[Federal Register Volume 81, Number 94 (Monday, May 16, 2016)]
[Rules and Regulations]
[Pages 30157-30163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11469]



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Rules and Regulations
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Federal Register / Vol. 81, No. 94 / Monday, May 16, 2016 / Rules and 
Regulations

[[Page 30157]]



DEPARTMENT OF ENERGY

10 CFR Parts 429 and 430

[Docket No. EERE-2015-BT-CRT-0013]
RIN 1904-AD53


Energy Conservation Program: Exempt External Power Supplies Under 
the EPS Service Parts Act of 2014

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: On November 18, 2015, the U.S. Department of Energy (``DOE'') 
issued a notice of proposed rulemaking to exempt certain types of 
external power supplies consistent with the EPS Service Parts Act of 
2014. That proposal, which serves as the basis for this final rule, 
explained that the Act exempted certain EPSs made available by a 
manufacturer as a service or spare part from the energy conservation 
standards promulgated in a February 2014 final rule. The proposal 
sought to codify this exemption and certain related reporting 
requirements. This rule adopts the November 2015 proposal along with 
related provisions to require manufacturers to annually report the 
total units of exempt EPSs shipped as service and spare parts that fail 
to meet the appropriate energy conservation standards.

DATES: The effective date of this rule is June 15, 2016.

ADDRESSES: The docket, which includes Federal Register notices, 
comments, and other supporting documents/materials, is available for 
review at regulations.gov. All documents in the docket are listed in 
the regulations.gov index. However, some documents listed in the index, 
such as those containing information that is exempt from public 
disclosure, may not be publicly available.
    A link to the docket Web page can be found at: http://www1.eere.energy.gov/buildings/appliance_standards/product.aspx?productid=23. This Web page will contain a link to the 
docket for this rulemaking on the regulations.gov site. The 
regulations.gov Web page will contain simple instructions on how to 
access all documents, including public comments, in the docket.
    For further information on how to review the docket, contact Ms. 
Brenda Edwards at (202) 586-2945 or by email: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Direct requests for additional 
information may be sent to Mr. Jeremy Dommu, U.S. Department of Energy, 
Office of Energy Efficiency and Renewable Energy, Building Technologies 
Program, EE-2J, 1000 Independence Avenue SW., Washington, DC 20585-
0121. Telephone: (202) 586-9870. Email: 
[email protected]ov.
    For legal issues, please contact Mr. Michael Kido, U.S. Department 
of Energy, Office of the General Counsel, GC-33, 1000 Independence 
Avenue SW., Washington, DC 20585-0121. Telephone: (202) 586-8145. 
Email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Authority and Background
II. Synopsis of the Final Rule
III. Discussion
    A. Codifying the Exemption in the CFR
    B. Service or Spare Part EPSs
    C. Sales Reporting Requirements
IV. Procedural Issues and Regulatory Review
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 12630
    J. Review Under Treasury and General Government Appropriations 
Act, 2001
    K. Review Under Executive Order 13211
    L. Review Under Section 32 of the Federal Energy Administration 
Act of 1974
    M. Congressional Notification
V. Approval of the Office of the Secretary

I. Authority and Background

    Title III of the Energy Policy and Conservation Act of 1975 (42 
U.S.C. 6291, et seq.; ``EPCA'' or, in context, ``the Act'') sets forth 
a variety of provisions designed to improve energy efficiency.\1\ Part 
B \2\ of Title III establishes the ``Energy Conservation Program for 
Consumer Products Other Than Automobiles.'' External power supplies are 
among the products affected by these provisions.
---------------------------------------------------------------------------

    \1\ All references to EPCA refer to the statute as amended 
through the Energy Efficiency Improvement Act, Public Law 114-11 
(April 30, 2015).
    \2\ For editorial reasons, Part B was redesignated as Part A 
upon incorporation into the U.S. Code (42 U.S.C. 6291-6309, as 
codified).
---------------------------------------------------------------------------

    Under EPCA, the energy conservation program consists essentially of 
four parts: (1) Testing, (2) labeling, (3) Federal energy conservation 
standards, and (4) certification and enforcement procedures. The 
testing requirements consist of test procedures that manufacturers of 
covered products must use as the basis for (1) certifying to DOE that 
their products comply with the applicable energy conservation standards 
adopted under EPCA, and (2) making representations about the efficiency 
of those products. Similarly, DOE must use these test procedures to 
determine whether the products comply with any relevant standards 
promulgated under EPCA.

