Mich. Admin. Code R. 460.302

Current through Vol. 24-21, December 1, 2024

Section R. 460.302 - Definitions

Rule 2. As used in these rules:

(a) "Acquire" or "acquisition" means to obtain an interest in a jurisdictional regulated utility through a transaction that results in a transfer of control of the jurisdictional regulated utility. An underwriter or broker-dealer that obtains an interest in securities solely for the purpose of facilitating a distribution of securities does not thereby acquire or make an acquisition of an interest in the jurisdictional regulated utility for purposes of MCL 460.6q and these rules.

(b) "Applicant" means any person seeking approval from the commission under MCL 460.6q and these rules.

(c) "Asset" means real and personal property, including natural gas and electric distribution facilities, electric transmission and generation facilities, and natural gas transmission and storage facilities, owned by a jurisdictional regulated utility and used to directly provide natural gas or electric utility services to end users at rates regulated by the commission. For purposes of these standards, asset does not include accounts receivable.

(d) "Assign" or "assignment" means the transfer to another person of any of the interest held in an asset or assets.

(e) "Encumber" or "encumbrance" or "encumber assets" means subjecting an asset or assets of a jurisdictional regulated utility to a lien or security interest for purposes other than to facilitate, directly or indirectly, financing of utility operations, or for purposes other than to facilitate, directly or indirectly, the provision of utility service. It does not include a refinancing of existing secured debts or securities to the extent that the amount refinanced is equal to or less than the amount of the existing secured debt or security.

(f) "Jurisdictional regulated utility" means a utility whose rates are regulated by the commission. Jurisdictional regulated utility does not include a telecommunications provider as defined in the Michigan telecommunications act, 1991 PA 179, MCL 484.2101 to 484.2604, or a motor carrier as defined in the motor carrier act, 1933 PA 254, MCL 475.1 to 479.43.

(g) "Merge" or "merger" means the combination or consolidation of a jurisdictional regulated utility with another person in a manner that results in a transfer of control of the jurisdictional regulated utility.

(h) "Original book cost" means the amount at which an asset is recorded in the books of accounts of the jurisdictional regulated utility, plus additions, without deduction of related provisions for accrued depreciation, amortization, securitization, write-downs, impairments, or for other purposes.

(i) "Person" means an individual, corporation, association, partnership, utility, or any other private or public entity. Person includes a jurisdictional regulated utility.

(j) "Normal course of business" means a transaction that is related to the transfer, sale, assignment, or encumbrance of assets and that satisfies any 1 of the following criteria:

(i) With respect to utilities having 500,000 or more retail customers, a transaction that involves the transfer, sale, or assignment of assets having an original book cost equal to or less than the dollar threshold identified in the following table:

Transaction Date	Dollar Threshold
Prior to December 31, 2020	$50 million
January 1, 2021 to December 31, 2030	$65 million
January 1, 2031 to December 31, 2040	$85 million
January 1, 2041 to December 31, 2050	$105 million
January 1, 2051 to December 31, 2060	$135 million
January 1, 2061 to December 31, 2070	$175 million
January 1, 2071 to December 31, 2080	$225 million
January 1, 2081 and beyond	$275 million

(ii) With respect to utilities having fewer than 500,000 retail customers, a transaction that involves the transfer, sale, or assignment of assets having an original book cost equal to or less than the dollar threshold identified in the following table:

Transaction Date	Dollar Threshold
Prior to December 31, 2020	$10 million
January 1, 2021 to December 31, 2030	$12.8 million
January 1, 2031 to December 31, 2040	$16.4 million
January 1, 2041 to December 31, 2050	$21 million
January 1, 2051 to December 31, 2060	$26.9 million
January 1, 2061 to December 31, 2070	$34.4 million
January 1, 2071 to December 31, 2080	$44 million
January 1, 2081 and beyond	$56.3 million

(iii) With respect to all utilities, a transaction, regardless of amount, that constitutes a sale, assignment, transfer, or encumbrance of interests in fuel, natural gas, purchased power, electric or natural gas transmission capacity, natural gas storage services, or other commodities, if such transaction is otherwise subject to review for reasonableness and prudence in a gas cost recovery or power supply cost recovery proceeding, or a successor thereof.

(iv) With respect to cooperative utilities whose rates are regulated by the commission, an encumbrance of assets in which the total aggregate proceeds to the jurisdictional regulated utility from all of the currently outstanding encumbrances immediately following the encumbrance will not exceed 5 million dollars.

A transaction described in subdivision (j) (i), (ii), (iii), or (iv) of this rule shall not be classified as in the normal course of business if the transaction, either directly or indirectly, is in connection with the acquisition, transfer of control, or merger of a jurisdictional regulated utility, or if the transaction involves the transfer or sale of an electrical generating plant that has a total installed generating capacity (nameplate rating) of more than 20 megawatts.

(k) "Sell assets" means the transfer to another person of any of the interest in an asset or assets.

(l) "Transaction" means an acquisition, merger, transfer of control, sale, assignment, transfer, or encumbrance as provided in R 460.301.

(m) "Transaction date," for purposes of the tables found in subdivision (j) (i) and (ii) of this rule only, means the date on which a jurisdictional regulated utility and another party to the transaction execute a final agreement for the transfer, sale, or assignment of an asset of the jurisdictional regulated utility.

(n) "Transfer assets" means the sale or assignment to another person of any of the interest in an asset or assets. It does not include the transfer of pension plan or other retirement assets done to facilitate a change in the management of such assets.

(o) "Transfer of control" means the transfer to another person of the power to direct or cause the direction of the management and policies of a jurisdictional regulated utility, whether through the ownership of voting interests or voting securities, by contract including acquisition of assets, or otherwise. Transfer of control is presumed to occur under either of the following conditions:

(i) After the transfer, the transferee, by formal or informal arrangement, device, or understanding, directly or indirectly, owns, controls, holds with the right to vote, or holds proxies representing 50% or more of the outstanding voting interests or voting securities that are entitled to elect a majority of the board of directors or other governing body of the jurisdictional regulated utility.

(ii) After the transfer, the transferee, by formal or informal arrangement, device, or understanding, directly or indirectly, owns, controls, holds with the right to vote, or holds proxies representing 20% or more of the outstanding voting interests or voting securities that are entitled to elect a majority of the board of directors or other governing body of the jurisdictional regulated utility, if such transferee is, after the transfer, the largest holder of such voting interests. The presumption of a transfer of control described in subdivision (o) (i) and (ii) of this rule may be rebutted.

Mich. Admin. Code R. 460.302

2011 AACS