[Federal Register: July 31, 2007 (Volume 72, Number 146)]
[Notices]
[Page 41744-41747]
[DOCID:fr31jy07-79]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PL07-2-000]

Composition of Proxy Groups for Determining Gas and Oil Pipeline
Return on Equity

July 19, 2007.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Proposed Policy Statement.

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SUMMARY: The Federal Energy Regulatory Commission is proposing to
modify its current policy regarding the composition of proxy groups
used to determine return on equity for natural gas and oil pipelines
under the Discounted Cash Flow Methodology. Under the proposed policy
statement, the Commission would permit Master Limited Partnerships
(MLPs) to be included in the proxy group, subject to certain
conditions. The Commission proposes to leave to individual cases the
determination of the specific MLPs to be included in the proxy group
used to determine return on equity in that case.

DATES: Initial comments are due August 30, 2007. Reply comments are due
August 30, 2007.

ADDRESSES: You may submit comments, identified in Docket No. PL07-2-
000, by any of the following methods:
    1. Agency Web Site: http://www.ferc.gov. The Commission accepts

most standard word processing formats and commentors may attach
additional filed with supporting information in certain other file
formats. Commentors filing electronically do not need to make a paper
filing.
    2. Mail/Hand Delivery: Commentors unable to file comments
electronically must mail or hand-deliver an original and 14 copies of
their comments to: Federal Energy Regulatory Commission, Office of the
Secretary, 888 First Street, NE., Washington, DC 20426.

FOR FURTHER INFORMATION CONTACT: John M. Robinson, Office of the
General Counsel, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426,<PHONE_NUMBER>,
<EMAIL_ADDRESS>

Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G.
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.

    1. In this proposed Policy Statement, the Commission is proposing
to update its standards concerning the composition of the proxy groups
used to decide the return on equity (ROE) of natural gas and oil
pipelines. Firms engaged in the pipeline business are increasingly
organized as master limited partnerships (MLPs). Therefore, the
Commission proposes to modify its current policy regarding the
composition of proxy groups to allow MLPs to be included in the proxy
group. This proposed Policy Statement explains the standards that the
Commission would require to be met in order for an MLP to be included
in the proxy group. The Commission proposes to apply its final Policy
Statement to all gas and oil pipeline rate cases that have not
completed the hearing phase as of the date the Commission issues its
final Policy Statement. The Commission intends to decide on a case-by-
case basis whether to apply the final Policy Statement in cases that
have completed the hearing phase. Finally, the Commission is requesting
comments on this proposed Policy Statement. Initial comments are due 30
days after publication of this order in the Federal Register, with
reply comments due 50 days after publication in the Federal Register.

