068/Docket No. C-4691]


Petition of Respondent DTE Energy Company To Reopen and Modify 
Decision and Order

AGENCY: Federal Trade Commission.

ACTION: Announcement of Petition; Request for Comment.

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SUMMARY: DTE Energy Company (``DTE'' or ``the company'') has requested 
that the Federal Trade Commission (``FTC'' or ``Commission'') reopen 
and modify the Commission's Decision and Order entered on November 21, 
2019 (the ``Order''), concerning the purchase of a natural gas pipeline 
and related assets. DTE requests that the Commission relieve the 
company of all continuing obligations under the Order because DTE has 
exited the relevant market addressed by the Order and its successor 
remains under the Order. Publication of the petition from DTE is not 
intended to affect the legal status of the petition or its final 
disposition.

DATES: Comments must be received on or before November 5, 2021.

ADDRESSES: Interested parties may file comments online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Please write: ``DTE Petition 
to Reopen and Modify; Docket No. C-4691'' on your comment, and file 
your comment online at www.regulations.gov by following the 
instructions on the web-based form. If you prefer to file your comment 
on paper, please mail your comment to the following address: Federal 
Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, 
Suite CC-5610 (Annex D), Washington, DC 20580; or deliver your comment 
to the following address: Federal Trade Commission, Office of the 
Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 
5610 (Annex D), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Aylin M. Skroejer (202-326-2459), 
Bureau of Competition, Federal Trade Commission, 600 Pennsylvania 
Avenue NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION: Pursuant to Section 6(g) of the Federal 
Trade

[[Page 55612]]

Commission Act, 15 U.S.C. 46(g), and FTC Rule 2.51, 16 CFR 2.51, notice 
is hereby given that the above-captioned petition has been filed with 
the Secretary of the Commission and is being placed on the public 
record for a period of thirty (30) days. After the period for public 
comments has expired and no later than one hundred and twenty (120) 
days after the date of the filing of the request, the Commission shall 
determine whether to reopen the proceeding and modify the Order as 
requested. In making its determination, the Commission will consider, 
among other information, all timely and responsive comments submitted 
in connection with this notice.
    The full text of petition is provided below. An electronic copy of 
the full text of the petition and the exhibits attached to it can be 
obtained from the FTC website at this web address: https://www.ftc.gov/enforcement/cases-proceedings/191-0068/dte-energy-company-matter.
    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before November 5, 
2021. Write ``DTE Petition to Reopen and Modify; Docket No. C-4691'' on 
your comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the www.regulations.gov website.
    Due to protective actions in response to the COVID-19 pandemic and 
the agency's heightened security screening, postal mail addressed to 
the Commission will be subject to delay. We strongly encourage you to 
submit your comments online through the www.regulations.gov website.
    If you prefer to file your comment on paper, write ``DTE Petition 
to Reopen and Modify; Docket No. C-4691'' on your comment and on the 
envelope, and mail your comment to the following address: Federal Trade 
Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite 
CC-5610 (Annex D), Washington, DC 20580; or deliver your comment to the 
following address: Federal Trade Commission, Office of the Secretary, 
Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex 
D), Washington, DC 20024. If possible, submit your paper comment to the 
Commission by courier or overnight service.
    Because your comment will be placed on the publicly accessible 
website at www.regulations.gov, you are solely responsible for making 
sure that your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else's Social 
Security number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. You are also 
solely responsible for making sure your comment does not include any 
sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . is privileged or confidential''--as provided by 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2)--including in particular competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. See FTC Rule 4.9(c). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted on www.regulations.gov--as legally required by FTC Rule 
4.9(b)--we cannot redact or remove your comment from that website, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under FTC Rule 4.9(c), and the General Counsel 
grants that request.
    Visit the FTC website at https://www.ftc.gov to read this document 
and the news release describing this matter. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding, as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before November 5, 2021. For information on the 
Commission's privacy policy, including routine uses permitted by the 
Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.
    Authority: 15 U.S.C. 46, 5 U.S.C. 552.

April J. Tabor,
Secretary.

