Energy Conservation Program: Establishment of Procedures for Requests for Correction of Errors in Rules, 26998-27006 [2016-03190]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 81, Number 87 (Thursday, May 5, 2016)]
[Rules and Regulations]
[Pages 26998-27006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03190]


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DEPARTMENT OF ENERGY

10 CFR Parts 430 and 431

RIN 1904-AD63


Energy Conservation Program: Establishment of Procedures for 
Requests for Correction of Errors in Rules

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (``DOE'' or the ``Department'') 
is establishing a procedure through which an interested party can, 
within a 30-day period after DOE posts a rule establishing or amending 
an energy conservation standard, identify a possible error in such a 
rule and request that DOE correct the error before the rule is 
published in the Federal Register.

DATES: The effective date of this rule is June 6, 2016.

ADDRESSES: See the companion document titled ``Notice of Opportunity to 
Submit a Petition to Amend the Rule Establishing Procedures for 
Requests for Correction of Errors in Rules'' published elsewhere in 
this issue of the Federal Register for addresses to submit a petition 
to amend, or a comment on a petition to amend, this rule.

FOR FURTHER INFORMATION CONTACT: Mr. John Cymbalsky, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-5B, 1000 Independence Avenue SW., Washington, 
DC 20585-0121. Telephone: (202) 287-1692 or John.Cymbalsky@ee.doe.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Authority and Background
II. Summary of the Rule
III. Paragraph-by-Paragraph Analysis
IV. Procedural Issues and Regulatory Review

I. Authority and Background

    Title III of the Energy Policy and Conservation Act of 1975, as 
amended (``EPCA'' or, in context, ``the Act'') establishes a program 
designed to improve the energy efficiency of consumer products (other 
than automobiles) and of certain industrial equipment. Pursuant to 
EPCA, the Department sets energy conservation standards and other 
requirements for covered products and equipment; prescribes protocols 
to test products and equipment against the standards; requires labeling 
of covered products and equipment; and establishes procedural 
mechanisms such as certification programs and enforcement procedures. 
See 42 U.S.C. 6291, et seq. This rule establishes error-correction 
procedures that DOE will use in the course of prescribing energy 
conservation standards under EPCA. It also interprets several 
provisions of EPCA that may be relevant to the functioning of those 
procedures.
    One of EPCA's many purposes is to improve energy efficiency for a 
variety of major consumer products and industrial equipment. To achieve 
this purpose, the Act directs the Department both to undertake certain 
rulemakings to establish or revise energy conservation standards and to 
consider amending such standards on a periodic basis--for many products 
within six years of issuance of a prior final rule. 42 U.S.C. 
6295(m)(1). The Act contemplates that such a rulemaking or periodic 
review will result in a new or amended standard if the Department 
concludes that such standard would be technologically feasible and

[[Page 26999]]

economically justified and would result in significant conservation of 
energy. The Act also bars DOE from ``prescrib[ing] any amended standard 
which increases the maximum allowable energy use . . . or decreases the 
minimum required energy efficiency'' of a covered product. 42 U.S.C. 
6295(o)(1). This prohibition against ``backsliding,'' together with the 
periodic reviews just described, has the effect over the long term of 
gradually increasing the energy efficiency of regulated products and 
equipment.
    The process of developing an amendment to an energy conservation 
standard ordinarily involves extensive technical analyses and 
voluminous amounts of data. The Department weighs a range of competing 
technological and economic considerations, such as the feasibility and 
cost of various energy-saving technologies, the effects of implementing 
those technologies in products on the market, and the need for national 
energy and water conservation. It must make predictive judgments 
regarding the expected effect of its standards over decades, in part 
because compliance with a standard is usually required a few years out 
from the rulemaking and in part because many products have decades of 
useful life. Meanwhile, the drafting of an energy conservation standard 
on its own (separate from the deliberation involved in selecting the 
standard) involves substantial technical analysis. In short, an energy 
conservation standards rulemaking is usually a highly complicated 
undertaking.
    In light of all the considerations described in this preamble, DOE 
also recognizes that, given the complexity of these rules, it is 
conceivable that a standards regulation, as issued, may occasionally 
contain an error. For example, an accidental transposition of digits 
could result in a standard that is inconsistent with the Department's 
analysis. Often, it will be evident from the full context what standard 
DOE intended to set, but the text of a regulation, even if erroneous, 
has legal effect. Moreover, should such an error go uncorrected for too 
long, there is a risk that the Department would be unable to undo it 
because of the limitations on reducing the stringency of its standards. 
Meanwhile the relevant industries would face uncertainty about the 
standard, as well as some difficult choices--whether to comply with it, 
hope that the error is addressed sometime later, or challenge it in 
court. The process established by this document is meant to avoid 
undesirable outcomes like these by providing interested parties with an 
opportunity to timely point out errors to DOE and request that DOE 
correct them.

