[Federal Register Volume 71, Number 86 (Thursday, May 4, 2006)]
[Proposed Rules]
[Pages 26275-26281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-4195]
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DEPARTMENT OF ENERGY
Office of Energy Efficiency and Renewable Energy
10 CFR Part 430
[Docket No. EE-RM-03-630]
RIN 1904-AB52
Energy Conservation Program for Consumer Products: Classifying
Products as Covered Products
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking and opportunity for public
comment.
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SUMMARY: Under the Energy Policy and Conservation Act (EPCA or the
Act), the Department of Energy (DOE or the Department) is proposing to
define the term ``household'' and related terms. These definitions
would provide a basis for the Department to determine whether the
household energy use of products not currently covered by EPCA meets
the levels required for DOE to classify a product as a ``covered
product'' under the Act; such a classification would mean that DOE
potentially could establish energy conservation requirements for the
covered product. Once the ``household'' definition is in place, the
Secretary may exercise statutory authority to (1) classify as covered
products additional qualifying consumer products beyond the products
already specified in EPCA, and then (2) set test procedures and
efficiency standards for them.
DATES: The Department will accept written comments, data and
information regarding the proposed rule no later than June 19, 2006.
The Department has determined that a public meeting is unnecessary
under 42 U.S.C. 7191(c)(1), since no substantial issue of fact or law
exists and this rulemaking is unlikely to have a substantial impact on
the Nation's economy or large numbers of individuals or businesses.
ADDRESSES: Submit written comments, identified by docket number EE-RM-
03-630 and/or RIN 1904-AB52, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: [email protected]">coverageconsumer[email protected]. Include EE-
RM-03-630 and/or RIN 1904-AB52 in the subject line of the message.
Mail: Ms. Brenda Edwards-Jones, U.S. Department of Energy,
Building Technologies Program, Mailstop EE-2J, NOPR to Define
``Household'', EE-RM-03-630, and/or RIN 1904-AB52, 1000 Independence
Avenue, SW., Washington, DC 20585-0121. Telephone: (202) 586-2945.
Please submit one signed original paper copy.
Hand Delivery/Courier: Ms. Brenda Edwards-Jones, U.S.
Department of Energy, Building Technologies Program, Room 1J-018, 1000
Independence Avenue, SW., Washington, DC 20585-0121.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. For detailed instructions on submitting comments and
additional information on the rulemaking process, see section IV of
this document (Public Participation).
Docket: For access to the docket to read background documents or
comments received, go to the U.S. Department of Energy, Forrestal
Building, Room 1J-018 (Resource Room of the Building Technologies
Program), 1000 Independence Avenue, SW., Washington, DC, (202) 586-
9127, between 9 a.m. and 4 p.m., Monday through Friday, except Federal
holidays. Please call Ms. Brenda Edwards-Jones at the above telephone
number for additional information regarding visiting the Resource Room.
FOR FURTHER INFORMATION CONTACT: Linda Graves, Esq., Project Manager,
Coverage of Consumer Products, Docket No. EE-RM-03-630, EE-2J/Forrestal
Building, U.S. Department of Energy, Office of Building Technologies,
EE-2J, 1000 Independence Avenue, SW., Washington, DC 20585-0121, (202)
586-1851, E-mail: [email protected], or Francine Pinto, Esq., or
Thomas
[[Page 26276]]
DePriest, Esq., U.S. Department of Energy, Office of General Counsel,
GC-72/Forrestal Building, 1000 Independence Avenue, SW., Washington, DC
20585-0103, (202) 586-9507, E-mail: [email protected] or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Authority
B. Background
C. Summary of Proposed Rule
II. Discussion
A. The Proposed Definitions
B. Extent of Reliance on Definitions Used in the Department's
Residential Energy Consumption Survey
C. Conclusion
III. Procedural Requirements
A. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 13132, ``Federalism''
F. Review Under Executive Order 12988, ``Civil Justice Reform''
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act, 1999
I. Review Under Executive Order 12630, ``Governmental Actions
and Interference With Constitutionally Protected Property Rights''
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution or
Use''
IV. Public Participation
A. Determination Not to Hold Public Meeting
B. Submission of Written Comments
V. Approval by the Office of the Secretary
I. Introduction
A. Authority
Part B of Title III of the Energy Policy and Conservation Act sets
forth a variety of provisions that provide for the ``Energy
Conservation Program for Consumer Products Other than Automobiles.''
