[Federal Register Volume 64, Number 221 (Wednesday, November 17, 1999)]
[Proposed Rules]
[Pages 62604-62613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29675]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 64, No. 221 / Wednesday, November 17, 1999 / 
Proposed Rules  

[[Page 62604]]


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DEPARTMENT OF ENERGY

Western Area Power Administration

10 CFR Part 905

RIN 1901-AA84


Energy Planning and Management Program; Integrated Resource 
Planning Approval Criteria

AGENCY: Western Area Power Administration, DOE.

ACTION: Notice of proposed rulemaking and public forum.

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SUMMARY: The Western Area Power Administration (Western) is seeking 
public comment on its proposed revisions to current regulations that 
require customers to prepare integrated resource plans. Western is 
proposing revisions to allow customers more alternatives in meeting the 
integrated resource planning requirements, thereby enhancing customer 
competitiveness through increased flexibility and reduced burdens in 
complying with this rule.

DATES: Written comments, in hard copy or via email, must be received no 
later than 5 p.m. Mountain Standard Time on December 30, 1999. A joint 
public information and public comment forum will be held starting at 1 
p.m. Mountain Standard Time on November 30, 1999.

ADDRESSES: Written comments should be sent to Mr. Simmons Buntin, Power 
Marketing Support Office, Western Area Power Administration, P.O. Box 
281213, Lakewood, CO 80228-8213. Prior to November 30, 1999, comments 
can be sent by fax to (303) 275-1616; after November 30, 1999, the fax 
number is (720) 962-7427. Comments also can be sent by electronic mail 
to [email protected]. The public forum will be held at the Radisson Hotel 
Denver, 3333 Quebec Street, Denver, Colorado 80207.

FOR FURTHER INFORMATION CONTACT: Mr. Simmons Buntin, prior to November 
30, 1999, telephone number is (303) 275-1739; after November 30, his 
number is (720) 962-7419. Mr. Buntin's electronic mail address is 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Introduction and Background
II. Section by Section Discussion of Changes
III. Public Information/Comment Forum Procedures
IV. Procedural Requirements
    A. Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 13132
    F. Review Under the Unfunded Mandates Reform Act of 1995
    G. Review Under Executive Order 12988
    H. Treasury and General Government Appropriations Act, 1999
    I. Review Under Executive Order 13084

I. Introduction and Background

    Section 114 of the Energy Policy Act of 1992 (EPAct), Public Law 
102-486, requires integrated resource planning by Western's customers. 
Western implemented EPAct through completion of the Energy Planning and 
Management Program (Program) in October 1995. The Program was published 
in the Code of Federal Regulations at 10 CFR part 905.
    Western's Administrator is required by EPAct to initiate a public 
process to review Western's integrated resource planning (IRP) 
regulations within 1 year of January 1, 2000. The Administrator is 
authorized at that time to revise Western's criteria for approving 
integrated resource plans ``to reflect changes, if any, in technology, 
needs, or other developments.''
    Both the wholesale and retail aspects of the electric utility 
industry are changing, and change is expected to continue. The 15 
States within which Western markets power have taken very different 
approaches to deregulation with diverse schedules for implementing any 
changes to the status quo. Additionally, the timing and scope of any 
Federal restructuring legislation is uncertain. Given the increasingly 
competitive and deregulated electricity marketplace, Western's 
integrated resource planning regulations, which were adopted under the 
traditional utility planning framework, warrant review.
    Western is proposing an approach that features customer choice and 
flexibility, and reflects the transition of the electric utility 
industry. Customers can choose to continue preparing IRPs, or can adopt 
approaches that are emerging in lieu of IRP requirements. These new 
approaches include compliance with a defined level of investment in 
energy efficiency and/or renewables, compliance with an established 
public benefits program, or compliance with mandated energy efficiency 
and/or renewable energy reporting requirements.
    Only subparts A and B of the existing regulations are proposed for 
revision.

II. Section by Section Discussion of Changes

    Many wording and format changes contained in the proposed rule have 
been drafted to comply with the President's initiative to use plain 
language in government writing.
    The purpose statement in Sec. 905.1 would be updated to describe 
acceptable customer activities, in light of the changes taking place in 
the electric utility industry, that meet the objectives of section 114 
of EPAct.
    In Sec. 905.2, we have proposed removing the definition for 
applicable IRP and adding new terms (energy efficiency and/or renewable 
energy report, minimum investment report and public benefits charge) in 
order to clearly describe the new alternatives for customer compliance. 
We propose shortening the definition of integrated resource planning, 
modifying the definition of small customer to include end-use 
customers, and removing the definition of least-cost option since a 
customer is free to pursue renewables and energy efficiency even if 
other resources appear to be less costly. Additionally, definitions 
would be added for Region, IRP cooperative, and renewable energy.
    Changes to Sec. 905.10 would be consistent with the broader array 
of compliance options available to customers under this proposed 
regulation. The exception for State-regulated, investor-owned utilities 
that exists today would be deleted, in order to assure equitable 
compliance by all of Western's long-term firm customers.
    Section 905.11, which deals with the contents of an integrated 
resource plan, would be streamlined and simplified. The number of IRP 
criteria would be reduced from seven to six, eliminating least-cost 
designation as a separate criteria while combining its relevant parts 
with the identification of resource

[[Page 62605]]