Background

    Section 301 of EISA 2007 established minimum energy conservation 
standards for Class A external power supplies (``EPSs'') manufactured 
on or after July 1, 2008. (42 U.S.C. 6295(u)(3)(A)). See 42 U.S.C. 
6291(36)(C)(i)-(ii). EISA 2007 exempts Class A EPSs from meeting these 
statutorily-prescribed standards if the devices were manufactured 
before July 1, 2015, and made available by the manufacturer as service 
parts or spare parts for end-use consumer products that were 
manufactured prior to July 1, 2008. (42 U.S.C. 6295(u)(3)(B)) Congress 
created this limited (and temporary) exemption as part of a broad range 
of amendments to EPCA under EISA 2007. The provision did not grant DOE 
with the authority to expand or extend the length of this exemption and 
Congress did not grant DOE with the general authority to exempt any 
already covered

[[Page 30158]]

product from the requirements set by Congress.
    After releasing a preliminary analysis and issuing a proposed set 
of energy conservation standards, DOE published a final rule 
prescribing new standards for non-Class A EPSs and amended standards 
for some Class A EPSs. See 79 FR 7846 (February 10, 2014). These new 
standards, commonly referred to as Level VI efficiency standards 
because EPSs subject to these standards are required to be marked with 
the Roman numeral VI according to the External Power Supply 
International Efficiency Marking Protocol, apply to products 
manufactured on or after February 10, 2016. When DOE published the 
rule, it did not have the authority to provide manufacturers with an 
exemption for EPSs manufactured after to the compliance date of these 
new standards if they were made available as service or spare parts to 
end-use consumer products. Accordingly, despite requests from some 
commenters who responded to DOE's proposed standards by asking for such 
an exemption, DOE could provide no such relief as part of that final 
rule.
    On December 18, 2014, Congress enacted the EPS Service Parts Act of 
2014 (``Service Parts Act''). That law exempted manufacturers of 
certain EPSs that are made available as service and spare parts for 
end-use products manufactured before February 10, 2016 from the energy 
conservation standards that DOE promulgated in its February 2014 rule. 
To be exempt under the Service Parts Act, an EPS must meet four 
separate criteria. Specifically, the EPS must be: (i) Manufactured 
during the period beginning on February 10, 2016, and ending on 
February 10, 2020; (ii) marked in accordance with the External Power 
Supply International Efficiency Marking Protocol; (iii) compliant, 
where applicable, with the standards for Class A EPSs and certified to 
DOE as meeting at least International Efficiency Level IV; and (iv) 
made available by the manufacturer as a service part or spare part for 
an end-use product manufactured before February 10, 2016.
    Additionally, the Service Parts Act permits DOE to require 
manufacturers of an EPS that is exempt from the 2016 standards to 
report to DOE the total number of such EPS units that are shipped 
annually as service and spare parts and that do not meet those 
standards. See 42 U.S.C. 6295(u)(5)(A)(ii). DOE may also limit the 
applicability of the exemption if the Secretary determines that the 
exemption is resulting in a significant reduction of the energy savings 
that would result in the absence of the exemption. See 42 U.S.C. 
6295(u)(5)(A)(iii). Finally, the statute authorizes DOE to provide a 
similar exemption for EPSs from future energy conservation standards.
    On November 18, 2015, DOE published a notice of proposed rulemaking 
(``NOPR'') proposing to codify the provisions of the EPS Service Parts 
Act of 2014 within the Code of Federal Regulations (``CFR'') and 
solicited comment from the public. 80 FR 71984. As part of the NOPR, 
DOE sought comment on a number of specific issues including: How 
manufacturers produce spare or service parts as compared to how 
manufacturers produce EPS units provided with a new product, the 
specific language that should be codified regarding the exemption of 
certain EPSs sold as service or spare parts, and the reporting 
timeframe for importers and domestic manufacturers to report the total 
number of units sold in the prior year. DOE analyzed all of the 
comments received from the list of commenters in Table I-1 in response 
to the 2015 NOPR and incorporated recommendations, where appropriate, 
into this final rule.
---------------------------------------------------------------------------

    \3\ DOE notes that ITI also filed supplemental comments after 
the comment period had closed. These comments, which re-emphasized 
various points ITI had already made in its timely-filed joint 
comments with AHAM, were not considered by DOE in finalizing this 
rule due to their untimely nature.

