Boulder Canyon Project-Post-2017 Resource Pool, 79436-79444 [2013-31214]

Download as PDF 79436 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices Dated: December 20, 2013. Kimberly D. Bose, Secretary. be accessed and/or submitted online at http://www.wapa.gov/dsw/pwrmkt/ BCP_Remarketing/ BCP_Remarketing.htm. Applicants are encouraged to use the application form provided at the above Web site. [FR Doc. 2013–31085 Filed 12–27–13; 8:45 am] BILLING CODE 6717–01–P Western Area Power Administration Boulder Canyon Project—Post-2017 Resource Pool Western Area Power Administration, DOE. ACTION: Notice of final marketing criteria and call for applications. AGENCY: The Western Area Power Administration (Western), a Federal power marketing agency of the Department of Energy (DOE), announces the Boulder Canyon Project (BCP) post2017 resource pool marketing criteria and is calling for applications from entities interested in an allocation of Federal power from the BCP. The Conformed Power Marketing Criteria or Regulations for the Boulder Canyon Project (2012 Conformed Criteria) published in the Federal Register on June 14, 2012, as required by the Hoover Power Allocation Act of 2011, established general eligibility criteria and a resource pool (Post-2017 Resource Pool) to be allocated to new allottees. Western has finalized marketing criteria, developed through a public process, to be used to allocate the Post-2017 Resource Pool, which will become available October 1, 2017. These marketing criteria, in conjunction with the 2012 Conformed Criteria, establish the framework for allocating power from the Post-2017 Resource Pool. Entities applying for an allocation of power from the Post-2017 Resource Pool must submit formal applications as described within this notice. DATES: Entities applying for an allocation of Federal power from Western must submit an application (see Applicant Profile Data (APD) in Section II) through one of the methods described below. Western will accept applications received on or before March 31, 2014. Western reserves the right to not consider any applications received after this date. ADDRESSES: Applications must be submitted to Mr. Darrick Moe, Desert Southwest Regional Manager, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005–6457. Applications may also be faxed to (602) 605–2490 or emailed to Post2017BCP@wapa.gov. Application forms are available upon request or may maindgalligan on DSK5TPTVN1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 17:15 Dec 27, 2013 Mr. Mike Simonton, Public Utilities Specialist, Desert Southwest Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005– 6457, telephone number (602) 605– 2675, email Post2017BCP@wapa.gov. FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF ENERGY Jkt 232001 SUPPLEMENTARY INFORMATION: The BCP was authorized by the Boulder Canyon Project Act of 1928 (43 U.S.C. § 617) (BCPA). Under Section 5 of the BCPA, the Secretary of the Interior marketed the capacity and energy from the BCP under electric service contracts effective through May 31, 1987. In 1977, the power marketing functions of the Secretary of Interior were transferred to Western by Section 302 of the Department of Energy Organization Act (42 U.S.C. 7152) (DOE Act). On December 28, 1984, Western published the Conformed General Consolidated Criteria or Regulations for Boulder City Area Projects (1984 Conformed Criteria) (49 FR 50582) to implement applicable provisions of the Hoover Power Plant Act of 1984 (43 U.S.C. 619) for the marketing of BCP power through September 30, 2017. On December 20, 2011, Congress enacted the Hoover Power Allocation Act of 2011 (Pub. L. 112–72) (HPAA), which provides direction and guidance in marketing BCP power after the existing contracts expire on September 30, 2017. On June 14, 2012, Western published the 2012 Conformed Criteria (77 FR 35671) to implement applicable provisions of the HPAA for the marketing of BCP power from October 1, 2017, through September 30, 2067. The 2012 Conformed Criteria formally established a resource pool defined as ‘‘Schedule D’’ to be allocated to new allottees. In accordance with the HPAA, Western allocated portions of Schedule D to the Arizona Power Authority (APA) and the Colorado River Commission of Nevada (CRC), respectively, as described in the June 14, 2012 Federal Register notice. Of the remaining portions of Schedule D, Western is to allocate 11,510 kilowatts (kW) of contingent capacity and associated firm energy to new allottees within the State of California, and 69,170 kW of contingent capacity and associated firm energy to new allottees within the Boulder City Area (BCA) marketing area as defined in the 2012 Conformed Criteria. PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 On October 30, 2012, Western published proposed marketing criteria to be used in the allocation of the Post2017 Resource Pool. Public information and comment forums were held in Las Vegas, Nevada; Tempe, Arizona; and Ontario, California. Western received comments from existing power contractors, Native American tribes, cooperatives, municipalities, and other potential contractors. Transcripts of the public comment forums, as well as comments received, may be viewed on Western’s Web site at http:// www.wapa.gov/dsw/pwrmkt. Response to Comments on the Post-2017 Resource Pool Marketing Criteria Western received numerous comments on its proposed Post-2017 marketing criteria during the comment period. Western reviewed and considered all comments received. This section summarizes and responds to the comments received on the proposed Post-2017 Resource Pool marketing criteria. Ready, Willing, and Able Comment: Western should provide time flexibility for those seeking transmission arrangements to meet potential ready, willing, and able provisions. Response: Western intends to work with potential allottees to the extent feasible to ensure sufficient transmission arrangements are in place by October 1, 2016. However, it is the allottees’ ultimate responsibility to meet the ready, willing, and able provisions. Comment: Western should accept a Memorandum of Agreement (MOA) or similar documentation between an applicant and a transmission distribution provider as evidence the applicant has met the ready, willing, and able requirements. Requiring applicants to develop and execute contractual agreements prior to notification of an allocation could create an unnecessary political and procedural hardship for some applicants. Response: Applicants will need to demonstrate satisfactory arrangements to meet ready, willing, and able requirements by October 1, 2016. Final allocation determinations are anticipated to be established well in advance of this date. Therefore, applicants should have adequate time to develop and execute any necessary contractual arrangements. Western may accept an MOA or similar documentation between an applicant and a transmission and/or distribution provider if it establishes a legallybinding right of the applicant to receive the required services. E:\FR\FM\30DEN1.SGM 30DEN1 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices maindgalligan on DSK5TPTVN1PROD with NOTICES Comment: Request all applicants, including Native American tribes, be required to meet the same criteria such as the ready, willing, and able requirement. Response: Western finds that certain exceptions for Native American tribes, such as the ready, willing, and able requirement, are consistent with DOE’s American Indian and Alaska Native Tribal Government Policy (Tribal Policy), available at http://energy.gov/ em/downloads/doe-american-indianand-alaska-natives-tribal-governmentpolicy, and recognizes the special and unique relationship between the United States and tribal governments. Western will work cooperatively with all applicants, but has found that additional flexibility in interacting with tribal applicants is important to ensure the successful implementation of tribal allocations. Priority Consideration Comment: The HPAA identifies certain classes of applicants that may ultimately qualify for allocations; it does not identify any mandatory criteria for Western to utilize in prioritizing those allocations. At some point, Western must make such decisions. Western’s proposed prioritization is reasonable to determine fair and equitable allocations. Response: Western agrees with this comment. Western has the need and the authority to prescribe marketing criteria consistent with historical BCP legislation in order to evaluate applications in the allocation of the Post-2017 Resource Pool. Comment: Western proposes a prioritization of preference-eligible entities in making new allocations. What is Western’s statutory authority for making this prioritization? How did Western determine the ranking among preference-eligible entities as proposed? Response: Section 5 of the BCPA and Section 302 of the DOE Act as well as HPAA authorize Western to establish and apply regulations governing BCP allocations, including the formation of project-specific marketing criteria as proposed. Western’s proposed marketing criteria were established to promote widespread use, be consistent with DOE’s Tribal Policy, and respond to the public interest in a finite resource. Western concludes that providing an initial consideration for Native American tribes is appropriate based on comments received, and because tribes are specifically identified by the HPAA as eligible allottees and have not previously received allocations of Hoover power. The remaining eligible entities were prioritized to promote widespread use principles in a manner VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 that supports the public interest. However, after considering comments received, Western has decided not to differentiate among the non-tribal, nonprofit eligible entities in the final marketing criteria. Comment: Reclamation Law and its particular priorities do not apply to the Hoover power allocation process. The BCPA establishes specific power allocation and customer priorities, and these statutory requirements govern the Hoover allocation process. Response: Neither the HPAA nor the BCPA provide for a specific method for determining allocations of BCP power to new entities described in Section 5. Section 5 of the BCPA specifically authorizes the Secretary ‘‘under such general regulations as he may prescribe’’ to contract for the sale of Hoover power and to resolve conflicting applications for the power ‘‘with due regard to the public interest.’’ Western’s public process provides a transparent means of exercising this authority in making final allocations when potential demand is very likely to exceed the available resource to be marketed. Comment: Section 5 of the BCPA governs the allocation of power from Hoover Dam. Section 5(c) of the BCPA gave the three States of Arizona, California, and Nevada the first right, or a super-preference over all other Section 5 applicants, to apply for, obtain and share among themselves in the power generated at the dam. The states’ application takes precedence over any other applicant. Response: Section 5 of the BCPA cannot be applied in isolation in allocating Schedule D power. Under the HPAA substantial portions of BCP power, including portions of Schedule D, have been allocated to entities in Arizona, California, and Nevada, including the Arizona Power Authority and the Colorado River Commission of Nevada as the agencies specified by State law as the agents for their respective states to purchase power from the Boulder Canyon Project. Section 2(d) of the HPAA provides that the remaining Schedule D power must be allocated by Western to entities not receiving Hoover power under Schedules A and B (‘‘new allottees’’). Western concludes that allocating additional Schedule D power to the states would not be consistent with this provision of the HPAA. Furthermore, HPAA’s direction to Western to allocate 33 percent of Schedule D equally to the States of Arizona, California, and Nevada with the remainder to be allocated within the marketing area to new allottees indicates a congressional intent for Western to adhere to its PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 79437 historical practice of allocating the remaining portions of Schedule D based on the load or need of the applicants. The House Report for the HPAA (H.R. Rep. No. 112–159) also states that Western is expected to determine allocations by an assessment of the applicants power needs and act in objective manner consistent with Federal preference standards. Comment: Absent direction from Congress, Western may not selectively implement elements of the BCPA Section 5 to the disadvantage of the ‘‘States,’’ i.e., Arizona, California, and Nevada. Response: Western is not selectively implementing Section 5 of the BCPA to the disadvantage of the states. Section 5 grants the Secretary broad discretion to allocate power in accordance with the public interest and does not require that all BCP power be allocated to the states. Comment: The HPAA did not authorize Western to take actions that would result in the State of Nevada receiving less resource from the pool than it contributed to the pool. Western’s allocation of the 69,170 kW of Schedule D to be marketed within the prescribed marketing area should be made in the same proportion as the states’ respective contributions to the resource pool. Response: The HPAA does not require Western to allocate the remaining portions of Schedule D on a state-bystate basis, and instead requires Western to allocate Schedule D to new allottees within the entire marketing area. Section 5 of the BCPA specifically grants the Secretary broad discretion to allocate power in accordance with the public interest. Western concludes that allocating Schedule D among eligible applicants based on their proportionate peak load serves the public interest while allocating based on the states’ proportionate contributions to the resource pool does not. Comment: Western’s allocations of Hoover resources are governed by the HPAA and the BCPA and are not subject to the Preference Law concept in the 1939 Reclamation Act, so Western may not lawfully designate Rural Electric Cooperatives (Cooperatives) as potential new allottees in its allocation process; particularly when Congress was asked to include Cooperatives in Western’s 69,170 kW allocation process under the HPAA, and declined to do so. Response: Western’s inclusion of Cooperatives among eligible entities is not based on the Reclamation Project Act of 1939, but rather on the language of the BCPA and the HPAA. In Section 5 of the BCPA, Congress identified ‘‘private corporations’’ as eligible E:\FR\FM\30DEN1.SGM 30DEN1 maindgalligan on DSK5TPTVN1PROD with NOTICES 79438 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices entities, together with states, municipal corporations, and political subdivisions (43 U.S.C. 617d). Further, Section 2(d)(2)(C)(i)(I) of the HPAA expressly provides (in relevant part) that Schedule D may be allocated to entities ‘‘eligible to enter into contracts under Section 5 of the Boulder Canyon Project Act. . . .’’ Therefore, under both statutes, Cooperatives as private corporations are eligible to receive allocations under Schedule D. Beyond the language of the statutes, Western finds additional support for its interpretation in House Report 112–159, which specifically lists Cooperatives among entities eligible to receive allocations from the new proposed Schedule D. Comment: The legislative history supporting the HPAA reflects the intent of Congress to ensure that Cooperatives are provided access to the power made available under Schedule D. However, that intent is not brought forth in the proposed marketing criteria, which state that Western will consider an allocation for a Cooperative after considering an allocation for federally recognized Native American tribes, municipal corporations, political subdivisions, irrigation or other districts, and other governmental organizations that have electric utility status. Western should ensure fair and equitable access to Cooperatives of Schedule D power. Response: After considering comments and analyzing various options, Western has established marketing criteria that provide a first consideration to tribes and then treats all Section 5 non-profit entities equally. This results in an aggregation of all Section 5 eligible entities that are nonprofit in nature, including Cooperatives. The first consideration to tribes is not intended to establish a tribal-only pool or to meet all tribal needs prior to other eligible applicants. Therefore, Western anticipates the criteria will provide opportunities to Cooperatives seeking Schedule D power. Comment: Providing priority to Native American tribes, municipal corporations, and political subdivisions ahead of Cooperatives is an unprecedented departure in the treatment of traditional preference entities and is not consistent with the Congressional intent of HPAA. Western should consider applications of tribes on par with the applications of traditional preference entities such as Cooperatives and municipally-owned utilities. Response: Western’s marketing criteria are intended to promote widespread use, be consistent with DOE Tribal Policy, and respond to the public VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 interest in a finite resource. Western has determined that providing an initial priority consideration for Native American tribes is appropriate based on comments received, and because tribes are specifically identified by the HPAA as eligible allottees and have not previously received an allocation of Hoover power. This first consideration for tribes is not intended to establish a tribal-only pool or to meet all tribal needs prior to other eligible applicants. Western anticipates the criteria will provide opportunity to Cooperatives, municipally-owned utilities, and political subdivisions seeking Schedule D power. Comment: Clarity should be made in priority number 2 such that a municipal corporation or political subdivision that receives power and/or support from a Cooperative should retain a second priority and not be demoted to a third priority. Response: Based upon comments received, the proposed priority criteria were modified to consider Cooperatives equally with other non-profit Section 5 entities. The final criteria do not distinguish between a municipal corporation or political subdivision that receives services from a Cooperative and the Cooperative itself. Comment: The 2011 amendments to Section 5 of the BCPA gave federally recognized Indian tribes a preference on an equal basis with other Section 5 applicants. Response: The HPAA establishes Native American tribes as eligible entities to receive power from the BCP. The HPAA does not prescribe a priority, preference, or direction related to Western’s consideration of eligible applicants. Comment: Comments were received that support a first priority to tribes. Priority to tribes will help redress the historic lack of tribal access to project benefits and is consistent with the HPAA, Western’s trust responsibility to tribes, Western’s precedent in other marketing efforts, Western’s administrative discretion as provided in Reclamation Law, underlying Congressional intent, and HPAA’s directive that Western fairly and equitably determines allocations from the new power pool. Response: Western finds merit in the retention of a tribal priority. Western has consistently provided increased opportunities for Native American tribes. Such consideration has been extended to tribes as Western seeks to promote Federal tribal initiatives as described in Title 5 of the Energy Policy Act of 2005 and DOE’s Tribal Policy. The first consideration for tribes does PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 not constitute a tribal-only pool or mean that all tribal needs will be met prior to other eligible applicants. Comment: Allocations should meet the peak tribal demand requirement before allocations are made to the next priority. Response: Western finds merit in the retention of a first consideration for tribes. However, it is anticipated that the demand for Schedule D power will far exceed what is available, and Western is not prescribing a tribal-only pool. Allocating the Post-2017 Resource Pool to fully meet peak tribal demands prior to making allocations to Section 5 entities would likely hinder Western’s ability to allocate Schedule D power to non-tribal entities and would restrict the promotion of widespread use to a diverse base of customers. Comment: Priority for Native American tribes should be capped at a maximum of 50 percent of new power allocations available to all states combined to all or any Native American tribes. Response: After considering comments and analyzing various options, Western has established marketing criteria providing tribes first consideration for an allocation of up to 25 percent of their peak load, considering all Federal power allocations and a 3,000 kW maximum allocation for any applicant. These criteria seek to establish meaningful tribal allocations while also preserving a reasonable portion of Schedule D for new entities eligible under Section 5 to promote widespread use to a diverse base of customers. Comment: Congress did not intend for the federally recognized tribes to have exclusive rights to the Schedule D power, and the priority criteria will operate as such if there are sufficient applications for allocations. Response: Western’s marketing criteria does not establish a tribal-only pool; the first consideration given to tribes will extend up to 25 percent of their peak loads, considering all Federal power allocations and the 3,000 kW maximum allocation for any applicant. These criteria seek to establish meaningful tribal allocations while also preserving a reasonable portion of Schedule D power for new entities eligible under Section 5 to promote widespread use to a diverse base of customers. Comment: There should be no priority among all BCPA Section 5 entities and federally recognized Native American tribes. Allocations should be based on other marketing criteria elements, such as the actual load or energy demand of each applicant, whether the applicant E:\FR\FM\30DEN1.SGM 30DEN1 maindgalligan on DSK5TPTVN1PROD with NOTICES Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices already receives the benefits of a Federal power resource, and the applicant’s ability to take delivery of the energy to meet their load. Response: After considering comments and analyzing various options, Western has retained a first consideration for tribes, but modified the marketing criteria to aggregate all Section 5 eligible entities that are nonprofit in nature for allocations after meeting up to 25 percent of tribal peak load when considering all Federal allocations. Comment: Public water agencies should have an equal opportunity to obtain Federal energy resources that are reserved for the public benefit. The provision of public utility service is of equal benefit to the public, whether the utility is water or electric service. Response: After considering comments and analyzing various options, Western has established marketing criteria that aggregates all Section 5 eligible entities that are nonprofit in nature. Therefore, water and electric utilities will be treated equally. Comment: Absent direction from Congress, Western may not impose an ‘‘electric utility status’’ priority or requirement on potential allottees, particularly when Congress declined to adopt a proposed amendment to the HPAA seeking preference for fullservice public power providers. Giving priority to entities having electric utility status would eliminate or at least prejudice the status of all otherwise eligible applicants who are customers of electric utilities. The marketing criteria should include municipal corporations and political subdivisions including irrigation or other districts, municipalities and other governmental organization without electric utility status. Western should eliminate the priority for having electric utility status. Response: After considering comments and analyzing various options, Western has determined there is no need to retain the provisions regarding electrical utility status for establishing allocations. Comment: Comments were received that support Western’s continued adherence to its historic policy of allocating Hoover power to new tribal customers without regard to their ‘‘electric utility status.’’ This supports broad inclusion of new tribal customers, and nothing in the legislation or legislative record contradicts Western’s adherence to this practice with respect to the Hoover allocation. Response: After considering comments and analyzing various priority options, Western has not VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 retained an electrical utility status priority or requirement for applicants. Comment: There is no statutory requirement linking eligibility to an entity having electric utility responsibility, nor ownership of electric distribution facilities. Support the inclusion of public utilities other than electric utilities as it is essential to meet the ‘‘widest use’’ statutory requirements and public policy objectives. Response: After considering comments and analyzing various priority options, Western has not retained an electrical utility status priority or requirement for applicants. Comment: The proposed criteria properly give priority to municipal utilities and irrigation districts. Such entities should receive priority in the Post-2017 remarketing. Response: After considering comments and analyzing various options, Western has established marketing criteria that aggregates all Section 5 eligible entities that are nonprofit in nature for allocations after meeting 25 percent of tribal peak load when considering all Federal allocations. Comment: The HPAA provides for Schedule D for ‘‘entities not receiving contingent capacity and firm energy under subparagraphs (A) and (B). . . .’’ Western’s proposed marketing criteria do not include that criterion. The marketing criteria must adhere to statutory directives in the allocation of the Post 2017 Resource Pool. Response: Part VI Section D of the 2012 Conformed Criteria states in part that ‘‘Western shall offer Schedule D contingent capacity and firm energy to entities not receiving contingent capacity and firm energy under Section A (Schedule A) or Section B (Section B) (referred to herein as ‘‘New Allottees’’) for delivery commencing October 1, 2017.’’ Therefore Western’s marketing criteria does adhere to applicable statutory directives. Based on comments received, Western has further clarified in the final marketing criteria that entities receiving Schedule A or Schedule B contingent capacity and firm energy from APA or CRC will not be eligible for an allocation as a new allottee. Comment: If there is insufficient power available for interested and eligible entities within a subgroup, Western should give priority to applicants within each tier that would use the resource to advance environmental objectives. Response: After considering this comment, Western has determined not to adopt the suggested priority for applicants that would advance PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 79439 environmental objectives. Such a priority is not addressed in either the BCPA or HPAA, and Western is not aware of applicable criteria to determine which uses would advance environmental objectives. Comment: Western should avoid allocation to only the first priority tier in order to promote widespread use to a diverse base of customers. Western should reserve portions of power for subsequent tiers to meet demands of more than just the first priority tier. Response: Western agrees with this comment. Although final allocations are dependent upon the applications received, Western does not anticipate allocating the entire Schedule D resource pool to a single category. In response to comments of this nature, Western has established a 3,000 kW maximum allocation. The 3,000 kW maximum allocation will be applied to all entities receiving an allocation of Schedule D. The final marketing criteria seek to establish meaningful tribal allocations and preserve a reasonable portion of Schedule D power for new entities eligible under Section 5 to promote widespread use to a diverse base of customers. Comment: Would there be any power reserved for each priority group? Response: Final allocations are dependent upon the applications received. However, Western anticipates allocating power to both tribal entities and entities eligible under Section 5 of the BCPA. In response to comments of this nature, Western has established a 3,000 kW maximum allocation. The maximum allocation criterion will help promote widespread use to a diverse base of customers. Comment: With regard to municipal water utilities, what is meant by the independently governed standard? Response: After considering comments, Western has eliminated this requirement. Comment: If allocating to an aggregated entity, is its priority established by the nature of its members, or its own nature? Response: Eligibility and priority will be determined based upon the nature of the applying entity. All members of an aggregated entity must be themselves defined as an eligible entity. Consideration of Existing Federal Power Resource Allocations: Comment: In this Hoover allocation effort, Western should impose a maximum of five percent reduction on new tribal customers receiving the benefit of other Federal hydropower resources. E:\FR\FM\30DEN1.SGM 30DEN1 maindgalligan on DSK5TPTVN1PROD with NOTICES 79440 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices Response: Under Western’s marketing criteria, first consideration will be given to tribes for up to 25 percent of their peak loads considering all Federal power allocations. Western finds merit in considering the direct or indirect benefits of all Federal power allocations of all applicants, without limitation, to ensure Federal power is spread widely and equitably among eligible entities. Comment: In order to advance the ‘‘widest use’’ public policy objective, Western should deem entities currently receiving any Western allocation, not just BCP resources, to be ineligible for Schedule D resources. Response: Western will not deem entities to be ineligible based solely upon existing Western allocations from other projects; however, all existing Western allocations will be considered in the allocation process to advance widespread use principles. Comment: While it is understood that Western has not proposed to exclude or reprioritize tribes that currently have an allocation of Federal power, tribes should not be blocked from receiving an allocation, by disqualification or reprioritization, on the basis of a prior Federal resource allocation. Response: Western will not prevent a tribe from receiving an allocation solely because it currently receives an allocation from another Western project. First consideration will be given to tribes to receive up to 25 percent of their peak loads considering all Federal power allocations. Comment: Preference should be given first to tribes, regardless of receiving any other Federal hydropower allocation, and then to non-tribal entities, if there is any Hoover power left. Response: Western’s marketing criteria does provide first consideration to tribes for up to 25 percent of their peak loads considering all Federal power allocations. Western finds merit in providing opportunity for non-tribal applicants and that it is consistent with the intent of the HPAA. Western anticipates the marketing criteria will promote Federal tribal initiatives and provide opportunity for non-tribal applicants. Comment: Western should consider other Federal power allocations as well as the availability of other lower cost power to the applicants. Greater consideration should be given in instances where Hoover power is the only lower cost power available to the applicant. First priority should be provided to eligible entities that currently do not have a contract with Western for Federal power resources or are not a member of a parent entity that VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 has a contract with Western for Federal power. Response: Western will consider any other Federal power allocations the applicants receive, either directly from Western or indirectly through a parent or host entity, when making allocation determinations, but will not consider the price of power as prices change over time and there are a number of variables that may be influencing such prices. Load Data and Application Assistance Comment: Technical assistance provided by Western in the preparation of an application for Hoover power should be made available equally to any eligible applicant. Response: Western agrees with this comment and will endeavor to assist all those in need of technical assistance. Comment: Western should seek representative load data from applicants when available and allow applicants to supplement such load data with other information, including aggregated load data, to support any request for an allocation as well as estimating loads where historical information is not available. Recommend Western consider new or future loads in establishing allocations. Response: Western will base allocations to eligible applicants on actual loads experienced in one of the last three calendar years, i.e., calendar years 2011, 2012, or 2013, as designated by the applicant. For Native American tribes, Western may use estimated load values if actual load data is not available. An applicant will be able to submit other information it deems pertinent to receiving an allocation. Such information will be considered at Western’s discretion. Consideration of future loads would introduce speculation and unquantifiable collective risk across all applicants and will not be the foundation of establishing allocations. Comment: Suggest Western consider allowing applicants to provide a broader range of load history than just one year at their election. Western should allow consideration of the historical load experienced by an eligible applicant over the previous three year period if an applicant can demonstrate significant load/demand variance and can explain the basis for the variance. Response: Western will base allocations to eligible applicants on actual loads experienced in one of the last three calendar years, i.e., calendar years 2011, 2012, or 2013, as designated by the applicant. For Native American tribes, Western may use estimated load values if actual load data is not available. Western anticipates that this PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 will provide additional flexibility than the proposed most recent calendar year and will maintain a comparable and manageable basis for allocations. Minimum Allocation and Aggregation Comment: Western should not allocate Hoover power that has access to the dynamic signal in such small increments as to be non-cost-effective. Response: Under the HPAA and the 2012 Conformed Criteria, all BCP Contractors are entitled access to the dynamic signal regardless of the size of their allocation. While allocations may be made as small as 100 kW, Western’s anticipates the establishment of operational protocols to enable Western and the contractors to meet industry scheduling parameters such as scheduling in whole megawatt (MW) values. These operational protocols may assist in the cost effectiveness of managing small allocations. Comment: Western has stated that the administrative costs associated with dealing with small allocations will be subsumed into general administrative costs and spread over the entire allocation base. Why would other allottees be required to subsidize a cost that can be allocated directly to a particular allottee? Is this subsidy going to reach across all Hoover contractors? Response: Western’s costs for the administration of power allocations are tracked and accounted for each Federal project at the functional activity level (scheduling, dispatching, marketing, etc.,) rather than for each contractor. This is true of all Federal projects administered by Western, including the BCP. These costs are aggregated and included in the Federal project’s revenue requirement. Each contractor pays its proportionate share of the revenue requirement on a per unit cost basis. This accounting treatment conforms to generally accepted accounting principles and is consistent with Federal Energy Regulatory Commission (FERC) regulations, FERC’s prescribed uniform system of accounts for electric utilities, and DOE’s accounting practices. Western concludes this is an acceptable means of cost recovery across customers of variable allocations sizes. Comment: Western can appropriately address its allocation rounding concerns solely through operational protocols. Response: Western agrees with this comment and, therefore, has lowered the minimum allocation threshold for the BCP from 1,000 kW to 100 kW. Western anticipates establishing operational protocols in the contracting process to minimize rounding and other E:\FR\FM\30DEN1.SGM 30DEN1 maindgalligan on DSK5TPTVN1PROD with NOTICES Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices issues associated with the delivery of small allocations. Comment: The commenter supported the ability of applicants to aggregate loads to meet minimum allocation requirements. Response: Western’s proposed marketing criteria included minimum allocations of 1,000 kW; Western also proposed allowing applicants to aggregate their loads to meet this requirement. After considering comments, Western is adopting a minimum allocation of 100 kW for each applicant, which may include an aggregated entity. However, note that scheduling protocols require a 1 megawatt (MW) minimum; therefore, smaller entities will likely need to formulate aggregation arrangements to facilitate deliveries. The adoption of a much lower minimum allocation is anticipated to eliminate the need for aggregation for allocation purposes. Comment: Support for the establishment of allocation criteria that provides tribes with maximum flexibility to access Schedule D power. Western should ensure that the implementation of an aggregation mechanism does not result in a loss of Schedule D power to new entities due to a given allottee’s inability to meet Western’s aggregation standards. Western must implement the tribal priority to ensure that allocations to willing and eligible Schedule D allottees are satisfied to the maximum extent feasible prior to the returning any Schedule D power to Schedule A and B contractors. Response: After considering comments, Western is adopting a minimum allocation of 100 kW for each applicant, which may include an aggregated entity. Therefore, perceived risk associated with aggregation to receive an allocation has been minimized. Western agrees that efforts should be made to distribute Schedule D power to new allottees. Therefore, Western has established marketing criteria element ‘‘M’’, which results in allocated Schedule D resource that is not put under contract by October 1, 2016, to be redistributed to other new allottees that have been allocated and contracted for Schedule D with Western. This criterion is anticipated to ensure all of the Schedule D resource that Western allocates will be retained by new allottees. Comment: Comments were received that oppose any minimum allocation. Western has not demonstrated sufficient justification to require the proposed minimum 1,000 kW allocation criteria or to require new customers to enter into an ‘‘aggregation arrangement’’ in VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 order to satisfy the requirement. Western has offered no justification for the minimum allocation criteria other than for its own convenience, which, by itself, is not a justification. This requirement penalizes the smallest scale new customers, a group consisting overwhelmingly of small tribes in the service area. Western should proceed without of a minimum allocation requirement. Response: After considering comments, Western is adopting a minimum allocation of 100 kW for each applicant, which may include an aggregated entity. The 100 kW minimum has been established to assist Western in adhering to sound business principles when establishing allocations. An allocation of less than 100 kW is of such a small magnitude it has historically not yielded meaningful value to the allottee. In times in which a benefit or bill crediting arrangement has been sought, allocations of less than 100 kW have experienced significant difficulty in acquiring a benefit or bill crediting partner willing to engage in transactions for this quantity of power. This 100 kW minimum allocation threshold has been successfully applied in other Western marketing efforts and Western finds merit in establishing it for this allocation process. Comment: Linking individual allocations with some type of allocation share penalty due to scale is unprecedented and without justification. Western regularly manages the Hoover and other hydropower resources in less than full megawatt quantities. Therefore, given the total number of potential new tribal Hoover customers, Western’s approach of only whole megawatt allocations would be prejudicial and would only penalize tribes. Response: Western has historically established minimum allocation and/or load thresholds to maintain sound business principles. After considering comments, Western has eliminated a 1,000 kW minimum allocation and is instead adopting a minimum allocation of 100 kW. This significant reduction in the minimum allocation provides opportunity for small applicants while also establishing a practical threshold to ensure the allocation has sufficient value to warrant its implementation. However, note that scheduling protocols require a 1 MW minimum; therefore, smaller entities will likely need to formulate aggregation arrangements to facilitate deliveries. Comment: Further clarification is needed for an applicant seeking an allocation of less than 1,000 kW. When would communication of how PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 79441 scheduling arrangements will work be expected? Since all non-tribal Arizona allocations will be going through the APA, would those arrangements be sufficient to meet any load aggregation requirements? Response: After considering comments, Western has eliminated a 1,000 kW minimum allocation and is instead adopting a minimum allocation of 100 kW for each applicant, which may include an aggregated entity. Communications concerning scheduling arrangements and other operational related issues will occur during the contracting process. Allocations to nontribal Arizona applicants offered through the APA will not be considered an aggregation arrangement. Applicants seeking less than 100 kW must meet the load aggregation requirements in some other manner. Comment: The aggregation concept is vague as defined. Western should utilize the aggregation concept consistent with its historic allowance for aggregation on a voluntary basis in arranging for allocation scheduling and/or delivery. Allocating less than whole megawatts to tribes will not end up creating scheduling and operational problems for Western. Due to the limited number of tribal utilities, the vast majority of tribes would need to enter into some type of benefit crediting arrangement. This would achieve Western’s expressed goal of aggregating the less than whole megawatt allocations. Response: Western’s proposed marketing criteria included minimum allocations of 1,000 kW and allowed applicants to aggregate their loads to meet this requirement. After considering comments, Western is instead adopting a minimum allocation of 100 kW for each applicant, which may include an aggregated entity. Western anticipates establishing operational protocols in the contracting process to minimize issues associated with the delivery of small allocations. Comment: Western should accept a MOA or similar document between members of an aggregated group as demonstration of the