[Federal Register Volume 89, Number 65 (Wednesday, April 3, 2024)]
[Rules and Regulations]
[Pages 22914-22925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06690]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[EERE-2020-BT-STD-0015]
RIN 1904-AE87


Energy Conservation Program: Clarifying Amendments to the Error 
Correction Rule

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

ACTION: Final rule.

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SUMMARY: The Department of Energy (``DOE'' or ``the Department'') is 
amending its procedures for providing public input on possible 
corrections of errors contained in the regulatory text of energy 
conservation standard final rules. In this final rule, DOE modifies 
certain aspects of these procedures to clarify and reflect the 
Department's intent regarding the error correction process that it 
previously created. The procedures as amended in this final rule do not 
in any way restrict, limit, diminish, or eliminate the Secretary's 
discretion to determine whether to establish or amend an energy 
conservation standard, or to determine the appropriate level at which 
to amend or establish any energy conservation standard.

DATES: The effective date of this rule is April 3, 2024.

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, some 
documents listed in the index, such as those containing information 
that is exempt from public disclosure, may not be publicly available. 
The docket web page can be found at www.regulations.gov/docket?D=EERE-2020-BT-STD-0015. The docket web page explains how to access all 
documents, including public comments, in the docket.

FOR FURTHER INFORMATION CONTACT: 
    Mr. Lucas Adin, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Building Technologies Program, EE-5B, 
1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: 
(202) 287-5904 or [email protected].
    Ms. Melanie Lampton, U.S. Department of Energy, Office of the 
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 
20585-0121. Telephone: (240) 751-5157. Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Summary of Final Rule
II. General Discussion
    A. General Comments
    B. Comments Concerning EPCA's Anti-Backsliding Provision
    C. Other Comments

[[Page 22915]]

    D. Section-by-Section Analysis of Comments
III. Procedural Issues and Regulatory Review
    A. Administrative Procedure Act
    B. Review Under Executive Orders 12866, 13563, and 14094
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act of 1969
    F. Review Under Executive Order 13132
    G. Review Under Executive Order 12988
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under the Treasury and General Government 
Appropriations Act, 1999
    J. Review Under Executive Order 12630
    K. Review Under the Treasury and General Government 
Appropriations Act, 2001
    L. Review Under Executive Order 13211
    M. Congressional Notification
IV. Approval of Office of the Secretary

I. Summary of Final Rule

    This procedural rule amends DOE's procedures for providing the 
public with an opportunity to request the correction of a possible 
error identified in the regulatory text of a final rule that would 
establish new or amended energy conservation standards prior to the 
rule's publication in the Federal Register.\1\ See 10 CFR 430.5. On 
October 9, 2020, DOE issued a notice of proposed rulemaking (``NOPR''), 
proposing various amendments to 10 CFR 430.5.\2\ 85 FR 64071. This 
final rule adopts some of the NOPR proposals. Specifically, the 
amendments contained within this final rule clarify that the Secretary 
was not, and is not, under a mandatory duty to post final energy 
conservation standard rules online for error-correction purposes, but 
to do so was, and is, a discretionary and voluntary act.
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    \1\ DOE typically posts pre-publication versions energy 
conservation test procedures and standards rulemaking documents on a 
publicly accessible website. However, the posting of those 
rulemaking documents is separate from the error correction process 
outlined in 10 CFR 430.5.
    \2\ Although DOE took notice and comment on the NOPR, agency 
rules of procedure and practice, such as the one described in this 
document, are not subject to the requirement to provide prior notice 
and an opportunity for public comment pursuant to authority at 5 
U.S.C. 553(b)(A). See section III of this document for additional 
discussion.
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    When DOE elects to post online an energy conservation standard 
final rule prior to its submission and publication in the Federal 
Register--or what is referred to as the pre-publication final rule for 
the purposes of this final rule discussion--DOE shall follow the 
procedures set forth in the error correction process found in 10 CFR 
430.5. Additionally, this final rule amends language in 10 CFR 430.5 to 
clarify that, if DOE posts a rule for error-correction purposes, DOE 
will continue to strive to provide a 45-day review period for error 
correction, but it is within DOE's discretion to provide a shorter or 
longer period.
    As for other amendments proposed in the NOPR, DOE is retaining 
certain of the current regulatory requirements in 10 CFR 430.5. 
Specifically, DOE is retaining the current definitions, as well as the 
requirement for DOE to submit for publication in the Federal Register a 
pre-publication final rule that has been posted in accordance with the 
error correction process. See 10 CFR 430.5(b) and (f). DOE is also 
retaining the language in 10 CFR 430.5(a), except to clarify that the 
error correction process is an optional and voluntary process. 
Furthermore, DOE is retaining the current requirements in 10 CFR 
430.5(g) and (h).
    The adopted amendments are summarized in Table I.1 and compared to 
the proposed amendments, as well as the requirements prior to the 
amendments.

                                  Table I.1--List of Revisions in This Document
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                                                             Proposed revisions from the
              Section               Current DOE requirement       October 2020 NOPR        Amended requirements
----------------------------------------------------------------------------------------------------------------
Sec.   430.5(a) Scope and purpose.  Describes the            Rename section and separate  Retain current
                                     procedures through       into two subsections; and    regulatory language
                                     which DOE will           clarify there is no          found in Sec.
                                     consider submissions     affirmative obligation on    430.5(a), except for
                                     regarding potential      the Secretary to provide     adding ``optional''
                                     Errors for those         the public with an           before ``procedure''
                                     rulemakings              opportunity for error        and ``may'' before
                                     establishing or          correction review.           ``accept and
                                     amending energy                                       consider'' to clarify
                                     conservation standards                                the error correction
                                     under EPCA.                                           process is a
                                                                                           procedure that may be
                                                                                           voluntarily
                                                                                           implemented by the
                                                                                           Secretary.
Sec.   430.5(b) Definitions.......  Defines ``Act,''         Revise definition of         Retain current
                                     ``Error,'' ``Rule,''     ``Error'' and replace the    definitions found in
                                     and ``Secretary''.       term ``Rule'' with the       Sec.   430.5(b).
                                                              term ``Pre-publication
                                                              draft''.
Sec.   430.5(c) Posting of rules..  Describes the beginning  Revise section title;        Adopt the proposal to
                                     of the error             clarify that the posting     clarify that the
                                     correction process.      of a pre-publication final   posting of a pre-
                                                              rule for error correction    publication final
                                                              review is within the         rule for error
                                                              Secretary's discretion and   correction review is
                                                              if posted, it would be       within the
                                                              available for a period of    Secretary's
                                                              45 days, but the review      discretion in Sec.
                                                              period may be shortened or   430.5(c)(1) and if
                                                              lengthened at the            posted, it would be
                                                              Secretary's discretion;      available for a
                                                              remove any implication       period of 45 days,
                                                              that the Secretary will      but the review period
                                                              publish a rule that has      may be shortened or
                                                              undergone error correction   lengthened at the
                                                              review; and revise the       Secretary's
                                                              disclaimer notice language   discretion in Sec.
                                                              to be consistent with        430.5(c)(2). Retain
                                                              other proposed amendments.   current disclaimer
                                                                                           notice text in Sec.
                                                                                           430.5(c)(3).
Sec.   430.5(d) Request for         Explains how to submit   Update to include the term   Adopt proposed
 Correction.                         a request to DOE to      ``Pre-publication draft;''   amendments to Sec.
                                     correct an Error and     clarify that the Secretary   430.5(d), with the
                                     describes what a         is not obligated to take     exception of
                                     request must contain.    action on an error           replacing ``pre-
                                                              correction request; and      publication draft''
                                                              clarify that the ECR would   with ``rule.''
                                                              be limited to identifying
                                                              Errors in the regulatory
                                                              text of a pre-publication
                                                              final rule.
Sec.   430.5(e) Correction of       Describes the courses    Revise to impose no          Retain current
 rules.                              of action DOE may        requirement for              regulatory language
                                     undertake if it          publication in the Federal   in Sec.   430.5(e).
                                     believes an identified   Register upon completion
                                     error needs to be        of the error correction
                                     corrected.               process and to clarify
                                                              DOE's authority to
                                                              determine the appropriate
                                                              remedy for an identified
                                                              error.
Sec.   430.5(f) Publication in the  Describes how DOE will   Revise to prevent the        Retain current
 Federal Register.                   eventually publish a     inference that publication   regulatory language
                                     final rule in the        in the Federal Register is   in Sec.   430.5(f),
                                     Federal Register.        the only outcome available   with the exception of
                                                              at the conclusion of the     two clarifying
                                                              error correction process.    amendments and two
                                                                                           minor non-substantive
                                                                                           edits.
Sec.   430.5(g) Alteration of       Explains that DOE may    Remove as unnecessary in     Retain current
 standards.                          change a standard that   light of amendments          regulatory language
                                     has been posted but      proposed for the remaining   in Sec.   430.5(g).
                                     not yet published in     sections of 10 CFR 430.5.
                                     the Federal Register.

