[Federal Register Volume 75, Number 53 (Friday, March 19, 2010)]
[Rules and Regulations]
[Pages 13217-13223]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6045]



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  Federal Register / Vol. 75, No. 53 / Friday, March 19, 2010 / Rules 
and Regulations  

[[Page 13217]]



DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket No. EE-RM-03-630]
RIN 1904-AB52


Energy Conservation Program for Consumer Products: Classifying 
Products as Covered Products

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

ACTION: Final rule.

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

SUMMARY: Under the Energy Policy and Conservation Act (EPCA), the U.S. 
Department of Energy (DOE) promulgates a rule to define the term 
``household'' and related terms. These definitions provide a basis for 
DOE to determine whether the household energy use of products not 
currently covered by EPCA meets the levels required for DOE to classify 
a product as a ``covered product'' under EPCA; such a classification 
would mean that DOE potentially could establish energy conservation 
requirements for the covered product. With the ``household'' definition 
in place, the Secretary may exercise statutory authority to classify as 
covered products additional qualifying consumer products beyond the 
products already specified in EPCA, and set test procedures and 
efficiency standards for them.

DATES: This rule is effective April 19, 2010.

FOR FURTHER INFORMATION CONTACT: Linda Graves, Esq., Project Manager, 
Coverage of Consumer Products, Docket No. EE-RM-03-630, U.S. Department 
of Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Program, EE-2J/Forrestal Building, 1000 Independence 
Avenue, SW., Washington, DC 20585-0121, (202) 586-1851, e-mail: 
[email protected], or Francine Pinto, Esq., U.S. Department of 
Energy, Office of General Counsel, GC-72/Forrestal Building, 1000 
Independence Avenue, SW., Washington, DC 20585-0121, (202) 586-9507, e-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction
    A. Authority
    B. Background
    C. Summary of the Final Rule
II. Discussion
    A. The Definitions
    B. Extent of Reliance on Definitions Used in DOE's Residential 
Energy Consumption Survey
    C. Conclusion
III. Public Participation
    A. Determination Not To Hold Public Meeting
    B. Public Comment Response
IV. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    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, 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under Executive Order 13211
    L. Congressional Notification
V. Approval of the Office of the Secretary

I. Introduction

A. Authority

    Part A of Title III of EPCA sets forth a variety of provisions that 
provide for the ``Energy Conservation Program for Consumer Products 
Other than Automobiles.'' (42 U.S.C. 6291-6309) The program consists 
essentially of four parts: Mandatory testing, labeling, energy 
conservation standards, and certification and enforcement procedures. 
DOE implements all parts of the program except for the labeling 
provisions, which are implemented by the Federal Trade Commission 
(FTC).
    EPCA lists specific types of consumer products that are subject to 
this program, referring to them as ``covered products,'' and authorizes 
DOE to add other consumer products to the program as covered products. 
(42 U.S.C. 6292(a) and (b)) DOE may add any type of consumer 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 annual per household energy use of such products in the households 
that use them is likely to average more than 100 kilowatt-hours. (42 
U.S.C. 6292(b)) For purposes of section 6292(b), ``[t]he term 
`household' shall be defined under rules of the Secretary [of 
Energy].'' (42 U.S.C. 6292(b)(2)(C)) This notice promulgates a rule 
that amends Title 10 of the Code of Federal Regulations (10 CFR) 430.2 
to define ``household,'' as well as four related terms, three of which 
are used in defining ``household.''
    DOE may prescribe test procedures for any product it classifies as 
a ``covered product.'' (42 U.S.C. 6293(b)(1)(B)) If DOE prescribes such 
test procedures, the FTC may also prescribe a labeling rule under EPCA 
for the product if it determines that labeling will assist purchasers 
in making purchasing decisions and is economically and technically 
feasible. (42 U.S.C. 6294(a)(3)) Finally, DOE may prescribe energy 
conservation standards for a type of consumer product it classifies as 
covered if the product meets certain additional criteria, such as 
``average per household energy use within the United States'' in excess 
of 150 kilowatt-hours, and ``aggregate household energy use'' in excess 
of 4.2 billion kilowatt-hours, for any prior 12-month period. (42 
U.S.C. 6295(l)(1))
    With the household definition promulgated in this final rule, the 
Secretary may henceforth exercise statutory authority (1) to identify 
as covered products additional qualifying consumer products beyond the 
products already specified in EPCA, and then potentially (2) to set 
test procedures and efficiency standards for the newly covered consumer 
products.

