2001 US Code
Title 15 - COMMERCE AND TRADE
CHAPTER 2C - PUBLIC UTILITY HOLDING COMPANIES
Sec. 79z-5b - Treatment of foreign utilities

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§79z–5b. Treatment of foreign utilities (a) Exemptions for foreign utility companies (1) In general

A foreign utility company shall be exempt from all of the provisions of this chapter, except as otherwise provided under this section, and shall not, for any purpose under this chapter, be deemed to be a public utility company under section 79b(a)(5) of this title, notwithstanding that the foreign utility company may be a subsidiary company, an affiliate, or an associate company of a holding company or of a public utility company.

(2) State commission certification

Section 1 (a)(1) shall not apply or be effective unless every State commission having jurisdiction over the retail electric or gas rates of a public utility company that is an associate company or an affiliate of a company otherwise exempted under section 1 (a)(1) (other than a public utility company that is an associate company or an affiliate of a registered holding company) has certified to the Commission that it has the authority and resources to protect ratepayers subject to its jurisdiction and that it intends to exercise its authority. Such certification, upon the filing of a notice by such State commission, may be revised or withdrawn by the State commission prospectively as to any future acquisition. The requirement of State certification shall be deemed satisfied if the relevant State commission had, prior to October 24, 1992, on the basis of prescribed conditions of general applicability, determined that ratepayers of a public utility company are adequately insulated from the effects of diversification and the diversification would not impair the ability of the State commission to regulate effectively the operations of such company.

(3) “Foreign utility company” defined

For purposes of this section, the term “foreign utility company” means any company that—

(A) owns or operates facilities that are not located in any State and that are used for the generation, transmission, or distribution of electric energy for sale or the distribution at retail of natural or manufactured gas for heat, light, or power, if such company—

(i) derives no part of its income, directly or indirectly, from the generation, transmission, or distribution of electric energy for sale or the distribution at retail of natural or manufactured gas for heat, light, or power, within the United States; and

(ii) neither the company nor any of its subsidiary companies is a public utility company operating in the United States; and

(B) provides notice to the Commission, in such form as the Commission may prescribe, that such company is a foreign utility company.

(b) Ownership of foreign utility companies by exempt holding companies

Notwithstanding any provision of this chapter except as provided under this section, a holding company that is exempt under section 79c of this title shall be permitted without condition or limitation under the 2 chapter to acquire and maintain an interest in the business of one or more foreign utility companies.

(c) Registered holding companies (1) Ownership of foreign utility companies by registered holding companies

Notwithstanding any provision of this chapter except as otherwise provided under this section, a registered holding company shall be permitted as of October 24, 1992 (without the need to apply for, or receive approval from the Commission) to acquire and hold the securities or an interest in the business, of one or more foreign utility companies. The Commission shall promulgate rules or regulations regarding registered holding companies’ acquisition of interests in foreign utility companies which shall provide for the protection of the customers of a public utility company which is an associate company of a foreign utility company and the maintenance of the financial integrity of the registered holding company system.

(2) Issuance of securities

The issuance of securities by a registered holding company for purposes of financing the acquisition of a foreign utility company, the guarantee of securities of a foreign utility company by a registered holding company, the entering into service, sales, or construction contracts, and the creation or maintenance of any other relationship between a foreign utility company and a registered holding company, its affiliates and associate companies, shall remain subject to the jurisdiction of the Commission under this chapter (unless otherwise exempted under this chapter, in the case of a transaction with an affiliate or associate company located outside of the United States). Any State commission with jurisdiction over the retail rates of a public utility company which is part of a registered holding company system may make such recommendations to the Commission regarding the registered holding company's relationship to a foreign utility company, and the Commission shall reasonably and fully consider such State recommendation.

(3) Construction

Any interest in the business of 1 or more foreign utility companies, or 1 or more companies organized exclusively to own, directly or indirectly, the securities or other interest in a foreign utility company, shall for all purposes of this chapter, be considered to be—

(A) consistent with the operation of a single integrated public utility system, within the meaning of section 79k of this title; and

(B) reasonably incidental, or economically necessary or appropriate, to the operations of an integrated public utility system, within the meaning of section 79k of this title.