                      Table I-1--List of Commenters
------------------------------------------------------------------------
              Organization                         Abbreviation
------------------------------------------------------------------------
Appliance Standards Awareness Project,   ASAP, et al.
 National Resources Defense Council,
 and American Council for an Energy
 Efficient Economy.
Association of Home Appliance            AHAM, et al.
 Manufacturers, Consumer Electronics
 Association, Information Technology
 Council, and National Electrical
 Manufacturers Association.
Information Technology Council \3\.....  ITI
California Investor Owned Utilities....  CA IOUs
------------------------------------------------------------------------

II. Synopsis of the Final Rule

    DOE is incorporating the statutory provisions described in this 
preamble into its regulations. DOE is also providing some clarification 
on the circumstances under which EPSs would be considered spare or 
service parts. Lastly, DOE is requiring manufacturers who manufacture 
1,000 or more exempt EPSs to annually report to DOE the total number of 
units of exempt EPSs shipped as service and spare parts that do not 
meet the 2016 standards.

III. Discussion

A. Codifying the Exemption in the CFR

    DOE is incorporating the provisions of the Service Parts Act into 
10 CFR 430.32 to ensure that the regulations reflect the statutory 
exemption and that interested parties are able to readily access the 
content of this new statutory provision. Additionally, since the 
exemption from the Class A (Level IV) standards for certain EPSs that 
are made available as service and spare parts expired on June 30, 2015, 
DOE is also removing the text related to this now-expired exemption 
from 10 CFR 4320.32(w)(2), and replacing it with the new provisions of 
the Service Parts Act that exempt certain EPSs from the new and amended 
direct operation (Level VI) standards.

B. Service or Spare Part EPSs

    In the NOPR, DOE explained that the Service Parts Act provides an 
exemption for certain EPSs that are made available by manufacturers as 
service or spare parts. DOE observed that most end-use products that 
use EPSs are sold with the EPS that is necessary to operate that 
product. DOE proposed that, in applying the statutory exemption, an EPS 
that is sold with an end-use product would not be considered to be a 
service or spare part. However, DOE noted that, in its view, any EPS 
sold separately from an end-use product, including an EPS made 
available as a replacement for, or in addition to, the EPS originally 
sold with an end-use product, would be considered an EPS made available 
as a service or spare part--which would make that EPS potentially 
eligible to be exempt from the 2016 standards under the Service Parts 
Act.
    To further clarify its application of this statutory exemption, DOE 
proposed that only those EPSs that are made available as service or 
spare parts for end-use products that were manufactured before February 
10, 2016 (the date that manufacturers must comply with the new and 
amended standards for direct operation EPSs) would qualify for the 
exemption. DOE proposed, accordingly, that if an EPS is made available 
as a service part or spare part for any end-use product that continues 
to be manufactured after February 10, 2016, or is sold with any end-use 
product manufactured after that date, that EPS would not be eligible 
for the exemption.

[[Page 30159]]

