Federal Register / Vol. 71, No. 103 / Tuesday, May 30, 2006 / Rules and Regulations

Federal Register / Vol. 71, No. 103 / Tuesday, May 30, 2006 / Rules and Regulations

rmajette on PROD1PC67 with RULES1

part 97), establishes, amends, suspends,

or revokes SIAPs and/or Weather

Takeoff Minimums. The complete

regulatory description of each SIAP

and/or Weather Takeoff Minimums is

contained in official FAA form

documents which are incorporated by

reference in this amendment under 5

U.S.C. 552(a), 1 CFR part 51, and 14

CFR 97.20. The applicable FAA Forms

are identified as FAA Forms 8260–3,

8260–4, 8260–5 and 8260–15A.

Materials incorporated by reference are

available for examination or purchase as

stated above.

The large number of SIAPs and/or

Weather Takeoff Minimums, their

complex nature, and the need for a

special format make their verbatim

publication in the Federal Register

expensive and impractical. Further,

airmen do not use the regulatory text of

the SIAPs and/or Weather Takeoff

Minimums but refer to their depiction

on charts printed by publishers of

aeronautical materials. Thus, the

advantages of incorporation by reference

are realized and publication of the

complete description of each SIAP and/

or Weather Takeoff Minimums

contained in FAA form documents is

unnecessary. The provisions of this

amendment state the affected CFR

sections, with the types and effective

dates of the SIAPs and/or Weather

Takeoff Minimums. This amendment

also identifies the airport, its location,

the procedure identification and the

amendment number.

The Rule

This amendment to 14 CFR part 97 is

effective upon publication of each

separate SIAP and/or Weather Takeoff

Minimums as contained in the

transmittal. Some SIAP and/or Weather

Takeoff Minimums amendments may

have been previously issued by the FAA

in a Flight Data Center (FDC) Notice to

Airmen (NOTAM) as an emergency

action of immediate flight safety relating

directly to published aeronautical

charts. The circumstances which

created the need for some SIAP, and/or

Weather Takeoff Minimums

amendments may require making them

effective in less than 30 days. For the

remaining SIAPs and/or Weather

Takeoff Minimums, an effective date at

least 30 days after publication is

provided.

Further, the SIAPs and/or Weather

Takeoff Minimums contained in this

amendment are based on the criteria

contained in the U.S. Standard for

Terminal Instrument Procedures

(TERPS). In developing these SIAPs

and/or Weather Takeoff Minimums, the

TERPS criteria were applied to the

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19:03 May 26, 2006

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conditions existing or anticipated at the

affected airports. Because of the close

and immediate relationship between

these SIAPs and/or Weather Takeoff

Minimums and safety in air commerce,

I find that notice and public procedure

before adopting these SIAPs and/or

Weather Takeoff Minimums are

impracticable and contrary to the public

interest and, where applicable, that

good cause exists for making some

SIAPs and/or Weather Takeoff

Minimums effective in less than 30

days.

Conclusion

The FAA has determined that this

regulation only involves an established

body of technical regulations for which

frequent and routine amendments are

necessary to keep them operationally

current. It, therefore—(1) Is not a

‘‘significant regulatory action’’ under

Executive Order 12866; (2) is not a

‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

regulatory evaluation as the anticipated

impact is so minimal. For the same

reason, the FAA certifies that this

amendment will not have a significant

economic impact on a substantial

number of small entities under the

criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air Traffic Control, Airports,

Incorporation by reference, and

Navigation (Air).

Issued in Washington, DC on May 19,

2006.

James J. Ballough,

Director, Flight Standards Service.

Adoption of the Amendment

30585

* * * Effective 06 July 2006

Atlanta, GA, Hartsfield-Jackson Atlanta Intl,

RNAV (GPS) RWY 10, Orig

Atlanta, GA, Hartsfield-Jackson Atlanta Intl,

RNAV (GPS) RWY 28, Orig

Raleigh/Durham, NC, Raleigh-Durham Intl,

ILS OR LOC RWY 23R, Amdt 10, ILS RWY

23R (CAT II) ILS RWY 23R (CAT III)

