[Federal Register Volume 87, Number 89 (Monday, May 9, 2022)]
[Rules and Regulations]
[Pages 27439-27461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09477]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 87, No. 89 / Monday, May 9, 2022 / Rules and
Regulations
[[Page 27439]]
DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2021-BT-STD-0005]
RIN 1904-AF09
Energy Conservation Program: Energy Conservation Standards for
General Service Lamps
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final rule.
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SUMMARY: In this final rule, the U.S. Department of Energy (``DOE'') is
codifying in the Code of Federal Regulations the 45 lumens per watt
(``lm/W'') backstop requirement for general service lamps (``GSLs'')
that Congress prescribed in the Energy Policy and Conservation Act, as
amended. DOE has determined this backstop requirement applies because
DOE failed to complete a rulemaking regarding GSLs in accordance with
certain statutory criteria. This final rule represents a departure from
DOE's previous determination published in 2019 that the backstop
requirement was not triggered.
DATES: The effective date of this rule is July 25, 2022.
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.
The docket web page can be found at www.regulations.gov/docket/EERE-2021-BT-STD-0005. The docket web page contains 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) 287-1445 or by
email: [email protected].
FOR FURTHER INFORMATION CONTACT:
Dr. Stephanie Johnson, 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) 287-1943. Email: [email protected].
Ms. Celia Sher, U.S. Department of Energy, Office of the General
Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121.
Telephone: (202) 287-6122. Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Authority
B. March 2016 Notice of Proposed Rulemaking and October 2016
Notice of Proposed Definition and Data Availability
C. January 2017 Final Rules
D. September 2019 Withdrawal Rule and December 2019 Final
Determination
E. Subsequent Review
II. Final Rule
A. Statutory Backstop Requirement
1. Prior Consideration of the Backstop Requirement
a. Prior to the September 2019 Withdrawal Rule
b. September 2019 Withdrawal Rule and the December 2019 Final
Determination
2. Proposed Determination Regarding Operation of the Backstop
Requirement
3. Discussion of Comments and Final Determination Regarding
Operation of the Backstop
B. Scope of Backstop Requirement
C. Implementation and Enforcement
1. Prompt Enforcement
2. Phased-In Enforcement
3. Consumer Education
D. Impacts
1. Market Trends and Energy Savings
2. Benefits and Costs
3. Features of LED Lamps
4. Potential Health and Safety Concerns
III. Conclusion
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
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. Congressional Notification
V. Approval of the Office of the Secretary
I. Introduction
The following section briefly discusses the statutory authority
underlying this final rule, as well as some of the relevant historical
background related to the statutory backstop requirement.
A. Authority
The Energy Policy and Conservation Act, as amended (``EPCA''),\1\
authorizes DOE to regulate the energy efficiency of a number of
consumer products and certain industrial equipment. (42 U.S.C. 6291-
6317) Title III, Part B \2\ of EPCA established the Energy Conservation
Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-
6309) These products include GSLs, the subject of this document. (42
U.S.C. 6295(i)(6))
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\1\ All references to EPCA in this document refer to the statute
as amended through the Infrastructure Investment and Jobs Act,
Public Law 117-58 (Nov. 15, 2021).
\2\ For editorial reasons, upon codification in the U.S. Code,
Part B was redesignated Part A.
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EPCA directs DOE to conduct two rulemaking cycles to evaluate
energy conservation standards for GSLs.\3\ (42 U.S.C. 6295(i)(6)(A)-
(B)) For the first rulemaking cycle, EPCA directs DOE to initiate a
rulemaking process prior to January 1, 2014, to determine whether: (1)
To amend energy conservation standards for GSLs and (2) the
[[Page 27440]]
exemptions for certain incandescent lamps should be maintained or
discontinued. (42 U.S.C. 6295(i)(6)(A)(i)) The rulemaking is not
limited to incandescent lamp technologies and must include a
consideration of a minimum standard of 45 lm/W for GSLs. (42 U.S.C.
6295(i)(6)(A)(ii)) EPCA provides that if the Secretary determines that
the standards in effect for general service incandescent lamps
(``GSIL'') should be amended, a final rule must be published by January
1, 2017, with a compliance date at least 3 years after the date on
which the final rule is published. (42 U.S.C. 6295(i)(6)(A)(iii)) The
Secretary must also consider phased-in effective dates after
considering certain manufacturer and retailer impacts. (42 U.S.C.
6295(i)(6)(A)(iv)) If DOE fails to complete a rulemaking in accordance
with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), or if a final rule from the first
rulemaking cycle does not produce savings greater than or equal to the
savings from a minimum efficacy standard of 45 lm/W, the statute
provides a ``backstop'' under which DOE must prohibit sales of GSLs
that do not meet a minimum 45 lm/W standard. (42 U.S.C.
6295(i)(6)(A)(v))
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\3\ GSLs are defined in EPCA to include GSILs, compact
fluorescent lamps (``CFLs''), general service light-emitting diode
(``LED'') lamps and organic light emitting diode (``OLED'') lamps,
and any other lamps that the Secretary of Energy (Secretary)
determines are used to satisfy lighting applications traditionally
served by general service incandescent lamps. (42 U.S.C.
6291(30)(BB)(i)) The term ``general service lamp'' does not include
any of the 22 lighting applications or bulb shapes explicitly not
included in the definition of ``general service incandescent lamp,''
or any general service fluorescent lamp or incandescent reflector
lamp. (42 U.S.C. 6291(30)(BB)(ii))
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EPCA further directs DOE to initiate a second rulemaking cycle by
January 1, 2020, to determine whether standards in effect for GSILs
(which are a subset of GSLs)) should be amended with more stringent
maximum wattage requirements than EPCA specifies, and whether the
exemptions for certain incandescent lamps should be maintained or
discontinued. (42 U.S.C. 6295(i)(6)(B)(i)) As in the first rulemaking
cycle, the scope of the second rulemaking is not limited to
incandescent lamp technologies. (42 U.S.C. 6295(i)(6)(B)(ii))
B. March 2016 Notice of Proposed Rulemaking and October 2016 Notice of
Proposed Definition and Data Availability
Pursuant to its statutory authority, DOE published a notice of
proposed rulemaking (``NOPR'') on March 17, 2016, that addressed the
first question that Congress directed it to consider--whether to amend
energy conservation standards for GSLs (``March 2016 NOPR''). 81 FR
14528, 14629-14630 (Mar. 17, 2016). In the March 2016 NOPR, DOE stated
that it would be unable to undertake any analysis regarding GSILs and
other incandescent lamps because of a then-applicable congressional
restriction (``the Appropriations Rider''). See 81 FR 14528, 14540-
14541. The Appropriations Rider prohibited expenditure of funds
appropriated by that law to implement or enforce: (1) 10 Code of
Federal Regulations (``CFR'') 430.32(x), which includes maximum wattage
and minimum rated lifetime requirements for GSILs; and (2) standards
set forth in section 325(i)(1)(B) of EPCA (42 U.S.C. 6295(i)(1)(B)),
which sets minimum lamp efficiency ratings for incandescent reflector
lamps (``IRLs''). Under the Appropriations Rider, DOE was restricted
from undertaking the analysis required to address the first question
presented by Congress, but was not so limited in addressing the second
question--that is, DOE was not prevented from determining whether the
exemptions for certain incandescent lamps should be maintained or
discontinued. To address that second question, DOE published a Notice
of Proposed Definition and Data Availability (``NOPDDA''), which
proposed to amend the definitions of GSIL, GSL, and related terms
(``October 2016 NOPDDA''). 81 FR 71794, 71815 (Oct. 18, 2016). Notably,
the Appropriations Rider, which was originally adopted in 2011 and
readopted and extended continuously in multiple subsequent legislative
actions, expired on May 5, 2017, when the Consolidated Appropriations
Act, 2017 was enacted.\4\
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\4\ See Consolidated Appropriations Act of 2017 (Pub. L. 115-31,
div. D, tit. III); see also Consolidated Appropriations Act, 2018
(Pub. L. 115-141).
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C. January 2017 Final Rules
On January 19, 2017, DOE published two final rules concerning the
definitions of GSL, GSIL, and related terms (``January 2017 Definition
Final Rules''). 82 FR 7276; 82 FR 7322. The January 2017 Definition
Final Rules amended the definitions of GSIL and GSL by bringing certain
categories of lamps that had been excluded by statute from the
definition of GSIL within the definitions of GSIL and GSL. DOE
determined to use two final rules in 2017 to amend the definitions of
GSIL and GSLs in order to address the majority of the definition
changes in one final rule and the exemption for IRLs in the second
final rule. These two rules were issued simultaneously, with the first
rule eschewing a determination regarding the existing exemption for
IRLs in the definition of GSL and the second rulemaking discontinuing
that exemption from the GSL definition. 82 FR 7276, 7312; 82 FR 7322,
7323. As in the October 2016 NOPDDA, DOE stated that the January 2017
Definition Final Rules related only to the second question that
Congress directed DOE to consider, regarding whether to maintain or
discontinue ``exemptions'' for certain incandescent lamps. 82 FR 7276,
7277; 82 FR 7322, 7324 (See also 42 U.S.C. 6295(i)(6)(A)(i)(II)). That
is, neither of the two final rules issued on January 19, 2017,
established energy conservation standards applicable to GSLs. DOE
explained that the Appropriations Rider prevented it from establishing,
or even analyzing, standards for GSILs. 82 FR 7276, 7278. Instead, DOE
explained that it would either impose standards for GSLs in the future
pursuant to its authority to develop GSL standards, or apply the
backstop standard prohibiting the sale of lamps not meeting a 45 lm/W
efficacy standard. 82 FR 7276, 7277-7278. The two final rules were to
become effective as of January 1, 2020.
D. September 2019 Withdrawal Rule and December 2019 Final Determination
On March 17, 2017, the National Electrical Manufacturer's
Association (``NEMA'') filed a petition for review of the January 2017
Definition Final Rules in the U.S. Court of Appeals for the Fourth
Circuit. National Electrical Manufacturers Association v. United States
Department of Energy, No. 17-1341. NEMA claimed that DOE ``amend[ed]
the statutory definition of `general service lamp' to include lamps
that Congress expressly stated were `not include[d]' in the
definition'' and adopted an ``unreasonable and unlawful interpretation
of the statutory definition.'' Pet. 2. Prior to merits briefing, the
parties reached a settlement agreement under which DOE agreed, in part,
to issue a notice of data availability requesting data for GSILs and
other incandescent lamps to assist DOE in determining whether standards
for GSILs should be amended (the first question of the rulemaking
required by 42 U.S.C. 6295(i)(6)(A)(i)).
With the removal of the Appropriations Rider in the Consolidated
Appropriations Act, 2017, DOE was no longer restricted from undertaking
the analysis and decision-making required to address the first question
presented by Congress, i.e., whether to amend energy conservation
standards for general service lamps, including GSILs. Thus, on August
15, 2017, DOE published a notice of data availability and request for
information (``NODA'') seeking data for GSILs and other incandescent
lamps (``August 2017 NODA''). 82 FR 38613.
The purpose of the August 2017 NODA was to assist DOE in
determining whether standards for GSILs should be amended. (42 U.S.C.
6295(i)(6)(A)(i)(I)) Comments submitted in response to the August 2017
NODA also led DOE to re-
[[Page 27441]]
consider the decisions it had already made with respect to the second
question presented to DOE--whether the exemptions for certain
incandescent lamps should be maintained or discontinued. 84 FR 3120,
3122 (See also 42 U.S.C. 6295(i)(6)(A)(i)(II)) As a result of the
comments received in response to the August 2017 NODA, DOE also re-
assessed the legal interpretations underlying certain decisions made in
the January 2017 Definition Final Rules. Id.
On February 11, 2019, DOE published a NOPR proposing to withdraw
the revised definitions of GSL, GSIL, and the new and revised
definitions of related terms that were to go into effect on January 1,
2020 (``February 2019 Definition NOPR''). 84 FR 3120. In a final rule
published September 5, 2019, DOE finalized the withdrawal of the
definitions in the January 2017 Definition Final Rules and maintained
the existing regulatory definitions of GSL and GSIL, which are the same
as the statutory definitions of those terms (``September 2019
Withdrawal Rule''). 84 FR 46661. The September 2019 Withdrawal Rule
revisited the same primary question addressed in the January 2017
Definition Final Rules, namely, the statutory requirement for DOE to
determine whether ``the exemptions for certain incandescent lamps
should be maintained or discontinued.'' 42 U.S.C. 6295(i)(6)(A)(i)(II)
(See also 84 FR 46661, 46667). In the rule, DOE also addressed its
interpretation of the statutory backstop at 42 U.S.C. 6295(i)(6)(A)(v)
and concluded the backstop had not been triggered. 84 FR 46661, 46663-
46664. DOE reasoned that 42 U.S.C. 6295(i)(6)(A)(iii) ``does not
establish an absolute obligation on the Secretary to publish a rule by
a date certain.'' 84 FR 46661, 46663. ``Rather, the obligation to issue
a final rule prescribing standards by a date certain applies if, and
only if, the Secretary makes a determination that standards in effect
for GSILs need to be amended.'' Id. DOE further stated that, since it
had not yet made the predicate determination on whether to amend
standards for GSILs, the obligation to issue a final rule by a date
certain did not yet exist and, as a result, the condition precedent to
the potential imposition of the backstop requirement did not yet exist
and no backstop requirement had yet been triggered. Id. at 84 FR 46664.
Similar to the January 2017 Definition Final Rules, the September
2019 Withdrawal Rule clarified that DOE was not determining whether
standards for GSLs, including GSILs, should be amended. DOE stated it
would make that determination in a separate rulemaking. Id. at 84 FR
46662. DOE initiated that separate rulemaking by publishing a notice of
proposed determination (``NOPD'') on September 5, 2019, regarding
whether standards for GSILs should be amended (``September 2019
NOPD''). 84 FR 46830. In conducting its analysis for that notice, DOE
used the data and comments received in response to the August 2017 NODA
and relevant data and comments received in response to the February
2019 Definition NOPR, and DOE tentatively determined that the current
standards for GSILS do not need to be amended because more stringent
standards are not economically justified. Id. at 84 FR 46831. DOE
finalized that tentative determination on December 27, 2019 (``December
2019 Final Determination''). 84 FR 71626. DOE also concluded in the
December 2019 Final Determination that, because it had made the
predicate determination not to amend standards for GSILs, there was no
obligation to issue a final rule by January 1, 2017, and, as a result,
the backstop requirement had not been triggered. Id. at 84 FR 71636.
Two petitions for review were filed in the U.S. Court of Appeals
for the Second Circuit challenging the September 2019 Withdrawal Rule.
The first petition was filed by 15 States,\5\ New York City, and the
District of Columbia. See New York v. U.S. Department of Energy, No.
19-3652 (2d Cir., filed Nov. 4, 2019). The second petition was filed by
six organizations \6\ that included environmental, consumer, and public
housing tenant groups. See Natural Resources Defense Council v. U.S.
Department of Energy, No. 19-3658 (2d Cir., filed Nov. 4, 2019). The
petitions were subsequently consolidated. Merits briefing has been
concluded, but the case has not been argued or submitted to the Circuit
panel for decision. The case has been in abeyance since March 2021,
pending further rulemaking by DOE.
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\5\ The petitioning States are the States of New York,
California, Colorado, Connecticut, Illinois, Maryland, Maine,
Michigan, Minnesota, New Jersey, Nevada, Oregon, Vermont, and
Washington and the Commonwealth of Massachusetts.
\6\ The petitioning organizations are the Natural Resource
Defense Council, Sierra Club, Consumer Federation of America,
Massachusetts Union of Public Housing Tenants, Environment America,
and U.S. Public Interest Research Group.
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Additionally, in two separate petitions also filed in the Second
Circuit, groups of petitioners that were essentially identical to those
that filed the lawsuit challenging the September 2019 Withdrawal Rule
challenged the December 2019 Final Determination. See Natural Resources
Defense Council v. U.S. Department of Energy, No. 20-699 (2d Cir.,
filed Feb, 25, 2020); New York v. U.S. Department of Energy, No. 20-743
(2d Cir., filed Feb. 28, 2020). On April 2, 2020, those cases were put
into abeyance pending the outcome of the September 2019 Withdrawal Rule
petitions.
E. Subsequent Review
On January 20, 2021, President Biden issued Executive Order
(``E.O.'') 13990, ``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis.'' 86 FR 7037 (Jan. 25,
2021). Section 1 of that Order lists a number of policies related to
the protection of public health and the environment, including reducing
greenhouse gas emissions and bolstering the Nation's resilience to
climate change. Id. at 7041. Section 2 of the Order instructs all
agencies to review ``existing regulations, orders, guidance documents,
policies, and any other similar agency actions promulgated, issued, or
adopted between January 20, 2017, and January 20, 2021, that are or may
be inconsistent with, or present obstacles to, [these policies].'' Id.
Agencies are then directed, as appropriate and consistent with
applicable law, to consider suspending, revising, or rescinding these
agency actions and to immediately commence work to confront the climate
crisis. Id.
