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Federal Register / Vol. 71, No.

2 / Wednesday, January 4, 2006 / Proposed Rules 307

the First Circuit in Boston Edison 5 to standard of review in FPA section 206 opined that ‘‘[i]t all depends on whose
eliminate uncertainty regarding whether and NGA section 5 proceedings initiated ox is gored and how the public interest
the Mobile-Sierra ‘‘public interest’’ or by a buyer or the Commission. That is is affected.’’ 14 Adoption of a new,
the ‘‘just and reasonable’’ standard not the case. Mobile and Sierra involved default ‘‘public interest’’ standard of
applies in the face of contractual what standard of review should apply review opens the door to uncertainty
silence.6 Specifically, the court in when regulated sellers with contracts and extensive future litigation to resolve
Boston Edison suggested that the already on file with the Commission its meaning.
Commission prescribe prospectively the attempted to unilaterally raise the To achieve the goal of certainty and
terms that parties would have to use to contractual rate by filing for a new rate stability in energy markets, the
invoke the ‘‘public interest’’ standard. under section 205 and section 4 and Commission should act to preserve the
That is not what the Commission has showing that the new rate was just and application of the statutory ‘‘just and
done here. Instead of telling contracting reasonable. These cases did not involve reasonable’’ standard of review as the
parties what language they can use to what standard of review should apply default when the parties’ intent is
invoke the ‘‘public interest’’ standard, when a buyer or the Commission unspecified or unclear. The ‘‘just and
the Commission provides that the challenges the rate on file as unjust and reasonable’’ standard has been used
parties need take no action, nor use any unreasonable under FPA section 206 or extensively over the last 70 years to
language, to invoke that standard. Under NGA section 5. Here, the Commission review rates, terms and conditions in
the NOPR, the ‘‘public interest’’ proposes to bind itself to the stricter both the electricity and gas industries. It
standard will be available at all times, Mobile-Sierra ‘‘public interest’’ standard is well-known and well-defined. It has
in all circumstances, when the contract of review when acting under section 206 guided contracting in these industries
is silent. Thus, a ‘‘public interest’’ or section 5 where parties are silent as for the life of them. It has provided a
standard becomes the default standard, to the applicable standard of review. clear benchmark against which to draft
and the Commission prescribes terms Mobile and Sierra do not support this a contract and craft performance of that
that parties must include in their proposed action. contract. There is no evidence that this
contract to keep their statutory right to The proposed regulation also departs standard has been a problem for
a ‘‘just and reasonable’’ standard. This abruptly from the Commission’s contracting parties, or for the industries
turns the statute on its head. precedent on what standard of review themselves. There is no evidence that
In addition, the NOPR does not applies when the Commission acts sua this standard has been a hindrance to
explain that the Boston Edison court sponte or on behalf of non-parties.10 Yet contract sanctity. In fact, this NOPR
went on to opine that ‘‘FERC has the NOPR relies on this same precedent acknowledges as much by proposing to
reasonably broad powers to regulate the to support its assertion that the continue to apply the ‘‘just and
substantive terms of filings that it Commission is not bound to employ a reasonable’’ standard to electric
