40646 Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Proposed Rules 

DEPARTMENT OF ENERGY 

10 CFR Chapters II, III, and X 

Notice of Availability of Preliminary 

Plan for Retrospective Analysis of 

Existing Rules 

AGENCY: Office of the General Counsel, 

Department of Energy. 

ACTION: Notice of availability; request 

for comment. 

SUMMARY: Through this notice, the 

Department of Energy (DOE) announces 

the availability of its preliminary plan 

for retrospective analysis of existing 

rules to make the agency’s regulatory 

program more effective and less 

burdensome in achieving its regulatory 

objectives. As part of its implementation 

of Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review,’’ 

issued by the President on January 18, 

2011, DOE sought public comments on 

whether any of its existing regulations 

should be modified, streamlined, 

expanded, or repealed. DOE has 

considered these comments in the 

development of its preliminary plan. 

DATES: DOE will accept comments, data, 

and information regarding its EO 13563 

Preliminary Plan received no later than 

August 1, 2011. 

ADDRESSES: Interested persons are 

encouraged to submit comments, 

identified by ‘‘EO 13563 Preliminary 

Plan,’’ by any of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

E-mail: 

Regulatory.Review@hq.doe.gov. Include 

‘‘EO 13563 Preliminary Plan’’ in the 

subject line of the message. 

Mail: U.S. Department of Energy, 

Office of the General Counsel, 1000 

Independence Avenue, SW., Room 

6A245, Washington, DC 20585. 

Copies of the final plan and 

comments received are available for 

public inspection at the U.S. 

Department of Energy, Forrestal 

Building, 1000 Independence Avenue, 

SW., Washington, DC 20585–0121. 

Public inspection can be conducted 

between 9 a.m. and 4 p.m., Monday 

through Friday, except Federal holidays. 

The preliminary plan and public 

comments can also be accessed online at 

http://www.gc.energy.gov/1705.htm and 

at http://www.regulations.gov/

exchange/sites/default/files/doc_files/

Department%20of%20Energy_05_18_

2011.pdf. 

FOR FURTHER INFORMATION CONTACT: 

Daniel Cohen, Assistant General 

Counsel for Legislation, Regulation, and 

Energy Efficiency, U.S. Department of 

Energy, Office of the General Counsel, 

1000 Independence Avenue, SW., 

Washington, DC 20585. E-mail: 

Regulatory.Review@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: On 

January 18, 2011, the President issued 

Executive Order 13563, ‘‘Improving 

Regulation and Regulatory Review,’’ to 

ensure that Federal regulations seek 

more affordable, less intrusive means to 

achieve policy goals, and that agencies 

give careful consideration to the benefits 

and costs of those regulations. 

Additionally, the Executive Order 

directs agencies to consider how best to 

promote retrospective analyses of 

existing rules. DOE’s preliminary plan 

was issued on April 29, 2011, and 

posted for public review at http://

www.regulations.gov/exchange/sites/

default/files/doc_files/

Department%20of%20Energy_05_18_

2011.pdf. DOE now seeks additional 

comments on its preliminary plan so 

that it can consider and incorporate 

further public input in its final plan and 

ongoing retrospective review process. 

In developing its preliminary plan, 

DOE issued a Request for Information 

(RFI) seeking public comment on how 

best to review its existing regulations 

and to identify whether any of its 

existing regulations should be modified, 

streamlined, expanded, or repealed. (76 

FR 6123, Feb. 3, 2011) In addition, DOE 

sought reply comments on the 

suggestions received in response to the 

RFI to foster a public dialogue on its 

retrospective review processes. 

