02-618. Post-2004 Resource Pool-Loveland Area Projects

AGENCY:

Western Area Power Administration, DOE.

ACTION:

Notice of final power allocations.

SUMMARY:

Western Area Power Administration (Western), a Federal power marketing agency of the Department of Energy (DOE), announces its Post-2004 Resource Pool Final Allocation of Power developed under the requirements of Subpart C—Power Marketing Initiative of the Energy Planning and Management Program (Program) Final Rule. This notice also includes Western's responses to public comments on proposed allocations published May 11, 2001.

Final allocations are published to show Western's decisions prior to beginning the contractual phase of the process. Firm electric service contracts, negotiated between Western and allottees in this notice, will permit delivery of the allotted power from the October 2004 billing period, through the September 2024 billing period.

DATES:

The Post-2004 Resource Pool Final Allocation of Power will become effective February 11, 2002 and will remain in effect until September 30, 2024.

ADDRESSES:

All documents developed or retained by Western in developing the final allocations are available for inspection and copying at the Rocky Mountain Customer Service Region Office, 5555 East Crossroads Boulevard, Loveland, CO 80538-8986.

SUPPLEMENTARY INFORMATION:

Western published Final Post-2004 Resource Pool Allocation Procedures (Procedures) in the Federal Register (65 FR 52419, August 29, 2000) to implement Subpart C—Power Marketing Initiative of the Program's Final Rule (10 CFR part 905), published in the Federal Register (60 FR 54151, October 20, 1995). The Program, developed in part to implement section 114 of the Energy Policy Act of 1992, became effective November 20, 1995. The goal of the Program is to require planning and efficient electric energy use by Western's long-term firm power customers and to extend Western's firm power resource commitments. One aspect of the Program is to establish project-specific power resource pools and allocate power from these pools to new preference customers.

Western published its proposed allocations and initiated a public comment period in the Federal Register (66 FR 24133, May 11, 2001). Public information forums on the proposed allocations were held August 2, 7, and 9, 2001. The public comment period was extended from September 10, 2001, to October 12, 2001, in the Federal Register (66 FR 47652, September 13, 2001).

The Procedures, in conjunction with the Post-1989 Marketing Plan (51 FR 4012, January 31, 1986), establish the framework for allocating power from the Loveland Area Projects (LAP) resource pool.

I. Comments and Responses

Comment: Mni Sose asks that Western re-examine its understanding of government-to-government communications.

Response: Western supports DOE's American Indian policy that stresses the need for a government-to-government, trust-based relationship. Western intends to continue its practice of consultation with tribal governments so that tribal rights and concerns are considered prior to any actions being taken that affect the tribes.

The Post-1989 Marketing Plan, Program, and Procedures form the framework for allocating LAP power. The allocation process was conducted in a consistent manner with all LAP applicants. Prior to publishing proposed allocations, Western, recognizing the unique status of Native American tribes, consulted with tribes before their Applicant Profile Data (APD) submittal and during Western's review of data submitted on their APDs.

Once proposed allocations were published, Western sought to follow the public process and only allow formal comments, written and oral, to be submitted as input to the final allocation decision. Western provided written responses to questions that were not answered in the public forums and extended the comment period in conjunction with those answers to provide additional time for tribes to submit written comments on the proposed allocations. Western will not engage in discussions about the allocations with any parties outside of the formal process until final allocations are published. This procedural rule is applied consistently to tribes as well as non-tribal entities. Western does not believe that this procedural rule affects tribal self-governance rights nor creates an impact upon trust resources.

Western believes that the tribes were consulted about the process and Western considered the information gained from those consultations along with oral and written comments received during the public comment period to make the final allocations.

Comment: Western should not consider the benefits to tribes of Federal power from current service providers when making allocations to the tribes. In the event of the formation of a tribal utility, that power would be inaccessible to the tribes.

Response: The intent of the Program is to provide the benefits of Federal hydropower directly to individual tribes. Allocations listed in this notice will be made directly to the tribes. Any indirect Western hydroelectric benefits recognized in the calculation method were used by Western to determine a fair share for tribes at the time of allocation with no intent to create any commitment to transfer those benefits to the tribes. Any indirect Western hydroelectric benefits received by the tribes are contractual commitments between Western and the existing customers.

Comment: Western should consider the Wind River Reservation's Marathon and CamWest loads for allocation purposes.

