[Federal Register Volume 61, Number 216 (Wednesday, November 6, 1996)]
[Rules and Regulations]
[Pages 57325-57328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28476]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 365 and 375
[Docket No. RM96-13-000]
Amendment to Filing Requirements and Ministerial Procedures for
Persons Seeking Exempt Wholesale Generator Status; Order No. 591
Issued October 30, 1996.
AGENCY: Federal Energy Regulatory Commission, DOE
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
amending its regulations to provide that the Commission may, in its
discretion for good cause shown, allow an applicant for exempt
wholesale generator status to amend its application without paying an
additional filing fee; however, the statutory sixty-day period for
Commission action will be restarted on the date on which the Commission
receives the amendment. The Commission believes that by allowing these
applications to be amended to correct deficiencies, it will improve
administrative efficiency. The Commission is also amending its
regulations to delegate to the General Counsel the authority to act on
uncontested amendments that do not present unusual or interpretation
issues.
EFFECTIVE DATE: October 30, 1996.
FOR FURTHER INFORMATION CONTACT: Kimberly Bose, Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street, N.E.,
Washington, D. C. 20426, Telephone: (202) 208-2284.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Commission's Public
Reference Room, Room 2A, 888 First Street, N.E., Washington, D. C.
20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing (202) 208-1397 if dialing locally or 1-800-856-3920 if dialing
long distance. CIPS is also available through the Fed World System (by
modem or Internet). To access CIPS, set your communications software to
19200, 14400, 12000, 9600, 7200, 4800, 2400 or 1200bps full duplex, no
parity, 8 data bits, and 1 stop bit. The full text of this final rule
will be available on CIPS indefinitely in ASCII and WordPerfect 5.1
format for one year. The complete text on diskette in Wordperfect
format may also be purchased from the Commission's copy contractor,
Ladorn Systems Corporation, also located in Room 2A, 888 First Street,
N.E., Washington, D. C. 20426.
Before Commissioners: Elizabeth Anne Moler, Chair; Vicky A. Bailey,
James J. Hoecker, William L. Massey, and Donald F. Santa, Jr.
I. Introduction
This final rule amends 18 CFR Parts 365 and 375 to provide that the
Commission may, in its discretion for good cause shown, allow an
applicant for exempt wholesale generator (EWG) status to amend its
application without paying an additional filing fee; however, the
statutory sixty-day period for Commission action will be restarted on
the date on which the Commission receives the amendment. The Commission
is delegating to the General Counsel the authority to act on
uncontested amendments that do not present unusual or interpretation
issues.
II. Public Reporting Burden
The Commission estimates the public reporting burden for the
collection of information under the final rule will remain unchanged
for FERC-598, since the only modifications are to the Commission's
procedures to allow an applicant for exempt wholesale generator (EWG)
status to amend its application without paying an additional filing fee
and to change the Commission's delegation authority.
This estimate includes the time for reviewing instructions,
researching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information. The
current annual reporting burden for the industry for the collection of
information is estimated to be:
[[Page 57326]]
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Total
Data collection FERC-598 Number of Number of Hours per annual
respondents responses response hours
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Reporting...................................................... 280 1 6 1,680
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This order contains minor, technical amendments to Parts 365 and
375 of the regulations. The amendments are intended to allow an
applicant for EWG status to amend its application without paying an
additional filing fee. Therefore, these amendments will not have a
significant impact on the estimated reporting burden that is submitted
by the Commission to OMB.
For copies of the OMB submission contact Michael Miller,
Information Policy and Standards Branch, at (202) 208-1415. Comments on
the requirements of this order should be directed to the Desk Officer
for the Federal Energy Regulatory Commission, Office of Management and
Budget, Room 3019NEOB, Washington, D.C. 20503, phone 202-395-3087,
facsimile: 202-395-7285 or via the Internet at hillier __t@a;1/eop.gov.
