[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Notices]
[Pages 20697-20700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10319]


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DEPARTMENT OF ENERGY

Western Area Power Administration


Post-2010 Resource Pool, Pick-Sloan Missouri Basin Program--
Eastern Division

AGENCY: Western Area Power Administration, DOE.

ACTION: Notice of Final Procedures.

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SUMMARY: Western Area Power Administration (Western), Upper Great 
Plains Region, a Federal power marketing agency of the Department of

[[Page 20698]]

Energy (DOE), hereby announces its Post-2010 Resource Pool Allocation 
Procedures. The Energy Planning and Management Program (Program) 
provides for establishing project-specific resource pools and 
allocating power from these pools to new preference customers and other 
appropriate purposes as determined by Western. Western, in accordance 
with the Program, is finalizing procedures to administer a Federal 
power resource pool increment of up to 1 percent (approximately 20 
megawatts) of the long-term marketable resource of the Pick-Sloan 
Missouri Basin Program--Eastern Division (P-SMBP--ED) that will become 
available January 1, 2011 (Post-2010 Resource Pool). Western proposed 
procedures in the Federal Register on October 15, 2008 (73 FR 61109), 
and responses to public comments received pertaining to the proposed 
procedures are included in this notice. Western will publish a notice 
of proposed allocations in the Federal Register after the effective 
date of this notice.

DATES: The Post-2010 Resource Pool Allocation Procedures will become 
effective June 4, 2009.

ADDRESSES: Information regarding the Post-2010 Resource Pool Allocation 
Procedures, including comments, letters, and other supporting documents 
made or kept by Western for the purpose of developing the final 
procedures, are available for public inspection and copying at the 
Upper Great Plains Region, Western Area Power Administration, 2900 4th 
Avenue North, Billings, MT 59101-1266. Public comments are available 
for viewing at: http://www.wapa.gov/ugp/Post2010/Post2010CmtLtr.htm.

SUPPLEMENTARY INFORMATION: Western published the Final Rule for the 
Program (Final Rule) on October 20, 1995 (60 FR 54151). The Final Rule 
became effective on November 20, 1995. Subpart C-Power Marketing 
Initiative of the Program, Final Rule, 10 CFR part 905, provides for 
project-specific resource pools and allocations of power from these 
pools to eligible new preference customers and/or for other appropriate 
purposes as determined by Western. The additional resource pool 
increments shall be established by pro rata withdrawals, on 2 years' 
notice, from existing customers. Specifically, 10 CFR 905.32(b) 
provides:

    At two 5-year intervals after the effective date of the 
extension to existing customers, Western shall create a project-
specific resource pool increment of up to an additional 1 percent of 
the long-term marketable resource under contract at the time. The 
size of the additional resource pool increment shall be determined 
by Western based on consideration of the actual fair-share needs of 
eligible new customers and other appropriate purposes.

    Western held a public information and comment forum on November 20, 
2008, to accept oral and written comments on the proposed procedures 
and call for applications. The formal comment period ended January 13, 
2009. The Post-2010 Resource Pool Allocation Procedures in this Federal 
Register notice explain in detail how Western intends to implement 
Subpart C-Power Marketing Initiative of the Energy Planning and 
Management Program Final Rule in the P-SMBP--ED.