(42 U.S.C. 6291-6309) The program consists essentially of four parts:
Mandatory testing, labeling, and energy conservation standards, as well
as certification and enforcement procedures. DOE implements all parts
of the program except for the labeling provisions, which are
implemented by the Federal Trade Commission (FTC).
The Act lists specific types of consumer products that are subject
to this program, referring to them as ``covered products,'' and
authorizes the Department to add other consumer products to the program
as covered products. (42 U.S.C. 6292(a) and (b)) The Department may add
any type of consumer product if: (1) ``classifying products of such
type as covered products is necessary or appropriate to carry out the
purposes'' of EPCA, and (2) the annual per household energy use of such
products in the households that use them is likely to average more than
100 kilowatt-hours. (42 U.S.C. 6292(b)) For purposes of section
6292(b), ``[t]he term `household' shall be defined under rules of the
Secretary [of Energy].'' (42 U.S.C. 6292(b)(2)(C)) This notice proposes
a rule that would amend 10 CFR 430.2 to define ``household'' as well as
four related terms, three of which are used in defining ``household.''
The Department may prescribe test procedures for any product it
classifies as a ``covered product.'' (42 U.S.C. 6293(b)(1)(B)) If the
Department prescribes such test procedures, the FTC may also prescribe
a labeling rule under EPCA for the product if it determines that
labeling will assist purchasers in making purchasing decisions and is
economically and technically feasible. (42 U.S.C. 6294(a)(3)) Finally,
the Department may prescribe energy conservation standards for a type
of consumer product it classifies as covered if the product meets
certain additional criteria, such as ``average per household energy use
within the United States'' in excess of 150 kilowatt-hours, and
``aggregate household energy use'' in excess of 4.2 billion kilowatt-
hours, for any prior 12-month period. (42 U.S.C. 6295(l)(1))
Once the household definition is finalized through this rulemaking,
the Secretary may exercise statutory authority (1) to identify as
covered products additional qualifying consumer products beyond the
products already specified in EPCA, and then potentially (2) to set
test procedures and efficiency standards for the newly covered consumer
products.
B. Background
Prior to 2006, the Department annually prepared an analysis of
pending and prospective rulemakings under its energy conservation
program for consumer products and its companion program for commercial
and industrial equipment under parts B and C of Title III of EPCA. DOE
used this analysis to develop priorities and propose schedules for all
rulemakings under these programs. In its priority-setting activities
beginning in fiscal year 2003, the Department discussed possible
expansion of the programs to include additional consumer products and
commercial and industrial equipment. However, with the passage of the
Energy Policy Act of 2005 (EPACT 2005), Public Law 109-58, several
additional products that the Department had been considering for
coverage (e.g., ceiling fans and torchieres) became covered products
with prescribed standards.
Since the passage of EPACT 2005, the Department has re-assessed its
rulemaking procedures and scheduling decisions. The Department held a
public meeting November 15, 2005, followed by a 30-day public comment
period, to obtain public input. After considering the public comments,
the Department released a five-year plan that describes how DOE will
address the appliance standards rulemaking backlog and meet all of the
statutory requirements established in EPCA, as amended, and EPACT 2005.
The plan is contained in the Report to Congress, which was released
January 31, 2006, and is posted on the DOE Web page at: http://www.eere.energy.gov/buildings/appliance_standards/2006_schedule_setting.html. The report focuses on how the Department will complete
rulemakings currently in process, catch up on a very large backlog of
overdue rulemakings, and meet all new rulemaking requirements contained
in EPACT 2005 on time. Those tasks are such a major undertaking that
the Department does not contemplate expanding the program to cover
additional consumer products or commercial equipment at this time.
