Subject: Energy Efficiency Program for Certain Commercial and
[Federal Register: November 9, 2001 (Volume 66, Number 218)]
[Rules and Regulations]
[Page 56604-56607]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no01-5]
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DEPARTMENT OF ENERGY
Office of Energy Efficiency and Renewable Energy
10 CFR Part 431
[Docket No. EE-RM-96-400]
RIN 1904-AB11
Energy Efficiency Program for Certain Commercial and Industrial
Equipment: Extension of Time for Electric Motor Manufacturers To
Certify Compliance With Energy Efficiency Standards
AGENCY: Office of Energy Efficiency and Renewable Energy; Department of
Energy.
ACTION: Notice of final rulemaking.
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SUMMARY: This procedural rule amends the compliance certification
section of subpart G, Certification and Enforcement, of Title 10 Code
of Federal Regulations Part 431, by revising the deadline date from
November 5, 2001 to June 7, 2002, for all electric motor manufacturers
to certify compliance to the Department of Energy that their motors
meet the applicable energy efficiency standards.
DATES: This rule is effective November 9, 2001.
FOR FURTHER INFORMATION CONTACT: James Raba, U.S. Department of Energy,
Office of Energy Efficiency and Renewable Energy, Mail Station EE-41,
1000 Independence Avenue, SW., Washington, DC 20585-0121, telephone
(202) 586-8654, telefax (202) 586-4617, or: jim.raba@ee.doe.gov.
Eugene Margolis, Esq., U.S. Department of Energy, Office of General
Counsel, Mail Station GC-72, 1000 Independence Avenue, SW., Washington,
DC 20585-0103, (202) 586-9526, telefax (202) 586-4116, or:
eugene.margolis@hq.doe.gov.
SUPPLEMENTARY INFORMATION:
Introduction
Section 345(c) of the Energy Policy and Conservation Act of 1975
(EPCA) requires ``manufacturers to certify, through an independent
testing or certification program nationally recognized in the United
States, that such motor meets the applicable [nominal full load
efficiency standard]'' (42 U.S.C. 6316(c)). The Department of Energy
(Department) construes the statutory language to provide manufacturers
with two equivalent ways to fulfill the certification requirement: (1)
manufacturers may certify, through an independent testing program
nationally recognized in the United States, that such motor meets the
standards; or (2) manufacturers may certify, through an independent
certification program nationally recognized in the United States that
such motor meets the standards. The Department is of the view that
section 345(c) does not require preference for one program over the
other.
Section 431.24(a)(5) of 10 CFR Part 431, sets forth procedures by
which a manufacturer may have a certification program or an accredited
laboratory, which the Department has classified as nationally
recognized, certify the energy efficiency of a manufacturer's electric
motors. Section 431.123(a) of 10 CFR Part 431 states that no electric
motor ``subject to an energy efficiency standard set forth in subpart C
of this part'' may be distributed in commerce unless it is covered by a
Compliance Certification, and that the Compliance Certification must be
submitted to the Department not later than November 5, 2001.
[[Page 56605]]
Background
The Department estimates that there are 41 manufacturers that
manufacture motors covered by the statute. Thus far, it appears that
half of the manufacturers have elected to certify the efficiency of
their electric motors through an independent testing laboratory, and
half through a certification program. Also, section III.F.2. of the
preamble to the Proposed Rule for Electric Motors, 61 FR 60455
(November 27, 1996), summarizes testimony and written statements from
manufacturers and the National Electrical Manufacturers Association
which speak of different basic models of motors numbering in the
thousands that are being manufactured and could potentially be required
to undergo testing for efficiency.
As of the publication date of this final rule, there continues to
be insufficient testing capacity. According to the National Institute
of Standards and Technology, National Voluntary Laboratory
Accreditation Program (NVLAP) ``2001 Directory,'' dated March 2001,
there are 11 testing laboratories that meet the requirements of section
431.24(a)(5) of 10 CFR Part 431 and could be available to test motors
for the purposes of section 345(c) of EPCA. Of those testing
laboratories, two are not in any way affiliated with a motor
manufacturer; and of those two, only one is located in the United
States. Thus far, a number of motor manufacturers have elected to base
the certification of their motors' energy efficiency on testing
conducted in a NVLAP accredited laboratory. Certain other motor
manufacturers have, in ``good faith,'' elected to base their compliance
on a certification program, and have either had their motors tested in
advance or have committed resources in anticipation of certification
programs becoming recognized by the Department of Energy. As of today's
Federal Register notice of final rulemaking, there are no certification
programs nationally recognized for the purposes of section 345(c) of
EPCA. Therefore, the Department believes it will be impossible for many
manufacturers to make the choice allowed by EPCA to test and certify
their motors for energy efficiency before November 5, 2001.
