Energy Conservation Program: Notice of Partial Grant and Partial Denial of Petitions To Amend the Error Correction Rule, 57745-57758 [2016-19968]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 81, Number 164 (Wednesday, August 24, 2016)]
[Rules and Regulations]
[Pages 57745-57758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19968]


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DEPARTMENT OF ENERGY

10 CFR Parts 430 and 431

RIN 1904-AD63
[Docket Number EERE-2016-BT-PET-0016]


Energy Conservation Program: Notice of Partial Grant and Partial 
Denial of Petitions To Amend the Error Correction Rule

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

ACTION: Final rule; partial grant and partial denial of petitions.

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SUMMARY: The U.S. Department of Energy (``DOE'') is granting in part 
and denying in part a series of petitions to amend a recently published 
rule that established a procedure through which a party can, within a 
prescribed 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 (``error correction rule''). DOE also provided an

[[Page 57746]]

opportunity for the public to comment on these petitions. This document 
responds to both the petitions and related comments that were submitted 
and received in accordance with the timelines established in a prior 
Federal Register notice inviting such petitions and comments.

DATES: This partial grant and partial denial is effective September 23, 
2016.

ADDRESSES: All petitions and comments filed in accordance with the 
timelines set forth in the prior Federal Register notice have been 
entered into docket number EERE-2016-BT-PET-0016. The docket is 
available for review at https://www.regulations.gov. For further 
information on how to review the docket, contact Mr. John Cymbalsky at 
(202) 287-1692 or by email: John.Cymbalsky@ee.doe.gov.

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:

I. Background

    The Department of Energy (``DOE'' or the ``Department'') recently 
published a final rule 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 its publication in the Federal Register. See 81 FR 26998 (May 5, 
2016). In that same issue of the Federal Register, DOE also invited the 
public to submit petitions to amend the error correction rule. DOE 
provided that it would use its best efforts to issue a public document 
by August 10, 2016, responding to any such petitions submitted by June 
6, 2016, and any timely filed comments responding to those petitions. 
See 81 FR 27054 (May 5, 2016).
    DOE received four petitions to amend the rule and several comments 
responding to those petitions. The submitters of these documents, along 
with their affiliations, are identified in Table 1.

                                     Table 1--List of Petitioners/Commenters
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     Petitioners (P)/Commenters (C)             Organization type                   Identifier/Acronym
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Air Conditioning, Heating and            Heating, Ventilation and Air     AHRI.
 Refrigeration Institute (P, C).          Conditioning (``HVAC'')
                                          Industry Trade Organization.
American Gas Association and American    Energy Industry Trade            AGA-AGPA.
 Public Gas Association (C).              Organization.
Appliance Standards Awareness Project,   Energy Efficiency Advocates....  Joint Advocates.
 Earth Justice, and Natural Resources
 Defense Council (P, C).
Association of Home Appliance            Home Appliance Industry Trade    AHAM.
 Manufacturers (C).                       Organization.
Hussmann Corporation (P, C)............  Refrigeration Equipment          Hussmann.
                                          Manufacturer.
Lennox International (P, C)............  HVAC Manufacturer..............  Lennox.
Traulsen and Kairak (C)................  Refrigeration Product and        Traulsen-Kairak.
                                          Equipment Manufacturers.
Zero Zone (C)..........................  Refrigeration Equipment          Zero Zone.
                                          Manufacturer.
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Note: AHAM filed both joint comments with AHRI as well as separate comments on its own behalf.

II. Summary of and Responses to Comments

    At the outset, DOE notes that the petitioners agreed with the 
fundamental underpinnings supporting the basis for the error correction 
rule. First, the petitioners--AHRI, Hussmann, the Joint Advocates, and 
Lennox--all agreed with the stated purpose of the error correction 
rule--that is, to prevent errors from affecting energy conservation 
standards applicable to consumer products or commercial equipment. AHRI 
Petition to Amend, EERE-2016-BT-PET-0016-0005, at 1-2; Hussmann 
Petition to Amend, EERE-2016-BT-PET-0016-0003, at 1; Joint Advocates 
Petition to Amend, EERE-2016-BT-PET-0016-0006, at 1; and Lennox 
Petition to Amend, EERE-2016-BT-PET-0016-0004, at 1. They also 
generally agreed that errors in need of correction are not common, see 
Lennox Petition, No. 0004, at 1 and Joint Advocates Petition, No. 0006, 
at 1, and that the process laid out in the error correction rule should 
not be used as a means to revisit and re-argue issues that have already 
been raised and addressed during the rulemaking process. See AHRI 
Petition, No. 0005, at 1-2 and Lennox Petition, No. 0004, at 1. AHRI 
and Lennox also acknowledged that applying the error correction process 
to direct final rules established under 42 U.S.C. 6295(p)(4) was not 
warranted, assuming that identification of an error would qualify as an 
``adverse comment'' for purposes of 6295(p)(4). See AHRI Petition, No. 
0005, at 10-11 and Lennox Petition, No. 0004, at 4.
    While the petitioners agreed with the need and rationale for the 
error correction rule, they also suggested several changes to the rule. 
These suggestions are discussed in the following sections.

A. Time Within Which To File an Error Correction Request, Statutory 
Deadlines

    The error correction rule requires that a party must submit a 
request for correction ``within 30 calendar days of the posting of the 
rule.'' 10 CFR 430.5(d)(1). The timelines also prescribe a period 
within which DOE will submit any corrected rule for publication in the 
Federal Register. See 10 CFR 430.5(d) through (f). Petitioners and 
commenters responded to each of these issues.
    First, with respect to potential modifications to the rule, each of 
the industry petitioners asked that DOE consider providing a longer 
period of time than the 30 days prescribed by the rule within which to 
submit an error correction request. See 81 FR at 27005. The petitioners 
asserted that because DOE's standards rulemakings are often both 
complex and lengthy, additional time beyond the prescribed 30 days 
should be provided to ensure that any errors in the standards final 
rule are identified to DOE. The suggested timelines from these 
petitioners ran from 45 days up to 60 days. See Hussmann Petition, No. 
0003, at 1; Lennox Petition, No. 0004, at 3; and AHRI Petition, No. 
0005, at 8. Among these petitioners, one--AHRI--also suggested that DOE 
consider extending the time period for submitting error correction 
requests until the effective date of a rule. According to AHRI, 
extending the period in this way would ``not further delay the 
effective date of the rule,'' although AHRI also stated that its 
approach is ``consistent with the

[[Page 57747]]

