[Federal Register Volume 87, Number 170 (Friday, September 2, 2022)]
[Rules and Regulations]
[Pages 54123-54129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18862]



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 Rules and Regulations
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  Federal Register / Vol. 87, No. 170 / Friday, September 2, 2022 / 
Rules and Regulations  

[[Page 54123]]



DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2022-BT-DET-0006]
RIN 1904-AF31


Energy Conservation Program: Final Determination of Portable 
Electric Spas as a Covered Consumer Product

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

ACTION: Final rule; final determination.

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SUMMARY: The U.S. Department of Energy (``DOE'') has determined that 
portable electric spas qualify as a covered product under Part A of 
Title III of the Energy Policy and Conservation Act, as amended 
(``EPCA''). DOE has determined that classifying portable electric spas 
as covered products is necessary or appropriate to carry out the 
purposes of EPCA, and that the average U.S. household energy use for 
portable electric spas is likely to exceed 100 kilowatt-hours per year.

DATES: This final rule is effective November 1, 2022.

ADDRESSES: The docket for this rulemaking, which includes Federal 
Register notices, 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-2022-BT-DET-0006. The docket web page contains instructions on how 
to access all documents, including public comments, in the docket.

FOR FURTHER INFORMATION CONTACT: Mr. Jeremy Dommu, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, Building 
Technologies Office, EE-2J, 1000 Independence Avenue SW, Washington, DC 
20585-0121. Telephone: (202) 586-9870. Email: 
[email protected].
    Ms. Kristin Koernig, U.S. Department of Energy, Office of the 
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 
20585-0121. Telephone: (202) 586-3593. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory Authority
II. Current Rulemaking Process
III. General Discussion
    A. Scope of Coverage
    B. Evaluation of Portable Electric Spas as a Covered Product 
Subject to Energy Conservation Standards
    1. Coverage Necessary or Appropriate To Carry Out Purposes of 
EPCA
    2. Average Household Energy Use
IV. Final Determination
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866 and 13563
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act of 1999
    I. Review Under Executive Order 12630
    J. Review Under the Treasury and General Government 
Appropriations Act of 2001
    K. Review Under Executive Order 13211
    L. Information Quality
    M. Congressional Notification
VI. Approval of the Office of the Secretary

I. Statutory Authority

    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, 
which sets forth a variety of provisions designed to improve energy 
efficiency for certain consumer products, referred to generally as 
``covered products.'' \3\ In addition to specifying a list of consumer 
products that are covered products, EPCA contains provisions that 
enable the Secretary of Energy to classify additional types of consumer 
products as covered products. For a given consumer product to be 
classified as a covered product, the Secretary must determine that: 
classifying the product as a covered product is necessary or 
appropriate to carry out the purposes of EPCA; and the average annual 
per-household energy use by products of such type is likely to exceed 
100 kilowatt-hours (``kWh'') (or its British thermal unit (``Btu'') 
equivalent) per year. (42 U.S.C. 6292(b)(1)) \4\
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    \1\ All references to EPCA in this document refer to the statute 
as amended through the Energy Act of 2020, Public Law 116-260 (Dec. 
27, 2020), which reflect the last statutory amendments that impact 
Parts A and A-1 of EPCA.
    \2\ For editorial reasons, upon codification in the U.S. Code, 
Part B was redesignated Part A.
    \3\ The enumerated list of covered products is at 42 U.S.C. 
6292(a)(1)-(19).
    \4\ DOE has defined ``household'' to mean an entity consisting 
of either an individual, a family, or a group of unrelated 
individuals, who reside in a particular housing unit. For the 
purpose of this definition:
    Group quarters means living quarters that are occupied by an 
institutional group of 10 or more unrelated persons, such as a 
nursing home, military barracks, halfway house, college dormitory, 
fraternity or sorority house, convent, shelter, jail or correctional 
institution.
    Housing unit means a house, an apartment, a group of rooms, or a 
single room occupied as separate living quarters, but does not 
include group quarters.
    Separate living quarters means living quarters to which the 
occupants have access either directly from outside of the building, 
or through a common hall that is accessible to other living quarters 
and that does not go through someone else's living quarters, and is 
occupied by one or more persons who live and eat separately from 
occupant(s) of other living quarters, if any, in the same building. 
10 CFR 430.2.
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    When considering covering additional consumer product types, DOE 
must first determine whether these criteria from 42 U.S.C. 6292(b)(1) 
are met. Once a determination is made, the Secretary may prescribe test 
procedures to measure the energy efficiency or energy use of such 
product. (42 U.S.C. 6293(a)) Furthermore, once a product is determined 
to be a covered product, the Secretary may establish standards for such 
product, subject to the provisions in 42 U.S.C. 6295(o) and (p), 
provided that DOE determines that the additional criteria at 42 U.S.C. 
6295(l) have been met. Specifically, 42 U.S.C. 6295(l) requires the 
Secretary to determine that: the average household energy use of the 
products has exceeded 150 kWh per household for a 12-month period; the

