PART 905—ENERGY PLANNING AND MANAGEMENT PROGRAM Authority: 42 U.S.C. 7152, 7191; 42 U.S.C. 7275-7276c. Source: 60 FR 54174, Oct. 20, 1995, unless otherwise noted. Subpart A—General Provisions Source: 65 FR 16795, Mar. 30, 2000, unless otherwise noted. § 905.1 What are the purposes of the Energy Planning and Management Program? The purposes of the Energy Planning and Management Program (EPAMP) are to meet the objectives of Section 114 of the Energy Policy Act of 1992 (EPAct) and to extend long-term firm power resource commitments while supporting customer integrated resource planning (IRP); demand-side management (DSM), including energy efficiency, conservation, and load management; and the use of renewable energy. Subpart B, Integrated Resource Planning, allows customers of the Western Area Power Administration (Western) to meet the objectives of section 114 of EPAct through integrated resource planning or by other means, such as attaining a minimum level of investment in energy efficiency and/or renewable energy, collecting a charge to support defined public benefits, or complying with a mandated energy efficiency and/or renewable energy reporting requirement. § 905.2 What are the key definitions of this part? Administrator Customer Energy efficiency and/or renewable energy (EE/RE) report Integrated resource planning Integrated resource planning cooperative (IRP cooperative) Member-based association (MBA) (1) An entity composed of member utilities or user members, or (2) An entity that acts as an agent for, or subcontracts with, but does not assume power supply responsibility for its principals or subcontractors, who are its members. Minimum investment report Public benefits charge Region Renewable energy Small customer Western Subpart B—Integrated Resource Planning Source: 65 FR 16796, Mar. 30, 2000, unless otherwise noted. § 905.10 Who must comply with the integrated resource planning and reporting regulations in this subpart? (a) Integrated resource plans (IRP) and alternatives. (b) Rural Utility Service and state utility commission reports. § 905.11 What must an IRP include? (a) General. (b) IRP criteria. (1) Identification of resource options. (i) Supply-side options include, but are not limited to, purchased power contracts and conventional and renewable generation options. (ii) Demand-side options alter the customer's use pattern to provide for an improved combination of energy services to the customer and the ultimate consumer. (iii) Considerations that may be used to develop potential options include cost, market potential, consumer preferences, environmental impacts, demand or energy impacts, implementation issues, revenue impacts, and commercial availability. (iv) The IRP discussion of resource options must describe the options chosen by the customer, clearly demonstrating that decisions were based on a reasonable analysis of the options. The IRP may strike a balance among the applicable resource evaluation factors. (2) Action plan. (i) The IRP must state the time period that the action plan covers, and the action plan must be updated and resubmitted to Western when this time period expires. The customer may submit a revised action plan with the annual IRP progress report discussed in § 905.14. (ii) For those customers not experiencing or anticipating load growth, the action plan requirement for the IRP may be satisfied by a discussion of current actions and procedures in place to periodically reevaluate the possible future need for new resources. The action plan must include a summary of: (A) Actions the customer expects to take in accomplishing the goals identified in the IRP; (B) Milestones to evaluate accomplishment of those actions during implementation; and (C) Estimated energy and capacity benefits for each action planned. (3) Environmental effects. (4) Public participation. (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. (ii) For Western customers that do not purchase electricity for resale, such as some State, Tribal, and Federal agencies, the customer can satisfy the public participation requirement by having a top management official with resource acquisition responsibility review and concur on the IRP. The customer must note this concurrence in the IRP. (5) Load forecasting. (6) Measurement strategies. (c) IRP criteria for certain customers not qualifying for “small customer” status. (1) Each IRP submitted by a customer under paragraph (c) of this section must: (i) Consider all reasonable opportunities to meet future energy service requirements using DSM techniques, renewable energy resources, and other programs; and (ii) Minimize, to the extent practical, adverse environmental effects. (2) Each IRP submitted by a customer under paragraph (c) of this section must include, in summary form: (i) Customer name, address, phone number, email and Website if applicable, and contact person; (ii) Customer type; (iii) Current energy and demand profiles, and data on total annual energy sales and usage for the past 5 years, which Western will use to verify that customers qualify for these criteria; (iv) Future energy services projections; (v) How items in paragraphs (c)(1)(i) and (c)(1)(ii) of this section were considered; and (vi) Actions to be implemented over the customer's planning timeframe. [65 FR 16795, Mar. 30, 2000, as amended at 73 FR 35062, June 20, 2008] § 905.12 How must IRPs be submitted? (a) Number of IRPs submitted. (b) Method of submitting IRPs. (1) Customers may submit IRPs individually. (2) MBAs may submit IRPs for each of their members or submit one IRP on behalf of all or some of their members. An IRP submitted by an MBA must specify the responsibilities and participation levels of individual members and the MBA. Any member of an MBA may submit an individual IRP to Western instead of being included in an MBA