13442 Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Rules and Regulations 

1Westar Energy Inc., Docket No. RM87–3–000 

(Apr. 8, 2004) (unpublished letter order), reh’g 

denied sub nom. Revision of Annual Charges to 

Public Utilities (Westar Energy, Inc. and Kansas Gas 

and Electric Company), 111 FERC ¶ 61,086 (2005), 

remanded sub nom. Westar Energy, Inc. v. FERC, 

473 F.3d 1239 (D.C. Cir. 2007). 

2 18 CFR 382.201 (2006). 

3Revision of Annual Charges to Public Utilities, 

Order No. 641, FERC Stats. & Regs. ¶ 31,109 (2000), 

reh’g denied, Order No. 641–A, 94 FERC ¶ 61,290 

(2001). 

Note 2: Special Post Shipment Verification 

reporting and recordkeeping requirements for 

exports of computers to destinations in 

Computer Tier 3 may be found in § 743.2 of 

the EAR. 

License Exceptions 

LVS: $5000; N/A for 4A003.b and .c. 

GBS: Yes, for 4A003.e, and .g and 

specially designed components therefor, 

exported separately or as part of a 

system. 

APP: Yes, for computers controlled by 

4A003.a or .b, and ‘‘electronic 

assemblies’’ controlled by 4A003.c, to 

the exclusion of other technical 

parameters, with the exception of 

4A003.e (equipment performing analogto-digital conversions exceeding the 

limits of 3A001.a.5.a). See § 740.7 of the 

EAR. 

CIV: Yes, for 4A003.e, and .g. 

* * * * * 

■ 7. In Supplement No. 1 to part 774 

(the Commerce Control List), Category 

4—Computers, Export Control 

Classification Number (ECCN) 4D001 is 

amended by revising the Heading, the 

License Requirements section, and the 

License Exceptions section, to read as 

follows: 

4D001 Specified ‘‘software’’, see List 

of Items Controlled. 

License Requirements 

Reason for Control: NS, CC, AT, NP. 

Control(s) Country chart 

NS applies to entire entry .. NS Column 1. 

CC applies to ‘‘software’’

for computerized fingerprint equipment controlled by 4A003 for CC 

reasons.

CC Column 1. 

AT applies to entire entry .. AT Column 1. 

NP applies, unless a License 

Exception is available. See § 742.3(b) of 

the EAR for information on applicable 

licensing review policies. 

License Exceptions 

CIV: N/A 

TSR: Yes, for ‘‘software’’ described in 

4D001.b with an ‘‘Adjusted Peak 

Performance’’ (‘‘APP’’) equal to or less 

than 0.1 WT. 

APP: Yes to specific countries (see 

§ 740.7 of the EAR for eligibility criteria) 

* * * * * 

■ 8. In Supplement No. 1 to part 774 

(the Commerce Control List), Category 

4—Computers, Export Control 

Classification Number (ECCN) 4E001 is 

amended by revising the Heading, the 

License Requirements section, and the 

License Exceptions section, to read as 

follows: 

4E001 Specified ‘‘technology’’, see List 

of Items Controlled. 

License Requirements 

Reason for Control: NS, MT, CC, AT, 

NP. 

Control(s) Country chart 

NS applies to entire entry .. NS Column 1. 

MT applies to ‘‘technology’’

for items controlled by 

4A001.a and 4A101 for 

MT reasons.

MT Column 1. 

CC applies to ‘‘technology’’

for computerized fingerprint equipment controlled by 4A003 for CC 

reasons.

CC Column 1. 

AT applies to entire entry .. AT Column 1. 

NP applies, unless a License 

Exception is available. See § 742.3(b) of 

the EAR for information on applicable 

licensing review policies. 

License Requirement Notes: See 

§ 743.1 of the EAR for reporting 

requirements for exports under License 

Exceptions. 

License Exceptions 

CIV: N/A 

TSR: Yes, for ‘‘technology’’ described 

in 4E001.b with an ‘‘Adjusted Peak 

Performance’’ (‘‘APP’’) equal to or less 

than 0.1 WT. 

APP: Yes to specific countries (see 

§ 740.7 of the EAR for eligibility 

criteria). 

* * * * * 

Eileen M. Albanese, 

Director, Office of Exporter Services. 