[[Page 54124]]

aggregate 12-month energy use of the products has exceeded 4200 
gigawatt-hours; substantial improvement in energy efficiency of 
products of such type is technologically feasible; and application of a 
labeling rule under 42 U.S.C. 6294 is unlikely to be sufficient to 
induce manufacturers to produce, and consumers and other persons to 
purchase, covered products of such type (or class) that achieve the 
maximum energy efficiency that is technologically feasible and 
economically justified. (42 U.S.C. 6295(l)(1))

II. Current Rulemaking Process

    DOE has not previously conducted a rulemaking for portable electric 
spas. On February 16, 2022, DOE published in the Federal Register a 
notice of proposed determination of coverage (``NOPD''), in which it 
determined tentatively that portable electric spas satisfy the 
provisions of 42 U.S.C. 6292(b)(1) (``February 2022 NOPD''). 87 FR 
8745.
    DOE received comments in response to the February 2022 NOPD from 
the interested parties listed in Table II.1.

                     Table II.1--Written Comments Received in Response to February 2022 NOPD
----------------------------------------------------------------------------------------------------------------
                                                                         Document No.
             Commenter(s)                        Abbreviation              in docket         Commenter type
----------------------------------------------------------------------------------------------------------------
Pool and Hot Tub Alliance (``PHTA'')   PHTA/IHTA......................               3  Trade Association.
 and International Hot Tub
 Association (``IHTA'').
The Appliance Standards Awareness      ASAP et al.....................               7  Efficiency Organization.
 Project (``ASAP''), the American
 Council for an Energy-Efficient
 Economy, the Natural Resources
 Defense Council, and the Northwest
 Energy Efficiency Alliance.
California Energy Commission.........  CEC............................               4  State Agency.
New York State Energy Research and     NYSERDA........................               6  State Agency.
 Development Authority..
Pacific Gas and Electric Company, San  CA IOUs........................               5  Utility.
 Diego Gas and Electric, and Southern
 California Edison; collectively, the
 California Investor-Owned Utilities.
----------------------------------------------------------------------------------------------------------------

    A parenthetical reference at the end of a comment quotation or 
paraphrase provides the location of the item in the public record.\5\
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    \5\ The parenthetical reference provides a reference for 
information located in the docket of DOE's rulemaking to determine 
coverage for portable electric spas. (Docket No. EERE-2022-BT-DET-
0006, which is maintained at www.regulations.gov). The references 
are arranged as follows: (commenter name, comment docket ID number, 
page of that document).
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    In response to the February 2022 NOPD, DOE received certain 
comments pertaining to the scope of coverage and energy use that are 
relevant for the statutory requirements of coverage for portable 
electric spas. DOE discusses these comments in the following sections. 
DOE also received certain comments in response to the February 2022 
NOPD pertaining to potential test procedure or standards 
rulemakings.\6\ DOE will discuss these comments in subsequent 
rulemakings, should DOE pursue such rulemakings.
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    \6\ Portions of the comments from PHTA/IHTA (No. 3), CEC (No. 
4), CA IOUs (No. 5), NYSERDA (No. 6), and ASAP et al. (No. 7) 
pertained to potential test procedure or standards rulemakings.
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    After considering the public comments on the February 2022 NOPD, 
DOE is issuing this final determination of coverage for portable 
electric spas. DOE is not prescribing test procedures or energy 
conservation standards as part of this determination.

