Energy Conservation Program: Final Determination of Portable Electric Spas as a Covered Consumer Product, 54123-54129 [2022-18862]
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Rules and Regulations
Federal Register
Vol. 87, No. 170
Friday, September 2, 2022
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE–2022–BT–DET–0006]
Table of Contents
RIN 1904–AF31
I. Statutory Authority
II. Current Rulemaking Process
III. General Discussion
A. Scope of Coverage
B. Evaluation of Portable Electric Spas as
a Covered Product Subject to Energy
Conservation Standards
1. Coverage Necessary or Appropriate To
Carry Out Purposes of EPCA
2. Average Household Energy Use
IV. Final Determination
V. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866
and 13563
B. Review Under the Regulatory Flexibility
Act
C. Review Under the Paperwork Reduction
Act
D. Review Under the National
Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates
Reform Act of 1995
H. Review Under the Treasury and General
Government Appropriations Act of 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General
Government Appropriations Act of 2001
K. Review Under Executive Order 13211
L. Information Quality
M. Congressional Notification
VI. Approval of the Office of the Secretary
Energy Conservation Program: Final
Determination of Portable Electric
Spas as a Covered Consumer Product
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Final rule; final determination.
AGENCY:
The U.S. Department of
Energy (‘‘DOE’’) has determined that
portable electric spas qualify as a
covered product under Part A of Title III
of the Energy Policy and Conservation
Act, as amended (‘‘EPCA’’). DOE has
determined that classifying portable
electric spas as covered products is
necessary or appropriate to carry out the
purposes of EPCA, and that the average
U.S. household energy use for portable
electric spas is likely to exceed 100
kilowatt-hours per year.
DATES: This final rule is effective
November 1, 2022.
ADDRESSES: The docket for this
rulemaking, which includes Federal
Register notices, comments, and other
supporting documents/materials, is
available for review at
www.regulations.gov. All documents in
the docket are listed in the
www.regulations.gov index. However,
not all documents listed in the index
may be publicly available, such as
information that is exempt from public
disclosure.
The docket web page can be found at
www.regulations.gov/docket/EERE2022-BT-DET-0006. The docket web
page contains instructions on how to
access all documents, including public
comments, in the docket.
FOR FURTHER INFORMATION CONTACT: Mr.
Jeremy Dommu, U.S. Department of
Energy, Office of Energy Efficiency and
Renewable Energy, Building
SUMMARY:
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Technologies Office, EE–2J, 1000
Independence Avenue SW, Washington,
DC 20585–0121. Telephone: (202) 586–
9870. Email:
ApplianceStandardsQuestions@
ee.doe.gov.
Ms. Kristin Koernig, U.S. Department
of Energy, Office of the General Counsel,
GC–33, 1000 Independence Avenue SW,
Washington, DC 20585–0121.
Telephone: (202) 586–3593. Email:
Kristin.koernig@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
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I. Statutory Authority
EPCA 1 authorizes DOE to regulate the
energy efficiency of a number of
consumer products and certain
industrial equipment. (42 U.S.C. 6291–
6317) Title III, Part B 2 of EPCA
established the Energy Conservation
Program for Consumer Products Other
Than Automobiles, which sets forth a
variety of provisions designed to
1 All references to EPCA in this document refer
to the statute as amended through the Energy Act
of 2020, Public Law 116–260 (Dec. 27, 2020), which
reflect the last statutory amendments that impact
Parts A and A–1 of EPCA.
2 For editorial reasons, upon codification in the
U.S. Code, Part B was redesignated Part A.
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improve energy efficiency for certain
consumer products, referred to generally
as ‘‘covered products.’’ 3 In addition to
specifying a list of consumer products
that are covered products, EPCA
contains provisions that enable the
Secretary of Energy to classify
additional types of consumer products
as covered products. For a given
consumer product to be classified as a
covered product, the Secretary must
determine that: classifying the product
as a covered product is necessary or
appropriate to carry out the purposes of
EPCA; and the average annual perhousehold energy use by products of
such type is likely to exceed 100
kilowatt-hours (‘‘kWh’’) (or its British
thermal unit (‘‘Btu’’) equivalent) per
year. (42 U.S.C. 6292(b)(1)) 4
When considering covering additional
consumer product types, DOE must first
determine whether these criteria from
42 U.S.C. 6292(b)(1) are met. Once a
determination is made, the Secretary
may prescribe test procedures to
measure the energy efficiency or energy
use of such product. (42 U.S.C. 6293(a))
Furthermore, once a product is
determined to be a covered product, the
Secretary may establish standards for
such product, subject to the provisions
in 42 U.S.C. 6295(o) and (p), provided
that DOE determines that the additional
criteria at 42 U.S.C. 6295(l) have been
met. Specifically, 42 U.S.C. 6295(l)
requires the Secretary to determine that:
the average household energy use of the
products has exceeded 150 kWh per
household for a 12-month period; the
3 The enumerated list of covered products is at 42
U.S.C. 6292(a)(1)–(19).
4 DOE has defined ‘‘household’’ to mean an entity
consisting of either an individual, a family, or a
group of unrelated individuals, who reside in a
particular housing unit. For the purpose of this
definition:
Group quarters means living quarters that are
occupied by an institutional group of 10 or more
unrelated persons, such as a nursing home, military
barracks, halfway house, college dormitory,
fraternity or sorority house, convent, shelter, jail or
correctional institution.
Housing unit means a house, an apartment, a
group of rooms, or a single room occupied as
separate living quarters, but does not include group
quarters.
Separate living quarters means living quarters to
which the occupants have access either directly
from outside of the building, or through a common
hall that is accessible to other living quarters and
that does not go through someone else’s living
quarters, and is occupied by one or more persons
who live and eat separately from occupant(s) of
other living quarters, if any, in the same building.
10 CFR 430.2.
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aggregate 12-month energy use of the
products has exceeded 4200 gigawatthours; substantial improvement in
energy efficiency of products of such
type is technologically feasible; and
application of a labeling rule under 42
U.S.C. 6294 is unlikely to be sufficient
to induce manufacturers to produce,
and consumers and other persons to
purchase, covered products of such type
(or class) that achieve the maximum
energy efficiency that is technologically
feasible and economically justified. (42
U.S.C. 6295(l)(1))
II. Current Rulemaking Process
DOE has not previously conducted a
rulemaking for portable electric spas.
On February 16, 2022, DOE published
in the Federal Register a notice of
proposed determination of coverage
(‘‘NOPD’’), in which it determined
tentatively that portable electric spas
satisfy the provisions of 42 U.S.C.
6292(b)(1) (‘‘February 2022 NOPD’’). 87
FR 8745.
DOE received comments in response
to the February 2022 NOPD from the
interested parties listed in Table II.1.
TABLE II.1—WRITTEN COMMENTS RECEIVED IN RESPONSE TO FEBRUARY 2022 NOPD
Abbreviation
Pool and Hot Tub Alliance (‘‘PHTA’’) and International Hot Tub Association (‘‘IHTA’’).
The Appliance Standards Awareness Project (‘‘ASAP’’), the American
Council for an Energy-Efficient Economy, the Natural Resources
Defense Council, and the Northwest Energy Efficiency Alliance.
California Energy Commission ..............................................................
New York State Energy Research and Development Authority. ...........
Pacific Gas and Electric Company, San Diego Gas and Electric, and
Southern California Edison; collectively, the California InvestorOwned Utilities.
PHTA/IHTA .........
3
Trade Association.
ASAP et al ..........
7
Efficiency Organization.
CEC .....................
NYSERDA ...........
CA IOUs ..............
4
6
5
State Agency.
State Agency.
Utility.
A parenthetical reference at the end of
a comment quotation or paraphrase
provides the location of the item in the
public record.5
In response to the February 2022
NOPD, DOE received certain comments
pertaining to the scope of coverage and
energy use that are relevant for the
statutory requirements of coverage for
portable electric spas. DOE discusses
these comments in the following
sections. DOE also received certain
comments in response to the February
2022 NOPD pertaining to potential test
procedure or standards rulemakings.6
DOE will discuss these comments in
subsequent rulemakings, should DOE
pursue such rulemakings.
After considering the public
comments on the February 2022 NOPD,
DOE is issuing this final determination
of coverage for portable electric spas.
DOE is not prescribing test procedures
or energy conservation standards as part
of this determination.
III. General Discussion
Portable electric spas are factory-built
hot tubs or spas that are intended for the
immersion of people in heated,
temperature-controlled water that is
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Document No.
in docket
Commenter(s)
5 The parenthetical reference provides a reference
for information located in the docket of DOE’s
rulemaking to determine coverage for portable
electric spas. (Docket No. EERE–2022–BT–DET–
0006, which is maintained at www.regulations.gov).
The references are arranged as follows: (commenter
name, comment docket ID number, page of that
document).
6 Portions of the comments from PHTA/IHTA
(No. 3), CEC (No. 4), CA IOUs (No. 5), NYSERDA
(No. 6), and ASAP et al. (No. 7) pertained to
potential test procedure or standards rulemakings.
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circulated in a closed system. DOE’s
analysis and consideration of comments
received in response to the February
2022 NOPD indicate that portable
electric spas meet the statutory
requirements under 42 U.S.C.
6292(b)(1), and therefore DOE is issuing
this final determination that portable
electric spas are a covered product.
