Proposed Rule2023-27182
Energy Conservation Program: Energy Conservation Standards for Manufactured Housing; Enforcement
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 26, 2023
Issuing agencies
Energy Department
Abstract
The U.S. Department of Energy (DOE) is proposing to establish enforcement procedures for its energy conservation standards for manufactured housing. DOE recently amended the compliance date for these standards in a final rule to delay compliance. DOE delayed the compliance date to allow DOE more time for this rulemaking to establish enforcement procedures that provide clarity for manufacturers and other stakeholders regarding DOE's expectations of manufacturers and DOE's plans for enforcing the standards.
Full Text
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[Federal Register Volume 88, Number 246 (Tuesday, December 26, 2023)]
[Proposed Rules]
[Pages 88844-88854]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27182]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 246 / Tuesday, December 26, 2023 /
Proposed Rules
[[Page 88844]]
DEPARTMENT OF ENERGY
10 CFR Part 460
[EERE-2009-BT-BC-0021]
RIN 1904-AF53
Energy Conservation Program: Energy Conservation Standards for
Manufactured Housing; Enforcement
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Energy (DOE) is proposing to establish
enforcement procedures for its energy conservation standards for
manufactured housing. DOE recently amended the compliance date for
these standards in a final rule to delay compliance. DOE delayed the
compliance date to allow DOE more time for this rulemaking to establish
enforcement procedures that provide clarity for manufacturers and other
stakeholders regarding DOE's expectations of manufacturers and DOE's
plans for enforcing the standards.
DATES: DOE will accept comments, data, and information regarding the
notice of proposed rulemaking received no later than February 26, 2024.
See section V, ``Public Participation,'' for details.
ADDRESSES: The docket for this proposed rulemaking, which includes
Federal Register notices, comments, and other supporting documents/
materials, is available for review at <a href="http://www.regulations.gov">www.regulations.gov</a>. All
documents in the docket are listed in the <a href="http://www.regulations.gov">www.regulations.gov</a> index.
However, not all documents listed in the index may be publicly
available, such as information that is exempt from public disclosure.
The docket web page can be found at <a href="http://www.regulations.gov/docket?D=EERE-2009-BT-BC-0021">www.regulations.gov/docket?D=EERE-2009-BT-BC-0021</a>. The docket web page contains
instructions on how to access all documents, including public comments,
in the docket. See section V for information on how to submit comments
through <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Mr. Matthew Schneider, U.S. Department
of Energy, Office of the General Counsel (GC-33), 1000 Independence
Avenue SW, Washington, DC 20585; Telephone: (240) 597-6265; Email:
<a href="/cdn-cgi/l/email-protection#6904081d1d010c1e471a0a01070c000d0c1b290118470d060c470e061f"><span class="__cf_email__" data-cfemail="64090510100c01134a17070c0a010d000116240c154a000b014a030b12">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Discussion of Proposed Rule
III. Expected Costs to Manufacturers From the Proposed Rule
IV. Procedural Issues and Regulatory Review
V. Public Participation
VI. Approval of the Office of the Secretary
I. Background
The Energy Independence and Security Act of 2007 (``EISA,'' Pub. L.
110-140) directs the U.S. Department of Energy (``DOE'' or, in context,
``the Department'') to establish energy conservation standards for
manufactured housing.\1\ (42 U.S.C. 17071) Manufactured homes are
constructed according to standards administered by the U.S. Department
of Housing and Urban Development (``HUD Code''). 24 CFR part 3280. See
also generally 42 U.S.C. 5401-5426. Structures, such as site-built and
modular homes, that are constructed to state, local, or regional
building codes are excluded from the coverage of the HUD Code.\2\
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\1\ The National Manufactured Housing Construction and Safety
Standards Act of 1974, as amended, defines ``manufactured home'' as
a structure, transportable in one or more sections, which in the
traveling mode is 8 body feet or more in width or 40 body feet or
more in length or which when erected on-site is 320 or more square
feet, and which is built on a permanent chassis and designed to be
used as a dwelling with or without a permanent foundation when
connected to the required utilities, and includes the plumbing,
heating, air conditioning, and electrical systems contained therein
. . . . . 42 U.S.C. 5402(6).
\2\ See 42 U.S.C. 5403(f). See also 24 CFR 3282.12.
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EISA directs DOE to base its standards on the most recent version
of the International Energy Conservation Code (``IECC'') and any
supplements to that code, except in cases where DOE finds that the IECC
is not cost-effective or where a more stringent standard would be more
cost-effective, based on the impact of the IECC on the purchase price
of manufactured housing and on total life-cycle construction and
operating costs. (See 42 U.S.C. 17071(b)(1))
On June 17, 2016, DOE published in the Federal Register a notice of
proposed rulemaking (``NOPR'') to propose energy conservation standards
for manufactured housing, including proposals recommended by the
negotiated rulemaking working group for manufactured housing. 81 FR
39756 (``June 2016 NOPR''). DOE received nearly 50 comments on the
proposed rule during the comment period. In addition, DOE also received
over 700 substantively similar form letters from individuals.
On August 3, 2018, DOE published a Notice of Data Availability
(``NODA''), stating it was examining possible alternatives to the
requirements proposed in the June 2016 NOPR and seeking further input
from the public, including on first-time costs related to the purchase
of manufactured homes. 83 FR 38073 (``August 2018 NODA''). Prior to the
NODA, in December of 2017, the Sierra Club filed a lawsuit against DOE
in the U.S. District Court for the District of Columbia, alleging that
DOE had failed to meet its statutory deadline for establishing energy
conservation standards for manufactured housing. Sierra Club v.
Granholm, No. 1:17-cv-02700-EGS (D.D.C. filed Dec. 18, 2017). In
November 2019, the court entered a consent decree in which DOE agreed
to complete the rulemaking by stipulated dates.
After evaluating the comments received in response to the June 2016
NOPR and the August 2018 NODA, DOE published a supplemental NOPR
(``SNOPR'') on August 26, 2021, in which DOE proposed energy
conservation standards for manufactured homes based on the 2021 IECC.
86 FR 47744 (``August 2021 SNOPR''). DOE's primary proposal in the
August 2021 SNOPR was a ``tiered'' approach based on the 2021 IECC. The
``tiered'' approach identifies a subset of less stringent energy
conservation standards for certain manufactured homes (based on retail
list price) in light of the cost-effectiveness considerations required
by EISA. DOE's alternate proposal was an ``untiered'' approach, wherein
energy conservation standards for all manufactured homes would be based
on certain thermal envelope components and specifications of the 2021
IECC. Both proposals replaced the
[[Page 88845]]
June 2016 NOPR proposal. Id. DOE sought comment on these proposals, as
well as alternate thresholds, including a size-based threshold (e.g.,
square footage, number of sections) and a region-based threshold, and
alternative exterior wall insulation requirements (R-21) for certain
HUD zones. Id.
On October 26, 2021, DOE published a NODA regarding updated inputs
and results of the analyses presented in the August 2021 SNOPR (both
``tiered'' and ``untiered'' approaches), including a sensitivity
analysis regarding an alternative sized-based tier threshold and an
alternate exterior wall insulation requirement (R-21) for certain HUD
zones. 86 FR 59042 (``October 2021 NODA''). In addition, DOE reopened
the public comment period on the August 2021 SNOPR through November 26,
2021. DOE sought comments on the updated inputs and corresponding
analyses, encouraged stakeholders to provide additional data to inform
the analyses, and stated it might further revise the rulemaking
analysis based on new or updated information. Id.
