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contains regulatory documents having general

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are keyed to and codified in the Code of

Federal Regulations, which is published under

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Rules and Regulations Federal Register

13217 

Vol. 75, No. 53 

Friday, March 19, 2010 

DEPARTMENT OF ENERGY 

10 CFR Part 430 

[Docket No. EE–RM–03–630] 

RIN 1904–AB52 

Energy Conservation Program for 

Consumer Products: Classifying 

Products as Covered Products 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule. 

SUMMARY: Under the Energy Policy and 

Conservation Act (EPCA), the U.S. 

Department of Energy (DOE) 

promulgates a rule to define the term 

‘‘household’’ and related terms. These 

definitions provide a basis for DOE to 

determine whether the household 

energy use of products not currently 

covered by EPCA meets the levels 

required for DOE to classify a product 

as a ‘‘covered product’’ under EPCA; 

such a classification would mean that 

DOE potentially could establish energy 

conservation requirements for the 

covered product. With the ‘‘household’’ 

definition in place, the Secretary may 

exercise statutory authority to classify as 

covered products additional qualifying 

consumer products beyond the products 

already specified in EPCA, and set test 

procedures and efficiency standards for 

them. 

DATES: This rule is effective April 19, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Linda Graves, Esq., Project Manager, 

Coverage of Consumer Products, Docket 

No. EE–RM–03–630, U.S. Department of 

Energy, Office of Energy Efficiency and 

Renewable Energy, Building 

Technologies Program, EE–2J/Forrestal 

Building, 1000 Independence Avenue, 

SW., Washington, DC 20585–0121, (202) 

586–1851, e-mail: 

Linda.graves@ee.doe.gov, or Francine 

Pinto, Esq., U.S. Department of Energy, 

Office of General Counsel, GC–72/ 

Forrestal Building, 1000 Independence 

Avenue, SW., Washington, DC 20585– 

0121, (202) 586–9507, e-mail: 

Francine.Pinto@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

A. Authority 

B. Background 

C. Summary of the Final Rule 

II. Discussion 

A. The Definitions 

B. Extent of Reliance on Definitions Used 

in DOE’s Residential Energy 

Consumption Survey 

C. Conclusion 

III. Public Participation 

A. Determination Not To Hold Public 

Meeting 

B. Public Comment Response 

IV. Procedural Requirements 

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 the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under Executive Order 13211 

L. Congressional Notification 

V. Approval of the Office of the Secretary 

I. Introduction 

A. Authority 

Part A of Title III of EPCA sets forth 

a variety of provisions that provide for 

the ‘‘Energy Conservation Program for 

Consumer Products Other than 

Automobiles.’’ (42 U.S.C. 6291–6309) 

The program consists essentially of four 

parts: Mandatory testing, labeling, 

energy conservation standards, and 

certification and enforcement 

procedures. DOE implements all parts of 

the program except for the labeling 

provisions, which are implemented by 

the Federal Trade Commission (FTC). 

EPCA lists specific types of consumer 

products that are subject to this 

program, referring to them as ‘‘covered 

products,’’ and authorizes DOE to add 

other consumer products to the program 

as covered products. (42 U.S.C. 6292(a) 

and (b)) DOE may add any type of 

consumer product if: (1) ‘‘Classifying 

products of such type as covered 

products is necessary or appropriate to 

carry out the purposes’’ of EPCA, and (2) 

the annual per household energy use of 

such products in the households that 

use them is likely to average more than 

100 kilowatt-hours. (42 U.S.C. 6292(b)) 

For purposes of section 6292(b), ‘‘[t]he 

term ‘household’ shall be defined under 

rules of the Secretary [of Energy].’’ (42 

U.S.C. 6292(b)(2)(C)) This notice 

promulgates a rule that amends Title 10 

of the Code of Federal Regulations (10 

CFR) 430.2 to define ‘‘household,’’ as 

well as four related terms, three of 

which are used in defining ‘‘household.’’ 

DOE may prescribe test procedures for 

any product it classifies as a ‘‘covered 

product.’’ (42 U.S.C. 6293(b)(1)(B)) If 

DOE prescribes such test procedures, 

the FTC may also prescribe a labeling 

rule under EPCA for the product if it 

determines that labeling will assist 

purchasers in making purchasing 

decisions and is economically and 

technically feasible. (42 U.S.C. 

6294(a)(3)) Finally, DOE may prescribe 

energy conservation standards for a type 

of consumer product it classifies as 

covered if the product meets certain 

additional criteria, such as ‘‘average per 

household energy use within the United 

States’’ in excess of 150 kilowatt-hours, 

and ‘‘aggregate household energy use’’ in 

excess of 4.2 billion kilowatt-hours, for 

any prior 12-month period. (42 U.S.C. 

6295(l)(1)) 

With the household definition 

promulgated in this final rule, the 

Secretary may henceforth exercise 

statutory authority (1) to identify as 

covered products additional qualifying 

consumer products beyond the products 

already specified in EPCA, and then 

potentially (2) to set test procedures and 

efficiency standards for the newly 

covered consumer products. 

