[Federal Register: June 14, 2005 (Volume 70, Number 113)]
[Rules and Regulations]
[Page 34340-34343]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn05-12]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 35
[Docket No. RM05-15-000; Order No. 658]
Modification of Nuclear Plant Decommissioning Trust Fund
Guidelines
Issued May 27, 2005.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
amending its nuclear plant decommissioning trust fund (Fund) guidelines
to remove the requirement that the financial report that public
utilities furnish to the Commission each year must show all purchases
and sales of investments and substitute a requirement that public
utilities must include in their report a summary amount for purchases
of fund investments and a summary amount for sales of fund investments.
All other reporting requirements in the special provisions that relate
to Fund reports remain in place; e.g., records of individual purchases
and sales of investments must still be maintained even if such
individual transactions are not routinely reported. These modifications
are the result of a review conducted by the Commission's Information
Assessment Team (FIAT), identifying the Commission's current
information collections, evaluating their original purposes and current
uses, and proposing ways to reduce the reporting burden on industry
through the elimination, reduction, streamlining or reformatting of
current collections. These changes in the Commission's regulations will
reduce the reporting burden on the electric industry while
simultaneously simplifying Fund reports and making it easier for the
Commission to review them.
DATES: Effective Date: The rule will become effective upon July 14,
2005.
FOR FURTHER INFORMATION CONTACT: William O. Blome (Legal information),
Office of the General Counsel, Division of Energy Projects, Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426. (202) 502-8426.
Joseph C. Lynch (Legal information), Office of the General Counsel,
Division of Market Tariffs and Rates, Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426. (202) 502-
8497.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Pat Wood, III, Chairman; Nora Mead Brownell,
Joseph T. Kelliher, and Suedeen G. Kelly.
Introduction
1. This Final Rule deletes from the Commission's regulations the
requirement that the nuclear plant decommissioning trust fund report
that public utilities furnish to the Commission each year must show all
purchases and sales of trust fund investments. This Final Rule instead
requires that public utilities must include in their annual trust fund
report, only a summary amount for purchases of fund investments and a
summary amount for sales of fund investments. All other requirements in
the regulations pertaining to nuclear plant decommissioning trust funds
remain in place, including maintaining records of each purchase or sale
of a trust fund investment so that, as appropriate, the Commission may
review them. These changes in the Commission's nuclear plant
decommissioning trust fund regulations resulted from a review of the
Commission's regulations conducted by the Commission's Information
Assessment Team (FIAT) that was tasked to assess the Commission's
information needs. The tasks identified to meet this mission included
identifying all of the Commission's current information collections,
through forms and filing requirements (electric, hydropower, natural
gas, oil and general) and evaluating their original purposes and
current uses, and proposing ways to reduce the reporting burden on
industry through elimination, reduction, streamlining or reformatting
of current collections. The modifications to the Commission's nuclear
plant decommissioning trust fund regulations contained in this final
rule will reduce the reporting burden on the electric industry, while
simultaneously simplifying reports filed with and reviewed by the
Commission.
Background
2. On June 16, 1995, the Commission issued Order No. 580,\1\
establishing requirements for the formation, organization, and
operation of nuclear plant decommissioning trust funds (Fund) and for
Fund investments. Order No. 580 established requirements for the
organization and operation of the Fund, and for the particular
investments which the Fund may make.
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\1\ Nuclear Plant Decommissioning Trust Fund Guidelines, Order
No. 580, 60 FR 34109 (June 30, 1995), FERC Stats. & Regs.,
Regulations Preambles 1991-1996 ] 31,023 (1995), order on reh'g,
Order No. 580-A, 62 FR 33342 (June 12, 1997), FERC Stats. & Regs.,
Regulations Preambles 1996-2000 ] 31,055 (1997) (Order No. 580).
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3. Order No. 580 provided, among other things, that a Fund must be
an external Fund and that a Fund Trustee must be independent of the
public utility, have a net worth of at least $100 million, exercise the
care that a reasonable person would exercise in the same circumstances,
keep accurate and detailed records, and open the Fund to inspection and
audit.
