

[Federal Register: November 10, 2005 (Volume 70, Number 217)]
[Notices]               
[Page 68481-68484]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10no05-160]                         

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 35-28057]

 
Filings Under the Public Utility Holding Company Act of 1935, as 
Amended (``Act'')

November 4, 2005.
    Notice is hereby given that the following filing(s) has/have been 
made with the Commission pursuant to provisions of the Act and rules 
promulgated under the Act. All interested persons are referred to the 
application(s) and/or declaration(s) for complete statements of the 
proposed transaction(s) summarized below. The application(s) and/or 
declaration(s) and any amendment(s) is/are available for public 
inspection through the Commission's Branch of Public Reference.
    Interested persons wishing to comment or request a hearing on the 
application(s) and/or declaration(s) should submit their views in 
writing by November 29, 2005, to the Secretary, Securities and Exchange 
Commission, 100 F Street, NE., Washington, DC 20549-9303, and serve a 
copy on the relevant applicant(s) and/or declarant(s) at the 
address(es) specified below. Proof of service (by affidavit or, in the 
case of an attorney at law, by certificate) should be filed with the 
request. Any request for hearing should identify specifically the 
issues of facts or law that are disputed. A person who so requests will 
be notified of any hearing, if ordered, and will receive a copy of any 
notice or order issued in the matter. After November 29, 2005, the 
application(s) and/or declaration(s), as filed or as amended, may be 
granted and/or permitted to become effective.

Ameren Corp., et al. (70-8945)

    Ameren Corporation (``Ameren''), a registered holding company, 1901 
Chouteau Avenue, St. Louis, Missouri 63103, CIPSCO Investment Company 
(``CIPSCO Investment''), a wholly owned subsidiary of Ameren, and 
CIPSCO Investment's wholly owned subsidiary, CIPSCO Leasing Company 
(``CIPSCO Leasing''), both of 607 East Adams Street, Springfield, 
Illinois 62739, and AmernEnergy Resources Generating Company 
(``AERG''), a wholly owned indirect electric utility company subsidiary 
of Ameren, 300 Liberty Street, Peoria, Illinois 61602, have filed an 
application-declaration under Sections 6(a), 7, 9(a),10, 11(b)(1), 
12(b) and 12(f) of the Act and Rules 45 and 54 under the Act 
(``Application'').
    Applicants seek a divestiture order for tax purposes that would 
require the divestiture of CIPSCO Leasing's wholly-owned subsidiary, 
CLC Aircraft Leasing Company (``CLC'') or of CLC's 100% interest in an 
MD-88 commercial passenger aircraft that is leased to Delta Air Lines, 
Inc. (``Delta'').

I. Background

A.The Ameren System
    Ameren directly owns all of the issued and outstanding common stock 
of Union Electric Company, doing business as ``AmerenUE,'' Central 
Illinois Public Service Company, doing business as ``AmerenCIPS,'' and 
Illinois Power Company doing business as ``AmerenIP,'' and indirectly 
through CILCORP Inc., an exempt holding company, owns all of the issued 
and outstanding common stock of Central Illinois Light Company, doing 
business as ``AmerenCILCO.''
    Together, AmerenUE, AmerenCIPS, AmerenIP and AmerenCILCO provide 
retail and wholesale electric service to approximately 2.3 million 
customers and retail natural gas service to approximately 935,000 
customers in parts of Missouri and Illinois. In addition, AmerenCILCO 
holds all of the outstanding common stock of AERG. AERG is a non-exempt 
electric utility generating subsidiary to which AmerenCILCO transferred 
substantially all of its generating assets in October 2003.

[[Page 68482]]

