18572 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 

1 71 FR 58,273 (October 3, 2006), FERC Stats. & 

Regs. ¶ 31,228 (2006). 

2The California Coastal Commission, California 

Energy Commission, California Electricity Oversight 

Board, and California State Lands Commission 

(collectively the California State Agencies) filed a 

request for reconsideration. Although labeled as a 

‘‘Request for Reconsideration,’’ the request is 

actually an untimely request for rehearing. As 

explained below, the Commission has long held 

that it lacks authority to consider requests for 

rehearing filed more than 30 days after issuance of 

a Commission order. 

3 66 FR 52917 (Oct. 18, 2001), 97 FERC ¶ 61,130 

(2001). 

4 68 FR 9857, FERC Stats. & Regs. ¶ 31,140 (Mar. 

3, 2003). 

5 68 FR 46456, FERC Stats. & Regs. ¶ 31,147 (Aug. 

6, 2003) 

6NIP information includes location maps and 

diagrams that do not rise to the level of CEII. Order 

No. 630 provided the following examples of NIP: 

‘‘(1) USGS 7.5 minute topographic maps showing 

the location of pipelines, dams, or other 

aboveground facilities, (2) alignment sheets 

showing the location of pipeline and aboveground 

facilities, right of way dimensions, and extra work 

areas; (3) drawings showing site or project 

boundaries, footprints, building locations and 

reservoir extent; and (4) general location maps.’’ 68 

FR 9857, FERC Stats. & Regs. ¶ 31,140. 

7 71 FR 58,325 (October 3, 2006), FERC Stats. & 

Regs. ¶ 32,607 (2006) (September 21 NOPR). 

Deadline: Days 

from Mar. 15, 2007 

(FR publication) 

Compliance action Final rule 

paragraph No. 

File Under Docket OA07–1; new OA Docket will be assigned. 

Description: Revised Attachment C Filing. 

N/A ........................ After the submission of FPA section 206 compliance filings, transmission providers may submit FPA section 205 filings proposing rates for the services provided for in the tariff, as well as non-rate terms and 

conditions that differ from those set forth in the Final Rule if those provisions are ‘‘consistent with or superior to’’ the pro forma OATT.

¶ 135 

Do not eFile. File according to procedures current at the time of submission for FPA section 205 filings. 

If you are unable to file electronically, 

you must submit original and 5 paper 

copies of the filing to: Kimberly D. Bose, 

Secretary, Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426. 

[FR Doc. E7–7000 Filed 4–12–07; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 388 

[Docket No. RM06–24–001; Order No. 683–

A] 

Critical Energy Infrastructure 

Information 

Issued April 9, 2007. 

AGENCY: Federal Energy Regulatory 

Commission, Department of Energy. 

ACTION: Final Rule, order on rehearing. 

SUMMARY: On September 21, 2006, the 

Commission issued a final rule that 

clarified the definition of Critical Energy 

Infrastructure Information (CEII), 

required requesters of CEII to submit 

executed non-disclosure agreements 

with their requests, and provided that 

the notice and opportunity to comment 

on a CEII request would be combined 

with the notice of release of 

information. The Commission is 

denying the petition for rehearing filed 

by Edison Electric Institute. 

DATES: Effective Date: This order 

denying rehearing of the final rule will 

become effective May 14, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Teresina A. Stasko, Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street, NE., 

Washington, DC 20426, Phone (202) 

502–8317. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Joseph T. Kelliher, 

Chairman; Suedeen G. Kelly, Marc Spitzer, 

Philip D. Moeller, and Jon Wellinghoff. 