B. Background 

Prior to 2006, DOE annually prepared 

an analysis of pending and prospective 

rulemakings under its energy 

conservation program for consumer 

products and its companion program for 

commercial and industrial equipment 

under Parts A and A–1 of Title III of 

EPCA. DOE used this analysis to 

develop priorities and propose 

schedules for all rulemakings under 

these programs. In its priority-setting 

activities beginning in fiscal year 2003, 

DOE discussed possible expansion of 


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the programs to include additional 

consumer products and commercial and 

industrial equipment. However, with 

the passage of the Energy Policy Act of 

2005 (EPACT 2005), Public Law 109–58, 

several additional products that DOE 

had been considering for coverage (e.g., 

ceiling fans and torchieres) became 

covered products with prescribed 

standards. The Energy Independence 

and Security Act of 2007 (EISA 2007), 

Public Law 110–140, prescribed 

standards for several consumer products 

and types of commercial and industrial 

equipment, and amended the schedule 

for DOE to update several standards. 

Since the passage of EPACT 2005 and 

EISA 2007, as well as issuance of the 

Consent Decree for the consolidated 

cases of New York v. Bodman, No. 05 

Civ. 7807 (S.D.N.Y. filed Sept. 7, 2005) 

and Natural Resources Defense Council 

v. Bodman, No. 05 Civ. 7808 (S.D.N.Y. 

filed Sept. 7, 2005), DOE has re-assessed 

its rulemaking procedures and 

scheduling decisions. DOE held a public 

meeting November 15, 2005, followed 

by a 30-day public comment period, to 

obtain public input. After considering 

the public comments, DOE released a 

five-year plan that described how DOE 

would address the appliance standards 

rulemaking backlog and meet all of the 

statutory requirements established in 

EPCA, as amended, and EPACT 2005. 

The plan is contained in the report to 

Congress, which was released January 

31, 2006. DOE has updated that plan in 

response to EISA 2007 and the Consent 

Decree, and an updated version of the 

plan is posted on the DOE Web page at: 

http://www1.eere.energy.gov/buildings/ 

appliance_standards/ 

schedule_setting.html. The plan focuses 

on how DOE will complete rulemakings 

currently in process, catch up on a 

backlog of overdue rulemakings, and 

meet all rulemaking requirements 

contained in EPACT 2005 and EISA 

2007 on time. The plan also addresses 

rulemaking deadlines set by the Consent 

Decree. In a memorandum for the 

Secretary of Energy, dated February 5, 

2009 (74 FR 6537, Feb. 9, 2009), the 

President requested that DOE 

expeditiously finalize the rulemakings 

required by EPACT 2005, EISA 2007, 

and the Consent Decree. Given recent 

progress on expeditiously finalizing 

rulemakings, DOE now contemplates 

expanding the program to cover 

additional consumer products or 

commercial equipment. DOE is 

proceeding with this final rule to fill in 

a gap in DOE regulations so the 

Secretary can exercise statutory 

authority (as scheduling, priorities, and 

available resources permit) to expand 

standards coverage to appropriate 

products. Particularly, as energy 

efficient technologies advance in the 

future, the Secretary may exercise DOE’s 

authority to consider whether any other 

products should be classified as covered 

products. 

As indicated above, a significant 

element of the required assessment for 

each of these products is whether its 

annual ‘‘per-household’’ energy use is 

likely to exceed 100 kilowatt-hours. 

DOE can classify a product as covered 

only if it determines that the product 

meets this criterion. To address the 

criterion, DOE needed to define the term 

‘‘household.’’ DOE may now apply the 

definition to any future evaluations of 

whether DOE can classify other 

consumer products as covered products. 

In addition, DOE may use the definition 

as a basis for determining whether a 

product meets the per-household and 

aggregate-household energy-use criteria 

for setting energy conservation 

standards for a product DOE classifies 

as covered. (42 U.S.C. 6295(l)) 

C. Summary of Final Rule 

The final rule defines ‘‘household’’ 

and three related terms. Taken together, 

these definitions in essence provide that 

a household is an individual or group 

that lives together in a housing unit that 

they occupy separately from any other 

group or individual. The content of 

these definitions is consistent with the 

legislative history of EPCA and with 

dictionary definitions of ‘‘household,’’ 

and is essentially the same as the 

relevant definitions that the DOE Energy 

Information Administration (EIA) uses 

as a basis for its periodic Residential 

Energy Consumption Surveys (RECS) of 

household energy use, which is 

discussed in more detail below in 

section II., C. The final rule also defines 

the term ‘‘energy use of a type of 

consumer product which is used by 

households,’’ which is virtually 

identical to a term used in section 

322(b)(2)(A) of EPCA, 42 U.S.C. 

6292(b)(2)(A), so as to make clear the 

locations at which household energy 

consumption can occur and that visitors 

to a household can contribute to such 

consumption. 