    Ameren also directly owns all of the issued and outstanding common 
stock of CIPSCO Investment, a non-utility subsidiary that in turn owns 
all of the issued and outstanding common stock of, among other 
subsidiaries, CIPSCO Leasing. CIPSCO Leasing, directly or through 
subsidiaries, invests in certain long-term leveraged lease 
transactions. As relevant to this Post-Effective Amendment, CIPSCO 
Leasing's wholly-owned subsidiary, CLC, holds a 100% interest as the 
owner participant in an MD-88 commercial passenger aircraft that is 
leased to Delta (the ``Aircraft Lease Interest'').
B. Relevant History
    By order dated December 30, 1997, in this proceeding (Holding Co. 
Act Release No. 26809) (the ``Merger Order''), the Commission 
authorized Ameren to acquire all of the issued and outstanding common 
stock of AmerenUE and CIPSCO Incorporated, which was then the parent 
company of AmerenCIPS, to organize a service company subsidiary, and to 
issue and sell common stock pursuant to certain stock plans. In 
addition, the Commission authorized Ameren to retain the direct and 
indirect non-utility subsidiaries and investments of AmerenUE and 
CIPSCO Incorporated, subject to certain exceptions. Specifically as it 
relates to the instant Application, the Commission determined that the 
Aircraft Lease Interest was retainable under Section 9(c)(3) of the 
Act.
    Although the Aircraft Lease Interest is a ``passive'' investment, 
CIPSCO Leasing has already captured the tax benefits (in the form of 
accelerated depreciation) associated with the leased equipment. Thus, 
the economic characteristics associated with this investment are no 
longer the same as they were at the time of the Merger Order. Ameren 
has concluded, therefore, that the Aircraft Lease Interest is not 
retainable under the standards of either Section 11(b)(1) of the Act or 
under Commission precedents interpreting Section 9(c)(3) of the Act.
    Accordingly, Ameren requests that the Commission issue a 
supplemental order in this proceeding to: (i) Require Ameren to sell or 
otherwise dispose of the Aircraft Lease Interest or of the equity 
securities of CLC Aircraft not later than February 8, 2006; (ii) recite 
that such sale or disposition of the Aircraft Lease Interest or of the 
equity securities of CLC Aircraft is necessary or appropriate to the 
integration or simplification of the Ameren holding company system and 
to effectuate the provisions of Section 11(b)(1); (iii) require that 
the net proceeds from such sale or disposition be utilized within 24 
months of the receipt thereof to retire or cancel securities 
representing indebtedness of the transferor or otherwise expended for 
property other than ``nonexempt property'' within the meaning of 
section 1083 of the Internal Revenue Code, as amended (the ``Code'') or 
invested as a contribution to the capital, or as paid-in surplus, of 
another direct or indirect subsidiary of Ameren in a manner that 
satisfies the nonrecognition provisions of Code section 1081; and (iv) 
recite that such expenditure or investment by the transferor is 
necessary or appropriate to the integration or simplification of the 
Ameren holding company system.
C. Summary of Relevant Provisions of the Code
    Ameren explains that Code section 1081(b)(1) provides for the 
nonrecognition of gain or loss from a sale or exchange of property made 
in obedience to a Commission order. Code section 1082(a)(2) requires 
that any unrecognized gain under Code section 1081(b)(1) be applied to 
reduce the basis of the transferor's remaining assets in a specified 
manner.
    Ameren submits that an exception from this nonrecognition treatment 
exists under Code section 1081(b)(2), which specifies that if property 
received in connection with any sale or disposition is ``nonexempt 
property,'' then such ``nonexempt property'' or an amount equal to the 
fair market value of such ``nonexempt property'' must, within 24 months 
of the time of the transfer, in accordance with an order of the 
Commission, be expended for property other than ``nonexempt property'' 
or invested as a contribution to the capital, or as paid-in surplus, of 
another corporation, and the Commission's order recites that such 
expenditure or investment by the transferor corporation is necessary or 
appropriate to the integration or simplification of the holding company 
system of which the transferor corporation is a member. Code section 
1081(b)(3) provides that an appropriate expenditure for property other 
than ``nonexempt property'' for purposes of Code section 1081(b)(2) 
includes each of (1) a payment in complete or partial retirement or 
cancellation of securities representing indebtedness of the transferor 
and (2) the amount of any liability of the transferor that is assumed 
(or to which transferred property is subject) in connection with any 
transfer of property in obedience to a Commission order.
    Ameren further submits that Code section 1081(d) provides for the 
nonrecognition of gain or loss from certain intercompany transactions 
within the same system group if such transactions are made in obedience 
to a Commission order.
D. Sale of the Lease Interests
    CIPSCO Leasing intends to seek a buyer or buyers for the Aircraft 
Lease Interest or of the equity securities of CLC Aircraft in a 
privately negotiated transaction. Alternatively, as a result of the 
bankruptcy of Delta,\1\ CLC Aircraft, as owner participant under the 
lease, may, in the bankruptcy proceeding, forfeit its beneficial 
interest (as owner participant) in the leased aircraft if the indenture 
trustee, on behalf of the debt participants in the leveraged lease 
transaction, exercises its remedy to take title to the aircraft.\2\ 
Such transfer of the beneficial interest in the leased aircraft to the 
indenture trustee would be treated as a ``sale'' for federal income tax 
purposes for an amount equal to the outstanding balance of the 
leveraged lease debt. In either event, Ameren expects that such 
transfer will result in a significant amount of gain for federal income 
tax purposes. Accordingly, CIPSCO Leasing will structure any such 
transfer in a manner that will enable it to utilize the non-recognition 
provisions of Code section 1081.
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    \1\ On September 14, 2005, Delta and its subsidiaries filed 
voluntary petitions for reorganization under Chapter 11 of the U.S. 
Bankruptcy Code. The matter is pending before the U.S. Bankruptcy 
Court for the Southern District of New York.
    \2\ Any such transfer would be qualified by and subject to any 
restriction or limitations on transfer set forth in the operative 
lease documents, the Bankruptcy Code, and other applicable law, 
including the Revised Interim Order Pursuant to Sections 105(a) and 
362 of the Bankruptcy Code Establishing Notification Procedures and 
Approving Restriction on Certain Transfers of Claims against and 
Interests in the Debtors' Estates entered in the Delta bankruptcy 
case on September 16, 2005.
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    In order to achieve this result, the Applicants will engage in a 
series of essentially simultaneous intercompany transactions the 
purpose of which is to structure the sale of the Aircraft Lease 
Interest or of the equity securities of CLC Aircraft to occur from a 
subsidiary of Ameren (in this case AERG) that has sufficient tax basis 
in similar classes of property to absorb the basis reductions required 
by Code section 1082(b).
    More specifically, CIPSCO Leasing intends to engage in the 
following transactions (the ``Proposed Transactions''):