III. General Discussion

    Portable electric spas are factory-built hot tubs or spas that are 
intended for the immersion of people in heated, temperature-controlled 
water that is circulated in a closed system. DOE's analysis and 
consideration of comments received in response to the February 2022 
NOPD indicate that portable electric spas meet the statutory 
requirements under 42 U.S.C. 6292(b)(1), and therefore DOE is issuing 
this final determination that portable electric spas are a covered 
product.
    DOE will consider test procedure and energy conservation standards 
rulemakings for portable electric spas in the future. DOE will 
determine if portable electric spas satisfy the provisions of 42 U.S.C. 
6295(l)(1) during the course of the energy conservation standards 
rulemaking, should DOE pursue such rulemaking.
    While DOE received comments on specific topics in response to the 
February 2022 NOPD, as discussed in sections III.A and III.B of this 
document, commenters also provided general feedback on the proposed 
determination of coverage for portable electric spas.
    PHTA/IHTA supported DOE's proposed determination that portable 
electric spas are a covered consumer product and that such coverage is 
necessary and appropriate to carry out the purposes of EPCA. PHTA/IHTA 
asserted that portable electric spas meet the EPCA thresholds and that 
a final determination of coverage is warranted and appropriate. PHTA/
IHTA encouraged DOE to proceed with both test procedure and standards 
rulemakings. (PHTA/IHTA, No. 3 at p. 2)
    The CEC agreed that portable electric spas meet the necessary 
requirements for coverage under EPCA and supported the proposed 
determination to include portable electric spas as a federally covered 
product. (CEC, No. 4 at pp. 1, 5) The CA IOUs supported also the 
inclusion of portable electric spas as a covered product. (CA IOUs, No. 
5 at p. 1) Similarly, NYSERDA, and ASAP at al. supported DOE's 
preliminary determination that portable electric spas qualify as 
covered products under EPCA. (NYSERDA, No. 6 at pp. 1-2; ASAP et al., 
No. 7 at p. 1)
    In this final determination, DOE is classifying portable electric 
spas as a covered product.

A. Scope of Coverage

    As stated previously in this document, portable electric spas are 
factory-built hot tubs or spas that are intended for the immersion of 
people in heated, temperature-controlled water that is circulated in a 
closed system. A wide range of portable electric spa products are 
available on the market, including standard spas, exercise spas, 
combination spas, and inflatable spas.
    In the February 2022 NOPD, DOE examined existing classifications of 
portable electric spas to inform its proposed definition. PHTA 
publishes a standard method of test, certified by American National 
Standards Institute (``ANSI''), for measuring the performance of 
portable electric spas, titled ANSI/Association of Pool and Spa 
Professionals (``APSP'')/International Code Council (``ICC'') 14 2019, 
American National Standard for Portable Electric Spa Energy Efficiency 
(``ANSI/APSP/ICC-14 2019'' or ``APSP-

[[Page 54125]]