options criteria. One prominent theme in this area is confidentiality 
of information. To ensure that proprietary information is not made 
available to competitors, customers would not have to submit sensitive 
information to Western. Summaries of customer activities would be 
adequate, as long as Western can obtain more detailed supporting 
information upon request. This proposal also intends to lessen the 
paperwork burden on customers. In recognition of the fast-paced change 
in the industry, Western proposes to allow customers to define their 
own action planning horizons to carry out IRP.
    Several regulatory provisions would be renumbered to improve 
organization and flow. Proposed Secs. 905.12 and 905.13 would 
reorganize the current provisions of Sec. 905.12 for clarity, but 
Western proposes no substantive change to IRP submittal requirements. A 
more detailed discussion of the cooperative IRP submittal process would 
be added in Sec. 905.13. Proposed Sec. 905.14 contains the provisions 
of currently effective Sec. 905.13. Proposed Sec. 905.15, which deals 
with annual IRP progress reports, contains the substance of existing 
Sec. 905.16.
    Sections 905.15 and 905.16 would be modified to include statements 
that annual progress reports and update letters can be submitted 
outside of the 30-day anniversary date window if previously approved by 
Western.
    Section 905.16 describes the proposed requirements of the small 
customer plan alternative for eligible customers. Changes to the 
existing rule would include expansion of the small customer plan method 
of compliance to include all end-use customers regardless of size. 
Small utilities could take advantage of the small customer provision, 
even if they belong to member-based associations or joint-action 
agencies.
    Section 905.17 is a new section that would allow customers to 
comply with the regulation by adopting a minimum level of financial or 
resource investment in energy efficiency initiatives and/or renewable 
energy activities required by State, Tribal, or Federal law. In order 
to avoid duplication and conflicting mandates, Western is proposing to 
accept these customer efforts as satisfying the provisions of the 
EPAct. Such a minimum investment standard has already been adopted in 
the State of Iowa.
    Section 905.18 is another new section that would allow customers to 
comply with the regulation by participating in a public benefits 
program required by State, Tribal, or Federal law, under which a 
defined minimum percentage of a customer's gross revenues is devoted to 
public purposes. In order to avoid duplication and conflicting 
mandates, Western proposes to accept these customer efforts as 
satisfying the provisions of EPAct. Such a public benefits mandate has 
already been adopted in the States of California, Montana, and New 
Mexico.
    State and Federal end-use customers often must comply with 
standards and reporting requirements that document efforts in IRP, 
energy efficiency, and renewable energy. An example of this compliance 
is Executive Order 13123, which requires Federal agencies to 
aggressively reduce energy consumption and to expand the use of 
renewable energy. Section 905.19 would accept these compliance efforts 
if they meet the objectives of EPAct.
    Former Secs. 905.15-905.21 would be renumbered as Secs. 905.20-
905.25 and would be modified to enhance understanding and clarity.
    A redline-strikeout version comparing the proposed revisions with 
the current subparts A and B is available on Western's Website at 
www.wapa.gov.

III. Public Information/Comment Forum Procedures

    Interested parties may submit comments on Western's proposed 
revisions to subparts A and B of the regulations in two ways: either 
(a) directly to the project manager via mail, e-mail, fax, or hand 
delivery no later than 5 p.m. Mountain Standard Time on December 30, 
1999; or (b) in person or through a representative at the joint public 
information and public comment forum to be held beginning at 1 p.m. 
Mountain Standard Time on November 30, 1999, at the Radisson Hotel 
Denver. Addresses for comments and the forum are provided earlier in 
the preamble.
    The joint public information and public comment forum will feature 
a presentation by Western staff summarizing proposed revisions to 
subparts A and B of the regulations, the reasons for revisions, and 
anticipated benefits arising from revisions. After the formal 
presentation of 30 minutes or less, attendees will have the opportunity 
to ask Western staff questions related to proposed revisions. Once all 
questions are asked and individually responded to by Western, the 
public comment forum will begin and interested parties will have the 
opportunity to comment on Western's proposed revisions. A court 
reporter will record the proceedings, and a transcript will be 
prepared. The public will be able to review the transcript at Western's 
offices, or may order a personal copy from the court reporter.
    Comments from the public comment forum will be considered along 
with all other comments received prior to 5 p.m. Mountain Standard Time 
on December 30, 1999. Comments will be incorporated into the final rule 
as appropriate, and all comments will be addressed upon publication of 
the final rule in the Federal Register.

IV. Procedural Requirements

A. Executive Order 12866

    Western has an exemption from centralized regulatory review under 
Executive Order 12866; accordingly, no clearance of this notice by the 
Office of Management and Budget (OMB) is required.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601, et seq., 
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's 
Administrator certifies that this proposed rule will have no 
significant adverse impact on a substantial number of small entities 
because the proposed revisions to these regulations reduce paperwork 
and financial and other burdens, as well as reporting redundancies for 
small entities.

C. 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 OMB for the collection of 
customer information in this rule, under control number 1910-1200.

D. Review Under the National Environmental Policy Act

    Western prepared an environmental impact statement and record of 
decision pursuant to the National Environmental Policy Act of 1969 
(NEPA) for the Energy Planning and Management Program, which 
established the existing IRP requirements for Western power customers. 
This met the requirements of NEPA, 42 U.S.C. 4321, et seq., the Council 
on Environmental Quality Regulations for implementing NEPA (40 CFR 
parts 1500-1508), and the DOE NEPA Implementing Procedures and 
Guidelines (10 CFR part 1021). Since the proposed revisions would 
modify those IRP requirements, Western is conducting a review to 
determine if a supplemental environmental analysis is required.

[[Page 62606]]

E. Review Under Executive Order 13132

    Executive Order 13132 (64 FR 43255, August 4, 1999) imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the need for 
such actions. Western has examined this rule and determined that it 
does not preempt State law and does not have a substantial direct 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

F. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 requires each 
agency to assess the effects of Federal regulatory action on State, 
local, and Tribal governments and the private sector. Western has 
determined that this proposed regulatory action does not impose an 
additional Federal mandate on State, local, or Tribal governments or on 
the private sector.

G. 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), imposed on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 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 3(b) to determine whether they are met or if it is 
unreasonable to meet one or more of them. Western has completed the 
required review and determined that, to the extent permitted by law, 
the proposed regulations meet the relevant standards of Executive Order 
12988.

H. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. Today's proposal would not have any impact on the autonomy 
or integrity of the family as an institution. Accordingly, Western has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 13084

    Under Executive Order 13084 (Consultation and Coordination with 
Indian Tribal Governments), Western may not issue a discretionary rule 
that significantly or uniquely affects Indian tribal governments and 
imposes substantial direct compliance costs. The incremental amendments 
involved in this proposed rulemaking would not have such effects. 
Accordingly, Executive Order 13084 does not apply to this rulemaking.

List of Subjects in 10 CFR part 905

    Electric power, Electric utilities, Energy, Energy conservation, 
Hydroelectric power, Reporting and recordkeeping requirements.

    Issued in Washington, D.C. on November 3, 1999.
Michael S. Hacskaylo,
Administrator.
    For the reasons set forth in the preamble, 10 CFR part 905 is 
proposed to be amended as set forth below.

