79–010 

Calendar No. 420 

115TH CONGRESS REPORT " ! SENATE 2d Session 115–253 

AMENDING SECTION 203 OF THE FEDERAL POWER ACT 

MAY 21, 2018.—Ordered to be printed 

Ms. MURKOWSKI, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany H.R. 1109] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (H.R. 1109) to amend section 203 of the Federal 

Power Act, having considered the same, reports favorably thereon 

with an amendment in the nature of a substitute, and recommends 

that the bill, as amended, do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. CLARIFICATION OF FACILITY MERGER AUTHORIZATION. 

Section 203(a)(1) of the Federal Power Act (16 U.S.C. 824b(a)(1)) is amended by 

striking subparagraph (B) and inserting the following: 

‘‘(B) merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, or any part thereof, with the facilities of any other 

person, or any part thereof, that are subject to the jurisdiction of the Commission and have a value in excess of $10,000,000, by any means whatsoever;’’. 

SEC. 2. NOTIFICATION FOR CERTAIN TRANSACTIONS. 

Section 203(a) of the Federal Power Act (16 U.S.C. 824b(a)) is amended by adding 

at the end the following new paragraph: 

‘‘(7)(A) Not later than 180 days after the date of enactment of this paragraph, 

the Commission shall promulgate a rule requiring any public utility that is 

seeking to merge or consolidate, directly or indirectly, its facilities subject to the 

jurisdiction of the Commission, or any part thereof, with those of any other person, to notify the Commission of such transaction not later than 30 days after 

the date on which the transaction is consummated if— 

‘‘(i) the facilities, or any part thereof, to be acquired are of a value in ex- cess of $1,000,000; and 

‘‘(ii) such public utility is not required to secure an order of the Commission under paragraph (1)(B). 

‘‘(B) In establishing any notification requirement under subparagraph (A), the 

Commission shall, to the maximum extent practicable, minimize the paperwork 

burden resulting from the collection of information.’’. 


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SEC. 3. EFFECTIVE DATE. 

The amendment made by section 1 shall take effect 180 days after the date of 

enactment of this Act. 

SEC. 4. FEDERAL ENERGY REGULATORY COMMISSION REPORT. 

(a) IN GENERAL.—Not later than 2 years after the date of enactment of this Act, 

the Federal Energy Regulatory Commission shall submit to Congress a report that 

assesses the effects of the amendment made by section 1. 

(b) REQUIREMENTS.—In preparing the report under subsection (a), the Federal Energy Regulatory Commission shall— 

(1) take into account any information collected under paragraph (7) of section 

203(a) of the Federal Power Act (16 U.S.C. 824b(a)) (as added by section 2); and 

(2) provide for public notice and comment with respect to the report. 

PURPOSE

The purpose of H.R. 1109 is to amend section 203 of the Federal 

Power Act (FPA) to correct the misinterpretation by the Federal 

Energy Regulatory Commission (FERC or Commission) of the 

merge or consolidate clause within that section of the Act, and to 

thereby reduce the compliance burden of certain transactions valued under $10 million, including significant legal and regulatory 

costs which are collected from customers. 

BACKGROUND AND NEED

Between 1935 and 2005, section 203 of the FPA provided that no 

public utility could dispose or merge assets in excess of $50,000 in 

value without first securing an order of the Commission authorizing it to do so. (See 16 U.S.C. 824d note.) 

The Energy Policy Act of 2005 (EPAct ’05, Public Law 109–58) 

amended the FPA to raise the threshold for review of certain transactions from the $50,000 level established in 1935 to $10 million. 

Section 1289 of EPAct ’05 appeared to subdivide the Commission’s 

authority to review merger or disposal of assets into four subsections. Three of these subsections explicitly identified a threshold 

of $10 million, while also preserving the existing structure of the 

FPA. However, given that the existing structure of the Act was 

used in the 2005 amendment, the words ‘‘$10 million’’ did not appear in the fourth subsection. Based on that absence, FERC interpreted that one subsection as eliminating the $50,000 exception altogether, so that now FERC would require itself to review every 

covered transaction in that subsection, effectively reducing the 

transaction threshold to zero dollars, when the threshold had been 

$50,000 since 1935. Transactions Subject to FPA Section 203, 113 

FERC ¶ 61,315 at P 32 (2005) (Order No. 669). 