Order on Rehearing 

(Issued April 9, 2007) 

1. This order addresses the request for 

rehearing filed by Edison Electric 

Institute (EEI) of the Commission’s 

September 21, 2006 Order in this 

proceeding (September 21 Order), a 

final rule that clarified the definition of 

Critical Energy Infrastructure 

Information (CEII), required requesters 

of CEII to submit executed nondisclosure agreements (NDA) with their 

requests, and provided that the notice 

and opportunity to comment on a CEII 

request would be combined with the 

notice of release of information. Critical 

Energy Infrastructure Information, 

Order No. 683.1 This order denies EEI’s 

request for rehearing for the reasons 

explained below.2

Background 

2. The Commission began its efforts 

with respect to CEII shortly after the 

attacks of September 11, 2001. See 

Statement of Policy on Treatment of 

Previously Public Documents.3 The 

Commission issued a final rule on CEII 

on February 21, 2003, defining CEII to 

include information about proposed 

facilities, as well as facilities already 

licensed or certificated by the 

Commission, and to exclude 

information that simply identified the 

location of the infrastructure. See Order 

No. 630.4 The final rule also established 

the position of CEII Coordinator. The 

Commission issued Order No. 630–A on 

July 23, 2003,5 which made several 

minor procedural changes and 

clarifications, added a reference in the 

regulation regarding the filing of NonInternet Public (NIP) information, a term 

first described in Order No. 630,6 and 

added a commitment to review the 

effectiveness of the new process after six 

months. 

3. Simultaneous with the issuance of 

the September 21 Order, the 

Commission issued a notice of proposed 

rulemaking (NOPR) in Docket No. 

RM06–23–000.7 In the September 21 

NOPR, the Commission sought 

comments on the revisions to its 

regulations to: (1) Allow an annual 

certification for repeat requesters; (2) 

allow an authorized representative of an 

organization to execute an NDA on 

behalf of the organization’s employees; 

(3) include a fee provision; (4) respond 

to CEII requests by letters from the CEII 

Coordinator rather than by Commission 

orders with rights to rehearing; and (5) 

allow landowners access to alignment 

sheets for the routes across or in the 

vicinity of their properties. The 

September 21 NOPR also proposed to 

narrow the scope of information on 

Commission forms that are defined as 

containing CEII and proposed to abolish 

the NIP designation. 

Requests for Rehearing 

4. On October 23, 2006, EEI filed a 

timely request for rehearing of the 

September 21 Order, and requested that 

the Commission revoke its September 

21 Order and reissue it as a new notice 

of proposed rulemaking to be 

considered with the September 21 

NOPR. EEI alleged that the Commission 

did not provide the due process 

protections of the Administrative 


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Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 18573 

8We decline to treat the request for rehearing as 

a request for reconsideration. Granting such a 

request would in effect treat the rehearing request 

as if it had been timely filed. See Midwest 

Independent Transmission System Operator, Inc., 

112 FERC ¶ 61,211 at P 10 (2005); Golden Valley 

Power Company, 114 FERC ¶ 61,212 at P 6 (2006). 

9 18 CFR 385.713 (2006). 

10 18 CFR 385.713(a)(1) (2006). 

11The expiration of the thirty-day period, October 

21, 2006, fell on a Saturday; therefore, the filing 

deadline for requests for rehearing was October 23, 

2006, the next business day. 

12See, e.g., American Postal Workers Union v. 

United States Postal Service, 707 F.2d 548, 559–60 

(D.C. Cir. 1983) (finding that the postal service’s 

new method of calculating retirement benefits was 

interpretive because adoption of the method turned 

on the agency’s understanding of the statutory term 

‘‘average pay’’), cert. denied, 465 U.S. 1100 (1984). 

13See, e.g., General Motors Corp. v. Ruckelshaus, 

742 F.2d 1561, 1565 (D.C. Cir. 1984) (finding 

interpretive a rule that restated consistent agency 

practice based on the Environmental Protection 

Agency’s understanding of the recall provision of 

the Clean Air Act), cert. denied, 471 U.S. 1074 

(1985). 

14American Mining Congress v. Mine Safety & 

Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 

1993). 

15September 21 Order at P 6. 16 Id. 

Procedure Act (APA), 5 U.S.C. 553, 

because the September 21 Order: (1) 

Modified the definition of CEII without 

proper notice and comment; (2) 

combined the notice and opportunity to 

comment with the notice of release; and 

(3) permitted the CEII Coordinator to 

enforce the CEII regulations by rejecting 

applications if information is mislabeled 

or legal justifications for CEII are not 

provided. 

