[Federal Register: December 1, 2005 (Volume 70, Number 230)]
[Proposed Rules]
[Page 72090-72094]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01de05-18]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 284
[Docket No. RM06-5-000]
Amendments to Codes of Conduct for Unbundled Sales Service and
for Persons Holding Blanket Marketing Certificates
November 21, 2005.
AGENCY: Federal Energy Regulatory Commission, DOE.
[[Page 72091]]
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
proposing to amend its regulations regarding the blanket certificates
for unbundled gas sales services held by interstate natural gas
pipelines and the blanket marketing certificates held by persons making
sales for resale of gas at negotiated rates in interstate commerce.
Specifically, the Commission proposes to repeal sections of the
Commission's regulations pertaining to codes of conduct with respect to
certain sales of natural gas once we have issued final regulations
implementing the anti-manipulation provisions of the Energy Policy Act
of 2005 and have incorporated other aspects of such regulations in
appropriate Commission orders, rules and regulations. The Commission
seeks public comment on whether such regulations should be repealed as
proposed herein.
DATES: Comments are due January 3, 2006. Reply comments are due January
17, 2006.
ADDRESSES: Comments may be filed electronically via the eFiling link on
the Commission's Web site at http://www.ferc.gov. Commenters unable to
file comments electronically must send an original and 14 copies of
their comments to: Federal Energy Regulatory Commission, Office of the
Secretary, 888 First Street, NE., Washington, DC 20426. Refer to the
Comment Procedures section of the preamble for additional information
on how to file comments.
FOR FURTHER INFORMATION CONTACT: Frank Karabetsos, Office of General
Counsel, Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426, (202) 502-8133, Frank.Karabetsos@ferc.gov.
SUPPLEMENTARY INFORMATION:
Introduction
1. In this Notice of Proposed Rulemaking (NOPR), the Commission
seeks comments on whether to repeal sections 284.288 and 284.403 of its
regulations,\1\ which requires that pipelines and all sellers for
resale adhere to a code of conduct with respect to certain sales of
natural gas, as implemented pursuant to Order No. 644.\2\ The central
purpose of sections 284.288 and 284.403 of the Commission's regulations
is to prohibit market manipulation. In the Energy Policy Act of 2005
(EPAct 2005),\3\ Congress enacted new section 4A of the Natural Gas Act
(NGA) which specifically bars manipulation in connection with the
purchase or sale of natural gas or transportation services and
authorizes the Commission to promulgate rules and regulations
prohibiting market manipulation. In a Notice of Proposed Rulemaking
issued October 20, 2005, the Commission has proposed rules to implement
the new statutory anti-manipulation provisions.\4\ We propose repealing
sections 284.288 and 284.403 of the Commission's regulations once we
have issued final regulations implementing the anti-manipulation
provisions of EPAct 2005 and have incorporated other aspects of
sections 284.288 and 284.403 of the Commission's regulations in
appropriate Commission orders, rules, and regulations. We are also
requesting comment on whether sections 284.288 and 284.403 should be
repealed prospectively.
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\1\ 18 CFR 284.288 and 284.403 (2005). Sections 284.288 and
284.403 of the Commission's regulations are provided in Attachment A
hereto.
\2\ Amendments to Blanket Sales Certificates, Order No. 644, 105
FERC ] 61,217 (2003), reh'g denied 107 FERC ] 61,174; 68 FR 66,323
(Nov. 26, 2003); 18 CFR 284.288(a) and 284.403(a) (2003) (Order No.
644). Order No. 644 is currently on appeal. See Cinergy Marketing &
Trading, L.P. v. FERC, No. 04-1168 et al. (D.C. Cir., appeal filed
April 28, 2004).
\3\ Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594
(2005).
\4\ Prohibition of Energy Market Manipulation, 113 FERC ] 61,067
(2005) (Prohibition of Energy Market Manipulation NOPR).