DOE will consider test procedure and
energy conservation standards
rulemakings for portable electric spas in
the future. DOE will determine if
portable electric spas satisfy the
provisions of 42 U.S.C. 6295(l)(1) during
the course of the energy conservation
standards rulemaking, should DOE
pursue such rulemaking.
While DOE received comments on
specific topics in response to the
February 2022 NOPD, as discussed in
sections III.A and III.B of this document,
commenters also provided general
feedback on the proposed determination
of coverage for portable electric spas.
PHTA/IHTA supported DOE’s
proposed determination that portable
electric spas are a covered consumer
product and that such coverage is
necessary and appropriate to carry out
the purposes of EPCA. PHTA/IHTA
asserted that portable electric spas meet
the EPCA thresholds and that a final
determination of coverage is warranted
and appropriate. PHTA/IHTA
encouraged DOE to proceed with both
test procedure and standards
rulemakings. (PHTA/IHTA, No. 3 at p.
2)
The CEC agreed that portable electric
spas meet the necessary requirements
for coverage under EPCA and supported
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Commenter type
the proposed determination to include
portable electric spas as a federally
covered product. (CEC, No. 4 at pp. 1,
5) The CA IOUs supported also the
inclusion of portable electric spas as a
covered product. (CA IOUs, No. 5 at p.
1) Similarly, NYSERDA, and ASAP at
al. supported DOE’s preliminary
determination that portable electric spas
qualify as covered products under
EPCA. (NYSERDA, No. 6 at pp. 1–2;
ASAP et al., No. 7 at p. 1)
In this final determination, DOE is
classifying portable electric spas as a
covered product.
A. Scope of Coverage
As stated previously in this
document, portable electric spas are
factory-built hot tubs or spas that are
intended for the immersion of people in
heated, temperature-controlled water
that is circulated in a closed system. A
wide range of portable electric spa
products are available on the market,
including standard spas, exercise spas,
combination spas, and inflatable spas.
In the February 2022 NOPD, DOE
examined existing classifications of
portable electric spas to inform its
proposed definition. PHTA publishes a
standard method of test, certified by
American National Standards Institute
(‘‘ANSI’’), for measuring the
performance of portable electric spas,
titled ANSI/Association of Pool and Spa
Professionals (‘‘APSP’’)/International
Code Council (‘‘ICC’’) 14 2019,
American National Standard for
Portable Electric Spa Energy Efficiency
(‘‘ANSI/APSP/ICC–14 2019’’ or ‘‘APSP–
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14’’).7 Section 3 of ANSI/APSP/ICC–14
2019 defines ‘‘Portable Electric Spa’’ as
‘‘a factory built electric spa or hot tub,
supplied with equipment for heating
and circulating water at the time of sale
or sold separately for subsequent
attachment’’ and includes additional
definitions for ‘‘spa’’ and various
categories of portable electric spa. The
CEC regulations define ‘‘portable
electric spa’’ and most of the spa
categories consistently with ANSI/
APSP/ICC–14 2019,8 though the CEC
does not define the term ‘‘spa’’.
For the purpose of the analysis
described in the February 2022 NOPD,
DOE evaluated portable electric spas as
factory-built electric spas or hot tubs,
supplied with equipment for heating
and circulating water at the time of sale
or sold separately for subsequent
attachment. DOE proposed to adopt this
definition, consistent with the term as
defined by ANSI/APSP/ICC–14 2019
and the CEC, to inform stakeholders
while DOE continued its analysis. 87 FR
8745, 8747. DOE noted that this
proposed definition would exclude
units that are site-assembled, such as
spas that are permanently installed in
the ground or attached to a pool, and
spas sold with methods of water heating
other than electricity, such as propane
or natural gas spa heaters or wood-fired
hot tubs. Id. DOE requested comment on
the proposed definition and scope of
coverage of portable electric spas. Id.
In response to the February 2022
NOPD, PHTA/IHTA expressed support
for the proposed definition and scope
but noted that it is important to clarify
that portable electric spas are not
permanently installed in the ground or
attached to a pool. PHTA/IHTA
suggested that DOE consider defining
other types of ‘‘spa’’ products and
indicating that they are excluded from
coverage. For this purpose, PHTA/IHTA
stated that DOE should consider
utilizing definitions commonly used by
industry and state and local
governments that can be found in
widely adopted ANSI standards and
codes, such as the International
Swimming Pool & Spa Code codeveloped by the ICC and PHTA.
PHTA/IHTA also encouraged DOE to
utilize the APSP–14 definition for
inflatable spa. (PHTA/IHTA, No. 3 at
pp. 3–4)
The CEC stated that, because
California, along with other states, has
7 ANSI/APSP/ICC–14
2019 is available at:
webstore.ansi.org/standards/apsp/
ansiapspicc142019.
8 See section 1602(g)(2) of Article 4 of Division 2
of Title 20 of the California Code of Regulations.
There is some variation in the definition of exercise
spa as compared to ANSI/APSP/ICC–14 2019.
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adopted APSP–14 in its entirety, the
CEC encouraged DOE to consider
matching the scope, definitions, test
procedure, and label design specified in
APSP–14 to maintain consistency
among states and spa manufacturers.
(CEC No. 4, at p. 5) The CA IOUs
supported the proposed definition
adopting APSP–14 nomenclature and
the distinction between self-contained 9
versus non-self-contained units, as well
as the proposed scope. (CA IOUs, No. 5
at p. 3) ASAP et al. also supported the
proposed scope of coverage, which they
understand would include standard
spas, exercise spas, combination spas,
and inflatable spas as defined in ANSI/
APSP/ICC–14–2019. (ASAP et al., No. 7
at p. 1)
The purpose of the proposed
definition, which DOE is adopting in
this final determination, is to identify
the scope of the covered product (i.e.,
portable electric spas). In identifying
whether a product is a consumer
product for consideration as a covered
product, DOE evaluates whether such
product is of a type which in operation
consumes, or is designed to consume,
energy; and, to any significant extent, is
distributed in commerce for personal
use or consumption by individuals;
without regard to whether such article
of such type is in fact distributed in
commerce for personal use or
consumption by an individual. (42
U.S.C. 6291(1))
The portable electric spa definition
DOE is adopting in this final
determination establishes the coverage
of ‘‘portable electric spas’’ for the
purpose of Part A of EPCA. The scope
of coverage is separate from a
determination of the applicability of test
procedures or energy conservation
standards, should DOE establish test
procedures and energy conservation
standards. The scope of any test
procedure or energy conservation
standards would be considered in these
respective rulemakings to the extent
DOE pursues such rulemakings. As
such, in this final determination, DOE is
classifying ‘‘portable electric spas’’ as a
covered product and the definition
establishes the scope of coverage for that
purpose.
In summary, based on the preceding
discussion, DOE is defining ‘‘portable
electric spa’’ in 10 CFR 430.2 as a
factory-built electric spa or hot tub,
supplied with equipment for heating
and circulating water at the time of sale
or sold separately for subsequent
9 APSP–14 2019 defines ‘‘self-contained spa’’ as
‘‘A factory-built spa in which all control, water
heating and water circulating equipment is an
integral part of the product. Self-contained spas
may be permanently wired or cord connected.’’
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attachment. This definition is consistent
with the term as defined by ANSI/
APSP/ICC–14 2019 and the CEC. DOE
notes that this definition—by using the
term ‘‘factory-built’’—excludes units
that are site-assembled, such as portable
electric spas that are permanently
installed in the ground or attached to a
pool, and spas sold with methods of
water heating other than electricity,
such as propane or natural gas spa
heaters or wood-fired hot tubs.
B. Evaluation of Portable Electric Spas
as a Covered Product Subject to Energy
Conservation Standards
The following sections describe DOE’s
evaluation of whether portable electric
spas fulfill the criteria for being added
as a covered product pursuant to 42
U.S.C. 6292(b)(1). As stated, DOE may
classify a consumer product as a
covered product if:
(1) Classifying products of such type
as covered products is necessary or
appropriate to carry out the purposes of
EPCA; and
(2) The average annual per-household
energy use by products of such type is
likely to exceed 100 kWh (or its Btu
equivalent) per year. (42 U.S.C.
6292(b)(1))
1. Coverage Necessary or Appropriate
To Carry Out Purposes of EPCA
DOE has determined that coverage of
portable electric spas is both necessary
and appropriate to carry out the
purposes of EPCA, which include:
(1) To conserve energy supplies
through energy conservation programs,
and, where necessary, the regulation of
certain energy uses; and
(2) To provide for improved energy
efficiency of motor vehicles, major
appliances, and certain other consumer
products. (42 U.S.C. 6201(4) and (5))
In the February 2022 NOPD, DOE
cited data from the DOE Energy
Information Administration’s
Residential Energy Consumption Survey
(‘‘RECS’’), which indicated an installed
base of 8.4 million spas in the U.S. in
2015.10 87 FR 8745, 8747. DOE also
obtained data from PKData and based on
that data, DOE estimated that in 2019,
the existing stock of residential hot tubs
(as separate from the stock of spas in
residential pools) was approximately 5.5
million, with approximately 95 percent
of these being electric spas.11 Id. Based
10 Available at www.eia.gov/consumption/
residential/data/2015. DOE notes that this number
likely includes spas that do not meet the proposed
definition of portable electric spa.
