[Federal Register Volume 78, Number 248 (Thursday, December 26, 2013)]
[Proposed Rules]
[Pages 78305-78309]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-30633]


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FEDERAL TRADE COMMISSION

16 CFR Part 305

[3084-AB15]


Energy and Water Use Labeling for Consumer Products Under the 
Energy Policy and Conservation Act (``Energy Labeling Rule'')

AGENCY: Federal Trade Commission (FTC or Commission).

ACTION: Proposed rule.

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SUMMARY: The Commission proposes conforming amendments to the Energy 
Labeling Rule (``Rule'') to require a new Department of Energy (DOE) 
test procedure for televisions and establish data reporting 
requirements for those products.

DATES: Comments must be received by February 10, 2014.

ADDRESSES: Interested parties may file a comment online or on paper by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Television Labels, 
Matter No. R611004'' on your comment, and file your comment online at 
https://ftcpublic.commentworks.com/ftc/televisionlabels by following 
the instructions on the web-based form. If you prefer to file your 
comment on paper, mail or deliver your comment to the following 
address: Federal Trade Commission, Office of the Secretary, Room H-113 
(Annex F), 600 Pennsylvania Avenue NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: Hampton Newsome, (202) 326-2889, 
Attorney, Division of Enforcement, Bureau of Consumer Protection, 
Federal Trade Commission, Room M-8102B, 600 Pennsylvania Avenue NW., 
Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Background

    The Commission's Energy Labeling Rule (Rule) (16 CFR Part 305), 
issued pursuant to the Energy Policy and Conservation Act (EPCA), 
requires energy labeling for major household appliances and other 
consumer products to help consumers compare competing models. When 
first published in 1979, the Rule applied to eight product categories: 
Refrigerators, refrigerator-freezers, freezers, dishwashers, water 
heaters, clothes washers, room air conditioners, and furnaces. The 
Commission has since expanded the Rule's coverage to include central 
air conditioners, heat pumps, plumbing products, lighting products, 
ceiling fans, certain types of water heaters, and televisions.
    The Rule requires manufacturers to attach yellow EnergyGuide labels 
on many of these products, and prohibits retailers from removing the 
labels or rendering them illegible. In addition, the Rule directs 
sellers, including retailers, to post label information on Web sites 
and in paper catalogs from which consumers can order products. 
EnergyGuide labels for covered appliances must contain three key 
disclosures: Estimated annual energy cost (for most products); a 
product's energy consumption or energy efficiency rating as determined 
from Department of Energy (DOE) test procedures; and a comparability 
range displaying the highest and lowest energy costs or efficiency 
ratings for all similar models.\1\ For energy cost calculations, the 
Rule specifies national average costs for applicable energy sources 
(e.g., electricity, natural gas, oil) as calculated by DOE. The Rule 
sets a five-year schedule for updating range of comparability and 
average unit energy cost information.\2\ The Commission updates the 
range information based on manufacturer data submitted pursuant to the 
Rule's reporting requirements.
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    \1\ Where no ``applicable'' DOE test exists for televisions, 
EPCA authorizes the Commission to use ``adequate non-Department of 
Energy test procedures'' to obtain information for energy 
disclosures. 42 U.S.C. 6294(a)(2)(I)(ii). During FTC's television 
labeling proceeding, DOE announced plans to develop a new test 
procedure. 74 FR 53640, 53641 (Oct. 20, 2009).
    \2\ 16 CFR 305.10.

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[[Page 78306]]

