[Federal Register Volume 72, Number 161 (Tuesday, August 21, 2007)]
[Proposed Rules]
[Pages 46570-46572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16477]


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DEPARTMENT OF ENERGY

Western Area Power Administration

10 CFR Part 905

RIN 1901-AB24


Energy Planning and Management Program; Integrated Resource 
Planning Approval Criteria

AGENCY: Western Area Power Administration, Department of Energy (DOE).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Western Area Power Administration (Western) is proposing 
changes to current regulations that require customers to prepare 
integrated resource plans (IRP). Western is proposing to facilitate 
public review of customer IRPs by making them more readily available, 
such as by posting customer IRPs on Western's external Web site. 
Western is also proposing language to encourage participation in 
regional IRPs by customers who may not be members of a member-based 
association (MBA). Finally, Western proposes to modify the requirement 
that each member of an MBA approve the IRP. Publication of this Federal 
Register notice begins the formal process for the proposed regulation 
revisions.

DATES: The comment period begins today and will end November 19, 2007. 
Western will present a detailed explanation of the proposed revisions 
to its current regulations and accept oral and written comments at a 
joint public information and public comment forum. The public forum 
will be held on the following date: September 6, 2007, 1 p.m. MDT, 
Denver, CO. Western will accept written comments any time during the 
comment period.

ADDRESSES: Send written comments to Ron Horstman, Energy Services 
Specialist, Western Area Power Administration, P.O. Box 281213, 
Lakewood, CO 80228-8213. Comments may be sent by fax to (720) 962-7427 
or by electronic mail to [email protected]. Western will post 
information about the public process on its Web site at http://www.wapa.gov. Western will post official comments received via letter 
and e-mail to its Web site after the close of the comment period. 
Western must receive written comments by the end of the comment period 
to ensure they are considered in Western's decision process.
    The public forum location will be the Radisson Hotel Denver 
Stapleton Plaza, 3333 Quebec Street, Denver, Colorado 80207.

FOR FURTHER INFORMATION CONTACT: Project manager-Ron Horstman, (720) 
962-7419, e-mail [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction and Discussion of Proposal

    Section 114 of the Energy Policy Act of 1992 (EPAct), Public Law 
102-486, amended the Hoover Power Plant Act of 1984 (42 U.S.C. 7275-
7276) to require integrated resource planning by Western's customers. 
Western implemented section 114 of EPAct through completion of the 
Energy Planning and Management Program (Program) in October 1995. 60 FR 
54151 (October 20, 1995). The Program was revised in March of 2000 to 
allow customers more alternatives in meeting the IRP requirements. 65 
FR 16789 (March 30, 2000). Western's current regulations are published 
in the Code of Federal Regulations at 10 CFR part 905.
    Western is proposing to revise its IRP rule pursuant to 10 CFR 
905.24, which allows Western at appropriate intervals to initiate a 
public process to review and revise its regulations. Specifically, 
Western is proposing to change its IRP regulations in three respects. 
The first proposed change is to the public participation requirement 
under 10 CFR 905.11 (b)(4). Given the large number of members of some 
MBAs and the diversity of the member's interests, Western proposes to 
eliminate the requirement that members of an MBA unanimously approve 
the IRP (10 CFR 905.11(b)(4)(i) ). Instead, Western proposes to require 
approval only by the governing body of an MBA, which serves the 
interests of each MBA member through the member's representation on the 
MBA board. Western is proposing no other changes to the full public 
participation requirement in section 905.11(b)(4).
    Secondly, Western is proposing to add a paragraph to section 
905.12(b) to encourage cooperation among customers in the preparation 
of regional IRPs by clarifying that such a regional approach is 
acceptable, with advance approval by Western, even if the participating

[[Page 46571]]

customers are not members of an MBA. Collaboration on transmission 
projects through a regional planning approach is particularly 
appropriate.
    Finally, consistent with the requirement for full public 
participation in the preparation, development, revision or amendment of 
an IRP, Western proposes to make current customer IRPs more readily 
available to the public, such as by posting such documents on Western's 
external Web site. Customers may continue to request confidential 
treatment of sensitive information covered by an exemption in the 
Freedom of Information Act when the IRP is filed with Western. If 
Western agrees, the sensitive information will be redacted and not 
released. This proposal is in response to feedback from interested 
parties that IRPs prepared by Western's customers are more difficult to 
obtain than investor-owned utility IRPs. Western is proposing to 
clarify its ability to release customer IRPs in section 905.23.

II. Procedural and Regulatory Review Requirements

A. Review Under Executive Order 12866

    Western has an exemption from centralized regulatory review under 
Executive Order 12866, ``Regulatory Planning and Review,'' 58 FR 51735 
(October 4, 1993). Accordingly, this notice of proposed rulemaking was 
not reviewed by OMB under the Executive Order.