Response to Comments Regarding Post-2010 Resource Pool Allocation 
Procedures

Comments and Responses

    Comment: Western received a comment stating that it should stay 
consistent with prior marketing initiatives and with the rules and 
regulations of the Program. The comment expressed concern that Western 
has been inconsistent in regard to whether Western allocates power 
based on an entity already having a Federal power commitment versus the 
entity already having an allocation of firm power from Western.
    Response: Western agrees with the importance of acting consistently 
and in accordance with the P-SMBP--ED Final Post 1985 Marketing Plan 
(45 FR 71860, October 30, 1980) (Post-1985 Marketing Plan), the 
Program, and the Post-2000 and Post-2005 Marketing Initiatives. In 
response to public comments and to stay consistent with the Post-1985 
Marketing Plan and the intent of the Program, General Eligibility 
Criterion C was clarified in the Notice of Final Procedures Federal 
Register (68 FR 67414, December 2, 2003), for the Post-2005 Resource 
Pool by adding ``or other firm Federal power commitment.'' New Western 
customers from the Post-2000 and Post-2005 Resource Pools were 
allocated power consistent with this clarification.
    Comment: Western received a comment urging Western to consider 
giving allocations to cooperatives a higher priority than other 
applicants under the Post-2010 Resource Pool.
    Response: The preference clause provides for public entities to be 
given preference over private entities in the marketing of Federal 
power. There are no preference entity applicants with a higher priority 
than another. Western will not provide a higher priority to one 
preference entity applicant over another in the Final Post-2010 
Resource Pool Allocation Procedures.
    Comment: Western received comments in support of an entity's 
application for power under the Post-2010 Resource Pool.
    Response: All applications received by Western for an allocation of 
power from the Post-2010 Resource Pool will be considered in accordance 
with the Final Post-2010 Resource Pool Allocation Procedures.
    Comment: Western received a comment that Criterion D of the General 
Eligibility Criteria does not accurately describe the prohibition of 
resale by a non-utility or a utility to a non-member per Western's 
General Power Contract Provisions. Resale by a non-utility or a utility 
to a non-member would be a violation of Western's General Power 
Contract Provisions; however Western does permit the sale of firm power 
to a utility's member systems in recognizing the structure of joint 
action agencies and rural electric generation and transmission 
cooperatives.
    Response: Criterion D is one of several criteria intended for the 
purpose of determining general eligibility of the applicant and is not 
intended to fully describe resale. Western agrees that the prohibition 
of resale, by a non-utility or utility, is addressed in Western's 
General Power Contract Provisions which are required under the General 
Contract Principles, Principle E.
    Comment: Western received a comment that contract provisions for 
new Post-2010 Resource Pool firm power customers should be identical to 
the terms and conditions of existing firm power customers and in 
considering applications and making new allocations, Western must act 
within existing laws and regulations. Also, if withdrawals are made for 
future resource pools, reductions should be applied to all firm power 
contract holders.
    Response: Western agrees that any new allocation made from the 
Post-2010 Resource Pool must comply with existing laws, regulations, 
and guidelines, as well as contract terms and conditions applied to 
allocations made in previous marketing initiatives under the Program. 
There are no future resource pools for the Program in the P-SMBP--ED. 
Withdrawals for future resource pools are outside the scope of this 
process.
    Comment: Western received a comment that in no event should Western 
use ``appropriate purposes'' to attempt to legislate new policy 
regarding eligibility requirements for receiving firm power 
allocations.

[[Page 20699]]

    Response: Western is not proposing to use a share of the Post-2010 
Resource Pool for other appropriate purposes.
    Comment: Western received several comments pertaining to Western 
granting exceptions or waivers to various General Eligibility Criteria 
for individual applicants.
    Response: If Western were to consider individual exceptions or 
waivers to the Post-2010 Allocation Procedures, all entities would need 
to be afforded the opportunity to submit new applications. Western 
would expect to receive many new applications with significant requests 
for granting individual waivers or exceptions. This process would 
undermine Program consistency, and may not be supportable by existing 
laws and regulations or the power available in the Post-2010 Resource 
Pool. Western will not grant exceptions or waivers to the Final Post-
2010 Resource Pool Allocation Procedures in determining which entities 
are eligible for an allocation of power.

Final Post-2010 Resource Pool Allocation Procedures

I. Amount of Pool Resources

    Western will allocate up to 1 percent (approximately 20 megawatts) 
of the P-SMBP--ED long-term firm hydroelectric resource available as of 
January 1, 2011, as firm power to eligible new preference customers. 
Firm power means capacity and associated energy allocated by Western 
and subject to the terms and conditions specified in the Western 
electric service contract.

II. General Eligibility Criteria

    Western will apply the following General Eligibility Criteria to 
applicants seeking an allocation of firm power under the Post-2010 
Resource Pool Allocation Procedures.
    A. All qualified applicants must be preference entities as defined 
by section 9(c) of the Reclamation Project Act of 1939 (43 U.S.C. 
485h(c)), as amended and supplemented.
    B. All qualified applicants must be located within the currently 
established P-SMBP--ED marketing area.
    C. All qualified applicants must not be currently receiving 
benefits, directly or indirectly, from a current P-SMBP--ED firm power 
allocation or other firm Federal power commitment. Qualified Native 
American applicants, who did not receive an allocation from the Post-
2000 or Post-2005 Resource Pools, are not subject to this requirement.
    D. Qualified utility and non-utility applicants must be able to use 
the firm power directly or be able to sell it directly to retail 
customers.
    E. Qualified utility applicants that desire to purchase power from 
Western for resale to consumers, including cooperatives, 
municipalities, public utility districts, and public power districts 
must have met utility status by January 1, 2008. Utility status means 
the entity has responsibility to meet load growth, has a distribution 
system, and is ready, willing, and able to purchase Federal power from 
Western on a wholesale basis.
    F. Qualified Native American applicants must be an Indian tribe as 
defined in the Indian Self Determination Act of 1975, 25 U.S.C. 450b, 
as amended.