[[Page 22916]]

 
Sec.   430.5(h) Judicial review...  Explains the timing      Renumbered to Sec.           Retain current
                                     related to a potential   430.5(g) and included new    regulatory language
                                     petition for review      text to reaffirm that pre-   in Sec.   430.5(h).
                                     that may be filed        publication final rules
                                     pursuant to 42 U.S.C.    are not final rules or
                                     6306.                    prescribed rules within
                                                              the meaning of EPCA.
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    While this final rule contains amendments to the error correction 
process--the process will be applied to identify errors in pre-
publication final rules that might be difficult to remedy due to EPCA's 
anti-backsliding provision (42 U.S.C. 6295(o)(1))--these modifications 
do not impair DOE's ability to meet its statutorily prescribed 
deadlines for either establishing or amending energy conservation 
standards. Instead, these modifications focus solely on DOE's intent to 
allow the public to identify possible technical and objective errors in 
certain pre-publication final rules. DOE will use the error correction 
process only to seek input on the narrow question of whether an error 
has occurred in the regulatory text of a pre-publication final rule 
document.
    The remainder of this final rule discusses comments received in 
response to the NOPR, as well as DOE's responses and the amendments 
adopted in this final rule.

II. General Discussion

    The NOPR included a summary detailing how DOE intended to amend 
specific sections of the ECR to better align with the rule's intended 
purpose. DOE received seven comments in response to the NOPR (see Table 
II.1) voicing various levels of support and opposition.

          Table II.1--List of Commenters With Written Submissions in Response to the NOPR, 85 FR 64071
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                                                                  Comment No. in
        Commenter(s)                     Abbreviation               the docket            Commenter type
----------------------------------------------------------------------------------------------------------------
A. O. Smith Corporation.....  A.O. Smith.......................                8  Manufacturer.
Air-Conditioning, Heating,    Joint Industry Commenters........                3  Manufacturers.
 and Refrigeration
 Institute, the Association
 of Home Appliance
 Manufacturers, and the
 National Electrical
 Manufacturers Association.
American Public Gas           APGA/Spire.......................                5  Utility Associations.
 Association and Spire Inc.
GE Appliances...............  GEA..............................                7  Manufacturer.
Joseph Richardson...........  Richardson.......................                2  Individual.
Lennox International Inc....  Lennox...........................                4  Manufacturer.
Natural Resources Defense     NRDC/ASAP........................                6  Energy Efficiency Advocates.
 Council and Appliance
 Standards Awareness Project.
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    A parenthetical reference at the end of a comment quotation or 
paraphrase provides the location of the item in the public record.\3\
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    \3\ The parenthetical reference provides a reference for 
information located in the docket of DOE's rulemaking for amending 
the error correction process. (Docket No. EERE-2017-BT-STD-0015, 
which is maintained at www.regulations.gov/#!docketDetail;D=EERE-
2017-BT-STD-0015). The references are arranged as follows: 
(commenter name, comment docket ID number, page of that document).
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A. General Comments

    Commenters generally expressed support of DOE's proposal to clarify 
the application of the error correction process, but they also harbored 
reservations regarding certain aspects of DOE's proposals. For example, 
APGA/Spire supported the Department's proposed amendments to clarify 
that the rule does not establish a non-discretionary duty to publish 
pre-publication final rules in the Federal Register after undergoing 
error correction review. (APGA/Spire, No. 05, at p. 2) However, those 
commenters disagreed with the proposal's attempt to clarify the extent 
of DOE's discretion with respect to the posting of documents for 
review. (APGA/Spire, No. 05, at p. 2) Similarly, the Joint Industry 
Commenters, while supportive of DOE's efforts to better reflect the 
Department's intent behind the rule, noted their collective concerns 
that the proposal would curtail DOE's ability to cure errors and limit 
public certainty regarding the error correction process. (Joint 
Industry Commenters, No. 03, at p. 1) These commenters stated that the 
ECR does not impose non-discretionary mandates superseding DOE's 
inherent discretion to make policy determinations but, in their view, 
the ECR is separate from DOE's policy discretion and the proposal's 
attempt at clarifying its discretion instead created uncertainty. 
(Joint Industry Commenters, No. 03, at pp. 1-2)
    Lennox agreed with the NOPR's proposed amendment to clarify that 
the ECR does not create a nondiscretionary duty to publish pre-
publication final rules at the end of the review process. (Lennox, No. 
4 at p. 5 (referencing 85 FR 64072)) But Lennox asserted that the 
entire error correction process should not be made voluntary. (Lennox, 
No. 4 at p. 5) GEA supported the comments submitted by the Joint 
Industry Commenters and added that a rule containing an error making a 
material difference to that rule should be corrected and that having a 
consistent, transparent, and predictable error correction process would 
benefit all parties. (GEA, No. 7 at p. 2)
    A.O. Smith supported the idea of narrowly tailoring the error 
correction process to correct clerical errors without reopening 
portions of the rulemaking process, but it expressed it opposition to 
the proposed amendments contained within the NOPR and questioned the 
legality of the rulemaking in light of the Ninth Circuit's opinion.\4\ 
(A.O. Smith, No. 08 at p. 1)
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    \4\ See Natural Resources Defense Council v. Perry,940 F.3d 1072 
(9th Cir. 2019).
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    Separately, one individual commenter supported the rule in its 
entirety and explained that the proposal offered a good way for the 
Department to ``remain as transparent as possible with the public'' and 
maintain a relationship that allowed for public involvement in the 
rulemaking process. This commenter supported the existence of a method 
to correct and amend documents to more

[[Page 22917]]

accurately report data relevant to DOE activities and projects. 
(Richardson, No. 02 at p. 1)
    In the NOPR, DOE clarified that the Secretary was not, and is not, 
under a mandatory duty to post pre-publication final rules online, but 
to do so was, and is, a discretionary and voluntary act. DOE is not 
compelled by statute to offer such a procedural step. Therefore, DOE 
proposed amending 10 CFR 430.5(c) to account for the Secretary's 
discretion to post energy conservation standard final rules for error 
correction review. 85 FR 64071, 64073. As discussed further in the 
Section-by-Section Analysis, DOE is adopting this proposal to amend 10 
CFR 430.5(c) in this final rule.
    Furthermore, DOE initially proposed to clarify that the ECR does 
not create a non-discretionary duty to publish in the Federal Register 
a pre-publication final rule that has been posted in accordance with 
the error correction process. 85 FR 64071, 64074. However, DOE has 
determined it will retain the language currently found in 10 CFR 
430.5(f). DOE notes that while the ECR provides a means by which 
interested parties may notify DOE of potential errors found in the 
regulatory text of a pre-publication final rule document that has been 
posted for public viewing, it is not a means for raising issues 
relating to the determinations and conclusions made by the Secretary in 
an energy conservation standard rulemaking. The posting of an energy 
conservation standards final rule signals the end of DOE's substantive 
analysis and decision-making regarding the applicable standards. 
Therefore, upon conclusion of the error correction process, DOE will 
submit a final rule, correcting any identified errors, to the Federal 
Register for publication in accordance with the requirements in 10 CFR 
430.5(f). DOE's decision not to amend 10 CFR 430.5(f) at this time also 
recognizes the narrow scope and purpose of the error correction 
process, which DOE notes is separate from the Department's policy-
making discretion.