Nonetheless, the Department is proceeding with this rulemaking because
it has invested substantial work effort that is now close to the point
of completion. This rulemaking also fills in a gap in DOE regulations
that must be filled before the Secretary may exercise statutory
authority in the future as scheduling, priorities, and available
resources permit to expand standards coverage to appropriate products.
Particularly, as energy efficient technologies advance in the future,
the results of this rulemaking may be used to implement the
Department's authority to consider whether any other products should be
classified as covered products.
As indicated above, a significant element of such assessment for
each of these products is whether its annual ``per-household'' energy
use is likely to exceed 100 kilowatt-hours. The Department can classify
a product as covered only if it determines that the product meets this
criterion. To address the criterion, the Department must define the
term ``household,'' and is
[[Page 26277]]
proposing such a definition in this notice. DOE would apply the
definition to any future evaluations of whether the Department can
classify other consumer products as covered products. In addition, the
Department would use the definition as a basis for determining whether
a product meets the per-household and aggregate-household energy-use
criteria for setting energy conservation standards for a product DOE
classifies as covered. (42 U.S.C. 6295(l))
C. Summary of Proposed Rule
The proposed rule defines ``household'' and three related terms.
Taken together, these definitions in essence provide that a household
is an individual or group that lives together in a housing unit that
they occupy separately from any other group or individual. The content
of these definitions is consistent with the legislative history of EPCA
and with dictionary definitions of ``household,'' and is essentially
the same as the relevant definitions that the DOE Energy Information
Administration (EIA) uses as a basis for its periodic Residential
Energy Consumption Surveys (RECS) of household energy use, which is
discussed in more detail below in section II., C. The proposed rule
also defines the term ``energy use of a type of consumer product which
is used by households,'' which is virtually identical to a term used in
section 322(b)(2)(A) of EPCA, 42 U.S.C. 6292(b)(2)(A), so as to make
clear the locations at which household energy consumption can occur and
that visitors to a household can contribute to such consumption.
II. Discussion
A. The Proposed Definitions
As discussed above, DOE is authorized to add products to its
program under EPCA, if the product is likely to exceed ``annual per-
household energy use'' of 100 kilowatt-hours pursuant to the
Department's definition of ``household.'' (42 U.S.C. 6292(a) and (b))
The Department is proposing a definition of ``household,'' and of
the related terms ``housing unit,'' ``separate living quarters,'' and
``group quarters.'' The definitions of these related terms serve to
clarify the meaning of ``household.'' ``Housing unit'' is defined
because the term is used in the definition of ``household,'' and
``separate living quarters'' and ``group quarters'' are defined because
they are used in the definition of ``housing unit.''
The core of the proposed rule is the definition of ``household'' as
an individual or group that resides in a particular housing unit. This
conforms to the general dictionary definition of the term. The proposed
rule, in turn, defines ``housing unit'' as ``a house, an apartment, a
group of rooms, or a single room occupied as separate living quarters,
but [that] does not include group quarters.'' ``Separate living
quarters'' is defined as a place where people live in a separate space
from others and to which they have access without going through the
living space of others, and ``group quarters'' is defined as living
quarters occupied by an institutional group of 10 or more unrelated
persons. The Department has incorporated the substance of the RECS
definitions of these last two terms to assure that ``household'' refers
to a group that consumes energy as a unit. See 2001 RECS Report at
http://www.eia.doe.gov/emeu/recs/glossary.html. The cut off of 10 or
more unrelated people would serve to distinguish a group that acts as a
unit from one that does not.
Under these proposed definitions, the Department intends to use a
broad range of data, including data generated by the RECS, in
determining whether products qualify for coverage and the development
of standards under EPCA. In gathering information as to the household
energy use of any particular product, DOE will use the best available
data for that product. When RECS data covers a product, its use will be
possible because the substance of the proposed definitions is
consistent with and quite similar to the corresponding EIA definitions.