IRP. (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. (c) Alternatives to submitting individual IRPs. [65 FR 16795, Mar. 30, 2000, as amended at 73 FR 35062, June 20, 2008] § 905.13 When must IRPs be submitted? (a) Submitting the initial IRP. (b) Updates and amendments to IRPs. (c) IRP cooperatives. § 905.14 Does Western require annual IRP progress reports? Yes, customers must submit IRP progress reports each year within 30 days of the anniversary date of the approval of the currently applicable IRP. The reports must describe the customer's accomplishments achieved under the action plan, including projected goals and implementation schedules, and energy and capacity benefits and renewable energy developments achieved as compared to those anticipated. Western prefers measured values, but will accept reasonable estimates if measurement is infeasible or not cost-effective. Instead of a separate progress report, the customer may use any other annual report that the customer submits to Western or another entity, at the customer's discretion, if that report contains all required data for the previous full year and is submitted within 30 days of the approval anniversary date of the currently applicable IRP. With Western's approval, customers may submit reports outside of the 30-day anniversary date window. § 905.15 What are the requirements for the small customer plan alternative? (a) Requesting small customer status. (b) Small customer plan contents. (1) Consider all reasonable opportunities to meet future energy service requirements using demand-side management techniques, renewable energy resources, and other programs that provide retail consumers with electricity at reasonable cost; (2) Minimize, to the extent practical, adverse environmental effects; and (3) Present in summary form the following information: (i) Customer name, address, phone number, email and Website if applicable, and contact person; (ii) Type of customer; (iii) Current energy and demand profiles and data on total annual energy sales and usage for the previous 5 years for utility customers, or current energy and demand use for end-use customers; (iv) Future energy services projections; (v) How items in paragraphs (b)(1) and (b)(2) of this section were considered; and (vi) Actions to be implemented over the customer's planning timeframe. (c) When to submit small customer plans. (d) Maintaining small customer status. (2) Western will use the letter for overall program evaluation and comparison with the customer's plan, and for verification of continued small customer status. Customers may submit annual update letters outside of the anniversary date if previously agreed to by Western so long as the letter contains all required data for the previous full year. (e) Losing eligibility for small customer status. (i) Is a utility customer and exceeds total annual energy sales and usage of 25 GWh, as averaged over the previous 5 years; or (ii) Is no longer an end-use customer. (2) Western will work with a customer that loses small customer status to develop an appropriate schedule for submitting an IRP or other report required under this subpart. § 905.16 What are the requirements for the minimum investment report alternative? (a) Request to submit the minimum investment report. (1) The source of the minimum investment requirement (number, title, date, and jurisdiction of law); (2) The initial, annual, and other reporting requirement(s) of the mandate, if any; and (3) The mandated minimum level of investment or public benefits charge for DSM and/or renewable energy. (b) Minimum investment requirement. (1) A mandatory set percentage of customer gross revenues or other specific minimum investment in DSM and/or renewable energy mandated by a State, Tribal, or Federal Government with jurisdictional authority; or (2) A required public benefits charge, including charges to be collected for and spent on DSM; renewable energy; efficiency and alternative energy-related research and development; low-income energy assistance; and any other applicable public benefits category, mandated by a State, Tribal, or Federal Government with jurisdictional authority. Participation in a public benefits program requires either a mandatory set percentage of customer gross revenues or other specific charges to be applied toward the programs as determined by the applicable State, Tribal, or Federal authority. The revenues from the public benefits charge may be expended directly by the customer, or by another entity on behalf of the customer as determined by the applicable State, Tribal, or Federal authority. (c) Multi-state entities. (d) Western's response to minimum investment report requests. (e) Minimum investment report contents. (1) Customer name, address, phone number, email and Website if applicable, and contact person; (2) Authority or requirement to undertake a minimum investment, including the source of the minimum investment requirement (number, title, date, and jurisdiction of law or regulation); and (3) A description of the minimum investment, including: (i) Minimum percentage or other minimum requirement for DSM and/or renewable energy, including any charges to be collected for and spent on DSM, renewable energy, efficiency or alternative energy-related research and development, low-income energy assistance, and any other applicable public benefits categories; (ii) Actual or estimated energy and/or capacity savings resulting from minimum investments in DSM, if known; (iii) Actual or estimated energy and/or capacity resulting from minimum investments in renewable energy, if known; and (iv) A description of the DSM and/or renewable energy activities to be undertaken over the next 2 years as a result of the requirement for minimum investment, if known. (f) Minimum investment report approval. (g) When to submit the minimum investment