[Federal Register Volume 62, Number 47 (Tuesday, March 11, 1997)]
[Notices]
[Pages 11174-11182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5996]
[[Page 11174]]
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DEPARTMENT OF ENERGY
Western Area Power Administration
Final Power Allocations of the Post-2000 Resource Pool--Pick-
Sloan Missouri Basin Program, Eastern Division
AGENCY: Western Area Power Administration, DOE.
ACTION: Notice of final power allocations.
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SUMMARY: Western Area Power Administration (Western), a Federal power
marketing agency of the Department of Energy, hereby announces its
Post-2000 Resource Pool Power Allocations to fulfill the requirements
of Subpart C-Power Marketing Initiative of the Energy Planning and
Management Program Final Rule, 10 CFR Part 905. The Post-2000 Resource
Pool Allocations are Western's implementation of Subpart C-Power
Marketing Initiative of the Energy Planning and Management Program
Final Rule for the Pick-Sloan Missouri Basin Program, Eastern Division.
Western's proposed allocations were initially published in the Federal
Register August 30, 1996, and a clarification and response to comments
was published in the Federal Register December 3, 1996. The formal
comment period on the proposed allocations ended on January 6, 1997,
and a discussion of comments received pertaining to the proposed
allocations is included in this notice. After consideration of all of
the comments, Western has decided to finalize the proposed allocations
to new utility and nonutility customers as announced on August 30,
1996, and to finalize the proposed allocations to Native American
tribes based on the levelized methodology adjusted to address the
relatively small indirect benefits provided to the Rosebud Sioux Tribe
by Rosebud Electric Cooperative.
DATES: The Post 2000 Resource Pool Final Power Allocations, as based on
the Pick-Sloan Missouri Basin Program--Eastern Division marketable
resource at this time, will become effective April 10, 1997, and will
remain in effect until December 31, 2020. Electric service contracts
for the sale of power allocated in this notice will be effective when
signed by both the customer and Western. Allottees will have six months
to execute a contract with Western after the initial offer of a draft
contract, unless otherwise agreed in writing by Western. Contracts
entered into under the Post-2000 Resource Pool Allocation Procedures
shall provide for Western to furnish the benefits of firm electric
service effective from January 1, 2001, through December 31, 2020.
ADDRESSES: Information regarding the Post-2000 Resource Pool
Allocations, including comments, letters, and other supporting
documents made or kept by Western for the purpose of developing the
final allocations, are available for public inspection and copying at
the Upper Great Plains Customer Service Regional Office, Western Area
Power Administration, located at 2900 4th Avenue North, Billings,
Montana 59101.
SUPPLEMENTARY INFORMATION: Western published a notice of proposed
allocations in the Federal Register on August 30, 1996, at 61 FR 45957
to implement Subpart C-Power Marketing Initiative of the Energy
Planning and Management Program Final Rule, 10 CFR part 905. The Energy
Planning and Management Program (Program), which was developed in part
to implement section 114 of the Energy Policy Act of 1992, became
effective on November 20, 1995. Subpart C of the Program provides for
the establishment of project-specific resource pools and the allocation
of power from these pools to new preference customers. Western's final
procedures were published in the Federal Register at 61 FR 41142 on
August 7, 1996. Those procedures, in conjunction with the Pick-Sloan
Missouri Basin Program--Eastern Division, Final Post-1985 Marketing
Plan (Post-1985 Marketing Plan) (45 FR 71860, corrected at 45 FR 77509)
established the framework for allocating power from the resource pool
established for the Pick-Sloan Missouri Basin Program--Eastern Division
(P-SMBP-ED).
Western held public information and comment forums on September 18,
19, and 20, 1996, to accept oral and written comments on the proposed
allocations. On October 8, 1996, Western published in the Federal
Register, at 61 FR 52788, a Notice of Time Extension for the Proposed
Allocation which extended the formal comment period for written
comments from October 7 to October 21, 1996. On December 3, 1996,
Western published in the Federal Register, at 61 FR 64080, a Notice of
Clarification, Response to Comments and Request for Additional Comments
regarding the levelized method of calculating proposed allocations for
new Native American customers and proposed an alternative method.
Western held a public information and comment forum on December 17,
1996, to accept oral and written comments regarding the methodology
used to calculate the proposed allocations for new Native American
customers. The comment period for this Federal Register notice ended
January 6, 1997.
The August 30, 1996, Federal Register notice proposed a levelized
methodology for determining Native American allocations (Method One).
Under Method One Western levelized total Federal hydropower benefits to
be received by each tribe. The proposed allocations under Method One
(the direct benefit to each tribe) were determined by taking the total
Federal hydropower benefit (63.323 percent in the summer and 56.869
percent in the winter) to be received by each tribe less the amount of
indirect benefit each tribe receives through its current power
supplier(s). As a result of comments received during the comment period
for 61 FR 45957, Western published an alternative second method (Method
Two) in the Federal Register on December 3, 1996, to calculate the
proposed tribal allocations (direct benefit). Under Method Two the
tribal allocations were determined by prorating the total amount of the
resource pool available to the tribes based on each tribe's estimated
load. This Federal Register notice also republished Method One and
requested comments in support of one of the two methods.
Western has decided to finalize the proposed allocations to new
utility and nonutility customers as announced August 30, 1996, and to
finalize the proposed allocations to Native American tribes based on
Method One adjusted to address the relatively small indirect benefits
provided to the Rosebud Sioux Tribe by Rosebud Electric Cooperative.