On May 31, 2022, DOE published a final rule codifying the proposed
energy conservation standards for manufactured housing in a new part of
the Code of Federal Regulations (``CFR'') under 10 CFR part 460,
subparts A, B, and C (``May 2022 Final Rule''). 87 FR 32728. Subpart A
of 10 CFR part 460 presents generally the scope of the rule and
provides definitions of key terms. Subpart B establishes new
requirements for manufactured homes that relate to climate zones, the
building thermal envelope, air sealing, and installation of insulation,
based on certain provisions of the 2021 IECC. Subpart C establishes new
requirements based on the 2021 IECC related to duct sealing; heating,
ventilation, and air conditioning (``HVAC''); service hot water
systems; mechanical ventilation fan efficacy; and heating and cooling
equipment sizing.
Under the energy conservation standards, the stringency of the
requirements under subpart B are based on a tiered approach depending
on the number of sections of the manufactured home. Accordingly, two
sets of standards are established in subpart B (i.e., Tier 1 and Tier
2). Both Tier 1 and Tier 2 incorporate building thermal envelope
measures based on certain thermal envelope components subject to the
2021 IECC that DOE determined applicable and appropriate for
manufactured homes. Tier 1 applies these building thermal envelope
provisions to single-section manufactured homes, but only includes
components at stringencies that would increase the incremental purchase
price by less than $750 in order to address affordability concerns that
were raised by HUD and other stakeholders during the consultation and
rulemaking process. Tier 2 applies these same building thermal envelope
provisions to multi-section manufactured homes but at higher
stringencies specified for site-built homes in the 2021 IECC, with an
alternate exterior wall insulation requirement (R-21) for climate zones
2 and 3 based on consideration of the design and factory construction
techniques of manufactured homes, as presented in the August 2021 SNOPR
and October 2021 NODA. Manufacturers can comply with the building
thermal envelope requirements through a prescriptive pathway (e.g.,
using materials with specified ratings) or a performance pathway based
on overall thermal transmittance (Uo) performance. See 10 CFR
460.102(c). Further, the energy conservation standards for both tiers
also include duct and air sealing, insulation installation, HVAC and
service hot water system specifications, mechanical ventilation fan
efficacy, and heating and cooling equipment sizing provisions, based on
the 2021 IECC. DOE concluded that this approach is cost-effective based
on the expected total life-cycle cost (``LCC'') savings for the
lifetime of the home associated with implementation of the energy
conservation standards. See e.g., 87 FR 32742.
In the May 2022 Final Rule, DOE adopted a compliance date such that
the standards would apply to manufactured homes that are manufactured
on or after one year following the publication date of the final rule
in the Federal Register, which is May 31, 2023. In doing so, DOE noted
its belief that many manufacturers already have experience complying
with efficiency requirements similar to what DOE required in the May
2022 Final Rule based on manufacturers' previous experience with HUD Uo
requirements and ENERGY STAR Version 2 efficiency requirements for
homes produced on or after June 1, 2020. 87 FR 32759. DOE did not
specify its approach for enforcement of the standards in the May 2022
Final Rule and noted that manufacturers would be able to comply with
the standards as they were issued. In fact, DOE noted that many of the
requirements in the standards would require minimal compliance efforts
(e.g., documenting the use of materials already subject to separate
Federal or industry standards, such as the R-value of insulation or U-
factor values for fenestration). 87 FR 32758, 32790. Nevertheless, DOE
stated in the May 2022 Final Rule that it may address compliance and
enforcement issues and procedures in a future agency action (see 87 FR
32757-32758), which is discussed further in section II of this
document.
On March 24, 2023, DOE published in the Federal Register a NOPR
proposing to amend the compliance date for the manufactured housing
energy conservation standards (88 FR 17745, ``March 2023 NOPR''). In
that NOPR, DOE described the need to amend the compliance date for the
manufactured housing standards, noting that it had not yet issued
procedures for investigating and enforcing against noncompliance with
the standards, and that a delay was necessary to ensure that DOE can
receive and incorporate meaningful stakeholder feedback into its
enforcement procedures prior to part 460's compliance date.
Accordingly, DOE proposed to require compliance with the Tier 1
standards beginning 60 days after publication of its final enforcement
procedures, and compliance with the Tier 2 standards beginning 180 days
after publication of its final enforcement procedures. By final rule
published on May 30, 2023 (May 2023 Final Rule) DOE amended the
compliance date for part 460 consistent with its proposed compliance
date in the NOPR for Tier 1 (i.e., 60 days after issuance of DOE's
enforcement procedures for part 460). However, for Tier 2, DOE amended
the compliance date to July 1, 2025. 88 FR 34411. After consideration
of comments on the NOPR, DOE determined that amending the compliance
date to July 1, 2025, for Tier 2 homes would (1) provide greater
certainty for manufacturers versus an indeterminate date, (2) ensure
DOE will have enough time to develop enforcement procedures and engage
in the rulemaking process, including providing adequate time for
stakeholders to submit robust feedback on DOE's proposed enforcement
procedures, and (3) provide manufacturers with sufficient time to
adjust their operations and practices consistent with DOE's enforcement
procedures. 88 FR 34412.
II. Discussion of Proposed Rule
Pursuant to section 413 of the Energy Independence and Security Act
(``EISA''), DOE is authorized to initiate enforcement actions to ensure
compliance with its energy conservation standards for manufactured
housing. In this section, DOE provides a section-by-section analysis of
its proposed rule to establish procedures for such enforcement actions.
As discussed herein, DOE proposes to amend subpart
[[Page 88846]]
D to its regulations at 10 CFR part 460 to set forth prohibited acts,
civil penalty amounts, investigation and enforcement procedures,
recordkeeping requirements, and civil penalty collection procedures. In
particular, DOE proposes that it will determine compliance by reviewing
certain manufacturer records. DOE is not proposing specific test
procedures to demonstrate compliance with DOE's standards. Nor is DOE
proposing to require manufacturers to certify that their manufactured
home models comply with DOE's standards. In addition, DOE proposes to
clarify that manufacturers may demonstrate compliance with the 10 CFR
460.205 requirements for sizing of heating and cooling equipment by
using either the approach in the Air Conditioning Contractors of
America (ACCA) Manual J and ACCA Manual S or the approach codified in
HUD's regulations at 24 CFR 3280.508.
General Counsel Responsibilities
Proposed Sec. 460.302 provides that the Office of the DOE General
Counsel may assist in investigations of alleged violations of part 460,
prosecute civil enforcement actions under part 460, compromise and
assess civil penalties initiated under part 460, represent DOE in any
formal proceedings or hearings before an Administrative Law Judge
(``ALJ'') in cases involving alleged violations of part 460, and refer
cases to the Attorney General for the collection of civil penalties.
Prohibited Acts and Civil Penalties
Proposed Sec. 460.304 lists prohibited acts that will be subject
to civil enforcement action under part 460. These prohibited acts
include the sale, importation, or distribution into commerce in the
United States of a manufactured home that is not in compliance with any
energy conservation standard or requirement in part 460. (42 U.S.C.
17071) They also include any failure of a manufacturer to maintain,
provide to DOE, or permit DOE access to any information, records, or
documents required under part 460.