B. Background

    Prior to 2006, DOE annually prepared an analysis of pending and 
prospective rulemakings under its energy conservation program for 
consumer products and its companion program for commercial and 
industrial equipment under Parts A and A-1 of Title III of EPCA. DOE 
used this analysis to develop priorities and propose schedules for all 
rulemakings under these programs. In its priority-setting activities 
beginning in fiscal year 2003, DOE discussed possible expansion of

[[Page 13218]]

the programs to include additional consumer products and commercial and 
industrial equipment. However, with the passage of the Energy Policy 
Act of 2005 (EPACT 2005), Public Law 109-58, several additional 
products that DOE had been considering for coverage (e.g., ceiling fans 
and torchieres) became covered products with prescribed standards. The 
Energy Independence and Security Act of 2007 (EISA 2007), Public Law 
110-140, prescribed standards for several consumer products and types 
of commercial and industrial equipment, and amended the schedule for 
DOE to update several standards.
    Since the passage of EPACT 2005 and EISA 2007, as well as issuance 
of the Consent Decree for the consolidated cases of New York v. Bodman, 
No. 05 Civ. 7807 (S.D.N.Y. filed Sept. 7, 2005) and Natural Resources 
Defense Council v. Bodman, No. 05 Civ. 7808 (S.D.N.Y. filed Sept. 7, 
2005), DOE has re-assessed its rulemaking procedures and scheduling 
decisions. DOE held a public meeting November 15, 2005, followed by a 
30-day public comment period, to obtain public input. After considering 
the public comments, DOE released a five-year plan that described how 
DOE would address the appliance standards rulemaking backlog and meet 
all of the statutory requirements established in EPCA, as amended, and 
EPACT 2005. The plan is contained in the report to Congress, which was 
released January 31, 2006. DOE has updated that plan in response to 
EISA 2007 and the Consent Decree, and an updated version of the plan is 
posted on the DOE Web page at: http://www1.eere.energy.gov/buildings/appliance_standards/schedule_setting.html. The plan focuses on how 
DOE will complete rulemakings currently in process, catch up on a 
backlog of overdue rulemakings, and meet all rulemaking requirements 
contained in EPACT 2005 and EISA 2007 on time. The plan also addresses 
rulemaking deadlines set by the Consent Decree. In a memorandum for the 
Secretary of Energy, dated February 5, 2009 (74 FR 6537, Feb. 9, 2009), 
the President requested that DOE expeditiously finalize the rulemakings 
required by EPACT 2005, EISA 2007, and the Consent Decree. Given recent 
progress on expeditiously finalizing rulemakings, DOE now contemplates 
expanding the program to cover additional consumer products or 
commercial equipment. DOE is proceeding with this final rule to fill in 
a gap in DOE regulations so the Secretary can exercise statutory 
authority (as scheduling, priorities, and available resources permit) 
to expand standards coverage to appropriate products. Particularly, as 
energy efficient technologies advance in the future, the Secretary may 
exercise DOE's authority to consider whether any other products should 
be classified as covered products.
    As indicated above, a significant element of the required 
assessment for each of these products is whether its annual ``per-
household'' energy use is likely to exceed 100 kilowatt-hours. DOE can 
classify a product as covered only if it determines that the product 
meets this criterion. To address the criterion, DOE needed to define 
the term ``household.'' DOE may now apply the definition to any future 
evaluations of whether DOE can classify other consumer products as 
covered products. In addition, DOE may use the definition as a basis 
for determining whether a product meets the per-household and 
aggregate-household energy-use criteria for setting energy conservation 
standards for a product DOE classifies as covered. (42 U.S.C. 6295(l))

C. Summary of Final Rule

    The final rule defines ``household'' and three related terms. Taken 
together, these definitions in essence provide that a household is an 
individual or group that lives together in a housing unit that they 
occupy separately from any other group or individual. The content of 
these definitions is consistent with the legislative history of EPCA 
and with dictionary definitions of ``household,'' and is essentially 
the same as the relevant definitions that the DOE Energy Information 
Administration (EIA) uses as a basis for its periodic Residential 
Energy Consumption Surveys (RECS) of household energy use, which is 
discussed in more detail below in section II., C. The final rule also 
defines the term ``energy use of a type of consumer product which is 
used by households,'' which is virtually identical to a term used in 
section 322(b)(2)(A) of EPCA, 42 U.S.C. 6292(b)(2)(A), so as to make 
clear the locations at which household energy consumption can occur and 
that visitors to a household can contribute to such consumption.

