[Federal Register Volume 73, Number 120 (Friday, June 20, 2008)]
[Rules and Regulations]
[Pages 35059-35062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14031]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 73, No. 120 / Friday, June 20, 2008 / Rules
and Regulations
[[Page 35059]]
DEPARTMENT OF ENERGY
Western Area Power Administration
10 CFR Part 905
RIN 1901-AB24
Energy Planning and Management Program; Integrated Resource
Planning Rules
AGENCY: Western Area Power Administration, DOE.
ACTION: Final rule; notice of decision.
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SUMMARY: The Western Area Power Administration (Western) is publishing
this final rule to adopt revisions to current regulations that require
customers to prepare integrated resource plans (IRP). These revisions
are the result of a periodic review of IRP regulations. On August 21,
2007, Western published a Federal Register notice proposing three
changes to its integrated resource planning rules. The first change
proposed to eliminate the requirement that a member-based association's
(MBA) members unanimously approve the MBA's IRP. Approval would only be
required by the MBA's governing body. The second change proposed
language to encourage customers to prepare regional IRPs even if a
customer is not a member of an MBA. The third change proposed to make
customer IRPs more readily available to the public by requiring
customers to post their IRPs on a publicly available Web site.
DATES: Effective Date: These regulations will become effective July 21,
2008.
FOR FURTHER INFORMATION CONTACT: Mr. Ron Horstman, Western Area Power
Administration, P.O. Box 281213, Lakewood, CO 80228-8213, phone 720-
962-7419, fax 720-962-7427, and e-mail [email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction and Background
II. Discussion of Comments
A. Overview
B. Approval of an MBA IRP
C. Regional IRPs
D. Public Availability of IRPs
E. Other Comments
III. Procedural Requirements
A. Determination Under 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. Review Under the Treasury and General Government
Appropriations Act of 1999
I. Review Under Executive Order 13084
J. Review Under the Small Business Regulatory Enforcement
Fairness Act of 1996
K. Approval of the Office of the Secretary
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 the Energy Planning and Management
Program (EPAMP) in October 1995. EPAMP was published in the Code of
Federal Regulations at 10 CFR part 905.
Western may periodically initiate a public process pursuant to 10
CFR 905.24 to review the IRP regulations to determine whether they
should be revised to reflect changes in technology, needs, or other
developments.
A public process to review the IRP regulations was initiated due to
recent changes in the electric utility industry. These changes include
an increase in the number of competitive resource options utilities
must consider, and the diversity and uniqueness of Western's customer
needs.
Western published a notice of proposed rulemaking in the Federal
Register on 72 FR 46570 August 21, 2007. A formal public information
and comment forum was held in Denver, Colorado on September 6, 2007.
The public comment period extended through November 19, 2007. Ten
Western customers submitted written comments. All comments were posted
on Western's Web site for public viewing. All comments were reviewed
and, where appropriate, incorporated into this final rule. The
following section entitled ``Discussion of Comments'' provides
Western's responses to all comments. Comments and related responses
were consolidated where possible.
II. Discussion of Comments
A. Overview
Representatives from the Platte River Power Authority and the
Colorado Association of Municipal Utilities provided comments for the
record at the public forum. Written comments were received from the
following nine entities by the comment deadline of November 19, 2007:
Colorado River Energy Distributors Association (CREDA), Delta-Montrose
Electric Association (Delta-Montrose), Irrigation & Electrical
Districts Association of Arizona (IEDA), Kansas Electric Power
Cooperative (KEPCo), Platte River Power Authority (Platte River), Salt
River Project (SRP), Tri-State Generation and Transmission Association
(Tri-State), Utah Associated Municipal Power Systems (UAMPS), and the
Utah Municipal Power Agency (UMPA). In addition, a comment letter was
received from the Arizona Municipal Power Users' Association (AMPUA)
after the end of the comment period. Western considered all the written
comments referenced above.
All of these comment letters, and a transcript of the public
meeting, can be found at: http://www.wapa.gov/es/irp/irpchanges.htm.