[FR Doc. E7–5271 Filed 3–21–07; 8:45 am] 

BILLING CODE 3510–33–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 382 

[Docket No. RM00–7–012] 

Revision of Annual Charges to Public 

Utilities (Westar Energy, Inc. and 

Kansas Gas and Electric Company) 

Issued March 15, 2007. 

AGENCY: Federal Energy Regulatory 

Commission, DOE. 

ACTION: Final rule; order on remand and 

announcement of policy. 

SUMMARY: In this order, the Federal 

Energy Regulatory Commission 

(Commission) addresses issues raised by 

the United States Court of Appeals for 

the District of Columbia Circuit (D.C. 

Circuit) on remand in Westar Energy 

Inc., Docket No. RM87–3–000. The 

Commission here affirms its regulation 

at 18 CFR 382.201 (2006), adopted in 

Order No. 641, allowing correction of 

transmission volumes, but in response 

to the remand allows Westar Energy, 

Inc. to submit corrected transmission 

volumes out-of-time. 

The Commission clarifies going 

forward that it will accept timely FERC 

Reporting Requirement No. 582 (FERC 

582) corrections but will accept only 

those late-filed FERC 582 corrections 

that are discovered through a 

Commission-conducted audit and that 

correct previously under-reported 

transmission volumes. When a public 

utility underreports, it is assessed 

comparatively smaller annual charges, 

and other public utilities are assessed 

relatively larger annual charges thereby 

subsidizing those utilities who 

underreport. 

DATES: Effective Date: This order on 

remand is effective March 15, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Rinker, Office of the General 

Counsel—Energy Markets, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 20426, 

(202) 502–6563. 

SUPPLEMENTARY INFORMATION: Before 

Commissioners: Joseph T. Kelliher, 

Chairman; Suedeen G. Kelly, Marc 

Spitzer, Philip D. Moeller, and Jon 

Wellinghoff. 

Order on Remand and Announcing 

Policy on Submission of Corrected 

Electric Annual Charge-Related Data 

1. This order addresses issues raised 

by the United States Court of Appeals 

for the District of Columbia Circuit (D.C. 

Circuit) on remand.1 The Commission 

here affirms its regulation allowing 

correction of transmission volumes,2

adopted in Order No. 641,3 but in 

response to the remand allows Westar 

Energy, Inc. (Westar) to submit 

corrected transmission volumes out-oftime. The Commission clarifies going 

forward that it will accept timely FERC 

Reporting Requirement No. 582 (FERC 

582) corrections but will accept only 

those late-filed FERC 582 corrections 

that are discovered through a 


rmajette on PROD1PC67 with RULES
Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Rules and Regulations 13443 

4When a public utility underreports, it is 

assessed comparatively smaller annual charges, and 

other public utilities are assessed relatively larger 

annual charges. The effect is that the 

underreporting utility pays less than its fair share 

of the Commission’s costs, and is effectively 

subsidized by other utilities who will pay more 

than their fair share of the Commission’s costs. 

5 42 U.S.C. 7178 (2000). 

6 18 CFR 382.201 (2006). 

7 18 CFR 382.201 (2006); see, e.g., Order No. 641, 

FERC Stats. & Regs. ¶ 31,109 at 31,841–42; accord 

Annual Charges under the Omnibus Budget 

Reconciliation Act of 1986 (CNG Power Services), 

87 FERC ¶ 61,074 at 61,302 (1999) (CNG); Annual 

Charges Under the Omnibus Budget Reconciliation 

Act of 1986 (Phibro Inc.), 81 FERC ¶ 61,308 at 

62,424–25 (1997). 

8 18 CFR 382.201 (2006). 

9See, e.g., Order No. 641, FERC Stats. & Regs. 

¶ 31,109 at 31,848–20; Order No. 641–A, 94 FERC 

at 62,037. 

10 18 CFR 382.201(c)(2) (2006). 

11See Order No. 641, FERC Stats & Regs. ¶ 31,109 

at 31,857; Revision of Annual Charges to Public 

Utilities (California Independent System Operator, 

Inc.), 101 FERC ¶ 61,043 at 61,163, reh’g dismissed, 

101 FERC ¶ 61,326 at P 9 (2002) (CAISO); accord 

CNG, 87 FERC at 61,303. 

12Kansas City Power & Light, Docket No. FA03–

17–000 (August 14, 2003). 

13 111 FERC ¶ 61,086 at P 10–12. 

