[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Rules and Regulations]
[Pages 71325-71330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24866]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 81, No. 200 / Monday, October 17, 2016 /
Rules and Regulations
[[Page 71325]]
DEPARTMENT OF ENERGY
10 CFR Part 430
[Docket Number EERE-2016-BT-STD-0007]
RIN 1904-AD65
Energy Conservation Program: Energy Conservation Standards for
Direct Heating Equipment
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final determination.
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SUMMARY: The Energy Policy and Conservation Act of 1975 (EPCA), as
amended, prescribes energy conservation standards for various consumer
products and certain commercial and industrial equipment, including
direct heating equipment. EPCA also requires the U.S. Department of
Energy (DOE) to periodically determine whether more-stringent standards
would be technologically feasible and economically justified, and would
save a significant amount of energy. In this final determination, DOE
is finalizing its determination that more-stringent energy conservation
standards for direct heating equipment are not economically justified
and is therefore not amending its energy conservation standards.
DATES: The effective date of this rule is December 16, 2016.
ADDRESSES: The docket for this rulemaking, which includes Federal
Register notices, public meeting attendee lists and transcripts,
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.
A link to the docket Web page can be found at https://www.regulations.gov/docket?D=EERE-2016-BT-STD-0007. The docket Web page
contains simple instructions on how to access all documents, including
public comments, in the docket.
For further information on how to review the docket, contact the
Appliance and Equipment Standards Program Staff at (202) 586-6636 or by
email: [email protected]
FOR FURTHER INFORMATION CONTACT:
John Cymbalsky, U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Building Technologies Office, EE-5B,
1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone:
(202) 287-1692. Email: [email protected].
Ms. Sarah Butler, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW., Washington, DC 20585-
0121. Telephone: (202) 586-1777. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of the Determination
A. Authority
B. Background
1. Current Standards
2. History of Rulemakings for Direct Heating Equipment
II. Rationale
A. Previous Rulemaking
B. April 2016 Proposal Not To Amend
C. Comments Received
III. Final Determination Not To Amend
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 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, 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. Review Under the Information Quality Bulletin for Peer Review
V. Approval of the Office of the Secretary
I. Summary of the Determination
DOE has determined that energy conservation standards should not be
amended for direct heating equipment (DHE). DOE has concluded that the
DHE market characteristics are largely similar to those analyzed in the
previous rulemaking and the technologies available for improving DHE
energy efficiency have not advanced significantly since the previous
rulemaking analyses \1\ (concluding with the publication of a final
rule on April 16, 2010, hereafter ``April 2010 Final Rule''). 75 FR
20112. In addition, DOE believes the conclusions reached in the April
2010 Final Rule regarding the benefits and burdens of more stringent
standards for DHE are still relevant to the DHE market today.
Therefore, DOE has determined that amended energy conservation
standards would not be economically justified.
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\1\ With the exception of condensing technology for fan-type
wall furnaces, discussed in section II.
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A. Authority
Title III, Part B \2\ of the Energy Policy and Conservation Act of
1975 (``EPCA'' or ``the Act''), Public Law 94-163 (codified at 42
U.S.C. 6291-6309) established the Energy Conservation Program for
Consumer Products Other Than Automobiles.\3\ This program covers most
major household appliances (collectively referred to as ``covered
products'') including DHE, which are the subject of this document. (42
U.S.C. 6292 (a)(9)) EPCA prescribed initial energy conservation
standards for DHE and directs DOE to conduct future rulemakings to
determine whether to amend these standards. (42 U.S.C. 6295(e)(3) and
(4)) DOE is issuing this final determination pursuant to that
requirement, in addition to the requirement under 42 U.S.C. 6295(m),
which states that DOE must periodically review its already established
energy conservation standards for a covered product not later than six
years after issuance of any final rule establishing or amending such
standards. As a result of such review, DOE must either publish a notice
of proposed rulemaking to amend
[[Page 71326]]
the standards or publish a notice of determination indicating that the
existing standards do not need to be amended. (42 U.S.C. 6295(m)(1)(A)
and (B))
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\2\ For editorial reasons, upon codification in the U.S. Code,
Part B was redesignated as Part A.
