[Federal Register: July 27, 2006 (Volume 71, Number 144)]
[Rules and Regulations]
[Page 42579-42587]
[DOCID:fr27jy06-5]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 2 and 33

[Docket No. RM05-34-002; Order No. 669-B]

Transactions Subject to FPA Section 203

Issued July 20, 2006.
AGENCY: Federal Energy Regulatory Commission.

ACTION: Final Rule; Order on Rehearing of Order No. 669-A.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) affirms,
with certain clarifications, its determinations in Order Nos. 669 and
669-A. Order Nos. 669 and 669-A revised 18 CFR 2.26 and 18 CFR part 33
to implement amended section 203 of the Federal Power Act.

DATES: This order on rehearing will be effective on August 28, 2006.

FOR FURTHER INFORMATION CONTACT:

Roshini Thayaparan (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426.<PHONE_NUMBER>.
Phillip Nicholson (Technical Information), Office of Energy, Markets,
and Reliability--West, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.<PHONE_NUMBER>.
Andrew P. Mosier, Jr. (Technical Information), Office of Energy,
Markets, and Reliability--West, Federal Energy Regulatory Commission,
888 First Street, NE., Washington, DC 20426.<PHONE_NUMBER>.
Jan Macpherson (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426.<PHONE_NUMBER>.
James Akers (Technical Information), Office of Energy, Markets, and
Reliability--West, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Contents

                                                               Paragraph
                                                                  No.

I. Introduction.............................................           2
II. Discussion..............................................          10
  A. 18 CFR Section 33.1(b)(4)--Definition of ``Electric              11
   Utility Company'' and 18 CFR Section 33.1(c)(1)(i) and
   (ii)--Blanket Authorizations for Intrastate Commerce and
   Local Distribution.......................................
  B. 18 CFR Section 33.1(c)(7)--Blanket Authorization for             18
   Cash Management Programs.................................
  C. Section 33.1(c)(2)--Blanket Authorizations for                   24
   Purchases of Securities..................................
  D. 18 CFR Section 33.1(c)(8)--Blanket Authorization for a           30
   Holding Company Owning Only EWGs, QFs or FUCOs To Acquire
   Additional EWGs, QFs or FUCOs............................
  E. Section 33.2(j)--General Information Requirements                45
   Regarding Cross-Subsidization............................
III. Information Collection Statement.......................          52
IV. Document Availability...................................          55
V. Effective Date...........................................          58

Before Commissioners: Joseph T. Kelliher, Chairman; Nora Mead Brownell,
and Suedeen G. Kelly; Order on Rehearing and Clarification

    1. In this order we affirm, with certain clarifications, the
determinations made in Order Nos. 669 \1\ and 669-A.\2\
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    \1\ Transactions Subject to FPA Section 203, Order No. 669, 71
FR 1348 (January 6, 2006), FERC Stats. & Regs. ] 31,200 (2005). On
January 10, 2006, the Commission issued an errata notice to Order
No. 669 revising parts of the regulatory text to conform to the
version of the order that was issued in the Federal Register.
Transactions Subject to FPA Section 203, Docket No. RM05-34-000
(January 10, 2006) (unpublished errata notice).
    \2\ Transactions Subject to FPA Section 203, Order No. 669-A,
Order on Rehearing, 71 FR 28422 (May 16, 2006), FERC Stats. & Regs.
] 31,214 (2006).
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I. Introduction

    2. On August 8, 2005, the Energy Policy Act of 2005 (EPAct 2005)
\3\ was signed into law. Section 1289 (Merger Review Reform) of Title
XII, Subtitle G (Market Transparency, Enforcement, and Consumer
Protection),\4\ of EPAct 2005 amends section 203 of the Federal Power
Act (FPA).\5\
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    \3\ Energy Policy Act of 2005, Public Law No. 109-58, 119 Stat.
594 (2005).
    \4\ EPAct 2005 at 1281 et seq.
    \5\ 16 U.S.C. 824b (2000).
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    3. On October 3, 2005, the Commission issued a notice of proposed
rulemaking (NOPR) requesting comment on its proposal to amend its
regulations to implement amended section 203.\6\ On December 23, 2005,
the Commission issued a final rule (Order No. 669) adopting certain
modifications to 18 CFR 2.26 and 18 CFR part 33 to implement amended
section 203.\7\ Generally, Order No. 669:
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    \6\ Transactions Subject to FPA Section 203, 70 FR 58636
(October 7, 2005), FERC Stats. & Regs. ] 32,589 (2005).
    \7\ A full background to Order Nos. 669 and 669-A is set forth
in detail in those orders and will not be repeated in full here.

    (1) Established regulations implementing amended section 203;
    (2) Granted blanket authorizations, in some instances with
conditions, for certain types of transactions, including
acquisitions of foreign utilities by holding companies, intra-
holding company system financing and cash management arrangements,
certain internal corporate reorganizations, and certain acquisitions
of securities of transmitting utilities and electric utility
companies;
    (3) Defined terms, including ``electric utility company,''
``holding company,'' and ``non-utility associate company;''
    (4) Defined ``existing generation facility;''
    (5) Adopted rules on the determination of ``value'' as it
applies to various section 203 transactions;
    (6) Set forth a section 203 applicant's obligation to
demonstrate that a proposed transaction will not result in cross-
subsidization of a non-utility associate company or the pledge or
encumbrance of utility assets for the benefit of an associate
company; and
    (7) Provided for expeditious consideration of completed
applications for the approval of transactions that are not
contested, do not involve mergers, and are consistent with
Commission precedent.

    4. In Order No. 669, the Commission also announced that, at a
technical conference on the Public Utility Holding Company Act of 2005
(PUHCA 2005),\8\ to be held within the next year,\9\ we would
reevaluate certain issues raised in this proceeding. These issues
include whether the blanket authorizations granted in Order No. 669
should be revised, and whether additional protection against cross-
subsidization and pledges or encumbrances of utility

assets is needed.\10\ Order No. 669 became effective on February 8,
2006.
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    \8\ EPAct 2005 at 1261 et seq. 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) (PUHCA 2005 Final Rule),
order on reh'g, Order No. 667-A, 71 FR 28446 (May 16, 2006), FERC
Stats. & Regs. ] 31,213 (2006) (PUHCA 2005 Order on Rehearing),
reh'g pending.
    \9\ PUHCA 2005 Final Rule at P 17. The Commission stated that we
intend to hold a technical conference no later than one year after
PUHCA 2005 became effective to evaluate whether additional
exemptions, different reporting requirements, or other regulatory
actions need to be considered. The PUHCA 2005 Final Rule took effect
on February 8, 2006.
    \10\ Order No. 669 at P 4.
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    5. On April 24, 2006, the Commission issued an order on rehearing
(Order No. 669-A), reaffirming in part and granting rehearing in part
of Order No. 669. Order No. 669-A addressed certain inconsistencies
between Order No. 669 and the PUHCA 2005 Final Rule, expanded the focus
on protection of captive customers, revised certain blanket
authorizations, and provided new blanket authorizations. Among its
holdings, the Commission:

    (1) affirmed its determination that persons that own only Exempt
Wholesale Generators (EWGs), Qualifying Facilities (QFs), or Foreign
Utility Companies (FUCOs) are holding companies subject to section
203(a)(2);
    (2) found that while EWGs, QFs and FUCOs are ``electric utility
companies'' for purposes of PUHCA and for purposes of section 203,
persons that are holding companies solely by virtue of owning EWGs,
QFs or FUCOs should be granted a new blanket authorization to
acquire additional EWGs, QFs and FUCOs without Commission pre-
approval under section 203(a)(2);
    (3) modified the regulatory text to clarify that public
utilities have blanket authorization under section 203(a)(1) to
acquire securities of other public utilities in the context of
intra-system cash management transactions, subject to protections
against cross-subsidization and encumbrances of utility assets;
    (4) modified the regulatory text to provide, similar to the
previously granted blanket authorization under section 203(a)(2) for
certain holding company transactions involving internal corporate
reorganizations, a blanket authorization under section 203(a)(1) for
internal corporate reorganizations within the holding company, as
long as the restructuring does not result in the reorganization of a
traditional public utility that has captive customers or that owns
or provides transmission service over Commission-jurisdictional
transmission facilities;
    (5) granted additional blanket authorizations to certain holding
companies and their subsidiaries regulated by the Bank Holding
Company Act of 1956 \11\ to acquire securities in the normal course
of business, as a fiduciary, for derivatives hedging purposes
incidental to the business of banking, as collateral for a loan or
other limited purposes, but subject to certain restrictions and
reporting requirements; and
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    \11\ 12 U.S.C. 1843 (2000).
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    (6) established a blanket authorization for certain acquisitions
of utility securities for purposes of underwriting and hedging
transactions, but subject to conditions and reporting requirements.

    6. The Commission on rehearing also added several important
customer protection changes, including clarifying that ``captive
customers'' include wholesale and retail electric energy customers
served under cost-based regulation with respect to exemptions, and
providing that certain blanket authorizations do not apply if a public
utility owns or provides transmission service over Commission-
jurisdictional transmission facilities. Regarding blanket authorization
for holding companies to acquire securities of intrastate-only, local
distribution-only and/or retail-only utilities, if there is any public
utility within the holding company with captive customers or that owns
or provides transmission service over jurisdictional facilities, Order
No. 669-A also included a new condition that such company report the
acquisition to the Commission, including any state actions or
conditions related to the transaction, and provide an explanation of
why the transaction does not result in cross-subsidization.
    7. With respect to all section 203 transactions that do not receive
a blanket authorization, the Commission on rehearing added to the
regulatory text a specific requirement that an applicant disclose
existing pledges and/or encumbrances of utility assets and provide four
specific detailed showings that the proposed transaction will not
result in cross-subsidization or pledges or encumbrances of utility
assets or, if assurances cannot be provided that cross-subsidization,
pledges or encumbrances will not occur, an explanation of how such
cross-subsidization, pledge or encumbrance will be consistent with the
public interest.
    8. The Commission also reiterated that it will hold a technical
conference this year to reevaluate numerous issues raised in both this
proceeding and the PUHCA 2005 rulemaking proceeding. In Order No. 669-
A, the Commission committed to consider additional issues raised in
this proceeding, including whether the Commission should codify
specific safeguards that must be adopted for money pool transactions,
and whether our current merger policy should be revised.\12\
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    \12\ Order No. 669-A at P 91, 162.
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    9. Order No. 669-A became effective on June 15, 2006. The aspects
of Order No. 669-A for which requests for rehearing and clarification
were filed are described in more detail below.\13\
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    \13\ The entities that filed requests for rehearing and/or
clarification are listed in an appendix to this order.
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II. Discussion

    10. The requests for rehearing and/or clarification collectively
address five categories of issues discussed in Order No. 669-A. As
discussed below, we deny rehearing, and grant in part and deny in part
requests for clarification on each of these issues.