A copy of any comments filed with the Office of Management and Budget
and comments regarding this burden estimate, or any other aspect of
this collection of information, including suggestions for reducing this
burden should also be sent to the following address at the Commission:
Federal Energy Regulatory Commission, Information Services, Room 41-17,
888 First Street, N.E., Washington, D.C. 20426, (Attention: Michael
Miller, Information Services Division, 202-208-1415), and to the Office
of Information and Regulatory Affairs of the Office of Management and
Budget (Attention: Desk Officer for the Federal Energy Regulatory
Commission), FAX: (202) 395-7285, phone: (202) 395-3087.
III. Background
Section 32 of the Public Utility Holding Company Act of 1935
(PUHCA), as amended by the Energy Policy Act,1 created a new
category of entities known as EWGs that are exempt from regulation
under PUHCA.2 It requires that applicants for EWG status file
applications for determination of their status by the Commission. An
applicant that has applied in good faith for such a determination is
deemed to be an EWG pending the Commission's determination. The
Commission is required to render its determination within 60 days of
the receipt of an application.
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\1\ 15 U.S.C. 79z-5a (West Supp. 1994).
\2\ Pub. L. 102-486, 106 Stat. 2776 (1992).
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The Commission's regulations (EWG Rules) set forth filing
requirements and ministerial procedures for EWG applications.3
They provide that any person seeking EWG status must file a sworn
statement containing certain information.4 The Commission
publishes notices of filing of EWG applications in the Federal Register
and permits comments or interventions.5
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\3\ 18 CFR Part 365.
\4\ The information required is: (1) A representation that the
applicant is engaged directly, or indirectly through one or more
affiliates as defined in section 2(a)(11)(B) of PUHCA, and
exclusively in the business of owning or operating, or both owning
and operating, all or part of one or more eligible facilities and
selling electric energy at wholesale; (2) any exceptions for foreign
sales of power at retail; (3) a brief description of the facility or
facilities that are or will be eligible facilities and related
transmission interconnection components; (4) any lease arrangements
involving the facility and any public utility companies; (5) any
electric utility company that is an affiliate or associate company
of the applicant; and (6) any State commission determinations
required by sections 32(c) and (d)(2) of PUHCA.
\5\ See 18 CFR 365.4.
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In adopting the EWG Rules, we stated that we will not issue
deficiency letters,6 reasoning that the absolute sixty-day
deadline for Commission action does not leave adequate time for review
of deficiency responses.7 For the same reason, the Commission
stated that it would not allow amendments to filings.8 The order
on rehearing affirmed this decision, noting that the EWG filing
requirements, which follow the requirements of section 32(a)(1) of
PUHCA, are simple and straightforward.9
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\6\ Filing Requirements and Ministerial Procedures for Persons
Seeking Exempt Wholesale Generator Status, Order No. 550, 58 FR 8897
(February 18, 1993 (as corrected at 58 FR 11886 (March 1, 1993)),
FERC Stats. & Regs. Regulations Preambles (1991-1996) para. 30,964
at 30,778 (Order No. 550).
\7\ Id.
\8\ Id. n. 30.
\9\ Filing Requirements and Ministerial Procedures for Persons
Seeking Exempt Wholesale Generator Status, Order No. 550-A, FERC
Stats. & Regs., Regulations Preambles (1991-1996) para. 30,969 at
30,839-40 (1993).
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IV. Discussion
Since the Commission issued the EWG Rules, we have received
applications that, for various reasons, did not meet the requirements
set forth in 18 CFR 365.3. Some of these deficiencies have been
extremely minor or have been the result of drafting errors. In the
past, when Commission staff has identified problems with an application
that it believed would cause the application to be disapproved,
Commission staff has telephoned the applicant to tell them of the
problems. The applicant has generally chosen to withdraw the
application and file a new one. This has meant that those applicants
who will not be public utilities have had to pay new filing
fees.10 This approach has proven to be costly to the applicants
and cumbersome for the Commission.