Text of Petition of Respondent DTE Energy Company To Reopen and Modify 
Decision and Order

    Pursuant to Section 5(b) of the Federal Trade Commission Act, 15 
U.S.C. 45(b), and Section 2.51 of the Federal Trade Commission Rules of 
Practice, 16 CFR 2.51, Respondent DTE Energy Company (``DTE'') 
respectfully requests that the Commission reopen and modify the 
Commission's Decision and Order entered on November 21, 2019, in Docket 
No. C-4691 (the ``Order'') (attached as Exhibit 1). Specifically, 
because DTE has exited the relevant market addressed by the Order and 
because DTE's successor remains under the Order, DTE seeks to vacate 
the Order as it applies to DTE or otherwise to relieve DTE of any 
continuing obligations under the Order.
    The Commission entered the Order to address the alleged 
anticompetitive effect from the acquisition of Generation Pipeline LLC 
(``Generation'') by NEXUS Gas Transmission, LLC (``NEXUS''), at the 
time, a 50/50 joint venture between DTE and Enbridge Inc. Under the 
Order, Respondents NEXUS, DTE, and Enbridge were required, among other 
things, to remove a non-compete provision in the Purchase and Sale 
Agreement governing NEXUS's acquisition of Generation. At all times 
since the entry of the Order, DTE has complied with the Order in all 
respects.
    In November 2020, DTE notified the Commission that it intended to 
spin off its DTE Midstream business, which included DTE's non-utility 
natural gas pipeline, storage, and gathering business, to a separate 
corporate entity now known as DT Midstream, Inc. (the ``Spin-off'). The 
Spin-off was completed on July 1, 2021. As a result, DTE no longer 
holds, directly or indirectly, an interest in NEXUS, Generation, or any 
other natural gas pipeline, storage, or gathering assets or business in 
the Relevant Area.\1\ DT Midstream has succeeded to DTE's obligations 
under the Order, while NEXUS and Enbridge remain Respondents under the 
Order. Those three entities are the appropriate Respondents under the 
Order.
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    \1\ Capitalized terms not otherwise defined herein have the 
meanings ascribed to them in the Order.
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    In light of these changed conditions of fact, DTE hereby petitions 
the Commission to reopen and modify the Order to relieve DTE of all 
continuing obligations under the Order. Such relief is in the public 
interest.

[[Page 55613]]

I. Background

A. Initial Transaction

    The acquisition of Generation by NEXUS was subject to review under 
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 
15 U.S.C. 18a (the ``HSR Act''). In the course of the HSR Act review, 
Commission staff raised concerns regarding the non-compete provision in 
the Purchase and Sale Agreement, which would have prevented North Coast 
Gas Transmission LLC, the previous owner of Generation, from competing 
to provide natural gas transportation within a restricted area 
encompassing parts of Lucas, Ottawa, and Wood counties in Ohio for a 
period of three years. As a means of resolving such concerns, DTE and 
the other Respondents executed an agreement containing the Order in 
August 2019. On September 13, 2019, the Commission accepted the 
agreement containing the Order and published it for public comment.

B. The Order

    On November 21, 2019, the Commission, pursuant to procedures 
described in Section 2.34 of its Rules, 16 CFR 2.34, entered the Order. 
To address the concern that the non-compete provision would result in 
harm to competition in the natural gas pipeline transportation market 
in the Relevant Area (i.e., Lucas, Ottawa, and Wood counties in 
northwest Ohio), Paragraph II.A of the Order required the removal of 
the non-compete provision from the Purchase and Sale Agreement. On 
September 13, 2019, prior to the closing of the Generation acquisition, 
DTE and the other parties to the transaction amended the Purchase and 
Sale Agreement to eliminate the non-compete provision.
    Other provisions of the Order impose certain prior approval, 
notification, and reporting requirements on DTE and the other 
Respondents, including the requirement to obtain prior Commission 
approval before entering certain agreements restricting competition for 
natural gas pipeline transportation in the Relevant Area (] II.B), to 
provide prior notice before acquiring an interest in any natural gas 
transportation pipeline in the Relevant Area (] III), to report 
annually on compliance (] IV), and to notify the Commission regarding 
changes in any Respondent that may affect compliance (] V).

C. DTE's Compliance With the Order

    At all times since the entry of the Order, DTE has been in 
compliance with the Order. DTE filed its first annual compliance report 
in November 2020. In response, Commission staff issued a letter stating 
that no compliance action is necessary. In addition, DTE previously had 
filed several initial and interim compliance reports, including initial 
compliance reports on October 15, 2019 and November 13, 2019, each 
under Paragraph 7 of the agreement containing the Order, and an interim 
compliance report on December 20, 2019, under Paragraph IV.A.I of the 
Order.