A. 18 CFR Section 33.1(b)(4)--Definition of ``Electric Utility
Company'' and 18 CFR Section 33.1(c)(1)(i) and (ii)--Blanket
Authorizations for Intrastate Commerce and Local Distribution

    11. Section 203(a)(2) provides:

    No holding company in a holding company system that includes a
transmitting utility or an electric utility shall purchase, acquire,
or take any security with a value in excess of $10,000,000 of, or,
by any means whatsoever, directly or indirectly, merge or
consolidate with, 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,
with a value in excess of $10,000,000 without first having secured
an order of the Commission authorizing it to do so.

    12. The definition of the term ``electric utility company'' is
important because it affects whether an entity is a holding company
subject to section 203(a)(2). In Order Nos. 669 and 669-A, the
Commission concluded that the most reasonable interpretation of the
term, as used in amended section 203(a)(2), is the definition in PUHCA
2005--``any company that owns or operates facilities used for the
generation, transmission, or distribution of electric energy for
sale.'' \14\ The definition thus is broader than the definition of
``public utility'' under the FPA; it is not limited to entities that
engage in wholesale or interstate transactions.
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    \14\ EPAct 2005 at 1262(5).
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    13. However, while Order Nos. 669 and 669-A found that it was not
reasonable to interpret section 203(a)(2) as being limited solely to
holding company acquisitions and mergers involving utilities making
wholesale sales or providing transmission in interstate commerce, the
Commission concluded that there would be no benefit from the
Commission's case-by-case evaluation of certain transactions under
section 203(a)(2).\15\ The Commission explained that our core
jurisdiction under Part II of the FPA continues to be transmission and
sales for resale of electric energy in interstate commerce.
Accordingly, we concluded that it is consistent with the public
interest to grant blanket authorizations

for the following: (1) Section 203(a)(2) purchases or acquisitions by
holding companies of companies that own, operate, or control only
facilities used solely for transmission or sales of electric energy in
intrastate commerce; and (2) section 203(a)(2) purchases or
acquisitions by holding companies of only facilities used solely for
local distribution and/or sales at retail regulated by a state
commission.\16\
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    \15\ An acquisition or merger involving ``any company that owns
or operates facilities used for the generation, transmission, or
distribution of electric energy for sale'' is not on its face
limited to interstate facilities. Order No. 669 at P 55 n.51; Order
No. 669-A at P 56 n.56.
    \16\ Order No. 669 at P 56; Order No. 669-A at P 62-63.
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    14. In Order No. 669-A, the Commission clarified that it was not
asserting jurisdiction over intrastate facilities, local distribution
facilities, or retail-only companies under the blanket authorizations.
Rather, it was asserting jurisdiction over holding company acquisitions
of such companies or facilities for the purpose of ensuring that
interstate interests are not adversely affected. The Commission also
stated that it would eliminate these blanket authorizations if
necessary to protect customers.\17\
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    \17\ Order No. 669-A at P 63.
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1. Requests for Rehearing and Clarification
    15. NARUC reiterates the arguments raised in its initial comments
and request for rehearing of Order No. 669, asserting that Congress did
not intend for the term ``electric utility company,'' as used in PUHCA
2005, to be incorporated into the Commission's regulations implementing
FPA section 203. First, NARUC argues that this interpretation violates
the fundamental rule of statutory construction, expressio unius est
exlusio alterius (express mention of one thing implies the exclusion of
another). NARUC argues that the absence of an explicit expansion of the
Commission's jurisdiction over entities in the PUHCA 2005 definition of
``electric utility company'' ``fatally undermines'' the Commission's
justification of the result reached on rehearing.\18\ Second, NARUC
argues that adoption of the term ``electric utility company''
improperly extends the Commission's authority under amended section 203
to include facilities used for the transmission or sales of electric
energy in intrastate commerce, facilities used for local distribution,
and facilities used for making retail sales. NARUC states that such
facilities fall under the exclusive jurisdiction of state
commissions.\19\ Moreover, NARUC asserts that, based on the
Commission's overreach in jurisdiction over such entities, the
Commission erred in granting a blanket authorization for holding
company acquisitions of facilities used solely in intrastate commerce
or used solely for local distribution and/or sales at retail regulated
by a state commission. NARUC argues that the Commission's
justifications for these blanket exemptions are valid, but the
Commission's stated rationale provides further evidence that the
Commission lacks jurisdiction over such entities.\20\
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    \18\ NARUC Rehearing Request at 4-5.
    \19\ Id. at 5-6.
    \20\ Id. at 6-7.
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2. Commission Determination
    16. NARUC's request for rehearing is denied. NARUC's request for
rehearing reiterates arguments made in its rehearing request of Order
No. 669. The Commission addressed those arguments fully in Order No.
669-A.\21\
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    \21\ See Order No. 669-A at P 41-54.
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    17. NARUC also argues that the Commission erred in Order No. 669-A
in granting blanket authorizations of holding company acquisitions of
facilities that NARUC asserts are outside the Commission's statutory
authority. NARUC notes that the Commission gave three reasons for
granting these blanket authorizations and argues that these reasons
actually highlight why the Commission does not have jurisdiction over
these matters. As the basis for this error, NARUC repeats the same
argument made on rehearing of Order No. 669. The Commission responded
fully to that argument as well in Order No. 669-A.\22\
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    \22\ See id. P 62-63.
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B. 18 CFR Section 33.1(c)(7)--Blanket Authorization for Cash Management
Programs

    18. In Order No. 669, the Commission stated that cash management
programs, money pools, and other intra-holding company financing
arrangements \23\ are a routine and important tool used by many large
companies to lower the cost of capital for their regulated subsidiaries
and to improve the rate of return the holding company and its
subsidiaries can receive on their money.\24\ The Commission found that
it was consistent with the public interest to grant blanket
authorization under section 203(a)(2) for holding companies and their
subsidiaries to take part in intra-system cash management programs.\25\
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    \23\ Order No. 669 at P 142; see also Order No. 669-A at P 84
(citing Regulation of Cash Management Practices, Order No. 634, 68
FR 40500 (July 8, 2003), FERC Stats. & Regs. ] 31,145 (2003) (Cash
Management Rule), Order No. 634-A, 68 FR 61993 (October 31, 2003),
FERC Stats. & Regs. ] 31,152 (2003) (Cash Management Rule II)).
    \24\ Order No. 669 at P 142.
    \25\ Id.
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    19. In Order No. 669-A, the Commission granted clarifications
regarding this blanket authorization. The Commission clarified that the
blanket authorization granted for money pool transactions is intended
to authorize ``horizontal'' transactions between public utility company
subsidiaries as well as ``downward'' loans from the holding company to
its public utility company subsidiaries. However, the blanket
authorization does not cover acquisitions of securities issued by
entities outside the established intra-system cash management program
\26\ or money pool.\27\
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    \26\ 18 CFR 33.1(c)(7).
    \27\ Order No. 669-A at P 89.
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1. Requests for Rehearing and Clarification
    20. In the time between the issuance of Order No. 669 and the
issuance of Order No. 669-A, several entities sought explicit
Commission approvals for certain of their subsidiary-to-subsidiary
transactions, transactions in their money pools and other such cash
management programs. EEI notes that, in several of these cases, the
Commission granted such approval, subject to limits and reporting
requirements imposed under the authorizations previously issued by the
Securities and Exchange Commission (SEC).\28\ The limits and reporting
requirements put in place by the SEC differ from those in Order No.
669-A. EEI seeks clarification that the companies with Intervening
Orders do not have to comply with the restrictions of their former SEC
financing orders, as of the effective date of Order No. 669-A.\29\
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    \28\ EEI Rehearing Request at 5-6 (citing Exelon Corporation,
114 FERC ] 61,116 (2006) (Exelon)). EEI identifies only one of the
orders in a group that it calls the ``Intervening Orders''--Exelon.
Two similar orders, issued the same day, are Entergy Services, Inc.,
114 FERC ] 61,120 (2006) (Entergy) and National Grid plc and
National Grid USA, 114 FERC ] 61,115 (2006) (National Grid). The
group of three will be referred to as the ``Intervening Orders.''
    \29\ EEI Rehearing Request at 4-8.
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    21. Second, EEI notes that the preamble to Order No. 669-A
describes the blanket authorization as covering transactions only
within a ``money pool,'' \30\ while the regulatory text uses the
broader term, ``intra-system cash management program.'' \31\ EEI argues
that the Commission should not distinguish between formal money pools
and other, less formal intra-system lending arrangements. It asks the
Commission to clarify that subsidiary-

