Rule2024-06690
Energy Conservation Program: Clarifying Amendments to the Error Correction Rule
Primary source
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Published
April 3, 2024
Effective
April 3, 2024
Issuing agencies
Energy Department
Abstract
The Department of Energy ("DOE" or "the Department") is amending its procedures for providing public input on possible corrections of errors contained in the regulatory text of energy conservation standard final rules. In this final rule, DOE modifies certain aspects of these procedures to clarify and reflect the Department's intent regarding the error correction process that it previously created. The procedures as amended in this final rule do not in any way restrict, limit, diminish, or eliminate the Secretary's discretion to determine whether to establish or amend an energy conservation standard, or to determine the appropriate level at which to amend or establish any energy conservation standard.
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<title>Federal Register, Volume 89 Issue 65 (Wednesday, April 3, 2024)</title>
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[Federal Register Volume 89, Number 65 (Wednesday, April 3, 2024)]
[Rules and Regulations]
[Pages 22914-22925]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-06690]
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DEPARTMENT OF ENERGY
10 CFR Part 430
[EERE-2020-BT-STD-0015]
RIN 1904-AE87
Energy Conservation Program: Clarifying Amendments to the Error
Correction Rule
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (``DOE'' or ``the Department'') is
amending its procedures for providing public input on possible
corrections of errors contained in the regulatory text of energy
conservation standard final rules. In this final rule, DOE modifies
certain aspects of these procedures to clarify and reflect the
Department's intent regarding the error correction process that it
previously created. The procedures as amended in this final rule do not
in any way restrict, limit, diminish, or eliminate the Secretary's
discretion to determine whether to establish or amend an energy
conservation standard, or to determine the appropriate level at which
to amend or establish any energy conservation standard.
DATES: The effective date of this rule is April 3, 2024.
ADDRESSES: The docket for this rulemaking, which includes Federal
Register notices, comments, and other supporting documents/materials,
is available for review at <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, some
documents listed in the index, such as those containing information
that is exempt from public disclosure, may not be publicly available.
The docket web page can be found at <a href="http://www.regulations.gov/docket?D=EERE-2020-BT-STD-0015">www.regulations.gov/docket?D=EERE-2020-BT-STD-0015</a>. The docket web page explains how to access all
documents, including public comments, in the docket.
FOR FURTHER INFORMATION CONTACT:
Mr. Lucas Adin, U.S. Department of Energy, Office of Energy
Efficiency and Renewable Energy, Building Technologies Program, EE-5B,
1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone:
(202) 287-5904 or <a href="/cdn-cgi/l/email-protection#baf6cfd9dbc994fbded3d4fadfdf94ded5df94ddd5cc"><span class="__cf_email__" data-cfemail="b7fbc2d4d6c499f6d3ded9f7d2d299d3d8d299d0d8c1">[email protected]</span></a>.
Ms. Melanie Lampton, U.S. Department of Energy, Office of the
General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC
20585-0121. Telephone: (240) 751-5157. Email:
<a href="/cdn-cgi/l/email-protection#28654d444946414d06644945585c4746684059064c474d064f475e"><span class="__cf_email__" data-cfemail="4b062e272a25222e65072a263b3f24250b233a652f242e652c243d">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Summary of Final Rule
II. General Discussion
A. General Comments
B. Comments Concerning EPCA's Anti-Backsliding Provision
C. Other Comments
[[Page 22915]]
D. Section-by-Section Analysis of Comments
III. Procedural Issues and Regulatory Review
A. Administrative Procedure Act
B. Review Under Executive Orders 12866, 13563, and 14094
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act of 1969
F. Review Under Executive Order 13132
G. Review Under Executive Order 12988
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under the Treasury and General Government
Appropriations Act, 1999
J. Review Under Executive Order 12630
K. Review Under the Treasury and General Government
Appropriations Act, 2001
L. Review Under Executive Order 13211
M. Congressional Notification
IV. Approval of Office of the Secretary
I. Summary of Final Rule
This procedural rule amends DOE's procedures for providing the
public with an opportunity to request the correction of a possible
error identified in the regulatory text of a final rule that would
establish new or amended energy conservation standards prior to the
rule's publication in the Federal Register.\1\ See 10 CFR 430.5. On
October 9, 2020, DOE issued a notice of proposed rulemaking (``NOPR''),
proposing various amendments to 10 CFR 430.5.\2\ 85 FR 64071. This
final rule adopts some of the NOPR proposals. Specifically, the
amendments contained within this final rule clarify that the Secretary
was not, and is not, under a mandatory duty to post final energy
conservation standard rules online for error-correction purposes, but
to do so was, and is, a discretionary and voluntary act.
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\1\ DOE typically posts pre-publication versions energy
conservation test procedures and standards rulemaking documents on a
publicly accessible website. However, the posting of those
rulemaking documents is separate from the error correction process
outlined in 10 CFR 430.5.
\2\ Although DOE took notice and comment on the NOPR, agency
rules of procedure and practice, such as the one described in this
document, are not subject to the requirement to provide prior notice
and an opportunity for public comment pursuant to authority at 5
U.S.C. 553(b)(A). See section III of this document for additional
discussion.
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When DOE elects to post online an energy conservation standard
final rule prior to its submission and publication in the Federal
Register--or what is referred to as the pre-publication final rule for
the purposes of this final rule discussion--DOE shall follow the
procedures set forth in the error correction process found in 10 CFR
430.5. Additionally, this final rule amends language in 10 CFR 430.5 to
clarify that, if DOE posts a rule for error-correction purposes, DOE
will continue to strive to provide a 45-day review period for error
correction, but it is within DOE's discretion to provide a shorter or
longer period.
As for other amendments proposed in the NOPR, DOE is retaining
certain of the current regulatory requirements in 10 CFR 430.5.
Specifically, DOE is retaining the current definitions, as well as the
requirement for DOE to submit for publication in the Federal Register a
pre-publication final rule that has been posted in accordance with the
error correction process. See 10 CFR 430.5(b) and (f). DOE is also
retaining the language in 10 CFR 430.5(a), except to clarify that the
error correction process is an optional and voluntary process.
Furthermore, DOE is retaining the current requirements in 10 CFR
430.5(g) and (h).
The adopted amendments are summarized in Table I.1 and compared to
the proposed amendments, as well as the requirements prior to the
amendments.
Table I.1--List of Revisions in This Document
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Proposed revisions from the
Section Current DOE requirement October 2020 NOPR Amended requirements
----------------------------------------------------------------------------------------------------------------
Sec. 430.5(a) Scope and purpose. Describes the Rename section and separate Retain current
procedures through into two subsections; and regulatory language
which DOE will clarify there is no found in Sec.
consider submissions affirmative obligation on 430.5(a), except for
regarding potential the Secretary to provide adding ``optional''
Errors for those the public with an before ``procedure''
rulemakings opportunity for error and ``may'' before
establishing or correction review. ``accept and
amending energy consider'' to clarify
conservation standards the error correction
under EPCA. process is a
procedure that may be
voluntarily
implemented by the
Secretary.
Sec. 430.5(b) Definitions....... Defines ``Act,'' Revise definition of Retain current
``Error,'' ``Rule,'' ``Error'' and replace the definitions found in
and ``Secretary''. term ``Rule'' with the Sec. 430.5(b).
term ``Pre-publication
draft''.
Sec. 430.5(c) Posting of rules.. Describes the beginning Revise section title; Adopt the proposal to
of the error clarify that the posting clarify that the
correction process. of a pre-publication final posting of a pre-
rule for error correction publication final
review is within the rule for error
Secretary's discretion and correction review is
if posted, it would be within the
available for a period of Secretary's
45 days, but the review discretion in Sec.
period may be shortened or 430.5(c)(1) and if
lengthened at the posted, it would be
Secretary's discretion; available for a
remove any implication period of 45 days,
that the Secretary will but the review period
publish a rule that has may be shortened or
undergone error correction lengthened at the
review; and revise the Secretary's
disclaimer notice language discretion in Sec.
to be consistent with 430.5(c)(2). Retain
other proposed amendments. current disclaimer
notice text in Sec.
