Standard of Review for Modifications to Jurisdictional Agreements, 79420-79421 [E8-30622]
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Federal Register / Vol. 73, No. 249 / Monday, December 29, 2008 / Proposed Rules
The report will state that it has been
determined that the rule is not a ‘‘major
rule’’ as defined by 5 U.S.C. 804(2).
VII. Approval of the Office of the
Secretary
The Secretary of Energy has approved
publication of today’s notice of
proposed rulemaking.
List of Subjects in 10 CFR Part 440
Administrative practice and
procedure, Energy conservation, Grant
programs—energy, Grant programs—
housing and community development,
Housing standards, Indians, Individuals
with disabilities, Reporting and record
keeping requirements, Weatherization.
Issued in Washington, DC, on December
11, 2008.
David E. Rodgers,
Deputy Assistant Secretary for Energy
Efficiency, Office of Technology
Development, Energy Efficiency and
Renewable Energy.
For the reasons set forth in the
preamble, DOE proposes to amend part
440 of chapter II of title 10, Code of
Federal regulations to read as follows:
PART 440—WEATHERIZATION
ASSISTANCE PROGRAM FOR LOWINCOME PERSONS
1. The authority citation for Part 440
continues to read as follows:
Authority: 42 U.S.C. 6861 et seq.; 42 U.S.C.
7101 et. seq.
2. Section 440.3 is amended by
revising the definition of ‘‘State’’ to read
as follows:
§ 440.3
Definitions.
*
*
*
*
*
State means each of the States, the
District of Columbia, American Samoa,
Guam, Commonwealth of the Northern
Mariana Islands, Commonwealth of
Puerto Rico, and the Virgin Islands.
*
*
*
*
*
3. Section 440.10 is amended by
revising introductory paragraph (b),
(b)(1) Table 1, and paragraph (c), to read
as follows:
§ 440.10
dwashington3 on PROD1PC60 with PROPOSALS
*
*
*
*
*
(b) Based on the total program
allocations at or above the amount of
$209,724,761, DOE shall determine the
program allocation for each State from
available funds as follows:
(1) * * *
Base allocation
($)
Alabama ..........................
Alaska .............................
VerDate Aug<31>2005
13:01 Dec 24, 2008
Arizona ............................
Arkansas .........................
California .........................
Colorado .........................
Connecticut .....................
Delaware .........................
District of Columbia ........
Florida .............................
Georgia ...........................
Hawaii .............................
Idaho ...............................
Illinois ..............................
Indiana ............................
Iowa ................................
Kansas ............................
Kentucky .........................
Louisiana ........................
Maine ..............................
Maryland .........................
Massachusetts ................
Michigan .........................
Minnesota .......................
Mississippi ......................
Missouri ..........................
Montana ..........................
Nebraska ........................
Nevada ...........................
New Hampshire ..............
New Jersey .....................
New Mexico ....................
New York ........................
North Carolina ................
North Dakota ..................
Ohio ................................
Oklahoma .......................
Oregon ............................
Pennsylvania ..................
Rhode Island ..................
South Carolina ................
South Dakota ..................
Tennessee ......................
Texas ..............................
Utah ................................
Vermont ..........................
Virginia ............................
Washington .....................
West Virginia ..................
Wisconsin .......................
Wyoming .........................
American Samoa ............
Guam ..............................
Puerto Rico .....................
Northern Mariana Islands
Virgin Islands ..................
760,000
1,417,000
4,404,000
4,574,000
1,887,000
409,000
487,000
761,000
1,844,000
120,000
1,618,000
10,717,000
5,156,000
4,032,000
1,925,000
3,615,000
912,000
2,493,000
1,963,000
5,111,000
12,346,000
8,342,000
1,094,000
4,615,000
2,123,000
2,013,000
586,000
1,193,000
3,775,000
1,519,000
15,302,000
2,853,000
2,105,000
10,665,000
1,846,000
2,320,000
11,457,000
878,000
1,130,000
1,561,000
3,218,000
2,999,000
1,692,000
1,014,000
2,970,000
3,775,000
2,573,000
7,061,000
967,000
120,000
120,000
120,000
120,000
120,000
Total .........................
171,858,000
*
Allocation of funds.
State
Base allocation
($)
State
1,636,000
1,425,000
Jkt 217001
*
*
*
*
(c) Should total program allocations
for any fiscal year fall below
$209,724,761, then each State’s program
allocation shall be reduced from its
allocated amount under a total program
allocation of $209,724,761 by the same
percentage as total program allocations
for the fiscal year fall below $209,724,
761.