B. Approval of an MBA IRP
Western proposed to eliminate the requirement that members of an
MBA unanimously approve the MBA's IRP given the large number of members
of some MBAs and the diversity of the members' interests. Instead,
Western proposed to require approval only by the governing body of an
MBA, which serves the interests of each MBA member through
representation on the MBA board.
Comment: The majority of the comments received supported Western's
proposed change to the regulation. Platte River's comment letter in
particular describes why additional approval by each member is
inconsistent with Platte River's fundamental decision-making process.
Tri-State commented that approval of an IRP by each MBA member was a
[[Page 35060]]
duplicative process that was unnecessary and unwarranted.
Delta-Montrose opposed the proposed change, claiming that it would
lose its voice in the IRP development and approval process if
individual MBA members were denied the opportunity to approve the IRP.
Delta-Montrose contends that the proposed change would result in the
``averaging'' of its MBA's governors and deny it the opportunity to
promote issues that it believes are important.
Response: Western appreciates the support of Platte River, Tri-
State, and others and understands the concerns raised by Delta-
Montrose. Western notes that anyone, including an MBA member, can voice
its opinion on an MBA's IRP through the MBA's public participation
process, which is still required under Western's regulations. Moreover,
an MBA member's representative on the MBA's Board of Directors can
actively participate in board discussions of the IRP. 10 CFR part
905.12(b)(2) states that an IRP submitted by an MBA must specify the
participation level of individual members and also allows any member of
an MBA to submit an individual IRP instead of being included in an MBA
IRP. Accordingly, Western will adopt the proposed change to its
regulation.
C. Regional IRPs
Western proposed to add a paragraph to its IRP regulations to
encourage cooperation among customers in the preparation of regional
IRPs, with advance approval by Western, even if the participating
customers are not members of an MBA. Western stated in the proposed
rule that collaboration on transmission projects through a regional
planning approach is particularly appropriate.
Comment: Comments generally supported regional IRPs as long as this
compliance approach is optional and not mandatory. CREDA asked that any
proposed language on this issue be very explicit, with Western's
customers being given an opportunity to review and comment on the
language before it is adopted. Tri-State supported this initiative and
asked Western to clarify that this proposal is focused on collaborative
regional transmission planning.
Response: Western appreciates the commentators' general support of
this proposal. Western will adopt the proposed change by modifying
existing cooperative IRP regulations to clarify that regional IRPs,
though voluntary, are encouraged and that participants need not be
members of an MBA or a Western customer. Rather than adding explicit
language which could impede joint planning in ways that cannot be
readily foreseen or predicted, Western will draft relatively broad
language that will permit non-MBA members, with Western's advance
approval, to work cooperatively in preparing regional IRPs.
D. Public Availability of IRPs
Consistent with the requirement for full public participation in
the preparation, development, revision or amendment of an IRP, Western
proposed to make current customer IRPs more readily available to the
public such as by posting IRPs on Western's Web site. Western proposed
to continue to allow customers to request confidential treatment of
sensitive information covered by an exemption in the Freedom of
Information Act (FOIA) before the IRP is posted. If Western agrees, the
sensitive information would be redacted and not released when the IRP
is posted.
Comment: Customers expressed concern about third party access to
IRPs without the knowledge or consent of the submitting entity. AMPUA
and IEDA asked Western to provide assurance that any changes to EPAMP
rules were consistent with customer obligations under FERC Critical
Energy Infrastructure Information rules and Homeland Security and Rural
Utilities Service regulations. Several commenters insisted that
Western's regulations provide due process by offering IRP submitters an
opportunity to be heard and the right to appeal a decision by Western
to release information that the submitter believes is proprietary.
CREDA pointed out that this proposal is not mandated by EPAct 1992.
CREDA further commented that the existing EPAMP rule already requires a
customer to describe how it will share information with the public, and
that this requirement is sufficient to accomplish Western's goals.
