[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Rules and Regulations]
[Pages 29853-29855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12218]



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  Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and 
Regulations  

[[Page 29853]]



DEPARTMENT OF ENERGY

10 CFR Part 609

RIN 1901-AB32


Loan Guarantees for Projects That Employ Innovative Technologies

AGENCY: Loan Programs Office, Department of Energy.

ACTION: Final rule; technical amendment.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) is publishing this technical 
amendment to the regulations for the loan guarantee program authorized 
by Section 1703 of Title XVII of the Energy Policy Act of 2005 (Title 
XVII) to incorporate, without substantive change, an amendment to 
Section 1702(b) of Title XVII enacted by Section 305 of the 
Consolidated Appropriations Act, 2012.

DATES: This rule is effective May 21, 2012.

FOR FURTHER INFORMATION CONTACT: Mr. David G. Frantz, Acting Executive 
Director, Loan Programs Office, U.S. Department of Energy, 1000 
Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 
586-8336. Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 305 of the Consolidated Appropriations Act, 2012 amended 
Section 1702(b) of Title XVII by striking the existing subsection (b) 
and inserting instead a provision that makes clear no guarantee shall 
be made unless an appropriation for the cost of the guarantee has been 
made; the Secretary has received from the borrower a payment in full 
for the cost of the guarantee and deposited the payment into the 
Treasury; or a combination of one or more appropriations and one or 
more payments from the borrower has been made that is sufficient to 
cover the cost of the guarantee.

II. Summary of Today's Action

    Today's action is a technical amendment to revise the regulations 
for the loan guarantee program authorized by Section 1703 of Title XVII 
to incorporate, without substantive change, the amendment to Section 
1702(b) of Title XVII referred to above.
    Pursuant to authority at 5 U.S.C. 553(b)(B), the DOE finds good 
cause to waive the requirement for prior notice and an opportunity for 
public comment on this rulemaking because such procedures would be 
unnecessary. As DOE is merely inserting into the Code of Federal 
Regulations statutory provisions already applicable to these loan 
guarantees and removing language inconsistent with those statutory 
provisions prior notice and an opportunity for public comment would 
serve no useful purpose. For the same reason, DOE finds good cause 
under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date 
and make this rule effective immediately.

III. Procedural Requirements

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

    Today's final rule is a ``significant regulatory action'' under 
section 3(f) of Executive Order 12866, ``Regulatory Planning and 
Review.'' 58 FR 51735 (October 4, 1993). Accordingly, today's action 
was 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, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process. 68 FR 7990. The Department 
has made its procedures and policies available on the Office of General 
Counsel's Web site: http://www.gc.doe.gov. DOE today is revising the 
Code of Federal Regulations to incorporate, without substantive change, 
an amendment to Section 1702(b) of Title XVII. Because this is a 
technical amendment for which a general notice of proposed rulemaking 
is not required, the Regulatory Flexibility Act does not apply to this 
rulemaking.

C. Review Under the Paperwork Reduction Act of 1995

    This rulemaking imposes 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.6 of Appendix A to Subpart D, 10 CFR part 1021, which 
applies to rulemakings that are strictly procedural. 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 (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

[[Page 29854]]

it will follow in the development of such regulations. 65 FR 13735. 
EPCA governs and prescribes Federal preemption of State regulations as 
to energy conservation for the products that are the subject of today's 
proposed rule. States can petition DOE for exemption from such 
preemption to the extent, and based on criteria, set forth in EPCA. (42 
U.S.C. 6297) 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 final 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), (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 contains 
neither an intergovernmental mandate nor a mandate that may result in 
the expenditure of $100 million or more in any year, so these 
requirements under the 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 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). 
DOE has reviewed today's rulemaking under the OMB and DOE guidelines 
and has 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, 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 today's final 
rule.

List of Subjects in 10 CFR Part 609

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


[[Page 29855]]


    Issued in Washington, DC, on May 15, 2012.
David G. Frantz,
Acting Executive Director, Loan Programs Office.

    For the reasons set forth in the preamble, DOE hereby amends Part 
609 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.


0
2. In Sec.  609.8 revise paragraph (d) to read as follows:


Sec.  609.8  Term sheets and conditional commitments.

* * * * *
    (d) DOE's obligations under each Conditional Commitment are 
conditional upon statutory authority having been provided in advance of 
the execution of the Loan Guarantee Agreement sufficient under FCRA and 
Title XVII for DOE to execute the Loan Guarantee Agreement, and payment 
in full of the Credit Subsidy Cost for the loan guarantee that is the 
subject of the Conditional Commitment from one of the following:
    (1) A Congressional appropriation of funds;
    (2) A payment from the Borrower deposited into the Treasury; or
    (3) A combination of one or more appropriations under paragraph 
(d)(1) and one or more payments from the Borrower under paragraph 
(d)(2) of this section.
* * * * *

0
3. In Sec.  609.9 revise paragraph (d)(1) to read as follows:


Sec.  609.9  Closing on the Loan Guarantee Agreement.

* * * * *
    (d) * * *
    (1) Pursuant to section 1702(b) of the Act, DOE has received 
payment in full of the Credit Subsidy Cost of the loan guarantee from 
one of the following:
    (i) A Congressional appropriation of funds;
    (ii) A payment from the Borrower deposited into the Treasury; or
    (iii) A combination of one or more appropriations under paragraph 
(d)(1)(i) and one or more payments from the Borrower under paragraph 
(d)(1)(ii) of this section.
* * * * *

0
4. In Sec.  609.10 revise paragraph (d)(17) to read as follows:


Sec.  609.10  Loan Guarantee Agreement.

* * * * *
    (d) * * *
    (17) If Borrower is to make payment in full or in part for the 
Credit Subsidy Cost of the loan guarantee pursuant to section 
1702(b)(2) of the Act, such payment must be received by DOE prior to, 
or at the time of, closing;
* * * * *
[FR Doc. 2012-12218 Filed 5-18-12; 8:45 am]
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