accepts and allows to become effective,’’ ‘‘public interest’’ standard of review transmission and gas transportation
which may ‘‘include the power to when the Commission undertakes an service agreements. Certainty and
require prospectively, by regulation that initial review of an agreement.11 stability in the electric and gas
all contracts set their rates subject to industries will only be fostered by
FERC’s just and reasonable standard.’’ 7 III. Certainty and Stability in Energy
Markets consistent regulation.
That is the action that the Commission Accordingly, for the reasons
should be proposing today. I disagree with the NOPR’s assertion discussed above, I respectfully dissent.
The Commission erroneously relies that the proposed regulation will
on the initial Mobile 8 and Sierra 9 cases provide certainty and stability in energy Suedeen G. Kelly
as support for its proposal to default to markets. Adopting a Mobile-Sierra
the Mobile-Sierra ‘‘public interest’’ ‘‘public interest’’ standard as the new [FR Doc. E5–8217 Filed 1–3–06; 8:45 am]
standard in FPA section 206 or NGA default standard of review in section BILLING CODE 6717–01–P
section 5 proceedings. The NOPR states 206 and section 5 proceedings with
that these cases stand for the respect to these jurisdictional
proposition that the Supreme Court agreements will inject uncertainty and DEPARTMENT OF AGRICULTURE
interpreted contractual silence as instability into the industries. As the
requiring the ‘‘public interest’’ standard NOPR recognizes, the ‘‘public interest’’ Forest Service
of review. The implication is that the standard of review is not clearly
Court requires a ‘‘public interest’’ defined. Courts have variably described 36 CFR Part 219
this standard as ‘‘practically
5 Boston Edison Co. v. FERC, 233 F.3d 60 (1st Cir. insurmountable’’ 12 and as not being RIN 0596–AC43
2000). ‘‘considered ‘practically
6 The Boston Edison court noted that even cases National Forest System Land
insurmountable’ in all
within the D.C. Circuit ‘‘do not form a completely Management Planning
consistent pattern.’’ Id. at 67, citing Texaco Inc. v. circumstances.’’ 13 The First Circuit has
FERC, 148 F.3d 1091, 1096 (D.C. Cir. 1998) and AGENCY: Forest Service, USDA.
Union Pacific Fuels, Inc. v. FERC, 129 F.3d 157, 10 See ITC Holdings Corp., 102 FERC ¶ 61,182 ACTION: Notice of proposed rulemaking;
161–62 (D.C. Cir. 1997) (where the D.C. Circuit, (2003); Southern Company Services, 67 FERC
faced with contracts in which parties did not ¶ 61,080 (1994); and Florida Power & Light Co., 67 request for comment.
expressly state what standard of review would FERC ¶ 61,141 (1994).
apply to rate changes initiated by the Commission 11 See NOPR at P 10 & n. 19. SUMMARY: The Forest Service is
held in the former case that the Commission could 12 Papago Tribal Util. Auth. v. FERC, 723 F.2d proposing a technical change to the
only modify the contract under a ‘‘public interest’’ 950, 954 (D.C. Cir. 1983), cert. denied, 467 U.S. transition language contained in the
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standard but, in the latter case, that the Commission 1241 (1984).
could apply a ‘‘just and reasonable’’ standard). 2005 planning rule (70 FR 1023; Jan. 5,
13 Northeast Utils. Serv. Co., 55 F.3d 686, 692 (1st
7 Boston Edison, 233 F.3d at 68.
Cir. 1995). See also Potomac Electric Power Co. v.
2005). The current transition language
8 United Gas Pipe Line Co. v. Mobile Gas Serv.
FERC, 210 F.3d 403, 408 (D.C. Cir. 2000) (court
Corp., 350 U.S. 332 (1956). concurring with the First Circuit’s finding that to a standard of review that is ‘‘practically
9 FPC v. Sierra Pacific Power Co., 350 U.S. 348 when acting sua sponte or at the request of a third insurmountable’’).
(1956). party to change rates, the Commission is not bound 14 55 F.3d at 691.

