[Federal Register Volume 66, Number 218 (Friday, November 9, 2001)]
[Rules and Regulations]
[Pages 56604-56607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28215]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 431

[Docket No. EE-RM-96-400]
RIN 1904-AB11


Energy Efficiency Program for Certain Commercial and Industrial 
Equipment: Extension of Time for Electric Motor Manufacturers To 
Certify Compliance With Energy Efficiency Standards

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

ACTION: Notice of final rulemaking.

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SUMMARY: This procedural rule amends the compliance certification 
section of subpart G, Certification and Enforcement, of Title 10 Code 
of Federal Regulations Part 431, by revising the deadline date from 
November 5, 2001 to June 7, 2002, for all electric motor manufacturers 
to certify compliance to the Department of Energy that their motors 
meet the applicable energy efficiency standards.

DATES: This rule is effective November 9, 2001.

FOR FURTHER INFORMATION CONTACT: James Raba, U.S. Department of Energy, 
Office of Energy Efficiency and Renewable Energy, Mail Station EE-41, 
1000 Independence Avenue, SW., Washington, DC 20585-0121, telephone 
(202) 586-8654, telefax (202) 586-4617, or: [email protected].

    Eugene Margolis, Esq., U.S. Department of Energy, Office of General 
Counsel, Mail Station GC-72, 1000 Independence Avenue, SW., Washington, 
DC 20585-0103, (202) 586-9526, telefax (202) 586-4116, or: 
[email protected].

SUPPLEMENTARY INFORMATION:

Introduction

    Section 345(c) of the Energy Policy and Conservation Act of 1975 
(EPCA) requires ``manufacturers to certify, through an independent 
testing or certification program nationally recognized in the United 
States, that such motor meets the applicable [nominal full load 
efficiency standard]'' (42 U.S.C. 6316(c)). The Department of Energy 
(Department) construes the statutory language to provide manufacturers 
with two equivalent ways to fulfill the certification requirement: (1) 
manufacturers may certify, through an independent testing program 
nationally recognized in the United States, that such motor meets the 
standards; or (2) manufacturers may certify, through an independent 
certification program nationally recognized in the United States that 
such motor meets the standards. The Department is of the view that 
section 345(c) does not require preference for one program over the 
other.
    Section 431.24(a)(5) of 10 CFR Part 431, sets forth procedures by 
which a manufacturer may have a certification program or an accredited 
laboratory, which the Department has classified as nationally 
recognized, certify the energy efficiency of a manufacturer's electric 
motors. Section 431.123(a) of 10 CFR Part 431 states that no electric 
motor ``subject to an energy efficiency standard set forth in subpart C 
of this part'' may be distributed in commerce unless it is covered by a 
Compliance Certification, and that the Compliance Certification must be 
submitted to the Department not later than November 5, 2001.

[[Page 56605]]

Background

    The Department estimates that there are 41 manufacturers that 
manufacture motors covered by the statute. Thus far, it appears that 
half of the manufacturers have elected to certify the efficiency of 
their electric motors through an independent testing laboratory, and 
half through a certification program. Also, section III.F.2. of the 
preamble to the Proposed Rule for Electric Motors, 61 FR 60455 
(November 27, 1996), summarizes testimony and written statements from 
manufacturers and the National Electrical Manufacturers Association 
which speak of different basic models of motors numbering in the 
thousands that are being manufactured and could potentially be required 
to undergo testing for efficiency.
    As of the publication date of this final rule, there continues to 
be insufficient testing capacity. According to the National Institute 
of Standards and Technology, National Voluntary Laboratory 
Accreditation Program (NVLAP) ``2001 Directory,'' dated March 2001, 
there are 11 testing laboratories that meet the requirements of section 
431.24(a)(5) of 10 CFR Part 431 and could be available to test motors 
for the purposes of section 345(c) of EPCA. Of those testing 
laboratories, two are not in any way affiliated with a motor 
manufacturer; and of those two, only one is located in the United 
States. Thus far, a number of motor manufacturers have elected to base 
the certification of their motors' energy efficiency on testing 
conducted in a NVLAP accredited laboratory. Certain other motor 
manufacturers have, in ``good faith,'' elected to base their compliance 
on a certification program, and have either had their motors tested in 
advance or have committed resources in anticipation of certification 
programs becoming recognized by the Department of Energy. As of today's 
Federal Register notice of final rulemaking, there are no certification 
programs nationally recognized for the purposes of section 345(c) of 
EPCA. Therefore, the Department believes it will be impossible for many 
manufacturers to make the choice allowed by EPCA to test and certify 
their motors for energy efficiency before November 5, 2001.