group’s intention and ability to apply for an aggregate load. Response: To be considered for an allocation, the aggregated group, as the applicant, must be an eligible entity as defined by the HPAA and the 2012 Conformed Criteria, and must provide sufficient documentation demonstrating this eligibility. All members of an aggregated entity must be themselves defined as an eligible entity. Western may accept the use of a MOA or similar documentation between members of an aggregated group as demonstration of E:\FR\FM\30DEN1.SGM 30DEN1 79442 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices maindgalligan on DSK5TPTVN1PROD with NOTICES the group’s intention and ability to apply for an aggregate load if it establishes a legitimate, legally-binding aggregation of the members as determined by Western. Comment: Western should address the authority for allottees to join together and the nature of their ability to do so in terms of the type of entity that would have to be utilized. Where do these envisioned entities classify under Section 5 of the BCPA eligibility definition? Response: In order to be eligible for an allocation, the entity submitting the application must either be a Native American tribe or a Section 5 entity. The determination of whether the applicant meets these requirements will be made on a case-by-case basis. Economic Benefit to Tribes Comment: The HPAA makes specific reference to the Secretary of Energy obligation to offer capacity and energy under Schedule D. While Western may desire flexibility to provide an equivalent benefit as set forth in subsection L, the statutory language of the HPAA limits the Secretary to providing contingent capacity and firm energy. Response: The HPAA requires that Western allocate the contingent capacity and firm energy to eligible entities by December 2014, and place it under contract by October 1, 2017. It does not prohibit Western from including provisions in the contracts to provide the economic benefits to allottees should issues with the delivery of the service occur. It is anticipated that economic benefits would be achieved through arrangements with third-party benefit-crediting or bill-crediting partners. Comment: Western should clarify what is meant by ‘‘unanticipated obstacles’’ and ‘‘economic benefit’’ as these terms are used in these proposed criterion. This criterion should either be eliminated or applied to all eligible applicants equally. Response: The phrase ‘‘unanticipated obstacles’’ refers to unexpected barriers to delivery of the electric service. In such instance, Western will follow its historic practice of allowing tribes to contract with a third-party for benefit or bill-crediting arrangements yielding the economic value (economic benefit) of the delivered power directly to the tribe. This will only be available to tribes. Additional Marketing Criteria Comments Comment: Requirements to execute a contract within six months of receiving a contract offer from Western and VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 requirements related to transmission or distribution service in place by October 1, 2016 are acceptable. Response: Western agrees with these comments and has retained this requirement. Comment: Western’s marketing effort schedule should be compressed to establish final allocations sooner than the summer of 2014 in order to provide tribes more time to reach contractual arrangement for the beneficial delivery of Hoover power to their communities. Response: Western intends to complete the marketing effort through a public process as soon as possible, but anticipates that this will occur in the summer of 2014. Comment: Western should adopt the plain language of the HPAA defining ‘‘new allottees’’ as ‘‘entities not receiving contingent capacity and firm energy’’ under Schedules A and B, and the clear intent of Congress to ‘‘further allocate and expand the availability of hydroelectric power generated at Hoover Dam.’’ Existing customers of APA and CRC who have a suballocation for Schedules A and B through APA or CRC should not be eligible applicants for Schedule D from Western. All applicants should only be eligible to receive only one allocation of power among all the available Schedule D established via the HPAA. Response: The HPAA defines ‘‘new allottees’’ as entities not receiving contingent capacity and firm energy under Schedule A and Schedule B. This definition excludes not only the contractors named in those schedules, but also entities receiving suballocations of the capacity and energy. Therefore, neither the listed contractors nor their sub-allottees will be eligible for an allocation from the Post-2017 Resource Pool. Post-2017 suballocations of BCP power made by APA or CRC subsequent to Western’s allocation process are to be established through the respective APA or CRC allocation process. Comment: The HPAA indicates that Schedule D is intended to go to new allottees, which are entities that are not named in the legislation. APA customers are not named in the legislation. APA customers have no assurances that anything allocated to APA will come their way. APA customers should be treated as potential new allottees to avoid potential exclusion. Request further explanation on how Western intends to proceed. Response: The HPAA defines ‘‘new allottees’’ as entities not receiving contingent capacity and firm energy under Schedule A and Schedule B, and not as entities that are not named in the PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 legislation. Therefore, Western will not provide an allocation to any entity currently receiving Schedule A or Schedule B power. Comment: Western should consider allocation to existing APA customers with withdrawal provisions in the event that allottee was to be allocated further BCP resource from APA. Response: Western has not adopted this proposal. The HPAA requires Western to allocate Schedule D power by December 2014 for delivery commencing on October 1, 2017. It is currently unclear when APA allocations will be made. Western cannot ensure there would be sufficient time to make subsequent allocations and contracts for any Schedule D power made available after conclusion of the APA process. Western concludes that implementation of its allocation process contingent upon such external factors is not practical. Comment: Western may not, through its administrative processes, impose standards, requirements or limitations on potential new allottees, that are inconsistent with or not authorized by Federal law specific to the BCP. Response: Western’s marketing criteria are in compliance with Federal law specific to the BCP. Comment: Western must contract directly with each tribe receiving Hoover power. Western has identified no precedent for deviation from such a practice and, in fact, Western has never contracted in any manner other than directly with its allocation recipients. Response: Western intends to contract directly with each tribe receiving an allocation. Comment: Western should clarify how it will treat customers eligible for/ receiving Hoover allocations through the States of Nevada or Arizona. Response: The HPAA states that the Western Schedule D allocations in Arizona and Nevada to other than Native American tribes are to be offered through APA and CRC, respectively. Therefore, after making any allocations to non-tribal entities in those states, Western will contractually provide the capacity and energy to APA and/or CRC, which will contract directly with the allottee. The contracts between APA and/or CRC and the allottee must contain all contract terms required by the HPAA, the 2012 Conformed Criteria, and any necessary provisions prescribed in Western’s contracts with APA and/or CRC. Comment: Western should publish in a single document all of its criteria and regulations regarding or impacting BCP, including the relevant portions of the 1984 marketing criteria as well as the material resulting from its actions on the E:\FR\FM\30DEN1.SGM 30DEN1 maindgalligan on DSK5TPTVN1PROD with NOTICES Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices June 14, 2012, and October 30, 2012 Federal Register notices. Response: Although Western will not combine all that information into one hard copy document, those materials are all available for review at Western’s BCP Web site located at http:// www.wapa.gov/dsw/pwrmkt/BCP_ Remarketing/BCP_Remarketing.htm. Comment: Western’s identified procedure to address the allocation of Schedule D is vague. Matters not clarified by Western’s proposed criteria may constitute a new agency action. Western must provide a supplemental opportunity to address any new criteria created as part of this public comment process prior to making any allocations. Response: There are no new criteria contained in this notice. The final criteria are all refinements of the proposed criteria developed in consideration of the comments Western has received. Therefore, Western concludes that it is not necessary to conduct further public processes to establish these marketing criteria. Comment: Western should explain the formula for determining and allocating excess energy in written procedures during the allocation process. Response: This process concerns only the allocation of Schedule D power and not the allocation of Schedule C excess energy under the HPAA. Therefore, no explanation or procedures concerning excess energy are being provided in this notice. Comment: All applicants should only be eligible to receive one allocation of BCP power from Western or APA and/ or CRC. Response: After considering this comment, Western is not promulgating additional requirements or regulations to be imposed within the APA and/or CRC BCP allocation efforts. Western does not have the authority to prescribe requirements upon APA and CRC in their processes for marketing BCP power within their respective states. These provisions are also not provided for in either the BCPA or the HPAA. Comment: Western should clarify in the final marketing criteria that the revised marketing criteria for Post-2017 apply solely to the allocation of Schedule D resources made available by the HPAA. Support a fair, transparent, detailed, and documented written process via the public record for the allocation of BCP resources. Response: Western agrees with this comment and believes that it has appropriately done so. Western is adopting the final marketing criteria after considering comments received through its public process. VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 Comment: Questions were submitted concerning a potential applicant’s load location relative to the BCA marketing area and the contract terms that will be applicable to the sale of BCP power, such as if Hoover power is considered green/renewable, if any purchased firming power would be green/ renewable, treatment of transactions with an Independent System Operator (ISO), ISO scheduling points, and provision of referenced documents and related contracts. Response: Questions of this nature are outside the scope of the marketing criteria proposals. Questions concerning contract terms and individual applicants will be addressed later in the marketing process, as appropriate. I. Final Post-2017 Resource Pool Marketing Criteria The following general marketing criteria shall be applied to applicants seeking an allocation of power from the Post-2017 Resource Pool. This includes the 69.17 MW of Schedule D to be allocated within the entire marketing area and the additional 11.51 MW of Schedule D to be allocated within the State of California. A. Allocations of power will be made in amounts determined solely by Western in the exercise of its discretion under Reclamation Law, including the HPAA. B. Allocations will be made only to new allottees, defined in the HPAA as entities not receiving Schedule A and Schedule B contingent capacity and firm energy. An entity receiving Schedule A or Schedule B contingent capacity and firm energy from APA or CRC will not be eligible for an allocation as a new allottee. C. An allottee may purchase power only upon the execution of an electric service contract and satisfaction of all conditions stated within that contract. D. Eligible applicants, except Native American tribes, must be ready, willing, and able to receive and distribute or use power from Western. Ready, willing, and able means the eligible applicant has the facilities needed for the receipt of power or has made the necessary arrangements for transmission and/or distribution service, and its power supply contracts with third parties permit the delivery of Western’s power. Eligible applicants must have the necessary arrangements for transmission and/or distribution service in place by October 1, 2016. E. An eligible Native American applicant must be an Indian tribe as defined in the Indian Self Determination Act of 1975, 25 U.S.C. § 450b, as amended. PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 79443 F. Eligible Native American tribes will receive first consideration for an allocation of BCP sufficient to provide Federal hydropower up to 25 percent of their peak load in consideration of criterion element G. G. In making allocations, Western will consider the amount of the applicant’s load already served by existing Federal power resource allocations. H. Remaining Schedule D shall be allocated to non-profit applicants eligible under Section 5 of the BCPA in proportion to their peak loads. I. Western will base allocations to all eligible applicants on actual loads experienced in one of the last three calendar years including calendar years 2011, 2012, or 2013, as designated by the applicant. For Native American tribes, Western may use estimated load values if actual load data is not available. Western will evaluate and may adjust inconsistent estimates during the allocation process. Western is available to assist tribes in developing load estimates if necessary. J. The minimum allocation shall be 100 kW. K. The maximum allocation shall be 3,000 kW. L. Contractors must execute electric service contracts within six months of receiving a contract offer from Western, unless Western agrees otherwise in writing. M. Any allocated Post-2017 Resource Pool power not under contract by October 1, 2016, shall be redistributed on a pro-rata basis to the remaining Post-2017 Resource Pool new allottees. In the execution of this redistribution, criteria elements F and K may be waived at Western’s discretion. Any Post-2017 Resource Pool power not allocated and under contract by October 1, 2017, shall be distributed in accordance with the 2012 Conformed Criteria. N. If unanticipated obstacles to the delivery of electric service to a Native American tribe arise, Western will allow the economic benefit of the resource to be provided to the tribe through benefitcrediting or bill-crediting arrangements. II. Applications for Power This notice formally requests applications from qualified entities seeking to purchase Federal power from the Post-2017 Resource Pool. Western is requesting the APD to provide a uniform basis for evaluating applications. To be considered, qualified entities must submit an application to the Western Area Power Administration Desert Southwest Region as requested below. To ensure full consideration for all applicants, Western reserves the right to E:\FR\FM\30DEN1.SGM 30DEN1 79444 Federal Register / Vol. 78, No. 250 / Monday, December 30, 2013 / Notices maindgalligan on DSK5TPTVN1PROD with NOTICES not consider applications submitted before publication of this notice or after the deadline specified in the DATES section. Application forms are available upon request or may be accessed and/ or submitted online at http:// www.wapa.gov/dsw/pwrmkt/BCP_ Remarketing/BCP_Remarketing.htm. Applicant Profile Data Application The content and format of the APD are outlined below. Applicants must provide all requested information, or the most reasonable available estimate, or should indicate ‘‘not applicable’’ if they have no information to be considered for a requested item. Western is not responsible for errors in data or missing pages. All items of information in the APD should be answered as if prepared by the entity seeking the allocation. The APD includes the following: 1. Applicant: a. Applicant’s (entity requesting a new allocation) name and address. b. Person(s) representing applicant: Please provide the name, title, address, telephone and fax number, and email address of such person(s). c. Type of organization: For example, Federal or state agency, irrigation district, municipal, rural, industrial user, municipality, Native American tribe, public utility district, or rural electric cooperative. d. Parent organization of applicant, if any. e. Name of members or suballottees, if any. f. Applicable law under which the organization was established. g. Applicant’s geographic service area: If available, submit a map of the service area, and indicate the date prepared. h. Describe the entity/organization that will interact with Western on contract and billing matters. i. The amount of power the applicant is requesting to be provided by Western. 2. Loads: a. All Applicants: i. If applicable, number and type of customers served in one of the last three calendar years including calendar years 2011, 2012, or 2013; e.g., residential, commercial, industrial, military base, agricultural. ii. The actual monthly maximum demand (in kilowatts) and energy use (in kilowatt hours) experienced in one of the last three calendar years including calendar years 2011, 2012, or 2013. iii. For Native American tribe applicants, if actual demand and energy data is not available, provide estimated monthly demand (in kilowatts) with a description of the method and basis for this estimated demand. VerDate Mar<15>2010 17:15 Dec 27, 2013 Jkt 232001 3. Resources: a. A list of current power supplies, including the applicant’s own generation and purchases from others. For each supply, provide the amount of capacity received from that power supply and its location. b. Status of power supply contract(s), including a contract termination date. Indicate whether power supply is on a firm basis or some other type of arrangement. 4. Transmission: a. Point(s) of delivery: BCP will be delivered at Mead Substation. Applicants may provide preferred point(s) of delivery on Western’s transmission system or a third party’s system and the required service voltage. The applicant will ultimately be responsible for acquiring transmission to alternate delivery points. b. Transmission arrangement: Describe the applicant’s transmission arrangements necessary to deliver power to the requested points of delivery beyond Western’s transmission system. Provide a single-line drawing of applicant’s system, if available. c. Provide a brief explanation of the applicant’s ability to receive and use, or receive and distribute Federal power as of October 1, 2017. 5. Other Information: The applicant may provide any other information pertinent to receiving an allocation. 6. Signature: The signature and title of an appropriate official who is able to attest to the validity of the APD and who is authorized to submit the request for an allocation is required. Western’s Consideration of Applications Upon receiving the APD, Western will verify that the applicant meets the eligibility criteria contained in the 2012 Conformed Criteria and that the application contains all information requested in the APD. a. Western may request, in writing, additional information from any applicant whose APD is determined to be deficient. The applicant will have 15 calendar days from the date on Western’s letter of request to provide the information. b. If Western determines the applicant does not meet the eligibility criteria, Western will send a letter explaining why the applicant did not qualify. c. If the applicant has met the eligibility criteria, Western, through the public process, will determine the amount of power, if any, to allocate in accordance with the marketing criteria. Western will send a draft contract to the applicant that identifies the terms and conditions of the offer and the amount of power allocated to the applicant. PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 Regulatory Procedure Requirements Determination Under Executive Order 12866 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 is required. Environmental Compliance In accordance with the DOE National Environmental Policy Act Implementing Procedures (10 CFR 1021), Western has determined that these actions fit within a class of action B4.1 Contracts, policies, and marketing and allocation plans for electric power, in Appendix B to Subpart D to Part 1021—Categorical Exclusions Applicable to Specific Agency Actions. Dated: December 17, 2013 Mark A. Gabriel, Administrator. [FR Doc. 2013–31214 Filed 12–27–13; 8:45 am] BILLING CODE 6450–01–P DEPARTMENT OF ENERGY Western Area Power Administration Loveland Area Projects—2025 Power Marketing Initiative Western Area Power Administration, DOE. ACTION: Notice of Final 2025 Power Marketing Initiative. AGENCY: Western Area Power Administration (Western), Rocky Mountain Region, a Federal power marketing agency of the Department of Energy (DOE), announces the 2025 Power Marketing Initiative (2025 PMI). The 2025 PMI provides the basis for marketing the long-term firm hydroelectric resources of the Loveland Area Projects (LAP) beginning with the Federal fiscal year 2025. Western’s Firm Electric Service (FES) contracts associated with the current marketing plan expire September 30, 2024. The 2025 PMI extends the current marketing plan, with amendments to key marketing plan principles. Western’s proposed 2025 PMI was published in the Federal Register on October 17, 2011. Responses to public comments are included in this notice. This Federal Register notice is published to announce Western’s decisions for the 2025 PMI. DATES: The 2025 PMI will become effective January 29, 2014. ADDRESSES: Information regarding the 2025 PMI, including comments, letters, and other supporting documents made SUMMARY: E:\FR\FM\30DEN1.SGM 30DEN1

