Tag Archives: rulemaking

DOE Spotlight: Federal Energy Regulatory Commission

The Federal Energy Regulatory Commission, or FERC, is an independent agency charged with specific regulatory oversight in the energy industry, specifically the interstate trade of energy (i.e., natural gas, oil, and electricity) and reviewing proposals for certain energy infrastructure, including liquefied natural gas (LNG) terminals, interstate natural gas pipelines, and hydropower projects. Since its inception, FERC has played a critical role in the regulation (and deregulation) of the energy industry, though its public profile has varied between somewhat in the background, where only those in the industry ever paid it attention, to a notable political presence in the news, when the issues at hand became more mainstream.

Recently, FERC has made headlines after being tasked by the Trump Administration to investigate grid reliability concerns and whether coal and nuclear plants should be propped up monetarily for their ability to store fuel on site. While that proposal was ultimately rejected (as will be discussed later), it did bring FERC to the forefront of many headlines and debates, while also illuminating how little FERC is really understood in the mainstream.



With that in mind, what follows is a primer on what you need to know about FERC to understand its history and role in energy markets for the next time the Commission pops up in a front page news article.

History of FERC

In its current form, FERC was established in 1977, the same year as the Department of Energy (DOE). However, the Commission traces its lineage back to the 1920s with the establishment of the Federal Power Commission (FPC). The federal government established the FPC as an independent commission to oversee hydropower dams that were located on federally owned land or affected federal waters. Hydropower, which had been around in the form of rudimentary water wheels for over 2,000 years, had started to become more industrialized and critical in the United States with the increased demand for wartime electricity, so the FPC was the first government regulatory agency of energy in the United States, seeking to encourage hydropower projects while protecting federal lands, waterways, and water sources.

In the next decade, President Franklin Roosevelt took on the cause of dismantling the monopolies of the electric companies. With that goal, Congress passed the Federal Power Act in 1935. This legislation expanded the power of the FPC, which was still composed of the Secretaries of War, Agriculture, and Interior, to set wholesale electricity prices at levels they deemed ‘just and reasonable.’ President Roosevelt’s next legislative push was the 1938 Natural Gas Act, giving the FPC the additional authority to regulate the sale and transport of natural gas.

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FDR’s initial plan to expand the regulatory power of the FPC and neutralize the monopolies in the electricity sector continued on for the next few decades after he left office, with FPC’s role gradually expanding to include regulation of natural gas facilities, transmission of power over state lines, and more. The next instance of drastic change came in the wake of the oil crisis of 1973, which highlighted the need to consolidate the energy functions in government, which were at that time being conducted by over 30 different government agencies, under one umbrella. That umbrella was the U.S. Department of Energy, formed in 1977 by the Department of Energy Organization Act. Included in this establishment of DOE was the founding of the Federal Energy Regulatory Commission to replace the FPC. The mission of FERC was very similar to the mission that evolved at the FPC: to ensure the wholesale prices being paid for electricity were fair.

Following in the footsteps of its predecessor agency, FERC continued to gather new responsibilities over the years:

  • The Public Utilities Regulatory Policy Act of 1978 tasked FERC with the responsibility of managing a program to develop new co-generation and small power production, as well as the regulation of wellhead gas sales;
  • In the 1980s, FERC began to deregulate the natural gas markets;
  • The Energy Policy Act of 1992 attempted to liberalize the electricity market and gave FERC the ability to oversee wholesale competition in the newly open energy markets; and
  • The Energy Policy Act of 2005 also expanded FERC’s responsibilities to include power regulation in interstate commerce of energy, i.e. the transmission of electricity through power lines and oil and gas that crossed state lines via pipeline.

As energy markets, have gotten more and more deregulated in the 20th century, FERC’s powers and responsibilities to oversee those deregulated markets have grown to meet the additional complexities of such markets. This gradual evolution of responsibilities of FERC explains why the Commission has increasingly found itself and its decisions a topic of debate in the public sphere, where initially the work being done was niche and mundane enough that it did not cause many waves.

Purpose

As stated on FERC’s website, the mission of FERC is to ‘assist consumers in obtaining reliable, efficient and sustainable energy services at a reasonable cost through appropriate regulatory and market means.’ This mission is achieved through the guiding principles of organizational excellence, due process and transparency, regulatory certainty, stakeholder involvement, and timeliness.

FERC, after the decades of evolution, has come to have a litany of responsibilities working towards that main mission. However FERC does not simply have carte blanche for all energy and electricity oversight in the United States. The Commission instead gradually gained certain powers, while others were intentionally left to the states or to the open market. As a guide, the below table identifies what FERC does and what FERC does not do:

Click to enlarge

How FERC works

Given the variety of responsibilities that fall under FERC, understanding how the Commission actually works is critically important to understanding its place in the energy industry. In terms of makeup, FERC is composed of up to five Commissioners who are all appointed by the President, with one of the Commissioners serving as the Chairman (also designated by the President). Of the five Commissioners, no more than three may belong to the same political party, and each Commissioner is appointed for a five-year term (the Commissioners’ terms are staggered so they don’t all need to be replaced at once). Each Commissioner of FERC has an equal vote on regulatory issues, with the Chairman being the one to break any ties.

Despite being under the DOE umbrella, FERC operates independently and its decisions are not subject to further review by DOE– a vital component of it functioning as it is intended. The requirement that no more than three Commissioners come from one party is to keep it independent from politics. Despite the individuals being nominated by the President and confirmed by the Senate, FERC operates independently from the influence of the Executive and Legislative Branches, as the courts are the only entities that can review FERC decisions.