DOE received numerous detailed 

comments in response to its RFI and 

request for reply comments. These 

comments, available at http:// 

www.gc.energy.gov/1705.htm and 

summarized below, have informed 

DOE’s development of its preliminary 

plan and its early regulatory review 

efforts pursuant to Executive Order 

13563. The results of these initial efforts 

are also described below and in the 

preliminary plan. DOE is committed to 

continuing these efforts and to 

maintaining a consistent culture of 

retrospective review and analysis of its 

regulations. As specified in the 

preliminary plan, DOE will continually 

engage in review of its rules to 

determine whether there are burdens on 

the public that can be avoided by 

amending or rescinding existing 

requirements. Because public input 

plays a significant role in the 

retrospective review of DOE regulations, 

DOE also intends to seek public 

comment on a regular basis as part of 

this review process. 

Comments Received 

DOE received seven comments on 

current DOE certification, compliance, 

and enforcement rules. Commenters 

encouraged DOE to allow for voluntary 

independent certification programs 

(VICPs) as a way to reduce regulatory 

burdens (A.O. Smith Corporation, 2; 

Association of Home Appliance 

Manufacturers (AHAM), 6; Zero Zone 

Inc.) or to allow manufacturers to do inhouse testing (Zero Zone Inc.). One 

commenter suggested DOE use the AirConditioning Heating and Refrigeration 

Institute (AHRI) VICP as a model. 

(Hussmann Corporation, 4). DOE 

received three comments that the March 

2011 final rule on certification, 

compliance, and enforcement is 

increasing manufacturer costs and 

burdens of compliance, including 

concern about the number of base 

models required for testing. (A.O. Smith 

Corporation, 1–2; AHRI, 3; Ingersoll 

Rand, 1; Zero Zone Inc.). In addition, 

one comment encouraged DOE to move 

forward with verification testing and lab 

accreditation rulemakings (Appliance 

Standards Awareness Project (ASAP), 

3). Another urged DOE to leverage third 

party verification programs that utilize 

independent testing laboratories and are 

developed by industry trade 

associations in these rulemakings. 

(AHAM, 6) 

DOE received eight comments on the 

collection of information the 

commenters believed to be unnecessary 

or ineffectively used. Related to 

appliance efficiency standards 

rulemakings, two comments expressed 

concern that the discount rate used by 

DOE for residential and commercial 

consumers was too low. (Edison Electric 

Institute (EEI), 5–6; Ingersoll Rand, 2). 

Another comment suggested that the 

payback period used by DOE to 

calculate consumer savings is overly 

long and does not consider the impact 

of regulatory changes on the employees 

of manufacturers and their families. 

(Ingersoll Rand, 2). In other DOE 

program areas, two comments expressed 

concern that certain DOE programs 

collect information unrelated to and 

unnecessary for achieving their 

objectives. (AHRI, 2; Massachusetts 

Institute of Technology (MIT), 1–2). 

Another comment encouraged DOE to 

streamline its reporting databases to 

improve efficiency and reduce 

maintenance costs. (Honeywell FM&T, 

4). In addition, two commenters 

encouraged DOE to review the terms 

and conditions of its federal research 

agreements. (Council on Governmental 

Relations (COGR), 3; MIT, 1–2). 


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Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Proposed Rules 40647 

Three comments addressed consensus 

standards. One comment encouraged 

DOE to develop a formal process for 

reviewing consensus standards for test 

procedures as they are developed. 

(AHRI, 2). Two others encouraged the 

use of consensus standards developed 

by interested parties and setting forth 

energy conservation standards for 

covered products and commercial 

equipment, as a way for DOE to meet its 

energy savings goals while leveraging 

commercial mechanisms and expertise. 

(ASAP, 2; AHAM, 2). 

One commenter encouraged DOE to 

develop and publish a timeline for its 

approval process of import and export 

authorization of fossil energy to improve 

certainty. (Cheniere, Inc., 5). The 

commenter also suggested that 

intervenors in import and export 

authorization request proceedings 

should have to show changed 

circumstances to reduce uncertainty and 

delays in these proceedings. (Cheniere, 

Inc., 4). Another commenter encouraged 

DOE to limit its use of interpretive rules. 