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 final rule is likely to have a significant economic impact on a 
substantial number of small entities and there is a legal requirement 
to issue a general notice of proposed rulemaking. The proposed rule 
would make a change to the process of approving IRPs; encourage 
cooperation among customers by clarifying that a regional approach 
including non-members may be approved by Western; and provide for 
making customer IRPs more readily available to the public, such as by 
posting on Western's Web site. Western is proposing no new substantive 
requirements, and the proposed rule, if promulgated as a final rule, 
would not have a significant economic impact on any entity. On this 
basis, Western's Administrator has certified that the proposed rule 
would have no significant economic impact on a substantial number of 
small entities.

C. Review Under the Paperwork Reduction Act

    No new information or record keeping requirements are imposed by 
this rulemaking. Accordingly, no OMB clearance is required under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

D. Review Under the National Environmental Policy Act of 1969

    In compliance with the National Environmental Policy Act of 1969 
(NEPA) (42 U.S.C. 4321, et seq.); the Council on Environmental Quality 
Regulations for implementing NEPA (40 CFR parts 1500-1508); and DOE 
NEPA Implementing Procedures and Guidelines (10 CFR part 1021), Western 
has determined this action is categorically excluded from preparing an 
environmental assessment or an environmental impact statement. This 
rulemaking would amend an existing regulation without changing the 
environmental effect of the regulation being amended and, therefore, is 
covered under the Categorical Exclusion in paragraph A5 to subpart D, 
10 CFR part 1021. Accordingly, neither an environmental assessment nor 
an environmental impact statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism'' (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 necessity for such actions. The Executive Order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations (65 FR 13735). Western has examined today's proposed rule 
and has 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 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 
Federal 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. Section 3(b) of Executive 
Order 12988 specifically requires that Federal 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 
Federal agencies to determine whether the regulations meet the 
applicable standards in section 3(a) and section 3(b), or 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, 
this proposed rule meets the relevant standards of Executive Order 
12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to assess the effects of a Federal 
regulatory action on State, local, and tribal governments, and the 
private sector. Western has determined that today's regulatory action 
does not impose a Federal mandate on State, local or tribal governments 
or on the private sector.

H. Review Under the 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 rule that may affect family well-being. 
This proposed rule would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, Western has 
concluded

[[Page 46572]]

that it is not necessary to prepare a Family Policymaking Assessment.

I. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by the Office of 
Management and Budget (OMB). OMB's guidelines were published at 67 FR 
8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 
62446 (October 7, 2002). Western has reviewed today's notice under the 
OMB and DOE guidelines and has concluded that it is consistent with 
applicable policies in those guidelines.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001), requires Federal agencies to prepare and submit 
to the Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as: (1) Any action by an agency that promulgated or is expected to lead 
to promulgation of a final rule; (2) is a significant regulatory action 
under Executive Order 12866, or any successor order; and (3) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy, or is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. Today's regulatory 
action is not a significant energy action. Accordingly, Western has not 
prepared a Statement of Energy Effects.

III. Public Comment Procedures

    Interested persons are invited to participate by submitting data, 
views, or arguments with respect to the proposed amendments to part 905 
set forth in this notice. Written comments should be submitted to the 
address indicated in the ADDRESSES section of this notice. All 
brochures, studies, comments, letters, memorandums, or other documents 
that Western initiates or uses to develop the proposed regulation 
revisions are available for inspection and copying at Western's 
Corporate Services Office in Lakewood, Colorado. Many of these 
documents and supporting information are also available on Western's 
Web site located at http://www.wapa.gov.
    Any information that a commenter considers to be confidential must 
be so identified and submitted in writing, one copy only. Western 
reserves the right to determine the appropriateness of confidential 
status for the information and to treat it in accordance with its 
determination.

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved the publication of today's 
proposed rule.

List of Subjects in 10 CFR Part 905

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

    Dated: August 6, 2007.
Timothy J. Meeks,
Administrator.

    For the reasons set forth in the supplementary information section, 
10 CFR part 905 is proposed to be amended as set forth below.

PART 905--ENERGY PLANNING AND MANAGEMENT PROGRAM

    1. The authority citation is revised to read as follows:

    Authority: 42 U.S.C. 7152, 7191; 42 U.S.C. 7275-7276c.


Sec.  905.11  [Amended]

    2. Section 905.11(b)(4)(i) is amended by removing ``and each MBA 
member (such as a board of directors or city council)''; and by 
removing ``included or referred to in the IRP''.
    3. Section 905.12 is amended by adding paragraph (b)(4) to read as 
follows:


Sec.  905.12  How must IRPs be submitted?

    (b) * * *
    (4) Customers may work together to develop and submit regional 
IRPs. Customers who wish to submit regional IRPs must first obtain 
approval by Western to do so. Regional IRPs must be approved 
individually by each participating customer prior to submittal of the 
IRP to Western.
* * * * *
    4. Section 905.23 is revised to read as follows:


Sec.  905.23  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 
applicable FOIA exemptions. Western's FOIA Officer will make his/her 
own determination whether particular information is exempt from public 
access. Western will not disclose to the public information it has 
determined to be exempt from disclosure under FOIA. Western will make 
customer IRPs available to the public, such as through posting them on 
Western's external Web site, subject to the same confidentiality 
determinations made in response to FOIA requests.

 [FR Doc. E7-16477 Filed 8-20-07; 8:45 am]
BILLING CODE 6450-01-P