Final allocations were determined in the same manner as Method One
except the portion of indirect benefits received by the Rosebud Sioux
Tribe from the Rosebud Electric Cooperative were taken out of the
calculation of Rosebud Sioux Tribe's indirect benefits. This was done
in response to several comments that the Rosebud Electric Cooperative
supplies an insignificant portion of the Rosebud Sioux Tribe's
electrical requirements. Under Method One, as adjusted, Western
levelized total Federal hydropower benefits received by each tribe. The
proposed allocations under adjusted Method One (the direct benefit to
each tribe) were determined by taking the total Federal hydropower
benefit (61.6065 percent in the summer and 55.3396 percent in the
winter) to be
[[Page 11175]]
received by each tribe less the amount of indirect benefit each tribe
receives through its current power supplier(s).
The Post-2000 Resource Pool Allocations set forth in this Federal
Register notice identify the utility and nonutility customers and
Native American tribes to which Western intends to allocate power to
implement Subpart C of the Power Marketing Initiative of the Energy
Planning and Management Program Final Rule in the P-SMBP-ED.
Response to Customer Comments Regarding Post-2000 Resource Pool
Allocations
I. General Comments
Comment: Western received requests for extension of the comment
period for the August 30, 1996, Federal Register notice.
Response: 61 FR 52788 published October 8, 1996, extended the
deadline for submittal of comments until October 21, 1996. Also, 61 FR
64080 published December 3, 1996, clarified, responded to comments, and
requested additional comments regarding the levelized method of
calculating proposed allocations for new Native American customers and
proposed an alternative method. Comments were accepted regarding this
notice until January 6, 1997.
Comment: Western received requests to reconsider the application of
Horsecreek Irrigation Cooperative. Horsecreek Irrigation Cooperative
does not directly or indirectly receive electrical power from McKenzie
Electric Cooperative, Inc. Horsecreek Irrigation Cooperative was formed
solely for the purpose of obtaining Western power and does not yet
receive any power whatsoever from McKenzie Electric Cooperative, Inc.
Horsecreek Irrigation Cooperative is not active and will not be active
unless and until Western power is available.
Response: Because Horsecreek Irrigation Cooperative is inactive,
Western has declared them ineligible based on the Post-2000 Resource
Pool Allocation Procedures General Eligibility Criteria sections III.A,
III.E and III.I.
Comment: Western inappropriately evaluated Horsecreek Irrigation
Cooperatives's meeting of the 100 kW eligibility criteria. The use of
the eligibility criteria that the allocations be based on loads
experienced in the 1994 summer season and the 1994-95 winter season
does not reflect the actual growing seasons, is misguided, and favors
other users over agricultural users, who were the primary users for
which Pick-Sloan power was intended to benefit.
Response: The Post-1985 Marketing Plan established the criterion of
a minimum allocation to determine eligibility for power allocations.
The Post-1985 Marketing Plan minimum allocation criteria was modified
as set forth in the Final Procedures. The final allocations of power
for new utility and nonutility customers were calculated using Post-
1985 Marketing Plan criteria. Under the Post-1985 Marketing Plan
criteria, the summer allocations are 24.84413 percent of total summer
load and the winter allocations are 35.98853 percent of total winter
load. The final allocation procedures as published at 61 FR 41142
stipulated these percentages would be applied to the 1994 summer and
1994-95 winter season loads for utility and nonutility customers. Based
on information Horsecreek Irrigation Cooperative supplied in their
Applicant Profile Data and our calculation of that data, Western again
determined Horsecreek Irrigation Cooperative ineligible under the
General Eligibility Criteria sections III.A, III.E and III.I.
Comment: The contract with Western for the existing allocation is
contracted with the utility. Tribes choosing to form a separate utility
cannot access the allocation already contracted. There is a need for
discussion of this subject for an equitable resolution. In absence of a
resolution, Western is making it extremely difficult for tribes to form
utilities and in some cases, beneficial to the effected utilities that
currently provide service.
Response: The intent of the Program was to provide the benefits of
Federal hydropower allocations directly to individual tribes. Western
does not believe these allocations have created additional burdens for
Native American tribes in forming a separate utility. Those tribes with
smaller allocations under either method may find it more costly to form
a separate utility simply because of the cost associated with
supplemental power due to the loss of their indirect benefits.
Comment: Several applicants requested that their applications be
given reconsideration. Applicants stated that their rates were not
adjusted when the allotment was received by the supplier for power and
therefore have not received benefits, directly or indirectly, of
Western power.
Response: Western reviewed all applications that were requested to
be reconsidered. That review did not find previous applicants declared
ineligible to be eligible. Whether or not rates were adjusted for any
applicant currently receiving benefit, directly or indirectly, from a
current P-SMBP-ED firm power allocation is outside of the scope of this
process.
Comment: One commenter stated that Minot State University's
application was not considered because they are currently receiving
benefits directly or indirectly and requested an explanation.
Response: Our General Eligibility Criteria in the Post-2000
Resource Pool Allocation Procedures states, ``Qualified utility and
nonutility applicants must not be currently receiving benefits,
directly or indirectly, from a current P-SMBP-ED firm power allocation.
Qualified Native American applicants are not subject to this
requirement.'' We have determined that if an entity such as Minot State
University is administered by a State which is receiving benefits, then
they are also receiving the benefits of Federal power and are
therefore, ineligible.
Comment: Western received several comments questioning whether
Western will review the application and change their decision if a
city/municipality should achieve utility status by the deadline stated
in the Federal Register.
Response: It was the responsibility of the city/municipality to
provide necessary documentation for Western to determine if the city/
municipality met the General Eligibility Criteria. Based upon the
information submitted during the application period in their applicant
profile data, Western has determined that those entities would not be
able to achieve utility status in the given time frame.