Agencies

[Federal Register Volume 78, Number 250 (Monday, December 30, 2013)]
[Notices]
[Pages 79436-79444]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-31214]


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

DEPARTMENT OF ENERGY

Western Area Power Administration


Boulder Canyon Project--Post-2017 Resource Pool

AGENCY: Western Area Power Administration, DOE.

ACTION: Notice of final marketing criteria and call for applications.

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

SUMMARY: The Western Area Power Administration (Western), a Federal 
power marketing agency of the Department of Energy (DOE), announces the 
Boulder Canyon Project (BCP) post-2017 resource pool marketing criteria 
and is calling for applications from entities interested in an 
allocation of Federal power from the BCP. The Conformed Power Marketing 
Criteria or Regulations for the Boulder Canyon Project (2012 Conformed 
Criteria) published in the Federal Register on June 14, 2012, as 
required by the Hoover Power Allocation Act of 2011, established 
general eligibility criteria and a resource pool (Post-2017 Resource 
Pool) to be allocated to new allottees. Western has finalized marketing 
criteria, developed through a public process, to be used to allocate 
the Post-2017 Resource Pool, which will become available October 1, 
2017. These marketing criteria, in conjunction with the 2012 Conformed 
Criteria, establish the framework for allocating power from the Post-
2017 Resource Pool. Entities applying for an allocation of power from 
the Post-2017 Resource Pool must submit formal applications as 
described within this notice.