DOE also proposes in Sec. 460.304 to clarify that certain acts
relating to sizing of heating and cooling equipment comply with the
energy conservation standard and do not constitute a violation under
Sec. 460.304(a)(2). Specifically, in Sec. 460.304(d), DOE proposes to
clarify that a manufacturer may use the approach codified in HUD
regulations referencing the American Society of Heating, Refrigerating
and Air Conditioning Engineers (ASHRAE) Handbook of Fundamentals for
determining manufactured home heat loss/heat gain. See 24 CFR 3280.508.
DOE is proposing to clarify that this approach can be used in lieu of
using Air Conditioning Contractors of America (ACCA) Manual J and ACCA
Manual S for sizing of heating and cooling equipment as specified in
the energy conservation standard at 10 CFR 460.205. DOE has tentatively
determined that both approaches sufficiently align with the intent of
10 CFR 460.205 supporting appropriate sizing of heating and cooling
equipment in manufactured housing and are not expected to impact the
stringency of the energy conservation standards in Sec. 460.205.
Further, DOE understands that certain details of the final installation
location, such as the house orientation, may not always be available
when equipment sizing is occurring. Thus, DOE proposes to allow an
alternate sizing approach to be used as specified by the ASHRAE
Handbook of Fundamentals pursuant to the methodology adopted by HUD.
Proposed Sec. 460.304 explains the potential civil penalties for
prohibited acts under part 460. It provides that a manufacturer that
commits a prohibited act may be subject to assessment of a civil
penalty of up to one percent of the manufacturer's retail list price of
the manufactured home per violation, in keeping with the maximum civil
penalty for violations of provisions of DOE's energy conservation
manufactured housing regulations set forth in accordance with section
413(c) of EISA.
Proposed Sec. 460.304 also describes how DOE will calculate civil
penalties for prohibited acts. It provides that each day a manufacturer
fails to maintain, provide, or permit access to information, records,
or documents will be considered a separate violation. It also provides
that each failure to comply with a standard or requirement of part 460,
per unit sold, imported, or introduced into commerce in the United
States, will be considered a separate violation. For example, if a
manufactured home model fails to comply with three standards in part
460, the manufacturer has sold, imported, or distributed in commerce
100 units of that model,\3\ and the retail list price of that model is
$200,000, then the manufacturer will subject to a civil penalty of up
to $600,000 ($200,000 retail list price x 1% x 3 violations x 100
units).
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\3\ As discussed in the Notice of Noncompliance section, for the
first five years after the compliance date for a type of home (Tier
1 or 2), DOE will consider only units the manufacturer sold,
imported, or distributed in commerce from the compliance date for
that type of home (Tier 1 or 2) to the date the notice of
noncompliance determination is issued. Once five years has passed
from the compliance date for a type of home, DOE will consider units
the manufacturer sold, imported, or distributed in commerce for the
five years prior to the date the notice of noncompliance is issued.
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DOE notes that section 413 of EISA does not specifically provide
for the assessment of civil penalties for a manufacturer's failure to
maintain or provide to DOE information, records, or documents. However,
section 413(a) requires the Secretary, by regulation, to establish
standards for energy efficiency in manufactured housing. Section 413(c)
provides that any manufacturer of manufactured housing that violates a
provision of the regulations issued under section 413(a) is liable to
the United States for a civil penalty. DOE is proposing to add these
enforcement procedures pursuant to section 413(a) to carry out its
obligation under EISA to ensure that manufacturers comply with DOE's
energy conservation standards. Accordingly, DOE is proposing to require
manufacturers to maintain and provide information, records, and
documents related to compliance with DOE's energy conservation
standards, and subjecting manufacturers that fail or refuse to do so to
civil penalties, so that DOE can ensure that manufacturers provide DOE
with the records necessary to determine whether they are complying with
the manufactured housing energy conservation standards. DOE is also
evaluating and considering its subpoena authority under EISA.
In addition, the Secretary has the authority under 42 U.S.C. 7254
to prescribe procedural and administrative rules and regulations that
the Secretary ``may deem necessary or appropriate to administer and
manage the functions now or hereafter vested in'' the Secretary. Under
42 U.S.C. 7101(b), the term ``function'' includes reference to any
duty, obligation, power, authority, responsibility, right, privilege,
and activity, or the plural thereof. The Secretary has determined that
the proposed recordkeeping requirements and civil penalties in this
rulemaking are necessary to administer and manage the Secretary's
duties and obligations under EISA.
Investigation Procedures
Proposed Sec. 460.306 explains how DOE will conduct investigations
to determine whether manufacturers are in compliance with the energy
conservation standards and other requirements of part 460. DOE may
initiate an investigation on its own or upon receipt of information
alleging
[[Page 88847]]
potential noncompliance. DOE will not require manufacturers to certify
to the Department that their designs or manufactured homes comply with
part 460. Rather, DOE may request that a manufacturer provide one or
more of the records listed in this section so that DOE can determine
whether the manufacturer is in compliance with the requirements of part
460. If DOE makes such a request of a manufacturer during an
administrative action, investigation, or audit conducted by DOE
pursuant to part 460, the manufacturer will be required to provide the
requested records to DOE. As discussed previously, if a manufacturer
fails or refuses to do so, the manufacturer will be subject to civil
penalties.
Paragraph (a) of the proposed Sec. 460.306 lists four types of
records that DOE may request from a manufacturer to determine whether
the manufacturer is in compliance with part 460. These are records that
manufacturers must already maintain or provide to the Department of
Housing and Urban Development (``HUD'') pursuant to HUD regulations in
24 CFR part 3282.\4\ Under proposed paragraph (c), DOE may request
additional available records if DOE determines they are necessary as
part of an administrative action, investigation, or audit. During the
course of any such action, investigation, or audit, DOE also may obtain
additional information and records from publicly available sources.
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\4\ See 24 CFR 3282.203, 3282.417, and 3282.608.
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DOE proposes to require manufacturers to maintain the records
listed in paragraph (a) in accordance with HUD requirements. DOE is
also considering requiring the records it is proposing to require
manufacturers to maintain in Sec. 460.306(a) to be retained for a
specific period of years. DOE requests comment on whether it should
proceed with such a requirement and what period of time may be
appropriate. While DOE is not proposing to require manufacturers to
maintain any additional records, under paragraph (c), a manufacturer
may be required to provide to DOE additional records in its possession
if DOE requests such records pursuant to an administrative action,
audit, or investigation conducted by DOE against the manufacturer.
Warning Letters
Proposed Sec. 460.308 would allow DOE to dispose of a matter with
a Warning Letter if DOE determines that a violation or alleged
violation of part 460 does not warrant the assessment of a civil
penalty. This proposed section specifies that a Warning Letter issued
under this section does not constitute a formal adjudication of the
matter and is not subject to the appeal procedures proposed in this
proposed rulemaking.
Notice of Noncompliance Determination
Proposed Sec. 460.310 provides that if DOE determines that a
manufactured home design or model does not conform to a standard or
requirement in part 460, based on DOE's investigation or admissions by
a manufacturer, DOE may issue a notice of noncompliance determination
to the manufacturer.\5\ DOE will review records to evaluate whether one
or more of the aspects of a manufactured home design or model is
noncompliant. If DOE determines that one or more aspects of the design
or model is noncompliant, DOE may issue to the manufacturer a notice of
noncompliance determination addressing each violation depending on the
facts of the specific case. A manufacturer that receives a notice of
noncompliance determination from DOE would be required to provide to
DOE, within the 30-day time period prescribed by DOE, information
pertaining to the acquisition, ordering, storage, shipment,
importation, or sale of units of the design or model of manufactured
home determined to be noncompliant.