Beyond the five Commissioners, FERC is a large operation with over 1,200 employees and an agency budget of over $300 million. These figures may sound like a lot, but the process appears remarkably efficient when considered in the context of FERC’s responsibilities for an electricity industry worth $250 billion and tasked with regulating the electricity used by 73% of Americans.

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FERC’s regulatory review can be kicked into gear in a couple of different ways. For issues with lots of stakeholders and public impact, FERC will use the rulemaking process to ensure the ability to gather information, comments, and other input before making a ruling. The notices of these rulemakings will be posted publicly in the Federal Register so the question at hand and the intended pathway is in the public record for all to read, comment on, and follow. These rulemaking processes can be initiated by a petition from the energy industry, specific companies, stakeholders, or anyone in the public .  DOE can even initiate a FERC rulemaking, as it did recently with the grid resilience Notice of Proposed Rulemaking (NOPR), but FERC comes to the conclusion of that rulemaking independently, without being subject to DOE review.

For more specific topics undertaken by FERC, such as licensing of a hydropower project, FERC will also post notices of this activity in the Federal Register (in fact, this type of licensing proposal is among the most common notice FERC, or DOE as a whole, will post in the Federal Register– see graphic below). These actions are initiated by the entity looking for a license or other approval that FERC is authorized to give. For any stakeholders who seek to participate in FERC’s processes, these notices also provide an opportunity for any stakeholders to review the action and participate through protesting or filing a complaint.

Outside of a rulemkaing from FERC requested by an outside entity, FERC also continually reviews the aspects of the energy industry of which it has oversight, such as interstate electricity transmission and wholesale electricity sales, and can initiate investigation and action against any utility found to be in violation of any regulations. In the event of a violation, FERC has the authority to impose fines and other punitive measures. While these violations can also be flagged by outside entities (e.g., states, customers, companies), FERC alone has authority to determine fault and punishment, subject to review only by the courts.

FERC in the news today

As previously noted, FERC oversees an electricity industry worth hundreds of billions of dollars, and as the energy industry becomes increasingly in the focus of politicians and large corporations, so too do the collective actions of FERC. Below are several of the higher profile incidents that brought FERC to the front page of newspapers in recent years.

California utilities overcharging customers

In 2001, California began scrutinizing its power prices that had recently skyrocketed after the state electric grid was deregulated and opened up to competition. The state accused wholesalers of overcharging customers by $6.2 billion for electricity sold during acute power shortages, and California filed charges with FERC. As a result, FERC ordered refunds, though for only $124 million. The issue did not end there, with California then accusing FERC of stripping billions of dollars from potential refunds and failing  to properly ensure that prices set in California were ‘just and reasonable.’ Much has been written about this event, deemed California’s energy crisis– read about the entire timeline and actions surrounding the crisis here. While FERC faced criticism for potentially not doing enough, a 2016 federal court decision upheld FERC’s findings and actions.

Role in approving pipelines

A recurrent theme that brings FERC into the thick of controversy is its role in approving certain pipelines, as these projects are typically protested and strongly opposed by environmental groups. All major natural gas pipelines FERC has approved are listed on the Commission’s website (remember that while FERC regulates interstate commerce of gas and oil through pipelines, it only approves the siting and construction of natural gas pipelines and not oil pipelines). Such involvement in the approval of pipelines leads to FERC being a lightning rod for criticism by pipeline opponents of any environmental incidents and accidents that may occur. FERC sees numerous protests when it is debating the approval of specific pipelines by citizens who oppose the building of pipelines in their regions (such as the Transco pipeline in New Jersey, the Millennium Pipeline in New York, and the Marc 1 Hub Pipeline in Pennsylvania, just to name a few). Opponents of gas pipeline projects accuse FERC of approving too many pipelines, issuing approvals too easily without enough environmental analysis, and not taking opposition of locals seriously enough. On the other hand, those supporting natural gas infrastructure point out that FERC is required to allow developers to build gas pipelines as long as they comply with laws and regulations, and even stress that ‘it’s harder to build a pipeline today than it was 10 years ago…it takes more time and it’s more expensive.”

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These type of projects inspire such passion on both sides, but assuming FERC works as intended then the Commission is independent of partisan causes and political leanings. Instead, FERC accounts for all public comments and stakeholder concerns and ensures their rulings are based on existing laws, regulations, and stipulation.

Trump’s FERC without quorum

When President Trump took office in January 2017, he expressed a desire for Cheryl A. LaFleur (a sitting Commissioner and former Chairman of FERC) to be elevated to Chairman. However, this snub of the sitting Chairman, Norman Bay, led to Bay’s resignation from the Commission altogether. As FERC already had two vacant seats at this time, the resulting third vacancy left FERC with only two Commissioners and thus a lack of a quorum with which to take any action. For an administration that had promised to be a friend to the oil and gas pipeline industry, this sudden non-quorum meant that all pipeline projects that needed approval from FERC remained at a standstill until a quorum of Commissioners could be nominated and approved. While the three Commissioners Trump nominated were awaiting Senate confirmation, a fourth Commissioner announced her imminent departure and left FERC with just one sitting Commissioner.

The lack of a FERC quorum lasted six months, ending in August with the swearing in of two newly confirmed Commissioners. Those six months left various infrastructure and energy projects in limbo, the first time FERC had been without a quorum in its history. Eventually all of President Trump’s nominees were confirmed, and the fiver-person FERC now consists of Kevin J. McIntyre (the Chairman), Cheryl A. LaFleur, Neil Chatterjee, Robert F. Powelson, and Richard Glick.

DOE Grid Resilience Proposal

In September 2017, DOE formally proposed that FERC take action to implement reforms that would provide a financial boost to power providers who kept on site a 90-day fuels supply. This proposal was intended to give an edge to coal and nuclear generation facilities to provide a baseline degree of resilience and reliability to the electrical grid, as those are the only fuel sources where such a fuel supply is readily able to be stored on site.