to-subsidiary loans are authorized as part of cash management programs
even if such loans are not under formal money pool arrangements.\32\
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    \30\ Id. at 6 (citing Order No. 669-A at P 89).
    \31\ Id. (citing 18 CFR 33.1(c)(7)).
    \32\ Id. at 8-9.
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2. Commission Determination
    22. We will grant in part EEI's request for clarification on the
first issue. To the extent companies with Intervening Orders engage in
activities within Order No. 669-A's blanket authorizations, those
activities are not subject to the SEC limits and reporting requirements
incorporated by the Intervening Orders. However, activities exceeding
Order No. 669-A's blanket authorizations remain subject to the SEC
limits and reporting requirements incorporated by the Intervening
Orders.\33\ Activities authorized by the Intervening Orders were
conditioned on compliance with the prior SEC limits and reporting
requirements. Thus, we will waive those conditions only for activities
subsequently authorized generally in Order No. 669-A. Those activities
will be subject to the restrictions and requirements of Order No. 669-
A, instead of the Intervening Orders.
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    \33\ See Exelon, 114 FERC ] 61,116 at P 9; Entergy, 114 FERC ]
61,120 at P 10; National Grid, 114 FERC ] 61,115 at P 10.
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    23. EEI's second request for clarification, regarding whether
subsidiary-to-subsidiary loans are authorized as part of cash
management programs even if such loans are not under formal money pool
arrangements, is granted. Order No. 669-A's preamble inadvertently
suggested a narrower authorization than its regulatory text. However,
the blanket authorization granted under Order No. 669-A for a public
utility subsidiary within a holding company system to acquire the
security of another public utility within the system (horizontal
transactions) specifically depends on the transaction occurring within
the system's cash management program, subject to safeguards to prevent
cross-subsidization or pledges or encumbrances of utility assets.\34\
Further, we note that the Commission's Cash Management Rule prescribes
certain documentation requirements for entities participating in cash
management programs. For example, Cash Management Rule II requires that
cash management agreements be filed with the Commission on a public
basis.\35\ Neither rule prohibits participation by a holding company in
a cash management program in which the holding company's Commission-
regulated public utility subsidiary also participates, nor do they
dictate the content of or terms for participating in a cash management
program.\36\ Both rules, however, were issued under a broad array of
statutory authority reaching many Commission-regulated entities,
including public utilities under sections 203 and 204 of the FPA, in
order to provide greater transparency of cash management
activities.\37\ With this background, we clarify that the blanket
authorization in Order No. 669-A applies to activities that are part of
cash management programs, even if they are not part of a formal money
pool. Finally, we will reevaluate whether any changes need to be made
to our Cash Management Rule in the technical conference to be held
later this year.
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    \34\ 18 CFR 33.1(c)(7).
    \35\ Cash Management Rule II at P 43.
    \36\ Cash Management Rule at P 45; Cash Management Rule II at P
31, 36.
    \37\ Cash Management Rule II at P 19.
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C. Section 33.1(c)(2)--Blanket Authorizations for Purchases of
Securities

    24. In Order Nos. 669 and 669-A, the Commission provided a blanket
authorization under section 203(a)(2) for holding companies to
purchase, acquire, or take: (i) Any non-voting security (that does not
convey sufficient veto rights over management actions so as to convey
control) 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; (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; or (iii) any security of a subsidiary
company within the holding company system.\38\
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    \38\ 18 CFR 33.1(c)(2). See also Order No. 669 at P 144-45;
Order No. 669-A at P 97, 101-03.
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    25. On rehearing, the Commission declined to extend to public
utilities under section 203(a)(1) the blanket authorizations for
dispositions of utility securities of less than 10 percent that we
granted to public utility holding companies under section 203(a)(2).
The Commission decided that it would continue to review dispositions of
jurisdictional facilities by public utilities under FPA section
203(a)(1) on a case-by-case basis, finding that ``[c]oncerns with
control, markets and protection of captive customers or customers
receiving transmission service over jurisdictional transmission
facilities are closely linked with assets directly controlled by the
public utilities.'' \39\
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    \39\ Order No. 669-A at P 103.
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1. Requests for Rehearing and Clarification
    26. EEI reiterates arguments, previously denied on rehearing, that
the Commission should grant a blanket authorization under section
203(a)(1) for a public utility to dispose of up to 9.99 percent of its
voting securities. Such authority, it argues, would parallel the
blanket authorization granted in Order No. 669-A for holding companies
to acquire up to 9.99 percent of voting securities of a transmitting
utility or electric utility company and therefore, would be
appropriate. EEI does not formally seek rehearing on this issue and,
indeed, a second rehearing on the issue does not lie. However, in light
of EEI's concerns that lack of a section 203(a)(1) parallel blanket
authorization could thwart investment, we will include this issue in
the technical conference to be held within one year of the effective
date of amended section 203 and PUHCA 2005. EEI also seeks
clarification on transactions that involve securities with a value
below $10 million. EEI does not believe such transactions require
authorization under section 203(a)(1) even if 10 percent or more voting
securities are involved. It asks the Commission to confirm that the $10
million threshold is a minimum jurisdictional amount, regardless of the
percentage of voting stocks involved.
    27. EEI also asks that the Commission clarify that dispositions of
less than 10 percent or more of voting securities, and of any amount of
non-voting securities, do not require section 203(a)(1) review.\40\
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    \40\ 40 EEI Rehearing Request at 10-12.
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2. Commission Determination
    28. The Commission clarifies that, if a section 203(a)(1)(C)
transaction involves securities with a value below $10 million, the
transaction does not require authorization under section 203(a)(1)(C)
even if 10 percent or more of voting securities are involved. Section
203(a)(1) addresses four types of transactions in separate parts. Under
parts (A), (C) and (D), a value in excess of $10 million is indeed the
threshold below which section 203(a)(1) does not apply, unless a public
utility is disposing of the whole of its facilities under section
203(a)(1)(A).\41\
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    \41\ Section 203(a)(1)(A) provides that no public utility shall,
without having secured an order authorizing it to do so: ``sell,
lease, or otherwise dispose of the whole of its facilities subject
to the jurisdiction of the Commission, or any part thereof of a
value in excess of $10,000,000.'' Because of the placement of the
comma in this sentence, we do not interpret the $10,000,000
threshold as applying to dispositions of the whole of a utility's
jurisdictional facilities.

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    29. On the question of the 10 percent limitation, EEI relies on
Goldman Sachs \42\ as support for its suggestion that the Commission
adopt a jurisdictional threshold of 10 percent of voting securities
before a public utility must seek authorization for transactions under
section 203(a)(1). As noted, rehearing was already denied on this
issue. EEI asks for blanket authorization under section 203(a)(1) for
public utilities to engage in transactions involving non-voting
securities in any amount. EEI cites to paragraph 15 of Goldman Sachs,
but that paragraph does not support EEI's contention. The Commission
provided there an example of how a group of non-utility companies under
common control might each purchase just under 10 percent of a public
utility, but stop at that point in order to avoid becoming holding
companies under section 1262(8) of EPAct 2005 and, therefore,
potentially subject to section 203(a)(2). The Commission explained that
authorization for such transactions may nevertheless require approval
under other provisions of section 203, and specifically mentioned
sections 203(a)(1)(A) and (B). This was not a suggestion that
acquisitions of voting securities in an amount less than 10 percent or
that acquisitions of non-voting securities in any amount cannot trigger
the requirement for prior authorization by the Commission. Accordingly,
EEI's request for clarification on this issue is denied.
---------------------------------------------------------------------------

    \42\ EEI Rehearing Request at 10 (citing The Goldman Sachs
Group, Inc., 114 FERC ] 61,118, at P 15 (Goldman Sachs), order on
reh'g, 115 FERC ] 61,303 (2006)).
---------------------------------------------------------------------------

D. 18 CFR Section 33.1(c)(8)--Blanket Authorization for a Holding
Company Owning Only EWGs, QFs or FUCOs To Acquire Additional EWGs, QFs
or FUCOs

    30. In Order No. 669, the Commission rejected requests that we
determine that only companies that own traditional utilities, not those
that own solely FUCOs, EWGs and/or QFs, are ``holding companies'' under
amended section 203.\43\ The Commission noted that ``holding company''
in PUHCA 2005 means ``any company that directly or indirectly owns,
controls, or holds, with the power to vote, 10 percent or more of the
outstanding voting securities of a public utility company or of a
holding company of any public utility company; * * * '' \44\ PUHCA 2005
defines ``public-utility company'' to include an ``electric utility
company.'' \45\
---------------------------------------------------------------------------

    \43\ Order No. 669 at P 70.
    \44\ Id. (citing EPAct 2005 at 1262(8)).
    \45\ EPAct 2005 at 1262(14).
---------------------------------------------------------------------------

    31. The Commission found that while Congress expressly excluded
from the definition of holding company certain banks and other
institutions, it did not similarly exclude from the definition of
holding company entities that only own QFs, EWGs or FUCOs. Rather,
section 1266(a) of PUHCA 2005 specifically directs the Commission to
exempt QF/EWG/FUCO holding companies from the federal access to books
and records provision; thus, the very language of the provision
recognizes that such entities are holding companies. It directs the
Commission to issue a final rule to exempt ``any person that is a
holding company, solely with respect to one or more [QFs, EWGs, or
FUCOs].'' Therefore, consistent with the concurrent determination in
the PUHCA 2005 rehearing order, the Commission concluded that companies
that acquire 10 percent or more of an EWG, FUCO or QF are holding
companies as that term is used in PUHCA 2005 as well as FPA section
203(a)(2).\46\
---------------------------------------------------------------------------

    \46\ Order No. 669-A at P 49-51.
---------------------------------------------------------------------------

    32. However, to ensure that investment in the electric industry is
not hampered and that encouragement of QFs is not undermined, the
Commission granted a blanket authorization under FPA section 203(a)(2)
for holding companies that own or control only EWGs, QFs or FUCOs to
acquire the securities of additional EWGs, FUCOs or QFs.\47\
---------------------------------------------------------------------------

    \47\ Id. at P 52; 18 CFR 33.1(c)(8).
---------------------------------------------------------------------------

1. Requests for Rehearing and Clarification
    33. TAPSG states that the Commission erred in creating a new
blanket authorization under section 203(a)(2) for holding companies
that own or control only EWGs, QFs, or FUCOs to acquire the securities
of additional EWGs, QFs, or FUCOs.\48\ TAPSG asserts that the blanket
authorization overlooks Congressional concern about the competitive
effects of transfers of generation facilities and creates confusion
that would discourage, rather than encourage, new investment. It
contends that a holding company's acquisition of additional EWGs and
QFs in the same geographic market could raise competitive concerns,
particularly if the holding company owns other EWGs or QFs in the same
geographic market that is a load pocket. TAPSG also argues that the
confusion created by the blanket authorization under section 203(a)(2),
in conjunction with section 203(a)(1) review of certain EWG and QF
transactions, will create uncertainty that could chill, rather than
encourage investment. TAPSG further argues that, if the Commission does
not rescind the blanket authorization in 18 CFR section 33.1(c)(8), it
should clarify which transactions remain subject to section 203(a)(1)
review.
---------------------------------------------------------------------------

