Energy Conservation Program: Definition for General Service Lamps, 46661-46676 [2019-18940]
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Federal Register / Vol. 84, No. 172 / Thursday, September 5, 2019 / Rules and Regulations
Dated: August 29, 2019.
Bruce Summers,
Administrator, Agricultural Marketing
Service.
Telephone: (202) 287–6122. Email:
celia.sher@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
[FR Doc. 2019–19090 Filed 9–4–19; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF ENERGY
10 CFR Part 430
RIN 1904–AE26
Energy Conservation Program:
Definition for General Service Lamps
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Final rules; withdrawal.
AGENCY:
On February 11, 2019, the
U.S. Department of Energy (DOE)
published a notice of proposed
rulemaking (NOPR) proposing to
withdraw the revised definitions of
general service lamp (GSL), general
service incandescent lamp (GSIL) and
other supplemental definitions, that
were to go into effect on January 1,
2020. DOE responds to comments
received on the NOPR in this final rule
and maintains the existing regulatory
definitions of GSL and GSIL, which are
the same as the statutory definitions of
those terms.
DATES: The final rules published on
January 19, 2017 (82 FR 7276 and 82 FR
7322), are withdrawn effective October
7, 2019.
ADDRESSES: The docket is available for
review at https://www.regulations.gov.
All documents in the docket are listed
in the https://www.regulations.gov index.
However, some documents listed in the
index may not be publicly available,
such as those containing information
that is exempt from public disclosure.
The docket web page can be found at:
https://www.regulations.gov/
docket?D=EERE-2018-BT-STD-0010.
The docket web page contains
instructions on how to access all
documents in the docket.
FOR FURTHER INFORMATION CONTACT:
Appliance Standards staff, U.S.
Department of Energy, Office of Energy
Efficiency and Renewable Energy,
Building Technologies, EE–2J, 1000
Independence Avenue SW, Washington,
DC 20585–0121. Telephone: (202) 287–
1445. Email: ApplianceStandards
Questions@ee.doe.gov.
Ms. Celia Sher, U.S. Department of
Energy, Office of the General Counsel,
GC–33, 1000 Independence Avenue SW,
Washington, DC 20585–0121.
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SUMMARY:
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I. Authority and Background
II. Synopsis of Final Rule
III. Discussion of Comments
A. Scope of Products Included in the
Definitions of GSIL and GSL
1. Imposition of the Backstop
2. EPCA’s Anti-Backsliding Provision
B. Withdrawal of Revised GSL and GSIL
Definitions
1. General Authority
2. Five Specialty Incandescent Lamps
3. Incandescent Reflector Lamps
4. T-Shape, B, BA, CA, F, G16–1/2, G25,
G30, S, M–14 and Candelabra Base
Lamps
5. Supplemental Definitions
C. Additional Issues
1. Preemption
2. Manufacture Date in Lieu of Sales
Prohibition
3. Consumer/Environmental Harm
4. Data
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
and 13563
B. Review Under Executive Order 13771
1. Analytical Approach
2. Cost Estimate
3. Results
C. Review Under the Regulatory Flexibility
Act
D. Review Under the Paperwork Reduction
Act of 1995
E. Review Under the National
Environmental Policy Act of 1969
F. Review Under Executive Order 13132
G. Review Under Executive Order 12988
H. Review Under the Unfunded Mandates
Reform Act of 1995
I. Review Under the Treasury and General
Government Appropriations Act, 1999
J. Review Under Executive Order 12630
K. Review Under the Treasury and General
Government Appropriations Act, 2001
L. Review Under Executive Order 13211
M. Congressional Notification
V. Approval of the Office of the Secretary
I. Authority and Background
Title III, Part B of the Energy Policy
and Conservation Act of 1975 (EPCA or
the Act), Public Law 94–163 (42 U.S.C.
6291–6309, as codified), established the
Energy Conservation Program for
Consumer Products Other Than
Automobiles, a program covering most
major household appliances
(collectively referred to as ‘‘covered
products’’), which includes general
service lamps (GSLs), the subject of this
final rule. Amendments to EPCA in the
Energy Independence and Security Act
of 2007 (EISA) directed DOE to conduct
two rulemaking cycles to evaluate
energy conservation standards for GSLs.
(42 U.S.C. 6295(i)(6)(A)–(B)) GSLs are
currently defined in EPCA to include
general service incandescent lamps
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(GSILs), compact fluorescent lamps
(CFLs), general service light-emitting
diode (LED) lamps and organic lightemitting diode (OLED) lamps, and any
other lamps that the Secretary of Energy
(Secretary) determines are used to
satisfy lighting applications
traditionally served by general service
incandescent lamps. (42 U.S.C.
6291(30)(BB))
For the first rulemaking cycle,
Congress instructed DOE to initiate a
rulemaking process prior to January 1,
2014, to consider two questions: (1)
Whether to amend energy conservation
standards for general service lamps and
(2) whether ‘‘the exemptions for certain
incandescent lamps should be
maintained or discontinued.’’ (42 U.S.C.
6295(i)(6)(A)(i)) Further, if the Secretary
determines that the standards in effect
for GSILs should be amended, EPCA
provides that a final rule must be
published by January 1, 2017, with a
compliance date at least 3 years after the
date on which the final rule is
published. (42 U.S.C. 6295(i)(6)(A)(iii))
In developing such a rule, DOE must
consider a minimum efficacy standard
of 45 lumens per watt (lm/W). (42
U.S.C. 6295(i)(6)(A)(ii)) If DOE fails to
complete a rulemaking in accordance
with 42 U.S.C. 6295(i)(6)(A)(i)–(iv) or a
final rule from the first rulemaking cycle
does not produce savings greater than or
equal to the savings from a minimum
efficacy standard of 45 lm/W, the statute
provides a ‘‘backstop’’ under which
DOE must prohibit sales of GSLs that do
not meet a minimum 45 lm/W standard
beginning on January 1, 2020. (42 U.S.C.
6295(i)(6)(A)(v))
The EISA-prescribed amendments
further directed DOE to initiate a second
rulemaking cycle by January 1, 2020, to
determine whether standards in effect
for GSILs should be amended with
more-stringent requirements and if the
exemptions for certain incandescent
lamps should be maintained or
discontinued. (42 U.S.C. 6295(i)(6)(B)(i))
For this second review of energy
conservation standards, the scope is not
limited to incandescent lamp
technologies. (42 U.S.C. 6295(i)(6)(B)(ii))
DOE initiated the first GSL standards
rulemaking process by publishing in the
Federal Register a notice of public
meeting and availability of the
framework document. 78 FR 73737
(Dec. 9, 2013); see also 79 FR 73503
(Dec. 11, 2014) (notice of public meeting
and availability of preliminary technical
support document). DOE later issued a
NOPR to propose amended energy
conservation standards for GSLs. 81 FR
14528, 14629–14630 (Mar. 17, 2016)
(the March 2016 NOPR). The March
2016 NOPR focused on the first question
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that Congress directed DOE to
consider—whether to amend energy
conservation standards for general
service lamps. (42 U.S.C.
6295(i)(6)(A)(i)(I)) In the March 2016
NOPR proposing energy conservation
standards for GSLs, DOE stated that it
would be unable to undertake any
analysis regarding GSILs and other
incandescent lamps because of a then
applicable congressional restriction (the
Appropriations Rider) 1 on the use of
appropriated funds to implement or
enforce 10 CFR 430.32(x). 81 FR 14528,
14540–14541 (Mar. 17, 2016). Notably,
the Appropriations Rider was readopted
and extended continuously in multiple
subsequent legislative actions, and only
expired on May 5, 2017, when the
Consolidated Appropriations Act of
2017 was enacted.2
In response to comments to the March
2016 NOPR, DOE conducted additional
research and published a notice of
proposed definition and data
availability (NOPDDA), which proposed
to amend the definitions of GSIL and
GSL. 81 FR 71794, 71815 (Oct. 18,
2016). DOE explained that the October
2016 NOPDDA related to the second
question that Congress directed DOE to
consider—whether ‘‘the exemptions for
certain incandescent lamps should be
maintained or discontinued,’’ and stated
explicitly that the NOPDDA was not a
rulemaking to establish an energy
conservation standard for GSLs. (42
U.S.C. 6295(i)(6)(A)(i)(II)); see also 81
FR 71798. The relevant ‘‘exemptions,’’
DOE explained, referred to the 22
categories of incandescent lamps that
are statutorily excluded from the
definitions of GSIL and GSL. 81 FR
71798. In the NOPDDA, DOE clarified
that it was defining what lamps
constitute GSLs so that manufacturers
could understand how any potential
energy conservation standards might
apply to the market. Id.
On January 19, 2017, DOE published
two final rules concerning the definition
of GSL. 82 FR 7276; 82 FR 7322. The
January 2017 definition final rules
amended the definitions of GSIL and
GSL by bringing certain categories of
lamps that had been excluded by statute
1 Section 312 of the Consolidated and Further
Continuing Appropriations Act, 2016 (Pub. L. 114–
113, 129 Stat. 2419) prohibits expenditure of funds
appropriated by that law to implement or enforce:
(1) 10 CFR 430.32(x), which includes maximum
wattage and minimum rated lifetime requirements
for GSILs; and (2) standards set forth in section
325(i)(1)(B) of EPCA (42 U.S.C. 6295(i)(1)(B)),
which sets minimum lamp efficiency ratings for
incandescent reflector lamps.
2 See, the Consolidated Appropriations Act of
2017 (Pub. L. 115–31, div. D, tit. III); see also,
Consolidated Appropriations Act, 2018 (Pub. L.
115–141).
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from the definition of GSIL within the
definitions of GSIL and GSL. Like the
October 2016 NOPDDA, DOE stated that
the January 2017 definition final rules
related only to the second question that
Congress directed DOE to consider,
regarding whether to maintain or
discontinue certain ‘‘exemptions.’’ (42
U.S.C. 6295(i)(6)(A)(i)(II)). That is,
neither of the two final rules issued on
January 19, 2017, established, or even
purported to establish, energy
conservation standards applicable to
GSLs. Although the two final rules were
published on January 19, 2017, neither
rule has yet gone into effect because the
effective date was set as January 1, 2020.
With the removal of the
Appropriations Rider in the
Consolidated Appropriations Act, 2017,
DOE was no longer restricted from
undertaking the analysis and decision
making required to address the first
question presented by Congress, i.e.,
whether to amend energy conservation
standards for general service lamps,
including GSILs. Thus, on August 15,
2017, DOE published a notice of data
availability and request for information
(NODA) seeking data for GSILs and
other incandescent lamps. 82 FR 38613.
The purpose of this NODA was to assist
DOE in making a decision on the first
question posed to DOE by Congress; i.e.,
a determination regarding whether
standards for GSILs should be amended.
Comments submitted in response to the
NODA also led DOE to re-consider the
decisions it had already made with
respect to the second question presented
to DOE; i.e., whether the exemptions for
certain incandescent lamps should be
maintained or discontinued. As a result
of the comments received in response to
the NODA, DOE also re-assessed the
legal interpretations underlying certain
decisions made in the January 2017
definition final rules. Accordingly, DOE
issued a NOPR on February 11, 2019 to
withdraw the revised definitions of
GSL, GSIL, and the supporting
definitions established in the January
2017 definition rules (the February 2019
NOPR). 84 FR 3120. DOE held a public
meeting on February 28, 2019 to hear
oral comments and solicit information
and data relevant to the February 2019
NOPR.
The following sections of this
preamble respond to comments received
on the February 2019 NOPR and during
the NOPR public meeting.
II. Synopsis of Final Rule
In this rule, DOE withdraws the
revised definitions of GSL and GSIL
established in the January 2017
definition final rules which would
otherwise take effect on January 1, 2020.
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These definitions included certain
GSILs as GSLs in a manner that is not
consistent with the best reading of the
statute. Additionally, DOE withdraws
the supplemental definitions
established in the January 2017
definition final rules that are no longer
necessary in light of the withdrawal of
the revised definitions of GSL and GSIL.
This rule maintains the existing
definitions of GSL and GSIL currently
found in DOE’s regulations, which are
the same as the statutory definition of
those terms. Specifically, the rule
maintains the statutory exclusions of
specified lamps from the definition of
GSIL, and thus, such lamps would not
be GSLs. DOE does not make a
determination in this rule whether
standards for GSLs, including GSILs,
should be amended. Rather, this rule
establishes the scope of lamps to be
considered in that determination. DOE
will make that determination in a
separate rulemaking.
III. Discussion of Comments
A. Scope of Products Included in the
Definitions of GSIL and GSL
In the February 2019 NOPR, DOE
proposed to retain the existing statutory
exclusions from the GSIL definition by
withdrawing the revised definition of
GSL, which, among other lamps,
included as GSILs the five specialty
incandescent lamps regulated under 42
U.S.C. 6295(l)(4), namely rough service
lamps, vibration service lamps, 3-way
incandescent lamps, high lumen lamps
and shatter-resistant lamps.
Additionally, DOE proposed to maintain
the existing exclusion of incandescent
reflector lamps (IRLs) from the statutory
definitions of GSIL and GSL, as well as
T-shape lamps that use no more than 40
W or have a length of more than 10
inches, B, BA, CA, F, G16–1/2, G25,
G30, S, and M–14 lamps of 40 W or less.
Further, DOE proposed that candelabra
base incandescent lamps not be
considered GSL because the existing
definition of GSIL applies only to
medium screw base lamps. 84 FR 3122–
3123. DOE noted in the February 2019
NOPR that, because it had not yet made
a final determination on whether
standards applicable to GSILs should be
amended per 42 U.S.C. 6295(i)(6)(A)(iii),
no backstop energy conservation
standard has been imposed. 81 FR 3123.
In response, DOE received numerous
comments relating to whether the
backstop requirement for GSLs in 42
U.S.C. 6295(i)(6)(A)(v) had been
triggered and the applicability of
EPCA’s anti-backsliding provision in 42
U.S.C. 6295(o), which precludes DOE
from amending an existing energy
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conservation standard to permit greater
energy use or a lesser amount of energy
efficiency.
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1. Imposition of the Backstop
DOE received comments from the
National Electrical Manufacturers
Association (NEMA), Westinghouse
Lighting, Signify North America
Corporation (Signify), GE Lighting, and
the American Lighting Association
(ALA) agreeing with DOE’s statement in
the February 2019 NOPR that the
backstop standard in 42 U.S.C.
6295(i)(6)(A)(v) has not been triggered
since the Secretary has not determined
whether to amend GSIL standards under
42 U.S.C. 6295(i)(6)(A)(iii), and so there
is no obligation yet to publish a rule in
accordance with the 42 U.S.C.
6295(i)(6)(A)(i)–(iv). (NEMA, No. 329 at
p. 40; Westinghouse Lighting, No. 360 at
p. 1; Signify, No. 354 at p. 1; GE
Lighting, No. 325 at p. 1; ALA, No. 308
at p. 2) Further, these commenters
supported NEMA’s assertion that the
backstop is not self-executing, and, per
EPCA, requires the Secretary to first
make a prohibitory order under 42
U.S.C. 6295(i)(6)(A)(v), which the
Secretary has not yet done because the
conditions precedent to that prohibitory
order in 42 U.S.C. 6295(i)(6)(A)(v) have
not occurred. That is, NEMA asserted
that the Secretary has not failed to
complete a rulemaking in accordance
with clauses (i) through (iv) or that such
final rule does not produce savings that
are greater than or equal to the savings
from a minimum efficacy standard of 45
lm/W because the obligation to issue
such a rule does not yet exist. (NEMA,
No. 329 at p. 40)
There were also commenters who
disagreed with DOE’s preliminary
determination in the February 2019
NOPR regarding the application of the
backstop. Such commenters include
Earthjustice, the Natural Resources
Defense Council (NRDC), Sierra Club,
U.S. Public Interest Research Group and
Environment America (collectively, the
Joint Commenters), the Appliance
Standards Awareness Project and 13 cosigning organizations 3 (ASAP), the
California Energy Commission (CEC),
Pacific Gas and Electric Company
(PG&E) and San Diego Gas and Electric
3 These co-signing organizations are the:
American Council for an Energy Efficient Economy,
Conservation Law Foundation, Consumer
Federation of America, E4TheFuture, Florida
Consumer Action Network, National Consumer Law
Center, Natural Resources Defense Council,
Northeast Energy Efficiency Partnerships, Southeast
Energy Efficiency Alliance, Southwest Energy
Efficiency Alliance, Texas Ratepayers Organization
to Save Energy, Vermont Energy Investment
Corporation, and Vermont Public Interest Research
Group.
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(SDG&E), and the Attorney Generals of
California, New York, New Jersey,
Oregon, Colorado, Connecticut, Illinois,
Maine, Maryland, Michigan, Minnesota,
North Carolina, Vermont, Washington,
the Commonwealth of Massachusetts,
the District of Columbia and the City of
New York (collectively, the State
Attorneys General). These commenters
assert the backstop standard was
triggered by DOE’s failure to complete a
rulemaking in accordance with 42
U.S.C. 6295(i)(6)(A)(i)–(iv). Thus,
beginning on January 1, 2020, the
commenters believe that the sale of any
GSLs having a luminous efficacy less
than 45 lm/W is unlawful under EPCA.
(See Joint Commenters, No. 335 at p. 4)
Additionally, the Joint Commenters
noted that DOE cannot use its inaction
to complete a rulemaking as a result of
the Appropriations Rider to allow it to
indefinitely block the application of the
backstop standard for GSLs. (Joint
Commenters, No. 335 at p. 7) PG&E and
SDG&E further noted that the preemption exemption in 42 U.S.C.
6295(i)(6)(A)(vi) would serve no
purpose if DOE had no limitation on its
timeline to complete the rulemaking.
(PG&E and SDG&E, No. 348 at pp. 4–5)
PG&E and SDG&E also discounted the
argument that DOE needs to take an
additional action to make the backstop
enforceable. Instead, they stated the
backstop was triggered by DOE’s failure
to comply with clauses (i)–(iv) in
section 6295(i)(6)(A) of EPCA and that
these provisions have binding effect
without the need for prior notice and
opportunity for comment, similar to the
manner in which DOE finalized the
backstop requirements for rough service
and vibration service lamps, which were
treated as a mere administrative
formality. (PG&E and SDG&E, No. 348 at
p. 5)
By law, the Secretary must initiate a
rulemaking by January 1, 2014 to
determine whether standards in effect
for GSLs should be amended and
whether exemptions for certain
incandescent lamps should be
maintained or discontinued based, in
part, on exempted lamp sales. (42 U.S.C.
6295(i)(6)(A)(i)) If the Secretary
determines that standards in effect for
GSILs should be amended, the Secretary
is obligated to publish a final rule
establishing such standards no later
than January 1, 2017. (42 U.S.C.
6295(i)(6)(A)(iii)) If the Secretary makes
a determination that standards in effect
for GSILs should be amended, failure by
the Secretary to publish a final rule by
January 1, 2017, in accordance with the
criteria in the law, would result in the
imposition of the backstop provision in
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42 U.S.C. 6295(i)(6)(A)(v). That backstop
requirement would require that the
Secretary prohibit the sale of any GSL
that does not meet a minimum efficacy
standard of 45 lm/W.
DOE initiated the first GSL standards
rulemaking process by publishing a
notice of availability of a framework
document in December 2013, which
satisfied the requirements in 42 U.S.C.
6295(i)(6)(A)(i) to initiate a rulemaking
by January 1, 2014. DOE subsequently
issued the March 2016 NOPR proposing
energy conservation standards for GSLs,
but was unable to undertake any
analysis regarding GSILs and other
incandescent lamps in the NOPR
because of a then-applicable
Appropriations Rider. Now that the
Appropriations Rider has been removed,
DOE is able to undertake the analysis to
determine whether standards for GSLs,
including GSILs, should be amended
per the requirements in 42 U.S.C.
6295(i)(6)(A)(i). DOE has issued a
proposed determination published
elsewhere in this issue of the Federal
Register in order to complete its
obligations under the statute that were
precluded from being completed by
DOE previously by application of the
Appropriations Rider.
DOE received many comments
pointing to DOE’s failure, per 42 U.S.C.
6295(i)(6)(A)(iii), to publish a standards
rulemaking for GSILs by January 1, 2017
as evidence that DOE has triggered the
backstop provision, because DOE had
not completed a rulemaking in
accordance with 42 U.S.C.
6295(i)(6)(A)(i)–(iv). However, the
statutory deadline on the Secretary to
complete a rulemaking by January 1,
2017, is premised on the Secretary first
making a determination that standards
for GSILs should be amended. The
Secretary only fails to meet the
requirement in 42 U.S.C.
6295(i)(6)(A)(iii) if he determines that
standards for GSILs should be amended
and fails to publish a rule prescribing
standards by January 1, 2017. That is, 42
U.S.C. 6295(i)(6)(A)(iii) does not
establish an absolute obligation on the
Secretary to publish a rule by a date
certain, as is the case in numerous other
provisions in EPCA. See 42 U.S.C.
6295(e)(4); 42 U.S.C. 6295(u)(1)(A); and
42 U.S.C. 6295(v)(1). Rather, the
obligation to issue a final rule
prescribing standards by a date certain
applies if, and only if, the Secretary
makes a determination that standards in
effect for GSILs need to be amended.
Interpreting the statute otherwise would
suggest that, if the Secretary were to
make a determination that standards in
effect for GSILs do not need to be
amended, the Secretary nonetheless has
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an obligation to issue a final rule setting
standards for those lamps he
determined did not necessitate amended
standards. And, further, DOE disagrees
with the assertion that the Secretary’s
failure to issue a rule the obligation for
which does not yet exist would lead to
imposition of a sales prohibition
applicable to the very lamps about
which the Secretary must still decide
whether amended standards are needed.
Although different readings of the
statutory language have been suggested,
DOE believes that the best reading of the
statute is that Congress intended for the
Secretary to make a predicate
determination about GSILs, otherwise it
could result in a situation where a
prohibition is automatically imposed for
a category of lamps that the Secretary
may conclude is unnecessary. Since
DOE has not yet made the predicate
determination on whether to amend
standards for GSILs, the obligation to
issue a final rule by a date certain does
not yet exist and, as a result, the
condition precedent to the potential
imposition of the backstop requirement
does not yet exist and no backstop
requirement has yet been imposed.
DOE disagrees that it does not need to
take an additional action to make the
backstop enforceable, similar to the
manner in which it handled the final
rule for rough and vibration service
lamps.4 DOE’s final rule for rough and
vibration service lamps was not an
exercise of agency discretion, but
merely codified the statutory
requirements that already applied to
those lamps. Congress codified a
separate regulatory process for rough
and vibration service lamps in 42 U.S.C.
6295(l)(4) that includes a distinct
backstop provision for each of the five
lamp types that is triggered if specific
objective criteria are met, namely when
annual sales grow to be more than 100
percent above an extrapolated level of
historical sales. Once these sales
benchmarks have been exceeded, DOE
is required, without discretion, to
develop its own energy conservation
standard and if it fails to do so by a time
certain the backstop is mandated by the
statute. This is in direct contrast to the
discretion accorded the Secretary before
any backstop for GSLs is triggered, i.e.,
the determination whether standards in
effect for GSILs need to be amended.
Presently, some further action is
required on the part of DOE before any
backstop is enforceable to GSLs. DOE
acknowledges that it will need to
address the backstop in a future
rulemaking, should the Secretary make
a determination that standards in effect
4 See
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for GSILs need to be amended. To that
end, DOE has issued a proposed
determination published elsewhere in
this issue of the Federal Register.
2. EPCA’s Anti-Backsliding Provision
NEMA, with the support of
Westinghouse Lighting, Signify, GE
Lighting, and ALA, agreed with DOE’s
position in the February 2019 NOPR
that rescinding the January 19, 2017
definition of GSL is not backsliding
within the meaning of 42 U.S.C.
6295(o)(1), because, in the case of DOE’s
2017 definition of GSL, the government
cannot illegally backslide from a
position it could not legally stand upon
in the first place. (NEMA, No. 329 at p.
41)
On the contrary, commenters
including the Joint Commenters, ASAP,
the National Association of State Utility
Consumer Advocate (NASUCA), CEC,
PG&E/SDG&E, the State Attorneys
General, the United States Senators,
Consumer Groups, Colorado Office of
Consumer Counsel, Connecticut Dept. of
Energy and Environmental Protection,
and the Emmett Institute on Climate
Change and the Environment at UCLA
School of Law (Emmett Institute) all
asserted that DOE’s proposal in the
February 2019 NOPR would violate the
anti-backsliding provision in 42 U.S.C.
