[Federal Register Volume 73, Number 8 (Friday, January 11, 2008)]
[Rules and Regulations]
[Pages 1961-1962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-325]



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  Federal Register / Vol. 73, No. 8 / Friday, January 11, 2008 / Rules 
and Regulations  

[[Page 1961]]



DEPARTMENT OF ENERGY

10 CFR Part 609

RIN 1901-AB21


Loan Guarantees for Projects That Employ Innovative Technologies

AGENCY: Office of the Chief Financial Officer, Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) today publishes a final rule to 
amend DOE's October 23, 2007 final rule concerning loan guarantees for 
projects employing innovative technologies. This final rule removes an 
extraneous paragraph, originally included in the proposed rule, that 
was inadvertently retained in the October 23 final rule.

DATES: This rule is effective January 11, 2008.

FOR FURTHER INFORMATION CONTACT: David G. Frantz, Director, Loan 
Guarantee Program Office, Office of the Chief Financial Officer, 1000 
Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-8336, e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On October 23, 2007 (72 FR 60115), DOE promulgated a rule 
establishing procedures for the loan guarantee program authorized by 
Title XVII of the Energy Policy Act of 2005 (``Act'') (42 U.S.C. 16511-
16514). Title XVII authorizes the Secretary of Energy, after 
consultation with the Secretary of the Treasury, to make loan 
guarantees for projects that ``(1) avoid, reduce, or sequester air 
pollutants or anthropogenic emissions of greenhouse gases; and (2) 
employ new or significantly improved technologies as compared to 
commercial technologies in service in the United States at the time the 
guarantee is issued.'' (42 U.S.C. 16513(a)) Earlier, on May 16, 2007, 
the Department had published a Notice of Proposed Rulemaking and 
Opportunity for Comment (NOPR, 72 FR 27471) to establish regulations 
for the Title XVII loan guarantee program.
    Prior to publication of the final rule, on August 8, 2006, DOE had 
issued Guidelines for Proposals Submitted in Response to the First 
Solicitation for loan guarantees. The Guidelines were published in the 
Federal Register on August 14, 2006 (71 FR 46451), and the First 
Solicitation was issued on August 8, 2006.

II. Discussion of Amendment

    Today's final rule amends the October 23, 2007 final rule by 
removing a paragraph in section 609.1 regarding the application of the 
final rule to Pre-Applications, Applications, Conditional Commitments, 
and Loan Guarantee Agreements that were issued or entered into pursuant 
to the First Solicitation.
    DOE proposed in the NOPR that in order to ensure that DOE complied 
with the Revised Continuing Appropriations Resolution, 2007 (Pub. L. 
110-5) but did not prejudice Pre-Applicants that responded to the First 
Solicitation, the regulations would specify that they do not apply to 
the Pre-Applications, Applications, Conditional Commitments, and Loan 
Guarantee Agreements issued or entered into pursuant to the First 
Solicitation. Proposed Sec.  609.1(c)(1). DOE proposed that the only 
exceptions to this would be the default, recordkeeping, and audit 
requirements proposed for inclusion in DOE's regulations. Proposed 
Sec.  609.1(c)(2). DOE also proposed in the NOPR to permit DOE and an 
Applicant to agree in a Loan Guarantee Agreement entered into pursuant 
to the First Solicitation that additional provisions of DOE's 
regulations would apply to the particular project. Proposed Sec.  
609.1(c)(3).
    DOE received and responded to public comments on these issues in 
the notice of final rulemaking (72 FR 60132-60133). In the final rule, 
DOE modified the application of part 609 to those who responded to the 
First Solicitation by providing that ``[e]xcept as specified in 
[section 609.1(c)(1)], these regulations apply to all projects and loan 
guarantees pursuant to Title XVII, including those pursuant to the 
First Solicitation.'' (72 FR 60133). Thus, the final rule provides that 
DOE's regulations apply to all projects pursuant to Title XVII, except 
for section 609.3 (``Solicitations''), section 609.4 (``Submission of 
pre-applications''), and section 609.5 (``Evaluation of pre-
applications''). DOE, however, inadvertently left in the final rule 
proposed paragraph 609.1(c)(3), re-numbered as paragraph 609.1(c)(2) in 
the final rule, which would allow DOE and Applicants who submitted Pre-
Applications pursuant to the First Solicitation to agree to make 
additional provisions of Part 609 applicable to their projects. The 
change in coverage makes this paragraph of section 609.1 superfluous, 
and DOE removes paragraph (c)(2) with today's final rule.