In accordance with E.O. 13990, on May 25, 2021, DOE published a
request for information (``RFI'') initiating a re-evaluation of its
prior determination that the Secretary was not required to implement
the statutory backstop requirement for GSLs (``May 2021 RFI''). 86 FR
28001. DOE solicited information regarding the availability of lamps
that would satisfy a minimum efficacy standard of 45 lm/W, as well
other information that may be relevant to a possible implementation of
the statutory backstop. Id. On December 13, 2021, DOE published a NOPR
proposing to codify in the CFR the 45 lm/W backstop requirement for
GSLs and welcomed comments on the proposal (``December 2021 NOPR''). 86
FR 70755.
DOE received comments in response to the December 2021 NOPR from
the interested parties listed in Table I.1.
[[Page 27442]]
Table I.1--Written Comments Received in Response to the December 2021
NOPR
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Commenter(s) Abbreviation Commenter type
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American Lighting Association.... ALA............... Trade
Association.
Amy Glass........................ Glass............. Individual
commenter.
Anonymous........................ Anonymous......... Individual
commenter.
Anonymous........................ Anonymous......... Individual
commenter.
Anonymous........................ Anonymous......... Individual
commenter.
Anonymous........................ Anonymous......... Individual
commenter.
Anonymous........................ Anonymous......... Individual
commenter.
Appliance Standards Awareness ASAP et al........ Energy Efficiency
Project, American Council for an Organization;
Energy-Efficient Economy, State Official/
Alliance of Nurses for Healthy Agency.
Environments, Alliance to Save
Energy, The California
Efficiency + Demand Management
Council, Center for Biological
Diversity, Climate Smart
Missoula, Colorado Energy
Office, Consumer Federation of
America, E4TheFuture, Energy
Efficiency Alliance of New
Jersey, Campaign for 100%
Renewable Energy, Environment
America, Evergreen Action, Green
Energy Consumers Alliance,
Interfaith Power & Light, Maine
Department of Environmental
Protection, Montana
Environmental Information
Center, National Consumer Law
Center, Northeast Energy
Efficiency Partnership, Nevada
Governor's Office of Energy,
Nevada Legislature, New
Buildings Institute, Northwest
Energy Coalition, Carbon-Free
Buildings RMI, Southwest Energy
Efficiency Project (``SWEEP''),
Urban Green Council, Utah Clean
Energy, Vermont Energy
Investment Corporation,
Washington Department of
Commerce.
Attorneys General of New York, Attorneys General. State Official/
California, Colorado, Illinois, Agency.
Maine, Maryland, Michigan,
Minnesota, Nevada, New Jersey,
New Mexico, Oregon, Vermont,
Washington, The Commonwealth of
Massachusetts, The District of
Columbia, and The City of New
York.
California Energy Commission..... CEC............... State Official/
Agency.
Pacific Gas and Electric Company, CA IOUs........... Utilities.
San Diego Gas & Electric
Company, Southern California
Edison.
Center for Energy and Environment Free Market Consumer Advocacy
Competitive Enterprise Organizations. Organizations.
Institute, Regulatory Action
Center FreedomWorks Foundation,
JunkScience.com, Project 21,
Center for Energy &
Environmental Policy Caesar
Rodney Institute, Rio Grande
Foundation, The Cornwall
Alliance for the Stewardship of
Creation, Americans for Limited
Government, Institute for Energy
Research, National Center for
Public Policy Research,
Roughrider Policy Center, 60
Plus Association, Independent
Women's Forum, Committee for a
Constructive Tomorrow,
Independent Women's Voice.
Consumer Federation of America, CFA and NCLC...... Consumer Advocacy
The National Consumer Law Center. Organizations.
David Maier...................... Maier............. Individual
commenter.
David Walton..................... Walton............ Individual
commenter.
Edison Electric Institute........ EEI............... Utilities.
GE Lighting, a Savant Company.... GE Lighting....... Manufacturer.
Institute for Policy Integrity IPI et al......... Energy Efficiency
(``IPI'') at NYU School of Law, Organizations.
Montana Environmental
Information Center, Natural
Resources Defense Council,
Sierra Club, Union of Concerned
Scientists.
Jean Sherman..................... Sherman........... Individual
commenter.
Lutron Electronics Co., Inc...... Lutron............ Manufacturer.
Minimise USA..................... Minimise USA...... Energy Efficiency
Services
Company.
National Association of State NASEO............. State Official/
Energy Officials. Agency.
National Electrical Manufacturers NEMA.............. Trade
Association. Association.
National Retail Federation, NRF and RILA...... Trade
Retail Industry Leaders Association.
Association.
New York State Energy Research NYSERDA........... State Official/
and Development Authority. Agency.
Northwest Energy Efficiency NEEA.............. Energy Efficiency
Alliance. Organization.
Northwest Power and Conservation NPC Council....... State
Council. Organization.
Project 21--National Research for Project 21........ Research
Public Policy Research. Organization.
Sierra Club, National Resources SC, NRDC, and EJ.. Energy Efficiency
Defense Council, Earthjustice. Organizations.
VALU Home Centers................ VALU Home Centers. Retailer.
William Hough.................... Hough............. Individual
commenter.
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The comments received on the December 2021 NOPR are summarized and
addressed in the following section. A parenthetical reference at the
end of a comment quotation or paraphrase provides the location of the
item in the public record.\7\
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\7\ The parenthetical reference provides a reference for
information located in the docket of DOE's re-evaluation of the
statutory backstop for GSLs. (Docket No. EERE-2021-BT-STD-0005,
which is maintained at www.regulations.gov). The references are
arranged as follows: (Commenter name, comment docket ID number at
page of that document).
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II. Final Rule
In this final rule, DOE has determined that the 45 lm/W backstop
requirement for GSLs at 42 U.S.C. 6295(i)(6)(A)(v) has been triggered
because of DOE's failure to complete the first phase of
[[Page 27443]]
rulemaking in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), and
because the final rules that DOE published did not produce savings that
are greater than or equal to the savings from a minimum efficacy
standard of 45 lm/W. As a result of this failure to complete certain
rulemakings, EPCA dictates that DOE prohibit sales of GSLs that do not
meet a minimum 45 lm/W standard. (42 U.S.C. 6295(i)(6)(A)(v))
A. Statutory Backstop Requirement
As described in section I.A of this document, EPCA specifies
several criteria that DOE must adhere to in its first rulemaking cycle
for GSLs. (See 42 U.S.C. 6295(i)(6)(A)(i)-(iv)) If DOE fails to
complete a rulemaking in accordance with clauses (i) through (iv) of 42
U.S.C. 6295(i)(6)(A) or if the final rule does not produce savings that
are greater than or equal to the savings from a minimum efficacy
standard of 45 lm/W, clause (v) requires DOE to prohibit sales of lamps
with an efficacy below 45 lm/W ``effective beginning January 1, 2020.''
1. Prior Consideration of the Backstop Requirement
a. Prior to the September 2019 Withdrawal Rule
In the March 2016 NOPR proposing energy conservation standards for
GSLs, DOE explicitly addressed the backstop provision at 42 U.S.C.
6295(i)(6)(A)(v). 81 FR 14528 (March 17, 2016). Specifically, DOE
stated that due to the Appropriations Rider, DOE was unable to perform
the analysis required in clause (i) of 42 U.S.C. 6295(i)(6)(A) and as a
result, the backstop in 42 U.S.C. 6295(i)(6)(A)(v) is automatically
triggered. 81 FR 14528, 14540. DOE reiterated that it was not
considering GSILs, including exclusions or exemptions, in the
rulemaking due to the Appropriations Rider. 81 FR 14528, 14582. DOE
further explained that under 42 U.S.C. 6295(i)(6)(A)(v), if it failed
to (1) complete a rulemaking in accordance with clauses (i) through
(iv), which included determining whether the exemptions for certain
incandescent lamps should be maintained or discontinued, or (2) publish
a final rule that would meet or exceed the energy savings associated
with the statutory 45 lm/W requirement, then the backstop would be
triggered beginning January 1, 2020. Id. Thus, in the March 2016 NOPR,
DOE assumed that the backstop would be triggered beginning January 1,
2020. Id. Further, DOE stated that lamps that meet the proposed GSL
definition would be subject to the 45 lm/W efficacy level and estimated
an associated energy savings of approximately 3 quadrillion Btu
(``quads'') for lamps sold in 2020-2049 and a carbon reduction of
approximately 200 million metric tons by 2030. 81 FR 14528, 14534.
In the January 2017 Definition Final Rules, DOE did not interpret
paragraph (6)(A) as requiring DOE to establish amended standards for
GSLs. 82 FR 7276, 7283. DOE stated that clause (v) expressly
contemplates the possibility that DOE would not finalize a rule that
develops alternative standards for GSLs. Id. In these rules, DOE did
not make any determination regarding standards for GSLs. 82 FR 7278,
7316. DOE acknowledged that the backstop would go into effect if DOE
failed to complete the rulemaking as prescribed by EPCA by January 1,
2017, or the final rule did not produce savings that are greater than
or equal to the savings from a minimum efficacy standard of 45 lm/W.
Id. While not explicitly stating its assumption that the backstop
requirement would be triggered, DOE set a January 1, 2020, effective
date for the definitions rule, which coincided with the effective date
of the statutory backstop requirement. DOE also noted its commitment to
working with manufacturers to ensure a successful transition if the
backstop standard went into effect. To that end, on January 18, 2017,
DOE issued a ``Statement Regarding Enforcement of 45 LPW General
Service Lamp Standard'' (``January 2017 Enforcement Statement'')
stating that EPCA requires that, effective beginning January 1, 2020,
DOE shall prohibit the sale of any GSL that does not meet a minimum
efficacy standard of 45 lm/W.\8\ In the enforcement statement, DOE
advised that it could issue a policy that provides additional time
allowing for the necessary flexibility for manufacturers to comply with
the 45 lm/W standard. Id.
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\8\ Available at www.energy.gov/sites/default/files/2017/01/f34/Statement%20on%20Enforcement%20of%20GSL%20Standard%20-%201.18.2017.pdf.
---------------------------------------------------------------------------
b. September 2019 Withdrawal Rule and the December 2019 Final
Determination
In the September 2019 Withdrawal Rule, DOE concluded that the
backstop requirement had not been triggered. 84 FR 46661, 46664. DOE
stated that it initiated the first GSL standards rulemaking process by
publishing a notice of availability of a framework document in December
2013, satisfying the requirements in 42 U.S.C. 6295(i)(6)(A)(i) to
initiate a rulemaking by January 1, 2014. 84 46661, 46663. DOE further
stated its belief that Congress intended for the Secretary to make a
predicate determination about GSILs, and that the obligation to issue a
final rule prescribing standards by a date certain applies if, and only
if, the Secretary makes a determination that standards in effect for
GSILs need to be amended. 84 FR 46661, 46663-46664. Since DOE had not
yet made the predicate determination on whether to amend standards for
GSILs, DOE found the obligation to issue a final rule by a date certain
did not yet exist and, as a result, the condition precedent to the
potential imposition of the backstop requirement did not yet exist and
no backstop requirement had yet been triggered. Id.
In the December 2019 Final Determination, DOE reiterated its
interpretation that the statutory deadline for the Secretary to
complete a rulemaking for GSILs in 42 U.S.C. 6295(i)(6)(A)(iii) does
not establish an absolute obligation on the Secretary to publish a rule
by a date certain. 84 FR 71626, 71635. Instead, DOE stated that this
deadline applies only if the Secretary makes a determination that
standards for GSILs should be amended. Id. at 84 FR 71636. Otherwise,
DOE again stated, it could result in a situation where a prohibition is
automatically triggered for a category of lamps for which no new
standards, much less prohibition, are necessary. Id. In the December
2019 Final Determination, since DOE made what it characterized as the
predicate determination that standards for GSILs do not need to be
amended, DOE found that the obligation to issue a final rule by a date
certain did not exist and, as a result, the condition precedent to the
potential imposition of the backstop requirement did not exist and no
backstop requirement had been triggered. Id.
2. Proposed Determination Regarding Operation of the Backstop
Requirement
As presented in the December 2021 NOPR, Congress identified two
circumstances that would trigger application of the backstop
requirement: (1) If DOE ``fails to complete a rulemaking in accordance
with clauses (i) through (iv)'' of section 6295(i)(6)(A); or (2) ``if
the final rule'' promulgated under this rulemaking ``does not produce
savings that are greater than or equal to the savings from a minimum
efficacy standard of 45 lumens per watt.'' 86 FR 70755, 70760; 42
U.S.C. 6295(i)(6)(A)(v). In the December 2021 NOPR, DOE tentatively
determined that the backstop requirement has been triggered because
both of the foregoing circumstances have occurred. Id.
[[Page 27444]]
DOE explained in the December 2021 NOPR that it failed to complete
the first cycle of rulemaking in accordance with clauses (i) through
(iv) of 42 U.S.C. 6295(i)(6)(A) for at least two reasons. Id. The first
reason is that DOE failed to complete this first GSL rulemaking in a
timely manner. The structure of section 6295(i)(6)(A) reflects an
expectation by Congress that by January 1, 2017, the outcome of DOE's
GSL rulemaking would have been known, and, if either amended standards
or the backstop were to be applicable, those would be in place no later
than January 1, 2020. Id.
DOE also stated in the December 2021 NOPR, that the position it
advanced in the September 2019 Withdrawal Rule and the December 2019
Final Determination--namely, that the backstop provision is premised on
the Secretary first making a determination that standards for GSILs
should be amended and that the statute does not impose a deadline for
the GSIL determination--fails to give meaning to all of the surrounding
statutory text, as DOE is obligated to do. See 84 FR 46661, 46663-
46664; 84 FR 71626, 71635; see also 42 U.S.C. 6295(i)(6)(A)(iii). DOE
stated that in looking at the surrounding context of sections
6295(i)(6)(A) and 6295(i)(6)(B), it is clear that Congress intended
DOE's first GSL rulemaking to be completed by January 1, 2017--
primarily due to Congress providing interested parties a gap of time
between the conclusion of this rulemaking and the deadline for
compliance, thus giving interested parties time to adjust to any
changes. Id.
DOE explained in the December 2021 NOPR that in section
6295(i)(6)(A), Congress explicitly contemplated two possible outcomes:
(1) A final rule amending standards for GSLs, or (2) imposition of the
backstop of 45 lm/W. Under the first scenario, DOE would have been
obligated to publish a final rule by January 1, 2017, with an effective
date no earlier than three years after publication--thereby giving
manufacturers a three-year lead time to prepare for the changed
standards. See 42 U.S.C. 6295(i)(6)(A)(iii). Under the second scenario,
the backstop would come into effect, but not until January 1, 2020--
giving manufacturers the same three-year lead time to adjust to the
forthcoming efficacy standard of 45 lm/W. See Id. at 42 U.S.C.
6295(i)(6)(A)(v). 86 FR 70755, 70760-61.
DOE further stated in the December 2021 NOPR that even if the
statute contemplated a third possible scenario--a determination by DOE
that standards for GSLs need not be amended under which the backstop
was not triggered--it is clear from section 6295(i)(6)(A) that Congress
expected this determination would be made no later than January 1,
2017. 86 FR 70755, 70761.
DOE also made the case in the December 2021 NOPR that this
allowance for lead time is reflected in the preemption exception
provision in section 6295(i)(6)(A)(vi), which gives California and
Nevada the authority to adopt, with an effective date beginning January
1, 2018 or after, either:
(1) A final rule adopted by the Secretary in accordance with 42
U.S.C. 6295(i)(6)(A)(i)-(iv);
(2) If a final rule has not been adopted in accordance with 42
U.S.C. 6295(i)(6)(A)(i)-(iv), the backstop requirement under 42 U.S.C.
6295(i)(6)(A)(v); or
(3) In the case of California, if a final rule has not been adopted
in accordance with 42 U.S.C. 6295(i)(6)(A)(i)-(iv), any California
regulations related to ``these covered products'' adopted pursuant to
state statute in effect as of the date of enactment of the Energy
Independence and Security Act of 2007.
This provision allows California and Nevada to implement either a
final DOE rule amending standards for GSLs or the 45 lm/W backstop
standard on January 1, 2018, two years earlier than the rest of the
country. This provision thus assumes that California and Nevada would
have to have known whether DOE had completed a final rule amending
standards for GSLs by January 1, 2017, so that manufacturers subject to
standards in those states would have a practicable one-year lead time
to comply. Id.
Lastly, DOE stated in the December 2021 NOPR that Congress' mandate
in 42 U.S.C. 6295(i)(6)(B) that DOE initiate the second cycle of
rulemaking by January 1, 2020, coincides with a schedule in which
standards are adopted (or the backstop is implicated by January 1,
2017, with a minimum three-year lead time. Id.
DOE also tentatively determined in the December 2021 NOPR that in
addition to failing to complete the first cycle of rulemaking timely,
the second reason why DOE's rulemaking was not ``in accordance with
clauses (i) through (iv)'' of section 6295(i)(6)(A) is because DOE's
rulemaking did not ``consider[ ] a minimum standard of 45 lumens per
watt for general service lamps'' as required under 42 U.S.C.
