Blanket Authorization Under FPA Section 203, 41640-41644 [E7-14619]

Download as PDF 41640 Proposed Rules Federal Register Vol. 72, No. 146 Tuesday, July 31, 2007 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 33 [Docket No. RM07–21–000] I. Introduction Blanket Authorization Under FPA Section 203 July 20, 2007. Federal Energy Regulatory Commission, DOE. ACTION: Notice of proposed rulemaking. AGENCY: SUMMARY: The Federal Energy Regulatory Commission (Commission) is proposing to amend its regulations pursuant to section 203 of the Federal Power Act (FPA) to provide for a limited blanket authorization under FPA section 203(a)(1). The Commission seeks public comment on the rules and amended regulations proposed herein. The Commission also seeks comment on whether it should grant an additional blanket authorization for certain acquisitions or dispositions of jurisdictional contracts. DATES: Comments are due August 30, 2007. You may submit comments identified in Docket No. RM07–21–000, by one of the following methods: Agency Web Site: http://www.ferc.gov. Follow the instructions for submitting comments via the eFiling link found in the Comment Procedures section of the preamble. Mail: Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to the Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. Please refer to the Comment Procedures section of the preamble for additional information on how to file paper comments. FOR FURTHER INFORMATION CONTACT: Carla Urquhart (Legal Information), Office of the General Counsel, Federal rmajette on PROD1PC64 with PROPOSALS ADDRESSES: VerDate Aug<31>2005 14:56 Jul 30, 2007 Jkt 211001 Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502–8496. Roshini Thayaparan (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502–6857. Andrew P. Mosier, Jr. (Technical Information), Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502–6274. SUPPLEMENTARY INFORMATION: 1. Pursuant to section 203 of the Federal Power Act (FPA),1 the Commission is proposing to amend its regulations to revise Part 33 of Title 18 of the Code of Federal Regulations (CFR) to provide for an additional blanket authorization under FPA section 203(a)(1). The Commission seeks public comment on the proposed rule. II. Background 2. EPAct 2005 expanded the scope of the corporate transactions subject to the Commission’s review under section 203 of the FPA. Among other things, amended section 203: (1) Expands the Commission’s review authority to include authority over certain holding company mergers and acquisitions, as well as certain public utility acquisitions of generating facilities; (2) requires that, prior to approving a disposition under section 203, the Commission must determine that the transaction would not result in inappropriate cross-subsidization of non-utility affiliates or the pledge or encumbrance of utility assets; 2 and (3) imposes statutory deadlines for acting on mergers and other jurisdictional transactions. 3. Through the Order No. 669 rulemaking proceeding, the Commission promulgated regulations adopting certain modifications to 18 CFR 2.26 1 16 U.S.C. 824b, amended by Energy Policy Act of 2005, Pub. L. 109–58, 1289, 119 Stat. 594, 982– 83 (2005) (EPAct 2005). 2 Section 203(a)(4) is not an absolute prohibition on the cross-subsidization of a non-utility associate company or the pledge or encumbrance of utility assets for the benefit of an associate company. If the Commission determines that the crosssubsidization, pledge or encumbrance will be consistent with the public interest, such action may be permitted. PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 and Part 33 to implement amended section 203.3 The Commission also provided blanket authorizations for certain transactions subject to section 203. These blanket authorizations were crafted to ensure that there is no harm to captive utility customers, but sought to accommodate investments in the electric utility industry and market liquidity. Some commenters in the rulemaking proceeding argued that the Commission should have granted additional blanket authorizations that would benefit the marketplace and not harm customers. Other commenters argued that the Commission should adopt additional generic rules to guard against inappropriate crosssubsidization associated with the mergers. Yet other commenters argued that the Commission should modify its competitive analysis for mergers, which has been in place for 10 years. The Commission stated that it would reevaluate these and other issues at a future technical conference on the Commission’s section 203 regulations as well as certain issues raised in the Order No. 667 rulemaking proceeding implementing the Public Utility Holding Company Act of 2005.4 4. On December 7, 2006, the Commission held a technical conference (December 7 Technical Conference) to discuss several of the issues that arose in the Order No. 667 and Order No. 669 rulemaking proceedings. The December 7 Technical Conference discussed a range of topics. The first panel discussed whether there are additional 3 Transactions Subject to FPA Section 203, Order No. 669, 71 FR 1348 (Jan. 6, 2006), FERC Stats. & Regs. ¶ 31,200 (2005), order on reh’g, Order No. 669–A, 71 FR 28422 (May 16, 2006), FERC Stats. & Regs. ¶ 31,214, order on reh’g, Order No. 669–B, 71 FR 42579 (July 27, 2006), FERC Stats. & Regs. ¶ 31,225 (2006). 4 EPAct 2005, Pub. L. 109–58, 1261, et seq., 119 Stat. 594, 972–78 (2005) (PUHCA 2005). See also Repeal of the Public Utility Holding Company Act of 1935 and Enactment of the Public Utility Holding Company Act of 2005, Order No. 667, 70 FR 75592 (Dec. 20, 2005), FERC Stats. & Regs. ¶ 31,197 (2005), order on reh’g, Order No. 667–A, 71 FR 28446 (May 16, 2006), FERC Stats. & Regs. ¶ 31,213, order on reh’g, Order No. 667–B, 71 FR 42750 (July 28, 2006), FERC Stats. & Regs. ¶ 31,224 (2006), order on reh’g, Order No. 667–C, 72 FR 8277 (Feb. 26, 2007), 118 FERC ¶ 61,133 (2007). These issues included matters related to inappropriate cross-subsidization and pledges or encumbrance of utility assets, whether our current merger policy should be revised, and whether additional exemptions, different reporting requirements, or other regulatory action (under PUHCA 2005 or the FPA or Natural Gas Act (NGA)) needed to be considered. E:\FR\FM\31JYP1.SGM 31JYP1 Federal Register / Vol. 72, No. 146 / Tuesday, July 31, 2007 / Proposed Rules rmajette on PROD1PC64 with PROPOSALS actions, under the FPA or the NGA, that the Commission should take to supplement the protections against cross-subsidization that were implemented in the Order No. 667 and Order No. 669 rulemaking proceedings. The second panel discussed whether, and if so how, the Commission should modify its Cash Management Rule 5 in light of PUHCA 2005 and whether the Commission should codify specific safeguards that must be adopted for cash management programs and money pool agreements and transactions. The third panel discussed whether modifications to the specific exemptions, waivers and blanket authorizations set forth in the Order No. 667 and Order No. 669 rulemaking proceedings are warranted. Post-technical conference comments were accepted. 5. On March 8, 2007, the Commission held a second technical conference (March 8 Technical Conference) to discuss whether the Commission’s section 203 policy should be revised and, in particular, whether the Commission’s Appendix A merger analysis is sufficient to identify market power concerns in today’s electric industry market environment. The first panel discussed whether the Appendix A analysis is appropriate to analyze a merger’s effect on competition, given the changes that have occurred in the industry (e.g., the development of Regional Transmission Organizations (RTOs)) and statutory changes (e.g., as a result of the repeal of the Public Utility Holding Company Act of 1935 6 and new authorities given to the Commission in EPAct 2005 7). The second panel assessed the factors the Commission uses in reviewing mergers and the coordination between the Commission and other agencies (including state commissions) with merger review responsibility. 6. This Notice of Proposed Rulemaking is one of three actions being taken based on the Commission’s experience implementing amended FPA section 203 and PUHCA 2005, as well as the record from the Commission’s December 7 and March 8 Technical Conferences regarding section 203 and PUHCA 2005. In this docket, the Commission is proposing to grant an additional blanket authorization for certain dispositions of jurisdictional facilities under FPA section 203(a)(1). In 5 Regulation of Cash Management Practices, Order No. 634, 68 FR 40500 (July 8, 2003), FERC Stats. & Regs. ¶ 31,145, revised, Order No. 634–A, 68 FR 61993 (Oct. 31, 2003), FERC Stats. & Regs. ¶ 31,152 (2003) (Cash Management Rule). 6 16 U.S.C. 79a et seq. (PUHCA 1935). 