B. Comments Concerning EPCA's Anti-Backsliding Provision

    Some commenters asserted that the NOPR mistakenly relied on EPCA's 
anti-backsliding provision, 42 U.S.C. 6295(o)(1), to justify the 
amendments proposed. The Joint Industry Commenters argued that DOE 
fundamentally misunderstands the anti-backsliding rule, which causes 
the premise behind the error correction process to be faulty. If there 
is an error in the analysis provided for an energy conservation 
standard, these commenters argue that the standard is not justified 
under EPCA's required economic and technical justifications. In their 
view, this would mean that the anti-backsliding provision cannot 
legally be used to maintain the standard. (Joint Industry Commenters, 
No. 03 at p. 6) They urged DOE to determine that it is authorized to 
correct errors in its analysis at any point if the errors lead to an 
energy conservation standard that is not justified under EPCA. While 
this would ultimately make the error correction process unnecessary, it 
would result, according to the commenters, in a better reading of 
EPCA--i.e., that the anti-backsliding provision does not limit DOE from 
correcting standards that were not actually justified in the first 
place. (Joint Industry Commenters, No. 03 at pp. 6-7) GEA also noted 
that EPCA's anti-backsliding provision does not prevent error 
correction and that any concern regarding a reduction in efficiency 
requirements through error correction is outweighed by the importance 
of maintaining the overall integrity of the energy conservation 
program. (GEA, No. 07 at p. 2)
    Under EPCA, DOE may not prescribe any amended standard that either 
(1) increases the maximum allowable energy use (or water use in the 
case of certain types of water products and equipment) or (2) decreases 
the minimum require energy efficiency of a covered product or covered 
equipment. (42 U.S.C. 6295(o)(1)) Although DOE agrees with commenters 
that retaining flexibility to correct any errors is important for 
integrity of the energy conservation program, industry commenters' 
reading of EPCA's anti-backsliding provision is inconsistent with 
Abraham's reading of that provision. See NRDC v. Abraham, 355 F.3d 179, 
196 (2d Cir. 2004) (noting that ``publication [of an energy 
conservation standard] must be read as the triggering event for the 
operation of section 325(o)(1).''). In light of Abraham, proceeding in 
the manner suggested by these commenters presents the risk that a 
reviewing court would invalidate an attempt by DOE to correct an error 
after publication of a final rule if the result of that correction was 
a standard with a greater maximum allowable energy use or decreased 
required energy efficiency as compared to the final rule that contained 
the error. Regardless of the reading that should be ascribed to the 
anti-backsliding provision, DOE concludes that the adoption of the ECR 
process (as revised by this rule) will be helpful in minimizing the 
risk that DOE may inadvertently adopt a final rule containing an 
objective error.
    Further, DOE's efforts to address errors as part of the ECR's 
process are necessarily limited to addressing errors that affect the 
amended standards' regulatory text prior to the publication of a final 
rule amending the energy conservation standards for a covered product 
or covered equipment. To the extent that an error appears outside of 
the posted regulatory text of a draft pre-publication document, such as 
in a supporting rulemaking document it authored (e.g., technical 
support document), DOE may, under its own discretion, make corrections 
to those documents, but these types of issues will be handled on an 
individual basis as appropriate outside of the ECR process.

C. Other Comments

    DOE also received comments on other topics. NRDC/ASAP noted that 
nothing in the proposal conferred to DOE the authority to delay a rule 
or impact a standard the Department must select other than by providing 
an opportunity for DOE to correct any inadvertent mistakes. They 
suggested DOE add language to the ECR to explicitly state that the rule 
does not disturb or modify any of DOE's statutory obligations. (NRDC/
ASAP, No. 06 at p. 1) They further suggested that DOE clarify in the 
final rule regarding the timeline and general procedures for error 
correction, including specifying when a rule would be made available 
for review, the duration of the review period, and whether the 
Department envisioned initiating a second error correction process for 
a pre-publication draft document. (NRDC/ASAP, No. 06 at p. 2)
    A.O. Smith claimed that the proposal would have significant impacts 
on manufacturers because it would allow for the rulemaking process to 
be ``reopened in perpetuity'' by not limiting the Secretary's 
authority, would allow for the introduction of new data, additional 
analyses, and would create the potential for a revised final decision 
to result if an error is identified. (A.O. Smith, No. 08 at p. 2) 
Alternatively, A.O. Smith supported the original 2016 ECR, which 
ensured any request ``must identify the claimed error, explain how the 
record demonstrates the regulatory text to be erroneous, and state what 
the corrected version should be.'' (A.O. Smith, No. 08 at p. 2)
    The ECR does not permit DOE to ignore EPCA's statutory deadlines or 
other applicable deadlines when finalizing a rulemaking action, and it 
is within DOE's authority to re-evaluate the document within the 
applicable deadline for that rulemaking. Nothing in the ECR authorizes 
DOE to circumvent

[[Page 22918]]

statutory or other applicable deadlines. Additionally, when an energy 
conservation standards final rule is posted for error correction 
review, its posting signals the end of DOE's substantive analysis and 
decision-making regarding the applicable standards, thus eliminating 
any concern that the rulemaking would be reopened in perpetuity. 
Accordingly, the ECR remains limited to identifying errors relating to 
the standards regulatory text in a pre-publication draft.