6295(i)(6)(A)(ii)(II). 86 FR 70761. DOE considered GSILs only in the
scope of the December 2019 Final Determination analysis, with lamps
having a maximum efficacy less than 45 lumens per watt. Id. While DOE
did not analyze lamps other than GSILs in the scope of the December
2019 Final Determination analysis, DOE did look at the impact on GSIL
shipments as a result of consumers choosing to purchase other lamps,
such as compact fluorescent lamps (``CFLs'') and light-emitting diode
(``LED'') lamps, if standards for GSILs were amended as discussed in
section VI.A of the December 2019 Final Determination. Therefore, DOE
preliminarily concluded in the December 2021 NOPR that it could not
have considered a 45 lumens per watt standard level as part of that
rulemaking determination because of the GSIL limited scope. Id.
DOE explained in the December 2021 NOPR that although DOE's failure
to ``complete a rulemaking in accordance with clauses (i) through
(iv)'' is itself sufficient to trigger application of the backstop, DOE
also did not determine whether its final rule (or rules) in this first
cycle of rulemaking produced savings that are ``greater than or equal
to the savings from a minimum efficacy standard of 45 lm/W[.]'' 42
U.S.C. 6295(i)(6)(A)(v). That is an independent basis for application
of the backstop under section 6295(i)(6)(v). Congress provided that the
backstop would be triggered ``if the final rule does not produce energy
savings that are greater than or equal to the savings from a minimum
efficacy standard of 45 lm/W.'' Id. Since DOE did not compare whether
any energy savings resulting from either the September 2019 Withdrawal
Rule or the December 2019 Final Determination would produce energy
savings that are greater than or equal to a minimum efficacy standard
of 45 lm/W, DOE preliminary determined in the December 2021 NOPR that
the backstop requirement in section 6295(1)(6)(A)(v) was triggered.\9\
Id.
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\9\ Although DOE did perform various energy savings analyses in
the December 2019 Final Determination, it was not the comparison to
a 45 lumens per watt efficacy standard required by 42 U.S.C.
6295(i)(6)(A)(v). See, e.g., 84 FR 71632 (``The no-new-standards
case represents a projection of energy consumption that reflects how
the market for a product would likely evolve in the absence of
amended energy conservation standards. In this case, the standards
case represents energy savings not from the technology outlined in a
[trial standard level], but from product substitution as consumers
are priced out of the market for GSILs.'').
---------------------------------------------------------------------------
For the foregoing reasons, DOE determines that the backstop
requirement in 42 U.S.C. 6295(i)(6)(A)(v) was triggered and should have
been effective as of January 1, 2020 because DOE failed to complete a
GSL rulemaking in accordance with certain statutory criteria.
[[Page 27445]]
3. Discussion of Comments and Final Determination Regarding Operation
of the Backstop
In response to the December 2021 NOPR, NEMA encouraged DOE to
review its past comments regarding implementation of the backstop.
(NEMA, No. 51 at p. 2) DOE notes that in the September 2019 Withdrawal
Rule proceeding, NEMA commented that the backstop standard had not be
triggered because the Secretary had not determined whether to amend
GSIL standards under 42 U.S.C. 6295(i)(6)(A)(iii). In that proceeding,
NEMA also commented that the backstop standard is not self-executing
and requires the Secretary to issue a prohibitory order. NEMA asserted
that the Secretary had not issued such an order because the Secretary
had not failed to complete a rulemaking in accordance with clauses (i)
through (iv) or that such final rule does not produce savings that are
greater than or equal to the savings from a minimum efficacy standard
of 45 lm/W because the obligation to issue such a rule did not yet
exist. 84 FR 46661, 46663.
Further, in response to the December 2021 NOPR, the Free Market
Organizations stated opposition to DOE's proposed implementation of the
45 lm/W backstop because it bypasses consumer protections in EPCA and
adversely impacts product cost, choice, and features. (Free Market
Organizations, No. 65 at p. 2) They asserted that if Congress wanted
the 45 lm/W backstop to be applicable to all GSILs as of January 1,
2020, it could have stated so clearly and succinctly, as EPCA is
replete with such statutorily-imposed minimum efficiency standards for
home appliances that automatically take effect on the date specified.
The Free Market Organizations asserted that in the case of GSLs, the
statute delineates agency actions that are preconditions to any
triggering of the 45 lm/W backstop requirement, namely that DOE
determine that existing standards need to be amended and then either
fails to amend the standards or sets a standard weaker than would have
been achieved by the backstop. The Free Market Organizations asserted
that DOE never made the threshold determination and thus the 45 lm/W
backstop does not apply. (Free Market Organizations, No. 65 at p. 3)
DOE received comments from the Attorneys General, NPC Council, ASAP
et al., and SC, NRDC, and EJ in support of DOE's tentative conclusion
in the December 2021 NOPR that the backstop had been triggered.
(Attorneys General, No. 60 at p. 2; NPC Council, No. 46 at p. 2; ASAP
et al., No. 63 at p. 2; SC, NRDC, and EJ, No. 58 at pp. 1-2) In
particular, SC, NRDC, and EJ commented that the defects pointed out by
DOE in the December 2021 NOPR are not the only bases for concluding
that DOE has failed to complete a rulemaking in accordance with clauses
(i) through (iv) of 42 U.S.C. 6295(i)(6)(A). Rather, SC, NRDC, and EJ
commented that DOE has failed to meet not just two, but all four of the
rulemaking criteria prescribed in 42 U.S.C. 6295(i)(6)(A). Moreover,
these commenters asserted that DOE triggered the backstop more than
eight years ago when it failed to meet the January 1, 2014 statutory
deadline to initiate the required rulemaking procedure. (SC, NRDC, and
EJ, No. 58 at pp. 1-2) Additionally, IPI et al. commented that the
statutory backstop provision in 42 U.S.C. 6295(i)(6)(A)(v) is absolute
and unambiguous, suggesting that it applies even if it did not meet
EPCA's typical mandate that standards be ``economically justified,'' or
that ``the benefits of the standards exceed its burdens.'' These
commenters stated that federal law demands that DOE promulgate the
backstop standard regardless of the magnitude of climate benefits or
the results of its cost-benefit analysis more broadly. (IPI et al., No.
54 at pp. 4-5)
DOE concludes that the 45 lm/W backstop requirement has been
triggered for the reasons put forth in the December 2021 NOPR. That is,
DOE failed to complete the first cycle of rulemaking in accordance with
clauses (i) through (iv) of 42 U.S.C. 6295(i)(6)(A), and DOE's final
rules that were published did not produce savings that are ``greater
than or equal to the savings from a minimum efficacy standard of 45 lm/
W[.]'' 42 U.S.C. 6295(i)(6)(A)(v).
First as explained above and in the December 2021 NOPR, DOE did not
complete the first cycle rulemaking in accordance with the criteria
established by EPCA because it did not complete the rulemaking in a
timely manner. (42 U.S.C. 6295(i)(a)(6)(i)-(iv)) As discussed, the
structure of section 6295(i)(6)(A) reflects an expectation by Congress
that by January 1, 2017, the outcome of DOE's GSL rulemaking would have
been known, and, if either amended standards or the backstop were to be
applicable, those would be in place no later than January 1, 2020. Even
if the statute contemplated a third possible scenario as previously
suggested by commenters--i.e., a determination by DOE that standards
for GSLs need not be amended, in which circumstance the backstop would
not be triggered (see e.g., NEMA, Docket No. EERE-2018-BT-STD-0010,\10\
No. 329 at p. 40) --it is clear from section 6295(i)(6)(A) that
Congress expected this determination would be made no later than
January 1, 2017. This lack of a timely concluded rulemaking by itself
constitutes a failure to complete a rulemaking in accordance with the
enumerated clauses, thereby triggering the backstop.
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\10\ Available at: www.regulations.gov/docket/EERE-2018-BT-STD-0010.
---------------------------------------------------------------------------
While failure to satisfy any one of the specified criterion alone
triggers the backstop, DOE agrees with those commenters stating that
DOE also failed to conduct the evaluation required by 42 U.S.C.
6295(i)(6)(A)(ii)(II)--i.e., an evaluation of a 45 lm/W standard for
GSLs. As explained, the December 2019 Final Determination only
evaluated standards in relation to a 45 lm/W requirement for GSILs. By
providing only a limited evaluation of a 45 lm/W requirement and by
excluding other GSLs from this evaluation (e.g., CFLs, LEDs), DOE
failed to consider a minimum standard of 45 lm/W for GSLs as required
by 42 U.S.C. 6295(i)(6)(A)(ii)(II).
In addition, Congress provided that the backstop requirement is
triggered if the rulemaking completed under 42 U.S.C. 6295(i)(6)(A)
``does not produce savings that are greater than or equal to the
savings from a minimum efficacy standard of 45 [l/w].'' 42 U.S.C.
6295(i)(6)(A)(v). That is an independent basis for application of the
backstop under section 6295(i)(6)(v). As discussed, neither the
September 2019 Withdrawal Rule nor the December 2019 Final
Determination considered whether any energy savings resulting from
either rule would produce energy savings that are greater than or equal
to a minimum efficacy standard of 45 lm/W.
For the foregoing reasons, DOE has determined the backstop
requirement in 42 U.S.C. 6295(i)(6)(A)(v) was triggered and should have
been effective as of January 1, 2020.
DOE received extensive comments from IPI et al. regarding
consideration of greenhouse gas emission and the estimated value of
emission reductions as a result of the backstop requirement. (See
generally IPI et al., No. 54) DOE agrees with IPI et al. that once
triggered, application of the backstop requirement does not necessitate
a determination of economic justification. (See IPI et al., No. 54 at
pp. 4-5) Importantly, the 45 lm/W backstop standard is explicitly
commanded by Congress in 42 U.S.C. 6295(i)(6)(A)(v). This is not a
[[Page 27446]]
discretionary rulemaking standard subject to evaluation of the factors
at 42 U.S.C. 6295(o). However, consistent with Executive Order 12866,
DOE notes that it has provided a cost-benefit analysis of implementing
the 45 lm/W backstop for GSLs, which is discussed in greater detail for
the public in section IV.A of this document.
DOE received a number of comments that objected to the 45 lm/W
requirement generally. DOE received comments stating that regulation
was not necessary as market forces were shifting lighting technology to
LED lamps. DOE also received comments stating that the backstop
standard would be costly to consumers and remove consumer choice in
product and product features. Commentators also stated potential health
and safety concerns resulting from the implementation of the backstop
requirement. These comments are discussed in detail in section II.D of
this document.
DOE also received comments in general support of the 45 lm/W
requirement. NPC Council stated that having a consistent federal
standard in place will enable better energy efficiency planning and a
more equitable distribution of the benefits to consumers. (NPC Council,
No. 46 at p. 2) NYSERDA, CFA and NCLC, NRF and RILA, ALA, Lutron, NEEA,
CEC, CA IOUs, SC, NRDC, and EJ, ASAP et al., the Attorneys General, and
IPI et al. stated that the nation would experience benefits such as
reduced electricity bills and reduced climate emissions from the
implementation of the 45 lm/W backstop requirement. (NYSERDA, No. 48 at
pp. 1-2; CFA and NCLC, No. 52 at p. 2; NRF and RILA, No. 55 at p. 2;
ALA, No. 57 at p. 1; Lutron, No. 62 at p. 2; NEEA, No. 64 at pp. 1-2;
CEC, No. 53 at p. 1; SC, NRDC, and EJ, No. 58 at p. 1; ASAP et al., No.
63 at p. 1; Attorneys General, No. 60 at p. 1; IPI et al., No. 54 at p.
4) ALA stated its support for the adoption of the 45 lm/W backstop
requirement with the caveat that it opposed a 60-day effective date for
the backstop. ALA also noted that its comments are submitted in support
of the NEMA positions. (ALA, No. 57 at p. 2)
As stated, DOE has determined that it failed to conduct a
rulemaking (or rulemakings) in accordance with the criteria specified
by EPCA at 42 U.S.C. 6295(i)(6)(A)(i)-(iv) and the final rules that
were published did not produce savings that are greater than or equal
to the savings from a minimum efficacy standard of 45 lm/W. (42 U.S.C.
6295(i)(6)(A)(v)) Accordingly, the statute requires the Secretary to
prohibit the sale of any GSL that does not meet a minimum efficacy
standard of 45 lm/W.
B. Scope of Backstop Requirement
Once triggered, the backstop requirement as specified in 42 U.S.C.
6295(i)(6)(A)(v) directs DOE to prohibit the sale of GSLs that do not
meet a minimum efficacy standard of 45 lm/W. DOE's previous regulatory
definition of GSL did not include any of the 22 lighting applications
or bulb shapes explicitly not included in the definition of GSIL,\11\
or any general service fluorescent lamp or IRL. (See, 42 U.S.C.
6291(30)(BB)(ii))
---------------------------------------------------------------------------
\11\ As defined in EPCA ``general service incandescent lamp''
does not include the following incandescent lamps: (I) An appliance
lamp; (II) A black light lamp; (III) A bug lamp; (IV) A colored
lamp; (V) An infrared lamp; (VI) A left-hand thread lamp; (VII) A
marine lamp; (VIII) A marine signal service lamp; (IX) A mine
service lamp; (X) A plant light lamp; (XI) A reflector lamp; (XII) A
rough service lamp; (XIII) A shatter-resistant lamp (including a
shatter-proof lamp and a shatter-protected lamp); (XIV) A sign
service lamp; (XV) A silver bowl lamp; (XVI) A showcase lamp; (XVII)
A 3-way incandescent lamp; (XVIII) A traffic signal lamp; (XIX) A
vibration service lamp; (XX) A G shape lamp (as defined in ANSI
C78.20-2003 and C79.1-2002 with a diameter of 5 inches or more;
(XXI) A T shape lamp (as defined in ANSI C78.20-2003 and C79.1-2002)
and that uses not more than 40 watts or has a length of more than 10
inches; (XXII) A B, BA, CA, F, G16-1/2, G-25, G30, S, or M-14 lamp
(as defined in ANSI C79.1-2002 and ANSI C78.20-2003) of 40 watts or
less. (42 U.S.C. 6291(30)(D)(ii))
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On August 21, 2021, DOE published a notice of proposed rulemaking
proposing to amend the then-current definitions of GSL and GSIL to be
defined as previously set forth in the January 2017 Final Rules. 86 FR
46611 (``August 2021 Definition NOPR''). DOE issued a final rule
published elsewhere in this issue of the Federal Register responding to
comments received on the August 2021 Definition NOPR and adopting the
definitions of GSL and GSIL as set forth in that NOPR. These
definitions of GSL and GSIL adopted by DOE in the 2022 Definition Final
Rule are as follows:
General service lamp means a lamp that has an ANSI base; is able to
operate at a voltage of 12 volts or 24 volts, at or between 100 to 130
volts, at or between 220 to 240 volts, or at 277 volts for integrated
lamps, or is able to operate at any voltage for non-integrated lamps;
has an initial lumen output of greater than or equal to 310 lumens (or
232 lumens for modified spectrum general service incandescent lamps)
and less than or equal to 3,300 lumens; is not a light fixture; is not
an LED downlight retrofit kit; and is used in general lighting
applications. General service lamps do not include:
(1) Appliance lamps;
(2) Black light lamps;
(3) Bug lamps;
(4) Colored lamps;
(5) G shape lamps with a diameter of 5 inches or more as defined in
ANSI C79.1-2002;
(6) General service fluorescent lamps;
(7) High intensity discharge lamps;
(8) Infrared lamps;
(9) J, JC, JCD, JCS, JCV, JCX, JD, JS, and JT shape lamps that do
not have Edison screw bases;
(10) Lamps that have a wedge base or prefocus base;
(11) Left-hand thread lamps;
(12) Marine lamps;
(13) Marine signal service lamps;
(14) Mine service lamps;
(15) MR shape lamps that have a first number symbol equal to 16
(diameter equal to 2 inches) as defined in ANSI C79.1-2002, operate at
12 volts, and have a lumen output greater than or equal to 800;
(16) Other fluorescent lamps;
(17) Plant light lamps;
(18) R20 short lamps;
(19) Reflector lamps that have a first number symbol less than 16
(diameter less than 2 inches) as defined in ANSI C79.1-2002 and that do
not have E26/E24, E26d, E26/50x39, E26/53x39, E29/28, E29/53x39, E39,
E39d, EP39, or EX39 bases;
(20) S shape or G shape lamps that have a first number symbol less
than or equal to 12.5 (diameter less than or equal to 1.5625 inches) as
defined in ANSI C79.1-2002;
(21) Sign service lamps;
(22) Silver bowl lamps;
(23) Showcase lamps;
(24) Specialty MR lamps;
(25) T shape lamps that have a first number symbol less than or
equal to 8 (diameter less than or equal to 1 inch) as defined in ANSI
C79.1-2002, nominal overall length less than 12 inches, and that are
not compact fluorescent lamps;
(26) Traffic signal lamps.
General service incandescent lamp means a standard incandescent or
halogen type lamp that is intended for general service applications;
has a medium screw base; has a lumen range of not less than 310 lumens
and not more than 2,600 lumens or, in the case of a modified spectrum
lamp, not less than 232 lumens and not more than 1,950 lumens; and is
capable of being operated at a voltage range at least partially within
110 and 130 volts; however, this definition does not apply to the
following incandescent lamps--
(1) An appliance lamp;
(2) A black light lamp;
(3) A bug lamp;
[[Page 27447]]
(4) A colored lamp;
(5) A G shape lamp with a diameter of 5 inches or more as defined
in ANSI C79.1-2002;
(6) An infrared lamp;
(7) A left-hand thread lamp;
(8) A marine lamp;
(9) A marine signal service lamp;
(10) A mine service lamp;
(11) A plant light lamp;
(12) An R20 short lamp;
(13) A sign service lamp;
(14) A silver bowl lamp;
(15) A showcase lamp; and
(16) A traffic signal lamp.