14'').\7\ Section 3 of ANSI/APSP/ICC-14 2019 defines ``Portable 
Electric Spa'' as ``a factory built electric spa or hot tub, supplied 
with equipment for heating and circulating water at the time of sale or 
sold separately for subsequent attachment'' and includes additional 
definitions for ``spa'' and various categories of portable electric 
spa. The CEC regulations define ``portable electric spa'' and most of 
the spa categories consistently with ANSI/APSP/ICC-14 2019,\8\ though 
the CEC does not define the term ``spa''.
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    \7\ ANSI/APSP/ICC-14 2019 is available at: webstore.ansi.org/standards/apsp/ansiapspicc142019.
    \8\ See section 1602(g)(2) of Article 4 of Division 2 of Title 
20 of the California Code of Regulations. There is some variation in 
the definition of exercise spa as compared to ANSI/APSP/ICC-14 2019.
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    For the purpose of the analysis described in the February 2022 
NOPD, DOE evaluated portable electric spas as factory-built electric 
spas or hot tubs, supplied with equipment for heating and circulating 
water at the time of sale or sold separately for subsequent attachment. 
DOE proposed to adopt this definition, consistent with the term as 
defined by ANSI/APSP/ICC-14 2019 and the CEC, to inform stakeholders 
while DOE continued its analysis. 87 FR 8745, 8747. DOE noted that this 
proposed definition would exclude units that are site-assembled, such 
as spas that are permanently installed in the ground or attached to a 
pool, and spas sold with methods of water heating other than 
electricity, such as propane or natural gas spa heaters or wood-fired 
hot tubs. Id. DOE requested comment on the proposed definition and 
scope of coverage of portable electric spas. Id.
    In response to the February 2022 NOPD, PHTA/IHTA expressed support 
for the proposed definition and scope but noted that it is important to 
clarify that portable electric spas are not permanently installed in 
the ground or attached to a pool. PHTA/IHTA suggested that DOE consider 
defining other types of ``spa'' products and indicating that they are 
excluded from coverage. For this purpose, PHTA/IHTA stated that DOE 
should consider utilizing definitions commonly used by industry and 
state and local governments that can be found in widely adopted ANSI 
standards and codes, such as the International Swimming Pool & Spa Code 
co-developed by the ICC and PHTA. PHTA/IHTA also encouraged DOE to 
utilize the APSP-14 definition for inflatable spa. (PHTA/IHTA, No. 3 at 
pp. 3-4)
    The CEC stated that, because California, along with other states, 
has adopted APSP-14 in its entirety, the CEC encouraged DOE to consider 
matching the scope, definitions, test procedure, and label design 
specified in APSP-14 to maintain consistency among states and spa 
manufacturers. (CEC No. 4, at p. 5) The CA IOUs supported the proposed 
definition adopting APSP-14 nomenclature and the distinction between 
self-contained \9\ versus non-self-contained units, as well as the 
proposed scope. (CA IOUs, No. 5 at p. 3) ASAP et al. also supported the 
proposed scope of coverage, which they understand would include 
standard spas, exercise spas, combination spas, and inflatable spas as 
defined in ANSI/APSP/ICC-14-2019. (ASAP et al., No. 7 at p. 1)
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    \9\ APSP-14 2019 defines ``self-contained spa'' as ``A factory-
built spa in which all control, water heating and water circulating 
equipment is an integral part of the product. Self-contained spas 
may be permanently wired or cord connected.''
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    The purpose of the proposed definition, which DOE is adopting in 
this final determination, is to identify the scope of the covered 
product (i.e., portable electric spas). In identifying whether a 
product is a consumer product for consideration as a covered product, 
DOE evaluates whether such product is of a type which in operation 
consumes, or is designed to consume, energy; and, to any significant 
extent, is distributed in commerce for personal use or consumption by 
individuals; without regard to whether such article of such type is in 
fact distributed in commerce for personal use or consumption by an 
individual. (42 U.S.C. 6291(1))
    The portable electric spa definition DOE is adopting in this final 
determination establishes the coverage of ``portable electric spas'' 
for the purpose of Part A of EPCA. The scope of coverage is separate 
from a determination of the applicability of test procedures or energy 
conservation standards, should DOE establish test procedures and energy 
conservation standards. The scope of any test procedure or energy 
conservation standards would be considered in these respective 
rulemakings to the extent DOE pursues such rulemakings. As such, in 
this final determination, DOE is classifying ``portable electric spas'' 
as a covered product and the definition establishes the scope of 
coverage for that purpose.
    In summary, based on the preceding discussion, DOE is defining 
``portable electric spa'' in 10 CFR 430.2 as a factory-built electric 
spa or hot tub, supplied with equipment for heating and circulating 
water at the time of sale or sold separately for subsequent attachment. 
This definition is consistent with the term as defined by ANSI/APSP/
ICC-14 2019 and the CEC. DOE notes that this definition--by using the 
term ``factory-built''--excludes units that are site-assembled, such as 
portable electric spas that are permanently installed in the ground or 
attached to a pool, and spas sold with methods of water heating other 
than electricity, such as propane or natural gas spa heaters or wood-
fired hot tubs.

B. Evaluation of Portable Electric Spas as a Covered Product Subject to 
Energy Conservation Standards

    The following sections describe DOE's evaluation of whether 
portable electric spas fulfill the criteria for being added as a 
covered product pursuant to 42 U.S.C. 6292(b)(1). As stated, DOE may 
classify a consumer product as a covered product if:
    (1) Classifying products of such type as covered products is 
necessary or appropriate to carry out the purposes of EPCA; and
    (2) The average annual per-household energy use by products of such 
type is likely to exceed 100 kWh (or its Btu equivalent) per year. (42 
U.S.C. 6292(b)(1))
1. Coverage Necessary or Appropriate To Carry Out Purposes of EPCA
    DOE has determined that coverage of portable electric spas is both 
necessary and appropriate to carry out the purposes of EPCA, which 
include:
    (1) To conserve energy supplies through energy conservation 
programs, and, where necessary, the regulation of certain energy uses; 
and
    (2) To provide for improved energy efficiency of motor vehicles, 
major appliances, and certain other consumer products. (42 U.S.C. 
6201(4) and (5))
    In the February 2022 NOPD, DOE cited data from the DOE Energy 
Information Administration's Residential Energy Consumption Survey 
(``RECS''), which indicated an installed base of 8.4 million spas in 
the U.S. in 2015.\10\ 87 FR 8745, 8747. DOE also obtained data from 
PKData and based on that data, DOE estimated that in 2019, the existing 
stock of residential hot tubs (as separate from the stock of spas in 
residential pools) was approximately 5.5 million, with approximately 95 
percent of these being electric spas.\11\ Id. Based