D. Section-by-Section Analysis of Comments

Section 430.5(a)
    In the NOPR, DOE proposed to amend 10 CFR 430.5(a) by renaming the 
section and separating the section into two separate subsections that 
address the purpose and scope of the regulations in this section. The 
proposed subsections described (1) the procedures through which the 
Department may accept and consider public input for review of a pre-
publication final rule document's regulatory text, and (2) the scope of 
the procedure that would be available. 85 FR 64071, 64072-64073.
    DOE received comments opposing its proposal to clarify that the 
error correction process was strictly a voluntary activity on the part 
of the Department and did not create a legal obligation to offer the 
public an additional review period for energy conservation standards 
beyond that which is already provided under EPCA and other applicable 
provisions of the Administrative Procedure Act.
    The Joint Industry Commenters disagreed with this aspect of the 
proposal. They argued that the ECR's review process should not be a 
discretionary activity and must provide stakeholders with a process to 
ensure no errors in the analysis exist before publishing a rule that 
would create an unjustified standard. (Joint Industry Commenters, No. 
03 at p. 2) APGA/Spire similarly suggested that DOE strike the word 
``voluntary'' from Sec.  430.5(a)(1) as proposed because there are no 
mandatory submissions for the public at large, making it redundant to 
characterize such submissions as ``voluntary.'' (APGA/Spire, No. 05 at 
p. 2) GEA asserted that the proposal lacked justification for leaving 
the implementation of the ECR review process solely to DOE's 
discretion. (GEA, No. 07 at p. 2) Lennox opposed characterizing the ECR 
review as voluntary because it would limit the rule and undermine the 
critical protections provided to industry and stakeholders from 
inaccurate rules being made final. (Lennox, No. 04 at p. 4, 1) In its 
view, the ECR should be mandatory for all energy conservation standards 
as it would help avoid litigation costs resulting from efforts to 
correct erroneous rules. Lennox added that requiring all energy 
conservation standard rulemakings to undergo the error correction 
process would enable DOE to avoid errors that would disrupt the supply 
chain and avoid the risk of consumers being harmed through mislabeled 
equipment. (Lennox, No. 04 at p. 2) In addition to there being a clear 
need for error correction review to ensure that all energy conservation 
standards are technologically feasible and economically justified under 
42 U.S.C. 6295(o)(2), Lennox argued that making the error correction 
process voluntary would destroy public confidence in that process. 
(Lennox, No. 04 at pp. 3-4)
    GEA challenged DOE's decision to limit the scope of the error 
correction process to final rules and argued DOE should determine that 
it is authorized to correct errors in its analysis at any time if the 
error would result in a standard not justified under EPCA. GEA 
suggested that DOE make the error correction process mandatory for all 
energy conservation standard rulemakings. In its view, doing so would 
provide consistency, transparency, and predictability to the rulemaking 
process, which decreases uncertainty and the regulatory burden. (GEA, 
No. 07 at p. 2)
    NRDC/ASAP supported DOE's proposal to make the review process 
discretionary and asserted that some circumstances may require waiving 
the normal process, making a shorter review period or no review period 
justified. They encouraged DOE to include in the final rule a 
clarification that some products may warrant shorter review periods. 
(NRDC/ASAP, No. 06 at 2)
    DOE's proposal also noted that it would continue to exclude energy 
conservation standards set through the issuance of a direct final rule 
pursuant to section 325(p)(4) of EPCA (42 U.S.C. 6295(p)(4)). 85 FR 
64071, 64073. The Joint Industry Commenters and Lennox supported this 
approach because, in their view, EPCA (through section 325(p)(4)) 
already provided the necessary opportunity for review and comment prior 
to the finalization of such rules. (Joint Industry Commenters, No. 03 
at p. 2; and Lennox, No. 04 at p. 4)
    EPCA mandates certain procedures that DOE must follow in its 
rulemakings. See 42 U.S.C. 6295(p). Beyond the procedures mandated in 
EPCA, the Secretary is under no statutory obligation to provide the 
public with an additional opportunity to submit error correction 
requests on any document. DOE has considered the approach of turning 
this process into a mandatory one for all energy conservation standard 
rulemakings, as suggested by these commenters, but notes that doing so 
would be both impractical and unnecessary. DOE notes that the public 
has many opportunities to review and provide input on EPCA rulemakings 
already during the robust rulemaking process as provided by EPCA and 
other applicable provisions of the Administrative Procedure Act. 
Additionally, DOE recognizes that situations may arise, such as 
complying with a judicial decree, that would necessitate shortening or 
waiving of the error correction process. DOE reminds commenters that 
opening an energy conservation standard rulemaking to error correction 
review is only to confirm that no errors exist in the regulatory text 
prior to anticipated publication; it is not intended for parties to 
argue the findings and conclusions of the rulemaking. The voluntary 
nature of the ECR provides the Secretary the flexibility to subject 
specific rulemakings to one last review and not unnecessarily elongate 
the rulemaking process for energy conservation standard rulemakings.
    DOE's proposal to amend 10 CFR 430.5(a) was intended to describe an 
error correction process that is an optional and voluntary, 
specifically on the part of DOE. However, given DOE's decision in this 
final rule to retain the current regulatory requirements found in 10 
CFR 430.5(f), which prescribe the steps DOE will take to publish a 
final rule upon conclusion of the error correction process, DOE no 
longer believes it is necessary at this time to extensively revise the 
text in 10 CFR 430.5(a), except to clarify DOE is under no legal 
obligation to offer the public this additional error correction process 
from the outset. Accordingly, DOE is retaining the current regulatory 
provisions contained in 10 CFR 430.5(a), with the exception of adding 
the term ``optional'' before ``procedure'' and ``may'' before ``accept 
and consider'' to clarify it is within the Secretary's discretion to 
allow for an error correction review of a final energy conservation 
standard rule.
Section 430.5(b)
    DOE proposed amending the definition of ``Error'' found in 10 CFR 
430.5(b) to more narrowly define it as meaning an objective mistake in 
the regulatory text of a pre-publication final rule document that may 
result in the

[[Page 22919]]