PART 905--ENERGY PLANNING AND MANAGEMENT PROGRAM

    1. The authority citation continues to read as follows:

    Authority: 42 U.S.C. 7152 and 7191; 32 Stat. 388, as amended; 
and 42 U.S.C. 7275-7276c.

    2. Subparts A and B are revised to read as follows:

Subpart A--General Provisions

Sec.
905.1  What are the purposes of this part?
905.2  What are the key definitions of this part?

Subpart B--Integrated Resource Planning

905.10  Who must comply with this part?
905.11  What must an IRP include?
905.12  How must IRPs be submitted?
905.13  When must IRPs be submitted?
905.14  What are the criteria for Western's approval of IRPs?
905.15  What are annual IRP progress reports?
905.16  What are the requirements for the small customer plan 
alternative?
905.17  What are the requirements for the minimum investment report 
alternative?
905.18  What are the requirements for the public benefits report 
alternative?
905.19  What are the requirements for the energy efficiency and/or 
renewable energy report (EE/RE report) alternative?
905.20  How are plans and reports processed?
905.21  When are customers in noncompliance with this rule, and how 
does Western ensure compliance?
905.22  What is the administrative appeal process?
905.23  How does Western periodically review plans and reports?
905.24  What are the opportunities for using the Freedom of 
Information Act to request data?
905.25  How often is this program reviewed?

Subpart A--General Provisions


Sec. 905.1  What are the purposes of this part?

    The purposes of this part are to meet the objectives of section 114 
of the Energy Policy Act of 1992 (EPAct) and to extend the long-term 
firm power resource commitments while supporting customer integrated 
resource planning (IRP), energy efficiency and conservation, and the 
use of renewable energy. Subpart B allows customers of the Western Area 
Power Administration (Western) to meet the objectives of section 114 of 
EPAct through integrated resource planning or by other means, such as 
attaining a minimum level of investment in energy efficiency and/or 
renewable energy, collecting a charge to support defined public 
benefits, or complying with a mandated energy efficiency and/or 
renewable energy reporting requirement.


Sec. 905.2  What are the key definitions of this part?

    Administrator means the Administrator of Western.
    Customer means any entity that purchases firm capacity, with or 
without energy, from Western under a long-term firm power contract. The 
term also includes a member-based association (MBA) and its 
distribution

[[Page 62607]]

or user members that receive direct benefit from Western's power, 
regardless of which holds the contract with Western.
    Energy efficiency and/or renewable energy (EE/RE) report means the 
report resulting from a mandate to conduct energy efficiency and/or 
renewable energy activities imposed by a State, Tribal, or the Federal 
Government upon a State, Tribal, or Federal end-use customer within its 
jurisdiction.
    Integrated resource planning means a planning process for new 
energy resources that evaluates the full range of alternatives, 
including new generating capacity, power purchases, energy conservation 
and efficiency, cogeneration and district heating and cooling 
applications, and renewable energy resources, in order to provide 
adequate and reliable service to a customer's electric consumers.
    Integrated resource planning cooperative (IRP cooperative) means a 
group of Western's customers and/or their distribution or user members 
that Western has approved for IRP cooperative status.
    Member-based association (MBA) means:
    (1) An entity composed of utilities or user members, or
    (2) An entity that acts as an agent for, or subcontracts with, but 
does not assume power supply responsibility for its principals or 
subcontractors, who are its members.
    Minimum investment report means the report resulting from a 
mandatory minimum level of financial or resource investment in energy 
efficiency initiatives and/or renewable energy activities, such as 
investment of a set minimum percentage of the utility's gross revenues 
in renewable resources, which is imposed by State, Tribal, or Federal 
law upon a utility or other entity under its jurisdiction.
    Public benefits charge means a mandatory financial charge imposed 
by State, Tribal, or Federal law upon a utility under its jurisdiction 
to support one or more of the following: energy efficiency, 
conservation, or demand-side management; renewable energy; efficiency 
or alternative energy-related research and development; low-income 
energy assistance; and/or other programs defined by applicable State, 
Tribal, or Federal law. This term is also known as a public goods or 
system benefit charge in the utility industry.
    Region means a regional office or management center of Western: the 
Desert Southwest Customer Service Region, the Rocky Mountain Customer 
Service Region, the Sierra Nevada Customer Service Region, the Upper 
Great Plains Customer Service Region, or the Colorado River Storage 
Project Management Center.
    Renewable energy means any source of electricity that is self-
renewing, including plant-based biomass, waste-based biomass, 
geothermal, hydropower, ocean thermal, solar (active and passive), and 
wind. This term is also known as renewable resources in the utility 
industry.
    Small customer means a utility customer with total annual sales and 
usage of 25 gigawatthours (GWh) or less, as averaged over the previous 
5 years; or any end-use customer.
    Western means the Western Area Power Administration.

Subpart B--Integrated Resource Planning


Sec. 905.10  Who must comply with this part?

    (a) Integrated resource plans (IRP). Each customer of Western must 
address its power resource needs in an IRP prepared and submitted to 
Western as described in this part.
    (b) Alternatives to IRP. Alternatively, customers of Western may 
submit a small customer plan, minimum investment report, public 
benefits report, or EE/RE report as described in Secs. 905.16 through 
905.19 of this subpart.
    (c) Rural Utility Service and state utility commission reports. For 
customers subject to IRP filings or other electrical resource-use 
reports from the Rural Utilities Service or a state utility commission, 
there is nothing in this part that would require a customer to take any 
action inconsistent with those requirements.


Sec. 905.11  What must an IRP include?

