[Federal Register Volume 89, Number 54 (Tuesday, March 19, 2024)]
[Rules and Regulations]
[Pages 19500-19501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05762]


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DEPARTMENT OF ENERGY

10 CFR Part 436

RIN 1901-AB63


Energy Savings Performance Contract Procedures and Methods 
Technical Amendment

AGENCY: Federal Energy Management Program, Department of Energy.

ACTION: Final rule; technical amendment.

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SUMMARY: The U.S. Department of Energy (DOE) is publishing this 
technical amendment to remove a regulatory provision specifying that 
the energy savings performance contract (ESPC) regulations apply only 
to ESPCs awarded on or before September 30, 2003. DOE's technical 
amendment to remove the regulatory sunset date will make the 
regulations consistent with the statutory authority.

DATES: The effective date of this technical amendment is March 19, 
2024.

FOR FURTHER INFORMATION CONTACT: 
    Mr. Ira Birnbaum, U.S. Department of Energy, Office of 
Infrastructure, Federal Energy Management Program (FEMP-1), 1000 
Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 
304-4940. [email protected].
    Ms. Ani Esenyan, U.S. Department of Energy, Office of the General 
Counsel, Forrestal Building (GC-33), 1000 Independence Avenue SW, 
Washington, DC 20585. Telephone: (240) 961-7713. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 155(a) of the Energy Policy Act of 1992 (EPAct 1992, Pub. 
L. 102-486) directed DOE, with the concurrence of the Federal 
Acquisition Regulatory Council, to ``establish procedures and methods 
for use by Federal agencies to select, monitor, and terminate contracts 
with energy service contractors.'' On April 10, 1995, DOE published a 
final rule implementing the current ESPC regulations (the 1995 Final 
Rule) (60 FR 18326), which included the sunset date originally in 
section 155 of the Energy Policy Act of 1992 (Pub. L. 102-486). 
Specifically, section 155(c)(1) of EPAct 1992 provided, ``The authority 
to enter into new contracts under this section shall cease to be 
effective five years after the date procedures and methods are 
established. . .''. The statutory sunset date was subsequently extended 
several times \1\ until the ESPC statutory authority was permanently 
reauthorized by section 514 of the Energy Independence and Security Act 
of 2007 (Pub. L. 110-140), which removed the sunset language from 42 
U.S.C. 8287.
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    \1\ Energy Conservation Reauthorization Act of 1998 (Pub. L. 
105-388); Ronald W. Reagan National Defense Authorization Act for 
Fiscal Year 2005 (Pub. L. 108-375); Energy Policy Act of 2005 (Pub. 
L. 109-58).
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    In this rule, DOE is removing from 10 CFR 436.30(a) the provision 
specifying that subpart B applies only to ESPCs awarded on or before 
September 30, 2003. DOE's removal of the regulatory sunset date will 
make the regulations consistent with the statutory authority.

II. Need for Correction

    Currently, 10 CFR 436.30(a) specifies that subpart B applies only 
to ESPCs awarded on or before September 30, 2003. This provision is not 
consistent with current ESPC statutory authority, which was permanently 
reauthorized by EISA section 514. The regulatory amendment in this 
final rule makes the regulations consistent with statutory authority 
and therefore is technical in nature. DOE has historically updated the 
sunset language in the regulations to mirror the statutory language. 
(65 FR 39784; June 28, 2000). This final rule similarly updates the 
regulatory language to be consistent with statutory authority.

[[Page 19501]]

III. Procedural Issues and Regulatory Review

    Pursuant to the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B), DOE finds that there is good cause not to issue a 
separate notice to solicit public comment on the change made by this 
rule. Issuing a separate notice to solicit public comment is 
unnecessary. This rule makes a non-substantive change to the 
regulations and simply provides consistency between the regulation and 
statutory authority. Providing prior notice and an opportunity for 
public comment on such a change serves no useful purpose.
    As such, this rule is not subject to the 30-day delay in effective 
date requirement of 5 U.S.C. 553(d) otherwise applicable to rules that 
make substantive changes.

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule; technical amendment.

List of Subjects in 10 CFR Part 436

    Energy conservation; Energy Savings Performance Contracts, Federal 
buildings and facilities, Reporting and recordkeeping requirements.

Signing Authority

    This document of the Department of Energy was signed on March 13, 
2024, by Mary Sotos, Director of the Federal Energy Management Program, 
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 March 14, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
    For the reasons set forth in the preamble, DOE amends part 436 of 
chapter II, of title 10 of the Code of Federal Regulations, as set 
forth below:

PART 436--FEDERAL ENERGY MANAGEMENT AND PLANNING PROGRAMS

    The authority citation for part 436 is revised to read as follows:

    Authority:  42 U.S.C. 7101 et seq.; 42 U.S.C. 8254; 42 U.S.C. 
8258; 42 U.S.C. 8259b; 42 U.S.C. 8287, et seq.


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2. Amend Sec.  436.30 by revising paragraph (a) to read as follows:


Sec.  436.30  Purpose and scope.

    (a) General. This subpart provides procedures and methods which 
apply to Federal agencies with regard to the award and administration 
of energy savings performance contracts. This subpart applies in 
addition to the Federal Acquisition Regulation at Title 48 of the CFR 
and related Federal agency regulations. The provisions of this subpart 
are controlling with regard to energy savings performance contracts 
notwithstanding any conflicting provisions of the Federal Acquisition 
Regulation and related Federal agency regulations.
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[FR Doc. 2024-05762 Filed 3-18-24; 8:45 am]
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