FERC reasoned that ‘‘where Congress includes particular language in one section of a statute but omits it in another section of 

the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.’’ 

Order No. 669 at P 32 (quoting Russello v. U.S., 464 U.S. 16, 23 

(1983)). FERC did not address the canon of statutory construction 

providing that when Congress reenacts provisions of an existing 

law in an amendment to that law, the reenacted provisions are considered a continuation of the previous law as they were previously 

understood and interpreted. See 1A N. Singer, Statutes and Statutory Construction § 22.33 at 392–396 (6th ed. 2002 rev.) (‘‘Provisions of the original act or section which are repeated in the body 


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of the amendment, either in the same or equivalent words, are considered a continuation of the original law.’’). 

In 1935, the original section of the Act provided that: 

‘‘No public utility shall sell, lease, or otherwise dispose 

of the whole of its facilities subject to the jurisdiction of 

the Commission, or any part thereof of a value in excess 

of $50,000, or by any means whatsoever, directly or indirectly, merge or consolidate such facilities or any part 

thereof with those of any other person, or purchase, acquire, or take any security of any other public utility, without first having secured an order of the Commission authorizing it to do so.’’ 

Breaking the sentence down structurally, this sentence provided 

that: 

‘‘No public utility shall [—] 

[1] sell, lease, or otherwise dispose of the whole of its facilities subject to the jurisdiction of the Commission, or 

any part thereof of a value in excess of $50,000, or 

[2] by any means whatsoever, directly or indirectly, 

merge or consolidate such facilities or any part thereof 

with those of any other person, or 

[3] purchase, acquire, or take any security of any other 

public utility, 

[—]without first having secured an order of the Commission authorizing it to do so.’’ 

Prior to the creation of FERC in 1977, the Federal Power Commission (FPC) administered this part of the FPA, stumbling over certain aspects of this sentence. The FPC’s principal difficulty was 

over whether it applied to local distribution facilities. ‘‘Between 

1944 and 1962, . . . the Commission no less than five times shifted 

its position as to the applicability of the ‘merge or consolidate’ 

clause to acquisitions of non-jurisdictional facilities.’’ Duke Power 

Co. v. FPC, 401 F.2d 930, 951 (D.C. Cir. 1968). 

Nevertheless, the FPC does not appear to have stumbled over the 

absence of a dollar amount in the ‘‘merge or consolidate’’ clause. Although the codification of its rules, which first appeared in the Federal Register in 1947, said nothing about a dollar amount, the early 

case law shows that the FPC was already applying the $50,000 

threshold in the sell, lease, or otherwise dispose clause to the 

merge or consolidate clause even before the 1947 rule codification. 

See California Electric Power Co., 4 FPC 601, 602 (May 31, 1944); 

Idaho Power Co. and West Coast Power Co., 4 FPC 663, 664 (July 

26, 1944); Montana-Dakota Utilities Co., 4 FPC 1072, 1074 (Oct. 

17, 1945); regarding codification of its rules, see 12 Fed. Reg. 8495 

(Dec. 19, 1947). 

The FPC eventually amended its rules in 1963 to reflect what 

was by then a decades-old interpretation. Section 33.1(2) of the 

FPC’s rules was amended to say that the FPC authority under section 203 extended to ‘‘The merger or consolidation, directly or indirectly of the facilities of a public utility with those of any other person having a value in excess of $50,000.’’ 28 Fed. Reg. 2900 (Mar. 

23, 1963). 


