[Federal Register Volume 89, Number 83 (Monday, April 29, 2024)]
[Rules and Regulations]
[Pages 33194-33196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08984]


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DEPARTMENT OF ENERGY

10 CFR Part 420

RIN 1930-AA01


Mandatory Transmission and Distribution Planning Support 
Activities

AGENCY: Office of State and Community Energy Programs, State Energy 
Program, Department of Energy.

ACTION: Interim final rule and request for comment.

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SUMMARY: The U.S. Department of Energy (DOE) is publishing an interim 
final rule that amends the State Energy Program (SEP) regulations to 
incorporate certain changes made to the DOE-administered formula grant 
program by the Infrastructure Investment and Jobs Act of 2021. Through 
this rulemaking, DOE amends SEP's mandatory requirements for state 
energy conservation plans.

DATES: This rule is effective April 29, 2024. Written comments must be 
received by May 29, 2024.

FOR FURTHER INFORMATION CONTACT: Ari Gerstman, U.S. Department of 
Energy, Office of State and Community Energy Programs, State Energy 
Program, SCEP-30, 1000 Independence Avenue SW, Washington, DC 20585-
0121, Telephone: (240) 388-5805, Email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Authority and Background

    The U.S. Department of Energy's State Energy Program provides 
financial assistance in the form of formula grants to states, U.S. 
territories, and the District of Columbia (hereinafter referred to as 
states) \1\ for a wide variety of energy efficiency and renewable 
energy initiatives authorized under the Energy Policy and Conservation 
Act (EPCA) (Pub. L. 94-163), as amended. 42 U.S.C. 6321 et seq. Section 
40109(a)(3) of the Infrastructure Investment and Jobs Act (IIJA 2021) 
(Pub. L. 117-58) amended Section 362(c) of EPCA, which pertains to the 
mandatory features of state energy conservation plans. 42 U.S.C. 
6322(c). The submission of such plans is required for a state's 
participation in SEP and receipt of a formula grant. This interim final 
rule amends SEP regulations in part 420 of title 10 of the Code of 
Federal Regulations to incorporate the IIJA 2021 amendments.
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    \1\ Per 10 CFR 420.2, ``state'' means a state, the District of 
Columbia, Puerto Rico, or any territory or possession of the United 
States.
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    Section 40109 of IIJA 2021 amended section 362(c) of EPCA to 
include a new paragraph (7) that mandates the inclusion of transmission 
and distribution planning support activities into states' energy 
conservation plans.\2\ 42 U.S.C. 6322(c). With the issuance of this 
interim final rule, DOE amends 10 CFR 420.15 to include a new paragraph 
(g) to adopt this new statutory requirement. Once in effect, DOE's 
regulatory requirement for state energy conservation plans will reflect 
the corresponding statutory requirement.
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    \2\ The mandatory plan features include ``the mandatory conduct 
of activities to support transmission and distribution planning, 
including--(A) support for local governments and Indian Tribes; (B) 
feasibility studies for transmission line routes and alternatives; 
(C) preparation of necessary project design and permits; and (D) 
outreach to affected stakeholders.'' 42 U.S.C. 6322(c)(7).
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    DOE is also revising the reference to the Energy Policy and 
Conservation Act included in the 10 CFR part 420 authority line from 
Part D to Part B.

II. Interim Final Rulemaking

    DOE is issuing this action as an interim final rule, without prior 
notice and opportunity for public comment, for two reasons. First, in 
general, the Administrative Procedure Act (APA) requires an agency to 
first provide public notice of a proposed rulemaking that is published 
in the Federal Register and provide the public an opportunity to 
participate in the rulemaking before finalizing the regulatory action. 
5 U.S.C. 553(b)-(c). The APA's requirements of notice and public 
comment do not apply ``to the extent that there is involved . . . a 
matter related to agency . . . grants, benefits, or contracts.'' 5 
U.S.C. 553(a)(2), emphasis added. SEP is a program that provides 
formula and competitive grants as well as technical assistance to 
states to enhance energy security, advance state-led energy 
initiatives, and increase energy affordability.
    The interim final rule amends SEP's regulations to include the new 
mandatory features for state energy conservation plans established by 
section 40109(a)(3) of the IIJA 2021. States applying for SEP grants 
must submit plans that consider these new features in addition to those 
already set out SEP's regulations. 10 CFR 420.15. Because this 
rulemaking pertains to DOE's grant program and adopts new mandatory 
plan features that states must satisfy in order to receive SEP grant 
funds, the APA's requirements for notice and comment do not apply.
    Second, this rulemaking regards a nondiscretionary action because 
DOE is incorporating the section 40109(a)(3) of IIJA 2021 amendments to 
SEP's regulations without substantive change. The language adopted in 
regulation mirrors the language of the statute verbatim and DOE is not 
amending any other provision of SEP's existing regulations as part of 
this rulemaking. DOE is simply adopting a mandatory requirement for 
state energy conservation plans as prescribed in statute into SEP's 
regulation.
    Therefore, because this action concerns a grant program subject to 
an APA exception and is nondiscretionary, DOE has determined notice and 
comment is not necessary and is pursuing this activity through an 
interim final rule.