Discussion

    Presently, two certification programs have, under the provisions of 
section 431.28 of 10 CFR part 431, petitioned the Department to be 
classified as nationally recognized in the United States for the 
purposes of section 345(c) of EPCA: CSA International, 65 FR 24429 
(April 26, 2000), and Underwriters Laboratories Inc., 66 FR 50355 
(October 3, 2001). The Department believes the only way to make the 
statutory testing and certifying capacity available would be to delay 
enforcement so as to enable the Department to conclude the recognition 
process required under section 431.28 of 10 CFR Part 431, and 
thereafter allow manufacturers sufficient time to certify the 
efficiency of their motors through either an independent testing or 
certification program. The recognition process set forth in section 
431.28(a)-(f) of 10 CFR Part 431 consists, in sum, of: (1) a 
certification organization filing a petition with the Department, (2) 
public notice and solicitation of comments, (3) allowance for a 
responsive statement by the petitioner, (4) public announcement of an 
interim determination by the Department and solicitation of comments, 
and (5) public announcement of a final determination. In addition, the 
Department must analyze the information presented in the petition, 
prepare and issue a Federal Register notice to solicit public comments, 
address those comments received, prepare and issue a second Federal 
Register notice that announces an interim determination and further 
solicits public comments, address those comments, and thereafter, 
prepare and issue a Federal Register notice that announces a final 
determination. Also, the Department would conduct an independent 
investigation to gather additional information relevant to the 
petition. Such a process could take up to 12 months. The Department 
believes that its investigation and determination process should be 
stringent because a certification program underlies the compliance 
determination for many motors. In the case of the recognition processes 
already underway both for CSA International and Underwriters 
Laboratories Inc., the Department would need up to 15 weeks in order to 
reach its final determinations. Following those determinations, 
manufacturers would need up to 16 weeks to complete the efficiency 
certification process for their motors. Therefore, the Department has 
decided to amend the deadline in section 431.123(a) to give 
manufacturers additional time to certify compliance of their motors, 
either by choosing a testing laboratory accredited by NVLAP or by any 
nationally recognized certification program that DOE may approve.

Conclusion

    The Department's goal is to have in place a certification 
capability for the industry that would provide reasonable assurance to 
consumers that the motors they purchase are of the efficiency specified 
by the manufacturer and are in compliance with governing standards. The 
Department believes that the integrity of the certification process 
must be maintained, while at the same time the fair operation of the 
motor market must be supported. Accordingly, the Department today 
amends section 431.123(a) of 10 CFR part 431, by revising the deadline 
date for manufacturers to certify compliance to the Department of 
Energy, from November 5, 2001 to June 7, 2002.

Procedural Issues and Regulatory Review

A. Review Under the National Environmental Policy Act

    Review under the National Environmental Policy Act was addressed in 
the notice of proposed rulemaking (NOPR) , 61 FR 60460 (November 27, 
1996), and in the final rule which established 10 CFR part 431, 64 FR 
54139 (October 5, 1999). The Department concluded that neither an 
environmental assessment nor an environmental impact statement is 
needed. The same conclusion applies to today's final rule.

B. Review Under Executive Order 12866, ``Regulatory Planning and 
Review''

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735). Accordingly, today's 
action was not subject to review under the Executive Order by the 
Office of Information and Regulatory Affairs in the Office of 
Management and Budget.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., requires 
that a federal agency prepare a regulatory flexibility analysis for any 
rule for which the agency is required to publish a general notice of 
proposed rulemaking. Today's rule is a rule of agency procedure which 
is exempt from the APA's notice and comment requirements. Therefore, a 
regulatory flexibility analysis has not been prepared.

D. Review Under Executive Order 13132, ``Federalism''

    Executive Order 13132, ``Federalism'' (64 FR 43255) requires 
agencies to develop an accountable process to ensure meaningful and 
timely input by State and local officials in the development of 
regulatory policies that have ``federalism implications.'' Policies

[[Page 56606]]

that have federalism implications are defined in the Executive Order to 
include regulations that have ``substantial direct effects 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.'' 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 today's rule and determined that it does not 
have a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
No further action is required by the Executive Order.