This proposal was met with intense opposition from providers of renewable energy and natural gas, as well as from grid operators and former FERC Commissioners from both political parties. Those opposed accused DOE of unjustly trying to pick winners and prop up coal and nuclear, citing authorities like the North American Electrical Reliability Corporation (NERC) that have found that the reliability of the bulk power system is not at risk due to the recent closures of coal and nuclear plants.

FERC ultimately decided in January 2018 that the actions DOE proposed failed to meet the requirement that such actions be just, reasonable, and non-preferential of specific fuel types, doing so with a unanimous vote. FERC explained their decision by noting that the proposal was not shown to ‘not be unduly discriminatory or preferential,’ and that the 90-day fuel supply requirement would ‘appear to permit only certain resources to be eligible for the rate, thereby excluding other resources that may have resilience attributes.’ The decision by FERC was celebrated by many in the energy industry as demonstrating the independence of FERC and the process working as it should, with the Commissioners not simply voting based on party-lines and implementing whatever the Executive Branch (through the President and DOE) wanted– no doubt an important reminder in the increasingly partisan environment of U.S. policy-making.

 

 

These are just some of the recent highlights, as FERC always has its plate full with issues that bring passionate debate from multiple sides. For a list of some more controversial issues FERC has been tasked with addressing, see the ‘Controversies’ section of this article on FERC.

Sources and additional reading

About FERC: FERC.gov

An Overview of the Federal Energy Regulatory Commission and Federal Regulation of Public Utilities in the United States: FERC

Federal Energy Regulatory Commission (FERC): AllGov

Hydropower Regulatory History: U.S. Fish & Wildlife Service

What FERC Is and Why It Matters: Huffington Post

What is FERC? PBS

 

About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.  

Advice for Effective Public Comments in the Federal Rulemaking Process

Having spent a few years earlier in my career entrenched in the rulemaking process behind a number of regulations from the Department of Energy concerning appliance standards, I am able to empathize with the teams of analysts at federal agencies that are tasked with receiving and addressing the feedback that comes in during public comment periods. During every rulemaking process, there are real humans reading every single public comment received (even when those comments number in the thousands), cataloging the specific concerns from the stakeholders, conducting research and analysis regarding the points that were brought up, and ultimately responding to those comments– either by detailing why the existing analysis already addresses the comment or, if the stakeholder comment has successfully done its job, adjusting the analysis during the next round of the rulemaking to account for the issues brought up in the comment.

While submitting a comment in response to the federal rulemaking process can seem intimidating, the truth is that every rulemaking process receives comments from every sort of stakeholder, large and small, with the widest range of expertise on the topics possible (see previous article on how the rulemaking process works and what the function of the public comment period is here). Those involved in the regulatory process know to expect multi-page comment submissions with loads of data and testimonials from powerful trade associations or advocacy groups, but it is also common to receive more pointed and specific comments from concerned private citizens who don’t have any experience in the relevant industry, but simply have their own opinions and concerns. The beauty of the public rulemaking process, however, is that every single comment must be summarized in the next step of the rulemaking, along with a response as to how the new analysis addresses the concerns, no matter who submits it. With that in mind, regardless of whether you are representing a larger organization or just your personal interests as a citizen, what follows are six methods you can employ that will ensure your comment most effectively influence the federal rulemaking process.



1. Be accurate

This piece of advice should go without saying, but rest assured I have found that it needs to be said. If a comment submitted to the federal agency is found to have a basic inaccuracy in it, then the rest of the comment on that topic will be called into question and it can potentially carry less weight. An underlying inaccuracy in the comment will make responding to, or dismissing, the whole comment all too easy. So while it may be overly obvious, if you hope to make an impact on a regulatory rulemaking then be sure to verify the accuracy in everything you say.

 

2. Be specific with issues and provide alternatives

If you want your comment to be addressed specifically in the analysis, be sure to include specifics in the comment. Don’t say that something would be detrimental to businesses– state exactly what the detriment would be and why. Don’t state that a discussed technology would not be technologically or economically feasible– state what technology would be feasible and note what exactly is preventing the original technology from being so. Don’t state that a pricing analysis is unrepresentative of the market– describe how and why the analysis is off.

The point is that if the federal agency is given a vague reason for why the analysis is ‘bad’ or ‘off,’ but not given any specifics, then there is nothing tangible to address. The rebuttal to the non-specific comment can simply be to restate the original analysis and reasons behind it. However if a specific reasoning and alternative is instead provided, then you are giving the federal agency something meaty to address. The subsequent analysis must either move towards your alternative or give details about why that alternative is incorrect. But if your alternative is airtight and there are not holes to poke in it, then you will likely find success in shifting the analysis behind the rulemaking.

 

3. Address the issues the rulemaking asks about– but don’t be restricted to those topics

When reviewing a rulemaking document, whether in the early stages with a Request for Information (RFI) or later during the Notice of Proposed Rulemaking (NOPR) stage, you will often find specific issues called out on which the agency behind the rulemaking is seeking comment. These issues are numbered for ease of finding them, and sometimes (but not always!) listed in a single place at the end of the notice. If you do not see a list at the end of the notice, be sure to go through the document carefully to find them all in-line, where they’ll appear as in the example below.

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When the agency is pointing out these specific issues on which it requests comment, that shows where the most impact of a comment might be received. These are the issues that they might have the least amount of information (or they have information but recognize it’s outdated) concerning, or where they recognize there is considerable debate. Regardless of the reason, all comments on each of these numbered issues end up getting aggregated to get a clear picture of the available information and data before a decision on the direction of the rulemaking is made (though it is important to note that it is not decided by what received the most comments, but rather the accuracy and quality of the comments outweigh the quantity of comments received on an issue). If your position on the rulemaking is related to any of these specifically identified issues, make sure to frame your comment in direct response to the question asked (it even helps to note by number which issue your comment is addressing).