report. (h) Maintaining minimum investment reports. (2) Western will use the letter for overall program evaluation and to ensure customers remain in compliance. Customers may submit letters outside of the anniversary date if previously agreed to by Western, and if the letter contains all required data for the previous full year. Instead of a separate letter, a customer choosing this option may submit the State, Tribal, or Federal required annual report documenting the minimum investment and associated DSM and/or renewable energy savings and/or use, if known. (i) Loss of eligibility to submit the minimum investment report. (i) A State, Tribal, or Federal mandate no longer applies to the customer, or (ii) The customer does not comply with the minimum level of investment in applicable State, Tribal, or Federal law. (2) Western will work with a customer no longer eligible to submit a minimum investment report to develop an appropriate schedule to submit an IRP or other plan or report required under this subpart. § 905.17 What are the requirements for the energy efficiency and/or renewable energy report (EE/RE report) alternative? (a) Requests to submit an EE/RE report. (1) The source of the EE/RE reporting requirement (number, title, date, and jurisdiction of law or regulation); (2) The initial, annual, and other reporting requirement(s) of the report; and (3) A summary outline of the EE/RE report's required data or components, including any requirements for documenting customer energy efficiency and renewable energy activities. (b) EE/RE report requirement. (c) Western's response to EE/RE report requests. (d) EE/RE report contents. (1) Customer name, address, phone number, email and Website if applicable, and contact person; (2) Authority or requirement to complete the EE/RE report, including the source of the requirement (number, title, date, and jurisdiction of law); and (3) A description of the customer's required energy efficiency and/or renewable energy activities, including: (i) Level of investment or expenditure in energy efficiency and/or renewable energy, and quantifiable energy savings or use goals, if defined by the EE/RE reporting requirement; (ii) Annual actual or estimated energy and/or capacity savings, if any, associated with energy efficiency and resulting from the EE/RE reporting requirement; (iii) Actual or estimated energy and/or capacity, if any, associated with renewable energy and resulting from the EE/RE reporting requirement; (iv) A description of the energy efficiency and/or renewable energy activities to be undertaken over the next 2 years as a result of the EE/RE reporting requirement. (e) EE/RE report approval. (f) When to submit the EE/RE report. (g) Maintaining EE/RE reports. (2) Customers may submit annual EE/RE letters outside of the anniversary date if previously agreed to by Western if the letter contains all required data for the previous full year. (h) Loss of eligibility to submit the EE/RE report. (i) The EE/RE reporting requirement no longer applies to the customer, or (ii) The customer does not comply with the EE/RE reporting requirements in applicable State, Tribal, or Federal law. (2) Western will work with a customer no longer eligible to submit an EE/RE report to develop an appropriate schedule to submit a small customer plan or other plan or report required under this subpart. § 905.18 What are the criteria for Western's approval of submittals? (a) Approval criteria. (1) Whether the plan or report satisfactorily addresses the criteria in the regulations in this subpart; and (2) The reasonableness of the plan or report given the size, type, resource needs, geographic area, and competitive situation of the customer. (b) Review of resource choices. (c) Accepting plans and reports under other initiatives. (d) Water-based plans and reports. § 905.19 How are plans and reports reviewed and approved? Western will review all plans and reports submitted under this subpart and notify the submitting entity of the plan's or report's acceptability within 120 days after receiving it. If a plan or report submittal is insufficient, Western will provide a notice of deficiencies to the entity that submitted the plan or report. Western, working together with the entity, will determine the time allowable for resubmitting the plan or report. However, the time allowed for resubmittal will not be greater than 9 months after the disapproval date, unless otherwise provided by applicable contract language. § 905.20 When are customers in noncompliance with the regulations in this subpart, and how does Western ensure compliance? (a) Good faith effort to comply. (b) Penalties for noncompliance. (c) Written notification of penalty. (d) Penalty options. (2) The surcharge increases to 20 percent for the second 12 months and to 30 percent per year thereafter until the deficiency is cured. (3) After the first 12 months of the surcharge and instead of imposing any further surcharge, Western may impose a penalty that would reduce the resource delivered under a customer's long-term firm power contract(s) by 10 percent. Western may impose this resource reduction either: (i) When it appears to be more effective to ensure customer compliance, or (ii) When such reduction may be more cost-effective for Western. (4) The penalty provisions in existing contracts will continue to be in effect and administered and enforced according to applicable contract provisions. (e) Assessing and ceasing penalties. (f) Penalties on MBAs and IRP cooperatives. § 905.21 What is the administrative appeal process? (a) Filing written appeals with Western. (b) Alternative dispute resolution. (c) Penalties during appeal. (d) Meeting other requirements during appeal process. § 905.22 How does Western periodically evaluate customer actions? (a) Periodic review of customer actions. (b) Reviewing