11 P.K. Data Inc. 2020 Pool Heaters Market Data:
Custom Compilation for Lawrence Berkeley
National Laboratory. 2020. Alpharetta, GA. (Last
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on these same data, DOE also estimated
that approximately 230,000 electric spas
were shipped in 2019. Id. DOE
requested data and information
regarding current annual shipments of
portable electric spas and the installed
base of portable electric spas, specifying
the scope of products included in any
such estimates (e.g., standard, exercise,
combination, inflatable, etc.). Id.
PHTA/IHTA agreed with the existing
data from RECS and PKData and stated
that industry also relies on those data
sources. (PHTA/IHTA, No. 3 at p. 4)
In the February 2022 NOPD, DOE
noted that the CEC published a final
staff report analyzing efficiency
standards and marking for spas,12 which
indicated that technologies exist, and
are already available in the market, to
reduce the energy consumption of
portable electric spas. DOE requested
comment on the availability of
technologies for improving energy
efficiency of portable electric spas. 87
FR 8745, 8747.
PHTA/IHTA commented that the
industry has been working on these
technologies and improving them since
2008 and the technologies employed
under the 2019 edition of ANSI/APSP/
ICC–14 represent what is currently
available and feasible. (PHTA/IHTA,
No. 3 at p. 6) The CEC estimated
potential technology options in the
existing and future portable electric spa
market. (CEC No. 4, at p. 5) And ASAP
et al. noted that heat pump technology
offers the potential to substantially
reduce portable electric spa energy use.
(ASAP et al., No. 7 at p. 2)
Commenters also agreed generally
that coverage of portable electric spas is
necessary or appropriate to carry out the
purposes of EPCA. PHTA/IHTA stated
that classifying portable electric spas as
a covered product is necessary and
appropriate to carry out the purposes of
EPCA. (PHTA/IHTA, No. 3 at pp. 1, 6)
NYSERDA agreed with DOE’s proposed
determination that coverage is
appropriate to carry out the purposes of
EPCA. (NYSERDA, No. 6 at p. 2)
DOE has determined that the coverage
of portable electric spas is both
necessary and appropriate to carry out
the purposes of EPCA. As indicated by
the shipments data, annual sales of
portable electric spas are significant
within the consumer products market.
Portable electric spas consume energy
accessed July 1, 2021.) www.pkdata.com/reportsstore.html#/.
12 Final Staff Report, Analysis of Efficiency
Standards and Marking for Spas, 2018 Appliance
Efficiency Rulemaking for Spas Docket Number 18–
AAER–02 TN 222413. Available online at efiling.
energy.ca.gov/GetDocument.aspx?tn=222413&
DocumentContentId=31256.
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generated from limited energy supplies
and regulating their energy efficiency
would likely help conserve these
limited energy supplies. And as
indicated by commenters and the CEC
staff report, technologies exist for
improving energy efficiency of portable
electric spas.
As a coverage determination is a
prerequisite to establishing standards
for these products, classifying portable
electric spas as a covered product is
necessary and appropriate to carry out
EPCA’s purposes to: conserve energy
supplies through energy conservation
programs, and provide for improved
energy efficiency of major appliances
and certain other consumer products.
(42 U.S.C. 6201(4) and (5))
2. Average Household Energy Use
In the February 2022 NOPD, DOE
estimated the average household energy
use for portable electric spas, in
households that use the product, using
power consumption data reported in the
CEC database (‘‘MAEDbS’’).13 87 FR
8745, 8747. MAEDbS is the only
publicly available source that provides
energy consumption data for portable
electric spas of which DOE is aware.
MAEDbS certification requires that
standby power is measured according to
ANSI/APSP/ICC–14 2019. For each
model, MAEDbS lists the standby 14
power in watts (‘‘W’’), along with other
relevant capacity and performance
metrics. For portable electric spas
measured according to the test
procedure in ANSI/APSP/ICC–14 2019,
standby operation is the predominant
mode of spa operation and includes
power use to maintain the set
temperature and to circulate and filter
the water. The CEC estimated that
standby operation represents 75 percent
of the energy consumed by a portable
electric spa, with the remainder being
startup mode, when the spa is heating
up to its operating temperature, and
active mode,15 when the spa’s water jets
are operating.16 Id. at 87 FR 8748. The
CEC reported a duty cycle between
5,040 hours per year for inflatable spas
(which are intended for seasonal use)
13 CEC Modernized Appliance Efficiency
Database System. Accessed December 17, 2021.
Available online at cacertappliances.energy.ca.gov.
14 DOE notes that use of the term ‘‘standby’’ and
‘‘standby mode’’ in ANSI/APSP/ICC–14 2019 differs
from EPCA’s definition of ‘‘standby mode.’’ See 42
U.S.C. 6295(gg)(1)(A)(iii).
15 DOE notes that use of the term ‘‘active mode’’
differs from EPCA’s definition of ‘‘active mode.’’
See 42 U.S.C. 6295(gg)(1)(A)(i).
16 Final Staff Report, Analysis of Efficiency
Standards and Marking for Spas, 2018 Appliance
Efficiency Rulemaking for Spas Docket Number 18–
AAER–02 TN 222413. Available online at efiling.
energy.ca.gov/GetDocument.aspx?tn=222413&
DocumentContentId=31256.
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and 8,760 hours per year for standard,
exercise, and combination spas, during
the process of updating the standards
for California in 2018.17 Id.
Using average power consumption for
a standard spa of 194 W (the lowest
average of the categories in MAEDbS)
and 8,760 hours per year of use, DOE
estimated an average standby energy
consumption of 1,699 kWh per year for
portable electric spas in the February
2022 NOPD. Id. DOE noted that use of
the minimum standby power found in
MAEDbS (40 W) and the estimated
5,040 hours per year of use for inflatable
spas exceeds 200 kWh per year energy
use. In addition, the rest of the country
may have shipments of portable electric
spas that exceed California’s and other
states’ maximum power consumption
standards. Id. at 87 FR 8749.
In a presentation sent to DOE in
December 2021,18 PHTA/IHTA, CA
IOUs, and ASAP also provided an
estimate of average energy use based on
RECS. They estimated that portable
electric spas consume 5.755 billion
kWh/year in the U.S. and that 3.673
million households in the U.S. operate
portable electric spas regularly. These
estimates result in average energy
consumption of 1,567 kWh per year per
household, which is similar to DOE’s
estimate of 1,699 kWh per year.
For these reasons, although there may
be variation due to climate or spa size
that might impact annual per-household
energy use as compared to DOE’s
estimate of 1,699 kWh/year (either
higher or lower), in the February 2022
NOPD, DOE tentatively determined that
the average annual per-household
energy use for portable electric spas is
very likely to exceed 100 kWh per year,
satisfying the provisions of 42 U.S.C.
6292(b)(1). Id. DOE requested data and
information on: (1) the national
representativeness of the spa volume
bins in Table IV.I of the February 2022
NOPD; (2) the range of standby power
consumption of spas in non-regulated
markets; (3) the standby power
consumption at the different volumes
for all types of portable electric spas;
and (4) the active power consumption at
the different volumes for all types of
portable electric spas. Id.
In response to the February 2022
NOPD, DOE received comments
regarding the average household energy
use of portable electric spas. PHTA/
IHTA stated that Table IV.I in the
February 2022 NOPD (which presented
reported power consumption by spa
category and volume) is an accurate
17 Ibid.
18 www.regulations.gov/document/EERE-2022-BTDET-0006-0001.
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Federal Register / Vol. 87, No. 170 / Friday, September 2, 2022 / Rules and Regulations
assessment of what is in the CEC
database but noted the products in the
CEC database represent standby power.
PHTA/IHTA did not have specific data
and information on the range of standby
power consumption of spas in nonregulated markets or active power
consumption at different volumes for all
types of portable electric spas. But
PHTA/IHTA agreed that it is extremely
likely that the average annual perhousehold energy use by portable
electric spas exceeds 100 kWh per year.
(PHTA/IHTA, No. 3 at pp. 5–6)
ASAP et al. stated that DOE’s estimate
of average standby power consumption
is likely a conservative estimate of
energy use since it does not include
power consumed in startup mode or
active mode, and it also does not
account for models sold in nonregulated markets that may not meet the
CEC standards. (ASAP et al., No. 7 at p.
1) The CA IOUs noted that the analysis
conducted by PHTA, CA IOUs, and
ASAP,19 which indicated an average
unit energy consumption of portable
electric spas of 1,567 kWh/year,
significantly exceeds the EPCA
threshold of 100 kWh/year required to
designate a product as a covered
product. (CA IOUs, No. 5 at p. 1)
NYSERDA also agreed that the average
annual household energy consumption
is well above 100 kWh. (NYSERDA, No.
6 at p. 2)
As supported by the analysis
presented in the February 2022 NOPD
and the preceding comments, DOE
makes a final determination that the
average annual per-household energy
use for portable electric spas is likely to
exceed 100 kWh/year, satisfying the
provisions of 42 U.S.C. 6292(b)(1).
lotter on DSK11XQN23PROD with RULES1
IV. Final Determination
Based on the foregoing discussion,
DOE concludes that including portable
electric spas, as defined in this final
determination, as covered products is
necessary and appropriate to carry out
the purposes of EPCA, and the average
annual per-household energy use by
products of such type is likely to exceed
100 kWh/yr. Based on the information
discussed in section III of this
document, DOE is classifying portable
electric spas as a covered product.
This final determination does not
establish test procedures or energy
conservation standards for portable
electric spas. DOE will address test
procedures and energy conservation
standards through its normal
rulemaking process, should DOE pursue
such rulemakings.