7 These include new authorities through amended FPA section 203 as well as PUHCA 2005. VerDate Aug<31>2005 14:56 Jul 30, 2007 Jkt 211001 addition, in separate orders, the Commission is concurrently issuing a section 203 Supplemental Policy Statement 8 and a Notice of Proposed Rulemaking proposing to codify restrictions on affiliate transactions between franchised public utilities with captive customers and their marketregulated power sales affiliates or nonutility affiliates.9 The proposed changes to the regulations in this proceeding are discussed below. III. Discussion 7. The Commission proposes to amend 18 CFR part 33 (Applications Under Federal Power Act Section 203) to provide for an additional blanket authorization under FPA section 203(a)(1). 8. In the Order No. 669 rulemaking proceeding, the Commission set forth several blanket authorizations under which participants to FPA section 203jurisdictional transactions need not seek ex ante Commission approval. These authorizations included a blanket authorization under section 203(a)(2) under which certain holding companies may acquire the voting securities of a public utility if the acquisition would give the holding company less than 10 percent ownership of the outstanding voting securities of such public utility.10 The Commission found in Order No. 669 that several classes of transactions covered by amended section 203(a)(2) would not harm competition or captive customers, including acquisitions of voting securities that would give the acquiring entity not more than 9.99 percent ownership of the outstanding voting securities of the acquired utility or company.11 While parties sought an additional blanket authorization under 8 FPA Section 203 Supplemental Policy Statement, 119 FERC ¶ 61,060 (2007) (issued in Docket No. PL07–1–000). 9 Cross-Subsidization Restrictions on Affiliate Transactions, 119 FERC ¶ 61,061 (2007) (issued in Docket No. RM07–15–000). 10 The section 203(a)(2) blanket authorization states: Any holding company in a holding company system that includes a transmitting utility or an electric utility is granted a blanket authorization under section 203(a)(2) of the Federal Power Act to purchase, acquire, or take: * * * (ii) Any voting security in a transmitting utility, an electric utility company, or a holding company in a holding company system that includes a transmitting utility or an electric utility company if, after the acquisition, the holding company will own less than 10 percent of the outstanding voting securities. 18 CFR 33.1(c)(2)(ii). Because a ‘‘transmitting utility’’ or ‘‘electric utility company’’ may also be a ‘‘public utility’’ as defined in the FPA, the public utility may need to obtain separate authorization for the same transaction under FPA section 203(a)(1), which requires authorization for public utilities to dispose of jurisdictional facilities. 11 Order No. 669, FERC Stats. & Regs. ¶ 31,200 at P 141. PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 41641 section 203(a)(1) to parallel that provided under section 203(a)(2), the Commission could not make a determination with respect to section 203(a)(1) at that time. Specifically, with regard to the request for parallel blanket authorization under section 203(a)(1) for equity ownership interests in public utilities that result in a change in control over the underlying public utility, we found in Order No. 669–A that such a blanket authorization would not address the ‘‘[c]oncerns with control, markets and protections of captive customers or customers receiving transmission service over jurisdictional transmission facilities’’ 12 implicated by section 203(a)(1). However, in Order No. 669–B, in response to comments that the lack of a parallel section 203(a)(1) authorization could thwart utility investment, the Commission stated that this issue would be included in the forthcoming technical conferences.13 9. Based on the record from the technical conferences (including both oral and written comments) and the Commission’s experience under amended section 203 to date, the Commission proposes to provide for a limited blanket authorization to public utilities under section 203(a)(1). This blanket authorization would work in conjunction with the blanket authorization granted to holding companies under section 203(a)(2) in 18 CFR 33.1(c)(2)(ii).14 Under this limited blanket authorization, a public utility would be pre-authorized to dispose of less than 10 percent of its voting securities to a public utility holding company but only if, after the disposition, the holding company and any associate company in aggregate will own less than 10 percent of that public utility. We note that this proposed blanket authorization would not entirely ‘‘parallel’’ the section 203(a)(2) authorization since the section 203(a)(2) authorization does not contain the ‘‘in aggregate’’ limitation. However, we believe this limitation would provide better protection against possible transfer of ‘‘control’’ of a public utility. We seek comment on this limitation. 10. The Commission believes that the disposition of such limited voting interests (less than 10 percent), with the proposed ‘‘in aggregate’’ restriction and the existing reporting requirements 12 Order No. 669–A, FERC Stats. & Regs. ¶ 31,214 at P 103. 13 Order No. 669–B, FERC Stats. & Regs. ¶ 31,225 at P 26. 14 See supra note 10. E:\FR\FM\31JYP1.SGM 31JYP1 41642 Federal Register / Vol. 72, No. 146 / Tuesday, July 31, 2007 / Proposed Rules rmajette on PROD1PC64 with PROPOSALS applicable to holding companies,15 will not harm competition or captive customers. Moreover, this 10 percent threshold is consistent with the definition of ‘‘holding company’’ under section 1262(8)(A) of PUHCA 2005. Under that definition, any company that has the power to vote 10 percent or more of the securities of a public utility company (or a holding company of a public utility company) triggers holding company status and thus is presumed to raise sufficient concerns about controlling influence over a subsidiary public utility that regulatory oversight is needed. The 10 percent threshold is also consistent with the blanket authorization granted under section 203(a)(2) in the Order No. 669 rulemaking proceeding, under which holding companies are pre-authorized to acquire up to 9.99 percent of voting securities of a public utility. 11. As noted, as part of the existing ‘‘parallel’’ blanket authorization under section 203(a)(2), the Commission already requires the holding company to provide to the Commission copies of any Schedule 13D, Schedule 13G and Form 13F at the same time and on the same basis, as filed with the SEC in connection with any securities purchased, acquired or taken pursuant to the blanket authorization under section 203(a)(2) provided in § 33.1(c)(2) of the Commission’s regulations.16 Importantly, a Schedule 13 filer must acquire the subject securities ‘‘in the ordinary course of his business and not with the purpose nor with the effect of changing or influencing the control of the issuer, nor in connection with or as a participant in any transaction having such purpose or effect’’ over entities whose securities it holds.17 It is also required to file a notification with the SEC of any acquisition of beneficial ownership of more than five percent of a class of equity securities.18 Because we already receive these filings from the holding company, we propose not to require additional reporting on the part of individual public utilities to duplicate the reporting of information 15 See, e.g., 18 CFR 33.1(c)(4) (requiring the filing of Securities and Exchange Commission (SEC) Schedule 13D, Schedule 13G, and Form 13F, if applicable); 18 CFR 35.42(a) (effective 60 days after publication in the Federal Register of Market-Based Rates For Wholesale Sales Of Electric Energy, Capacity And Ancillary Services By Public Utilities, Order No. 697, 72 FR 39903 (July 20, 2007), FERC Stats. & Regs. ¶ 31,252 (2007)) (requiring a notification of any change in status that would reflect a departure from the characteristics the Commission relied upon in granting market-based rate authority); 18 CFR 366.4(a) (requiring Form FERC–65 (notification of holding company status)). 16 18 CFR 33.1(c)(4). 17 17 CFR 240.13d–1(b)(1)(i). 18 17 CFR 240.13d–1(a). VerDate Aug<31>2005 14:56 Jul 30, 2007 Jkt 211001 we are already getting about the same transaction. However, we seek comments on whether any additional reporting by the public utility should be required. 12. Further, we seek comment on whether the blanket authorization under section 203(a)(1), proposed herein, should be extended to the transfer of securities by a public utility to a holding company granted a blanket authorization under section 203(a)(2) in §§ 33.1(c)(8),19 33.1(c)(9),20 and 33.1(c)(10) 21 of the Commission’s regulations. 