[Federal Register Volume 70, Number 113 (Tuesday, June 14, 2005)]
[Rules and Regulations]
[Pages 34340-34343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-11532]


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

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.

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

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \2\ 18 CFR 35.32(a)(7).
    \3\ See 18 CFR 35.32(a)(5).
    \4\ Id.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    \5\ 5 CFR 1320.11.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \6\ This is a decrease from the 72 companies estimated in Order 
No. 580.

[[Page 34342]]



----------------------------------------------------------------------------------------------------------------
                                                                                Average  number
               Data collection                   Number of     Number of hours   of  responses     Total annual
                                                respondents                         per year          hours
----------------------------------------------------------------------------------------------------------------
FERC-516....................................              53                2                2              212
----------------------------------------------------------------------------------------------------------------

    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: 
[email protected]]. 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.''
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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 [email protected] or toll-free at (800) 208-
3676, or for TTY, contact (202) 502-8659. Or you may e-mail the Public 
Reference Room at [email protected].

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.
---------------------------------------------------------------------------

    \11\ 5 U.S.C. 551-559.
    \12\ 5 U.S.C. 553b(3)(B).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \13\ 5 U.S.C. 804(2).
    \14\ 5 U.S.C. 801(a)(1)(A).
---------------------------------------------------------------------------

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