    (a) General. An integrated resource plan supports customer-
developed goals and schedules. The plan must take into account 
necessary features for system operation, such as diversity, 
reliability, dispatchability, and other factors of risk; must take into 
account the ability to verify energy savings achieved through energy 
efficiency and the projected durability of such savings measured over 
time; and must treat demand and supply resources on a consistent and 
integrated basis.
    (b) IRP criteria. IRPs must consider electrical energy resource 
needs and may consider, at the customer's option, water, natural gas, 
and other energy resources. Each IRP submitted to Western must include:
    (1) Identification of resource options. Identification and 
comparison of all practicable energy efficiency and energy supply 
resource options. This is an assessment and comparison of existing and 
future supply- and demand-side resource options available to a customer 
based upon its size, type, resource needs, geographic area, and 
competitive situation. Resource options evaluated by the specific 
customer must be identified. The options evaluated should relate to the 
resource situation unique to each Western customer as determined by 
profile data (such as service area, geographical characteristics, 
customer mix, historical loads, projected growth, existing system data, 
rates, and financial information) and load forecasts. Specific details 
of the customer's resource comparison need not be provided in the IRP 
itself. They must, however, be made available to Western upon request.
    (i) Supply-side options include, but are not limited to, purchased 
power contracts and conventional and renewable generation options.
    (ii) Demand-side options alter the customer's use pattern in a 
manner that provides for an improved combination of energy services to 
the customer and the ultimate consumer.
    (iii) Considerations that may be used to develop the potential 
options include cost, market potential, consumer preferences, 
environmental impacts, demand or energy impacts, implementation issues, 
revenue impacts, and commercial availability.
    (iv) The IRP discussion of resource options must describe the 
options chosen by the customer. The IRP may strike a reasonable balance 
among the applicable resource evaluation factors. It should clearly 
demonstrate that decisions were based on a reasonable analysis of 
resource options and environmental effects, were based on public input, 
and/or were required by State, Tribal, or Federal mandates.
    (2) Action plan. An IRP must include an action plan describing 
specific actions the customer will take to implement its IRP.
    (i) The IRP must state the time period that the action plan covers, 
and the action plan must be updated and resubmitted to Western when 
this time period expires. The customer may submit a revised action plan 
with the annual IRP progress report discussed in Sec. 905.15.
    (ii) For those customers not experiencing or anticipating load 
growth, the action plan requirement for the IRP may be satisfied by a 
discussion of current actions and procedures in place to periodically 
reevaluate the possible future need for new resources. The action plan 
must include a summary of:

[[Page 62608]]

    (A) Actions the customer expects to take in accomplishing the goals 
identified in the IRP;
    (B) Milestones to evaluate accomplishment of those actions during 
implementation; and
    (C) Estimated energy and capacity benefits for each action planned.
    (3) Environmental effects. The customer must minimize adverse 
environmental effects of new resource acquisitions and document these 
efforts in the IRP. Customers are neither precluded from nor required 
to include a quantitative analysis of environmental externalities as 
part of the IRP process. IRPs must include a qualitative analysis of 
environmental effects in summary format.
    (4) Public participation. The customer must provide for full public 
participation in the preparation and development of an IRP (or any 
revision or amendment of an IRP). The IRP must include a brief 
description of public involvement activities, including how the 
customer gathered information from the public, identified public 
concerns, shared information with the public, and responded to public 
comments. Customers must make additional documentation identifying or 
supporting the full public process available to Western upon request.
    (i) As part of the public participation process, the governing body 
of an MBA and each MBA member (such as a board of directors or city 
council) must approve the IRP, confirming that all requirements have 
been met. To indicate approval, a responsible official must sign the 
IRP submitted to Western or the customer must document passage of an 
approval resolution by the appropriate governing body included or 
referred to in the IRP.
    (ii) For Western customers that do not purchase electricity for 
resale, such as some State, Tribal, and Federal agencies, the customer 
can satisfy public participation if there is review and concurrence by 
a top management official with resource acquisition responsibility. The 
customer must note this concurrence in the IRP.
    (5) Load forecasting. An IRP must include a statement that load 
forecasting was conducted. Load forecasting should include data that 
reflects the size, type, resource conditions, and demographic nature of 
the customer using an accepted load forecasting methodology, including 
but not limited to the time series, end-use, and econometric methods. 
The customer must make the load forecasting data available to Western 
upon request.
    (6) Measurement strategies. The IRP must include a brief 
description of measurement strategies for options identified in the IRP 
in order to determine whether objectives in the IRP are being met. 
These validation methods must include identification of the baseline 
from which a customer will measure the benefits of its IRP 
implementation. A reasonable balance may be struck between the cost of 
data collection and the benefits resulting from obtaining exact 
information. Customers must make performance validation and evaluation 
data available to Western upon request.


Sec. 905.12  How must IRPs be submitted?

    (a) Number of IRPs submitted. Only one IRP is required per 
customer, regardless of the number of long-term firm power contracts 
between the customer and Western.
    (b) Method of submitting IRPs. Customers must submit IRPs to 
Western under one of the following options:
    (1) Customers may submit IRPs individually.
    (2) MBAs may submit individual IRPs for each of their members or 
submit one IRP on behalf of all or some of their members. An IRP 
submitted by an MBA must specify the responsibilities and participation 
levels of individual members and the MBA. Any member of an MBA may 
submit an individual IRP to Western instead of inclusion in an MBA IRP.
    (3) Customers may submit IRPs as IRP cooperatives when previously 
approved by Western.
    (c) Alternatives to submitting individual IRPs. Customers that 
Western approves for submittal of small customer plans, minimum 
investment reports, public benefits reports, or EE/RE reports may 
substitute the applicable plan or report instead of an IRP. Each 
customer that intends to seek approval for IRP cooperative, small 
customer, minimum investment report, public benefits report, or EE/RE 
report status must provide written notification to Western. A new 
customer must provide this notification to the Western Regional Manager 
of the Region in which the customer is located within 30 days from the 
time it becomes a customer. Any customer may resubmit an IRP or notify 
Western of its plan to change its compliance method at any time so long 
as there is no period of noncompliance between this part and Western's 
IRP regulations in effect before [effective date of the final rule] 
(and contained in the 10 CFR, part 500 to end, edition revised as of 
January 1, 1999).


Sec. 905.13  When must IRPs be submitted?