    \48\ TAPSG Rehearing Request at 2-5.
---------------------------------------------------------------------------

    34. In this regard, TAPSG and APPA/NRECA ask the Commission to
affirm the conclusion in Order No. 669 that a holding company's
acquisition of securities of an EWG that is a public utility, by which
the holding company acquires control of the EWG, is a disposition of
jurisdictional assets by the EWG and requires a filing with Commission
under FPA section 203(a)(1) by the EWG.\49\ APPA/NRECA argue that this
clarification is important because a single holding company could gain
market power by acquiring a number of EWGs in a relevant geographic
market.
---------------------------------------------------------------------------

    \49\ Id. at 5-6 (citing Order No. 669 at P 60 n.55); APPA/NRECA
Rehearing Request at 9-12 (same).
---------------------------------------------------------------------------

    35. TAPSG and APPA/NRECA request clarification that the blanket
authorization does not override the Commission's conclusion regarding
the scope of section 203(a)(1)(D), concerning the acquisition of an
existing generation facility with a value of $10 million that is used
for interstate wholesale sales and over which the Commission has
jurisdiction, and that if a public utility acquires an existing
generation facility used for Commission-jurisdictional sales, whether a
QF or any other type of generation facility, the transaction is subject
to section 203 review. TAPSG argues that the plain language of section
203(a)(1)(D) requires the review of acquisitions of generators, such as
EWGs.\50\
---------------------------------------------------------------------------

    \50\ TAPSG Rehearing Request at 6-7 (citing Order No. 669 at P
87); APPA/NRECA Rehearing Request at 11-12.
---------------------------------------------------------------------------

    36. Moreover, TAPSG requests that the Commission clarify that a
transaction will trigger section 203(a)(1)(D) review when a holding
company that controls an EWG that is a public utility acquires another
EWG or QF. They maintain that this is required by Enova Corporation and
Pacific Enterprises (Enova).\51\ In addition, TAPSG argues that under
Enova, section 203(a)(1)(D) review is required: (1) For the acquisition
of another EWG or QF where the holding company itself is not

a public utility but owns or controls a public utility (such as an
EWG), and (2) for the acquisition by a holding company that is not a
public utility of a holding company that is not itself a public utility
but that owns a public utility.\52\
---------------------------------------------------------------------------

    \51\ TAPSG Rehearing Request at 7-8 (citing Enova, 79 FERC ]
61,107, at 61,494 (1997)); APPA/NRECA Rehearing Request at 11
(citing Enova, 79 FERC ] 61,107 at 61,491-94 and Central Vermont
Public Service Corporation, 39 FERC ] 61,295, at 61,960 (1987)).
    \52\ TAPSG Rehearing Request at 8.
---------------------------------------------------------------------------

    37. In summary, TAPSG asks the Commission to clarify that the
section 203(a)(2) blanket authorization applies only to: (1) ``a
holding company owning/controlling only EWGs, QFs, or FUCOs that (a) is
not a public utility, (b) does not yet own or control a public utility
(such as an EWG), and (c) is acquiring its first EWG or QF''; or (2)
``a holding company owning/controlling only EWGs, QFs, or FUCOs that
acquires a FUCO.'' \53\
---------------------------------------------------------------------------

    \53\ Id.
---------------------------------------------------------------------------

    38. In comparison, Occidental requests that the Commission clarify
(or, in the alternative, grant rehearing) that the section 203(a)(2)
blanket authorization in section 33.1(c)(8) applies to an acquisition
of securities of holding companies that are holding companies solely
with respect to holding EWGs, QFs, or FUCOs.\54\ Occidental argues that
it would be inconsistent with the intent of Order No. 669-A for the
acquisition of securities of such holding companies not to also be
covered by this blanket authorization.\55\ In addition, Occidental
argues that it would be arbitrary and capricious to provide blanket
authorization for holding companies that own or control only EWGs, QFs,
or FUCOs only when they acquire directly the securities of additional
EWGs, QFs or FUCOs and not where the acquisition is structured as
acquisition of securities of a holding company that holds only EWGs,
QFs, or FUCOs. Occidental argues that what it requests would not
undermine any Commission policy or efforts to prevent cross-
subsidization. Occidental argues that not granting blanket authority
for the acquisition of securities of such holding companies will create
unnecessary burdens on transactions and discourage investment in the
electric industry.
---------------------------------------------------------------------------

    \54\ Occidental Rehearing Request at 3-5.
    \55\ Id. (citing Order No. 669-A at P 52).
---------------------------------------------------------------------------

2. Commission Determination
    39. We reject TAPSG's request to rescind the blanket authorization
in section 33.1(c)(8), granted under section 203(a)(2) for holding
companies that own or control only EWGs, QFs, or FUCOs to acquire the
securities of additional EWGs, FUCOs, or QFs. The concerns raised in
TAPSG's rehearing petition are focused on the competitive effects of
generation transfers involving EWGs and QFs if this section 203(a)(2)
blanket authorization is retained. As an initial matter (and as
discussed further below), we note that this blanket authorization in no
way affects any section 203(a)(1) authorizations required by EWGs
themselves. The vast majority of EWGs located in the United States are
public utilities and, to the extent such EWGs seek to sell or transfer
control of their jurisdictional facilities to a holding company, such
EWGs will be subject to a competitive review of the transaction under
section 203(a)(1)(A), irrespective of the holding company's blanket
exemption.\56\ Thus, TAPSG's concerns that EWG acquisitions will escape
competitive review are misplaced.
---------------------------------------------------------------------------

    \56\ Further, although most holding companies are not public
utilities, to the extent a holding company is also a public utility,
a transaction in which it acquired an EWG's or QF's generation
facilities (if such facilities are used for jurisdictional wholesale
sales) may trigger the requirements of section 203(a)(1)(D).
---------------------------------------------------------------------------

    40. With respect to QFs, many QFs (cogeneration QFs, non-geothermal
small power production QFs with capacity of 30 MWs or less, and
geothermal small power production) are exempt from section 203 of the
FPA and thus are not treated as public utilities subject to section
203(a)(1)(A); thus, unlike the situation with EWGs, if such QFs were to
sell or transfer control of their jurisdictional facilities to a
holding company, there would be no competitive review by the Commission
under section 203(a)(1).\57\ However, what TAPSG ignores is that there
was no Federal review of such transactions by this Commission or by the
SEC prior to EPAct 2005. QFs were largely exempted from PUHCA 1935
regulation by virtue of the Commission's exemption authority under the
Public Utility Regulatory Policies Act of 1978 (PURPA), and companies
that owned QFs (or EWGs, for that matter) were not considered holding
companies by virtue of owning an EWG or QF under PUHCA 1935.
Accordingly, our blanket exemption here does nothing more than maintain
the status quo with respect to any regulatory review required of
holding company acquisitions of QF facilities.\58\ While we recognize
the possibility that market power issues associated with QF ownership
could become a concern in the future, even where the ownership is by a
holding company that owns only QFs, EWG and FUCOs and there are no
captive customers in the entire holding company system, TAPSG has not
convinced us that there is a problem to remedy at this time or that our
decision in any way undermines Congressional intent. Further, if in the
future problems become apparent with respect to holding company
acquisitions of QFs, the Commission may revisit the exemption from
section 203 provided to QFs under PURPA and/or revisit the section
203(a)(2) blanket authorization at issue here.\59\ We also disagree
with TAPSG that the blanket authority creates any confusion that would
discourage investment, and no other commenter argues that this is the
case. At this time, we see no added benefit from the Commission's case-
by-case evaluation of these transactions under section 203(a)(2).\60\
---------------------------------------------------------------------------

    \57\ However, if a transaction involved a public utility and a
QF, section 203 review, including a competitive review, may be
required. If a public utility acquires all or part of a QF's
jurisdictional facilities, the transaction may be subject to FPA
section 203(a)(1)(A). Similarly, if a public utility proposes to
merge or consolidate its facilities with those of a QF, the
transaction would be subject to section 203(a)(1)(B), which applies
when a public utility merges or consolidates its facilities with
those of ``any other person.'' ``Person'' would include a QF.
Further, a transaction in which a public utility seeks to acquire a
QF's existing generation facility (if the QF facility is used for
jurisdictional wholesale sales) may trigger section 203(a)(1)(D).
    \58\ We also have weighed the fact that to require new case-by-
case review of holding company acquisitions of QFs could impose a
substantial burden on QFs.
    \59\ We note that in the Commission's recent rulemaking
implementing revised section 210(n) of PURPA, the Commission
proposed to eliminate certain QF exemptions from FPA sections 205
and 206 and sought comment on whether it should eliminate other
exemptions. In the final rule, however, the Commission retained the
FPA section 203 exemption. Revised Regulations Governing Small Power
Production and Cogeneration Facilities, Order No. 671, 71 FR 7,852
at P 102 (February 15, 2006), FERC Stats. & Regs. P 31,203 (2006),
order on reh'g, Order No. 671-A, 71 FR 30,585 (May 30, 2006), FERC
Stats. & Regs. P 31,219 (2006).
    \60\ See Order No. 669 at P 55; Order No. 669-A at P 56, 62.
---------------------------------------------------------------------------

    41. Moreover, TAPSG does not explain why we should limit the
applicability of the blanket authority in 18 CFR 33.1(c)(8) to
situations where: (1) The holding company is not and does not own a
public utility, and is acquiring its first EWG or QF; or (2) the
holding company is acquiring a FUCO. As noted, it is likely that
section 203(a)(1) would be triggered in any event for EWGs and, in many
instances, QFs. Therefore, TAPSG's request that this restriction be
placed on the applicability of the blanket authority is denied.
    42. We grant APPA/NRECA's request to clarify that a holding
company's acquisition of the securities of an EWG public utility, by
which the holding company acquires control of the public utility EWG,
may be a jurisdictional disposition of assets by the EWG, which

requires approval under section 203(a)(1) even if the holding company
has blanket authority under section 203(a)(2). The blanket authority
under section 203(a)(2) in no way affects whether separate
authorization for a particular transaction is required under section
203(a)(1). We reaffirm the statements made in Order No. 669 regarding
section 203(a)(1) review regarding EWGs \61\ and QFs.\62\ Granting
blanket authority in section 33.1(c)(8) under section 203(a)(2) does
not affect authorizations required under section 203(a)(1). Thus, TAPSG
and APPA/NRECA's requests for clarification to this effect are granted.
---------------------------------------------------------------------------