13. In addition, certain participants to the technical conferences argue that a blanket authorization under section 203(a)(1) should be granted for transactions in which a public utility or a holding company is acquiring or disposing of a jurisdictional contract where the acquirer does not have captive customers and the contract does not convey control over the operation of a generation or transmission facility. These commenters argue that, because acquisition of these contracts cannot create competitive or rate concerns, the Commission should grant blanket authorization under section 203(a)(1) for such transactions. Because the specific request for blanket authorization may present concerns where the transferor has captive customers, we seek comment on whether the Commission should grant a generic blanket authorization under section 203(a)(1) for the acquisition or disposition of a jurisdictional contract where neither the acquirer nor transferor has captive customers and the contract does not convey control over the operation of a generation or transmission facility. IV. Information Collection Statement 14. The Office of Management and Budget’s (OMB) regulations require that OMB approve certain information collection and data retention 19 18 CFR 33.1(c)(8) (granting a blanket authorization under section 203(a)(2) to a person that is a holding company solely with respect to one or more exempt wholesale generators (EWGs), foreign utility companies (FUCOs), or qualifying facilities (QFs) to acquire the securities of additional EWGs, FUCOs, or QFs). 20 18 CFR 33.1(c)(9) (granting a conditional blanket authorization under section 203(a)(2) to a holding company, or a subsidiary of that company, that is regulated by the Board of Governors of the Federal Reserve Bank or by the Office of the Comptroller of the Currency, under the Bank Holding Company Act of 1956 as amended by the Gramm-Leach-Bliley Act of 1999). 21 18 CFR 33.1(c)(10) (granting a limited blanket authorization under section 203(a)(2) to a holding company, or a subsidiary of that company, for the acquisition of securities of a public utility or a holding company that includes a public utility for purposes of underwriting activities or hedging transactions). PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 requirements imposed by agency rules.22 Therefore, the Commission is submitting the proposed modifications to its information collections to OMB for review and approval in accordance with section 3507(d) of the Paperwork Reduction Act of 1995.23 15. The Commission is proposing amendments to the Commission’s regulations to provide for a limited blanket authorization under FPA section 203(a)(1). The regulations that the Commission proposes should have a minimal impact on the current reporting burden associated with an individual application, as they do not substantially change the filing requirements with which section 203 applicants must currently comply. Further, the Commission does not expect the total number of section 203 applications under amended section 203 to increase, but rather expects the total number of section 203 applications to decrease. This is due to the proposed rule providing for a category of jurisdictional transactions for which the Commission would not require applications seeking before-the-fact approval. This would reduce the burden on the electric industry, because it will reduce the number of applications that need to be made with the Commission. 16. Comments are solicited on the Commission’s need for this information, whether the information will have practical utility, the accuracy of provided burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing respondents’ burden, including the use of automated information techniques. Burden Estimate: The Public Reporting and records retention burden for the proposed reporting requirements and the records retention requirement are as follows. Title: FERC–519, ‘‘Application Under the Federal Power Act, Section 203’’. Action: Revised Collection. OMB Control No: 1902–0082. The applicant will not be penalized for failure to respond to this information collection unless the information collection displays a valid OMB control number or the Commission has provided justification as to why the control number should not be displayed. Respondents: Businesses or other for profit. Frequency of Responses: N/A. Necessity of the Information: This proposed rule proposes codification of a limited blanket authorization under 22 5 CFR part 1320. U.S.C. 3507(d). 23 44 E:\FR\FM\31JYP1.SGM 31JYP1 41643 Federal Register / Vol. 72, No. 146 / Tuesday, July 31, 2007 / Proposed Rules FPA section 203(a)(1), providing for a category of jurisdictional transactions under section 203(a)(1) for which the Commission would not require applications seeking before-the-fact approval. Internal Review: The Commission has conducted an internal review of the public reporting burden associated with the collection of information and assured itself, by means of internal review, that there is specific, objective support for its information burden estimate. 17. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 [Attention: Michael Miller, Office of the Executive Director, Phone (202) 502– 8415, fax (202) 273–0873, e-mail: michael.miller@ferc.gov]. Comments on the requirements of the proposed rule may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, fax (202) 395– 7285, e-mail oira_submission@omb.eop.gov]. V. Environmental Analysis 18. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.24 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment.25 The proposed regulations are categorically excluded as they address actions under section 203.26 Accordingly, no environmental assessment is necessary and none has been prepared in this NOPR. VI. Regulatory Flexibility Act Certification 19. The Regulatory Flexibility Act of 1980 (RFA) 27 requires agencies to prepare certain statements, descriptions and analyses of proposed rules that will have a significant economic impact on a substantial number of small entities.28 rmajette on PROD1PC64 with PROPOSALS 24 Regulations Implementing the National Environmental Policy Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations Preambles 1986–1990 ¶ 30,783 (1987). 25 18 CFR 380.4. 26 See 18 CFR 380.4(a)(16). 27 5 U.S.C. 601–12. 28 The RFA definition of ‘‘small entity’’ refers to the definition provided in the Small Business Act, which defines a ‘‘small business concern’’ as a business that is independently owned and operated and that is not dominant in its field of operation. VerDate Aug<31>2005 14:56 Jul 30, 2007 Jkt 211001 However, the RFA does not define ‘‘significant’’ or ‘‘substantial.’’ Instead, the RFA leaves it up to an agency to determine the effect of its regulations on small entities. 20. Most filing companies regulated by the Commission do not fall within the RFA’s definition of small entity.29 Moreover, as noted above, this proposed rule proposes codification of a limited blanket authorization under FPA section 203(a)(1), providing for a category of jurisdictional transactions under section 203(a)(1) for which the Commission would not require before-the-fact approval. Thus, filing requirements are reduced by the rule. Therefore, the Commission certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities. As a result, no regulatory flexibility analysis is required. VII. Comment Procedures 21. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due August 30, 2007. Comments must refer to Docket No. RM07–21–000, and must include the commenter’s name, the organization they represent, if applicable, and their address in their comments. Comments may be filed either in electronic or paper format. 22. Comments may be filed electronically via the eFiling link on the Commission’s Web site at http:// www.ferc.gov. The Commission accepts most standard word processing formats, but requests commenters to submit comments in a text-searchable format rather than a scanned image format. Commenters filing electronically do not need to make a paper filing. Commenters that are not able to file comments electronically must send an original and 14 copies of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. 23. All comments will be placed in the Commission’s public files and may 15 U.S.C. 632. The Small Business Size Standards component of the North American Industry Classification System defines a small electric utility as one that, including its affiliates, is primarily engaged in the generation, transmission, and/or distribution of electric energy for sale and whose total electric output for the preceding fiscal year did not exceed 4 million MWh. 13 CFR 121.201. 29 5 U.S.C. 601(3), citing to section 3 of the Small Business Act, 15 U.S.C. 632. Section 3 of the Small Business Act defines a ‘‘small-business concern’’ as a business which is independently owned and operated and which is not dominant in its field of operation. PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters. VIII. Document Availability 24. 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. 25. From the Commission’s Home Page on the Internet, this information is available in the Commission’s document management system, 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 of the docket number), in the docket number field. 