[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Notices]
[Pages 20697-20700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10319]
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DEPARTMENT OF ENERGY
Western Area Power Administration
Post-2010 Resource Pool, Pick-Sloan Missouri Basin Program--
Eastern Division
AGENCY: Western Area Power Administration, DOE.
ACTION: Notice of Final Procedures.
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SUMMARY: Western Area Power Administration (Western), Upper Great
Plains Region, a Federal power marketing agency of the Department of
[[Page 20698]]
Energy (DOE), hereby announces its Post-2010 Resource Pool Allocation
Procedures. The Energy Planning and Management Program (Program)
provides for establishing project-specific resource pools and
allocating power from these pools to new preference customers and other
appropriate purposes as determined by Western. Western, in accordance
with the Program, is finalizing procedures to administer a Federal
power resource pool increment of up to 1 percent (approximately 20
megawatts) of the long-term marketable resource of the Pick-Sloan
Missouri Basin Program--Eastern Division (P-SMBP--ED) that will become
available January 1, 2011 (Post-2010 Resource Pool). Western proposed
procedures in the Federal Register on October 15, 2008 (73 FR 61109),
and responses to public comments received pertaining to the proposed
procedures are included in this notice. Western will publish a notice
of proposed allocations in the Federal Register after the effective
date of this notice.
DATES: The Post-2010 Resource Pool Allocation Procedures will become
effective June 4, 2009.
ADDRESSES: Information regarding the Post-2010 Resource Pool Allocation
Procedures, including comments, letters, and other supporting documents
made or kept by Western for the purpose of developing the final
procedures, are available for public inspection and copying at the
Upper Great Plains Region, Western Area Power Administration, 2900 4th
Avenue North, Billings, MT 59101-1266. Public comments are available
for viewing at: http://www.wapa.gov/ugp/Post2010/Post2010CmtLtr.htm.
SUPPLEMENTARY INFORMATION: Western published the Final Rule for the
Program (Final Rule) on October 20, 1995 (60 FR 54151). The Final Rule
became effective on November 20, 1995. Subpart C-Power Marketing
Initiative of the Program, Final Rule, 10 CFR part 905, provides for
project-specific resource pools and allocations of power from these
pools to eligible new preference customers and/or for other appropriate
purposes as determined by Western. The additional resource pool
increments shall be established by pro rata withdrawals, on 2 years'
notice, from existing customers. Specifically, 10 CFR 905.32(b)
provides:
At two 5-year intervals after the effective date of the
extension to existing customers, Western shall create a project-
specific resource pool increment of up to an additional 1 percent of
the long-term marketable resource under contract at the time. The
size of the additional resource pool increment shall be determined
by Western based on consideration of the actual fair-share needs of
eligible new customers and other appropriate purposes.
Western held a public information and comment forum on November 20,
2008, to accept oral and written comments on the proposed procedures
and call for applications. The formal comment period ended January 13,
2009. The Post-2010 Resource Pool Allocation Procedures in this Federal
Register notice explain in detail how Western intends to implement
Subpart C-Power Marketing Initiative of the Energy Planning and
Management Program Final Rule in the P-SMBP--ED.
Response to Comments Regarding Post-2010 Resource Pool Allocation
Procedures
Comments and Responses
Comment: Western received a comment stating that it should stay
consistent with prior marketing initiatives and with the rules and
regulations of the Program. The comment expressed concern that Western
has been inconsistent in regard to whether Western allocates power
based on an entity already having a Federal power commitment versus the
entity already having an allocation of firm power from Western.
Response: Western agrees with the importance of acting consistently
and in accordance with the P-SMBP--ED Final Post 1985 Marketing Plan
(45 FR 71860, October 30, 1980) (Post-1985 Marketing Plan), the
Program, and the Post-2000 and Post-2005 Marketing Initiatives. In
response to public comments and to stay consistent with the Post-1985
Marketing Plan and the intent of the Program, General Eligibility
Criterion C was clarified in the Notice of Final Procedures Federal
Register (68 FR 67414, December 2, 2003), for the Post-2005 Resource
Pool by adding ``or other firm Federal power commitment.'' New Western
customers from the Post-2000 and Post-2005 Resource Pools were
allocated power consistent with this clarification.
Comment: Western received a comment urging Western to consider
giving allocations to cooperatives a higher priority than other
applicants under the Post-2010 Resource Pool.
