Proposed Rule2025-08569
Renewable Energy Production Incentives
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
May 16, 2025
Issuing agencies
Energy Department
Abstract
The U.S. Department of Energy is proposing to rescind the Renewable Energy Production Incentives program regulations at the end of fiscal year 2026. DOE's proposal is intended to parallel the program's statutory sunset date. The Department seeks comments on any reason to rescind or not rescind these regulations.
Full Text
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<title>Federal Register, Volume 90 Issue 94 (Friday, May 16, 2025)</title>
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[Federal Register Volume 90, Number 94 (Friday, May 16, 2025)]
[Proposed Rules]
[Pages 20939-20942]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-08569]
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DEPARTMENT OF ENERGY
10 CFR Part 451
[EERE-2025-OT-0037]
RIN 1904-AF76
Renewable Energy Production Incentives
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy (DOE).
[[Page 20940]]
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The U.S. Department of Energy is proposing to rescind the
Renewable Energy Production Incentives program regulations at the end
of fiscal year 2026. DOE's proposal is intended to parallel the
program's statutory sunset date. The Department seeks comments on any
reason to rescind or not rescind these regulations.
DATES: Comments must be received on or before June 16, 2025.
ADDRESSES: Interested persons are encouraged to submit comments using
the Federal eRulemaking Portal at <a href="http://www.regulations.gov">www.regulations.gov</a> under docket
number EERE-2025-OT-0037.
FOR FURTHER INFORMATION CONTACT: Mr. David Taggart, U.S. Department of
Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue
SW, Washington, DC 20585-0121. Telephone: (202) 586-5281. Email:
<a href="/cdn-cgi/l/email-protection#51151e1416343f3423303d123e243f22343d1139207f353e347f363e27"><span class="__cf_email__" data-cfemail="a6e2e9e3e1c3c8c3d4c7cae5c9d3c8d5c3cae6ced788c2c9c388c1c9d0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Discussion
II. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13211
L. Review Under Other Executive Orders
III. Approval of the Office of the Secretary
I. General Discussion
In preparation for the approaching sunset date for the Renewable
Energy Production Incentives (REPI) program, the U.S. Department of
Energy (DOE) is proposing to rescind the program's regulations at title
10 of the Code of Federal Regulations (CFR) part 451. DOE seeks
comments on any reason to rescind or not rescind these regulations. The
final rule will be effective at the end of the fiscal year 2026.
Section 1212 of the Energy Policy Act of 1992 (Pub. L. 102-486)
established the REPI program to encourage production of electric energy
from facilities owned by a State, a political subdivision of a State,
or a non-profit electric cooperative using certain renewable energy
resources.\1\ In response, DOE implemented a renewable energy
production incentive program following the statute's requirements
through a final rule in 1995, which established the regulations at 10
CFR 451. That rule contained initial procedures for application,
qualification requirements, procedures for calculation of incentive
payments, and administrative remedies. The rule also included the a
``duration of incentive payments'' provision that codified the
statute's sunset requirement. 60 FR 36959 (July 19, 1995); 42 U.S.C.
13317(f). The REPI program's authorization was later modified through
section 202 of the Energy Policy Act of 2005 (Pub. L. 109-58),\2\ and
DOE issued a final rule incorporating those modifications into 10 CFR
451 in 2006, which extended the period for incentive payments to fiscal
year 2026. 71 FR 46383 (Aug. 14, 2006). More recently, the program's
authorization underwent minor revisions through section 3006(c) of the
Energy Act of 2020 (Pub. L. 116-260). DOE did not undertake a
rulemaking to amend 10 CFR 451 in response to the textual revisions
adopted in 2020 and the fiscal year 2026 sunset remained.
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\1\ Codified at 42 U.S.C. 13317.
\2\ Note, 42 U.S.C. 13317(f), as amended, states that ``[n]o
payment may be made under this section to any facility after
September 30, 2026, and no payment may be made under this section to
any facility after a payment has been made with respect to such
facility for a 10-fiscal year period.''
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Through this proposed rule, DOE is providing stakeholders with
advanced notice of the Department's intent to rescind 10 CFR 451 at the
close of fiscal year 2026 because the regulations will then be
obsolete. DOE welcomes all comments on this activity and specifically,
whether the Department should retain 10 CFR 451 in the event that
Congress amends the program's authority by extending the duration of
payment period and appropriating additional funds after FY 2026.
II. Procedural Issues and Regulatory Review
A. Executive Order 12866
Executive Order (E.O.) 12866, ``Regulatory Planning and Review,''
requires agencies, to the extent permitted by law, to (1) propose or
adopt a regulation only upon a reasoned determination that its benefits
justify its costs (recognizing that some benefits and costs are
difficult to quantify); (2) tailor regulations to impose the least
burden on society, consistent with obtaining regulatory objectives,
taking into account, among other things, and to the extent practicable,
the costs of cumulative regulations; (3) select, in choosing among
alternative regulatory approaches, those approaches that maximize net
benefits (including potential economic, environmental, public health
and safety, and other advantages; distributive impacts; and equity);
(4) to the extent feasible, specify performance objectives, rather than
specifying the behavior or manner of compliance that regulated entities
must adopt; and (5) identify and assess available alternatives to
direct regulation, including providing economic incentives to encourage
the desired behavior, such as user fees or marketable permits, or
providing information upon which choices can be made by the public.
