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###### Department of Energy

###### Southwestern Power Administration 

# AGENCY:

Southwestern Power Administration, DOE. 

# ACTION:

Notice of Public Review and Comment. 

# SUMMARY:

Section 132 of Public Law 109-103 (2005) authorized and directed the Secretary of the Army to implement alternatives BS-3 and NF-7, as described in the White River Minimum Flows Reallocation Study Report, Arkansas and Missouri, dated July 2004. 

                        The law states that the Administrator, Southwestern Power Administration (Southwestern), shall determine any impacts on electric energy and capacity generated at Federal Energy Regulatory Commission (FERC) Project No. 2221 caused by the storage reallocation at Bull Shoals Lake. Further, the licensee                               ( print page 6718)                            of Project No. 2221 shall be fully compensated by the Corps of Engineers for those impacts on the basis of the present value of the estimated future lifetime replacement costs of the electrical energy and capacity at the time of implementation of the White River Minimum Flows project.                     

The law also states that losses to the Federal hydropower purpose of the Bull Shoals and Norfork Projects shall be offset by a reduction in the costs allocated to the Federal hydropower purpose. Further, such reduction shall be determined by the Administrator of Southwestern on the basis of the present value of the estimated future lifetime replacement cost of the electrical energy and capacity at the time of implementation of the White River Minimum Flows project. 

Assuming a January 1, 2011, date of implementation, Southwestern has made a draft determination that the present value of the estimated future lifetime replacement costs of the electrical energy and capacity at FERC Project No. 2221 is $21,363,700. Southwestern has made a draft determination that the present value of the estimated future lifetime replacement costs of the electrical energy and capacity for Federal hydropower is $41,584,800. 

# DATES:

                        The consultation and comment period will begin on the date of publication of this                         **Federal Register**                         notice and will end March 6, 2008.                     

# FOR FURTHER INFORMATION CONTACT:

                        Mr. George Robbins, Director, Division of Resources and Rates, Southwestern Power Administration, U.S. Department of Energy, One West Third Street, Tulsa, Oklahoma 74103, (918) 595-6680,                         *george.robbins@swpa.gov.*

# SUPPLEMENTARY INFORMATION:

## I. Discussion 

Originally established by Secretarial Order No. 1865 dated August 31, 1943, Southwestern is an agency within the U.S. Department of Energy which was created by an Act of the U.S. Congress, entitled the Department of Energy Organization Act, Pub. L. No. 95-91 (1977). Southwestern markets power from 24 multi-purpose reservoir projects with hydroelectric power facilities constructed and operated by the U.S. Army Corps of Engineers. These projects are located in the states of Arkansas, Missouri, Oklahoma, and Texas. Southwestern's marketing area includes these states plus Kansas and Louisiana. 

Southwestern developed projected energy and capacity losses for the Bull Shoals and Norfork projects and FERC Project No. 2221, including additional losses related to the reallocation for minimum flows as appropriate. Currently, the calculated credit due to Federal hydropower is $41,584,800, and the calculated compensation due to the licensee of FERC Project No. 2221 is $21,363,700. The values were calculated on the basis of the present value of the estimated future lifetime replacement cost of the electrical energy and capacity assuming an implementation date of January 1, 2011, for the White River Minimum Flows project. The final calculation will depend on the official date of implementation as specified by the Corps of Engineers and the value of the specified parameters in effect at that time. 

Section 132 of Public Law 109-103 (2005) authorized alternative BS-3 at Bull Shoals, as described in the White River Minimum Flows Reallocation Study Report, Arkansas and Missouri, dated July 2004. Under the authorized plan for the Bull Shoals project, the storage for minimum flows will be reallocated from the flood control pool with provisions to maintain the current yield of the hydropower storage. The current seasonal pool plan will be superimposed on the new top of conservation pool. The additional downstream releases for minimum flows will be accomplished by generating with one of the main units at a low, inefficient rate. Since the current hydropower yield will be maintained, there will be no loss of marketable capacity or peaking energy at Bull Shoals. The annual energy loss, 23,855 megawatt-hours (MWh) per year of off-peak energy, will be the result of making the required minimum downstream releases by generating energy at a much lower plant efficiency and at a time when the energy is not needed to fulfill Federal peaking energy contracts. Operating a main unit at the lower efficiency will also increase the average maintenance costs at the project by an estimated $68,000 per year. 

Section 132 of Public Law 109-103 (2005) authorized alternative NF-7 at Norfork, as described in the White River Minimum Flows Reallocation Study Report, Arkansas and Missouri, dated July 2004. Under the authorized plan for the Norfork project, one-half of the storage for minimum flows will be reallocated from the flood control pool and the other half from hydropower storage. The reallocation portion from the flood control storage is similar to that at Bull Shoals in that the hydropower storage yield for that portion is maintained and the existing seasonal pool plan will be superimposed on the new top of conservation pool. However, the releases will be spilled through a siphon with no energy generated from the water. Although there is no marketable capacity loss associated with the flood control storage reallocation, there is an off-peak energy loss. The reallocation from the hydropower storage does reduce the yield available to hydropower and will directly impact the marketable capacity and on-peak energy available at Norfork. The annual energy loss at Norfork associated with the reallocation is 6,762 MWh of off-peak energy and 6,762 MWh of on-peak energy, for a total annual energy loss of 13,524 MWh. The marketable capacity loss is 3.93 megawatts (MW). 