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\10\ Order No. 550 created a separate filing fee category for
EWGs that will not become public utilities upon the sale of electric
energy at wholesale. This would include foreign EWGs, EWGs owning
only eligible facilities located and selling wholly within the
Electric Reliability Council of Texas, in Hawaii, in Alaska, in
Puerto Rico, etc. FERC Stats. & Regs. Regulations Preambles (1991-
1996) at 30,773.
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Based on this experience, we have decided to revise the EWG Rules
to provide that we may, in our discretion for good cause shown, allow
applicants to amend their applications 11 without paying a new
filing fee.12 We will issue a notice of the filing of such an
amendment in the Federal Register allowing interventions and/or
comments. Filing of the amendment will restart the statutory sixty-day
approval period.13
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\11\ The Commission would not expect to accept an amendment if
the result of such action is to effectively result in a new
proposal.
\12\ When the Commission does allow an amendment to a deficient
application, the amended filing will receive the same docket number
that the Commission assigned to the original application.
\13\ See 18 CFR 365.5.
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The General Counsel has delegated authority to grant certain EWG
applications and to act on uncontested motions to withdraw such
applications.14 Accordingly, we will delegate to the General
Counsel similar authority to act on uncontested amendments to
applications that do not present unusual or interpretation issues. The
notice of the amendment in the Federal Register will serve as
notification that the amendment has been accepted.
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\14\ Delegation of Authority to the Secretary, the Director of
the Office of Electric Power Regulation and the General Counsel, 60
FR 62326 (Dec. 6, 1995).
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[[Page 57327]]
V. Environmental Statement
Commission regulations require that an environmental assessment or
an environmental impact statement be prepared for any Commission action
that may have a significant adverse effect on the human
environment.15 The Commission has categorically excluded certain
actions from this requirement as not having a significant effect on the
human environment.16 No environmental consideration is necessary
for the promulgation of a rule that is clarifying, corrective, or
procedural.17 As explained below, this final rule is procedural in
nature. Accordingly, no environmental statement is necessary.
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\15\ Regulations Implementing the National Environmental Policy
Act, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs., Regulations Preambles (1986-1990) para. 30,783 (1987)
(codified at 18 CFR Part 380).
\16\ 18 CFR 380.4.
\17\ 18 CFR 380.4(a)(2)(ii).
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VII. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act 18 requires rulemakings either
to contain a description and analysis of the impact the rule will have
on small entities or a certification that the rule will not have a
substantial economic impact on a substantial number of small entities.
This final rule is procedural and ministerial in nature and will not
add any burdens to any entities. Rather, it will make it easier and
quicker for entities, including small entities, to receive approval for
their applications. Therefore, the Commission certifies that
promulgating this rule will not have a significant economic impact on a
substantial number of small entities.
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\18\ 5 U.S.C. 601-612.
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VIII. Information Collection Statement
Office of Management and Budget (OMB) regulations require OMB to
approve certain information collection requirements imposed by an
agency.19 The information collection requirements in the final
rule are contained in FERC-598.
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\19\ 5 CFR 1320.12.
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Title: FERC-598, Determinations for Entities Seeking EWG Status.
Action: Final Rule.
OMB Control No: 1902-0166 (Respondents shall not be penalized for
failure to respond to this collection of information unless the
collection of information displays a valid OMB control number.)
Respondents: Business or other for profit, including small
businesses. Section 711 of the Energy Policy Act of 1992 (P.L. 102-46)
amended the Public Utility Holding Company Act of 1935 (PUHCA) to
create a category of power producers known as EWGs. An applicant is an
EWG when it files an application demonstrating that it is engaged
directly, or indirectly through one or more affiliates as defined in
the PUHCA section 2(a)(11)(B), and exclusively in the business of
owning and/or operating all or part of one or more eligible facilities,
and selling electricity at wholesale.
Frequency of Responses: On occasion.
Necessity of Information: This final rule amends Parts 365 and 375
of the Commission's regulations to provide that the Commission may, in
its discretion for good cause shown, allow EWG applicants to amend
their applications without paying new filing fees. The Commission
believes that allowing these applications to be amended will improve
administrative efficiency and will be less burdensome to applicants.