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Background
2. On November 17, 2003, acting pursuant to section 7 of the NGA,
we issued a final rule, Order No. 644, amending blanket certificates
for unbundled gas sales services held by interstate natural gas
pipelines and blanket marketing certificates held by persons making
sales for resale of natural gas at negotiated rates in interstate
commerce. This rule requires that pipelines that provide unbundled
natural gas sales service and all sellers of natural gas for resale
adhere to a code of conduct with respect to natural gas sales. The
Commission determined that in order to protect and maintain the
competitive natural gas market and to continue its light-handed
regulation of the gas sales within its jurisdiction, it was necessary
to place additional conditions on its grant of market-based sales
certificates. In formulating such conditions to the market-based rate
certificates the Commission was fulfilling its obligation to
appropriately monitor markets and to ensure that market-based rates
remain within the zone of reasonableness required by the NGA.\5\
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\5\ 105 FERC ] 61,217 at P 91 (2003).
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3. Under sections 284.288(a) and 284.403(a) of the Commission's
regulations, a pipeline providing unbundled natural gas sales service
under section 284.284, or any person making natural gas sales for
resale in interstate commerce pursuant to section 284.402, ``is
prohibited from engaging in actions or transactions that are without a
legitimate business purpose and that are intended to or foreseeably
could manipulate market prices, market conditions, or market rules for
natural gas.'' Prohibited actions or transactions include wash trades
and collusion for the purpose of market manipulation.\6\
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\6\ 18 CFR 284.288(a)(1)-(2) and 284.403(a)(1)-(2) (2005).
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4. Sections 284.288(b) and 284.403(b) deal with reporting of
transaction information to price index publishers. They require that if
a seller reports transaction data, the data be accurate and factual,
and not knowingly false or misleading, and be reported in accordance
with the Commission's Policy Statement on price indices.\7\ Sections
284.288(b) and 284.403(b) also require that sellers notify the
Commission of whether they report transaction data to price index
publishers in accordance with the Policy Statement, and to update any
changes in their reporting status.
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\7\ Policy Statement on Natural Gas and Electric Price Indices,
104 FERC ] 61,121 (2003).
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5. Sections 284.288(c) and 284.403(c) require that sellers retain
for a minimum three year period all data and information upon which
they billed the prices charged for natural gas sales made under their
market-based sales certificates or in transactions the prices of which
were reported to price index publishers.
6. Sections 284.288(d)-(e) and 284.403(d)-(e) of the Commission's
regulations are largely procedural in nature. Specifically, sections
284.288(d) and 284.403(d) deal with remedies for violations of the
codes of conduct requirements set forth in preceding paragraphs (a)
through (c) of sections 284.288 and 284.403. Sections 284.288(e) and
284.403(e) deal with time limits on complaints and Commission
enforcement of the codes of conduct requirements.
7. At the same time that Order No. 644 was adopted for pipelines
that provide unbundled natural gas sales service and holders of blanket
certificate authority that make sales for resale of natural gas, the
Commission also issued an order to require wholesale sellers of
electricity at market-based rates to
[[Page 72092]]
adhere to certain behavioral rules when making sales of electricity.\8\
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\8\ Investigation of Terms and Conditions of Public Utility
Market-Based Rate Authorizations, ``Order Amending Market-Based Rate
Tariffs and Authorizations,'' 105 FERC ] 61,218 (2003), reh'g
denied, 107 FERC ] 61,175 (2004) at Appendix A.
