[Federal Register Volume 85, Number 91 (Monday, May 11, 2020)]
[Rules and Regulations]
[Pages 27681-27687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08634]



[[Page 27681]]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[Docket No. RM19-5-001; Order No. 864-A]


Public Utility Transmission Rate Changes To Address Accumulated 
Deferred Income Taxes

AGENCY: Federal Energy Regulatory Commission.

ACTION: Order on rehearing and clarification.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) 
addresses requests for rehearing and clarification and reaffirms its 
determinations in Order No. 864. In Order No. 864, the Commission 
required public utilities with transmission formula rates to propose 
tariff revisions to implement certain excess and deficient accumulated 
deferred income taxes (ADIT)-related mechanisms in their transmission 
formula rates as a result of the Tax Cuts and Jobs Act of 2017 (Tax 
Cuts and Jobs Act). The Commission continued to require public 
utilities with transmission stated rates to address excess and 
deficient ADIT resulting from the Tax Cuts and Jobs Act in their next 
rate cases.

DATES: The effective date of the document published on November 27, 
2019 (84 FR 65281), is confirmed: January 27, 2020.

FOR FURTHER INFORMATION CONTACT: 
Noah Lichtenstein (Technical Information), Office of Energy Market 
Regulation, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-8696, noah.lichtenstein@ferc.gov.

Jonathan Taylor (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-6649, jonathan.taylor@ferc.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

 
 
                                                               Paragraph
                                                                 Nos.
 
I. Introduction.............................................           1
        A. Background.......................................           2
        B. Notice of Proposed Rulemaking....................           3
        C. Order No. 864....................................           5
II. Discussion..............................................           7
        A. Transmission Stated Rates........................           7
                1. Order No. 864............................           7
                2. APPA's Request for Clarification or                11
                 Rehearing..................................
                3. Commission Determination.................          16
        B. Transmission Formula Rates.......................          23
                1. Order No. 864............................          23
                2. Exelon Orders............................          26
                3. Exelon Companies' Request for Rehearing..          29
                4. Commission Determination.................          32
III. Document Availability..................................          38
IV. Dates...................................................          41
 

I. Introduction

    1. On November 21, 2019, the Federal Energy Regulatory Commission 
(Commission) issued Order No. 864, which is a final rule addressing 
accumulated deferred income taxes (ADIT) for public utilities.\1\ On 
December 23, 2019, American Public Power Association (APPA) requested 
clarification, or in the alternative, rehearing, and Exelon Corporation 
and its public utility subsidiaries (collectively, Exelon Companies) 
\2\ requested rehearing of Order No. 864. For the reasons discussed 
below, we deny the requests for rehearing and grant APPA's request for 
clarification in part.
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    \1\ Public Utility Transmission Rate Changes to Address 
Accumulated Deferred Income Taxes, Order No. 864, 84 FR 65281, 169 
FERC ] 61,139 (2019).
    \2\ Exelon Corporation's public utility subsidiaries include 
Commonwealth Edison Co., Delmarva Power & Light Co., Atlantic City 
Electric Co., Baltimore Gas and Electric Co., and Potomac Electric 
Power Co.
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A. Background

    2. On December 22, 2017, the President signed into law the Tax Cuts 
and Jobs Act of 2017.\3\ The Tax Cuts and Jobs Act, among other things, 
reduced the federal corporate income tax rate from 35 percent to 21 
percent, effective January 1, 2018. This means that, beginning January 
1, 2018, companies subject to the Commission's jurisdiction must 
compute income taxes owed to the Internal Revenue Service (IRS) based 
on a 21% tax rate. This tax rate reduction will result in a reduction 
in ADIT liabilities and ADIT assets on the books of public 
utilities.\4\ As a result of the tax rate reduction, a portion of an 
ADIT liability that was collected from customers will no longer be due 
from public utilities to the IRS and is considered excess ADIT, which 
must be returned to customers in a cost of service ratemaking 
context.\5\ Consistent with the Commission's regulations, public 
utilities are required to adjust their ADIT assets and ADIT liabilities 
to reflect the effect of the change in tax rates in the period the 
change is enacted.\6\
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    \3\ An Act to provide for reconciliation pursuant to titles II 
and V of the concurrent resolution on the budget for fiscal year 
2018, Public Law 115-97, 131 Stat. 2054 (2017) (Tax Cuts and Jobs 
Act).
    \4\ ADIT balances are accumulated on the regulated books and 
records of public utilities based on the requirements of the Uniform 
System of Accounts. ADIT arises from timing differences between the 
method of computing taxable income for reporting to the IRS and the 
method of computing income for regulatory accounting and ratemaking 
purposes. See 18 CFR 35.24(d)(2) (``Timing differences means 
differences between the amounts of expenses or revenues recognized 
for income tax purposes and amounts of expenses or revenues 
recognized for ratemaking purposes, which differences arise in one 
time period and reverse in one or more other time periods so that 
the total amounts of expenses or revenues recognized for income tax 
purposes and for ratemaking purposes are equal.'').
    \5\ The converse is true for public utilities that have ADIT 
assets.
    \6\ See 18 CFR 35.24 and 18 CFR 154.305; see also Regulations 
Implementing Tax Normalization for Certain Items Reflecting Timing 
Differences in the Recognition of Expenses or Revenues for 
Ratemaking and Income Tax Purposes, Order No. 144, 46 FR 26613 (May 
14, 1981), FERC Stats. & Regs. ] 30,254 (1981) (cross-referenced at 
18 FERC ] 61,163), order on reh'g, Order No. 144-A, 47 FR 8329 (Feb. 
26, 1982), FERC Stats. & Regs. ] 30,340 (1982) (cross referenced at 
15 FERC ] 61,142).