I. Background

    2. Since the 1980s, the Commission has used a Discounted Cash Flow
(DCF) model to develop a range of returns earned on investments in
companies with corresponding risks for determining the ROE for natural
gas and oil pipelines. The DCF model was originally developed as a
method for investors to estimate the value of securities, including
common stocks. It is based on ``the premise that a stock is worth the
present value of its future cash flows, discounted at a market rate
commensurate with the stock's risk.'' \1\ Unlike investors, the
Commission uses the DCF model to determine the ROE to be included in
the pipeline's rates, rather than to estimate a stock's value.
Therefore, the Commission solves the DCF formula for the discount rate,
which represents the rate of return that an investor requires in order
to invest in a firm. Under the resulting DCF formula, ROE equals
current dividend yield (dividends divided by share price) plus the
projected future growth rate of dividends.
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    \1\ Ozark Gas Transmission System, 68 FERC ] 61,032 at 61,104,
n. 16 (1994).
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    3. The Commission uses a two-step procedure for determining the
constant growth of dividends: averaging short-term and long-term growth
estimates.\2\ Security analysts' five-year forecasts for each company
in the proxy group, as published by Institutional Brokers Estimate
System (IBES), are used for determining growth for the short term;
long-term growth is based on forecasts of long-term growth of the
economy as a whole, as reflected in the Gross Domestic Product. The
short-term forecast receives a \2/3\ weighting and the long-term
forecast receives a \1/3\ weighting in calculating the growth rate in
the DCF model.\3\
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    \2\ Northwest Pipeline Co., 71 FERC ] 61,309 at 61,989-92 (1995)
(Opinion No. 396), 76 FERC ] 61,068 (1996) (Opinion No. 396-A), 79
FERC ] 61,309 (1997) (Opinion No. 396-B), reh'g denied, 81 FERC ]
61,036 (1997) (Opinion No. 396-C); Williston Basin Interstate
Pipeline Co., 79 FERC ] 61,311, order on reh'g, 81 FERC ] 61,033
(1997), aff'd in relevant part, Williston Basin Interstate Pipeline
Co., 165 F.3d 54 (D.C. Cir. 1999) (Williston Basin).
    \3\ The Commission presumes that existing pipelines fall within
a broad range of average risk, and thus generally sets pipelines'
return at the median of the range. Transcontinental Gas Pipe Line
Corp., 84 FERC ] 61,084 at 61,423-4 (1998) Opinion No. 414-A, reh'g,
85 FERC ] 61,323 (1998) (Opinion No. 414-B), aff'd North Carolina
Utilities Commission v. FERC, 340 U.S. App. D.C. 183 (D.C. Cir)
(unpublished opinion).
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    4. Most gas pipelines are wholly-owned subsidiaries and their
common stock is not publicly traded, and this is also true for some
jurisdictional oil pipelines. Therefore, the Commission uses a proxy
group of firms with corresponding risks to set a range of reasonable
returns for both natural gas and oil pipelines. The Commission then
assigns the pipeline a rate within that range or zone, to reflect
specific risks of that pipeline as compared to the proxy group
companies.\4\
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    \4\ Williston Basin at 57 (citation omitted).
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    5. The Commission historically required that each company included
in the proxy group satisfy the following three standards.\5\ First, the
company's stock must be publicly traded. Second, the company must be
recognized as a natural gas or oil pipeline company and its stock must
be recognized and tracked by an investment information service such as
Value Line. Third, pipeline operations must constitute a high
proportion of the company's business. Until the Commission's 2003
decision in Williston Basin Interstate Pipeline Co.,\6\ the third
standard could only be satisfied if a company's pipeline business
accounted for, on average, at least 50 percent of a company's assets or
operating income over the most recent three-year period.
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    \5\ Transcontinental Gas Pipe Line Corp., 90 FERC ] 61,279 at
61,933 (2000).
    \6 \ Williston Basin Interstate Pipeline Company, 104 FERC ]
61,036 at P 35, n. 46 (2003).