II. Discussion

A. The Definitions

    As discussed above, DOE is authorized to add products to its 
program under EPCA, if the product is likely to exceed ``annual per-
household energy use'' of 100 kilowatt-hours pursuant to DOE's 
definition of ``household.'' (42 U.S.C. 6292(a) and (b))
    DOE is hereby providing a definition of ``household,'' and of the 
related terms ``housing unit,'' ``separate living quarters,'' and 
``group quarters.'' The definitions of these related terms serve to 
clarify the meaning of ``household.'' ``Housing unit'' is defined 
because the term is used in the definition of ``household,'' and 
``separate living quarters'' and ``group quarters'' are defined because 
they are used in the definition of ``housing unit.''
    The core of the final rule is the definition of ``household'' as an 
individual or group that resides in a particular housing unit. This 
conforms to the general dictionary definition of the term. The final 
rule, in turn, defines ``housing unit'' as ``a house, an apartment, a 
group of rooms, or a single room occupied as separate living quarters, 
but [that] does not include group quarters.'' ``Separate living 
quarters'' is defined as a place where people live in a separate space 
from others and to which they have access without going through the 
living space of others, and ``group quarters'' is defined as living 
quarters occupied by an institutional group of 10 or more unrelated 
persons. DOE has incorporated the substance of the RECS definitions of 
these last two terms to assure that ``household'' refers to a group 
that consumes energy as a unit. See the 2001 RECS report at http://www.eia.doe.gov/emeu/recs/glossary.html. The cut off of 10 or more 
unrelated people would serve to distinguish a group that acts as a unit 
from one that does not.
    Under these definitions, DOE intends to use a broad range of data, 
including data generated by the RECS, in determining whether products 
qualify for coverage and the development of standards under EPCA. In 
gathering information as to the household energy use of any particular 
product, DOE will use the best available data for that product. When 
RECS data covers a product, its use will be possible because the 
substance of the proposed definitions is consistent with and quite 
similar to the corresponding EIA definitions. See the 2001 RECS report 
at http://www.eia.doe.gov/emeu/recs/glossary.html. Moreover, DOE will 
generally prefer to use the RECS data because generally it is the most 
comprehensive and best available source of information on residential 
energy consumption. The RECS, however, will likely not cover many of 
the products DOE is investigating. By not adhering to all of the 
details of the definitions used in the RECS, the definitions 
promulgated by this final

[[Page 13219]]

rule allow DOE sufficient flexibility to use other sources of 
information.
    Finally, EPCA defines ``average annual per-household energy use'' 
for a type of product as being the ``estimated aggregate annual energy 
use * * * of consumer products of such type which are used by 
households in the United States, divided by the number of such 
households which use [them].'' (42 U.S.C. 6292(b)(2)) DOE is hereby 
defining ``energy use of a type of consumer product which is used by 
households'' as meaning energy use by the product both within the 
interior space of housing units occupied by households, as well as on 
contiguous property used primarily by the household occupying the 
housing unit. Thus, for example, where a product consumes energy in a 
housing unit's backyard or outdoor pool or accessory building(s) or 
structures, such energy use would be included in determining per-
household or aggregate-household energy use. This definition also makes 
clear that household energy use includes all energy consumption, both 
by members of each household and their visitors, at all housing units 
occupied by each household.