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EPAct 2005 and Proposed New Rules
8. As noted, section 315 of EPAct 2005 amended the NGA to add a new
section 4A, which prohibits the use or employment of ``any manipulative
or deceptive device or contrivance'' in connection with the purchase or
sale of natural gas or the purchase or sale of transportation services
subject to the jurisdiction of the Commission. In order to implement
the anti-manipulation provisions of NGA section 4A, we issued the
Prohibition of Energy Market Manipulation NOPR, proposing new
regulations (proposed Part 159 regulations) to make it unlawful for any
entity, directly or indirectly, in connection with the purchase or sale
of natural gas or the purchase or sale of transportation services
subject to the jurisdiction of the Commission (1) to use or employ any
device, scheme, or artifice to defraud, (2) to make any untrue
statement of a material fact or to omit to state a material fact
necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading, or (3) to
engage in any act, practice, or course of business that operates or
would operate as a fraud or deceit upon any person.\9\
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\9\ The proposed Part 159 regulations are also provided in
Attachment A hereto.
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9. In the Prohibition of Energy Market Manipulation NOPR, we
recognized that sections 284.288(a) and 284.403(a) of the Commission's
regulations also prohibit manipulative conduct. We noted that conduct
that violates sections 284.288(a) or 284.403(a) and the proposed Part
159 regulations will be treated as one violation of anti-manipulation
rules, and that we will not apply duplicative penalties for the same
conduct in the event that conduct were to violate both sections
284.288(a) or 284.403(a) and the proposed Part 159 regulations. We also
indicated that we would seek comment on whether sections 284.288(a) and
284.403(a) of the Commission's regulations should be revised or
repealed in light of the proposed Part 159 regulations.
Discussion
10. Our goal is to provide firm but fair enforcement of the
statutes, orders, rules, and regulations we administer. To do so, it is
important that our rules be as clear as possible so that market
participants and entities subject to our rules and regulations
understand what conduct is proscribed and can act accordingly.\10\ We
propose to repeal sections 284.288 and 284.403 in light of the proposed
Part 159 regulations to implement the new anti-manipulation provisions
contained in section 4A of the NGA and of the Commission's other rules
and regulations.\11\ All market participants subject to sections
284.288 and 284.403 are ``entities'' subject to EPAct 2005 and
therefore will be subject to the new regulations prohibiting
manipulation, deceit, and fraud in connection with wholesale natural
gas transactions. Other aspects of sections 284.288 and 284.403 of the
Commission's regulations either reflect existing requirements or can be
incorporated into other rules, making it unnecessary to retain the
separate list of rules in sections 284.288(a)-(e) and 284.403(a)-(e) of
the Commission's regulations.
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\10\ As discussed in the Prohibition of Energy Market
Manipulation NOPR (at P 14), section 4A of the NGA, as added by
section 315 of EPAct 2005, and the proposed implementing rules are
patterned after section 10(b) of the Securities Exchange Act of 1934
and related regulations, which provides a level of certainty as to
how the proposed rules will operate that is not typically available.
\11\ Concurrently with this NOPR, we are issuing an order
pursuant to section 206 of the Federal Power Act (FPA) in Docket No.
EL06-16-000 to consider similar changes to the Market Behavior
Rules, which are currently included in all public utility sellers'
market-based rate tariffs and authorizations.
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11. We think that repeal of sections 284.288 and 284.403 of the
Commission's regulations will simplify the Commission's rules and
regulations, avoid confusion, and provide greater clarity and
regulatory certainty to the industry. At the same time, we think that
the behaviors described in sections 284.288 and 284.403 of the
Commission's regulations will still be addressed through other rules
and regulations. We emphasize our belief that repeal of sections
284.288 and 284.403 of the Commission's regulations is intended to take
into account the passage of EPAct 2005, which has provided the
Commission with expanded anti-manipulation authority, and to simplify
and streamline the rules and regulations sellers must follow, not to
eliminate beneficial rules governing market behavior.
12. The heart of sections 284.288 and 284.403 of the Commission's
regulations is subparagraph (a), prohibiting manipulation. We recognize
that there is overlap between sections 284.288(a) and 284.403(a) of the
Commission's regulations and the proposed Part 159 regulations. We are
concerned that this could cause unnecessary confusion and regulatory
uncertainty once the proposed Part 159 regulations are in place. It is
our view that the scope of the new statutory prohibition on
manipulation and the reach of the proposed Part 159 regulations
eliminate the need for sections 284.288(a) and 284.403(a) of the
Commission's regulations.
