| (6) After the Collecting Utility, the Transferor Company (if different from the Collecting Utility), and Transferee Company have filed a request for a commission review of the agreements filed pursuant to subsection (d)(1)(A) or (d)(3) of this section: (A) The commission staff will recommend approval, amendment, or disapproval of the agreements within 60 days of receipt of the request. (B) If the commission staff recommends approval, and no motions for intervention have been filed, the commission shall promptly approve the request; (C) If the commission staff recommends amendment, within 14 days after staff's recommendation the filing parties shall either file amended agreements incorporating the amendments, request review of alternative language, or request a hearing. (D) If the applicants file amended agreements incorporating the staff recommendations, and there is no motion to intervene filed, the commission shall promptly approve the amended request. (E) If the commission staff recommends denial, if the applicants request a hearing, or if the applicants do not file amended agreements incorporating staff's recommendations within 14 days pursuant to subsection (d)(6)(C), the request shall be docketed as a contested case proceeding to approve, modify, or reject the agreements. The commission will issue an order within 120 days of the initiation of a contested case proceeding. In considering whether or not to approve the decommissioning funds collection agreement, the commission may consider the impact on customers including any impact on federal income taxes related to the nuclear decommissioning trust funds, the ability of the Transferee Company to administer the trust, any investment restrictions on the Transferee Company, the ability of the commission to enforce its rules over the administrator of the funds, and any other relevant factors. (F) An agreement filed pursuant to subsection (d)(1)(A) and (d)(3) of this section shall be filed at the commission within 15 days of the execution of the agreement. (7) Absent a commission order to the contrary, the Collecting Utility shall be the administrator of the nuclear decommissioning trust funds established or maintained by the Transferee Company and shall be responsible for administering the funds in accordance with subsection (e) of this section. (8) Upon the issuance of an order from the commission releasing the Collecting Utility from the obligation to administer the nuclear decommissioning trust funds, the Transferee Company that owns the nuclear decommissioning trust funds shall become the administrator of such funds in accordance with subsection (e) of this section. (e) Administration of the Nuclear Decommissioning Trust Funds. (1) Duties of funds administrator. (A) Each funds administrator of Nuclear Decommissioning Trust Funds shall assure that the Nuclear Decommissioning Trust Funds are managed so that the funds are secure and are invested consistent with the goals in this subsection; and so that the funds provided from the Collecting Utility's nonbypassable charge, plus the amounts earned from investment of the funds, will be available at the time of decommissioning. (B) The funds administrator shall appoint one or more institutional trustees and may appoint one or more investment managers. Unless otherwise specified in paragraph (2) of this subsection, the Texas Trust Code controls the administration and management of the Nuclear Decommissioning Trust Funds, except that the appointed trustees need not be qualified to exercise trust powers in Texas. If the Collecting Utility is the acting funds administrator, the selection or replacement of such trustees and investment managers shall be made in consultation with the Transferee Company. The agreements with such trustees and investment managers shall require that any reports regarding the trust funds given to the fund administrator shall also be given to the Transferee Company, if different from the fund administrator. (C) The funds administrator shall retain the right to replace the trustees with or without cause. In appointing a trustee, the funds administrator shall have the following duties, which will be of a continuing nature: (i) A duty to determine whether the trustee's fee schedule for administering the trust is reasonable, when compared to other institutional trustees rendering similar services, and meets the requirement of paragraph (3)(B)(i) of this subsection; (ii) A duty to investigate and determine whether the past administration of trusts by the trustee has been reasonable; (iii) A duty to investigate and determine whether the financial stability and strength of the trustee is adequate; (iv) A duty to investigate and determine whether the trustee has complied with the trust agreement and this section as it relates to trustees; and, (v) A duty to investigate any other factors which may bear on whether the trustee is suitable. (D) The funds administrator shall retain the right to replace the investment managers with or without cause. In appointing an investment manager, the funds administrator shall have the following duties, which will be of a continuing nature: (i) A duty to determine whether the investment manager's fee schedule for investment management services is reasonable, when compared to other such managers, and meets the requirement of paragraph (3)(B)(i) of this subsection; (ii) A duty to investigate and determine whether the past performance of the investment manager in managing investments has been reasonable; (iii) A duty to investigate and determine whether the financial stability and strength of the investment manager is adequate for purposes of liability; (iv) A duty to investigate and determine whether the investment manager has complied with the investment management agreement and this section as it relates to investments; and, (v) A duty to investigate any other factors which may bear on whether the investment manager is suitable. (2) Agreements between the fund administrator and the institutional trustee or investment manager. (A) The fund administrator shall execute an agreement with each institutional trustee. The agreement shall include the restrictions in subparagraphs (A)(i)-(v) of this paragraph and may include additional restrictions on the trustee. A fund administrator shall not grant such trustee powers that are greater than those provided to trustees under the Texas Trust Code or that are inconsistent with the limitations of this section. (i) The interest earned on the corpus of the trust becomes part of the trust corpus. A trustee owes the same duties with regard to the interest earned on the corpus as are owed with regard to the corpus of the trust. (ii) A trustee shall have a continuing duty to review the trust portfolio for compliance with investment guidelines and governing regulations. (iii) A trustee shall not lend funds from the decommissioning trust to itself, its officers, or its directors. (iv) A trustee shall not invest or reinvest decommissioning trust funds in instruments issued by the trustee, except for time deposits, demand deposits, or money market accounts of the trustee. However, investments of a decommissioning trust may include mutual funds that contain securities issued by the trustee if the securities of the trustee constitute no more than five percent of the fair market value of the assets of such mutual funds at the time of the investment. (v) The agreement shall comply with all applicable requirements of the Nuclear Regulatory Commission. (B) The fund administrator shall execute an agreement with each investment manager. (If the trustee performs investment management functions, the contractual provisions governing those functions must be included in either the trust agreement or a separate investment management agreement.) The agreement shall include the restrictions set forth in subparagraphs (B)(i)-(v) of this paragraph and may include additional restrictions on the manager. A funds administrator shall not grant the manager powers that are greater than those provided to trustees under the Texas Trust Code or that are inconsistent with the limitations of this section. (i) An investment manager shall, in investing and reinvesting the funds in the trust, comply with paragraph (3) of this subsection. (ii) The interest earned on the corpus of the trust becomes part of the trust corpus. An investment manager owes the same duties with regard to the interest earned on the corpus as are owed with regard to the corpus of the trust. (iii) An investment manager shall have a continuing duty to review the trust portfolio to determine the appropriateness of the investments. (iv) An investment manager shall not invest funds from the decommissioning trust with itself, its officers, or its directors. Cont'd... |