Comment: If Western should decide to make additional allocations
available in the years 2006 and 2011, a Federal Register notice should
be published two years in advance to allow interested cities a chance
to obtain utility status. Another commenter requested Western provide
applicants ample opportunity prior to the years 2006 and 2011 to
develop their own electrical utility.
Response: If additional allocations are made, they shall be made in
accordance with the Program. Specifically, 10 CFR 905.35(c) requires
entities that desire to purchase power from Western for resale to
consumers obtain utility status 3 years prior to the subsequent
resource pool. Notice of these requirements were published in a final
rule November 20, 1995. The implementation of the Program does not
prevent an entity from obtaining utility status at any given time.
These allocations and procedures do not in any way affect Western's
obligations or flexibility in regards to future resource pools as
stipulated in the Program.
Comment: Any allocations of power to the tribes need to recognize
and
[[Page 11176]]
acknowledge that tribes were denied access to power in all previous
allocations. Another questioned how individual tribal member land
owners whose land is in trust, as is the tribes, would be able to
benefit from the Western allocation program, if the initial motivation
for including tribes in the Western allocation process was due to
impacts to Indian lands as a result of hydroelectric development on the
Missouri. Two commenters stated they would like to remind Western that
allocations of power in no way abrogates any outstanding treaty
obligations owed to their tribe nor does it impact the tribe's water
rights but is merely the result of tribes achieving ``Preference Power
Customer'' status. Another commented that the fair share of the total
resource pool allocated to the tribes was determined by Western to
reflect a portion of the reservation electrical needs by the year 2000
and to reflect the fact that the tribes had been denied access to
Western power in previous allocations.
Response: Western has continued to take steps towards assisting
Native Americans in meeting their needs for cost-based hydropower.
Western has always considered tribes to be preference entities, but has
not historically allocated power to Native Americans in the absence of
utility status, eligible irrigation load, or special legislation
enacted by Congress. In the past, the benefits of hydropower have been
realized by Native Americans through allocations to cooperatives that
serve tribal load. The Program changed Western's policy regarding
Native Americans and utility status. Therefore, allocations will now be
made directly to the tribes. Western agrees that these allocations do
not impact tribal water rights or treaty obligations.
Comment: Western received several comments that Western did not
follow the Final Power Allocation Procedures of the Post-2000 Resource
Pool as published in the Federal Register on August 7, 1996.
Specifically, the August 7, 1996, Final Procedures, Section III,
Paragraph I states, ``The minimum allocation shall be 100 kilowatts
(kW).'' The Flandreau Santee Sioux Tribe had a proposed winter season
allocation of only 20 kW under Method One. This allocation is lower
than the minimum allocation in the Final Power Allocation Procedures .
Response: The Final Procedures incorporate the Post-1985 Marketing
Plan criterion of a minimum allocation in establishing these
allocations. The Post-1985 Marketing Plan established the criterion
that eligibility for power allocations was based on an annual basis and
not a seasonal basis. It was never the intent of the Post-1985
Marketing Plan or the Post-2000 allocation process to infer that all
seasonal allocations would be a minimum of 100 kW. An applicant meets
this criterion as long as one season's proposed allocation meets the
minimum allocation of 100 kW. Therefore, in this case, it is possible
to receive a winter allocation under the 100 kW minimum as long as the
summer season is 100 kW or larger. It should be noted that Western
disqualified several utility and nonutility applicants on the basis
that both their winter and summer season proposed allocations would be
below the 100 kW minimum.
Comment: One commenter expressed concern that Western decided to
allocate the remainder to the tribes and actually increase the tribes''
share of the resource pool from 75 percent to about 80 percent. They
asked that Western look at the rules that were established and see if a
greater percentage of people could benefit from low cost hydropower by
changing some of the rules. Also, they stated that a small part of the
25 percent of the resource pool originally designated for the new
utility and nonutility customers was transferred to the Native American
customers. Again they requested Western review this procedure with
regard to allocating that small part to either new customers who have
not yet formed a ``public power agency'' or to entities that are
preference customers.
Response: Western was obligated to apply the Post-2000 Resource
Pool Allocation Procedures to all applicants. This process is designed
to allocate the 4 percent as set forth by the Program. Two future 1
percent resource pools were also identified as part of the Program and
allocations from these future resource pools will be dealt with in
future public processes.
Comment: If the ``preference power'' method of calculations is
used, the tribes should be compensated $10,000 each and Mni Sose
$100,000 to cover the entire cost for their 3-year effort.
Response: This comment is outside of this process. Western does not
have authority to compensate an entity for efforts in this process.
Comment: The Federal government, Department of Energy, Bureau of
Reclamation, Army Corps of Engineers, Department of Interior, the
Bureau of Indian Affairs, and Western, should collaborate to assure
that tribes be allowed to develop and operate their own power
utilities. Language should be amended to give tribes the ability to
form utilities as opposed to keeping the oppressive policies ongoing.
Response: The implementation of the Program does not prevent an
entity from obtaining utility status.
Comment: One commenter protested the allocations process and
demanded compensation for the use of water river rights for the
Oglalas, other Sioux tribes, and Missouri River tribes.
Response: This comment is outside of this process. Western does not
have authority to compensate an entity for the use of water rights.
Comment: Three commenters requested Western recalculate the
proposed allocations for the Native American tribes using only the
criteria in the final allocation procedures (the estimated loads).
Response: Western used the Post-2000 Resource Pool Allocation
Procedures criteria including the estimated loads in the tribal
applications in determining the final allocations for qualified Native
American tribes.
Comment: Allocations were arranged in such a way as to discourage a
tribe from starting its own utility because the amount allocated was so
small.