26. User assistance is available for eLibrary and the Commission’s Web site during normal business hours. For assistance, please contact FERC Online Support at (202) 502–6652 (toll-free at 1–866–208–3676) or e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502– 8371, TTY (202) 502–8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov. List of Subjects in 18 CFR Part 33 Electric utilities, Reporting and recordkeeping requirements, Securities. By direction of the Commission. Kimberly D. Bose, Secretary. In consideration of the foregoing, the Commission proposes to amend Part 33, Chapter I, Title 18, Code of Federal Regulations, as follows: PART 33—APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203 1. The authority citation for part 33 continues to read as follows: Authority: 16 U.S.C. 791a–825r, 2601– 2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352; Pub. L. 109–58, 119 Stat. 594. 2. In § 33.1, paragraph (c)(12) is added to read as follows: § 33.1 Applicability, definitions, and blanket authorizations. * E:\FR\FM\31JYP1.SGM * 31JYP1 * * * 41644 Federal Register / Vol. 72, No. 146 / Tuesday, July 31, 2007 / Proposed Rules (c) * * * (12) A public utility is granted a blanket authorization under section 203(a)(1) of the Federal Power Act to transfer its outstanding voting securities to any holding company granted blanket authorizations in paragraph (c)(2)(ii) of this section if, after the transfer, the holding company and any of its associate or affiliate companies in aggregate will own less than 10 percent of the outstanding voting interests of such public utility. [FR Doc. E7–14619 Filed 7–30–07; 8:45 am] BILLING CODE 6717–01–P DEPARTMENT OF ENERGY Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502–8496. Roshini Thayaparan (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502–6857. David Hunger (Technical Information), Office of Energy Markets and Reliability, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502–8148. Stuart Fischer (Technical Information), Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, (202) 502–8517. Federal Energy Regulatory Commission SUPPLEMENTARY INFORMATION: 18 CFR Part 35 I. Introduction [Docket No. RM07–15–000] 1. Pursuant to sections 205 and 206 of the Federal Power Act (FPA),1 the Commission is proposing to amend its regulations to revise Part 35 of Title 18 of the Code of Federal Regulations (CFR) to codify affiliate restrictions that would be applicable to all power and nonpower goods and services transactions between franchised public utilities with captive customers and their marketregulated power sales and non-utility affiliates.2 The Commission’s goal in proposing these prophylactic restrictions is to protect against inappropriate cross-subsidization of market-regulated and unregulated activities by the captive customers of public utilities. The proposed restrictions are based upon those already imposed by the Commission in Cross-Subsidization Restrictions on Affiliate Transactions July 20, 2007. Federal Energy Regulatory Commission, DOE. ACTION: Notice of proposed rulemaking. rmajette on PROD1PC64 with PROPOSALS AGENCY: SUMMARY: The Federal Energy Regulatory Commission (Commission) is proposing to amend its regulations pursuant to sections 205 and 206 of the Federal Power Act to codify restrictions on affiliate transactions between franchised public utilities with captive customers and their market-regulated power sales affiliates or non-utility affiliates. The Commission seeks public comment on the rules and amended regulations proposed herein. DATES: Comment Date: Comments are due August 30, 2007. ADDRESSES: You may submit comments identified in Docket No. RM07–15–000, by one of the following methods: Agency Web site: http://www.ferc.gov. Follow the instructions for submitting comments via the eFiling link found in the Comment Procedures section of the preamble. Mail: Commenters unable to file comments electronically must mail or hand deliver an original and 14 copies of their comments to the Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street, NE., Washington, DC 20426. Please refer to the Comment Procedures section of the preamble for additional information on how to file paper comments. FOR FURTHER INFORMATION CONTACT: Carla Urquhart (Legal Information), Office of the General Counsel, Federal VerDate Aug<31>2005 14:56 Jul 30, 2007 Jkt 211001 U.S.C. 824d, 824e. purposes of this Notice of Proposed Rulemaking, a ‘‘market-regulated’’ power sales affiliate means any power sales affiliate, other than a franchised public utility, whose power sales are regulated in whole or in part on a market basis. This would include, e.g., a power marketer, exempt wholesale generator, qualifying facility or other power seller affiliate permitted to make some or all of its power sales at market-based rates. A ‘‘nonutility’’ affiliate would include an affiliate that is not in the power sales or transmission business, e.g., a coal mining company, construction company, real estate company, energy-related technology company, communications systems company, among others. While the Commission, in previous documents, has referred to both categories of affiliates as ‘‘non-regulated,’’ consistent with the discussion on cross-subsidization issues in our recent Market-Based Rate Final Rule, we believe the term ‘‘market-regulated’’ more accurately describes power sellers with market-based rates since they remain subject to regulation. Market-Based Rates For Wholesale Sales Of Electric Energy, Capacity And Ancillary Services By Public Utilities, Order No. 697, 72 FR 39903 (July 20, 2007), FERC Stats. & Regs. ¶ 31,252, at P 490 (2007) (Market-Based Rate Final Rule). Accordingly, we have modified our terminology in this Notice of Proposed Rulemaking. PO 00000 1 16 2 For Frm 00005 Fmt 4702 Sfmt 4702 the context of certain FPA section 203 3 and 205 approvals, but expand the transactions and entities to which they apply.4 The Commission seeks public comment on the proposed rules. II. Background 2. The Commission requires public utilities to implement codes of conduct with regard to affiliate transactions where an entity seeks market-based rate authorization. The Commission also imposes codes of conduct on entities seeking merger authorization under section 203 of the FPA. The discussion below summarizes the Commission’s existing practices in these two areas. A. Affiliate Transactions in the Context of Market-Based Rate Authorizations 1. Historical Approach 3. The Commission began considering proposals for market-based pricing of wholesale power sales and attendant cross-subsidy issues in 1988. At that time, the Commission acted on marketbased rate proposals filed by various wholesale suppliers on a case-by-case basis. In doing so, the Commission considered whether there was evidence of affiliate abuse or reciprocal dealing involving the seller or its affiliates.5 As the Commission explained, ‘‘[t]he 3 16 U.S.C. 824b, amended by Energy Policy Act of 2005, Pub. L. 109–58, 1289, 119 Stat. 594, 982– 83 (2005) (EPAct 2005). 4 This Notice of Proposed Rulemaking is one of three actions being taken based on the Commission’s experience implementing amended FPA section 203 and the Public Utility Holding Company Act of 2005, EPAct 2005, Pub. L. No. 109– 58, 1261, et seq., 119 Stat. 594, 972–78 (2005) (PUHCA 2005), as well as the record from the Commission’s December 7, 2006 and March 8, 2007 technical conferences regarding Section 203 and PUHCA 2005. In addition, in separate orders, the Commission is concurrently issuing a section 203 Supplemental Policy Statement, FPA Section 203 Supplemental Policy Statement, 120 FERC ¶ 61,060 (2007) (issued in Docket No. PL07–1–000), and a Notice of Proposed Rulemaking proposing to grant a limited blanket authorization for certain dispositions of jurisdictional facilities under FPA section 203(a)(1), Blanket Authorization Under FPA Section 203, 120 FERC ¶ 61,062 (2007) (issued in Docket No. RM07–21–000). 5 See Heartland Energy Services Inc., 68 FERC ¶ 61,223, at 62,062 (1994) (Heartland) (discussing the potential for abuse in the case of affiliated power marketers); Commonwealth Atlantic Limited Partnership, 51 FERC ¶ 61,368, at 62,245 (1990) (discussing potential for reciprocal dealing if a buyer agrees to pay more for power from a seller in return for that seller (or its affiliates) paying more for power from that buyer (or its affiliates)). The other three ‘‘prongs’’ of the Commission’s ‘‘four-prong’’ analysis include: (1) Whether the seller and its affiliates lack, or have adequately mitigated, market power in generation; (2) whether the seller and its affiliates lack, or have adequately mitigated, market power in transmission; and (3) whether the seller or its affiliates can erect other barriers to entry. See Market-Based Rate Final Rule, FERC Stats. & Regs. ¶ 31,252 at P 7. These additional ‘‘prongs’’ are not directly at issue in this proceeding. E:\FR\FM\31JYP1.SGM 31JYP1