NYSERDA submitted comments encouraging DOE to publish final rules
for both the 45 lm/W backstop and expanded scope definitions as these
rules will provide overdue savings. (NYSERDA, No. 48 at p. 3) CEC, CA
IOUs, SC, NRDC, and EJ, CFA, NCLC, the Attorneys General, and NYSERDA
stated that DOE should promptly reinstate the January 2017 Definition
Final Rules expanding the definitions of GSL and GSIL to take effect no
later than the effective date of the GSL backstop, thus enforcing the
backstop sales prohibition on the expanded scope of GSLs. (CA IOUs, No.
56 at pp. 2-3; SC, NRDC, and EJ, No. 58 at p. 3; CFA, NCLC, No. 52 at
p. 1; Attorneys General, No. 60 at p. 1) CEC stated that reinstatement
of the expanded definition of GSLs finalized in the January 2017
Definition Final Rules would achieve the maximum improvement in energy
efficiency that is technologically feasible and economically justified.
(CEC, No. 53 at pp. 4-5) The CA IOUs and NYSERDA commented that
reinstatement of the January 2017 Definition Final Rules was identified
for review in President Biden's Executive Order 13990 and slated for
completion by December 31, 2021, and that additional delay to finalize
both rules prevents realizing the full energy savings potential of the
GSL backstop standard. (CA IOUs, No. 56 at p. 2; NYSERDA, No. 48 at p.
2) The CA IOUs stated that California and several other states have
adopted and implemented the 45 lm/W backstop standard including DOE's
expanded GSL definition. The CA IOUs further stated that in California
the CEC have reported no consumer complaints about product
availability. (CA IOUs, No. 56 at p. 3) The Attorneys General stated
that together, prompt enforcement of the backstop standard and the
expanded definition of GSLs will significantly increase GSL efficiency
and ensure that consumers, businesses, and governments enjoy the full
economic and environmental benefits of strong national energy
efficiency standards. (Attorneys General, No. 60 at p. 3) Minimise USA
stated that it supports setting a minimum efficacy standard of 45 lm/W
for GSLs and GSILs, such as those used in decorative, recessed, and
track lighting fixtures. (Minimise USA, No. 38 at p.1)
As noted, the 2022 Definition Final Rule amended the definitions of
GSL and GSIL as they were specified in the January 2017 Definition
Final Rules. For the current definition of GSL adopted in the 2022
Definition Final Rule, DOE adopted additional detail to the statutory
definition by specifying the base type, lumens, and voltages of GSLs.
DOE also removed the GSIL exemptions for certain incandescent lamps
that are used in general lighting applications and included those lamps
in the definition of GSIL and GSL. The adopted definitions of GSL and
GSIL explicitly include not only A-shaped or pear-shaped light bulbs
but also the smaller, decorative shaped light bulbs resembling a
candle, bullet or globe and often used in chandeliers, desk lamps,
ornamental wall lights, etc. Additionally, the definitions include
reflector shaped light bulbs that have a cone-like shape with an inner
reflective coating that directs light and are often used in recessed
light fixtures (e.g., lights within the ceiling wall). Based on
estimates from DOE's 2015 Lighting Market Characterization Report, the
GSL definition adopted in the 2022 Definitions Final Rule comprise 5.8
billion lamps. The sales prohibition under the backstop requirement
would affect any lamp type that is defined as a GSL.
C. Implementation and Enforcement
In the December 2021 NOPR, DOE stated that once triggered, the
backstop requirement provides that DOE ``shall prohibit'' sales of any
GSL below the 45 lm/W backstop standard ``effective beginning January
1, 2020.'' 86 FR 70755, 70766. DOE noted in its prior explanation that
if it is determined that the backstop is triggered, DOE would not have
discretion regarding the effective date of the backstop standard. Id.
DOE also recognized the unique circumstances created by the delay in
correctly addressing the applicability of the backstop. Id. DOE stated
that were it to issue a final determination that the backstop has been
triggered, DOE proposes to use its enforcement discretion to provide
the necessary flexibility to avoid undue market disruption. Id. DOE
presented an example of a discretionary enforcement approach, in which
DOE would consider a staggered implementation that weighs factors such
as the point of manufacture, the point of sale, and the anticipated
inventory of different lamp categories. Id. DOE stated that this
flexible enforcement approach takes into account the disruptive supply
chain effects of stranded inventory and the significant consumer and
environmental benefits of full compliance, and would best balance
Congress's intent to facilitate a smooth transition with Congress's
intent that the different efficacy standards were to be in place as of
January 1, 2020. Id. DOE requested input of this consideration and on
additional considerations for enforcement. Id.
Several commenters addressed whether DOE has discretion in
enforcing the 45 lm/W backstop standard. NEMA asserted that DOE
acknowledged in the December 2021 NOPR that it has the discretion to
set an effective date that recognizes the need for an appropriate
transition period to discontinue sales. (NEMA, No. 51 at pp. 3-4) GE
Lighting stated that following a new energy efficiency standard,
Congress has generally provided three years for manufacturers to
prepare for a transition of products followed by an unlimited amount of
time to sell through existing inventory. (GE Lighting, No. 59 at p. 2)
NEMA also commented that the statutory scheme reflects Congressional
intent that manufacturers and retailers have at least three years to
plan for and adjust to any sales restrictions. (NEMA, No. 51 at p. 4)
NEMA stated that Congress makes laws with due regard to market forces
and therefore Congressional intent is that DOE act with global market
forces and consumer demand in mind when exercising agency authority.
(NEMA, No. 51 at p. 2) NEMA stated that while supply and demand for
incandescent lamps is declining, demand persists and in a free market
economy manufacturers and retailers respond by supplying products.
(NEMA, No. 51 at p. 2) NEMA stated that a 60-day transition period is
inconsistent with that Congressional intent and a transition period of
365 days, though two years sooner than Congress intended, would give
manufacturers necessary time to adjust to the sales ban. NEMA also
commented that while the Administrative Procedure Act requires a
minimum of 30 days before a rule may become effective, it does not set
a maximum period for an effective date. (NEMA, No. 51 at p. 4)
GE Lighting commented on its understanding that DOE recognizes the
practicalities of the transition to new standards and that this
challenge can be mitigated through DOE's enforcement discretion. GE
Lighting further supported NEMA's proposal to phase in
[[Page 27448]]
the regulation in three steps. (GE Lighting, No. 59 at p. 2) NEMA and
GE Lighting requested that DOE clearly state specific enforcement
timelines to avoid negative outcomes for businesses and ensure
availability of lighting for consumers. (NEMA, No. 51 at p. 4; GE
Lighting, No. 59 at p. 2) NEMA stated that the proposed regulatory text
in the December 2021 NOPR (see 86 FR 70755, 70770) would impose an
immediate ban on sales of covered lamps and is inconsistent with DOE's
statements in the December 2021 NOPR regarding enforcement discretion.
(NEMA, No. 51 at p. 5)
NRF and RILA stated they want to ensure changes resulting from the
45 lm/W backstop implementation do not cause adverse environmental and
economic impacts and are widely accepted by consumers. (NRF and RILA,
No. 55 at p. 2)
CEC stated that, while it agrees with the DOE's stated concerns
regarding the potential immediate imposition of a sales prohibition,
DOE's proposal to exercise its enforcement discretion is inconsistent
with EPCA and Congressional intent. (CEC, No. 53 at p. 3) CEC stated
that Congress provided manufacturers with notice that if DOE did not
meet its statutory obligations by January 1, 2017, there would be a
mandatory sales prohibition on any GSL, as defined, that could not meet
a minimum efficacy of 45 lm/W. CEC stated that DOE indicated the
backstop would be automatically triggered as early as March 17, 2016.
CEC asserted that on January 1, 2017, manufacturers knew that DOE had
not met the statutory requirements. CEC argued that stakeholders knew
or should have known, three years in advance, that EPCA's backstop
sales prohibition would be in effect on January 1, 2020. CEC further
argued that Congressional intent is for DOE to enforce the backstop for
all noncompliant GSLs, as defined by EPCA, immediately, without
exercising its enforcement discretion. (CEC, No. 53 at pp. 3-4)
Additionally, CEC asserted that because Congress provides state
Attorneys General with the authority to enforce the ``applicable
standard established under section 6295(i)'' against any GSIL that
doesn't meet the standard, state Attorneys General could enforce the
backstop to ensure consumer protection in their states regardless of
DOE's enforcement discretion. (CEC, No. 53 at p. 4; citing 42 U.S.C.
6304)
In this document, DOE has determined that the backstop provision in
42 U.S.C. 6295(i)(6)(A)(v) has been triggered and the Secretary must
prohibit the sale of any GSL that does not meet a minimum efficacy
standard of 45 lm/W. DOE recognizes that implementation of the
backstop, which is a sales prohibition, presents different challenges
than most DOE standards, which are based on the date of manufacture.
DOE recognizes that a transition period is often necessary for the
market to adjust to the implementation of a standard.
Congress structured 42 U.S.C. 6295(i)(6)(A)(i)-(v) so as to provide
manufacturers with a lead time (with a possible shorter lead time for
California and Nevada) to adjust to different efficacy standards--
either standards adopted by DOE through rulemaking or the imposition of
the statutory backstop. In addition, Congress expressly required DOE to
consider phased-in effective dates by considering ``the impact . . . on
manufacturers, retiring and repurposing existing equipment, stranded
investments, labor contracts, workers, [ ] raw materials,'' and ``the
time needed to work with retailers and lighting designers to revise
sales and marketing strategies.'' 42 U.S.C. 6295(i)(6)(A)(iv).
Therefore, Congress did not intend for there to be an instantaneous
imposition of a new 45 lm/W efficacy standard for GSLs. Such a possible
outcome exists now only because of DOE's delay in correctly addressing
the applicability of the backstop. DOE must balance Congress's intent
to facilitate a smooth transition to different efficacy standards
through the provision of lead time with the clear intent of Congress
that these different efficacy standards were to be in place as of
January 1, 2020. 42 U.S.C. 6295(i)(6)(A)(jjj),(v). Hence, in order to
provide for a smooth transition, DOE will account for the
practicalities of this transition to Congress's backstop efficacy
standard through use of its enforcement discretion.
As previously stated, once DOE determines that the backstop has
been triggered, Congress provides a specific date on which the
prohibition begins--January 1, 2020. (42 U.S.C. 6295(i)(6)(A)(v)).
However, as noted, DOE understands the practicalities associated with
an immediate implementation of the 45 lm/W backstop standard for GSLs
and therefore, will issue guidance regarding enforcement of the
standard. DOE's enforcement guidance will be applicable to all states
(except for California and Nevada, see section II.A.3).
The enforcement guidance will be informed, in part, by the comments
received to the May 2021 RFI and December 2021 NOPR. In the December
2021 NOPR, DOE discussed the comments received on enforcement in the
May 2021 RFI. DOE also received several comments on the December 2021
NOPR regarding enforcement including the date of enforcement, phased-in
enforcement approach, and consumer education. These comments are
discussed in the following sections.
1. Prompt Enforcement
DOE received comments recommending DOE begin enforcing the 45 lm/W
backstop requirement as soon as possible. SC, NRDC, and EJ stated that
in light of delays, DOE should act swiftly to finalize the proposed
rule and begin enforcing EPCA's backstop. (SC, NRDC, and EJ, No. 58 at
p. 1) CEC, SC, NRDC, and EJ, ASAP et al., and NASEO stated that DOE
missed the December 31, 2021 deadline set by President Biden in
Executive Order 13990 to complete the review of the backstop rule.
(CEC, No. 53 at p. 3; SC, NRDC, and EJ, No. 58 at p. 2; ASAP et al.,
No. 63 at pp. 1-3; NASEO, No. 45 at p. 1) SC, NRDC, and EJ stated that
the White House's Office of Information and Regulatory Affairs
(``OIRA'') took approximately two and a half months to review the
December 2021 NOPR pursuant to E.O. 12886, and that this pace fails to
reflect that the December 2021 NOPR is simply corrections of unlawful
legal interpretations from the prior administration. SC, NRDC, and EJ
urged DOE to cease what they characterized as its ongoing, unlawful
efforts to avoid implementing the transformative advance in lighting
efficiency that Congress enacted in 2007. (SC, NRDC, and EJ, No. 58 at
p. 2)
SC, NRDC, and EJ, CFA and NCLC, CEC, CA IOUs, ASAP et al., NASEO,
the Attorneys General, and IPI et al. stated that DOE should implement
prompt enforcement of the backstop standard. (CEC, No. 53 at p. 5; CA
IOUs, No. 56 at pp. 2, 4; SC, NRDC, and EJ, No. 58 at p. 2; ASAP et
al., No. 63 at p. 3; NASEO, No. 45 at p. 1; CFA and NCLC, No. 52 at p.
3; Attorneys General, No. 60 at pp. 2, 3, 4; IPI et al., No. 54 at p.
3) CEC stated that DOE should not exercise its proposed enforcement
discretion, as it would allow manufacturers to shift the costs of
inefficient and unlawful lighting onto the environment and consumers.
(CEC, No. 53 at p. 3) CEC added that exercising enforcement discretion
would undermine President Biden's commitment to addressing the climate
crisis. (CEC, No. 53 at pp. 1-2) CEC asserted that the law regarding
the statutorily required implementation of the backstop is clear, and
stakeholders were on notice of the sales prohibition since January 1,
2017, and that DOE
[[Page 27449]]
should carry out enforcement immediately. (CEC, No. 53 at p. 2) CEC
further stated that DOE is required to implement the backstop
immediately, and that no environmental or economic analysis is required
to implement the backstop. (CEC, No. 53 at pp. 2-3)
CEC, CFA, and NCLC asserted that each month of additional delay in
backstop implementation costs consumers nearly $300 million in lost
bill savings and results in 800,000 tons of carbon emissions. (CEC, No.
53 at p. 2; CFA and NCLC, No. 52 at pp. 1-2) ASAP et al. stated that
inefficient GSLs sold during a six-month period add nearly 5 million
metric tons (``MMT'') of carbon emissions to the atmosphere and cost
consumers $1.8 billion in higher utility bills. ASAP et al. further
stated that allowing lamp manufacturers to continue the manufacture and
sale of inefficient lamps would benefit manufacturers at the expense of
consumers and the planet. (ASAP et al., No. 63 at p. 3) CEC argued that
although manufacturers and distributors may experience losses from
stranded inventory, if inefficient GSLs are permitted to remain in the
market consumers will experience higher energy bills and the grid will
have unnecessary load. CEC further stated that DOE's proposed
enforcement discretion is inconsistent with Executive Order 13990 and
places unreasonable weight on stranded costs without accounting for
economic and environmental costs to consumers and the environment.
(CEC, No. 53 at pp. 4)
The Attorneys General cited DOE's estimates of savings from the
backstop and stated that prompt implementation of the backstop will
facilitate manufacturers' deployment of more efficient technologies,
increase consumer choice, significantly reduce energy costs, and ensure
equitable distribution of lighting efficiency benefits. (Attorneys
General, No. 60 at pp. 1, 2-3) The Attorneys General stated that, in a
recent GSL market survey of New York state commissioned by the NYSERDA,
retailers and distributors reported that they rely on manufacturers to
provide products that comply with regulatory requirements, and
manufacturers revealed that they anticipate efficiency standards to
increase in stringency but will not initiate product changes without a
high level of certainty that the requirements will go into effect. The
Attorneys General also stated the survey showed that LED lamps across
product types are now widely available in New York. (Attorneys General,
No. 60 at pp. 2-3) IPI et al. asserted that the backstop's net benefits
are likely considerably higher than DOE's estimates due to perceived
discrepancies in social cost estimates and discount rates. (IPI et al.,
No. 54 at p. 36) IPI et al. stated that DOE should implement the
backstop as soon as possible to ensure the backstop's net benefits to
the public are maximized and available earlier. (IPI et al., No. 54 at
p. 36)
SC, NRDC, and EJ, CFA and NCLC, ASAP et al., NYSERDA, NASEO, and
the Attorneys General stated that prompt implementation of the backstop
standard will benefit low-income consumers. (SC, NRDC, and EJ, No. 58
at p. 2; NYSERDA, No. 48 at p. 2; Attorneys General, No. 60 at p. 3;
CFA and NCLC, No. 52 at pp. 2, 3) ASAP et al. and NASEO stated that
low- and moderate-income households spend a disproportionate share of
their incomes on higher electric bills. (ASAP et al., No. 63 at pp. 1-
2; NASEO, No. 45 at p. 1) ASAP et al. further stated that low-income
households spend nearly ten times as much of their income on energy
bills as other households, 10.4 percent compared to 1.2 percent. (ASAP
et al., No. 63 at p. 2) The CFA and NCLC commented that most low-income
households are typically renters who often have older preinstalled and
less efficient incandescent lamps or CFLs. (CFA and NCLC, No. 52 at p.