II. Discussion 

A. The Definitions 

As discussed above, DOE is 

authorized to add products to its 

program under EPCA, if the product is 

likely to exceed ‘‘annual per-household 

energy use’’ of 100 kilowatt-hours 

pursuant to DOE’s definition of 

‘‘household.’’ (42 U.S.C. 6292(a) and (b)) 

DOE is hereby providing a definition 

of ‘‘household,’’ and of the related terms 

‘‘housing unit,’’ ‘‘separate living 

quarters,’’ and ‘‘group quarters.’’ The 

definitions of these related terms serve 

to clarify the meaning of ‘‘household.’’ 

‘‘Housing unit’’ is defined because the 

term is used in the definition of 

‘‘household,’’ and ‘‘separate living 

quarters’’ and ‘‘group quarters’’ are 

defined because they are used in the 

definition of ‘‘housing unit.’’ 

The core of the final rule is the 

definition of ‘‘household’’ as an 

individual or group that resides in a 

particular housing unit. This conforms 

to the general dictionary definition of 

the term. The final rule, in turn, defines 

‘‘housing unit’’ as ‘‘a house, an 

apartment, a group of rooms, or a single 

room occupied as separate living 

quarters, but [that] does not include 

group quarters.’’ ‘‘Separate living 

quarters’’ is defined as a place where 

people live in a separate space from 

others and to which they have access 

without going through the living space 

of others, and ‘‘group quarters’’ is 

defined as living quarters occupied by 

an institutional group of 10 or more 

unrelated persons. DOE has 

incorporated the substance of the RECS 

definitions of these last two terms to 

assure that ‘‘household’’ refers to a group 

that consumes energy as a unit. See the 

2001 RECS report at http:// 

www.eia.doe.gov/emeu/recs/ 

glossary.html. The cut off of 10 or more 

unrelated people would serve to 

distinguish a group that acts as a unit 

from one that does not. 

Under these definitions, DOE intends 

to use a broad range of data, including 

data generated by the RECS, in 

determining whether products qualify 

for coverage and the development of 

standards under EPCA. In gathering 

information as to the household energy 

use of any particular product, DOE will 

use the best available data for that 

product. When RECS data covers a 

product, its use will be possible because 

the substance of the proposed 

definitions is consistent with and quite 

similar to the corresponding EIA 

definitions. See the 2001 RECS report at 

http://www.eia.doe.gov/emeu/recs/ 

glossary.html. Moreover, DOE will 

generally prefer to use the RECS data 

because generally it is the most 

comprehensive and best available 

source of information on residential 

energy consumption. The RECS, 

however, will likely not cover many of 

the products DOE is investigating. By 

not adhering to all of the details of the 

definitions used in the RECS, the 

definitions promulgated by this final 


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rule allow DOE sufficient flexibility to 

use other sources of information. 

Finally, EPCA defines ‘‘average annual 

per-household energy use’’ for a type of 

product as being the ‘‘estimated 

aggregate annual energy use * * * of 

consumer products of such type which 

are used by households in the United 

States, divided by the number of such 

households which use [them].’’ (42 

U.S.C. 6292(b)(2)) DOE is hereby 

defining ‘‘energy use of a type of 

consumer product which is used by 

households’’ as meaning energy use by 

the product both within the interior 

space of housing units occupied by 

households, as well as on contiguous 

property used primarily by the 

household occupying the housing unit. 

Thus, for example, where a product 

consumes energy in a housing unit’s 

backyard or outdoor pool or accessory 

building(s) or structures, such energy 

use would be included in determining 

per-household or aggregate-household 

energy use. This definition also makes 

clear that household energy use 

includes all energy consumption, both 

by members of each household and their 

visitors, at all housing units occupied by 

each household. 

B. Extent of Reliance on Definitions 

Used in DOE’s Residential Energy 

Consumption Survey 

Since 1978, EIA has periodically 

gathered information about energy 

consumption in the residential sector by 

conducting a RECS, and in 2004, EIA 

posted data on its Web site on the 

results of its 2001 RECS at http:// 

www.eia.doe.gov/emeu/recs/ 

contents.html. (2001 RECS Report). The 

RECS provides information on the use 

of energy in residential housing units in 

the United States. This information 

includes: the physical characteristics of 

the housing units surveyed; the 

appliances in those units, including 

space heating and cooling equipment; 

demographic characteristics of the 

households; the types of fuels used; and 

other information that relates to energy 

use. 

‘‘Household’’ energy consumption 

behavior is the focus of the RECS. This 

behavior is a primary driver behind 

purchases and consumption of energy in 

the residential setting. The RECS 

collects information focused on the 

household, and the RECS report 

provides data on energy consumption 

and expenditures per household. 

The definitions promulgated in this 

final rule contain the same concepts as 

the RECS definitions (see the 2001 RECS 

report at http://www.eia.doe.gov/emeu/ 

recs/glossary.html), and this is 

appropriate for several reasons. First, as 

a general matter, the RECS definitions 

appear to be reasonable and logical 

constructions of the term ‘‘household.’’ 