See 2001 RECS Report at http://www.eia.doe.gov/emeu/recs/ glossary/
html. Moreover, DOE will generally prefer to use the RECS data because
generally it is the most comprehensive and best available source of
information on residential energy consumption. The RECS, however, will
likely not cover many of the products the Department is investigating.
By not adhering to all of the details of the definitions used in the
RECS, today's proposed definitions would allow the Department
sufficient flexibility to use other sources of information as well.
Finally, EPCA defines ``average annual per-household energy use''
for a type of product as being the ``estimated aggregate annual energy
use * * * of consumer products of such type which are used by
households in the United States, divided by the number of such
households which use [them].'' (42 U.S.C. 6292(b)(2)) The Department is
proposing to define ``energy use of a type of consumer product which is
used by households'' as meaning energy use by the product both within
the interior space of housing units occupied by households, as well as
on contiguous property used primarily by the household occupying the
housing unit. Thus, for example, where a product consumes energy in a
housing unit's back yard or outdoor pool or accessory building(s) or
structures, such energy use would be included in determining per-
household or aggregate-household energy use. This definition also makes
clear that household energy use includes all energy consumption, both
by members of each household and their visitors, at all housing units
occupied by each household.
B. Extent of Reliance on Definitions Used in the Department's
Residential Energy Consumption Survey
Since 1978, the EIA has periodically gathered information about
energy consumption in the residential sector by conducting a RECS, and
in 2004, EIA posted data on its Web site on the results of its 2001
RECS at http://www.eia.doe.gov/emeu/recs/ (2001 RECS Report). The RECS
provides information on the use of energy in residential housing units
in the United States. This information includes: The physical
characteristics of the housing units surveyed; the appliances in those
units, including space heating and cooling equipment; demographic
characteristics of the households; the types of fuels used; and other
information that relates to energy use. 2001 RECS Report at http://www.eia.doe.gov/emeu/recs/ contents.html.
Clearly, ``household'' energy consumption behavior is the focus of
the RECS. This behavior is a primary driver behind purchases and
consumption of energy in the residential setting. The RECS collects
information focused on the household, and the RECS Report provides data
on energy consumption and expenditures per household.
Today's proposed definitions contain the same concepts as the RECS
definitions (see 2001 RECS Report at http://www.eia.doe.gov/emeu/recs/glossary/html emeu/recs/
glossary/html), and this is appropriate for several reasons. First, as
a general matter, the RECS definitions appear to be reasonable and
logical constructions of the term ``household.'' In content, they are
very similar to definitions for household and related terms in the
Census Bureau's housing survey, e.g., Current Housing Reports, U.S.
Census Bureau, Pub. No. H150/01, American Housing Survey for the United
States:
[[Page 26278]]
2001 at Appendix A, A-9--A-11 (2002) (2002 Housing Survey Report).
Second, the RECS uses ``household'' and related terms for purposes very
similar to those for which DOE would use today's proposed definitions.
The proposed definitions would provide a basis on which the Department
could estimate the household energy use of particular products. The
RECS uses the terms for gathering and presenting precisely this type of
information, although it also collects information as to household
energy use generally. Finally, DOE has used RECS data in its
rulemakings concerning energy conservation standards, and intends to
use this data whenever possible to determine whether it can classify as
covered, and adopt standards for, consumer products not listed as
covered in EPCA. For example, DOE used RECS data in rulemakings
concerning efficiency standards for residential central air
conditioners and heat pumps, and for residential water heaters. 65 FR
59589, 59595, 59600 (October 5, 2000); 66 FR 4474, 4477, 4478 (January
17, 2001).
As indicated above, today's proposed rule would incorporate from
the RECS definitions the concept that a group of 10 or more unrelated
people, even if living in a dwelling that would otherwise be a single
housing unit, would not be a ``household'' for purposes of determining
per-household energy consumption. The Census Bureau's Housing Survey
uses a similar approach: It does not treat as a household a group that
occupies living quarters inhabited by nine or more unrelated persons.