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\5\ A determination issued by DOE under this proposed rule shall
be distinct from any other notices issued to a manufacturer by other
agencies under their respective enforcement authority.
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As noted previously, DOE issued a final rule (88 FR 34411) to delay
compliance until July 1, 2025, for Tier 2 homes, and until 60 days
after issuance of enforcement procedures for Tier 1 homes. Accordingly,
for the first five years after the compliance date for a type of home
(Tier 1 or 2), DOE will request such information for the time from the
compliance date for that type of home (Tier 1 or 2) to the date the
notice of noncompliance determination is issued. Once five years has
passed from the compliance date for a type of home, DOE will request
such information for the five years prior to the date the notice of
noncompliance is issued. For example, if DOE issues a notice of
noncompliance determination for a Tier 2 manufactured home on August 1,
2027, DOE will request sales and other information for that model from
July 1, 2025 (the compliance date for Tier 2 homes), through August 1,
2027. However, if DOE issues a notice of noncompliance determination
for a Tier 2 home on August 1, 2031, DOE will request sales and other
information for that model for the five years prior to August 1, 2031.
DOE will give manufacturers 30 calendar days to provide the
requested information. A manufacturer that fails or refuses to provide
such information will be subject to civil penalties under part 460.
Civil Enforcement Procedures
Prior to imposing a civil penalty for noncompliance with part 460,
DOE proposes to provide manufacturers with written notice of the
proposed penalty and options for responding to the notice. Under
proposed Sec. 460.312, a manufacturer that receives a Notice of
Proposed Civil Penalty will have 30 days from receipt of the notice to
exercise one of the following options: (1) request that DOE issue an
Order assessing the civil penalty proposed in the notice, in which case
the manufacturer waives the right to request a hearing before an ALJ;
(2) request a settlement conference with the DOE attorney who issued
the notice, in which case the manufacturer also may submit to DOE
additional information and evidence related to the alleged violations,
the amount of the proposed civil penalty, and the manufacturer's
ability to pay the proposed civil penalty; or (3) request a hearing
before an ALJ. DOE is also considering providing manufacturers the
option of seeking judicial review of the notice of civil penalty in a
U.S. District Court in lieu of a hearing before an ALJ. DOE requests
public comment on whether to include this option.
DOE proposes in Sec. 460.316 that if: a manufacturer does not
respond to the notice within 30 days of receipt; the manufacturer
selects option (2) but fails to attend the settlement conference; or
the manufacturer selects option (2) and DOE and the manufacturer are
unable to resolve the matter informally, DOE will issue a Final Notice
of Proposed Civil Penalty to the manufacturer. The manufacturer will
then have 15 days from receipt of the final notice to exercise one of
the following options: (1) request that DOE issue an Order assessing
the civil penalty proposed in the final notice, in which case the
manufacturer waives the right to request a hearing before an ALJ; or
(2) request a hearing before an ALJ.
If the manufacturer fails to respond to the final notice within 15
days of receipt, the manufacturer waives the right to participate in
the informal procedures set forth in this subpart and the right to
request a formal hearing before an ALJ, and DOE will issue to the
manufacturer an Order in which DOE finds that the manufacturer
committed the violations alleged, and assesses the
[[Page 88848]]
civil penalty proposed, in the final notice.
Proposed Sec. 460.314 would allow DOE to compromise and settle
civil penalty cases brought under part 460 at any time prior to a final
decision by a Federal court of competent jurisdiction. In compromising
or settling a civil penalty case, DOE may consider aggravating and
mitigating factors. For more information on DOE's civil penalty policy,
see <a href="https://www.energy.gov/gc/articles/civil-penalties-energy-conservation-standards-program-violations-policy-statement">https://www.energy.gov/gc/articles/civil-penalties-energy-conservation-standards-program-violations-policy-statement</a>.
If DOE and the manufacturer agree to compromise the proposed civil
penalty at any time prior to a final decision by a Federal court of
competent jurisdiction, DOE will issue to the manufacturer an Order
assessing the agreed upon civil penalty. If a manufacturer requested a
hearing before an ALJ, and the ALJ's initial decision recommending a
civil penalty is not appealed, DOE will issue an Order assessing the
civil penalty recommended by the ALJ. DOE proposes to give
manufacturers 30 days after receipt of any Order assessing a civil
penalty under part 460 to pay the civil penalty.
DOE believes the procedures in proposed Sec. Sec. 460.312 to
460.316 are necessary to provide for the expeditious resolution of
civil penalty cases under part 460, while maintaining the opportunity
for manufacturers to engage with DOE to settle cases and providing due
process to manufacturers, including the opportunity for hearings before
an ALJ and the opportunity to appeal ALJ decisions.
Administrative Law Judge Hearing and Appeal
Proposed Sec. 460.320 explains that if a manufacturer responds to
a Notice of Proposed Civil Penalty or Final Notice of Proposed Civil
Penalty by electing a formal hearing before an Administrative Law
Judge, DOE will conduct such hearings in accordance with DOE's
Procedures for Administrative Adjudication of Civil Penalty Actions,
which are available at: <a href="https://www.energy.gov/gc/doe-procedures-administrative-adjudication-civil-penalty-actions">https://www.energy.gov/gc/doe-procedures-administrative-adjudication-civil-penalty-actions</a>.
Proposed Sec. 460.320 provides that after considering all matters
of record in a proceeding, the ALJ will issue an initial decision. The
ALJ's initial decision will include a statement of the ALJ's findings
and conclusions on all material issues of fact, law, and discretion, as
well as the ALJ's reasons for such findings and conclusions. If the ALJ
finds that a manufacturer committed a prohibited act and that a civil
penalty is warranted, the decision will include the amount of the civil
penalty. DOE notes that nothing in this subpart guarantees that a case
will proceed to a formal hearing, as an ALJ may issue an initial
decision after considering the pleadings and any motions for decision.
Proposed Sec. 460.320 provides that if the ALJ's initial decision
includes a finding that a manufacturer committed a prohibited act and a
recommended civil penalty, and the initial decision is not appealed in
accordance with DOE's Procedures for Administrative Adjudication of
Civil Penalty Actions, the DOE General Counsel will issue an Order
assessing the civil penalty. The DOE General Counsel will include in
the Order the ALJ's findings of fact, conclusions of law and
discretion, and the amount of the civil penalty.
Finally, proposed Sec. 460.320 provides that if the ALJ's initial
decision is appealed in accordance with DOE's Procedures for
Administrative Adjudication of Civil Penalty Actions, then the DOE
Decision Maker will issue a final agency decision in accordance with
those procedures. The proposed section deviates from the procedures
with respect to judicial review, however, in that it provides that any
such final agency decision may be appealed to a federal court with
competent jurisdiction instead of to a federal circuit court of
appeals. It also provides that only a final agency decision may be
appealed to a federal court of competent jurisdiction.
