Rule2024-08984
Mandatory Transmission and Distribution Planning Support Activities
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 29, 2024
Effective
April 29, 2024
Issuing agencies
Energy Department
Abstract
The U.S. Department of Energy (DOE) is publishing an interim final rule that amends the State Energy Program (SEP) regulations to incorporate certain changes made to the DOE-administered formula grant program by the Infrastructure Investment and Jobs Act of 2021. Through this rulemaking, DOE amends SEP's mandatory requirements for state energy conservation plans.
Full Text
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<title>Federal Register, Volume 89 Issue 83 (Monday, April 29, 2024)</title>
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[Federal Register Volume 89, Number 83 (Monday, April 29, 2024)]
[Rules and Regulations]
[Pages 33194-33196]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08984]
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DEPARTMENT OF ENERGY
10 CFR Part 420
RIN 1930-AA01
Mandatory Transmission and Distribution Planning Support
Activities
AGENCY: Office of State and Community Energy Programs, State Energy
Program, Department of Energy.
ACTION: Interim final rule and request for comment.
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SUMMARY: The U.S. Department of Energy (DOE) is publishing an interim
final rule that amends the State Energy Program (SEP) regulations to
incorporate certain changes made to the DOE-administered formula grant
program by the Infrastructure Investment and Jobs Act of 2021. Through
this rulemaking, DOE amends SEP's mandatory requirements for state
energy conservation plans.
DATES: This rule is effective April 29, 2024. Written comments must be
received by May 29, 2024.
FOR FURTHER INFORMATION CONTACT: Ari Gerstman, U.S. Department of
Energy, Office of State and Community Energy Programs, State Energy
Program, SCEP-30, 1000 Independence Avenue SW, Washington, DC 20585-
0121, Telephone: (240) 388-5805, Email: <a href="/cdn-cgi/l/email-protection#1d7c6f74337a786f6e69707c735d756c33797278337a726b"><span class="__cf_email__" data-cfemail="107162793e77756263647d717e5078613e747f753e777f66">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Authority and Background
The U.S. Department of Energy's State Energy Program provides
financial assistance in the form of formula grants to states, U.S.
territories, and the District of Columbia (hereinafter referred to as
states) \1\ for a wide variety of energy efficiency and renewable
energy initiatives authorized under the Energy Policy and Conservation
Act (EPCA) (Pub. L. 94-163), as amended. 42 U.S.C. 6321 et seq. Section
40109(a)(3) of the Infrastructure Investment and Jobs Act (IIJA 2021)
(Pub. L. 117-58) amended Section 362(c) of EPCA, which pertains to the
mandatory features of state energy conservation plans. 42 U.S.C.
6322(c). The submission of such plans is required for a state's
participation in SEP and receipt of a formula grant. This interim final
rule amends SEP regulations in part 420 of title 10 of the Code of
Federal Regulations to incorporate the IIJA 2021 amendments.
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\1\ Per 10 CFR 420.2, ``state'' means a state, the District of
Columbia, Puerto Rico, or any territory or possession of the United
States.
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Section 40109 of IIJA 2021 amended section 362(c) of EPCA to
include a new paragraph (7) that mandates the inclusion of transmission
and distribution planning support activities into states' energy
conservation plans.\2\ 42 U.S.C. 6322(c). With the issuance of this
interim final rule, DOE amends 10 CFR 420.15 to include a new paragraph
(g) to adopt this new statutory requirement. Once in effect, DOE's
regulatory requirement for state energy conservation plans will reflect
the corresponding statutory requirement.
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\2\ The mandatory plan features include ``the mandatory conduct
of activities to support transmission and distribution planning,
including--(A) support for local governments and Indian Tribes; (B)
feasibility studies for transmission line routes and alternatives;
(C) preparation of necessary project design and permits; and (D)
outreach to affected stakeholders.'' 42 U.S.C. 6322(c)(7).
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DOE is also revising the reference to the Energy Policy and
Conservation Act included in the 10 CFR part 420 authority line from
Part D to Part B.
II. Interim Final Rulemaking
DOE is issuing this action as an interim final rule, without prior
notice and opportunity for public comment, for two reasons. First, in
general, the Administrative Procedure Act (APA) requires an agency to
first provide public notice of a proposed rulemaking that is published
in the Federal Register and provide the public an opportunity to
participate in the rulemaking before finalizing the regulatory action.