430.5(c)(3).
Sec. 430.5(d) Request for Explains how to submit Update to include the term Adopt proposed
Correction. a request to DOE to ``Pre-publication draft;'' amendments to Sec.
correct an Error and clarify that the Secretary 430.5(d), with the
describes what a is not obligated to take exception of
request must contain. action on an error replacing ``pre-
correction request; and publication draft''
clarify that the ECR would with ``rule.''
be limited to identifying
Errors in the regulatory
text of a pre-publication
final rule.
Sec. 430.5(e) Correction of Describes the courses Revise to impose no Retain current
rules. of action DOE may requirement for regulatory language
undertake if it publication in the Federal in Sec. 430.5(e).
believes an identified Register upon completion
error needs to be of the error correction
corrected. process and to clarify
DOE's authority to
determine the appropriate
remedy for an identified
error.
Sec. 430.5(f) Publication in the Describes how DOE will Revise to prevent the Retain current
Federal Register. eventually publish a inference that publication regulatory language
final rule in the in the Federal Register is in Sec. 430.5(f),
Federal Register. the only outcome available with the exception of
at the conclusion of the two clarifying
error correction process. amendments and two
minor non-substantive
edits.
Sec. 430.5(g) Alteration of Explains that DOE may Remove as unnecessary in Retain current
standards. change a standard that light of amendments regulatory language
has been posted but proposed for the remaining in Sec. 430.5(g).
not yet published in sections of 10 CFR 430.5.
the Federal Register.
[[Page 22916]]
Sec. 430.5(h) Judicial review... Explains the timing Renumbered to Sec. Retain current
related to a potential 430.5(g) and included new regulatory language
petition for review text to reaffirm that pre- in Sec. 430.5(h).
that may be filed publication final rules
pursuant to 42 U.S.C. are not final rules or
6306. prescribed rules within
the meaning of EPCA.
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While this final rule contains amendments to the error correction
process--the process will be applied to identify errors in pre-
publication final rules that might be difficult to remedy due to EPCA's
anti-backsliding provision (42 U.S.C. 6295(o)(1))--these modifications
do not impair DOE's ability to meet its statutorily prescribed
deadlines for either establishing or amending energy conservation
standards. Instead, these modifications focus solely on DOE's intent to
allow the public to identify possible technical and objective errors in
certain pre-publication final rules. DOE will use the error correction
process only to seek input on the narrow question of whether an error
has occurred in the regulatory text of a pre-publication final rule
document.
The remainder of this final rule discusses comments received in
response to the NOPR, as well as DOE's responses and the amendments
adopted in this final rule.
II. General Discussion
The NOPR included a summary detailing how DOE intended to amend
specific sections of the ECR to better align with the rule's intended
purpose. DOE received seven comments in response to the NOPR (see Table
II.1) voicing various levels of support and opposition.
Table II.1--List of Commenters With Written Submissions in Response to the NOPR, 85 FR 64071
----------------------------------------------------------------------------------------------------------------
Comment No. in
Commenter(s) Abbreviation the docket Commenter type
----------------------------------------------------------------------------------------------------------------
A. O. Smith Corporation..... A.O. Smith....................... 8 Manufacturer.
Air-Conditioning, Heating, Joint Industry Commenters........ 3 Manufacturers.
and Refrigeration
Institute, the Association
of Home Appliance
Manufacturers, and the
National Electrical
Manufacturers Association.
American Public Gas APGA/Spire....................... 5 Utility Associations.
Association and Spire Inc.
GE Appliances............... GEA.............................. 7 Manufacturer.
Joseph Richardson........... Richardson....................... 2 Individual.
Lennox International Inc.... Lennox........................... 4 Manufacturer.
Natural Resources Defense NRDC/ASAP........................ 6 Energy Efficiency Advocates.
Council and Appliance
Standards Awareness Project.
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A parenthetical reference at the end of a comment quotation or
paraphrase provides the location of the item in the public record.\3\
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\3\ The parenthetical reference provides a reference for
information located in the docket of DOE's rulemaking for amending
the error correction process. (Docket No. EERE-2017-BT-STD-0015,
which is maintained at <a href="http://www.regulations.gov/#!docketDetail">www.regulations.gov/#!docketDetail</a>;D=EERE-
2017-BT-STD-0015). The references are arranged as follows:
(commenter name, comment docket ID number, page of that document).
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A. General Comments
Commenters generally expressed support of DOE's proposal to clarify
the application of the error correction process, but they also harbored
reservations regarding certain aspects of DOE's proposals. For example,
APGA/Spire supported the Department's proposed amendments to clarify
that the rule does not establish a non-discretionary duty to publish
pre-publication final rules in the Federal Register after undergoing
error correction review. (APGA/Spire, No. 05, at p. 2) However, those
commenters disagreed with the proposal's attempt to clarify the extent
of DOE's discretion with respect to the posting of documents for
review. (APGA/Spire, No. 05, at p. 2) Similarly, the Joint Industry
Commenters, while supportive of DOE's efforts to better reflect the
Department's intent behind the rule, noted their collective concerns
that the proposal would curtail DOE's ability to cure errors and limit
public certainty regarding the error correction process. (Joint
Industry Commenters, No. 03, at p. 1) These commenters stated that the
ECR does not impose non-discretionary mandates superseding DOE's
inherent discretion to make policy determinations but, in their view,
the ECR is separate from DOE's policy discretion and the proposal's
attempt at clarifying its discretion instead created uncertainty.
(Joint Industry Commenters, No. 03, at pp. 1-2)
Lennox agreed with the NOPR's proposed amendment to clarify that
the ECR does not create a nondiscretionary duty to publish pre-
publication final rules at the end of the review process. (Lennox, No.
4 at p. 5 (referencing 85 FR 64072)) But Lennox asserted that the
entire error correction process should not be made voluntary. (Lennox,
No. 4 at p. 5) GEA supported the comments submitted by the Joint
Industry Commenters and added that a rule containing an error making a
material difference to that rule should be corrected and that having a
consistent, transparent, and predictable error correction process would
benefit all parties. (GEA, No. 7 at p. 2)
A.O. Smith supported the idea of narrowly tailoring the error
correction process to correct clerical errors without reopening
portions of the rulemaking process, but it expressed it opposition to
the proposed amendments contained within the NOPR and questioned the
legality of the rulemaking in light of the Ninth Circuit's opinion.\4\
(A.O. Smith, No. 08 at p. 1)
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\4\ See Natural Resources Defense Council v. Perry,940 F.3d 1072
(9th Cir. 2019).
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Separately, one individual commenter supported the rule in its
entirety and explained that the proposal offered a good way for the
Department to ``remain as transparent as possible with the public'' and
maintain a relationship that allowed for public involvement in the
rulemaking process. This commenter supported the existence of a method
to correct and amend documents to more
[[Page 22917]]
accurately report data relevant to DOE activities and projects.
(Richardson, No. 02 at p. 1)
In the NOPR, DOE clarified that the Secretary was not, and is not,
under a mandatory duty to post pre-publication final rules online, but
to do so was, and is, a discretionary and voluntary act. DOE is not
compelled by statute to offer such a procedural step. Therefore, DOE
proposed amending 10 CFR 430.5(c) to account for the Secretary's
discretion to post energy conservation standard final rules for error
correction review. 85 FR 64071, 64073. As discussed further in the
Section-by-Section Analysis, DOE is adopting this proposal to amend 10
CFR 430.5(c) in this final rule.