\3\ All references to EPCA in this document refer to the statute
as amended through the Energy Efficiency Improvement Act, Public Law
114-11 (April 30, 2015).
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Pursuant to the requirements set forth under EPCA, any new or
amended standard for a covered product must be designed to achieve the
maximum improvement in energy efficiency that is technologically
feasible and economically justified. (42 U.S.C. 6295(o)(2)(A))
Furthermore, DOE may not adopt any standard that would not result in
the significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))
Moreover, DOE may not prescribe a standard: (1) For certain products,
including DHE, if no test procedure has been established for the
product,\4\ or (2) if DOE determines by rule that the standard is not
technologically feasible or economically justified. (42 U.S.C.
6295(o)(3)(A)(B)) In deciding whether a proposed standard is
economically justified, DOE must determine whether the benefits of the
standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make
this determination after considering, to the greatest extent
practicable, the following seven statutory factors:
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\4\ The DOE test procedures for DHE appear at title 10 of the
Code of Federal Regulations (CFR) part 430, subpart B, appendix O
and 10 CFR part 430, subpart B, appendix G (appendix G).
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(1) The economic impact of the standard on manufacturers and
consumers of the products subject to the standard;
(2) The savings in operating costs throughout the estimated average
life of the covered products in the type (or class) compared to any
increase in the price, initial charges, or maintenance expenses for the
covered products that are likely to result from the standard;
(3) The total projected amount of energy (or as applicable, water)
savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the covered
products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in
writing by the Attorney General, that is likely to result from the
standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary of Energy (Secretary) considers
relevant.
(42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))
Further, EPCA, as codified, establishes a rebuttable presumption
that a standard is economically justified if the Secretary finds that
the additional cost to the consumer of purchasing a product complying
with an energy conservation standard level will be less than three
times the value of the energy savings during the first year that the
consumer will receive as a result of the standard, as calculated under
the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))
EPCA, as codified, also contains what is known as an ``anti-
backsliding'' provision, which prevents the Secretary from prescribing
any amended standard that either increases the maximum allowable energy
use or decreases the minimum required energy efficiency of a covered
product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe
an amended or new standard if interested persons have established by a
preponderance of the evidence that the standard is likely to result in
the unavailability in the United States in any covered product type (or
class) of performance characteristics (including reliability),
features, sizes, capacities, and volumes that are substantially the
same as those generally available in the United States. (42 U.S.C.
6295(o)(4))
Federal energy conservation requirements generally supersede State
laws or regulations concerning energy conservation testing, labeling,
and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers
of Federal preemption for particular State laws or regulations, in
accordance with the procedures and other provisions set forth under 42
U.S.C. 6297(d)).
Finally, any final rule for new or amended energy conservation
standards promulgated after July 1, 2010, is required to address
standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3))
Specifically, when DOE adopts a standard for a covered product after
that date, it must, if justified by the criteria for adoption of
standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and
off mode energy use into a single standard, or, if that is not
feasible, adopt a separate standard for such energy use for that
product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures
for vented home heating equipment address standby mode fossil-fuel
energy use only.
B. Background
1. Current Standards
In the April 2010 Final Rule, DOE prescribed the current energy
conservation standards for DHE manufactured on and after April 16,
2013. 75 FR 20112. These standards are set forth in DOE's regulations
at 10 CFR 430.32(i)(2) and are shown in Table I-1.\5\
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\5\ DOE notes that DHE is defined at 10 CFR 430.2 as vented home
heating equipment and unvented home heating equipment; however, the
existing energy conservation standards apply only to product classes
of vented home heating equipment. There are no existing energy
conservation standards for unvented home heating equipment.