(National Association of Home Builders 

(NAHB), 25–27). 

Two commenters addressed using 

curves in DOE analysis, including 

learning curves for costs of production 

and experience curves for equipment 

price. (ASAP, 3; California Investor 

Owned Utilities (CAIOU), 4–5). 

Two commenters provided 

suggestions on how to maximize net 

benefits, including considering factors 

other than direct economic impact on 

purchasers when developing standards 

and balancing competing 

considerations. (ASAP, 1–2; Ingersoll 

Rand, 2). 

DOE received numerous comments 

concerning energy conservation 

standards that the commenters asserted 

failed to justify the imposed costs or are 

overly burdensome. Two comments 

were concerned that the energy 

conservation standards for residential 

storage water heaters over 55 gallons 

will be overly burdensome on 

consumers and manufacturers. 

(American Gas Association (AGA), 2; 

EEI, 2). Two comments addressed 

energy conservation standards for 

refrigeration equipment: one commenter 

suggested the life cycle costs for 

residential equipment under the new 

standard will be too high for most 

consumers (EEI, 4, 7) and another 

commenter suggested the testing process 

for commercial equipment could be 

streamlined and simplified through 

computer modeling.(Hussmann 

Corporation, 2). Eight commenters 

addressed energy conservation 

standards for direct heating equipment 

(DHE) as applied to decorative hearth 

products. (AHRI, 1–2; AGA, 4; Empire 

Comfort Systems, 1–2; Hearth and Home 

Technologies, 1–2; Hearth, Patio & 

Barbecue Association (HPBA), 1–2; 

Lennox Hearth Products; NAHB, 35; 

National Propane Gas Association 

(NPGA), 1–2). DOE notes that it is 

currently involved in litigation over its 

standards for decorative hearth heaters. 

Any retrospective review of these 

regulations will depend upon the 

outcome of this litigation. Additionally, 

one comment suggested that DOE 

should set appliance energy 

conservation standards, but allow states 

to set building standards for new 

construction, while another encouraged 

DOE to focus its building programs on 

existing buildings. (CAIOU, 2–3; NAHB, 

31) Another comment suggested DOE 

reevaluate its performance standards for 

products assembled on site. (CAIOU, 2). 

Three commenters addressed the 

process by which guidance is 

communicated. One comment 

encouraged DOE to streamline the 

guidance given to stakeholders on 

products covered by energy 

conservation standards and test 

procedures used to measure compliance 

with those standards. (AHAM, 6–7). 

Another suggested streamlining of 

exceptions or additions to DOE orders. 

(Honeywell FM&T, 4–5). Another 

comment stressed the importance of 

transparency in calculating economic 

and technological justifications. (NAHB, 

6, 27). 

DOE received six comments regarding 

coordination and harmonization with 

agencies, state governments, and 

industry. Four comments stressed the 

importance of coordination with other 

agencies in relevant program areas, such 

as the Environmental Protection 

Agency’s ENERGY STAR Program, the 

Federal Trade Commission, and U.S. 

Customs and Border Protection for the 

implementation and enforcement of its 

appliance efficiency program. (A.O. 

Smith Corporation, 1; AHAM, 6; AHRI, 

2; ASAP, 3; Hussmann Corporation, 2– 

3). Two comments addressed the 

importance of coordination with 

industry and other stakeholders to 

reduce burden. (A.O. Smith 

Corporation, 1; AHAM, 6). Another 

comment encouraged DOE to publish its 

final test procedure for battery charging 

systems because of its interaction with 

the proposed standards for these 

products being considered in California. 

(AHAM, 4). This commenter also urged 

DOE to consider industry burden in 

developing its test procedure for clothes 

washers (AHAM, 5–6). 

