Energy Conservation Program: Clarifying Amendments to the Error Correction Rule

<RULE> DEPARTMENT OF ENERGY <CFR>10 CFR Part 430</CFR> <DEPDOC>[EERE-2020-BT-STD-0015]</DEPDOC> <RIN>RIN 1904-AE87</RIN> <SUBJECT>Energy Conservation Program: Clarifying Amendments to the Error Correction Rule</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Energy Efficiency and Renewable Energy, Department of Energy. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Energy (“DOE” or “the Department”) is amending its procedures for providing public input on possible corrections of errors contained in the regulatory text of energy conservation standard final rules. In this final rule, DOE modifies certain aspects of these procedures to clarify and reflect the Department's intent regarding the error correction process that it previously created. The procedures as amended in this final rule do not in any way restrict, limit, diminish, or eliminate the Secretary's discretion to determine whether to establish or amend an energy conservation standard, or to determine the appropriate level at which to amend or establish any energy conservation standard. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> The effective date of this rule is April 3, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> The docket for this rulemaking, which includes <E T="04">Federal Register</E> notices, comments, and other supporting documents/materials, is available for review at <E T="03">www.regulations.gov.</E> All documents in the docket are listed in the <E T="03">www.regulations.gov</E> index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available. The docket web page can be found at <E T="03">www.regulations.gov/docket?D=EERE-2020-BT-STD-0015.</E> The docket web page explains how to access all documents, including public comments, in the docket. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Mr. Lucas Adin, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Program, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-5904 or <E T="03">Lucas.Adin@ee.doe.gov.</E> Ms. Melanie Lampton, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (240) 751-5157. Email: <E T="03">Melanie.Lampton@hq.doe.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Summary of Final Rule</FP> <FP SOURCE="FP-2">II. General Discussion</FP> <FP SOURCE="FP1-2">A. General Comments</FP> <FP SOURCE="FP1-2">B. Comments Concerning EPCA's Anti-Backsliding Provision</FP> <FP SOURCE="FP1-2"> C. Other Comments </FP> <FP SOURCE="FP1-2">D. Section-by-Section Analysis of Comments</FP> <FP SOURCE="FP-2">III. Procedural Issues and Regulatory Review</FP> <FP SOURCE="FP1-2">A. Administrative Procedure Act</FP> <FP SOURCE="FP1-2">B. Review Under Executive Orders 12866, 13563, and 14094</FP> <FP SOURCE="FP1-2">C. Review Under the Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">D. Review Under the Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">E. Review Under the National Environmental Policy Act of 1969</FP> <FP SOURCE="FP1-2">F. Review Under Executive Order 13132</FP> <FP SOURCE="FP1-2">G. Review Under Executive Order 12988</FP> <FP SOURCE="FP1-2">H. Review Under the Unfunded Mandates Reform Act of 1995</FP> <FP SOURCE="FP1-2">I. Review Under the Treasury and General Government Appropriations Act, 1999</FP> <FP SOURCE="FP1-2">J. Review Under Executive Order 12630</FP> <FP SOURCE="FP1-2">K. Review Under the Treasury and General Government Appropriations Act, 2001</FP> <FP SOURCE="FP1-2">L. Review Under Executive Order 13211</FP> <FP SOURCE="FP1-2">M. Congressional Notification</FP> <FP SOURCE="FP-2">IV. Approval of Office of the Secretary</FP> </EXTRACT> <HD SOURCE="HD1">I. Summary of Final Rule</HD> This procedural rule amends DOE's procedures for providing the public with an opportunity to request the correction of a possible error identified in the regulatory text of a final rule that would establish new or amended energy conservation standards prior to the rule's publication in the <E T="04">Federal Register</E> . <SU>1</SU> <FTREF/> <E T="03">See</E> 10 CFR 430.5. On October 9, 2020, DOE issued a notice of proposed rulemaking (“NOPR”), proposing various amendments to 10 CFR 430.5. <SU>2</SU> <FTREF/> 85 FR 64071. This final rule adopts some of the NOPR proposals. Specifically, the amendments contained within this final rule clarify that the Secretary was not, and is not, under a mandatory duty to post final energy conservation standard rules online for error-correction purposes, but to do so was, and is, a discretionary and voluntary act. <FTNT> <SU>1</SU>  DOE typically posts pre-publication versions energy conservation test procedures and standards rulemaking documents on a publicly accessible website. However, the posting of those rulemaking documents is