6295(o) of EPCA. By narrowing the
scope of the term ‘‘general service
lamp,’’ the Joint Commenters stated that
DOE’s proposed action will exempt
from the backstop standard all lamp
types excluded from the GSL definition
in this rulemaking. Instead of meeting
the 45 lm/W backstop standard level,
each lamp of a type excluded from the
definition of GSL will have to meet a
weaker energy conservation standard, or
no standard at all. Accordingly, in
repealing the January 2017 final
definitions, the Joint Commenters
argued DOE is reducing the minimum
energy efficiency required of those
lamps that it is excluding from the term
‘‘general service lamp,’’ which is an
action the anti-backsliding provision
forbids. (Joint Commenters, No. 335 at
p. 10) The Joint Commenters stated that
the anti-backsliding provision applies
not only to DOE actions that amend the
numerical level of a standard, but also
to actions that alter the scope of a
standard by exempting products. (Joint
Commenters, No. 335 at p. 4) Similarly,
the State Attorneys General asserted
that, according to the court in Hearth,
Patio and Barbecue Ass’n v. U.S. DOE,5
definitional changes can result in the
imposition of otherwise inapplicable
numerical standards. (State Attorneys
5 706
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General, No. 350 at p.7) The Emmett
Institute cited NRDC v. Abraham 6 to
support its anti-backsliding argument,
noting that it is irrelevant that the GSL
standards for the seven categories of
lamps have not yet reached their
effective date, as these lamps became
subject to GSL standards at the time the
January 2017 definition final rules were
published. (Emmett Institute, No. 341 at
pp. 4–5) The Joint Commenters rejected
DOE’s argument in the February 2019
NOPR that its proposal to withdraw the
GSL and GSIL definitions could not be
considered backsliding because the
proposal does not constitute an
amendment of an existing energy
conservation standard. The Joint
Commenters pointed out that in the
February 2019 NOPR, DOE claimed that
the proposed rule fit within a
categorical exclusion from National
Environmental Policy Act (NEPA)
review that applies to certain
rulemakings that establish energy
conservation standards for consumer
products and industrial equipment.
These commenters asserted that DOE
cannot simultaneously avail itself of this
exemption while at the same time
asserting that its instant action is not an
energy conservation standard
rulemaking, but rather a precursor to
any standards development for GSLs.
(Joint Commenters, No. 335 at p. 21; see
also State Attorneys General, No. 350 at
p. 28)
The anti-backsliding provision at 42
U.S.C. 6295(o)(1) precludes DOE from
amending an existing energy
conservation standard to permit greater
energy use or a lesser amount of energy
efficiency. This provision is
inapplicable to the current rulemaking
because DOE has not established an
energy conservation standard for GSLs
from which to backslide. Commenters’
assertions that the anti-backsliding
provision has been violated hinge on the
assumption that the backstop
requirement for GSLs in 42 U.S.C
6295(i)(6)(A)(v) has been triggered and
is currently in effect. However, DOE
makes clear in this rule that it has not
yet made the predicate determination of
whether to amend standards for GSILs,
and therefore the backstop is not yet in
effect—meaning that any discussion of
backsliding is misplaced. For similar
reasons, DOE disagrees with
commenters’ reliance on NRDC v.
Abraham to support their antibacksliding argument. In that case, the
Second Circuit held that the publication
date in the Federal Register of a final
rule establishing an energy conservation
standard operates as the point at which
6 355
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EPCA’s anti-backsliding provision
applies to a new or amended standard.
355 F.3d at 196. This case is
inapplicable to the present rulemaking
since DOE has not yet published a final
rule amending standards for GSLs, nor
has DOE issued a final determination on
whether GSIL standards should be
amended or issued a rule codifying the
statutory backstop in DOE’s regulations.
DOE has only published the January
2017 definition final rules, which
constituted a decision only on whether
to maintain or discontinue various lamp
exclusions. The January 2017 definition
final rules were explicit that they were
not setting any standards. Moreover, the
2017 rules did not follow the statutory
procedures for promulgating efficiency
standards as would be required, because
the rules were only defining terms, not
setting standards. While these definition
rules have an effective date of 2020, this
date is irrelevant for purposes of
whether anti-backsliding applies, since
the rule did not establish a standard.
Further, even if the backstop was
triggered, it does not apply, by the terms
of the statute, until January 1, 2020.
DOE does not agree that the 2017
definition final rules amending the GSIL
and GSL definitions, or this final rule
withdrawing the 2017 final rules,
constitutes a change in scope of a
standard. But even under a theory that
considers the GSIL and GSL definitions
as changing the scope of a standard, the
present circumstances still are in
contrast with those in Abraham. As
DOE has never published a final rule
establishing a standard to serve as the
starting point to consider antibacksliding, DOE could change that
scope prior to the date Congress chose
for start of the supposed standard, i.e.,
January 1, 2020, without violating the
anti-backsliding provision.
Furthermore, even if the backstop
requirement in EPCA were to apply, it
would operate as a sales prohibition for
any GSL that does not meet a minimum
efficacy standard of 45 lm/W. The antibacksliding provision states that the
Secretary cannot prescribe any amended
standard that would allow greater
energy use or less efficiency. EPCA
defines an energy conservation standard
for consumer products as a performance
standard that prescribes a minimum
efficiency level or maximum quantity of
energy usage for a covered product or,
in certain circumstances, a design
requirement. (42 U.S.C. 6291(6)) In
contrast, a sales prohibition in EPCA is
tied to whether a transaction in
commerce can occur with respect to a
covered product, but the prohibition is
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not itself a standard.7 Because the scope
of a sales prohibition is not the same as
a standard, the minimum efficacy
standard of 45 lm/W mandated by the
backstop’s sales prohibition is
unchanged by this final rule. The antibacksliding provision in 42 U.S.C.
6295(o) limits the Secretary’s discretion
only in prescribing standards, not sales
prohibitions, and thus is inapplicable to
the backstop requirement for GSLs in 42
U.S.C 6295(i)(6)(A)(v). Therefore, DOE
has the authority to change the scope of
what lamps would apply to any sales
prohibition for GSLs, assuming the
backstop applied.
DOE agrees with commenters that it
did not use the appropriate NEPA
categorical exclusion for the February
2019 NOPR (even though DOE did use
the same categorical exclusion used in
the 2017 definition final rules) and has
corrected this oversight. In this final
rule, DOE has referenced the applicable
categorical exclusion, 10 CFR part 1021,
subpart D, appendix A5, to more
accurately reflect the effect of this
rulemaking, which amends the
previously proposed definition for GSLs
to that of the original statutory language
and does not change the environmental
effect of the rule being amended See
section III.C.3 for further explanation as
to how correcting this oversight by
utilizing the appropriate categorical
exclusion does not result in
environmental harm.
B. Withdrawal of Revised GSL and GSIL
Definitions
1. General Authority
Several commenters objected
generally to the DOE’s lack of authority
in the February 2019 NOPR to withdraw
the GSL, GSIL and supplemental
definitions. For example, the Joint
Commenters asserted DOE’s failure to
explain the legal basis for its proposal,
or even to provide supporting citations,
violates the Administrative Procedure
Act (APA) and is defective as a matter
of law. The Joint Commenters further
asserted that DOE must provide
stakeholders notice and a meaningful
opportunity to comment on the legal
authority DOE believes authorizes this
action. (Joint Commenters, No. 335 at p.
2) Additionally, PG&E and SDG&E
commented that DOE is overstepping its
authority from Congress by creating or
reinstating lamp exemptions; pursuant
to 42 U.S.C. 6295(i)(6)(A)(i)(II), DOE
may only maintain or discontinue them.
To the extent DOE re-exempts lamps
from the GSIL and/or GSL definition,
7 See 42 U.S.C. 6302(a)(5) for another example of
a sales prohibition.
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PG&E and SDG&E, and similarly, the
State Attorneys General, stated that DOE
will have acted beyond the express
scope of its statutory authority. (PG&E
and SDG&E, No. 348 at p. 4; see also
State Attorneys General, No. 350 at p.
10)
The February 2019 NOPR invoked
DOE’s authority under the 2007 EISAprescribed amendments to EPCA which
directed DOE to consider whether ‘‘the
exemptions for certain incandescent
lamps should be maintained or
discontinued.’’ 42 U.S.C.
6295(i)(6)(A)(i)(II). In the 2017
definition final rules, DOE interpreted
the ‘‘exemptions’’ to refer to the 22
excluded lamp categories from the
definition of GSL and concluded that it
has authority to bring the excluded
lamps within the definition of GSIL and
GSL. 81 FR 71798; 82 FR 7277. As
noted, DOE did not make any
determinations with regard to amending
standards for GSILs in the 2017
definition final rules because it was
prohibited from doing so by the
Appropriations Rider. When the
Appropriations Rider was lifted in the
Consolidated Appropriations Act, 2017,
DOE regained its statutory authority to
determine whether to amend standards
for GSILs, and so issued the 2017 NODA
seeking data for GSILs and other
incandescent lamps. With the additional
benefit of the comments and data arising
from the 2017 NODA, DOE reviewed its
earlier interpretation of the statute and
subsequently identified fundamental
inaccuracies underlying its
determination to revise the definitions
of GSL and GSIL in the 2017 definition
final rules. As discussed in more detail
in Section B. of this final rule, DOE has
determined that its prior action of
defining IRLs as GSLs is not consistent
with the best reading of statute, because
Congress explicitly stated in the statute,
in two distinct provisions, that these
reflector lamps are not within the scope
of the definition of GSLs. Additionally,
DOE has determined that its prior action
of defining candelabra base
incandescent lamps within the
definition of GSIL is not consistent with
the best reading of the statute, because
the existing definition of GSIL applies
only to medium screw base lamps that
candelabra base lamps do not have.
Further, DOE discovered that it had
overestimated shipment numbers for
candelabra base incandescent lamps by
a factor of more than two. As a result of
this new information gathering and the
restoration of DOE’s decision-making
authority under the statute upon the
removal of the Appropriations Rider,
DOE reassessed its original legal
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interpretations which were based on an
incomplete picture of GSILs. DOE
believes maintaining the existing
statutory exemptions for the 22
categories of lamps excluded from the
definition of GSL is the best
interpretation of the statute.
For purposes of the APA, this
rulemaking is amending a rule
previously published based on the
receipt of additional and more accurate
information, as well as based on a reinterpretation of the statute. To the
extent that the APA issues raised in the
comments are based on DOE’s use of the
word ‘‘withdraw’’ in both the proposed
rule and this final rule, DOE points out
that this word is a reflection of the
status of the 2017 definition final rules
and amendatory instruction
requirements of the Office of the Federal
Register. That is, because the 2017
definition final rules do not take effect
until January 1, 2020, those rules cannot
be ‘‘amended’’ for purposes of the
Federal Register prior to January 1,
2020; rather a change to those rules
prior to their January 1, 2020, effective
date constitutes a ‘‘withdrawal’’.
2. Five Specialty Incandescent Lamps
In the February 2019 NOPR, DOE
proposed to maintain the existing
exclusions for rough service lamps,
shatter-resistant lamps, 3-way
incandescent lamps, high lumen
incandescent lamps (2,601–3,300 lm)
and vibration service lamps in the
definition of GSIL and GSL. 84 FR 3124.
DOE tentatively determined that since
these lamps are subject to standards in
accordance with a specific regulatory
process under 42 U.S.C. 6295(l)(4), there
is no need to undertake an additional
process for determining whether to
establish energy conservation standards
for these lamp types as GSLs under 42
U.S.C. 6295(i)(6)(A)(i). Doing so would
potentially subject these lamps types to
two separate standards and create
confusion among regulated entities as to
which one applies. Id.
NEMA, with the support of other
commenters such as Westinghouse
Lighting, Signify, GE Lighting, and ALA,
agreed with DOE’s preliminary
determination, and noted that DOE has
already decided to discontinue the
exemption of rough service lamps and
vibration service incandescent lamps in
accordance with the specific statutory
regulatory regime for those lamps stated
in the statute. NEMA stated the specific
conditions precedent for the regulation
of three other types of exempt
incandescent lamps specifically called
out by Congress in 42 U.S.C. 6295(l)(4)
have not occurred, and therefore
discontinuance of the exemptions for
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those three lamps is unwarranted under
the statute. (NEMA, No. 329 at p. 41)
DOE also received comments objecting
to its proposed exemptions for the five
specialty incandescent lamps on the
grounds of ‘‘double regulation.’’ PG&E
and SDG&E pointed out that GSLs are
already defined by statute to include
both GSILs and CFLs, both of which are
also regulated by separate statute, and
clearly intended by Congress to be
subject to the backstop requirement.
(PG&E and SDG&E, No. 348 at p. 6)
PG&E and SDG&E stated that with
DOE’s interpretation of the statute, there
is no scenario where these five lamp
types could ever be considered GSLs,
which is in direct conflict with
Congress’s instructions in 42 U.S.C.
6295(i)(6)(A)(i)(II) to DOE to consider
discontinuing their exemptions statuses.
Additionally, the Joint Commenters
commented that the NOPR points to no
evidence indicating that regulating the
five tracked lamps as GSLs would create
confusion, nor does it even begin to
explore how the standards for GSLs
would interact with the standards
currently imposed for rough service and
vibration service lamps. The Joint
Commenters noted that EPCA requires
that DOE provide justification for its
conclusion to discontinue these five
exempted lamps with substantial
evidence per 42 U.S.C. 6306(b)(2). (Joint
Commenters, No. 335 at p. 16)
Congress excluded these five
categories of lamps from the definition
of GSIL and GSL, and it codified a
distinct regulatory process for these
lamps in 42 U.S.C. 6295(l)(4). This final
rule confirms what the statue already
requires, that these lamps are subject to
separate statutory requirements set forth
in 42 U.S.C. 6295(l)(4). Thus, DOE is not
additionally regulating these five lamp
types as GSLs under 42 U.S.C.
6295(i)(6)(A)(i).
The regime for potential regulation of
the five lamp types was added to the
statute in the same enactment that
required DOE to consider standards for
GSLs, i.e., the Energy Independence and
Security Act of 2007, Public Law 110–
140, see section 321(a)(4). Moreover, in
both instances the criteria stated in the
statute for consideration for standards
was based on sales of the subject lamps.
If Congress had intended for these five
lamp types to be considered for
potential inclusion under the GSL
authority there would have been little
reason to have also established a
separate process for potential
imposition of energy conservation
standards using similar criteria. As
such, DOE agrees that, using this logic,
these five lamp types could not be GSLs.
However, DOE disagrees that this
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interpretation conflicts with
Congressional instruction in 42 U.S.C.
6295(i)(6)(A)(i)(II). Notably, the
language in this section refers to
‘‘exemptions for certain incandescent
lamps.’’ Thus, this provision still has
meaning even if the five (l)(4) lamps are
excluded from applicability.
3. Incandescent Reflector Lamps
In the first January 2017 definition
final rule (the 2017 GSL Rule), DOE
adopted a regulatory definition of GSL
that maintained the existing exemption
for IRLs. In the second definition final
rule (the 2017 IRL Rule), issued
simultaneously, DOE determined to
discontinue the IRL exemption, and
amended its definition of GSL and GSIL
accordingly. In the February 2019
NOPR, DOE revisited its determination
relating to the IRL exemption, and
proposed to remove IRLs from the
definition of GSIL established in the
2017 IRL Rule. In the February 2019
NOPR, DOE pointed out that since IRLs
are twice excluded from the definition
of GSL in 42 U.S.C. 6291(30)(BB)(ii)(II),
it is clear that Congress did not want the
Secretary to include IRLs within the
definition of GSL. 84 FR 3124.
In response to DOE’s proposal relating
to IRLs, NEMA with the support of
Westinghouse Lighting, Signify, GE
Lighting, and ALA, reiterated its prior
comments in the prior rulemaking
proceeding and additionally noted that
the general service incandescent lamp is
the ‘‘standard incandescent or halogen
lamp type,’’ 42 U.S.C. 6291(30)(D)(i),
which is a reference to the standard
pear-shape bulb that provides
omnidirectional light output. (NEMA,
No. 329 at p. 4) Thus, NEMA stated that
the traditional general service
incandescent lighting applications do
not include light bulbs that provide
focused or ‘‘directional’’ lighting such as
reflector lamps.’’ NEMA provided
additional details about the different
characteristics and applications of
reflector lamps that deviate in a material
way from the characteristics and
lighting applications of a general service
incandescent lamp as defined by
Congress. (NEMA, No. 329 at pp. 18–21)
Specifically, that reflector lamps are
traditionally used in different
applications compared to GSLs,
normally recessed sockets that takes
advantage of the bulb’s unique direction
downlight capacity to a task or area on
a counter or workspace; in small
recessed sockets where general service
A-line lamp will not fit; in track lighting
where directional light is narrowly
focused to accent a spot on a wall; and
in outdoor fixtures where illumination
for security or accenting a garden area
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is desired by a consumer. NEMA
concluded that GSILs are not
traditionally used in these directional
lighting applications. (NEMA, No. 329
at p. 21)
The Joint Commenters responded that
IRLs provide general lighting and
should be included in the definition of
GSLs and subject to the same standards.
They commented that Congress’s act of
(allegedly) repeating itself in the
definition of GSL by twice exempting
IRLs should not undermine an
otherwise broad grant of authority
provided in 42 U.S.C. 6295(i)(6)(A)(i)(II)
to remove these exemptions. (Joint
Commenters, No. 335 at p. 17) PG&E
and SDG&E also disagreed with DOE’s
interpretation of IRLs in the February
2019 NOPR, stating that it creates
ambiguity by permanently preserving a
GSL exemption that was otherwise left
to DOE’s discretion. (PG&E and SDG&E,
No. 348 at p. 7) PG&E and SDG&E noted
that DOE recognized in the prior
rulemaking that the definitions of
‘‘reflector lamps’’ and ‘‘IRL’’ were meant
to encompass a different range of lamps.
(PG&E and SDG&E, No. 348 at p. 7)
PG&E and SDG&E further commented
that DOE’s assertion that IRLs are
regulated elsewhere in the statute and
therefore should not be considered GSLs
is inconsistent with the regulation of
other lamp types such as GSILs and
CFLs, which are explicitly GSLs and are
also regulated elsewhere in EPCA.
(PG&E and SDG&E, No. 348 at p. 7)
Additionally, PG&E and SDG&E
commented that DOE’s definition of
general service LEDs (GSLEDs), which
are also explicitly GSLs, includes LED
reflector lamps as well as LED omnidirection lamps. (PG&E and SDG&E, No.
348 at p.7) They noted that GSLEDs are
not defined by directionality and that it
would create further inconsistencies for
LED reflector lamps to be defined as
GSLs but not their incandescent
counterparts. (PG&E and SDG&E, No.
348 at pp. 7–8)
DOE does not have the authority to
regulate IRLs as GSLs, because the
statute plainly states, in 42 U.S.C.
6291(30)(BB)(ii)(I), that the term
‘‘general service lamp’’ does not include
the list of lamps that were excluded
from the term general service
incandescent lamp (which includes
reflector lamps). The statute then
continues by specifically excluding any
general service fluorescent lamp or
incandescent reflector lamp. 42 U.S.C.
6291(30)(BB)(ii)(II). The notion that
DOE was given a ‘‘broad grant of
authority provided in 42 U.S.C.
6295(i)(6)(A)(i)(II) to remove these
exemptions’’ attempts to suggest that
DOE has the authority by rule to amend
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a statute. Simply put, DOE does not
have that authority. DOE has to
implement the law as written. And,
where Congress has spoken directly to
an issue it is not within the agency’s
power to act in contravention of that
statement. To the extent that one might
argue the statute is unclear on this
point, DOE believes that it is the best
reading (and, consequently, a reasonable
reading) of the statute that Congress’s
express statements in two distinct
provisions that IRLs are not GSLs
should be interpreted as meaning that
Congress intended that DOE not
consider IRLs to be GSLs. Apart from
consideration as a GSL, DOE continues
to have the authority to establish energy
conservation standards applicable to
IRLs under separate requirements set by
Congress in 42 U.S.C. 6295(i)(3).
With regard to comments on the
definition of GSLEDs, for consistency in
this rule, DOE removes all supplemental
definitions adopted in the January 2017
definition final rules, including the
definition of GSLED. This rulemaking
relates only to whether the 22 categories
of lamps exempted from the definition
of GSL should be maintained or
discontinued per the requirements in 42
U.S.C. 6295(i)(6)(A)(i)(II).
4. T-Shape, B, BA, CA, F, G16–1/2, G25,
G30, S, M–14 and Candelabra Base
Lamps
EPCA defines the term GSL to include
any other lamps that the Secretary
determines are used to satisfy lighting
applications traditionally served by
GSILs. (42 U.S.C. 6291(30)(BB)(i)(IV)).
In the 2017 GSL Rule, DOE determined
that lamps that would satisfy the same
applications as traditionally served by
GSILs are ones that would provide
overall illumination and can
functionally be a ready substitute, or
‘‘convenient unregulated alternative’’
for lamps already covered as GSLs. 82
FR 7277. To inform its assessment as to
which GSL exclusions should be
maintained, DOE also used sales data, as
the statute directs in 42 U.S.C.
6295(i)(6)(A)(i)(II). Id. Consequently, the
definitions of GSL and GSIL adopted in
the January 2017 definition final rules
included a broad array of specialty
incandescent lamps and candelabra base
lamps, such as T-Shape, B, BA, CA, F,
G16–1/2, G25, G30, S, and M–14 lamps.
In the February 2019 NOPR, and in
direct response to stakeholder
comments, DOE proposed to withdraw
the revised definitions of GSIL and GSL
which added T-shape lamps and B, BA,
CA, F, G16–1/2, G25, G30, S, and M–14
lamps to the definition of GSIL, agreeing
with commenters that it may have
overstepped its limited authority by
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relying on factors which Congress did
not intend it to consider. 84 FR 3125. In
the February 2019 NOPR, DOE further
acknowledged it is unlikely Congress
intended that DOE have broad
discretion to regulate an incandescent
lamp out of existence based on an
assumption that manufacturers could
make and sell an LED version of the
lamp or that Congress authorized DOE
to eliminate ‘‘convenient unregulated
alternatives’’ that DOE concluded could
undercut this unstated intent of
Congress. Id. Along these lines, DOE
also proposed to withdraw its revision
to the GSL definition that included all
lamps having an ANSI base, such as
candelabra base lamps. DOE
preliminarily determined that
overbreadth in its January 2017
definition final rules had the
consequence of including lamps such as
candelabra base lamps as GSLs, even
though such lamps could not meet the
statutory definition of GSIL since such
lamps do not have a medium screw
base. New data submitted by NEMA also
indicated that DOE’s estimated
shipment numbers for candelabra base
incandescent lamps were potentially too
high by a factor of more than two. Id.
NEMA, Westinghouse Lighting,
Signify, GE Lighting, ALA and Lucidity
Lights, dba/Finally Bulbs submitted
comments in support of DOE’s proposal
to withdraw these lamp shapes from the
definitions of GSL and GSIL, with
NEMA stating that it avoided sweeping
into a regulatory scheme special
purpose bulbs that would be
inappropriate, for both technical and
economic reasons, to regulate in the
same manner as the GSIL, the CFL or
the general service LED lamp. (NEMA,
No. 329 at p.31) These commenters
agreed that DOE overstepped its
authority by redefining GSLs as outlined
in the 2007 EISA legislation. (See
Finally Bulbs, No. 253 at p. 1; GE
Lighting, No. 325 at p. 2, NEMA, No.
329 at p. 3) For example, GE Lighting
commented that the intent of the 2007
EISA law, governing lightbulb
regulation, was to regulate 40w, 60w,
75w, and 100w general service
incandescent A-line lamps as well as
lamps that can be used in applications
traditionally served by general service
incandescent A-line lamps. (GE
Lighting, No. 325 at p. 2) NEMA pointed
out that the statutory test of whether the
Secretary can include other lamps in the
definition of ‘‘general service lamp’’
beyond the three types of light bulbs
specified in the statute is that the ‘‘other
lamps’’ must be used to satisfy lighting
applications traditionally served by
general service incandescent lamps.’’ 42
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U.S.C. 6291(30)(BB)(i)(IV). (NEMA, No.
329 at p. 4) Thus, when Congress
authorized DOE to determine whether
the exemptions for certain incandescent
lamps should be maintained or
discontinued in 42 U.S.C.
6295(i)(6)(A)(i)(II), this authorization
did not include applying energy
conservation standards applicable to
general service lamps to a broad array of
light bulbs with odd bulb shapes and
designs, limited light output,
uncommon applications, and unusual
lamp bases. (NEMA, No. 329 at p. 31)
NEMA stated that these are not
traditional applications of the general
service incandescent lamp; DOE
overstepped its limited authority by
relying on factors which Congress did
not intend it to consider such as
whether a lamp is a ‘‘convenient
unregulated alternative.’’ (NEMA, No.
