DOS-10-07-00003-E Appliance and Equipment Energy Efficiency Standards

3/7/07 N.Y. St. Reg. DOS-10-07-00003-E

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 10

March 07, 2007

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

EMERGENCY RULE MAKING

 

I.D No. DOS-10-07-00003-E

Filing No. 212

Filing Date. Feb. 20, 2007

Effective Date. Feb. 20, 2007

Appliance and Equipment Energy Efficiency Standards

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of Parts 910, 911 and 912 to Title 19 NYCRR.

Statutory authority:

Energy Law, section 16-106

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

Energy Law, section 16-106(2) requires that matters which are necessary to insure the proper implementation and enforcement of the provisions of art. 16 of the Energy Law dealing with appliance and equipment energy efficiency standards be adopted on and after June 30, 2006.

Subject:

Appliance and equipment energy efficiency standards.

Purpose:

To adopt provisions dealing with implementation and enforcement of art. 16 of the Energy Law.

Substance of emergency rule:

Article 16 of the Energy Law provides for Appliance and Equipment Energy Efficiency Standards and directs the Secretary of State in consultation with the President of the New York State Energy Research and Development Authority (NYSERDA) to promulgate regulations to achieve the purposes of the article. This rule making adds three new Parts to Title 19 of the Official Compilation of Codes, Rules and Regulations of the State of New York and implements in part the requirements and directives of Article 16 of the Energy Law.

Part 910 entitled General Requirements sets forth the purpose and applicability of Article 16 of the Energy Law and the regulations adopted to implement the statute. It lists the fourteen categories of appliances/equipment that are subject to the statute and the associated regulations (section 910.1). It defines a number of terms, many of which are also defined in the statute, which clarify the types of products to which energy efficiency standards shall apply (section 910.2). Finally, Part 910 imposes the requirement that manufacturers, whose products are subject to Article 16 and the associated regulations, shall submit written confirmation attesting that each model of the product sold or offered for sale in New York State conforms with the applicable efficiency standard. As an alternative to certification, a manufacturer may submit to the Department of State a letter stating that the product at issue is certified in the State of California as meeting the applicable standards of the California Code of Regulations (section 910.3).

Part 911 entitled Preempted Standards addresses the circumstances created by adoption of the Energy Policy Act of 2005 by the United States Congress subsequent to New York's adoption of Article 16 of the Energy Law. Section 16-106(1)(b) of the Energy Law provides that no standard adopted pursuant to Article 16 of the Energy Law shall go into effect if federal government energy efficiency performance standards regarding a product preempt the state standards, unless such preemption is waived pursuant to federal law. The Energy Policy Act of 2005 provides for the adoption of energy conservation standards for ten of the fourteen categories of products that Article 16 of the Energy Law lists as subjects for New York energy efficiency standards. Therefore, absent a waiver of federal preemption, any New York standard for one of the ten categories of product covered by the federal statute would be preempted. Part 911 sets forth an affirmative statement that the Secretary of State in consultation with the President of NYSERDA has determined that it is not in the interests of New York to petition the federal government for a waiver of federal preemption. The Secretary, however, reserves the right to petition for such a waiver in the future if it is determined to be in the interests of New York State.

Part 912 entitled Metal Halide Lamp Fixtures provides that, on or after January 1, 2008, metal halide lamp fixtures that are capable of operating a lamp in a vertical operating position or within 15 degrees of a vertical operating position, and are capable of operating lamps rated equal to or greater than 150 watts and less than or equal to 500 watts, shall not be sold, offered for sale, or installed in New York State if they contain a probe start ballast. In addition, manufacturers of metal halide lamp fixtures shall be required to submit to the Department of State a written certification attesting to compliance with applicable standards for each model of metal halide lamp fixture subject to the regulation. A certification shall include the following information for each fixture listed therein: trade name on package; model number; lamp orientation (vertical base-up, vertical base-down, horizontal, universal, or other); type of ballast; and lamp rating in watts.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire May 20, 2007.

