[Federal Register: December 29, 2008 (Volume 73, Number 249)]
[Proposed Rules]
[Page 79420-79421]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29de08-23]
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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.
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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.
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\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).
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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\
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\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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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\
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\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).
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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.
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\6\ Morgan Stanley Capital Group, Inc. v. Public Utility
District No. 1 of Snohomish County, 128 S. Ct. 2733 (2008) (Morgan
Stanley).
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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.
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\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).
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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