[Federal Register Volume 76, Number 132 (Monday, July 11, 2011)]
[Proposed Rules]
[Pages 40646-40648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17012]

[[Page 40646]]



10 CFR Chapters II, III, and X

Notice of Availability of Preliminary Plan for Retrospective 
Analysis of Existing Rules

AGENCY: Office of the General Counsel, Department of Energy.

ACTION: Notice of availability; request for comment.


SUMMARY: Through this notice, the Department of Energy (DOE) announces 
the availability of its preliminary plan for retrospective analysis of 
existing rules to make the agency's regulatory program more effective 
and less burdensome in achieving its regulatory objectives. As part of 
its implementation of Executive Order 13563, ``Improving Regulation and 
Regulatory Review,'' issued by the President on January 18, 2011, DOE 
sought public comments on whether any of its existing regulations 
should be modified, streamlined, expanded, or repealed. DOE has 
considered these comments in the development of its preliminary plan.

DATES: DOE will accept comments, data, and information regarding its EO 
13563 Preliminary Plan received no later than August 1, 2011.

ADDRESSES: Interested persons are encouraged to submit comments, 
identified by ``EO 13563 Preliminary Plan,'' by any of the following 
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: [email protected]. Include ``EO 13563 
Preliminary Plan'' in the subject line of the message.
    Mail: U.S. Department of Energy, Office of the General Counsel, 
1000 Independence Avenue, SW., Room 6A245, Washington, DC 20585.
    Copies of the final plan and comments received are available for 
public inspection at the U.S. Department of Energy, Forrestal Building, 
1000 Independence Avenue, SW., Washington, DC 20585-0121. Public 
inspection can be conducted between 9 a.m. and 4 p.m., Monday through 
Friday, except Federal holidays. The preliminary plan and public 
comments can also be accessed online at http://www.gc.energy.gov/1705.htm and at http://www.regulations.gov/exchange/sites/default/files/doc_files/Department%20of%20Energy_05_18_2011.pdf.

FOR FURTHER INFORMATION CONTACT: Daniel Cohen, Assistant General 
Counsel for Legislation, Regulation, and Energy Efficiency, U.S. 
Department of Energy, Office of the General Counsel, 1000 Independence 
Avenue, SW., Washington, DC 20585. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: On January 18, 2011, the President issued 
Executive Order 13563, ``Improving Regulation and Regulatory Review,'' 
to ensure that Federal regulations seek more affordable, less intrusive 
means to achieve policy goals, and that agencies give careful 
consideration to the benefits and costs of those regulations. 
Additionally, the Executive Order directs agencies to consider how best 
to promote retrospective analyses of existing rules. DOE's preliminary 
plan was issued on April 29, 2011, and posted for public review at 
http://www.regulations.gov/exchange/sites/default/files/doc_files/Department%20of%20Energy_05_18_2011.pdf. DOE now seeks additional 
comments on its preliminary plan so that it can consider and 
incorporate further public input in its final plan and ongoing 
retrospective review process.
    In developing its preliminary plan, DOE issued a Request for 
Information (RFI) seeking public comment on how best to review its 
existing regulations and to identify whether any of its existing 
regulations should be modified, streamlined, expanded, or repealed. (76 
FR 6123, Feb. 3, 2011) In addition, DOE sought reply comments on the 
suggestions received in response to the RFI to foster a public dialogue 
on its retrospective review processes.
    DOE received numerous detailed comments in response to its RFI and 
request for reply comments. These comments, available at http://www.gc.energy.gov/1705.htm and summarized below, have informed DOE's 
development of its preliminary plan and its early regulatory review 
efforts pursuant to Executive Order 13563. The results of these initial 
efforts are also described below and in the preliminary plan. DOE is 
committed to continuing these efforts and to maintaining a consistent 
culture of retrospective review and analysis of its regulations. As 
specified in the preliminary plan, DOE will continually engage in 
review of its rules to determine whether there are burdens on the 
public that can be avoided by amending or rescinding existing 
requirements. Because public input plays a significant role in the 
retrospective review of DOE regulations, DOE also intends to seek 
public comment on a regular basis as part of this review process.