D. DTE's Spin-Off Transaction

    First publicly announced in October 2020, the Spin-off provides 
benefits to both DTE and DT Midstream, as well as each company's 
employees and shareholders. See October 27, 2020 DTE Press Release 
(attached as Exhibit 2). Among other things, the Spin-off 
``[t]ransforms DTE [ ] into a high growth, predominately pure-play, 
regulated Michigan-based utility'' and ``[p]ositions [DT] Midstream as 
a premier independent, natural gas midstream company with assets in 
premium basins connected to major demand markets.'' Id. The Spin-off 
will ``[e]nable[ ] each business to pursue separate and distinct 
strategies led by proven boards and management teams who have skillsets 
and experience directly linked to each company's unique strategic and 
financial objectives.'' Id.
    The Spin-off was completed on July 1, 2021. On that day, DT 
Midstream, which formerly included DTE's non-utility natural gas 
pipeline, storage, and gathering business, became a publicly traded, 
standalone company. See July 1, 2021 DTE Press Release (attached as 
Exhibit 3). DT Midstream common stock trades on the New York Stock 
Exchange under the symbol DTM. Although DTE and DT Midstream have one 
common board member, this complies with Clayton Act Section 8. Under 
the Spin-off, DTE's SO-percent ownership interest in NEXUS was 
transferred to DT Midstream. See Declaration of JoAnn Chavez of DTE 
Energy Co. (attached as Exhibit 4), at 4. In addition, DT Midstream has 
certified to the Commission that it has succeeded to DTE's obligations 
under the Order and will comply therewith. See Letter from Wendy Ellis 
of DT Midstream (attached as Exhibit 5).
    The Spin-off thus leaves DTE with:
    (1) No interest (direct or indirect) in NEXUS;
    (2) no interest (direct or indirect) in Generation; and
    (3) no interest (direct or indirect) in any other natural gas 
pipeline, storage, or gathering assets or business in the Relevant 
Area.
    DTE has no plans or present intention to acquire any direct or 
indirect interest in DT Midstream, NEXUS, or Generation, or otherwise 
to enter the market for natural gas pipeline ransportation in the 
Relevant Area. See Declaration of JoAnn Ch[aacute]vez of DTE Energy 
Co., at ] 6.

II. Changed Conditions of Fact and the Public Interest Require 
Modification of the Order To Remove DTE as a Respondent

A. Changed Conditions of Fact

    Section 5(b) of the FTC Act, 15 U.S.C. 45(b), and Section 2.51(b) 
of the Commission's Rules of Practice, 16 CFR 2.51(b), provide that the 
Commission may reopen and modify an order if the respondent makes a 
satisfactory showing that changed conditions of law or fact require the 
order to be altered, modified, or set aside, or that the public 
interest so requires. The Commission has stated that ``[a] satisfactory 
showing sufficient to require reopening is made when a request 
identifies significant changes in circumstances and shows that the 
changes eliminate the need for the order or make continued application 
of it inequitable or harmful to competition.'' Eli Lilly & Co., Dkt. 
No. C-3594, Order Reopening and Setting Aside Order, at 2 (May 13, 
1999). Further, if the Commission determines that the respondent has 
made the necessary showing, the Commission must reopen the order to 
consider whether modification is required and, if so, the nature and 
extent of the modification. See Stop and Shop Cos., Inc., Dkt. No. C-
3649, Order Reopening and Modifying Order, at 5 (June 20, 1997).
    As the Commission has determined in numerous cases, the exit of a 
respondent from the relevant market eliminates the continuing need for 
the Order's remaining requirements to apply to that respondent and thus 
is a changed circumstance sufficient to support the setting aside of 
the Order as to the respondent. See, e.g., AEA Investors 2006 Fund 
L.P., Dkt. No. C-4297, Order Reopening and Modifying Final Order (Apr. 
30, 2013) (order set aside for respondent that no longer held interest 
in businesses covered by the order); Duke Energy Corp., Dkt. No. C-
3932, Order Reopening and Modifying Order (Sept. 26, 2007) (order set 
aside for respondent that had spun off midstream natural gas business 
covered by the order); Koninklijke Ahold, NV., Dkt. No. C-4027, Order 
Reopening and Modifying Order (July 10, 2007) (order set aside for 
respondent that no longer operated supermarkets in relevant areas