Furthermore, DOE initially proposed to clarify that the ECR does
not create a non-discretionary duty to publish in the Federal Register
a pre-publication final rule that has been posted in accordance with
the error correction process. 85 FR 64071, 64074. However, DOE has
determined it will retain the language currently found in 10 CFR
430.5(f). DOE notes that while the ECR provides a means by which
interested parties may notify DOE of potential errors found in the
regulatory text of a pre-publication final rule document that has been
posted for public viewing, it is not a means for raising issues
relating to the determinations and conclusions made by the Secretary in
an energy conservation standard rulemaking. The posting of an energy
conservation standards final rule signals the end of DOE's substantive
analysis and decision-making regarding the applicable standards.
Therefore, upon conclusion of the error correction process, DOE will
submit a final rule, correcting any identified errors, to the Federal
Register for publication in accordance with the requirements in 10 CFR
430.5(f). DOE's decision not to amend 10 CFR 430.5(f) at this time also
recognizes the narrow scope and purpose of the error correction
process, which DOE notes is separate from the Department's policy-
making discretion.
B. Comments Concerning EPCA's Anti-Backsliding Provision
Some commenters asserted that the NOPR mistakenly relied on EPCA's
anti-backsliding provision, 42 U.S.C. 6295(o)(1), to justify the
amendments proposed. The Joint Industry Commenters argued that DOE
fundamentally misunderstands the anti-backsliding rule, which causes
the premise behind the error correction process to be faulty. If there
is an error in the analysis provided for an energy conservation
standard, these commenters argue that the standard is not justified
under EPCA's required economic and technical justifications. In their
view, this would mean that the anti-backsliding provision cannot
legally be used to maintain the standard. (Joint Industry Commenters,
No. 03 at p. 6) They urged DOE to determine that it is authorized to
correct errors in its analysis at any point if the errors lead to an
energy conservation standard that is not justified under EPCA. While
this would ultimately make the error correction process unnecessary, it
would result, according to the commenters, in a better reading of
EPCA--i.e., that the anti-backsliding provision does not limit DOE from
correcting standards that were not actually justified in the first
place. (Joint Industry Commenters, No. 03 at pp. 6-7) GEA also noted
that EPCA's anti-backsliding provision does not prevent error
correction and that any concern regarding a reduction in efficiency
requirements through error correction is outweighed by the importance
of maintaining the overall integrity of the energy conservation
program. (GEA, No. 07 at p. 2)
Under EPCA, DOE may not prescribe any amended standard that either
(1) increases the maximum allowable energy use (or water use in the
case of certain types of water products and equipment) or (2) decreases
the minimum require energy efficiency of a covered product or covered
equipment. (42 U.S.C. 6295(o)(1)) Although DOE agrees with commenters
that retaining flexibility to correct any errors is important for
integrity of the energy conservation program, industry commenters'
reading of EPCA's anti-backsliding provision is inconsistent with
Abraham's reading of that provision. See NRDC v. Abraham, 355 F.3d 179,
196 (2d Cir. 2004) (noting that ``publication [of an energy
conservation standard] must be read as the triggering event for the
operation of section 325(o)(1).''). In light of Abraham, proceeding in
the manner suggested by these commenters presents the risk that a
reviewing court would invalidate an attempt by DOE to correct an error
after publication of a final rule if the result of that correction was
a standard with a greater maximum allowable energy use or decreased
required energy efficiency as compared to the final rule that contained
the error. Regardless of the reading that should be ascribed to the
anti-backsliding provision, DOE concludes that the adoption of the ECR
process (as revised by this rule) will be helpful in minimizing the
risk that DOE may inadvertently adopt a final rule containing an
objective error.
Further, DOE's efforts to address errors as part of the ECR's
process are necessarily limited to addressing errors that affect the
amended standards' regulatory text prior to the publication of a final
rule amending the energy conservation standards for a covered product
or covered equipment. To the extent that an error appears outside of
the posted regulatory text of a draft pre-publication document, such as
in a supporting rulemaking document it authored (e.g., technical
support document), DOE may, under its own discretion, make corrections
to those documents, but these types of issues will be handled on an
individual basis as appropriate outside of the ECR process.
C. Other Comments
DOE also received comments on other topics. NRDC/ASAP noted that
nothing in the proposal conferred to DOE the authority to delay a rule
or impact a standard the Department must select other than by providing
an opportunity for DOE to correct any inadvertent mistakes. They
suggested DOE add language to the ECR to explicitly state that the rule
does not disturb or modify any of DOE's statutory obligations. (NRDC/
ASAP, No. 06 at p. 1) They further suggested that DOE clarify in the
final rule regarding the timeline and general procedures for error
correction, including specifying when a rule would be made available
for review, the duration of the review period, and whether the
Department envisioned initiating a second error correction process for
a pre-publication draft document. (NRDC/ASAP, No. 06 at p. 2)
A.O. Smith claimed that the proposal would have significant impacts
on manufacturers because it would allow for the rulemaking process to
be ``reopened in perpetuity'' by not limiting the Secretary's
authority, would allow for the introduction of new data, additional
analyses, and would create the potential for a revised final decision
to result if an error is identified. (A.O. Smith, No. 08 at p. 2)
Alternatively, A.O. Smith supported the original 2016 ECR, which
ensured any request ``must identify the claimed error, explain how the
record demonstrates the regulatory text to be erroneous, and state what
the corrected version should be.'' (A.O. Smith, No. 08 at p. 2)
The ECR does not permit DOE to ignore EPCA's statutory deadlines or
other applicable deadlines when finalizing a rulemaking action, and it
is within DOE's authority to re-evaluate the document within the
applicable deadline for that rulemaking. Nothing in the ECR authorizes
DOE to circumvent
[[Page 22918]]
statutory or other applicable deadlines. Additionally, when an energy
conservation standards final rule is posted for error correction
review, its posting signals the end of DOE's substantive analysis and
decision-making regarding the applicable standards, thus eliminating
any concern that the rulemaking would be reopened in perpetuity.
Accordingly, the ECR remains limited to identifying errors relating to
the standards regulatory text in a pre-publication draft.
D. Section-by-Section Analysis of Comments
Section 430.5(a)
In the NOPR, DOE proposed to amend 10 CFR 430.5(a) by renaming the
section and separating the section into two separate subsections that
address the purpose and scope of the regulations in this section. The
proposed subsections described (1) the procedures through which the
Department may accept and consider public input for review of a pre-
publication final rule document's regulatory text, and (2) the scope of
the procedure that would be available. 85 FR 64071, 64072-64073.
DOE received comments opposing its proposal to clarify that the
error correction process was strictly a voluntary activity on the part
of the Department and did not create a legal obligation to offer the
public an additional review period for energy conservation standards
beyond that which is already provided under EPCA and other applicable
provisions of the Administrative Procedure Act.
The Joint Industry Commenters disagreed with this aspect of the
proposal. They argued that the ECR's review process should not be a
discretionary activity and must provide stakeholders with a process to
ensure no errors in the analysis exist before publishing a rule that
would create an unjustified standard. (Joint Industry Commenters, No.