2) SC, NRDC, and EJ, ASAP et al., NYSERDA, and the Attorneys General
stated that low-income consumers often lack access to retailers that
stock affordable, lasting, energy efficient lamps. (SC, NRDC, and EJ,
No. 58 at p. 2; ASAP et al., No. 63 at p. 2) NYSERDA, CFA, and NCLC
cited a 2018 study conducted by the University of Michigan which they
stated found that retailers serving disadvantaged communities had
higher availability of less efficient lamps or set prices higher than
retailers in other communities. (CFA, NCLC, No. 52 at p. 2) NYSERDA
further stated that while LED lamps made up 73 percent of all 2020 GSL
sales in New York, over half the lamps in certain locations and through
some sales channels were less efficient lamps. NYSERDA stated that DOE
should limit enforcement discretion as it will deny savings from
consumers most in need. (NYSERDA, No. 48 at p. 2) The Attorneys General
stated that mandating the backstop standard would ensure that low-
income consumers, who have fewer options for energy efficient lamps, do
not unnecessarily purchase lamps that ultimately cost more to own and
operate. (Attorneys General, No. 60 at p. 3)
NYSERDA encouraged DOE to implement the backstop immediately after
the proposed 60 days for as many lamp types as possible, especially for
popular A-lamps. NYSERDA also stated that DOE should consider the
associated risks and rewards and provide thorough justification for any
enforcement discretion decisions. (NYSERDA, No. 48 at pp. 2-3)
The NPC Council stated that it supported the proposed 60-day
effective date if the backstop is implemented to allow manufacturers
and retailers to transition existing inventory. The NPC Council
supported DOE's exercise of its enforcement discretion, especially for
small towns and rural areas where inventory turnover is slower, and
consumers have less access to large retailers. The NPC Council, also
commented that the delays to date in implementing the backstop have
likely resulted in higher costs for consumers in those rural areas due
to lack of access to low-cost LED lamps. (NPC Council, No. 46 at p. 2)
NEMA stated that commentators have overstated the energy savings
from the backstop. (NEMA, No. 51 at p. 5) ALA opposed the proposed 60-
day effective date arguing that it would not allow for a smooth
transition and would cause economic damage to manufacturers and
retailers. ALA recommended that DOE provide manufacturers and retailers
a reasonable amount of time to fulfill existing supply contracts and
sell through inventory without causing harmful financial losses. (ALA,
No. 57 at p. 2) NEMA asserted that logistical, contractual, and other
immutable challenges make 60 days insufficient for businesses to
respond and for retailers to change their inventory to avoid empty
shelves. (NEMA, No. 51 at p. 2) NEMA further stated that a 60-day
effective date would potentially cause irrecoverable financial losses
for U.S. businesses throughout the supply chain. (NEMA, No. 51 at p. 3)
GE Lighting stated the backstop requirement eliminates all halogen and
incandescent lamps manufactured at this time and that a 60-day
effective date would adversely impact the availability of GSILs and
substitute products, leading to significant market disruption and harm
to manufacturers, component suppliers, and retailers. (GE Lighting, No.
59 at p. 2) Lutron stated that while LED lamps are expected to meet the
45 lm/W standard, compliance has additional burden and DOE should use
its enforcement discretion to prevent unintended market disruption.
(Lutron, No. 62 at p. 2)
NRF and RILA stated that the 60-day effective date is a significant
challenge for the retail industry since retailers maintain a 6 to 12
months inventory of incandescent lamps for consumers who
[[Page 27450]]
have not transitioned to LEDs. (NRF and RILA, No. 55 at p. 2)
Specifically, NRF and RILA stated that lower-income households have not
transitioned to LED lamps at the same rates as higher-income households
due to higher initial purchase costs. (NRF and RILA, No. 55 at p. 2)
VALU Home Centers stated that while it supports the 45 lm/W backstop
and mostly sells LED lamps, it would like to sell through the lamps
that will not meet the backstop standard to avoid extra costs to
vendors and retailers. (VALU Home Centers, No. 43 at p. 1)
DOE appreciates these comments relating to timing for enforcement
of the 45 lm/W backstop standard. As previously noted in this rule,
once DOE determines that the backstop has been triggered, Congress
provides a specific date on which enforcement of the prohibition
begins--January 1, 2020. (42 U.S.C. 6295(i)(6)(A)(v)). Since this date
has already passed, DOE will use enforcement guidance to provide
stakeholders with more certainty as to how they must comply with the
new standard. This guidance will be released simultaneously with this
rulemaking. DOE also notes that because this rule is a ``major rule''
under Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996, also known as the Congressional Review Act, the rule
cannot be effective prior to 60 days after publication in the Federal
Register as required by 5 U.S.C. 801. To ensure the effective date for
the 2022 Definition Final Rule occurs before the effective date of this
final rule so that the amended definitions of GSL, GSIL and the other
supplemental definitions are final before the standards in this rule
are effective, the 2022 Definition Final Rule has a 60-day effective
date and this rule will be effective within 75 days of publication
instead of the 60-day effective date as proposed. This will ensure that
the full scope of GSLs subject to the backstop requirement is
established before the sales prohibition for GSLs that do not meet the
45 lm/W backstop requirement goes into effect. Regarding comments
related to the estimated energy savings, DOE address these comments in
section II.D.1. of this document.
2. Phased-In Enforcement
NEMA and GE Lighting stated that the effective date of the backstop
should be 12 months after the publication of the final rule. (NEMA, No.
51 at p. 4; GE Lighting, No. 59 at pp. 2-3) NEMA stated manufacturers
need at least 12 months following the publication of the final rule to
cease the production of incandescent/halogen lamps and adjust supply
chains. (NEMA, No. 51 at p. 3) NEMA further stated that these timeline
estimates are based on normal market conditions, independent of current
supply and logistics challenges, and are optimistically short. (NEMA,
No. 51 at p. 3) GE Lighting supported NEMA's proposal and added that
the supply chain for incandescent lamps is both long and complicated,
involving transportation to points of manufacture outside of the U.S.,
shipping all finished products to exporting foreign ports, and
importation into the U.S. (GE Lighting, No. 59 at pp. 2-3)
NRF and RILA stated that some retailers will need at least a 12-
month sell-through period beyond a manufacture-by date to fully deplete
existing inventories, reduce unnecessary waste, and give consumers time
to adjust to the new product mix. (NRF and RILA, No. 55 at p. 2) ALA
further stated that separate sales ban dates for retailers and
manufacturers are necessary to allow retailers to clear their inventory
and avoid negative effects on the small businesses that make up the
residential lighting industry. (ALA, No. 57 at p. 2) NEMA and GE
Lighting stated that after the 12-month manufacture-by (import) date,
two separate phases of sell-through for high-volume and lower-volume
lamps should be included as part of DOE's enforcement discretion. NEMA
stated that retailers would need a minimum of 12 months to sell through
high-volume A-line GSIL and R30/BR30 IRL inventory, with additional
time potentially necessary to sell through all other slow-moving GSLs
and those newly added to the expanded definition of GSL. (NEMA, No. 51
at pp. 3-5) GE Lighting stated support for a 12-month sell-through of
halogen A-line lamps and added that additional time, up to a second
year, will be needed to clear inventory of slower moving products added
per the expanded definition of GSL. (GE Lighting, No. 59 at p. 3)
NEMA stated that the COVID-19 pandemic has greatly complicated
supply chain forces and has produced transportation and timing
challenges outside the control of manufacturers or retailers. (NEMA,
No. 51 at p. 2) NEMA stated that supply chain delays have persisted
from 2020 through 2022 and include COVID protocols and lack of
employees, logistics and shipping delays doubling lead times from 5-6
weeks to up to 10-12 weeks for imported products which are also greatly
increasing shipping costs, and electronic chip shortages that are
affecting LED lamp production. NEMA further stated that the pandemic's
impacts have caused delays for everything from component sourcing to
delivery of goods from the factory to the store shelf, and are
persisting into 2022 with no immediate end in sight. (NEMA, No. 51 at
p. 3) NEMA recommended that any definition of manufacturing considered
in DOE's enforcement policy should allow for departure from foreign
ports in recognition of the unprecedented and unpredictable supply
chain activities. (NEMA, No. 51 at p. 4) GE Lighting stated that
previously weeks-long processes now take months and that the three most
pressing issues for increasing production and inventory of new LED
lamps are electronic chip component shortages, shipping and port delays
for imported products, and COVID-related production delays. (GE
Lighting, No. 59 at p. 3) NEMA asserted that DOE has an obligation to
protect U.S. businesses, manufacturers, and retailers from unnecessary
negative financial impacts and encouraged DOE to review all past NEMA
comments on the backstop rule and its implementation. (NEMA, No. 51 at
pp. 2, 5)
DOE is aware of the near-term supply chain issues resulting from
the on-going COVID-19 pandemic. In June 2021, the Short-Term Supply
Chain Disruptions Task Force (``Task Force'') was created and is led by
the U.S. Department of Transportation, the U.S. Department of Commerce,
and the U.S. Department of Agriculture, and the Task Force focuses on
the mismatch of supply and demand in semiconductors, among other
issues.\12\ The Task Force has moved ports toward 24/7 operations and
reduced long-dwelling containers sitting on the docks.\13\ Moreover, on
February 23, 2022, the U.S. Department of Transportation announced $450
million of funding available for ports across the country to make
infrastructure upgrades.\14\ While these and other efforts have been
undertaken to address supply-chain issues, DOE acknowledges that issues
remain on-going.
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\12\ www.whitehouse.gov/briefing-room/statements-releases/2021/06/08/fact-sheet-biden-harris-administration-announces-supply-chain-disruptions-task-force-to-address-short-term-supply-chain-discontinuities/.
\13\ www.transportation.gov/briefing-room/dot-lays-out-actions-strengthen-supply-chains-and-revitalize-economy.
\14\ www.transportation.gov/briefing-room/dot-lays-out-actions-strengthen-supply-chains-and-revitalize-economy.
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Further, DOE recognizes the sell-through issue that arises because
the backstop requirement is a sales prohibition, and that manufacturers
and retailers may have been disadvantaged by DOE's position changes
regarding whether the backstop requirement has been triggered. In using
its enforcement discretion, DOE will consider the near-term market and
supply chain
[[Page 27451]]
environment to provide the necessary flexibility to avoid undue market
disruption.
The CA IOUs commented that although DOE's use of enforcement
discretion will decrease energy savings, they support DOE's application
of short-term enforcement discretion that is based on transparent
market data, to protect consumers from market disruptions outside of
California following implementation of the backstop. The CA IOUs stated
that enforcement discretion can prevent temporary shortages of low-
volume GSLs that are currently less common in LED versions but should
not be applied to GSILs, IRLs, or other popular, widely available GSLs.
The CA IOUs recommended that industry demonstrate which GSL types
necessitate enforcement discretion by making available their supply of
LED GSL inventory and showing that the supply chain is insufficient to
meet demand. The CA IOUs stated that any DOE enforcement discretion
applied should end no later than 12 months following the effective date
of the GSL backstop. (CA IOUs, No. 56 at p. 3)
DOE acknowledges the importance of avoiding market disruptions for
manufacturers, retailers, and consumers, which DOE will consider in
using its enforcement discretion. DOE also agrees that use of its
enforcement discretion should be transparent, which is why DOE will
issue an enforcement policy prescribing how its enforcement discretion
will be applied.
Minimise USA stated that while the backstop requirement may cost
manufacturers billions of dollars in potential profits, any transition
period for compliance should only be afforded to U.S. companies that
manufacture products completely in the United States, and only a one-
year transition period be given for the sale of existing inventory that
has been manufactured on or before the date of the final rule. Minimise
USA stated that DOE should not consider China's request for a
transition period of at least three years. Minimise USA stated that the
debate regarding the 45 lm/W requirement has been ongoing for five
years, which was sufficient time for manufacturers to be positioned for
implementation of the standard. (Minimise USA, No. 38 at p.1) As
stated, Congress has provided the specific date on which the backstop
sales prohibition begins, and DOE seeks to give meaning to that mandate
even though the date has passed. In exercising its enforcement
discretion to avoid market disruption, the enforcement policy is being
made public to foster transparency and equal application to all
manufacturers.
Lutron stated that having to re-test LED lamps to meet the DOE
requirement of testing in a National Voluntary Laboratory Accreditation
Program (``NVLAP'') accredited lab will be burdensome, particularly for
small and medium sized lamp companies that have only made LED lamps.
Lutron also stated that GSLs such as LED lamps with 50,000-hour
lifetimes may require a full year of testing to certify compliance and
the option of de-rating lamp lifetimes would confuse consumers. Lutron
stated that given retesting time, DOE should consider an 18-24 month
phase-in period, thereby preventing the risk of lower adoption of LEDs
resulting from marketplace confusion. (Lutron, No. 62 at p. 2) Once the
backstop is triggered, Congress directs DOE to prohibit the sale of any
GSL that does not meet a minimum efficacy standard of 45 lm/W. (42
U.S.C. 6295(i)(6)(A)(v)). Regarding testing by an accredited
laboratory, DOE requires testing of GSLs be conducted by test
laboratories accredited by an Accreditation Body that is a signatory
member to the International Laboratory Accreditation Cooperation (ILAC)
Mutual Recognition Arrangement (MRA). A manufacturer's or importer's
in-house laboratory, if accredited, may conduct the applicable testing.
10 CFR 430.25. NVLAP is a signatory of ILAC MRA. Manufacturers must
make representations with respect to the energy use or efficiency of
integrated LED lamps per DOE's test procedure in appendix BB to subpart
B of 10 CFR part 430 (appendix BB). Thus, manufacturers selling
integrated LED lamps should already be testing their products at an
accredited laboratory as specified in 10 CFR 430.25. Regarding the LED
lamp lifetime, the statutory requirement implemented in this rule does
not establish a standard on lifetime.
3. Consumer Education
NEMA commented that the December 2021 NOPR did not address
education and communication to manage potential negative consumer
reactions. NEMA provided examples of such communication, including
manufacturers and retailers creating point of purchase material and
signage, identifying and coding cross-referencing options, developing
and posting web page content, and planning and implementing employee
training to reliably assist consumers. NEMA stated that considerable
time was put into such efforts leading into the 2012-2014 incandescent
phaseout to ensure that consumers were not surprised when certain lamp
types were not on shelves. NEMA encouraged DOE to acknowledge the lead
times necessary to ensure a smooth transition by allowing time for
education and communication. (NEMA, No. 51 at p. 4)
EEI stated that increasing consumer education as part of
implementation of the backstop requirement would ensure a smooth and
flexible market transition for consumers, including electric companies
operating significant demand side management programs. (EEI, No. 61 at
p. 2) GE Lighting stated that time is needed for retailers to educate
those consumers that buy halogen and incandescent lamps on the issues
and benefits of converting to LED technology, as well as to change and
plan new LED store sets during the retailer reset period in the spring
or fall. (GE Lighting, No. 59 at p. 3)
DOE agrees that consumer education can facilitate market transition
and consumer acceptance of new technologies and notes the availability
of existing consumer education resources. LED technology is not a new
technology and, as indicated by commenters, occupies a substantial
share of the lighting market. A number of big box retailers have moved
to selling only LED lighting. \15\ Retail locations also have provided
displays to educate consumers on lamp selection, including on the
selection of LED lamps to meet consumer needs. Moreover, DOE and ENERGY
STAR have developed and made available educational materials to assist
consumers in replacing incandescent lamps with LED lamps. See e.g.,
``LED Bulbs Made Easy'' (available at www.energystar.gov/sites/default/files/asset/document/purchasing_checklist_revised.pdf; DOE's Energy
Saver (available at www.energy.gov/energysaver/led-lighting). In
addition, the Federal Trade Commission maintains a website that
contains significant consumer- and manufacturer-focused content on
lighting products available to all consumers and manufacturers at
www.ftc.gov/tips-advice/business-center/guidance/ftc-lighting-facts-label-questions-answers-manufacturers.
---------------------------------------------------------------------------
\15\ EPA, ``The Light Bulb Revolution,'' October 2017 available
at https://www.energystar.gov/sites/default/files/asset/document/LBR_2017-LED-Takeover.pdf.
---------------------------------------------------------------------------
DOE appreciates the comments received regarding the enforcement of
the implementation of the backstop. DOE understands the challenges
associated with inventory transition as well as the importance of
ensuring lamps are available to consumers. As
[[Page 27452]]
explained in the NOPR, DOE will issue an enforcement policy separately
from this rulemaking, which will be informed by all of these comments.
The policy will reflect DOE's balancing of the consumer benefits
associated with energy bill savings, along with the need for a
practical transition time for lamps to be sold through the distribution
chain. In order to avoid negative outcomes for businesses and ensure
availability of lighting for consumers, the enforcement policy will
provide a clear timeline for implementation of the backstop at the
point of manufacturer and at the point of sale for all general service
lamps subject to the backstop.
Although DOE is not using this rulemaking to set an enforcement
policy, DOE appreciates the input it received to help inform its
policy, which DOE anticipates will evolve with experience. DOE's final
enforcement policy to support the implementation of the Congressional
backstop will be posted at www.energy.gov/enforcement/.
D. Impacts
DOE received several comments on the potential impacts of
implementing the 45 lm/W backstop requirement including market trends
and energy savings; benefits and costs to the consumer; features of LED
lamps; and potential health and safety impacts of LED lighting. These
comments are discussed in the following sections.
