[Federal Register Volume 88, Number 54 (Tuesday, March 21, 2023)]
[Rules and Regulations]
[Pages 16869-16871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05587]



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 Rules and Regulations
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  Federal Register / Vol. 88, No. 54 / Tuesday, March 21, 2023 / Rules 
and Regulations  

[[Page 16869]]



DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2023-BT-PET-0003]


Energy Conservation Program for Consumer Products: Soft Lights 
Foundation; Petition for Repeal

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

ACTION: Final denial of petition for repeal.

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SUMMARY: This document announces and provides the reasoning for the 
U.S. Department of Energy's (``DOE's'') denial of a petition from the 
Soft Lights Foundation (``Soft Lights'') requesting the repeal of two 
final rules published by DOE on May 9, 2022: the final rule codifying 
the 45 lumens per watt backstop requirement for general service lamps 
that Congress prescribed in the Energy Policy and Conservation Act, as 
amended (``EPCA'') and the final rule adopting amended definitions of 
general service lamps (``GSLs'') and general service incandescent lamps 
(``GSILs'') and associated supplemental definitions.

DATES: This final denial of petition for repeal is applicable on March 
21, 2023.

ADDRESSES: 
    Docket: For access to the docket to read the petition, go to the 
Federal eRulemaking Portal at www.regulations.gov/#!docketDetail;D=EERE-2023-BT-PET-0003. In addition, electronic copies 
of the Petition are available online at DOE's energy conservation 
standards for general service lamps website at www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=4.

FOR FURTHER INFORMATION CONTACT: Mr. Bryan Berringer, 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) 586-5000. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Overview
    A. Authority and Background
    B. Soft Lights Petition
    C. Synopsis of the Final Denial of Petition for Repeal
II. DOE Analysis and Discussion
    A. May 2022 Definition Final Rule
    B. May 2022 Backstop Final Rule
    C. Adverse Health Effects of LEDs
III. Denial of Petition
IV. Approval of the Office of the Secretary

I. Overview

A. Authority and Background

    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. 6291(30)(BB))
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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.
---------------------------------------------------------------------------

    On May 9, 2022, DOE published a final rule adopting revised 
definitions of GSL and GSIL and associated supplemental definitions. 87 
FR 27461 (``May 2022 Definition Final Rule''). In the May 2022 
Definition Final Rule, pursuant to its authority in 42 U.S.C. 
6295(i)(6)(A)(i)(II), DOE removed from the definition of GSIL the 
exemptions for certain incandescent lamps that are used to satisfy 
lighting applications traditionally served by GSILs and included those 
lamps in the definition of GSIL and GSL. On that same day, DOE also 
published a final rule codifying the 45 lumens per watt (``lm/W'') 
statutory backstop requirement for GSLs pursuant to its authority in 42 
U.S.C. 6295(i)(6)(A)(v). 87 FR 27439 (``May 2022 Backstop Final 
Rule''). The statutory backstop requirement prohibits the sale of any 
GSL that does not meet a minimum efficacy standard of 45 lm/W. 10 CFR 
430.32(dd). In the May 2022 Backstop Final Rule, DOE determined the 
backstop requirement applies because DOE failed to complete a 
rulemaking for GSLs in accordance with certain statutory criteria in 42 
U.S.C. 6295(i)(6)(A). 87 FR 27439.