    In the NOPR, DOE further recognized that many EPSs, like those that 
use an industry standard communication protocol, such as the universal 
serial bus (``USB''), may be capable of operating many different end-
use products. To apply the statutory exemption to the ``basic model'' 
concept used in its regulatory scheme, DOE proposed that the exemption 
would apply to an EPS basic model that a manufacturer makes available 
only as a service part or a spare part for an end-use product that was 
manufactured before February 10, 2016, and would not apply to an EPS 
basic model that a manufacturer makes available as a service part or 
spare part for end-use products that continue to be manufactured after 
February 10, 2016. Thus, an EPS basic model would be exempt from the 
2016 Level VI standard if, among other criteria, it is made available 
by the manufacturer only as a service part or a spare part for an end-
use product, and only if the end-use product was manufactured before 
February 10, 2016. DOE sought comment on this proposal from 
stakeholders and interested parties.
    ASAP, et al. supported DOE's efforts to construct a narrowly-
defined exemption for EPSs offered as service or spare parts to aid in 
limiting the sale of a larger number of EPSs than warranted by the 
intent of the law, stating that ``abuse of the exemption could 
significantly reduce energy savings from the EPS standards.'' (ASAP, et 
al., No. 2 at p.2) AHAM, et al. also expressed support for DOE's 
proposal in their comments noting that ``this is a sensible exemption 
that will allow manufacturers to maintain supplies of replacement parts 
for older equipment and will also allow warranty and contract 
compliance by manufacturers, as well as manufacturer compliance with 
state parts retention laws.'' (AHAM, et al., No. 3 at p.1)
    Similarly, ASAP, et al. strongly supported DOE's interpretation 
that the exemption should not apply to EPSs made available as spare or 
service parts that are sold with products manufactured after February 
10, 2016. ASAP, et al. asserted that the redesign of EPSs for products 
manufactured afterward is justified because an EPS that is sold with a 
product manufactured after February 10, 2016, would already be required 
to meet the new standards, and thus it does not create undue burden on 
industry to ensure that EPSs made available as spare or service parts 
for those same end-use products also comply with the new standards. 
(ASAP, et al., No. 2 at p.3) The CA IOUs agreed that any spare or 
service EPS for products manufactured after the compliance date should 
comply with the 2016 standards because redesigning an EPS or designing 
a substitute EPS to comply with the standards would not be a 
significant burden for manufacturers to meet. (CA IOUs, No. 5 at p.2) 
The CA IOUs also supported DOE's interpretation that the exemption 
would not apply to EPSs that are sold as spare or service parts but are 
capable of operating end-use products manufactured both before and 
after the compliance date. In their collective view, meeting the 2016 
standard would not be an undue burden for manufacturers to meet. (CA 
IOUs, No. 5 at p.2)
    ITI disagreed. In its view, the Service Parts Act exemption should 
apply to all EPSs made available as spare or service parts for end-use 
products manufactured prior to the 2016 compliance date. (ITI, No. 4 at 
p.1) It argued that DOE's proposed clarification would deny this 
exemption to many USBs and other EPSs capable of operating multiple 
end-use products contrary to the required exemption of the Service 
Parts Act. ITI further claimed that the apparent reduction in scope of 
the exemption provides insufficient notice to manufacturers as they 
were anticipating the exemption to reflect what they believed would be 
the clear language and scope of the enacted law. (ITI, No. 4 at p.2)
    In the NOPR, DOE misstated in one place that, if an EPS is capable 
of operating multiple end-use products, some of which were manufactured 
before February 10, 2016, and some of which were manufactured after 
February 10, 2016, then that EPS would not be eligible for the service 
and spare part exemption since the EPS can operate an end-use product 
manufactured after February 10, 2016. 80 FR at 71986. DOE understands 
that this statement in the preamble may have caused confusion. The 
exemption as DOE proposed in the NOPR, would apply to an EPS basic 
model that is ``made available by the manufacturer only as a service 
part or a spare part for an end-use product.'' Id. at 71990 (emphasis 
added). DOE clarifies, and this rule establishes, that an EPS that is 
capable of operating end-use products manufactured on or after February 
10, 2016, could be exempt, provided that the manufacturer makes the 
relevant basic model available only as a service part or spare part for 
end-use products manufactured before February 10, 2016.
    Given the nature of DOE's regulatory scheme, under which the non-
compliance of a product is determined on a basic model, not unit-by-
unit, basis, this final rule offers a reasonable approach in applying 
the Service Parts Act's exemption. See 10 CFR 429.114. Applied 
otherwise, a basic model of EPS would be wholly exempt (i.e., all units 
of the basic model) from the Level VI standard based solely on the fact 
that as few as one unit of the basic model was made available by the 
manufacturer as a service part or a spare part for an end-use product 
manufactured before February 10, 2016. DOE declines to adopt an 
interpretation of the statutory exemption that would offer a blanket 
exemption to such a basic model.
    Therefore, DOE is finalizing its proposal that this exemption would 
apply to an EPS basic model that a manufacturer makes available only as 
a service part or a spare part for an end-use product that was 
manufactured before February 10, 2016, and would not apply to an EPS 
basic model that a manufacturer makes available as a service part or 
spare part for end-use products that continue to be manufactured after 
February 10, 2016.

C. Sales Reporting Requirements

    The Service Parts Act permits DOE to require manufacturers of an 
EPS that is exempt from the 2016 standards to report to DOE the total 
number of such EPS units that are shipped annually as service and spare 
parts and that do not meet those standards. See 42 U.S.C. 
6295(u)(5)(A)(ii). DOE stated that it considered the ``shipments'' 
referred to in the statute to be those units sold by either the 
importer or the domestic manufacturer, and that because importers could 
have both incoming and outgoing shipments, DOE considered ``units 
sold'' to be clearer than ``units shipped.'' See 42 U.S.C. 6291(12) 
(under EPCA, ``manufacture'' means ``to manufacture, produce, assemble 
or import'').
    Accordingly, consistent with the Service Parts Act, DOE proposed 
that importers and domestic manufacturers of EPSs that are exempt under 
the Service Parts Act would be required to report annually to DOE the 
total number of exempt EPS units that were sold during the most recent 
12-calendar-month period ending on July 31 that do not meet the 2016 
standards. 80 FR at 71986. DOE received no comments specifically with 
regard to the use of the word ``sold'' as opposed to ``shipped'' in 
this context, and will use the word ``sold'' in its reporting 
requirement, as proposed in the NOPR.
    DOE explained in the NOPR that many of the EPSs sold as spare and 
service parts are Class A EPSs and they continue to be subject to the 
current Class A EPS standards (i.e. Level IV) set

