EERE-2006-STD-0127 COMMENT 70

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,E

Accountability·

GAO

Integrity· Reliability

United States Government Accountability Office

Washington, DC 20548

B-319280

February 12, 2010

The Honorable Jeff Bingaman

Chairman

The Honorable Lisa Murkowski

Ranking Minority Member

Committee on Energy and Natural Resources

United States Senate

The Honorable Henry A. Waxman

Chairman

The Honorable Joe L. Barton

Ranking Minority Member

Committee on Energy and Commerce

House of Representatives

Subject: Department ofEnergy: Energy Conservatjon Program: Energy Conservation

Standards for Certain Consumer Products (Dishwashers, Dehumidifiers,

Microwave Ovens, and Electric and Gas Kitchen Ranges and Ovens) and for

Certain Commercial and Industrial Equipment (Commercial Clothes

Washers)

Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on a

major rule promulgated by the Department of Energy (DOE), entitled "Energy

Conservation Program: Energy Conservation Standards for Certain Consumer

Products (Dishwashers, Dehumidifiers, Microwave Ovens, and Electric and Gas

Kitchen Ranges and Ovens) and for Certain Commercial and Industrial Equipment

(Commercial Clothes Washers)" (RIN: 1904-AB93). We received the rule on

January 25,2010. It was published in the Federal Register as a final rule on

January 8,2010. 75 Fed. Reg. 1122.

The final rule amends energy conservation standards for commercial clothes

washers (CCWs). The Energy Policy and Conservation Act (EPCA), as amended by

the Energy Policy Act of 2005 (EPACT 2005), directs DOE to consider mandatory

energy conservation standards for CCWs. The EPACT 2005 amendments to EPCA

require that DOE issue a final rule by January 1, 2010, to determine whether

standards for CCWs should be amended. Under the EPACT 2005 amendments, if

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EERE-2006-STD-0127 COMMENT 70

amended standards are justified, they would become effective no later than

January 1, 2013. DOE states the standards established in the final rule will be

applicable starting January 8,2013.

The final rule has an effective date of March 9, 2010. The Congressional Review Act

(CRA) requires a 60-day delay in the effective date of a major rule from the date of

publication in the Federal Registeror receipt of the rule by Congress, whichever is

later. 5 U.S.C. § 801(a)(3)(A). The rule was published in the Federal Registeron

January 8,2010, but we did not receive the rule until January 25,2010. Therefore,

the final rule does not have the required 60-day delay in its effective date.

Enclosed is our assessment of the DOE's compliance with the procedural steps

required by section 801(a)(I)(B)(i) through (iv) of title 5 with respect to the rule.

Our review of the procedural steps taken indicates that DOE complied with the

applicable requirements.

If you have any questions about this report or wish to contact GAO officials

responsible for the evaluation work relating to the subject matter of the rule, please

contact Shirley A. Jones, Assistant General Counsel, at (202) 512-8156.

v?~t~ Robert J. Cramer

Managing Associate General Counsel

Enclosure

cc: Daniel Cohen

Assistant General Counsel for Legislation,

Regulation, and Energy Efficiency

Department of Energy

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EERE-2006-STD-0127 COMMENT 70

ENCLOSURE

REPORT UNDER 5 U.S.C. § 801(a)(2)(A) ON A MAJOR RULE

ISSUED BY THE

DEPARTMENT OF ENERGY

ENTITLED

"ENERGY CONSERVATION PROGRAM: ENERGY CONSERVATION STANDARDS

FOR CERTAIN CONSUMER PRODUCTS (DISHWASHERS, DEHUMIDIFIERS,

MICROWAVE OVENS, AND ELECTRIC AND GAS KITCHEN RANGES AND

OVENS) AND FOR CERTAIN COMMERCIAL AND

INDUSTRIAL EQUIPMENT (COMMERCIAL CLOTHES WASHERS)"

(RIN: 1904-AB93)

(i) Cost-benefit analysis

DOE considered the cost and benefits of the rule and determined that the costs

outweigh the benefits. The benefits include energy savings, life cycle costs (LCC)

savings for CCW consumers, positive national net present value, and emissions

reductions. The costs include loss of manufacturer industry net present value and

LCC increases for some CCW consumers.

(ii) Agency actions relevant to the Regulatory Flexibility Act. 5 U.S.C. §§ 603-605,

607, and 609

DOE certifies that the final rule will not have a significant impact on a substantial

number ofsmall entities and that a regulatory flexibility analysis is not required.

DOE used the small business definitions set by the Small Business Administration to

detennine whether any of the manufacturers of equipment covered by this

rulemaking qualify as small entities that would be required to comply with the rule.

(iii) Agency actions relevant to sections 202-205 of the Unfunded Mandates Reform

Act of 1995,2 U.S.C. §§ 1532-1535

DOE states the final rule does not contain a federal intergovernmental mandate. It

may impose expenditures of $100 million or more on the private sector, although

DOE believes such expenditures are likely to be less than $50 million.

(iv) Other relevant information or requirements under acts and executive orders

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

The final regulations were issued using the notice and comment procedures found at

5 U.S.C. § 553. On November 9,2009, DOE published a notice of proposed

rulemaking on the Energy Conservation Program. 74 Fed. Reg. 57,738. DOE

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received timely public comments which are addressed in the final rule. 75 Fed. Reg.

1127.

Paperwork Reduction Act, 44 US.C. §§ 3501-3520

DOE states the final rule imposes no information and recordkeeping requirements.

Therefore, DOE has taken no further action in this rulemaking with respect to the

act.

Statutory authorization for the rule

DOE states the final rule is authorized by EPCA, as amended (42 US.C. 6291 ct seq.),

by EPACT 2005. 42 US.C. 6313(e)(2)(A).

Executive Order No. 12,866 (Regulatory Planning and Review)

DOE states the final rule is a "significant regulatory action." Therefore, this action is

subject to review by the Office of Management and Budget (OMB). Accordingly,

DOE presented the draft final rule and other documents prepared for this

rulemaking, including a regulatory impact analysis, to OMB for review.

Executive Order No. 13,132 (Federalism) .

DOE states that it examined the November 2009 proposed rule and 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. 74 Fed. Reg. 57,798. DOE

notes that it received no comments on this issue in response to the November 2009

notice of proposed rulemaking, and its conclusions on this issue are the same for the

final rule as they were for the proposed rule. Therefore, DOE states it has taken no

further action in the final rule with respect to the order.

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