APA power to postpone effective dates.'' AHRI Petition, No. 0005, at 8-
9. In AHRI's view, such an option would also be consistent with DOE's 
prior view of the meaning of the term ``effective date'' and is 
supported by the fact that a rule is not necessarily effective upon 
publication in the Federal Register. AHRI Petition, No. 0005, at 8-9. 
AHRI also asserted that the inadequacy of a 30-day review period is 
recognized in EPCA by virtue of its inclusion of a 60-day period for 
parties to challenge a final rule establishing an energy conservation 
standard in court. Id. at 8.
    Second, the Joint Advocates argued in favor of an exception to the 
error correction rule when following the rule's timing provisions for 
review would conflict with statutorily mandated rulemaking deadlines. 
In their view, case law suggests that there are only limited 
circumstances when federal agencies can extend statutory deadlines, 
none of which apply in the case of an error correction rule. In the 
event it is needed to avoid potential timing conflicts with statutory 
deadlines, the Joint Advocates suggested that DOE publicly post a draft 
of a standards final rule once it is transmitted to the Office of 
Management and Budget for pre-posting review, in order to provide more 
lead-time for parties to check for errors. Joint Advocates Petition, 
No. 0006, at 1-2.
    Others disagreed with the Joint Advocates' suggestion. See Zero 
Zone, No. 0007, at 1; Lennox, No. 0009, at 2-3; AHRI-AHAM, No. 0012, at 
2-5. Zero Zone argued that the Secretary should not be held to an exact 
time period because it is better to achieve a correct rule through an 
error correction process than through a court challenge. Zero Zone, No. 
0007, at 1. Lennox as well as AHRI and AHAM raised several criticisms 
of the Joint Advocates' approach. First, they commented that the Joint 
Advocates' approach would result in prioritizing statutory mandates 
regarding timing over the statutory mandate providing that DOE may not 
adopt energy conservation standards unless it finds that the standards 
are technologically feasible and economically justified. Lennox, AHRI, 
and AHAM suggest that this statutory conflict should be resolved by 
prioritizing the correction of errors, particularly because of EPCA's 
anti-backsliding provision, 42 U.S.C. 6295(o)(1). AHRI and AHAM further 
stated that this position is supported by case law. See AHRI-AHAM, No. 
0012, at 3-4. Second, these commenters asserted that rushing to meet a 
deadline is a type of situation that could lead to rulemaking errors. 
Third, they warned that not allowing for the correction of errors in a 
rule could lead to errors resulting in litigation, which could lead to 
a delay in implementing new standards and result in less energy 
savings. Fourth, they argued that DOE would be able to manage the 
competing needs of satisfying any relevant statutorily mandated lead-
times and the reviewing period provisions under the error correction 
rule. Finally, the commenters stated that allowing deadlines to prevail 
over the error correction process could create an incentive for DOE to 
delay rulemaking in order to avoid addressing errors. Lennox, No. 0009, 
at 2-3; AHRI-AHAM, No. 0012, at 2-5.
    After further consideration, DOE is extending the amount of time 
for the submission of error correction requests by 15 additional days--
for a total of 45 days after the posting of a final rule. Providing 
this additional time will better ensure that any potential errors are 
addressed and corrected prior to the publication of a standards final 
rule, which will reduce the possibility of promulgating an incorrect 
energy conservation standard. By taking this step, DOE seeks to 
increase the likelihood that the public will identify any errors of the 
types addressed by the error correction rule. Correction of these 
errors will be beneficial for the reasons discussed in the Final Rule. 
With respect to providing a longer period of time, such as the 60 days 
suggested by industry petitioners, in DOE's view, offering a 60-day 
period as a matter of routine practice for identifying the types of 
errors addressed by this rule is unnecessary, as these kinds of errors 
typically can be readily identified well within the time period 
provided in this rule. DOE also notes that, contrary to AHRI's 
contention, its approach is consistent with the provision in EPCA that 
provides entities with 60 days from the date a rule is published in the 
Federal Register \1\ to file a petition for review in a court of 
appeals. Such petitions may address a range of grounds for challenging 
a final rule, whereas the error correction rule is limited in scope.\2\ 
Accordingly, it should take parties substantially less time to identify 
errors as defined in the error correction rule and to prepare an error 
correction request.
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    \1\ Henceforward in this document, the words ``published'' and 
``publication'' refer to a document being published in the Federal 
Register.
    \2\ AHRI's request for a reconsideration process that would 
allow for the consideration of any type of issue with a posted rule 
is discussed infra.
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    AHRI also suggested that DOE extend the period for submitting error 
correction requests until the effective date of a rule. This suggestion 
misapprehends the purpose and operation of the error correction rule. 
AHRI's request, by its nature, would permit error correction requests 
to be submitted after publication of a rule in the Federal Register, 
because the effective date of a rule necessarily occurs after such 
publication. But applying the error correction rule to rules that have 
already been published in the Federal Register would make little sense, 
because the central features of the error correction rule are that DOE 
delays publishing a rule in the Federal Register (for 45 days after 
posting the rule) to allow for the submission of error correction 
requests, and that DOE commits to considering properly submitted error 
correction requests before publishing the rule in the Federal Register. 
After DOE has published a rule in the Federal Register, neither outcome 
is available. As DOE explained in establishing the error correction 
rule, the anti-backsliding provision in EPCA, 42 U.S.C. 6295(o)(1), 
makes it particularly important to be able to correct regulatory text 
before DOE publishes a rule in the Federal Register. By contrast, a 
person submitting an error correction request after publication could 
just as easily make use of existing statutory mechanisms to ask DOE to 
amend the published rule. DOE does not see, and AHRI did not explain, 
why those mechanisms would be inadequate so that a special post-
publication error correction process would be warranted.\3\
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    \3\ DOE recognizes that because the error correction rule 
required parties to submit error correction requests within 30 days 
of a rule's posting (45 days per the amendment described above), 
while DOE might not publish the rule in the Federal Register until 
later (pursuant to Sec.  430.5(f)), there may, for a given rule, be 
a period of time in which DOE has not yet published a rule in the 
Federal Register but is not accepting requests under the error 
correction process. That period is important, because DOE must have 
some time in which it is able to conclude its consideration of error 
correction requests and proceed to publish a rule. If DOE committed 
that it would not publish a rule until it had considered every error 
correction request submitted before publication--even those 
submitted well after the 30-day (now 45-day) period--the publication 
of rules could be significantly delayed. Because compliance dates 
depend on the dates of publication, that outcome would upset the 
balance that DOE has struck in committing to a short delay for the 
sake of correcting errors.
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    DOE believes that the pre-publication error correction process set 
forth in the amended rule is superior to an error correction process 
permitting the submission of error correction requests during the 
existing 30-day pre-publication period through the effective date of a 
rule, which post-dates the publication of a rule in the Federal 
Register. The Joint Advocates argue that ``[e]xtending the error 
correction process

[[Page 57748]]

beyond a rule's publication in the Federal Register would ignore that 
DOE lacks the authority to weaken or postpone a standard beyond that 
point'' under 42 U.S.C. 6295(o)(1), EPCA's anti-backsliding provision. 
Joint Advocates, No. 0013, at 1. If the Joint Advocates are correct, 
then AHRI's suggestion that DOE extend the time period for submitting 
error correction requests beyond publication of a rule in the Federal 
Register is obviously unworkable because DOE would be precluded from 
granting error correction requests unless doing so resulted in more 
stringent energy conservation standards.
    DOE need not, however, decide in this rulemaking whether the Joint 
Advocates are correct because, even if EPCA and the APA granted DOE the 
authority to grant any error correction request submitted after the 
publication of a standards rule in the Federal Register, DOE would 
still decline to adopt AHRI's suggestion that it extend the current 30-
day pre-publication period for submitting error correction requests 
until the effective date of a rule. Contrary to AHRI's assertion (AHRI 
Petition, No. 0005, at 8), adopting that suggestion would further delay 
the energy savings benefits of a standards rule where, among other 
circumstances, DOE decides to change a standards rule in response to an 
error correction request submitted after publication of a rule in the 
Federal Register. That is so because such a changed rule would need to 
be published in the Federal Register, and EPCA provides that compliance 
dates must be set a certain period of time after the ``publication'' of 
rules in the Federal Register. See 81 FR at 27,002; see also supra note 
2. Such a delay is unacceptable, particularly given that DOE has 
determined that the 45-day period DOE is adopting for the submission of 
error correction requests is sufficient to permit the public to 
identify possible errors in its standards rules. Moreover, AHRI's 
approach would result in substantial uncertainty for the regulated 
community because manufacturers would not know whether they would be 
required to conform to standards set forth in rules published in the 
Federal Register until DOE subsequently announced its decision on 
pending error correction requests. But the very purpose of the EPCA 
provisions setting compliance dates a certain amount of time after 
publication of a standard in the Federal Register is to provide 
manufacturers enough time to prepare to implement the new standards. 
AHRI's suggestion would effectively reduce this period of time in many 
circumstances (such as where DOE decides, after a rule is published in 
the Federal Register, that it will make no changes to a rule), to the 
detriment of the regulated community. For all of these reasons, even if 
DOE could adopt AHRI's suggestion without running afoul of the anti-
backsliding provision and other requirements set forth in EPCA and the 
APA (a question that DOE need not decide), it would not--and does not--
adopt that approach.
    DOE is also declining to adopt the approach suggested by the Joint 
Advocates. In DOE's view, ensuring that its energy conservation 
standards published in the Federal Register comport with the judgments 
DOE has made heavily outweighs the potential costs associated with a 
modest delay in the Federal Register publication of a given standards 
rule. Moreover, the error correction rule promotes compliance with the 
statutory mandate that DOE not adopt a standard unless it determines, 
inter alia, that the standard is technologically feasible and 
economically justified. See, e.g., 42 U.S.C. 6295(o)(2) and 6316(a). By 
providing the opportunity to file an error correction request to notify 
DOE of potential errors in the final rule's regulatory text, DOE can 
more readily identify and correct these errors prior to the rule's 
publication in the Federal Register. An error that could have been 
identified, if given this opportunity, might otherwise become the basis 
of a legal challenge that could delay the rule yet further. DOE's error 
correction process seeks to avoid those legal challenges. In addition, 
as noted earlier, correcting an error means bringing the regulatory 
text into harmony with DOE's policy judgment, as reflected in the rest 
of the rulemaking documents. The resulting regulatory text can be 
expected to fulfill and balance the multiple goals of EPCA better than 
the erroneous text would have.
    While providing a pre-publication error correction process may 
require the expenditure of a modest amount of additional time, in DOE's 
view, weighing the potential energy savings losses of this relatively 
small delay against the benefits of correcting errors, given that 
errors, on occasion, can occur, cuts in favor of providing potential 
error correction requesters with the additional time provided by the 
error correction rule to review and identify errors to the Secretary.

