SUPPLEMENTARY INFORMATION:

I. Background

The Commission issued the Energy Labeling Rule (“Rule”) in 1979,^[1] pursuant to the Energy Policy and Conservation Act of 1975 (“EPCA”).^[2] The Rule requires energy labeling for major home appliances and other consumer products to help consumers compare competing models. It also contains labeling requirements for refrigerators, refrigerator-freezers, freezers, dishwashers, water heaters, clothes washers, room air conditioners, furnaces, central air conditioners, heat pumps, plumbing products, lighting products, ceiling fans, and televisions.

The Rule requires manufacturers to attach yellow EnergyGuide labels to many covered products and prohibits retailers from removing these labels or rendering them illegible. In addition, it directs sellers, including retailers, to post label information on websites and in paper catalogs from which consumers can order products. EnergyGuide labels for most covered products contain three key disclosures: Estimated annual energy cost, a product's energy consumption or energy efficiency rating ( printed page 31755) as determined by DOE test procedures, and a comparability range displaying the highest and lowest energy costs or efficiency ratings for all similar models. For cost calculations, the Rule specifies national average costs for applicable energy sources ( e.g., electricity, natural gas, oil) based on DOE estimates. Under the Rule, the Commission periodically updates comparability range and annual energy cost information based on manufacturer data submitted pursuant to the Rule's reporting requirements. The Rule sets a five-year schedule for updating range of comparability and annual energy cost information.^[3] Pursuant to that schedule the Commission proposes the following amendments.

II. Proposed Amendments

As discussed below, the Commission proposes to update comparability ranges and national average energy cost figures (Appendix K1 and K2) for several product categories consistent with the Rule's five-year schedule. The proposed amendments also update § 305.10 to clarify that manufacturers must determine capacity for room air conditioners using current DOE requirements.

A. Comparability Range and Energy Cost Revisions

In accordance with the Rule's five-year schedule for comparability range updates (§ 305.12), this Document proposes revisions to the comparability range and energy cost information in the Rule's appendices for televisions, refrigerators and freezers, dishwashers, water heaters, room air conditioners (ranges only), clothes washers, furnaces, and pool heaters.^[4] In addition, the Commission proposes updating the average energy cost figures manufacturers must use to calculate a model's estimated energy cost for the label based on national average cost figures published by DOE.^[5] Specifically, the proposed amendments update the energy cost tables in Appendix K1 and K2.^[6] This document also contains proposed conforming changes to the sample labels in the Rule's appendices to reflect the new range and cost information.

Pursuant to 305.12, manufacturers must begin using this information on new product labels within 90 days after publication of a final notice announcing updated ranges for specific products.^[7] Manufacturers do not have to relabel products labeled prior to the effective date of the changes. For room air conditioners, the Commission proposes setting an October 1, 2022 effective date for those ranges because this label must appear on product boxes, and such package changes can require additional planning and coordination. The proposed October date coincides with the annual production cycle ( i.e., the cooling season) for those products.

The Commission does not propose amending range and cost information for central air conditioner and portable air conditioner labels because the Commission recently updated those ranges.^[8] Additionally, the Commission does not propose changing the cost figure for room air conditioner labels because such a change would make room air conditioner labels inconsistent with cost information on portable air conditioners, a similar product category. Accordingly, the electricity cost figure (¢13/kWh) for those two categories appear in Appendix K2 and has been used to create the room air conditioner ranges (Appendix E) in the proposed amendments.

B. Capacity Determinations for Room Air Conditioners

Finally, the proposed amendments update § 305.10 to clarify that manufacturers must determine capacity for room air conditioners using current DOE requirements. Specifically, the amendment eliminates obsolete text related to rounding and updates references to existing DOE requirements for capacity determinations. The Commission proposes making the change effective on October 1, 2022 to coincide with the effective date of the Commission's previously published requirements for EnergyGuide labels for portable air conditioners.^[9]

III. Request for Comment

The Commission seeks comment on the amendments proposed in this document. You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before July 11, 2022. Write “Range Updates, Matter No. R611004” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the website https://www.regulations.gov.

Because of the public health emergency in response to the COVID-19 outbreak and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the https://www.regulations.gov website. To ensure the Commission considers your online comment, please follow the instructions on the web-based form.

If you file your comment on paper, write “Range Updates, Matter No. R611004” on your comment and on the envelope, and mail your comment to the following address: Federal Trade Commission, Office of the Secretary, Mail Drop H-144, 600 Pennsylvania Avenue NW, Washington, DC 20580.

Because your comment will be placed on the public record, you are solely responsible for making sure your comment does not include any sensitive or confidential information. Your comment should not contain sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other state identification number or foreign country equivalent; passport number; financial account number; or credit or debit card number. You are also solely responsible for making sure your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “[t]rade secret or any commercial or financial information which . . . is privileged or confidential”—as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)—including competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” ( printed page 31756) and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c). Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted publicly at www.regulations.gov —as legally required by FTC Rule 4.9(b), 16 CFR 4.9(b)—we cannot redact or remove your comment, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Visit the FTC website to read this document and the news release describing it. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments it receives on or before July 11, 2022. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/​siteinformation/​privacypolicy.