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[[Page 27682]]

B. Notice of Proposed Rulemaking

    3. In response to the Tax Cuts and Jobs Act, on November 15, 2018 
(83 FR 59331 (Nov. 23, 2018)), the Commission issued a notice of 
proposed rulemaking (NOPR) to address excess and deficient ADIT for 
public utility transmission providers with transmission rates under an 
Open Access Transmission Tariff, a transmission owner tariff, or a rate 
schedule. For public utilities with transmission formula rates, the 
Commission found that many, if not most, transmission formula rates do 
not contain provisions to fully reflect excess or deficient ADIT 
following a change in tax rates, as required by the Commission's 
regulations. The Commission explained that a public utility's 
transmission formula rate should include certain mechanisms that 
accurately reflect excess or deficient ADIT in a public utility's cost 
of transmission service during the annual updates of the rest of the 
revenue requirement, along with a worksheet that tracks excess and 
deficient ADIT. The Commission proposed to require public utilities to 
revise their tariffs accordingly.\7\
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    \7\ Order No. 864, 169 FERC ] 61,139 at PP 15-16.
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    4. For public utilities with transmission stated rates, the 
Commission proposed to maintain Order No. 144's requirement that such 
public utilities reflect any adjustments made to their ADIT balances as 
a result of the Tax Cuts and Jobs Act in their next rate case.\8\ 
However, to increase the likelihood that the customers that contributed 
to the related ADIT accounts receive the benefit of the reduced tax 
rate, the Commission proposed to require public utilities with 
transmission stated rates to calculate the excess or deficient ADIT as 
a result of the Tax Cuts and Jobs Act using the ADIT approved in their 
last rate cases and return or recover this amount to or from 
customers.\9\
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    \8\ See Order No. 144, FERC Stats. & Regs. ] 30,254 at 31,519, 
31,560 (requiring public utilities to file adjustments to recover 
deferred tax amounts in their next rate case following the order, 
and to begin the process of making up deficiencies or eliminating 
excesses in their ADIT reserves so that they will be operating under 
a full normalization policy within a reasonable period of time).
    \9\ Id. P 17.
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C. Order No. 864

    5. In Order No. 864, the Commission required public utilities with 
transmission formula rates to propose tariff revisions to implement 
certain excess and deficient ADIT-related mechanisms. Specifically, the 
Commission required public utilities to include the following in their 
transmission formula rates: (1) A mechanism to deduct any excess ADIT 
from or add any deficient ADIT to their rate bases; \10\ (2) a 
mechanism to decrease or increase their income tax allowances by any 
amortized excess or deficient ADIT, respectively; \11\ and (3) a new 
permanent worksheet that will annually track information related to 
excess or deficient ADIT.\12\ The Commission also required that public 
utilities with transmission formula rates return the full amount of 
excess ADIT resulting from the Tax Cuts and Jobs Act to customers.\13\
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    \10\ Id. P 28.
    \11\ Id. P 42.
    \12\ Id. P 62.
    \13\ Id. P 45.
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    6. The Commission did not adopt the proposals in the NOPR that were 
applicable to public utilities with transmission stated rates.\14\ 
Instead, the Commission maintained the status quo that public utilities 
with transmission stated rates should address any excess or deficient 
ADIT resulting from the Tax Cuts and Jobs Act in their next rate 
cases.\15\ Recognizing that the Commission will take a case-by-case 
approach in addressing excess and deficient ADIT for a public utility 
with a transmission stated rate, the Commission provided guidance that 
for those public utilities with a prior Commission-approved methodology 
for returning excess ADIT, they should have begun reducing excess ADIT 
pursuant to that approved method.\16\ For those public utilities that 
lack a prior-Commission approved methodology for returning excess ADIT, 
they should use some ratemaking method for returning excess ADIT and 
accordingly should begin reducing excess ADIT immediately upon a tax 
rate change.\17\
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    \14\ Id. P 86.
    \15\ Id.
    \16\ Id. P 91.
    \17\ Id. PP 92-93.
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II. Discussion

A. Transmission Stated Rates

1. Order No. 864
    7. As discussed above, the Commission did not adopt any of the 
proposals in the NOPR for public utilities with transmission stated 
rates. Rather, the Commission maintained the status quo under Order No. 
144, Order No. 475 \18\ and 18 CFR 35.24, under which public utilities 
with transmission stated rates should address any excess or deficient 
ADIT caused by the Tax Cuts and Jobs Act in their next rate case.\19\ 
The Commission explained that, consistent with prior precedent and the 
Commission's regulations, the question of how to properly handle excess 
and deficient ADIT for public utilities with transmission stated rates 
following a tax rate change continues to raise complex questions that 
are more properly addressed in a rate case.\20\
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    \18\ Rate Changes Relating to Federal Corporate Income Tax Rate 
for Public Utilities, Order No. 475, 52 FR 24987 (July 2, 1987), 
FERC Stats. & Regs. ] 30,752 (cross-referenced at 39 FERC ] 61,357), 
order on reh'g, 52 FR 39907 (Oct. 26, 1987), 41 FERC ] 61,029 (1987) 
(cross-referenced at 41 FERC ] 61,029).
    \19\ Order No. 864, 169 FERC ] 61,139 at P 86.
    \20\ Id. PP 87-90.
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    8. Because excess and deficient ADIT for a public utility with a 
transmission stated rate will be addressed in that public utility's 
next rate case, the Commission provided guidance as to how excess and 
deficient ADIT should be treated between rate cases. For public 
utilities with transmission stated rates that have a Commission-
approved ratemaking method made specifically applicable to them for 
returning excess ADIT, the Commission stated that those public 
utilities should have begun reducing excess ADIT pursuant to that 
previously Commission-approved method.\21\ For public utilities with 
transmission stated rates that do not have a Commission-approved 
ratemaking method, the Commission explained that, in accordance with 
the Commission's regulations, those public utilities must ``use some 
ratemaking method'' for making a provision for returning excess ADIT 
and that ``the appropriateness of such method will be subject to a 
case-by-case determination'' by the Commission.\22\
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    \21\ Id. P 91.
    \22\ Id. P 92 (quoting 18 CFR 35.24(c)(3)).
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    9. As a general course of action, the Commission provided guidance 
that public utilities with transmission stated rates that do not have a 
Commission-approved ratemaking method will begin reducing excess ADIT 
immediately upon a tax rate change. The Commission noted that its 
expectation is ``merely intended to provide guidance'' to such public 
utilities and that the Commission will address issues related to a 
public utility's method for amortizing excess ADIT based on the 
specific facts and circumstances in each proceeding.\23\ The Commission 
also stated that nothing in Order No. 864 prevents a public utility 
with a transmission stated rate that does not have a Commission-
approved ratemaking method from proposing to delay amortization of 
excess ADIT until its next rate case.\24\
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    \23\ Id. P 93.
    \24\ Id.