B. Overly Narrow Definitions

    The error correction rule defined a number of terms related to the 
error correction process. Among these terms were definitions for 
``Error,'' ``Party,'' and ``Rule.'' The rule defined ``Error'' 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.'' 10 
CFR 430.5(b). That definition also provided three examples of possible 
mistakes that could give rise to ``Errors''--typographical mistakes, 
calculation mistakes, and numbering mistakes. See id. The term 
``Party'' was defined as ``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.'' Id. 
Finally, a ``Rule'' was defined as ``a rule establishing or amending an 
energy conservation standard under the Act.'' 10 CFR 430.5(b).
    Industry petitioners viewed these definitions as overly narrow. 
First, in their view, the definition for ``Error'' should be broadened 
to include not only the regulatory text of a final rule but errors 
contained within the accompanying Technical Support Document (``TSD'') 
and the final rule's preamble discussion. With respect to TSD-related 
errors, the petitioners noted that the analysis within the TSD may be 
needed to help identify potential errors, which would necessitate 
including these TSD-related errors as part of the error correction 
rule. Additionally, they noted that new information presented in the 
preamble should be subject to comment since that information is often 
intertwined with the regulatory text itself. Lennox argued that errors 
in the preamble should be included because stakeholders will not have 
had a prior opportunity to comment on new information presented in the 
preamble discussion of a final rule. AHRI argued that the definition 
should be amended to make it objective, not subjective, and that 
stakeholders cannot guess the ``intent'' of the Secretary. Furthermore, 
AHRI expressed concern that a subjective definition could give rise to 
unfairness if DOE makes ``post hoc assertions'' about the Secretary's 
intent that did not in fact exist at the time of the posting of a final 
rule. See AHRI Petition, No. 0005, at 11-13; Lennox Petition, No. 0004, 
at 5.
    Second, some industry petitioners suggested that the rule's 
definition of the term ``Party'' was too narrow. See Hussmann Petition, 
No. 0003, at 2; Lennox Petition, No. 0004, at 5-6. In their view, this 
term should be expanded to include contributors to group responses that 
are filed as

[[Page 57749]]

comments during an on-going rulemaking and should not be limited to 
only the organizations that filed comments responding to a proposal. 
Lennox stated that an individual's status as a commenter in a 
rulemaking is irrelevant if the goal of the error correction rule is to 
correct errors in a given rule. Citing 42 U.S.C. 6305(b), in Lennox's 
view, the ability to file an error correction request should not hinge 
on whether a potential error correction requester filed comments in the 
underlying rulemaking proceeding. It also suggested that both this term 
and the related requirement that an individual demonstrate how it 
satisfies the ``Party'' requirement when submitting an error correction 
request (see 10 CFR 430.5(d)(4)) be dropped from the rule. Lennox 
Petition, No. 0004, at 5-6.
    Finally, the industry petitioners viewed the definition of ``Rule'' 
as too narrow. In their view, this term should include rules besides 
energy conservation standard rulemakings. The petitioners asserted that 
this term should include test procedure rulemakings in addition to 
energy conservation standard rulemakings. According to Lennox, test 
procedure rules are complex and can have an impact on efficiency 
ratings when intertwined with energy conservation standards. Lennox 
Petition, No. 0004, at 2-3. In AHRI's view, adding test procedure rules 
to the definition would promote transparency. It asserted that test 
procedure rulemakings are intertwined with efficiency standards and 
contain voluminous, technical data; are often not issued until after, 
or simultaneously with, efficiency standards; and have the same ``real-
world effect'' as do energy conservation standards. AHRI Petition, No. 
0005, at 4-5 n.2 & 7; Lennox Petition, No. 0004, at 2-3. Hussmann 
suggested that ``all rule types'' should be included as part of this 
definition. Hussmann Petition, No. 0003, at 1-2.
    Commenters responding to these points largely agreed with the 
industry petitioners. Most commenters generally agreed with AHRI's 
criticisms of the definition for ``Error.'' Zero Zone, No. 0007, at 1; 
AHAM, No. 0008, at 2; Lennox, No. 0009, at 1; AGA-APGA, No. 0010, at 1; 
Traulsen-Kairak, No. 0011, at 1. Most commenters also agreed that the 
definition of ``Party'' is too narrow. Zero Zone, No. 0007, at 1; 
Lennox, No. 0009, at 2; AGA-APGA, No. 0010, at 1; Traulsen-Kairak, No. 
0011, at 1; AHRI-AHAM, No. 0012, at 2. Zero Zone stated that someone 
seeing the information for the first time might catch errors that 
someone familiar with the subject might miss. Zero Zone, No. 0007, at 
1. Lennox agreed with Hussmann's petition, stating that the definition 
should be eliminated entirely because the goal of error correction is 
to detect errors. Lennox, No. 0009, at 2. AHRI and AHAM added that the 
source reporting an error is irrelevant because the purpose of error 
correction is to identify errors. AHRI-AHAM, No. 0012, at 2. Most 
commenters also agreed that the definition of ``Rule'' is too narrow. 
Zero Zone, No. 0007, at 1; AHAM, No. 0008, at 2; Lennox, No. 0009 at 1; 
AGA-APGA, No. 0010, at 2; Traulsen-Kairak, No. 0011, at 1. Zero Zone 
commented that expanding the definition to include ``[a]ll rules and 
test procedures'' would ensure accurate federal documents. Zero Zone, 
No. 0007, at 1. AHAM echoed AHRI's petition, commenting that the error 
correction process will be more transparent if the definition is 
broadened. AHAM, No. 0008, at 2.
    DOE is declining to adopt any of the suggested changes to the 
definitions of ``Error'' and ``Rule,'' but it is amending the rule in 
accordance with the suggested changes regarding the rule's definition 
of ``Party.'' With respect to the definition of ``Error,'' DOE 
disagrees that the error correction process should be available to 
correct mistakes that are not in the regulatory text itself. The 
purpose of the error correction rule is to prevent an erroneous energy 
conservation standards regulation from being published because after 
the compliance date, products (or equipment) subject to a standard may 
not be sold in the United States unless they meet the standard. As a 
result, errors in the standards adopted in an energy conservation 
standards rulemaking can have large economic consequences. By contrast, 
preambles and technical support documents are generally not legally 
binding in the same way. An error in one of those documents would not 
have the consequences that an error in the regulatory text might.
    DOE does not rule out the possibility that a mistake contained in a 
preamble, TSD, or other supporting material might lead the resulting 
regulatory text to be inconsistent with DOE's determinations in the 
rulemaking. In such a case, a person might properly file an error 
correction request that pointed out the mistake in the supporting 
material in the course of identifying the error in the regulatory text. 
But accepting input, during the brief error correction window, on 
mistakes in a preamble, TSD, or other supporting document that did not 
result in errors in the regulatory text would either be pointless 
(because the error was harmless) or would essentially mean being open 
to revisiting the entirety of the rulemaking. DOE declines to establish 
a general procedure, applicable to every standards rulemaking, 
requiring it to reconsider every aspect of the rulemaking documents. As 
discussed in this preamble, having such a general reconsideration 
procedure would create substantially more delay than the error 
correction rule; and the delay would not be warranted, because DOE 
would generally adhere to the policy decisions it has already made.
    Because the regulatory text forms the basis of what a regulated 
entity is legally obligated to perform, this aspect of the final rule 
should, in DOE's view, remain the focus of the error correction 
process. While DOE acknowledges that there may be potential value in 
addressing issues that may arise in the context of the preamble 
discussion or TSD (and related supporting documents), these documents, 
by themselves, do not impose any legal requirements on the affected 
regulated entities. And, to the extent that certain information in 
these documents creates a question regarding the validity of a 
particular rule, individuals are free to exercise their options under 
42 U.S.C. 6306 to seek a remedy to address any applicable issues that 
would fall outside of the ambit of the error correction rule.
    While DOE appreciates the value of ensuring that the preamble 
discussion and other supporting documents are free from potential 
errors, DOE emphasizes that, because regulated entities are held 
accountable for the provisions contained within the regulatory text, it 
is vital that this aspect of a standards final rule be correct. To the 
extent that a given preamble discussion warrants further clarification, 
DOE is willing--and has--provided supplemental guidance regarding its 
views. As for corrections to erroneous items within a given TSD or 
related DOE supporting document, DOE may address these types of issues 
on a case-by-case basis to eliminate any potential confusion that may 
arise from conflicts between those supporting documents and the final 
rule's regulatory text.
    AHRI also criticized the definition of ``Error'' as involving an 
assessment of DOE's ``intent'' regarding a rule. AHRI urged DOE to 
adopt a definition of ``Error'' that is objective. Although AHRI did 
not suggest an alternative definition, AHRI contends that without some 
different definition DOE will be encouraged to provide post hoc 
rationalizations if litigation over a rule arises. DOE does not agree 
that the definition of ``Error,'' as it stands, encourages post hoc 
rationalizations

