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Proposed Rule

Energy Planning and Management Program; Integrated Resource Planning Approval Criteria

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Information about this document as published in the Federal Register.

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


Notice of proposed rulemaking.


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.


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.


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 Western will post information about the public process on its Web site at 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.

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Project manager-Ron Horstman, (720) 962-7419, e-mail

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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 Start Printed Page 46571customers 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 Start Printed Page 46572that 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

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.

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List of Subjects in 10 CFR Part 905

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Dated: August 6, 2007.

Timothy J. Meeks,


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

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

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

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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:

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.

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4. Section 905.23 is revised to read as follows:

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.

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[FR Doc. E7-16477 Filed 8-20-07; 8:45 am]