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[[Page 27683]]

    10. In providing guidance to public utilities with transmission 
stated rates, the Commission explained why it is reasonable to treat 
excess ADIT differently for public utilities with transmission stated 
rates and those with transmission formula rates. The Commission stated 
that the primary consideration in doing so was the two unique 
circumstances of transmission formula rates at the time the Tax Cuts 
and Jobs Act became law. First, the Commission identified that most 
transmission formula rates lack a mechanism to make provision for 
excess ADIT in computing the income tax component of a public utility's 
cost of service as required under the Commission's regulations. The 
Commission found that it is therefore inappropriate to treat excess 
ADIT resulting from the Tax Cuts and Jobs Act as reducing immediately 
as of January 1, 2018, when the transmission formula rate itself lacks 
a mechanism to accomplish this task. Second, the Commission stated that 
the rates of public utilities with transmission formula rates increased 
upon the enactment of the Tax Cuts and Jobs Act (unlike transmission 
stated rates, which are fixed between rate cases) because transmission 
formula rates excluded excess ADIT from the calculation of the rates. 
That is, the excess ADIT resulting from the Tax Cuts and Jobs Act no 
longer served as a reduction to rate base as it did prior to the tax 
rate change when it was part of ADIT because the transmission formula 
rate did not have a mechanism that allowed excess ADIT to reduce rate 
base. The Commission reasoned that, therefore, it is appropriate to 
treat excess ADIT as wholly preserved in Account 254 (Other Regulatory 
Liabilities) until it can be addressed and reinserted into the 
transmission formula rate.\25\ The Commission also noted that the 
Commission's policy prior to Order No. 864 required a public utility 
with a transmission formula rate to seek Commission approval prior to 
returning excess ADIT, which further distinguishes transmission formula 
rates from transmission stated rates.\26\
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    \25\ Id. PP 93-94.
    \26\ Id. n.137.
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2. APPA's Request for Clarification or Rehearing
    11. APPA requests that the Commission clarify that public utilities 
with transmission stated rates must return the full amount of excess 
ADIT resulting from the Tax Cuts and Jobs Act to customers.\27\ APPA 
asserts that Order No. 864 creates ambiguity regarding whether 
customers of public utilities with transmission stated rates will 
receive the full amount of excess ADIT resulting from the Tax Cuts and 
Jobs Act. Specifically, APPA points to the Commission's guidance in 
Order No. 864 that the Commission ``will generally apply a policy that 
public utilities begin reducing excess ADIT immediately upon a tax rate 
change and not at a later date, such as at the time of a future rate 
case.'' \28\ APPA claims that the Commission's guidance, among other 
aspects of Order No. 864, potentially raises a concern that the portion 
of excess ADIT amortized between January 1, 2018, and a public 
utility's next rate case might not be returned to customers.\29\ For 
example, APPA argues that a public utility might seek to adopt a brief 
amortization period for unprotected excess ADIT amounts that would 
amortize fully before that public utility's next rate case, therefore 
depriving customers of that excess ADIT being returned.\30\
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    \27\ APPA Rehearing at 2.
    \28\ Id. at 4 (quoting Order No. 864, 169 FERC ] 61,139 at P 
93).
    \29\ Id. at 4-5.
    \30\ Id.
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    12. APPA contends that failing to require public utilities with 
transmission stated rates to return excess ADIT would depart from 
Commission precedent. APPA argues that the Commission acknowledged in 
Order No. 864 that, under tax normalization, excess ADIT ``must be 
returned to customers in a cost of service ratemaking context.'' \31\ 
Further, according to APPA, in Order No. 144, the Commission found that 
``[a]ny excess or deficiency in [ADIT] does not . . . result in a 
windfall to either shareholders or ratepayers since the balances will 
systematically be subject to a reconciliation in future rates.'' \32\ 
APPA argues that excusing public utilities from returning excess ADIT 
to customers could result in a windfall to public utilities, which 
contravenes the Commission's findings in Order No. 144.\33\
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    \31\ Id. at 5 (quoting Order No. 864, 169 FERC ] 61,139 at P 8).
    \32\ Id. at 6 (quoting Order No. 144, FERC Stats. & Regs. ] 
30,254 at 31,554).
    \33\ Id.
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    13. APPA also asserts that the Commission required public utilities 
with transmission stated rates to ``establish a plan to return any 
excess [ADIT] in rate applications'' in Order No. 475.\34\ APPA claims 
that Order No. 475 did not contemplate that customers would be deprived 
of the return of excess ADIT.\35\ Finally, APPA contends that the 
Commission acknowledged in Order No. 864 that public utilities are 
generally required to obtain specific ratemaking authority prior to 
amortizing a regulatory asset or liability in rates.\36\ APPA argues 
that public utilities with transmission stated rates should not be 
allowed to deprive customers of the full excess ADIT regulatory 
liability by amortizing the excess ADIT in that regulatory liability 
between rate cases.\37\
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    \34\ Id. (quoting Order No. 475, FERC Stats. & Regs. ] FERC 
Stats. & Regs. ] 30,752 at 30,736).
    \35\ Id.
    \36\ Id. at 7.
    \37\ Id.
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    14. In the alternative, APPA requests rehearing of Order No. 864. 
APPA argues that, to the extent the Commission's guidance provided in 
Order No. 864 would result in any portion of excess ADIT not being 
returned to customers, the Commission departed from prior Commission 
policy without adequate explanation by permitting public utilities with 
transmission stated rates to amortize excess ADIT immediately as of the 
effective date of the Tax Cuts and Jobs Act. In support of its 
rehearing request, APPA reiterates its arguments that excess ADIT must 
be returned to customers in a cost of service ratemaking context and 
that the Commission's tax normalization regulations are meant to ensure 
that public utility shareholders do not receive a windfall from excess 
ADIT. APPA also reiterates its argument that the Commission's 
accounting guidance prohibits the amortization of regulatory assets or 
liabilities relating to excess or deficient ADIT until they are 
included in ratemaking.\38\
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    \38\ Id. at 9.
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    15. While APPA does not dispute the unique circumstances 
surrounding transmission formula rates at the time of the enactment of 
the Tax Cuts and Jobs Act, APPA claims that such circumstances provide 
no basis for depriving customers of public utilities with transmission 
stated rates of the full amount of excess ADIT resulting from the Tax 
Cuts and Jobs Act. Further, APPA argues that the requirement for public 
utilities to seek Commission approval prior to including a regulatory 
asset or liability in rates applies to the Commission's cost-of-service 
ratemaking generally and is not limited to only transmission formula 
rates.
3. Commission Determination
    16. We grant APPA's request for clarification in part and deny its 
request for rehearing. APPA requests that the Commission clarify that a 
public utility with a transmission stated rate must