Text of emergency rule and any required statements and analyses may be obtained from:

Steven Rocklin, Department of State, 41 State St., Albany, NY 12231, [phone], e-mail: [e-mail]

Regulatory Impact Statement

1. Statutory Authority

Paragraph b of subdivision 1 of Energy Law § 16-106 authorizes the Secretary of State, in consultation with the President of the New York State Energy Research and Development Authority (“NYSERDA”), to promulgate regulations establishing energy efficiency performance standards for products listed in subdivision 1 of Energy Law § 16-104. Section 16-106 further provides that no standard shall go into effect if federal government energy efficiency performance standards regarding such product preempt state standards, unless preemption has been waived pursuant to federal law. Subdivision 1 of Energy Law § 16-104 states that the provisions of Article 16 of the Energy Law apply to the testing, certification and enforcement of efficiency standards for metal halide lamp fixtures sold, offered for sale, or installed in New York. In addition, subparagraph (iii) of paragraph b of subdivision 2 of Energy Law § 16-106 reads as follows:

Each metal halide lamp fixture that is sold, offered for sale or installed in New York state on or after January first, two thousand eight and that operates a lamp in a vertical position (including fixtures that operate lamps rated for use within fifteen degrees of vertical) and that is capable of operating lamps rated equal to or greater than one hundred fifty Watts and less than or equal to five hundred Watts shall not contain a probe start metal-halide ballast.

2. Legislative Objectives

Chapter 431 of the Laws of 2005 adopted Article 16 of the Energy Law. Article 16, entitled Appliance and Equipment Energy Efficiency Standards, sets forth provisions for the testing, certification, and enforcement of efficiency standards for certain appliances sold, offered for sale, or installed in New York. Although no purpose is explicitly stated in the statute, its implicit purpose is to reduce or restrain growth in the use of energy by mandating that specified appliances use electrical energy and water in a more efficient manner. The Legislature listed fourteen categories of appliances in Article 16 for which efficiency standards are required to be adopted. Among the listed categories are metal halide lamp fixtures.

When Article 16 was enacted, the Legislature considered the possibility that the Federal government might adopt standards for such appliances at some future date, and provided that any standards which might be adopted by New York would not remain effective if preempted by federal standards. Subsequent to the adoption of Article 16, the United States Congress enacted the Energy Policy and Conservation Act (EPCA) of 2005 (42 U.S.C. 6291 et seq.). Sections 135 and 136 of the Act direct the Department of Energy to establish energy efficiency standards for certain categories of appliances. Ten categories of appliances regulated pursuant to EPCA are also specified in Article 16. These categories are:

• automatic commercial ice cube machines;

• ceiling fan light kits;

• commercial pre-rinse spray valves;

• commercial refrigerators, freezers and refrigerator-freezers;

• illuminated exit signs;

• very large commercial packaged air-conditioning and heating equipment;

• pedestrian traffic signal modules;

• torchiere lighting fixtures;

• unit heaters; and

• vehicular traffic signal modules.

Section 6297 of the Energy Policy and Conservation Act provides that energy conservation standards promulgated by the Department of Energy supersede any state regulation with regard to testing and labeling requirements [42 U.S.C. 6297(a)(1)(A)]. However, there are EPCA provisions which permit States to petition the Department of Energy for a waiver of Federal preemption [42 U.S.C. 6297(d)]. The Federal standards have been adopted and no waiver of Federal preemption has been sought. The purposes of Article 16 would not be advanced by promulgating standards for products for which Federal standards have been established.

3. Needs and Benefits

The rule notifies affected entities that the Secretary of State, in consultation with the President of NYSERDA, has determined that it is not in the interests of the State at this time to petition the Secretary of Energy for a waiver for products subject to federal energy efficiency standards. The rule reserves the right to petition for a waiver at some future time. The rule also notifies manufacturers that as of January 1, 2008, the sale of metal halide lamp fixtures that use probe start ballasts will be prohibited.