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    6. As a result of mergers, acquisitions, and other changes in the
natural gas industry, fewer and fewer interstate natural gas companies
have satisfied the third requirement. Thus, in Williston, the
Commission relaxed this requirement for the natural gas proxy group.
Instead, the Commission approved a pipeline's proposal to use a proxy
group based on the corporations listed in the Value Line Investment
Survey's list of diversified natural gas firms that own Commission-
regulated natural gas pipelines, without regard to what portion of the
company's business comprises pipeline operations.
    7. In HIOS \7\ and Kern River, the only fully litigated section 4
rate cases decided since Williston, the Commission again drew the proxy
group companies from the same Value Line list. When those cases were
litigated, there were six such companies: Kinder Morgan Inc., the
Williams Companies (Williams), El Paso Natural Gas Company (El Paso),
Equitable Resources, Inc., Questar Corporation, and National Fuel Gas
Corporation. The Commission excluded Williams and El Paso on the ground
that their financial difficulties had lowered their ROEs to a level
only slightly above the level of public utility debt, and the
Commission stated that investors cannot be expected to purchase stock
if lower risk debt has essentially the same return. This left a four-
company proxy group, three of whose members derived more revenue from
the distribution business, rather than the pipeline business. In Kern
River, the Commission adjusted the pipeline's return on equity 50 basis
points above the median in order to account for the generally higher
risk profile of natural gas pipeline operations as compared to
distribution operations.
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    \7\ High Island Offshore System, L.L.C., 110 FERC ] 61,043,
reh'g denied, 112 FERC ] 61,050 (2005), appeal pending.
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    8. In both Kern River and HIOS, the Commission rejected pipeline
proposals to include MLPs in the proxy group. The pipelines contended
that MLPs have a much higher percentage of their business devoted to
pipeline operations, than most of the corporations that the Commission
currently includes in the proxy group.
    9. Unlike corporations, MLPs generally distribute most available
cash flow to the general and limited partners in the form of quarterly
distributions. Most MLP agreements define ``available cash flow'' as
(1) Net income (gross revenues minus operating expenses) plus (2)
depreciation and amortization, minus (3) capital investments the
partnership must make to maintain its current asset base and cash flow
stream.\8\ Depreciation and amortization may be considered a part of
``available cash flow,'' because depreciation is an accounting charge
against current income, rather than an actual cash expense. As a
result, the MLP's cash distributions normally include not only the net
income component of ``available cash flow,'' but also the depreciation
component. This means that, in contrast to a corporation's dividends,
an MLP's cash distributions generally exceed the MLP's reported
earnings. Moreover, because of their high cash distributions, MLPs
usually finance capital investments required to significantly expand
operations or to make acquisitions through debt or by issuing
additional units rather than through retained cash, although the
general partner has the discretion to do so.
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    \8\ The definition of available cash may also net out short term
working capital borrowings, the repayment of capital expenditures,
and other internal items.
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    10. In rejecting the pipelines' proposals in HIOS and Kern River to
include MLPs in the proxy group, the Commission made clear that it was
not making a generic finding that MLPs cannot be considered for
inclusion in the proxy group if a proper evidentiary showing is
made.\9\ However, the Commission pointed out that data concerning
dividends paid by the proxy group members is a key component in any DCF
analysis, and expressed concern that an MLP's cash distributions to its
unit holders may not be comparable to the corporate dividends the
Commission uses in its DCF analysis. In Kern River, the Commission
explained its concern as follows:
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    \9\ Kern River Gas Transmission Company, 117 FERC ] 61,077
(2006) (Opinion No. 486) at P 147, reh'g pending.
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    Corporations pay dividends in order to distribute a share of their
earnings to stockholders. As such, dividends do not include any return
of invested capital to the stockholders. Rather, dividends represent
solely a return on invested capital. Put another way, dividends
represent profit that the stockholder is making on its investment.
Moreover, corporations typically reinvest some earnings to provide for
future growth of earnings and thus dividends. Since the return on
equity which the Commission awards in a rate case is intended to permit
the pipeline's investors to earn a profit on their investment and
provides funds to finance future growth, the use of dividends in the
DCF analysis is entirely consistent with the purpose for which the
Commission uses that analysis. By contrast, as Kern River concedes, the
cash distributions of the MLPs it seeks to add to the proxy group in
this case include a return of invested capital through an allocation of
the partnership's net income. While the level of an MLP's cash
distributions may be a significant factor in the unit holder's decision
to invest in the MLP, the Commission uses the DCF analysis solely to
determine the pipeline's return on equity. The Commission provides for
the return of invested capital through a separate depreciation
allowance. For this reason, to the extent an MLP's distributions
include a significant return of invested capital, a DCF analysis based
on those distributions, without any adjustment, will tend to overstate
the estimated return on equity, because the `dividend' would be
inflated by cash flow representing return of equity, thereby
overstating the earnings the dividend stream purports to reflect.\10\
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    \10\ Id. at P 149-50.
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    11. The Commission stated that it could nevertheless consider
including MLPs in the proxy group in a future case, if the pipeline
presented evidence addressing these concerns. The order suggested that
such evidence might include some method of adjusting the MLPs'
distributions to make them comparable to dividends, a showing that the
higher ``dividend'' yield of the MLP was offset by a lower long-term
growth projection, or some other explanation why distributions in
excess of earnings do not distort the DCF results for the MLP in
question. However, the Commission concluded that Kern River had not
presented sufficient evidence to address these issues, and that the
record in that case did not support including MLPs in the proxy group.
    12. In addition, Kern River pointed out that the traditional DCF
model only incorporates growth resulting from the reinvestment of
earnings, not growth arising from external sources of capital.\11\
Therefore, the Commission stated that if growth forecasted for an MLP
comes from external capital, it is necessary either (1) to explain why
the external sources of capital do not distort the DCF results for that
MLP or (2) propose an adjustment to the DCF analysis to eliminate any
distortion. The Commission's orders in HIOS reached the same
conclusions.
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    \11\ Id. at P 152.
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    13. In some oil pipeline rate cases decided before HIOS and Kern
River, the Commission included MLPs in the proxy group used to
determine oil pipeline return on equity on the ground that there were
no corporations available for use in the oil proxy