With all of that said, you should not feel that the identified issues are the only ones eligible for response or that the agency will not put equal weight behind comments regarding other aspects of the analysis. You might have comment or information on a topic on which the agency wasn’t focused or didn’t realize was controversial. So while it is important to fit your comments into the box of the issues identified by the notice if they are relevant to those issues, do not feel restricted to those topics. You just might be the only one to bring up this new issue, influencing the next stage of the rulemaking to address it more specifically.

 

4. Include hard data

The best way to back up your comment and encourage a specific response in the next stage in the analysis is to include your own data as evidence. Perhaps you think this data was overlooked by original analysis, or maybe you think the data that was included originally does not tell the whole story. Either way, if your data supports a change in the analysis and a different conclusion, then providing the full set of that data in your public comment is the best way to influence the rulemaking. Doing so will force the next stage of the analysis to either include that data (and thus changing the course of the analysis towards your desired outcome) or at the very least will require the next stage of the analysis to refute your data.

 

5. Include sources

Similar to including your own hard data, crucial to an effective public comment is providing evidence towards your points. Providing a comment that breaks down to be essentially subjective is unlikely to be effective, but if you can demonstrate your points with sources– e.g., scientific studies, experimental results, industry information, or marketing analysis, then the comment will make a bigger splash. The more you can ‘show’ your point rather than ‘tell’ it, the more substance and weight your comment will have.

 

6. Offer to follow up

An under-utilized strategy with regards to public comments on the public rulemaking process is making yourself available to the federal agency. The public comment stands on the record as a written statement of your thoughts and concerns on the rulemaking, but in commenting you can also offer to discuss the points further with the agency pursuing the rulemaking. Doing so may result in you being interviewed in the next fact-finding stage of the analysis, or you might also be invited to the next public meeting on the rulemaking to discuss your concerns further. These conversations can be the most valuable tool for really getting your point across and making sure the agency understands the basis of your viewpoint. Written comments only have the opportunity for a single back and forth between commenter and government agency, but conversations allow for the complete back-and-forth required for full understanding between the parties.

 

Conclusion

While there is no guarantee any single public comment will change the course of a particular rulemaking, if you follow these six guidelines then there is a greater chance that your comment will be well-received by the agency and carry the weight of consideration it deserves. If you have any additional questions on this process, don’t hesitate to reach out in the comments below or by contacting me directly.

Additional Reading

A Guide to the Public Rulemaking Process: Office of the Federal Register

Frequently Asked Questions: Office of Information and Regulatory Affairs

Notice and Comment: Justia

Notice-and-Comment Rulemaking: Center for Effective Government

Policy Rulemaking for Dummies

Rulemaking Process and Steps to Comment: The Network for Public Health Law

Tips for Submitting Effective Comments: Regulations.gov

 

 

About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.  

Federal Register Notice: Test Procedure for Distribution Transformers: Request for Information

The Department of Energy (DOE) published a Notice of Request for Information (RFI) in the September 22, 2017 issue of the Federal Register (82 FR 44347) on the test procedure for distribution transformers. This article intended to break down what exactly is being requested by the DOE, the steps that have come before and will come after this, and what it might mean for you.

What is this notice?

I’ve covered what an RFI entails my article on the DOE’s RFI for its net metering analysis, as well as the overall federal rulemaking process in the Policy Rulemaking Process for Dummies article—so click on those links to get the background information on those aspects of this process. However I have not had a chance to detail the DOE’s dealing with test procedures.



As detailed in the ‘Authority and Background’ section of the RFI, the Energy Policy and Conservation Act of 1975 (EPCA) authorizes DOE to regulate the energy efficiency of a wide array of covered consumer products and industrial equipment. Among that list of equipment is distribution transformers. As such, DOE first established regulatory standards for distribution transformers in 2007, and most recently completed full rulemaking process to update to the energy conservation standards for distribution transformers in 2013, which took effect in 2016. These standards set minimum energy efficiency standards for the equipment based on the type of distribution transformer, the applicable kVA rating, and BIL rating, and those final standards can be found here.

The authority of EPCA calls on DOE to not just set the minimum energy efficiency standards for distribution transformers (and other equipment), though. DOE is also responsible for setting the testing requirements, which manufacturers must use as a basis to 1) certify to DOE that their equipment complies with standards, and 2) make representations of the efficiency of their equipment to the public (e.g., through in manufacturer catalogs). In other words, the official DOE test procedure dictates the testing setup and methods in which the efficiency of the equipment is measured.

DOE currently has test procedures for distribution transformers, which can be found here. These test procedures were published in 2006 when the first efficiency standards for the equipment were published as well. As noted in this RFI, “EPCA requires that, at least once every 7 years, DOE evaluate test procedures for each type of covered equipment, including distribution transformers, to determine whether amended test procedures would more accurately or fully comply with the requirements for test procedures to not be unduly burdensome to conduct and be reasonably designed to produce test results that reflect energy efficiency, energy use, and estimated operating costs during a representative average use cycle.” In fact, during the 2013 update to the energy conservation standards for distribution transformers, DOE did just that and determined that the current test procedures were satisfactory and did not require an amendment. However during that rulemaking process, certain stakeholders took advantage of the opportunity to make a public comment and noted that the requirements for ‘percent of nameplate-rated load’, or PUL, of the test procedure might not be appropriate and should be addressed in a future test procedure rulemaking. This RFI published by DOE is the beginning of that promised future test procedure rulemaking on distribution transformers, set to give consideration to the test PUL requirements.