Because written comments appear adequate to present the views of all interested parties, the Commission has not scheduled an opportunity for presentation of oral comments regarding these proposed amendments. Interested parties may request an opportunity to present views orally. If such a request is made, the Commission will publish a document in the Federal Register stating the time and place for such oral presentation(s) and describing the procedures that will be followed. Interested parties who wish to present oral views must submit a request, on or before July 11, 2022, in the form of a written comment that describes the issues on which the party wishes to speak. If no oral presentations are scheduled, the Commission will base its decision on the written rulemaking record.

IV. Paperwork Reduction Act

The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act (PRA). OMB has approved the Rule's existing information collection requirements through February 29, 2024 (OMB Control No. 3084-0069). The proposed amendments do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

V. Regulatory Flexibility Act

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601-612, requires that the Commission conduct an analysis of the anticipated economic impact of the proposed amendment on small entities. The RFA requires that the Commission provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a rule unless the Commission certifies that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605. The proposed amendments merely implements routine updates to comparability range information and other minor clarifications. The proposed amendments do not significantly change the substance or frequency of the Rule's recordkeeping, disclosure, or reporting requirements. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the proposed amendments will not have a significant economic impact on a substantial number of small entities.

For the reasons stated above, the Commission proposes to amend part 305 of title 16 of the Code of Federal Regulations as follows:

1. The authority citation for part 305 continues to read as follows:

Authority: 42 U.S.C. 6294.

2. In § 305.10, revise paragraph (f) to read as follows:

3. In § 305.25, revise paragraphs (f)(4) and (5) to read as follows:

4. Revise appendices A1 through A9 to Part 305 to read as follows:

Appendix A1 to Part 305—Refrigerators With Automatic Defrost

Appendix A2 to Part 305—Refrigerators and Refrigerator-Freezers With Manual Defrost

Appendix A3 to Part 305—Refrigerator-Freezers With Partial Automatic Defrost

Appendix A4 to Part 305—Refrigerator-Freezers With Automatic Defrost With Top-Mounted Freezer No Through-the-Door Ice

Appendix A5 to Part 305—Refrigerator-Freezers With Automated Defrost With Side-Mounted Freezer No Through-the-Door Ice

( printed page 31759)

Appendix A6 to Part 305—Refrigerator-Freezers With Automatic Defrost With Bottom-Mounted Freezer Without No Through-the-Door Ice

Appendix A7 to Part 305—Refrigerator-Freezers With Automatic Defrost With Bottom-Mounted Freezer With Through-the-Door Ice Service

Appendix A8 to Part 305—Refrigerator-Freezers With Automatic Defrost With Side-Mounted Freezer With Through-the-Door Ice Service

Appendix A9 to Part 305—All Refrigerators and Refrigerator-Freezers

5. Revise appendices B1 through B3 to Part 305 to read as follows:

Appendix B1 to Part 305—Upright Freezers With Manual Defrost

( printed page 31761)

Appendix B2 to Part 305—Upright Freezers With Automatic Defrost

Appendix B3 to Part 305—Chest Freezers and All Other Freezers

6. Revise appendices C1 and C2 to Part 305 to read as follows:

Appendix C1 to Part 305—Compact Dishwashers

Range Information

“Compact” includes countertop dishwasher models with a capacity of fewer than eight (8) place settings. Place settings shall be in accordance with Appendix C to 10 CFR part 430, subpart B. Load patterns shall conform to the operating normal for the model being tested.

( printed page 31762)

Appendix C2 to Part 305—Standard Dishwashers

Range Information

“Standard” includes dishwasher models with a capacity of eight (8) or more place settings. Place settings shall be in accordance with Appendix C to 10 CFR part 430, subpart B. Load patterns shall conform to the operating normal for the model being tested.

7. Revise appendices D1 through D5 to Part 305 to read as follows:

Appendix D1 to Part 305—Water Heaters—Gas

Appendix D2 to Part 305—Water Heaters Electric

Appendix D3 to Part 305—Water Heaters—Oil

( printed page 31763)

Appendix D4 to Part 305—Water Heaters—Instantaneous—Gas

Appendix D5 to Part 305—Water Heaters—Instantaneous—Electric

8. Appendix E to Part 305 is revised to read as follows:

Appendix E1 to Part 305—Room Air Conditioners

9. Revise appendices F1 and F2 to Part 305 to read as follows:

( printed page 31764)

Appendix F1 to Part 305—Standard Clothes Washers

“Standard” includes all household clothes washers with a tub capacity of 1.6 cu. ft. or more.

Appendix F2 to Part 305—Compact Clothes Washers

“Compact” includes all household clothes washers with a tub capacity of less than 1.6 cu. ft.