establishment or amendment of an energy conservation standard. DOE also 
proposed replacing the term ``Rule'' with the term ``Pre-publication 
draft.'' 85 FR 64071, 64077.
    The Joint Industry Commenters opposed narrowing the definition of 
``Error'' and argued that substantial errors can occur outside of the 
regulatory text and its erroneous results will not be explicit or 
disclosed in the regulatory text. They argued that the review should be 
extended to include errors that may exist in the Technical Support 
Document as well as the preamble to a final rule as these errors could 
also result in arbitrary and capricious standards. (Joint Industry 
Commenters, No. 03 at pp. 2-3)
    It is DOE's current practice to post a pre-publication copy of a 
rulemaking document online, prior to the rule's publication in the 
Federal Register, for the public to access. This action is separate and 
distinct from the error correction process. Given that DOE uses the 
term ``pre-publication'' when posting and disseminating these 
documents, DOE believes it may create potential confusion for DOE to 
adopt the proposed definition for ``pre-publication draft'' in this 
final rule. Additionally, the use of the term ``draft'' may also 
suggest that the final rule document is open to further deliberations 
and policy considerations. Accordingly, DOE is not adopting its 
proposal to amend 10 CFR 430.5(b), and is retaining the current 
definitions found in 10 CFR 430.5(b) in this final rule.
    However, DOE's decision to not amend 10 CFR 430.5(b) does not 
diminish the intent of the ECR, which is to minimize the potential risk 
of finalizing and publishing the regulatory text of an energy 
conservation standard with an apparent error that establishes a level 
that was not intended by DOE. With the utilization of the ECR, DOE is 
seeking to avoid the need for any subsequent rulemaking, correcting 
that error, that might violate the anti-backsliding provision of 42 
U.S.C. 6295(o)(1). Therefore, by addressing concerns with the draft 
regulatory text of an energy conservation standard before that text is 
finalized, DOE can significantly reduce the risk of litigation over an 
unintended error. This same difficulty does not exist for an error 
identified in the preamble text or Technical Support Document published 
in support of an energy conservation standard. For that, DOE can issue 
a correction to remedy such a mistake. And in the event an error 
appears in a Technical Support Document for a given rule, if DOE agrees 
that error impacts the resulting standard that DOE intended to adopt 
(as reflected in a posted draft document), then DOE retains the 
authority to make the appropriate correction in that posted draft 
document.
Section 430.5(c)
    The NOPR proposed revising 10 CFR 430.5(c) to clarify that the 
Secretary was not, and is not, under a mandatory duty to post pre-
publication final rules online for error correction review, but to do 
so was, and is, a discretionary and voluntary act. If the Secretary 
chooses to post a final rule online for error correction review, the 
document would be available for 45 days, but the Secretary in his or 
her discretion may shorten or lengthen that time period. DOE also 
proposed revising 10 CFR 430.5(c) to clarify that the ECR does not 
impose a deadline by which the Secretary must determine whether to 
establish or amend an energy conservation standard, or when the 
Secretary must submit a final rule for publication in the Federal 
Register. DOE further proposed revising the text in the disclaimer 
notice, which is posted along with a final rule made available for 
error correction review, to explain that the Department may conduct 
additional review of the regulatory test prior to finalizing a 
potential energy conservation standard to ensure that the text is 
consistent with the Secretary's intent and with data and analysis 
available at the time of posting. 85 FR 64071, 64073.
    APGA/Spire objected to this aspect of the proposal, arguing that 
every final rule should be posted routinely since DOE would have 
complete discretion on what to do with any comment received under 
paragraph (e). (APGA/Spire, No. 05 at p. 2) The Joint Industry 
Commenters objected to the proposal's failure to obligate DOE to post 
pre-publication draft final energy conservation standard rules. In 
their view, it is critical that the public be given the opportunity to 
review these types of documents for errors that could result in a 
standard that is not, in fact, technically or economically justified. 
(Joint Industry Commenters, No. 03 at p. 3) They added that the 
Secretary should not retain the discretion to determine whether to post 
pre-publication drafts because any rulemaking that may impact an energy 
conservation standard should be subject to error correction review. 
(Joint Industry Commenters, No. 03 at p. 4) These commenters also 
supported posting a pre-publication draft for the proposed continuation 
of the 45-day review period, but disagreed with the proposal's 
inclusion to provide the Secretary the discretion to adjust the length 
of the review period. They suggested there should be a set period of 
time that the rule is posted and the Secretary may extend that time 
period if needed, but that this time period cannot be limited to less 
than the 45-day window on a whim. (Joint Industry Commenters, No. 03 at 
p. 3)
    Lennox also objected to a shortening of the 45-day review period 
because energy conservation standard rulemakings are complex and that 
modifying the ECR to permit a shorter review period would ``gut'' the 
ECR process by allowing the Secretary to unilaterally provide 
inadequate time for a meaningful review. (Lennox, No. 04 at p. 4) Other 
commenters suggested that DOE include a firm minimum time limit for 
error correction requests to be considered, such as 30 days. (NRDC, et 
al., No. 06 at p. 1)
    Furthermore, Joint Industry Commenters and Lennox were supportive 
of DOE's proposal to retain discretion on whether a pre-publication 
draft that has undergone error correction review is submitted for 
publication as a final rule. (Joint Industry Commenters, No. 03 at p. 
4; Lennox, No. 04, at p. 1) The Joint Industry Commenters agreed with 
DOE's clarification to remove any inference of an implied timeline for 
the Secretary's decision to publish a potential rule that was subject 
to the error correction process and that the Secretary should retain 
discretion to determine the degree to which the document may or may not 
be amended. (Joint Industry Commenters, No. 03 at p. 4) These 
commenters agreed with DOE that the error correction process should not 
obligate the Secretary to publish a document simply because that 
document has completed the error correction process. They asserted that 
DOE has broad authority to execute its statutory obligations and that 
the ECR's scope is limited only to the opportunity for stakeholders to 
comment on errors and DOE's obligation to consider those comments. 
(Joint Industry Commenters, No. 03 at p. 4)
    The Joint Industry Commenters also supported DOE's proposed 
revision to the disclaimer in Sec.  430.5(c)(3) that DOE may conduct 
additional review of the regulatory text prior to finalizing a standard 
to ensure that the text itself is consistent with the Secretary's 
intent and relevant data and analysis available at the time of posting. 
They also supported DOE's proposed revision emphasizing that it is 
``within the 'Secretary's discretion to determine the appropriate 
remedy'' for an error identified during the error correction process. 
(Joint Industry Commenters, No. 03 at p. 4)

[[Page 22920]]

    As previously noted, EPCA already specifies the procedures DOE is 
mandated to follow in an energy conservation standard rulemaking. The 
error correction process is an extra step that DOE is choosing to adopt 
as a tool to help DOE avoid promulgating a final energy conservation 
standard rule with an apparent error. It is DOE's judgment that not all 
energy conservation standard rulemakings will need to undergo a 45-day 
review period. For example, there may be instances where an 
unanticipated legal obligation may arise, or a statutory deadline may 
be approaching, that may necessitate a modification to a 45-day review 
period. While DOE will continue to strive to provide a 45-day review 
period, retaining flexibility to account for case-by-case circumstances 
would enable DOE to continue offering the public this additional review 
opportunity while accounting for those circumstances where a 45-day 
review period is not warranted or feasible. Upon posting of a pre-
publication draft, the public will be notified of the length of the 
review period for that specific energy conservation standard final 
rule.
    Moreover, posting a pre-publication final rule for review under 
this process is an additional step in the already comprehensive review 
process the Department follows when developing a standard in accordance 
with EPCA's requirements. Providing this step--which itself is a 
discretionary act by DOE--offers the public with a final opportunity, 
not required under EPCA, to help DOE in verifying that no errors in the 
regulatory text went unnoticed and unaddressed. Although DOE 
anticipates that this step would be routinely provided, it may not be 
necessary to do so for every energy conservation standard rulemaking 
and requiring it in those instances where it would be unnecessary or 
impractical to do so would unnecessarily restrict DOE's flexibility to 
carry out its statutory obligations under EPCA or other legal 
obligations in an efficient manner. Rigidly applying a mandatory 
minimum review period requirement not only ignores the potential for 
conflicts with preexisting statutory deadlines but also assumes that 
all energy conservation standard rulemakings are the same. Not every 
energy conservation standard rulemaking will require this additional 
review period and to mandate one may unnecessarily lengthen the 
rulemaking process.
    With these considerations in mind, DOE is adopting its proposal to 
amend 10 CFR 430.5(c) to clarify that the Secretary was not, and is 
not, under a mandatory duty to post pre-publication final rules online 
for error correction review, but to do so was, and is, a discretionary 
and voluntary act. DOE is also adopting its proposal to amend 10 CFR 
430.5(c) to note that it will ordinarily post the pre-publication final 
rule online for a period of 45 calendar days, but noting that the 
period for review may be shortened or lengthened to best serve the 
needs of that rulemaking in accordance with DOE's statutory or other 
legal obligations.
    While DOE is adopting the aforementioned proposals in this final 
rule, DOE is not adopting the remaining revisions proposed in the NOPR 
for 10 CFR 430.5(c)(2). Those revisions concerned the submittal of 
rules for publication and DOE's authority to amend standards prior to 
publication. DOE's decision to not adopt those proposed revisions is 
due to repetitive nature of some of the language, as well as the 
decision to retain the current requirements in 10 CFR 430.5(f) and (g). 
Section 430.5(c) as adopted in this final rule already expresses that 
the Secretary is not obligated to post pre-publication final rules on a 
publicly accessible website for public review. Adopting the proposed 
revision that it would be in the Secretary's discretion both before and 
after posting of a pre-publication final rule to determine whether to 
establish or amend an energy conservation standard would conflict with 
DOE's decision to retain the current requirements in 10 CFR 430.5(f) 
and (g). Therefore, to maintain the current numbering in 10 CFR 
430.5(c), DOE has made slight clarifying amendments to revise and 
renumber the proposed regulatory text that DOE is adopting in this 
final rule.
    Furthermore, due to DOE's decision to retain the current 
definitions in 10 CFR 430.5(b), DOE is retaining the current disclaimer 
notice text found in 10 CFR 430.5(c)(3).
Section 430.5(d)
    In the NOPR, DOE explained how the public could submit a request 
for error correction, what errors will be reviewed, and identified the 
evidence the Department would accept in considering such a request 
under 10 CFR 430.5(d). Specifically, DOE proposed to clarify that the 
Secretary would not be obligated to take an action, and would have the 
discretion to choose whether to correct an error properly identified 
and determined to be consequential. The proposal also explained that 
the review would be limited to identifying Errors in the regulatory 
text and not be expanded to include issues related to the policy 
decision itself; policy decisions would continue to remain strictly 
within the discretion of the Secretary. 85 FR 64071, 64073.
    The Joint Industry Commenters opposed DOE's proposal for 10 CFR 
430.5(d) and argued that the Secretary lacks the discretion to not 
amend a consequential or inconsequential error properly identified. 
While the commenters agreed that it is within the Secretary's 
discretion in deciding not to act when an inconsequential error is 
identified, they asserted that in those instances where an error is 
uncorrected, DOE should explain its reasons for doing so. (Joint 
Industry Commenters, No. 03 at p. 4) When deciding not to act on a 
consequential error, the Joint Industry Commenters argued that the 
Secretary should explain why no action is being taken. (Joint Industry 
Commenters, No. 03 at pp. 4-5) The Joint Industry Commenters reiterated 
that DOE should not limit error review to the regulatory text and 
should consider addressing errors in the technical support document and 
the preamble if the error substantially affects the resulting standard 
in the regulatory text. (Joint Industry Commenters, No. 03 at p. 5) The 
Joint Industry Commenters also argue that the evidence used to 
substantiate the error should not be limited to the existing rulemaking 
record--any evidence that may substantiate an error should be 
permitted, including evidence that is not part of the existing record. 
(Joint Industry Commenters, No. 03 at p. 5)
    Determining whether a purported error in a pre-publication final 
rule is, actually, an error, and, if so, whether such error is 
consequential or inconsequential--along with the decision on how to 
handle that error--resides solely within the Secretary's discretion 
under 10 CFR 430.5(d)(1). The Secretary is also under no obligation to 
consider a request that does not comply with 10 CFR 430.5(d). As a 
practical matter, DOE likely would consider an inconsequential error as 
one not meriting a response, while a consequential error likely would 
be addressed in the form of a correction to the relevant regulatory 
text.
    While some commenters suggested that DOE accept evidence not 
previously included in the record, DOE again emphasizes that the error 
correction process is the final step immediately prior to when DOE 
submits a document to the Federal Register for publication. At this 
stage, all of the information pertaining to the substance of the 
rulemaking should have already been submitted to DOE for its 
consideration. If DOE were to permit the