Background of Distribution Transformers

As detailed in the RFI, a transformer is “a device consisting of 2 or more coils of insulated wire that transfers alternating current by electromagnetic induction from 1 coil to another to change the original voltage or current value.” 10 CFR 431.192  Distribution transformers, according to the DOE definition, are specifically identified based on their input and output voltage and other electrical characteristics. Put simply, distribution transformers are the pieces of equipment that take the high-voltage power from transmission lines and step that power down to its safe, final voltage before it is sent to the customers (in their homes, commercial buildings, etc.). These distribution transformers can be found either on a utility pole or in a locked box on the ground. Depending on the area, a single distribution transformer might serve one customer (in a remote rural area) or it might serve many customers (in a dense urban area). Further, a single large industrial facility might require multiple distribution transformers of its own.

On the left is a utility-pole distribution transformer, while the right is a pad-mount distribution transformer. I can’t be the only one who has nostalgia looking at the one on the right and of using it as a base in kickball or as home base in capture the flag until my mom yelled at us to stop playing on it, right?

The full current test procedure for distribution transformers can be found here, which specifies the test system accuracy required; the methods for measuring resistance, losses, and efficiency value of the transformer; and the test equipment calibration and certification.

What is being requested

This RFI is the beginning of a full rulemaking cycle on the test procedures for distributed transformers, so this is the opportunity for stakeholders to make an early and strong impact on the direction of the rulemaking.

The main issue that was brought up during the 2013 energy conservation standards rulemaking with regard to the test procedure was the appropriateness of the PUL specification. The discussion of this issue centered on the idea that the PUL on which the transformers were tested, and thus the PUL on which the resultant declared efficiencies were based, are potentially not representative of the PUL at which the transformers would operate during actual use. If this is the case, then customers seeking out the transformer that would use the least energy might be misled, and transformers that actually save more energy than others in use might be found non-compliant with regulations. To address this issue, DOE is requesting comment on the following:

  • Issue 1: Any data or information on the PUL used during the first year of service for distributed transformers;
  • Issue 2: Typical PUL values used in the population of distributed transformers;
  • Issue 3: Whether data provided by manufacturers represents first year of service or full lifetime;
  • Issue 4: Whether transformer loads increase over time; and
  • Issue 5: How much the efficiency of a transformer effects the purchasing decision of customers.

DOE is also going to investigate the issue of temperature correction and if the current practice of calculating losses by assuming the temperature inside the transformer is equal to an outside ‘reference’ temperature. The concern is that the temperature inside the transformer is surely higher than an outside temperature, meaning the energy losses in practice would be higher than what is being calculated. To address this, DOE is requesting comment on the following:

  • Issue 6: Any data or information about whether calculating losses at ambient temperature or internal temperature is more representative of real transformer performance; and
  • Issue 7: Whether temperature varies with PUL.

The current test procedure specifies efficiency by a single tested PUL. DOE has engaged in some discussion on whether this is appropriate, if a different reference PUL should be used, or if transformers should be tested at multiple PULs. To this end, DOE is requesting comment on:

  • Issue 8: Any data or information on the continued use of a single PUL test requirement compared with the alternatives;
  • Issue 9: How accurate would testing at multiple PULs be to the distribution of real-use transformer operations and how much would that increase testing costs;
  • Issue 10: How many PULs would be appropriate at which to test in a scenario of testing multiple PULs; and
  • Issue 11: Whether there are alternative metrics that should be considered to determine transformer efficiency.

Lastly, DOE also seeks comment on the sampling process and calculation methods used in the test procedure. The specific types of comments DOE seeks are the following:

  • Issue 12: Whether the sampling requirements of units to be tested should be adjusted;
  • Issue 13: Whether the efficiencies advertised by manufacturers typically represent the minimum efficiency standard, the maximum represented efficiency they are allowed to use, or some other metric;
  • Issue 14: Comment on DOE’s requirements related to alternative methods for determining energy efficiency (AEDMs); and
  • Issue 15: Whether the AEDM provisions are useful and if manufacturers use them.

Again this RFI is just the beginning of the rulemaking process for the distributed transformer test procedure, but it also represents the best time to get involved if these test procedures affect you. The above issues are just the ones that DOE specifically is looking to hear about, but stakeholders are more than welcome to address any other topics they find important. As mentioned in the Policy Rulemaking Process for Dummies article, comment periods such as this one represent the best opportunities to directly impact potential regulations that could have real impacts on you or your business.

Note: I have in the works a post on how to submit the most effective public comments, so if there appears to be interest on this post regarding the net metering RFI then I’ll make sure to move up publication of that subsequent post to be helpful for commenting on this Notice in advance of the comment submission deadline. Update: See here for my post on how to make the most effective public comment on a public rulemaking.

Summary of RFI details

  • DOE published RFI asking for comments on development of the technical and economic analyses regarding whether the existing test procedures for distributed transformers should be amended (82 FR 44347).
  • Some key specific topics DOE is interested in receiving comments on include:
    • Ways to streamline and simplify testing requirements;
    • Measures DOE could take to lower the cost of testing requirements;
    • The relation between PUL being tested and PUL actually used in the field for distribution transformers;
    • Whether current temperature correction in the test procedure is flawed;
    • How testing based on a single PUL affects the final posted efficiency of equipment; and
    • The appropriateness of the sampling and calculation methods currently used.
  • Comments are to be submitted by October 23, 2017.
  • Further information is available at the Notice’s online docket, and questions can be directed to Jeremy Dommu at the DOE Office of Energy Policy and Systems Analysis or Mary Green at the DOE Office of the General Counsel.
  • As always, feel free to contact me through the Contact page or commenting below if you have any questions you think I could answer as well.