[[Page 55614]]

covered by the order) and Order Reopening and Modifying Order (July 21, 
2006) (same); Entergy Corp., Dkt. No. C-3998, Order Reopening and 
Setting Aside Order (July 1, 2005) (order set aside for respondent that 
had sold the business covered by the order); Union Carbide Corp., 108 
F.T.C. 184 (1986) (order set aside for respondent that had exited 
business covered by the order).
    DTE's Spin-off of DT Midstream constitutes a changed condition of 
fact that justifies the Commission to modify the Order to relieve DTE 
of its obligations under the Order, because the Spin-off leaves DTE 
with no direct or indirect interest in any natural gas pipeline, 
storage, or gathering assets or business in the Relevant Area, which 
was not the case at the time the Commission issued the Order. This 
change eliminates the basis for the Commission's concern with respect 
to DTE's presence in natural gas pipeline transportation in the 
Relevant Area.
    In particular, the Order provision requiring prior notice of any 
DTE acquisition of an interest in a natural gas transportation pipeline 
in the Relevant Area is no longer necessary. DTE no longer has an 
ownership interest in either NEXUS or DT Midstream. As a result, DTE no 
longer competes to provide natural gas transportation in the Relevant 
Area. If DTE were to enter that market, such entry by DTE would 
introduce new competition. Rather than create a need for coverage under 
the Order, such entry would be procompetitive. In contrast, DT 
Midstream, which does compete to provide natural gas transportation in 
the Relevant Area, will continue to be subject to the Order, including 
this prior notice provision.
    Similarly, the Order provision requiring DTE to obtain prior 
Commission approval before entering agreements concerning natural gas 
pipeline transportation in the Relevant Area is no longer necessary. 
The purpose of that provision is to provide the Commission with an 
opportunity to review any potentially anticompetitive agreements 
``between one or more Respondents and a Pipeline Competitor to provide 
natural gas transportation in the Relevant Area.'' Order II.B. As a 
result of the Spin-off, DTE no longer provides natural gas 
transportation in the Relevant Area. Because DTE is no longer in a 
horizontal competitive relationship with any Pipeline Competitor in the 
Relevant Area, there is no longer a need for the Commission to review 
any agreement DTE may seek to enter with such a firm. In contrast, DT 
Midstream, which does provide natural gas transportation in the 
Relevant Area, will continue to be subject to the Order, including this 
prior approval provision.
    Consistent with longstanding FTC precedent, changed conditions of 
fact warrant the removal of DTE from the Order.

B. Public Interest

    Because changed circumstances warrant reopening and modification 
here, the Commission need not consider whether removing DTE from the 
Order would serve the public interest. See, e.g., Duke Energy Corp., 
Order Reopening and Modifying Order, at 3 (``In this instance, however, 
we do not need to assess the sufficiency of Petitioners' public 
interest showing because Petitioners have made the requisite 
satisfactory showing that changed conditions of fact require the Order 
to be reopened and set aside as to Duke Energy.''); Entergy Corp., 
Order Reopening and Setting Aside Order, at 3 (same). However, should 
the Commission deem it necessary to assess the public interest in 
setting aside the Order as to DTE, such modification would serve the 
public interest.
    DTE meets the public interest requirement of Section 2.51(b) 
because, among other reasons, ``the order in whole or part is no longer 
needed.'' Requests to Reopen, 65 FR 50,636, 50,637 (Aug. 21, 2000) 
(amending 16 CFR 2.51(b)). As a result of the Spin-off, DTE no longer 
has any natural gas pipeline transportation assets or business in the 
Relevant Area. Requiring DTE's continued compliance with the Order's 
prior approval, notice, and reporting provisions therefore contributes 
nothing to the Commission's interest in protecting competition and is 
not needed to protect the public interest.
    Further, setting aside the Order as to DTE would eliminate 
unnecessary costs and burdens to DTE and the Commission during the 
remainder of the term of the Order--another eight years (through 
November 21, 2029). At the same time, because DT Midstream has 
certified to the Commission that it has succeeded to DTE's obligations 
under the Order and will comply with it, removing DTE from the Order 
would be the ``more effective or efficient way of achieving the 
purposes of the Order.'' Id. Therefore, the public interest requires 
the setting aside of the Order as to DTE.

III. Conclusion

    For these reasons, Respondent DTE respectfully requests that the 
Commission reopen and vacate the Order as it applies to DTE, or to 
otherwise modify the Order to relieve DTE of any continuing obligations 
thereunder. Such a modification is justified by changed conditions of 
fact, and is consistent with the public interest and the underlying 
purposes of the Order. The attached Declaration and other accompanying 
exhibits set forth and support the specific facts described herein and 
demonstrate why the requested modification of the Order is appropriate.

    Dated: September 21, 2021

    Respectfully submitted,

s/Mike Cowie

Mike Cowie, Greg Luib, Dechert LLP, 1900 K Street NW, Washington, DC 
20008, Attorneys for Respondent DTE Energy Company.

[FR Doc. 2021-21808 Filed 10-5-21; 8:45 am]
BILLING CODE 6750-01-P