[[Page 30160]]

forth in 10 CFR 430.32(w)(1)(i). As such, manufacturers of any basic 
model of a Class A EPS must already submit an annual certification 
report to DOE. See 10 CFR 429.12. Moreover, the Service Parts Act 
requires that an EPS must be certified to DOE as meeting Level IV 
standards in order to qualify for the exemption. Therefore, DOE 
proposed that each manufacturer of exempt Class A EPSs include in its 
annual report certifying compliance with Level IV standards the number 
of units of each individual model of such EPS it sold in the preceding 
year that do not meet the Level VI standards.
    Similarly, DOE proposed to require each importer or domestic 
manufacturer of non-Class A EPSs that are exempted by the Service Parts 
Act and do not meet the 2016 standards to submit an annual report of 
the corresponding number of units of each individual model of such EPS 
that the importer or domestic manufacturer sold in the prior year. 
These non-Class A EPSs include multiple-voltage EPSs, high-power EPSs, 
and some EPSs used to operate end-use products that are motor-driven. 
Under DOE's February 2014 final rule, non-Class A EPSs, unless exempt, 
are required to meet the Level VI standards starting in 2016. These 
non-class A EPSs would not be certified under the provisions of 10 CFR 
429.12 (General requirements applicable to certification reports), if 
they are exempt, but under DOE's proposal, manufacturers of these EPSs 
would be required to submit a report including the number of exempt 
EPSs sold.
    Separately, the Service Parts Act authorizes DOE to limit the 
applicability of the service and spare part exemption if DOE determines 
that the exemption is resulting in a significant reduction of the 
energy savings that would otherwise result from the final rule. See 42 
U.S.C. 6295(u)(5)(A)(iii). Having information regarding the number of 
exempt units sold would aid DOE in making this determination.
    ASAP, et al. noted that reporting is vital to DOE's ability to 
assess the impact of the EPS Service Parts Act of 2014 on the energy 
savings projected by the 2014 standards and supported DOE's proposal to 
extend the reporting requirements to non-Class A EPSs that are subject 
to federal efficiency standards. (ASAP, et al., No. 2 at p.3) The CA 
IOUs also supported DOE's proposals, noting that ensuring applicable 
EPS units that are subject to current efficiency requirements continue 
to meet these standards would prevent potential backsliding and an 
accompanying loss of energy savings. The CA IOUs also strongly 
supported having domestic manufacturers and importers report to DOE the 
total number of exempt EPS units sold on an annual basis to help ensure 
that energy savings from the 2014 standards are realized. (CA IOUs, No. 
5 at p.2)
    AHAM, et al., however, expressed concern over DOE's reporting 
requirement proposals. AHAM, et al. noted that most companies have low 
shipment volumes of spare and service parts for products manufactured 
prior to the compliance date and that the cost of reporting these data 
would outweigh the data collection efforts on a per model basis. 
Alternatively, AHAM, et al. recommended that DOE modify its reporting 
requirements to simplify the requirements to one report per 
manufacturer rather than one report per model and only require a report 
submission if the quantity of service and spare part EPSs exceeds 1,000 
units. (AHAM, et al., No. 3 at p.2) AHAM, et al. concluded by stating 
its belief that the reporting requirements proposed by DOE exceed the 
authority granted by the EPS Service Parts Act of 2014 and recommended 
that the reporting requirements be limited to unit shipment volumes as 
permitted under the Service Parts Act. (AHAM, et al., No. 3 at p.3)
    Reporting requirements in this instance serve a variety of 
important and useful roles, among which include helping DOE assess the 
impacts of the Service Parts Act's exemption on overall national energy 
savings. Notwithstanding this fact, DOE recognizes that reporting 
requirements may create a burden and has modified its proposal from the 
NOPR to allow manufacturers or domestic importers to report the total 
annual number of exempt EPSs sold as spare or service parts rather than 
requiring individual reporting on a per model basis, as suggested by 
AHAM. Under DOE's revised reporting methodology, manufacturers or 
importers would only need to track and report the total number of 
exempt EPSs sold.
    DOE also recognizes the reporting burdens for manufacturers that 
sell only a small number of exempt units. Accordingly, consistent with 
the authority provided to DOE by the Service Parts Act, DOE will adopt 
AHAM's suggestion and relieve manufacturers from the sales reporting 
requirements contained in this final rule provided that the quantity of 
exempt service and spare part EPSs sold by that manufacturer does not 
exceed 1,000 units annually. This 1,000 unit threshold will apply to 
the total number of exempt EPSs sold annually by that manufacturer 
(including importers) in aggregate and not on a per model basis. 
Consequently, a manufacturer would not be exempt from the reporting 
requirements if it sells more than one exempt model of EPS, each of 
which it sells less than 1,000 of annually, but, in aggregate, the 
total number of exempt EPSs sold by that manufacturer exceeds 1,000 
across all models. DOE is modifying the regulatory text in the CFR to 
reflect this approach.