Table I-1--Federal Energy Conservation Standards for DHE
[10 CFR 430.32(i)(2)]
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Annual fuel
utilization
Product class efficiency,
April 16, 2013
(percent)
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Gas wall fan type up to 42,000 Btu/h.................... 75
Gas wall fan type over 42,000 Btu/h..................... 76
Gas wall gravity type up to 27,000 Btu/h................ 65
Gas wall gravity type over 27,000 Btu/h up to 46,000 Btu/ 66
h......................................................
Gas wall gravity type over 46,000 Btu/h................. 67
Gas floor up to 37,000 Btu/h............................ 57
Gas floor over 37,000 Btu/h............................. 58
Gas room up to 20,000 Btu/h............................. 61
Gas room over 20,000 Btu/h up to 27,000 Btu/h........... 66
Gas room over 27,000 Btu/h up to 46,000 Btu/h........... 67
Gas room over 46,000 Btu/h.............................. 68
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2. History of Rulemakings for Direct Heating Equipment
EPCA, as codified, initially set forth energy conservation
standards for certain DHE product classes that are the subject of this
document and directed DOE to conduct two subsequent rulemakings to
determine whether the existing standards should be amended. (42 U.S.C.
6295(e)(3) and (4)) The first of these two rulemakings included both
DHE and pool heaters and concluded with the April 2010 Final Rule
(codified at 10 CFR 430.32(i) and (k)). 75 FR 20112. With respect to
DHE, the first rulemaking amended the energy conservation standards for
vented home heating equipment, a subset of DHE, and consolidated some
of the product classes from the previous standards established by EPCA.
Compliance with the amended standards was required beginning on April
16, 2013. Id. DOE did not issue standards for unvented home heating
equipment, a subset of DHE, finding that such standards would produce
insignificant energy savings. 75 FR 20112, 20130.
This rulemaking satisfies the statutory requirement under EPCA to
(1) conduct a second round of review of the DHE
[[Page 71327]]
standards (42 U.S.C. 6295(e)(4)(B)) and (2) publish either a notice of
determination that standards for DHE do not need to be amended or a
notice of proposed rulemaking proposing to amend the DHE energy
conservation standards (42 U.S.C. 6295(m)(1)). To initiate this
rulemaking,\6\ DOE issued a Request for Information (RFI) in the
Federal Register on March 26, 2015 (hereafter ``March 2015 RFI''). 80
FR 15922. Through that RFI, DOE requested data and information
pertaining to its planned technical and economic analyses for DHE and
pool heaters.
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\6\ Although the March 2015 RFI and the previous energy
conservation standards rulemaking included both DHE and pool
heaters, DOE subsequently elected to conduct separate rulemakings
for each of these products. This rulemaking pertains solely to the
energy conservation standards for DHE.
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Subsequently, on April 11, 2016, DOE published in the Federal
Register a Notice of Proposed Determination (April 2016 NOPD) to not
amend its energy conservation standards for DHE. 81 FR 21276. Due to
the lack of advancement in the DHE industry since the April 2010 Final
Rule in terms of product offerings, available technology options and
associated costs, and declining shipment volumes, DOE believed that
amending the DHE energy conservation standards would impose a
substantial burden on manufacturers of DHE, particularly to small
manufacturers. DOE also tentatively concluded that energy conservation
standards for unvented home heating equipment, a form of DHE, would
likely result in negligible energy savings and therefore did not
propose standards for this product. In this final determination, DOE
finalizes its proposed determination from the April 2016 NOPD.
II. Rationale
A. Previous Rulemaking
In the most recent DOE rulemaking for DHE energy conservation
standards, DOE initially proposed standards for vented home heating
products in a NOPR published on December 11, 2009 (``December 2009
NOPR'') that represented a six AFUE percentage point (weighted-average
across all product classes) increase over the standards established by
EPCA and codified at 42 U.S.C. 6295(e)(3). 74 FR 65852 (December 11,
2009). In response to the December 2009 NOPR several commenters
presented the following concerns:
Shipments of DHE were low, therefore energy savings
potential was low;
Low shipments would make it difficult to recoup
manufacturers' expenditures related to complying with amended
standards;
Product offerings may be reduced;
Manufacturers may leave the market entirely; and
Employment in the industry may be negatively impacted due
to reduced product lines and/or insufficient return on investment
required to meet amended standards.
