Procedures, Interpretations, and Policies for Consideration of New or Revised Energy Conservation Standards for Consumer Products, 59992-59997 [2017-27066]
Download as PDF
<![CDATA[
59992
Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Proposed Rules
without introducing any incremental
burdens or erecting barriers that would
restrict the ability of small entities to
compete in the market. This conclusion
is supported by the historic growth of
the organic industry without the
regulatory amendments. The demand
for organic food has continued to grow
over the past ten years under the current
regulatory regime.
This proposed rule would relieve
producers of the costs of complying
with the Organic Livestock and Poultry
Practices final rule. The effects would
be beneficial, but not significant. A
small number of entities may experience
time and money savings as a result of
not having to change practices to
comply with the OLPP final rule.
Affected small entities would include
organic egg and organic broiler
producers. The proposed rule would not
have a significant economic impact on
a substantial number of small entities.
Under these circumstances, the
Administrator of the Agricultural
Marketing Service has determined that
this action would not have a significant
economic impact on a substantial
number of small entities.
Pmangrum on DSK3GDR082PROD with PROPOSALS
VII. Executive Order 12988
Executive Order 12988 instructs each
executive agency to adhere to certain
requirements in the development of new
and revised regulations to avoid unduly
burdening the court system.
Pursuant to section 6519(f) of OFPA,
if finalized, this rule would not alter the
authority of the Secretary under the
Federal Meat Inspection Act (21 U.S.C.
601–624), the Poultry Products
Inspection Act (21 U.S.C. 451–471), or
the Egg Products Inspection Act (21
U.S.C. 1031–1056), concerning meat,
poultry, and egg products, nor any of
the authorities of the Secretary of Health
and Human Services under the Federal
Food, Drug, and Cosmetic Act (21 U.S.C.
301–399) or the Public Health Service
Act (42 U.S.C. 201–300), nor the
authority of the Administrator of the
U.S. Environmental Protection Agency
under the Federal Insecticide,
Fungicide, and Rodenticide Act (7
U.S.C. 136–136(y)).
VIII. Paperwork Reduction Act
No additional collection or
recordkeeping requirements would be
imposed on the public by withdrawing
the OLPP final rule. Accordingly, OMB
clearance is not required by the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501), Chapter 35. Withdrawing
the OLPP final rule will avoid an
estimated $1.95–$3.9 million in costs
for increased paperwork burden
associated with that final rule.
VerDate Sep<11>2014
15:21 Dec 15, 2017
Jkt 244001
IX. Executive Order 13175
DEPARTMENT OF ENERGY
This rule has been reviewed in
accordance with the requirements of
Executive Order 13175, ‘‘Consultation
and Coordination with Indian Tribal
Governments.’’ Executive Order 13175
requires Federal agencies to consult and
coordinate with tribes on a governmentto-government basis on policies that
have tribal implications, including
regulations, legislative comments or
proposed legislation, and other policy
statements or actions that have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
AMS has assessed the impact of this
rule on Indian tribes and determined
that this rule would not, to our
knowledge, have tribal implications that
require tribal consultation under E.O.
13175. If a Tribe requests consultation,
AMS will work with the Office of Tribal
Relations to ensure meaningful
consultation is provided where changes,
additions and modifications identified
herein are not expressly mandated by
Congress.
10 CFR Part 430
X. Civil Rights Impact Analysis
AMS has reviewed this draft rule in
accordance with the Department
Regulation 4300–4, Civil Rights Impact
Analysis, to address any major civil
rights impacts the rule might have on
minorities, women, and persons with
disabilities. AMS has determined that
withdrawing the OLPP final rule would
not affect producers in protected groups
differently than the general population
of producers.
XI. Conclusion
In compliance with USDA’s
interpretation of the OFPA and
consistent with USDA regulatory policy,
AMS is proposing to withdraw the
OLPP final rule.
Dated: December 14, 2017.
Bruce Summers,
Acting Administrator, Agricultural Marketing
Service.
[FR Doc. 2017–27316 Filed 12–15–17; 8:45 am]
BILLING CODE 3410–02–P
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
Procedures, Interpretations, and
Policies for Consideration of New or
Revised Energy Conservation
Standards for Consumer Products
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Request for information and
notification of public meeting.
AGENCY:
As part of its implementation
of, ‘‘Reducing Regulation and
Controlling Regulatory Costs,’’ (January
30, 2017) and, ‘‘Enforcing the
Regulatory Reform Agenda,’’ (Feb. 24,
2017), the Department of Energy (DOE)
is seeking comments and information
from interested parties to assist DOE in
identifying potential modifications to its
‘‘Process Rule’’ for the development of
appliance standards to achieve
meaningful burden reduction while
continuing to achieve the Department’s
statutory obligations in the development
of appliance standards. DOE will also
hold a public meeting to receive input
from interested parties on potential
improvements to the ‘‘Process Rule’’.
This RFI is the first in a series of steps
DOE is taking to consider modifications
to the ‘‘Process Rule.’’ Subsequently,
DOE expects to expeditiously publish
an ANPRM that will provide feedback
on the public comment received in
response to this notice and seek
additional information on potential
improvements to our process for
developing and promulgating energy
efficiency standards.
DATES: Written comments and
information are requested on or before
February 16, 2018. A public meeting
will be held on January 9, 2018.
ADDRESSES: The public meeting will
begin at 9:30 a.m., at the U.S.
Department of Energy, Forrestal
Building, Room 8E–089, 1000
Independence Avenue SW, Washington,
DC 20585.
Interested persons are encouraged to
submit comments, identified by
‘‘Process Rule RFI,’’ by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: Regulatory.Review@
hq.doe.gov. Include ‘‘Process Rule RFI’’
in the subject line of the message.
• Mail: U.S. Department of Energy,
Office of the General Counsel, 1000
Independence Avenue SW, Room
6A245, Washington, DC 20585.
SUMMARY:
E:\FR\FM\18DEP1.SGM
18DEP1
Pmangrum on DSK3GDR082PROD with PROPOSALS
Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Proposed Rules
Docket: For access to the docket to
read background documents, or
comments received, go to the Federal
eRulemaking Portal at https://
www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Caitlin Davis, U.S. Department of
Energy, Office of Energy Efficiency and
Renewable Energy, 1000 Independence
Avenue SW, Washington, DC 20585.
Email: Regulatory.Review@hq.doe.gov,
Phone: 202–586–6803.
SUPPLEMENTARY INFORMATION: On
January 30, 2017, the President issued
Executive Order 13771, ‘‘Reducing
Regulation and Controlling Regulatory
Costs.’’ That Order stated the policy of
the executive branch is to be prudent
and financially responsible in the
expenditure of funds, from both public
and private sources. The Order stated
that it is essential to manage the costs
associated with the governmental
imposition of private expenditures
required to comply with Federal
regulations. Additionally, on February
24, 2017, the President issued Executive
Order 13777, ‘‘Enforcing the Regulatory
Reform Agenda.’’ The Order required
the head of each agency to designate an
agency official as its Regulatory Reform
Officer (RRO). Each RRO is tasked with
overseeing the implementation of
regulatory reform initiatives and
policies to ensure that agencies
effectively carry out regulatory reforms,
consistent with applicable law. Further,
E.O. 13777 requires the establishment of
a regulatory task force at each agency.
The regulatory task force is required to
make recommendations to the agency
head regarding the repeal, replacement,
or modification of existing regulations,
consistent with applicable law.
To implement these Executive Orders,
the Department, among other actions,
issued a Request for Information (RFI)
seeking public comment on how best to
achieve meaningful burden reduction
while continuing to achieve the
Department’s regulatory objectives. 82
FR 24582 (May, 30, 2017). In response
to this RFI, the Department received a
number of comments pertaining to
DOE’s Procedures, Interpretations, and
Policies for Consideration of New or
Revised Energy Conservation Standards
for Consumer Products, codified at 10
CFR part 430, subpart C, appendix A.
Although DOE has declined to follow
them in a number of cases in the recent
past, DOE generally uses the procedures
set forth in the Process Rule to prescribe
energy conservation standards for both
consumer products and commercial
equipment pursuant to the Energy
Policy and Conservation Act of 1975
(Pub. L. 94–163, 42 U.S.C. 6291, et seq.