In content, they are very similar to 

definitions for household and related 

terms in the Census Bureau’s housing 

survey, e.g., Current Housing Reports, 

U.S. Census Bureau, Pub. No. H150/07, 

American Housing Survey for the 

United States: 2007 at Appendix A, A– 

9–A–11 (2008) (2008 Housing Survey 

Report). Second, the RECS uses 

‘‘household’’ and related terms for 

purposes very similar to those for which 

DOE would use the definitions 

promulgated in this final rule. These 

definitions provide a basis on which 

DOE could estimate the household 

energy use of particular products. The 

RECS uses the terms for gathering and 

presenting precisely this type of 

information, although it also collects 

information as to household energy use 

generally. Finally, DOE has used RECS 

data in its rulemakings concerning 

energy conservation standards, and 

intends to use this data whenever 

possible to determine whether it can 

classify as covered, and adopt standards 

for, consumer products not listed as 

covered in EPCA. For example, DOE 

used RECS data in rulemakings 

concerning efficiency standards for 

residential central air conditioners and 

heat pumps, and for residential water 

heaters. 65 FR 59589, 59595, 59600 

(October 5, 2000); 66 FR 4474, 4477, 

4478 (January 17, 2001). 

As indicated above, today’s final rule 

incorporates from the RECS definitions 

the concept that a group of 10 or more 

unrelated people, even if living in a 

dwelling that would otherwise be a 

single housing unit, would not be a 

‘‘household’’ for purposes of 

determining per-household energy 

consumption. From 1984 to 2005, the 

Census Bureau’s housing survey used a 

similar approach: It did not treat as a 

household a group that occupies living 

quarters inhabited by nine or more 

unrelated persons. 2008 Housing Survey 

Report, App. C at C–7. Although DOE 

might possibly have used a different 

numerical cut off than the RECS uses, or 

a more subjective approach to describe 

groups that occupy a dwelling and act 

as a unit, DOE determined that the 

approach in the RECS is reasonable and 

wants to be able to rely on the RECS 

data to the greatest extent possible to 

evaluate household energy consumption 

for products it seeks to cover. DOE 

emphasizes that it is promulgating this 

classification only for purposes of 

evaluating household energy 

consumption under EPCA. The final 

rule’s definition of ‘‘household’’ is not 

intended in any way to address or make 

a judgment on the desirability of 

households of any particular size or 

composition. 

Although definitions promulgated in 

this final rule are essentially the same 

in substance as the definitions the RECS 

uses for ‘‘household’’ and related terms, 

the final rule language is much less 

detailed, and differs from the language 

of the RECS definitions in a number of 

respects. The RECS definitions contain 

language specifically geared to EIA’s 

purposes that is unnecessary for this 

rulemaking. Regarding the level of 

detail, most significant is that the RECS 

definition of ‘‘household’’ identifies 

various specific categories of people 

who would or would not be considered 

household members, whereas this final 

rule does not identify such categories. 

The RECS gathers information as to the 

characteristics of the households it 

surveys, but DOE will not use the final 

rule’s definitions as a basis for obtaining 

such information. Therefore, the RECS 

definition needs to delineate who is and 

is not within a household with much 

greater precision than the final rule’s 

definition. 

In addition, the definitions in this 

final rule contain many technical and 

editorial changes to the RECS 

definitions. For example, the RECS 

definition of ‘‘household’’ refers to a 

person’s residence ‘‘at the time of the 

first field contact’’ and to comparison of 

the numbers of households and of 

occupied housing units ‘‘in the RECS.’’ 

2001 RECS report at http:// 

www.eia.doe.gov/emeu/recs/ 

glossary.html. Such language does not 

belong in the final rule’s definition of 

household, which would be used to 

provide a metric for assessing the energy 

use of a product. 

Furthermore, because EIA did not 

develop the RECS definitions for 

inclusion in regulations, they are not in 

the form, and sometimes lack the 

precision, needed in a regulation. For 

example, consecutive sentences of the 

RECS definition of ‘‘household’’ describe 

members of the household as persons 

who have their ‘‘usual or permanent 

place of residence’’ in the same housing 

unit, who ‘‘live in the housing unit,’’ and 

who ‘‘usually live in the household.’’ 

2001 RECS report at http:// 

www.eia.doe.gov/emeu/recs/ 

glossary.html. These different 

descriptions create the potential for 

misinterpretation, and use of the word 

‘‘household’’ within the definition of 

that term makes the definition circular. 

In the definitions promulgated in this 

final rule, DOE has converted the EIA 

definitions into language suitable for 

use as a regulation, adhering to the 


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concepts in these definitions while 

attempting to reduce the potential for 

misinterpretation, vagueness, and 

conflicts, as well as unnecessary 

wording. 

Finally, the final rule’s definition of 

‘‘energy use of a type of consumer 

product which is used by households’’ 

reflects how EIA conducts the RECS and 

uses its definitions of household and 

related terms, although in one 

significant respect it departs from the 

RECS approach. First, the RECS 

concerns all energy consumption at the 

housing unit where the household is 

located, i.e., consumption both by 

members of a household and by visitors. 