In the April 2010 Final Rule, DOE also found that:
The industry had gone through considerable consolidation,
with three businesses controlling the vast majority of the market;
Consolidation was driven by the decrease in shipments;
Product lines were predominantly maintained to provide
replacements, not new construction; and
Small business manufacturers could be disproportionately
disadvantaged by a more stringent standard due to low shipment volumes
and a high ratio of anticipated investment costs to annual earnings.
DOE ultimately rejected TSL 3 and all higher TSLs in the April 2010
Final Rule on the grounds that capital conversion costs would lead to a
large reduction in INPV and that small businesses would be
disproportionately impacted. DOE also noted that the life-cycle cost
(LCC) and payback period analyses (PBP) for TSL 4 and higher suggested
that benefits to consumers were outweighed by initial costs. 75 FR
20112, 20215-20218 (April 16, 2010). DOE, therefore, adopted standards
at TSL 2 for vented home heating equipment. Compliance with the adopted
standards (codified at 10 CFR 430.32(i)(2)) was required for all vented
home heating equipment manufactured on or after April 16, 2013.
B. April 2016 Proposal Not To Amend
In the April 2016 NOPD DOE found that few changes to the industry
and product offerings had occurred since the April 2010 Final Rule and
therefore the conclusions presented in that final rule were still
valid. First, DOE conducted a review of the current DHE market,
including product literature and product listings in the DOE Compliance
Certification Management System (CCMS) database and Air-Conditioning,
Heating, and Refrigeration Institute (AHRI) product directory.\7\ DOE
found that the number of models offered in each of the DHE product
classes has decreased overall since the previous rulemaking. This
supported the notion that the DHE market was shrinking and that product
lines were mainly maintained as replacements for existing DHE units,
and that new product lines generally were not being developed.
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\7\ The AHRI directory for DHE can be found at: https://www.ahridirectory.org/ahridirectory/pages/dht/defaultSearch.aspx.
The DOE CCMS database can be found at: http://www.regulations.doe.gov/certification-data/.
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Second, DOE examined available technologies used to improve the
efficiency of DHE. DOE contractors analyzed current products through
product teardowns and engaged in manufacturer interviews to obtain
further information in support of its analysis. In response to the
March 2015 RFI, AHRI commented that the current energy conservation
standards are close to if not at the maximum technology level for most
product classes of DHE. (Docket EERE-2015-BT-STD-0003: AHRI, No. 7 at
p. 4) During confidential manufacturer interviews, DOE received similar
feedback regarding the small potential for improving efficiency over
current standards for most product classes. Moreover, manufacturers
suggested that because these units are primarily sold as replacement
units, new designs or prototypes are generally not being pursued. DOE
noted in the April 2016 NOPD that the same technology options (namely
improved heat exchanger, induced draft, electronic ignition, and a two-
speed blower for wall fan-type furnaces) were considered as part of the
previous DHE rulemaking analysis, and agreed that the technology
options available for DHE likely have limited potential for achieving
energy savings.\8\ Furthermore, the costs of technology options were
anticipated to be similar or higher than in the previous rulemaking
analysis due to reduced shipments and therefore the purchasing power of
DHE manufacturers.
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\8\ DOE notes that for room heaters with input capacity up to
20,000 Btu/h, the maximum AFUE available on the market increased
from 59% in 2009 (only one unit at this input capacity was available
on the market at that time) to 71% in 2015. DOE believes that this
is due to heat exchanger improvements only because these units do
not use electricity. Due to the small input capacity, DOE does not
believe that this increase in AFUE (based on heat exchanger
improvements relative to input capacity) is representative of or
feasible for other room heater product classes.