5. On November 2, 2006, the 

California State Agencies filed an 

untimely request for reconsideration. 

The California State Agencies requested 

that the CEII Coordinator allow 

flexibility to allow state agencies to 

execute non-disclosure agreements 

which depart from the standard state 

agency NDA found on the Commission’s 

Web site. The California State Agencies 

further requested that the Commission 

amend its CEII regulations to exclude 

state agencies from the requirement of 

showing a need for access in their CEII 

requests, and to require the CEII 

Coordinator to grant state agencies 

access to CEII upon receiving a 

completed CEII request, including an 

executed NDA in a format acceptable to 

the Commission. 

Discussion 

Procedural Issues 

6. The California State Agencies’

request for reconsideration is equivalent 

to an untimely request for rehearing.8

Rule 713 of the Commission’s Rules of 

Practice and Procedure requires that 

requests for rehearing be made within 

thirty days of the date of the order.9

Rule 713(a)(1) provides that the rule is 

applicable ‘‘to any request for rehearing 

of a final Commission decision or other 

final order.’’10 The final date for filing 

a request for rehearing of the September 

21 Order was October 23, 2006,11 a 

deadline not met by the California State 

Agencies. However, the California State 

Agencies also filed their ‘‘Comments 

and Request for Reconsideration’’ in 

response to the September 21 NOPR. 

Their comments address issues raised in 

the September 21 NOPR and will be 

considered in that proceeding. 

EEI’s Request for Rehearing 

Clarification of the Definition of CEII 

7. EEI’s contention that any 

modification to the definition of CEII is 

substantive is without merit. The APA 

provides exemptions to its notice and 

comment rulemaking requirements. See 

5 U.S.C. 553(b)(A). Specifically, 

interpretative rules, general statements 

of policy, or rules of agency 

organization, procedure, or practice are 

exempt. Id. As the Commission’s 

September 21 Order interprets its 

definition of CEII, it is not a substantive 

change requiring notice and comment. 

The Commission may interpret and 

clarify its regulations without making a 

substantive change. Courts have found 

that agency rules explaining terms in 

statutes and regulations are 

interpretive.12 Courts have also held 

that rules that merely restate existing 

duties, rather than creating new duties, 

are interpretive.13

8. A clarification ‘‘does not * * * 

become an amendment merely because 

it supplies crisper and more detailed 

lines than the authority being 

interpreted.’’14 Previously, the 

regulation stated that ‘‘Critical energy 

infrastructure information means 

information about proposed or existing 

critical infrastructure that: (i) Relates to 

the production, generation, 

transportation, transmission, or 

distribution of energy; (ii) Could be 

useful to a person in planning an attack 

on critical infrastructure; (iii) Is exempt 

from mandatory disclosure under the 

Freedom of Information Act, 5 U.S.C. 

552; and (iv) Does not simply give the 

location of the critical infrastructure.’’

18 CFR 388.113(c)(1). The September 21 

Order explained that ‘‘information about 

proposed or existing critical 

infrastructure’’ means ‘‘specific 

engineering, vulnerability, or detailed 

design information about proposed or 

existing critical infrastructure.’’15 The 

clarification explained the existing term 

‘‘information.’’ The clarification serves 

to advise the public of the Commission’s 

construction of the term information as 

defined in Order No. 630. The 

September 21 Order also clarified the 

meaning of ‘‘relates to the production, 

generation, transportation, transmission, 

or distribution of energy.’’ The 

September 21 Order advised the public 

that it is the ‘‘details about the 

production, generation, transportation, 

transmission, or distribution of energy’’

that the Commission deems CEII.16

These explanations and clarifications 

are merely interpretations and notice 

and comment are unnecessary. 