In the case of metal halide lamp fixtures, the State Legislature established a specific standard by prohibiting the sale or installation of fixtures that use probe start ballasts. The rule includes definitions needed to identify which products are covered and which products are exempted from the rule. It establishes a certification system for all covered products as required by Section 16-106.2(a)(iii) of the Energy Law, prohibits sale, offering for sale or installation of non-complying metal halide fixtures, and identifies information required for the certification of metal halide fixtures.

The provisions for certification [19 NYCRR 910.3] provide two alternatives to manufacturers of covered products; they may certify products directly with New York State or, where the product is certified in the State of California, they may notify the Department of State of the particulars of the State of California certification. In recent years, several states, including Arizona, California, Connecticut, Massachusetts, Maryland, New Jersey, Oregon, Pennsylvania, Rhode Island and Washington have established appliance and equipment energy efficiency standards. California implemented a program in advance of other states, and as a result of such action, standards and procedures established by the California Energy Commission (CEC) have become a benchmark for other states implementing energy efficiency programs. Benefits accrue to the Department and to regulated parties from acceptance of CEC certification. The Department of State benefits from acceptance of CEC certification in that workload and the need for additional staff, database systems and other resources will be reduced. Manufacturers will benefit from a reduction in the burden of submitting certification documentation to multiple states.

The regulatory provisions regarding metal halide fixtures closely follow the explicit provisions of section 16-106.2(b)(iii) of the Energy Law. They provide an exception for floodlights intended for exterior installation. These fixtures are designed mostly for the use of universal position metal halide lamps, which can operate at any angle. As the most frequent use of exterior rated metal halide floodlights is for parking lots and facade illumination, they are most often installed in a vertical or near-vertical orientation, but need to have the capability to be aimed at angles exceeding 15 degrees from vertical. In order to limit the number of different fixture designs that would otherwise be required, it is necessary to include this exception. There are drawbacks to using universal operating position metal halide lamps and fixtures compared with those designed specifically for vertical operation. They are less efficient in their use of electrical energy, and may have shorter lamp life thereby raising life-cycle costs. The floodlight exception is therefore narrowly drawn.

It is estimated that when fully implemented, the removal of probe start ballasts from the metal halide fixture market will result in annual energy savings of 405.9 million kilowatt-hours. This would lead to a consequent reduction of greenhouse gas emissions of 608.9 tons of sulphur dioxide, 304.4 tons of oxides of nitrogen and 221,623.0 tons of carbon dioxide. At the statewide estimated electricity cost (provided by NYSERDA) of $ 0.1038 per kWh, the estimated annual savings for electricity would be over 42 million dollars. The net economic benefit calculated over an anticipated fifteen year metal halide fixture life is $ 546,957,000. This is estimated to provide a total net present value benefit of $ 576,632,000.

4. Costs

a. Costs to Regulated Parties for Implementation of and Compliance with the Rule

While there are a number of alternative technologies to probe start ballasts for metal halide fixtures, the most economical alternative is a fixture using a magnetic pulse start ballast. It is therefore assumed that the rule will lead regulated parties to install fixtures which utilize pulse start ballasts. Pulse start fixtures for wattage ratings up to approximately 300 watts are approximately 25 percent higher in cost than equivalent probe start fixtures. However, pulse start fixtures for 368/462 wattage rating are approximately 20 percent less expensive than equivalent probe start fixtures. Depending upon wattage rating, lamps for pulse start fixtures are approximately 14 percent to 58 percent more expensive than equivalent rated lamps for probe start fixtures. The net present value of life cycle costs for discontinuing the use of pulse start metal halide fixtures has been estimated at $ 29,675,000.

