[Federal Register Volume 73, Number 228 (Tuesday, November 25, 2008)]
[Notices]
[Pages 71640-71641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27985]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. PL09-2-000]


Material Changes in Facts That Require Notifications Under 
Commission Regulations Under the Public Utility Holding Company Act of 
2005; Order Clarifying Requirement To Notify Commission of Material 
Changes in Facts Under the Public Utility Holding Company Act of 2005 
and Allowing 45-Day Filing Period for Updated Notifications

Issued November 20, 2008.

Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. 
Kelly; Marc Spitzer; Philip D. Moeller; and Jon Wellinghoff.

    1. The Commission's regulations under the Public Utility Holding 
Company Act of 2005 (PUHCA 2005) \1\ currently require persons that 
meet the definition of a holding company set forth at 18 CFR 366.1 
(2008) to notify the Commission of their status as a holding company no 
later than 30 days after they become a holding company.\2\ The 
Commission's PUHCA 2005 regulations also provide exemptions from or 
waivers of requirements that apply to holding companies.\3\ The 
companies that receive certain of these exemptions or waivers are 
required to notify the Commission of material changes in facts that may 
affect the exemption or waiver.\4\ It has come to the Commission's 
attention that we may not have provided sufficient clarity regarding an 
aspect of the scope of this filing requirement and the purpose of this 
order is to clarify and provide guidance on certain filings that need 
to be made under this regulation.
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    \1\ 42 U.S.C. 16451 et seq. (2006).
    \2\ 18 CFR 366.4(a)(1) (2008).
    \3\ Id. Sec.  366.3.
    \4\ Id. Sec.  366.4(d).
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    2. The exemptions in question apply to a number of entities, 
including certain passive investors and certain utility operating 
companies, as well as to certain classes of transactions. Qualifying 
entities or classes of transactions are exempt from the requirements 
concerning access to books and records found at section 366.2, as well 
as the accounting, record-retention, and reporting requirements of 
sections 366.21, 366.22, and 366.23 of the Commission's regulations.\5\ 
To receive one or more of these exemptions, a person must file an 
exemption notification with the Commission, i.e., FERC-65A. The 
exemption is deemed granted if the Commission does not take action on 
the notification within 60 days.\6\ Persons that do not qualify for an 
exemption under the regulations may petition for a declaratory order 
granting one.\7\
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    \5\ Id. Sec.  366.3(b).
    \6\ Id. Sec.  366.4(b)(1).
    \7\ Id. Sec.  366.4(b)(3); accord id. Sec.  366.3(d).
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    3. The waivers in question apply to holding companies that have 
single-state holding company systems, as defined in section 366.3(c)(1) 
of the Commission's regulations, as well as investors in independent 
transmission-only companies and holding companies with 100 MW of 
generation or less that is used for their own load or sales to 
affiliated end users.\8\ Qualifying entities receive a waiver of the 
accounting, record-retention, and reporting requirements found in 
sections 366.21, 366.22 and 366.23 of the Commission's regulations.\9\ 
To receive one or more of these waivers, a person must file a waiver 
notification with the Commission, i.e., FERC-65B. The waiver is deemed 
granted if the Commission does not take action on the notification 
within 60 days.\10\ Persons that do not qualify for a waiver under the 
regulations may petition for a declaratory order granting one.\11\
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    \8\ Id. Sec.  366.3(c).
    \9\ Id. Sec.  366.4(c).
    \10\ Id. Sec.  366.4(c)(1).
    \11\ Id. Sec.  366.4(c)(2); accord id. Sec.  366.3(d).
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    4. The Commission's regulations specify that if there is any 
material change in facts that may affect an exemption or waiver of the 
type described above, the person that received the exemption or waiver 
must notify the Commission of the change within 30 days of the material 
change. At that time the person must (i) submit a new FERC-65A, FERC-
65B, or petition for declaratory order; (ii) file a written explanation 
why the material change in facts does not affect the exemption or 
waiver; or (iii) notify the Commission that it no longer seeks to 
maintain its exemption or waiver.\12\
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    \12\ Id. Sec.  366.4(d).
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    5. The Commission's regulations require only notification of those 
material changes in facts that may affect an exemption or waiver, but 
they do not otherwise state when a notification is required. The 
Commission wishes to clarify one type of change in facts that should in 
all cases be the subject of a notification. If a holding company that 
has previously filed an exemption or waiver notification, i.e., FERC-
65A or FERC-65B, or that has received an exemption or waiver through a 
declaratory order, becomes a holding company with respect to an 
additional public-utility company or holding company of any public-
utility company (i.e., obtains the power to vote 10 percent or greater 
of the voting securities of an additional company), that holding 
company should file with the Commission a notification of material 
change in facts that describes the additional public-utility company or 
holding company of any public-utility company and otherwise complies 
with the requirements of section 366.4(d)(1) of the Commission's 
regulations by selecting one of the three possible courses of action 
set forth in that section. This filing should be made whether or not a 
change has occurred with respect to the basis on which the exemption or 
waiver was granted.\13\ We

[[Page 71641]]

note that the FERC-65 filing requirements are intended, in part, to 
serve an informational purpose,\14\ and the addition of a new 
subsidiary company that is a public-utility company or holding company 
of a public-utility company represents a material fact that should be 
reported to the Commission.
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    \13\ For example, if a holding company received an exemption 
from the PUHCA 2005 regulations on the basis of its status as a 
passive investor of the type identified in 18 CFR 366.3(b)(2)(i), it 
should notify the Commission whenever it acquires as a passive 
investor interests in an additional public-utility company or 
holding company that, upon acquisition, becomes a ``subsidiary 
company,'' as defined in 18 CFR 366.1, of the passive investor. This 
filing should be made even if the holding company continues to 
qualify for an exemption as a passive investor.
    \14\ Id. Sec.  366.4(a)(2).
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    6. Because not all holding companies may have been interpreting the 
Commission's regulations to require such filings where the basis on 
which their exemption or waiver was granted has not changed, and 
because the Commission has not previously clarified this requirement 
for notifications of material changes in fact, we will allow all such 
companies to file within 45 days of the date of publication of this 
order in the Federal Register a notification of change in material 
facts which updates the Commission on any investments of 10 percent or 
more of the voting securities of a public-utility company or holding 
company of a public-utility company since the time the exemption or 
waiver was granted. The Secretary is directed to publish a copy of this 
order in the Federal Register.

    By the Commission.
Kimberly D. Bose,
Secretary.
[FR Doc. E8-27985 Filed 11-24-08; 8:45 am]
BILLING CODE 6717-01-P