14 473 F.3d. at 1243. 

15 18 CFR 382.201(c)(2) (2006). 

Commission-conducted audit and that 

correct previously under-reported 

transmission volumes.4

Background 

2. As required by Section 3401 of the 

Omnibus Budget Reconciliation Act of 

1986,5 the Commission’s regulations 

provide for the payment of annual 

charges by public utilities.6 The 

Commission intends that its electric 

annual charges in any fiscal year will 

recover the Commission’s estimated 

electric regulatory program costs (other 

than the costs of regulating Federal 

Power Marketing Agencies (PMAs) and 

electric regulatory program costs 

recovered through electric filing fees) 

for that fiscal year. In the next fiscal 

year the Commission adjusts the annual 

charges up or down, as appropriate, 

both to eliminate any over-or underrecovery of the Commission’s actual 

costs and to eliminate any over-or 

under-charge of any particular public 

utility. The Commission accomplishes 

this by recalculating the annual charges 

and carrying over any over-or undercharge from the prior year as a credit or 

debit on the next fiscal year’s annual 

charges bill.7

3. In calculating annual charges, the 

Commission determines its total electric 

regulatory program costs and subtracts 

all PMA-related costs and electric filing 

fee collections to determine its 

collectible electric regulatory program 

costs. That amount is charged to public 

utilities that provide transmission 

service. Public utilities that provide 

transmission service and thus are 

subject to annual charges must submit 

FERC 582 to the Office of the Secretary 

by April 30 of each year, providing data 

for the previous calendar year.8 The 

reports include their transmission of 

electric energy in interstate commerce, 

as measured by: (1) Unbundled 

wholesale transmission; (2) unbundled 

retail transmission; and (3) bundled 

wholesale power sales which, by 

definition, include a transmission 

component, where the transmission 

component is not separately reported as 

unbundled transmission. 

4. Importantly, the Commission uses 

that data to allocate its collectible 

electric regulatory program costs among 

all public utilities that provide 

transmission service; changing the 

amount owed by one public utility has 

an effect on the amount owed by all of 

the others. The Commission issues bills 

for annual charges based on each public 

utility’s transmission service (as 

reported in the FERC 582) as compared 

to the total of all public utilities’

transmission service, and the bills must 

be paid within 45 days of the date on 

which the Commission issues the bills.9

The regulations allow public utilities to 

make corrections to their previously 

filed FERC 582s, but they must do so 

within a specified time: 

Corrections to the information reported on 

[FERC] 582, as of January 1, 2002, must be 

submitted under oath to the Office of the 

Secretary on or before the end of each 

calendar year in which the information was 

originally reported (i.e., on or before the last 

day of the year that the Commission is open 

to accept such filings).10

The Commission adjusts the annual 

charges in the following fiscal year (FY), 

using this corrected information, in 

order to eliminate any over or under 

recovery both of the Commission’s 

actual costs and of the charges to each 

public utility.11

Earlier Filings and Orders 

5. On December 18, 2003, Westar 

submitted a corrected FERC 582 for both 

2002 and 2003, correcting the data 

reported for the years 2001 and 2002, 

respectively. Westar explained that its 

internal review, prompted by a change 

in the Commission’s reporting 

requirements, revealed that it had overreported transmission in several 

particulars. Westar requested a waiver 

of the Commission’s regulations, 

observing that the Commission had 

permitted another company, Kansas 

City Power and Light Company (KCPL), 

to file a correction for calendar year 

2001 in 2003.12

6. By letter order dated April 8, 2004, 

the Director of the Commission’s 

Division of Financial Services, Office of 

the Executive Director, accepted 

Westar’s corrections for FY 2003 

(reporting corrected calendar year 2002 

transmission data), but rejected Westar’s 

proposed corrections for FY 2002 

(reporting corrected calendar year 2001 

transmission data) on the ground that it 

was untimely under section 

382.201(c)(2) of the Commission’s 

regulations. On May 7, 2004, Westar 

sought rehearing. 