5 U.S.C. 553(b)-(c). The APA's requirements of notice and public
comment do not apply ``to the extent that there is involved . . . a
matter related to agency . . . grants, benefits, or contracts.'' 5
U.S.C. 553(a)(2), emphasis added. SEP is a program that provides
formula and competitive grants as well as technical assistance to
states to enhance energy security, advance state-led energy
initiatives, and increase energy affordability.
The interim final rule amends SEP's regulations to include the new
mandatory features for state energy conservation plans established by
section 40109(a)(3) of the IIJA 2021. States applying for SEP grants
must submit plans that consider these new features in addition to those
already set out SEP's regulations. 10 CFR 420.15. Because this
rulemaking pertains to DOE's grant program and adopts new mandatory
plan features that states must satisfy in order to receive SEP grant
funds, the APA's requirements for notice and comment do not apply.
Second, this rulemaking regards a nondiscretionary action because
DOE is incorporating the section 40109(a)(3) of IIJA 2021 amendments to
SEP's regulations without substantive change. The language adopted in
regulation mirrors the language of the statute verbatim and DOE is not
amending any other provision of SEP's existing regulations as part of
this rulemaking. DOE is simply adopting a mandatory requirement for
state energy conservation plans as prescribed in statute into SEP's
regulation.
Therefore, because this action concerns a grant program subject to
an APA exception and is nondiscretionary, DOE has determined notice and
comment is not necessary and is pursuing this activity through an
interim final rule.
[[Page 33195]]
III. Procedural Requirements
A. Review Under Executive Orders 12866, 13563, and 14094
This final rule has been determined not to be a ``significant
regulatory action'' under E.O. 12866, Regulatory Planning and Review,
58 FR 51735 (October 4, 1993) as supplemented and reaffirmed by E.O.
13563, ``Improving Regulation and Regulatory Review'', 76 FR 3821 (Jan.
21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory Review'',
88 FR 21879 (April 11, 2023). Accordingly, this rule is not subject to
review under the E.O. by the Office of Information and Regulatory
Affairs (OIRA) within the Office of Management and Budget (OMB).
B. Administrative Procedure Act
As discussed previously, the Administrative Procedure Act (APA), 5
U.S.C. 551 et seq., generally requires public notice and an opportunity
for comment before a rule becomes effective. 5 U.S.C. 553(b)-(c).
However, the APA provides that the requirements of 5 U.S.C. 553 do not
apply ``to the extent that there is involved . . . a matter relating to
agency . . . grants, benefits, or contracts.'' The interim final rule
amends SEP's regulations to include the new mandatory state energy
conservation plan features established by section 40109(a) of the IIJA
2021, which amended SEP's state energy conservation plan requirements.
States applying for SEP grants are required to submit plans that
consider these and the other mandatory features established in statute
and codified in SEP's regulations. Because this rulemaking amends SEP's
regulations at 10 CFR 420.15 to include features states must satisfy in
order to receive a grant from SEP, the APA's general notice and comment
requirements do not apply.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of an initial regulatory flexibility analysis for any rule
that by law must be proposed for public comment. As discussed
previously, DOE has determined that prior notice and opportunity for
public comment is not required under the APA for this rulemaking
because it concerns a grant program. Because a notice of proposed
rulemaking is not required for this action pursuant to 5 U.S.C. 553, or
any other law, no regulatory flexibility analysis has been prepared for
this interim final rule. See 5 U.S.C. 601(2), 603(a).
D. Review Under the Paperwork Reduction Act of 1995
This interim final rule imposes no new information or recordkeeping
requirements. Accordingly, Office of Management and Budget clearance is
not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et
seq.)
E. Review Under the National Environmental Policy Act of 1969
DOE has determined that this interim final rule falls into a class
of actions that are categorically exclude from review under the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et
seq.) and DOE`s implementing regulations at 10 CFR part 1021.