329 at p. 4). Additionally, it was brought
to the attention of DOE by
representatives of the Federal Aviation
Administration (FAA), that some of the
lamps listed in the February 2019 NOPR
are used in critical aviation
applications, such as navigational aids,
airfield lighting, and airfield signage
and as yet the lamps used in those
safety-critical applications do not have
acceptable LED alternatives.
Furthermore, according to the FAA, the
nation’s busiest passenger airports have
been aggressively transitioning their
lighting systems to LED technology over
the past decade and by its estimation
this conversion should reach its
optimum penetration over the next 5
years.
In contrast, DOE received numerous
comments from stakeholders asserting
that DOE failed to provide an adequate
reason for its departure from its
previous interpretation of congressional
intent. (See State Attorneys General, No.
350 at p. 12) For example, the Joint
Commenters stated that, in basing its
decision to discontinue exemptions for
non-pear lamps on unit sales in
combination with other factors, DOE
was acting entirely within its discretion
under EPCA. (Joint Commenters, No.
335 at p. 18) Similarly, the Joint
Commenters noted that DOE lawfully
invoked its authority under 42 U.S.C.
6291(30)(BB)(i)(IV) to include
candelabra lamps within the definition
of general service lamp. (Joint
Commenters, No. 335 at p. 20) The Joint
Commenters, as well as PG&E and
SDG&E commented that this provision
does not require that a bulb be able to
fit within the definition of general
service lamp; the provision simply
requires that the bulb be able to serve
the same lighting application. Id. (PG&E
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and SDG&E, No. 348 at 7) Similarly, the
California Investor Owned Utilities (CA
IOUs) commented at the public meeting
for the February 2019 NOPR that, while
GSILs typically have a medium screw
base, GSLs are supposed to also capture
CFLs, GSLEDs, and OLEDs, and those
have more than just [medium screw] 8
base types. (CA IOUs, Public Meeting
Transcript, No. 44 at p. 92) PG&E and
SDG&E and the Joint Commenters also
asserted that NEMA’s updated shipment
information for candelabra lamps does
not support a repeal. The Joint
Commenters stated that the February
2019 NOPR ignores the limited role of
shipment information in deciding
whether a lamp is ‘‘used to satisfy
lighting applications traditionally
served by general service incandescent
lamps.’’ (Joint Commenters, No. 335 at
p. 20) Similarly, PG&E and SDG&E
commented that DOE’s previous usage
of the concept of ‘‘lamp-switching
potential’’ to address non-sales-based
considerations was supported by
various stakeholders as a means for
proactively addressing product
loopholes that would otherwise
proliferate. (PG&E and SDG&E, No. 348
at p. 6) DOE’s assertion that it must
depend only on sales for evidence of
lamp switching to warrant the
discontinuation of exemptions would
remove DOE’s discretion to maintain or
discontinue exemptions, which is
contrary to Congress’s express intent in
EISA. (PG&E and SDG&E, No. 348 at p.
6)
The definition of ‘‘general service
lamp’’ includes specific categories of
lamps, along with ‘‘any other lamps that
the Secretary determines are used to
satisfy lighting applications
traditionally served by general service
incandescent lamps.’’ 42 U.S.C.
6291(30)(BB)(i). DOE determines that its
January 2017 definition final rules that
treated specialty lamps such as T-Shape,
B, BA, CA, F, G16–1/2, G25, G30, S, M–
14 and candelabra base lamps as GSLs
is not consistent with the best reading
of the statute, because such lamps are
not used in the same applications as the
standard general service incandescent
lamp. The exemptions from the GSIL
definition for the specific shapes listed
in the previous sentence generally apply
to lamps of 40 watts or less. DOE agrees
with NEMA that traditional general
service incandescent lighting
applications do not include light bulbs
that provide only a limited range of light
output, such as light bulbs with very
8 DOE’s public meeting transcript was incomplete
regarding this statement from the CA IOUs. DOE
has added what it believes to be the missing
language.
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dim light output because of their low
wattage. (NEMA, No. 329 at pp. 4–5)
Furthermore, as described by NEMA,
decorative light bulbs such as those
with a ‘‘candle’’ shape bulb (‘‘B’’ blunt
tip; ‘‘BA’’ bent tip; ‘‘C’’ flame tip; ‘‘CA’’
bent tip; ‘‘F’’ flame shape) and small
globe shape lamps (G16.5) have a form
factor that is not as large as the general
service incandescent lamp’s pear shape
bulb. These decorative light bulbs
present a decorative aesthetic to the
consumer that is not replicated in the
general service incandescent lamp,
which is not used in decorative
applications. The decorative bulb serves
a different application for the consumer
than the GSIL. When these decorative
bulbs are mounted on a medium screw
base, they are by definition low wattage
(≤ 40W) and therefore low lumen lamps
and will not serve the broader range of
light outputs sought by consumers for
applications traditionally served by
general service incandescent lamps.
(NEMA, No. 329 at p. 24) Lamps with
an S shape have a small form factor, low
wattage, and low lumen output; they are
used in marquee signs and sometimes in
appliance applications, night lights, and
lava lamps. Lamps with a T shape have
a tubular form factor and are also low
wattage and low lumen lamps; they are
typically used in music stands and
showcase displays. Neither S nor T
shape lamps are used in applications
traditionally served by GSILs. (NEMA,
No. 329 at p. 25) With respect to
candelabra base lamps, these lamps
additionally could not meet the
statutory definition of GSIL since such
lamps do not have a medium screw
base. This distinction is important, as
the purpose of this rule is to determine
whether the statutory exclusions from
GSILs should be retained per 42 U.S.C.
6295(i)(6)(A)(i)(II). As a pure matter of
law, a candelabra base lamp cannot be
a GSIL because EPCA defines a GSIL, in
part, as having a medium-screw base.
Congress made plain in the statute the
scope of lamps it authorized DOE to
consider. To the extent there is any
uncertainty on this point, DOE believes
the best interpretation of the statute is
to remain within bounds of the existing
statutory definition. DOE is no longer
using ‘‘convenient unregulated
alternatives’’ as a basis upon which to
discontinue exemptions for specialty
lamp types. This type of consideration
is never mentioned in the statute and
DOE agrees with those commenters that
assert it goes beyond the authority
granted to it by Congress to use the
potential that a lamp may be considered
a loophole to GSL standards as the basis
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for discontinuing its exemption under
the statute.
In response to commenters asserting
otherwise, DOE believes it gave proper
weight to its consideration of the sales
information for candelabra base lamps
provided by manufacturers. The data
provided by NEMA indicated that
shipments of candelabra base
incandescent lamp have been in a
continuous decline since 2011 and there
is no evidence of increasing shipments.
(NEMA, No. 329 at p. 41) As sales data
is the only factor Congress specifically
pointed to in determining whether
exemptions for certain incandescent
lamps should be maintained or
discontinued in 42 U.S.C. 6295
(i)(6)(A)(i)(II), DOE finds it appropriate
to give this manufacturer data
considerable weight in determining
whether to maintain the exemption for
the regulation of candelabra base lamps
as GSLs. In light of the declining
shipments for candelabra base lamps
and the fact that consumers use
candelabra as well as T-shape, B, BA,
CA, F, G16–1/2, G25, G30, S, M–14
lamps for different applications than a
general service incandescent lamp, in
this final rule, DOE withdraws the
revised definitions of GSL and GSIL,
and maintains the current exclusion of
these lamp shapes from the definitions
of GSL/GSIL.
5. Supplemental Definitions
In the February 2019 NOPR, DOE
proposed to withdraw the revised
definitions of GSL and GSIL established
in the January 2017 definition final
rules as well as the supplemental
definitions established in those rules
that would no longer be necessary in
light of the proposed withdrawal of the
revised definitions of GSL and GSIL. 84
FR 3122. NEMA, with the support of
Westinghouse Lighting, Signify, GE
Lighting, and ALA provided comments
supporting the retention of certain
supplemental definitions, stating that it
would be beneficial to define statutory
terms that are undefined in the statute
or are found in the current DOE
regulations where DOE has adopted the
statutory term or are appropriate in
connection with these definitions.
(NEMA, No. 329 at p. 33) GE Lighting
additionally commented that if DOE is
reverting to the original definitions in
the EISA 2007 law, this should include
keeping definitions for excluded lamps.
(GE Lighting, No. 325 at p. 3) NEMA
also requested that DOE modify the
definition of GSLEDs to be consistent
with the February 2019 NOPR and the
intent of Congress. (NEMA, No. 329 at
p. 34) NEMA derived its proposed
definition of GSLED from the
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congressional definition of the medium
base compact fluorescent lamp. (NEMA,
No. 329 at p. 34)
For consistency in this rule, DOE
removes all supplemental definitions
adopted in the January 2017 definition
final rules, including the definition of
GSLED. DOE anticipates addressing
undefined statutory terms in a future
GSL standards rulemaking in which it
can consider these issues with the
benefit of analysis and public comment.
C. Additional Issues
Commenters expressed concern over a
number of additional issues arising out
of the February 2019 NOPR, which are
discussed below.
1. Preemption
Northwest Energy Efficiency Alliance
(NEEA), the Emmett Institute, the New
York Assembly Commission on Science
and Technology, and the National
Association of Statue Utility Consumer
Advocates (NASUCA) provided
comments generally that if DOE
rescinds the revised definitions of GSL
and GSIL established in the January
2017 definition final rules, states will
resume regulation of these lamps,
leaving a patchwork of state regulations
for retailers to navigate. (NEEA, No. 358
at p. 2; Emmett Institute, No. 341 at pp.
6–7; New York Assembly Commission
on Science and Technology, No. 321 at
p. 2; NASUCA, No. 347 at p. 7; Green
Energy Consumers Alliance, No. 322 at
p. 1) Signify requested that DOE address
directly the issue of preemption for
states that have adopted, or are adopting
a 45 lm/W GSL standard and the
expanded definitions promulgated on
January 19, 2017. (Signify, No. 354 at p.
2) Signify prefers a strong regulatory
framework, noting that a patchwork of
different State regulations is counterproductive, hurts manufacturers and
ultimately increases costs for consumers
and stymies market adoption and energy
savings. (Signify, No. 354 at p. 2)
Federal energy conservation
requirements generally supersede state
laws or regulations concerning energy
conservation standards. (42 U.S.C.
6297(a)–(c)) Absent limited exceptions,
states generally are precluded from
adopting energy conservation standards
for covered products both before an
energy conservation standard becomes
effective, and after an energy
conservation standard becomes
effective. (42 U.S.C. 6297(b) and (c))
However, the statute contains three
narrow exceptions to this general
preemption provision specific to GSLs
in 42 U.S.C. 6295(i)(6)(A)(vi). Under the
limited exceptions from preemption
specific to GSLs that Congress included
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in EPCA, only California and Nevada
have authority to adopt, with an
effective date beginning January 1, 2018
or after, either:
(1) A final rule adopted by the
Secretary in accordance with 42 U.S.C.
6295(i)(6)(A)(i)–(iv);
(2) If a final rule has not been adopted
in accordance with 42 U.S.C.
6295(i)(6)(A)(i)–(iv), the backstop
requirement under 42 U.S.C.
6295(i)(6)(A)(v); or
(3) In the case of California, if a final
rule has not been adopted in accordance
with 42 U.S.C. 6295(i)(6)(A)(i)–(iv), any
California regulations related to ‘‘these
covered products’’ adopted pursuant to
state statute in effect as of the date of
enactment of EISA 2007.
DOE clarifies in this rule that none of
these narrow exceptions from
preemption are available to California or
Nevada. The first exception applies if
DOE determines that standards in effect
for GSILs need to be amended and
issues a final rule setting standards for
these lamps in accordance with 42
U.S.C. 6295(i)(6)(A)(i)–(iv). In that
event, California and Nevada would be
allowed to adopt a rule identical to the
Federal standards rule. This exception
does not apply since DOE had not yet
determined whether standards in effect
for GSILs need to be amended and thus
has not issued a final rule setting
standards for these lamps in accordance
with 42 U.S.C. 6295(i)(6)(A)(i)–(iv). The
second exception allows California and
Nevada to adopt the statutorily
prescribed backstop of 45 lm/W if DOE
determines standards in effect for GSILs
need to be amended and fails to adopt
a final rule for these lamps in
accordance with 42 U.S.C.
6295(i)(6)(A)(i)–(iv). This exception
does not apply because DOE has not yet
made the determination on whether to
amend standards for GSILs, and thus no
obligation currently exists for DOE to
issue a final rule setting standards for
these lamps in accordance with the 42
U.S.C. 6295(i)(6)(A)(i)–(iv). The third
exception does not apply since there are
no California efficiency standards for
GSLs in effect as of the date of
enactment of EISA 2007. Therefore, all
states, including California and Nevada,
are prohibited from adopting energy
conservation standards for GSLs.
2. Manufacture Date in Lieu of Sales
Prohibition
Signify and Finally Bulbs requested
that DOE’s final GSL standard
rulemaking should impose an effective
date tied to a manufacturing date as
opposed to a sales date. (Signify, No.
354 at p. 2) Finally Bulbs commented
that a sales ban generates multiple
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issues that would result in financial
losses throughout distribution channels.
(Finally Bulbs, No. 253 at p. 2)
DOE notes that the sales prohibition
on GSLs that do not meet a minimum
45 lm/W standard beginning on January
1, 2020 would go into effect only if the
backstop has been triggered. If the
backstop requirement had been
triggered the sales prohibition would be
required by statute under 42 U.S.C.
6295(i)(6)(A)(v) and DOE has no
discretion to change this requirement.
3. Consumer/Environmental Harm
DOE received many comments,
including 64,145 bulk comments
contained in batched form letters, two
spreadsheets, and executive
correspondence surrounding the alleged
uncertainty introduced by the February
2019 NOPR and its potential to increase
costs for retailers and consumers while
damaging the environment. (See ASAP,
No. 331 at p. 8; NEEA, No. 358 at p. 2;
Ceres BICEP Network, No. 313 at p. 3;
Green Mountain Power, No. 259 at p. 1;
United States Climate Alliance, No. 270
at pp. 1–2) The Sierra Club and NRDC
filed several comments from individuals
through a form letter process. The Sierra
Club submitted comments from 3,788
individuals strongly urging DOE to
abandon its proposal stating that it
would cost Americans billions in
electricity bills and put millions of tons
of greenhouse gases and pollutants in
the atmosphere. These commenters also
stated that application of more stringent
requirements for recessed lighting,
chandeliers, and other decorative
fixtures beginning in 2020 will save
consumers nearly $12 billion annually.
Additionally, they noted that the
adoption of lighting standards have
already greatly increased the market for
high-efficiency LED bulbs and the
proposal was taking them in the wrong
direction. (Sierra Club, No. 236, 238,
240, 244, 246, 390, 392, 395, 397, 399,
401, 403, 405, 407, 408, 410, 412, 414,
415, 417,421, 423, 424 at all pages) The
NRDC submitted comments from 46,945
individuals stating strong opposition to
DOE’s proposal to narrow the scope of
light bulbs covered by what commenters
understood as the upcoming 2020
backstop. Further, these commenters
stated that DOE’s proposal would cost
consumers billions of dollars in
additional annual energy costs and
increase carbon emissions by millions of
tons. (NRDC, No. 343, 359 at
spreadsheet attachment) NASUCA
commented that consumers of essential
utility service stand to lose
environmental benefits and millions of
dollars in energy efficiency savings if
the DOE rolls back lighting standards.
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(NASUCA, No. 347 at p. 4) NEEA noted
that the proposal, if finalized, will cause
utilities in the Northwest region to
replace the lost energy savings either by
building more power plants or by
creating more utility programs around
other products to achieve the savings
through much less cost-effective means.
(NEEA, No. 358 at p. 1) The Energy
Strategy Coalition 9 asserted that the
February 2019 NOPR would hinder
technological progress and make it
harder for them to reduce their systems’
emissions and provide cost-saving
programs to customers (Energy Strategy
Coalition, No. 324 at p. 3) The California
Municipal Utilities Association, SMUD,
CEC, PG&E and SDG&E, the Consumer
Federation of America and the National
Consumer Law Center (Consumer
Groups), the United States Senate, and
the Colorado Energy Office also
generally noted that substantial
consumer benefits are threatened by
DOE’s withdrawal of the definition final
rules as, among other things, it will
result in increased energy consumption
and higher electricity bills. (SMUD, No.
312 at p. 2; CEC, No. 332 at p. 4; PG&E
and SDG&E, No. 348 at pp. 1–2;
Consumer Groups, No. 310 at p. 2;
United States Senate, No. 377 at p.1 and
Colorado Energy Office, No. 330 at p. 1)
Joint commenters from utilities/energy
associations (collectively, NorthWestern
Energy),10 as well as comments from the
Sunrise Bay Area Hub, estimated that
DOE’s proposal to rescind the 2017
definition of GSL would reduce
household energy savings by an average
of $100 every year (as of 2025).
(NorthWestern Energy, No. 327 at p. 1;
Sunrise Bay Area Hub, No. 317 at p. 1)
Many of these commenters, as well as
the Green Energy Consumers Alliance,
the American Chemical Society, the
New York State Assembly Commission
on Science and Technology, the Nevada
9 These commenters include: Austin Energy, Con
Edison, Exelon Corporation, Los Angeles
Department of Water and Power, National Grid,
New York Power Authority, Pacific Gas & Electric
Corporation, Sacramento Municipal Utility District,
and Seattle City Light.
10 These commenters include: Ameren Missouri,
American Electric Power, Arizona Public Service,
Austin Energy, Avista, Berkshire Hathaway Energy,
Chelan County PUD, California Municipal Utilities
Association, Cedarburg Light & Water Utility,
Consumers Energy, CPS Energy, Dominion Energy,
DTE Energy Company, Entergy Corporation, Evergy,
Eversource, Exelon Utilities, Hawaiian Electric,
Idaho Power, Kerrville Public Utility Board (Texas),
Lincoln Electric System (Nebraska), Long Island
Power Authority, Los Angeles Department of Water
and Power, New York Power Authority,
NorthWestern Energy, PNM Resources, PSEG,
Portland General Electric, Puget Sound Energy,
Sacramento Municipal Utility District, San Diego
Gas & Electric, Seattle City Light, Southern
California Edison, Tacoma Public Utilities, Tucson
Electric Power, Vistra Energy, and Xcel Energy.
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Governor’s Office of Energy, and the
Connecticut Department of Energy and
Environmental Protection also asserted
that the February 2019 NOPR will
release even more carbon emissions
from the power sector. (Green Energy
Consumers Alliance, No. 322 at p. 1;
American Chemical Society, No. 298 at
p. 1; the New York State Assembly
Commission on Science and
Technology, No. 321 at p. 1; the Nevada
Governor’s Office of Energy, No. 171 at
p. 1; and the Connecticut Department of
Energy and Environmental Protection,
No. 261 at p.2) Further, the State
Attorneys General, CEC and the Emmett
Institute commented that DOE’s
proposed action has significant
environmental effects which must be
evaluated under NEPA. (State Attorneys
General, No. 350 at p. 27; CEC, No. 332
at p. 5; and Emmett Institute, No. 341
at p. 7) Emmett Institute stated that the
February 2019 NOPR would almost
certainly result in a significant increase
in energy consumption once numerous
categories of lamps are no longer subject
to EPCA standards. The State Attorneys
General added that the proposed rule
violates other environmental laws,
including the Endangered Species Act,
the Coastal Zone Management Act, and
the National Historic Preservation Act.
(State Attorneys General, No. 350 at p.
31)
As DOE has consistently stated
throughout this rulemaking, this rule to
withdraw the revised definitions of GSL
and GSIL is not a standard. The January
2017 definition final rules likewise were
emphatic in stating that they were not
setting a standard. DOE has not applied
the backstop requirement to the lamps
that remain as GSL or to those that are
being withdrawn from the definition.
The obligation for DOE to consider
energy conservation standards for lamps
considered to be GSLs remains and DOE
is working toward completing that task.
More importantly for purposes of
responding to these comments, this rule
does not prevent consumers from
buying the lamps they desire, including
efficient options. NEMA’s market and
lamp shipment data analysis
demonstrates that the average GSL
product in the market already has an
average efficacy greater than 45 lm/w.
(NEMA, No. 329 at p. 49) Further,
NEMA’s confidential data provided to
DOE, and the lamps consumers find
currently offered for sale at retail
establishments, shows that the market is
successfully transitioning to LEDs
regardless of government regulation.
Consumers are clearly taking advantage
of the energy savings provided by LEDs,
and the data provided by NEMA gives
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no indication that the current market
direction toward an increasing use of
LED lamps will change as a result of this
rule or any other factor. This final rule
does not affect the availability of
efficient LED lamp types, and DOE
anticipates that consumers will
continue to purchase and install highly
efficient lighting options. As such, there
is nothing about this rule that will lead
to the need for more power generation,
increased emissions, or lost consumer
benefits. Consumers who already benefit
from the wide availability of LEDs will
continue to do so.
Lastly, in response to the concerns
raised regarding the increase in energy
consumption and environmental effects
of this rule, DOE reiterates that this
rulemaking addresses the scope of the
definitions for GSL and GSIL and does
not adopt an energy conservation
standard for these products. DOE
acknowledges that the February 2019
NOPR referenced an inapplicable
categorical exclusion to meet its NEPA
obligations to evaluate the
environmental impact of the
rulemaking. DOE recognizes that it can
still comply with NEPA through the use
of a different categorical exclusion. As
this rulemaking changes the scope of an
existing rule that does not alter the
environmental effect of the rule being
amended, DOE determined the
categorical exclusion under 10 CFR part
1021, subpart D, appendix 5A, applies.
(10 CFR 1021.410) 11 DOE now seeks to
correct this oversight.
Further, although the February 2019
NOPR relied on the same categorical
exclusion used in the January 2017
definition final rules that were met with
no objections,12 this rulemaking, as DOE
has earlier explained, is not the
adoption of an energy conservation
standard, and is distinct from the types
of rules that would accurately fall under
Categorical Exclusion B5.1(b). Like the
January 2017 definition final rules, this
action does not establish an energy
conservation standard, but rather only
defines certain statutory terms (here, by
adhering to the existing definitions in
the statute). Moreover, as previously
noted, the 2017 definition final rules are
not yet in effect. Consequently, DOE’s
action in this rule does not result in a
change to the environmental effect of
the existing rule being amended. (10
CFR 1021.410) A change that would
11 10 CFR part 1021, subpart D, appendix 5A
Interpretative rulemakings with no change in
environmental effect, (‘‘Rulemakings interpreting or
amending an existing rule or regulation that does
not change the environmental effect of the rule or
regulation being amended.’’).
12 82 FR 7276, 7319; 82 FR 7322, 7331; 10 CFR
part 1021, appendix B5.1(b).
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result in a measurable environmental
impact would be the product of a
separate regulatory action, such as
setting energy conservation standards
which this rule does not adopt. DOE’s
action here maintains the scope of the
definitions of GSL and GSIL as that of
the statute and withdraws a broader
scope and supplemental definitions
prior to their having taken effect. These
actions are limited to identifying which
lamps are defined as GSLs and GSILs
and do not cause a change to the
environmental effect of the existing rule.
In fact, this action maintains the status
quo. As such, this action, therefore, fits
within this A5 categorical exclusion and
its use meets DOE’s obligations to
evaluate the environmental impact of its
proposed action under NEPA.
4. Data
The February 2019 NOPR, and this
final rule, address two issues: (1) The
scope of lamp types included in the
definitions of GSL and GSIL; and (2) the
applicability of the 2020 backstop
requirement. Issue 1, because it relates
to definitions and does not establish or
materially change any standard, is not a
subject of analysis under DOE’s
statutory requirements at 42 U.S.C.
6295(o)(2)(B). As a result, DOE did not
draft an analysis of these definitional
changes and did not seek comments on
any analysis of these changes.
In contrast, Issue 2 reduces market
uncertainty to a significant extent by
clarifying the applicability of a 2020
backstop sales prohibition. DOE sought
comment in its February 2019 NOPR on
data that would enable it to better
analyze this issue. Specifically, DOE
sought comment on seven topics related
to the distribution of relevant lamps
throughout the retail cycle and the
potential opportunity cost to retailers of
transitioning lamp types into and out of
stock. 84 FR 3127. DOE sought comment
on these topics to enable an analysis of
the second issue dealt with in this final
rule—that is, the degree to which
clarifying applicability of the 2020
backstop will reduce uncertainty in the
market. This analysis is unrelated to
Issue 1, which deals with the definitions
that are changed by this final rule.