B. Extent of Reliance on Definitions Used in DOE's Residential Energy 
Consumption Survey

    Since 1978, EIA has periodically gathered information about energy 
consumption in the residential sector by conducting a RECS, and in 
2004, EIA posted data on its Web site on the results of its 2001 RECS 
at http://www.eia.doe.gov/emeu/recs/contents.html. (2001 RECS Report). 
The RECS provides information on the use of energy in residential 
housing units in the United States. This information includes: the 
physical characteristics of the housing units surveyed; the appliances 
in those units, including space heating and cooling equipment; 
demographic characteristics of the households; the types of fuels used; 
and other information that relates to energy use.
    ``Household'' energy consumption behavior is the focus of the RECS. 
This behavior is a primary driver behind purchases and consumption of 
energy in the residential setting. The RECS collects information 
focused on the household, and the RECS report provides data on energy 
consumption and expenditures per household.
    The definitions promulgated in this final rule contain the same 
concepts as the RECS definitions (see the 2001 RECS report at http://www.eia.doe.gov/emeu/recs/glossary.html), and this is appropriate for 
several reasons. First, as a general matter, the RECS definitions 
appear to be reasonable and logical constructions of the term 
``household.'' In content, they are very similar to definitions for 
household and related terms in the Census Bureau's housing survey, 
e.g., Current Housing Reports, U.S. Census Bureau, Pub. No. H150/07, 
American Housing Survey for the United States: 2007 at Appendix A, A-9-
A-11 (2008) (2008 Housing Survey Report). Second, the RECS uses 
``household'' and related terms for purposes very similar to those for 
which DOE would use the definitions promulgated in this final rule. 
These definitions provide a basis on which DOE could estimate the 
household energy use of particular products. The RECS uses the terms 
for gathering and presenting precisely this type of information, 
although it also collects information as to household energy use 
generally. Finally, DOE has used RECS data in its rulemakings 
concerning energy conservation standards, and intends to use this data 
whenever possible to determine whether it can classify as covered, and 
adopt standards for, consumer products not listed as covered in EPCA. 
For example, DOE used RECS data in rulemakings concerning efficiency 
standards for residential central air conditioners and heat pumps, and 
for residential water heaters. 65 FR 59589, 59595, 59600 (October 5, 
2000); 66 FR 4474, 4477, 4478 (January 17, 2001).
    As indicated above, today's final rule incorporates from the RECS 
definitions the concept that a group of 10 or more unrelated people, 
even if living in a dwelling that would otherwise be a single housing 
unit, would not be a ``household'' for purposes of determining per-
household energy consumption. From 1984 to 2005, the Census Bureau's 
housing survey used a similar approach: It did not treat as a household 
a group that occupies living quarters inhabited by nine or more 
unrelated persons. 2008 Housing Survey Report, App. C at C-7. Although 
DOE might possibly have used a different numerical cut off than the 
RECS uses, or a more subjective approach to describe groups that occupy 
a dwelling and act as a unit, DOE determined that the approach in the 
RECS is reasonable and wants to be able to rely on the RECS data to the 
greatest extent possible to evaluate household energy consumption for 
products it seeks to cover. DOE emphasizes that it is promulgating this 
classification only for purposes of evaluating household energy 
consumption under EPCA. The final rule's definition of ``household'' is 
not intended in any way to address or make a judgment on the 
desirability of households of any particular size or composition.
    Although definitions promulgated in this final rule are essentially 
the same in substance as the definitions the RECS uses for 
``household'' and related terms, the final rule language is much less 
detailed, and differs from the language of the RECS definitions in a 
number of respects. The RECS definitions contain language specifically 
geared to EIA's purposes that is unnecessary for this rulemaking. 
Regarding the level of detail, most significant is that the RECS 
definition of ``household'' identifies various specific categories of 
people who would or would not be considered household members, whereas 
this final rule does not identify such categories. The RECS gathers 
information as to the characteristics of the households it surveys, but 
DOE will not use the final rule's definitions as a basis for obtaining 
such information. Therefore, the RECS definition needs to delineate who 
is and is not within a household with much greater precision than the 
final rule's definition.
    In addition, the definitions in this final rule contain many 
technical and editorial changes to the RECS definitions. For example, 
the RECS definition of ``household'' refers to a person's residence 
``at the time of the first field contact'' and to comparison of the 
numbers of households and of occupied housing units ``in the RECS.'' 
2001 RECS report at http://www.eia.doe.gov/emeu/recs/glossary.html. 
Such language does not belong in the final rule's definition of 
household, which would be used to provide a metric for assessing the 
energy use of a product.
    Furthermore, because EIA did not develop the RECS definitions for 
inclusion in regulations, they are not in the form, and sometimes lack 
the precision, needed in a regulation. For example, consecutive 
sentences of the RECS definition of ``household'' describe members of 
the household as persons who have their ``usual or permanent place of 
residence'' in the same housing unit, who ``live in the housing unit,'' 
and who ``usually live in the household.'' 2001 RECS report at http://www.eia.doe.gov/emeu/recs/glossary.html. These different descriptions 
create the potential for misinterpretation, and use of the word 
``household'' within the definition of that term makes the definition 
circular. In the definitions promulgated in this final rule, DOE has 
converted the EIA definitions into language suitable for use as a 
regulation, adhering to the