*
*
*
*
*
[FR Doc. E8–30836 Filed 12–24–08; 8:45 am]
BILLING CODE 6450–01–P
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DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 35
[Docket No. RM05–35–000]
Standard of Review for Modifications
to Jurisdictional Agreements
Issued December 18, 2008.
AGENCY: Federal Energy Regulatory
Commission.
ACTION: Withdrawal of notice of
proposed rulemaking and termination of
rulemaking proceeding.
SUMMARY: The Commission withdraws a
notice of proposed rulemaking, which
proposed that, in the absence of specific
contractual language enabling
Commission review of proposed
contractual modifications not agreed to
by the signatories (or their successors)
under a ‘‘just and reasonable’’ standard,
the Commission would review such
modifications under a ‘‘public interest’’
standard.
DATES: Effective Date: This withdrawal
published at 71 FR 303, January 4, 2006,
will become effective January 28, 2009.
FOR FURTHER INFORMATION CONTACT:
Hadas Kozlowski (Legal Information),
Office of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426,
(202) 502–8030.
SUPPLEMENTARY INFORMATION:
125 FERC ¶ 61,310.
United States of America, Federal Energy
Regulatory Commission.
Before Commissioners: Joseph T. Kelliher,
Chairman; Suedeen G. Kelly, Marc Spitzer,
Philip D. Moeller, and Jon Wellinghoff.
Standard of Review for Modifications to
Jurisdictional Agreements; Withdrawal of
Notice of Proposed Rulemaking and
Termination of Rulemaking Proceeding.
Docket No. RM05–35–000
(Issued December 18, 2008.)
1. On December 27, 2005, the
Commission issued a Notice of
Proposed Rulemaking (NOPR) in this
proceeding.1 For the reasons set forth
below, we are exercising our discretion
to withdraw the NOPR and terminate
this rulemaking proceeding.
I. Background
2. In the NOPR, the Commission
proposed to repeal its regulation at 18
CFR 35.1(d) and, in its place,
1 Standard of Review for Modifications to
Jurisdictional Agreements, Notice of Proposed
Rulemaking, 71 FR 303 (Jan. 4, 2006), FERC Stats.
& Regs. ¶ 32,596 (2005) (NOPR).
E:\FR\FM\29DEP1.SGM
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Federal Register / Vol. 73, No. 249 / Monday, December 29, 2008 / Proposed Rules
promulgate a general rule regarding the
standard of review that must be met to
justify proposed modifications to
Commission-jurisdictional agreements
under the Federal Power Act (FPA) and
Natural Gas Act (NGA) that are not
agreed to by the signatories (or their
successors). The Commission noted that
courts were divided as to whether, in
the face of contractual silence, the
Commission was required to apply the
‘‘public interest’’ standard of review or
the ‘‘just and reasonable’’ standard of
review to proposed modifications.2 The
NOPR thus focused on the standard of
review applicable to proposed changes
in contracts in the absence of
contractual language specifying the
standard of review preferred by the
parties. The NOPR did not address other
issues such as the showing needed to
satisfy the ‘‘Mobile-Sierra
presumption.’’ 3
3. The Commission, in the NOPR,
proposed a regulation which provided
that, in the absence of prescribed
contractual language enabling the
Commission to review proposed
modifications to agreements that are not
agreed to by the signatories (or their
successors) under a ‘‘just and
reasonable’’ standard of review, the
Commission will review such proposed
modifications under a ‘‘public interest’’
standard of review. The Commission
concluded that the weight of court
precedent supported application of the
‘‘public interest’’ standard when
evaluating proposed changes to such
contracts, unless the contract language
expressly invokes the ‘‘just and
reasonable’’ standard. The Commission
stated that this standard would promote
contract certainty. Additionally, the
Commission recognized the importance
of providing certainty and stability in
competitive electric energy markets.
dwashington3 on PROD1PC60 with PROPOSALS
II. Discussion
4. There is no longer a need for a
rulemaking regarding the default
standard of review, as the Supreme
Court has addressed the law in this area.
