Industries Exempt Wholesale Generators (EWG)
The Public Utility Holding Company Act of 2005 (PUHCA 2005) states that the term “exempt wholesale generator” will have the same meaning as that term had in section 32 of the Public Utility Holding Company Act of 1935 (PUHCA 1935). Section 32(a)(1) of PUHCA 1935 defined an exempt wholesale generator as “any person determined by the Federal Energy Regulatory Commission to be engaged directly, or indirectly through one or more affiliates . . . , and exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale.”
Under PUHCA 1935, an “affiliate” for these purposes means any company in which the person claiming EWG status owns a five percent or greater voting interest. PUHCA 2005 retains the relevant portions of the definition of an affiliate found in PUHCA 1935. It is important to note that under this definition, affiliation exists solely within a single ownership chain. In other words, sister companies are not affiliates under this definition.
The definition of an EWG set forth above has been incorporated, with slight modification, into the Commission’s regulations at 18 CFR § 366.1. That section defines an EWG as “any person engaged directly, or indirectly through one or more affiliates as defined in this subchapter, and exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale.”
The definition of an EWG found in section 366.1 of the Commission’s regulations also specifies that “[f]or purposes of establishing or determining whether an entity qualifies for exempt wholesale generator status, sections 32(a)(2) through (4), and sections 32(b) through (d) of [PUHCA 1935] . . . shall apply.” Knowledge of these provisions is important because they control a significant portion of the representations that must be included in an EWG self-certification and to some extent what should not be included. Click on the link below for information on these provisions of PUHCA 1935.