03 at p. 2) APGA/Spire similarly suggested that DOE strike the word
``voluntary'' from Sec. 430.5(a)(1) as proposed because there are no
mandatory submissions for the public at large, making it redundant to
characterize such submissions as ``voluntary.'' (APGA/Spire, No. 05 at
p. 2) GEA asserted that the proposal lacked justification for leaving
the implementation of the ECR review process solely to DOE's
discretion. (GEA, No. 07 at p. 2) Lennox opposed characterizing the ECR
review as voluntary because it would limit the rule and undermine the
critical protections provided to industry and stakeholders from
inaccurate rules being made final. (Lennox, No. 04 at p. 4, 1) In its
view, the ECR should be mandatory for all energy conservation standards
as it would help avoid litigation costs resulting from efforts to
correct erroneous rules. Lennox added that requiring all energy
conservation standard rulemakings to undergo the error correction
process would enable DOE to avoid errors that would disrupt the supply
chain and avoid the risk of consumers being harmed through mislabeled
equipment. (Lennox, No. 04 at p. 2) In addition to there being a clear
need for error correction review to ensure that all energy conservation
standards are technologically feasible and economically justified under
42 U.S.C. 6295(o)(2), Lennox argued that making the error correction
process voluntary would destroy public confidence in that process.
(Lennox, No. 04 at pp. 3-4)
GEA challenged DOE's decision to limit the scope of the error
correction process to final rules and argued DOE should determine that
it is authorized to correct errors in its analysis at any time if the
error would result in a standard not justified under EPCA. GEA
suggested that DOE make the error correction process mandatory for all
energy conservation standard rulemakings. In its view, doing so would
provide consistency, transparency, and predictability to the rulemaking
process, which decreases uncertainty and the regulatory burden. (GEA,
No. 07 at p. 2)
NRDC/ASAP supported DOE's proposal to make the review process
discretionary and asserted that some circumstances may require waiving
the normal process, making a shorter review period or no review period
justified. They encouraged DOE to include in the final rule a
clarification that some products may warrant shorter review periods.
(NRDC/ASAP, No. 06 at 2)
DOE's proposal also noted that it would continue to exclude energy
conservation standards set through the issuance of a direct final rule
pursuant to section 325(p)(4) of EPCA (42 U.S.C. 6295(p)(4)). 85 FR
64071, 64073. The Joint Industry Commenters and Lennox supported this
approach because, in their view, EPCA (through section 325(p)(4))
already provided the necessary opportunity for review and comment prior
to the finalization of such rules. (Joint Industry Commenters, No. 03
at p. 2; and Lennox, No. 04 at p. 4)
EPCA mandates certain procedures that DOE must follow in its
rulemakings. See 42 U.S.C. 6295(p). Beyond the procedures mandated in
EPCA, the Secretary is under no statutory obligation to provide the
public with an additional opportunity to submit error correction
requests on any document. DOE has considered the approach of turning
this process into a mandatory one for all energy conservation standard
rulemakings, as suggested by these commenters, but notes that doing so
would be both impractical and unnecessary. DOE notes that the public
has many opportunities to review and provide input on EPCA rulemakings
already during the robust rulemaking process as provided by EPCA and
other applicable provisions of the Administrative Procedure Act.
Additionally, DOE recognizes that situations may arise, such as
complying with a judicial decree, that would necessitate shortening or
waiving of the error correction process. DOE reminds commenters that
opening an energy conservation standard rulemaking to error correction
review is only to confirm that no errors exist in the regulatory text
prior to anticipated publication; it is not intended for parties to
argue the findings and conclusions of the rulemaking. The voluntary
nature of the ECR provides the Secretary the flexibility to subject
specific rulemakings to one last review and not unnecessarily elongate
the rulemaking process for energy conservation standard rulemakings.
DOE's proposal to amend 10 CFR 430.5(a) was intended to describe an
error correction process that is an optional and voluntary,
specifically on the part of DOE. However, given DOE's decision in this
final rule to retain the current regulatory requirements found in 10
CFR 430.5(f), which prescribe the steps DOE will take to publish a
final rule upon conclusion of the error correction process, DOE no
longer believes it is necessary at this time to extensively revise the
text in 10 CFR 430.5(a), except to clarify DOE is under no legal
obligation to offer the public this additional error correction process
from the outset. Accordingly, DOE is retaining the current regulatory
provisions contained in 10 CFR 430.5(a), with the exception of adding
the term ``optional'' before ``procedure'' and ``may'' before ``accept
and consider'' to clarify it is within the Secretary's discretion to
allow for an error correction review of a final energy conservation
standard rule.
Section 430.5(b)
DOE proposed amending the definition of ``Error'' found in 10 CFR
430.5(b) to more narrowly define it as meaning an objective mistake in
the regulatory text of a pre-publication final rule document that may
result in the
[[Page 22919]]
establishment or amendment of an energy conservation standard. DOE also
proposed replacing the term ``Rule'' with the term ``Pre-publication
draft.'' 85 FR 64071, 64077.
The Joint Industry Commenters opposed narrowing the definition of
``Error'' and argued that substantial errors can occur outside of the
regulatory text and its erroneous results will not be explicit or
disclosed in the regulatory text. They argued that the review should be
extended to include errors that may exist in the Technical Support
Document as well as the preamble to a final rule as these errors could
also result in arbitrary and capricious standards. (Joint Industry
Commenters, No. 03 at pp. 2-3)
It is DOE's current practice to post a pre-publication copy of a
rulemaking document online, prior to the rule's publication in the
Federal Register, for the public to access. This action is separate and
distinct from the error correction process. Given that DOE uses the
term ``pre-publication'' when posting and disseminating these
documents, DOE believes it may create potential confusion for DOE to
adopt the proposed definition for ``pre-publication draft'' in this
final rule. Additionally, the use of the term ``draft'' may also
suggest that the final rule document is open to further deliberations
and policy considerations. Accordingly, DOE is not adopting its
proposal to amend 10 CFR 430.5(b), and is retaining the current
definitions found in 10 CFR 430.5(b) in this final rule.
However, DOE's decision to not amend 10 CFR 430.5(b) does not
diminish the intent of the ECR, which is to minimize the potential risk
of finalizing and publishing the regulatory text of an energy
conservation standard with an apparent error that establishes a level
that was not intended by DOE. With the utilization of the ECR, DOE is
seeking to avoid the need for any subsequent rulemaking, correcting
that error, that might violate the anti-backsliding provision of 42
U.S.C. 6295(o)(1). Therefore, by addressing concerns with the draft
regulatory text of an energy conservation standard before that text is
finalized, DOE can significantly reduce the risk of litigation over an
unintended error. This same difficulty does not exist for an error
identified in the preamble text or Technical Support Document published
in support of an energy conservation standard. For that, DOE can issue
a correction to remedy such a mistake. And in the event an error
appears in a Technical Support Document for a given rule, if DOE agrees
that error impacts the resulting standard that DOE intended to adopt
(as reflected in a posted draft document), then DOE retains the
authority to make the appropriate correction in that posted draft
document.
Section 430.5(c)
The NOPR proposed revising 10 CFR 430.5(c) to clarify that the
Secretary was not, and is not, under a mandatory duty to post pre-
publication final rules online for error correction review, but to do
so was, and is, a discretionary and voluntary act. If the Secretary
chooses to post a final rule online for error correction review, the
document would be available for 45 days, but the Secretary in his or
her discretion may shorten or lengthen that time period. DOE also
proposed revising 10 CFR 430.5(c) to clarify that the ECR does not
impose a deadline by which the Secretary must determine whether to
establish or amend an energy conservation standard, or when the
Secretary must submit a final rule for publication in the Federal
Register. DOE further proposed revising the text in the disclaimer
notice, which is posted along with a final rule made available for
error correction review, to explain that the Department may conduct
additional review of the regulatory test prior to finalizing a
potential energy conservation standard to ensure that the text is
consistent with the Secretary's intent and with data and analysis
available at the time of posting. 85 FR 64071, 64073.
APGA/Spire objected to this aspect of the proposal, arguing that
every final rule should be posted routinely since DOE would have
complete discretion on what to do with any comment received under
paragraph (e). (APGA/Spire, No. 05 at p. 2) The Joint Industry
Commenters objected to the proposal's failure to obligate DOE to post
pre-publication draft final energy conservation standard rules. In
their view, it is critical that the public be given the opportunity to
review these types of documents for errors that could result in a
standard that is not, in fact, technically or economically justified.