Response: The preference clause provides for public entities to be
given preference over private entities in the marketing of Federal
power. There are no preference entity applicants with a higher priority
than another. Western will not provide a higher priority to one
preference entity applicant over another in the Final Post-2010
Resource Pool Allocation Procedures.
Comment: Western received comments in support of an entity's
application for power under the Post-2010 Resource Pool.
Response: All applications received by Western for an allocation of
power from the Post-2010 Resource Pool will be considered in accordance
with the Final Post-2010 Resource Pool Allocation Procedures.
Comment: Western received a comment that Criterion D of the General
Eligibility Criteria does not accurately describe the prohibition of
resale by a non-utility or a utility to a non-member per Western's
General Power Contract Provisions. Resale by a non-utility or a utility
to a non-member would be a violation of Western's General Power
Contract Provisions; however Western does permit the sale of firm power
to a utility's member systems in recognizing the structure of joint
action agencies and rural electric generation and transmission
cooperatives.
Response: Criterion D is one of several criteria intended for the
purpose of determining general eligibility of the applicant and is not
intended to fully describe resale. Western agrees that the prohibition
of resale, by a non-utility or utility, is addressed in Western's
General Power Contract Provisions which are required under the General
Contract Principles, Principle E.
Comment: Western received a comment that contract provisions for
new Post-2010 Resource Pool firm power customers should be identical to
the terms and conditions of existing firm power customers and in
considering applications and making new allocations, Western must act
within existing laws and regulations. Also, if withdrawals are made for
future resource pools, reductions should be applied to all firm power
contract holders.
Response: Western agrees that any new allocation made from the
Post-2010 Resource Pool must comply with existing laws, regulations,
and guidelines, as well as contract terms and conditions applied to
allocations made in previous marketing initiatives under the Program.
There are no future resource pools for the Program in the P-SMBP--ED.
Withdrawals for future resource pools are outside the scope of this
process.
Comment: Western received a comment that in no event should Western
use ``appropriate purposes'' to attempt to legislate new policy
regarding eligibility requirements for receiving firm power
allocations.
[[Page 20699]]
Response: Western is not proposing to use a share of the Post-2010
Resource Pool for other appropriate purposes.
Comment: Western received several comments pertaining to Western
granting exceptions or waivers to various General Eligibility Criteria
for individual applicants.
Response: If Western were to consider individual exceptions or
waivers to the Post-2010 Allocation Procedures, all entities would need
to be afforded the opportunity to submit new applications. Western
would expect to receive many new applications with significant requests
for granting individual waivers or exceptions. This process would
undermine Program consistency, and may not be supportable by existing
laws and regulations or the power available in the Post-2010 Resource
Pool. Western will not grant exceptions or waivers to the Final Post-
2010 Resource Pool Allocation Procedures in determining which entities
are eligible for an allocation of power.
Final Post-2010 Resource Pool Allocation Procedures
I. Amount of Pool Resources
Western will allocate up to 1 percent (approximately 20 megawatts)
of the P-SMBP--ED long-term firm hydroelectric resource available as of
January 1, 2011, as firm power to eligible new preference customers.
Firm power means capacity and associated energy allocated by Western
and subject to the terms and conditions specified in the Western
electric service contract.
II. General Eligibility Criteria
Western will apply the following General Eligibility Criteria to
applicants seeking an allocation of firm power under the Post-2010
Resource Pool Allocation Procedures.
A. All qualified applicants must be preference entities as defined
by section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C.
485h(c)), as amended and supplemented.
B. All qualified applicants must be located within the currently
established P-SMBP--ED marketing area.
C. All qualified applicants must not be currently receiving
benefits, directly or indirectly, from a current P-SMBP--ED firm power
allocation or other firm Federal power commitment. Qualified Native
American applicants, who did not receive an allocation from the Post-
2000 or Post-2005 Resource Pools, are not subject to this requirement.
D. Qualified utility and non-utility applicants must be able to use
the firm power directly or be able to sell it directly to retail
customers.
E. Qualified utility applicants that desire to purchase power from
Western for resale to consumers, including cooperatives,
municipalities, public utility districts, and public power districts
must have met utility status by January 1, 2008. Utility status means
the entity has responsibility to meet load growth, has a distribution
system, and is ready, willing, and able to purchase Federal power from
Western on a wholesale basis.