19 Ibid.
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V. Procedural Issues and Regulatory
Review
B. Review Under the Regulatory
Flexibility Act
A. Review Under Executive Order 12866
and 13563
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 E.O. 13272, ‘‘Proper
Consideration of Small Entities in
Agency Rulemaking,’’ 67 FR 53461
(Aug. 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 (www.energy.gov/gc/
office-general-counsel).
DOE reviewed this determination
under the provisions of the Regulatory
Flexibility Act and the policies and
procedures published on February 19,
2003. This determination sets no
standards; it only positively determines
that future standards may be warranted
and should be explored in any future
energy conservation standards and test
procedure rulemakings. Economic
impacts on small entities would be
considered in the context of such
rulemakings. On the basis of the
foregoing, DOE certifies that the
coverage determination would have no
significant economic impact on a
substantial number of small entities.
Accordingly, DOE has not prepared a
FRFA for this determination. DOE has
transmitted this certification and
supporting statement of factual basis to
the Chief Counsel for Advocacy of the
Small Business Administration for
review under 5 U.S.C. 605(b).
Executive Order (‘‘E.O.’’) 12866,
‘‘Regulatory Planning and Review,’’ as
supplemented and reaffirmed by E.O.
13563, ‘‘Improving Regulation and
Regulatory Review,’’ 76 FR 3821 (Jan.
21, 2011), requires agencies, to the
extent permitted by law, to: (1) propose
or adopt a regulation only upon a
reasoned determination that its benefits
justify its costs (recognizing that some
benefits and costs are difficult to
quantify); (2) tailor regulations to
impose the least burden on society,
consistent with obtaining regulatory
objectives, taking into account, among
other things, and to the extent
practicable, the costs of cumulative
regulations; (3) select, in choosing
among alternative regulatory
approaches, those approaches that
maximize net benefits (including
potential economic, environmental,
public health and safety, and other
advantages; distributive impacts; and
equity); (4) to the extent feasible, specify
performance objectives, rather than
specifying the behavior or manner of
compliance that regulated entities must
adopt; and (5) identify and assess
available alternatives to direct
regulation, including providing
economic incentives to encourage the
desired behavior, such as user fees or
marketable permits, or providing
information upon which choices can be
made by the public. DOE emphasizes as
well that E.O. 13563 requires agencies to
use the best available techniques to
quantify anticipated present and future
benefits and costs as accurately as
possible. In its guidance, the Office of
Information and Regulatory Affairs
(‘‘OIRA’’) in the Office of Management
and Budget (‘‘OMB’’) has emphasized
that such techniques may include
identifying changing future compliance
costs that might result from
technological innovation or anticipated
behavioral changes. For the reasons
stated in the preamble, this final
regulatory action is consistent with
these principles.
Section 6(a) of E.O. 12866 also
requires agencies to submit ‘‘significant
regulatory actions’’ to OIRA for review.
OIRA has determined that this
regulatory action does not constitute a
‘‘significant regulatory action’’ under
section 3(f) of E.O. 12866. Accordingly,
this action was not submitted to OIRA
for review under E.O. 12866.
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
C. Review Under the Paperwork
Reduction Act
This determination, which concludes
that portable electric spas meet the
criteria for a covered product for which
the Secretary may prescribe an energy
conservation standard pursuant to 42
U.S.C. 6295(o) and (p), imposes no new
information or record-keeping
requirements. Accordingly, the OMB
clearance is not required under the
Paperwork Reduction Act. (44 U.S.C.
3501 et seq.)
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Federal Register / Vol. 87, No. 170 / Friday, September 2, 2022 / Rules and Regulations
D. Review Under the National
Environmental Policy Act of 1969
Pursuant to the National
Environmental Policy Act of 1969
(‘‘NEPA’’), DOE has analyzed this final
determination in accordance with NEPA
and DOE’s NEPA implementing
regulations (10 CFR part 1021). DOE
analyzed this regulation in accordance
with the National Environmental Policy
Act (‘‘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 A6. This rulemaking qualifies
for categorical exclusion A6 because it
is a strictly procedural rulemaking and
otherwise meets the requirements for
application of a categorical exclusion.
See 10 CFR 1021.410. Accordingly,
neither an environmental assessment
nor an environmental impact statement
is required.
lotter on DSK11XQN23PROD with RULES1
E. Review Under Executive Order 13132
E.O. 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 it will follow in the
development of such regulations. 65 FR
13735. DOE has examined this
determination and concludes that it
would 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 product that
is the subject of this determination.
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 E.O. 13132.
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15:55 Sep 01, 2022
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F. Review Under Executive Order 12988
With respect to the review of existing
regulations and the promulgation of
new regulations, section 3(a) of E.O.
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 E.O. 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 E.O. 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
determination meets the relevant
standards of E.O. 12988.
G. 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
UMRA 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
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
for giving notice and opportunity for
timely input to potentially affected
small governments before establishing
any requirement 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
www.energy.gov/sites/prod/files/gcprod/
documents/umra_97.pdf.
DOE examined this determination
according to UMRA and its statement of
policy and determined that the
determination does not contain a
Federal intergovernmental mandate, nor
is it expected to require expenditures of
$100 million or more in any one year by
State, local, and Tribal governments, in
the aggregate, or by the private sector.
As a result, the analytical requirements
of UMRA do not apply.
H. Review Under the Treasury and
General Government Appropriations
Act of 1999
Section 654 of the Treasury and
General Government Appropriations
Act of 1999 (Pub. L. 105–277) requires
Federal agencies to issue a Family
Policymaking Assessment for any rule
that may affect family well-being. This
determination would 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.
I. Review Under Executive Order 12630
Pursuant to E.O. 12630,
‘‘Governmental Actions and Interference
with Constitutionally Protected Property
Rights,’’ 53 FR 8859 (Mar. 15, 1988),
DOE has determined that this
determination would not result in any
takings that might require compensation
under the Fifth Amendment to the U.S.
Constitution.
J. Review Under the Treasury and
General Government Appropriations
Act of 2001
Section 515 of the Treasury and
General Government Appropriation 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). Pursuant to
OMB Memorandum M–19–15,
Improving Implementation of the
Information Quality Act (April 24,
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2019), DOE published updated
guidelines which are available at
www.energy.gov/sites/prod/files/2019/
12/f70/DOE%20Final%20Updated%20
IQA%20Guidelines%20Dec%202019.
pdf. DOE has reviewed this
determination under the OMB and DOE
guidelines and has concluded that it is
consistent with applicable policies in
those guidelines.
lotter on DSK11XQN23PROD with RULES1
K. Review Under Executive Order 13211
E.O. 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 a Statement of Energy Effects
for any 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
E.O. 12866, or any successor Executive
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 should the proposal
be implemented, and of reasonable
alternatives to the action and their
expected benefits on energy supply,
distribution, and use.
This determination, which does not
amend or establish energy conservation
standards for portable electric spas, is
not a significant regulatory action under
E. O. 12866. Moreover, it would not
have a significant adverse effect on the
supply, distribution, or use of energy,
nor has it been designated as such by
the Administrator at OIRA. Accordingly,
DOE has not prepared a Statement of
Energy Effects.
L. Information Quality
On December 16, 2004, OMB, in
consultation with the Office of Science
and Technology Policy (‘‘OSTP’’),
issued its Final Information Quality
Bulletin for Peer Review (‘‘the
Bulletin’’). 70 FR 2664 (Jan. 14, 2005).
The Bulletin establishes that certain
scientific information shall be peer
reviewed by qualified specialists before
it is disseminated by the Federal
Government, including influential
scientific information related to agency
regulatory actions. The purpose of the
bulletin is to enhance the quality and
credibility of the Government’s
scientific information. Under the
Bulletin, the energy conservation
standards rulemaking analyses are
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Jkt 256001
‘‘influential scientific information,’’
which the Bulletin defines as ‘‘scientific
information the agency reasonably can
determine will have, or does have, a
clear and substantial impact on
important public policies or private
sector decisions.’’ Id. at 70 FR 2667.
In response to OMB’s Bulletin, DOE
conducted formal peer reviews of the
energy conservation standards
development process and the analyses
that are typically used and has prepared
a Peer Review report pertaining to the
energy conservation standards
rulemaking analyses.20 Generation of
this report involved a rigorous, formal,
and documented evaluation using
objective criteria and qualified and
independent reviewers to make a
judgment as to the technical/scientific/
business merit, the actual or anticipated
results, and the productivity and
management effectiveness of programs
and/or projects. Because available data,
models, and technological
understanding have changed since 2007,
DOE has engaged with the National
Academy of Sciences to review DOE’s
analytical methodologies to ascertain
whether modifications are needed to
improve the Department’s analyses.
DOE is in the process of evaluating the
resulting report.21
As required by 5 U.S.C. 801, DOE will
report to Congress on the promulgation
of this final determination prior to its
effective date. The report will state that
it has been determined that the final
determination is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
VI. Approval of the Office of the
Secretary
The Secretary of Energy has approved
publication of this final determination.
List of Subjects in 10 CFR Part 430
Administrative practice and
procedure, Confidential business
information, Energy conservation,
Intergovernmental relations, Reporting
and recordkeeping requirements, Small
businesses.