Collection of Civil Penalties
DOE proposes that if a manufacturer fails to pay an assessed civil
penalty within 30 days of receipt of the Order assessing the civil
penalty, DOE may refer the debt to the U.S. Treasury Department or the
Attorney General of the United States, or his or her delegate, for
collection of the civil penalty. DOE proposes that in any such action,
the validity and appropriateness of the Order assessing the civil
penalty will not be subject to review.
III. Expected Costs to Manufacturers From the Proposed Rule
In the May 2022 Final Rule, DOE monetized the costs and benefits
expected to result from the amended standards. These costs included
costs to manufacturers to produce and transport compliant manufactured
homes, the increased installed costs that the consumer would see when
purchasing and installing a new manufactured home, along with the
incremental utility bill savings and incremental maintenance costs that
a consumer would expect to experience during the lifetime operation. At
the time of the May 2022 Final Rule, DOE had not determined the
specific procedures it would utilize to ensure compliance with the
energy conservation standards being adopted, but DOE noted its
expectation that only minimal compliance efforts would be required, and
that such efforts would result in minimal additional costs to
manufacturers. See 87 FR 23758. Based on the procedures DOE is
proposing in this document, DOE tentatively concludes, consistent with
the expectations it stated in the May 2022 Final Rule, see Id., that
the costs of complying with DOE's enforcement mechanisms will be
minimal. Specifically, in this rulemaking, DOE is not proposing to
require manufacturers to conduct any testing of manufactured homes,
require manufactured homes to be inspected prior to sale to consumers,
or require manufacturers (or any third-party agency) to certify
compliance with DOE's energy conservation standards. Rather, the
proposed regulations in this document outline DOE's procedures for
investigating potential instances of noncompliance, assessing civil
penalties in accordance with EISA, and the associated appeals
procedures. To ensure DOE is able to conduct such investigations, this
proposed rule requires that a manufacturer maintain and provide to DOE
information and records relevant to investigating and determining
compliance with the energy conservation standards. However, the
documentation that manufacturers would be required to maintain by Sec.
460.306(a) of this proposed rule is already subject to separate,
existing maintenance requirements imposed by HUD. Therefore, this
proposed rule would not impose any new, additional costs beyond the
costs already required by separate requirements. See 88 FR 45237.
Specifically, DOE is proposing to require manufacturers to maintain the
following records in accordance with HUD requirements: the information
and records submitted by a manufacturer and approved by its Design
Approval Primary Inspection Agency (DAPIA) pursuant to 24 CFR
3282.203(g) and 3282.361(b)(4); \6\ the approved quality assurance
manual received from a DAPIA pursuant to 24 CFR
[[Page 88849]]
3282.361(c)(3); \7\ records related to a manufacturer's determination
of noncompliance, defect, serious defect, or imminent safety hazard, as
well as any corrections made by the manufacturer that the manufacturer
is required to maintain under 24 CFR 3282.417; \8\ and records and
reports related to on-site construction of manufactured homes that the
manufacturer is required to maintain pursuant to 24 CFR 3282.608.\9\
---------------------------------------------------------------------------
\6\ 24 CFR 3282.203(g) requires manufacturers to maintain a copy
of the drawings, specifications, and sketches from each approved
design received from a DAPIA under 24 CFR 3282.361(b)(4) and a copy
of the approved quality assurance manual received from a DAPIA under
24 CFR 3282.361(c)(3). It requires the manufacturer to keep these
materials current and readily accessible for use by the Secretary of
HUD or other parties acting under the HUD regulations.
\7\ Id.
\8\ 24 CFR 3282.417(e) requires a manufacturer to maintain
records related to such determinations, notifications, and
corrections.
\9\ 24 CFR 3282.608(n) requires a manufacturer to maintain the
approval notification from the DAPIA, the manufacturer's final on-
site inspection report and certification of completion, and the
Production Inspection Primary Inspection Agency's acceptance of the
final site inspection report and certification. A manufacturer is
required to make these records available for review by HUD in the
factory of origin. In addition, 24 CFR 3282.608(q) requires a
manufacturer to maintain all records for on-site completion for each
home, as required by 24 CFR 3282.608, in the unit file to be
maintained by the manufacturer.
---------------------------------------------------------------------------
In light of the previous, DOE tentatively concludes additional
costs imposed by this proposed rule would be minimal. For this reason,
the adoption of the enforcement procedures proposed in this document
would not alter DOE's assessment in the May 2022 Final Rule of the
costs resulting from the adoption of DOE's energy conservation
standards.
IV. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866, 13563 and 14094
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by
E.O. 13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821
(Jan. 21, 2011), and amended by E.O. 14094, ``Modernizing Regulatory
Review,'' 88 FR 21879 (April 11, 2023) requires agencies, to the extent
permitted by law, to (1) propose or adopt a regulation only upon a
reasoned determination that its benefits justify its costs (recognizing
that some benefits and costs are difficult to quantify); (2) tailor
regulations to impose the least burden on society, consistent with
obtaining regulatory objectives, taking into account, among other
things, and to the extent practicable, the costs of cumulative
regulations; (3) select, in choosing among alternative regulatory
approaches, those approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity); (4) to the extent
feasible, specify performance objectives, rather than specifying the
behavior or manner of compliance that regulated entities must adopt;
and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public. DOE
emphasizes as well that E.O. 13563 requires agencies to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible. In its guidance, the
Office of Information and Regulatory Affairs (``OIRA'') within the
Office of Management and Budget (OMB) has emphasized that such
techniques may include identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes. For the reasons stated in the preamble, this
proposed regulatory action is consistent with these principles.
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the
preparation of an initial regulatory flexibility analysis (IRFA) for
any rule that by law must be proposed for public comment, unless the
agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.
As required by E.O. 13272, Proper Consideration of Small Entities in
Agency Rulemaking, 67 FR 53461 (Aug. 16, 2002), DOE published
procedures and policies on February 19, 2003, to ensure that the
potential impacts of its rules on small entities are properly
considered during the rulemaking process. (68 FR 7990). The Department
has made its procedures and policies available on the Office of General
Counsel's website: <a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>.
The proposed rule would establish enforcement procedures for DOE's
manufactured housing energy conservation standards. The proposed
regulations largely outline DOE's procedures for investigating
instances of noncompliance, assessing civil penalties in accordance
with EISA, and associated appeals procedures. DOE expects any costs
borne by manufacturers as a result of the proposed rule to be
negligible. Moreover, the proposed rule would apply equally across
manufacturers and does not place small entities at a significant
competitive disadvantage. Accordingly, DOE certifies that this proposed
rule would not have a significant economic impact on a substantial
number of small entities, and, therefore, no regulatory flexibility
analysis is required. Accordingly, DOE did not prepare an IRFA for this
proposed rulemaking. DOE's certification and supporting statement of
factual basis will be provided to the Chief Counsel for Advocacy of the
Small Business Administration for review under 5 U.S.C. 605(b).
C. Review Under the Paperwork Reduction Act of 1995
The proposed rule would impose no new information or record keeping
requirements. Accordingly, OMB clearance is not required under the
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)
D. Review Under the National Environmental Policy Act of 1969
DOE is analyzing this proposed regulation in accordance with the
National Environmental Policy Act of 1969 (``NEPA'') and DOE's NEPA
implementing regulations (10 CFR part 1021). DOE's regulations include
a categorical exclusion for amending an existing rule or regulation
that does not change the environmental effect of the rule or regulation
being amended. 10 CFR part 1021, subpart D, appendix A5. DOE
anticipates that this rulemaking qualifies for categorical exclusion A5
because it is a rulemaking that is amending an existing rule or
regulation that does not change the environmental effect of the rule or
regulation being amended, and categorical exclusion A6, because it is
procedural. No extraordinary circumstances exist that require further
environmental analysis, and it otherwise meets the requirements for
application of a categorical exclusion. See 10 CFR 1021.410.