Combination of the Notice and 

Opportunity to Comment With the 

Notice of Release 

9. EEI is mistaken that the 

combination of the notice and 

opportunity to comment with the notice 

of release eliminates due process rights 

of CEII submitters or reduces the notice 

from ten days to five days. Pursuant to 

18 CFR 388.112, any person submitting 

documents to the Commission may 

request special treatment of some or all 

of the information found in the 

documents. Paragraph (d) of this section 

provides the standards for notifying the 

submitter of a request for the 

information, and states: 

When a FOIA or CEII requester seeks a 

document for which privilege or CEII status 

has been claimed, or when the Commission 

itself is considering release of such 

information, the Commission official who 

will decide whether to release the 

information will notify the person who 

submitted the document and give the person 

an opportunity (at least five calendar days) in 

which to comment in writing on the request. 

A copy of this notice will be sent to the 

requester. 

Paragraph (e) of this section provides 

the standards for notification prior to 

release of documents for which 

privileged treatment was requested, and 

states: 

Notice of a decision by the Director, Office 

of External Affairs, the Chairman of the 

Commission, the General Counsel or General 

Counsel’s designee, a presiding officer in a 

proceeding under part 385 of this chapter, or 

any other appropriate official to deny a claim 

of privilege in whole or in part, or to make 

a limited release of CEII, will be given to any 

person claiming that information is 

privileged or CEII no less than five days 

before public disclosure. The notice will 

briefly explain why the person’s objections to 

disclosure are not sustained by the 

Commission. A copy of this notice will be 

sent to the FOIA or CEII requester. 

Thus, when the submitter of 

information requests confidential or 

CEII treatment of that information and 

opposes its release, the Commission 


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18574 Federal Register / Vol. 72, No. 71 / Friday, April 13, 2007 / Rules and Regulations 

17September 21 NOPR at P 17. 

will, by regulation, notify the submitter 

at least five days prior to disclosure. 

This allows the submitter an 

opportunity to respond, as well as to 

pursue an injunction against release in 

district court. 

10. The Commission’s regulations do 

not require separation of the 

opportunity to comment and notice of 

release. However, it was the 

Commission’s practice in processing 

CEII requests to issue these notifications 

separately. As the Commission 

explained in its September 21 Order, 

combining the two will increase the 

efficiency of processing CEII requests. 

See September 21 Order at P 9–10. But 

those opposing release will continue to 

have ten days of notice before the 

information is released. 

11. Contrary to EEI’s assertion, there 

is no inconsistency in the application of 

the rules to CEII and FOIA requests. The 

combined notice that the Commission 

sends pursuant to the September 21 

Order explains that a submitter has an 

opportunity (5-day minimum) to submit 

timely comments opposing release. See 

18 CFR 388.112(d). It further explains 

that if the submitter provides timely 

comments, he or she will be notified in 

advance of the release of any 

information in accordance with 18 CFR 

388.112(e) (another 5-day minimum). In 

other words, if the submitter provides 

comments, a second notice of release 

follows the first (a total of 10-day 

minimum). In the event timely 

comments opposing release are not 

received, the combined notice 

constitutes notice of release of the 

specified document in accordance with 

18 CFR 388.112(e), subject to an 

appropriate non-disclosure agreement. 

The combined opportunity to comment 

and notice of release does not reduce 

the submitter’s opportunity to respond 

or to pursue judicial relief. 

Requirements To Comply With 

Procedural Requirements 

12. The September 21 Order states 

that an application will be rejected in its 

entirety if information is mislabeled as 

CEII or a legal justification for CEII is 

not provided. The purpose of that rule 

is to dissuade applicants from carelessly 

using the CEII designation because such 

misuse prevents interested parties and 

other deserving members of the public 

from accessing needed information in 

the timeliest manner. As the 

Commission said in the September 21 

NOPR, the ‘‘Commission retains its 

concern for CEII filing abuses and will 

take action against applicants or parties 

who knowingly misfile information as 

CEII.’’ 17 The Commission disagrees 

with EEI’s assertion that rejection is 

unacceptably harsh. Applications are 

frequently rejected for failure to comply 

with procedural requirements. See, e.g., 

ANR Pipeline Co., 103 FERC ¶ 61,261 at 

P 8 (2003) (rejecting filing without 

prejudice to filing a fully supported 

application in accordance with the 

Commission’s regulations). In instances 

in which documents are rejected for 

filing, the rejection is usually without 

prejudice and no substantive rights are 

lost. Id. The application must merely be 

refiled in accordance with the 

procedural requirements. That is not 

harsh, but rather promotes the proper 

use of the CEII designation. 