[[Page 57750]]

during litigation. In the error correction rule, DOE explained that 
petitions for judicial review of standards rules should be filed after 
publication of the rule. Consequently, litigation over a given 
standards rule would arise, if at all, only after the conclusion of the 
error correction process.
    Moreover, DOE does not agree that because the definition of 
``Error'' refers to what DOE ``intended,'' the concept of ``Error'' is 
inherently subjective. Objective conceptions of intent are common in 
the law. For example, in interpreting a contract, objective 
manifestations of intent ordinarily prevail over any contrary claims 
about what one or the other party actually subjectively intended. With 
respect to the error correction process, the rule states that a claim 
of error must be based on evidence in the rulemaking record. Thus, the 
objective evidence in the rulemaking record will ordinarily illustrate 
whether the regulatory text contained an Error.
    Finally, AHRI noted that in some circumstances a person may 
conclude that a regulation contains an Error but may not be able to 
determine what the correct version of the regulation should be. DOE 
acknowledges that such a situation is in principle possible, and the 
Department's being notified of the potential Error would be valuable 
even if the submitter could not state what the correction version of 
the rule should be. Accordingly, DOE is amending paragraph (d)(2)(i) to 
permit a person to submit an error correction request without stating 
the correct substitute text, so long as the person states that it is 
unable to determine the correct text and explains why.
    With respect to the definition of ``Party,'' which delineates who 
can file an error correction request, DOE is adopting the suggestion 
that the rule should not restrict to commenters alone the opportunity 
to submit such requests. As the error correction rule explained, DOE 
believes that individuals who have availed themselves of the 
opportunity to comment on DOE's standards rulemakings, at public 
meetings or via written comments, are in the best position to identify 
potential errors with a given final rule. Those participating 
individuals who have provided comments to assist the agency in crafting 
the final rule's standards have demonstrated both the interest and 
requisite familiarity with the relevant rulemaking and its underlying 
analyses and data to help DOE in readily identifying errors that may 
appear in the final rule's regulatory text. However, DOE recognizes 
that other persons may, on occasion, be able to identify errors. DOE's 
original decision to define ``Party'' based on prior participation was 
based on a desire to avoid the burden of responding to voluminous input 
from persons who, generally lacking familiarity with a rulemaking, 
might submit suggestions that were really revisiting the substantive 
decisions behind the rule rather than error correction requests. In 
light of the petitions and comments, DOE has become convinced that such 
improper submissions would probably not be as common as it had thought. 
A person will likely not undertake the effort to prepare and submit a 
request during the error correction period without making some 
assessment that the submission will probably be proper. Improper 
submissions might occur, of course, but because they would represent 
unfruitful effort, DOE expects that submitters will try to avoid them. 
In light of this revised balancing of the considerations related to the 
term ``Party,'' DOE is dropping the definition and modifying its 
regulations to reflect that any person may submit an error correction 
request.
    Finally, with respect to which rules would be subject to the error 
correction rule's provisions, DOE is declining to extend the rule's 
application beyond rulemakings that establish or amend energy 
conservation standards. While it is also important to ensure that other 
rules such as those for test procedures are error-free, DOE has more 
flexibility to address errors in such rulemakings because there is no 
question that test procedures can be modified without regard to whether 
they have already been published or become effective. Accordingly, in 
DOE's view, while test procedure rulemakings can be complex, potential 
problems that are discovered in a test procedure's regulatory text can 
be addressed more readily than with standards rules. DOE also notes 
that the complexity of test procedure rules, which stems in large part 
from the very detailed and comprehensive text of the test procedure 
itself--along with related industry-based testing protocols that are 
often incorporated by reference--weighs in favor of not including test 
procedure rulemakings as part of the error correction process. While 
DOE believes that errors contained in the regulatory text of a 
standards final rule can be identified within the window prescribed in 
this rule, the variations in both length and complexity of the 
regulatory text of test procedures makes the application of this 
process less workable for these rulemakings. And if a person believed 
that DOE needed to correct an error discovered in the test procedure, 
it would be free to file a petition for rulemaking asking DOE to 
initiate a rulemaking to correct that rule. See 5 U.S.C. 553(e).

C. Publication Timing

    The error correction rule prescribes a timeline under which DOE 
will submit a rule to the Office of the Federal Register for 
publication. If the Secretary determines that a correction is necessary 
after receipt of a properly filed request, the Secretary will submit a 
corrected rule for publication in the Federal Register within 30 days 
after the 30-day Request for Correction window (which, as noted above, 
is being changed to a 45-day window), ``absent extenuating 
circumstances.'' 10 CFR 430.5(f)(3).
    The Joint Advocates objected to the quoted language and argued that 
the error correction rule should contain a more definitive statement 
regarding when the corrected rule will be submitted for publication in 
the Federal Register. In their view, DOE's use of the phrase ``absent 
extenuating circumstances'' in this context creates an ambiguity with 
respect to when DOE will submit a corrected rule for publication. The 
Joint Advocates suggested that DOE either drop this phrase or specify 
exactly how much time the Secretary will take to submit a corrected 
rule for publication. See Joint Advocates Petition, No. 0006, at 2-3.
    Lennox indicated in its comments that DOE cannot foresee every 
possible error and that the complexity of past DOE rulemaking analyses 
suggests that more than 30 days may sometimes be needed to resolve a 
given error correction request. In its view, devoting an additional 
amount of time in favor of ensuring that a standard is correct is 
preferable to the alternative of having a permanently flawed standard. 
Lennox, No. 0009, at 3.
    DOE is declining to make any change in response to this part of the 
Joint Advocates' petition. The language in 10 CFR 430.5(f)(3) was 
crafted to ensure that DOE could adjust to potential situations where 
additional time beyond the 30-day period for submitting a corrected 
rule to the Federal Register may be required. While DOE will make every 
effort to adhere to this 30-day timeline, it is not inconceivable that 
there may be occasions in which an unexpected delay may occur that 
would necessitate the need for additional time, such as where an error 
relates to particularly complex engineering analysis. Having this 
flexibility will help ensure that DOE has sufficient time to thoroughly 
review all timely error requests it receives and make any necessary 
corrections that may be

[[Page 57751]]

required to the final rule prior to its publication in the Federal 
Register.

D. Clarifying Certain Text

    The error correction rule uses the term ``posting'' to refer to the 
Secretary's action causing a rule under the Act to be posted on a 
publicly-accessible Web site. See 10 CFR 430.5(c)(1). Related 
provisions at 10 CFR 430.5(d)(3) and 10 CFR 430.5(f)(3) refer to the 
Secretary's ``issuance'' of a rule. Under the former provision, the 
rule notes that the evidence to substantiate an error correction 
request or evidence of the error must be in the rulemaking record ``at 
the time of the rule's issuance''; under the latter, the rule indicates 
that upon receipt of a properly filed correction request ``after 
issuance of a rule,'' DOE will follow a prescribed timeline for 
submitting a corrected rule to the Federal Register for publication.
    The Joint Advocates stated that, based on this definition, DOE 
should replace ``issuance'' with ``posting'' in these two instances in 
the error correction rule, namely, at 10 CFR 430.5(d)(3) (which 
describes the point by which evidence supporting an error correction 
request must be entered into the rulemaking record) and 10 CFR 
430.5(f)(3) (which describes the point by which DOE must receive a 
properly filed error correction request). The Joint Advocates asserted 
that the term ``issuance'' means publication in the Federal Register, 
which was not what DOE intended at those instances, but rather 
``posting.'' The Joint Advocates suggested that the language be 
corrected to avoid confusion. Joint Advocates Petition, No. 0006, at 3.
    Zero Zone commented that it generally disagreed with the Joint 
Advocates' Petition. Zero Zone, No. 0007, at 1. AHRI and AHAM commented 
that they agreed with the Joint Advocates that ``issuance'' of a final 
rule does not occur until publication in the Federal Register. AHRI-
AHAM, No. 0012, at 5.
    In response to the petition and comments, DOE is amending its error 
correction rule to clarify the point by which evidence supporting an 
error correction request must be in the rulemaking record (10 CFR 
430.5(d)(3)) and the point after which a properly filed error 
correction request is submitted to DOE (10 CFR 430.5(f)(3)). DOE is 
clarifying that these points are denoted by the posting date of the 
final rule. Making this change will help ensure that there is no 
confusion as to when the supporting evidence must be in the rulemaking 
record and after which a properly filed request is submitted. DOE notes 
that it is also clarifying 10 CFR 430.5(c)(3) to more clearly indicate 
that errors must be identified as provided in 10 CFR 430.5 and that DOE 
may make any necessary corrections in the regulatory text submitted to 
the Office of the Federal Register.