[[Page 27684]]

return the full amount of excess ADIT resulting from the Tax Cuts and 
Jobs Act to customers. APPA quotes the guidance provided in Order No. 
864 that the Commission ``will generally apply a policy that public 
utilities begin reducing excess ADIT immediately upon a tax rate change 
and not at a later date, such as at the time of a future rate case.'' 
\39\ APPA argues that generally applying such a policy for transmission 
stated rates while requiring public utilities with transmission formula 
rates to return the full amount of excess ADIT resulting from the Tax 
Cuts and Jobs Act potentially raises concerns that, for public 
utilities with transmission stated rates, the portion of excess ADIT 
amortized between January 1, 2018 and a public utility's next rate case 
might not be returned to customers. We take this opportunity to further 
clarify the Commission's guidance in Order No. 864, which addresses the 
return of excess ADIT resulting from the Tax Cuts and Jobs Act for 
public utilities with transmission stated rates.
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    \39\ Order No. 864, 169 FERC ] 61,139 at P 93.
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    17. We emphasize that there is a critical distinction in applying 
the Commission's guidance and language quoted by APPA, which turns on 
whether a public utility with a transmission stated rate has a 
Commission-approved ratemaking method for addressing excess and 
deficient ADIT. In Order No. 144, the Commission required public 
utilities to file adjustments to recover deferred tax amounts in their 
next rate case following the order, and to begin the process of making 
up deficiencies or eliminating excesses in their ADIT reserves so that 
they will be operating under a full normalization policy within a 
reasonable period of time.\40\ To the extent that a public utility with 
a transmission stated rate complied with Order No. 144 and has a 
Commission-approved ratemaking method made specifically applicable to 
it for addressing excess and deficient ADIT, then such a public utility 
should return excess ADIT or recover deficient ADIT in accordance with 
that prior Commission-approved method.\41\ That is, such a public 
utility should begin amortizing excess or deficient ADIT immediately 
upon a tax rate change in accordance with its prior Commission-approved 
method for doing so.
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    \40\ Order No. 144, FERC Stats. & Regs. ] 30,254 at 31,519, 
31,560.
    \41\ Order No. 864, 169 FERC ] 61,139 at P 91. See also 18 CFR 
35.24.
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    18. A public utility's transmission stated rate is presumed to 
recover all its costs during the time the rate is in effect, even if 
some of those costs change between rate cases.\42\ Federal income 
taxes, including ADIT, are a cost of providing service. If a public 
utility with a transmission stated rate has a Commission-approved 
ratemaking method for addressing excess and deficient ADIT, it is 
presumed that the appropriate amount of excess ADIT is being returned 
and deficient ADIT is being recovered as part of that transmission 
stated rate. We therefore clarify, consistent with the presumption 
discussed in this paragraph, that public utilities with transmission 
stated rates that have a Commission-approved ratemaking method for 
addressing excess and deficient ADIT return the appropriate amount of 
excess ADIT resulting from the Tax Cuts and Jobs Act to customers 
through their transmission stated rates.\43\
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    \42\ For example, between rate cases, a public utility's 
operating costs, billing determinants, and cost of capital may 
increase or decrease. See SFPP, Opinion No. 511-B, 150 FERC ] 
61,096, at P 19 (2015) (As with other items in a pipeline's cost of 
service, the Commission does not ``track'' or ``true-up'' the 
difference between the pipeline's actual taxes and the ``income tax 
allowance'' used in a pipeline's most recent cost-of-service rate 
case. Although a pipeline's costs may change in the years following 
a rate case, the pipeline is assumed to recover its costs (including 
its tax costs) via the rates in effect at the time the cost is 
incurred. There is no subsequent adjustment for under- or over-
recoveries.); see also Interstate and Intrastate Natural Gas 
Pipelines; Rate Changes Relating to Federal Income Tax Rate, Order 
No. 849, 83 FR 36672 (July 30, 2018), 164 FERC ] 61,031, at PP 136-
150 (2018) (providing guidance that natural gas pipelines should 
begin amortizing excess ADIT immediately as of the date the Tax Cuts 
and Jobs Act was enacted for purposes of the FERC Form No. 501-G 
informational filing, consistent with Sec.  154.305 of the 
Commission's regulations).
    \43\ We note that the Commission has the opportunity to review 
in the next rate case whether a public utility with a transmission 
stated rate that has a Commission-approved ratemaking method has 
correctly applied that approved ratemaking method.
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    19. For public utilities with transmission stated rates that lack a 
Commission-approved ratemaking method, the Commission's regulations 
require that such a public utility use some ratemaking method to make 
provision for excess and deficient ADIT, and the appropriateness of 
this method will be subject to case-by-case determination in a later 
rate proceeding.\44\ The Commission provided guidance that a public 
utility with a transmission stated rate that lacks a Commission-
approved ratemaking method for addressing excess and deficient ADIT 
could begin employing a ratemaking method to amortize excess and 
deficient ADIT balances immediately upon a tax rate change, subject to 
the Commission's review of the appropriateness of that method in the 
public utility's next rate case.\45\ This guidance is similarly based 
on our discussion above that a public utility's transmission stated 
rate is presumed to recover all its costs during the time the rate is 
in effect, even if some of those costs change between rate cases.\46\
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    \44\ See 18 CFR 35.24(c)(3).
    \45\ Order No. 864, 169 FERC ] 61,139 at P 93; see also 
Interstate and Intrastate Natural Gas Pipelines; Rate Changes 
Relating to Federal Income Tax Rate, Order No. 849, 164 FERC ] 
61,031, at PP 136-150 (2018) (providing guidance that natural gas 
pipelines should begin amortizing excess ADIT immediately as of the 
date the Tax Cuts and Jobs Act was enacted for purposes of the FERC 
Form No. 501-G informational filing, consistent with Sec.  154.305 
of the Commission's regulations).
    \46\ See supra discussion at P 18 and n.42.
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    20. We reiterate, however, that this is merely guidance and that 
the Commission will address issues related to a public utility's method 
for amortizing excess ADIT based on the specific facts and 
circumstances in each proceeding. For this reason, we are unpersuaded 
by APPA's argument that a public utility with a transmission stated 
rate might seek to adopt a brief amortization period for unprotected 
excess ADIT that would amortize fully before that public utility's next 
rate case.\47\ A public utility with transmission stated rates that 
does not have a Commission-approved ratemaking method is required to 
support and justify all of its proposed amortization periods for excess 
and deficient ADIT, including unprotected excess ADIT, in its next rate 
proceeding. At that time, the Commission has an opportunity to 
determine whether the amortization of excess and deficient ADIT is just 
and reasonable.
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    \47\ See APPA Rehearing at 4.
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    21. We disagree with APPA that failing to require public utilities 
with transmission stated rates to return excess ADIT departs from 
Commission precedent and results in a windfall to public utilities.\48\ 
We are not failing to require public utilities to return excess ADIT 
resulting from the Tax Cuts and Jobs Act. Rather, consistent with 
Commission precedent, we are maintaining the status quo that excess and 
deficient ADIT for a public utility will be addressed in that public 
utility's next rate case.\49\ In doing so, the