VerDate Sep<11>2014
15:21 Dec 15, 2017
Jkt 244001
‘‘EPCA’’) (EPCA). These procedures are
commonly referred to as the ‘‘Process
Rule’’. DOE’s objectives in establishing
these procedures include: (1) Providing
for early input from stakeholders; (2)
increasing predictability of the
rulemaking timetable; (3) increasing the
use of outside technical expertise; (4)
eliminating problematic design options
early in the process; (5) fully consider
non-regulatory approaches; (6)
conducting a thorough analysis of
impacts; (7) using transparent and
robust analytical methods; (8)
articulating policies to guide selection
of standards; and (9) supporting efforts
to build consensus on standards.
In this RFI, and through the public
meeting announced in the DATES
section, DOE seeks additional comments
and information on potential
improvements to the Process Rule. DOE
welcomes comment on all aspects of the
Process Rule that interested parties
believe could be improved, including
specific changes to the existing text of
appendix A to subpart C of part 430 or
other suggestions on how to accomplish
the suggested improvements. In the
paragraphs that follow, DOE also
provides a list of several issue areas on
which it is particularly interested in
receiving comments. DOE developed
these issue areas based on feedback
received in response to previous
regulatory reform efforts related to the
Process Rule. These efforts include
DOE’s recent regulatory reform RFI.
DOE also developed issue areas based
on changes in the law since the original
promulgation of the Process Rule, and
on DOE’s experience in promulgating
standards using the procedures set out
in the rule. The issues discussed in this
notice are not a comprehensive list of
the areas in which DOE is considering
reforms. DOE intends to provide
additional opportunities for public
feedback as DOE moves forward to
expeditiously effectuate improvements
to the Process Rule. DOE may also
consider various process and
methodological improvements separate
from those specific procedures
described in this document.
Issue Areas
A. Direct Final Rules
The Energy Independence and
Security Act of 2007 (EISA) (Pub. L.
110–140) amended EPCA, in relevant
part, to grant DOE authority to issue a
‘‘direct final rule’’ (DFR) to establish
energy conservation standards. (Direct
final rule is a term used generically to
describe a type of rulemaking
proceeding.) As amended, EPCA
establishes the requirements for DOE to
PO 00000
Frm 00006
Fmt 4702
Sfmt 4702
59993
use this type of rulemaking proceeding
for the issuance of certain actions.
Specifically, DOE may issue a DFR
adopting energy conservation standards
for a covered product upon receipt of a
joint proposal from a group of
‘‘interested persons that are fairly
representative of relevant points of
view,’’ provided DOE determines the
energy conservation standards
recommended in the joint proposal
conform with the requirements of 42
U.S.C. 6295(o). (42 U.S.C. 6295(p)(4)(A))
Simultaneous with the issuance of a
DFR, DOE must also issue a notice of
proposed rulemaking (NOPR)
containing the same energy
conservation standards in the DFR.
Following publication of the DFR, DOE
must solicit public comment for a
period of at least 110 days; then, not
later than 120 days after issuance of the
DFR, the Secretary must determine
whether any adverse comments ‘‘may
provide a reasonable basis for
withdrawing the DFR,’’ based on the
rulemaking record and specified
statutory provisions. (42 U.S.C.
6295(p)(4)(B), (C)(i)) Upon withdrawal,
the Secretary must proceed with the
rulemaking process under the NOPR
that was issued simultaneously with the
DFR and publish the reasons the DFR
was withdrawn. (42 U.S.C. 6295(C)(ii))
If the Secretary determines not to
withdraw the DFR, it becomes effective
as specified in the original issuance of
the DFR.
In response to a 2011 DFR in which
DOE established energy conservation
standards for residential furnaces,
central air conditioners, and heat
pumps, the American Public Gas
Association filed a petition for review in
the DC Circuit on December 23, 2011,
challenging the validity of the rule.
Various environmental and commercial
interest groups joined each side of the
case, reflecting various viewpoints. On
March 11, 2014, all parties filed a joint
motion presenting final terms of
settlement in the case (‘‘Joint Motion’’).
Pursuant to the Joint Motion, DOE
published an RFI on October 31, 2014
(‘‘October RFI’’) seeking public input on
several aspects of the DFR process. 79
FR 64705. In the October RFI, DOE
explained that it was conducting a
notice-and-comment proceeding to
clarify its interpretation and
implementation of certain aspects of the
DFR process and requested comment on
three issues: (1) When a joint statement
with recommendations related to an
energy or water conservation standard
would be deemed to have been
submitted by ‘‘interested persons that
are fairly representative of relevant
points of view,’’ thereby permitting use
E:\FR\FM\18DEP1.SGM
18DEP1
Pmangrum on DSK3GDR082PROD with PROPOSALS
59994
Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Proposed Rules
of the DFR mechanism; (2) the nature
and extent of ‘‘adverse comments’’ that
may provide the Secretary a reasonable
basis for withdrawing the DFR, leading
to further rulemaking under the
accompanying NOPR; and (3) what
constitutes the ‘‘recommended standard
contained in the statement,’’ and the
scope of any resulting DFR. Id. at 64706.
With respect to (2) concerning the
consideration of adverse comments,
DOE created a balancing test as part of
a 2011 DFR. 76 FR 37408, 37422 (June
27, 2011). DOE has used this test
consistently for DFRs it has issued to
date. In the balancing test, DOE
considers the substance of all adverse
comments received (rather than
quantity) and weighs them against the
anticipated benefits of the Consensus
Agreement and the likelihood that
further consideration of the comments
would change the results of the
rulemaking. As a result of this latter
consideration, DOE does not consider
adverse comments that had been
previously raised and addressed at an
earlier stage in the rulemaking
proceeding. DOE developed this
balancing test approach to managing
adverse comments to assist the
Secretary in determining whether the
comments provide a reasonable basis for
withdrawing the DFR.
Request for comment: DOE seeks
comment on whether to amend the
process rule to include provisions
related to the use of DFRs. The
development of DFRs by a
representative group of regulated
entities and other stakeholders can
achieve a number of the objectives set
out in the Process Rule, such as
providing for early input from
stakeholders and supporting efforts to
build consensus on standards. DOE
seeks comment on the balancing test
and what constitutes a change in results
of the standards or supporting analysis
that the agency should consider when
determining whether the comments
provide a reasonable basis for
withdrawing the DFR. To assist DOE in
the development of any appropriate
revisions, DOE also seeks further
comment on the three issues outlined
above from the October 2014 RFI. DOE
also seeks comment on what it means
for a statement to be submitted by
interested persons that are ‘‘fairly
representative of relevant points of
view.’’ DOE seeks comment on what
constitutes a relevant point of view and
whether DOE should ensure that all
relevant points of view have been taken
into account before using the EPCA
authority in 42 U.S.C. 6295(p)(4) to
issue a DFR. More generally, DOE seeks
comments on the strengths and
VerDate Sep<11>2014
15:21 Dec 15, 2017
Jkt 244001
weaknesses of using the DFR process to
promulgate energy conservation
standards.
B. Negotiated Rulemaking
Negotiated rulemaking is a process by
which an agency attempts to develop a
consensus proposal for regulation in
consultation with all interested parties
and before issuing a proposed rule.1 The
process allows an agency to address
salient comments from interested
parties prior to issuing a proposed rule.
Consequently, negotiated rulemaking
can yield better and more thoroughly
vetted outcomes and may in some
circumstances decrease the likelihood of
costly litigation. DOE uses negotiated
rulemakings as a means to engage the
public, gather data and information, and
attempt to reach consensus among
interested parties to advance the
rulemaking process.
In pursuit of the Department’s goal of
promoting negotiated rulemakings in
appropriate cases, DOE established the
Appliance Standards and Rulemaking
Federal Advisory Committee (ASRAC)
to comply with the Federal Advisory
Committee Act (FACA), Public Law No.
92–463 (1972) (codified at 5 U.S.C. App.
2). Generally speaking, FACA regulates
the formation and operation of advisory
committees by Federal agencies. The
Department meets all of the FACA
requirements for new advisory
committees including public notice and
a determination that the establishment
will be in the public interest, a clearly
defined purpose,2 membership that is
fairly balanced in terms of points of
view represented and the functions to
be performed, and meetings that are
open to public observation, subject to
the exceptions as provided in the
Government in the Sunshine Act (5
U.S.C. 552(b)).