E. Evidence That May Be Relied Upon in Error Correction Requests and 
the Scope of the Administrative Record That Would Be Filed in Any Court 
Challenge to a Final Rule

    The error correction rule states that to substantiate an error 
correction request, the evidence relied upon must be evidence that is 
``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 the 
request.'' 10 CFR 430.5(d)(3). AHRI petitioned to broaden the scope of 
evidence that the Secretary could consider to include any new evidence. 
AHRI Petition, No. 0005, at 6. According to AHRI, there is no precedent 
for excluding ``new evidence.'' Id.
    In addition, the preamble to the error correction rule stated that 
DOE ``consider[ed] the record with respect to a rule subject to the 
error correction process [to be] closed upon the posting of the rule.'' 
81 FR at 26999. AHRI construed this sentence to mean that, in the event 
of a court challenge to a standards rule, no documents postdating the 
posting of a rule would be included in the administrative record filed 
in a court of appeals. AHRI Petition, No. 0005, at 9-10. AHRI argued 
that exclusion of such documents from an administrative record filed in 
court would be contrary to the Administrative Procedure Act. Id.
    Industry commenters agreed with AHRI's suggested approach. Zero 
Zone, No. 0007, at 1; AHAM, No. 0008, at 2; Lennox, No. 0009, at 1; 
AGA-APGA, No. 0010, at 1; Traulsen-Kairak, No. 0011, at 1. AHRI also 
commented that the Joint Advocates indirectly supported AHRI's 
Petition. According to AHRI, when the Joint Advocates stated that a 
final rule is not ``issued'' until it is published in the Federal 
Register, their statement supported AHRI's view that the rulemaking 
record is not yet closed when a rule is ``posted.'' AHRI-AHAM, No. 
0012, at 5.
    With respect to AHRI's distinct concern about the scope of the 
administrative record that would be filed in a court of appeals in the 
event of a challenge to a final standards rule published in the Federal 
Register, DOE notes that it did not intend for the preamble to the 
error correction rule to make any statements about the contents of such 
an administrative record. DOE clarifies that an administrative record 
filed in a court reviewing a final standards rule published in the 
Federal Register would include all documents that are required by law 
to be part of such a record, including (1) all properly filed error 
correction requests (including any supporting materials submitted to 
DOE); (2) DOE's responses to such requests; and (3) the final rule 
published in the Federal Register. DOE believes that this clarification 
addresses the concerns articulated by AHRI and others that the 
administrative record not be closed upon the posting of a standards 
rule. DOE emphasizes, however, that inclusion in the administrative 
record of supporting materials attached to an error correction request 
does not mean that DOE must substantively consider such materials. To 
the contrary, DOE is only obligated to consider such materials if they 
satisfy all regulatory requirements, including the requirements of 
Section 430.5(d)(3) discussed in this preamble.
    In DOE's view, the posting of an energy conservation standards rule 
signals the end of DOE's substantive analysis and decision-making 
regarding the applicable standards. The purpose of the error correction 
rule is to ensure that the legal requirements that regulated entities 
will need to meet--as detailed in the regulatory text of a given 
standards rule--accurately reflect that completed substantive analysis 
and decision-making. It is not possible for a regulation to be in 
error, as defined for purposes of the error correction rule, based on 
evidence first introduced after the substantive decision has been made. 
Accordingly, such a consideration would be beyond the scope of the 
error correction process that DOE has developed. It would, essentially, 
be akin to a request for reconsideration; the submitter would be 
arguing that, in light of additional evidence, DOE should alter its 
decision. For the reasons discussed elsewhere in this preamble, DOE 
declines to expand the scope of the error correction process to 
encompass requests for reconsideration of its standards rules on any 
ground.

F. DOE Responses to Error Correction Requests

    The error correction rule describes three potential options that 
could occur after the period for submitting error correction requests 
expires. See 10 CFR 430.5(f). First, if one or more ``properly filed 
requests'' are submitted and the Secretary determines that no 
correction is necessary, the Secretary has discretion on whether to 
provide a

[[Page 57752]]

written response. The Secretary may, for example, submit the final rule 
for Federal Register publication as posted, thereby effectively denying 
any requests. See 10 CFR 430.5(f)(1). Second, if no properly filed 
requests are submitted and the Secretary does not identify any errors, 
the Secretary will submit the final rule for publication as it was 
posted. See 10 CFR 430.5(f)(2). Finally, if the Secretary receives a 
properly filed request and determines that a correction is necessary, 
the Secretary will submit the final rule for publication with the 
correction included. See 10 CFR 430.5(f)(3).
    Several petitioners stated that DOE should provide a public 
response to requests for correction, regardless of whether the 
Secretary deems that any correction is merited. Hussmann Petition, No. 
0003, at 1; Lennox Petition, No. 0004, at 4; AHRI Petition, No. 0005, 
at 10. Hussmann stated that DOE should do so, either before or at the 
time of publication of a final rule in the Federal Register. Hussmann 
Petition, No. 0003, at 1. Lennox and AHRI stated that providing a 
response will promote transparency and should not take much additional 
time for DOE to prepare, assuming that DOE already analyzed any 
requests. Lennox Petition, No. 0004, at 4; AHRI Petition, No. 0005, at 
10. Lennox added that rejecting an error correction request through a 
non-response is not acceptable because petitioners incur real costs 
when submitting a request. Lennox Petition, No. 0004, at 4.
    Related to the Secretary's options under 10 CFR 430.5(f), 
petitioners made reference to a statement in the preamble to the error 
correction rule under the ``Publication in the Federal Register'' 
section. In particular, DOE indicated that there may be instances where 
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.'' 81 FR at 27002. Both Lennox and 
AHRI stated that, especially when an error is considered 
``insignificant'' by the Secretary, DOE should provide a public 
response not only to promote transparency but also to reduce subsequent 
litigation. AHRI argued that DOE should furnish a rationale or 
justification explaining why an error is deemed to be insignificant, 
while Lennox asserted that if DOE is mistaken about an error being 
insignificant and does not publish a response, the absence of a 
response could lead ``to unintended actions by stakeholders, including 
the exploitation of perceived loopholes.'' Lennox Petition, No. 0004, 
at 4; AHRI Petition, No. 0005, at 10.
    Most commenters generally agreed with the petitioners who urged DOE 
to provide a public response to requests for error correction, 
including when DOE deems an error to be ``insignificant.'' Zero Zone, 
No. 0007, at 1; AHAM, No. 0008, at 2; Lennox, No. 0009, at 1; AGA-APGA, 
No. 0010, at 2; Traulsen-Kairak, No. 0011, at 1.
    After giving careful consideration to this issue, DOE has decided 
to make public brief written indications of its handling of all 
properly-filed error correction requests. DOE will ordinarily summarize 
these indications in a single document. In DOE's view, the vast 
majority of cases in which it grants an error correction request are 
likely to involve a request that DOE correct a typographical error that 
appears in a posted, pre-publication version of a rule. In such cases, 
DOE's written indication addressing the request may note only that DOE 
made the requested change because the reason for the change may be 
readily apparent to the public. When requesters have sought to identify 
a potential error in a posted standards rule and DOE has decided not to 
make the requested change, an explanation as to why that correction 
request has not been adopted will usually be helpful in assisting the 
public with understanding DOE's reasoning, and DOE will provide a brief 
explanation in those circumstances. Accordingly, DOE is modifying the 
regulatory text under 10 CFR 430.5(f) to include a provision indicating 
that DOE will make available a brief written statement indicating the 
agency's treatment of the error correction requests it received. DOE 
expects to make such a statement available at around the same time it 
publishes the rule.