Response: Western agrees that oil and gas resources on the reservation are tribally owned. However, as stated in Western's response to comments in the publication of the Procedures, “When submitting Native American load data as a non-utility, only load of tribal entities and their members will be considered for an allocation.” Marathon and CamWest are neither tribal entities nor tribal members. Therefore, the loads submitted in the reservation's APD for these operations were not considered in determining allocations.

Comment: Total allocations to the Wind River Reservation from Salt Lake City Area Integrated Projects (SLCA/IP) and LAP fall short of the 65 percent allocation. LAP should make up any shortfall that occurs between the two projects. The reservation should receive no less of an allocation than if they were located solely within LAP.

Response: LAP took into consideration the amount of the proposed SLCA/IP allocation in determining the final LAP allocation. Western believes that the allocation ultimately provided to the reservation should be congruent with the allocations made to other tribes. Taking into account current serving utility benefit, proposed SLCA/IP allocation, and LAP allocation, Western made every effort possible to provide approximately 65 percent total benefit to the reservation.

Comment: The Kickapoo Tribe in Kansas is concerned about not having the future demand submitted in its APD considered in the allocation process. The tribe understood that proposed growth in the next 2 to 5 years would be considered in the process. The tribe would like Western to consider future growth in the allocation process.

Response: Western stated during the publication of the Procedures that limited projected load estimates would be considered. As Western moved through the process and received data, a determination of definable limitations had to be developed that would ensure fairness in the allocation process and make sure that the pool was used to promote widespread use of the resource among new preference entities. The results of the data evaluation led Western to decide that eligible future load submitted in the APD would be considered in the allocation process only if the load was for facilities that were completed, or substantially near completion, at the time of the APD due date.

Comment: Certain changes should be made to the General Power Contract Provisions that consider tribal sovereignty. Underlying reserve contracts should be offered to tribes to reserve the power allocation for each tribe and allow for changes to the method of implementation. Western's Integrated Resource Planning requirements should be useful but not burdensome to the tribes.

Response: Entering into contractual arrangements with the tribes is the next step in the resource pool allocation process. However, contractual arrangements will not begin until final allocations are completed. Contractual provisions will be consistent with Section IV of the Procedures.

Comment: Several comments were submitted concerning the source of LAP power for deliveries to allottees in Kansas. Additional comments expressed concern about delivery points, transmission access, transmission arrangements, and cost of delivery arrangements for the allottees in Kansas.

Response: Transmission issues will be appropriately addressed during the contractual phase of the LAP post-2004 resource pool process. Allottees are ultimately responsible for transmission and delivery arrangements, but Western will assist allottees to secure arrangements required to provide the benefits of LAP power to the allottees.

Comment: Kansas Electric Power Cooperative, Inc. (KEPCo) expressed concern about the financial impacts to KEPCo and its member cooperatives. Tribal allocations will reduce sales to KEPCo members. Additional concern was expressed that the lost sales to member cooperatives would make it more difficult to meet Rural Utilities Service commitments for loan repayment.

Response: Western will work with KEPCo, its member cooperatives, and tribes to minimize negative financial impacts of LAP allocations. Western will assist tribes to find the best method of receiving LAP allocations that will ensure equitable treatment for all affected parties. Western understands that the cooperation of KEPCo and its member cooperatives is essential to making allocations to tribes in northeastern Kansas a success. Western will work to satisfy the needs of the parties involved.

II. Amount of Pool Resources

Western will allocate up to 4 percent of the LAP long-term firm hydroelectric resource available as of October 1, 2004, as firm power. Current hydrologic studies indicate that about 28 megawatts (MW) of capacity and 44 Gigawatthours (GWh) of energy will be available for the summer season. Approximately 24 MW of capacity and 35 GWh of energy will be available for the winter season. Firm power means firm capacity and associated energy allocated by Western and subject to the terms and conditions specified in Western's long-term firm power electric service contracts.

III. Final Power Allocation

The following final power allocations are made in accordance with the Procedures. All of the allocations are subject to the execution of a contract in accordance with the Procedures.

Final allocations for Native American allottees are shown in this table.

Native American allottees	Final post-2004 power allocation
	Summer kilowatthours	Winter kilowatthours	Summer kilowatts	Winter kilowatts
Iowa Tribe of Kansas and Nebraska	1,986,640	1,722,043	1,232	1,180
Kickapoo Tribe in Kansas	2,760,701	2,323,337	1,713	1,592
Prairie Band Potawatomi Nation	5,536,170	4,458,846	3,435	3,056
Sac and Fox Nation of Missouri	2,690,754	2,289,904	1,669	1,570
Wind River Reservation (Eastern Shoshone and Northern Arapaho Tribes)	2,242,166	1,968,930	1,391	1,350

Native American allottees received LAP allocations, that when combined with existing and future Western hydropower benefits, total approximately 65 percent of their eligible load in both the summer and winter season based on the adjusted seasonal energy data submitted by each tribe. The allocation process considered the current Western hydroelectric benefits received through serving utilities and future Western hydroelectric benefits that will be received by serving utilities as a result of this allocation process.