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The D.C. Circuit eventually addressed the question of whether 

the merge or consolidate clause applied to non-jurisdictional local 

distribution facilities, and in doing so, it confirmed that the FPC 

had correctly interpreted the $50,000 threshold in that clause. In 

1966, the FPC held that Duke Power’s acquisition of Clemson University’s distribution facilities, since they had a value of more than 

$50,000, fell within the Commission’s section 203 jurisdiction. The 

D.C. Circuit rejected that view of FPC’s authority. Duke Power Co. 

v. FPC, 401 F.2d 930 (D.C. Cir. 1968). The court said that the text 

and legislative history of the FPA showed that the FPC’s merger 

authority did not extend to non-jurisdictional facilities. While the 

question of the dollar threshold never came up, the court addressed 

the language in the merge or consolidate clause. 

In particular, the court emphasized that the clause speaks of the 

merger or consolidation of ‘‘such facilities or any part thereof with 

those of any other person.’’ 401 F.2d at 933. The FPC had no difficulty reading ‘‘such facilities’’ as referring to the acquiring utility’s 

‘‘facilities subject to the jurisdiction of the Commission . . . . ’’ 

‘‘[T]he Commission concede[d] that the meaning of ‘such facilities’ 

is crystallized by their grammatical antecedent, ‘facilities subject to 

the jurisdiction of the Commission’.’’ Id. at 940. The dispute in the 

case was whether ‘‘the latter phrase also fixes the meaning of 

‘those’.’’ Id. ‘‘Duke argue[d] that the antecedent of ‘those’ is the 

phrase, ‘such facilities,’ language in turn referring to ‘facilities subject to the jurisdiction of the Commission,’ and point[ed] out that 

Clemson’s [local] distribution system fell outside the latter category. The Commission, on the other hand, would have us ascribe 

to the phrase ‘those (facilities) of any other person’ sufficient 

breadth to include both jurisdictional and nonjurisdictional facilities.’’ Id. at 933–934. The D.C. Circuit agreed with Duke rather 

than the FPC: ‘‘those’’ facilities referred to ‘‘such facilities,’’ which 

referred to ‘‘facilities subject to the jurisdiction of the Commission,’’ 

and, we may infer by extension, ‘‘or any part thereof of a value in 

excess of $50,000.’’ 

The FPC amended its rules in 1970 to reflect the court’s decision. 

Section 203, the FPC now said, extends to ‘‘The merger or consolidation, directly or indirectly of the facilities subject to the Commission’s jurisdiction with those of any other person having a value in 

excess of $50,000.’’ 62 Fed. Reg. 5321 (Mar. 31, 1970). 

The first sentence of section 203 was then amended in section 

1289 of the Energy Policy Act of 2005. The purpose of the amendment was to raise the dollar threshold from $50,000 to $10 million 

and to add to the existing three clauses a fourth covering the ‘‘purchase, lease, or’’ other acquisition of an existing generation facility 

‘‘that has a value in excess of $10,000,000’’ that is subject to 

FERC’s jurisdiction. Congress thus adopted a complete substitute 

to section 203(a) to add more structure and additional paragraphs. 

But the merge or consolidate clause itself, was reenacted, word-forword, except for the addition of a new subparagraph designation, 

and the reordering of the ‘‘directly or indirectly’’ and the ‘‘by any 

means whatsoever’’ subclauses. The critical phrases ‘‘such facilities’’ 

and ‘‘those of any other person,’’ which the FPC and FERC had 

long interpreted as referring to and incorporating by reference the 

dollar threshold in the sell, lease, or otherwise dispose clause into 

the merge or consolidate clause, were not changed. 


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This legislation clarifies the amendments made in the EPAct ’05, 

by explicitly providing that the threshold for Commission authority 

begins at $10 million for disposals or mergers of utility assets. In 

addition, this legislation adds a notification requirement for certain 

merger or consolidation transactions in excess of a $1 million 

threshold. 

LEGISLATIVE HISTORY

H.R. 1109 was introduced on February 16, 2017, by Representatives Walberg, Dingell, Hudson, McNerney, and Mullin in the 

House of Representatives and referred to the Energy and Commerce Committee. On June 7, 2017, the Energy and Commerce 

Committee reported the bill by unanimous consent, and on June 

12, 2017, H.R. 1109 passed the House by voice vote. On June 13, 

2017, the Senate received it and referred it to the Committee on 

Energy and Natural Resources. 