[[Page 54126]]

on these same data, DOE also estimated that approximately 230,000 
electric spas were shipped in 2019. Id. DOE requested data and 
information regarding current annual shipments of portable electric 
spas and the installed base of portable electric spas, specifying the 
scope of products included in any such estimates (e.g., standard, 
exercise, combination, inflatable, etc.). Id.
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    \10\ Available at www.eia.gov/consumption/residential/data/2015. 
DOE notes that this number likely includes spas that do not meet the 
proposed definition of portable electric spa.
    \11\ P.K. Data Inc. 2020 Pool Heaters Market Data: Custom 
Compilation for Lawrence Berkeley National Laboratory. 2020. 
Alpharetta, GA. (Last accessed July 1, 2021.) www.pkdata.com/reports-store.html#/.
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    PHTA/IHTA agreed with the existing data from RECS and PKData and 
stated that industry also relies on those data sources. (PHTA/IHTA, No. 
3 at p. 4)
    In the February 2022 NOPD, DOE noted that the CEC published a final 
staff report analyzing efficiency standards and marking for spas,\12\ 
which indicated that technologies exist, and are already available in 
the market, to reduce the energy consumption of portable electric spas. 
DOE requested comment on the availability of technologies for improving 
energy efficiency of portable electric spas. 87 FR 8745, 8747.
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    \12\ Final Staff Report, Analysis of Efficiency Standards and 
Marking for Spas, 2018 Appliance Efficiency Rulemaking for Spas 
Docket Number 18-AAER-02 TN 222413. Available online at 
efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.
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    PHTA/IHTA commented that the industry has been working on these 
technologies and improving them since 2008 and the technologies 
employed under the 2019 edition of ANSI/APSP/ICC-14 represent what is 
currently available and feasible. (PHTA/IHTA, No. 3 at p. 6) The CEC 
estimated potential technology options in the existing and future 
portable electric spa market. (CEC No. 4, at p. 5) And ASAP et al. 
noted that heat pump technology offers the potential to substantially 
reduce portable electric spa energy use. (ASAP et al., No. 7 at p. 2)
    Commenters also agreed generally that coverage of portable electric 
spas is necessary or appropriate to carry out the purposes of EPCA. 
PHTA/IHTA stated that classifying portable electric spas as a covered 
product is necessary and appropriate to carry out the purposes of EPCA. 
(PHTA/IHTA, No. 3 at pp. 1, 6) NYSERDA agreed with DOE's proposed 
determination that coverage is appropriate to carry out the purposes of 
EPCA. (NYSERDA, No. 6 at p. 2)
    DOE has determined that the coverage of portable electric spas is 
both necessary and appropriate to carry out the purposes of EPCA. As 
indicated by the shipments data, annual sales of portable electric spas 
are significant within the consumer products market. Portable electric 
spas consume energy generated from limited energy supplies and 
regulating their energy efficiency would likely help conserve these 
limited energy supplies. And as indicated by commenters and the CEC 
staff report, technologies exist for improving energy efficiency of 
portable electric spas.
    As a coverage determination is a prerequisite to establishing 
standards for these products, classifying portable electric spas as a 
covered product is necessary and appropriate to carry out EPCA's 
purposes to: conserve energy supplies through energy conservation 
programs, and provide for improved energy efficiency of major 
appliances and certain other consumer products. (42 U.S.C. 6201(4) and 
(5))
2. Average Household Energy Use
    In the February 2022 NOPD, DOE estimated the average household 
energy use for portable electric spas, in households that use the 
product, using power consumption data reported in the CEC database 
(``MAEDbS'').\13\ 87 FR 8745, 8747. MAEDbS is the only publicly 
available source that provides energy consumption data for portable 
electric spas of which DOE is aware. MAEDbS certification requires that 
standby power is measured according to ANSI/APSP/ICC-14 2019. For each 
model, MAEDbS lists the standby \14\ power in watts (``W''), along with 
other relevant capacity and performance metrics. For portable electric 
spas measured according to the test procedure in ANSI/APSP/ICC-14 2019, 
standby operation is the predominant mode of spa operation and includes 
power use to maintain the set temperature and to circulate and filter 
the water. The CEC estimated that standby operation represents 75 
percent of the energy consumed by a portable electric spa, with the 
remainder being startup mode, when the spa is heating up to its 
operating temperature, and active mode,\15\ when the spa's water jets 
are operating.\16\ Id. at 87 FR 8748. The CEC reported a duty cycle 
between 5,040 hours per year for inflatable spas (which are intended 
for seasonal use) and 8,760 hours per year for standard, exercise, and 
combination spas, during the process of updating the standards for 
California in 2018.\17\ Id.
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    \13\ CEC Modernized Appliance Efficiency Database System. 
Accessed December 17, 2021. Available online at 
cacertappliances.energy.ca.gov.
    \14\ DOE notes that use of the term ``standby'' and ``standby 
mode'' in ANSI/APSP/ICC-14 2019 differs from EPCA's definition of 
``standby mode.'' See 42 U.S.C. 6295(gg)(1)(A)(iii).
    \15\ DOE notes that use of the term ``active mode'' differs from 
EPCA's definition of ``active mode.'' See 42 U.S.C. 
6295(gg)(1)(A)(i).
    \16\ Final Staff Report, Analysis of Efficiency Standards and 
Marking for Spas, 2018 Appliance Efficiency Rulemaking for Spas 
Docket Number 18-AAER-02 TN 222413. Available online at 
efiling.energy.ca.gov/GetDocument.aspx?tn=222413&DocumentContentId=31256.
    \17\ Ibid.
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    Using average power consumption for a standard spa of 194 W (the 
lowest average of the categories in MAEDbS) and 8,760 hours per year of 
use, DOE estimated an average standby energy consumption of 1,699 kWh 
per year for portable electric spas in the February 2022 NOPD. Id. DOE 
noted that use of the minimum standby power found in MAEDbS (40 W) and 
the estimated 5,040 hours per year of use for inflatable spas exceeds 
200 kWh per year energy use. In addition, the rest of the country may 
have shipments of portable electric spas that exceed California's and 
other states' maximum power consumption standards. Id. at 87 FR 8749.
    In a presentation sent to DOE in December 2021,\18\ PHTA/IHTA, CA 
IOUs, and ASAP also provided an estimate of average energy use based on 
RECS. They estimated that portable electric spas consume 5.755 billion 
kWh/year in the U.S. and that 3.673 million households in the U.S. 
operate portable electric spas regularly. These estimates result in 
average energy consumption of 1,567 kWh per year per household, which 
is similar to DOE's estimate of 1,699 kWh per year.
---------------------------------------------------------------------------