2001 Housing Survey Report, App. A at A-10. Although DOE might possibly
use a different numerical cut off than the RECS uses, or a more
subjective approach to describe groups that occupy a dwelling and act
as a unit, the Department believes that the approach in the RECS is
reasonable and wants to be able to rely on the RECS data to the
greatest extent possible to evaluate household energy consumption for
products it seeks to cover. DOE emphasizes that it is proposing this
classification only for purposes of evaluating household energy
consumption under EPCA. The proposed rule's definition of ``household''
is not intended in any way to address or make a judgment on the
desirability of households of any particular size or composition.
Although today's proposed definitions are essentially the same in
substance as the definitions the RECS uses for ``household'' and
related terms, the proposed language is much less detailed, and differs
from the language of the RECS definitions in a number of respects. The
RECS definitions contain language specifically geared to EIA's purposes
that is unnecessary for this rulemaking. Regarding the level of detail,
most significant is that the RECS definition of ``household''
identifies various specific categories of people who would or would not
be considered household members, whereas today's proposed rule does not
identify such categories. The RECS gathers information as to the
characteristics of the households it surveys, but DOE will not use
today's proposed definitions as a basis for obtaining such information.
Therefore, the RECS definition needs to delineate who is and is not
within a household with much greater precision than today's proposed
definition.
In addition, today's proposed definitions contain many technical
and editorial changes to the RECS definitions. For example, the RECS
definition of ``household'' refers to a person's residence ``at the
time of the first field contact'' and to comparison of the numbers of
households and of occupied housing units ``in the RECS.'' 2001 RECS
Report at http://www.eia.doe.gov/emeu/recs/glossary.html. Such
language does not belong in today's proposed definition of household,
which would be used to provide a metric for assessing the energy use of
a product.
Furthermore, because EIA did not develop the RECS definitions for
inclusion in regulations, they are not in the form, and sometimes lack
the precision, needed in a regulation. For example, consecutive
sentences of the RECS definition of ``household'' describe members of
the household as persons who have their ``usual or permanent place of
residence'' in the same housing unit, who ``live in the housing unit,''
and who ``usually live in the household.'' 2001 RECS Report at http://www.eia.doe.gov/emeu/recs/glossary.html. These different descriptions
create the potential for misinterpretation, and use of the word
``household'' within the definition of that term makes the definition
circular. In today's proposed definitions, the Department has converted
the EIA definitions into language suitable for use as a regulation,
adhering to the concepts in these definitions while attempting to
reduce the potential for misinterpretation, vagueness, and conflicts,
as well as unnecessary wording.
Finally, today's proposed definition of ``energy use of a type of
consumer product which is used by households'' reflects how EIA
conducts the RECS and uses its definitions of household and related
terms, although in one significant respect it departs from the RECS
approach. First, the RECS concern all energy consumption at the housing
unit where the household is located, i.e., consumption both by members
of a household and by visitors. 2001 RECS Report at http://www.eia.doe.gov/emeu/recs/recs2001/questionaire.pdf. The language of
the RECS definitions of household and related terms, however, does not
clearly provide that household energy consumption includes consumption
by non-members of the household. The Department is proposing to define
``energy use of a type of consumer product which is used by
households'' so as to clearly include such energy consumption.
Second, the RECS often addresses energy consumption on the grounds
and in buildings belonging to the housing unit in which the household
members reside, although its definition of ``housing unit'' does not
explicitly include such areas. For example, the 2001 RECS addressed
swimming pool heaters, well water pumps, and outdoor gas lighting (2001
RECS Report at Table HC5-4a), and previous surveys have addressed
products such as electric lawn mowers. Today's proposed definition of
``energy use of a type of consumer product which is used by
households'' provides in essence that energy consumption on the grounds
of housing units occupied by the household, and in structures on those
grounds, is part of household energy consumption.