B. 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 (IRFA) and a
final regulatory flexibility analysis (FRFA) for any rule that by law
must be proposed for public comment, unless the agency certifies that
the rule, if promulgated, will not have a significant economic impact
on a substantial number of small entities. As required by E.O. 13272,
``Proper Consideration of Small Entities in Agency Rulemaking,'' 67 FR
53461 (Aug. 16, 2002), DOE published procedures and policies on
February 19, 2003, to ensure that the potential impacts of its rules on
small entities are properly considered during the rulemaking process.
68 FR 7990. DOE has made its procedures and policies available on the
Office of the General Counsel's website (<a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>).
DOE reviewed this proposed rule under the provisions of the
Regulatory Flexibility Act and the policies and procedures published on
February 19, 2003. This proposal eliminates 10 CFR part 451 in response
to the conclusion of the relevant program and no additional payments
will be made after the end of fiscal year 2026. Therefore, DOE
initially concludes that the impacts of the proposed rule would not
have a ``significant economic impact on a substantial number of small
entities,'' and that the preparation of an IRFA is not warranted. DOE
will transmit this certification and supporting statement of factual
basis to the Chief Counsel for Advocacy of the Small Business
Administration for review under 5 U.S.C. 605(b).
[[Page 20941]]
C. Review Under the Paperwork Reduction Act
This proposed rule imposes no new information or record-keeping
requirements. Accordingly, the OMB clearance is not required under the
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.).
D. Review Under the National Environmental Policy Act of 1969
DOE is analyzing this proposed action in accordance with National
Environmental Policy Act of 1969, as amended, (NEPA) and DOE's NEPA
implementing regulations (10 CFR part 1021). DOE's regulations include
categorical exclusions for certain rulemakings. See 10 CFR part 1021,
subpart D, appendices A and B. DOE is considering the categorical
exclusions potentially applicable to this proposed rule and welcomes
comment on the potential application of categorical exclusion(s). DOE
will complete its NEPA review before issuing the final determination.
E. Review Under Executive Order 13132
E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), imposes
certain requirements on Federal 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 has examined this proposed rule and has tentatively determined
that it would 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. Therefore, no further action is required by E.O. 13132.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' 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, (3) provide a
clear legal standard for affected conduct rather than a general
standard, and (4) promote simplification and burden reduction. 61 FR
4729 (Feb. 7, 1996). Regarding the review required by section 3(a),
section 3(b) of E.O. 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 E.O. 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 proposed rule
meets the relevant standards of E.O. 12988.
G. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a 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), (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 ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect them. On March 18, 1997, DOE published
a statement of policy on its process for intergovernmental consultation
under UMRA. 62 FR 12820. DOE's policy statement is also available at
<a href="http://www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf">www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf</a>.
DOE examined this proposed rule according to UMRA and its statement
of policy and determined that the proposed rescission does not contain
a Federal intergovernmental mandate, nor is it expected to require
expenditures of $100 million or more in any one year by State, local,
and Tribal governments, in the aggregate, or by the private sector. As
a result, the analytical requirements of UMRA do not apply.
H. Review Under the Treasury and General Government Appropriations Act,
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 proposed 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.
I. 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 proposed rule would not result
in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of 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
information quality 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). Pursuant to OMB Memorandum M-19-15, Improving
Implementation of the Information Quality Act (April 24, 2019), DOE
published updated guidelines which are available at: <a href="https://www.energy.gov/cio/department-energy-information-quality-guidelines">https://www.energy.gov/cio/department-energy-information-quality-guidelines</a>.
DOE has reviewed this proposed rescission under the OMB and DOE
[[Page 20942]]
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
K. Review Under Executive Order 13211
E.O. 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 OIRA at OMB,
a Statement of Energy Effects for any significant energy action. A
``significant energy action'' is defined as any action by an agency
that promulgates 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 is likely to have a significant
adverse effect on the supply, distribution, or use of energy; or (2) is
designated by the Administrator of OIRA as a significant energy action.
For any 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.
DOE has tentatively determined that this rule would not have a
significant adverse effect on the supply, distribution, or use of
energy. Accordingly, DOE has not prepared a Statement of Energy
Effects. DOE may prepare such a statement for the final rule and seeks
all comments.
L. Review Under Additional Executive Orders and Presidential Memoranda
DOE has examined this proposed rule and has tentatively determined
that it is consistent with the policies and directives outlined in E.O.
14154 ``Unleashing American Energy,'': E.O. 14192, ``Unleashing
Prosperity Through Deregulation,'' and Presidential Memorandum,
``Delivering Emergency Price Relief for American Families and Defeating
the Cost-of-Living Crisis.'' This proposed rule, if finalized as
proposed, is expected to be an Executive Order 14192 deregulatory
action.
III. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking and request for comment.
List of Subjects in 10 CFR Part 451
Building and facilities, Electric utilities, Energy conservation,
Grant programs--energy, Income taxes, and Reporting and recordkeeping
requirements.
Signing Authority
This document of the Department of Energy was signed on May 9,
2025, by Chris Wright, 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 May 9, 2025.
Jennifer Hartzell,
Alternate Federal Register Liaison Officer, U.S. Department of Energy.
PART 451--[REMOVED]
0
For the reasons set forth in the preamble, under the authority of 42
U.S.C. 7101, et seq.; 42 U.S.C. 13317, DOE is proposing to remove part
451 of subchapter D of chapter II of title 10 of the Code of Federal
Regulations.
[FR Doc. 2025-08569 Filed 5-12-25; 9:30 am]
BILLING CODE 6450-01-P
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