(Joint Industry Commenters, No. 03 at p. 3) They added that the
Secretary should not retain the discretion to determine whether to post
pre-publication drafts because any rulemaking that may impact an energy
conservation standard should be subject to error correction review.
(Joint Industry Commenters, No. 03 at p. 4) These commenters also
supported posting a pre-publication draft for the proposed continuation
of the 45-day review period, but disagreed with the proposal's
inclusion to provide the Secretary the discretion to adjust the length
of the review period. They suggested there should be a set period of
time that the rule is posted and the Secretary may extend that time
period if needed, but that this time period cannot be limited to less
than the 45-day window on a whim. (Joint Industry Commenters, No. 03 at
p. 3)
Lennox also objected to a shortening of the 45-day review period
because energy conservation standard rulemakings are complex and that
modifying the ECR to permit a shorter review period would ``gut'' the
ECR process by allowing the Secretary to unilaterally provide
inadequate time for a meaningful review. (Lennox, No. 04 at p. 4) Other
commenters suggested that DOE include a firm minimum time limit for
error correction requests to be considered, such as 30 days. (NRDC, et
al., No. 06 at p. 1)
Furthermore, Joint Industry Commenters and Lennox were supportive
of DOE's proposal to retain discretion on whether a pre-publication
draft that has undergone error correction review is submitted for
publication as a final rule. (Joint Industry Commenters, No. 03 at p.
4; Lennox, No. 04, at p. 1) The Joint Industry Commenters agreed with
DOE's clarification to remove any inference of an implied timeline for
the Secretary's decision to publish a potential rule that was subject
to the error correction process and that the Secretary should retain
discretion to determine the degree to which the document may or may not
be amended. (Joint Industry Commenters, No. 03 at p. 4) These
commenters agreed with DOE that the error correction process should not
obligate the Secretary to publish a document simply because that
document has completed the error correction process. They asserted that
DOE has broad authority to execute its statutory obligations and that
the ECR's scope is limited only to the opportunity for stakeholders to
comment on errors and DOE's obligation to consider those comments.
(Joint Industry Commenters, No. 03 at p. 4)
The Joint Industry Commenters also supported DOE's proposed
revision to the disclaimer in Sec. 430.5(c)(3) that DOE may conduct
additional review of the regulatory text prior to finalizing a standard
to ensure that the text itself is consistent with the Secretary's
intent and relevant data and analysis available at the time of posting.
They also supported DOE's proposed revision emphasizing that it is
``within the 'Secretary's discretion to determine the appropriate
remedy'' for an error identified during the error correction process.
(Joint Industry Commenters, No. 03 at p. 4)
[[Page 22920]]
As previously noted, EPCA already specifies the procedures DOE is
mandated to follow in an energy conservation standard rulemaking. The
error correction process is an extra step that DOE is choosing to adopt
as a tool to help DOE avoid promulgating a final energy conservation
standard rule with an apparent error. It is DOE's judgment that not all
energy conservation standard rulemakings will need to undergo a 45-day
review period. For example, there may be instances where an
unanticipated legal obligation may arise, or a statutory deadline may
be approaching, that may necessitate a modification to a 45-day review
period. While DOE will continue to strive to provide a 45-day review
period, retaining flexibility to account for case-by-case circumstances
would enable DOE to continue offering the public this additional review
opportunity while accounting for those circumstances where a 45-day
review period is not warranted or feasible. Upon posting of a pre-
publication draft, the public will be notified of the length of the
review period for that specific energy conservation standard final
rule.
Moreover, posting a pre-publication final rule for review under
this process is an additional step in the already comprehensive review
process the Department follows when developing a standard in accordance
with EPCA's requirements. Providing this step--which itself is a
discretionary act by DOE--offers the public with a final opportunity,
not required under EPCA, to help DOE in verifying that no errors in the
regulatory text went unnoticed and unaddressed. Although DOE
anticipates that this step would be routinely provided, it may not be
necessary to do so for every energy conservation standard rulemaking
and requiring it in those instances where it would be unnecessary or
impractical to do so would unnecessarily restrict DOE's flexibility to
carry out its statutory obligations under EPCA or other legal
obligations in an efficient manner. Rigidly applying a mandatory
minimum review period requirement not only ignores the potential for
conflicts with preexisting statutory deadlines but also assumes that
all energy conservation standard rulemakings are the same. Not every
energy conservation standard rulemaking will require this additional
review period and to mandate one may unnecessarily lengthen the
rulemaking process.
With these considerations in mind, DOE is adopting its proposal to
amend 10 CFR 430.5(c) to clarify that the Secretary was not, and is
not, under a mandatory duty to post pre-publication final rules online
for error correction review, but to do so was, and is, a discretionary
and voluntary act. DOE is also adopting its proposal to amend 10 CFR
430.5(c) to note that it will ordinarily post the pre-publication final
rule online for a period of 45 calendar days, but noting that the
period for review may be shortened or lengthened to best serve the
needs of that rulemaking in accordance with DOE's statutory or other
legal obligations.
While DOE is adopting the aforementioned proposals in this final
rule, DOE is not adopting the remaining revisions proposed in the NOPR
for 10 CFR 430.5(c)(2). Those revisions concerned the submittal of
rules for publication and DOE's authority to amend standards prior to
publication. DOE's decision to not adopt those proposed revisions is
due to repetitive nature of some of the language, as well as the
decision to retain the current requirements in 10 CFR 430.5(f) and (g).
Section 430.5(c) as adopted in this final rule already expresses that
the Secretary is not obligated to post pre-publication final rules on a
publicly accessible website for public review. Adopting the proposed
revision that it would be in the Secretary's discretion both before and
after posting of a pre-publication final rule to determine whether to
establish or amend an energy conservation standard would conflict with
DOE's decision to retain the current requirements in 10 CFR 430.5(f)
and (g). Therefore, to maintain the current numbering in 10 CFR
430.5(c), DOE has made slight clarifying amendments to revise and
renumber the proposed regulatory text that DOE is adopting in this
final rule.
Furthermore, due to DOE's decision to retain the current
definitions in 10 CFR 430.5(b), DOE is retaining the current disclaimer
notice text found in 10 CFR 430.5(c)(3).
Section 430.5(d)
In the NOPR, DOE explained how the public could submit a request
for error correction, what errors will be reviewed, and identified the
evidence the Department would accept in considering such a request
under 10 CFR 430.5(d). Specifically, DOE proposed to clarify that the
Secretary would not be obligated to take an action, and would have the
discretion to choose whether to correct an error properly identified
and determined to be consequential. The proposal also explained that
the review would be limited to identifying Errors in the regulatory
text and not be expanded to include issues related to the policy
decision itself; policy decisions would continue to remain strictly
within the discretion of the Secretary. 85 FR 64071, 64073.
The Joint Industry Commenters opposed DOE's proposal for 10 CFR
430.5(d) and argued that the Secretary lacks the discretion to not
amend a consequential or inconsequential error properly identified.
While the commenters agreed that it is within the Secretary's
discretion in deciding not to act when an inconsequential error is
identified, they asserted that in those instances where an error is
uncorrected, DOE should explain its reasons for doing so. (Joint
Industry Commenters, No. 03 at p. 4) When deciding not to act on a
consequential error, the Joint Industry Commenters argued that the
Secretary should explain why no action is being taken. (Joint Industry
Commenters, No. 03 at pp. 4-5) The Joint Industry Commenters reiterated
that DOE should not limit error review to the regulatory text and
should consider addressing errors in the technical support document and
the preamble if the error substantially affects the resulting standard
in the regulatory text. (Joint Industry Commenters, No. 03 at p. 5) The
Joint Industry Commenters also argue that the evidence used to
substantiate the error should not be limited to the existing rulemaking
record--any evidence that may substantiate an error should be
permitted, including evidence that is not part of the existing record.