As part of the DOE process, working
groups have been established for
specific products and one member from
the ASRAC committee attends the
meetings of a specific working group.
Ultimately, the working group reports to
ASRAC, and ASRAC itself votes on
whether to adopt a consensus
agreement. In each negotiated
1 This process is conducted in accordance with
the requirements of the Negotiated Rulemaking Act
(NRA), Public Law 104–320 (5 U.S.C. 561–570).
2 ASRAC was created as a discretionary advisory
committee to provide advice and recommendations
related to: (1) The development of minimum
efficiency standards for appliances and equipment,
(2) the development of product test procedures; (3)
the certification and enforcement of standards; (4)
the labeling for various appliances and equipment;
(5) specific issues of concern to DOE as requested
by the Secretary of Energy, the Assistant Secretary
for Energy Efficiency and Renewable Energy, and
DOE’s Building Technologies Office.
PO 00000
Frm 00007
Fmt 4702
Sfmt 4702
rulemaking proceeding, DOE includes a
process whereby the working group
discusses and votes on how to define
consensus. The Negotiated Rulemaking
Act (NRA) defines consensus for a
negotiated proceeding as being
unanimity unless the negotiating group
unanimously agrees to a different
definition. In the cases where the group
unanimously agrees to a different
definition other than unanimous
consensus, the selection of members to
the working group becomes even more
important. DOE’s role in the negotiated
rulemaking process is to provide
technical advice to the parties and
provide legal input where needed. DOE
also has a vote in the consensus process
among all of the parties of ASRAC.
In DOE’s experience with using
negotiated rulemaking, DOE has found
that the process allows real-time
adjustments to the analyses as the
working group is considering them, and
it allows disparate parties to negotiate
face-to-face regarding the terms of a
potential standard. Negotiated
rulemakings encourage manufacturers
in a more direct manner to provide data
to assist with the analysis which can
help to better account for manufacturer
concerns. It is important that agencies
encourage full public participation in
the process to ensure that the interests
of parties who would be significantly
affected by the rule are represented in
the negotiations leading up to the
proposed rule issued for public
comment. In particular, the Negotiated
Rulemaking Act (NRA) requires
agencies to determine, in determining
whether to proceed with a negotiated
rulemaking, that a negotiated
rulemaking committee can adequately
represent the interests that will be
significantly affected by a proposed
action. 5 U.S.C. 565(a). The NRA further
provides for agencies to use
‘‘convenors’’ to assist in identifying
persons who would be significantly
affected by a proposed rule, identifying
issues of concern to these persons, and
ascertaining whether establishment of a
negotiated rulemaking committee is
feasible and appropriate for a particular
rulemaking. 5 U.S.C. 563(b). Facilitators
can also be used to, as described in the
NRA, chair meetings and assist
members of the committee in
conducting discussions. The facilitator,
who cannot be a person designated to
represent the agency on substantive
issues, is to accomplish both of these
tasks in an impartial manner. 5 U.S.C.
566(c). DOE has in the past used
convenors and facilitators for some of its
negotiated rulemakings and found that
these individuals can assist DOE in
E:\FR\FM\18DEP1.SGM
18DEP1
Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Proposed Rules
Pmangrum on DSK3GDR082PROD with PROPOSALS
ensuring that relevant points of view are
represented in the development of any
particular rulemaking.
Request for comment: DOE seeks
comment on whether to amend the
Process Rule to include the use of
negotiated rulemaking in appropriate
cases. The use of negotiated rulemaking
can also achieve many of the objectives
of the Process Rule, such as providing
for early input from stakeholders;
increasing the use of outside technical
expertise and eliminating problematic
design options early in the process,
while exploring reasonable alternatives
for consideration, when manufacturers
and other interested parties can offer
and debate expertise, data and
information in real time as the rule is
developed; conducting a thorough
analysis of impacts for all alternatives
that may affect different stakeholders
differently and using transparent and
robust analytical methods, for the same
reasons; and supporting efforts to build
consensus on standards when
appropriate. DOE seeks comment on any
and all issues related to the use of
negotiated rulemaking in the
development of energy conservation
standards, including how DOE can
improve its current use of the process as
envisioned by the NRA. DOE
acknowledges the concern that relevant
parties or points of view must be
represented during the negotiations to
ensure the most appropriate outcome
and associated burden and distribution
of costs. In particular, DOE seeks
comment on whether the Process Rule
should be amended to provide for the
use of a convenor or facilitator for each
negotiated rulemaking. DOE also
requests comment on amendments to
the Process Rule that would ensure that
all reasonable alternatives are explored
in that process, including the option of
not amending or issuing a standard and
alternatives that will affect different
stakeholders differently. DOE also
requests comment on the use of the DFR
mechanism at the conclusion of a
negotiated rulemaking. (DFRs are
discussed in Section A.)
C. Elimination of the Statutory
Requirement for an Advance Notice of
Proposed Rulemaking; Inclusion of
Alternate Means To Gather Additional
Information Early in the Process
Throughout the Process Rule, there
are many provisions that reference an
Advance Notice of Proposed
Rulemaking (ANOPR) as a step in the
pre-NOPR process. Congress, however,
eliminated the statutory requirement
that DOE publish an ANOPR in
rulemakings to establish or amend
VerDate Sep<11>2014
15:21 Dec 15, 2017
Jkt 244001
energy conservation standards when it
enacted EISA.
DOE emphasizes that it highly values
public input early in the rulemaking
process. Such early input assists DOE in
determining whether new or amended
standards are necessary, determining
the scope of a particular rulemaking,
gaining an understanding of the current
market and current technologies, and
identifying potential issues with DOE’s
analyses. So, even though DOE no
longer has an obligation to issue an
ANOPR, DOE may continue to use the
ANOPR and other alternative
mechanisms to receive early input and
supplemental information from
stakeholders. Regarding alternative
mechanisms to receive early input, DOE
routinely provides early opportunities
for public input through Framework and
Preliminary Analysis documents,
Notices of Data Availability, and RFIs.
DOE welcomes as much participation
from as many stakeholders as possible
in the pre-NOPR stage of its rulemakings
to raise issues, provide data, and
critique DOE’s technical analyses, when
stakeholders determine that the need
exists.
In November 2010, DOE announced
certain changes on its website intended
to improve its rulemaking process in
appropriate circumstances. (See https://
energy.gov/gc/articles/doe-announceschanges-energy-conservation-standardsprocess.) One of these potential changes
was to, in appropriate circumstances,
eliminate these preliminary steps in
favor of issuing a proposed rule for
public comment as the first phase of the
rulemaking process. The 2010
announcement provided some examples
where DOE might issue a NOPR directly
including: (1) Instances where the
economic and technological data are
well known and understood; (2)
instances where the industry has
experienced little change since the last
rulemaking; and (3) instances where the
product being regulated has a long
history of rulemaking so it is anticipated
that there is little new data to collect.
Another example could be where DOE
determined that there was a timesensitivity in issuing the rulemaking.
DOE received comments in response
to its regulatory reform RFI that DOE
should not eliminate these early steps,
and that the circumstances enumerated
by DOE where it may be appropriate to
directly issue a NOPR are, instead,
indicators that insufficient time has
elapsed since the promulgation of a
prior standard to begin work on a new
standard. In such cases, the impacts of
the previous standard have not yet had
sufficient time to materialize so that
DOE could analyze them in determining
PO 00000
Frm 00008
Fmt 4702
Sfmt 4702
59995
whether to issue a new standard. These
commenters cautioned that DOE should
not rush to issue a proposed rule, but
should instead allow more time to
elapse so that the impacts of the
previous standard can be properly
evaluated in the pre-rule documents
DOE typically issues at the start of the
rulemaking process. DOE also received
comment suggesting that DOE amend
the Process Rule to require retrospective
review of current standards prior to
beginning work on a new standard, to
determine if the prior standard has
achieved the anticipated energy savings
and costs. Commenters also suggested
that DOE provide advanced notice of
planned data collection activities to
allow parties to contribute.