DATES: Entities applying for an allocation of Federal power from 
Western must submit an application (see Applicant Profile Data (APD) in 
Section II) through one of the methods described below. Western will 
accept applications received on or before March 31, 2014. Western 
reserves the right to not consider any applications received after this 
date.

ADDRESSES: Applications must be submitted to Mr. Darrick Moe, Desert 
Southwest Regional Manager, Western Area Power Administration, P.O. Box 
6457, Phoenix, AZ 85005-6457. Applications may also be faxed to (602) 
605-2490 or emailed to Post2017BCP@wapa.gov. Application forms are 
available upon request or may be accessed and/or submitted online at 
http://www.wapa.gov/dsw/pwrmkt/BCP_Remarketing/BCP_Remarketing.htm. 
Applicants are encouraged to use the application form provided at the 
above Web site.

FOR FURTHER INFORMATION CONTACT: Mr. Mike Simonton, Public Utilities 
Specialist, Desert Southwest Region, Western Area Power Administration, 
P.O. Box 6457, Phoenix, AZ 85005-6457, telephone number (602) 605-2675, 
email Post2017BCP@wapa.gov.

SUPPLEMENTARY INFORMATION: 
    The BCP was authorized by the Boulder Canyon Project Act of 1928 
(43 U.S.C. Sec.  617) (BCPA). Under Section 5 of the BCPA, the 
Secretary of the Interior marketed the capacity and energy from the BCP 
under electric service contracts effective through May 31, 1987. In 
1977, the power marketing functions of the Secretary of Interior were 
transferred to Western by Section 302 of the Department of Energy 
Organization Act (42 U.S.C. 7152) (DOE Act). On December 28, 1984, 
Western published the Conformed General Consolidated Criteria or 
Regulations for Boulder City Area Projects (1984 Conformed Criteria) 
(49 FR 50582) to implement applicable provisions of the Hoover Power 
Plant Act of 1984 (43 U.S.C. 619) for the marketing of BCP power 
through September 30, 2017.
    On December 20, 2011, Congress enacted the Hoover Power Allocation 
Act of 2011 (Pub. L. 112-72) (HPAA), which provides direction and 
guidance in marketing BCP power after the existing contracts expire on 
September 30, 2017. On June 14, 2012, Western published the 2012 
Conformed Criteria (77 FR 35671) to implement applicable provisions of 
the HPAA for the marketing of BCP power from October 1, 2017, through 
September 30, 2067. The 2012 Conformed Criteria formally established a 
resource pool defined as ``Schedule D'' to be allocated to new 
allottees. In accordance with the HPAA, Western allocated portions of 
Schedule D to the Arizona Power Authority (APA) and the Colorado River 
Commission of Nevada (CRC), respectively, as described in the June 14, 
2012 Federal Register notice. Of the remaining portions of Schedule D, 
Western is to allocate 11,510 kilowatts (kW) of contingent capacity and 
associated firm energy to new allottees within the State of California, 
and 69,170 kW of contingent capacity and associated firm energy to new 
allottees within the Boulder City Area (BCA) marketing area as defined 
in the 2012 Conformed Criteria.
    On October 30, 2012, Western published proposed marketing criteria 
to be used in the allocation of the Post-2017 Resource Pool. Public 
information and comment forums were held in Las Vegas, Nevada; Tempe, 
Arizona; and Ontario, California. Western received comments from 
existing power contractors, Native American tribes, cooperatives, 
municipalities, and other potential contractors. Transcripts of the 
public comment forums, as well as comments received, may be viewed on 
Western's Web site at http://www.wapa.gov/dsw/pwrmkt.

Response to Comments on the Post-2017 Resource Pool Marketing Criteria

    Western received numerous comments on its proposed Post-2017 
marketing criteria during the comment period. Western reviewed and 
considered all comments received. This section summarizes and responds 
to the comments received on the proposed Post-2017 Resource Pool 
marketing criteria.

Ready, Willing, and Able

    Comment: Western should provide time flexibility for those seeking 
transmission arrangements to meet potential ready, willing, and able 
provisions.
    Response: Western intends to work with potential allottees to the 
extent feasible to ensure sufficient transmission arrangements are in 
place by October 1, 2016. However, it is the allottees' ultimate 
responsibility to meet the ready, willing, and able provisions.
    Comment: Western should accept a Memorandum of Agreement (MOA) or 
similar documentation between an applicant and a transmission 
distribution provider as evidence the applicant has met the ready, 
willing, and able requirements. Requiring applicants to develop and 
execute contractual agreements prior to notification of an allocation 
could create an unnecessary political and procedural hardship for some 
applicants.
    Response: Applicants will need to demonstrate satisfactory 
arrangements to meet ready, willing, and able requirements by October 
1, 2016. Final allocation determinations are anticipated to be 
established well in advance of this date. Therefore, applicants should 
have adequate time to develop and execute any necessary contractual 
arrangements. Western may accept an MOA or similar documentation 
between an applicant and a transmission and/or distribution provider if 
it establishes a legally-binding right of the applicant to receive the 
required services.

[[Page 79437]]

    Comment: Request all applicants, including Native American tribes, 
be required to meet the same criteria such as the ready, willing, and 
able requirement.
    Response: Western finds that certain exceptions for Native American 
tribes, such as the ready, willing, and able requirement, are 
consistent with DOE's American Indian and Alaska Native Tribal 
Government Policy (Tribal Policy), available at http://energy.gov/em/downloads/doe-american-indian-and-alaska-natives-tribal-government-policy, and recognizes the special and unique relationship between the 
United States and tribal governments. Western will work cooperatively 
with all applicants, but has found that additional flexibility in 
interacting with tribal applicants is important to ensure the 
successful implementation of tribal allocations.

Priority Consideration

    Comment: The HPAA identifies certain classes of applicants that may 
ultimately qualify for allocations; it does not identify any mandatory 
criteria for Western to utilize in prioritizing those allocations. At 
some point, Western must make such decisions. Western's proposed 
prioritization is reasonable to determine fair and equitable 
allocations.
    Response: Western agrees with this comment. Western has the need 
and the authority to prescribe marketing criteria consistent with 
historical BCP legislation in order to evaluate applications in the 
allocation of the Post-2017 Resource Pool.
    Comment: Western proposes a prioritization of preference-eligible 
entities in making new allocations. What is Western's statutory 
authority for making this prioritization? How did Western determine the 
ranking among preference-eligible entities as proposed?
    Response: Section 5 of the BCPA and Section 302 of the DOE Act as 
well as HPAA authorize Western to establish and apply regulations 
governing BCP allocations, including the formation of project-specific 
marketing criteria as proposed. Western's proposed marketing criteria 
were established to promote widespread use, be consistent with DOE's 
Tribal Policy, and respond to the public interest in a finite resource. 
Western concludes that providing an initial consideration for Native 
American tribes is appropriate based on comments received, and because 
tribes are specifically identified by the HPAA as eligible allottees 
and have not previously received allocations of Hoover power. The 
remaining eligible entities were prioritized to promote widespread use 
principles in a manner that supports the public interest. However, 
after considering comments received, Western has decided not to 
differentiate among the non-tribal, non-profit eligible entities in the 
final marketing criteria.
    Comment: Reclamation Law and its particular priorities do not apply 
to the Hoover power allocation process. The BCPA establishes specific 
power allocation and customer priorities, and these statutory 
requirements govern the Hoover allocation process.
    Response: Neither the HPAA nor the BCPA provide for a specific 
method for determining allocations of BCP power to new entities 
described in Section 5. Section 5 of the BCPA specifically authorizes 
the Secretary ``under such general regulations as he may prescribe'' to 
contract for the sale of Hoover power and to resolve conflicting 
applications for the power ``with due regard to the public interest.'' 
Western's public process provides a transparent means of exercising 
this authority in making final allocations when potential demand is 
very likely to exceed the available resource to be marketed.
    Comment: Section 5 of the BCPA governs the allocation of power from 
Hoover Dam. Section 5(c) of the BCPA gave the three States of Arizona, 
California, and Nevada the first right, or a super-preference over all 
other Section 5 applicants, to apply for, obtain and share among 
themselves in the power generated at the dam. The states' application 
takes precedence over any other applicant.
    Response: Section 5 of the BCPA cannot be applied in isolation in 
allocating Schedule D power. Under the HPAA substantial portions of BCP 
power, including portions of Schedule D, have been allocated to 
entities in Arizona, California, and Nevada, including the Arizona 
Power Authority and the Colorado River Commission of Nevada as the 
agencies specified by State law as the agents for their respective 
states to purchase power from the Boulder Canyon Project. Section 2(d) 
of the HPAA provides that the remaining Schedule D power must be 
allocated by Western to entities not receiving Hoover power under 
Schedules A and B (``new allottees''). Western concludes that 
allocating additional Schedule D power to the states would not be 
consistent with this provision of the HPAA. Furthermore, HPAA's 
direction to Western to allocate 33 percent of Schedule D equally to 
the States of Arizona, California, and Nevada with the remainder to be 
allocated within the marketing area to new allottees indicates a 
congressional intent for Western to adhere to its historical practice 
of allocating the remaining portions of Schedule D based on the load or 
need of the applicants. The House Report for the HPAA (H.R. Rep. No. 
112-159) also states that Western is expected to determine allocations 
by an assessment of the applicants power needs and act in objective 
manner consistent with Federal preference standards.
    Comment: Absent direction from Congress, Western may not 
selectively implement elements of the BCPA Section 5 to the 
disadvantage of the ``States,'' i.e., Arizona, California, and Nevada.
    Response: Western is not selectively implementing Section 5 of the 
BCPA to the disadvantage of the states. Section 5 grants the Secretary 
broad discretion to allocate power in accordance with the public 
interest and does not require that all BCP power be allocated to the 
states.
    Comment: The HPAA did not authorize Western to take actions that 
would result in the State of Nevada receiving less resource from the 
pool than it contributed to the pool. Western's allocation of the 
69,170 kW of Schedule D to be marketed within the prescribed marketing 
area should be made in the same proportion as the states' respective 
contributions to the resource pool.
    Response: The HPAA does not require Western to allocate the 
remaining portions of Schedule D on a state-by-state basis, and instead 
requires Western to allocate Schedule D to new allottees within the 
entire marketing area. Section 5 of the BCPA specifically grants the 
Secretary broad discretion to allocate power in accordance with the 
public interest. Western concludes that allocating Schedule D among 
eligible applicants based on their proportionate peak load serves the 
public interest while allocating based on the states' proportionate 
contributions to the resource pool does not.
    Comment: Western's allocations of Hoover resources are governed by 
the HPAA and the BCPA and are not subject to the Preference Law concept 
in the 1939 Reclamation Act, so Western may not lawfully designate 
Rural Electric Cooperatives (Cooperatives) as potential new allottees 
in its allocation process; particularly when Congress was asked to 
include Cooperatives in Western's 69,170 kW allocation process under 
the HPAA, and declined to do so.
    Response: Western's inclusion of Cooperatives among eligible 
entities is not based on the Reclamation Project Act of 1939, but 
rather on the language of the BCPA and the HPAA. In Section 5 of the 
BCPA, Congress identified ``private corporations'' as eligible