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In addition to these technology options, DOE also noted that a
condensing fan-type wall furnace with two input capacities (17,500 Btu/
h with a 90.2% AFUE rating, and 35,000 Btu/h with a 91.8% AFUE rating)
had become available since the last rulemaking. DOE must set amended
standards that result in the maximum improvement in energy efficiency
that is technologically feasible (42 U.S.C.
[[Page 71328]]
6295(p)(1)) and economically justified. (42 U.S.C. 6295(o)(2)(A)) DOE
generally considers technologies available in the market or in
prototype products in its list of technologies for improving
efficiency. Therefore, DOE determined that this condensing fan-type
wall furnace represented the max-tech efficiency level for fan-type
wall furnaces for this rulemaking. DOE received feedback during
manufacturer interviews regarding the manufacturer production cost for
the condensing unit that indicated that condensing models are
significantly more expensive to manufacture than non-condensing models.
Manufacturer feedback also indicated that shipments of these units are
so low as to be negligible, as consumers are not willing to pay the
high initial cost for such products. Furthermore, only one manufacturer
currently makes a condensing fan-type wall furnace and others would
need to make substantial investments in order to produce these units on
a scale large enough to support a Federal minimum standard. Therefore,
DOE concluded that this technology option, which was not considered in
the analysis for the April 2010 Final Rule, would not be economically
justified today when analyzed for the Nation as a whole. DOE believes
that severe manufacturer impacts would be expected if an energy
conservation standard were adopted at this level.
Finally, DOE acknowledged in the April 2016 NOPD that the DHE
industry had seen further consolidation, with the total number of
manufacturers declining from six to four. Furthermore, according to
manufacturers,\9\ shipments further decreased since the April 2010
Final Rule, and therefore it would be more difficult for manufacturers
to recover capital expenditures resulting from increased standards. DOE
acknowledged that DHE units continue to be produced primarily as
replacements and that the market is small, and expected that shipments
would continue to decrease and amended standards would likely
accelerate the trend of declining shipments. Moreover, DOE anticipated
that small business impacts resulting from amended standards could be
significant, as two of the four remaining manufacturers subject to DHE
standards are small businesses. DOE believed that its conclusions
regarding small businesses from the April 2010 Final Rule (i.e., that
small businesses would be likely to reduce product offerings or leave
the DHE market entirely if the standard was set above the level adopted
in that rulemaking) were still valid concerns.
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\9\ Information obtained during confidential manufacturer
interviews.
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In light of these considerations, DOE proposed in the April 2016
NOPD not to amend its energy conservation standards for DHE. DOE
tentatively concluded that amended standards for DHE could not be
economically justified based on low and declining shipments, lack of
cost-effective technology options, and the potential for severe impacts
on small businesses.
C. Comments Received
In response to the April 2016 NOPD, DOE received five comment
submissions from Tyler McAnelly (individual), the American Public Gas
Association (APGA), the Association of Home Appliance Manufacturers
(AHAM), the California Investor Owned Utilities (CA IOUs), and the Air-
conditioning, Heating, and Refrigeration Institute (AHRI).\10\
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\10\ All public comment submissions can be found at: https://www.regulations.gov/docket?D=EERE-2016-BT-STD-0007.