    1. On or prior to the closing date with respect to the sale of 
the Aircraft Lease Interest or of the equity securities of CLC 
Aircraft (the ``Closing Date''), CIPSCO

[[Page 68483]]

Leasing will transfer the stock of CLC Aircraft to AERG in exchange 
for a promissory note in the form of Exhibit B-7 (the ``AERG Note'') 
and/or cash (together, the AERG Note and the cash are referred to 
herein as the ``AERG Consideration'').
    2. On or prior to the Closing Date, Ameren will cause CLC 
Aircraft to convert into a Delaware limited liability company.\3\
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    \3\ By order dated December 18, 2003 (Holding Co. Act Release 
No. 27777) (the ``December 2003 Order''), the Commission authorized 
Ameren and its non-utility subsidiaries to, among other things, 
convert the capital structure of non-utility subsidiaries from one 
business form to another.
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    3. On the Closing Date, AERG will either sell the Aircraft Lease 
Interest or the membership interests of CLC Aircraft to a buyer or 
buyers in exchange for consideration (which is expected to be 
nominal) or transfer the Aircraft Lease Interest and/or the 
membership interests of CLC Aircraft to the indenture trustee for 
the benefit of the debt participants in the existing leveraged lease 
structure, which, for federal income tax purposes, will be treated 
as a deemed sale of the Aircraft Lease Interest.
    4. Within 24 months after such Closing Date, AERG will expend 
the consideration received from the buyer or buyers to reduce the 
AERG Note (if any) or will otherwise expend or invest such cash in 
accordance with Code section 1081(b).

    As indicated, the Proposed Transactions are intended to allow 
Ameren to match the unrecognized gain from the sale of the Aircraft 
Lease Interest or of the membership interests of CLC Aircraft under 
Code section 1081(b) to AERG since AERG is one of the subsidiaries of 
Ameren that has a sufficiently high tax basis in other similar classes 
of property such that the unrecognized gain can be fully absorbed by 
the basis reductions required by Code section 1082(a)(2).

