In recent weeks, the Federal Energy Regulatory Commission ("FERC") Staff with the Office of Energy Market Regulation has issued letters to numerous public utilities informing them that their Form 566, List of Twenty Largest Retail Purchasers, had not been received, and that "failure to properly and timely file FERC-566, required regulatory information, may result in Commission enforcement action as outlined in the Commission's Policy Statement on Enforcement . . . ." Even public utilities that had no retail sales to report were issued such letters. This is a new development since FERC Staff has not previously enforced the requirement on utilities that do not make retail sales.

The statutory obligation to file Form 566 with FERC applies to all public utilities, and FERC Staff appears to be signaling its intent to enforce the requirement going forward. Section 305(c) of the Federal Power Act ("FPA"), implemented through Section 46.3 of FERC's regulations, provides that "[o]n or before January 31 of each calendar year, each public utility shall publish a list" of "any company, firm, or organization which during any one of the 3 calendar years immediately preceding the filing date was one of the 20 purchasers of electric energy which purchased (for purposes other than for resale) one of the 20 largest annual amounts of electric energy sold by such public utility (or by any public utility which is part of the same holding company system) during any one of such three calendar years." Moreover, qualifying facilities are specifically not exempt from Section 305(c) of the FPA under the Commission's regulations.

Given FERC Staff's interest in ensuring compliance with the Form 566 filing requirement by all public utilities, it is advisable that all public utilities, including qualifying facilities and those that do not make retail sales, review and if necessary correct their compliance with the Form 566 obligation.