G. Notice and Comment

    In a separately filed comment, AHAM asked that the error correction 
final rule be treated as a proposed rule. It further asked that, upon 
granting the petition from AHRI, DOE seek stakeholder input in order to 
ensure that the next version of the error correction process does not 
suffer from the same deficiencies as the first version. AHAM Comments, 
No. 0008, at 2.
    As an initial matter, DOE notes that the error correction rule was 
published as a final rule and has already taken effect. Moreover, DOE 
is not required to provide the public with an opportunity to comment on 
the error correction rule or any amendments to that rule because it is 
a rule of agency procedure and practice. See 5 U.S.C. 553(b)(A). 
However, as indicated elsewhere in this document, DOE is amending the 
error correction rule in part to address some of the suggestions 
offered by both petitioners and commenters. Accordingly, interested 
members of the public have been afforded the opportunity to provide 
input into shaping the final version of the error correction rule being 
adopted in this document.

H. Response to Petitions Seeking Full Reconsideration Procedures

    AHRI's principal request is for DOE to replace the error correction 
rule with a process that ``provide[s] for the posting of a pre-
publication version of final rules under 42 U.S.C. 6293 and 6295 (and 
the corresponding provisions applicable to commercial equipment, 
sections 6313 and 6314) for a period of 60 days and allow[s] petitions 
for reconsideration under the APA during that prepublication period.'' 
AHRI Petition, No. 0005, at 2-3. Embedded in this request, it appears, 
are the following five suggested changes to the current error 
correction rule, all of which AHRI also separately requests, in the 
alternative, in the event that DOE denies its principal request: (1) 
Broaden the types of arguments that may be asserted in error correction 
requests to encompass any grounds for changing a rule, not just 
arguments identifying an ``error'' as defined in the current rule, id. 
at 3-6; (2) allow the introduction of evidence that is not in the 
rulemaking record to support error correction requests, id. at 6; (3) 
expand the error correction process to include errors appearing in 
Technical Support Documents and perhaps other parts of the regulatory 
record, id. at 12-13; (4) expand the error correction process to 
include rules establishing test procedures, id. at 7-8; and (5) extend 
the 30-day period for submitting error correction requests (prior to 
publication in the Federal Register) to 60 days (also prior to 
publication in the Federal Register),\4\ id. at 8-9. Lennox supported 
AHRI's principal request, as did other industry commenters. See Lennox 
Petition, No. 0004, at 2 (supporting ``a 60 day pre-publication 
period'' for ``Petitions for Reconsideration, as provided for under the 
[APA]''); AGA-APGA, No. 0010, at 1-2 (supporting pre-publication 
``petitions for

[[Page 57753]]

reconsideration, as provided for under the [APA]'' and including ``the 
full range of reconsideration petitions that the APA contemplates''); 
AHRI-AHAM, No. 0012, at 5 (reiterating AHRI's view that ``many of the 
main purposes articulated in the Final Rule are best met by allowing 
for a 60-day pre-publication period in which Petitions for 
Reconsideration, as provided for under the [APA], will be 
considered'').
---------------------------------------------------------------------------

    \4\ AHRI's request in the alternative pertaining to timing also 
argues that DOE could instead allow error correction requests to be 
submitted during the existing 30-day pre-publication period and 
continuing until the effective date of the rule, which follows 
publication in the Federal Register. AHRI Petition, No. 0005, at 8-
9; see also AGA-APGA, No. 0010, at 2.
---------------------------------------------------------------------------

    DOE has explained above why it is rejecting (in part) AHRI's second 
through fifth requests embedded in its principal suggestion. For the 
reasons explained below, DOE also rejects AHRI's first request embedded 
in its principal suggestion (and offered as a standalone request)--that 
DOE expand the error correction process to encompass requests alleging 
any grounds for changing a rule.
    DOE understands that the ``full'' reconsideration procedure that 
AHRI describes in its principal request, as well as in item 1 under its 
alternative request, would encompass the full range of issues germane 
to a given rulemaking. DOE has considered whether to adopt a 
reconsideration procedure along the lines suggested by AHRI. Given the 
practical implications of crafting an error correction process that 
would allow for full reconsideration of any factual or legal issue 
implicated by the rulemaking, as discussed in this preamble, DOE 
declines to broaden the error correction rule to permit petitions 
asserting any ground for changing a rule.
    As AHRI acknowledges, energy conservation rulemakings are an 
``enormous undertaking . . . in terms of time, effort and cost, both on 
the part of stakeholders and DOE.'' AHRI Petition, No. 0005, at 2. In 
addition, these rulemakings tend to involve an extensive opportunity 
for comment, both through written submissions in response to notices of 
proposed rulemaking and notices releasing additional technical 
information, as well as through oral participation at public meetings 
held by DOE. Adding a full reconsideration process, in which the 
Department would specifically review a further round of comment on any 
matter, would substantially increase the cost of energy conservation 
rulemakings and the length of time they take. See Lennox Petition, No. 
0004, at 5 (acknowledging that it is ``important to bring finality to a 
given rulemaking''). Meanwhile, in DOE's view, given the opportunities 
for public input that the process already provides, a mandatory general 
reconsideration period covering all topics would, in many instances, 
not significantly increase meaningful public participation in 
rulemakings.
    By contrast, DOE developed the error correction rule to invite 
public input on a narrow but challenging category of problems, namely 
errors that may occur in formulating the text of regulations and that, 
if left uncorrected, could result in standards that would be binding on 
regulated parties but would not accurately reflect DOE's judgment about 
the appropriate standard level. Obtaining public input on ``errors'' as 
defined by the rule is particularly valuable because, by their nature, 
such errors are inadvertent, and thus DOE is unaware of them. In 
addition, the narrow error correction rule helps avoid the possibility 
that DOE might inadvertently adopt an energy conservation without 
having determined that it meets the statutory standards. That is so 
because many ``errors'' (as defined by the error correction rule) may, 
if uncorrected, result in the promulgation of standards that DOE did 
not intend to adopt. For example, if DOE's calculations in the preamble 
to a final rule suggested that the standard for a given product should 
be set at one level, but a more stringent standard was inadvertently 
presented in the regulatory text, that standard would not have been the 
one DOE intended to adopt as being technologically feasible and 
economically justified. By contrast, a request to change a rule on a 
ground other than the identification of an ``error'' (as defined by the 
error correction rule) does not raise the possibility that DOE adopted 
a standard in the regulatory text without determining that it was 
technologically feasible and economically justified. Moreover, 
reviewing and responding to requests to correct errors as defined in 
the error correction rule should not be too burdensome because DOE will 
need to review only a limited scope of materials for each submission. 
Thus, the error correction rule is specifically tailored to address 
what the agency views as a critical class of inadvertent errors 
warranting the creation of an additional limited administrative process 
apart from the procedures already afforded by EPCA and the APA.
    In contrast, the full reconsideration process that AHRI suggests is 
not closely tailored to address this key problem and would represent a 
commitment by DOE to revisiting the entire rulemaking record in order 
to assess the particulars of any issue a person might raise in a 
reconsideration request. Because of the open-ended nature of such a 
process, DOE would need to provide interested persons with a period of 
time to submit reconsideration petitions that is longer than the 45-day 
period established by the error correction rule (as amended in this 
document). In addition, it would take DOE significantly more time to 
consider such petitions and to determine whether to change the rule in 
response to the petitions. Furthermore, DOE's preparation and issuance 
of a written response to any such reconsideration requests, as 
suggested by industry petitioners, would extend the process further. 
See AHRI Petition, No. 0005, at 3.
    DOE declines to extend its rulemaking procedures in that fashion. 
Many standards-setting rules are subject to a statutory deadline. See, 
e.g., 42 U.S.C. 6295(m)(1) (DOE must determine whether to amend an 
energy conservation standard for consumer products not later than six 
years after issuance of a final rule establishing or amending a 
standard); 42 U.S.C. 6295(m)(3)(A) (under which DOE must issue a rule 
within two years of the notice of proposed rulemaking for an amended 
standard); see also 42 U.S.C. 6316 (applying section 6295(m), including 
its two-year window, to a variety of industrial equipment-related 
energy conservation standards, including (1) electric motors and pumps, 
(2) commercial refrigerators, freezers, and refrigerator-freezers, (3) 
automatic commercial ice makers, (4) walk-in coolers and walk-in 
freezers, and (5) commercial clothes washers). Given the complexity of 
these rulemakings, these statutory deadlines are difficult to meet in 
current circumstances, which include considerable periods of time that 
lie outside of DOE's control. Trying to fit a broad reconsideration 
process within these already limited time periods would be even more 
difficult. The broader the issues available for review through an 
administrative reconsideration process, the greater the strain on 
departmental resources and the agency's ability to complete its 
portfolio of rulemaking proceedings within statutory deadlines. See 
Joint Advocates Petition, No. 0006, at 1-2. In addition, DOE takes the 
timelines in EPCA as signals of congressional concern that standards 
rulemakings should not be unnecessarily delayed. As the preamble to the 
error correction rule observed, postponing the publication of a 
standards rule in the Federal Register means delaying the benefits to 
consumers and to the economy that the new standard will achieve; and it 
prolongs the uncertainty for manufacturers about what the standard will 
eventually be. Accordingly, in