[[Page 79438]]

entities, together with states, municipal corporations, and political 
subdivisions (43 U.S.C. 617d). Further, Section 2(d)(2)(C)(i)(I) of the 
HPAA expressly provides (in relevant part) that Schedule D may be 
allocated to entities ``eligible to enter into contracts under Section 
5 of the Boulder Canyon Project Act. . . .'' Therefore, under both 
statutes, Cooperatives as private corporations are eligible to receive 
allocations under Schedule D.
    Beyond the language of the statutes, Western finds additional 
support for its interpretation in House Report 112-159, which 
specifically lists Cooperatives among entities eligible to receive 
allocations from the new proposed Schedule D.
    Comment: The legislative history supporting the HPAA reflects the 
intent of Congress to ensure that Cooperatives are provided access to 
the power made available under Schedule D. However, that intent is not 
brought forth in the proposed marketing criteria, which state that 
Western will consider an allocation for a Cooperative after considering 
an allocation for federally recognized Native American tribes, 
municipal corporations, political subdivisions, irrigation or other 
districts, and other governmental organizations that have electric 
utility status. Western should ensure fair and equitable access to 
Cooperatives of Schedule D power.
    Response: After considering comments and analyzing various options, 
Western has established marketing criteria that provide a first 
consideration to tribes and then treats all Section 5 non-profit 
entities equally. This results in an aggregation of all Section 5 
eligible entities that are non-profit in nature, including 
Cooperatives. The first consideration to tribes is not intended to 
establish a tribal-only pool or to meet all tribal needs prior to other 
eligible applicants. Therefore, Western anticipates the criteria will 
provide opportunities to Cooperatives seeking Schedule D power.
    Comment: Providing priority to Native American tribes, municipal 
corporations, and political subdivisions ahead of Cooperatives is an 
unprecedented departure in the treatment of traditional preference 
entities and is not consistent with the Congressional intent of HPAA. 
Western should consider applications of tribes on par with the 
applications of traditional preference entities such as Cooperatives 
and municipally-owned utilities.
    Response: Western's marketing criteria are intended to promote 
widespread use, be consistent with DOE Tribal Policy, and respond to 
the public interest in a finite resource. Western has determined that 
providing an initial priority consideration for Native American tribes 
is appropriate based on comments received, and because tribes are 
specifically identified by the HPAA as eligible allottees and have not 
previously received an allocation of Hoover power. This first 
consideration for tribes is not intended to establish a tribal-only 
pool or to meet all tribal needs prior to other eligible applicants. 
Western anticipates the criteria will provide opportunity to 
Cooperatives, municipally-owned utilities, and political subdivisions 
seeking Schedule D power.
    Comment: Clarity should be made in priority number 2 such that a 
municipal corporation or political subdivision that receives power and/
or support from a Cooperative should retain a second priority and not 
be demoted to a third priority.
    Response: Based upon comments received, the proposed priority 
criteria were modified to consider Cooperatives equally with other non-
profit Section 5 entities. The final criteria do not distinguish 
between a municipal corporation or political subdivision that receives 
services from a Cooperative and the Cooperative itself.
    Comment: The 2011 amendments to Section 5 of the BCPA gave 
federally recognized Indian tribes a preference on an equal basis with 
other Section 5 applicants.
    Response: The HPAA establishes Native American tribes as eligible 
entities to receive power from the BCP. The HPAA does not prescribe a 
priority, preference, or direction related to Western's consideration 
of eligible applicants.
    Comment: Comments were received that support a first priority to 
tribes. Priority to tribes will help redress the historic lack of 
tribal access to project benefits and is consistent with the HPAA, 
Western's trust responsibility to tribes, Western's precedent in other 
marketing efforts, Western's administrative discretion as provided in 
Reclamation Law, underlying Congressional intent, and HPAA's directive 
that Western fairly and equitably determines allocations from the new 
power pool.
    Response: Western finds merit in the retention of a tribal 
priority. Western has consistently provided increased opportunities for 
Native American tribes. Such consideration has been extended to tribes 
as Western seeks to promote Federal tribal initiatives as described in 
Title 5 of the Energy Policy Act of 2005 and DOE's Tribal Policy. The 
first consideration for tribes does not constitute a tribal-only pool 
or mean that all tribal needs will be met prior to other eligible 
applicants.
    Comment: Allocations should meet the peak tribal demand requirement 
before allocations are made to the next priority.
    Response: Western finds merit in the retention of a first 
consideration for tribes. However, it is anticipated that the demand 
for Schedule D power will far exceed what is available, and Western is 
not prescribing a tribal-only pool. Allocating the Post-2017 Resource 
Pool to fully meet peak tribal demands prior to making allocations to 
Section 5 entities would likely hinder Western's ability to allocate 
Schedule D power to non-tribal entities and would restrict the 
promotion of widespread use to a diverse base of customers.
    Comment: Priority for Native American tribes should be capped at a 
maximum of 50 percent of new power allocations available to all states 
combined to all or any Native American tribes.
    Response: After considering comments and analyzing various options, 
Western has established marketing criteria providing tribes first 
consideration for an allocation of up to 25 percent of their peak load, 
considering all Federal power allocations and a 3,000 kW maximum 
allocation for any applicant. These criteria seek to establish 
meaningful tribal allocations while also preserving a reasonable 
portion of Schedule D for new entities eligible under Section 5 to 
promote widespread use to a diverse base of customers.
    Comment: Congress did not intend for the federally recognized 
tribes to have exclusive rights to the Schedule D power, and the 
priority criteria will operate as such if there are sufficient 
applications for allocations.
    Response: Western's marketing criteria does not establish a tribal-
only pool; the first consideration given to tribes will extend up to 25 
percent of their peak loads, considering all Federal power allocations 
and the 3,000 kW maximum allocation for any applicant. These criteria 
seek to establish meaningful tribal allocations while also preserving a 
reasonable portion of Schedule D power for new entities eligible under 
Section 5 to promote widespread use to a diverse base of customers.
    Comment: There should be no priority among all BCPA Section 5 
entities and federally recognized Native American tribes. Allocations 
should be based on other marketing criteria elements, such as the 
actual load or energy demand of each applicant, whether the applicant

[[Page 79439]]

already receives the benefits of a Federal power resource, and the 
applicant's ability to take delivery of the energy to meet their load.
    Response: After considering comments and analyzing various options, 
Western has retained a first consideration for tribes, but modified the 
marketing criteria to aggregate all Section 5 eligible entities that 
are non-profit in nature for allocations after meeting up to 25 percent 
of tribal peak load when considering all Federal allocations.
    Comment: Public water agencies should have an equal opportunity to 
obtain Federal energy resources that are reserved for the public 
benefit. The provision of public utility service is of equal benefit to 
the public, whether the utility is water or electric service.
    Response: After considering comments and analyzing various options, 
Western has established marketing criteria that aggregates all Section 
5 eligible entities that are non-profit in nature. Therefore, water and 
electric utilities will be treated equally.
    Comment: Absent direction from Congress, Western may not impose an 
``electric utility status'' priority or requirement on potential 
allottees, particularly when Congress declined to adopt a proposed 
amendment to the HPAA seeking preference for full-service public power 
providers. Giving priority to entities having electric utility status 
would eliminate or at least prejudice the status of all otherwise 
eligible applicants who are customers of electric utilities. The 
marketing criteria should include municipal corporations and political 
subdivisions including irrigation or other districts, municipalities 
and other governmental organization without electric utility status. 
Western should eliminate the priority for having electric utility 
status.
    Response: After considering comments and analyzing various options, 
Western has determined there is no need to retain the provisions 
regarding electrical utility status for establishing allocations.
    Comment: Comments were received that support Western's continued 
adherence to its historic policy of allocating Hoover power to new 
tribal customers without regard to their ``electric utility status.'' 
This supports broad inclusion of new tribal customers, and nothing in 
the legislation or legislative record contradicts Western's adherence 
to this practice with respect to the Hoover allocation.
    Response: After considering comments and analyzing various priority 
options, Western has not retained an electrical utility status priority 
or requirement for applicants.
    Comment: There is no statutory requirement linking eligibility to 
an entity having electric utility responsibility, nor ownership of 
electric distribution facilities. Support the inclusion of public 
utilities other than electric utilities as it is essential to meet the 
``widest use'' statutory requirements and public policy objectives.
    Response: After considering comments and analyzing various priority 
options, Western has not retained an electrical utility status priority 
or requirement for applicants.
    Comment: The proposed criteria properly give priority to municipal 
utilities and irrigation districts. Such entities should receive 
priority in the Post-2017 remarketing.
    Response: After considering comments and analyzing various options, 
Western has established marketing criteria that aggregates all Section 
5 eligible entities that are non-profit in nature for allocations after 
meeting 25 percent of tribal peak load when considering all Federal 
allocations.
    Comment: The HPAA provides for Schedule D for ``entities not 
receiving contingent capacity and firm energy under subparagraphs (A) 
and (B). . . .'' Western's proposed marketing criteria do not include 
that criterion. The marketing criteria must adhere to statutory 
directives in the allocation of the Post 2017 Resource Pool.
    Response: Part VI Section D of the 2012 Conformed Criteria states 
in part that ``Western shall offer Schedule D contingent capacity and 
firm energy to entities not receiving contingent capacity and firm 
energy under Section A (Schedule A) or Section B (Section B) (referred 
to herein as ``New Allottees'') for delivery commencing October 1, 
2017.'' Therefore Western's marketing criteria does adhere to 
applicable statutory directives. Based on comments received, Western 
has further clarified in the final marketing criteria that entities 
receiving Schedule A or Schedule B contingent capacity and firm energy 
from APA or CRC will not be eligible for an allocation as a new 
allottee.
    Comment: If there is insufficient power available for interested 
and eligible entities within a subgroup, Western should give priority 
to applicants within each tier that would use the resource to advance 
environmental objectives.
    Response: After considering this comment, Western has determined 
not to adopt the suggested priority for applicants that would advance 
environmental objectives. Such a priority is not addressed in either 
the BCPA or HPAA, and Western is not aware of applicable criteria to 
determine which uses would advance environmental objectives.
    Comment: Western should avoid allocation to only the first priority 
tier in order to promote widespread use to a diverse base of customers. 
Western should reserve portions of power for subsequent tiers to meet 
demands of more than just the first priority tier.
    Response: Western agrees with this comment. Although final 
allocations are dependent upon the applications received, Western does 
not anticipate allocating the entire Schedule D resource pool to a 
single category. In response to comments of this nature, Western has 
established a 3,000 kW maximum allocation. The 3,000 kW maximum 
allocation will be applied to all entities receiving an allocation of 
Schedule D. The final marketing criteria seek to establish meaningful 
tribal allocations and preserve a reasonable portion of Schedule D 
power for new entities eligible under Section 5 to promote widespread 
use to a diverse base of customers.
    Comment: Would there be any power reserved for each priority group?
    Response: Final allocations are dependent upon the applications 
received. However, Western anticipates allocating power to both tribal 
entities and entities eligible under Section 5 of the BCPA. In response 
to comments of this nature, Western has established a 3,000 kW maximum 
allocation. The maximum allocation criterion will help promote 
widespread use to a diverse base of customers.
    Comment: With regard to municipal water utilities, what is meant by 
the independently governed standard?
    Response: After considering comments, Western has eliminated this 
requirement.
    Comment: If allocating to an aggregated entity, is its priority 
established by the nature of its members, or its own nature?
    Response: Eligibility and priority will be determined based upon 
the nature of the applying entity. All members of an aggregated entity 
must be themselves defined as an eligible entity.

Consideration of Existing Federal Power Resource Allocations:

    Comment: In this Hoover allocation effort, Western should impose a 
maximum of five percent reduction on new tribal customers receiving the 
benefit of other Federal hydropower resources.

[[Page 79440]]

    Response: Under Western's marketing criteria, first consideration 
will be given to tribes for up to 25 percent of their peak loads 
considering all Federal power allocations. Western finds merit in 
considering the direct or indirect benefits of all Federal power 
allocations of all applicants, without limitation, to ensure Federal 
power is spread widely and equitably among eligible entities.
    Comment: In order to advance the ``widest use'' public policy 
objective, Western should deem entities currently receiving any Western 
allocation, not just BCP resources, to be ineligible for Schedule D 
resources.
    Response: Western will not deem entities to be ineligible based 
solely upon existing Western allocations from other projects; however, 
all existing Western allocations will be considered in the allocation 
process to advance widespread use principles.
    Comment: While it is understood that Western has not proposed to 
exclude or reprioritize tribes that currently have an allocation of 
Federal power, tribes should not be blocked from receiving an 
allocation, by disqualification or reprioritization, on the basis of a 
prior Federal resource allocation.
    Response: Western will not prevent a tribe from receiving an 
allocation solely because it currently receives an allocation from 
another Western project. First consideration will be given to tribes to 
receive up to 25 percent of their peak loads considering all Federal 
power allocations.
    Comment: Preference should be given first to tribes, regardless of 
receiving any other Federal hydropower allocation, and then to non-
tribal entities, if there is any Hoover power left.
    Response: Western's marketing criteria does provide first 
consideration to tribes for up to 25 percent of their peak loads 
considering all Federal power allocations. Western finds merit in 
providing opportunity for non-tribal applicants and that it is 
consistent with the intent of the HPAA. Western anticipates the 
marketing criteria will promote Federal tribal initiatives and provide 
opportunity for non-tribal applicants.
    Comment: Western should consider other Federal power allocations as 
well as the availability of other lower cost power to the applicants. 
Greater consideration should be given in instances where Hoover power 
is the only lower cost power available to the applicant. First priority 
should be provided to eligible entities that currently do not have a 
contract with Western for Federal power resources or are not a member 
of a parent entity that has a contract with Western for Federal power.
    Response: Western will consider any other Federal power allocations 
the applicants receive, either directly from Western or indirectly 
through a parent or host entity, when making allocation determinations, 
but will not consider the price of power as prices change over time and 
there are a number of variables that may be influencing such prices.