On September 26, 2017, similar legislation, S. 1860, was introduced by Senators Inhofe and Heinrich, which was referred to the 

Committee on Energy and Natural Resources. The Senate Subcommittee on Energy held a hearing on H.R. 1109 and S. 1860 on 

October 3, 2017. 

The Committee on Energy and Natural Resources met in open 

business session on March 8, 2018, and ordered H.R. 1109 favorably reported, as amended. 

COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in 

open business session on March 8, 2018, by a majority voice vote 

of a quorum present, recommends that the Senate pass H.R. 1109, 

if amended as described herein. 

COMMITTEE AMENDMENT

During its consideration of H.R. 1109, the Committee adopted an 

amendment in the nature of a substitute. The substitute amendment makes clear that the threshold for Commission authority begins at $10 million for disposals or mergers of utility assets. In addition, the substitute amendment adds a notification requirement 

for certain merger or consolidation transactions in excess of a $1 

million threshold. The amendment is further described in the section-by-section analysis. 

SECTION-BY-SECTION ANALYSIS

Section 1. Clarification of facility merger authorization 

Section 1 amends section 203(a)(1)(B) of the FPA to ensure that 

the threshold is for facilities to be acquired having a value in excess of $10 million. 

Section 2. Notification for certain transactions 

Section 2 establishes a notification requirement for merger or 

consolidation transactions in section 203(a)(1)(B) of the Act that exceed a $1 million threshold. For those transactions exceeding $1 

million, but less than $10 million, this section provides that the 


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public utility is not required to seek an order of the Commission 

under section 203(a)(1)(B) of the Act. 

Section 3. Effective date 

Section 3 provides that the amendment made by section 1 shall 

take effect 180 days after the date of enactment. 

Section 4. Federal Energy Regulatory Commission report 

Section 4 requires FERC to submit a report to Congress on the 

effects of the amendment made by section 1 within two years of enactment. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of the costs of this measure has been provided by the Congressional Budget Office: 

Under the Federal Power Act, the Federal Energy Regulatory 

Commission (FERC) oversees and regulates interstate transmission 

of electricity, natural gas, oil, and a variety of other energy-related 

activities. Under section 203 of that act, public utilities subject to 

its provisions must seek FERC’s approval before engaging in certain transactions, including corporate mergers and consolidations of 

facilities. Currently, FERC must review all such mergers and consolidations. H.R. 1109 would amend that section to specify that 

only mergers and consolidations involving facilities valued at more 

than $10 million would require FERC’s approval. The legislation 

also would require FERC to report to the Congress, within two 

years of enactment, on the subsequent effects of that proposed 

change. 

CBO estimates that implementing H.R. 1109 would have no significant net effect on the federal budget. Using information from 

FERC about average annual costs to review mergers and consolidations under current law, CBO estimates that specifying a minimum 

threshold for such reviews would reduce the agency’s administrative costs by less than $500,000 annually. However, because FERC 

recovers 100 percent of its costs through user fees, any change in 

that agency’s costs (which are controlled through annual appropriation acts) would be offset by an equal change in fees that the commission charges, resulting in no net change in federal spending. 

Enacting H.R. 1109 would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. CBO estimates 

that enacting H.R. 1109 would not increase net direct spending or 

on-budget deficits in any of the four consecutive 10-year periods beginning in 2028. 

H.R. 1109 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

On June 12, 2017, CBO transmitted a cost estimate for H.R. 

1109 as ordered reported by the House Committee on Energy and 

Commerce on June 7, 2017. The two versions of the legislation are 

similar, and the estimated budgetary effects are the same. 

The CBO staff contact for this estimate is Megan Carroll. The estimate was approved by H. Samuel Papenfuss, Deputy Assistant 

Director for Budget Analysis. 


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REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

H.R. 1109. The bill is not a regulatory measure in the sense of imposing Government-established standards or significant economic 

responsibilities on private individuals and businesses. 

No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little, if any, additional paperwork would result from the enactment of H.R. 1109, as ordered reported. 