Request for comment: DOE seeks
comment on whether the Process Rule
should be revised to eliminate
references to mandatory use of an
ANOPR prior to issuing a proposed rule,
but maintain the ANOPR and/or include
any of the alternative pre-rule steps
discussed above. The alternative prerule steps could provide an alternate
means of achieving Process Rule
objectives including the provision of
early input from stakeholders;
increasing predictability of the
rulemaking timetable because regulated
entities could count on these steps being
taken; and eliminating problematic
design options early in the process,
conducting a thorough analysis of
impacts, and using transparent and
robust analytical methods, because
regulated entities and other stakeholders
would have more opportunity early in
the process to analyze and question
DOE’s data and analytical methods.
DOE could also modify the process rule
to incorporate greater use of these
additional data gathering tools without
eliminating the ANOPR provisions.
Additionally, DOE requests comment on
whether, and if so how, DOE should
perform a retrospective review of
current standards and associated costs
and benefits as part of any pre-rule
process.
D. Application of the Process Rule to
Commercial Equipment
When it was originally promulgated
in 1975, EPCA established a Federal
program consisting of test procedures,
labeling, and energy conservation
standards for covered consumer
products. Subsequent amendments to
EPCA included provisions for the
establishment of energy conservation
standards for certain types of
commercial equipment. For example,
the Energy Policy Act of 1992 (EPACT
1992) expanded the coverage of the
standards program to include certain
E:\FR\FM\18DEP1.SGM
18DEP1
59996
Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Proposed Rules
Pmangrum on DSK3GDR082PROD with PROPOSALS
commercial and industrial equipment,
including commercial heating and airconditioning equipment, water heaters,
certain incandescent and fluorescent
lamps, and electric motors. (Energy
Policy Act of 1992, Pub. L. 102–486
(1992)) EPACT 1992 also called for,
among other things, determination
analyses for small electric motors, highintensity discharge lamps, and
distribution transformers.
By its terms (and specifically by its
title), the Process Rule is applicable
only to consumer products. DOE has
routinely followed the procedures set
forth in the rule when establishing
standards for commercial equipment,
however, as there is no evident reason
why DOE would want to use different
procedures when establishing standards
for such equipment.
Request for comment: Should DOE
amend the Process Rule to clarify that
it is equally applicable to the
consideration of standards for
commercial equipment and to recognize
DOE’s current practice in applying the
requirements of the process rule to
commercial equipment? What would be
the advantages and disadvantages of
applying the Process Rule criteria to
commercial equipment? Such a revision
would help to ensure that Process Rule
objectives are also achieved in the
consideration of whether to develop or
amend standards for commercial
equipment.
E. Use of Industry Standards in DOE
Test Procedures
In the development of DOE test
procedures, DOE routinely considers the
test methods established in industry
standards and often adopts such
standards as the DOE test method but
has chosen in the past to alter these
standards for a variety of products and
equipment. DOE has asserted a number
of reasons for the modifications, such as
to increase repeatability and
reproducibility of the test method or
because an industry test method
provides, in DOE’s view, incomplete
information required for testing.
DOE received comments in response
to its regulatory reform RFI on the use
of industry standards in DOE test
procedures. Specifically, commenters
requested that DOE consider using the
industry standards, without
modification, as the DOE test procedure.
This approach could lead to process
efficiencies and ease the test burden on
manufacturers. DOE has also requested
comment on this approach in recent
RFIs for test procedures specific to a
given product, such as small electric
motors (82 FR 35468, July 31, 2017) and
General Service Fluorescent Lamps,
VerDate Sep<11>2014
15:21 Dec 15, 2017
Jkt 244001
General Service Incandescent Lamps,
Incandescent Reflector Lamps (82 FR
37031; Aug. 8, 2017).
Request for comment: DOE seeks
comment on whether to modify the
Process Rule to specify under what
circumstances DOE would consider
using the industry standard, without
modification, as the DOE test procedure
for a given product or equipment type.
For example, DOE could consider
adopting the industry standard
whenever the industry test method
meets the EPCA requirements of being
reasonably designed to produce test
results that measure energy efficiency,
energy use, water use, or estimated
annual operating cost of a covered
product during a representative average
use cycle or period of use, as
determined by the Secretary, and of
being not unduly burdensome to
conduct, and whenever any benefits to
using modified test methods are
outweighed by the increased burden on
manufacturers resulting from potential
changes to the industry test method.
Such a revision could achieve the
Process Rule objective of increasing the
use of outside technical expertise
because DOE would focus primarily on
the standard developed by industry, and
any changes to that standard would
occur only where the benefits
outweighed the burdens on
manufacturers.
F. Timing of the Issuance of DOE Test
Procedures; Certification, Compliance
and Enforcement; and Standards
Rulemakings
In response to DOE’s regulatory
reform RFI, commenters emphasized
that DOE should follow the Process
Rule, in particular with regard to the
timing of the issuance of final test
procedures and the commencement of a
standards rulemaking. The Process Rule
provides that final, modified test
procedures will be issued prior to the
notice of proposed rulemaking (NOPR)
on proposed standards. However, DOE
has argued in some rulemakings that it
was unable to meet this requirement
because, for example, DOE has not had
the resources to produce test procedures
on a schedule to meet the Process Rule
schedule requirement. In other
instances, DOE has stated that it lacked
the technical information and data it
needs to complete a given test
procedure on this timeline. There have
also been some instances where a test
procedure has been finalized, but new
data emerge during the standards
rulemaking showing the finalized test
procedure to be insufficient.
Commenters on DOE’s regulatory reform
RFI argue, however, that these reasons
PO 00000
Frm 00009
Fmt 4702
Sfmt 4702
counsel that DOE should, instead of
rushing to complete a standards
rulemaking, take the time and resources
needed to gather the necessary technical
information and develop the
appropriate test procedure prior to
commencing the standards rulemaking.
Commenters have also asserted that it is
necessary to finalize the test procedure
before beginning work on a standards
rulemaking to ensure that the effects of
the test procedure on compliance with
the standard can be analyzed, and to
ensure that commenters can provide
effective comments on both proposed
test procedures and standards rules.
Request for comment: DOE seeks
comment on whether the provisions of
the Process Rule regarding the issuance
of a final test procedure rule before
issuing a proposed standards rule
should be amended to further ensure
that the Department follows this process
in developing test procedures and
standards. For example, provisions
could be added regarding DOE’s
development of a schedule for
considering whether to amend a
particular standard, and that schedule
could include consideration of any test
procedure changes that would result in
the finalization of any changes prior to
issuance of the proposed standards rule.
Such a revision could achieve the
Process Rule objectives of providing for
early input from stakeholders, because
stakeholder input on the test procedure
would be fully developed prior to
issuance of any proposed standard. The
objective of increasing predictability of
the rulemaking timetable could also be
achieved through such a revision.
DOE also issues certification,
compliance, and enforcement
regulations for all product categories.
These rules are issued to ensure
consistency in certifying that the
residential, commercial and industrial
equipment meet DOE’s energy
conservation standards and that they
deliver the expected energy and cost
savings. DOE has in the past issued the
certification, compliance, and
enforcement rulemakings for groups of
product categories in one rulemaking as
opposed to individual product
categories in separate rulemakings.
These rules establish the frequency of
reporting of certification data to DOE as
well as verifying the testing method,
testing data, sample size, etc.
Request for comment: DOE seeks
comment on whether any new or
amended certification, compliance, and
enforcement rulemaking should be
proposed and finalized at the same time
as the energy efficiency standards so
that the agency can consider the full
compliance costs when choosing the
E:\FR\FM\18DEP1.SGM
18DEP1
Federal Register / Vol. 82, No. 241 / Monday, December 18, 2017 / Proposed Rules
energy efficiency standard levels. DOE
also seeks comment on how it could
incorporate any potential cost or benefit
impacts of the test procedure
requirements in the decision making for
the energy efficiency standard levels.
Pmangrum on DSK3GDR082PROD with PROPOSALS
G. Improvements to DOE’s Analyses
Commenters on DOE’s regulatory
reform RFI suggested various ways to
improve the analytical methods
described in the Process Rule, such as
enhancing the analysis of standards for
employment impacts and the
cumulative regulatory burden (e.g.,
providing for the development of
guidance on including cumulative
regulatory costs in analysis), the
consideration of repair versus
replacement dynamics, and improving
discount rates. Other commenters
suggested simplifying analytical
processes and models to improve
transparency.