Third, the RECS concerns energy consumption only at housing units
that households occupy as primary residences. 2001 RECS Report at
http://www.eia.doe.gov/emeu/recs/ recs2001/append--a.html and http://www.eia.doe.gov/emeu/recs/recs2001/questionaire.pdf. Thus, the RECS
does not include information as to household energy use in secondary
residences. The EIA uses this approach for several reasons. First, the
amount of energy consumed in secondary residences, although not
negligible, is not large. Second, by covering a narrower universe--
primary residences rather than all residences occupied by households--
the sample of households from which the RECS gathers information will
provide stronger support for the conclusions reached in the RECS as to
household energy use. And third, this approach parallels the Census
Bureau's definition of ``household'' and its approach to gathering
information in its housing survey. EPCA's criteria for determining
whether a consumer product qualifies for coverage and the adoption of
standards, however, do not limit per-
[[Page 26279]]
household or aggregate household energy use to energy use in the
primary residences of households. (42 U.S.C. 6292(b) and 6295(l))
Furthermore, the Department sees no reason to adopt such a limitation
in evaluating products for coverage and standards. Therefore, today's
proposed definitions provide in effect that household energy use by a
product includes all energy that households consume in using that
product, at all housing units they occupy, regardless of whether the
housing units are primary residences. This would permit the Department
to use data as to household energy consumption that includes both
primary and secondary residences, if such data is available. When such
data is not available, the Department would use data that includes only
primary residences, such as the RECS data. Energy consumption at
primary residences will always be at least a constituent element of
total household energy use for consumer products, since for all or
virtually all such products it appears to represent the most
significant portion of household energy use. Thus, for products for
which the available data includes energy use only at primary
residences, such as the RECS data, the Department's use of such data as
a basis for determining whether the product qualifies for coverage and
the adoption of standards would provide an accurate but conservative
estimate of per-household and aggregate household energy use under
EPCA.
C. Conclusion
In sum, the Department proposes to adopt definitions of
``household'' and related terms, which it would use to determine
whether products not currently covered under EPCA meet the EPCA
criteria for classification as ``covered products.'' The Department
would also use these definitions to determine whether, once a product
has been so classified, it meets the additional per-household and
aggregate household energy use criteria for setting energy conservation
standards under EPCA for a product DOE classifies as covered. EPCA
directs DOE to define ``household,'' and the Department believes the
proposed definitions are reasonable and consistent with data the
Department intends to use in making its determinations on household
energy consumption.
III. Procedural Requirements
A. Review Under Executive Order 12866
The Office of Information and Regulatory Affairs of the Office of
Management and Budget (OMB) has determined that today's regulatory
action is not a ``significant regulatory action'' under Executive Order
12866, ``Regulatory Planning and Review,'' 58 FR 51735 (October 4,
1993). Accordingly, this action was not subject to review under the
Executive Order.
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 draft rules on small entities are properly
considered during the rulemaking process (68 FR 7990). DOE has made
them available on the Office of General Counsel's Web site: http://www.gc.doe.gov.
DOE has reviewed today's proposed rule under the provisions of the
Regulatory Flexibility Act and the procedures and policies published on
February 19, 2003. Today's proposed rule neither classifies any product
as covered under the Act, nor includes any requirement for any product.
Thus, the proposed definitions would not have any economic impact on
any business or entity. On the basis of the foregoing, DOE certifies
that the proposed rule, if adopted as a final rule, will not impose a
significant economic impact on a substantial number of small entities.
Accordingly, DOE has not prepared a regulatory flexibility analysis for
this rulemaking. DOE will transmit the certification and supporting
statement of factual basis to the Chief Counsel for Advocacy of the
Small Business Administration for review pursuant to 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act
The Department reviewed today's proposed rule under the Paperwork
Reduction Act. (44 U.S.C. 3501 et seq.) Today's proposed rule concerns
an element of the criteria the Department must use to determine whether
it can regulate and adopt energy conservation standards for consumer
products not already covered under EPCA. It would not require any
additional reports or record-keeping. Accordingly, this action is not
subject to review under the Paperwork Reduction Act.