II. Proposed Amendments

    The Commission now proposes conforming amendments to revise the 
Rule's television testing and reporting requirements in response to a 
new DOE television test procedure published on October 25, 2013 (78 FR 
63823). These amendments will ensure the Rule's television labeling 
requirements are consistent with EPCA, which mandates that FTC labels 
reflect applicable DOE test procedures when available.\3\
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    \3\ 42 U.S.C. 6294(c).
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    When the Commission first issued labeling requirements for 
televisions in 2011 (76 FR 1038 (Jan. 6, 2011)), no DOE test procedure 
existed for such products. Accordingly, the FTC required manufacturers 
to use the Environmental Protection Agency's (EPA's) ENERGY STAR test 
procedure to measure television energy use. However, as discussed in 
several previous Federal Register Notices, the Commission has 
anticipated that amendments would be necessary after completion of the 
DOE test procedure.\4\ DOE's recently completed test procedure 
supersedes the ENERGY STAR procedure and triggers EPCA's directive for 
manufacturers to begin using the new procedure 180 days after its 
issuance.\5\
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    \4\ For example, the Commission explained in 2011 that ``[w]hen 
DOE completes its own rulemaking to develop a television test 
procedure for use in that agency's efficiency standards program, the 
Commission will issue conforming amendments consistent with EPCA's 
requirements that the labels use information from DOE test 
procedures when such procedures are available.'' 76 FR 1038, 1040 
(Jan. 6, 2011). See also 78 FR 43974, 43975 (July 23, 2013); 78 FR 
1779, 1780 (Jan. 9, 2013).
    \5\ Any energy representation, including those made on a label, 
for a covered product must fairly reflect the results of a new DOE 
test procedure 180 days after that test's issuance. See 42 U.S.C. 
6293(c)(2). In its October 25, 2013 Notice, DOE identified April 23, 
2014 as the date for revised representations.
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    To conform the labeling rule to the new DOE test procedure, the 
Commission proposes three amendments. First, consistent with EPCA's 
mandate requiring DOE test procedures for labeling, the Commission 
plans to remove the Rule's reference to the ENERGY STAR test in section 
305.5 and replace it with the DOE procedure.\6\ Second, the Commission 
proposes a new reporting requirement for televisions consistent with 
requirements for most other labeled products, such as refrigerators and 
clothes washers.\7\ Manufacturers may submit their new television data 
through the DOE's web-based reporting tool, the Compliance and 
Certification Management System (CCMS).\8\ To ensure that EPCA's 180-
day period (i.e., April 23, 2014) is complete before requiring the 
first round of data reports, the Commission proposes a May 1 date for 
annual submissions pursuant to the Rule's reporting schedule (section 
305.8). After the Commission reviews the new data, it will consider 
issuing updated comparability ranges for television labels.\9\ Finally, 
the proposed amendments update the definition of ``television'' in 
section 305.3 to incorporate DOE's definition of that term as well as 
limit labeling coverage to the scope of DOE's test procedure. For the 
most part, DOE's definition of ``television'' and the coverage of its 
test procedure are consistent with FTC's current rule. However, DOE 
determined not to cover very small models with screen sizes of 15 
inches or fewer in its procedure because consumers often do not use 
such devices as typical televisions.\10\
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    \6\ EPCA gives Commission no discretion to retain the ENERGY 
STAR procedure. 42 U.S.C. 6294(a)(2)(I).
    \7\ The new DOE test procedure triggers EPCA's reporting 
provisions, which require manufacturers to submit energy reports to 
the Commission derived from DOE test procedures for all new models 
and annually for models in current production. 42 U.S.C. 6296(b)(1) 
and (4). Consistent with the Rule's required reports for other 
covered products, the content for the television reports in the 
proposed amendments include brand name; model number; screen size 
(diagonal in inches); power (in watts) consumed in on mode, standby-
passive mode, in standby-active mode, low mode, and off mode; and 
annual energy consumption (kWh/year) for each basic model in current 
production.
    \8\ See https://www.regulations.doe.gov/ccms.
    \9\ Section 305.17 contains the television ranges.
    \10\ See 10 CFR 430.2 and App. H, sec. 1; 78 FR at 63825-63826. 
The proposed amendments also would delete obsolete Sec.  305.17(h), 
which contains specific labeling directions for televisions of nine 
inches or fewer. The Commission will consider revisions to the 
ranges in Sec.  305.17 once data based on the DOE test procedure 
becomes available.
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III. Paperwork Reduction Act