Agencies

[Federal Register Volume 72, Number 146 (Tuesday, July 31, 2007)]
[Proposed Rules]
[Pages 41640-41644]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-14619]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 72, No. 146 / Tuesday, July 31, 2007 / 
Proposed Rules

[[Page 41640]]



DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 33

[Docket No. RM07-21-000]


Blanket Authorization Under FPA Section 203

July 20, 2007.

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Energy Regulatory Commission (Commission) is 
proposing to amend its regulations pursuant to section 203 of the 
Federal Power Act (FPA) to provide for a limited blanket authorization 
under FPA section 203(a)(1). The Commission seeks public comment on the 
rules and amended regulations proposed herein. The Commission also 
seeks comment on whether it should grant an additional blanket 
authorization for certain acquisitions or dispositions of 
jurisdictional contracts.

DATES: Comments are due August 30, 2007.

ADDRESSES: You may submit comments identified in Docket No. RM07-21-
000, by one of the following methods:
    Agency Web Site: http://www.ferc.gov. Follow the instructions for 
submitting comments via the eFiling link found in the Comment 
Procedures section of the preamble.
    Mail: Commenters unable to file comments electronically must mail 
or hand deliver an original and 14 copies of their comments to the 
Federal Energy Regulatory Commission, Secretary of the Commission, 888 
First Street, NE., Washington, DC 20426. Please refer to the Comment 
Procedures section of the preamble for additional information on how to 
file paper comments.

FOR FURTHER INFORMATION CONTACT: Carla Urquhart (Legal Information), 
Office of the General Counsel, Federal Energy Regulatory Commission, 
888 First Street, NE., Washington, DC 20426, (202) 502-8496.
    Roshini Thayaparan (Legal Information), Office of the General 
Counsel, Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 502-6857.
    Andrew P. Mosier, Jr. (Technical Information), Office of Energy 
Markets and Reliability, Federal Energy Regulatory Commission, 888 
First Street, NE., Washington, DC 20426, (202) 502-6274.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    1. Pursuant to section 203 of the Federal Power Act (FPA),\1\ the 
Commission is proposing to amend its regulations to revise Part 33 of 
Title 18 of the Code of Federal Regulations (CFR) to provide for an 
additional blanket authorization under FPA section 203(a)(1). The 
Commission seeks public comment on the proposed rule.
---------------------------------------------------------------------------

    \1\ 16 U.S.C. 824b, amended by Energy Policy Act of 2005, Pub. 
L. 109-58, 1289, 119 Stat. 594, 982-83 (2005) (EPAct 2005).
---------------------------------------------------------------------------

II. Background

    2. EPAct 2005 expanded the scope of the corporate transactions 
subject to the Commission's review under section 203 of the FPA. Among 
other things, amended section 203: (1) Expands the Commission's review 
authority to include authority over certain holding company mergers and 
acquisitions, as well as certain public utility acquisitions of 
generating facilities; (2) requires that, prior to approving a 
disposition under section 203, the Commission must determine that the 
transaction would not result in inappropriate cross-subsidization of 
non-utility affiliates or the pledge or encumbrance of utility assets; 
\2\ and (3) imposes statutory deadlines for acting on mergers and other 
jurisdictional transactions.
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    \2\ Section 203(a)(4) is not an absolute prohibition on the 
cross-subsidization of a non-utility associate company or the pledge 
or encumbrance of utility assets for the benefit of an associate 
company. If the Commission determines that the cross-subsidization, 
pledge or encumbrance will be consistent with the public interest, 
such action may be permitted.
---------------------------------------------------------------------------

    3. Through the Order No. 669 rulemaking proceeding, the Commission 
promulgated regulations adopting certain modifications to 18 CFR 2.26 
and Part 33 to implement amended section 203.\3\ The Commission also 
provided blanket authorizations for certain transactions subject to 
section 203. These blanket authorizations were crafted to ensure that 
there is no harm to captive utility customers, but sought to 
accommodate investments in the electric utility industry and market 
liquidity. Some commenters in the rulemaking proceeding argued that the 
Commission should have granted additional blanket authorizations that 
would benefit the marketplace and not harm customers. Other commenters 
argued that the Commission should adopt additional generic rules to 
guard against inappropriate cross-subsidization associated with the 
mergers. Yet other commenters argued that the Commission should modify 
its competitive analysis for mergers, which has been in place for 10 
years. The Commission stated that it would re-evaluate these and other 
issues at a future technical conference on the Commission's section 203 
regulations as well as certain issues raised in the Order No. 667 
rulemaking proceeding implementing the Public Utility Holding Company 
Act of 2005.\4\
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    \3\ Transactions Subject to FPA Section 203, Order No. 669, 71 
FR 1348 (Jan. 6, 2006), FERC Stats. & Regs. ] 31,200 (2005), order 
on reh'g, Order No. 669-A, 71 FR 28422 (May 16, 2006), FERC Stats. & 
Regs. ] 31,214, order on reh'g, Order No. 669-B, 71 FR 42579 (July 
27, 2006), FERC Stats. & Regs. ] 31,225 (2006).
    \4\ EPAct 2005, Pub. L. 109-58, 1261, et seq., 119 Stat. 594, 
972-78 (2005) (PUHCA 2005). See also Repeal of the Public Utility 
Holding Company Act of 1935 and Enactment of the Public Utility 
Holding Company Act of 2005, Order No. 667, 70 FR 75592 (Dec. 20, 
2005), FERC Stats. & Regs. ] 31,197 (2005), order on reh'g, Order 
No. 667-A, 71 FR 28446 (May 16, 2006), FERC Stats. & Regs. ] 31,213, 
order on reh'g, Order No. 667-B, 71 FR 42750 (July 28, 2006), FERC 
Stats. & Regs. ] 31,224 (2006), order on reh'g, Order No. 667-C, 72 
FR 8277 (Feb. 26, 2007), 118 FERC ] 61,133 (2007).
    These issues included matters related to inappropriate cross-
subsidization and pledges or encumbrance of utility assets, whether 
our current merger policy should be revised, and whether additional 
exemptions, different reporting requirements, or other regulatory 
action (under PUHCA 2005 or the FPA or Natural Gas Act (NGA)) needed 
to be considered.
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    4. On December 7, 2006, the Commission held a technical conference 
(December 7 Technical Conference) to discuss several of the issues that 
arose in the Order No. 667 and Order No. 669 rulemaking proceedings. 
The December 7 Technical Conference discussed a range of topics. The 
first panel discussed whether there are additional

