Renewable Energy Production Incentives

DEPARTMENT OF ENERGY <CFR>10 CFR Part 451</CFR> <DEPDOC>[EERE-2025-OT-0037]</DEPDOC> <RIN>RIN 1904-AF76</RIN> <SUBJECT>Renewable Energy Production Incentives</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE). <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The U.S. Department of Energy is proposing to rescind the Renewable Energy Production Incentives program regulations at the end of fiscal year 2026. DOE's proposal is intended to parallel the program's statutory sunset date. The Department seeks comments on any reason to rescind or not rescind these regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments must be received on or before June 16, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at <E T="03">www.regulations.gov</E> under docket number EERE-2025-OT-0037. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. David Taggart, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-5281. Email: <E T="03">DOEGeneralCounsel@hq.doe.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. General Discussion</FP> <FP SOURCE="FP-2">II. Procedural Issues and Regulatory Review</FP> <FP SOURCE="FP1-2">A. Review Under Executive Orders 12866</FP> <FP SOURCE="FP1-2">B. Review Under the Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">C. Review Under the Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">D. Review Under the National Environmental Policy Act of 1969</FP> <FP SOURCE="FP1-2">E. Review Under Executive Order 13132</FP> <FP SOURCE="FP1-2">F. Review Under Executive Order 12988</FP> <FP SOURCE="FP1-2">G. Review Under the Unfunded Mandates Reform Act</FP> <FP SOURCE="FP1-2">H. Review Under the Treasury and General Government Appropriations Act, 1999</FP> <FP SOURCE="FP1-2">I. Review Under Executive Order 12630</FP> <FP SOURCE="FP1-2">J. Review Under the Treasury and General Government Appropriations Act, 2001</FP> <FP SOURCE="FP1-2">K. Review Under Executive Order 13211</FP> <FP SOURCE="FP1-2">L. Review Under Other Executive Orders</FP> <FP SOURCE="FP-2">III. Approval of the Office of the Secretary</FP> </EXTRACT> <HD SOURCE="HD1">I. General Discussion</HD> In preparation for the approaching sunset date for the Renewable Energy Production Incentives (REPI) program, the U.S. Department of Energy (DOE) is proposing to rescind the program's regulations at title 10 of the Code of Federal Regulations (CFR) part 451. DOE seeks comments on any reason to rescind or not rescind these regulations. The final rule will be effective at the end of the fiscal year 2026. Section 1212 of the Energy Policy Act of 1992 (Pub. L. 102-486) established the REPI program to encourage production of electric energy from facilities owned by a State, a political subdivision of a State, or a non-profit electric cooperative using certain renewable energy resources. <SU>1</SU> <FTREF/> In response, DOE implemented a renewable energy production incentive program following the statute's requirements through a final rule in 1995, which established the regulations at 10 CFR 451. That rule contained initial procedures for application, qualification requirements, procedures for calculation of incentive payments, and administrative remedies. The rule also included the a “duration of incentive payments” provision that codified the statute's sunset requirement. 60 FR 36959 (July 19, 1995); 42 U.S.C. 13317(f). The REPI program's authorization was later modified through section 202 of the Energy Policy Act of 2005 (Pub. L. 109-58), <SU>2</SU> <FTREF/> and DOE issued a final rule incorporating those modifications into 10 CFR 451 in 2006, which extended the period for incentive payments to fiscal year 2026. 71 FR 46383 (Aug. 14, 2006). More recently, the program's authorization underwent minor revisions through section 3006(c) of the Energy Act of 2020 (Pub. L. 116-260). DOE did not undertake a rulemaking to amend 10 CFR 451 in response to the textual revisions adopted in 2020 and the fiscal year 2026 sunset remained. <FTNT> <SU>1</SU>  Codified at 42 U.S.C. 13317. </FTNT> <FTNT> <SU>2</SU>  Note, 42 U.S.C. 13317(f), as amended, states that “[n]o payment may be made under this section to any facility after September 30, 2026, and no payment may be made under this section to any facility after a payment has been made with respect to such facility for a 10-fiscal year period.” </FTNT> Through this proposed rule, DOE is providing stakeholders with advanced notice of the Department's intent to rescind 10 CFR 451 at the close of fiscal year 2026 because the regulations will then be obsolete. DOE welcomes all comments on this activity and specifically, whether the Department should retain 10 CFR 451 in the event that Congress amends the program's authority by extending the duration of payment period and appropriating additional funds after FY 2026. <HD SOURCE="HD1">II. Procedural Issues and Regulatory Review</HD> <HD SOURCE="HD2">A. Executive Order 12866</HD> Executive Order (E.O.) 12866, “Regulatory Planning and Review,” requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. <HD SOURCE="HD2">B. Review Under the Regulatory Flexibility Act</HD> The Regulatory Flexibility Act (5 U.S.C. 601 <E T="03">et seq.</E> ) requires preparation of an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) 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 E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 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. DOE has made its procedures and policies available on the Office of the General Counsel's website ( <E T="03">www.energy.gov/gc/office-general-counsel</E> ). DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. This proposal eliminates 10 CFR part 451 in response to the conclusion of the relevant program and no additional payments will be made after the end of fiscal year 2026. Therefore, DOE initially concludes that the impacts of the proposed rule would not have a “significant economic impact on a substantial number of small entities,” and that the preparation of an IRFA is not warranted. DOE will transmit this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b). <HD SOURCE="HD2">C. Review Under the Paperwork Reduction Act</HD> This proposed rule imposes no new information or record-keeping requirements. Accordingly, the OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 <E T="03">et seq.</E> ). <HD SOURCE="HD2">D. Review Under the National Environmental Policy Act of 1969</HD> DOE is analyzing this proposed action in accordance with National Environmental Policy Act of 1969, as amended, (NEPA) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include categorical exclusions for certain rulemakings. See 10 CFR part 1021, subpart D, appendices A and B. DOE is considering the categorical exclusions potentially applicable to this proposed rule and welcomes comment on the potential application of categorical exclusion(s). DOE will complete its NEPA review before issuing the final determination. <HD SOURCE="HD2">E. Review Under Executive Order 13132</HD> E.O. 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 descri ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 19k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━