    The current Rule contains recordkeeping, disclosure, testing, and 
reporting requirements that constitute information collection 
requirements as defined by 5 CFR 1320.3(c), the definitional provision 
within the Office of Management and Budget (OMB) regulations that 
implement the Paperwork Reduction Act (PRA). OMB has approved the 
Rule's existing information collection requirements through February 
29, 2016 (OMB Control No. 3084 0069). The Commission accounted for the 
burden of testing and labeling televisions when it first issued the 
labeling requirements (76 FR 1038 (Jan. 6, 2011)). However, the new DOE 
test procedure triggers EPCA's requirement that manufacturers retest 
their televisions for any energy representations made 180 days after 
DOE publishes the test, including those on the FTC label. This creates 
an additional, one-time burden. In issuing the television labels, FTC 
staff estimated that 2,000 basic models exist in the marketplace, that 
manufacturers test two units per model, and that testing requires one 
hour per unit tested. Using these estimates, the Commission expects the 
new testing will require a one-time burden of 4,000 additional hours of 
burden. Annualized over a 3-year PRA clearance cycle, this one-time 
burden amounts to 1,333 hours. Assuming further that this testing will 
be implemented by electrical engineers, and applying an associated 
hourly wage rate of $44.14 per hour, labor costs for testing would 
annualized total of $58,839.\11\ In addition, the amendments would 
increase the Rule's reporting requirements. Staff estimates that the 
average reporting burden for these manufacturers is approximately two 
minutes per basic model to enter information into DOE's online 
database. Based on this estimate, multiplied by an estimated total of 
2,000 basic television models, the annual reporting burden for 
manufacturers is an estimated 67 hours (2 minutes x 2,000 models / 60 
minutes per hour). Assuming further that these filing requirements will 
be implemented by data entry workers at an hourly wage rate of $15.11 
per hour, the associated labor cost for recordkeeping would be 
approximately $1,012 per year.\12\ Any non-labor costs associated with 
the amendments are likely to be minimal.
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    \11\ See Bureau of Labor Statistics, U.S. Department of Labor, 
Occupational Employment and Wages--May 2012, Table 1 (National 
employment and wage data from the Occupational Employment Statistics 
survey by occupation, May 2012), available at: http://www.bls.gov/news.release/ocwage.t01.htm.
    \12\ See id.
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IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires 
that the Commission provide an Initial Regulatory Flexibility Analysis 
(IRFA) with a Proposed Rule and a Final Regulatory Flexibility Analysis 
(FRFA), if any, with the final Rule, unless the Commission certifies 
that the Rule will not have a significant economic impact on a 
substantial number of small entities.\13\
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    \13\ 5 U.S.C. 603-605.
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    The Commission does not anticipate that the Proposed Rule will have 
a significant economic impact on a substantial number of small 
entities. Consistent with past analysis (76 FR at 1049), the Commission 
estimates that these new requirements will apply to about 30 product 
manufacturers. Out of these companies, the Commission expects that no 
manufactures qualify as

[[Page 78307]]

small businesses.\14\ Furthermore, the Commission does not expect that 
the requirements specified in the Proposed Rule will have a significant 
impact on these entities. In addition, the Commission does not expect 
that the label design and other requirements specified in the Proposed 
Rule will have a significant economic impact on these entities.
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    \14\ See also 78 FR at 63838 (DOE's conclusion that no 
television manufacturers qualify as small businesses).
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    Accordingly, this document serves as notice to the Small Business 
Administration of the FTC's certification of no effect. To ensure the 
accuracy of this certification, however, the Commission requests 
comment on whether the Proposed Rule will have a significant impact on 
a substantial number of small entities, including specific information 
on the number of entities that would be covered by the Proposed Rule, 
the number of these companies that are ``small entities,'' under the 
RFA, and the average annual burden for each entity. Although the 
Commission certifies under the RFA that the Rule proposed in this 
Notice would not, if promulgated, have a significant impact on a 
substantial number of small entities, the Commission has determined, 
nonetheless, that it is appropriate to publish an IRFA in order to 
inquire into the impact of the Proposed Rule on small entities. 
Therefore, the Commission has prepared the following analysis:

A. Description of the Reasons That Action by the Agency Is Being Taken

    The Commission is proposing amendments to conform the Rule to a 
recently published DOE test procedure for televisions.

B. Statement of the Objectives of, and Legal Basis for, the Proposed 
Rule

    The objective of the Proposed Rule is to provide television energy 
use information to consumers. EPCA provides the Commission with 
authority to require energy disclosures for televisions and other 
consumer electronics.

C. Small Entities To Which the Proposed Rule Will Apply

    Under the Small Business Size Standards issued by the Small 
Business Administration, television manufacturers qualify as small 
businesses if they have fewer than 1,000 employees (for other household 
appliances the figure is 500 employees) or if their sales are less than 
$8.0 million annually. The Commission estimates that no manufacturers 
subject to the Proposed Rule qualify as small businesses. The 
Commission seeks comment and information with regard to the estimated 
number or nature of small business entities for which the Proposed Rule 
would have a significant economic impact

D. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    The Commission recognizes that the proposed rule will involve some 
increased costs related to reporting these products, and maintaining 
test records. All of these burdens and the skills required to comply 
are discussed in the previous section of this document, regarding the 
Paperwork Reduction Act, and there should be no difference in that 
burden as applied to small businesses. The Commission invites comment 
and information on these issues.