[[Page 13220]]

concepts in these definitions while attempting to reduce the potential 
for misinterpretation, vagueness, and conflicts, as well as unnecessary 
wording.
    Finally, the final rule's definition of ``energy use of a type of 
consumer product which is used by households'' reflects how EIA 
conducts the RECS and uses its definitions of household and related 
terms, although in one significant respect it departs from the RECS 
approach. First, the RECS concerns all energy consumption at the 
housing unit where the household is located, i.e., consumption both by 
members of a household and by visitors. 2001 RECS report at http://www.eia.doe.gov/emeu/recs/recs2001/questionaire.pdf. The language of 
the RECS definitions of household and related terms, however, does not 
clearly provide that household energy consumption includes consumption 
by non-members of the household. DOE is defining ``energy use of a type 
of consumer product which is used by households'' so as to clearly 
include such energy consumption.
    Second, the RECS often addresses energy consumption on the grounds 
and in buildings belonging to the housing unit in which the household 
members reside, although its definition of ``housing unit'' does not 
explicitly include such areas. For example, the 2001 RECS addressed 
swimming pool heaters, well water pumps, and outdoor gas lighting (2001 
RECS report at table HC5-4a), and previous surveys have addressed 
products such as electric lawn mowers. The final rule's definition of 
``energy use of a type of consumer product which is used by 
households'' provides in essence that energy consumption on the grounds 
of housing units occupied by the household, and in structures on those 
grounds, is part of household energy consumption.
    Third, the RECS concerns energy consumption only at housing units 
that households occupy as primary residences. 2001 RECS report at 
http://www.eia.doe.gov/emeu/recs/recs2001/append_a.html and http://www.eia.doe.gov/emeu/recs/recs2001/questionaire.pdf. Thus, the RECS 
report does not include information as to household energy use in 
secondary residences. EIA uses this approach for several reasons. 
First, the amount of energy consumed in secondary residences, although 
not negligible, is not large. Second, by covering a narrower universe--
primary residences rather than all residences occupied by households--
the sample of households from which the RECS gathers information will 
provide stronger support for the conclusions reached in the RECS as to 
household energy use. And third, this approach parallels the Census 
Bureau's historical definition of ``household'' and its approach to 
gathering information in its housing survey. EPCA's criteria for 
determining whether a consumer product qualifies for coverage and the 
adoption of standards, however, do not limit per-household or aggregate 
household energy use to energy use in the primary residences of 
households. (42 U.S.C. 6292(b) and 6295(l)) Furthermore, DOE sees no 
reason to adopt such a limitation in evaluating products for coverage 
and standards. Therefore, the definitions in this final rule provide in 
effect that household energy use by a product includes all energy that 
households consume in using that product, at all housing units they 
occupy, regardless of whether the housing units are primary residences. 
This permits DOE to use data as to household energy consumption that 
includes both primary and secondary residences, if such data is 
available. When such data is not available, DOE intends to use data 
that includes only primary residences, such as the RECS data. Energy 
consumption at primary residences will always be at least a constituent 
element of total household energy use for consumer products, since for 
all or virtually all such products it appears to represent the most 
significant portion of household energy use. Thus, for products for 
which the available data includes energy use only at primary 
residences, such as the RECS data, DOE's use of such data as a basis 
for determining whether the product qualifies for coverage and the 
adoption of standards would provide an accurate but conservative 
estimate of per-household and aggregate household energy use under 
EPCA.

C. Conclusion

    In sum, DOE has adopted definitions of ``household'' and related 
terms, which it would use to determine whether products not currently 
covered under EPCA meet the EPCA criteria for classification as 
``covered products.'' DOE would also use these definitions to determine 
whether, once a product has been so classified, it meets the additional 
per-household and aggregate household energy use criteria for setting 
energy conservation standards under EPCA for a product DOE classifies 
as covered. EPCA directs DOE to define ``household,'' and DOE believes 
the definitions promulgated in this final rule are reasonable and 
consistent with data DOE intends to use in making its determinations on 
household energy consumption.

