[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Rules and Regulations]
[Pages 29853-29855]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12218]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
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: david.frantz@hq.doe.gov.
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]
BILLING CODE 6450-01-P