Since issuance of the NOPR, the United
States Supreme Court has addressed the
Mobile-Sierra doctrine in Morgan
Stanley. The Court held that the MobileSierra doctrine is a presumption that
2 NOPR, FERC Stats. & Regs. ¶ 32,596 at P 8
(citing Boston Edison Co. v. FERC, 233 F.3d 60 (1st
Cir. 2000)). The Boston Edison court stated that
these issues would remain in a state of confusion
until the Commission ‘‘squarely confronted the
underlying issues.’’ Boston Edison, 233 F.3d at 68.
3 Morgan Stanley Capital Group, Inc. v. Public
Utility District No. 1 of Snohomish County, 128 S.
Ct. 2733, 2739 (2008) (Morgan Stanley) (referring to
United Gas Pipe Line Co. v. Mobile Gas Serv. Corp.,
350 U.S. 332 (1956); FPC v. Sierra Pacific Power
Co., 350 U.S. 348 (1956) (Mobile-Sierra)).
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13:01 Dec 24, 2008
Jkt 217001
79421
rates initially set in a freely negotiated
contract meet the statutory just and
reasonable requirement of the FPA.4
The Court explained that ‘‘parties could
contract out of the Mobile-Sierra
presumption by specifying in their
contracts that a new rate filed with the
Commission would supersede the
contract rate,’’ but otherwise ‘‘the
Mobile-Sierra presumption remains the
default rule.’’ 5
5. Because the Supreme Court in
Morgan Stanley has since addressed the
default standard, the Commission
concludes that it is no longer necessary
to adopt the regulation proposed in the
NOPR. The Commission therefore
withdraws the NOPR and terminates
this rulemaking proceeding.
The Commission orders:
The Notice of Proposed Rulemaking is
hereby withdrawn and Docket No.
RM05–35–000 is hereby terminated.
Appeals for the District of Columbia
Circuit’s recent decision in Maine
Public Utilities Commission v. FERC.7
Because the Commission is bound by
the rulings in Morgan Stanley and
Maine PUC, we conclude that there is
no longer a need for a rulemaking
regarding the default standard of review.
For this reason, we concur with this
order.
Suedeen G. Kelly,
Commissioner.
Jon Wellinghoff,
Commissioner.
By the Commission. Commissioners Kelly
and Wellinghoff concurring with a separate
joint statement attached.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[REG–150066–08]
United States of America, Federal Energy
Regulatory Commission.
Standard of Review for Modifications to
Jurisdictional Agreements
Docket No. RM05–35–000
(Issued December 18, 2008.)
Kelly and Wellinghoff,
Commissioners, concurring:
This order terminates the rulemaking
proceeding on the standard of review for
modifications to jurisdictional
agreements, withdrawing the Notice of
Proposed Rulemaking (NOPR) that the
Commission issued in 2005. This order
states that, since the issuance of the
NOPR, the United States Supreme Court
addressed the Mobile-Sierra doctrine,
including the default standard of
review, in Morgan Stanley.6 As a result,
the majority finds that there is no longer
a need for a rulemaking regarding the
default standard of review.
We agree that the rulemaking
proceeding on the standard of review for
modifications to jurisdictional
agreements should be terminated.
However, we believe that in reaching
that conclusion, it is appropriate to
recognize not only the Morgan Stanley
decision, but also the U.S. Court of
4 Id.
at 2737; accord id. at 2746.
at 2739; cf. Public Util. Dist. No. 1 v. FERC,
471 F.3d 1053, 1075 (9th Cir. 2006),aff’d and
remanded sub nom., Morgan Stanley Capital Group,
Inc. v. Public Utility District No. 1 of Snohomish
County, 128 S. Ct. 2733 (2008).
6 Morgan Stanley Capital Group, Inc. v. Public
Utility District No. 1 of Snohomish County, 128 S.
Ct. 2733 (2008) (Morgan Stanley).
5 Id.
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[FR Doc. E8–30622 Filed 12–24–08; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
RIN 1545–BI45
Guidance Regarding Foreign Base
Company Sales Income
AGENCY: Internal Revenue Service (IRS),
Treasury.
ACTION: Notice of proposed rulemaking
by cross-reference to temporary
regulations and notice of public hearing.
SUMMARY: In the Rules and Regulations
section of this issue of the Federal
Register, the IRS and Treasury
Department are issuing temporary
regulations relating to foreign base
company sales income, in cases in
which personal property sold by a
controlled foreign corporation (CFC) is
manufactured, produced, or constructed
pursuant to a contract manufacturing
arrangement or by one or more branches
of the CFC. The temporary regulations
modify the foreign base company sales
income regulations to address current
business structures and practices,
particularly the growing importance of
contract manufacturing and other
manufacturing arrangements. The
temporary regulations, in general, will
affect CFCs and their United States
shareholders. The text of the temporary
regulations also serves as the text of the
proposed regulations. This document
also provides notice of a public hearing.