II. Summary of the Rule

    This rule establishes DOE's procedures for accepting error-
correction requests for its energy conservation standards rules. 
Specifically, after issuing an energy conservation standards rule 
subject to this process, the Department will not publish that rule in 
the Federal Register for 30 days. This 30-day period begins upon the 
posting of the rule on a publicly-accessible Web site. During the 30-
day window, interested parties can review it, including the regulatory 
text which is to be placed in the Code of Federal Regulations. If, 
during this period, a party (as defined in this rule) identifies an 
error in the regulatory text, that party can submit a request that DOE 
correct the error. An error-correction request must identify the 
claimed error, explain how the record demonstrates the regulatory text 
to be erroneous, and state what the corrected version should be.\1\
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    \1\ This error-correction process would not supplant or 
otherwise replace the error correction process established under 1 
CFR Chapter 1 applicable generally to all documents published in the 
Federal Register.
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    The error-correction process is not an opportunity to submit new 
evidence or comment on the rule, seek to reopen issues that DOE has 
already addressed or argue for policy choices different from those 
reflected in the final rule. DOE will not accept new evidence included 
in or with error-correction requests, and a submitter must rest its 
explanation solely on the materials already in the record. The 
Department posts a rule with the appropriate official's signature only 
after concluding its deliberations and reaching decisions on the 
relevant factual determinations and policy choices. Consistent with 
this approach, the Department considers the record with respect to a 
rule subject to the error correction process closed upon posting of the 
rule.
    After reviewing error-correction requests meeting the criteria set 
out in this rule, the Department will have a range of options with 
respect to a rule. If it concludes that the claims of error are not 
valid, and if it has identified no errors on its own, DOE will proceed 
to submit the rule for publication in the Federal Register in the same 
form it was previously posted. By doing so, the Department will 
effectively be rejecting any error-correction requests it has received; 
DOE will ordinarily not respond directly to a requester or provide 
additional notice regarding the request. If, on the other hand, DOE 
identifies an error in a rule, DOE can correct the error.
    As noted in this preamble, in some circumstances, an error may lead 
the standard contained in DOE's regulation, as originally posted, to 
require higher energy efficiency or lower energy use than the 
Department intended based on the record and its deliberations. 
Correcting such an error through the process established by this rule 
would not be inconsistent with section 325(o)(1) (or its analogs 
applicable to certain types of product or equipment). The error-
correction process occurs during a window between DOE's posting of a 
rule and publication of the rule in the Federal Register. As discussed 
more fully below, DOE interprets section 325(o)(1) and its analogs to 
permit corrections of a rule that has not yet been published in the 
Federal Register.

III. Paragraph-by-Paragraph Analysis

    The following discussion describes the provisions of this rule in 
detail, so as to explain further how the error-correction process will 
work.

Sec.  430.5(a): Scope and Purpose

    This section describes the purpose of this rule. Consistent with 
the discussion in this preamble, the rule describes procedures through 
which the Department will accept and consider submissions regarding 
possible errors in its standards rules. The section also states the 
scope of the rule. DOE will apply the procedures described in the rule 
to those rulemakings establishing or amending energy conservation 
standards under EPCA. ``Energy conservation standard'' is a term 
defined in EPCA, although it has a slightly different definition for 
consumer products and commercial equipment. With respect to the former, 
an ``energy conservation standard'' is generally a performance standard 
that prescribes a minimum efficiency level or maximum quantity of 
energy usage for a covered product or, in certain instances, a design 
requirement. See 42 U.S.C. 6291(6).
    Similarly, for commercial equipment, an ``energy conservation 
standard'' is a performance standard prescribing a minimum level of 
energy efficiency or a maximum quantity of energy use for the covered 
equipment at issue or a design requirement. See 42 U.S.C. 6311(18).
    When the Department posts a rule establishing or amending an energy 
conservation standard, per the statutory definition, for a given type 
of product or equipment, the Department will engage

[[Page 27000]]

