02-29969. 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:

Final rule.

SUMMARY:

This procedural rule amends the compliance certification regulations by revising the deadline date 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 26, 2002.

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 [phone], telefax [phone], or: [e-mail].

Francine Pinto, Esq., U.S. Department of Energy, Office of General Counsel, Mail Station GC-72, 1000 Independence Avenue, SW., Washington, DC 20585-0103, [phone], telefax [phone], or: [e-mail].

SUPPLEMENTARY INFORMATION:

I. 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 (DOE) construes the statutory language to provide manufacturers with two equivalent ways to fulfill the certification requirement: (1) A manufacturer may certify, through an independent testing program nationally recognized in the United States, that a covered motor meets the standard; or (2) a manufacturer may certify, through an independent certification program nationally recognized in the United States, that a covered motor meets the standard. DOE is of the view that section 345(c) does not require preference for one program over the other.

The procedures by which a manufacturer may certify the energy efficiency of the manufacturer's electric motors, through either a certification program or an accredited laboratory, are set forth in 10 CFR 431.24(a)(5). Section 431.123(a) in 10 CFR part 431 currently provides that, beginning on June 7, 2002, 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 that the manufacturer has submitted to DOE.

II. Background

On November 9, 2001, DOE published a notice of final rulemaking in the Federal Register that amended 10 CFR 431.123(a) to change the deadline for submission of compliance certifications from November 5, 2001, to June 7, 2002 (66 FR 56604). That action was taken because there was insufficient independent testing laboratory capacity for testing the thousands of basic models of electric motors covered by EPCA's efficiency standards. The notice of final rulemaking reported that a number of motor manufacturers had elected to base the certification of their motors' energy efficiency on testing conducted in a National Voluntary Laboratory Accreditation Program (NVLAP) accredited laboratory. However, about half of the motor manufacturers had elected to base their compliance on a certification program that DOE classifies as nationally recognized. Many of those manufacturers have committed resources in anticipation of certification programs being recognized by DOE. As of the November 9, 2001 date of publication of the notice of final rulemaking, there were no certification programs nationally recognized for the purposes of section 345(c) of EPCA. Therefore, it was impossible for manufacturers electing to use a nationally recognized certification program, as allowed by EPCA, to test and certify their motors for energy efficiency before November 5, 2001.

At that time, DOE believed that the extension of the certification deadline to June 7, 2002, would provide sufficient time for all manufacturers to come into compliance with EPCA's requirements. The new deadline was based on DOE's belief that it would be able to promptly complete action on the petitions for certification program recognition that had been submitted by CSA International and Underwriters Laboratories, Inc., and that such action could be completed in a timeframe that would allow manufacturers, if they so chose, to use an approved certification program and submit required certifications to DOE by the June 7, 2002 deadline. DOE had published for public comment the petition of CSA International on April 26, 2000 (65 FR 24429), and the petition of Underwriters Laboratories, Inc. on October 3, 2001 (66 FR 50355).

III. Discussion of Rule Amendment

DOE was not able to complete action on these two petitions for certification program recognition by June 7, 2002. DOE published its interim determinations to approve the CSA International and Underwriters Laboratories, Inc., petitions for certification program recognition on July 5, 2002. 67 FR 45018 and 45028. Under the certification program recognition process set forth in 10 CFR 431.28(a)-(f), after the period for public comment for the interim determinations closes, DOE will review any comments and information submitted, as well as any responsive statements of the petitioners. DOE then will publish a final determination on the petitions. In the meantime, however, the situation remains the same as it was in November 2001 when DOE granted the previous extension of the deadline in 10 CFR 431.123(a). That is, a number of motor manufacturers have elected to base the certification of their motors' energy efficiency on a certification program that DOE classifies as nationally recognized; many of those manufacturers have committed resources in anticipation of certification programs being recognized by DOE; there are no certification programs nationally recognized for the purposes of section 345(c) of EPCA; it is impossible for manufacturers electing to use a nationally recognized certification program, as allowed by EPCA, to test and certify their motors for energy efficiency before June 7, 2002; and there is insufficient independent testing laboratory capacity for testing the thousands of basic models of electric motors covered by EPCA's efficiency standards. Therefore, DOE is amending section 431.123(a) to further extend the deadline for motor manufacturers to certify compliance with EPCA.

In view of the foregoing, DOE today amends 10 CFR 431.123 to replace “June 7, 2002” with a phrase cross-referencing a new paragraph (g), which establishes a new compliance date. New paragraph (g) of 10 CFR 431.123 provides that the new compliance date is April 30, 2003, or the date that is 120 days after the date on which DOE publishes its final determinations for the CSA International and Underwriters Laboratories, Inc. petitions, whichever is earlier. The rule further provides that if DOE publishes the final determinations for the CSA International and Underwriters Laboratories, Inc. petitions on different dates, the compliance certification date is the date that is 120 days after the date of publication of the earlier final determination. DOE believes this approach will result in certifications by manufacturers using certification programs at the earliest possible time. While establishing April 30, 2003 as the outside limit on the extension, DOE expects to issue final determinations on the two petitions in time to allow manufacturers to come into compliance before that date.

The Secretary of Energy has approved issuance of this final rule.

IV. Procedural Issues and Regulatory Review

A. Review Under the National Environmental Policy Act

DOE reviewed today's rule under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., the regulations of the Council on Environmental Quality, 40 CFR parts 1500-1508, and DOE's regulations on compliance with NEPA, 10 CFR part 1021. DOE has determined that today's rule is covered by the Categorical Exclusion found at paragraph A6 of appendix A to subpart D of DOE's NEPA regulations, which applies to rulemakings that are strictly procedural. Accordingly, neither an environmental assessment nor an environmental impact statement has been prepared.

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 that is exempt from the Administrative Procedure Act'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 federal 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 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”

DOE has determined that this regulation would not result in any takings which might require compensation under the Fifth Amendment to the United States Constitution.

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

DOE 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 requirements of Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) do not apply.

J. 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, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

K. 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.

L. Review Under the Administrative Procedure Act

Today's final rule is not subject to requirements for prior notice and opportunity for public comment because it is procedural in nature. However, to the extent that 5 U.S.C. 553(b) may apply to this rulemaking, DOE finds that is impracticable and contrary to the public interest to publish prior notice because it is impossible for manufacturers who elected to use a nationally recognized certification program, as allowed by EPCA, to comply with the certification requirement by the June 7, 2002 deadline, and because regulated manufacturers should be relieved as promptly as possible of the threat of potential enforcement of the June 7, 2002 deadline, with which it was impossible for them to comply. This situation also warrants DOE making this final rule effective upon publication in the Federal Register.

M. 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).

List of Subjects in 10 CFR Part 431

• Administrative practice and procedure
• Energy conservation,

Issued in Washington, DC, on November 18, 2002.

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 follows:

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.

2. Section 431.123 is amended in paragraph (a), in the first sentence, by removing the phrase “Beginning June 7, 2002” and adding in its place the phrase “Beginning on the compliance date specified in paragraph (g) of this section”, and by adding a new paragraph (g) to read as follows:

§ 431.123

Compliance certification.

* * * * *

(g) Compliance date. The compliance date for purposes of this section is February 28, 2003, or the date that is 120 days after the date of publication in the Federal Register of DOE's final determinations on petitions for certification program recognition submitted by CSA International and Underwriters Laboratories, Inc., whichever is earlier. If DOE publishes the final determinations on different dates, the compliance certification date for purposes of this section shall be the date that is 120 days after the date of publication of the earlier final determination.