[Federal Register Volume 84, Number 20 (Wednesday, January 30, 2019)]
[Notices]
[Pages 469-473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00303]
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DEPARTMENT OF ENERGY
[Case Number 2018-001]
Energy Conservation Program: Notice of Decision and Order Denying
an Exemption to Aero-Tech Light Bulb Co. From the Department of Energy
Rough Service Lamps Energy Conservation Standards
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of decision and order.
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SUMMARY: The U.S. Department of Energy (DOE) gives notice of a Decision
and Order (Case Number 2018-001) that denies Aero-Tech Light Bulb Co.'s
(Aero-Tech) application for a two-year small business exemption from
compliance with the DOE rough service lamp energy conservation
standards.
DATES: The Decision and Order is effective on January 17, 2019.
ADDRESSES: The docket, which includes Federal Register notices,
comments, and other supporting documents/materials, is available for
review at https://www.regulations.gov. All documents in the docket are
listed in the https://www.regulations.gov index. However, some
documents listed in the index, such as those containing information
that is exempt from public disclosure, may not be publicly available.
The docket web page can be found at http://www.regulations.gov/docket?D=EERE-2018-BT-PET-0016. The docket web page contains simple
instruction on how to access all documents, including public comments,
in the docket.
FOR FURTHER INFORMATION CONTACT:
Dr. Stephanie Johnson, U.S. Department of Energy, Building
Technologies Program, Mailstop EE-2J, 1000 Independence Avenue SW,
Washington, DC 20585-0121. Telephone: (202) 287-1943. E-mail:
[email protected].
Ms. Celia Sher, U.S. Department of Energy, Office of the General
Counsel, Mail Stop GC-33, Forrestal Building, 1000 Independence Avenue
SW, Washington, DC 20585-0103. Telephone: (202) 287-6122. E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On December 26, 2017, DOE issued a final rule codifying at 10 CFR
430.32(bb) statutory backstop requirements applicable to rough service
lamps and vibration service lamps. Prior to the rule, these backstop
requirements were triggered as a result of rough and vibration service
lamps exceeding a previously announced sales threshold and in the
absence of any other energy conservation regulation issued by DOE for
these lamps. In particular, the final rule applies a statutorily
established 40-watt maximum energy use and packaging limitation to
rough and vibration service lamps manufactured on or after January 25,
2018. 82 FR 60845.
On May 23, 2018, Aero-Tech submitted an application, pursuant to
Subpart E of 10 CFR part 430, requesting a two-year small business
exemption from the DOE rough service lamps energy conservation
standards found in 10 CFR 430.32(bb). Aero-Tech requested an exemption
from the standards on the basis of its status as a small business.
According to Aero-Tech, failure to receive a small business exemption
would likely result in a lessening of competition in the market for
lighting companies.
Under 42 U.S.C. 6295(t), DOE may grant to a manufacturer a
temporary exemption from an applicable energy conservation standard if
DOE finds that the annual gross revenues of such manufacturer from all
its operations (including the manufacture and sale of covered products)
does not exceed $8,000,000 for the 12-month period preceding the date
of the application. In making this finding, DOE must account for the
annual gross revenues of any other person who controls, is controlled
by, or is under common control with, such manufacturer. (42 U.S.C.
6295(t)(1)) The Secretary of Energy (Secretary) may not grant an
exemption with respect to any type (or class) of covered product
subject to an energy conservation standard unless the Secretary finds,
after obtaining the written views of the Attorney General, that a
failure to allow an exemption would likely result in a lessening of
competition. (42 U.S.C. 6295(t)(2)) See also, subpart E of 10 CFR part
430. A notice of the decision of the Secretary must be published in the
Federal Register along with the reason for denying or granting the
application. 10 CFR 430.56(c)
On October 15, 2018, DOE issued a notice announcing the receipt of
and publishing Aero-Tech's application for exemption. 83 FR 51931. In
accordance with its regulations, DOE also transmitted Aero-Tech's
application for exemption to the Attorney General by the Secretary
along with: (a) A statement of the facts and of the reasons for the
exemption, and (b) copies of all documents submitted. 10 CFR 430.54.
DOE received one comment submitted by the National Electrical
Manufacturers Association (NEMA) which provided data and supporting
factual information
[[Page 470]]
relating to rough service lamp sales. NEMA did not take a position on
the merits of Aero-Tech's application.\1\
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\1\ NEMA's comment can be accessed at: https://www.regulations.gov/document?D=EERE-2018-BT-PET-0016-0002.