representative samples of plans and reports. (c) Scope of periodic reviews. § 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. [73 FR 35062, June 20, 2008] § 905.24 Will Western conduct reviews of this program? Yes, Western may periodically initiate a public process to review the regulations in this subpart to determine whether they should be revised to reflect changes in technology, needs, or other developments. Subpart C—Power Marketing Initiative § 905.30 Purpose and applicability. (a) The Power Marketing Initiative (PMI) provides a framework for marketing Western's long-term firm hydroelectric resources. For covered projects, Western will make a major portion of the resources currently under contract available to existing long-term firm power customers for a period of time beyond the expiration date of their current contracts. (b) The Western projects covered by this subpart are the Pick-Sloan Missouri Basin Program—Eastern Division and the Loveland Area Projects (LAP). The PMI applies to covered projects to the extent it is consistent with other contractual and legal rights, and subject to any applicable project-specific environmental requirements. § 905.31 Term. Western will extend resource commitments for 20 years from the date existing contracts expire to existing customers with long-term firm power contracts from projects identified in section 905.30(b). § 905.32 Resource extensions and resource pool size. (a) Western will extend a project-specific percentage of the marketable resource, determined to be available at the time future resource extensions begin, to existing customers with long-term firm power contracts. The remaining unextended power will be used to establish project-specific resource pools. An initial level of 96 percent of the marketable resource will be extended for the Pick-Sloan Missouri Basin Program—Eastern Division and the Loveland Area Projects. (b) 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. (c) The initial pool percentages shall be applied to the marketable resource determined to be available at the time future resource extensions begin. Subsequent percentages shall be applied to the resource under contract at the time. (d) The additional resource pool increments shall be established by pro rata withdrawals, on 2 years' notice, from then-existing customers. Withdrawals could be mitigated or delayed if good water conditions exist. (e) Once the extensions for existing customers and allocations to new customers from the resource pool have been made, additional power resources may become available for various reasons. Any additional available resources will be used as follows: (1) If power is reserved for new customers but not allocated, or resources are offered but not placed under contract, this power will be offered on a pro rata basis to customers that contributed to the resource pool through application of the extension formula in § 905.33. (2) If power resources become available as a result of the enhancement of existing generation, project-use load efficiency upgrades, the development of new resources, or resources turned back to Western, Western may elect to use this power to reduce the need to acquire firming resources, retain the power for operational flexibility, sell these resources on a short-term basis, or allocate the power. (3) If resources become available due to imposition of penalties pursuant to § 905.17, Western may make such resources available within the marketing area to existing customers that are in compliance with subpart B, subject to withdrawal. § 905.33 Extension formula. (a) The amount of power to be extended to an existing customer shall be determined according to this formula: Customer Contract Rate of Delivery (CROD) today/total project CROD under contract today × project-specific percentage × marketable resource determined to be available at the time future resource extensions begin = CROD extended. (b) Where contract rates of delivery vary by season, the formula shall be used on a seasonal basis to determine the extended power resource. A similar pro rata approach shall be used for energy extensions. (c) Determination of the amount of resource available after existing contracts expire, if significantly different from existing resource commitments, shall take place only after an appropriate public process. (d) The formula set forth in paragraph (a) of this section also should be used to determine the amounts of firm power subject to withdrawal at 5-year intervals after the effective date of the extension to existing customers, except that the percentage used would be up to 1 percent for each of the two withdrawal opportunities, and the formula would use the customer CROD, project CROD and the resource under contract at the time. § 905.34 Adjustment provisions. Western reserves the right to adjust marketable resources committed to all customers with long-term firm power contracts only as required to respond to changes in hydrology and river operations, except as otherwise expressly provided in these regulations. Under contracts that extend resources under this PMI, existing customers shall be given at least 5 years' notice before adjustments are made. New customers may receive less notice. The earliest that any notice under this section shall become effective is the date that existing contractual commitments expire. Any adjustment shall only take place after an appropriate public process. Withdrawals to serve project use and other purposes provided for by contract shall continue to take place based on existing contract/marketing criteria principles. § 905.35 New customer eligibility. (a) Allocations to new customers from the project-specific resource pools established under § 905.32 shall be determined through separate public processes in each project's marketing area. New customers