It is anticipated that manufacturers of metal halide lamp fixtures will reduce the quantity of probe start fixtures and lamps that they manufacture, and increase the quantity of production of other technologies, primarily pulse start fixtures and lamps. Distributors and retailers will similarly modify their purchases. Manufacturers, distributors and retailers may experience additional costs if they do not accurately project demand for probe start fixtures for the period between adoption of this rule and January 1, 2008, at which date Article 16 would prohibit the sale of such fixtures. In order to minimize potential negative impact, the rule would allow continued sale of existing stock for three months following January 1, 2008.

b. Costs to the Agency, the State, and Local Governments for the Implementation and Continuation of the Rule

The rule will require the Department of State to establish a certification system and maintain records of certifications. This will result in increased costs for staff and information technology. The rule will reduce other potential costs for the Department of State by relieving it of the need to develop efficiency standards, test procedures, and a certification system for those products where Federal standards have pre-empted State regulation. Other State agencies and local governments will not incur costs as no action on their part is necessary to implement the rule.

5. Local Government Mandates

Adoption of the rule will not impose any mandates on local governments.

6. Paperwork

This rule will impose reporting and record keeping requirements on manufacturers, distributors, and retailers of covered products. Manufacturers will be required to prepare and submit certifications of compliance with the regulations, or letters that attest to submission of certifications to the California Energy Commission (CEC). Distributors and retailers will be required to maintain copies of certifications or letters attesting to CEC certification for products in their inventory. Paperwork requirements are minimized by permitting verification of certification by the California Energy Commission to substitute for a de novo certification by New York State. This will reduce the amount of paperwork required to be submitted to the Department of State, as well as simplifying the operations of regulated parties.

7. Duplication

The proposal does not duplicate, nor is it inconsistent with any existing Federal or State law.

8. Alternatives

As an alternative to accepting Federal energy efficiency standards, the Department considered developing New York standards for products covered by the Federal standards. After taking that step, the Department would have been required to petition the Secretary of Energy for a waiver to implement the New York standards. The Secretary of State, in consultation with the President of NYSERDA, determined that such alternative should not be pursued at this time. This determination is based upon a substantial likelihood that pursuing this alternative would not meet the test required by 42 U.S.C. 6297(d)(1)(B). That section provides that in considering petitions, the Secretary of Energy must find that a state regulation “…has established by a preponderance of evidence that such State regulation is needed to meet unusual and compelling State or local energy or water interests.” “Unusual and compelling State or local energy or water interests” is defined as meaning those which are substantially different than those prevailing in the United States generally, and are such that differences in cost, benefits, burdens and reliability of savings resulting from State regulation make it preferable or necessary.

The Department considered not permitting certification with the California Energy Commission to be acceptable for certification in New York, but determined there is no benefit to be gained from establishing a separate certification system where one already exists. The specificity of Article 16 of the Energy Law does not permit any substantive alternatives with regard to standards for metal halide lamp fixtures.

9. Federal Standards

Federal standards for categories of appliances are set forth in 10 CFR 430 and 431. There are no Federal standards for metal halide lamp fixtures that are capable of operating a lamp in a vertical operating position or within fifteen degrees of a vertical operating position, where the lamps are rated at 150 watts to 500 watts.

10. Compliance Schedule

Regulated parties will be able to comply with the rule at the time the individual provisions take effect. The requirements pertaining to the sale, offer for sale, and installation of metal halide lamp fixtures will take effect January 1, 2008.

Regulatory Flexibility Analysis

1. Effect of rule

All parts of New York State will be subject to the rule. There will be no different impact on small businesses or local governments than there is on other New York entities. This rule making establishes a certification system for all covered products and sets forth certain requirements for metal halide lamp fixtures sold, offered for sale or installed on and after January 1, 2008. Manufacturers are required to submit certifications to the Department of State, unless they have previously submitted certifications to the California Energy Commission (CEC). Manufacturers are also required to provide copies of certifications to distributors and retailers of covered products, who will be required to maintain copies of such certifications.