III. Public Participation

A. Determination Not To Hold Public Meeting

    Under 42 U.S.C. 7191(c)(1), the Secretary may determine that ``no 
substantial issue of fact or law exists and that such rule * * * is 
unlikely to have a substantial impact on the Nation's economy or large 
numbers of individuals or businesses,'' and that ``such proposed rule * 
* * or order may be promulgated in accordance with section 553 of title 
5.'' Section 553(c) of title 5 permits the agency to ``give interested 
persons an opportunity to participate in the rule making through 
submission of written data, views, or arguments with or without 
opportunity for oral presentation.'' DOE determined that a 45-day 
public comment period for written comments was sufficient and that a 
public meeting for oral presentation was unnecessary for this 
rulemaking. Since this rulemaking did not raise any issues of fact or 
law and merely provided a definition necessary for the Secretary to 
carry out authority already held by the Secretary under EPCA, this 
rulemaking was unlikely to have a substantial impact on the Nation's 
economy or large numbers of individuals or businesses.

B. Public Comment Response

    No comments were received during the public comment period that 
ended June 19, 2006. One comment was received from the Peoples Republic 
of China (China) after the close of the comment period. China 
recommended that the definition take into account the possibility that 
certain households may have non-residential energy uses, which should 
be excluded from consideration. Even if China's comment had been 
received during the comment period, DOE believes that the statutory 
provisions that direct DOE to consider the average annual per-household 
energy use of consumer products ensure that only residential energy 
uses will be considered. China also made suggestions regarding certain 
regulatory issues that are beyond the scope of this rulemaking.
    DOE anticipated that this rulemaking would be non-controversial. 
This was confirmed, as evidenced by the receipt of only one public 
comment. Therefore, DOE is adopting the rule verbatim as originally 
proposed in the notice of proposed rulemaking and opportunity for 
public comment which was published in the Federal Register on May 4, 
2006. (71 FR 26275)

[[Page 13221]]

IV. Procedural Requirements

A. Review Under Executive Order 12866

    The Office of Information and Regulatory Affairs of the Office of 
Management and Budget (OMB) determined that today's regulatory action 
is not a ``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this action was not subject to review under the Executive 
Order.

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 for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its draft rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made 
them available on the Office of General Counsel's Web site: http://www.gc.doe.gov.
    DOE reviewed this rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. This final rule neither classifies any product as covered 
under EPCA, nor includes any requirement for any product. Thus, the 
final rule does not have any economic impact on any business or entity. 
On the basis of the foregoing, DOE certifies that the final rule does 
not impose a significant economic impact on a substantial number of 
small entities. Accordingly, DOE did not prepare a regulatory 
flexibility analysis for this rulemaking. DOE transmitted the 
certification and supporting statement of factual basis to the Chief 
Counsel for Advocacy of the Small Business Administration for review 
pursuant to 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    This rule was reviewed under the Paperwork Reduction Act. (44 
U.S.C. 3501 et seq.) This rule concerns an element of the criteria DOE 
must use to determine whether it can regulate and adopt energy 
conservation standards for consumer products not already covered under 
EPCA. It does not require any additional reports or recordkeeping. 
Accordingly, this action is not subject to review under the Paperwork 
Reduction Act.