13. We recognize there are some differences, but the differences do
not seem to require keeping sections 284.288 and 284.403 of the
Commission's regulations once the new Part 159 regulations are
final.\12\ For instance, there is a difference in the standard of proof
between sections 284.288(a) and 284.403(a) of the Commission's
regulations and the proposed Part 159 regulations. In new section 4A of
the NGA, Congress used the terms ``manipulative or deceptive device or
contrivance'' and directed that they be given the same meaning as used
in section 10b of the Securities Exchange Act of 1934.\13\
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\12\ The timing of proposed repeal is important. We do not
intend to leave any gap in our regulations prohibiting manipulation
of energy markets or other requirements of sections 284.288 and
284.403 of the Commission's regulations.
\13\ 15 U.S.C. 78j(b) (2005).
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Those terms have been interpreted to require a showing of scienter,
that is, an intent to deceive, manipulate or defraud.\14\ In other
words, knowing, intentional, or reckless conduct is proscribed.\15\ In
contrast, sections 284.288(a) and 284.403(a) of the Commission's
regulations do not require a showing of scienter, as they prohibit
actions or transactions that ``foreseeably'' could manipulate market
prices, conditions, or rules. The ``foreseeably'' requirement has
generated controversy and uncertainty, however. We believe the use of a
scienter standard, given the precedent in other regulatory contexts,
will draw a clearer line between acceptable and prohibited behavior.
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\14\ Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201 (1976).
\15\ Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033 (7th
Cir. 1977), cert. denied, 434 U.S. 875 (1977) (defining recklessness
in the section 10(b) and Rule 10b-5 context as ``a highly
unreasonable omission, involving not merely simple, or even
inexcusable negligence, but an extreme departure from the standards
of ordinary care, and which presents a danger of misleading buyers
or sellers that is either known to the defendant or is so obvious
that the actor must have been aware of it.''); accord In Re Silicon
Graphics Securities Litigation, 183 F.3d 970, 977 (9th Cir. 1999).
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14. We also note that the new authority granted to the Commission
in section 4A of the NGA and our proposed Part 159 regulations governs
more transactions and more entities
[[Page 72093]]
than is the case for sections 284.288(a) and 284.403(a) of the
Commission's regulations, which covers only certain natural gas
sellers. More precisely, Congress made the anti-manipulation provisions
of section 315 applicable to ``any entity'' and in connection with both
the purchase and sale of natural gas, as well as the purchase or sale
of transportation services subject to our jurisdiction. Sections
284.288(a) and 284.403(a) of the Commission's regulations, on the other
hand, are applicable only to a pipeline providing unbundled natural gas
sales service under section 284.284, or any person making natural gas
sales for resale in interstate commerce pursuant to section 284.402, a
smaller subset of the entities and types of transactions than those
subject to EPAct 2005 section 315 prohibition of manipulation.
15. Additionally, it is our view that it is not necessary to retain
the explicit prohibitions against certain conduct set forth in sections
284.288(a)(1)-(2) and 284.403(a)(1)-(2) (wash trades and collusion for
the purpose of market manipulation). These are examples of prohibited
manipulation, both of which are manipulative or deceptive devices or
contrivances. Thus, both would be barred by the proposed Part 159
regulations. For example, wash trades would be devices or schemes to
defraud (proposed section 159.1(a)(1)). It is our view that market
participants are on notice that wash trades and colluding to manipulate
are prohibited activities under the proposed Part 159 regulations,
subject to penalty and remedial action.
16. Turning to the other subparagraphs of sections 284.288 and
284.403 of the Commission's regulations, it appears that the
requirements imposed there either are duplicative of other rules or
regulations or can be incorporated into other rules of general
applicability. For instance, the first part of sections 284.288(b) and
284.403(b), requiring sellers to provide accurate data to price index
publishers if the seller is reporting transactions to such publishers,
calls for accurate and truthful representations. It is our view that
failure to do so would be a violation of the proposed Part 159
regulations.