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APGA, AHAM, and AHRI supported DOE's tentative determination that
amended standards for DHE would not be economically justified. (APGA,
No. 4 at p. 1-2; AHAM, No. 5 at p. 2; AHRI, No. 7 at p. 1-2) APGA
reiterated that because the market is small, any increase in the
standard would result in significant impacts on manufacturers. (APGA,
No. 4 at p. 1) AHRI agreed that model offerings had been reduced and
suggested that this was a result of the last rulemaking. (AHRI, No. 7
at p. 1) They agreed with DOE's determination that an amended standard
set at a condensing efficiency level for fan-type wall furnaces would
severely impact manufacturers. (AHRI, No. 7 at p. 1) They also
presented their estimates of the percent change in total shipments for
the years 2010-2015 compared with the total shipments over the period
2001-2006, estimating that wall furnace shipments were 21% less, direct
vent wall furnace (a form of wall furnace) shipments were 31% less, and
room heater shipments were 44% less. (AHRI, No. 7 at p. 2)
McAnelly suggested that amended standards for DHE may be
technologically feasible, may save a significant amount of energy such
that DOE should not wait until such standards are economically
justified, and that therefore DOE should consider adopting amended
standards for DHE. (McAnelly, No. 3 at p. 1) In response, DOE notes
that it is required by statute (42 U.S.C. 6295(o)(2)(A)) to establish
energy conservation standards that are both technologically feasible
and economically justified, and therefore cannot legally amend
standards that cannot be shown to be economically justified based on
the seven criteria found at 42 U.S.C. 6295(o)(2)(B).
In response to the April 2016 NOPD, the CA IOUs urged DOE to
consider energy conservation standards for portable electric heaters (a
form of unvented home heating equipment). They cited reports indicating
both a growing market, the overall energy use for these products, and
the prevalence of thermostats and their potential to save energy. They
also suggested that DOE modify the test procedure for unvented home
heating equipment in order to reflect energy savings due to control
features like thermostats, occupancy sensors, automatic shut-off, and
network capabilities. (CA IOUs, No. 6 at p. 1-2)
The DOE test procedure for unvented home heating equipment
(appendix G), includes a calculation of annual energy consumption based
on a single assignment of active mode hours for unvented heaters that
are used as the primary heating source for the home. For unvented
heaters that are not used as the primary heating source for the home,
there are no provisions for calculating either the energy efficiency or
annual energy consumption. Pursuant to 42 U.S.C. 6295(o)(3) DOE is
prohibited from prescribing a new or amended standard for a covered
consumer product if a test procedure has not been prescribed for that
consumer product. As such, DOE cannot consider standards for these
products at this time. DOE may consider amending the test procedures
and establishing standards for unvented home heating equipment in the
future.
III. Final Determination Not To Amend
DOE did not receive any comments or data suggesting that DOE's
initial analysis of the DHE market in the April 2016 NOPD was
inaccurate. Therefore, due to the lack of advancement in the DHE
industry since the April 2010 Final Rule in terms of product offerings,
available technology options and associated costs, and declining
shipment volumes, DOE continues to believe that amending the DHE energy
conservation standards would impose a substantial burden on
manufacturers of DHE, particularly to small manufacturers. DOE rejected
higher TSLs during the previous DHE rulemaking due to significant
impacts on industry profitability, risks of accelerated industry
consolidation, and the likelihood that small manufacturers would
experience disproportionate impacts that could lead them to
[[Page 71329]]
discontinue product lines or exit the market altogether. DOE believes
that the market and the manufacturers' circumstances are similar to
those found when DOE last evaluated amended energy conservation
standards for DHE for the April 2010 Final Rule. As such, DOE believes
that amended energy conservation standards for DHE would not be
economically justified at any level above the current standard level
because benefits of more stringent standards would not outweigh the
burdens. Therefore, DOE has determined not to amend the DHE energy
conservation standards.
As discussed in section I.A, EPCA requires DOE to incorporate
standby mode and off mode energy use into a single amended or new
standard (if feasible) or prescribe a separate standard for standby
mode and off mode energy consumption in any final rule establishing or
revising a standard for a covered product, adopted after July 1, 2010.
(42 U.S.C. 6295(gg)(3)(A)-(B)) Because DOE is not amending standards
for DHE in this rule, DOE is not required to adopt amended standards
that include standby and off mode energy use. DOE notes that fossil
fuel energy use in standby mode and off mode is already included in the
AFUE metric, and DOE anticipates that electric standby and off mode
energy use is small in comparison to fossil fuel energy use.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866 and 13563
This final determination is not subject to review under Executive
Order (E.O.) 12866, ``Regulatory Planning and Review.'' 58 FR 51735
(October 4, 1993).