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308 Federal Register / Vol. 71, No. 2 / Wednesday, January 4, 2006 / Proposed Rules

requires plan revisions initiated after planning rule or the 2005 planning rule et. seq.). The proposed rule would make
January 5, 2005, to conform to the during the transition period; however, a technical amendment to the transition
requirements in the 2005 planning rule. newly initiated revisions may only use language of the 2005 planning rule, to
In response to a court order affecting the 2005 planning rule. allow the Tongass National Forest to use
only the Tongass National Forest, the One of the differences between the either the current planning regulations
proposed amendment would allow the 1982 planning rule and the 2005 or the regulations in effect before
Tongass National Forest to revise its planning rule is that the former required November 9, 2000 for its next land
land management plan to address the the development of an environmental management plan revision. An initial
errors identified by the court either impact statement (EIS) as part of the small entities flexibility assessment has
under the 2005 Rule or the planning process to revise a land management been made, which indicates that the
regulations in effect before November 9, plan. On August 5, 2005, the Ninth proposed rule will impose no additional
2000. Circuit Court of Appeals issued a requirements on the affected public,
DATES: Comments must be received in decision in Natural Resources Defense which includes small businesses, small
writing by February 3, 2006. Comments Council v. U.S. Forest Service, 421 F.3d not-for-profit organizations, or small
received after this date may be 797, that found errors in the 1997 Final units of government. Accordingly, it has
considered and placed in the record at EIS and Record of Decision for the been determined that this proposed rule
the discretion of the Forest Service. Tongass Land Management Plan. In its will not have a significant economic
ADDRESSES: Send written comments to: decision, the court made several impact on a substantial number of small
USDA FS Planning Rule Technical statements indicating its intent that the entities as defined by SBREFA.
Amendment, P.O. Box 21628, Juneau, Forest Service prepare a new EIS for a No Environmental Impact
AK 99802–1628, Attn: Cherie Shelley; plan revision addressing the errors
identified by the court. For this unique This proposed rule would allow the
via e-mail to planning_rule_technical Tongass National Forest to use either
_amendment@fs.fed.us; or by facsimile situation, this proposed rule will allow
the Tongass National Forest to use the the existing planning regulations or the
to Planning Rule Technical Amendment planning regulations in effect before
Comments at (907) 586–7852. 1982 planning rule to revise its plan to
meet the expectations of the U.S. Court November 9, 2000 for the next revision
Comments also may be submitted by of its land management plan to respond
following the instructions at the Federal of Appeals for the Ninth Circuit.
The Forest Service is seeking public to the court’s order. As such, the
eRulemaking portal at http:// proposed rule has no direct and
www.regulations.gov. If comments are comment on this proposed rule to
amend 36 CFR 219.14(d)(1) to allow the immediate effects regarding the
sent by e-mail or facsimile, the public is occupancy and actual use of the
requested not to send duplicate Tongass National Forest to use either
the 1982 planning rule or the 2005 Tongass National Forest. Section 31.12
comments via regular mail. Please (2) of Forest Service Handbook 1909.15
confine comments to issues pertinent to planning rule for its next revision
addressing the court’s order. (57 FR 43168; September 18, 1992)
the proposed rule, explain the reasons excludes from documentation in an
for any recommended changes and, Regulatory Certifications environmental assessment or impact
where possible, reference the specific statement ‘‘rules, regulations, or policies
wording being addressed. All Regulatory Impact
to establish Service-wide administrative
comments, including names and This proposed rule has been reviewed procedures, program processes, or
addresses when provided, are placed in under USDA procedures and Executive instruction.’’ The 2005 planning
the record and are available for public Order 12866, Regulatory Planning and regulations are a Service-wide program
inspection and copying. The agency Review. It has been determined that this process. The agency’s assessment is that
cannot confirm receipt of comments. is not a significant rule. This rule will this rule falls within this category of
Persons wishing to inspect the not have an annual effect of $100 actions and that no extraordinary
comments need to call (907) 586–8886 million or more on the economy nor circumstances exist which would
to facilitate an appointment. adversely affect productivity, require preparation of an environmental
FOR FURTHER INFORMATION CONTACT: competition, jobs, the environment, assessment or an environmental impact
Cherie Shelley, Director, Ecosystem public health or safety, nor State or local statement.
Planning, Alaska Region, Forest Service, governments. This rule will not interfere
USDA at (907) 586–8887, or Dave with an action taken or planned by Energy Effects
Barone, Planning Specialist, Ecosystem another agency nor raise new legal or This proposed rule has been reviewed
Management Coordination Staff, Forest policy issues. Finally, this action will under Executive Order 13211 of May 18,
Service, USDA at (202) 205–1019. not alter the budgetary impact of 2001, Actions Concerning Regulations
SUPPLEMENTARY INFORMATION: entitlements, grants, user fees, or loan That Significantly Affect Energy Supply,
programs or the rights and obligations of Distribution, or Use. It has been
Background recipients of such programs. determined that this rule does not
On January 5, 2005, the Department of Accordingly, this proposed rule is not constitute a significant energy action as
Agriculture published a final planning subject to Office of Management and defined in the Executive order.
rule (70 FR 1023) governing the Budget review under Executive Order Procedural in nature, this proposed rule
development of land management plans 12866. would allow the Tongass National
required by the National Forest Forest to use either the regulations
Management Act. The 2005 planning Proper Consideration of Small Entities currently in place or the planning
regulations provide for a transition This proposed rule has been regulations in effect before November 9,
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period from the previous planning considered in light of Executive Order 2000 for the next revision of its land
regulations (1982 planning rule) to the 13272 regarding proper consideration of management plan to respond to the
new regulations (2005 planning rule). small entities and the Small Business court’s order. This plan is a
Specifically, § 219.14 of the 2005 Regulatory Enforcement Fairness Act of programmatic document that provides
planning rule allows plans to be 1996 (SBREFA), which amended the guidance and information for future
amended under either the 1982 Regulatory Flexibility Act (5 U.S.C. 601 project-level resource management

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Federal Register / Vol. 71, No. 2 / Wednesday, January 4, 2006 / Proposed Rules 309