separate from the error correction process outlined in 10 CFR 430.5. </FTNT> <FTNT> <SU>2</SU>  Although DOE took notice and comment on the NOPR, agency rules of procedure and practice, such as the one described in this document, are not subject to the requirement to provide prior notice and an opportunity for public comment pursuant to authority at 5 U.S.C. 553(b)(A). See section III of this document for additional discussion. </FTNT> When DOE elects to post online an energy conservation standard final rule prior to its submission and publication in the <E T="04">Federal Register</E> —or what is referred to as the pre-publication final rule for the purposes of this final rule discussion—DOE shall follow the procedures set forth in the error correction process found in 10 CFR 430.5. Additionally, this final rule amends language in 10 CFR 430.5 to clarify that, if DOE posts a rule for error-correction purposes, DOE will continue to strive to provide a 45-day review period for error correction, but it is within DOE's discretion to provide a shorter or longer period. As for other amendments proposed in the NOPR, DOE is retaining certain of the current regulatory requirements in 10 CFR 430.5. Specifically, DOE is retaining the current definitions, as well as the requirement for DOE to submit for publication in the <E T="04">Federal Register</E> a pre-publication final rule that has been posted in accordance with the error correction process. <E T="03">See</E> 10 CFR 430.5(b) and (f). DOE is also retaining the language in 10 CFR 430.5(a), except to clarify that the error correction process is an optional and voluntary process. Furthermore, DOE is retaining the current requirements in 10 CFR 430.5(g) and (h). The adopted amendments are summarized in Table I.1 and compared to the proposed amendments, as well as the requirements prior to the amendments. <GPOTABLE COLS="4" OPTS="L2,nj,p7,7/8,i1" CDEF="xs80,r50,r100,r75"> <TTITLE>Table I.1—List of Revisions in This Document</TTITLE> <CHED H="1">Section</CHED> <CHED H="1">Current DOE requirement</CHED> <CHED H="1">Proposed revisions from the October 2020 NOPR</CHED> <CHED H="1">Amended requirements</CHED> <ROW> <ENT I="01"> § 430.5(a) <E T="03">Scope and purpose</E> </ENT> <ENT>Describes the procedures through which DOE will consider submissions regarding potential Errors for those rulemakings establishing or amending energy conservation standards under EPCA</ENT> <ENT>Rename section and separate into two subsections; and clarify there is no affirmative obligation on the Secretary to provide the public with an opportunity for error correction review</ENT> <ENT>Retain current regulatory language found in § 430.5(a), except for adding “optional” before “procedure” and “may” before “accept and consider” to clarify the error correction process is a procedure that may be voluntarily implemented by the Secretary.</ENT> </ROW> <ROW> <ENT I="01"> § 430.5(b) <E T="03">Definitions</E> </ENT> <ENT>Defines “Act,” “Error,” “Rule,” and “Secretary”</ENT> <ENT>Revise definition of “Error” and replace the term “Rule” with the term “Pre-publication draft”</ENT> <ENT>Retain current definitions found in § 430.5(b).</ENT> </ROW> <ROW> <ENT I="01"> § 430.5(c) <E T="03">Posting of rules</E> </ENT> <ENT>Describes the beginning of the error correction process</ENT> <ENT>Revise section title; clarify that the posting of a pre-publication final rule for error correction review is within the Secretary's discretion and if posted, it would be available for a period of 45 days, but the review period may be shortened or lengthened at the Secretary's discretion; remove any implication that the Secretary will publish a rule that has undergone error correction review; and revise the disclaimer notice language to be consistent with other proposed amendments</ENT> <ENT>Adopt the proposal to clarify that the posting of a pre-publication final rule for error correction review is within the Secretary's discretion in § 430.5(c)(1) and if posted, it would be available for a period of 45 days, but the review period may be shortened or lengthened at the Secretary's discretion in § 430.5(c)(2). Retain current disclaimer notice text in § 430.5(c)(3).</ENT> </ROW> <ROW> <ENT I="01"> § 430.5(d) <E T="03">Request for Correction</E> </ENT> <ENT>Explains how to submit a request to DOE to correct an Error and describes what a request must contain</ENT> <ENT>Update to include the term “Pre-publication draft;” clarify that the Secretary is not obligated to take action on an error correction request; and clarify that the ECR would be limited to identifying Errors in the regulatory text of a pre-publication final rule</ENT> ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 80k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━