Load Data and Application Assistance

    Comment: Technical assistance provided by Western in the 
preparation of an application for Hoover power should be made available 
equally to any eligible applicant.
    Response: Western agrees with this comment and will endeavor to 
assist all those in need of technical assistance.
    Comment: Western should seek representative load data from 
applicants when available and allow applicants to supplement such load 
data with other information, including aggregated load data, to support 
any request for an allocation as well as estimating loads where 
historical information is not available. Recommend Western consider new 
or future loads in establishing allocations.
    Response: Western will base allocations to eligible applicants on 
actual loads experienced in one of the last three calendar years, i.e., 
calendar years 2011, 2012, or 2013, as designated by the applicant. For 
Native American tribes, Western may use estimated load values if actual 
load data is not available. An applicant will be able to submit other 
information it deems pertinent to receiving an allocation. Such 
information will be considered at Western's discretion. Consideration 
of future loads would introduce speculation and unquantifiable 
collective risk across all applicants and will not be the foundation of 
establishing allocations.
    Comment: Suggest Western consider allowing applicants to provide a 
broader range of load history than just one year at their election. 
Western should allow consideration of the historical load experienced 
by an eligible applicant over the previous three year period if an 
applicant can demonstrate significant load/demand variance and can 
explain the basis for the variance.
    Response: Western will base allocations to eligible applicants on 
actual loads experienced in one of the last three calendar years, i.e., 
calendar years 2011, 2012, or 2013, as designated by the applicant. For 
Native American tribes, Western may use estimated load values if actual 
load data is not available. Western anticipates that this will provide 
additional flexibility than the proposed most recent calendar year and 
will maintain a comparable and manageable basis for allocations.

Minimum Allocation and Aggregation

    Comment: Western should not allocate Hoover power that has access 
to the dynamic signal in such small increments as to be non-cost-
effective.
    Response: Under the HPAA and the 2012 Conformed Criteria, all BCP 
Contractors are entitled access to the dynamic signal regardless of the 
size of their allocation. While allocations may be made as small as 100 
kW, Western's anticipates the establishment of operational protocols to 
enable Western and the contractors to meet industry scheduling 
parameters such as scheduling in whole megawatt (MW) values. These 
operational protocols may assist in the cost effectiveness of managing 
small allocations.
    Comment: Western has stated that the administrative costs 
associated with dealing with small allocations will be subsumed into 
general administrative costs and spread over the entire allocation 
base. Why would other allottees be required to subsidize a cost that 
can be allocated directly to a particular allottee? Is this subsidy 
going to reach across all Hoover contractors?
    Response: Western's costs for the administration of power 
allocations are tracked and accounted for each Federal project at the 
functional activity level (scheduling, dispatching, marketing, etc.,) 
rather than for each contractor. This is true of all Federal projects 
administered by Western, including the BCP. These costs are aggregated 
and included in the Federal project's revenue requirement. Each 
contractor pays its proportionate share of the revenue requirement on a 
per unit cost basis. This accounting treatment conforms to generally 
accepted accounting principles and is consistent with Federal Energy 
Regulatory Commission (FERC) regulations, FERC's prescribed uniform 
system of accounts for electric utilities, and DOE's accounting 
practices. Western concludes this is an acceptable means of cost 
recovery across customers of variable allocations sizes.
    Comment: Western can appropriately address its allocation rounding 
concerns solely through operational protocols.
    Response: Western agrees with this comment and, therefore, has 
lowered the minimum allocation threshold for the BCP from 1,000 kW to 
100 kW. Western anticipates establishing operational protocols in the 
contracting process to minimize rounding and other

[[Page 79441]]

issues associated with the delivery of small allocations.
    Comment: The commenter supported the ability of applicants to 
aggregate loads to meet minimum allocation requirements.
    Response: Western's proposed marketing criteria included minimum 
allocations of 1,000 kW; Western also proposed allowing applicants to 
aggregate their loads to meet this requirement. After considering 
comments, Western is adopting a minimum allocation of 100 kW for each 
applicant, which may include an aggregated entity. However, note that 
scheduling protocols require a 1 megawatt (MW) minimum; therefore, 
smaller entities will likely need to formulate aggregation arrangements 
to facilitate deliveries. The adoption of a much lower minimum 
allocation is anticipated to eliminate the need for aggregation for 
allocation purposes.
    Comment: Support for the establishment of allocation criteria that 
provides tribes with maximum flexibility to access Schedule D power. 
Western should ensure that the implementation of an aggregation 
mechanism does not result in a loss of Schedule D power to new entities 
due to a given allottee's inability to meet Western's aggregation 
standards. Western must implement the tribal priority to ensure that 
allocations to willing and eligible Schedule D allottees are satisfied 
to the maximum extent feasible prior to the returning any Schedule D 
power to Schedule A and B contractors.
    Response: After considering comments, Western is adopting a minimum 
allocation of 100 kW for each applicant, which may include an 
aggregated entity. Therefore, perceived risk associated with 
aggregation to receive an allocation has been minimized. Western agrees 
that efforts should be made to distribute Schedule D power to new 
allottees. Therefore, Western has established marketing criteria 
element ``M'', which results in allocated Schedule D resource that is 
not put under contract by October 1, 2016, to be redistributed to other 
new allottees that have been allocated and contracted for Schedule D 
with Western. This criterion is anticipated to ensure all of the 
Schedule D resource that Western allocates will be retained by new 
allottees.
    Comment: Comments were received that oppose any minimum allocation. 
Western has not demonstrated sufficient justification to require the 
proposed minimum 1,000 kW allocation criteria or to require new 
customers to enter into an ``aggregation arrangement'' in order to 
satisfy the requirement. Western has offered no justification for the 
minimum allocation criteria other than for its own convenience, which, 
by itself, is not a justification. This requirement penalizes the 
smallest scale new customers, a group consisting overwhelmingly of 
small tribes in the service area. Western should proceed without of a 
minimum allocation requirement.
    Response: After considering comments, Western is adopting a minimum 
allocation of 100 kW for each applicant, which may include an 
aggregated entity. The 100 kW minimum has been established to assist 
Western in adhering to sound business principles when establishing 
allocations. An allocation of less than 100 kW is of such a small 
magnitude it has historically not yielded meaningful value to the 
allottee. In times in which a benefit or bill crediting arrangement has 
been sought, allocations of less than 100 kW have experienced 
significant difficulty in acquiring a benefit or bill crediting partner 
willing to engage in transactions for this quantity of power. This 100 
kW minimum allocation threshold has been successfully applied in other 
Western marketing efforts and Western finds merit in establishing it 
for this allocation process.
    Comment: Linking individual allocations with some type of 
allocation share penalty due to scale is unprecedented and without 
justification. Western regularly manages the Hoover and other 
hydropower resources in less than full megawatt quantities. Therefore, 
given the total number of potential new tribal Hoover customers, 
Western's approach of only whole megawatt allocations would be 
prejudicial and would only penalize tribes.
    Response: Western has historically established minimum allocation 
and/or load thresholds to maintain sound business principles. After 
considering comments, Western has eliminated a 1,000 kW minimum 
allocation and is instead adopting a minimum allocation of 100 kW. This 
significant reduction in the minimum allocation provides opportunity 
for small applicants while also establishing a practical threshold to 
ensure the allocation has sufficient value to warrant its 
implementation. However, note that scheduling protocols require a 1 MW 
minimum; therefore, smaller entities will likely need to formulate 
aggregation arrangements to facilitate deliveries.
    Comment: Further clarification is needed for an applicant seeking 
an allocation of less than 1,000 kW. When would communication of how 
scheduling arrangements will work be expected? Since all non-tribal 
Arizona allocations will be going through the APA, would those 
arrangements be sufficient to meet any load aggregation requirements?
    Response: After considering comments, Western has eliminated a 
1,000 kW minimum allocation and is instead adopting a minimum 
allocation of 100 kW for each applicant, which may include an 
aggregated entity. Communications concerning scheduling arrangements 
and other operational related issues will occur during the contracting 
process. Allocations to non-tribal Arizona applicants offered through 
the APA will not be considered an aggregation arrangement. Applicants 
seeking less than 100 kW must meet the load aggregation requirements in 
some other manner.
    Comment: The aggregation concept is vague as defined. Western 
should utilize the aggregation concept consistent with its historic 
allowance for aggregation on a voluntary basis in arranging for 
allocation scheduling and/or delivery. Allocating less than whole 
megawatts to tribes will not end up creating scheduling and operational 
problems for Western. Due to the limited number of tribal utilities, 
the vast majority of tribes would need to enter into some type of 
benefit crediting arrangement. This would achieve Western's expressed 
goal of aggregating the less than whole megawatt allocations.
    Response: Western's proposed marketing criteria included minimum 
allocations of 1,000 kW and allowed applicants to aggregate their loads 
to meet this requirement. After considering comments, Western is 
instead adopting a minimum allocation of 100 kW for each applicant, 
which may include an aggregated entity. Western anticipates 
establishing operational protocols in the contracting process to 
minimize issues associated with the delivery of small allocations.
    Comment: Western should accept a MOA or similar document between 
members of an aggregated group as demonstration of the group's 
intention and ability to apply for an aggregate load.
    Response: To be considered for an allocation, the aggregated group, 
as the applicant, must be an eligible entity as defined by the HPAA and 
the 2012 Conformed Criteria, and must provide sufficient documentation 
demonstrating this eligibility. All members of an aggregated entity 
must be themselves defined as an eligible entity. Western may accept 
the use of a MOA or similar documentation between members of an 
aggregated group as demonstration of

[[Page 79442]]

the group's intention and ability to apply for an aggregate load if it 
establishes a legitimate, legally-binding aggregation of the members as 
determined by Western.
    Comment: Western should address the authority for allottees to join 
together and the nature of their ability to do so in terms of the type 
of entity that would have to be utilized. Where do these envisioned 
entities classify under Section 5 of the BCPA eligibility definition?
    Response: In order to be eligible for an allocation, the entity 
submitting the application must either be a Native American tribe or a 
Section 5 entity. The determination of whether the applicant meets 
these requirements will be made on a case-by-case basis.

Economic Benefit to Tribes

    Comment: The HPAA makes specific reference to the Secretary of 
Energy obligation to offer capacity and energy under Schedule D. While 
Western may desire flexibility to provide an equivalent benefit as set 
forth in subsection L, the statutory language of the HPAA limits the 
Secretary to providing contingent capacity and firm energy.
    Response: The HPAA requires that Western allocate the contingent 
capacity and firm energy to eligible entities by December 2014, and 
place it under contract by October 1, 2017. It does not prohibit 
Western from including provisions in the contracts to provide the 
economic benefits to allottees should issues with the delivery of the 
service occur. It is anticipated that economic benefits would be 
achieved through arrangements with third-party benefit-crediting or 
bill-crediting partners.
    Comment: Western should clarify what is meant by ``unanticipated 
obstacles'' and ``economic benefit'' as these terms are used in these 
proposed criterion. This criterion should either be eliminated or 
applied to all eligible applicants equally.
    Response: The phrase ``unanticipated obstacles'' refers to 
unexpected barriers to delivery of the electric service. In such 
instance, Western will follow its historic practice of allowing tribes 
to contract with a third-party for benefit or bill-crediting 
arrangements yielding the economic value (economic benefit) of the 
delivered power directly to the tribe. This will only be available to 
tribes.