Response: Allocations were based on the 4 percent resource pool
which was derived from the Program. Western's final procedures were
published in the Federal Register at 61 FR 41142. Those procedures, in
conjunction with the Post-1985 Marketing Plan, established the
framework for allocating power from the resource pool, are final, and
cannot be changed in this process.
Comment: Western needs to increase the size of the resource pool.
One option would be to revamp current facilities to increase generation
and reserve surplus for tribes. Another commented that by offering up a
resource pool which is woefully inadequate to address the needs of the
tribes Western has forced the tribes to fight with each other. Another
commented that the tribes now have to place the interest of their own
tribes in the forefront and decide which of the two alternatives is
best for their tribe. This may lead to possible dissension among the
tribes which may be the goal Western is attempting to achieve.
Additionally, two commenters stated that the fair share determined by
Western does not reflect the argument made by the tribes that the size
of the resource pool and the tribal allocation should have been
substantially greater.
Response: The 4 percent resource pool was derived from the Program,
and therefore the size of the pool is outside this process. This
process is designed to allocate the 4 percent resource pool as set
forth by the Program. It was the intent of Western to provide benefits
[[Page 11177]]
from the resource pool to all eligible entities. Two future 1 percent
resource pools were also identified as part of the Program and
allocations from these future resource pools will be dealt with in
future public processes.
Comment: Outside purchases are needed to supplement the proposed
Post-2000 allocation and accommodate a larger allocation to the tribes.
Such purchases would not be a detriment to any existing customer of
Western. Pick-Sloan purchases are relatively small in contrast to other
Western areas.
Response: This comment is outside of this public process. The Final
Allocation Procedures and Final Allocations are a direct result of the
Program. The Program does not provide for the acquisition of additional
outside resources to supplement the 4 percent resource pool.
Comment: Using the power suppliers' existing hydro allocations to
provide allocations to tribes implies that the tribes may have rights
to part of the power suppliers current allocation. Another commented
that using the power suppliers' existing hydro allocation to provide
allocations to the tribes implies that the Flandreau Santee Sioux may
have rights to part of the City of Flandreau's current allocation. This
is a major concern to the City of Flandreau since the tribe was not
receiving any power when the City of Flandreau received their
allocation in 1977.
Response: The intent of the Program was to provide benefits of
Federal hydropower allocations directly to qualified Native American
tribes. This is represented in the final allocations. The use of
existing hydro allocations in the calculation method does not imply
that the tribes have rights to any part of these allocations. Further,
it does not change the contractual commitments between Western and the
existing customers. Contractual commitments between Western and the
existing customers are outside of this public process.
Comments: The proposed allocations for the Native American tribes
are based on their estimated population, both on and off the
reservations, with the Ponca Tribe of Nebraska having no land base. The
commenter believes the allocations should be based on the estimated
electrical load on the reservations. The proposed allocation from the
estimated loads based on population projections, result in allocations
larger than some tribes can utilize. Two commenters stated that the
proposed allocations from the estimated loads result in allocations
larger than some tribes can currently utilize. Another commented that
allocations are more favorable to tribes without service from an
existing Western customer and less favorable to tribes with service
from an existing Western customer. Another commented that the amount of
the Crow Tribe allocation derived from Method Two, plus the tribe's
power supplier's existing allocation, may be larger than the entire
load of the Crow Tribe. Finally, one commented that Method Two would
provide the Crow Creek Tribe more than 100 percent of their load.
Response: Western does not agree with these comments and our
analysis does not support this conclusion. Allocations for Native
American tribes were based on estimated loads for the year 2000. In the
absence of reliable load data for Native American tribes, population
data was used in an effort to estimate Native Americans loads in the
year 2000. In this notice, Western has levelized the total Federal
hydropower benefits (61.6065 percent in the summer and 55.3396 percent
in the winter) to be received by each tribe.
Comment: It should be clearly defined in the contracts that the
allocations go to the tribes themselves or beneficiaries of the tribes.
Response: Contracts for the Post-2000 Resource Pool allocations
will be between Western and the allottee.
Comment: One commenter asked if the original low cost power issued
to the tribes will still be low cost after all the transmission costs
are considered. Another commented that there should be no transmission
costs associated with distribution of power to tribes in the Missouri
River Basin.
Response: Western will assist the allottee in obtaining third-party
transmission arrangements for delivery of firm power. To the extent
that utilities are involved in these arrangements, Western will work
with those entities. However, as stated in the Final Procedures, it is
the ultimate responsibility of the allottee to obtain its own delivery
arrangements and to pay the associated costs.
Comment: Western should have allowed tribal input in developing the
allocation process.
Response: Tribal input, as well as input from other entities, has
been solicited in conjunction with the public process comment period
that was initiated January 29, 1996, and concluded January 6, 1997.
During that time frame seven informational forums and seven comment
forums were held and ongoing opportunities to provide written comments
were allowed at each step of the process.
Comment: Two comments stated that the tribes should directly
receive the entire allocation to service the tribal load.
Response: The intent of the Program was to provide the benefits of
Federal hydropower allocations directly to individual tribes. The
entire allocations contained in this notice will be made directly to
the tribes. Any indirect benefits recognized in the calculation method
were utilized only to levelize total benefits across the Region at the
time of allocation with no intent to create any commitment whatsoever,
to transfer these benefits to the tribes. Any indirect benefits
received by the tribes are contractual commitments between Western and
the existing customers and are outside of this public process.
Comment: The allocation as proposed (under Method One) penalizes
the Crow Tribe as a recipient of Federal power and subjects the Crow
Tribe to anti-Indian policies by an existing power supplier.