[[Page 27685]]

Commission provided guidance that public utilities with transmission 
stated rates that have a Commission-approved ratemaking method should 
begin reducing excess ADIT in accordance with that approved method. 
Public utilities with transmission stated rates that lack a Commission-
approved ratemaking method could begin reducing excess ADIT immediately 
upon a tax rate change, subject to the Commission's review of the 
appropriateness of that method in the public utility's next rate 
case.\50\ We therefore find that the Commission's rationale in Order 
No. 144--that ``any excess or deficiency in [ADIT] does not . . . 
result in a windfall to either shareholders or ratepayers since the 
balances will systematically be subject to a reconciliation in future 
rates''--still applies.\51\
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    \48\ To the extent that an entity believes that a public 
utility's stated transmission rate is unjust and unreasonable as it 
pertains to excess or deficient ADIT resulting from the Tax Cuts and 
Jobs Act, it may file a complaint under section 206 of the FPA. 16 
U.S.C. 824e.
    \49\ See 18 CFR 35.24(c)(3) (``If no Commission-approved 
ratemaking method has been made specifically applicable to the 
public utility, then the public utility must use some ratemaking 
method for making such provision, and the appropriateness of this 
method will be subject to case-by-case determination.''); see also 
18 CFR 35.24(c)(1)(ii) and (2).
    \50\ Nothing here precludes a public utility with transmission 
stated rates from proposing to delay amortization of excess ADIT to 
its next rate case.
    \51\ Order No. 144, FERC Stats. & Regs. ] 30,254 at 31,554.
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    22. Finally, we are unpersuaded by APPA's argument that the 
Commission's accounting guidance prohibits the amortization of 
regulatory assets or liabilities relating to excess or deficient ADIT 
prior to approval by the Commission. Public utilities with transmission 
stated rates that have a Commission-approved method for returning 
excess ADIT by definition already have prior Commission approval to 
begin reducing excess ADIT. For public utilities with transmission 
stated rates that do not have a Commission-approved method for 
returning excess ADIT, the Commission's regulations require that such 
public utilities must use some ratemaking method for reducing excess 
ADIT, and the appropriateness of this method will be subject to case-
by-case determination.\52\ The appropriateness of that method is 
ultimately approved by the Commission, which happens in the public 
utility's next rate case. Customers also have an opportunity to 
intervene, comment, and protest the method for amortizing excess and 
deficient ADIT at that time.
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    \52\ See 18 CFR 35.24(c)(3).
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B. Transmission Formula Rates