F. Qualified Native American applicants must be an Indian tribe as
defined in the Indian Self Determination Act of 1975, 25 U.S.C. 450b,
as amended.
III. General Allocation Criteria
Western will apply the following General Allocation Criteria to
applicants seeking an allocation of firm power under the Post-2010
Resource Pool Allocation Procedures.
A. Allocations of firm power will be made in amounts as determined
solely by Western in exercise of its discretion under Federal
Reclamation Law.
B. An allottee will have the right to purchase such firm power only
upon executing an electric service contract between Western and the
allottee, and satisfying all conditions in that contract.
C. Firm power allocated under these procedures will be available
only to new preference customers in the existing P-SMBP--ED marketing
area. The marketing area of the P-SMBP--ED is Montana (east of the
Continental Divide), all of North Dakota and South Dakota, Nebraska
east of the 101[deg] meridian, Iowa west of the 94\1/2\[deg] meridian,
and Minnesota west of a line on the 94\1/2\[deg] meridian from the
southern boundary of the state to the 46[deg] parallel and then
northwesterly to the northern boundary of the state at the 96\1/2\[deg]
meridian.
D. Allocations made to Native American tribes will be based on the
actual load experienced in calendar year 2007. Western has the right to
use estimated load values for calendar year 2007 should actual load
data not be available. Western will adjust inconsistent estimates
during the allocation process.
E. Allocations made to qualified utility and non-utility applicants
will be based on the actual loads experienced in calendar year 2007.
Western will apply the Post-1985 Marketing Plan and the Program
criteria to these loads. Western will carry forward key principles and
criteria established in the Post-2000 and Post-2005 Resource Pools,
except as modified herein.
F. Energy provided with firm power will be based upon the
customer's monthly system load pattern.
G. Any electric service contract offered to a new customer shall be
executed by the customer within 6 months of a contract offer by
Western, unless otherwise agreed to in writing by Western.
H. The resource pool will be dissolved subsequent to the closing
date of the last qualified applicant to execute their respective firm
electric service contract. Firm power not under contract will be used
in accordance with the Program.
I. The minimum allocation shall be 100 kilowatts (kW).
J. The maximum allocation for qualified utility and non-utility
applicants shall be 5,000 kW.
K. Contract rates of delivery shall be subject to adjustment in the
future as provided for in the Program.
L. If unanticipated obstacles to the delivery of hydropower
benefits to Native American tribes arise, Western retains the right to
provide the economic benefits of its resources directly to these
tribes.
IV. General Contract Principles
Western will apply the following General Contract Principles to all
applicants receiving an allocation of firm power under the Post-2010
Resource Pool Allocation Procedures.
A. Western shall reserve the right to reduce a customer's summer
season contract rate of delivery by up to 5 percent for new project
pumping requirements, by giving a minimum of 5 years' written notice in
advance of such action.
B. Western, at its discretion and sole determination, reserves the
right to adjust the contract rate of delivery on 5 years' written
notice in response to changes in hydrology and river operations. Any
such adjustments shall only take place after a public process by
Western.
C. Each allottee is ultimately responsible for obtaining its own
third-party delivery arrangements, if necessary. Western may assist the
allottee in obtaining third-party transmission arrangements for the
delivery of firm power allocated under these procedures to new
customers.
D. Contracts entered into under the Post-2010 Resource Pool
Allocation Procedures shall provide for Western to furnish firm
electric service effective from January 1, 2011, through December 31,
2020.
E. Contracts entered into as a result of these procedures shall
incorporate Western's standard provisions for power
[[Page 20700]]
sales contracts, integrated resource planning, and the General Power
Contract Provisions.
Post-2010 Resource Pool Procedures Requirements
Environmental Compliance
Western completed an Environmental Impact Statement on the Program
(DOE/EIS-0812), pursuant to the National Environmental Policy Act of
1969, 42 U.S.C. 4321-4347 (2007), as amended and supplemented, (NEPA).
The Record of Decision was published in the Federal Register on October
12, 1995 (60 FR 53181). Western's NEPA review assured all environmental
effects related to these actions have been analyzed.
Dated: April 28, 2009.
Timothy J. Meeks,
Administrator.
[FR Doc. E9-10319 Filed 5-4-09; 8:45 am]
BILLING CODE 6450-01-P