7. The Commission subsequently 

denied rehearing for four reasons: first, 

the Commission’s regulations expressly 

provided that corrections be made by 

the end of the calendar year in which 

the information was originally filed; 

second, the broader interest in 

preserving the finality of annual charges 

weighed against Westar’s individual 

interest in allowing an untimely 

correction; third, the Commission had 

offered no assurances that it would 

correct erroneously filed information 

beyond the deadline for filing corrected 

information expressly spelled out in the 

regulations; and fourth, Westar and 

KCPL were not similarly situated 

because the Commission itself caused 

KCPL’s late filing and it would, 

therefore, have been inequitable to reject 

KCPL’s out-of-time corrections to the 

detriment of the company.13

8. Westar filed a petition for review 

with the D.C. Circuit, and on January 16, 

2007, the D.C. Circuit vacated and 

remanded the Commission’s not 

allowing Westar’s corrected FERC 582 

for FY 2002, finding the Commission’s 

order provided no basis ‘‘in fact or in 

logic for the Commission’s refusal to 

treat Westar as it had treated KCPL.’’ 14

Discussion 

9. In light of the D.C. Circuit’s finding, 

and to bring this matter to an 

expeditious conclusion, the 

Commission will allow Westar to 

submit the corrected FY 2002 

transmission volumes that the 

Commission had previously rejected 

because they had been filed out-of-time. 

10. The Commission does, however, 

reiterate its continued commitment to 

the policy reflected in part 382 of the 

Commission’s regulations, namely that 

corrected transmission volumes must be 

filed by the end of the calendar year in 

which the transmission volumes were 

originally filed. This is what the 

Commission’s regulations require.15 The 

court found, while vacating and 

remanding the Commission’s 

determination as to Westar, that the first 

three of the Commission’s four reasons 


rmajette on PROD1PC67 with RULES
13444 Federal Register / Vol. 72, No. 55 / Thursday, March 22, 2007 / Rules and Regulations 

16 473 F.3d. at 1241–42. As noted above, it was 

the Commission’s failure to adequately explain the 

fourth reason that led to the remand. 17As we have noted, the transmission volumes 

utilities report are the utilities’ data. These data are, 

moreover, filed under oath. 18 CFR 382.201(c)(1) 

(2006); see Revision of Annual Charges to Public 

Utilities (PJM Interconnection), 105 FERC ¶ 61,093 

at P 8 (2003); Midwest Independent Transmission 

System Operator, Inc., 103 FERC ¶ 61,048 at P 13–

14, reh’g denied, 104 FERC ¶ 61,060 (2003); CAISO, 

101 FERC ¶ 61,326 at P 9; CAISO, 101 FERC 

¶ 61,043 at P 10. While utilities are thus required 

to report complete and accurate data (by April 30 

of each year), we nevertheless recognize that 

utilities may err in their reporting, and so we allow 

corrections to be filed up to eight months following 

their original filing, i.e., by the end of the calendar 

year. 

18Pennsylvania Elec. Co. v. FERC, 11 F.3d 207, 

211 n.5 (D.C. Cir. 1993); Nat’l Fuel Gas Supply 

Corp. v. FERC, 468 F.3d 831, 834–835 (D.C. Cir. 

2006); United Distribution Cos. v. FERC, 88 F.3d 

1105, 1122 & n.4 (D.C. Cir. 1996); Associated Gas 

Distribs. v. FERC, 824 F.2d 981, 1010 (D.C. Cir. 

1987). 

19 If the Commission finds that the underreporting 

was intentional, it may seek to invoke its civil 

penalty authority as well. 

for denying Westar’s request both alone 

and together justify this policy: (1) The 

regulations expressly required filing of 

corrections by a date certain; (2) waiving 

the deadline would undermine the 

certainty that the annual charges would 

not be indefinitely subject to change; 

and (3) the Commission has never 

suggested it would ignore the deadline 

spelled out in its regulations.16

11. We also announce a policy, going 

forward, as to when we will waive the 

regulation and allow untimely 

submissions. The Commission’s policy 

going forward will be to grant waiver 

and accept only those late-filed 

corrections discovered through a 

Commission-conducted audit in order to 

remedy an underreporting of 

transmission volumes (and thus where 

other utilities have subsidized the 

underreporting utility). 

