| (F) A calculation, based on the holding company’s
most recent SEC Form 10-Q, of aggregate consolidated holding company
investments as defined in subsection (c)(2)(G) of this section as
a percentage of consolidated holding company net worth, stated both
before and after all asset transfers from any affiliate of the electric
utility to FUCOs at fair market value;
(G) A statement that the holding company will provide
to the commission all SEC forms for reporting information related
to foreign EWG and FUCO investments, no later than ten days after
such forms are provided to the SEC; and
(H) Responses to questions, if any, contained on a
commission prescribed form.
(2) The notification prescribed in this subsection
may be submitted less than 30 days before the date when the holding
company anticipates making a final commitment to ownership of a FUCO
not already covered by a certification letter upon a showing of good
cause. Good cause for purposes of the preceding sentence must be deemed
to include, without limitation, a representation that the holding
company lacked the information required to make a submission at an
earlier date or a representation that making the submission at an
earlier date would have unreasonably jeopardized the ability of the
holding company to go forward with the contemplated investment.
(3) In its review of the information provided pursuant
to this section, the commission will consider, among other things,
the number and magnitude of prior FUCO investments by the holding
company, including the diversity among the countries in which such
investments are located and other differences between such investments,
and the magnitude of the proposed investment and its effect on the
diversity of the portfolio.
(e) Post-investment reporting. The electric utility
must comply with the following post-investment reporting obligations:
(1) With respect to any investment in a FUCO for which
an informational filing was made pursuant to subsection (d)(1) of
this section, the electric utility or holding company must notify
the commission no later than ten days after the holding company makes
a final commitment to ownership of a FUCO that such a commitment has
been made. Such notice must include any material corrections, additions,
and supplementation of previously-provided information; and
(2) For any FUCO investment covered by a certification,
the electric utility or holding company must notify the commission
no later than 30 days after any material change in the circumstances
or nature of an investment in a FUCO. Such notice must include all
appropriate corrections, additions, and supplementation of previously-provided
information. A material change would include, but is not limited to,
any change that would have an adverse impact of greater than 1.0%
of consolidated net worth most recently reported; full or partial
divestiture of the investment; a catastrophic event that destroys
a significant amount of FUCO property or results in loss of life that
could result in a significant liability claim; a change in the laws
or government policy having a material impact on the FUCO; or an event
which would place a significant restriction on the repatriation of
earnings of the FUCO.
(3) Unless included in SEC reports, each exempt utility
holding company which directly or indirectly holds an interest in
FUCOs or foreign EWGs must provide the following information: A consolidating
statement of income of the exempt holding company and its subsidiary
companies for the last calendar year, together with a consolidating
balance sheet of the exempt holding company and its subsidiary companies
as of the close of such calendar year.
(A) The information must be provided in English, monetary
amounts in U.S. dollars, and according to generally accepted accounting
principles.
(B) Such information must be received by the commission
annually no later than March 15.
(f) Commission standards for granting or maintaining
certification.
(1) In general, the commission will issue and continue
certification when the aggregate investment in FUCOs and foreign EWGs
is less than 30% of the holding company’s consolidated net worth,
and the company has satisfactorily provided the information and assurances
set out in the preceding subsections.
(2) With respect to any investment in a FUCO for which
an informational filing was made pursuant to subsection (d)(1) of
this section, the commission must determine on a case-by-case basis
whether to issue a certification to the SEC or maintain a previously
issued certification. The commission must endeavor to make such a
determination prior to the date when the holding company anticipates
having to make a final commitment to ownership of the FUCO. If the
commission determines that it does not intend to continue certification,
it may inform the SEC that maintaining a previously-issued certification
would be inappropriate.
(3) The commission must notify the holding company
requesting the certification or retention of certification of its
decision within 45 days of receiving the request. If no action is
taken by the commission within 45 days of receiving the request, the
certification is deemed granted or affirmed.
(4) Any information submitted by a holding company
pursuant to this section may be submitted by the holding company under
seal. Each page tendered under seal must have the words "Confidential
Information" typed or stamped on its face. The holding company must
clearly identify each portion of the application alleged to be Confidential
Information; identify the exemption to the Public Information Act,
Texas Government Code Annotated, Chapter 552 (Vernon Supp. 1998),
applicable to the alleged Confidential Information; and provide a
detailed explanation of why the alleged Confidential Information is
exempt from public disclosure under the Public Information Act. If
the commission receives a Public Information Act request for disclosure
of Confidential Information, then the Executive Director must promptly
so notify the holding company. The Executive Director must timely
request an Attorney General’s opinion as to whether the information
falls within any of the exemptions identified in Subchapter C of the
Public Information Act. The Executive Director must promptly provide
to the holding company a copy of an Attorney General opinion regarding
the claim of confidentiality. If an Attorney General opinion recommends
disclosure of Confidential Information, either in whole or in part,
then the Executive Director must not release such information for
ten calendar days, in order to allow the holding company time to pursue
any legal remedies that it may have. The holding company may require
the execution of an appropriate confidentiality agreement prior to
providing access to such confidential information to commission staff
or any other interested party. The form of any such confidentiality
agreement must be approved by commission staff legal counsel prior
to filing and included with the informational filing.
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