The Commission orders: 

EEI’s request for rehearing is denied 

as described above. The California State 

Agencies’ request for reconsideration is 

rejected in this docket as untimely filed. 

By the Commission. 

Philis J. Posey, 

Acting Secretary. 

[FR Doc. E7–7005 Filed 4–12–07; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Bureau of Customs and Border 

Protection 

19 CFR Part 123 

Advance Electronic Presentation of 

Cargo Information for Truck Carriers 

Required To Be Transmitted Through 

ACE Truck Manifest at Ports in the 

States of Vermont, North Dakota and 

New Hampshire 

AGENCY: Customs and Border Protection, 

Department of Homeland Security. 

ACTION: Final rule. 

SUMMARY: Pursuant to section 343(a) of 

the Trade Act of 2002 and implementing 

regulations, truck carriers and other 

eligible parties are required to transmit 

advance electronic truck cargo 

information to the Bureau of Customs 

and Border Protection (CBP) through a 

CBP-approved electronic data 

interchange. In a previous document, 

CBP designated the Automated 

Commercial Environment (ACE) Truck 

Manifest System as the approved 

interchange and announced that the 

requirement that advance electronic 

cargo information be transmitted 

through ACE would be phased in by 

groups of ports of entry. This document 

announces that at all land border ports 

in Vermont and New Hampshire and at 

the land border ports in North Dakota in 

which ACE has not yet been required, 

truck carriers will be required to file 

electronic manifests through the ACE 

Truck Manifest System. 

DATES: Trucks entering the United 

States through land border ports of entry 

in the states of Vermont and New 

Hampshire and at the ports of St. John, 

Fortuna, Ambrose, Carbury, Noonan, 

Dunseith, Sherwood, Antler, Northgate, 

Westhope, and Portal in the state of 

North Dakota, will be required to 

transmit the advance information 

through the ACE Truck Manifest system 

effective July 12, 2007. 

FOR FURTHER INFORMATION CONTACT: Mr. 

James Swanson, via e-mail at 

james.d.swanson@dhs.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 343(a) of the Trade Act of 

2002, as amended (the Act; 19 U.S.C. 

2071 note), required that CBP 

promulgate regulations providing for the 

mandatory transmission of electronic 

cargo information by way of a CBPapproved electronic data interchange 

(EDI) system before the cargo is brought 

into or departs the United States by any 

mode of commercial transportation (sea, 

air, rail or truck). The cargo information 

required is that which is reasonably 

necessary to enable high-risk shipments 

to be identified for purposes of ensuring 

cargo safety and security and preventing 

smuggling pursuant to the laws enforced 

and administered by CBP. 

On December 5, 2003, CBP published 

in the Federal Register (68 FR 68140) a 

final rule to effectuate the provisions of 

the Act. In particular, a new section 

123.92 (19 CFR 123.92) was added to 

the regulations to implement the 

inbound truck cargo provisions. Section 

123.92 describes the general 

requirement that, in the case of any 

inbound truck required to report its 

arrival under section 123.1(b), if the 

truck will have commercial cargo 

aboard, CBP must electronically receive 

certain information regarding that cargo 

through a CBP-approved EDI system no 

later than 1 hour prior to the carrier’s 

reaching the first port of arrival in the 

United States. For truck carriers arriving 

with shipments qualified for clearance 

under the FAST (Free and Secure Trade) 

program, section 123.92 provides that 

CBP must electronically receive such 

cargo information through the CBPapproved EDI system no later than 30 

minutes prior to the carrier’s reaching 

the first port of arrival in the United 

States. 


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