[[Page 57754]]

DOE's view, the benefits AHRI attributes to a full reconsideration 
option are limited and outweighed by the delay and resource strain that 
would follow from the implementation of such a reconsideration process.
    DOE also finds unpersuasive AHRI's argument that DOE must entertain 
pre-publication petitions for reconsideration alleging any grounds for 
changing a rule because ``5 U.S.C. 553(e) does not limit the grounds on 
which reconsideration can be pursued.'' AHRI Petition, No. 0005, at 5. 
Reliance on section 553(e) is inapposite here because DOE is not 
establishing the error correction process under this section. Through 
the error correction rule, DOE established a new procedure in addition 
to and independent of any statutory rights to petition for rulemaking 
afforded to persons under the APA and EPCA. See 5 U.S.C. 553(e) (``Each 
agency shall give an interested person the right to petition for the 
issuance, amendment, or repeal of a rule.''); 42 U.S.C. 6295(n) 
(``[A]ny person may petition the Secretary to conduct a rulemaking to 
determine for a covered product if the standards contained either in 
the last final rule required under subsections (b) through (i) of this 
section or in a final rule published under this section should be 
amended.''). To the extent that those authorities permit the filing of 
petitions seeking to change a rule, that option remains available to 
the public and is not superseded or limited by the error correction 
rule in any way. Thus, contrary to AHRI's position, DOE is not required 
by any statutory, regulatory, or other requirement to broaden the error 
correction procedure to encompass any ground for changing a standards 
rule. It is in DOE's sole discretion to determine the scope of the 
error correction procedure, and, for the reasons described in this 
preamble, the Department has reasonably concluded that this process 
should be limited to ``errors'' as defined in the rule. See Vermont 
Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 543-44 (1978) 
(``Absent constitutional constraints or extremely compelling 
circumstances the `administrative agencies ``should be free to fashion 
their own rules of procedure and to pursue methods of inquiry capable 
of permitting them to discharge their multitudinous duties.''''') 
(internal citations omitted).
    In its petition to amend the error correction rule, AHRI refers 
back to certain arguments raised in its brief to the Fifth Circuit in 
Lennox Int'l, Inc. v. U.S. Dep't. of Energy, No. 14-60535, concerning 
AHRI's underlying July 30, 2014 Petition for Reconsideration of DOE's 
Rule for Walk-In Coolers and Freezers (WICFs), Docket No. EERE-2010-BT-
STD-0003, and AHRI argues that DOE must respond to those legal 
arguments here in order to determine whether the pre-publication error 
correction process should be broadened to encompass requests to change 
a posted rule on any ground. See AHRI Petition, No. 0005, at 5 
(contending that DOE wrongly ``expressed the view in denying 
[reconsideration of] the walk in cooler/freezer rule that it lacked the 
power to grant reconsideration petitions''); see also id. (arguing that 
``DOE must . . . set[] out its current position as to what [Natural 
Resources Defense Council v. Abraham, 355 F.3d 179 (2d Cir. 2004),] 
says about DOE's EPCA reconsideration powers''). However, the relevant 
parts of DOE's denial of the petition for reconsideration of the Walk-
In Coolers and Freezers Rule and AHRI's subsequent Fifth Circuit brief 
dealt solely with the issue of DOE's authority to grant petitions for 
reconsideration filed after publication of a rule in the Federal 
Register and before its effective date. The legal arguments raised in 
that context have no bearing on the validity of DOE's rule establishing 
a process for correcting errors before publication in the Federal 
Register. Moreover, even if AHRI is correct that DOE has the authority 
to consider reconsideration petitions submitted after a rule is 
published in the Federal Register, it does not follow that DOE should 
expand the pre-publication error correction process to encompass 
petitions alleging any ground as a basis for changing a posted rule, 
which is a distinct question. Accordingly, DOE declines in this 
rulemaking to definitively resolve the legal arguments AHRI advanced in 
its Fifth Circuit brief regarding DOE's authority to consider petitions 
for reconsideration submitted after a rule is published in the Federal 
Register.
    AHRI argued in its Fifth Circuit brief in Lennox that 42 U.S.C. 
6295(o)(1)--which provides that DOE may not prescribe any amended 
standard that ``increases the maximum allowable energy use . . . or 
decreases the minimum required energy efficiency'' of a product--does 
not prevent DOE from reconsidering EPCA standards to make them less 
stringent when reconsideration is sought after publication in the 
Federal Register but before the effective date of the relevant rule. 
See AHRI Brief in Lennox, at 28-38. But see Natural Resources Defense 
Council v. Abraham, 355 F.3d 179 (2d Cir. 2004) (interpreting section 
6295(o)(1) as applying as of Federal Register publication of a 
standards rule); Joint Advocates, No. 0013, at 1 (same). As the 
preamble to the error correction rule noted, section 6295(o)(1) does 
not unambiguously indicate the relevant reference point (e.g., a 
publication in the Federal Register) for determining the ``maximum 
allowable energy use'' and the ``minimum required energy efficiency.'' 
81 FR at 27002.
    However, because DOE has established a pre-publication error 
correction procedure, DOE can leave for another day the questions AHRI 
has raised about DOE's authority to reconsider rules that have already 
been published in the Federal Register. That is so because, regardless 
of whether section 6295(o)(1) bars DOE from considering some or all 
reconsideration petitions submitted after Federal Register publication, 
section 6295(o)(1) does not bar DOE from correcting errors prior to 
publication in the Federal Register. See 81 FR 26998, 27002-27003 (May 
5, 2016) (discussing Sec.  430.5(g) of the error correction rule and 
why pre-publication error correction requests do not implicate EPCA's 
anti-backsliding provision).\5\ Indeed, neither AHRI nor any other 
petitioner or commenter has contended that the error correction rule is 
inconsistent with section 6295(o)(1).\6\
---------------------------------------------------------------------------

    \5\ To the extent that the preamble to the error correction rule 
could be construed as having definitively taken a position on 
whether the anti-backsliding provision is triggered by publication 
of final rule in the Federal Register, see 81 FR at 27002, DOE now 
clarifies that it meant to express the more limited proposition that 
the anti-backsliding provision permits the pre-publication 
correction of errors in the manner that the error correction rule 
establishes.
    \6\ AHRI ``note[s]'' that ``it would [be] just as consistent 
with DOE's construction of [section 6295(o)(1)] for DOE to allow for 
a process for full reconsideration (to any degree, of any aspect) of 
an energy conservation standard, as contrasted with the limited 
scope of the error correction rule''--i.e., to allow pre-publication 
petitions seeking to change a standards rule on any ground. AHRI 
Petition, No. 0005, at 6 (internal quotation marks omitted). 
Nonetheless, it is within DOE's discretion to determine the scope of 
the error correction procedure, and DOE has reasonably concluded 
that the procedure should be limited to ``errors'' as defined in the 
rule.
---------------------------------------------------------------------------

    Similarly, AHRI's Fifth Circuit brief in Lennox argued that 42 
U.S.C. 6295(n) does not bar DOE from making a standards rule less 
stringent in response to a petition for reconsideration filed after the 
rule was published in the Federal Register but before the effective 
date of the relevant rule. See AHRI Brief in Lennox, at 39-41. Section 
6295(n), which addresses ``[p]etition[s] for amended standards,'' 
applies to ``petition[s] . . . to conduct a rulemaking to determine . . 
. if the standards contained either in the last final rule required 
under [42 U.S.C.