Signing Authority
This document of the Department of
Energy was signed on August 26, 2022,
by Dr. Geraldine L. Richmond,
Undersecretary of Science and
20 ‘‘Energy Conservation Standards Rulemaking
Peer Review Report.’’ 2007. Available at energy.gov/
eere/buildings/downloads/energy-conservationstandards-rulemaking-peer-review-report-0.
21 The report is available at
www.nationalacademies.org/our-work/review-ofmethods-for-setting-building-and-equipmentperformance-standards.
Frm 00007
Fmt 4700
Sfmt 9990
Innovation, 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 August 26,
2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S.
Department of Energy.
For the reasons stated in the
preamble, DOE amends part 430 of
chapter II of title 10, Code of Federal
Regulations as set forth below:
PART 430—ENERGY CONSERVATION
PROGRAM FOR CONSUMER
PRODUCTS
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.
M. Congressional Notification
PO 00000
54129
2. Section 430.2 is amended by:
a. Revising the definition of ‘‘Covered
product’’; and
■ b. Adding in alphabetical order the
definition of ‘‘Portable electric spa’’.
The addition and revision read as
follows:
■
■
§ 430.2
Definitions.
*
*
*
*
*
Covered product means a consumer
product—
(1) Of a type specified in section 322
of the Act; or
(2) That is an air cleaner, battery
charger, ceiling fan, ceiling fan light kit,
dehumidifier, external power supply,
medium base compact fluorescent lamp,
miscellaneous refrigeration product,
portable air conditioner, portable
electric spa, or torchiere.
*
*
*
*
*
Portable electric spa means a factorybuilt electric spa or hot tub, supplied
with equipment for heating and
circulating water at the time of sale or
sold separately for subsequent
attachment.
*
*
*
*
*
[FR Doc. 2022–18862 Filed 9–1–22; 8:45 am]
BILLING CODE 6450–01–P
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]]>Agencies
[Federal Register Volume 87, Number 170 (Friday, September 2, 2022)]
[Rules and Regulations]
[Pages 54123-54129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18862]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 87, No. 170 / Friday, September 2, 2022 /
Rules and Regulations
[[Page 54123]]
DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2022-BT-DET-0006]
RIN 1904-AF31
Energy Conservation Program: Final Determination of Portable
Electric Spas as a Covered Consumer Product
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final rule; final determination.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Energy (``DOE'') has determined that
portable electric spas qualify as a covered product under Part A of
Title III of the Energy Policy and Conservation Act, as amended
(``EPCA''). DOE has determined that classifying portable electric spas
as covered products is necessary or appropriate to carry out the
purposes of EPCA, and that the average U.S. household energy use for
portable electric spas is likely to exceed 100 kilowatt-hours per year.
DATES: This final rule is effective November 1, 2022.
ADDRESSES: The docket for this rulemaking, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at www.regulations.gov. All documents in the
docket are listed in the www.regulations.gov index. However, not all
documents listed in the index may be publicly available, such as
information that is exempt from public disclosure.
The docket web page can be found at www.regulations.gov/docket/EERE-2022-BT-DET-0006. The docket web page contains instructions on how
to access all documents, including public comments, in the docket.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy Dommu, U.S. Department of
Energy, Office of Energy Efficiency and Renewable Energy, Building
Technologies Office, EE-2J, 1000 Independence Avenue SW, Washington, DC
20585-0121. Telephone: (202) 586-9870. Email:
[email protected].
Ms. Kristin Koernig, U.S. Department of Energy, Office of the
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC
20585-0121. Telephone: (202) 586-3593. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority
II. Current Rulemaking Process
III. General Discussion
A. Scope of Coverage
B. Evaluation of Portable Electric Spas as a Covered Product
Subject to Energy Conservation Standards
1. Coverage Necessary or Appropriate To Carry Out Purposes of
EPCA
2. Average Household Energy Use
IV. Final Determination
V. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866 and 13563
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 13132
F. Review Under Executive Order 12988
G. Review Under the Unfunded Mandates Reform Act of 1995
H. Review Under the Treasury and General Government
Appropriations Act of 1999
I. Review Under Executive Order 12630
J. Review Under the Treasury and General Government
Appropriations Act of 2001
K. Review Under Executive Order 13211
L. Information Quality
M. Congressional Notification
VI. Approval of the Office of the Secretary
I. Statutory Authority
EPCA \1\ authorizes DOE to regulate the energy efficiency of a
number of consumer products and certain industrial equipment. (42
U.S.C. 6291-6317) Title III, Part B \2\ of EPCA established the Energy
Conservation Program for Consumer Products Other Than Automobiles,
which sets forth a variety of provisions designed to improve energy
efficiency for certain consumer products, referred to generally as
``covered products.'' \3\ In addition to specifying a list of consumer
products that are covered products, EPCA contains provisions that
enable the Secretary of Energy to classify additional types of consumer
products as covered products. For a given consumer product to be
classified as a covered product, the Secretary must determine that:
classifying the product as a covered product is necessary or
appropriate to carry out the purposes of EPCA; and the average annual
per-household energy use by products of such type is likely to exceed
100 kilowatt-hours (``kWh'') (or its British thermal unit (``Btu'')
equivalent) per year. (42 U.S.C. 6292(b)(1)) \4\
---------------------------------------------------------------------------
\1\ All references to EPCA in this document refer to the statute
as amended through the Energy Act of 2020, Public Law 116-260 (Dec.
27, 2020), which reflect the last statutory amendments that impact
Parts A and A-1 of EPCA.
\2\ For editorial reasons, upon codification in the U.S. Code,
Part B was redesignated Part A.
\3\ The enumerated list of covered products is at 42 U.S.C.
6292(a)(1)-(19).
\4\ DOE has defined ``household'' to mean an entity consisting
of either an individual, a family, or a group of unrelated
individuals, who reside in a particular housing unit. For the
purpose of this definition:
Group quarters means living quarters that are occupied by an
institutional group of 10 or more unrelated persons, such as a
nursing home, military barracks, halfway house, college dormitory,
fraternity or sorority house, convent, shelter, jail or correctional
institution.
Housing unit means a house, an apartment, a group of rooms, or a
single room occupied as separate living quarters, but does not
include group quarters.
Separate living quarters means living quarters to which the
occupants have access either directly from outside of the building,
or through a common hall that is accessible to other living quarters
and that does not go through someone else's living quarters, and is
occupied by one or more persons who live and eat separately from
occupant(s) of other living quarters, if any, in the same building.
10 CFR 430.2.
---------------------------------------------------------------------------
When considering covering additional consumer product types, DOE
must first determine whether these criteria from 42 U.S.C. 6292(b)(1)
are met. Once a determination is made, the Secretary may prescribe test
procedures to measure the energy efficiency or energy use of such
product. (42 U.S.C. 6293(a)) Furthermore, once a product is determined
to be a covered product, the Secretary may establish standards for such
product, subject to the provisions in 42 U.S.C. 6295(o) and (p),
provided that DOE determines that the additional criteria at 42 U.S.C.
6295(l) have been met. Specifically, 42 U.S.C. 6295(l) requires the
Secretary to determine that: the average household energy use of the
products has exceeded 150 kWh per household for a 12-month period; the
[[Page 54124]]
aggregate 12-month energy use of the products has exceeded 4200
gigawatt-hours; substantial improvement in energy efficiency of
products of such type is technologically feasible; and application of a
labeling rule under 42 U.S.C. 6294 is unlikely to be sufficient to
induce manufacturers to produce, and consumers and other persons to
purchase, covered products of such type (or class) that achieve the
maximum energy efficiency that is technologically feasible and
economically justified. (42 U.S.C. 6295(l)(1))
II. Current Rulemaking Process
DOE has not previously conducted a rulemaking for portable electric
spas. On February 16, 2022, DOE published in the Federal Register a
notice of proposed determination of coverage (``NOPD''), in which it
determined tentatively that portable electric spas satisfy the
provisions of 42 U.S.C. 6292(b)(1) (``February 2022 NOPD''). 87 FR
8745.
DOE received comments in response to the February 2022 NOPD from
the interested parties listed in Table II.1.
Table II.1--Written Comments Received in Response to February 2022 NOPD
----------------------------------------------------------------------------------------------------------------
Document No.
Commenter(s) Abbreviation in docket Commenter type
----------------------------------------------------------------------------------------------------------------
Pool and Hot Tub Alliance (``PHTA'') PHTA/IHTA...................... 3 Trade Association.
and International Hot Tub
Association (``IHTA'').
The Appliance Standards Awareness ASAP et al..................... 7 Efficiency Organization.
Project (``ASAP''), the American
Council for an Energy-Efficient
Economy, the Natural Resources
Defense Council, and the Northwest
Energy Efficiency Alliance.
California Energy Commission......... CEC............................ 4 State Agency.
New York State Energy Research and NYSERDA........................ 6 State Agency.
Development Authority..
Pacific Gas and Electric Company, San CA IOUs........................ 5 Utility.
Diego Gas and Electric, and Southern
California Edison; collectively, the
California Investor-Owned Utilities.
----------------------------------------------------------------------------------------------------------------
A parenthetical reference at the end of a comment quotation or
paraphrase provides the location of the item in the public record.\5\
---------------------------------------------------------------------------
\5\ The parenthetical reference provides a reference for
information located in the docket of DOE's rulemaking to determine
coverage for portable electric spas. (Docket No. EERE-2022-BT-DET-
0006, which is maintained at www.regulations.gov). The references
are arranged as follows: (commenter name, comment docket ID number,
page of that document).
