[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
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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.

-----------------------------------------------------------------------

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]
BILLING CODE 6450-01-P