FERC Project No. 2221, the non-Federal hydroelectric project at Powersite Dam, will be directly affected by the minimum flow plan. The normal top of conservation pool will be raised five feet at Bull Shoals, the project immediately downstream of Powersite Dam. The pool level increase at Bull Shoals will reduce the amount of gross head (headwater elevation minus the tailwater elevation) available for generation at the non-Federal project at Powersite Dam. The reduction in gross head will result in an annual energy loss of 5,792 MWh of on-peak energy and 2,853 MWh of off-peak energy, or an annual total energy loss of 8,645 MWh. Also associated with the loss of gross head, there will be a capacity loss of 3.00 MW at the project. 

## II. Procedural and Regulatory Review Requirements 

### A. Review Under Executive Order 12866

Southwestern has an exemption from centralized regulatory review under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735, October 4, 1993. Accordingly, this notice of draft determination was not reviewed by OMB under the Executive Order. 

### B. Review Under the Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires Federal agencies to perform a regulatory flexibility analysis if a final rule is likely to have a significant economic impact on a substantial number of small entities and there is a legal requirement to issue a general notice of proposed rulemaking. This draft determination is not a rulemaking. 

### C. Review Under the Paperwork Reduction Act 

                    No new information or record keeping requirements are imposed by this draft determination. Accordingly, no OMB                           ( print page 6719)                        clearance is required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).                 

### D. Review Under the National Environmental Policy Act of 1969 

In compliance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.); the Council on Environmental Quality Regulations for implementing NEPA (40 CFR parts 1500-1508); and DOE NEPA Implementing Procedures and Guidelines (10 CFR part 1021), Southwestern has determined that this draft determination is not addressed under DOE NEPA Implementing Procedures and Guidelines for Power Marketing Administrations, and no further action is required. 

### E. Review Under Executive Order 13132

Executive Order 13132, “Federalism” (64 FR 43255, August 10, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Southwestern is not formulating or implementing policies or regulations that preempt State law or that have federalism implications. Executive Order 13132 does not apply. 

### F. Review Under Executive Order 12988

With respect to the review of existing regulations and the promulgation of new regulations, section 3, (a) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Federal agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Federal agencies to determine whether the regulations meet the applicable standard in section 3(a) and section 3(b), or it is unreasonable to meet one or more of them. Southwestern is not reviewing existing regulations or promulgating new regulations. Executive Order 12988 does not apply. 

### G. Review Under the Unfunded Mandates Reform Act of 1995 

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4 (1995)) requires each Federal agency to assess the effects of a Federal regulatory action on State, local, and tribal governments, and the private sector. Southwestern has determined that the Unfunded Mandates Reform Act of 1995 does not apply to the draft determination. 

### H. Review Under the Treasury and General Government Appropriations Act, 1999 

Section 654 (112 Stat 2681-528) of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277, (1998)) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This draft determination is not a rule. Therefore, Section 654 (112 Stat 2681-528) of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277, (1998)) does not apply. 

### I. Review Under the Treasury and General Government Appropriations Act, 2001. 

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3316 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by the Office of Management and Budget (OMB). OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). Southwestern has reviewed this notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. 

### J. Review Under Executive Order 13211

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as: (1) Any action by an agency that promulgated or is expected to lead to promulgation of a final rule; (2) is a significant regulatory action under Executive Order 12866, or any successor order; and (3) is likely to have significant adverse effect on the supply, distribution, or use of energy, or is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This draft determination is not an energy action. Executive Order 13211 does not apply. 

## III. Public Review and Comment Procedures 

Opportunity is presented for interested parties to receive copies of the Draft Report detailing Southwestern's determination of the Federal and non-Federal hydropower impacts. If you desire a copy of the report, submit your request to Mr. George Robbins, Director, Division of Resources and Rates, Southwestern Power Administration, One West Third, Tulsa, OK 74103, (918) 595-6680. 

Written comments on Southwestern's determination are due on or before March 6, 2008. Comments should be submitted to George Robbins, Director, Division of Resources and Rates, Southwestern, at the above-mentioned address for Southwestern's offices. 

Southwestern will review and address the written comments, making any necessary changes to the draft determination. The Administrator will then submit the final determination to the Corps of Engineers. 

Dated: January 30, 2008. 

Jon Worthington, 

Administrator.

 [FR Doc. E8-2085 Filed 2-4-08; 8:45 am] 

BILLING CODE 6450-01-P