decisions. The revised plan may Civil Justice Reform regulations in effect before November 9,
designate major rights-of-way corridors This proposed rule has been reviewed 2000.
for utility transmission lines, pipelines, under Executive Order 12988, Civil * * * * *
and water canals. The effects of such Justice Reform. The agency has not Dated: December 16, 2005.
designations on energy supply, identified any State or local laws or Dale N. Bosworth,
distribution, or use will be considered at regulations that are in conflict with this
the time such designations are Chief, USDA Forest Service.
regulation or that would impede full [FR Doc. E5–8245 Filed 1–3–06; 8:45 am]
proposed. implementation of this rule.
BILLING CODE 3410–11–P
Controlling Paperwork Burdens on the Nevertheless, in the event that such a
Public conflict was identified, the proposed
rule, if implemented, would preempt
This proposed rule does not contain the State or local laws or regulations CHEMICAL SAFETY AND HAZARD
any additional record keeping or found to be in conflict. However, in that INVESTIGATION BOARD
reporting requirements or other case, (1) no retroactive effect would be 40 CFR Part 1604
information collection requirements as given to this proposed rule; and (2) the
defined in 5 CFR part 1320 that are not Department would not require the Accident Investigation Initiation Notice
already required by law or not already parties to use administrative and Order To Preserve Evidence
approved for use and, therefore, proceedings before parties may file suit
imposes no additional paperwork in court challenging its provisions. AGENCY: Chemical Safety and Hazard
burden on the public. Accordingly, the Investigation Board.
Unfunded Mandates ACTION: Proposed rule.
review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C. SUMMARY: The Chemical Safety and
et seq.) and its implementing
1531–1538), which the President signed Hazard Investigation Board (CSB)
regulations at 5 CFR part 1320 do not
into law on March 22, 1995, the agency proposes the adoption of the following
apply.
has assessed the effects of this proposed regulation that is intended to notify the
Federalism rule on State, local, and Tribal owner and/or operator of a facility that
governments and the private sector. suffers an accidental release as defined
The agency has considered this by the Clean Air Act Amendments of
This rule does not compel the
proposed rule under the requirements of 1990, (also referred to here as a
expenditure of $100 million or more by
Executive Order 13132, Federalism. The chemical ‘‘accident’’ or ‘‘incident’’), that
any State, local, or Tribal governments
agency has made a preliminary the CSB intends to deploy investigators
or anyone in the private sector.
assessment that the rule conforms with to its facility, and that relevant evidence
Therefore, a statement under section
the federalism principles set out in this must be preserved. Under this
202 of the act is not required.
Executive orders; would not impose any regulation, site control would remain
compliance costs on the States; and List of Subjects in 36 CFR Part 219 the responsibility of the owner and/or
would not have substantial direct effects Administrative practice and operator of the affected facility.
on the States, on the relationship procedure, Environmental impact However, owners/operators are required
between the national government and statements, Indians, Intergovernmental by this regulation to exercise care to
the States, or on the distribution of relations, Forest and forest products, ensure that the accident scene and
power and responsibilities among the National forests, Natural resources, relevant evidence found therein is
various levels of government. Based on Reporting and recordkeeping adequately protected from alteration.
comments received on this proposed requirements, Science and technology. DATES: Written comments must be
rule, the agency will determine if any Therefore, for the reasons set forth in received on or before February 3, 2005.
additional consultation will be needed the preamble, the Forest Service ADDRESSES: You may submit written
with State and local governments prior proposes to amend subpart A of part 219 comments concerning this proposed
to adopting a final rule. of title 36 of the Code of Federal rule, by the following method:
Consultation With Tribal Governments Regulations as follows: • Mail/Express delivery service:
Chemical Safety and Hazard
This proposed rule does not have PART 219—PLANNING Investigation Board, Office of General
tribal implications as defined in Counsel, Attn: Christopher Warner,
Executive Order 13175, Consultation Subpart A—National Forest System 2175 K Street, NW., Suite 650,
and Coordination with Indian Tribal Land Management Planning Washington, DC 20037.
Governments, and, therefore, advance 1. The authority citation for subpart A FOR FURTHER INFORMATION CONTACT:
consultation with tribes is not required. continues to read as follows: Christopher Warner, 202–261–7600.
No Takings Implications Authority: 5 U.S.C. 301; 16 U.S.C. 1604, SUPPLEMENTARY INFORMATION: Preserving
1613. physical evidence at an accident scene
This proposed rule has been analyzed 2. Amend § 219.14 by revising is an important component in all
in accordance with the principles and paragraph (d)(1) to read as follows: manner of investigations. In a chemical
criteria contained in Executive Order accident investigation, securing an
12630, and it has been determined that § 219.14 Effective dates and transition. accident scene and preserving the
the rule does not pose the risk of a * * * * * integrity of the evidence contained
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taking of private property. This (d)(1) Plan development and plan therein is critical, especially where
proposed rule only allows the Tongass revisions initiated after January 5, 2005 significant explosions or fires have
National Forest to use either the existing must conform to the requirements of destroyed some or much of the relevant
planning regulations or the regulations this subpart, except that the plan for the physical evidence at the accident site.
in effect before November 9, 2000 for its Tongass National Forest may be revised According to one good-practice
next plan revision. once under this subpart or the planning guideline on chemical accident

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