III. Issuance of a Final Rule

    DOE has determined, pursuant to 5 U.S.C. 553(b)(B) and (d)(3), that 
prior notice and an opportunity for public comment on this rule are 
unnecessary and there is good cause to waive the requirement for a 30-
day delay in effective date. DOE has determined that the revision DOE 
is making to Part 609 is a technical change or correction about which 
the public would have no particular interest in providing comments. As 
explained earlier in this preamble, DOE is revising section 609.1 to 
remove a paragraph allowing DOE and Applicants who submitted 
Applications pursuant to the First Solicitation to agree to make other 
provisions of part 609 applicable to those projects. This paragraph was 
included inadvertently in the final rule, and is superfluous because 
609.1(c)(1) specifies which sections of part 609 do not apply to such 
Applications.
    Based on the foregoing, DOE finds that good cause exists to waive 
both the requirement to provide prior notice and an opportunity to 
comment on this rulemaking and the requirement for a 30-day delay in 
effective date.

IV. Procedural Review Requirements

A. Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this action is not subject to review under that Executive 
Order by the Office of Information and Regulatory

[[Page 1962]]

Affairs (OIRA) of the Office of Management and Budget (OMB).

B. National Environmental Policy Act of 1969

    DOE has determined that this final 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, part 
1021, which applies to a rulemaking that amends an existing rule or 
regulation which does not change the environmental effect of the rule 
or regulation being amended.

C. 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. DOE has 
found that prior notice and opportunity for public comment are not 
required for this rulemaking. Therefore, the analytical requirements of 
the Regulatory Flexibility Act do not apply to today's rule. 
Accordingly, DOE has not prepared a regulatory flexibility analysis for 
this rulemaking.

D. Paperwork Reduction Act

    This rule does not impose any new collection of information subject 
to review and approval by OMB under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.).

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. This final rule does 
not impose a Federal mandate on State, local or tribal governments. The 
rule would not result in 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. Accordingly, no assessment or analysis is 
required under the Unfunded Mandates Reform Act of 1995.

F. 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 rulemaking that may affect 
family well-being. This 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.

G. 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. DOE has determined that this rule would not preempt State 
law and 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. No further action is required by Executive Order 13132.

H. Executive Order 12988

    DOE has determined that, to the extent permitted by law, this final 
rule meets the relevant standards of Executive Order 12988.

I. Treasury and General Government Appropriations Act, 2001

    DOE has reviewed today's rule under OMB and DOE guidelines 
concerning dissemination of information to the public and has concluded 
that it is consistent with applicable policies in those guidelines.

J. Executive Order 13211

    Today's rule would not have a significant adverse effect on the 
supply, distribution, or use of energy and is therefore not a 
significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

K. Congressional Notification

    As required by 5 U.S.C. 801, the Department will submit to Congress 
a report regarding the issuance of today's final rule prior to the 
effective date set forth at the outset of this rule. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 801(2).

V. Approval by the Office of the Secretary of Energy

    Issuance of this rule has been approved by the Office of the 
Secretary.

List of Subjects in 10 CFR Part 609

    Administrative practice and procedure, Energy, Loan programs, and 
Reporting and recordkeeping requirements.

    Issued in Washington, DC, on January 7, 2008.
Steve Isakowitz,
Chief Financial Officer.

0
For the reasons set out in the preamble, DOE amends part 609 of 
subchapter H of chapter II of title 10 of the Code of Federal 
Regulations as set forth below:

PART 609--LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE 
TECHNOLOGIES

0
1. The authority citation for part 609 continues to read as follows:

    Authority: 42 U.S.C. 7254, 16511-16514.


Sec.  609.1  [Amended]

0
2. Section 609.1 is amended by removing paragraph (c)(2) and 
redesignating paragraph (c)(1) as paragraph (c).

[FR Doc. E8-325 Filed 1-10-08; 8:45 am]
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