Energy Conservation Program: Clarifying Amendments to the Error Correction Rule, 64071-64078 [2020-21985]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 85, Number 197 (Friday, October 9, 2020)]
[Proposed Rules]
[Pages 64071-64078]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21985]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 85, No. 197 / Friday, October 9, 2020 / 
Proposed Rules

[[Page 64071]]



DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2020-BT-STD-0015]
RIN 1904-AE87


Energy Conservation Program: Clarifying Amendments to the Error 
Correction Rule

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

ACTION: Notice of proposed rulemaking and request for comment.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (``DOE'' or ``the Department'') 
proposes amending its procedures for providing public input on possible 
corrections to pre-publication drafts of energy conservation standard 
documents, as informed by a decision by the United States Court of 
Appeals for the Ninth Circuit regarding the implementation and scope of 
the existing procedures. This proposal seeks to modify certain aspects 
of these procedures and to clarify and reflect the Department's intent 
with regard to the procedures. In particular, the proposal would 
clarify that although DOE has elected to utilize a distinct error 
correction process to receive public input on certain pre-publication 
draft documents, this process does not in any way restrict, limit, 
diminish, or eliminate the Secretary's discretion to determine whether 
to establish or amend an energy conservation standard, or to determine 
the appropriate level at which to amend or establish any energy 
conservation standard.

DATES: DOE will accept comments, data, and information regarding this 
proposal no later than November 9, 2020. See section IV, ``Public 
Participation,'' for details.

ADDRESSES: Interested persons are encouraged to submit comments using 
the Federal eRulemaking Portal at https://www.regulations.gov. Follow 
the instructions for submitting comments. Alternatively, interested 
persons may submit comments, identified by docket number EERE-2020-BT-
STD-0015, by any of the following methods:
    (1) Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) Email: [email protected]. Include the 
docket number EERE-2020-BT-STD-0015 or regulatory information number 
(RIN) 1904-AE87 in the subject line of the message.
    (3) Postal Mail: Appliance and Equipment Standards Program, U.S. 
Department of Energy, Building Technologies Office, Mailstop EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: 
(202) 287-1445. If possible, please submit all items on a compact disc 
(``CD''), in which case it is not necessary to include printed copies.
    (4) Hand Delivery/Courier: Appliance and Equipment Standards 
Program, U.S. Department of Energy, Building Technologies Office, 950 
L'Enfant Plaza SW, Suite 600, Washington, DC 20024. Telephone: (202) 
287-1445. If possible, please submit all items on a CD, in which case 
it is not necessary to include printed copies.
    No telefacsimiles (faxes) will be accepted. For detailed 
instructions on submitting comments and additional information on the 
rulemaking process, see section IV of this document.
    Docket: The docket, which includes Federal Register notices, public 
meeting attendee lists and transcripts (if a public meeting is held), 
comments, and other supporting documents/materials, 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, such as those containing information that is 
exempt from public disclosure, may not be publicly available.
    The docket web page can be found at https://www.regulations.gov/docket?D=EERE-2020-BT-STD-0015. The docket web page will contain simple 
instructions on how to access all documents, including public comments, 
in the docket. See section V for information on how to submit comments 
through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. John Cymbalsky, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-5B, 1000 Independence Avenue SW, Washington, 
DC 20585-0121. Telephone: (202) 287-1692 or [email protected].
    For further information on how to submit a comment or to review 
other public comments and the docket, contact the Appliance and 
Equipment Standards Program staff at (202) 287-1445 or by email: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Authority & Background
    A. Legal Authority
    B. Background
II. Summary of Rule Amendments
    A. Breakdown of Proposed Amendments
III. Procedural Issues and Regulatory Review
IV. Public Participation
V. Approval of the Office of the Secretary

I. Authority & Background

A. Legal Authority

    Title III of the Energy Policy and Conservation Act, as amended 
(``EPCA'' or in context, ``the Act''), establishes a program within DOE 
designed to improve the energy efficiency of consumer products (other 
than automobiles) and of certain industrial equipment. Under this 
authority and subject to the requirements of EPCA and the 
Administrative Procedure Act (``APA''), DOE may establish and/or amend 
energy conservation standards for a variety of covered consumer 
products and industrial equipment.
    To achieve a primary purpose of EPCA, that of improving the energy 
efficiency of a variety of consumer products and industrial equipment, 
the Department undertakes certain rulemakings to establish or revise 
energy conservation standards and to consider amending such standards 
on a periodic basis. 42 U.S.C. 6295(m)(1). The Act requires DOE to 
conduct such rulemakings or periodic reviews and provides that DOE may 
not establish a new or amend an existing standard if the Department 
determines that such a standard will not be technologically feasible or 
economically justified, or that the standard will not result in 
significant conservation of energy or water. See 42 U.S.C. 
6295(o)(2)(A), (3). The Act additionally prevents DOE from 
``prescrib[ing] any amended standard which increases the maximum