receiving an allocation must execute a long-term firm power contract to receive the allocated power and are required to comply with the IRP requirements in this part. Contracts with new customers shall expire on the same date as firm power contracts with all other customers of a project. (b) To be eligible for an allocation, a potential new customer must be a preference entity, as defined in Reclamation law, within the currently established marketing area for a project. (c) Entities that desire to purchase power from Western for resale to consumers, including municipalities, cooperatives, public utility districts and public power districts, must have utility status. Native American tribes are not subject to this requirement. Utility status means that the entity has responsibility to meet load growth, has a distribution system, and is ready, willing, and able to purchase power from Western on a wholesale basis for resale to retail consumers. To be eligible to apply for power available from a project's initial resource pool, those entities that desire to purchase Western power for resale to consumers must have attained utility status by December 31, 1996, for the Pick-Sloan Missouri Basin Program—Eastern Division, and by September 30, 2000, for the Loveland Area Projects. To be eligible to apply for power from subsequent resource pool increments, these entities must have attained utility status no later than 3 years prior to availability of the incremental addition to the resource pool. Deadlines for attaining utility status for other projects will be established at a later date. § 905.36 Marketing criteria. Western shall retain applicable provisions of existing marketing criteria for projects where resource commitments are extended beyond the current expiration date of long-term firm power sales contracts. Western must retain important marketing plan provisions such as classes of service, marketing area, and points of delivery, to the extent that these provisions are consistent with the PMI. The PMI, eligibility and allocation criteria for potential new customers, retained or amended provisions of existing marketing criteria, the project-specific resource definition, and the size of a project-specific resource pool shall constitute the future marketing plan for each project. § 905.37 Process. Modified contractual language shall be required to place resource extensions under contract. Resource extensions and allocations to new customers from the initial resource pool will take effect when existing contracts expire. These dates are December 31, 2000, for the Pick-Sloan Missouri Basin Program—Eastern Division and September 30, 2004, for the Loveland Area Projects. For the Pick-Sloan Missouri Basin Program—Eastern Division, Western will offer contracts to existing customers for resource extensions no sooner than the effective date of the final regulations. For the Loveland Area Projects, existing contracts provide for potential adjustments to marketable resources in 1999. No contracts will be offered to existing customers for post-2004 Loveland Area Projects resources until the analysis of potential resource adjustments in 1999 has been completed and any adjustments are implemented. Existing power sales contracts require that this analysis be completed by 1996. Subpart D—Energy Services § 905.40 Technical assistance. Western shall establish a program that provides technical assistance to customers to conduct integrated resource planning, implement applicable IRPs and small customer plans, and otherwise comply with the requirements of these regulations. Subpart E—Final Principles of Integrated Resource Planning for Western Resource Acquisition Source: 79 FR 56481, Sept. 22, 2014, unless otherwise noted. § 905.50 Resource acquisition principles. Western's resource acquisition activities will be determined by project-specific power marketing plans, hydropower production capability, and the application of the following principles of IRP: (a) Western will consider a full range of resource options, both supply-side and demand-side, as well as renewable resource options. (b) On a project-by-project basis, Western, through a public process involving interested stakeholders will develop criteria to be used in evaluating power resource alternatives. (c) Evaluation criteria will address cost, environmental impact, dependability, dispatchability, risk, diversity, and the ability to verify demand-side alternatives. Evaluation criteria will be reviewed as the need for resources changes or when long-term commitments to purchase power expire. (d) Evaluation criteria will be consistent with Western's power marketing policy, which states that Federal power is to be marketed in such a manner as to encourage the most widespread use thereof at the lowest possible rates to consumers consistent with sound business principles. The policy, found in Delegation Order No. 00-037.00A, is derived from statutes authorizing the sale of power from both Department of the Army and Department of the Interior hydroelectric projects. These statutes include section 5 of the Flood Control Act of 1944, 16 U.S.C. 825(s) and section 9(c) of the Reclamation Project Act of 1939. (e) Resource acquisition planning will be consistent with power marketing plans and associated contractual obligations. (f) Resource acquisition decisions will be documented and made available to Western's power customers and the public. § 905.51 Transmission planning principles. Western's transmission planning is conducted to assess the capability of the Federal transmission system to provide adequate and reliable electric service to its customers and the interconnected power grid. These planning efforts occur as part of its participation in regional and sub-regional planning entities as well as Western's Open Access Transmission Tariff.