[Federal Register Volume 71, Number 190 (Monday, October 2, 2006)]
[Rules and Regulations]
[Pages 57885-57887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-16169]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 420

RIN 1904-AB63


State Energy Program

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) is publishing a final rule that 
amends the State Energy Program regulations to incorporate certain 
changes made to the DOE-administered formula grant program by the 
Energy Policy Act of 2005 (EPACT 2005).

DATES: This rule is effective November 1, 2006.

FOR FURTHER INFORMATION CONTACT: Eric W. Thomas, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, State Energy 
Program, EE-2K, 1000 Independence Avenue, SW., Washington, DC 20585-
0121, (202) 586-2242, e-mail: [email protected], or Chris 
Calamita, Esq., U.S. Department of Energy, Office of the General 
Counsel, Forrestal Building, GC-72, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121, (202) 586-1777, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Section 123 of the Energy Policy Act of 2005 (EPACT 2005) (Pub. L. 
109-58) amended Title III, Part D of the Energy Policy and Conservation 
Act (EPCA) (Pub. L. 94-163), which pertains to State energy 
conservation plans. The submission of such plans is required for 
participation in the DOE State Energy Program for providing formula 
grants to States for a wide variety of energy efficiency and renewable 
energy initiatives. This final rule amends the DOE State Energy Program 
regulations in Part 420 of Title 10 of the Code of Federal Regulations 
to incorporate the EPACT 2005 amendments.
    Section 123 of EPACT 2005 amended section 362 of EPCA (42 U.S.C. 
6322) to provide, in a new subsection (g), that the Secretary of Energy 
shall, at least once every three years, invite the Governor of each 
State that has submitted a State energy conservation plan to DOE to 
review and, if necessary, revise the State plan. EPACT 2005 provides 
that in conducting this review, the Governor should consider the energy 
conservation plans of other States within the region, and identify 
opportunities and actions that may be carried out in pursuit of common 
energy conservation goals. With the issuance of this final rule, DOE 
amends 10 CFR 420.13 to include a new paragraph (d) that sets forth 
this new statutory requirement.
    Section 123 of EPACT 2005 also amended section 364 of EPCA (42 
U.S.C. 6324) to provide that the energy conservation goal in State 
plans must call for a 25 percent or more improvement in the efficiency 
of State energy use in calendar year 2012 as compared to calendar year 
1990. Previously, EPCA required a State energy conservation plan goal 
consisting of a 10 percent or more improvement in energy efficiency in 
calendar year 2000, as compared to calendar year 1990. DOE is amending 
10 CFR 420.13(b)(3) to include the new efficiency goal.

II. Rationale for Final Rulemaking

    DOE is issuing today's action as a final rule, without prior notice 
and opportunity for public comment, because DOE is incorporating the 
EPACT 2005 revisions to the State Energy Program without substantive 
change and this action is non-discretionary. In this circumstance, the 
provision of notice and an opportunity for comment is unnecessary.

III. Procedural Requirements

A. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''

    This final rule is not a ``significant regulatory action'' under 
section 3(f)(1) of Executive Order 12866, ``Regulatory Planning and 
Review.'' 58 FR 51735 (October 4, 1993). Accordingly, this action was 
not subject to review by the Office of Information and Regulatory 
Affairs (OIRA) in the Office of Management and Budget (OMB).

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 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 Executive Order 13272, Proper Consideration of Small Entities in 
Agency Rulemaking, 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, (68 FR 7990) to ensure 
that the potential impacts of its rules on small entities are properly 
considered during the rulemaking process. The Department has made its 
procedures and policies available on the Office of General Counsel's 
Web site: http://www.gc.doe.gov. Because this final rule consists of 
regulatory amendments for which a general notice of proposed rulemaking 
is not required, the Regulatory Flexibility Act does not apply.

C. Review Under the Paperwork Reduction Act of 1995

    This rulemaking will impose no new information or record keeping 
requirements. Accordingly, Office of Management and Budget 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 has determined that this rule is covered under the Categorical 
Exclusion found in DOE's National Environmental Policy Act regulations 
at paragraph A.5 of Appendix A to Subpart D, 10 CFR

[[Page 57886]]

part 1021, which applies to rulemaking interpreting or amending an 
existing rule or regulation that does not change the environmental 
effect of the rule or regulation being amended. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

E. Review Under Executive Order 13132, ``Federalism''

    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 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. No further 
action is required by Executive Order 13132.

F. Review Under Executive Order 12988, ``Civil Justice Reform''

    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 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 rule meets the relevant standards of Executive 
Order 12988.

G. 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 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 http://www.gc.doe.gov). This 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.

H. 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 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.

I. Review Under Executive Order 12630, ``Governmental Actions and 
Interference With Constitutionally Protected Property Rights''

    The Department has determined, under Executive Order 12630, 
``Governmental Actions and Interference with Constitutionally Protected 
Property Rights,'' 53 FR 8859 (March 18, 1988), that this rule would 
not result in any takings which might require compensation under the 
Fifth Amendment to the United States 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 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 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
This final rule has been reviewed by DOE under the OMB and DOE 
guidelines and it has been concluded that it is consistent with 
applicable policies in those guidelines.

K. Review Under Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''

    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,

[[Page 57887]]

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 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.

L. 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 final 
rule.

List of Subjects in 10 CFR Part 420

    Energy conservation, Grant programs--energy, Technical assistance.

    Issued in Washington, DC, on September 21, 2006.
Alexander A. Karsner,
Assistant Secretary, Energy Efficiency and Renewable Energy.

0
For the reasons set forth in the preamble, the Department of Energy 
amends chapter II 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 continues to read as follows:

    Authority: Title III, part D, 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.)


0
2. Section 420.13 of subpart B is amended by:
0
a. Revising paragraph (b)(3); and
0
b. Adding a new paragraph (d).
    The revision and addition read as follows:


Sec.  420.13  Annual State applications and amendments to State plans.

* * * * *
    (b) * * *
    (3) With respect to financial assistance under this subpart, a 
goal, consisting of an improvement of 25 percent or more in the 
efficiency of use of energy in the State concerned in the calendar year 
2012, as compared to the calendar year 1990, and may contain interim 
goals;
* * * * *
    (d) The Secretary, or a designee, shall, at least once every three 
years from the submission date of each State plan, invite the Governor 
of the State to review and, if necessary, revise the energy 
conservation plan of such State. Such reviews should consider the 
energy conservation plans of other States within the region, and 
identify opportunities and actions that may be carried out in pursuit 
of common energy conservation goals.

 [FR Doc. E6-16169 Filed 9-29-06; 8:45 am]
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