[[Page 64072]]

allowable energy use [or, for certain products, water use] . . . or 
decreases the minimum required energy efficiency'' of a covered product 
(referred to as the ``anti-backsliding'' provision). 42 U.S.C. 
6295(o)(1).
    When considering whether to establish or to amend existing energy 
conservation standards, DOE conducts extensive technological analyses 
and uses considerable amounts of data. Given the complexity of this 
review process, DOE recognizes the reality that a potential standards 
regulation may go through the entire rulemaking process and may still 
contain an error of fact that would result in the Department's 
prescribing a standard in regulation that is inconsistent with the 
analysis conducted by the Department and conflicts with the Secretary's 
intent for the rulemaking. If such an error remains uncorrected and the 
standard takes legal effect, it is at least arguable that EPCA's anti-
backsliding provision could prevent the Department from correcting the 
error.
    The Department initially adopted the error correction rule in 2016 
with these considerations in mind, and now seeks to clarify that the 
procedure is designed to prevent avoidable erroneous outcomes while 
maintaining in full the Secretary's authority and discretion to conduct 
energy conservation standard rulemakings. The proposed amendments set 
forth in this rulemaking are designed to ensure that the error 
correction review process does not supplant or limit in any way the 
Secretary's authority to determine how any rulemaking should proceed or 
the ultimate outcome of a rulemaking proceeding.

B. Background

    DOE is proposing to amend its procedures for addressing errors in 
pre-publication draft documents that would, if finalized, set new or 
amended energy conservation standards for the various products and 
equipment that DOE regulates. See 10 CFR 430.5. DOE is taking this 
action as informed by a 2019 decision from the United States Court of 
Appeals for the Ninth Circuit that held that DOE's existing error 
correction rule (``ECR''), as written, imposes a non-discretionary duty 
upon the Secretary to publish rules within 30 days of completing the 
error correction process. See Natural Resources Defense Council v. 
Perry, 940 F.3d 1072 (9th Cir. 2019). The court of appeals held that 10 
CFR 430.5(f) created a non-discretionary duty to submit draft rules 
(i.e. a pre-publication draft) for publication in the Federal Register 
within 30 days of the close of the error correction submission period. 
940 F.3d at 1079-1080. In response, this proposed rule would amend 10 
CFR 430.5 to provide clearly that the rule creates no non-discretionary 
duty to publish a pre-publication draft that has been posted in 
accordance with the error correction process. DOE has determined that 
it is necessary to revise the ECR so that the rule may more accurately 
meet the very limited purpose originally intended--the Department's 
need to prevent energy conservation standards from containing errors or 
mistakes--while also clarifying that the error correction process does 
not limit the Secretary's rulemaking discretion in any way.
    To address this issue, DOE's proposal would clarify that the error 
correction process provides the public with an additional opportunity 
to review documents for errors, but without limiting the Secretary's 
rulemaking authority. Through this rulemaking, DOE has sought to 
restructure how the ECR process can identify errors in documents, that 
if finalized, might be difficult to remedy due to EPCA's anti-
backsliding provision (42 U.S.C. 6295(o)(1)), while maintaining the 
Secretary's discretion to determine whether to establish or amend an 
energy conservation standard. These proposed revisions to the ECR will 
not impair DOE's ability to meet its statutorily prescribed deadlines 
for either establishing or amending energy conservation standards for 
covered products and equipment. DOE also emphasizes that these proposed 
revisions to the error correction rule focus solely on DOE's intent to 
allow the public to identify possible technical and objective errors in 
certain pre-publication draft documents and that these proposed 
revisions would not limit DOE's discretion in determining how to 
address the receipt of any new information received that falls outside 
of the error correction context that DOE is seeking to address. Any new 
information, regardless of how DOE receives it (i.e. whether submitted 
from an outside party or discovered by DOE on its own) that would 
affect the policy-making aspects of a given standards rulemaking will 
be considered within the context of that rulemaking. DOE will evaluate 
that information as appropriate and determine how best to proceed.