III. General Allocation Criteria

    Western will apply the following General Allocation Criteria to 
applicants seeking an allocation of firm power under the Post-2010 
Resource Pool Allocation Procedures.
    A. Allocations of firm power will be made in amounts as determined 
solely by Western in exercise of its discretion under Federal 
Reclamation Law.
    B. An allottee will have the right to purchase such firm power only 
upon executing an electric service contract between Western and the 
allottee, and satisfying all conditions in that contract.
    C. Firm power allocated under these procedures will be available 
only to new preference customers in the existing P-SMBP--ED marketing 
area. The marketing area of the P-SMBP--ED is Montana (east of the 
Continental Divide), all of North Dakota and South Dakota, Nebraska 
east of the 101[deg] meridian, Iowa west of the 94\1/2\[deg] meridian, 
and Minnesota west of a line on the 94\1/2\[deg] meridian from the 
southern boundary of the state to the 46[deg] parallel and then 
northwesterly to the northern boundary of the state at the 96\1/2\[deg] 
meridian.
    D. Allocations made to Native American tribes will be based on the 
actual load experienced in calendar year 2007. Western has the right to 
use estimated load values for calendar year 2007 should actual load 
data not be available. Western will adjust inconsistent estimates 
during the allocation process.
    E. Allocations made to qualified utility and non-utility applicants 
will be based on the actual loads experienced in calendar year 2007. 
Western will apply the Post-1985 Marketing Plan and the Program 
criteria to these loads. Western will carry forward key principles and 
criteria established in the Post-2000 and Post-2005 Resource Pools, 
except as modified herein.
    F. Energy provided with firm power will be based upon the 
customer's monthly system load pattern.
    G. Any electric service contract offered to a new customer shall be 
executed by the customer within 6 months of a contract offer by 
Western, unless otherwise agreed to in writing by Western.
    H. The resource pool will be dissolved subsequent to the closing 
date of the last qualified applicant to execute their respective firm 
electric service contract. Firm power not under contract will be used 
in accordance with the Program.
    I. The minimum allocation shall be 100 kilowatts (kW).
    J. The maximum allocation for qualified utility and non-utility 
applicants shall be 5,000 kW.
    K. Contract rates of delivery shall be subject to adjustment in the 
future as provided for in the Program.
    L. If unanticipated obstacles to the delivery of hydropower 
benefits to Native American tribes arise, Western retains the right to 
provide the economic benefits of its resources directly to these 
tribes.

IV. General Contract Principles

    Western will apply the following General Contract Principles to all 
applicants receiving an allocation of firm power under the Post-2010 
Resource Pool Allocation Procedures.
    A. Western shall reserve the right to reduce a customer's summer 
season contract rate of delivery by up to 5 percent for new project 
pumping requirements, by giving a minimum of 5 years' written notice in 
advance of such action.
    B. Western, at its discretion and sole determination, reserves the 
right to adjust the contract rate of delivery on 5 years' written 
notice in response to changes in hydrology and river operations. Any 
such adjustments shall only take place after a public process by 
Western.
    C. Each allottee is ultimately responsible for obtaining its own 
third-party delivery arrangements, if necessary. Western may assist the 
allottee in obtaining third-party transmission arrangements for the 
delivery of firm power allocated under these procedures to new 
customers.
    D. Contracts entered into under the Post-2010 Resource Pool 
Allocation Procedures shall provide for Western to furnish firm 
electric service effective from January 1, 2011, through December 31, 
2020.
    E. Contracts entered into as a result of these procedures shall 
incorporate Western's standard provisions for power

[[Page 20700]]

sales contracts, integrated resource planning, and the General Power 
Contract Provisions.

Post-2010 Resource Pool Procedures Requirements

Environmental Compliance

    Western completed an Environmental Impact Statement on the Program 
(DOE/EIS-0812), pursuant to the National Environmental Policy Act of 
1969, 42 U.S.C. 4321-4347 (2007), as amended and supplemented, (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.

    Dated: April 28, 2009.
Timothy J. Meeks,
Administrator.
[FR Doc. E9-10319 Filed 5-4-09; 8:45 am]
BILLING CODE 6450-01-P