DOE received responses to these
seven data questions from multiple
commenters. In particular, NEMA,
LEDVANCE, and ALA provided data
dealing with the retail channel pipeline,
travel time for wholesale goods, length
of time lamps sit on a retail shelf, and
the proportion of bays, sales, or
inventory that constitutes lighting
products. (NEMA, No. 329 at pp. 42–44;
LEDVANCE, No. 326 at pp. 1–5; ALA,
No. 308 at pp. 3–4)
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Commenters provided information on
procurement cycles for lamp retailers,
including timeframes for procurement
and transit. NEMA provided a high level
generalization of the manufacturer
experience in working with retail
customers, indicating that the total time
between the retailer’s initial factory
order and when a consumer can
purchase a good can range from 4 weeks
to 6 months or longer. (NEMA, No. 329
at p. 44) NEMA states that the purchase
cycle begins when a purchase order is
placed with the lamp factory, based on
retailer demand. For lower to medium
volume products, retailers typically
place regular stocking orders based on a
one to two week lead time for cartons
and pallets. However, NEMA stated that
a longer lead time (60 to 75 days) is
needed for larger, full container orders
to deliver directly to a retailer’s
distribution center. Once received, the
goods remain in a retailer’s distribution
center between two and four weeks
until the goods are shipped to
individual store locations based on
individual item/store demand. (NEMA,
No. 329 at pp. 43–44) LEDVANCE
further illustrated the upstream timing
considerations and stated that it takes
on average three months from the start
of the process of procuring raw
materials until the release of component
shipment to the factory, although the
time will vary depending on the source
of the materials. This timeframe
includes paperwork, placing binding
orders, shipping components from
remote sources, clearing customs (for
international components), and
transportation to the facility. After
components arrive, production will take
two or three months and once released
from production it may take 5–14 more
days to rout the final product from the
distribution center to the retail
customer. (LEDVANCE, No. 326 at pp.
2–3)
Other factors, such as retailer-specific
contracts and ‘‘safety stock’’, may also
affect how retailers stock lamps. For
example, LEDVANCE stated that
contract terms with certain retailers will
mandate inventory levels. Such
contracts specify that LEDVANCE
provide multiple months of inventory,
particularly for new items. In addition,
LEDVANCE stated that it carries 2–3
months of component inventory in
‘‘safety stock’’ in order to meet all
customer demands. (LEDVANCE, No.
326 at pp. 2–3) In total, LEDVANCE
asserted that it takes between 5 and 12
months, including transit, for a lamp to
move from source through a major
retailer’s distribution centers to the
store. LEDVANCE stated that most
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retailers have on average three months
of inventory between their story and
distribution centers. (LEDVANCE, No.
326 at p. 2) NEMA asserted that
individual stores will carry sufficient
inventory to prevent having empty shelf
space. (NEMA, No. 329 at pp. 43–44)
LEDVANCE submitted confidential data
on three years of total industry
shipments of lamp types, showing that
a significant number of units are in
transit and/or in a distribution center or
on shelf, awaiting order and/or
purchase. (LEDVANCE, No. 326 at p. 3)
Once goods are at the retail site,
NEMA estimated that lower to medium
demand products and specialty seasonal
demand products (e.g. colored lights)
may sit on a store shelf between 30 and
90 days, while retailers prefer to
maintain at least two weeks of inventory
for high demand products. (NEMA, No.
329 at pp. 43–44) Commenters generally
agreed that timeframes to sale vary by
lamp type. ALA commented that
specialty lamps, which are lowervolume products, spend significantly
longer time on store shelves, while LED
A lamps move through inventory
systems at faster rates. Approximately
70 percent of sales in the specialty lamp
category are incandescent lamps. (ALA,
No. 308 at p. 3) NEMA agreed that highvolume lamps tend to through retail
channels more quickly than lowervolume specialty lamps, including those
at subject in the 2019 NOPR. NEMA
asserted that because these specialty
lamps have a longer shelf-life, they
would entail greater exposure to risk
from a sales prohibition order such as
that contemplated by the ‘‘backstop.’’
(NEMA, No. 329 at p. 42)
Commenters generally agreed on the
proportion of space at major retailers
that is devoted to lighting products.
LEDVANCE estimated that lighting and
luminaires can occupy between 5% and
10% of a DIY retailer’s floor space
(LEDVANCE, No. 326 at p.3) and ALA
retailers estimate about 6%–10%
percent of showroom and warehouse
space is used for lamps (ALA, No. 308
at p. 3).
Commenters provided different views
on the scope of retailers affected by
uncertainty. NEMA noted that large
retail hardware stores and urban/
suburban retail stores tend to move light
bulbs through the distribution channel
than specialty retail stores or rural retail
stores. (NEMA, No. 329 at p. 42)
LEDVANCE noted that all types of
retailers, and other upstream
stakeholders in the supply chain, are
affected by uncertainty regarding the
January 2020 date. (LEDVANCE, No.
326 at p. 5) Among the sources of
uncertainty LEDVANCE listed that
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components could be stranded,
packaging must be recycled/scrapped at
cost, contracts with suppliers and
customers that cannot be fulfilled may
result in financial penalties, excess
inventory must be scrapped, and that
last minute product reset is challenging
with possibly lower pricing
requirements. Id. The California
Municipal Utilities Association (CMUA)
provided a different perspective and
stated that retailers that have already
adjusted their procurement activities to
reflect the 2017 definitions will be
harmed. (CMUA, No. 328 at p. 3)
Commenters presented differing
views regarding the burden or benefits
associated with open bays. LEDVANCE
commented that open bays present
significant problems in that customers
are frustrated by a lack of products and
choices and retailers lose sales
opportunities as a result. (LEDVANCE,
No. 326 at pp. 3–5) In the February 2019
NOPR public meeting, NRDC noted that
freeing up space on retailers’ shelves
could be a benefit instead of a burden
as there are other products that could
also provide revenue. (NRDC, Public
Meeting Transcript, No. 44 at p. 144)
LEDVANCE agreed in part that open
bays provide an opportunity for new
product, but noted that filling the open
bays takes time, and there may be added
reset costs. (LEDVANCE, No. 326 at pp.
3–5) LEDVANCE elaborated that
identifying and sourcing new products
for an open retail bay can require 6–12
months, including identifying and
qualifying the source, setting up the
new vendor, product testing time, price
negotiation, purchase orders, transit
from the source, and initiating new data
setup in store registers. (LEDVANCE,
No. 326 at pp. 3–5) ALA stated that the
typical supply chain for a traditional
lighting retailer is roughly 30 days.
(ALA, No. 308 at p. 4) LEDVANCE
added that lamp sales are seasonal and
affected by scheduled events, which
requires manufacturers to prepare three
months earlier to have adequate
inventory to meet demand.
(LEDVANCE, No. 326 at pp. 3–5) From
the perspective of retailers, updating the
layout and product offerings requires
planning time, advanced scheduling,
and execution time. Big box retailers
schedule line reviews for lamps using
fast changing technologies, such as LED
lamps; these line review may take 4–6
months followed by a shelf reset 8–10
months after the start of the cycle.
Convenience retailers are less likely to
schedule line reviews, and may
schedule shelf refreshes in the spring
and the fall. Id.
The Colorado Office of Consumer
Counsel (COCC) and the Colorado
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Energy Office (CEO) noted that
uncertainty may be enhanced by DOE’s
rulemaking as a result of potential legal
challenges. COCC and CEO stated that
multiple organizations have indicated
that they might pursue litigation, which
would not be resolved until well into
2020. As a result, COCC and CEO
stipulated that retailers, who will be
responsible for compliance with a
potential 45 lm/W backstop, will be
uncertain whether lamps shipped in
2019 will be legal to sell when they
arrive at the stores. (COCC, No. 319 at
p. 3; CEO, No. 330 at p. 2)
DOE also received comments on its
overall use of data in the rulemaking.
Many commenters were confused as to
which aspect of its rulemaking DOE
intended to analyze, and did not
distinguish between Issue 1 and Issue 2
of the February 2019 NOPR. For
example, PG&E and SDG&E commented
that DOE’s use of data in the rulemaking
does not justify its withdrawal of the
exemption discontinuations from the
2017 definition final rules. (PG&E and
SDG&E, No. 348 at p. 8) They
commented that the February 2019
NOPR did not explain how submitted
data helped to inform the proposal.
They argued DOE claimed that the data
serves to establish retailer burden but
does not explain how the data that is
provided is relevant. Nor does DOE
address how retailer burden itself plays
any role in DOE’s proposal. PG&E and
SDG&E also noted the proposal only
focuses on burden of some retailers,
while totally discounting burdens on
retailers who are committed to selling
LED lamps and have proactively based
their business plans on the forthcoming
standards. These commenters stated that
DOE does not consider burdens on
consumers, forward thinking
manufacturers and retailers and
utilities. (PG&E and SDG&E, No. 348 at
p. 8) Ceres BICEP Network similarly
commented, noting that DOE is putting
extraordinary weight on sales data from
NEMA to revisit a definition that is now
two years old, a reversal that will only
create more confusion in the
marketplace. (Ceres BICEP Network, No.
313 at p. 3)
Historically, DOE has not conducted
analysis of its definitional rules. In its
January 2017 definition final rules, DOE
explained that the analytical
requirements to which DOE is subject
apply, by their terms, only when DOE
prescribes a new or amended standard.
By contrast, a rule that alters definitions
does not establish or materially change
any standard, and the same analytical
requirements do not apply. See 82 FR
7278; see also 84 FR 3125. As a result,
this rule is not accompanied by a
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technical support document or other
analyses for the definition change.
As DOE noted in the previous section,
this rule does not prevent consumers
from buying the lamps they desire,
including efficient options; the same is
true for retailers. In response to CMUA,
those retailers who prefer to stock only
LEDs are in no way prohibited from
doing so under this final rule. Per
PG&E/SDG&E’s comments, DOE takes
this opportunity to clarify that retailer
burden does not play a role in DOE’s
definition changes. Rather, DOE sought
to clarify the applicability of the 2020
backstop, which involved a sales
prohibition that, if it applied, would
burden retailers who must transition
their lighting stock. DOE only uses data
and supporting analysis in this rule to
illustrate the scope of uncertainty in the
market regarding the applicability of the
backstop sales prohibition. DOE agrees
with NRDC that retailers may replace
lighting products with higher-revenue
products; however, this does not negate
the very real transition costs to retailers
who switch out their stock. In addition,
due to the particulars of the retail
supply chain, such a transition is likely
to take a significant amount of time, and
some retailers may forego revenue if
they are unable to find a timely product
replacement. The analysis that DOE
provides in this final rule addresses
those transition and opportunity costs.
In the February 2019 NOPR, DOE said
that the agency would attempt to
quantify the uncertainty created by its
prior rulemakings in the proceeding. In
particular, DOE noted that it had created
substantial uncertainty by making
apparently conflicting statements about
the applicability of the backstop
requirement. DOE anticipates that
having clarified that the backstop does
not apply has and will result in
measurable effects on the markets for
certain incandescent lamps, including
rough-service, vibration service, 3-way,
shatter resistant, high-lumen,
candelabra, halogen, and globe lamps.
Further, significant uncertainty existed
in the retail market regarding the scope
of lamps that may be available for sale,
which DOE had failed to clarify in
previous statements or rulemakings. As
a result of this uncertainty, retail outlets
had not been able to plan adequately for
a potential change in stock, or lack
thereof. This uncertainty creates cost for
retailers, and this clarification is
expected to reduce those uncertainty
costs.
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IV. Procedural Issues and Regulatory
Review
A. Review Under Executive Orders
12866 and 13563
This final rule constitutes a
‘‘significant regulatory action’’ under
section 3(f) of Executive Order 12866,
Regulatory Planning and Review, 58 FR
51735 (Oct. 4, 1993). Accordingly, this
action was subject to review by the
Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget (OMB).
B. Review Under Executive Order 13771
This final rule is considered an E.O.
13771 deregulatory action. Details on
the estimated costs of this rule can be
found below.
1. Analytical Approach
This rulemaking clarifies that DOE
has not yet taken the predicate actions
to trigger the 45 lm/W backstop. DOE
must still make a determination
regarding whether to amend standards
for GSILs, which would affect whether
the 45 lm/W backstop standard would
apply to general service lamps.
Clarifying this applicability removes
any uncertainty that exempted lamps,
such as those at subject in this
rulemaking, would be subject to the 45
lm/W backstop requirement. Clarifying
this point will result in measurable
effects on the markets for certain
incandescent lamps, including vibration
service, 3-way, shatter resistant, highlumen, candelabra, halogen, and globe
lamps.
The analysis that follows quantifies
the cost savings to the retail market
associated with resolving uncertainties
as to which lamps may be sold as of
January 1, 2020 as a result of clarifying
applicability of the 2020 backstop. The
February 2019 NOPR requested
information on the potential range of
cost savings associated with the
proposed action. The information
received was used to quantify how
many lamps were affected by
uncertainty surrounding the 2020
backstop and the extent to which
retailers would have borne costs
associated with changes in inventory
throughout the distribution chain.
As a result of prior confusion
regarding whether the 45 lm/W
backstop had been triggered, it is likely
that there would be substantial variation
in what retailers understand to be
prohibited for sale after January 1, 2020.
In the face of this uncertainty, retailers
would be compelled to continue to
order and stock the full suite of lamp
offerings to avoid losing customers to a
competitor that offers a more
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comprehensive lamp selection, with
retailers risking stranded inventory.
However, the retailer’s financial risk of
keeping the shelves well-stocked goes
beyond the cost of the retailer inventory
stranded on the retailer’s shelves and
warehouses. The retailer’s financial
liability starts from the moment a
purchase order is placed in the supply
chain. Under most conditions, once an
order is placed the retailer cannot
cancel or modify the order without
penalty. (NEMA, No. 329 at p. 43;
LEDVANCE, No. 326 at p. 5) Thus, the
applicable inventory losses include all
losses associated with product orders
cancelled when a prohibition for which
a retailer is not adequately able to
anticipate and plan is effective. This
inability to take appropriate action in
advance of the prohibition on sales
would create costs associated with
potential stranded work in progress and
inventory in manufacturer warehouses
as well as the distribution channel.
(NEMA, No. 329 at p. 42; LEDVANCE,
No. 326 at p. 5) Contractually, the risks
and costs could be shared between
retailer and others in the supply chain,
but in all likelihood, and for sake of
simplicity, the analysis assumes that all
inventory costs are entirely passed on to
the retailer. The analysis does not
include explicit financial penalties for
cancelled orders because those values
are captured in the analysis as
opportunity costs to the retailer in the
form of lost sales revenue for all lamps
in the distribution chain.
Quantifying the inventory at risk
requires that the analysis estimates the
dollar value of lamps within the supply
chain when the prohibition would be
effective, in particular the dollar value
of those lamps subject to the
prohibition. From comments received,
DOE estimates that lamp inventory
turns over approximately 2 to 9 times
per year, placing at risk as few as 6
weeks or as many as 6 months of lamp
sales. (NEMA, No. 329 at p. 44; ALA,
No. 308 at p. 3; LEDVANCE, No. 326 at
p. 2) If the shelf space stays empty, the
financial loss equals the entire lost
revenue at the retail level. In theory, if
the shelf space is gradually filled with
other products the financial loss is
reduced. But the loss is reduced by only
a fraction of the replacement retail
revenue since contrary to the stranded
lamps inventory which has already been
paid to suppliers, the replacement
products to fill the vacated shelf space
has not been paid. In previous
rulemakings for GSLs DOE estimated
that product costs represented
approximately 66 percent of the retail
price of GSLs (accounting for
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replacement product costs).
Furthermore, in practice, identifying,
qualifying, and sourcing new products
is a process requiring many months
(LEDVANCE, No. 326 at pp. 3–4).
surrogate for unit sales because it is
presumed that retailer inventories
remain fairly constant from year to year
such that annual shipments track
closely with actual unit sales.
Shipments were assumed to be equally
spread among months of the year. Based
on comments from industry, as few as
6 weeks or as many as 6 months of
incandescent lamp sales may be at risk.
Thus, a low-end and high-end estimate
were calculated based on the two
different time frames.
2. Cost Estimate
NEMA’s confidential estimates of
total domestic shipments for the years
2015 to 2018 were used to forecast
future shipments. An exponential
forecast was determined to be the best
fit to the data provided. The analysis
uses manufacturer shipments as a
3. Results
DOE estimates that if retailers had on
their shelves incandescent lamps and
were prohibited from selling them, the
lost revenue in 2020 would range from
$64.3 million to $257 million (in
2016$). Sales of subject incandescent
lamps over the analyzed time period
(approximated by shipments) range
from 37.8 million to 151 million lamps
with an average lamp price of $1.70 (in
2016$).
TABLE 1—SUMMARY OF COST IMPACTS
Present value
(thousands 2016$)
Category
Cost Savings
Reduction in Uncertainty ..................................................................................................................
Discount rate
(percent)
$57,098–$228,393
$49,027–$196,108
3
7
($57,098)–($228,393)
($49,027)–($196,108)
3
7
Total Net Cost Impact
Total Net Cost Impact ......................................................................................................................
TABLE 2—SUMMARY OF ANNUALIZED COST IMPACTS
Annualized value
(thousands 2016$)
Category
Annualized Cost Savings
Reduction in Uncertainty ..................................................................................................................
Discount rate
(percent)
$1,713–$6,852
$3,432–$13,728
3
7
($1,713)–($6,852)
($3,432)–($13,728)
3
7
Total Net Annualized Cost Impact
Total Net Cost Impact ......................................................................................................................
The final rule yields annualized cost
savings of between approximately $3.4
million and $13.7 million using a
perpetual time horizon discounted to
2016 at a 7 percent discount rate.
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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,
and a final regulatory flexibility analysis
(FRFA) for any such rule that an agency
adopts as a final rule, unless the agency
certifies that the rule, if promulgated,
will not have a significant economic
impact on a substantial number of small
entities. As required by Executive Order
13272, ‘‘Proper Consideration of Small
Entities in Agency Rulemaking,’’ 67 FR
53461 (August 16, 2002), DOE
published procedures and policies on
February 19, 2003, to ensure that the
potential impacts of its rules on small
entities are properly considered during
the rulemaking process. 68 FR 7990.
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DOE has made its procedures and
policies available on the Office of the
General Counsel’s website (https://
energy.gov/gc/office-general-counsel).
DOE reviewed the withdrawal of the
revised definitions for GSL, GSIL and
related terms under the provisions of
the Regulatory Flexibility Act and the
procedures and policies published on
February 19, 2003. DOE certifies that
this final rule does not have a
significant economic impact on a
substantial number of small entities.
The factual basis for this certification is
set forth in the following paragraphs.
For manufacturers of GSLs, the SBA
has set a size threshold, which defines
those entities classified as ‘‘small
businesses’’ for the purposes of the
statute. DOE used the SBA’s small
business size standards to determine
whether any small entities would be
subject to the requirements of the rule
See 13 CFR part 121. The size standards
are listed by NAICS code and industry
description and are available at https://
www.sba.gov/document/support-tablesize-standards. Manufacturing of GSLs
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is classified under NAICS 335110,
‘‘Electric Lamp Bulb and Part
Manufacturing.’’ The SBA sets a
threshold of 1,250 employees or less for
an entity to be considered as a small
business for this category.
To estimate the number of companies
that could be small businesses that
manufacture GSLs covered by this
rulemaking, DOE conducted a market
survey using publicly available
information. DOE’s research involved
information provided by trade
associations (e.g., NEMA 13) and
information from DOE’s Compliance
Certification Database,14 EPA’s ENERGY
13 National Electric Manufacturers Association |
Member Products | Lighting Systems | Related
Manufacturers, https://www.nema.org/Products/
Pages/Lighting-Systems.aspx (last accessed
September 26, 2018).
14 DOE’s Compliance Certification Database |
Lamps—Bare or Covered (No Reflector) Medium
Base Compact Fluorescent, https://
www.regulations.doe.gov/certification-data (last
accessed September 26, 2018).
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STAR Certified Light Bulbs Database,15
previous rulemakings, individual
company websites, SBA’s database, and
market research tools (e.g., D&B
Hoover’s reports 16). DOE used
information from these sources to create
a list of companies that potentially
manufacture or sell GSLs and would be
impacted by this rulemaking. DOE
screened out companies that do not
offer products covered by this
rulemaking, do not meet the definition
of a ‘‘small business,’’ or are completely
foreign owned and operated. DOE
determined that eight companies are
small businesses that maintain domestic
production facilities for general service
lamps.
DOE notes that this final rule
withdraws the revised definitions of
GSIL and GSL that are effective in 2020
in order to maintain the existing
regulatory definitions of these terms,
which is the same as the statutory
definitions of these terms, including
exclusions of certain lamp types. As a
result, certain lamps will continue to be
exempt from complying with current
Federal test procedures and any
applicable Federal energy conservation
standards. For this reason, DOE
concludes and certifies that the
withdrawal of the definitions does not
have a significant economic impact on
a substantial number of small entities,
and the preparation of a FRFA is not
warranted.
D. Review Under the Paperwork
Reduction Act of 1995
Manufacturers of GSLs must certify to
DOE that their products comply with
any applicable energy conservation
standards. In certifying compliance,
manufacturers must test their products
according to the DOE test procedures for
GSLs, including any amendments
adopted for those test procedures. DOE
has established regulations for the
certification and recordkeeping
requirements for all covered consumer
products and commercial equipment.
See generally 10 CFR part 429. The
collection-of-information requirement
for the certification and recordkeeping
is subject to review and approval by
OMB under the Paperwork Reduction
Act (PRA). This requirement has been
approved by OMB under OMB control
number 1910–1400. Public reporting
burden for the certification is estimated
to average 30 hours per response,
including the time for reviewing
15 ENERGY STAR Qualified Lamps Product List,
https://downloads.energystar.gov/bi/qplist/
Lamps_Qualified_Product_List.xls?dee3-e997 (last
accessed September 26, 2018).
16 Hoovers | Company Information | Industry
Information | Lists, https://www.hoovers.com (last
accessed June 27, 2019).
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16:33 Sep 04, 2019
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instructions, searching existing data
sources, gathering and maintaining the
data needed, and completing and
reviewing the collection of information.
Notwithstanding any other provision
of the law, no person is required to
respond to, nor shall any person be
subject to a penalty for failure to comply
with, a collection of information subject
to the requirements of the PRA, unless
that collection of information displays a
currently valid OMB control number.
E. Review Under the National
Environmental Policy Act of 1969
Pursuant to the National
Environmental Policy Act (NEPA) of
1969, DOE has analyzed this proposed
action in accordance with NEPA and
DOE’s NEPA implementing regulations
(10 CFR part 1021). DOE has determined
that this rule qualifies for categorical
exclusion under 10 CFR part 1021,
subpart D, appendix A5 because it is a
rulemaking that amends an existing rule
that does not change the environmental
effect of the rule and meets the
requirements for application of a CX.
See 10 CFR 1021.410. Therefore, DOE
has determined that promulgation of
this rule is not a major Federal action
significantly affecting the quality of the
human environment within the meaning
of NEPA, and does not require an EA or
EIS.
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 has examined this final rule
and has determined that it does 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 products that are the subject of this
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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) Therefore, 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; (3)
provide a clear legal standard for
affected conduct rather than a general
standard; and (4) promote simplification
and burden reduction. 61 FR 4729 (Feb.
7, 1996). Regarding the review required
by section 3(a), 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 final
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 likely to result 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
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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 them. On
March 18, 1997, DOE published a
statement of policy on its process for
intergovernmental consultation under
UMRA. 62 FR 12820. DOE’s policy
statement is 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 (Public Law 105–277) requires
Federal agencies to issue a Family
Policymaking Assessment for any rule
that may affect family well-being. This
final rule does 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.
khammond on DSKBBV9HB2PROD with RULES
J. Review Under Executive Order 12630
Pursuant to Executive Order 12630,
‘‘Governmental Actions and Interference
with Constitutionally Protected Property
Rights,’’ 53 FR 8859 (March 15, 1988),
DOE has determined that this final rule
does 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 information quality
guidelines established by each agency
pursuant to general guidelines issued by
OMB. OMB’s guidelines were published
at 67 FR 8452 (Feb. 22, 2002), and
DOE’s guidelines were published at 67
FR 62446 (Oct. 7, 2002). DOE has
reviewed this final rule under the OMB
and DOE guidelines and has concluded
VerDate Sep<11>2014
16:33 Sep 04, 2019
Jkt 247001
that it is consistent with applicable
policies in those guidelines.
Authority: 42 U.S.C. 6291–6309; 28 U.S.C.
2461 note.
L. Review Under Executive Order 13211
Signed in Washington, DC, on: August 28,
2019.
Daniel R Simmons,
Assistant Secretary, Energy Efficiency and
Renewable Energy.