in the error-correction process established by this rule.
    DOE undertakes a variety of other rulemakings under the Act, such 
as rules to set test procedures, requirements for labeling or 
certification, and procedures for enforcement. DOE will not routinely 
utilize this error-correction process for such rules. The Department 
recognizes the importance of correcting errors in any of its rules, and 
consistent with the principles of good government, it intends to be 
responsive to input from members of the public that point out such 
errors. However, the combination of features described in this 
preamble--the regular occurrence of high complexity, potentially large 
significance of the rules, and the possibility that uncorrected errors 
will have unavoidable long-term consequences--is specific, for rules 
under the Act, to energy conservation standards. Therefore, the 
Department considers it appropriate to implement a routine error-
correction mechanism only for such rules.
    This rule also excludes from its scope any energy conservation 
standards that DOE sets by issuing direct final rules pursuant to 
section 325(p)(4) (42 U.S.C. 6295(p)(4)) of EPCA. Section 325(p)(4) 
allows the Department to set an energy conservation standard, in some 
circumstances, by issuing a direct final rule. Before doing so, DOE 
must receive ``a statement that is submitted jointly by interested 
persons that are fairly representative of relevant points of view,'' 
and the Department must determine that the recommended standard is ``in 
accordance with'' either section 325(o) or section 342(a)(6)(B) (i.e., 
42 U.S.C. 6313(a)(6)(B)) as appropriate depending on the product or 
equipment at issue. 42 U.S.C. 6295(p)(4). Together with issuing a 
direct final rule, DOE must publish a notice of proposed rulemaking 
proposing a standard identical to that established in the direct final 
rule, and DOE must allow a period of at least 110 days for public 
comment on the direct final rule. See 42 U.S.C. 6295(p)(4)(B). If the 
Department receives one or more adverse comments related to the rule 
and concludes that the comments ``may provide a reasonable basis for 
withdrawing the direct final rule,'' the Department can withdraw the 
direct final rule and proceed with the proposed rule. A withdrawn rule 
``shall not be considered to be a final rule for purposes of [section 
325(o)].'' 42 U.S.C. 6295(p)(4)(C)(iii).
    DOE notes that, as a practical matter, the mechanisms of the direct 
final rule process provide an opportunity for correcting errors that is 
at least as effective as what this rule achieves. If a direct final 
rule contains an error, the public has an opportunity to identify that 
error through the comment process provided by statute and any error 
that a person would have identified during the 30-day window set by 
this rule could also be identified in the 110-day comment period 
required by EPCA. See 42 U.S.C. 6295(p)(4)(B). The Department's options 
for responding to a claim of error in a direct final rule are 
essentially equivalent to what this rule provides for other standards 
rules. Absent an error (and if there is no other reason to withdraw the 
rule), the Department can let a direct final rule stand as-is. Should 
there be an error, DOE can withdraw the direct final rule. It can then 
issue a final rule that is based on the notice of proposed rulemaking 
and avoid the error.
    Moreover, withdrawing a direct final rule and replacing it with a 
final rule based on the associated proposal would not violate section 
325(o) even if the change resulted in a lower standard. The direct 
final rule procedure enacted by Congress is a unique one that provides 
DOE with the authority to withdraw a direct final rule when certain 
conditions are met. See 42 U.S.C. 6295(p)(4)(C). Accordingly, that 
specific procedure already provides a means for DOE to address an error 
if one is identified.
    In sum, the statutory mechanisms for direct final rules permit the 
correction of errors in a manner similar to what this rule lays out for 
other EPCA standards rules. Accordingly, the Department considers it 
unnecessary to apply this particular error-correction process to direct 
final rules.

Sec.  430.5(b): Definitions

    This paragraph sets forth several definitions that clarify the 
meaning of this section and the application of the error-correction 
process.
    DOE is defining the term, ``Secretary,'' as referring to the 
Secretary of Energy or the Secretary's delegate.
    The term, ``Act,'' under this rule means the Energy Policy and 
Conservation Act, as amended.
    The term, ``Error'' for purposes of this rule is defined as an 
aspect of the regulatory text of a rule that is inconsistent with what 
the Secretary intended regarding the rule at the time of posting. The 
``regulatory text,'' for these purposes, means the material that is to 
be placed in the Code of Federal Regulations (``CFR''), together with 
the amendatory instructions by which the rule communicates what should 
go in the CFR. In most cases, the Department encapsulates everything 
about a rule that is legally binding by setting forth specific text in 
the CFR. The point of the error-correction process is to avoid the 
harmful consequences of errors in that legally binding material. Errors 
in explanatory material or interpretive matter in the preamble of a 
rule may be important, but they can ordinarily be corrected without use 
of a procedure like the one established by this rule (e.g., issuing a 
correction notice to clarify or otherwise resolve an error without the 
need for notice and comment.)
    The definition provides illustrative examples of mistakes that 
might produce Errors. For example, a typographical mistake might cause 
the text of a regulation to be incorrect; suppose, for example, the 
text of the regulation stated a party has 50 days to submit an error-
correction request, even though the Department has made clear in the 
preamble that it intends to allow 30 days. As a second example, a 
calculation mistake might cause the numerical value of a standard to 
differ from what DOE's technical analyses would justify. The 
calculations involved in deriving a standard are complex, which could 
result in an error that causes the regulatory text to codify a standard 
different from what DOE described in its preamble. As a third example, 
an amendment to the relevant portions of the regulations might renumber 
them, but DOE might overlook a cross-reference in another portion of 
its regulations, which would then refer to the wrong formula. These 
examples--and those detailed in the regulatory text--are not meant to 
be exhaustive but highlight two common features: (1) The regulatory 
text departs from what DOE intended it to be and (2) the rulemaking 
record reveals what DOE intended. These are the sorts of problems that 
the Department seeks to offer the opportunity to correct through this 
rule.
    The term, ``Party,'' means a person that has participated in a 
rulemaking by submitting timely comments during the rulemaking or by 
providing substantive input during a public meeting regarding the 
rulemaking.
    This definition is relevant because, as discussed in this preamble, 
the Department will accept requests for error-correction under this 
rule only from a person that is a ``party'' to the rulemaking 
proceeding in accordance with this definition. The error-correction 
process is intended to be rapid and streamlined. By pausing to receive 
suggestions of error, DOE will be delaying the eventual benefits to be 
produced by an amended standard.