    \61\ Order No. 669 at P 60 n.55 stating:
    [A] holding company acquisition of securities of an EWG would in
some circumstances trigger section 203 review in any event by virtue
of section 203(a)(1). This is because the EWG could well be a public
utility and, to the extent the holding company acquired ``control''
of the EWG, we would construe the EWG to be ``disposing'' of its
jurisdictional facilities and thus required to file for approval
under section 203(a). A similar situation involving acquisition of
securities of a QF would not trigger section 203 review, since QFs
currently are exempted from FPA section 203 filing requirements by
the Commission's PURPA regulations.
    \62\ Id. P 87 stating:
    [I]f a public utility acquires an existing generation facility
used for Commission-jurisdictional sales, whether a QF or any other
type of generation facility, the transaction is subject to section
203. Although certain QFs themselves are exempted from any filing
requirements under section 203 by virtue of our PURPA regulations,
this does not mean that public utilities that acquire QFs are
exempt. Additionally, there is no limitation in amended section
203(a)(1)(D) on the type of generation facilities that trigger
section 203 review, if they are used for interstate wholesale sales
and the Commission has jurisdiction over them for ratemaking
purposes. Further, even if the Commission had the discretion to
exempt QF acquisitions from section 203 review, we do not think it
would be necessarily consistent with the public interest to do so in
light of EPAct 2005's elimination of QF ownership restrictions.
---------------------------------------------------------------------------

    43. We will continue to review dispositions of jurisdictional
facilities by public utilities under section 203(a)(1) on a case-by-
case basis and we will also review public utility acquisitions of
generating facilities under the new section 203(a)(1)(D) on a case-by-
case basis.\63\ TAPSG requests other clarifications interpreting
section 203(a)(1) in light of the blanket authority granted in section
33.1(c)(8). In effect, it asks us to modify the section 203(a)(2)
blanket authority and we decline to do so. TAPSG's requests for
clarification to this effect are denied.
---------------------------------------------------------------------------

    \63\ Order No. 669-A at P 103.
---------------------------------------------------------------------------

    44. Finally, we agree with Occidental that Order No. 669-A should
be interpreted to provide blanket authorization for holding companies
that own or control only EWGs, QFs, or FUCOs to acquire securities of a
holding company that holds only EWGs, QFs, or FUCOs. We do so, however,
consistent with our prior holding in Order No. 669 that such
acquisitions will trigger review under section 203(a)(1) if the
transaction results in a change of control of an EWG that is a public
utility owned by the holding company whose securities are being
acquired.

E. Section 33.2(j)--General Information Requirements Regarding Cross-
Subsidization

    45. As modified by Order No. 669-A, section 33.2(j)(1) requires
that a section 203 applicant must explain, with appropriate evidentiary
support (Exhibit M to the application), how it is assuring that the
proposed transaction will not result in cross-subsidization of a non-
utility associate company or the pledge or encumbrance of utility
assets for the benefit of an associate company. This explanation must
disclose all existing pledges or encumbrances of utility assets and
include a detailed showing that the transaction will not result in: (A)
Transfers of facilities between a traditional public utility associate
company that has captive customers or that owns or provides
transmission service over jurisdictional transmission facilities, and
an associate company; (B) new issuances of securities by traditional
public utility associate companies that has captive customers or that
owns or provides transmission service over jurisdictional transmission
facilities, for the benefit of an associate company; (C) new pledges or
encumbrances of assets of a traditional public utility associate
company that has captive customers or that owns or provides
transmission service over jurisdictional transmission facilities, for
the benefit of an associate company; or (D) new affiliate contracts
between non-utility associate companies and traditional public utility
associate companies that have captive customers or that own or provide
transmission service over jurisdictional transmission facilities, other
than non-power goods and services agreements subject to review under
sections 205 and 206 of the FPA.\64\ Section 33.2(j)(2) states that if
no such assurance can be provided, the applicant must explain how such
cross-subsidization, pledge, or encumbrance will be consistent with the
public interest.\65\
---------------------------------------------------------------------------

    \64\ 18 CFR 33.2(j)(1)(i) and (ii).
    \65\ Id. at 33.2(j)(2).
---------------------------------------------------------------------------

1. Requests for Rehearing and Clarification
    46. APPA/NRECA argue that the Commission should amend 18 CFR
33.2(j)(1) to require that the explanation in Exhibit M address ``how
applicants are providing assurance that it is not reasonably
foreseeable that the proposed transaction will result in, at the time
of the transaction or in the future, cross-subsidization of a non-
utility associate company or pledge or encumbrance of utility assets
for the benefit of an associate company.'' \66\ APPA/NRECA argue that
the omission of the phrase ``at the time of the transaction or in the
future'' from section 33.2(j)(1), a phrase found in the parallel
regulation at section 33.1(c)(5) (the blanket authorization for holding
companies that include a transmitting utility or an electric utility to
acquire a FUCO), creates conflicting requirements and will ``create
confusion and invite abuse.'' \67\ APPA/NRECA assert that section
33.2(j)(1) is inconsistent with Congressional intent that the
Commission have broad authority to ensure that section 203 transactions
do not result in cross-subsidization or asset pledges or encumbrances,
even after the transaction is consummated, unless the Commission has
found that they are consistent with the public interest.
---------------------------------------------------------------------------

    \66\ APPA/NRECA Rehearing Request at 2 (emphasis in the
original).
    \67\ Id. at 4.
---------------------------------------------------------------------------

    47. APPA/NRECA also ask that the Commission clarify or amend
section 33.2(j) to state that Exhibit M must be verified by a duly
authorized corporate official of the holding company under 18 CFR
385.2005 (Subscription and verification). APPA/NRECA argue this
requirement is consistent with section 33.1(c)(5) and the Commission's
existing regulations for section 203 applications.\68\
---------------------------------------------------------------------------

    \68\ Id. at 6-7.
---------------------------------------------------------------------------

    48. Moreover, APPA/NRECA request the Commission clarify that if the
Commission later finds that an approved transaction has resulted in, at
the time of the transaction or in the future, cross-subsidization of a
non-utility associate company or pledge or encumbrance of utility
assets for the benefit of an associate company, the Commission may find
that such cross-subsidization, pledge, or encumbrance violates the
Commission order and the relevant entities can be penalized. APPA/NRECA
maintain that this will help to ensure that the holding company and its
senior corporate officials are held responsible for the statements made
in a section 203 application and to provide them notice of the
consequences of a violation.\69\
---------------------------------------------------------------------------

    \69\ Id. at 7-8.

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

2. Commission Determination
    49. We will grant APPA/NRECA's request in part. The Commission does
not accept APPA/NRECA's assertion that section 33.2(j)(1), as revised
in Order No. 669-A, creates confusion and invites abuse simply because
it contains different requirements than the regulation against which
APPA/NRECA chose to compare it or that it is inconsistent with
Congressional intent. We agree, however, that adding to the regulations
a verification requirement regarding the contents of the application
and a requirement for the exercise of reasonable foresight in providing
the explanation required under Exhibit M will help make the regulation
more effective. With respect to reasonable foresight, we will modify
the regulatory text of 18 CFR 33.2(j)(1) as follows:

    Of how applicants are providing assurance, based on facts and
circumstances known to them or that are reasonably foreseeable, that
the proposed transaction will not result in, at the time of the
transaction or in the future, cross-subsidization of a non-utility
associate company or pledge or encumbrance of utility assets for the
benefit of an associate company.* * *

    50. These changes will not create an undue burden on the
applicants. Our rules already require that the information in the
application be verified by one having knowledge of the matters
contained in the application and exhibits.\70\
---------------------------------------------------------------------------

    \70\ A specific verification requirement applicable to Exhibit
M, as requested by APPA/NRECA, is unnecessary since, under section
33.7, the original application, of which Exhibit M is a part, must
be ``signed by a person or persons having authority with respect
thereto and having knowledge of the matters therein set forth, and
must be verified under oath.''
---------------------------------------------------------------------------

    51. In response to APPA/NRECA's request, the Commission clarifies
that, if the Commission later finds that an approved transaction has
resulted in cross-subsidization or a pledge or encumbrance, the
Commission may find that it constitutes a violation of a Commission
order and is subject to consequent penalties. Whether particular facts
violate a Commission order is a matter for determination in an
individual proceeding. If a violation is found, the appropriate remedy
or penalty is also a matter properly addressed in that proceeding.
Accordingly, a blanket statement in the regulations is not necessary.

III. Information Collection Statement

    52. The regulations of the Office of Management and Budget (OMB)
\71\ require that OMB approve certain information requirements imposed
by an agency. OMB has approved the information requirements contained
in Order Nos. 669 and 669-A. Specifically, OMB approved the following
information collection and assigned the corresponding OMB control
numbers: ``Application under Federal Power Act Section 203'' (FERC-519)
(1902-0082). This order denies rehearing requests and only clarifies
the provisions of Order Nos. 669 and 669-A. This order does not make
substantive modifications to the Commission's information collection
requirements and, accordingly, OMB approval for this order is not
necessary. However, the Commission will send a copy of this order to
OMB for informational purposes.
---------------------------------------------------------------------------

    \71\ 5 CFR 1320.12 (2005).
---------------------------------------------------------------------------

    53. Interested persons may obtain information on the information
requirements by contacting the following: The Federal Energy Regulatory
Commission, 888 First Street, NE., Washington, DC 20426 [Attention:
Michael Miller, Office of the Executive Director, ED-34], Phone: (202)
502-8415, Fax:<PHONE_NUMBER>, e-mail<EMAIL_ADDRESS>    54. To submit comments concerning the collection(s) of information
and provide estimates on the associated burden of these requirements,
please send your comments to the contact listed above and to the Office
of Management and Budget, Office of Information and Regulatory Affairs,
Washington, DC 20503 [Attention: Desk Officer for the Federal Energy
Regulatory Commission], Phone:<PHONE_NUMBER>. Comments should be e-
mailed to<EMAIL_ADDRESS>and reference the OMB Control
number listed above.