    \18\ www.regulations.gov/document/EERE-2022-BT-DET-0006-0001.
---------------------------------------------------------------------------

    For these reasons, although there may be variation due to climate 
or spa size that might impact annual per-household energy use as 
compared to DOE's estimate of 1,699 kWh/year (either higher or lower), 
in the February 2022 NOPD, DOE tentatively determined that the average 
annual per-household energy use for portable electric spas is very 
likely to exceed 100 kWh per year, satisfying the provisions of 42 
U.S.C. 6292(b)(1). Id. DOE requested data and information on: (1) the 
national representativeness of the spa volume bins in Table IV.I of the 
February 2022 NOPD; (2) the range of standby power consumption of spas 
in non-regulated markets; (3) the standby power consumption at the 
different volumes for all types of portable electric spas; and (4) the 
active power consumption at the different volumes for all types of 
portable electric spas. Id.
    In response to the February 2022 NOPD, DOE received comments 
regarding the average household energy use of portable electric spas. 
PHTA/IHTA stated that Table IV.I in the February 2022 NOPD (which 
presented reported power consumption by spa category and volume) is an 
accurate

[[Page 54127]]

assessment of what is in the CEC database but noted the products in the 
CEC database represent standby power. PHTA/IHTA did not have specific 
data and information on the range of standby power consumption of spas 
in non-regulated markets or active power consumption at different 
volumes for all types of portable electric spas. But PHTA/IHTA agreed 
that it is extremely likely that the average annual per-household 
energy use by portable electric spas exceeds 100 kWh per year. (PHTA/
IHTA, No. 3 at pp. 5-6)
    ASAP et al. stated that DOE's estimate of average standby power 
consumption is likely a conservative estimate of energy use since it 
does not include power consumed in startup mode or active mode, and it 
also does not account for models sold in non-regulated markets that may 
not meet the CEC standards. (ASAP et al., No. 7 at p. 1) The CA IOUs 
noted that the analysis conducted by PHTA, CA IOUs, and ASAP,\19\ which 
indicated an average unit energy consumption of portable electric spas 
of 1,567 kWh/year, significantly exceeds the EPCA threshold of 100 kWh/
year required to designate a product as a covered product. (CA IOUs, 
No. 5 at p. 1) NYSERDA also agreed that the average annual household 
energy consumption is well above 100 kWh. (NYSERDA, No. 6 at p. 2)
---------------------------------------------------------------------------

    \19\ Ibid.
---------------------------------------------------------------------------

    As supported by the analysis presented in the February 2022 NOPD 
and the preceding comments, DOE makes a final determination that the 
average annual per-household energy use for portable electric spas is 
likely to exceed 100 kWh/year, satisfying the provisions of 42 U.S.C. 
6292(b)(1).