II. Summary of Rule Amendments

    The following proposed revisions to the ECR would clarify the 
rule's original limited purpose by maintaining the Secretary's 
discretion in establishing or amending energy conservation standards, 
eliminating any possible interpretation that the rule introduces a 
mandatory obligation or timeline for the Secretary to publish an energy 
conservation standard at the completion of the error correction review 
process, and ensuring the availability of a mechanism to further the 
specific and limited purpose of avoiding promulgating energy 
conservation standards that contain errors.

Breakdown of Proposed Amendments

Sec.  430.5(a): Purpose and Scope

    This proposal renames this section (currently named ``Scope and 
purpose'') as ``Purpose and Scope'' and separates it into two 
subsections that address the purpose, (a)(1), and the scope, (a)(2), of 
the regulations in this section.
    The general purpose of subsection (1) is to describe the procedures 
through which the Department may accept and consider public input for 
the review of a pre-publication draft document's regulatory text. As 
envisioned in this proposed rule, neither the governing statutes nor 
the regulations described here place an affirmative obligation on the 
Secretary to provide an opportunity to seek error correction requests 
on any document or to act or respond in light of any submissions 
properly submitted by the public. The error correction process 
described herein is strictly a voluntary activity on the part of DOE. 
Under the proposed rule, the Department would be under no legal 
obligation to offer the public an additional review period for energy 
conservation standards beyond that which is already provided under EPCA 
or other applicable provisions of the APA. The Department intends this 
opportunity to facilitate greater public involvement in the rulemaking 
process and to ensure accuracy of its documents.
    Subsection (2) describes the scope of the procedure that would be 
available under this section. The error correction rule would be 
limited to pre-publication draft documents that could, if finalized, 
establish or amend energy conservation standards for which the 
Secretary determines that additional public review for errors is 
warranted. Under the approach set forth in this proposed rule, it would 
remain solely within the Secretary's discretion to subject an energy 
conservation standard pre-publication draft document to the error 
correction process; under this approach, not all documents potentially 
within the scope of the error correction rule must be selected by the 
Secretary for this review.
    DOE proposes to maintain the limitation on the scope of its 
existing error correction rule that excludes from

[[Page 64073]]

the error correction review process those documents pertaining to test 
procedures, requirements for labeling or certification, and procedures 
for enforcement. While DOE recognizes the importance of correcting 
errors in all of its documents, the error-correction process is 
unnecessary in these other cases because any errors in such cases would 
clearly not be subject to the anti-backsliding provision and can be 
addressed in subsequent rulemaking proceedings. The Department 
maintains its intention to be responsive to input from the public that 
identifies errors through traditional notice and comment practices for 
these excluded documents. Here, the Department is sensitive to the 
particular complexities of energy conservation standards and the 
potential impacts of the Act's anti-backsliding provision. Accordingly, 
DOE proposes to continue to limit application of the error correction 
rule to those pre-publication drafts that could establish or amend 
energy conservation standards for the various products and equipment 
that DOE has the authority to regulate under EPCA.
    Under this proposed rule, DOE would also continue to exclude energy 
conservation standards set through the issuance of a direct final rule 
pursuant to section 325(p)(4) of EPCA. (42 U.S.C. 6295(p)(4)) As noted 
in the original rule establishing the error correction process, as a 
practical matter, the mechanisms of the direct final rule process 
provide an opportunity for correcting errors that is at least as 
effective as what the error correction rule achieves. If a direct final 
rule contains an error, the public has an opportunity to identify that 
error through the comment process provided by statute, and any error 
that a person would have identified during the error correction process 
could also be identified in the 110-day comment period required by EPCA 
for a direct final rule. See 42 U.S.C. 6295(p)(4)(B).