E. Duplicative, Overlapping, or Conflicting Federal Rules

    The Commission has not identified any other federal statutes, 
rules, or policies that would duplicate, overlap, or conflict with the 
Proposed Rule. The Commission invites comment and information on this 
issue.

F. Significant Alternatives to the Proposed Rule

    The Commission seeks comment and information on the need, if any, 
for alternative compliance methods that would reduce the economic 
impact of the Rule on such small entities. As one alternative to reduce 
burden, the Commission could delay the proposed Rule's reporting date 
to provide additional time for small business compliance. If the 
comments filed in response to this Notice identify small entities that 
would be affected by the Rule, as well as alternative methods of 
compliance that would reduce the economic impact of the Rule on such 
entities, the Commission will consider the feasibility of such 
alternatives and determine whether they should be incorporated into the 
final rule.

V. Request for Comments

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before February 10, 
2014. Write ``Television Labels, Matter No. R611004'' on your comment. 
Your comment--including your name and your state--will be placed on the 
public record of this proceeding, including, to the extent practicable, 
on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to 
remove individuals' home contact information from comments before 
placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, such as anyone's Social Security 
number, date of birth, driver's license number or other state 
identification number or foreign country equivalent, passport number, 
financial account number, or credit or debit card number. You are also 
solely responsible for making sure that your comment does not include 
any sensitive health information, such as medical records or other 
individually identifiable health information. In addition, do not 
include any ``[t]rade secret or any commercial or financial information 
which is . . . privileged or confidential,'' as discussed in Sec.  6(f) 
of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, do not include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c). Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/televisionlabels, by following the instruction on the web-based 
form. If this Notice appears at http://www.regulations.gov, you also 
may file a comment through that Web site.
    If you file your comment on paper, write ``Television Labels, 
Matter No. R611004'' on your comment and on the envelope, and mail or 
deliver it to the following address: Federal Trade Commission, Office 
of the Secretary, Room H-113 (Annex F), 600 Pennsylvania Avenue NW., 
Washington, DC 20580. If possible, submit your paper comment to the 
Commission by courier or overnight service.

[[Page 78308]]

    Visit the Commission Web site at http://www.ftc.gov to read this 
NPRM and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding, as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before February 10, 2014. You can find more 
information, including routine uses permitted by the Privacy Act, in 
the Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.
    Because written comments appear adequate to present the views of 
all interested parties, the Commission has not scheduled an oral 
hearing regarding these proposed amendments. Interested parties may 
request an opportunity to present views orally. If such a request is 
made, the Commission will publish a document in the Federal Register 
stating the time and place for such oral presentation(s) and describing 
the procedures that will be followed. Interested parties who wish to 
present oral views must submit a hearing request, on or before January 
15, 2014, in the form of a written comment that describes the issues on 
which the party wishes to speak. If there is no oral hearing, the 
Commission will base its decision on the written rulemaking record.

VI. Communications by Outside Parties to the Commissioners or Their 
Advisors

    Written communications and summaries or transcripts of oral 
communications respecting the merits of this proceeding, from any 
outside party to any Commissioner or Commissioner's advisor, will be 
placed on the public record. See 16 CFR 1.26(b)(5).

List of Subjects in 16 CFR Part 305

    Advertising, Energy conservation, Household appliances, Labeling, 
reporting and recordkeeping requirements.

Proposed Rule Language

    For the reasons set out above, the Commission proposes to amend 16 
CFR Part 305 as follows:

PART 305--ENERGY AND WATER USE LABELING FOR CONSUMER PRODUCTS UNDER 
THE ENERGY POLICY AND CONSERVATION ACT (``ENERGY LABELING RULE'')

0
1. The authority citation for Part 305 continues to read as follows:

    Authority: 42 U.S.C. 6294.

0
2. In Sec.  305.3, revise paragraph (y) and add paragraph (z) to read 
as follows:


Sec.  305.3  Description of covered products.