[[Page 27001]]

Accordingly, the Department is setting the period for error submissions 
at 30 calendar days.
    In furtherance of expeditious review, these requests must be 
sufficiently detailed to readily identify and resolve the error. In 
DOE's view, those persons who actively participated during the 
rulemaking process by providing the agency with substantive feedback 
regarding its proposal and analyses are in the best position to readily 
and quickly identify errors that this rule seeks to address in a timely 
manner. The complexity and comprehensive nature of these analyses also 
make it more likely that active participants during the rulemaking 
proceeding would have the requisite foundation to be able to assist DOE 
with identifying errors and accompanying solutions. Without this 
procedural limit, DOE's review of error requests would likely be 
hampered by overly broad (or otherwise inaccurate) submissions from 
non-party persons that would hinder the agency's ability to 
expeditiously address meritorious claims identifying erroneous 
regulatory text. For these reasons, in DOE's view, it is appropriate to 
accept submissions only from those persons that have engaged in the 
rulemaking and are already familiar with the record.
    The principal means for participating in a rulemaking proceeding is 
by submitting written comments in response to a notice. Many of DOE's 
rulemakings to establish or amend its energy conservation standards 
involve several rounds of public comment, such as notices of proposed 
rulemaking and supplemental notices of proposed rulemaking. The 
Department also occasionally publishes notices of data availability 
through which it solicits comment on its technical analyses, as well as 
requests for information in which DOE solicits information from the 
public regarding particular issues. All of these procedures involve the 
substance of a rule under consideration, and the Department accordingly 
considers comment on any of them to be sufficient participation to 
qualify a person as a party. ``Comment,'' for these purposes, also 
includes ex parte submissions, which often represent as much engagement 
with the issues of a rulemaking as do ordinary comment filings. 
Similarly, the Department seeks public input by hosting public meetings 
(both in person and online through webinars), at which it presents some 
substantive information on a given proposed rule and permits 
participants to speak. This form of participation can also qualify a 
person as a party. (The definition of ``party'' requires ``substantive 
input'' at a public meeting. DOE does not intend to judge the 
substantiality of each participant's statements at a public meeting. By 
``substantive input,'' the Department means simply to exclude merely 
procedural statements such as a participant's identifying himself or 
herself for the record.)
    It bears emphasis, however, that an untimely or improperly 
submitted comment--including an ex parte submission made after the 
close of the relevant comment period--will not qualify the submitter as 
a ``party'' for purposes of this rule. While a late-filed comment may 
address substantive issues raised as part of the relevant energy 
conservation standards rulemaking, DOE is not obligated to consider 
late comments when reaching its decisions. For the Department to engage 
in a case-by-case assessment of whether a given person did in fact 
submit a comment would be inconsistent with the streamlined nature of 
the error-correction process. Accordingly, for the sake of 
administrative simplicity, DOE will not entertain an error-correction 
request from a person whose only participation in the rulemaking was an 
untimely or improper submission.
    Lastly, for purposes of this error-correction process, DOE is 
defining a ``rule'' as a rule establishing or amending an energy 
conservation standard under the Act. DOE will not apply this rule's 
error-correction process for documents such as general statements of 
policy, guidance documents, and interpretive guidelines.

Sec.  430.5(c): Posting of Rules

    This section describes the beginning of the error-correction 
process. At the outset, DOE will post a rule bearing the signature of 
an appropriate official of DOE on a publicly-accessible Web site. The 
record of the rulemaking is closed, and the Department has concluded 
its deliberations.
    However, the Department will not publish the rule in the Federal 
Register for 30 calendar days. This period of time will allow the 
public an opportunity to review the rule in order to identify any 
potential errors and submit a request to DOE to correct such errors. 
DOE recognizes that it has an obligation under the Administrative 
Procedure Act to publish a ``rule,'' as defined in this part, in the 
Federal Register. The time for error-correction contemplated by this 
rule will not be a departure from that obligation. The Administrative 
Procedure Act does not specify that publication in the Federal Register 
must occur at a particular point following a specified period of time 
after posting. Meanwhile, as discussed in this preamble, and as is 
currently the case, no energy conservation standards rule will be 
effective for some period of time after it has been published in the 
Federal Register, and the start of the lead-time provided to 
manufacturers to comply with the standards will begin at publication in 
the Federal Register. Consequently, the delay in publication in the 
Federal Register will comply with the Administrative Procedure Act and 
will not cause prejudice to any interested parties.

Sec.  430.5(d): Requests for Correction

    This section explains how to submit a request that DOE correct an 
error in a rule and describes what a request must contain.
    A request must be submitted within 30 calendar days of the posting 
of the rule. As discussed in this preamble, the error-correction 
process is meant to be rapid and streamlined. In undertaking the 
procedure, DOE must balance the value of being able to correct errors 
in its regulations against the cost of delay (e.g., delayed energy 
savings). The Department believes 30 days should be enough time for 
persons already familiar with a rulemaking to review the text of the 
regulation being adopted and identify any errors. In light of that 
assessment and bearing in mind the cost of delay, a longer period would 
be inappropriate.
    A request must identify an Error, as that term is defined in this 
rule. A request must identify the claimed Error with particularity by 
stating what text is erroneous and providing a corrected substitute. 
Because the error-correction process is focused on the regulatory text, 
an Error will necessarily involve some piece of text that should be 
changed. DOE expects a party requesting a change to identify 
specifically what text is mistaken and why, as well as how DOE should 
change it.
    Consistent with the definition of Error, the error-correction 
process is not an opportunity to dispute the Department's 
determinations or policy choices. An energy conservation standards 
rulemaking is usually a lengthy process, in which the Department 
provides repeated indications of its proposals, stakeholders have 
multiple opportunities to provide input, and the Department engages in 
extensive deliberation. To achieve the energy conservation goals of the 
Act, as well as to minimize uncertainty for industry and consumers, it 
is important that the issues in a rulemaking come to a