Specifically, DOE has determined that this rulemaking is consistent
with activities identified in 10 CFR part 1021, subpart D, appendix A6,
because it is strictly procedural and meets the requirements for
application of a categorical exclusion. Therefore, DOE has determined
that promulgation of this rule is not a major Federal action
significantly affecting the quality of the human environment within the
meaning of NEPA and does not require an environmental assessment nor an
environmental impact statement.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. The Executive order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. The Executive order
also requires agencies to have an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
On March 14, 2000, DOE published a statement of policy describing the
intergovernmental consultation process it will follow in the
development of such regulations (65 FR 13735). DOE examined this
interim final rule and determined that it does not preempt State law
and does not have a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Accordingly, no further action is required by Executive
Order 13132.
G. 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 (Feb. 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 Executive 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
Executive agencies to review regulations in light of applicable
standards in section 3(a) and section 3(b) to determine whether they
are met or it is unreasonable to meet one or more of them. DOE has
completed the required review and determined that, to the extent
permitted by law, this interim final rule meets the relevant standards
of Executive Order 12988.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4) requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. For a proposed regulatory action likely to result in a
rule that may cause the expenditure by State, local, and Tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any one year (adjusted annually for inflation), section 202
of UMRA requires a Federal agency to publish a written statement that
estimates the resulting costs, benefits, and other effects on the
national economy. (2 U.S.C. 1532(a) and (b).) The UMRA also requires a
Federal agency to develop an effective process to permit timely input
by elected officers of State, local, and Tribal governments on a
proposed ``significant intergovernmental mandate,'' and requires an
agency plan for giving notice
[[Page 33196]]
and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. On March 18, 1997,
DOE published a statement of policy on its process for
intergovernmental consultation under UMRA (62 FR 12820) (also available
at <a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>). This interim final rule
does not contain an intergovernmental mandate or a mandate that may
result in the expenditure of $100 million or more in any year, so these
requirements under the Unfunded Mandates Reform Act do not apply.
I. Review Under the Treasury and General Government Appropriations Act
of 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This interim final rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
J. Review Under Executive Order 12630
Pursuant to E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (March
18, 1988), DOE has determined that this interim final rule would not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
K. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516 note) provides for Federal agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has
reviewed this interim final rule under the OMB and DOE guidelines and
has concluded that it is consistent with applicable policies in those
guidelines.
L. 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 any action by an agency that promulgated or is expected to lead to
promulgation of a final rule, and that: (1) Is a significant regulatory
action under Executive Order 12866, or any successor order; and (2) is
likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (3) 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 interim final rule would not have a significant adverse effect
on the supply, distribution, or use of energy and, therefore, is not a
significant energy action. Accordingly, DOE has not prepared a
Statement of Energy Effects.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
IV. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this interim
final rule.
List of Subjects in 10 CFR Part 420
Energy conservation, Grant programs--energy, Technical assistance.
Signing Authority
This document of the Department of Energy was signed on April 22,
2024, by David Crane, Under Secretary for Infrastructure, pursuant to
delegated authority from the Secretary of Energy. That document with
the original signature and date is maintained by DOE. For
administrative purposes only, and in compliance with requirements of
the Office of the Federal Register, the undersigned DOE Federal
Register Liaison Officer has been authorized to sign and submit the
document in electronic format for publication, as an official document
of the Department of Energy. This administrative process in no way
alters the legal effect of this document upon publication in the
Federal Register.
Signed in Washington, DC, on April 23, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, the Department of Energy
amends part 420 of chapter II, subchapter D of title 10 of the Code of
Federal Regulations as set forth below:
PART 420--STATE ENERGY PROGRAM
0
1. The authority citation for part 420 is revised to read as follows:
Authority: Title III, part B, as amended, of the Energy Policy
and Conservation Act (42 U.S.C. 6321 et seq.); Department of Energy
Organization Act (42 U.S.C. 7101 et seq.)
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2. Amend Sec. 420.15 by revising the section heading and adding a new
paragraph (g) to read as follows:
Sec. 420.15 Annual State applications and amendments to State plans.
* * * * *
(g) The mandatory conduct of activities to support transmission and
distribution planning, including--
(1) Support for local governments and Indian Tribes;
(2) Feasibility studies for transmission line routes and
alternatives;
(3) Preparation of necessary project design and permits; and
(4) Outreach to affected stakeholders.
[FR Doc. 2024-08984 Filed 4-26-24; 8:45 am]
BILLING CODE 6450-01-P
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