* * * * *
    (y) Television means a product that is designed to produce dynamic 
video, contains an internal TV tuner encased within the product 
housing, and is capable of receiving dynamic visual content from wired 
or wireless sources including but not limited to:
    (1) Broadcast and similar services for terrestrial, cable, 
satellite, and/or broadband transmission of analog and/or digital 
signals; and/or
    (2) Display-specific data connections, such as HDMI, Component 
video, Svideo, Composite video; and/or
    (3) Media storage devices such as a USB flash drive, memory card, 
or a DVD; and/or
    (4) Network connections, usually using Internet Protocol, typically 
carried over Ethernet or Wi-Fi.
    (z) The requirements of this part are limited to those televisions 
for which the Department of Energy has adopted and published test 
procedures for measuring energy use.
0
3. In Sec.  305.5, remove paragraph (d), redesignate paragraph (e) as 
paragraph (d), and revise newly redesignated paragraph (d) to read as 
follows:


Sec.  305.5  Determinations of estimated annual energy consumption, 
estimated annual operating cost, and energy efficiency rating, water 
use rate, and other required disclosure content.

* * * * *
    (d) Representations for ceiling fans under Sec.  305.13 and 
televisions under Sec.  305.17 must be derived from applicable 
procedures in 10 CFR parts 429, 430, and 431.
0
4. In Sec.  305.8, revise paragraph (a)(1); redesignate paragraph 
(a)(3) as paragraph (a)(4); add new paragraph (a)(3), and revise newly 
redesignated paragraph (a)(4) and paragraph (b)(1) to read as follows:


Sec.  305.8  Submission of data.

    (a)(1) Except as provided in paragraphs (a)(2) through (4) of this 
section, each manufacturer of a covered product subject to the 
disclosure requirements of this part and subject to Department of 
Energy certification requirements in 10 CFR part 429 shall submit 
annually a report for each model in current production containing the 
same information that must be submitted to the Department of Energy 
pursuant to 10 CFR part 429 for that product, and that the Department 
has identified as public information pursuant to 10 CFR part 429. In 
lieu of submitting the required information to the Commission as 
required by this section, manufacturers may submit such information to 
the Department of Energy via the Compliance and Certification 
Management System (CCMS) at https://regulations.doe.gov/ccms as 
provided by 10 CFR 429.12.
* * * * *
    (3) Manufacturers of televisions shall submit annually a report 
containing the brand name; model number; screen size (diagonal in 
inches); power (in watts) consumed in on mode, standby-passive mode, in 
standby-active mode, low mode, and off mode; and annual energy 
consumption (kWh/year) for each basic model in current production. The 
report should also include a starting serial number, date code, or 
other means of identifying the date of manufacture with the first 
submission for each basic model. In lieu of submitting the required 
information to the Commission as required by this section, 
manufacturers may submit such information to the Department of Energy 
via the Compliance and Certification Management System (CCMS) at 
https://regulations.doe.gov/ccms as provided by 10 CFR 429.12.
    (4) This section does not require reports for general service 
light-emitting diode (LED or OLED) lamps.
    (b)(1) All data required by Sec.  305.8(a) except serial numbers 
shall be submitted to the Commission annually, on or before the 
following dates:

------------------------------------------------------------------------
                                                  Deadline  for data
              Product category                        submission
------------------------------------------------------------------------
Refrigerators..............................  Aug. 1.
Refrigerators-freezers.....................  Aug. 1.
Freezers...................................  Aug. 1.
Central air conditioners...................  July 1.
Heat pumps.................................  July 1.
Dishwashers................................  June 1.
Water heaters..............................  May 1.
Room air conditioners......................  July 1.
Furnaces...................................  May 1.
Pool heaters...............................  May 1.
Clothes washers............................  Oct. 1.
Fluorescent lamp ballasts..................  Mar. 1.
Showerheads................................  Mar. 1.
Faucets....................................  Mar. 1.
Water closets..............................  Mar. 1.
Ceiling fans...............................  Mar. 1.
Urinals....................................  Mar. 1.
Metal halide lamp fixtures.................  Sept. 1.
General service fluorescent lamps..........  Mar. 1.
Medium base compact fluorescent lamps......  Mar. 1.
General service incandescent lamps.........  Mar. 1.
Televisions................................  May 1.
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* * * * *


Sec.  305.17  [Amended]

0
5. In Sec.  305.17, remove paragraph (h).


[[Page 78309]]


    By direction of the Commission.

Donald S. Clark,
Secretary.
[FR Doc. 2013-30633 Filed 12-24-13; 8:45 am]
BILLING CODE 6750-01-P