The information is collected by the Commission in the form of a written
application for determination of status as an EWG. The Commission uses
the data to make a determination as to whether the applicant meets the
statutory requirements for EWG status.
The Final Rule will not change the reporting requirements of FERC-
598. This final rule amends Parts 365 and 375 of the Commission's
regulations to allow an applicant for EWG status to amend its
application without paying additional filing fee. The Commission
believes that by allowing these applications to be amended to correct
deficiencies, it will improve administrative efficiency. This rule
therefore is not subject to OMB review. The Commission is submitting a
copy of the proposed rule to OMB for information purposes only.
Interested persons may obtain information on or submit comments
concerning the reporting requirements by contacting the Federal Energy
Regulatory Commission, 888 First Street, N.E. Washington, D.C. 20426
[Attention: Michael Miller, Information Service Division, (202)208-
1415], and to the Office of Management and Budget [Attention: Desk
Officer for the Energy Regulatory Commission (202)396-3087.]
IX. Administrative Findings and Effective Date
The Administrative Procedure Act (APA) 20 requires rulemakings
to be published in the Federal Register. The APA also mandates that an
opportunity for comments be provided when an agency promulgates
regulations. However, notice and comment are not required under the APA
when the agency for good cause finds that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.21 The Commission finds that notice and comment are
unnecessary for this rulemaking. As explained above, this final rule is
procedural and ministerial in nature. The Commission is merely amending
its rules to improve the efficiency with which certain routine items
are processed. We therefore find good cause to make this rule effective
immediately upon issuance.
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\20\ 5 U.S.C. 551-559.
\21\ 5 U.S.C. 553(B).
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X. Congressional Notification
The Small Business Regulatory Enforcement Fairness Act of 1996
requires agencies to report to Congress on the promulgation of certain
final rules prior to their effective dates.22 That reporting
requirement does not apply to this final rule because it falls within a
statutory exception for rules relating to agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties.23
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\22\ Pub. L. 104-121, 110 Stat. 847 (1996).
\23\ Pub. L. 104-121, 110 Stat. 847, 804(3)(C) (1996).
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List of Subjects
18 CFR Part 365
Exempt wholesale generators.
18 CFR Part 375
Authority delegations (Government agencies), Electric power rates,
Electric utilities, Reporting and recordkeeping requirements.
By the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, the Commission amends Parts 365
and 375, Chapter I, Title 18, Code of Federal Regulations, as set forth
below.
PART 365--FILING REQUIREMENTS AND MINISTERIAL PROCEDURES FOR
PERSONS SEEKING EXEMPT WHOLESALE GENERATOR STATUS
1. The authority citation for Part 365 continues to read as
follows:
Authority: 15 U.S.C. 79.
2. Part 365 is amended by revising Sec. 365.2(b)(2), by
redesignating Sec. 365.5 as Sec. 365.6, Sec. 365.6 as Sec. 365.7, and
Sec. 365.7 as Sec. 365.8, and by adding Sec. 365.5.
Sec. 365.2 Definitions.
(b) * * *
[[Page 57328]]
(2) Receipt of an application means the date on which the
Commission receives the application or an amendment allowed for good
cause shown and the applicable filing fee, if any; and
* * * * *
Sec. 365.5 Amendment of Applications.
The Commission will allow amendments of applications for good cause
shown without payment of additional filing fees. If the amendment is
accepted, notice of the amended application will be published in the
Federal Register, with further opportunity for comments.
PART 375--THE COMMISSION
1. The authority citation for part 375 continues to read as
follows:
Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.
2. In Sec. 375.309, paragraph (g) is revised to read as follows:
Sec. 375.309 Delegations to the General Counsel.
* * * * *
(g) Grant uncontested applications for exempt wholesale generator
status that do not involve unusual or interpretation issues; to act on
uncontested motions to withdraw such applications; and to act on
uncontested amendments to applications for EWG status that do not
present unusual or interpretation issues.
[FR Doc. 96-28476 Filed 11-5-96; 8:45 am]
BILLING CODE 6717-01-P