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 OMB, a
Statement of Energy Effects for any
proposed significant energy action. A
‘‘significant energy action’’ is defined as
any action by an agency that
promulgates or is expected to lead to
promulgation of a final rule, and that:
(1) Is a significant regulatory action
under Executive Order 12866, or any
successor order; and (2) is likely to have
a significant adverse effect on the
supply, distribution, or use of energy, or
(3) is designated by the Administrator of
OIRA as a significant energy action. For
any proposed significant energy action,
the agency must give a detailed
statement of any adverse effects on
energy supply, distribution, or use
should the proposal be implemented,
and of reasonable alternatives to the
action and their expected benefits on
energy supply, distribution, and use.
This regulatory action to withdraw
the revised definitions of GSL, GSIL and
supplemental definitions is not a
significant regulatory action under
Executive Order 12866. Moreover, it
would not have a significant adverse
effect on the supply, distribution, or use
of energy, 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
submit to Congress a report regarding
the issuance of this final rule prior to
the effective date set forth at the outset
of this rulemaking. The report will state
that it has been determined that the rule
is not a ‘‘major rule’’ as defined by 5
U.S.C. 801(2).
V. Approval of the Office of the
Secretary
The Secretary of Energy has approved
publication of this final rule.
List of Subjects in 10 CFR Part 430
Administrative practice and
procedure, Confidential business
information, Energy conservation,
Household appliances, Imports,
Incorporation by reference,
Intergovernmental relations, Small
businesses.
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
PART 430—ENERGY CONSERVATION
PROGRAM FOR CONSUMER
PRODUCTS
Accordingly, the final rules published
in the Federal Register on January 19,
2017 (82 FR 7276 and 82 FR 7322),
amending 10 CFR 430.2, which were to
become effective on January 1, 2020, are
withdrawn effective October 7, 2019.
■
[FR Doc. 2019–18940 Filed 9–4–19; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection
19 CFR Parts 12 and 141
[USCBP–2016–0075; CBP Dec. No. 19–11]
RIN 1651–AB02
Technical Correction to Centers of
Excellence and Expertise Regulations
U.S. Customs and Border
Protection, DHS.
ACTION: Final rule; technical correction.
AGENCY:
On December 20, 2016, U.S.
Customs and Border Protection (CBP)
published an interim final rule in the
Federal Register, which established the
Centers of Excellence and Expertise
(Centers) as a permanent organizational
component of the agency and
transitioned certain operational trade
functions to the Center directors that
traditionally resided with the port
directors. This technical correction
clarifies two sections of CBP regulations
that do not currently reflect CBP’s
operational structure or the objective of
the ‘‘Regulatory Implementation of the
Centers of Excellence and Expertise’’
interim final rule. This document
amends CBP regulations to correct the
discrepancies.
DATES: This final rule is effective on
September 5, 2019.
FOR FURTHER INFORMATION CONTACT: Lori
Whitehurst, CBP Office of Field
Operations, by telephone at (202) 344–
2536 or by email at lori.j.whitehurst@
cbp.dhs.gov; or Susan S. Thomas, CBP
Office of Field Operations, by telephone
at (202) 344–2511 or by email at
susan.s.thomas@cbp.dhs.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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[Federal Register Volume 84, Number 172 (Thursday, September 5, 2019)]
[Rules and Regulations]
[Pages 46661-46676]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18940]
=======================================================================
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DEPARTMENT OF ENERGY
10 CFR Part 430
RIN 1904-AE26
Energy Conservation Program: Definition for General Service Lamps
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final rules; withdrawal.
-----------------------------------------------------------------------
SUMMARY: On February 11, 2019, the U.S. Department of Energy (DOE)
published a notice of proposed rulemaking (NOPR) proposing to withdraw
the revised definitions of general service lamp (GSL), general service
incandescent lamp (GSIL) and other supplemental definitions, that were
to go into effect on January 1, 2020. DOE responds to comments received
on the NOPR in this final rule and maintains the existing regulatory
definitions of GSL and GSIL, which are the same as the statutory
definitions of those terms.
DATES: The final rules published on January 19, 2017 (82 FR 7276 and 82
FR 7322), are withdrawn effective October 7, 2019.
ADDRESSES: The docket is available for review at https://www.regulations.gov. All documents in the docket are listed in the
https://www.regulations.gov index. However, some documents listed in the
index may not be publicly available, such as those containing
information that is exempt from public disclosure.
The docket web page can be found at: https://www.regulations.gov/docket?D=EERE-2018-BT-STD-0010. The docket web page contains
instructions on how to access all documents in the docket.
FOR FURTHER INFORMATION CONTACT: Appliance Standards staff, U.S.
Department of Energy, Office of Energy Efficiency and Renewable Energy,
Building Technologies, EE-2J, 1000 Independence Avenue SW, Washington,
DC 20585-0121. Telephone: (202) 287-1445. Email:
[email protected].
Ms. Celia Sher, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Telephone: (202) 287-6122. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Authority and Background
II. Synopsis of Final Rule
III. Discussion of Comments
A. Scope of Products Included in the Definitions of GSIL and GSL
1. Imposition of the Backstop
2. EPCA's Anti-Backsliding Provision
B. Withdrawal of Revised GSL and GSIL Definitions
1. General Authority
2. Five Specialty Incandescent Lamps
3. Incandescent Reflector Lamps
4. T-Shape, B, BA, CA, F, G16-1/2, G25, G30, S, M-14 and
Candelabra Base Lamps
5. Supplemental Definitions
C. Additional Issues
1. Preemption
2. Manufacture Date in Lieu of Sales Prohibition
3. Consumer/Environmental Harm
4. Data
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866 and 13563
B. Review Under Executive Order 13771
1. Analytical Approach
2. Cost Estimate
3. Results
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act of 1995
E. Review Under the National Environmental Policy Act of 1969
F. Review Under Executive Order 13132
G. Review Under Executive Order 12988
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under the Treasury and General Government
Appropriations Act, 1999
J. Review Under Executive Order 12630
K. Review Under the Treasury and General Government
Appropriations Act, 2001
L. Review Under Executive Order 13211
M. Congressional Notification
V. Approval of the Office of the Secretary
I. Authority and Background
Title III, Part B of the Energy Policy and Conservation Act of 1975
(EPCA or the Act), Public Law 94-163 (42 U.S.C. 6291-6309, as
codified), established the Energy Conservation Program for Consumer
Products Other Than Automobiles, a program covering most major
household appliances (collectively referred to as ``covered
products''), which includes general service lamps (GSLs), the subject
of this final rule. Amendments to EPCA in the Energy Independence and
Security Act of 2007 (EISA) directed DOE to conduct two rulemaking
cycles to evaluate energy conservation standards for GSLs. (42 U.S.C.
6295(i)(6)(A)-(B)) GSLs are currently defined in EPCA to include
general service incandescent lamps (GSILs), compact fluorescent lamps
(CFLs), general service light-emitting diode (LED) lamps and organic
light-emitting diode (OLED) lamps, and any other lamps that the
Secretary of Energy (Secretary) determines are used to satisfy lighting
applications traditionally served by general service incandescent
lamps. (42 U.S.C. 6291(30)(BB))
For the first rulemaking cycle, Congress instructed DOE to initiate
a rulemaking process prior to January 1, 2014, to consider two
questions: (1) Whether to amend energy conservation standards for
general service lamps and (2) whether ``the exemptions for certain
incandescent lamps should be maintained or discontinued.'' (42 U.S.C.
6295(i)(6)(A)(i)) Further, if the Secretary determines that the
standards in effect for GSILs should be amended, EPCA provides that a
final rule must be published by January 1, 2017, with a compliance date
at least 3 years after the date on which the final rule is published.
(42 U.S.C. 6295(i)(6)(A)(iii)) In developing such a rule, DOE must
consider a minimum efficacy standard of 45 lumens per watt (lm/W). (42
U.S.C. 6295(i)(6)(A)(ii)) If DOE fails to complete a rulemaking in
accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv) or a final rule from
the first rulemaking cycle does not produce savings greater than or
equal to the savings from a minimum efficacy standard of 45 lm/W, the
statute provides a ``backstop'' under which DOE must prohibit sales of
GSLs that do not meet a minimum 45 lm/W standard beginning on January
1, 2020. (42 U.S.C. 6295(i)(6)(A)(v))
The EISA-prescribed amendments further directed DOE to initiate a
second rulemaking cycle by January 1, 2020, to determine whether
standards in effect for GSILs should be amended with more-stringent
requirements and if the exemptions for certain incandescent lamps
should be maintained or discontinued. (42 U.S.C. 6295(i)(6)(B)(i)) For
this second review of energy conservation standards, the scope is not
limited to incandescent lamp technologies. (42 U.S.C.
6295(i)(6)(B)(ii))
DOE initiated the first GSL standards rulemaking process by
publishing in the Federal Register a notice of public meeting and
availability of the framework document. 78 FR 73737 (Dec. 9, 2013); see
also 79 FR 73503 (Dec. 11, 2014) (notice of public meeting and
availability of preliminary technical support document). DOE later
issued a NOPR to propose amended energy conservation standards for
GSLs. 81 FR 14528, 14629-14630 (Mar. 17, 2016) (the March 2016 NOPR).
The March 2016 NOPR focused on the first question
[[Page 46662]]
that Congress directed DOE to consider--whether to amend energy
conservation standards for general service lamps. (42 U.S.C.
6295(i)(6)(A)(i)(I)) In the March 2016 NOPR proposing energy
conservation standards for GSLs, DOE stated that it would be unable to
undertake any analysis regarding GSILs and other incandescent lamps
because of a then applicable congressional restriction (the
Appropriations Rider) \1\ on the use of appropriated funds to implement
or enforce 10 CFR 430.32(x). 81 FR 14528, 14540-14541 (Mar. 17, 2016).
Notably, the Appropriations Rider was readopted and extended
continuously in multiple subsequent legislative actions, and only
expired on May 5, 2017, when the Consolidated Appropriations Act of
2017 was enacted.\2\
---------------------------------------------------------------------------
\1\ Section 312 of the Consolidated and Further Continuing
Appropriations Act, 2016 (Pub. L. 114-113, 129 Stat. 2419) prohibits
expenditure of funds appropriated by that law to implement or
enforce: (1) 10 CFR 430.32(x), which includes maximum wattage and
minimum rated lifetime requirements for GSILs; and (2) standards set
forth in section 325(i)(1)(B) of EPCA (42 U.S.C. 6295(i)(1)(B)),
which sets minimum lamp efficiency ratings for incandescent
reflector lamps.
\2\ See, the Consolidated Appropriations Act of 2017 (Pub. L.
115-31, div. D, tit. III); see also, Consolidated Appropriations
Act, 2018 (Pub. L. 115-141).
---------------------------------------------------------------------------
In response to comments to the March 2016 NOPR, DOE conducted
additional research and published a notice of proposed definition and
data availability (NOPDDA), which proposed to amend the definitions of
GSIL and GSL. 81 FR 71794, 71815 (Oct. 18, 2016). DOE explained that
the October 2016 NOPDDA related to the second question that Congress
directed DOE to consider--whether ``the exemptions for certain
incandescent lamps should be maintained or discontinued,'' and stated
explicitly that the NOPDDA was not a rulemaking to establish an energy
conservation standard for GSLs. (42 U.S.C. 6295(i)(6)(A)(i)(II)); see
also 81 FR 71798. The relevant ``exemptions,'' DOE explained, referred
to the 22 categories of incandescent lamps that are statutorily
excluded from the definitions of GSIL and GSL. 81 FR 71798. In the
NOPDDA, DOE clarified that it was defining what lamps constitute GSLs
so that manufacturers could understand how any potential energy
conservation standards might apply to the market. Id.
On January 19, 2017, DOE published two final rules concerning the
definition of GSL. 82 FR 7276; 82 FR 7322. The January 2017 definition
final rules amended the definitions of GSIL and GSL by bringing certain
categories of lamps that had been excluded by statute from the
definition of GSIL within the definitions of GSIL and GSL. Like the
October 2016 NOPDDA, DOE stated that the January 2017 definition final
rules related only to the second question that Congress directed DOE to
consider, regarding whether to maintain or discontinue certain
``exemptions.'' (42 U.S.C. 6295(i)(6)(A)(i)(II)). That is, neither of
the two final rules issued on January 19, 2017, established, or even
purported to establish, energy conservation standards applicable to
GSLs. Although the two final rules were published on January 19, 2017,
neither rule has yet gone into effect because the effective date was
set as January 1, 2020.
With the removal of the Appropriations Rider in the Consolidated
Appropriations Act, 2017, DOE was no longer restricted from undertaking
the analysis and decision making required to address the first question
presented by Congress, i.e., whether to amend energy conservation
standards for general service lamps, including GSILs. Thus, on August
15, 2017, DOE published a notice of data availability and request for
information (NODA) seeking data for GSILs and other incandescent lamps.
82 FR 38613. The purpose of this NODA was to assist DOE in making a
decision on the first question posed to DOE by Congress; i.e., a
determination regarding whether standards for GSILs should be amended.
Comments submitted in response to the NODA also led DOE to re-consider
the decisions it had already made with respect to the second question
presented to DOE; i.e., whether the exemptions for certain incandescent
lamps should be maintained or discontinued. As a result of the comments
received in response to the NODA, DOE also re-assessed the legal
interpretations underlying certain decisions made in the January 2017
definition final rules. Accordingly, DOE issued a NOPR on February 11,
2019 to withdraw the revised definitions of GSL, GSIL, and the
supporting definitions established in the January 2017 definition rules
(the February 2019 NOPR). 84 FR 3120. DOE held a public meeting on
February 28, 2019 to hear oral comments and solicit information and
data relevant to the February 2019 NOPR.
The following sections of this preamble respond to comments
received on the February 2019 NOPR and during the NOPR public meeting.
II. Synopsis of Final Rule
In this rule, DOE withdraws the revised definitions of GSL and GSIL
established in the January 2017 definition final rules which would
otherwise take effect on January 1, 2020. These definitions included
certain GSILs as GSLs in a manner that is not consistent with the best
reading of the statute. Additionally, DOE withdraws the supplemental
definitions established in the January 2017 definition final rules that
are no longer necessary in light of the withdrawal of the revised
definitions of GSL and GSIL. This rule maintains the existing
definitions of GSL and GSIL currently found in DOE's regulations, which
are the same as the statutory definition of those terms. Specifically,
the rule maintains the statutory exclusions of specified lamps from the
definition of GSIL, and thus, such lamps would not be GSLs. DOE does
not make a determination in this rule whether standards for GSLs,
including GSILs, should be amended. Rather, this rule establishes the
scope of lamps to be considered in that determination. DOE will make
that determination in a separate rulemaking.
III. Discussion of Comments
A. Scope of Products Included in the Definitions of GSIL and GSL
In the February 2019 NOPR, DOE proposed to retain the existing
statutory exclusions from the GSIL definition by withdrawing the
revised definition of GSL, which, among other lamps, included as GSILs
the five specialty incandescent lamps regulated under 42 U.S.C.
6295(l)(4), namely rough service lamps, vibration service lamps, 3-way
incandescent lamps, high lumen lamps and shatter-resistant lamps.
Additionally, DOE proposed to maintain the existing exclusion of
incandescent reflector lamps (IRLs) from the statutory definitions of
GSIL and GSL, as well as T-shape lamps that use no more than 40 W or
have a length of more than 10 inches, B, BA, CA, F, G16-1/2, G25, G30,
S, and M-14 lamps of 40 W or less. Further, DOE proposed that
candelabra base incandescent lamps not be considered GSL because the
existing definition of GSIL applies only to medium screw base lamps. 84
FR 3122-3123. DOE noted in the February 2019 NOPR that, because it had
not yet made a final determination on whether standards applicable to
GSILs should be amended per 42 U.S.C. 6295(i)(6)(A)(iii), no backstop
energy conservation standard has been imposed. 81 FR 3123. In response,
DOE received numerous comments relating to whether the backstop
requirement for GSLs in 42 U.S.C. 6295(i)(6)(A)(v) had been triggered
and the applicability of EPCA's anti-backsliding provision in 42 U.S.C.
6295(o), which precludes DOE from amending an existing energy
[[Page 46663]]
conservation standard to permit greater energy use or a lesser amount
of energy efficiency.
1. Imposition of the Backstop
DOE received comments from the National Electrical Manufacturers
Association (NEMA), Westinghouse Lighting, Signify North America
Corporation (Signify), GE Lighting, and the American Lighting
Association (ALA) agreeing with DOE's statement in the February 2019
NOPR that the backstop standard in 42 U.S.C. 6295(i)(6)(A)(v) has not
been triggered since the Secretary has not determined whether to amend
GSIL standards under 42 U.S.C. 6295(i)(6)(A)(iii), and so there is no
obligation yet to publish a rule in accordance with the 42 U.S.C.
6295(i)(6)(A)(i)-(iv). (NEMA, No. 329 at p. 40; Westinghouse Lighting,
No. 360 at p. 1; Signify, No. 354 at p. 1; GE Lighting, No. 325 at p.
1; ALA, No. 308 at p. 2) Further, these commenters supported NEMA's
assertion that the backstop is not self-executing, and, per EPCA,
requires the Secretary to first make a prohibitory order under 42
U.S.C. 6295(i)(6)(A)(v), which the Secretary has not yet done because
the conditions precedent to that prohibitory order in 42 U.S.C.
6295(i)(6)(A)(v) have not occurred. That is, NEMA asserted that the
Secretary has not failed to complete a rulemaking in accordance with
clauses (i) through (iv) or that such final rule does not produce
savings that are greater than or equal to the savings from a minimum
efficacy standard of 45 lm/W because the obligation to issue such a
rule does not yet exist. (NEMA, No. 329 at p. 40)
There were also commenters who disagreed with DOE's preliminary
determination in the February 2019 NOPR regarding the application of
the backstop. Such commenters include Earthjustice, the Natural
Resources Defense Council (NRDC), Sierra Club, U.S. Public Interest
Research Group and Environment America (collectively, the Joint
Commenters), the Appliance Standards Awareness Project and 13 co-
signing organizations \3\ (ASAP), the California Energy Commission
(CEC), Pacific Gas and Electric Company (PG&E) and San Diego Gas and
Electric (SDG&E), and the Attorney Generals of California, New York,
New Jersey, Oregon, Colorado, Connecticut, Illinois, Maine, Maryland,
Michigan, Minnesota, North Carolina, Vermont, Washington, the
Commonwealth of Massachusetts, the District of Columbia and the City of
New York (collectively, the State Attorneys General). These commenters
assert the backstop standard was triggered by DOE's failure to complete
a rulemaking in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv). Thus,
beginning on January 1, 2020, the commenters believe that the sale of
any GSLs having a luminous efficacy less than 45 lm/W is unlawful under
EPCA. (See Joint Commenters, No. 335 at p. 4) Additionally, the Joint
Commenters noted that DOE cannot use its inaction to complete a
rulemaking as a result of the Appropriations Rider to allow it to
indefinitely block the application of the backstop standard for GSLs.
(Joint Commenters, No. 335 at p. 7) PG&E and SDG&E further noted that
the pre-emption exemption in 42 U.S.C. 6295(i)(6)(A)(vi) would serve no
purpose if DOE had no limitation on its timeline to complete the
rulemaking. (PG&E and SDG&E, No. 348 at pp. 4-5) PG&E and SDG&E also
discounted the argument that DOE needs to take an additional action to
make the backstop enforceable. Instead, they stated the backstop was
triggered by DOE's failure to comply with clauses (i)-(iv) in section
6295(i)(6)(A) of EPCA and that these provisions have binding effect
without the need for prior notice and opportunity for comment, similar
to the manner in which DOE finalized the backstop requirements for
rough service and vibration service lamps, which were treated as a mere
administrative formality. (PG&E and SDG&E, No. 348 at p. 5)
---------------------------------------------------------------------------
\3\ These co-signing organizations are the: American Council for
an Energy Efficient Economy, Conservation Law Foundation, Consumer
Federation of America, E4TheFuture, Florida Consumer Action Network,
National Consumer Law Center, Natural Resources Defense Council,
Northeast Energy Efficiency Partnerships, Southeast Energy
Efficiency Alliance, Southwest Energy Efficiency Alliance, Texas
Ratepayers Organization to Save Energy, Vermont Energy Investment
Corporation, and Vermont Public Interest Research Group.
---------------------------------------------------------------------------
By law, the Secretary must initiate a rulemaking by January 1, 2014
to determine whether standards in effect for GSLs should be amended and
whether exemptions for certain incandescent lamps should be maintained
or discontinued based, in part, on exempted lamp sales. (42 U.S.C.
6295(i)(6)(A)(i)) If the Secretary determines that standards in effect
for GSILs should be amended, the Secretary is obligated to publish a
final rule establishing such standards no later than January 1, 2017.
(42 U.S.C. 6295(i)(6)(A)(iii)) If the Secretary makes a determination
that standards in effect for GSILs should be amended, failure by the
Secretary to publish a final rule by January 1, 2017, in accordance
with the criteria in the law, would result in the imposition of the
backstop provision in 42 U.S.C. 6295(i)(6)(A)(v). That backstop
requirement would require that the Secretary prohibit the sale of any
GSL that does not meet a minimum efficacy standard of 45 lm/W.
DOE initiated the first GSL standards rulemaking process by
publishing a notice of availability of a framework document in December
2013, which satisfied the requirements in 42 U.S.C. 6295(i)(6)(A)(i) to
initiate a rulemaking by January 1, 2014. DOE subsequently issued the
March 2016 NOPR proposing energy conservation standards for GSLs, but
was unable to undertake any analysis regarding GSILs and other
incandescent lamps in the NOPR because of a then-applicable
Appropriations Rider. Now that the Appropriations Rider has been
removed, DOE is able to undertake the analysis to determine whether
standards for GSLs, including GSILs, should be amended per the
requirements in 42 U.S.C. 6295(i)(6)(A)(i). DOE has issued a proposed
determination published elsewhere in this issue of the Federal Register
in order to complete its obligations under the statute that were
precluded from being completed by DOE previously by application of the
Appropriations Rider.
DOE received many comments pointing to DOE's failure, per 42 U.S.C.
6295(i)(6)(A)(iii), to publish a standards rulemaking for GSILs by
January 1, 2017 as evidence that DOE has triggered the backstop
provision, because DOE had not completed a rulemaking in accordance
with 42 U.S.C. 6295(i)(6)(A)(i)-(iv). However, the statutory deadline
on the Secretary to complete a rulemaking by January 1, 2017, is
premised on the Secretary first making a determination that standards
for GSILs should be amended. The Secretary only fails to meet the
requirement in 42 U.S.C. 6295(i)(6)(A)(iii) if he determines that
standards for GSILs should be amended and fails to publish a rule
prescribing standards by January 1, 2017. That is, 42 U.S.C.
6295(i)(6)(A)(iii) does not establish an absolute obligation on the
Secretary to publish a rule by a date certain, as is the case in
numerous other provisions in EPCA. See 42 U.S.C. 6295(e)(4); 42 U.S.C.
6295(u)(1)(A); and 42 U.S.C. 6295(v)(1). Rather, the obligation to
issue a final rule prescribing standards by a date certain applies if,
and only if, the Secretary makes a determination that standards in
effect for GSILs need to be amended. Interpreting the statute otherwise
would suggest that, if the Secretary were to make a determination that
standards in effect for GSILs do not need to be amended, the Secretary
nonetheless has
[[Page 46664]]
an obligation to issue a final rule setting standards for those lamps
he determined did not necessitate amended standards. And, further, DOE
disagrees with the assertion that the Secretary's failure to issue a
rule the obligation for which does not yet exist would lead to
imposition of a sales prohibition applicable to the very lamps about
which the Secretary must still decide whether amended standards are
needed. Although different readings of the statutory language have been
suggested, DOE believes that the best reading of the statute is that
Congress intended for the Secretary to make a predicate determination
about GSILs, otherwise it could result in a situation where a
prohibition is automatically imposed for a category of lamps that the
Secretary may conclude is unnecessary. Since DOE has not yet made the
predicate determination on whether to amend standards for GSILs, the
obligation to issue a final rule by a date certain does not yet exist
and, as a result, the condition precedent to the potential imposition
of the backstop requirement does not yet exist and no backstop
requirement has yet been imposed.