(Joint Industry Commenters, No. 03 at p. 5)
Determining whether a purported error in a pre-publication final
rule is, actually, an error, and, if so, whether such error is
consequential or inconsequential--along with the decision on how to
handle that error--resides solely within the Secretary's discretion
under 10 CFR 430.5(d)(1). The Secretary is also under no obligation to
consider a request that does not comply with 10 CFR 430.5(d). As a
practical matter, DOE likely would consider an inconsequential error as
one not meriting a response, while a consequential error likely would
be addressed in the form of a correction to the relevant regulatory
text.
While some commenters suggested that DOE accept evidence not
previously included in the record, DOE again emphasizes that the error
correction process is the final step immediately prior to when DOE
submits a document to the Federal Register for publication. At this
stage, all of the information pertaining to the substance of the
rulemaking should have already been submitted to DOE for its
consideration. If DOE were to permit the
[[Page 22921]]
submission of additional information at this late juncture for
consideration, the risk of parties withholding valuable and useful
information for DOE to consider until the error correction process
would be considerably higher, resulting in a process that would
adversely impact the rulemaking process by delaying finality to the
rulemaking. Moreover, DOE wishes to ensure that parties provide as much
information as possible during the relevant and appropriate stages of a
given rulemaking--that is, during any pre-NOPR stages, which DOE
typically offers, as well as in response to a designated comment period
for a NOPR or supplemental NOPR. Commenters have these multiple
opportunities to bring data or information to the Department's
attention during the rulemaking process. Accordingly, DOE is declining
to adopt the approach suggested by the commenters and will continue to
restrict consideration of available data and evidence to information
that is already part of the relevant rulemaking record.
Section 430.5(e)
In the NOPR, DOE explained that this section would continue to
describe the course of action that the Department may take in the event
that a request for correction has appropriately identified an error.
DOE proposed new text explaining the Secretary's authority to determine
the appropriate remedy for an error identified and the Secretary's
discretion to initiate additional review of the regulatory text so that
it mirrors the Secretary's intent. 85 FR 64071, 64074
In response to the NOPR, Joint Industry Commenters recommended that
DOE respond to every error correction request submitted even if the
Secretary decides not to act under 10 CFR 430.5(e). In their view, the
requester should be notified that its request for review was received,
considered, and provided a rationale for why the Department decided not
to act upon the request. (Joint Industry Commenters, No. 03 at pp. 5-6)
The Joint Industry Commenters further concurred with DOE's proposal
to clarify that the ECR does not establish any obligation on the
Secretary to publish a pre-publication draft document upon completion
of the error correction process. Joint Industry Commenters acknowledged
timing for publication remains within the Department's discretion,
which are separate and apart from the error correction process. (Joint
Industry Commenters, No. 03 at p. 5)
In light of DOE's decision to not amend the regulatory requirements
currently found in 10 CFR 430.5(f), as discussed in more detail below,
DOE will be retaining the regulatory text currently found in Sec.
430.5(e). In DOE's view, the ECR process is designed solely as an
additional review period to address errors that may be contained in the
regulatory text of a draft pre-publication document. In those cases
where DOE agrees that a properly submitted error correction request
identified an error in the posted text and that error requires
correcting, DOE's response will come in the form of DOE's correction of
that error. If DOE concludes that any request for error-correction is
not valid, and if it has identified no errors on its own, DOE will
proceed to submit the rule for publication in the Federal Register in
the same form it was previously posted. By doing so, the Department
will effectively be rejecting any error-correction requests it has
received, and will ordinarily not respond directly to a requester or
provide additional notice regarding the request.
Compelling DOE to individually address each error correction
request submitted in instances where no change is merited is not an
appropriate use of DOE's limited resources. Moreover, in DOE's
experience, many of the error correction requests that DOE receives are
transmitted at the end of the error correction process and often do not
identify what this rule defines as ``Errors.'' Therefore, at this time,
DOE declines to implement any requirements that it affirmatively
address every error correction request received. DOE will, however,
docket all properly submitted error correction requests in the
appropriate docket to ensure that the public is aware of any properly
submitted requests that were received.
DOE notes that commenters continue to remain free to submit input
to the relevant docket throughout the duration of the rulemaking to
help inform DOE regarding any aspects of that rulemaking.
Section 430.5(f)
In the NOPR, DOE proposed revising 10 CFR 430.5(f) to prevent the
inference that publication in Federal Register is the only outcome
available at the conclusion of the error correction process. 85 FR
64071, 64074. While some commenters asserted that the Secretary is not
obligated to submit a pre-publication final rule for publication in the
Federal Register at the end of the review process and that it remains
within the Secretary's discretion to determine what happens once the
review period concludes (see Joint Industry Commenters, No. 03 at p. 5-
6; Lennox, No. 04 at 5; NRDC/ASAP, No. 06 at p. 1), one commenter
opposed DOE's proposal and questioned the legality of the rulemaking
considering a decision from the United States Court of Appeals for the
Ninth Circuit. Natural Resources Defense Council v. Perry, 940 F.3d
1072 (9th Cir. 2019) (A.O. Smith, No. 8 at p. 1) Additionally, others
argued that DOE is obligated to provide a publicly available statement
detailing how any properly received requests were handled. (Lennox, No.
04 at p. 4) Commenters stated that if DOE is unable to fix an error
identified, then DOE must provide a consistent process to help ensure
energy conservation standards are supported by error-free analysis that
is justified under EPCA. (Joint Industry Commenters, No. 03 at p. 6)
At this time, DOE is retaining the current regulatory text found in
10 CFR 430.5(f), notwithstanding two clarifications and two minor non-
substantive changes to reflect updated cross-references to amended 10
CFR 430.5(c). As explained in the NOPR, the Ninth Circuit held that 10
CFR 430.5(f) created a non-discretionary duty to submit draft rules
(i.e., a pre-publication draft) for publication in the Federal Register
within 30 days of the close of the error correction submission period.
Although DOE declines to adopt its proposal to amended 10 CFR 430.5(f)
as discussed in the NOPR, DOE continues to maintain that the error
correction process is intended to correct errors, as defined in 10 CFR
430.5(b), and is separate from DOE's policy-making discretion.
In this final rule, DOE provides two clarifying amendments to the
current regulatory text found in 10 CFR 430.5(f). Specifically, DOE
amends 10 CFR 430.5(f)(2) to remove the term ``in due course.'' The use
of the term ``in due course'' in 10 CFR 430.5(f)(2) could imply that a
final rule for which DOE does not receive any properly filed error
correction requests and determines that no corrections are necessary,
is subject to a different or longer time frame for submission for
publication in the Federal Register than a final rule for which DOE has
received one or more properly filed requests and determines that no
corrections are necessary (see 10 CFR 430.5(f)(1). This is not the
case. In either scenario, DOE expects that the rule will be submitted
for publication in the Federal Register within the 30 days allotted for
rules that actually require correction prior to submittal in 10 CFR
430.5(f)(3). DOE also amends 10 CFR 430.5(f)(3) to add ``or discovers
an Error on the Secretary's own initiative.'' This amendment addresses
the scenario of when the Secretary discovers an Error
[[Page 22922]]
on his or her own initiative and determines a correction is necessary--
a scenario that had only been addressed in 10 CFR 430.5(e), but has not
been explicitly included as a scenario in 10 CFR 430.5(f).