---------------------------------------------------------------------------
In response to the February 2022 NOPD, DOE received certain
comments pertaining to the scope of coverage and energy use that are
relevant for the statutory requirements of coverage for portable
electric spas. DOE discusses these comments in the following sections.
DOE also received certain comments in response to the February 2022
NOPD pertaining to potential test procedure or standards
rulemakings.\6\ DOE will discuss these comments in subsequent
rulemakings, should DOE pursue such rulemakings.
---------------------------------------------------------------------------
\6\ Portions of the comments from PHTA/IHTA (No. 3), CEC (No.
4), CA IOUs (No. 5), NYSERDA (No. 6), and ASAP et al. (No. 7)
pertained to potential test procedure or standards rulemakings.
---------------------------------------------------------------------------
After considering the public comments on the February 2022 NOPD,
DOE is issuing this final determination of coverage for portable
electric spas. DOE is not prescribing test procedures or energy
conservation standards as part of this determination.
III. General Discussion
Portable electric spas are factory-built hot tubs or spas that are
intended for the immersion of people in heated, temperature-controlled
water that is circulated in a closed system. DOE's analysis and
consideration of comments received in response to the February 2022
NOPD indicate that portable electric spas meet the statutory
requirements under 42 U.S.C. 6292(b)(1), and therefore DOE is issuing
this final determination that portable electric spas are a covered
product.
DOE will consider test procedure and energy conservation standards
rulemakings for portable electric spas in the future. DOE will
determine if portable electric spas satisfy the provisions of 42 U.S.C.
6295(l)(1) during the course of the energy conservation standards
rulemaking, should DOE pursue such rulemaking.
While DOE received comments on specific topics in response to the
February 2022 NOPD, as discussed in sections III.A and III.B of this
document, commenters also provided general feedback on the proposed
determination of coverage for portable electric spas.
PHTA/IHTA supported DOE's proposed determination that portable
electric spas are a covered consumer product and that such coverage is
necessary and appropriate to carry out the purposes of EPCA. PHTA/IHTA
asserted that portable electric spas meet the EPCA thresholds and that
a final determination of coverage is warranted and appropriate. PHTA/
IHTA encouraged DOE to proceed with both test procedure and standards
rulemakings. (PHTA/IHTA, No. 3 at p. 2)
The CEC agreed that portable electric spas meet the necessary
requirements for coverage under EPCA and supported the proposed
determination to include portable electric spas as a federally covered
product. (CEC, No. 4 at pp. 1, 5) The CA IOUs supported also the
inclusion of portable electric spas as a covered product. (CA IOUs, No.
5 at p. 1) Similarly, NYSERDA, and ASAP at al. supported DOE's
preliminary determination that portable electric spas qualify as
covered products under EPCA. (NYSERDA, No. 6 at pp. 1-2; ASAP et al.,
No. 7 at p. 1)
In this final determination, DOE is classifying portable electric
spas as a covered product.
A. Scope of Coverage
As stated previously in this document, portable electric spas are
factory-built hot tubs or spas that are intended for the immersion of
people in heated, temperature-controlled water that is circulated in a
closed system. A wide range of portable electric spa products are
available on the market, including standard spas, exercise spas,
combination spas, and inflatable spas.
In the February 2022 NOPD, DOE examined existing classifications of
portable electric spas to inform its proposed definition. PHTA
publishes a standard method of test, certified by American National
Standards Institute (``ANSI''), for measuring the performance of
portable electric spas, titled ANSI/Association of Pool and Spa
Professionals (``APSP'')/International Code Council (``ICC'') 14 2019,
American National Standard for Portable Electric Spa Energy Efficiency
(``ANSI/APSP/ICC-14 2019'' or ``APSP-
[[Page 54125]]
14'').\7\ Section 3 of ANSI/APSP/ICC-14 2019 defines ``Portable
Electric Spa'' as ``a factory built electric spa or hot tub, supplied
with equipment for heating and circulating water at the time of sale or
sold separately for subsequent attachment'' and includes additional
definitions for ``spa'' and various categories of portable electric
spa. The CEC regulations define ``portable electric spa'' and most of
the spa categories consistently with ANSI/APSP/ICC-14 2019,\8\ though
the CEC does not define the term ``spa''.
---------------------------------------------------------------------------
\7\ ANSI/APSP/ICC-14 2019 is available at: webstore.ansi.org/standards/apsp/ansiapspicc142019.
\8\ See section 1602(g)(2) of Article 4 of Division 2 of Title
20 of the California Code of Regulations. There is some variation in
the definition of exercise spa as compared to ANSI/APSP/ICC-14 2019.
---------------------------------------------------------------------------
For the purpose of the analysis described in the February 2022
NOPD, DOE evaluated portable electric spas as factory-built electric
spas or hot tubs, supplied with equipment for heating and circulating
water at the time of sale or sold separately for subsequent attachment.
DOE proposed to adopt this definition, consistent with the term as
defined by ANSI/APSP/ICC-14 2019 and the CEC, to inform stakeholders
while DOE continued its analysis. 87 FR 8745, 8747. DOE noted that this
proposed definition would exclude units that are site-assembled, such
as spas that are permanently installed in the ground or attached to a
pool, and spas sold with methods of water heating other than
electricity, such as propane or natural gas spa heaters or wood-fired
hot tubs. Id. DOE requested comment on the proposed definition and
scope of coverage of portable electric spas. Id.
In response to the February 2022 NOPD, PHTA/IHTA expressed support
for the proposed definition and scope but noted that it is important to
clarify that portable electric spas are not permanently installed in
the ground or attached to a pool. PHTA/IHTA suggested that DOE consider
defining other types of ``spa'' products and indicating that they are
excluded from coverage. For this purpose, PHTA/IHTA stated that DOE
should consider utilizing definitions commonly used by industry and
state and local governments that can be found in widely adopted ANSI
standards and codes, such as the International Swimming Pool & Spa Code
co-developed by the ICC and PHTA. PHTA/IHTA also encouraged DOE to
utilize the APSP-14 definition for inflatable spa. (PHTA/IHTA, No. 3 at
pp. 3-4)
The CEC stated that, because California, along with other states,
has adopted APSP-14 in its entirety, the CEC encouraged DOE to consider
matching the scope, definitions, test procedure, and label design
specified in APSP-14 to maintain consistency among states and spa
manufacturers. (CEC No. 4, at p. 5) The CA IOUs supported the proposed
definition adopting APSP-14 nomenclature and the distinction between
self-contained \9\ versus non-self-contained units, as well as the
proposed scope. (CA IOUs, No. 5 at p. 3) ASAP et al. also supported the
proposed scope of coverage, which they understand would include
standard spas, exercise spas, combination spas, and inflatable spas as
defined in ANSI/APSP/ICC-14-2019. (ASAP et al., No. 7 at p. 1)
---------------------------------------------------------------------------
\9\ APSP-14 2019 defines ``self-contained spa'' as ``A factory-
built spa in which all control, water heating and water circulating
equipment is an integral part of the product. Self-contained spas
may be permanently wired or cord connected.''
---------------------------------------------------------------------------
The purpose of the proposed definition, which DOE is adopting in
this final determination, is to identify the scope of the covered
product (i.e., portable electric spas). In identifying whether a
product is a consumer product for consideration as a covered product,
DOE evaluates whether such product is of a type which in operation
consumes, or is designed to consume, energy; and, to any significant
extent, is distributed in commerce for personal use or consumption by
individuals; without regard to whether such article of such type is in
fact distributed in commerce for personal use or consumption by an
individual. (42 U.S.C. 6291(1))
The portable electric spa definition DOE is adopting in this final
determination establishes the coverage of ``portable electric spas''
for the purpose of Part A of EPCA. The scope of coverage is separate
from a determination of the applicability of test procedures or energy
conservation standards, should DOE establish test procedures and energy
conservation standards. The scope of any test procedure or energy
conservation standards would be considered in these respective
rulemakings to the extent DOE pursues such rulemakings. As such, in
this final determination, DOE is classifying ``portable electric spas''
as a covered product and the definition establishes the scope of
coverage for that purpose.
In summary, based on the preceding discussion, DOE is defining
``portable electric spa'' in 10 CFR 430.2 as a factory-built electric
spa or hot tub, supplied with equipment for heating and circulating
water at the time of sale or sold separately for subsequent attachment.
This definition is consistent with the term as defined by ANSI/APSP/
ICC-14 2019 and the CEC. DOE notes that this definition--by using the
term ``factory-built''--excludes units that are site-assembled, such as
portable electric spas that are permanently installed in the ground or
attached to a pool, and spas sold with methods of water heating other
than electricity, such as propane or natural gas spa heaters or wood-
fired hot tubs.
B. Evaluation of Portable Electric Spas as a Covered Product Subject to
Energy Conservation Standards
The following sections describe DOE's evaluation of whether
portable electric spas fulfill the criteria for being added as a
covered product pursuant to 42 U.S.C. 6292(b)(1). As stated, DOE may
classify a consumer product as a covered product if:
(1) Classifying products of such type as covered products is
necessary or appropriate to carry out the purposes of EPCA; and
(2) The average annual per-household energy use by products of such
type is likely to exceed 100 kWh (or its Btu equivalent) per year. (42
U.S.C. 6292(b)(1))
1. Coverage Necessary or Appropriate To Carry Out Purposes of EPCA
DOE has determined that coverage of portable electric spas is both
necessary and appropriate to carry out the purposes of EPCA, which
include:
(1) To conserve energy supplies through energy conservation
programs, and, where necessary, the regulation of certain energy uses;
and
(2) To provide for improved energy efficiency of motor vehicles,
major appliances, and certain other consumer products. (42 U.S.C.