[[Page 27002]]

resolution. The error-correction process should not undermine the 
stability of DOE's already well-established energy conservation 
standards-setting process, because it will simply ensure that the 
regulatory text accurately reflects the determinations that DOE has 
already reached. Accordingly, an error-correction request must identify 
how the regulatory text departs from DOE's decision, rather than 
criticizing it on the requester's own grounds or reviving issues from 
comments previously raised and addressed.
    As noted, for the sorts of errors for which this process is 
appropriate, the rulemaking record should indicate what the correct 
regulatory text ought to be. Consistent with that observation, an 
error-correction request must base its claims of what DOE intended on 
materials in the rulemaking record, such as the preamble to the rule, 
technical support documents, published notices, comments, and other 
record materials. A request may not include new evidence, as new 
evidence would not be relevant for illuminating what the Secretary 
meant for the regulation to say. Given the ample opportunity for 
comment and other public input during the rulemaking process, in DOE's 
view, there is a need to bring finality to a given rulemaking and to 
avoid having an open-ended regulatory process, and, therefore, the 
agency will not accept new evidence and further defer the energy saving 
benefits of the energy conservation standards that are the subject of 
the rulemaking. Meanwhile, the task of evaluating new evidence would 
require time beyond what is appropriate for the error-correction 
process.
    Because only parties are allowed to file error-correction requests, 
a submitter must demonstrate that the requester is a ``party'' in 
accordance with this rule's definition of that term. The requester must 
identify the comment(s) or other input that the requester submitted in 
the course of the rulemaking.
    Finally, this rule requires that requests be submitted 
electronically by email. This rule does not specify an email address to 
which requests should be sent, as each final rule will specify the 
appropriate email address for error-correction requests. The Department 
may consider a filing submitted by another mechanism if email filing is 
not feasible; a party seeking to use a different mechanism should 
consult first with the DOE program point of contact identified in the 
notice of the final rule for further information.

Sec.  430.5(e): Correction of Rules

    This section describes the courses of action that the Department 
may undertake if it believes a request for correction may have 
identified an error. DOE may undertake to correct the rule, if doing so 
would be consistent with the applicable requirements of EPCA and the 
Administrative Procedure Act. In such cases, DOE will ordinarily make 
the correction before submitting the rule to the Office of the Federal 
Register for publication. Publication of the submitted rule will take 
place pursuant to the ordinary procedures of the Office of the Federal 
Register.

Sec.  430.5(f): Publication in the Federal Register

    This section describes how the Department will eventually publish a 
final rule in the Federal Register. If, after 30 calendar days have 
elapsed since DOE posted a rule subject to this process, DOE receives 
no proper requests for correction of errors, and identifies no errors 
on its own, it will simply submit the rule as posted to the Office of 
the Federal Register for publication. If DOE receives error-correction 
requests but decides not to undertake any corrections to the rule, it 
will submit the rule as posted to the Office of the Federal Register 
for publication. Such submission indicates that the Department has 
rejected the requests it received, and the Department will ordinarily 
provide no other response to such requests. Barring extenuating 
circumstances, the Department will review proper error-correction 
submissions and submit the rule to the Office of the Federal Register 
for publication within 30 calendar days after the close of the 30-day 
period for submitting error-correction requests. Publication of 
submitted rules will take place in accordance with the ordinary 
procedures of the Office of the Federal Register.
    The Department's rejection of a request does not necessarily mean 
the claim of error was mistaken. The regulatory text in the posted rule 
may indeed have been inconsistent with the Department's decision as 
reflected in the rulemaking record. However, DOE may choose not to 
correct the regulation because it concludes the regulatory text is 
nonetheless acceptable; for instance, because it considers the error 
insignificant.
    This section also reiterates certain mandates from EPCA and from 
the Administrative Procedure Act with respect to publication. DOE will 
not make any rule subject to this part effective until after DOE has 
published the rule in the Federal Register. Further, DOE notes that 
compliance with a new or amended standard is generally linked to a 
specified lead-time from the date of publication in the Federal 
Register to provide the affected industries with sufficient time to 
adjust their products and manufacturing to satisfy the new or amended 
standard. See, e.g., 42 U.S.C. 6313(f)(4)(B) (providing a lead-time of 
two to five years for walk-in cooler and freezer performance 
standards); see also 42 U.S.C. 6295(m)(4) (specifying applicable lead-
times for a variety of different consumer products) and 42 U.S.C. 
6295(l) (providing that energy conservation standards for newly covered 
products shall not apply to ``products manufactured within five years 
after the publication of a final rule establishing such standard.''). 
The Department will adhere to that framework for all rules subject to 
this part.