Discussion
Presently, two certification programs have, under the provisions of
section 431.28 of 10 CFR part 431, petitioned the Department to be
classified as nationally recognized in the United States for the
purposes of section 345(c) of EPCA: CSA International, 65 FR 24429
(April 26, 2000), and Underwriters Laboratories Inc., 66 FR 50355
(October 3, 2001). The Department believes the only way to make the
statutory testing and certifying capacity available would be to delay
enforcement so as to enable the Department to conclude the recognition
process required under section 431.28 of 10 CFR Part 431, and
thereafter allow manufacturers sufficient time to certify the
efficiency of their motors through either an independent testing or
certification program. The recognition process set forth in section
431.28(a)-(f) of 10 CFR Part 431 consists, in sum, of: (1) a
certification organization filing a petition with the Department, (2)
public notice and solicitation of comments, (3) allowance for a
responsive statement by the petitioner, (4) public announcement of an
interim determination by the Department and solicitation of comments,
and (5) public announcement of a final determination. In addition, the
Department must analyze the information presented in the petition,
prepare and issue a Federal Register notice to solicit public comments,
address those comments received, prepare and issue a second Federal
Register notice that announces an interim determination and further
solicits public comments, address those comments, and thereafter,
prepare and issue a Federal Register notice that announces a final
determination. Also, the Department would conduct an independent
investigation to gather additional information relevant to the
petition. Such a process could take up to 12 months. The Department
believes that its investigation and determination process should be
stringent because a certification program underlies the compliance
determination for many motors. In the case of the recognition processes
already underway both for CSA International and Underwriters
Laboratories Inc., the Department would need up to 15 weeks in order to
reach its final determinations. Following those determinations,
manufacturers would need up to 16 weeks to complete the efficiency
certification process for their motors. Therefore, the Department has
decided to amend the deadline in section 431.123(a) to give
manufacturers additional time to certify compliance of their motors,
either by choosing a testing laboratory accredited by NVLAP or by any
nationally recognized certification program that DOE may approve.
Conclusion
The Department's goal is to have in place a certification
capability for the industry that would provide reasonable assurance to
consumers that the motors they purchase are of the efficiency specified
by the manufacturer and are in compliance with governing standards. The
Department believes that the integrity of the certification process
must be maintained, while at the same time the fair operation of the
motor market must be supported. Accordingly, the Department today
amends section 431.123(a) of 10 CFR part 431, by revising the deadline
date for manufacturers to certify compliance to the Department of
Energy, from November 5, 2001 to June 7, 2002.
Procedural Issues and Regulatory Review
A. Review Under the National Environmental Policy Act
Review under the National Environmental Policy Act was addressed in
the notice of proposed rulemaking (NOPR) , 61 FR 60460 (November 27,
1996), and in the final rule which established 10 CFR part 431, 64 FR
54139 (October 5, 1999). The Department concluded that neither an
environmental assessment nor an environmental impact statement is
needed. The same conclusion applies to today's final rule.
B. Review Under Executive Order 12866, ``Regulatory Planning and
Review''
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735). Accordingly, today's
action was not subject to review under the Executive Order by the
Office of Information and Regulatory Affairs in the Office of
Management and Budget.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., requires
that a federal agency prepare a regulatory flexibility analysis for any
rule for which the agency is required to publish a general notice of
proposed rulemaking. Today's rule is a rule of agency procedure which
is exempt from the APA's notice and comment requirements. Therefore, a
regulatory flexibility analysis has not been prepared.
D. Review Under Executive Order 13132, ``Federalism''
Executive Order 13132, ``Federalism'' (64 FR 43255) requires
agencies to develop an accountable process to ensure meaningful and
timely input by State and local officials in the development of
regulatory policies that have ``federalism implications.'' Policies
[[Page 56606]]
that have federalism implications are defined in the Executive Order to
include regulations that have ``substantial direct effects 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.'' On March 14, 2000, DOE published a
statement of policy describing the intergovernmental consultation
process it will follow in the development of such regulations (65 FR
13735). DOE has examined today's rule and determined that it does 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 the Executive Order.