    (a) Submitting the initial IRP. Except as provided in paragraph (d) 
of this section, customers that have not previously submitted IRPs must 
submit their initial IRP to the appropriate Regional Manager no later 
than 1 year after [the effective date of the final rule], or after 
becoming a customer, whichever is later. Customers already complying 
with Western's IRP regulations in effect before [effective date of the 
final rule] (and contained in the 10 CFR, part 500 to end, edition 
revised as of January 1, 1999) must maintain their current submission 
and resubmission schedules.
    (b) Western's review of IRPs. If an IRP submittal is insufficient, 
Western will provide a notice of deficiencies to the entity that 
submitted the IRP. Western, working together with the entity, will 
determine the time allowable for resubmitting the IRP. However, the 
time allowed for resubmittal will not be greater than 9 months after 
the date of the disapproval, unless otherwise provided by contract 
language in effect as of [the effective date of the final rule].
    (c) Updates and amendments to IRPs. Customers must submit updated 
IRPs to the appropriate Regional Manager every 5 years after Western's 
approval of the initial IRP. Customers may submit amendments and 
revisions to IRPs at any time.
    (d) IRP cooperatives. Customers that have geographic, resource 
supply, and other similarities may join together and request, in 
writing, Western's approval to become an IRP cooperative. Western will 
respond to IRP cooperative status requests within 30 days of receipt of 
the request. If Western disapproves a request for IRP cooperative 
status, the requesting participants must maintain their currently 
applicable integrated resource or small customer plans, or submit their 
initial IRPs no later than 1 year after the date of the letter of 
disapproval. Western's approval of IRP cooperative status will not be 
based on any potential participant's contractual status with Western. 
Each IRP cooperative must submit an IRP for its participants within 18 
months after Western's approval of IRP cooperative status.


Sec. 905.14  What are the criteria for Western's approval of IRPs?

    (a) Approval criteria. Western will approve plans and reports based 
upon:
    (1) Whether the plan or report satisfactorily addresses the 
criteria in this part; and
    (2) The reasonableness of the plan or report given the size, type, 
resource needs, geographic area, and competitive situation of the 
customer.
    (b) Review of resource choices. Western will review resource 
choices in

[[Page 62609]]

accordance with section 114 of EPAct and this subpart. Western will 
disapprove IRPs if resource choices do not meet the reasonableness test 
in paragraph (a)(2) of this section and the provisions of section 114 
of EPAct.
    (c) Accepting IRPs under other initiatives. If a customer or group 
of customers implements integrated resource planning under a program 
responding to other Federal, Tribal, or State initiatives, Western will 
accept and approve the plan as long as it substantially complies with 
the requirements of this subpart.
    (d) Water-based plans and reports. In evaluating a plan or report, 
Western will consider water planning, efficiency improvements, and 
conservation in the same manner it considers energy planning and 
efficiencies. Customers that provide water utility services and 
customers that service irrigation load as part of their overall load 
may include water conservation activities in the plan or report. To the 
extent practicable, customers should convert their water savings to 
energy values.


Sec. 905.15  What are annual IRP progress reports?

    Customers must submit IRP progress reports each year within 30 days 
of the anniversary date of the approval of the currently applicable 
IRP. The reports must describe the customer's accomplishments achieved 
under the action plan, including projected goals and implementation 
schedules, and energy and capacity benefits and renewable energy 
developments achieved as compared to those anticipated. Western prefers 
measured values, but will accept reasonable estimates if measurement is 
infeasible or not cost-effective. Instead of a separate progress 
report, the customer may use any other annual report that the customer 
submits to Western or another entity, at the customer's discretion, if 
that report contains all required data for the previous full year and 
is submitted within 30 days of the approval anniversary date of the 
currently applicable IRP. With Western's approval, customers may submit 
reports outside of the 30-day anniversary date window.


Sec. 905.16  What are the requirements for the small customer plan 
alternative?

    (a) Requesting small customer status. Small customers may submit a 
request to prepare a small customer plan instead of an IRP. Requests 
for small customer status from electric utilities must include data on 
total annual energy sales and usage for the 5 years prior to the 
request. Western will average this data to determine overall annual 
energy sales and usage so that uncontrollable events, such as extreme 
weather, do not distort levelized energy sales and usage. Requests from 
end-use customers must only document that the customer does not 
purchase electricity for resale. Western will respond to small customer 
status requests within 30 days of receipt of the request. If Western 
disapproves a request, the customer must maintain its currently 
applicable IRP, or submit its initial IRP no later than 1 year after 
the date of the letter of disapproval. Alternatively, the customer may 
submit a request for minimum investment report, public benefits report, 
or EE/RE report status, as appropriate.
    (b) Small customer plan contents. Small customer plans must:
    (1) Consider all reasonable opportunities to meet future energy 
service requirements using demand-side management techniques, new 
renewable resources, and other programs that provide retail consumers 
with electricity at reasonable cost;
    (2) Minimize, to the extent practicable, adverse environmental 
effects; and
    (3) Present in summary form the following information:
    (i) Customer name, address, phone number, e-mail and Website if 
applicable, and contact person;
    (ii) Type of customer;
    (iii) Current energy and demand profiles and data on total annual 
energy sales and usage for the previous 5 years for utility customers, 
or current energy and demand use for end-use customers;
    (iv) Future energy services projections;
    (v) How paragraphs (b)(1) and (b)(2) of this section were 
considered; and
    (vi) Actions to be implemented over the customer's planning 
timeframe.
    (c) When to submit small customer plans. Small customers must 
submit the first small customer plan to the appropriate Western 
Regional Manager within 1 year after Western's approval of the request 
for small customer status. Small customers must submit in writing a 
small customer plan every 5 years.
    (d) Maintaining small customer status.
    (1) Every year on the anniversary of Western's approval of the 
plan, small customers must submit a letter to Western verifying that 
either their annual energy sales and usage is 25 GWh or less averaged 
over the previous 5 years, or they continue to be end-use customers. 
The letter must also identify their achievements against their targeted 
action plans, as well as the revised summary of actions if the previous 
summary of actions has expired.
    (2) Western will use the letter for overall program evaluation and 
comparison with the customer's plan, and for verification of continued 
small customer status. Customers may submit annual update letters 
outside of the anniversary date if previously agreed to by Western so 
long as the letter contains all required data for the previous full 
year.
    (e) Losing eligibility for small customer status.
    (1) A customer ceases to be a small customer if it:
    (i) Is a utility and exceeds total annual energy sales and usage of 
25 GWh, as averaged over the previous 5 years; or
    (ii) Is no longer an end-use customer.
    (2) Western will work with a customer who loses small customer 
status to develop an appropriate schedule for submittal of an IRP or 
other report required under this subpart.


Sec. 905.17  What are the requirements for the minimum investment 
report alternative?