* * * Effective 03 August 2006

Iliamna, AK, Iliamna, RNAV (GPS) RWY 7,

Amdt 2

Beckwourth, CA, Nervino, RNAV (GPS) Z

RWY 25, Orig

Beckwourth, CA, Nervino, RNAV (GPS) Y

RWY 25, Orig–A

Murrieta/Temecula, CA, French Valley,

RNAV (GPS) RWY 18, Orig

Murrieta/Temecula, CA, French Valley, GPS

RWY 18, Orig–B, CANCELLED

San Diego, CA, Brown Field Muni, RNAV

(GPS) RWY 8L, Orig

San Diego, CA, Brown Field Muni, GPS RWY

8L, Orig, CANCELLED

Grand Junction, CO, Walker Field, Takeoff

Minimums and Textual DP, Amdt 10

Idaho Falls, ID, Idaho Falls Rgnl, VOR RWY

2, Amdt 6B

Idaho Falls, ID, Idaho Falls Rgnl, RNAV

(GPS) RWY 2, Orig

Olathe, KS, Johnson County Executive,

RNAV (GPS) RWY 18, Amdt 1

Olathe, KS, Johnson County Executive,

RNAV (GPS) RWY 36, Amdt 1

Louisville, KY, Louisville Intl-Standiford

Field, RNAV (GPS) RWY 29, Orig

Louisville, KY, Louisville Intl-Standiford

Field, GPS RWY 29, Orig–A, CANCELLED

Detroit, MI, Detroit Metropolitan/Wayne

County, RNAV (GPS) RWY 27L, Amdt 1A

Olean, NY, Cattaraugus County-Olean, RNAV

(GPS) RWY 4, Amdt 1

Olean, NY, Cattaraugus County-Olean, RNAV

(GPS) RWY 22, Amdt 1

Burlington/Mount Vernon, WA, Skagit

Regional, RNAV (GPS) RWY 10, Orig

Burlington/Mount Vernon, WA, Skagit

Regional, GPS RWY 10, Amdt 1A,

CANCELLED

[FR Doc. E6–8290 Filed 5–26–06; 8:45 am]

BILLING CODE 4910–13–P

■ Accordingly, pursuant to the authority

delegated to me, under Title 14, Code of

Federal Regulations, part 97 (14 CFR

part 97) is amended by establishing,

amending, suspending, or revoking

Standard Instrument Approach

Procedures and Weather Takeoff

Minimums effective at 0901 UTC on the

dates specified, as follows:

PART 97—STANDARD INSTRUMENT

APPROACH PROCEDURES

■ 1. The authority citation for part 97

DEPARTMENT OF ENERGY

Federal Energy Regulatory

Commission

18 CFR Part 292

[Docket No. RM05–36–001; Order No. 671–

A]

Revised Regulations Governing Small

Power Production and Cogeneration

Facilities

continues to read as follows:

Issued May 22, 2006.

Authority: 49 U.S.C. 106(g), 40103, 40106,

40113, 40114, 40120, 44502, 44514, 44701,

44719, 44721–44722.

AGENCY: Federal Energy Regulatory

■ 2. Part 97 is amended to read as

SUMMARY: In this order on rehearing, the

Federal Energy Regulatory Commission

follows:

PO 00000

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Commission.

ACTION: Final order; order on rehearing.

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Federal Register / Vol. 71, No. 103 / Tuesday, May 30, 2006 / Rules and Regulations

(Commission) reaffirms its

determinations and grants clarification

in part of Order No. 671, which

amended the Commission’s regulations

governing small power production and

cogeneration facilities.

DATES: Effective Date: The final rule and

order on rehearing will become effective

June 29, 2006.

FOR FURTHER INFORMATION CONTACT:

Paul Singh (Technical Information),

Office of Energy Markets and Rates,

Federal Energy Regulatory

Commission, 888 First Street, NE.,

Washington, DC 20426. (202) 502–

8576.

Samuel Higginbottom (Legal

Information), Office of the General

Counsel, Federal Energy Regulatory

Commission, 888 First Street, NE.,

Washington, DC 20426. (202) 502–

8561.

Eric D. Winterbauer (Legal Information),

Office of the General Counsel, Federal

Energy Regulatory Commission, 888

First Street, NE., Washington, DC

20426. (202) 502–8329.

SUPPLEMENTARY INFORMATION:

Before Commissioners: Joseph T.