CREDA stated that its membership had a variety of viewpoints on the
proposal, which led CREDA to recommend as a general rule that Web
postings of IRPs by Western only occur for those customers requesting
it. CREDA and others commented that customers, not Western, should make
the determination what information is considered proprietary or
confidential. This approach, they contend, would avoid placing Western
in an awkward or time-consuming position of determining what
information should or should not be redacted. CREDA, KEPCo and others
also warned that the proposal might result in additional direct and
indirect costs being borne by customers through power rates, as it
departs from the approach of assessing the costs of a FOIA request to
the requesting party. UMPA, IEDA and UAMPS supported CREDA's comments.
KEPCo commented that purchase power information (and contractual
terms and conditions) were more sensitive than in the past due to the
competitive nature of the wholesale power business. KEPCo also warned
that sensitive information could be excluded from a customer's IRP in
response to a greater risk of public exposure, therefore diluting the
value of the IRP to Western. KEPCo suggested that if a request for a
customer's IRP is made, Western should notify the customer of the
requesting party and the nature of the request prior to the release of
any information.
SRP stated it was willing to have its IRP posted to Western's
external Web site if proprietary and confidential information was not
posted. SRP agreed with other comments that customers, and not Western,
should determine what information is proprietary and confidential.
Tri-State pointed out that it has voluntarily posted its IRP on
Tri-State's Web site, but asked Western to be careful not to place
itself in the middle of communication between interested parties and
customers regarding IRPs.
IEDA asked Western to honor FOIA's national security exemption, and
to consider redrafting the proposed regulations with a further
opportunity for public review and comment.
Response: Western appreciates all the comments submitted on this
issue particularly with respect to the treatment of proprietary and
confidential information. FOIA regulations, which apply under Western's
existing IRP regulations, would continue to apply under the proposed
change. Western cannot waive its authority to decide what information
is released under FOIA regulations. Prior to releasing information to
the public, Western will continue to examine IRPs in light of
recognized FOIA exemptions that preclude the release of national
security information and confidential commercial or financial data,
among other exemptions. Western also notes that customers must continue
to develop their IRPs in an open process allowing for public
participation.
Western notes that the protocol under 10 CFR 1004.11 (Handling
information of a private business, foreign government, or an
international organization) remains in place and will be used in
determining the course of responding to a FOIA request.
[[Page 35061]]
Accordingly, Western will adopt a modification of the proposal to
make IRPs more readily available to the public by requiring IRPs to be
posted on either the customer's publicly available Web site or
Western's Web site. Customers that post on their own Web sites must
notify Western of this decision when they submit their IRP. Western
will create a hotlink on its Web site to IRPs posted on customer Web
sites, thereby giving interested parties ready access to those IRPs.
Western's Web site will, however, carry a disclaimer that an IRP posted
on a customer Web site may not duplicate the IRP that the customer
provided to Western. An interested party that seeks a copy of a
customer IRP filed with Western could submit a FOIA request to obtain
the document.
Western will post on its Web site the IRPs of customers that do not
post on their own Web sites. Prior to posting, however, Western will,
consistent with existing IRP and FOIA regulations, provide the customer
an opportunity to submit its views on whether information contained in
the IRP is exempt from the FOIA's mandatory public disclosure
requirements.
E. Other Comments
Comments: Tri-State raised two additional comments in its comment
letter, asking that additional changes be made to Western's IRP
regulations. Specifically, Tri-State asked that EPAMP be amended to
incorporate specific language recognizing the limited ability of
wholesale suppliers to influence retail demand. Tri-State also asked
that Western recognize the changing regulatory backdrop it faces, such
as adoption of a renewable portfolio standard in Colorado and a defined
level of expenditure for renewable resources requirement in New Mexico.
Tri-State pointed out how existing language in EPAMP requires a Western
customer with a service territory in multiple States to adopt the
highest requirement and apply it to all members. Tri-State believes
compliance with different State mandates seems to be impossible when
integrated with other regulatory requirements. Tri-State urged Western
to drop the multi-State requirement and eliminate additional and
duplicative requirements within the IRP regulations.
Response: These comments are outside the scope of this process.