DOE disagrees that it does not need to take an additional action to
make the backstop enforceable, similar to the manner in which it
handled the final rule for rough and vibration service lamps.\4\ DOE's
final rule for rough and vibration service lamps was not an exercise of
agency discretion, but merely codified the statutory requirements that
already applied to those lamps. Congress codified a separate regulatory
process for rough and vibration service lamps in 42 U.S.C. 6295(l)(4)
that includes a distinct backstop provision for each of the five lamp
types that is triggered if specific objective criteria are met, namely
when annual sales grow to be more than 100 percent above an
extrapolated level of historical sales. Once these sales benchmarks
have been exceeded, DOE is required, without discretion, to develop its
own energy conservation standard and if it fails to do so by a time
certain the backstop is mandated by the statute. This is in direct
contrast to the discretion accorded the Secretary before any backstop
for GSLs is triggered, i.e., the determination whether standards in
effect for GSILs need to be amended. Presently, some further action is
required on the part of DOE before any backstop is enforceable to GSLs.
DOE acknowledges that it will need to address the backstop in a future
rulemaking, should the Secretary make a determination that standards in
effect for GSILs need to be amended. To that end, DOE has issued a
proposed determination published elsewhere in this issue of the Federal
Register.
---------------------------------------------------------------------------
\4\ See Docket ID: EERE-2017-BT-STD-0057.
---------------------------------------------------------------------------
2. EPCA's Anti-Backsliding Provision
NEMA, with the support of Westinghouse Lighting, Signify, GE
Lighting, and ALA, agreed with DOE's position in the February 2019 NOPR
that rescinding the January 19, 2017 definition of GSL is not
backsliding within the meaning of 42 U.S.C. 6295(o)(1), because, in the
case of DOE's 2017 definition of GSL, the government cannot illegally
backslide from a position it could not legally stand upon in the first
place. (NEMA, No. 329 at p. 41)
On the contrary, commenters including the Joint Commenters, ASAP,
the National Association of State Utility Consumer Advocate (NASUCA),
CEC, PG&E/SDG&E, the State Attorneys General, the United States
Senators, Consumer Groups, Colorado Office of Consumer Counsel,
Connecticut Dept. of Energy and Environmental Protection, and the
Emmett Institute on Climate Change and the Environment at UCLA School
of Law (Emmett Institute) all asserted that DOE's proposal in the
February 2019 NOPR would violate the anti-backsliding provision in 42
U.S.C. 6295(o) of EPCA. By narrowing the scope of the term ``general
service lamp,'' the Joint Commenters stated that DOE's proposed action
will exempt from the backstop standard all lamp types excluded from the
GSL definition in this rulemaking. Instead of meeting the 45 lm/W
backstop standard level, each lamp of a type excluded from the
definition of GSL will have to meet a weaker energy conservation
standard, or no standard at all. Accordingly, in repealing the January
2017 final definitions, the Joint Commenters argued DOE is reducing the
minimum energy efficiency required of those lamps that it is excluding
from the term ``general service lamp,'' which is an action the anti-
backsliding provision forbids. (Joint Commenters, No. 335 at p. 10) The
Joint Commenters stated that the anti-backsliding provision applies not
only to DOE actions that amend the numerical level of a standard, but
also to actions that alter the scope of a standard by exempting
products. (Joint Commenters, No. 335 at p. 4) Similarly, the State
Attorneys General asserted that, according to the court in Hearth,
Patio and Barbecue Ass'n v. U.S. DOE,\5\ definitional changes can
result in the imposition of otherwise inapplicable numerical standards.
(State Attorneys General, No. 350 at p.7) The Emmett Institute cited
NRDC v. Abraham \6\ to support its anti-backsliding argument, noting
that it is irrelevant that the GSL standards for the seven categories
of lamps have not yet reached their effective date, as these lamps
became subject to GSL standards at the time the January 2017 definition
final rules were published. (Emmett Institute, No. 341 at pp. 4-5) The
Joint Commenters rejected DOE's argument in the February 2019 NOPR that
its proposal to withdraw the GSL and GSIL definitions could not be
considered backsliding because the proposal does not constitute an
amendment of an existing energy conservation standard. The Joint
Commenters pointed out that in the February 2019 NOPR, DOE claimed that
the proposed rule fit within a categorical exclusion from National
Environmental Policy Act (NEPA) review that applies to certain
rulemakings that establish energy conservation standards for consumer
products and industrial equipment. These commenters asserted that DOE
cannot simultaneously avail itself of this exemption while at the same
time asserting that its instant action is not an energy conservation
standard rulemaking, but rather a precursor to any standards
development for GSLs. (Joint Commenters, No. 335 at p. 21; see also
State Attorneys General, No. 350 at p. 28)
---------------------------------------------------------------------------
\5\ 706 F.3d 499 (D.C. Cir. 2013).
\6\ 355 F.3d 179 (2nd Cir. 2004).
---------------------------------------------------------------------------
The anti-backsliding provision at 42 U.S.C. 6295(o)(1) precludes
DOE from amending an existing energy conservation standard to permit
greater energy use or a lesser amount of energy efficiency. This
provision is inapplicable to the current rulemaking because DOE has not
established an energy conservation standard for GSLs from which to
backslide. Commenters' assertions that the anti-backsliding provision
has been violated hinge on the assumption that the backstop requirement
for GSLs in 42 U.S.C 6295(i)(6)(A)(v) has been triggered and is
currently in effect. However, DOE makes clear in this rule that it has
not yet made the predicate determination of whether to amend standards
for GSILs, and therefore the backstop is not yet in effect--meaning
that any discussion of backsliding is misplaced. For similar reasons,
DOE disagrees with commenters' reliance on NRDC v. Abraham to support
their anti-backsliding argument. In that case, the Second Circuit held
that the publication date in the Federal Register of a final rule
establishing an energy conservation standard operates as the point at
which
[[Page 46665]]
EPCA's anti-backsliding provision applies to a new or amended standard.
355 F.3d at 196. This case is inapplicable to the present rulemaking
since DOE has not yet published a final rule amending standards for
GSLs, nor has DOE issued a final determination on whether GSIL
standards should be amended or issued a rule codifying the statutory
backstop in DOE's regulations. DOE has only published the January 2017
definition final rules, which constituted a decision only on whether to
maintain or discontinue various lamp exclusions. The January 2017
definition final rules were explicit that they were not setting any
standards. Moreover, the 2017 rules did not follow the statutory
procedures for promulgating efficiency standards as would be required,
because the rules were only defining terms, not setting standards.
While these definition rules have an effective date of 2020, this date
is irrelevant for purposes of whether anti-backsliding applies, since
the rule did not establish a standard. Further, even if the backstop
was triggered, it does not apply, by the terms of the statute, until
January 1, 2020. DOE does not agree that the 2017 definition final
rules amending the GSIL and GSL definitions, or this final rule
withdrawing the 2017 final rules, constitutes a change in scope of a
standard. But even under a theory that considers the GSIL and GSL
definitions as changing the scope of a standard, the present
circumstances still are in contrast with those in Abraham. As DOE has
never published a final rule establishing a standard to serve as the
starting point to consider anti-backsliding, DOE could change that
scope prior to the date Congress chose for start of the supposed
standard, i.e., January 1, 2020, without violating the anti-backsliding
provision.
Furthermore, even if the backstop requirement in EPCA were to
apply, it would operate as a sales prohibition for any GSL that does
not meet a minimum efficacy standard of 45 lm/W. The anti-backsliding
provision states that the Secretary cannot prescribe any amended
standard that would allow greater energy use or less efficiency. EPCA
defines an energy conservation standard for consumer products as a
performance standard that prescribes a minimum efficiency level or
maximum quantity of energy usage for a covered product or, in certain
circumstances, a design requirement. (42 U.S.C. 6291(6)) In contrast, a
sales prohibition in EPCA is tied to whether a transaction in commerce
can occur with respect to a covered product, but the prohibition is not
itself a standard.\7\ Because the scope of a sales prohibition is not
the same as a standard, the minimum efficacy standard of 45 lm/W
mandated by the backstop's sales prohibition is unchanged by this final
rule. The anti-backsliding provision in 42 U.S.C. 6295(o) limits the
Secretary's discretion only in prescribing standards, not sales
prohibitions, and thus is inapplicable to the backstop requirement for
GSLs in 42 U.S.C 6295(i)(6)(A)(v). Therefore, DOE has the authority to
change the scope of what lamps would apply to any sales prohibition for
GSLs, assuming the backstop applied.
---------------------------------------------------------------------------
\7\ See 42 U.S.C. 6302(a)(5) for another example of a sales
prohibition.
---------------------------------------------------------------------------
DOE agrees with commenters that it did not use the appropriate NEPA
categorical exclusion for the February 2019 NOPR (even though DOE did
use the same categorical exclusion used in the 2017 definition final
rules) and has corrected this oversight. In this final rule, DOE has
referenced the applicable categorical exclusion, 10 CFR part 1021,
subpart D, appendix A5, to more accurately reflect the effect of this
rulemaking, which amends the previously proposed definition for GSLs to
that of the original statutory language and does not change the
environmental effect of the rule being amended See section III.C.3 for
further explanation as to how correcting this oversight by utilizing
the appropriate categorical exclusion does not result in environmental
harm.
B. Withdrawal of Revised GSL and GSIL Definitions
1. General Authority
Several commenters objected generally to the DOE's lack of
authority in the February 2019 NOPR to withdraw the GSL, GSIL and
supplemental definitions. For example, the Joint Commenters asserted
DOE's failure to explain the legal basis for its proposal, or even to
provide supporting citations, violates the Administrative Procedure Act
(APA) and is defective as a matter of law. The Joint Commenters further
asserted that DOE must provide stakeholders notice and a meaningful
opportunity to comment on the legal authority DOE believes authorizes
this action. (Joint Commenters, No. 335 at p. 2) Additionally, PG&E and
SDG&E commented that DOE is overstepping its authority from Congress by
creating or reinstating lamp exemptions; pursuant to 42 U.S.C.
6295(i)(6)(A)(i)(II), DOE may only maintain or discontinue them. To the
extent DOE re-exempts lamps from the GSIL and/or GSL definition, PG&E
and SDG&E, and similarly, the State Attorneys General, stated that DOE
will have acted beyond the express scope of its statutory authority.
(PG&E and SDG&E, No. 348 at p. 4; see also State Attorneys General, No.
350 at p. 10)
The February 2019 NOPR invoked DOE's authority under the 2007 EISA-
prescribed amendments to EPCA which directed DOE to consider whether
``the exemptions for certain incandescent lamps should be maintained or
discontinued.'' 42 U.S.C. 6295(i)(6)(A)(i)(II). In the 2017 definition
final rules, DOE interpreted the ``exemptions'' to refer to the 22
excluded lamp categories from the definition of GSL and concluded that
it has authority to bring the excluded lamps within the definition of
GSIL and GSL. 81 FR 71798; 82 FR 7277. As noted, DOE did not make any
determinations with regard to amending standards for GSILs in the 2017
definition final rules because it was prohibited from doing so by the
Appropriations Rider. When the Appropriations Rider was lifted in the
Consolidated Appropriations Act, 2017, DOE regained its statutory
authority to determine whether to amend standards for GSILs, and so
issued the 2017 NODA seeking data for GSILs and other incandescent
lamps. With the additional benefit of the comments and data arising
from the 2017 NODA, DOE reviewed its earlier interpretation of the
statute and subsequently identified fundamental inaccuracies underlying
its determination to revise the definitions of GSL and GSIL in the 2017
definition final rules. As discussed in more detail in Section B. of
this final rule, DOE has determined that its prior action of defining
IRLs as GSLs is not consistent with the best reading of statute,
because Congress explicitly stated in the statute, in two distinct
provisions, that these reflector lamps are not within the scope of the
definition of GSLs. Additionally, DOE has determined that its prior
action of defining candelabra base incandescent lamps within the
definition of GSIL is not consistent with the best reading of the
statute, because the existing definition of GSIL applies only to medium
screw base lamps that candelabra base lamps do not have. Further, DOE
discovered that it had overestimated shipment numbers for candelabra
base incandescent lamps by a factor of more than two. As a result of
this new information gathering and the restoration of DOE's decision-
making authority under the statute upon the removal of the
Appropriations Rider, DOE reassessed its original legal
[[Page 46666]]
interpretations which were based on an incomplete picture of GSILs. DOE
believes maintaining the existing statutory exemptions for the 22
categories of lamps excluded from the definition of GSL is the best
interpretation of the statute.
For purposes of the APA, this rulemaking is amending a rule
previously published based on the receipt of additional and more
accurate information, as well as based on a re-interpretation of the
statute. To the extent that the APA issues raised in the comments are
based on DOE's use of the word ``withdraw'' in both the proposed rule
and this final rule, DOE points out that this word is a reflection of
the status of the 2017 definition final rules and amendatory
instruction requirements of the Office of the Federal Register. That
is, because the 2017 definition final rules do not take effect until
January 1, 2020, those rules cannot be ``amended'' for purposes of the
Federal Register prior to January 1, 2020; rather a change to those
rules prior to their January 1, 2020, effective date constitutes a
``withdrawal''.
2. Five Specialty Incandescent Lamps
In the February 2019 NOPR, DOE proposed to maintain the existing
exclusions for rough service lamps, shatter-resistant lamps, 3-way
incandescent lamps, high lumen incandescent lamps (2,601-3,300 lm) and
vibration service lamps in the definition of GSIL and GSL. 84 FR 3124.
DOE tentatively determined that since these lamps are subject to
standards in accordance with a specific regulatory process under 42
U.S.C. 6295(l)(4), there is no need to undertake an additional process
for determining whether to establish energy conservation standards for
these lamp types as GSLs under 42 U.S.C. 6295(i)(6)(A)(i). Doing so
would potentially subject these lamps types to two separate standards
and create confusion among regulated entities as to which one applies.
Id.
NEMA, with the support of other commenters such as Westinghouse
Lighting, Signify, GE Lighting, and ALA, agreed with DOE's preliminary
determination, and noted that DOE has already decided to discontinue
the exemption of rough service lamps and vibration service incandescent
lamps in accordance with the specific statutory regulatory regime for
those lamps stated in the statute. NEMA stated the specific conditions
precedent for the regulation of three other types of exempt
incandescent lamps specifically called out by Congress in 42 U.S.C.
6295(l)(4) have not occurred, and therefore discontinuance of the
exemptions for those three lamps is unwarranted under the statute.
(NEMA, No. 329 at p. 41) DOE also received comments objecting to its
proposed exemptions for the five specialty incandescent lamps on the
grounds of ``double regulation.'' PG&E and SDG&E pointed out that GSLs
are already defined by statute to include both GSILs and CFLs, both of
which are also regulated by separate statute, and clearly intended by
Congress to be subject to the backstop requirement. (PG&E and SDG&E,
No. 348 at p. 6) PG&E and SDG&E stated that with DOE's interpretation
of the statute, there is no scenario where these five lamp types could
ever be considered GSLs, which is in direct conflict with Congress's
instructions in 42 U.S.C. 6295(i)(6)(A)(i)(II) to DOE to consider
discontinuing their exemptions statuses. Additionally, the Joint
Commenters commented that the NOPR points to no evidence indicating
that regulating the five tracked lamps as GSLs would create confusion,
nor does it even begin to explore how the standards for GSLs would
interact with the standards currently imposed for rough service and
vibration service lamps. The Joint Commenters noted that EPCA requires
that DOE provide justification for its conclusion to discontinue these
five exempted lamps with substantial evidence per 42 U.S.C. 6306(b)(2).
(Joint Commenters, No. 335 at p. 16)
Congress excluded these five categories of lamps from the
definition of GSIL and GSL, and it codified a distinct regulatory
process for these lamps in 42 U.S.C. 6295(l)(4). This final rule
confirms what the statue already requires, that these lamps are subject
to separate statutory requirements set forth in 42 U.S.C. 6295(l)(4).
Thus, DOE is not additionally regulating these five lamp types as GSLs
under 42 U.S.C. 6295(i)(6)(A)(i).
The regime for potential regulation of the five lamp types was
added to the statute in the same enactment that required DOE to
consider standards for GSLs, i.e., the Energy Independence and Security
Act of 2007, Public Law 110-140, see section 321(a)(4). Moreover, in
both instances the criteria stated in the statute for consideration for
standards was based on sales of the subject lamps. If Congress had
intended for these five lamp types to be considered for potential
inclusion under the GSL authority there would have been little reason
to have also established a separate process for potential imposition of
energy conservation standards using similar criteria. As such, DOE
agrees that, using this logic, these five lamp types could not be GSLs.
However, DOE disagrees that this interpretation conflicts with
Congressional instruction in 42 U.S.C. 6295(i)(6)(A)(i)(II). Notably,
the language in this section refers to ``exemptions for certain
incandescent lamps.'' Thus, this provision still has meaning even if
the five (l)(4) lamps are excluded from applicability.
3. Incandescent Reflector Lamps
In the first January 2017 definition final rule (the 2017 GSL
Rule), DOE adopted a regulatory definition of GSL that maintained the
existing exemption for IRLs. In the second definition final rule (the
2017 IRL Rule), issued simultaneously, DOE determined to discontinue
the IRL exemption, and amended its definition of GSL and GSIL
accordingly. In the February 2019 NOPR, DOE revisited its determination
relating to the IRL exemption, and proposed to remove IRLs from the
definition of GSIL established in the 2017 IRL Rule. In the February
2019 NOPR, DOE pointed out that since IRLs are twice excluded from the
definition of GSL in 42 U.S.C. 6291(30)(BB)(ii)(II), it is clear that
Congress did not want the Secretary to include IRLs within the
definition of GSL. 84 FR 3124.
In response to DOE's proposal relating to IRLs, NEMA with the
support of Westinghouse Lighting, Signify, GE Lighting, and ALA,
reiterated its prior comments in the prior rulemaking proceeding and
additionally noted that the general service incandescent lamp is the
``standard incandescent or halogen lamp type,'' 42 U.S.C.
6291(30)(D)(i), which is a reference to the standard pear-shape bulb
that provides omnidirectional light output. (NEMA, No. 329 at p. 4)
Thus, NEMA stated that the traditional general service incandescent
lighting applications do not include light bulbs that provide focused
or ``directional'' lighting such as reflector lamps.'' NEMA provided
additional details about the different characteristics and applications
of reflector lamps that deviate in a material way from the
characteristics and lighting applications of a general service
incandescent lamp as defined by Congress. (NEMA, No. 329 at pp. 18-21)
Specifically, that reflector lamps are traditionally used in different
applications compared to GSLs, normally recessed sockets that takes
advantage of the bulb's unique direction downlight capacity to a task
or area on a counter or workspace; in small recessed sockets where
general service A-line lamp will not fit; in track lighting where
directional light is narrowly focused to accent a spot on a wall; and
in outdoor fixtures where illumination for security or accenting a
garden area
[[Page 46667]]
is desired by a consumer. NEMA concluded that GSILs are not
traditionally used in these directional lighting applications. (NEMA,
No. 329 at p. 21)
The Joint Commenters responded that IRLs provide general lighting
and should be included in the definition of GSLs and subject to the
same standards. They commented that Congress's act of (allegedly)
repeating itself in the definition of GSL by twice exempting IRLs
should not undermine an otherwise broad grant of authority provided in
42 U.S.C. 6295(i)(6)(A)(i)(II) to remove these exemptions. (Joint
Commenters, No. 335 at p. 17) PG&E and SDG&E also disagreed with DOE's
interpretation of IRLs in the February 2019 NOPR, stating that it
creates ambiguity by permanently preserving a GSL exemption that was
otherwise left to DOE's discretion. (PG&E and SDG&E, No. 348 at p. 7)
PG&E and SDG&E noted that DOE recognized in the prior rulemaking that
the definitions of ``reflector lamps'' and ``IRL'' were meant to
encompass a different range of lamps. (PG&E and SDG&E, No. 348 at p. 7)
PG&E and SDG&E further commented that DOE's assertion that IRLs are
regulated elsewhere in the statute and therefore should not be
considered GSLs is inconsistent with the regulation of other lamp types
such as GSILs and CFLs, which are explicitly GSLs and are also
regulated elsewhere in EPCA. (PG&E and SDG&E, No. 348 at p. 7)
Additionally, PG&E and SDG&E commented that DOE's definition of general
service LEDs (GSLEDs), which are also explicitly GSLs, includes LED
reflector lamps as well as LED omni-direction lamps. (PG&E and SDG&E,
No. 348 at p.7) They noted that GSLEDs are not defined by
directionality and that it would create further inconsistencies for LED
reflector lamps to be defined as GSLs but not their incandescent
counterparts. (PG&E and SDG&E, No. 348 at pp. 7-8)
DOE does not have the authority to regulate IRLs as GSLs, because
the statute plainly states, in 42 U.S.C. 6291(30)(BB)(ii)(I), that the
term ``general service lamp'' does not include the list of lamps that
were excluded from the term general service incandescent lamp (which
includes reflector lamps). The statute then continues by specifically
excluding any general service fluorescent lamp or incandescent
reflector lamp. 42 U.S.C. 6291(30)(BB)(ii)(II). The notion that DOE was
given a ``broad grant of authority provided in 42 U.S.C.
6295(i)(6)(A)(i)(II) to remove these exemptions'' attempts to suggest
that DOE has the authority by rule to amend a statute. Simply put, DOE
does not have that authority. DOE has to implement the law as written.
And, where Congress has spoken directly to an issue it is not within
the agency's power to act in contravention of that statement. To the
extent that one might argue the statute is unclear on this point, DOE
believes that it is the best reading (and, consequently, a reasonable
reading) of the statute that Congress's express statements in two
distinct provisions that IRLs are not GSLs should be interpreted as
meaning that Congress intended that DOE not consider IRLs to be GSLs.
Apart from consideration as a GSL, DOE continues to have the authority
to establish energy conservation standards applicable to IRLs under
separate requirements set by Congress in 42 U.S.C. 6295(i)(3).
With regard to comments on the definition of GSLEDs, for
consistency in this rule, DOE removes all supplemental definitions
adopted in the January 2017 definition final rules, including the
definition of GSLED. This rulemaking relates only to whether the 22
categories of lamps exempted from the definition of GSL should be
maintained or discontinued per the requirements in 42 U.S.C.
6295(i)(6)(A)(i)(II).
4. T-Shape, B, BA, CA, F, G16-1/2, G25, G30, S, M-14 and Candelabra
Base Lamps
EPCA defines the term GSL to include any other lamps that the
Secretary determines are used to satisfy lighting applications
traditionally served by GSILs. (42 U.S.C. 6291(30)(BB)(i)(IV)). In the
2017 GSL Rule, DOE determined that lamps that would satisfy the same
applications as traditionally served by GSILs are ones that would
provide overall illumination and can functionally be a ready
substitute, or ``convenient unregulated alternative'' for lamps already
covered as GSLs. 82 FR 7277. To inform its assessment as to which GSL
exclusions should be maintained, DOE also used sales data, as the
statute directs in 42 U.S.C. 6295(i)(6)(A)(i)(II). Id. Consequently,
the definitions of GSL and GSIL adopted in the January 2017 definition
final rules included a broad array of specialty incandescent lamps and
candelabra base lamps, such as T-Shape, B, BA, CA, F, G16-1/2, G25,
G30, S, and M-14 lamps. In the February 2019 NOPR, and in direct
response to stakeholder comments, DOE proposed to withdraw the revised
definitions of GSIL and GSL which added T-shape lamps and B, BA, CA, F,
G16-1/2, G25, G30, S, and M-14 lamps to the definition of GSIL,
agreeing with commenters that it may have overstepped its limited
authority by relying on factors which Congress did not intend it to
consider. 84 FR 3125. In the February 2019 NOPR, DOE further
acknowledged it is unlikely Congress intended that DOE have broad
discretion to regulate an incandescent lamp out of existence based on
an assumption that manufacturers could make and sell an LED version of
the lamp or that Congress authorized DOE to eliminate ``convenient
unregulated alternatives'' that DOE concluded could undercut this
unstated intent of Congress. Id. Along these lines, DOE also proposed
to withdraw its revision to the GSL definition that included all lamps
having an ANSI base, such as candelabra base lamps. DOE preliminarily
determined that overbreadth in its January 2017 definition final rules
had the consequence of including lamps such as candelabra base lamps as
GSLs, even though such lamps could not meet the statutory definition of
GSIL since such lamps do not have a medium screw base. New data
submitted by NEMA also indicated that DOE's estimated shipment numbers
for candelabra base incandescent lamps were potentially too high by a
factor of more than two. Id.