IV. Document Availability

    55. 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 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.
    56. 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 ``RM05-34'' in
the docket number field.
    57. User assistance is available for eLibrary and the Commission's
Web site during normal business hours. For assistance, please contact
FERC Online Support at 1-866-208-3676 (toll free) or<PHONE_NUMBER> (e-
mail at FERCOnlineSupport@FERC.gov), or the Public Reference Room at
202-502-8371, TTY<PHONE_NUMBER> (e-mail at
public.referenceroom@ferc.gov).

V. Effective Date

    58. The revisions in this order on rehearing will become effective
on August 28, 2006.

List of Subjects

18 CFR Part 2

    Administrative practice and procedure, Electric power, Natural gas,
Pipelines, Reporting and recordkeeping requirements.

18 CFR Part 33

    Electric utilities, Reporting and recordkeeping requirements,
Securities.

The Commission Orders

    Requests for rehearing are hereby denied and requests for
clarification are hereby granted in part and denied in part, as
discussed in the body of this order.

    By the Commission.
Magalie R. Salas,
Secretary.

0
In consideration of the foregoing, under the authority of EPAct 2005,
the Commission is amending part 33 of Chapter I, Title 18, Code of
Federal Regulations, as set forth:

PART 33--APPLICATIONS UNDER FEDERAL POWER ACT SECTION 203

0
1. Section 33.2 amended by revising (j)(1) introductory text to read as
follows:

Sec.  33.2  Contents of application--general information requirements.

* * * * *
    (j) An explanation, with appropriate evidentiary support for such
explanation (to be identified as Exhibit M to this application):
    (1) Of how applicants are providing assurance, based on facts and
circumstances known to them or that are reasonably foreseeable, that
the proposed transaction will not result in, at the time of the
transactions or in the future, cross-subsidization of a non-utility
associate company or pledge or encumbrance of utility assets for the
benefit of an associate company, including:
* * * * *

Appendix A

    Note: The following Appendix will not be published in the Code
of Federal Regulations.

      List of Petitioners Requesting Rehearing and/or Clarification
                          [Petitioner acronyms]
------------------------------------------------------------------------
           Acronym                                Name
------------------------------------------------------------------------
APPA/NRECA...................  American Public Power Association and the
                                National Rural Electric Cooperative
                                Association.
EEI..........................  Edison Electric Institute.
NARUC........................  National Association of Regulatory
                                Utility Commissioners.
Occidental...................  Occidental Chemical Corporation.
TAPSG........................  Transmission Access Policy Study Group.
------------------------------------------------------------------------

 [FR Doc. E6-12047 Filed 7-26-06; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register Volume 82, Number 120 (Friday, June 23, 2017)]
[Notices]
[Page 28646]
[FR Doc No: 2017-13111]

=======================================================================
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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. NJ17-10-001]

Notice of Filing; City of Dover, Delaware

    Take notice that on June 15, 2017, City of Dover, Delaware
submitted its Supplement to the May 16, 2017 tariff filing (Deficiency
Filing).
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date.
Anyone filing a motion to intervene or protest must serve a copy of
that document on the Applicant and all the parties in this proceeding.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the eFiling link at http://www.ferc.gov. Persons unable to file electronically should submit an
original and 5 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for electronic review in the
Commission's Public Reference Room in Washington, DC. There is an
eSubscription link on the Web site that enables subscribers to receive
email notification when a document is added to a subscribed docket(s).
For assistance with any FERC Online service, please email
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.
    Comment Date: 5:00 p.m. Eastern Time on June 26, 2017.

    Dated: June 19, 2017.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2017-13111 Filed 6-22-17; 8:45 am]
 BILLING CODE 6717-01-P


<EPA REGISTRATION DIVISION COMPANY NOTICE OF FILING FOR PESTICIDE
PETITIONS PUBLISHED IN THE FEDERAL REGISTER >

<EPA Registration Division contact: Laura Nollen,<PHONE_NUMBER>

Interregional Research Project Number 4 (IR-4)

Petition Number (PP#) 2E8020>

<	EPA has received a pesticide petition, PP# 2E8020, from IR-4, Rutgers,
The State University of New Jersey, 500 College Road East, Suite 201-W,
Princeton, NJ 08540 proposing, pursuant to section 408(d) of the Federal
Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a (d), to amend 40
CFR part 180.498 by establishing a tolerance for residues of
sulfentrazone
(N-[2,4-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-methyl-5-oxo-1H-1,2
,4-triazol-1-yl]phenyl]-methanesulfonamide) and its metabolites
3-hydroxymethyl-sulfentrazone
(N-[2,4-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-3-hydroxymethyl-5-oxo
-1H-1,2,4-triazol-1-yl]phenyl]methanesulfonamide) and 3-desmethyl
sulfentrazone
(N-[2,4-dichloro-5-[4-(difluoromethyl)-4,5-dihydro-5-oxo-1H-1,2,4-triazo
l-1-yl]phenyl]methanesulfonamide) in or on the raw agricultural
commodity soybean, vegetable, succulent (Edamame) at 0.15 ppm.  EPA has
determined that the petition contains data or information regarding the
elements set forth in section 408 (d) (2) of FDDCA; however, EPA has not
fully evaluated the sufficiency of the submitted data at this time or
whether the data supports granting of the petition. Additional data may
be needed before EPA rules on the petition.>

<A. Residue Chemistry>

<	1. Plant metabolism. The metabolism of sulfentrazone in plants is
adequately understood for the existing and proposed tolerances. Crop
residues found after the pre-emergence and the pending proposed
post-emergence uses were similar in that the major metabolites were
3-hydroxymethyl sulfentrazone and 3-desmethyl sulfentrazone. In
rotational crops, sulfentrazone is metabolized via four different
pathways: (i) Oxidation of the 3-methyl group to form 3-hydroxymethyl
sulfentrazone, followed by further oxidation to form sulfentrazone
carboxylic acid which is decarboxylated to 3-desmethyl sulfentrazone;
(ii) hydrolysis of the trifluoromethyl group to form desdifluoromethyl
sulfentrazone which is oxidized and decarboxylated to form
desdifluoromethyl desmethyl sulfentrazone; (iii) hydrolysis of the
sulfonamide group to form desmethylsulfonyl sulfentrazone; and (iv)
scission of the phenyl and triazole rings to produce methyl triazole.
The corresponding phenyl metabolites are believed to remain bound. EPA
determined that tolerances based on the parent and 3-hydroxymethyl
sulfentrazone are therefore appropriate.>

<	2. Analytical method. There is a practical analytical method for
detecting and measuring levels of sulfentrazone and its metabolites in
or on food with a limit of quantitation that allows monitoring of food
with residues at or above the levels set or proposed in the
tolerances.  The analytical enforcement method for sulfentrazone was
used with minor modification that eliminated several clean-up and
derivatization steps that was required for GC/MSD but not for
LC/MS/MS.  The analytical method for sulfentrazone involves separate
analyses for parent and its metabolites.  The parent is analyzed by
evaporation and reconstitution of the sample prior to analysis by
LC/MS/MS GC/ECD.  The metabolites samples were refluxed in the presence
of acid and cleaned up with solid phase extraction prior to analysis by
LC/MS/MS.

>

<	3. Magnitude of residues. Sulfentrazone was applied to succulent pea
and succulent lima bean trials in the appropriate EPA regions.  The RACs
were harvested at the appropriate growth stages. The subsequent analyses
of the RACs determined that the residues of sulfentrazone and its
metabolites would not exceed the established tolerances. IR-4 is
requesting that the extrapolation of this data be used in support of the
proposed tolerance in vegetable soybean (edamame).>

<B. Toxicological Profile>

<	1. Acute toxicity.  A battery of acute toxicity studies placed
technical sulfentrazone in Toxicity Categories III and IV. No evidence
of sensitization was observed following dermal application in guinea
pigs. In an acute neurotoxicity study in rats at gavage doses of 0, 750,
or 2,000 mg/kg, a NOEL of 250 mg/kg and a LOEL of 750 mg/kg were based
upon increased incidences of clinical signs, Functional Observation
Battery (FOB) findings, and decreased motor activity which were reversed
by day 14 post-dose. There was no evidence of neuropathology.>

<	2. Genotoxicty. A reverse gene mutation assay (salmonella typhimurium)
yielded negative results, both with and without metabolic activation.  A
mouse lymphoma forward gene mutation assay yielded negative results with
equivocal results without activation.  A mouse micronucleus assay test
was negative following intraperitoneal injection of 340 mg/kg.>

<	3. Reproductive and developmental toxicity. A prenatal oral
developmental toxicity study in the rat with dose levels at 25.0 or 50.0
mg/kg/day established a maternal NOEL of 25 mg/kg/day based on decreased
body weight gain, increased spleen weight, and microscopic changes in
the spleen, and a fetal NOEL of 10 mg/kg/day was based on fetal death,
reduced body weights, and alterations in skeletal development at higher
doses.  A supplemental oral developmental toxicity study conducted in
rats at oral dose levels of 25.0 and 50.0 mg/kg/day to test for cardiac
effects at the request of the EPA, did not reveal any significant
effects on fetal cardiac development. The results of this study
confirmed the maternal and fetal findings of the previously conducted
developmental study on sulfentrazone in rats and did not alter the study
conclusions.

In a dermal developmental study in the rat at doses of 0, 5, 25, 50, 100
and 250 mg/kg/day, a maternal (systemic) No Observed Adverse Effect
Level (NOAEL) was established at 250 mg/kg/day. Significant
treatment-related increases in the fetal and litter incidences of
incompletely ossified lumbar vertebral arches, hypoplastic or wavy ribs,
and incompletely ossified or nonossified ischia or pubes occurred at the
high-dose (250 mg/kg/day). An additional significant increase in the
high-dose fetal incidence of variations in the sternebrae (incompletely
ossified or unossified) was not judged to be treatment-related. At 250
mg/kg/day, the mean numbers of thoracic vertebral and rib ossification
sites were significantly decreased, a high-dose effect of treatment with
sulfentrazone consistent with the significant treatment-related
hypoplasia observed in the skeletal evaluation of the ribs. Therefore,
the developmental (fetal) Lowest Observed Effect Level (LOEL) is 250
mg/kg/day based on decreased fetal body weight; increased incidences of
fetal variations: hypoplastic or wavy ribs, incompletely ossified lumbar
vertebral arches, and incompletely ossified ischia or pubes; and reduced
number of thoracic vertebral and rib ossification sites. The
developmental (fetal) NOEL is 100 mg/kg/day.