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II. Final Denial
In accordance with Title 10 of the Code of Federal Regulations (10
CFR 430.56(c)), DOE gives notice of the issuance of its decision and
order denying Aero-Tech's application for a small business exemption.
The final decision document setting forth the relevant facts and the
legal basis for denying Aero-Tech's application is available in the
docket referenced above (http://www.regulations.gov/docket?D=EERE-2018-BT-PET-0016). In evaluating this matter, DOE's primary consideration
was whether a failure to allow the exemption would result in a
lessening of competition. After consultation with the Attorney General,
DOE does not believe Aero-Tech has demonstrated that this would be the
case. In its assessment letter responding to
DOE, the Department of Justice (DOJ) concluded that failure to
grant Aero-Tech's application for a small business exemption for rough
service lamps would likely not result in a lessening of competition.
DOJ made this determination after reviewing Aero-Tech's application, as
well as speaking with industry representatives and reviewing the
supplementary information submitted to DOE by industry representatives.
As part of its analysis, DOJ noted that it applies the standard set
forth in 42 U.S.C. 6295(t)(2), and examines whether failure to grant a
small business exemption would likely result in a lessening of
competition, for example, by substantially limiting consumer choice or
increasing industry concentration. DOE is publishing the Attorney
General's determination letter at the end of this notice. In light of
the Attorney General's written finding, DOE has no independent basis to
come to a different conclusion than the DOJ with regard to Aero-Tech's
request for a small business exemption, and, therefore, DOE cannot make
a finding that a failure to allow an exemption to Aero-Tech would
result in a lessening of competition.
Signed in Washington, DC, on January 17, 2019.
Daniel R Simmons,
Assistant Secretary, Energy Efficiency and Renewable Energy.
[[Page 471]]
[GRAPHIC] [TIFF OMITTED] TN30JA19.000
[[Page 472]]
[GRAPHIC] [TIFF OMITTED] TN30JA19.001
Case #2018-001
Decision and Order
I. Background and Authority
The Energy Policy and Conservation Act of 1975 (EPCA),\1\ Public
Law 94-163 (42 U.S.C. 6291-6317, as codified), among other things,
authorizes the U.S. Department of Energy (DOE) to establish energy
conservation standards for certain consumer products and industrial
equipment. Title III, Part B \2\ of EPCA established the Energy
Conservation Program for Consumer Products Other Than Automobiles,
which sets forth a variety of provisions designed to improve energy
efficiency for certain types of consumer products. These products
include rough service lamps, the focus of this document. (42 U.S.C.
6295(l)(4)(A))
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\1\ All references to EPCA in this document refer to the statute
as amended through the EPS Improvement Act of 2017, Public Law 115-
115 (January 12, 2018).
\2\ For editorial reasons, upon codification in the U.S. Code,
Part B was redesignated as Part A.
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On December 26, 2017, DOE issued a final rule codifying at 10 CFR
430.32(bb) statutory backstop requirements applicable to rough service
lamps and vibration service lamps. Prior to the rule, these backstop
requirements were triggered as a result of rough and vibration service
lamps exceeding a previously announced sales threshold and in the
absence of any other energy conservation regulation issued by DOE for
these lamps. In particular, the final rule placed in the Code of
Federal Regulations a statutorily established 40-watt maximum energy
use and packaging limitation for rough and vibration service lamps
manufactured on or after January 25, 2018. DOE subsequently published
an Enforcement Policy Statement announcing a May 1, 2018 compliance
date for the rule.\3\ For rough service lamps, the statute requires the
lamps to: (1) Have a shatter-proof coating or equivalent technology
that complies with NSF/ANSI 51 and is designed to contain the glass if
the glass envelope of the lamp is broken and to provide effective
containment over the life of the lamp; (2) have a maximum 40-watt
limitation; and (3) be sold at retail only in a package containing one
lamp. (42 U.S.C. 6295(l)(4)(D)(ii))
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\3\ DOE's Enforcement Policy Statement can be accessed here:
https://www.energy.gov/sites/prod/files/2018/02/f48/Enforcement%20Policy%20-%202018%20VSL%20RSL.pdf.