Kelliher, Chairman; Nora Mead

Brownell, and Suedeen G. Kelly.

1. On February 2, 2006, the Federal

Energy Regulatory Commission

(Commission) issued Order No. 671,1 in

which the Commission revised its

regulations governing qualifying small

power production and cogeneration

facilities. Specifically, the Commission,

among other things, eliminated certain

exemptions from rate regulation that

were previously available to qualifying

facilities (QFs). Several parties have

requested rehearing or clarification. For

the reasons discussed below, we deny

the requests for rehearing and grant

clarification in part.

Introduction

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2. Order No. 671 was issued in

response to the Energy Policy Act of

2005 (EPAct 2005),2 which modified in

relevant part section 210 of the Public

Utility Regulatory Policies Act of 1978

(PURPA). Specifically, Order No. 671

sought to: (1) Ensure that new qualifying

cogeneration facilities are using their

thermal output in a productive and

beneficial manner; that the electrical,

thermal, chemical and mechanical

output of new qualifying cogeneration

facilities is used fundamentally for

1 Revised Regulations Governing Small Power

Production and Cogeneration Facilities, Order No.

671, 71 FR 7852 (February 15, 2006), FERC Stats.

& Regs. ¶ 31,203 (2006).

2 Energy Policy Act of 2005, Public Law No. 109–

58, 119 Stat. 594 (2005).

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17:59 May 26, 2006

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industrial, commercial, residential or

institutional purposes; and that there is

continuing progress in the development

of efficient electric energy generating

technology; (2) amend Form 556 3 to

reflect the criteria for new qualifying

cogeneration facilities; (3) eliminate

ownership limitations for qualifying

cogeneration and small power

production facilities; and (4) amend the

exemptions available to QFs from the

requirements of the Federal Power Act

(FPA) 4 and the Public Utility Holding

Company Act of 1935 (PUHCA 1935).5

ARIPPA,6 the National Rural Electric

Cooperative Association (NRECA) and

the Non-Utility QF Group have

requested rehearing.

Exemption of QFs From FPA Section

205/206 Authority

Background

3. In Order No. 671, the Commission

stated that in light of significant changes

that have occurred in the industry since

the first QF facilities were introduced

and in light of changing electric markets

and resulting market power issues that

have arisen in recent years, it was no

longer necessary or appropriate to

completely exempt QFs from sections

205 and 206 of the FPA.7 However, the

Commission clarified that QFs would

continue to have an exemption from

sections 205 and 206 of the FPA when

a sale is made pursuant to a state

regulatory authority’s implementation of

PURPA. In addition, to avoid creating

the hardship that removal of exemptions

might cause for smaller QFs, the

Commission provided that facilities 20

MW or smaller would remain exempt

from sections 205 and 206 of the FPA.

Requests for Rehearing

4. ARIPPA argues against the

imposition of rate regulation on QFs

that are not owned by electric utilities.

It argues that the rule change is a ‘‘baitand-switch,’’ in that it would impose

rate regulation on QF owners who had

been induced to invest in and develop

QFs by the exemption from the state and

Federal rate regulation.

5. ARIPPA points to the Commission’s

statement that ‘‘a complete exemption is

not necessary to encourage the

3 18 CFR 131.80.

4 16 U.S.C. 824 et seq.

5 15 U.S.C. 79; See Public Law No. 109–58, 1261–

77, 119 Stat. 594, 972–78 (2005).

6 ARIPPA, formerly known as the Anthracite

Region Independent Power Producers Association,

states that it is a not-for-profit association

comprising fourteen independent power producers

in Pennsylvania that generate approximately 1,346

MW of electrical power buring coal mining refuse.

7 16 U.S.C. 824d, 824e.

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development’’ of cogeneration.8 It

emphasizes the word ‘‘development,’’

noting that this might be a reasonable

basis for a rule that newly-built QFs

would not enjoy exemptions from rate

regulation, but argues that the statement

does not address the issue of the

Commission’s treatment of those who

invested in such facilities in the past in

reliance on the exemption from rate

regulation. It argues that the

Commission’s statement that QF’s had

no reasonable expectation that the rules

would not be amended is wrong. It

argues that that was the inducement for

developers to invest.