DOE will continue to consider the impact of the Ninth Circuit
decision on 10 CFR 430.5(f), as well as any impact a proposed change to
Sec. 430.5(f) would have on stakeholders in providing certainty and
transparency during the error correction process. Should DOE desire to
amend the language in paragraph (f) of this section, DOE will consider
and follow the appropriate rulemaking procedures for making such
amendments. The decision to maintain the current language in Sec.
430.5(f) does not in any way restrict, limit, diminish, or eliminate
the Secretary's discretion to determine whether to establish or amend
an energy conservation standard, or to determine the appropriate level
at which to amend or establish any energy conservation standard.
Section 430.5(g) and (h)
DOE proposed renumbering 10 CFR 430.5(g) and (h) and including new
text to reaffirm that a pre-publication document is not a final rule
within the meaning of EPCA. 85 FR 64071, 64073. DOE received comments
supporting its proposed modification to 10 CFR 430.5(g). The Joint
Industry Commenters supported the reaffirmation that the publication of
such drafts did not finalize the substance of the rule or signal an end
to the rulemaking process. (Joint Industry Commenters, No. 03 at p. 6)
While DOE acknowledges the comments it received in support of this
proposal, DOE has decided to retain the current regulations at 10 CFR
430.5(g) and (h). Since DOE's proposal for 10 CFR 430.5(g) was simply
intended to reorganize and reaffirm the language currently found in 10
CFR 430.5(g) and (h), DOE believes retaining the current requirements
would not be inconsistent with the intent and purpose of its proposal.
Therefore, DOE is retaining the current regulations at 10 CFR 430.5(g)
and (h) in this final rule.
III. Procedural Issues and Regulatory Review
A. Administrative Procedure Act
Agency rules of procedure and practice, such as the one described
in this document, are not subject to the requirement to provide prior
notice and an opportunity for public comment pursuant to authority at 5
U.S.C. 553(b)(A). DOE notes that a rule of this nature is also not a
substantive rule subject to a 30-day delay in effective date pursuant
to 5 U.S.C. 553(d). Nonetheless, DOE voluntarily offered an opportunity
to the public to make comments on the changes set forth in this final
rule.
B. Review Under Executive Orders 12866, 13563, and 14094 <SUP>5</SUP>
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\5\ Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' as supplemented and reaffirmed by E.O. 13563, ``Improving
Regulation and Regulatory Review,'' 76 FR 3821 (Jan. 21, 2011) and
E.O. 14094, ``Modernizing Regulatory Review,'' 88 FR 21879 (April
11, 2023),
---------------------------------------------------------------------------
This regulatory action is not a ``significant regulatory action''
under section 3(f) of Executive Order 12866. Accordingly, this action
was not subject to review under that Executive order by the Office of
Information and Regulatory Affairs (OIRA) of the Office of Management
and Budget (OMB).
The revisions contained in this regulatory action are designed to
clarify DOE's process with respect to its error correction process for
addressing errors identified in the regulatory text of a draft pre-
publication document of a potential rule that would establish or amend
the energy conservation standards of a regulated product or equipment.
These revisions clarify the manner in which DOE will implement this
error correction process and affirms the agency's retention of its
discretion with respect to the handling of these pre-publication
documents and any comments received regarding potential errors
contained in the relevant regulatory text. These revisions would not
impose any regulatory costs or burdens on stakeholders, nor would they
in any way limit public participation in DOE's rulemaking process.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) requires
preparation of an initial regulatory flexibility analysis (``IRFA'')
and a final regulatory flexibility analysis (``FRFA'') for any rule
that by law must be proposed for public comment, unless the agency
certifies that the rule, if promulgated, will not have a significant
economic impact on a substantial number of small entities. The proposed
rule was not subject to the requirement to provide prior notice and an
opportunity for public comment, therefore, this final rule is not
subject to the analytical requirements of the Regulatory Flexibility
Act.
D. Review Under the Paperwork Reduction Act
This final rule does not contain a collection of information for
purposes of the Paperwork Reduction Act.
E. Review Under the National Environmental Policy Act of 1969
DOE has determined that this final rule falls into a class of
actions that are categorically excluded from review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's
implementing regulations at 10 CFR part 1021. Specifically, this rule
is strictly procedural and is covered by the Categorical Exclusion in
10 CFR part 1021, subpart D, paragraph A6. Accordingly, neither an
environmental assessment nor an environmental impact statement is
required.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 10, 1999),
imposes certain requirements on Federal agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. The Executive order requires agencies to
examine the constitutional and statutory authority supporting any
action that would limit the policymaking discretion of the States and
to carefully assess the necessity for such actions. The Executive order
also requires agencies to have an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.
On March 14, 2000, DOE published a statement of policy describing the
intergovernmental consultation process that it will follow in the
development of such regulations. 65 FR 13735. DOE has examined this
final rule and has determined that it will not have a substantial
direct effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. EPCA governs
and prescribes Federal preemption of State regulations as to energy
conservation for the products and equipment that would be subject to
this proposed rule. States can petition DOE for exemption from such
preemption to the extent, and based on criteria, set forth in EPCA. (42
U.S.C. 6297(d)) No further action is required by Executive Order 13132.
G. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of
[[Page 22923]]
new regulations, section 3(a) of Executive Order 12988, ``Civil Justice
Reform,'' imposes on Federal agencies the general duty to adhere to the
following requirements: (1) Eliminate drafting errors and ambiguity;
(2) write regulations to minimize litigation; and (3) provide a clear
legal standard for affected conduct rather than a general standard and
promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996).
Section 3(b) of Executive Order 12988 specifically requires that
Executive agencies make every reasonable effort to ensure that the
regulation: (1) Clearly specifies the preemptive effect, if any; (2)
clearly specifies any effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. Section 3(c) of
Executive Order 12988 requires Executive agencies to review regulations
in light of applicable standards in section 3(a) and section 3(b) to
determine whether they are met or it is unreasonable to meet one or
more of them. DOE has completed the required review and determined
that, to the extent permitted by law, this final rule meets the
relevant standards of Executive Order 12988.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires each Federal agency to assess the effects of Federal
regulatory actions on State, local, and Tribal governments and the
private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531).
For a regulatory action resulting in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to
develop an effective process to permit timely input by elected officers
of State, local, and Tribal governments on a proposed ``significant
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect small governments. On March 18, 1997,
DOE published a statement of policy on its process for
intergovernmental consultation under UMRA. 62 FR 12820; also available
at <a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>. DOE examined this final
rule according to UMRA and its statement of policy and determined that
the final rule contains neither an intergovernmental mandate, nor a
mandate that may result in the expenditure of $100 million or more in
any year, so these requirements do not apply.
I. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any rule that may affect family well-being.
This final rule will not have any impact on the autonomy or integrity
of the family as an institution. Accordingly, DOE has concluded that it
is not necessary to prepare a Family Policymaking Assessment.
J. Review Under Executive Order 12630
DOE has determined, under Executive Order 12630, ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights,'' 53 FR 8859 (Mar. 18, 1988), that this regulation will not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
K. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to
review most disseminations of information to the public under
guidelines established by each agency pursuant to general guidelines
issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22,
2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7,
2002). DOE has reviewed this final rule under the OMB and DOE
guidelines and has concluded that it is consistent with applicable
policies in those guidelines.
L. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to OIRA
at OMB, a Statement of Energy Effects for any significant energy
action. A ``significant energy action'' is defined as any action by an
agency that promulgated or is expected to lead to promulgation of a
final rule, and that: (1) is a significant regulatory action under
Executive Order 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (3) is designated by the Administrator of OIRA as a
significant energy action. For any significant energy action, the
agency must give a detailed statement of any adverse effects on energy
supply, distribution, or use if the regulation is implemented, and of
reasonable alternatives to the action and their expected benefits on
energy supply, distribution, and use.