 

Updated on October 10, 2017

 

About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.  

Federal Register Notice: Costs and Benefits of Net Energy Metering: Request for Information

I’ve been excited to write a first post in the ‘Checking in on the Federal Register’ article series, but have been waiting for the right Notice to be posted in the Federal Register. Today is finally that day, as the Department of Energy (DOE) published a Notice of request for information (RFI) in the September 15, 2017 issue of the Federal Register (82 FR 43345). This Notice is a rather brief one, so I would encourage you to read it yourself, in addition to reading this post where I’ll summarize the important details and pre-emptively answer any questions you may have.

What is an RFI?

If you’ve already read my Policy Rulemaking Process for Dummies article, you might be confused—RFIs don’t appear anywhere in that summary of the typical rulemaking process. However, an RFI falls into the category of situations where a Notice of Proposed Rulemaking (NOPR) is not the first Federal Register notice. An RFI is issued, such as in this case, when a topic is particularly complex or contentious, and so the agency solicits public feedback earlier in the process to ensure it has all the best and most up-to-date data and information available before beginning its analysis.



In this instance, DOE indicates they are preparing a cost/benefit study on net metering as a part of the Grid Modernization Initiative. DOE is likely seeking out all possible resources and data sets from stakeholders because net metering is a very contentious issue and it is crucial to have all possible information before digging into the study.

Background of Net Metering

According to DOE, net metering, or net energy metering (NEM), is the “the practice of using a single meter to measure consumption and generation of electricity by a small generation facility (such as a house with a wind or solar photovoltaic system). The net energy produced or consumed is purchased from or sold to the power provider, respectively.” Thus, when these customers who generate their own electricity have generated more power than they are using, they are able to sell back their excess electricity to the utility who controls the transmission and distribution system to which they are connected.

The debate on net metering often pits companies and customers installing rooftop solar panels against utilities. The main crux of the debate surrounds rate design and the issue of whether customers whose excess solar power gets sold back into the larger utility grid system should be credited at the retail rate of electricity or if that unfairly results in these solar customers not paying their fair share of the grid upkeep costs.

These disputes have been commonly going to courts in states with frequent residential solar power installations. For a quick rundown of where each state stood on laws regarding net metering (as of late 2016), see this summary by the National Conference of State Legislatures. For a summary of the most contentious net metering legal battles going on in 2017, see this write up by Utility Dive. However since this is such a common and frequent debate across many different states, the best way to see the latest news is a quick Google search—the most recent development coming from just approved rules and regulations for net metering in Nevada.

What is being requested

In short, this RFI is requesting that stakeholders submit any relevant data, studies, or information they have in regards to the costs and benefits of net metering. DOE specifically requests information from the perspectives of the utilities’ business interests, the rate-paying consumers, and those tasked with addressing the technical and operational challenges of net metering.

As such, this RFI casts a rather wide net as to who prospective stakeholders would be—not only will the expected utilities and energy advocates likely submit comments, but the door is open for any private citizen or group of citizens to express their thoughts and concerns. As mentioned in the Policy Rulemaking Process for Dummies article, comment periods such as this one represent the best opportunities for you, either as a private citizen or a member of an organization, to directly impact potential regulations that could have real impacts on your life.

While there are numerous public studies available that DOE can, and certainly already has, referenced for their information gathering process, the key to this comment request is that they would like those with deep knowledge and experience with the topic to provide comment and context on those existing studies (specifically citing studies done since the beginning of 2012). DOE is hoping to hear if stakeholders find there to be any flaws in commonly cited studies on the topic, information that is not discussed in those studies, or data/information that stakeholders may have internally that have not yet been made public. In essence, this RFI from DOE is indicating they are studying the costs and benefits of net metering, and if you have any information you think is important to be included in that study then now is the time to raise your hand. The analysis generated from the information in this RFI will ultimately be presented to Congress.

Note: I have in the works a post on how to submit the most effective public comments, so if there appears to be interest on this post regarding the net metering RFI then I’ll make sure to move up publication of that subsequent post to be helpful for commenting on this Notice in advance of the comment submission deadline.

UPDATE: See this blog post for advice on making an effective public comment

Summary of RFI details

  • DOE published RFI asking for comments on the costs and benefits of net energy metering (82 FR 43345).
  • Specific topics DOE is interested in receiving comments on include:
    • Motivations and policy context of cost-benefit analyses of net metering;
    • Types of costs and benefits that should be considered for net metering;
    • Methodology issues typically encountered in net metering studies;
    • Context for what drives differing costs or benefits in different net metering studies; and
    • Any emerging issues that should be considered in future net metering studies that may not have been relevant to studies in the past.
  • Comments are to be submitted by October 30, 2017.
  • Further information is available at the Notice’s online docket, and questions can be directed to Kate Marks at the DOE Office of Energy Policy and Systems Analysis.
  • Feel free to contact me, through the Contact page or commenting below, if you have any questions you think I could answer as well.

 

 

 

Updated on October 10, 2017

About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.  

Policy Rulemaking Process for Dummies

Calling this article “for dummies” is tongue-in-cheek, because the inner workings of government and the development of public policy are shrouded in mystery for most people. However this mystery does not persist because the process is too difficult for the average person to understand (my rant about how foolish it is that this part of the policy process is not taught in middle schools or high schools is for another day). In fact, the beauty of the rulemaking process is that it is designed to engage those outside the government world.