Response: It is not the intent of the Program to penalize any
recipient of Federal power. Under any method of direct allocation,
which does not result in full requirements being met by P-SMBP-ED, the
tribe will be subject to existing power supplier policies to the extent
they desire the existing power supplier to continue to supply the
tribe's remaining power needs.
Comment: Revenues from Western could be more helpful to tribes by
providing set-aside monies, grants, and startup monies. This is the
prime time for a tribe to initially plan for utility status, if it
wants to.
Response: This comment is outside of this process. Western does not
have the authority to provide revenues to the tribes for set-aside
monies, grants or startup monies through this allocation process.
Comment: Was the motivation for the provisions in the 1992 Energy
Policy Act to include Indian tribes in Western's allocation planning?
Did tribes or representatives from tribes provide testimony, initially
under the Energy Policy Act to include benefit provisions to tribal
governments?
Response: These comments are outside of this process.
Comment: Did tribes use the negative impacts to Indian lands from
hydroelectric development on the Missouri River as justification to
include tribes as beneficiaries of Western allocations?
Response: This comment is outside of this process.
Comment: If Western would refer the individual land owner back to
the tribe, would Western be predisposed to assist and advocate for
individual land owners, directly impacted by
[[Page 11178]]
hydroelectric development activities, in respect to energy allocations,
either through low or no cost energy benefits after the year 2001?
Response: Western intends to provide benefits directly to Native
American tribes beginning in 2001 and will work with the tribes to
assure receipt of those benefits.
Comment: There is not a clear enough definition as to who a
qualified allocation beneficiary can be outside of a reservation
boundary.
Response: Off-reservation use of Native American tribe allocations
under certain circumstances as determined by Western was allowed for in
60 FR 54151. The circumstances under which off-reservation use of a
Native American tribe allocation will be allowed will be determined by
Western on a case-by-case basis during the contract negotiation
process.
Comment: The allocation should be made to the tribe and to the
utility.
Response: The intent of the Program was to provide the benefits of
Federal hydropower allocations directly to individual tribes. This
principal is consistent with how Western treats existing customers.
Western does not feel that the goal of the Program would be served by
jointly allocating Native American allocations to utilities and tribes.
Comment: The very concept of the allocation/credit has caused
concern among the cooperative membership and an increase to a
nonjustifiable higher level will enhance divisiveness and ill feelings.
Response: This situation does exist among some of Western's long
term firm power customers who have a different blend of low-cost
hydropower and supplemental power. This comment is outside of this
process.
Comment: As new preference customers, Native Americans should
receive the benefit of the same principles Western has applied in
previous marketing plans.
Response: Western's final procedures were published in the Federal
Register at 61 FR 41142. Those procedures, in conjunction with the
Post-1985 Marketing Plan, established the framework for allocating
power from the resource pool. The current process has incorporated
principles from prior marketing plans as well as establishing that the
new customers will be bound by similar general contract principles as
existing customers.
Comment: To revisit the Native American allocation methodology at
this late date is counterproductive to expeditious implementation of
this program.
Response: This comment was directed at the December 3, 1996,
Federal Register notice, which proposed an alternate second method to
calculate the proposed tribal allocations. Based upon input received
during the public process, Western felt it appropriate to propose an
alternate Native American allocation methodology and to extend the
comment period to determine power allocations to assure the intent of
the Program is satisfied.
Comment: It is important that Western directly involve the
Sisseton-Wahpeton Sioux Tribe, and the other Missouri River basin
tribes in all future resource planning and allocations. Mni Sose
Intertribal Water Rights Coalition, Inc. will also continue to be an
active representative of these tribes. Also, one commenter stated that
comments submitted pursuant to this notice should not be considered the
final comments of their Tribe/Nation. The Crow Tribe Public Utility
Commission will continue to review and report on the various aspects of
Energy, Electrical Power and ancillary services. Another commented that
Western, along with the rest of the Federal Government, has an enduring
and continuing trust responsibility for the tribes in the Missouri
River Basin.
Response: Western supports the Department of Energy's American
Indian policy which stresses the need for a government-to-government,
trust-based relationship. Western intends to continue its practice of
consultation with tribal governments so that tribal rights and concerns
are considered prior to any actions being taken that effect the tribes.
Comment: The delivery of Federal hydropower to the tribes should be
made in such a way that the benefit of the allocation is realized by
the end user.
Response: Contracts for power of the Post-2000 Resource Pool will
be between Western and the allottee.
Comment: One commenter expressed the desire for Western to come to
the Standing Rock Reservation to present the contracts in negotiating
with Standing Rock Sioux Tribe to honor the government-to-government
relationship, because it is taken very seriously at Standing Rock
Reservation.
Response: Entering into contractual arrangements with the various
entities is the next step of this process. However, this will not begin
until the final allocation process has been completed.
Comment: The allocation should be made in the form of energy and
not a credit.
Response: Western agrees that allocations in the form of energy is
one viable method of delivering the benefits of Federal hydropower to
Native American tribes. However, flexibility must be retained in the
delivery of such benefits in order to fit a diverse group of Native
American tribes and power suppliers. The method for delivering the
benefits of Federal hydropower to the tribes will be determined during
the contract negotiation process.
B. Methodology Comments
Western departed from the Mni Sose Intertribal Water
Rights Coalition, Inc. method of allocation without consultation with
the tribes and created inequities.
Western ignored the allocation formula which the tribes
agreed upon and poured considerable resources into preparing.
Two commenters mentioned the plan put forth by Mni Sose
Intertribal Water Rights Coalition, Inc. must be acknowledged and used.
The proposed allocation to the Pine Ridge Tribe is 40
percent greater than what Mni Sose Intertribal Water Rights Coalition,
Inc. estimated as their current requirements.