6. ARIPPA argues that the

Commission cites to no record for its

assertion that non-QF sales by QFs

could potentially have a significant

market effect. It argues that the

Commission did not cite to a single

indication that one or more non-utility

QFs under common ownership and

control have achieved or could achieve

market power. It argues that

Commission’s assertion is mere

speculation.

7. ARIPPA argues that the exception

for QFs selling pursuant to a state

avoided-cost regime is inconsistent with

other parts of the existing rule. It argues

that it is vague and that the uncertainty

it will create will stymie future

development, despite Congress’

continuing charge to the Commission to

continue to encourage development. It

contends that it is unclear how much

variance from a state avoided-cost

regime is tolerable and how much

crosses the line and would cause the QF

to lose its exemption from Federal rate

regulation. It questions whether

investors will be willing to initiate

development knowing that the process

may be affected by such uncertainties. It

also questions whether it is in the

public interest for the Commission to set

up what is sees as barriers and

disincentives to settlement of disputes

arising during contract negotiations

between utilities and QFs.

8. NRECA, on the other side, argues

that all power sales by QFs owned by

Commission-regulated public utilities

should be subject to sections 205 and

206 even if the sales were made

pursuant to a state’s implementation of

PURPA.9 It states that Order No. 671

continues to exempt from sections 205

and 206 any sales made pursuant to a

state PURPA implementation plan, even

8 Id. at 6 (citing Order No. 671 at P 96).

9 NRECA Request for Rehearing at 5.

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Federal Register / Vol. 71, No. 103 / Tuesday, May 30, 2006 / Rules and Regulations

if the QF is owned by a public utility.10

It argues that there is no policy reason

why such wholesale sales of power from

QFs owned by public utilities should be

exempt from Commission review under

sections 205 and 206, while all other

wholesale sales by such public utilities

(i.e., from resources other than QFs) are

subject to such review.

9. NRECA argues that all sales by QFs

owned by public utilities should be

subject to the Commission’s rate

authority, whether such sales are

pursuant to an avoided cost rate or not.

NRECA also states that the filing of

avoided cost contracts with the

Commission will enhance oversight and

transparency, while not requiring filing

creates a risk of market power abuse.

10. NRECA further argues that all QFs

that make non-PURPA sales should be

subject to sections 205 and 206, no

matter how small. It states that it is

sensitive to the needs of smaller QFs,

but that a QF as small as 5 MW could

have a substantial impact upon a small

distribution cooperative. NRECA states

that small QFs that believe they are too

small to handle public utility regulation

may continue to make sales pursuant to

a state PURPA implementation plan,

and continue to be exempt from section

205 and 206 (unless they are owned by

a public utility). NRECA adds that, on

the other hand, if small QFs want the

flexibility available to utilities with

market-based rates and feel that they are

large enough and sophisticated enough

to sell at market-based rates, they

should be subject to sections 205 and

206, like any other public utility that

sells power at market-based rates.

11. NRECA argues that, under Order

No. 671, if a large public utility owned

a 20 MW QF, it could make power sales

from that QF without any Commission

review. It further argues that, if the

facility were not a QF, the public utility

would not be able to make such a sale

without the Commission’s express

approval. It argues that this underscores

the potential for market power abuse

and affiliate transaction abuse that

could occur if Order No. 671 is not

changed.

12. The Non-Utility QF Group argues

that the Commission should increase

the threshold for exemption from

sections 205 and 206 of the FPA from

20 MW to 30 MW. First, it argues that

the change would simplify Commission

regulation by maintaining a consistent

30 MW threshold for all FPA

exemptions as they apply to qualifying

small power production facilities.

Second, it argues that, in PURPA,

Congress determined that 30 MW was a

10 Id. (citing Order No. 671 at P 99).

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14:16 May 26, 2006

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critical threshold for small power

production facilities, and notes that

Congress did not disturb that threshold

in EPAct 2005. Thus, it argues, the

Commission already has a ready

statutory reference for a 30 MW

threshold, while the 20 MW threshold is

more arbitrary. Third, it argues that the

total installed generation capacity for all

qualifying cogeneration plants under 30

MW, combined with the total installed

generation capacity of all qualifying

small power production facilities under

30 MW, totals a mere 7,095.5 MW.11 It

argues that this represents less than 0.7

percent of the total installed generation

capacity in the U.S. in 2004. It argues

that, accordingly, exemptions for QFs

less than 30 MW would not detract from

the purposes of sections 205 and 206 of

the FPA, and would serve both

administrative efficiency and

Congressional mandates to avoid utilitytype regulation of entities having de

minimis market presence.

