[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Rules and Regulations]
[Pages 80289-80292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32116]


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DEPARTMENT OF ENERGY

10 CFR Part 430

[Docket No. EERE-2010-BT-STD-WAV-0045]


Energy Efficiency Program for Consumer Products: Waiver of 
Federal Preemption of State Regulations Concerning the Water Use or 
Water Efficiency of Showerheads, Faucets, Water Closets and Urinals

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

ACTION: Final rule.

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SUMMARY: The U.S Department of Energy (DOE) waives the general rule of 
Federal preemption for energy conservation standards under 42 U.S.C. 
6297(c) with respect to any State regulation concerning the water use 
or water efficiency of faucets, showerheads, water closets and urinals 
if such State regulation is: More stringent than Federal regulation 
concerning the water use or water efficiency for that same type or 
class of product; and applicable to any sale or installation of all 
products in that particular type or class.

DATES: Effective Date: This rule is effective December 22, 2010.

ADDRESSES: The public may review copies of all materials related to 
this rulemaking at the U.S. Department of Energy, Resource Room of the 
Building Technologies Program, 950 L'Enfant Plaza, SW., Suite 600, 
Washington, DC, (202) 586-2945, between 9 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays. Please call Ms. Brenda Edwards 
at the above telephone number for additional information regarding 
visiting the Resource Room.

FOR FURTHER INFORMATION CONTACT: Lucas Adin, U.S. Department of Energy, 
Office of Energy Efficiency and Renewable Energy, Building Technologies 
Program, EE-2J, 950

[[Page 80290]]

L'Enfant Plaza, SW., Washington, DC 20585-0121, (202) 287-1317, e-mail: 
<a href="/cdn-cgi/l/email-protection#79350c1a180a57381d1017391c1c571d161c571e160f"><span class="__cf_email__" data-cfemail="511d243230227f1035383f1134347f353e347f363e27">[email protected]</span></a>.
    Jennifer Tiedeman, Esq., GC-71, U.S. Department of Energy, Office 
of the General Counsel, 1000 Independence Avenue, SW., Washington, DC 
20585, (202) 287-6111, e-mail: <a href="/cdn-cgi/l/email-protection#b4fed1dadaddd2d1c69ae0ddd1d0d1d9d5daf4dcc59ad0dbd19ad3dbc2"><span class="__cf_email__" data-cfemail="a3e9c6cdcdcac5c6d18df7cac6c7c6cec2cde3cbd28dc7ccc68dc4ccd5">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Authority and Background
II. Procedural Requirements
    A. Executive Order 12866
    B. Administrative Procedure Act
    C. National Environmental Policy Act of 1969
    D. Regulatory Flexibility Act
    E. Paperwork Reduction Act
    F. Unfunded Mandates Reform Act of 1995
    G. Treasury and General Government Appropriations Act, 1999
    H. Executive Order 13132
    I. Executive Order 12988
    J. Treasury and General Government Appropriations Act, 2001
    K. Executive Order 13211
    L. Executive Order 12630
    M. Section 32 of the Federal Energy Administration Act of 1974
    N. Congressional Notification
III. Approval of the Office of the Secretary

I. Authority and Discussion

    Title III, Part B of the Energy Policy and Conservation Act (EPCA), 
Public Law 94-163 (42 U.S.C. 6291-6309, as codified), established the 
Energy Conservation Program for ``Consumer Products Other Than 
Automobiles.'' \1\ The consumer products subject to this program 
(hereafter ``covered products'') include faucets, showerheads, water 
closets and urinals, the subjects of today's notice. Under EPCA, the 
overall program consists essentially of testing, labeling, and Federal 
energy conservation standards, including water conservation standards 
for faucets, showerheads, water closets and urinals. National standards 
for these water-using products are based on the American Society of 
Mechanical Engineers (ASME)/American National Standards Institute 
(ANSI) standards A112.18.1M, for showerheads and faucets, and 
A112.19.6, for water closets and urinals. 42 U.S.C. 6295(j), (k).
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    \1\ For editorial reasons, upon codification in the U.S. Code, 
Part B was re-designated Part A.
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    42 U.S.C. 6295(j)(3)(C) and 6295(k)(3)(C) requires that, not later 
than six months after the conclusion of a five-consecutive-year period 
during which the ASME/ANSI has not amended these faucet, showerhead, 
water closet or urinal standards in order to improve water efficiency, 
DOE must publish a final rule waiving preemption for Federal standards 
under 42 U.S.C. 6297(c) with respect to any State regulation concerning 
the water use or water efficiency of such type or class of showerhead, 
faucet, water closet or urinal if such State regulation meets the 
following two conditions. First, the State regulation concerning water 
use or water efficiency for a particular type or class of showerhead, 
faucet, water closet or urinal must be more stringent than the Federal 
regulation concerning water use or water efficiency for that same type 
or class of showerhead, faucet, water closet or urinal. 42 U.S.C. 
6295(j)(3)(C)(i), 6295(k)(3)(C)(i). Second, the State regulation 
concerning the water use or water efficiency for a particular type or 
class of showerhead, faucet, water closet or urinal must be applicable 
to any sale or installation of all products in that particular type or 
class. 42 U.S.C. 6295(j)(3)(C)(ii), 6295(k)(3)(C)(ii).
    The provisions in 42 U.S.C. 6295(j)(3)(C) and 6295(k)(3)(C) 
represent a choice by Congress to deviate from the general rule of 
Federal preemption, where the relevant industry consensus body has 
failed to act to improve water efficiency for a significant period of 
time. ASME/ANSI last made a substantive amendment to its standards 
regarding the water efficiency requirements for showerheads and faucets 
on May 29, 1996 (ASME/ANSI A112.18.1M-1996), and for water closets and 
urinals on April 19, 1996 (ASME/ANSI A112.19.6-1995). Both of these 
standards were incorporated by reference into the Code of Federal 
Regulations in a final rule issued by DOE on March 18, 1998. 63 FR 
13308. Because more than five years have passed since ASME/ANSI last 
amended the water efficiency requirements in either of these standards, 
DOE must issue this final rule waiving the provisions of 42 U.S.C. 
6297(c) with respect to any State regulation concerning the water use 
or water efficiency of a particular type or class of showerhead, 
faucet, water closet or urinal that is both more stringent than the 
relevant Federal regulation and is applicable to any sale or 
installation or all products in that particular type or class.