Sections 284.288(b) and 284.403(b) of the Commission's regulations
also include a requirement that sellers notify the Commission of their
price reporting status and any changes in that status. This does not
appear elsewhere in our current or proposed regulations. We note,
however, that price transparency is also addressed by EPAct 2005, which
adds new section 23 to the NGA. Section 23 gives us authority to
promulgate rules and regulations necessary to facilitate price
transparency. We intend to address market transparency issues in a
separate proceeding, and anticipate that rules adopted in that
proceeding will address the sections 284.288(b) and 284.403(b)
requirements for providing transaction information to price index
publishers and informing the Commission of price reporting status.
17. Sections 284.288(c) and 284.403(c) requires sellers to maintain
certain records for a period of three years to reconstruct prices
charged for natural gas. The Commission has a number of specific record
retention requirements applicable to natural gas companies subject to
the jurisdiction of the Commission in Part 225 of our regulations.\16\
In many cases, these requirements are for time periods longer than
three years. The Part 225 requirements are largely related to cost-of-
service rate requirements, however. We believe it is important that all
pipelines providing unbundled natural gas sales service and all persons
holding blanket certificates making natural gas sales for resale in
interstate commerce retain the data and information described in
sections 284.288(c) and 284.403(c) of the Commission's regulations. We
intend to address this retention requirement in the context of our
rules under the NGA, such that there will be no gap in the retention
requirement. We believe that doing so would eliminate the need to
retain sections 284.288(c) and 284.403(c) of the Commission's
regulations.
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\16\ 18 CFR Part 225 (2005).
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18. If the Commission decides to repeal sections 284.288(a)-(c) and
284.403(a)-(c) of its regulations, it is the Commission's view that
sections 284.288(d) and 284.403(d) of the Commissions' regulations,
dealing with remedies, and sections 284.288(e) and 284.404(e), dealing
with time limits on complaints and Commission enforcement, are largely
procedural and would become superfluous without the underlying
operative paragraphs and therefore should be deleted.
19. In addition to simplifying our codes of conduct rules, avoiding
confusion, and providing more regulatory certainty, it is also our view
that a smooth transition from the existing codes of conduct regulations
to the proposed Part 159 regulations and other rules and regulations
achieves our original goal in adopting sections 284.288 and 284.403 of
the Commission's regulations, that is, to fulfill our obligation to
ensure that market-based rates remain within the zone of reasonableness
required by the NGA. In EPAct 2005, Congress has provided broad and
strong prohibitions of market manipulation, and reliance on rules
implementing these statutory prohibitions will likewise assure that
wholesale markets reflect competitive forces and produce just and
reasonable rates.
20. We seek comment on whether sections 284.288 and 284.403 of the
Commission's regulations should be repealed prospectively, including
responses to the following questions:
A. Are there any aspects of sections 284.288 and 284.403 of the
Commission's regulations that should be retained, or can all
substantive provisions of sections 284.288 and 284.403 of the
Commission's regulations be reflected in the proposed Part 159
regulations and other Commission rules and regulations?
B. Is there a need or basis for retaining existing sections
284.288(a) and 284.403(a) of the Commission's regulations in light of
the anti-manipulation provisions set forth in the proposed Part 159
regulations?
C. Should the affirmative defense of ``legitimate business
purpose'' in existing sections 284.288(a) and 284.403(a) of the
Commission's regulations be retained in any form?
D. Is the requirement of sections 284.288(b) and 284.403(b) of the
Commission's regulations to report transaction information accurately,
to the extent a seller reports such information to price index
publishers, necessary in light of the proposed Part 159 regulations?
21. We encourage responses to the specific questions above as well
as additional relevant comments regarding whether sections 284.288 and
284.403 of the Commission's regulations should be repealed.