Current use figures were often unavailable because the
five companies that currently serve the Lake Traverse Reservation were
not totally cooperative in providing data.
The allocation process is sorely lacking in consideration
of the tribe's needs and wants and the Yankton Sioux Tribe is not going
to indicate a preference for either allocation method.
The differences between the proposed methods of allocation
may be perceived to instigate confrontations among or between various
tribes, but the ultimate concern of the Native American tribes/Nations
is to improve and expand electric goods and services available to
improve living conditions and address conditions on many ``Indian
Reservations'' within and throughout the native life sustaining regions
of the Upper Missouri River region and beyond.
Several commented that Section 3, Paragraph D of the
General Allocation Criteria, states, ``Allocations made to Native
American Tribes will be based on estimated load developed by the Native
American tribes. Inconsistent estimates will be adjusted by Western
during the allocation process.'' Under Method One, ``Proposed
Allocations'' were not only based on the estimated load developed by
the Native Americans, they were adjusted by the estimated current
service the Native Americans were already receiving from their power
suppliers. The so called ``levelizing'' of benefits was not part of
[[Page 11179]]
the General Allocation Criteria in the Final Procedures. Also, under
this method, the Flandreau Tribe will lose 4 percent or 53 kW in the
year 2000. After 2000 the tribe will have a net loss of 33 kW.
Several commenters expressed concern that the average
current Western service to the Rosebud Sioux Reservation, as published
in the Federal Register, is not correct. Ninety-nine percent of the
Rosebud Sioux Tribe's load is served by LaCreek-Electric Cooperative,
Inc. and Cherry-Todd Electric Cooperative, Inc., both members of
Rushmore Electric Power Cooperative. The small portion of Rosebud
Electric Power Cooperative's service with a higher allocation should be
ignored for this calculation in order to make the balance correct in
how much the tribe should get. Take Rosebud Electric Cooperative out of
the formula and the allocation would be fair and correct.
It is important to the members of Hot Springs Rural
Electric Association, Inc. that the precedent set in the P-SMBP-ED be a
fair and equitable allocation of the Resource Pool. In the near future,
Western will begin to allocate the Resource Pool in the Pick Sloan
Missouri Basin, Western Division, and we anticipate similar action in
the Colorado River Storage Project.
The amount of allocation derived from the use of Method
One more clearly represents a fair allocation to the Crow Tribe.
Several commenters strongly encourage Western to apply the
levelized method (Method One) of calculating proposed allocations to
Native American customers. The support is based on the principle of
applying equity among tribal members. These comments suggest that
Method Two is not consistent with the principle of equity. Method Two
offers greater benefits to some at the expense of others. Unless
existing Federal bulk power supply available through current power
suppliers is taken into account as part of the final allocations,
variations in the amount of Federal power available among tribal
interests will vary and lead to further retail rate disparities.
To increase the allocation to Method Two levels does not make
sense.
We support ``Method One'' as fair and equitable to all
Native Americans and current electric utility providers. Neither they
nor its member systems serve the region defined in the Federal Register
notice but think its important to comment. They anticipate similar
action in the Colorado River Storage Project and it is very important
to them and its member systems that the precedent set in the P-SMBP-ED
be fair and equitable. Also, they submitted recommendations because
expenses for the Pick-Sloan Missouri Basin Program are shared over both
divisions. The alternative method does not equitably distribute the
benefits of the resource pool or take into account benefits for Native
Americans already received through the current electric utility.
If Western utilizes ``Method Two'', the Turtle Mountain
band of Chippewa Indians would suffer a 27 percent reduction. Tribes
which are currently receiving much higher benefits, will receive the
much higher allocation which will result in a greater disparity among
the tribes.
Method One is considered inequitable for the reason that
tribes receiving Western power through the existing rural electrical
cooperatives are more likely to fall in the category of the Crow Creek
Sioux Indian Reservation and are not likely to benefit from the current
contractual arrangements between the rural electrical cooperatives and
Western.
We request Western use Method Two in calculating the
proposed allocations for new Native American customers. The comment
suggested that Method Two not only follows the criteria in the final
procedures, it also appears to treat all tribes on a more equitable and
fair basis.
Several commenters recommended Method Two for new Native
American customers. The ``second'' method presented by Western more
adequately addresses the tribal needs and demands for electrical energy
to improve and expand allocations to meet conditions as discussed and
developed during coordinated meetings among tribes and Western. Method
Two also more fairly distributes the Native American tribes' share of
the resource pool among the tribes. Under Method One, some tribes would
receive an allocation greatly in excess of their load requirements.
Method One simply does not do what Western states it is
intended to do. It is not a fair or equitable allocation to the tribes.
Response: Western used components of the Mni Sose Water Rights
Coalition's allocation method in the development of the Final
Allocation Procedures and the Final Allocations. As stated in the Post-
2000 Resource Pool Allocation Procedures General Eligibility Criteria
section III.D, ``Allocations made to Native American tribes will be
based on estimated load developed by the Native American tribes.
Inconsistent estimates will be adjusted by Western during the
allocation process.'' Western accepted loads submitted by the tribes
which were estimated by the Mni Sose Intertribal Water Rights
Coalition, Inc. Western also accepted loads estimated using other
methods developed by individual tribes. Western only adjusted tribal
load estimates when an obvious error was made in the load calculation
or when an unreasonable assumption was used in the estimation method.