Comments Received

    DOE received seven comments on current DOE certification, 
compliance, and enforcement rules. Commenters encouraged DOE to allow 
for voluntary independent certification programs (VICPs) as a way to 
reduce regulatory burdens (A.O. Smith Corporation, 2; Association of 
Home Appliance Manufacturers (AHAM), 6; Zero Zone Inc.) or to allow 
manufacturers to do in-house testing (Zero Zone Inc.). One commenter 
suggested DOE use the Air-Conditioning Heating and Refrigeration 
Institute (AHRI) VICP as a model. (Hussmann Corporation, 4). DOE 
received three comments that the March 2011 final rule on 
certification, compliance, and enforcement is increasing manufacturer 
costs and burdens of compliance, including concern about the number of 
base models required for testing. (A.O. Smith Corporation, 1-2; AHRI, 
3; Ingersoll Rand, 1; Zero Zone Inc.). In addition, one comment 
encouraged DOE to move forward with verification testing and lab 
accreditation rulemakings (Appliance Standards Awareness Project 
(ASAP), 3). Another urged DOE to leverage third party verification 
programs that utilize independent testing laboratories and are 
developed by industry trade associations in these rulemakings. (AHAM, 
    DOE received eight comments on the collection of information the 
commenters believed to be unnecessary or ineffectively used. Related to 
appliance efficiency standards rulemakings, two comments expressed 
concern that the discount rate used by DOE for residential and 
commercial consumers was too low. (Edison Electric Institute (EEI), 5-
6; Ingersoll Rand, 2). Another comment suggested that the payback 
period used by DOE to calculate consumer savings is overly long and 
does not consider the impact of regulatory changes on the employees of 
manufacturers and their families. (Ingersoll Rand, 2). In other DOE 
program areas, two comments expressed concern that certain DOE programs 
collect information unrelated to and unnecessary for achieving their 
objectives. (AHRI, 2; Massachusetts Institute of Technology (MIT), 1-
2). Another comment encouraged DOE to streamline its reporting 
databases to improve efficiency and reduce maintenance costs. 
(Honeywell FM&T, 4). In addition, two commenters encouraged DOE to 
review the terms and conditions of its federal research agreements. 
(Council on Governmental Relations (COGR), 3; MIT, 1-2).