A developmental toxicity study in rabbits was conducted at gavage dose
levels of 0, 100, 250, or 375 mg/kg/day. Treatment-related incidences of
decreased feces and hematuria were noted at 250 mg/kg/day or greater. In
addition, at the 375 mg/kg/day dose level, five rabbits aborted.
Significant reductions in mean body weight change were observed for the
dosing period (GD 7- 19) and for the study duration (GD 0-29, both
before and after adjustment for gravid uterine weight) at the 250 and
375 mg/kg/day dose levels. Therefore, the maternal (systemic) LOEL is
250 mg/kg/day, based upon increased abortions, clinical signs (hematuria
and decreased feces), and reduced body weight gain. The maternal
(systemic) NOEL is 100 mg/kg/day. Skeletal evaluation in fetuses
revealed dose- and treatment-related findings at the 375 mg/kg/day dose
level. These included significant increases in both the fetal and litter
incidences of fused caudal vertebrae (a malformation) and of partially
fused nasal bones (a variation). In addition, at 375 mg/kg/day,
significant treatment-related reductions in ossification site averages
were observed for metacarpals and both fore- and hindpaw phalanges.
Therefore, the developmental (fetal) LOEL is 250 mg/kg/day, based upon
increased resorptions, decreased live fetuses per litter, and decreased
fetal weight. The developmental (fetal) NOEL is 100 mg/kg/day.

A two-generation reproduction study in the rat at dietary levels of 14,
33, or 46 mg/kg/day in males and 16, 40, or 56 mg/kg/day in females
established a NOEL for systemic and reproductive/developmental
parameters of 14 mg/kg/day for males and 16 mg/kg/day for females. The
LOEL for systemic and reproductive/development parameters was 33
mg/kg/day for males and 40 mg/kg/day for females. Systemic effects were
comprised of decreased body weight gains, while
reproductive/developmental effect at the LOEL included degeneration
and/or atrophy in the testes, with epididymal sperm deficits, in the
second (F1) generation males. Male fertility in the F1 generation was
reduced at higher doses; litter size, pup survival, and pup body weight
for both generations were also effected at higher doses.

A supplemental two-generation rat reproduction study was conducted at
dietary intake levels of 50, 100, 200, or 500 ppm with a NOEL for
reproductive parameters of 200 ppm. This study confirmed the
reproductive/developmental effects observed in the first two-generation
reproductive toxicity study. It was the conclusion of the RfD/Peer
Review Committee that, under the conditions of the studies reviewed,
sulfentrazone caused developmental and reproductive toxicity. The
results of these studies elicited a high level of concern by the
Committee, since the developmental toxicity studies demonstrated
embryo/fetal toxicity at treatment levels that were not maternally
toxic, and significant toxic effects were observed primarily in the
second generation animals of the reproduction study. Because these
animals had been exposed to sulfentrazone in utero, the possibility that
the observed reproductive toxicity resulted from a developmental and/or
genotoxic mechanism was suggested.>

<	4. Subchronic toxicity. A 90-day subchronic toxicity study was
conducted in rats, with dietary intake levels of 0, 3.3, 6.7, 19.9,
65.8, 199.3, or 534.9 mg/kg/day for males and 0, 4, 7.7, 23.1, 78.1,
230.5, or 404.3 milligrams/kilograms/day (mg/kg/day) for females
respectively. No Observed Effect Levels (NOELs) of 19.9 mg/kg/day in
males and 23.1 mg/kg/day in females were based on clinical anemia.

A 90-day subchronic feeding study was conducted in mice by dietary admix
at doses of 0, 10.3, 17.8, 60.0, 108.4, or 194.4 mg/kg/day for males and
0, 13.9, 29.0, 79.8, 143.6, or 257.0 mg/kg/day for females,
respectively. NOELs of 60 mg/kg/day (males) and 79.8 mg/kg/day (females)
were based on decreases in body weights and/or gains; decreased
erythrocytes, hemoglobin and hematocrit values; and splenic microscopic
pathology.

In a 90-day subchronic feeding study in dogs administered by dietary
admix at doses of 0, 10, 28, or 57 mg/kg/day for males and 0, 10, 28, or
73 mg/kg/day for females, a NOEL of 28 mg/kg/day was determined for both
males and females based on decreases in hemoglobin and hematocrit,
elevated alkaline phosphatase levels, increased liver weights and
microscopic liver as well as splenic changes.

A 90-day subchronic neurotoxicity study in the rat was conducted at
dietary levels of 30, 150, or 265 mg/kg/day in males, and 37, 180, or
292 mg/kg/day in females, with a NOEL of 30 mg/kg/day in males and 37
mg/kg/day in females. The LOEL was 150 mg/kg/day for males and 180
mg/kg/day for females based on increased incidences of clinical signs,
decreased body weights, body weight gains, and food consumption in
females and increased motor activity in females at week 13. There were
no neurohistopathological effects on the peripheral or central nervous
system.>

<	5. Chronic toxicity. A 12-month feeding study in dogs was dosed at
levels of 0.0, 24.9, or 61.2 mg/kg/day for male dogs and 0.0, 10.4,
29.6, or 61.9 mg/kg/day for female dogs in the control through high-dose
groups, respectively, with a NOEL of 24.9 mg/kg/day for males and 29.6
mg/kg/day for females based on hematology effects and microscopic liver
changes.

An 18-month feeding/carcinogenicity study in mice was conducted with
dietary intake of 0, 46.6, 93.9, 160.5, or 337.6 mg/kg/day for males and
0, 58.0, 116.9, 198.0, or 407.1 mg/kg/day for females. A NOEL of 93.9
mg/kg/day in males and 116.9 mg/kg/day in females was based on decreases
in hemoglobin and hematocrit. There were no treatment-related increases
in tumors of any kind observed at any dose level.

In a 24-month chronic feeding/oncogenicity study in rats at dietary
doses of 0, 24.3, 40.0, 82.8, or 123.5 mg/kg/day for males and 20.0,
36.4, 67.0, or 124.7 mg/kg/day for females, an overall NOEL of mg/kg/day
in males and 36.4 mg/kg/day in females was based on hematology effects
and reduced body weights. There was no evidence of an oncogenic
response.>

<	6. Animal metabolism. A metabolism study in rats indicated that
approximately 84 to 104% of the orally administered dose of
sulfentrazone was excreted in the urine, and that the pooled urinary
radioactivity consisted almost entirely of 3-hydroxymethyl
sulfentrazone. Pooled fecal radioactivity showed that the major
metabolite consisted of 3-hydroxymethyl-sulfentrazone (1.26 to 2.55% of
the administered dose). The proposed metabolic pathway appeared to be
conversion of the parent compound mainly to
3-hydroxymethyl-sulfentrazone (excreted in urine and feces).>

<	7. Metabolite toxicology. NA - Remove.>

<	8. Endocrine disruption. An evaluation of the potential effects on the
endocrine systems of mammals has not been determined; however, no
evidence of such effects was reported in the chronic or reproductive
toxicology studies described above. There was no observed pathology of
the endocrine organs in these studies. There is no evidence at this time
that sulfentrazone causes endocrine effects.>

<C. Aggregate Exposure>

<	1. Dietary exposure. A short-term aggregate exposure assessment was
conducted to determine the total exposure to sulfentrazone residues from
both dietary and non-dietary routes.  Aggregate exposure to
sulfentrazone was evaluated for two separate products (crop herbicide
and residential lawn/turf herbicide).  Exposure from these two uses
occurred by multiple routes (dietary, dermal and incidental ingestion).
Aggregation is conducted for dietary and non-dietary residential
exposures and it is to represent reasonable conditions of exposure. The
aggregate exposure estimates for all adults, adult females and toddlers
were less than 100% of the PAD.>

<	i. Food. The primary source for human exposure to sulfentrazone would
be from ingestion of both raw and processed agricultural commodities,
including all registered and pending crops.  In December 2010, the
Revised Acute and Chronic Aggregate Dietary (Food and Drinking Water)
Exposure and Risk Assessment for the Section 3 registration request to
add new uses on: Brassica, Head and Stem, Subgroup 5A; Brassica, Leafy
Greens, Subgroup 5B; Melon Subgroup 9A; Fruiting Vegetable, Group 8 and
Okra; Pea, Succulent; Flax; Strawberry; Tuberous and Corm Vegetable,
Subgroup 1C; and Miscellaneous Fruiting Vegetables was conducted by the
EPA Health Effects Division (PC Code 129081; DP Barcode D384090).  A
Tier 1 exposure analysis has been performed to estimate the exposure for
the U.S. general population as well as all adults, adult females, and
children (all ages) sub-populations for raw and processed commodities
that might be associated with sulfentrazone residue.  Field trial data
for registered and the pending minor crop uses, acceptable bridging
residue data, and consumption data from the USDA Continuing Surveys of
Food Intake by Individuals (CSFIIs) were inputs into the Dietary
Exposure Evaluation Model (DEEM) software - ver. 2.14.  No significant
additional dietary risk was identified for registered and pending minor
crops.>

<	ii. Drinking water. Based on the FIRST and SCI-GROW models the EECs of
sulfentrazone plus its major metabolite 3-carboxylic acid for acute
exposures are estimated to be 35.8 ppb for surface water and 26 ppb for
groundwater.  (Drinking Water Exposure Assessment for Section 3 New Use
Registration of Sulfentrazone on Head/Stem Brassica Subgroup 5A, Leafy
Greens Subgroup 5B, Melon Subgroup 9A, Fruiting Vegetable Group 8, Okra,
Succulent Pea, Strawberry and Tuberous/Corm Vegetables Subgroup 1C.  PC
Code No. 129081; DP Barcode: D349322; 8/28/2008).  The EECs for chronic
exposures are estimated to be 7.8 ppb for surface water and 26.0 ppb for
ground water>