[[Page 22921]]

submission of additional information at this late juncture for 
consideration, the risk of parties withholding valuable and useful 
information for DOE to consider until the error correction process 
would be considerably higher, resulting in a process that would 
adversely impact the rulemaking process by delaying finality to the 
rulemaking. Moreover, DOE wishes to ensure that parties provide as much 
information as possible during the relevant and appropriate stages of a 
given rulemaking--that is, during any pre-NOPR stages, which DOE 
typically offers, as well as in response to a designated comment period 
for a NOPR or supplemental NOPR. Commenters have these multiple 
opportunities to bring data or information to the Department's 
attention during the rulemaking process. Accordingly, DOE is declining 
to adopt the approach suggested by the commenters and will continue to 
restrict consideration of available data and evidence to information 
that is already part of the relevant rulemaking record.
Section 430.5(e)
    In the NOPR, DOE explained that this section would continue to 
describe the course of action that the Department may take in the event 
that a request for correction has appropriately identified an error. 
DOE proposed new text explaining the Secretary's authority to determine 
the appropriate remedy for an error identified and the Secretary's 
discretion to initiate additional review of the regulatory text so that 
it mirrors the Secretary's intent. 85 FR 64071, 64074
    In response to the NOPR, Joint Industry Commenters recommended that 
DOE respond to every error correction request submitted even if the 
Secretary decides not to act under 10 CFR 430.5(e). In their view, the 
requester should be notified that its request for review was received, 
considered, and provided a rationale for why the Department decided not 
to act upon the request. (Joint Industry Commenters, No. 03 at pp. 5-6)
    The Joint Industry Commenters further concurred with DOE's proposal 
to clarify that the ECR does not establish any obligation on the 
Secretary to publish a pre-publication draft document upon completion 
of the error correction process. Joint Industry Commenters acknowledged 
timing for publication remains within the Department's discretion, 
which are separate and apart from the error correction process. (Joint 
Industry Commenters, No. 03 at p. 5)
    In light of DOE's decision to not amend the regulatory requirements 
currently found in 10 CFR 430.5(f), as discussed in more detail below, 
DOE will be retaining the regulatory text currently found in Sec.  
430.5(e). In DOE's view, the ECR process is designed solely as an 
additional review period to address errors that may be contained in the 
regulatory text of a draft pre-publication document. In those cases 
where DOE agrees that a properly submitted error correction request 
identified an error in the posted text and that error requires 
correcting, DOE's response will come in the form of DOE's correction of 
that error. If DOE concludes that any request for error-correction is 
not valid, and if it has identified no errors on its own, DOE will 
proceed to submit the rule for publication in the Federal Register in 
the same form it was previously posted. By doing so, the Department 
will effectively be rejecting any error-correction requests it has 
received, and will ordinarily not respond directly to a requester or 
provide additional notice regarding the request.
    Compelling DOE to individually address each error correction 
request submitted in instances where no change is merited is not an 
appropriate use of DOE's limited resources. Moreover, in DOE's 
experience, many of the error correction requests that DOE receives are 
transmitted at the end of the error correction process and often do not 
identify what this rule defines as ``Errors.'' Therefore, at this time, 
DOE declines to implement any requirements that it affirmatively 
address every error correction request received. DOE will, however, 
docket all properly submitted error correction requests in the 
appropriate docket to ensure that the public is aware of any properly 
submitted requests that were received.
    DOE notes that commenters continue to remain free to submit input 
to the relevant docket throughout the duration of the rulemaking to 
help inform DOE regarding any aspects of that rulemaking.
Section 430.5(f)
    In the NOPR, DOE proposed revising 10 CFR 430.5(f) to prevent the 
inference that publication in Federal Register is the only outcome 
available at the conclusion of the error correction process. 85 FR 
64071, 64074. While some commenters asserted that the Secretary is not 
obligated to submit a pre-publication final rule for publication in the 
Federal Register at the end of the review process and that it remains 
within the Secretary's discretion to determine what happens once the 
review period concludes (see Joint Industry Commenters, No. 03 at p. 5-
6; Lennox, No. 04 at 5; NRDC/ASAP, No. 06 at p. 1), one commenter 
opposed DOE's proposal and questioned the legality of the rulemaking 
considering a decision from the United States Court of Appeals for the 
Ninth Circuit. Natural Resources Defense Council v. Perry, 940 F.3d 
1072 (9th Cir. 2019) (A.O. Smith, No. 8 at p. 1) Additionally, others 
argued that DOE is obligated to provide a publicly available statement 
detailing how any properly received requests were handled. (Lennox, No. 
04 at p. 4) Commenters stated that if DOE is unable to fix an error 
identified, then DOE must provide a consistent process to help ensure 
energy conservation standards are supported by error-free analysis that 
is justified under EPCA. (Joint Industry Commenters, No. 03 at p. 6)
    At this time, DOE is retaining the current regulatory text found in 
10 CFR 430.5(f), notwithstanding two clarifications and two minor non-
substantive changes to reflect updated cross-references to amended 10 
CFR 430.5(c). As explained in the NOPR, the Ninth Circuit held that 10 
CFR 430.5(f) created a non-discretionary duty to submit draft rules 
(i.e., a pre-publication draft) for publication in the Federal Register 
within 30 days of the close of the error correction submission period. 
Although DOE declines to adopt its proposal to amended 10 CFR 430.5(f) 
as discussed in the NOPR, DOE continues to maintain that the error 
correction process is intended to correct errors, as defined in 10 CFR 
430.5(b), and is separate from DOE's policy-making discretion.
    In this final rule, DOE provides two clarifying amendments to the 
current regulatory text found in 10 CFR 430.5(f). Specifically, DOE 
amends 10 CFR 430.5(f)(2) to remove the term ``in due course.'' The use 
of the term ``in due course'' in 10 CFR 430.5(f)(2) could imply that a 
final rule for which DOE does not receive any properly filed error 
correction requests and determines that no corrections are necessary, 
is subject to a different or longer time frame for submission for 
publication in the Federal Register than a final rule for which DOE has 
received one or more properly filed requests and determines that no 
corrections are necessary (see 10 CFR 430.5(f)(1). This is not the 
case. In either scenario, DOE expects that the rule will be submitted 
for publication in the Federal Register within the 30 days allotted for 
rules that actually require correction prior to submittal in 10 CFR 
430.5(f)(3). DOE also amends 10 CFR 430.5(f)(3) to add ``or discovers 
an Error on the Secretary's own initiative.'' This amendment addresses 
the scenario of when the Secretary discovers an Error