Western provided an additional opportunity to address and clarify
comments regarding the levelized method of calculating proposed
allocations for new Native American customers and proposed an
alternative method. On December 3, 1996, Western published in the
Federal Register, at 61 FR 64080, a Notice of Clarification, Response
to Comments and Request for Additional Comments. Western held a public
information and comment forum on December 17, 1996, to accept oral and
written comments regarding the methodology used to calculate the
proposed allocations for new Native American customers. The comment
period for this Federal Register notice ended January 6, 1997. The
public process was a consultation period for both Native Americans and
other interested entities, and the Mni Sose Intertribal Water Rights
Coalition, Inc. was involved in that process.
Western recognizes the concern expressed by the Rosebud Sioux Tribe
regarding the minor contribution of indirect benefits from the Rosebud
Electric Cooperative in comparison to the other two co-suppliers and
the inequitable effect it has on the Rosebud Sioux Tribe's proposed
allocation under Method One. It was appropriate to adjust the
calculation of Rosebud Sioux Tribe's indirect benefit by excluding the
indirect benefits provided by Rosebud Electric Cooperative. The Rosebud
Sioux Tribe and others raised this issue in both the information
meetings and the formal comment forums in addition to sending in
written comments. The adjustment to Method One was a data issue and not
a change in the guidelines for making the allocations established
through the public process. Western was not aware of this discrepancy
until information was provided during the process. As a result of this
information, Western has adjusted Method One as originally published to
address this concern.
Western reviewed the commenter's concern that the Flandreau Tribe
could possibly experience a net loss of hydropower benefits, as
proposed, when considering their total power supply (supplemental power
and direct benefits). All long term firm power customers of Western are
subject to the
[[Page 11180]]
requirement that they will lose 4 percent of their allocation as
provided by the Program regardless of what amount is allocated to the
tribe.
We recognize the concern of the Crow Creek Sioux Tribe regarding
the different rate designs of the cooperatives that serve the
reservation and their effect on the ratepayers. Western has no control
over these rate designs and this issue is outside of our allocation
process. It should be noted that although Crow Creek Sioux Tribe's
comment was directed at Method One, Method Two does not correct the
rate design problem either.
Western received diverse comments regarding the proposed Method One
and Method Two. The intent of the Program was to provide the benefits
of Federal hydropower allocations directly to individual tribes in an
equitable manner. After reviewing all comments, Western selected Method
One, adjusted to address the relatively small indirect benefits
provided to the Rosebud Sioux Tribe by Rosebud Electric Cooperative, to
determine the size of the allocations based upon the need to meet an
appropriate share of the load for qualified Native American tribes.
Western used the Post-2000 Resource Pool Allocation Procedures criteria
and exercised its discretion under Reclamation Law in shaping the Final
Allocations in response to input during the public process in
allocating this resource to eligible applicants. Method One, as
adjusted, meets Western's Program requirements and the needs of
Western's new customers, while being responsive to the comments
received in this process. Western did not receive comments showing an
overwhelming support for a change to Method Two. In particular, Mni
Sose Intertribal Water Rights Coalition, Inc., did not indicate a
preference for either Method One or Method Two.
III. Final Power Allocations
The following final power allocations are made in accordance with
the Final Procedures published in the Federal Register at 61 FR 41142
on August 7, 1996. All of the allocations are subject to the execution
of a contract in accordance with the procedures. Western announces that
Native American tribes' share of the resource pool is 80.64 percent in
the summer season and 78.33 percent in the winter season. The new
utility and nonutility customers' share of the resource pool is 19.36
percent in the summer season and 21.67 percent in the winter season.
Allocations to Native American Tribes
The final allocations of power for new Native American customers
and the data these allocations are based upon are as follows:
----------------------------------------------------------------------------------------------------------------
Average current western Post-2000 power
Estimated service allocation
New native American customers demand ---------------------------------------------------
kilowatts Summer Winter
Summer Winter kilowatts kilowatts
----------------------------------------------------------------------------------------------------------------
Blackfeet Nation............................... 18,600 32 27 5,507 5,271
Cheyenne River Sioux........................... 13,500 33 29 3,862 3,556
Chippewa Cree-Rocky Boy........................ 5,000 55 44 330 567
Crow Creek..................................... 4,100 50 47 476 342
Crow........................................... 12,500 55 44 826 1,417
Devils Lake Sioux.............................. 7,700 22 14 3,050 3,183
Flandreau Santee Sioux......................... 2,355 55 56 156 0
Fort Belknap Indian Community.................. 6,200 28 22 2,084 2,067
Fort Peck Tribes............................... 15,300 34 31 4,224 3,724
Lower Brule Sioux.............................. 3,100 33 29 887 817
Lower Sioux.................................... 3,750 0 0 2,310 2,075
Northern Cheyenne.............................. 9,400 36 37 2,407 1,724
Oglala Sioux-Pine Ridge........................ 29,600 28 24 9,948 9,277
Omaha Tribe of Nebraska........................ 5,100 15 14 2,377 2,108
Ponca Tribe of Nebraska........................ 2,100 8 6 1,126 1,036
Rosebud Sioux.................................. 21,300 33 29 6,093 5,610
Santee Sioux Tribe of Nebraska................. 1,100 10 8 568 521
Sisseton-Wahpeton Sioux........................ 7,500 40 38 1,620 1,300
Standing Rock Sioux............................ 12,900 30 29 4,077 3,398
Three Affiliated Tribes........................ 8,000 30 25 2,529 2,427
Turtle Mountain Chippewa....................... 18,000 35 18 4,789 6,721
Upper Sioux.................................... 1,250 42 39 245 204
White Earth Indian Reservation................. 3,500 6 7 1,946 1,692
Winnebago Tribe of Nebraska.................... 3,100 10 8 1,600 1,468
Yankton Sioux.................................. 5,300 25 24 1,940 1,661
----------------------------------------------------------------------------------------------------------------
The final allocations for new Native American customers were
calculated based upon the estimated demand figures set forth in the
table above. Estimated demand figures were taken from the Native
American tribal applications. Inconsistent demand estimates were
adjusted by Western.