DATES: Written or electronic comments
must be received by March 30, 2009.
Outlines of the topics to be discussed at
7 Maine Public Utilities Commission v. FERC, 520
F.3d 464, petition for reh’g denied, No. 06–1403,
slip op. (D.C. Cir. Oct. 6, 2008) (Maine PUC)
(discussing, among other issues, the circumstances
in which it is appropriate to apply the Mobile-Sierra
presumption).
E:\FR\FM\29DEP1.SGM
29DEP1
]]>Agencies
[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Proposed Rules]
[Pages 79420-79421]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30622]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 35
[Docket No. RM05-35-000]
Standard of Review for Modifications to Jurisdictional Agreements
Issued December 18, 2008.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Withdrawal of notice of proposed rulemaking and termination of
rulemaking proceeding.
-----------------------------------------------------------------------
SUMMARY: The Commission withdraws a notice of proposed rulemaking,
which proposed that, in the absence of specific contractual language
enabling Commission review of proposed contractual modifications not
agreed to by the signatories (or their successors) under a ``just and
reasonable'' standard, the Commission would review such modifications
under a ``public interest'' standard.
DATES: Effective Date: This withdrawal published at 71 FR 303, January
4, 2006, will become effective January 28, 2009.
FOR FURTHER INFORMATION CONTACT: Hadas Kozlowski (Legal Information),
Office of the General Counsel, Federal Energy Regulatory Commission,
888 First Street, NE., Washington, DC 20426, (202) 502-8030.
SUPPLEMENTARY INFORMATION:
125 FERC ] 61,310.
United States of America, Federal Energy Regulatory Commission.
Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G.
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.
Standard of Review for Modifications to Jurisdictional Agreements;
Withdrawal of Notice of Proposed Rulemaking and Termination of
Rulemaking Proceeding.
Docket No. RM05-35-000
(Issued December 18, 2008.)
1. On December 27, 2005, the Commission issued a Notice of Proposed
Rulemaking (NOPR) in this proceeding.\1\ For the reasons set forth
below, we are exercising our discretion to withdraw the NOPR and
terminate this rulemaking proceeding.
---------------------------------------------------------------------------
\1\ Standard of Review for Modifications to Jurisdictional
Agreements, Notice of Proposed Rulemaking, 71 FR 303 (Jan. 4, 2006),
FERC Stats. & Regs. ] 32,596 (2005) (NOPR).
---------------------------------------------------------------------------
I. Background
2. In the NOPR, the Commission proposed to repeal its regulation at
18 CFR 35.1(d) and, in its place,
[[Page 79421]]
promulgate a general rule regarding the standard of review that must be
met to justify proposed modifications to Commission-jurisdictional
agreements under the Federal Power Act (FPA) and Natural Gas Act (NGA)
that are not agreed to by the signatories (or their successors). The
Commission noted that courts were divided as to whether, in the face of
contractual silence, the Commission was required to apply the ``public
interest'' standard of review or the ``just and reasonable'' standard
of review to proposed modifications.\2\ The NOPR thus focused on the
standard of review applicable to proposed changes in contracts in the
absence of contractual language specifying the standard of review
preferred by the parties. The NOPR did not address other issues such as
the showing needed to satisfy the ``Mobile-Sierra presumption.'' \3\
---------------------------------------------------------------------------
\2\ NOPR, FERC Stats. & Regs. ] 32,596 at P 8 (citing Boston
Edison Co. v. FERC, 233 F.3d 60 (1st Cir. 2000)). The Boston Edison
court stated that these issues would remain in a state of confusion
until the Commission ``squarely confronted the underlying issues.''
Boston Edison, 233 F.3d at 68.
\3\ Morgan Stanley Capital Group, Inc. v. Public Utility
District No. 1 of Snohomish County, 128 S. Ct. 2733, 2739 (2008)
(Morgan Stanley) (referring to United Gas Pipe Line Co. v. Mobile
Gas Serv. Corp., 350 U.S. 332 (1956); FPC v. Sierra Pacific Power
Co., 350 U.S. 348 (1956) (Mobile-Sierra)).