IV. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    The Office of Management and Budget (``OMB'') has determined that 
certification rulemakings do not constitute ``significant regulatory 
actions'' under section 3(f) of Executive Order 12866, Regulatory 
Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this 
action was not subject to review under the Executive Order by the 
Office of Information and Regulatory Affairs (``OIRA'') in the Office 
of Management and Budget.

B. 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 (``IFRA'') 
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. 
As required by Executive Order 13272, ``Proper Consideration of Small 
Entities in Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE 
published procedures and policies on February 19, 2003, to ensure that 
the potential impacts of its rules on small entities are properly 
considered during the DOE rulemaking process. 68 FR 7990. DOE has made 
its procedures and policies available on the Office of the General 
Counsel's Web site: http://energy.gov/gc/office-general-counsel.
    For manufacturers of EPSs, the Small Business Administration 
(``SBA'') has set a size threshold, which defines those entities 
classified as ``small businesses'' for the purposes of the statute. DOE 
used the SBA's small business size standards to determine whether any 
small entities would be subject to the requirements of the rule. 65 FR 
30836, 30848 (May 15, 2000), as amended at 65 FR 53533, 53544 
(September 5, 2000) and codified at 13 CFR part 121. The size standards 
are listed by North American Industry Classification System (``NAICS'') 
code and industry description and are available at http://

[[Page 30161]]

www.sba.gov/content/summary-size-standards-industry. EPS manufacturing 
is classified under NAICS 335999, ``All Other Miscellaneous Electrical 
Equipment and Component Manufacturing.'' The SBA sets a threshold of 
500 employees or less for an entity to be considered as a small 
business for this category. As a preliminary matter, DOE notes that 
there are no domestic manufacturers of EPSs. Consequently, there are no 
small business impacts to evaluate for purposes of the Regulatory 
Flexibility Act.
    Notwithstanding the absence of domestic EPS manufacturers, DOE 
reviewed this final rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. This final rule would incorporate into DOE's regulations a 
statutorily-prescribed exemption affecting EPSs that manufacturers make 
available as service or spare parts. The exemption allows manufacturers 
to maintain and distribute supplies of replacement parts for older 
equipment without needing to meet the EPS energy conservation standards 
that have applied since February 10, 2016. This exemption provides 
manufacturers with flexibility in meeting their warranty and contract 
obligations in cases where service or spare parts require an EPS. It 
also relieves manufacturers of the burdens of redesigning and 
certifying EPSs used for end-use products that are no longer 
manufactured, which DOE anticipates will save these manufacturers from 
any significant expenses that would otherwise be used solely to support 
products that are no longer in production. As for the reporting 
requirements, DOE is, consistent with comments received from industry 
participants, adopting an approach that requires only manufacturers who 
sell 1,000 or more exempt EPSs to report its shipped units--an amount 
that will considerably lessen any small business-related impacts.
    Consistent with its prior incorporation of the previous statutory 
exemption added by Congress for Class A EPSs made available as service 
and spare parts, see 10 CFR 430.32(w)(2) (2015), DOE expects any 
potential impact from its requirement to be minimal. For these reasons, 
DOE certifies that the final rule would not have a significant economic 
impact on a substantial number of small entities. Accordingly, DOE has 
not prepared a regulatory flexibility analysis for this rulemaking. DOE 
will transmit the certification and supporting statement of factual 
basis to the Chief Counsel for Advocacy of the SBA for review under 5 
U.S.C. 605(b).