Commission Determination

13. We disagree that any original

‘‘bargain’’ has been reneged on, or that

the Commission has engaged in what

ARIPPA refers to as a ‘‘bait and switch.’’

The Commission granted very broad

exemptions from the FPA (and state

laws) in order to remove the

disincentive of utility-type regulation

from QFs. Exemptions from FPA

sections 205 and 206 rate regulation

were necessary to encourage the

development of QFs. However, at that

time the Commission had no way to

predict how markets would develop in

the decades to follow. When the

Commission first granted the

exemptions from sections 205 and 206

of the FPA in 1980, there was no market

for electric energy produced by nontraditional generators and thus such

generators were rare. However,

prompted originally by PURPA, markets

for electric energy produced by nontraditional generators have developed.

Now that these markets are in existence

and provide a forum for sales of electric

energy produced by non-traditional

generators, the same level of

encouragement for QFs is no longer

necessary; access to these markets

provides encouragement. Accordingly,

it is no longer necessary to completely

exempt QFs from sections 205 and 206

of the FPA in order to encourage

development of QFs.

14. Moreover, given these changes to

energy markets, there will be times

when Commission oversight of QF sales

11 Non-Utility QF Group Request for Rehearing at

4–5 (citing U.S. Department of Energy Annual

Electric Generator Report (2004)).

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30587

is appropriate and necessary under

section 205 and 206 of the FPA. The

passage and implementation of EPAct

2005 has provided us an opportunity to

now provide for such oversight.

15. We remain unpersuaded that

eliminating exemptions will upset the

legitimate expectations of QF owners,

lenders and investors. As we stated in

Order No. 671, the exemptions

previously granted were always subject

to revision and QFs had no justifiable

expectations that, no matter the changes

in circumstances, changes in the

regulatory regime would not occur. In

addition, the Commission has already

taken significant steps to ease any

adverse impact. Specifically, the

Commission recognized that

expectations reflected in current

contracts should be protected, and did

so by grandfathering the exemption

from sections 205 and 206 of the FPA

for existing contracts.12 However, on a

prospective basis, the need for oversight

of QF sales is a compelling reason to

subject new contracts to rate regulation

under section 205 and 206 of the FPA.

16. ARIPPA’s argument that Order No.

671’s changes to the exemptions from

sections 205 and 206 of the FPA will

discourage future development of nontraditional generation is misplaced. The

large number of non-QF independent

generators that have developed in recent

years, addressed in the many orders

granting them market-based rate

authority under section 205 of the FPA,

indicate that the exemptions from

sections 205 and 206 are not necessary

to promote non-traditional generation.

17. We find unpersuasive the

arguments made by NRECA that even

sales made by utility-owned QFs that

are subject to a state’s PURPA

implementation plan should

nevertheless be subject to section 205

and 206 regulation. Our goal in part was

and is to close the gap that had

developed in the regulatory regime that

allowed some QF sales to avoid any rate

regulation.13 We believe that having QF

sales regulated at the state level is

sufficient, and will allow us to close the

regulatory gap while not dramatically or

inappropriately increasing the

regulatory burden on QFs.

18. Likewise, we find unpersuasive

the arguments of the Non-Utility QF

Group and NRECA to change the

threshold for section 205/206

exemptions. The Non-Utility QF Group

argues that the threshold should be

increased to 30 MW; NRECA argues that

all non-PURPA sales should be

regulated no matter how small the QF.

12 Order No. 671 at P 97.

13 Id. at P 95–96.

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In Order No. 671, we attempted to strike

a balance by ensuring that QF sales are

regulated by either the states or the

Commission while at the same time

easing the burden on the smallest

facilities.14 In the NOPR, the

Commission originally suggested that

the exemptions should remain in effect

for QFs under 5 MW. Most commenters

supported the exemption for QFs under

5 MW, while some suggested a higher

figure.15 In response to those comments,

the Commission raised the threshold to

20 MW.16 The 20 MW threshold strikes

a reasonable balance by protecting the

smallest facilities while ensuring that

sales by larger QFs are subject to

Commission oversight.17 The arguments

presented by the Non-Utility QF Group

are simply not compelling enough to

persuade us to raise the threshold

further. In addition, we reject arguments

by NRECA to make all non-PURPA sales

subject to rate regulation, no matter how

small the QF. We believe that an

exemption from regulation is still

appropriate to ease the regulatory

burden for the smallest QFs.