Accordingly, neither an environmental assessment nor an environmental
impact statement is required.
E. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999),
imposes certain requirements on 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 E.O. 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
[[Page 88850]]
have federalism implications. On March 14, 2000, DOE published a
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations. (See 65
FR 13735.) DOE examined this proposed rule and determined that it would
not preempt State law and would not have a substantial direct effect on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of Government. No further action is required by E.O.
13132.
F. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of E.O. 12988, ``Civil
Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), 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. Section 3(b) of E.O. 12988
specifically requires that executive agencies make every reasonable
effort to ensure that the regulation: (1) clearly specifies its
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 its retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of E.O. 12988 requires executive agencies to
review regulations in light of applicable standards in section 3(a) and
section 3(b) to determine whether they are met, or it is unreasonable
to meet one or more of them. DOE has completed the required review and
determined that, to the extent permitted by law, the proposed rule
would meet the relevant standards of E.O. 12988.
G. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4) requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and tribal governments and the
private sector. For a proposed regulatory action likely to result in a
rule that may cause the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any one year (adjusted annually for inflation), section 202
of UMRA requires a Federal agency to publish a written statement that
estimates the resulting costs, benefits, and other effects on the
national economy. (2 U.S.C. 1532(a) and (b)). The section of 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 <a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>). This
proposed rule contains neither an intergovernmental mandate nor a
mandate that may result in the expenditure of $100 million or more in
any year by State, local, and tribal governments, in the aggregate, or
by the private sector, so these requirements under the Unfunded
Mandates Reform Act do not apply.
H. Review Under the Treasury and General Government Appropriations Act
of 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any rule that may affect family
well-being. This proposed rule would not have any impact on the
autonomy or integrity of the family as an institution. Accordingly, DOE
has concluded that it is not necessary to prepare a Family Policymaking
Assessment.
I. Review Under Executive Order 12630
DOE has determined, under E.O. 12630, ``Governmental Actions and
Interference with Constitutionally Protected Property Rights,'' 53 FR
8859 (Mar. 18, 1988), that this proposed rule would not result in any
takings which might require compensation under the Fifth Amendment to
the United States Constitution.
J. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for 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 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
DOE has reviewed the proposed rule under the OMB and DOE guidelines and
has concluded that it is consistent with applicable policies in those
guidelines.
K. Review Under Executive Order 13211
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, a Statement of Energy Effects for any proposed 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 E.O.
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 proposed significant energy action, the agency must give a
detailed statement of any adverse effects on energy supply,
distribution, or use should the proposal be implemented, and of
reasonable alternatives to the action and their expected benefits on
energy supply, distribution, and use. This proposed rule establishes
enforcement procedures for DOE's manufactured housing energy
conservation standards and therefore does not meet the second
criterion. Additionally, OIRA has not designated this proposed rule as
a significant energy action. Accordingly, the requirements of E.O.
13211 do not apply.
V. Public Participation
Submission of Comments
DOE will accept comments, data, and information regarding this
proposed rule no later than the date provided in the DATES section at
the beginning of this proposed rule. Interested parties may submit
comments, data, and other information using any of the methods
described in the ADDRESSES section at the beginning of this document.
Submitting comments via <a href="http://www.regulations.gov">www.regulations.gov</a>. The
<a href="http://www.regulations.gov">www.regulations.gov</a> web page will require you to provide your name and
contact information. Your contact information will be viewable to DOE
[[Page 88851]]
Building Technologies staff only. Your contact information will not be
publicly viewable except for your first and last names, organization
name (if any), and submitter representative name (if any). If your
comment is not processed properly because of technical difficulties,
DOE will use this information to contact you. If DOE cannot read your
comment due to technical difficulties and cannot contact you for
clarification, DOE may not be able to consider your comment.
However, your contact information will be publicly viewable if you
include it in the comment itself or in any documents attached to your
comment. Any information that you do not want to be publicly viewable
should not be included in your comment, nor in any document attached to
your comment. Otherwise, persons viewing comments will see only first
and last names, organization names, correspondence containing comments,
and any documents submitted with the comments.
Do not submit to <a href="http://www.regulations.gov">www.regulations.gov</a> information for which
disclosure is restricted by statute, such as trade secrets and
commercial or financial information (hereinafter referred to as
Confidential Business Information (``CBI'')). Comments submitted
through <a href="http://www.regulations.gov">www.regulations.gov</a> cannot be claimed as CBI. Comments received
through the website will waive any CBI claims for the information
submitted. For information on submitting CBI, see the Confidential
Business Information section.
DOE processes submissions made through <a href="http://www.regulations.gov">www.regulations.gov</a> before
posting. Normally, comments will be posted within a few days of being
submitted. However, if large volumes of comments are being processed
simultaneously, your comment may not be viewable for up to several
weeks. Please keep the comment tracking number that <a href="http://www.regulations.gov">www.regulations.gov</a>
provides after you have successfully uploaded your comment.
Submitting comments via email. Comments and documents submitted via
email also will be posted to <a href="http://www.regulations.gov">www.regulations.gov</a>. If you do not want
your personal contact information to be publicly viewable, do not
include it in your comment or any accompanying documents. Instead,
provide your contact information in a cover letter. Include your first
and last names, email address, telephone number, and optional mailing
address. The cover letter will not be publicly viewable as long as it
does not include any comments.
Include contact information each time you submit comments, data,
documents, and other information to DOE. No telefacsimiles (``faxes'')
will be accepted.
Comments, data, and other information submitted to DOE
electronically should be provided in PDF (preferred), Microsoft Word or
Excel, WordPerfect, or text (ASCII) file format. Provide documents that
are not secured, that are written in English, and that are free from
any defects or viruses. Documents should not contain special characters
or any form of encryption and, if possible, carry the electronic
signature of the author.
Campaign form letters. Please submit campaign form letters by the
originating organization in batches of between 50 to 500 form letters
per PDF or as one form letter with a list of supporters' names compiled
into one or more PDFs. This reduces comment processing and posting
time.
Confidential Business Information. Pursuant to 10 CFR 1004.11, any
person submitting information that he or she believes to be
confidential and exempt by law from public disclosure should submit via
email two well-marked copies: one copy of the document marked
``confidential'' including all the information believed to be
confidential, and one copy of the document marked ``non-confidential''
with the information believed to be confidential deleted. DOE will make
its own determination about the confidential status of the information
and treat it according to its determination.
It is DOE's policy that all comments may be included in the public
docket, without change and as received, including any personal
information provided in the comments (except information deemed to be
exempt from public disclosure).
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this notice of
proposed rulemaking.
List of Subjects in 10 CFR Part 460
Administrative practice and procedure, Buildings and facilities,
Energy conservation, Housing standards, Reporting and recordkeeping
requirements.