C. Review Under the Paperwork Reduction Act of 1995

    This rule revises an existing information collection. This 
information collection request contains:
    (1) OMB Control Number: 1910-1400.
    (2) Information Collection Request Title: Certification Reports, 
Compliance Statements, Application for a Test Procedure Waiver, and 
Recordkeeping for Consumer Products and Commercial/Industrial Equipment 
Subject to Energy or Water Conservation Standards.
    (3) Type of Request: Revision of a Currently Approved Collection.
    (4) Purpose: This notice will require external power supply 
manufacturers to report the number of exempt EPS units sold as part of 
the annual certification report, which is already required. The annual 
certification report must be submitted via CCMS, an electronic system 
for recording and processing certification submissions.
    Manufacturers of EPSs must certify to DOE that their products 
comply with any applicable energy conservation standards. In certifying 
compliance, manufacturers must test their products according to the DOE 
test procedures for EPSs including any amendments adopted for those 
test procedures. DOE has established regulations for the certification 
and recordkeeping requirements for all covered consumer products and 
commercial equipment, including external power supplies. See 10 CFR 
part 429, subpart B. The collection-of-information requirement for 
certification and recordkeeping is subject to review and approval by 
OMB under the Paperwork Reduction Act (``PRA''). This requirement has 
been approved by OMB under OMB Control Number 1910-1400. Public 
reporting burden for the proposed certification requirement is 
estimated to average 30 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    In this final rule, DOE is finalizing requirements for external 
power supply manufacturers to provide the total number of exempt EPS 
units sold as service and spare parts for which the manufacturer is 
claiming exemption from the current standards. The following are DOE's 
estimates, revised from the value originally proposed in the NOPR, of 
the time for manufacturers to collect, organize and store the data 
required by this final rule. As part of this final rule, manufacturers 
will not be required to provide the total number of exempt EPS units 
sold for each basic model, and instead will only provide the total 
number of exempt EPSs sold by that manufacturer. Additionally, 
manufacturers who sell under 1,000 exempt EPSs will be exempt from 
reporting requirements. Accordingly, DOE anticipates the impact in 
burden hours will be reduced from the estimates provided in the NOPR. 
DOE has increased the cost estimate for the NOPR to a fully burdened 
labor rate of $100 per hour, consistent with other certification 
requirements, to account for any skilled labor that may be required. 
DOE has revised its burden estimates to be consistent with the 
amendments being adopted in this final rule for reporting. DOE is 
showing the burden estimates for the individual amendments being 
adopted today and for the information collection as a whole.
    Affected Public with respect to this final rule: Manufacturers of 
external power supplies that are claiming the spare parts exemption.
    Estimated Number of Impacted Manufacturers: 228.
    Estimated Time per Record: 4 minutes.
    Estimated Total Annual Burden Hours: 15.2 hours.
    Estimated Total Annual Cost to Manufacturers: $1520.
    After adding the values for this final rule to the existing 
information collection requirements, the following totals reflect the 
information collection as a whole:
    (5) Annual Estimated Number of Respondents: 2000.
    (6) Annual Estimated Number of Total Responses: 20,000.
    (7) Annual Estimated Number of Burden Hours: 68,015.2 hours.
    (8) Annual Estimated Reporting and Recordkeeping Cost Burden: 
$6,801,520.
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

D. Review Under the National Environmental Policy Act of 1969

    DOE has determined that this final rule, which would incorporate a 
recently-enacted exemption into the CFR for EPSs sold as spare or 
service parts, 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

[[Page 30162]]

seq.) and DOE's implementing regulations at 10 CFR part 1021. 
Specifically, this final rule would adopt changes to the manner in 
which certain covered equipment would be certified and/or reported, 
which would not affect the amount, quality or distribution of energy 
usage, and, therefore, would not result in any environmental impacts. 
Thus, this rulemaking is covered by Categorical Exclusion A6 
(Procedural Rulemaking) under 10 CFR part 1021, subpart D. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on 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 it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this final rule and has 
determined that it would 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 that are the subject of this final 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.

F. Review Under Executive Order 12988

    Regarding the review of existing regulations and the promulgation 
of new regulations, section 3(a) of Executive Order 12988, ``Civil 
Justice Reform,'' 61 FR 4729 (February 7, 1996), 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; (3) provide a clear legal standard for affected 
conduct rather than a general standard; and (4) promote simplification 
and burden reduction. 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 
sections 3(a) and 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, 
the final rule meets the relevant standards of Executive Order 12988.

G. 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 likely to result 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 ``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 them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. 62 FR 12820. DOE's policy statement is also available at 
http://energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.
    DOE examined this final rule according to UMRA and its statement of 
policy and determined that the 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.