---------------------------------------------------------------------------
3. The Commission, in the NOPR, proposed a regulation which
provided that, in the absence of prescribed contractual language
enabling the Commission to review proposed modifications to agreements
that are not agreed to by the signatories (or their successors) under a
``just and reasonable'' standard of review, the Commission will review
such proposed modifications under a ``public interest'' standard of
review. The Commission concluded that the weight of court precedent
supported application of the ``public interest'' standard when
evaluating proposed changes to such contracts, unless the contract
language expressly invokes the ``just and reasonable'' standard. The
Commission stated that this standard would promote contract certainty.
Additionally, the Commission recognized the importance of providing
certainty and stability in competitive electric energy markets.
II. Discussion
4. There is no longer a need for a rulemaking regarding the default
standard of review, as the Supreme Court has addressed the law in this
area. Since issuance of the NOPR, the United States Supreme Court has
addressed the Mobile-Sierra doctrine in Morgan Stanley. The Court held
that the Mobile-Sierra doctrine is a presumption that rates initially
set in a freely negotiated contract meet the statutory just and
reasonable requirement of the FPA.\4\ The Court explained that
``parties could contract out of the Mobile-Sierra presumption by
specifying in their contracts that a new rate filed with the Commission
would supersede the contract rate,'' but otherwise ``the Mobile-Sierra
presumption remains the default rule.'' \5\
---------------------------------------------------------------------------
\4\ Id. at 2737; accord id. at 2746.
\5\ Id. at 2739; cf. Public Util. Dist. No. 1 v. FERC, 471 F.3d
1053, 1075 (9th Cir. 2006),aff'd and remanded sub nom., Morgan
Stanley Capital Group, Inc. v. Public Utility District No. 1 of
Snohomish County, 128 S. Ct. 2733 (2008).
---------------------------------------------------------------------------
5. Because the Supreme Court in Morgan Stanley has since addressed
the default standard, the Commission concludes that it is no longer
necessary to adopt the regulation proposed in the NOPR. The Commission
therefore withdraws the NOPR and terminates this rulemaking proceeding.
The Commission orders:
The Notice of Proposed Rulemaking is hereby withdrawn and Docket
No. RM05-35-000 is hereby terminated.
By the Commission. Commissioners Kelly and Wellinghoff
concurring with a separate joint statement attached.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
United States of America, Federal Energy Regulatory Commission.
Standard of Review for Modifications to Jurisdictional Agreements
Docket No. RM05-35-000
(Issued December 18, 2008.)
Kelly and Wellinghoff, Commissioners, concurring:
This order terminates the rulemaking proceeding on the standard of
review for modifications to jurisdictional agreements, withdrawing the
Notice of Proposed Rulemaking (NOPR) that the Commission issued in
2005. This order states that, since the issuance of the NOPR, the
United States Supreme Court addressed the Mobile-Sierra doctrine,
including the default standard of review, in Morgan Stanley.\6\ As a
result, the majority finds that there is no longer a need for a
rulemaking regarding the default standard of review.
---------------------------------------------------------------------------
\6\ Morgan Stanley Capital Group, Inc. v. Public Utility
District No. 1 of Snohomish County, 128 S. Ct. 2733 (2008) (Morgan
Stanley).
---------------------------------------------------------------------------
We agree that the rulemaking proceeding on the standard of review
for modifications to jurisdictional agreements should be terminated.
However, we believe that in reaching that conclusion, it is appropriate
to recognize not only the Morgan Stanley decision, but also the U.S.
Court of Appeals for the District of Columbia Circuit's recent decision
in Maine Public Utilities Commission v. FERC.\7\ Because the Commission
is bound by the rulings in Morgan Stanley and Maine PUC, we conclude
that there is no longer a need for a rulemaking regarding the default
standard of review.
---------------------------------------------------------------------------
\7\ Maine Public Utilities Commission v. FERC, 520 F.3d 464,
petition for reh'g denied, No. 06-1403, slip op. (D.C. Cir. Oct. 6,
2008) (Maine PUC) (discussing, among other issues, the circumstances
in which it is appropriate to apply the Mobile-Sierra presumption).
---------------------------------------------------------------------------
For this reason, we concur with this order.
Suedeen G. Kelly,
Commissioner.
Jon Wellinghoff,
Commissioner.
[FR Doc. E8-30622 Filed 12-24-08; 8:45 am]
BILLING CODE 6717-01-P