Based on the applications submitted by the Northern Arapaho and the Eastern Shoshone tribes, Western could not differentiate between each tribe's load. The data from each tribe was used to arrive at a final allocation for the Wind River Reservation instead of each tribe. The final LAP allocation for the reservation considers, in addition to the hydroelectric benefit from Western through the reservation's serving utility, the proposed allocation from Western's SLCA/IP resource pool. The combination of all three factors, LAP, SLCA/IP proposed allocation, and current serving utility benefit, provides approximately a 65 percent benefit of Western hydroelectric power to the reservation. The reservation's LAP allocation was changed after considering the proposed SLCA/IP allocation published in the Federal Register (66 FR 31910, June 13, 2001). Because system plant factors are different for LAP and SLCA/IP, only SLCA/IP's proposed kilowatthours were used to determine the LAP allocation. The allocation change to the reservation had no effect on other tribal allocations.

Final allocations of power for non-Native American utility and nonutility allottees are listed here.

Non-Native American utility and nonutility allottees	Final Post-2004 power allocation
	Summer kilowatthours	Winter kilowatthours	Summer kilowatts	Winter kilowatts
City of Chapman, KS	254,099	167,487	158	115
City of Elwood, KS	167,205	146,045	104	100
City of Eudora, KS	984,255	683,931	610	469
City of Fountain, CO	3,733,271	2,840,741	2,316	1,947
City of Garden City, KS	3,733,271	2,840,741	2,316	1,947
City of Goodland, KS	1,566,184	1,216,583	972	834
City of Horton, KS	434,979	313,926	270	215
City of Hugoton, KS	743,402	630,379	461	432
City of Johnson City, KS	440,463	336,772	273	231
City of Meade, KS	497,516	313,427	309	215
City of Minneapolis, KS	537,092	339,984	333	233
City of Troy, KS	192,401	150,826	119	103
Doniphan Electric Cooperative Association, Inc., KS	460,699	384,738	286	264
Fort Carson, CO	3,144,463	2,648,172	1,951	1,815
Kaw Valley Electric, KS	3,288,355	2,458,719	2,040	1,685
Midwest Energy, Inc., KS	3,733,271	2,840,741	2,316	1,947
Nemaha-Marshall Electric Cooperative Association, Inc., KS	1,129,867	973,099	701	667
Regional Transportation District, Denver, CO	327,209	287,994	203	198
Sunflower Electric Power Corporation, KS	3,733,271	2,840,741	2,316	1,947
Yellowstone National Park, WY	220,999	145,946	137	100

The allocation change to the Wind River Reservation caused a reduction in the total pool available to non-Native American utility and nonutility allottees. Therefore, the final allocation of power to non-Native American utility and nonutility allottees was changed accordingly.

The final allocations of power shown in the tables above are based on the LAP marketable resource available at this time. If the LAP marketable resource is reduced in the future, all allocations will be adjusted accordingly. Long-term firm energy with associated capacity made available for marketing because an allocation(s) has been reduced or withdrawn may be administratively reallocated by Western's Administrator without further public process.

IV. 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. Western has determined that this action does not require a regulatory flexibility analysis since it is a rulemaking of particular applicability involving rates or services applicable to public property.

V. Review Under the National Environmental Policy Act

Western has completed an environmental impact statement on the Program, pursuant to the National Environmental Policy Act of 1969 (NEPA). The Record of Decision was published in the Federal Register (60 FR 53181, October 12, 1995). Western's NEPA review assured all environmental effects related to this process have been analyzed.

VI. Determination Under Executive Order 12866

DOE has determined that this is not a significant regulatory action because it does not meet the criteria of Executive Order 12866 (58 FR 51735). Western has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget (OMB) is required.

VII. Determination Under the Small Business Regulatory Enforcement Fairness Act

Western has determined that this rule is exempt from congressional notification requirements under 5 U.S.C. 801 because the action is a rulemaking of particular applicability relating to rates or services and involves matters of procedure.

Dated: December 18, 2001.

Michael S. Hacskaylo,

Administrator.