This final rule is not a significant energy action because the
ability to correct regulations will not, in itself, have a significant
adverse effect on the supply, distribution, or use of energy. Moreover,
it would not have a significant adverse effect on the supply,
distribution, or use of energy, nor has it been designated as a
significant energy action by the Administrator of OIRA. Accordingly,
DOE has not prepared a Statement of Energy Effects.
M. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule before its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
IV. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of this final
rule.
List of Subjects in 10 CFR Part 430
Administrative practice and procedure, Confidential business
information, Energy conservation, Household appliances, Imports,
Intergovernmental relations, Small businesses.
Signing Authority
This document of the Department of Energy was signed on March 25,
2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for
Energy Efficiency and Renewable Energy, pursuant to delegated authority
from the Secretary of Energy. That document with the original signature
and date is maintained by DOE. For administrative purposes only, and in
compliance with requirements of the Office of the Federal Register, the
undersigned DOE Federal Register Liaison Officer has been
[[Page 22924]]
authorized to sign and submit the document in electronic format for
publication, as an official document of the Department of Energy. This
administrative process in no way alters the legal effect of this
document upon publication in the Federal Register.
Signed in Washington, DC, on March 26, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons stated in the preamble, DOE amends part 430 of
Chapter II of Title 10, Code of Federal Regulations as set forth below:
PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS
0
1. The authority citation for part 430 continues to read as follows:
Authority: 42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
0
2. Revise and republish Sec. 430.5 to read as follows:
Sec. 430.5 Error correction procedures for energy conservation
standards rules.
(a) Scope and purpose. The regulations in this section describe an
optional procedure through which the Department of Energy may accept
and consider submissions regarding possible Errors in its rules under
the Energy Policy and Conservation Act, as amended (42 U.S.C. 6291-
6317). This section applies to rules establishing or amending energy
conservation standards under the Act, except that this section does not
apply to direct final rules issued pursuant to section 325(p)(4) of the
Act (42 U.S.C. 6295(p)(4)).
(b) Definitions.
Act means the Energy Policy and Conservation Act of 1975, as
amended (42 U.S.C. 6291-6317).
Error means an aspect of the regulatory text of a rule that is
inconsistent with what the Secretary intended regarding the rule at the
time of posting. Examples of possible mistakes that might give rise to
Errors include:
(i) A typographical mistake that causes the regulatory text to
differ from how the preamble to the rule describes the rule;
(ii) A calculation mistake that causes the numerical value of an
energy conservation standard to differ from what technical support
documents would justify; or
(iii) A numbering mistake that causes a cross-reference to lead to
the wrong text.
Rule means a rule establishing or amending an energy conservation
standard under the Act.
Secretary means the Secretary of Energy or an official with
delegated authority to perform a function of the Secretary of Energy
under this section.
(c) Posting of rules. (1) It is within in the sole discretion of
the Secretary to make a rule available to the public to review for
Errors in the document's regulatory text.
(2) If a rule is made available for review, the Secretary
ordinarily will keep the document posted for a period of 45 calendar
days, but the Secretary in his or her discretion (while remaining
consistent with his or her statutory obligations under EPCA and other
legal obligations when promulgating an energy conservation standard)
may shorten or lengthen the time period during which the rule document
is posted.
(3) Any rule document posted pursuant to paragraph (c)(1) of this
section shall bear the following disclaimer: Notice: The text of this
rule is subject to correction based on the identification of errors as
defined in 10 CFR 430.5 before publication in the Federal Register.
Readers are requested to notify the United States Department of Energy,
by email at [EMAIL ADDRESS PROVIDED IN POSTED NOTICE], of any
typographical or other errors, as described in such regulations, by no
later than midnight on [DATE SPECIFIED IN THE POSTING OF THE DOCUMENT
ON THE DEPARTMENT'S WEBSITE], in order that DOE may make any necessary
corrections in the regulatory text submitted to the Office of the
Federal Register for publication.
(d) Request for error-correction review. (1) A person identifying
an Error subject to this section may request that the Secretary review
a potential Error. Such a request must ordinarily be submitted within
45 calendar days of the posting of the rule pursuant to paragraph
(c)(1) of this section. The Secretary in his or her discretion may
shorten or lengthen the time period during which such requests may be
submitted.
(2)(i) A request under this section must identify a potential Error
with particularity. The request must specify the regulatory text
claimed to be erroneous. The request must also provide text that the
requester contends would be a correct substitute. If a requester is
unable to identify a correct substitute, the requester may submit a
request that states that the requester is unable to determine what text
would be correct and explains why the requester is unable to do so. The
request must also substantiate the claimed Error by citing evidence
from the existing record of the rulemaking, demonstrating that the
regulatory text of the rule is inconsistent with what the Secretary
intended the text to be.
(ii) A person's disagreement with any policy choices or
discretionary decisions that are contained in the rule will not
constitute a valid basis for a request under this section. All policy
and discretionary decisions with regard to whether to establish or
amend any conservation standard and, if so, the appropriate level at
which to amend or establish that standard, remain within the sole
discretion of the Secretary without regard to the procedures
established in this section.
(3) The evidence to substantiate a request (or evidence of the
Error itself) must be in the record of the rulemaking at the time of
posting the rule, which may include an accompanying preamble. The
Secretary will not consider new evidence submitted in connection with
an error-correction request.
(4) A request under this section must be filed in electronic format
by email to the address that the disclaimer to the rule designates for
error-correction requests. Should filing by email not be feasible, the
requester should contact the program point of contact designated in the
rule order to ascertain an appropriate alternative means of filing an
error-correction request.
(5) A request that does not comply with the requirements of this
section will not be considered.
(e) Correction of rules. The Secretary may respond to a request for
correction under paragraph (d) of this section or address an Error
discovered on the Secretary's own initiative by submitting to the
Office of the Federal Register either a corrected rule or the rule as
previously posted.
(f) Publication in the Federal Register. (1) If, after receiving
one or more properly filed requests for correction, the Secretary
decides not to undertake any corrections, the Secretary will submit the
rule for publication to the Office of the Federal Register as it was
posted pursuant to paragraph (c)(1) of this section.
(2) If the Secretary receives no properly filed requests after
posting a rule and identifies no Errors on the Secretary's own
initiative, the Secretary will submit the rule, as it was posted
pursuant to paragraph (c)(1) of this section, to the Office of the
Federal Register for publication. This will occur after the period
prescribed pursuant to paragraph (c)(2) of this section has elapsed.
[[Page 22925]]
(3) If the Secretary receives a properly filed request after
posting a rule pursuant to paragraph (c)(1) of this section and
determines that a correction is necessary, or discovers an Error on the
Secretary's own initiative, the Secretary will, absent extenuating
circumstances, submit a corrected rule for publication in the Federal
Register within 30 days after the period prescribed by paragraph (c)(2)
of this section has elapsed.
(4) Consistent with the Act, compliance with an energy conservation
standard will be required upon the specified compliance date as
published in the relevant rule in the Federal Register.
(5) Consistent with the Administrative Procedure Act, and other
applicable law, the Secretary will ordinarily designate an effective
date for a rule under this section that is no less than 30 days after
the publication of the rule in the Federal Register.
(6) When the Secretary submits a rule for publication, the
Secretary will make publicly available a written statement indicating
how any properly filed requests for correction were handled.
(g) Alteration of standards. Until an energy conservation standard
has been published in the Federal Register, the Secretary may correct
such standard, consistent with the Administrative Procedure Act.
(h) Judicial review. For determining the prematurity, timeliness,
or lateness of a petition for judicial review pursuant to section
336(b) of the Act (42 U.S.C. 6306), a rule is considered ``prescribed''
on the date when the rule is published in the Federal Register.
[FR Doc. 2024-06690 Filed 4-2-24; 8:45 am]
BILLING CODE 6450-01-P
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