4. Order No. 580 further provided that the Trustee may not invest
in any securities of the public utility that owns the nuclear plant or
in that public utility's affiliates, associates, successors or assigns
and may only use the Fund to decommission the nuclear plant to
[[Page 34341]]
which the Fund relates and to pay the administrative and other expenses
of the Fund, including taxes. Public utilities are to deposit all
decommissioning collections into the Fund at least quarterly and to
refund all excess collections to customers in the manner that the
Commission prescribes.
5. As relevant here, the public utility must submit to the
Commission, by March 31 of each year, one original and three conformed
copies of a financial report that shows for the previous calendar year:
(a) The activity of the Fund during the period, including amounts
received from the public utility, purchases and sales of investments,
gains and losses from investment activity, disbursements from the Fund
for decommissioning activity, and payment of Fund expenses, including
taxes; and (b) Fund assets and liabilities at the beginning and end of
the period (excluding the liability for decommissioning).
Discussion
6. The intent of this Final Rule is to clarify exactly what
information should be submitted in the annual financial report to the
Commission. Many public utilities include in their yearly reports of
Fund activity every purchase and sale transaction that the Fund engaged
in over the course of the year. This practice results in trust fund
reports that are hundreds, and sometimes thousands, of pages long. It
is difficult, and sometimes impossible, to find pertinent information.
Some of the computerized files that the public utilities are forwarding
to the Commission from their Trustees are so large that the Commission
cannot open them, or they take an inordinately long time to access.
While it is important for public utilities (and the Trustees) to
maintain complete records, it is not necessary that the Commission
routinely receive this volume of information each year for each Fund.
7. The difficulty arises from the inclusion of the phrase
``purchases and sales of investments'' in 18 CFR 35.33(d)(2). What the
Commission needs is typically not information on every individual
transaction, but summaries of purchases and sales transactions of Fund
investments. When describing the activity of the Fund during the
reporting period, public utilities with nuclear plants should only
report to the Commission the amounts that the Fund received from the
public utility, the gains and losses from overall investment activity,
disbursements from the Fund for decommissioning activity, payment of
Fund expenses, including taxes, and the Fund assets and liabilities
(excluding the liability for decommissioning) at the beginning and end
of the reporting period. This is the information that the Commission
routinely needs.
8. Accordingly, the Commission is deleting the phrase ``purchases
and sales of investments'' from 18 CFR 35.33(d)(2) and substituting the
requirement that public utilities must include in their filing a
summary amount for purchases of Fund investments and a summary amount
for sales of Fund investments.
9. The Commission is also adding an express requirement that,
consistent with section 35.32(a)(7) of the Commission's regulations,\2\
public utilities owning nuclear plants must maintain records of
individual purchases and sales transactions until after decommissioning
has been completed and any excess jurisdictional amounts have been
returned to ratepayers in a manner that the Commission determines.
Public utilities need not include these records in the yearly report
furnished to the Commission. It was understood in Order No. 580 that
the public utilities would maintain records of purchases and sales of
Fund investments.\3\ They must do this to administer the Fund
prudently. The Commission is now expressly incorporating this
requirement into its regulations. That is, the Commission will now
expressly require that public utilities continue to maintain records of
individual purchases and sales of investments. At any time, of course,
the Commission can review these records to ensure that the Fund is
conforming to the Commission's nuclear plant decommissioning trust fund
guidelines.\4\
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\2\ 18 CFR 35.32(a)(7).
\3\ See 18 CFR 35.32(a)(5).
\4\ Id.
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Information Collection Statement
10. Office of Management and Budget (OMB) regulations require OMB
to approve certain information collection requirements imposed by
agency rule.\5\ Comments are solicited on the Commission's need for
this information, whether the information will have practical utility,
the accuracy of provided burden estimates, ways to enhance the quality,
utility and clarity of the information to be collected, and any
suggested methods for minimizing respondents' burden, including the use
of automated information techniques. The information collection
requirements for this final rule are contained in FERC-516, ``Electric
Rate Filings'' (1902-0096).
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\5\ 5 CFR 1320.11.
