Rule2023-05587
Energy Conservation Program for Consumer Products: Soft Lights Foundation; Petition for Repeal
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Published
March 21, 2023
Issuing agencies
Energy Department
Abstract
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.
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<title>Federal Register, Volume 88 Issue 54 (Tuesday, March 21, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05587]
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Rules and Regulations
Federal Register
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This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 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 <a href="http://www.regulations.gov/#!docketDetail">www.regulations.gov/#!docketDetail</a>;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 <a href="http://www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=4">www1.eere.energy.gov/buildings/appliance_standards/standards.aspx?productid=4</a>.
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:
<a href="/cdn-cgi/l/email-protection#3b7a4b4b57525a55585e684f5a555f5a495f486a4e5e484f525455487b5e5e155f545e155c544d"><span class="__cf_email__" data-cfemail="307140405c59515e53556344515e54514254436145554344595f5e437055551e545f551e575f46">[email protected]</span></a>.
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.
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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
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