2001 RECS report at http:// 

www.eia.doe.gov/emeu/recs/recs2001/ 

questionaire.pdf. The language of the 

RECS definitions of household and 

related terms, however, does not clearly 

provide that household energy 

consumption includes consumption by 

non-members of the household. DOE is 

defining ‘‘energy use of a type of 

consumer product which is used by 

households’’ so as to clearly include 

such energy consumption. 

Second, the RECS often addresses 

energy consumption on the grounds and 

in buildings belonging to the housing 

unit in which the household members 

reside, although its definition of 

‘‘housing unit’’ does not explicitly 

include such areas. For example, the 

2001 RECS addressed swimming pool 

heaters, well water pumps, and outdoor 

gas lighting (2001 RECS report at table 

HC5–4a), and previous surveys have 

addressed products such as electric 

lawn mowers. The final rule’s definition 

of ‘‘energy use of a type of consumer 

product which is used by households’’ 

provides in essence that energy 

consumption on the grounds of housing 

units occupied by the household, and in 

structures on those grounds, is part of 

household energy consumption. 

Third, the RECS concerns energy 

consumption only at housing units that 

households occupy as primary 

residences. 2001 RECS report at http:// 

www.eia.doe.gov/emeu/recs/recs2001/ 

append_a.html and http:// 

www.eia.doe.gov/emeu/recs/recs2001/ 

questionaire.pdf. Thus, the RECS report 

does not include information as to 

household energy use in secondary 

residences. EIA uses this approach for 

several reasons. First, the amount of 

energy consumed in secondary 

residences, although not negligible, is 

not large. Second, by covering a 

narrower universe—primary residences 

rather than all residences occupied by 

households—the sample of households 

from which the RECS gathers 

information will provide stronger 

support for the conclusions reached in 

the RECS as to household energy use. 

And third, this approach parallels the 

Census Bureau’s historical definition of 

‘‘household’’ and its approach to 

gathering information in its housing 

survey. EPCA’s criteria for determining 

whether a consumer product qualifies 

for coverage and the adoption of 

standards, however, do not limit perhousehold or aggregate household 

energy use to energy use in the primary 

residences of households. (42 U.S.C. 

6292(b) and 6295(l)) Furthermore, DOE 

sees no reason to adopt such a 

limitation in evaluating products for 

coverage and standards. Therefore, the 

definitions in this final rule provide in 

effect that household energy use by a 

product includes all energy that 

households consume in using that 

product, at all housing units they 

occupy, regardless of whether the 

housing units are primary residences. 

This permits DOE to use data as to 

household energy consumption that 

includes both primary and secondary 

residences, if such data is available. 

When such data is not available, DOE 

intends to use data that includes only 

primary residences, such as the RECS 

data. Energy consumption at primary 

residences will always be at least a 

constituent element of total household 

energy use for consumer products, since 

for all or virtually all such products it 

appears to represent the most significant 

portion of household energy use. Thus, 

for products for which the available data 

includes energy use only at primary 

residences, such as the RECS data, 

DOE’s use of such data as a basis for 

determining whether the product 

qualifies for coverage and the adoption 

of standards would provide an accurate 

but conservative estimate of perhousehold and aggregate household 

energy use under EPCA. 

C. Conclusion 

In sum, DOE has adopted definitions 

of ‘‘household’’ and related terms, which 

it would use to determine whether 

products not currently covered under 

EPCA meet the EPCA criteria for 

classification as ‘‘covered products.’’ 

DOE would also use these definitions to 

determine whether, once a product has 

been so classified, it meets the 

additional per-household and aggregate 

household energy use criteria for setting 

energy conservation standards under 

EPCA for a product DOE classifies as 

covered. EPCA directs DOE to define 

‘‘household,’’ and DOE believes the 

definitions promulgated in this final 

rule are reasonable and consistent with 

data DOE intends to use in making its 

determinations on household energy 

consumption. 

III. Public Participation 

A. Determination Not To Hold Public 

Meeting 

Under 42 U.S.C. 7191(c)(1), the 

Secretary may determine that ‘‘no 

substantial issue of fact or law exists 

and that such rule * * * is unlikely to 

have a substantial impact on the 

Nation’s economy or large numbers of 

individuals or businesses,’’ and that 

‘‘such proposed rule * * * or order may 

be promulgated in accordance with 

section 553 of title 5.’’ Section 553(c) of 

title 5 permits the agency to ‘‘give 

interested persons an opportunity to 

participate in the rule making through 

submission of written data, views, or 

arguments with or without opportunity 

for oral presentation.’’ DOE determined 

that a 45-day public comment period for 

written comments was sufficient and 

that a public meeting for oral 

presentation was unnecessary for this 

rulemaking. Since this rulemaking did 

not raise any issues of fact or law and 

merely provided a definition necessary 

for the Secretary to carry out authority 

already held by the Secretary under 

EPCA, this rulemaking was unlikely to 

have a substantial impact on the 

Nation’s economy or large numbers of 

individuals or businesses. 

B. Public Comment Response 

No comments were received during 

the public comment period that ended 

June 19, 2006. One comment was 

received from the Peoples Republic of 

China (China) after the close of the 

comment period. China recommended 

that the definition take into account the 

possibility that certain households may 

have non-residential energy uses, which 

should be excluded from consideration. 