NEMA, Westinghouse Lighting, Signify, GE Lighting, ALA and Lucidity
Lights, dba/Finally Bulbs submitted comments in support of DOE's
proposal to withdraw these lamp shapes from the definitions of GSL and
GSIL, with NEMA stating that it avoided sweeping into a regulatory
scheme special purpose bulbs that would be inappropriate, for both
technical and economic reasons, to regulate in the same manner as the
GSIL, the CFL or the general service LED lamp. (NEMA, No. 329 at p.31)
These commenters agreed that DOE overstepped its authority by
redefining GSLs as outlined in the 2007 EISA legislation. (See Finally
Bulbs, No. 253 at p. 1; GE Lighting, No. 325 at p. 2, NEMA, No. 329 at
p. 3) For example, GE Lighting commented that the intent of the 2007
EISA law, governing lightbulb regulation, was to regulate 40w, 60w,
75w, and 100w general service incandescent A-line lamps as well as
lamps that can be used in applications traditionally served by general
service incandescent A-line lamps. (GE Lighting, No. 325 at p. 2) NEMA
pointed out that the statutory test of whether the Secretary can
include other lamps in the definition of ``general service lamp''
beyond the three types of light bulbs specified in the statute is that
the ``other lamps'' must be used to satisfy lighting applications
traditionally served by general service incandescent lamps.'' 42
[[Page 46668]]
U.S.C. 6291(30)(BB)(i)(IV). (NEMA, No. 329 at p. 4) Thus, when Congress
authorized DOE to determine whether the exemptions for certain
incandescent lamps should be maintained or discontinued in 42 U.S.C.
6295(i)(6)(A)(i)(II), this authorization did not include applying
energy conservation standards applicable to general service lamps to a
broad array of light bulbs with odd bulb shapes and designs, limited
light output, uncommon applications, and unusual lamp bases. (NEMA, No.
329 at p. 31) NEMA stated that these are not traditional applications
of the general service incandescent lamp; DOE overstepped its limited
authority by relying on factors which Congress did not intend it to
consider such as whether a lamp is a ``convenient unregulated
alternative.'' (NEMA, No. 329 at p. 4). Additionally, it was brought to
the attention of DOE by representatives of the Federal Aviation
Administration (FAA), that some of the lamps listed in the February
2019 NOPR are used in critical aviation applications, such as
navigational aids, airfield lighting, and airfield signage and as yet
the lamps used in those safety-critical applications do not have
acceptable LED alternatives. Furthermore, according to the FAA, the
nation's busiest passenger airports have been aggressively
transitioning their lighting systems to LED technology over the past
decade and by its estimation this conversion should reach its optimum
penetration over the next 5 years.
In contrast, DOE received numerous comments from stakeholders
asserting that DOE failed to provide an adequate reason for its
departure from its previous interpretation of congressional intent.
(See State Attorneys General, No. 350 at p. 12) For example, the Joint
Commenters stated that, in basing its decision to discontinue
exemptions for non-pear lamps on unit sales in combination with other
factors, DOE was acting entirely within its discretion under EPCA.
(Joint Commenters, No. 335 at p. 18) Similarly, the Joint Commenters
noted that DOE lawfully invoked its authority under 42 U.S.C.
6291(30)(BB)(i)(IV) to include candelabra lamps within the definition
of general service lamp. (Joint Commenters, No. 335 at p. 20) The Joint
Commenters, as well as PG&E and SDG&E commented that this provision
does not require that a bulb be able to fit within the definition of
general service lamp; the provision simply requires that the bulb be
able to serve the same lighting application. Id. (PG&E and SDG&E, No.
348 at 7) Similarly, the California Investor Owned Utilities (CA IOUs)
commented at the public meeting for the February 2019 NOPR that, while
GSILs typically have a medium screw base, GSLs are supposed to also
capture CFLs, GSLEDs, and OLEDs, and those have more than just [medium
screw] \8\ base types. (CA IOUs, Public Meeting Transcript, No. 44 at
p. 92) PG&E and SDG&E and the Joint Commenters also asserted that
NEMA's updated shipment information for candelabra lamps does not
support a repeal. The Joint Commenters stated that the February 2019
NOPR ignores the limited role of shipment information in deciding
whether a lamp is ``used to satisfy lighting applications traditionally
served by general service incandescent lamps.'' (Joint Commenters, No.
335 at p. 20) Similarly, PG&E and SDG&E commented that DOE's previous
usage of the concept of ``lamp-switching potential'' to address non-
sales-based considerations was supported by various stakeholders as a
means for proactively addressing product loopholes that would otherwise
proliferate. (PG&E and SDG&E, No. 348 at p. 6) DOE's assertion that it
must depend only on sales for evidence of lamp switching to warrant the
discontinuation of exemptions would remove DOE's discretion to maintain
or discontinue exemptions, which is contrary to Congress's express
intent in EISA. (PG&E and SDG&E, No. 348 at p. 6)
---------------------------------------------------------------------------
\8\ DOE's public meeting transcript was incomplete regarding
this statement from the CA IOUs. DOE has added what it believes to
be the missing language.
---------------------------------------------------------------------------
The definition of ``general service lamp'' includes specific
categories of lamps, along with ``any other lamps that the Secretary
determines are used to satisfy lighting applications traditionally
served by general service incandescent lamps.'' 42 U.S.C.
6291(30)(BB)(i). DOE determines that its January 2017 definition final
rules that treated specialty lamps such as T-Shape, B, BA, CA, F, G16-
1/2, G25, G30, S, M-14 and candelabra base lamps as GSLs is not
consistent with the best reading of the statute, because such lamps are
not used in the same applications as the standard general service
incandescent lamp. The exemptions from the GSIL definition for the
specific shapes listed in the previous sentence generally apply to
lamps of 40 watts or less. DOE agrees with NEMA that traditional
general service incandescent lighting applications do not include light
bulbs that provide only a limited range of light output, such as light
bulbs with very dim light output because of their low wattage. (NEMA,
No. 329 at pp. 4-5) Furthermore, as described by NEMA, decorative light
bulbs such as those with a ``candle'' shape bulb (``B'' blunt tip;
``BA'' bent tip; ``C'' flame tip; ``CA'' bent tip; ``F'' flame shape)
and small globe shape lamps (G16.5) have a form factor that is not as
large as the general service incandescent lamp's pear shape bulb. These
decorative light bulbs present a decorative aesthetic to the consumer
that is not replicated in the general service incandescent lamp, which
is not used in decorative applications. The decorative bulb serves a
different application for the consumer than the GSIL. When these
decorative bulbs are mounted on a medium screw base, they are by
definition low wattage (<= 40W) and therefore low lumen lamps and will
not serve the broader range of light outputs sought by consumers for
applications traditionally served by general service incandescent
lamps. (NEMA, No. 329 at p. 24) Lamps with an S shape have a small form
factor, low wattage, and low lumen output; they are used in marquee
signs and sometimes in appliance applications, night lights, and lava
lamps. Lamps with a T shape have a tubular form factor and are also low
wattage and low lumen lamps; they are typically used in music stands
and showcase displays. Neither S nor T shape lamps are used in
applications traditionally served by GSILs. (NEMA, No. 329 at p. 25)
With respect to candelabra base lamps, these lamps additionally could
not meet the statutory definition of GSIL since such lamps do not have
a medium screw base. This distinction is important, as the purpose of
this rule is to determine whether the statutory exclusions from GSILs
should be retained per 42 U.S.C. 6295(i)(6)(A)(i)(II). As a pure matter
of law, a candelabra base lamp cannot be a GSIL because EPCA defines a
GSIL, in part, as having a medium-screw base. Congress made plain in
the statute the scope of lamps it authorized DOE to consider. To the
extent there is any uncertainty on this point, DOE believes the best
interpretation of the statute is to remain within bounds of the
existing statutory definition. DOE is no longer using ``convenient
unregulated alternatives'' as a basis upon which to discontinue
exemptions for specialty lamp types. This type of consideration is
never mentioned in the statute and DOE agrees with those commenters
that assert it goes beyond the authority granted to it by Congress to
use the potential that a lamp may be considered a loophole to GSL
standards as the basis
[[Page 46669]]
for discontinuing its exemption under the statute.
In response to commenters asserting otherwise, DOE believes it gave
proper weight to its consideration of the sales information for
candelabra base lamps provided by manufacturers. The data provided by
NEMA indicated that shipments of candelabra base incandescent lamp have
been in a continuous decline since 2011 and there is no evidence of
increasing shipments. (NEMA, No. 329 at p. 41) As sales data is the
only factor Congress specifically pointed to in determining whether
exemptions for certain incandescent lamps should be maintained or
discontinued in 42 U.S.C. 6295 (i)(6)(A)(i)(II), DOE finds it
appropriate to give this manufacturer data considerable weight in
determining whether to maintain the exemption for the regulation of
candelabra base lamps as GSLs. In light of the declining shipments for
candelabra base lamps and the fact that consumers use candelabra as
well as T-shape, B, BA, CA, F, G16-1/2, G25, G30, S, M-14 lamps for
different applications than a general service incandescent lamp, in
this final rule, DOE withdraws the revised definitions of GSL and GSIL,
and maintains the current exclusion of these lamp shapes from the
definitions of GSL/GSIL.
5. Supplemental Definitions
In the February 2019 NOPR, DOE proposed to withdraw the revised
definitions of GSL and GSIL established in the January 2017 definition
final rules as well as the supplemental definitions established in
those rules that would no longer be necessary in light of the proposed
withdrawal of the revised definitions of GSL and GSIL. 84 FR 3122.
NEMA, with the support of Westinghouse Lighting, Signify, GE Lighting,
and ALA provided comments supporting the retention of certain
supplemental definitions, stating that it would be beneficial to define
statutory terms that are undefined in the statute or are found in the
current DOE regulations where DOE has adopted the statutory term or are
appropriate in connection with these definitions. (NEMA, No. 329 at p.
33) GE Lighting additionally commented that if DOE is reverting to the
original definitions in the EISA 2007 law, this should include keeping
definitions for excluded lamps. (GE Lighting, No. 325 at p. 3) NEMA
also requested that DOE modify the definition of GSLEDs to be
consistent with the February 2019 NOPR and the intent of Congress.
(NEMA, No. 329 at p. 34) NEMA derived its proposed definition of GSLED
from the congressional definition of the medium base compact
fluorescent lamp. (NEMA, No. 329 at p. 34)
For consistency in this rule, DOE removes all supplemental
definitions adopted in the January 2017 definition final rules,
including the definition of GSLED. DOE anticipates addressing undefined
statutory terms in a future GSL standards rulemaking in which it can
consider these issues with the benefit of analysis and public comment.
C. Additional Issues
Commenters expressed concern over a number of additional issues
arising out of the February 2019 NOPR, which are discussed below.
1. Preemption
Northwest Energy Efficiency Alliance (NEEA), the Emmett Institute,
the New York Assembly Commission on Science and Technology, and the
National Association of Statue Utility Consumer Advocates (NASUCA)
provided comments generally that if DOE rescinds the revised
definitions of GSL and GSIL established in the January 2017 definition
final rules, states will resume regulation of these lamps, leaving a
patchwork of state regulations for retailers to navigate. (NEEA, No.
358 at p. 2; Emmett Institute, No. 341 at pp. 6-7; New York Assembly
Commission on Science and Technology, No. 321 at p. 2; NASUCA, No. 347
at p. 7; Green Energy Consumers Alliance, No. 322 at p. 1) Signify
requested that DOE address directly the issue of preemption for states
that have adopted, or are adopting a 45 lm/W GSL standard and the
expanded definitions promulgated on January 19, 2017. (Signify, No. 354
at p. 2) Signify prefers a strong regulatory framework, noting that a
patchwork of different State regulations is counter-productive, hurts
manufacturers and ultimately increases costs for consumers and stymies
market adoption and energy savings. (Signify, No. 354 at p. 2)
Federal energy conservation requirements generally supersede state
laws or regulations concerning energy conservation standards. (42
U.S.C. 6297(a)-(c)) Absent limited exceptions, states generally are
precluded from adopting energy conservation standards for covered
products both before an energy conservation standard becomes effective,
and after an energy conservation standard becomes effective. (42 U.S.C.
6297(b) and (c)) However, the statute contains three narrow exceptions
to this general preemption provision specific to GSLs in 42 U.S.C.
6295(i)(6)(A)(vi). Under the limited exceptions from preemption
specific to GSLs that Congress included in EPCA, only California and
Nevada have authority to adopt, with an effective date beginning
January 1, 2018 or after, either:
(1) A final rule adopted by the Secretary in accordance with 42
U.S.C. 6295(i)(6)(A)(i)-(iv);
(2) If a final rule has not been adopted in accordance with 42
U.S.C. 6295(i)(6)(A)(i)-(iv), the backstop requirement under 42 U.S.C.
6295(i)(6)(A)(v); or
(3) In the case of California, if a final rule has not been adopted
in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), any California
regulations related to ``these covered products'' adopted pursuant to
state statute in effect as of the date of enactment of EISA 2007.
DOE clarifies in this rule that none of these narrow exceptions
from preemption are available to California or Nevada. The first
exception applies if DOE determines that standards in effect for GSILs
need to be amended and issues a final rule setting standards for these
lamps in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv). In that
event, California and Nevada would be allowed to adopt a rule identical
to the Federal standards rule. This exception does not apply since DOE
had not yet determined whether standards in effect for GSILs need to be
amended and thus has not issued a final rule setting standards for
these lamps in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv). The
second exception allows California and Nevada to adopt the statutorily
prescribed backstop of 45 lm/W if DOE determines standards in effect
for GSILs need to be amended and fails to adopt a final rule for these
lamps in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv). This
exception does not apply because DOE has not yet made the determination
on whether to amend standards for GSILs, and thus no obligation
currently exists for DOE to issue a final rule setting standards for
these lamps in accordance with the 42 U.S.C. 6295(i)(6)(A)(i)-(iv). The
third exception does not apply since there are no California efficiency
standards for GSLs in effect as of the date of enactment of EISA 2007.
Therefore, all states, including California and Nevada, are prohibited
from adopting energy conservation standards for GSLs.
2. Manufacture Date in Lieu of Sales Prohibition
Signify and Finally Bulbs requested that DOE's final GSL standard
rulemaking should impose an effective date tied to a manufacturing date
as opposed to a sales date. (Signify, No. 354 at p. 2) Finally Bulbs
commented that a sales ban generates multiple
[[Page 46670]]
issues that would result in financial losses throughout distribution
channels. (Finally Bulbs, No. 253 at p. 2)
DOE notes that the sales prohibition on GSLs that do not meet a
minimum 45 lm/W standard beginning on January 1, 2020 would go into
effect only if the backstop has been triggered. If the backstop
requirement had been triggered the sales prohibition would be required
by statute under 42 U.S.C. 6295(i)(6)(A)(v) and DOE has no discretion
to change this requirement.
3. Consumer/Environmental Harm
DOE received many comments, including 64,145 bulk comments
contained in batched form letters, two spreadsheets, and executive
correspondence surrounding the alleged uncertainty introduced by the
February 2019 NOPR and its potential to increase costs for retailers
and consumers while damaging the environment. (See ASAP, No. 331 at p.
8; NEEA, No. 358 at p. 2; Ceres BICEP Network, No. 313 at p. 3; Green
Mountain Power, No. 259 at p. 1; United States Climate Alliance, No.
270 at pp. 1-2) The Sierra Club and NRDC filed several comments from
individuals through a form letter process. The Sierra Club submitted
comments from 3,788 individuals strongly urging DOE to abandon its
proposal stating that it would cost Americans billions in electricity
bills and put millions of tons of greenhouse gases and pollutants in
the atmosphere. These commenters also stated that application of more
stringent requirements for recessed lighting, chandeliers, and other
decorative fixtures beginning in 2020 will save consumers nearly $12
billion annually. Additionally, they noted that the adoption of
lighting standards have already greatly increased the market for high-
efficiency LED bulbs and the proposal was taking them in the wrong
direction. (Sierra Club, No. 236, 238, 240, 244, 246, 390, 392, 395,
397, 399, 401, 403, 405, 407, 408, 410, 412, 414, 415, 417,421, 423,
424 at all pages) The NRDC submitted comments from 46,945 individuals
stating strong opposition to DOE's proposal to narrow the scope of
light bulbs covered by what commenters understood as the upcoming 2020
backstop. Further, these commenters stated that DOE's proposal would
cost consumers billions of dollars in additional annual energy costs
and increase carbon emissions by millions of tons. (NRDC, No. 343, 359
at spreadsheet attachment) NASUCA commented that consumers of essential
utility service stand to lose environmental benefits and millions of
dollars in energy efficiency savings if the DOE rolls back lighting
standards. (NASUCA, No. 347 at p. 4) NEEA noted that the proposal, if
finalized, will cause utilities in the Northwest region to replace the
lost energy savings either by building more power plants or by creating
more utility programs around other products to achieve the savings
through much less cost-effective means. (NEEA, No. 358 at p. 1) The
Energy Strategy Coalition \9\ asserted that the February 2019 NOPR
would hinder technological progress and make it harder for them to
reduce their systems' emissions and provide cost-saving programs to
customers (Energy Strategy Coalition, No. 324 at p. 3) The California
Municipal Utilities Association, SMUD, CEC, PG&E and SDG&E, the
Consumer Federation of America and the National Consumer Law Center
(Consumer Groups), the United States Senate, and the Colorado Energy
Office also generally noted that substantial consumer benefits are
threatened by DOE's withdrawal of the definition final rules as, among
other things, it will result in increased energy consumption and higher
electricity bills. (SMUD, No. 312 at p. 2; CEC, No. 332 at p. 4; PG&E
and SDG&E, No. 348 at pp. 1-2; Consumer Groups, No. 310 at p. 2; United
States Senate, No. 377 at p.1 and Colorado Energy Office, No. 330 at p.
1) Joint commenters from utilities/energy associations (collectively,
NorthWestern Energy),\10\ as well as comments from the Sunrise Bay Area
Hub, estimated that DOE's proposal to rescind the 2017 definition of
GSL would reduce household energy savings by an average of $100 every
year (as of 2025). (NorthWestern Energy, No. 327 at p. 1; Sunrise Bay
Area Hub, No. 317 at p. 1) Many of these commenters, as well as the
Green Energy Consumers Alliance, the American Chemical Society, the New
York State Assembly Commission on Science and Technology, the Nevada
Governor's Office of Energy, and the Connecticut Department of Energy
and Environmental Protection also asserted that the February 2019 NOPR
will release even more carbon emissions from the power sector. (Green
Energy Consumers Alliance, No. 322 at p. 1; American Chemical Society,
No. 298 at p. 1; the New York State Assembly Commission on Science and
Technology, No. 321 at p. 1; the Nevada Governor's Office of Energy,
No. 171 at p. 1; and the Connecticut Department of Energy and
Environmental Protection, No. 261 at p.2) Further, the State Attorneys
General, CEC and the Emmett Institute commented that DOE's proposed
action has significant environmental effects which must be evaluated
under NEPA. (State Attorneys General, No. 350 at p. 27; CEC, No. 332 at
p. 5; and Emmett Institute, No. 341 at p. 7) Emmett Institute stated
that the February 2019 NOPR would almost certainly result in a
significant increase in energy consumption once numerous categories of
lamps are no longer subject to EPCA standards. The State Attorneys
General added that the proposed rule violates other environmental laws,
including the Endangered Species Act, the Coastal Zone Management Act,
and the National Historic Preservation Act. (State Attorneys General,
No. 350 at p. 31)
---------------------------------------------------------------------------
\9\ These commenters include: Austin Energy, Con Edison, Exelon
Corporation, Los Angeles Department of Water and Power, National
Grid, New York Power Authority, Pacific Gas & Electric Corporation,
Sacramento Municipal Utility District, and Seattle City Light.
\10\ These commenters include: Ameren Missouri, American
Electric Power, Arizona Public Service, Austin Energy, Avista,
Berkshire Hathaway Energy, Chelan County PUD, California Municipal
Utilities Association, Cedarburg Light & Water Utility, Consumers
Energy, CPS Energy, Dominion Energy, DTE Energy Company, Entergy
Corporation, Evergy, Eversource, Exelon Utilities, Hawaiian
Electric, Idaho Power, Kerrville Public Utility Board (Texas),
Lincoln Electric System (Nebraska), Long Island Power Authority, Los
Angeles Department of Water and Power, New York Power Authority,
NorthWestern Energy, PNM Resources, PSEG, Portland General Electric,
Puget Sound Energy, Sacramento Municipal Utility District, San Diego
Gas & Electric, Seattle City Light, Southern California Edison,
Tacoma Public Utilities, Tucson Electric Power, Vistra Energy, and
Xcel Energy.
---------------------------------------------------------------------------
As DOE has consistently stated throughout this rulemaking, this
rule to withdraw the revised definitions of GSL and GSIL is not a
standard. The January 2017 definition final rules likewise were
emphatic in stating that they were not setting a standard. DOE has not
applied the backstop requirement to the lamps that remain as GSL or to
those that are being withdrawn from the definition. The obligation for
DOE to consider energy conservation standards for lamps considered to
be GSLs remains and DOE is working toward completing that task. More
importantly for purposes of responding to these comments, this rule
does not prevent consumers from buying the lamps they desire, including
efficient options. NEMA's market and lamp shipment data analysis
demonstrates that the average GSL product in the market already has an
average efficacy greater than 45 lm/w. (NEMA, No. 329 at p. 49)
Further, NEMA's confidential data provided to DOE, and the lamps
consumers find currently offered for sale at retail establishments,
shows that the market is successfully transitioning to LEDs regardless
of government regulation. Consumers are clearly taking advantage of the
energy savings provided by LEDs, and the data provided by NEMA gives
[[Page 46671]]
no indication that the current market direction toward an increasing
use of LED lamps will change as a result of this rule or any other
factor. This final rule does not affect the availability of efficient
LED lamp types, and DOE anticipates that consumers will continue to
purchase and install highly efficient lighting options. As such, there
is nothing about this rule that will lead to the need for more power
generation, increased emissions, or lost consumer benefits. Consumers
who already benefit from the wide availability of LEDs will continue to
do so.
Lastly, in response to the concerns raised regarding the increase
in energy consumption and environmental effects of this rule, DOE
reiterates that this rulemaking addresses the scope of the definitions
for GSL and GSIL and does not adopt an energy conservation standard for
these products. DOE acknowledges that the February 2019 NOPR referenced
an inapplicable categorical exclusion to meet its NEPA obligations to
evaluate the environmental impact of the rulemaking. DOE recognizes
that it can still comply with NEPA through the use of a different
categorical exclusion. As this rulemaking changes the scope of an
existing rule that does not alter the environmental effect of the rule
being amended, DOE determined the categorical exclusion under 10 CFR
part 1021, subpart D, appendix 5A, applies. (10 CFR 1021.410) \11\ DOE
now seeks to correct this oversight.
---------------------------------------------------------------------------
\11\ 10 CFR part 1021, subpart D, appendix 5A Interpretative
rulemakings with no change in environmental effect, (``Rulemakings
interpreting or amending an existing rule or regulation that does
not change the environmental effect of the rule or regulation being
amended.'').
---------------------------------------------------------------------------
Further, although the February 2019 NOPR relied on the same
categorical exclusion used in the January 2017 definition final rules
that were met with no objections,\12\ this rulemaking, as DOE has
earlier explained, is not the adoption of an energy conservation
standard, and is distinct from the types of rules that would accurately
fall under Categorical Exclusion B5.1(b). Like the January 2017
definition final rules, this action does not establish an energy
conservation standard, but rather only defines certain statutory terms
(here, by adhering to the existing definitions in the statute).
Moreover, as previously noted, the 2017 definition final rules are not
yet in effect. Consequently, DOE's action in this rule does not result
in a change to the environmental effect of the existing rule being
amended. (10 CFR 1021.410) A change that would result in a measurable
environmental impact would be the product of a separate regulatory
action, such as setting energy conservation standards which this rule
does not adopt. DOE's action here maintains the scope of the
definitions of GSL and GSIL as that of the statute and withdraws a
broader scope and supplemental definitions prior to their having taken
effect. These actions are limited to identifying which lamps are
defined as GSLs and GSILs and do not cause a change to the
environmental effect of the existing rule. In fact, this action
maintains the status quo. As such, this action, therefore, fits within
this A5 categorical exclusion and its use meets DOE's obligations to
evaluate the environmental impact of its proposed action under NEPA.
---------------------------------------------------------------------------
\12\ 82 FR 7276, 7319; 82 FR 7322, 7331; 10 CFR part 1021,
appendix B5.1(b).
---------------------------------------------------------------------------
4. Data
The February 2019 NOPR, and this final rule, address two issues:
(1) The scope of lamp types included in the definitions of GSL and
GSIL; and (2) the applicability of the 2020 backstop requirement. Issue
1, because it relates to definitions and does not establish or
materially change any standard, is not a subject of analysis under
DOE's statutory requirements at 42 U.S.C. 6295(o)(2)(B). As a result,
DOE did not draft an analysis of these definitional changes and did not
seek comments on any analysis of these changes.