D. Review Under the National Environmental Policy Act
In this rulemaking, DOE proposes to adopt definitions that would
provide a basis for the Department to determine whether products not
currently covered by EPCA meet the requirements for DOE to classify a
product as a ``covered product'' under the Act, and to establish energy
conservation requirements for the product. The definitions will not
affect the quality or distribution of energy and, therefore, will not
result in any environmental impacts. DOE, therefore, determined that
this rule falls into a class of actions that are categorically excluded
from review under the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and the Department's implementing regulations at
10 CFR part 1021. More specifically, today's rule is covered by the
Categorical Exclusion in paragraph A5 to subpart D, 10 CFR part 1021
(rulemaking that amends an existing rule without changing the
environmental effect of the rule being amended). Accordingly, neither
an environmental assessment nor an environmental impact statement is
required.
E. 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 13132 requires agencies to examine
the constitutional and statutory authority supporting any action that
would limit the policymaking discretion of the States and 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).
The proposed rule published today would supply an element of the
criteria the Department must use to determine whether it can regulate
and adopt energy conservation standards for consumer products not
already covered under EPCA. This proposed rule will not directly affect
state or local governments. However, it might ultimately have an
indirect impact on
[[Page 26280]]
such governments because the rule could affect which products the
Department covers and adopts standards for, under EPCA. If the
Department ultimately decides to extend the coverage of its energy
efficiency program to additional consumer products, the future
application of coverage criteria could pre-empt state and local
requirements for those newly covered products. Such impacts would not
be the result of this proposal but would be the result of later
notice--and--comment rulemakings. Thus today's rule, by itself, would
not pre-empt any state or local action.
For these reasons, the Department has determined that today's
proposed rule does not preempt State law and would 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. Therefore,
no further action is required by Executive Order 13132.
F. 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 (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 proposed rule meets the relevant standards of
Executive Order 12988.
G. Review Under Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) (UMRA) requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and tribal governments and the
private sector. With respect to a proposed regulatory action that may
result in the expenditure by State, local and tribal governments, in
the aggregate, or by the private sector of $100 million or more
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish estimates of the resulting costs, benefits,
and other effects on the national economy. (2 U.S.C. 1532(a),(b)) 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 proposed rule will not directly affect any state, local or
tribal government, or the private sector. It might ultimately have an
indirect effect on state or local governments, and the private sector,
since it could affect which products the Department covers and adopts
standards for under EPCA. The Department's coverage and adoption of
standards for products could pre-empt state and local requirements for
those products, and would affect companies that manufacture and sell
them. Such impacts will not result from adoption of today's proposed
rule, however, and the rule would impose no mandates of any kind.
For these reasons, we have determined that the action proposed
today does not provide for any Federal mandate that may result in
estimated costs of $100 million or more. Therefore, the UMRA does not
require a cost benefit analysis of today's proposal.
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. Today's proposed rule would not have any impact on the
autonomy or the 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
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 proposed
regulation 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
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 under general guidelines issued by OMB. The OMB guidelines were
published in 67 FR 8452 (February 22, 2002), and the DOE guidelines
were published in 67 FR 62446 (October 7, 2002). The Department has
reviewed today's notice 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
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 promulgates 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
Administration 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,
[[Page 26281]]
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use. Today's proposed rule
is not a significant regulatory action under Executive Order 12866.
Moreover, it would not have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, it is not significant energy
action, and DOE has not prepared a Statement of Energy Effects.
IV. Public Participation
A. Determination Not To Hold Public Meeting
Under 42 U.S.C. 7191(c)(1), the Secretary may determine that ``no
substantial issue of fact or law exists and that such rule * * * is
unlikely to have a substantial impact on the Nation's economy or large
numbers of individuals or businesses,'' and that ``such proposed rule *
* * or order may be promulgated in accordance with section 553 of title
5.'' Section 553(c) of title 5 permits the agency to ``give interested
persons an opportunity to participate in the rulemaking through
submission of written data, views, or arguments with or without
opportunity for oral presentation.'' The Department has determined that
a 45-day public comment period for written comments is sufficient and
that a public meeting for oral presentation is unnecessary for this
rulemaking. Since this rulemaking does not raise any issues of fact or
law and merely provides a definition necessary for the Secretary to
carry out authority already held by the Secretary under EPCA, this
rulemaking is unlikely to have a substantial impact on the Nation's
economy or large numbers of individuals or businesses.