1. Order No. 864
    23. As discussed above, the Commission required public utilities 
with transmission formula rates to propose tariff revisions to 
implement certain excess and deficient ADIT-related mechanisms in their 
transmission formula rates. The Commission stated that, on compliance, 
the Commission expects public utilities with transmission formula rates 
to make their proposed tariff revisions effective on the effective date 
of the final rule, January 27, 2020.\53\
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    \53\ Order No. 864, 169 FERC ] 61,139 at P 100.
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    24. As relevant to Exelon Companies' request for rehearing, the 
Commission stated that the full regulatory liability for excess ADIT 
should be captured in transmission formula rates, beginning on the 
effective date of any proposed tariff revision. In other words, the 
full amount of excess ADIT resulting from the Tax Cuts and Jobs Act 
must be returned to transmission formula rate customers.\54\
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    \54\ Id. P 45.
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    25. In addition, the Commission clarified that the requirements 
adopted in Order No. 864 apply only to excess and deficient ADIT 
resulting from the Tax Cuts and Jobs Act and any future tax rate 
changes. The Commission stated that, therefore, the requirements in 
Order No. 864 do not conflict with the Commission's determination in 
Commonwealth Edison, which is discussed below.\55\
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    \55\ Id. P 51 (citing Commonwealth Edison Co., 164 FERC ] 61,172 
(2018) (Commonwealth Edison)). See also infra n.57.
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2. Exelon Orders
    26. Beginning in December 2016, prior to the issuance of Order No. 
864, Exelon Companies submitted multiple filings under section 205 of 
the Federal Power Act (FPA) \56\ that proposed tariff revisions seeking 
to, among other things, recover past deficient ADIT amounts. While the 
specific facts of the filings differ, of relevance here, Exelon 
Companies sought to recover the full amount of past deficient ADIT 
resulting from prior state corporate income tax rate increases.
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    \56\ 16 U.S.C. 824d (2018).
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    27. The Commission rejected Exelon Companies' proposed tariff 
revisions, finding that Exelon Companies had not shown the proposed 
tariff revisions allowing for the recovery of the full amount of past 
deficient ADIT to be just and reasonable because, among other things, 
Exelon Companies failed to meet the requirement in Order No. 144 to 
propose recovery in the public utility's next rate case.\57\ In 
rejecting Exelon Companies' proposed tariff revisions, the Commission 
provided guidance that, due to recent state corporate income tax rate 
increases, a portion of the deficient ADIT that Exelon Companies sought 
to recover may still be eligible for recovery. The Commission stated 
that should Exelon Companies seek recovery of such deficient ADIT 
amounts, Exelon Companies should support these amounts by providing 
detailed workpapers, as well as provide for the reduction of the 
associated ADIT liabilities from rate base.\58\
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    \57\ PJM Interconnection, L.L.C., 161 FERC ] 61,163 (2017), 
reh'g denied, 164 FERC ] 61,173 (2018), aff'd sub nom. Balt. Gas & 
Elec. Co. v. FERC, No. 18-1298, 2020 WL 1482394 (D.C. Cir. Mar. 27, 
2020) (BG&E); Commonwealth Edison, 164 FERC ] 61,172 (collectively, 
Exelon Orders).
    \58\ Commonwealth Edison, 164 FERC ] 61,172 at P 130.
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    28. The Commission also announced a limited, one-year compliance 
period in which a public utility could file to recover past deficient 
ADIT if the public utility did not file a rate case subsequent to the 
Commission' issuance of Order No. 144 or if the public utility properly 
preserved its right to recover past ADIT through settlement terms.\59\ 
Following this limited compliance period, the Commission clarified that 
public utilities should submit FPA section 205 filings seeking recovery 
of deficient ADIT amounts within two years of incurring such 
amounts.\60\
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    \59\ Id. P 132.
    \60\ Id. P 133.
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3. Exelon Companies' Request for Rehearing
    29. Exelon Companies request rehearing of the Commission's 
requirement that public utilities with transmission formula rates must 
return the full amount of excess ADIT resulting from the Tax Cuts and 
Jobs Act to customers. Exelon Companies contend that the requirement in 
Order No. 864 that excess ADIT resulting from the Tax Cuts and Jobs Act 
should be ``wholly preserved'' until a public utility's transmission 
formula rate contains a mechanism to flow through that ``full amount'' 
of excess ADIT in rates is inconsistent with the Commission's decisions 
in the Exelon Orders.\61\
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    \61\ Exelon Companies Rehearing at 8-9.
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    30. Exelon Companies assert that their proposed tariff revisions in 
the Exelon Orders sought to address various deferred tax adjustments, 
which according to Exelon Companies are recorded pursuant to the 
Commission's policies concerning Statement of Financial Accounting 
Standards No. 109 (FAS 109).\62\ Exelon Companies argue that they 
proposed, among other things, to recover the full amount of past

[[Page 27686]]