[[Page 41641]]

actions, under the FPA or the NGA, that the Commission should take to 
supplement the protections against cross-subsidization that were 
implemented in the Order No. 667 and Order No. 669 rulemaking 
proceedings. The second panel discussed whether, and if so how, the 
Commission should modify its Cash Management Rule \5\ in light of PUHCA 
2005 and whether the Commission should codify specific safeguards that 
must be adopted for cash management programs and money pool agreements 
and transactions. The third panel discussed whether modifications to 
the specific exemptions, waivers and blanket authorizations set forth 
in the Order No. 667 and Order No. 669 rulemaking proceedings are 
warranted. Post-technical conference comments were accepted.
---------------------------------------------------------------------------

    \5\ Regulation of Cash Management Practices, Order No. 634, 68 
FR 40500 (July 8, 2003), FERC Stats. & Regs. ] 31,145, revised, 
Order No. 634-A, 68 FR 61993 (Oct. 31, 2003), FERC Stats. & Regs. ] 
31,152 (2003) (Cash Management Rule).
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    5. On March 8, 2007, the Commission held a second technical 
conference (March 8 Technical Conference) to discuss whether the 
Commission's section 203 policy should be revised and, in particular, 
whether the Commission's Appendix A merger analysis is sufficient to 
identify market power concerns in today's electric industry market 
environment. The first panel discussed whether the Appendix A analysis 
is appropriate to analyze a merger's effect on competition, given the 
changes that have occurred in the industry (e.g., the development of 
Regional Transmission Organizations (RTOs)) and statutory changes 
(e.g., as a result of the repeal of the Public Utility Holding Company 
Act of 1935 \6\ and new authorities given to the Commission in EPAct 
2005 \7\). The second panel assessed the factors the Commission uses in 
reviewing mergers and the coordination between the Commission and other 
agencies (including state commissions) with merger review 
responsibility.
---------------------------------------------------------------------------

    \6\ 16 U.S.C. 79a et seq. (PUHCA 1935).
    \7\ These include new authorities through amended FPA section 
203 as well as PUHCA 2005.
---------------------------------------------------------------------------

    6. This Notice of Proposed Rulemaking is one of three actions being 
taken based on the Commission's experience implementing amended FPA 
section 203 and PUHCA 2005, as well as the record from the Commission's 
December 7 and March 8 Technical Conferences regarding section 203 and 
PUHCA 2005. In this docket, the Commission is proposing to grant an 
additional blanket authorization for certain dispositions of 
jurisdictional facilities under FPA section 203(a)(1). In addition, in 
separate orders, the Commission is concurrently issuing a section 203 
Supplemental Policy Statement \8\ and a Notice of Proposed Rulemaking 
proposing to codify restrictions on affiliate transactions between 
franchised public utilities with captive customers and their market-
regulated power sales affiliates or non-utility affiliates.\9\ The 
proposed changes to the regulations in this proceeding are discussed 
below.
---------------------------------------------------------------------------

    \8\ FPA Section 203 Supplemental Policy Statement, 119 FERC ] 
61,060 (2007) (issued in Docket No. PL07-1-000).
    \9\ Cross-Subsidization Restrictions on Affiliate Transactions, 
119 FERC ] 61,061 (2007) (issued in Docket No. RM07-15-000).
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III. Discussion

    7. The Commission proposes to amend 18 CFR part 33 (Applications 
Under Federal Power Act Section 203) to provide for an additional 
blanket authorization under FPA section 203(a)(1).
    8. In the Order No. 669 rulemaking proceeding, the Commission set 
forth several blanket authorizations under which participants to FPA 
section 203-jurisdictional transactions need not seek ex ante 
Commission approval. These authorizations included a blanket 
authorization under section 203(a)(2) under which certain holding 
companies may acquire the voting securities of a public utility if the 
acquisition would give the holding company less than 10 percent 
ownership of the outstanding voting securities of such public 
utility.\10\ The Commission found in Order No. 669 that several classes 
of transactions covered by amended section 203(a)(2) would not harm 
competition or captive customers, including acquisitions of voting 
securities that would give the acquiring entity not more than 9.99 
percent ownership of the outstanding voting securities of the acquired 
utility or company.\11\ While parties sought an additional blanket 
authorization under section 203(a)(1) to parallel that provided under 
section 203(a)(2), the Commission could not make a determination with 
respect to section 203(a)(1) at that time. Specifically, with regard to 
the request for parallel blanket authorization under section 203(a)(1) 
for equity ownership interests in public utilities that result in a 
change in control over the underlying public utility, we found in Order 
No. 669-A that such a blanket authorization would not address the 
``[c]oncerns with control, markets and protections of captive customers 
or customers receiving transmission service over jurisdictional 
transmission facilities'' \12\ implicated by section 203(a)(1). 
However, in Order No. 669-B, in response to comments that the lack of a 
parallel section 203(a)(1) authorization could thwart utility 
investment, the Commission stated that this issue would be included in 
the forthcoming technical conferences.\13\
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    \10\ The section 203(a)(2) blanket authorization states:
    Any holding company in a holding company system that includes a 
transmitting utility or an electric utility is granted a blanket 
authorization under section 203(a)(2) of the Federal Power Act to 
purchase, acquire, or take: * * * (ii) Any voting security in a 
transmitting utility, an electric utility company, or a holding 
company in a holding company system that includes a transmitting 
utility or an electric utility company if, after the acquisition, 
the holding company will own less than 10 percent of the outstanding 
voting securities.
    18 CFR 33.1(c)(2)(ii). Because a ``transmitting utility'' or 
``electric utility company'' may also be a ``public utility'' as 
defined in the FPA, the public utility may need to obtain separate 
authorization for the same transaction under FPA section 203(a)(1), 
which requires authorization for public utilities to dispose of 
jurisdictional facilities.
    \11\ Order No. 669, FERC Stats. & Regs. ] 31,200 at P 141.
    \12\ Order No. 669-A, FERC Stats. & Regs. ] 31,214 at P 103.
    \13\ Order No. 669-B, FERC Stats. & Regs. ] 31,225 at P 26.
---------------------------------------------------------------------------