1. Market Trends and Energy Savings
NEMA commented that other commenters have overstated the energy
savings potential resulting from the backstop requirement as the
lighting market has already undergone a dramatic shift to LED lamps
since the time this rulemaking began in 2014. NEMA stated that a small
part of the market continues to choose halogen lamps due to personal
preferences for dimming, color appearance, or simply first cost and
that very few halogen lamps will be sold in half a decade due to market
forces alone. NEMA further stated that additional savings potential
from a DOE regulation is low compared to data reflecting savings
already achieved from the market transition to LED lamps. (NEMA, No. 51
at p. 5) The Free Market Organizations asserted DOE failed to consider
non-regulatory approaches and market forces have already resulted in
the average lamp being 70 lm/W. They added that DOE has forecasted LED
lamps will be 84 percent of the market by 2035 and industry data
indicates that GSILs are no more than 18 percent of current sales. The
Free Market Organizations further stated that overall energy savings
resulting from the backstop standard will be minimal due to growth of
LEDs and therefore, will not meet EPCA's requirement that an amended
standard result in significant energy savings. (Free Market
Organizations, No. 65 at pp. 5-6)
The CA IOUs commented that although market data show decreased
savings potential from a national GSL standard, due to the market
transition to LED lamps since 2017, the data also show that the size of
the U.S. lighting market and the high energy efficiency of LED
technology provide significant remaining savings potential. (CA IOUs,
No. 56 at p. 2) The CA IOUs stated that they are not aware of technical
barriers preventing market entry for LED alternatives of any GSL type.
The CA IOUs asserted that LED lights of all types are available to U.S.
consumers and the lighting industry has ample capacity to meet demand
following the effective date of the GSL backstop, as LED products now
dominate the most popular GSL shapes. (CA IOUs, No. 56 at p. 3)
The CA IOUs also commented that incandescent/halogen lamps continue
to account for a significant market share for A-type lamps despite
their higher life-cycle costs and the wide availability of LED
alternatives. The CA IOUs stated that in 2020, incandescent/halogen
lamps held a 33 percent share of the national A-type lamp market, which
the lighting industry projected to decrease to 23 percent by the third
quarter of 2021. The CA IOUs further stated that decorative and
specialty incandescent/halogen GSLs also have a higher market share.
(CA IOUs, No. 56 at p. 2) NEEA commented that in 2020, 82 percent of
GSLs in stores met the 45 lm/W standard, and estimated that in the
Northwest, LED and CFL products made up approximately 74 percent of all
GSL sales. NEEA stated that this indicates that implementing the
backstop will not adversely affect the market. (NEEA, No. 64 at p. 2)
The Attorneys General commented that while the LED share of the overall
lighting market in New York is over 70 percent, over half of the GSLs
for sale in some locales are incandescent/halogen lamps. (Attorneys
General, No. 60 at p. 1) CFA and NCLC stated that LED market share is
about 60 percent and that the remaining 40 percent of sales are
incandescent products that increase consumer costs. (CFA and NCLC, No.
52 at p. 2)
DOE is appreciative of information regarding market trends and
energy savings. This is not a discretionary standards rulemaking
subject to evaluation of the factors at 42 U.S.C. 6295(o). As noted in
section II.A.3, this final rule determines that the backstop standard
has been triggered because DOE failed to complete the first cycle of
rulemaking as prescribed by EPCA in 42 U.S.C. 6295(i)(6)(A). However,
consistent with Executive Order 12866, DOE notes that it has provided a
cost-benefit analysis of implementing the 45 lm/W backstop for GSLs,
which is discussed in greater detail for the public in section IV.A.
2. Benefits and Costs
The SC, NRDC, and EJ, ASAP et al., EEI, and NASEO supported
implementation of the 45 lm/W backstop, citing reductions in air
pollutants, carbon dioxide (``CO2'') emissions, and
electricity consumption. (SC, NRDC, and EJ, No. 58 at p. 2; ASAP et
al., No. 63 at p. 1; EEI, No. 61 at p. 3) SC, NRDC, and EJ commented
that applying the 45 lm/W backstop requirement to GSLs as proposed by
DOE will result in more than $3 billion in net consumer benefits over
30 years. (SC, NRDC, and EJ, No. 58 at pp. 2-3) ASAP et al. and NASEO
stated that per analysis performed for DOE, consumers will save an
estimated $2.7 billion on an annualized basis and 222 MMT of cumulative
avoided carbon dioxide-equivalent over the next 30 years from
implementing the backstop standard. (ASAP et al., No. 63 at p. 2;
NASEO, No. 45 at p. 1) Minimise USA commented that, according to ASAP,
a phaseout of incandescent light lamps would reduce energy use for
lighting and eliminate 9.5 MMT of CO2 emissions per year.
(Minimise USA, No. 38 at p.1) CEC stated that the LED alternative of a
typical A-type 60 W incandescent lamp results in 80 percent energy
savings. (CEC, No. 53 at p. 2) ASAP et al. commented that an average
household with about 20 sockets will save more than $100 per year and
an average household with more than 50 sockets will save more than $200
per year. (ASAP et al., No. 63 at p. 2) CFA and NCLC stated that
switching one lamp from incandescent to LED saves $40-$90 over ten
years which, using the midpoint of $65 and estimating 45 sockets in a
household, translates to $3,000 net savings per household over ten
years. (CFA and NCLC, No. 52 at p. 2) CEC stated that for a typical A-
type 60 W incandescent lamp, any higher initial cost of the LED version
is recovered in less than a year. (CEC, No. 53 at p. 2)
CFA and NCLC commented that LEDs are no longer a new, expensive
lighting technology, and manufacturers can now produce LED lamps in
almost every type of lamp that consumers purchase for
[[Page 27453]]
their homes. CFA and NCLC further stated that consumers who have
switched to LED lamps have saved on energy costs and gained the
convenience of not having to replace them as often due to their long
life. (CFA and NCLC, No. 52 at p. 3) NEEA commented that based on its
lighting market study, which includes point of sale data and in-person
shelf surveys, LED products have grown since 2012 and their price has
trended downwards. (NEEA, No. 64 at pp. 1-2) CFA and NCLC stated that a
2019 CFA survey found two-thirds of respondents support federal
efficiency standards for lamps, compared to fewer than one-third who
oppose standards. CFA and NCLC further stated that consumers that have
had experience with LEDs are more likely to support efficiency
standards compared to those who have no experience. CFA and NCLC stated
that implementing the backstop standard will result in broader economic
benefits, as cost savings in the commercial and industrial sectors are
passed on to consumers through lower costs for goods and services,
allowing money to be spent in other areas of the economy with greater
multiplier effects. (CFA and NCLC, No. 52 at p. 2)
NASEO commented that the backstop requirement is important to the
states, which rely on cost-effective federal appliance and equipment
energy efficiency standards to help them meet their energy
affordability, air quality, climate, electric reliability, and energy
resilience goals. (NASEO, No. 45 at p. 1)
Project 21 stated that adopting the 45 lm/W backstop standard for
GSLs will benefit LED manufacturers at the expense of companies that
provide Edison lamps and consumers that will no longer have the choice
of cost and features provided by Edison lamps. Project 21 stated that
in the December 2019 Final Determination, DOE had determined not to
implement the 45 lm/W backstop because it would harm consumers and
would increase the cost of Edison lamps by 300 percent, resulting in a
lamp costing approximately $8.10. Project 21 stated this DOE's prior
determination recognized the trend towards LEDs and continued research
in new technologies while making existing options affordable. Further,
Project 21 commented that the cost of LEDs and incandescent lamps is
not comparable and low-income consumers will be forced to pay more.
(Project 21, No. 44 at pp. 1-2) Project 21 stated that EPCA allows DOE
to revise standards for lamps and other appliances but does not intend
for the executive branch to wield arbitrary power over the kinds of
appliances consumers can use. (Project 21, No. 44 at p. 1) Hough
opposed the backstop requirement, commenting that 36 percent of the
American lamp market, i.e., incandescent lamps used in approximately 2
billion sockets, would become illegal. Hough stated that the
requirement needlessly micromanages the economy and sides with green
special interests that deny choice and affordable options. Hough stated
the backstop requirement will make Edison lamps including candelabra
base, globe shape, and colored lamps prohibitively expensive to produce
(i.e., as much as 300 percent over current costs). (Hough, No. 39 at p.
1) One anonymous commenter stated that claims that switching to LED
lighting will save consumers up to $300 per year do not seem possible
as their lighting costs were $96 per year prior to moving to LED lamps.
This commenter expressed hope that DOE uses realistic estimates.
(Anonymous, No. 50 at p. 1)
The Free Market Organizations stated their support for DOE's
determination not to set more stringent standards in the December 2019
Final Determination as such standards would have eliminated
incandescent lamps by making them prohibitively expensive, costing
consumers more than could be earned back in energy savings. They stated
DOE has the authority to reassess the existing standard for GSILs, not
by imposing a 45 lm/W standard but by considering an amended standard.
They added that the review process for an amended standard under EPCA
cannot prioritize efficiency above all else and must also ensure
products remain available and product features, performance and
reliability are preserved for consumers. (Free Market Organizations,
No. 65 at p. 2)
As noted in section II.A.3 of this document, this is a non-
discretionary rulemaking, not a routine standards rulemaking that
considers all the factors under 42 U.S.C. 6295(o). Instead, Congress
mandated the 45 lm/W backstop requirement if the Secretary fails to
complete a rulemaking in accordance with clauses (i) through (iv) of 42
U.S.C. 6295(i)(6)(A) or if the final rule does not produce savings that
are greater than or equal to the savings from a minimum efficacy
standard of 45 lm/W. As explained, DOE has determined that it failed to
satisfy these statutory criteria. As such, the backstop requirement has
been triggered.
While analysis is not statutorily required to implement the
backstop requirement once triggered, consistent with E.O. 12866 DOE did
conduct a cost-benefit analysis of implementing the 45 lm/W backstop
for GSLs. DOE estimated the annualized national economic costs and
benefits associated with the implementation of the 45 lm/W backstop
relative to a no-new standard case. DOE first considered the product
price and energy use of commercially available lamp options in the GSL
definition, including those that would be prohibited under
implementation of the 45 lm/W backstop and more efficacious GSLs that
would continue to be available. DOE then developed a shipments model to
project GSL shipments for a thirty-year period between 2022-2051 in the
no-new-standard case and for the 45 lm/W backstop case. Shipments were
estimated using a consumer-choice model sensitive to first cost, energy
savings, lamp lifetime, and the presence of mercury. The shipments
analysis also considered the impact of price learning on product price.
Based on the shipments projections, DOE calculated the national
consumer economic impacts of the 45 lm/W backstop by comparing the
total installed product costs and operating costs in the 45 lm/W
backstop case to the no-new-standards case.
DOE also analyzed the reduction in several greenhouse gases that
would result from the expanded GSL definition and the 45 lm/W backstop
using emissions intensity factors intended to represent the marginal
impacts of the change in electricity consumption associated with
amended or new standards.\16\ As part of the development of this final
rule, for the purpose of complying with the requirements of Executive
Order 12866, DOE considered the estimated monetary benefits from the
reduced emissions of CO2, nitrous oxide
(``N2O''), and methane (``CH4'').
---------------------------------------------------------------------------
\16\ The methodology is described in ``Utility Sector Impacts of
Reduced Electricity Demand'' (Coughlin, 2014; Coughlin 2019).
---------------------------------------------------------------------------
On March 16, 2022, the Fifth Circuit Court of Appeals (No. 22-
30087) granted the federal government's emergency motion for stay
pending appeal of the February 11, 2022, preliminary injunction issued
in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (W.D. La.). As a result of
the Fifth Circuit's order, the preliminary injunction is no longer in
effect, pending resolution of the federal government's appeal of that
injunction or a further court order. Among other things, the
preliminary injunction enjoined the defendants in that case from
``adopting, employing, treating as binding, or relying upon'' the
interim estimates of the social cost of greenhouse gases--which were
issued by the Interagency Working Group on
[[Page 27454]]
the Social Cost of Greenhouse Gases on February 26, 2021--to monetize
the benefits of reducing greenhouse gas emissions. In the absence of
further intervening court orders, DOE will revert to its approach prior
to the injunction and present monetized benefits where appropriate and
permissible under law.
For the purpose of complying with the requirements of Executive
Order 12866, DOE estimates the monetized benefits of the reductions in
emissions of CO2, CH4, and N2O by
using a measure of the social cost (``SC'') of each pollutant (i.e.,
SC-GHGs). These estimates represent the monetary value of the net harm
to society associated with a marginal increase in emissions of these
pollutants in a given year, or the benefit of avoiding that increase.
These estimates are intended to include (but are not limited to)
climate-change-related changes in net agricultural productivity, human
health, property damages from increased flood risk, disruption of
energy systems, risk of conflict, environmental migration, and the
value of ecosystem services. DOE exercises its own judgment in
presenting monetized climate benefits as recommended by applicable
Executive Orders and guidance, and DOE would reach the same conclusion
presented in this notice in the absence of the social cost of
greenhouse gases, including the February 2021 Interim Estimates
presented by the Interagency Working Group on the Social Cost of
Greenhouse Gases.
DOE estimated the global social benefits of CO2,
CH4, and N2O reductions (i.e., SC-GHGs) using the
estimates presented in the Technical Support Document: Social Cost of
Carbon, Methane, and Nitrous Oxide Interim Estimates under Executive
Order 13990 published in February 2021 by the Interagency Working Group
on the Social Cost of Greenhouse Gases (IWG) (IWG, 2021).\17\ The SC-
GHGs is the monetary value of the net harm to society associated with a
marginal increase in emissions in a given year, or the benefit of
avoiding that increase. In principle, SC-GHGs includes the value of all
climate change impacts, including (but not limited to) changes in net
agricultural productivity, human health effects, property damage from
increased flood risk and natural disasters, disruption of energy
systems, risk of conflict, environmental migration, and the value of
ecosystem services. The SC-GHGs therefore, reflects the societal value
of reducing emissions of the gas in question by one metric ton. The SC-
GHGs is the theoretically appropriate value to use in conducting
benefit-cost analyses of policies that affect CO2,
N2O and CH4 emissions. As a member of the IWG
involved in the development of the February 2021 SC-GHG TSD), the DOE
agrees that the interim SC-GHG estimates represent the most appropriate
estimate of the SC-GHG until revised estimates have been developed
reflecting the latest, peer-reviewed science.
---------------------------------------------------------------------------
\17\ See Interagency Working Group on Social Cost of Greenhouse
Gases, Technical Support Document: Social Cost of Carbon, Methane,
and Nitrous Oxide. Interim Estimates Under Executive Order 13990,
Washington, DC, February 2021. Available at: www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf
(last accessed March 17, 2021).
---------------------------------------------------------------------------
The SC-GHGs estimates are presented in DOE's technical support
document (``TSD'') \18\ and were developed over many years, using
transparent process, peer-reviewed methodologies, the best science
available at the time of that process, and with input from the public.
Specifically, in 2009, an interagency working group (IWG) that included
the DOE and other executive branch agencies and offices was established
to ensure that agencies were using the best available science and to
promote consistency in the social cost of carbon (SC-CO2)
values used across agencies. The IWG published SC-CO2
estimates in 2010 that were developed from an ensemble of three widely
cited integrated assessment models (IAMs) that estimate global climate
damages using highly aggregated representations of climate processes
and the global economy combined into a single modeling framework. The
three IAMs were run using a common set of input assumptions in each
model for future population, economic, and CO2 emissions
growth, as well as equilibrium climate sensitivity (ECS)--a measure of
the globally averaged temperature response to increased atmospheric
CO2 concentrations. These estimates were updated in 2013
based on new versions of each IAM. In August 2016 the IWG published
estimates of the social cost of methane (SC-CH4) and nitrous
oxide (SC-N2O) using methodologies that are consistent with
the methodology underlying the SC-CO2 estimates. The
modeling approach that extends the IWG SC-CO2 methodology to
non-CO2 GHGs has undergone multiple stages of peer review.
The SC-CH4 and SC-N2O estimates were developed by
Marten et al. (2015) and underwent a standard double-blind peer review
process prior to journal publication. In 2015, as part of the response
to public comments received to a 2013 solicitation for comments on the
SC-CO2 estimates, the IWG announced a National Academies of
Sciences, Engineering, and Medicine review of the SC-CO2
estimates to offer advice on how to approach future updates to ensure
that the estimates continue to reflect the best available science and
methodologies. In January 2017, the National Academies released their
final report, Valuing Climate Damages: Updating Estimation of the
Social Cost of Carbon Dioxide, and recommended specific criteria for
future updates to the SC-CO2 estimates, a modeling framework
to satisfy the specified criteria, and both near-term updates and
longer-term research needs pertaining to various components of the
estimation process (National Academies, 2017). Shortly thereafter, in
March 2017, President Trump issued Executive Order 13783, which
disbanded the IWG, withdrew the previous TSDs, and directed agencies to
ensure SC-CO2 estimates used in regulatory analyses are
consistent with the guidance contained in OMB's Circular A-4,
``including with respect to the consideration of domestic versus
international impacts and the consideration of appropriate discount
rates'' (E.O. 13783, Section 5(c)).
---------------------------------------------------------------------------
\18\ www.regulations.gov/.
---------------------------------------------------------------------------
On January 20, 2021, President Biden issued Executive Order 13990,
which re-established the IWG and directed it to ensure that the U.S.