B. Soft Lights Petition

    The Administrative Procedure Act, 5 U.S.C. 551 et seq., provides, 
among other things, that ``[e]ach agency shall give an interested 
person the right to petition for the issuance, amendment, or repeal of 
a rule.'' (5 U.S.C. 553(e)) DOE received a petition from Soft Lights on 
December 24, 2022 requesting that, DOE repeal the May 2022 Definition 
Final Rule and the May 2022 Backstop Final Rule (hereafter referred to 
as the ``Soft Lights Petition''). In its petition, Soft Lights asserts 
that the purpose of a GSL is to provide safe, uniform illumination with 
light that disperses over distance following the inverse square law and 
that the May 2022 Backstop Final Rule sets a 45 lm/W minimum 
requirement for GSLs without setting quality metrics for the lamps. 
Further, Soft Lights contends that the May 2022 Definition Final Rule 
classifies light-emitting diodes (``LED'') lamps as a GSL even though 
LED lamps do not provide uniform illumination, do not emit light that 
disperses following the inverse square law, and are not regulated with 
regards to comfort, health or safety by the U.S. Food and Drug 
Administration (``FDA''). Soft Lights states in its petition that due 
to the failure of the May 2022 Backstop Final Rule and May 2022 
Definition Final Rule to ensure uniform illumination, inverse square 
law dispersion, and the protection of the public health and welfare, 
these two rules must be repealed. (Soft Lights Petition, No. 1 at pp. 
1-2) Further, Soft Lights argues that the term ``energy efficiency'' as 
defined by EPCA means providing the same quality of service using less 
energy and if a statute or rule fails to ensure this, it must be 
rejected as invalid. Soft Lights also contends that an energy 
efficiency statute that fails to consider the impacts on human health/
public health must be rejected as illegitimate. (Soft Lights Petition, 
No. 1 at pp. 3, 4)

C. Synopsis of the Final Denial of Petition for Repeal

    After carefully considering Soft Light's petition, DOE has 
determined

[[Page 16870]]

that granting Soft Light's request to withdraw the May 2022 Backstop 
and Definition Final Rules would be inconsistent with statutory law. In 
its petition, Soft Lights states that Congress was misinformed about 
the technical nature of LEDs and made the error of including LEDs in 
the definition of GSL in EPCA. (Soft Lights Petition, No. 1 at pp. 7-8) 
Soft Lights further asserts that the 45 lm/W backstop requirement is 
based on Congress's flawed understanding of how LEDs emit light and the 
invalid assignment of LEDs to the GSL classification. (Soft Lights 
Petition, No. 1 at p. 9) However, the inclusion of general service LED 
lamps as GSLs and the 45 lm/W backstop requirement for GSLs are 
prescribed by statute, and DOE does not have the authority to overturn 
statutory requirements enacted by Congress. (42 U.S.C. 6291(30)(BB); 42 
U.S.C. 6295(i)(6)(A)(v)) Further, DOE declines to comment on Soft 
Light's assertion that the FDA has failed to publish comfort, health or 
safety regulations for LEDs. These arguments are not for consideration 
by DOE. DOE is not aware of any prohibition on the use of LED lighting 
that would have impacted its rulemakings. DOE further discusses its 
reasons for denying the Soft Lights petition in the following 
discussion.