III. Procedural Requirements
A. Determination Under Executive Order 12866
Western has an exemption from centralized regulatory review under
Executive Order 12866; accordingly, no clearance of this rulemaking by
the Office of Management and Budget (OMB) is required.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Analysis 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. Western's
Administrator certified that the proposal would have no significant
adverse impact on a substantial number of small entities because the
proposed revisions to these regulations streamline the IRP process,
encourage customers to realize the benefits of regional IRPs, and
protect customer sensitive IRP information. Western did not receive any
comments on this certification.
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
Western completed an environmental impact statement on EPAMP under
the National Environmental Policy Act of 1969 (NEPA). The Record of
Decision was published in the Federal Register on October 12, 1995 (60
FR 53181). Western's NEPA review assured all environmental effects
related to these actions have been analyzed.
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 determined that this final rule does not
preempt State law, does not have a substantial direct effect 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 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 regulations meet the relevant standards of Executive Order 12988.
H. Review Under the Treasury and General Government Appropriations Act
of 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277, 112 Stati 2691-528) requires Federal
agencies to issue a Family Policymaking Assessment for any proposed
rule that may affect family well-being. The final rule has no impact on
the autonomy or
[[Page 35062]]
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 amendments involved in
this rulemaking would not have such effects. Accordingly, Executive
Order 13084 does not apply to this rulemaking.
J. Review Under the Small Business Regulatory Enforcement Fairness Act
of 1996
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of the rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
K. Approval of the Office of the Secretary
The Secretary of Energy has approved the publication of today's
final rule.
List of Subjects in 10 CFR Part 905
Electric power, Electric utilities, Energy, Energy conservation,
Hydroelectric power and utilities, Reporting and recordkeeping
requirements, Resource planning.
0
For the reasons set forth in the preamble, 10 CFR part 905 is amended
as set forth below:
PART 905--ENERGY PLANNING AND MANAGEMENT PROGRAM
0
1. The authority citation is revised to read as follows:
Authority: 42 U.S.C. 7152, 7191; 42 U.S.C. 7275-7276c.
0
2. Section 905.11(b)(4)(i) is revised to read as follows:
Sec. 905.11 What must an IRP include?
* * * * *
(b) * * *
(4) * * *
(i) As part of the public participation process for an MBA, the
governing body of an MBA must approve the IRP in accordance with the
MBA's by-laws, confirming that all requirements have been met. To
indicate approval in the case of an individual IRP submitted by an
entity with a board of directors or city council, 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.
* * * * *
0
3. Section 905.12(b)(3) is revised to read as follows:
Sec. 905.12 How must IRPs be submitted?
* * * * *
(b) * * *
(3) Customers may submit IRPs as regional/IRP cooperatives when
previously approved by Western. Western encourages customers to prepare
``regional'' IRPs. Regional IRPs are voluntary and participants need
not be members of an MBA or a Western customer. Regional/IRP
cooperatives may also submit small customer plans, minimum investment
reports, and EE/RE reports on behalf of eligible IRP cooperative
members.
* * * * *
0
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 plan and report data?
IRPs, small customer plans, minimum investment 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. IRPs must be posted on a customer's publicly
available Web site or on Western's Web site. Customers posting their
IRPs on their own Web site must notify Western of this decision when
they submit their IRP. A hotlink on Western's Web site to IRPs posted
on customer Web sites gives interested parties ready access to those
IRPs. Western will post on its Web site the IRPs of customers that do
not post on their own Web sites. Prior to posting, Western will provide
the customer the opportunity to submit its views on whether information
contained in the IRP is exempt from the FOIA's mandatory public
disclosure requirements. Customers may request confidential treatment
of all or part of a submitted document consistent with FOIA exemptions.
Western will determine whether particular information is exempt from
public access. Western will not disclose to the public information it
has determined to be exempt, recognizing that certain competition-
related customer information may be proprietary.
Dated: May 29, 2008.
Timothy J. Meeks,
Administrator.
[FR Doc. E8-14031 Filed 6-19-08; 8:45 am]
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