    9. Based on the record from the technical conferences (including 
both oral and written comments) and the Commission's experience under 
amended section 203 to date, the Commission proposes to provide for a 
limited blanket authorization to public utilities under section 
203(a)(1). This blanket authorization would work in conjunction with 
the blanket authorization granted to holding companies under section 
203(a)(2) in 18 CFR 33.1(c)(2)(ii).\14\ Under this limited blanket 
authorization, a public utility would be pre-authorized to dispose of 
less than 10 percent of its voting securities to a public utility 
holding company but only if, after the disposition, the holding company 
and any associate company in aggregate will own less than 10 percent of 
that public utility. We note that this proposed blanket authorization 
would not entirely ``parallel'' the section 203(a)(2) authorization 
since the section 203(a)(2) authorization does not contain the ``in 
aggregate'' limitation. However, we believe this limitation would 
provide better protection against possible transfer of ``control'' of a 
public utility. We seek comment on this limitation.
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    \14\ See supra note 10.
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    10. The Commission believes that the disposition of such limited 
voting interests (less than 10 percent), with the proposed ``in 
aggregate'' restriction and the existing reporting requirements

[[Page 41642]]

applicable to holding companies,\15\ will not harm competition or 
captive customers. Moreover, this 10 percent threshold is consistent 
with the definition of ``holding company'' under section 1262(8)(A) of 
PUHCA 2005. Under that definition, any company that has the power to 
vote 10 percent or more of the securities of a public utility company 
(or a holding company of a public utility company) triggers holding 
company status and thus is presumed to raise sufficient concerns about 
controlling influence over a subsidiary public utility that regulatory 
oversight is needed. The 10 percent threshold is also consistent with 
the blanket authorization granted under section 203(a)(2) in the Order 
No. 669 rulemaking proceeding, under which holding companies are pre-
authorized to acquire up to 9.99 percent of voting securities of a 
public utility.
---------------------------------------------------------------------------

    \15\ See, e.g., 18 CFR 33.1(c)(4) (requiring the filing of 
Securities and Exchange Commission (SEC) Schedule 13D, Schedule 13G, 
and Form 13F, if applicable); 18 CFR 35.42(a) (effective 60 days 
after publication in the Federal Register of Market-Based Rates For 
Wholesale Sales Of Electric Energy, Capacity And Ancillary Services 
By Public Utilities, Order No. 697, 72 FR 39903 (July 20, 2007), 
FERC Stats. & Regs. ] 31,252 (2007)) (requiring a notification of 
any change in status that would reflect a departure from the 
characteristics the Commission relied upon in granting market-based 
rate authority); 18 CFR 366.4(a) (requiring Form FERC-65 
(notification of holding company status)).
---------------------------------------------------------------------------

    11. As noted, as part of the existing ``parallel'' blanket 
authorization under section 203(a)(2), the Commission already requires 
the holding company to provide to the Commission copies of any Schedule 
13D, Schedule 13G and Form 13F at the same time and on the same basis, 
as filed with the SEC in connection with any securities purchased, 
acquired or taken pursuant to the blanket authorization under section 
203(a)(2) provided in Sec.  33.1(c)(2) of the Commission's 
regulations.\16\ Importantly, a Schedule 13 filer must acquire the 
subject securities ``in the ordinary course of his business and not 
with the purpose nor with the effect of changing or influencing the 
control of the issuer, nor in connection with or as a participant in 
any transaction having such purpose or effect'' over entities whose 
securities it holds.\17\ It is also required to file a notification 
with the SEC of any acquisition of beneficial ownership of more than 
five percent of a class of equity securities.\18\ Because we already 
receive these filings from the holding company, we propose not to 
require additional reporting on the part of individual public utilities 
to duplicate the reporting of information we are already getting about 
the same transaction. However, we seek comments on whether any 
additional reporting by the public utility should be required.
---------------------------------------------------------------------------

    \16\ 18 CFR 33.1(c)(4).
    \17\ 17 CFR 240.13d-1(b)(1)(i).
    \18\ 17 CFR 240.13d-1(a).
---------------------------------------------------------------------------

    12. Further, we seek comment on whether the blanket authorization 
under section 203(a)(1), proposed herein, should be extended to the 
transfer of securities by a public utility to a holding company granted 
a blanket authorization under section 203(a)(2) in Sec. Sec.  
33.1(c)(8),\19\ 33.1(c)(9),\20\ and 33.1(c)(10) \21\ of the 
Commission's regulations.
---------------------------------------------------------------------------

    \19\ 18 CFR 33.1(c)(8) (granting a blanket authorization under 
section 203(a)(2) to a person that is a holding company solely with 
respect to one or more exempt wholesale generators (EWGs), foreign 
utility companies (FUCOs), or qualifying facilities (QFs) to acquire 
the securities of additional EWGs, FUCOs, or QFs).
    \20\ 18 CFR 33.1(c)(9) (granting a conditional blanket 
authorization under section 203(a)(2) to a holding company, or a 
subsidiary of that company, that is regulated by the Board of 
Governors of the Federal Reserve Bank or by the Office of the 
Comptroller of the Currency, under the Bank Holding Company Act of 
1956 as amended by the Gramm-Leach-Bliley Act of 1999).
    \21\ 18 CFR 33.1(c)(10) (granting a limited blanket 
authorization under section 203(a)(2) to a holding company, or a 
subsidiary of that company, for the acquisition of securities of a 
public utility or a holding company that includes a public utility 
for purposes of underwriting activities or hedging transactions).
---------------------------------------------------------------------------

    13. In addition, certain participants to the technical conferences 
argue that a blanket authorization under section 203(a)(1) should be 
granted for transactions in which a public utility or a holding company 
is acquiring or disposing of a jurisdictional contract where the 
acquirer does not have captive customers and the contract does not 
convey control over the operation of a generation or transmission 
facility. These commenters argue that, because acquisition of these 
contracts cannot create competitive or rate concerns, the Commission 
should grant blanket authorization under section 203(a)(1) for such 
transactions. Because the specific request for blanket authorization 
may present concerns where the transferor has captive customers, we 
seek comment on whether the Commission should grant a generic blanket 
authorization under section 203(a)(1) for the acquisition or 
disposition of a jurisdictional contract where neither the acquirer nor 
transferor has captive customers and the contract does not convey 
control over the operation of a generation or transmission facility.