Self-Certification

Background

19. In Opinion No. 671, the

Commission retained the option to selfcertify for new cogeneration facilities.

The Commission also stated that selfcertifications and self-recertifications of

new cogeneration facilities would now

be noticed in the Federal Register, in

order to enhance the visibility of selfcertifications for interested parties. The

Commission further stated that a facility

should not be able to claim QF status

without having made any filing with the

Commission. Accordingly, the

Commission amended its regulations to

expressly require that a facility claiming

QF status must file either a notice of

self-certification or an application for

Commission certification.18

Requests for Rehearing

20. NRECA argues that the

Commission should not permit new

cogeneration facilities to self-certify. It

states that the ‘‘fundamental use’’ and

‘‘presumptively useful’’ standards are

14 Id. at P 98.

15 Id. at P 87.

16 Id. at P 98.

rmajette on PROD1PC67 with RULES1

17 The 20 MW threshold adopted in Order No.

671 is also consistent with the 20 MW size limit for

small generating facilities found in Order No. 2006.

Standardization of Small Generator Interconnection

Agreements and Procedures, Order No. 2006, 70 FR

34100 (June 13, 2005), FERC Stats. & Regs. ¶ 31,180

at P 75 (2005), order on reh’g, Order No. 2006–A,

70 FR 71760 (November 30, 2005), FERC Stats. &

Regs. ¶ 31,196 (2005).

18 Id. at P 78–83.

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subjective and that there are no

guidelines established yet on how the

standard will be applied. It contends

that, although the Commission has

stated that these factors will require a

case-by-case review, self-certification

will be meaningless if the Commission

accepts a new cogeneration facility’s

unsupported representation in a selfcertification that it satisfies subjective

standards. It argues that, consequently,

new cogeneration facilities should at the

present time be required to submit an

application and obtain a Commission

determination as to its QF status.19

21. NRECA further argues that the

Commission’s proposal in Order No.

671 to notice self-certifications and selfrecertifications in the Federal Register

is insufficient to ensure that new

cogeneration facilities satisfy the new

standards for QF status, given the

inherently subjective and case-by-case

nature of the application of such new

standards. It contends that, because QFs

frequently file self-certifications before

they have approached an electric utility

for interconnection or power sales,

electric utilities would be compelled to

monitor every self-certification filing in

order to determine whether the QF is

planning to locate in the electric

utility’s service territory. It further

argues that, until the new standards are

better developed, it will be unclear on

what basis an electric utility could

challenge a QF’s qualifying status. It

contends that only electric utilities with

significant litigation resources will be in

position to protect themselves from

inappropriate self-certifications, and

that small cooperatives will be at a

disadvantage.

Commission Determination

22. We deny rehearing. We find the

processes and safeguards included in

Order No. 671 to be sufficient. As we

noted in Order No. 671, the Commission

has the authority to review a selfcertification.20 With this authority, the

Commission is able to review the selfcertifications of new cogeneration

facilities to ensure their compliance

with the new standards. NRECA argues

that, for the first self-certifications, there

will be no prior cases that provide

guidelines on how to satisfy the

standards. We think EPAct 2005’s

statutory language and the newlyadopted regulations provide a sufficient

starting point, and we also expect such

case law to develop quickly so that QFs

and electric utilities will have further

19 NRECA Request for Rehearing at 8.

20 Order No. 671 at P 78.

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guidance on what is necessary to meet

the new standards.

23. In addition, we disagree with

NRECA’s argument that publication of

notice in the Federal Register will not

help to ensure that prospective QFs

comply with the new standards.

Publication of such notices will enhance

the visibility of self-certifications and

self-recertifications for interested

parties. We expect that such visibility

will allow attempted self-certifications

and self-recertifications of new

cogeneration facilities that fail to meet

the new standards set forth in Order No.

671 to be spotted quickly, and so help

to ensure that such facilities satisfy the

new standards in Order No. 671.