Signing Authority
This document of the Department of Energy was signed on December 6,
2023, by Samuel Walsh, General Counsel for the Department of 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 December 7, 2023.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE proposes to amend part
460 of chapter II of title 10, Code of Federal Regulations as set forth
below:
PART 460--ENERGY CONSERVATION STANDARDS FOR MANUFACTURED HOMES
0
1. The authority citation for part 460 continues to read as follows:
Authority: 42 U.S.C. 17071; 42 U.S.C. 7101 et seq.
0
2. Add subpart D to part 460 to read as follows:
Subpart D--Enforcement
Sec.
460.300 Purpose and scope.
460.302 Office of the General Counsel Responsibilities.
460.304 Prohibited acts and civil penalties.
460.306 Investigation of compliance.
460.308 Warning letters.
460.310 Notice of noncompliance.
460.312 Notice of proposed Civil Penalty.
460.314 Compromise and settlement.
460.316 Final Notice of Proposed Civil Penalty.
460.318 Order assessing a civil penalty.
460.320 Administrative law judge hearing and appeal.
460.322 Collection of civil penalties.
Sec. 460.300 Purpose and scope.
This subpart describes DOE's investigative and enforcement
procedures for ensuring compliance with the energy conservation
standards set forth in this part.
Sec. 460.302 Office of the General Counsel Responsibilities.
The Department's Office of the General Counsel may:
(a) Assist in investigations, hold settlement conferences, issue
subpoenas, require the production of relevant documents and records,
and take evidence and depositions;
[[Page 88852]]
(b) Initiate civil penalties under 42 U.S.C. 17071 and this subpart
for any alleged violations of this part;
(c) Compromise and assess civil penalties under 42 U.S.C. 17071 and
this subpart for any violations of this part;
(d) Represent DOE in any proceedings or hearings before an
Administrative Law Judge (ALJ) in cases involving alleged violations of
this part; and
(e) Refer cases to the Attorney General of the United States, or
the delegate of the Attorney General, for the collection of civil
penalties.
Sec. 460.304 Prohibited acts and civil penalties.
(a) Each of the following acts is prohibited:
(1) Failure of a manufacturer to provide, maintain, or permit
access to any information, records, or documents required to be
provided to DOE under this part.
(2) Sale, importation, or distribution into commerce in the United
States by a manufacturer of a manufactured home that is not in
compliance with a standard or requirement under this part.
(b) A manufacturer that commits a prohibited act may be subject to
assessment of a civil penalty of no more than one percent of the
manufacturer's retail list price of the manufactured home per
violation.
(c) For violations of Sec. 460.302(a)(1), each day of
noncompliance shall constitute a separate violation. For violations of
Sec. 460.302(a)(2), each failure to comply with a standard or
requirement of this part per unit sold, imported, or introduced into
commerce in the United States shall constitute a separate violation.
(d) Notwithstanding Sec. 460.304(a)(2) of this section, use of the
American Society of Heating, Refrigerating and Air Conditioning
Engineers (ASHRAE) Handbook of Fundamentals as codified in HUD
regulations at 24 CFR 3280.508, in lieu of Air Conditioning Contractors
of America (ACCA) Manual J and ACCA Manual S for the sizing of heating
and cooling equipment as specified in 10 CFR 460.205, shall not be
considered noncompliance.
Sec. 460.306 Investigation of compliance.
(a) For the purposes of this subpart, DOE may request that a
manufacturer provide information and records relevant to determining
compliance with any standard or requirement under this part, including
one or more of the following:
(1) The information and records submitted by a manufacturer to a
Design Approval Primary Inspection Agency (DAPIA) pursuant to 24 CFR
3282.203 and approved by the DAPIA pursuant to 24 CFR 3282.361,
including design deviation reports;
(2) The approved quality assurance manual received from a DAPIA
pursuant to 24 CFR 3282.361, including quality assurance manual
deviation reports;
(3) Records related to a manufacturer's determination of
noncompliance, defect, serious defect, or imminent safety hazard, as
well as any corrections made by the manufacturer, that the manufacturer
is required to maintain under 24 CFR 3282.417; and
(4) Records and reports related to on-site construction of
manufactured homes that the manufacturer is required to maintain
pursuant to 24 CFR 3282.606 and 608.
(b) A manufacturer must maintain the information and records
described in paragraph (a) of this section in accordance with HUD
requirements.
(c) A manufacturer must provide to DOE the information and records
described in paragraph (a) of this section, and any additional
available records DOE determines necessary to determine a
manufacturer's compliance with any standard or requirement under this
part, during an administrative action, investigation, or audit
conducted by DOE against the manufacturer pursuant to this subpart.
Sec. 460.308 Warning letters.
(a) If DOE determines that a violation or an alleged violation of
this part does not require the assessment of a civil penalty, DOE may
dispose of the case by issuing a Warning Letter.
(b) A Warning Letter shall recite the relevant facts and
information about the incident or condition and indicate that it may
have been a violation of this part.
(c) A Warning Letter issued under this section does not constitute
a formal adjudication of the matter and is not subject to appeal under
this subpart.
Sec. 460.310 Notice of noncompliance.
(a) If DOE determines that a manufactured home design or model is
noncompliant with a standard or requirement under this part, DOE may
issue a notice of noncompliance determination to the manufacturer.
(b) A manufacturer that receives a notice of noncompliance
determination from DOE must provide to DOE, within 30 days of the
manufacturer's receipt of the notice of noncompliance determination,
information pertaining to the acquisition, ordering, storage, shipment,
importation, or sale of units of the design or model of manufactured
home determined to be noncompliant.
Sec. 460.312 Notice of proposed Civil Penalty.
(a) Issuance. The DOE General Counsel, or delegee, may initiate a
civil penalty action under this part by serving a Notice of Proposed
Civil Penalty on the manufacturer charged with a prohibited act.
(b) Contents. The Notice of Proposed Civil Penalty shall:
(1) Include a statement of the material facts constituting the
alleged violation;
(2) Include the statute, regulation, standard, and/or requirement
allegedly violated;
(3) Include the amount of the proposed civil penalty; and
(4) Inform the manufacturer of its options in responding to the
Notice of Proposed Civil Penalty.
(c) Response. Not later than 30 days after receipt of the Notice of
Proposed Civil Penalty, the manufacturer must submit to DOE:
(1) A written request that DOE issue an Order assessing the civil
penalty proposed in the Notice of Proposed Civil Penalty without
further notice, in which case the manufacturer waives the right to
request a formal hearing before an ALJ, and payment of the civil
penalty is due within 30 days of the manufacturer's receipt of the
Order;
(2) A written request for a settlement conference, at a date agreed
upon by DOE and the manufacturer, to attempt to settle the matter
informally, in which case the manufacturer also may submit to DOE
written information and other evidence demonstrating that the
manufactured home model is in compliance with the applicable standards
and requirements under this part, that the proposed civil penalty is
not warranted by the circumstances, or that the manufacturer is
financially unable to pay the proposed civil penalty; or
(3) A written request for a formal hearing before an ALJ in
accordance with DOE's Procedures for Administrative Adjudication of
Civil Penalty Actions, available at: <a href="https://www.energy.gov/gc/doe-procedures-administrative-adjudication-civil-penalty-actions">https://www.energy.gov/gc/doe-procedures-administrative-adjudication-civil-penalty-actions</a>.
Sec. 460.314 Compromise and settlement.