II. DOE Analysis and Discussion

A. May 2022 Definition Final Rule

    In its petition, Soft Lights asserts that the May 2022 Definition 
Final Rule incorrectly classifies LED lamps as GSLs. (Soft Lights 
Petition, No. 1 at pp. 1-2) It also asserts that, in the Energy 
Independence and Security Act of 2007 (Pub. L. 110-140) (``EISA''), 
Congress made the error of including the term ``general service light-
emitting diode'' in the statute without defining the device itself, and 
then further erred by classifying the device as a GSL. Specifically, 
Soft Lights states that both DOE and Congress are under the mistaken 
belief that LEDs emit uniform luminance and visible radiation that 
disperses following an inverse square law and are a replacement for an 
incandescent lamp. Soft Lights further contends that, due to this 
mistaken belief, DOE has gone back and forth on its understanding of 
what can be classified as a general service lamp in its rulemakings to 
revise the GSL and GSIL definitions. (Soft Lights Petition, No. 1 at 
pp. 7-8, 11,12)
    Contrary to Soft Lights assertion, DOE's withdrawal rulemakings 
regarding the definition of GSL were not due to DOE's misunderstanding 
of whether an LED can be classified as a GSL. Rather, DOE's change in 
position related to its interpretation of whether it could include 
categories of lamps in the definition of GSL that would otherwise be 
excluded under 42 U.S.C. 6291(30)(BB)(ii). Amendments to EPCA in EISA 
directed DOE to conduct two rulemaking cycles to evaluate energy 
conservation standards for GSLs, and, among other things, determine 
whether the exemptions for certain incandescent lamps should be 
maintained or discontinued. (42 U.S.C. 6295(i)(6)(A)-(B)) Pursuant to 
this authority, DOE conducted a rulemaking to establish revised 
regulatory definitions for GSLs and GSILs. See 82 FR 7276 (Jan. 19, 
2017); 82 FR 7322 (Jan. 19, 2017). Subsequently, DOE conducted a 
rulemaking in which it withdrew these revised definitions before they 
took effect. 84 FR 46661 (Sept. 5, 2019, ``September 2019 Withdrawal 
Rule''). Upon further review and consideration, DOE adopted the revised 
definitions of GSL and GSIL in the May 2022 Definition Final Rule. In 
that final rule, DOE explained that EPCA directs DOE to amend the 
statutory definitions of GSL and GSIL by regulation to achieve the 
energy savings for general lighting that Congress intended in EPCA 
generally and EISA specifically. (42 U.S.C. 6295(i)(6)(A)(i)(II) and 42 
U.S.C. 6291(30)(BB)(i)(IV); 87 FR 27461, 27466) By withdrawing the 
expanded definitions of GSL and GSIL in the September 2019 Withdrawal 
Rule, DOE failed to give meaningful effect to this statutory direction. 
87 FR 27461, 27466. Therefore, DOE's withdrawal rulemakings regarding 
the definition of GSLs were based on a misreading of EPCA's statutory 
direction and not a question of whether an LED lamp should be 
classified as a GSL.
    In fact, the amendments DOE adopted in the May 2022 Definition 
Final Rule do not classify general service LED lamps as GSLs. Rather, 
Congress classified LEDs as GSLs previously through EISA, which amended 
EPCA to define the term ``general service lamp'' and specified it to 
include ``general service light-emitting diode (LED or OLED) lamps.'' 
(42 U.S.C. 6291(30)(BB), Title III, Subtitle B, Section 321 of EISA) A 
final rule technical amendment published on March 23, 2009, 
incorporated into DOE's regulations EPCA's definition of ``general 
service lamp,'' providing that it includes general service incandescent 
lamps, compact fluorescent lamps, general service light-emitting diode 
lamps, organic light-emitting diode lamps, and any other lamps that the 
Secretary determines are used to satisfy lighting applications 
traditionally served by general service incandescent lamps; however, 
the definition didn't apply to any lighting application or bulb shape 
excluded from the ``general service incandescent lamp'' definition, or 
any general service fluorescent lamp or incandescent reflector lamp. 74 
FR 12058, 12065.
    The amendments adopted in the May 2022 Definition Final Rule made 
no changes to the statutory inclusion of general service light-emitting 
diode lamps and organic light-emitting diode lamps as GSLs and the 
repeal of this rule would not remove the statutory inclusion of LED 
lamps as a type of GSL. 87 27461, 27480-27481; 10 CFR 430.2. Further, 
the language in EPCA is clear that Congress intended general service 
light-emitting diode (LED or OLED) lamps to be included in the 
definition of ``general service lamp.'' (42 U.S.C. 6291(30)(BB)(i))

B. May 2022 Backstop Final Rule

    Soft Lights asserts in its petition that DOE went back and forth on 
its decision on whether the 45 lm/W backstop requirement was triggered 
because of Congress' flawed understanding of how LEDs emit light and 
Congress' error in including the term ``general service light emitting 
diode'' as a GSL. (Soft Lights Petition, No. 1 at p. 11) Further, Soft 
Lights contends that there is no technology that meets Congress' 
criteria of a GSL that provides the same quality of service as an 
incandescent with 45 lm/W efficacy and therefore, DOE is not obligated 
to, nor can it implement the 45 lm/W backstop requirement. (Soft Lights 
Petition, No. 1 at p. 9) Specifically, Soft Lights argues that LED 
technology does not meet the necessary criteria, stating that LEDs emit 
a non-uniform luminance and have blue wavelength and flicker that are 
harmful to human health. (Soft Lights Petition, No. 1 at pp. 16-24) 
Soft Lights contends that to set energy efficiency standards DOE must 
include light quality metrics paired with luminous efficacy, citing 
uniform illumination, inverse square law dispersion, a smooth 
continuous spectral distribution from low blue to high red, and analog 
flicker characteristics. (Soft Lights Petition, No. 1 at p. 16) Soft 
Lights also argues that the 45 lm/W backstop requirement will force 
manufacturers to produce LED lamps, even though the FDA has not stated 
LED visible radiation is safe and has not published comfort, health, or 
safety regulations for LED products. (Soft Lights Petition, No. 1 at p. 
3)
    EPCA directs DOE to conduct two rulemaking cycles to evaluate 
energy conservation standards for GSLs. (42