After getting personally involved in the rulemaking process to determine energy efficiency standards for various electronic products, I learned what occurred behind the curtains for these federal energy regulations– just how involved the process of determining these regulations were, how many different parties came into play, and how backed in data, testing, analysis, and public feedback these final regulations were. Many resources exist that explain the whole rulemaking process in more detail and completeness than I will, and a few of those resources can be found at the end of this post, but as someone who spent several years on the inside I will provide a brief overview of the process and a few insights I picked up along the way.



What is a Rulemaking?

A rulemaking is the process that is mandated for creating federal regulations, including the analysis of the effects of a potential regulation and the solicitation of public feedback along the way. Rather than having lawmakers themselves create the specific regulations for certain topics, Congress instead authorizes federal agencies to dive into the details and research, analyze, and dictate the final details of those rules. The regulations produced at the end of a rulemaking have all the effect of a law, and all existing federal regulations are listed in the Code of Federal Regulations (CFR). For anyone looking to find out the particulars of any federal regulation, the CFR is the repository to reference. Federal regulations cover a broad range of topics—from energy to telecommunications to patents and more, with these topics being listed in the CFR’s Table of Contents.

The Beginning of the Rulemaking Process

While the federal agencies, such as the Department of Energy (DOE) or the Environmental Protection Agency (EPA), are the main entities that control the rulemaking process, no regulations can be issued without proper statutory authority being first granted. Even though the regulations posted in the Federal Register (FR) are attached to Executive Branch agencies, the authority to issue these regulations comes from Congress. Each regulation proposed and ultimately issued has an authority section somewhere in the beginning so the reader can trace its history and why it was initiated.

Two types of authority—Left is where Congress passed a law to initiate a specific rulemaking proces (DOE’s regulation of the energy efficiency of metal halide lamp fixtures, 79 FR 7746); Right references the broad authority granted by Congress to regulate certain areas (EPA’s regulation of air pollutants, 82 FR 39712)

The Congressional authority for a rulemaking can either come from the law that first created the federal agency and dictated which areas it had jurisdiction to regulate (such as the above right, where EPA references the authority to regulate air pollutants from the general powers granted to EPA by Congress), or Congress can pass a law that specifically directs an existing agency to go through the rulemaking process and set regulations for a particular topic of interest (such as the above left, where DOE references the authority from a law that Congress passed instructing DOE to establish energy conservation standards for certain appliances by a given date).

Stepping Through the Rulemaking Process

Make no mistake about it—the rulemaking process for federal regulations is very long and in depth. Nothing is done haphazardly, with the people behind it conducting extremely extensive factfinding and analysis. The amount of cumulative effort that goes into regulating, for example, the energy efficiency of a lightbulb or ceiling fan is mindboggling. While the process behind each rulemaking could differ depending on the regulation’s history, complexity, urgency, importance, or politics, the generally expected process is outlined as follows:

Notice of Proposed Rulemaking

The Notice of Proposed Rulemaking (abbreviated as either NOPR or NPRM) is often the first official document published that announces the beginning of the rulemaking process. Included in the NOPR is a preamble detailing the goal of the rulemaking, the authority granting the agency the power, and the relevant dates and contact information for the rulemaking; the supplemental information section that discusses the initial framework, background data, preliminary analysis, and merits of the proposal; and a preview of what the regulation language would look like in the CFR. The NOPR is not the final regulation, but rather serves to inform the public about the initial findings of the analysis based on the preliminary information collected and provide the public stakeholders the opportunity to provide feedback on those findings (more on that later).

There do exist a couple of exceptions where the NOPR won’t be the first notice from an agency regarding the rulemaking process:

  • An agency might receive a petition for rulemaking from an interest group or member of the public, making the case for why a specific regulation is needed. The agency might then publish that petition in the FR to solicit comments on whether a rulemaking on that topic should be pursued.
  • Alternatively, an agency may, for particularly complex or critical rulemaking, choose to publish a preliminary document in the FR, such as an Advanced Notice of Proposed Rulemaking (ANOPR) or a Framework Document. The goal of publishing either of these documents would be to solicit public feedback earlier on in the information gathering and analysis to ensure the initial framework set up for analysis is headed in the right direction. Neither of these documents are mandatory, but when a potential regulation might have additional complications then the use of these early publications ensure those issues can be addressed thoroughly.
  • Lastly, there are times where an agency initiates a negotiated rulemaking. When this happens, the agency will invite the stakeholders and major players to meetings to try and reach an agreement on the terms of a proposed rule. These meetings will include representatives from multiple viewpoints on the topic, and if a consensus can be reached then the agency may endorse those terms as a basis for the proposed rule.

Comment Period

After a NOPR (or earlier preliminary document) is published in the FR, the agency will request comments from the public during an official comment period. These comments can be either in agreement or in opposition, and they can pertain to the rulemaking generally or to a specific part of the analysis. The typical comment period will last 30 to 60 days, though it can vary. More complex rules might have longer comment periods to allow stakeholders enough time to digest and respond to the proposed rulemaking, or the public can even request the comment period be extended if there are extenuating circumstances (though if the agency does not find there to be good reason to do so, they do not have to grant this request). Additionally, if the agency finds that comments received were not of the type and quality needed to move forward with the next stage of the analysis, the comment period can be re-opened. The agency might also find that the initial round of comments brought up new and complicated issues that requires further public comment. In these instances, the agency can open a second comment period to allow reply comments on the newly arisen issues, or alternatively the agency might publish a second NOPR instead of moving onto the Final Rule.

What is most important to remember about the comment period is that this is one of the best opportunities for you, as either a private citizen or a member of an organization, to directly impact and influence the regulations that will affect you.