2. Compliance Requirements

The rule making will impose no compliance requirements on local governments. Manufacturers of appliances covered by the regulation must submit documentation certifying their products as compliant with the regulations. Some of these manufacturers may be small businesses. In addition, there are numerous distributors of electrical products, many of which are small businesses. The rule making will impose a requirement on them to maintain records.

3. Professional Services

No professional services will be required specifically for the purpose of compliance with the rule.

4. Compliance Costs

This rule making will not impose any compliance costs on local governments. Affected small businesses are likely to incur compliance costs. Distributors and retailers of electrical equipment will be prohibited from selling probe start metal halide lamp fixtures on and after January 1, 2008. To the extent that they make inaccurate judgements concerning product demand and timing, there is likely to be an economic impact from maintaining unsalable inventory or not having adequate inventory to meet demand. Distributors and retailers will also be required to maintain copies of certifications provided by manufacturers in their files.

5. Economic and Technological Feasibility

While there are a number of alternative technologies to probe start ballasts for metal halide fixtures, the most economical alternative is a fixture using a magnetic pulse start ballast. Adoption of the rule will likely lead regulated parties to install fixtures which utilize pulse start ballasts. Pulse start fixtures for wattage ratings up to approximately 300 watts are approximately 25 percent higher in cost than equivalent probe start fixtures. However, pulse start fixtures for 368/462 wattage rating are approximately 20 percent less expensive than equivalent probe start fixtures. Depending upon wattage rating, lamps for pulse start fixtures are approximately 14 percent to 58 percent more expensive than equivalent rated lamps for probe start fixtures. The net present value of life cycle costs for discontinuing the use of pulse start metal halide fixtures has been estimated at $ 29,675,000.

6. Minimizing Adverse Impact

Adoption of the rule will not adversely impact small businesses and local governments. Regulated parties will not need to expend efforts to bring products into compliance with State standards in addition to applicable Federal standards. The rule will remove uncertainty regarding whether a petition to waive preemption to the Secretary of Energy would be successful, in whole or part. It will also eliminate potential costs related to tracking and segregating products to be sold within New York State from products intended to be sold in other states.

The acceptance of certification with the California Energy Commission (CEC) is expected to reduce the burden of compliance on regulated parties. Regulated parties which have previously certified their products to CEC will not be required to undertake additional compliance activities, except for reporting such compliance to the Department of State.

If distributors or retailers are prohibited from selling existing inventory after January 1, 2008, they may have to absorb the costs of having purchased such stock and of disposing of it to locations where the sale and installation has not been prohibited. In order to minimize this potential negative impact, the Department of State proposes to allow the continued sale of existing stock for three months following January 1, 2008.

7. Small Business and Local Government Participation

To assist the Department of State and NYSERDA in the development of this proposed rule, an appliance efficiency advisory committee was appointed by NYSERDA. Members of the advisory committee have presented the interests of small businesses and local governments. The advisory committee consists of representatives of energy efficiency and consumer advocacy groups, manufacturers, retailers, state agencies and federal agencies. The advisory committee has met four times. The Department of State and NYSERDA presented to the advisory committee their intention not to seek a waiver from federal standards for the ten classes of products for which the federal Department of Energy is promulgating standards, but to retain the authority to seek such waiver if it is determined at some later date to be in the interests of the State. Energy efficiency and consumer advocates have stated that such retention of authority is important. The Department and NYSERDA also presented a draft of this rule making to the advisory committee and representatives of manufacturers and business did not object to the Department's proposed course of action.

Rural Area Flexibility Analysis

1. Types and Estimated Numbers of Rural Areas:

This rule will be applicable in all areas of New York. All rural areas will be subject to the rule.