Even if China’s comment had been 

received during the comment period, 

DOE believes that the statutory 

provisions that direct DOE to consider 

the average annual per-household 

energy use of consumer products ensure 

that only residential energy uses will be 

considered. China also made 

suggestions regarding certain regulatory 

issues that are beyond the scope of this 

rulemaking. 

DOE anticipated that this rulemaking 

would be non-controversial. This was 

confirmed, as evidenced by the receipt 

of only one public comment. Therefore, 

DOE is adopting the rule verbatim as 

originally proposed in the notice of 

proposed rulemaking and opportunity 

for public comment which was 

published in the Federal Register on 

May 4, 2006. (71 FR 26275) 


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IV. Procedural Requirements 

A. Review Under Executive Order 12866 

The Office of Information and 

Regulatory Affairs of the Office of 

Management and Budget (OMB) 

determined that today’s regulatory 

action is not a ‘‘significant regulatory 

action’’ under Executive Order 12866, 

‘‘Regulatory Planning and Review,’’ 58 

FR 51735 (October 4, 1993). 

Accordingly, this action was not subject 

to review under the Executive Order. 

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 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 draft rules on small 

entities are properly considered during 

the rulemaking process (68 FR 7990). 

DOE has made them available on the 

Office of General Counsel’s Web site: 

http://www.gc.doe.gov. 

DOE reviewed this rule under the 

provisions of the Regulatory Flexibility 

Act and the procedures and policies 

published on February 19, 2003. This 

final rule neither classifies any product 

as covered under EPCA, nor includes 

any requirement for any product. Thus, 

the final rule does not have any 

economic impact on any business or 

entity. On the basis of the foregoing, 

DOE certifies that the final rule does not 

impose a significant economic impact 

on a substantial number of small 

entities. Accordingly, DOE did not 

prepare a regulatory flexibility analysis 

for this rulemaking. DOE transmitted 

the certification and supporting 

statement of factual basis to the Chief 

Counsel for Advocacy of the Small 

Business Administration for review 

pursuant to 5 U.S.C. 605(b). 

C. Review Under the Paperwork 

Reduction Act of 1995 

This rule was reviewed under the 

Paperwork Reduction Act. (44 U.S.C. 

3501 et seq.) This rule concerns an 

element of the criteria DOE must use to 

determine whether it can regulate and 

adopt energy conservation standards for 

consumer products not already covered 

under EPCA. It does not require any 

additional reports or recordkeeping. 

Accordingly, this action is not subject to 

review under the Paperwork Reduction 

Act. 

D. Review Under the National 

Environmental Policy Act of 1969 

In this rulemaking, DOE adopted 

definitions that provide a basis for DOE 

to determine whether products not 

currently covered by EPCA meet the 

requirements for DOE to classify a 

product as a ‘‘covered product’’ under 

EPCA, and to establish energy 

conservation requirements for the 

product. The definitions will not affect 

the quality or distribution of energy and, 

therefore, will not result in any 

environmental impacts. DOE, therefore, 

determined that this rule 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 seq.) and DOE’s 

implementing regulations at 10 CFR part 

1021. More specifically, today’s rule is 

covered by the Categorical Exclusion in 

paragraph A5 to subpart D, 10 CFR part 

1021 (rulemaking that amends an 

existing rule without changing the 

environmental effect of the rule being 

amended). Accordingly, neither an 

environmental assessment nor an 

environmental impact statement was 

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 13132 requires agencies 

to examine the constitutional and 

statutory authority supporting any 

action that would limit the 

policymaking discretion of the States 

and 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). 

The final rule published today 

supplies an element of the criteria DOE 

must use to determine whether it can 

regulate and adopt energy conservation 

standards for consumer products not 

already covered under EPCA. This final 

rule will not directly affect state or local 

governments. However, it might 

ultimately have an indirect impact on 

such governments because the rule 

could affect which products DOE covers 

and adopts standards for, under EPCA. 

If DOE ultimately decides to extend the 

coverage of its energy efficiency 

program to additional consumer 

products, the future application of 

coverage criteria could pre-empt state 

and local requirements for those newly 

covered products. Such impacts would 

not be the result of this final rule but 

would be the result of later notice-andcomment rulemakings. Thus today’s 

rule, by itself, does not pre-empt any 

state or local action. 

For these reasons, DOE determined 

that this final rule does not preempt 

State law and does 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. Therefore, no 

further action is required by Executive 

Order 13132. 

F. Review Under 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; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and 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 section 3(a) and section 

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 final 

rule meets the relevant standards of 

Executive Order 12988. 


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13222 Federal Register / Vol. 75, No. 53 / Friday, March 19, 2010 / Rules and Regulations 

G. Review Under Unfunded Mandates 

Reform Act of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

(UMRA) requires each Federal agency to 

assess the effects of Federal regulatory 

actions on State, local, and tribal 

governments and the private sector. 

With respect to a proposed regulatory 

action that may result in the 

expenditure 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)) 

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,’’ 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 small 

governments. 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). 