deficient ADIT and return the full amount of excess ADIT resulting from 
the Tax Cuts and Jobs Act. Exelon Companies allege that the Commission 
rejected the proposed tariff revisions, finding that only a portion of 
the past deficient ADIT would be available for recovery once the 
proposed tariff revisions become effective. Exelon Companies therefore 
argue that no justification has been provided to support treating 
excess ADIT related to the Tax Cuts and Jobs Act differently from the 
other FAS 109 amounts addressed in the Exelon Orders, which erode away 
if the transmission formula rate does not contain a mechanism to 
reflect those amounts.\63\
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    \62\ Exelon Companies' use of the term FAS 109 amounts refers 
generally to its proposals to flow three items through its formula 
rate: (1) Excess and deficient ADIT caused by the Tax Cuts and Jobs 
Act; (2) accumulated tax balances for past allowance for funds used 
during construction (AFUDC) equity originations that have not flowed 
through rates and future AFUDC equity originations; and (3) tax 
account balance differences caused by a switch from the flow-through 
method to normalization.
    \63\ Exelon Companies Rehearing at 3-6, 8-9.
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    31. Exelon Companies allege that the Commission's tax normalization 
policies should be conducted in an even-handed fashion, meaning that 
the full amount of excess ADIT resulting from the Tax Cuts and Jobs Act 
should be treated similarly to other FAS 109 amounts. According to 
Exelon Companies, the Commission attempts to provide a technical 
justification for treating excess ADIT for transmission formula rates 
different than transmission stated rates, explaining that the rates of 
public utilities with transmission formula rates increased as a result 
of the Tax Cuts and Jobs Act where those formula rates did not have a 
mechanism to offset the excess ADIT from rate base. Exelon Companies 
argue that their formula rates have a mechanism to offset rate base by 
FAS 109 amounts, so the distinction does not apply to Exelon Companies. 
Exelon Companies further contend that the Commission acknowledges that 
Order No. 864 reaches a different result than the Exelon Orders, but 
provides no explanation for why the different result is justified.\64\
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    \64\ Id. at 9-13.
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4. Commission Determination
    32. We deny Exelon Companies' request for rehearing.\65\ We 
disagree with Exelon Companies' central argument that the Commission is 
treating the return of excess ADIT (a regulatory liability) resulting 
from the Tax Cuts and Jobs Act differently than how the Commission 
treated deficient ADIT (a regulatory asset) resulting from past tax 
rate increases in the Exelon Orders. Exelon Companies both 
mischaracterize the Commission's reasons for rejecting full recovery of 
their past deficient ADIT amounts in the Exelon Orders and the 
Commission's actions in Order No. 864. Simply, the Commission rejected 
Exelon Companies' attempt to recover the full amount of past deficient 
ADIT because Exelon Companies failed to meet the next rate case 
requirement of Order No. 144.\66\ Order No. 864 does not address past 
deficient ADIT,\67\ nor does it change the requirements of Order No. 
144.\68\
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    \65\ To the extent Exelon Companies' request for rehearing 
extends to all FAS 109 amounts, we find that AFUDC equity and flow-
through items are beyond the scope of this proceeding. Order No. 864 
addresses only the treatment of excess and deficient ADIT resulting 
from the Tax Cuts and Jobs Act (and future tax rate changes) for 
public utilities with transmission formula rates, not AFUDC equity 
and flow-through items.
    \66\ See also BG&E, 2020 WL 1482394, at 2 (finding that ``the 
`next rate case following applicability of the rule' is the `next 
rate case' after the utility has incurred an item (either a cost or 
a benefit) requiring `normalization' under Order No. 144 and [the 
Commission's 1993 accounting guidance in Docket No. AI93-5-000], not 
counting periods in which a rate case or settlement had itself 
normalized the treatment of the item (or adequately addressed its 
normalization)'').
    \67\ Order No. 864, 169 FERC ] 61,139 at P 51.
    \68\ Id. PP 42, 86, 90.
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    33. In the Exelon Orders, contrary to Exelon Companies' contention, 
the Commission did not require Exelon Companies to amortize prior 
recorded FAS 109 regulatory asset amounts even though Exelon Companies' 
transmission formula rates contained no mechanism to pass them 
through.\69\ Instead, the Commission did not permit Exelon Companies to 
recover the full amount of those regulatory assets because Exelon 
Companies failed the next rate case requirement of Order No. 144. 
Specifically, the Commission determined that the transmission formula 
rates that resulted from the settlement of those proceedings accounted 
for ADIT; the Commission interpreted the Exelon Companies' transmission 
formula rates to explicitly exclude recovery of this past deficient 
ADIT. In supporting this conclusion, the Commission found that Exelon 
Companies' ``initial [f]ormula [r]ate filings included line items that 
expressly excluded recovery of these [deficient ADIT] items in their 
[f]ormula [r]ates.'' \70\ The Commission therefore determined that 
Exelon Companies have not sought to recover this past deficient ADIT in 
their next rate proceedings after Order No. 144 \71\ and failed to 
expressly reserve this issue in the settlements of those 
proceedings.\72\
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    \69\ Exelon Companies Rehearing at 12.
    \70\ Commonwealth Edison, 164 FERC ] 61,172 at P 111.
    \71\ Id. (``Exelon Companies thus failed to comply with the 
requirement in Order No. 144 that recovery should be addressed in 
the `next rate case' at the time they initially filed their Formula 
Rates.'').
    \72\ Id. P 112 (``Moreover, because Exelon Companies did not 
request recovery of FAS 109 amounts in their initial filings of 
their Formula Rate cases, Exelon Companies could not have deferred 
recovery of FAS 109 amounts for the next rate case unless they 
expressly addressed this issue in the settlements of their Formula 
Rates.'').
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    34. The Commission also explained that the next rate case 
requirement in Order No. 144 works in conjunction with the reasonable 
period of time requirement.\73\ Accordingly, the Commission determined 
that because Exelon Companies failed the next rate case requirement, 
they also necessarily failed the reasonable period of time 
requirement.\74\ The Commission also rejected Exelon Companies' attempt 
to recover the full amount of past ADIT because Exelon Companies waited 
longer than seven years to seek recovery of this past deficient ADIT 
and failed to offer an adequate reason for the delay.\75\
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    \73\ Id. P 113.
    \74\ Id. (``Exelon Companies failed to comply with the directive 
in Order No. 144 to begin the process of adjusting its deferred tax 
deficiencies and excesses `so that, within a reasonable period of 
time to be determined on a case-by-case basis, [it would] be 
operating under a full normalization policy.' '').
    \75\ Id. (``Exelon Companies still do not explain why they 
waited an additional nine and a half years to make their February 
23, 2018 filings [after the end of the rate moratorium in the 
settlement agreement]. And Exelon Companies' apparent conclusion 
that they could hold these amounts in reserve indefinitely conflicts 
with the language of Order No. 144.''); see also BG&E, 2020 WL 
1482394, at 6 (finding that the Commission acted reasonably in 
determining that Baltimore Gas & Electric Company's 12 year delay 
was ``far longer'' than the four and seven year delays previously 
accepted by the Commission and that Baltimore Gas & Electric Company 
``failed to offer an adequate reason for the delay'').
---------------------------------------------------------------------------

    35. The requirements of Order No. 864 have no bearing on Exelon 
Companies' efforts to recover past deficient ADIT that pre-dated the 
existence of their transmission formula rates. The Commission's 
requirements in Order No. 864 resolve the issue that most public 
utility transmission formula rates were not designed to properly 
address excess or deficient ADIT resulting from the Tax Cuts and Jobs 
Act and future tax rate changes. The original framework adopted in 
Order No. 144, which was issued when all public utilities used 
transmission stated rates, required public utilities to address excess 
and deficient ADIT within a reasonable period of time in their next 
rate cases.\76\ However, public utilities with transmission formula 
rates no longer file traditional rate cases as contemplated by Order 
No. 144. Thus, prior to Order No. 864, most public utilities with 
transmission formula rates were required to make an FPA section 205 
filing to seek approval to flow through excess or deficient ADIT in