IV. Final Determination

    Based on the foregoing discussion, DOE concludes that including 
portable electric spas, as defined in this final determination, as 
covered products is necessary and appropriate to carry out the purposes 
of EPCA, and the average annual per-household energy use by products of 
such type is likely to exceed 100 kWh/yr. Based on the information 
discussed in section III of this document, DOE is classifying portable 
electric spas as a covered product.
    This final determination does not establish test procedures or 
energy conservation standards for portable electric spas. DOE will 
address test procedures and energy conservation standards through its 
normal rulemaking process, should DOE pursue such rulemakings.

V. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866 and 13563

    Executive Order (``E.O.'') 12866, ``Regulatory Planning and 
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving 
Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011), 
requires agencies, to the extent permitted by law, to: (1) propose or 
adopt a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); (2) tailor regulations to impose the least 
burden on society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent practicable, 
the costs of cumulative regulations; (3) select, in choosing among 
alternative regulatory approaches, those approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety, and other advantages; distributive impacts; and equity); 
(4) to the extent feasible, specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt; and (5) identify and assess available alternatives to 
direct regulation, including providing economic incentives to encourage 
the desired behavior, such as user fees or marketable permits, or 
providing information upon which choices can be made by the public. DOE 
emphasizes as well that E.O. 13563 requires agencies to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible. In its guidance, the 
Office of Information and Regulatory Affairs (``OIRA'') in the Office 
of Management and Budget (``OMB'') has emphasized that such techniques 
may include identifying changing future compliance costs that might 
result from technological innovation or anticipated behavioral changes. 
For the reasons stated in the preamble, this final regulatory action is 
consistent with these principles.
    Section 6(a) of E.O. 12866 also requires agencies to submit 
``significant regulatory actions'' to OIRA for review. OIRA has 
determined that this regulatory action does not constitute a 
``significant regulatory action'' under section 3(f) of E.O. 12866. 
Accordingly, this action was not submitted to OIRA for review under 
E.O. 12866.

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'') 
for any rule that by law must be proposed for public comment and a 
final regulatory flexibility analysis (``FRFA'') for any such rule that 
an agency adopts as a final rule, 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 (www.energy.gov/gc/office-general-counsel).
    DOE reviewed this determination under the provisions of the 
Regulatory Flexibility Act and the policies and procedures published on 
February 19, 2003. This determination sets no standards; it only 
positively determines that future standards may be warranted and should 
be explored in any future energy conservation standards and test 
procedure rulemakings. Economic impacts on small entities would be 
considered in the context of such rulemakings. On the basis of the 
foregoing, DOE certifies that the coverage determination would have no 
significant economic impact on a substantial number of small entities. 
Accordingly, DOE has not prepared a FRFA for this determination. DOE 
has transmitted this certification and supporting statement of factual 
basis to the Chief Counsel for Advocacy of the Small Business 
Administration for review under 5 U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act

    This determination, which concludes that portable electric spas 
meet the criteria for a covered product for which the Secretary may 
prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) 
and (p), imposes no new information or record-keeping requirements. 
Accordingly, the OMB clearance is not required under the Paperwork 
Reduction Act. (44 U.S.C. 3501 et seq.)

[[Page 54128]]

D. Review Under the National Environmental Policy Act of 1969

    Pursuant to the National Environmental Policy Act of 1969 
(``NEPA''), DOE has analyzed this final determination in accordance 
with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). 
DOE analyzed this regulation in accordance with the National 
Environmental Policy Act (``NEPA'') and DOE's NEPA implementing 
regulations (10 CFR part 1021). DOE has determined that this rule 
qualifies for categorical exclusion under 10 CFR part 1021, subpart D, 
appendix A6. This rulemaking qualifies for categorical exclusion A6 
because it is a strictly procedural rulemaking and otherwise meets the 
requirements for application of a categorical exclusion. See 10 CFR 
1021.410. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

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 determination and 
concludes 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 
product that is the subject of this determination. 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 E.O. 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 
E.O. 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 determination meets the relevant 
standards of E.O. 12988.

G. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA'') 
requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments, and the 
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). 
For a 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 requires a Federal agency to develop 
an effective process to permit timely input by elected officers of 
State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirement 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 
www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    DOE examined this determination according to UMRA and its statement 
of policy and determined that the determination does not contain a 
Federal intergovernmental mandate, nor is it expected to require 
expenditures of $100 million or more in any one year by State, local, 
and Tribal governments, in the aggregate, or by the private sector. As 
a result, the analytical requirements of UMRA do not apply.

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

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This determination 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 (Mar. 15, 
1988), DOE has determined that this determination 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 
of 2001

    Section 515 of the Treasury and General Government Appropriation 
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,

[[Page 54129]]

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 determination under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

K. Review Under Executive Order 13211

    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 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 E.O. 12866, 
or any successor Executive 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.
    This determination, which does not amend or establish energy 
conservation standards for portable electric spas, is not a significant 
regulatory action under E. O. 12866. Moreover, it would not 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.

L. Information Quality

    On December 16, 2004, OMB, in consultation with the Office of 
Science and Technology Policy (``OSTP''), issued its Final Information 
Quality Bulletin for Peer Review (``the Bulletin''). 70 FR 2664 (Jan. 
14, 2005). The Bulletin establishes that certain scientific information 
shall be peer reviewed by qualified specialists before it is 
disseminated by the Federal Government, including influential 
scientific information related to agency regulatory actions. The 
purpose of the bulletin is to enhance the quality and credibility of 
the Government's scientific information. Under the Bulletin, the energy 
conservation standards rulemaking analyses are ``influential scientific 
information,'' which the Bulletin defines as ``scientific information 
the agency reasonably can determine will have, or does have, a clear 
and substantial impact on important public policies or private sector 
decisions.'' Id. at 70 FR 2667.
    In response to OMB's Bulletin, DOE conducted formal peer reviews of 
the energy conservation standards development process and the analyses 
that are typically used and has prepared a Peer Review report 
pertaining to the energy conservation standards rulemaking 
analyses.\20\ Generation of this report involved a rigorous, formal, 
and documented evaluation using objective criteria and qualified and 
independent reviewers to make a judgment as to the technical/
scientific/business merit, the actual or anticipated results, and the 
productivity and management effectiveness of programs and/or projects. 
Because available data, models, and technological understanding have 
changed since 2007, DOE has engaged with the National Academy of 
Sciences to review DOE's analytical methodologies to ascertain whether 
modifications are needed to improve the Department's analyses. DOE is 
in the process of evaluating the resulting report.\21\
---------------------------------------------------------------------------

    \20\ ``Energy Conservation Standards Rulemaking Peer Review 
Report.'' 2007. Available at energy.gov/eere/buildings/downloads/energy-conservation-standards-rulemaking-peer-review-report-0.
    \21\ The report is available at www.nationalacademies.org/our-work/review-of-methods-for-setting-building-and-equipment-performance-standards.
---------------------------------------------------------------------------

M. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this final determination prior to its effective date. 
The report will state that it has been determined that the final 
determination is not a ``major rule'' as defined by 5 U.S.C. 804(2).

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
determination.

List of Subjects in 10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Intergovernmental relations, 
Reporting and recordkeeping requirements, Small businesses.

Signing Authority

    This document of the Department of Energy was signed on August 26, 
2022, by Dr. Geraldine L. Richmond, Undersecretary of Science and 
Innovation, 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 August 26, 2022.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons stated in the preamble, DOE amends part 430 of 
chapter II of title 10, 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. Section 430.2 is amended by:
0
a. Revising the definition of ``Covered product''; and
0
b. Adding in alphabetical order the definition of ``Portable electric 
spa''.
    The addition and revision read as follows:


Sec.  430.2   Definitions.

* * * * *
    Covered product means a consumer product--
    (1) Of a type specified in section 322 of the Act; or
    (2) That is an air cleaner, battery charger, ceiling fan, ceiling 
fan light kit, dehumidifier, external power supply, medium base compact 
fluorescent lamp, miscellaneous refrigeration product, portable air 
conditioner, portable electric spa, or torchiere.
* * * * *
    Portable electric spa means a factory-built electric spa or hot 
tub, supplied with equipment for heating and circulating water at the 
time of sale or sold separately for subsequent attachment.
* * * * *
[FR Doc. 2022-18862 Filed 9-1-22; 8:45 am]
BILLING CODE 6450-01-P