II. Procedural Requirements

A. Executive Order 12866

    Today's regulatory action is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, ``Regulatory 
Planning and Review,'' 58 FR 51735 (October 4, 1993). Accordingly, this 
action was not subject to review under that Executive Order by the 
Office of Information and Regulatory Affairs (OIRA) of the Office of 
Management and Budget (OMB).

B. Administrative Procedure Act

    The Department of Energy finds good cause to waive prior notice and 
an opportunity for public comment on these regulations pursuant to 5 
U.S.C. 533(b)(B), because such procedures are unnecessary. EPCA imposes 
a non-discretionary duty on DOE to waive Federal preemption in a 
defined factual circumstance. That circumstance has occurred. 
Therefore, this rule is necessary for DOE to implement this 
statutorily-imposed obligation. Public comment on DOE's implementation 
of this legal mandate would serve no useful purpose. For the same 
reason, DOE finds good cause, pursuant to 5 U.S.C. 553(d)(3), to waive 
the 30-day delay in effective date for this rule. Therefore, these 
regulations are being published as final regulations and are effective 
December 22, 2010.

C. National Environmental Policy Act of 1969

    DOE has determined that this rule falls into a class of actions 
that are categorically excluded from review under the National 
Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and 
DOE's implementing regulations at 10 CFR part 1021. This rule at most 
amends an existing rule without changing its environmental effect, and, 
therefore, is covered by the Categorical Exclusion A5 found in appendix 
A to subpart D, 10 CFR part 1021. Accordingly, neither an environmental 
assessment nor an environmental impact statement is required. Moreover, 
a State's promulgation of a regulation concerning water use or water 
efficiency for a particular type or class of showerhead, faucet, water 
closet or urinal is not a Federal action subject to NEPA.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that must be proposed for public comment, unless the agency certifies 
that the rule will have no 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

[[Page 80291]]

rulemaking process. 68 FR 7990. DOE has made its procedures and 
policies available on the Office of the General Counsel's Web site at 
http://www.gc.doe.gov. Because a notice of proposed rulemaking is not 
required under the Administrative Procedure Act or other applicable 
law, the Regulatory Flexibility Act does not require certification or 
the conduct of a regulatory flexibility analysis for this rule.

E. Paperwork Reduction Act

    This rulemaking imposes no new information or recordkeeping 
requirements. Accordingly, OMB clearance is not required under the 
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)

F. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. For proposed regulatory actions likely to result in a 
rule that may cause expenditures by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation), section 202 of UMRA 
requires a Federal agency to publish estimates of 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 proposed ``significant intergovernmental 
mandate.'' UMRA also requires an agency plan for giving notice and 
opportunity for timely input to small governments that may be affected 
before establishing a requirement 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) 
(also available at http://www.gc.doe.gov). Today's final 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.

G. 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. 
Today's rule would have no impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is 
unnecessary to prepare a Family Policymaking Assessment.

H. 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. DOE has examined this final rule and 
determined that it would not preempt State law; in fact, this rule 
waives preemption of State law and has no negative impact on any State. 
Executive Order 13132 requires no further action.

I. Executive Order 12988

    With respect to 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. Regarding the review required by 
section 3(a), 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, this rule meets the 
relevant standards of Executive Order 12988.

J. Treasury and General Government Appropriations Act, 2001

    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 
today's notice under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

K. 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 OMB 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgates or is expected to lead to promulgation of a 
final rule, and that (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. Today's regulatory 
action is not a significant regulatory action under Executive Order 
12866 or any successor order; would not have a significant adverse 
effect on the supply, distribution, or use of energy; and has not been 
designated by the Administrator of OIRA as a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

L. Executive Order 12630

    Pursuant to Executive Order 12630, ``Governmental Actions and 
Interference with Constitutionally Protected Property Rights,'' 53 FR 
8859 (March 15, 1988), DOE has determined that this rule would not 
result in any takings that might require compensation under the

[[Page 80292]]

Fifth Amendment to the U.S. Constitution.

M. Section 32 of the Federal Energy Administration Act of 1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91), the Department of Energy must comply with section 32 
of the Federal Energy Administration Act of 1974 (Pub. L. 93-275), as 
amended by the Federal Energy Administration Authorization Act of 1977 
(Pub. L. 95-70). (15 U.S.C. 788) Section 32 provides 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 Department of Justice and the Federal Trade 
Commission concerning the impact of the commercial or industry 
standards on competition. This final rule to waive the provisions of 42 
U.S.C. 6297(c) in certain circumstances is not a proposed rule and does 
not authorize or require the use of any commercial standards. 
Therefore, no consultation with either DOJ or FTC is required.

N. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of today's rule. 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).

III. Approval of the Office of the Secretary

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

    Issued in Washington, DC, on December 15, 2010.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.
[FR Doc. 2010-32116 Filed 12-21-10; 8:45 am]
BILLING CODE 6450-01-P


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