[[Page 57755]]

6295(b)-(i)] or in a final rule published under [section 6295] should 
be amended.'' DOE need not, however, resolve the question raised in the 
Lennox briefs of whether section 6295(n) applies to post-publication 
reconsideration petitions because, regardless of whether section 
6295(n) applies to such petitions, 42 U.S.C. 6295(n) is not implicated 
by the pre-publication error correction procedures established under 
the error correction rule.
    That conclusion follows from the text of section 6295(n). DOE has, 
for the most part, already published the ``last final rule[s] 
required'' by subsections (b) through (i) of section 6295. Thus, for 
nearly all new standards rules for consumer products and for any 
standards applicable to commercial equipment, a petition under section 
6295(n) would be submitted under the second clause of that subsection, 
applicable to ``published'' rules. Regardless which clause of 6295(n) 
may be the basis for a rule (i.e., the ``required'' rules clause or the 
``published'' rules clause), DOE interprets that provision to apply no 
earlier than the date a rule is published in the Federal Register. 
Because error correction requests submitted pursuant to the error 
correction rule seeking to change a standard in a rule posted on DOE's 
Web site based on an ``error'' are filed before the rule is published 
in the Federal Register, such requests do not qualify as section 
6295(n) petitions. Section 6295(n) thus is irrelevant to whether DOE 
may consider and grant any given error correction request, and no 
petitioner or commenter (including AHRI) has argued to the contrary.\7\
---------------------------------------------------------------------------

    \7\ Accordingly, DOE rejects AHRI's argument that it ``must 
reject the 42 U.S.C. 6295(n) rationale it adopted'' when it denied 
reconsideration of the WICF rule. AHRI Petition, No. 0005, at 6. As 
explained in this document, 42 U.S.C. 6295(n) plainly does not apply 
to pre-publication error correction requests, and there is no need 
to substantively resolve in this rulemaking whether it applies to 
post-publication reconsideration petitions like the petition filed 
with respect to the WICF rule.
    For similar reasons, DOE rejects AHRI's suggestion that it must 
substantively resolve the argument AHRI advanced in its Lennox brief 
that DOE ``acted inconsistently with its own action on prior 
reconsideration petitions'' when it denied reconsideration of the 
WICF rule on the ground that it lacked authority to consider that 
petition. AHRI Petition, No. 0005, at 5. The alleged inconsistency 
concerns DOE's handling of reconsideration petitions submitted after 
rules are published in the Federal Register. See id. at 5 & n.3 
(citing DOE's actions on reconsideration petitions submitted after 
rules were published in the Federal Register). As explained above, 
there is no need to substantively resolve in this rulemaking how DOE 
responds to such post-publication reconsideration petitions. DOE's 
response to the submission at issue in the Lennox case nowhere 
suggested that DOE would be unable to establish a mechanism like the 
error correction process, as an exercise of its authority to engage 
in administrative and procedural rulemaking regarding its 
implementation of EPCA.
---------------------------------------------------------------------------

    As explained in this preamble, DOE has fully considered but is 
declining to adopt the full reconsideration procedure that AHRI 
suggests--irrespective of what DOE's legal authority to accept a post-
publication petition would be. Because resolution of those legal 
arguments is not determinative of DOE's basis for rejecting a full 
reconsideration procedure in the matter at hand, DOE declines to 
definitively resolve the questions AHRI raises about the Department's 
authority to reconsider rules that have already been published in the 
Federal Register and is reserving judgment until a more appropriate 
time on whether and, if so, to what extent it possesses the legal 
authority to create a reconsideration procedure after a rule's 
publication in the Federal Register. The Department notes, however, 
that, regardless of the exact point in time when the anti-backsliding 
provision in section 6295(o)(1) and the amendment provision in section 
6295(n) are triggered so as to have an impact on reconsideration 
requests, as DOE reads the provisions, they do not restrict DOE's 
correction of rules pursuant to the error correction process it has 
established. As such, DOE's error correction rule is consistent with 
both EPCA and the rationale expressed by DOE in its order denying 
AHRI's petition for reconsideration in the WICF rulemaking.
    It is DOE's position that a process to correct errors such as 
typographical mistakes or calculation errors can be resolved at the 
administrative level without causing an undue burden on agency 
resources or the agency's ability to comply with statutory deadlines. 
The error correction rule, as amended, reflects DOE's balancing between 
the resource-intensive rulemaking process and its ability to offer an 
additional administrative process to stakeholders that will reduce the 
need to pursue judicial review in instances where it is clear that the 
relevant standard in the posted rule is not the standard the agency had 
intended to select.
    DOE has carefully considered petitioners' request for a full 
reconsideration procedure but concludes that agency and stakeholder 
interests will be best served by a streamlined process for correcting 
the errors described in the amended error correction rule.\8\
---------------------------------------------------------------------------

    \8\ AHRI asserts various arguments about how DOE must respond to 
its petition to amend the error correction rule under two settlement 
agreements in Lennox Int'l, Inc. v. U.S. Dep't of Energy, No. 14-
60535 (5th Cir.). See AHRI Petition, No. 0005, at 2-5. DOE has 
complied with both settlement agreements because, inter alia, this 
document responding to petitions to amend the error correction rule 
``address[es]'' AHRI's request that DOE ``consider establishing a 
process for full reconsideration (to any degree, of any aspect) of 
an energy conservation standard.'' Joint Motion Embodying Further 
Settlement Agreement of All Parties for Dismissal Without Prejudice, 
Lennox Int'l Inc. v. U.S. Dep't of Energy, No. 14-60535 (5th Cir.) 
(filed April 28, 2016). Indeed, for the reasons identified in this 
document, DOE declines to adopt AHRI's principal suggestion for 
expanding the error correction rule, and DOE also rejects AHRI's 
related request that parties be permitted to assert any grounds for 
changing a rule in their error correction requests.
---------------------------------------------------------------------------

III. 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 further input on this rule--beyond that which has already been 
provided through the submitted petitions to amend and comments 
responding to them--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.

[[Page 57756]]

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 (August 10, 
1999), imposes certain requirements on Federal agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications. 
On March 14, 2000, DOE published a statement of policy 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 (February 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 (March 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

[[Page 57757]]

by each agency pursuant to general guidelines issued by OMB. OMB's 
guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's 
guidelines were published at 67 FR 62446 (October 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 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).

IV. Approval of the Office of the Secretary

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 August 10, 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 revised 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.
    Act means the Energy Policy and Conservation Act of 1975, 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:
    (i) A typographical mistake that causes the regulatory text to 
differ from how the preamble to the rule describes the rule;
    (ii) A calculation mistake that causes the numerical value of an 
energy conservation standard to differ from what technical support 
documents would justify; or
    (iii) A numbering mistake that causes a cross-reference to lead to 
the wrong text.
    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 submit a rule for publication in the 
Federal Register during 45 calendar days after posting 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 as defined in 10 CFR 430.5 before 
publication in the Federal Register. Readers are requested to notify 
the United States Department of Energy, by email at [EMAIL ADDRESS 
PROVIDED IN POSTED NOTICE], of any typographical or other errors, as 
described in such regulations, by no later than midnight on [DATE 45 
CALENDAR DAYS AFTER DATE OF POSTING OF THE DOCUMENT ON THE 
DEPARTMENT'S WEBSITE], in order that DOE may make any necessary 
corrections in the regulatory text submitted to the Office of the 
Federal Register for publication.

    (d) Request for correction. (1) A person 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 45 calendar days of the 
posting of the rule pursuant to paragraph (c)(1) 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. The request must also provide text that the requester argues 
would be a correct substitute. If a requester is unable to identify a 
correct substitute, the requester may submit a request that states that 
the requester is unable to determine what text would be correct and 
explains why the requester is unable to do so. 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 person'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

[[Page 57758]]

at the time of the rule's posting, which may include the preamble 
accompanying the rule. The Secretary will not consider new evidence 
submitted in connection with a request.
    (4) 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.
    (5) 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 pursuant to paragraph (c)(1) of this section.
    (2) If the Secretary receives no properly filed requests after 
posting 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 pursuant to paragraph (c)(1) of this section, to the Office of 
the Federal Register for publication. This will occur after the period 
prescribed by paragraph (c)(2) of this section has elapsed.
    (3) If the Secretary receives a properly filed request after 
posting a rule pursuant to (c)(1) 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 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.
    (6) When the Secretary submits a rule for publication, the 
Secretary will make publicly available a written statement indicating 
how any properly filed requests for correction were handled.
    (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 revised 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 of this chapter.

[FR Doc. 2016-19968 Filed 8-23-16; 8:45 am]
 BILLING CODE 6450-01-P