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Estimated Annual Burden
11. This final rule clarifies the Commission's requirements
regarding the organization and operation of Funds and the investment of
Fund assets. The Commission estimates that the public reporting
requirements for the information collection requirements at issue
contained in this rule average two hours per response. Public utilities
submit this information to the Commission on an annual basis. The
Commission estimates that the number of respondents is 53. As there are
an average of two responses per year by each affected public utility (a
separate annual report is filed for each nuclear plant, and some
respondents have interests in more than one nuclear plant), the annual
burden associated with this information requirement is 212 hours. The
burden estimate includes the time required to implement the revised
standards, search existing data sources, gather and maintain the data
needed, and complete and review the information.
12. As noted immediately above, the Commission currently receives
reports from 53 companies.\6\ The Commission estimates that, under its
current rules, it takes four hours to prepare and submit a report. By
reducing the content of the report from filing each purchase and sales
transaction to filing summary amounts for purchases and sales of fund
investments, this final rule reduces the amount of time necessary to
prepare and submit a report from four to two hours. The estimates shown
in the table below reflect the total burden that the final rule will
impose.
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\6\ This is a decrease from the 72 companies estimated in Order
No. 580.
[[Page 34342]]
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Average number
Data collection Number of Number of hours of responses Total annual
respondents per year hours
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FERC-516.................................... 53 2 2 212
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Title: Nuclear Plant Decommissioning Trust Fund Guidelines (FERC-
516 [Electric Rate Filings]).
Action: Modification of collection.
OMB Control No. 1902-0096.
Respondents: Public utilities owning nuclear power plants.
Frequency of Responses: Annually.
Necessity of Information: The Commission uses the data collected in
these information requirements to carry out its regulatory
responsibilities under the Federal Power Act (FPA). The Commission's
Office of Markets, Tariffs, and Rates uses the data for evaluating
electric rate filings submitted by the industry. The Division of
Financial Audits of the Office of Market Oversight and Investigations
uses the data in assessing whether jurisdictional companies are
complying with the requirements of the Uniform System of Accounts and
the Commission's regulations.
Internal Review: The Commission has reviewed this amendment to its
regulations to eliminate the necessity of reporting annually every
individual purchase and sale of investments that the Fund has
transacted during the year, and has determined that this modification
of its regulations is necessary to facilitate its review of Fund
activities. The modification, moreover, conforms to the Commission's
plan for efficient information collection, communication, and
management within the electric utility industry. The Commission has
assured itself, by means of internal review, that there is specific,
objective support for the burden estimates associated with the
information/data retention requirements.
13. Interested parties may file comments regarding these burden
estimates or any other aspect of this information collection
requirement, including suggestions for reducing this burden, with the
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426 [Attention: Michael Miller, Office of Executive
Director, Phone: (202) 502-8415, FAX (202) 273-0873, e-mail:
michael.miller@ferc.gov]. Comments on the requirements of this rule may
also be sent to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, DC 20503 [Attention: Desk
Officer for the Federal Energy Regulatory Commission--(202) 395-4650.]
Environmental Analysis
14. 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.\7\ The
Commission has categorically excluded certain actions from this
requirement as not having a significant effect on the human
environment--such as rules relating to information gathering, analysis,
and dissemination and rules relating to electric rate filings under
sections 205 and 206 of the FPA and the establishment of just and
reasonable rates.\8\ This Final Rule involves information gathering and
analysis, and the collection and subsequent investment of money to fund
nuclear plant decommissioning affects the rates that public utilities
charge under sections 205 and 206 of the FPA, and whether those rates
are just and reasonable. Accordingly, no environmental consideration is
necessary.
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\7\ Regulations Implementing the National Environmental Policy
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs.
Regulations Preambles 1986-1990 ] 30,783 (1987).
\8\ 18 CFR 380.4(a)(5), (15).
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Regulatory Flexibility Act Certification
15. The Regulatory Flexibility Act of 1980 (RFA) requires
rulemakings to contain either a description and analysis of the effect
that the rule will have on small entities or to contain a certification
that the rule will not have a significant economic impact on a
substantial number of small entities.\9\ Most public utilities to which
the Final Rule would apply do not fall within the RFA's definition of
small entity.\10\ Consequently, the Commission certifies that this
Final Rule will not have ``a significant economic impact on a
substantial number of small entities.''