(d) Effect on existing law; no State preemption

Nothing in this section shall—

(1) preclude any person from qualifying for or maintaining any exemption otherwise provided for under this chapter or the rules, regulations, or orders promulgated or issued under this chapter; or

(2) be deemed or construed to limit the authority of any State (including any State regulatory authority) with respect to—

(A) any public utility company or holding company subject to such State's jurisdiction; or

(B) any transaction between any foreign utility company (or any affiliate or associate company thereof) and any public utility company or holding company subject to such State's jurisdiction.

(e) Reporting requirements (1) Filing of reports

A public utility company that is an associate company of a foreign utility company shall file with the Commission such reports (with respect to such foreign utility company) as the Commission may by rules, regulations, or order prescribe as necessary or appropriate in the public interest or for the protection of investors or consumers.

(2) Notice of acquisitions

Not later than 30 days after the consummation of the acquisition of an interest in a foreign utility company by an associate company of a public utility company that is subject to the jurisdiction of a State commission with respect to its retail electric or gas rates or by such public utility company, such associate company or such public utility company, shall provide notice of such acquisition to every State commission having jurisdiction over the retail electric or gas rates of such public utility company, in such form as may be prescribed by the State commission.

(f) Prohibition on assumption of liabilities (1) In general

No public utility company that is subject to the jurisdiction of a State commission with respect to its retail electric or gas rates shall issue any security for the purpose of financing the acquisition, or for the purposes of financing the ownership or operation, of a foreign utility company, nor shall any such public utility company assume any obligation or liability as guarantor, endorser, surety, or otherwise in respect of any security of a foreign utility company.

(2) Exception for holding companies which are predominantly public utility companies

Subsection (f)(1) of this section shall not apply if:

(A) the public utility company that is subject to the jurisdiction of a State commission with respect to its retail electric or gas rates is a holding company and is not an affiliate under section 79b(a)(11)(B) of this title of another holding company or is not subject to regulation as a holding company and has no affiliate as defined in section 79b(a)(11)(A) of this title that is a public utility company subject to the jurisdiction of a State commission with respect to its retail electric or gas rates; and

(B) each State commission having jurisdiction with respect to the retail electric and gas rates of such public utility company expressly permits such public utility to engage in a transaction otherwise prohibited under section 3 (f)(1); and

(C) the transaction (aggregated with all other then-outstanding transactions exempted under this subsection) does not exceed 5 per centum of the then-outstanding total capitalization of the public utility.

(g) Prohibition on pledging or encumbering utility assets

No public utility company that is subject to the jurisdiction of a State commission with respect to its retail electric or gas rates shall pledge or encumber any utility assets or utility assets of any subsidiary thereof for the benefit of an associate foreign utility company.

(Aug. 26, 1935, ch. 687, title I, §33, as added Pub. L. 102–486, title VII, §715, Oct. 24, 1992, 106 Stat. 2912.)

References in Text

This chapter and the chapter, referred to in subsecs. (a)(1), (b), (c), and (d)(1), was in the original “this Act” and “the Act”, respectively, and was translated as reading “this title”, meaning title I of act Aug. 26, 1935, ch. 687, known as the Public Utility Holding Company Act of 1935, to reflect the probable intent of Congress.

Prior Provisions

A prior section 33 of act Aug. 26, 1935, ch. 687, was renumbered section 36 and is classified to section 79 of this title.

State Authorities; Construction

Nothing in this section to be construed as affecting or intending to affect, or in any way to interfere with, authority of any State or local government relating to environmental protection or siting of facilities, see section 731 of Pub. L. 102–486, set out as a note under section 79 of this title.

1 So in original. Probably should be “subsection”.

2 So in original. Probably should be “this”.

3 So in original. Probably should be “subsection”.