DOE received comments on 

regulations that the commenters 

claimed are outdated, working well, or 

not operating as well as expected. One 

commenter praised the 1996 Process 

Improvement Rule and encouraged DOE 

to continue following those procedures 

rather than the updated procedures set 

out by DOE in November 2010 and 

available at http://www1.eere.energy.

gov/buildings/appliance_standards/

pdfs/changes_standards_process.pdf. 

(EEI, 2, 13–14). Another comment 

encouraged the continued use of 

contract H Clauses. (Honeywell FM&T, 

5). One comment suggested that DOE 

update its site specific reporting 

requirements to reflect policy changes. 

(Honeywell FM&T, 3). Another 

comment encouraged DOE to modernize 

its approach to National Environmental 

Policy Act (NEPA) rulemaking. (Alton 

Strategic Environmental Group, 3–9). 

One comment suggested that certain 

construction subcontractor regulations 

were cumbersome. (Honeywell FM&T, 

3). Additionally, another encouraged 

DOE to restructure its state preemption 

waiver conditions. (CAIOU, 3). 

DOE received numerous comments 

about how to structure a retrospective 

analysis. Four commenters stressed the 

need for transparency in retrospective 

analysis. (CAIOU, 1; Honeywell FM&T, 

2; Ingersoll Rand, 2–3; Institute for 

Policy Integrity, NYU School of Law, 9). 

Five commenters encouraged DOE to 

consider the real world impact of 

regulations over relying on modeling 

and assumptions. (ASAP, 1; EEI, 12–13; 

Ingersoll Rand, 2; Institute for Policy 

Integrity, NYU School of Law, 7–8; 

NAHB; 13–14). Four commenters also 

encouraged DOE to do an initial review 

of existing regulations to prioritize 

regulations for which revision will have 

the biggest impact. (AGA, 5–6; AHAM, 

5; Institute for Policy Integrity, NYU 

School of Law, 5–6; NAHB, 16–19). 

Another comment encouraged DOE to 

revisit previous decisions denying 

petitions for regulation to see if 

regulation may now be warranted. 

(Institute for Policy Integrity, NYU 

School of Law, 3). One comment 

suggested DOE publish a monthly 

schedule on current rulemaking. 

(CAIOU, 4). 

DOE received comments on 

information and data about the costs, 

burdens, and benefits of existing 

regulations. One commenter encouraged 

DOE to evaluate the value of continuous 

efficiency improvement in industry. 

(Honeywell FM&T, 5). Another 

commenter encouraged DOE to evaluate 

its cost sharing and contracts programs. 

(COGR, 4–5). One commenter also 

encouraged DOE to revise its 

consideration of climate variations for 

energy conservation standards, which 

can affect payback. (CAIOU, 4). Two 


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40648 Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Proposed Rules 

commenters addressed the full-fuelcycle analysis of energy consumption. 

(AGA, 5; EEI, 4–5, 7). 

DOE received comments on 

unnecessarily complicated regulations, 

reporting requirements, or regulatory 

processes other than the certification 

reporting requirements discussed 

previously. Three commenters 

suggested DOE streamline and simplify 

its various reporting requirements. 

(COGR, 3; Honeywell FM&T, 4; MIT, 2). 

Early Retrospective Review Results 

Although DOE’s implementation of 

Executive Order 13563 has only just 

begun, as a result of public input and its 

own internal analysis, DOE has already 

accomplished or proposed a number of 

significant changes in retrospective 

review of specific regulations: 

1. In response to industry concerns 

that a new energy-efficiency rule would 

cost as much as $500 million to 

implement and would significantly 

interrupt industry research and 

development efforts, DOE has proposed 

an 18-month extension of that rule. 

2. DOE has issued a notice of 

proposed rulemaking considering the 

use alternative efficiency determination 

methods (AEDMs), such as computer 

modeling, to reduce testing burden and 

eliminate many millions of dollars of 

testing costs. This effort is particularly 

significant as industry has suggested 

that testing under the current rule could 

take several years to complete and 

undermine their research and 

development efforts. 