Sec.  430.5(b): Definitions

    This paragraph would continue to set forth several definitions that 
clarify the meaning of this section and the application of the error 
correction process. Below, DOE describes changes to the existing 
definitions in the error correction rule.
    The term ``Error'' for the purposes of this section would be 
redefined to include the revised definition of Pre-publication draft. 
This update would clarify the type of document that the public will 
encounter online in those instances in which a document is subject to 
the error correction review process. The phrase ``regulatory text'' 
would continue to mean the material that is to be placed in the Code of 
Federal Regulations (``CFR''), together with the amendatory 
instructions by which the rule communicates what should go in the CFR 
81 FR 26998, 27000.
    The Department is proposing to replace the term ``Rule'' with the 
term ``Pre-publication draft'' to better describe the type of document 
that the public will review during the error correction process. This 
publicly available document will contain the regulatory text and, where 
appropriate, an accompanying preamble to a draft rule.

Sec.  430.5(c): Posting of Pre-Publication Drafts

    The Department is proposing to revise the title of this section to 
pair with revised definitions included in section 430.5(b). This 
section would continue to describe the beginning of the error 
correction process.

Sec.  430.5(c)(1): Decision To Post Pre-Publication Drafts Is 
Discretionary

    In subsection (1), the Department is proposing to revise the 
current regulatory text to clarify that the Secretary's decision to 
post pre-publication drafts online is discretionary and voluntary, not 
the result of a mandatory duty. If the Secretary chooses to post the 
draft for error correction review, the draft would be available for a 
maximum of 45 days.

Sec.  430.5(c)(2): Pre-Publication Draft Availability

    Subsection (2) would be revised to remove any suggestion of an 
implied timeline for the Secretary's decision to publish a potential 
rule that has undergone error correction review. This proposed change 
would further clarify that the error correction rule does not impose a 
deadline by which the Secretary must submit the document for 
publication. Subsection (2) would be clarified to emphasize that the 
public's review of pre-publication draft documents is available at the 
sole discretion of the Secretary. The error correction rule does not 
establish an obligation for the Secretary to post pre-publication draft 
documents online for every rulemaking that could, if finalized, amend 
or establish an energy conservation standard. The Secretary is free to 
determine which energy conservation standard rulemakings are 
appropriate subjects for this process. Finally, the Secretary would 
retain the discretion to determine the degree to which these documents 
may be amended, if at all, after the review process is complete.

Sec.  430.5(c)(3): Pre-Publication Draft Disclaimer

    Subsection (3) would be updated to replace ``rule'' with the new 
term ``pre-publication draft,'' consistent with changes throughout the 
rule. The Department is proposing to revise the disclaimer notice that 
will continue to be posted along with any pre-publication draft 
document that is made available for public review. The proposed text 
would explain that, through engaging in the error correction process, 
the Department may conduct additional review of the regulatory text 
prior to finalizing a potential energy conservation standard to ensure 
that the text is consistent with the Secretary's intent and with data 
and analysis available at the time of posting. It would remain within 
the Secretary's discretion to determine the appropriate remedy for any 
error that may be identified during this process.

Sec.  430.5(d): Request for Error-Correction Review

    This section explains how the public would be able to submit a 
request to the Department, seeking consideration of a potential error 
identified in the regulatory text of the pre-publication draft 
document. This section also identifies what evidence would be accepted 
in support of the request. The title of the section and references to 
the current term ``rule'' used throughout this section would be revised 
to reflect the updated definitions.
    Subsection (1) would be updated to include the revised definition 
of Pre-publication draft. As in the original rule, the public would be 
able to submit a request for the Secretary to review and correct an 
error properly identified. The Secretary would not be obligated to take 
an action, and would have the discretion to choose whether to correct 
an error properly identified and determined to be consequential. If the 
error were deemed to be inconsequential, the Secretary would be under 
no obligation to review and correct the regulatory text.
    Subsection (2) would continue to set out the requirements for a 
properly submitted request. Under these proposed requirements, a 
request must identify an error, as defined within this section, with 
particularity by stating what text is erroneous and providing a 
corrected substitute if possible. If no substitute can be articulated, 
the request must include an explanation as to why the requester cannot 
do so.
    The Department emphasizes that the review conducted by the public 
would be limited to identifying errors existing

[[Page 64074]]

in the regulatory text of the pre-publication draft document. 
Disagreements on discretionary questions of policy reflected in a pre-
publication draft document would be outside of the scope of the error 
correction process. The proposed rule seeks to clarify that all policy 
decisions reflected in the pre-publication draft document would be 
within the sole discretion of the Secretary both before and after the 
posting of a pre-publication draft document for error correction 
review.
    As proposed, subsection (3) would make clear that evidence in the 
record can relate to the accompanying preamble of the pre-publication 
draft, but that the error itself must originate from the regulatory 
text. DOE would not consider a request that does not conform to the 
requirements of this section.