Information Collection Statement
22. This proposed rule implements the existing requirements as set
forth in section 4A of the NGA and does not include new information
requirements under the provisions of the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.).
Environmental Analysis
23. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\17\ The
Commission has
[[Page 72094]]
categorically excluded certain actions from these requirements as not
having a significant effect on the human environment.\18\ The actions
proposed here fall within categorical exclusions in the Commission's
regulations for rules that are clarifying, corrective, or procedural,
for information gathering, analysis, and dissemination, and for sales,
exchange, and transportation of natural gas that requires no
construction of facilities.\19\ Therefore, an environmental assessment
is unnecessary and has not been prepared in this NOPR.
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\17\ Order No. 486, Regulations Implementing the National
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. &
Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
\18\ 18 CFR 380.4 (2005).
\19\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27)
(2005).
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Regulatory Flexibility Act
24. The Regulatory Flexibility Act of 1980 (RFA) \20\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small
entities.\21\ The Commission is not required to make such analyses if a
rule would not have such an effect.
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\20\ 5 U.S.C. 601-12 (2000).
\21\ The RFA definition of ``small entity'' refers to the
definition provided in the Small Business Act, which defines a
``small business concern'' as a business that is independently owned
and operated and that is not dominant in its field of operation. 15
U.S.C. 632 (2000). The Small Business Size Standards component of
the North American Industry Classification System defines a small
electric utility as one that, including its affiliates, is primarily
engaged in the generation, transmission, and/or distribution of
electric energy for sale and whose total electric output for the
preceding fiscal years did not exceed 4 million MWh. 13 CFR 121.201
(2004) (Section 22, Utilities, North American Industry
Classification System, NAICS).
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25. The Commission does not believe that this proposed rule would
have such an impact on small entities. The proposed rule merely repeals
sections 284.288 and 284.403 of the Commission's regulations.
Therefore, the Commission certifies that this proposed rule, if
finalized, will not have a significant economic impact on a substantial
number of small entities.
Comment Procedures
26. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice to be adopted, including
any related matters or alternative proposals that commenters may wish
to discuss. Comments are due January 3, 2006. Reply comments are due
January 17, 2006. Comments must refer to Docket No. RM06-5-000, and
must include the commenter's name, the organization they represent, if
applicable, and their address in their comments. Comments may be filed
either in electronic or paper format. Comments may be filed
electronically via the eFiling link on the Commission's Web site at
http://www.ferc.gov. The Commission accepts most standard word
processing formats and commenters may attach additional files with
supporting information in certain other file formats. Commenters filing
electronically do not need to make a paper filing. Commenters that are
not able to file comments electronically must send an original and 14
copies of their comments to: Federal Energy Regulatory Commission,
Office of the Secretary, 888 First Street, NE., Washington, DC 20426.
27. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
Document Availability
28. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5 p.m.
eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.
29. From FERC's Home Page on the Internet, this information is
available in the eLibrary. The full text of this document is available
in the eLibrary both in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
User assistance is available for eLibrary and the FERC's Web site
during our normal business hours. For assistance contact FERC Online
Support at FERCOnlineSupport@ferc.gov or toll-free at (866) 208-3676,
or for TTY, contact (202) 502-8659.
List of Subjects in 18 CFR Part 284
Continental Shelf, Natural gas, Reporting and recordkeeping
requirements.
By direction of the Commission.
Magalie R. Salas,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
part 284, chapter I, title 18, Code of Federal Regulations, as follows.
PART 284--CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE
NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES
1. The authority citation for part 284 continues to read as
follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7532;
43 U.S.C. 1331-1356.
Sec. 284.288 [Removed]
2. Remove Sec. 284.288.
Sec. 284.403 [Removed]
3. Remove Sec. 284.403.
[FR Doc. 05-23405 Filed 11-30-05; 8:45 am]
BILLING CODE 6717-01-P