2. Reporting, Recordkeeping and other Compliance Requirements; and Professional Services:

This rule making establishes a certification system for all products subject to its provisions and establishes requirements for metal halide lamp fixtures sold, offered for sale, or installed in New York on and after January 1, 2008. The new regulations require manufacturers to submit certifications to the Department of State, unless they have previously submitted certifications to the California Energy Commission (CEC). Manufacturers are also required to provide copies of certifications to distributors and retailers of covered products, who will be required to maintain copies of such certifications. With regard to metal halide lamp fixtures, the rule making prohibits the installation of fixtures that operate in a vertical position and use a probe start ballast. Compliance with the rule will not require a need for professional services in rural areas beyond those services currently provided by architects or engineers who prepare specifications for lighting projects.

3. Costs:

Regulated parties will incur costs in complying with the rule. While there are a number of alternative technologies to probe start ballasts for metal halide fixtures, the most economical alternative is a fixture using a magnetic pulse start ballast. It is therefore assumed that adoption of the rule will lead regulated parties to install fixtures which utilize pulse start ballasts. Pulse start fixtures for wattage ratings up to approximately 300 watts are approximately 25 percent higher in cost than equivalent probe start fixtures. However, pulse start fixtures for 368/462 wattage rating are approximately 20 percent less expensive than equivalent probe start fixtures. Depending upon wattage rating, lamps with pulse start fixtures are approximately 14 percent to 58 percent more expensive than equivalent rated lamps with probe start fixtures. The net present value of life cycle costs for discontinuing the use of pulse start metal halide fixtures has been estimated at $ 29,675,000.

Building owners and developers as well as manufacturers, distributors and retailers of lighting fixtures and lamps may incur costs in complying with the rule. Manufacturers will reduce the quantity of probe start fixtures and lamps that they manufacture, and increase the quantity of production of other technologies, primarily pulse start fixtures and lamps. Distributors and retailers will similarly modify their purchases.

As the rule is applicable statewide, there will be no impacts on rural areas that differ from impacts incurred in non-rural areas.

4. Minimizing Adverse Impact:

Regulated parties will not need to expend efforts to bring covered products into compliance with State standards in addition to Federal standards, since the rule provides that New York State will not petition the Secretary of Energy for an exemption from federal standards at this time. The rule will also reduce potential costs for regulated parties related to tracking and segregating products to be sold within New York State from products intended to be sold in other states.

The acceptance of certification with CEC is expected to reduce the burden of compliance on regulated parties. Regulated parties which have previously certified their products to CEC will not be required to undertake additional compliance activities, except for reporting such compliance to the Department of State.

Reporting and record keeping costs will have an adverse impact on regulated parties. As there is no laboratory testing of metal halide lamp fixtures required as a result of this proposed rule, such impacts are expected to be minimal. If distributors or retailers are prohibited from selling existing inventory after January 1, 2008, they may have to absorb the costs of having purchased such stock and of disposing of it to locations where the sale and installation has not been prohibited. In order to minimize this potential negative impact, the Department of State intends to provide for the continued sale of existing stock for a three month period following January 1, 2008.

5. Rural Area Participation:

To assist the Department of State and NYSERDA in the development of the rule, an Appliance Efficiency Advisory Committee was appointed by NYSERDA. While no member of the committee was appointed for the specific purpose of representing interests of rural areas, individuals representing consumer interests, including interests of consumers living in rural areas, are members of the advisory committee. Also, members of the committee representing business interests represent the interests of all businesses in the state, including businesses in rural areas.

Job Impact Statement

The Department of State has determined that it is apparent from the nature and purpose of the rule that it will not have a substantial adverse impact on jobs and employment opportunities. This rule will establish procedures for certification of products regulated pursuant to Article 16 of the Energy Law and will establish energy efficiency standards provided for in Article 16 for certain metal halide lamp fixtures. Although the proposed rule will increase costs for construction and maintenance of buildings, it is estimated that it will reduce annual electricity demand by 405.9 million kilowatt hours when fully phased in. Calculated over the fifteen year estimated life span for metal halide lamp fixtures, energy savings are expected to exceed higher installation costs, resulting in a positive economic impact of $473 million. Therefore, this rule making will not have a substantial net adverse impact on jobs and employment opportunities within New York.