group.\12\ In those cases, no party raised any issue concerning the
comparability of an MLP's cash distribution to a corporation's
dividend. However, that issue did arise in the first oil pipeline case
decided after HIOS and Kern River, involving SFPP's Sepulveda Line.\13\
The Commission approved inclusion of MLPs in the proxy group in that
case on the grounds that the MLPs in question had not made
distributions in excess of earnings. The Sepulveda Line order therefore
analyzed the five MLPs that have been used to determine SFPP's ROE:
Buckeye Partners, L.P., Enbridge Energy Partners, L.P., Enron Gas
Liquids (Enron),\14\ TEPPCO Partners, L.P., and Kaneb Partners, L.P.
(later Valero Partners), now NuStar Energy, L.P. The order reviewed
each entity for the year 1996 and the previous four years, and held
that four of the firms had had income (earnings) in excess of
distributions and that their incomes (earnings) were stable over that
period with minor exceptions. The order found these facts sufficient to
address the concerns expressed in HIOS and Kern River. The fifth firm,
Enron, had distributions in excess of income (earnings) in four of the
five years. While the Commission did not preclude use of such MLPs,
Enron did not meet the HIOS test and was excluded as unrepresentative.
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    \12\ SFPP, L .P., 86 FERC ] 61,022 at 61,099 (1999).
    \13\ SFPP, L.P., 117 FERC ] 61,285 (2006) (SFPP Sepulveda
order), rehearing pending.
    \14\ Enron Gas Liquids was not affiliated with Enron, Inc. at
that time, but was a former affiliate that was spun off in the early
1990's.
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II. Discussion