Additional Marketing Criteria Comments

    Comment: Requirements to execute a contract within six months of 
receiving a contract offer from Western and requirements related to 
transmission or distribution service in place by October 1, 2016 are 
acceptable.
    Response: Western agrees with these comments and has retained this 
requirement.
    Comment: Western's marketing effort schedule should be compressed 
to establish final allocations sooner than the summer of 2014 in order 
to provide tribes more time to reach contractual arrangement for the 
beneficial delivery of Hoover power to their communities.
    Response: Western intends to complete the marketing effort through 
a public process as soon as possible, but anticipates that this will 
occur in the summer of 2014.
    Comment: Western should adopt the plain language of the HPAA 
defining ``new allottees'' as ``entities not receiving contingent 
capacity and firm energy'' under Schedules A and B, and the clear 
intent of Congress to ``further allocate and expand the availability of 
hydroelectric power generated at Hoover Dam.'' Existing customers of 
APA and CRC who have a sub-allocation for Schedules A and B through APA 
or CRC should not be eligible applicants for Schedule D from Western. 
All applicants should only be eligible to receive only one allocation 
of power among all the available Schedule D established via the HPAA.
    Response: The HPAA defines ``new allottees'' as entities not 
receiving contingent capacity and firm energy under Schedule A and 
Schedule B. This definition excludes not only the contractors named in 
those schedules, but also entities receiving sub-allocations of the 
capacity and energy. Therefore, neither the listed contractors nor 
their sub-allottees will be eligible for an allocation from the Post-
2017 Resource Pool. Post-2017 sub-allocations of BCP power made by APA 
or CRC subsequent to Western's allocation process are to be established 
through the respective APA or CRC allocation process.
    Comment: The HPAA indicates that Schedule D is intended to go to 
new allottees, which are entities that are not named in the 
legislation. APA customers are not named in the legislation. APA 
customers have no assurances that anything allocated to APA will come 
their way. APA customers should be treated as potential new allottees 
to avoid potential exclusion. Request further explanation on how 
Western intends to proceed.
    Response: The HPAA defines ``new allottees'' as entities not 
receiving contingent capacity and firm energy under Schedule A and 
Schedule B, and not as entities that are not named in the legislation. 
Therefore, Western will not provide an allocation to any entity 
currently receiving Schedule A or Schedule B power.
    Comment: Western should consider allocation to existing APA 
customers with withdrawal provisions in the event that allottee was to 
be allocated further BCP resource from APA.
    Response: Western has not adopted this proposal. The HPAA requires 
Western to allocate Schedule D power by December 2014 for delivery 
commencing on October 1, 2017. It is currently unclear when APA 
allocations will be made. Western cannot ensure there would be 
sufficient time to make subsequent allocations and contracts for any 
Schedule D power made available after conclusion of the APA process. 
Western concludes that implementation of its allocation process 
contingent upon such external factors is not practical.
    Comment: Western may not, through its administrative processes, 
impose standards, requirements or limitations on potential new 
allottees, that are inconsistent with or not authorized by Federal law 
specific to the BCP.
    Response: Western's marketing criteria are in compliance with 
Federal law specific to the BCP.
    Comment: Western must contract directly with each tribe receiving 
Hoover power. Western has identified no precedent for deviation from 
such a practice and, in fact, Western has never contracted in any 
manner other than directly with its allocation recipients.
    Response: Western intends to contract directly with each tribe 
receiving an allocation.
    Comment: Western should clarify how it will treat customers 
eligible for/receiving Hoover allocations through the States of Nevada 
or Arizona.
    Response: The HPAA states that the Western Schedule D allocations 
in Arizona and Nevada to other than Native American tribes are to be 
offered through APA and CRC, respectively. Therefore, after making any 
allocations to non-tribal entities in those states, Western will 
contractually provide the capacity and energy to APA and/or CRC, which 
will contract directly with the allottee. The contracts between APA 
and/or CRC and the allottee must contain all contract terms required by 
the HPAA, the 2012 Conformed Criteria, and any necessary provisions 
prescribed in Western's contracts with APA and/or CRC.
    Comment: Western should publish in a single document all of its 
criteria and regulations regarding or impacting BCP, including the 
relevant portions of the 1984 marketing criteria as well as the 
material resulting from its actions on the

[[Page 79443]]

June 14, 2012, and October 30, 2012 Federal Register notices.
    Response: Although Western will not combine all that information 
into one hard copy document, those materials are all available for 
review at Western's BCP Web site located at http://www.wapa.gov/dsw/pwrmkt/BCP_Remarketing/BCP_Remarketing.htm.
    Comment: Western's identified procedure to address the allocation 
of Schedule D is vague. Matters not clarified by Western's proposed 
criteria may constitute a new agency action. Western must provide a 
supplemental opportunity to address any new criteria created as part of 
this public comment process prior to making any allocations.
    Response: There are no new criteria contained in this notice. The 
final criteria are all refinements of the proposed criteria developed 
in consideration of the comments Western has received. Therefore, 
Western concludes that it is not necessary to conduct further public 
processes to establish these marketing criteria.
    Comment: Western should explain the formula for determining and 
allocating excess energy in written procedures during the allocation 
process.
    Response: This process concerns only the allocation of Schedule D 
power and not the allocation of Schedule C excess energy under the 
HPAA. Therefore, no explanation or procedures concerning excess energy 
are being provided in this notice.
    Comment: All applicants should only be eligible to receive one 
allocation of BCP power from Western or APA and/or CRC.
    Response: After considering this comment, Western is not 
promulgating additional requirements or regulations to be imposed 
within the APA and/or CRC BCP allocation efforts. Western does not have 
the authority to prescribe requirements upon APA and CRC in their 
processes for marketing BCP power within their respective states. These 
provisions are also not provided for in either the BCPA or the HPAA.
    Comment: Western should clarify in the final marketing criteria 
that the revised marketing criteria for Post-2017 apply solely to the 
allocation of Schedule D resources made available by the HPAA. Support 
a fair, transparent, detailed, and documented written process via the 
public record for the allocation of BCP resources.
    Response: Western agrees with this comment and believes that it has 
appropriately done so. Western is adopting the final marketing criteria 
after considering comments received through its public process.
    Comment: Questions were submitted concerning a potential 
applicant's load location relative to the BCA marketing area and the 
contract terms that will be applicable to the sale of BCP power, such 
as if Hoover power is considered green/renewable, if any purchased 
firming power would be green/renewable, treatment of transactions with 
an Independent System Operator (ISO), ISO scheduling points, and 
provision of referenced documents and related contracts.
    Response: Questions of this nature are outside the scope of the 
marketing criteria proposals. Questions concerning contract terms and 
individual applicants will be addressed later in the marketing process, 
as appropriate.

I. Final Post-2017 Resource Pool Marketing Criteria

    The following general marketing criteria shall be applied to 
applicants seeking an allocation of power from the Post-2017 Resource 
Pool. This includes the 69.17 MW of Schedule D to be allocated within 
the entire marketing area and the additional 11.51 MW of Schedule D to 
be allocated within the State of California.
    A. Allocations of power will be made in amounts determined solely 
by Western in the exercise of its discretion under Reclamation Law, 
including the HPAA.
    B. Allocations will be made only to new allottees, defined in the 
HPAA as entities not receiving Schedule A and Schedule B contingent 
capacity and firm energy. An entity receiving Schedule A or Schedule B 
contingent capacity and firm energy from APA or CRC will not be 
eligible for an allocation as a new allottee.
    C. An allottee may purchase power only upon the execution of an 
electric service contract and satisfaction of all conditions stated 
within that contract.
    D. Eligible applicants, except Native American tribes, must be 
ready, willing, and able to receive and distribute or use power from 
Western. Ready, willing, and able means the eligible applicant has the 
facilities needed for the receipt of power or has made the necessary 
arrangements for transmission and/or distribution service, and its 
power supply contracts with third parties permit the delivery of 
Western's power. Eligible applicants must have the necessary 
arrangements for transmission and/or distribution service in place by 
October 1, 2016.
    E. An eligible Native American applicant must be an Indian tribe as 
defined in the Indian Self Determination Act of 1975, 25 U.S.C. Sec.  
450b, as amended.
    F. Eligible Native American tribes will receive first consideration 
for an allocation of BCP sufficient to provide Federal hydropower up to 
25 percent of their peak load in consideration of criterion element G.
    G. In making allocations, Western will consider the amount of the 
applicant's load already served by existing Federal power resource 
allocations.
    H. Remaining Schedule D shall be allocated to non-profit applicants 
eligible under Section 5 of the BCPA in proportion to their peak loads.
    I. Western will base allocations to all eligible applicants on 
actual loads experienced in one of the last three calendar years 
including calendar years 2011, 2012, or 2013, as designated by the 
applicant. For Native American tribes, Western may use estimated load 
values if actual load data is not available. Western will evaluate and 
may adjust inconsistent estimates during the allocation process. 
Western is available to assist tribes in developing load estimates if 
necessary.
    J. The minimum allocation shall be 100 kW.
    K. The maximum allocation shall be 3,000 kW.
    L. Contractors must execute electric service contracts within six 
months of receiving a contract offer from Western, unless Western 
agrees otherwise in writing.
    M. Any allocated Post-2017 Resource Pool power not under contract 
by October 1, 2016, shall be redistributed on a pro-rata basis to the 
remaining Post-2017 Resource Pool new allottees. In the execution of 
this redistribution, criteria elements F and K may be waived at 
Western's discretion. Any Post-2017 Resource Pool power not allocated 
and under contract by October 1, 2017, shall be distributed in 
accordance with the 2012 Conformed Criteria.
    N. If unanticipated obstacles to the delivery of electric service 
to a Native American tribe arise, Western will allow the economic 
benefit of the resource to be provided to the tribe through benefit-
crediting or bill-crediting arrangements.

II. Applications for Power

    This notice formally requests applications from qualified entities 
seeking to purchase Federal power from the Post-2017 Resource Pool. 
Western is requesting the APD to provide a uniform basis for evaluating 
applications. To be considered, qualified entities must submit an 
application to the Western Area Power Administration Desert Southwest 
Region as requested below. To ensure full consideration for all 
applicants, Western reserves the right to

[[Page 79444]]

not consider applications submitted before publication of this notice 
or after the deadline specified in the DATES section. Application forms 
are available upon request or may be accessed and/or submitted online 
at http://www.wapa.gov/dsw/pwrmkt/BCP_Remarketing/BCP_Remarketing.htm.

Applicant Profile Data Application

    The content and format of the APD are outlined below. Applicants 
must provide all requested information, or the most reasonable 
available estimate, or should indicate ``not applicable'' if they have 
no information to be considered for a requested item. Western is not 
responsible for errors in data or missing pages. All items of 
information in the APD should be answered as if prepared by the entity 
seeking the allocation. The APD includes the following:
    1. Applicant:
    a. Applicant's (entity requesting a new allocation) name and 
address.
    b. Person(s) representing applicant: Please provide the name, 
title, address, telephone and fax number, and email address of such 
person(s).
    c. Type of organization: For example, Federal or state agency, 
irrigation district, municipal, rural, industrial user, municipality, 
Native American tribe, public utility district, or rural electric 
cooperative.
    d. Parent organization of applicant, if any.
    e. Name of members or suballottees, if any.
    f. Applicable law under which the organization was established.
    g. Applicant's geographic service area: If available, submit a map 
of the service area, and indicate the date prepared.
    h. Describe the entity/organization that will interact with Western 
on contract and billing matters.
    i. The amount of power the applicant is requesting to be provided 
by Western.
    2. Loads:
    a. All Applicants:
    i. If applicable, number and type of customers served in one of the 
last three calendar years including calendar years 2011, 2012, or 2013; 
e.g., residential, commercial, industrial, military base, agricultural.
    ii. The actual monthly maximum demand (in kilowatts) and energy use 
(in kilowatt hours) experienced in one of the last three calendar years 
including calendar years 2011, 2012, or 2013.
    iii. For Native American tribe applicants, if actual demand and 
energy data is not available, provide estimated monthly demand (in 
kilowatts) with a description of the method and basis for this 
estimated demand.
    3. Resources:
    a. A list of current power supplies, including the applicant's own 
generation and purchases from others. For each supply, provide the 
amount of capacity received from that power supply and its location.
    b. Status of power supply contract(s), including a contract 
termination date. Indicate whether power supply is on a firm basis or 
some other type of arrangement.
    4. Transmission:
    a. Point(s) of delivery: BCP will be delivered at Mead Substation. 
Applicants may provide preferred point(s) of delivery on Western's 
transmission system or a third party's system and the required service 
voltage. The applicant will ultimately be responsible for acquiring 
transmission to alternate delivery points.
    b. Transmission arrangement: Describe the applicant's transmission 
arrangements necessary to deliver power to the requested points of 
delivery beyond Western's transmission system. Provide a single-line 
drawing of applicant's system, if available.
    c. Provide a brief explanation of the applicant's ability to 
receive and use, or receive and distribute Federal power as of October 
1, 2017.
    5. Other Information: The applicant may provide any other 
information pertinent to receiving an allocation.
    6. Signature: The signature and title of an appropriate official 
who is able to attest to the validity of the APD and who is authorized 
to submit the request for an allocation is required.

Western's Consideration of Applications

    Upon receiving the APD, Western will verify that the applicant 
meets the eligibility criteria contained in the 2012 Conformed Criteria 
and that the application contains all information requested in the APD.
    a. Western may request, in writing, additional information from any 
applicant whose APD is determined to be deficient. The applicant will 
have 15 calendar days from the date on Western's letter of request to 
provide the information.
    b. If Western determines the applicant does not meet the 
eligibility criteria, Western will send a letter explaining why the 
applicant did not qualify.
    c. If the applicant has met the eligibility criteria, Western, 
through the public process, will determine the amount of power, if any, 
to allocate in accordance with the marketing criteria. Western will 
send a draft contract to the applicant that identifies the terms and 
conditions of the offer and the amount of power allocated to the 
applicant.

Regulatory Procedure Requirements

Determination Under Executive Order 12866

    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 is required.

Environmental Compliance

    In accordance with the DOE National Environmental Policy Act 
Implementing Procedures (10 CFR 1021), Western has determined that 
these actions fit within a class of action B4.1 Contracts, policies, 
and marketing and allocation plans for electric power, in Appendix B to 
Subpart D to Part 1021--Categorical Exclusions Applicable to Specific 
Agency Actions.

    Dated: December 17, 2013
Mark A. Gabriel,
Administrator.
[FR Doc. 2013-31214 Filed 12-27-13; 8:45 am]
BILLING CODE 6450-01-P