Sec.  430.5(e): Correction of Pre-Publication Draft Documents

    This section would continue to describe the course of action that 
the Department may take in the event that a request for correction has 
appropriately identified an error. Under the proposed rule, the error 
correction rule would impose no requirement for publication and would 
not establish any obligation on the Secretary to publish a pre-
publication draft document as a final rule upon the completion of the 
error correction process.
    The new text introduced here would clarify the Secretary's 
authority to determine the appropriate remedy for an error identified 
and would ensure that the Secretary retains the discretion to initiate 
additional review of the regulatory text so that the text mirrors the 
Secretary's intent, based on the Secretary's exercise of discretion.

Sec.  430.5(f): Available Outcomes and Publication

    To avoid confusion regarding whether and when the Department may 
publish a pre-publication draft document as a final rule, this section 
would be revised to prevent the inference that publication in the 
Federal Register is the only outcome available at the conclusion of the 
error correction process. Under this proposed rule, application of the 
error correction rule would be a voluntary activity by the Department, 
and the Secretary would not be obligated to consider or respond to any 
request for correction submitted. At the conclusion of the review 
period, the Secretary would be under no obligation to submit any 
document for publication.

Sec.  430.5(g): Alteration of Standards

    This section of the regulations is proposed for removal. The 
current version of this provision states that until such time as a 
standard has been published in the Federal Register, DOE may correct 
that standard consistent with the APA. DOE is proposing to remove this 
provision as unnecessary in light of the clarifications being proposed 
for the remaining sections of 10 CFR 430.5.

Sec.  430.5(g): Relationship Between Pre-Publication Draft Documents 
and Prescribed Rules; Finality of Agency's Decision

    This section would be renumbered from (h) to (g). The section would 
include new text to reaffirm that pre-publication draft documents are 
not final rules or prescribed rules within the meaning of the Act. The 
Department's posting of these drafts online for error correction review 
would not finalize the substance of a document under error correction 
review or end the rulemaking process for that document, including the 
Department's consideration of any policy decisions pertaining to the 
rulemaking. The section thus seeks to provide clarity regarding the 
finality of the agency's decisions.

III. Procedural Issues and Regulatory Review

A. Administrative Procedure Act

    Agency rules of procedure and practice, such as the one described 
in this document, are not subject to the requirement to provide prior 
notice and an opportunity for public comment pursuant to authority at 5 
U.S.C. 553(b)(A). DOE notes that a rule of this nature is also not a 
substantive rule subject to a 30-day delay in effective date pursuant 
to 5 U.S.C. 553(d). Nonetheless, DOE is voluntarily offering an 
opportunity for the public to make comments on the changes set forth in 
this proposed rule.

B. Review Under Executive Orders 12866

    This proposed regulatory action is a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866. Accordingly, this 
action was subject to review under that Executive Order by the Office 
of Information and Regulatory Affairs (OIRA) of the Office of 
Management and Budget (OMB).

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires 
preparation of an initial regulatory flexibility analysis (IRFA) for 
any rule that by law must be proposed for public comment, unless the 
agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities. 
Because this proposed rule is not subject to the requirement to provide 
prior notice and an opportunity for public comment, it is not subject 
to the analytical requirements of the Regulatory Flexibility Act.

D. Review Under the Paperwork Reduction Act

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

E. Review Under the National Environmental Policy Act of 1969

    DOE has determined that this proposed rule falls into a class of 
actions that are categorically excluded from review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's 
implementing regulations at 10 CFR part 1021. Specifically, this rule 
is strictly procedural and is covered by the Categorical Exclusion in 
10 CFR part 1021, subpart D, paragraph A6. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999), 
imposes certain requirements on Federal agencies formulating and 
implementing policies or regulations that preempt State law or that 
have Federalism implications. The Executive Order requires agencies to 
examine the constitutional and statutory authority supporting any 
action that would limit the policymaking discretion of the States and 
to carefully assess the necessity for such actions. The Executive Order 
also requires agencies to have an accountable process to ensure 
meaningful and timely input by 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 that it will follow in the 
development of such regulations. 65 FR 13735. DOE has examined this 
proposed rule and has determined that it will not have a substantial 
direct effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. EPCA governs 
and