    14. As discussed below, the Commission proposes to permit inclusion
of MLPs in a proxy group. However, the Commission proposes to cap the
``dividend'' used in the DCF analysis at the pipeline's reported
earnings, thus adjusting the amount of the distribution to be included
in the DCF model. The Commission would leave to individual cases the
determination of which MLPs and corporations should actually be
included in the natural gas or oil proxy group. However, participants
in these cases should include as much information as possible regarding
the business profile of the firms they propose to include in the proxy
group, for example, based on gross income, net income, or assets.
    15. The Supreme Court has stated that ``the return to the equity
owner should be commensurate with the return on investments in other
enterprises having corresponding risks. That return, moreover, should
be sufficient to assure confidence in the financial integrity of the
enterprise, so as to maintain its credit and to attract capital.'' \15\
The Commission is concerned that its current approach to determining
the composition of the proxy group for determining gas and oil pipeline
return on equity is, or will, require the use of firms which are less
and less representative of either natural gas or oil pipeline business
risk.
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    \15\ FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944); Bluefield
Water Works & Improvement Co. v. Public Service Comm'n, 262 U.S. 679
(1923).
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    16. As has been discussed, there are fewer and fewer publicly
traded diversified natural gas corporations that have interstate gas
pipelines as their predominant business line, whether this is measured
on a revenue, income, or asset basis. As such, there are fewer
diversified natural gas companies available for inclusion in a natural
gas pipeline proxy group which may reasonably be considered
representative of the risk profile of a natural gas pipeline firm.
Moreover, at this point the only publicly traded oil pipeline firms are
controlled by MLPs, which makes the issue of a representative proxy
group more acute.
    17. Cost of service ratemaking requires that the firms in the proxy
group be of comparable risk to the firm whose equity cost of capital is
at issue in a particular rate proceeding. If the proxy group is less
than clearly representative, this may require the Commission to adjust
for the difference in risk by adjusting the equity cost-of-capital, a
difficult undertaking requiring detailed support from the contending
parties and detailed case-by-case analysis by the Commission. Expanding
a proxy group to include MLPs whose business is more narrowly focused
on pipeline activities would help ameliorate this problem. Thus,
including MLP natural gas pipelines in the equity proxy group should
reduce the need to make adjustments since the proxy group is more
likely to contain firms that are representative of the regulated firm
whose rates are at issue. Including MLPs will also recognize the trend
to greater use of MLPs in the natural gas pipeline industry and address
the reality of the oil pipeline industry structure.
    18. The Commission's primary concern about including MLPs in the
proxy group has arisen from the interaction between use of the DCF
analysis to determine return on capital while relying on a depreciation
allowance for return of capital. The Commission permits a pipeline to
recover through its rates both a return on equity and a return of
invested capital. The Commission uses the DCF analysis solely to
determine the return on equity component of the cost-of-service. The
Commission provides for the return of invested capital through a
separate depreciation allowance. Given the purpose for which the
Commission uses the DCF analysis, the cash flows included in that
analysis must be limited to cash flows which may reasonably be
considered to reflect a return on equity. Such cash flows include that
portion of an MLP's cash distribution derived from net income, or
earnings.
    19. To the extent an MLP makes distributions in excess of earnings,
it is able to do so because partnership agreements define ``cash
available for distribution'' to include depreciation. This enables the
MLP to make cash distributions that include return of equity, in
addition to return on equity. However, because the Commission includes
a separate depreciation allowance in the pipeline's cost-of-service, a
DCF analysis including cash flows attributable to depreciation would
permit the pipeline to double recover its depreciation expense, once
through the depreciation allowance and once through an inflated ROE.
Adjusting an MLP's cash distribution to exclude that portion of the
distribution in excess of earnings addresses this problem.
    20. The Commission recognizes that it raised several concerns in
Kern River as to whether adjusting the MLP's cash distribution down to
the level of its earnings would be sufficient to eliminate the
distorting effects of including MLPs in the proxy group. The Commission
pointed out that corporations generally do not pay out all of their
earnings in dividends, but retain some earnings in order to generate
future growth. The Commission also suggested that the DCF model is
premised on growth in dividends deriving from reinvestment of current
earnings, and does not incorporate growth from external sources, such
as issuing debt or additional stock.
    21. The Commission believes that these concerns should not render
unreliable a DCF analysis using the adjusted MLP results. The market
data for the MLPs used in the DCF analysis should itself correct for
any distortions remaining after the adjustment to the cash distribution
described above. For example, the IBES growth projections represent an
average of the growth projections by professionals whose business is to
advise investors.\16\ The level of an MLP's cash distributions as