Government's estimates of the social cost of carbon and other
greenhouse gases reflect the best available science and the
recommendations of the National Academies (2017). The IWG was tasked
with first reviewing the SC-GHG estimates currently used in Federal
analyses and publishing interim estimates within 30 days of the E.O.
that reflect the full impact of GHG emissions, including by taking
global damages into account. The interim SC-GHG estimates published in
February 2021, specifically the SC-CH4 estimates, are used
here to estimate the climate benefits for this rulemaking. The E.O.
instructs the IWG to undertake a fuller update of the SC-GHG estimates
by January 2022 that takes into consideration the advice of the
National Academies (2017) and other recent scientific literature.
The February 2021 SC-GHG TSD provides a complete discussion of the
IWG's initial review conducted under E.O. 13990. In particular, the IWG
found that the SC-GHG estimates used under E.O. 13783 fail to reflect
the full impact of GHG emissions in multiple ways. First, the IWG found
that a global perspective is essential for SC-GHG
[[Page 27455]]
estimates because it fully captures climate impacts that affect the
United States and which have been omitted from prior U.S.-specific
estimates due to methodological constraints. Examples of omitted
effects include direct effects on U.S. citizens, assets, and
investments located abroad, supply chains, and tourism, and spillover
pathways such as economic and political destabilization and global
migration. In addition, assessing the benefits of U.S. GHG mitigation
activities requires consideration of how those actions may affect
mitigation activities by other countries, as those international
mitigation actions will provide a benefit to U.S. citizens and
residents by mitigating climate impacts that affect U.S. citizens and
residents. If the United States does not consider impacts on other
countries, it is difficult to convince other countries to consider the
impacts of their emissions on the United States. As a member of the IWG
involved in the development of the February 2021 SC-GHG TSD, DOE agrees
with this assessment and, therefore, in this final rule DOE centers
attention on a global measure of SC-GHG. This approach is the same as
that taken in DOE regulatory analyses from 2012 through 2016. Prior to
that, in 2008 DOE presented Social Cost of Carbon (SCC) estimates based
on values the Intergovernmental Panel on Climate Change (IPCC)
identified in literature at that time. As noted in the February 2021
SC-GHG TSD, the IWG will continue to review developments in the
literature, including more robust methodologies for estimating a U.S.-
specific SC-GHG value, and explore ways to better inform the public of
the full range of carbon impacts. As a member of the IWG, DOE will
continue to follow developments in the literature pertaining to this
issue.
While the IWG works to assess how best to incorporate the latest,
peer reviewed science to develop an updated set of SC-GHG estimates, it
set the interim estimates to be the most recent estimates developed by
the IWG prior to the group being disbanded in 2017. The estimates rely
on the same models and harmonized inputs and are calculated using a
range of discount rates. As explained in the February 2021 SC-GHG TSD,
the IWG has recommended that agencies revert to the same set of four
values drawn from the SC-GHG distributions based on three discount
rates as were used in regulatory analyses between 2010 and 2016 and
subject to public comment. For each discount rate, the IWG combined the
distributions across models and socioeconomic emissions scenarios
(applying equal weight to each) and then selected a set of four values
recommended for use in benefit-cost analyses: An average value
resulting from the model runs for each of three discount rates (2.5
percent, 3 percent, and 5 percent), plus a fourth value, selected as
the 95th percentile of estimates based on a 3 percent discount rate.
The fourth value was included to provide information on potentially
higher-than-expected economic impacts from climate change. As explained
in the February 2021 SC-GHG TSD, and DOE agrees, this update reflects
the immediate need to have an operational SC-GHG for use in regulatory
benefit-cost analyses and other applications that was developed using a
transparent process, peer-reviewed methodologies, and the science
available at the time of that process. Those estimates were subject to
public comment in the context of dozens of proposed rulemakings as well
as in a dedicated public comment period in 2013.
The SC-CO2 values used for this final rule were
generated using the values presented in the 2021 update from the IWG's
February 2021 TSD. The SC-CO2 estimates from the latest
interagency update are presented in DOE's TSD. For purposes of
capturing the uncertainties involved in regulatory impact analysis, DOE
has determined it is appropriate to include all four sets of SC-
CO2 values, as recommended by the IWG.\19\ DOE multiplied
the CO2 emissions reduction estimated for each year by the
SC-CO2 value for that year in each of the four cases. To
calculate a present value of the stream of monetary values, DOE
discounted the values in each of the four cases using the specific
discount rate that had been used to obtain the SC-CO2 values
in each case.
---------------------------------------------------------------------------
\19\ For example, the February 2021 TSD discusses how the
understanding of discounting approaches suggests that discount rates
appropriate for intergenerational analysis in the context of climate
change may be lower than 3 percent.
---------------------------------------------------------------------------
The SC-CH4 and SC-N2O values used for this
final rule were generated using the values presented in the 2021 update
from the IWG.\20\ The SC-CH4 and SC-N2O estimates
from the latest interagency update are presented in DOE's TSD. To
capture the uncertainties involved in regulatory impact analysis, DOE
has determined it is appropriate to include all four sets of SC-
CH4 and SC-N2O values, as recommended by the IWG.
DOE multiplied the CH4 and N2O emissions
reduction estimated for each year by the SC-CH4 and SC-
N2O estimates for that year in each of the cases. To
calculate a present value of the stream of monetary values, DOE
discounted the values in each of the cases using the specific discount
rate that had been used to obtain the SC-CH4 and SC-
N2O estimates in each case.
---------------------------------------------------------------------------
\20\ See Interagency Working Group on Social Cost of Greenhouse
Gases, Technical Support Document: Social Cost of Carbon, Methane,
and Nitrous Oxide. Interim Estimates Under Executive Order 13990,
Washington, DC, February 2021. Available at: www.whitehouse.gov/wp-content/uploads/2021/02/TechnicalSupportDocument_SocialCostofCarbonMethaneNitrousOxide.pdf
(last accessed March 17, 2021).
---------------------------------------------------------------------------
The estimated monetary health benefits from the reduced emissions
of sulfur dioxides (``SO2'') and nitrogen oxides
(``NOX'') emissions was estimated based on the latest
benefit per ton estimates for the relevant sector from the EPA's
Benefits Mapping and Analysis Program.\21\
---------------------------------------------------------------------------
\21\ Estimating the Benefit per Ton of Reducing Directly-Emitted
PM2.5, PM2.5 Precursors and Ozone Precursors
from 21 Sectors. www.epa.gov/system/files/documents/2021-10/source-apportionment-tsd-oct-2021_0.pdf.
---------------------------------------------------------------------------
DOE converted the time-series of costs and benefits into annualized
values based on the present value in 2022, as shown in Table IV.1, and
cumulative economic costs and benefits in Table IV.2. DOE calculated
the present value using discount rates of 3 and 7 percent for consumer
costs and health benefits from the reduction of SO2 and
NOX emissions and case-specific discount rates for the value
of the other greenhouse gas (``GHG'') (CO2, N2O,
and CH4) reduction benefits. For presentational purposes,
the climate benefits associated with the average SC-GHG at a 3 percent
discount rate are shown in Table IV.1 and Table IV.2, but the
Department does not have a single central SC-GHG point estimate, and it
emphasizes the importance and value of considering the benefits
calculated using all four SC-GHG estimates.
EEI commented that DOE should utilize metrics in its cost and
benefit calculations for the backstop regulations that reflect the
ongoing efforts by the electric sector on reducing emissions and
deploying clean energy. EEI suggested specifically that the site to
power plant conversion factor utilized in the previous modeling was
outdated. (EEI, No. 61 at p. 3)
DOE notes that in both the LBNL report cited in the December 2021
NOPR and in DOE's analysis for the final rule, the latest projections
for the electric power sector from Energy Information Administration's
Annual Energy Outlook 2021 were used, which reflect the ongoing and
expected changes in U.S. electricity generation. In addition to
addressing EEI's comment regarding the analytical baseline, this
approach is conceptually consistent with DOE's approach in the March
2016
[[Page 27456]]
NOPR, but with updated site to power plant conversion factors.
IPI et al. submitted comments on the application of the social cost
of greenhouse gases in analysis associated with the December 2021 NOPR.
(IPI et al., No. 54 at pp. 1-37). They stated that DOE should expand
upon its rationale for adopting a global damages valuation and for the
range of discount rates it applies to climate effects. Their key
comments were as follows: (1) DOE should affirm that, in its expert
judgment, the working group's social cost estimates are appropriate but
conservative lower bounds that omit significant categories of climate
damages; (2) DOE should provide additional justification for its
reliance on global climate damage valuations, while considering
additional analysis of domestic effects; (3) DOE should provide
additional explanation for its discount rate choices and conduct
sensitivity analysis using lower rates; (4) DOE should defend against
common criticisms of the working group's methodology; (5) DOE should
reconsider its timeframe for costs and benefits and disclose the social
cost of greenhouse gas estimates it applies to year 2051; (6) The
December 2021 NOPR's high net benefits suggest that DOE should favor
early implementation of the backstop standard.
Comments (1) through (4) previously mentioned relate to the social
cost of greenhouse gas emission estimates recommended by the IWG in its
February 2021 TSD.
DOE used the estimates for the SC-GHG from the most recent update
of the IWG in its February 2021 TSD. DOE has determined that the
estimates from the February 2021 TSD (as described more below), are
based upon sound analysis and provide well founded estimates for DOE's
analysis of the impacts of the reductions of emissions anticipated from
the final rule.
The SC-GHG estimates in the February 2021 TSD are interim values
developed under E.O. 13990, for use until revised estimates of the
impacts of climate change can be developed through a more comprehensive
review based on the most recent science and economics. 86 FR 7037, 7040
(Jan. 25, 2021). The SC-GHG estimates used in this analysis were
developed over many years, using a transparent process, peer-reviewed
methodologies, the best science available at the time of that process,
and with input from the public. Specifically, an IWG that included DOE,
the EPA and other executive branch agencies and offices used three
integrated assessment models (IAMs) to develop the SC-CO2
estimates and recommended four global values for use in regulatory
analyses. Those estimates were subject to public comment in the context
of dozens of proposed rulemakings as well as in a dedicated public
comment period in 2013. While DOE recognizes the potential for consumer
and environmental benefits from the prohibition on the sale of GSLs
with an efficacy of less than 45 lm/W, these monetized values for the
estimated emissions reductions are presented for informational
purposes. DOE reiterates that because the backstop requirement in 42
U.S.C. 6295(i)(6)(A)(v) has been triggered, the statute requires DOE to
prohibit sales of GSLs that do not meet the minimum efficacy of 45 lm/
W. This backstop requirement is statutorily prescribed by Congress and
no further analysis is required for its implementation.
Regarding comment (5) mentioned previously, DOE clarifies that it
estimates costs and benefits over the lifetime of GSLs shipped between
2022 and 2051. The final year of the analysis period is 2084. The SC-
GHG values applied between 2051-2070 are the same as those used by the
EPA in a recent regulation strengthening greenhouse gas emission
standards for automobiles.\22\ DOE derived values after 2070 based on
the trend in 2060-2070 in each of the four cases. DOE's technical
report provides the time-series of annual SC-GHG values.
---------------------------------------------------------------------------
\22\ See EPA, Revised 2023 and Later Model Year Light-Duty
Vehicle GHG Emissions Standards: Regulatory Impact Analysis,
Washington, DC, December 2021. Available at: https://www.epa.gov/system/files/documents/2021-12/420r21028.pdf (last accessed January
13, 2022).
---------------------------------------------------------------------------
Regarding comment (6) favoring early implementation, as discussed
in section II.C of this document, Congress prescribed a specific date
for the backstop sales prohibition once triggered. Recognizing the
practicalities associated with the immediate implementation of the 45
lm/W backstop standard for GSLs, DOE will issue guidance regarding
enforcement of the standard.
3. Features of LED Lamps
DOE received several comments regarding features of LED lamps. One
anonymous commenter asked if DOE accounted for the lower power factors
of LED lighting, which is at 70 percent for Energy Star lamps compared
to incandescent lighting which have a 100 percent power factor).
(Anonymous, No. 41 at p. 1) A separate anonymous commenter asked if DOE
is considering the loss of energy savings due to the ``rebound effect''
of less dimming of LED lighting compared to incandescent due to some
LED lamps not being dimmable, others not dimming as far as incandescent
lamps, or some consumers replacing dimmers with toggle switches to
lower the cost of switching from incandescent lamps to non-dimmable LED
lamps. (Anonymous, No. 42 at p. 1) A third anonymous commenter stated
that if 10 percent of lighting in a home is on a dimmer DOE should
account for the cost of replacing incandescent dimmers with LED-
compatible dimmers, and further stated that such dimmers cost anywhere
from $20-50 and the cost of the electrician labor is at least $100 per
visit. (Anonymous, No. 40 at p. 1) Project 21 stated LED lamps cannot
dim the same way Edison lamps do and result in loss of aesthetics as
they cannot function in older fixtures such as antique chandeliers.
(Project 21, No. 44 at pp. 1-2) The Free Market Organizations stated
that LED lamps are more efficient and longer-lasting but cost more than
incandescent bulbs and have inferior dimming. (Free Market
Organizations, No. 65 at p. 4)
As DOE has previously noted, this is not a discretionary standards
rulemaking subject to evaluation of the factors at 42 U.S.C. 6295(o).
However, consistent with E.O. 12866, DOE notes that it has provided a
cost-benefit analysis of implementing the 45 lm/W backstop for GSLs,
which is discussed in greater detail for the public in section IV.A.
Power factor is the ratio of the real power (wattage used by the lamp)
to the apparent power (voltage multiplied by current drawn by the lamp
circuit and what the electrical grid must withstand). A low power
factor indicates that the lamp circuit is drawing more current than is
being utilized. DOE's review of the market indicates that there are a
substantial number of LED lamps with a power factor of 0.9 or greater.
It also indicates that dimmable versions of LED lamps are readily
available as well as a wide range of LED lamps with decorative shapes
such as bullet, candle, flare and globe. Additionally, in response to
the August 2021 Definition NOPR, NEMA commented that the rapid shift of
decorative lamps (i.e., T-Shape, B, BA, F, G16-1/2, G25, G30, S and M-
14 shapes) to LED technology has been occurring for over 9 years and is
nearing completion by market forces alone. NEMA also estimated the
total market volume of decorative lamps at 950 million; and 520 million
out of 665 million on mostly switch-controlled sockets have already
been converted to LED technology, with 285 million incandescent
decorative lamps on dimmers that would need to switch to LED
technology. (NEMA, EERE-2021-
[[Page 27457]]
BT-STD-001, No. 20 \23\ at pp. 3-4) NEMA's estimations indicate that a
substantive conversion to LED dimmer technology has been taking place
for decorative lamps and therefore, is economically feasible for
consumers. Additionally, dimming of solid-state lighting is the subject
of continual research and development such as dim-to-warm LED products
which can mimic the dimming of incandescent lamps.\24\ DOE notes that
while the costs of replacing dimmers is not quantified here, the cost
is not significant with respect to the operating costs savings of LED
lamps relative to incandescent lamps. Regarding the rebound effect, DOE
clarifies that it assumed no rebound in its estimate of the annualized
national economic costs and benefits as a result of the implementation
of the backstop (see section IV.A), consistent with the analysis in the
March 2016 NOPR and in the December 2019 Final Determination.
---------------------------------------------------------------------------
\23\ Available at www.regulations.gov/docket/EERE-2021-BT-STD-0012.
\24\ U.S. Department of Energy, Dim-to-Warm LED Lighting: Stress
Testing Results for Select Products, January 2020, available at
https://www.energy.gov/sites/default/files/2020/04/f73/ssl-d2w-led-stress-testing-2020.pdf.
---------------------------------------------------------------------------
4. Potential Health and Safety Concerns
Sherman commented that they are unable to see clearly or spend more
than a few minutes under LED or fluorescent lighting without severe
problems such as headaches. (Sherman, No. 35 at p. 1) Maier asserted
that the backstop requirement violates the Americans with Disabilities
Act (``ADA'') and requested that incandescent lamps continue to be
available. Maier referenced a comment on the DOE website, in which the
commenter stated they have a disability and cannot tolerate LED lamps
and states that such an individual is protected under the ADA to use
incandescent lamps. Maier further stated that Title 2 of ADA requires
that individuals be consulted before implementation of such standards
and that Title 1 of ADA requires reasonable accommodation for those
with disabilities. (Maier, No. 47 at p. 1)
As discussed, DOE is codifying the backstop requirement as mandated
by EPCA. DOE notes that the backstop requirement does not mandate the
use of a particular technology and instead prohibits the sale of lamps
below a specified efficiency (i.e., 45 lm/W). (42 U.S.C.
6295(i)(6)(A)(v)) Though the public comments do not include
quantitative evidence of specific lighting technology characteristics
relevant to health, DOE has considered these public comments. DOE
researched studies and other publications to ascertain any known
impacts of LED lamps on human health and has not found any evidence
concluding that LED lighting used for general lighting applications
directly results in adverse health effects.\25\ Additionally, DOE notes
that the ADA does not apply to DOE for purposes of this rule, as the
ADA only applies to private employers and not Federal agencies.
Individuals wishing to file complaints under the ADA can visit
www.ada.gov.