6201(4) and (5))
In the February 2022 NOPD, DOE cited data from the DOE Energy
Information Administration's Residential Energy Consumption Survey
(``RECS''), which indicated an installed base of 8.4 million spas in
the U.S. in 2015.\10\ 87 FR 8745, 8747. DOE also obtained data from
PKData and based on that data, DOE estimated that in 2019, the existing
stock of residential hot tubs (as separate from the stock of spas in
residential pools) was approximately 5.5 million, with approximately 95
percent of these being electric spas.\11\ Id. Based
[[Page 54126]]
on these same data, DOE also estimated that approximately 230,000
electric spas were shipped in 2019. Id. DOE requested data and
information regarding current annual shipments of portable electric
spas and the installed base of portable electric spas, specifying the
scope of products included in any such estimates (e.g., standard,
exercise, combination, inflatable, etc.). Id.
---------------------------------------------------------------------------
\10\ Available at www.eia.gov/consumption/residential/data/2015.
DOE notes that this number likely includes spas that do not meet the
proposed definition of portable electric spa.
\11\ P.K. Data Inc. 2020 Pool Heaters Market Data: Custom
Compilation for Lawrence Berkeley National Laboratory. 2020.
Alpharetta, GA. (Last accessed July 1, 2021.) www.pkdata.com/reports-store.html#/.
---------------------------------------------------------------------------
PHTA/IHTA agreed with the existing data from RECS and PKData and
stated that industry also relies on those data sources. (PHTA/IHTA, No.
3 at p. 4)
In the February 2022 NOPD, DOE noted that the CEC published a final
staff report analyzing efficiency standards and marking for spas,\12\
which indicated that technologies exist, and are already available in
the market, to reduce the energy consumption of portable electric spas.
DOE requested comment on the availability of technologies for improving
energy efficiency of portable electric spas. 87 FR 8745, 8747.
---------------------------------------------------------------------------
\12\ Final Staff Report, Analysis of Efficiency Standards and
Marking for Spas, 2018 Appliance Efficiency Rulemaking for Spas
Docket Number 18-AAER-02 TN 222413. Available online at
efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.
---------------------------------------------------------------------------
PHTA/IHTA commented that the industry has been working on these
technologies and improving them since 2008 and the technologies
employed under the 2019 edition of ANSI/APSP/ICC-14 represent what is
currently available and feasible. (PHTA/IHTA, No. 3 at p. 6) The CEC
estimated potential technology options in the existing and future
portable electric spa market. (CEC No. 4, at p. 5) And ASAP et al.
noted that heat pump technology offers the potential to substantially
reduce portable electric spa energy use. (ASAP et al., No. 7 at p. 2)
Commenters also agreed generally that coverage of portable electric
spas is necessary or appropriate to carry out the purposes of EPCA.
PHTA/IHTA stated that classifying portable electric spas as a covered
product is necessary and appropriate to carry out the purposes of EPCA.
(PHTA/IHTA, No. 3 at pp. 1, 6) NYSERDA agreed with DOE's proposed
determination that coverage is appropriate to carry out the purposes of
EPCA. (NYSERDA, No. 6 at p. 2)
DOE has determined that the coverage of portable electric spas is
both necessary and appropriate to carry out the purposes of EPCA. As
indicated by the shipments data, annual sales of portable electric spas
are significant within the consumer products market. Portable electric
spas consume energy generated from limited energy supplies and
regulating their energy efficiency would likely help conserve these
limited energy supplies. And as indicated by commenters and the CEC
staff report, technologies exist for improving energy efficiency of
portable electric spas.
As a coverage determination is a prerequisite to establishing
standards for these products, classifying portable electric spas as a
covered product is necessary and appropriate to carry out EPCA's
purposes to: conserve energy supplies through energy conservation
programs, and provide for improved energy efficiency of major
appliances and certain other consumer products. (42 U.S.C. 6201(4) and
(5))
2. Average Household Energy Use
In the February 2022 NOPD, DOE estimated the average household
energy use for portable electric spas, in households that use the
product, using power consumption data reported in the CEC database
(``MAEDbS'').\13\ 87 FR 8745, 8747. MAEDbS is the only publicly
available source that provides energy consumption data for portable
electric spas of which DOE is aware. MAEDbS certification requires that
standby power is measured according to ANSI/APSP/ICC-14 2019. For each
model, MAEDbS lists the standby \14\ power in watts (``W''), along with
other relevant capacity and performance metrics. For portable electric
spas measured according to the test procedure in ANSI/APSP/ICC-14 2019,
standby operation is the predominant mode of spa operation and includes
power use to maintain the set temperature and to circulate and filter
the water. The CEC estimated that standby operation represents 75
percent of the energy consumed by a portable electric spa, with the
remainder being startup mode, when the spa is heating up to its
operating temperature, and active mode,\15\ when the spa's water jets
are operating.\16\ Id. at 87 FR 8748. The CEC reported a duty cycle
between 5,040 hours per year for inflatable spas (which are intended
for seasonal use) and 8,760 hours per year for standard, exercise, and
combination spas, during the process of updating the standards for
California in 2018.\17\ Id.
---------------------------------------------------------------------------
\13\ CEC Modernized Appliance Efficiency Database System.
Accessed December 17, 2021. Available online at
cacertappliances.energy.ca.gov.
\14\ DOE notes that use of the term ``standby'' and ``standby
mode'' in ANSI/APSP/ICC-14 2019 differs from EPCA's definition of
``standby mode.'' See 42 U.S.C. 6295(gg)(1)(A)(iii).
\15\ DOE notes that use of the term ``active mode'' differs from
EPCA's definition of ``active mode.'' See 42 U.S.C.
6295(gg)(1)(A)(i).
\16\ Final Staff Report, Analysis of Efficiency Standards and
Marking for Spas, 2018 Appliance Efficiency Rulemaking for Spas
Docket Number 18-AAER-02 TN 222413. Available online at
efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.
\17\ Ibid.
---------------------------------------------------------------------------
Using average power consumption for a standard spa of 194 W (the
lowest average of the categories in MAEDbS) and 8,760 hours per year of
use, DOE estimated an average standby energy consumption of 1,699 kWh
per year for portable electric spas in the February 2022 NOPD. Id. DOE
noted that use of the minimum standby power found in MAEDbS (40 W) and
the estimated 5,040 hours per year of use for inflatable spas exceeds
200 kWh per year energy use. In addition, the rest of the country may
have shipments of portable electric spas that exceed California's and
other states' maximum power consumption standards. Id. at 87 FR 8749.
In a presentation sent to DOE in December 2021,\18\ PHTA/IHTA, CA
IOUs, and ASAP also provided an estimate of average energy use based on
RECS. They estimated that portable electric spas consume 5.755 billion
kWh/year in the U.S. and that 3.673 million households in the U.S.
operate portable electric spas regularly. These estimates result in
average energy consumption of 1,567 kWh per year per household, which
is similar to DOE's estimate of 1,699 kWh per year.
---------------------------------------------------------------------------
\18\ www.regulations.gov/document/EERE-2022-BT-DET-0006-0001.
---------------------------------------------------------------------------
For these reasons, although there may be variation due to climate
or spa size that might impact annual per-household energy use as
compared to DOE's estimate of 1,699 kWh/year (either higher or lower),
in the February 2022 NOPD, DOE tentatively determined that the average
annual per-household energy use for portable electric spas is very
likely to exceed 100 kWh per year, satisfying the provisions of 42
U.S.C. 6292(b)(1). Id. DOE requested data and information on: (1) the
national representativeness of the spa volume bins in Table IV.I of the
February 2022 NOPD; (2) the range of standby power consumption of spas
in non-regulated markets; (3) the standby power consumption at the
different volumes for all types of portable electric spas; and (4) the
active power consumption at the different volumes for all types of
portable electric spas. Id.
In response to the February 2022 NOPD, DOE received comments
regarding the average household energy use of portable electric spas.
PHTA/IHTA stated that Table IV.I in the February 2022 NOPD (which
presented reported power consumption by spa category and volume) is an
accurate
[[Page 54127]]
assessment of what is in the CEC database but noted the products in the
CEC database represent standby power. PHTA/IHTA did not have specific
data and information on the range of standby power consumption of spas
in non-regulated markets or active power consumption at different
volumes for all types of portable electric spas. But PHTA/IHTA agreed
that it is extremely likely that the average annual per-household
energy use by portable electric spas exceeds 100 kWh per year. (PHTA/
IHTA, No. 3 at pp. 5-6)
ASAP et al. stated that DOE's estimate of average standby power
consumption is likely a conservative estimate of energy use since it
does not include power consumed in startup mode or active mode, and it
also does not account for models sold in non-regulated markets that may
not meet the CEC standards. (ASAP et al., No. 7 at p. 1) The CA IOUs
noted that the analysis conducted by PHTA, CA IOUs, and ASAP,\19\ which
indicated an average unit energy consumption of portable electric spas
of 1,567 kWh/year, significantly exceeds the EPCA threshold of 100 kWh/
year required to designate a product as a covered product. (CA IOUs,
No. 5 at p. 1) NYSERDA also agreed that the average annual household
energy consumption is well above 100 kWh. (NYSERDA, No. 6 at p. 2)
---------------------------------------------------------------------------
\19\ Ibid.