[[Page 27687]]

their transmission formula rates.\77\ While this requirement relates to 
regulatory assets and regulatory liabilities more broadly, in the 
context of tax rate changes and Order No. 144, it functioned as the way 
in which public utilities with transmission formula rates complied with 
Order No. 144 and the Commission's regulations. Specifically, it 
represented the way that a public utility with transmission formula 
rates began ``the process of making up deficiencies in or eliminating 
excesses in their deferred tax so that, within a reasonable period of 
time . . . they will be operating under a full normalization policy'' 
following a tax rate change.\78\ If the Commission accepted such a 
filing by a public utility with transmission formula rates, then that 
public utility would have a Commission-approved ratemaking method for 
that specific tax rate change consistent with the Commission's 
regulations. However, this approach generally required such filings to 
seek approval of a new ratemaking method after each tax rate change by 
public utilities with transmission formula rates.
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    \76\ See Order No. 144, FERC Stats. & Regs. ] 30,254 at 31,560.
    \77\ PJM Interconnection, L.L.C., 165 FERC ] 61,275, at P 28 
(2018).
    \78\ Order No. 144, FERC Stats. & Regs. ] 30,254 at 31,560.
---------------------------------------------------------------------------

    36. As a result of Order No. 864, public utilities with 
transmission formula rates are no longer required to make a filing 
pursuant to FPA section 205 to obtain Commission approval prior to 
including excess and deficient ADIT in their transmission formula rates 
following future changes to tax rates.\79\ Instead, the Commission 
required public utilities with transmission formula rates to implement 
certain mechanisms that accurately reflect excess or deficient ADIT in 
their formula rates, which will serve as the ratemaking method for the 
Tax Cuts and Jobs Act and all future tax rate changes and ensure that 
excess and deficient ADIT are automatically included in a public 
utility's transmission formula rate following a tax rate change.
---------------------------------------------------------------------------

    \79\ Order No. 864, 169 FERC ] 61,139 at P 48.
---------------------------------------------------------------------------

    37. The Commission's requirements in Order No. 864 apply equally to 
Exelon Companies and all other public utilities with transmission 
formula rates. Similar to most public utilities with transmission 
formula rates at the time of the Tax Cuts and Jobs Act, Exelon 
Companies lacked a mechanism in its formula rates and did not have a 
Commission-approved ratemaking method to address excess and deficient 
ADIT resulting from the Tax Cuts and Jobs Act.\80\ Thus, public 
utilities with transmission formula rates, including Exelon Companies, 
are required under Order No. 864 to return the full amount of excess 
ADIT and recover the full amount deficient ADIT resulting from the Tax 
Cuts and Jobs Act. It is appropriate to return the full amount of 
excess and deficient ADIT resulting from the Tax Cuts and Jobs Act 
because Order No. 144 provides that public utilities will have a 
reasonable amount of time to begin accounting for excess or deficient 
ADIT if such public utilities lack a Commission-approved ratemaking 
method for addressing excess and deficient ADIT. By complying with 
Order No. 864, all public utilities with transmission formula rates 
will ``begin the process of making up deficiencies in or eliminating 
excesses in their deferred tax so that, within a reasonable period of 
time . . . they will be operating under a full normalization policy'' 
following the Tax Cuts and Jobs Act in accordance with Order No. 
144.\81\ These public utilities will also have a Commission-approved 
ratemaking method, and therefore, will comply with the Commission's 
regulations.\82\ Additionally, because excess and deficient ADIT will 
be automatically included in transmission formula rates following 
future tax rate changes pursuant to this Commission-approved ratemaking 
method, public utilities with transmission formula rates will be able 
to maintain compliance with Order No. 144 and the Commission's 
regulations going forward without seeking additional Commission 
approval through an FPA section 205 filing.
---------------------------------------------------------------------------

    \80\ In its rehearing request, Exelon Companies argue that the 
Commission's rate base justification for treating public utilities 
with transmission formula rates differently than those with 
transmission stated rates is inapplicable to them because Exelon 
Companies' formula rates have always contained ``an adjustment to 
rate base to subtract FAS 109 amounts from the deferred tax 
calculation.'' Exelon Companies Rehearing at 10-11. To the extent 
Exelon Companies' assertion is true, we agree that this rate base 
explanation is inapplicable to Exelon Companies. However, as 
discussed elsewhere, Exelon Companies failed to seek recovery of 
past deficient ADIT within a reasonable period of time in its next 
rate case. It is for this reason that Exelon Companies are unable to 
recover past deficient ADIT. This is also distinguishable from the 
circumstances surrounding the Commission's issuance of Order No. 
864, as discussed elsewhere. See supra at PP 32-37.
    \81\ Order No. 144, FERC Stats. & Regs. ] 30,254 at 31,560.
    \82\ 18 CFR 35.24(c)(2) and (3).
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III. Document Availability

    38. 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 www.ferc.gov. At this time, 
the Commission has suspended access to the Commission's Public 
Reference Room due to the President's March 13, 2020 proclamation 
declaring a National Emergency concerning the Novel Coronavirus Disease 
(COVID-19).
    39. From the Commission's Home Page on the internet, this 
information is available on eLibrary. 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.
    40. User assistance is available for eLibrary and the Commission's 
website during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or email at 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
public.referenceroom@ferc.gov.

IV. Dates

    41. The effective date of the document published on November 27, 
2019 (84 FR 65281), is confirmed: January 27, 2020.

    By the Commission.

    Issued: April 16, 2020.
Kimberly D. Bose,
Secretary.
[FR Doc. 2020-08634 Filed 5-8-20; 8:45 am]
 BILLING CODE 6717-01-P