Sec.  430.5(g): Alteration of Standards

    This paragraph articulates the Department's conclusion that it may 
change a standard that it has posted but has not yet published in the 
Federal Register. A change pursuant to this process is permissible even 
if the effect of such a change is to increase the maximum energy use or 
decrease the energy efficiency that the standard would reflect.
    The Department interprets section 325(o)(1) (and its analogs 
applicable to certain types of equipment) to permit this approach. 
These provisions prohibit DOE from ``increas[ing] the maximum allowable 
energy use'' or ``decreas[ing] the minimum required energy 
efficiency.'' However, they do not indicate unambiguously what are the 
relevant maximum ``allowable'' use and minimum ``required'' efficiency 
against which an amended standard should be compared. Applying these 
terms to refer only to rules published in the Federal Register is 
consistent with the Act and will further its purposes.
    DOE notes that the Act uniformly sets compliance dates based on the 
``publication'' of rules.\2\ For example, for certain consumer 
products, compliance with an amended standard is required for products 
manufactured three years after publication; for others, compliance is 
required five years after an amended standard is published. 42 U.S.C. 
6295(m)(4). ``Publication'' does not appear to be simply the term used 
in the

[[Page 27003]]

Act for producing a rule. For example, EPCA distinguishes issuance from 
publication by stating that DOE is to begin a rulemaking to review a 
standard within six years after ``issuance''--rather than 
``publication''--of the standard. 42 U.S.C. 6295(m)(1).
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    \2\ Because EPCA involves rulemaking and the APA specifies that 
substantive rules shall be published in the Federal Register and not 
effective until they have been, the Department takes ``published'' 
in EPCA to refer to publication in the Federal Register.
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    Thus, ``publication,'' rather than other steps involved in 
rulemaking, is the trigger for eventual manufacturer compliance. A 
manufacturer can lawfully make products that do not meet the amended 
standards until the compliance date, and until the rule has been 
published there is not even a date certain at which a manufacturer will 
have to comply.
    Besides being consistent with the text and structure of EPCA, the 
Department's interpretation furthers the Act's purposes. DOE 
understands the overall purpose of the Act's standards provisions to be 
achieving an increase, over time, in the conservation of energy in the 
United States. Other goals of EPCA include mitigating adverse economic 
consequences that energy conservation can sometimes cause, and reducing 
the costs of the changes required to increase conservation. Those goals 
are revealed in multiple provisions, such as those that set compliance 
dates several years after publication of amended standards.
    If the Department made an error in the regulatory text of a rule, 
and that error had the effect of increasing a standard beyond what the 
Department had concluded--after reasoned deliberations--was 
appropriate, the error-correction process set forth in this document 
would permit the Department to correct it. For section 325(o) to 
prohibit that result would undermine the multiple goals of EPCA. Were 
an erroneous standard to remain in place, its economic costs might be 
higher than what DOE had concluded could be justified, at that time, by 
the resulting energy savings or the standard might be technologically 
infeasible. That outcome would be inconsistent with EPCA's requirement 
to ensure that a standard be one that the Secretary determines is 
``economically justified,'' and it could itself lead to uncertainty 
(e.g., legal challenge to the standard), which would be likely to 
generate further economic costs. And, contrary to the purposes of EPCA 
identified above, the outcome might include the invalidation of the 
standard--or the entire final rule--by a court, thereby leaving the 
Nation with no new standard that would have provided the increased 
energy savings DOE had intended to provide until completion of a 
replacement rulemaking by DOE, which could take considerable time. In 
contrast, the error-correction process set forth in this rule allows 
DOE to align the text of its regulations with the assessment it has 
already made of what standard would be appropriate--and ultimately 
achieve the significant energy savings that the Secretary determines 
are economically justified and technologically feasible as mandated by 
the Act. Accordingly, in DOE's view, section 325(o) permits the 
Department to correct an error in the text of a rule in the manner 
prescribed in this rule.

Sec.  430.5(h): Judicial Review

    This section clarifies the timing related to a potential petition 
for review that a person may file pursuant to 42 U.S.C. 6306. The 
section states that a rule is prescribed on the date of its publication 
in the Federal Register. Accordingly, for purposes of filing a legal 
challenge regarding an energy conservation standard rule, the date of 
publication in the Federal Register must be used when determining 
whether a given petition for review is timely in accordance with the 
statute.

IV. Procedural Issues and Regulatory Review

A. Administrative Procedure Act

    This rule of agency procedure and practice is not subject the 
requirement to provide prior notice and an opportunity for public 
comment pursuant to authority at 5 U.S.C. 553(b)(A). The Administrative 
Procedure Act's exception to the notice-and-comment rulemaking 
requirement for rules of agency procedure and practice reflects 
Congress's judgment that such rules typically do not significantly 
benefit from notice-and-comment procedures, and that judgment is 
particularly applicable here, where the agency perceives no specific 
need for notice and comment. In addition, DOE has concluded that 
seeking comment on this rule would inappropriately divert valuable 
agency resources from other rulemakings that Congress has directed DOE 
to complete according to certain statutory timelines.
    This rule is also not a substantive rule subject to a 30-day delay 
in effective date pursuant to 5 U.S.C. 553(d).