3. DOE has issued a proposed rule to 

amend its existing NEPA regulations. 

The changes, proposed primarily for the 

categorical exclusions provisions, are 

intended to better align DOE’s 

categorical exclusions with current 

activities and recent experiences, and to 

update the provisions with respect to 

current technologies and regulatory 

requirements. DOE believes the changes 

made by this rulemaking could save the 

taxpayers as much as $100 million over 

ten years and provide greater 

transparency to the public as to the 

NEPA standards that DOE employs in 

analyzing particular technologies. 

4. DOE is undertaking a series of 

initiatives to reduce paperwork burdens 

on recipients of financial assistance. 

DOE expects these initiatives to result in 

more than a 90% reduction—a 

reduction of over 270,000 hours—in the 

paperwork burden imposed on 

recipients of DOE’s financial assistance. 

5. DOE has sought public input on the 

potential uses of computer simulations 

to further reduce testing costs and 

burdens relating to efficiency 

certifications. 

6. After receiving public comment on 

a draft interpretive rule, DOE issued 

enforcement guidance to explain how 

DOE intends to enforce existing water 

conservation standards for 

showerheads. DOE also provided an 

enforcement grace period of two years to 

allow such manufacturers to sell any 

remaining non-compliant products. 

DOE changed course in order to enforce 

the existing standards in a manner that 

avoids needless economic dislocation 

that some industry representatives 

estimated at $400 million. 

7. DOE has issued a proposed rule to 

standardize procedures for the 

submission and protection of trade 

secrets and privileged or confidential 

commercial or financial information. 

8. DOE is considering revisions to its 

regulation concerning sales from the 

Strategic Petroleum Reserve, to 

streamline the process for periodic 

review and publication of the standard 

contract provisions. 

9. DOE has published a test procedure 

for fluorescent lamp ballasts that 

reduces testing burdens by adopting a 

metric suggested by public comment. 

The revised procedure is anticipated to 

reduce testing time, and therefore 

laboratory testing costs, by 50 percent. 

Request for Further Public Input 

DOE seeks input on its preliminary 

retrospective review plan, which sets 

forth its intended process for regulatory 

review pursuant to Executive Order 

13563. The preliminary plan and 

comments received to date are available 

at http://www.gc.energy.gov/1705.htm. 

DOE welcomes further comments 

submitted by August 1, 2011. See the 

ADDRESSES section for further 

information on how to submit 

comments. 

Issued in Washington, DC, on June 30, 

2011. 

Sean A. Lev, 

Acting General Counsel. 

[FR Doc. 2011–17012 Filed 7–8–11; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 139 

[Docket No. FAA–2010–0247; Notice No. 11– 

01] 

RIN 2120–AJ70 

Safety Enhancements Part 139, 

Certification of Airports; Reopening of 

Comment Period 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM); Reopening of comment period. 

SUMMARY: This action reopens the 

comment period for an NPRM that was 

published on February 1, 2011. In that 

document, the FAA proposed several 

safety enhancements for airports. 

Recently, regulations.gov had a software 

upgrade which resulted in documents 

previously submitted to the docket that 

were not accessible as a result of the 

upgrade. This action reopens the 

comment period to allow the public 

additional time to review the initial 

regulatory evaluation. 

DATES: The comment period for the 

NPRM published on February 1, 2011 

(76 FR 5510) and reopened (76 FR 

20570) April 13, 2011, is reopened again 

until July 26, 2011. 

ADDRESSES: You may send comments 

identified by docket number FAA– 

2010–0247 using any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30; U.S. Department of 

Transportation (DOT), 1200 New Jersey 

Avenue, SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery or Courier: Take 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. 

Privacy: The FAA will post all 

comments it receives, without change, 

to http://www.regulations.gov, including 

any personal information the 

commenter provides. Using the search 

function of the docket Web site, anyone 

can find and read the electronic form of 

all comments received into any FAA 

docket, including the name of the 


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