This final rule will not directly affect 

any State, local or tribal government, or 

the private sector. It might ultimately 

have an indirect effect on State or local 

governments, and the private sector, 

since it could affect which products 

DOE covers and adopts standards for 

under EPCA. DOE’s coverage and 

adoption of standards for products 

could pre-empt state and local 

requirements for those products, and 

would affect companies that 

manufacture and sell them. Such 

impacts will not result from 

promulgation of this final rule, however, 

and the rule imposes no mandates of 

any kind. 

For these reasons, we have 

determined that this final rule does not 

provide for any Federal mandate that 

may result in estimated costs of $100 

million or more. Therefore, a cost 

benefit analysis was not required under 

the UMRA. 

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. 

Today’s final rule does not have any 

impact on the autonomy or the integrity 

of the family as an institution. 

Accordingly, DOE concluded that it was 

not necessary to prepare a Family 

Policymaking Assessment. 

I. Review Under Executive Order 12630 

DOE determined under Executive 

Order 12630, ‘‘Governmental Actions 

and Interference with Constitutionally 

Protected Property Rights,’’ 53 FR 8859 

(March 18, 1988), that this regulation 

would not result in any takings which 

might require compensation under the 

Fifth Amendment to the United States 

Constitution. 

J. Review Under the 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 

under general guidelines issued by 

OMB. The OMB guidelines were 

published in 67 FR 8452 (February 22, 

2002), and the DOE guidelines were 

published in 67 FR 62446 (October 7, 

2002). DOE reviewed this final rule 

under the OMB and DOE guidelines, 

and 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 the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget, 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 Administration 

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 final rule 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. Therefore, 

it is not a significant energy action, and 

DOE has not prepared a Statement of 

Energy Effects. 

L. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of today’s rule prior to 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 today’s rule. 

List of Subjects in 10 CFR Part 430 

Administrative practice and 

procedure, Energy conservation, 

Household appliances. 

Issued in Washington, DC, on January 22, 

2010. 

Cathy Zoi, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

■ For the reasons set forth in the 

preamble, Part 430 of Chapter II of Title 

10, Code of Federal Regulations, is 

amended as set forth below. 

PART 430—ENERGY CONSERVATION 

PROGRAM FOR CONSUMER 

PRODUCTS 

■ 1. The authority citation for Part 430 

continues to read as follows: 

Authority: 42 U.S.C. 6291–6309; 28 U.S.C. 

2461 note. 

■ 2. Section 430.2 is amended by adding 

definitions for ‘‘energy use of a type of 

consumer product which is used by 

households,’’ and ‘‘household,’’ in 

alphabetical order to read as follows: 

§ 430.2 Definitions. 

* * * * * 

Energy use of a type of consumer 

product which is used by households 

means the energy consumed by such 

product within housing units occupied 

by households (such as energy for space 

heating and cooling, water heating, the 

operation of appliances, or other 

activities of the households), and 

includes energy consumed on any 

property that is contiguous with a 

housing unit and that is used primarily 

by the household occupying the housing 

unit (such as energy for exterior lights 

or heating a pool). 

* * * * * 

Household means an entity consisting 

of either an individual, a family, or a 


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Federal Register / Vol. 75, No. 53 / Friday, March 19, 2010 / Rules and Regulations 13223 

group of unrelated individuals, who 

reside in a particular housing unit. For 

the purpose of this definition: 

(1) Group quarters means living 

quarters that are occupied by an 

institutional group of 10 or more 

unrelated persons, such as a nursing 

home, military barracks, halfway house, 

college dormitory, fraternity or sorority 

house, convent, shelter, jail or 

correctional institution. 

(2) Housing unit means a house, an 

apartment, a group of rooms, or a single 

room occupied as separate living 

quarters, but does not include group 

quarters. 

(3) Separate living quarters means 

living quarters: 

(i) To which the occupants have 

access either: 

(A) Directly from outside of the 

building, or 

(B) Through a common hall that is 

accessible to other living quarters and 

that does not go through someone else’s 

living quarters, and 

(ii) Occupied by one or more persons 

who live and eat separately from 

occupant(s) of other living quarters, if 

any, in the same building. 

* * * * * 

[FR Doc. 2010–6045 Filed 3–18–10; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL ELECTION COMMISSION 

11 CFR Parts 100 and 106 

[Notice 2010–08] 

Funds Received in Response to 

Solicitations; Allocation of Expenses 

by Separate Segregated Funds and 

Nonconnected Committees 

AGENCY: Federal Election Commission. 

ACTION: Final rules. 

SUMMARY: The Federal Election 

Commission (‘‘Commission’’) is 

removing its rule regarding funds 

received in response to solicitations. 

The Commission is also removing two 

additional rules regarding the allocation 

of certain expenses by separate 

segregated funds and nonconnected 

committees. The United States District 

Court for the District of Columbia 

ordered that these rules are vacated, in 

accordance with a Court of Appeals 

decision. Further information is 

provided in the supplementary 

information that follows. 