B. Review Under Executive Orders 12866 and 13563

    This regulatory action is not a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866. Accordingly, this action 
was not subject to review under that Executive Order by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB). DOE has also reviewed this regulation pursuant to 
Executive Order 13563, issued on January 18, 2011. 76 FR 3281 (January 
21, 2011). EO 13563 is supplemental to and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. As a result, EO 13563 also does 
not apply to this rule.

C. 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 (IRFA) 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. 
Because this rule is not subject to the requirement to provide prior 
notice and an opportunity for public comment, it is not subject to the 
analytical requirements of the Regulatory Flexibility Act.

D. Review Under the Paperwork Reduction Act

    This rule does not contain a collection of information for purposes 
of the Paperwork Reduction Act.

E. Review Under the National Environmental Policy Act of 1969

    DOE has 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 DOE's 
implementing regulations at 10 CFR part 1021. Specifically, this rule 
is strictly procedural and is covered by the Categorical Exclusion in 
10 CFR part 1021, subpart D, paragraph A6. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), 
imposes certain requirements on Federal agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by

[[Page 27004]]

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. DOE examined this final rule and determined that it will 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. 
EPCA governs and prescribes Federal preemption of State regulations as 
to energy conservation for the equipment that are the subject of this 
final rule. States can petition DOE for exemption from such preemption 
to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 
6297(d)) No further action is required by Executive Order 13132.

G. 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,'' 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. 61 FR 
4729 (Feb. 7, 1996). 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 rule meets the 
relevant standards of Executive Order 12988.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a regulatory action resulting in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820; also available 
at https://energy.gov/gc/office-general-counsel. DOE examined this final 
rule according to UMRA and its statement of policy and determined that 
the rule contains neither an intergovernmental mandate, nor a mandate 
that may result in the expenditure of $100 million or more in any year, 
so these requirements do not apply.

I. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This rule will not have any impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is not 
necessary to prepare a Family Policymaking Assessment.

J. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' 53 FR 8859 (Mar. 18, 1988),that this regulation would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

K. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to 
review most disseminations of information to the public under 
guidelines established by each agency pursuant to general guidelines 
issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 
2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 
2002). DOE has reviewed this final rule under the OMB and DOE 
guidelines and has concluded that it is consistent with applicable 
policies in those guidelines.

L. 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 OIRA 
at OMB, a Statement of Energy Effects for any significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use if the regulation is implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    This final rule is not a significant energy action because the 
ability to correct regulations will not, in itself, have a significant 
adverse effect on the supply, distribution, or use of energy. Moreover, 
it would not have a significant adverse effect on the supply, 
distribution, or use of energy, nor has it been designated as a 
significant energy action by the Administrator of OIRA. Therefore, it 
is not a significant energy action, and, accordingly, DOE has not 
prepared a Statement of Energy Effects.

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation

[[Page 27005]]

of this rule before its effective date. The report will state that it 
has been determined that the rule is not a ``major rule'' as defined by 
5 U.S.C. 804(2).

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

List of Subjects

10 CFR Part 430

    Administrative practice and procedure, Energy conservation test 
procedures, Household appliances.

10 CFR Part 431

    Administrative practice and procedure, Energy conservation test 
procedures, Commercial and industrial equipment.

    Issued in Washington, DC, on February 9, 2016.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

    For the reasons set forth in the preamble, DOE amends parts 430 and 
431 of Chapter II of title 10 of the Code of Federal Regulations as set 
forth below:

PART 430--ENERGY CONSERVATION STANDARDS FOR CONSUMER PRODUCTS

0
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.


0
2. Section 430.5 is added to subpart A to read as follows:


Sec.  430.5  Error correction procedures for energy conservation 
standards rules.

    (a) Scope and purpose. The regulations in this section describe 
procedures through which the Department of Energy accepts and considers 
submissions regarding possible Errors in its rules under the Energy 
Policy and Conservation Act, as amended (42 U.S.C. 6291-6317). This 
section applies to rules establishing or amending energy conservation 
standards under the Act, except that this section does not apply to 
direct final rules issued pursuant to section 325(p)(4) of the Act (42 
U.S.C. 6295(p)(4)).
    (b) Definitions.
    As used in this section:
    Act means the Energy Policy and Conservation Act, as amended (42 
U.S.C. 6291-6317).
    Error means an aspect of the regulatory text of a rule that is 
inconsistent with what the Secretary intended regarding the rule at the 
time of posting. Examples of possible mistakes that might give rise to 
Errors include:
    (1) A typographical mistake that causes the regulatory text to 
differ from how the preamble to the rule describes the rule;
    (2) A calculation mistake that causes the numerical value of an 
energy conservation standard to differ from what technical support 
documents would justify; or
    (3) A numbering mistake that causes a cross-reference to lead to 
the wrong text.
    Party means any person who has provided input during the proceeding 
that led to a rule by submitting timely comments (including ex parte 
communications properly made within the relevant comment period) in 
response to a notice seeking comment or by providing substantive input 
at a public meeting regarding the rulemaking. For purposes of this 
definition, notices seeking comment include notices of proposed 
rulemaking, supplemental notices of proposed rulemaking, requests for 
information, and notices of data availability.
    Rule means a rule establishing or amending an energy conservation 
standard under the Act.
    Secretary means the Secretary of Energy or an official with 
delegated authority to perform a function of the Secretary of Energy 
under this section.
    (c) Posting of rules. (1) The Secretary will cause a rule under the 
Act to be posted on a publicly-accessible Web site.
    (2) The Secretary will not cause a rule to be published in the 
Federal Register during 30 calendar days after posting of the rule 
pursuant to paragraph (c)(1) of this section.
    (3) Each rule posted pursuant to paragraph (c)(1) of this section 
shall bear the following disclaimer:

    NOTICE: The text of this rule is subject to correction based on the 
identification of errors pursuant to 10 CFR 430.5 before publication in 
the Federal Register. Readers are requested to notify the United States 
Department of Energy, by email at XXX@ee.doe.gov, of any typographical 
or other errors, as described in such regulations, by no later than 
midnight on [INSERT DATE 30 CALENDAR DAYS AFTER DATE OF POSTING OF THE 
DOCUMENT ON THE DEPARTMENT'S WEB SITE], in order that DOE may consider 
whether corrections should be made before the document is submitted to 
the Office of the Federal Register for publication.
    (d) Request for correction. (1) A party identifying an Error in a 
rule subject to this section may request that the Secretary correct the 
Error. Such a request must be submitted within 30 calendar days of the 
posting of the rule pursuant to paragraph (c) of this section.
    (2)(i) A request under this section must identify an Error with 
particularity. The request must state what text is claimed to be 
erroneous and provide text that the requester argues would be a correct 
substitute. The request must also substantiate the claimed Error by 
citing evidence from the existing record of the rulemaking that the 
text of the rule as issued is inconsistent with what the Secretary 
intended the text to be.
    (ii) A party's disagreement with a policy choice that the Secretary 
has made will not, on its own, constitute a valid basis for a request 
under this section.
    (3) The evidence to substantiate a request (or evidence of the 
Error itself) must be in the record of the rulemaking at the time of 
the rule's issuance, which may include the preamble accompanying the 
rule. The Secretary will not consider new evidence submitted in 
connection with a request.
    (4) A request must also demonstrate that the requester is a party 
by identifying one or more timely comment(s) or other substantive input 
that the requester previously provided in the proceeding leading to the 
rule.
    (5) A request under this section must be filed in electronic format 
by email to the address that the rule designates for correction 
requests. Should filing by email not be feasible, the requester should 
contact the program point of contact designated in the rule regarding 
an appropriate alternative means of filing a request.
    (6) A request that does not comply with the requirements of this 
section will not be considered.
    (e) Correction of rules. The Secretary may respond to a request for 
correction under paragraph (d) of this section or address an Error 
discovered on the Secretary's own initiative by submitting to the 
Office of the Federal Register either a corrected rule or the rule as 
previously posted.
    (f) Publication in the Federal Register. (1) If, after receiving 
one or more properly filed requests for correction, the Secretary 
decides not to undertake any corrections, the Secretary will submit the 
rule for publication to the Office of the Federal Register as it was 
posted. If the Secretary submits a rule to be so published without 
altering the rule in the respects requested, the requests are deemed 
rejected. The

[[Page 27006]]

Secretary will ordinarily provide no written response to a rejected 
request.
    (2) If the Secretary receives no properly filed requests after the 
posting of a rule and identifies no errors on the Secretary's own 
initiative, the Secretary will in due course submit the rule as it was 
posted to be Office of the Federal Register for publication. This will 
occur after the 30-day period prescribed by paragraph (c)(2) of this 
section has elapsed.
    (3) If the Secretary receives a properly filed request after 
issuance of a rule and determines that a correction is necessary, the 
Secretary will absent extenuating circumstances, submit a corrected 
rule for publication in the Federal Register within 30 days after the 
30-day period prescribed by paragraph (c)(2) of this section has 
elapsed.
    (4) Consistent with the Act, compliance with an energy conservation 
standard will be required upon the specified compliance date as 
published in the relevant rule in the Federal Register.
    (5) Consistent with the Administrative Procedure Act, and other 
applicable law, the Secretary will ordinarily designate an effective 
date for a rule under this section that is no less than 30 days after 
the publication of the rule in the Federal Register.
    (g) Alteration of standards. Until an energy conservation standard 
has been published in the Federal Register, the Secretary may correct 
such standard, consistent with the Administrative Procedure Act.
    (h) Judicial review. For determining the prematurity, timeliness, 
or lateness of a petition for judicial review pursuant to section 
336(b) of the Act (42 U.S.C. 6306), a rule is considered ``prescribed'' 
on the date when the rule is published in the Federal Register.

PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND 
INDUSTRIAL EQUIPMENT

0
3. The authority citation for part 431 continues to read as follows:

    Authority:  42 U.S.C. 6291-6317.


0
4. Section 431.3 is added to subpart A to read as follows:


Sec.  431.3  Error correction procedure for energy conservation 
standards rules.

    Requests for error-corrections pertaining to an energy conservation 
standard rule for commercial or industrial equipment shall follow those 
procedures and provisions detailed in 10 CFR 430.5.

[FR Doc. 2016-03190 Filed 5-4-16; 8:45 am]
 BILLING CODE 6450-01-P