PUHCA Clarification

Background

24. In Order No. 671, the Commission

stated that it interprets PURPA to permit

it to exempt QFs from the Public Utility

Holding Company Act of 2005 (PUHCA

2005) 21 in 18 CFR 292.602. The

Commission stated that, accordingly,

revised 18 CFR 292.602 would now

provide that a QF shall not be

considered an ‘‘electric utility

company’’ as defined by PUHCA 2005.

We also stated in Order No. 671 that,

consistent with recent actions on FPA

section 203,22 QFs would be considered

‘‘electric utility companies’’ for

purposes of section 203(a)(2) of the

FPA.23

Requests for Rehearing

25. The Non-Utility QF Group argues

that there is a tension between Order

No. 671 and Order No. 669 24 in how the

two orders relate to transactions

involving entities that only own QFs

and exempt wholesale generators

(EWGs) for purposes of section 203(a)(2)

of the FPA. It states that, in Order No.

669, the Commission explained that,

regardless of their status under PUHCA

2005, QFs (and EWGs) will be regarded

as ‘‘electric utility companies’’ for

purposes of section 203(a)(2), which

addresses the acquisition of securities

by ‘‘holding companies’’ as defined in

PUHCA 2005.25 It notes that the

Commission also stated that, while most

QFs themselves remain exempt from

section 203, holding companies will

21 Public Law No. 109–58, 1261–77, 119 Stat. 594,

972–78 (2005).

22 16 U.S.C. 824b.

23 Order No. 671 at P 102.

24 Transactions Subject to FPA Section 203, Order

No. 669, 70 FR 58636 (October 7, 2005), FERC Stats.

& Regs. ¶ 31,200 (2005), order on reh’g, Order No.

669–A, 71 FR 28,422 (May 16, 2006), FERC Stats.

& Regs. ¶ 31,214 (2006).

25 See Non-Utility QF Group Request for

Rehearing at 5.

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Federal Register / Vol. 71, No. 103 / Tuesday, May 30, 2006 / Rules and Regulations

require Commission approval pursuant

to section 203 in order to acquire an

interest in a QF or an EWG.26 Finally,

it notes that the Commission in Order

No. 669 stated that this would hold true

even if the holding company were a

holding company solely by reason of its

ownership interest in QFs, EWGs and

foreign utility companies (FUCOs).

26. The Non-Utility QF Group states

that, while it understands why the

Commission would want some review

of acquisitions of large QFs by holding

companies having real generation or

transmission market power, it disagrees

with the Commission’s suggestion in

Order No. 669 that holding companies

otherwise exempted by Congress from

PUHCA 2005, i.e., owners only of QFs,

EWGs and FUCOs, should be subject to

section 203 requirements. It argues that

this assertion represents a potential

dramatic increase in regulatory

oversight over independent companies

that own precisely the types of smaller,

non-traditional generating plants that

Congress has long sought to encourage.

It argues that it is ‘‘silly’’ to require

every 500 KW landfill gas or

hydroelectric plant to be subject to

section 203 just because it is being

acquired by the owner of another small

QF.

27. The Non-Utility QF Group argues

that a better balance is provided by

Order No. 671. It argues that, by

exempting QFs from PUHCA 2005’s

definition of ‘‘electric utility company,’’

a QF would not be an ‘‘electric utility

company’’ under PUHCA 2005, and

therefore its upstream 10 percent

owners would not be ‘‘holding

companies’’ under PUHCA 2005—and

therefore would not be ‘‘holding

companies’’ for purposes of section

203(a)(2) of the FPA.27

QFs will not be excluded from the

definition of ‘‘electric utility company’’

but added that the Commission intends

nevertheless to exempt QFs from

PUHCA 2005 and most FPA

requirements pursuant to the

Commission’s PURPA authority to grant

such exemptions.29 Accordingly, we

will on rehearing here revise 18 CFR

292.602 to remove the statement that a

QF is not an ‘‘electric utility company’’

within the meaning of PUHCA 2005,

and to provide an exemption from

PUHCA 2005. As to FPA section 203,

the definition of ‘‘electric utility

company’’ in that context was addressed

in Order No. 669–A.30

The Commission orders:

Rehearing is hereby denied and

clarification is hereby granted in part, as

discussed in the body of this order.