[[Page 64075]]

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

G. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' imposes on Federal agencies the general duty 
to adhere to the following requirements: (1) Eliminate drafting errors 
and ambiguity; (2) write regulations to minimize litigation; and (3) 
provide a clear legal standard for affected conduct rather than a 
general standard and promote simplification and burden reduction. 61 FR 
4729 (Feb. 7, 1996). Section 3(b) of Executive Order 12988 specifically 
requires that Executive agencies make every reasonable effort to ensure 
that the regulation: (1) Clearly specifies the preemptive effect, if 
any; (2) clearly specifies any effect on existing Federal law or 
regulation; (3) provides a clear legal standard for affected conduct 
while promoting simplification and burden reduction; (4) specifies the 
retroactive effect, if any; (5) adequately defines key terms; and (6) 
addresses other important issues affecting clarity and general 
draftsmanship under any guidelines issued by the Attorney General. 
Section 3(c) of Executive Order 12988 requires Executive agencies to 
review regulations in light of applicable standards in section 3(a) and 
section 3(b) to determine whether they are met or it is unreasonable to 
meet one or more of them. DOE has completed the required review and 
determined that, to the extent permitted by law, this proposed rule 
meets the relevant standards of Executive Order 12988.

H. Review Under the Unfunded Mandates Reform Act of 1995

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

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

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

J. Review Under Executive Order 12630

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

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

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

L. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
at OMB, a Statement of Energy Effects for any significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any significant energy action, the 
agency must give a detailed statement of any adverse effects on energy 
supply, distribution, or use if the regulation is implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    This proposed rule is not a significant energy action because the 
ability to correct regulations will not, in itself, have a significant 
adverse effect on the supply, distribution, or use of energy. Moreover, 
it would not have a significant adverse effect on the supply, 
distribution, or use of energy, nor has it been designated as a 
significant energy action by the Administrator of OIRA. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

IV. Public Participation

Submission of Comments

    DOE will accept comments, data and information regarding this 
proposed rule no later than the date provided in the DATES section at 
the beginning of this proposed rule. Interested parties may submit 
comments using any of the methods described in the ADDRESSES section at 
the beginning of this NOPR.
    Submitting comments via https://www.regulations.gov. The https://www.regulations.gov web page will require you to provide your name and 
contact information. Your contact information will be viewable to DOE 
Building Technologies staff only. Your contact information will not be 
publicly viewable except for your first and last names, organization 
name (if any), and

[[Page 64076]]

submitter representative name (if any). If your comment is not 
processed properly because of technical difficulties, DOE will use this 
information to contact you. If DOE cannot read your comment due to 
technical difficulties and cannot contact you for clarification, DOE 
may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment or in any documents attached to your comment. 
Any information that you do not want to be publicly viewable should not 
be included in your comment, nor in any document attached to your 
comment. Persons viewing comments will see only first and last names, 
organization names, correspondence containing comments, and any 
documents submitted with the comments.
    Do not submit to https://www.regulations.gov information for which 
disclosure is restricted by statute, such as trade secrets and 
commercial or financial information (hereinafter referred to as 
Confidential Business Information (``CBI'')). Comments submitted 
through https://www.regulations.gov cannot be claimed as CBI. Comments 
received through the website will waive any CBI claims for the 
information submitted. For information on submitting CBI, see the 
Confidential Business Information section.
    DOE processes submissions made through https://www.regulations.gov 
before posting. Normally, comments will be posted within a few days of 
being submitted. However, if large volumes of comments are being 
processed simultaneously, your comment may not be viewable for up to 
several weeks. Please keep the comment tracking number that https://www.regulations.gov provides after you have successfully uploaded your 
comment.
    Submitting comments via email, hand delivery, or postal mail. 
Comments and documents submitted via email, hand delivery, or postal 
mail also will be posted to https://www.regulations.gov. If you do not 
want your personal contact information to be publicly viewable, do not 
include it in your comment or any accompanying documents. Instead, 
provide your contact information on a cover letter. Include your first 
and last names, email address, telephone number, and optional mailing 
address. The cover letter will not be publicly viewable as long as it 
does not include any comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE. If you submit via mail or hand 
delivery, please provide all items on a CD, if feasible. It is not 
necessary to submit printed copies. No facsimiles (faxes) will be 
accepted.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are not secured, written in English and free of any defects or viruses. 
Documents should not contain special characters or any form of 
encryption and, if possible, they should carry the electronic signature 
of the author.