II. Requests for Authority

    Ameren requests that the Commission authorize (a) AERG to acquire 
the stock of CLC Aircraft from CIPSCO Leasing and (b) AERG to issue and 
CIPSCO Leasing to acquire the AERG Note, in each case prior to February 
8, 2006. The aggregate amount of the AERG Consideration (i.e., AERG 
Note and/or cash) will be fixed on or before the Closing Date to be 
equal to or less than the amount of consideration (which may be 
nominal) agreed to be paid by the buyer or buyers of the Aircraft Lease 
Interest or of the membership interests of CLC Aircraft, such that the 
proceeds of the sale will be at least sufficient to enable AERG to 
retire the AERG Note (if any) on or shortly after the Closing Date; 
and, in any event will not exceed $10 million. The AERG Note (if any) 
will bear interest at a daily floating rate per annum (computed on the 
basis of a 360-day year consisting of twelve 30 day months) equal to 
the ``1-Month Nonfinancial Commercial Paper'' rate published by the 
Federal Reserve in its H.15 Selected Interest Rates publication.
    In addition, in accordance with Code section 1081(f), Ameren 
requests that the Commission's supplemental order in this proceeding 
confirm that (1) The proposed disposition of the Aircraft Lease 
Interest or of the membership interests of CLC Aircraft through the 
Proposed Transactions will be a disposition for cash or cash 
equivalents in compliance with the supplemental order, (2) the 
application of the net proceeds to retire all or part of the AERG Note 
will be a complete or partial retirement of securities representing 
indebtedness of AERG, (3) the amount of liabilities assumed and the 
amount of liabilities to which transferred property is subject upon the 
disposition of the Aircraft Lease Interest or membership interests of 
CLC Aircraft through the Proposed Transactions will be an expenditure 
for property other than ``nonexempt property'' in compliance with the 
supplemental order, and (4) accordingly, each of the Proposed 
Transactions is necessary or appropriate to the integration or 
simplification of the Ameren holding company system and will effectuate 
the provisions of Section 11(b)(1) of the Act.

FirstEnergy Corp., et al. (70-10122)

    FirstEnergy Corp. (``FirstEnergy''), a registered holding company, 
and the following subsidiaries of FirstEnergy (together with 
FirstEnergy, ``Applicants''), Ohio Edison Company, a wholly-owned 
public-utility company subsidiary of FirstEnergy, its nonutility 
company subsidiaries, The Cleveland Electric Illuminating Company, a 
wholly-owned public-utility company subsidiary of FirstEnergy, its 
nonutility subsidiary companies, The Toledo Edison Company, a wholly-
owned public-utility company subsidiary of FirstEnergy, its nonutility 
subsidiary companies, Pennsylvania Power Company (``Penn Power''), a 
wholly-owned public-utility company subsidiary of FirstEnergy, American 
Transmission Systems, Incorporated (``ATSI''), a wholly-owned public-
utility company subsidiary of FirstEnergy, Jersey Central Power & Light 
Company (``JCP&L''), a wholly-owned public-utility company subsidiary 
of FirstEnergy, its nonutility subsidiary companies, Pennsylvania 
Electric Company (``Penelec''), a wholly-owned public-utility company 
subsidiary of FirstEnergy, its nonutility subsidiary companies, 
Metropolitan Edison Company (``Met-Ed''), a wholly-owned public-utility 
company subsidiary of FirstEnergy, its nonutility subsidiary companies, 
York Haven Power Company, a wholly-owned public-utility company 
subsidiary of FirstEnergy, The Waverly Electric Power & Light Company, 
a wholly-owned public-utility company subsidiary of FirstEnergy, FE 
Acquisition Corp., a wholly-owned nonutility subsidiary of FirstEnergy, 
its nonutility subsidiary companies, FirstEnergy Properties, Inc., a 
wholly-owned nonutility subsidiary of FirstEnergy, its nonutility 
subsidiary companies, FirstEnergy Facilities Services Group, LLC, a 
wholly-owned nonutility subsidiary of FirstEnergy, its nonutility 
subsidiary companies, FELHC, Inc., a wholly-owned nonutility subsidiary 
of FirstEnergy, FirstEnergy Securities Transfer Company, a wholly-owned 
nonutility subsidiary of FirstEnergy, FirstEnergy Nuclear Operating 
Company, a wholly-owned nonutility subsidiary of FirstEnergy, 
FirstEnergy Solutions Corp., a wholly-owned nonutility subsidiary of 
FirstEnergy, its nonutility subsidiary companies, FirstEnergy Ventures 
Corp., a wholly-owned nonutility subsidiary of FirstEnergy, its 
nonutility subsidiary companies, Marbel Energy Corporation, a wholly-
owned nonutility subsidiary of FirstEnergy, its nonutility subsidiary 
companies, FirstEnergy Service Company (``Service Company''), a wholly-
owned service company subsidiary of FirstEnergy, GPU Capital, Inc., a 
wholly-owned nonutility subsidiary of FirstEnergy, its nonutility 
subsidiary companies, GPU Electric, Inc., a wholly-owned nonutility 
subsidiary of FirstEnergy, its nonutility subsidiary companies, GPU 
Diversified Holdings, LLC, a wholly-owned nonutility subsidiary of 
FirstEnergy, its nonutility subsidiary companies, GPU Power, Inc., a 
wholly-owned nonutility subsidiary of FirstEnergy, its nonutility 
subsidiary companies, FirstEnergy Telecom Services, Inc., a wholly-
owned nonutility subsidiary of FirstEnergy, its nonutility subsidiary 
companies, GPU Nuclear, Inc., a wholly-owned nonutility subsidiary of 
FirstEnergy, MYR Group, Inc. (``MYR''), a wholly-owned nonutility 
subsidiary of FirstEnergy, and its nonutility subsidiary companies, all 
76 South Main Street, Akron, Ohio 44308, have filed a post-effective 
amendment (``Post-Effective Amendment'') to a previously filed 
application-declaration under sections 6(a), 7, 9(a), 10, 12 and 13(b) 
of the Act and rules 42, 43, 45, 46, 53, 54, 87(b), and 90-92 under the 
Act.
    By order dated June 30, 2003 (HCAR No. 27694, as modified ``Current