IV. Information Collection Statement

    14. The Office of Management and Budget's (OMB) regulations require 
that OMB approve certain information collection and data retention 
requirements imposed by agency rules.\22\ Therefore, the Commission is 
submitting the proposed modifications to its information collections to 
OMB for review and approval in accordance with section 3507(d) of the 
Paperwork Reduction Act of 1995.\23\
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    \22\ 5 CFR part 1320.
    \23\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------

    15. The Commission is proposing amendments to the Commission's 
regulations to provide for a limited blanket authorization under FPA 
section 203(a)(1). The regulations that the Commission proposes should 
have a minimal impact on the current reporting burden associated with 
an individual application, as they do not substantially change the 
filing requirements with which section 203 applicants must currently 
comply. Further, the Commission does not expect the total number of 
section 203 applications under amended section 203 to increase, but 
rather expects the total number of section 203 applications to 
decrease. This is due to the proposed rule providing for a category of 
jurisdictional transactions for which the Commission would not require 
applications seeking before-the-fact approval. This would reduce the 
burden on the electric industry, because it will reduce the number of 
applications that need to be made with the Commission.
    16. Comments are solicited on the Commission's need for this 
information, whether the information will have practical utility, the 
accuracy of provided burden estimates, ways to enhance the quality, 
utility, and clarity of the information to be collected, and any 
suggested methods for minimizing respondents' burden, including the use 
of automated information techniques.
    Burden Estimate: The Public Reporting and records retention burden 
for the proposed reporting requirements and the records retention 
requirement are as follows.
    Title: FERC-519, ``Application Under the Federal Power Act, Section 
203''.
    Action: Revised Collection.
    OMB Control No: 1902-0082.
    The applicant will not be penalized for failure to respond to this 
information collection unless the information collection displays a 
valid OMB control number or the Commission has provided justification 
as to why the control number should not be displayed.
    Respondents: Businesses or other for profit.
    Frequency of Responses: N/A.
    Necessity of the Information: This proposed rule proposes 
codification of a limited blanket authorization under

[[Page 41643]]

FPA section 203(a)(1), providing for a category of jurisdictional 
transactions under section 203(a)(1) for which the Commission would not 
require applications seeking before-the-fact approval.
    Internal Review: The Commission has conducted an internal review of 
the public reporting burden associated with the collection of 
information and assured itself, by means of internal review, that there 
is specific, objective support for its information burden estimate.
    17. Interested persons may obtain information on the reporting 
requirements by contacting: Federal Energy Regulatory Commission, 888 
First Street, NE., Washington, DC 20426 [Attention: Michael Miller, 
Office of the Executive Director, Phone (202) 502-8415, fax (202) 273-
0873, e-mail: michael.miller@ferc.gov]. Comments on the requirements of 
the proposed rule may also be sent to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, Washington, DC 
20503 [Attention: Desk Officer for the Federal Energy Regulatory 
Commission, fax (202) 395-7285, e-mail oira_submission@omb.eop.gov].

V. Environmental Analysis

    18. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\24\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment.\25\ The proposed regulations are categorically excluded as 
they address actions under section 203.\26\ Accordingly, no 
environmental assessment is necessary and none has been prepared in 
this NOPR.
---------------------------------------------------------------------------

    \24\ Regulations Implementing the National Environmental Policy 
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
    \25\ 18 CFR 380.4.
    \26\ See 18 CFR 380.4(a)(16).
---------------------------------------------------------------------------

VI. Regulatory Flexibility Act Certification

    19. The Regulatory Flexibility Act of 1980 (RFA) \27\ requires 
agencies to prepare certain statements, descriptions and analyses of 
proposed rules that will have a significant economic impact on a 
substantial number of small entities.\28\ However, the RFA does not 
define ``significant'' or ``substantial.'' Instead, the RFA leaves it 
up to an agency to determine the effect of its regulations on small 
entities.
---------------------------------------------------------------------------

    \27\ 5 U.S.C. 601-12.
    \28\ The RFA definition of ``small entity'' refers to the 
definition provided in the Small Business Act, which defines a 
``small business concern'' as a business that is independently owned 
and operated and that is not dominant in its field of operation. 15 
U.S.C. 632. The Small Business Size Standards component of the North 
American Industry Classification System defines a small electric 
utility as one that, including its affiliates, is primarily engaged 
in the generation, transmission, and/or distribution of electric 
energy for sale and whose total electric output for the preceding 
fiscal year did not exceed 4 million MWh. 13 CFR 121.201.
---------------------------------------------------------------------------

    20. Most filing companies regulated by the Commission do not fall 
within the RFA's definition of small entity.\29\ Moreover, as noted 
above, this proposed rule proposes codification of a limited blanket 
authorization under FPA section 203(a)(1), providing for a category of 
jurisdictional transactions under section 203(a)(1) for which the 
Commission would not require before-the-fact approval. Thus, filing 
requirements are reduced by the rule. Therefore, the Commission 
certifies that the proposed rule will not have a significant economic 
impact on a substantial number of small entities. As a result, no 
regulatory flexibility analysis is required.
---------------------------------------------------------------------------

    \29\ 5 U.S.C. 601(3), citing to section 3 of the Small Business 
Act, 15 U.S.C. 632. Section 3 of the Small Business Act defines a 
``small-business concern'' as a business which is independently 
owned and operated and which is not dominant in its field of 
operation.
---------------------------------------------------------------------------

VII. Comment Procedures

    21. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice, including any related 
matters or alternative proposals that commenters may wish to discuss. 
Comments are due August 30, 2007. Comments must refer to Docket No. 
RM07-21-000, and must include the commenter's name, the organization 
they represent, if applicable, and their address in their comments. 
Comments may be filed either in electronic or paper format.
    22. Comments may be filed electronically via the eFiling link on 
the Commission's Web site at http://www.ferc.gov. The Commission 
accepts most standard word processing formats, but requests commenters 
to submit comments in a text-searchable format rather than a scanned 
image format. Commenters filing electronically do not need to make a 
paper filing. Commenters that are not able to file comments 
electronically must send an original and 14 copies of their comments 
to: Federal Energy Regulatory Commission, Secretary of the Commission, 
888 First Street, NE., Washington, DC 20426.
    23. 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. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VIII. Document Availability

    24. 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.
    25. From the Commission's Home Page on the Internet, this 
information is available in the Commission's document management 
system, 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 of the docket number), in the 
docket number field.
    26. User assistance is available for eLibrary and the Commission's 
Web site during normal business hours. For assistance, please contact 
FERC Online Support at (202) 502-6652 (toll-free at 1-866-208-3676) or 
e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at 
(202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at 
public.referenceroom@ferc.gov.

List of Subjects in 18 CFR Part 33

    Electric utilities, Reporting and recordkeeping requirements, 
Securities.

    By direction of the Commission.
Kimberly D. Bose,
Secretary.
    In consideration of the foregoing, the Commission proposes to amend 
Part 33, Chapter I, Title 18, Code of Federal Regulations, as follows:

PART 33--APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203

    1. The authority citation for part 33 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 
U.S.C. 7101-7352; Pub. L. 109-58, 119 Stat. 594.

    2. In Sec.  33.1, paragraph (c)(12) is added to read as follows:


Sec.  33.1  Applicability, definitions, and blanket authorizations.

* * * * *

[[Page 41644]]

    (c) * * *
    (12) A public utility is granted a blanket authorization under 
section 203(a)(1) of the Federal Power Act to transfer its outstanding 
voting securities to any holding company granted blanket authorizations 
in paragraph (c)(2)(ii) of this section if, after the transfer, the 
holding company and any of its associate or affiliate companies in 
aggregate will own less than 10 percent of the outstanding voting 
interests of such public utility.

 [FR Doc. E7-14619 Filed 7-30-07; 8:45 am]
BILLING CODE 6717-01-P