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Under 42 U.S.C. 6295(t), DOE may grant to a manufacturer a
temporary exemption from an applicable energy conservation standard if
DOE finds that the annual gross revenues of such manufacturer from all
its operations (including the manufacture and sale of covered products)
does not exceed $8,000,000 for the 12-month period preceding the date
of the application. In making this finding, DOE must account for the
annual gross revenues of any other person who controls, is controlled
by, or is under common control with, such manufacturer (referred to
herein as a ``small business exemption''). (42 U.S.C. 6295(t)(1)) The
Secretary of Energy (Secretary) may not grant a small business
exemption with respect to any type (or class) of covered product
subject to an energy conservation standard unless the Secretary finds,
after obtaining the written views of the Attorney General, that a
failure to allow an exemption would likely result in a lessening of
competition. (42 U.S.C. 6295(t)(2)) See also, subpart E of 10 CFR part
430. A notice of the decision of the Secretary must be published in the
Federal Register along with the reason for denying or granting the
application. 10 CFR 430.56(c)
II. Application for Exemption
On May 23, 2018, Aero-Tech Light Bulb Co. (Aero-Tech) submitted an
application for a small business exemption pursuant to 42 U.S.C.
6295(t) and Subpart E of 10 CFR part 430, requesting an exemption from
the DOE rough service lamps energy conservation standards found in 10
CFR 430.32(bb). Specifically, Aero-Tech requested an exemption from
compliance with the standards until January 25, 2020. The application
indicated that Aero-Tech is an importer and distributor of rough
service light bulbs. In its application, Aero-Tech asked for an
exemption from the standards on the basis of its status as a small
business. According to Aero-Tech, failure to receive a small business
exemption would likely result in a lessening of competition in the
market for lighting companies. In its application, Aero-Tech stated
that, failure to grant an exemption would mean that Aero-Tech would
lose 70% of its business and have to close its doors.
On October 15, 2018, DOE published a notice announcing its receipt
of the application for exemption and solicited comments from interested
parties. 83 FR 51931. In accordance with its regulations, DOE also
transmitted Aero-Tech's application for exemption to the Attorney
General along with: (a) A statement of the facts and of the reasons for
the exemption, and (b) copies of all documents submitted. 10 CFR
430.54. DOE received one comment submitted
[[Page 473]]
by the National Electrical Manufacturers Association (NEMA) which
provided data and supporting factual information relating to rough
service lamp sales.\4\ In its comments, NEMA provided the names of nine
NEMA manufacturers and two non-member companies that sell rough service
lamps. While NEMA did not take a position on the merits of Aero-Tech's
application, NEMA's comments indicated that the demand for rough
service lamps is decreasing as customers are migrating to light-
emitting diode (LED) light bulbs for rough service applications at
higher light output levels.
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\4\ NEMA's comment can be accessed at: https://www.regulations.gov/document?D=EERE-2018-BT-PET-0016-0002.
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III. Consultation with Other Agencies
Per 42 U.S.C. 6295(t)(2), DOE obtained the written views of the
Attorney General concerning Aero-Tech's application for exemption.
Under this statutory provision, DOE may only grant a small business
exemption if it has consulted with the Attorney General and finds that
a lessening of competition would likely result. In its assessment
letter responding to DOE, the Department of Justice (DOJ) concluded
that failure to grant Aero-Tech's application for a small business
exemption for rough service lamps would likely not result in a
lessening of competition. DOJ made this determination after reviewing
Aero-Tech's application, as well as speaking with industry
representatives and reviewing the supplementary information submitted
to DOE by industry representatives. As part of its analysis, DOJ noted
that it applies the standard set forth in 42 U.S.C. 6295(t)(2), and
examines whether failure to grant a small business exemption would
likely result in a lessening of competition, for example, by
substantially limiting consumer choice or increasing industry
concentration.
IV. Order
DOE has no independent basis to come to a different conclusion than
the DOJ with regard to Aero-Tech's request for a small business
exemption. Thus, DOE does not find that Aero-Tech has demonstrated that
a failure to allow the exemption would result in a lessening of
competition, as required under 42 U.S.C. 6295(t)(2). It is Ordered that
the application for a small business exemption submitted on May 23,
2018 by Aero-Tech Light Bulb Co. is denied.
Signed in Washington, DC, on January 17, 2019.
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Daniel R. Simmons,
Assistant Secretary, Energy Efficiency and Renewable Energy.
[FR Doc. 2019-00303 Filed 1-29-19; 8:45 am]
BILLING CODE 6450-01-P