Final Rule

After the completion of the NOPR, the agency will ultimately publish a Final Rule in the FR. The format of the Final Rule will look very similar to that of the NOPR, with the same general sections and analyses. However, the ‘Dates’ section will no longer dictate when the comment period will close—rather it will indicate the date that the new regulation is effective (generally within 30 days of publication).  The Final Rule now represents the new law of the land and will include a section of what changes need to be made to the CFR (as well as the effective date)—these changes can be a whole new section to the CFR, removing existing sections, or piece-by-piece edits to CFR text. This changing of the CFR text is the final step in the rulemaking process.

Congressional Review

In accordance with the Congressional Review Act, all Final Rules are subsequently reviewed by Congress. If both the House and Senate pass a resolution of disapproval of a regulation within 60 days (without Presidential veto), the Final Rule becomes void and cannot be republished in its existing state. Such overturning of Final Rules is typically uncommon, however, as Congress only successfully exerted this power one time from its inception in 1996 through 2016 (though the unique political climate in 2017 led to the Congressional Review Act to be successfully invoked 14 times, leading some to debate the merits of retaining this Congressional power and a bill proposed in the Senate to repeal it).

Despite the Congressional Review Act, the role of Congress in the rulemaking process is typically to simply grant the regulatory powers to the agencies, leaving the details and analysis to the experts employed by the agencies.  It would be naïve to think, however, that the final direction ultimately chosen at the end of a rulemaking was not influenced by politics. After analyzing and presenting all the facts on the table, the final direction resides with the priorities and policy preferences of the leaders of the agency and, by extension, the Executive Branch.

How you can participate

As stated earlier, one of the key components of a federal regulation that separates it from a law is the built-in mechanism to solicit feedback from the public. There are a few different ways this feedback is collected, each with their own advantages.

Public Comments

As mentioned earlier, after each NOPR, private citizens and interest groups alike are engaged to comment on the proposed rule, enabling them to directly affect the final regulations in a way not typical of all public policy. There are several primary goals of collecting these public comments:

  • They give citizens, interest groups, companies, and any other affected group the opportunity voice their position on the potential rule and how it might affect them by providing information the agency might not have been able to gather on its own;
  • They help the agency to improve the final regulations by considering this previously undiscovered information or vetting the information it did gather; and
  • They reduce the likelihood that stakeholders find issue with the regulations and bring those complaints to the courts.

To accomplish these goals, the continued engagement (both formal and informal) of the public is critical. Those who are submitting comments, though, should take note that the process dictated by what position receives the greatest volume of comments. Rather, the content of each comment is added into the public record of the rulemaking along with the data, expert opinions, and other facts. The comments are your opportunity to convince the agency that there is additional data to consider or new arguments to address. These comments can shift the direction of the rulemaking if they are factual, demonstrable, and convincing, as all comments made on the public record are then mentioned and specifically addressed in the subsequent publication stage—either agreeing with them or presenting reason to refute them. Later, I plan on writing a blog post that will give some tips and tricks on how to make public comments as effective as possible at influencing the rulemaking (update: read blog post on how to make effective public comments here).

Interviews

While preparing any of the public notices, the federal analysts might contact stakeholders (interest groups, affected companies, etc.) to be interviewed about the facts behind the regulation. Engaging in these conversations before the publication of the NOPR and Final Rule allows for a constructive and in-depth back-and-forth where the stakeholder can work to convince the analysts about their point-of-view. When these interviews occur, they are often the best opportunity for a stakeholder to convey their arguments and influence the rulemaking.

Public Hearings

Another way these key stakeholders are engaged by the rulemaking process is through public hearings. These hearings often occur after each NOPR or preliminary notice, though they are only required by certain agencies. The agency will specifically invite the key stakeholders to attend, though they are open to the public for anyone with an interest in the rulemaking. Public hearings are another opportunity where back-and-forth discussions can occur, both for the agency to explain the proposal and answer questions about the analysis that has been put forth and for the stakeholders to argue their cases in person. The other unique aspect of these public meetings is they allow for an on-the-record dialogue between the different stakeholders themselves, should there be disagreement among them.

Keeping Informed

If you want to keep up with potential new rulemakings that are of interest to you, the FR allows you to subscribe to customized daily updates. You can have all FR notices from a specific agency emailed to you every day they become available, or you can even subscribe based on keywords—regardless of which agency it comes from. To subscribe, create an account on federalregister.gov and then add subscriptions at this link.

Example of what an email from the Federal Register will look like if you subscribe to DOE notices

Additionally, at least once a year every agency publishes a regulatory agenda. This agenda will outline the planned regulatory and deregulatory actions for the coming season or year. If there is a particular agency whose regulations are of interest to you, follow this link to read the list of current regulatory items on the agenda.

 

Sources and Additional Reading:

A Guide to the Rulemaking Process- Prepared by the Office of the Federal Register

The Federal Rulemaking Process: An Overview– Congressional Research Service

Regulations and Rulemaking Process FAQ- Office of Information and Regulatory Affairs

Learn the Steps in the Federal Rulemaking Process

About the Rulemaking Process- United States Courts

Flowchart of the Federal Rulemaking Process- Citizen.org (this resource is more in depth than the title ‘flowchart’ will make you think—but a great, thorough resource)

From two specific federal agencies of interest to the topics in this blog:

Appliance & Equipment Standards: Department of Energy Regulatory Process

The Basics of the Regulatory Process: United States Environmental Protection Agency

 

Related Posts:

Federal Register Notice: Costs and Benefits of Net Energy Metering: Request for Information

Federal Register Notice: Test Procedure for Distribution Transformers: Request for Information

Article updated on October 10, 2017

 

 

About the author: Matt Chester is an energy analyst in Washington DC, studied engineering and science & technology policy at the University of Virginia, and operates this blog and website to share news, insights, and advice in the fields of energy policy, energy technology, and more. For more quick hits in addition to posts on this blog, follow him on Twitter @ChesterEnergy.