Request for comment: DOE seeks
more specificity in the ways in which
the Process Rule could be amended to
improve DOE’s analyses and models,
and to achieve burden reduction and
increased transparency for regulated
entities and the public. DOE seeks
comment on how to make the analysis
and models more accessible to the
public by including improved
instructions, user manuals, plain
language descriptions, online tutorials,
or other means. DOE also seeks
comment on increasing the accuracy of
the projections made within the
analysis. Proposals should be geared to
achieving Process Rule objectives such
as increasing the use of outside
technical expertise; eliminating
problematic design options early in the
process; conducting a thorough analysis
of impacts (including social benefits and
costs, distribution of costs, projection of
technology progress and the associated
price forecasts); and using transparent
and robust analytical methods.
H. Other Issues
DOE also seek comment on topics not
addressed in the current Process Rule
and whether the Process Rule should be
amended to address these topics.
Should DOE consider adding to the
Process Rule criteria for ‘‘no amended
standards’’ determinations when
supported by data and when small
energy savings require significant
upfront cost to achieve?
Should DOE consider adding to the
Process Rule criteria for consideration of
voluntary, non-regulatory, and marketbased alternatives to standards-setting?
Should DOE consider adding to the
Process Rule criteria for consideration of
establishing for each covered product
VerDate Sep<11>2014
15:21 Dec 15, 2017
Jkt 244001
and equipment a baseline for energy
savings that qualify as not significant
and thus rendering revised energy
conservation standards not
economically justified?
Should DOE make its compliance
with the Process Rule mandatory?
DOE seeks comments and information
concerning the issue areas identified
above, as well as any other aspects of
the Process Rule that commenters
believe can be improved. The
Department notes that this RFI is issued
solely for information and programplanning purposes. While responses to
this RFI do not bind DOE to any further
actions related to the response, all
submissions will be made publically
available on www.regulations.gov.
Approval of the Office of the Secretary
The Secretary of Energy has approved
the publication of this document.
Issued in Washington, DC, on December 5,
2017.
Daniel R. Simmons,
Principal Deputy Assistant Secretary, Energy
Efficiency and Renewable Energy, U.S.
Department of Energy.
[FR Doc. 2017–27066 Filed 12–15–17; 8:45 am]
BILLING CODE 6450–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2017–0589; A–1–FRL–
9972–21-Region 1]
Air Plan Approval; VT; Nonattainment
New Source Review and Prevention of
Significant Deterioration Permit
Program Revisions; Infrastructure
Requirements for National Ambient Air
Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
several different revisions to the State
Implementation Plan (SIP) submitted to
EPA by the Vermont Department of
Environmental Conservation (VT DEC).
On May 23, 2017, Vermont submitted
revisions to EPA satisfying the VT DEC’s
earlier commitment to adopt and submit
revisions that meet certain requirements
of the federal Prevention of Significant
Deterioration (PSD) air permit program.
Vermont’s submission also included
revisions relating to the federal
nonattainment new source review
(NNSR) permit program. This action
proposes to approve those revisions and
also proposes to fully approve certain of
SUMMARY:
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
59997
Vermont’s infrastructure SIPs (ISIPs),
which were conditionally approved by
EPA on June 27, 2017. Additionally,
EPA is proposing to approve several
other minor regulatory changes to the
SIP submitted by VT DEC on May 23,
2017. This action is being taken in
accordance with the Clean Air Act.
DATES: Written comments must be
received on or before January 17, 2018.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2017–0589 at https://
www.regulations.gov, or via email to
wortman.eric@epa.gov. For comments
submitted at Regulations.gov,, follow
the online instructions for submitting
comments. Once submitted, comments
cannot be edited or removed from
Regulations.gov. For either manner of
submission, EPA may publish any
comment received to its public docket.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. Multimedia
submissions (audio, video, etc.) must be
accompanied by a written comment.
The written comment is considered the
official comment and should include
discussion of all points you wish to
make. EPA will generally not consider
comments or comment contents located
outside of the primary submission (i.e.,
on the web, cloud, or other file sharing
system). For additional submission
methods, please contact the person
identified in the FOR FURTHER
INFORMATION CONTACT section. For the
full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Eric
Wortman, Air Permits, Toxics, and
Indoor Programs Unit, U.S.
Environmental Protection Agency, EPA
New England Regional Office, 5 Post
Office Square—Suite 100, (Mail Code
OEP05–2), Boston, MA 02109–3912,
phone number (617) 918–1624, fax
number (617) 918–0624, email
wortman.eric@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
Table of Contents
I. Vermont’s May 23, 2017 SIP Submittal
Addressing EPA’s June 27, 2017
Conditional Approval Regarding PSD
Elements of Infrastructure SIPs
A. What is the background information for
EPA’s June 27, 2017 conditional
approval?
E:\FR\FM\18DEP1.SGM
18DEP1
]]>Agencies
[Federal Register Volume 82, Number 241 (Monday, December 18, 2017)]
[Proposed Rules]
[Pages 59992-59997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27066]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 430
Procedures, Interpretations, and Policies for Consideration of
New or Revised Energy Conservation Standards for Consumer Products
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Request for information and notification of public meeting.
-----------------------------------------------------------------------
SUMMARY: As part of its implementation of, ``Reducing Regulation and
Controlling Regulatory Costs,'' (January 30, 2017) and, ``Enforcing the
Regulatory Reform Agenda,'' (Feb. 24, 2017), the Department of Energy
(DOE) is seeking comments and information from interested parties to
assist DOE in identifying potential modifications to its ``Process
Rule'' for the development of appliance standards to achieve meaningful
burden reduction while continuing to achieve the Department's statutory
obligations in the development of appliance standards. DOE will also
hold a public meeting to receive input from interested parties on
potential improvements to the ``Process Rule''. This RFI is the first
in a series of steps DOE is taking to consider modifications to the
``Process Rule.'' Subsequently, DOE expects to expeditiously publish an
ANPRM that will provide feedback on the public comment received in
response to this notice and seek additional information on potential
improvements to our process for developing and promulgating energy
efficiency standards.
DATES: Written comments and information are requested on or before
February 16, 2018. A public meeting will be held on January 9, 2018.
ADDRESSES: The public meeting will begin at 9:30 a.m., at the U.S.
Department of Energy, Forrestal Building, Room 8E-089, 1000
Independence Avenue SW, Washington, DC 20585.
Interested persons are encouraged to submit comments, identified by
``Process Rule RFI,'' by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include ``Process
Rule RFI'' in the subject line of the message.
Mail: U.S. Department of Energy, Office of the General
Counsel, 1000 Independence Avenue SW, Room 6A245, Washington, DC 20585.
[[Page 59993]]
Docket: For access to the docket to read background documents, or
comments received, go to the Federal eRulemaking Portal at https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Caitlin Davis, U.S. Department of
Energy, Office of Energy Efficiency and Renewable Energy, 1000
Independence Avenue SW, Washington, DC 20585. Email:
[email protected], Phone: 202-586-6803.
SUPPLEMENTARY INFORMATION: On January 30, 2017, the President issued
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs.'' That Order stated the policy of the executive branch is to be
prudent and financially responsible in the expenditure of funds, from
both public and private sources. The Order stated that it is essential
to manage the costs associated with the governmental imposition of
private expenditures required to comply with Federal regulations.
Additionally, on February 24, 2017, the President issued Executive
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order
required the head of each agency to designate an agency official as its
Regulatory Reform Officer (RRO). Each RRO is tasked with overseeing the
implementation of regulatory reform initiatives and policies to ensure
that agencies effectively carry out regulatory reforms, consistent with
applicable law. Further, E.O. 13777 requires the establishment of a
regulatory task force at each agency. The regulatory task force is
required to make recommendations to the agency head regarding the
repeal, replacement, or modification of existing regulations,
consistent with applicable law.
To implement these Executive Orders, the Department, among other
actions, issued a Request for Information (RFI) seeking public comment
on how best to achieve meaningful burden reduction while continuing to
achieve the Department's regulatory objectives. 82 FR 24582 (May, 30,
2017). In response to this RFI, the Department received a number of
comments pertaining to DOE's Procedures, Interpretations, and Policies
for Consideration of New or Revised Energy Conservation Standards for
Consumer Products, codified at 10 CFR part 430, subpart C, appendix A.
Although DOE has declined to follow them in a number of cases in the
recent past, DOE generally uses the procedures set forth in the Process
Rule to prescribe energy conservation standards for both consumer
products and commercial equipment pursuant to the Energy Policy and
Conservation Act of 1975 (Pub. L. 94-163, 42 U.S.C. 6291, et seq.