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\9\ 5 U.S.C. 601-12.
\10\ 5 U.S.C. 601(3), citing to section 3 of the Small Business
Act, 15 U.S.C. 632. Section 3 of the Small Business Act defines a
``small business concern'' as a business that is independently owned
and operated and that is not dominant in its field of operation. 15
U.S.C. 632. The Small Business Size Standards component of the North
American Industry Classification System defines a small electric
utility as one that, including its affiliates, is primarily engaged
in the generation, transmission, and/or distribution of electric
energy for sale and whose total electric output for the preceding
fiscal year did not exceed four million MWh. 13 CFR 121.201.
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Document Availability
16. 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 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 p.m. Eastern time) at 888 First Street, NE., Room 2A,
Washington, DC 20426.
17. From the Commission's Home Page on the Internet, this
information is available in its eLibrary. The full text of this
document is available in the eLibrary both in PDF and Microsoft Word
format for viewing, printing, and downloading. To access this document
in eLibrary, type the docket number excluding the last three digits of
this document in the docket number field.
18. User assistance is available for eLibrary and the Commission's
Web site during normal business hours. For assistance contact FERC
Online Support at FERCOnlineSupport@FERC.gov or toll-free at (800) 208-
3676, or for TTY, contact (202) 502-8659. Or you may e-mail the Public
Reference Room at public.referenceroom@ferc.gov.
Administrative Findings and Effective Date
19. The Administrative Procedure Act (APA) \11\ requires
rulemakings to be published in the Federal Register. The APA also
mandates that an opportunity for comment be provided when an agency
promulgates regulations. However, notice and comment are not required
under the APA when the agency for good cause finds that notice and
public procedure thereon are impracticable, unnecessary, or contrary to
the public interest.\12\ The Commission finds that notice and comment
are unnecessary to this rulemaking. As explained above, the Commission
is merely clarifying the proper scope of an annual report required by
its regulations regarding the reporting of information on nuclear
[[Page 34343]]
plant trust funds. This clarification does not change existing law or
policy. It substantially reduces a reporting requirement and reduces
the reporting burden on the electric industry. Accordingly, this rule
is effective 30 days following publication in the Federal Register.
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\11\ 5 U.S.C. 551-559.
\12\ 5 U.S.C. 553b(3)(B).
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Congressional Notification
20. The Commission has determined, with the concurrence of the
Administrator, Office of Information and Regulatory Affairs of the
Office of Management and Budget, that this rule is not a ``major rule''
within the meaning of section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996.\13\ The Commission will submit this
Final Rule to both houses of Congress and the General Accounting
Office.\14\
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\13\ 5 U.S.C. 804(2).
\14\ 5 U.S.C. 801(a)(1)(A).
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List of Subjects in 18 CFR Part 35
Electric power rates, Electric utilities, Reporting and
recordkeeping requirements.
By the Commission.
Linda Mitry,
Deputy Secretary.
0
In consideration of the foregoing, the Commission amends Part 35,
Chapter I, Title 18, Code of Federal Regulations, as follows:
PART 35--FILING OF RATE SCHEDULES AND TARIFFS
0
1.The authority citation for Part 35 continues to read as follows:
Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.
0
2. Section 35.33 is amended by revising paragraph (d)(2) and adding
paragraph (d)(4) to read as follows:
Sec. 35.33 Specific provisions.
* * * * *
(d) * * *
(2) Activity of the Fund during the period, including amounts
received from the utility, a summary amount for purchases of fund
investments and a summary amount for sales of fund investments, gains
and losses from investment activity, disbursements from the Fund for
decommissioning activity and payment of Fund expenses, including taxes;
and
* * * * *
(4) Public utilities owning nuclear plants must maintain records of
individual purchase and sales transactions until after decommissioning
has been completed and any excess jurisdictional amounts have been
returned to ratepayers in a manner that the Commission determines. The
public utility need not include these records in the financial report
that it furnishes to the Commission by March 31 of each year.
* * * * *
[FR Doc. 05-11532 Filed 6-13-05; 8:45 am]
BILLING CODE 6717-01-U