[[Page 33195]]

III. Procedural Requirements

A. Review Under Executive Orders 12866, 13563, and 14094

    This final rule has been determined not to be a ``significant 
regulatory action'' under E.O. 12866, Regulatory Planning and Review, 
58 FR 51735 (October 4, 1993) as supplemented and reaffirmed by E.O. 
13563, ``Improving Regulation and Regulatory Review'', 76 FR 3821 (Jan. 
21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory Review'', 
88 FR 21879 (April 11, 2023). Accordingly, this rule is not subject to 
review under the E.O. by the Office of Information and Regulatory 
Affairs (OIRA) within the Office of Management and Budget (OMB).

B. Administrative Procedure Act

    As discussed previously, the Administrative Procedure Act (APA), 5 
U.S.C. 551 et seq., generally requires public notice and an opportunity 
for comment before a rule becomes effective. 5 U.S.C. 553(b)-(c). 
However, the APA provides that the requirements of 5 U.S.C. 553 do not 
apply ``to the extent that there is involved . . . a matter relating to 
agency . . . grants, benefits, or contracts.'' The interim final rule 
amends SEP's regulations to include the new mandatory state energy 
conservation plan features established by section 40109(a) of the IIJA 
2021, which amended SEP's state energy conservation plan requirements. 
States applying for SEP grants are required to submit plans that 
consider these and the other mandatory features established in statute 
and codified in SEP's regulations. Because this rulemaking amends SEP's 
regulations at 10 CFR 420.15 to include features states must satisfy in 
order to receive a grant from SEP, the APA's general notice and comment 
requirements do not apply.

C. 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. As discussed 
previously, DOE has determined that prior notice and opportunity for 
public comment is not required under the APA for this rulemaking 
because it concerns a grant program. Because a notice of proposed 
rulemaking is not required for this action pursuant to 5 U.S.C. 553, or 
any other law, no regulatory flexibility analysis has been prepared for 
this interim final rule. See 5 U.S.C. 601(2), 603(a).

D. Review Under the Paperwork Reduction Act of 1995

    This interim final rule imposes no new information or recordkeeping 
requirements. Accordingly, Office of Management and Budget clearance is 
not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et 
seq.)

E. Review Under the National Environmental Policy Act of 1969

    DOE has determined that this interim final rule falls into a class 
of actions that are categorically exclude from review under the 
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et 
seq.) and DOE`s implementing regulations at 10 CFR part 1021. 
Specifically, DOE has determined that this rulemaking is consistent 
with activities identified in 10 CFR part 1021, subpart D, appendix A6, 
because it is strictly procedural and meets the requirements for 
application of a categorical exclusion. Therefore, DOE has determined 
that promulgation of this rule is not a major Federal action 
significantly affecting the quality of the human environment within the 
meaning of NEPA and does not require an environmental assessment nor an 
environmental impact statement.

F. Review Under 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. 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 
interim final 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. Accordingly, no further action is required by Executive 
Order 13132.

G. Review Under Executive Order 12988

    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 (Feb. 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 interim final rule meets the relevant standards 
of Executive Order 12988.

H. 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

[[Page 33196]]

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 www.energy.gov/gc/office-general-counsel). This interim 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.

I. 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 interim 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.

J. 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 interim final rule would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

K. Review Under the Treasury and General Government Appropriations Act, 
2001

    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 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). DOE has 
reviewed this interim final rule under the OMB and DOE guidelines and 
has concluded that it is consistent with applicable policies in those 
guidelines.

L. Review Under Executive Order 13211

    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 interim 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.

M. 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 interim 
final rule.

List of Subjects in 10 CFR Part 420

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

Signing Authority

    This document of the Department of Energy was signed on April 22, 
2024, by David Crane, Under Secretary for Infrastructure, 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 April 23, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set forth in the preamble, the Department of Energy 
amends part 420 of chapter II, subchapter D 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 is revised to read as follows:

    Authority: Title III, part B, 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.)


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2. Amend Sec.  420.15 by revising the section heading and adding a new 
paragraph (g) to read as follows:


Sec.  420.15  Annual State applications and amendments to State plans.

* * * * *
    (g) The mandatory conduct of activities to support transmission and 
distribution planning, including--
    (1) Support for local governments and Indian Tribes;
    (2) Feasibility studies for transmission line routes and 
alternatives;
    (3) Preparation of necessary project design and permits; and
    (4) Outreach to affected stakeholders.

[FR Doc. 2024-08984 Filed 4-26-24; 8:45 am]
BILLING CODE 6450-01-P