Campaign Form Letters

    Please submit campaign form letters by the originating organization 
in batches of between 50 to 500 form letters per PDF or as one form 
letter with a list of supporters' names compiled into one or more PDFs. 
This reduces comment processing and posting time.

Confidential Business Information

    According to 10 CFR 1004.11, any person submitting information that 
he or she believes to be confidential and exempt by law from public 
disclosure should submit via email, postal mail, or hand delivery two 
well-marked copies: One copy of the document marked confidential 
including all the information believed to be confidential, and one copy 
of the document marked non-confidential with the information believed 
to be confidential deleted. Submit these documents via email or on a 
CD, if feasible. DOE will make its own determination about the 
confidential status of the information and treat it according to its 
determination.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed 
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.

Signing Authority

    This document of the Department of Energy was signed on September 
29, 2020, by Alexander N. Fitzsimmons, Deputy Assistant Secretary for 
Energy Efficiency, Energy Efficiency and Renewable Energy, pursuant to 
delegated authority from the Secretary of Energy. That document with 
the original signature and date is maintained by DOE. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DOE Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of the Department of Energy. This administrative process in no way 
alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on September 30, 2020
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE is proposing to amend 
part 430 of Chapter II of Title 10, Code of Federal Regulations as set 
forth below:

PART 430--ENERGY CONSERVATION STANDARDS FOR CONSUMER PRODUCTS

0
1. The authority citation for part 430 continues to read as follows:

    Authority:  42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

0
2. Section 430.5 is revised to read as follows:


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

    (a) Purpose and scope.
    (1) The regulations in this section describe the procedures through 
which the Department of Energy may receive voluntary submissions from 
the public regarding the identification of possible Errors (as defined 
in this section) found in the regulatory text of a pre-publication 
draft of a document that may result in the establishment or amendment 
of an energy conservation standard issued under the Energy Policy and 
Conservation Act, as amended (42 U.S.C. 6291-6317). The Secretary may 
take the submissions received under advisement, but is not required to 
take any action in response to the receipt of a submission.
    (2) This section applies only to pre-publication draft documents 
that may result in establishing or amending energy conservation 
standards under the

[[Page 64077]]