In order to appropriately distribute the benefits of Federal
hydropower among the tribes, Western calculated the proposed power
allocations in the table above in such a manner as to levelize total
Federal hydropower benefits to each of the Native American tribes. This
results in a total Federal hydropower benefit of 61.6065 percent in the
summer season and 55.3396 percent in the winter season to each of the
tribes. To levelize the total Federal hydropower benefits, the average
current percentage of Western service that each of the tribes receives
through their current power supplier(s) was utilized and is as shown in
the table above. For the Blackfeet Nation, Western used the weighted
average of the current percentage of Western service for the remaining
tribes. The Blackfeet Nation is served by Glacier Electric Cooperative,
which is a total requirements customer of Bonneville Power
Administration, therefore the Blackfeet Nation does not receive Western
service, but does receive the benefit of Federal hydropower. The
[[Page 11181]]
weighted average of the current percentage of Western service changed
under the adjusted Method One because Rosebud Sioux Tribe's average
current percentage of Western service changed. The final power
allocation for each tribe was determined by multiplying the difference
between the total Federal hydropower benefit provided to each tribe
(61.6065 percent in the summer season and 55.3396 percent in the winter
season) and each tribe's average current percentage of Western service
by each tribe's estimated demand.
The final allocations to new Native American customers set forth in
the table above are based on the P-SMBP-ED marketable resource
available at this time. If the P-SMBP-ED marketable resource is
adjusted in the future, the final allocations will be adjusted
accordingly.
B. Allocation to Utility and Nonutility Customers
The final allocations of power for new utility and nonutility
customers and the loads these allocations are based upon are as
follows:
----------------------------------------------------------------------------------------------------------------
Post-2000 power
1994 Summer 1994-95 allocation
Utility and Nonutility Customers season load Winter -------------------------
kilowatts season load Summer Winter
kilowatts kilowatts kilowatts
----------------------------------------------------------------------------------------------------------------
Village of Emerson, NE...................................... 1,454 1,146 361 412
City of Estherville, IA..................................... 11,040 7,820 2,743 2,814
City of Randolph, NE........................................ 1,861 1,386 462 499
City of Pocahontas, IA...................................... 3,980 3,144 989 1,131
City of Madison, NE......................................... 10,034 8,759 2,493 3,152
City of South Sioux City, NE \1\............................ 24,977 21,846 5,000 5,000
City of Sergeant Bluff, IA.................................. 6,076 3,888 1,510 1,399
City of Wakefield, NE....................................... 4,717 3,667 1,172 1,320
City of Fairmont, MN........................................ 2,330 2,464 579 887
City of Marathon, IA........................................ 520 764 129 275
City of Stanton, ND......................................... 656 850 163 306
----------------------------------------------------------------------------------------------------------------
\1\ 5,000 kW is the maximum allocation allowed under the Final Procedures.
The final allocations of power for new utility and nonutility
customers were calculated using Post-1985 Marketing Plan criteria.
Under the Post-1985 Marketing Plan criteria, the summer allocations are
24.84413 percent of total summer load and the winter allocations are
35.98853 percent of total winter load.
The final allocations to new utility and nonutility customers set
forth in the table above are based on the P-SMBP-ED marketable resource
available at this time. If the P-SMBP-ED marketable resource is
adjusted in the future, the final allocations will be adjusted
accordingly.
III. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (Act),
requires Federal agencies to perform a regulatory flexibility analysis
if a proposed regulation is likely to have a significant economic
impact on a substantial number of small entities. Western has
determined that this rulemaking relates to services offered by Western,
and, therefore, is not a rule within the purview of the Act.
IV. Review Under the Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980, 44 U.S.C.
3501-3520, Western has received approval from the Office of Management
and Budget (OMB) for the collection of customer information in this
rule, under control number 1910-1200.
V. Review Under the National Environmental Policy Act
Western requested input regarding the identification of any
additional environmental issues both in the Federal Register at 61 FR
2817, January 29, 1996, and at the public meetings. No environmental
comments were received or additional environmental issues identified.
Therefore, Western has determined that the analysis in the Program
Environmental Impact Statement is sufficient for this action and
current DOE (10 CFR part 1021) regulations indicate that no further
National Environmental Policy Act impact analysis documentation is
required.
VI. Determination Under Executive Order 12866
DOE has determined this action does not meet the criteria of
Executive Order 12866, 58 FR 51735 and is not a significant regulatory
action. Western has an exemption from centralized regulatory review
under Executive Order 12866; accordingly, no clearance of this notice
by Office of Management and Budget is required.
VII. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirement: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather that a general standard and
promote simplification and burden reduction. With regard to the review
required by sections 3(a), sections 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) Clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more or them. DOE has completed the
required review and determined that, to the extent permitted by law,
the final regulations meet the relevant standards of Executive Order
12988.
[[Page 11182]]
VIII. Congressional Notification
The final regulations published today are subject to the
Congressional notification requirements of the Small Business
Regulatory Enforcement Fairness Act 1996. The Office of Management and
Budget has determined that the final regulations do not constitute a
``major rule'' under the Act (5 USC 801, 804). DOE will report to
Congress on the promulgation of the final regulations prior to the
effective date set forth at the beginning of this notice.
Issued at Golden, Colorado, February 28, 1997.
J.M. Shafer,
Administrator.
[FR Doc. 97-5996 Filed 3-10-97; 8:45 am]
BILLING CODE 6450-01-P