[[Page 16871]]

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 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 GSILs 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)) As a result of DOE's failure to complete a 
rulemaking in accordance with the statutory criteria in 42 U.S.C. 
6295(i)(6)(A), DOE codified the backstop requirement in the May 2022 
Backstop Final Rule. (87 FR 27439, 27442-27443)
    As explained in the May 2022 Backstop Final Rule, DOE was delayed 
in certifying the backstop requirement for GSLs by two years due to its 
evolving position under the first cycle of GSL rulemaking under 42 
U.S.C. 6295(i)(6)(A). This related to DOE's changing interpretation of 
whether the statutory backstop had been triggered and, contrary to Soft 
Lights assertion, had no bearing on whether LEDs were properly 
classified as GSLs under EPCA. As previously stated, the inclusion of 
LEDs in the definition of GSL is a clear statutory requirement that is 
not subject to agency discretion. Further, the 45 lm/W backstop 
requirement is not technology specific, and DOE is not banning 
incandescent technology. Thus, while Soft Lights is correct that there 
are currently no GSILS on the market that can meet the 45 lm/W 
requirement, this does not foreclose an incandescent from being 
invented, and sold, in the future that could meet the 45 lm/W 
requirement. Lastly, even if the 45 lm/W backstop had not been 
triggered, the rulemaking that DOE was required to undertake in 42 
U.S.C. 6295(i)(6)(A)(i) was to consider standards for GSLs. Congress 
had already defined GSLs in EPCA as including LEDs and directed that 
the rulemaking ``shall not be limited to incandescent lamp 
technologies.'' (42 U.S.C. 6295(i)(6)(A)(ii)(I)) Thus, DOE had existing 
statutory authority, aside from the backstop requirement, to establish 
energy conservation standards for GSLs, which, by statute, include 
LEDs.

C. Adverse Health Effects of LEDs

    In its petition, Soft Lights asserts that DOE's review of the 
health effects of LED lamps was inadequate and negligent. Further, Soft 
Lights contends that the FDA has sole authority to regulate visible 
radiation from electronic products and DOE was negligent in mandating 
the 45 lm/W backstop requirement for GSLs without ensuring that the FDA 
publishes comfort, health, and safety regulations for LED products. 
(Soft Lights Petition, No. 1 at p. 2-3, 13, 28) Soft Lights contends 
that LED lamps pose a danger to public health and LED visible radiation 
causes serious adverse health effects and creates discriminatory 
barriers. (Soft Lights Petition, No. 1 at p. 41)
    DOE notes that the FDA has authority to regulate certain aspects of 
LED products as radiation-emitting devices and has issued performance 
standards for certain types of light-emitting products.\3\ Currently, 
there is no FDA performance standard for LED products in part 1040. DOE 
acknowledges that Soft Lights expresses in its petition health concerns 
that Soft Lights associates with LEDs. However, such concerns are not 
for the consideration of DOE. DOE is not currently aware, nor was it at 
the time the May 2022 Definition and Backstop Final Rules were issued, 
of any prohibition on the use of LED lighting that would have impacted 
its rulemaking.
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    \3\ See, the Federal Food, Drug and Cosmetic Act section 531 et 
seq.; 21 U.S.C. 360KK; and 21 CFR part 1040.
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III. Denial of Petition

    Taking into account all of the factors discussed previously and 
consistent with the requirements under EPCA, DOE is hereby denying Soft 
Light's petition for rulemaking.

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
denial of petition for repeal.

Signing Authority

    This document of the Department of Energy was signed on March 14, 
2023, by Francisco Alejandro Moreno, Acting 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 March 15, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2023-05587 Filed 3-20-23; 8:45 am]
BILLING CODE 6450-01-P