``EPCA'') (EPCA). These procedures are commonly referred to as the
``Process Rule''. DOE's objectives in establishing these procedures
include: (1) Providing for early input from stakeholders; (2)
increasing predictability of the rulemaking timetable; (3) increasing
the use of outside technical expertise; (4) eliminating problematic
design options early in the process; (5) fully consider non-regulatory
approaches; (6) conducting a thorough analysis of impacts; (7) using
transparent and robust analytical methods; (8) articulating policies to
guide selection of standards; and (9) supporting efforts to build
consensus on standards.
In this RFI, and through the public meeting announced in the DATES
section, DOE seeks additional comments and information on potential
improvements to the Process Rule. DOE welcomes comment on all aspects
of the Process Rule that interested parties believe could be improved,
including specific changes to the existing text of appendix A to
subpart C of part 430 or other suggestions on how to accomplish the
suggested improvements. In the paragraphs that follow, DOE also
provides a list of several issue areas on which it is particularly
interested in receiving comments. DOE developed these issue areas based
on feedback received in response to previous regulatory reform efforts
related to the Process Rule. These efforts include DOE's recent
regulatory reform RFI. DOE also developed issue areas based on changes
in the law since the original promulgation of the Process Rule, and on
DOE's experience in promulgating standards using the procedures set out
in the rule. The issues discussed in this notice are not a
comprehensive list of the areas in which DOE is considering reforms.
DOE intends to provide additional opportunities for public feedback as
DOE moves forward to expeditiously effectuate improvements to the
Process Rule. DOE may also consider various process and methodological
improvements separate from those specific procedures described in this
document.
Issue Areas
A. Direct Final Rules
The Energy Independence and Security Act of 2007 (EISA) (Pub. L.
110-140) amended EPCA, in relevant part, to grant DOE authority to
issue a ``direct final rule'' (DFR) to establish energy conservation
standards. (Direct final rule is a term used generically to describe a
type of rulemaking proceeding.) As amended, EPCA establishes the
requirements for DOE to use this type of rulemaking proceeding for the
issuance of certain actions. Specifically, DOE may issue a DFR adopting
energy conservation standards for a covered product upon receipt of a
joint proposal from a group of ``interested persons that are fairly
representative of relevant points of view,'' provided DOE determines
the energy conservation standards recommended in the joint proposal
conform with the requirements of 42 U.S.C. 6295(o). (42 U.S.C.
6295(p)(4)(A)) Simultaneous with the issuance of a DFR, DOE must also
issue a notice of proposed rulemaking (NOPR) containing the same energy
conservation standards in the DFR. Following publication of the DFR,
DOE must solicit public comment for a period of at least 110 days;
then, not later than 120 days after issuance of the DFR, the Secretary
must determine whether any adverse comments ``may provide a reasonable
basis for withdrawing the DFR,'' based on the rulemaking record and
specified statutory provisions. (42 U.S.C. 6295(p)(4)(B), (C)(i)) Upon
withdrawal, the Secretary must proceed with the rulemaking process
under the NOPR that was issued simultaneously with the DFR and publish
the reasons the DFR was withdrawn. (42 U.S.C. 6295(C)(ii)) If the
Secretary determines not to withdraw the DFR, it becomes effective as
specified in the original issuance of the DFR.
In response to a 2011 DFR in which DOE established energy
conservation standards for residential furnaces, central air
conditioners, and heat pumps, the American Public Gas Association filed
a petition for review in the DC Circuit on December 23, 2011,
challenging the validity of the rule. Various environmental and
commercial interest groups joined each side of the case, reflecting
various viewpoints. On March 11, 2014, all parties filed a joint motion
presenting final terms of settlement in the case (``Joint Motion'').
Pursuant to the Joint Motion, DOE published an RFI on October 31,
2014 (``October RFI'') seeking public input on several aspects of the
DFR process. 79 FR 64705. In the October RFI, DOE explained that it was
conducting a notice-and-comment proceeding to clarify its
interpretation and implementation of certain aspects of the DFR process
and requested comment on three issues: (1) When a joint statement with
recommendations related to an energy or water conservation standard
would be deemed to have been submitted by ``interested persons that are
fairly representative of relevant points of view,'' thereby permitting
use
[[Page 59994]]
of the DFR mechanism; (2) the nature and extent of ``adverse comments''
that may provide the Secretary a reasonable basis for withdrawing the
DFR, leading to further rulemaking under the accompanying NOPR; and (3)
what constitutes the ``recommended standard contained in the
statement,'' and the scope of any resulting DFR. Id. at 64706.
With respect to (2) concerning the consideration of adverse
comments, DOE created a balancing test as part of a 2011 DFR. 76 FR
37408, 37422 (June 27, 2011). DOE has used this test consistently for
DFRs it has issued to date. In the balancing test, DOE considers the
substance of all adverse comments received (rather than quantity) and
weighs them against the anticipated benefits of the Consensus Agreement
and the likelihood that further consideration of the comments would
change the results of the rulemaking. As a result of this latter
consideration, DOE does not consider adverse comments that had been
previously raised and addressed at an earlier stage in the rulemaking
proceeding. DOE developed this balancing test approach to managing
adverse comments to assist the Secretary in determining whether the
comments provide a reasonable basis for withdrawing the DFR.
Request for comment: DOE seeks comment on whether to amend the
process rule to include provisions related to the use of DFRs. The
development of DFRs by a representative group of regulated entities and
other stakeholders can achieve a number of the objectives set out in
the Process Rule, such as providing for early input from stakeholders
and supporting efforts to build consensus on standards. DOE seeks
comment on the balancing test and what constitutes a change in results
of the standards or supporting analysis that the agency should consider
when determining whether the comments provide a reasonable basis for
withdrawing the DFR. To assist DOE in the development of any
appropriate revisions, DOE also seeks further comment on the three
issues outlined above from the October 2014 RFI. DOE also seeks comment
on what it means for a statement to be submitted by interested persons
that are ``fairly representative of relevant points of view.'' DOE
seeks comment on what constitutes a relevant point of view and whether
DOE should ensure that all relevant points of view have been taken into
account before using the EPCA authority in 42 U.S.C. 6295(p)(4) to
issue a DFR. More generally, DOE seeks comments on the strengths and
weaknesses of using the DFR process to promulgate energy conservation
standards.
B. Negotiated Rulemaking
Negotiated rulemaking is a process by which an agency attempts to
develop a consensus proposal for regulation in consultation with all
interested parties and before issuing a proposed rule.\1\ The process
allows an agency to address salient comments from interested parties
prior to issuing a proposed rule. Consequently, negotiated rulemaking
can yield better and more thoroughly vetted outcomes and may in some
circumstances decrease the likelihood of costly litigation. DOE uses
negotiated rulemakings as a means to engage the public, gather data and
information, and attempt to reach consensus among interested parties to
advance the rulemaking process.
---------------------------------------------------------------------------
\1\ This process is conducted in accordance with the
requirements of the Negotiated Rulemaking Act (NRA), Public Law 104-
320 (5 U.S.C. 561-570).
---------------------------------------------------------------------------
In pursuit of the Department's goal of promoting negotiated
rulemakings in appropriate cases, DOE established the Appliance
Standards and Rulemaking Federal Advisory Committee (ASRAC) to comply
with the Federal Advisory Committee Act (FACA), Public Law No. 92-463
(1972) (codified at 5 U.S.C. App. 2). Generally speaking, FACA
regulates the formation and operation of advisory committees by Federal
agencies. The Department meets all of the FACA requirements for new
advisory committees including public notice and a determination that
the establishment will be in the public interest, a clearly defined
purpose,\2\ membership that is fairly balanced in terms of points of
view represented and the functions to be performed, and meetings that
are open to public observation, subject to the exceptions as provided
in the Government in the Sunshine Act (5 U.S.C. 552(b)).
---------------------------------------------------------------------------
\2\ ASRAC was created as a discretionary advisory committee to
provide advice and recommendations related to: (1) The development
of minimum efficiency standards for appliances and equipment, (2)
the development of product test procedures; (3) the certification
and enforcement of standards; (4) the labeling for various
appliances and equipment; (5) specific issues of concern to DOE as
requested by the Secretary of Energy, the Assistant Secretary for
Energy Efficiency and Renewable Energy, and DOE's Building
Technologies Office.