D. Review Under the National Environmental Policy Act of 1969

    In this rulemaking, DOE adopted definitions that provide a basis 
for DOE to determine whether products not currently covered by EPCA 
meet the requirements for DOE to classify a product as a ``covered 
product'' under EPCA, and to establish energy conservation requirements 
for the product. The definitions will not affect the quality or 
distribution of energy and, therefore, will not result in any 
environmental impacts. DOE, therefore, determined that this rule falls 
into a class of actions that are categorically excluded from review 
under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.) and DOE's implementing regulations at 10 CFR part 1021. More 
specifically, today's rule is covered by the Categorical Exclusion in 
paragraph A5 to subpart D, 10 CFR part 1021 (rulemaking that amends an 
existing rule without changing the environmental effect of the rule 
being amended). Accordingly, neither an environmental assessment nor an 
environmental impact statement was required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. The Executive Order 13132 requires agencies to examine 
the constitutional and statutory authority supporting any action that 
would limit the policymaking discretion of the States and 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).
    The final rule published today supplies an element of the criteria 
DOE must use to determine whether it can regulate and adopt energy 
conservation standards for consumer products not already covered under 
EPCA. This final rule will not directly affect state or local 
governments. However, it might ultimately have an indirect impact on 
such governments because the rule could affect which products DOE 
covers and adopts standards for, under EPCA. If DOE ultimately decides 
to extend the coverage of its energy efficiency program to additional 
consumer products, the future application of coverage criteria could 
pre-empt state and local requirements for those newly covered products. 
Such impacts would not be the result of this final rule but would be 
the result of later notice-and-comment rulemakings. Thus today's rule, 
by itself, does not pre-empt any state or local action.
    For these reasons, DOE determined that this final rule does not 
preempt State law and 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. Therefore, no further action is required 
by Executive Order 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 Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this final rule meets the relevant standards of 
Executive Order 12988.

[[Page 13222]]

G. Review Under Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) (UMRA) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and tribal governments and the 
private sector. With respect to a proposed regulatory action that may 
result in the expenditure by State, local and tribal governments, in 
the aggregate, or by the private sector of $100 million or more 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish estimates of the resulting costs, benefits, 
and other effects on the national economy. (2 U.S.C. 1532(a), (b)) UMRA 
also requires a Federal agency to develop an effective process to 
permit timely input by elected officers of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate,'' 
and requires an agency plan for giving notice and opportunity for 
timely input to potentially affected small governments before 
establishing any requirements that might significantly or uniquely 
affect small governments. On March 18, 1997, DOE published a statement 
of policy on its process for intergovernmental consultation under UMRA 
(62 FR 12820) (also available at http://www.gc.doe.gov).
    This final rule will not directly affect any State, local or tribal 
government, or the private sector. It might ultimately have an indirect 
effect on State or local governments, and the private sector, since it 
could affect which products DOE covers and adopts standards for under 
EPCA. DOE's coverage and adoption of standards for products could pre-
empt state and local requirements for those products, and would affect 
companies that manufacture and sell them. Such impacts will not result 
from promulgation of this final rule, however, and the rule imposes no 
mandates of any kind.
    For these reasons, we have determined that this final rule does not 
provide for any Federal mandate that may result in estimated costs of 
$100 million or more. Therefore, a cost benefit analysis was not 
required under the UMRA.

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

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

I. Review Under Executive Order 12630

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

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

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

K. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to 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 
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 
Administration of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
Today's final rule is not a significant regulatory action under 
Executive Order 12866. Moreover, it would not have a significant 
adverse effect on the supply, distribution, or use of energy. 
Therefore, it is not a significant energy action, and DOE has not 
prepared a Statement of Energy Effects.

L. Congressional Notification

    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).

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's rule.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Energy conservation, 
Household appliances.

    Issued in Washington, DC, on January 22, 2010.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.

0
For the reasons set forth in the preamble, Part 430 of Chapter II of 
Title 10, Code of Federal Regulations, is amended 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 adding definitions for ``energy use of a 
type of consumer product which is used by households,'' and 
``household,'' in alphabetical order to read as follows:


Sec.  430.2  Definitions.

* * * * *
    Energy use of a type of consumer product which is used by 
households means the energy consumed by such product within housing 
units occupied by households (such as energy for space heating and 
cooling, water heating, the operation of appliances, or other 
activities of the households), and includes energy consumed on any 
property that is contiguous with a housing unit and that is used 
primarily by the household occupying the housing unit (such as energy 
for exterior lights or heating a pool).
* * * * *
    Household means an entity consisting of either an individual, a 
family, or a

[[Page 13223]]

group of unrelated individuals, who reside in a particular housing 
unit. For the purpose of this definition:
    (1) 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.
    (2) 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.
    (3) Separate living quarters means living quarters:
    (i) To which the occupants have access either:
    (A) Directly from outside of the building, or
    (B) Through a common hall that is accessible to other living 
quarters and that does not go through someone else's living quarters, 
and
    (ii) Occupied by one or more persons who live and eat separately 
from occupant(s) of other living quarters, if any, in the same 
building.
* * * * *

[FR Doc. 2010-6045 Filed 3-18-10; 8:45 am]
BILLING CODE 6450-01-P