Office of Energy Efficiency and Renewable Energy; Department of Energy.
Notice of final rulemaking.
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.
This rule is effective November 9, 2001.Start Further Info
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: firstname.lastname@example.org.
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: email@example.com.End Further Info End Preamble Start Supplemental Information
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. Start Printed Page 56605
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.
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.
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 Start Printed Page 56606that 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.Start List of Subjects
List of Subjects in 10 CFR Part 431End List of Subjects Start Signature
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.Start Part
PART 431—ENERGY EFFICIENCY PROGRAM FOR CERTAIN COMMERCIAL AND INDUSTRIAL EQUIPMENTEnd Part Start Amendment Part
1. The authority citation for part 431 continues to read as follows:End Amendment Part
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.”End Amendment Part End Supplemental Information
[FR Doc. 01-28215 Filed 11-8-01; 8:45 am]
BILLING CODE 6450-01-P