12. As stated above, the Commission 

allocates its collectible electric 

regulatory program costs among public 

utilities. A reduction in the amount 

owed by one utility necessarily has an 

effect, an increase, on the amount owed 

by all of the others. Therefore, if a utility 

does not accurately report its 

transmission volumes, the Commission 

cannot charge it appropriately.17 The 

allocation of costs based on 

transmission volumes creates a natural 

incentive for utilities to underreport 

their transmission volumes in a given 

year. Just as public utilities have a 

natural incentive to ‘‘abuse their market 

power,’’ 18 so, by analogy, public 

utilities subject to reporting 

transmission volumes for purposes of 

calculating their proportionate share of 

the Commission’s collectible electric 

regulatory program costs have similar 

incentives to underreport their 

transmission volumes and thereby 

reduce the costs allocated to them. The 

effect of such underreporting is an 

inequitable subsidization by other 

utilities of any utility that 

underreported. The agency’s audit 

process provides a check on that natural 

incentive. Therefore, the Commission 

will allow late-filed corrections 

resulting from an audit revealing that a 

utility has underreported its 

transmission volumes and consequently 

forced other utilities to bear costs that 

should have been borne by the 

underreporting utility. The Commission 

thus retains its ability to make right the 

situation where the remainder of the 

industry has paid amounts which 

rightfully were owed by another.19

13. However, the reverse is not true. 

Overreporting does not raise the same 

concerns as underreporting; if a 

company overreports its transmission 

volumes and fails to file corrections by 

the deadline, it does so to its detriment 

and harms no one but itself. Errors of 

overreporting discovered after the 

deadline, by Commission-conducted 

audit or otherwise, thus may not be 

corrected. The D.C. Circuit 

acknowledged that any one of the first 

three justifications provided by the 

Commission, described above, justify a 

Commission policy of not accepting a 

corrected FERC 582 after the deadline. 

Indeed, the Commission need not have 

structured its regulation to allow 

corrections at all. The data the utilities 

must report is, after all, the utilities’

data, and that data must be filed under 

oath; in other words, full and complete 

reporting at the outset should be the 

norm. The Commission, however, 

elected to build leniency into its 

requirement to submit transmission 

volumes, in the form of an 8-month 

window from the April 30 filing 

deadline to the December 31 corrections 

deadline. That 8-month window 

provides more than sufficient time for 

utilities to identify and correct their 

overreporting. 

The Commission orders: 

(A) The Commission hereby grants 

waiver of the annual charges reporting 

requirement, FERC 582, to allow Westar 

to submit corrected information for FY 

2002 (reporting corrected calendar year 

2001 transmission data). The upcoming 

annual charges will be calculated to 

reflect this corrected information. 

(B) The Secretary is hereby directed to 

publish this order in the Federal 

Register. 

By the Commission. 

Philis J. Posey, 

Acting Secretary. 

[FR Doc. E7–5052 Filed 3–21–07; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[MSN–2006–1; FRL–8290–4] 

New Stationary Sources; Supplemental 

Delegation of Authority to the 

Mississippi Department of 

Environmental Quality 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Delegation of authority. 

SUMMARY: The Mississippi Department 

of Environmental Quality (MSDEQ or 

agency) has requested that EPA delegate 

authority for implementation and 

enforcement of existing New Source 

Performance Standards (NSPS) which 

have been previously adopted by the 

agency but have remained undelegated 

by EPA, and has requested that EPA 

approve the mechanism for delegation 

(adopt-by-reference) of future NSPS. 

The purpose of MSDEQ’s request for 

approval of its delegation mechanism is 

to streamline existing administrative 

procedures by eliminating any 

unnecessary steps involved in the 

Federal delegation process. With this 

NSPS delegation mechanism in place, a 

new or revised NSPS promulgated by 

EPA will become effective in the State 

of Mississippi on the date the NSPS is 

adopted-by-reference pursuant to a 

rulemaking of the MSDEQ, if the agency 

adopts the NSPS without change. 

‘‘Adopt-by-reference’’ means the EPA 

promulgated standard has been adopted 

directly into the State regulations by 

reference to the Federal law. No further 

agency requests for delegation will be 

necessary. Likewise, no further Federal 

Register notices will be published. 

In this action, EPA is delegating 

authority to MSDEQ for implementation 

and enforcement of existing NSPS 

which have been previously adopted by 

MSDEQ and which are identified in the 

Supplementary Information section 

below. In addition, EPA is approving 

MSDEQ’s ‘‘adopt-by-reference’’

mechanism for delegation of future 

NSPS. 

DATES: Effective Date: The effective date 

is March 22, 2007. 

ADDRESSES: Copies of the request for 

delegation of authority are available for 

public inspection during normal 


rmajette on PROD1PC67 with RULES