    (a) Request to submit the minimum investment report. Customers may 
submit a request to prepare a minimum investment report instead of an 
IRP. Requests to submit minimum investment reports must include data 
on:
    (1) The source of the minimum investment requirement (number, 
title, date, and jurisdiction of law);
    (2) The initial, annual, and other reporting requirement(s) of the 
mandate, if any; and
    (3) The mandated minimum level of investment for energy efficiency 
and/or renewable energy.
    (b) Minimum investment requirement. The minimum investment must be 
a mandatory set percentage of customer gross revenues or other specific 
minimum investment in energy efficiency and/or renewable energy 
mandated by a State, Tribal, or Federal Government with jurisdictional 
authority.
    (c) Western's response to minimum investment report requests. 
Western will respond to requests to accept minimum investment reports 
within 30 days of receipt of the request. If Western disapproves a 
request to allow use of the minimum investment report, the customer 
must maintain its currently applicable IRP or small customer plan, or 
submit its initial IRP no later than 1 year after the date of the 
letter of disapproval. Alternatively, the customer may submit a request 
for small customer plan, public benefits report, or EE/RE report 
status, as appropriate.
    (d) Minimum investment report contents. Reports documenting 
compliance with a minimum level of

[[Page 62610]]

investment in energy efficiency and/or renewable energy must include:
    (1) Customer name, address, phone number, email and Website if 
applicable, and contact person;
    (2) Authority or requirement to undertake a minimum investment, 
including the source of the minimum investment requirement (number, 
title, date, and jurisdiction of law); and
    (3) A description of the minimum investment, including:
    (i) Minimum percentage or other minimum requirement for energy 
efficiency and/or renewable energy;
    (ii) Actual or estimated energy and/or capacity savings resulting 
from minimum investments in energy efficiency, if known;
    (iii) Actual or estimated energy and/or capacity resulting from 
minimum investments in renewable energy, if known; and
    (iv) A description of the energy efficiency and/or renewable energy 
activities to be undertaken over the next 2 years as a result of the 
requirement for minimum investment in energy efficiency and/or 
renewable energy, if known.
    (e) Minimum investment report approval. Western will approve the 
minimum investment report when it meets the requirements in paragraph 
(d) of this section.
    (f) When to submit the minimum investment report. The customer must 
submit the first minimum investment report to the appropriate Western 
Regional Manager within 1 year after Western's approval of the request 
to accept the minimum investment report. Customers choosing this option 
must maintain IRP or small customer plan compliance with Western's IRP 
regulations in effect before [effective date of the final rule] (and 
contained in the 10 CFR, part 500 to end, edition revised as of January 
1, 1999) including annual progress reports or update letters, until 
submitting the first minimum investment report to ensure there is no 
gap in compliance with section 114 of EPAct.
    (g) Maintaining minimum investment reports. (1) Every year on the 
anniversary of Western's approval of the first minimum investment 
report, customers choosing this option must submit a letter to Western 
verifying that they remain in compliance with the minimum investment 
requirement. The letter must also contain summary information 
identifying energy and capacity savings associated with minimum 
investments in energy efficiency, if known, and energy and capacity 
associated with minimum investments in renewable energy, if known.
    (2) Western will use the letter for overall program evaluation and 
to ensure customers remain in compliance. Customers may submit letters 
outside of the anniversary date if previously agreed to by Western if 
the letter contains all required data for the previous full year. 
Instead of a separate letter, a customer choosing this option may 
submit the State, Tribal, or Federal required annual report documenting 
the minimum investment and associated energy efficiency and/or 
renewable energy savings and/or use, if known.
    (h) Loss of eligibility to submit the minimum investment report. 
(1) A customer ceases to be eligible to submit a minimum investment 
report if:
    (i) A State, Tribal, or Federal mandate no longer applies to the 
customer, or
    (ii) The customer does not comply with the minimum level of 
investment in applicable State, Tribal, or Federal law.
    (2) Western will work with a customer that is no longer eligible to 
submit a minimum investment report to develop an appropriate schedule 
for submittal of an IRP or other report required under this subpart.


Sec. 905.18  What are the requirements for the public benefits report 
alternative?

    (a) Requests to submit a public benefits report. Customers may 
submit a request to prepare a public benefits report instead of an IRP. 
Requests to submit public benefits reports must include data on:
    (1) The source of the public benefits requirement (number, title, 
date, and jurisdiction of law);
    (2) The initial, annual, and other reporting requirement(s) of the 
program, if any; and
    (3) The required public benefits charge, including charges to be 
collected for and spent on energy efficiency, conservation, or demand-
side management; renewable energy; efficiency and alternative energy-
related research and development; low-income energy assistance; and any 
other applicable public benefits category.
    (b) Public benefits requirement. Participation in a public benefits 
program requires either a mandatory set percentage of customer gross 
revenues or other specific charges to be applied toward the programs as 
determined by the applicable State, Tribal, or Federal authority. The 
revenues from the public benefits charge may be expended directly by 
the customer, or by another entity on behalf of the customer as 
determined by the applicable State, Tribal, or Federal authority.
    (c) Western's response to public benefits report requests. Western 
will respond to requests to accept a public benefits report within 30 
days of receipt of the request. If Western disapproves a request to 
allow use of the public benefits report, the requesting customer must 
maintain its currently applicable IRP or small customer plan, or submit 
its initial IRP no later than 1 year after the date of the letter of 
disapproval. Alternatively, the customer may submit a request for small 
customer plan, minimum investment report, or EE/RE report status, as 
appropriate.
    (d) Public benefits report contents. Reports documenting 
participation in a public benefits program must include:
    (1) Customer name, address, phone number, email and Website if 
applicable, and contact person;
    (2) Authority or requirement to participate in a public benefits 
program, including the source of the public benefits requirement 
(number, title, date, and jurisdiction of law); and
    (3) A description of the public benefits program, including:
    (i) Overall public benefits charge, whether minimum investment or 
other set charge, including charges to be collected for and spent on 
energy efficiency, conservation, or demand-side management; renewable 
energy; efficiency or alternative energy-related research and 
development; low-income energy assistance; and any other applicable 
public benefits categories;
    (ii) Actual or estimated energy and/or capacity savings associated 
with energy efficiency and resulting from participation in the public 
benefits program, if known;
    (iii) Actual or estimated energy and/or capacity associated with 
renewable energy and resulting from participation in the public 
benefits program, if known;
    (iv) A description of the energy efficiency and renewable energy 
activities to be undertaken by the customer over the next 2 years as a 
result of participation in the public benefits program, if known.
    (e) Public benefits report approval. Western will approve the 
public benefits report when it meets the requirements in paragraph (d) 
of this section.
    (f) When to submit the public benefits report. The customer must 
submit the first public benefits report to the appropriate Western 
Regional Manager within 1 year after Western's approval of the request 
to prepare the public benefits report. Customers choosing this option 
must maintain IRP or small customer plan compliance with Western's IRP 
regulations in effect