E. Review Under Executive Order 12630, ``Governmental Actions and 
Interference With Constitutionally Protected Property Rights''

    The Department's review under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' was addressed in the NOPR, 61 FR at 60462, and in the final 
rule which established 10 CFR part 431, 64 FR at 54140. The Department 
determined that this regulation would not result in any takings which 
might require compensation under the Fifth Amendment to the United 
States Constitution. The same conclusion applies to today's final rule.

F. Review Under the Paperwork Reduction Act

    No new collection of information will be imposed by this 
rulemaking. Accordingly, no clearance by the Office of Management and 
Budget is required under the Paperwork Reduction Act (44 U.S.C. 3501, 
et seq.).

G. Review Under Executive Order 12988, ``Civil Justice Reform''

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3 of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729) imposes on Executive agencies the 
general duty to eliminate drafting errors and ambiguity; write 
regulations to minimize litigation; provide a clear legal standard for 
affected conduct rather than a general standard; and promote 
simplification and burden reduction. Section 3(c) of Executive Order 
12988 requires Executive agencies to review regulations in light of 
applicable standards in section 3(a) and section 3(b) to determine 
whether they are met. DOE has completed the required review and 
determined that, to the extent permitted by law, this final rule meets 
the relevant standards of Executive Order 12988.

H. Review Under Section 32 of the Federal Energy Administration Act

    Today's final rule does not incorporate commercial standards by 
reference. Therefore, section 32 of the Federal Energy Administration 
Act does not apply to today's final rule.

I. Review Under the Unfunded Mandates Reform Act

    The Department's review under the Unfunded Mandates Reform Act 
(UMRA) was addressed in the NOPR, 61 FR at 60463, and in the final rule 
which established 10 CFR part 431, 64 FR at 54141. The Department has 
determined that today's final rule does not include a Federal mandate 
that may result in estimated costs of $100 million or more to state, 
local or to tribal governments in the aggregate or to the private 
sector. Therefore, the same conclusion applies to today's final rule.

J. Review Under the Small Business Regulatory Enforcement Fairness Act

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of today's rule prior to its effective date. The report 
will state that it has been determined that the rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

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

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

L. Review Under Executive Order 13211, ``Actions Concerning Regulations 
That Significantly Affect Energy Supply, Distribution, or Use''

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' (66 FR 
28355, May 22, 2001) requires Federal agencies to prepare and submit to 
the Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
the promulgation of a final rule, and that: (1) Is a significant 
regulatory action under Executive Order 12866, or any successor order; 
and (2) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy; or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposed action be implemented, and of reasonable alternatives to the 
action and their expected benefits on energy supply, distribution, and 
use.
    Today's final rule would not have any adverse effects on the 
supply, distribution, or use of energy.

M. Review Under the Administrative Procedure Act

    In the Department's view, today's final rule is not subject to 
requirements for prior notice and opportunity for public comment 
because it is procedural in nature. In the alternative, to the extent 
that 5 U.S.C. 553(b) may apply to this rulemaking, the Department finds 
that is impracticable and contrary to the public interest to publish 
prior notice because the Department cannot enforce the existing 
regulatory deadline and cannot relieve regulated manufacturers of the 
threat of potential enforcement of the deadline before November 5, 
2001, without dispensing with prior notice.

List of Subjects in 10 CFR Part 431

    Administrative practice and procedure, Energy conservation, 
Reporting and recordkeeping requirements.

    Issued in Washington, DC, on November 6, 2001.
David K. Garman,
Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons set forth in the preamble, part 431 of chapter II 
of title 10, Code of Federal Regulations, is amended, as set forth 
below.

PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND 
INDUSTRIAL EQUIPMENT

    1. The authority citation for part 431 continues to read as 
follows:

    Authority: 42 U.S.C. 6311-6316.

[[Page 56607]]

Sec. 431.123  [Amended]

    2. In section 431.123, paragraph (a) is amended in the first 
sentence by removing the phrase ``Beginning 24 months after November 4, 
1999'' and adding in its place the phrase ``Beginning June 7, 2002.''
[FR Doc. 01-28215 Filed 11-8-01; 8:45 am]
BILLING CODE 6450-01-P