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) and a
final regulatory flexibility analysis (FRFA) 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 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 Web site
(http://energy.gov/gc/office-general-counsel).
DOE reviewed this final determination under the provisions of the
Regulatory Flexibility Act and the policies and procedures published on
February 19, 2003. In this final determination, DOE finds that amended
energy conservation standards for DHE would not be economically
justified at any level above the current standard level because
benefits of more stringent standards would not outweigh the burdens.
This determination does not establish amended energy conservation
standards for DHE. On the basis of the foregoing, DOE certifies that
this determination will not have a significant economic impact on a
substantial number of small entities. Accordingly, DOE has not prepared
an FRFA for this final determination. DOE will transmit 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 final determination, which determines that amended energy
conservation standards for DHE would not be economically justified at
any level above the current standard level because benefits of more
stringent standards would not outweigh the burdens, and imposes no new
information or record keeping requirements. Accordingly, the Office of
Management and Budget (OMB) clearance is not required under the
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)
D. Review Under the National Environmental Policy Act of 1969
In this final determination, DOE determines that amended energy
conservation standards for DHE would not be economically justified at
any level above the current standard level because benefits of more
stringent standards would not outweigh the burdens. DOE has determined
that review under the National Environmental Policy Act of 1969 (NEPA),
Public Law 91-190, codified at 42 U.S.C. 4321 et seq. is not required
at this time because standards are not being adopted.
E. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 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. As this final
determination determines that amended standards are not likely to be
warranted for DHE, there is no impact on the policymaking discretion of
the states. Therefore, no 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,'' 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 Executive Order 12988 specifically requires that
Executive agencies make every reasonable effort to ensure that the
regulation: (1) Clearly specifies the preemptive effect, if any; (2)
clearly specifies any effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. Section 3(c) of
Executive Order 12988 requires Executive agencies to review regulations
in light of applicable standards in section 3(a) and section 3(b) to
determine whether they are met or it is unreasonable to meet one or
more of them. DOE has completed the required review and determined
that, to the extent permitted by law, this proposed determination meets
the
[[Page 71330]]
relevant standards of Executive Order 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 proposed 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 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 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
http://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf. This
final determination contains neither an intergovernmental mandate nor a
mandate that may result in the expenditure of $100 million or more in
any year, so these UMRA requirements do not apply.
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.
This final determination will not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 12630
Pursuant to Executive Order 12630, ``Governmental Actions and
Interference with Constitutionally Protected Property Rights,'' 53 FR
8859 (March 15, 1988), DOE has determined that this final determination
will 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,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516 note) provides for Federal agencies to review
most disseminations of information to the public under 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). DOE has reviewed this final 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
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA
at OMB, a Statement of Energy Effects for any 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 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 proposal be implemented,
and of reasonable alternatives to the action and their expected
benefits on energy supply, distribution, and use.
Because this final determination determines that amended standards
for DHE are not warranted, it is not a significant energy action, nor
has it been designated as such by the Administrator at OIRA.
Accordingly, DOE has not prepared a Statement of Energy Effects.
L. Review Under the Information Quality Bulletin for Peer Review
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 FR 2667.
In response to OMB's Bulletin, DOE conducted formal in-progress
peer reviews of the energy conservation standards development process
and analyses and has prepared a Peer Review Report pertaining to the
energy conservation standards rulemaking analyses. 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. The ``Energy Conservation Standards
Rulemaking Peer Review Report'' dated February 2007 has been
disseminated and is available at the following Web site:
www.energy.gov/eere/buildings/peer-review.
V. 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, Household appliances, Imports,
Incorporation by reference, Intergovernmental relations, Small
businesses.
Issued in Washington, DC, on October 7, 2016.
David J. Friedman,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy.
[FR Doc. 2016-24866 Filed 10-14-16; 8:45 am]
BILLING CODE 6450-01-P