(a) DOE may compromise, modify, or remit, with or without
conditions, any civil penalty (with leave of court if necessary).
(b) In exercising its authority under paragraph (a) of this
section, DOE may consider the nature and seriousness of the violation,
the efforts of the manufacturer to remedy the violation in
[[Page 88853]]
a timely manner, and other factors as justice may require.
(c) DOE's authority to compromise, modify, or remit a civil penalty
may be exercised at any time prior to a final decision by a Federal
court of competent jurisdiction.
(d) Notwithstanding paragraph (a) of this section, DOE or the
manufacturer may propose to settle a civil penalty case. If a
settlement is agreed to by the parties, the manufacturer is notified,
and the case is closed in accordance with the terms of the settlement.
Sec. 460.316 Final Notice of Proposed Civil Penalty.
(a) Issuance. DOE may issue a Final Notice of Proposed Civil
Penalty to a manufacturer charged with committing a prohibited act in
the following circumstances:
(1) The manufacturer fails to respond to a Notice of Proposed Civil
Penalty in accordance with Sec. 460.307(c) within 30 days of receipt
of the notice;
(2) The manufacturer requested a settlement conference under Sec.
460.307(c)(2) but failed to attend the conference or provide the DOE
attorney a written request to reschedule the conference; or
(3) DOE and the manufacturer have participated in a settlement
conference but have not agreed to settle the action, and DOE has not
agreed to withdraw the Notice of Proposed Civil Penalty.
(b) Contents. The Final Notice of Proposed Civil Penalty shall
contain a statement of the material facts constituting the alleged
violation; the statute, regulation, standard, and/or requirement
allegedly violated; the amount of the proposed civil penalty; and the
manufacturer's options in responding to the Final Notice of Proposed
Civil Penalty. The Final Notice of Proposed Civil Penalty may reflect a
modified allegation or proposed civil penalty as a result of new
information submitted to DOE after the issuance of the Notice of
Proposed Civil Penalty.
(c) Response. Not later than 15 days after receipt of the Final
Notice of Proposed Civil Penalty, the manufacturer must submit to DOE:
(1) A written request that DOE issue an Order assessing the civil
penalty proposed in the Final Notice of Proposed Civil Penalty without
further notice, in which case the manufacturer waives the right to
request a formal hearing before an ALJ, and payment of the civil
penalty is due within 30 days of the manufacturer's receipt of the
Order; or
(2) A written request for a formal hearing before an ALJ in
accordance with DOE's Procedures for Administrative Adjudication of
Civil Penalty Actions, available at: <a href="https://www.energy.gov/gc/doe-procedures-administrative-adjudication-civil-penalty-actions">https://www.energy.gov/gc/doe-procedures-administrative-adjudication-civil-penalty-actions</a>.
(d) Failure to respond. If a manufacturer fails to respond to a
Final Notice of Proposed Civil Penalty in accordance with this section
within 15 days of the final notice, the manufacturer waives the right
to participate in the informal procedures set forth in this subpart and
the right to request a formal hearing before an ALJ, and DOE shall
issue to the manufacturer an Order finding the violations alleged, and
assessing the civil penalty proposed, in the Final Notice of Proposed
Civil Penalty.
Sec. 460.318 Order assessing a civil penalty.
(a) Issuance pursuant to a settlement. DOE shall issue an Order
assessing a civil penalty if DOE and the manufacturer have agreed to a
civil penalty amount in compromise of a civil penalty case, in which
case the manufacturer waives the right to request a formal hearing
before an ALJ, and payment of the civil penalty is due within 30 days
of the manufacturer's receipt of the Order, unless DOE and the
manufacturer agree to extend the payment deadline.
(b) Issuance pursuant to a manufacturer's request. DOE shall issue
an Order assessing a civil penalty upon receipt of a written request
from a manufacturer that DOE issue an Order assessing the civil penalty
proposed in the Notice of Proposed Civil Penalty or Final Notice of
Proposed Civil Penalty without further notice, in which case the
manufacturer waives the right to request a formal hearing before an
ALJ, and payment of the civil penalty is due within 30 days of the
manufacturer's receipt of the Order.
(c) Issuance pursuant to a manufacturer's failure to respond to a
Final Notice of Proposed Civil Penalty. DOE shall issue an Order
assessing a civil penalty if a manufacturer fails to respond to a Final
Notice of Proposed Civil Penalty within 15 days of receipt of the final
notice, in which case the manufacturer waives the right to request a
formal hearing before an ALJ, and payment of the civil penalty is due
within 30 days of manufacturer's receipt of the Order. In the Order,
DOE shall find the violations alleged, and assess the civil penalty
proposed, in the Final Notice of Proposed Civil Penalty.
(d) Issuance pursuant to an ALJ initial decision. Unless the ALJ's
initial decision is appealed in accordance with DOE's Procedures for
Administrative Adjudication of Civil Penalty Actions, DOE shall issue
an Order assessing a civil penalty if an ALJ finds that a manufacturer
committed a prohibited act and civil penalty is warranted, in which
case payment of the civil penalty is due within 30 days of the
manufacturer's receipt of the Order.
Sec. 460.320 Administrative law judge hearing and appeal.
(a) When elected pursuant to Sec. 460.312(c)(3) or Sec.
460.316(c)(3), DOE shall refer a civil penalty action brought under
this part to an ALJ in accordance with DOE's Procedures for
Administrative Adjudication of Civil Penalty Actions.
(b) After considering all matters of record in the proceeding, the
ALJ will issue an initial decision. The initial decision will include a
statement of the findings and conclusions, and the reasons therefore,
on all material issues of fact, law, and discretion. If the ALJ finds
that a manufacturer committed a prohibited act and that a civil penalty
is warranted, the initial decision will include a civil penalty.
(c) If the initial decision includes a finding that a manufacturer
committed a prohibited act and a recommended civil penalty, and the
initial decision is not appealed in accordance with DOE's Procedures
for Administrative Adjudication of Civil Penalty Actions, the DOE
General Counsel, or delegee, shall issue an Order assessing a civil
penalty. The Order shall include the findings of fact, conclusions of
law, the amount of the civil penalty, and the reasons therefore.
(d) If the initial decision is appealed in accordance with DOE's
Procedures for Administrative Adjudication of Civil Penalty Actions,
then the DOE Decision Maker will issue a final agency decision in
accordance with those procedures. If the DOE Decision Maker upholds an
ALJ initial decision that a manufacturer committed a prohibited act and
that a civil penalty is warranted, the final agency decision and order
shall assess a civil penalty. The manufacturer shall have 60 days from
the date the final agency decision and order is issued to either pay
the civil penalty or appeal the final agency decision and order.
(e) Exhaustion of administrative remedies. Only a final agency
decision, as decided by the DOE Decision Maker, may be appealed to a
Federal court of competent jurisdiction.
Sec. 460.322 Collection of civil penalties.
If any manufacturer fails to pay an assessment of a civil penalty
in accordance with Sec. 460.310, DOE may refer the debt for collection
or may refer
[[Page 88854]]
the case to the Attorney General of the United States, or his or her
delegate, for collection of the civil penalty. In any such action, the
validity and appropriateness of the Order assessing the civil penalty
shall not be subject to review.
[FR Doc. 2023-27182 Filed 12-22-23; 8:45 am]
BILLING CODE 6450-01-P
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</html>Indexed from Federal Register on December 26, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.