[[Page 22922]]

on his or her own initiative and determines a correction is necessary--
a scenario that had only been addressed in 10 CFR 430.5(e), but has not 
been explicitly included as a scenario in 10 CFR 430.5(f).
    DOE will continue to consider the impact of the Ninth Circuit 
decision on 10 CFR 430.5(f), as well as any impact a proposed change to 
Sec.  430.5(f) would have on stakeholders in providing certainty and 
transparency during the error correction process. Should DOE desire to 
amend the language in paragraph (f) of this section, DOE will consider 
and follow the appropriate rulemaking procedures for making such 
amendments. The decision to maintain the current language in Sec.  
430.5(f) does not in any way restrict, limit, diminish, or eliminate 
the Secretary's discretion to determine whether to establish or amend 
an energy conservation standard, or to determine the appropriate level 
at which to amend or establish any energy conservation standard.
Section 430.5(g) and (h)
    DOE proposed renumbering 10 CFR 430.5(g) and (h) and including new 
text to reaffirm that a pre-publication document is not a final rule 
within the meaning of EPCA. 85 FR 64071, 64073. DOE received comments 
supporting its proposed modification to 10 CFR 430.5(g). The Joint 
Industry Commenters supported the reaffirmation that the publication of 
such drafts did not finalize the substance of the rule or signal an end 
to the rulemaking process. (Joint Industry Commenters, No. 03 at p. 6)
    While DOE acknowledges the comments it received in support of this 
proposal, DOE has decided to retain the current regulations at 10 CFR 
430.5(g) and (h). Since DOE's proposal for 10 CFR 430.5(g) was simply 
intended to reorganize and reaffirm the language currently found in 10 
CFR 430.5(g) and (h), DOE believes retaining the current requirements 
would not be inconsistent with the intent and purpose of its proposal. 
Therefore, DOE is retaining the current regulations at 10 CFR 430.5(g) 
and (h) in this final rule.

III. Procedural Issues and Regulatory Review

A. Administrative Procedure Act

    Agency rules of procedure and practice, such as the one described 
in this document, are not subject to the requirement to provide prior 
notice and an opportunity for public comment pursuant to authority at 5 
U.S.C. 553(b)(A). DOE notes that a rule of this nature is also not a 
substantive rule subject to a 30-day delay in effective date pursuant 
to 5 U.S.C. 553(d). Nonetheless, DOE voluntarily offered an opportunity 
to the public to make comments on the changes set forth in this final 
rule.

B. Review Under Executive Orders 12866, 13563, and 14094 5
---------------------------------------------------------------------------

    \5\ 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) and 
E.O. 14094, ``Modernizing Regulatory Review,'' 88 FR 21879 (April 
11, 2023),
---------------------------------------------------------------------------

    This regulatory action is not a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866. Accordingly, this action 
was not subject to review under that Executive order by the Office of 
Information and Regulatory Affairs (OIRA) of the Office of Management 
and Budget (OMB).
    The revisions contained in this regulatory action are designed to 
clarify DOE's process with respect to its error correction process for 
addressing errors identified in the regulatory text of a draft pre-
publication document of a potential rule that would establish or amend 
the energy conservation standards of a regulated product or equipment. 
These revisions clarify the manner in which DOE will implement this 
error correction process and affirms the agency's retention of its 
discretion with respect to the handling of these pre-publication 
documents and any comments received regarding potential errors 
contained in the relevant regulatory text. These revisions would not 
impose any regulatory costs or burdens on stakeholders, nor would they 
in any way limit public participation in DOE's rulemaking process.

C. 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. The proposed 
rule was not subject to the requirement to provide prior notice and an 
opportunity for public comment, therefore, this final rule is not 
subject to the analytical requirements of the Regulatory Flexibility 
Act.

D. Review Under the Paperwork Reduction Act

    This final rule does not contain a collection of information for 
purposes of the Paperwork Reduction Act.

E. Review Under the National Environmental Policy Act of 1969

    DOE has determined that this final rule falls into a class of 
actions that are categorically excluded from review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's 
implementing regulations at 10 CFR part 1021. Specifically, this rule 
is strictly procedural and is covered by the Categorical Exclusion in 
10 CFR part 1021, subpart D, paragraph A6. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

F. Review Under Executive Order 13132

    Executive Order 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 that it will follow in the 
development of such regulations. 65 FR 13735. DOE has examined this 
final rule and has determined that it will 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 and equipment that would be subject to 
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(d)) No further action is required by Executive Order 13132.

G. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of

[[Page 22923]]

new regulations, section 3(a) of Executive Order 12988, ``Civil Justice 
Reform,'' imposes on Federal agencies the general duty to adhere to the 
following requirements: (1) Eliminate drafting errors and ambiguity; 
(2) write regulations to minimize litigation; and (3) provide a clear 
legal standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). 
Section 3(b) of Executive Order 12988 specifically requires that 
Executive agencies make every reasonable effort to ensure that the 
regulation: (1) Clearly specifies the preemptive effect, if any; (2) 
clearly specifies any effect on existing Federal law or regulation; (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction; (4) specifies the retroactive 
effect, if any; (5) adequately defines key terms; and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires Executive agencies to review regulations 
in light of applicable standards in section 3(a) and section 3(b) to 
determine whether they are met or it is unreasonable to meet one or 
more of them. DOE has completed the required review and determined 
that, to the extent permitted by law, this final rule meets the 
relevant standards of Executive Order 12988.

H. 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 resulting in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to 
develop an effective process to permit timely input by elected officers 
of State, local, and Tribal governments on a proposed ``significant 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect small governments. On March 18, 1997, 
DOE published a statement of policy on its process for 
intergovernmental consultation under UMRA. 62 FR 12820; also available 
at www.energy.gov/gc/office-general-counsel. DOE examined this final 
rule according to UMRA and its statement of policy and determined that 
the final rule contains neither an intergovernmental mandate, nor a 
mandate that may result in the expenditure of $100 million or more in 
any year, so these requirements do not apply.

I. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This final rule will not have any impact on the autonomy or integrity 
of the family as an institution. Accordingly, DOE has concluded that it 
is not necessary to prepare a Family Policymaking Assessment.

J. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights,'' 53 FR 8859 (Mar. 18, 1988), that this regulation will not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

K. 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 
guidelines established by each agency pursuant to general guidelines 
issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 
2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 
2002). DOE has reviewed this final rule under the OMB and DOE 
guidelines and has concluded that it is consistent with applicable 
policies in those guidelines.

L. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA 
at OMB, a Statement of Energy Effects for any significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated 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 if the regulation is implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use.
    This final rule is not a significant energy action because the 
ability to correct regulations will not, in itself, have a significant 
adverse effect on the supply, distribution, or use of energy. Moreover, 
it would not have a significant adverse effect on the supply, 
distribution, or use of energy, nor has it been designated as a 
significant energy action by the Administrator of OIRA. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

M. Congressional Notification

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

IV. 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, Small businesses.

Signing Authority

    This document of the Department of Energy was signed on March 25, 
2024, by Jeffrey Marootian, 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

[[Page 22924]]

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 26, 2024.
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. Revise and republish Sec.  430.5 to read as follows:


Sec.  430.5  Error correction procedures for energy conservation 
standards rules.

    (a) Scope and purpose. The regulations in this section describe an 
optional procedure through which the Department of Energy may accept 
and consider submissions regarding possible Errors in its rules under 
the Energy Policy and Conservation Act, as amended (42 U.S.C. 6291-
6317). This section applies to rules establishing or amending energy 
conservation standards under the Act, except that this section does not 
apply to direct final rules issued pursuant to section 325(p)(4) of the 
Act (42 U.S.C. 6295(p)(4)).
    (b) Definitions.
    Act means the Energy Policy and Conservation Act of 1975, as 
amended (42 U.S.C. 6291-6317).
    Error means an aspect of the regulatory text of a rule that is 
inconsistent with what the Secretary intended regarding the rule at the 
time of posting. Examples of possible mistakes that might give rise to 
Errors include:
    (i) A typographical mistake that causes the regulatory text to 
differ from how the preamble to the rule describes the rule;
    (ii) A calculation mistake that causes the numerical value of an 
energy conservation standard to differ from what technical support 
documents would justify; or
    (iii) A numbering mistake that causes a cross-reference to lead to 
the wrong text.
    Rule means a rule establishing or amending an energy conservation 
standard under the Act.
    Secretary means the Secretary of Energy or an official with 
delegated authority to perform a function of the Secretary of Energy 
under this section.
    (c) Posting of rules. (1) It is within in the sole discretion of 
the Secretary to make a rule available to the public to review for 
Errors in the document's regulatory text.
    (2) If a rule is made available for review, the Secretary 
ordinarily will keep the document posted for a period of 45 calendar 
days, but the Secretary in his or her discretion (while remaining 
consistent with his or her statutory obligations under EPCA and other 
legal obligations when promulgating an energy conservation standard) 
may shorten or lengthen the time period during which the rule document 
is posted.
    (3) Any rule document posted pursuant to paragraph (c)(1) of this 
section shall bear the following disclaimer: Notice: The text of this 
rule is subject to correction based on the identification of errors as 
defined in 10 CFR 430.5 before publication in the Federal Register. 
Readers are requested to notify the United States Department of Energy, 
by email at [EMAIL ADDRESS PROVIDED IN POSTED NOTICE], of any 
typographical or other errors, as described in such regulations, by no 
later than midnight on [DATE SPECIFIED IN THE POSTING OF THE DOCUMENT 
ON THE DEPARTMENT'S WEBSITE], in order that DOE may make any necessary 
corrections in the regulatory text submitted to the Office of the 
Federal Register for publication.
    (d) Request for error-correction review. (1) A person identifying 
an Error subject to this section may request that the Secretary review 
a potential Error. Such a request must ordinarily be submitted within 
45 calendar days of the posting of the rule pursuant to paragraph 
(c)(1) of this section. The Secretary in his or her discretion may 
shorten or lengthen the time period during which such requests may be 
submitted.
    (2)(i) A request under this section must identify a potential Error 
with particularity. The request must specify the regulatory text 
claimed to be erroneous. The request must also provide text that the 
requester contends would be a correct substitute. If a requester is 
unable to identify a correct substitute, the requester may submit a 
request that states that the requester is unable to determine what text 
would be correct and explains why the requester is unable to do so. The 
request must also substantiate the claimed Error by citing evidence 
from the existing record of the rulemaking, demonstrating that the 
regulatory text of the rule is inconsistent with what the Secretary 
intended the text to be.
    (ii) A person's disagreement with any policy choices or 
discretionary decisions that are contained in the rule will not 
constitute a valid basis for a request under this section. All policy 
and discretionary decisions with regard to whether to establish or 
amend any conservation standard and, if so, the appropriate level at 
which to amend or establish that standard, remain within the sole 
discretion of the Secretary without regard to the procedures 
established in this section.
    (3) The evidence to substantiate a request (or evidence of the 
Error itself) must be in the record of the rulemaking at the time of 
posting the rule, which may include an accompanying preamble. The 
Secretary will not consider new evidence submitted in connection with 
an error-correction request.
    (4) A request under this section must be filed in electronic format 
by email to the address that the disclaimer to the rule designates for 
error-correction requests. Should filing by email not be feasible, the 
requester should contact the program point of contact designated in the 
rule order to ascertain an appropriate alternative means of filing an 
error-correction request.
    (5) A request that does not comply with the requirements of this 
section will not be considered.
    (e) Correction of rules. The Secretary may respond to a request for 
correction under paragraph (d) of this section or address an Error 
discovered on the Secretary's own initiative by submitting to the 
Office of the Federal Register either a corrected rule or the rule as 
previously posted.
    (f) Publication in the Federal Register. (1) If, after receiving 
one or more properly filed requests for correction, the Secretary 
decides not to undertake any corrections, the Secretary will submit the 
rule for publication to the Office of the Federal Register as it was 
posted pursuant to paragraph (c)(1) of this section.
    (2) If the Secretary receives no properly filed requests after 
posting a rule and identifies no Errors on the Secretary's own 
initiative, the Secretary will submit the rule, as it was posted 
pursuant to paragraph (c)(1) of this section, to the Office of the 
Federal Register for publication. This will occur after the period 
prescribed pursuant to paragraph (c)(2) of this section has elapsed.

[[Page 22925]]

    (3) If the Secretary receives a properly filed request after 
posting a rule pursuant to paragraph (c)(1) of this section and 
determines that a correction is necessary, or discovers an Error on the 
Secretary's own initiative, the Secretary will, absent extenuating 
circumstances, submit a corrected rule for publication in the Federal 
Register within 30 days after the period prescribed by paragraph (c)(2) 
of this section has elapsed.
    (4) Consistent with the Act, compliance with an energy conservation 
standard will be required upon the specified compliance date as 
published in the relevant rule in the Federal Register.
    (5) Consistent with the Administrative Procedure Act, and other 
applicable law, the Secretary will ordinarily designate an effective 
date for a rule under this section that is no less than 30 days after 
the publication of the rule in the Federal Register.
    (6) When the Secretary submits a rule for publication, the 
Secretary will make publicly available a written statement indicating 
how any properly filed requests for correction were handled.
    (g) Alteration of standards. Until an energy conservation standard 
has been published in the Federal Register, the Secretary may correct 
such standard, consistent with the Administrative Procedure Act.
    (h) Judicial review. For determining the prematurity, timeliness, 
or lateness of a petition for judicial review pursuant to section 
336(b) of the Act (42 U.S.C. 6306), a rule is considered ``prescribed'' 
on the date when the rule is published in the Federal Register.

[FR Doc. 2024-06690 Filed 4-2-24; 8:45 am]
BILLING CODE 6450-01-P