Since the issuance of Order No. 697-A, FERC has required market based rate sellers to include a comprehensive description of all upstream owners. In its latest notice of proposed rulemaking, FERC recognizes that the level of upstream ownership related detail currently required is not essential to a determination of the seller’s market power. FERC also points out the difficulty that many sellers face in accurately capturing and describing all upstream owners given the often numerous and types of ownership interests (e.g., full versus partial, passive versus controlling, direct versus indirect, etc.). As a result, FERC is proposing to revise its regulations to require that sellers report only two categories of upstream owners. The first requirement is that a seller identify the ultimate affiliate owner (i.e., the highest in the chain). The second requirement is that a seller identify and describe all affiliate owners with a franchised service area or market based rate authority, or that directly own or control generation, transmission, interstate gas transportation facilities, storage or distribution facilities, physical coal supply sources or owners of such sources.

The new reporting requirements apply to both the triennial update filing requirements as well as the change in status reporting requirements. Thus a change in a market based rate seller’s ultimate affiliate owner will trigger a change in status reporting obligation, in addition to the reporting obligations identified in connection with the triennial update. FERC is hopeful that the proposed regulations will ease the reporting burden and lessen the amount of amended market based rate filings.