---------------------------------------------------------------------------
As supported by the analysis presented in the February 2022 NOPD
and the preceding comments, DOE makes a final determination that the
average annual per-household energy use for portable electric spas is
likely to exceed 100 kWh/year, satisfying the provisions of 42 U.S.C.
6292(b)(1).
IV. Final Determination
Based on the foregoing discussion, DOE concludes that including
portable electric spas, as defined in this final determination, as
covered products is necessary and appropriate to carry out the purposes
of EPCA, and the average annual per-household energy use by products of
such type is likely to exceed 100 kWh/yr. Based on the information
discussed in section III of this document, DOE is classifying portable
electric spas as a covered product.
This final determination does not establish test procedures or
energy conservation standards for portable electric spas. DOE will
address test procedures and energy conservation standards through its
normal rulemaking process, should DOE pursue such rulemakings.
V. Procedural Issues and Regulatory Review
A. Review Under Executive Order 12866 and 13563
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving
Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011),
requires agencies, to the extent permitted by law, to: (1) propose or
adopt a regulation only upon a reasoned determination that its benefits
justify its costs (recognizing that some benefits and costs are
difficult to quantify); (2) tailor regulations to impose the least
burden on society, consistent with obtaining regulatory objectives,
taking into account, among other things, and to the extent practicable,
the costs of cumulative regulations; (3) select, in choosing among
alternative regulatory approaches, those approaches that maximize net
benefits (including potential economic, environmental, public health
and safety, and other advantages; distributive impacts; and equity);
(4) to the extent feasible, specify performance objectives, rather than
specifying the behavior or manner of compliance that regulated entities
must adopt; and (5) identify and assess available alternatives to
direct regulation, including providing economic incentives to encourage
the desired behavior, such as user fees or marketable permits, or
providing information upon which choices can be made by the public. DOE
emphasizes as well that E.O. 13563 requires agencies to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible. In its guidance, the
Office of Information and Regulatory Affairs (``OIRA'') in the Office
of Management and Budget (``OMB'') has emphasized that such techniques
may include identifying changing future compliance costs that might
result from technological innovation or anticipated behavioral changes.
For the reasons stated in the preamble, this final regulatory action is
consistent with these principles.
Section 6(a) of E.O. 12866 also requires agencies to submit
``significant regulatory actions'' to OIRA for review. OIRA has
determined that this regulatory action does not constitute a
``significant regulatory action'' under section 3(f) of E.O. 12866.
Accordingly, this action was not submitted to OIRA for review under
E.O. 12866.
B. 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 E.O. 13272,
``Proper Consideration of Small Entities in Agency Rulemaking,'' 67 FR
53461 (Aug. 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 (www.energy.gov/gc/office-general-counsel).
DOE reviewed this determination under the provisions of the
Regulatory Flexibility Act and the policies and procedures published on
February 19, 2003. This determination sets no standards; it only
positively determines that future standards may be warranted and should
be explored in any future energy conservation standards and test
procedure rulemakings. Economic impacts on small entities would be
considered in the context of such rulemakings. On the basis of the
foregoing, DOE certifies that the coverage determination would have no
significant economic impact on a substantial number of small entities.
Accordingly, DOE has not prepared a FRFA for this determination. DOE
has transmitted this certification and supporting statement of factual
basis to the Chief Counsel for Advocacy of the Small Business
Administration for review under 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act
This determination, which concludes that portable electric spas
meet the criteria for a covered product for which the Secretary may
prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o)
and (p), imposes no new information or record-keeping requirements.
Accordingly, the OMB clearance is not required under the Paperwork
Reduction Act. (44 U.S.C. 3501 et seq.)
[[Page 54128]]
D. Review Under the National Environmental Policy Act of 1969
Pursuant to the National Environmental Policy Act of 1969
(``NEPA''), DOE has analyzed this final determination in accordance
with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021).
DOE analyzed this regulation in accordance with the National
Environmental Policy Act (``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 A6. This rulemaking qualifies for categorical exclusion A6
because it is a strictly procedural rulemaking and otherwise meets the
requirements for application of a categorical exclusion. See 10 CFR
1021.410. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
E. Review Under Executive Order 13132
E.O. 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 it will follow in the development of such
regulations. 65 FR 13735. DOE has examined this determination and
concludes that it would 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
product that is the subject of this determination. 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 E.O. 13132.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 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 E.O. 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
E.O. 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 determination meets the relevant
standards of E.O. 12988.
G. 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 UMRA 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 requirement 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
www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
DOE examined this determination according to UMRA and its statement
of policy and determined that the determination does not contain a
Federal intergovernmental mandate, nor is it expected to require
expenditures of $100 million or more in any one year by State, local,
and Tribal governments, in the aggregate, or by the private sector. As
a result, the analytical requirements of UMRA do not apply.
H. Review Under the Treasury and General Government Appropriations Act
of 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any rule that may affect family
well-being. This determination would 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.
I. Review Under Executive Order 12630
Pursuant to E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (Mar. 15,
1988), DOE has determined that this determination would not result in
any takings that might require compensation under the Fifth Amendment
to the U.S. Constitution.
J. Review Under the Treasury and General Government Appropriations Act
of 2001
Section 515 of the Treasury and General Government Appropriation
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). Pursuant to OMB Memorandum M-19-15, Improving
Implementation of the Information Quality Act (April 24,
[[Page 54129]]
2019), DOE published updated guidelines which are available at
www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has
reviewed this determination under the OMB and DOE guidelines and has
concluded that it is consistent with applicable policies in those
guidelines.
K. Review Under Executive Order 13211
E.O. 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 a
Statement of Energy Effects for any 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 E.O. 12866,
or any successor Executive 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 should the proposal be implemented, and of
reasonable alternatives to the action and their expected benefits on
energy supply, distribution, and use.
This determination, which does not amend or establish energy
conservation standards for portable electric spas, is not a significant
regulatory action under E. O. 12866. Moreover, it would not have a
significant adverse effect on the supply, distribution, or use of
energy, nor has it been designated as such by the Administrator at
OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.
L. Information Quality
On December 16, 2004, OMB, in consultation with the Office of
Science and Technology Policy (``OSTP''), issued its Final Information
Quality Bulletin for Peer Review (``the Bulletin''). 70 FR 2664 (Jan.
14, 2005). The Bulletin establishes that certain scientific information
shall be peer reviewed by qualified specialists before it is
disseminated by the Federal Government, including influential
scientific information related to agency regulatory actions. The
purpose of the bulletin is to enhance the quality and credibility of
the Government's scientific information. Under the Bulletin, the energy
conservation standards rulemaking analyses are ``influential scientific
information,'' which the Bulletin defines as ``scientific information
the agency reasonably can determine will have, or does have, a clear
and substantial impact on important public policies or private sector
decisions.'' Id. at 70 FR 2667.
In response to OMB's Bulletin, DOE conducted formal peer reviews of
the energy conservation standards development process and the analyses
that are typically used and has prepared a Peer Review report
pertaining to the energy conservation standards rulemaking
analyses.\20\ Generation of this report involved a rigorous, formal,
and documented evaluation using objective criteria and qualified and
independent reviewers to make a judgment as to the technical/
scientific/business merit, the actual or anticipated results, and the
productivity and management effectiveness of programs and/or projects.
Because available data, models, and technological understanding have
changed since 2007, DOE has engaged with the National Academy of
Sciences to review DOE's analytical methodologies to ascertain whether
modifications are needed to improve the Department's analyses. DOE is
in the process of evaluating the resulting report.\21\
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\20\ ``Energy Conservation Standards Rulemaking Peer Review
Report.'' 2007. Available at energy.gov/eere/buildings/downloads/energy-conservation-standards-rulemaking-peer-review-report-0.
\21\ The report is available at www.nationalacademies.org/our-work/review-of-methods-for-setting-building-and-equipment-performance-standards.
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M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this final determination prior to its effective date.
The report will state that it has been determined that the final
determination is not a ``major rule'' as defined by 5 U.S.C. 804(2).
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this final
determination.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Intergovernmental relations,
Reporting and recordkeeping requirements, Small businesses.
Signing Authority
This document of the Department of Energy was signed on August 26,
2022, by Dr. Geraldine L. Richmond, Undersecretary of Science and
Innovation, 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 August 26, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE amends part 430 of
chapter II of title 10, Code of Federal Regulations as set forth below:
PART 430--ENERGY CONSERVATION PROGRAM 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 430.2 is amended by:
0
a. Revising the definition of ``Covered product''; and
0
b. Adding in alphabetical order the definition of ``Portable electric
spa''.
The addition and revision read as follows:
Sec. 430.2 Definitions.
* * * * *
Covered product means a consumer product--
(1) Of a type specified in section 322 of the Act; or
(2) That is an air cleaner, battery charger, ceiling fan, ceiling
fan light kit, dehumidifier, external power supply, medium base compact
fluorescent lamp, miscellaneous refrigeration product, portable air
conditioner, portable electric spa, or torchiere.
* * * * *
Portable electric spa means a factory-built electric spa or hot
tub, supplied with equipment for heating and circulating water at the
time of sale or sold separately for subsequent attachment.
* * * * *
[FR Doc. 2022-18862 Filed 9-1-22; 8:45 am]
BILLING CODE 6450-01-P