[[Page 68484]]

Financing Order''),\4\ the Commission authorized FirstEnergy Corp., an 
Ohio corporation (``FirstEnergy'') and its subsidiaries to engage in a 
program of external financing, intrasystem financing, and other related 
transactions for the period through and including December 31, 2005 
(``Prior Authorization Period''). FirstEnergy and its subsidiaries 
request by this Post-Effective Amendment a further order extending 
through February 8, 2006 (``New Authorization Period'') \5\: (1) Their 
existing financing authority under the Current Financing Order; and (2) 
the Commission's reservations of jurisdiction over various matters, 
described below.
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    \4\ The Commission modified HCAR No. 27694 by order dated 
November 25, 2003 (HCAR No. 27769).
    \5\ February 8, 2006 is the effective date of repeal of the Act.
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    Generally, by the Current Financing Order, the Commission 
authorized Applicants to engage in the following transactions during 
the Authorization Period:

    (1) FirstEnergy may issue and sell directly or indirectly 
through one or more special purpose financing entities (``Financing 
Subsidiaries''): (a) Common stock and/or options, warrants, equity-
linked securities or stock purchase contracts convertible into or 
exercisable for common stock, (b) preferred stock and other forms of 
preferred securities (including trust preferred securities), (c) new 
long-term debt securities having maturities of one year or more up 
to 50 years, and (d) commercial paper, promissory notes and other 
forms of short-term indebtedness having maturities of less than one 
year (``Short-term Debt'') in an aggregate amount not to exceed $4.5 
billion, excluding securities issued for purposes of refunding or 
replacing other outstanding securities where FirstEnergy's 
capitalization is not increased as a result thereof, provided that 
the aggregate amount of Short-term Debt at any time outstanding 
shall not exceed $1.5 billion;
    (2) FirstEnergy may enter into and perform interest rate hedging 
transactions (``Hedge Instruments'') and with respect to anticipated 
debt offerings (``Anticipatory Hedges'') to manage volatility of 
interest rates associated with its and its subsidiaries' outstanding 
indebtedness and anticipated debt offerings;
    (3) FirstEnergy may issue and/or purchase on the open market for 
purposes of reissuance up to 30 million shares of common stock and/
or stock options or other stock-based awards exercisable for common 
stock pursuant to its dividend reinvestment and stock-based 
management incentive and employee benefits plans (``Stock Plans'') 
maintained by FirstEnergy for the benefit of shareholders, officers, 
directors and employees;
    (4) FirstEnergy may issue one purchase right together with each 
new share of common stock issued in accordance with the authority 
requested; (5) JCP&L, Penn Power, Met-Ed, Penelec and ATSI may issue 
and sell Short-term Debt in aggregate principal amounts at any time 
outstanding not to exceed: (a) in the case of JCP&L and Penn Power, 
the limitation on short-term indebtedness contained in their 
respective charters ($414 million and $49 million, respectively, as 
of June 30, 2005), (b) $250 million in the cases of Penelec and Met-
Ed, and (c) $500 million in the case of ATSI;
    (5) FirstEnergy may guarantee and provide other forms of credit 
support (``FirstEnergy Guarantees'') on behalf of its subsidiaries 
in an aggregate amount which, taking into account any guarantees 
provided by FirstEnergy's nonutility subsidiaries (``Nonutility 
Subsidiaries''), will not exceed $4.0 billion outstanding at any 
time;
    (6) FirstEnergy may maintain and continue funding a money pool 
(``Utility Money Pool'') for its public-utility company subsidiaries 
(``Utility Subsidiaries'') and a separate money pool (``Nonutility 
Money Pool'') for the benefit of the Nonutility Subsidiaries 
(together, ``Money Pools'') and, to the extent not exempt under rule 
52, FirstEnergy's subsidiaries may borrow and extend credit to each 
other through the Money Pools by issuing and acquiring demand notes 
evidencing those borrowings and extensions of credit; \6\
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    \6\ The Nonutility Subsidiaries and Utility Subsidiaries are 
referred to collectively as ``Subsidiaries.''
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    (7) Applicants are authorized to make loans Nonutility 
Subsidiaries that are less than wholly-owned (directly or 
indirectly) by FirstEnergy at interest rates and maturities designed 
to provide a return to the lending company of not less than its 
effective cost of capital;
    (8) FirstEnergy and the Subsidiaries may enter into a tax 
allocation agreement with respect to tax year 2002 and later years 
that does not conform in all respects to the requirements of rule 
45(c);
    (9) FirstEnergy and the Subsidiaries may change the 
capitalization of any Subsidiary 50% or more of whose stock is held 
by FirstEnergy or any other intermediate parent company;
    (10) Nonutility Subsidiaries may declare and pay dividends out 
of capital or unearned surplus, subject to certain restrictions;
    (11) FirstEnergy may acquire interests in certain companies 
(``Energy Related Companies'') that would qualify as ``energy-
related companies,'' as defined in rule 58, but for the fact that a 
substantial portion of their revenues are derived from activities 
outside the United States,\7\ subject to certain reservations of 
jurisdiction described below;
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    \7\ More specifically, Energy Related Companies may engage in 
energy management and consulting activities anywhere outside the 
United States and energy marketing and related activities in Canada 
and Mexico. Under the Current Financing Order, investments in Energy 
Related Companies count toward FirstEnergy's limit under rule 58 on 
investments in ``energy-related companies.''
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    (12) FirstEnergy may invest, directly or through Nonutility 
Subsidiaries, up to $300 million at any time on preliminary 
development activities relating to potential new investments in 
nonutility businesses;
    (13) FirstEnergy may consolidate the direct and indirect 
ownership interests in certain existing nonutility businesses and 
former subsidiaries of GPU, Inc. (``GPU'') under one or more 
existing or future nonutility holding companies; and
    (14) to the extent not exempt under rule 90(d), Nonutility 
Subsidiaries may provide services and sell goods to certain 
specified types of Nonutility Subsidiaries at market prices 
determined without regard to cost.

