Energy Conservation Program for Consumer Products: Classifying Products as Covered Products, 26275-26281 [06-4195]

Agencies

• DEPARTMENT OF ENERGY
• Office of Energy Efficiency and Renewable Energy
• Energy Efficiency and Renewable Energy Office

[Federal Register Volume 71, Number 86 (Thursday, May 4, 2006)]
[Proposed Rules]
[Pages 26275-26281]
From the Federal Register Online via the Government Printing 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: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: coverageconsumerproducts @ee.doe.gov. 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: linda.graves@ee.doe.gov, 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: Francine.Pinto@hq.doe.gov or 
Thomas.DePriest@hq.doe.gov.

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: https://
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 
https://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 https://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 https://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 https://
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 https://www.eia.doe.gov/ 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 https://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 https://
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 https://
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 
https://www.eia.doe.gov/emeu/recs/recs2001/append_a.html and https://
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: https://
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 https://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: coverageconsumer products@ee.doe.gov. 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