DATES: Effective: April 19, 2010. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Robert M. Knop, Assistant General 

Counsel, or Mr. Neven F. Stipanovic, 

Attorney, 999 E Street, NW., 

Washington, DC 20463, (202) 694–1650 

or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: The 

Commission is revising its regulations to 

conform to the decision of the United 

States Court of Appeals for the District 

of Columbia Circuit in EMILY’s List v. 

FEC, 581 F.3d 1 (DC Cir. 2009). On 

September 18, 2009, the court ruled that 

11 CFR 100.57, 106.6(c), and 106.6(f) 

violated the First Amendment of the 

United States Constitution. See EMILY’s 

List v. FEC, 581 F.3d 1 (DC Cir. 2009). 

The court also ruled that 11 CFR 100.57 

and 106.6(f), as well as one provision of 

106.6(c), exceeded the Commission’s 

authority under the Federal Election 

Campaign Act (‘‘Act’’). See id. At the 

direction of the Court of Appeals, the 

United States District Court for the 

District of Columbia ordered that these 

rules are vacated. See Final Order, 

EMILY’s List v. FEC, No. 05–0049 

(D.D.C. Nov. 30, 2009). 

The Commission published a Notice 

of Proposed Rulemaking (‘‘NPRM’’) on 

December 29, 2009, in which it sought 

public comment on the proposed 

removal of rules at 11 CFR 100.57, 

106.6(c), and 106.6(f). See Notice of 

Proposed Rulemaking on Funds 

Received in Response to Solicitations; 

Allocation of Expenses by Separate 

Segregated Funds and Nonconnected 

Committees, 74 FR 68720 (Dec. 29, 

2009) (‘‘NPRM’’). The comment period 

closed on January 28, 2010. The 

Commission received two comments on 

the proposed rules, one of which was a 

comment from the Internal Revenue 

Service (‘‘IRS’’) stating that the proposed 

rules did not conflict with Internal 

Revenue Code or IRS regulations. The 

comments are available on the 

Commission’s website at http:// 

www.fec.gov/law/law_rulemakings.

shtml#emilyslistrepeal. 

For the reasons explained below, the 

Commission has decided to delete the 

rules at 11 CFR 100.57, 106.6(c), and 

106.6(f). The Commission’s final rules 

are identical to the proposed rules in the 

NPRM. 

Under the Administrative Procedure 

Act, 5 U.S.C. 553(d) and the 

Congressional Review of Agency 

Rulemaking Act, 5 U.S.C. 801(a)(1), 

agencies must submit final rules to the 

Speaker of the House of Representatives 

and the President of the Senate and 

publish them in the Federal Register at 

least 30 calendar days before they take 

effect. The final rules that follow were 

transmitted to Congress on March 15, 

2010. 

Explanation and Justification 

I. Deletion of 11 CFR 100.57—Funds 

Received in Response to Solicitations 

The Commission promulgated 11 CFR 

100.57 to specify when funds received 

in response to solicitations are 

considered to be contributions for 

purposes of the Act. Under paragraph 

(a) of section 100.57, funds provided in 

response to a communication were 

treated as contributions if the 

communication indicated that any 

portion of the funds received would be 

used to support or oppose the election 

of a clearly identified Federal candidate. 

Paragraph (b)(1) of section 100.57 

provided that all funds received in 

response to a solicitation described in 

section 100.57(a) that referred to both a 

clearly identified Federal candidate and 

a political party, but not to any nonFederal candidates, had to be treated as 

contributions. Paragraph (b)(2) stated 

that if a solicitation described in section 

100.57 referred to at least one clearly 

identified Federal candidate and one or 

more clearly identified non-Federal 

candidate, then at least fifty percent of 

the funds received in response to the 

solicitation had to be treated as 

contributions. Paragraph (c) of section 

100.57 provided an exception for certain 

solicitations for joint fundraisers 

conducted between or among 

authorized committees of Federal 

candidates and the campaign 

organizations of non-Federal candidates. 

The Commission is removing section 

100.57 in its entirety from its 

regulations because the Court of 

Appeals held that section 100.57 is 

unconstitutional and that it exceeded 

the Commission’s statutory authority 

under the Act. See EMILY’s List v. FEC, 

581 F.3d 1 (D.C. Cir. 2009). Accordingly, 

the District Court ordered that 11 CFR 

100.57 is vacated. See Final Order, 

EMILY’s List v. FEC, No. 05–0049 

(D.D.C. Nov. 30, 2009). 

The Commission received one 

comment on the proposal to remove 

section 100.57. That commenter agreed 

with the Commission that 11 CFR 

100.57 should be removed in its 

entirety. 

II. Deletion of 11 CFR 106.6(c) and 

106.6(f)—Allocation of Expenses 

Between Federal and Non-Federal 

Activities by Separate Segregated Funds 

and Nonconnected Committees 

The Commission promulgated 11 CFR 

106.6 to provide separate segregated 

funds (SSFs) and nonconnected 

committees making disbursements in 

connection with both Federal and nonFederal elections with instructions as to 

how to allocate their administrative 


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