Act, as identified by the Secretary. This section does not apply to 
direct final rules issued pursuant to section 325(p)(4) of the Act (42 
U.S.C. 6295(p)(4)). Nothing in the procedure set forth in this section 
in any way restricts, limits, diminishes, or eliminates the Secretary's 
discretion to determine whether to establish or amend an energy 
conservation standard, or to determine the appropriate level at which 
to amend or establish any energy conservation standard.
    (b) Definitions.
    Act means the Energy Policy and Conservation Act, as amended (42 
U.S.C. 6291-6317).
    Error means an objective mistake in the regulatory text of a pre-
publication draft document that may result in the establishment or 
amendment of an energy conservation standard. Examples of possible 
mistakes that might give rise to Errors include:
    (1) A typographical mistake that causes the regulatory text to 
differ from how the preamble to the pre-publication draft document 
describes the potential standard;
    (2) A calculation mistake that causes the numerical value of a 
potential energy conservation standard to differ from what the draft 
technical support documents accompanying the relevant rulemaking docket 
would justify; or
    (3) A numbering mistake that causes a cross-reference to lead to 
the wrong text.
    Pre-publication draft means a publicly available draft of a 
potential rule establishing or amending an energy conservation standard 
under the Act that the Secretary has not finalized and submitted to the 
Office of the Federal Register for publication.
    Secretary means the Secretary of Energy or an official with 
delegated authority to perform a function of the Secretary of Energy 
under this section.
    (c) Posting of pre-publication drafts. (1) The Secretary may cause 
a pre-publication draft document to be posted on a publicly accessible 
website. Once posted, the Secretary ordinarily will keep the pre-
publication draft document posted for a period of 45 calendar days, but 
the Secretary in his or her discretion may shorten or lengthen the time 
period during which the pre-publication draft document is posted.
    (2) Pre-publication drafts may, in the sole discretion of the 
Secretary, be made available to the public to review for Errors in the 
document's draft regulatory text. The Secretary is not obligated to 
make pre-publication drafts available and will determine which 
documents will be posted on a publicly accessible website for public 
review. The posting of a document pursuant to this section does not 
change its status as a pre-publication draft. With respect to any 
document posted pursuant to this section, the Secretary retains full 
discretion both before and after posting to determine whether to 
establish or amend an energy conservation standard, and the appropriate 
level at which to amend or establish an energy conservation standard.
    (3) Any pre-publication draft document posted pursuant to paragraph 
(c)(1) of this section shall bear the following disclaimer:
    Notice: The text of this pre-publication draft document is not 
final and is subject to further review by the United States Department 
of Energy, including, but not limited to, review for correction based 
on the identification of errors as defined in 10 CFR 430.5. Readers are 
requested to notify the United States Department of Energy, by email at 
[EMAIL ADDRESS PROVIDED IN POSTED NOTICE], of any Errors, as defined in 
such regulations, by no later than midnight on [DATE 45 CALENDAR DAYS 
AFTER DATE OF POSTING OF THE DOCUMENT ON THE DEPARTMENT'S WEBSITE], in 
order that the United States Department of Energy may conduct 
additional review of the regulatory text and make any corrections it 
determines are appropriate.
    (d) Request for error-correction review. (1) A person identifying 
an Error subject to this section may request that the Secretary review 
a potential Error. Such a request must ordinarily be submitted within 
45 calendar days of the posting of the pre-publication draft pursuant 
to paragraph (c)(1) of this section. The Secretary in his or her 
discretion may shorten or lengthen the time period during which such 
requests may be submitted.
    (2)(i) A request under this section must identify a potential Error 
with particularity. The request must specify the regulatory text 
claimed to be erroneous. The request must also provide text that the 
requester contends would be a correct substitute. If a requester is 
unable to identify a correct substitute, the requester may submit a 
request that states that the requester is unable to determine what text 
would be correct and explains why the requester is unable to do so. The 
request must also substantiate the claimed Error by citing evidence 
from the existing record of the rulemaking, demonstrating that the 
regulatory text of the pre-publication draft is inconsistent with what 
the Secretary intended the text to be.
    (ii) A person's disagreement with any policy choices or 
discretionary decisions that are contained in the pre-publication draft 
will not constitute a valid basis for a request under this section. All 
policy and discretionary decisions with regard to whether to establish 
or amend any conservation standard and, if so, the appropriate level at 
which to amend or establish that standard, remain within the sole 
discretion of the Secretary without regard to the procedure established 
in this section.
    (3) The evidence to substantiate a request (or evidence of the 
Error itself) must be in the record of the rulemaking at the time of 
posting the pre-publication draft, which may include an accompanying 
preamble. The Secretary will not consider new evidence submitted in 
connection with an error-correction request.
    (4) A request under this section must be filed in electronic format 
by email to the address that the disclaimer to the pre-publication 
draft designates for error-correction requests. Should filing by email 
not be feasible, the requester should contact the program point of 
contact designated in the pre-publication draft in order to ascertain 
an appropriate alternative means of filing an Error-correction request.
    (5) A request that does not comply with the requirements of this 
section will not be considered.
    (e) Correction of pre-publication draft documents. The Secretary 
may respond to a request for error-correction review under paragraph 
(d) of this section, or address an Error discovered on the Secretary's 
own initiative, at any time the Secretary determines appropriate. The 
Secretary may determine the appropriate remedy, if any, for an 
identified Error, and may initiate further review if it is deemed 
necessary.
    (f) Available outcomes and publication. (1) The Secretary has no 
obligation to consider or respond to any error-correction request.
    (2) The Secretary is under no obligation to submit a document for 
publication to the Office of the Federal Register at any time, 
regardless of whether the time period for submitting an error-
correction request has expired.
    (g) Relationship between pre-publication draft documents and 
prescribed rules; finality of agency's decision. A rule is considered 
``prescribed'' within the meaning of section 325 of the Act (42 U.S.C. 
6295), and thus within the meaning of section 336(b) of the Act (42 
U.S.C. 6306(b)), on the date the rule is published in the Federal 
Register. Any pre-publication draft document that the Secretary allows 
to be reviewed through the Error correction process of this section is 
not

[[Page 64078]]

a final agency action and is not a prescribed rule within the meaning 
of these provisions of the Act.

[FR Doc. 2020-21985 Filed 10-8-20; 8:45 am]
BILLING CODE 6450-01-P