10. Revise appendices G1 through G8 to Part 305 to read as follows:

Appendix G1 to Part 305—Furnaces—Gas

Appendix G2 to Part 305—Furnaces—Electric

Appendix G3 to Part 305—Furnaces—Oil

( printed page 31765)

Appendix G4 to Part 305—Mobile Home Furnaces—Gas

Appendix G5 to Part 305—Mobile Home Furnaces—Oil

Appendix G6 to Part 305—Boilers—(Gas)

Appendix G7 to Part 305—Boilers—(Oil)

Appendix G8 to Part 305—Boilers—(Electric)

11. Revise appendices J1 and J2 to read as follows:

Appendix J1 to Part 305—Pool Heaters—Gas

( printed page 31766)

Appendix J2 to Part 305—Pool Heaters—Oil

12. Revise appendices K1 and K2 to read as follows:

Appendix K1 to Part 305—Representative Average Unit Energy Costs for Refrigerators, Refrigerator-Freezers, Freezers, Clothes Washers, Dishwashers, and Water Heater Labels

This Table contains the representative unit energy costs that must be utilized to calculate estimated annual energy cost disclosures required under this Part for refrigerators, refrigerator-freezers, freezers, clothes washers, dishwashers, and water heaters. This Table is based on information published by the U.S. Department of Energy in 2022.

Appendix K2 to Part 305—Representative Average Unit Energy Costs for Room Air Conditioner and Portable Air Conditioner Labels

This Table contains the representative unit energy costs that must be utilized to calculate estimated annual energy cost disclosures required under this Part for room air conditioners and portable air conditioners. This Table is based on information published by the U.S. Department of Energy in 2017.

15. In appendix L, revise prototype labels 1, 2, 8, 9, 10, and sample labels 1, 2, 3, 4, 5, 6, 9, 9A, 14, 15, and 16 to read as follows

( printed page 31767)

( printed page 31768)

( printed page 31769)

( printed page 31770)

( printed page 31771)

( printed page 31772)

( printed page 31773)

( printed page 31774)

( printed page 31775)

( printed page 31776)

( printed page 31777)

( printed page 31778)

( printed page 31779)

( printed page 31780)

( printed page 31781)

( printed page 31782)

Dissenting Statement of Commissioner Christine S. Wilson

Today the Commission announces proposed required updates to the compatibility ranges in the Energy Labeling Rule. Since 2015, the Commission has sought comment on provisions of this Rule on several occasions and has made numerous amendments to the Rule.^[1] On each occasion, I have urged the Commission to seek comment on the more prescriptive aspects of this Rule. My concerns about the highly prescriptive nature of this Rule are detailed in my prior dissents.^[2]

In March 2020, we sought comment on some of the more prescriptive provisions of the Energy Labeling Rule ^[3] and received many interesting and thoughtful comments.^[4] Rather than act on these comments or proposals, though, the Commission chose to finalize only proposals necessary to conform to Department of Energy changes.^[5]

Today, we again make necessary changes to the Rule but fail to take the opportunity to revisit the Rule's highly prescriptive requirements. I acknowledge that the FTC is required to publish an Energy Labeling Rule, that manufacturers are required to post an Energy Label on their products and that consumers likely benefit from some uniformity of information in these labels. But it is unnecessary for our labeling guidance to include highly prescriptive requirements that detail the ( printed page 31783) trim size dimensions for labels, including the precise width (between 5 1/4 ″ to 5 1/2 ″) and length (between 7 3/8 ″ and 7 5/8 ″); the number of picas for the copy set (between 27 and 29); the type style (Arial) and setting; the weight of the paper stock on which the labels are printed (not less than 58 pounds per 500 sheets or equivalent); and a suggested minimum peel adhesive capacity of 12 ounces per square inch.^[6]

The Notice we issue today includes 13 pages of prototype labels, complete with the array of requirements described above. For example, Prototype Label 10 for Vertical Rectangular Television Labels specifies not only the categories of information to be displayed, but also the precise font and size in which that information is to be printed. The Estimated Yearly Energy Cost must appear in 12/14.4 Arial Narrow Bold. And while the phrase “US Government” at the top of the label must be printed in 7/9 pt Arial Narrow, “ visitftc.gov/energy” at the bottom must be printed in 8 pt Arial Narrow. As I have indicated on previous occasions, we could identify the categories of information to be disclosed clearly and conspicuously, and then allow companies to create appropriate labels.

Once again, I urge the Commission to act on the comments we received in 2020, eliminate the more prescriptive aspects of the Rule, and maximize the positive impact of this Rule for consumers. As long as we are statutorily mandated to maintain this Rule, we should endeavor to make it beneficial for consumers and competition.

Regrettably, the Commission once again has chosen to forego this route, instead making only minor changes to the Rule necessary for conformity. Accordingly, I dissent.

87 FR 31754