<	2. Non-dietary exposure. The primary source for human non-dietary
exposure to sulfentrazone will be from post-application exposure to
treated residential turfgrass.   The routes of sulfentrazone exposure
were dermal post-application exposure for adults and toddlers, and
post-application incidental ingestion of sulfentrazone due to the
hand-to-mouth behavior of toddlers.  A worst case short-term non-dietary
exposure analysis was conducted using algorithms and default factors
published in US EPA’s Standard Operating Procedures (SOPs) for
Residential Exposure Assessments.  The dermal exposure estimates for all
adults, adult females and toddlers were 0.013, 0.016 and 0.023
mg/kg/day, respectively.  The exposure estimate for incidental ingestion
due to hand-to-mouth behavior for toddlers was 0.0026 mg/kg/day. The
resulting total (combined oral and dermal since the relevant endpoints
both have the same effect) non-dietary exposure estimates were 0.013,
0.016 and 0.025 mg/kg/day for all adults, adult females and toddlers,
respectively.>

<D. Cumulative Effects>

<	The Agency will reach a tolerance decision based on the best currently
available and useable information, without regard to common mechanism
issues. In the case of sulfentrazone, EPA has determined that it does
not currently have the capability to apply the information in its files
to a resolution of common mechanism issues in a manner that would be
useful in a risk assessment. This tolerance determination therefore does
not take into account common mechanism issues. The Agency will reexamine
the tolerances for sulfentrazone, if reexamination is appropriate, after
the Agency has determined how to apply common mechanism issues to its
pesticide risk assessments.>

<E. Safety Determination>

<	1. US Population. An aPAD of 0.14 mg/kg/day was used in the acute
dietary risk assessment for females (13-49 yrs) based on an oral NOAEL
of 14 mg/kg/day with a composite  UF of 100X (UFA = 10X; UFH = 10X and
FQPA SF =1X). This NOAEL was derived from a 2-generation reproductive
toxicity study in rats based on offspring toxicity (i.e., reduced
prenatal viability (fetal & litter), reduced litter size, increased
number of stillborn pups, reduced pup and litter postnatal survival and
decreased pup body weights throughout lactation) observed at the LOAELs
of 33 (males) and 40 mg/kg/day (females).

An aPAD of 2.5 mg/kg/day was used in the acute dietary risk assessment
for general population including infants and children based on an oral
NOAEL of 14 mg/kg/day with a composite UF of 100X (UFA = 10X; UFH = 10X
and FQPA SF =1X). This NOAEL was derived from an acute neurotoxicity rat
study based on increased incidence of clinical signs and FOB parameters
and decreased motor activity observed at the LOAEL of 750 mg/kg/day.

An cPAD of 0.1 mg/kg/day was used in the chronic dietary risk assessment
for all populations based on an oral NOAEL of 10 mg/kg/day with a
composite UF of 100 X (UFA = 10X; UFH = 10X and FQPA SF =1X). This NOAEL
was derived from a prenatal developmental toxicity study in the rat
based upon decreased mean fetal weights, and retardation in skeletal
development evidenced by an increased number of litters with any
variation and by decreased number of caudal vertebral and metacarpal
ossification sites observed at the developmental LOAEL of 25 mg/kg/day.

Acute dietary exposure estimates at the 95th percentile for the U.S.
general population and all population subgroups are less than 1% aPAD.
A lower aPAD for females 13-49 years old (0.14 mg/kg/day) was considered
in the dietary assessment, compared to all other population subgroups
(2.5 mg/kg/day).  The population subgroup with the greatest risk was
females 13-49 year old, which utilized less than 3% of the aPAD for that
sub-group.  Resulting chronic risk estimates are below HED’s level of
concern.  The US General Population category utilized less than 2% of
the cPAD.

2. Infants and Children.

Acute dietary exposure estimates at the 95th percentile for all Infants
and Children subgroups are less than 1% aPAD.  For chronic exposure, the
most highly exposed population subgroup was Non-nursing Infants, which
utilizes less than 5% of the cPAD. Resulting acute and chronic risk
estimates are below HED’s level of concern.]>

<F. International Tolerances>

<	There are no Codex Alimentarius Commission (Codex) Maximum Residue
Levels (MRLs) for sulfentrazone.>

 PAGE

 PAGE   8


[Federal Register Volume 76, Number 200 (Monday, October 17, 2011)]
[Notices]
[Pages 64163-64164]
[FR Doc No: 2011-26774]

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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Submission Deadline for Schedule Information for San Francisco
International Airport for the Summer 2012 Scheduling Season

AGENCY: Department of Transportation, Federal Aviation Administration
(FAA).

ACTION: Notice of submission deadline.

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

SUMMARY: Under this notice, the FAA announces the designation of San
Francisco International Airport (SFO) as a Level 2 airport under the
International Air Transport Association (IATA) Worldwide Slot
Guidelines (WSG) effective for the Summer 2012 scheduling season. The
FAA has determined this designation is necessary based primarily on
runway capacity, existing congestion and delays, and expected increased
congestion due to a multi-year airport construction project. The FAA
announces a deadline of October 20, 2011, for carriers to submit to the
FAA schedule information for all planned operations at SFO between the
hours of 0600 and 2259, Pacific time, (1300 and 0559 UTC). This
deadline is a week later than the IATA deadline due to late notice of
the Level 2 designation. The FAA will grant an additional short
extension if a carrier requires additional time to complete its initial
submission, provided that extension would not impede preparations for
the IATA Schedules Conference in November 2011.

DATES: Schedules must be submitted no later than October 20, 2011.

ADDRESSES: Schedules may be submitted by mail to the Slot
Administration Office, AGC-200, Office of the Chief Counsel, 800
Independence Ave., SW., Washington, DC 20591; facsimile:<PHONE_NUMBER>;
or by e-mail to<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Robert Hawks, Office of the Chief
Counsel, Federal Aviation Administration, 800 Independence Avenue, SW.,
Washington, DC 20591; telephone number:<PHONE_NUMBER>; fax number: 202-
267-7971; e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: IATA guidelines define a Level 2 airport as
one where there is the potential for congestion during some periods of
the day, week, or season, which can be resolved by voluntary
cooperation between airlines. The FAA has determined that SFO should be
designated as Level 2 based primarily on runway capacity, existing
congestion

and delays, and the potential that congestion may increase during
construction of Runway Safety Areas (RSA) from 2012 to 2015.
    The FAA has reviewed runway capacity at SFO over the last two
years. The airport acceptance rate for arrivals ranges between
approximately 30 and 48 per hour depending on weather conditions. The
lower value reflects operations in instrument meteorological
conditions, and the higher value reflects visual meteorological
conditions. A number of other variables impact an airport's arrival and
departure rates, including runway configuration, fleet mix, surface
movements, and individual aircraft performance.
    The FAA, the airport authority, and other stakeholders (including
representatives of carriers operating at SFO) have been meeting
regularly to review construction plans, identify ways to improve
airport and airspace efficiency, and mitigate construction impacts
whenever possible. These efforts will continue with the goal to
mitigate negative impacts to capacity, but the FAA expects some
decrease in runway capacity during construction. The construction's
impact to capacity is not definitively known but will be determined as
construction plans are finalized. Accordingly, it is not possible to
specifically define runway capacity limits. In conducting its review of
planned schedules, the FAA will consider factors such as average runway
arrival and departure rates, historical demand, experienced congestion
and delays, and projections on operational impacts related to the
construction.
    The FAA will review the cumulative scheduled flight information
beginning with the Summer 2012 scheduling season to monitor major
scheduling peaks that could result in lengthy delays. This advance
review of schedule information would permit the FAA to discuss the
operational implications of proposed schedules and suggest changes
before schedules are finalized and published. The FAA expects the Level
2 review alone may not reduce existing congestion and delays. Rather,
the FAA expects to mitigate potential delay increases resulting from
new or retimed flights. The FAA believes there is available capacity at
SFO, especially during off-peak times, to accommodate additional
operations. During the construction, forecasted congestion and delays
could be mitigated through voluntary carrier scheduling decisions (such
as retiming operations to less congested times and reducing overall
operations by combining frequencies and upgauging aircraft). The FAA
believes a Level 2 designation would provide the necessary information
to assist carriers with these voluntary scheduling decisions.
    Finally, the FAA expects the Level 2 designation will allow
interested parties to address any imbalance between demand and capacity
and work cooperatively to reduce delays. The FAA supports the Level 2
process as a preferred and viable alternative to full slot coordination
under Level 3 or other administrative actions to address congestion
during the RSA construction. The FAA will review the Level 2
designation, at a minimum, in advance of each scheduling season.
    Accordingly, the FAA designates SFO as a Level 2 airport between
the hours of 0600 and 2259, Pacific time, (1300 and 0559 UTC), but
carriers may submit schedule information for any time throughout the
day. Carriers should submit to the FAA schedule information for all
planned operations no later than October 20, 2011. This deadline is one
week later than the IATA deadline because of the late designation of
SFO as Level 2.
    The FAA recognizes some carriers may have difficulty meeting the
schedule submission deadline. While most have at least preliminary
schedule plans, some may require additional time to prepare the initial
schedule submission. The FAA will grant an additional short extension
(not exceeding two weeks). The FAA intends to follow the IATA WSG for
the mid-November Schedules Conference to the extent possible and needs
schedules as soon as possible to meet IATA deadlines.
    Carriers should submit schedule information in sufficient detail
including, at minimum, the carrier, flight number, scheduled time of
arrival or departure, half-hour period, frequency, and effective dates.
IATA standard schedule information format and data elements (Standard
Schedules Information Manual or SSIM) may be submitted and may provide
additional information that could be beneficial in assessing
operational impacts.
    The summer scheduling season is from March 25, 2012, through
October 27, 2012, in recognition of the IATA scheduling season dates.
The FAA understands there may be differences in schedule times due to
different U.S. daylight saving time dates, and the FAA will accommodate
these to the extent possible.
    SFO currently is designated Level 2 for certain international
passenger terminal facilities. This notice does not replace that local
schedule facilitation process. Carriers should submit schedule
information to the local facilitator according to the IATA schedule.
The FAA will work with the local facilitator to ensure consistency of
planned schedule information.

    Issued in Washington, DC, on October 11, 2011.
Rebecca B. MacPherson,
Assistant Chief Counsel for Regulations.
[FR Doc. 2011-26774 Filed 10-13-11; 8:45 am]
BILLING CODE 4910-13-P