B. Submission of Written Comments
The Department will accept comments, data, and information
regarding the proposed rule no later than the date provided at the
beginning of this notice of proposed rulemaking. Please submit
comments, data, and information electronically. Send them to the
following e-mail address: [email protected]">coverageconsumer[email protected]. Submit
electronic comments in WordPerfect, Microsoft Word, PDF, or text
(ASCII) file format and avoid the use of special characters or any form
of encryption. Comments in electronic format should be identified by
the docket number EE-RM-03-630 and/or RIN number 1904-AB52, and
wherever possible carry the electronic signature of the author. Absent
an electronic signature, comments submitted electronically must be
followed and authenticated by submitting the signed original paper
document. No telefacsimiles (faxes) will be accepted.
According to 10 CFR 1004.11, any person submitting information that
he or she believes to be confidential and exempt by law from public
disclosure should submit two copies: One copy of the document including
all the information believed to be confidential, and one copy of the
document with the information believed to be confidential deleted. The
Department of Energy will make its own determination about the
confidential status of the information and treat it according to its
determination.
Factors of interest to the Department when evaluating requests to
treat submitted information as confidential include: (1) A description
of the items; (2) whether and why such items are customarily treated as
confidential within the industry; (3) whether the information is
generally known by or available from other sources; (4) whether the
information has previously been made available to others without
obligation concerning its confidentiality; (5) an explanation of the
competitive injury to the submitting person which would result from
public disclosure; (6) when such information might lose its
confidential character due to the passage of time; and (7) why
disclosure of the information would be contrary to the public interest.
V. Approval by the Office of the Secretary
The Secretary of Energy has approved issuance of this notice of
proposed rulemaking.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Energy conservation,
Household appliances.
Issued in Washington, DC, on April 17, 2006.
Alexander A. Karsner,
Assistant Secretary, Energy Efficiency and Renewable Energy.
For the reasons set forth in the preamble, part 430 of Chapter II
of Title 10, Code of Federal Regulations, is proposed to be amended as
set forth below.
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
1. The authority citation for part 430 continues to read as
follows:
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
2. Section 430.2 is amended by adding definitions for ``energy use
of a type of consumer product which is used by households,'' and
``household,'' in alphabetical order to read as follows:
Sec. 430.2 Definitions.
* * * * *
Energy use of a type of consumer product which is used by
households means the energy consumed by such product within housing
units occupied by households (such as energy for space heating and
cooling, water heating, the operation of appliances, or other
activities of the households), and includes energy consumed on any
property that is contiguous with a housing unit and that is used
primarily by the household occupying the housing unit (such as energy
for exterior lights or heating a pool).
* * * * *
Household means an entity consisting of either an individual, a
family, or a group of unrelated individuals, who reside in a particular
housing unit. For the purpose of this definition:
(1) Group quarters means living quarters that are occupied by an
institutional group of 10 or more unrelated persons, such as a nursing
home, military barracks, halfway house, college dormitory, fraternity
or sorority house, convent, shelter, jail or correctional institution.
(2) Housing unit means a house, an apartment, a group of rooms, or
a single room occupied as separate living quarters, but does not
include group quarters.
(3) Separate living quarters means living quarters:
(i) To which the occupants have access either:
(A) Directly from outside of the building, or
(B) Through a common hall that is accessible to other living
quarters and that does not go through someone else=s living quarters,
and
(ii) Occupied by one or more persons who live and eat separately
from occupant(s) of other living quarters, if any, in the same
building.
* * * * *
[FR Doc. 06-4195 Filed 5-3-06; 8:45 am]
BILLING CODE 6450-01-P