Enron Corporation (“Enron”), a public utility holding company, Stephen Forbes Cooper, LLC (“SFC”), an entity headed by the Acting President of Enron, and PGE Trust, an entity that Enron may organize (collectively “Applicants”), all located at 1400 Smith Street, Houston, Texas 77002, have filed an application (“Application”) with the Securities and Exchange Commission seeking exemption from all provisions of the Public Utility Holding Company Act of 1935 (“Act”) except section 9(a)(2). Enron represents that it is a public utility holding company by reason of its ownership of all of the outstanding voting securities of Portland General Electric Company (“Portland General”). Enron requests exemption Start Printed Page 2638under Section 3(a)(4) of the Act. Section 3(a)(4) provides that the Commission shall exempt, “unless and except insofar as it finds the exemption detrimental to the public interest or the interest of investors or consumers,” a holding company if:
such holding company is temporarily a holding company solely by reason of the acquisition of securities for purposes of liquidation or distribution in connection with a bona fide debt previously contracted or in connection with a bona fide arrangement for the underwriting or distribution of securities * * *
Section 3(c) of the Act provides that:
Within a reasonable time after the receipt of an application for exemption under subsection (a) or (b), the Commission shall enter an order granting, or, after notice and opportunity for hearing, denying or otherwise disposing of such application * * *
We cannot, from the face of the Application, conclude that Enron meets the statutory criteria for an exemption pursuant to section 3(a)(4) of the Act. Therefore, we have determined, in accordance with sections 3(c) and 19 of the Act, to conduct a hearing on Enron's Application. Because ownership and control of Portland General has not yet been transferred to the other applicants, there is no basis for taking action on the applications of SFC and PGE Trust. We therefore do not consider these two requests.
The hearing will be conducted on the basis of written submissions to be filed on or before February 2, 2004. We currently believe, given the issues raised in the Application, that a hearing on the basis of written submissions will be sufficient. However, if any person believes that oral testimony or oral argument is necessary, he may request that the Commission consider ordering such testimony or oral argument. Such a request should be filed by February 2, 2004, and should specify why the person making the request believes such testimony or argument is necessary and what the person making the request expects to accomplish thorough such testimony or argument.
Accordingly, it is hereby ordered that a hearing shall be conducted, pursuant to Sections 3(c) and 19 of the Act (and in accordance with the Commission's Rules of Practice except as otherwise provided), on February 2, 2004. Enron and the Division of Investment Management shall file with the Secretary of the Commission, on or before February 2, 2004, a written submission that identifies specifically the issues of fact or law in dispute including legal arguments supporting their position, and shall serve simultaneously a copy of such submission on the other participant. A person who files a written submission will receive a copy of any other notice or order issued in this matter; and
It is further ordered that Enron and the Division of Investment Management shall be parties to the proceeding and that Enron, as the proponent of the exemptive order it seeks, shall, pursuant to 5 U.S.C. 556(d), bear the burden of proving that it is entitled to such exemptive order; and
It is further ordered that any person who seeks to intervene as a party pursuant to Rule of Practice 210(b)  shall file a motion to intervene with the Secretary of the Commission no later than February 2, 2004, and any person who seeks to participate on a limited basis pursuant to Rule of Practice 210(c)  shall file a motion for leave to participate with the Secretary of the Commission no later than February 2, 2004. Any person who seeks to intervene as a party or to participate on a limited basis also shall file with the Secretary of the Commission no later than February 2, 2004, a written submission that identifies specifically the issues of fact or law in dispute including any legal arguments supporting that person's position and identifies the person's interest in the Application, and shall serve all participants with a copy of any document the person files with the Commission; and
It is further ordered that the Secretary of the Commission shall mail copies of this Notice and Order by certified mail to Enron at the address noted above and shall serve a copy on the Division of Investment Management; that notice to all other persons shall be given by publication of this Notice and Order in the Federal Register; and this Notice and Order and any subsequent orders granting or denying or otherwise disposing of the Application shall be posted on the Commission's Web site at www.sec.gov and published in the SEC Docket.Start Signature
By the Commission.
Margaret H. McFarland,
1. We take no position as to whether the Application with respect to any of the Applicants was filed in good faith as required under Section 3(c) in order to exempt the applicant from any obligation, duty, or liability imposed by the Act upon the applicant until the Commission has acted on such application.Back to Citation
2. Although the Applicants did not request a hearing, they have reserved their right to do so.Back to Citation
3. No briefs in addition to those specified in this Notice and Order may be filed without leave of the Commission. Attention is called to Rules 150-153, with respect to form and service. Briefs shall not exceed 50 pages, exclusive of pages containing the table of contents, table of authorities, and any addendum, except with leave of the Commission. Requests for extensions of time to file briefs are disfavored.Back to Citation
[FR Doc. 04-1102 Filed 1-14-04; 12:20 pm]
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