CONGRESSIONALLY DIRECTED SPENDING

H.R. 1109, as ordered reported, does not contain any congressionally directed spending items, limited tax benefits, or limited tariff 

benefits as defined in rule XLIV of the Standing Rules of the Senate. 

EXECUTIVE COMMUNICATIONS

The testimony provided by the Federal Energy and Regulatory 

Commission at the October 3, 2017, hearing on H.R. 1109 follows: 

TESTIMONY OF JAMES DANLY, GENERAL COUNSEL, FEDERAL

ENERGY REGULATORY COMMISSION, BEFORE THE UNITED

STATES SENATE COMMITTEE ON ENERGY AND NATURAL

RESOURCES, SUBCOMMITTEE ON ENERGY

S. 1860 (the ‘‘Parity Across Reviews Act’’ or the ‘‘PARs Act’’ 

and H.R. 1109) 

The bills are identical and would add a minimum dollar 

value to Subsection 203(a)(1)(B) of the FPA such that public utilities would only need prior Commission approval to 

‘‘merge or consolidate’’ (that is, to acquire) facilities subject 

to the Commission’s jurisdiction if the facilities have a 

value in excess of $10 million. In other words, mergers or 

acquisitions of facilities with a value less than that 

amount would not need Commission approval. 

The bills would align this provision of the FPA with the 

other three subsections of Section 203(a)(1). Subsections 

(A), (C), and (D) only require Commission approval if the 

transaction at issue exceeds $10 million in value. Subsection 203(a)(1)(A) requires Commission approval before a 

public utility sells, leases, or otherwise disposes of facilities worth more than $10 million. Subsection 203(a)(1)(C) 

imposes the same obligation for the acquisition of more 

than $10 million in securities of another public utility. Finally, Subsection 203(a)(1)(D) mandates Commission approval before the acquisition of a generating facility worth 

more than $10 million. 

While the current statute is the result of the Energy Policy Act of 2005, the requirement for merger approval dates 

back to the original 1935 Federal Power Act. The prior 

version of Section 203 combined the current statutory 

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section that included a $50,000 threshold. Under this statutory language, the Commission had issued regulations 

imposing a $50,000 threshold exception for all of the provisions. After the 2005 legislation that subdivided the section, added what is now in Subsection (D), and imposed 

the three $10 million thresholds, the Commission interpreted the statute as precluding the Commission from applying a $10 million dollar threshold to the ‘‘merge and 

consolidate’’ clause. As a result, the requirement for approval now applies even to acquisitions of jurisdictional facilities that are less than $50,000. Adding a $10 million 

threshold to the ‘‘merge and consolidate’’ clause in Subsection 203(a)(1)(B) would, to some extent, return the statute to the situation that existed prior to the 2005 legislation where the same minimum threshold applies equally to 

every subsection of the statute. In my view, the proposal to add a $10 million threshold 

to Subsection 203(a)(1)(B) of the FPA would ease the regulatory burden on industry without impeding the Commission’s regulatory responsibilities. Transactions below the 

proposed threshold are unlikely to impose a significant 

negative impact on competition or the rates of utility customers. 

Previously, Commission staff has noted that one potential concern involves serial mergers. That is, under the 

proposed bill, the Commission would no longer have the 

authority to review and approve mergers and acquisitions 

valued at less than $10 million even in situations where 

the transaction took place as one of a series of transactions 

that exceeded the limit in total. I believe that the Commission would have tools to protect consumers and the public 

interest if such circumstances arose. 

For one, the proposed bills would add a new Subsection 

203(a)(7)(A) to establish an additional reporting requirement on certain transactions under the $10 million threshold. Specifically, a public utility undertaking a merger or 

acquisition where the facilities being acquired have a value 

in excess of $1 million but less than $10 million would 

have to notify the Commission of the transaction 30 days 

after consummation. This after-the fact reporting would be 

for informational purposes only—that is, the Commission 

would not take action as to any of these transactions. However, the notifications would provide the Commission and 

the public with greater transparency as to these types of 

transactions. 