H. 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 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.

I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' 53 FR 8859 (March 18, 1988), that this rule would not result 
in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under 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 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 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 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.

K. 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 promulgates or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant

[[Page 30163]]

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 should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use.
    This regulatory action to amend the existing certification 
requirements for EPSs sold as spare parts is not a significant 
regulatory action under Executive Order 12866. 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. Therefore, it is not a significant energy 
action, and, accordingly, DOE has not prepared a Statement of Energy 
Effects.

L. Review Under Section 32 of the Federal Energy Administration Act of 
1974

    Under section 301 of the Department of Energy Organization Act 
(Public Law 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of 
the Federal Energy Administration Act of 1974, as amended by the 
Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 
788; FEAA) Section 32 essentially provides in relevant part that, where 
a proposed rule authorizes or requires use of commercial standards, the 
notice of proposed rulemaking must inform the public of the use and 
background of such standards. In addition, section 32(c) requires DOE 
to consult with the Attorney General and the Chairman of the Federal 
Trade Commission (``FTC'') concerning the impact of the commercial or 
industry standards on competition. This proposal to amend the 
certification requirements for all covered consumer products does not 
propose the use of any commercial standards.

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).

V. Approval of the Office of the Secretary

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

List of Subjects

10 CFR Part 429

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Reporting and recordkeeping 
requirements.

10 CFR Part 430

    Administrative practice and procedure, Confidential business 
information, Energy conservation, Household appliances, Imports, 
Intergovernmental relations, Small businesses.

    Issued in Washington, DC, on May 6, 2016.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and 
Renewable Energy.

    For the reasons stated in the preamble, DOE amends parts 429 and 
430 of chapter II of title 10, Code of Federal Regulations as set forth 
below:

PART 429--CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER 
PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT

0
1. The authority citation for part 429 continues to read as follows:

    Authority: 42 U.S.C. 6291-6317.

0
2. Section 429.37 is amended by adding paragraphs (b)(3) and (c) to 
read as follows:


Sec.  429.37  External power supplies.

* * * * *
    (b) * * *
    (3) Pursuant to Sec.  429.12(b)(13), a certification report for 
external power supplies that are exempt from the energy conservation 
standards at Sec.  430.32(w)(1)(ii) pursuant to Sec.  430.32(w)(2) of 
this chapter must include the following additional information if, in 
aggregate, the total number of exempt EPSs sold as spare and service 
parts by the certifier exceeds 1,000 units across all models: The total 
number of units of exempt external power supplies sold during the most 
recent 12-calendar-month period ending on July 31, starting with the 
annual report due on September 1, 2017.
    (c) Exempt external power supplies. (1) For external power supplies 
that are exempt from energy conservation standards pursuant to Sec.  
430.32(w)(2) of this chapter and are not required to be certified 
pursuant to Sec.  429.12(a) as compliant with an applicable standard, 
the importer or domestic manufacturer must, no later than September 1, 
2017, and annually by each September 1st thereafter, submit a report 
providing the following information if, in aggregate, the total number 
of exempt EPSs sold as spare and service parts by the importer or 
manufacturer exceeds 1,000 units across all models:
    (i) The importer or domestic manufacturer's name and address;
    (ii) The brand name; and
    (iii) The number of units sold during the most recent 12-calendar-
month period ending on July 31.
    (2) The report must be submitted to DOE in accordance with the 
submission procedures set forth in Sec.  429.12(h).

PART 430--ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS

0
3. 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
4. Section 430.32 is amended by revising paragraph (w)(2) to read as 
follows:


Sec.  430.32  Energy and water conservation standards and their 
compliance dates.

* * * * *
    (w) * * *
    (2) A basic model of external power supply is not subject to the 
energy conservation standards of paragraph (w)(1)(ii) of this section 
if the external power supply--
    (i) Is manufactured during the period beginning on February 10, 
2016, and ending on February 10, 2020;
    (ii) Is marked in accordance with the External Power Supply 
International Efficiency Marking Protocol, as in effect on February 10, 
2016;
    (iii) Meets, where applicable, the standards under paragraph 
(w)(1)(i) of this section, and has been certified to the Secretary as 
meeting those standards; and
    (iv) Is made available by the manufacturer only as a service part 
or a spare part for an end-use product that--
    (A) Constitutes the primary load; and
    (B) Was manufactured before February 10, 2016.
* * * * *
[FR Doc. 2016-11469 Filed 5-13-16; 8:45 am]
BILLING CODE 6450-01-P