Commission Determination

28. The Non-Utility QF Group is

correct that there was an inconsistency

in the treatment of QFs with regards to

their status under PUHCA 2005.

However, the Commission has corrected

this inconsistency in its order on

rehearing of Order No. 667,28 the final

rule which amended the Commission’s

regulations to implement the repeal of

PUHCA 1935 and the enactment of

PUHCA 2005. In that order on

rehearing, the Commission clarified that

revised to read as follows.

26 Id. (citing Order No. 669 at P 59–60 and 70).

rmajette on PROD1PC67 with RULES1

27 Id. at 6 (citing Order No. 671 at P 92–94).

28 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 75,592 (December 20, 2005), FERC Stats. & Regs.

¶ 31,197 (2005), order on reh’g, Order No. 667–A,

71 FR 28,446 (May 16, 2006), FERC Stats. & Regs.

¶ 31,213 (2006).

VerDate Aug<31>2005

14:16 May 26, 2006

Jkt 208001

List of Subjects in 18 CFR Part 292

Electric Power Plants, Electric

utilities, Natural gas, Reporting and

recordkeeping requirements.

By the Commission.

Magalie R. Salas,

Secretary.

■ In consideration of the foregoing,

under the authority of EPAct 2005, the

Commission is amending part 292 in

Chapter I of Title 18 of the Code of

Federal Regulations, as set forth below:

PART 292—[AMENDED]

■ 1. The authority citation for part 292

continues to read as follows:

Authority: 16 U.S.C. 791a–825r, 2601–

2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352.

■ 2. In § 292.602, paragraph (b) is

§ 292.602 Exemption of qualifying facilities

from the Public Utility Holding Company

Act of 2005 and certain State law and

regulation.

*

*

*

*

*

(b) Exemption from the Public Utility

Holding Company Act of 2005. A

qualifying facility described in

paragraph (a) of this section or a utility

geothermal small power production

facility shall be exempt from the Public

Utility Holding Company Act of 2005,

42 U.S.C. 16,451–63.

*

*

*

*

*

[FR Doc. E6–8204 Filed 5–26–06; 8:45 am]

BILLING CODE 6717–01–P

29 See Order No. 667 at P 14 n. 31.

30 Order No. 669–A at P 41–54.

PO 00000

Frm 00029

Fmt 4700

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30589

DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 5422]

RIN 1400–AC06

Visas: Documentation of

Nonimmigrants Under the Immigration

and Nationality Act, as Amended

AGENCY: State Department.

ACTION: Final rule.

SUMMARY: This rule amends the

Department of State’s regulations to

require the presentation of Mexican

Federal passports as a necessary

condition for Mexican citizens applying

for combined Border Crossing Cards

(BCC) and B–1/B–2 visas (laser visas). It

also removes the conditions under

which certain beneficiaries of

Immigration and Nationality Act

212(d)(3)(A) waivers of ineligibility

could receive laser visas.

DATES: Effective Date: This rule is

effective on May 30, 2006.

FOR FURTHER INFORMATION CONTACT:

Charles E. Robertson, Legislation and

Regulations Division, Visa Services,

Department of State, Washington, DC

20520–0106. Phone: 202–663–3969. Email: robertsonce3@state.gov.

SUPPLEMENTARY INFORMATION:

What Is a Laser Visa?

The biometric border-crossing card

(BCC/B–1/B–2 NIV) is a laminated,

credit card-style document with many

security features. It has a ten-year

validity period. The card is commonly

called a ‘‘laser visa.’’ Most Mexican

visitors to the U.S., whether traveling to

the border region or beyond, receive a

laser visa.

Who Has Authority Over the Issuance

of Laser Visas?

The Department of State and the

Bureau of Citizenship and Immigration

Services (BCIS) in the Department of

Homeland Security jointly administer

the laser visa program. The Department

of State issues the BCC/B–1⁄2 as it

possesses exclusive authority over visa

issuance.

How Was This Authority Derived?

In 1996, Congress established new

procedures for issuing a more secure

border-crossing document (Section 104

of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996

(IIRIRA) Pub. L. 104–208, 110 Stat.

3546). The law required every border

crossing identification card issued after

April 1, 1998 to contain a biometric

identifier such as a fingerprint, and be

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