compared to its earnings is a matter of public record and thus known to
the security analysts making the growth forecasts used by IBES.
Therefore, the security analysts must be presumed to take those
distributions into account in making their growth forecasts for the
MLP. To the extent an MLP's relatively high cash distributions reduce
its growth prospects that should be reflected in a lower growth
forecast, which would offset the MLP's higher ``dividend'' yield.
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    \16\ Opinion No. 414-B, 85 FERC at 62,268-70.
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    22. In order to test the validity of this assumption, the
Commission reviewed the most recent IBES growth forecasts for five
diversified energy companies and six MLPs in the natural gas business.
The average IBES forecast for the corporations is 9 percent, while the
average IBES forecast for the MLPs is 6.17 percent, or nearly 300 basis
points lower.\17\ Thus, the security analysts do project lower growth
rates for the MLPs than for the corporations.
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    \17\ The IBES forecasts were prepared as of May 31, 2007
applying the current DCF model for the corporate sample and using
distributions capped at earnings for the MLPs. Thus the short term
growth rates for the five diversified gas corporations were: (1)
National Fuel Gas Corporation, 5 percent; (2) Questar Corporation, 9
percent; (3) Oneok, Inc., 9 percent; (4) Equitable Resources Inc.,
10 percent; and (5) Williams Companies, 12 percent. The short term
growth rates for the six gas MLPs were: (1) Oneok Partners, L.P., 5
percent; (2) TEPPCO Partners, L.P., 5 percent; (3) TC Pipelines,
L.P., 5 percent; (4) Boardwalk Pipeline Partners, L.P., 7 percent,
(5) Kinder Morgan Energy Partners, L.P., 7 percent, and (6)
Enterprise Products Partners, L.P., 8 percent.
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    23. In addition, the fact MLPs may rely upon external borrowings
and/or equity issuances to generate growth is not a reason to exclude
them from the proxy group. Most pipelines organized as corporations
also use external borrowings and to some extent equity issuances. To
the extent that gas or oil pipelines are controlled by diversified
energy companies with unregulated assets (either federal or state), the
financial practices may be the same, although perhaps not as highly
leveraged, and the results are likewise reflected in the IBES
projections. A prudent investor deciding whether to invest in a
security will reasonably consider all factors relevant to assessing the
value of that security. The potential effect of future borrowings or
equity issuances on share values of either MLPs or corporations is one
such factor. Since a DCF analysis is a method for investors to estimate
the value of securities, it follows that such an analysis may
reasonably take into account potential growth from external capital.
    24. The Commission does, however, recognize that an MLP's lack of
retained earnings may render cash distributions at their current level
unsustainable, and thus still unsuitable for inclusion in the DCF
analysis. Therefore, the Commission intends to require participants
proposing to include MLPs in the proxy group to provide a multi-year
analysis of past earnings. An analysis showing that the MLP does have
stable earnings would support a finding that the cash to be included in
the DCF calculation is likely to be available for distribution, thus
replicating the requirement of the corporate model of a stable
dividend.

III. Procedure for Comments

    25. The Commission invites interested persons to submit written
comments on its proposed policy to permit the inclusion of MLPs in the
proxy group to be used to determine the equity cost of capital of
natural gas and oil pipelines. The comments may include alternative
proposals for determining a representative proxy group given that (1)
Few natural gas companies meet the Commission's traditional standards
for inclusion in the proxy group, and (2) the only publicly traded oil
pipeline firms available for inclusion in the proxy group are
controlled by MLPs. Comments may also address the analysis advanced in
this proposed policy statement, alternative methods for adjusting the
amount of the MLP's distribution to be included the DCF analysis, and
the relevance of the stability of MLP earnings.
    26. Comments are due 30 days from the date of publication in the
Federal Register and reply comments are due 50 days from the date of
publication in the Federal Register. Comments must refer to Docket No.
PL07-2-000, and must include the commentor's name, the organization it
represents, if applicable, and its address. To facilitate the
Commission's review of the comments, commentors are requested to
provide an executive summary of their position. Additional issues the
commentors wish to raise should be identified separately. The
commentors should double space their comments.
    27. Comments may be filed on paper or electronically via the
eFiling link on the Commission's Web site at: http://www.ferc.gov. The

Commission accepts most standard word processing formats and commentors
may attach additional files with supporting information in certain
other file formats. Commentors filing electronically do not need to
make a paper filing. Commentors that are not able to file comments
electronically must send an original and 14 copies of their comments
to: Federal Energy Regulatory Commission, Office of the Secretary, 888
First Street, NE., Washington DC 20426.
    28. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commentors are not required to
serve copies of their comments on other commentors.

IV. Document Availability

    29. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through the Commission's Home Page (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.
    30. From the Commission's Home Page on the Internet, this
information is available in the Commission's document management
system, e-Library. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number (excluding the last three digits) in the docket number field.
    31. User assistance is available for eLibrary and the Commission's
website during normal business hours. For assistance, please contact
the Commission's Online Support at 1-866-208-3676 (toll free) or 202-
502-6652 (e-mail at<EMAIL_ADDRESS>or the Public Reference
Room at<PHONE_NUMBER>, TTY<PHONE_NUMBER> (e-mail at:
public.referenceroom@ferc.gov).

    By the Commission.
Kimberly D. Bose,
Secretary.
 [FR Doc. E7-14708 Filed 7-30-07; 8:45 am]

BILLING CODE 6717-01-P