[[Page 62611]]

before [effective date of the final rule] (and contained in the 10 CFR, 
part 500 to end, edition revised as of January 1, 1999), including 
annual progress reports or update letters, until submitting the first 
public benefits report to ensure there is no gap in compliance with 
section 114 of EPAct.
    (g) Maintaining the public benefits report. (1) Every year on the 
anniversary of Western's approval of the first public benefits report, 
customers choosing this option must submit a letter to Western:
    (i) Verifying that they remain in compliance with the public 
benefits program; and
    (ii) Identifying energy and capacity savings associated with energy 
efficiency, and energy and capacity associated with renewable energy, 
for the customer's public benefits contribution, if known.
    (2) Western will use the letter for overall program evaluation and 
to ensure customers remain in compliance. Customers may submit letters 
outside of the anniversary date if previously agreed to by Western if 
the letter contains all required data for the previous full year. 
Instead of a separate letter, a customer choosing this option may 
submit the State, Tribal, or Federal required annual report documenting 
the public benefits charge and associated customer energy efficiency 
and/or renewable energy savings and/or use, if known.
    (h) Loss of eligibility to submit the public benefits report. (1) A 
customer ceases to be eligible to submit a public benefits report if:
    (i) A State, Tribal, or Federal mandate no longer applies to the 
customer, or
    (ii) The customer does not comply with the public benefits 
requirement in applicable State, Tribal, or Federal law.
    (2) Western will work with a customer that is no longer eligible to 
submit a public benefits report to develop an appropriate schedule for 
submittal of an IRP or other report required by this subpart.


Sec. 905.19  What are the requirements for the energy efficiency and/or 
renewable energy report (EE/RE report) alternative?

    (a) Requests to submit an EE/RE report. Customers may submit a 
request to prepare an EE/RE report instead of an IRP. Requests to 
submit EE/RE reports must include data on:
    (1) The source of the EE/RE reporting requirement (number, title, 
date, and jurisdiction of law);
    (2) The initial, annual, and other reporting requirement(s) of the 
report; and
    (3) A summary outline of the EE/RE report's required data or 
components, including any requirements for documenting customer energy 
efficiency and renewable energy activities.
    (b) EE/RE report requirement. The EE/RE report may include only 
electrical resource use and subsequent energy efficiency and/or 
renewable energy activities, or may additionally include other utility 
resource information, such as water and natural gas data. At a minimum, 
the EE/RE report must annually document energy efficiency and/or 
renewable energy activities undertaken by the customer.
    (c) Western's response to EE/RE report requests. Western will 
respond to requests to accept EE/RE reports within 30 days of receipt 
of the request. If Western disapproves a request to allow use of the 
EE/RE report, the customer must maintain its currently applicable IRP 
or small customer plan, or submit its initial IRP no later than 1 year 
after the date of the letter of disapproval. Alternatively, the 
customer may submit a request for small customer plan, minimum 
investment report, or public benefits report status, as appropriate, 
within 30 days after the date of the letter of disapproval.
    (d) EE/RE report contents. EE/RE reports must include:
    (1) Customer name, address, phone number, email and Website if 
applicable, and contact person;
    (2) Authority or requirement to complete the EE/RE report, 
including the source of the requirement (number, title, date, and 
jurisdiction of law); and
    (3) A description of the customer's required energy efficiency and/
or renewable energy activities, including:
    (i) Level of investment or expenditure in energy efficiency and/or 
renewable energy, and quantifiable energy savings or use goals, if 
defined by the EE/RE reporting requirement;
    (ii) Actual or estimated energy and/or capacity savings, if any, 
associated with energy efficiency and resulting from the EE/RE 
reporting requirement;
    (iii) Actual or estimated energy and/or capacity, if any, 
associated with renewable energy and resulting from the EE/RE reporting 
requirement;
    (iv) A description of the energy efficiency and/or renewable energy 
activities to be undertaken over the next 2 years as a result of the 
EE/RE reporting requirement.
    (e) EE/RE report approval. Western will approve the EE/RE report 
when the report meets the requirements in paragraph (d) of this 
section.
    (f) When to submit the EE/RE report. The customer must submit the 
first EE/RE report to the appropriate Western Regional Manager within 1 
year after Western's approval of the request to accept the EE/RE 
report. Customers choosing this option must maintain IRP or small 
customer plan compliance with Western's IRP regulations in effect 
before [effective date of the final rule] (and contained in the 10 CFR, 
part 500 to end, edition revised as of January 1, 1999), including 
annual progress reports or update letters, until submitting the first 
EE/RE report to ensure there is no gap in compliance with section 114 
of EPAct.
    (g) Maintaining EE/RE reports.
    (1) Every year on the anniversary of Western's approval of the 
first EE/RE report, customers choosing this option must submit an 
annual EE/RE report to Western. The report must contain summary 
information identifying customer energy and capacity savings associated 
with energy efficiency, if any, and customer energy and capacity 
associated with renewable energy, if any. If this information is not 
contained in the EE/RE report, the customer must submit this 
information with the report as a separate letter. The letter must also 
verify that the customer remains in compliance with the EE/RE reporting 
requirement.
    (2) Customers may submit annual EE/RE reports outside of the 
anniversary date if previously agreed to by Western if the report 
contains all required data for the previous full year.
    (h) Loss of eligibility to submit the EE/RE report. (1) A customer 
ceases to be eligible to submit a EE/RE report if:
    (i) The EE/RE reporting requirement no longer applies to the 
customer, or
    (ii) The customer does not comply with the EE/RE reporting 
requirements in applicable State, Tribal, or Federal law.
    (2) Western will work with a customer that is no longer eligible to 
submit an EE/RE report to develop an appropriate schedule for submittal 
of an IRP or other report required under this subpart.


Sec. 905.20  How are plans and reports processed?

    Western will review all plans and reports submitted under this 
subpart and notify the submitting entity of the plan's or report's 
acceptability within 120 days after receipt.


Sec. 905.21  When are customers in noncompliance with this part, and 
how does Western ensure compliance?