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    Three comments addressed consensus standards. One comment 
encouraged DOE to develop a formal process for reviewing consensus 
standards for test procedures as they are developed. (AHRI, 2). Two 
others encouraged the use of consensus standards developed by 
interested parties and setting forth energy conservation standards for 
covered products and commercial equipment, as a way for DOE to meet its 
energy savings goals while leveraging commercial mechanisms and 
expertise. (ASAP, 2; AHAM, 2).
    One commenter encouraged DOE to develop and publish a timeline for 
its approval process of import and export authorization of fossil 
energy to improve certainty. (Cheniere, Inc., 5). The commenter also 
suggested that intervenors in import and export authorization request 
proceedings should have to show changed circumstances to reduce 
uncertainty and delays in these proceedings. (Cheniere, Inc., 4). 
Another commenter encouraged DOE to limit its use of interpretive 
rules. (National Association of Home Builders (NAHB), 25-27).
    Two commenters addressed using curves in DOE analysis, including 
learning curves for costs of production and experience curves for 
equipment price. (ASAP, 3; California Investor Owned Utilities (CAIOU), 
    Two commenters provided suggestions on how to maximize net 
benefits, including considering factors other than direct economic 
impact on purchasers when developing standards and balancing competing 
considerations. (ASAP, 1-2; Ingersoll Rand, 2).
    DOE received numerous comments concerning energy conservation 
standards that the commenters asserted failed to justify the imposed 
costs or are overly burdensome. Two comments were concerned that the 
energy conservation standards for residential storage water heaters 
over 55 gallons will be overly burdensome on consumers and 
manufacturers. (American Gas Association (AGA), 2; EEI, 2). Two 
comments addressed energy conservation standards for refrigeration 
equipment: one commenter suggested the life cycle costs for residential 
equipment under the new standard will be too high for most consumers 
(EEI, 4, 7) and another commenter suggested the testing process for 
commercial equipment could be streamlined and simplified through 
computer modeling.(Hussmann Corporation, 2). Eight commenters addressed 
energy conservation standards for direct heating equipment (DHE) as 
applied to decorative hearth products. (AHRI, 1-2; AGA, 4; Empire 
Comfort Systems, 1-2; Hearth and Home Technologies, 1-2; Hearth, Patio 
& Barbecue Association (HPBA), 1-2; Lennox Hearth Products; NAHB, 35; 
National Propane Gas Association (NPGA), 1-2). DOE notes that it is 
currently involved in litigation over its standards for decorative 
hearth heaters. Any retrospective review of these regulations will 
depend upon the outcome of this litigation. Additionally, one comment 
suggested that DOE should set appliance energy conservation standards, 
but allow states to set building standards for new construction, while 
another encouraged DOE to focus its building programs on existing 
buildings. (CAIOU, 2-3; NAHB, 31) Another comment suggested DOE 
reevaluate its performance standards for products assembled on site. 
(CAIOU, 2).
    Three commenters addressed the process by which guidance is 
communicated. One comment encouraged DOE to streamline the guidance 
given to stakeholders on products covered by energy conservation 
standards and test procedures used to measure compliance with those 
standards. (AHAM, 6-7). Another suggested streamlining of exceptions or 
additions to DOE orders. (Honeywell FM&T, 4-5). Another comment 
stressed the importance of transparency in calculating economic and 
technological justifications. (NAHB, 6, 27).
    DOE received six comments regarding coordination and harmonization 
with agencies, state governments, and industry. Four comments stressed 
the importance of coordination with other agencies in relevant program 
areas, such as the Environmental Protection Agency's ENERGY STAR 
Program, the Federal Trade Commission, and U.S. Customs and Border 
Protection for the implementation and enforcement of its appliance 
efficiency program. (A.O. Smith Corporation, 1; AHAM, 6; AHRI, 2; ASAP, 
3; Hussmann Corporation, 2-3). Two comments addressed the importance of 
coordination with industry and other stakeholders to reduce burden. 
(A.O. Smith Corporation, 1; AHAM, 6). Another comment encouraged DOE to 
publish its final test procedure for battery charging systems because 
of its interaction with the proposed standards for these products being 
considered in California. (AHAM, 4). This commenter also urged DOE to 
consider industry burden in developing its test procedure for clothes 
washers (AHAM, 5-6).
    DOE received comments on regulations that the commenters claimed 
are outdated, working well, or not operating as well as expected. One 
commenter praised the 1996 Process Improvement Rule and encouraged DOE 
to continue following those procedures rather than the updated 
procedures set out by DOE in November 2010 and available at http://www1.eere.energy.gov/buildings/appliance_standards/pdfs/changes_standards_process.pdf. (EEI, 2, 13-14). Another comment encouraged the 
continued use of contract H Clauses. (Honeywell FM&T, 5). One comment 
suggested that DOE update its site specific reporting requirements to 
reflect policy changes. (Honeywell FM&T, 3). Another comment encouraged 
DOE to modernize its approach to National Environmental Policy Act 
(NEPA) rulemaking. (Alton Strategic Environmental Group, 3-9). One 
comment suggested that certain construction subcontractor regulations 
were cumbersome. (Honeywell FM&T, 3). Additionally, another encouraged 
DOE to restructure its state preemption waiver conditions. (CAIOU, 3).
    DOE received numerous comments about how to structure a 
retrospective analysis. Four commenters stressed the need for 
transparency in retrospective analysis. (CAIOU, 1; Honeywell FM&T, 2; 
Ingersoll Rand, 2-3; Institute for Policy Integrity, NYU School of Law, 
9). Five commenters encouraged DOE to consider the real world impact of 
regulations over relying on modeling and assumptions. (ASAP, 1; EEI, 
12-13; Ingersoll Rand, 2; Institute for Policy Integrity, NYU School of 
Law, 7-8; NAHB; 13-14). Four commenters also encouraged DOE to do an 
initial review of existing regulations to prioritize regulations for 
which revision will have the biggest impact. (AGA, 5-6; AHAM, 5; 
Institute for Policy Integrity, NYU School of Law, 5-6; NAHB, 16-19). 
Another comment encouraged DOE to revisit previous decisions denying 
petitions for regulation to see if regulation may now be warranted. 
(Institute for Policy Integrity, NYU School of Law, 3). One comment 
suggested DOE publish a monthly schedule on current rulemaking. (CAIOU, 
    DOE received comments on information and data about the costs, 
burdens, and benefits of existing regulations. One commenter encouraged 
DOE to evaluate the value of continuous efficiency improvement in 
industry. (Honeywell FM&T, 5). Another commenter encouraged DOE to 
evaluate its cost sharing and contracts programs. (COGR, 4-5). One 
commenter also encouraged DOE to revise its consideration of climate 
variations for energy conservation standards, which can affect payback. 
(CAIOU, 4). Two