---------------------------------------------------------------------------
As part of the DOE process, working groups have been established
for specific products and one member from the ASRAC committee attends
the meetings of a specific working group. Ultimately, the working group
reports to ASRAC, and ASRAC itself votes on whether to adopt a
consensus agreement. In each negotiated rulemaking proceeding, DOE
includes a process whereby the working group discusses and votes on how
to define consensus. The Negotiated Rulemaking Act (NRA) defines
consensus for a negotiated proceeding as being unanimity unless the
negotiating group unanimously agrees to a different definition. In the
cases where the group unanimously agrees to a different definition
other than unanimous consensus, the selection of members to the working
group becomes even more important. DOE's role in the negotiated
rulemaking process is to provide technical advice to the parties and
provide legal input where needed. DOE also has a vote in the consensus
process among all of the parties of ASRAC.
In DOE's experience with using negotiated rulemaking, DOE has found
that the process allows real-time adjustments to the analyses as the
working group is considering them, and it allows disparate parties to
negotiate face-to-face regarding the terms of a potential standard.
Negotiated rulemakings encourage manufacturers in a more direct manner
to provide data to assist with the analysis which can help to better
account for manufacturer concerns. It is important that agencies
encourage full public participation in the process to ensure that the
interests of parties who would be significantly affected by the rule
are represented in the negotiations leading up to the proposed rule
issued for public comment. In particular, the Negotiated Rulemaking Act
(NRA) requires agencies to determine, in determining whether to proceed
with a negotiated rulemaking, that a negotiated rulemaking committee
can adequately represent the interests that will be significantly
affected by a proposed action. 5 U.S.C. 565(a). The NRA further
provides for agencies to use ``convenors'' to assist in identifying
persons who would be significantly affected by a proposed rule,
identifying issues of concern to these persons, and ascertaining
whether establishment of a negotiated rulemaking committee is feasible
and appropriate for a particular rulemaking. 5 U.S.C. 563(b).
Facilitators can also be used to, as described in the NRA, chair
meetings and assist members of the committee in conducting discussions.
The facilitator, who cannot be a person designated to represent the
agency on substantive issues, is to accomplish both of these tasks in
an impartial manner. 5 U.S.C. 566(c). DOE has in the past used
convenors and facilitators for some of its negotiated rulemakings and
found that these individuals can assist DOE in
[[Page 59995]]
ensuring that relevant points of view are represented in the
development of any particular rulemaking.
Request for comment: DOE seeks comment on whether to amend the
Process Rule to include the use of negotiated rulemaking in appropriate
cases. The use of negotiated rulemaking can also achieve many of the
objectives of the Process Rule, such as providing for early input from
stakeholders; increasing the use of outside technical expertise and
eliminating problematic design options early in the process, while
exploring reasonable alternatives for consideration, when manufacturers
and other interested parties can offer and debate expertise, data and
information in real time as the rule is developed; conducting a
thorough analysis of impacts for all alternatives that may affect
different stakeholders differently and using transparent and robust
analytical methods, for the same reasons; and supporting efforts to
build consensus on standards when appropriate. DOE seeks comment on any
and all issues related to the use of negotiated rulemaking in the
development of energy conservation standards, including how DOE can
improve its current use of the process as envisioned by the NRA. DOE
acknowledges the concern that relevant parties or points of view must
be represented during the negotiations to ensure the most appropriate
outcome and associated burden and distribution of costs. In particular,
DOE seeks comment on whether the Process Rule should be amended to
provide for the use of a convenor or facilitator for each negotiated
rulemaking. DOE also requests comment on amendments to the Process Rule
that would ensure that all reasonable alternatives are explored in that
process, including the option of not amending or issuing a standard and
alternatives that will affect different stakeholders differently. DOE
also requests comment on the use of the DFR mechanism at the conclusion
of a negotiated rulemaking. (DFRs are discussed in Section A.)
C. Elimination of the Statutory Requirement for an Advance Notice of
Proposed Rulemaking; Inclusion of Alternate Means To Gather Additional
Information Early in the Process
Throughout the Process Rule, there are many provisions that
reference an Advance Notice of Proposed Rulemaking (ANOPR) as a step in
the pre-NOPR process. Congress, however, eliminated the statutory
requirement that DOE publish an ANOPR in rulemakings to establish or
amend energy conservation standards when it enacted EISA.
DOE emphasizes that it highly values public input early in the
rulemaking process. Such early input assists DOE in determining whether
new or amended standards are necessary, determining the scope of a
particular rulemaking, gaining an understanding of the current market
and current technologies, and identifying potential issues with DOE's
analyses. So, even though DOE no longer has an obligation to issue an
ANOPR, DOE may continue to use the ANOPR and other alternative
mechanisms to receive early input and supplemental information from
stakeholders. Regarding alternative mechanisms to receive early input,
DOE routinely provides early opportunities for public input through
Framework and Preliminary Analysis documents, Notices of Data
Availability, and RFIs. DOE welcomes as much participation from as many
stakeholders as possible in the pre-NOPR stage of its rulemakings to
raise issues, provide data, and critique DOE's technical analyses, when
stakeholders determine that the need exists.
In November 2010, DOE announced certain changes on its website
intended to improve its rulemaking process in appropriate
circumstances. (See https://energy.gov/gc/articles/doe-announces-changes-energy-conservation-standards-process.) One of these potential
changes was to, in appropriate circumstances, eliminate these
preliminary steps in favor of issuing a proposed rule for public
comment as the first phase of the rulemaking process. The 2010
announcement provided some examples where DOE might issue a NOPR
directly including: (1) Instances where the economic and technological
data are well known and understood; (2) instances where the industry
has experienced little change since the last rulemaking; and (3)
instances where the product being regulated has a long history of
rulemaking so it is anticipated that there is little new data to
collect. Another example could be where DOE determined that there was a
time-sensitivity in issuing the rulemaking.
DOE received comments in response to its regulatory reform RFI that
DOE should not eliminate these early steps, and that the circumstances
enumerated by DOE where it may be appropriate to directly issue a NOPR
are, instead, indicators that insufficient time has elapsed since the
promulgation of a prior standard to begin work on a new standard. In
such cases, the impacts of the previous standard have not yet had
sufficient time to materialize so that DOE could analyze them in
determining whether to issue a new standard. These commenters cautioned
that DOE should not rush to issue a proposed rule, but should instead
allow more time to elapse so that the impacts of the previous standard
can be properly evaluated in the pre-rule documents DOE typically
issues at the start of the rulemaking process. DOE also received
comment suggesting that DOE amend the Process Rule to require
retrospective review of current standards prior to beginning work on a
new standard, to determine if the prior standard has achieved the
anticipated energy savings and costs. Commenters also suggested that
DOE provide advanced notice of planned data collection activities to
allow parties to contribute.
Request for comment: DOE seeks comment on whether the Process Rule
should be revised to eliminate references to mandatory use of an ANOPR
prior to issuing a proposed rule, but maintain the ANOPR and/or include
any of the alternative pre-rule steps discussed above. The alternative
pre-rule steps could provide an alternate means of achieving Process
Rule objectives including the provision of early input from
stakeholders; increasing predictability of the rulemaking timetable
because regulated entities could count on these steps being taken; and
eliminating problematic design options early in the process, conducting
a thorough analysis of impacts, and using transparent and robust
analytical methods, because regulated entities and other stakeholders
would have more opportunity early in the process to analyze and
question DOE's data and analytical methods. DOE could also modify the
process rule to incorporate greater use of these additional data
gathering tools without eliminating the ANOPR provisions. Additionally,
DOE requests comment on whether, and if so how, DOE should perform a
retrospective review of current standards and associated costs and
benefits as part of any pre-rule process.
D. Application of the Process Rule to Commercial Equipment
When it was originally promulgated in 1975, EPCA established a
Federal program consisting of test procedures, labeling, and energy
conservation standards for covered consumer products. Subsequent
amendments to EPCA included provisions for the establishment of energy
conservation standards for certain types of commercial equipment. For
example, the Energy Policy Act of 1992 (EPACT 1992) expanded the
coverage of the standards program to include certain
[[Page 59996]]
commercial and industrial equipment, including commercial heating and
air-conditioning equipment, water heaters, certain incandescent and
fluorescent lamps, and electric motors. (Energy Policy Act of 1992,
Pub. L. 102-486 (1992)) EPACT 1992 also called for, among other things,
determination analyses for small electric motors, high-intensity
discharge lamps, and distribution transformers.