    (a) Penalties for noncompliance. Western will impose a penalty on 
the long-term firm power customer for failure to submit or resubmit an 
IRP and action plan, small customer plan, minimum investment report, 
public benefits report, or EE/RE report as required by this subpart. 
Western will

[[Page 62612]]

also impose a penalty when the customer's activities are not consistent 
with the applicable plan or report unless Western finds that a good 
faith effort has been made to comply with the approved plan or report.
    (b) Good faith effort to comply. If it appears that a customer's 
activities may be inconsistent with the applicable plan or report, 
Western will notify the customer and offer the customer 30 days to 
provide evidence of its good faith effort to comply. If the customer 
does not correct the specified deficiency or submit such evidence, or 
if Western finds, after receipt of information from the customer, that 
a good faith effort has not been made, Western will impose a penalty.
    (c) Written notification of penalty. Western must provide written 
notice of the imposition of a penalty to the customer, and to the MBA 
or IRP cooperative when applicable. The notice will specify the reasons 
for imposition of the penalty.
    (d) Imposition of penalty. (1) Beginning with the first full 
billing period following the notice specified in paragraph (c) of this 
section, Western will impose a surcharge of 10 percent of the monthly 
power charges until the deficiency specified in the notice is cured, or 
until 12 months pass. However, Western will not immediately impose a 
penalty if the customer or its MBA or IRP cooperative requests 
reconsideration by filing a written appeal under Sec. 905.22.
    (2) The surcharge increases to 20 percent for the second 12 months 
and to 30 percent per year thereafter until the deficiency is cured.
    (3) After the first 12 months of imposition of the surcharge and 
instead of imposing any further surcharge, Western may impose a penalty 
that would reduce the resource delivered under a customer's long-term 
firm power contract(s) by 10 percent. Western may impose this resource 
reduction either:
    (i) When it appears to be more effective to ensure customer 
compliance, or
    (ii) When such reduction may be more cost-effective for Western.
    (4) The penalty provisions in existing contracts will continue to 
be in effect and administered and enforced according to applicable 
contract provisions.
    (e) Assessing and ceasing penalties. Western will assess the 
surcharge on the total charges for all power obtained by a customer 
from Western and will not be limited to surcharges on only firm power 
sales. When a customer resolves the deficiencies, Western will cease 
imposing the penalty, beginning with the first full billing period 
after compliance is achieved.
    (f) Penalties on MBAs and IRP cooperatives. In situations involving 
an IRP submitted by an MBA on behalf of its members where a single 
member does not comply, Western will impose a penalty upon the MBA on a 
pro rata basis in proportion to that member's share of the total MBA's 
power received from Western. In situations involving noncompliance by a 
participant of an IRP cooperative, Western will impose any applicable 
penalty directly upon that participant if it has a firm power contract 
with Western. If the IRP cooperative participant does not have a firm 
power contract with Western, then Western will impose a penalty upon 
the participant's MBA on a pro rata basis in proportion to that 
participant's share of the total MBA's power received from Western.


Sec. 905.22  What is the administrative appeal process?

    (a) Filing written appeals with Western. If a customer disagrees 
with Western's determination of the acceptability of its IRP, small 
customer plan, minimum investment report, public benefits report, or 
EE/RE report submittal, its compliance with an approved plan or report, 
or any other compliance issue, the customer may request reconsideration 
by filing a written appeal with the appropriate Regional Manager. 
Customers may submit appeals any time such disagreements occur and 
should be specific as to the nature of the issue, the reasons for the 
disagreement, and any other pertinent facts the customer believes 
should be brought to Western's attention. The Regional Manager will 
respond within 45 days of receipt of the appeal. If resolution is not 
achieved at the Regional Office level, the customer may appeal to the 
Administrator, who will respond within 30 days of receipt.
    (b) Alternative dispute resolution. Upon request, Western will 
agree to use mutually agreeable alternative dispute resolution 
procedures, to the extent allowed by law, to resolve issues or disputes 
relating to compliance with this part.
    (c) Imposition of penalty during appeal. Western will not impose a 
penalty while an appeal process is pending. However, if the appeal is 
unsuccessful for the customer, Western will impose the penalty 
retroactively from the date the penalty would have been assessed if an 
appeal had not been filed.
    (d) Meeting other requirements during appeal process. A written 
appeal or use of alternative dispute resolution procedures does not 
suspend other reporting and compliance requirements under this part.


Sec. 905.23  How does Western periodically review plans and reports?

    (a) Periodic review of customer actions. Western will periodically 
review customer actions to determine whether they are consistent with 
the approved IRP, minimum investment report, or public benefits report. 
Small customer plans and EE/RE reports are not subject to this periodic 
review.
    (b) Reviewing representative samples of plans and reports. Western 
will periodically review a representative sample of IRPs, minimum 
investment reports, and public benefits reports, and the customer's 
implementation of the applicable plan or report from each of its 
marketing areas. The samples will reflect the diverse characteristics 
and circumstances of the customers that purchase power from Western. 
These reviews will be in addition to, and separate and apart from, the 
review of initial and updated IRPs, minimum investment reports, and 
public benefits reports to ensure compliance with this subpart.
    (c) Scope of periodic reviews. Periodic reviews may consist of any 
combination of review of the customer's annual IRP progress reports, 
minimum investment letters, or public benefits letters, telephone 
interviews, or on-site visits. Western will document these periodic 
reviews and may report on the results of the reviews in Western's 
annual report.


Sec. 905.24  What are the opportunities for using the Freedom of 
Information Act to request data?

    IRPs, small customer plans, minimum investment reports, public 
benefits reports, and EE/RE reports and associated data submitted to 
Western are subject to the Freedom of Information Act (FOIA) and may be 
made available to the public upon request. Customers may request 
confidential treatment of all or part of a submitted document under 
FOIA's exemption for confidential business information found in 10 CFR 
1004.11. Western will make its own determination whether particular 
information is exempt from public access and, if so, Western will treat 
this information as confidential and not disclose it to the public.


Sec. 905.25  How often is this program reviewed?

    At appropriate intervals, Western may initiate a public process to 
review the regulations in this part to determine whether they should be 
revised to

[[Page 62613]]

reflect changes in technology, needs, or other developments.

[FR Doc. 99-29675 Filed 11-16-99; 8:45 am]
BILLING CODE 6450-01-P