---------------------------------------------------------------------------
\25\ European Commission, ``Scientific Committee on Health,
Environmental and Emerging Risks (SCHEER) Report,'' June 2018.
Available at https://ec.europa.eu/health/system/files/2019-02/scheer_o_011_0.pdf; Cleveland Clinic, ``Are LED Lights Damaging Your
Retina?'' August 9, 2019. Available at https://health.clevelandclinic.org/are-led-lights-damaging-your-retina/;
Light Europe, ``Frequently Asked Questions on alleged LED health
related issues,'' December 2016. Available at https://www.lightingeurope.org/images/publications/general/FAQ_on_alleged_LED_related_health_issues_-_December_2016.pdf.
---------------------------------------------------------------------------
Glass and Walton commented regarding their concerns with the
detrimental effects of LED technology in transportation applications
(e.g., motor vehicle lamps, street lamps, construction equipment).
(Glass, No. 36 at p. 1; Walton, No. 37 at pp. 1-2)
GSLs and GSILs are covered under Part B of EPCA, which authorizes
the regulation of certain consumer products. For the purpose of Part B,
the definition of ``consumer product'' excludes products used in
automobiles. (See 42 U.S.C. 6291(1)) Further, covered GSILs do not
include those consumer products designed solely for use in recreational
vehicles and other mobile equipment. (See 42 U.S.C. 6292(a))
Additionally, the GSL definition adopted in the 2022 Definitions Final
Rule excludes lamps with lumens greater than 3,300 lumens (see section
II.B of this document). Streetlamps and lighting for construction
applications are generally 5,000 lumens or greater. Further, the
definition of GSL excludes street signal lamps. As such, the lamps
relevant to the concerns raised by Glass and Walton are generally not
covered as GSLs and are not subject to the backstop requirement.
Sherman commented that incandescent lamps provide additional
warming which can offset heating costs and can be used to keep water
pipes from freezing where otherwise a space heater is used, which can
be a fire hazard. (Sherman, No. 35 at p. 1) Glass stated that LED lamps
are uncomfortable and also disruptive to animal and plant life. (Glass,
No. 36 at p. 1)
Regarding the ability of incandescent lamps to provide heat in
certain circumstances (e.g., to keep pipes from freezing), DOE notes
that the statutory backstop requirement applies to GSLs, which as
defined exempts infrared lamps which have the primary purpose of
providing heat (see section II.B of this document).
DOE researched this issue and did not identify any studies
indicating that LED lamps have an adverse impact on animal and plant
life.
A private citizen commented that incandescent/halogen lamps are
being banned while less-efficient gas lights are still allowed to be
sold in the U.S. They stated that a gas light uses 2500 British thermal
units (``Btu'') or 732 W to produce the same amount of light as a 60 W
incandescent or a 42-43 W halogen lamp and has a continuously burning
pilot light that uses energy. (Anonymous, No. 49 at p. 1)
The 45 lm/W backstop requirement is applicable to all GSLs, and is
not specific to any one lighting technology such as incandescent or
halogen lighting. Therefore, the sale of any lamp that meets the
definition of a GSL and has an efficacy less than 45 lm/W will be
prohibited.
III. Conclusion
DOE has determined that the statutory 45 lm/W backstop requirement
that applies to GSLs in 42 U.S.C. 6295(i)(6)(A)(v) has been triggered.
This final rule codifies the backstop requirement at 10 CFR 430.32.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866
This final rule is an economically significant regulatory action
under E.O. 12866, ``Regulatory Planning and Review.'' 58 FR 51735
(October 4, 1993). Accordingly, this action was subject to review by
OIRA in the Office of Management and Budget (``OMB''). Pursuant to
section 6(a)(3)(C) of the Order, DOE has provided to OIRA an
assessment, including the underlying analysis, of benefits and costs
anticipated from the regulatory action, together with, to the extent
feasible, a quantification of those costs. This assessment can be found
in DOE's technical report that accompanies this rulemaking and the
methodology is summarized in section II.D.2 of this document.
[[Page 27458]]
Table IV.1--Summary of Annualized Costs and Benefits, 2022-2051
----------------------------------------------------------------------------------------------------------------
Million 2020$/year
--------------------------------------------------------
Low-net-benefits High-net-benefits
Primary estimate estimate estimate
----------------------------------------------------------------------------------------------------------------
3% discount rate
----------------------------------------------------------------------------------------------------------------
Consumer Operating Cost Savings........................ 2,955.1 2,788.0 3,128.8
Climate Benefits *..................................... 591.0 571.1 606.0
Health Benefits **..................................... 1,100.5 1,063.8 1,128.2
Total Benefits [dagger]................................ 4,646.6 4,422.9 4,863.0
Consumer Incremental Product Costs [Dagger]............ 148.9 150.9 145.0
Net Benefits........................................... 4,497.7 4,272.0 4,718.1
----------------------------------------------------------------------------------------------------------------
7% discount rate
----------------------------------------------------------------------------------------------------------------
Consumer Operating Cost Savings........................ 2,864.5 2,725.3 3,010.0
Climate Benefits *..................................... 591.0 571.1 606.0
Health Benefits **..................................... 960.8 932.4 982.3
Total Benefits [dagger]................................ 4,416.4 4,228.8 4,598.4
Consumer Incremental Product Costs [Dagger]............ 177.6 180.3 173.0
Net Benefits........................................... 4,238.8 4,048.5 4,425.3
----------------------------------------------------------------------------------------------------------------
Note: This table presents the costs and benefits associated with all GSLs shipped in 2022-2051. These results
include benefits to consumers which accrue after 2051 from the products shipped in 2022-2051. This analysis
presents costs and benefits assuming compliance beginning in 2022. As DOE has explained, DOE will release
enforcement guidance simultaneously with this rulemaking. If significant compliance behavior changes result
from enforcement discretion, both benefits and costs could be reduced for the relevant years, although DOE
expects the net benefits will not be significantly changed.
* Climate benefits are calculated using four different estimates of the social cost of carbon (SC-CO2), methane
(SC-CH4), and nitrous oxide (SC-N2O) (model average at 2.5 percent, 3 percent, and 5 percent discount rates;
95th percentile at 3 percent discount rate). Together these represent the global social cost of greenhouse
gases (SC-GHG). For presentational purposes of this table, the climate benefits associated with the average SC-
GHG at a 3 percent discount rate are shown, but the Department does not have a single central SC-GHG point
estimate. See the accompanying technical report for details.
** Health benefits are calculated using benefit-per-ton values for NOX and SO2. DOE is currently only monetizing
(for SO2 and NOX) PM2.5 precursor health benefits and (for NOX) ozone precursor health benefits, but will
continue to assess the ability to monetize other effects such as health benefits from reductions in direct
PM2.5 emissions. The health benefits are presented at real discount rates of 3 and 7 percent.
[dagger] Total and net benefits include consumer, climate and health benefits. For presentation purposes, total
and net benefits for both the 3-percent and 7-percent cases are presented using the average SC-GHG with 3-
percent discount rate, but the Department does not have a single central SC-GHG point estimate. DOE emphasizes
the importance and value of considering the benefits calculated using all four SC-GHG estimates. On March 16,
2022, the Fifth Circuit Court of Appeals (No. 22-30087) granted the federal government's emergency motion for
stay pending appeal of the February 11, 2022, preliminary injunction issued in Louisiana v. Biden, No. 21-cv-
1074-JDC-KK (W.D. La.). As a result of the Fifth Circuit's order, the preliminary injunction is no longer in
effect, pending resolution of the Federal government's appeal of that injunction or a further court order. The
preliminary injunction enjoined the Federal government from relying on the interim estimates of the social
cost of greenhouse gases--which were issued by the Interagency Working Group on the Social Cost of Greenhouse
Gases on February 26, 2021--to monetize the benefits of reducing greenhouse gas emissions. In the absence of
further intervening court orders, DOE will revert to its approach prior to the injunction and present
monetized benefits in accordance with applicable Executive orders.
[Dagger] Costs include incremental equipment costs as well as installation costs.
Table IV.2--Summary of Cumulative Monetized Economic Benefits and Costs
for All GSLs, 2022-2051
------------------------------------------------------------------------
Billion 2020$
------------------------------------------------------------------------
3% discount rate
------------------------------------------------------------------------
Consumer Operating Cost Savings...................... 59.7
Climate Benefits *................................... 11.9
Health Benefits **................................... 22.2
Total Benefits [dagger].............................. 93.8
Consumer Incremental Product Costs [Dagger].......... 3.0
Net Benefits......................................... 90.8
------------------------------------------------------------------------
7% discount rate
------------------------------------------------------------------------
Consumer Operating Cost Savings...................... 38.0
Climate Benefits *................................... 11.9
Health Benefits **................................... 12.8
Total Benefits [dagger].............................. 62.7
Consumer Incremental Product Costs [Dagger].......... 2.4
Net Benefits......................................... 60.4
------------------------------------------------------------------------
Note: This table presents the costs and benefits associated with all
GSLs shipped in 2022-2051 using a present year of 2022. These results
include benefits to consumers which accrue after 2051 from the
products shipped in 2022-2051.
* Climate benefits are calculated using four different estimates of the
social cost of carbon (SC-CO2), methane (SC-CH4), and nitrous oxide
(SC-N2O) (model average at 2.5 percent, 3 percent, and 5 percent
discount rates; 95th percentile at 3 percent discount rate). Together
these represent the global social cost of greenhouse gases (SC-GHG).
For presentational purposes of this table, the climate benefits
associated with the average SC-GHG at a 3 percent discount rate are
shown, but the Department does not have a single central SC-GHG point
estimate.
[[Page 27459]]
** Health benefits are calculated using benefit-per-ton values for NOX
and SO2. DOE is currently only monetizing (for SO2 and NOX) PM2.5
precursor health benefits and (for NOX) ozone precursor health
benefits, but will continue to assess the ability to monetize other
effects such as health benefits from reductions in direct PM2.5
emissions. The health benefits are presented at real discount rates of
3 and 7 percent.
[dagger] Total and net benefits include consumer, climate, and health
benefits. For presentation purposes, total and net benefits for both
the 3-percent and 7-percent cases are presented using the average SC-
GHG with 3-percent discount rate, but the Department does not have a
single central SC-GHG point estimate. DOE emphasizes the importance
and value of considering the benefits calculated using all four SC-GHG
estimates. On March 16, 2022, the Fifth Circuit Court of Appeals (No.
22-30087) granted the federal government's emergency motion for stay
pending appeal of the February 11, 2022, preliminary injunction issued
in Louisiana v. Biden, No. 21-cv-1074-JDC-KK (W.D. La.). As a result
of the Fifth Circuit's order, the preliminary injunction is no longer
in effect, pending resolution of the Federal government's appeal of
that injunction or a further court order. The preliminary injunction
enjoined the Federal government from relying on the interim estimates
of the social cost of greenhouse gases--which were issued by the
Interagency Working Group on the Social Cost of Greenhouse Gases on
February 26, 2021--to monetize the benefits of reducing greenhouse gas
emissions. In the absence of further intervening court orders, DOE
will revert to its approach prior to the injunction and present
monetized benefits in accordance with applicable Executive orders.
[Dagger] Costs include incremental equipment costs as well as
installation costs.
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 E.O. 13272, ``Proper Consideration of Small Entities in Agency
Rulemaking,'' 67 FR 53461 (Aug. 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 website
(energy.gov/gc/office-general-counsel).
DOE reviewed this final rule under the provisions of the Regulatory
Flexibility Act and the policies and procedures published on February
19, 2003. DOE is revising the Code of Federal Regulations to
incorporate and implement the backstop requirement for general service
lamps that Congress prescribed in EPCA. Because DOE is not imposing
additional costs beyond those required by statute, DOE concludes and
certifies that this final rule has no significant economic impact on a
substantial number of small entities and the preparation of a FRFA is
not warranted.
C. Review Under the Paperwork Reduction Act
This final rule imposes no new information or record keeping
requirements. Accordingly, Office of Management and Budget 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
DOE has analyzed this regulation in accordance with the National
Environmental Policy Act (NEPA) and DOE's NEPA implementing regulations
(10 CFR part 1021). DOE's regulations include a categorical exclusion
for rulemakings interpreting or amending an existing rule or regulation
that does not change the environmental effect of the rule or regulation
being amended. 10 CFR part 1021, subpart D, appendix A5. DOE has
completed the necessary review under NEPA and has determined that this
rulemaking qualifies for categorical exclusion A5 because it is
amending a rule that does not change the environmental effect of the
rule and otherwise meets the requirements for application of a
categorical exclusion. See 10 CFR 1021.410. Therefore, DOE has made a
CX determination for this rulemaking, and DOE does not need to prepare
an Environmental Assessment or Environmental Impact Statement for this
final rule. DOE's CX determination for this final rule is available at
energy.gov/nepa/categorical-exclusioncx-determinations-cx.
E. Review Under Executive Order 13132
E.O. 13132, ``Federalism,'' 64 FR 43255 (Aug. 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. DOE has examined this final rule and has
determined that it would 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. EPCA governs and prescribes Federal
preemption of State regulations as to energy conservation for the
products that are the subject of this proposed rule. States can
petition DOE for exemption from such preemption to the extent, and
based on criteria, set forth in EPCA. 42 U.S.C. 6297. 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 E.O. 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 E.O. 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 E.O. 12988.
[[Page 27460]]
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 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 ``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
energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
This final rule codifies the sales prohibition of GSLs with an
efficacy of less than 45 lm/W prescribed in 42 U.S.C. 6295(i)(6)(A)(v).
As this final rule would incorporate requirements specifically set
forth in law, an assessment under UMRA is not required and has not been
conducted.
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 rule would 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 E.O. 12630, ``Governmental Actions and Interference
with Constitutionally Protected Property Rights,'' 53 FR 8859 (March
18, 1988), DOE has determined that this rule would 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). Pursuant to OMB Memorandum M-19-15, Improving
Implementation of the Information Quality Act (April 24, 2019), DOE
published updated guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has
reviewed this final rule 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
E.O. 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 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 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.
DOE has concluded that this regulatory action is not a significant
energy action because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy, nor has it been
designated as such by the Administrator at OIRA. Accordingly, DOE has
not prepared a Statement of Energy Effects on this final rule.
L. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is 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 this final
rule.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Household appliances, Imports,
Intergovernmental relations, Reporting and recordkeeping requirements,
Small businesses.
Signing Authority
This document of the Department of Energy was signed on April 26,
2022, by Kelly J. Speakes-Backman, Principal Deputy Assistant Secretary
for Energy Efficiency and Renewable Energy, pursuant to delegated
authority from the Secretary of Energy. That document with the original
signature and date is maintained by DOE. For administrative purposes
only, and in compliance with requirements of the Office of the Federal
Register, the undersigned DOE Federal Register Liaison Officer has been
authorized to sign and submit the document in electronic format for
publication, as an official document of the Department of Energy. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Signed in Washington, DC, on April 28, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, DOE amends part 430 of
chapter II of title 10 of the Code of Federal Regulations, 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. Amend Sec. 430.32 by:
0
a. Revising the introductory text to paragraphs (n)(5) and (6), (u)(1),
and (x)(1);
[[Page 27461]]
0
b. Revising paragraphs (x)(2) and (3);
0
c. Revising the introductory text to paragraphs (bb)(1) and (2); and
0
d. Adding paragraph (dd).
The revisions and addition read as follows:
Sec. 430.32 Energy and water conservation standards and their
compliance dates.
* * * * *
(n) * * *
(5) Subject to the sales prohibition in paragraph (dd) of this
section, and except as provided in paragraph (n)(6) of this section,
each of the following incandescent reflector lamps manufactured after
November 1, 1995, shall meet or exceed the lamp efficacy standards
shown in the table:
* * * * *
(6) Subject to the sales prohibition in paragraph (dd) of this
section, each of the following incandescent reflector lamps
manufactured after July 14, 2012, shall meet or exceed the lamp
efficacy standards shown in the table:
* * * * *
(u) * * *
(1) Medium Base Compact Fluorescent Lamps. Subject to the sales
prohibition in paragraph (dd) of this section, a bare or covered (no
reflector) medium base compact fluorescent lamp manufactured on or
after January 1, 2006, must meet the following requirements:
* * * * *
(x) * * *
(1) Subject to the sales prohibition in paragraph (dd) of this
section, the energy conservation standards in this paragraph apply to
general service incandescent lamps:
* * * * *
(2) Subject to the sales prohibition in paragraph (dd) of this
section, each candelabra base incandescent lamp shall not exceed 60
rated watts.
(3) Subject to the sales prohibition in paragraph (dd) of this
section, each intermediate base incandescent lamp shall not exceed 40
rated watts.
* * * * *
(bb) * * *
(1) Subject to the sales prohibition in paragraph (dd) of this
section, rough service lamps manufactured on or after January 25, 2018
must:
* * * * *
(2) Subject to the sales prohibition in paragraph (dd) of this
section, vibration service lamps manufactured on or after January 25,
2018 must:
* * * * *
(dd) General service lamp. Beginning July 25, 2022 the sale of any
general service lamp that does not meet a minimum efficacy standard of
45 lumens per watt is prohibited.
[FR Doc. 2022-09477 Filed 5-6-22; 8:45 am]
BILLING CODE 6450-01-P