In contrast, Issue 2 reduces market uncertainty to a significant
extent by clarifying the applicability of a 2020 backstop sales
prohibition. DOE sought comment in its February 2019 NOPR on data that
would enable it to better analyze this issue. Specifically, DOE sought
comment on seven topics related to the distribution of relevant lamps
throughout the retail cycle and the potential opportunity cost to
retailers of transitioning lamp types into and out of stock. 84 FR
3127. DOE sought comment on these topics to enable an analysis of the
second issue dealt with in this final rule--that is, the degree to
which clarifying applicability of the 2020 backstop will reduce
uncertainty in the market. This analysis is unrelated to Issue 1, which
deals with the definitions that are changed by this final rule.
DOE received responses to these seven data questions from multiple
commenters. In particular, NEMA, LEDVANCE, and ALA provided data
dealing with the retail channel pipeline, travel time for wholesale
goods, length of time lamps sit on a retail shelf, and the proportion
of bays, sales, or inventory that constitutes lighting products. (NEMA,
No. 329 at pp. 42-44; LEDVANCE, No. 326 at pp. 1-5; ALA, No. 308 at pp.
3-4)
Commenters provided information on procurement cycles for lamp
retailers, including timeframes for procurement and transit. NEMA
provided a high level generalization of the manufacturer experience in
working with retail customers, indicating that the total time between
the retailer's initial factory order and when a consumer can purchase a
good can range from 4 weeks to 6 months or longer. (NEMA, No. 329 at p.
44) NEMA states that the purchase cycle begins when a purchase order is
placed with the lamp factory, based on retailer demand. For lower to
medium volume products, retailers typically place regular stocking
orders based on a one to two week lead time for cartons and pallets.
However, NEMA stated that a longer lead time (60 to 75 days) is needed
for larger, full container orders to deliver directly to a retailer's
distribution center. Once received, the goods remain in a retailer's
distribution center between two and four weeks until the goods are
shipped to individual store locations based on individual item/store
demand. (NEMA, No. 329 at pp. 43-44) LEDVANCE further illustrated the
upstream timing considerations and stated that it takes on average
three months from the start of the process of procuring raw materials
until the release of component shipment to the factory, although the
time will vary depending on the source of the materials. This timeframe
includes paperwork, placing binding orders, shipping components from
remote sources, clearing customs (for international components), and
transportation to the facility. After components arrive, production
will take two or three months and once released from production it may
take 5-14 more days to rout the final product from the distribution
center to the retail customer. (LEDVANCE, No. 326 at pp. 2-3)
Other factors, such as retailer-specific contracts and ``safety
stock'', may also affect how retailers stock lamps. For example,
LEDVANCE stated that contract terms with certain retailers will mandate
inventory levels. Such contracts specify that LEDVANCE provide multiple
months of inventory, particularly for new items. In addition, LEDVANCE
stated that it carries 2-3 months of component inventory in ``safety
stock'' in order to meet all customer demands. (LEDVANCE, No. 326 at
pp. 2-3) In total, LEDVANCE asserted that it takes between 5 and 12
months, including transit, for a lamp to move from source through a
major retailer's distribution centers to the store. LEDVANCE stated
that most
[[Page 46672]]
retailers have on average three months of inventory between their story
and distribution centers. (LEDVANCE, No. 326 at p. 2) NEMA asserted
that individual stores will carry sufficient inventory to prevent
having empty shelf space. (NEMA, No. 329 at pp. 43-44) LEDVANCE
submitted confidential data on three years of total industry shipments
of lamp types, showing that a significant number of units are in
transit and/or in a distribution center or on shelf, awaiting order
and/or purchase. (LEDVANCE, No. 326 at p. 3)
Once goods are at the retail site, NEMA estimated that lower to
medium demand products and specialty seasonal demand products (e.g.
colored lights) may sit on a store shelf between 30 and 90 days, while
retailers prefer to maintain at least two weeks of inventory for high
demand products. (NEMA, No. 329 at pp. 43-44) Commenters generally
agreed that timeframes to sale vary by lamp type. ALA commented that
specialty lamps, which are lower-volume products, spend significantly
longer time on store shelves, while LED A lamps move through inventory
systems at faster rates. Approximately 70 percent of sales in the
specialty lamp category are incandescent lamps. (ALA, No. 308 at p. 3)
NEMA agreed that high-volume lamps tend to through retail channels more
quickly than lower-volume specialty lamps, including those at subject
in the 2019 NOPR. NEMA asserted that because these specialty lamps have
a longer shelf-life, they would entail greater exposure to risk from a
sales prohibition order such as that contemplated by the ``backstop.''
(NEMA, No. 329 at p. 42)
Commenters generally agreed on the proportion of space at major
retailers that is devoted to lighting products. LEDVANCE estimated that
lighting and luminaires can occupy between 5% and 10% of a DIY
retailer's floor space (LEDVANCE, No. 326 at p.3) and ALA retailers
estimate about 6%-10% percent of showroom and warehouse space is used
for lamps (ALA, No. 308 at p. 3).
Commenters provided different views on the scope of retailers
affected by uncertainty. NEMA noted that large retail hardware stores
and urban/suburban retail stores tend to move light bulbs through the
distribution channel than specialty retail stores or rural retail
stores. (NEMA, No. 329 at p. 42) LEDVANCE noted that all types of
retailers, and other upstream stakeholders in the supply chain, are
affected by uncertainty regarding the January 2020 date. (LEDVANCE, No.
326 at p. 5) Among the sources of uncertainty LEDVANCE listed that
components could be stranded, packaging must be recycled/scrapped at
cost, contracts with suppliers and customers that cannot be fulfilled
may result in financial penalties, excess inventory must be scrapped,
and that last minute product reset is challenging with possibly lower
pricing requirements. Id. The California Municipal Utilities
Association (CMUA) provided a different perspective and stated that
retailers that have already adjusted their procurement activities to
reflect the 2017 definitions will be harmed. (CMUA, No. 328 at p. 3)
Commenters presented differing views regarding the burden or
benefits associated with open bays. LEDVANCE commented that open bays
present significant problems in that customers are frustrated by a lack
of products and choices and retailers lose sales opportunities as a
result. (LEDVANCE, No. 326 at pp. 3-5) In the February 2019 NOPR public
meeting, NRDC noted that freeing up space on retailers' shelves could
be a benefit instead of a burden as there are other products that could
also provide revenue. (NRDC, Public Meeting Transcript, No. 44 at p.
144) LEDVANCE agreed in part that open bays provide an opportunity for
new product, but noted that filling the open bays takes time, and there
may be added reset costs. (LEDVANCE, No. 326 at pp. 3-5) LEDVANCE
elaborated that identifying and sourcing new products for an open
retail bay can require 6-12 months, including identifying and
qualifying the source, setting up the new vendor, product testing time,
price negotiation, purchase orders, transit from the source, and
initiating new data setup in store registers. (LEDVANCE, No. 326 at pp.
3-5) ALA stated that the typical supply chain for a traditional
lighting retailer is roughly 30 days. (ALA, No. 308 at p. 4) LEDVANCE
added that lamp sales are seasonal and affected by scheduled events,
which requires manufacturers to prepare three months earlier to have
adequate inventory to meet demand. (LEDVANCE, No. 326 at pp. 3-5) From
the perspective of retailers, updating the layout and product offerings
requires planning time, advanced scheduling, and execution time. Big
box retailers schedule line reviews for lamps using fast changing
technologies, such as LED lamps; these line review may take 4-6 months
followed by a shelf reset 8-10 months after the start of the cycle.
Convenience retailers are less likely to schedule line reviews, and may
schedule shelf refreshes in the spring and the fall. Id.
The Colorado Office of Consumer Counsel (COCC) and the Colorado
Energy Office (CEO) noted that uncertainty may be enhanced by DOE's
rulemaking as a result of potential legal challenges. COCC and CEO
stated that multiple organizations have indicated that they might
pursue litigation, which would not be resolved until well into 2020. As
a result, COCC and CEO stipulated that retailers, who will be
responsible for compliance with a potential 45 lm/W backstop, will be
uncertain whether lamps shipped in 2019 will be legal to sell when they
arrive at the stores. (COCC, No. 319 at p. 3; CEO, No. 330 at p. 2)
DOE also received comments on its overall use of data in the
rulemaking. Many commenters were confused as to which aspect of its
rulemaking DOE intended to analyze, and did not distinguish between
Issue 1 and Issue 2 of the February 2019 NOPR. For example, PG&E and
SDG&E commented that DOE's use of data in the rulemaking does not
justify its withdrawal of the exemption discontinuations from the 2017
definition final rules. (PG&E and SDG&E, No. 348 at p. 8) They
commented that the February 2019 NOPR did not explain how submitted
data helped to inform the proposal. They argued DOE claimed that the
data serves to establish retailer burden but does not explain how the
data that is provided is relevant. Nor does DOE address how retailer
burden itself plays any role in DOE's proposal. PG&E and SDG&E also
noted the proposal only focuses on burden of some retailers, while
totally discounting burdens on retailers who are committed to selling
LED lamps and have proactively based their business plans on the
forthcoming standards. These commenters stated that DOE does not
consider burdens on consumers, forward thinking manufacturers and
retailers and utilities. (PG&E and SDG&E, No. 348 at p. 8) Ceres BICEP
Network similarly commented, noting that DOE is putting extraordinary
weight on sales data from NEMA to revisit a definition that is now two
years old, a reversal that will only create more confusion in the
marketplace. (Ceres BICEP Network, No. 313 at p. 3)
Historically, DOE has not conducted analysis of its definitional
rules. In its January 2017 definition final rules, DOE explained that
the analytical requirements to which DOE is subject apply, by their
terms, only when DOE prescribes a new or amended standard. By contrast,
a rule that alters definitions does not establish or materially change
any standard, and the same analytical requirements do not apply. See 82
FR 7278; see also 84 FR 3125. As a result, this rule is not accompanied
by a
[[Page 46673]]
technical support document or other analyses for the definition change.
As DOE noted in the previous section, this rule does not prevent
consumers from buying the lamps they desire, including efficient
options; the same is true for retailers. In response to CMUA, those
retailers who prefer to stock only LEDs are in no way prohibited from
doing so under this final rule. Per PG&E/SDG&E's comments, DOE takes
this opportunity to clarify that retailer burden does not play a role
in DOE's definition changes. Rather, DOE sought to clarify the
applicability of the 2020 backstop, which involved a sales prohibition
that, if it applied, would burden retailers who must transition their
lighting stock. DOE only uses data and supporting analysis in this rule
to illustrate the scope of uncertainty in the market regarding the
applicability of the backstop sales prohibition. DOE agrees with NRDC
that retailers may replace lighting products with higher-revenue
products; however, this does not negate the very real transition costs
to retailers who switch out their stock. In addition, due to the
particulars of the retail supply chain, such a transition is likely to
take a significant amount of time, and some retailers may forego
revenue if they are unable to find a timely product replacement. The
analysis that DOE provides in this final rule addresses those
transition and opportunity costs.
In the February 2019 NOPR, DOE said that the agency would attempt
to quantify the uncertainty created by its prior rulemakings in the
proceeding. In particular, DOE noted that it had created substantial
uncertainty by making apparently conflicting statements about the
applicability of the backstop requirement. DOE anticipates that having
clarified that the backstop does not apply has and will result in
measurable effects on the markets for certain incandescent lamps,
including rough-service, vibration service, 3-way, shatter resistant,
high-lumen, candelabra, halogen, and globe lamps. Further, significant
uncertainty existed in the retail market regarding the scope of lamps
that may be available for sale, which DOE had failed to clarify in
previous statements or rulemakings. As a result of this uncertainty,
retail outlets had not been able to plan adequately for a potential
change in stock, or lack thereof. This uncertainty creates cost for
retailers, and this clarification is expected to reduce those
uncertainty costs.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866 and 13563
This final rule constitutes a ``significant regulatory action''
under section 3(f) of Executive Order 12866, Regulatory Planning and
Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was
subject to review by the Office of Information and Regulatory Affairs
(OIRA) in the Office of Management and Budget (OMB).
B. Review Under Executive Order 13771
This final rule is considered an E.O. 13771 deregulatory action.
Details on the estimated costs of this rule can be found below.
1. Analytical Approach
This rulemaking clarifies that DOE has not yet taken the predicate
actions to trigger the 45 lm/W backstop. DOE must still make a
determination regarding whether to amend standards for GSILs, which
would affect whether the 45 lm/W backstop standard would apply to
general service lamps. Clarifying this applicability removes any
uncertainty that exempted lamps, such as those at subject in this
rulemaking, would be subject to the 45 lm/W backstop requirement.
Clarifying this point will result in measurable effects on the markets
for certain incandescent lamps, including vibration service, 3-way,
shatter resistant, high-lumen, candelabra, halogen, and globe lamps.
The analysis that follows quantifies the cost savings to the retail
market associated with resolving uncertainties as to which lamps may be
sold as of January 1, 2020 as a result of clarifying applicability of
the 2020 backstop. The February 2019 NOPR requested information on the
potential range of cost savings associated with the proposed action.
The information received was used to quantify how many lamps were
affected by uncertainty surrounding the 2020 backstop and the extent to
which retailers would have borne costs associated with changes in
inventory throughout the distribution chain.
As a result of prior confusion regarding whether the 45 lm/W
backstop had been triggered, it is likely that there would be
substantial variation in what retailers understand to be prohibited for
sale after January 1, 2020. In the face of this uncertainty, retailers
would be compelled to continue to order and stock the full suite of
lamp offerings to avoid losing customers to a competitor that offers a
more comprehensive lamp selection, with retailers risking stranded
inventory. However, the retailer's financial risk of keeping the
shelves well-stocked goes beyond the cost of the retailer inventory
stranded on the retailer's shelves and warehouses. The retailer's
financial liability starts from the moment a purchase order is placed
in the supply chain. Under most conditions, once an order is placed the
retailer cannot cancel or modify the order without penalty. (NEMA, No.
329 at p. 43; LEDVANCE, No. 326 at p. 5) Thus, the applicable inventory
losses include all losses associated with product orders cancelled when
a prohibition for which a retailer is not adequately able to anticipate
and plan is effective. This inability to take appropriate action in
advance of the prohibition on sales would create costs associated with
potential stranded work in progress and inventory in manufacturer
warehouses as well as the distribution channel. (NEMA, No. 329 at p.
42; LEDVANCE, No. 326 at p. 5) Contractually, the risks and costs could
be shared between retailer and others in the supply chain, but in all
likelihood, and for sake of simplicity, the analysis assumes that all
inventory costs are entirely passed on to the retailer. The analysis
does not include explicit financial penalties for cancelled orders
because those values are captured in the analysis as opportunity costs
to the retailer in the form of lost sales revenue for all lamps in the
distribution chain.
Quantifying the inventory at risk requires that the analysis
estimates the dollar value of lamps within the supply chain when the
prohibition would be effective, in particular the dollar value of those
lamps subject to the prohibition. From comments received, DOE estimates
that lamp inventory turns over approximately 2 to 9 times per year,
placing at risk as few as 6 weeks or as many as 6 months of lamp sales.
(NEMA, No. 329 at p. 44; ALA, No. 308 at p. 3; LEDVANCE, No. 326 at p.
2) If the shelf space stays empty, the financial loss equals the entire
lost revenue at the retail level. In theory, if the shelf space is
gradually filled with other products the financial loss is reduced. But
the loss is reduced by only a fraction of the replacement retail
revenue since contrary to the stranded lamps inventory which has
already been paid to suppliers, the replacement products to fill the
vacated shelf space has not been paid. In previous rulemakings for GSLs
DOE estimated that product costs represented approximately 66 percent
of the retail price of GSLs (accounting for
[[Page 46674]]
replacement product costs). Furthermore, in practice, identifying,
qualifying, and sourcing new products is a process requiring many
months (LEDVANCE, No. 326 at pp. 3-4).
2. Cost Estimate
NEMA's confidential estimates of total domestic shipments for the
years 2015 to 2018 were used to forecast future shipments. An
exponential forecast was determined to be the best fit to the data
provided. The analysis uses manufacturer shipments as a surrogate for
unit sales because it is presumed that retailer inventories remain
fairly constant from year to year such that annual shipments track
closely with actual unit sales. Shipments were assumed to be equally
spread among months of the year. Based on comments from industry, as
few as 6 weeks or as many as 6 months of incandescent lamp sales may be
at risk. Thus, a low-end and high-end estimate were calculated based on
the two different time frames.
3. Results
DOE estimates that if retailers had on their shelves incandescent
lamps and were prohibited from selling them, the lost revenue in 2020
would range from $64.3 million to $257 million (in 2016$). Sales of
subject incandescent lamps over the analyzed time period (approximated
by shipments) range from 37.8 million to 151 million lamps with an
average lamp price of $1.70 (in 2016$).
Table 1--Summary of Cost Impacts
------------------------------------------------------------------------
Present value Discount rate
Category (thousands 2016$) (percent)
------------------------------------------------------------------------
Cost Savings
Reduction in Uncertainty... $57,098-$228,393 3
$49,027-$196,108 7
Total Net Cost Impact
----------------------------------------
Total Net Cost Impact...... ($57,098)-($228,393) 3
($49,027)-($196,108) 7
------------------------------------------------------------------------
Table 2--Summary of Annualized Cost Impacts
------------------------------------------------------------------------
Annualized value Discount rate
Category (thousands 2016$) (percent)
------------------------------------------------------------------------
Annualized Cost Savings
Reduction in Uncertainty... $1,713-$6,852 3
$3,432-$13,728 7
Total Net Annualized Cost
Impact
----------------------------------------
Total Net Cost Impact...... ($1,713)-($6,852) 3
($3,432)-($13,728) 7
------------------------------------------------------------------------
The final rule yields annualized cost savings of between
approximately $3.4 million and $13.7 million using a perpetual time
horizon discounted to 2016 at a 7 percent discount rate.
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, and a final
regulatory flexibility analysis (FRFA) for any such rule that an agency
adopts as a final rule, unless the agency certifies that the rule, if
promulgated, will not have a significant economic impact on a
substantial number of small entities. As required by Executive Order
13272, ``Proper Consideration of Small Entities in Agency Rulemaking,''
67 FR 53461 (August 16, 2002), DOE published procedures and policies on
February 19, 2003, to ensure that the potential impacts of its rules on
small entities are properly considered during the rulemaking process.
68 FR 7990. DOE has made its procedures and policies available on the
Office of the General Counsel's website (https://energy.gov/gc/office-general-counsel).
DOE reviewed the withdrawal of the revised definitions for GSL,
GSIL and related terms under the provisions of the Regulatory
Flexibility Act and the procedures and policies published on February
19, 2003. DOE certifies that this final rule does not have a
significant economic impact on a substantial number of small entities.
The factual basis for this certification is set forth in the following
paragraphs.
For manufacturers of GSLs, the SBA has set a size threshold, which
defines those entities classified as ``small businesses'' for the
purposes of the statute. DOE used the SBA's small business size
standards to determine whether any small entities would be subject to
the requirements of the rule See 13 CFR part 121. The size standards
are listed by NAICS code and industry description and are available at
https://www.sba.gov/document/support-table-size-standards.
Manufacturing of GSLs is classified under NAICS 335110, ``Electric Lamp
Bulb and Part Manufacturing.'' The SBA sets a threshold of 1,250
employees or less for an entity to be considered as a small business
for this category.
---------------------------------------------------------------------------
\13\ National Electric Manufacturers Association [bond] Member
Products [bond] Lighting Systems [bond] Related Manufacturers,
https://www.nema.org/Products/Pages/Lighting-Systems.aspx (last
accessed September 26, 2018).
\14\ DOE's Compliance Certification Database [bond] Lamps--Bare
or Covered (No Reflector) Medium Base Compact Fluorescent, https://www.regulations.doe.gov/certification-data (last accessed September
26, 2018).
---------------------------------------------------------------------------
To estimate the number of companies that could be small businesses
that manufacture GSLs covered by this rulemaking, DOE conducted a
market survey using publicly available information. DOE's research
involved information provided by trade associations (e.g., NEMA \13\)
and information from DOE's Compliance Certification Database,\14\ EPA's
ENERGY
[[Page 46675]]
STAR Certified Light Bulbs Database,\15\ previous rulemakings,
individual company websites, SBA's database, and market research tools
(e.g., D&B Hoover's reports \16\). DOE used information from these
sources to create a list of companies that potentially manufacture or
sell GSLs and would be impacted by this rulemaking. DOE screened out
companies that do not offer products covered by this rulemaking, do not
meet the definition of a ``small business,'' or are completely foreign
owned and operated. DOE determined that eight companies are small
businesses that maintain domestic production facilities for general
service lamps.
---------------------------------------------------------------------------
\15\ ENERGY STAR Qualified Lamps Product List, https://downloads.energystar.gov/bi/qplist/Lamps_Qualified_Product_List.xls?dee3-e997 (last accessed September
26, 2018).
\16\ Hoovers [bond] Company Information [bond] Industry
Information [bond] Lists, https://www.hoovers.com (last accessed June
27, 2019).
---------------------------------------------------------------------------
DOE notes that this final rule withdraws the revised definitions of
GSIL and GSL that are effective in 2020 in order to maintain the
existing regulatory definitions of these terms, which is the same as
the statutory definitions of these terms, including exclusions of
certain lamp types. As a result, certain lamps will continue to be
exempt from complying with current Federal test procedures and any
applicable Federal energy conservation standards. For this reason, DOE
concludes and certifies that the withdrawal of the definitions does not
have a significant economic impact on a substantial number of small
entities, and the preparation of a FRFA is not warranted.
D. Review Under the Paperwork Reduction Act of 1995
Manufacturers of GSLs must certify to DOE that their products
comply with any applicable energy conservation standards. In certifying
compliance, manufacturers must test their products according to the DOE
test procedures for GSLs, including any amendments adopted for those
test procedures. DOE has established regulations for the certification
and recordkeeping requirements for all covered consumer products and
commercial equipment. See generally 10 CFR part 429. The collection-of-
information requirement for the certification and recordkeeping is
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). This requirement has been approved by OMB under OMB control
number 1910-1400. Public reporting burden for the certification is
estimated to average 30 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
E. Review Under the National Environmental Policy Act of 1969
Pursuant to the National Environmental Policy Act (NEPA) of 1969,
DOE has analyzed this proposed action in accordance with NEPA and DOE's
NEPA implementing regulations (10 CFR part 1021). DOE has determined
that this rule qualifies for categorical exclusion under 10 CFR part
1021, subpart D, appendix A5 because it is a rulemaking that amends an
existing rule that does not change the environmental effect of the rule
and meets the requirements for application of a CX. See 10 CFR
1021.410. Therefore, DOE has determined that promulgation of this rule
is not a major Federal action significantly affecting the quality of
the human environment within the meaning of NEPA, and does not require
an EA or EIS.
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 has examined this
final rule and has determined that it does 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 products 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)
Therefore, 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; (3)
provide a clear legal standard for affected conduct rather than a
general standard; and (4) promote simplification and burden reduction.
61 FR 4729 (Feb. 7, 1996). Regarding the review required by section
3(a), 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 final 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 likely to result 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
[[Page 46676]]
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 them. On March 18, 1997, DOE published a statement of policy on
its process for intergovernmental consultation under UMRA. 62 FR 12820.
DOE's policy statement is 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 (Public Law 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any rule that may affect family
well-being. This final rule does 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
Pursuant to Executive Order 12630, ``Governmental Actions and
Interference with Constitutionally Protected Property Rights,'' 53 FR
8859 (March 15, 1988), DOE has determined that this final rule does 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 information
quality guidelines established by each agency pursuant to general
guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452
(Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446
(Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
L. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OMB,
a Statement of Energy Effects for any proposed significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgates or is expected to lead to promulgation of a
final rule, and that: (1) Is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy, or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use.
This regulatory action to withdraw the revised definitions of GSL,
GSIL and supplemental definitions is not a significant regulatory
action under Executive Order 12866. Moreover, it would not have a
significant adverse effect on the supply, distribution, or use of
energy, 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 submit to Congress a report
regarding the issuance of this final rule prior to the effective date
set forth at the outset of this rulemaking. The report will state that
it has been determined that the rule is not a ``major rule'' as defined
by 5 U.S.C. 801(2).
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this final
rule.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Household appliances, Imports,
Incorporation by reference, Intergovernmental relations, Small
businesses.
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
Signed in Washington, DC, on: August 28, 2019.
Daniel R Simmons,
Assistant Secretary, Energy Efficiency and Renewable Energy.
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
0
Accordingly, the final rules published in the Federal Register on
January 19, 2017 (82 FR 7276 and 82 FR 7322), amending 10 CFR 430.2,
which were to become effective on January 1, 2020, are withdrawn
effective October 7, 2019.
[FR Doc. 2019-18940 Filed 9-4-19; 8:45 am]
BILLING CODE 6450-01-P