By its terms (and specifically by its title), the Process Rule is
applicable only to consumer products. DOE has routinely followed the
procedures set forth in the rule when establishing standards for
commercial equipment, however, as there is no evident reason why DOE
would want to use different procedures when establishing standards for
such equipment.
Request for comment: Should DOE amend the Process Rule to clarify
that it is equally applicable to the consideration of standards for
commercial equipment and to recognize DOE's current practice in
applying the requirements of the process rule to commercial equipment?
What would be the advantages and disadvantages of applying the Process
Rule criteria to commercial equipment? Such a revision would help to
ensure that Process Rule objectives are also achieved in the
consideration of whether to develop or amend standards for commercial
equipment.
E. Use of Industry Standards in DOE Test Procedures
In the development of DOE test procedures, DOE routinely considers
the test methods established in industry standards and often adopts
such standards as the DOE test method but has chosen in the past to
alter these standards for a variety of products and equipment. DOE has
asserted a number of reasons for the modifications, such as to increase
repeatability and reproducibility of the test method or because an
industry test method provides, in DOE's view, incomplete information
required for testing.
DOE received comments in response to its regulatory reform RFI on
the use of industry standards in DOE test procedures. Specifically,
commenters requested that DOE consider using the industry standards,
without modification, as the DOE test procedure. This approach could
lead to process efficiencies and ease the test burden on manufacturers.
DOE has also requested comment on this approach in recent RFIs for test
procedures specific to a given product, such as small electric motors
(82 FR 35468, July 31, 2017) and General Service Fluorescent Lamps,
General Service Incandescent Lamps, Incandescent Reflector Lamps (82 FR
37031; Aug. 8, 2017).
Request for comment: DOE seeks comment on whether to modify the
Process Rule to specify under what circumstances DOE would consider
using the industry standard, without modification, as the DOE test
procedure for a given product or equipment type. For example, DOE could
consider adopting the industry standard whenever the industry test
method meets the EPCA requirements of being reasonably designed to
produce test results that measure energy efficiency, energy use, water
use, or estimated annual operating cost of a covered product during a
representative average use cycle or period of use, as determined by the
Secretary, and of being not unduly burdensome to conduct, and whenever
any benefits to using modified test methods are outweighed by the
increased burden on manufacturers resulting from potential changes to
the industry test method. Such a revision could achieve the Process
Rule objective of increasing the use of outside technical expertise
because DOE would focus primarily on the standard developed by
industry, and any changes to that standard would occur only where the
benefits outweighed the burdens on manufacturers.
F. Timing of the Issuance of DOE Test Procedures; Certification,
Compliance and Enforcement; and Standards Rulemakings
In response to DOE's regulatory reform RFI, commenters emphasized
that DOE should follow the Process Rule, in particular with regard to
the timing of the issuance of final test procedures and the
commencement of a standards rulemaking. The Process Rule provides that
final, modified test procedures will be issued prior to the notice of
proposed rulemaking (NOPR) on proposed standards. However, DOE has
argued in some rulemakings that it was unable to meet this requirement
because, for example, DOE has not had the resources to produce test
procedures on a schedule to meet the Process Rule schedule requirement.
In other instances, DOE has stated that it lacked the technical
information and data it needs to complete a given test procedure on
this timeline. There have also been some instances where a test
procedure has been finalized, but new data emerge during the standards
rulemaking showing the finalized test procedure to be insufficient.
Commenters on DOE's regulatory reform RFI argue, however, that these
reasons counsel that DOE should, instead of rushing to complete a
standards rulemaking, take the time and resources needed to gather the
necessary technical information and develop the appropriate test
procedure prior to commencing the standards rulemaking. Commenters have
also asserted that it is necessary to finalize the test procedure
before beginning work on a standards rulemaking to ensure that the
effects of the test procedure on compliance with the standard can be
analyzed, and to ensure that commenters can provide effective comments
on both proposed test procedures and standards rules.
Request for comment: DOE seeks comment on whether the provisions of
the Process Rule regarding the issuance of a final test procedure rule
before issuing a proposed standards rule should be amended to further
ensure that the Department follows this process in developing test
procedures and standards. For example, provisions could be added
regarding DOE's development of a schedule for considering whether to
amend a particular standard, and that schedule could include
consideration of any test procedure changes that would result in the
finalization of any changes prior to issuance of the proposed standards
rule. Such a revision could achieve the Process Rule objectives of
providing for early input from stakeholders, because stakeholder input
on the test procedure would be fully developed prior to issuance of any
proposed standard. The objective of increasing predictability of the
rulemaking timetable could also be achieved through such a revision.
DOE also issues certification, compliance, and enforcement
regulations for all product categories. These rules are issued to
ensure consistency in certifying that the residential, commercial and
industrial equipment meet DOE's energy conservation standards and that
they deliver the expected energy and cost savings. DOE has in the past
issued the certification, compliance, and enforcement rulemakings for
groups of product categories in one rulemaking as opposed to individual
product categories in separate rulemakings. These rules establish the
frequency of reporting of certification data to DOE as well as
verifying the testing method, testing data, sample size, etc.
Request for comment: DOE seeks comment on whether any new or
amended certification, compliance, and enforcement rulemaking should be
proposed and finalized at the same time as the energy efficiency
standards so that the agency can consider the full compliance costs
when choosing the
[[Page 59997]]
energy efficiency standard levels. DOE also seeks comment on how it
could incorporate any potential cost or benefit impacts of the test
procedure requirements in the decision making for the energy efficiency
standard levels.
G. Improvements to DOE's Analyses
Commenters on DOE's regulatory reform RFI suggested various ways to
improve the analytical methods described in the Process Rule, such as
enhancing the analysis of standards for employment impacts and the
cumulative regulatory burden (e.g., providing for the development of
guidance on including cumulative regulatory costs in analysis), the
consideration of repair versus replacement dynamics, and improving
discount rates. Other commenters suggested simplifying analytical
processes and models to improve transparency.
Request for comment: DOE seeks more specificity in the ways in
which the Process Rule could be amended to improve DOE's analyses and
models, and to achieve burden reduction and increased transparency for
regulated entities and the public. DOE seeks comment on how to make the
analysis and models more accessible to the public by including improved
instructions, user manuals, plain language descriptions, online
tutorials, or other means. DOE also seeks comment on increasing the
accuracy of the projections made within the analysis. Proposals should
be geared to achieving Process Rule objectives such as increasing the
use of outside technical expertise; eliminating problematic design
options early in the process; conducting a thorough analysis of impacts
(including social benefits and costs, distribution of costs, projection
of technology progress and the associated price forecasts); and using
transparent and robust analytical methods.
H. Other Issues
DOE also seek comment on topics not addressed in the current
Process Rule and whether the Process Rule should be amended to address
these topics.
Should DOE consider adding to the Process Rule criteria for ``no
amended standards'' determinations when supported by data and when
small energy savings require significant upfront cost to achieve?
Should DOE consider adding to the Process Rule criteria for
consideration of voluntary, non-regulatory, and market-based
alternatives to standards-setting?
Should DOE consider adding to the Process Rule criteria for
consideration of establishing for each covered product and equipment a
baseline for energy savings that qualify as not significant and thus
rendering revised energy conservation standards not economically
justified?
Should DOE make its compliance with the Process Rule mandatory?
DOE seeks comments and information concerning the issue areas
identified above, as well as any other aspects of the Process Rule that
commenters believe can be improved. The Department notes that this RFI
is issued solely for information and program-planning purposes. While
responses to this RFI do not bind DOE to any further actions related to
the response, all submissions will be made publically available on
www.regulations.gov.
Approval of the Office of the Secretary
The Secretary of Energy has approved the publication of this
document.
Issued in Washington, DC, on December 5, 2017.
Daniel R. Simmons,
Principal Deputy Assistant Secretary, Energy Efficiency and Renewable
Energy, U.S. Department of Energy.
[FR Doc. 2017-27066 Filed 12-15-17; 8:45 am]
BILLING CODE 6450-01-P