    The authorized securities are subject to numerous terms, 
conditions, and limitations, including: Limitations on interest rate, 
maturity, issuance expenses, and use of proceeds; commitments by 
FirstEnergy and each of the Utility Subsidiaries to maintain common 
equity equal to at least 30% of consolidated capitalization; and 
certain investment grade rating criteria as applicable to securities 
(other than common stock of FirstEnergy and Money Pool borrowings) to 
be issued pursuant to the authority granted under the Current Financing 
Order and to other outstanding securities of the issuer and of 
FirstEnergy.
    By the Current Financing Order, the Commission reserved 
jurisdiction, pending completion of the record, over: (1) Issuances of 
securities in those circumstances where FirstEnergy or a Utility 
Subsidiary does not comply with the 30% common equity criteria 
(described above); (2) issuances of securities where one or more of 
investment grade ratings criteria are not met; (3) entering into Hedge 
Instruments and Anticipatory Hedges by FirstEnergy that do not qualify 
for hedge accounting treatment by the Financial Accounting Standards 
Board; (4) issuances by FirstEnergy of guarantees on behalf of its 
Subsidiaries for the benefit of non-affiliated third parties; (5) the 
ability of FirstEnergy to make certain additional investments in 
``exempt wholesale generators'' and ``foreign utility companies,'' as 
those terms are defined by sections 32 and 33 of the Act, respectively, 
in an amount over $1.5 billion; (6) the ability of Energy Related 
Companies to engage in energy marketing outside of the United States, 
Canada and Mexico; and (7) the ability of Energy Related Companies to 
engage in the sale of infrastructure services anywhere outside the 
United States.\8\

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Jonathan G. Katz,
Secretary.
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    \8\ In a separate, pending post-effective amendment, FirstEnergy 
is requesting that the Commission release jurisdiction over the sale 
of infrastructure services by MYR and other Energy Related Companies 
in Canada.
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[FR Doc. 05-22453 Filed 11-9-05; 8:45 am]

BILLING CODE 8010-01-P