E. Review Under Executive Order 12630, ``Governmental Actions and
Interference With Constitutionally Protected Property Rights''
The Department's review under Executive Order 12630, ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights,'' was addressed in the NOPR, 61 FR at 60462, and in the final
rule which established 10 CFR part 431, 64 FR at 54140. The Department
determined that this regulation would not result in any takings which
might require compensation under the Fifth Amendment to the United
States Constitution. The same conclusion applies to today's final rule.
F. Review Under the Paperwork Reduction Act
No new collection of information will be imposed by this
rulemaking. Accordingly, no clearance by the Office of Management and
Budget is required under the Paperwork Reduction Act (44 U.S.C. 3501,
et seq.).
G. Review Under Executive Order 12988, ``Civil Justice Reform''
With respect to the review of existing regulations and the
promulgation of new regulations, section 3 of Executive Order 12988,
``Civil Justice Reform'' (61 FR 4729) imposes on Executive agencies the
general duty to eliminate drafting errors and ambiguity; write
regulations to minimize litigation; provide a clear legal standard for
affected conduct rather than a general standard; and promote
simplification and burden reduction. 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. 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 Section 32 of the Federal Energy Administration Act
Today's final rule does not incorporate commercial standards by
reference. Therefore, section 32 of the Federal Energy Administration
Act does not apply to today's final rule.
I. Review Under the Unfunded Mandates Reform Act
The Department's review under the Unfunded Mandates Reform Act
(UMRA) was addressed in the NOPR, 61 FR at 60463, and in the final rule
which established 10 CFR part 431, 64 FR at 54141. The Department has
determined that today's final rule does not include a Federal mandate
that may result in estimated costs of $100 million or more to state,
local or to tribal governments in the aggregate or to the private
sector. Therefore, the same conclusion applies to today's final rule.
J. Review Under the Small Business Regulatory Enforcement Fairness Act
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of today's rule prior to 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).
K. 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 proposed rule or policy that may affect
family well-being. Today's final rule would not have any impact on the
autonomy or integrity of the family as an institution. Accordingly, the
Department has concluded that it is not necessary to prepare a Family
Policymaking Assessment.
L. Review Under Executive Order 13211, ``Actions Concerning Regulations
That Significantly Affect Energy Supply, Distribution, or Use''
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
the Office of Information and Regulatory Affairs (OIRA), Office of
Management and Budget, a Statement of Energy Effects for any proposed
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates or is expected to lead to
the 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 proposed
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposed action be implemented, and of reasonable alternatives to the
action and their expected benefits on energy supply, distribution, and
use.
Today's final rule would not have any adverse effects on the
supply, distribution, or use of energy.
M. Review Under the Administrative Procedure Act
In the Department's view, today's final rule is not subject to
requirements for prior notice and opportunity for public comment
because it is procedural in nature. In the alternative, to the extent
that 5 U.S.C. 553(b) may apply to this rulemaking, the Department finds
that is impracticable and contrary to the public interest to publish
prior notice because the Department cannot enforce the existing
regulatory deadline and cannot relieve regulated manufacturers of the
threat of potential enforcement of the deadline before November 5,
2001, without dispensing with prior notice.
List of Subjects in 10 CFR Part 431
Administrative practice and procedure, Energy conservation,
Reporting and recordkeeping requirements.
Issued in Washington, DC, on November 6, 2001.
David K. Garman,
Assistant Secretary, Energy Efficiency and Renewable Energy.
For the reasons set forth in the preamble, part 431 of chapter II
of title 10, Code of Federal Regulations, is amended, as set forth
below.
PART 431--ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND
INDUSTRIAL EQUIPMENT
1. The authority citation for part 431 continues to read as
follows:
Authority: 42 U.S.C. 6311-6316.
[[Page 56607]]
Sec. 431.123 [Amended]
2. In section 431.123, paragraph (a) is amended in the first
sentence by removing the phrase ``Beginning 24 months after November 4,
1999'' and adding in its place the phrase ``Beginning June 7, 2002.''
[FR Doc. 01-28215 Filed 11-8-01; 8:45 am]
BILLING CODE 6450-01-P