Moreover, I believe that the Commission has tools under 

its existing statutory framework. For example, if an entity 

with market-based rates obtained the opportunity to exercise market power as a result of such transactions, the 

Commission could limit or eliminate its ability to engage 

in transactions at market-based rates. Additionally, the 

Commission has a range of market power mitigation measures that limit market power within the organized wholesale electric markets. Finally, if the exercise of market 

power involves market manipulation or violation of a ComVerDate Sep 11 2014 03:12 May 23, 2018 Jkt 079010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6969 E:\HR\OC\SR253.XXX SR253

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mission rule, regulation, order or tariff provision, the Commission can bring an enforcement action. 

One concern I should note about the proposed bills is the placement of the $10 million threshold clause in revised 

Subsection 203(a)(1)(B). As revised, Subsection 203(a)(1)(B) 

would read: ‘‘No public utility shall, without first having 

secured an order of the Commission authorizing it to do so 

. . . (B) merge or consolidate, directly or indirectly, such 

facilities or any part thereof such facilities, or any part 

thereof, of a value in excess of [$10 million] with those of 

any other person, by any means whatsoever.’’ There is 

some risk that the statutory language could be read as 

modifying the wrong set of facilities and imposing the $10 

million threshold on the value of the pre-existing assets of 

the acquiring public utility rather than on the assets that 

are being acquired (that is, the assets merged or consolidated with the pre-existing assets of the acquiring public 

utility). Placing the $10 million threshold language after 

the ‘‘any other person’’ may address this concern. Proposed 

Subsection 203(a)(7)(A) presents a similar issue. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the original 

bill, as reported, are shown as follows (existing law proposed to be 

omitted is enclosed in black brackets, new matter is printed in 

italic, existing law in which no change is proposed is shown in 

roman): 

FEDERAL POWER ACT 

The Act of June 10, 1920, Chapter 285, as Amended 

* * * * * * * 

PART II—REGULATION OF ELECTRIC UTILITY 

COMPANIES ENGAGED IN INTERSTATE COMMERCE 

* * * * * * * 

DISPOSITION OF PROPERTY; CONSOLIDATION; PURCHASE 

OF SECURITIES 

SEC. 203. (a)(1) No public utility shall, without first having secured an order of the Commission authorizing it to do so— 

(A) sell, lease, or otherwise dispose of the whole of its facilities subject to the jurisdiction of the Commission, or any part 

thereof of a value in excess of $10,000,000; 

ø(B) merge or consolidate, directly or indirectly, such facilities or any part thereof with those of any other person, by any 

means whatsoever;¿ (B) merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the Commission, 

or any part thereof, with the facilities of any other person, or 

any part thereof, that are subject to the jurisdiction of the Commission and have a value in excess of $10,000,000, by any 

means whatsoever; 


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(C) purchase, acquire, or take any security with a value in excess of $10,000,000 of any other public utility; or 

(D) purchase, lease, or otherwise acquire an existing generation facility— (i) that has a value in excess of $10,000,000; and 

(ii) that is used for interstate wholesale sales and over 

which the Commission has jurisdiction for ratemaking purposes. 

* * * * * * * 

(6) For purposes of this subsection, the terms ‘‘associate company’’, ‘‘holding company’’, and ‘‘holding company system’’ have 

the meaning given those terms in the Public Utility Holding 

Company Act of 2005. 

(7)(A) Not later than 180 days after the date of enactment of 

this paragraph, the Commission shall promulgate a rule requiring any public utility that is seeking to merge or consolidate, directly or indirectly, its facilities subject to the jurisdiction of the 

Commission, or any part thereof, with those of any other person, to notify the Commission of such transaction not later than 

30 days after the date on which the transaction is consummated 

if— 

(i) the facilities, or any part thereof, to be acquired are 

of a value in excess of $1,000,000; and 

(ii) such public utility is not required to secure an order 

of the Commission under paragraph (1)(B). 

(B) In establishing any notification requirement under subparagraph (A), the Commission shall, to the maximum extent 

practicable, minimize the paperwork burden resulting from the 

collection of information. 

* * * * * * * 

Æ 


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