[[Page 40648]]

commenters addressed the full-fuel-cycle analysis of energy 
consumption. (AGA, 5; EEI, 4-5, 7).
    DOE received comments on unnecessarily complicated regulations, 
reporting requirements, or regulatory processes other than the 
certification reporting requirements discussed previously. Three 
commenters suggested DOE streamline and simplify its various reporting 
requirements. (COGR, 3; Honeywell FM&T, 4; MIT, 2).

Early Retrospective Review Results

    Although DOE's implementation of Executive Order 13563 has only 
just begun, as a result of public input and its own internal analysis, 
DOE has already accomplished or proposed a number of significant 
changes in retrospective review of specific regulations:
    1. In response to industry concerns that a new energy-efficiency 
rule would cost as much as $500 million to implement and would 
significantly interrupt industry research and development efforts, DOE 
has proposed an 18-month extension of that rule.
    2. DOE has issued a notice of proposed rulemaking considering the 
use alternative efficiency determination methods (AEDMs), such as 
computer modeling, to reduce testing burden and eliminate many millions 
of dollars of testing costs. This effort is particularly significant as 
industry has suggested that testing under the current rule could take 
several years to complete and undermine their research and development 
    3. DOE has issued a proposed rule to amend its existing NEPA 
regulations. The changes, proposed primarily for the categorical 
exclusions provisions, are intended to better align DOE's categorical 
exclusions with current activities and recent experiences, and to 
update the provisions with respect to current technologies and 
regulatory requirements. DOE believes the changes made by this 
rulemaking could save the taxpayers as much as $100 million over ten 
years and provide greater transparency to the public as to the NEPA 
standards that DOE employs in analyzing particular technologies.
    4. DOE is undertaking a series of initiatives to reduce paperwork 
burdens on recipients of financial assistance. DOE expects these 
initiatives to result in more than a 90% reduction--a reduction of over 
270,000 hours--in the paperwork burden imposed on recipients of DOE's 
financial assistance.
    5. DOE has sought public input on the potential uses of computer 
simulations to further reduce testing costs and burdens relating to 
efficiency certifications.
    6. After receiving public comment on a draft interpretive rule, DOE 
issued enforcement guidance to explain how DOE intends to enforce 
existing water conservation standards for showerheads. DOE also 
provided an enforcement grace period of two years to allow such 
manufacturers to sell any remaining non-compliant products. DOE changed 
course in order to enforce the existing standards in a manner that 
avoids needless economic dislocation that some industry representatives 
estimated at $400 million.
    7. DOE has issued a proposed rule to standardize procedures for the 
submission and protection of trade secrets and privileged or 
confidential commercial or financial information.
    8. DOE is considering revisions to its regulation concerning sales 
from the Strategic Petroleum Reserve, to streamline the process for 
periodic review and publication of the standard contract provisions.
    9. DOE has published a test procedure for fluorescent lamp ballasts 
that reduces testing burdens by adopting a metric suggested by public 
comment. The revised procedure is anticipated to reduce testing time, 
and therefore laboratory testing costs, by 50 percent.

Request for Further Public Input

    DOE seeks input on its preliminary retrospective review plan, which 
sets forth its intended process for regulatory review pursuant to 
Executive Order 13563. The preliminary plan and comments received to 
date are available at http://www.gc.energy.gov/1705.htm. DOE welcomes 
further comments submitted by August 1, 2011. See the ADDRESSES section 
for further information on how to submit comments.

    Issued in Washington, DC, on June 30, 2011.
Sean A. Lev,
Acting General Counsel.
[FR Doc. 2011-17012 Filed 7-8-11; 8:45 am]